Thread by @lawbarandbench

The #SupremeCourt continues hearing the matter of reservation in Maharashtra local bodies election.
#Maharashtra govt had urged the SC to recall order renotifying 27% OBC seats as those of general category.

Sr Adv Vikas Singh: Your lordship's first judgment was 4/3/21. The point here was that the statute had provided for reservation so like the constitution bench judgment in K Krishnamurthy, you read down the statute saying it's only enabling

Singh: The question arose why provide reservation on backwardness when we are numerically large. Your lordship held that it is for service purpose.

SC: Your HC writ petition was for what relief?

Singh: Same thing.

SC: Was it withdrawn then?

Singh: Let me check.

Singh: Everything is transferred here (from Bom HC).

SC: Where is the prayer?

Singh: I don't have that paperbook. In the SLP writ petition starts at 84. Prayer is at 108.

SC:Let us see what is the prayer.

Singh:*reads order*
This order was modified in December saying that reserved seats should go to general category.

SC: The elections are over though?

Ajith Kadethankar, State Election Commission: Yes, my lord. Today is result day. 50% of results are out.

SC: Okay that is done.

Sr Adv Shekhar Naphade: We are asking your lordship to recall the order.
We have some data on the basis of which reservation can be sustained.

SC: What is the difficulty? Commission has not functioned?

Naphade: Let the commission give a report.

SC: The three judge bench says

SC: that Commission has to submit a report to the state. You present the data before commission. Let them submit mid report to state govt. What is the problem?

Napdhde: There are elections in March and my instructions are data is already before the commission. Your lordship may

Naphde: tell the commission to submit report in two weeks so we can act on March elections. Otherwise large section of the community might go unrepresented.

SC: 2010 the decision came, nothing was done. In 2021..

Napdhde: UOI had come up with some data in the census..

SC: We will not look at the data at this stage. Let the commission do it.

Naphde: Then your lordship may adjourn the matter.

SC: Haan, that is the right approach.

Sr Adv P Wilson:I am for the intervernor. We are saying OBC does not have adequate representation. We are happy with your lordship's decision to leave it to the commission.

Please look at 342A(3) this constitutional amendment-every state/UT may maintain for their own purposes

Wilson: a list of backward classes. This should be made available to the commission. Union will say List 1 Entry 69- census.
If your lordship clarifies this can be done by state

SC: Article 342A(3) refers to list of socially and educationally backward classes, not census.

SC: This will not be in conflict with list 1 at all.
Let's hear Me Solicitor.

ASG Natrajan: Mr Solicitor is in some other court, may I submit?

SC: Yes

ASG: We have issued notice to all states wrt Krishnamurthy and the rest. It will take some time. Election should be postponed

ASG: by two months.

SC: That you have to see. First appoint designated commission.
Census and this list are two different things.

Solicitor General Tushar Mehta: On the last occasion you expressed a desire that centre should intimate all states. Dispute is how to rotate

SGI: because for that each state will have to..

SC: The rotation is not our concern.
Three judge bench said that it can't be done without complying with the triple test

SGI: We need some time to comply with the triple test.

SC: Yes. Till then let elections happen without the

SC: reservation and after that we can give OBC reservation.

SGI: May I take your leave.

SC: Yes

ASG: Let this exercise be undertaken by various states. It needs some time.

SC: We will not say no election. Let it be as general seats only.

SC: After one year also, the commission hasn't been constituted.
What has been said by the three judge bench has to be rooted in the commission.

Anyone else? Mr Shyam Divan was there?

Sr Adv Giri: The triple test that your lordships had mandated was taken over by the ordinance

Giri: and therefore ordinance comes under attack.
I appear for Akhil Bhartiya OBC Sangathan.
The triple test evolved in Gawali has to be applied for all elections. That means data will have to be collected and, analysed by the commission.
There is no confusion regarding power to

Giri: drop the test. But triple test will have to be complied with.
Fair enough, this is what your lordships have said.
I'm submitting with regard to Maharashtra where commission has been constituted and some data is presented. Some elections have happened. If before the rest

Giri: of the elections, the data is collated, give them a chance to show.

SC: That will be the decision of the Election Commission. If it is permissible to extend life of the house by the statute they can.

Giri: My attempt was to assist in writ petition which has been withdrawn

Naphade: Mr Giri is supporting my application.

SC: Anyone else?

Sr Adv Shyam Divan: I'm for 8.1 which is Madhya Pradesh. There are three subsequent developments.
Your judgement came on 17/12/2021.

SC: We don't have all the papers in one place. We are in the residence.

Divan: Your lordship doesn't need to go to any paperbook. I wanted to inform you of the withdrawal of the ordinance.
We can take the case later as well.

SC: What is the effect of the ordinance?

Divan: The ordinance based on which election was announced has been withdrawn. The

Divan: exercise is now happening according to your lordship's directions.

ASG: Election Commission has cancelled the elections in MP. Fresh ordinance is announced.

SC: New ordinance doesn't abide by the triple test?

ASG: We'll do it.

Adv Parmeshwar: I'm 8.2. Will my lords take it up tomorrow?

Sr Adv Chitnis: This is not relating to the OBC matter. This is an individual issue.

SC: Is it OBC matter?

Parmeshwar: Yes, my lord.

SC: The order has been stayed by us. We'll take your matter separately.

SC: The matter came before this court on 6/12/21. It was directed that the election commission shall not proceed with the election program as notified providing reservation to OBC category as the triple test compliances were not in place.
The election commission was thus directed

SC: to keep the reservation about OBC as nullity.
Elections with 27% OBC reservation were ordered to be cancelled. EC has filed a compliance report- election program in respect of seats which were earlier notified as OBC were conducted as open seats as per this court's direction

SC: The results of those elections are to br notified by tomorrow.
The only issue now remains the validity of ordinance issued by Maharashtra on 23/9/21. In matter for which the matter needs to go further.

Maharashtra has asked this court to allow elections based on data

SC: available to the state about backward classes. The appropriate step would to be present this data before state appointed dedicated commission who can examine the correctness and if deem it appropriate make recommendation to the state based on which further steps can be taken

SC: by the state or SEC.
Mr Wilson pointed out in terms of amendment to 342A of the constitution, the state/UT is obliged to prepare a list of socially and educationally backward classes which can be acted upon for providing reservation including during local govt election.

SC: however, that list would be independent of the census activities undertaken by union govt under census act- List 1 entry 69.
The list to be prepared by state govt concerning socially and educationally backward classes in terms of A343A(3) would be independent of the census

SC: The information available to the state can be furnished to dedicated commission and take decisions about efficacy therof and make recommendations to state govt as maybe necessary.
This Obviously would not complete the triple test exercise which has to be completed (Gawli)

SC: before reservation of seats in local govt for OBC category.
The commission may submit the interim report to concerned authorities in two weeks to the state govt.
We will not be understood to have expressed any final opinion on correctness of data in the application

SC: It is the commission that has to decide.

Adv Shashank Ratnoo: There are already existing state lists.

SC: This observation must also govern different states who are to proceed for elections of local govt.

List on 8 February.

SC: Until the triple test is completely, these seats will be treated as open category seats.