New Delhi: There was quite a political fuss in BJP-ruled Madhya Pradesh last week when the Supreme Court on 10 May directed the State Election Commission (SEC) to notify local body polls without a quota for other backward classes (OBCs).
Several months ago, the court had issued a similar direction to the government of Maharashtra too on the same grounds: the “triple test” mandated to institute OBC quotas in local polls had not been carried out. The opposition parties in both states — BJP in Maharashtra and Congress in MP — used this to criticise the ruling state government.
Now, another political fracas in brewing. In an order this Wednesday, the Supreme Court modified its order for MP and allowed the implementation of OBC reservations for the state’s local body elections. What helped change the court’s mind was a second report from the MP government’s Backward Classes Commission.
However, OBC reservations for local body polls in Maharashtra still haven’t received the apex court’s nod since it did not comply with the triple test. The alleged ‘differential treatment’ has some Maharashtra leaders asking whether MP performed some sort of “miracle” to get the go-ahead.
What exactly is the triple test? And why did the Supreme Court modify its order for Madhya Pradesh and not for Maharashtra? ThePrint explains.
What is the triple test?
In March last year, the Supreme Court had laid down the triple test or conditions that state governments need to satisfy before they can notify quotas for OBCs in local body elections.
These triple conditions are:
(1) Setting up a dedicated commission to conduct “rigorous empirical inquiry into the nature and implications of the backwardness qua local bodies, within the state”.
(2) Making of recommendations by the commission on the number of seats to be reserved for OBCs “local body wise”.
(3) Ensuring that, cumulatively, seats reserved for SCs, STs and OBCs do not exceed 50 per cent.
This triple test, which has now become mandatory for all state governments to follow, was born out of the issue of OBC reservations in Maharashtra.
The judgment came on petitions challenging provisions of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 that allowed the state government to reserve 27 per cent of seats for OBCs in the zilla parishads and panchayat samitis concerned.
While the court upheld this provision, it read it down to mean that it can be invoked only when the triple conditions are satisfied before seats reserved for the OBC category are notified for the local bodies.
The triple test was a reiteration of a 2010 Constitution bench judgment, in which the court had placed the onus on the executive “to conduct a rigorous investigation into the patterns of backwardness that act as barriers to political participation”. It had said that “dedicated commissions need to be appointed to conduct a rigorous empirical inquiry into the nature and implications of backwardness”.
What happened in MP?
With regard to Madhya Pradesh, the petitions before the court pertain to the validity of certain legal provisions that authorised the state government to issue notifications on the number and extent of wards to be constituted in the local bodies concerned.
The pleas have alleged that these provisions usurp the powers and independence of the State Election Commission.
During the hearing on these pleas, the court noted that Madhya Pradesh has around 321 urban local bodies in which elections had not been held from 2019-20. Similarly, there were around 23,073 rural local bodies in which elections were pending.
The court’s 10 May order noted that the elections were stalled because the state had not been able to complete the triple test, and, therefore, the SEC wasn’t able to provide for OBC reservations.
The bench headed by Justice A.M. Khanwilkar further noted that the Constitution provides for a five-year term “and not longer” for local bodies. However, despite this mandate, more than 23,000 bodies were functioning without elected representatives for over two years. It then asserted that “this is bordering on breakdown of rule of law”.
The court also noted that the activity of delimitation or formation of wards was ongoing, but found that this cannot be a ground for the SEC to not discharge its functions.
It, therefore, passed an interim order directing the SEC to proceed with the elections in the local bodies, without waiting for the state government to comply with the triple test. It said that if the state government is not able to finish its triple-test exercise before an election programme is issued by the SEC, the OBC seats should also be notified as general category.
Why the court shifted stance on MP
The Backward Classes Commission constituted by the Madhya Pradesh government submitted a report to the court on 5 May. However, on 10 May, the court noted that this was just the “first step towards the triple-test obligation”, and the commission had not recommended the number of seats to be reserved for OBCs, after putting together empirical data and analysing it.
After this, the Madhya Pradesh government filed an application demanding a modification of the 10 May order. The court was told that the commission had prepared a second report on the basis of the apex court’s observations in the earlier order. It was also told that the delimitation exercise had also been completed and notified before 10 May.
Therefore, on Wednesday, the court permitted the Madhya Pradesh SEC to notify the election programme, keeping in mind the delimitation notifications, as well as the commission’s reports.
According to reports, the commission quantified the population of OBCs in the state at 48 per cent and permitted varying quotas for them across each municipal seat, extending to a maximum of 35 per cent.
Why it won’t change things in Maharashtra
As for Maharashtra, the state government had constituted a Backward Classes Commission in June last year.
However, without waiting for its report, the state issued an ordinance amending provisions in two legislations — the Maharashtra Village Panchayats Act and the Maharashtra Zilla Parishads and Panchayat Samitis Act. These amendments permitted a 27 per cent quota for OBCs in local bodies.
This quota was challenged in the Supreme Court again, which, on 6 December last year, stayed the elections to the 27 per cent OBC category seats in Maharashtra local bodies. In doing so, the court asserted that the state government had not followed the triple test laid down by it.
On 15 December, it directed the State Election Commission (SEC) to notify the election process in local bodies without further delay and to treat the OBC seats as general category.
Following this, in January this year, the court directed the Maharashtra government to submit data available with it to the commission.
But in March this year, the court rejected an interim report of the commission, which had recommended restoration of the 27 per cent quota for OBCs in local bodies.
The court noted that the report mentioned that it was prepared without any empirical study and research by the commission, and said that it cannot permit the SEC to act on its recommendations. It, however, left it to the commission to continue its exercise and submit its final report.
(Edited by Asavari Singh)