The State’s Counsel pleaded with the SC bench to modify its Dec 6 order by which the ordinance to grant 27% reservation in polls was stayed and said the stay should be extended to the entire election process.
Opposing the court’s suggestion that seats reserved for OBCs be converted to general category, he said it would add “insult to injury” and assured the court that all the criteria fixed by the Supreme Court for OBC quota would be fulfilled within six months by the state.
He was backed by senior advocate Dushyant Dave who appeared for a OBC candidate and said the community should not go unrepresented in local administrative bodies as it would defeat the constitutional mandate. He said the Supreme Court had earlier upheld the state’s law to grant reservation to OBCs and its implementation was stayed as the state failed to fulfill the triple test. He said people belonging to OBCs should not suffer because of the state’s failure.
Senior advocate Vikas Singh, appearing for the petitioners, contended that the ordinance was illegal, unconstitutional and not in conformity with the SC’s ruling and told the bench not to defer polls as pleaded by the state.
Noting that the commission formed by the state has not submitted its report and the decision taken by the state was violative of the earlier SC judgment in which it had held that the government cannot justify the reservation for OBCs without fulfilling the triple test, the bench said seats cannot be reserved for OBCs under these circumstances. As per the SC’s verdict, the indisputable triple tests are—(1) to set up a dedicated commission to conduct an empirical inquiry into the nature and implications of backwardness qua local bodies; (2) to specify proportion of reservation required; (3) to ensure such reservation shall not exceed aggregate of 50% of the total seats reserved in favour of SCs/STs/OBCs taken together.
The court also pulled up the state election commission (SEC) for following the ordinance brought by the state and issuing a notification for reserving 27% seats for OBCs when it was in violation of the SC’s order. “Why did you agree to do it when Step 1 of the triple test was not completed? You are equally responsible...you should have rushed to the court before issuing notification,” the bench said. It thereafter directed the SEC to issue fresh notification in a week to declare earlier OBC-reserved seats as general and go ahead with the polls.
While staying the ordinance on Dec 6, the bench had told the state that the problem was created by the latter and it had to face the consequences. It also told the state that its political compulsion could not be the basis for undoing apex court judgments.
Supreme Court on March 4 upheld validity of Maharashtra’s law to reserve seats for backward classes in zilla parishad polls but said it cannot be implemented till the government meets the conditions fixed by its constitutional bench. Noting that even the first step of setting up the commission remained a “mirage” and the state itself has conceded that in case of some local bodies, reservation has far exceeded 50%, the apex court quashed the notifications issued by the state for OBC quota in the elections. The state had brought an ordinance to amend two laws to ensure reservation for OBCs.
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