TMI Blog1992 (5) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... n of Sections 47-A and 87-A of the Act to the Presidents of the Municipalities either elected by the Board or electorate as irrational and invalid of Article 14 of the Constitution was, yet, another ground of attack. Reduction of period from two to one year during which a vote of no- confidence could be tabled against a President by ordinance issued in 1990 which later became Act was challenged for absence of any discernible and reasonable principle and resorted to as `spoil system' thus constitutionally invalid. Democracy is a concept, a political philosophy an ideal practised by many nations culturally advanced and politically mature by resorting to governance by representatives of the people elected directly or indirectly. But electing representatives to govern is neither a `fundamental right' nor a 'common law right' but a special right created by the statutes,* or a `political right' or privilege' and not a `natural', `absolute' or `vested right'.(American Jurisprudence 2nd Edn. Vol.63 p771) `concepts familiar to common law and equity must remain stranger to Election Law unless statutorily recognised'.(Jyoti Basu Ors. v. Debi Ghosal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e initiated, what should be the procedure, who should exercise it within ambit of constitutionally permissible limits falls in the domain of legislative power. `Under a constitutional provision authorizing municipalties of a certain population to frame a charter for their own government consistent with and subject to the Constitution and laws of the state, and a statutory provision that in certain municipalities the mayor and members of the municipal council shall be elected at the time, in the manner, and for the term prescribed in the charter, a municipal corporation has authority to enact a recall provision'. (American Jurisprudence 2nd Edn. Vol.63 p.771) Therefore, the validity or otherwise of a no- confidence motion for removal of a President, would have to be examined on applicability of statutory provision and not on political philosophy. The Municipality Act provides in detail the provisions for election of President, his qualification, resignation, removal etc. Constitutional validity of these provisions was not challenged, and rightly, as they do not militate, either, against the concept of democracy or the method of electing or removing the representatives. The recal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt should accept a construction which may advance constitutional tenets of political philosophy and justice rather than subverse it. Force of these submissions or their merit may not be as doubtful as its applicability to the circumstances of the present case. Misapprehension appeared to be the foundation for vehement submission that removal of a President, elected by the electorate, by the Board would be substituting confidence of people by a much smaller body which would, apart, from violating the basic norm of recall of an elected representative by the same body which elected him would be unreasonable, irrational and against public interest. Vote of no-confidence against elected representative is direct check flowing from accountability. Today democracy is not a rule of 'poor' as said by Aristotle or of 'Masses' as opposed to 'Classes' but by the majority elected from out of the people on basis of broad franchise. Recall of elected representative is advancement of political democracy ensuring true, fair, honest and just representation of the electorate. Therefore a provision in a Statute for recall of an elected representative has to be tested not on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctorate themselves. An elected representative is accountable to its electorate. That is the inherent philosophy in the policy of recall. For the President his electorate, to exercise this right, is the Board as it comprises of representatives of the same constituency from which the President is elected. Purpose of Section 87-A of the Act is, to remove elected representative who has lost confidence of the body which elected him. It may be by people themselves or they may entrust their power through legislation to their representatives. In Act it is the latter. Members of the Board are elected from smaller constituencies. They represent the entire electorate as they are representatives of the people although smaller in body. A President who is elected by the entire electorate when removed by such members of the Board who have also been elected by the people is in fact removal by the electorate itself. Such provision neither violates the spirit nor purpose of recall of an elected representative. Rather ensures removal by a responsible body. It cannot be criticised either as irrational or arbitrary or violative of any democratic norm. In fact construing the provision as suggested would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the President to recommend its supersection under Section 47-A(1)(a) are a check on each other's functioning. Comparison with provisions in Panchayat Raj Act where a Pradhan is removable by the Gaon Sabha was odious as a Gaon Sabha is a very small body as compared to a Municipality. The provision consequently cannot be held to be bad either because the Board is a smaller or different body. Nor it can be characterised as irrational or arbitrary. It would be unrealistic to say so. Any challenge founded on violation of democratic norm thus cannot be accepted. Another off shoot of the same submission was that when removal was by a smaller body the Legislature in 1949 provided a safeguard that a Chairman elected by people removed by vote of no-confidence if re-elected could not be removed again by a vote of no-confidence. According to the learned counsel in absence of such safeguard the provision in Section 47A, as it stands now, becomes arbitrary and in absence of clear language it should be held inapplicable to President elected by the electorate. The approach does not appear to be sound. Legislature's power to enact such provision is derived from Entry 5 of List II of VI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 2 of 1916 was enacted it provided for election of Chairman of the Board by a special resolution passed by the members under Section 43(1) of the Act. Sub-section (2) provided for ex-officio nomination by the Government of the Chairman in some municipality. Section 48 empowered the Government to remove a Chairman after hearing and giving reasons. It did not contain any * R.S. Nayak v. A.R. Antulay, [1984] 2 SCC 183 ** Reserve Bank of India v. Peerless Gen. Finance Investment Co. Ltd., [1987] 1 SCC 424 (450) *** Tumahole Bereng Ors. v. The King., AIR 1949 PC 172 **** Tumahole Bereng Ors. v. The King., AIR 1949 PC 172 provision for removal of a chairman by a vote of no- confidence. Ten years later Act 2 of 1926 brought about a very significant change in the Act by introducing Section 47A and conferring power of removal of Chairman, other than the ex-officio, by the members of the Board by expressing a vote of no-confidence against him. Section 48, too, was amended and a Chairman who failed to resign after a vote of no-Confidence was liable to be removed, by the State Government. Thus it was as far back as 1926 that removal of the Chairman by elected representative found its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orate directly. From 1982 onwards, therefore, the direct election of President by the electorate is confined to smaller municipalities. The pattern that is, clearly, discernible from these provisions is that even though the manner of electing President has been changing from time to time the method of his removal by a vote of no-confidence by the board has remained unchanged. The Legislature never opted for removal of a President elected directly by the electorate itself. That would have been practical impossibility. Sub-section (1) and (2) of Section 87-A which are relevant are extracted below : 87-A. Motion of non-confidence against President (1) Subject to the provisions of this section, a motion expressing non-confidence in the President shall be made only in accordance with the procedure laid down below. (2) Written notice of intention to make a motion of no-confidence in its President signed by such number of members of the Board as constitute no less than [one-half] of the total number of members of the Board together with a copy of the motion which it is proposed to make shall be delivered in person together by any two of the members signing the notice to the Dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three days after the date of receipt of such communication, and thereupon a casual vacancy shall be deemed to have occurred in the office of the President within the meaning of Section 44-A : Provided that if a representation has been made in accordance with clause (a) the board shall not elect a President until an order has been made by the State Government under sub-section (3). (2) * * * (3) If a representation has been made in accordance with sub-section (1), the State Government may after considering the same [either supersede the board for such period, not exceeding the remainder of the term of the board, as may be specified, or reject the representation.] (4) * * * (5) * * * (6) If the State Government supersedes the board under sub-section (3) the consequences mentioned in Section 31 shall follow as if there had been a supersession under Section 30. No part of the section lends support to the submission that its applicability should be confined to President elected by the board, only. Much was attempted to be made out of the proviso. It was urged that since it could not apply to a President elected by the people, the Legislature should be deemed to have intended tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision acts in presenting drawing from past experience and providing for future. That cannot be defeated by projecting into in the past by interpretation. Nor can the provisions be held to be vague because they do not provide any safeguard against moving a no- confidence motion against the President who is re-elected as was in 1949. In fact the history goes against appellant. In 1949 Section 43 was amended and President of either Municipality was to be elected by the electors directly as sub-section (2) of Section 43 was substituted and it provided as under : (2) Simultaneously with the general election of the members of a Board, or whenever the Provincial Government so considers necessary, separately, the electors of a municipality shall in the manner prescribed, elect a person as the President of the Board. The sub-section now reads as under : (2) The President of a Board other than a Board referred to in sub-section (1) shall be elected by the electors in the municipality. But the procedure for removal of the chairman under Section 87-A by vote of no-confidence by the Board remained same. Therefore, even in 1949 a President elected from electors was liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which are said to occur on it, you cannot derive those provisions by implication from a proviso'. (West Derby Union v. Metropolitan Life Assurance Society, 1897 A.C. 647) proviso could be used for adopting a construction as suggested either when there was some doubt about the scope of the section or there would have been at least some reasonable doubt about accepting one or the other construction as became necessary in Jenning v. Kewlly, (1939) 4 All England Law Reports 464 on which reliance was placed by the learned counsel for appellant. Reduction of period, during which a no-confidence motion could be tabled against the President, from two to one year was challenged and it was urged that in absence of disclosure of any discernible and reasonable principle which is necessary for every State action the ordinance, which later on became Act, was liable to be struck down. Motive was also imputed to the legislature and it was urged that recourse was taken by the new political party as 'spoils system' of the election which was arbitrary and violative of Article 14. (Kumari Shrilekha Vidyarthi v. State of U.P., [1991] 1 SCC 212.) No assistance can be derived from Srilekha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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