Judgment:
1. The instant writ petition is filed seeking a direction to the respondents to immediately hold elections for Municipal Councils and Town Councils throughout Nagaland with one-third of the seats reserved for women in accordance with Article 243T(3) of the Constitution of India and Section 23A of the Nagaland Municipal (First Amendment) Act, 2006, for short, Amendment Act of 2006. The petitioners have also prayed for a direction to set aside and quash a Cabinet decision dated 16-12-2009 as well as a Notification dated 11-1-2010 issued by Commissioner and Secretary to the Government of Nagaland, whereby, in view of the Government's decision to postpone indefinitely the elections of Municipal Councils and Town Councils due in the month of January/February, 2010, apart from dissolving the Municipal Councils and Town Councils with effect from their respective dates of expiry of tenure, Executive Officers were appointed as Administrators in respect of the dissolved Municipal Councils/Town Councils to perform and discharge the functions of the Municipal Councils/Town Councils until such time elections are held to constitute the Municipal Councils and Town Councils.
2. The minutes of the Cabinet meeting held on 16-12-2009 in respect of Agenda No. 23, namely, 'Representation of Municipal Councils and Town Council Forum on election issue and related matters' is incorporated in Office Memorandum dated 21-12-2009. It will be worthwhile to reproduce herein below the aforesaid Office Memorandum dated 21-12-2009 at the very outset:
"OFFICE MEMORANDUM
Sub: Minutes of the Cabinet meeting held on 16th December 2009.
The undersigned is directed to forward herewith an extract of the minutes (Agenda No. 23) of the Cabinet meeting held on 16th December, 2009 for kind necessary follow up action : Quote :
Agenda 23 : Representation of Municipal and Town Council Forum on election issue and related matters.
The Cabinet deliberated upon the representation dated 30-11-2009 of Municipal and Town Council Forum and also the joint representation dated 12-12-2009 of the Naga Hoho and ENPO on the issue of the proposed Municipal and Town Council election and other related matters and, decided as follows :
The Cabinet felt that in view of the delicate situation in the State, and the on-going reconciliation and peace process in the State, there is a need to maintain harmony in the society. As the Municipal and Town Council elections have the potential to create tensions and undesirable situations in the State, and further as the Committee of Secretaries appointed to look into the short-comings of the present Municipal Act, and to suggest remedial measures, is yet to submit its report to the Government, the Cabinet decided to postpone indefinitely the Municipal and Town Council elections due in January, 2010. The Cabinet further decided that in view of the non-existence of any provision in the Nagaland MunicipalAct, 2001 for extension of the tenure of any Municipal/Town Council, the State Govt. may constitute Ad-hoc Municipal/Town Advisory Councils to run the affairs of the Councils till elections are held, or till further orders. The action taken on the matter may kindly be intimated to the Cabinet Cell."
3. The case projected by the petitioners in the writ petition is that though the Constitution and the Nagaland Municipal Act, 2001, for short, the Act, require elections to be held to the Municipal Councils and Town Councils with one-third reservation for women, the respondent authorities have not held elections. It is further stated that in view of the provision of Section 23-A of the Amendment Act of 2006, all male members who were directly elected from the wards which had become reserved for women were deemed to have vacated their seats within 180 days from 30-8-2006 i.e. by the end of February 2007, yet the respondents permitted the male members to continue till the term of the bodies expired in between 19-12-2009 and 9-3-2010.
4. It has also been averred in the writ petition that a notice for conduct of fresh elections to the Municipal Councils and Town Councils before the expiry of the term was issued by Notification dated 17-11-2009. Prior to that, by Notification dated 16-11-2009, the State Government had earmarked 82 wards to be reserved for women in the ensuing election. The said Notification had also allotted the wards to be reserved for Scheduled Caste (SC) and Scheduled Tribe (ST).
5. The Respondent Nos.1 and 3 had filed an affidavit-in-opposition as well as an additional affidavit-in-Opposition dated 28-9-2011. In the affidavit-in-Opposition, a preliminary objection is raised to the effect that no legal rights of the petitioners have been infringed and they having not suffered any legal injury, the petitioners have no locus standi to maintain the writ petition. Plea of dismissal of the writ petition on the ground of non-joinder of Administrators, being necessary parties, has also been taken. It has also been stated that implementation of reservation could not be initiated due to receipt of a number of representations from a cross-section of the society requesting for postponing of elections to Municipal Councils and Town Councils because of their opposition to one-third reservation of seats for women and that, accordingly, the Cabinet had decided to postpone the conduct of elections and to appoint Administrators in Municipal Councils and Town Councils to run the affairs of such bodies till elections are held. It has also been indicated in the said affidavit that the Cabinet, by a decision dated 18-1-2010, directed that the Committee of Secretaries earlier constituted to study and recommend amendment of the Act to submit its report by the end of April 2010. The affidavit also recites about the consultative meetings held with Tribal Hohos, Civil Societies, Women Organisations etc. and that in view of the perceptions articulated in such consultative meetings, it was considered that if elections were to be held at that stage, it may lead to unpleasant situation.
6. By filing the additional affidavit-in-opposition, the Respondent Nos. 1 and 3 state that the Census Operation of 2011 was completed and that though provisional figures of Census Operation have been released, the final figures are yet to be approved and notified by the Central Government. It is also stated that after the final approval of the Census Operation of 2011 is given, by the Central Government, the process of revision of electoral rolls and delimitation of wards have to be initiated under the Nagaland Municipal (Delimitation of Wards) Rules, 2003, for short, the Rules.
7. The Respondent No.2, the Nagaland State Election Commission, in its affidavit has stated that to start the process for conduct of election to the Municipal Councils and Town Councils and to conduct summary revision of electoral rolls, it had sent a communication way back on 25-6-2009 to the Respondent No.3 for making available necessary fund at its disposal to commence the process of election. The Commission had sought review of the Notification dated 17-11-2009 which directed holding of general election to constitute the Municipal Councils and Town Councils in the State as per Schedule annexed thereto by its letter dated 26-11 -2009 and had requested to hold the first phase of election on or before 29-1-2010. It has also been stated that from time to time the Commission reminded the State Government of the obligation to hold the elections.
8. I have heard Ms. Satpute, learned counsel for the petitioners, Mr. L. S. Jamir, learned Additional Advocate General, Nagaland, for Respondent Nos.1 and 3 as well as Mr. N. M. Jamir, learned counsel appearing for Respondent No.2.
9. The learned counsel for the petitioners submitted that there are no special, emergent or unforeseen circumstances that would prohibit the holding of elections and that a bye-election for a seat in the Nagaland Assembly had been peacefully held earlier this year in the Aolengden constituency. It has also been submitted that Article 243T of the Constitution applies with full force and vigour to the State of Nagaland and reservation for women has been frustrated for more than two decades in the State of Nagaland. In terms of Article 243U of the Constitution and Section 24 of the Act, before the term of the Municipal Councils and Town Councils comes to an end, elections are required to be held, but by the impugned Cabinet decision dated 16-12-2009, elections have been indefinitely postponed, facilitating appointment of Administrators to exercise, perform and discharge the functions and the duties of the Municipal Councils and Town Councils, which is wholly impermissible in law. It is contended that there is a constitutional mandate under Article 243U and a statutory requirement under Section 24 of the Act to complete the elections of Municipal Councils and Town Councilsbefore the expiry of the duration of 5 years from the date of appointment for its first meeting and that the materials on record do not justify that the State Government could have taken recourse to provisions of Section 83(1) of the Act to postpone the elections.
10. Drawing the attention of the Court to the proceedings of the consultative committee meetings, the learned counsel submits that from the deliberation at such meetings, at best it can be inferred that strong views had been expressed by certain quarters regarding reservation of seats for women and nothing further can be read into it so as to conclude that special, emergent and unforeseen circumstances had arisen justifying postponement of elections. The learned counsel relies on the decision of the Apex Court rendered in the case of Kishansing Tomar versus Municipal Corporation of the City of Ahmedabad, reported in (2006) 8 SCC 352 : (AIR 2007 SC 269) to fortify her submissions.
11. Mr. L. S. Jamir, learned Additional Advocate General, Nagaland, has submitted that in absence of any statement made by the petitioners that they want to be candidates in the elections, no legal rights of the petitioners have been violated and, therefore, they have no locus standi tomaintain this application. Petitioner No.1 is a Government servant and the Petitioner No.2 is the President of Naga Mothers' Association, which is an unregistered body and the address furnished by them, which is care of Naga Mothers' Association, would demonstrate that this present petition is a proxy petition on behalf of Naga Mothers' Association and, therefore, the writ petitioners have not approached this Court with clean hands, he contends. In view of the above, according to him, the writ petition is liable to be dismissed at the threshold. The learned counsel, on merits of the case, has submitted that the Cabinet had rightly taken the decision in its meeting held on 16-12-2009 for the reasons assigned therein to postpone indefinitely the Municipal Councils and Town Council election which was due in the early part of 2010. The interactions with Tribal Hohos and Civil Societies as well as the representations received would demonstrate that there is stiff opposition for reservation of seats for women and, therefore, time is not conducive to hold elections. He further submits that after the Census Operation of 2011 is approved by the Central Government, revision of electoral rolls and the delimitation of wards are required to be completed, which would take a considerable period of time. He submits that holding of any election to the Municipal Councils and Town councils without completion of the aforesaid exercise may not be warranted.
12. Ms. Satpute, in reply, has submitted that the petitioners are entitled to have a duly elected Municipal body as citizens of this country and, therefore, the petitioners have locus standi to maintain this writ application. It has also been contended that elections cannot be postponed indefinitely on the pretext of revision of electoral rolls and delimitation of wards and the elections which have long been overdue, should be directed to be held immediately on the basis of existing electoral roll and wards.
13. Mr. N. M. Jamir, learned counsel appearing for Respondent No.2 submits that the Election Commission is alive to the constitutional requirement to hold and conduct elections to the Municipal Councils and Town Councils, and there was no lack of initiative on the part of the Election Commission to hold the elections. The learned counsel submits that the electoral rolls need to be summarily revised as no revision was carried out since 2004 and, therefore, on 25-6-2009, the Commission had submitted a proposal to the Government for placing necessary fund in its disposal so as to start the process of election. In response to the Government Notification dated 17-11-2009 while the Commission expressed its inability to hold election as per schedule annexed to the Notification, it had suggested immediate revision of electoral roll and to hold the first, phase of the election of those Municipal Councils and Town Councils on or before 29-1-2010 whose terms were going to expire in the months of December, 2009 and January, 2010. Once again the Commission had submitted a proposal to the State Government, on 26-3-2010 to conduct elections in two phases in order to avoid legal complications and had also chalked out a tentative programme. He submitted that the Commission had not received any suitable response from the State Government.
14. It will be necessary, at the outset, to consider the plea of maintainability of the writ petition raised by Mr. L.S. Jamir, learned Additional Advocate General, Nagaland. It is true, as contended by Mr. Jamir, that petitioners have not made any statement that they would like to contest the elections as and when the elections are held. But the question is whether only in the event of making such a statement, it would have entitled the writ petitioners to maintain this application? In order to have the locus standi to invoke the extra ordinary jurisdiction under Article 226 of the Constitution, an applicant should ordinarily be one who has a personal or individual right in the subject-matter of the application, though in case of writs like habeas corpus or quo warranto, this rule is relaxed. As a general rule, infringement of some legal right or prejudice to some legal interest inhering in the petitioner is necessary to give the petitioner a locus standi in the matter.
15. The petitioners contended that they are entitled to have a duly constituted Municipal Councils and Town Council as mandated under Article 243T and Article 243U of the Constitution as well as Section 10 of the Act and Section 23A of Amendment Act of 2006. The last term of the Municipal Councils and Town Councils expired in between 19-12-2009 to 9-3-2010 and elections have beep indefinitely postponed in view of the Cabinet decision dated 16-12-2009. In the Constitutional scheme and the statutory context in which the matter falls to be considered, this Court is of the considered opinion that a legal wrong or injury, in the sense, that their interest, recognised by law, has been directly and prejudicially affected by the act or omission of the respondents. Accordingly, the contention of the learned Additional Advocate General, Nagaland, with regard to his submission regarding non-maintainability of the writ petition on the ground of locus standi is not accepted. The contention advanced by the learned Additional Advocate General, Nagaland, that the writ application is a proxy application and, therefore, the petitioners have not approached this Court with clean hands, is without any merit. The petitioners are citizens, who also happen to be members of Naga Mothers' Association and they have disclosed this fact in the very first paragraph of the writ petition. They have espoused their own cause in the writ petition and have sought to demonstrate breach of the constitutional provisions pertaining to election in respect of Municipal Councils and Town Councils. Merely because they have given their addresses under the care of Naga Mothers' Association does not make it a proxy petition on behalf of Naga Mothers' Association, which Association, in any case, being an unregistered Association, could not have maintained an application under Article 226 of the Constitution of India. Though non-joinder of necessary parties was also taken as preliminary objections in the affidavit, no arguments have been advanced to sustain such a plea. In any case, the plea raised in the affidavit with regard to non-joinder of necessary parties lacks merit as the Administrators who are allowed to perform and discharge the,, functions of the Municipal Councils and Town Councils, in the interregnum, till such time the elections are held to constitute Municipal Councils and Town Councils, are the Executive Officers of the dissolved Municipal Councils and Town Councils and have no independent and vested right to continue as such.
16. Part IXA of the Constitution of India, dealing with Municipalities, which was inserted by the Constitution (74th Amendment) Act, 1992, came into effect on 1-6-1993. The object of introduction of Part IXA was that in many States, local bodies had become weak and not working properly and timely elections were not being held and the nominated bodies were continuing for long periods. Elections have been irregular and holding of elections were endlessly delayed or postponed and the elected bodies were superseded and suspended without adequate justification at the ipse dixit of the authorities with the result that urban local bodies were not able to perform effectively as vibrant democratic units of self-governance. It was in this background that Part IXA of the Constitution was inserted to put in perspective the role of local bodies by providing a constitutional status to such bodies in political governance and to ensure regular and fair conduct of elections.
17. Article 243T of the Constitution deals with reservation of seats and Article 243U of the Constitution provides for duration of Municipalities, etc. Both these Articles form part of Part IXA of the Constitution of India. It is considered appropriate to reproduce hereunder Articles 243T and 243U of the Constitution :
"243T : Reservation of seats.— (1) Seats shall be reserved for the Scheduled Castes and the Scheduled Tribes in every Municipality and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Municipality as the population of the Scheduled Castes in the Municipal area or of the Scheduled Tribes in the Municipal area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Municipality.
(2) Not less than one-third of the total number of seats reserved under clause (1) shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes.
(3) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Municipality.
(4) The offices of Chairpersons in the Municipalities shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide.
(5) The reservation of seats under clauses (1) and (2) and the reservations for women under clause (4) shall cease to have effect on the expiration of the period specified in Article 334.
(6) Nothing in this Part shall prevent the Legislature of a State from making any provision for reservation of seats in any Municipality or offices of Chairpersons in the Municipalities, in favour of backward class of citizens."
"243U. Duration of Municipalities, etc.— (1) Every Municipality, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer.
Provided that a Municipality shall be given a reasonable opportunity of being heard before its dissolution.
(2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Municipality at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in clause (1).
(3) An election to constitute a Municipality shall be completed,—
(a) before the expiry of its duration specified in clause (1);
(b) before the expiration of a period of six months from the date of its dissolution :
Provided that where the remainder of the period for which the dissolved Municipality would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Municipality for such period.
(4) A Municipality constituted upon the dissolution of a Municipality before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Municipality would have continued under clause (1) had it not been so dissolved.”
18. Article 243T(1) provides that seats shall be resented for Scheduled Castes and Scheduled Tribes in every Municipality and the number of seats so reserved shallbear,as nearlyas may be, the same proportion to the total number of seats to be filled by direct election in that Municipality as the population of the Scheduled Castes in the Municipal area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Municipality. Clause (2) of Article 243T stipulates that not less than one-third of the total number of seats reserved under clause (1) shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes. Clause (3) of the Article 243T provides that not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Municipality. Clause (4) of the Article provides that the offices of Chairpersons in the Municipalities shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislature of the State may, by law provide. Further, clause (5) says that the reservation of seats under clauses (1) and (2) and reservation of offices of Chairpersons (other than the reservation for women) under clause (4) shall cease to have effect on the expiration of the period specified in Article 334, Clause (6) provides that nothing in Part IXA shall prevent the Legislature of a State from making any provision for reservation of seats in any Municipality or offices of Chairpersons in the Municipalities in favour of backward class of citizens.
19. The constitutional mandate under Article 243U is that every Municipality, unless sooner dissolved under any law for time being in force, shall continue for 5 years from the date appointed for its first meeting and no longer and election to a Municipality shall have to be completed before the expiry of the 5 years period stipulated in clause (1) of Article 243U and in case of dissolution, the new body shall be constituted before expiration of a period of 6 months from the date of its dissolution by conducting elections. The proviso to sub-clause (3) of Article 243U provides that it shall not be necessary to hold any election under this clause if remainder of the period for which the dissolved Municipality would have continued is less than 6 months.
20. Section 10 of the Act provides that every Municipal Council, unless sooner dissolved, shall continue for 5 years from the date appointed for its first meeting and no longer. It has also been provided that the first meeting shall be convened as soon as possible and in no case later than 6 months from the date on which the election of the members is notified by the State Election Commission.
21. Section 24 of the Act provides that an election to constitute Municipal Council or Town Council shall be completed before the expiry of its duration and before the expiry of a period of 6 months from the date of its dissolution and that the first election to a Municipal Council or Town Council shall be held within a period of 6 months from the date of its constitution.
22. Though Sections 10 and 24 of the Act are in consonance with the constitutional scheme as envisaged under Article 243U of the Constitution of India, the Act, as, enacted in 2001, did not contain any provision with regard to reservation of seats in Municipalities in tune with Article 243T of the Constitution and only by insertion of Section 23A by the Amendment Act of 2006, provision for reservation of seats in Municipalities for Scheduled Castes, Scheduled Tribes and women, has been made. Sub-section (25A) was also inserted in Section 2 of the Act to define Municipality to mean a Municipal Council or a Town Council. Section 23A, which was published in the Nagaland Gazette Extra Ordinary dated 13-9-2006, reads as under :
"23A. Reservation of seats in Municipalities.
(1) Seats in every Municipality shall be reserved for the Scheduled Castes, Scheduled Tribes and women, including women from the Scheduled Castes and the Scheduled Tribes, in accordance with the provisions contained in clauses (1) to (3) of Article 243-T of the Constitution.
(2) Within 90 days from the commencement of this Amendment Act, the Government shall notify in the official gazette the number of seats in every Municipality that ought to have been reserved for the categories of persons included in clause (1) in the first elections to the Municipalities held in the State in December, 2004.
(3) Within 180 days from the commencement of this Amendment Act, the Government shall notify in the official gazette the allotment of seats to be reserved for the categories of persons included in clause (1) by rotation to different wards in a Municipality.
(4) All members not belonging to the Scheduled Castes and the Scheduled Tribes who were directly elected from those wards in the Municipalities which have become reserved for the Scheduled Castes and the Scheduled Tribes, and all male members who were directly elected from those wards in the Municipalities which have become reserved for women, including women belonging to the Scheduled Castes and the Scheduled Tribes, under clauses (1) to (3) of Article 243-T of the Constitution, shall be deemed to have vacated their seats upon notification of the reservation of seats under clause (3).
(5) Upon vacation of seats under clause (4), the Government shall constitute, under Article 243-S (5) of the Constitution, by notification, as many number of single member Committees as are equal, to the number of such members who have vacated their seats, and designate them as Chairman of such Committees with specific functions. The Chairman so designated shall thereupon be deemed to have become members of the respective Municipality under Article 243-R (2) (a) (iv) of the Constitution.
(6) The provisions contained in clauses (4) and (5) shall cease to have effect with the dissolution of the Municipalities constituted out of the first elections to the Municipalities held in December, 2004."
23. Elections, open, free and fair, are the essence of democracy, the inescapable sine qua non. It in this context, the importance of holding elections to Panchayats, Municipal bodies cannot be over emphasized. It is incumbent upon the Election Commission and other authorities to carry out the mandate of the Constitution and to ensure that Municipal Councils and Town Councils are constituted by holding elections in time in accordance with the Constitutional scheme.
24. In terms of Articles 243K and 243ZA(1), the same powers are vested in the State Election Commission as the Election Commission of India. The State Election Commission is to function independent of State Government concerned in the matter of its power of superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Municipal Councils and Town Councils. The words 'superintendence, direction and control' have been held to be in the widest amplitude and in the broadest of terms by the Apex Court in a number of judgments. The Supreme Court in Kishansing Tomar (AIR 2007 SC 269) (supra), in paragraph 22 stated thus :
"22. In our opinion, the entire provision in the Constitution was inserted to see that there should not be any delay in the constitution of the new municipality every five years and in order to avoid the mischief of delaying the process of election and allowing the nominated bodies to continue, the provisions have been suitably added to the Constitution. In this direction, it is necessary for all the State Governments to recognise the significance of the State Election Commission, which is a constitutional body and it shall abide by the directions of the Commission in the same manner in which it follows the Election Commission of India during the elections for Parliament and the State Legislatures. In fact, in the domain of elections to the panchayats and the municipal bodies under Part IX and Part IX-A for the conduct of the elections to these bodies they enjoy the same status as the Election Commission of India.
25. In the aforesaid case, in paragraph 27, the Apex Court held thus :
"27. Article 243-K(3) also recognises 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 by clause (1)’. It is accordingly to be noted that in the matter of the conduct of elections, the Government concerned 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."
26. On 16-11-2009, a Notification was issued by the Secretary to the Government of Nagaland, Urban Development Department, in pursuance of Section 23A of the Amendment Act of 2006, reserving the number of wards for Scheduled Castes, Scheduled Tribes and women in the 3 Municipal Councils and 16 Town Councils in the State as indicated in the annexure to the said Notification. On the same date, another Notification was issued allotting the wards to be reserved for Scheduled Castes, Scheduled Tribes and women in the Municipal Councils and Town Councils as indicated in the annexure to the said Notification.
27. After the Secretary to the Government of Nagaland, Urban Development Department had issued the Notification dated 17-11-2009 directing that general elections to constitute the Municipal Councils and Town Councils in the State are to be held as per the schedule indicated against each Municipal Councils and Town Council in the annexure thereto, it would appear that All Nagaland Municipal and Town Council Forum had submitted a representation praying for postponement of the elections stating that the Act needs to be revisited and reviewed and that 33% women reservation issue would create confusion. It had also submitted another representation seeking extension of its tenure by suitably amending the Act. From the speech of the Minister, Urban Development, annexed as Annexure 'C’ to the writ petition, it would appear that the issues were given a look at the appropriate level and it was concluded that the Act as well as the Amendment of 2006 are valid in law. Opinion was also expressed that the reservation of certain sections of society to the Amendment Act, 2006, on the touchstone of Article 371A(1) of the Constitution of India, is misplaced.
28. It would be appropriate to note that Article 371A provides special provision with respect to the State of Nagaland to the effect, amongst others, that notwithstanding anything in the Constitution, no Act of Parliament in respect of (i) religious or social practice of the Nagas, (ii) Naga customary law and procedure, (iii) Administration of civil and criminal justice involving the decisions according to Naga customary law, (iv) ownership and transfer of land and its resources, shall apply to the State of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides. It is needless to state that no Act of Parliament is involved in the instant case and the Act and the Amendment Act of 2006 containing reservation of, amongst others, women, in Section 23A, flows from the provisions contained in the Constitution of India.
29. Section 83 of the Act provides for appointment of Administrators in special or emergent situation. Sub-section (1) of Section 83 provides that notwithstanding anything contained in this Act, where due to certain special, emergent or unforeseen circumstances, election to a Municipal council cannot be held or completed before the expiry of its duration specified in Section 10 or before the expiry of a period of 6 months of its dissolution, the Government may, by Notification, appoint a Government Officer to be known as Administrator to exercise, perform and discharge the powers, duties and functions of a Municipality subject to such directions as may be given in this behalf by the Government.
30. It is about time the reasons for postponing the election by the Cabinet in its meeting held on 16-12-2009 is considered. On a bare perusal of the Cabinet decision as contained in the Office Memorandum, dated 21-12-2009, it would appear that the decision to indefinitely postpone the election to the Municipal Councils and Town Councils was taken on the basis of 3 considerations and these are :
(i) In view of the delicate situation in the State, and ongoing reconciliation and peace process in the State, there is need to maintain harmony in the society;
(ii) The Municipal Councils and Town Council elections have the potential to create tension and undesirable situations in the State;
(iii) The Committee of Secretaries appointed to look into the shortcomings of Municipal Act, 2001 and to suggest remedial measures, is yet to submit its report to the Government.
31. The Apex Court in Kishansing Tomar (AIR 2007 SC 269) (supra) in paragraph 21 had laid down as follows :
"21. It is true that there may be certain man-made calamities, such as rioting or breakdown of law and order, or natural calamities which could distract the authorities from holding elections to the municipality, but they are exceptional circumstances and under no (sic other) circumstances would the Election Commission be justified in delaying the process of election after consulting the State Government and other authorities. But that should be an exceptional circumstance and shall not be a regular feature to extend the duration of the municipality. Going by the provisions contained in Article 243-U, it is clear that the period of five years fixed thereunder to constitute the municipality is mandatory in nature and has to be followed in all respects. It is only when the municipalities is dissolved for any other reason and the remainder of the period for which the dissolved municipality would have continued is less than six months, it shall not be necessary to hold any elections for constituting the municipality for such period."
32. The Apex Court in Kishansing Tomar (supra) had also quoted with approval paragraph 151 of the judgment rendered in Special Reference No.1/2002, in re, reported in (2002) 8 SCC 237 : (AIR 2003 SC 87) which is as follows :—
"151. The impossibility of holding the election is not a factor against the Election Commission. The maxim of law impotentia excusat legem is intimately connected with another maxim of law lex non cogit ad impossibilia. Impotentia excusat legem is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. 'Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over it, there the law will in general excuse him.' Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like an act of God, the circumstances will be taken as a valid excuse. Where the act of God prevents the compliance with the words of a statute, the statutory provision is not denuded of its mandatory character because of supervening impossibility caused by the act of God. (See Broom's Legal Maxims, 10th Edn., at pp. 1962-63 and Craies on Statute Law, 6th Edn. p. 268) These aspects were highlighted by this Court in Special Reference No.1 of 1974. Situations may be created by interested persons to see that elections do not take place and the caretaker Government continues in office. This certainly would be against the scheme of the Constitution and the basic structure to that extent shall be corroded."
33. The circumstances which weighed upon the Cabinet to postpone the elections cannot be said to be exceptional circumstances or special, emergent and unforeseen circumstances, which alone can distract the authorities concerned from holding elections. Issue of reservation of seats for women in Municipal Councils and Town Councils and the ongoing peace process in the State have, if at all, a tenuous link. There was no material before the Cabinet that if elections are held there will be break down of law and order in the State. Shortcomings of the Act, if any, and awaiting for suggested remedial measures is too fragile a ground to postpone elections in the face of the constitutional requirements and the law laid down by the Apex Court. The flavour of the consultative committee meetings which have been held after the impugned Cabinet decision was taken is that of a healthy debate. Citizens of our country, undoubtedly, have the fundamental right to freedom of speech and expression subject to reasonable restrictions that may have been imposed by law under Article 19(2) of the Constitution of India. When, citizens deliberate, they exchange views and debate their supporting reasons concerning public political questions, but rule of law has to reign supreme. The Chief Minister of the Government of Nagaland, while delivering a key note address on 8-10-2010 on the issues of, amongst others, "Municipal Election and Women Reservation", had stated as follows :
"There is a commonly held view amongst some Nagas that traditionally women do not have any role in public governance in Naga society. However, it is also gratifying to note that many enlightened people in the State no longer subscribe to this view. In modern times, societies which do not accord an equitable and honourable status to their women are considered to be backward, undeveloped or even primitive. It is my view that as long as we want to have municipal bodies in our towns and cities in accordance with the relevant Act, reservation for women cannot be done away with. It needs to be clearly understood that ULBs and reservation for women come in one package, and cannot be separated now in view of the constitutional provisions already mentioned before……….."
34. As the decision of the Cabinet dated 16-12-2009 based on the circumstances and considerations as reflected therein does not meet the rigorous standard of invincible disability, and exceptional circumstances which alone could have justified postponement of election, the impugned decision of the Cabinet dated 16-12-2009 and the Notification dated 11-1-2010 cannot be sustained in law and accordingly, the same are set aside and quashed.
35. The respondent authorities will now be required to hold election to the Municipal Councils and Town Councils in accordance with law with reservation of seats for women as required under Article 243T of the Constitution of India and Section 23A of the Amendment Act, 2006. The final approval of the Census Operation of 2011 is yet to be given by the Central Government. The elections have been long overdue and, therefore, there cannot be any justification to hold the elections after revision of electoral rolls and delimitation of wards based on the final Census Report of 2011, as had been alternatively argued by the learned Additional Advocate General. The State Election Commission in its letter dated 26-11-2009, addressed to the Secretary to the Government of Nagaland, Urban Development Department, had indicated that a minimum of 35 days excluding holidays would be required for conducting election to the Municipal Councils and Town Councils. The letter also reflects that the Commission had decided to go for revision of electoral rolls starting from 30-11-2009 up to 29-12-2009, on which date final revised electoral rolls were to be published. As the State Election Commission in its affidavit had stated that electoral rolls of all the Municipal Councils and Town Councils except Mokokchung Municipal Council had not been revised or updated since 2004, it will be necessary to go for revision of electoral rolls. From the letter dated 26-11-2009, it appears that a period of one month would be required for such revision of electoral rolls. In the affidavit, the Commission had also stated that it needs at least 7 days' time for making preparatory arrangements to hold the elections.
36. Considering the matter in its entirety, the Respondents are directed to hold the election to the Municipal Councils and Town Councils and to complete the entire process on or before 20-1-2012. The State Election Commission had pleaded that the State Respondents had not responded to the communications sent by the Commission. In that view of the matter, the State Respondents are directed to render full assistance and co-operation to the State Election Commission and respect the latter's assessments of the needs and requirements in order to ensure that free and fair elections are conducted.
37. Notwithstanding the fact that this Court has set aside the Notification dated 11-1-2010, the Administrators appointed to perform and discharge the functions of the Municipal Councils and Town Councils shall continue to perform and discharge such duties until elections are held in terms of this judgment and order.
38. The writ petition is allowed to the extent indicated above.
39. No costs.