1. This is a matter which deals with criminals in politics at the grassroot level. The State Government had been directed by the Court to place a list of Mukhiyas who may have been convicted of an offence, or for that matter, were inherently disqualified under law so as not to be the members of Panchayats, information being given to the Court is coming slowly. This aspect the Court will leave for later.
2. Sooner or later the question will arise that if there be information, as a fact, that certain members of Panchayats have indeed been convicted, then, what is to be done. Plainly, this is a matter where a member of a Panchayat may be disqualified for being part of it. Does the Constitution of India give any guidance on such situations? It does. As amended, Part IX, the Chapter. The Panchayat, Article 243F does mention disqualification for membership. This Article also casts an obligation on the State Government that the law must provide for taking care of such situations. The next question is has the law so framed by the State Legislature provided for such a situation? The answer is it has. Sub-section (2) of Section 139 under the sub-head 'Disqualification' clearly mentions that if there be an occasion that a member of Panchayat at any level has become subject to any of the disqualifications mentioned in the Section, the question shall be referred for the decision by such authority and in such manner as the Government may by law provide.
Below, the Court is reproducing Sub-clause (2) of Article 243F and sub-section (2) of Section 139 of the Bihar Panchayat Raj Act, 1993 side by side. It is clear to the naked eye that Sub-section (2) of Section 139 has been lifted from Article 243F of the Constitution of India:
Article 243-F(2) of the Constitution of India., Section 139(2) of the Bihar Panchayat Raj Act, 1993
If any question arises as to whether a member of a Panchayat has become subject to any of the question shall be referred for the decision of such authority and in such a manner as the Legislature of a State may, by law, provide. If any question arises as to whether a member of a Panchayat at any level has become subject to any of the question shall be referred for the decision of such authority and in such manner as the Government may by law provide.
3. The other question facing the State of Bihar is whether the law has sufficiently provided to take care of the situation of inherent disqualification. For instance, a person may not be a citizen of India or for that matter a person may have been convicted by a Court of competent jurisdiction.
4. Section 138 refers to qualification for membership of a Panchayat. Prima facie, any person whose name is in the list of voters, of any Panchayat constituency, shall be qualified to be elected as a member or office bearer of the Panchayat. But, this qualification has been qualified by the Act with a rider. The rider is 'unless disqualified under this Act or under any other law for the time being in force. 'The disqualification part is referred to in Sub-section (1) of Section 139.
5. Then there are steps which a candidate goes through to get elected. It goes without saying that he has to go through the process of filing a nomination to stand for an election. Can the nomination paper be rejected? Like any other electoral law, election to Panchayat is no different. Section 144(1)(i) does provide for an improper acceptance of any nomination. Duty to declare the truth on one's qualification is an obligation on the candidate. Form-6 requires certain information to be stated as a fact. The obligation on a person seeking election is that if he be disqualified for any reason, he will say so in the nomination paper. This exercise is followed by a declaration upon an affidavit. For instance, if a person falsely declares that he is a citizen of India, when he may not be, or falsely declares that he has not been convicted of an offence by any Court when he may have been, the disqualification is inherent.
6. The Court is not on the aspect that the process of election may have been affected, for instance, by corrupt practices in which case an election petition may be filed. This has been provided under Rule 108. The Court is also not going into the question that somebody may bring this matter of inherent disqualification by an election petition. The law does not preclude any person from filing an election petition. But, there is a time-limit within which such an election petition may be filed. It is 30 days.
7. Plainly, the issue which is being faced in this matter of public law is that a candidate may have escaped scrutiny of his disqualification by the Returning Officer and has been returned to an elected office. What is to be done? If an election petition cannot be filed within 30 days then clearly the guidelines given by the Constitution in Sub-clause (2) of Article 243F, re-produced in the Bihar Panchayat Raj Act, 1993, as Sub-section (2) of Section 139, is possibly contemplating an authority other than the authority which is to hear an election petition.
8. The Constitution does not suffer a situation that a person who is not a citizen of India or has been convicted of an offence will get away as if to cock-a-snook at the law that politics permits such a game. It does not. Every one talks about the morality of politics in their drawing-rooms but when it comes down to cleansing the system at the grass-root the will seems to be lacking.
9. A suggestion was made to the Court by learned Counsel for the State that a discussion is underway at the State Government on filing an election petition. But, no sooner the suggestion was made, it was accepted that any election petition which may have contemplated by the State Government of an election which took place 5 months ago is clearly barred by Rule 108 as it would be a petition filed after 30 days. This would only lead to a complication and permit disqualified persons to have a field day. Thus, a decision of disqualification as an election petition under Rule 122, will face the complication of limitation, if it is not within the prescribed period.
10. Thus, whatever has to be done to take care of persons who are otherwise not qualified for membership to the Panchayats, and the Constitution of India clearly discourages such a situation, the guidance is to be taken from the Constitution of India. If any matter needs to be taken care of to fill up any void which is existing in the Act then this must be done without further delay.
11. At the request of learned Counsel for the State, Mr. S.A. Hussain, S.C. 6, the Court is adjourning this matter for being posted when the High Court re-opens after the winter vacation on 4 January 2001.
12. Put up on 4 January 2001 in the supplementary list.