"Silence Of Constitutional Functionary Highly Detrimental To Democracy"; Bombay High Court Sets Aside Notifications Reserving Wards In Goa Municipal Councils, Censures EC

A Division Bench of Justices Bharati Dangre and MS Sonak on Monday directed the state to issue a fresh notification ensuring reservations for women and other communities to ensure that the process is completed by 15 April 2021.

The challenge

A batch of nine petitions assailed a Notification issued by the Director and ex-officio Additional Secretary (Municipal Administration)/ Urban Development, Goa on 4 February 2021 declaring reservation of wards in the municipal councils.

The prayers in the pleadings by the petitioners varied on the aspect of reservation that was challenged.

The gist of the pleadings and the contentions are as below:

• -Less than 1/3^rd seats were reserved for women in certain councils
• -The mandate of seat rotation, as required by the Goa Municipalities Act, 1968 for the purpose of reservation was not complied with.
• -Reservation of seats for candidates belonging to Scheduled Castes (SC), Scheduled Tribes (ST), and Other Backward Caste (OBC) communities were arbitrarily decided without regard to their share in the population in the particular ward, as was necessitated by the Goa Municipalities Act, 1968.
• -There is an absence of policy with regard to deciding rotation of seats.

The state averred that there was no prejudice caused to any of the petitioners by the notification. The Advocate General submitted that the elections were imminent and that no interference with the elections could be permitted at this stage.

Rebutting the contention on arbitrariness, the Advocate General stated that merely because there is no policy, it does not necessarily lead to arbitrariness, unless and until any particular instance is pinpointed.

On reservations, the judgment records the Advocate General as saying,

"if the reservation quantified result into a fraction, and if the rounding off is taken to be 1 seat, this addition of one seat will have a cascading effect and therefore the fraction has been ignored in Mormugao and Mapusa Municipal Council and this according to him is within legal parameters"

The State Election Commission admitted in Court that reserving below 33% of seats was a constitutional infraction, but stated that it was 'helpless' and has no choice but to proceed with the elections, since the power to reserve seats was within the purview of the director.

What the Court held

Justice Dangre and Sonak in their concurring opinions disagreed with the contention of the Advocate General as regards reservations for women. Since the Constitution as well as the Goa Municipalities Act mandated a reservation of not less than one-third seats, there was no ambiguity.

Censuring the State Election Commission for his helplessness, the Judges came down heavily upon the Commission stating that it was bound to apply constitutional principles rather than rushing with the elections.

"The silence on part of the constitutional functionary, according to us, is highly detrimental to the democratic concept of this country. We say nothing more".

On arbitrariness and the absence of a policy governing reservations for members of the SC, ST, and OBC communities, the Court emphasized upon the necessity for a policy to determine reservations to prevent arbitrariness.

Pointing out that the Goa Municipal Councils Act itself indicated that populations were to be the basis upon which reservations were fixed, the Court directed a fresh notification of reservations in the councils of Sanguem, Mormugao, Mapusa, Margao and Quepem.

The Court additionally exhorted the Director to give due weightage to the observations made in the judgment

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