OBC, EBC quota in Bihar urban local body elections illegal: Patna high court

Late on Tuesday evening, the state election commission in a circular informed all district magistrates that both phases of the elections, scheduled on October 10 and October 20, stand deferred.

Patna: Reservation of seats for other backward classes (OBCs) and extremely backward classes (EBCs) in Bihar’s urban local body elections without following the triple test criteria as laid down by the Supreme Court was “illegal”, the Patna high court observed on Tuesday.

A division bench of chief justice Sanjay Karol and justice Sanjay Kumar directed the state election commission to hold the elections ‘only by immediately re-notifying the seats reserved for OBCs, treating them as general categories seats’. (File)

A division bench headed by chief justice Sanjay Karol directed the state election commission (SEC) to hold the elections “only by immediately re-notifying the seats reserved for OBCs, treating them as general categories seats”.

The order comes less than a week before the first phase of the two-phased elections was scheduled on October 10. “Our direction, similar in nature, is based on the dictum of the Supreme Court,” said the bench also comprising Justice Sanjay Kumar.

The bench further said the schedule pertaining to the two-phase elections vide notification/circulars stands modified to the aforesaid extent. “The Election Commission shall review its functioning as an autonomous and independent body, not bound by the dictates of the government of Bihar,” remarked the bench.

Bihar advocate general Lalit Kishor said he was not in a “position to comment on the order at present”.

Late on Tuesday evening, the state election commission in a circular informed all the district magistrates that both phases of the elections, scheduled on October 10 and October 20, stand deferred.

“New dates of polls will be notified in due course,” said the circular issued by SEC secretary Mukesh Kumar Sinha.

Terms of most of the 224 urban local bodies in the state had expired in June and they were being run by administrators since. The SEC notified the elections on September 10.

Chief secretary Amir Subhani said the state government was examining the order and administrative department will take a suitable action accordingly. On the possible deferment of polls, especially the first phase, Subhani said: “The SEC has to take a call. We cannot comment on it.”

Bihar state election commissioner Deepak Prasad and SEC secretary Mukesh Kumar Sinha did not respond to multiple phone calls for a comment.

SEC officials have gone into a huddle and taking opinion on various possible options available, an SEC official said, requesting anonymity. “A decision on the polls would be taken soon.”

In March last year, the Supreme Court while hearing a case pertaining to Maharashtra local body polls had held that for implementing OBC reservation in local bodies, the state must constitute a dedicated OBC commission, collect data on their backwardness, and provide reservation in such a manner that the total reservation — with SC, ST and OBC put together — does not exceed the 50% ceiling. The direction was coined as the “triple test”.

The detailed order of the high court came on a batch of civil writ petitions, which challenged the SEC’s move to conduct urban local body polls with reserved seats without fulfilling the “triple test” critieria. In Bihar, there is 20% reservation for EBCs besides those for scheduled castes and scheduled tribes in wards of urban local bodies.

Bihar may consider enacting a comprehensive legislation pertaining to reservations in elections to local bodies, urban or rural, to bring the state assembly in line with the directions issued by the apex court, said the high court. “A copy of this judgment be communicated to the chief secretary, government of Bihar, and the state election commissioner for taking all consequential action,” it added.

The likely deferment of the polls triggered a political spat between the ruling Janata Dal (United) and opposition Bharatiya Janata Party (BJP), with each blaming the other of “betraying” the extremely backward classes of Bihar.

Terming the high court order “disappointing”, JD(U) parliamentary board chairman Upendra Kushwaha attacked the previous BJP-led NDA government for not carrying a survey for identifying the backwardness of the EBCs.

“Had the survey been done on time, this situation would not have arisen. Now, the EBCs would be deprived of reservations in seats of urban bodies,” claimed the senior JD(U) leader. “This is part of the larger game-plan of the BJP-led NDA to end reservations for OBCs, SCs and STs.”

Chief minister Nitish Kumar’s JD(U) severed ties with the BJP in August, bringing to an abrupt end to the NDA government. He then joined hands the Rashtriya Janata Dal, Congress and four other parties to form the Grand Alliance government.

Senior BJP leader and former deputy CM Sushil Kumar Modi hit back at Kushwaha, saying the caste census had nothing to do with the urban polls. He added that the court had clearly outlined that reservation of seats should be done by the recommendations of a dedicated commission set up for identifying the backwardness of reserved seats.

“Chief minister Nitish Kumar was adamant on his stand for holding polls by ignoring the suggestions of the advocate general and SEC,” the Rajya Sabha member alleged.

BJP state chief Sanjay Jaiswal said: “The BJP has worked hard for giving reservations to EBCs in urban bodies and other places.”