The SC on Aug 20, 2020 {Sardar Bahginder Singh vs Sardar Manjieeth Singh Jagan Singh and Ors.} held that the nomination and election of members under Section 6 of the Nanded Sikh Gurudwara Sachkhand Shri Hazur Apchalnagar Sahib Act 1956 has to be made in the manner prescribed by the rules made by the Government under the Act, including the bye-laws made by the statutory board constituted under the provisions of Chapter II.
It was further observed by the SC Bench, comprising of Justice D Y Chandrachud & K M Joseph, that the High Court was justified in disapproving of the process that was followed by the State Government but for the simple reason that the nominations were not made by the Diwan. It was held that Multiple claims were made in the letters submitted to the State Government. It was held that the High Court was correct in its interpretation of the statute when it observed that it was not open to the State Government to arrogate the power of nomination to itself or to usurp the powers of the Diwan. It was held that the statute has entrusted the authority to make a nomination under Section 6(1)(viii) to the Diwan. It was held that the Diwan comprises of the collective body of all members together to whom the power to make a nomination is entrusted.
In the present case, the SC was considering the dispute qua nomination of four members of the Diwan on the statutory Board constituted in terms of the Section 5 of the Nanded Sikh Gurudwara Sachkhand Shri Hazur Apchalnagar Sahib Act 1956.
The SC concluded that in authorising the Sachkhand Hazuri Khalsa Diwan, Nanded to nominate four members, Section 6(1)(viii) entrusts that authority to the collective body of members of the Diwan which is entitled to select the four individuals to be nominated to the statutory Board. It was directed by the SC that the process must be initiated forthwith and concluded within a period of three months from the date of this judgment. The appeal was accordingly disposed of.
]]>The SC on July 23, 2020 {THE HON’BLE SPEAKER, RAJASTHAN LEGISLATIVE ASSEMBLY vs. PRITHVIRAJ MEENA & ORS.} held that as the High Court has already heard the matter after prolonged arguments and reserved the order, it is not staying the passing of the order, however, whatever order is passed, shall be ultimately subject to the outcome of this petition.
The SC Bench, comprising of Justice Arun Mishra, Justice B.R. Gavai & Justice Krishna Murari further held that the case requires prolonged hearing so as to decide the question of jurisdiction. Therefore, listed the matter for 27/07/2020.
In the present case, a prayer is made that the High Court should not pass an order on which it has heard the matter and reserved the order i.e. regarding validity of show cause notice(s) issued for disqualification to rebel MLA(s) of Rajasthan by the Speaker.
]]>The SC on June 19, 2020 {LAXMI SINGH AND OTHERS vs REKHA SINGH AND OTHERS} held that no witness or other person shall be required to state for whom he was voted in an election. It was held that elucidating the importance of the provision, secrecy of ballot was appropriately styled as a postulate and keystone in the arch of constitutional democracy as the electorate or the voter should be absolutely free in exercise of franchise untrammelled by any constraints, including a constraint as to disclosure.
The SC Bench, comprising of Justice N.V. Ramana, Justice Sanjiv Khanna & Justice Krishna Murari observed that it is the policy of law to protect the right of voters to secrecy of the ballot, albeit this right is something which can be claimed only by the voter himself against unwarranted disclosure. It was observed that Section 94 of the RP Act enacts a privilege in favour of the voter in that no one can compel him to disclose for whom she had voted but the privilege ends when the voter decides to waive the privilege and instead volunteers to disclose as to whom she had voted.
It was observed that one of the fundamental principles of election law pertains to the maintenance of free and fair elections, ensuring the purity of elections. It was held that the principle of secrecy of ballots is an important postulate of constitutional democracy whose aim is the achievement of this goal.
The SC held that question of whether the waiver of secrecy by individual voters is allowable during the election process, in a circumstances such as the present, where the Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 and the 1966 Rules mandate that voting in a no confidence motion would take place by secret ballot requires detailed argumentation and analysis.
The SC, however, without going into the said question, held that ends of justice will be met if the Motion dated 1st October 2018 is put to revote at a meeting by way of secret ballot with the District Judge, Allahabad himself or his nominee Additional District Judge, Allahabad, acting as the Presiding Officer on a date and time to be fixed by the District Judge, which shall not be later than two months. It was held this would be a just and fair direction in the factual matrix of the present case given the respective contentions and stand of the parties.
The appeals were accordingly disposed of by the SC in the above terms, leaving the question of law open.
]]>The SC on April 13, 2020 {Shivraj Singh Chouhan & Ors. v. Speaker Madhya Pradesh Legislative Assembly & Ors.} held that the question of whether the Council of Ministers in an ongoing legislative assembly commands the confidence of the house is a matter which has to been determined only on the floor of the house and that it is not for the Governor to determine the issue within his subjective satisfaction. The Court held that where the Governor has reasons to believe that the incumbent government does not possess the support of the majority in the legislative assembly, the correct course of action would be for the Governor to call upon the Chief Minister to face the assembly and to establish the majority of the incumbent government within the shortest possible time; and an exception to the invariable rule of testing whether the government has the assembly's confidence on the floor of the house is envisaged only in extraordinary situations where because of the existence of "all pervasive violence," a free vote is not possible in the House.
It was further held by the SC Bench, comprising of Justice D Y Chandrachud & Justice Hemant Gupta, that as the ultimate arbiter of the constitutional text, the Supreme Court is tasked with ensuring that each branch of government operates within the limits placed upon it by the Constitution, including in the realm of democratic politics. It was held that the present controversy arises out of a dispute between the Governor, as the titular head of the executive within the State of Madhya Pradesh, the Chief Minister, the de-facto head of the executive within the state and the Speaker of the Madhya Pradesh Legislative Assembly, who has supervisory jurisdiction over the legislative branch of the state.
Further held that merely because the prima facie determination made by the Governor was of the political support enjoyed by the incumbent government or the action demanded was a political process (the floor test) is not a reason for the Court not to hear the matter. The Court held that there is no doubt that the present case is suitable for judicial determination by the Court. It was held that as a matter of constitutional principle, the state legislature comprises of the Governor and the legislative assembly (and in the case of a bicameral legislature, this also includes the legislative council).
The Court held that the discretionary powers ultimately vested in the Governor under Article 163 of the Constitution represent an exception to the general rule of aid and advice. It was held that the Constitution embodies the principle of aid and advice and in doing so, emphasizes that the Governor is a titular head of state, while the real authority and power vests in the Council of Ministers headed by the Chief Minister. It was held that the Council of Ministers is collectively responsible to the legislative assembly of the state.
The present controversy raised before the SC two separate, but intertwined constitutional questions. First, whether the Governor is entrusted with the authority to call for a trust vote in the course of a running assembly, and second whether the Governor exercised this authority correctly. If the Governor does not possess the authority, the action of calling for an immediate floor test is ultra vires and unconstitutional. Alternatively, if the Governor does possess the authority to call for a floor test, it was held that the Court must determine the contours of such power and answer the question of whether the Governor acted within those contours.
It was held that the primary basis on which the accountability of the Council of Ministers is exacted towards the legislature is through the relationship which the Constitution envisions between the government and the elected body of the legislature. It was also held that the Council of Ministers is drawn from the legislative body, membership of the Council of Ministers being dependent (beyond a term of six months) on membership of the House. Further held, but apart from the principle that a member of the Council of Ministers must be a Member of the legislature, accountability of the executive to the legislature is exacted by the ultimate authority which was conferred on the legislature to express a lack of confidence in the Council of Ministers. It was held by the SC that in envisioning the role of the Governor as a constitutional statesman, care must be taken in the course of interpretation to ensure that the balance of power which was envisaged by the Constitution between the executive and the legislature is maintained by the gubernatorial office.
The heart of the dispute in the present case before the SC was whether the Governor was acting within the bounds of his constitutional authority in ordering a trust vote to be conducted on the floor of the Madhya Pradesh Legislative Assembly on 16 March 2020. In the present case, twenty-two Members belonging to the INC tendered their 28 resignations on 10 March 2020. Alleging the complicity of the BJP in engineering these resignations, the Chief Minister of Madhya Pradesh in his letter to the Governor dated 13 March 2020 stated that as a responsible leader he would invite and would welcome a floor test of his government in the forthcoming Budget Session of the Legislative Assembly notified to commence on 16 March 2020. But there was no holding of floor test, rather house was adjourned.
It was held by the SC that the power under Article 174 of the Constitution to summon the House and to prorogue it is one which is exercised by the Governor on the aid and advice of the Council of Ministers. The Court held but in a situation where the Governor has reasons to believe that the Council of Ministers headed by the Chief Minister has lost the confidence of the House, constitutional propriety requires that the issue be resolved by calling for a floor test. It was held that the Governor in calling for a floor test cannot be construed to have acted beyond the bounds of constitutional authority.
It was held that the powers which are entrusted to constitutional functionaries are not beyond the pale of judicial review. It was held that where the exercise of the discretion by the Governor to call a floor test is challenged before the court, it is not immune from judicial review.
The SC held that the Chief Minister, adverting to the turmoil in the state, addressed a communication to the Governor on 13 March 2020 stating that the convening of the floor test would be a sure basis for resolving the conundrum. It was held that this is a strong indication that the Chief Minister himself was of the opinion that the situation in the state had cast his government‘s majority in doubt. It was held, however, upon the convening of the Legislative Assembly, no floor test was conducted, and the House was adjourned till 26 March 2020. The Court held that these facts form the basis on which the Governor advised that a floor test be conducted. It was held that based on the resignation of six ministers of the incumbent government (accepted by the Speaker), the purported resignation of sixteen more Members belonging to the INC, and the refusal of the Chief Minister to conduct a floor test despite the House having been convened on 16 March 2020, the exercise of power by the Governor to convene a floor test cannot be regarded as constitutionally improper.
The SC held that in the circumstances as they have emerged in this case, the exercise of authority by the Governor was based on circumstances which were legitimate to the purpose of ensuring that the norm of collective responsibility is duly preserved. It was held that there existed no extraordinary circumstances for the Governor to determine that a trust vote was not the appropriate course of action on 16 March 2020.
It was held by the SC that it is with a view to obviate illegitimate and unseemly political bargaining in the quest for political power that the Supreme Court has consistently insisted upon the convening of a trust vote at the earliest date. Some of those decisions were also summarized in a tabulated statement, in this judgment by the Court.
The Court observed that the spectacle of rival political parties whisking away their political flock to safe destinations does little credit to the state of our democratic politics. It was held that it is an unfortunate reflection on the confidence which political parties hold in their own constituents and a reflection of what happens in the real world of politics. It was held that political bargaining, or horse-trading, as it noticed, is now an oft repeated usage in legal precedents. It was held that Poaching is an expression which was bandied about on both sides of the debate in the present case. It was held that it is best that courts maintain an arm's length from the sordid tales of political life. It was also held that in defining constitutional principle, however, the Court must be conscious of the position on the ground and an effort has to be made to the extent possible to ensure that democratic values prevail.
The SC concluded that challenge to the communication of the Governor must fail for the reasons in view of aforesaid. Accordingly, the assail to power of the Governor to Call for Trust Vote in running assembly was negated by the SC.
]]>Justice Ashok Bhushan & Justice M. R. Shah
The SC on March 19, 2020 {RAM CHANDRA PRASAD SINGH v. SHARAD YADAV} held that the disqualification is incurred by member of the House as soon as he has voluntarily given up his membership of political party. It was held that decision by the Speaker taken at a subsequent point of time cannot and does not postpone his incurring of disqualification by the act of the legislature. It was further held that decision of the Speaker that a member is disqualified relates back to the date of the disqualifying action complained of.
It was held that the facts and sequence of the events on the basis of which Hon’ble Chairman came to the conclusion that a person has incurred disqualification under paragraph 2(1)(a) of the Tenth Schedule are all facts, which had occurred prior to adjudication by the Hon’ble Chairman. In the facts of the present case, it was held that the Chairman of Rajya Sabha has passed the order on 04.12.2019 on the claim of the appellant praying for disqualification as noticed above. It was held that the foundation of order of the Chairman are the facts and events, which took place after 26.07.2017. It was held that the petition having been filed by the appellant on 02.09.2017, petition has to be treated to be founded on facts and events, which took place on or before 02.09.2017.
Further held that additional evidence, which is sought to be brought on record of the writ petition was not the basis for seeking disqualification of the respondent, hence, there is no error in the order of the High Court rejecting the application. It was held that in a writ petition under Article 226 subsequent events can be taken note of for varied purposes. It was held that an event or a conduct of a person even though subsequent to passing of an order of Speaker or Chairman ordinarily may not be relevant for determining the validity of the order of the Speaker or Chairman but in a case where subsequent event or conduct of member is relevant with respect to state of affairs as pertaining to the time when member has incurred disqualification, that subsequent events can be taken into consideration by the High Court in exercise of its jurisdiction under Article 226.
In view of the foregoing conclusions, the Supreme Court upheld the order of the High Court and dismissed the appeal.
In the present case, the appeal has been filed against the Interlocutory Order passed by the Delhi High Court in application filed by the appellant in Writ Petition. By the said application, the appellant sought permission to submit additional documents and place material on record which had been rejected by the High Court. The said rejection was upheld by the Supreme Court.
]]>Justice Ashok Bhushan & Justice Navin Sinha
The SC on March 19, 2020 {BENEDICT DENIS KINNY v. TULIP BRIAN MIRANDA & ORS.} held that the power under Article 226 of the Constitution overrides any contrary provision in a Statute and the power of the High Court under Article 226 cannot be taken away or abridged by any contrary provision in a Statute.
In earlier case, Justice R.F. Nariman delivered a concurring opinion and in his judgment in Asian Resurfacing of Road Agency Private Limited and Another Vs. Central Bureau of Investigation, (2018) 16 SCC 299 after extracting Section 19 of Prevention of Corruption Act, 1988 held that Section 19(3)(c) cannot be read as a ban on the maintainability of a petition before a High Court. In paragraph 52 and 54, following has been laid down:-
“52. The question as to whether the inherent power of a High Court would be available to stay a trial under the Act necessarily leads us to an inquiry as to whether such inherent power sounds in constitutional, as opposed to statutory law. First and foremost, it must be appreciated that the High Courts are established by the Constitution and are courts of record which will have all powers of such courts, including the power to punish contempt of themselves (see Article 215). The High Court, being a superior court of record, is entitled to consider questions regarding its own jurisdiction when raised before it. In an instructive passage by a Constitution Bench of this Court in Powers, Privileges and Immunities of State Legislatures, In re, Special Reference No. 1 of 1964, Gajendragadkar, C.J. held: (SCR p. 499 : AIR p. 789, para 138)
“138. Besides, in the case of a superior Court of Record, it is for the court to consider whether any matter falls within its jurisdiction or not. Unlike a Court of limited jurisdiction, the superior court is entitled to determine for itself questions about its own jurisdiction. “Prima facie”, says Halsbury, ‘no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court’ [Halsbury’s Laws of England, Vol. 9, p. 349].”
54. It is thus clear that the inherent power of a court set up by the Constitution is a power that inheres in such court because it is a superior court of record, and not because it is conferred by the Code of Criminal Procedure. This is a power vested by the Constitution itself, inter alia, under Article 215 as aforestated. Also, as such High Courts have the power, nay, the duty to protect the fundamental rights of citizens under Article 226 of the Constitution, the inherent power to do justice in cases involving the liberty of the citizen would also sound in Article 21 of the Constitution. This being the constitutional position, it is clear that Section 19(3)(c) cannot be read as a ban on the maintainability of a petition filed before the High Court under Section 482 of the Code of Criminal Procedure, the non obstante clause in Section 19(3) applying only to the Code of Criminal Procedure……………”
It was held by the SC that the reliance of learned counsel for the appellant on the judgment in the case of The State of Orissa Vs. Madan Gopal Rungta, 1952 SCR 28: AIR 1952 SC 12 that interim relief can be granted only in aid of and as ancillary to the main relief, does not support the case of the appellant. It was held that in the present case, the interim relief was granted by the High Court, which was in aid of and ancillary to the main relief, which could be granted to the appellant at the time of determination of his rights.
It was also held that the power of judicial review vested in the High Courts under Article 226 and the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution and is basic structure of our Constitution. It was held that the jurisdiction under Article 226 is original, extraordinary and discretionary. It was also held that the look out of the High Court is to see whether injustice has resulted on account of any decision of a constitutional authority, a tribunal, a statutory authority or an authority within meaning of Article 12 of the Constitution.
It was further held that the Courts are guardians of the rights and liberties of the citizen and they shall fail in their responsibility if they abdicate their solemn duty towards the citizens. It was held that the scope of Article 226 is very wide and can be used to remedy injustice wherever it is found.
It was held that the power under Article 226 of the Constitution overrides any contrary provision in a Statute and the power of the High Court under Article 226 cannot be taken away or abridged by any contrary provision in a Statute.
It was also held that when a citizen has right to judicial review against any decision of statutory authority, the High Court in exercise of judicial review had every jurisdiction to maintain the status quo so as to by lapse of time, the petition may not be infructuous. It was held that the interim order can always be passed by a High Court in exercise of writ jurisdiction to maintain the status quo in aid of the relief claimed so that at the time of final decision of the writ petition, the relief may not become infructuous.
It was held that it is true that requirement of submission of Caste Validity Certificate within a period of one year under Section 5B of Mumbai Municipal Corporation Act is mandatory requirement but in the facts of the case, before the expiry of the period of six month, the Caste Scrutiny Committee had illegally rejected the claim necessitating filing of writ petition by aggrieved persons in which writ petition the interim relief was granted by the High Court. It was held that the power of the High Court to grant an interim relief in appropriate case cannot be held to be limited only for a period of one year, which was period envisaged in Section 5B for submission of the Caste Validity Certificate. It was held that no such fetter on the power of the High Court can be read by virtue of provision of Section 5B.
It was ultimately held that Section 5B of the Mumbai Municipal Corporation Act does not oust the jurisdiction of High Court under Article 226 of the Constitution.
In the facts of the present case, the deeming fiction under Section 5B of Mumbai Municipal Corporation Act i.e. as to retrospective termination of the election, whether could not come in operation due to the interim order passed by the High Court was the short question before the SC. And the other issue was whether the jurisdiction of the High Court under Article 226 of the Constitution of India is ousted due to statutory Scheme of Section 5B of the Mumbai Municipal Corporation Act?
Both the said questions were answered in favour of Writ Petitioner before the HC by the SC as aforesaid - while sustaining the judgment of the HC. And the appeal was dismissed by the SC.
]]>Justice Hemant Gupta, Justice A M Khanwilkar and Justice Dinesh Maheshwari
The SC {LAXMIBAI v. THE COLLECTOR, NANDED & ORS.} holds that the remedy of an aggrieved person accepting or rejecting nomination of a candidate is by way of an election petition in view of the bar created under Section 15A of the 1959 Act. The said Act is a complete code providing machinery for redressal to the grievances pertaining to election as contained in Section 15 of the 1959 Act. It was held that the High Court though exercises extraordinary jurisdiction under Article 226 of the Constitution of India but such jurisdiction is discretionary in nature and may not be exercised in view of the fact that an efficacious alternative remedy is available and more so exercise restraint in terms of Article 243-O of the Constitution of India. Further held once alternate machinery is provided by the statute, the recourse to writ jurisdiction is not an appropriate remedy. It is a prudent discretion to be exercised by the High Court not to interfere in the election matters, especially after declaration of the results of the elections but relegate the parties to the remedy contemplated by the statute.
In the present case, the writ petition was filed by the appellant against an order of disqualification under Section 14B of the Maharashtra Village Panchayats Act, 1959 on account of non-submission of election expenses within the period prescribed.
The SC held that the writ petition should not have been entertained by the High Court. However, the order of the High Court that the appellant has not furnished the election expenses incurred on the date of election was not disturbed.
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