Priyanka Singh
Published on: October 6, 2022 at 20:57 IST
On Tuesday, the Patna High Court held that the seats reserved for Other Backward Classes (OBC) and the Extremely Backward Classes in the Municipal Body Polls as illegal.
The Court relied onto the judgment of Supreme Court in case of Vikas Kishanrao Gawali vs. State of Maharashtra & Ors. and held that the provision for the quotas in question had failed two out of three tests set by the judgment for the determination of a group’s political backwardness.
The State Election Commission (SEC) was directed further by the bench of Chief Justice Sanjay Karol and Justice Sanjay Kumar for the re-notification of seats reserved for the OBCs in the local polls as general category seats.
Pursuant to the Court’s order, the SEC has issued a notification postponing the first and second phases of the local polls scheduled for October 10 and 20, resp.
In its order, the High Court also expressed displeasure against the State Election Commission by directing it to review its functioning as an autonomous and an independent body, questioning the authenticity of its decisions.
The order comes days after the SC requested the Chief Justice of High Court to take up the plea with regards to the OBC reservation of seats in the upcoming municipal body elections.
The SC had particularly requested the Patna HC to test the case on the basis of the Vikas Gawali judgment where the question of compliance stands with the elections in various Municipalities in Bihar.
The Vikas Kishanrao Gawali Guidelines –
The Case included a triple test followed before the provisioning of reservation for the OBC category. The triple test involves –
(1) Setting up a dedicated Commission to conduct a contemporaneous rigorous empirical inquiry into the nature and implications of the backwardness qua local bodies, within the State;
(2) Specifying the proportion of reservation required to be provisioned local body-wise in light of recommendations of the Commission, so as not to fall foul of overbreadth; and
(3) Not exceeding an aggregate of 50 percent of the total seats reserved in favour of SCs/STs/OBCs taken together.
The Vikas Kishanrao Gawali Case –
The Government of Bihar, on 1st April, 2022, sent a letter to the SEC highlighting that in accordance with the advice of the Law Department, that there is no hurdle in initiating the election program for the municipal bodies in the State.
Though, the SEC reminded the Government the need to make suitable mechanisms, administrative as well as legislative, to comply with Supreme Court directions, the Government did not comply with the measures.
The petitioners challenged the communication of April before the High Court of Patna seeking issuance by the State Government of directions that were directed by the Apex Court in the Vikas Gawali Case.
Hearing the plea, the High Court noted that the Government failed to comply with the first test out of the three folds as the Government did not entrust any work to a dedicated Commission, undertaking the task of conducting an inquiry into the nature and implication of political backwardness of the OBC/EBC for reservation purposes.
In the Second test, the Court observed that the Government had directed the SEC to carry out the reservation of seats, without collection of empirical data on political backwardness.
The reservation exercise was purely directed on the basis of population, particularly for the EBC category which cannot be the sole basis for providing reservations.
With this, the second test was also failed by the Government.
With regards to the third test, the Court did not find any material on record implying the reservations being in excess of the combined upper limit of 50% for all categories/persons/classes.
The High Court observed that the SEC informed the State Government through various mediums to comply with the Supreme Court’s laid down directions, including the ones in the Vikas Kishanrao Gawali Case.
Nevertheless, the SEC initiated the election process of reserving seats for the OBC category.
The Court noted that the SEC did not revise its opinion and did not seek any legal opinion prior to initiating with the Government’s direction, nor did it strive for any legal remedy.
The Court concluded that the State of Bihar did not undertake any exercise with regards to criteria set for the reservations under socio-economic/educational/services have been adopted for the purposes of ensuring electoral representation to OBCs and EBCs.
Thus, it was held that –
- The action of the Government as also the Election Commission in reserving the seats for the OBC/EBC category for election to all the municipal bodies in the State of Bihar, governed under the Bihar Municipal Act, 2007 (Act No. 11 of 2007), sans compliance of the dictum laid down by the Supreme Court in Sunil Kumar vs. The State of Bihar & Ors; K. Krishna Murthy & Ors. vs. Union of India & Ors; Vikas Kishanrao Gawali; Suresh Mahajan vs. State of M.P.; Rahul Ramesh Wagh vs. The State of Maharashtra; Manmohan Nagar vs. The State of Maharashtra, Manmohan Nagar vs. The State of Madhya Pradesh, to be illegal.
- The Secretary, State Election Commission, to carry out the elections only by immediately re-notifying the seats reserved for the OBC Category treating them as general category seats.
- The State of Bihar may consider enacting a comprehensive legislation pertaining to reservations in elections to local bodies, urban or rural, to bring the State seamlessly in line with the directions issued by the Apex Court in the above-mentioned cases.