Though a 3-judge bench of the Supreme Court, consisting of Justices A.M.Khanwilkar, Indu Malhotra and Ajay Rastogi, has, in the judgment of the case- Vikas Kisanrao Gawali v. State of Maharashtra & Others, delivered on March 4, 2021, negatived the challenge of the petitioners to the validity of section 12(2)(c) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961, instead, the Court has read down this provision 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 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 the Court in its judgment of the case –K. Krishna Murthy (Dr) & Others v. Union of India & Another- (2010) 7 SCC 202.
However, the Supreme Court, has quashed and set aside impugned notifications /orders of July 27, 2018 and February 14, 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, with rider that quashing of these notifications is to the extent of providing reservation of seats in the concerned local bodies for OBCs
These four civil writ petitions in this case were filed under Article 32 of the Constitution of India seeking a declaration that section 12(2) (c) of the 1961 Act is constitutionally invalid , as it violates the provisions of Articles @43-D and 243-T including Articles 14 and 16 of the Constitution.. In addition, the validity of the two notifications of July 22, 2018 and February 14, 2020 issued by the Election Commission, Maharashtra providing for reservation exceeding 50 pc in respect of Zilla Parishads and Panchayat Samitis of districts Washim, Akola, Nagpur, and Bhandara were questioned and it was prayed that same be quashed and set aside.
The legal issue raised through these petitions revolves around the exposition of the Constitution Bench of the Supreme Court in the case K Krishna Murthy(Dr) & Others The provision in the section 12 of the 1961 Act enables the respondents to reserve 27 per cent of seats in the concerned Zilla Parishads and Panchayat Samitis.
In paragraph 9 of the SC’s decision in the K.Krishna Murthy case , the Court formulated two questions for its consideration, 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 243-D(6) and Article 243-T(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?
“(ii) Whether Article 243-D(4)and Article 243-T(4) are constitutionally valid since they enable the reservation of chairperson positions in panchayats and municipalities respectively?'
Regarding 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 said decision. The essence of the view of the Constitution bench on the said question is that these two Articles in the Constitution 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 in regard to similar provisions.
The SC has admitted that it had allowed the State Election Commission to conduct elections on the basis of old dispensation in terms of orders of August28, November 7 and December 13, 2019, by recording prima facie view as noted in the order of December 18, 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 these writ petitions, 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 of 50 pc of total seats in the local bodies concerned.
In light of the finding recorded hitherto (that no inquiry much less contemporaneous rigorous empirical inquiry into the nature and implications of backwardness by a dedicate(d?) Commission appointed 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 already mentioned , 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 section12 (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.
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 SC has directed the State Election Commission to take immediate steps to announce elections in respect of such vacated seats, of the concerned local bodies, not later than two weeks from the date of this judgment, to be filled by general/open category candidates for the remainder term of these local bodies. The SC has disposed of these petitions in the above terms.