HISPREACHERINGSON SHYLLA Vs. KHASI HILLS AUTONOMOUS DISTRICT COUNCIL

JUDGEMENT

(1.) THE constitutional validity of the provisions of Khasi Hills Autonomous District Council (Prevention of Defection) Act, 2003 ("the Act" for short) and the rules made thereunder, namely, Khasi Hills Autonomous District Council (Prevention of Defection) Rules, 2005. ("the Rules") whereunder the writ petitioner has been disqualified as Member of the Khasi Hills Autonomous District Council ("the District Council" for short), is called into question in this writ petition.

(2.) THE material facts of the case are not in dispute. The petitioner was elected as Member of the District Council form No. 13, Laitkroh District Council Constituency in the election held in the year 2004 for a term of five years. After holding the office of the Executive Member, Law and Elaka Administration Department in the District Council for sometime, he was ultimately appointed as the Chief Executive Member till he was removed on 5. 2. 2008 by a No-Confidence Motion moved against him. After his removal, three Members of the District Council, namely, Mr. M. Nongrem, Mr. H. L. Massar and Mr. Lambor Malngiang, separately submitted and moved the Chairman of the District Council under Section 3 of the Act for disqualifying the petitioner as Member of the District Council on the ground that he acted against the whip issued by the Congress party for his removal as leader of the Congress Parliamentary Party and for electing one C. B. Syiem as the leader in his place. Two other complaints were also filed by the respondent No. 5, 6, 7, 8 and 9 jointly alleging that the petitioner, having violated the whip of his party to resign and having contested the Meghalaya Legislative Assembly election as an Independent candidate, has incurred disqualification as Member of the Council and contending that he was liable to be proceeded with in accordance with Section 3 of the Act. Many contentions have been made by the petitioner before the Chairman of the Council in contesting those complaints, which were reiterated before us, but they are not really necessary for us to deal with those contentions as the present controversy can be resolved in a narrow compass. It appears that those contentions did not find favour with the Chairman whereupon he, by the order dated 18. 4. 2008, declared that the petitioner stood disqualified as Member of the District Council under the provisions of the Act, and has ceased to be so with immediate effect.

(3.) IT is contended by Mr. S. S. Dey, the learned counsel for the petitioner that the entire action of the Chairman in passing the impugned order disqualifying him from the membership of the Council is ultra vires the provisions of paragraph 2 (6-A) of the Sixth Schedule to the Constitution, which cannot be made subservient to the Act passed by the Council and that the Council has no legislative competence to enact such a legislation. According to the learned counsel, the powers of the Council to make laws are confined only to the legislative powers conferred under paragraphs 3, 8 and 10 of the Sixth Schedule, and the subjects and fields of its legislative domain, being specific as well as exhaustive, cannot be stretched, added or altered by the Council on its own. The power of the Parliament to legislate the Tenth Schedule to the Constitution under Articles 102 (2) and 191 (2) of the Constitution for disqualifying members of Parliament and members of legislative assembly respectively can, in no way, be equated with the limited law making power of the Council, which undoubtedly has no plenary power of legislation. The Act is the creature of the Sixth Schedule to the Constitution, and the creature cannot destroy or change its creator. It is thus contended by the learned counsel for petitioner that the entire proceedings before the Chairman culminating in the disqualification of the petitioner as Member of the Council in exercise of his purported power under Section 3 of the impugned the Act, which is ex facie ultra vires the provisions of the Constitution, cannot be sustained in law, and is liable to be quashed forthwith. The learned counsel, therefore, submits that the entire provisions of the Act and the rules made thereunder cannot be sustained in law and should be declared unconstitutional, null and void and inoperative. On the other hand, it is the contention of Mr. K. S. Kynjing, the learned senior counsel for the Council, that the Council has been constituted under the Sixth Schedule for the purpose, among others, of protecting and preserving the social customs of the tribals residing in the autonomous district council areas, and the power to make anti-defection law to sub-serve such purpose is clearly referable to, and is authorized by, paragraph 3 (j) to the Sixth Schedule under the head "social customs". The Council, bearing in mind the contemptible and loathsome habit of changing political party by Members at the drop of a hat by exhibiting naked opportunism, which is striking at the very root of social customs, passed the impugned Act so as to facilitate clean and stable government in the Council. The Act has been enacted for a noble cause, namely, to prevent and curb the growing menace of unethical and unprincipled changes of political affiliations by elected Members of the Council. According to the learned senior counsel, the very fact that the Governor of Meghalaya gave his assent to the Bill shows that the Council has the legislative competence to pass the impugned Act. As the erstwhile Executive Member in charge of Law, the petitioner himself was actively involved in framing the Rules, and was thereafter instrumental in bringing out the amended Rules in 2005 in his capacity as the Chief Executive Member of the Council. It is, therefore, strenuously urged by the learned senior counsel that there is absolutely no infirmity in the impugned Act or the Rules, which ought to be upheld by this Court. Mr. G. S. Massar, the learned Advocate General, who was asked to assist this Court, is of the view that the impugned Act and Rules do not suffer from any constitutional infirmity and broadly supports the line of arguments adopted by the learned counsel for the District Council.