Thottathil B. Radhakrishnan, J.
1. Petitioner and respondents 3 and 4 are councillors of the Palakkad Municipal Council.
2. The third respondent was elected as the Chairperson of the Municipality on 6-10-2005. He did not take oath consequent to such election. This and certain other matters, including the election of the Deputy Chairperson of the Municipality came up for consideration before this Court, ultimately leading to the judgment of the Division Bench in Balasubramanian v. Chandradas reported as : 2006(2)KLT467 , delivered on 22-3-2006.
3. Among other things, the Division Bench, as per the aforesaid judgment, directed that fresh election be held to the post of the Chairperson. As a consequence, election was held on 24-5-2006. Respondents 3 and 4 were the candidates. The third respondent poled 20 votes and the fourth respondent poled 18 votes. Though the third respondent was declared elected as the Chairperson in the election held on 24-5-2006, he did not take oath as the Chairperson in terms of the statutory provisions.
4. This Writ Petition is filed seeking a direction compelling the third respondent to take oath as the Chairperson failing which, to take further steps to declare him disqualified under the provisions of the Kerala Municipality Act, 1994, hereinafter referred to as 'the Act', to function as a councillor. A further relief is sought for, seeking a direction to the first respondent State Election Commission, hereinafter, 'Election Commission', for short, to declare the fourth respondent as the duly elected candidate..
5. Pending this Writ Petition, the Election Commission has, by order dated 23-6-2006, declared the office of the Chairperson as vacated since the third respondent has not entered office, without sufficient cause. That decision in terms or Sub-section 8A of Section 12 of the Act has become final.
6. Some of the pleadings in the previous bunch of matters that led to the aforesaid judgment of the Division Bench and an additional statement are filed by the first respondent Election Commission producing certain documents. The third respondent has filed a counter-affidavit contesting the Writ Petition. Certain Councillors of the Municipality are impleaded as additional respondents in this Writ Petition at their request.
7. In the election on 24-5-2006, third respondent poled 20 votes. According to him, as a member of Communist Party of India (Marxist), a major constituent of the Left Democratic Front, hereinafter 'LDF', and having contested the election to the Council in the symbol given by the Election Commission to that political party, he is duty bound to function as Councillor in accordance with the declared policy of that political party, not to hold any office of Chairperson of local bodies with the support of Bharathiya Janatha Party, hereinafter, 'BJP'. He contends that only 15 councillors, including him, owe allegiance to LDF and the total votes poled by him being 20, the remaining 5 votes are votes of councillors owing allegiance to BJP, since the fourth respondent, who owes allegiance to the United Democratic Front, hereinafter, 'UDF', for short, had poled all the 18 votes of those councillors owing allegiance to the UDF. On that premise, the third respondent takes the stand that having been declared elected as the Chairperson with the support of the councillors owing allegiance to BJP, he is not prepared to hold that office on the basis of the election in which he has been declared elected. According to him, it is therefore that he does not take oath as the Chairperson. The political equations between the councillors or their affinities are matters that would engage the attention of this Court only when it is called upon to decide justiciable issues, resolution of which would need adjudication on the basis of such facts.
8. The issues that arise for decision are:
I. Whether a direction is to be issued to the third respondent to take oath as a Chairperson?
II. Whether the third respondent is liable to be declared as disqualified to function as a councillor in view of his refusal or failure to take oath as Chairperson?
III. Whether upon a declaration by the Election Commission that a person has vacated on his own motion, the office of the Chairperson on account of his failure to take oath within the period prescribed in Sub-section 8A of Section 12 of the Act, can the person, who poled the second highest number of votes, if one is so available, be declared as elected as the Chairperson in the election in relation to which the person, who is declared to have vacated on his own motion, was declared elected or whether it is imperative that an election be held for such a vacancy?
IV. On the facts and in the circumstances of this case, is the issuance of any writ, direction or order under Article 226 of the Constitution of India called for? If yes, what shall be the reliefs?
Issues I and II
9. By order dated 23-6-2006, the Election Commission has issued an order under Sub-section 8A of Section 12 of the Act holding that the office of the Chairperson stands vacant. That order was issued since the third respondent did not show cause for his failure to take oath. The notice issued by the Election Commission to the third respondent was not answered by him. Since it has been determined by the Election Commission that the post of the Chairperson remains vacant, there cannot be any direction to the third respondent to take oath as Chairperson. The qualification of candidates and disqualifications of candidates and councillors are those referable to Sections 85 to 91. Refusal to take oath and enter into an office to which a councillor is elected, is not a ground for disqualifying the councillor. The third respondent has taken oath as a councillor. Therefore, there cannot be a declaration that he is disqualified under the provisions of the Act to function as a councillor.
Issues III and IV
10. As noticed by the Division Bench in Balasubramanian's case (supra), the Act was enacted to replace the enactments relating to Municipalities and Municipal Corporations then in force by a comprehensive enactment in line with the Constitution (Seventy Fourth) Amendment Act, 1992 for securing greater measure of participation of the people in planned development and in local governmental affairs and to endow such Municipalities with necessary powers and authority to enable them to function as institutions of self government. Municipalities have been entrusted with the functions of preparation of plans and implementation of schemes for economic development and social justice including the implementation of schemes in relation to matters listed in the Twelfth Schedule to the Constitution.
11. 'Chairperson', in relation to a Municipal Council, means the Chairman of that Municipal Council, in terms of Sub-section 6 of Section 1 of the Act. Section 10(1) provides that there shall be a Chairman in every Municipal Council, who shall be elected by the elected Councillors in the manner prescribed. The Chairperson shall be a full-time functionary of the Municipality.
12. Sub-section 1 of Section 12 provides that a meeting shall be convened, by the Election Commission, within three weeks from the date of publication of the names of the elected Councillors to elect the Chairperson. Sub-section 2 of Section 143 provides that the Chairperson, before entering upon office, shall make and subscribe an oath or affirmation in the statutory form. Sub-section 8A of Section 12, introduced by Act 34 of 2005, provides that if the Chairperson, without sufficient cause, does not enter upon office by taking oath or affirmation within a period of fifteen days from the date he was declared elected, the State Election Commission shall declare the office of the Chairperson as vacated. The use of the phrase 'has not entered upon his office' in Sub-section 8A, understood in the light of Section 143(2), clearly establishes that the Chairperson, who does not take oath within a period of fifteen days, does not assume office of the Chairperson and the provision in Sub-section 8A that the State Election Commission may declare the office of the Chairperson as 'vacated' only means that the said office is lying vacant. It does not lead to any inference that the Chairperson had assumed and then demitted office.
13. Unlike in certain other situations in laws relating to elections where an elected person may have certain limited rights even before taking oath, one who is elected as a Chairperson, does not have any such right under the statute. He does not enter office. Such a councillor, till he takes oath as the Chairperson, can continue only to discharge the duties and responsibilities as a councillor and nothing more. The decision of the Court of Kings Bench in the King v. Swyer (1830) 10 B & C 486 : 109 ER 531 deserves to be referred to in this context. By charter, the capital burgesses and common council of a borough were authorized to elect and nominate one of the capital burgesses to be mayor for one whole year and he, before he were admitted to execute that office, or in any way to intermeddle in the same office, was, not only to take his corporal oath well and faithfully to execute the office, but also all the oaths appointed by a mayor to be taken; and after such oath so taken, he might execute the office of a mayor of the borough for one whole year then next ensuing. It was held that the elected person became mayor, not when he was elected, but when he was sworn in. In re Mayor of Penryn 1 Strange 562 : 93 E.R. 714 is also authority for the proposition that a person is admitted to a public office, which requires oath of allegiance, only when the oath of allegiance is taken.
14. The Kerala Municipality (Election of Chairperson and Deputy Chairperson) Rules, 1995, hereinafter referred to as 'the Election Rules', provide the rules applicable to elections. The source of power for making the Election Rules is traced to Sections 10 and 12 of the Act apart from Sections 11 and 565. Section 10 of the Act, as already noticed, enjoins that there shall be a Chairperson in every Municipal Council. Sub-section 3 of Section 12 provides that it shall be the duty of the returning officer to do all such acts and things as are necessary for the efficient conduct of the election, in the manner prescribed. Rule 6 of the Election Rules provides for nomination of candidate. Rule 6(1), excluding the provisos thereto, being relevant in this context, is extracted hereunder:
6. Nomination of candidate. - (1) A Councillor of the concerned Municipality shall in the case of election of Chairperson or Deputy Chairperson, as the case may be, nominate another Councillor as a candidate and yet another Councillor shall support the nomination and in case the nominated Councillor is not present, the willingness in writing of the person so nominated agreeing to stand as a candidate shall also be produced:
The willingness of the person, who is nominated as a candidate, is sine qua non for his such nomination. If he is not present, his willingness in writing agreeing to stand as a candidate shall be produced. If he is present, obviously, he is expected to express himself, at least, when he is unwilling to be a candidate. Such willingness is absolutely essential to treat a candidate as 'duly nominated' in terms of Rule 6(1). A reading of Rules 7 and 8 will show that a contesting candidate is one, who is a duly nominated candidate. thereby meaning, one who has been nominated in terms of Rule 6(1) and whose willingness, either express or implied, is available for the councillors forming the electoral college to cast their vote. The expression of such implied or express willingness to be a candidate in an election to the post of Chairperson has necessarily to run until the election runs to its logical and purposeful end. Otherwise, it will be a mockery of democracy, the inbuilt principle in local self governance; the cream of the legislation under consideration. If a person expresses his willingness to be a candidate in an election as a Chairperson, is it to be assumed that his willingness was only to participate in a trial of strength? Is it to be assumed that he never intended to become the Chairperson, even if he is elected, unless the voters were persons of his choice? Is it to be assumed that the willingness, implied or express, for the purpose of Rule 6(1) of the Election Rules, was a conditional one? Can a 'conditional' willingness make one, who is nominated, 'a duly nominated' candidate for the election? The willingness of a councillor for being nominated as a candidate for election of the Chairperson is the willingness to act as the Chairperson, if elected, by following the law of the land and to assume office and discharge duties and responsibilities attached to that office. Reading otherwise, the concept of willingness or consent in Rule 6(1) of the Election Rules, will undermine the whole concept of faith, confidence and trust that is expected of a person, who is nominated with his willingness to be a candidate in an election of the Chairperson of a municipality. This is so because, once he knows the constitution of the electoral college, in this case, the entire group of councillors forming the municipal council representing the citizens in that municipality, it is their will that shall prevail, once it is expressed in the form of the mandate that finds expression in the election. On accepting the verdict, the elected Chairperson, in consonance with the willingness given for the nomination, is bound by the Constitution and the laws to take oath and assume office, lest which, he is to be treated as one, who had not become the Chairperson, following the election since, as already found, the Chairperson assumes office only after taking oath, as such oath is to be taken before entering upon office.
15. After the 74th amendment of the Constitution, municipalities are constitutional institutions. Their constitution is provided for by Article 243Q of the Constitution. The powers, authorities and responsibilities of the municipalities are required to be provided by the Legislature of the State, including to carry out its obligations in re those subjects enlisted in the Twelfth Schedule. Article 243Q is a constitutional provision that guarantees consistency as regards the constitution of the municipalities. In the context of the provisions in Part IX-A of the Constitution, one can never envisage that a person, who is unwilling to take oath and assume office as a Chairperson, whatever be his excuse, is entitled to be a candidate for the election to that post. Adherence by one to the policies of his political party is no answer to the constitutional obligation of a citizen to discharge the public duties attached to the office to which he is elected. The Nation and national interest are supreme, not subservient to policies of any political party. Consent to take oath and assume office is an inbuilt content of the willingness, express or implied, on the basis of which his nomination is made. This is how Rule 6(1) of the Election Rules has to be interpreted in the backdrop of the Constitution. Otherwise, the aspirations of the people would be left as mere mirages by gimmickry politics. Politics without morality is anathema that cripples the social goals. It impinges on the very foundation of democracy.
16. So much so, the third respondent by his failure/refusal to take oath, following the election, is one who has not become the Chairperson and the office of the Chairperson continues to remain vacant.
17. Now, the question that arises for decision is as to how such vacancy of the office of the Chairperson is to be filled up. Is a fresh election to be conducted? Or, can it be filled up by the candidate who poled the second highest number of votes? Whether the only recourse is to have a fresh election conducted in terms of Sub-section 8 of Section 12, in view of Sub-section 8A
18. Sub-section 5 of Section 12 provides that where a person could not be elected, a 'fresh election' shall be conducted within forty-five days for the election of the Chairperson. The declaration by the Election Commission under Sub-section 8A of Section 12, that a person elected as Chairperson has 'vacated' the office by not entering upon it by taking oath, is not a situation where 'a person could not be elected'. Such a vacancy is not referable to the declaration of the result, but by reason of non-assumption of office by the elected person. Therefore it is not a vacancy that would call for a 'fresh election' in terms of Sub-section 5 of Section 12 of the Act. Section 12(5) is the provision that specifically provides for the situation in which a fresh election of Chairperson shall be conducted. The making of the said provision discloses the consideration by the legislature of situations . which may require a 'fresh election' to the post of Chairperson. Such a course is provided for by the legislature only in a situation where the Chairperson could not be elected at an election. The provision of a fresh election made by the legislature by enacting Sub-section 5 of Section 12 and stating the situation where a fresh election is to be conducted has to be taken as sufficient statutory material to infer that the legislature intended to exclude a 'fresh election' in any other situation. Such legislative expression does not envisage a 'fresh election' in any event otherwise than that conceived therein. A 'fresh election' is thus not provided for, in the situation in hand.
19. Sub-section 8 of Section 12 provides that the Secretary of the Municipality shall report to the Election Commission, any 'casual vacancy' in the post of the Chairperson and the Election Commission shall then take steps for election of a Chairperson. Sub-section 5 of Section 2 defines a 'casual vacancy' to mean a vacancy occurring otherwise than by efflux of time. As already found, the effect of the declaration of the Election Commission under Sub-section 8A of Section 12 is not that a vacancy has occurred but only that the post of Chairperson continues to remain vacant. This means that the vacancy of Chairperson which had occurred by efflux of time, owing to the termination of the term of the previous council of the Municipality, remains unfilled, in spite of the election to the Chairperson held on 6-10-2005 and 24-5-2006. Therefore, there is no 'casual vacancy' as defined in Section 2(5) and hence, the situation arising out of an order under Sub-section 8A of Section 12 does not give rise to a 'casual vacancy' to be reported for an election in terms of Sub-section 8 of Section 12. A declaration of vacancy under Sub-section 8A of Section 12 is not a 'casual vacancy' for the purpose of Sub-section 8 of Section 12.
20. This litigation is not one to be treated as an adversarial one, between the petitioner on the one hand and the contesting respondents on the other. While hearing such a matter, the constitutional court acts as a sentinel on the qui vive discharging its obligation as custodian of the constitutional morals, ethics and code of conduct well defined in a series of judicial pronouncements. The Court, while scrutinising the conduct and activities of those involved in the administration of a public institution, like a municipality which is constituted with the avowed object of serving the society, is obliged to see that its existence and activities are guided with the object of public good and are in consonance with the constitutional goals. The constitutional courts are not to remain silent spectators watching the subversion of the Constitution. The fact that the founding fathers of our Constitution designedly and deliberately, did not envisage the imposition of any jurisdictional embargo on them is significant and sufficient enough to identify the depth, width and extent of the powers of the constitutional Courts. The fetters devised or perceived on their exercise of powers or jurisdiction to entertain and deal with a matter are merely self-imposed, for one or the other reason, assigned therefor and they would not stand in the way of or deter the constitutional Courts in any manner from rising up to respond in a given situation as and when necessitated and effectively playing their role in accommodating the Constitution to changing circumstances and enduring values. As sentinels on the qui vive, the constitutional Courts are duty bound to preserve and safeguard the Constitution, protect and enforce the constitutional mandates which declare the inviolable rights of the people. The views in this regard, expressed by Hon'ble Mr. Justice Doraiswamy Raju in P. Ramachandra Rao v. State of Karnataka : 2002CriLJ2547 are apposite in this context. The constitutional Courts are ordained to uphold the Constitution and they interpret the Constitution and defend the fundamentals of 'rule of law'.
21. A legislation should withstand the tests on the touchstone of the constitutional provisions. But then, it is not always the corollary that all legislations have satisfied the constitutional goals. Nor is it for the Courts to assume that the constitutional goals are controlled and delimited by the statutes made by the legislatures. The provision contained in Sub-section 8A of Section 12 is merely one that the legislature envisaged as a possible way of notifying the continued existence of a vacancy. But that is not all. There is always a room unfilled by the statutes, but available in the Constitution, going by that parent document of the Nation which reflects the aspirations of her people and the goals, to be achieved, which are always positive. In the absence of legislative provisions to take care of the situation created by the third respondent, in my considered view, it is the constitutional duty of the writ court to come to the aid of a constitutional institution, namely, the Palakkad Municipality.
22. As can be noticed from the facts of this case, all that is going on, is a game of musical chair, merrily played at the cost of the Exchequer. Is this what is contemplated by the Constitution? Is this the dictate of the Sovereign, namely, the People? The situation in hand is one where the third respondent ought to be treated as one who has breached the willingness given by him in terms of Rule 6(1) of the Election Rules by his refusal to take oath on being elected by the electoral college which acted on the basis of the willingness expressed by him in terms of the said Rule. It is the situation where the third respondent has, thus, recalled himself from being a contender to hold the post of the Chairperson. The situation requires and deserves to be remedied. Under the circumstances, it is the situational requirement in terms of the Constitution and the laws that the person who poled the second highest number of votes is declared as the Chairperson and is to be administered oath in terms of the law, to be let to assume the office of the Chairperson. It is so declared.
23. In view of the aforesaid, it is declared that the fourth respondent is entitled to be administered oath in terms of the law, to be let to assume the office of the Chairperson of the Palakkad Municipality, following the election held on 24-5-2006.
The Writ Petition is disposed of with the above declarations.