In Bihar Legislative Council vs. Union of India & Ors. (2017), Supreme Court's bench of 42nd Chief Justice H. L. Dattu and Justices Arun Mishra and Amitava Roy passed a 3-page long interim order dated July 6, 2017, wherein it recorded the additional affidavit of M.K.F. Wilfred, Principal Secretary, Election Commission of India, which stated: “The Election Commission submits that in the event of this Hon'ble Court holding and deciding that the members of the Legislative Council have to retire in proportion of 1/3rd members as per the provisions of Article 172 and the same should apply also to the category of candidates for the present election (category of candidates to be elected by local authorities/panchayats/ municipal council/corporations) to the Legislative Council of Bihar, the Election Commission states that after the elections, the Election Commission shall then categorize the elected members into three categories (i.e. having term of 2,4 and 6 years respectively) by draw of lots in accordance with the decision or direction of this Hon'ble Court.”
The Court's order reads: "In our opinion, the aforesaid suggestion made by the Principal Secretary to the Election Commission of India may be accepted. Accordingly, we stay that portion of the order passed by the Division Bench of the High Court wherein the High Court has directed with the Legislative Council, Bihar shall identify 1/3rd of the 24 seats earmarked for local authorities for a term of two years, another 1/3rd seats, for a term of four years and the remaining 1/3rd, for six years by issuing necessary notification, amendment or clarification, as the case may be, by 30th of June, 2015. The order passed by us today will be subject to the final result of these Special Leave Petitions....”
The case was filed in the Supreme Court on June 26, 2015 and registered on June 27, 2015. The case was tagged with Sunil Kumar Sing vs.Union of India & Ors. (2017), Dinesh Prasad Singh vs. Union of India & Ors. (2017), Election Commission of India vs. Devesh Chandra Thakur & Ors. (2015) and Dr. Dilip Kumar Jaiswal vs. Union of India & Ors. (2017). The records available on Court's website show that the final result of these Special Leave Petitions have not come so far. The website does not record the order dated July 6, 2017 which modified the judgement of the Patna High Court in its record of the proceedings/orders. For 2017, it records the orders of July 17, 2017, May 5, 2017, March 20, 2017 and January 18, 2017 but not the one dated July 6, 2017 although it exists on e Court's website elsewhere. It was posted for hearing and final disposal in the first week of July, 2017 by the Supreme Court's 3-Judge Bench.
In Devesh Chandra Thakur & Anr. vs. The Union of India & Ors. (2015), High Court's Division Bench of Chief Justice L. Narasimha Reddy and Justice Sudhir Singh had delivered a 20-page long judgement dated June 24, 2025. It recorded that the writ petition was filed in public interest, presenting important constitutional and legal issues. It pertained to the elections to the Legislative Council. Therefore, the caution and care with which the matter is required to be undertaken is much more. Since what was presented before the High Court was a purely legal issue, it decided to make an attempt to come out with a solution to the extent possible, in the given circumstances. The Constitution of India provides for bicameral Legislatures in the States. However, it is in the discretion of the concerned States whether or not to have the Legislative Council. Chapter-3 of Part-IV of the Constitution makes this aspect clear. In the State of Bihar, there existed a Legislative Council even before the Constitution came into force. Article-171 of the Constitution is to the effect that the total seats in the Council shall be divided into various categories, namely 1/3rd of the members to be elected by the heads of Municipalities, District Boards or other local authorities, another 1/3rd to be elected by the Legislative Assembly and remaining 1/3rd to be elected by the graduates and teachers etc. In this case, the Court was concerned with the members to be elected by the heads of the local bodies. The term of the members of Legislative Council is almost on par with that of Rajya Sabha, i.e. six years. An important attribute of the Legislative Councils, or, for that matter, Rajya Sabha, is the continuity of the House. Article-172 mandates that there shall not be dissolution of the Council. In the Representation of the People Act, the Parliament made adequate provision for this purpose. Section-156 is to the effect that the Governor shall issue orders to ensure that at the initial stage, the term of 1/3rd of members of each category is two years, next 1/3rd members of such categories is four years and that of the remaining 1/3rd, members six years. The sole objective is to ensure that 1/3rd of the members of every category retire, at the end of two years and fresh members are elected in their place. The exercise referable to Section-156 of the Act was undertaken by the Governor of Bihar through a notification dated June 17, 1953. To determine the members whose term shall be two years, four years or six years, as the case may be, lots were drawn by issuing a notification dated June 20, 1953. After that exercise, a notification, was published by the Legislative Council on July 7, 1953. In the category of local authority constituencies, the term of the following members was determined to be two years:-
1. Kumar Jha
2. Vishnu Shankar
3. Baidyanath Mishra
4. Ram Bahadur Roy
5. Beer Narain Chand
6. Sagar Mohan Pathak
7. Kanta Kumar Lal
8. Shambhunath Roy
The term of the following as four years:-
1. Brij Raj Bahadur
2. Mahenth Mahadevanand Giri
3. Sheenath Pd.
4. Mathura Pd. Singh
5. Brajendra Bahadur
6. Kumar Kalyan Lal
7. Mayanand Thakur
8. Ram Prakash Lal
and for the remaining eight candidates, the term was fixed as six years.
It is important to note that the constituency, from which each candidate is elected, is chronicled from time to time. It is axiomatic that the elections are held on completion of term of two years or the four years, as the case may be, and the same pattern continued. A sort of deadlock came into existence in the year 1976 in view of the fact that the elections to the local bodies were not conducted at all. Therefore, the biennial elections were not held to elect the members of the Council, from that category. The same hiatus continued till the year 2003, by which time, the elections to the local bodies were held. All the 24 seats of the Council, in the category of local bodies remained vacant by that time. Contrary to the mandate under the Constitution as well as the Representation of People Act, elections to all the 24 seats were held at a time, in the year 2003. The term of all the 24 candidates expired in the year 2009. Once again elections were held en bloc to all the 24 seats in that year. The term of the candidates so elected was going to expire in July, 2015. Complaining that serious constitutional and statutory violation was taking place on account of the holding of elections to all the 24 seats in the Council at a time, C.W.J.C. No.7533 of 2009 was filed before the High Court by way of Public Interest Litigation. On being convinced that the illegality and violation was taking place, the High Court issued notice to the Attorney General. The latter, in turn, opined that the situation can be salvaged only by amending Section-156 of the Act. Taking note of the same, the writ petition was closed requiring the Election Commission to address a letter to the Government of India to consider the feasibility of taking steps for amending Section-156 of the Act. The matter did not move further in any manner, whatever, ever since then.
The High Court's judgement reads: "After taking note of the fact that a serious violation of law has taken place and is continuing, we gave indication to the Election Commission as to how the situation can be salvaged; in the following terms:- “…..We are of the view that it is not difficult to meet the extraordinary situation and to bring about compliance with the mandate under Article-172(2) read with Section 156 of the Representation of People Act. What one has to do is that the election, which is scheduled to take place in July for the 24 seats of local bodies, my be conducted, but in such a way that the term of 1/3rd of such members, i.e. 8, shall be for two years, another 1/3rd for four years and the remaining for the full term of six years. Once this is done, total compliance with the provisions of law would emerge. We are also of the prima facie view that this course would not be conflict with any provisions of law and, on the other hand, it would bring about constitutionality.”
The High Court closed for vacation from May 24, 2015 onwards. A Press Note in relation to the election on 24 seats of Legislative categories was issued on June 4, 2015. This was followed by a notification on June 11, 2015. The judgement reads: "It does not appear that the order passed by this Court was taken note of and no classification of terms was indicated. The petitioners filed an application to amend the prayer in the writ petition, to bring within its fold the present elections also. The petitioners plead that on account of the holding of elections for all the 24 seats for full term at a time, the mandate contained in Chapter-3 of Part-VI of the Constitution as well as Section-156 of the Act is violated and that in spite of the directions issued by this Court on earlier occasion no tangible steps were taken....The Election Commission filed a detailed counter affidavit. It is admitted that the elections are being conducted for the full term, of 6 years for all the 24 seats of the Council under the local bodies category and for correction of the anomaly in this regard, a letter has been addressed to the Union of India, Ministry of Law and Justice, to consider the feasibility of causing amendment to Section-156 of the Act." The At refers to the Representation of the People Act.
From the provisions of Article-172 of the Constitution and Section-156 of the Representation of the People Act, it is/was clear that the situation arose not on account of any ambiguity in law, but on account of failure of the machinery to conduct the elections at the relevant point of time. When extraordinary situation emerged on account of certain lapses or failures, it was for the Court to rectify them through the process of interpretation, instead of requiring the amendment to the provision of law.
Article-172 of the Constitution of India reads:-“172. Duration of State Legislatures.- (1) Every Legislative Assembly of every State, unless sooner dissolved, shall continue for [five years] from the date appointed for its first meeting and no longer and the expiration of the said period of [five years] shall operate as a dissolution of the Assembly: Provided that the said period may, while a Proclamation of Emergency is in operation, be extended by Parliament by law for a period not exceeding one year at a time and not extending in any case beyond a period of six to operate. (2) The Legislative Council of a State shall not be subject to dissolution, but as nearly as possible one-third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law.” From a perusal of Clause-2 thereof it becomes clear that the Council shall be a continuous body and on expiry of every second year, 1/3rd of members shall be elected in accordance with the provisions made by the Parliament in that behalf. Section-156 of the Act serves this purpose. It reads:-“156. Term of office of members of State Legislative Councils.—(1) The term of office of a member of the Legislative Council of a State, other than a member chosen to fill a casual vacancy, shall be six years, but upon the first constitution of the Council the Governor shall, after consultation with the Election Commission, make by order such provision as he thinks fit for curtailing the term of office of some of the members then chosen in order that, as nearly as may be, one-third of the members holding seats of each class shall retire in every second year thereafter. (2) A member chosen to fill a casual vacancy shall be chosen to serve for the remainder of his predecessor's term of office.”
The High Court observed: "A close analysis of Section-156 of the Act would give an indication that (a) the term of a member of a Legislative Council in the ordinary course shall be six years; (b) the Governor is vested with the power to fix the terms of the members in such a way that 1/3 hold the office for two years, another 1/3rd for four years and remaining 1/3rd for six years at the initial stage and (c) the objective of fixing such differential terms is to ensure that the Council functions as a continuous body with the retirement of 1/3rd of the members and induction of new member, on expiry of every two years. Though the step that is required to be taken by the Governor under Section-156 of the Act may appear to be an initial one, it would have the cascading effect throughout the life of the Council and that constitutes the basis to ensure continuity. It is difficult to accept the contention that once the Governor exercises his power under Section-156 of the Act at the initial stage, it comes to an end and thereafter it ceases to have any relevance at all. If one needs an example to demonstrate that such an approach would defeat the very scheme contemplated under the Constitution of India, the present case provides one. On account of the break that occurred in the year 1976, all the 24 seats earmarked for local bodies category became vacant, in a phased manner. If the situation became congenial for holding elections for local bodies in the year 2003, the Election Commission as well as the Council that the same pattern in which the vacancies arose, is revived. Instead, they chose to fill all the seats for the full term of 6 years, at a time. This resulted in defeating of the scheme of Section-156 of the Act or, for that matter, Article-172(2) of the Constitution. On the one hand, the seats in respect of other categories such as those to be elected by M.L.As, teachers and graduates were being filled to the extent of 1/3rd on expiry of every two years, and on the other hand, seats that were for local bodies that they were filled en bloc on expiry of every six years. It is brought to our notice that even as regards the category seats by way of nomination by the Governor, the same pattern is continuing.
The Court noted: "All the respondents are in agreement on the fact that there is a clear violation of law on account of the en bloc filling all the seats at a time. What, however, they plead is that an amendment to Section-156 of the Act is needed to salvage the situation. We find it difficult to accept this submission. The occasion to amend the law would arise if only the implementation thereof has led to anomalous situations. The law contained in Article 172 of Constitution and Section-156 of the Act is clear in this behalf extraordinary situation has emerged only on account of the lapse of the State Government to conduct elections to local bodies at the relevant point of time. That, in turn, disabled the Election Commission of India to conduct elections to the seats in the Legislative Council earmarked for local bodies once in every two years. When the situation itself emerged on account of a human or institutional error or non-functioning, it is totally impermissible to attribute any disability to the law itself. If someone has brought into existence a situation, it is for him to take necessary steps, to accord with the law once again, instead of blaming the law itself. We have already mentioned that neither the Election Commission nor the Legislative Council looked into the law as to whether it was permissible for them to hold elections en bloc for all the 24 seats at a time. When they did that without amendment, they cannot take that plea to bring about orderliness and compliance. The contention referable to Article-329 of the Constitution of India is advanced by the State Government. We are conscious of the law laid down in this behalf, and in fact, the text of the Article, itself is clear. The total prohibition ordained by that provision is that the Court shall not a) interfere with the process of delineation of constituencies and b) once an election process commences, it shall not interdict the same, much less it can interfere with the result of the election. The only remedy provided to the affected candidates is to file an election petition. In the instant case, there is no question of touching any delineation of constituencies. Secondly, we do not intend to interfere with the process of election even in the slightest manner. Notwithstanding the fact that the election notification was issued even while the writ petition, and almost ignoring the order dated 21.5.2015, we do not propose to meddle with the election process even remotely. The election process has to go on as per schedule in every minor aspect. The only difference would be that out of 24 seats for which elections are being held, a division into three sets has to be made and the term of 1/3rd members each must be restricted to two years, four years and six years respectively. For this purpose, neither it is necessary to issue a fresh notification nor to cancel the one which was already issued.
It added: "It is true that the division of the seats that will have limited terms has taken place in the year 1953 by drawing of lots, under the order of the Governor and such a step is required to be taken only at the initial stage. We would have identified those constituencies by referring to the constituencies held by the respective members who are shown in Annexure-3 of the writ petition. However, certain important changes have taken place State of Jharkhand was carved out from the State of Bihar and several districts which were large in the year 1953 have since been divided and sub-divided. Therefore, we can not pick up a readily available list of constituencies, in this behalf. The Legislative Council as well as the Election Commission can certainly take up the work of identifying the constituencies which were held by the respective members mentioned in Annexure-3 to the writ petition as a result of drawing of lots in the year 1953 on the directions issued by the Governor in exercise of powers under Section-156 of the Act. If, for any reason, that exercise is not possible, they may take recourse to drawal of lots or determine the seats on the basis of authenticated record, available with the House. This would not seriously impair the rights of any candidates. The reason is that a candidate who is elected for a term of two years can contest once again from the same constituency and if he has gained the confidence of the voters, there is no reason why he cannot be re-elected for the remaining part of the term. Same is the case with the members elected four years."
Earlier in Devesh Chandra Thakur & Anr. vs. The Union of India & Ors. (2015), High Court's Division Bench had passed a 3-page long order dated May 21, 2015, wherein it noted that the petition pointed out a typical and a serious constitutional issue. Wherever the Legislature of the State is bicameral in nature, elections are to be held to the Legislative Council in such a way that 1/3rd of the members retire on completion of two years each, on completion of six years’ term and there is continuity. Article-172(2) provides for this. A clear distinction is drawn between dissolution of the assembly, on one hand, and providing continuity of Council, on the other hand. The Constitution makers were so clear in their mind that they provided for retirement of 1/3rd members on expiration of terms of six years in each category mentioned in Clauses (a) to (e) of Article-171(3) of the Constitution. Under Clause (a) of Article-171(3), 1/3rd seats of Council are to be filled through election by the local bodies in the State. For one reason or the other, elections to that particular category were not held in the State of Bihar from 1978 onwards. Naturally, all the 24 seats in the Council belonging to that category remained vacant till the year 2002. Thereafter, all the 24 seats were filled, at a time. The result is that the term of all the 24 members of Council under that category is expiring each year and there is induction of completely new set of members of Council after every six years. This is in clear violation of Article-272(2). On an earlier occasion, a Public Interest Litigation was initiated and the High Court had desired that the patent violation of the Constitutional provisions be addressed by the concerned authorities. However, nothing tangible had emerged. The second petitioner was Baidyanath Prasad rom Dumri, Sitamarhi. The first petitioner was also from Sitamarhi.
The High Court's order reads: "We are of the view that it is not difficult to meet the extraordinary situation and to bring about compliance with the mandate under Article-172(2) read with Section 156 of the Representation of People Act. What one has to do is that the election, which is scheduled to take place in July for the 24 seats of local bodies such a way that the term of 1/3rd of such members, i.e. 8, shall be for two years, another 1/3rd for four years and the remaining for the full term of six years. Once this is done, total compliance with the provisions of law would emerge. We are also of the prima facie view that this course would not be conflict with any provisions of law and, on the other hand, it would bring about constitutionality."
The High Court's judgement had concluded: "In the entire process, our endeavour is only to ensure that the High Court does not remain oblivious to the patent illegality that is continuing for the past more than a decade and endeavour is only to ensure the compliance with the provisions of the Constitution of India and the law made by the Parliament. Even if a second view is possible on this issue, a beginning has to be made so that an authoritative pronouncement comes in one form or the other. The timing of adjudication of matter of this nature also becomes important. The elections are scheduled to take place on 7th July, 2015. Once elections take place, the protection for the members under the first part of Section-156 of the Act comes into play and there is no way, that the term can be curtailed to less than six years. The appropriate stage is the one, obtaining as of now. For the foregoing reasons, we dispose of the writ petition directing that the Election Commission, in consultation with the Legislative Council, Bihar shall identify 1/3rd of the 24 seats earmarked for local authorities for a term of two years, another 1/3rd seats, for a term of four years and the remaining 1/3rd, for six years by issuing necessary notification, amendment or clarification, as the case may be, by 30th of June, 2015. The Election Programme shall remain untouched. Learned Principal Additional Advocate General made an oral request for leave to file Appeal in the Supreme Court. We are not inclined to grant the leave for two reasons. The first is that the State Government has hardly a role to play in this matter. The second is that except that we have directed the compliance with the provisions of law, we did not lay down any new principle of law nor did we strike down any notification, not to speak of any provision of law. Therefore, we reject the prayer for leave."
The judgement was authored by Chief Justice Narasimha Reddy. Supreme Court modified this judgement in its interim order dated July 6, 2017 subject to final outcome. But the final outcome is awaited even after 8 years. The records available in public domain show that Supreme Court is yet to finalize its final order with regard to its constitutionality although 10 chief justices have retired since the bench headed by the 42nd chief justice had underlined that its interim order was "subject to the final result of these Special Leave Petitions".
No comments:
Post a Comment