Can’t ask Centre to reveal data it terms ‘unreliable’: SC to Maharashtra

The state had sought the data to provide reservation for OBCs in the forthcoming local body elections.

But the bench also comprising Justice C T Ravikumar said “the fact that Maharashtra has to adhere to triple test requirement before implementing the reservation (for OBC’s) does not mean centre can be directed to share such data which is unusable as per union”.

The Supreme Court had on December 6 had stayed the elections to 27 per cent seats reserved for OBCs in the local body polls stating that the decision to earmark the quota was done without following the mandatory triple-test laid down by it in past judgments. The triple test comprises the following: (1) setting up a Commission to conduct rigorous empirical inquiry into the nature and implications of the backwardness qua local bodies, within the State; (2) specifying 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) ensure that such reservation shall not exceed aggregate of 50 per cent of the total seats reserved in favour of SCs/STs/OBCs taken together.

Responding to the state’s petition, the Centre had said in an affidavit that SECC 2021 was not an OBC survey and pointed to “technical flaws” in the collection of the data. It said that the exercise had thrown up 46 lakh different castes and added that “the total numbers cannot be exponentially high to this extent”. The Centre said that an analysis of the data showed “that the caste enumeration…was fraught with mistakes and inaccuracies” and “is not reliable…”.

On Wednesday, Solicitor General Tushar Mehta, appearing for the Centre, said there was no objection to OBC reservation but the state had not done anything despite being put on notice as back as 2019.

He said that the 2011 data will mislead the census commission due to its inherent flaws. The state, he added, could have appointed a commission on its own to identify the number of OBCs and their status of political backwardness or political under representation.

Responding to the contention that the state had not done anything on its own, Senior Advocate Shekhar Naphade, appearing for Maharashtra, said it was in view of demands from various quarters that the Union cabinet decided to conduct SECC 2011.

He said that though there is nothing in the Census Act or Rules to that effect, the very concept of census must also include the caste census.

Mehta said that Article 243(D) of the Constitution provides reservation proportion to census figures for SC and ST and that the SECC was not under the Act but as a one time measure by executive decision by the Ministry of Social Justice and Empowerment.

The bench then queried “how can we proceed without knowing the executive action has a force of law or not?”. It pointed out that “something done in principle does not become law”.

“How can we issue mandamus against something which is not there in law. We cannot go ahead with this petition then? We are dealing with public representatives being elected…We are not going to be party to this decision which will create only more confusion”, said the bench.

Naphade contended that the centre saying that 2011 data is riddled with errors is them being judge in their own cause

But the bench responded that he had to apply under RTI. “How can we look into this at this stage here?”

Dismissing the plea, it told the counsel “how can you decide the errors? You (Maharashtra) have not done any enumeration. We are going to area which is not permissible. We cannot take this Writ petition forward”.

Rejecting demands for a caste census in 2011, the centre in its affidavit had also said that “a caste-wise enumeration in the Census has been given up as a matter of policy from 1951 onwards and thus castes other than SC’s and ST’s have not been enumerated in any of the Census since 1951 till today”.

It added that “since Castes/SEBCs/BCs/OBCs have become an integral part of politics, motivated returns through organised and surreptitious means cannot be ruled out” and that “such motivated returns can seriously influence the Census results and even put the Census process in jeopardy”.