cites: 710706 doctypes: judgments

Kumari Shrilekha Vidyarthi Etc. Etc vs State Of U.P. And Ors on 20 September, 1990

No assistance can be derived from Srilekha Vidyarthi case. A Legislature does not act on extraneous consideration. Ordinance issued in 1990 was replaced by Act 19 of 1990. The Act came into force on 24th July 1990 but it was made retrospective with effect from 15th February 1990, the date when the ordinance was issued. But for lack of legislative competence or for being arbitrary a legislative action cannot be struck down on ground of mollified.

Supreme Court of India Cites 26 - Cited by 1487 - J S Verma - Full Document

Jyoti Basu & Others vs Debi Ghosal & Others on 26 February, 1982

Democracy is a concept, a political philosophy an ideal practised by many nations culturally advanced and politically mature by resorting to governance by representatives of the people elected directly or indirectly. But electing representatives to govern is neither a `fundamental right' nor a 'common law right' but a special right created by the statutes,* or a `political right' or privilege' and not a `natural', `absolute' or `vested right'.(American Jurisprudence 2nd Edn. Vol.63 p771) `concepts familiar to common law and equity must remain stranger to Election Law unless statutorily recognised'.(Jyoti Basu & Ors. v. Debi Ghosal & Ors, AIR 1982 SC 983; Arun Kumar Bose v. Mohd. Furkan Ansari & Ors., AIR 1983 SC 1311.) Right to remove an elected representative, too, must stem out of the statute as `in the absence of a constitutional restriction it is within the power of a legislature to enact a law for the recall of officers'. (American Jurisprudence Vol. 63 2nd Edn. p.238.) Its existence or validity can be decided on the provision of the Act and not, as a matter of policy. In the American Political Dictionary (Jack C Plano/Milton Greenberg) the right of recall is defined as, `a provision enabling voters to remove an elected official from office before his or her term expired'. American jurisprudence explains it thus, `Recall is a procedure by which an elected officer may be removed at any time during his term or after a specified time by vote of the people at an election called for such purpose by a specified number of citizens'. (American Jurisprudence Vol.63 2nd Edn. p.770.)

Supreme Court of India Cites 17 - Cited by 430 - O C Reddy - Full Document

Arun Kumar Bose vs Mohd. Furkan Ansari & Others on 28 September, 1983

Democracy is a concept, a political philosophy an ideal practised by many nations culturally advanced and politically mature by resorting to governance by representatives of the people elected directly or indirectly. But electing representatives to govern is neither a `fundamental right' nor a 'common law right' but a special right created by the statutes,* or a `political right' or privilege' and not a `natural', `absolute' or `vested right'.(American Jurisprudence 2nd Edn. Vol.63 p771) `concepts familiar to common law and equity must remain stranger to Election Law unless statutorily recognised'.(Jyoti Basu & Ors. v. Debi Ghosal & Ors, AIR 1982 SC 983; Arun Kumar Bose v. Mohd. Furkan Ansari & Ors., AIR 1983 SC 1311.) Right to remove an elected representative, too, must stem out of the statute as `in the absence of a constitutional restriction it is within the power of a legislature to enact a law for the recall of officers'. (American Jurisprudence Vol. 63 2nd Edn. p.238.) Its existence or validity can be decided on the provision of the Act and not, as a matter of policy. In the American Political Dictionary (Jack C Plano/Milton Greenberg) the right of recall is defined as, `a provision enabling voters to remove an elected official from office before his or her term expired'. American jurisprudence explains it thus, `Recall is a procedure by which an elected officer may be removed at any time during his term or after a specified time by vote of the people at an election called for such purpose by a specified number of citizens'. (American Jurisprudence Vol.63 2nd Edn. p.770.)

Supreme Court of India Cites 25 - Cited by 60 - M Rangnath - Full Document

N.P. Ponnuswami vs Returning Officer, ... on 21 January, 1952

It was urged that `recall gives dissatisfied electors the right to propose between elections that their representatives be removed and replaced by another more in _____________________________________________________________ Ponnuswami v. Returning Officer, Namakkal Constituency & others, [1952] SCR 218; Jagan Nath v. Jaswant Singh & Ors., [1964] SC 210 343 accordance with popular* will' therefore the appellant could have been recalled be the same body, namely, the people who elected him. Urged Shri Sunil Gupta, learned counsel, that since, `A referendum involves a decision by the electorate without the intermediary of representatives and, therefore, exhibits form of direct democracy'** the removal of the appellant by a vote of no-confidence by the Board which did not elect him was subversive of basic concept of democracy. Academically the submission appeared attractive but applied as a matter of law it appears to have little merit. None of the political theorists, on whom reliance was placed, have gone to suggest that an elected representative can be recalled, only, by the persons or body that elected him. Recall expresses the idea that a `public officer is indeed a "servant of the people" and can therefore be dismissed by them'.* * * In modern political set up direct popular check by recall of elected representative has been universally acknowledged in any civilised system. Efficacy of such a device can hardly admit of any doubt. But how it should be initiated, what should be the procedure, who should exercise it within ambit of constitutionally permissible limits falls in the domain of legislative power. `Under a constitutional provision authorizing municipalties of a certain population to frame a charter for their own government consistent with and subject to the Constitution and laws of the state, and a statutory provision that in certain municipalities the mayor and members of the municipal council shall be elected at the time, in the manner, and for the term prescribed in the charter, a municipal corporation has authority to enact a recall provision'. (American Jurisprudence 2nd Edn. Vol.63 p.771) Therefore, the validity or otherwise of a no- confidence motion for removal of a President, would have to be examined on applicability of statutory provision and not on political philosophy. The Municipality Act provides in detail the provisions for election of President, his qualification, resignation, removal etc. Constitutional validity of these provisions was not challenged, and rightly, as they do not militate, either, against the concept of democracy or the method of electing or removing the representatives. The recall of an elected representative therefore, so long it is in accordance with law cannot be assailed on abstract notions of democracy. _________________________________ * Modern Political Constitution, 8th Edn. by C.S.Strong. ** Dictionary of Political Thought by Roger Scrutton 1982 *** Dictionary of Political Science and Law by Rudolph Heimansor 344 Legality of the motion of no-confidence was attacked for absence of any specific provision applying Section 47-A and 87-A of the Act to President elected by the electorate, as also for being irrational if the provisions were held to apply by interpretation as it would result in substituting confidence of people with confidence of board which had no concern with expression of confidence in electing the President consequently it would be unreasonable and against public interest. Even the concept of democracy being basic feature of the Constitution was invoked to urge that provisions relating to elections should be construed so as to be inconsonance with it rather than violative of it. Legislative history of Section 43 dealing with election of President, Section 87-A providing for passing a vote of no- confidence against him, Section 47-A directing him to resign within three days form the date of communication of the result that no confidence motion had been passed and Section 48 empowering the Government to remove a President if he failed to resign were placed with dual purpose of demonstrating that these sections could not apply to a President elected by the electorate and to urge that even if they applied they were rendered arbitrary as no safeguard or protection has been provided to such President as existed prior to introduction of the proviso to Section 47-A. It was submitted that operation of the proviso to Section 47-A was confined to a President elected by the Board therefore the protection to a President against arbitrary action of the Board of passing a resolution against him could be available to such President only. And a President elected by the electorate despite recommending supersession of Board would be exposed to fresh election due to non-availability of the proviso therefore it was submitted that Section 47-A itself should be held to be inapplicable to a President elected by the electorate otherwise it would lead to illogicity and irrationality.

Supreme Court of India Cites 27 - Cited by 605 - S S Ali - Full Document

Jagan Nath vs Jaswant Singh And Others on 20 January, 1954

It was urged that `recall gives dissatisfied electors the right to propose between elections that their representatives be removed and replaced by another more in _____________________________________________________________ Ponnuswami v. Returning Officer, Namakkal Constituency & others, [1952] SCR 218; Jagan Nath v. Jaswant Singh & Ors., [1964] SC 210 343 accordance with popular* will' therefore the appellant could have been recalled be the same body, namely, the people who elected him. Urged Shri Sunil Gupta, learned counsel, that since, `A referendum involves a decision by the electorate without the intermediary of representatives and, therefore, exhibits form of direct democracy'** the removal of the appellant by a vote of no-confidence by the Board which did not elect him was subversive of basic concept of democracy. Academically the submission appeared attractive but applied as a matter of law it appears to have little merit. None of the political theorists, on whom reliance was placed, have gone to suggest that an elected representative can be recalled, only, by the persons or body that elected him. Recall expresses the idea that a `public officer is indeed a "servant of the people" and can therefore be dismissed by them'.* * * In modern political set up direct popular check by recall of elected representative has been universally acknowledged in any civilised system. Efficacy of such a device can hardly admit of any doubt. But how it should be initiated, what should be the procedure, who should exercise it within ambit of constitutionally permissible limits falls in the domain of legislative power. `Under a constitutional provision authorizing municipalties of a certain population to frame a charter for their own government consistent with and subject to the Constitution and laws of the state, and a statutory provision that in certain municipalities the mayor and members of the municipal council shall be elected at the time, in the manner, and for the term prescribed in the charter, a municipal corporation has authority to enact a recall provision'. (American Jurisprudence 2nd Edn. Vol.63 p.771) Therefore, the validity or otherwise of a no- confidence motion for removal of a President, would have to be examined on applicability of statutory provision and not on political philosophy. The Municipality Act provides in detail the provisions for election of President, his qualification, resignation, removal etc. Constitutional validity of these provisions was not challenged, and rightly, as they do not militate, either, against the concept of democracy or the method of electing or removing the representatives. The recall of an elected representative therefore, so long it is in accordance with law cannot be assailed on abstract notions of democracy. _________________________________ * Modern Political Constitution, 8th Edn. by C.S.Strong. ** Dictionary of Political Thought by Roger Scrutton 1982 *** Dictionary of Political Science and Law by Rudolph Heimansor 344 Legality of the motion of no-confidence was attacked for absence of any specific provision applying Section 47-A and 87-A of the Act to President elected by the electorate, as also for being irrational if the provisions were held to apply by interpretation as it would result in substituting confidence of people with confidence of board which had no concern with expression of confidence in electing the President consequently it would be unreasonable and against public interest. Even the concept of democracy being basic feature of the Constitution was invoked to urge that provisions relating to elections should be construed so as to be inconsonance with it rather than violative of it. Legislative history of Section 43 dealing with election of President, Section 87-A providing for passing a vote of no- confidence against him, Section 47-A directing him to resign within three days form the date of communication of the result that no confidence motion had been passed and Section 48 empowering the Government to remove a President if he failed to resign were placed with dual purpose of demonstrating that these sections could not apply to a President elected by the electorate and to urge that even if they applied they were rendered arbitrary as no safeguard or protection has been provided to such President as existed prior to introduction of the proviso to Section 47-A. It was submitted that operation of the proviso to Section 47-A was confined to a President elected by the Board therefore the protection to a President against arbitrary action of the Board of passing a resolution against him could be available to such President only. And a President elected by the electorate despite recommending supersession of Board would be exposed to fresh election due to non-availability of the proviso therefore it was submitted that Section 47-A itself should be held to be inapplicable to a President elected by the electorate otherwise it would lead to illogicity and irrationality.

Supreme Court of India Cites 23 - Cited by 203 - M C Mahajan - Full Document

R.S. Nayak vs A.R. Antulay & Anr on 17 April, 1986

When Act 2 of 1916 was enacted it provided for election of Chairman of the Board by a special resolution passed by the members under Section 43(1) of the Act. Sub-section (2) provided for ex-officio nomination by the Government of the Chairman in some municipality. Section 48 empowered the Government to remove a Chairman after hearing and giving reasons. It did not contain any ____________________________________________________________ * R.S. Nayak v. A.R. Antulay, [1984] 2 SCC 183 ** Reserve Bank of India v. Peerless Gen. Finance & Investment Co. Ltd., [1987] 1 SCC 424 (450) *** Tumahole Bereng & Ors. v. The King., AIR 1949 PC 172 (176) **** Tumahole Bereng & Ors. v. The King., AIR 1949 PC 172 (176) 349 provision for removal of a chairman by a vote of no- confidence. Ten years later Act 2 of 1926 brought about a very significant change in the Act by introducing Section 47A and conferring power of removal of Chairman, other than the ex-officio, by the members of the Board by expressing a vote of no-confidence against him. Section 48, too, was amended and a Chairman who failed to resign after a vote of no-Confidence was liable to be removed, by the State Government. Thus it was as far back as 1926 that removal of the Chairman by elected representative found its way in the Act. In 1933 by Act No.9 another important section 87A was added providing for tabling of no-confidence motion against the Chairman. In 1942 Section 47-A was omitted as the provision for resigning by the Chairman was provided for in Section 87-A itself. And hearing of the Chairman by State Government under Section 48 before removal in consequence of vote of no-confidence was deleted. Act 7 of 1949 introduced major changes in Section 43 and 47A, of the Act. Section 43 was substituted altogether and, it for the first time, provided for election of the Chairman simultaneously with members of the board by the electorate directly. Section 47-A which had been omitted by Act 13 of 1942 was reintroduced and a Chairman against whom a vote of no- confidence was passed was required to resign. In the alternative he was permitted to recommend to State Government that the Board itself may be dissolved. And if the State Government agreed with the President then it was the Board which was to go. The intention apparently was to keep a check on the power of Board, too, while taking action against the Chairman as if it was found that exercise of power by the Board was arbitrary and President was being removed for extraneous reasons then the Government could interfere and direct dissolution of the Board itself. Both the sections were amended once again in 1955 and by Act 1 the election of Chairman, known now as President, by the members of the Board was reintroduced, as, 'The experience of the working of the Boards since their constitution at the last general election has generally been one of continuing conflict between Presidents elected by the popular vote on the one hand and the members on the other. This has greatly prejudiced the normal working of the Boards.' (Objects & Reasons of U.P. Act 1 of 1955) Section 47-A of the Act was substituted completely and it is in this shape that the section stands today. Section 43(1) was amended, once again, by Act 47 of 1976 and election of President by electorate was revived. In 1982 another change was made in this Section by Act 17 and 350 election of President by the members of Board was confined to Municipalities other than a city declared as such under Section 3 having a population of less than one lakh inhabitants. Sub-section (2) provided for election of President of Board of such a city Municipality by the electorate directly. From 1982 onwards, therefore, the direct election of President by the electorate is confined to smaller municipalities.

Supreme Court of India Cites 45 - Cited by 548 - P N Bhagwati - Full Document

Reserve Bank Of India vs Peerless General Finance & Investment ... on 22 January, 1987

When Act 2 of 1916 was enacted it provided for election of Chairman of the Board by a special resolution passed by the members under Section 43(1) of the Act. Sub-section (2) provided for ex-officio nomination by the Government of the Chairman in some municipality. Section 48 empowered the Government to remove a Chairman after hearing and giving reasons. It did not contain any ____________________________________________________________ * R.S. Nayak v. A.R. Antulay, [1984] 2 SCC 183 ** Reserve Bank of India v. Peerless Gen. Finance & Investment Co. Ltd., [1987] 1 SCC 424 (450) *** Tumahole Bereng & Ors. v. The King., AIR 1949 PC 172 (176) **** Tumahole Bereng & Ors. v. The King., AIR 1949 PC 172 (176) 349 provision for removal of a chairman by a vote of no- confidence. Ten years later Act 2 of 1926 brought about a very significant change in the Act by introducing Section 47A and conferring power of removal of Chairman, other than the ex-officio, by the members of the Board by expressing a vote of no-confidence against him. Section 48, too, was amended and a Chairman who failed to resign after a vote of no-Confidence was liable to be removed, by the State Government. Thus it was as far back as 1926 that removal of the Chairman by elected representative found its way in the Act. In 1933 by Act No.9 another important section 87A was added providing for tabling of no-confidence motion against the Chairman. In 1942 Section 47-A was omitted as the provision for resigning by the Chairman was provided for in Section 87-A itself. And hearing of the Chairman by State Government under Section 48 before removal in consequence of vote of no-confidence was deleted. Act 7 of 1949 introduced major changes in Section 43 and 47A, of the Act. Section 43 was substituted altogether and, it for the first time, provided for election of the Chairman simultaneously with members of the board by the electorate directly. Section 47-A which had been omitted by Act 13 of 1942 was reintroduced and a Chairman against whom a vote of no- confidence was passed was required to resign. In the alternative he was permitted to recommend to State Government that the Board itself may be dissolved. And if the State Government agreed with the President then it was the Board which was to go. The intention apparently was to keep a check on the power of Board, too, while taking action against the Chairman as if it was found that exercise of power by the Board was arbitrary and President was being removed for extraneous reasons then the Government could interfere and direct dissolution of the Board itself. Both the sections were amended once again in 1955 and by Act 1 the election of Chairman, known now as President, by the members of the Board was reintroduced, as, 'The experience of the working of the Boards since their constitution at the last general election has generally been one of continuing conflict between Presidents elected by the popular vote on the one hand and the members on the other. This has greatly prejudiced the normal working of the Boards.' (Objects & Reasons of U.P. Act 1 of 1955) Section 47-A of the Act was substituted completely and it is in this shape that the section stands today. Section 43(1) was amended, once again, by Act 47 of 1976 and election of President by electorate was revived. In 1982 another change was made in this Section by Act 17 and 350 election of President by the members of Board was confined to Municipalities other than a city declared as such under Section 3 having a population of less than one lakh inhabitants. Sub-section (2) provided for election of President of Board of such a city Municipality by the electorate directly. From 1982 onwards, therefore, the direct election of President by the electorate is confined to smaller municipalities.

Supreme Court of India Cites 31 - Cited by 517 - O C Reddy - Full Document

State Of Himachal Pradesh And Anr vs Kailash Chand Mahajan And Ors on 20 February, 1992

(State of Himachal Pradesh v. Kailash Chand Mahajan, [1992] (2) 5 p.165.) Further it may be noticed that this amendment was not introduced for the first time. Period of moving a motion within 12 months from the date of assumption of office was introduced in 1942. It was increased to two years by Act 41 of 1976. It was brought down to one year again by Act 19 of 1990. What was urged by learned counsel was that since no election had taken place of local bodies, from 1976 to 1988, the period of two years was never given a trial, therefore, there was no occasion for the legislature to have reduced this period. The argument does not appear to have been advanced before the High Court. Necessary averments were not made even in Special Leave Petition. There was thus no occasion for other side to explain. That its action in reducing the period did not suffer from any infirmity. It may be mentioned that elections in the Municipal Board both of members and Presidents were held in December 1988 whereas general elections of the State Assembly leading to change of political power were held in 1989. In absence of any factual foundation the argument appears to be devoid of any merit. Moreover what persuaded the legislature to reduce the period 356 is again a matter of legislative policy the wisdom of which cannot be scanned by this Court.

Supreme Court of India Cites 64 - Cited by 212 - S Mohan - Full Document

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