Senior Advocate and member of Parliamentary Committee on Privileges P Wilson has written to Prime Minister Narendra Modi, seeking equitable distribution of powers to the masses, amendments provided for mandatory reservations for SC & ST communities, along with women belonging to these communities.
The letter said, “Since the objective was equitable distribution of powers to the masses, the amendments provided for mandatory reservations for SC & ST communities and women belonging to these communities. In so far as the other backward classes, Articles 243-D(6) and 243-T(6) enabled the State Legislatures to enact legislation to provide for reservation of seats.
“However, Articles 243-D(6) and 243-T(6) do not specify the proportion of reservation to be provided for OBC’s unlike the case of SC and ST, where the Constitution stipulates that such reservation would be based on the proportion of population belonging to these categories vis-à-vis the total population of that area.
“However, when States use this enabling provision to provide OBC reservations in local body elections, certain legal difficulties have cropped up and reservations granted to OBC communities in local bodies have been struck down by the Supreme Court.
“Recently, the State of Maharashtra wanted to give reservations to OBCs in local body elections, but the State’s policy was struck down by the Supreme Court of India on the ground that there was no empirical data, local body wise, on the percentage of OBCs living in each local body.
“Likewise in Madhya Pradesh, after a legal battle, OBC reservations in local body elections were allowed by the Apex Court, but with a condition to examine the same with reference to data. In Union Territory of Puducherry, reservations for OBC’s has been denied since 1995 in local body elections. The UT Government withdrew the reservations granted in 2019 for OBCs and STs in the 2021 local body elections on the ground that there is no empirical data available. This withdrawal was challenged by the Dravida Munnetra Kazhagam before the Madras High Court.
In all these cases, the legal obstacle to States granting OBC reservations in local body elections is the want of ’empirical data’, which has been made a prerequisite by the judiciary. As per judicial pronouncements, the State has to appoint a dedicated Commission to gather information for ascertaining political
backwardness of the backward classes to specify the proportion of the reservation required local body-wise.
“In March 2011, pursuant to the 15th Lok Sabha passing a resolution to undertake Socio Economic Caste Census, which includes census of all castes other than SC/ST, the Union Cabinet spent a sum of Rs 4893.60 crore to conduct the caste census with the assistance of the States/Union Territories. This SECC
raw caste data was collected by the Union Government in 2015 and the Cabinet Committee Chaired by your good self decided to Screen the raw caste data through an expert Committee under the NITI AYOG to find out any infirmities.
“Yet, till today, the said committee has not functioned and the caste census data has not been released. Thus even though caste census was taken in “SECC 2011” by the Union, the same is not published till today for unknown reasons. The union is also refusing to undertake
fresh caste census.
Further, with the advent of 105th Constitutional Amendment and insertion of Article 342A(3) a State or a Union Territory may by law, prepare and maintain for its own purposes, a list of socially and educationally backward classes. However, the question that arises is how can a State prepare such a list when the Union
refuses to publish the screened caste census data? To exacerbate the problem, the States are powerless to conduct their own census
to ascertain the population of backward classes within their States since census is a Union Subject as per Entry 69, List I, Schedule VII of the Constitution of India.
Therefore, States are not constitutionally competent to conduct their own census. If census is moved to the concurrent list, it would enable States to conduct its own census and would aid the State in maintaining an accurate list of backward classes contemplated under Article 342-
A(3) and have empirical data of OBC communities local body wise.
The States can then grant reservations in accordance with this
data and there can be no challenge before Constitutional Courts
and shadow fighting in the legal arena can be avoided. This would
be a win-win situation for both the Union and the States. The
Union is saved from the time and expense and the States need not
wait indefinitely on the Union to provide caste census data.
Thus there is a constitutional deadlock prevailing in granting
reservations to OBC’s in local bodies. The judicial declarations
restraining grant of OBC reservations in local bodies has created
obstacles in achieving the object of the 73rd & 74th Constitution
amendments. The Union for its part has issued a press release
that it will seek review of these judicial pronouncements before
the Honble Supreme Court but no steps has been taken even till
today. However, it would be more useful if the Union just shares
the caste census data that it has collected 11 years ago.
Therefore, due to these myriad of problems, it is the OBC
communities across the nation who have paid a heavy price and
lost their lawful representation over thirty years in political posts
despite the Constitution enabling grant of reservations. What
should have logically flowed from the Constitutional amendments
have been stemmed at the threshold. Thus, the enabling
provisions in Articles 243 (D)6) and 243 (T)(6) have to be
converted in to mandatory provisions, mandating the grant of
OBC reservations, so that the benefit is not stalled further.
I would suggest a three pronged approach to remedy the problem
and set right the injustice being done to OBC communities: () To
move the entry census’ falling under Entry 69 of the Union List to
the Concurrent List giving both the Union and the State
concurrent power to conduct census and () simultaneously bring
necessary constitutional amendments in Art 243(D)(6) and Art
243(T)(6) to compulsorily grant OBC reservations in local body
elections on the basis of empirical data (ii) Until then release the
caste census data collected by the Union forthwith.