Don’t breach 50% quota cap in Maharashtra where local polls not yet notified: SC

The court passed the order in a batch of petitions which sought implementation of the court’s earlier orders directing polls to all local bodies in the state to be completed by January 31

The Supreme Court on Friday directed elections to be held across all local bodies in Maharashtra while ordering that the seats where reservation exceeds 50% will either be excluded or held subject to the final court order.

The bench directed all the petitions to be listed before a three-judge bench on January 21. (HT file photo)

The court passed the order in a batch of petitions which sought implementation of the court’s earlier orders directing polls to all local bodies in the state to be completed by January 31.

A contempt petition filed by one Rahul Ramesh Wagh alleged that the state was violating the court’s triple test laid down in a 2021 judgment which required that total reservation should not exceed 50% across any seats in the local bodies.

The bench of Chief Justice of India (CJI) Surya Kant and justice Joymalya Bagchi identified two categories of local bodies - where elections are notified and where elections are yet to be notified.

The Maharashtra state election commission (MSEC) represented by senior advocate Balbir Singh said that on December 2, elections will be held for 246 municipal councils and 42 Nagar Panchayats. He further stated that in 40 municipal councils and 17 Nagar Panchayats, total reservation exceeds the 50% mark.

For the first category of local bodies, the bench said, “The elections of 246 municipal councils and 42 nagar panchayats may take place as per the notified schedule. However, the result of 40 municipal councils and 17 nagar panchayats where reservation exceeds 50% shall be subject to final orders passed in these proceedings.”

The second category of local bodies involved 336 Panchayat Samitis, 32 Zila Parishads and 29 municipal corporations where elections are yet to be notified.

MSEC counsel further informed the court that the exercise of identifying the seats where reservation exceeds 50% across these local bodies has not been done. However, Singh said that as regards municipal corporations, the breach of 50% reservation benchmark will take place only in two corporations.

The court ordered elections to all 29 corporations while making them subject to the final outcome of the proceedings in the top court where the identification of other backward classes in the state made by the Banthia Commission report is under challenge.

“Wherever reservation is not exceeding 50% in 32 zila parishads and 336 panchayat samitis, let elections be held in terms of our earlier orders”, the bench held.

The bench directed all the petitions to be listed before a three-judge bench on January 21.

The court passed the order as it was informed by senior advocate Vikas Singh who appeared for petitioner Wagh that several local bodies in the state are lying vacant for years together. As the affairs at the local level are under state’s direct administration, he urged the court to ensure local bodies become functional at the earliest.

While the MSEC did not commit on a time schedule, it informed the bench, “The process of re-working the seats based on court’s order today will take time.”

The court asserted, “Wherever reservation is not exceeding 50%, you are bound to hold elections.” While the petitioner’s lawyer requested the court to even set a timeline, the bench refrained from doing so, observing that it will “unnecessarily complicate” the situation.

To facilitate the hearing of the case in January, the court appointed advocates Siddharth Dharmadhikari for Maharashtra and Amol Karande representing petitioners to compile all necessary documents by January 9.

The local body elections in Maharashtra were held after the Supreme Court in 2021 laid down a triple test for rolling out reservation for OBCs in these polls. This test required states to carry out a scientific study before rolling out OBC reservation, followed by determination of the quantum of reservation to be applied in each local body area, and ensure that the total reservation of scheduled castes, scheduled tribes and OBCs does not exceed 50%.

As part of the triple test, the state set up the Banthia commission which conducted an empirical study and recommended 27% reservation for OBCs in local bodies in 2022.

The commission also recommended lowering the reservation for OBCs in tribal districts where tribals have more reservation (14-24%) so as to adhere to the 50% cap.

The petitions before the top court have largely challenged the report for giving over-representation to OBCs. However, a section of OBCs led by senior advocate Indira Jaising argued against the report for under-representing OBCs in the state. She said that the commission did not carry out an effective survey to come to this conclusion.

The bench on Friday termed this as a “contentious” issue as it admitted that they are yet to go through the report.

In 2010, a Constitution bench of the Supreme Court in K Krishnamurthi held that election of OBCs to local bodies cannot exceed 50%. This became the guiding principle for the 2021 order to make it part of the triple test.