PANAJI
The Bombay High Court at Goa on Wednesday rejected a petition challenging the notification of the State Election Commission to notify the reservations for elections to the 186 panchayats without any reservations for Other Backward Classes (OBCs).
The High Court in its judgement pointed out that the Supreme Court has already rejected pleas to postpone elections on the basis that the ‘triple test’ for OBC reservations was yet to be completed and also pointed out that the government hasn’t moved to complete the triple test for OBC representation despite the test being made mandatory since 2010 as well as pointing out that if political parties are so concerned about OBC reservations, they can in any case sponsor candidates from the OBC background in the general category seats.
The High Court also pointed out that in the previous two petitions -- petitions challenging the delay as well as the State government’s request for extension of time -- there “was no whisper about the issue of collection of data for reservations to the OBCs”.
The petitioners approached the High Court arguing that they should not be made to suffer on account of the failure of the government to complete the reservation process in time as per the triple test mandated by the Supreme Court.
“Despite the requests, the State Government did not provide the data about the OBCs in compliance with the directions of the Supreme Court. The term of the 186 panchayats had expired on 18th June 2022, and the State Government and the SEC had already breached the constitutional mandate in Article 243-E by not holding the elections before the said date. As of the date of Notification dated 1st July 2022, there was no compliance with the triple test prescribed by the Supreme Court,” the High Court bench of Justices M S Sonak and R N Laddha ruled.
“The Supreme Court had not approved the action of postponing the elections to collect the empirical data or to comply with the triple test. The Supreme Court held that the constitutional mandate could not be disregarded for such a reason. The Constitution Bench further held that before any policy of reservation for OBCs to the local bodies can be implemented, the Authorities must ensure compliance with the triple test,” the HC said.
The triple test consists of ensuring that a dedicated Commission to conduct a contemporaneous rigorous empirical inquiry into the nature and implications of the backwardness qua local bodies, within the State; to specify the proportion of reservation required to be provisioned local body-wise in light of recommendations of the Commission, so as not to fall foul of overbreadth; and in any case such reservation shall not exceed the aggregate of 50 per cent of the total seats reserved in favour of SCs/STs/OBCs taken together.
The High Court also pointed out that when it comes to reservations of SCs/STs or women, the State Legislature has used the expression ‘shall’ (in the Goa Panchayati Raj Act). However, when it comes to providing reservations for OBCs, the State Legislature has used the word ‘may.’
“From this, it is quite clear that no constitutional or statutory mandate as such exists to provide reservations to OBCs. The constitutional and statutory provisions are only enabling in nature. In such circumstances, the prayer for a writ of mandamus to direct the SEC to provide reservations to the OBCs cannot be granted,” the High Court said in response to the plea that the Goa Panchayati Raj Act mandates reservations for OBCs.
“The Authorities that now profess to provide for reservation to the OBCs have offered no explanation whatsoever why no steps were taken to comply with the triple test formulated by the Constitution Bench way back in 2010. The Respondents, having faltered in complying with the constitutional prerequisites for OBC reservations, cannot now plead this lapse as an excuse to breach the Constitutional mandate in Article 243E and seek postponement of elections,” the High Court observed.
“The political parties who claim to be the protagonist of participation of OBC in the governance of local bodies, are free to nominate candidates belonging to the OBC category in the concerned constituencies and even against all General seats available after reserving for Scheduled Castes and Scheduled Tribes,” the High Court said quoting the Supreme Court’s order.
