The Supreme Court on Monday, 6 December, stayed the Maharashtra government's decision to grant 27 percent reservation for Other Backward Classes, which was brought by an ordinance, in the local body elections until further orders.
A bench of Justices AM Khanwilkar and CT Ravikumar observed that 27 percent OBC reservation could not be implemented without setting up a commission and also without collating data for inadequacy of representation in local government.
What the Supreme Court Said
"Without setting up the Commission and collating contemporaneous empirical data to ascertain the extent of reservation required to be provided local body-wise, it is not open for the State Election Commission to provide reservation for OBC category despite the statutory provision in that regard," said the bench, in its order.
It said the first step of collating empirical data has not been completed so far.
Senior advocate Shekhar Naphade, appearing for the Maharashtra government, argued that the provision inserted vide the impugned Ordinance is in conformity with the decision of the top court. He added that it is for providing reservation to the category of backward class citizens up to 27 percent only.
In March this year, the apex court had struck down Maharashtra's move to introduce 27 percent reservation for OBCs in zilla parishads and panchayat samitis. The top court had then said it was violative of the 50 percent cap laid down in the top court's Indra Sawhney judgment.
The bench noted that the state government has constituted a commission vide notification dated 29 June 2021.
"However, without waiting for its report and opinion, the state government hastened the process by issuing Ordinance, which clearly impinges upon the legal position expounded by the Constitution Bench of this court and restated in subsequent three Judges' decision in Vikas Kishanrao Gawali (supra)," it said.
The top court further added: "As a result, the State Election Commission shall desist from proceeding with the Election Programme already notified in respect of reserved seats for 'OBC category only', in the concerned local bodies."
The bench said the election programme in respect of all the local bodies across the state in respect of reserved seats for the category of Other Backward Class, shall remain stayed until further orders. "Rest of the Election Programme(s) can proceed for other reserved seats (viz., other than OBC), including general seats," it said.
The bench added that the SEC should desist from notifying reserved seats for OBC category even in case of future elections to any local bodies, either mid-term or general elections, as the case may be, until further orders of the top court. The top court has listed the matter for further hearing on 13 December.
The top court passed the order on pleas of two petitioners, Rahul Ramesh Wagh and Kisan Rao, challenging the Maharashtra government Ordinance, which introduced 27 percent OBC quota in the local body elections and the notifications issued by the State Election Commission to give it effect.