Mumbai Two months after the Banthia Commission was appointed by the state government to conduct an inquiry into the political backwardness of Other Backward Class (OBC) communities — an exercise that stands to have major political implications for all political parties in Maharashtra in view of the upcoming local body polls slated to be held this year — the Maharashtra Vikas Aghadi (MVA) coalition government is hopeful of completing the triple test mandated by the apex court and bring back seats reserved for OBC candidates.
The commission is collecting data from village, tehsil and district-level revenue department machinery (which keeps records related to the reservation and caste representation) in the case of rural bodies, as well as corporations and collectorates, in the case of urban bodies. All the local level bodies have been asked to collect information such as: What is the reservation currently available to various caste and class categories; caste details of elected representatives, the political party they represent and the wards/ local body itself, among other things. Much of this information has already been submitted by the local level machinery (gram panchyat and panchayat samitis) to the commission.
“Besides this, the State Election Commission (SEC) has submitted data related to reservation starting 1994. We have been collating the data on the lines of the data collected by the Madhya Pradesh commission. It is scientifically formulated with the help of the expert members from the Tata Institute of Social Sciences (TISS) and the International Institute for Population Sciences. There was no need to go door-to-door to ascertain the political backwardness of the communities as the data available with the state machinery was sufficient. The local level machinery however was told to speak to the elected representatives as well as experts with knowledge of the local demography,” an official from Mantralaya said, requesting anonymity.
The commission is expected to deliver this report in June.
Food and Civil Supplies minister and OBC leader Chhagan Bhujbal said last week that the Banthia Commission report will help the state restore its OBC quota in local bodies. “We will be able to restore the OBC quota similar to the permission given to MP by the apex court.”
But the case may not be as simple as that. The SC on May 18 gave a go ahead to Madhya Pradesh — which like Maharashtra, had 27% OBC reservation in local polls and was struck down by the top court last year — to notify the OBC seats, accepting a report of the three-member OBC commission formed by MP last September. This commission quantified the population of OBCs in the state at 48% and permitted reservation of varying quantum across each municipal seat, extending to a maximum of 35%.
However, the court clarified that it had not decided on the merits of the commission’s report and had only allowed MP to rely on the commission’s findings for permitting the reservation. There are a couple of laws pertaining to local bodies that have been challenged in the top court and the case is pending. This order could be rectified/changed depending on the outcome of that case.
All the same, this is the first time that a state government has managed to clear the triple test formula mandated by the apex court in the context of providing reservation for OBCs in local body polls.
While quashing the reservation for Other Backward Class (OBC) candidates in Maharashtra’s local bodies last year, the SC directed the state to comply with the “triple test” laid down by a previous top court judgement. The three conditions are: a commission must conduct empirical inquiry into the nature and implications of political backwardness of OBC communities, it must make recommendations on political reservation in local bodies, and the reservation should not exceed a 50% ceiling also including the seats reserved for Scheduled Caste/Scheduled Tribe (SC/ST) and women candidates.
In response, the Maharashtra government asked the Centre to share its 2011 Socio Economic and Caste Census (SECC) data to ascertain the backwardness of various communities in the state. When the Centre turned down this demand stating that the data was “flawed”, the state in June 2021 constituted the Maharashtra State Commission for Backward Classes (MSCBC) to compile empirical data on various communities. The state submitted an interim report to the SC based on data provided by the commission in January, but the apex court rejected it on March 3. The Maharashtra Vikas Aghadi (MVA) government then reconstituted a dedicated commission headed by former chief secretary Jayant Banthia, on March 11, which has been asked to submit its report within three months.
The political backwardness of OBCs
OBC reservation was introduced in Maharashtra in 1994. Prior to this, local body elections were held under a 1959 act (pertaining to gram panchayats) and a 1962 act (pertaining to district councils). SC/ST reservation, which is constitutionally mandated, was decided on the basis of the proportion of their population in respective local bodies. A 2010 SC judgement mandated the triple test exercise before allotting reservations.
In Maharashtra, 346 communities are classified as OBCs and at least dozens fall under the VJNT (Vimukt Jati and Nomedic Tribes) category, all of which have reservations in local bodies. The MSCBC revises this list from time to time. Though the SC states that barriers to political participation may not be of the same character as barriers that limit access to education and employment, states tend to link economic and educational backwardness with political backwardness.
“It has been seen that socially and economically progressive communities are adequately represented in politics, too. The Maratha community is an example of it. These communities are aware about their rights even in politics. The data which is collated by the Banthia commission from 1960 will ascertain the representation given to the OBCs from the open categories till 1994 and the representation they got after the introduction of the reservation in 1994,” an official from the rural development department, requesting anonymity said.
A summary of the MP report (HT has seen a copy of the report) stated: “In its report, the dedicated commission appointed by MP government has stated that that during its eight-month long study, survey and research it has found that the social and economic backwardness have become barriers resulting in OBCs are left backward in getting political equality.”
The official also pointed at the MP commission’s report which stated that economic and social backwardness is related to political backwardness. “No parameters of political backwardness have been set. This may be linked to the proportion of representation in relation to their population in respective local bodies,” the official added.
In Maharashtra, OBCs candidates do not have reservation in Nandurbar, Palghar and Gadchiroli, as the SC/ST population in these three districts is more than 50%. Prior to the SC’s March 2021 judgment, reservation for OBCs was up to 27%, depending on the SC/ST population, in In 17 districts. Fourteen districts qualified for 27% reservation for OBCs.
“The Madhya Pradesh government held the survey on ground and extracted data from village panchayats using voter lists. They also retrieved data from municipal corporations and district councils to make it fool proof. The question is whether the Maharashtra government-appointed Banthia commission is following the SC directions for collecting the data. Unless it is collating contemporaneous data, it will be difficult [for the report] to pass the legal test,” said Sachin Rajurkar, general secretary, Rashtriya OBC Mahasangh, an organisation for the welfare of OBCs.
The Supreme Court verdict
The SC in its March 4, 2021 order mandated that “fresh” data of OBC communities be collated, in order to establish political backwardness.
“The identification of backward classes for the purpose of reservations is an executive function… dedicated commissions need to be appointed to conduct a rigorous empirical inquiry into the nature and implications of backwardness…. In the absence of updated empirical data, it is wellnigh impossible for the courts to decide whether the reservations in favour of OBC groups are proportionate or not,” the judgement read.
“It would be safe to say that not all of the groups which have been given reservation benefits in the domain of education and employment need reservations in the sphere of local self-government. This is because the barriers to political participation are not of the same character as barriers that limit access to education and employment. This calls for some fresh thinking and policy making with regard to reservations in local self -government,” the order further stated.
In September 2021, the state promulgated an Ordinance introducing 27% reservation for OBC in defiance of the triple test criteria, but this was also struck down by the SC in December. The same month, the state amended its terms of reference for the MSCBC and sought an interim report. In February 2022, the state moved an application in the top court to allow OBC reservation based on the commission’s interim report, but their plea was turned down. The court directed the SEC to ensure elections, notifying OBC-reserved seats as general category seats. Following this, on March 7, the state amended the law to carry out delimitation of wards, thus effectively delaying elections to local bodies — and buying itself some time.
On May 4, the apex court asked the state election commission to begin its poll work in two weeks. Accordingly the SEC resumed what it had left off on March 11, when the state’s new laws taking over the election panel’s power of ward formation, was notified.
Twenty municipal corporations, including the Brihanmumbai Municipal Corporation and the civic bodies in Pune, Thane, Nagpur, and Navi Mumbai, 25 district councils, 285 panchayat samitis, 210 nagar panchayats, and more than 2,000 gram panchayats are due for polls in the coming months.
