OBC reservation cannot exceed 50%: SC reading down s. 12(2)(c)

In our opinion, the provision in the form of Section 12(2)(c) can be saved by reading it down, to mean that reservation in favour18 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 (Para 14)

VIKAS KISHANRAO GAWALI V/S STATE OF MAHARASHTRA & ORS.

WRIT PETITION (CIVIL) NO. 980 OF 2019 WITH WRIT PETITION (CIVIL) NO. 981 OF 2019 WRIT PETITION (CIVIL) NO. 1408 OF 2019 AND WRIT PETITION (CIVIL) NO. 743 OF 2020

On 04 March 2021

The Hon’ble Supreme Court consisting of Justice A.M. Khanwilkar, Justice Indu Malhotra and Justice Ajay Rastogi held in this case that this Court ought not to exercise plenary power under Article 142 and abjure from disturbing the completed elections. However, we are not impressed with this contention because participation in the elections conducted since December 2019 to the concerned local bodies across the State of Maharashtra was on clear understanding that the results of the reserved seats for OBCs would be subject to the outcome of these writ petitions. A detailed note of the statement has been given after hearing the arguments of both the parties.

The conundrum in these matters revolves around the exposition of the Constitution Bench of this Court in K. Krishna Murthy (Dr.) & Ors. v. Union of India & Anr. ‘Relying on the dictum in the said decision, the petitioners would urge that it is no more open to the respondents to reserve more than 50 per cent (aggregate) seats in the concerned local bodies by providing reservation for Scheduled Castes/Scheduled Tribes/Other Backward Classes. The provision in the form of Section 12 of the 1961 Act enables the respondents to reserve 27 per cent of seats in the concerned Zilla Parishads and Panchayat Samitis, which is mentioned under reproduced Section 12 of the 1961 Act. The court straight away advert to the decision in K. Krishna Murthy (supra). In paragraph 9 of the decision, this Court formulated two questions for its consideration, the same read thus: “9. In light of the submissions that have been paraphrased in the subsequent paragraphs, the contentious issues in this case can be framed in the following manner:

(i) Whether Article 243­D (6) and Article 243­T (6) are constitutionally valid since they enable reservations in favors of backward classes for the purpose of occupying seats and chairperson positions in panchayats and municipalities respectively? (Para 4)

(ii) Whether Article 243­D (4) and Article 243­T (4) are constitutionally valid since they enable the reservation of chairperson positions in panchayats and municipalities respectively?” There is no doubt in our minds that excessive and disproportionate reservations provided by the State legislations can indeed be the subject ­matter of specific challenges before the courts. However, the same does not justify the striking down of Articles 243­D and 243­T which are constitutional provisions that enable reservations in favors of backward classes in the first place. As far as the challenge against the various State legislations is concerned, we were not provided with adequate materials or argumentation that could help us to make a decision about the same. The identification of backward classes for the purpose of reservations is an executive function and as per the mandate of Article 340, dedicated commissions need to be appointed to conduct a rigorous empirical inquiry into the nature and implications of backwardness. It is also incumbent upon the executive to ensure that reservation policies are reviewed from time to time so as to guard against overbreadth. In respect of the objections against the Karnataka Panchayat Raj Act, 1993, all that we can refer to is the Chinnappa Reddy Commission Report (1990) which reflects the position as it existed twenty years ago. In the absence of updated empirical data, it is wellnigh impossible for the courts to decide whether the reservations in favor of OBC groups are proportionate or not. In this respect, the State Governments are well advised to reconfigure their reservation policies, wherein the beneficiaries under Articles 243­D(6) and 243­T(6) need not necessarily be coterminous with the Socially and Educationally Backward Classes (SEBCs) [for the purpose of Article 15(4)] or even the backward classes that are underrepresented in government jobs [for the purpose of Article 16(4)]. It would be safe to say that not all of the groups which have been given reservation benefits in the domain of education and employment need reservations in the sphere of local Self-­government’. (Para 7)

The Court hastened to add a word of caution, which in, essence, is the declaration of the legal position that the upper ceiling of 50 per cent (quantitative limitation) with respect to vertical reservations in favor of SCs/STs/OBCs taken together should not be breached. With reference to the recent decision reported as

Union of India v. Rakesh Kumar [(2010) 4 SCC 50: (2010) 1 SCC (L&S) 961: (2010) 1 Scale 281], the court stated that such exceptional considerations cannot be invoked when we are examining the quantum of reservations in favor of backward classes for the purpose of local bodies located in general areas. In such circumstances, the vertical reservations in favors of SCs/STs/OBCs cannot exceed the upper limit of 50% when taken together. It is obvious that in order to adhere to this upper ceiling, some of the States may have to modify their legislations so as to reduce the quantum of the existing quotas in favor of OBCs.” (Para 6)

Through this the court noted that,

We are not in a position to examine the claims about overbreadth in the quantum of reservations provided for OBCs under the impugned State legislations since there is no contemporaneous empirical data. The onus is on the executive to conduct a rigorous investigation into the patterns of backwardness that act as barriers to political participation which are indeed quite different from the patterns of disadvantages in the matter of access to education and employment. As we have considered and decided only the constitutional validity of Articles 243­D (6) and 243­T (6), it will be open to the petitioners or any aggrieved party to challenge any State legislation enacted in pursuance of the said constitutional provisions before the High Court. (Para 6)

The argument of the respondent­ State was that the reservations in favors of OBCs must be linked to population, is very wide and tenuous. That plea if countenanced, will be in the teeth of the dictum of the Constitution Bench of this Court wherein it has been noted and rejected. The Court has expounded about the distinction in the matter of reservation in favor of SCs and STs on the one hand, which is a “constitutional” reservation linked to population unlike in the case of OBCs which is a “statutory” dispensation. The respondent­ State through learned counsel had urged that this Court ought not to entertain the present writ petitions as writ petitions were still pending before the High Court for the same relief. It is true that petitioners in two writ petitions had first approached the High Court, but still the issue under consideration needs to be answered at the instance of petitioners in other two writ petitions praying for the same reliefs. Indeed, it would have been possible for us to request the High Court to decide the issue in the first instance but as the matter essentially pertains to the width of declaration and directions given by the Constitution Bench of this Court in K. Krishna Murthy (supra) and its implementation in its letter and spirit, we deem it appropriate to answer the issue under consideration. The respondent-State suggested in its written submission that the writ petition may be set down for further hearing. The opinion was that no fruitful purpose will be served by showing that indulgence. For, the matter is capable of and is being disposed of on the basis of undisputed fact that before instructing the State Election Commission to reserve seats for OBC groups in the local bodies, no attempt was made by the State Government to set up a dedicated Commission to conduct contemporaneous rigorous empirical inquiry into the nature and implications of backwardness, and then to act upon the report of the Commission. That consolidated affidavit was filed in pursue to the directions given by this Court vide order dated 19.01.2021, and therefore the court granted the permission for the respondent to file a consolidated affidavit.

In the counter affidavit on behalf of the respondent, D.D. Shinde, Occ. Service, presently working as Deputy Commissioner (Establishment) in the office of Divisional Commissioner, Nashik, Maharashtra, submitted on solemn affirmation as under stating issues that Respondent seeks to file this Counter Affidavit in order to oppose the averments and contentions of the Special Leave Petition with liberty of this Hon’ble Court to file a further Counter Affidavit as and when necessary and with the permission of the court.

In above the court held that,

The State Election Commission had invited our attention to the fact that, provision similar to Section 12(2)(c) of the 1961 Act regarding reservation for OBCs finds place in other State enactments8 concerning the establishment of Village Panchayat, Municipal Council, Nagar Panchayat, Corporation, etc. Needless to observe that the view taken in this judgment would apply with full force to the interpretation and application of the provisions of the stated Act(s) and the State Authorities must immediately move into action to take corrective and follow up measures in right earnest including to ensure that future elections to the concerned local bodies are conducted strictly in conformity with the exposition of this Court in K. Krishna Murthy (supra), for providing reservation in favor of OBCs. (Para 24)

Concluding the court held: -

The Court does not ought to exercise plenary power under Article 142 and abjure from disturbing the completed elections. However, we are not impressed with this contention because participation in the elections conducted since December 2019 to the concerned local bodies across the State of Maharashtra was on clear understanding that the results of the reserved seats for OBCs would be subject to the outcome of these writ petitions. Accordingly, these writ petitions must partly succeed. The challenge to the validity of Section 12(2)(c) of the 1961 Act is negatived. Instead, that provision is being read down to mean that reservation in favor 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 favor 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 percent aggregate in favors of SCs/STs/OBCs taken together, as enunciated by the Constitution Bench of this Court. However, the impugned notifications/orders dated 27.7.2018 and 14.2.2020 and all other similar notifications issued by the State Election Commission 35 during the pendency of these writ petitions mentioning that the elections to the concerned local bodies were being held subject to the outcome of these writ petitions, are quashed and set aside to the extent of providing reservation of seats in the concerned local bodies for OBCs. 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 State Election Commission shall take immediate steps to announce elections in respect of such vacated seats, of the concerned local bodies, not later than two weeks from today, to be filled by general/open category candidates for the remainder term of the Panchayat/Samitis. Ordered accordingly. The writ petitions were disposed of in the above terms. (Para 27 and 28)

Eventually, all pending applications were also stand disposed.

View/ Download Judgment: VIKAS KISHANRAO GAWALI V/S STATE OF MAHARASHTRA & ORS.

Aaron Varughese.