The Supreme Court Monday stayed till further orders the local body election in Maharashtra on 27 per cent seats reserved for the Other Backward Classes (OBC).
The apex court made clear that election process for the other seats would continue.
The top court passed the order while hearing two pleas, including the one assailing the provisions inserted /amended through an Ordinance permitting reservation for the category of backward class of citizens up to 27 per cent uniformly throughout Maharashtra in the concerned local bodies.
"As a result, the State Election Commission cannot be permitted to proceed with the election programme already notified in respect of reserved seats for category OBC only in the concerned local bodies," said a bench of Justices A M Khanwilkar and C T Ravikumar.
"The election programme of all the concerned local bodies in respect of reserved seats for category Other Backward Class shall remain stayed until further orders," the bench said in its order.
The apex court observed that the issue had come up earlier before it and a three-judge bench had delivered judgement in which the court had noted the triple test to be followed before provisioning such reservation for the OBC category.
"To overcome the decision of this court, the impugned Ordinance has been issued by the state government and in compliance thereof, the State Election Commission has already notified the election programme which includes reservation for OBC on lines specified in the provisions mentioned in the impugned ordinance," the bench said.
The counsel appearing for Maharashtra told the bench that the provision made in the Ordinance is in conformity with the decision of the apex court and it is only providing for reservation to category of backward class citizen up to 27 per cent.
Observing that it is “not impressed” by this argument, the bench said that without setting up a commission or collating the empirical data to ascertain the extent of reservation required local government wise, it is not open to the State Election Commission to provide for reservation of OBC category.
“That is the first step that ought to have been done,” it said, while noting that the state government has constituted a commission in June this year.
The top court said that without waiting for the report and opinion, the state government hasten the process by issuing the Ordinance.
The bench also directed that the State Election Commission shall not notify reserved seats for category OBC for any future election to any local body, either mid-term or general election, as the case may be, until further orders of the apex court.
The bench posted the matter for hearing on December 13 along with the separate petition filed by Maharashtra which has sought direction to the Centre and other authorities to disclose to the state the SECC 2011 raw caste data of OBCs which has not been made available to them despite repeated demands.
During the hearing on the plea, the counsel appearing for the State Election Commission said that local body election has been notified and the nomination process would be closed on Tuesday.
“We will stay only the 27 per cent election, rest of the election will continue,” the bench observed.
The state's counsel told the bench then the OBC will remain unrepresented.
“That is your problem. You have created this. You have to suffer. The judgement was very clear,” the bench said.
The state's counsel said the amendment is only clarificatory that it will be up to 27 per cent.
He said the state has demanded data from the Centre and they have not got it yet.
“Your political compulsions cannot be the basis to undo the judgement,” the bench said.
In March this year, the apex court had said that reservation in favour of OBCs in concerned local bodies in Maharashtra cannot exceed aggregate 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, had 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.
The top court had delivered the verdict on pleas seeking a declaration that section 12(2)(c) of 1961 Act is ultra vires the provisions of the Constitution.
It had referred to the triple condition noted in the Constitution bench verdict of 2010, including 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.
The other conditions were -- 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 aggregate of 50 per cent of the total seats reserved in favour of SCs/STs/OBCs taken together.
