Bombay HC Clamps Down On Horse-Trading Tactics In Municipal Elections, Post-Poll Alliances By Independent Candidates To Be Considered Pre-Poll Alliances

In a move that can halt 'horse-trading' tactics resorted to by independent candidates in the Municipal Councils, a five-judge bench of the Bombay High Court held that the post-poll alliances (post-poll Aghadi) formed by independent candidates after the elections, will be considered as pre-poll alliance and the provisions of the Maharashtra Local Authority Members' Disqualification Act, 1986 will be applicable for all purposes for all meetings as a member of such Aghadi till the term of the Council.

Usually, the independent candidates after being elected, enter into post-poll alliances to secure better representation in various committees of the Council, such as the Public Works Committee, Education, Sports and Cultural Affairs, Sanitation, Medical and Public Health Committee, Water Supply and Drainage Committee, Planning and Development Committee and Women and Child Welfare Committee and Transport Committee. However, these independent candidates tend to be a part of the alliance only for the limited purpose of the various committees and not for the overall functioning of the Council.

For instance, if an independent councillor is part of a subject committee and also the Standing or the General Committee of the Council, they may vote in favour of the alliance over an issue, while being in the subject committee but when the same issue might come before the Standing or General Committee, the same councillor may vote contrary to the alliance's whip. Then these councillors would defend their cross voting etc on the ground that they are part of the alliance only for the limited purpose of the subject committee.

The five-judge bench headed by Justice Nitin Jamdar has now held that if any such elected independent councillor joins any alliance after the election results are declared, such an alliance will be considered a pre-poll alliance, which will not be limited to subject committees.

"The Aghadis are formed so as to conduct business in the Council. The ultimate object should be how efficiently the functioning of the Council is achieved. The committees are formed for the Municipal Council to perform efficiently and discharge public duties. It is, therefore, in the larger public interest that the Council functions with efficacy. When Aghadi is formed to conduct the business, it should be practicable and disciplined. The debates in both Houses while introducing the Bill would indicate that though an opportunity is given to the independent councillors for representation in the committees, it was not contemplated that there would be some other type of Aghadi, but an Aghadi akin to a pre-poll Aghadi with all its attributes and to curb further horse-trading," the bench also comprising of Justices Girish Kulkarni, Bharati Dangre, Manish Pitale and Amit Borkar observed. 

Further, the larger bench emphasised that elections are a fundamental aspect of democratic governance.

"As noted in several judicial decisions, the issue of floor-crossing and defection within the Indian political system has become a serious concern. The second Proviso to Section 63(2B) should be interpreted to promote stability in the functioning of democratic institutions rather than contribute to further instability. The interpretation must align with the need to ensure a more stable and consistent political environment, which is crucial for effective governance and the overall health of the democratic process," the bench underscored.

The larger bench was constituted after a single-judge Justice Ramesh Savant had in January 2017 while dealing with petitions filed by some independent councillors of the Mahabaleshwar Municipal Council, who were disqualified under section 3 of the Disqualification Act for acting contrary to the post-poll alliance. The judge referred to the decision of a three-judge bench of the High Court, which dealt with the same issue but held that such post-poll alliances would be limited only to the functioning of the subject committees and not to the entire council.

Subsequently, the Chief Justice had initially constituted a bench of Justices Kulkarni, Madhav Jamdar and Jitendra Jain. The said three-judge bench, however, opined that it could not decide the correctness of a bench of equal strength and thus a larger bench was constituted.

The larger bench observed that the creation of an Aghadi and their participation in the administration of the Municipal Council is a significant step that should be taken with seriousness and cannot be manipulated at will.

"Therefore, once an Aghadi is formed under the second Proviso to Section 63(2B) and declared a pre-poll Aghadi, it functions for the entire Act (for all meeting) beyond the subject committees. Section 63(2B) cannot be viewed solely from the councillor's perspective but in the larger interest of better administration of the Municipal Council and the integrity of the election process. Any interpretation that undermines these purposes must be avoided. Therefore, it will have to be held that Aghadi registered pursuant to the second Proviso to Section 63(2B) of the Municipalities is governed by Section 3 of the Disqualification Act, and the Aghadi is not restricted to the subject committees alone but for all the meeting of the Council," the five judges held.

Appearances:

Senior Advocate Ashutosh Kumbhakoni along with Advocates Vishwajit Mohite, Siddharth Karpe, Akshay Shinde, Ketan Joshi Sneha Bhange and Vijay Patil appeared for the Petitioners.

Advocate General Dr. Birendra Saraf, Chief Government Pleader Priyabhushan Kakade, Additional Government Pleaders SH Kankal, RS Pawar and Advocate Jay Sanklecha represented the State.

Senior Advocate Anil Anturkar along with Advocates Sugandh Deshmukh, Harshvardhan Suryavanshi, Yatin Malvankar, Atharva Date, Sumit Sonare, Sharad Dhore and Prathamesh Bhargude appeared for Private Respondent.

Advocates Dilip Bodake and Shraddha Pawar represented the Mahabaleshwar Municipal Council.

Case Title: Kumar Goraknath Shinde vs State of Maharashtra (WP/11434/2016)

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