Vikas Kishanrao Gawali v. State of Maharashtra (2021) - 27% reservation of seats in elections for people belonging to backward classes

DATE: 4th March, 2021

JUDGES

• A.M. Khanwilkar
• Indu Malhotra
• Ajay Rastogi

PARTIES

• Vikas Kishanrao Gawali (PETITIONER)
• State of Maharashtra and Ors. (APPELLANT)

SUBJECT: This judgement mainly deals with section 12(2)(c) of Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961which deals with provision of 27% reservation of seats in election for people belonging to backward classes. The question before the court was whether the provision was in compliance with the decision given in K. Krishna Murthy v. UOI and Anr. or not.

AN OVERVIEW

1. The present case revolves around the decision given in the case K. Krishna Murthy v. UOI. In the said judgement it was held that the provisions 243-D(6) and 243-T(6) did not provide guidance on how to identify the backward classes. Also, there was no specified principle for the quantum of such reservation.
2. The court in the referred judgement observed that the state legislature must ensure that in no case the aggregate vertical reservation in respect of SC/ST/OBC taken together should exceed 50% of the seats in the concerned local bodies. Excessive and disproportionate reservations provided by the state legislation can be subject of challenges before the court but it does not justify striking down of articles 243-D(6) and 243-T(6).
3. It was further held that identification of backward classes for reservation is executive function and according to article 340, dedicated commissions need to be appointed to conduct a rigorous empirical inquiry into nature and implications of backwardness. Social and economic backwardness does not coincide with political backwardness.
4. The court observed that not all of the groups which have been given reservation benefits in the domain of education and employment need it in sphere of local-self-government. Barriers to political parties are not of the same nature as barriers limiting access to education and employment. Thus, policy making with regard to reservation in local-elf-government should be done.
5. There is absence of explicit constitutional guidance regarding quantum of reservation for backward classes in local-self-government. The legal position is that the upper ceiling of 50% with respect to vertical reservations in favour of SC/ST/OBC taken together should not be breached.
6. 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 should be reviewed and cannot be a static so as not to violate the principle of overbreadth of reservation.
7. Despite the declaration, Maharashtra government did not take a relook at existing provision. Couple of writ petitions were filed in Bombay High Court after which it was assured that corrective measures will be taken. However, the same did not happen and the situation remained unchanged. Thus, this petition was filed before the Supreme Court of India.

IMPORTANT PROVISIONS

ZILLA PARISHADS AND PANCHAYAT SAMITIS ACT, 1961

• Section 12(2)(c)- The seats to be reserved for persons belonging to the category of Backward Class of Citizens shall be 27 per cent. of the total number of seats to be filled in by election in a Zilla Parishad and such seats shall be allotted by rotation to different electoral divisions in a Zilla Parishad :

Provided that, in a Zilla Parishad comprising entirely the Scheduled Areas, the seats to be reserved for the persons belonging to the Backward Class of Citizens shall be 27 per cent. of the seats remaining (if any), after reservation of the seats for the Scheduled Tribes and the Scheduled Castes :
Provided further that, the reservation for the persons belonging to the Backward Class of Citizens in a Zilla Parishad falling only partially in the Scheduled Areas shall be in accordance with the provisions of clause (c) :
Provided also that one­half of the total number of seats so reserved shall be reserved for women belonging to the category of Backward Class of Citizens.

CONSTITUTION OF INDIA

• Article 243-D(6)- Nothing in this Part shall prevent the Legislature of a State from making any provision for reservation of seats in any Panchayat or offices of Chairpersons in the Panchayats at any level in favour of backward class of citizens.
• Article 243-T(6)- Nothing in this Part shall prevent the Legislature of a State from making any provision for reservation of seats in any Municipality or offices of Chairpersons in the Municipalities in favour of backward class of citizens.
• Article 340- Appointment of a Commission to investigate the conditions of backward classes

1. The President may by order appoint a Commission consisting of such persons as he thinks fit to investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labour and to make recommendations as to the steps that should be taken by the Union or any State to remove such difficulties and to improve their condition and as to the grants that should be made for the purpose by the Union or any State the conditions subject to which such grants should be made, and the order appointing such Commission shall define the procedure to be followed by the Commission
2. A Commission so appointed shall investigate the matters referred to them and present to the President a report setting out the facts as found by them and making such recommendations as they think proper
3. The President shall cause a copy of the report so presented together with a memorandum explaining the action taken thereon to be laid before each House of Parliament.

ISSUES: The prime issues before the Supreme court in the present case were-:

• Whether it is open for state legislature to reserve more than 50% seats in the concerned local bodies by providing reservation to SC/ST/OBCs?
• Whether the decision referred recognises that it is permissible to reserve seats to OBCs to the extent permissible in 1961 act?
• Whether the reservation can further exceed to 50% of total seats in exceptional cases?

ANALYSES OF THE JUDGEMENT

• The present is based on a petition challenging section 12(2)(c) of Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 which provided for 27% reservation to OBCs in local bodies and it also questions the notification of Maharashtra State Election Commission which provided reservation exceeding 50%.
• Both petitioner and respondent placed heavy reliance on the judgement given in K. Krishna Murthy case. It was stated in the said case that adequate document to help in identification of backward classes for the purpose of reservation by conducting empirical inquiry into the nature and implications off backwardness.
• However, the respondent did not comply with the said judgement. No material was presented on the basis of which quantum of reservation of OBCs was fixed at 27%.
• The court stated that during 1994 amendment there were no guidelines for fixing the limit of reserved seats for OBCs, but after the decision in K. Krishna Murthy case, it was imperative for the state to set up Commission for inquiry into nature of backwardness and to amend existing statutory provision such as section 12(2)(c) of the 1961 Act. However, there is no record of such commission being set up in the present scenario.
• Thus, the court observed that a triple test is mandatory to be complied by the state-

1. To set up dedicated commission to conduct rigorous empirical inquiry into the nature of backwardness
2. To specify proportion of reservation to be provisioned so as to not fall foul of overbreadth
3. Such reservation shall not exceed aggregate of 50% of total seats reserved in favour of SC/ST/OBCs together.

• Further, the court observed that the language of section 12(2)(c) gives impression that the rigid quantum of 27% of total seats across the seats need to be set apart in favour of OBCs. Such rigidity in provision cannot be sustained. So, empirical enquiry should be undertaken instead.
• The provision can be saved if the expression “shall be” in the section is construed as “maybe” to mean that OBC reservation may be upto 27% but is subject to outer limit of 50%.
• The court stated that the argument of the respondent that OBC reservation must be linked to population is wide and tenuous. Thus, the court held that section 12(2)C) is enabling provision and would not become functional and operational only upon fulfilling the triple test.
• Also, the courted noted that the notification of the state election commission is void and without the authority of law to the extent it provides reservation for OBCs.
• The enabling provision of section 12(2)(c) needs to be read down to mean that it may be invoked only upon complying with triple conditions before notifying seats as reserved for OBC in concerned local body. The court quashed and set aside the impugned notification to the extent they provide for reservation of seats for OBC being void and non est in law.
• Thus, election results of OBC candidates are non-est in law and the vacancy of seats caused on account of this declaration be forthwith filled up.

CONCLUSION

• This judgement mainly dealt with the reservation of seats for OBCs in elections and the court was very prudent in recognizing in the referred judgement that social and economic backwardness does not coincide with political backwardness. Barriers limiting access to education and employment are very different than those to political parties.
• Also, the idea of setting up committees to identify backwardness in local self government is very wise as every local body has different castes which are backward in other local bodies but may not be backward in the concerned area. Thus, the formation of commissions will ensure that the right classes are receiving the benefits of the reservation provided so.

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