NOTE: The judgment which is been reported below, has since been affirmed by the Supreme Court in State of Goa v. Fouziya Imtiaz Shaikh, 2021 SCC OnLine SC 211, albeit with certain modifications in directions (c) and (e) noted at the end of this report.
Bombay High Court: The Division Bench of M.S. Sonak and Bharati Dangre, JJ., held that
Fairness in action is the benchmark in electoral matters.
Elections are the central institution of democratic representative governance, since in the democratic setup, the authority of the Government derives solely from the concept of the governed.
The constitutional Courts cannot be reduced to mute spectators when the right to contest or to vote at a election, though a statutory right is said to be scuttled on the basis on uninformed reservation policy which can be capriciously utilized for ejection of eligible contestant, eventually causing a serious dent in the democratic principles governing election laws as well as edifice of democracy.
While referring to the celebrated Supreme Court decision in Mohinder Singh Gill v. Chief Commissioner (1978) 1 SCC 405, has expressed a word of caution while entertaining any dispute involving and revolving around ‘Election’.
Following was the word of caution:
“Election disputes are not just private civil disputes between two parties. Though there is an individual or a few individuals arrayed as parties before the Court but the stakes of the constituencies as a whole are on trial. Whichever way the lis terminates it affects the fate of the constituency and the citizens in general. A conscientious approach with over riding consideration for welfare of the constituency and strengthening the democracy is called for. Neither turning a blind eye to the controversies which have arisen nor assuming a role of over enthusiastic activist would do. The two extremes have to be avoided in dealing with the election disputes”.
Factual Matrix
Goa State Election Commission’s (SEC) decision was to conduct the general elections in 11 Municipal Councils in the State of Goa.
The SEC, constituted under Section 237 of the Goa Panchayat Raj Act, exercising the power of superintendence and control of the conduct of all elections to the Council, on giving thoughtful consideration to the pandemic of Covid in the entire State of Goa and taking into account that the 11 Municipal Councils are located at different geographical positions, postponed the general elections, by a further period of three months by issuing a notification.
COVID-19 & Elections
Contemplating risk to the life of the people involved in the process, the Commission deemed it appropriate not to proceed with the election process. Further, by another notification the general elections were postponed having regard to the prevailing scenario to the effect that the official responsible for conduct of elections were going to be amongst the officers who were engaged in the Management of COVID-19 Vaccination Drive to be implemented in the State.
Apart from the above, Government’s concern was with regard to the congregation of crowds during the campaign period and holding the elections together. Since the election process involves holding public meeting, public rallies, public procession during the campaign period and contemplating that enforcing the health protocol and regulating the number of participants would be a serious issue.
Hence, in view of the above-said situation, the elections were postponed till April, 2021 or to the election date which may be determined by the Election Commission.
Analysis
Procedure adopted in determining the reservation of seats in different Wards of the Municipal Councils.
Challenge in the writ petitions of Mormugao and Mapusa Municipal Council
Percentage of reservation provided for women, being less than 1/3rd of the total number of seats, as prescribed in Article 243T(3) of the Constitution and Section 9(1) of the Goa Municipalities Act, 1968. When the record is perused, it bear out that in Mormugao Municipal Council total number of seats to be filled in by direct election are 25. Of these seats, 8 seats have been reserved for women; which gets translated into 32%. As per the mandate prescribed, for reservation to women, the number of seats which would make up to 1/3rd of 25 seats would be 8.33%.
Court expressed that the reservation for women is done by rotation and after delimitation done in 2015, rotation end up in three terms, commencing from 2015 and going to end in 2026. After charting the reservation which is already provided for women category in 2015 and 2021, the solution offered is the remaining Wards which are not reserved for women in the earlier two elections, may be reserved in 2026. Implicitly, the stand taken is that in order to complete the fraction, the seat would be rounded off in the three terms by rotation, in order to avoid excessive reservation to women and therefore the aforesaid solution.
Reservation of seats for women in Panchayat and Municipalities which were introduced by the 73rd and 74th Amendment seeking to achieve an avowed purpose, to make women a part of the decision making and governance process, in a democracy governed by law.
High Court opined that the course adopted by respondent 2 violate the mandate of law. The solution offered by respondent 2 in taking forward the reservation and to be adjusted within the three terms, is also, according to us defeat the very purpose as the mandate contained in the first proviso appended to sub-section 1 of Section 9 which is to be followed in every Council which means, the Municipal Council constituted or deemed to be constituted under the Act for a Municipal area and as a body corporate with a prescribed tenure. The fraction even if it is created in calculating 1/3rd reservation cannot be permitted to be rounded off towards the earlier denomination and the normal principle for rounding off, which is based on logic and common sense.
Bench relying on the decision in Ashok Maniklal Harkut v. Collector, Amravati [1988 Mah LJ 378], Ganesh Sukdev Gurule v. Tahsildar Sinnar (2019) 3 SCC 211, found that the approach adopted by respondent 2 would stare in face of the constitutional mandate, reserving 1/3rd seats for women and to that extent the impugned order would be quashed. Adding to this, Court quashed and set aside the order that reserved 8 seats in Margao Municipal Council where the total number of seat to be filled were 25.
Even in Mapusa, reservation for women had been flawed since out of 20 seats available to be filled in, 6 seats reserved for women which amounted to 30% and which is less than the prescribed 1/3rd percentage and adopting the reasoning aforesaid, the number of seats reserved for women in Mapusa ought to have been 7. The same is the case in respect of Valpoi, Sanguem, Pernem Municipal Council where 10 seats are available for election and 3 seats have been reserved for women, which amount to 30% of the total number of seats, whereas the reservation provided for women is 1/3rd and 4 seats should have been gone to women, in each of the aforesaid Municipal Council.
High Court held that the Director acted in breach of the Constitution as well as the statutory provision.
Further, it was stated that the principle of law laid down by the Supreme Court in case of N.P. Ponnuswami v. Returning Officer AIR 1952 SC 64, a leading case in election law, revolve around the relevant provisions in the Constitution, in form of a bar and deal with the scope amplitude and limitation imposed in the Constitution in election matters.
Constitution Bench judgment in case of Mohinder Singh Gill v. Chief Commissioner (1978) 1 SCC 405 formulated two types of challenges:
- first relating to the proceedings which interfere with the process of election and
- second which accelerates the completion of election and act in furtherance of election.
Conclusions in the above decision were determinative factor whether the interference will have the effect of interrupting, obstructing or protracting the election proceedings or whether it sub-serves the election procedure or facilitate the completion of election and that would determine whether an ‘election is called in question’.
Judicial intervention is imminent for correcting or smoothing the election process by removing the obstacles therein, the writ Court shall not be overwhelmed by the non-obstante clause, the underlining emphasis being on delaying, interrupting, protracting or stalling the election proceedings. The courts can always examine any action which is motivated by extraneous reason and also as to whether it is derogating the germane objective.
In the instant case, it is apparent that impugned action cannot stand to the test of fairness in action.
Bench further remarked that,
“…action of the Director and on the conduct of the Election Commission as a mute spectator, which in fact was expected to act and live up to its role conferred by the constitution, ensuring free and fair elections, we are not expected to be oblivious to the situations which have been drawn to us. We do not appreciate the helplessness expressed by the State Election Commission, which is supposed to be an authority independent of the Government.”
State Election Commission has the power of superintendence over the “conduct of elections” is wide enough, which include the power to take all steps necessary for conduct of the free and fair election.
“Silence on part of the constitutional functionary is highly detrimental to the democratic to the democratic concept of the country.”
Second Ground on which impugned order dated 04-02-2021 has been attacked
Allotment of reserved seats is based on no predetermined policy and the Director, taking undue advantage of the absence of policy has chosen to make allotment without the application of mind and in an arbitrary, whimsical and capricious manner.
High Court for the above-stated ground held that an unfretted discretion in the State was always frowned upon and violate Article 14 by mere absence of policy, is no ground to strike the impugned provisions, because it is not a matter where there are no guidelines.
Absence of definite and certain policy of rotating the reserved seats would obviously inflict a corresponding detriment on some person by being susceptible to arbitrary use.
Bench in view of the above discussion stated that to achieve the avowed purpose of reservation within the constitutional and electoral dynamics, it is obligatory to have adequacy of representation of all classes as per the reservation policy uniformly followed. The constitutional Courts would act as watchdog and expected to be conscious about proper exercise of power to repel any impediment or detriment to any weaker section of class as an entailing consequence of decision taken.
Constitutional Courts, cannot remain oblivious to fundamental principles governing the realm of reservation policy in election matters.
In the instant case, malice in law and in fact can be discerned, obviously for the reason that in a multi-party democracy, the existence of reservation policy is a sine qua non to uphold de constitutional policy.
Adding to the above, Court expressed that the Pertinence of free and fair election stems from participation of all and sundry and as well as representation from the entire societal strata which has led to inculcation of definite reservation policy in election matters.
Amongst the 11 Municipal Councils whose process of reservation and rotation has been alleged to be flawed one, their term has already expired and it is being informed that its administration has been taken over by the body of Administrators.
If the authorities move with lightning speed, which they are expected to, since in the exigency of the situation which prompted the SEC to be agile in issuing the Notification declaring the elections when the Writ Petitions were pending before the Court, challenging the impugned Notification, expecting the same promptitude by the election Commission and on behalf of the State Government to rectify its procedure, and ensure free and fair election which is a hallmark of democracy.
Bench directed respondent 2 to redetermine the reservation of seats in the Wards of the Municipal Council in the light of observations made by the Court.
M.S. Sonak, J., expressed that the crucial expressions were made clear that while reservation in favour of women can exceed one-third, under no circumstances can the same be less than one-third of the total number of seats to be filled by direct election in every Municipality.
Hence, in so far as the Mormugao Municipal Council in which the total number of seats to be filled by direct election were 25, the Director was both constitutionally as well as statutorily bound to reserve at least nine seats for women, which, he has admittedly failed to.
“…reservation of only eight seats out of a total number of 25 seats in favour of women is a reservation which is less than one-third the total number of seats to be filled by direct election to the Mormugao Municipal Council.”
The reservation of only six seats from out of a total number of 20 seats to be filled by direct election to the Mapusa Municipal Council amounted to a reservation less than one-third of the total number of seats to be filled by direct election. The Director acted in breach of both constitutional as well as statutory provisions in failing to provide reservation of not less than one-third of the total number of seats, in favour of women, and to that extent the impugned order dated 4th February 2021 is required to be quashed and set aside.
“…whilst making the reservation, the Director, is statutorily bound to have regard to the concentration of population of ST, SC, and OBC in any particular wards.”
Following order was passed:
(a) Writ Petition No. 515 of 2021 (filing) is dismissed.
(b) Writ Petition No. 85 of 2021, 86 of 2021, 87/2021, 88/2021, 90/2021, 91/2021, 524/2021 (Filing) and 525/2021 (Filing) are hereby allowed. The impugned order dated 04/02/2021 issued by the Director and ex-officio Additional Secretary, Municipal Administrator/Urban Development, Goa in so far as it concerned the Municipal Council of Sanguem, Mormugao, Mapusa, Margao and Quepem is quashed and set aside.
(c) By a Writ of Mandamus, we direct the Director and ex-officio Additional Secretary, Municipal Administrator/Urban Development, Goa to issue fresh Notification under sub-section 1 of Section 9 r/w. Sub-section 1 of Section 10 of the Goa Municipalities Act, 1968 within a period of 10 days from today, thereby ensuring inter alia, reservation for women of not less than on-third of the total number of seats reserved for direct elections to the Municipal Councils.
(d) While exercising the power afresh and rectifying the gross illegalities pointed out in our judgment and order, the Director shall give due weightage to our observations made therein.
(e) The State Election Commission of Goa is directed to expeditiously notify the election programme, on the order for reservation of seats in the Municipal Councils being issued by the Director, Respondent No. 2 and the State Election Commission shall align the schedule of election in a manner, to ensure its completion by fixing up its various stages as per the Goa Municipalities (Election) Rules, 1969 and the culmination of the process on or before 15th April, 2021.[Romaldo Fernandes v. State of Goa, 2021 SCC OnLine Bom 275, decided on 01-03-2021]