Even though the High Court of Bombay refused to quash the notification reserving wards for OBCs for the August 10 panchayat polls, the election is likely to be held under a cloud — doubtful reservation process.
This is because the court did not mince words when it stated, “We think the petitioners have made out a prima facie case about non-compliance with the requirement of the contemporaneous rigorous empirical inquiry into the nature and backwardness of local bodies by an independent and dedicated commission”.
The High Court clubbed several petitions which sought quashing of the July 13 notification reserving seats for OBCs in panchayats of certain villages.
While considering the triple test mandated by the Supreme Court for reservation of seats for OBC, the High Court noted that the second and third conditions were complied with, but the first condition — rigorous empirical inquiry into the nature of backwardness and implications, had not been adhered to.
However, the High Court, while asserting the supremacy of Article 243-O of the Constitution, which essentially barred courts from interfering in the panchayat electoral process, stated that interim relief cannot be granted merely because the petitioners may have succeeded in making a prima facie case about non-compliance with one of the tests concerning reservation for OBCs.
Justices R N Laddha and M S Sonak relied on a Supreme Court division bench order which held that an imminent election process should generally not be derailed or stalled.
On the claim of the OBC Commission that the first condition of the triple test was complied with, the court noted that the exercise is more mathematical than the rigorous empirical inquiry mandated by the Supreme Court.
The judgement also noted that the Supreme Court had rejected reservations on the basis of population and insisted that a rigorous study of backwardness and its implications was essential, and added that this position finds no mention in the OBC report.
In this regard, counsel for State Election Commission told the court that the SEC had satisfied itself with compliance of the second and third tests. However, regards the first test it had gone by the letter and assurance from the Director of Panchayats that the OBC Commission had conducted the rigorous inquiry.
The order further notes that even the DoP did not take responsibility for compliance but went by the assurance of the OBC Commission that the same was undertaken.
The Justices cast several doubts on the speed with which a rigorous empirical inquiry was undertaken and wondered if such an exercise was possible in 4 to 5 days.
The order stated that the State Government made the ward-wise data on OBCs available to the commission on June 29 after which the Commission began its rigorous inquiry, and on 5 July produced a report for the SEC. However, the Commission counsel refused to respond to the court’s query about what the OBC Commission understood by “contemporaneous rigorous empirical Inquiry”.
The High Court also found it “rather strange” that the SEC entertained applications of a disgruntled person simply because the government forwards the same with a request to revisit the reservations.
After the reservations were announced, the government submitted applications from nine village panchayats and requested the SEC to consider them. Accordingly, the SEC made changes to the reservation list.
The courted noted that the sacrosanctity of the reservation list appears to have been sacrificed by the SEC by considering the requests from “disgruntled persons”. “At least, prima facie, we think this was most improper and, to a certain extent, reflects upon the functioning of the SEC and the government”.