new Delhi: The Allahabad High Court on Tuesday said the Uttar Pradesh government is on the ‘wrong side of the law’ and directed the State Election Commission to notify local municipal elections without providing reservation for Other Backward Classes (OBCs).
A bench of Justices Saurabh Lavania and DK Upadhyay struck down the state government’s notification dated December 5, 2022, that reserved four mayoral seats in the upcoming urban local body elections, saying the government’s order imposed a “triple test”. conditions have not been met. Supreme Court to determine the political backwardness of OBCs for the purpose of reserving seats for them in local municipal bodies.
The election of mayors of 17 municipal corporations, heads of 200 municipal corporations and heads of 546 town panchayats is likely to be held early next year.
The Tuesday HC court order came on a batch of petitions questioning the validity of the December 5 notification, claiming it violated the SC mandate to follow the triple test guide before reserving seats for OBCs. I went.
Under the triple test principle, the state government is required to set up a dedicated commission to ascertain the representation of OBCs in the local bodies within the state and then collect and collate the material/data to specify the proportion of reservation for them Is. This has to be done in the light of the recommendations of the Reservation Commission so that there is no overlap. However, the reservation cannot exceed 50 percent of the total seats reserved for SC/ST/OBC.
Since the collection of material to meet the triple test criteria is a “time-consuming and onerous task”, and the tenure of the municipalities will end on January 31, 2023, the High Court directed the State Election Panel to notify the local body elections immediately. ordered. “Thus, in order to strengthen the democratic character of governance of the society, it is necessary that elections are held at the earliest, which cannot wait,” the court said.
The court further said that while notifying the elections, the seats and offices of Speakers shall be notified as general and open category, except for the seats reserved for Scheduled Castes and Scheduled Tribes. However, the notification of the State Election Commission shall include reservation for women as per the constitutional provision, the court said.
Importantly, the court also accepted the petitioner’s request to include transgenders in the OBCs. It directed that once a dedicated commission is constituted to conduct an empirical study on the nature and implications of backwardness for providing OBC reservation in urban local bodies, the claim of transgenders would also be considered.
If a new elected body is not formed and the terms of the present one expire, the affairs of the civic agency will be administered by a three-member committee headed by the District Magistrate (DM), with either the Executive Officer or the Chief Executive Officer or Municipal Commissioner will be the member. The order states that the third member of the committee will be a district level officer nominated by the DM.
“However, the said committee will only discharge the day-to-day functions of the concerned municipal body and will not take any major policy decisions,” the court clarified.
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Against Constitutional Mandate and Supreme Court Judgment: Argument of the Petitioner
The primary allegation of the petitioners was that the December 5 notification not only acted “against the constitutional mandate” given in Article 243-T, but also disregarded the principles laid down in two judgments by the Supreme Court on OBC reservation. One of the two decisions regarding OBC reservation in urban local bodies in Maharashtra was given in 2021.
It was argued that the State cannot provide for OBC reservation unless it is preceded by an examination of the existence of backwardness, submitted by the petitioners. It was their contention that the phrase “backward classes of citizens” in Article 243-T does not convey the same meaning as “socially and economically backward classes” in Articles 15(4) and 15(5), or the phrase ” . Backward Classes of Citizens” occurs in Article 16(4) of the Constitution.
Article 243-T is an enabling provision in the Constitution which allows the State to make laws to provide for OBC reservation. Articles 15(4) and 15(5) enable the State to make special provision for any socially and educationally backward classes of citizens or Scheduled Castes and Scheduled Tribes and for their education in private institutions, whether in the State aided or unaided by except for minorities.
Article 16(4) states that the State shall not be prevented from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services.
According to the petitioners, the objective of the reservation policy contemplated in Articles 15(4) and 16(4) is to improve access to higher education and public employment, while there is a different one under Article 243-T, which aims at the representation of the disadvantaged. have to improve. Class of citizens in the political landscape.
It was argued that social, educational and economic backwardness cannot be clubbed with backwardness to provide for reservation in elections to urban self-government bodies for the purposes of Articles 15 and 16.
Further, no exercise was undertaken to collect sufficient material and documents to carry out investigations to identify the barriers faced by the backward classes in the realm of political representation. The petitioners contend that the UP government’s notification providing for reservation is not permissible in the absence of contemporary empirical data.
No dedicated commission was set up to collect such data and recommend the proportion of reservation in local bodies, as laid down by the Supreme Court in its judgments.
‘Just a draft order’: UP government’s defense
On its part, the State raised preliminary objection against the petitions, saying they were not maintainable as the December 5 notification was only a draft order. However, the argument that the petitions were premature was rejected by the court during a hearing on 12 December.
In defense of its order, the government argued that the state made exhaustive amendments to its municipal laws in 1994 as far as reservation to backward classes under Article 243-T was concerned. This was done after 73.third Amendment which added a new part in the constitution relating to Panchayats. The amendments defined backward classes as those listed in Schedule-I of the State Reservation Act, 1994.
Therefore, the State argued that unless the provisions in the amended municipal laws are challenged and struck down, reservation for OBCs in municipal bodies is to be provided for in accordance with these laws.
With regard to meeting the triple test condition, the state claimed that it had done so without exceeding the ceiling of 50 per cent laid down by the apex court in its judgement. Moreover, the reservation is proportionate to the total population of OBCs, argued the state.
The State further claimed that as per the April 2017 order, concurrent rigorous empiric test is being conducted across the State. Besides this, through another order issued in June this year, the state has directed all DMs to conduct a rapid survey of the population of backward class citizens in each ward of various municipal bodies.
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Can’t take advantage of own mistake: Court’s decision
In its 87-page judgement, the HC rejected the state’s explanation for setting aside the December 5 notification. It was noted that the state municipal laws did not make any distinction between reservation for SC/ST and OBC, which the court held was not in consonance with Article 243-T which provides for reservation of seats ” does not include “direct mandate” or the offices of Speakers in favor of OBCs.
The exercise to be carried out as per the 2017 state order was confined to head count only and not to ascertain representation of OBCs in local bodies, the court held.
The survey opined that “a very important factor is missed in determining the backwardness or disadvantageous position of a class or group of citizens who are inadequately represented in the municipal bodies in the State and what is left out is that That the government order does not provide for an inquiry into the political representation of backward class citizens in municipal bodies,” the court said.
Regarding the government’s move to amend municipal laws, the court noted that Schedule-I to the Reservation Act, 1994 enumerates castes that are to be treated as “backward classes” for providing reservation in state local body elections is assuming
In the opinion of the court, the survey under the 2017 order is being conducted to determine the population of persons belonging to the castes specified in Schedule-I of the Reservation Act, 1994. The test conditions as defined by Sc.
The HC further said that the Uttar Pradesh government was bound by the apex court’s mandate to revisit its policy with regard to reservation to be provided to OBCs in the context of elections to urban bodies. This involved amendment of existing statutory provisions. Therefore, the court said that the state should have made necessary changes in its laws related to OBC reservation.
Finding the State on the “wrong side of the law”, which was declared by the SC, the HC ultimately said: “A person who has done a wrong cannot take advantage of his own wrong and commit any lawful act”. cannot invoke the bar of any law to fail.”
(Editing by Anumeha Saxena)
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