BREAKING : Supreme Court Stays Elections Process In OBC Seats In MP Local Body Polls; Directs To Re-Notify Those As General Seats

The Supreme Court on Friday stayed the election process in the seats reserved for Other Backward Classes(OBCs) in the local body elections in Madhya Pradesh.

The Court passed the order while hearing a miscellaneous application seeking stay of the election notification dated December 4, 2021 issued by the Madhya Pradesh State Election Commission in respect of OBC seats in local bodies.

The bench of Justices AM Khanwilkar and CT Ravikumar also directed the Election Commission to re-notify the seats for general category.

The bench observed that the OBC reservation notification was in conflict with the Top Court's judgement in Vikas Kishanrao Gawali v State Of Maharashtra and Ors LL 2021 SC 13 and Krishna Murthy (Dr.) & Ors. vs. Union of India & Anr., (2010) 7 SCC 202. Also, the bench pointed out that a similar OBC quota in Maharashtra local elections was stayed recently.

The order passed by the Court observed :

"Fact remains that the elections to all the local bodies in the State of MP notified provisioning reservation for OBC , to that extent the election process needs to be stayed forthwith since it is in conflict with Vikas Kishanrao Gawali v State Of Maharashtra and Ors LL 2021 SC 13 and Krishna Murthy (Dr.) & Ors. vs. Union of India & Anr., (2010) 7 SCC 202 . Besides similar situation was operating in the State of Maharashtra. Detailed orders have been passed. We direct the State Election Commission to stay the election process only in respect of OBC in all the local bodies and to re notify those seats for general category."

The Top Court further observed that the election for General Category seats would proceed along with other elections already notified but directed for declaring the results of all the seats (including re-notified General seats) together on the same day.

"In other words, the dispensation directed in respect of Maharashtra Cases would apply proprio vigore to the State of Madhya Pradesh as well, in respect of all the local bodies making no distinction between urban and rural local bodies," the bench further noted in this regards.

The bench also requested Solicitor General Tushar Mehta, to impress upon the concerned Authority to issue a communication to the respective State Election Commissions to strictly adhere to the enunciation of this Court, which was declaration of law by a three Judge Bench in Vikas Kishanrao Gawali (supra) to first comply with the triple test being a pre-condition, before notifying reservation of seats for other Backward Classes in the local bodies under their jurisdiction to which SG graciously agreed.

Courtroom Exchange

When the matter was called for hearing, Senior Advocate Vivek Tankha appearing for the petitioner submitted that pursuant to the Top Court's order the petitioners had approached the High Court but the High Court did not change the date of hearing and listed the matter for the month of January, 2022.

Explaining the contents of the Ordinance dated November 21, 2021 Senior Counsel said,

"The ordinance was issued on November 21. We went to the High Court and placed before the Chief Justice of the High Court. He did not change the date but only heard us on the next date. Ordinance was promulgated on Nov 21 and by that the rotation determination as done by Art 243C & D has been annulled. It has annulled all the proceedings of determination and rotation completed in 2019-2020. It is annulled on the ground that it is more than 1 year old."

"After that the ordinance says that we now restore the position of category and position as existed in 2014," Senior Counsel added.

Stating that the matter was sub judice before the High Court, the bench said that it would permit the petitioner to amend the writ and direct for declaring the election results after the disposal of the writ. The bench further referred to the matter pertaining to Maharashtra in which it had set aside the elections.

"Main matter pending is before the High Court. We'll permit you to amend the same and then if the elections proceed let the results be declared after disposing of the writ, that is what we will say. We had set aside the Maharashtra election too. If that's right it will be set right for us. Not now. Mr Tankha, we are saying that your main matter is listed before the HC in January, we'll permit you to amend the WP before the HC, asking for further relief."

"If the court is seisin of the matter, anything done will be subject to the order. In Maharashtra also we were allowed to conduct the elections and then later on we had set aside the entire elections," bench further added.

While the senior counsel clarified that the matters that were pending before the High Court related to the validity of the provisions of M.P. Municipalities (Reservation of Office of Mayor and President) Rules, 1999, the bench said,

"All those elections will be subject to the outcome of the writ. You notify that. Are you not aware of the judgement of this court? If it is in breach of that it is not only unconstitutional but also contempt."

At this juncture, Advocate Siddharth Seth along with Advocate Kartik Seth appearing for the State Election Commission entered appearance.

Expressing its inclination to stay the election and referring to the Maharashtra case, the bench said,

"You take the responsibility we are saying. Without triple test fulfilment there cannot be OBC immediately, if that is happening you correct that. There is no difficulty, we can stay the entire election. You notify the same as what happened in the Maharashtra case. You should immediately correct your action. Don't go by what the state is telling you, go by what the law is saying. If you don't correct yourself, we'll put you in contempt."

While counsel for the State Election Commission relied on Article 243 O 1(a) of the Constitution of India to permit for continuation of the electoral process, the bench said,

"If elections are to be held as a constitutional mandate, do that. That has been said that as per 5 and 3 judge bench judgement. You correct, tax payers money goes down the drain. Correct it. Elections will be jeopardized. We don't want confusion with the public exchequer money. We don't want the state election commission to do something at the dictate of somebody else. We are directing the State Election Commission to stay the process, we don't want any confusion whatsoever."

"You should be completely concerned because it will be your state exchequer that will be wasted. If elections are held, all efforts will be wasted here," the bench further added.

Appearing for the State of Madhya Pradesh, Senior Advocate Maninder Singh submitted that there was a possibility of the High Court to take up the batch of petitions on January 21, 2022.

At one point in the hearing, the bench expressed its unhappiness over the manner in which the notification has been issued. The bench said :

"Please don't try to play with fire and you should understand the situation. Don't make decisions based on political compulsions on you. Every state will have diff pattern? There is only one Constitution of India you will have to abide by that and there is only 1 Supreme Court so far. This is irresponsible behaviour of the Election Commission then. This is not acting responsibly. You were there, when the same order was being dictated there, you were there. We don't want any experiments to be done in Madhya Pradesh. Bring it in sync with the Maharashtra case."

Background

The petitioner had approached the High Court assailing the validity of the Madhya Pradesh Ordinance No 14/2021 Madhya Pradesh Panchayat Raj and Gram Swaraj (Amendment) Adhiniyam, 2021 related to reservation and delimitation in the State of Madhya Pradesh.

Observing that the Gwalior Bench of the High Court of Madhya Pradesh by its order dated 07.12.2021 had rejected the plea for interim relief on the identical facts, the bench of Chief Justice Ravi Malimath and Vijay Kumar Shukla on December 9, 2021 had rejected the interim relief in the petition.

"Judicial discipline demands that when a Co-ordinate Bench has passed an interim order, the same is required to be followed. Hence, in view of the aforesaid order, the interim relief prayed for herein is rejected," the High Court had observed.

Assailing the order passed by the High Court, the petitioner had approached the Supreme Court.

On December 15, 2021 the Supreme Court while disposing the special leave petition assailing Madhya Pradesh High Court's order had granted the petitioners liberty to move before the High Court for urgent relief the next day itself that is on December 16, 2021.

The Top Court had further observed that the Election Notification dated December 4, 2021 had not been challenged before the High Court.

Case Title: Manmohan Nagar v Madhya Pradesh State Election Commission

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