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Periodic, free and fair elections, a basic structure of the Constitution

by Rinku Khumukcham
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By : Aaron Keishing, Advocate, HC of Manipur
It would not be proper for the State Govt. to postpone the ADC election unless there are compelling and substantial reasons for postponement the election in question. There is no compulsion by administrative difficulties and thus the proviso to Section 13(1) cannot be invoked by the Administrator or State Government. The action and inaction of the State Government violate the mandatory provisions of Section 13(1) of the Act, 1971. As reflected in Mr. C.K.Rama Murthy vs State Election Commission (2002) 8 SCC 237, “a democratic form of Government would survive only if there are elected representatives to rule. Any decision to postpone elections on unreasonable grounds is anathema to a democratic form of Govt. and it is subject to judicial review on traditionally accepted grounds. It is the duty of the State Election Commission to see that election is done in a free and fair manner to keep democratic form of Government vibrant and active.”
The Hon’ble High Court may exercise its powers under Article 226 against the legislature when it exercises power not possessed by it under the Constitution or in contradiction of the mandatory provisions of the Constitution or mandatory provisions of the Manipur (Hill  Areas)  District  Councils Act, 1971. Accordingly, the High Court of Manipur was pleased to passed an interim order dated 17-12-2020 thereby the impugned order dated 30-11-2020 of supersession  issued by Addl. Chief Secretary (TA&Hills), Govt. of Manipur was suspended and set aside with sharp observations stating that “the State Govt. issued the impugned order in total disregard and disobedience of the Court’s order dated 27-11-2020.” It was observed that “once an order has been passed by the court, it will have to be honoured and complied with if no appeal is preferred against it.” And the term of ADCs were extended by the court till further orders, however, the State Government is reluctant to issue notification for elections and also the terms of ADCs were not extended which is highly irresponsible. It was observed in final order of the case that “the impugned order was issued superseding the District Councils which is contrary to the interim order dated 27.11.2020. The impugned order has violated the interim order, is bad in law and it being unsustainable, is liable to be quashed and set aside.” Further, the order dated 02-03-2021 in W.P.(C) Nos. 613, 645, and 647 of 2020 filed by Mr. Lunthang Haokip and Mr. Yaronso Ngalung, Chairman, Ukhrul ADC against the State respondents reads as under:
“The State Govt. and in particular, the Addl. Chief Secretary (TA&Hills), Govt. of Manipur shall write a letter to the Hill Areas Committee (HAC) within a week from receipt of the order dated 02-03-2021 seeking its opinion as to whether the term of the Councils shall be extended or not till the actual completion of the election, and the HAC shall furnish its opinion within a week from receipt of the letter. Thereafter, the State Govt. shall take a decision and issue an appropriate order immediately in terms thereof. Till such an order is issued, the interim order dated 27-11-2020 shall continue (i.e. the incumbent members of ADCs are still members). The State Election Commission is directed to announce the date on which the election shall be held within a week from the date of receipt of a copy of this order.”     
The State Govt. has to conduct election to ADCs by initiating steps at the earliest. The period of five years has to be reckoned from the  date  of  the  notification  of  his  election  or nomination or from the date on which the vacancy in which he is elected or nominated has occurred, whichever date is later as mandated under section 13(1) of the ADC Act, 1971. Keeping the ADCs in supersession mode which could have been avoided and that too without any stipulated time period is unconstitutional to the least. The last election to ADCs was held on 01.06.2015 and the term of the Councils was for a period of five years which came to an end in May 2020. However, the State Govt. did not issue notification to hold election till date.
The State Govt. would have to hold elections and discharge its constitutional obligations and as stipulated in section 13(1) of the Act. However, there have been no steps initiated in that direction, instead the State Govt. has put the ADCs in superssession mode since 30-11-2020 and there is an apprehension that it may keep for longer period. The term of the Councils  has expired and that the State Govt. is seen to have adopted dilatory tactics to postpone holding of election to ADCs. The State Govt. shall  issue notifications for elections at the earliest possible date as per the intention of the Act, failing which the primary spirit of the local bodies will be defeated and left redundant.  
It is pertinent to mention here the constitutional provisions regarding duration of Municipalities, etc. enshrined under Article 243U(3)(a) in the Constitution of India 1949 for better examination of constitutional intention in the matter, “(3) An election to Constitute a Municipality shall be complete:- (a) before the expiry of its duration specified in clause ( 1)”
The State Govt. and State Elecction Commission (SEC) have not been making sincere efforts to ensure holding election in time, hence efforts of the ADC members, intending candidates and tribal organisations in that direction have been went futile, as the State Government is reluctant to take any positive step in the matter. That the Commission is a constitutional authority under Article 243K of the Constitution and superintendence, direction and control of the preparation of the list of voters and conduct of elections to the ADCs is vested in the Commission. But unless the said exercise is carried out by the State Govt., the Commission would not be in a position either to declare or to conduct election to ADCs. Hence, the State Govt. shall take necessary steps to ensure that election is held in time which has already been in inordinately delayed stage.
Article 243K comes under Part IX of the Constitution and this Article is applicable to all the local self-governments.  That, as observed in M/S Gujarat Pradesh Panchayat Parishad & Ors. vs State Of Gujarat & Ors, Appeal (civil) Case No.  3340 of 2007 made on 30 July, 2007, Part IX of the Constitution read with the relevant provisions of the Act leaves no room for doubt that a State Legislature in the light of of the constitutional provisions in Part IX, cannot do away with this democratic bodies at the local level nor can their normal tenure be curtailed otherwise than in accordance with law nor can the State Govt. delay elections of this bodies.
The dilatory tactics of the State Govt. would destroy the constitutional set up in Part IX. It would also make 13(1) of the Manipur  (Hill  Areas)  District  Councils Act, 197 totally unworkable, otiose and redundant. The language used in Section 13(1) clearly stipulated that the term of office of ADC members is 5 years which is clear, unambiguous and unequivocal. The proviso to this section is purely for the administrative convenience and not for dilatory tactics. It is, therefore, the decision of the State Govt. shall be revoked at the earliest by upholding the validity of Section 13(1) and comply with the said section and to act in accordance with the constitutional intention in the matter. The relevant provisions shall be interpreted keeping in view the intention of the Legislature in respect of local governance and avoid the dilatory tactics which is unlawful or inconsistent with the provisions of the Constitution or of the Act.
Periodic, free and fair elections……    
As quoted in M/S Gujarat Pradesh Panchayat Parishad & Ors. vs State Of Gujarat & Ors, a question similar to one in hand of interpretation of provisions of the Constitution in Part IX-A concerning Municipalities came up for consideration before a Constitution Bench of Hon’ble Apex Court in Kishansing Tomar v. Municipal Corporation of the City of Ahmedabad and Ors., (2006) 8 SCC 352 : JT 2006 (9) SC 320. Examining the underlying object of inserting Part IX-A by the Constitution (Seventy-fourth) Amendment Act, 1992 and highlighting effective and meaningful role to be played by local bodies in political governance of the country, K.G. Balakrishnan, J. (as His Lordship then was) stated:
“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. These views were expressed by the then Minister of State for Urban Development while introducing the Constitution Amendment Bill before the Parliament and thus the new provisions were added in the Constitution with a view to restore the rightful place in political governance for local bodies. It was considered necessary to provide a Constitutional status to such bodies and to ensure regular and fair conduct of elections. In the statement of objects and reasons in the Constitution Amendment Bill relating to urban local bodies.”
Further the Apex Court observed that in many States, local bodies have become weak and ineffective on account of variety of reasons, including the failure to hold regular elections, prolonged supersessions and inadequate devolution of powers and functions. As a result, urban local bodies are not able to perform effectively as vibrant democratic units of self-Government. Having regard to these inadequacies, it is considered necessary that provisions relating to urban local bodies are incorporated in the Constitution, particularly for – (i) putting on a firmer footing the relationship between the State Govt. and the Urban Local Bodies with respect to: (a) the functions and taxation powers, and (b)  (i) arrangements for revenue sharing. (ii) ensuring regular conduct of elections. (iii) ensuring timely elections in the case of supersession; and (iv) providing adequate representation for the weaker sections like Scheduled Castes, Scheduled Tribes and women. Accordingly, it has been proposed to add a new Part relating to the Urban Local Bodies in the Constitution to provide for *** ***(f) fixed tenure of 5 years for the Municipality and re-election within a period of six months of its dissolution.
Under Section 13(1), the duration of the Councils is fixed for a term of five years and every Council shall continue for five years from the date notification for election or nomination under section 12. That election to constitute a Council shall be completed – (a) before the expiry of its duration specified in or before the expiration of a period of six months from the date of its dissolution. Therefore, the constitutional mandate is that election to a Council shall be completed before the expiry of the five years’ period and in case of dissolution and elections have to be conducted in such a manner.
The term of office of Councils has expired in May, 2020 and election has to be held. However, the State Government has taken a decision to keep the ADCs in supersession mode without any stiputlated time period which is arbitrary, bias, discriminatory and violate the provisions of Article 14 and 21 of the Constitution. An election to constitute a Council shall be completed before the expiration of its duration specified in clause (1) of Section 13 of the Act, 1971. There is a constitutional obligation and mandate to hold election before the term of the Council comes to an end and in our case, it is 01.06.2020.
No reason can be given by the State Government for escaping the mandate of the Constitution. The State Government in the matter has been slack in not taking steps but the State Government is stating difficulties in holding election in time, which cannot be the case having regard to the constitutional mandate. The State Government cannot use that proviso to Section 13(1) as a reason or excuse or ruse to postpone holding of election to the local body. Having regard to the dicta of the Hon’ble Supreme Court that there can be no excuse to postpone election, and the Commission being an independent constitutional body is under a duty to hold election in time. It is no doubt true that democracy is a part of the basic feature of the Indian Constitution and periodical, free and fair election is the substratum of democracy. But, there is no free and fair periodic election, it is a doomsday for democracy. This was emphasized in M.S. Gill v. Chief Election Commissioner, (1978) 1 SCC 405 thus:
“12. A free and fair election based on universal adult franchise is the basic, the regulatory procedures vis-à-vis the repositories of functions and the distribution of legislative, executive and judicative roles in the total scheme, directed towards the holding of free elections, are the specifics. The super authority is the Election Commission, the kingpin is the Returning Officer, the minions are the presiding officers in the polling stations and the electoral engineering is in conformity with the elaborate legislative provisions.”
So far as the framing of the schedule or calendar for election is concerned, according to the Hon’ble Supreme Court, the same is in the exclusive domain of the Election Commission, which is not subject to any law framed by Parliament. It has been observed that “Parliament is empowered to frame law as regards conduct of elections but conducting elections is the sole responsibility of the Election Commission. As a matter of law, the plenary powers of the Election Commission cannot be taken away by law framed by Parliament. If Parliament makes any such law, it would be repugnant to Article 324. Holding periodic, free and fair elections by the Election Commission are part of the basic structure.”
In the words of the Constitution Bench of the Supreme Court in T.N.Seshan v. Union of India (1995) 4 SCC 611: “Democracy being the basic feature of our constitutional set-up, there can be no two opinions that free and fair elections to our legislative bodies alone would guarantee the growth of a healthy democracy in the country. In order to ensure the purity of the election process it was thought by our Constitution-makers that the responsibility to hold free and fair elections in the country should be entrusted to an independent body which would be insulated from political and/or executive interference.” Thus Election conducted at regular, prescribed intervals is essential to the democratic system envisaged in the Constitution. So is the need to protect and sustain the purity of the electoral process.
According to the Hon’ble Supreme Court, the constitutional scheme with regard to holding of the elections to Parliament and the State Legislatures is quite clear. First, the Constitution has provided for the establishment of a high-powered body to be in charge of the elections to Parliament and the State Legislatures and of elections to the offices of President and Vice-President. That body is the Commission. Article 324 of the Constitution contains detailed provisions regarding the constitution of the Commission and its general power. The superintendence, direction and control of the conduct of elections referred to in Article 324 (1) of the Constitution are entrusted to the Commission. The words “superintendence”, “direction” and “control” are wide enough to include all powers necessary for the smooth conduct of elections.
As per the observations, judgments, directions and orders of the Hon’ble Supreme Court in various cases, the Election Commissioner is a high Constitutional Authority charged with the duty of ensuring free and fair election and the purity of electoral process. But man-made situation intended to defer holding of election should be sternly dealt. In any case, the duration of the Council is fixed as five years from the date of notification or nomination and no longer. It is incumbent upon the SEC and other authorities to carry out the mandate of the Constitution and to see that a new Council is constituted in time and elections to the Councils are conducted before the expiry of its duration of five years.
From the opinion thus expressed by the Apex 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 SEC shall try to complete the election before the expiration of the duration of five years’ period as stipulated in clause (1) of section 13 of the Act, 1971 and not yield to situations that may be created by vested interests to postpone elections from being held within the stipulated time.
It is true that the SEC 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. These are the observations and judgments of the Hon’ble Apex Court in different cases which are similar to ours.  The entire provision in the Constitution was inserted to see that there should not be any delay in the constitution of the new Council 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.
The decision taken by the State Govt. stating that due to rainy session, it has become necessary to defer the elections, or by invoking the provisio to Section 13(1) cannot be accepted as a legal and justifiable ground to postpone the elections and continue the affairs of the local body. There is  deliberate intention on the part of the Govt. to postpone the elections and the action taken cannot be justified as the postponement was a mala fide act. The State Govt. has given one reason as to why elections to  ADCs cannot be held at the end of term of the present Council, i.e. June is a rainy session which is not maintainable in the eyes of law and cannot be a factor to be taken into consideration for the purpose of postponing the election to the local body. Thus the reason given by the State that rainy season is imminent and therefore at this stage, election to ADCs is not possible, cannot be accepted. And without assigning any reason, the ADCs have been put in supersession mode which is clearly illegal.
It is necessary to analyze that Clause (1) of Section 13 of the Act, 1971 categorically states that every Council, unless sooner dissolved under any law for the time being in force  shall continue for five years from the date notification or nomination and no longer. The import of Clause (1) is that a period of five years from the date of the first notification or nomination is the term fixed for a Council. On the completion of five years, the Council cannot continue for any further duration except when there is administrative difficulties. Therefore, it is incumbent upon the SEC and other authorities including the State Government to carry out the mandate of the Constitution and ensure that a new body is constituted in time by holding election before expiry of five years as stipulated in the said clause.
Thus, the period of five years is constitutionally stipulated and it is the maximum period. That is also the minimum period of a Council, unless dissolved earlier. For no reason whatsoever the term of five years can be extended beyond five years. Thus, by virtue of Clause (1) to Section 13, the term of the Council has been fixed with certainty. Of course, there is a proviso and stated that there could be exceptional circumstances for not holding election in time, such as administrative difficulties, but the fact that there could be certain reasons to postpone the election would not empower the Commission to justify delay in the process of conduct of election. Postponement of election must be under exceptional circumstances as stated by the Hon’ble Supreme Court and the proviso to Section 13(1). Thus, the object of Clause (1) of  Section 13 is to ensure that there is no delay in the process of holding election in time by allowing local bodies to continue beyond the statutory period of five years. Clause (2) of  Section 13 is not relevant for this case and hence, would not necessitate any consideration.
When the term of the Council expires, then automatically under Clause (1) of Section 13, election would have to be held. That reconstitution on the expiry of the term of the Council or on dissolution cannot be beyond a period of five years as the term of a Council is five years and no longer. Having regard to the mandate of the Constitution and Section 13(1) election to  ADCs must be held in time without reference to the aforesaid reason cited by the State Government as that cannot be the reason to postpone the election.
Despite the reason assigned by the State for not holding election in time to the ADCs, and having regard to constitutional mandate and the judgments of the Hon’ble Supreme Court on the point, elections to ADCs must be held on the expiry of the term. As the State Election Commission has power of superintendence, direction and control of elections and preparation of electoral rolls as well and as that power is coupled with a duty, being an independent authority, it must be exercised scrupulously. The regular, periodic, free and fair election is the basic structure of the Constitution, of which the State Govt. cannot suppress arbitrarily.

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