The Supreme Court on Tuesday paved the way for Maharashtra local body polls, which were stalled for more than five years due to the OBC reservation issue, as it ordered the state election panel to notify it in four weeks.
A bench of Justices Surya Kant and N. Kotiswar Singh said, "The constitutional mandate of grassroots democracy through periodical election of the local bodies ought to be respected and ensured." The reservation it ordered should be provided to the other backward classes (OBC) in line with the law existing in the state before the 2022 report of the J. K. Banthia commission, which recommended a 27 percent quota for the category in local bodies.
The bench also fixed a timeline for concluding the local body polls and asked the State Election Commission (SEC) to conclude it in four months. The SEC was granted the liberty to allow the panel to seek more time in appropriate cases.
The outcome of Maharashtra local body elections would, however, be subject to decisions in pending petitions before the apex court, it added.
The bench noted the core issue in the batch of petitions filed in support of or against the report of the Banthia Commission was OBC reservation.
Other issues, it said, included setting up a dedicated commission to conduct empirical inquiry into the nature and implication of the backwardness for the purpose of reservation in the local body and whether such a reservation could extend the aggregate of 50 percent.
The top court said since the elected bodies had a prescribed term, no irreversible loss would be caused, and the appropriate amendment in the existing law for inclusion or exclusion of certain categories like issues could be considered in the course of time.
Senior advocate Indira Jaising, appearing for some petitioners, argued local bodies elections could not be held due to the pendency of the petitions in the apex court.
Justice Kant pointed out the court's status quo order led to the appointment of administrators in various local bodies, but there were complaints of bureaucrats taking policy decisions.
The bench asked Solicitor General Tushar Mehta, appearing for the state government, why elections couldn't be held.
"One thing we can't understand. Whatever the law you have enacted, right or wrong, we will decide. You have already identified certain classes of OBCs. Why can't elections be held as per that law without prejudice to the contentions of the petitioners?" Justice Kant asked.
Mehta agreed elections couldn't be stalled but said the law enacted by the assembly should not be disturbed at the moment.
"Is there any logic? Today bureaucrats are occupying all the municipal corporations and panchayats and taking major policy decisions. Because of all this litigation, a complete democratic process has been stalled. Officers have no accountability. Why not hold the elections as per the data that existed prior to the 2022 report?" the judge asked Mehta.
Jaising said 34,000 seats meant for OBCs were de-reserved.
On August 22, 2022, the top court directed the SEC and the Maharashtra government to maintain the status quo with regard to the poll process to the local bodies in the state.
The top court passed the order on a plea of the Maharashtra government seeking a recall of the apex court order by which it directed the SEC not to re-notify the poll process to 367 local bodies, where it has already begun, in order to provide reservation to OBCs.
The state government came out with an ordinance providing 27 percent reservation for the OBC in local body polls.
The government then moved the top court seeking a recall or modification of its order.
The top court on July 28, 2022, warned the state poll panel of contempt action if it re-notified the election process to such local bodies.
The apex court quashed the SEC notification to provide 27 percent quotas for OBCs in local bodies in 2021, and in December of the same year, it ruled reservation for OBCs in local bodies was not to be allowed unless the government fulfilled the triple test laid down in the top court's 2010 order.
The top court ruled the OBC seats would be re-notified as general category seats until then.
The triple test required the state government to set up a dedicated commission to gather data on the backwardness of OBCs in every local body, to specify the proportion of reservation in each local body in light of the commission’s recommendations, and to ensure such reservation did not exceed 50 percent of the total seats reserved for SC/ST/OBC together.
Ninety-two municipal councils and four nagar panchayats figured in the list of 367 local bodies where the election process had already been set in motion at the time when the status quo was passed.
There cannot be reservations for these 367 local bodies, the court said.
