Supreme Court Stays HC Direction To Conduct UP Local Body Elections Without OBC Quota

The Supreme Court on Wednesday stayed the Allahabad High Court's direction to the Uttar Pradesh State Election Commission to notify the Urban Local Body Polls without OBC reservation.

Also, to ensure smooth administration in local bodies whose terms have expired, the Court allowed the delegation of powers to a 3-member body headed by the District Magistrate, with a condition that no major policy decision should be taken.

The order was passed by bench comprising Chief Justice DY Chandrachud and Justice PS Narasimha in a petition filed by the Uttar Pradesh government against the Allahabad High Court’s decision asking the State to conduct urban local body polls without OBC reservations. The Allahabad High Court had directed the State Election Commission to immediately notify the Urban Local Body Polls without OBC reservation. The court had ordered thus as it held that the state government doesn't fulfil the Triple Test Formality as laid down by the Apex Court in the case of Vikas Kishanrao Gawali v. State of Maharashtra & Ors. to determine the political backwardness of OBCs.

Arguments Raised in the Court

Solicitor General of India Tushar Mehta, appearing for the State of Uttar Pradesh commenced his submissions by stating that the state of Uttar Pradesh had formed a commission for backward classes and that a formal notification regarding the same had been issued. He provided the bench with a time frame regarding the expiration of the terms of local bodies and stated that terms were ending by end of January 2023. When asked whether the process was being carried expeditiously, he said–

"The Commission is requested to do it for six months. This can be curtailed within three months. Commission can do this exercise within three months without compromising the quality."

CJI Chandrachud expressed concern about the "constitutional vacuum" which will be created if elections are stalled despite the term of councils getting expired.

"Can there be a constitutional vacuum for three months? We see that one segment of the state would remain unrepresented. We see that angle. But can the committee not prepare a preliminary report and come? Why do you require three months? We are also worried about Article 243-U. There will be a vacuum then."

In order to provide a solution or issue, SG Tushar Mehta stated that he would take instructions regarding the same. He also added that as per three-judge bench judgement in extraordinary cases, this exercise (the exercise to determine political backwardness) could be carried out by the election commission. SG Mehta added–

"Your lordships may let direction 'D' issued by the High Court in the impugned judgement continue. In some, the terms have already expired. The elected body will not continue, those whose terms have expired cannot continue."

For context, Direction 'D' of the judgement reads as follows–

"In case, the term of Municipal Body comes to an end, till the formation of the elected Body the affairs of such Municipal Body shall be conducted by a three-member Committee headed by the District Magistrate concerned, of which the Executive Officer/Chief Executive Officer/Municipal Commissioner shall be a member. The third member shall be a District Level Officer to be nominated by the District Magistrate. However, the said Committee shall discharge only day-to-day functions of the Municipal Body concerned and shall not take any major policy decision."

Dr. Mohan Gopal, appearing for the All India Backward Classes Federation, also challenging the impugned judgement of the UP High Court, raised a concern that the existing OBC list will be interfered with.

"What is complicated is that they have to identify with a new list of OBCs which is unprecedented. The judgement actually says that you cannot use the existing list of OBCs, you have to come up with a new list of people who are not represented. If you want to do that, the commission exercise will take a very long time."

CJI Chandrachud said–

"The state's statute- Municipalities Act and the Municipal Corporation Act adopts a list of OBCs has taken under 1994 Public Services Statute in the state of Uttar Pradesh. What the high court says that that cannot be conclusive because you still have to look at other backward people as per the triple test which has been laid down in Vikas Kishanrao Gawali v. State of Maharashtra & Ors."

Here, SG Mehta clarified that the limited scope of the commission was to determine political backwardness of the already existing communities. Dr Gopal added that the apex court may clarify the same so that the exercise can proceed as within the para metres of the existing backward communities. Accordingly, before the bench passed the order, CJI Chandrachud said–

"One thing which we have to make an arrangement whether the term has expired, in terms of clause D. Then second, we of course know that you have constituted the backward class commission for verification but we will take the terms of reference on record. Three, from the terms of reference, it is evident that the backward class commission has to examine the nature and implications of backwardness at the political level."

Order Passed

CJI Chandrachud dictated the following order–

"In view of the decision of the Constitution bench in K. Krishna Murthy & Ors vs Union Of India and a three judge bench in Vikas Kishanrao Gawali v. State of Maharashtra & Ors, the government of Uttar Pradesh has issued notification constituting the UP State local bodies dedicated backward classes commission. The terms of reference through the commission are set out in the notification. Since the tenure of some of the local bodies in the state of Uttar Pradesh has already expired (as submitted by the Solicitor General) or is expected to expire around 31 January 2023, it has been submitted on behalf of the petitioners that the arrangement which is envisaged in 'Direction D' of the impugned judgement of the High Court may be embodied as an order of this court until fresh elections are held. Solicitor General submits that though the tenure of the newly appointed commission is 6 months, an effort would be made to ensure that the exercise would be completed as expeditiously as possible on or before 31 March 2023. The High Court by its impugned judgement has directed (in operative direction C) that–

"It is further directed that until the triple test/conditions as mandated by Supreme Court in K. Krishna Murthy (supra) and Vikas Kishanrao Gawali (supra) is completed in all respects by the State Government, no reservation for Backward Class of citizens shall be provided. Since the term of Municipalities has either ended or shall be coming to an end by 31.01.2023 and the process of completion of triple test/conditions being arduous, is likely to take considerable time, it is directed that the State Government/State Election Commission shall notify the elections immediately. While notifying the elections the seats and offices of Chairpersons, except those to be reserved for Scheduled Castes and Scheduled Tribes, shall be notified as for general/open category. The notification to be issued for elections shall include the reservation for women in terms of the constitutional provisions."

Pending further orders of this court operation of this direction shall remain stayed. To ensure that administrative work of local bodies is not hampered, the government will be at liberty to issue a notification for the delegation of financial powers in consonance with direction D subject to the caveat that no major policy decision shall be taken by the administrative authority. Issue notice, make it returnable in three weeks".

CASE TITLE: State of UP v. Vaibhav Pandey And Anr. SLP(C) No. 128/2023

Click Here To Read/Download Order