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SC upsets Maharashtra’s OBC plan, says notify 2,486 local body polls in 2 weeks
The Supreme Court said elections to 2,486 local bodies in Maharashtra were long overdue and asked if it was not a case of breakdown of rule of law and abdication of constitutional duty
NEW DELHI: The Supreme Court on Wednesday said the Maharashtra government’s decision to delay the election to over 2,400 local bodies pending delimitation exercise amounted to “abdication of constitutional duty” and “breakdown of rule of law in the state” and set a deadline of two weeks for the state election commission (SEC) to notify elections and report compliance to the court in July.
“In five years, there is a constitutional duty to hold elections to local bodies. We find that in 2,486 local bodies, elections are long overdue and there are no elected representatives. Is it not a case of breakdown of rule of law and abdication of constitutional duty?” asked a bench of justices AM Khanwilkar, AS Oka and CT Ravikumar.
The direction came during Tuesday’s hearing on a petition by two individuals, Ramesh Sheknath Kere Patil and Vijay SP Patil and the special economic backward class (SEBC) forum of Maharashtra. They challenged amendments to a bunch of laws governing rural and urban local bodies in March that took away the SEC’s powers to complete the delimitation and formation of wards and give the state government time to collect empirical data needed to restore the OBC quota in local body polls.
Lawyer K Parameshwar, who appeared for the petitioners, said the amendments were an attempt to defeat the top court’s verdict in March last year that allowed the state to reserve seats for other backward classes (OBC) seats in local bodies only if the state fulfils the triple test laid down by the top court in Vikas Kishanrao Gawali case. Later, in December 2021 and January this year, the court directed the state election commission to re-notify the OBC seats as general category seats and hold elections.
The triple test, first laid down by the Supreme Court in 2010, required the state government to set up a dedicated commission to gather data on the backwardness of OBCs in every local body, specify the proportion of reservation in each local body in the light of commission’s recommendations, and lastly, ensure that such reservation does not exceed 50% of the total seats reserved in favour of SC/ST/OBC taken together.
The petition said the amendments effectively enabled the state government to defer the elections on the pretext of carrying out the delimitation exercise and the appointment of administrators over each of the local bodies where the election was overdue.
The Supreme Court disapproved the state’s response. “The number of 2,000-odd local bodies being unrepresented is staggering. Delimitation cannot hold back elections,” the bench said. At the same time, the court held that the delimitation process was a continuous exercise which may be continued by Maharashtra but the outcome will only be relevant for future elections.
The SEC, which had informed the court about seats where elections are due, was given two weeks to issue the notification setting the election process in motion. “The delimitation as it existed prior to March 11, 2022 (when the state made amendments to the law) in respect of concerned local bodies be taken as notional delimitation for the conduct of overdue elections.”
The court, which posted the next hearing on July 12, told SEC to file a compliance report. The bench reiterated that the elections will be held without OBC reservation unless the state fulfils the triple test.
Senior advocate Shekhar Naphade who represented the Maharashtra government tried to convince the court that the amendments were only carried out to ensure there is a correct representation of the reserved population in each municipal ward or constituency. He tried explaining the delay in the civic elections to the Covid-19 pandemic.
The bench shot back. “How many elections to legislative assemblies were conducted during Covid time… It is a mindset which is being reflected in the present situation.”
The senior lawyer tried to seek time to complete the delimitation exercise but the judges effectively delinked the conduct of elections to the delimitation exercise.
“Delimitation is a continuous exercise and it goes on but elections must happen in every five years. Delimitation cannot be linked with elections which are overdue for over two years.”
The court further clarified that the constitutional provision is clear that a constituency cannot go unrepresented beyond six months. “Even the administrator cannot continue beyond this period,” the bench observed.
Organisations supporting OBC reservation also argued in support of the state contending that delimitation exercise must precede the conduct of elections under Article 243S of the Constitution which deals with constitution of wards. Senior advocate P Wilson appearing in support of the OBC reservation said that the elections cannot be held at this stage as even SEC agrees that delimitation of wards is not over.
The state told the court that under Article 243S, data is required for constituting municipal wards. The bench questioned the state for this late realization and said, “If that was so, you should have come to us and not pursued the legal route by enacting the amendments.”
The petitioners argued that the state annulled the delimitation process started by the SEC and began the process afresh. “This is nothing but a colourable exercise of power to defer the elections since elections cannot be· conducted till the time the respondent (state) finishes the delimitation process and prepares the municipal roll thereafter,” stated the petition.
To be sure, the Maharashtra government did make several attempts to secure reservation benefits to OBC without following the triple test but these were blocked.
In September 2021, the state promulgated an ordinance introducing 27% reservation for OBC in defiance of the triple test criteria. But the ordinance was stayed by the Supreme Court in early December.
In December 2021, the state amended the terms of reference of the backward classes commission constituted by it and sought an interim report in three months. In February this year, the state moved an application in the top court to be allowed to reserve OBC seats based on the commission’s interim report. This was rejected by the top court on March 3 directing that no OBC reservation will be provided in local bodies and directed the SEC to ensure elections to these seats are held after notifying them as general seats. Soon after, on March 7, the state amended the law for carrying out the delimitation of seats and delaying elections to the local bodies.
