Supreme Court’s March 2021 decision to quash reservation for Other Backward Classes (OBCs) in local civic bodies in Maharashtra, and terming it ‘statutory’, has shaken up the political circles in the State. The court ruled that total reservation for OBCs, SCs and STs should not cross the 50% ceiling.
Following the SC’s rejection of the review petition by Maharashtra government, the State issued an ordinance which, while keeping 27% reservation for OBCs, mandates that total reservation of SCs, STs and OBCs will not cross 50% mark.
However, the October 5 bye-elections in Akola, Washim, Dhule, Nandurbar and Nagpur zilla parishads and the very first election for Palghar zilla parishad will, for the first time since 1994, have no OBC reservation.
How did it all start?
In Maharashtra, OBCs include Denotified Tribes (Vimukta Jati), Nomadic Tribes, Other Backward Classes and Special Backward Category. The Mandal commission report relying on the last caste census 1931 had calculated the total OBC population at 52%, based on which 27% reservation to OBCs was extended.
With SCs and STs accounting for a combined 22.7% reservation, the apex court limited the total reservation with a 50% cap after the addition of OBC quota.
Maharashtra extended the 27% OBC reservation in local civic bodies in 1994. In 2018, Vikas Gawali, a former zilla parishad member from Washim district approached the Nagpur Bench of the Bombay High Court and sought a stay on the election process in Washim and Akola districts citing breach of the 50% cap. The court granted status quo and elections were delayed. Mr. Gawali approached the apex court which passed an interim order directing the State Election Commission to conduct the polls subject to the final order of the pending petition. Mr. Gawali again filed a petition against the interim order. Meanwhile, delayed polls in five zilla parishads and panchayat samitis were held in 2020.
Previous verdict referred
Mr. Gawali had referred to the 2010 Supreme Court verdict in the case of K. Krishnamurthy and others versus Union of India and others. Though a five-member Constitution Bench headed by the then Chief Justice K. Balakrishnan validated the 27% OBC reservation, the verdict said, “dedicated commissions need to be appointed to conduct a rigorous empirical inquiry into the nature and implications of backwardness”. It also observed that, “in the absence of updated empirical data, it is well nigh impossible for the Courts to decide whether the reservations in favour of OBC groups are proportionate are not”. The court also fixed the upper limit of reservation at 50%.
How did Supreme Court verdict in 2021 affect OBCs?
In March 2021, the apex court ruled in favour of Mr. Gawali. It said that the provision of Section 12 (2) (c) of Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961, giving 27% reservation to OBCs may be invoked only after complying conditions mentioned above.
According to Dr. Hari Narke, a scholar on OBC-related issues and former member of the State Backward Class Commission, the order was given under Article 142 of the Constitution and it affects not only Maharashtra but the entire country. It mandated following triple conditions of forming backward commission to decide on nature and implications of backwardness, finding empirical data to fix proportion in terms of population and not exceeding 50% reservation ceiling.
This verdict affected at least 56,000 OBC seats in 28,000 gram panchayats, 350 panchayat samitis, 367 municipal councils, 34 zilla parishads and 27 municipal corporations. “This is going to affect OBCs across the country. If any person approaches the court for his/her respective local body polls anywhere in the country, the verdict will have to be implemented,” said Dr. Narke. According to him, conducting OBC census and sharing data from 2011 census is the only way forward.
History of demand for OBC census in Maharashtra
The last census which recorded OBCs was held in 1931. World War II disrupted the exercise in 1941. Dr. Babasaheb Ambedkar had raised the demand of OBC Census in his 1946 book ‘Who were the Shudras?’ The First National Backward Class Commission (Kalelkar commission) in 1955 demanded an independent OBC census, which was echoed by the Mandal commission in 1980, repeated by the third NBCC in 1994.
Following the 2010 Supreme Court verdict, former Lok Sabha MP Samir Bhujbal of Nationalist Congress Party (NCP) demanded OBC census and received support from over 100 MPs across all parties. Based on that Socio-Economic Caste census 2011 was carried out over next three years. Claiming it has a number of inaccuracies, the central government last week refused to share the data with Maharashtra government leading to political storm. The affidavit from the Union Ministry of Social Justice and Empowerment has also said no to caste census in 2021, a demand raised aggressively by a number of parties, other than the ruling Bharatiya Janata Party (BJP).
What Maharashtra government did?
After the apex court rejected State’s review petition, the tripartite Maha Vikas Aghadi (MVA) government called for an all-party meeting to discuss the problem. It was decided to not conduct bypolls until the OBC reservation is restored. The Supreme Court however, ordered that no entity other than SEC can decide about polls and directed the latter to take action. Based on that, SEC has now called for bypolls on October 5. Elections will also be held in the newly formed Palghar zilla parishad. This will be for the first time since 1994 that no seats will be reserved for OBCs.
Sensing backlash, the Cabinet cleared an amendment in section 12 (2) (c) of Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 which said that “while keeping 27% OBC reservation, it will be ensured that total reservation of all including SC, ST and OBCs will not cross 50% limit”. Governor Bhagat Singh Koshyari has cleared the ordinance to that effect. The State government has also formed the State Backward Class Commission to collect the data as sought in the court order. With this the government hopes to continue OBC reservation in the upcoming zilla parishad and municipal corporation polls, touted as the mini-Assembly. The Ordinance however is yet to stand judicial scrutiny.
How did the political battle war ensue?
The main opposition in the State, the BJP, claimed that MVA government was negligent on OBC reservation issue while the government pointed fingers at BJP-led central government for not sharing the data with the State government. Following the affidavit of Union ministry, the State government has said that it now stands vindicated and BJP should be blamed for the OBC reservation mess.
Dr. Narke pointed out that former chief minister Devendra Fadnavis had sought empirical data from the Centre but it was denied. He has also countered the Centre’s claim of inaccuracies in the data saying the decision to not share it was taken by the Modi government in June 2018.
