New Delhi: The Allahabad High Court Tuesday said that 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 the Other Backward Classes (OBCs).
A bench of justices Saurabh Lavania and D.K. Upadhyaya quashed the 5 December, 2022, state government notification that reserved four mayor seats in the upcoming Urban Local Body Elections and held that the government order did not fulfil the “triple test” conditions laid down by the Supreme Court to determine the political backwardness of OBCs for the purpose of reserving seats for them in local municipal bodies.
The municipal elections to choose mayors of 17 municipal corporations, heads of 200 Municipal Corporations, and 546 Nagar Panchayats are likely to be held early next year.
The Tuesday HC court order came on a batch of petitions questioning the validity of the 5 December notification, claiming the order flouted the SC mandate to follow triple test guide before reserving seats for OBCs.
Under the triple test principle, a state government is required to set-up a dedicated commission to collect and collate material/data to ascertain the representation of OBCs in local bodies within the state and then specify the proportion of reservation for them. This reservation has to be done in the light of recommendations of the Commission so as not to fall foul of overbreadth. However, the reservation cannot exceed an aggregate of 50 per cent of the total seats reserved in favour of Scheduled Castes/Scheduled Tribes/OBCs.
Since collection of material to satisfy the triple test criteria is a “time-consuming and humongous task”, and the term of municipalities shall end on 31 January, 2023, the HC ordered the state poll panel to notify the local body elections immediately. “Thus, to fortify the democratic character of governance of society, it is essential that the elections are held at the earliest which cannot wait,” the court observed.
While notifying the elections, the seats and offices of chairpersons, except those to be reserved for SCs and STs, shall be notified as for general and open category, the court further said. However, the state election commission notification shall include reservation for women in terms of the constitutional provision, the court said.
Importantly, the court also accepted the petitioner’s request for inclusion of transgenders among the OBCs. It directed that once a dedicated commission is constituted for conducting an empirical study on the nature and implication of backwardness to provide OBCs reservation in urban local bodies, the claim of transgenders shall also be considered.
In case a new elected body is not formed and the terms of the current one comes to an end, then the affairs of the civic agency shall be conducted by a three-member committee to be headed by the district magistrate (DM), of which either the executive officer or chief executive officer or the municipal commissioner shall be a member. The third member of the committee shall be a district level officer to be nominated by the DM, the order said.
“However, the said Committee shall discharge only day-to-day functions of the Municipal Body concerned and shall not take any major policy decision,” clarified the court.
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Against Constitutional mandate & SC verdict: Petitioner’s argument
The primary allegation of the petitioners was that the 5 December notification acted “not only 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 rulings was delivered in 2021 in connection with OBC reservations in urban local bodies in Maharashtra.
The state, it was argued, cannot provide for OBC reservation unless it is preceded by an investigation into the existence of backwardness, the petitioners had submitted. It was their contention that the phrase “backward class of citizens” in Article 243-T does not convey the same meaning as the phrase “socially and economically backward class” in Articles 15 (4) and 15 (5), or the phrase “backward class of citizens” occurring in Article 16 (4) of the Constitution.
Article 243-T is an enabling provision in the Constitution that permits the State to frame law for providing OBC reservation. Articles 15 (4) and 15 (5) enables the State to make special provision for advancement of any socially and educationally backward classes of citizens or for SCs and STs and also for their education in private institutions, whether aided or unaided by the State, except minority ones.
Article 16 (4) says the State shall not be prevented from making any provision for 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 reservation policy contemplated in Articles 15 (4) and 16 (4) aims to improve access to higher education and public employment, whereas the one under Article 243-T is distinct, with the objective to improve representation of the disadvantaged class of citizens in the political landscape.
It was argued that social, educational and economic backwardness for Articles 15 and 16 cannot be equated with backwardness to be taken into account for providing reservation in the elections to urban self-government bodies.
Moreover, no exercise was undertaken to collate adequate material and documents for conducting an investigation to identify the barriers faced by backward classes in the realm of political representation. In the absence of contemporaneous empirical data the UP government notification that provides for reservation is impermissible, the petitioners said.
There was no dedicated commission constituted to gather such data and further recommend the proportion of reservation in local bodies, as was dictated by the Supreme Court in its judgments.
‘Only a draft order’: UP government’s defence
On its part, the State raised a preliminary objection against the petitions, saying they were not maintainable as the 5 December notification is only a draft order. However, the argument that petitions were premature was dismissed by court during one of the hearings on 12 December.
In defence of its order, the government argued that so far as reservation to backward classes is concerned under Article 243-T, the state brought exhaustive amendments in its municipal laws in 1994. This was done after the 73rd amendment that added a new part in the Constitution relating to panchayats. The amendments defined backward class to mean backward classes enlisted in Schedule-1 of the Reservation Act, 1994 of the state.
The state, therefore, argued that unless the provisions in the amended municipal laws are challenged and struck down, reservation for OBCs is to be provided in the municipal bodies as per these legislations.
With regard to fulfilment of the triple test condition, the state claimed it had done so by not exceeding the maximum ceiling of 50 per cent fixed by the top court in its judgment. Also, the reservation is in proportion to the total population of OBCs, the state argued.
The state further claimed that as per an April 2017 order, contemporaneous rigorous empirical inquiry is being conducted across the State. Moreover, through another order issued in June this year the state has directed all DMs to conduct a rapid survey to determine the population of the backward class of citizens in every ward of different municipal bodies.
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Can’t take advantage of own wrong: Court’s verdict
In its 87-page verdict, the HC dismissed the state’s explanation to set aside the 5 December notification. It noted that the state municipal laws did not make any distinction in reservation for SC/ST and OBCs, which the court held was not in line with Article 243-T that does not contain a “straight away mandate” for providing reservation of seats or offices of the chairpersons in favor of OBCs.
The exercise intended to be undertaken as per the 2017 state order was confined to counting of heads alone and not to ascertain representation of OBCs in local bodies, held the court.
The survey contemplated “misses a very crucial factor for determination of backwardness or disadvantageous situation concerning a class or group of citizens who are inadequately represented in the Municipal Bodies in the State and what is missed is that the Government Order does not provide for inquiry into with of political representation of backward class of citizens in the Municipal Bodies,” the court said.
As for the government’s move to amend the municipal laws, the court said Schedule-1 in the Reservation Act, 1994, enumerates castes whom the state is treating as “backward class” for providing reservation in local body elections.
In the court’s opinion, the survey under the 2017 order is being carried out to determine the population of persons belonging to castes specified in Schedule-1 of the Reservation Act 1994. This, it held, does not amount to fulfilling the requirement of the triple test condition defined by the SC.
The HC further held that the Uttar Pradesh government was obliged by the mandate of the top court to have a re-look at its policy regarding reservations to be made available to OBCs in the context of elections to urban bodies. This included amending the existing statutory provisions. Therefore, the court said the state should have carried out the necessary changes in its laws related to OBC reservation.
Finding the state on the “wrong side of the law” that was declared by the SC, the HC finally said: “A person having done a wrong cannot take advantage of its own wrong and plead bar of any law to frustrate any lawful act.”
(Edited by Anumeha Saxena)
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