OBC Reservation Cannot Exceed 50%: Supreme Court Reads Down Section 12(2)(c) Maharashtra Zilla Parishads and Panchayat Samitis Act

The Supreme Court read down Section 12(2)(c) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 which provides reservation of 27 per cent of seats in the Zilla Parishads and Panchayat Samitis.

"Reservation in favour of OBCs in the concerned local bodies can be notified to the extent that it does not exceed aggregate 50 per cent of the total seats reserved in favour of SCs/STs/OBCs taken together.", the bench comprising Justices AM Khanwilkar, Indu Malhotra and Ajay Rastogi observed.

The court observed that the rigid interpretation of the provision would be violative of the dictum laid down by the Constitution bench in K. Krishna Murthy (Dr.) & Ors. v. Union of India 2010) 7 SCC 202 that the State legislations providing for reservation of seats in respect of OBCs, it must ensure that in no case the aggregate vertical reservation in respect of SCs/STs/OBCs taken together should exceed 50 per cent of the seats in the concerned local bodies.

"The provision in the form of Section 12(2)(c) can be saved by reading it down, to mean that reservation in favour of OBCs in the concerned local bodies may be notified to the extent, that it does not exceed 50 per cent of the total seats reserved in favour of SCs/STs/OBCs taken together. In other words, the expression "shall be" preceding 27 per cent occurring in Section 12(2)(c), be construed as "may be" including to mean that reservation for OBCs may be up to 27 per cent but subject to the outer limit of 50 per cent aggregate in favour of SCs/STs/OBCs taken together, as enunciated by the Constitution Bench of this Court. On such interpretation, Section 12(2)(c) can be saved and at the same time, the law declared by the Constitution Bench of this Court can be effectuated in its letter and spirit.", the bench said.

The bench observed that the following triple test/conditions are required to be complied by the State before reserving seats in the local bodies for OBCs:

"To wit, (1) to set up a dedicated Commission to conduct contemporaneous rigorous empirical inquiry into the nature and implications of the backwardness qua local bodies, within the State; (2) to specify the proportion of reservation required to be provisioned local body wise in light of recommendations of the Commission, so as not to fall foul of overbreadth; and (3) in any case such reservation shall not exceed aggregate of 50 per cent of the total seats reserved in favour of SCs/STs/OBCs taken together. In a given local body, the space for providing such reservation in favour of OBCs may be available at the time of issuing election programme (notifications). However, that could be notified only upon fulfilling the aforementioned pre­conditions. Admittedly, the first step of establishing dedicated Commission to undertake rigorous empirical inquiry itself remains a mirage. To put it differently, it will not be open to respondents to justify the reservation for OBCs without fulfilling the triple test, referred to above"

The court ruled thus while disposing writ petitions which sought a declaration that Section 12(2)(c) of the Maharashtra Zilla Parishads and Panchayat Samitis Act is ultra vires the provisions of Articles 243­D and 243­T including Articles 14 and 16 of the Constitution of India. The writ petitions had also challenged the validity of the notifications issued by the State Election Commission, Maharashtra providing for reservation exceeding 50 per cent in respect of Zilla Parishads and Panchayat Samitis of districts Washim, Akola, Nagpur and Bhandara .

Partly allowing the writ petitions, the bench quashed the impugned notifications. "As a consequence, follow up steps taken on the basis of such notifications including the declaration of results of the candidates against the reserved OBC seats in the concerned local bodies, are declared non est in law; and the seats are deemed to have been vacated forthwith prospectively by the concerned candidate(s) in terms of this judgment.", the bench added.

Case: Vikas Kishanrao Gawali vs. State Of Maharashtra [WP 980 OF 2019]
Coram: Justices AM Khanwilkar, Indu Malhotra and Ajay Rastogi
Citation: LL 2021 SC 13

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