'No Bar on Polls If Overall Quota Doesn't Go Over 50%': What the Telangana HC Said in Its Order

Hyderabad: The Telangana high court, which had on October 9 stayed a government order granting 42% reservation to backward classes in elections to rural local bodies, has said that the stay in no way barred the conduct of elections provided the overall reservations for all categories did not breach the 50% ceiling.

Citing various flaws in the election process set in motion by the Telangana government, a division bench of the court had said in its order, "We are, therefore, of the prima facie view that the respondents/state have failed to adhere to the criteria of 50% upper ceiling as laid down by the Supreme Court by providing 42% reservation to Other Backward Classes in the local bodies, thereby breaching the ceiling of 50% to a total of 67% reservation in local bodies. Apart from 42% reservation to the BCs, the state government proposed 15% for Scheduled Castes and 10% to Scheduled Tribes, to make it 67% put together for all reserved categories."

The court was dealing with nearly 30 petitions, both for and against the 42% quota for BCs in the upcoming elections.

The interim order of the division bench comprising Chief Justice Aparesh Kumar Singh and Justice G.M. Mohiuddin which has been uploaded on the website of the court today said it had only stayed the government order 9 that provided 42% reservations to the BCs and government order numbers 41 and 42 which laid down "guidelines and procedures for fixation of reservations in respect of elections to Mandal Praja Parishads and Zilla Praja Parishads, and elections to Gram Panchayats respectively, under the Telangana Panchayat Raj Act, 2018".

"Since the impugned notification [notification issued by the State Election Commission on October 9] providing reservation up to 42% has been stayed by this court, the State Election Commission would notify the proportionate seats as open category seats and proceed with the elections to the local bodies," the bench said in its 30-page order.

Also read: Explainer: Who Does the 50% Ceiling on Reservations Really Protect?

The "proportionate seats" referred to 17% seats given by the state government "over and above 25% existing seats for BCs" in local bodies. In the previous term of local bodies, 25% seats were reserved for BCs, 15% for Scheduled Castes and 10% for Scheduled Tribes, making it 50% in aggregate.

The court allowed four weeks time to the state to file the counter affidavit and two weeks thereafter to the petitioners to file reply affidavits. The writ petitions were posted for December 3 for hearing.

Meanwhile, chief minister A. Revanth Reddy held a video conference today with senior Supreme Court advocate and Rajya Sabha member Abhishek Manu Singhvi who had argued the court case on behalf of the state government. The two discussed filing a Special Leave Petition in the Supreme Court against the order of the high court on Monday. Deputy chief minister Mallu Bhatti Vikramarka, the Telangana All India Congress Committee in-charge Meenakshi Natarajan, Telangana Congress committee president B. Mahesh Kumar Goud and Backward Classes minister Ponnam Prabhakar also participated.

In pronouncing the judgement, the bench relied on the order of Supreme Court in Rahul Ramesh Wagh versus State of Maharashtra (2022) case wherein the apex court had prohibited the State Election Commission (SEC) from proceeding with the election programme in respect of reserved seats for the OBC category in the local bodies after the Maharashtra Ordinance Number 3 of 2021 was issued by the state government to overcome the ceiling limit of 50%.

The court also took note of the Supreme Court judgement in Vikas Kishanrao Gawali versus State of Maharashtra (2021) which propounded the "triple test" having three components. One crucial component of this ruling is that if the 50% reservation is not complied with, no State Election Commission shall notify the election and even if it is notified, it shall be ignored.

In the case of the local body elections in Telangana, the SEC had released the schedule for polls on September 29, a day ahead of the deadline set by the high court to complete the polls, and notified polls on October 9 which also marked the first day of receipt of nominations from contesting candidates.

Referring to the observation of the Supreme Court in the Rahul Ramesh Wagh case, wherein the apex court said that in case the state or Union Territory is not in a position to fulfil the triple-test requirement and the election to any of its local body cannot be postponed beyond the statutory period, the concerned SEC ought to notify proportionate seats as open category seats and proceed with the elections of local bodies.

Here, the statutory period fixed by the court for Telangana is September 30. The date was fixed by the high court after several cases were filed complaining about a delay of 17 months in elections to the local bodies in Telangana. The Union government had also stopped releasing Fifteenth Finance Commission funds, totalling more than Rs. 2,000 crore, to the Mandal and Zilla Parishads and gram panchayats in the absence of elected bodies.

On the application of the Vikas Kishanrao Gavali case to elections in Telangana, the division bench held that it is indisputable that the triple test/conditions required to be complied with by the state before reserving seats in the local bodies for OBCs "has not been done so far".

The triple tests involved setting up a dedicated commission to fix reservations, conduct of contemporaneous empirical inquiry and proportionate reservations for BCs in the context of nature and implications of backwardness.

"Thus understood, the impugned notifications issued by the SEC reserving seats for BCs in the local bodies suffer from the vice of foundational jurisdictional error," the court said.

"As and when the formalities of the triple test are completed, that can be reckoned for future elections to be held thereafter," it added.

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