Plea In Supreme Court Challenges Maharashtra's Ordinances Providing 27% OBC Reservation In Local Body Elections

The Supreme Court today directed for serving advance copy of the petitions challenging the ordinance promulgated by Maharashtra Government that provide for blanket 27% reservation to the category of backward classes in the local body elections. 

The matter which assailed Maharashtra Ordinance III of 2021 promulgated on September 23, 2021 and Maharashtra Ordinance VI dated October 1, 2021 issued by the State Election Commission was listed before the bench of Justices AM Khanwilkar and CT Ravikumar.

When the matter was called for hearing, Senior Advocate Vikas Singh appearing for the petitioners submitted that, "There is an ordinance brought in bringing in the very same section which was quashed. Without data you can't make a reservation there."

On Senior Advocate Shekhar Naphade's submission that the State of Maharashtra did not have the copy of the petitions, the bench directed the same to be supplied to the state's standing counsel and the State Election Commission. The matter was thereafter adjourned for Monday i.e. December 6, 2021.

Details Of The Writ Petition By Kisanrao Kundalikrao Gawali (Ex MLA and past president of Akola Zilla Parishad)

It was argued in the petition that the ordinances provide for 27% reservation to the category of Backward Classes of Citizens was contrary to the judgements of the Top Court in Vikas Kishanrao Gawali v State Of Maharashtra and Ors  LL 2021 SC 13  and the Constitutional Bench judgement of the Court in the case of Krishna Murthy v Union of India 2010 7 SCC 202.

"Admittedly, the triple test as laid down by this Hon' ble Court in the case of Vikas Kishanrao Gawali supra has not been followed and though a commission has been entrusted the task of conducting the contemporaneous rigorous enquiry, the same has not yet been completed. In Fact the State Government through Writ Petition (Civil) No. 841 of 2021 has in fact sought the raw data from the Union of India and the said petition is pending adjudication before this Hon'ble Court," the petition stated.

Contending that the prescription of reservation through the amendments introduced by the ordinance to the Statutory Dispensation is contrary to the law laid down by the Top Court, the petitioner has sought relief for setting aside the notifications dated November 9, 2021, November 24, 2021 and November 26, 2021 (notifying the schedule for elections to 15 Panchayat Samitis in the Districts of Bhandara & Gondia and 105 Nagar Panchayats throughout the State respectively) issued by the State Election Commission.

Relief has also been sought to direct the Backward Class Commission, Maharashtra to furnish the details of the contemporaneous and rigorous inquiry and collection of empirical data done by it under the reference to it in terms of the dated June 29, 2021 issued by Other Backward Bahujan Welfare Department before the Top Court.

Details Of The Special Leave Petition By Rahul Ramesh Wagh

Preferred by Rahul Chetan Ramesh Wagh, the petition assailed the Bombay High Court's Interlocutory Order dated October 22, 2021 wherein the petition assailing the ordinance was adjourned for November 22, 2021.

It was argued that the provisions in the State Statutes made it crystal clear that reservation was to be provided based on the population of the concerned area.

"As such in case the constitutional reservation provided for SCs and STs were to consume the entire 50 percent of seats in the local bodies concerned and in some cases in Scheduled Area even beyond 50 per cent, in respect of such local bodies, the question of providing further reservation to OBCs would not arise at all. To put it differently, the quantum of reservation for OBCs ought to be local body specific and be so provisioned to ensure that it does not exceed the quantitative limitation of 50 per cent (aggregate) of vertical reservation of seats for SCs/STs/OBCs taken together," the petition stated.

It was further averred that the State Authorities were obliged to fulfil other preconditions before reserving seats for OBCs in the local bodies.

The SLP also stated that the foremost requirement was to collate adequate materials or documents that could help in identification of Backward Classes for the purpose of reservation by conducting a contemporaneous rigorous empirical inquiry into the nature and implications of backwardness in the local bodies concerned through an independent dedicated Commission established for that purpose.

"Thus, the State legislations cannot simply provide uniform and rigid quantum of reservation of seats for OBCs in the local bodies across the State that too without a proper enquiry into the nature and implications of backwardness by an independent Commission about the imperativeness of such reservation. At the same time, the reservation cannot be by way of a static arrangement and must be reviewed from time to time so as not to violate the principle of overbreadth of such reservation," petition further stated.

The petition(s) have been filed through Advocate On Record Chandra Prakash.

Case Title: Kisanrao Kundalikrao Gawali V. The State Of Maharashtra And Ors.| W.P.(C) No. 1316/2021 & Rahul Ramesh Wagh V. The State Of Maharashtra And Ors.| SLP(C) No. 19756/2021

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