In India, social justice is an issue on which Congress and its allies never walk the talk. There exists a clear lack of coherence between their promises regarding social justice and the sincerity of actions undertaken to meet these promises. This lack of sincerity gets exposed more so when it comes to ensuring social justice to hitherto backward communities, namely OBCs. One such recent instance of Congress and its allies, namely Shiv Sena and Nationalist Congress Party, lies in the issue of OBC reservation in Maharashtra local bodies.
In a major embarrassment to the Maharashtra government, the Supreme Court in December 2021 stayed the 27% reservation for the Other Backward Classes in the local body elections. In this judgement, the court came down heavily on the Maharashtra government for not adhering to the triple tests laid down in the Vikas Kishanrao Gawali case regarding reservation in local bodies. The bench noted that “Without setting up a commission to collect data local government wise, it is not open to the State Election Commission to provide for reservation of OBC category. That is the 1st step which ought to have been done”. The triple tests mentioned in the Vikas Kishanrao Gawali case are setting up a dedicated commission for collecting empirical data of OBCs, specifying the proportion of reservation and lastly quota should not exceed the 50% ceiling.
This is not the first time that Supreme Court has stayed such kind of an ordinance for OBC reservation in the local body elections in Maharashtra. In March 2021, the SC had struck down the 27% OBC reservation given under the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 on the ground that it breached the 50% cap. But no lessons were learnt from the observations made by the Hon’ble Supreme Court. The chronology of deliberate negligence is clearly evident in the various half-hearted steps undertaken by the MVA government with regard to this issue.
Firstly, the concept of triple tests was laid down by the Supreme Court in the year 2010 itself. In the case of K. Krishnamurthy and others v. Union of India and others, a five-member Constitution Bench headed by the then Chief Justice K. Balakrishnan had noted, “dedicated commissions need to be appointed to conduct a rigorous empirical inquiry into the nature and implications of backwardness”. It also noted, “in the absence of updated empirical data, it is well nigh impossible for the Courts to decide whether the reservations in favour of OBC groups are proportionate or not”. At the same time the court also reiterated the upper cap of reservation at 50%. Despite knowing well in advance that without empirical data on OBCs or adherence to upper cap of reservation, the OBC reservation in local bodies cannot be ensured, the Maharashtra government, driven by political calculations, made the same legislative mistake twice. In this context, it is rightly said by Steven Denn that “You can never make the same mistake twice because the second time you make it, it’s not a mistake, it’s a choice”. Thus, repeating the same mistake in one or other form every time shows the negligent attitude of the Maharashtra government towards the political representation of the OBCs.
Secondly, after much dilly-dallying and due to the pressure from opposition particularly by BJP, it constituted the commission for the collection of empirical data for restoring the OBC quota but again it failed to release the requisite funds of Rs 435 crore for this purpose. The government blamed this delay on the superficial reason of difference of opinion between the government and the commission with regard to the method of collection of data. Thirdly, the Narendra Modi government in the spirit of cooperative federalism and welfare of OBCs, had passed the 127th Constitution Amendment Bill in August 2021, which empowers the states to make their own Inclusive OBC list. Also, extension of the constitutional status to the backward commission by the Modi government reflects the commitment of the BJP government for the interests of the OBCs. At the same time instead of utilizing these mechanisms, Maharashtra government is keeping this issue pending since last two years which demonstrates its not so good intentions for the welfare of the OBCs.
This lack of sincerity by the Maharashtra government towards the cause of political empowerment of the OBCs has cost the backward communities dearly in terms of political representation in the representative bodies at the grassroots. For the first time since 1994, no seats were reserved for the OBCs in Zilla Parishad bypolls held on 5 October. Also, future local body elections face the same fate until MVA submits the empirical data on OBCs. In an article of the Hindu, Dr Hari Narke, a former member of the State Backward Class Commission pointed out: “This verdict affected at least 56,000 OBC seats in 28,000 Gram Panchayats, 350 Panchayat Samitis, 367 Municipal Councils, 34 Zilla Parishads and 27 Municipal Corporations”. From this, we can estimate the injustice rendered by the Maharashtra government to the OBCs by denying them their share of political representation in the local bodies.
On the other hand, one gets a different picture when one looks at the measures taken by the Modi government for the empowerment and welfare of the OBCs. Be it extending the constitutional status to OBC commission or inclusion of record 27 OBC ministers in the new Cabinet, the commitment of the Modi government for the empowerment and welfare of the OBCs is unparalleled. Also, steps like increasing the income criteria of OBC creamy layer from Rs 6 lakh to Rs 8 lakh, 127th Constitutional amendment, an increase of 51% in the OBCs budget and recent introduction of reservation for OBCs in NEET, KVs and Sainik Schools are going to benefit large sections of the OBC population.
The Maharashtra government can take a leaf or two from the commitment and dedication behind these social justice measures by the BJP government. The way forward for the Maharashtra government is to pursue this issue with pure intentions and it should walk the talk by fast tracking the collection of the empirical data for restoring the reservation for OBCs in the local bodies. Also, till the restoration of OBC reservation, no such local body election should be conducted. All such elections should be postponed.
Prof. Pankaj Choudhary is Faculty of Law, University of Delhi; Directed Studies Fellow, The Hague academy of international law, Netherlands; Distinguished Legislative Fellow, United States Department of State, US; National In-Charge, Research and Policy, OBC Morcha, BJP. profpankaj@clc.du.ac.in