Why courts keep striking down OBC reservations in local body elections

Over the past few weeks, the Karnataka and the Patna High Courts have set aside notifications reserving seats for Other Backward Classes, or OBCs, in municipal elections in Bengaluru and Bihar. The two High Courts ruled that the state governments had not undertaken a proper data collection exercise before reserving seats for OBCs, as mandated by the Supreme Court.

Since 2021, OBC reservations in local bodies have been set aside on similar grounds by courts in three more states – Maharashtra, Odisha and Madhya Pradesh. This was after the Supreme Court in March last year set a three-fold test specifying conditions that states have to satisfy before granting reservations to OBCs in these bodies.

Though the Constitution says that seats are to be reserved for OBCs in local bodies, the process to grant this quota remains unclear.

Experts add that the parameters laid down by the courts relating to data to be collected on OBCs are not fuzzy. The challenges could be over come if the Centre releases the data of the 2011 Socio-Economic and Caste Census – the first census in independent India to count the population on the basis of caste – or carries out a new caste-based census, they say.

Reservations in local body polls

Reservations in local body elections began in 1992 when the Constitution was amended to introduce local body elections. With the 73rd and 74th amendments, seats were reserved for Scheduled Castes, Scheduled Tribes and the “backward class of citizens”.

For Scheduled Castes and Scheduled Tribes, the Constitution specifies that seats have to be reserved in proportion to the population of these groups in the area. However, on the “backward class of citizens”, the Constitution only says that state governments have the power to reserve seats for these groups without specifying how this is to be done.

In 2010, the Supreme Court held that the backwardness with relation to local bodies has to be “political” – such as underrepresentation in politics. It may differ from “social and educational backwardness”, which is used to grant reservations in seats in educational institutions or government jobs. However, the Supreme Court left it to the states to determine which groups were eligible to be counted as politically backward. To do this, the states were to set up “dedicated commissions” that would conduct a “rigorous empirical inquiry into the nature and implications of backwardness”.

In March last year, the Supreme Court, while deciding on the legality of OBC reservations in Maharashtra local body elections, set out a three-fold test that state governments have to follow to provide these reservations.

First, they must set up a dedicated commission to examine backwardness in local bodies within the state. Second, states must determine the size of the quota based on the commission’s data. Third, these reservations, combined with Scheduled Castes and Scheduled Tribes quotas, should not be more than 50% of the total seats in the local body.

The Supreme Court found that the Maharashtra government had failed to satisfy these three tests and struck down OBC reservations in local bodies.

Triple test in states

Since the Supreme Court’s judgement, the triple test has been used by courts to strike down reservations in several local bodies.

On October 4, the Patna High Court held that the Bihar government had failed on two out of the three tests while reserving seats for a section of OBCs for municipal elections in the state. The High Court said that although the state relied on data from a commission formed in 1971 to identify the most backward classes – a subset of OBCs – the commission had primarily examined “social, educational and economic backwardness” and not political backwardness.

On September 30, the Karnataka High Court set aside a state government notification reserving seats for OBCs in the Bruhat Bengaluru Mahanagara Palike, Bengaluru’s civic body.

In this case, the commission formed to look into backwardness said that 44.4% of the population in the state belong to backward classes. However, the court said that based on the documents submitted to it, the government’s estimate was not “based on any empirical data”.

In December, the Supreme Court struck down OBC reservations for Madhya Pradesh local body elections, holding that the triple test was not followed. The Orissa High Court too in December ruled that local body elections have to take place without OBC reservations.

Delay in polls, reservation

As a result of such court verdicts, local body elections are either being delayed or held without OBC quotas.

In December, the Supreme Court said that any state, including Maharashtra and Madhya Pradesh, that could not fulfil the triple test should hold elections without OBC reservations. As a result, the Maharashtra government passed a resolution in December to defer local body elections by at least three months.

In May, the Supreme Court acknowledged a report submitted by the Madhya Pradesh government and allowed it to hold elections with OBC quotas – though without commenting on the correctness of the report. Two months later, it did the same for the Maharashtra government.

Although the Patna High Court had asked the state election commission to re-notify reserved seats as general category seats and hold the local elections immediately, the poll body on October 4 indefinitely postponed the local body elections that were scheduled for that month.

In states where the government could not fulfil the triple test, local body elections were held without OBC reservations. In Jharkhand this May, around 9,500 panchayat seats that would otherwise have been reserved, came under the general category.

Data test in court

The fallout of the courts striking down reservations due to the lack of data has been felt in other spheres as well. A prominent example is reservations for Scheduled Castes and Scheduled Tribes in promotions for government jobs.

In 2006, the Supreme Court laid down how governments can reserve places for members of specific groups to be promoted. It said that there has to be quantifiable data to show that the group getting the reservation is backward, inadequately represented and that this quota does not affect overall efficiency.

Governments found it difficult to collect this data, leading to courts striking down multiple instances of reservation being granted. Many governments asked for these criteria to be struck down. In 2018, the Supreme Court said that data about backwardness is not required, but the other two requirements – of inadequate representation and the quota not affecting efficiency – are mandatory.

When state governments sought a clarification, the court in January said data has to be collected cadre-wise. However, it refused to lay down a metric for determining inadequacy in services and said that reservations will be judged “on a case-to-case basis” by the court.

Anurag Bhaskar, a professor of law at Jindal Global Law School, said there is an inconsistency in the court’s approach. “On one hand courts strike down reservations, but when governments ask courts to lay down the criteria, courts do not lay it down,” he said. Bhaskar added that the courts should have deferred to the government.

Inconsistent reasoning?

Some researchers say that the lack of data is not the only problem. “[The] judiciary has always been reluctant to give or extend reservations,” said Tejas Harad, journalist and founder of The Satyashodhak, a publication on issues of caste. “If data is the issue, you can also challenge reservations in education and jobs. But since those reservations are older, it is hard for courts to challenge it now.”

Harad added that the other provisions for reservation that were still being struck down were not as “well settled”, like in the case of quota in promotions for Scheduled Castes and Scheduled Tribes.

Further, he said that it was not clear on what basis the courts were accepting such data. For instance, in the case of Madhya Pradesh, a week before accepting a report submitted on OBC reservations, the court had not accepted the previous version of the report.

Harad said courts strike down a provision for quotas but when they reinstate it, it is never made clear on what basis such a decision was made. “It seems a little arbitrary,” he said.

Others, however, believe that there are legislative gaps and that the courts are not solely to blame. “The Constitution does not mention what backward classes [for political reservations] are,” said Mayuri Gupta, a research fellow at legal think tank Vidhi Centre for Legal Policy. “[The] legislature should define what is meant by backward class in order to end the impasse over OBC reservation in local body elections.”

Caste census

The difficulty in implementing reservations because of the lack of data has resulted in several state governments, activists and politicians seeking another caste-based census.

When the Maharashtra government in September last year petitioned the Supreme Court seeking the release of data from the 2011 caste-based census, the Centre responded saying the data had mistakes and could not be relied upon for granting reservations.

The government had decided to collect data on Scheduled Castes and Scheduled Tribes in the next Census that was due in 2021 but has been delayed indefinitely because of the Covid-19 pandemic.

The Maharashtra government had asked the Centre collect data on OBCs during the 2021 Census. But the Centre refused, saying that it was “administratively difficult and cumbersome”.

“You need to have data for OBCs at the local level [for these reservations to be implemented],” said Yashwant Zagade, a doctoral student at Tata Institute of Social Sciences, Mumbai, who researches on caste. “But no one has that data.”

The Centre releasing the caste census data will help here, said Zagade.

Also read:

Explainer: Why have reservations in promotions sparked such a hectic debate in the courts?

India urgently needs a caste census – so why isn’t the Modi government allowing one?