OBC quota: Maharashtra govt to resend ordinance to governor Koshyari for approval

The decision was taken in response to the query raised by the governor Bhagat Singh Koshyari, who refused to clear the ordinance saying that the state government should inform the Apex court in advance, as the reservation of the OBC community was scrapped by it
The Maharashtra Vikas Aghadi (MVA) government led by chief minister Uddhav Thackeray has decided to resend its ordinance, for providing reservations to the OBC in the rural local bodies’ elections, to governor Bhagat Singh Koshyari.
The Maharashtra Vikas Aghadi (MVA) government led by chief minister Uddhav Thackeray has decided to resend its ordinance, for providing reservations to the OBC in the rural local bodies’ elections, to governor Bhagat Singh Koshyari.
Updated on Sep 22, 2021 10:18 PM IST
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By Faisal Malik, Mumbai

The Maharashtra Vikas Aghadi (MVA) government led by chief minister Uddhav Thackeray has decided to resend its ordinance, for providing reservations to the Other Backward Classes (OBC) in the rural local bodies’ elections, to Governor Bhagat Singh Koshyari. The state cabinet on Wednesday decided that there is no need to take prior permission from the Supreme Court (SC) for promulgating the ordinance as OBC reservation will not exceed 27% and the total reservation quota in any of the districts will not breach the 50% cap determined by the Apex court.

The decision was taken in response to the query raised by the Governor, who refused to clear the ordinance saying that the state government should inform the Apex court in advance, as the reservation of the OBC community was scrapped by it.

The state government has also decided to provide up to 27% reservation to the OBC community in the urban local bodies (ULBs) such as municipal corporations, municipal councils and nagar panchayats. The state urban development department will promulgate another ordinance to this effect. With the ordinance, it will make amendments in three legislations — Mumbai Municipal Corporation Act, Maharashtra Municipal Corporations Act and Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act.

The hearing on a petition filed by the state government for OBC reservation is also scheduled for September 23 (Thursday). The state government has filed a writ petition in the Apex Court seeking Socio-Economic Caste Census, 2011 data from the Centre for providing reservation to the OBC community.

The state government has recently sent the ordinance to provide reservation to the Other Backward Classes (OBC) in the rural local bodies elections to the governor seeking his approval. The ordinance can be promulgated only after the governor’s approval.

“The OBC reservation in local bodies was scrapped following the SC verdict. As an interim provision, the state government has decided to provide up to 27% reservation to the OBC community and the total reservation quota (combined quota of Scheduled Caste (SC), Scheduled Tribe (ST) and OBC will also not violate the 50% quota set by the Supreme Court. The ordinance will be issued following the SC judgement thus there is no need to take its permission once again,” stated a release issued by the chief minister office (CMO).

“We have decided to resend the ordinance back to the Governor (Bhagat Singh Koshyari) with a decision that the state will inform the Supreme Court once it is issued. The Governor is of the view that the SC should be informed before issuing the ordinance as it is an Apex court’s decision. I am confused about the stand taken by him as he would have directed us to inform SC soon after the ordinance is promulgated,” said Hasan Mushrif, rural development minister.

“Instead of supporting the move taken by the state government, he (Bhagat Singh Koshyari) is creating fresh issues. As an alternative to the problem of OBC reservation, the state cabinet decided to bring an ordinance. It will help in providing reservation to the community in the local bodies’ elections except for four-five districts, which is far better than depriving the entire community of reservation benefits in the local bodies polls,” he commented.

Last week, the state government decided to promulgate an ordinance to make amendments in the legislation to provide reservation to the OBC community in rural local bodies without breaching the 50% reservation cap mandated by the SC.

The decision was taken after the state election commission declared bypolls in six district councils (zilla parishads) on October 5.

An ordinance is a temporary law approved by the governor (on the advice of the state government) when the state legislature is not in session. An ordinance becomes a permanent Act (the law of the land) on being approved by state legislature within six weeks, if not then it is bound to lapse.

On March 4, the SC ruled that the reservation in favour of the OBC in local bodies should not result in exceeding the 50% cap in reservation quota mandated by it. It has directed the state government to appoint a dedicated commission for collecting empirical data, based on which, the reservation quota of the community be fixed and also allowed the state election commission to hold local bodies polls without having reservations for OBCs.

This could prove politically damaging for the Uddhav Thackeray-led MVA government and hence it was decided to take the ordinance route to save the OBC reservation.

“If the governor did not sign the ordinance, then it will send a wrong signal in the OBC community. If the governor did not approve the ordinance, then the state government will be left with no other option but to wait for the empirical data to be collected, which will take some time,” the rural development minister said.

According to the cabinet decision, the Scheduled Caste and Scheduled Tribe communities will continue to get the reservation quota based on their population but the OBC community will get the remaining percent within the 50% ceiling. With the ordinance, the state rural development department will make amendments in two legislations — Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 and Maharashtra Village Panchayat Act for zilla parishads, panchayat samiti and gram panchayats.

After the amendments, the Scheduled Caste (SC) and Scheduled Tribe (ST) communities will continue to get the reservation quota based on their population in the local bodies but the OBC community will get the remaining per cent within the 50% ceiling and that too not more than 27%.

The state government believes that they will be able to secure around 90% seats of the OBC community with the ordinance.

Leader of Opposition Devendra Fadnavis defended the governor and claimed he returned the ordinance in the interest of the state and OBC community. “The law and judiciary department opined that the matter is pending before the SC and before its permission ordinance should not be promulgated. The opinion can be set aside by seeking the views of the advocate general (AG) else it can be stayed immediately in the court of law. But the state government decided to overlook the law and judiciary department’s opinion and sent the file to the governor for final approval. The governor pointed out the opinion of the law and judiciary department and sought clarification,” Fadnavis told reporters.

Ulhas Bapat, a constitutional expert said that the provisions of the ordinance cannot be implemented in the bypolls declared by the state election commission and even the court cannot interfere during the election process. “In my view, the state election commission will not accept it as they have already announced bypolls. It has all the rights and the state government can’t interfere. Even the court cannot interfere in the election process once it is declared. After the bypolls, its validity can be challenged in the court of law,” Bapat said.

“Due process such as empirical data, approval of the state backward classes commission etc. is expected to be followed before providing reservation to a community. In its absence, the ordinance can easily be challenged in the court of law and hence I don’t see its future,” Bapat opined when asked if the amendment can be implemented for the local bodies’ election due early next year.

More than 15 municipal corporations (including Mumbai, Navi Mumbai and Thane), 29 of 36 district councils and over 90 municipal councils will go for polls over the next one year. The election bandwagon to these local bodies in such a huge number is considered as the ‘mini assembly polls’.

Koshyari and the MVA government have been locked in a bitter tussle for quite some time. The governor is yet to clear the 12 names approved by the state cabinet in November last year to be appointed as the members of the legislative council. Every six years, 12 members are nominated to the Upper House of the state legislature by the governor on the recommendation of the state government.

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Monday, October 25, 2021