CONSTITUTIONAL OBLIGATION OF STATES TO HOLD PERIODIC MUNICIPAL ELECTIONS – A SPECIAL REFERENCE TO STATE OF HARYANA

  

By

Amit Jhanji

Advocate, Punjab and Haryana High Court, Chandigarh.

 

 

Municipal Government is often known as Government at the doorstep of people, being accessible and also satisfying the local needs of the population.  It is against that background that the two amendments i.e 73rd and 74th Constitutional Amendments Act, 1992 mark a watershed in the evolution of local Governments in India  by insertion of Part IX [1] and Part IXA[2] in the Constitution of India.  It is only after the said amendments that for the first time, the Panchayati Raj institution in rural India and Municipalities in Urban India have been acceded constitutional status by virtue of these two amendments and have been raised to the status of Government like the Union Government and State Governments.

 

Article 243-U clearly states that the duration of municipalities shall be for a period of 5 years from the date appointed for its first meeting and no longer. It has been further provided that where the an election to constitute a municipality shall be completed before expiry of its duration specified in clause (1) or before the expiry of a period of six months from the date of its dissolution.

 

In line with the constitutional amendment, the respective State Governments,also made provision in law relating to the municipalities by either amending their old Acts or by promulgating new Acts.  State of Haryana enacted the Haryana Municipal Corporation Act, 1994 vide Haryana Act No. 16 of 1994.   As per section 4 of the Haryana Municipal Corporation Act initially it was provided that the first election of the corporation would be held within a period of six months after the commencement of the Act.  Subsequently, section 4(4) was amended so as to extend the period of holding the elections from six months to one year.  However it was amended vide amendment dated 10.10.2008 for a period of one year.  It was again amended vide Amendment Act No. 22 of 2009 dated 17.9.2009 from one year to two years.  Vide Haryana Act No. 8 of 2011 dated 18.4.2011, it was again amended from two years to three years.  Vide Haryana Act No. 2 of 2013 dated 2.4.2013, it was again amended from three years to three years and three months and subsequently vide Haryana Act No. 28 of 2018 dated 4.10.2018, the period was amended from three years three months to four years.

 

The above amendments made by State of Haryana so as to extend the period of the administrator for the purpose of running and managing the municipalities has been deprecated by the constitutional founders whose purpose for bringing about the amendment in the constitution by virtue of 73rd and 74th amendments was to ensure holding of timely elections. 

 

One such controversy arose in the case of State of Maharashtra and others versus Jalgaon Municipal Council[3], wherein, the Hon’ble Supreme Court while interpreting the provisions of part IXA[4] of the constitution pertaining to municipalities viz-a-viz the provisions of Bombay Provincial Corporations Act, 1949 held, “the law does not permit holding of an office as an Administrator by any officer/officers beyond the first meeting of the corporation or a period of six months from the date of specification of an area as a larger urban area.  Thus, the maximum period for which an administrator may be in office shall be six months and within this much period the State Government and the State Election Commission shall positively bring the Municipal Corporation in existence so as to take over the administration from the Administrator.”

 

Inspite of the above interpretation by the Hon’ble Supreme Court with regard to the holding of elections especially with regard to municipalities, State of Haryana and also the State Election Commission have not been consistent enough in holding the elections of municipalities on regular intervals as envisaged by the 74th amendment.  The above mentioned amendments made by State of Haryana in the Haryana Municipal Corporation Act, 1994 clearly spells out the intention of the State Government to keep the municipality within the power of the executive rather than the people for which the requisite amendment was made in the Constitution of India.  With regard to the holding of regular elections, the constitution bench of Hon’ble Supreme Court in the case of KishansingTomar Versus Municipal Corporation of the City of Ahmedabad and others[5] have clearly held that the constitutional mandate is that the election to the municipalities shall be completed before the expiry of five years period stipulated in clause (1) of Article 243-U and in case of dissolution, the new body shall be constituted before the expiration of a period of six months and the elections have to be conducted in such a manner.  The Hon’ble Supreme Court further went on to hold that it is incumbent upon the Election Commission and other authorities to carry out the mandate of the constitution and to see that a new municipality is constituted in time and elections to the municipalities are conducted before the expiry of five years as specified in clause (1) of Article 243-U.  The constitution bench of the Hon’ble Supreme Court had further expressed very categorically that the State Election Commission would not be allowed to make any excuse on unreasonable grounds that the elections could not be completed in time and any revision of electoral rolls or any other exercise needed to be carried out before the expiry of duration of five years and it is only in exceptional circumstances i.e certain manmade calamities such as rioting or natural calamities which could be regarded as an exception on account of delay in the process of election.  It was further held that the entire provision in the constitution was inserted to see that there should not be any delay in the constitution of a new municipality every five years and in order to avoid any mischief of delaying the process of election and allowing the executive bodies to continue, the provisions have been added to the constitution to avoid the same.

 

Inspite of such strong and categoric directions issued by the Hon’ble Supreme Court keeping in mind the intention of the 73rd and 74th amendment in the Constitution of India, the amendments made by State Government in Haryana Municipal Corporation Act for the purpose of delaying the process of elections and for giving powers to the executive to run the municipalities through an administrator is ultra vires and violative of the provisions of Part IX-A[6] of the Constitution of India and runs totally contrary to the purpose and the intention for which the amendments were made by the Parliament by amending the Constitution of India for the purpose of redressing the issues of local administration and for the purpose of participation of the people in the process of elections at the grass root level so as to nurture the minds of people for the purpose of making them more aware about the democratic process of the country. 

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[1]Part IX (Containing Articles 243, 243-A to 243-O) ins. by the Constitution (Seventy-third Amendment) Act, 1992, Sec. 2 (w.e.f. 24.04.1993). Earlier Part IX dealing with territories in Part D of the First Schedule was repealed by the Constitution (Seventh Amendment) Act, 1956, Sec. 29 and Sch. (w.e.f. 01.11.1956)

[2]Part IXA (Containing Articles 243 P to 243Z, 243ZA to 243ZG) ins. by the Constitution (Seventy- fourth Amendment) Act, 1992, Sec. 2 (w.e.f. 01.06.1993)

[3] 2003 (9) SCC 731

[4]Supra Note 1

[5]2006 (8) SCC 352

[6] Supra Note 1