Nominated Members Of Municipality Have No Right To Vote In Municipal Council's Meeting: Karnataka High Court Upholds Article 243R(2)(a)

A division bench of Justice Alok Aradhe and Justice S Vishwajith Shetty, while dismissing a petition filed by six nominated councillors of the Malur Town Municipal Council said,

"The elected members of the Council are chosen by popular vote and carry with them, the mandate of the people, whereas, nominated members of the Council are appointed as Councillors. The elected members and nominated members cannot be said to be belonging to the same class and there is no pleading that differentiation between elected and nominated members is either unreasonable or is arbitrary or that it does not rest on any rational basis. In view of aforesaid enunciation of law, challenge to the validity of Article 243R (2) (a) that it violates Article 14 of the Constitution of India, fails."

The court also upheld the constitutional validity of section 11(1)(b) of the Karnataka Municipalities Act 1964. It said, "Section 11(b) of the Act is in consonance with Article 243R (2) (a) of the Constitution and therefore, for the reasons assigned in the preceding paragraph, the same cannot be termed as unconstitutional. Section 11(b) of the Act does not suffer from any unconstitutionality and therefore, the question of reading down the same also does not arise."

Case Background:

The petitioners Lakshmikantha K and others had approached the court seeking to declare that they are entitled to participate and cast their vote in the election for the post of President, Malur Town Municipal Corporation by virtue of being nominated councillors of the Malur Town Municipal Council under the provisions of Karnataka Municipalities Act.

Further they had also prayed for a declaration that they are entitled to cast their vote in the election for the post of President/ Vice President under Section 42(2) of the Karnataka Municipalities Act,1964. The votes cast by the Petitioners in the election held on 30.12.2021 for the post of President in Respondent No.3 Council as valid and sustainable in law.

In the alternative to declare that the proviso to Section 11(1) (b) of the Karnataka Municipalities Act, 1964 is ultra vires Article 14 of the Constitution of India and is unconstitutional. Or read down the proviso to Section 11(1)(b).

Further to declare that the proviso to Article 243-R (2)(a) of the Constitution of India is ultra vires Article 14 of the Constitution of India and contrary to the basic structure of the Constitution, or read down the proviso to Article 243-R (2)(a) of the Constitution as not applying to the post of President and the vice president of the Municipal Council held under Section 42(2) of the Karnataka Municipalities Act, 1964 and the rules framed there under.

Petitioners submissions:

It was submitted that the Karnataka Municipalities (President and Vice President) Election Rules, 1965 (hereinafter referred to as 'the Rules' for short) does not bar the nominated members from participating in the election to the post of President in the Municipality. Further it was contended that the definition of the 'councillor' in the Act and the language of Rules made thereunder does not exclude nominated councillors from voting in the election to the post of President.

Respondents opposed the plea:

Senior Counsel S S Naganand appearing for respondent submitted that Petitioners have no right to get elected to the post of President and therefore, have no locus to question the further proceeding. Moreover, there is no pleading in the writ petition as to what is the basic structure of the Constitution and how Article 243-R(2)(a) constitutes the basic structure of the Constitution.

It was also said that Article 243-ZF constitutes an embargo that voting rights cannot be given to nominated members. Section 11(1)(b) of the Act is in consonance with Article 243-R(2)(a) of the Constitution of India. The right to vote and contest an election are not fundamental rights but at best are constitutional rights. It is also urged that there is a presumption in favour of constitutionality of the provision and the petitioner has miserably failed to rebut the aforesaid presumption. The nominated members have no right to vote and the meeting recognized by the Act is either the special general meeting or an ordinary meeting and in a meeting of the Council, the President of the Council is elected.

The Additional Government Advocate Mahendra Gowda submitted that the right to vote is a statutory right and in the absence of violation of any fundamental right, the writ petition is not maintainable. It is also submitted that neither Article 243R (2) nor Section 11(1)(b) of the Act violate the basic structure of the Constitution of India.

The counsel for central Government Advocate M N Kumar said petitioners have not pleaded in the writ petition that either the Parliament lacks power to amend the Constitution or Article 243R (2) violates the Fundamental Right guaranteed in Part II of the Constitution or is violative of basic structure of the Constitution of India. Therefore, the prayer for declaring proviso to Article 243R (2) as ultra vires cannot be granted. Nominated members of the Council fall in different class and therefore, cannot claim equality with the elected members of the Council.

Court findings:

The bench relied on Supreme court judgements and said, "There is a presumption of Constitutional validity of a provision and the burden is on the person to plead and prove its unconstitutionality. It is trite law that the party invoking the protection of Article 14 has to make an averment with details to sustain such a plea and has to adduce material to establish its allegations and the burden is on the party to plead and prove that its right under Article 14 has been infringed."

It added, "It is a well settled legal proposition that Article 14 can be invoked if unequals are treated equally or equals are treated differently. It is equally well settled in law that mere differentiation or inequality of treatment does not per se amount to discrimination the inhibition of equal protection clause and to attract Article 14 it is necessary to demonstrate that selection or differentiation is unreasonable or arbitrary and does not rest on any rational basis having regard to the object which the legislature has in view while making the law in question."

Further it said, "It is trite law that party invoking the protection of Article 14 has to make an averment with details to sustain such a plea and has to adduce material to establish its allegations and the burden is on the party to plead and prove that its right under Article 14 has been infringed."

Noting that the nominated and elected members cannot be treated as belonging to one class. The fundamental difference is that the elected Councillors are elected to the office by a popular vote whereas, nominated members are appointed as Councillors.

The bench then relied on the judgement of the Supreme Court in the case of Ramesh Mehta Vs Sanwal Chand Singhvi, (2004) 5 SCC 405 and said, "Thus, the Supreme Court itself while dealing with scope and ambit of Article 243R held that the Constitution itself makes a distinction between elected members and nominated members who play essentially an advisory role."

Accordingly it held that the challenge to the validity of Article 243R (2) (a) that it violates Article 14 of the Constitution of India, fails.

The bench also opined, "There is no pleading in the writ petition as to what is the basic structure of the Constitution and how Article 243R (2) (a) violates the basic structure of the Constitution. In the absence of any pleading on the aforesaid aspect of the matter, the challenge to Article 243R (2) (a) on the ground that it violates the basic structure of the Constitution deserves to be repelled in limine."

The court also clarified that, "On Conjoint reading of Section 42(2) of the Act and Rule 3 of the Rules leaves no iota of doubt that the President has to be elected in a meeting of the Council. Therefore, the contention that the bar which disentitles the nominated members to vote in the meeting for election to the post of President and Vice-President of the Council does not apply to a meeting held for election to the post of President and Vice-President of the Council does not deserve acceptance."

Similarly, the contention that Section 2(6), Section 42(2) of the Act entitles the nominated member to vote for election for the post of President of the Council is concerned, the same deserves to be repelled in view of bar contained in Article 243R(2) and in Section 11(1) of the Act.

Accordingly it dismissed the petition.

Case Title: Lakshmikanta and Other v. State of Karnataka

Case No: WP 4457/2022

Citation: 2022 LiveLaw (Kar) 124

Date of Order: April 18, 2022

Appearance: Senior Advocate S Sriranga a/w Advocate Sumana Nanand for petitioners; Advocate Mahendra Gowda a/w Advocate Vani H for R1, R2, R4; Senior Advocate S S Naganand a/w Advocate Kusuma Ranganath for R5; Advocate M N Kumar for R7