The challenge to the validity of Section 12(2)(c) of the 1961 Act is negatived. Instead, that provision is being read down to mean that reservation in favour of OBCs in the concerned local bodies can be notified to the extent that it does not exceed aggregate 50 per cent of the total seats reserved in favour of SCs/STs/OBCs taken together. In other words, the expression “shall be” preceding 27 per cent occurring in Section 12(2)(c), be construed as “may be” including to mean that reservation for OBCs may be up to 27 per cent but subject to the outer limit of 50 per cent aggregate in favour of SCs/STs/OBCs taken together, as enunciated by the Constitution Bench of this Court. However, the impugned notifications/orders dated 27.7.2018 and 14.2.2020 and all other similar notifications issued by the State Election Commission during the pendency of these writ petitions mentioning that the elections to the concerned local bodies were being held subject to the outcome of these writ petitions, are quashed and set aside to the extent of providing reservation of seats in the concerned local bodies for OBCs. As a consequence, follow up steps taken on the basis of such notifications including the declaration of results of the candidates against the reserved OBC seats in the concerned local bodies, are declared non est in law; and the seats are deemed to have been vacated forthwith prospectively by the concerned candidate(s) in terms of this judgment. The State Election Commission shall take immediate steps to announce elections in respect of such vacated seats, of the concerned local bodies, not later than two weeks from today, to be filled by general/open category candidates for the remainder term of the Panchayat/Samitis. Ordered accordingly.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 980 OF 2019
VIKAS KISHANRAO GAWALI …PETITIONER
VERSUS
STATE OF MAHARASHTRA & ORS. …RESPONDENTS
WITH
WRIT PETITION (CIVIL) NO. 981 OF 2019
WRIT PETITION (CIVIL) NO. 1408 OF 2019
AND
WRIT PETITION (CIVIL) NO. 743 OF 2020
J U D G M E N T
A.M. KHANWILKAR, J.
1. These writ petitions under Article 32 of the Constitution of
India seek a declaration that Section 12(2)(c) of the Maharashtra
Zilla Parishads and Panchayat Samitis Act, 19611
, is ultra vires the
1 for short, “the 1961 Act”
2
provisions of Articles 243D and 243T including Articles 14 and
16 of the Constitution of India. In addition, the validity of the
notifications dated 27.7.2018 and 14.2.2020 issued by the State
Election Commission, Maharashtra providing for reservation
exceeding 50 per cent in respect of Zilla Parishads and Panchayat
Samitis of districts Washim, Akola, Nagpur and Bhandara have
been questioned and it is prayed that the same be quashed and set
aside. A district wise chart has been presented to illustrate the
excess reserved percentage and seats (more than aggregate 50 per
cent of total seats), in some of the districts, which reads thus:
“District: Washim
Particulars Total
Seats
General Reserved Exceed 50 per cent
SC ST OBC Percentage Seats
Zilla Parishad 52 23 11 04 14 5.76 % 3
Gram
Panchayat
490 219 100 39 132 5.30 % 26
District: Bhandara
Particulars Total
Seats
General Reserved Exceed 50 per cent
SC ST OBC Percentage Seats
Zilla Parishad 52 25 09 04 14 1.92 % 1
Gram
Panchayat
541 261 91 43 146 1.75 % 9
District: Akola
Particulars Total
Seats
General Reserved Exceed 50 per cent
SC ST OBC Percentage Seats
Zilla Parishad 53 22 12 05 14 8.49 % 4
3
Panchayat
Samiti
106 44 25 09 28 8.49 % 9
Gram
Panchayat
539 226 125 42 146 8.07 % 43
District: Nagpur
Particulars Total
Seats
General Reserved Exceed 50 per cent
SC ST OBC Percentage Seats
Zilla Parishad 58 25 10 07 16 6.89 % 4
Panchayat
Samiti
116 51 19 15 31 6.03 % 7
Gram
Panchayat
772 330 137 97 208 7.25 % 56
District: Gondiya
Particulars Total
Seats
General Reserved Exceed 50 per cent
SC ST OBC Percentage Seats
Zilla Parishad 53 23 06 10 14 6.60 % 3
Panchayat
Samiti
106 45 12 19 30 7.54 % 8
Gram
Panchayat
544 232 66 99 147 7.35 % 40”
(emphasis supplied)
2. The conundrum in these matters revolves around the
exposition of the Constitution Bench of this Court in K. Krishna
Murthy (Dr.) & Ors. v. Union of India & Anr.2
. Relying on the
dictum in the said decision, the petitioners would urge that it is no
more open to the respondents to reserve more than 50 per cent
(aggregate) seats in the concerned local bodies by providing
reservation for Scheduled Castes3/Scheduled Tribes4/Other
2 (2010) 7 SCC 202
3 for short, “the SCs”
4 for short, “the STs”
4
Backward Classes5
. Whereas, the respondentState would urge
that the stated decision recognises that it is permissible to reserve
seats for OBCs to the extent permissible in the 1961 Act. Further,
in exceptional situation, the reservation for SCs/STs/OBCs in the
concerned local bodies (Zilla Parishads and Panchayat Samitis)
could exceed even 50 per cent of the total seats. This is the central
issue to be dealt with in the present writ petitions.
3. The provision in the form of Section 12 of the 1961 Act
enables the respondents to reserve 27 per cent of seats in the
concerned Zilla Parishads and Panchayat Samitis. Section 12 of
the 1961 Act is reproduced hereunder:
“12. Division of District into electoral division.—(1) The
State Election Commission shall, for the purposes of
election of Councillors divide every District; into
electoral divisions (the territorial extent of any such
division not being outside the limits of the same
Block), each returning one Councillor, and there shall
be a separate election for each electoral division:
Provided that, such electoral division shall be
divided in such a manner that the ratio between the
population of each electoral division and the total
number of Councillors to be elected for the Zilla
Parishad shall, so far as practicable, be the same
throughout the Zilla Parishad area:
Provided further that, while distributing such
electoral divisions among the Panchayat Samitis, not
less than two electoral divisions shall be allotted to
each Panchayat Samiti.
5 for short, “the OBCs”
5
(2)(a) In the seats to be filled in by election in a
Zilla Parishad there shall be seats reserved for persons
belonging to the Scheduled Castes, Scheduled Tribes,
Backward Class of citizens and women, as may be
determined by the State Election Commission in the
prescribed manner:
(b) the seats to be reserved for the persons
belonging to the Scheduled Castes and the Scheduled
Tribes in a Zilla Parishad shall bear, as nearly as may
be, the same proportion to the total number of seats to
be filled in by direct election in that Zilla Parishad as
the population of the Scheduled Castes or, as the case
may be, the Scheduled Tribes in that Zilla Parsishad
area bears to the total population of that area and
such seats shall be allotted by rotation to different
electoral divisions in a Zilla Parishad:
Provided that, in a Zilla Parishad comprising
entirely the Scheduled Areas, the seats to be reserved
for the Scheduled Tribes shall not be less than onehalf of the total number of seats in the Zilla Parishad:
Provided further that, the reservation for the
Scheduled Tribes in a Zilla Parishad falling only
partially in the Scheduled Areas shall be in accordance
with the provisions of clause (b):
Provided also that onehalf of the total number
of seats so reserved shall be reserved for women
belonging to the Scheduled Castes or, as the case may
be, the Scheduled Tribes:
(c) the seats to be reserved for persons
belonging to the category of Backward Class of
Citizens shall be 27 per cent. of the total number
of seats to be filled in by election in a Zilla
Parishad and such seats shall be allotted by
rotation to different electoral divisions in a Zilla
Parishad :
Provided that, in a Zilla Parishad comprising
entirely the Scheduled Areas, the seats to be
reserved for the persons belonging to the Backward
Class of Citizens shall be 27 per cent. of the seats
remaining (if any), after reservation of the seats for
the Scheduled Tribes and the Scheduled Castes :
6
Provided further that, the reservation for the
persons belonging to the Backward Class of
Citizens in a Zilla Parishad falling only partially in
the Scheduled Areas shall be in accordance with
the provisions of clause (c) :
Provided also that onehalf of the total
number of seats so reserved shall be reserved for
women belonging to the category of Backward
Class of Citizens:
(d) onehalf (including the number of seats
reserved for women belonging to the Scheduled
Castes, Scheduled Tribes and the category of
Backward Class of Citizens) of the total number of
seats to be filled in by direct election in a Zilla
Parishad shall be reserved for women and such seats
shall be allotted by rotation to different electoral
divisions in a Zilla Parishad.
(3) The reservation of seats (other than the
reservation for women) under subsection (2) shall
cease to have effect on the expiration of the period
specified in Article 334 of the Constitution of India.”
(emphasis supplied)
4. We may straight away advert to the decision in K. Krishna
Murthy (supra). In paragraph 9 of the decision, this Court
formulated two questions for its consideration, the same read thus:
“9. In light of the submissions that have been
paraphrased in the subsequent paragraphs, the
contentious issues in this case can be framed in the
following manner:
(i) Whether Article 243D(6) and Article 243T(6)
are constitutionally valid since they enable
reservations in favour of backward classes for
the purpose of occupying seats and chairperson
positions in panchayats and municipalities
respectively?
7
(ii) Whether Article 243D(4) and Article 243T(4)
are constitutionally valid since they enable the
reservation of chairperson positions in panchayats
and municipalities respectively?”
(emphasis supplied)
5. As regards the discussion on the question of validity of
reservation in favour of backward classes, the Court proceeded to
examine the same in paragraphs 58 to 67 of the reported decision.
The essence of the view expressed by the Constitution Bench on
the said question is that Articles 243D(6) and 243T(6) of the
Constitution of India are merely enabling provisions and it would
be improper to strike them down as violative of the equality clause.
At the same time, the Court noted that these provisions did not
provide guidance on how to identify the backward classes and
neither do they specify any principle for the quantum of such
reservations. Instead, discretion has been conferred on the State
legislatures to design and confer reservation benefits in favour of
backward classes. While dealing with the provisions pertaining to
reservations in favour of backward classes concerning the States of
Karnataka and Uttar Pradesh wherein the quantum of reservation
was 33 per cent and 27 per cent respectively, the Court noted that
objections can be raised even with regard to similar provisions of
8
some other State legislations. The real concern was about
overbreadth in the State legislations and while dealing with that
aspect in paragraphs 60 to 63, the Court noted thus:
“60. There is no doubt in our minds that excessive and
disproportionate reservations provided by the State
legislations can indeed be the subjectmatter of
specific challenges before the courts. However, the
same does not justify the striking down of Articles
243D(6) and 243T(6) which are constitutional
provisions that enable reservations in favour of
backward classes in the first place. As far as the
challenge against the various State legislations is
concerned, we were not provided with adequate
materials or argumentation that could help us to
make a decision about the same. The identification
of backward classes for the purpose of reservations
is an executive function and as per the mandate of
Article 340, dedicated commissions need to be
appointed to conduct a rigorous empirical inquiry
into the nature and implications of backwardness.
61. It is also incumbent upon the executive to
ensure that reservation policies are reviewed from
time to time so as to guard against overbreadth. In
respect of the objections against the Karnataka
Panchayat Raj Act, 1993, all that we can refer to is the
Chinnappa Reddy Commission Report (1990) which
reflects the position as it existed twenty years ago. In
the absence of updated empirical data, it is wellnigh impossible for the courts to decide whether
the reservations in favour of OBC groups are
proportionate or not.
62. Similarly, in the case of the State of Uttar Pradesh,
the claims about the extent of the OBC population are
based on the 1991 census. Reluctant as we are to
leave these questions open, it goes without saying that
the petitioners are at liberty to raise specific challenges
against the State legislations if they can point out
9
flaws in the identification of backward classes with the
help of updated empirical data.
63. As noted earlier, social and economic
backwardness does not necessarily coincide with
political backwardness. In this respect, the State
Governments are well advised to reconfigure their
reservation policies, wherein the beneficiaries
under Articles 243D(6) and 243T(6) need not
necessarily be coterminous with the Socially and
Educationally Backward Classes (SEBCs) [for the
purpose of Article 15(4)] or even the backward
classes that are underrepresented in government
jobs [for the purpose of Article 16(4)]. It would be
safe to say that not all of the groups which have been
given reservation benefits in the domain of education
and employment need reservations in the sphere of
local selfgovernment. This is because the barriers to
political participation are not of the same
character as barriers that limit access to education
and employment. This calls for some fresh
thinking and policymaking with regard to
reservations in local selfgovernment.”
(emphasis supplied)
6. Again, in paragraph 64, the Court noted about the absence of
explicit constitutional guidance as to the quantum of reservation in
favour of backward classes in local selfgovernment. For that, the
thumb rule is that of proportionate reservation. The Court
hastened to add a word of caution, which in, essence, is the
declaration of the legal position that the upper ceiling of 50 per
cent (quantitative limitation) with respect to vertical reservations in
favour of SCs/STs/OBCs taken together should not be breached.
10
This has been made amply clear and restated even in paragraph 67
of the reported decision, which reads thus:
“67. In the recent decision reported as Union of
India v. Rakesh Kumar [(2010) 4 SCC 50 : (2010) 1
SCC (L&S) 961 : (2010) 1 Scale 281] this Court has
explained why it may be necessary to provide
reservations in favour of the Scheduled Tribes that
exceed 50% of the seats in panchayats located in the
Scheduled Areas. However, such exceptional
considerations cannot be invoked when we are
examining the quantum of reservations in favour of
backward classes for the purpose of local bodies
located in general areas. In such circumstances,
the vertical reservations in favour of
SCs/STs/OBCs cannot exceed the upper limit of
50% when taken together. It is obvious that in
order to adhere to this upper ceiling, some of the
States may have to modify their legislations so as
to reduce the quantum of the existing quotas in
favour of OBCs.”
(emphasis supplied)
On that analysis, the Court in conclusion noted as follows:
“Conclusion
82. In view of the above, our conclusions are:
(i) The nature and purpose of reservations in the
context of local selfgovernment is considerably
different from that of higher education and public
employment. In this sense, Article 243D and Article
243T form a distinct and independent constitutional
basis for affirmative action and the principles that
have been evolved in relation to the reservation
policies enabled by Articles 15(4) and 16(4) cannot be
readily applied in the context of local selfgovernment.
Even when made, they need not be for a period
corresponding to the period of reservation for the
purposes of Articles 15(4) and 16(4), but can be much
shorter.
11
(ii) Article 243D(6) and Article 243T(6) are
constitutionally valid since they are in the nature of
provisions which merely enable the State Legislatures
to reserve seats and chairperson posts in favour of
backward classes. Concerns about disproportionate
reservations should be raised by way of specific
challenges against the State legislations.
(iii) We are not in a position to examine the
claims about overbreadth in the quantum of
reservations provided for OBCs under the
impugned State legislations since there is no
contemporaneous empirical data. The onus is on
the executive to conduct a rigorous investigation
into the patterns of backwardness that act as
barriers to political participation which are indeed
quite different from the patterns of disadvantages
in the matter of access to education and
employment. As we have considered and decided only
the constitutional validity of Articles 243D(6) and
243T(6), it will be open to the petitioners or any
aggrieved party to challenge any State legislation
enacted in pursuance of the said constitutional
provisions before the High Court. We are of the view
that the identification of “backward classes” under
Article 243D(6) and Article 243T(6) should be
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).
(iv) The upper ceiling of 50% vertical
reservations in favour of SCs/STs/OBCs should not
be breached in the context of local selfgovernment. Exceptions can only be made in order
to safeguard the interests of the Scheduled Tribes
in the matter of their representation in panchayats
located in the Scheduled Areas.
(v) The reservation of chairperson posts in the
manner contemplated by Articles 243D(4) and 243
T(4) is constitutionally valid. These chairperson posts
12
cannot be equated with solitary posts in the context of
public employment.”
(emphasis supplied)
7. On a fair reading of the exposition in the reported decision,
what follows is that the reservation for OBCs is only a “statutory”
dispensation to be provided by the State legislations unlike the
“constitutional” reservation regarding SCs/STs which is linked to
the proportion of population. As regards the State legislations
providing for reservation of seats in respect of OBCs, it must
ensure that in no case the aggregate vertical reservation in respect
of SCs/STs/OBCs taken together should exceed 50 per cent of the
seats in the concerned local bodies. In case, constitutional
reservation provided for SCs and STs were to consume the entire
50 per cent of seats in the concerned local bodies and in some
cases in scheduled area even beyond 50 per cent, in respect of
such local bodies, the question of providing further reservation to
OBCs would not arise at all. To put it differently, the quantum of
reservation for OBCs ought to be local body specific and be so
provisioned to ensure that it does not exceed the quantitative
limitation of 50 per cent (aggregate) of vertical reservation of seats
for SCs/STs/OBCs taken together.
13
8. Besides this inviolable quantitative limitation, the State
Authorities are obliged to fulfil other preconditions before
reserving seats for OBCs in the local bodies. The foremost
requirement is to collate adequate materials or documents that
could help in identification of backward classes for the purpose of
reservation by conducting a contemporaneous rigorous empirical
inquiry into the nature and implications of backwardness in the
concerned local bodies through an independent dedicated
Commission established for that purpose. Thus, the State
legislations cannot simply provide uniform and rigid quantum of
reservation of seats for OBCs in the local bodies across the State
that too without a proper enquiry into the nature and implications
of backwardness by an independent Commission about the
imperativeness of such reservation. Further, it cannot be a static
arrangement. It must be reviewed from time to time so as not to
violate the principle of overbreadth of such reservation (which in
itself is a relative concept and is dynamic). Besides, it must be
confined only to the extent it is proportionate and within the
quantitative limitation as is predicated by the Constitution Bench
of this Court.
14
9. Notably, the Constitution Bench adverted to the fact that
provisions of most of the State legislations may require a relook,
but left the question regarding validity thereof open with liberty to
raise specific challenges thereto by pointing out flaws in the
identification of the backward classes in reference to the empirical
data. Further, the Constitution Bench expressed a sanguine hope
that the concerned States ought to take a fresh look at policy
making with regard to reservations in local selfgovernment in light
of the said decision, whilst ensuring that such a policy adheres to
the upper ceiling including by modifying their legislations — so as
to reduce the quantum of the existing quotas in favour of OBCs
and make it realistic and measurable on objective parameters.
10. Despite this declaration of law and general observations cum
directions issued to all the States on the subject matter, the
legislature of the State of Maharashtra did not take a relook at the
existing provisions which fell foul of the law declared by the
Constitution Bench of this Court. As a matter of fact, couple of
writ petitions6
came to be filed in the Bombay High Court in which
solemn assurance was given on behalf of the State of Maharashtra
6 W.P. (Civil) No.6676 of 2016 and W.P. (Civil) No.5333 of 2018
15
that necessary corrective measures in light of the decision of this
Court, will be taken in right earnest. The situation, however,
remained unchanged.
11. As a matter of fact, no material is forthcoming as to on what
basis the quantum of reservation for OBCs was fixed at 27 per
cent, when it was inserted by way of amendment in 1994. Indeed,
when the amendment was effected in 1994, there was no guideline
in existence regarding the modality of fixing the limits of reserved
seats for OBCs as noted in the decision of the Constitution Bench
in K. Krishna Murthy (supra). After that decision, however, it was
imperative for the State to set up a dedicated Commission to
conduct contemporaneous rigorous empirical inquiry into the
nature and implications of backwardness and on the basis of
recommendations of that Commission take follow up steps
including to amend the existing statutory dispensation, such as to
amend Section 12(2)(c) of the 1961 Act. There is nothing on record
that such a dedicated Commission had been set up until now. On
the other hand, the stand taken by the State Government on
affidavit, before this Court, would reveal that requisite information
for undertaking such empirical inquiry has not been made
16
available to it by the Union of India. In light of that stand of the
State Government, it is unfathomable as to how the respondents
can justify the notifications issued by the State Election
Commission to reserve seats for OBCs in the concerned local
bodies in respect of which elections have been held in the year
December 2019/January 2020, which notifications have been
challenged by way of present writ petitions. This Court had
allowed the elections to proceed subject to the outcome of the
present writ petitions.
12. Be that as it may, it is indisputable that the triple
test/conditions required to be complied by the State before
reserving seats in the local bodies for OBCs has not been done so
far. To wit, (1) to set up a dedicated Commission to conduct
contemporaneous rigorous empirical inquiry into the nature and
implications of the backwardness qua local bodies, within the
State; (2) to specify 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) in any
case such reservation shall not exceed aggregate of 50 per cent of
the total seats reserved in favour of SCs/STs/OBCs taken together.
17
In a given local body, the space for providing such reservation in
favour of OBCs may be available at the time of issuing election
programme (notifications). However, that could be notified only
upon fulfilling the aforementioned preconditions. Admittedly, the
first step of establishing dedicated Commission to undertake
rigorous empirical inquiry itself remains a mirage. To put it
differently, it will not be open to respondents to justify the
reservation for OBCs without fulfilling the triple test, referred to
above.
13. As regards Section 12(2)(c) of the 1961 Act inserted in 1994,
the plain language does give an impression that uniform and rigid
quantum of 27 per cent of the total seats across the State need to
be set apart by way of reservation in favour of OBCs. In light of the
dictum of the Constitution Bench, such a rigid provision cannot be
sustained much less having uniform application to all the local
bodies within the State. Instead, contemporaneous empirical
inquiry must be undertaken to identify the quantum qua local body
or local body specific.
14. In our opinion, the provision in the form of Section 12(2)(c)
can be saved by reading it down, to mean that reservation in favour
18
of OBCs in the concerned local bodies may be notified to the
extent, that it does not exceed 50 per cent of the total seats
reserved in favour of SCs/STs/OBCs taken together. In other
words, the expression “shall be” preceding 27 per cent occurring in
Section 12(2)(c), be construed as “may be” including to mean that
reservation for OBCs may be up to 27 per cent but subject to the
outer limit of 50 per cent aggregate in favour of SCs/STs/OBCs
taken together, as enunciated by the Constitution Bench of this
Court. On such interpretation, Section 12(2)(c) can be saved and
at the same time, the law declared by the Constitution Bench of
this Court can be effectuated in its letter and spirit.
15. The argument of the respondentState that the reservations in
favour of OBCs must be linked to population, is very wide and
tenuous. That plea if countenanced, will be in the teeth of the
dictum of the Constitution Bench of this Court wherein it has been
noted and rejected. The Court has expounded about the
distinction in the matter of reservation in favour of SCs and STs on
the one hand, which is a “constitutional” reservation linked to
population unlike in the case of OBCs which is a “statutory”
dispensation. Therefore, the latter reservation for OBCs must be
19
proportionate in the context of nature and implications of
backwardness and in any case, is permissible only to the extent it
does not exceed the aggregate of 50 per cent of the total seats in
the local bodies reserved for SCs/STs/OBCs taken together.
16. Indeed, this Court had allowed the State Election Commission
to conduct elections on the basis of old dispensation in terms of
orders dated 28.08.2019, 07.11.2019 and 13.12.2019, by
recording prima facie view as noted in the order dated 18.12.2019.
However, it was made amply clear that the elections in respect of
five districts (Nagpur, Washim, Akola, Dhule and Nandurbar) were
allowed to proceed subject to the outcome of present writ petition(s)
questioning the validity of Section 12(2)(c) of the 1961 Act. Thus
understood, the respondents cannot take benefit of the prima facie
observations to repel the challenge to the old dispensation being
continued despite the decision of the Constitution Bench of this
Court and more particularly, to the notifications reserving seats for
OBC candidates exceeding the quantitative limitation of aggregate
50 per cent of total seats in the local bodies concerned.
17. In light of the finding recorded hitherto (that no inquiry much
less contemporaneous rigorous empirical inquiry into the nature
20
and implications of backwardness by a dedicate Commission
established by the State for the purpose has been undertaken), it is
not open to the State to fall back on Section 12(2)(c) as enacted in
1994. That provision, as aforementioned, is an enabling provision
and would become functional and operational only upon fulfilling
triple test as specified by the Constitution Bench of this Court.
That is the sine qua non or the quintessence for exercise of power
to reserve seats for OBCs in the local bodies. Indeed, the exercise
of power to reserve seats for OBCs springs from Section 12(2)(c) of
the 1961 Act, but that is hedged by conditions and limitations
specified by the Constitution Bench of this Court and would not get
ignited until such time.
18. Thus understood, the impugned notifications issued by the
State Election Commission reserving seats for OBCs in the
concerned local bodies, suffer from the vice of foundational
jurisdictional error. The impugned notification(s) to the extent it
provides for reservation for OBCs in the concerned local bodies, is,
therefore, void and without authority of law.
19. A priori, the elections conducted by the State Election
Commission on the basis of such notifications concerning reserved
21
OBC seats alone are vitiated and must be regarded as non est in
the eyes of law from its inception in the wake of declaration of law
in that regard by the Constitution Bench of this Court. The fact
that it will impact large number of seats throughout the five
districts or elsewhere where such elections are conducted in
2019/2020, would make no difference. For, such reservation was
not permissible in law unless the essential steps, as propounded
by the Constitution Bench of this Court, had been taken before
issuing the election notifications, that too only to the extent of
quantitative limitation. This position would apply in full measure,
to all elections conducted in respect of reserved OBC seats by the
State Election Commission duly notifying that the same will be
subject to the outcome of these writ petitions. The State Election
Commission must proceed to take follow up steps and notify
elections for seats vacated in terms of this decision for being filled
up by open/general category candidates for the remainder tenure
of the concerned Gram Panchayats and Samitis. We are inclined to
take this view as it is not possible to identify which of the reserved
seat for OBCs in the concerned local body would fall foul of the law
22
declared by the Constitution Bench of this Court, amongst the total
seats reserved for OBCs.
20. The respondentState through learned counsel had urged that
this Court ought not to entertain the present writ petitions as writ
petitions7
were still pending before the High Court for the same
relief. We are not impressed by this hyper technical objection. It is
true that petitioners in two writ petitions had first approached the
High Court, but still the issue under consideration needs to be
answered at the instance of petitioners in other two writ petitions
praying for the same reliefs. Indeed, it would have been possible
for us to request the High Court to decide the issue in the first
instance but as the matter essentially pertains to the width of
declaration and directions given by the Constitution Bench of this
Court in K. Krishna Murthy (supra) and its implementation in its
letter and spirit, we deem it appropriate to answer the issue under
consideration.
21. It has been faintly suggested by the respondentState in its
written submission that the writ petition may be set down for
further hearing. However, we fail to fathom why such a plea has
7 W.P. (Civil) No. 2756 of 2019; W.P. (Civil) No. 2893 of 2019 and W.P. (Civil) No.
9159 of 2020
23
been put forth especially when the State has already filed a
consolidated affidavit in this Court, apart from the comprehensive
written submissions filed after closure of oral arguments. In our
opinion, no fruitful purpose will be served by showing that
indulgence. For, the matter is capable of and is being disposed of
on the basis of undisputed fact that before instructing the State
Election Commission to reserve seats for OBC groups in the local
bodies, no attempt was made by the State Government to set up a
dedicated Commission to conduct contemporaneous rigorous
empirical inquiry into the nature and implications of
backwardness, and then to act upon the report of the Commission.
That fact is reinforced from the consolidated affidavit filed by the
respondentState in SLP (Civil) No. 33904 of 2017, which was the
lead matter until it was disposed of on 17.02.2021, after analogous
hearing with the present writ petitions. That consolidated affidavit
was filed pursuant to the directions given by this Court vide order
dated 19.01.2021, which
reads thus:
24
“Heard learned counsel for the parties. We direct
the RespondentState to file a consolidated affidavit
dealing with the issues raised in each of these
proceedings including in the form of interlocutory
application(s) to be served on learned counsel
appearing for the concerned petitioners/applicants
within three weeks from today.
We clarify that the consolidated affidavit will
be a common affidavit used in the concerned
petitioners and application(s) as the case may be.
List on 11.02.2021.”
(emphasis supplied)
Accordingly, the consolidated affidavit dated 04.02.2021 came to
be filed by the State duly sworn by the Deputy Commissioner
(Establishment), which reads thus:
“COUNTER AFFIDAVIT ON BEHALF OF
RESPONDENT
I, D.D. Shinde age 55 years, Occ. Service, presently
working as Deputy Commissioner (Establishment) in
the office of Divisional Commissioner, Nashik,
Maharashtra, do hereby submit on solemn affirmation
as under that:
1. I am the authorized officer of the respondent in
the present Special Leave Petition. I am also
authorized to file Counter Affidavit on behalf of
Respondent as such I am well conversant with the
facts and circumstances of the case and hence I am
competent and authorized to swear this Counter
Affidavit on behalf of the Respondent.
2. I have gone through the contents of the present
Special Leave Petition in reply thereto the answering
Respondent seeks to file this Counter Affidavit in order
to oppose the averments and contentions of the
Special Leave Petition with liberty of this Hon’ble Court
25
to file a further Counter Affidavit as and when
necessary and with the permission of this Hon’ble
Court.
3. The State Government has filed affidavits dated
05.11.2019 and 13.03.2020, and I repeat and
reiterate the contents of the same as if the same have
been set out herein, in extenso. I say that I am filing
this Affidavit in compliance of the directions of the
Hon’ble Court in its order dated 19.01.2021, passed in
the above Special Leave Petition.
4. I say that the elections were held to the Zilla
Parishads of five districts in Maharashtra, namely
Nagpur, Washim, Akola, Dhule and Nandurbar in
December 2019/January 2020, pursuant to the orders
passed by this Hon’ble Court. In all the aforesaid
districts, the reservation exceeded 50%. It is the
contention of the Petitioners that in all the aforesaid
districts the reservation could not have exceeded 50%
as it was the upper limit as set out in the judgments of
Indra Sawhney vs. Union of India reported in (1992) 3
SCC 217 and the judgment of K. Krushnamurthy vs.
Union of India reported in (2010) 7 SCC 202. The only
issue that essentially remains for consideration of this
Hon’ble Court, in all these matters is whether the
reservation in all the aforesaid five districts could have
exceeded 50%.
5. I repeat and reiterate that the elections held in
December 2019/January 2020 have been held on the
basis of the old dispensation, but for future elections,
the State Government will have to provide category
wise breakup of population and in particular regarding
Backward Class Category (BCC), as the information
can be provided only by the Central Government. It is
therefore submitted that, I.A. No.188324/2019 be
allowed and the Registrar General of India, Ministry of
Home Affairs, Government of India and the Secretary,
Ministry of Social Justice and Welfare be added as
party respondents in the aforesaid Special Leave
Petitions. It is further submitted that, I.A.
No.188318/2019 be allowed and the Registrar General
of India, Ministry of Home Affairs, Government of India
26
and the Secretary, Ministry of Social Justice and
Welfare be directed to make available the data of
SocioEconomic Census 2011, to the extent only
relating to the caste of the citizens of Rural
Maharashtra, to enable the Government of
Maharashtra to calculate population belonging to
castes that make a part of Backward Classes of
Citizens (BCC) in Maharashtra.
6. I repeat and reiterate with regard to the decision
of the Constitution Bench of this Hon’ble Court in K.
Krishnamurthy (supra), and in particular paragraph
no.83(iv) thereof, it is submitted with respect that, a
reading of paragraphs no.59, 64, 66 and 67 thereof,
create a doubt as to whether 50% vertical reservations
referred to in paragraph no.82(iv) can be regarded as
unalterable. A breakup of the figures in respect of the
five districts (mentioned in the order dated
18.12.2019) show that if the direction given in
paragraph no.82(iv) are to be strictly complied with, it
may not be possible to give effect thereto, at least in
respect of Dhule and Nandurbar districts which have
high tribal population.
7. I submit that in the case of K. Krushna Murthy
(Supra) the Hon’ble Constitution Bench of this Hon’ble
Court lays down that the nature and purpose of
reservations in the context of local selfgovernment is
considerably different from that of higher education
and public employment. It further lays down that
Article 243D and Article 243T form a distinct and
independent constitutional basis for affirmative action
and the principle that have been evolved in relation to
the reservation policies enabled by Articles 15(4) and
16(4) of the Constitution, cannot be readily applied in
the context of local selfgovernment.
8. I submit that in the absence of explicit
constitutional guidance as to the quantum of
reservation in favour of backward classes in local selfgovernment, the rule of thumb is that of ‘proportionate
reservation’. Admittedly, reservations in excess of 50%
do exist in some exceptional cases, when it comes to
the domain of political representation, which is the
27
outcome of exceptional considerations in relation to
these areas. Similarly, vertical reservations in excess
of 50% are permissible in the composition of local selfgovernment institutions located in the Fifth Schedule
Areas. I submit that in the judgment of Union of India
v. Rakesh Kumar reported in (2010) 4 SCC 50, this
Hon’ble Court has explained why it may be necessary
to provide reservations in favour of the Scheduled
Tribes that exceed 50% of the seats in local selfgovernments located in the Scheduled Area.
9. With regard to the elections held in December
2019/January 2020, in Nandurbar district, 44 out of
56 seats were reserved for Scheduled Tribes (ST)
category which was in keeping with the population
ratio. This itself consumed 50% upper limit provided
by the Constitution Bench of this Hon’ble Court,
leaving 1 reservation for Scheduled Caste (SC)
Category. In respect of elections held in December
2019/January 2020, in Dhule district, 23 out of 56
seats were reserved for Scheduled Tribes (ST) category
which was in keeping with the population ratio. This
itself consumed 50% upper limit provided by the
Constitution Bench of this Hon’ble Court, leaving 3
reservation for Scheduled Caste (SC) Category. In
Dhule District the talukas of Saktri and Shirpur are
partly ‘Scheduled Areas’. In Nandurbar District, the
talukas of Navapur, Taloda, Akkalkuwa and Akrani are
fully ‘Scheduled Areas’ and the blocks of Nandurbar
and Shahda are partly ‘Scheduled Areas’. I say that
both Dhule and Nandurbar Districts, being partly
‘Scheduled Areas’ would fall within the exceptions laid
down in the case of Indra Sawhney (Supra). Further,
the decision of Indra Sawhney (Supra) was given in
respect of reservation measures enabled by Article
16(4) of the Constitution. The principles of reservation
which are applicable for public employment and for
admission to educational institutions cannot be
readily applied in respect of a reservation policy made
to protect the interests of the Scheduled Tribes by
assuring them of majority of reservation in Scheduled
Areas. Further, the case of Indra Sawhney (Supra)
reveals that though an upper limit of 50% was
28
prescribed for reservations in public employment, the
said decision recognizes the need of exceptional
treatment in some circumstances. The case of Indra
Sawhney (supra) prescribes an upper limit of 50% (in
paragraph 806 of the judgment) because Article 16(4)
deals with ‘adequate representation’ and not
‘proportionate representation’. Hence, the elections
held in December 2019/January 2020 ought not to set
aside for the districts of Dhule and Nandurbar
districts.
10. In any event, as set out in detail in the
Affidavit dated 13.3.2020, I say that the State
Government is unable to provide category wise
breakup of population and in particular regarding
Backward Class Category (BCC), as that
information can be provided only by the Central
Government and the same is not forthcoming. It is
important that the data of SocioEconomic to the
extent only of field relating to the caste of the
citizens of Rural Maharashtra, be provided to the
State Government by the Central Government, so
as to enable the State Government to calculate
population belonging to castes that make a part of
Backward Caste of Citizens (BCC) in Maharashtra.
With regard to the elections held in December
2019/January 2020, in Nagpur, Washim, and Akola
districts, the reservations exceeded 50% of the seats,
only by 6% to 8% and ought not to be set aside by this
Hon’ble Court.
11. I repeat and reiterate that it is important that
the data of SocioEconomic to the extent only of field
relating to the caste of the citizens of Rural
Maharashtra, be provided to the State Government by
the Central Government, so as to enable the State
Government to calculate population belonging to
castes that make a part of Backward Caste of Citizens
(BCC) in Maharashtra.
12. Considering the facts and circumstances of the
case in hand, the special leave petition deserves to be
dismissed.
29
13. That no new additional facts or documents,
which are not part of the record are stated or annexed
in the counter affidavit.
Hence this Counter Affidavit.
(Deponent)
Drawn by: Sd/
Rahul Chitnis, Advocate. (D.D. Shinde)”
(emphasis supplied)
22. As matter of fact, this affidavit plainly concedes that in case of
some local bodies, the reservation has far exceeded 50 per cent
with nominal seats for general category. At this stage, it may be
relevant to mention that the consolidated affidavit refers to the
previous affidavit(s) dated 5.11.2019 and 13.03.2020 which,
however, do not contain any other statement, or any additional
information, requiring scrutiny in the context of the issues
answered in this decision. The consolidated affidavit also refers to
three interlocutory applications filed in the disposed of SLP (Civil)
Nos. 3390433910 of 2017. IA No.188324 of 2019 was filed for
direction to allow impleadment of Registrar General of India,
Ministry of Home Affairs, Government of India and Secretary,
Ministry of Social Justice and Welfare as party respondents in the
SLP. That was because the State had sought directions against
30
that party to furnish census data on the basis of which analysis
could be done by the State for providing reservation to OBCs in the
local bodies, in the elections due in 2019/2020. That relief was
claimed by the State in IA No.188318 of 2019. Since the said
elections are completed, the State is free to pursue with the Union
of India for getting requisite information which can be then made
available to the dedicated Commission to be established by it for
conducting a contemporaneous rigorous empirical inquiry into the
nature and implications of backwardness of the concerned groups.
As regards IA No.108915 of 2019 referred to in the consolidated
affidavit, the relief claimed was to defer the impending elections in
the concerned Zilla Parishads and Panchayat Samitis. Those
elections having been completed in 2019/2020, obviously the relief
as claimed is worked out. We, therefore, fail to understand as to
why the State Government wants further hearing of the matter on
such flimsy and specious grounds. To observe sobriety, we say no
more.
31
23. We, however, appreciate the stand taken by the State Election
Commission which is in conformity with the exposition of the
Constitution Bench of this Court; and that it had issued impugned
notifications by making it amply clear to all concerned that the
elections were being conducted as directed by this Court and would
be subject to the outcome of the present writ petitions. The
elections were held only after this Court directed the State Election
Commission to ensure that the elections in the concerned Zilla
Parishads and Panchayat Samitis of as many as five districts (out
of 36 districts) of the State, were not being conducted even after
more than two years from the expiry of term of the outgoing
councillors/members of the concerned local bodies.
24. The State Election Commission had invited our attention to
the fact that, provision similar to Section 12(2)(c) of the 1961 Act
regarding reservation for OBCs finds place in other State
enactments8
concerning the establishment of Village Panchayat,
Municipal Council, Nagar Panchayat, Corporation, etc. Needless to
8 (1) The Maharashtra Village Panchayats Act, 1959 – Section 10(2)(c)
(2) Maharashtra Municipal Councils, Nagar Panchayats and Industrial
Townships Act, 1965 – Sections 9(2)(d) and 341(B)(4)
(3) The Maharashtra Municipal Corporations Act, 1949 – Section 5A(1)(c)
32
observe that the view taken in this judgment would apply with full
force to the interpretation and application of the provisions of the
stated Act(s) and the State Authorities must immediately move into
action to take corrective and follow up measures in right earnest
including to ensure that future elections to the concerned local
bodies are conducted strictly in conformity with the exposition of
this Court in K. Krishna Murthy (supra), for providing reservation
in favour of OBCs.
25. In conclusion, we hold that Section 12(2)(c) of the 1961 Act is
an enabling provision and needs to be read down to mean that it
may be invoked only upon complying with the triple conditions
(mentioned in paragraph 12 above) as specified by the Constitution
Bench of this Court, before notifying the seats as reserved for OBC
category in the concerned local bodies. Further, we quash and set
aside the impugned notifications to the extent they provide for
reservation of seats for OBCs being void and non est in law
including the follow up actions taken on that basis. In other
words, election results of OBC candidates which had been made
subject to the outcome of these writ petitions including so notified
in the concerned election programme issued by the State Election
33
Commission, are declared as non est in law and the vacancy of
seat(s) caused on account of this declaration be forthwith filled up
by the State Election Commission with general/open candidate(s)
for the remainder term of the concerned local bodies, by issuing
notification in that regard.
26. As a consequence of this declaration and direction, all acts
done and decisions taken by the concerned local bodies due to
participation of members (OBC candidates) who have vacated seats
in terms of this decision, shall not be affected in any manner. For,
they be deemed to have vacated their seat upon pronouncement of
this judgment, prospectively. This direction is being issued in
exercise of plenary power under Article 142 of the Constitution of
India to do complete justice.
27. It was urged that this Court ought not to exercise plenary
power under Article 142 and abjure from disturbing the completed
elections. However, we are not impressed with this contention
because participation in the elections conducted since December
2019 to the concerned local bodies across the State of Maharashtra
was on clear understanding that the results of the reserved seats
for OBCs would be subject to the outcome of these writ petitions.
34
That was clearly notified by the State Election Commission in the
election programme published by it at the relevant time, in
consonance with the directions given by this Court vide interim
orders. Therefore, the reliefs as claimed and being granted in
terms of this judgment, are in consonance with liberty given by this
Court.
28. Accordingly, these writ petitions must partly succeed. The
challenge to the validity of Section 12(2)(c) of the 1961 Act is
negatived. Instead, that provision is being read down to mean that
reservation in favour of OBCs in the concerned local bodies can be
notified to the extent that it does not exceed aggregate 50 per cent
of the total seats reserved in favour of SCs/STs/OBCs taken
together. In other words, the expression “shall be” preceding 27
per cent occurring in Section 12(2)(c), be construed as “may be”
including to mean that reservation for OBCs may be up to 27 per
cent but subject to the outer limit of 50 per cent aggregate in
favour of SCs/STs/OBCs taken together, as enunciated by the
Constitution Bench of this Court. However, the impugned
notifications/orders dated 27.7.2018 and 14.2.2020 and all other
similar notifications issued by the State Election Commission
35
during the pendency of these writ petitions mentioning that the
elections to the concerned local bodies were being held subject to
the outcome of these writ petitions, are quashed and set aside to
the extent of providing reservation of seats in the concerned local
bodies for OBCs. As a consequence, follow up steps taken on the
basis of such notifications including the declaration of results of
the candidates against the reserved OBC seats in the concerned
local bodies, are declared non est in law; and the seats are deemed
to have been vacated forthwith prospectively by the concerned
candidate(s) in terms of this judgment. The State Election
Commission shall take immediate steps to announce elections in
respect of such vacated seats, of the concerned local bodies, not
later than two weeks from today, to be filled by general/open
category candidates for the remainder term of the
Panchayat/Samitis. Ordered accordingly.
The writ petitions are disposed of in the above terms. No
order as to costs.
36
All pending applications also stand disposed of.
……………………………J.
(A.M. Khanwilkar)
……………………………J.
(Indu Malhotra)
……………………………J.
(Ajay Rastogi)
New Delhi;
March 04, 2021.
