Legal RoundUpWeekly Rewind

 


TOP STORY OF THE WEEK


Right to Abortion no longer a Constitutional right in the USA

In a far-reaching decision concerning American women’s right to abortion, the Supreme Court of the United States, has held that the Constitution of the United States does not confer any right to obtain abortions. The judgment decisively overrules the landmark SCOTUS ruling of Roe v. Wade, 1973 SCC OnLine US SC 20, which granted this constitutional right in the first place and also Planned Parenthood of Southeastern Pennsylvania v. Casey, 1994 SCC OnLine US SC 11 which upheld Roe. Furthermore, by this mandate the authority to regulate abortion is returned to the people and their elected representatives.

While Chief Justice Roberts agreed with the majority opinion that the viability line established by Roe and Casey should be discarded, he however took a “measured course” and said that the right should extend far enough to ensure a reasonable opportunity to choose but need not extend any further certainly not all the way to viability.

However, the dissenting opinion termed the decision to be catastrophic and stated that the majority has given the ruling out of despise and has substituted a rule by judges for the rule of law. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other,

The dissent concluded with the following words,

“With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.”

Detailed Analysis: SCOTUS| United States’ Constitution does not confer any right to abortion; Roe v. Wade overruled after 49 years

Also read: “With sorrow—for this Court, but more, for the many mil­lions of American women…we dissent.” Read SCOTUS dissent on Right to Abortion case 


APPOINTMENTS AND TRANSFERS


6 High Courts get new Chiefs

6 High Courts have got new Chief Justices. While Telangana High Court’s current Chief, Justice Satish Chandra Sharma will now be assuming the charge of the Chief Justice of the Delhi High Court, 5 judges have been promoted to be the Chief Justices of Gauhati, Rajasthan, Uttaranchal, Himachal Pradesh and Telangana High Courts.

Full Story: 5 Appointments and one Transfer lead to 6 High Courts getting new Chiefs


SUPREME COURT


Clean Chit to PM Modi in 2002 Gujarat Riots

Supreme Court has dismissed Zakia Jafri’ss plea challenging the clean chit given to Prime Minister Narendra Modi by the Special Investigation Team in 2002 Gujarat riots case. The Court observed that no fault can be found with the approach of the SIT in submitting final report back in 2012, which is backed by firm logic, expositing analytical mind and dealing with all aspects objectively for discarding the allegations regarding larger criminal conspiracy (at the highest level) for causing and precipitating mass violence across the State against the minority community.

Detailed Analysis: “SIT Officials have come out with flying colours unscathed despite all odds”; Read SC’s key observations while upholding SIT’s clean chit to PM Modi in 2002 Gujarat riots

Man set free in a 28-year-old honour killing case

In 1994, a young couple belonging to different castes was found hanging from a tree after having gone missing for days. The love affair did not sit well with the girl’s father and uncle. It was alleged her uncle had killed both of them and had kept the bodies in the house for 3 days, after which he had taken the bodies to the cashew nursery and had hung them on a cashew tree to give it the shape of them having committed suicide.

Noting that the prosecution had miserably failed to bring home the charges levelled against the accused beyond reasonable doubt, the Court observed that conviction could not be based on a very weak kind of evidence of extra judicial confession by the co-accused and the theory of “Last seen together” propounded by the prime witness.

Detailed Analysis: No conviction based on ‘last seen together’ theory when possibility of suicidal death not ruled out; SC sets man free in a 28-year-old honour killing case


HIGH COURTS


Bombay High Court| Unmarried major Daughter’s right to maintenance

In a case where a father had refused to maintain his unmarried major daughter on the ground that the daughter was earning Rs.72 lakhs to Rs.80 lakhs by merely posting photographs on Instagram, the Bombay High Court has held that the father had the responsibility to maintain his daughter and her Instagram biography is not enough to prove that she has independent and sufficient income.

The Court remarked,

it is a well-known fact that it is the habit of the youth of today to project a glossy picture and post the same in the social media though its contents may not always be true.”

Detailed Analysis: Bombay High Court| Unmarried major Daughter entitled for maintenance from her father; Glossy life on Instagram does not prove independent and sufficient income

Orissa High Court | Vigilance Department vis-à-vis Right to Information

The Orissa High Court has held that the Government of Odisha cannot deny information pertaining to the Vigilance Department involving allegations of corruption and human rights violations, and other information that does not touch upon any of the sensitive and confidential activities undertaken by the Vigilance Department. The Court held that if under the RTI Act disclosure is the norm, and non-disclosure is the exception, then the notification by the Odisha Government’s Information and Public Relations Department seeks to take away what is provided by the RTI Act and is therefore ultra vires the RTI Act.

Detailed Analysis: Orissa High Court | Notification exempting Orissa Vigilance Department from the purview of RTI is ultra vires of RTI Act, 2005

Patna High Court| Right to Sanitation a fundamental right

Sanitation is personal and private, inextricably linked to human dignity. At the same time, sanitation has an essential public health dimension. The Patna High Court observed that the right to sanitation comes within the scope of Article 21 and therefore, directed the State, National Highway Authority of India (NHAI), and Oil Marketing Companies (OMC) to construct public toilets and public conveniences on highways across the state of Bihar.

Detailed Analysis: Right to Sanitation a fundamental right: Patna HC issues directions to Bihar Govt and NHAI to construct “Public toilets” on highways


NATIONAL COMMISSIONS


NCDRC| Women with sponge left in abdomen after Caesarean Surgery gets Rs. 5 Lakhs Compensation

In a consumer dispute where a woman had alleged medical negligence on part of the doctors who had left a sponge in her abdomen after performing a Caesarean surgery; NCDRC has held that, since a foreign body was left in the system of the complainant during the surgery, it clearly indicated a failure of reasonable degree of care and thus it constitutes medical negligence. As a result, the woman will now get the compensation of Rs. 5 lakhs.

Detailed Analysis: Infected sponge left in the abdomen of a woman post Caesarean surgery, constitutes medical negligence; NCDRC directs compensation of Rs. 5 lakhs to the aggrieved party


LEGISLATIONS


TDS exemption on rent of ‘aircraft’ leased out by IFSC units on certain conditions

The Central Board of Direct Taxes (CBDT) has exempted TDS on lease rentals under Section 194-I of Income Tax Act, 1961 paid to Aircraft Leasing Units. The Notification will come into force on July 1, 2022. The Exemption is applicable on certain conditions. You can read the same on the SCC Online Blog.

Full Report: CBDT notifies exemption of TDS on rent of ‘aircraft’ leased out by IFSC units on certain conditions

Registration of Electors (Amendment) Rules, 2022

Central Government, after consulting the Election Commission of India has notified Registration of Electors (Amendment) Rules, 2022 A new Rule has been inserted which provides Merger and integration of list of amendments. The rule provides that the list of amendments prepared with reference to the qualifying dates shall be merged and integrated with the last finally published roll and published as draft roll, before every election and bye-election and shall be put in public domain with reference to the qualifying date, proximate to the said election, as the Election Commission may direct.

Full Report: Centre notifies linking of Aadhaar with electoral roll vide Registration of Electors (Amendment) Rules, 2022

NFRA Amendment Rules, 2022

The National Financial Reporting Authority Amendment Rules, 2022 introduces the penalty in case of non-compliance of the provisions of the Rules. Whoever contravenes any of the provisions of these rules, shall be punishable with fine not exceeding five thousand rupees, and where the contravention is a continuing one, with a further fine not exceeding five hundred rupees for every day after the first during which the contravention continues.”.

Full Report: MCA introduces maximum penalty upto Rs. 5000 in case non-compliance of NFRA Rules, 2018 vide NFRA Amendment Rules, 2022


Curated and presented by Prachi Bhardwaj, Associate Editor, EBC Publishing Pvt. Ltd. 

Case BriefsSupreme Court

Supreme Court: The Vacation Bench of Surya Kant and JB Pardiwala, JJ has given a go ahead to the Special Session of the Maharashtra Vidhan Sabha to be convened at 11:00 on 30.0­6.­2022 for trust vote.

The order came when Senior Advocate Abhishek Manu Singhvi mentioned the matter before the Court at 5pm on 29.06.2022 and the hearing concluded at 9pm. The writ petition sought for setting aside the Maharashtra Governor’s communication/directions dated 28­6­2022 to the Chief Minister of   Maharashtra as also the Secretary, Maharashtra Legislative Assembly to conduct the Trust Vote on 30.06.2022 and conclude it by 5pm.

The Supreme Court has “found no reason” to interfere with the aforementioned direction and has directed that the special session be conducted as per the Governor’s directions. As an aftermath of the order, Uddhav Thakrey has resigned as the Chief Minister of Maharashtra[1].

[Sunil Prabhu v. Governor of Maharashtra, 2022 SCC OnLine SC 776, order dated 29.06.2022]


For petitioners: Dr. Abhishek Manu Singhvi, Sr.Adv., Mr. Devadatt Kamat, Sr. Adv., Mr. Javedur Rahman, AOR, Mr. Rajesh Inamdar, Adv., Mr. Shivendra Singh, Adv., Mr. Hemant Shah, Adv., Mr. Amit Bhandari, Adv., Mr. Sunny Jain, Adv., Mr. Nidhiram, Adv., Mr. Harsh Pandey, Adv., Mr. Revanta Solanki, Adv.

For Respondent(s): Mr. Tushar Mehta, SG, Mr. Satyapal Jain, ASG, Mr. Neeraj Kishan Kaul, Sr. Adv., Mr. Siddharth Bhatnagar, Sr. Adv., Mr. Rajat Nair, Adv., Mr. Kanu Agarwal, Adv., Mr. A.K. Sharma, AOR,  Mr. Siddharth Dharmadhikari, Adv., Mr. Abhikalp Pratap Singh, AOR, Ms. Gunjan Mangla, Adv., Ms. Aagam Kaur, Adv., Mr. Abhay Anturkar, Adv., Ms. Aarzoo Aneja, Adv., Mr. Dhruv Sharma, Adv., Ms. Ira Mahajan, Adv., Ms. Pracheta Kar, Adv., Ms. Aadya Yadav, Adv., Mr. Toshiv Goyal, Adv., Mr. Raghav Agrawal, Adv., Mr. Ramchandra Madan, Adv., Mr. Deepak Joshi, Adv., Mr. Maninder Singh, Sr. Adv., Mr. Mahesh Jethmalani, Sr. Adv., Mr. Chirag Shah, Adv., Mr. Utsav Trivedi, Adv., Mr. Abhinay, AOR, Mr. Himanshu Sacheva, Adv., Ms. Manini Roy, Adv., Mr. Pooran Chand Roy, Adv., Ms. Shivani Bhushan, Adv., Mr. Rahul Garg, Adv., Mr. Prabhas Bajaj, Adv., Mr. Pranav Saigal, Adv., Mr. Rahul Chitnis, Adv., Mr. Sachin Patil, AOR, Mr. Geo Joseph, Adv., Ms. Shewtal Shepal, Adv.


[1] The Tribune, June 29, 2022, https://www.tribuneindia.com/news/nation/thackeray-govt-floor-test-live-updates-supreme-court-begins-hearing-on-shiv-senas-plea-challenging-governors-direction-to-govt-408027

Case BriefsSupreme Court

Supreme Court: The Bench comprising of A.M. Khanwilkar, Abhay S. Oka and C.T. Ravikumar, JJ., directed Maharashtra State Election Commission to expeditiously conduct elections of local bodies (around 2486), which were pending for over 2 years (in some cases) due to disputed constitutional validity of State Amendments seeking to introduce delimitation in the State.

In the instant case the Constitutional validity of the Sections 2,3,4(1)(a) and 5 of the Mumbai Municipal Corporation Act, the Maharashtra Municipal Corporations Act and Maharashtra Municipal Councils, Nagar Panchayats, Industrial Townships Act (Amendment) Act, 2022, Sections 2,3,4 5 and 6 of the Maharashtra Village Panchayat and the Maharashtra Zilla Parishad and Panchayat Samiti (Amendment Act), 2022; and Section 2 of 5 the Mumbai Municipal Corporation (Amendment) Act, 2022 were challenged. The thrust of the challenge was that under the constitutional scheme, the authority regarding delimitation ought to be with the State Election Commission.

Opining that deeper analysis is required to examine the constitutional validity of the Acts in question, the Court listed the issue for further hearing on 12-07-2022.

Noticeably, earlier the Court had asked the Maharashtra State Election Commission to explain as to why the elections in large number of local bodies (around 2486) across the State, though overdue, and in some cases even overdue for two years, have not been taken forward despite the peremptory direction given by the Supreme Court on 03-03-2022. In its reply, the Commission had submitted that though the steps were taken at earnest to conduct elections, it could not take place due to impediments created by impugned amendments and pendency of delimitation.

In the above backdrop, the Court held that the process of delimitation being a continuous exercise may be continued by the State of Maharashtra, subject to the outcome of these petitions, but that would be relevant only for future elections after such exercise is completed.

The Court observed that the elections of local bodies which had become due on expiry of five years term and required to be conducted before expiry of such term could not brook any delay. Citing the decision of the Constitution Bench in Kishansing Tomar v. Ahmedabad Municipal Corpn., (2006) 8 SCC 352, the Court directed,

“…the election programme of such local bodies must proceed and the State Election Commission is obliged to notify the election programme within two weeks from today in respect of such local bodies including to continue with the process from the stage as on 10.3.2022, on the basis of the delimitation done prior to coming into force of the Amendment Act(s) w.e.f. 11.03.2022.”

The Court held that the delimitation as it existed prior to 11-03-2022 in respect of concerned local bodies be taken as notional delimitation for the conduct of overdue elections and the elections be conducted on that basis in respect of each of such local bodies.

With regard to question of reservation for scheduled castes and scheduled tribes, the Court clarified that the mandate of the Constitution and statutory provision must be followed; and in so far as other backward classes, compliance of triple test as predicated in Vikas Kishanrao Gawali v. State of Maharashtra, (2021) 6 SCC 73 must be adhered to.

The Court further clarified,

“We make it clear that until the delimitation is done by the State Government in terms of Amendment Act(s) of 2022, the State Election Commission shall give effect to this order also in respect of upcoming elections in respect of local bodies which would become due by efflux of time.”

[Rahul Ramesh Wagh v. State of Maharashtra, 2022 SCC OnLine SC 692, order dated 04-05-2022]


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Indira Banerjee and A.S. Bopanna, JJ., dismissed a PIL seeking issuance of writ of Mandamus on the Union of India, to impose restrictions to prevent Civil Servants from contesting elections to the Legislature, Central or State, on a political party ticket, immediately after retirement or resignation from service, by imposing a “Cooling off Period”.

Finding the allegations of bureaucrats deviating from strict norms of political neutrality with a view to obtaining party tickets to be vague, devoid of particulars and unsupported by any materials, the Bench expressed,

“No particulars have been given of the number and/or percentage of erstwhile bureaucrats, who have contested elections on the ticket of a political party, not to speak of any act on their part, prior to their retirement, in deviation of the standards required of bureaucrats.”

Law on Mandamus

A Mandamus lies for enforcement of a fundamental right or a statutory right, or the enforcement of a fundamental duty related to enforcement of a fundamental right or a statutory right. In exceptional cases, a writ may even lie for enforcement of an equitable right. The breach or threat to breach a fundamental, statutory or may be enforceable equitable right, is the sine qua non for issuance of a writ of Mandamus. The right to compel performance of a public duty must be that of the Petitioner.

Hence, observing that there was no complaint of violation of any fundamental right of the Petitioner or any group of persons represented by the Petitioner, the Bench held that the writ petition could not be entertained; the Bench observed,

“Nobody has the fundamental right to get a mandatory order of this Court directing the appropriate Legislature to enact law or the Executive to frame rules imposing restrictions on the eligibility of civil servant to contest elections.”

The Bench clarified that the writ of Mandamus is only granted to compel performance of a public duty or to enforce private rights when duties of a public nature, affect public rights or when private rights are breached by or in collusion with public officers. The legal duty that may be enjoined by Mandamus can be one imposed by the Constitution, a statute, any law or by rules or orders having the force of law, which are capable of being judicially enforced.

Judicial Limitations on issuing Mandamus

“This Court, and/or the High Court, does not give any direction to the State to enforce an Act passed by the Legislature. Nor does the Court enforce instructions in a Departmental Manual not having statutory force, any non-statutory scheme or concession which does not give rise to any legal right in favour of the Petitioner, far less, any recommendation made by an authority such as the Election Commission.” Observing the aforesaid, the Bench held that it is for the Union of India to take a decision on the recommendation of the Election Commission, in accordance with law and that it is not for the Court to decide what should be the policy of the Government. Since, policy matters are never interfered with, unless patently arbitrary, unreasonable or violative of Article 14 of the 5 Constitution.

Observations and Conclusion

Noticeably, the petitioner had filed a similar petition in the Jharkhand High Court which had been dismissed; however the petitioner did not question the dismissal order in the Supreme Court. Therefore, the Bench held that the petition was barred by the principles of res judicata and/or principles analogous thereto. With regard to the issue raised, the Bench opined,

“There can be no doubt that law may be enacted, laying down the norms and qualifications for contesting specific elections. It is, however, for the appropriate Legislature to frame the law. There can be no doubt that civil servants should maintain the highest ethical standards of integrity and honesty; political neutrality; fairness and impartiality in the discharge of duties, courtesy, accountability and transparency.”

Integrity, impartiality, neutrality, transparency and honesty being non-negotiable for the civil servants, the Bench held that ethical standards necessarily have to be enforced and stringent action taken against the concerned officer whenever there is any breach of ethical standards as laid down in the All India Services (Conduct) Rules, 1968.

Apart from the fact that no fundamental right of the Petitioner was in issue, the Bench opined that there was no merit in the contentions raised, even otherwise.

Hence, the Bench concluded that it is not for the Court to interfere in matters relating to framing of law, rules or policy and the question, whether there should be any “Cooling off Period” for civil servants for them to contest elections or not should be best left to the concerned Legislature.

Consequently, the petition was dismissed.

[Vivek Krishna v. Union of India, W.P. (C) No. 1034 of 2021, decided on 18-04-2022]


Appearance by:

For the Petitioner: Vivek Krishna (in person)


Kamini Sharma, Editorial Assistant has put this report together

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of the United States (SCOTUS): In the instant matter, the SCOTUS deliberated upon a Redistricting Plan prepared by the Governor of Wisconsin for seats in the State’s legislature- the plan which was adopted by Wisconsin Supreme Court and would have increased the number of majority-Black districts in the Wisconsin State Assembly from six to seven. The 9- Judge Bench of the Court comprising, John Roberts, C.J., and Clarence Thoms, Stephen Breyer, Samuel Alito, Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, JJ., with a ratio of 7:2, reversed the imposition of the Governor’s State Assembly and Senate maps stating that the court committed legal error in its application of SCOTUS precedents regarding the relationship between the constitutional guarantee of equal protection and the Voting Rights Act (hereinafter VRA). The issue was remanded to the Wisconsin Supreme Court for proceedings not inconsistent with the opinion expressed by the SCOTUS.  Justices Sonia Sotomayor and Elena Kagan expressed their dissent over the issue.

Background and Legal Trajectory of the case: After the conduction of decennial census in the year 2020, it was revealed that due to population shifts, Wisconsin’s State Assembly and Senate districts were not equally apportioned anymore. In order to rectify this situation, the Wisconsin Legislature passed new maps, but the Governor vetoed them. At an impasse, the legislature and the Governor turned to the Wisconsin Supreme Court. Instead of attempting to draw new maps itself, the court invited the parties and intervenors; including the Legislature and the Governor, to propose maps that complied with the State Constitution, the Federal Constitution, and the Voting Rights Act, 1965.

On 3rd March, 2022, the Wisconsin SC issued a decision selecting the Assembly and Senate maps that the Governor had proposed. The Governor’s Assembly map intentionally created seven majority-Black districts by reducing the Black voting-age population in the other six majority-Black districts.

The Wisconsin SC concluded that the Governor’s map complied with the Equal Protection Clause of the Fourteenth Amendment because there were “good reasons” to think that the VRA “may” require the additional majority-Black district.

Contentions: The Governor of Wisconsin had justified the addition of a 7th majority –Black district citing the necessity for compliance with the VRA.

Per contra, the legislature and the voters who now seek relief from the aforementioned decision, argued that the court selected race-based maps without sufficient justification, in violation of the Equal Protection Clause. Thus, they filed the instant application before the SCOTUS to either to grant an emergency stay or to construe their application as a petition for certiorari and reverse the decision of Wisconsin SC.

Observations by the Majority: The Majority, while agreeing with the contention raised by the applicants, opined that the Wisconsin SC committed a legal error while deciding the issue. Noting that the Equal Protection Clause terms the sorting of voters on the basis of race as “odious”, the Majority stated that that if race is the predominant factor motivating the placement of voters in or out of a particular district, then, the State bears the burden of showing that the design of that district withstands strict scrutiny- “Our precedents hold that a State can satisfy strict scrutiny if it proves that its race-based sorting of voters is narrowly tailored to comply with the VRA”. Citing SCOTUS’ decision in Thornburg v. Gingles, 1986 SCC OnLine US SC 170 and Cooper v. Harris, 2017 SCC OnLine US SC 23, the Majority noted that when a State invokes S. 2 of VRA to justify race-based districting, the State must show that it had ‘a strong basis in evidence’ for concluding that the statute required its action. The Court also observed that the pre-conditions laid down in Gingles case must be satisfied for such districting. The Majority also noted that Cooper’s strict-scrutiny test regarding the requirements of Equal Protection Clause must be satisfied as well.

The Majority also pointed out that there was not clarity that whether the Wisconsin viewed the Governor or itself as the state mapmaker who must satisfy strict scrutiny. They further observed that the Wisconsin SC failed to answer that whether a race-neutral alternative that did not add a seventh majority-black district would deny Black voters equal political opportunity.  “When the Wisconsin Supreme Court endeavored to undertake a full strict-scrutiny analysis, it did not do so properly under our precedents, and its judgment cannot stand”.

The Dissent: Sonia Sotomayor, J., (joined by Elena Kagan, J.) termed the decision of the Majority as “unprecedented” and the SCOTUS’ intervention in the matter as “extraordinary and unnecessary”. She observed that the Majority’s decision is based on assuming the answers to multiple questions that precedents themselves left uncertain. She noted that “The Wisconsin SC accepted an original action to supervise the redistricting and, with the input of the parties, design edits own process for doing so: accepting proposed maps from litigants rather than “crafting its own map” and determining to choose the maps that best conformed with its directives.

Observing that the Majority took Wisconsin SC to task for not following the directives of Gingles case, Justice Sotomayor stated that courts generally are not mandated to investigate undisputed and non-jurisdictional issues. She further noted that the Majority did not point out to any precedent requiring a court conducting a malapportionment analysis to embark on an independent inquiry into matters that the parties have conceded or not contested, like the Gingles preconditions.[Wisconsin Legislature v. Wisconsin Elections Commission, 2022 SCC OnLine US SC 2, decided on 23-03-2022]


Sucheta Sarkar, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of A.A. Sayed and S.G. Dige, JJ., considered the issue of whether a nominated Councillor can be appointed as Leader of the House under Section 19-1A of the Maharashtra Municipal Corporation Act, 1949.

High Court expressed that,

The term ‘elected Councillor’ in Section 19-1A would necessarily have to be read as an exclusion and bar to any other Councillor i.e ‘nominated Councillor’ to become the Leader of the House.

Petitioner was a Councillor elected at the Ward elections of the Pune Municipal Corporation held in February 2017. Respondent 1 was a nominated Councillor who was appointed as a Leader of the House in the Pune Municipal Corporation and respondent 2 was the Mayor of the Pune Municipal Corporation, whereas respondent 3 was the Pune Municipal Corporation and respondent 4 the State of Maharashtra.

Background

Bharatiya Janata Party (BJP) emerged as the largest party with 99 elected Councillors. The National Congress Party (NCP) was declared as second largest party with 42 elected Councillors. 10 Municipal Councillors and Congress party and 10 Municipal Councillors of Shiv Sena party came to be elected.

Law 

Section 5 of the Maharashtra Municipal Corporation Act, 1949 deals with the constitution of the Corporation and provides that each Corporation shall consist of such number of ‘elected Councillors’ as mentioned in the table therein and ‘nominated Councillors’ not exceeding five having special knowledge and experience in the municipal administration can be nominated in the manner prescribed.

In terms of Rule 5 of the Maharashtra Municipal Corporation (Qualifications and Appointment of Nominated Councillors) Rules, 2012 in proportion to the strength of the House, BJP could nominate three Councillors, NCP could nominate one Councillor and Shiv Sena could nominate one Councillor.

Factual Matrix

Petitioner and respondent 1 had contested the 2017 Ward elections of the Corporation and the petitioner had secured the highest number of votes and was elected to the Corporation. Respondent 1 was the unsuccessful candidate. Respondent 1 was appointed as Leader of the BJP in the Corporation and pursuant to his appointment under Section 19-1A of the said Act, the said appointment was challenged in the present petition.

Issue

Petitioner questioned the appointment of respondent 1 as Leader of the House on the ground that he was not eligible for such appointment and his appointment was against the statute. Hence, the petitioner sought a writ of quo warranto seeking the quashing the appointment of respondent 1 as Leader of the House.

Analysis and Discussion

High Court noted that as per Section 19-1A, only an ‘elected Councillor’ shall be eligible to be a Leader of the House and the entire controversy rests on the term ‘elected Councillor’.

In Court’s opinion, the term ‘elected Councillor’ used in Section 19-1A would mean only and only a Councillor who is directly elected at the election of the Ward and not a nominated Councillor.

If the intention of the Legislature was to treat both the categories of Councillors equally and to include even a nominated Councillor to be eligible to be appointed as Leader of the House under section 19-1A, the said section would have simply said ‘Councillor’ and not ‘elected Councillor’ 

Adding to the above, Court stated that interpreting the word ‘elected Councillor’ to be inclusive of a ‘nominated Councillor’ in Section 19-1A would be stretching the meaning of ‘elected Councillor’ out of context in reading the said Section 19-1A.

Nominated Councillors and Elected Councillors differ from each other, be it their route of entry into the Corporation, their right to vote, etc. Hence, only because in certain aspects and certain circumstances they are treated or judicially held to be treated equally, in Court’s opinion, it would be fallacious to treat both of them as one and the same.

Elaborating further, the Bench added that, at the stage at which the ‘Leader of the House’ occupies his/her seat, the Corporation constitutes only of elected Councillors and there is not even a single nominated Councillor in the Corporation.

Hence, it means that the pre-requisite for any person to get nominated as even the first nominated Councillor of the Corporation is the consultation with the ‘Leader of the House’ by the Commissioner.

High Court held that, a person who was not successful in the Ward Elections cannot by an indirect method or backdoor entry become the Leader of the House, if the legislature has placed an embargo upon a Nominated Councillor, that he/she shall not have the right to vote or become a Mayor as per Section 2(11), Legislature did not intend to allow a nominated Councillor to become the Leader of the House.

While concluding the matter, prima facie, it seemed illogical for the Court to comprehend that after being defeated by will of the majority at the Ward election by process of ballot, how Respondent could be eligible to be appointed as ‘Leader of the House’.

Supreme Court’s decision in Nasiruddin v. Sita Ram Agarwal, (2003) 2 SCC 577, It was held that,

“35. In a case where the statutory provision is plain and unambiguous, the court shall not interpret the same in a different manner, only because of harsh consequences arising therefrom. …” 

Verdict

‘nominated Councillor’ is not an ‘elected Councillor’ within the meaning of Section 19-1A and unless a person is an elected Councillor, in that, he is directly elected at Ward elections, he is not eligible to be appointed as ‘Leader of the House’ under Section 19-1A.

Therefore, the appointment of respondent 1 was quashed and set aside.

Note: Counsel for respondent 1 sought stay to operation and effect of the Judgment for 2 weeks, to which this Court stated that, Only on the assurance of the Senior Counsel that the Respondent 1 would not discharge functions as Leader of the House in the Corporation, Court would stay the operation of this order for a period of 2 weeks.

[Ravindra Hemraj Dhangekar v. Ganesh Madhukar Bidkar, 2022 SCC OnLine Bom 439, decided on 28-2-2022]


Advocates before the Court:

Mr. Kapil A. Rathor a/w Mr. Harshad Mandke and Mr. Heenesh Rathod for the Petitioner.

Mr. Ravi Kadam, Senior Advocate a/w Ms. Manjiri Parisnis for Respondent No.1.

Mr. Milind Sathe a/w Mr. Pralhad Paranjape, Ms. Druti Datar for Respondent No.2.

Mr. A.Y. Sakhare, Senior Advocate i/b Mr. Abhijit Kulkarni for Respondent No.3.

Mr. A.A. Kumbhakoni, Advocate General a/w Mr. P.P. Kakade, Government PLeader, Mr. Akshay Shinde, B Panel Counsel a/w Mr. R.M. Shinde, AGP for Respondent No.4.

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Sharad Kumar Sharma, J. disposed of a writ petition filed against the order of Cooperative Election Tribunal, resulting in the election of the two Cooperative Society blocks of Kotabagh and Ramnagar, which was supposed to be held for the Primary Dugdh Cooperative Society, had been directed to be kept in abeyance till the conclusion of enquiry which was directed to be conducted by the Joint Director, Dairy.

The Petitioners, the Directors and Vice Chairman of Nainital Dugdh Utpadak Sehkari Sangh, submitted that under the normal election laws, once the election programme has been notified and the constituencies have been determined, the candidature of the probable candidates has already been determined, the list of voters is finalized after inviting objections. In that eventuality, the impugned order of 31-08-2021, suspending the election of Dugdh Utpadak Sehkari Samiti particularly for Block Ramnagar and Kotabagh, would be in violation of Rule 16 and 17 of the Rules of 2018, which contemplates and provides for specific inevitable circumstances under which the election programme after being notified could be suspended. They further contended that the suspension of the election, had been maliciously made in order to make the petitioners ineligible to contest the election of the Cooperative Societies.

The Court held that “suspension of election cannot be done in a routine manner, because it infringes and runs contrary to the very democratic set up of augmenting the Cooperative activities for the benefit of public at large and the members attached to it”. Furthermore, the Court directed Respondent to appoint an alternative body and an election officer too in accordance with Rules of 2004, to be read with the Rules of 2018 and conduct the election by appointment of new Election Officer. Court didn’t found malice attached in the public complaint submitted against the Respondent. Subsequently, the petition was dismissed.[Virendra Singh Mehra v. Director/Registrar, Dairy Development, 2022 SCC OnLine Utt 84, decided on 17-02-2022]


Appearances by:

Mr Sandeep Tiwari, Advocate for the petitioners.

Mr C.S. Rawat, Chief Standing Counsel for the State of Uttarakhand/respondent 1, 3 & 4. Mr Sadeep Kothari, Advocate for respondent 2.


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Bombay High Court: G.S. Kulkarni, J., considered the question,

Whether a “self-declaration” made by a candidate contesting elections to the post of Sarpanch, that he/she has a “toilet” in a house where he/she resides was sufficient compliance, to be not disqualified under Section 14(1)(j-5) of the Maharashtra Village Panchayat Act, 1959?

Background

Petitioner challenged an order passed by the Additional Commissioner, Nashik Division whereby an appeal filed by her under Section 16 of the Maharashtra Village Panchayat Act, 1959 had been dismissed thereby confirming the order passed by the Additional Collector, Malegaon.

By the above-stated impugned order, the petitioner had been held to be disqualified as a Sarpanch of Gram panchayat under the provisions of Section 14(1)(j-5) of the Act.

Analysis, Law and Decision

High Court opined that both the authorities ex-facie erred in passing the impugned order inasmuch as the provisions of Section 14(1)(j-5) had been incorrectly read and/or misinterpreted by the said authorities in disqualifying the petitioner as a Sarpanch.

Bench elaborated stating that the above-said provision prior to its amendment necessitated the candidate to submit a certificate of the panchayat concerned along with the resolution of the Gram Sabha. However, the categorical departure of the said requirement had been made by virtue of the amendment inserted by Maharashtra Act No. 28 of 2017, which would be applicable to the facts of the case.

The Court said that it was clear that there was a departure from the original requirement as postulated by the provision prior to its amendment by the 2017 Amendment Act, by categorically providing for a “self-certificate”, under which the candidate would self-certify that he/she complies with the requirement of clauses (i) and (ii) of sub-section (j-5).

Once a candidate issues a self-certificate setting out the consequence in the self-certificate, namely, the truth thereof, a candidate certainly exposes himself/herself to an enquiry either on a complaint or otherwise that the certificate is a false certificate that the facilities of a toilet are not in existence and therefore on a enquiry being undertaken in the manner known to law, the candidate would expose himself/herself to a disqualification.

Findings of Authorities below: Illegal & Perverse?

It was held that the findings of the authorities below were required to be held perverse and illegal, being contrary to the provisions of Section 14(1)(j-5). The authorities below had erroneously applied the said provision to unseat the petitioner who was elected in a democratic manner as a Sarpanch of the Village Panchayat.

“…the amendment has changed the complete complexion of the provision by making the provision more workable in regard to self-certificate.”

Therefore, the instant petition succeeded in view of the above discussion. [Sangeeta Shivaji Vadkte v. Suryabhan Damu Yamgar, 2021 SCC OnLine Bom 6586, decided on 14-12-2021]


Advocates before the Court:

Mr. Rameshwar N. Gite for the petitioner.

Mr. S.H. Kankal, AGP for the State.

Mr. J.D. Khairnar for respondents 1 to 3.

Case BriefsSupreme Court

“This Court stands as a staunch proponent of the freedom of the media to report court proceedings. This we believe is integral to the freedom of speech and expression of those who speak, of those who wish to hear and to be heard and above all, in holding the judiciary accountable to the values which justify its existence as a constitutional institution.”

Supreme Court: In the case where the Election Commission of India (EC) had sought a direction restraining the media from reporting on court proceedings after Madras High Court made certain oral remarks attributing responsibility to the EC for the present surge in the number of cases of COVID-19, due to their failure to implement appropriate COVID-19 safety measures and protocol during the elections, the bench of Dr. DY Chandrachud* and MR Shah, JJ has refused to restrain the media from reporting on Court proceedings.

“It is trite to say that a formal opinion of a judicial institution is reflected through its judgments and orders, and not its oral observations during the hearing. Hence, in view of the above discussion, we find no substance in the prayer of the EC for restraining the media from reporting on court proceedings.”

During the course of the hearing, the Madras High Court had allegedly orally observed that the EC is “the institution that is singularly responsible for the second wave of COVID-19” and that the EC “should be put up for murder charges”. These remarks, though not part of the order of the High Court, were reported in the print, electronic and tele media.

EC had alleged that these remarks are baseless, and have tarnished image of the EC, which is an independent constitutional authority.

Noticing that these oral remarks are not a part of the official judicial record, and therefore, the question of expunging them did not arise, the Supreme Court said that,

“… the High Court was faced with a situation of rising cases of COVID-19 and, as a constitutional Court, was entrusted with protecting the life and liberty of citizens. The remarks of the High Court were harsh. The metaphor inappropriate. The High Court – if indeed it did make the oral observations which have been alluded to – did not seek to attribute culpability for the COVID-19 pandemic in the country to the EC. What instead it would have intended to do was to urge the EC to ensure stricter compliance of COVID-19 related protocols during elections.”

Tasked with balancing the rights of two independent constitutional authorities, the Court observed that the High Courts are often the first point of contact for citizens whose fundamental rights have been violated. High Courts are constantly in touch with ground realities in their jurisdictions.

“During the COVID-19 pandemic, the High Courts across the country have shown commendable foresight in managing the public health crisis which threatens to submerge humanity. Their anguish when they come face to face with reality must be understood in that sense.”

On the other hand, the EC has facilitated the operation of our constitutional democracy by conducting free and fair elections and regulating conduct around them for over seven decades.

“Its independence and integrity are essential for democracy to thrive. This responsibility covers powers, duties and myriad functions which are essential for conducting the periodic exercise of breathing life into our democratic political spaces.”

While the Court held that the High Court was faced with a situation of rising cases of COVID-19 and, as a constitutional Court, was entrusted with protecting the life and liberty of citizens and hence, only intended to urge the EC to ensure stricter compliance of COVID-19 related protocols during elections, it emphasised on the need for judges to exercise caution in off-the-cuff remarks in open court, which may be susceptible to misinterpretation.

“Language, both on the Bench and in judgments, must comport with judicial propriety. Language is an important instrument of a judicial process which is sensitive to constitutional values. Judicial language is a window to a conscience sensitive to constitutional ethos. Bereft of its understated balance, language risks losing its symbolism as a protector of human dignity. The power of judicial review is entrusted to the High Courts under the Constitution. So high is its pedestal that it constitutes a part of the basic features of the Constitution. Yet responsibility bears a direct co-relationship with the nature and dimensions of the entrustment of power. A degree of caution and circumspection by the High Court would have allayed a grievance of the nature that has been urged in the present case.”

The Court concluded by saying that the oral observations during the course of the hearing have passed with the moment and do not constitute a part of the record.

[Chief Election Commissioner of India v. M.R Vijayabhaskar, 2021 SCC OnLine SC 364, decided on 06.05.2021]


*Judgment by: Justice Dr. DY Chandrachud

Appearances before the Court:

For EC: Senior Advocate Rakesh Dwivedi and Advocate Amit Sharma

Case BriefsHigh Courts

NOTE: The judgment which is been reported below, has since been affirmed by the Supreme Court in State of Goa v. Fouziya Imtiaz Shaikh, 2021 SCC OnLine SC 211, albeit with certain modifications in directions (c) and (e) noted at the end of this report.

 Bombay High Court: The Division Bench of M.S. Sonak and Bharati Dangre, JJ., held that

Fairness in action is the benchmark in electoral matters.

Elections are the central institution of democratic representative governance, since in the democratic setup, the authority of the Government derives solely from the concept of the governed.

 The constitutional Courts cannot be reduced to mute spectators when the right to contest or to vote at a election, though a statutory right is said to be scuttled on the basis on uninformed reservation policy which can be capriciously utilized for ejection of eligible contestant, eventually causing a serious dent in the democratic principles governing election laws as well as edifice of democracy.

While referring to the celebrated Supreme Court decision in  Mohinder Singh Gill v. Chief Commissioner (1978) 1 SCC 405, has expressed a word of caution while entertaining any dispute involving and revolving around ‘Election’.

Following was the word of caution:

“Election disputes are not just private civil disputes between two parties. Though there is an individual or a few individuals arrayed as parties before the Court but the stakes of the constituencies as a whole are on trial. Whichever way the lis terminates it affects the fate of the constituency and the citizens in general. A conscientious approach with over riding consideration for welfare of the constituency and strengthening the democracy is called for. Neither turning a blind eye to the controversies which have arisen nor assuming a role of over enthusiastic activist would do. The two extremes have to be avoided in dealing with the election disputes”.

Factual Matrix

Goa State Election Commission’s (SEC) decision was to conduct the general elections in 11 Municipal Councils in the State of Goa.

The SEC, constituted under Section 237 of the Goa Panchayat Raj Act, exercising the power of superintendence and control of the conduct of all elections to the Council, on giving thoughtful consideration to the pandemic of Covid in the entire State of Goa and taking into account that the 11 Municipal Councils are located at different geographical positions, postponed the general elections, by a further period of three months by issuing a notification.

COVID-19 & Elections

Contemplating risk to the life of the people involved in the process, the Commission deemed it appropriate not to proceed with the election process. Further, by another notification the general elections were postponed having regard to the prevailing scenario to the effect that the official responsible for conduct of elections were going to be amongst the officers who were engaged in the Management of COVID-19 Vaccination Drive to be implemented in the State.

Apart from the above, Government’s concern was with regard to the congregation of crowds during the campaign period and holding the elections together. Since the election process involves holding public meeting, public rallies, public procession during the campaign period and contemplating that enforcing the health protocol and regulating the number of participants would be a serious issue.

Hence, in view of the above-said situation, the elections were postponed till April, 2021 or to the election date which may be determined by the Election Commission.

Analysis

Procedure adopted in determining the reservation of seats in different Wards of the Municipal Councils.

Challenge in the writ petitions of Mormugao and Mapusa Municipal Council

Percentage of reservation provided for women, being less than 1/3rd of the total number of seats, as prescribed in Article 243T(3) of the Constitution and Section 9(1) of the Goa Municipalities Act, 1968. When the record is perused, it bear out that in Mormugao Municipal Council total number of seats to be filled in by direct election are 25. Of these seats, 8 seats have been reserved for women; which gets translated into 32%. As per the mandate prescribed, for reservation to women, the number of seats which would make up to 1/3rd of 25 seats would be 8.33%.

Court expressed that the reservation for women is done by rotation and after delimitation done in 2015, rotation end up in three terms, commencing from 2015 and going to end in 2026. After charting the reservation which is already provided for women category in 2015 and 2021, the solution offered is the remaining Wards which are not reserved for women in the earlier two elections, may be reserved in 2026. Implicitly, the stand taken is that in order to complete the fraction, the seat would be rounded off in the three terms by rotation, in order to avoid excessive reservation to women and therefore the aforesaid solution.

Reservation of seats for women in Panchayat and Municipalities which were introduced by the 73rd and 74th Amendment seeking to achieve an avowed purpose, to make women a part of the decision making and governance process, in a democracy governed by law.

High Court opined that the course adopted by respondent 2 violate the mandate of law. The solution offered by respondent 2 in taking forward the reservation and to be adjusted within the three terms, is also, according to us defeat the very purpose as the mandate contained in the first proviso appended to sub-section 1 of Section 9 which is to be followed in every Council which means, the Municipal Council constituted or deemed to be constituted under the Act for a Municipal area and as a body corporate with a prescribed tenure. The fraction even if it is created in calculating 1/3rd reservation cannot be permitted to be rounded off towards the earlier denomination and the normal principle for rounding off, which is based on logic and common sense.

Bench relying on the decision in Ashok Maniklal Harkut v. Collector, Amravati [1988 Mah LJ 378], Ganesh Sukdev Gurule v. Tahsildar Sinnar (2019) 3 SCC 211, found that the approach adopted by respondent 2 would stare in face of the constitutional mandate, reserving 1/3rd seats for women and to that extent the impugned order would be quashed. Adding to this, Court quashed and set aside the order that reserved 8 seats in Margao Municipal Council where the total number of seat to be filled were 25.

Even in Mapusa, reservation for women had been flawed since out of 20 seats available to be filled in, 6 seats reserved for women which amounted to 30% and which is less than the prescribed 1/3rd percentage and adopting the reasoning aforesaid, the number of seats reserved for women in Mapusa ought to have been 7. The same is the case in respect of Valpoi, Sanguem, Pernem Municipal Council where 10 seats are available for election and 3 seats have been reserved for women, which amount to 30% of the total number of seats, whereas the reservation provided for women is 1/3rd and 4 seats should have been gone to women, in each of the aforesaid Municipal Council.

High Court held that the Director acted in breach of the Constitution as well as the statutory provision.

Further, it was stated that the principle of law laid down by the Supreme Court in case of N.P. Ponnuswami v. Returning Officer AIR 1952 SC 64, a leading case in election law, revolve around the relevant provisions in the Constitution, in form of a bar and deal with the scope amplitude and limitation imposed in the Constitution in election matters.

Constitution Bench judgment in case of Mohinder Singh Gill v. Chief Commissioner (1978) 1 SCC 405 formulated two types of challenges:

  • first relating to the proceedings which interfere with the process of election and
  • second which accelerates the completion of election and act in furtherance of election.

Conclusions in the above decision were determinative factor whether the interference will have the effect of interrupting, obstructing or protracting the election proceedings or whether it sub-serves the election procedure or facilitate the completion of election and that would determine whether an ‘election is called in question’.

Judicial intervention is imminent for correcting or smoothing the election process by removing the obstacles therein, the writ Court shall not be overwhelmed by the non-obstante clause, the underlining emphasis being on delaying, interrupting, protracting or stalling the election proceedings. The courts can always examine any action which is motivated by extraneous reason and also as to whether it is derogating the germane objective.

 In the instant case, it is apparent that impugned action cannot stand to the test of fairness in action.

Bench further remarked that,

“…action of the Director and on the conduct of the Election Commission as a mute spectator, which in fact was expected to act and live up to its role conferred by the constitution, ensuring free and fair elections, we are not expected to be oblivious to the situations which have been drawn to us. We do not appreciate the helplessness expressed by the State Election Commission, which is supposed to be an authority independent of the Government.”

State Election Commission has the power of superintendence over the “conduct of elections” is wide enough, which include the power to take all steps necessary for conduct of the free and fair election.

“Silence on part of the constitutional functionary is highly detrimental to the democratic to the democratic concept of the country.”

Second Ground on which impugned order dated 04-02-2021 has been attacked

Allotment of reserved seats is based on no predetermined policy and the Director, taking undue advantage of the absence of policy has chosen to make allotment without the application of mind and in an arbitrary, whimsical and capricious manner.

High Court for the above-stated ground held that an unfretted discretion in the State was always frowned upon and violate Article 14 by mere absence of policy, is no ground to strike the impugned provisions, because it is not a matter where there are no guidelines.

Absence of definite and certain policy of rotating the reserved seats would obviously inflict a corresponding detriment on some person by being susceptible to arbitrary use.

 Bench in view of the above discussion stated that to achieve the avowed purpose of reservation within the constitutional and electoral dynamics, it is obligatory to have adequacy of representation of all classes as per the reservation policy uniformly followed. The constitutional Courts would act as watchdog and expected to be conscious about proper exercise of power to repel any impediment or detriment to any weaker section of class as an entailing consequence of decision taken.

Constitutional Courts, cannot remain oblivious to fundamental principles governing the realm of reservation policy in election matters.

 In the instant case, malice in law and in fact can be discerned, obviously for the reason that in a multi-party democracy, the existence of reservation policy is a sine qua non to uphold de constitutional policy.

Adding to the above, Court expressed that the Pertinence of free and fair election stems from participation of all and sundry and as well as representation from the entire societal strata which has led to inculcation of definite reservation policy in election matters.

Amongst the 11 Municipal Councils whose process of reservation and rotation has been alleged to be flawed one, their term has already expired and it is being informed that its administration has been taken over by the body of Administrators.

If the authorities move with lightning speed, which they are expected to, since in the exigency of the situation which prompted the SEC to be agile in issuing the Notification declaring the elections when the Writ Petitions were pending before the Court, challenging the impugned Notification, expecting the same promptitude by the election Commission and on behalf of the State Government to rectify its procedure, and ensure free and fair election which is a hallmark of democracy.

Bench directed respondent 2 to redetermine the reservation of seats in the Wards of the Municipal Council in the light of observations made by the Court.

M.S. Sonak, J., expressed that the crucial expressions were made clear that while reservation in favour of women can exceed one-third, under no circumstances can the same be less than one-third of the total number of seats to be filled by direct election in every Municipality.

Hence, in so far as the Mormugao Municipal Council in which the total number of seats to be filled by direct election were 25, the Director was both constitutionally as well as statutorily bound to reserve at least nine seats for women, which, he has admittedly failed to.

“…reservation of only eight seats out of a total number of 25 seats in favour of women is a reservation which is less than one-third the total number of seats to be filled by direct election to the Mormugao Municipal Council.”

The reservation of only six seats from out of a total number of 20 seats to be filled by direct election to the Mapusa Municipal Council amounted to a reservation less than one-third of the total number of seats to be filled by direct election. The Director acted in breach of both constitutional as well as statutory provisions in failing to provide reservation of not less than one-third of the total number of seats, in favour of women, and to that extent the impugned order dated 4th February 2021 is required to be quashed and set aside.

“…whilst making the reservation, the Director, is statutorily bound to have regard to the concentration of population of ST, SC, and OBC in any particular wards.

Following order was passed:

(a) Writ Petition No. 515 of 2021 (filing) is dismissed.
(b) Writ Petition No. 85 of 2021, 86 of 2021, 87/2021, 88/2021, 90/2021, 91/2021, 524/2021 (Filing) and 525/2021 (Filing) are hereby allowed. The impugned order dated 04/02/2021 issued by the Director and ex-officio Additional Secretary, Municipal Administrator/Urban Development, Goa in so far as it concerned the Municipal Council of Sanguem, Mormugao, Mapusa, Margao and Quepem is quashed and set aside.

(c) By a Writ of Mandamus, we direct the Director and ex-officio Additional Secretary, Municipal Administrator/Urban Development, Goa to issue fresh Notification under sub-section 1 of Section 9 r/w. Sub-section 1 of Section 10 of the Goa Municipalities Act, 1968 within a period of 10 days from today, thereby ensuring inter alia, reservation for women of not less than on-third of the total number of seats reserved for direct elections to the Municipal Councils.

(d) While exercising the power afresh and rectifying the gross illegalities pointed out in our judgment and order, the Director shall give due weightage to our observations made therein.

(e) The State Election Commission of Goa is directed to expeditiously notify the election programme, on the order for reservation of seats in the Municipal Councils being issued by the Director, Respondent No. 2 and the State Election Commission shall align the schedule of election in a manner, to ensure its completion by fixing up its various stages as per the Goa Municipalities (Election) Rules, 1969 and the culmination of the process on or before 15th April, 2021.[Romaldo Fernandes v. State of Goa, 2021 SCC OnLine Bom 275, decided on 01-03-2021]

Case BriefsHigh Courts

Calcutta High Court: The Division Bench of Thottathil B. Radhakrishnan, CJ and Arijit Banerjee, J., expressed that circulars issued by the Election Commission of India show the route map and protocol for human behaviour.

Court while addressing the matter stated that it is unable to reconcile the fact that the Election Commission of India was not able to update the Court as to what action by way of enforcement of the circulars had been obtained.

Issuance of circulars and holding of meetings by themselves do not discharge the onerous responsibility of the Election Commission of India and officers under its command in due performance of not only the statutory power and authority under Representation of People Act, 1950 and the Representation of People Act, 1951 but the confidence that the Indian polity would have on it to carry forward the mechanism of upholding the democracy by use of requisite facilities even in pandemic times like heightened challenge by COVID-19 virus and its variants.

Bench remarked that it is not satisfied with the materials on record to state that the Election Commission of India and its officers on the ground in West Bengal enforced the circulars.

“We are sure that circulars are not merely advisories to be wrapped up by the political parties or those involved in the political propaganda or even the public at large.” 

Further, High Court observed that

Circulars of the Election Commission of India show the route map and the protocol for  behaviour of the political parties, their workers, the people at large and responsible management by the officers including the police and other forces under the command of the Election Commission of India.

Lastly while concluding the matter, Court directed the counsel for Election Commission to return to make submission with a very short affidavit reflecting on whatever has been stated above. [Nitish Debnath v. Election Commission of India, 2021 SCC OnLine Cal 1521, decided on 22-04-2021]


Advocates before the Court:

Mr. Srijib Chakraborty, adv. Mr. Arindam Das, adv.

Mr. Dipayan Choudhury, adv. Mr. Suvradal Choudhury, adv.

Ms. Priyanka Chowdhury, adv.

… For the Election Commission of India

Mr. Y.J. Dastoor, ld. ASG Mr. Phiroze Edulji, adv. Ms. Amrita Panday, adv. Mr. Arijit Majumdar, adv.

…For the Union of India

Mr. Kishore Dutta, A.G.

Mr. Abhrathosh Majumdar, ld. AAG Mr. Sayan Sinha, adv.

… For the State

Mr. Sonal Sinha, adv.

… for the State Election Commission

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: P.V. Asha, J., directed the Election Commission of India (ECI) to conduct elections, to which it is duty-bound, which is even admitted to. Further gave directions to hold elections to three Rajya Sabha seats from Kerala and complete the process at the earliest while taking expeditious steps without further delay to complete the election before another electorate comes into existence.

In the present matter, the Secretary and the member (almost on the identical issue) of the Legislative Assembly challenged the Election Commission’s decision to keep in abeyance elections to the Rajya Sabha till further orders. ECI had stated the following:

“The Commission vide Press Note No. ECI/PN/29/2021 DATED 17.03.2021 had announced the schedule of election for 03 seats to Council of States from Kerala as mentioned therein, with the notification scheduled to be issued on 24.03.2021. In the meanwhile, a reference has been received from the Ministry of Law & Justice. Pending examination of the reference, the Commission has decided to keep the aforementioned proposed notification and schedule in abeyance till further orders.”

Now the contentions put forth by the petitioner was:

That the Commission was bound to conduct the election before the expiration of the term of the three outgoing members of the Council of States otherwise there would be a shortage of three representatives for the State in the Council of States and it should be during the currency of the 14th legislative assembly. And further contended that it is the constitutional right of the members including him to use their franchise to elect a member of their choice to and the postponement would affect their right as the term of the present assembly would expire in May 2021 and apart from that he would also lose his statutory right to exercise his vote to a person of his choice. Further, the counsel appearing for the UOI contended that the reliefs sought by the petitioners to accelerate the process of election is not hit by the embargo in Article 329(b); the Commission is duty-bound to carry out its duties as envisaged in Article 324 of the Constitution of India and steps shall be taken for conducting the election before the expiration of the term of retiring members; right to vote is a constitutional right; there cannot be a deferment of election in the absence of justifiable reasons, etc.

The ECI while firmly contending their stand stated that the requirement of Section 12 of the Representation of Peoples Act was the notification of election before the occurrence of vacancies while the provision that the elections have to be completed before the vacancies is not mentioned.

After considering the facts and the array of cases referred to, while referring to Mohinder Singh v. Chief Election Commissioner (1978) 1 SCC 405 the Court was of the opinion that

“…The fact that it is upto the Commission to fix the schedule of election would not mean that the Commission can fix any date. As held in the judgment in Mohinder Gill’s case when a high functionary like. The Commissioner is vested with wide powers it is incumbent on the Commissioner to act fairly and legally as Article 324 is geared to the accomplishment of free and fair elections expeditiously. The Commission, which is fully aware of its duty conferred under Article 324 of the Constitution of India in its true spirit, has therefore to expedite the proceedings so as to see that the representation in the upper House from the State of Kerala is always in full swing and to avoid situations as pointed out by the learned Senior Counsel for the petitioners, where the nomination is made by the existing assembly and voting by another assembly. It is seen that at least after it arrived at the decision that it is its duty to see that the vacancies are filled up at the earliest, the Commission is yet to take any steps for the same…” And further that “…every Indian has a right to elect and be elected and it is a constitutional as distinguished from a common law right and is entitled to cognizance by courts, subject to statutory regulation…”.

Therefore, the Court in the matter of two writ petitions with identical issues gave directions to hold elections to three Rajya Sabha seats from Kerala and complete the process at the earliest while taking expeditious steps without further delay to complete the election before another electorate comes into existence.[Secy. v. Election Commission of India, WP(C) No.8089 and 8092 of 2021, decided on 13-04-2021]


Advocates for the Petitioner

V.Manu, Senior Government Pleader

N.N.Sugunapalan (Sr.)

P.K.Babu

S.Sujin

Advocates for the Respondent

Deepu Lal Mohan, SC, Election Commission of India

P Vijayakumar, ASG

Case BriefsCOVID 19High Courts

Calcutta High Court: The Division Bench of Thottathil B. Radhakrishnan, CJ and Arijit Banerjee, J., in view of the resurgence of COVID-19 pandemic expressed that

“We are dealing with an extraordinary situation and this calls for extraordinary measures. It is in public interest that the Administration must ensure that all the COVID protocols are strictly adhered to by all concerned including those engaged in election campaigning activities.”

“If the Administration finds that a person, whether engaged in election campaigning or otherwise, if flouting the COVID protocols, such person must have been taken to task immediately.”

Two petitions were filed expressing concern that the people participating in the ongoing election campaigns were not adhering to COVID protocol and that could cause serious spike in COVID-19 cases in the State.

Through newspaper reports and photographs published in newspapers, it has been noted that people engaged in campaigning including in some cases the candidates have not always been wearing masks nor are maintaining prescribed social distancing.

Petitioner’s counsel submitted that Election Commission is well aware that COVID guidelines are being flouted by the people engaged in election campaigning.

Whereas Counsel for the Election Commission submitted that everything necessary was being done to ensure that COVID guidelines were adhered to by the people engaged in election campaigning.

Bench noted that a Press Note was issued by the Election Commission of India on 26-02-2021 containing the COVID guidelines for the conduct of the Legislative Assembly Elections in Assam, Kerala, Tamil Nadu, West Bengal and Puducherry.

An undated Circular was also placed before the Court that laid down the measures that have been taken and are to be taken by the polling booths in the wake of the second wave of COVID-19 pandemic.

High Court noted that the Election Commission of India and the Chief Electoral Officer, West Bengal had laid down guidelines and taken measures to ensure public health safety during the election days keeping in view the resurgence of COVID-19.

“…Guidelines need to be implemented in a stricter manner.”

 Court directed that:

  • District Magistrates of all the districts in the State of West Bengal shall ensure that all the guidelines laid down by the Election Commission of India and the Chief Electoral Officer, West Bengal, are strictly implemented in their true letter and spirit.
  • Stringent measures against the persons who fail, neglect or refuse to obey the COVID protocols.
  • Callous, irresponsible and non-chalant attitude or behavior of some of the members of the society cannot be permitted to endanger the lives of the other members of the society.
  • For enforcement of social distancing and to avert deadly disaster, Administration may resort to Section 144 CrPC.

What is mandatory?

  • wearing of masks has to be made mandatory at all gatherings.
  • sanitizers must be made available liberally;
  • safe distancing norms must be followed at all gatherings;
  • the Administration shall do its best to ensure that there are no large congregations, and
  • public awareness through distribution of pamphlet and miking should be resorted to.

Bench requested the member of all political parties contesting Assembly Elections and travelling across the State for campaigning purpose to ensure that at every gathering all persons shall wear masks and maintain the safe distancing norms.

Chief Electoral Officer, West Bengal may issue further guidelines as it may deem necessary.

Matter to be listed on 19-04-2021 when Chief Electoral Officer shall file a report in affidavit form with regard to measures taken for implementation of guidelines holding a safe election. [Nitish Debnath v. Election Commission of India, WPA (P) No. 117 of 2021, decided on 13-04-2021]


Advocates before the Court:

Mr. Srijib Chakraborty, Mr. Arindam Das, Smt. Rumali Sarkar, Ms. Anushka Mahato and Smt. Sonia Parvin Mondal, for the Petitioner (WPA (P) 117 of 2021)

Mr. Manisankar Chattopadhyay | for the Petitioner (WPA (P) 118 of 2021)

Mr. Y. J Dastoor, Ld. ASG Mr. Phiroze Edulji  and Ms. Amrita Pandey | for the Respondent No. 2,3 & 4 (WPA (P) 117 of 2021)  And for the Respondent no.1 (WPA (P) 118 of 2021)

Mr. Sonal Sinha | for the State Election Commission

Mr. Dipayan Choudhury Mr. Suvradal Choudhury Mrs. Priyanka Chwdhury | for the Election Commission Of India & Chief Electoral Officer in WPA (P) 117 of 2021 & Election Commission of India in WPA (P) 118 of 2021

Case BriefsHigh Courts

Madras High Court: The Division Bench of Sanjib Banerjee, CJ and Senthilkumar Ramamoorthy, J., expressed that:

Election Commission has sufficient authority to put checks and balances in place that allow a Minister or the like to enjoy the status yet not spend official funds for campaigning or election purposes.

Petitioner sought prohibition on Ministers and the like from campaigning in the elections as they hold public offices, draw a salary from the government and were in a position to exert undue influence.

Further, it was added that the petitioners shall be restrained to campaign for their party candidates contest in the general elections (except their candidature).

In an ideal world, there should be a level playing field where government functionaries do not use the perks and benefits in the office while they campaign for election purposes.

Further, it was noted that a Minister may be willing to shed his official bandobast to attend a rally merely as a politician, the very status of the Minister and the requirement to give him security cover may not permit the freedom that would be required for the purpose. This goes more so with higher officials like Chief Ministers and those holding cabinet positions at the Centre.

It was stated that the petitioner’s idealism may be slightly out of place. However, Strict Election Commission could put some guidelines in place, adding to the present ones in order to at least ensure that the government funds are not brazenly used for campaigning purposes as is usually being indulged.

Bench in view of the above added that the malaise is now deep-rooted.

One has to wear allegiance to a political leader, if not on the sleeve at least visibly crying out of the pocket. And these are not only at election time but adopted as a perennial measure, almost as a talisman to ward off the evil eye. 

High Court held that the Election Commission will deal with the petitioner’s representation, if not for the upcoming elections, then for the future elections. [Ahimsa Socialist Party v. Chief Election Commissioner, WP No. 5179 of 2021, decided on 23-03-2021]


Advocates before the Court:

For Petitioner: Mr. T. Sivagnanasambandan

For Respondents: Mr. Niranjan Rajagopal

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and AS Bopanna and V, Ramasubramanian, JJ has refused to interfere with the scheme of sale of electoral bonds by the Political Parties challenged on the ground that it allows the donors of political parties to maintain anonymity which is not healthy for a democracy. The Court said that even though the Scheme provides anonymity, it is intended to ensure that everything happens only through banking channels and that,

“All that is required is a little more effort to cull out such information from both sides (purchaser of bond and political party) and do some “match the following”. Therefore, it is not as though the operations under the Scheme are behind iron curtains incapable of being pierced.”

The following prayers were made before the Court:

(i)  A declaration that all national and regional political parties are public authorities under the Right to Information Act, 2005;

(ii) A direction to the Election Commission of India to collect all information concerning the finances of political parties;

(iii) A direction to all national and regional political parties to mandatorily disclose complete details about their income, expenditure, donations and funding as well as full details of the donors.

Analysis

Explaining the Scheme, the Court said that while the identity of the purchaser of the bond is withheld, it is ensured that unidentified/ unidentifiable persons cannot purchase the bonds and give it to the political parties.

Under clause 7 of the Electoral Bonds Scheme, 2018, buyers have to apply in the prescribed form, either physically or online disclosing the particulars specified therein. Though the information furnished by the buyer shall be treated confidential by the authorised bank and shall not be disclosed to any authority for any purposes, it is subject to one exception namely when demanded by a competent court or upon registration of criminal case by any law enforcement agency. A non-KYC compliant application or an application not meeting the requirements of the scheme shall be rejected.

“If the purchase of the bonds as well as their encashment could happen only through banking channels and if purchase of bonds are allowed only to customers who fulfill KYC norms, the information about the purchaser will certainly be available with the SBI which alone is authorised to issue and encash the bonds as per the Scheme.”

Moreover, any expenditure incurred by anyone in purchasing the bonds through banking channels, will have to be accounted as an expenditure in his books of accounts. The trial balance, cash flow statement, profit and loss account and balance sheet of companies which purchase Electoral Bonds will have to necessarily reflect the amount spent by way of expenditure in the purchase of Electoral Bonds.

Further, the financial statements of companies registered under the Companies Act, 2013 which are filed with the Registrar of Companies, are accessible online on the website of the Ministry of Corporate Affairs for anyone. They can also be obtained in physical form from the Registrar of Companies upon payment of prescribed fee. Since the Scheme mandates political parties to file audited statement of accounts and also since the Companies Act requires financial statements of registered companies to be filed with the Registrar of Companies, the purchase as well as encashment of the bonds, happening only through banking channels, is always reflected in documents that eventually come to the public domain.

The apprehension that foreign corporate houses may buy the bonds and attempt to influence the electoral process in the country was also found to be “misconceived”. Under Clause 3 of the Scheme, the Bonds may be purchased only by a person, who is a citizen of India or incorporated or established in India.

The Court, hence, found no reason to interfere with the Scheme.

[Association for Democratic Reforms v. Union of India, 2021 SCC OnLine SC 266, decided on 26.03.2021]


Appearances before the Court by:

For appellant: Advocate Prashant Bhushan,

For Union of India: Attorney General KK Venugopal

For ECI: Senior Advocate Rakesh Dwivedi

Case BriefsCOVID 19High Courts

Madras High Court: A Division Bench of Sanjib Banerjee, CJ. and Senthilkumar Ramamoorthy, J., requested all political parties and candidates, who hold meetings and go campaigning all over the State, to ensure that at every gathering masks are worn by all and that social distancing norms are maintained without exception.

The Court was hearing a petition filed under Article 226 of the Constitution of India praying for issue of Writ of Mandamus directing the State of Tamil Nadu and the State Chief Election Commissioner to prevent the election campaign in 234 constituencies in the State Assembly Election to be held next month. The petitioner had forwarded a representation on 2-3-2021 to such effect but the authorities did not respond to the petitioner or take any action in terms thereof.

The Court noted that: “It is no doubt a matter of concern that the Covid cases have been rising in the recent days and a second wave appears to be upon us.

However, as per the Court, since the assembly elections have been notified and the process is about to be completed by voting next month, it cannot be interfered with at this stage.

Accordingly, the High Court disposed of the instant petition by requesting all political parties and candidates, who hold meetings and go campaigning all over the State, to ensure that at every gathering masks are worn by all and that social distancing norms are maintained without exception. The Court further said that it may do well for the Election Commission to send a message in such regard to all candidates and in respect of all gatherings at campaign meetings and the like. [A. Jalaudeen v. State, WP (MD) No. 5766 of 2021, decided on 22-3-2021]

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of The United States: In a significant decision, the Court by a ratio of 6:3, declined to review petitions challenging Pennsylvania’s “mail-in ballots” policy. The lawsuits that the court turned down concerned Republican Party’s bids to invalidate Pennsylvania’s extended mail ballot due date. It was claimed that Pennsylvania’s policy of ‘accepting timely sent ballots that arrived up to three days after Election Day was illegal’.

Pennsylvania has a long history of lim­iting the use of mail-in ballots. However in October 2019, the Pennsylvania Legislature overhauled its election laws and gave all voters the option of voting by mail, and it extended the deadline for officials to receive mail bal­lots by several days to 8 p.m. on Election Day. Then, in response to COVID–19, the legislature again amended the law but decided not to ex­tend the receipt deadline further. Displeased with that decision, the Pennsylvania Demo­cratic Party sued in state court. It argued that the court could extend the deadline through a vague clause in the State Constitution providing, in relevant part, that “elec­tions shall be free and equal.” [Art. I,§5]. The Pennsylvania Supreme Court agreed and held that the “free and equal” provision enabled the court to extend the deadline three days to accommodate concerns about postal delays.

Although the SCOTUS majority refused to entertain any more petitions, however, Clarence Thomas, Samuel Alito and Neil Gorsuch, JJ., dissented from the majority. Clarence Thomas, J., stated that it is the Federal Constitution, not state con­stitutions, which gives state legislatures the authority to regulate Fed­eral elections; the Republicans had a strong argument that the Pennsylvania Supreme Court’s decision violated the Constitution by overriding “the clearly expressed intent of the legislature”. He further observed that it is fortunate that the Pennsylvania Supreme Court’s decision to change the receipt deadline for mail-in ballots did not appear to have changed the outcome in any federal election, but he also pointed out that, “We may not be so lucky in the future. Indeed, a sep­arate decision by the Pennsylvania Supreme Court may have already altered an election result. A different petition argues that after Election Day the Pennsylvania Supreme Court nullified the legislative requirement that voters write the date on mail-in ballots”. Thomas, J., also pointed out that in 2018 the percentage of mail-in ballots cast was at 4%, but the legislature dramatically expanded the process in 2019, thereby increasing the mail-in ballots cast in 2020 to 38%. According to Thomas, J., this expansion impeded post election judicial review be­cause litigation about mail-in ballots is substantially more complicated. “The Pennsylvania Supreme Court issued its decision about six weeks before the election, leaving little time for review in this Court. And there is a reasonable expectation that these petitioners—the State Republican Party and leg­islators—will again confront non legislative officials alter­ing election rules. … we failed to set­tle this dispute before the election, and thus provide clear rules. Now we again fail to provide clear rules for future elections. The decision to leave election law hidden beneath a shroud of doubt is baffling. By doing nothing, we invite further confusion and erosion of voter confidence”.

Samuel Alito, J., (for himself and Neil Gorsuch, J.,) observed that the Republican petitions present an important and recurring constitutional question, that whether the Elections or Electors Clauses of the United States Constitution Art. I, §4, cl. 1; Art. II, §1, cl. 2, are violated when a state court holds that a state constitutional provision overrides a state statute governing the manner in which a federal election is to be conducted. Noting that since this constitutional issue has baffled the lower courts time and again, therefore a SCOTUS review would have been helpful to provide a clear path for them to follow in case of future disputes of such nature. Moreover, now, that the Presidential Election is over, there is no reason for refus­ing to decide the important question that these cases pose. “The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legisla­ture simply by claiming that a state constitutional provi­sion gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.” Bush v. Palm Beach County Canvassing Bd., 2000 SCC OnLine US SC 81.[Republican Party of Pennsylvania v. Veronica Degraffenreid (Nos. 20–542), 592 U. S. (2021), decided on 22-02-2021]


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Himachal Pradesh High Court
Case BriefsHigh Courts

Himachal Pradesh High Court: Jyotsna Rewal Dua J., dismissed the petition being non-maintainable.

The petitioner by way of this instant petition has challenged the election of Respondent 5 as Member, Block Development Committee, Misserwala, District Sirmour in the elections to Panchayati Raj Institutions of the State concluded in January 2021. The writ petition has been filed seeking that the respondent election commission may be directed to start the fresh election and declare the election under challenge as null and void.

The issue before the High Court is the maintainability of writ petitions under Article 226 of the Constitution of India vis-à-vis Article 243-O of the Constitution of India in respect of limitation in exercise of judicial review by the Court in election matters.

Section 162 of the H.P. Panchayati Raj Act provides that no election under the Act shall be called in question except by an election petition presented in accordance with the provisions of the chapter and Section 175 of the Act enumerates the grounds for declaring election to be void.

The Court stated

 “We are also conscious of the limitations set forth on such exercise of judicial review in view of bar of jurisdiction imposed by Article 243-O of the Constitution of India, which is quoted hereinbelow:-

“243-O. Bar to interference by Courts in electoral matters- Notwithstanding anything in this Constitution-

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under article 243K, shall not be called in question in any court;

(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any Law made by the Legislature of a State.”

 The Court further relied on judgment Laxmibai v. Collector, Nanded, (2020) 12 SCC 186 wherein it was observed the maintainability of writ petitions under Article 226 of the Constitution of India vis-a-vis Article 243-O of the Constitution of India in respect of limitation in exercise of judicial review by the Court in election matters, it was held that all election disputes must be determined only by way of an election petition. This by itself may not per-se bar judicial review, which is the basic structure of the Constitution but ordinarily, such jurisdiction would not be exercised. The relevant paragraphs of the judgment are extracted hereinafter:

 “15. It is true that the High Court exercises a plenary jurisdiction under Article 226 of the Constitution of India. Such jurisdiction being discretionary in nature may not be exercised inter alia keeping in view of the fact that an efficacious alternative remedy is available therefor. (See Mrs.

  1. Article 243-O of the Constitution of India mandates that all election disputes must be determined only by way of an election petition. This by itself may not per se bar judicial review which is the basic structure of the Constitution, but ordinarily such jurisdiction would not be exercised. There may be some cases where a writ petition would be entertained but in this case we are not concerned with the said question.
  2. ….a writ petition should not be entertained when the main question which fell for decision before the High Court was non-compliance of the provisions of the Act which was one of the grounds for an election petition in terms Rule 12 framed under the Act.”
  3. Section 10A of the 1959 Act and Section 9A of the 1961 Act read with Articles 243-K and 243-O, are pari material with Article 324 of the Constitution of India. In view of the judgments referred, we find that the remedy of an aggrieved person accepting or rejecting nomination of a candidate is by way of an election petition in view of the bar created under Section 15A of the 1959 Act. The said Act is a complete code providing machinery for redressal to the grievances pertaining to election as contained in Section 15 of the 1959 Act. The High Court though exercises extraordinary jurisdiction under Article 226 of the Constitution of India but such jurisdiction is discretionary in nature and may not be exercised in view of the fact that an efficacious alternative remedy is available and more so exercise restraint in terms of Article 243-O of the Constitution of India. Once alternate machinery is provided by the statute, the recourse to writ jurisdiction is not an appropriate remedy. It is a prudent discretion to be exercised by the High Court not to interfere in the election matters, especially after declaration of the results of the elections but relegate the parties to the remedy contemplated by the statute. In view of the above, the writ petition should not have been entertained by the High Court. However, the order of the High Court that the appellant has not furnished the election expenses incurred on the date of election does not warrant any interference.”

 The Court thus held that “the instant writ petition is not maintainable at all and the same is accordingly dismissed with liberty reserved to the petitioner to avail appropriate alternate remedy in accordance with law.” [Kauser v. State Election Commission,  2021 SCC OnLine HP 227, decided on 08-02-2021]


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Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Manoj K. Tiwari, J., disposed of a writ petition while issuing directions which was filed by the member of General Body of a Society, which runs a Government Aided Inter College, namely, “Inter College Kimsar, Pauri Garhwal”.

Petitioner contended that last election to constitute Committee of Management was held in the year 2010 and term of elected Committee of Management had expired in 2013 and no elections were held thereafter, thus he was before the Court.

The Court reminded that Section 34(4) of Uttarakhand School Education Act, 2006 provided for the appointment of Authorized Controller and proviso to Section 34(4) provided that Authorized Controller shall not continue for a period exceeding five years in a school. The second proviso to Section 34(4) of the Act, however, was an exception to the provision contained in the first proviso and it provided that in exceptional circumstances, the Authorized Controller may continue to function even after a period of five years.

The Court stated that Inter College Kimsar was a private educational institution, run by society and the college has to be managed by an elected Managing Committee, whose term would be three years and thus not holding elections was against the bye-laws of the society and duly approved Scheme of Administration of the college.

The Court disposed off the petition with directions of holding the elections.[Alam Singh Rawat v. Additional Director of Education,  2021 SCC OnLine Utt 45, decided on 07-01-2021]


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Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Manoj K. Tiwari, J., while allowing the present petition, issued directions for the conduct of elections in the institute in question, holding that, “Holding elections at regular intervals is mandated by law, to ensure that democratically elected Management Committee looks after the affairs of the college.”

 Background

Grievance of the petitioner is that last election to constitute Committee of Management was held in the year 2010 and term of elected Committee of Management expired in 2013 and no elections were held thereafter. Presently an Authorized Controller appointed by respondent 1, is looking after the affairs of the Inter College.

 Observation

Court noted the relevant provisions of the Uttarakhand School Education Act, 2006 and said, “Section 34(4) of Uttarakhand School Education Act, 2006 provides for appointment of Authorized Controller and proviso to Section 34(4) provides that Authorized Controller shall not continue for a period exceeding five years in a school. The second proviso to Section 34(4) of the Act, however, is an exception to the provision contained in the first proviso and it provides that in exceptional circumstances, the Authorized Controller may continue to function even after period of five years… In the present case, last election was held in the year 2010 and thereafter no election has been held. Such state of affairs is against the byelaws of the society and duly approved Scheme of Administration of the college. Thus it is in the interest of all concerned that elections to constitute Management Committee are held at the earliest.”

 Decision

While allowing the present petition, Court issued the following directions;

(i) Authorized Controller shall get advertisement published in two newspapers for inviting applications from eligible persons for induction as member of the society within two weeks.

(ii) Competent Authority shall thereafter prepare a voter list within next three weeks.

(iii) Competent Authority shall fix a date for election at the earliest, but not later than two weeks from the date of preparation of voter list.

(iv) Authorized Controller shall handover charge to the newly elected Managing Committee, within seven days from the date of declaration of result of election.[Alam Singh v. Additional Director of Education, 2021 SCC OnLine Utt 45, decided on 07-01-2021]


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