February 11, 2021 3:18:46 am
Citing that its interference at this stage will result in “undue delay” of election process, the Gujarat High Court on Wednesday rejected a bunch of petitions challenging the State Election Commissions’s (SEC) decision to not implement rotation of reserved seats in the elections to district panchayats in Tapi, Gandhinagar and Anand.
The judgment delivered by a division bench of Justices JB Pardiwala and Ilesh Vora, however, held that the petitions were maintainable. The SEC had opposed the petitions primarily on the ground that they were non-maintainable in light of Artice 243-O of Constitution of India.
“Having taken the view that the writ-applications are maintainable, we could have gone into the second issue on merits. However, considering the election programme as referred to above, we decline to enter into the second issue having regard to the time now left for holding the elections and any interference at this stage would result in undue delay of the election process,” the caveat judgment noted.
Advocate Anand Yagnik, who was representing some of the petitioners, cited the example of seats for villages Borda and Chimer in Songadh taluka of Tapi.
These seats were reserved for Scheduled Tribe [Woman], during the local body elections in 2010, 2015 and 2020, in violation of Gujarat Taluka and District Panchayats Election (Manner of Allotment of Reserved Seats by Rotation) Rules, 1994, more particularly, the (Amendment) Rules, 2015.
It was prayed through the petition that instead the two seats be reserved for ST General category this time.
“This rotational policy is a safeguard against the possibility of a particular seat being reserved in perpetuity,” advocate Yagnik stated. Also representing the petitioners were advocates KP Champaneri, CP Champaneri and Dharmesh Gurjar.
The main argument put forth by SEC and the state, while opposing the petitions, was that such petitions concerning electoral issues are not maintainable at this stage since there is bar to the same under Article 243-O, given that the election process shall be deemed to have commenced once the election schedule circular is notified.
Relying on several judgments of the Supreme Court and high courts, the bench held that Article 243-O of the Constitution “does not per se bar judicial review, which is part of the basic structure of the Constitution, although such jurisdiction should not ordinarily be exercised,” while also observing that the bar on interference by courts in electoral matters should be understood as the bar against the ordinary courts and not against the Constitutional Courts (HCs and SC).
The bench further noted that when it comes to electoral matters, the High Court already exercised self-imposed limitations and refuses to interfere with the election process once the election notification is issued.
“But, where the constitutional validity of an Act or a Rule or provision of an Act affecting the election is challenged.., the High Court has got ample power to render justice by exercising the power of judicial review,” the caveat judgment said.
While the State argued that the right to contest election is not a fundamental right, the court highlighted that it may be said to be a Constitutional right.
However, in light of the fact that the electoral process is already “well underway”, the bench ruled that the “High Court should not intervene even when the elections are imminent.”
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