Supreme Court to hear pleas challenging the ordinance promulgated by Maharashtra Government that provide for blanket 27% reservation to the category of backward classes in the local body elections
Sr Adv Vikas Singh for petitioner refers to Krishna Murthy's judgement and Vikas Gawli's judgement.
They have brought the ordinance by inserting SHALL be without following the triple test.
Singh: Why was this done is because of the Constitution Bench judgement. When Art 243 was set up in challenge, the CB had said that it is merely an enabling provision.
Bench: Mr Singh going back to our judgement of Maharashtra they can do so, provided there is a commission
Singh: Yes but based on the data. Please see the conclusion of the CB.
Bench: now the ordinance has been issued without doing all this?
Singh: yes SHALL be has been introduced
Singh again refers to the Constitution Bench judgement.
Singh: Please see the ordinance that has been challenged.
Bench: What is that notice related to the commission? Has the Commission given a data?
Singh: Only centre will give them raw data with % OBC but they will not have the data related to backwardness of political participation.
I'll give you an example of Yadav's in Bihar.
Singh: What they do is, in the ordinance, they again insert shall be but the only thing that they do is subject to 50% which was not there earlier.
Singh: 3 things were said:
1. Empirical Backwardness
2. comparison and 3. 50%
Reservation will have to go.
Singh: If election goes through, it will have snowballing effect.
Elections have been notified to 2100 seats.
Bench to Adv Kadethankar: Have you notified the elections?
Adv Kadethankar: I have notified to all the elections that the same would be subject to the order passed by the court. I am in the missed of election. I notified on November 24.
Bench: The matter was already here before us. Could you not take our permission?
Adv Kadethankar: We were not aware of the same sir.
Sr Adv Shekhar Naphade for State Of Maharashtra: Please see section 4 of the Ordinance.
Naphade: 27% we have taken care of. The Commission has been formulated. The union contends that data is RAW. I have filed a counter affidavit.
Bench: What is the last date of filing nomination?
Adv Kanthekar: Tomorrow.
Bench: We are staying the elections of the reserved category. We don't want to complicate the same.
Naphade: Please see the Art 243 E, there is no provision for appointment of administrator.
Bench: We are going to stay the election with regards to that 27% reservation.
Bench: There were steps that were to be followed. Constituting Commission, Collect Data and municipal wise provide reservation.
Bench: your political compulsions cannot be the basis to undo the judgement.
Bench: We are staying it Mr and we're going to hear it on Dec 13. You suffer the consequences. if you would have constituted the Commission, you should have waited for the data to be submitted.
ORDER
We have heard counsel for the parties. WP assail the provisions inserted/amended vide Maha Ordinance 3 of 2021 permitting reservation for category of OBC upto 27% uniformity throughout the state.
That issue had received court's attention in Vikas Krishan Gawali v. State of Maharashtra wherein this court noted the triple test to be followed before providing such reservation for OBC category.
In Para 13, 3 steps have been noted thus. This was in fact reiteration of the exposition of the CB on the issue of quantum of reservation provided by OBC.
In conclusion of K Krishnamurthy v UOI 2010 7 SCC 202 the Court observed thus:
To overcome the decision of this court, impugned ordinance has been issued by the State Govt & in compliance SEC has notified the same which includes reservation of OBC mentioned in impugned ordinance.
Argument of State of Maha is that the ordinance is in conformity of Court's decisions & is only providing for reservation of OBC to 27%.
We are not impressed by this. Without setting up of commission to collect data local govt wise, it is not open to the SEC to provide for reservation of OBC category.
That is the 1st step which ought to have been done. As matter of fact by notifcation dated June 29, 2021. However without waiting for its report and opinion the SEC proceeded by issuing the State's ordinance.
SEC cannot be permitted to proceed with the election prog already notified in respect of RESERVED SEATS FOR CATEGORY OBC only in concerned local bodies.
Concerned local bodies in respect of revered seats for category OBC shall remain stayed until further orders.
Rest of election prog can proceed for other reserved seats including general.
SEC shall not notify the reserved seats for mid term or other general elections as the case be till further orders.
