With the Election Commission of India announcing elections to urban local bodies in Bihar on December 18 and 28, the BJP has hinted that the polls may be caught up in a legal wrangle in the backdrop of the Supreme Court on November 28 saying that the state government’s Extremely Backward Classes (EBC) Commission cannot be notified as a ‘dedicated commission’ as per the apex court’s ‘triple test’ guidelines.
“It is not a political question but a legal one. When the Supreme Court has stayed the EBC commission set up by the state government, what was the urgency for the state government to send the commission’s report to the EC, which announced poll dates,” BJP Rajya Sabha MP and former Bihar deputy chief minister Sushil Kumar Modi asked. “In any case, why was the report of the commission not made public? While there was a mandate to study entire OBCs, how can an EBC commission do so?”
Rahul Shyam Bhandari, the advocate of petitioner Sunil Kumar, who had moved the Supreme Court, said the November 28 Supreme Court order clearly says that the state government’s commission was not a dedicated commission. “The EC announcing Bihar local bodies’ polls could amount to contempt of court as the state government had not set up an independent dedicated commission to decide rightful beneficiaries of political reservation,” Bhandari added. “We will soon pray for cancellation of urban local bodies’ polls in Bihar.”
Bihar finance minister and senior JD (U) leader Vijay Kumar Choudhary, however, said, “BJP is over-reacting because reservation for EBCs is retained by the new commission report.”
In early October, elections to the urban local bodies in Bihar that were due to be held from October 10 were postponed after a Patna High Court verdict that said the state government had “failed” in meeting the ‘triple test’ criteria laid down by the Supreme Court in 2021 for reserving seats for Other Backward Classes (OBCs) and Extremely Backward Classes (EBCs) in urban and municipal local body polls. The ‘triple test’ meant setting up a dedicated commission to collect quantifiable data to determine the backwardness of OBCs in local bodies; specifying the proportion of reservation required in light of the recommendation of the commission; and imposing a reservation ceiling of 50 per cent.
There are 224 municipalities, 17 municipal corporations, 70 municipal councils and 137 Nagar panchayats in Bihar.
Bhandari said that the state government had declared its existing Extremely Backward Commission as a ‘dedicated commission’ but there should have been an independent dedicated commission that should have taken into account the entire OBC category, and not just EBC, which is a subset of OBC.
In a November 28 order (uploaded on November 29), a Supreme Court division bench of Justice Surya Kant and Justice J K Maheshwari said in a response to a special leave petition by Sunil Kumar: “Liberty is granted to the petitioner to serve the respondents through dasti process. Meanwhile, the ‘Economically Backward Class Commission’ be not notified as a ‘Dedicated Commission’.”
Bhandari, however, sought a correction, seeking that the term ‘Economically Backward Commission’ be replaced with ‘Extremely Backward Commission’ and this change was accepted by the court, the advocate said.