The identification of backward classes for reservation must be distinct and based on rigorous inquiry, not a uniform formula, as per Supreme Court guidelines.

ORDER :

SUNITA AGARWAL, CJ 

1. The present petition has been filed in the nature of public interest litigation challenging the validity of the Gujarat Local Authorities Laws (Amendment) Act, 2023 and the subsequent amendments made in the Rules / enactment pursuant to the same being ultra vires to the Constitution of India on the premise that the said amendments are contrary to the decision of the Hon'ble Apex Court in the case of K. Krishna Murthy (Dr.) and others versus Union of India and another reported in (2010) 7 SCC 202 read with the judgment of the Hon'ble Apex Court in the case of Vikas Kishanrao Gawali versus State of Maharashtra and others reported in (2021) 6 SCC 73, which laid down guidelines to provide the manner in which the reservation as contemplated under Article 243-D(6) and Article 243-T(6) can be implemented.

2. Placing the statement of objects and reasons of the bill which has led to passing of the impugned enactment, it is sought to be submitted by Mr. Harsh K. Raval, learned advocate appearing for the applicant that though a Commission as contemplated under the decision of the Hon'ble Apex Court in the case K. Krishna Murthy (Dr.) and others (supra) was constituted but the reports / recommendations of the Commission submitted before the cabinet sub-committee were not looked into. There is an apprehension of the petitioner that the cabinet sub-committee overlooking the report of the Commission made its recommendation which has led to the presentation of the bill and passing of the impugned enactment.

3. Another apprehension raised by the petitioner is about the report of the Commission, which according to him has not been brought in the public domain. The contention is that the Commission was required to collect the contemporaneous empirical data to conduct a rigorous investigation into the patterns of backwardness that act as a barriers to political participation which may be quite different from the patterns of disadvantages in the matter of access to education and employment.

4. Based on the observation of the Hon'ble Apex Court in paragraph 82 in the case of K. Krishna Murthy (Dr.) and others (supra), it was argued that identification of “backward classes” under Article 243-D(6) and Article 243-T(6) should be distinct from identification of SEBCs (backward classes) for the purpose of Article 15(4) and that of backward classes for the purposes of Article 16(4). The contention is that in another decisions in the case of Vikas Kishanrao Gawali (supra), the Hon'ble Apex Court while taking note of the observations in K. Krishna Murthy (Dr.) and others (supra) had further elaborated and specified that 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 limit of 50 per cent (aggregate) of vertical reservation of seats for SCs / STs / OBCs taken together. As per the decisions of the Hon'ble Apex Court, proper inquiry into the nature and implication of backwardness by an independent Commission about the imperativeness of such reservation was required to be made.

5. It was argued that it was not open for the State legislation to simply provide uniform and rigid quantum of reservation of seats for OBCs in the local bodies across the State, without completing any such inquiry. The contentions is that as against the aforesaid decisions of the Hon'ble Apex Court, a uniform and standard formula has been applied to provide for reservation of seats for backward classes by increasing one-tenth of the total number of seats to 27% of total number of seats under various provisions of the Gujarat Provincial Municipal Corporations Act, 1949, the Gujarat Municipalities Act, 1963 and the Gujarat Panchayats Act, 1993.

6. Taking note of the above, we provide that the matter be brought to the notice of the learned Advocate General, who would be representing the State Government to bring the stand of the State on the record. The State Election Commi