w w w . L a w y e r S e r v i c e s . i n



John Joseph, Advocate, Chairman Voters Alliance, Ernakulam v/s State of Kerala, Represented by Secretary, Department of Local Self Government, Thiruvananthapuram & Others


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    WP(C). No. 17025 of 2020 (S)

    Decided On, 08 September 2020

    At, High Court of Kerala

    By, THE HONOURABLE CHIEF JUSTICE MR. S. MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P. CHALY

    For the Petitioner: John Joseph, Party In Person. For the Respondents: R1, K.V. Sohan, State Attorney, R2, Murali Purushothaman, SC.



Judgment Text

1. The captioned public interest writ petition is filed by a practising advocate of this Court and stated to be a social activist and presently the Chairman of a voluntary movement called Voters' Alliance constituted in 2016, with the objective of applying the organised power of voters to re-establish value based politics which is a valuable right of the voters. The contentions put forth by the petitioner are founded on the 73rd and 74th amendments of the Constitution of India dealing with the Panchayats and the Municipalities, which inserted part 1X and 1XA in the constitution of India. The thrust of the contention advanced is that , by incorporating the Panchayats as well as Municipalities in the Constitution of India, the Parliament intended to give absolute power and freedom to the Panchayats and the Municipalities to carry on with the activities without juncture of the formalities and the prescriptions contained under any of the statutes and therefore, the State Government was duty bound to make necessary rules and scheme to provide symbol to the candidates contesting the elections of the Local Self Government Institutions in the State of Kerala, without relying upon any order/ rules of the Government of India in the matter of allocation of symbols to organised political parties and allocate symbols de horse the restrictions contained there under.2. The material aspects put forth by the petitioner are that, a programme of action to persuade and compel the leadership of political parties to put up persons with integrity and character and who are not corrupt as candidates in elections to the Local Self Government Institutions; a programme of action to persuade the government to fulfil the promises that were incorporated in the election manifesto of the political front which is voted to power and a programme to raise the voice of the voters and to build public opinion demanding the Parliament to suitably amend the Representation of People Act, 1951 to bring about reforms in the election process with a view to have inexpensive and model elections to the Parliament and State Legislative Assemblies.3. According to the petitioner, the first two programmes specified above have started yielding results and the 3rd programme of action is pursued on a long term basis. With the aforesaid facts, petitioner seeks to quash Such of the provisions of the Kerala Panchayat Raj (conduct of elections) Rules, 1995 and the Kerala Municipality(conduct of elections) Rules,1995,hereafter discussed, promulgated by the State of Kerala under the Kerala Panchayat Raj Act, 1994 and the Kerala Municipality Act, 1994, since according to the petitioner, such provisions are ultravires the provisions of the enabling principle statutes and also opposed to the intention of the Parliament in effecting the 73rd and 74th constitutional amendments based on which the Kerala Panchayat Raj Act, 1994 and the Kerala Municipality Act, 1994 were enacted. The predominant contention of the petitioner is that those amendments were intended to confer constitutional status to the Local Self Government Institutions and to remove certain defects or failures of the local authorities. In order to drive home the said point, the significant contentions advanced by the petitioner are as follows:4. That the objects and reasons of the 73rd and 74th amendment of the constitution indicate that; Though the Panchayat Raj Institutions have been in existence for a long time, it has been observed that these institutions have not been able to acquire the status and dignity of viable and responsive peoples' bodies due to a number of reasons including absence of regular elections, prolonged super-sessions, insufficient representation of weaker sections like Scheduled Castes, Scheduled Tribes and women, inadequate devolution of powers and lack of financial resources.5. Article 40 of the Constitution which enshrines one of the directive principles of state policy lays down that the state shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government. In the light of the experience in the last forty years and in view of the short-comings which have been observed, it is considered that there is an imperative need to enshrine in the Constitution certain basic and essential features of Panchayat Raj institutions to impart certainty, continuity and strength to them.6. That in many States local bodies have become weak and ineffective on account of a variety of reasons including the failure to hold regular elections, prolonged super-sessions and inadequate devolution of powers and functions. As a result, Urban Local Bodies are not able to perform effectively as vibrant democratic units of self-government.Having regard to these inadequacies, it is considered necessary that provisions relating to Urban Local Bodies are incorporated in the Constitution particularly for(i) Putting on a firmer footing, the relationship between the State Government and the Urban Local Bodies with respect to (a) the functions and taxation powers and; (b) arrangements for revenue sharing;(ii) Ensuring regular conduct of elections;(iii) Ensuring timely elections in the case of super-session; and(iv) Providing adequate representation for the weaker sections like Scheduled Castes, Scheduled Tribes and Women.”7. Further,it is submitted, in the Statement of Objects and Reasons of the Amendments mention about the addition of a separate part in the Constitution to deal with the Panchayat Raj institutions and the Urban Local Bodies and also give indications about the administrative set up that is contemplated for both of them.8. That the Constitutional amendments visualise local bodies as being free of all influences including party politics having a tendency to divide people. The pattern of election to and the mode of governance of the local bodies contemplated in the amendments are aimed at achieving this objective. The mechanism provided for at the lowest level of governance in both the panchayath and the municipality is at the ward level and includes all voters in the ward irrespective of political considerations. In the Constitution, a ward sabha is provided for both the panchayath and the municipality. In the Model Panchayat Raj Act circulated by the central government among states to serve as a sample to help them enact state statutes, ward sabha is shown as the lowest level mechanism. In the Model Act, the grama sabha is shown as a body that includes all the voters of a panchayath and it is given certain functions and roles. In the Panchayat Raj act enacted in Kerala, grama sabha is shown as the body constituted at the ward level.9. Coming to the Panchayath Committee and the Municipal Council, there is no provision to have a ruling faction and an opposition. There is also no provision for electing either a leader for the ruling faction or an opposition leader. Election of the president of a panchayath and the chairperson of a municipality is carried out in a meeting in which all elected members from the wards participate. After electing the president/chairperson and the vice president/vice chairperson, standing committees are constituted. The law provides that every elected member from the ward shall be a member in any of the standing committees. It is the standing committee that takes decisions in subjects that fall under the jurisdiction of the respective standing committee. It means that every elected member is part of the governance as if he is part of the ruling faction in the conventional sense. Every standing committee is to have a chairperson and sometimes the chairperson of a standing committee may be a person belonging to the opposition as things stand today. This again points to the fact that law does not see members of the Panchayath Committee or the Municipal Council with any distinction as to ruling faction or opposition. Law also provides for a steering committee to provide general leadership in administration. The steering committee in the case of a panchayat consists of the president and the vice-president of the panchayath and the chairpersons of the various standing committees and in the case of a municipality consists of the chairperson and the vice chairperson of the municipality, and the chairpersons of the various standing committees.10. An objective evaluation of the mechanism of governance contemplated and provided for in the constitutional amendments and the Panchayat Raj and Municipality statutes will go to show that party politics is not officially recognised to play any role in elections to local bodies or in the governance. The Parliament has given the reasons for choosing such an option in the statement of objects and reasons of both the amendments. Two of the reasons mentioned in the statement of objects and reasons for the constitutional amendments are absence of regular elections and prolonged super-sessions. Both the reasons pertain to illegal moves that are undertaken by political parties to protect party interests. According to the petitioner it is to avoid such drawbacks that the constitutional amendments have provided for elections and governance, free of party politics.11. The factual matrix so far presented, in the estimation of the petitioner, will go to show that political parties are duly recognised and distinct roles are assigned to them in parliamentary democracy. However, in the set up provided for local bodies, the Constitution does not assign any particular role to political parties because political parties are not recognised as relevant in the election to the local self institutions. It is not that political parties are specifically barred or that persons belonging to political parties may not contest in local body elections. Politicians may contest in their individual name but not in the name of the party. The political party may support him but the official mechanism will not confer any privilege to such contestants.12. It is submitted that the Kerala Legislative Assembly passed the Kerala Panchayat Raj Act, 1994 and the Kerala Municipality Act, 1994 in tune with the provisions and the objects of the constitutional amendments. However, when it promulgated the Election Rules, it incorporated a few provisions to circumvent the objects and intention of the Parliament expressed in the constitutional amendments. It provides that contestants belonging to political parties shall be assigned the same symbols assigned by the Election Commission of India to the party to which he/she belongs. It further provides that to contestants belonging to the same political party, the same symbol shall be allotted, as far as possible throughout the State.13. It is submitted that a comparison of the constitutional provisions in the matter of constituting the Union Ministry and the State Ministries with the provisions in the constitutional amendments providing for local bodies will make clear the distinction and the peculiarity that are conferred on the local bodies. Needless to say, in the case of Parliament and Legislative Assembly, a ruling faction and an opposition are provided for. The majority ruling faction elects its leader and the opposition elects the opposition leader. The leader of a ruling faction is invited by the President/Governor to form the Ministry. He/she announces the ministers who are chosen only from the ruling faction. Nobody from the opposition is included in the Ministry. The ruling faction and the op position sit as separate blocks and they are assigned separate functions. It is submitted that this is the framework adopted in parliamentary democracy.14. Therefore, it is submitted that the provisos to sub rule (1) of Rule 12(1) in both the Kerala Panchayat Raj (Conduct of Election) Rules, 1995 and the Kerala Municipality (Conduct of Election) Rules, 1995 which direct that, to contestants of political parties, symbols assigned by the Election Commission of India shall be assigned, are ultra vires the power conferred on the legislature by the provisions of the principal statutes and therefore illegal and liable to be struck down. Similarly, the Sub-clauses 1A and 1B in both the rules are also ultra vires the power conferred on the legislature by the principal statutes and therefore illegal, and liable to be struck down. The 1st respondent has promulgated the impugned rules with the intention of circumventing the principal statute and also the constitutional amendments. As the impugned provisions offer prominence to contestants belonging to political parties, it is in the interest of all political parties. Naturally, none of the political parties came forward to question or to challenge the impugned provisions. It is submitted that in India, political parties are identified more by their symbols than their names. It is for this reason that the proviso lays down that party symbols shall be allotted. The same reason necessitates that the proviso shall not be allowed to stand and remain in the statute. For this reason, the provisos mentioned above and the other connected provisions in the rules which are incorporated as continuation to the provisos are liable to be struck down. With the above backdrop, the following reliefs are sought for by the petitioner:“I) Declare that the proviso to Rule 12 (1) of the Kerala Panchayat Raj (Conduct of Election) Rules, 1995 and sub-rules 12(IA) and (iB) extracted below are ultra vires“Kerala Panchayat Raj (Conduct of Election) Rules, 199512. Symbols – (1)...... Provided that the candidates belonging to political parties shall be assigned the same symbols assigned by the Election Commission of India [Provided further that in the case of candidates belonging to political party to which Election Commission of India has not assigned symbol, such candidate shall be assigned symbols from the list of symbols published under sub-rule (1) in the order of preference noted by them][(1A) In the case where a political party recognised by or registered with the Election Commission of India is split into two or more political parties and each of such party raises claim for the same symbol assigned by the Election Commission of India or for which eligible for preference as per the second proviso to sub-rule (1), the State Election Commission shall not assign such symbol to the candidates belonging to those parties and shall assign one symbol each from the symbols notified under sub-rule (1) to the candidates belonging to each such party.(iB) In the case where symbol can be assigned to candidates belonging to a political party on preference as per the second proviso to sub-rule (1) the State Election Commission shall; as far as possible, assign the same symbol to candidates throughout the State belonging to that political party]ii) Declare that the proviso to Rule 12 (1) of the Kerala Municipality (Conduct of Elections) Rules 1995 and Sub-rules 12(IA) and (IB) extracted below are ultra vires;“Kerala Municipality (Conduct of Elections) Rules 199512. Symbols – (1) Provided that the candidates belonging to political parties shall be assigned the same symbols assigned by the Election Commission of India [Provided further that in the case of candidates belonging to political parties to which Election Commission of India has not assigned symbol, such candidate shall be assigned symbols from the list of symbols published under sub-rules (1) in the order of preference noted by them.[(1A) In the case where a political party recognised by or registered with the Election Commission of India is split into two or more political parties and each of such political party arises claims for the same symbol assigned by the Election Commission of India or for which eligible for preference as per the second proviso to sub-rule (1), the State Election Commission shall not assign such symbol to the candidates belonging to those parties and shall assign one symbol each from the symbols notified under sub-rule (1) to the candidates belonging to each such party.[(1B) In the case where symbol can be allotted to candidates belonging to a political party on preference as per the second proviso to sub-rule (1), the State Election Commission shall, as far as possible, assign the same symbol to candidates throughout the State belonging to a political party on preference as per the second proviso to sub-rule (1), the State Election Commission shall, as far as possible, assign the same symbol to candidates throughout the State belonging to that political party]iii) To issue any other writ, order or direction as the Hon'ble Court may deem fit in the facts and circumstances of the case.”15. A statement is filed for and on behalf of the Kerala State Election Commission refuting the contentions, and denying the allegations raised. Among other contentions it is submitted that the existence of political parties is implicit in the nature of the democratic form of Government, and the democracy at the grass root level prescribed by the 73rd and 74th constitutional amendment did not prohibit political parties or elections on political lines.Other contentions based on the provisions of the Constitution of India and the laws relating to self Government institution are also advanced, which would be discussed later.16. We have heard the petitioner, Sri John Joseph appeared in person, Sri.K.V.Sohan learned State Attorney, and Sri Murali Purushothaman appeared for the State Election Commission and perused the material on record.17. The paramount contention advanced by the learned Counsel Sri.John Joseph appearing in person is that the Kerala Panchayat Raj Act, 1994 and the Kerala Municipality Act, 1994 do not consider as to whether a contesting candidate belongs to any political party and therefore, importing such a consideration into, the Kerala Panchayat Raj (Conduct of Election) Rules, 1995, and the Kerala Municipality (Conduct of Election),1995 which are subordinate legislations are ultra vires the Constitution of India and the respective acts 1994, thus making the rules liable to be struck down. It is also submitted that when a party symbol is allotted to a candidate, the contest turns out to be between a political party on the one hand and an independent candidate on the other, and when there are more party candidates contesting the election, in effect it turns out to be among different political parties or fronts, while independent candidates get sidelined. Accordingly it is submitted that, what is not intended or visualised by the parliament by introducing the 73rd and 74th amendments thereby amending the constitution and granting the Panchayats as well as Municipalities a constitutional colour and efficacy, is virtually taken away by the rules made by the State Governments, and therefore unconstitutional. It is also submitted that if the parliament intended to recognise the entitlement of political parties to participate in local body elections using their names, it could have included, specifically the political parties in the mechanism designed for Local Self Government Institutions as it has done in the case of Union Ministry and the State Ministry, and the parliament would have provided for ruling faction and opposition in the local bodies also, as is in the case of State Legislature and Parliament.18. The sum and substance of the contention advanced is that, the intention of the 73rd and 74th amendments of the Constitution as well as the State legislations ie. Kerala Panchayat Raj, 1994 and the Kerala Municipality Act, 1994 can be inferred from the circumstances that, in Local Self Government Institutions, ward sabha / ward committee is/ are provided for, to give prominence and relevance to the people as such, for finding its own solutions rather than the party based solutions. It is also submitted that the ward committees consist of representatives of residents Association in the ward, voluntary associations and the ward representatives of the neighbourhood and representatives of political parties, by which each political party is entitled to nominate one representative to the ward committee. Therefore, these mandatory requirements under law clearly indicate the status and position conferred upon the political parties in so far as the local Self Government Institutions are concerned. Therefore, it is submitted that the Rules sought to be struck down as above may be granted.19. On the other hand, learned Standing Counsel for the State Election Commission submitted that Section 2(xxvii) of the Kerala Panchayat Raj Act, 1994 and Section 2(xxvii) of the Kerala Municipality Act, 1994 defines a political party to be a political party registered under Section 29A of the Representation of the People Act, 1951( hereinafter referred to as Act 1951). Likewise Section 2(f )of the Representation of the People Act, 1951 defines the political parties to be an associ ation or a body of individual citizens of India registered with the Election Commission as a political party under Section 29A. Section 29A of the Representation of the People Act, 1951 deals with registration of associations and bodies as political parties with the Election Commission of India. It is also submitted that by virtue of the 73rd and 74th constitutional amendments introducing Part IX and Part IX A dealing with Panchayats and Municipalities were with the avowed object to tackle the situations of reservations, disqualifications, duration of local bodies, bar to jurisdiction of court in electoral matters etc. etc apart from providing for mechanism to conduct the independent Governments of the Local Self Government Institutions. It is also submitted that the procedure for elections to panchayats and municipalities as envisaged in the 73rd and 74th constitutional amendments generally follow the pattern for assembly and parliamentary elections and the provisions relating to elections in Article 243K dealing with Panchayats and Article 243ZA dealing with municipalities are in Pari materia with Article 324 of the Constitution of India relating to elections to parliament and legislatures of the State. Similarly, Articles 243F and 243V deals with disqualification for membership in Panchayats/Municipalities and provides that a persons shall be disqualified for being chosen as and for being a member of a Panchayat/Municipality, if he is so disqualified by or under any law made by the legislator of the State. Therefore, in order to deal with such situ ations, Section 34 (kk) of the Kerala Panchayat Raj Act, 1994 and Section 90 (kk) of the Municipality Act, 1994, was introduced which prescribes the methodology for disqualification of candidates, who have been disqualified under the provisions of the Kerala Local Authorities (Prohibition of the Defection) Act 1999. Kerala Local Authorities (Prohibition of the Defection) Act 1999 has been enacted by the State Legislature to prohibit defection among members of the local authorities in the State of Kerala and to provide for disqualification of the defecting members for being members of the local authorities. Section 2 (XI) of the Kerala Local Authorities (Prohibition of the Defection) Act 1999 defines a political party to be a political party registered under Section 29A of the Representation of People Act, 1951. It defines an independent member as a person not belonging to any political party and explains a member belonging to a political party. It also deals with candidates set up by political parties and supported by political parties at an election. Apart from dealing with issuance of direction in writing, (commonly called 'whip'), provides that 'direction in writing' shall be issued by the person authorised by the political party from time to time to recommend the symbol of the said party for contesting election. With the introduction of the Kerala Local Authorities (Prohibition of Defection), Act, 1999, corresponding amendments were made to Sections 153 and 157 of the Kerala Panchayat Raj Act, 1994 by inserting Sections 7A and 9A respectively, providing that in the meeting for election for President and Vice President and the meetings for consideration of motion for no confidence against the President and Vice President of Panchayats, the election shall be by means of open ballots and a member, who casts his vote shall write his name and affix his signature on the reverse side of the ballot paper. Corresponding amendments were made to Sections 12 and 19 of the Kerala Municipality Act, 1994 by inserting sub Section 3A and sub section 9A respectively for the purpose of determining whether the member has become subject to disqualification on the ground of defection. Therefore, the Kerala Local Authorities (Prohibition of Defection) Act, 1999 acknowledges the existence of political parties and sets out the circumstances when a member of the local authority would be deemed to have defected from the political party and would thereby be disqualified for being a member of the local authority concerned.20. That apart, in the matter of delimitation of situations as per Section 10 (IV) of the Kerala panchayat Raj Act, 1994, in the matter of delimitation of Constituencies as per Section 10 (4) the Kerala Panchayat Raj Act, 1994), in the matter of accounts of election expenditure (Section 85, Explanation-1) etc, the Kerala panchayat Raj Act, 1994 and the Kerala Municipalities Act, 1994 recognises the existence of Political parties. It is therefore that provisions are made for reservation of sym bols to candidates sponsored by political parties in the conduct of election rules.21. Taking into account the provisions of law discussed above, it is clear that it was in exercise of the powers under Rule 12 of the Kerala Panchayat Raj (Conduct of Election) Rules, 1995 and the Kerala Municipality (Conduct of Election Rules, 1995 and the powers conferred by Articles 243K and Article 243ZA of the Constitution of India, the State Election Commission, Kerala has issued the Local Authorities Election Symbols (Reservation and Allotment) Order, 2017 for the allotment and assignment of symbols as provided under Rule 12 of the Kerala Panchayat Raj (Conduct of Election) Rules, 1995 and the Kerala Municipality (Conduct of Election) Rules, 1995.22. Therefore on an overhaul appreciation of the aforesaid provisions, it is clear that Rule 12 of the Kerala Panchayat Raj (Conduct of Election) Rules, 1995 and the Kerala Municipality (Conduct of Election) Rules, 1995 are not in dissonance with the object and intention of the Parliament in making the 73rd and 74th Constitutional Amendment.23. We have evaluated the rival submissions made across the Bar.24. First of all, taking into account the contentions put forth by the petitioner that the 73rd and 74th amendments to the constitution envisage to bar the political parties, and not expected to participate in the elections to the local bodies by using their symbol allotted by the Elec tion Commission of India under Section 29A of the Representation of People Act, 1951, the preamble of the Constitution of India is to be referred, which read thus:“WE, THE PEOPLE OF INDIA having solemnly resolved to constitute India ino a [SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC] and to secure to all its citizens.JUSTICE, social, economic and politicalLIBERTY of thought, expression, belief, faith and worship.EQUALITY of status and of opportunity.And to promote among them all.FRATERNITY assuring the dignity of the individual and the [unity and integrity of the Nation]IN OUR CONSTITUENT ASSEMBLY this twenty sixth day of November 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.”25. The term political inserted in the preamble has got very vital relevance in the Governance, not only of the Parliament and the State Legislature, but also of the local bodies as Self Government Institutions, and it is with the intention of ingraining the intention of the Constitution of India that the 73rd and 74th amendments were brought by the Parliament and introduced Part IX and Part IX A in the Constitution of India dealing with Panchayats and municipalities That apart, each and every term under the preamble embodies human values, cherished principles and spiritual norms and it upholds the dignity of man as said by the Apex Court in Bachan Singh Vs.State of Punjab [AIR 82 SC] Article 19 assures to all citizensa) Freedom of speech and expression.b) to assemble peaceably and without armsc) to form associations or unions.d) to move freely throughout the territory of India; apart from other rights guaranteed.26. Therefore, the freedom of speech and expression and to form association or union is an enabling fundamental right guaranteed under the Constitution of India, by which the formation of a political party or association with political objectives are envisioned by the framers of the Constitution at all levels. Therefore, the social and political objectives adumbrated under the Constitution of India persuade us to think that the Governance and administration, whether it be Parliament, State Legislature, Local Self Government Institutions or for that matter any other body, cannot be without the juncture of the political parties. The formation of the political parties and its participation in the election process are well accepted and adopted by the citizens of this Country, and the same is inextricable from the ordinary pursuits and the common course of events of the citizens of our country, irrespective of the economic, social, and other status enjoyed by the citizens.27. Now coming to Part IX of the Constitution dealing with Panchayat, it envisages a Grama Sabha under Article 243 A and as per Article 243B, it specifies that in every State, Panchayats in the Village, intermediate and district levels in accordance with the provisions of Part- IX. Article 243 C prescribes composition of Panchayats and requires a legislature of a State to make provisions with respect to composition of the Panchayats taking into account the ratio between the population and the territorial area of a Panchayat, at any level and the number of seats in such Panchayats to be filled by Election and so far as practicable in a similar manner, throughout the State.28. Clause 2 of Article 243 C specifies that all seats in a Panchayat shall be filled by persons chosen by direct elections from territorial constituencies in the Panchayat area and for that purpose, each Panchayat area shall be divided into territorial constituencies in such manner that ratio between the population of each constituency and the number of seats allotted to it shall so far as practicable be the same throughout the Panchayat area.29. Article 243D prescribes the reservation of seats for the Scheduled Castes and the Scheduled Tribes, in the manner prescribed there under. Article 243 E prescribes the duration of Panchayats and Article 243F deals with disqualification of membership. Article 243G emphasises the powers, authority and responsibilities of Panchayats, which stipulates that subject to the provisions of the Constitution, the legislature of a State may by law endow the Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self Government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats, at the appropriate level, subject to such conditions as may be specified therein, with respect toa) the preparation of plans for economic development and social justice.b) the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule.30. Similarly the State is empowered to make laws with respect to imposition of taxes enabling the Panchayat to collect the same and for constitution of such funds for crediting such moneys received.31. Article 243K deals with election to the panchayats and Clause 1 thereto stipulates that the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor. Similar are the provisions contained under Part-IXA of the Constitution of India with respect to the municipalities. Therefore, the State Election Commission is the authority constituted for dealing with elections to the panchayats as well as the municipalities. The said power conferred by the Constitution is similar to one prescribed under Article 324 of the Constitution of India to the Election Commission of India, dealing with elections to Parliament and legislatures of every State, and of the election of the office of the President and Vice Presidents held under the Constitution.32. No doubt, the State Legislature has made laws to conduct election to the Panchayats as well as municipalities by incorporating required provisions discussed above under the Panchayat Raj Act and the Municipality Act.33. We have pointed out earlier that Section 29A of the Representation of People Act, 1951 deals with registration of associations and bodies as political parties.34. Sub Section 1 thereto specifies that any association or body of individual, citizen of India calling itself a political party and intending to avail itself of the provisions of the Part-IV A dealing with registration of political parties, shall make an application to the Election Commission for its registration for the purpose of Act, 1951 and provides a mechanism to consider and adjudicate such applications and grants registration to such association or bodies as a political party.35. Reading together Section 29A of Act, 1951 and Article 324 of the Constitution of India, it can be seen that, the Election Commission of India is conferred with sufficient power to conduct the elections without interference of courts and in accordance with the procedure and mandates contained under the Constitution of India, Act 1951 and appropriate legislations made by the Parliament and the State Legislature. Therefore the laws made by the state legislature taking into account the said provision, make it clear that it intended to have election to the local self government institutions also including any organised associations which is constitutionally recognised by virtue of the guarantee extended under article 19 of the Constitution of India.36. Part IX and IX A of the Constitution of India has empowered the State Government to make such laws to confer power for Governments on the Panchayats as well as the municipalities and also, confers power on the State Election Commission constituted to conduct the election in the manner prescribed under the Constitution.37. Now the question is whether the State Election Commission is vested with any powers to prescribe election symbols to the political parties to the elections of the Local Self Government Institutions. The local authorities election symbols (Reservation and Allotment) Order 2017 is introduced by the State Election Commission to provide for reservation, allotment and assignment of symbols in elections to local self Government Institutions in the State of Kerala and matters related thereto and connected therein. It was exercising the powers conferred under Article 243A and Article 243ZA of the Constitution of India, the said Order, 2017 was introduced by the State Election Commission.38. In this regard the Apex Court had occasion to consider whether the Election Commission of India is vested with powers under Article 324 (1) of the Constitution of India read with conduct of Election Rules to introduce any such order, in Kanhiya Lal Omar vs. R.K. Trivedi and others [(1985) 4 SCC 628]. Paragraph 10 of the said judgment is relevant to the context, which reads thus:“It is true that till recently the Constitution did not expressly refer to the existence of political parties. But their existence is implicit in the nature of democratic form of Government which our country has adopted. The use of a symbol, be it a donkey or an elephant, does give rise to a unifying effect amongst the people with a common political and economic programme and ultimately helps in the establishment of a Westminster type of democracy which we have adopted with a Cabinet responsible to the elected representatives of the people who constitute the Lower House. The political parties have to be there if the present system of Government should succeed and the chasm dividing the political parties should be so profound that a change of administration would in fact be a revolution disguised under a constitutional procedure. It is no doubt a paradox that while the country as a whole yields to no other in its corporate sense of unity and continuity, the working parts of its political system are so organised on party basis — in other words, “on systematized differences and unresolved conflicts”. That is the essence of our system and it facilitates the setting up of a Government by the majority. Although till recently the Constitution had not expressly referred to the existence of political parties, by the amendments made to it by the Constitution (Fifty-second Amendment) Act, 1985 there is now a clear recognition of the political parties by the Constitution. The Tenth Schedule to the Constitution which is added by the above Amending Act acknowledges the existence of political parties and sets out the circumstances when a member of Parliament or of the State Legislature would be deemed to have defected from his political party and would thereby be disqualified for being a member of the House concerned. Hence it is difficult to say that the reference to recognition, registration etc. of political parties by the Symbols Order is unauthorised and against the political system adopted by our country.”39. Therefore, the power exercised by the State Election Commission providing reservation of symbols to the political parties, in view of the provisions of laws pointed out above, forms as a composite code and was in accordance with law.40. So also, the true intention in the matter of making laws, by the framers of the constitution is very well reflected in the directive principles of State Policy making it clear that the principles therein are fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. Article 38 imbibes a duty on the State to strive to promote the welfare of the people by securing and protecting as effectively, as it may a social order in which justice, social, economical and political shall inform all the institutions of the national life. On a proper analysis of Article 38, it is explicit and unequi vocal that the laws are to be made by the State taking into account the letter and spirit of the preamble of the constitution, and also, all the institutions of the national life, which in our considered opinion includes any political party recognised by the Election Commission of India , pursuant to which they are entitled to be conferred with specific symbols to contest the election. Therefore, the laws discussed above are made by the State Government bearing in mind the legal principles that are bound to be followed by it in terms of the provisions of the Constitution. Article 40 of the Constitution deals with organisation of village Panchayats, whereby it is specified that the State shall take steps to organise village Panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self Government. Harmoniously constructing the provisions of Article 19 (1) and the provisions of the directive principles of State policy discussed above, it is clear that, the importance and relevance is given for enabling the Local Self Government Institutions like the village Panchayats to function as units of self Government, which means the village panchayat shall be organised so as to protect its independence and integrity to function as an independent body, and it is never intended that the election is to be conducted avoiding the political parties.41. This is more so because, by introduction of 10th schedule on and with effect from 1.3.1985, as per the 52nd Amendment Act, 1985, thus incorporating provisions as to disqualifications in contemplation of Articles 102 (2) and 191(2) of the Constitution of India. Though inclusion of the 10th Schedule and the provisions of Articles 102 (2) and 191 (2) are referring to the disqualifications for membership to either house of parliament and the State legislature, the State has made a law to deal with the defection, so as to protect the democratic principles, and the Parliamentary and Democratic interest in the functioning of the local self Government institutions which is clearly a state subject as per entry 5 of list 11 of schedule 7 of the Constitution of India dealing with local authorities. Therefore, the defection laws of the Local Self Government Institutions discussed above and all other laws framed by the State Government are in accordance with law and made with the intention to sustain the democratic principles and moral values on the basis that the political parties contest the election in the panchayats and the Municipalities.42. Therefore, the only challenge made to the conduct of election rules to the Local Self Government Institutions is not sustainable under law, especially due to the fact that necessary provisions are made under the Kerala Panchayat Raj Act, 1994 and the Kerala Municipality Act, 1994, by which powers are conferred on the State Government to make laws for constituting bodies for the fair and disciplined administration of local self Government Institutions. Said so, we are of the view, the pray ers sought for by the petitioner to strike down the proviso to Rule 12 (1) and sub rules (1A) and (1B) of the Kerala panchayat Raj (Conduct of Election) Rules, 1995, and the proviso to Rule 12 (1) and sub rules (1A) and (1B) of Rule 12 of the Kerala Municipality (Conduct of Election) Rules, 1995 cannot be sustained under law and the petitioner is not entitled to the reliefs accordingly sought for. It is also significant to note that petitioner has not challenged the local authorities election symbols (reservation and allotment) Order, 2017 issued by the State Election Commission by virtue of the powers conferred under Article 243K of the Constitution of India. We have earlier pointed out that the State Election Commission is vested with ample powers to formulate an order for providing symbols in which the reservation of symbols to the recognised political parties are protected. Now, coming to the election symbols (Reservation and Allotment) order, 1968, an order to provide for specification, reservation, choice and allotment of symbols at elections in Parliament and Assembly constituencies for the recognition of political parties in relation to and for matters connected thereto. Such an order is framed with the intention of translating the true spirit of Article 19 (1) of the Constitution of India, which recognises, formation of associations or unions, and freedom of speech and expression. The State Election Commission has exercised the power to make the State symbol Order, 2017 bearing in mind the said principle and in line with the order 1968. Government of India as per notification No.ON 35 (E) dated 13.4.2018 and as per the subsequent amendment on 9.3.2019 has recognised the list of national and state parties, registered-unrecognised parties and the list of free symbols. Apart from the same, the symbols Order, 1968 prescribes the method of allotment of symbols, classification of political parties, and conditions for recognition as a State Party and a National Party. It also prescribes a procedure for continued recognition as a national or state party. It is true, the order, 1968 takes in only the assembly and parliamentary constituencies, however, since a party based election is recognised by the Constitution of India, we are of the opinion that the same line of approach is to be adopted at the grass root level organisations like the panchayats and the municipalities. Moreover when specifications are made under the Order, 1968 for recognising state and national Party and the continued recognition, unless and until grass root level organisational set up is made by the political parties, the political parties may not be able to achieve and attain the target fixed under the Order, 1968. Therefore, looking from that angle also, the Election to the Local Self Government Institutions avoiding political parties may not be conducive to the maintenance of parliamentary democracy throughout the nation.43. Taking into account the contentions made by the petitioner in the writ petition, petitioner is more concerned with the corruption taking place in the administration of Local Self Government Institutions, and according to him, that is against the letter and spirit of the 73rd and 74th amendments to the Constitution of India. However, we are of the view, the corruption, if any takes place is not because of the political parties contesting the election at the grass root level, but it is due to the attitude and perception of the individual contesting the election and succeeding in it, and therefore, there is no basis for such a contention. The democratic set up in the governance of the political institutions in the country is a larger concept intended for the betterment, welfare and organised life of the citizens, and the principles enshrined in democracy can be achieved only by dedication, sincerity, integrity and untiring and selfless devotion of the public men. So much so, the political party based elections up to the grass root level is very closely attached to the human mind and it is so interlinked with the life of the Indian citizens making it difficult to extricate and delink the political parties from the governance of the local Self Government Institutions. Moreover, the theory propounded by the writ petitioner as that of a no opposition governance in the Local Self Government Institutions is a concept visualised and developed by him, which in our view is alien to a Democratic polity, and therefore a constitutional court functioning in a Democratic State is not expected to legislate by resourcing power from the blues. That said, legislation is the absolute domain of the Government and the courts are not expected to step into that arena normally and ordinarily.44. In that context, paragraph 18 of the judgment of the Apex Court in Kanhiya lal Omar's case (supra) is relevant.“We are not satisfied with the submission that the several evils, malpractices, etc., which are alleged to be existing amongst the political parties today are due to the symbols order, which recognises political parties and provides for their registration etc. The reasons for the existence of such evils, malpractices etc. are to be found elsewhere. The surer remedy for getting rid of those evils, malpractices etc. is to appeal to the conscience of the nation. We cannot however, set aside the symbols Order, on the grounds alleged in the petition.”45. In this regard, reference to a few judgments of the Apex Courts would be fruitful to arrive at a logical conclusion. In Bhanumathi and others v. State of Uttar Pradesh ( 2010 )12 SCC 1, It is observed in Paragraph 51 many issues in our constitutional jurisprudence evolved out of doctrine of silence, that the basic structure doctrine vis-a-vis Article 368 of the Constitution emerges out of the concept of silence in the Constitution, and that a constitution which professes to be democratic and republic in character and which brings about a revolutionary change by the 73rd Constitution amendment by making detailed provision for democratic decentralisation and self governance on the principle of grass root democracy cannot be interpreted to exclude the provision of no confidence motion in respect of the office of the chairperson of the panchayats, just because of its silence on that aspect and upheld the constitutional validity of the UP state law providing for no confidence motion and, it was also held that the State legislature was competent to enact the impugned amendment and it is very much encompassed within Schedule VII list 11 entry 5.46. In Village Panchayat Calangute Vs. Addl.Director of Panchayat II and Others [(2012 )7 SCC 550] while considering the locus of a panchayat to file writ petition it was held in Paragraph 14 that Article 243 K (1) declares that the superintendence, directions and control of the preparation of electoral rolls for, and the conduct of, all election to the panchayat shall be vested in a state election commission and Clause 4 of the said Article empowers the state legislature to make law with respect to all matters relating to or in connection with elections to the panchayats. In Usha Bharathi vs. State of UP and others [(2014) 7 SCC 663], while considering the issue with respect to a no confidence motion against a member, taking into account Article 40 of the Constitution and the statement of objects and reasons of the 73rd amendment, of the constitution, it was observed that, in the light of the experience in the last 14 years and in view of the shortcomings which have been observed, it is considered that, there is an imperative need to enshrine in the constitution, certain basic and essential features of Panchayat Raj Institutions to impart certainty, continuity and strength to them and further that the provisions of the 73rd constitutional amendment was to ensure that Panchayati Raj Institutions acquire the status and dignity of viable and responsive peoples bodies.47. In P.Nallathambi Terah.Vs. Union of India and Others [(1985) supp. SCC 189], a five member Constitution Bench of the Hon'ble Apex Court, while considering a question with respect to striking down Section 77 (1) of the Representation of People Act, 1951, classifying all political parties or associations in one group and confers upon them the same or similar advantage, Apex Court has observed that, though explanation 1 clubs, associations, bodies of persons and certain individuals together with political parties, it is plain that, the benefit conferred by that provision goes largely, though not exclusively common to political parties and it is still political parties which sponsor candidates that are in a position to incur large election expenses which often run into astronomical figures. Therefore, it was held that preferring political parties for exclusion from the sweep of monetary limits on election expenses, is so unreasonable or arbitrary as to justify the preference being struck down upon that ground. Thereafter it was observed that, the statue does not make the affluence of a political party an electoral standard for acquiring eligibility prescribed by the explanation and that, it is not an unwise policy, to the extent that one can examine the wisdom of legislative policies, to ensure reasonable reduction in the number of contesting candidates, which can be done by conferring special privileges upon political parties. It was also specified that in any democratic system of the Government, political parties occupy a distinct and unique place and they are looked upon as guardian angels by their members, though, occasionally, they fail to discharge the benign role of a guardian, leave alone the angelic part of it and it is through them that the generality of the attempt to voice or ventilate their grievances. In RC Poudyal Vs. Union of India and others [(1994) supp. (1) SCC 324] a Constitution Bench of the Apex Court while considering the question of reservation of 12 seats for sikkimes of Bhutia-Lepcha in State Legislative Assembly of Sikkim, it is observed at Paragraph 53 that, the unalterable fundamental commitments incorporated in a written constitution are like the soul of a person not amenable to a substitution by transplant or otherwise and for identifying what they are with reference to a particular constitution, it is necessary to consider, besides other factors, the historical background in which the constitution has been framed, the firm basic commitments of the people articulated in the course and by the contents of their struggle and sacrifice preceding, the thought process and traditional beliefs as also the social ills intended to be taken care of and these differ from country to country. It was further observed that, a constitution has its own personality and as in the case of a human being its basic features cannot be defined in the terms of another constitution. Thereafter, it was observed that, the 'expression democracy' and 'republic' have conveyed not exactly the same ideas throughout the world, and little can be obtained by referring to another constitution for determining the meaning and scope of the expression with reference to our constitution and on an examination of the provisions of the constitution does not leave room for any doubt that this idea has been kept as the guiding factor, while framing the constitution. In Subramanian Swamy Vs. Election Commission of India [(2008) 14 SCC 318] the Apex court was considering the question of election symbols allotted to a political party and held that, symbol of a political party not only has political implications but also has emotional aspects and further held as follows in Paragraphs 17 and 18:“17. In this backdrop we have to decide this ticklish question of the right of Janata Party to permanently retain its symbol. There can be no doubt that a symbol particularly in case of an established political party is not only having a political implication but also has an emotional angle attached to it. This is apart from the fact that in India, large population of which is rural, uneducated or at times illiterate, such electorate would naturally have a tendency to identify a party or its candidates by its symbols. It is perhaps for this reason that the political parties zealously guard their symbol. But the basic question is whether a political party can be deprived of its symbol under such scenario and would such deprivation amount to an undemocratic step as urged by the appellant. In our opinion though the matter of symbol is extremely sensitive one for a political party, it should be or remain to be firstly a political party.18. A “political party” is defined in Section 2(1)(h) as an association or body of individual citizens of India registered with the Commission as a political party under Section 29-A of the Representation of the People Act, 1951 (hereinafter referred to as “the RP Act, 1951”). That section mandates that an application has to be made to the Election Commission for registration of any party who wants to avail of the provisions of Part IV-A. This application must contain the information as provided under Sections 4(a) to (g) which information includes, amongst others, the numerical strength of its members of various categories as also its representatives in the House of the People or any State Legislature. Such application must accompany the rules and regulations for its internal functioning. Sub-section (7) empowers the Election Commission a discretion to register such political party or to refuse the registration. One very important aspect is that vide Section 29-B every political party may accept voluntary contribution, donations or subscriptions, etc. So also Section 29-C provides that the political party must prepare a report in respect of the contributions received by it and such report shall be submitted to the Election Commission. Tax relief is also provided under that section. There is no doubt that Janata Party is such a registered political party under Section 29-A. The section clearly shows that a political party must, therefore, have followings. One cannot imagine a political party without any substantial following.“48. In Desiya Murpokku Dravida Kazhagam (2) Vs. Election Commision of India [(2011) 4 SCC 224] considering the effect of election symbols as per order 1968, it was held that they lay down certain norms to minimise number of parties contesting election.49. In Desiya Murpokku Dravida Kazhagam (DMDK) and another Vs. Election Commission of India [(2012) 7 SCC 340] while considering the question of allotment of symbols of political parties it was held as follows at paragraphs 110 and 112.“110 A political party is nothing but an association of individuals pursuing certain shared beliefs. Article 19 (1) c confers a fundamental right on all citizens to form associations or associate with organisations of their choice. Article 19 (1) (a) confers a fundamental right on the citizens of the freedom of speech and expression. The amplitude of the right takes within its sweep the right to believe and propagate ideas whether they are cultural, political or personal. Discussion and debate of ideas is a part of free speech.112 Therefore, all the citizens have a fundamental right to associate for the advancement of political beliefs and opinions held by them and can either form or join a political party of their choice. Political parties are, no doubt, not citizens but their members are generally citizens. Therefore, any restrictions imposed on political parties would directly affect the fundamental rights of its members.“50. In Romesh Thappar vs. State of Madras [AIR (1950) SC 124], it was observed that without free political discussion, no public education so essential for the proper functioning of the processes of popular Government, is possible. In Resurgence India Vs. Election Commission of India [(2014) 14 SCC 189] it was held as follows in Paragraph 20“Thus, this Court held that 'a voter has the elementary right to know full particulars of a candidate who is to represent him in the parliament and such rights to get information is universally recognised natural right flowing from the concept of democracy and is an integral part of Article 19 (1) (a) of the Constitution. It was further held that, the voters speech or expression in case of election would include casting of votes, that is to say, voters speak out or express themselves by casting votes. For this purpose, information about the candidates to be selected is a must. Thus,in unequivocal terms it is recognised that the citizen's right to know of the candidates who represents him in the Parliament will constitute an integral part of Article 19 (1) (a) of the Constitution of India and any Act which is derogative of the fundamental right is at the very outset ultra vires'.51. Learned State Attorney in regard to the issue raised in the instant writ petition has invited our attention to the judgment of Madhya Pradesh High Court in Mukund Das and another vs.State of MP and o

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thers [ (1992) KHC 2332] = 1992 MP 177. Paragraph 26 is relevant to the context which reads thus :“26. It has also been the contention on behalf of the petitioners that permitting political parties registered by the Election Commission of India under the Representation of the People Act, 1951, to contest elections to the office of Panch etc, on party lines and making it obligatory to allot the symbol reserved for a political party under the Election Symbol (Reservation and Allotment) Order, 1968, to such candidates does not subserve the purpose for which the institution of Panchayats has been set up. The argument is that such a provision incorporated in S. 36 of the Adhiniyam and R.36 and R.37 framed under S. 37 thereof will embitter the local atmosphere and shall be a vitiating factor in achieving the very purpose of the Panchayat Raj institution, A suggestion also has been that the immediate object of introducing such a provision is to destablise the existing panchayats and remove the office bearers with a view to assume power by the ruling party (Bharatiya Janta Party) at the lower level. The contention, therefore, is that S. 36 and R.36 and R.37 should be struck down. We are unable to accept this contention either. To us, there does not appear to be any rationale behind such a contention. One of the declared objects of enacting the Adhiniyam is to hold elections on party basis realising it as an important requirement of the present era. From para 13 of the return in Misc. Petition No. 3537 of 1990, it is reflected that this provision has been brought in after taking into consideration the views of the Election Commission expressed earlier as also after studying and referring to similar provisions in force in the State of West Bengal, Kerala and Tamil Nadu and in all the municipal laws in vogue practically in all the States. Annexure R / 9 filed with the return shows that the rules are in force in West Bengal since the year 1974 and have been working well without any objection. Annexures R / 10 and R / 11 show that the Election Commission has approved such a pattern. We also do not see how and in what manner the elections recognised on party basis and on symbols allotted to such parties for the election of the Parliament or the State Assemblies and the municipalities shall be against the spirit of Art. 40 of the Constitution, envisaging Panchayat as the unit of self - administration. We do not find force behind this contention which is also rejected.”52. Therefore, on an analysis of the judgments of the Apex Court discussed above, and the judgment of the MP High Court it is clear that the registration of the political parties in terms of Section 29A of the Representation of People Act, 1951 has much relevance and intrinsic relationship to the fundamental rights of speech and expression and to form associations or unions, guaranteed under Article 19 of the Constitution of India. Therefore, the contention advanced by the petitioner that while introducing Parts IX and IXA into the Constitution of India as per the 73rd and 74th amendments, the Parliament intended that no elec tions shall be conducted in the Panchayats and the Municipalities on political party basis, cannot be sustained since it has no basis, logic and rationale .53. In fact, on going through the provisions of Parts IX and IXA of the Constitution, the provisions of the Panchayat Raj Act, 1994, the Municipality Act, 1994 and the statements of objects and reasons it could be gathered that the legislative intention is in order to enshrine in the Constitution, certain basic and essential features of local Self Government Institutions, to impart certainty, continuity and strength of them, and that is how the Parliament has added Parts IX and IXA in the constitution. The preamble of the panchayat Raj Act, 1994 makes it clear that, the Act, 1994 was introduced in the State in line with the amendments to the constitution as per the 73rd Amendment Act, 1992 for securing a greater measure of participation of the people in the planned development and local self Government affairs, by constituting village, block and district panchayats and endow such panchayats with such powers and authority to enable them to function as institutions of self Governments. It is also clear from the preamble that the intention of the Act, 1994 was to entrust the panchayats the preparation of plans and implementation of schemes for economic development and social justice including the implementation of schemes in relation to the matters listed in the 11th Schedule to the Constitution. Similar is the pre amble of the Kerala Municipality Act, 1994.54. Analysing these situations we are undoubtedly of the opinion that by 73rd and 74th amendments of the Constitution of India, the Parliament did not intend elimination of the political parties from the fray of elections to the panchayats and the Municipalities and there is also no indication at all in the said provisions to think so .55. That being the situation, it cannot be said that the allotment of election symbols as per the conduct of election Rules to the panchayats and municipalities and the procedure prescribed by the State Election Commission as per the symbols Order, 2017 is bad, illegal or unconstitutional in any manner. Even though petitioner has stated in the writ petition that as per the 73rd and 74th amendments of the Constitution or anywhere under any of the laws a ruling front and an opposition is envisaged, we are of the considered opinion that, such formulations are a facet of democracy and republican form of Government and only by formation of a Government by a majority and formation of an opposition with a group of lesser elected members functioning effectively could only attain and achieve the result of a good governance, following good practices beneficial to the society at large. To put it otherwise, the representatives elected by the people to power, are representing the people as such, irrespective of the political lineage the voters have, which thus means, the election is a democratic process and a method to identify the people's representative and after the elections, the representatives are duty bound to discharge their functions to the absolute advantage of the people as a whole.56. Deducing the facts, law and circumstances, we have no hesitation to arrive at the conclusion that the petitioner is not entitled to get the reliefs as are sought for in the writ petition. Resultantly, the writ petition fails, accordingly, it is dismissed.
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