SC stays Allahabad HC direction to hold UP civic polls without OBC quota

Hearing the state’s appeal against the High Court order, a bench of Chief Justice of India D Y Chandrachud and Justice P S Narasimha took on record the submission of Solicitor General Tushar Mehta that efforts will be made to ensure that the UP State Local Bodies Dedicated Backward Classes Commission, set up to complete the necessary exercise to meet the triple test, completes its task in three months.

The top court said the High Court direction “which mandates the holding of elections to local bodies in Uttar Pradesh without reserving seats for Backward Classes of citizens will result in a violation of the constitutional and statutory requirements of reservation for the OBCs”.

“Democratisation of municipalities under Article 243T and the duty to provide representation are not at competing values. Prima facie, the High Court is not correct in prioritising one over the other and directing the holding of elections without the provision of representation for the Backward Classes. Democratising the municipalities and true representation in the composition of the municipalities under Article 243T are both constitutional mandates. When a constitutional court is called upon to review the decisions of the State in this context, it must ensure that both these values are given full effect so that truly representative and vibrant local bodies contemplated under Part IXA of the Constitution are realised,” it said.

Following the High Court order, the Uttar Pradesh government had appointed a five-member commission, headed by Justice Ram Avtar Singh (retd), to go into the entire gamut of issues for providing reservation to OBCs in these elections.

“The SG submits that though the tenure of the newly appointed commission is six months, an effort would be made to ensure that the exercise would be completed as expeditiously as possible, on or before March 31, 2023,” it said in its order.

Consequently, the elections will now be held only after the commission completes its task.

However, noting that the term of some of the urban local bodies has already expired while that of others will expire by the end of this month, the bench in keeping with the High Court’s directions, allowed the state government to delegate financial powers to a three-member administrative body headed by the District Magistrate which will run these bodies in the meanwhile.

“For the purpose of ensuring that the administrative work of the local bodies is not hampered, the government would be at liberty to issue a notification for the delegation or the case may be discharge its financial powers….”, the top court said, adding that this, however, will be “subject to the caveat that no major policy decisions shall be taken by the administrative authority”.

The triple test requires the state (1) to set up a commission to conduct 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.

Taking up the matter for hearing, the Supreme Court bench said that if the polls are held without OBC reservation, one segment will remain unrepresented.

The court also expressed concern over the constitutional vacuum that would ensue if the polls are not conducted on time before the expiry of the term of the present local bodies, and asked if the exercise can be completed in a month or so and a preliminary report given.

Mehta pointed out that the High Court had said in its order that “in case the term of municipal body comes to an end, till the formation of the elected body, the affairs of such municipal body shall be conducted by a three-member committee headed by the District Magistrate concerned, of which the executive officer/chief executive officer/municipal commissioner shall be a member. The third member shall be a district level officer to be nominated by the District Magistrate”.

He added that this arrangement can continue while the Commission carries out the exercise of determining political backwardness.