Maharashtra local body polls: OBC quota should not cross 50% mark in elections yet to be notified, says SC

Singh said that elections to 246 Municipal Councils and 42 Nagar Panchayats are scheduled to be held on December 2 and that 57 of the total 288 local bodies have more than 50 per cent reservation. He added that the poll body is yet to notify elections to Zila Parishads, Municipal Corporations, and Panchayat Samitis.

The court also asked the Commission’s counsel to submit the list of the 57 seats where reservation exceeds 50 per cent.

Stalled for years
The last local body polls were held in 2016-2017 due to a dispute over OBC reservation. In August 2022, the Supreme Court ordered that the status quo be maintained in the matter.

The Jayant Kumar Banthia Commission, set up by the Maharashtra government in March 2022 to examine the question of OBC reservation in local bodies, recommended 27 per cent representation for OBCs within the total 50 per cent reservation ceiling.

With the report under challenge, the Supreme Court had said that the polls will be subject to the outcome of the pending petitions.

On May 6, the Supreme Court ordered the holding of local body elections with OBC reservation set to the percentage that existed before the submission of the Banthia Commission report in July 2022.

Hearing it again last week, the Supreme Court bench verbally said that authorities appear to have misconstrued its order to mean that reservations can exceed 50 per cent.

‘A workable arrangement’
On Tuesday, the Supreme Court said, “Right now, we are not expressing anything on merit. This is a workable arrangement to ensure that the institution of democracy at the grassroots at least revived. Because at the time we passed the earlier order, our concern was no elections are held since 2018. Today, in this fight for 50-60 per cent, look at what is happening? People are not getting any representation. And all these municipalities are being looked after by bureaucrats. We will allow the elections to be held. We are only trying to iron out the creases. Something as in interim measure, with the support of all of you takes place…In January or February, we will decide the issue finally. If you find some grey area here or there, we do not mind constituting a larger bench.”

Solicitor General Tushar Mehta said that it still needed to be determined as to which local bodies the problem would arise and urged the court to give some more time.

To a request by a counsel that the court should direct the 50 per cent ceiling set by a constitutional court should not be crossed, the CJI said, “Today we are not expressing anything. Let us see”.

Senior Advocate Vikas Singh, appearing for petitioners, opposed any breach of the 50 per cent ceiling and said that for a long time now, the state had only been seeking time.

The CJI said the petitioners need not worry. “Ultimately, suppose an election is held, and we find that the election is contrary to the SC judgement, it can be (set aside).” He added that the court can always hold what is not constitutionally permissible bad in law.

Singh said it would be a waste of public money to allow the process to go on and then undo it.

Opposing any stay of the elections, senior advocate Indira Jaising pointed out that the court had followed such an approach even earlier and added that the government notification says that it will be subject to the outcome of the proceedings pending before the Supreme Court.

Senior Advocate Shekhar Naphde said the problem is mostly in tribal districts.

Jaising said that if the argument of those opposing the 50 per cent breach is accepted, “the consequence is OBCs will be completely knocked out because Maharashtra has a heavy population of tribals in the scheduled areas. If you add that with the SCs, that will complete 50 per cent”.

The CJI said, “That cannot be the intention because how can there be democracy by mass exclusion.”

Jaising said what has happened is the Banthia Commission has “knocked out OBC reservation compared to the previous election by a substantial 50-60 per cent. So our representation in the state has gone down.” She added, “The real problem is that there is no caste census after 1931. This is why the Government of India has announced that they are going to do a caste census precisely to ascertain the percentage of OBCs in the population.”

Justice Kant, however, said, “Whatever we do, we should not divide society on caste lines.”

Senior advocate Shekhar Naphde said, “The problem is that there are two conflicting principles. The Constitution bench of this court said that reservations should be in proportion to the population in the constituency. Then there is a rider of 50 per cent. But in some areas, 99 per cent is tribal population. What do we do?”

The court will hear the matter again on Friday.