Judgement Summary

VIKAS KISHANRAO GAWALI V STATE OF MAHARASHTRA ORS.

A.M. Khanwilkar, Indu Malhotra, Ajay Rastogi JJ.

The issue in the batch of writ petitions decided in the present case-

  1. Section 12(2)(c) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 is ultra vires the provisions of Articles 243­D and 243­T including Articles 14 and 16 of the Constitution of India.

[Students should remember the Art. 243D, 243T of the constitution]

2. The State Election Commission order for reservation of 50% seats in Zilla Parishad and Panchayat Samitis in certain districts

Judgment-

  1. The law issue in the matter revolved around, a constitutional bench judgment in K. Krishna Murthy (Dr.) & Ors. v. Union of India & Anr (2010) which held that no more than 50% seats will be provided in any local body by providing reservation SC/ST/OBC.  The State argued that, in exceptional circumstances, the reservation can be increased more than 50%.
  2. The provisions of the S. 12 of the Act say, the state can reserve 27% seats in the Zilla parishad and Panchayat Samitis. The following lines of the s. 12 of the Act is important:

“if in a Zilla Parishad comprising entirely the Scheduled Area, the seat to be reserved for the persons belonging to the backward class of citizens shall be 27 percent of the seats remaining (if any), after reservation of the seats for the scheduled tribes and scheduled castes and one half of the seats thus reserved will be reserved for woman. “The court then discussed the K. Krishna Murthy decision.

3. In the K. Krishna Murthy judgment, the court had framed the major issue as:

a. Whether 243 D (6) and 243 T (6) are constitutionally valid because they provide reservation in favor of backward classes occupying chairman position in the Panchayat Samitis and Municipalities respectively.

b. The court held that 243D and 243T are mere enabling provisions and you cannot strike it as violative of equality principle. The court also held that these provisions did not provide any guidance on how to identify the backward class and neither do they specify any principle for the quantum of such reservation. Instead, the court conferred the discretion on the state legislature to devise any principle to provide the reservation to backward classes.

c. The court also held that the identification of backward classes for the purpose of reservation is an executive function as per the mandate of art. 340 of the constitution. For that purpose, a dedicated commission needs to be appointed to conduct a rigorous empirical enquiry

d. It is the duty of the executive to review the reservation policies time to time

e. Without adequate data courts cannot decide whether the reservation in favor of the OBC is proportionate or not

f. The states can redraft their policies so that the beneficiaries under 243D and 243T need not be coterminous with the socially and educationally backward classes used for the purpose of Art. 15(4) or 16(4). It is so because the barrier for political participation is not same as that of barriers in other spheres of social status or educational backwardness.

g. There is no constitutional guidance on the reservation in local self-governments

h. So, any rule of reservation has to be proportionate and not more than 50% ceiling.

i. Union of India v Rakesh Kumar (2010) 4 SCC 50 says the quantum of reservation in political participation can exceed 50% for the STs in certain exceptional circumstances. But the Rakesh Kumar judgement was limited to the Scheduled area and the exceptional circumstances cannot be invoked for the reservation of backward classes in general areas. In general areas the vertical reservation for SC/ST/OBC should not exceed more than 50%. And to meet the vertical limit of 50% certain states may have to modify the quantum of reservation with the categories

4. Following Krishna Murthy judgment, the court held that, reservation for OBC is only a statutory dispensation compared to reservation for SC and ST which has constitutional mandate. States can provide reservation for the OBC, but the maximum ceiling should not be more than 50% in the concerned local bodies. In case the constitutional reservation for SC and ST consumes all the 50% or if go beyond 50% as in Scheduled Areas, there is no chance for giving reservation to OBC. Quantum of reservation to local bodies ought to be local body specific and must adhere to upper limit.

5. The states must fulfill certain prerequisites before giving reservation to OBC. The prerequisites are: –

a. Collect quantifiable data to determine the extent of backwardness of the OBC

b. Once the quantum of reservation is decided it needs to be reviewed regularly and if required changed accordingly

c. It must be within the quantitative limitation of upper ceiling (exception in Rakesh Kumar is allowed)

6. After Krishna Murthy judgment, the state of Maharastra should have constituted a commission to collect the quantifiable data but it had not done that

7. Three step procedure needs to be taken before determining the quantum of reservation for the OBC

a. To set up a dedicated commission to collect quantifiable data regarding the backwardness of the OBC in local bodies

b. To specify the proportion of reservation required to be provisioned for the local bodies in the light of the recommendation of the commission

c. Reservation to have an upper ceiling of 50% except for special circumstances

8. S. 12 of the Act of 1961 prescribed a rigid 27% for the OBC in local bodies without any quantifiable data. Such rigid provision is invalid as per the constitutional bench judgment in Krishan Murthy

9. State Election Commission providing for rigid 50% is also violative of the constitution bench judgment

Conclusion –

  1. S. 12 of the Act of 1961 is not ultra vires. It is an enabling provision. But it has to be read in view of the constitutional bench judgment in Krishna Murthy. The S. 12 of the Act of 1961 will come into force only when the conditions mentioned in the constitutional bench judgment is satisfied
  2. The word “Shall be” in the s. 12 should mean “may be”. It is a “may be” because it is incumbent upon the satisfying the criteria
  3. The notification of the state election was set aside a violative of the constitutional bench judgment
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