(In this guest post, Dheeraj K. explores a constitutional controversy around local government elections in Bengaluru)

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Recently the Karnataka High Court while dealing with petitions against the inaction of the State government to hold elections to Bengaluru’s urban local body, the Bruhat Bengaluru Mahanagara Palike (‘BBMP’) gave a rather astonishing verdict. The decision of the division bench of the Court, in effect extended the term of the BBMP beyond the permissible limit of five years. The decision came after the State government preferred an appeal against the order of a single judge who had directed the State and the election commission to complete the election process before May 30, 2015.

In the year 2010 elections to BBMP were held and the newly constituted corporation had its first meeting on April 23, 2010. As per Article 243U of the Constitution of India which deals with the duration of municipalities, the term would expire on April 22, 2015 after the completion of five years and it is not constitutionally permissible for the term to be extended beyond this date. However, the State Government which is charged with the responsibility of notifying delimitation of wards under Article 243S and reservation of seats under Article 243T had failed to do so, thereby hindering the election process. Petitions were filed before the Hon’ble Court against such governmental inaction. The single judge had ruled against the government and directed it to complete the process in time. During the pendency of the appeal, the State Government notified in the official gazette on April 4, 2015 the dissolution of the BBMP in exercise of the powers vested with it under Section 99(1) of the Karnataka Municipal Corporation Act, 1977 (‘Act’) which empowers it to dissolve the corporation.

The appellant State contented that in light of such a dissolution as per Article 243U(3)(b) the time period for holding elections upon dissolution of a municipality is six months from the date of dissolution and hence, due to the change in factual circumstances, the direction of the single judge is liable to be set aside. The respondents on the other hand contended that the wording in Article 243U(1) is quite clear as far as the maximum term of a municipality is concerned and the same cannot exceed five years.

The dissolution of the BBMP four days before the expiry of its term, meant that the Court was faced with a very pertinent question as to whether six months duration would be granted to the state within which it was to hold elections or the time limit as ordered by the single judge was to be adhered to by the government. Ruling the former would mean that a judicial precedent would be set for governments to unnecessarily dissolve the municipalities a few days prior to the end of its term in order to push off elections. On the other hand ruling with the latter would mean a violation of Article 243U(3)(b) in so far as restricting the period for holding elections which is beyond the scope of the judiciary.

Interestingly, the court did contemplate the judicial precedent it would set if it validated the dissolution as dissolving a municipality four days prior to the end of its term and thereby extending the term is in contravention of constitutional provisions and future government could take refuge under this decision. Despite this grave concern, the Court ruled in favour of the State government and provided them with a period of six months to hold elections. It however added that the government and the election commission must perform its constitutional obligations and ensure the timely re-constitution of BBMP.

This ruling meant that the dissolution under Section 99 of the Act was valid and the responsibility to oversee the functions of the Corporation in absence of elected councilors rested with the administrator appointed by the State Government. This judgment apart from paving the way for a slippery slope, where governments could rely on this precedent and impose its authority over elected municipal corporations also validated a fraud on the constitution.

In the words of Justice P.N. Bhagwati in D.C. Wadhwa v State of Bihar, a constitutional authority cannot do indirectly what is not permitted by the constitution to do directly. By dissolving the municipality four days prior to the end of its term and appointing an administrator for six months from the date of dissolution, the government has extended the term of a municipality well beyond five years. Article 243U(1) is clear in its wordings that the municipality will continue to for a period of five years and no longer. This puts a maximum limit on the term of a municipality at five years. The State government through its acts has in essence violated this constitutional mandate and the Court in permitting it has validated a fraud on the constitution.

The mandate under Article 243U(3)(b) is one which envisages timely elections to the municipalities. The six months time duration fixed by it is a maximum time limit within which elections have to be held. The administrator is appointed in the interim to look after the functioning of the municipality till the time an elected body takes over. The provisio clause to Article 243U(3) provides that elections need not be conducted if the remainder of the term upon dissolution is less than six months. It can be inferred that the six months time period is merely for the elections to be held and to prevent any mischief of delaying the process of elections and thus allowing a nominated body to function. Furthermore, Article 243U(4) states that the municipality constituted upon dissolution shall only continue for the remainder of the period the dissolved municipality would have continued had it not been dissolved. This clearly states that under no circumstance can the five year cycle envisaged by the Constitution be disturbed let alone extended. The view was upheld by the Gujarat High court in the case of Gujarat Pradesh Panchayat Parishad v State Election Commission and others where is held that any attempt by the Executive or the Legislature not to hold elections cannot be permitted.

Article 243U(3)(a) directs the state government to complete the election process before the expiration of the five year period. The process of elections must have taken place well in advance. The state government has failed to fulfill this responsibility. It was held in Indira Nehru Gandhi v Raj Narain, that democracy postulates that there should be periodical elections. The Apex Court further held that periodic elections forms a part of the basic structure doctrine. The State government has violated this constitutional mandate as well. Interestingly, the Court does not address this issue at all but advised the State and the Election Commission to conduct periodic elections. Such an approach by the Court is lamentable.

The government has perverted the Constitution in as much as it has acted inconsistently and in opposition to the spirit of the Constitution. In this case the Court was charged with a huge responsibility since the interpretation given by the High Court would have become the law. The High Court had an opportunity to address these issues in detail and come out with a reasoned and possibly a landmark judgment outlining the lacuna that exists in such a case of dissolution of a municipality few days prior to its termination. It was open for the Court to invoke the doctrine of fraud on the Constitution in order to prevent the government from employing subterfuge. However, the High Court has failed to discharge this burden and turned a blind eye to these unconstitutional actions of the State Government.

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(The writer is a third-year student at the West Bengal National University of Juridical Sciences (NUJS), Kolkata)

Original author: gautambhatia1988