The Supreme Court Thursday said reservation in favour of Other Backward Classes in concerned local bodies in Maharashtra cannot exceed an aggregate of 50 per cent of the total seats reserved for Scheduled Castes, the Scheduled Tribes and OBCs taken together.
The apex court, while reading down section 12(2)(c) of the Maharashtra Zilla Parishads and Panchayat Samitis Act 1961 which provided 27 per cent reservation for persons belonging to the backward class, also quashed the notifications issued by the state election commission in 2018 and 2020 to the extent of providing reservation of seats in concerned local bodies for OBCs.
It said election results of OBC (other backward classes) candidates, which had been made subject to the outcome of pleas pending before it, are declared as "non-est in law" and the vacancy of seats be forthwith filled up by the state election commission for the remaining term of the concerned local bodies.
"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," a bench headed by Justice A M Khanwilkar said.
"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," said the bench, also comprising Justices Indu Malhotra and Ajay Rastogi.
The apex court clarified that consequently, all acts are done and decisions taken by the concerned local bodies due to the 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," it said.
The top court delivered its verdict on pleas seeking a declaration that section 12(2)(c) of 1961 Act is ultra vires the provisions of the Constitution.
The petitions had also sought quashing of July 27, 2018, and February 14 last year notifications issued by the state election commission of Maharashtra providing for reservation exceeding 50 per cent in 'zilla parishads' and 'panchayat samitis' of some districts including Washim, Akola and Nagpur.
In its 36-page verdict, the apex court held that section 12(2)(c) of the 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" as specified by the constitution bench of the top court earlier, before notifying the seats as reserved for OBC category in concerned local bodies.
It referred to the triple condition noted in the constitution bench verdict of 2010 -- to set up a dedicated commission to conduct a contemporaneous rigorous empirical inquiry into the nature and implications of the backwardness of local bodies within the state, 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 in any case such reservation shall not exceed the aggregate of 50 per cent of the total seats reserved in favour of SCs/STs/OBCs taken together.
"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 have not been done so far," it said.
It said participation in the elections conducted since December 2019 to the concerned local bodies across the state of Maharashtra was on the clear understanding that the results of the reserved seats for OBCs would be subject to the outcome of the writ petitions pending in the apex court.
It said the state election commission shall take immediate steps to announce elections in respect of vacated seats of the concerned local bodies, not later than two weeks from today, to be filled by general/open category candidates for the remaining term of the panchayat or samitis.
Referring to the constitution bench verdict, the bench said, "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 the population." It said, "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." It said after the verdict of the constitution bench, it was imperative for the state to set up a dedicated commission to conduct a 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," it said.