These three writ petitions in the nature of public interest litigation have been filed, one by the People's Union for Civil Liberties (PUCL) through its organising Secretary of the U.P. Chapter, the other by one Sri Abdul Jabbar an advocate of the Civil Court Mathura and the third by an organisation known as U.P. State Coordination Committee of NAPM praying for declaring Rule 4(2) of the Uttar Pradesh Municipalities (Election of Members, Corporators, Chairmen and Mayors) Rules, 2010 as ultra vires the provisions of the Constitution and also ultra vires to the provisions of the U.P. Municipalities Act, 1916 and the Uttar Pradesh Municipal Corporations Act, 1959.
We may at the outset quote Rule 4 of the said rules in order to project an understanding of the issue that has been raised on behalf of the petitioners.
"Rule 4. (1) The superintendence, direction and control of the conduct of the election of the corporators, members, chairmen and mayors or municipalities conducted in accordance with provisions of these rules.
(2) The election to the post of members, corporator chairperson and mayor of the municipalities shall not be contested on the basis of political parties."
The issue raised is therefore confined to elections of the Municipal Corporations and Municipalities which are institutions of self-governance at the Urban Level. The elections to the office of Corporators and Chairpersons are held under the provisions of the aforesaid two acts and in order to give effect to the said provisions, rules have been framed as referred to hereinabove.
It is undisputed that no such provision was earlier existing either in the Act or in the rules, preventing the participation of candidates of political parties in relation to elections of the Municipal Corporations or Municipalities. The introduction of Sub Rule (2) of Rule 4 declaring that the election to the post of members, corporators, chairpersons and mayors shall not be contested on the basis of political parties, has led to the filing of these writ petitions, seriously contending that participative democracy, which is the essence of the fundamental rights of the citizens guaranteed under the Constitution, shall be jeopardised and such a provision is constitutionally invalid as it violates the fundamental rights guaranteed under Article 19(1)(c) read with Article 19(4) of the Constitution of India. It also violates the provisions of autonomy as entrusted to the municipalities under Part IX-A of the Constitution.
Sri Ravi Kiran Jain learned Senior Counsel advanced his submissions with the help of a comparative chart of the relevant provisions of the Constitution to contend that Municipalities are constitutional manifestations of governance in the same way at the local level, as are the State legislatures at the State Level and the Parliament at the level of the Union. He submits that these constitutional provisions were brought about also in respect of a village panchayats realising that there has to be a complete autonomy in matters of civil governance of society into the hands of the local bodies, which directly allows the people to have their say in the governance of the society in which they live. This constitutional goal according to Mr. Jain can be effectively realised if people are allowed complete freedom to choose their own representatives, and for the said purpose the political parties should be allowed to have their say, as it is the political parties which really make people aware of the political rights that they possess under the Constitution. He submits that in order to choose a representative the electorate always has in mind the idea of development through self-governance, and for that purpose the voter or the elector always has in mind to elect the right person who may project his point of view of governance and development. This can be achieved according to Sri Jain by educating the masses through a collective thought process for which the political parties are best equipped. He submits that the roll of political parties is therefore extremely important in the progress towards participative democracy and the elimination of political parties for no valid reason renders any such restriction to be unconstitutional and against the constitutional goals as set out hereinabove. He has advanced his submissions by inviting the attention of the Court to the various constitutional provisions and he submits that in order to ensure free and fair elections, which is the essence of participative democracy, the ban on political parties relating to their participation in the elections is unjustified. We shall refer to the submissions in detail later on in addition to the aforesaid argument.
Sri Jain further contends that in view of the provisions of Section 13B of the U.P. Municipalities Act, 1916 and Section 45 of the Municipal Corporations Act, 1959 and the other related provisions, the power to regulate elections vests in the State Election Commission which cannot be usurped by the State Government in exercise of the powers under Section 87 and Section 540 and the provisions of Section 296 and 300 of the U.P. Municipalities Act, 1916. He contends that it was beyond the competence of the State legislature or the State Government to have trenched upon the regulatory powers conferred on the State Election Commission by the statute itself, and hence the prohibition created under the impugned rule is ultra vires the powers of the State Election Commission. He submits that the Election Commission has nowhere notified any such restriction and therefore the notification issued to that extent is invalid.
Sri Jain contends that the Municipalities and Municipal Corporations, after the 74th Amendment to the Constitution, are institutions of complete governance and the constitutional provisions have been introduced under Part IX-A to achieve the object of the Directive Principles of State policy enshrined in the Constitution as also to realise the socio economic and cultural rights of the people at large. He has invited the attention of the Court to paras 68, 68-A, 69, 105 and 106 of the decision in the case of S.R. Bommai and others Vs. Union of India and others, AIR 1994 SC 1918, and in the case of Ahmedabad Municipal Corporation Vs. Nawab Khan Gulab Khan and others, AIR 1997 SC 152 (Para 6). The recent judgment in the case of Bhanumati etc. etc. Vs. State of U.P. and others, has also been relied on reported in AIR 2010 SCW 6470. The contentions have also been raised on the strength of certain paragraphs of the decision in the case of Smt. Indira Nehru Gandhi Vs. Union of India and others, AIR 1975 SC 2299, and the case of PUCL Vs. Union of India and others, 2004 (1) JT 152. Sri Jain contends that in the absence of political parties, there cannot be free and fair elections. The prominence of the political parties has been acknowledged by the Legislature and Laws have been made to govern and control the functioning of the political parties including their accounts of expenses etc. He, however, contends that such control with regard to elections lies with the State Election Commission and not by the State Government in the manner in which it has been done herein. The recognition of political parties and allotment of symbols are within the domain of State Election Commission.
Relying on the decision in the case of Mohinder Singh Gill and another Vs. The Chief Election Commissioner of India and others, AIR 1978 SC 851, Sri Jain emphasied the importance and concept of democracy and Role of the Election Commission. He contends that the Election Commission is a totally independent and impartial Constitutional body which should remain free from any interference from the executive. In short, he submits that the State Election Commission has plenary powers which cannot be impeded by any subordinate or delegated Legislation. It is urged that Sections 24 and 25 of the Municipal Corporations Act 1959 and Section 13-C and 13-D of the U.P. Municipalities Act, 1916 make provision for qualification and disqualification for elections and there being no such disqualification prescribed for a candidate to contest the election through a political party, the impugned Rule is ultra vires to the aforesaid provisions. The contention raised is that there is no bar to the participation of a political party or it's candidates in the elections under the aforesaid Act, hence any Rule which has been made under the provisions of the aforesaid Act cannot travel beyond the Legislative intent as indicated therein so as to introduce a new restriction altogether.
Sri S.N. Shukla, learned counsel for the petitioner, in Writ Petition No.52172 of 2010, has also advanced his submissions contending that the Rules are ultra vires the provisions of Article 243-R and 243-ZA as well as Article 256 of the Constitution. He also submits that the Rules impinge the democratic principles as enshrined in the preamble of the Constitution of India. He submits that such rights which are guaranteed under the Constitution and protected by it, cannot be over ridden by delegated legislation. The impugned rules are vitiated for having been published not in accordance with Rules of business framed under Article 166 of the Constitution of India. Sri Shukla has relied on the following decisions to substantiate his submissions:-
1.Election Commission of India Vs. Shivaji, (1988) 1 SCC 277 (para 6);
2.P.R. Ramesh Vs. State of Karnataka, AIR 2005 Karnt. 364 (Paras 3 & 5);
3.Ramesh Mehta Vs. Sanwal Chand Singhvi and others, (2004) 5 SCC 409 (Para-22);
4.Hindalco Industries Ltd. Vs. Union of India and others, (1994) 2 SCC 594 (Para 7);
5.Union of India and others Vs. Dinesh Engineering Corporation and another; (2001) 8 SCC 491 (Para 12); and
6.Onkar Lal Bajaj and others Vs. Union of India and another, (2003) 2 SCC 673 (Para 27) Sri Jaideep Narain Mathur learned Additional Advocate General for the respondent State submitted that the said apprehension expressed by the petitioners that the impugned Rule amounts to a prohibition on the political parties is absolutely misplaced, inasmuch as, the said rules restricts the contest of elections of members, corporators and chairpersons on the basis of symbols allotted by the political parties.
He submits that the aforesaid provisions do not impose any restrictions on the rights of the political parties to propagate their ideas or their freedom to educate the electorate or the masses to support a particular candidate. He submits that the aforesaid restriction has been placed and should be understood in the limited sense that the elections will not be allowed to be contested on the basis of symbols allotted to political parties as the same would violate the Elections Symbols (Reservation of Allotment Order) 1968. He, therefore, submits that this provision nowhere infringes the fundamental right of either the citizens at large or any candidate in particular, nor does it restrict the right of the political parties to air their views in relation to such elections.
He submits that these rules were published in their draft form on 11th May, 2010 and as per the provisions, objections were invited which were raised by various political parties and thereafter the final rules were published on 18th June, 2010 after considering the same.
Sri Mathur replying to the contention of Sri Jain submits that the entire theory of participative democracy is a cobweb of arguments knitted on behalf of the petitioners which forgets to take into account the structure of Governments at the Urban Municipal Level and the Panchayat Level and on the other hand at the State Level or Union Level. He submits that the formation of Government at the State Level or the Union Level is on the basis of majority, and it is for this reason that the importance of political parties was recognised in the Representations of People's Act, including the laws of defections, in order to ensure a stable Government for governance in the larger interest of the people.
Such a concept of structural Government is nowhere contemplated either at the Urban Municipal Level or the Panchayat Level. The elections are by themselves for individual posts and there is no concept of governance by the majority or the formation of a Government. The Municipality or the Panchayat with the Chairperson as a whole functions as a body taking decisions by the majority in resolutions to be passed in relation to the functions to be performed as prescribed under the relevant acts.
Thus, the structure and functioning of Urban Municipalities in so far as governance is concerned has a different procedure altogether in which there does not appear to be any role of a political party. Nonetheless he submits that the rule only restricts the rights of political parties to set up a candidate with their own symbol. It is only in this sense that a restriction has been imposed on candidates and not on the propagation of ideas by the political parties. He submits that the right to contest elections of any of the candidates is not taken away or abridged and apart from this none of the political parties have come up raising any such grievance against the aforesaid rule.
He has further embellished his arguments by contending that without the participation of political parties the elections in this State at the Urban and Panchayat Level have been going on for more than half a century and there is no material that may indicate that the governance of the Panchayats or the Urban Bodies have in any way been affected due to the elections having been held on non-party basis. He, therefore, contends that any such contention which has been raised is a figment of imagination without any of the rights of the citizens or the contestants for the political parties being affected in any manner whatsoever.
He further submits that the State Government has exercised its powers only to the extent as indicated in the provisions and referred to in the preamble of the notification dated 18th June, 2010, and that as explained above the aforesaid restriction can be imposed by the State Government which in no way curtails the powers to be exercised by the State Election Commission in relation to holding of the procedure to be adopted for elections of Urban Local Bodies.
Sri P.K. Mishra, learned counsel for the State Election Commission with the help of compilation of the Gazettes and Notifications issued from time to time and a short counter-affidavit filed by him, contends that the State Election Commission is bound by the Rules so framed as the Election Commission cannot stultify legislation. He contends that the State Government could have framed such Rules as it was an unoccupied area and the same amounts to supplementing the provisions under the Act and cannot be said to be ultra vires either to any constitutional provision or the provisions of the 1959 Act or the 1916 Act. He, however, submits that the State Election Commission, while proceeding to conduct the elections, has to work within the Rules framed and, therefore, the State Election Commission would proceed accordingly. Sri Mishra has relied on almost the same decisions which have been cited at the Bar and he contends that a suitable machinery having been provided, the State Election Commission has nothing to add any further.
Sri Jain replying to the aforesaid submissions, contends that the State Election Commission has taken a stand contrary to it's own notifications and there is no such bar placed by the State Election Commission. It is, therefore, urged that the Commission cannot be permitted to take a stand which is contrary to the mandate of the Constitution and is even other wise unsupportable in law.
Sri J.N. Mathur to the aforesaid extent has urged that there is no such provision for consulting the State Election Commission before framing of any such Rule nor is there any fetter on the powers of the State Government and as explained by him, these Rules do not restrict the rights of the political parties to propagate their ideas. Relying on the decision in the case of N.P. Ponnu Swami Vs. Returning Officer, and others, Vs. Returning Officer and others, AIR 1952 SC 64, and other judgements which have been filed along with the compilation, Sri Mathur contends that the right to contest election is only a statutory right and not a fundamental right. Accordingly, the right to contest election can be regulated and a reasonable restriction can be placed with which there can be no quarrel. He contends that the Rules can be framed in order to avoid any violation of the Election Symbols (Reservation of Allotment) Order 1968" and other related Rules and, therefore, the impugned Rule does not travel beyond that. He, therefore, contends that the there is no infringement of any of the fundamental or legal right of any candidate intending to contest the elections under the aforesaid enactments.
Having heard learned counsel for the parties and before embarking on our findings on the issues raised, two broad propositions have been advanced, namely, that the impugned rule is ultra vires the basic feature of the Constitution, which Sri Jain contends to be the involvement of political parties in the democratic process of elections to achieve the goal of complete governance. The second is the rules being ultra vires the provisions of the U.P. Municipalities Act, 1916 and the U.P. Municipal Corporation Act, 1959.
In order to appreciate the contentions so raised, it would be appropriate to refer to the 74th Amendment to the Constitution whereby Part XI-A was introduced. The said Chapter was incorported to give constitutional protection to Urban Local Governments. The same provides for the Constitution of Municipalities, its functioning and its powers as contained in Article 243-P to Article 243-ZG.
Needless to say that the said provisions give these Local Bodies a constitutional status and the elected chairperson and members a constitutional responsibility to carry out functions assigned and conferred on Municipalities. It encompasses within itself planning, development, governance, control of finances, imposition of taxes and everything connected with the economic development of the society and rendering of social justice. The constitution of the Municipalities is provided for together with its duration as well as the area of its operation.
Prior to the coming in of this constitutional protection, the enactments relating to constitution of Local Bodies already existed, namely, the Uttar Pradesh Municipalities Act, 1916 and the Uttar Pradesh Municipal Corporations Act, 1959. The other Urban Bodies like Nagar Nigams and the Nagar Maha Palikas have also been constituted under various legislations framed time to time.
In the instant case, we are directly concerned with the elections and local self governance under the U.P. Municipalities Act, 1916 and the U.P. Municipal Corporations Act, 1959.
Section 296 of the 1916 Act empowers the State Government to frame Rules and the same is quoted hereinbelow:-
"296. Obligation and power of the State Government to make rules.- (1) [The State Government] shall make rules consistent with this Act in respect to the matters described in Sections [95, 127, 153 and 235].
(2) The [State Government] may make rules consistent with this Act, -
(a) Providing for any matter for which power to make provision is conferred expressly or by implication, on the [State Government] by this or any other enactment in force at the commencement of this Act;
(b) generally for the guidance of a [Municipality] or any Government officer in any matter connected with the carrying out of the provisions of this or any other enactment relating to municipalities;
(c) for the appointment of an ad hoc committee to advice the [Municipality] on the preparation of master plan for the [municipal area] and its execution; and
(d)providing for the layout of public streets, residential and non-residential areas.]"
This is coupled with the provisions of Section 300 which prescribes the manner of the publication of the rules so made by the State Government.
With regard to the superintendence and conduct of elections, the Act confers power on the State Election Commission under Section 13-A and 13-B quoted herein below:-
"[13-A. General election. - Except as provided in Section 31-A, the State Government shall, in consultation with the State Election Commission, by the Official Gazette, appoint date or dates for general election to a municipality.] [13-B. Superintendence etc. of the conduct of the elections. - [(1)] The superintendence, direction and control of the conduct of all elections to the municipalities shall be vested in the State Election Commission.] [(2) Subject to sub-section (1), the Chief Election Officer (Urban Local Bodies), referred to in sub-section (2-A) of Section 12-B shall supervise the conduct of all elections to the municipalities.]"
The qualifications for the election of a member are provided in Section 13-C and the disqualification for a membership is provided in Section 13-D. There is a saving clause under Section 13-G which confers power on the State Election Commission to make provision for the conduct of elections in so far as provisions that have not been made under the Act. The same is quoted herein under:-
"13-G. Order regarding conduct of elections. - [In so far as provision with respect to any matter is not made by this Act, the State Election Commission] may, by order, make provision with respect to the following matters concerning conduct of elections, that is to say,-
(a) issue of notifications for general elections;
(b) the appointment, powers and duties of Returning Officers, Assistant Returning Officers, Presiding Officers and Polling Officers and clerks;
(c) appointment of dates for nomination, scrutiny, withdrawal and polling;
(d) the manner of presentation and the form of nomination paper, the requirements for a valid nomination, scrutiny of nominations and withdrawal of candidature;
(e) appointment and duties of election agents, polling agents and counting agents;
(f) procedure at general election including death of candidate before poll, procedure in contested and uncontested elections, 6[* * * ];
(g) identification of voters;
(h) hours of polling;
(i) adjournment of poll and fresh poll;
(j) manner of voting at elections;
(k) scrutiny and counting of votes including recount of votes and procedure to be followed in case of equality of votes and declaration of results;
(l) the notification of the names of the members elected for the various wards of the municipality and the due constitution of the [Municipality];
(m) return of forfeiture of deposits;
(n) manner in which votes are to be given by the presiding officers, polling agents or any other person who being an elector for a ward is authorised or appointed for duty at a polling station at which he is not entitled to vote;
(o) the procedure to be followed in respect of the tender of vote by person representing himself to be a elector after another person has voted as such elector;
(p) the safe custody of ballot boxes papers and other election papers, the period for which such papers shall be preserved and the inspection and production of such papers; and
(q) generally on all matters relating to conduct of elections."
Similar provisions exist under the Uttar Pradesh Municipal Corporations Act, 1959, namely Section 87, followed by Section 540 which is quoted below:-
Sec. 87. Power to make rules. - (1) The State Government may make rules in respect of matters to be prescribed but which are not prescribed in the Act or by order.
(2) without prejudice to the generality of the foregoing power such rules may provide for -
(a) the manner of notification of election of Nagar Pramukh, Upa Nagar Pramukh, or Sabhasad, and of a vacancy in the office of Nagar Pramukh, Upa Nagar Pramukh or Sabhasad;
(b) manner of election of members of Executive Committee, Development Committee and committees constituted under clause (e) of Section 5 and of co-option of members of the Development Committee;
(c) manner of election of Vice-Chairman of the Executive Committee and Development Committee and Chairman and Vice-Chairman of Committees constituted under clause (e) of Section 5;
(d) maximum salary and allowances of Mukhya Nagar Adhikari;
(e) manner of reference under Section 82 of any question as to disqualification of member;
(f) procedure for ascertaining if a member is suffering from a serious infectious disease for the purposes of Sections 25 and 83; and
(g) matters relating to taking of oath under Section 85.
The provisions of conduct of elections under the U.P. Municipal Corporations Act, 1959 are contained in Sections 45 and 46 which are quoted herein below:-
"[45. Superintendence etc. of the conduct of elections. - The superintendence, direction and control of the conduct of elections of the Nagar Pramukh, Upa Nagar Pramukh and Sabhasad of the Corporation shall be vested in the State Election Commission.]
46. Order regarding conduct of elections. - In so far as provision with respect to any matter is not made by this Act, [the State Election Commission] may, by order, provide for matters concerning conduct of elections to the offices of Nagar Pramukh and Upa Nagar Pramukh and to the seats of 32[* * *] Sabhasads, that is to say -
(a) [* * *]33 .
(b) the appointment, powers and duties of Nirvachan Adhikaris (Returning Officers), Sahayak Nirvachan Adhikaris (Assistant Returning Officers), Nirvachan Adhyakshas (Presiding Officers) and Matdan Adhikaris (Polling Officers) and clerks;
(c) appointment of dates for nomination, scrutiny, withdrawal and polling;
(d) the manner of presentation and the requirements for valid nomination, scrutiny of nominations and withdrawal of candidatures;
(e) appointment and duties of election agents, polling agents and counting agents;
(f) procedure at general elections including death of candidate before poll, procedure in contested and uncontested elections; [* * *]34;
(g) identification of voters;
(h) hours of polling;
(i) adjournment of poll and fresh poll;
(j) manner of voting at elections;
(k) scrutiny and counting of votes including recount of votes and procedure to be followed in case of equality of votes and declaration of results;
(l) the notification of the names of the persons elected as Sabhasads 35[* * * ], Nagar Pramukh and Upa Nagar Pramukh;
(m)refund and forfeiture of deposits;
(n)manner in which votes are to be given by Nirvachan Adhyaksha (Presiding Officer), polling agent or any other person who being an elector for a ward is appointed for duty at a polling station at which he is not entitled to vote;
(o) the procedure to be followed in respect of the tender of vote by person representing himself to be an elector after another person has voted as such elector;
(p) the safe custody of ballot boxes, ballot papers and other election papers, the period for which such papers shall be preserved and the inspection and production of such papers;
(q) [* * * ] 36;
(r) issue of copies of election papers and fixing of charges for such copies;
(s) maintaining of list of Sabhasads 37[* * * ] for the purpose of 38[elections of] 39[* * *] [* * * ]40; the Upa Nagar Pramukh]; and
(t) generally on all matters relating to conduct of elections."
The qualifications and disqualifications of Members is provided for in Sections 24 and 25 of the said Act.
A perusal of the scheme of the aforesaid provisions, therefore, indicates that the State Election Commission has been conferred with the power to conduct elections. There is no doubt that the State Election Commission means the Commission as referred to under Article 243-ZA of the Constitution of India read with Article 243-K. Article 243-Za and Article 243-K are quoted herein below:-
"243-ZA. Elections to the Municipalities. - (1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Municipalities shall be vested in the State Election Commission referred to in Article 243-K.
(2) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Municipalities."
"243-K. Elections of the Panchayats. - (1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor.
(2) Subject to the provisions of any law made by the Legislature of a State, the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may by rule determine;
Provided that the State Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of a High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment.
(3) The Governor of a State shall, when so requested by the State Election Commission, make available to the State Election Commission such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by clause (1).
(4) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Panchayats."
The said constitutional scheme coupled with the statutory provisions contained and referred to hereinabove, leave no room for doubt that the State Election Commission is empowered to exercise all powers with regard to the conduct of free and fair elections. It is also empowered to make such provisions that are necessary for the conduct of elections. The process of election commencing with a notification issued by the State Government immediately brings into operation the functions of the State Election Commission. Not only this, Section 13-G of the U.P. Municipalities Act, 1916 and Section 46 of the U.P. Municipal Corporations Act, 1959 empower the State Election Commission to make provisions for the matters indicated therein. The said sections nowhere empower the State Election Commission to ban the contest of elections by a candidate on the basis of a political party.
On the other hand, the power to make rules under Section 296 of the Municipalities Act, 1916 and Section 87 of the 1959 Act also do not indicate any specific rule making power being retained by the State Government for prohibiting the participation in the elections of a candidate on the basis of political parties. The rules only provide that the same shall be consistent with the provisions of the Act or for carrying out the provisions of the Act. Section 87 of the 1959 Act also relates to the rule making power of the Government in the matter of elections. The aforesaid provisions also do not intend to prohibit the participation of candidates contesting on the basis of political parties.
It is therefore clear that in none of the aforesaid provisions was there a legislative intent to ban contest of candidates on the basis of political parties.
It is for the aforesaid reason that Sri Mathur learned Additional Advocate General advanced his submissions by contending that Sub rule (2) of Rule 4 impugned herein should be read as "shall not be contested on the basis of the symbols allotted under the Symbol Reservation Order 1968 to the political parties". He contends that if the Rule is read in the aforesaid manner then what is really prohibited is the use of election symbols of the political parties. It is for this reason that he also contends that the political parties have not approached this Court for any violation of any Rule or Law or any Rights of the political parties to set up their candidates for contesting the elections in the Municipal Corporations and Municipalities.
To our mind, if such a law has to be imposed then the law has to emanate from the legislature and such a restriction as contained in the impugned rule could not have been imposed under the rule making power conferred on the State Government under the enactments referred to hereinabove. The rule making power, which is an instrument of delegated legislation, could not have been utilised to frame a rule that does not serve any purpose of the parent Act. There is no legislative intent either in the 1916 Act or 1959 Act to impose such a restriction. Apart from this, the rules can place restrictions in the shape of qualifications or disqualifications on the persons who are to be fielded as candidates provided they suffer from any such disqualification as prescribed under the Parent Act. The Rule has to cater to the Parent Act for its fulfilment. The contest of election by a candidate on the basis of a political party is no disqualification prescribed in either of the two enactments. The State Election Commission has not framed any Rule prohibiting the contest of elections on the basis of political parties. In such a situation, Sub Rule (2) of Rule 4 is an introduction beyond the competence of the rule making authority and is therefore ultra vires the provisions of the 1916 Act and 1959 Act as referred to herein above. It is an inroad into the rule making authority of the State Election Commission which is not subservient to any rule that is ultra vires as concluded hereinabove.
Sri Jain has invited the attention to certain authorities including one by Granville Austin. He submits that democracy is the accepted norm of governance of our country and the theme of the constitution.
Having perused the same and the submissions advanced it would be safe to assume that a party is a group of people formed to participate and deliberate together for a common cause. It is a group which constitutes itself to further a cause or represent a cause. A political party therefore, comprises of such persons who believe in a particular political ideology, and also a belief that their particular approach of governance and idea of government, is the most suitable form of governance for the benefit of the society. It is thus an organisation which professes to project a particular theory, the ultimate object whereof is governance through a participative process. This element of a political party makes it a vital political institution for the expression and manifestation of political thoughts and ideas. They therefore are an indispensable institutional component of the democratic system. The reason is that they make a positive contribution towards the consolidation of democratic institutions, of which elections are also an integral part. They inform the public at large about the political process and the idea of governance and most of the political parties set up their candidates to advance the cause as propagated by them.
The electorate which is entitled to exercise its right of franchise is therefore given an option by the political parties to choose a candidate who is able to identify himself with the desires of the majority. This is a process of direct consultation with the public at large in order to ascertain that in what manner and how the people would like to govern themselves. The political parties therefore exercise an influence so as to generate a collective opinion of the public, and the majority of such collective influences ultimately contribute to the election process empowering those whom the people desire to be elected as representatives for their actual governance. The election manifestoes that are issued by the political parties are also illustrative of such influential processes adopted that are necessary to inform the public at large about political participation or participation in actual governance. The Constitutional mandate contained in Part-IX-A defines the actual role of the elected bodies and the manner of their governance including finances and covering social and cultural dimensions and above all the manner in which social justice can be achieved. This in our opinion would be possible in a better way where political parties exist in a democracy and they are allowed to propagate their ideas for either acceptance or rejection by the public at large. A political party, therefore, provides a platform for healthy propagation of ideas that nurse the growth of democracy which has to be preserved in view of our constitutional scheme. The political parties are therefore a legitimate organisational resource which is a fundamental part of the institutional structure of democracy.
There is a criticism as well about the contribution of political parties namely that they create a bias in the mind of the public at large with sinister interests and they at time succeed in undermining, perverting and usurping the will of the majority. As compared to this criticism to our mind, the participatory direct involvement of political parties is an optimistic role that encourages the decision making process of the public at large over larger common issues. A modern representative democracy would not be workable without the existence of political parties or such organisations and interest groups. They are necessary to bring about an integration of society through their propagation of ideas and to bring the public at large to a common platform to agree to a particular form of governance. This makes political parties the corner stone of a democratic society.
Some of the potential functions of a political party can be summarized as the mobilisation of public opinion, articulation and propagation of the aggregate of interests, formulation of public policy, the projection of political leaders and the organisation of governance.
The development of this process and growth of political parties is an essential element of basic human development of governance. It reflects the dynamics of the political process. It is a science dealing with the act and practice of governance. This is brought about through elections in a democracy which are the passage for political ideologies to engraft firmly and decisively in actual governance. Candidates set up by political parties therefore contribute towards formation of public opinion for a concrete road map of governance. Election manifestoes are illustrations of such propagation of ideas during elections contested by political parties through their own ideology. They try to secure an election of a candidate who represents a collective opinion of the majority of the society. They politically educate the electorate converting their role from mere spectators to active participants. This they try to ensure through actual governance which is possible only if candidates are elected representing their thoughts and ideas. This process therefore offers the public at large a chance to achieve their actual participation in the governance of society. The indoctrination of the people makes them realize their important role in actual governance and, therefore the existence of a political party in a democratic system becomes inevitable. They enlighten, represent and protect the people in a representative democracy. The values and cherished ideologies of our political leaders are also made known when political parties launch their propagation. It therefore exists as a group organized to achieve the exercise of power by the people in a political system. They serve the community to understand the importance of governance which encourages people to participate in the democratic processes for the better governance of the community at large.
While discussing the importance of political parties and politics, four authors have contributed to this subject in their book "Introduction To Political Science" published by Mcgraw-Hill International Book Company. They are Carlton Clymer Rodee, Carl Quimby Christol, Totton James Anderson and Thomas H. Greene. Analysing the role of political parties in a democracy like the United States of America, they trace out a historical note that the historic roots of a party is founded both in the struggle of the legislature to limit the sovereign prerogative, and in the development of groups within the expanded electorate taking sides in the battle or demanding recognition of their interests. Subsequently each nation has developed its unique party tradition. The party system has been found to be a big contributor to the constitutionally representative government. This brought out the limitation of authority of the absolute sovereign and a historic extension of the suffrage to all adult population.
They have further enunciated that the elusive public is in reality a variety group of economic, social and cultural entity. The individual who is part of the electorate may be in different to the obligations of citizenship or perhaps ill-informed on the issues of the day. A political party constitutes one connecting link between adverse groups in society and members of the electorate attempting to achieve organized political action. The party therefore stimulates interests with setting up of candidates, organization of meetings and entertainment by using all effective medias of communication. They help in selecting campaign issues and project positive programmes for future legislative action by crystallizing opinion and creating a consensus that forms the basis for conducting an election. They also enlist and groom candidates for elective offices and finally to convey the message of their ideas to the electorate (Refer to Chapter 10 of the Book). The aforesaid views have been expressed after sifting standard works on the subject offered by authors like Leon D. Epstein and Maurice Duverger.
Political parties in essence seek to control governance and compete against one another by seeking to influence the attitude and behaviour of people to achieve specific political goals. They facilitate the involvement of the people in government, primary of which is informing the people about various issues affecting the governance of society. They formulate policies and help the people to identify suitable persons to represent them. They activate the implementation of policies and prevent acts that are against the interests of people. They provide a vision usually to promote a common set of principles and values and propagate a collective ideology which is identified with the needs and concern of the people, thus bringing about their direct participation in governance.
These political parties are usually creatures of their cultural environment and the machinery with which they performed their functions is shaped by history, tradition and the electoral process stipulated by the constitutional government. Socialisation and education of the citizenry and translation of their demands into public policy is the direct out come of such organization. They are political guides of the population at large. A democracy nurtures the basic fundamental right of free thought and expression. This is possible only if organizations like political parties are ensured freedom enough to express themselves at levels of participative democratic process. The argument that a rule of majority within the elected municipality or corporation is not contemplated is of no relevance while judging the vires of the impugned rule which is ultra vires for the reasons given hereinabove. To downplay the role of political parties by an unwarranted restriction appears to be an undemocratic approach, that too even without any cogent or rational reason.
There are criticisms of political parties being instruments of enticement, corruption and threat to national unity. To our mind such a criticism cannot be the subject matter of any judicial assessment moreso when our entire country functioning on a democratic pattern acknowledges the existence of a multi party system. In this background, it will be difficult to accept that the political parties, allowing their candidates to contest local self government elections, would be detrimental for the public at large. There does not appear to be any rational nexus with any object sought to be achieved. The reason to restrict the basis of contesting elections on the strength of political parties is therefore vague and obscure. We have not been able to decipher, from the stand taken by the State Government, as to what was the necessity of introducing sub-rule (2) of Rule 4 and what was the object sought to be achieved by such introduction. If the argument of Sri Jaideep Mathur is accepted then the same was introduced only to avoid any violation of the Symbol Allotment Order which could have been achieved otherwise by framing a specific rule instead of restricting elections to be held on the basis of political parties.
There is an argument on behalf of the State that for more than half a century local self governance has continued without elections being held on any party line or political party basis. This may not have happened in this State but judicial notice can be taken of fact that in other States of the country the legislature never felt the need to ban the participation of candidates fielded by political parties in elections of local self government. No material has been placed before us that may even otherwise support the stand of the State that the participation and contest of elections on the basis of political parties would in any way impede the process of election or defeat the object of democracy. In the absence of any such material, the impugned rule appears to be an unnecessary and avoidable surplusage.
Parliament itself has recognized the Role of political parties in local bodies pursuant to the Constitutional amendment introducing Part-IXA in the Constitution of India. The 73rd Amendment which introduced this Chapter has been held to be a forward step to bring about radical changes in our social structure. While dealing with Panchayat Raj Institutions, the Supreme Court in Bhanumati Vs. State of U.P., 2010 AIR SCW 6470 has further noted that the Amendment has given Panchayat Raj Institutions, a constitutional status as a result of which it has become permanent in the Indian Political System as a third Government. The same will be true of Municipalities and Municipal Corporations. Participation of people and choosing the candidates including of a political party which espouses their cause, furthers on social, economic and political reforms. S.R. Bommai Vs. Union of India (supra) has recognised that political parties may operate at the State and National level. The local bodies are essential. They constitute an integral executive to implement the directive principles contained in Part-IV of the Constitution. Article 243R of the Constitution of India provides for the composition of Municipalities, and reads as under:-
"243R. 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;
Elections to the House of People (Lok Sabha) and to the State Assemblies are contested by political parties to whom the Election Commission has reserved a Symbol or allots a Symbol. In the Rajya Sabha or State Councils, elections for a large number of seats are from amongst the members of the Lok Sabha and of the State Assemblies, as the case may be. Candidates are proposed by political parties represented in Parliament/State Legislature for contesting the elections as their representative in the respective House and not as an individual member though individual can also contest. These members of the political parties are subject to the 10th Schedule to the Constitution of India. Elections in a Parliamentary Democracy are its essence. The leader of the largest party is invited to form the Government. Role of the leader of opposition is recognized. Parliamentary whips are recognized. Parliamentary Democracy does not visualise rule by independent members, though on occasions, independents are elected.
Thus, the Constitution itself has recognized the role of political parties in the political process and functioning in our Parliamentary System. Municipal law has made provisions in terms of the mandate of the Constitution whereby, the elected members belonging to political parties, from the area constituting the Municipality or the Municipal Corporation are represented in the local body. Thus, when the Constitution itself has recognized the role of political parties, and they are represented as members of the political parties in the local body, to prevent candidates from contesting on the Symbol of a party and representing that party to which they belong, to our mind, would be against this mandate and spirit of our constitutional philosophy. The allotment of a Symbol to a party has been held to be a bond created between recognized political party and its Symbol. (See Subramanian Swamy Vs. Election Commission of India, (2008) 14 SCC 318). No explanation has been given as to why if the political parties are already represented in the local body as ex officio members by the fact of they being members of State Assembly/State Council and or Lok Sabha/Rajya Sabha, the need to exclude, an individual eligible to contest, from contesting as a member of a political party on the election Symbol of that party, which is to be allotted by the State Election Commission. The conduct of elections commences from the issuance of the notification for holding elections. Every step in the process till the results are declared and orders issued is solely within the jurisdiction of the Election Commission, in terms of law including any order, that it may issue. The law has been explained in A.C. Jose Vs. Sivan Pillai, AIR 1984 SC 921. The allotment or reservation of a Symbol is within the exclusive jurisdiction of the Election Commission and falling within the expression 'superintendence, direction, control and conduct of elections'. See Kanhiya Lal Omer Vs. R.K. Trivedi & Others, AIR 1986 SC 111.
The Scheme of the Act for electing members provides for elections by adult suffrage. The qualification and disqualification are set out. Who can contest are 'persons' and not political parties. To be a member of a political party is neither a qualification or a disqualification. When the Act does not make it a disqualification to be a member of a political party and the allotment of Symbols is within the exclusive jurisdiction of the Election Commission in terms of Rule 27 (1), a rule which indirectly seeks to add a disqualification, would be ultra-vires of Sections 12C and 12D of the Municipalities Act and Sections 24 and 25 of the Municipal Corporations Act.
The rule made must be in consonance with the substantive provisions of the Act. The rule also must be reasonable and not manifestly arbitrary. There is no explanation as to why the allotment of symbol to a political party by passage of time has become manifestly arbitrary or otherwise, as prior to this Rule, candidates were contesting on symbols allotted to them by the political parties, which fact has not been disputed. That development would be better if parties are kept out of the local bodies as canvassed on behalf of the State goes counter to our constitutional philosophy as contained in Part-IX-A of the Constitution. There is no provision by which a political party can contest an election in our present form of Parliamentary Democracy of first past the post. Political parties put up a candidate, an 'individual' who is then allotted a Symbol reserved for that political party or any other Symbol. The State Government in this step in the election process, cannot frame a rule which would directly or indirectly impair the independence of the Election Commission in allotting a Symbol to a person in terms of the rules in force or orders made by the Election Commission. Any attempt to impair the independence of the Election Commission in its power of superintendence, direction, control and conduct of elections must be tested on the anvil of its independent functioning. If we accept that, there is such a power in the delegate under the Act to make a rule under the statute, that will be contrary to Section 13-B of the Municipalities Act and Section 45 of the Municipal Corporations Act.
Having considered the judgments cited at the Bar and the authorities placed before us, we are of the firm opinion that Sub-Rule (2) of Rule 4 of The Uttar Pradesh Municipalities (Election of Members, Corporators, Chairmen and Mayors) Rules, 2010, are unconstitutional and ultra vires the provisions of the powers conferred for the conduct of elections under the Uttar Pradesh Municipalities Act, 1916 and the Uttar Pradesh Municipal Corporation Act, 1959. The impugned Rule is, accordingly, struck down and the writ petitions are allowed.
Dt. 5th May, 2011 Irshad After the judgment was pronounced, the learned Additional Advocate General sought grant of certificate for special leave to appeal before the Supreme Court.
In our opinion, the judgement does not raise any substantial question of law of general public importance and, hence, the request is declined.
05.05.2011 AHA