# VIKAS KISHANRAO GAWALI v. STATE OF MAHARASHTRA & ORS

- **Citation:** [2021] 2 S.C.R. 173
- **Court:** Supreme Court of India
- **Decided:** 2021-03-04
- **Bench:** A.M. Khanwilkar, Indu Malhotra, Ajay Rastogi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/vikas-kishanrao-gawali-v-state-of-maharashtra-ors-34827
- **Pages:** 28

## Headnote

Maharashtra Zilla Parishads and Panchayat Samitis Act,
1961 - s.12(2)(c) - Constitution of India - Arts. 14, 16, 243-D and
243-T - Reservation in local self-government - Petitioners sought
a declaration that s.12(2)(c) of the Maharashtra Zilla Parishads
and Panchayat Samitis Act, 1961, is ultra vires the provisions of
Arts. 243-D and 243-T including Arts. 14 and 16 of the Constitution
- In addition, the validity of notifications dated 27.07.2018 and
14.02.2020 issued by the State Election Commission providing for
reservation exceeding 50 per cent in respect of Zilla Parishads and
Panchayat Samitis have been questioned - The provision in the
form of s.12 of the 1961 Act enables the respondents to reserve 27
per cent of seats for persons belonging to the Backward class citizens
in the concerned Zilla Parishads and Panchayat Samitis - The
respondent-State urged that the that it is permissible to reserve seats
for OBCs to the extent permissible in the 1961 Act - Held: The
decision of the Constitution Bench in K. Krishna Murthy required
the triple test/conditions required to be complied by the State before
reserving seats in local bodies for OBCs i.e. (1) 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; (2) 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 (3) 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 - The said triple test conditions were
not complied by the State - As regards s.12(2)(c) of the 1961 Act
inserted in 1994, the plain language does give an impression that
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uniform and rigid quantum of 27 per cent of the total seats across
the State need to be set apart by way of reservation in favour of
OBCs - In light of the dictum of the Constitution Bench, such a
rigid provision cannot be sustained much less having uniform
application to all the local bodies within the State - The provision
in the form of s.12(2)(c) can be saved by reading it down - The
expression "shall be" preceding 27 per cent occurring in s.12(2)(c),
be construed as "may be" including to mean that reservation for
OBCs may be up to 27 per cent but subject to the outer limit of 50
per cent aggregate in favour of SCs/STs/OBCs taken together, as
enunciated by the Constitution Bench of this Court - In the instant
case, no inquiry much less contemporaneous rigorous empirical
inquiry into the nature and implications of backwardness by a
dedicate Commission established by the State for the purpose was
undertaken, it is not open to the State to fall back on s.12(2)(c) as
enacted in 1994 - That provision is an enabling provision and
would become functional and operational only upon fulfilling triple
test as specified by the Constitution Bench - Thus, the impugned
notifications issued by the State Election Commission reserving seats
for OBCs in the concerned local bodies, suffer from the vice of
foundational jurisdictional error - The impugned notifications to
the extent it provides for reservation for OBCs in the concerned
local bodies, is, therefore, void and without authority of law.
Disposing of the writ petitions, the Court
HELD: 1. On a fair reading of the exposition in the K.
Krishna Murthy, what follows is that the reservation for OBCs is
only a "statutory" dispensation to be provided by the State
legislations unlike the "constitutional" reservation regarding
SCs/STs which is linked to the proportion of population. As
regards the State legislations providing for reservation of seats
in respect of OBCs, it must ensure that in no case the aggregate
vertical reservation in respect of SCs/STs/OBCs taken together
should exceed 50 per cent of the seats in the concerned l

## Text

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 [2021] 2 S.C.R. 173
173
VIKAS KISHANRAO GAWALI
v.
STATE OF MAHARASHTRA & ORS.
(Writ Petition (Civil) No. 980 of 2019)
MARCH 04, 2021
[A.M. KHANWILKAR, INDU MALHOTRA AND
AJAY RASTOGI, JJ.]
Maharashtra Zilla Parishads and Panchayat Samitis Act,
1961 - s.12(2)(c) - Constitution of India - Arts. 14, 16, 243-D and
243-T - Reservation in local self-government - Petitioners sought
a declaration that s.12(2)(c) of the Maharashtra Zilla Parishads
and Panchayat Samitis Act, 1961, is ultra vires the provisions of
Arts. 243-D and 243-T including Arts. 14 and 16 of the Constitution
- In addition, the validity of notifications dated 27.07.2018 and
14.02.2020 issued by the State Election Commission providing for
reservation exceeding 50 per cent in respect of Zilla Parishads and
Panchayat Samitis have been questioned - The provision in the
form of s.12 of the 1961 Act enables the respondents to reserve 27
per cent of seats for persons belonging to the Backward class citizens
in the concerned Zilla Parishads and Panchayat Samitis - The
respondent-State urged that the that it is permissible to reserve seats
for OBCs to the extent permissible in the 1961 Act - Held: The
decision of the Constitution Bench in K. Krishna Murthy required
the triple test/conditions required to be complied by the State before
reserving seats in local bodies for OBCs i.e. (1) 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; (2) 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 (3) 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 - The said triple test conditions were
not complied by the State - As regards s.12(2)(c) of the 1961 Act
inserted in 1994, the plain language does give an impression that
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uniform and rigid quantum of 27 per cent of the total seats across
the State need to be set apart by way of reservation in favour of
OBCs - In light of the dictum of the Constitution Bench, such a
rigid provision cannot be sustained much less having uniform
application to all the local bodies within the State - The provision
in the form of s.12(2)(c) can be saved by reading it down - The
expression "shall be" preceding 27 per cent occurring in s.12(2)(c),
be construed as "may be" including to mean that reservation for
OBCs may be up to 27 per cent but subject to the outer limit of 50
per cent aggregate in favour of SCs/STs/OBCs taken together, as
enunciated by the Constitution Bench of this Court - In the instant
case, no inquiry much less contemporaneous rigorous empirical
inquiry into the nature and implications of backwardness by a
dedicate Commission established by the State for the purpose was
undertaken, it is not open to the State to fall back on s.12(2)(c) as
enacted in 1994 - That provision is an enabling provision and
would become functional and operational only upon fulfilling triple
test as specified by the Constitution Bench - Thus, the impugned
notifications issued by the State Election Commission reserving seats
for OBCs in the concerned local bodies, suffer from the vice of
foundational jurisdictional error - The impugned notifications to
the extent it provides for reservation for OBCs in the concerned
local bodies, is, therefore, void and without authority of law.
Disposing of the writ petitions, the Court
HELD: 1. On a fair reading of the exposition in the K.
Krishna Murthy, what follows is that the reservation for OBCs is
only a "statutory" dispensation to be provided by the State
legislations unlike the "constitutional" reservation regarding
SCs/STs which is linked to the proportion of population. As
regards the State legislations providing for reservation of seats
in respect of OBCs, it must ensure that in no case the aggregate
vertical reservation in respect of SCs/STs/OBCs taken together
should exceed 50 per cent of the seats in the concerned local
bodies. In case, constitutional reservation provided for SCs and
STs were to consume the entire 50 per cent of seats in the
concerned local bodies and in some cases in scheduled area even
beyond 50 per cent, in respect of such local bodies, the question
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of providing further reservation to OBCs would not arise at all.
To put it differently, the quantum of reservation for OBCs ought
to be local body specific and be so provisioned to ensure that it
does not exceed the quantitative limitation of 50 per cent
(aggregate) of vertical reservation of seats for SCs/STs/OBCs
taken together. [Para 7][187-A-D]
2. Besides this inviolable quantitative limitation, the State
Authorities are obliged to fulfil other pre-conditions before
reserving seats for OBCs in the local bodies. The foremost
requirement is to collate adequate materials or documents that
could help in identification of backward classes for the purpose
of reservation by conducting a contemporaneous rigorous
empirical inquiry into the nature and implications of backwardness
in the concerned local bodies through an independent dedicated
Commission established for that purpose. Thus, 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. Further, it cannot be a static
arrangement. It must be reviewed from time to time so as not to
violate the principle of overbreadth of such reservation (which in
itself is a relative concept and is dynamic). Besides, it must be
confined only to the extent it is proportionate and within the
quantitative limitation as is predicated by the Constitution Bench
of this Court. [Para 8][187-D-G]
3. As a matter of fact, no material is forthcoming as to on
what basis the quantum of reservation for OBCs was fixed at 27
per cent, when it was inserted by way of amendment in 1994.
Indeed, when the amendment was effected in 1994, there was no
guideline in existence regarding the modality of fixing the limits
of reserved seats for OBCs as noted in the decision of the
Constitution Bench in K. Krishna Murthy. After that decision,
however, it was imperative for the State to set up a dedicated
Commission to conduct contemporaneous rigorous empirical
inquiry into the nature and implications of backwardness and on
the basis of recommendations of that Commission take follow up
VIKAS KISHANRAO GAWALI v. STATE OF MAHARASHTRA
& ORS.
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steps including to amend the existing statutory dispensation, such
as to amend Section 12(2)(c) of the 1961 Act. There is nothing on
record that such a dedicated Commission had been set up until
now. [Para 11][188-D-G]
4. Be that as it may, it is indisputable that the triple test/
conditions required to be complied by the State before reserving
seats in the local bodies for OBCs has not been done so far. To
wit, (1) 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; (2) 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 (3) 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. In a given local body, the space for providing such
reservation in favour of OBCs may be available at the time of
issuing election programme (notifications). However, that could
be notified only upon fulfilling the aforementioned pre-conditions.
Admittedly, the first step of establishing dedicated Commission
to undertake rigorous empirical inquiry itself remains a mirage.
To put it differently, it will not be open to respondents to justify
the reservation for OBCs without fulfilling the triple test, referred
to above. [Para 12][189-B-E]
5. As regards Section 12(2)(c) of the 1961 Act inserted in
1994, the plain language does give an impression that uniform
and rigid quantum of 27 per cent of the total seats across the
State need to be set apart by way of reservation in favour of OBCs.
In light of the dictum of the Constitution Bench, such a rigid
provision cannot be sustained much less having uniform
application to all the local bodies within the State. Instead,
contemporaneous empirical inquiry must be undertaken to identify
the quantum qua local body or local body specific. [Para 13]
[189-E-F]
6. In opinion of this Court, the provision in the form of
Section 12(2)(c) can be saved by reading it down, to mean that
reservation in favour of OBCs in the concerned local bodies may
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be notified to the extent, that it does not exceed 50 per cent of
the total seats reserved in favour of SCs/STs/OBCs taken
together. In other words, the expression "shall be" preceding
27 per cent occurring in Section 12(2)(c), be construed as "may
be" including to mean that reservation for OBCs may be up to
27 per cent but subject to the outer limit of 50 per cent aggregate
in favour of SCs/STs/OBCs taken together, as enunciated by the
Constitution Bench of this Court. On such interpretation, Section
12(2)(c) can be saved and at the same time, the law declared by
the Constitution Bench of this Court can be effectuated in its
letter and spirit. [Para 14][189-G-H; 190-A-B]
7. In light of the finding recorded hitherto (that no inquiry
much less contemporaneous rigorous empirical inquiry into the
nature and implications of backwardness by a dedicate
Commission established by the State for the purpose has been
undertaken), it is not open to the State to fall back on Section
12(2)(c) as enacted in 1994. That provision, as aforementioned,
is an enabling provision and would become functional and
operational only upon fulfilling triple test as specified by the
Constitution Bench of this Court. That is the sine qua non or the
quintessence for exercise of power to reserve seats for OBCs in
the local bodies. Indeed, the exercise of power to reserve seats
for OBCs springs from Section 12(2)(c) of the 1961 Act, but that
is hedged by conditions and limitations specified by the
Constitution Bench of this Court and would not get ignited until
such time. [Para 17][190-G-H; 191-A-B]
8. Thus understood, the impugned notifications issued by
the State Election Commission reserving seats for OBCs in the
concerned local bodies, suffer from the vice of foundational
jurisdictional error. The impugned notification(s) to the extent it
provides for reservation for OBCs in the concerned local bodies,
is, therefore, void and without authority of law. [Para 18]
[191-B-C]
9. A priori, the elections conducted by the State Election
Commission on the basis of such notifications concerning
reserved OBC seats alone are vitiated and must be regarded as
non est in the eyes of law from its inception in the wake of
VIKAS KISHANRAO GAWALI v. STATE OF MAHARASHTRA
& ORS.
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declaration of law in that regard by the Constitution Bench of
this Court. [Para 19][191-C-D]
10. In conclusion, this Court hold that Section 12(2)(c) of
the 1961 Act is an enabling provision and needs to be read down
to mean that it may be invoked only upon complying with the
triple conditions as specified by the Constitution Bench of this
Court, before notifying the seats as reserved for OBC category
in the concerned local bodies. Further, this Court quash and set
aside the impugned notifications to the extent they provide for
reservation of seats for OBCs being void and non est in law
including the follow up actions taken on that basis. In other words,
election results of OBC candidates which had been made subject
to the outcome of these writ petitions including so notified in the
concerned election programme issued by the State Election
Commission, are declared as non est in law and the vacancy of
seat(s) caused on account of this declaration be forthwith filled
up by the State Election Commission with general/open
candidate(s) for the remainder term of the concerned local bodies,
by issuing notification in that regard. [Para 25][198-E-G;
199-A-B]
K. Krishna Murthy (Dr.) & Ors. v. Union of India &
Anr. (2010) 7 SCC 202 : [2010] 6 SCR 972 - followed.
Case Law Reference
[2010] 6 SCR 972
followed
para 2
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil)
No. 980 Of 2019
UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA
With
Writ Petition (Civil) Nos. 981 of 2019, 1408 of 2019, 743 of 2020.
Vikas Singh, Sr. Adv., Sandeep Sudhakar Deshmukh, Amol B.
Karande, Kapish Seth, Mukesh Samarth, D.N. Goburdhun, Mrs. Sujata
Kumar Muni, Somanatha Padhan, Ravindra Keshavrao Adsure, Rahul
Chitnis, Sachin Patil, Aaditya A. Pande, Geo Joseph, Ajit Kadathankar,
Vijay Kumar, Ms. Bharti Tyagi, Ms. Qurratulain, Ms. Damini Hajela,
Brij Kishor Sah, Nicholas Chaudhary, Aditya Jadhav, Himanshu Bhushan,
Sudhanshu S. Choudhari, and Mahesh P. Shinde, Advs. for the appearing
parties.
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The Judgment of the Court was delivered by
A.M. KHANWILKAR, J.
1. These writ petitions under Article 32 of the Constitution of
India seek a declaration that Section 12(2)(c) of the Maharashtra Zilla
Parishads and Panchayat Samitis Act, 19611, is ultra vires the provisions
of Articles 243-D and 243-T including Articles 14 and 16 of the
Constitution of India. In addition, the validity of the notifications dated
27.7.2018 and 14.2.2020 issued by the State Election Commission,
Maharashtra providing for reservation exceeding 50 per cent in respect
of Zilla Parishads and Panchayat Samitis of districts Washim, Akola,
Nagpur and Bhandara have been questioned and it is prayed that the
same be quashed and set aside. A district wise chart has been presented
to illustrate the excess reserved percentage and seats (more than
aggregate 50 per cent of total seats), in some of the districts, which
reads thus:
"District: Washim
District: Bhandara
District: Akola
District: Nagpur
Particulars
Total
Seats
General
Reserved
Exceed 50 per cent
SC
ST
OBC
Percentage
Seats
Zilla Parishad
52
23
11
04
14
5.76 %
3
Gram Panchayat
490
219
100
39
132
5.30 %
26
Particulars
Total
Seats
General
Reserved
Exceed 50 per cent
SC
ST
OBC
Percentage
Seats
Zilla Parishad
53
22
12
05
14
8.49 %
4
Panchayat Samiti
106
44
25
09
28
8.49 %
9
Gram Panchayat
539
226
125
42
146
8.07 %
43
Particulars
Total
Seats
General
Reserved
Exceed 50 per cent
SC
ST
OBC
Percentage
Seats
Zilla Parishad
52
25
09
04
14
1.92 %
1
Gram Panchayat
541
261
91
43
146
1.75 %
9
Particulars
Total
Seats
General
Reserved
Exceed 50 per cent
SC
ST
OBC
Percentage
Seats
Zilla Parishad
58
25
10
07
16
6.89 %
4
Panchayat Samiti
116
51
19
15
31
6.03 %
7
Gram Panchayat
772
330
137
97
208
7.25 %
56
1 for short, "the 1961 Act"
VIKAS KISHANRAO GAWALI v. STATE OF MAHARASHTRA
& ORS.
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[2021] 2 S.C.R.
District: Gondiya
(emphasis supplied)
2. The conundrum in these matters revolves around the exposition
of the Constitution Bench of this Court in K. Krishna Murthy (Dr.) &
Ors. v. Union of India & Anr.2. Relying on the dictum in the said decision,
the petitioners would urge that it is no more open to the respondents to
reserve more than 50 per cent (aggregate) seats in the concerned local
bodies by providing reservation for Scheduled Castes3/Scheduled Tribes4/
Other Backward Classes5. Whereas, the respondent-State would urge
that the stated decision recognises that it is permissible to reserve seats
for OBCs to the extent permissible in the 1961 Act. Further, in exceptional
situation, the reservation for SCs/STs/OBCs in the concerned local bodies
(Zilla Parishads and Panchayat Samitis) could exceed even 50 per
cent of the total seats. This is the central issue to be dealt with in the
present writ petitions.
3. The provision in the form of Section 12 of the 1961 Act enables
the respondents to reserve 27 per cent of seats in the concerned Zilla
Parishads and Panchayat Samitis. Section 12 of the 1961 Act is
reproduced hereunder:
"12. Division of District into electoral division.-(1) The State
Election Commission shall, for the purposes of election of
Councillors divide every District; into electoral divisions (the
territorial extent of any such division not being outside the limits
of the same Block), each returning one Councillor, and there shall
be a separate election for each electoral division:
Provided that, such electoral division shall be divided in such a
manner that the ratio between the population of each electoral
division and the total number of Councillors to be elected for the
Zilla Parishad shall, so far as practicable, be the same throughout
the Zilla Parishad area:
Particulars
Total
Seats
General
Reserved
Exceed 50 per cent
SC
ST
OBC
Percentage
Seats
Zilla Parishad
53
23
06
10
14
6.60 %
3
Panchayat Samiti
106
45
12
19
30
7.54 %
8
Gram Panchayat
544
232
66
99
147
7.35 %
40"
2 (2010) 7 SCC 202
3 for short, "the SCs"
4 for short, "the STs"
5 for short, "the OBCs"
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Provided further that, while distributing such electoral divisions
among the Panchayat Samitis, not less than two electoral divisions
shall be allotted to each Panchayat Samiti.
(2)(a) In the seats to be filled in by election in a Zilla Parishad
there shall be seats reserved for persons belonging to the Scheduled
Castes, Scheduled Tribes, Backward Class of citizens and women,
as may be determined by the State Election Commission in the
prescribed manner:
(b) the seats to be reserved for the persons belonging to the
Scheduled Castes and the Scheduled Tribes in a Zilla Parishad
shall bear, as nearly as may be, the same proportion to the total
number of seats to be filled in by direct election in that Zilla
Parishad as the population of the Scheduled Castes or, as the
case may be, the Scheduled Tribes in that Zilla Parsishad area
bears to the total population of that area 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 Scheduled Tribes
shall not be less than one-half of the total number of seats in the
Zilla Parishad:
Provided further that, the reservation for the Scheduled Tribes in
a Zilla Parishad falling only partially in the Scheduled Areas shall
be in accordance with the provisions of clause (b):
Provided also that one-half of the total number of seats so reserved
shall be reserved for women belonging to the Scheduled Castes
or, as the case may be, the Scheduled Tribes:
(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
VIKAS KISHANRAO GAWALI v. STATE OF MAHARASHTRA
& ORS. [A.M. KHANWILKAR, J.]
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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 one-half of the total number of seats so
reserved shall be reserved for women belonging to the
category of Backward Class of Citizens:
(d) one-half (including the number of seats reserved for women
belonging to the Scheduled Castes, Scheduled Tribes and the
category of Backward Class of Citizens) of the total number of
seats to be filled in by direct election in a Zilla Parishad shall be
reserved for women and such seats shall be allotted by rotation to
different electoral divisions in a Zilla Parishad.
(3) The reservation of seats (other than the reservation for women)
under sub-section (2) shall cease to have effect on the expiration
of the period specified in Article 334 of the Constitution of India."
(emphasis supplied)
4. We may straight away advert to the decision in K. Krishna
Murthy (supra). In paragraph 9 of the decision, this Court formulated
two questions for its consideration, the same read thus:
"9. In light of the submissions that have been paraphrased in the
subsequent paragraphs, the contentious issues in this case can be
framed in the following manner:
(i) Whether Article 243-D(6) and Article 243-T(6) are
constitutionally valid since they enable reservations in
favour of backward classes for the purpose of occupying
seats and chairperson positions in panchayats and
municipalities respectively?
(ii) Whether Article 243-D(4) and Article 243-T(4) are
constitutionally valid since they enable the reservation of
chairperson positions in panchayats and municipalities
respectively?"
(emphasis supplied)
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5. As regards the discussion on the question of validity of
reservation in favour of backward classes, the Court proceeded to
examine the same in paragraphs 58 to 67 of the reported decision. The
essence of the view expressed by the Constitution Bench on the said
question is that Articles 243-D(6) and 243-T(6) of the Constitution of
India are merely enabling provisions and it would be improper to strike
them down as violative of the equality clause. At the same time, the
Court noted that these provisions did not provide guidance on how to
identify the backward classes and neither do they specify any principle
for the quantum of such reservations. Instead, discretion has been
conferred on the State legislatures to design and confer reservation
benefits in favour of backward classes. While dealing with the provisions
pertaining to reservations in favour of backward classes concerning the
States of Karnataka and Uttar Pradesh wherein the quantum of
reservation was 33 per cent and 27 per cent respectively, the Court
noted that objections can be raised even with regard to similar provisions
of some other State legislations. The real concern was about overbreadth
in the State legislations and while dealing with that aspect in paragraphs
60 to 63, the Court noted thus:
"60. There is no doubt in our minds that excessive and
disproportionate reservations provided by the State legislations
can indeed be the subject-matter of specific challenges before
the courts. However, the same does not justify the striking down
of Articles 243-D(6) and 243-T(6) which are constitutional
provisions that enable reservations in favour of backward classes
in the first place. As far as the challenge against the various
State legislations is concerned, we were not provided with
adequate materials or argumentation that could help us to
make a decision about the same. The identification of
backward classes for the purpose of reservations is an
executive function and as per the mandate of Article 340,
dedicated commissions need to be appointed to conduct a
rigorous empirical inquiry into the nature and implications
of backwardness.
61. It is also incumbent upon the executive to ensure that
reservation policies are reviewed from time to time so as
to guard against overbreadth. In respect of the objections
against the Karnataka Panchayat Raj Act, 1993, all that we can
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refer to is the Chinnappa Reddy Commission Report (1990) which
reflects the position as it existed twenty years ago. In the absence
of updated empirical data, it is well-nigh impossible for the
courts to decide whether the reservations in favour of OBC
groups are proportionate or not.
62. Similarly, in the case of the State of Uttar Pradesh, the claims
about the extent of the OBC population are based on the 1991
census. Reluctant as we are to leave these questions open, it
goes without saying that the petitioners are at liberty to raise
specific challenges against the State legislations if they can point
out flaws in the identification of backward classes with the help
of updated empirical data.
63. As noted earlier, social and economic backwardness does not
necessarily coincide with political backwardness. In this respect,
the State Governments are well advised to reconfigure their
reservation policies, wherein the beneficiaries under
Articles 243-D(6) and 243-T(6) need not necessarily be
coterminous with the Socially and Educationally Backward
Classes (SEBCs) [for the purpose of Article 15(4)] or even
the backward classes that are under represented in
government jobs [for the purpose of Article 16(4)]. It would
be safe to say that not all of the groups which have been given
reservation benefits in the domain of education and employment
need reservations in the sphere of local self-government. This is
because the barriers to political participation are not of the
same character as barriers that limit access to education
and employment. This calls for some fresh thinking and
policy-making with regard to reservations in local selfgovernment."
(emphasis supplied)
6. Again, in paragraph 64, the Court noted about the absence of
explicit constitutional guidance as to the quantum of reservation in favour
of backward classes in local self-government. For that, the thumb rule is
that of proportionate reservation. The Court hastened to add a word of
caution, which in, essence, is the declaration of the legal position that the
upper ceiling of 50 per cent (quantitative limitation) with respect to vertical
reservations in favour of SCs/STs/OBCs taken together should not be
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breached. This has been made amply clear and restated even in paragraph
67 of the reported decision, which reads thus:
"67. In the recent decision reported as Union of India v. Rakesh
Kumar [(2010) 4 SCC 50 : (2010) 1 SCC (L&S) 961 : (2010) 1
Scale 281] this Court has explained why it may be necessary to
provide reservations in favour of the Scheduled Tribes that exceed
50% of the seats in panchayats located in the Scheduled Areas.
However, such exceptional considerations cannot be
invoked when we are examining the quantum of
reservations in favour of backward classes for the purpose
of local bodies located in general areas. In such
circumstances, the vertical reservations in favour of SCs/
STs/OBCs cannot exceed the upper limit of 50% when
taken together. It is obvious that in order to adhere to this
upper ceiling, some of the States may have to modify their
legislations so as to reduce the quantum of the existing
quotas in favour of OBCs."
(emphasis supplied)
On that analysis, the Court in conclusion noted as follows:
"Conclusion
82. In view of the above, our conclusions are:
(i)
The nature and purpose of reservations in the context
of local self-government is considerably different from
that of higher education and public employment. In this
sense, Article 243-D and Article 243-T form a distinct
and independent constitutional basis for affirmative
action and the principles that have been evolved in
relation to the reservation policies enabled by Articles
15(4) and 16(4) cannot be readily applied in the context
of local self-government. Even when made, they need
not be for a period corresponding to the period of
reservation for the purposes of Articles 15(4) and 16(4),
but can be much shorter.
(ii)
Article 243-D(6) and Article 243-T(6) are
constitutionally valid since they are in the nature of
provisions which merely enable the State Legislatures
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to reserve seats and chairperson posts in favour of
backward classes. Concerns about disproportionate
reservations should be raised by way of specific
challenges against the State legislations.
(iii)
We are not in a position to examine the claims
about overbreadth in the quantum of reservations
provided for OBCs under the impugned State
legislations since there is no contemporaneous
empirical data. The onus is on the executive to
conduct a rigorous investigation into the patterns
of backwardness that act as barriers to political
participation which are indeed quite different from
the patterns of disadvantages in the matter of
access to education and employment. As we have
considered and decided only the constitutional validity
of Articles 243-D(6) and 243-T(6), it will be open to
the petitioners or any aggrieved party to challenge any
State legislation enacted in pursuance of the said
constitutional provisions before the High Court. We are
of the view that the identification of "backward
classes" under Article 243-D(6) and Article 243T(6) should be distinct from the identification of
SEBCs for the purpose of Article 15(4) and that
of backward classes for the purpose of Article
16(4).
(iv)
The upper ceiling of 50% vertical reservations in
favour of SCs/STs/OBCs should not be breached
in the context of local self-government.
Exceptions can only be made in order to safeguard
the interests of the Scheduled Tribes in the matter
of their representation in panchayats located in
the Scheduled Areas.
(v)
The reservation of chairperson posts in the manner
contemplated by Articles 243-D(4) and 243-T(4) is
constitutionally valid. These chairperson posts cannot
be equated with solitary posts in the context of public
employment."
(emphasis supplied)
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7. On a fair reading of the exposition in the reported decision,
what follows is that the reservation for OBCs is only a "statutory"
dispensation to be provided by the State legislations unlike the
"constitutional" reservation regarding SCs/STs which is linked to the
proportion of population. As regards the State legislations providing for
reservation of seats in respect of OBCs, it must ensure that in no case
the aggregate vertical reservation in respect of SCs/STs/OBCs taken
together should exceed 50 per cent of the seats in the concerned local
bodies. In case, constitutional reservation provided for SCs and STs were
to consume the entire 50 per cent of seats in the concerned local bodies
and in some cases in scheduled area even beyond 50 per cent, in respect
of such local bodies, the question of providing further reservation to
OBCs would not arise at all. To put it differently, the quantum of reservation
for OBCs ought to be local body specific and be so provisioned to ensure
that it does not exceed the quantitative limitation of 50 per cent
(aggregate) of vertical reservation of seats for SCs/STs/OBCs taken
together.
8. Besides this inviolable quantitative limitation, the State Authorities
are obliged to fulfil other pre-conditions before reserving seats for OBCs
in the local bodies. The foremost requirement is to collate adequate
materials or documents that could help in identification of backward
classes for the purpose of reservation by conducting a contemporaneous
rigorous empirical inquiry into the nature and implications of backwardness
in the concerned local bodies through an independent dedicated
Commission established for that purpose. Thus, 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.
Further, it cannot be a static arrangement. It must be reviewed from
time to time so as not to violate the principle of overbreadth of such
reservation (which in itself is a relative concept and is dynamic). Besides,
it must be confined only to the extent it is proportionate and within the
quantitative limitation as is predicated by the Constitution Bench of this
Court.
9. Notably, the Constitution Bench adverted to the fact that
provisions of most of the State legislations may require a relook, but left
the question regarding validity thereof open with liberty to raise specific
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challenges thereto by pointing out flaws in the identification of the
backward classes in reference to the empirical data. Further, the
Constitution Bench expressed a sanguine hope that the concerned States
ought to take a fresh look at policy making with regard to reservations in
local self-government in light of the said decision, whilst ensuring that
such a policy adheres to the upper ceiling including by modifying their
legislations - so as to reduce the quantum of the existing quotas in
favour of OBCs and make it realistic and measurable on objective
parameters.
10. Despite this declaration of law and general observations cum
directions issued to all the States on the subject matter, the legislature of
the State of Maharashtra did not take a relook at the existing provisions
which fell foul of the law declared by the Constitution Bench of this
Court. As a matter of fact, couple of writ petitions6 came to be filed in
the Bombay High Court in which solemn assurance was given on behalf
of the State of Maharashtra that necessary corrective measures in light
of the decision of this Court, will be taken in right earnest. The situation,
however, remained unchanged.
11. As a matter of fact, no material is forthcoming as to on what
basis the quantum of reservation for OBCs was fixed at 27 per cent,
when it was inserted by way of amendment in 1994. Indeed, when the
amendment was effected in 1994, there was no guideline in existence
regarding the modality of fixing the limits of reserved seats for OBCs as
noted in the decision of the Constitution Bench in K. Krishna Murthy
(supra). After that decision, however, it was imperative for the State to
set up a dedicated Commission to conduct contemporaneous rigorous
empirical inquiry into the nature and implications of backwardness and
on the basis of recommendations of that Commission take follow up
steps including to amend the existing statutory dispensation, such as to
amend Section 12(2)(c) of the 1961 Act. There is nothing on record that
such a dedicated Commission had been set up until now. On the other
hand, the stand taken by the State Government on affidavit, before this
Court, would reveal that requisite information for undertaking such
empirical inquiry has not been made available to it by the Union of India.
In light of that stand of the State Government, it is unfathomable as to
how the respondents can justify the notifications issued by the State
Election Commission to reserve seats for OBCs in the concerned local
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bodies in respect of which elections have been held in the year December
2019/January 2020, which notifications have been challenged by way of
present writ petitions. This Court had allowed the elections to proceed
subject to the outcome of the present writ petitions.
12. Be that as it may, it is indisputable that the triple test/conditions
required to be complied by the State before reserving seats in the local
bodies for OBCs has not been done so far. To wit, (1) 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; (2) 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 (3) 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. In a given
local body, the space for providing such reservation in favour of OBCs
may be available at the time of issuing election programme (notifications).
However, that could be notified only upon fulfilling the aforementioned
pre-conditions. Admittedly, the first step of establishing dedicated
Commission to undertake rigorous empirical inquiry itself remains a
mirage. To put it differently, it will not be open to respondents to justify
the reservation for OBCs without fulfilling the triple test, referred to
above.
13. As regards Section 12(2)(c) of the 1961 Act inserted in 1994,
the plain language does give an impression that uniform and rigid quantum
of 27 per cent of the total seats across the State need to be set apart by
way of reservation in favour of OBCs. In light of the dictum of the
Constitution Bench, such a rigid provision cannot be sustained much less
having uniform application to all the local bodies within the State. Instead,
contemporaneous empirical inquiry must be undertaken to identify the
quantum qua local body or local body specific.
14. In our opinion, the provision in the form of Section 12(2)(c)
can be saved by reading it down, to mean that reservation in favour of
OBCs in the concerned local bodies may be notified to the extent, that it
does not exceed 50 per cent of the total seats reserved in favour of SCs/
STs/OBCs taken together. In other words, the expression "shall be"
preceding 27 per cent occurring in Section 12(2)(c), be construed as
"may be" including to mean that reservation for OBCs may be up to 27
per cent but subject to the outer limit of 50 per cent aggregate in favour
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of SCs/STs/OBCs taken together, as enunciated by the Constitution
Bench of this Court. On such interpretation, Section 12(2)(c) can be
saved and at the same time, the law declared by the Constitution Bench
of this Court can be effectuated in its letter and spirit.
15. The argument of the respondent-State that the reservations in
favour of OBCs must be linked to population, is very wide and tenuous.
That plea if countenanced, will be in the teeth of the dictum of the
Constitution Bench of this Court wherein it has been noted and rejected.
The Court has expounded about the distinction in the matter of reservation
in favour of SCs and STs on the one hand, which is a "constitutional"
reservation linked to population unlike in the case of OBCs which is a
"statutory" dispensation. Therefore, the latter reservation for OBCs must
be proportionate in the context of nature and implications of backwardness
and in any case, is permissible only to the extent it does not exceed the
aggregate of 50 per cent of the total seats in the local bodies reserved
for SCs/STs/OBCs taken together.
16. Indeed, this Court had allowed the State Election Commission
to conduct elections on the basis of old dispensation in terms of orders
dated 28.08.2019, 07.11.2019 and 13.12.2019, by recording prima facie
view as noted in the order dated 18.12.2019. However, it was made
amply clear that the elections in respect of five districts (Nagpur, Washim,
Akola, Dhule and Nandurbar) were allowed to proceed subject to the
outcome of present writ petition(s) questioning the validity of Section
12(2)(c) of the 1961 Act.