-Mahek Shah
-UPES
Facts:
In this instance, the SEC’s knowledgeable lawyer, Mr. Joshi, acknowledged that the director had broken the constitution by failing to set aside a minimum of one-third of the seats in the municipal councils of Mapusa and Mormugao for women. He maintained that the directors have authority over the reservation issue, so regardless of any constitutional or legal violations, the SEC is required by law to hold timely elections, so it must carry out the elections using the contentious order that was issued on February 4, 2021.
However, the top court determined that the respondent’s strategy, in disregarding state and constitutional legislation designating seats for women, was illegal. The SEC was chastised by the court for its inactivity, saying that as an independent body, it ought to have stepped in sooner to guarantee constitutional compliance instead of rushing through with the election plan.
The learned advocate general’s argument about the lack of a policy was acknowledged by the court as well. The learned advocate general pointed out that the lack of a policy has resulted in an unjustifiable and arbitrary rotation of seats in various municipal councils. This is an example of a circumstance where the legislative mandate is disregarded, especially when it comes to women’s reservations. The petitioners did not bring up worries about OBCs, but the court brought this up to show how state legislative norms have generally been disregarded.
The Court chastised the SEC further for its perceived weakness, emphasizing that it should act swiftly as an independent body upon discovering any violation. Rather than quickly releasing the election calendar, the SEC ought to have instructed the Director to rectify the action in order to adhere to the constitutional mandate.
The Advocate General’s claim that arbitrariness is not always the result of a lack of policy was also accepted by the Court. The court did note that the lack of a policy had led to an unreasonable and capricious switching of seats amongst municipal wards. Women’s reservations provide a prime illustration of this problem. Similarly, this disregard for state legislative directives also harmed the OBC reservations, even though the petitioners did not bring them up.
Furthermore, the court rejected the director’s rationale of fulfilling the constitutional or statutory requirements over three installments spanning 15 years as an unacceptable and legally unfounded justification. The court declared that this reasoning had no basis in the constitution or relevant laws, making it neither legal nor understandable. Consequently, the court determined that upholding the order of February 4, 2020, was impossible.
Issue-
The Supreme Court on the date of 04/03/2021 had issued notices to the state election commission and Fouziya Imtiaz Shaikh, a petitioner in the High Court who had filed a caveat to prevent any ex-party order.
Contentions-
The representative for the State Election Commission (SEC) acknowledged that the director had failed to ensure that one-third of the seats in the Mormugao and Mapusa Municipal Councils were reserved for women. She admitted that this reservation was necessary, but explained that due to the COVID-19 pandemic and the contested order, the SEC was compelled to proceed with the elections in a timely manner.
The Bombay High Court in Goa firmly ruled that reservations for women, as mandated by the constitution and state elections, are critical. Consequently, the actions taken by the defendant violated the law. The court emphasized that the SEC should amend and rectify any illegalities it identifies and provide proper guidance to the director. Instead of rushing to schedule elections, the SEC should ensure compliance with constitutional mandates.
Furthermore, the court criticized the director’s justification for the violation, which involved fulfilling the constitutional requirement in three installments over 15 years. The court found this approach to be a baseless attempt to justify a significant constitutional breach, lacking any legal foundation or reasonableness.
Provisions of law-
Article 226 of the Constitution of India: Powers of High Courts to Issue Certain Writs
1. General Authority: Article 226 grants every High Court the authority to issue directives, orders, or writs within its jurisdiction. This power is applicable to any individual or authority, including government entities, within the territory over which the High Court has jurisdiction. These writs include:
Habeas Corpus: A writ requiring a person under arrest to be brought before a judge or into court.
Mandamus: A writ issued to compel a public authority to perform a duty that it is legally obligated to complete.
Prohibition: A writ directing a subordinate to stop doing something the law prohibits.
Quo Warranto: A writ questioning the right of a person to hold a particular public office.
Certiorari: A writ issued by a superior court to review the legality of a decision made by a lower court or tribunal.
2. Enforcement of Rights and Other Purposes: These writs can be issued not only for the enforcement of the fundamental rights outlined in Part III of the Constitution but also for any other purpose deemed necessary.
Non-Derogation of Supreme Court Powers The authority granted to the High Courts by Article 226(1) does not diminish the power conferred upon the Supreme Court by Article 32(2). Article 32(2) allows the Supreme Court to issue similar writs for the enforcement of fundamental rights. This means that the powers of the High Courts under Article 226 operate alongside and do not undermine the powers of the Supreme Court.
Judgment-
In response to a plea from the state of Goa, which was contesting an order issued by the Bombay High Court in Goa on March 1, 2021, the Supreme Court postponed making a ruling. Five municipalities had their election notices revoked and set aside by this order. Judges Rohinton Fali Nariman, B. R. Gavai, and Hrishikesh Roy made up the three-judge panel that deferred deciding on the high court’s decision to annul the election notification for Margao, Mapusa, Mormugao, Sanguem, and Quepem municipalities. After that, the Supreme Court mandated that written responses be submitted by March 12, 2021.
The State Election Commission (SEC) and Fouziya Imtiaz Shaikh, a party to the high court that had filed a caveat to preclude any ex parte order, received notifications from the Supreme Court on March 4, 2021. The Court stated that the SEC notification and the high court’s directives were issued in accordance with the ruling of the high court following the arguments made by Mr. Tushar Mehta, the petitioner’s knowledgeable Solicitor General, Mr. Atmaram N.S. Nadkarni, the senior advocate for respondent no. 1, and Mr. Abhay Anil Anturkar, the counsel for respondent no. 2.
The Bombay High Court nullified the elections in five municipalities because the SEC had not reserved wards for women as required by law, although allowing the SEC to continue with the electoral process in the remaining municipalities. Elections in the five municipalities that had been postponed might now proceed thanks to the Supreme Court’s decision to review.
In relation to the municipal councils of Sanguem, Mormugao, Mapusa, Margao, and Quepem, the Bombay High Court’s ruling stipulated that the disputed order dated February 4, 2021, issued by the Director and Ex Officio Additional Secretary, Municipal Administrator/Urban Development, Goa, was to be annulled. The Goa Municipalities Act, 1968’s Sections 9(1) and 10(1) mandated that the Director and Additional Secretary Ex Officio, Municipality/Urban Development, Goa, publish a new notice. The court gave them 10 days to comply. At least one-third of the seats up for direct election to local councils must be set aside for women under the terms of this new notice.
The Supreme Court of Goa affirmed that the consent of the governed is the source of the government’s authority in a democracy, underscoring the significance of elections as a basic component of democratic governance. The main means of converting this consent into governmental power is through free and fair elections. The court emphasized that free and fair elections are the foundation of democracies, and India, being the largest democracy in the world, need such an electoral process.
Conclusion
In this case, the learned counsel for the parties presented their arguments regarding the merits of the writ petition and the legality of the order dated January 18, 2019. However, the Court has chosen not to delve into these issues at this stage, as the writ petition is still under consideration by the High Court.The Supreme Court observed that the High Court’s modification, made in the form of an ad-hoc interim arrangement by the impugned order dated October 4, 2019, exceeded its jurisdiction. The Court emphasized that such modifications are beyond the scope of judicial review powers under Article 226 of the Constitution. It is a well-established principle that interim orders should not typically grant final relief.
Consequently, the appeal was successful and allowed. The Supreme Court quashed and set aside the High Court’s order dated October 4, 2019. It clarified that the Writ Petition No. 8242 of 2019 should be decided independently, based on its own merits and in accordance with the law, without being influenced by the Supreme Court’s observations in this present order. The Court did not award any costs.
Reservation is a fair principle in India, aimed at addressing long-standing discrimination against marginalized sections of society through affirmative action. However, it can also create resentment among groups that do not receive these benefits. When increasing numbers of people seek to be classified as backward rather than forward, it can lead to societal stagnation.