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Prasanna Mishra

News Highlights

  • It is incumbent upon State Election Commission to see that new Municipality is constituted in time.
  • Election to the BMC was due in the month of December, 2018.
  • The Commission failed to discharge its Constitutional obligation and depended on the State Government.
  • A serious constitutional crisis persists for nearly three years.

Urban local bodies (ULBs) in our country in the past had become weak and ineffective because of variety of reasons, including elections not being held regularly, prolonged supersessions and inadequate devolution of powers and functions. Hardly did the ULBs function as vibrant democratic units of self-Government. It was therefore considered necessary that provisions relating to ULBs were incorporated in the Constitution, so that those were placed on a firmer footing in their relations with the State Government relating to functions and taxation powers and on revenue sharing and also to ensure regular conduct of elections, timely elections in the case of supersession; and provide adequate representation for the weaker sections like Scheduled Castes, Scheduled Tribes and women.

Accordingly, a new Part relating to the Urban Local Bodies was added in the Constitution that provided for --- (f) fixed tenure of 5 years for the Municipality and re- election within a period of six months of its dissolution. Under Article 243 U of the Constitution, duration of the Municipality was fixed for a term of five years and every Municipality would continue for five years from the date appointed for its first meeting and no longer. Clause (3) of Article 243-U states that election to constitute a Municipality shall be completed before the expiry of its duration. Therefore, Constitution mandates that election to a Municipality shall be completed before the expiry of the five years' period stipulated in Clause (1) of Article 243-U.

It is, therefore, incumbent upon the State 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 Municipality are conducted before the expiry of its duration of five years as specified in Clause (1) of Article 243-U.

Hon’ble Supreme Court of India, in their judgement in Kishan Sing Tomar’s case have held that powers of the State Election Commission in respect of conduct of elections are no less than that of the Election Commission of India in their respective domains. These powers are, of course, subject to the laws made by Parliament or by State Legislatures provided the same do not encroach upon the plenary powers of the said Election Commissions. The State Election Commissions are to function independent of the concerned State Governments in discharge of their powers of superintendence, direction and control of all elections and preparation of electoral rolls for, and the conduct of, all elections to the Panchayats and Municipalities. Article 243 K (3) also recognizes the independent status of the State Election Commission. It states that upon a request made in that behalf, the Governor shall 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. In the matter of the conduct of elections, the concerned government shall have to render full assistance and co-operation to the State Election Commission and respect the latter's assessment of the needs in order to ensure that free and fair elections are conducted. 

The Hon’ble Supreme Court of India also held that where the State Election Commission feels that it is not receiving the cooperation of the concerned State Government in discharging its constitutional obligation of holding the elections to the Panchayats or Municipalities within the time mandated in the Constitution, it will be open to the State Election Commission to approach the High Courts, in the first instance, and thereafter, if necessary, the Supreme Court, for a writ of mandamus or such other appropriate writ directing the concerned State Government to provide all necessary cooperation and assistance to the State Election Commission to enable the latter to fulfill the constitutional mandate. 

Election to the Bhubaneswar Municipal Corporation (BMC) was due in the month of December, 2018, after expiry of their tenure of five years from the date of its last constitution in the year 2013. The process for completion of the said elections should have been completed before expiry of the term of 5 years as mandated by the Constitution of India. 

The Commission, however, failed to discharge its Constitutional obligation and depended upon the State Government for some reason or the other. If the State Government did not cooperate with the Commission for conduct of the timely poll, then in conformity with the judgment of the Hon’ble Supreme Court in Kishan Sing Tomar’s case, the Commission should have approached the Hon’ble High Court of Odisha at the first instance and thereafter, if necessary, the Hon’ble Supreme Court of India, to seek directions for holding the poll in time. 

However, the Commission did not take recourse to the legal remedy available in accordance to the decision of the Hon’ble Apex Court. Failure of the Commission to comply with the constitutional mandate left no other remedy with citizens other than seeking legal remedy in the Hon’ble High Court to hold the Election to the Municipal Bodies as mandated by the Constitution of India.

For over two and half years, Municipal bodies of Odisha are without elected representatives despite specific Constitutional mandate to hold Municipal Election before completion of the five year term of a Municipal Body. A serious constitutional crisis persists for nearly three years. This has resulted in denial of rights of the citizens to exercise their franchise and elect their representatives to the Municipal Bodies so that these function as vibrant democratic institutions of local government. It is hoped that the Election Commission would immediately announce dates of Election to the Municipal Bodies and hold Elections. 

(DISCLAIMER: This is an opinion piece. The views expressed are the author’s own and have nothing to do with OTV’s charter or views. OTV does not assume any responsibility or liability for the same. The author can be reached at lonewalker.1942@gmail.com)

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