Madras High Court
Tamil Nadu State Election Commission vs Dravida Munnetra Kazhagam on 24 April, 2017
Bench: Indira Banerjee, M.Sundar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on
:
01.08.2017
Delivered on
:
04.09.2017
CORAM:
THE HON'BLE MS. INDIRA BANERJEE, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE M.SUNDAR
W.A.No.1268 of 2016 and
W.P.Nos.14381 and 18141 of 2017
W.A.No.1268 of 2016:
Tamil Nadu State Election Commission
rep. by Tamil Nadu State Election Commissioner
No.208/2, Jawaharlal Nehru Road
Opp. to CMBT, Arumbakkam
Chennai 600 106. .. Appellant
Vs
1 Dravida Munnetra Kazhagam
rep. by its Organization Secretary, R.S.Bharathi
DMK Head Quarters, 'Anna Arivalayam'
367 and 369, Anna salai
Chennai 600 018.
2 The Secretary to Government
Rural Development and Panchayat Raj Department
Government of Tamil Nadu
Secretariat, Fort St. George
Chennai 600 009.
3 The Director of Town Panchayats
Kuralagam, Chennai 600 001.
4 The Commissioner
Corporation of Chennai
Rippon Building
Chennai 600 003.
5 G.Jayavel
6 CHANGEindia
rep. by its Director, A.Narayanan
No.7C, Daffodil, Ceebros Gardens
Arcot Road, Virugambakkam
Chennai 600 092.
(R5 & R6 impleaded vide
order dated 24.4.2017 made in
W.A.No.1268 of 2016 and CMP
Nos.4974 and 6656/2017) .. Respondents
PRAYER: Appeal under Clause 15 of the Letters Patent against the order dated 4.10.2016 passed by the learned Single Judge in W.P.No.33984 of 2016.
W.P.No.14381 of 2017
CHANGEindia
rep. by its Director, A.Narayanan
No.7C, Daffodil, Ceebros Gardens
Arcot Road, Virugambakkam
Chennai 600 092. .. Petitioner
Vs.
1 The Government of Tamil Nadu
rep. by the Chief Secretary
Secretariat, Fort St. George
Chennai 600 009.
2 The Principal Secretary to Government
Rural Development and Panchayat Raj
Secretariat, Fort St. George
Chennai 600 009.
3 The Principal Secretary to Government
Municipal Administration and Water Supply
Secretariat, Fort St. George
Chennai 600 009.
4 The Commissioner
Corporation of Chennai
Rippon Building, Chennai 600 003.
5 Tamil Nadu State Election Commission
rep. by the Tamil Nadu State Election Commissioner
No.209/2, Jawaharlal Nehru Road
Opp. to CMBT, Arumbakkam
Chennai.
6 Dravida Munnetra Kazhagam
rep. by its Organization Secretary, R.S.Bharati
DMK Head Quarters, 'Anna Arivalayam'
367 and 369, Anna salai
Chennai 600 018.
7 M.Palanimuthu .. Respondents
PRAYER: Petition under Article 226 of the Constitution of India seeking issuance of a writ of Declaration, declaring the promulgation of the Tamil Nadu Municipal Laws (Third Amendment) Ordinance, 2016 (Tamil Nadu Ordinance 2 of 2016) and promulgation of the Tamil Nadu Panchayats (Third Amendment) Ordinance, 2016 (Tamil Nadu Ordinance 1 of 2016) and notification of G.O.Nos.145, 146, 147 and also G.O.Nos.124, 125 and 126 appointing Special Officers for the urban and rural local bodies respectively till 31.12.2016 and further extension of their tenure till 30.6.2017 as ultra vires of the Constitution.
W.P.No.18141 of 2017:
Dravida Munnetra Kazhagam
rep. by its Organization Secretary, R.S.Bharathi
DMK Head Quarters, 'Anna Arivalayam'
367 and 369, Anna salai
Chennai 600 018. .. Petitioner
Vs.
1 The State of Tamil Nadu
rep. by its Chief Secretary to Government
Fort St. George, Secretariat
Chennai 600 009.
2 The Principal Secretary to Government
Rural Development and Panchayat Raj Department
Fort St. George, Secretariat
Chennai 600 009.
3 The Secretary to Government
Municipal Administration and Water Supply Department
Fort St. George, Secretariat
Chennai 600 009.
4 The State Election Commissioner, Tamil Nadu
No.208/2, Jawaharlal Nehru Road
Opp. to CMBT, Arumbakkam
Chennai 600 106.
5 The Tamil Nadu State Election Commission
rep. by its Secretary
No.208/2, Jawaharlal Nehru Road
Opp. to CMBT, Arumbakkam
Chennai 600 106.
6 M.Malik Feroze Khan, IAS (R)
State Election Commissioner
No.208/2, Jawaharlal Nehru Road
Opp. to CMBT, Arumbakkam
Chennai 600 106. .. Respondents
PRAYER: Petition under Article 226 of the Constitution of India seeking issuance of a writ of Mandamus directing the respondents to hold elections to all local bodies in the State of Tamil Nadu including Panchayats and Municipalities, by exercising the powers under Articles 243-K and 243-ZA of the Constitution of India within a stipulated time.
For Appellant in W.A.No. 1268 of 2016; respondents 4 and 5 in W.P.No.18141 of 2017 and 5th respondent in W.P.No.14381 of 2017
:
Mr.B.Kumar, Senior Counsel
for Mr.B.Nedunchezhiyan
For 1st respondent in W.A.No.1268 of 2016; Petitioner in W.P.No.18141 of 2017; and 6th respondent in W.P.No. 14381 of 2017
:
Mr.P.Wilson, Senior Counsel
for M/s.P.Wilson & Associates
for Mr.R.Girirajan, and
for Mr.R.Neelakandan
For Petitioner in W.P.No.14381 of 2017
:
Mr.N.L.Rajah, Senior Counsel
for Mr.S.M.Vivek Anandh
For Respondents 2 and 3 in W.A.No.1268 of 2016; Respondents 1 to 3 in W.P.Nos.18141 and 14381 of 2017
:
Mr.R.Muthukumarasamy
Advocate General
assisted by
Mr.M.K.Subramanian
Government Pleader and
Mr.E.Manoharan
Addl. Government Pleader
For 4th respondent in W.P.No.14381 of 2017
:
Mr.K.Soundararajan
For 7th respondent in W.P.No.14381 of 2017
:
Mr.M.Palanimuthu
(Intervenor)
For 4th respondent in W.A.No.1268 of 2016
:
Mr.R.Arunmozhi
For 5th respondent in W.A.No.1268 of 2016
:
Mr.N.R.Chandran, Sr. Counsel
for Mr.R.Natarajan
For 6th respondent in W.A.No.1268 of 2016
:
Ms.Kavitha
COMMON JUDGMENT
HON'BLE CHIEF JUSTICE The appeal, being W.A.No.1268 of 2016, filed by the Tamil Nadu State Election Commission, represented by the Tamil Nadu State Election Commissioner, Chennai, is against an order dated 4.10.2016 passed by the learned Single Judge in W.P.No.33984 of 2016 filed by the first respondent, Dravida Munnetra Kazhagam, inter alia, challenging notifications announcing elections to local bodies in the State of Tamil Nadu.
2. The appeal was heard along with two other writ petitions relating to the holding of elections to local bodies in the State of Tamil Nadu, Writ Petition No.14381 of 2017 filed by CHANGEindia, hereinafter referred to as the first writ petition and Writ Petition No.18141 of 2017 filed by Dravida Munnetra Kazhagam, hereinafter referred to as the second writ petition. The appeal and the writ petitions are now being disposed of by this common judgment and order.
3. The first writ petition filed by CHANGEindia is for a declaration that promulgation of Tamil Nadu Municipal Laws (Third Amendment) Ordinance, 2016, since replaced by the Tamil Nadu Municipal Laws (Third Amendment) Act, 2016 and the Tamil Nadu Panchayats (Third Amendment) Ordinance, 2016, since replaced by the Tamil Nadu Panchayats (Third Amendment) Act, 2016, as also G.O.Nos.145, 146, 147 and G.O.Nos.124, 125 and 126 appointing Special Officers for Urban and Rural local bodies till 31.12.2016 and further extending their tenure till 30.6.2017 are ultra vires the Constitution.
4. The second writ petition, which is filed by the first respondent in W.A.No.1268 of 2016, Dravida Munnetra Kazhagam, is for a writ of mandamus directing the respondents to hold elections to all local bodies in the State of Tamil Nadu, including Panchayats and Municipalities by exercise of powers under Articles 243-K and 243-ZA of the Constitution of India.
5. There are also several Special Leave Petitions pending in the Supreme Court in relation to local body elections, namely (i) S.L.P. (C) No.28918 of 2016 (R.Jothiswaran v. Secretary, Governor's Secretariat and others); (ii) Special Leave to Appeal (C) No.9472 of 2017 (P.K.Ganesan v. T.N.State Election Commission and others); and (iii) Special Leave to Appeal (C) Nos.28881-28883 of 2016 (D.M.K. v. Secretary, Governor's Secretariat and others), against an order dated 21.9.2016 passed by a Division Bench of this Court in seven earlier writ petitions filed by the Dravida Munnetra Kazhagam, seeking various orders/directions in relation to local body elections in the State of Tamil Nadu being Writ Petition Nos.23411, 23417, 23418, 28370, 28371, 29060 and 29797 of 2016, along with connected applications, inter alia holding that the amendments to the Tamil Nadu Municipal Laws and the Tamil Nadu Panchayat Laws, were not violative of the Constitution.
6. The Special Leave to Appeal (C) No.9472 of 2017/Civil Appeal No.5471 of 2017 (P.K.Ganesan v. T.N.State Election Commission and others) had been directed to be listed on 16.8.2017. We are informed that on 16.8.2017, a bench of the Supreme Court comprised of the Hon'ble Justices J.Chelameswar and S.Abdul Nazeer observed that local body elections due in October, 2016, but not held so far, had nothing to do with delimitation of wards on the basis of 2011 population census by the Delimitation Commission set up in July, 2017.
7. The other Special Leave to Appeal (C) No.4878 of 2017 (P.K.Ganesan v. T.N.State Election Commission and others) is against an interim order dated 21st February, 2017 passed by a Division Bench of this Court in this appeal, issuing directions relating to the holding of local body elections in the State of Tamil Nadu.
8. Part IX of the Constitution deals with the Panchayats, which are institutions of self-governance constituted under Article 243-B of the Constitution for the rural areas. Some of the relevant provisions of the Constitution and in particular Articles 243-C, 243-D and 243-E of the Constitution are set out herein below for convenience:
Article 243-C. Composition of Panchayats.
(1) Subject to the provisions of this Part, the Legislature of a State may, by law, make provisions with respect to the composition of Panchayats:
Provided that the ratio between the population of the territorial area of a Panchayat at any level and the number of seats in such Panchayat to be filled by election shall, so far as practicable, be the same throughout the State.
(2) All the seats in a Panchayat shall be filled by persons chosen by direct election from territorial constituencies in the Panchayat area and, for this purpose, each Panchayat area shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it shall, so far as practicable, be the same throughout the Panchayat area.
Article 243-D. Reservation of seats.
(1) Seats shall be reserved for-
(a) The Scheduled Castes; and
(b) The Scheduled Tribes, in every Panchayat and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Panchayat as the population of the Scheduled Castes in that Panchayat area or of the Scheduled Tribes in that Panchayat area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Panchayat.
(2) Not less than one-third of the total number of seats reserved under clause (1) shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes.
(3) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Panchayat.
(4) The offices of the Chairpersons in the Panchayats at the village or any other level shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide:
Provided that the number of offices of Chairpersons reserved for the Scheduled Castes and the Scheduled Tribes in the Panchayats at each level in any State shall bear, as nearly as may be, the same proportion to the total number of such offices in the Panchayats at each level as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State bears to the total population of the State:
Provided further that not less than one-third of the total number of offices of Chairpersons in the Panchayats at each level shall be reserved for women:
Provided also that the number of offices reserved under this clause shall be allotted by rotation to different Panchayats at each level.
(5) The reservation of seats under clauses (1) and (2) and the reservation of offices of Chairpersons (other than the reservation for women) under clause (4) shall cease to have effect on the expiration of the period specified in Article 334.
(6) Nothing in this Part shall prevent the Legislature of a State from making any provision for reservation of seats in any Panchayat or offices of Chairpersons in the Panchayats at any level in favour of backward class of citizens.
Article 243-E. Duration of Panchayats, etc. (1) Every Panchayat, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer.
(2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Panchayat at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in clause (1).
(3) An election to constitute a Panchayat shall be completed-
(a) Before the expiry of its duration specified in clause (1);
(b) Before the expiration of a period of six months from the date of its dissolution:
Provided that where the remainder of the period for which the dissolved Panchayat would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Panchayat for such period.
(4) A Panchayat constituted upon the dissolution of a Panchayat before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Panchayat would have continued under clause (1) had it not been so dissolved. (emphasis supplied)
9. The proviso to Clause (1) of Article 243-C of the Constitution of India provides that the ratio between the population of the territorial area of a Panchayat at any level and the number of seats in such Panchayat to be filled by election shall, so far as practicable, be the same throughout the State. Clause (2) of Article 243-C of the Constitution provides that all seats in a Panchayat are to be filled by persons chosen by direct election from territorial constituencies in the Panchayat area and, for this purpose, each Panchayat area shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it shall, so far as practicable, be the same throughout the Panchayat area. Article 243-D of the Constitution of India provides for reservation of seats for Scheduled Castes and Scheduled Tribes in every Panchayat.
10. Chapter IX-A of the Constitution of India deals with constitution of Municipalities. Some of the relevant provisions of Chapter IX-A are set out herein below for convenience:
Article 243-Q. Constitution of Municipalities.-
(1) There shall be constituted in every State,
(a) a Nagar Panchayat (by whatever name called) for a transitional area, that is to say, an area in transition from a rural area to an urban area;
(b) a Municipal Council for a smaller urban area; and
(c) a Municipal Corporation for a larger urban area, in accordance with the provisions of this Part:
Provided that a Municipality under this clause may not be constituted in such urban area or part thereof as the Governor may, having regard to the size of the area and the municipal services being provided or proposed to be provided by an industrial establishment in that area and such other factors as he may deem fit, by public notification, specify to be an industrial township.
(2) In this article, a transitional area, a smaller urban area or a larger urban area means such area as the Governor may, having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in non-agricultural activities, the economic importance or such other factors as he may deem fit, specify by public notification for the purposes of this Part.
Article 243-R. Composition of Municipalities.-
(1) Save as provided in clause (2), all the seats in a Municipality shall be filled by persons chosen by direct election from the territorial constituencies in the Municipal area and for this purpose each Municipal area shall be divided into territorial constituencies to be known as wards.
(2) The Legislature of a State may, by law, provide
(a) for the representation in a Municipality of
(i) persons having special knowledge or experience in Municipal administration;
(ii) the members of the House of the People and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly the Municipal area;
(iii) the members of the Council of States and the members of the Legislative Council of the State registered as electors within the Municipal area;
(iv) the Chairpersons of the Committees constituted under clause (5) of article 243S:
Provided that the persons referred to in paragraph (i) shall not have the right to vote in the meetings of the Municipality;
(b) the manner of election of the Chairperson of a Municipality.
Article 243-S. Constitution and composition of Wards Committees, etc.-
(1) There shall be constituted Wards Committees, consisting of one or more wards, within the territorial area of a Municipality having a population of three lakhs or more.
Article 243-T. Reservation of seats.-
(1) Seats shall be reserved for the Scheduled Castes and the Scheduled Tribes in every Municipality and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Municipality as the population of the Scheduled Castes in the Municipal area or of the Scheduled Tribes in the Municipal area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Municipality.
(2) Not less than one-third of the total number of seats reserved under clause (1) shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes.
(3) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Municipality.
(4) The offices of Chairpersons in the Municipalities shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide.
(5) The reservation of seats under clauses (1) and (2) and the reservation of offices of Chairpersons (other than the reservation for women) under clause (4) shall cease to have effect on the expiration of the period specified in Article 334.
(6) Nothing in this Part shall prevent the Legislature of a State from making any provision for reservation of seats in any Municipality or offices of Chairpersons in the Municipalities in favour of backward class of citizens.
Article 243U. Duration of Municipalities, etc.-
(1) Every Municipality, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer:
Provided that a Municipality shall be given a reasonable opportunity of being heard before its dissolution.
(2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Municipality at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in clause (1).
(3) An election to constitute a Municipality shall be completed,
(a) before the expiry of its duration specified in clause (1);
(b) before the expiration of a period of six months from the date of its dissolution:
Provided that where the remainder of the period for which the dissolved Municipality would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Municipality for such period.
(4) A Municipality constituted upon the dissolution of a Municipality before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Municipality would have continued under clause (1) had it not been so dissolved.
Article 243ZG. 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 243ZA shall not be called in question in any court;
(b) no election to any Municipality 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.
11. In view of Article 243-ZG of the Constitution, the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made under Article 243-ZA is not to be called in question in any Court. No election to any Municipality is to be called in question except by an election petition presented to such authority and in such manner as provided for by or under any law made by the Legislature of the State. There is no challenge to the vires of Article 243-ZG of the Constitution.
12. The Tamil Nadu State Election Commission issued the two impugned Notifications, one being S.O.No.37/2016/TNSEC/PE-I, dated 25.9.2016 in exercise of power under Section 239(1) of the Tamil Nadu Panchayats Act, 1994, announcing electing of Panchayat Members, and the other being S.O.No.36/2016/TNSEC/ME-1, also dated 25.9.2016, in exercise of powers inter alia under Section 43-B(1) of the Tamil Nadu District Municipalities Act, 1920, Section 6-I of the Chennai City Municipal Corporation Act, 1919 and other similar enabling provisions of statutes relating to different Municipal Corporations, Town Panchayats, etc., announcing election of Ward Members and/or Councillors of Town Panchayats, Municipalities and Corporations.
13. In the writ petition, being W.P.No.33984 of 2016, which led to the judgment and order dated 4.10.2016 under appeal in the writ appeal being W.A.No.1268 of 2016, Dravida Munnetra Kazhagam, a political party which had ruled the State for many years and presently constitutes the main opposition, challenged the notifications announcing the elections.
14. Dravida Munnetra Kazhagam had also filed seven writ petitions relating to the holding of the local body elections, which have given rise to a common judgment and order dated 21.9.2016, which is under challenge in the Hon'ble Supreme Court, as stated herein above.
15. In Writ Petition No.33984 of 2016, in which the judgment and order under appeal has been passed, Dravida Munnetra Kazhagam contended that the constitutional mandate of proportionate reservation to Scheduled Tribes had not been made for the local body elections. The mandate of Articles 243-D and 243-T of the Constitution had thus been contravened. The notification dated 25.9.2016 was challenged on several grounds. One of the grounds of challenge was that sufficient time had not been given to the parties to get ready for the election and reservation had not been made as per the population.
16. In the writ petition that has given rise to the appeal, the grounds urged were in a nutshell as follows:
i.Reservation of seats for Scheduled Castes and Tribes was not proportionate to their population.
ii.Sufficient time had not been given to political parties and individual contestants to get ready for the elections.
iii.As per Rule 24 of the Tamil Nadu Panchayats (Elections) Rules, 1995, two notifications had to be issued, one specifying the date and the other giving the poll schedule, whereas in this case there was only one.
iv.Election notification was belatedly published on the website on 27.9.2016.
v.Ruling party had prior knowledge about elections, including reserved seats, enabling them to announce their candidates on 26.9.2016. Other parties were at a disadvantage as they had no knowledge.
vi.Respondents could not take advantage of their own wrong in not effecting delimitation of wards/constituencies on the basis of population as per the last census and giving inadequate notice which was otherwise legally invalid, by recourse to Articles 243-E and 243-U of the Constitution.
17. The learned Single Bench found:
As per the data given, the total number of District Panchayat Chairpersons available for 2006, 2011 was 31 only. The number of seats reserved for Scheduled Tribes in 2006 and 2011 was nil, as the population was less than 0.5% and therefore, no seat was allotted either in 2006 or in 2011. Whereas as per 2011 population census, Scheduled Tribe population of the State is 66,90,086 which is 1.653% and for the total number of 32 posts, the number of seats available for Scheduled Tribes is 0.56% and therefore, it has been rounded of and one seat has been reserved for District Panchayat Chairman. Similarly, for Chairperson of Panchayat Unions are concerned, in 2006 and 2011, based on 2001 census, total Scheduled Tribe population was 1.496% and considering the availability of 385 chairman posts, 4 posts were given in 2006 and 2011 whereas in 2016, the total Scheduled Tribe Population is 1.653% and therefore, out of 388 chairman posts, 6 posts have been reserved for Scheduled Tribe. Similarly in respect of Village Panchayat in 2006, 156 posts were reserved out of 12,618 posts and in 2011, 152 posts were reserved out of 12,524 and in 2016, out of 12,524 posts 207 posts have been reserved for Scheduled Tribes and there is an increase in number of seats reserved for Scheduled Tribes in 2016 compared to 2006 and 2011 period.
17. The number of Chairpersons reserved for Scheduled Tribes in Town Panchayats is again based on the population of the State. In 2006, out of 561 Town Panchayats, 3 posts were reserved for 2006 and 2011 and the same is maintained even in 2016 also.
MUNICIPALITIES
18. As far as Chairpersons reserved for Scheduled Tribes in Municipalities are concerned, taking into consideration the population in the municipal area, namely 0.42%, one post was reserved as Chairperson of municipality, namely Gudalur (Nilgiris). The abstract of the Chairpersons of Municipalities reserved for the Urban Local Body Elections 2016 is furnished below:
S.No. Category No. of Offices 1 Scheduled Caste 17 2 Scheduled Tribe 1 3 Women (General) 52 4 General 54 MUNICIPAL CORPORATIONS Similarly in respect of reservation for Chairperson in Municipal Corporations, the percentage of Scheduled Tribe Population is 0.22% as per 2011 census and therefore, no seat has been reserved for Scheduled Tribe. The following is the tabulation giving the details of reservation in Municipal Corporation for the Local Body Elections 2016:
S.No. Category No. of Offices 1 Scheduled Tribe 2 2 Women (General) 5 3 General 5 TOWN PANCHAYATS
19. Insofar as Town Panchayats are concerned, in 2006 and 2011, 25 seats were reserved for Scheduled Tribes and whereas in 2016, 26 seats have been reserved.
WARDS
20. In District Wards, 8 Wards were reserved during 2006 and 2011 and it got increased to 9 Wards in 2016. 64 Wards were reserved for Schedule Tribes in Panchayat Union during 2006 and 2011 and also in 2016, based on the total population of Panchayat Union. Village Panchayat Wards are decided according to concerned village population. In 2011, 1,040 Wards were reserved and it has been increased to 1,121 with an increase of 21 seats in 2016.
21. The above data would categorically prove that reservation has been made to various categories according to their percentage in the total population as per yardsticks prescribed under Sections 11, 20, 32 and 57 of the Panchayats Act, 1994. Elections were conducted in 2006 and 2011 based on 2001 census and 2016 is to be conducted as per 2011 census. Further, the details would show that regarding number of seats reserved, either Status Quo is maintained or there is appropriate increase in number of seats for Scheduled Tribes. Hence, the contention that there is no proportionate reservation for Scheduled Tribe according to their population is without any substance and there is no violation of Constitutional directives. Consequently, the impugned Government Orders viz., G.O.Ms. Nos. 103, 105, 106 dated 16.09.2016 as well as notification dated 18.09.2016 in Roc. No. 12318/2016/C2 issued by the respondents are valid.
18. Taking into consideration Article 243-ZG of the Constitution, validity whereon was not under challenge, the learned Single Bench held that the High Court had no jurisdiction to entertain a writ petition on the grounds of arbitrary reservation or defective electoral roll.
19. The learned Judge, however, accepted the argument of the writ petitioner of contravention of Rule 24 of the Tamil Nadu Panchayats (Elections) Rules, 1995 in issuance of the election notification.
20. Mr.P.Wilson, learned Senior Counsel appearing on behalf of Dravida Munnetra Kazhagam, submitted that no post of Chairman in any Corporation had been reserved for Scheduled Tribes and for other local bodies, namely, Panchayat, Panchayat Union, District Union and Wards. The number of seats reserved was less.
21. Mr.P.Wilson argued that even though Scheduled Tribes constituted 0.38% of the population of the City of Chennai, no seats had been reserved for them.
22. The operative part of the judgment and order dated 4.10.2016, under appeal is extracted herein below for convenience:
42. While upholding the impugned Government Orders, to maintain purity in public life, this Court moulds the relief and gives the following directions:
(i) Election Notifications dated 26.09.2016 issued for conduct of Local Body Election by the State Election Commission on 17.10.2016 and 19.10.2016 are vitiated for non-compliance of Rule 24 of the Tamil Nadu Panchayat (Elections) Rules, 1995.
(ii) The State Election Commission is directed to issue fresh notifications, conduct elections and complete the election process, as per law, at the earliest, not later than 31.12.2016.
(iii) The State government is directed to invoke Section 261-Transitory provision of the Tamil Nadu Panchayats Act, 1994, to administer the Local Bodies by appointment of Special Officers till the elections are held, as the present terms of the present Local Bodies are to expire soon and the same cannot be extended beyond five years.
(iv) The State Government shall amend Rule 26 of the Tamil Nadu Panchayats (Election) Rules, 1995 by insertion of a sub-rule to incorporate State Election Commission Notification bearing S.O.No.43/2006/EG dated 01.09.2006 mandating the candidates desiring to contest to a local body, to file a separate affidavit, to furnish full and complete information, in regard to five categories, including criminal background, at the time of filing nomination, at the earliest.
(v) The State Election Commission shall follow its notification bearing S.O.No.43/2006/ EG dated 01.09.2006 by suitably and strictly informing the Election Officers to reject the nominations of candidates who fail to file affidavit, as per the above notification dated 01.09.2006.
(vi) The State Election Commission shall sensitise the public especially candidates about its notification dated 01.09.2006 requiring affidavit disclosing criminal cases against the candidate by issue of advertisements so that the voters would be informed about the details of the candidates.
(vii) The State Election Commission shall consolidate, record and data base the details provided by the candidates in the form of affidavits and upload them in its website.
(viii) The State Government and State Election Commission shall look into and decide about complaints regarding reservation, de-reservation of posts, deletion or addition of genuine eligible voters and enrolment of bogus voters etc., before conducting the election, after issuance of fresh election notifications.
(ix) The State Election Commission shall write to recognised and registered political parties/ organisations, in exercise of power under Article 243K of the Constitution of India asking them not to field/sponsor any candidate with criminal background/history for the local body election within four weeks to prevent criminalisation and hijacking of local bodies by criminal elements.
23. The learned Advocate General appearing on behalf of the State of Tamil Nadu submitted that in accordance with the endeavour of the State Government to comply with its constitutional mandate of conducting elections to local bodies before the expiry of the term as enshrined under Article 243-E of the Constitution of India, elections to the local bodies were announced.
24. The learned Advocate General submitted that even though there is another constitutional mandate under Article 243-C to delimit wards as per latest census data, the Government decided to conduct local body elections without going through the process of delimitation of wards as per the census of 2011 in order to ensure that the electoral process was completed by October, 2016.
25. Accordingly, to retain the existing territorial wards for the ensuing elections without delimitation, amendments were made to the Tamil Nadu Panchayats Act, 1994, Tamil Nadu District Municipalities Act, 1920 and laws relating to Municipal Corporations in the State. He further stated that many writ petitions were filed seeking directions on the respondents to undertake delimitation prior to elections and rotate the reservation of wards, which had remained the same for about 20 years.
26. The learned Advocate General further submitted that the consultation with Tamil Nadu State Election Commission was completed by September, 2016 and the entire administrative machinery of election officers and police personnel was placed at the disposal of State Election Commission for conduct of elections. On 26.9.2016, the Tamil Nadu State Election Commission notified the programme of elections, pursuant to which 4.9 lakh nominations were received from the candidates till 3.10.2016, which was the last date for filing nominations. However, on 4.10.2016, a Single Bench of this Court issued the order in W.P.No.33984 of 2016 under appeal, as a result of which the election process could not be completed.
27. The Single Bench has cancelled the election notification of the Tamil Nadu State Election Commission dated 25.9.2016 and issued various directions to the Tamil Nadu State Election Commission which have been set out herein before.
28. The learned Advocate General submitted that the State Government had taken earnest steps to fulfill the directions of the High Court. However, some of the directions were difficult to implement.
29. The learned Advocate General also drew the attention of this Court to the appeal filed by the Dravida Munnetra Kazhagam in the Supreme Court against the order of the Division Bench dated 21.9.2016 in W.P.No.23411 of 2016, whereby the Court had permitted the conduct of elections without delimitation.
30. The learned Advocate General submitted that by reason of the litigation, there was a break in the chain of the election process and there was also a breach of the constitutional obligation under Article 243-E of the Constitution of India.
31. It appears that the present wards of local bodies is based on 1991 Census. It is alleged from various quarters that there are wide disparities in the ward population within the local bodies. This was due to population changes that had taken place in the last 20 years. Wards have also become truncated due to merger of certain rural local bodies with urban local bodies.
32. Delimitation of wards has an impact on reservation of seats for Scheduled Castes and Scheduled Tribes as well as women. If elections are held with disparities in ward population, discrepancies in the democratically elected local bodies at the grass-root level would continue for next five years, as argued by the learned Advocate General.
33. The learned Advocate General submitted that completion of the delimitation process would enable the State Government to fully discharge the constitutional obligations imposed on the State under Article 243-C of the Constitution.
34. The learned Advocate General submitted that the Government had already taken the following steps:
i.Formation of a Special Team vide G.O.(D) No.230, RD & PR (PR-1) Department dated 11.5.2017, with the express task of studying the Delimitation Commission in the nearby State of Kerala which had taken up and completed the Delimitation exercise in a shortest possible time of 4-5 months and to submit a report.
ii.Enactment of Tamil Nadu Delimitation Committee Act, 2017 vide Notification published in Tamil Nadu Government Gazette Extrordinary No.223 dated 11.7.2017, for the constitution of Delimitation Commission for delimitation of territorial wards of Village Panchayats, Panchayat Unions, District Panchayats, Town Panchayats, Municipalities and Municipal Corporations and for matters connected therewith or incidental thereto.
iii.Constitution of Delimitation Commission by a Notification in the Tamil Nadu Government Gazette No.245 dated 21st July 2017.
35. The learned Advocate General submitted that, as a follow up, the Delimitation Commission has commenced its activities and has held its 1st meeting on 24.07.2017. The proceedings of the meeting communicated in the form of Minutes have clearly pointed out the disparities in the Ward population in various local bodies. This indicates that there is an immediate and impending necessity to rectify all these anomalous conditions in the existing wards of the Local Bodies. This rectification is mandated as per the provisions under Article 243-C of the Constitution of India.
36. Pursuant to observations of the Court in the course of hearing of the writ petitions, the State Government submitted a time schedule for delimitation of local bodies as also elections. As per the time schedule direct elections are to be completed by 31.1.2018 and indirect elections by 15.2.2018.
37. On behalf of the State, it is submitted that certain difficulties such as unprecedented drought after a gap of 142 years due to 62% deficit rainfall during the last North-East Monsoon has engaged the entire administrative machinery in drought relief activities round the clock. Nearly 14,000 petitions in respect of Rural Local Bodies and 89,525 petitions in respect of Urban Local Bodies have been received regarding shortage of drinking water supply and these issues had to be solved immediately avoiding any untoward law and order incidents, by restoration of water supply by tankers and by creation of new water sources. South-West Monsoon had also not brought the much needed relief. Furthermore, the most celebrated festival in Tamil Nadu, Vinayaka Chathurthi falls on 25.8.2017 and it would be difficult to set apart the police personnel one week prior and one week after the said date.
38. It is also submitted that the election process would require 16,748 Returning Officers and Assistant Returning Officers, 4.36 lakh Polling Officials, apart from police personnel. All these officers who are otherwise available for election work are at present addressing the water supply issues and taking drought mitigation activities. Placing the entire administrative machinery at the disposal of the Election Commission for a period of approximately 50 days would paralyze these activities which are being taken up on priority basis to avoid crisis situation.
39. The learned Advocate General also argued that serious questions of law have been raised before the Supreme Court regarding delimitation which will have wide ramifications in the local body elections and proceeding with elections without waiting for the outcome of the proceedings in the Supreme Court relating to delimitation could lead to huge waste of funds to the tune of Rs.175 crores.
40. Difficulties such as drought can be no ground for not holding elections to local bodies in view of the mandate of Articles 243-E and 243-U of the Constitution of India. Similarly, the mere fact that Vinayakar Chathurthi was to fall on 25.8.2017 was no ground not to hold elections. Be that as it may, a week has lapsed since 25.8.2017 and there can be no impediment on that ground any longer.
41. The learned Advocate General submitted that the State Government has consistently been taking earnest steps for conduct of local body elections as per the constitutional mandate and has always been providing support of funds and manpower to the Tamil Nadu State Election Commission. However there are certain constraints at this crucial juncture for reasons stated above.
42. The learned Advocate General submitted that the delimitation process which has started now could be completed by the 4th week of December, 2017; direct elections could be completed within four weeks thereafter, i.e., within 31.1.2018, and the indirect elections could be completed within two weeks thereafter, i.e., 15.2.2018.
43. The issue of vires of the Amendment Acts has been decided against the writ petitioners by the Division Bench of this Court by its order dated 21.9.2016, against which, as stated herein above, appeal is pending in the Supreme Court, as also the issue of delimitation. Since the issue of delimitation as also the vires of the Amendment Acts is pending adjudication before the Supreme Court, it is not for this Bench to consider the validity of the same. The question before us is, whether appropriate directions should be issued by this Court with regard to the conducting of local body elections in view of the issues raised by the learned Advocate General.
44. The question that arises for our determination is whether Articles 243-E and 243-U of the Constitution, by which the duration of the Panchayats and Municipalities is fixed to a maximum period of five years, is mandatory in nature. The answer to the aforesaid question has to be in the affirmative.
45. The Constitution (Seventy-fourth) Amendment Act, 1992 introduced Part IX-A of the Constitution, including Article 243-U. Under Article 243-U, the duration of the municipality is fixed for a term of five years and it is stated that every municipality shall continue for a period of five years from the date appointed for its first meeting and no longer. Clause (3) of Article 243-U of the Constitution states that election to constitute a municipality shall be completed (i) before the expiry of its duration specified in clause (1); and (ii) before the expiration of a period of six months from the date of its dissolution.
46. Similarly, Article 243-E mandates that every Panchayat shall continue for five years from the date of its first meeting and no longer. Clause (3) of Article 243-E mandates that an election to constitute a Panchayat shall be completed before expiry of its duration.
47. The constitutional mandate is, thus, absolutely clear. A duration of a municipality cannot be continued beyond a period of five years, in view of Article 243-U of the Constitution.
48. Similarly, Article 243-E of the Constitution of India makes it absolutely clear that the duration of a panchayat cannot continue beyond five years from the date appointed for its first meeting. The expression and no longer both in Articles 243-E and 243-U of the Constitution of India makes this obvious.
49. In Kishansing Tomar v. Municipal Corporation of the City of Ahmedabad and others, reported in (2006) 8 SCC 352, the question which arose for consideration of the Supreme Court was, whether Article 243-U of the Constitution, by which the duration of the municipality was fixed, was mandatory in nature and any violation could be justified in the circumstances stated by the respondents. The question was answered in the negative.
50. In Kishansing Tomar v. Municipal Corporation of the City of Ahmedabad and others (supra), Supreme Court held as under:
12. It may be noted that Part IX-A was inserted in the Constitution by virtue of the Constitution (Seventy-fourth) Amendment Act, 1992. The object of introducing these provisions was that in many States the local bodies were not working properly and the timely elections were not being held and the nominated bodies were continuing for long periods. Elections had been irregular and many times unnecessarily delayed or postponed and the elected bodies had been superseded or suspended without adequate justification at the whims and fancies of the State authorities.
...
13. The effect of Article 243-U of the Constitution is to be appreciated in the above background. Under this article, the duration of the municipality is fixed for a term of five years and it is stated that every municipality shall continue for five years from the date appointed for its first meeting and no longer. Clause (3) of Article 243-U states that election to constitute a municipality shall be completed(a) before the expiry of its duration specified in clause (1), or (b) before the expiration of a period of six months from the date of its dissolution. Therefore, the constitutional mandate is that election to a municipality shall be completed before the expiry of the five years' period stipulated in clause (1) of Article 243-U and in case of dissolution, the new body shall be constituted before the expiration of a period of six months and elections have to be conducted in such a manner. A proviso is added to sub-clause (3) of Article 243-U that in case of dissolution, the remainder of the period for which the dissolved municipality would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the municipality for such period. It is also specified in clause (4) of Article 243-U that a municipality constituted upon the dissolution of a municipality before the expiration of its duration shall continue only for the remainder of the period for which the dissolved municipality would have continued under clause (1) had it not been so dissolved.
14. So, in any case, the duration of the municipality is fixed as five years from the date of its first meeting and no longer. It is incumbent upon the Election Commission and other authorities to carry out the mandate of the Constitution and to see that a new municipality is constituted in time and elections to the municipality are conducted before the expiry of its duration of five years as specified in clause (1) of Article 243-U. ....
19. From the opinion thus expressed by this Court, it is clear that the State Election Commission shall not put forward any excuse based on unreasonable grounds that the election could not be completed in time. The Election Commission shall try to complete the election before the expiration of the duration of five years' period as stipulated in clause (5). Any revision of electoral rolls shall be carried out in time and if it cannot be carried out within a reasonable time, the election has to be conducted on the basis of the then existing electoral rolls. In other words, the Election Commission shall complete the election before the expiration of the duration of five years' period as stipulated in clause (5) and not yield to situations that may be created by vested interests to postpone elections from being held within the stipulated time.
20. The majority opinion in Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman [(1985) 4 SCC 689] held that the fact that certain claims and objections are not finally disposed of while preparing the electoral rolls or even assuming that they are not filed in accordance with law cannot arrest the process of election to the legislature. The election has to be held on the basis of the electoral rolls which are in force on the last date for making nomination. It is true that the Election Commission shall take steps to prepare the electoral rolls by following due process of law, but that too, should be done timely and in no circumstances, it shall be delayed so as to cause gross violation of the mandatory provisions contained in Article 243-U of the Constitution.
21. It is true that there may be certain man-made calamities, such as rioting or breakdown of law and order, or natural calamities which could distract the authorities from holding elections to the municipality, but they are exceptional circumstances and under no (sic other) circumstance would the Election Commission be justified in delaying the process of election after consulting the State Government and other authorities. But that should be an exceptional circumstance and shall not be a regular feature to extend the duration of the municipality. Going by the provisions contained in Article 243-U, it is clear that the period of five years fixed thereunder to constitute the municipality is mandatory in nature and has to be followed in all respects. It is only when the municipality is dissolved for any other reason and the remainder of the period for which the dissolved municipality would have continued is less than six months, it shall not be necessary to hold any elections for constituting the municipality for such period.
22. In our opinion, the entire provision in the Constitution was inserted to see that there should not be any delay in the constitution of the new municipality every five years and in order to avoid the mischief of delaying the process of election and allowing the nominated bodies to continue, the provisions have been suitably added to the Constitution. In this direction, it is necessary for all the State Governments to recognise the significance of the State Election Commission, which is a constitutional body and it shall abide by the directions of the Commission in the same manner in which it follows the directions of the Election Commission of India during the elections for Parliament and the State Legislatures. In fact, in the domain of elections to the panchayats and the municipal bodies under Part IX and Part IX-A for the conduct of the elections to these bodies they enjoy the same status as the Election Commission of India.
23. In terms of Article 243-K and Article 243-ZA(1) the same powers are vested in the State Election Commission as the Election Commission of India under Article 324. The words in the former provisions are in pari materia with the latter provision.
....
25. From a reading of the said provisions it is clear that the powers of the State Election Commission in respect of conduct of elections is no less than that of the Election Commission of India in their respective domains. These powers are, of course, subject to the law made by Parliament or by the State Legislatures, provided the same do not encroach upon the plenary powers of the said Election Commissions.
26. The State Election Commissions are to function independent of the State Governments concerned in the matter of their powers of superintendence, direction and control of all elections and preparation of electoral rolls for, and the conduct of, all elections to the panchayats and municipalities. (emphasis supplied)
51. The proposition which emerges from the judgment of the Supreme Court in Kishansing Tomar v. Municipal Corporation of the City of Ahmedabad and others (supra), is that the Election Commission is to complete election to municipal bodies before the expiration of five years. It is not to put forward any excuse on unreasonable grounds to postpone elections. Any revision of electoral rolls are to be carried out in time and if it cannot be carried out within a reasonable time, the election has to be conducted on the basis of the then existing rolls.
52. Section 243-U of the Constitution is in pari materia with Section 243-E of the Constitution. The words are identical. The proposition of law enunciated by the Supreme Court upon interpretation of Article 243-U and Articles 243-K and 243-ZA(1) of the Constitution apply to election to panchayat bodies to which Article 243-E of the Constitution applies.
53. In Lakshmi Charan Sen v. A.K.M.Hassan Uzzaman, reported in (1985) 4 SCC 689, the Supreme Court held that the fact that certain claims and objections had not finally been disposed of while preparing the electoral rolls or even assuming that they were not filed in accordance with law could not arrest the process of election to the legislature. The election had to be held on the basis of the electoral rolls which were in force on the last date for making nomination.
54. In Special Reference No.1 of 2002, In re (Gujarat Assembly Election matter), reported in (2002) 8 SCC 237, the Supreme Court opined that the election to the Legislative Assembly of Gujarat, which had been dissolved before the expiration of its normal duration, would have to be convened within six months from the date of its last meeting. Concurring with the opinion of Khare,J., Arijit Pasayat,J. observed, the impossibility of holding the election is not a factor against the Election Commission. The maxim of law impotentia excusat legem is intimately connected with another maxim of law lex non cogit ad impossibilia. Impotentia excusat legem is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. 'Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over it, there the law will in general excuse him.' Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like an act of God, the circumstances will be taken as a valid excuse. Where the act of God prevents the compliance with the words of a statute, the statutory provision is not denuded of its mandatory character because of supervening impossibility caused by the act of God.
55. The maxim of law Impotentia excusat legem is connected with the maxim lex non cogit ad impossibilia. Impotentia excusat legem is that when there is a necessary or invincible disability to perform the mandatory part of the law, that disability might excuse performance. The law does not compel one to do that which is impossible. The disability to perform the mandatory duty should be without default. The performance has to be an impossibility beyond the control of the person required to perform the duty, a circumstance over which the person required to perform the duty has no control at all.
56. It may be true that there has been deficit rainfall this year and there has been shortage of water and in particular drinking water in many areas. However, the situation, in our view, was not such as to render the holding of elections absolutely impossible. Be it noted that all governmental activities, including celebrations, observance of significant days, etc., have been continuing without hindrance. If personnel are deployed to deal with the drought, others would have to be brought in for deployment in connection with the elections.
57. In Kishansing Tomar v. Municipal Corporation of the City of Ahmedabad and others, (supra), the Supreme Court referred to the aforesaid opinion of Pasayat,J. and held that from the opinion thus expressed, it is clear that the State Election Commission was not to put forward any excuse based on unreasonable grounds that the election could not be completed in time. The Election Commission would have to try to complete the election before the expiration of the duration of five years period as stipulated. Any revision of electoral rolls is to be carried out in time and if it cannot be carried out within a reasonable time, the election has to be conducted on the basis of the then existing rolls. In other words, the Election Commission would have to complete the election before the expiration of the duration of five years period as stipulated in Clause (5) and not yield to situations that may be created by vested interests to postpone elections from being held within the stipulated time.
58. On behalf of the Tamil Nadu State Election Commission, it was submitted that some of the directions in the judgment and order dated 4.10.2016 under appeal were incapable of compliance, particularly the direction on the State Election Commission to consolidate, record and data base the details provided by the candidates in the form of affidavits and upload them in their website.
59. In the writ appeal, it is contended, and in our view rightly, that the Single Bench has erred in its interpretation of Rule 24 of the Tamil Nadu Panchayats (Elections) Rules, 1995, which does not contemplate two separate notifications. Rather the language of Rule 24 permits announcement of the election schedule by a single notification.
60. It has been strenuously contended before us that elections to Panchayats and Municipalities had been held in 2006 and 2011, pursuant to notifications similar to the one under challenge in the writ petition, but the challenge to the notifications had failed and the notifications had been upheld.
61. The learned Senior Counsel for the State Election Commission, Mr.B.Kumar, submitted that there was no requirement for any time gap between the announcement of the schedule of election and actual commencement of election. It was argued that such theory has no legislative sanction. It has also been argued that the learned Single Bench failed to appreciate the mandate to conduct the election within a period of five years. The learned Single Bench had also failed to appreciate that prolongation of the process of election meant inconvenience by reason of engagement of practically the entire State machinery with election process.
62. In writ petition being W.P.No.14381 of 2017, CHANGEindia, represented by its Director, A.Narayanan, has challenged the constitutional vires of the Tamil Nadu Municipal Laws (Third Amendment) Ordinance, 2016 and the Tamil Nadu Panchayats (Third Amendment) Ordinance, 2016 and also notifications of G.O.Nos.145, 146, 147 as well as G.O.Nos.124, 125 and 126 appointing Special Officers for the urban and rural local bodies respectively till 31.12.2016 and further extending their tenure till 30.6.2017.
63. In the writ petition, it is contended that even though this Court directed the State Election Commission to conduct elections before 31.12.2016, the State Government promulgated the Tamil Nadu Municipal Laws (Third Amendment) Ordinance, 2016, whereby Section 375-B was inserted in the Tamil Nadu District Municipalities Act, 1920 enabling the State Government to appoint Special Officers to the Town Panchayats. Similarly, the Tamil Nadu Panchayats (Third Amendment) Ordinance, 2016 was promulgated, whereby Section 261-A was inserted in the Tamil Nadu Panchayats Act, 1994, enabling the Government to appoint Special Officers to the Village Panchayats.
64. The issues raised in the writ petition filed by CHANGEindia have effectively been decided by a Division Bench of this Court by its order dated 21.9.2016 disposing of seven writ petitions, as stated above. In view of the aforesaid judgment and order of the Division Bench of co-ordinate strength, against which an appeal is pending in the Supreme Court and is to be heard shortly, we need not embark upon adjudication of the constitutional validity of the amendment ordinances and the notifications impugned.
65. Mr.N.L.Rajah, learned Senior Counsel appearing on behalf of CHANGEindia argued that the Tamil Nadu State Election Commission had failed to speed up the process of clearing the road blocks, if any, in compliance of directions of the learned Single Bench in the judgment and order under appeal.
66. Mr.N.L.Rajah submitted that it is erroneous to proceed on the basis that since the Supreme Court is in seizin of the question of delimitation, this Court should not decide the question of whether elections should be held, before the issue of delimitation is finally decided by the Supreme Court.
67. Mr.N.L.Rajah, learned Senior Counsel argued that on 30.9.2016, the Supreme Court refused to postpone the local body elections in Tamil Nadu. Possibly the attention of the Single Bench as also the Division Bench which heard the writ appeals subsequently had not been drawn to the observations of the Supreme Court.
68. Mr.N.L.Rajah submitted that even though the Supreme Court is dealing with the issue of delimitation, there is no bar to giving any positive direction for conduct of local body elections and in view of the judgment of the Supreme Court in Kishansing Tomar case (supra), election to local bodies cannot be kept in abeyance pending settlement of the issue of delimitation.
69. Our attention has been drawn to two orders of the Supreme Court: (i) order dated 20.3.2017 in Special Leave to Appeal (C) .. CC No(s).4878/2017 (P.K.Ganesan v. T.N.State Election Commission and others) arising out of the final judgment and order dated 21.2.2017 in W.A.No.1268 of 2016 passed by the High Court; and (ii) order dated 20.4.2017 in Special Leave to Appeal (C) No(s).28881-28883 of 2016 (D.M.K. v. Secretary, Governor's Secretariat and others) arising out of the final judgment and order dated 21.9.2016 in W.P.No.23411, 23417 and 23418 of 2016.
70. By the order dated 20.3.2017, the Supreme Court requested this Court to hear and decide the appeal as expeditiously as possible and in the event any further order with regard to the date of completion of election process fixed on 14.5.2017 was required, it was stated that the High Court may be approached for modification/extension of the date.
71. By the order dated 20.4.2017, the Supreme Court recorded the statement that the High Court had ordered holding of election on 14.5.2017, but Election Commission had expressed its inability to hold elections on 14.5.2017 and submitted that it could more conveniently be held in the month of July, 2017. On the basis of this statement, the Supreme Court fixed the case on 12.7.2017 as the first item on board, but did not stay the election.
72. In S.L.P.Nos.28881 to 28883 of 2016, in the appeal of the Dravida Munnetra Kazhagam (DMK) against the judgment and order of a Division Bench of this Court dated 21.9.2016 in W.P.No.23411, etc. batch, upholding the validity of the impugned amendments, the Supreme Court passed an order dated 6.10.2016, the relevant part of which is set out herein below:
Holding of election will be subject to such order that the High Court may pass in the L.P.A., which is stated to be listed before the High Court today at 2.00 p.m. We make it clear that we have expressed no opinion on the merits of the rival contentions at this stage and it is open for the High Court to pass such orders on the issue with regard to notification publishing Election Schedule, pending before it, as it may consider it fit and appropriate.
73. In this appeal, a Division Bench of this Court directed as under:
3. Conducting of elections to the Local Bodies is not merely a statutory obligation thrust upon the State Election Commission, but, it is one of the vital and important functions which will have a great impact on the democratic governance of the Society. The democratic governance right from the gross root level reflects the 'will of the people' and the manner in which the affairs of the people should be carried on in public life, by those who are sought to be elected to govern. Keeping in mind the importance of this view and also keeping in view the onerous task involved in the matter of conducting elections and also particularly keeping in view the fact that Schools/Colleges and other Educational Institutions would not become available till the end of March, 2017 or till 15th April, 2017 for conducting elections smoothly and in view of the fact that immediately after the public examinations are conducted, some of the Teachers would be drafted for the equally important evaluation work and consequently, some of the Teachers would get pre-occupied with such an important work till the end of April, 2017, and thus become unavailable for Election related work, we consider it appropriate to direct the State Election Commission to complete the entire election process to all the Local Bodies in the State, latest by Sunday, 14 th May, 2017. The Election Commission shall accordingly publish the appropriate Notifications in the State Gazette under the Rules concerned, and then follow it by the Notifications in the respective District Gazettes, the next day. Though, we have a serious reservation to concede, as at present advised to the proposition that under the Rules, two separate notifications have to be published.
74. The aforesaid order of the Division Bench passed on 21.2.2017 has not been interfered with by the Hon'ble Supreme Court. The authorities were bound and obliged to conduct the elections within the time stipulated in the said order of the Division Bench.
75. In the order of the learned Single Judge dated 4.10.2016, which has been called in question before us in the writ appeal being W.A.No.1268 of 2017, the learned Single Judge has given nine directions which have been extracted herein before.
76. Mr.B.Kumar, learned Senior Counsel for the State Election Commission submits there is absolutely no difficulty in complying with four out of the nine directions, being direction Nos.(ii), (iii), (iv) and (v). We record the same. However, the directions with regard to the dates having become infructuous, fresh directions have to be issued regarding the dates.
77. With regard to the direction No.(i), wherein and whereby the learned Single Judge has held that Rule 24 of the Tamil Nadu Panchayats (Elections) Rules, 1995 has been violated, it is submitted by the learned Senior Counsel for the State Election Commission that a clarification is required from this Court with regard to the elections which are to be notified.
78. As Rules 24 and 25 of the Tamil Nadu Panchayats (Elections) Rules, 1995 are very clear, suffice it to say that the same shall be strictly adhered to in letter and spirit. In our view, Rule 24 contemplates one or more notifications. There is no bar to announcement of the election and announcement of the election schedule by the same notification. Be it noted that Rule 24 of the Tamil Nadu Panchayats (Elections) Rules, 1995 deals with notification/s by the State Election Commission and Rule 25 of the Tamil Nadu Panchayats (Elections) Rules, 1995 deals with a notification by the Returning Officer.
79. Broadly speaking, Rule 24 of the Tamil Nadu Panchayats (Elections) Rules, 1995 deals with notification/s by the State Election Commission calling upon the electors to elect their representatives and, inter alia, give the schedule for the elections which has been adumbrated in sub-rule (2) of Rule 24 of the Tamil Nadu Panchayats (Elections) Rules, 1995 in a sequence. Rule 25 of the Tamil Nadu Panchayats (Elections) Rules, 1995 is post notification under Rule 24(1) of the Tamil Nadu Panchayats (Elections) Rules, 1995. Rule 25 of the Tamil Nadu Panchayats (Elections) Rules, 1995, as stated above, deals with notification which is to be made by the respective Returning Officers and what Rule 25 notification should contain is very clearly set out in the Rule and more importantly, it is in a prescribed form.
80. With regard to direction Nos.(vii), (viii) and (ix), the learned Senior Counsel appearing for the State Election Commission submitted that the same are technically unworkable, as, according to him, there would be over 4 lakh candidates. This is evident from the fact that pursuant to the notification dated 25.9.2016, over 4 lakh nominations had been filed. It was also submitted that the affidavits and details of candidates might run to pages and uploading of such huge and voluminous data might cause crashing of the site.
81. This is disputed by Mr.P.Wilson and Mr.N.L.Rajah, learned Senior Counsel appearing forDravida Munnetra Kazhagam and CHANGEindia respectively.
82. The capacity of the website to store information and the volume of the information which can be uploaded and stored in the website being purely technical matters, we refrain from expressing any opinion with regard thereto. However, it is doubtful whether detailed information with regard to candidates can be withheld. If need be, the capacity might have to be increased. In Krishnamoorthy v. Sivakumar and others, reported in (2015) 3 SCC 467, the Supreme Court held as under:
86. From the aforesaid, it is luculent that free exercise of any electoral right is paramount. If there is any direct or indirect interference or attempt to interfere on the part of the candidate, it amounts to undue influence. Free exercise of the electoral right after the recent pronouncements of this Court and the amendment of the provisions are to be perceived regard being had to the purity of election and probity in public life which have their hallowedness. A voter is entitled to have an informed choice. A voter who is not satisfied with any of the candidates, as has been held in People's Union for Civil Liberties v. Union of India, (2013) 10 SCC 1, can opt not to vote for any candidate. The requirement of a disclosure, especially the criminal antecedents, enables a voter to have an informed and instructed choice. If a voter is denied of the acquaintance to the information and deprived of the condition to be apprised of the entire gamut of criminal antecedents relating to heinous or serious offences or offence of corruption or moral turpitude, the exercise of electoral right would not be an advised one. He will be exercising his franchisee with the misinformed mind. That apart, his fundamental right to know also gets nullified. The attempt has to be perceived as creating an impediment in the mind of a voter, who is expected to vote to make a free, informed and advised choice. The same is sought to be scuttled at the very commencement. It is well settled in law that election covers the entire process from the issuance of the notification till the declaration of the result. This position has been clearly settled in Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233, Election Commission of India v. Shivaji, (1988) 1 SCC 277 and V.S. Achuthanandan v. P.J. Francis, (1999) 3 SCC 737. We have also culled out the principle that corrupt practice can take place prior to voting. The factum of non-disclosure of the requisite information as regards the criminal antecedents, as has been stated hereinabove is a stage prior to voting.
....
91. The purpose of referring to the instructions of the Election Commission is that the affidavit sworn by the candidate has to be put in public domain so that the electorate can know. .......... When something within special knowledge is not disclosed, it tantamounts to fraud, as has been held in S.P. Chengalvaraya Naidu v. Jagannath, (1994) 1 SCC 1. While filing the nomination form, if the requisite information, as has been highlighted by us, relating to criminal antecedents, is not given, indubitably, there is an attempt to suppress, effort to misguide and keep the people in dark. This attempt undeniably and undisputedly is undue influence and, therefore, amounts to corrupt practice. It is necessary to clarify here that if a candidate gives all the particulars and despite that he secures the votes that will be an informed, advised and free exercise of right by the electorate. That is why there is a distinction between a disqualification and the corrupt practice. In an election petition, the election petitioner is required to assert about the cases in which the successful candidate is involved as per the rules and how there has been non-disclosure in the affidavit. Once that is established, it would amount to corrupt practice. We repeat at the cost of repetition, it has to be determined in an election petition by the Election Tribunal.
83. The candidates are, as per the existing rules, bound to file affidavits. Unless the affidavits so sworn are put in the public domain, electors would not know what has been stated and what has been suppressed. Whether there has been any suppression, whether a candidate has taken recourse to any unfair or corrupt practice, are matters which are to be decided by way of an election petition once elections are announced and/or are held. However, the Court in exercise of its power of judicial review under Article 226 of the Constitution of India is not precluded from giving directions with regard to putting up the affidavits in the public domain. Posting of affidavits on the website is the best form of disclosure, as all electors can conveniently access the website. The vague assertion of the possibility of the website crashing is, in our view, no ground to withhold relevant information from candidates.
84. As observed above, elections to local bodies were to be held within five years from the date of the first meeting. This has not been done. Elections are long overdue. A period of almost one year has elapsed from the date of expiration of the tenure of the local bodies. In the circumstances, it is imperative that elections be held immediately.
85. We do not find that it was the intention of the Single Bench that the entire affidavit should be uploaded. What was directed was that the details provided by the candidates in the form of affidavits and/or in other words, in their affidavits should be accurately uploaded in the website. There is no direction to upload the entire affidavit as understood by the concerned respondents.
86. However, for convenience, we clarify that the State Election Commission shall consolidate, record and data base the details provided in the affidavits affirmed by the candidates accurately and upload them in its website. We agree that electors are entitled to know the credentials and antecedents of all candidates who contest the elections. The data base of the information provided by the candidates has to be uploaded in the website of the Election Commission and that is what the Single Bench has directed. We direct that the affidavits should, if required, be made available for inspection in the local taluk offices and furnished subject to payment of requisite charges.
87. The notification announcing elections to local bodies in Tamil Nadu shall definitely be published within 18th September, 2017 and elections to local bodies shall be completed by 17th November, 2017. We are informed that the appeal is listed for hearing before the Supreme Court on 6.9.2017. Needless to mention that these directions will be subject to any orders that might be passed by the Supreme Court on 6.9.2017.
88. The appeal and the writ petitions are disposed of. No costs. Consequently, C.M.P.Nos.16429 and 19493 of 2016, and 6269, 6656, 708, 3031, 12179 of 2017 and W.M.P.No.15594 of 2017 are closed.
(I.B., CJ.) (M.S., J.)
04.09.2017
Index : Yes/No
Internet : Yes
sasi
To:
1 The Chief Secretary
Government of Tamil Nadu
Secretariat, Fort St. George
Chennai 600 009.
2 The Principal Secretary to Government
Rural Development and Panchayat Raj Department
Government of Tamil Nadu
Secretariat, Fort St. George
Chennai 600 009.
3 The Principal Secretary to Government
Municipal Administration and Water Supply Department
Secretariat, Fort St. George
Chennai 600 009.
4 The Tamil Nadu State Election Commissioner
Tamil Nadu State Election Commission
No.208/2, Jawaharlal Nehru Road
Opp. to CMBT, Arumbakkam
Chennai.
5 The Secretary
Tamil Nadu State Election Commission
No.208/2, Jawaharlal Nehru Road
Opp. to CMBT, Arumbakkam
Chennai 600 106.
6 The Director of Town Panchayats
Kuralagam, Chennai 600 001.
7 The Commissioner
Corporation of Chennai
Rippon Building
Chennai 600 003.
THE HON'BLE CHIEF JUSTICE
AND
M.SUNDAR,J.
(sasi)
W.A.No.1268 of 2016 and
W.P.Nos.14381 and 18141 of 2017
04.09.2017