RESERVATION NOT TO BE EXTENDED BEYOND THE FIFTY PER CENT MARK

Reservation is a part of the basic structure of the Indian Constitution covered under Article 15(4) of the same. It allows the state to make any special provision for the advancement of any socially and educationally backward classes of citizens or the Scheduled Castes (SC) and the Scheduled Tribes (ST).

In the present case of Vikas Kishanrao Gawali v. State of Maharashtra, before the Bench, comprising of Justices AM Khanwilkar, Indu Malhotra, and Ajay Rastogi, the judges narrowed down the interpretation of Section 12(2)(c) of Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961. The confusion in the understanding of the above-mentioned section arose after the Constitutional Bench’s judgment in K Krishna Murthy (Dr.) & Ors. v. Union of India & Anr.

The petitioners in the present matter in their writ petition challenged the validity of notifications which provided reservation for SC/ST/OBCs exceeding 50% in Zilla Parishadand Panchayat Samitis of Bhandara, Nagpur, Akola, and Washim Districts.

The petitioners relying on the decision of the ConstitutionalBench argued that the respondent (State of Maharashtra) cannot reserve seats that are more than 50% aggregate. The respondent stated that it was permissible to reserve seats for OBCs to the extent mentioned in the 1961 Act and that they could exceed that limit as well in exceptional situations.

The court ruled in favour of the petitioners by stating that reservation for SC/ST/OBCs in respect to the vertical reservation cannot exceed 50% aggregate. The bench further read down the provision in Section 12(2)(c). They mentioned that “shall be” in the section must be interpreted as “maybe” and that reservation of OBCs may be up to 27%, however, the outer limit is 50% aggregate as enunciated by the Constitutional Bench. They added that through this interpretation, the statutory section and the law declared by the Constitutional Bench will be harmoniously effective in its letter and spirit.

To add to this the court also observed that the three conditions are to be fulfilled for the seats to be reserved by the state in the local bodies for OBCs.

Following are the tests:-

• Firstly, a commission has to be set up to conduct an inquiry regarding the nature and implications of the backwardness of the local bodies in that state.• Secondly, the proportion of reservation required by each local body has to be specified per the recommendation of the commission to avoid foul play.• Lastly, the seats reserved for SC/ST/OBC shall not exceed 50% aggregate.

In the present case, the bench consequently revoked the election of candidates against reserved OBC seats which were held in December 2019 and January 2020 stating that it does not exist in the eyes of law thereby vacating the seats and ordering for fresh elections in the five districts of Maharashtra.

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