Kerala High Court
Case BriefsHigh Courts

Kerala High Court: In an appeal filed challenging the judgment of the Single Judge upholding the State Election Commission’s order of disqualifying the appellant from being a member of the Gram Panchayat and for further contesting as a candidate in an election to any local authorities for a period of six years., S. Manikumar, CJ. and Shaji P. Chaly, J. upheld the said decision and observed that the appellant has violated the requirements of law; which is clear proof to show that the appellant has joined the coalition in terms of the provisions of the Act and the Rules and contested and won the election as a candidate fielded by the said political party/ coalition.

In this case, the appellant, an elected candidate in the elections held to the Local Self Government Institutions has submitted in the nomination paper, that she is an independent candidate contesting without any help from any of the political parties or coalition. But, the respondent submitted that the appellant contested and won the election as an independent candidate, however, the sworn declaration in accordance with Rule 3(2) (c) of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 (‘Rules, 2000’) was given, affirming that she is the official candidate of Communist Party of India (Left Democratic Front); instead of making a declaration as provided under Section 3(1)(c) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999, (‘Act of 1999’) that she won the election as a candidate without any support of any political party or coalition. Thus, the action on the part of the appellant, who contested and won the election as an independent candidate, and thereafter joining a political party or coalition, shall acquire disqualification as per Section 3(1)(c) of the Act, 1999.

The Court observed that the Tenth Schedule of the Constitution of India deals with the provisions as to disqualification on ground of defection, and it applies to either House of Parliament or the Legislative Assembly; and Paragraph 2(2) of the schedule specifies that an elected member of a House, who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House, if he joins any political party after such election. Further, it is true that there was no proof to establish that the independent member joined a political party and contested the election, but the present case is entirely different due to the declaration made by the appellant quite contrary to the mandatory requirement of the Rules 2000, and thus, that by itself can turn out to be a relevant piece of evidence leading to the ultimate proof when considered along with other documentary and oral evidence.

The Court observed that in Abdul Haque v. Pathumma, 2004 SCC OnLine Ker 111 this Court had considered the question as to whether a mere support of a political party in favour of an independent candidate can be said to be a defection; and it was held that it is not so because, in that case, on evidence, it was found that the independent member did not make any declaration, contrary to the provisions of the Rules 2000, as in the instant case. It was further viewed that the pleadings and proof depend on the facts, law and circumstances of each case; and in the case at hand, it has got its own peculiar features and characteristics to reach the conclusion in terms of the Act, 1999 and Rules, 2000.

The Court referred to the decision in Jagjit Singh v. State of Haryana, (2006) 11 SCC 1, wherein the Court interpreted paragraph 2(2) of the Tenth Schedule of the Constitution and held that “the factum of joining can be inferred from facts and conduct of a member, without a member formally joining a political party, inasmuch as not filling form required to be filled by a member of the political party under the Rules and Regulations of that party or payment of any prescribed fee” and observed that reference to the relevant provisions of the Act, 1999 and the Rules, 2000 would make the situation clearer to arrive at a logical conclusion in the matter, and with respect to the implication of the proposition of law laid down by the Supreme Court in the afore-cited judgments.

Moreover, it was viewed that Section 3(1) of the Act of 1999 specifies that, the application of the provisions of the Act is notwithstanding anything contained in the Kerala Panchayat Raj Act, 1994 (‘Act of 1994’) or in the Kerala Municipality Act, 1994 or in any other law for the time being in force and subject to the other provisions of the Act of 1999 and it is a special statute governing election to the Self-Government Institutions.

Further, it was observed that clause (c) of Section 3(1) of the Act of 1999 specifies that if an independent member not belonging to any coalition, joins any political party or coalition; he shall be disqualified for being a member of that local authority. Further, Clauses (a), (b) and (c) of Sub-Rule 2 of Rule 3 of Rules, 2000 specifies that the independent candidate who contested election as a candidate of a coalition, or with the support of the coalition, and an independent candidate who contested the election otherwise than as the candidate of a political party or coalition in accordance with their candidature, necessarily have to file a declaration in accordance with the Rules after being elected as a member. Therefore, when the appellant contested as an independent candidate, otherwise as the candidate of political party or a coalition or as the candidate with the support of the same ,and instead of filing a declaration to that effect, filed a declaration that she has contested as an independent candidate of a party with the symbol of ‘table fan’, is absolutely against the mandatory requirement contained under Rule 3 (2)(c), and therefore, the disqualification contained under Section 3(1)(c) of the Act, 1999 is attracted.

It was viewed that the law relating to defection was made with the intention of upholding the constitutional principles, the democratic set up and the rule of law prevailing in the country and to sustain the faith of the citizens in the democratic set up of conducting elections; and for retaining and sustaining the confidence of the citizens on the candidates elected by the electorate, a strict view is to be adopted in the matter of defection. It is with the said basic intention that the Act, 1999 and Rules, 2000 were brought into force.

[Sheeba George v. State Election Commission of Kerala, 2022 SCC OnLine Ker 4808, decided on 28.09.2022]


Advocates who appeared in this case :

Counsel for the Appellants: Senior Advocate K.Ramakumar

Advocate T.Ramprasad Unni

Advocate S.M.Prasanth

Advocate R.S.Aswini Sankar

Advocate T.H.Aravind

Counsel for the Respondents: Advocate Deepu lal mohan,

Advocate T.K.ajithkumar

Advocate Alexander Joseph

Advocate C.Dilip

Advocate R.Pradeep

Case BriefsSupreme Court

Supreme Court: Answering an interesting question of law, the Bench of AM Khanwilkar* and CT Ravikumar, JJ has held that no remedy of appeal is envisaged against an order of the State Election Commission or its delegatee – the Collector, under Section 14B(1) of the Maharashtra Village Panchayats Act, 1959, rejecting the complaint or to drop the proceedings for declaration of a Sarpanch/Member having incurred disqualification.

The Court explained that such order becomes final and if passed by the Collector as the delegatee, is deemed to have been passed by the State Election Commission itself. Even the State Election Commission cannot step in thereafter in any manner much less in the guise of reconsideration or review of such order. It must follow that the Divisional Commissioner would have no jurisdiction (ab initio) to entertain assail to such an order of the Collector.

Issue

Whether an appeal could be filed before the Divisional Commissioner against an order passed by the Collector under Section 14B(1) of the Maharashtra Village Panchayats Act, 1959, declining to disqualify a Sarpanch/Member of the Panchayat for allegedly having failed to lodge an account of election expenses within the time and in the manner prescribed by the State Election Commission, without offering any good reason or justification for such failure?

Analysis

No appeal is provided against the order of Collector (or of State Election Commission) refusing to disqualify the Sarpanch/Member under Section 14B(1). Similarly, no appeal is provided even against the order of the Divisional Commissioner (or of State Election Commission) under Section 14B(2). A limited window against the order under Section 14B(1) passed by the Collector (or State Election Commission itself) declaring the Sarpanch/Member of a Panchayat as disqualified, is kept open before the Divisional Commissioner (or the State Election Commissioner, if the order under Section 14B(1) is or were to be 10 passed by the State Election Commission itself) – to remove such disqualification or to reduce the period thereof in deserving cases. To put it tersely, for the nature of power exercised by the State Election Commission under Section 14B, no remedy of appeal is envisioned by the statute.

The power of the State Election Commission, bestowed under sub-Section (1) or (2) of Section 14B, though concerns subject of disqualification of a person, it operates in two different silos. In that, the power under Section 14B(2) gets triggered only after an order of disqualification is passed under Section 14B(1). The former is not activated at all in a case where the application or the proceedings to declare the Sarpanch/Member as disqualified, is rejected or dropped.

“Taking any other view would inevitably result in a situation where the power exercised by the State Election Commission under Section 14B(1) could be appealed against before itself (its delegatee). That cannot be countenanced. For, an appeal cannot lie before the same Authority/functionary who had passed the order of rejection of prayer to declare the member concerned as disqualified. Sans an express statutory intent to provide appeal against the order rejecting application to declare a person disqualified, it must follow that upon passing such order the power under Section 14B is fully exhausted by the State Election Commission (or its delegatee, as the case may be).”

Indubitably, an authority rejecting the proposal regarding disqualification, cannot sit “in appeal” over its own order of rejection.  Notably, there is no express power bestowed upon the State Election Commission or its delegatee to review its own decision passed under Section 14B(1) or 14B(2) of the Act, as the case may be.

Concededly, Section 16 is a provision which speaks about the disability from continuing as the member of a Panchayat, consequent to incurring disqualification or has been so declared under Section 14 of the Act. Once a Sarpanch/Member is disqualified under Section 14B by virtue of an order under Section 14B(1), it would give rise to two situations –

First, the person concerned can invoke option under Section 14B(2) for removal of his disqualification or for reduction of the period of such disqualification.

Second, the obligation fastened upon the Collector to decide the issue as to whether vacancy has occurred on account of such disqualification.

That question is required to be answered by the Collector in the first instance, in terms of Section 16(2) and to take follow-up steps thereafter in filling up such vacancy. The decision of the Collector on such question, referable to sub¬Section (2) of Section 16, however, has explicitly been made appealable before the State Government or the delegate of the State Government. That is, completely, a different regime albeit  a consequence of process referred to in Section 14B(1) to declare a Sarpanch or a member as having   incurred disqualification.

“This question decided by the Collector, is essentially in his capacity as a delegatee of the State Election Commission and, de jure, deemed to have been decided by the State Election Commission itself.  Be that as it may, the question decided by the Collector under Section is, in one sense, a ministerial act bestowed upon him to ascertain whether vacancy had arisen as a consequence of the disqualification order and to fill up such vacancy.”

Hence, if the State Election Commission or its delegatee were to reject or drop the proceedings against the concerned person or member initiated under Section 14B(1), as being devoid of merits or for any other reason, the complainant does not have remedy of appeal against such decision. Such an order becomes final and is not appealable at all. Indeed, it can be assailed before the constitutional court under Article 226 of the Constitution of India.

[Shobhabai Narayan Shinde v. Divisional Commissioner, Nashik Division, 2022 SCC OnLine SC 7, decided on 04.01.2022]


Counsels

For appellants: Advocate Sudhanshu S. Choudhari

For respondent: Advocate Nishant R. Katneshwarkar


*Judgment by: Justice AM Khanwilkar

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

Karnataka High Court: A Division Bench of Abhay S. Oka CJ. and Ashok S. Kinagi J., while partly allowing the present petition, discussed the powers and obligations of the State Election Commission and the limited intervention of the State Government in exercise of such powers.

Background

By this petition under Article 226 of the Constitution of India, the petitioners have sought a writ of mandamus for enjoining the second respondent; the State Election Commission (for short ‘SEC’) to conduct elections to 6015  Grama Panchayats in the State of Karnataka before the expiry of five years term, as provided in clause (3) (a) of Article 243E of the Constitution of India. Apart from seeking the Writ of Mandamus, the challenge is also made against the order passed by the SEC on 28-05-2020, postponing the elections to all the Gram Panchayats in the State, owing to an ‘extraordinary situation’ created by the spread of COVID – 19. In its statement of objections filed on 30-06-2020, the SEC relied on the case of Kishansing Tomar v. Municipal Corporation of Ahmedabad, (2006) 8 SCC 352, where it was held by the Supreme Court that certain man-made calamities or natural calamities, which could prevent the authorities from holding elections can be treated as ‘exceptional circumstances’. It was then pleaded that COVID – 19 has created such extraordinary circumstances, that calls for postponement of the elections. Additional objections were filed to reiterate that all steps taken were in compliance with the statutory powers of the SEC and that there is no intention of delaying the elections for an undefined period. The State Government, echoing the same stand in its affidavit said, that there will be approximately 2,95,64,498 voters in the Grama Panchayat elections and the number of candidates may  be around 2,50,000. There is a likelihood of candidates and voters not strictly following the social distancing norms and failing to comply with the other standards released by the Ministry of Health, and therefore, it shall be in the interest of the public health and governance, to postpone the conduct of elections for the time being.

 Contentions

Shri Ravivarma Kumar, Senior Counsel appearing for the petitioners has referred to 73rd Constitutional Amendment. He pointed out that the entire object of the amendment was to ensure that the State  Government should not interfere with the local self-government and Panchayats. He further invited the Court’s attention to Article 243K of the  Constitution of India which lays down that the SEC is vested with the powers of superintendence, direction, control and preparation of electoral rolls as well as the conduct of elections of the Panchayats.

K. N. Phanindra, Senior  Counsel appearing for the SEC submitted that fixing of the schedule of elections and issuance of the calendar of events is within the exclusive domain of the SEC and it is an independent power of the SEC. He submitted that when it comes to elections to Panchayats and Municipal bodies, the SEC enjoins the same status as that of the Election Commission of India. He further pointed  out the steps taken by the SEC in this regard and submitted that tentative schedule of election has already been produced in a sealed cover along with the memo. He pointed out that in the meeting held between the SEC and the executive authorities, the majority of the Deputy Commissioners were of the view that elections should be held during November or  December, 2020.

Shri Prabhuling K. Navadgi, Advocate General for the State relied on the decision of the Supreme Court in K.S. Puttaswamy (Privacy-9J) v. Union of India, (2017) 10 SCC 1, and Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, arguing the need to achieve a balance between compelling State Interest and public health and the concept of Transformative Constitutionalism.

Observations

Drawing difference between the powers of SEC and the State Government with respect to conduct of elections, the Court observed, The SEC is an independent body created under the Constitution and the SEC must function independently of the State Government in exercise of its powers of superintendence, direction and control of Panchayat elections. The State Government has no control over the SEC in these matters. In fact, as held in the case of Kishansingh Tomar, the State is duty bound to abide by the directions of the SEC in the same manner in which it is under a mandate to follow the directions issued by the Election Commission of India during the election of Parliament and State Legislature.  In  fact, the  SEC while conducting elections of panchayats or Municipalities enjoys the same status which is enjoyed by the Election Commission of India for conducting elections for Parliament and State Legislature.”

With respect to the discretionary power of the SEC to decide of ‘exceptional circumstances’ to postpone the elections, the Court remarked, “(…)it is for the SEC to take a call and take a decision at its discretion on the existence of the exceptional circumstances. But SEC cannot altogether ignore the constitutional mandate. To meet  a  particular  contingency, the SEC can hold elections in a phase-wise manner.”

Dismissing the State’s argument of not being able to provide machinery for the proper conduct of elections, the court said, The stand of the Government cannot be accepted inasmuch as, when it comes to providing necessary staff for the conduct of elections, the State Government does not come into picture. It is for the Hon’ble Governor to provide requisite staff to the SEC.”

 Decision                 

Allowing writ of Mandamus, the Court held, “It is only in very exceptional circumstances that the SEC can conduct elections after expiry of the term of Panchayat. Whether such exceptional circumstances exist or not is a matter within the exclusive domain of the SEC. The State Government plays no role in deciding whether such exceptional circumstances are in existence. For deciding whether such circumstances are in existence, it is always open for the SEC to  consult the Government on factual aspects; We, therefore, direct the State Election Commission to finalize the schedule of elections of  Grama  Panchayats.”[KC Kondaiah v. State of Karnataka, WP No. 7987 of 2020, decided on 13-11-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The Bench of  Shaji P. Chaly, J. hearing a civil writ petition pertaining to a no-confidence motion filed against President of a Gram Panchayat, held that a person accused of defection is entitled to act as a member of the Panchayat until the date of the order of the Commission declaring him as disqualified.

The present petition had been filed by President of the Edavilangu Grama Panchayat who was ousted from his office by carrying out a motion of no-confidence. Consequent to this alleged defection that had taken place in the Panchayat committee, two petitions had been filed by third-parties under Section 4 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999. Petitioner was not a party in these two petitions. His grievance was that without considering the pending petitions, no-confidence motion had been proposed to be considered, i.e., he was sought to be automatically disqualified on the ground of defection.

Petitioner’s contention was that State Election Commission does not have the power to grant any interim order so as to prevent a party from participating in any proceeding under a no-confidence motion; and that he was entitled to act as a member of the Panchayat until the Election Commission’s order declaring him as disqualified.

The Court took note of the judgment in Nattakam Suresh v. Kerala State Election Commission, 2009 SCC OnLine Ker 3917 where it was opined that there is no automatic disqualification of a member on the ground of defection. The Election Commission is not empowered to pass any interim order interdicting the continuance of a member of a local authority and it must dispose of the petition pending before it declaring the alleged defector as disqualified.

In view of the above, the instant petition was allowed and Election Commission was directed to decide petitions pending before it at the earliest. [Aadarsh A.P. v. Block Development Officer, 2019 SCC OnLine Ker 101, Order dated 10-01-2019]