Patna High Court strikes down OBC, EBC quota in Bihar municipal body elections for violating Supreme Court guidelines

The Patna High Court on Tuesday struck down the reservation provided for Other Backward Class (OBC) and Extremely Backward Class (EBC) in Bihar State municipal body elections for being violative of the triple-test laid down by the Supreme Court to govern reservation [Sunil Kumar & Ors v State of Bihar & Ors]..A bench of Chief Justice Sanjay Karol and Justice S Kumar noted that the Bihar government and State Election Commission (SEC) failed to adhere to two of three tests requirements laid down by the Supreme Court while reserving seats in local bodies for OBC/EBC."Action of the Government as also the Election Commission in reserving the seats for the OBC/EBC category for election to all the municipal bodies in the State of Bihar, governed under the Bihar Municipal Act, 2007 (Act No. 11 of 2007), sans compliance of the dictum laid down by Hon'ble the Supreme Court in Sunil Kumar; K. Krishna Murthy; Vikas Kishanrao Gawali; Suresh Mahajan; Rahul Ramesh Wagh; Manmohan Nagar to be illegal," the Court held..The bench further asked the SEC to re-notify the seats reserved for the OBC as general category seats."Respondent No.4, namely The Secretary, State Election Commission, to carry out the elections only by immediately re-notifying the seats reserved for the OBC Category treating them as general category seats. Our direction, similar in nature, is based on the dictum of Hon’ble the Supreme Court," the Court directed..As a result, the elections to all the municipalities within the State of Bihar which were scheduled to be held on October 10 and 12, have been postponed..The Court was hearing a batch of pleas where petitioners wanted the elections to the Municipal Body i.e. Patna Nagar Nigam, to be conducted without providing reservation to the Backward Class Category, The plea claimed that the reservation was in breach of the three-fold test laid down by Supreme Court. As per the triple test laid out in Vikas Kishanrao Gawali judgment by the Supreme Court, the following conditions are required to be complied with by the State before reserving seats in local bodies for OBCs:- constituting a commission to study the nature and implications of backwardness with respect to claims for reservation in local bodies;- laying out the quantum of reservation in line with recommendations of the said commission; and- not breaching the 50 per cent cap on reservation.They had further averred that, in the absence of reservation, the seats should be left open for General Category. .With respect to first test that is, having a dedicated Commission to conduct an empirical inquiry into the nature and implication of backwardness in relation to local bodies, the High Court observed that the same was not done. "It is not the pleaded case of the State that the Government had ever entrusted any work to this Commission, undertaking the task of conducting an empirical inquiry into the nature and implication of political backwardness of the EBC, much less of OBC category for the purpose of the reservation to the election of municipalities, as mandated by K. Krishna Murthy or Vikas Kishanrao Gawali," the Court said. Hence, the act of providing reservation was vitiated by jurisdictional error since the requirement to establish a dedicated commission to gather empirical data was not complied with, the bench ruled. "We find the impugned actions to suffer from the vice of lack of jurisdictional error since imperativeness of the need to establish a dedicated Commission or empowering the existing bodies to undertake the task of empirical data collection and study thereof not to have been carried out," the judgment said. .With respect to second test regarding specification of the proportion of reservation required in the light of the recommendations of the Commission, the bench noted that the government failed to comply with this too."There is no statistical data on the Population of EBC(s) within the Local Bodies, nor is there any data relating to proportional representation of EBC in Local Self Government, particularly in the Municipalities, meeting the requirement of the triple test," the Court noted.Moreover, the government without collecting empirical data or conducting a study about the political backwardness, carried out the exercise of reserving seats purely based on population, and that too, perhaps for EBC category. The same cannot be the solitary basis for providing reservations, the Court made it clear..Regarding the third test on 50 percent cap on reservation, the Court noted that the same was not violated. However, bench took exception to the overlapping statues in place governing reservations in local body elections."The anomalous situation presented by the instant case may be as a result of a number of overlapping statutes, muddying the waters as opposed to facilitating smooth functioning of providing reservations under socioeconomic/ educational/ services/ elections, as the case may be," the judgment said. .The Court, therefore, asked the State to consider enacting a comprehensive legislation to deal with reservations in elections to local bodies, urban or rural, to bring the State seamlessly in line with the directions issued by the apex court..The Court also directed the Election Commission to review its functioning as an autonomous and independent body, not bound by the dictates of the Bihar government."Let a copy of this judgment be communicated to the Chief Secretary, Government of Bihar and the State Election Commissioner for taking all consequential action," the Court ordered..[Read Order]