Local Body Elections Can Be Held Without Completing 'Triple Test Formalities' For Identifying OBC Seats: Jharkhand High Court

The Jharkhand High Court in a significant judgement has observed that non-completion of the 'triple test formalities' for identifying seats to be reserved for OBC category is not at all a ground to defer or delay election of local self-governmentJustice Ananda Sen observed, “the Hon'ble Supreme Court directed that the Election should be notified even if the “triple test formalities” has not yet been completed. From the aforesaid judgment, the issue has been set at rest and now as per the judgment, it is not sine qua non to conclude the “triple test formalities” before holding elections for a local body.”“It is thus clear that elections can be held even if “triple test formalities” is under process and/or has not yet been completed. Non-completion of the “triple test formalities' for identifying seats to be reserved for OBCs is not at all a ground to defer or delay election of local self-government,” Justice Sen added.The above ruling came in a set of two writ petitions whereby the petitioners sought a direction upon the respondents to notify the election of Municipal Corporation, Municipality and Nagar Panchayat.[For context, in the Vikas Kishanrao Gawali case, the Apex Court had noted that a triple test is to be followed before provisioning reservation for the OBC category. The said triple test involves:(1) setting up a dedicated Commission to conduct a contemporaneous rigorous empirical inquiry into the nature and implications of the backwardness qua local bodies, within the State;(2) specifying the proportion of reservation required to be provisioned local body-wise in light of recommendations of the Commission, so as not to fall foul of overbreadth; and(3) not exceeding an aggregate of 50 percent of the total seats reserved in favour of SCs/STs/OBCs taken together.]In the first petition, the petitioner sought for a mandamus directing the State to immediately and forthwith notify election process for Nagar Panchayat, Jamtara, as the term of Nagar Panchayat, Jamtara was to expire in May 2023. Further prayer was made that if the elections are not notified and could not be held before the expiry of the term of the Nagar Panchyat, the seating members be allowed to function till the fresh elections are held. A prayer has also been made by way of amendment to quash the order by which, after expiry of the term of Nagar Panchayat, Jamtara, Administrator has been appointed. In the second petition, the petitioner sought for a direction to hold election of Ranchi Municipal Corporation in view of the mandate under Article 243(U) of the Constitution of India and also in terms of Section 16(4) and 20 of the Jharkhand Municipal Act, 2011, since five years term of the elected body has already expired on 27.04.2023. Further prayer has been made to quash the Notification No. 1680 dated 28.4.2023, issued by respondent No. 4 whereby administrator has been appointed for administering the activities of the municipality, after expiry of the term of the elected membersAfter hearing the parties and considering their submissions, the Court observed that Part IX-A of the Constitution of India deals with Municipalities. The Court further observed that Article 243(Q) of the Constitution deals with the constitution of municipalities. Article 243(R) provides for composition of municipalities. The Court noted that as per the said provision, all seats in municipalities shall be filled by persons chosen by direct election from the territorial constituencies in the municipal area and for which municipal area shall be divided into territorial constituencies to be known as wards.The Court further noted, “Thus from the aforesaid provisions of the Constitution, it is quite clear that municipality must consist of elected persons. This process is democratic as the seats are to be filled up by persons chosen by direct election from the territorial constituencies in the municipal area. This democratic process is the life line of the country, which cannot be throttled.”“Any delay in election or deferring the same on frivolous grounds amounts to destroying democracy. The State by no stretch of imagination can delay this democratic process, especially when the State Election Commission has already recommended for holding such election. It is the constitutional mandate to hold such election and no one can defy the same even by indirect means,” the Court added.The Court while placing reliance on the judgement in the case of Suresh Mahajan Vs. State of M.P. reported in (2022) 12 SCC 770 clarified that it is the sacred constitutional duty of the State Election Commission to recommend for holding of Election in the Municipal Corporation, Municipalities and Nagar Panchayat, not only for Ranchi Municipal Corporation and Jamtara Nagar Parishad, but also for all the other Municipalities, within the State of Jharkhand, whose term has come to an end.The Court held that the Government cannot sit over the recommendation of the State Election Commission and...

Local Body Elections Can Be Held Without Completing 'Triple Test Formalities' For Identifying OBC Seats: Jharkhand High Court

Bhavya Singh

Tags