Holding

Section 12(2)(c) is an enabling provision that can be invoked only after the State complies with the triple test, and the OBC reservations must not cause the aggregate SC/ST/OBC reservation to exceed 50%; the impugned notifications are void and the elections for OBC‑reserved seats are non est.

Summary

The petitioners challenged the constitutionality of Section 12(2)(c) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 and two State Election Commission notifications that reserved OBC seats beyond the 50% ceiling in several districts. Relying on the Constitution Bench decision in K. Krishna Murthy, the Court held that OBC reservation is a statutory, not constitutional, power and must satisfy a "triple test": a dedicated commission must conduct a rigorous empirical inquiry, the reservation must be proportionate to each local body, and the aggregate vertical reservation for SCs, STs and OBCs must not exceed 50%. The Court read down Section 12(2)(c) to mean "may be" up to 27% subject to the 50% ceiling and declared the impugned notifications void. Consequently, elections held for the OBC‑reserved seats are declared non est and the vacancies must be filled by open‑category candidates. The writ petitions were partly allowed, the notifications quashed, and directions were issued to conduct fresh elections for the vacated seats.

Issues considered

Whether Section 12(2)(c) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 is ultra vires Articles 243-D, 243-T, 14 and 16 of the Constitution.
Whether the State Election Commission notifications reserving OBC seats beyond the 50% aggregate ceiling are valid.
Whether the "triple test" (dedicated commission, proportionate reservation, 50% ceiling) must be complied with before OBC reservation can be effected.
Whether the elections conducted under the impugned notifications are void and non est.
Whether the provision in Section 12(2)(c) can be saved by a reading‑down construction.

Legislation cited

Constitution of Indias. Art. 340, s. Arts. 14, s. Arts. 16, s. Arts. 243-D, s. Arts. 243-T
Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961s. 12(2)(c)

Subjects

reservationlocal self-governmentOBCconstitutional lawArticle 243-DArticle 243-TArticle 14Article 16MaharashtraState Election Commissionvertical reservation ceilingtriple testreading downultra vires

Judgment

[2021] 2 S.C.R. 173 173

VIKAS KISHANRAO GAWALI A
v.
STATE OF MAHARASHTRA & ORS.
(Writ Petition (Civil) No. 980 of 2019)
MARCH 04, 2021 B
[A.M. KHANWILKAR, INDU MALHOTRA AND
AJAY RASTOGI, JJ.]

Maharashtra Zilla Parishads and Panchayat Samitis Act,
C
1961 – s.12(2)(c) – Constitution of India – Arts. 14, 16, 243-D and
243-T – Reservation in local self-government – Petitioners sought
a declaration that s.12(2)(c) of the Maharashtra Zilla Parishads
and Panchayat Samitis Act, 1961, is ultra vires the provisions of
Arts. 243-D and 243-T including Arts. 14 and 16 of the Constitution
– In addition, the validity of notifications dated 27.07.2018 and D
14.02.2020 issued by the State Election Commission providing for
reservation exceeding 50 per cent in respect of Zilla Parishads and
Panchayat Samitis have been questioned – The provision in the
form of s.12 of the 1961 Act enables the respondents to reserve 27
per cent of seats for persons belonging to the Backward class citizens
E
in the concerned Zilla Parishads and Panchayat Samitis – The
respondent-State urged that the that it is permissible to reserve seats
for OBCs to the extent permissible in the 1961 Act – Held: The
decision of the Constitution Bench in K. Krishna Murthy required
the triple test/conditions required to be complied by the State before
reserving seats in local bodies for OBCs i.e. (1) to set up a dedicated F
Commission to conduct contemporaneous rigorous empirical inquiry
into the nature and implications of the backwardness qua local
bodies, within the State; (2) 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
G
overbreadth; and (3) in any case such reservation shall not exceed
aggregate of 50 per cent of the total seats reserved in favour of
SCs/STs/OBCs taken together – The said triple test conditions were
not complied by the State – As regards s.12(2)(c) of the 1961 Act
inserted in 1994, the plain language does give an impression that
H
173
174 SUPREME COURT REPORTS [2021] 2 S.C.R.

A uniform and rigid quantum of 27 per cent of the total seats across
the State need to be set apart by way of reservation in favour of
OBCs – In light of the dictum of the Constitution Bench, such a
rigid provision cannot be sustained much less having uniform
application to all the local bodies within the State – The provision
in the form of s.12(2)(c) can be saved by reading it down – The
B
expression “shall be” preceding 27 per cent occurring in s.12(2)(c),
be construed as “may be” including to mean that reservation for
OBCs may be up to 27 per cent but subject to the outer limit of 50
per cent aggregate in favour of SCs/STs/OBCs taken together, as
enunciated by the Constitution Bench of this Court – In the instant
C case, no inquiry much less contemporaneous rigorous empirical
inquiry into the nature and implications of backwardness by a
dedicate Commission established by the State for the purpose was
undertaken, it is not open to the State to fall back on s.12(2)(c) as
enacted in 1994 – That provision is an enabling provision and
would become functional and operational only upon fulfilling triple
D
test as specified by the Constitution Bench – Thus, the impugned
notifications issued by the State Election Commission reserving seats
for OBCs in the concerned local bodies, suffer from the vice of
foundational jurisdictional error – The impugned notifications to
the extent it provides for reservation for OBCs in the concerned
E local bodies, is, therefore, void and without authority of law.
Disposing of the writ petitions, the Court
HELD: 1. On a fair reading of the exposition in the K.
Krishna Murthy, what follows is that the reservation for OBCs is
only a “statutory” dispensation to be provided by the State
F legislations unlike the “constitutional” reservation regarding
SCs/STs which is linked to the proportion of population. As
regards the State legislations providing for reservation of seats
in respect of OBCs, it must ensure that in no case the aggregate
vertical reservation in respect of SCs/STs/OBCs taken together
G should exceed 50 per cent of the seats in the concerned local
bodies. In case, constitutional reservation provided for SCs and
STs were to consume the entire 50 per cent of seats in the
concerned local bodies and in some cases in scheduled area even
beyond 50 per cent, in respect of such local bodies, the question

H
VIKAS KISHANRAO GAWALI v. STATE OF MAHARASHTRA 175
& ORS.

of providing further reservation to OBCs would not arise at all. A
To put it differently, the quantum of reservation for OBCs ought
to be local body specific and be so provisioned to ensure that it
does not exceed the quantitative limitation of 50 per cent
(aggregate) of vertical reservation of seats for SCs/STs/OBCs
taken together. [Para 7][187-A-D]
B
2. Besides this inviolable quantitative limitation, the State
Authorities are obliged to fulfil other pre-conditions before
reserving seats for OBCs in the local bodies. The foremost
requirement is to collate adequate materials or documents that
could help in identification of backward classes for the purpose
of reservation by conducting a contemporaneous rigorous C
empirical inquiry into the nature and implications of backwardness
in the concerned local bodies through an independent dedicated
Commission established for that purpose. Thus, the State
legislations cannot simply provide uniform and rigid quantum of
reservation of seats for OBCs in the local bodies across the State D
that too without a proper enquiry into the nature and implications
of backwardness by an independent Commission about the
imperativeness of such reservation. Further, it cannot be a static
arrangement. It must be reviewed from time to time so as not to
violate the principle of overbreadth of such reservation (which in
itself is a relative concept and is dynamic). Besides, it must be E
confined only to the extent it is proportionate and within the
quantitative limitation as is predicated by the Constitution Bench
of this Court. [Para 8][187-D-G]
3. As a matter of fact, no material is forthcoming as to on
what basis the quantum of reservation for OBCs was fixed at 27 F
per cent, when it was inserted by way of amendment in 1994.
Indeed, when the amendment was effected in 1994, there was no
guideline in existence regarding the modality of fixing the limits
of reserved seats for OBCs as noted in the decision of the
Constitution Bench in K. Krishna Murthy. After that decision, G
however, it was imperative for the State to set up a dedicated
Commission to conduct contemporaneous rigorous empirical
inquiry into the nature and implications of backwardness and on
the basis of recommendations of that Commission take follow up

H
176 SUPREME COURT REPORTS [2021] 2 S.C.R.

A steps including to amend the existing statutory dispensation, such
as to amend Section 12(2)(c) of the 1961 Act. There is nothing on
record that such a dedicated Commission had been set up until
now. [Para 11][188-D-G]
4. Be that as it may, it is indisputable that the triple test/
B conditions required to be complied by the State before reserving
seats in the local bodies for OBCs has not been done so far. To
wit, (1) to set up a dedicated Commission to conduct
contemporaneous rigorous empirical inquiry into the nature and
implications of the backwardness qua local bodies, within the
State; (2) to specify the proportion of reservation required to be
C provisioned local body wise in light of recommendations of the
Commission, so as not to fall foul of overbreadth; and (3) in any
case such reservation shall not exceed aggregate of 50 per cent
of the total seats reserved in favour of SCs/STs/OBCs taken
together. In a given local body, the space for providing such
D reservation in favour of OBCs may be available at the time of
issuing election programme (notifications). However, that could
be notified only upon fulfilling the aforementioned pre-conditions.
Admittedly, the first step of establishing dedicated Commission
to undertake rigorous empirical inquiry itself remains a mirage.
To put it differently, it will not be open to respondents to justify
E the reservation for OBCs without fulfilling the triple test, referred
to above. [Para 12][189-B-E]
5. As regards Section 12(2)(c) of the 1961 Act inserted in
1994, the plain language does give an impression that uniform
and rigid quantum of 27 per cent of the total seats across the
F State need to be set apart by way of reservation in favour of OBCs.
In light of the dictum of the Constitution Bench, such a rigid
provision cannot be sustained much less having uniform
application to all the local bodies within the State. Instead,
contemporaneous empirical inquiry must be undertaken to identify
G the quantum qua local body or local body specific. [Para 13]
[189-E-F]
6. In opinion of this Court, the provision in the form of
Section 12(2)(c) can be saved by reading it down, to mean that
reservation in favour of OBCs in the concerned local bodies may
H
VIKAS KISHANRAO GAWALI v. STATE OF MAHARASHTRA 177
& ORS.

be notified to the extent, that it does not exceed 50 per cent of A
the total seats reserved in favour of SCs/STs/OBCs taken
together. In other words, the expression “shall be” preceding
27 per cent occurring in Section 12(2)(c), be construed as “may
be” including to mean that reservation for OBCs may be up to
27 per cent but subject to the outer limit of 50 per cent aggregate
B
in favour of SCs/STs/OBCs taken together, as enunciated by the
Constitution Bench of this Court. On such interpretation, Section
12(2)(c) can be saved and at the same time, the law declared by
the Constitution Bench of this Court can be effectuated in its
letter and spirit. [Para 14][189-G-H; 190-A-B]
7. In light of the finding recorded hitherto (that no inquiry C
much less contemporaneous rigorous empirical inquiry into the
nature and implications of backwardness by a dedicate
Commission established by the State for the purpose has been
undertaken), it is not open to the State to fall back on Section
12(2)(c) as enacted in 1994. That provision, as aforementioned, D
is an enabling provision and would become functional and
operational only upon fulfilling triple test as specified by the
Constitution Bench of this Court. That is the sine qua non or the
quintessence for exercise of power to reserve seats for OBCs in
the local bodies. Indeed, the exercise of power to reserve seats
for OBCs springs from Section 12(2)(c) of the 1961 Act, but that E
is hedged by conditions and limitations specified by the
Constitution Bench of this Court and would not get ignited until
such time. [Para 17][190-G-H; 191-A-B]
8. Thus understood, the impugned notifications issued by
the State Election Commission reserving seats for OBCs in the F
concerned local bodies, suffer from the vice of foundational
jurisdictional error. The impugned notification(s) to the extent it
provides for reservation for OBCs in the concerned local bodies,
is, therefore, void and without authority of law. [Para 18]
[191-B-C] G
9. A priori, the elections conducted by the State Election
Commission on the basis of such notifications concerning
reserved OBC seats alone are vitiated and must be regarded as
non est in the eyes of law from its inception in the wake of
H
178 SUPREME COURT REPORTS [2021] 2 S.C.R.

A declaration of law in that regard by the Constitution Bench of
this Court. [Para 19][191-C-D]
10. In conclusion, this Court hold that Section 12(2)(c) of
the 1961 Act is an enabling provision and needs to be read down
to mean that it may be invoked only upon complying with the
B triple conditions as specified by the Constitution Bench of this
Court, before notifying the seats as reserved for OBC category
in the concerned local bodies. Further, this Court quash and set
aside the impugned notifications to the extent they provide for
reservation of seats for OBCs being void and non est in law
including the follow up actions taken on that basis. In other words,
C election results of OBC candidates which had been made subject
to the outcome of these writ petitions including so notified in the
concerned election programme issued by the State Election
Commission, are declared as non est in law and the vacancy of
seat(s) caused on account of this declaration be forthwith filled
D up by the State Election Commission with general/open
candidate(s) for the remainder term of the concerned local bodies,
by issuing notification in that regard. [Para 25][198-E-G;
199-A-B]
K. Krishna Murthy (Dr.) & Ors. v. Union of India &
E Anr. (2010) 7 SCC 202 : [2010] 6 SCR 972 – followed.
Case Law Reference
[2010] 6 SCR 972 followed para 2
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil)
No. 980 Of 2019
F UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA
With
Writ Petition (Civil) Nos. 981 of 2019, 1408 of 2019, 743 of 2020.
Vikas Singh, Sr. Adv., Sandeep Sudhakar Deshmukh, Amol B.
Karande, Kapish Seth, Mukesh Samarth, D.N. Goburdhun, Mrs. Sujata
G Kumar Muni, Somanatha Padhan, Ravindra Keshavrao Adsure, Rahul
Chitnis, Sachin Patil, Aaditya A. Pande, Geo Joseph, Ajit Kadathankar,
Vijay Kumar, Ms. Bharti Tyagi, Ms. Qurratulain, Ms. Damini Hajela,
Brij Kishor Sah, Nicholas Chaudhary, Aditya Jadhav, Himanshu Bhushan,
Sudhanshu S. Choudhari, and Mahesh P. Shinde, Advs. for the appearing
H parties.
VIKAS KISHANRAO GAWALI v. STATE OF MAHARASHTRA 179
& ORS.

The Judgment of the Court was delivered by A
A.M. KHANWILKAR, J.
1. These writ petitions under Article 32 of the Constitution of
India seek a declaration that Section 12(2)(c) of the Maharashtra Zilla
Parishads and Panchayat Samitis Act, 19611, is ultra vires the provisions
of Articles 243-D and 243-T including Articles 14 and 16 of the B
Constitution of India. In addition, the validity of the notifications dated
27.7.2018 and 14.2.2020 issued by the State Election Commission,
Maharashtra providing for reservation exceeding 50 per cent in respect
of Zilla Parishads and Panchayat Samitis of districts Washim, Akola,
Nagpur and Bhandara have been questioned and it is prayed that the C
same be quashed and set aside. A district wise chart has been presented
to illustrate the excess reserved percentage and seats (more than
aggregate 50 per cent of total seats), in some of the districts, which
reads thus:
“District: Washim D
Particulars Total General Reserved Exceed 50 per cent
Seats SC ST OBC Percentage Seats
Zilla Parishad 52 23 11 04 14 5.76 % 3
Gram Panchayat 490 219 100 39 132 5.30 % 26
District: Bhandara
Particulars Total General Reserved Exceed 50 per cent E
Seats SC ST OBC Percentage Seats
Zilla Parishad 52 25 09 04 14 1.92 % 1
Gram Panchayat 541 261 91 43 146 1.75 % 9

District: Akola
Particulars Total General Reserved Exceed 50 per cent
Seats SC ST OBC Percentage Seats F
Zilla Parishad 53 22 12 05 14 8.49 % 4
Panchayat Samiti 106 44 25 09 28 8.49 % 9
Gram Panchayat 539 226 125 42 146 8.07 % 43
District: Nagpur
Part iculars Total General Reserved Exceed 50 per cent
Seats SC ST OBC Percentage Seats
Zilla Parishad 58 25 10 07 16 6.89 % 4 G
Panchayat Samiti 116 51 19 15 31 6.03 % 7
Gram Panchayat 772 330 137 97 208 7.25 % 56

1
for short, “the 1961 Act” H
180 SUPREME COURT REPORTS [2021] 2 S.C.R.

A District: Gondiya
Particulars Total General Reserved Exceed 50 per cent
Seats SC ST OBC Percentage Seats
Zilla Parishad 53 23 06 10 14 6.60 % 3
Panchayat Samiti 106 45 12 19 30 7.54 % 8
Gram Panchayat 544 232 66 99 147 7.35 % 40”
(emphasis supplied)
B 2. The conundrum in these matters revolves around the exposition
of the Constitution Bench of this Court in K. Krishna Murthy (Dr.) &
Ors. v. Union of India & Anr.2. Relying on the dictum in the said decision,
the petitioners would urge that it is no more open to the respondents to
reserve more than 50 per cent (aggregate) seats in the concerned local
C bodies by providing reservation for Scheduled Castes3/Scheduled Tribes4/
Other Backward Classes5. Whereas, the respondent-State would urge
that the stated decision recognises that it is permissible to reserve seats
for OBCs to the extent permissible in the 1961 Act. Further, in exceptional
situation, the reservation for SCs/STs/OBCs in the concerned local bodies
(Zilla Parishads and Panchayat Samitis) could exceed even 50 per
D cent of the total seats. This is the central issue to be dealt with in the
present writ petitions.
3. The provision in the form of Section 12 of the 1961 Act enables
the respondents to reserve 27 per cent of seats in the concerned Zilla
Parishads and Panchayat Samitis. Section 12 of the 1961 Act is
E reproduced hereunder:
“12. Division of District into electoral division.—(1) The State
Election Commission shall, for the purposes of election of
Councillors divide every District; into electoral divisions (the
territorial extent of any such division not being outside the limits
F of the same Block), each returning one Councillor, and there shall
be a separate election for each electoral division:
Provided that, such electoral division shall be divided in such a
manner that the ratio between the population of each electoral
division and the total number of Councillors to be elected for the
G Zilla Parishad shall, so far as practicable, be the same throughout
the Zilla Parishad area:
2
(2010) 7 SCC 202
3
for short, “the SCs”
4
for short, “the STs”
5
H for short, “the OBCs”
VIKAS KISHANRAO GAWALI v. STATE OF MAHARASHTRA 181
& ORS. [A.M. KHANWILKAR, J.]

Provided further that, while distributing such electoral divisions A
among the Panchayat Samitis, not less than two electoral divisions
shall be allotted to each Panchayat Samiti.
(2)(a) In the seats to be filled in by election in a Zilla Parishad
there shall be seats reserved for persons belonging to the Scheduled
Castes, Scheduled Tribes, Backward Class of citizens and women, B
as may be determined by the State Election Commission in the
prescribed manner:
(b) the seats to be reserved for the persons belonging to the
Scheduled Castes and the Scheduled Tribes in a Zilla Parishad
shall bear, as nearly as may be, the same proportion to the total C
number of seats to be filled in by direct election in that Zilla
Parishad as the population of the Scheduled Castes or, as the
case may be, the Scheduled Tribes in that Zilla Parsishad area
bears to the total population of that area and such seats shall be
allotted by rotation to different electoral divisions in a Zilla
Parishad: D

Provided that, in a Zilla Parishad comprising entirely the
Scheduled Areas, the seats to be reserved for the Scheduled Tribes
shall not be less than one-half of the total number of seats in the
Zilla Parishad:
E
Provided further that, the reservation for the Scheduled Tribes in
a Zilla Parishad falling only partially in the Scheduled Areas shall
be in accordance with the provisions of clause (b):
Provided also that one-half of the total number of seats so reserved
shall be reserved for women belonging to the Scheduled Castes F
or, as the case may be, the Scheduled Tribes:
(c) the seats to be reserved for persons belonging to the
category of Backward Class of Citizens shall be 27 per cent.
of the total number of seats to be filled in by election in a
Zilla Parishad and such seats shall be allotted by rotation
G
to different electoral divisions in a Zilla Parishad :
Provided that, in a Zilla Parishad comprising entirely the
Scheduled Areas, the seats to be reserved for the persons
belonging to the Backward Class of Citizens shall be 27
per cent. of the seats remaining (if any), after reservation
H
182 SUPREME COURT REPORTS [2021] 2 S.C.R.

A of the seats for the Scheduled Tribes and the Scheduled
Castes :
Provided further that, the reservation for the persons
belonging to the Backward Class of Citizens in a Zilla
Parishad falling only partially in the Scheduled Areas shall
B be in accordance with the provisions of clause (c) :
Provided also that one-half of the total number of seats so
reserved shall be reserved for women belonging to the
category of Backward Class of Citizens:
(d) one-half (including the number of seats reserved for women
C belonging to the Scheduled Castes, Scheduled Tribes and the
category of Backward Class of Citizens) of the total number of
seats to be filled in by direct election in a Zilla Parishad shall be
reserved for women and such seats shall be allotted by rotation to
different electoral divisions in a Zilla Parishad.
D (3) The reservation of seats (other than the reservation for women)
under sub-section (2) shall cease to have effect on the expiration
of the period specified in Article 334 of the Constitution of India.”
(emphasis supplied)
4. We may straight away advert to the decision in K. Krishna
E
Murthy (supra). In paragraph 9 of the decision, this Court formulated
two questions for its consideration, the same read thus:
“9. In light of the submissions that have been paraphrased in the
subsequent paragraphs, the contentious issues in this case can be
framed in the following manner:
F
(i) Whether Article 243-D(6) and Article 243-T(6) are
constitutionally valid since they enable reservations in
favour of backward classes for the purpose of occupying
seats and chairperson positions in panchayats and
municipalities respectively?
G
(ii) Whether Article 243-D(4) and Article 243-T(4) are
constitutionally valid since they enable the reservation of
chairperson positions in panchayats and municipalities
respectively?”

H (emphasis supplied)
VIKAS KISHANRAO GAWALI v. STATE OF MAHARASHTRA 183
& ORS. [A.M. KHANWILKAR, J.]

5. As regards the discussion on the question of validity of A
reservation in favour of backward classes, the Court proceeded to
examine the same in paragraphs 58 to 67 of the reported decision. The
essence of the view expressed by the Constitution Bench on the said
question is that Articles 243-D(6) and 243-T(6) of the Constitution of
India are merely enabling provisions and it would be improper to strike
B
them down as violative of the equality clause. At the same time, the
Court noted that these provisions did not provide guidance on how to
identify the backward classes and neither do they specify any principle
for the quantum of such reservations. Instead, discretion has been
conferred on the State legislatures to design and confer reservation
benefits in favour of backward classes. While dealing with the provisions C
pertaining to reservations in favour of backward classes concerning the
States of Karnataka and Uttar Pradesh wherein the quantum of
reservation was 33 per cent and 27 per cent respectively, the Court
noted that objections can be raised even with regard to similar provisions
of some other State legislations. The real concern was about overbreadth
D
in the State legislations and while dealing with that aspect in paragraphs
60 to 63, the Court noted thus:
“60. There is no doubt in our minds that excessive and
disproportionate reservations provided by the State legislations
can indeed be the subject-matter of specific challenges before
the courts. However, the same does not justify the striking down E
of Articles 243-D(6) and 243-T(6) which are constitutional
provisions that enable reservations in favour of backward classes
in the first place. As far as the challenge against the various
State legislations is concerned, we were not provided with
adequate materials or argumentation that could help us to F
make a decision about the same. The identification of
backward classes for the purpose of reservations is an
executive function and as per the mandate of Article 340,
dedicated commissions need to be appointed to conduct a
rigorous empirical inquiry into the nature and implications
of backwardness. G

61. It is also incumbent upon the executive to ensure that
reservation policies are reviewed from time to time so as
to guard against overbreadth. In respect of the objections
against the Karnataka Panchayat Raj Act, 1993, all that we can
H
184 SUPREME COURT REPORTS [2021] 2 S.C.R.

A refer to is the Chinnappa Reddy Commission Report (1990) which
reflects the position as it existed twenty years ago. 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.
B 62. Similarly, in the case of the State of Uttar Pradesh, the claims
about the extent of the OBC population are based on the 1991
census. Reluctant as we are to leave these questions open, it
goes without saying that the petitioners are at liberty to raise
specific challenges against the State legislations if they can point
out flaws in the identification of backward classes with the help
C of updated empirical data.
63. As noted earlier, social and economic backwardness does not
necessarily coincide with political backwardness. In this respect,
the State Governments are well advised to reconfigure their
reservation policies, wherein the beneficiaries under
D Articles 243-D(6) and 243-T(6) need not necessarily be
coterminous with the Socially and Educationally Backward
Classes (SEBCs) [for the purpose of Article 15(4)] or even
the backward classes that are under represented in
government jobs [for the purpose of Article 16(4)]. It would
E 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
F policy-making with regard to reservations in local self-
government.”
(emphasis supplied)
6. Again, in paragraph 64, the Court noted about the absence of
G explicit constitutional guidance as to the quantum of reservation in favour
of backward classes in local self-government. For that, the thumb rule is
that of proportionate reservation. The Court hastened to add a word of
caution, which in, essence, is the declaration of the legal position that the
upper ceiling of 50 per cent (quantitative limitation) with respect to vertical
reservations in favour of SCs/STs/OBCs taken together should not be
H
VIKAS KISHANRAO GAWALI v. STATE OF MAHARASHTRA 185
& ORS. [A.M. KHANWILKAR, J.]

breached. This has been made amply clear and restated even in paragraph A
67 of the reported decision, which reads thus:
“67. In the recent decision reported as Union of India v. Rakesh
Kumar [(2010) 4 SCC 50 : (2010) 1 SCC (L&S) 961 : (2010) 1
Scale 281] this Court has explained why it may be necessary to
provide reservations in favour of the Scheduled Tribes that exceed B
50% of the seats in panchayats located in the Scheduled Areas.
However, such exceptional considerations cannot be
invoked when we are examining the quantum of
reservations in favour of backward classes for the purpose
of local bodies located in general areas. In such
circumstances, the vertical reservations in favour of SCs/ C
STs/OBCs cannot exceed the upper limit of 50% when
taken together. It is obvious that in order to adhere to this
upper ceiling, some of the States may have to modify their
legislations so as to reduce the quantum of the existing
quotas in favour of OBCs.” D
(emphasis supplied)
On that analysis, the Court in conclusion noted as follows:
“Conclusion
82. In view of the above, our conclusions are: E
(i) The nature and purpose of reservations in the context
of local self-government is considerably different from
that of higher education and public employment. In this
sense, Article 243-D and Article 243-T form a distinct
and independent constitutional basis for affirmative F
action and the principles that have been evolved in
relation to the reservation policies enabled by Articles
15(4) and 16(4) cannot be readily applied in the context
of local self-government. Even when made, they need
not be for a period corresponding to the period of
G
reservation for the purposes of Articles 15(4) and 16(4),
but can be much shorter.
(ii) Article 243-D(6) and Article 243-T(6) are
constitutionally valid since they are in the nature of
provisions which merely enable the State Legislatures
H
186 SUPREME COURT REPORTS [2021] 2 S.C.R.

A to reserve seats and chairperson posts in favour of
backward classes. Concerns about disproportionate
reservations should be raised by way of specific
challenges against the State legislations.
(iii) We are not in a position to examine the claims
B about overbreadth in the quantum of reservations
provided for OBCs under the impugned State
legislations since there is no contemporaneous
empirical data. The onus is on the executive to
conduct a rigorous investigation into the patterns
of backwardness that act as barriers to political
C participation which are indeed quite different from
the patterns of disadvantages in the matter of
access to education and employment. As we have
considered and decided only the constitutional validity
of Articles 243-D(6) and 243-T(6), it will be open to
D the petitioners or any aggrieved party to challenge any
State legislation enacted in pursuance of the said
constitutional provisions before the High Court. We are
of the view that the identification of “backward
classes” under Article 243-D(6) and Article 243-
T(6) should be distinct from the identification of
E SEBCs for the purpose of Article 15(4) and that
of backward classes for the purpose of Article
16(4).
(iv) The upper ceiling of 50% vertical reservations in
favour of SCs/STs/OBCs should not be breached
F in the context of local self-government.
Exceptions can only be made in order to safeguard
the interests of the Scheduled Tribes in the matter
of their representation in panchayats located in
the Scheduled Areas.
G (v) The reservation of chairperson posts in the manner
contemplated by Articles 243-D(4) and 243-T(4) is
constitutionally valid. These chairperson posts cannot
be equated with solitary posts in the context of public
employment.”
H (emphasis supplied)
VIKAS KISHANRAO GAWALI v. STATE OF MAHARASHTRA 187
& ORS. [A.M. KHANWILKAR, J.]

7. On a fair reading of the exposition in the reported decision, A
what follows is that the reservation for OBCs is only a “statutory”
dispensation to be provided by the State legislations unlike the
“constitutional” reservation regarding SCs/STs which is linked to the
proportion of population. As regards the State legislations providing for
reservation of seats in respect of OBCs, it must ensure that in no case
B
the aggregate vertical reservation in respect of SCs/STs/OBCs taken
together should exceed 50 per cent of the seats in the concerned local
bodies. In case, constitutional reservation provided for SCs and STs were
to consume the entire 50 per cent of seats in the concerned local bodies
and in some cases in scheduled area even beyond 50 per cent, in respect
of such local bodies, the question of providing further reservation to C
OBCs would not arise at all. To put it differently, the quantum of reservation
for OBCs ought to be local body specific and be so provisioned to ensure
that it does not exceed the quantitative limitation of 50 per cent
(aggregate) of vertical reservation of seats for SCs/STs/OBCs taken
together.
D
8. Besides this inviolable quantitative limitation, the State Authorities
are obliged to fulfil other pre-conditions before reserving seats for OBCs
in the local bodies. The foremost requirement is to collate adequate
materials or documents that could help in identification of backward
classes for the purpose of reservation by conducting a contemporaneous
rigorous empirical inquiry into the nature and implications of backwardness E
in the concerned local bodies through an independent dedicated
Commission established for that purpose. Thus, the State legislations
cannot simply provide uniform and rigid quantum of reservation of seats
for OBCs in the local bodies across the State that too without a proper
enquiry into the nature and implications of backwardness by an F
independent Commission about the imperativeness of such reservation.
Further, it cannot be a static arrangement. It must be reviewed from
time to time so as not to violate the principle of overbreadth of such
reservation (which in itself is a relative concept and is dynamic). Besides,
it must be confined only to the extent it is proportionate and within the
quantitative limitation as is predicated by the Constitution Bench of this G
Court.
9. Notably, the Constitution Bench adverted to the fact that
provisions of most of the State legislations may require a relook, but left
the question regarding validity thereof open with liberty to raise specific
H
188 SUPREME COURT REPORTS [2021] 2 S.C.R.

A challenges thereto by pointing out flaws in the identification of the
backward classes in reference to the empirical data. Further, the
Constitution Bench expressed a sanguine hope that the concerned States
ought to take a fresh look at policy making with regard to reservations in
local self-government in light of the said decision, whilst ensuring that
such a policy adheres to the upper ceiling including by modifying their
B
legislations — so as to reduce the quantum of the existing quotas in
favour of OBCs and make it realistic and measurable on objective
parameters.
10. Despite this declaration of law and general observations cum
directions issued to all the States on the subject matter, the legislature of
C the State of Maharashtra did not take a relook at the existing provisions
which fell foul of the law declared by the Constitution Bench of this
Court. As a matter of fact, couple of writ petitions6 came to be filed in
the Bombay High Court in which solemn assurance was given on behalf
of the State of Maharashtra that necessary corrective measures in light
D of the decision of this Court, will be taken in right earnest. The situation,
however, remained unchanged.
11. As a matter of fact, no material is forthcoming as to on what
basis the quantum of reservation for OBCs was fixed at 27 per cent,
when it was inserted by way of amendment in 1994. Indeed, when the
E amendment was effected in 1994, there was no guideline in existence
regarding the modality of fixing the limits of reserved seats for OBCs as
noted in the decision of the Constitution Bench in K. Krishna Murthy
(supra). After that decision, however, it was imperative for the State to
set up a dedicated Commission to conduct contemporaneous rigorous
empirical inquiry into the nature and implications of backwardness and
F on the basis of recommendations of that Commission take follow up
steps including to amend the existing statutory dispensation, such as to
amend Section 12(2)(c) of the 1961 Act. There is nothing on record that
such a dedicated Commission had been set up until now. On the other
hand, the stand taken by the State Government on affidavit, before this
G Court, would reveal that requisite information for undertaking such
empirical inquiry has not been made available to it by the Union of India.
In light of that stand of the State Government, it is unfathomable as to
how the respondents can justify the notifications issued by the State
Election Commission to reserve seats for OBCs in the concerned local
6
H W.P. (Civil) No.6676 of 2016 and W.P. (Civil) No.5333 of 2018
VIKAS KISHANRAO GAWALI v. STATE OF MAHARASHTRA 189
& ORS. [A.M. KHANWILKAR, J.]

bodies in respect of which elections have been held in the year December A
2019/January 2020, which notifications have been challenged by way of
present writ petitions. This Court had allowed the elections to proceed
subject to the outcome of the present writ petitions.
12. Be that as it may, it is indisputable that the triple test/conditions
required to be complied by the State before reserving seats in the local B
bodies for OBCs has not been done so far. To wit, (1) to set up a dedicated
Commission to conduct contemporaneous rigorous empirical inquiry into
the nature and implications of the backwardness qua local bodies, within
the State; (2) 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 (3) in any case C
such reservation shall not exceed aggregate of 50 per cent of the total
seats reserved in favour of SCs/STs/OBCs taken together. In a given
local body, the space for providing such reservation in favour of OBCs
may be available at the time of issuing election programme (notifications).
However, that could be notified only upon fulfilling the aforementioned D
pre-conditions. Admittedly, the first step of establishing dedicated
Commission to undertake rigorous empirical inquiry itself remains a
mirage. To put it differently, it will not be open to respondents to justify
the reservation for OBCs without fulfilling the triple test, referred to
above.
E
13. As regards Section 12(2)(c) of the 1961 Act inserted in 1994,
the plain language does give an impression that uniform and rigid quantum
of 27 per cent of the total seats across the State need to be set apart by
way of reservation in favour of OBCs. In light of the dictum of the
Constitution Bench, such a rigid provision cannot be sustained much less
having uniform application to all the local bodies within the State. Instead, F
contemporaneous empirical inquiry must be undertaken to identify the
quantum qua local body or local body specific.
14. In our opinion, the provision in the form of Section 12(2)(c)
can be saved by reading it down, to mean that reservation in favour of
OBCs in the concerned local bodies may be notified to the extent, that it G
does not exceed 50 per cent of the total seats reserved in favour of SCs/
STs/OBCs taken together. In other words, the expression “shall be”
preceding 27 per cent occurring in Section 12(2)(c), be construed as
“may be” including to mean that reservation for OBCs may be up to 27
per cent but subject to the outer limit of 50 per cent aggregate in favour H
190 SUPREME COURT REPORTS [2021] 2 S.C.R.

A of SCs/STs/OBCs taken together, as enunciated by the Constitution
Bench of this Court. On such interpretation, Section 12(2)(c) can be
saved and at the same time, the law declared by the Constitution Bench
of this Court can be effectuated in its letter and spirit.
15. The argument of the respondent-State that the reservations in
B favour of OBCs must be linked to population, is very wide and tenuous.
That plea if countenanced, will be in the teeth of the dictum of the
Constitution Bench of this Court wherein it has been noted and rejected.
The Court has expounded about the distinction in the matter of reservation
in favour of SCs and STs on the one hand, which is a “constitutional”
reservation linked to population unlike in the case of OBCs which is a
C “statutory” dispensation. Therefore, the latter reservation for OBCs must
be proportionate in the context of nature and implications of backwardness
and in any case, is permissible only to the extent it does not exceed the
aggregate of 50 per cent of the total seats in the local bodies reserved
for SCs/STs/OBCs taken together.
D 16. Indeed, this Court had allowed the State Election Commission
to conduct elections on the basis of old dispensation in terms of orders
dated 28.08.2019, 07.11.2019 and 13.12.2019, by recording prima facie
view as noted in the order dated 18.12.2019. However, it was made
amply clear that the elections in respect of five districts (Nagpur, Washim,
E Akola, Dhule and Nandurbar) were allowed to proceed subject to the
outcome of present writ petition(s) questioning the validity of Section
12(2)(c) of the 1961 Act. Thus understood, the respondents cannot take
benefit of the prima facie observations to repel the challenge to the old
dispensation being continued despite the decision of the Constitution
Bench of this Court and more particularly, to the notifications reserving
F seats for OBC candidates exceeding the quantitative limitation of
aggregate 50 per cent of total seats in the local bodies concerned.
17. In light of the finding recorded hitherto (that no inquiry much
less contemporaneous rigorous empirical inquiry into the nature and
implications of backwardness by a dedicate Commission established by
G the State for the purpose has been undertaken), it is not open to the
State to fall back on Section 12(2)(c) as enacted in 1994. That provision,
as aforementioned, is an enabling provision and would become functional
and operational only upon fulfilling triple test as specified by the
Constitution Bench of this Court. That is the sine qua non or the
H quintessence for exercise of power to reserve seats for OBCs in the
VIKAS KISHANRAO GAWALI v. STATE OF MAHARASHTRA 191
& ORS. [A.M. KHANWILKAR, J.]

local bodies. Indeed, the exercise of power to reserve seats for OBCs A
springs from Section 12(2)(c) of the 1961 Act, but that is hedged by
conditions and limitations specified by the Constitution Bench of this
Court and would not get ignited until such time.
18. Thus understood, the impugned notifications issued by the State
Election Commission reserving seats for OBCs in the concerned local B
bodies, suffer from the vice of foundational jurisdictional error. The
impugned notification(s) to the extent it provides for reservation for OBCs
in the concerned local bodies, is, therefore, void and without authority of
law.
19. A priori, the elections conducted by the State Election C
Commission on the basis of such notifications concerning reserved OBC
seats alone are vitiated and must be regarded as non est in the eyes of
law from its inception in the wake of declaration of law in that regard by
the Constitution Bench of this Court. The fact that it will impact large
number of seats throughout the five districts or elsewhere where such
elections are conducted in 2019/2020, would make no difference. For, D
such reservation was not permissible in law unless the essential steps,
as propounded by the Constitution Bench of this Court, had been taken
before issuing the election notifications, that too only to the extent of
quantitative limitation. This position would apply in full measure, to all
elections conducted in respect of reserved OBC seats by the State E
Election Commission duly notifying that the same will be subject to the
outcome of these writ petitions. The State Election Commission must
proceed to take follow up steps and notify elections for seats vacated in
terms of this decision for being filled up by open/general category
candidates for the remainder tenure of the concerned Gram Panchayats
and Samitis. We are inclined to take this view as it is not possible to F
identify which of the reserved seat for OBCs in the concerned local
body would fall foul of the law declared by the Constitution Bench of
this Court, amongst the total seats reserved for OBCs.
20. The respondent-State through learned counsel had urged that
this Court ought not to entertain the present writ petitions as writ petitions7 G
were still pending before the High Court for the same relief. We are not
impressed by this hyper technical objection. It is true that petitioners in
two writ petitions had first approached the High Court, but still the issue
7
W.P. (Civil) No. 2756 of 2019; W.P. (Civil) No. 2893 of 2019 and W.P. (Civil) No.
9159 of 2020 H
192 SUPREME COURT REPORTS [2021] 2 S.C.R.

A under consideration needs to be answered at the instance of petitioners
in other two writ petitions praying for the same reliefs. Indeed, it would
have been possible for us to request the High Court to decide the issue
in the first instance but as the matter essentially pertains to the width of
declaration and directions given by the Constitution Bench of this Court
in K. Krishna Murthy (supra) and its implementation in its letter and
B
spirit, we deem it appropriate to answer the issue under consideration.
21. It has been faintly suggested by the respondent-State in its
written submission that the writ petition may be set down for further
hearing. However, we fail to fathom why such a plea has been put forth
especially when the State has already filed a consolidated affidavit in
C this Court, apart from the comprehensive written submissions filed after
closure of oral arguments. In our opinion, no fruitful purpose will be
served by showing that indulgence. For, the matter is capable of and is
being disposed of on the basis of undisputed fact that before instructing
the State Election Commission to reserve seats for OBC groups in the
D local bodies, no attempt was made by the State Government to set up a
dedicated Commission to conduct contemporaneous rigorous empirical
inquiry into the nature and implications of backwardness, and then to act
upon the report of the Commission. That fact is reinforced from the
consolidated affidavit filed by the respondent-State in SLP (Civil) No.
33904 of 2017, which was the lead matter until it was disposed of on
E 17.02.2021, after analogous hearing with the present writ petitions. That
consolidated affidavit was filed pursuant to the directions given by this
Court vide order dated 19.01.2021, which
reads thus:

F “Heard learned counsel for the parties. We direct the Respondent-
State to file a consolidated affidavit dealing with the issues raised
in each of these proceedings including in the form of interlocutory
application(s) to be served on learned counsel appearing for the
concerned petitioners/applicants within three weeks from today.

G We clarify that the consolidated affidavit will be a common
affidavit used in the concerned petitioners and application(s)
as the case may be.
List on 11.02.2021.”
(emphasis supplied)
H
VIKAS KISHANRAO GAWALI v. STATE OF MAHARASHTRA 193
& ORS. [A.M. KHANWILKAR, J.]

Accordingly, the consolidated affidavit dated 04.02.2021 came to A
be filed by the State duly sworn by the Deputy Commissioner
(Establishment), which reads thus:
“COUNTER AFFIDAVIT ON BEHALF OF RESPONDENT
I, D.D. Shinde age 55 years, Occ. Service, presently working as
B
Deputy Commissioner (Establishment) in the office of Divisional
Commissioner, Nashik, Maharashtra, do hereby submit on solemn
affirmation as under that:-
1. I am the authorized officer of the respondent in the present
Special Leave Petition. I am also authorized to file Counter
Affidavit on behalf of Respondent as such I am well conversant C
with the facts and circumstances of the case and hence I am
competent and authorized to swear this Counter Affidavit on behalf
of the Respondent.
2. I have gone through the contents of the present Special Leave
Petition in reply thereto the answering Respondent seeks to file D
this Counter Affidavit in order to oppose the averments and
contentions of the Special Leave Petition with liberty of this
Hon’ble Court to file a further Counter Affidavit as and when
necessary and with the permission of this Hon’ble Court.
3. The State Government has filed affidavits dated 05.11.2019 E
and 13.03.2020, and I repeat and reiterate the contents of the
same as if the same have been set out herein, in extenso. I say
that I am filing this Affidavit in compliance of the directions of the
Hon’ble Court in its order dated 19.01.2021, passed in the above
Special Leave Petition. F
4. I say that the elections were held to the Zilla Parishads of five
districts in Maharashtra, namely Nagpur, Washim, Akola, Dhule
and Nandurbar in December 2019/January 2020, pursuant to the
orders passed by this Hon’ble Court. In all the aforesaid districts,
the reservation exceeded 50%. It is the contention of the Petitioners G
that in all the aforesaid districts the reservation could not have
exceeded 50% as it was the upper limit as set out in the judgments
of Indra Sawhney vs. Union of India reported in (1992) 3
SCC 217 and the judgment of K. Krushnamurthy vs. Union of
India reported in (2010) 7 SCC 202. The only issue that
H
194 SUPREME COURT REPORTS [2021] 2 S.C.R.

A essentially remains for consideration of this Hon’ble Court, in all
these matters is whether the reservation in all the aforesaid five
districts could have exceeded 50%.
5. I repeat and reiterate that the elections held in December 2019/
January 2020 have been held on the basis of the old dispensation,
B but for future elections, the State Government will have to provide
category wise breakup of population and in particular regarding
Backward Class Category (BCC), as the information can be
provided only by the Central Government. It is therefore submitted
that, I.A. No.188324/2019 be allowed and the Registrar General
of India, Ministry of Home Affairs, Government of India and the
C Secretary, Ministry of Social Justice and Welfare be added as
party respondents in the aforesaid Special Leave Petitions. It is
further submitted that, I.A. No.188318/2019 be allowed and the
Registrar General of India, Ministry of Home Affairs, Government
of India and the Secretary, Ministry of Social Justice and Welfare
D be directed to make available the data of Socio-Economic Census
2011, to the extent only relating to the caste of the citizens of
Rural Maharashtra, to enable the Government of Maharashtra to
calculate population belonging to castes that make a part of
Backward Classes of Citizens (BCC) in Maharashtra.
E 6. I repeat and reiterate with regard to the decision of the
Constitution Bench of this Hon’ble Court in K. Krishnamurthy
(supra), and in particular paragraph no.83(iv) thereof, it is submitted
with respect that, a reading of paragraphs no.59, 64, 66 and 67
thereof, create a doubt as to whether 50% vertical reservations
referred to in paragraph no.82(iv) can be regarded as unalterable.
F A breakup of the figures in respect of the five districts (mentioned
in the order dated 18.12.2019) show that if the direction given in
paragraph no.82(iv) are to be strictly complied with, it may not be
possible to give effect thereto, at least in respect of Dhule and
Nandurbar districts which have high tribal population.
G 7. I submit that in the case of K. Krushna Murthy (Supra) the
Hon’ble Constitution Bench of this Hon’ble Court lays down that
the nature and purpose of reservations in the context of local self-
government is considerably different from that of higher education
and public employment. It further lays down that Article 243-D
H and Article 243-T form a distinct and independent constitutional
VIKAS KISHANRAO GAWALI v. STATE OF MAHARASHTRA 195
& ORS. [A.M. KHANWILKAR, J.]

basis for affirmative action and the principle that have been evolved A
in relation to the reservation policies enabled by Articles 15(4)
and 16(4) of the Constitution, cannot be readily applied in the
context of local self-government.
8. I submit that in the absence of explicit constitutional guidance
as to the quantum of reservation in favour of backward classes in B
local self-government, the rule of thumb is that of ‘proportionate
reservation’. Admittedly, reservations in excess of 50% do exist
in some exceptional cases, when it comes to the domain of political
representation, which is the outcome of exceptional considerations
in relation to these areas. Similarly, vertical reservations in excess
of 50% are permissible in the composition of local self-government C
institutions located in the Fifth Schedule Areas. I submit that in
the judgment of Union of India v. Rakesh Kumar reported in
(2010) 4 SCC 50, this Hon’ble Court has explained why it may
be necessary to provide reservations in favour of the Scheduled
Tribes that exceed 50% of the seats in local self-governments D
located in the Scheduled Area.
9. With regard to the elections held in December 2019/January
2020, in Nandurbar district, 44 out of 56 seats were reserved for
Scheduled Tribes (ST) category which was in keeping with the
population ratio. This itself consumed 50% upper limit provided E
by the Constitution Bench of this Hon’ble Court, leaving 1
reservation for Scheduled Caste (SC) Category. In respect of
elections held in December 2019/January 2020, in Dhule district,
23 out of 56 seats were reserved for Scheduled Tribes (ST)
category which was in keeping with the population ratio. This
itself consumed 50% upper limit provided by the Constitution Bench F
of this Hon’ble Court, leaving 3 reservation for Scheduled Caste
(SC) Category. In Dhule District the talukas of Saktri and Shirpur
are partly ‘Scheduled Areas’. In Nandurbar District, the talukas
of Navapur, Taloda, Akkalkuwa and Akrani are fully ‘Scheduled
Areas’ and the blocks of Nandurbar and Shahda are partly G
‘Scheduled Areas’. I say that both Dhule and Nandurbar Districts,
being partly ‘Scheduled Areas’ would fall within the exceptions
laid down in the case of Indra Sawhney (Supra). Further, the
decision of Indra Sawhney (Supra) was given in respect of
reservation measures enabled by Article 16(4) of the Constitution.
H
196 SUPREME COURT REPORTS [2021] 2 S.C.R.

A The principles of reservation which are applicable for public
employment and for admission to educational institutions cannot
be readily applied in respect of a reservation policy made to protect
the interests of the Scheduled Tribes by assuring them of majority
of reservation in Scheduled Areas. Further, the case of Indra
Sawhney (Supra) reveals that though an upper limit of 50% was
B
prescribed for reservations in public employment, the said decision
recognizes the need of exceptional treatment in some
circumstances. The case of Indra Sawhney (supra) prescribes
an upper limit of 50% (in paragraph 806 of the judgment) because
Article 16(4) deals with ‘adequate representation’ and not
C ‘proportionate representation’. Hence, the elections held in
December 2019/January 2020 ought not to set aside for the districts
of Dhule and Nandurbar districts.
10. In any event, as set out in detail in the Affidavit dated
13.3.2020, I say that the State Government is unable to
D provide category wise breakup of population and in
particular regarding Backward Class Category (BCC), as
that information can be provided only by the Central
Government and the same is not forthcoming. It is important
that the data of Socio-Economic to the extent only of field
relating to the caste of the citizens of Rural Maharashtra,
E be provided to the State Government by the Central
Government, so as to enable the State Government to
calculate population belonging to castes that make a part
of Backward Caste of Citizens (BCC) in Maharashtra. With
regard to the elections held in December 2019/January 2020, in
F Nagpur, Washim, and Akola districts, the reservations exceeded
50% of the seats, only by 6% to 8% and ought not to be set aside
by this Hon’ble Court.
11. I repeat and reiterate that it is important that the data of Socio-
Economic to the extent only of field relating to the caste of the
G citizens of Rural Maharashtra, be provided to the State Government
by the Central Government, so as to enable the State Government
to calculate population belonging to castes that make a part of
Backward Caste of Citizens (BCC) in Maharashtra.
12. Considering the facts and circumstances of the case in hand,
H the special leave petition deserves to be dismissed.
VIKAS KISHANRAO GAWALI v. STATE OF MAHARASHTRA 197
& ORS. [A.M. KHANWILKAR, J.]

13. That no new additional facts or documents, which are not part A
of the record are stated or annexed in the counter affidavit.
Hence this Counter Affidavit.
(Deponent)
Drawn by: Sd/- B
Rahul Chitnis, Advocate. (D.D. Shinde)”
(emphasis supplied)

22. As matter of fact, this affidavit plainly concedes that in case C
of some local bodies, the reservation has far exceeded 50 per cent with
nominal seats for general category. At this stage, it may be relevant to
mention that the consolidated affidavit refers to the previous affidavit(s)
dated 5.11.2019 and 13.03.2020 which, however, do not contain any
other statement, or any additional information, requiring scrutiny in the
D
context of the issues answered in this decision. The consolidated affidavit
also refers to three interlocutory applications filed in the disposed of
SLP (Civil) Nos. 33904-33910 of 2017. IA No.188324 of 2019 was filed
for direction to allow impleadment of Registrar General of India, Ministry
of Home Affairs, Government of India and Secretary, Ministry of Social
Justice and Welfare as party respondents in the SLP. That was because E
the State had sought directions against that party to furnish census data
on the basis of which analysis could be done by the State for providing
reservation to OBCs in the local bodies, in the elections due in 2019/
2020. That relief was claimed by the State in IA No.188318 of 2019.
Since the said elections are completed, the State is free to pursue with
F
the Union of India for getting requisite information which can be then
made available to the dedicated Commission to be established by it for
conducting a contemporaneous rigorous empirical inquiry into the nature
and implications of backwardness of the concerned groups. As regards
IA No.108915 of 2019 referred to in the consolidated affidavit, the relief
claimed was to defer the impending elections in the concerned Zilla G
Parishads and Panchayat Samitis. Those elections having been
completed in 2019/2020, obviously the relief as claimed is worked out.
We, therefore, fail to understand as to why the State Government wants
further hearing of the matter on such flimsy and specious grounds. To
observe sobriety, we say no more.
H
198 SUPREME COURT REPORTS [2021] 2 S.C.R.

A 23. We, however, appreciate the stand taken by the State Election
Commission which is in conformity with the exposition of the Constitution
Bench of this Court; and that it had issued impugned notifications by
making it amply clear to all concerned that the elections were being
conducted as directed by this Court and would be subject to the outcome
of the present writ petitions. The elections were held only after this
B
Court directed the State Election Commission to ensure that the elections
in the concerned Zilla Parishads and Panchayat Samitis of as many
as five districts (out of 36 districts) of the State, were not being conducted
even after more than two years from the expiry of term of the outgoing
councillors/members of the concerned local bodies.
C 24. The State Election Commission had invited our attention to
the fact that, provision similar to Section 12(2)(c) of the 1961 Act regarding
reservation for OBCs finds place in other State enactments8 concerning
the establishment of Village Panchayat, Municipal Council, Nagar
Panchayat, Corporation, etc. Needless to observe that the view taken
D in this judgment would apply with full force to the interpretation and
application of the provisions of the stated Act(s) and the State Authorities
must immediately move into action to take corrective and follow up
measures in right earnest including to ensure that future elections to the
concerned local bodies are conducted strictly in conformity with the
exposition of this Court in K. Krishna Murthy (supra), for providing
E reservation in favour of OBCs.
25. In conclusion, we hold that Section 12(2)(c) of the 1961 Act is
an enabling provision and needs to be read down to mean that it may be
invoked only upon complying with the triple conditions (mentioned in
paragraph 12 above) as specified by the Constitution Bench of this Court,
F before notifying the seats as reserved for OBC category in the concerned
local bodies. Further, we quash and set aside the impugned notifications
to the extent they provide for reservation of seats for OBCs being void
and non est in law including the follow up actions taken on that basis. In
other words, election results of OBC candidates which had been made
G subject to the outcome of these writ petitions including so notified in the
concerned election programme issued by the State Election Commission,

8
(1) The Maharashtra Village Panchayats Act, 1959 – Section 10(2)(c)
(2) Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships
Act, 1965 – Sections 9(2)(d) and 341(B)(4)
H (3) The Maharashtra Municipal Corporations Act, 1949 – Section 5A(1)(c)
VIKAS KISHANRAO GAWALI v. STATE OF MAHARASHTRA 199
& ORS. [A.M. KHANWILKAR, J.]

are declared as non est in law and the vacancy of seat(s) caused on A
account of this declaration be forthwith filled up by the State Election
Commission with general/open candidate(s) for the remainder term of
the concerned local bodies, by issuing notification in that regard.
26. As a consequence of this declaration and direction, all acts
done and decisions taken by the concerned local bodies due to participation B
of members (OBC candidates) who have vacated seats in terms of this
decision, shall not be affected in any manner. For, they be deemed to
have vacated their seat upon pronouncement of this judgment,
prospectively. This direction is being issued in exercise of plenary power
under Article 142 of the Constitution of India to do complete justice.
C
27. It was urged that this Court ought not to exercise plenary
power under Article 142 and abjure from disturbing the completed
elections. However, we are not impressed with this contention because
participation in the elections conducted since December 2019 to the
concerned local bodies across the State of Maharashtra was on clear
understanding that the results of the reserved seats for OBCs would be D
subject to the outcome of these writ petitions. That was clearly notified
by the State Election Commission in the election programme published
by it at the relevant time, in consonance with the directions given by this
Court vide interim orders. Therefore, the reliefs as claimed and being
granted in terms of this judgment, are in consonance with liberty given E
by this Court.
28. Accordingly, these writ petitions must partly succeed. The
challenge to the validity of Section 12(2)(c) of the 1961 Act is negatived.
Instead, that provision is being read down to mean that reservation in
favour of OBCs in the concerned local bodies can be notified to the F
extent that it does not exceed aggregate 50 per cent of the total seats
reserved in favour of SCs/STs/OBCs taken together. In other words,
the expression “shall be” preceding 27 per cent occurring in Section
12(2)(c), be construed as “may be” including to mean that reservation
for OBCs may be up to 27 per cent but subject to the outer limit of 50
per cent aggregate in favour of SCs/STs/OBCs taken together, as G
enunciated by the Constitution Bench of this Court. However, the
impugned notifications/orders dated 27.7.2018 and 14.2.2020 and all other
similar notifications issued by the State Election Commission during the
pendency of these writ petitions mentioning that the elections to the
concerned local bodies were being held subject to the outcome of these H
200 SUPREME COURT REPORTS [2021] 2 S.C.R.

A writ petitions, are quashed and set aside to the extent of providing
reservation of seats in the concerned local bodies for OBCs. As a
consequence, follow up steps taken on the basis of such notifications
including the declaration of results of the candidates against the reserved
OBC seats in the concerned local bodies, are declared non est in law;
and the seats are deemed to have been vacated forth with prospectively
B
by the concerned candidate(s) in terms of this judgment. The State
Election Commission shall take immediate steps to announce elections
in respect of such vacated seats, of the concerned local bodies, not later
than two weeks from today, to be filled by general/open category
candidates for the remainder term of the Panchayat/Samitis. Ordered
C accordingly.
The writ petitions are disposed of in the above terms. No order as
to costs.
All pending applications also stand disposed of.

D
Ankit Gyan Writ petitions disposed of.

E

F

G

H