A Division Bench of the Allahabad High Court has referred to a larger bench a bunch of petitions that challenged notification for elections to zila and kshetra panchayats before gram panchayat polls.
The Bench held that although notification for elections to zila panchayats and kshetra panchayats has been issued, the petitions must be entertained as those challenged the very basis of the election process.
Usually, once an election process is set in motion, the courts do not entertain writ petitions against the process citing restrictions under Article 243-O of the Constitution.
The Division Bench of Justices Arun Tandon and Ashwani Kumar Mishra had been hearing a total of 52 pleas — the lead petition being that of Suresh Jaiswal — on a day-to-day basis since September 22.
The pleas contended the whole exercise of electing kshetra panchayats and zila panchayats would be a “farce” as elections to gram panchayats were not being held. The gram panchayats, the pleas said, were the basis for intermediary and district level polls. The government had taken the plea that the reservation for gram panchayats were not finalised, hence it was going ahead with kshetra and zila panchayats polls.
On September 24, a bench headed by Chief Justice D Y Chandrachud had passed an order dismissing a PIL, filed by one Rishipal Singh, which had similar submissions, citing Article 243-O of the Constitution.
Subsequently, on September 28, the state government submitted this decision before the Division Bench, seeking rejection of the all the writ petitions.
On September 29, Justices Tandon and Mishra after hearing the submissions from both sides referred the matter to a larger bench, which would be constituted by the High Court Chief Justice.
The Division Bench said: “This Bench finds it difficult to accept the law as laid down by the Division Bench (led by Chief Justice) of this court to the effect that reservation of seats for the elections is under challenge, but once the notification for election of zila panchayat has been issued, it would not be appropriate or proper for the Court to entertain the petition once the electoral process has been initiated, in view of the Constitutional bar contained in Article 243-O of the Constitution of India.”
The court cited several Supreme Court orders, particularly, a Constitutional Bench order in which Article 226 was held to be the basic feature of the Constitution. The court argued that Article 243-O was for self-appointed restraint of the court, so that raising of procedural issues before it do not impact the election process.
The six questions framed by the Division Bench — to be decided by the larger bench — primarily pertain to whether such petitions, in which the basis of implementation of election laws are under challenge, can be heard or dismissed in the light of Article 243-O.
Another question was whether those questioning the reservation scheme would be left without any remedy, as such issues were not entertained in an election petition. Finally, it also asked the question whether the law laid down by the Bench, headed by Chief Justice, in the Rishipal Singh case was correct.
The petitioners had made three main submissions. They argued for electing kshetra panchayats and subsequently zila panchayats, the elections to the gram panchayat would be the first step.
However, the Government Order issued September 5 provided that the issues like reservation of seats at the gram panchayat level would be held at a later stage.