MOHANLAL TRIPATHI Vs. DISTRICT MAGISTRATE RAI BAREILLY

JUDGEMENT

(1.) Validity of the no-confidence motion passed, on 28th March, 1990, under S. 87A of the U.P. Municipalities Act (in brief 'the Act') by the Board against the appellant, who was elected in November, 1988 by the electorate, directly under S. 43(2) of the Act, as President of Rae Bareilly City Municipal Board, having population of less than one lakh, was assailed as violative of the democratic concept of removal or recall of an elected representative by a smaller and different body than the one that elected him, in this appeal directed against the judgment and order of the Allahabad High Court rendered in a Writ Petition filed under Art. 226 of Constitution of India. Statutory arbitrariness, arising out of application of Ss. 47A and 87A of the Act to the Presidents of the Municipalities either elected by the Board of electorate as irrational and invalid of Art. 14 of the Constitution was, yet, another ground of attack. Reduction of period from two to one year 'during which a vote of no-confidence could be tabled against a President by ordinance issued in 1990 which later became Act was challenged for absence of any discrenible and reasonable principle and resorted to as 'spoil system' thus constitutionally invalid.

(2.) Democracy is a concept, a political philosophy an ideal practised by many nations culturally advanced and politically mature by resorting to governance by representatives of the people elected directly or indirectly. But electing representatives to govern is neither a 'fundamental right' nor a 'common law right' but a special right created by the statutes, 1 or a 'political right' or 'privilege' and not a 'natural' 'absolute' or 'vested right' 2. 'Concepts familiar to common law and equity must remain stranger to Election Law unless statutorily recognised'.3 Right to remove an elected representative, too, must stem out of the statute as 'in the absence of a constitutional restriction it is within the power of a legislature to enact a law for the recall of officers'4. Its existence or validity can be decided on the provision of the Act and not, as a matter of policy. In the American Political Dictionary5 the right of recall is defined as, 'a provision enabling voters to remove an elected official from offence before his or her term expired'. American jurisprudence explains it thus, 'Recall is a procedure by which an elected officer may be removed at any time during his term or after a specific time by vote of the people at an election called for such purpose by a specified number of citizens6. It was urged that recall gives dissatisfied electors the right to propose between elections that their representatives be removed and replaced by another more in accordance with popular7 will' therefore the appellant could have been recalled by the same body, namely, the people who elected him. Urged Shri Sunil Gupta, learned counsel, that since, 'A referendum involves a decision by the electorate without the intermediary of representatives and, therefore, exhibits form of direct democracy'8 the removal of the appellant by a vote of no-confidence by the Board which did not elect him was subversive of basic concept of democracy. Academically the submission appeared attractive but applied as a matter of law it appears to have little merit. None of the political theorists, on whom reliance was placed, have gone to suggest that an elected representative can be recalled, only, by the persons or body that elected him. Recall expresses the idea that 'public officer is indeed a "servant of the people" and can therefore be dismissed by them'9. In modern political set up direct popular check by recall of elected representative has been universally acknowledged in any civilised system. Efficacy of such a device can hardly admit of any doubt. But how it should be initiated, what should be the procedure, who should exercise it within' ambit of constitutionally permissible limits falls in the domain of legislative power. 'Under a constitutional provision authorizing municipalities of a certain population to frame a charter for their own Government consistent with and subject to the Constitution and laws of the State, and a statutory provision that in certain municipalities the mayor and members of the municipal council shall be elected at the time, in the manner, and for the term prescribed in the charter, a municipal corporation has authority to enact a recall provision'10. Therefore, the validity of otherwise of a 'no-confidence motion for removal of a President, would have to be examined on applicability of statutory provision and not on political philosophy. The Municipality Act provides in detail the provisions for election of President, his qualification, resignation, removal etc. Constitutional validity of these provisions was not challenged, and rightly, as they do not militate, either, against the concept of democracy or the method of electing or removing the representatives. The recall of an elected representative therefore, so long it is in accordance with law cannot be assailed on abstract notions of democracy.

(3.) Legality of the motion of no-confidence was attacked for absence of any specific provision applying Ss. 47-A and 87-A of the Act to President elected by the electorate. as also for being irrational if the provisions were held to apply by interpretation as it would result in substituting confidence of people with confidence of Board which had no concern with expression of confidence in electing the President consequently it would be unreasonable and against public interest. Even the concept of democracy being basic feature of the Constitution was invoked to urge that provisions relating to elections should be construed so as to be in consonance with it rather than violative of it. Legislative history of S. 43 dealing with election of President, S. 87-A providing for passing a vote of no-confidence against him, Section 47-A directing him to resign within three days from the date of communication of the result that no confidence motion had been passed and S. 48 empowering the Government to remove a President if he failed to resign were placed with dual purpose of demonstrating that these sections could not apply to a President elected by the electorate and to urge that even if they applied they were rendered arbitrary as no safeguard or protection has been provided to such President as existed prior to introduction of the proviso to S. 47-A. It was submitted that operation of the proviso to S. 47-A was confined to a President elected by the Board therefore the protection to a President against arbitrary action of the Board of passing a resolution against him could be available to such President only. And a President elected by the electorate despite recommending supersession of Board would be exposed to fresh election due to non-avail ability of the proviso therefore it was submitted that S. 47-A itself should be held to be inapplicable to a President elected by the electorate otherwise it would lead to illogicity and irrationality, It was submitted that if there was a choice between democratic purpose and others the court should accept a construction which may advance constitutional tenets of political philosophy and justice rather than subverse it.