SC Requests Patna HC to Hear Petition Seeking OBC Reservation in Bihar Municipal Body Polls by September 23


Khushi Bajpai

Published on: September 20th, 2022 at 20:08 IST

In a plea pertaining to the OBC reservation in the upcoming municipal body polls in Bihar, the Supreme Court on Monday allowed the parties to mention the matter before the Patna high court, where it is pending adjudication, for an early listening.

“Since the high court is seized of the matter… it is our concern view that the HC takes the petition on an early date… we permit the petitioners to mention the… petition before the bench presided over by the Ld. Chief justice of the Patna high court. Ld.”

A bench comprising Justices D.Y. Chandrachud and Hima Kohli also requested the chief justice to take up the petition at the earliest, precisely, in the course of the present week.

“Ld. Chief Justice is requested to take up the petition on an earlier date given the urgency and having due regard to the fact that a counter is being filed and no rejoinder is necessitated.”

The high court, by the impugned order dated 02.09.2022, had directed the state and other respondents to file their response in a week’s time and the petitioner to file a rejoinder within one week thereafter. Accordingly, the petition will be put up for a hearing on 29th September, 2022.

However, in the meantime, the state of Bihar has notified on 09.09.2022 that the municipal election will be held on 10.10.2022. senior advocate, Mr. Ranjit Kumar, appearing for the state of Bihar, informed the bench that he would file the counter affidavit before the high court during the Couse of the day and the senior advocate, Ms. Meenakshi Arora, appearing on behalf of the petitioner, stated that given the urgency of the matter, she would not file a rejoinder and proceed with arguments.

Later on, a letter was sent by the Urban Development and Housing Department, Government of Bihar to the State Election Commission (SEC) stating that as per the advice of the law department, there is no problem to begin with the election programme for the municipal bodies in the state. The SEC was requested to proceed further.

The petitioner hereby challenges the communication dated 01.04.2022, before the Patna High Court, seeking directions to the State Government and other concerned authorities to implement the directions issued by the Apex Court in Vikas Kishanrao Gawali v. State of Maharashtra & Ors., (2021) wherein the Apex Court noted that a triple test is to be followed before provisioning reservation for the OBC category. 

The three tests are as follows:

(1) to establish a dedicated commission to oversee contemporaneous, rigorous empirical inquiry into the nature and implications of the State’s backwardness as local bodies;

(2) defining the proportion of reservations that must be provisioned locally based on Commission recommendations in order to avoid overbreadth; and (3) specifying the proportion of reservations that must be provisioned locally based on Commission recommendations.

(3) not more than half of the total seats reserved for SCs/STs/OBCs taken together.

Further, the petition states that it is necessary that the directions given by the apex court regarding the OBC reservation in local body elections should be complied with by all states and UTs. It also pleads to direct the state government to implement directions passed by the courts in similar petitions for local body polls in Maharashtra and Madhya Pradesh.

Ms.AV submits before the Court that the OBC reservation needs to be incorporated as per the report of the Dedicated Commission. In order to determine patterns of backwardness, a mandate for a dedicated commission acting as a defence from political participation is required.However, she pointed out that there is no such dedicated authority in existence.

She also emphasised that the Constitution Bench had clarified that the identification of “backward classes” under Article 243-D(6) and Article 243-T(6) of the Constitution of India, 1950 is distinct from the identification of SEBCs for the purpose of Article 15(4) and that of backward classes for the purpose of Article 16(4). However, as per her submissions, the state government is applying reservation in service for reserving seats in the local body elections.

In the light of the same, the apex court asked the high court to hear the matter.

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