OBC Quota In Maharashtra Local Body Polls : Supreme Court Says Suggestions Of Backward Classes Commission Can't Be Accommodated After Election Process Has Been Notified

a. The statistics of population of the BCCs is different as per different data sets available with the Government. According to the survey conducted on the basis of Voter's List, the proportion of BCCs in the total population has been observed to be around 37%.

b. In local bodies, reservation for the Scheduled Castes/Scheduled Tribes are given on the basis of their population data statutorily derived from the decadal census. Similarly, for the BCCs, it would be more appropriate to devise a similar methodology and compile the data for the BCCs for each local body.

c. Reservation for the BCCs should be given in proportion to their population in each local body, without affecting the Statutory reservation for Scheduled Castes and Scheduled Tribes and subject to the overall reservation limit of 50%.

Pursuant to the said report of the dedicated Commission, the State Government has filed an application seeking the Court's direction that Election Programme be held as per the provisions of Maharashtra Act No. 19 of 2022 and Maharashtra Act No. 20 of 2022, and that the reservation pattern in respect of all local bodies across Maharashtra be notified in accordance with the Report dated 07.07.2022.

A Bench comprising Justices AM Khanwilkar and J.B. Pardiwala observed that though the State Election Commission (SEC) can alter the dates of the notified election programme, the election itself cannot be retrieved.

"Issuance of notification itself is commencement of election. Dates can be altered by Commission, but election cannot be retrieved by Commission (SEC). Once the nomination process starts we cannot interdict. There is a constitutional bar", the bench orally observed.

The bench was hearing application filed in the petitions challenging the introduction of 27% OBC reservation in local body elections in the State. Last year, the Supreme Court had stayed the OBC quota on the ground that the "triple-tests" for implementing reservation in elections have not been satisfied.

In view of the letter circulated by the Counsel for the Petitioner, the Bench adjourned the hearing on the present application till 19.07.2022. Solicitor General Mr. Tushar Mehta appearing for the State of Maharashtra objected to the letter seeking adjournment, vehemently arguing the urgency in the matter. He submitted -

"I'll point out the urgency. Now that the triple test has been complied with, subject to satisfaction of your lordship. The Commission has taken exhaustive exercise. 13th (July) is the commencement of one election. Some elections took place without the reservation."

He sought the indulgence of the Bench to allow tweaking of the election programme to accommodate the suggestion of the Commission appointed to look into the particulars of the OBC reservation.

"It can go ahead but in a day or two, it can be tweaked to fit in the suggestions of the Commission."

The Bench reiterated, "Where nomination is already over there it is not possible." However, it was ready to permit deferment, where the nomination was yet to be notified. It orally observed -

"Where it is yet to commence that date can be accommodated till next Tuesday. Where it has commenced do not stop it. The one that commences from tomorrow can be deferred till Tuesday."

The State Election Commission informed the Bench that nomination had been notified with respect to some areas on Tuesday (date of hearing). The Bench asked the SEC not to defer the same.

"Don't stall the one that has commenced today."

The Bench noted that the reservation exercise precedes the nomination. Therefore, wherever the nomination process has commenced that cannot be interfered with.

The SEC and Solicitor General apprised the Bench, that though nomination had commenced, as per their instructions, no nomination had been filed as on date. The Bench reckoned that whether the nomination has been filed or not bears no relevance to the present application, if nomination process has already been notified -

"If the nomination process has been notified, date has crossed, whether nomination has been received or not is not relevant. Otherwise we will go into another set of litigation where someone will claim they had filed a nomination. Only in those cases where nomination has not been notified, you can take steps".

It was further clarified -

"This IA's outcome will impact the ones that have not been notified yet."

The Bench went on to dictate the order, as under -

"In view of the letter circulated by AoR for petitioner, though request for adjournment has been objected to by the State, we defer the hearing till next Tuesday".

Background

Writ petitions were filed assailing provisions inserted/amended vide Maharashtra Ordinance no. 3/2021, permitting reservation upto 27% for OBC category in the local bodies, across the State of Maharashtra.

On a previous occasion, noting that when the State had not collated contemporaneous empirical data to ascertain the extent of reservation required to be provided in the local bodies, the State Election Commission (SEC) cannot provide reservation for OBC category without complying with the mandate of the triple test set out by the Apex Court in VikasKishanrao Gawali v. State of Maharashtra And Ors. The State had appointed a Dedicated Commission for the said purpose on 29.06.2021, but before it could submit its report, the Ordinance was introduced by the State Government. In this regard, the Court had directed the SEC not to proceed with the Election Programme already notified in respect of the OBC reserved seats in the concerned local authorities, while the election programme can proceed for the other reserved as well as general seats.

Subsequently, the Court directed the State Election Commission to issue fresh notification and conduct elections for the corresponding number of seats as open category, instead of OBC category, which, by way of an affidavit, the SEC vouched it had complied with.

In the interregnum, the State of Maharashtra, filed an Application urging the Court to permit the State to conduct the remaining election on the basis of the data available with the State with respect to the OBC category. The Court noted it would be appropriate that the data is scrutinised by the Commission appointed for the purpose. It can thereafter make recommendations to the State on the basis of which action can be taken.

By its order dated 04.05.2022, the Court directed SEC to announce the schedule for election for around 2486 local bodies whose term expired long back, within a period of two weeks. The direction was passed in a batch of petitions questioning the Constitutional validity of the Sections 2,3,4(1)(a) and 5 of the Mumbai Municipal Corporation Act, the Maharashtra Municipal Corporations Act and Maharashtra Municipal Councils, Nagar Panchayats, Industrial Townships Act (Amendment) Act, 2022, Sections 2,3,4 5 and 6 of the Maharashtra Village Panchayat and the Maharashtra Zilla Parishad and Panchayat Samiti (Amendment Act), 2022; and Section 2 of the Mumbai Municipal Corporation (Amendment) Act, 2022. The petitions along with other applications were directed to be listed for hearing on 12.07.2022.

[Case Title: Rahul Ramesh Wagh v State of Maharashtra]