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The Supreme Court Thursday rejected the Telangana Government’s appeal challenging the state High Court order staying the decision to hike the reservation for Other Backward Classes (OBCs) in local body elections to 42 per cent, taking the total quota above 50 per cent.
A bench of Justices Vikram Nath and Sandeep Mehta said the elections can go on and left it to the Telangana High Court to decide the issue on merits.
On October 9, the HC ordered a six-week interim stay on the notification (Government Order MS 9) that enhanced the Other Backward Classes reservation in local bodies from 25 per cent to 42 per cent.
The Telangana Government’s order came on September 26, based on which the state election commission issued the notification and schedule for the local body polls, to be held in five phases between October and November.
Before the Telangana High Court, the petitioners pointed out that with the OBC reservation increasing from the present 25 per cent to 42 per cent, the overall reservation in the state will go up to 67 per cent, exceeding the 50 per cent ceiling on vertical reservations fixed by the SC in Indra Sawhney and K Krishna Murthy cases.
The High Court also noted that the Bill lacked the Governor’s assent and questioned the urgency of issuing it.
On Thursday, appearing for the Telangana Government, Senior Advocate A M Singhvi said the SC had not fixed a 50 per cent upper limit in the Indira Sawhney case.
Senior Advocate Gopal Sankaranarayanan pointed out that the SC had, in its 2017 decision in K Krishna Murthy (Dr) & Ors vs Union of India, held that “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,” the top court said then.
A similar view was also taken in the 2021 ruling in Vikas Krishna Gawali vs State of Maharashtra, he said.
Sankaranarayanan submitted that the SC had, in earlier judgments, also said that the triple tests ought to be fulfilled before allowing reservations in local self-government bodies. He added that in the case of Maharashtra and Madhya Pradesh, the top court had said that the total quota for local body polls should not exceed 50 per cent.
To Justice Nath’s query as to why the state did not bring out the order increasing the quota before the elections were notified, Singhvi said the Telangana Governor had kept the Bill pending without giving assent to it. He also said it had finally become law by virtue of deemed assent, as laid down by the SC in its judgment in the case of the Tamil Nadu Governor delaying assent to Bills.
Singhvi added that the triple tests were satisfied, and pointed out that Telangana conducted a socio-economic survey.
Justice Nath referred to the Krishna Murthy case and said that, under it, the exception applies only to STs. Justice Mehta cited the Gawali judgement, but Singhvi said the 50 per cent is not an inflexible rule and can be breached if there is empirical data.
