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1987 Supreme(Kar) 391
Karnataka High Court
D.R.Shivappa Gowda - Appellant
Versus
Chief Secretary, Zilla Parishad - Respondent
Decided On : 12-03-87
The disqualification imposed by the Karnataka Local Authorities (Prohibition of Defection) Act, 1987 on members of local bodies who defect from one party to another is not a penalty for an offence, but a disability imposed to prevent defections and ensure the stability of local governments. Therefore, the Act is not violative of Article 20 (1) or Article 14 of the Constitution.
Headnote:
ANTI-DEFECTION LAW - INTERPRETATION - RETROSPECTIVE EFFECT - VALIDITY - ARTICLE 20 (1) OF THE CONSTITUTION - PROTECTION AGAINST PENALTY - DISQUALIFICATION - OFFENCE - FORFEITURE OF PROPERTY - ARTICLE 14 OF THE CONSTITUTION - ARBITRARINESS - APPLICABILITY OF THE ACT DURING THE PERIOD 13-3-1987 AND 5-5-1987 - UNWORKABILITY OF THE PROVISIONS.
Fact of the Case:
The petitioners, who were elected as members of various mandal Panchayats in Karnataka, challenged the validity of the Karnataka Local Authorities (Prohibition of Defection) Act, 1987 (the Act), which imposed certain disqualifications on a Councillor or member belonging to any political party from voting or abstaining from voting in any meeting of the Zilla Parishad and Mandal Panchayat, contrary to any direction issued by the political party to which he belongs or any person or authority authorised in this behalf without obtaining in either case the prior permission of such political party, if such voting or abstention have not been condoned by such political party, person or authority within 15 days of such voting or abstention. The petitioners contended that the Act was violative of Article 20 (1) of the Constitution, which prohibits conviction for an offence except for violation of a law in force at the time of the commission of the act charged as an offence, and that the disqualification imposed by the Act amounted to a penalty for an offence not in force at the time of their alleged defection. They also argued that the Act was arbitrary and violative of Article 14 of the Constitution, as it applied only to defections committed after the Act came into force, while those who had defected before the Act came into force were not subject to any disqualification.
Finding of the Court:
The Court held that the Act was not violative of Article 20 (1) of the Constitution, as the disqualification imposed by Section 3 of the Act was not a penalty for an offence, but a disability imposed on persons who defect from one party to another. The Court also held that the Act was not arbitrary and violative of Article 14 of the Constitution, as the legislature had a legitimate interest in preventing defections and ensuring the stability of local governments. The Court further held that the Act could be applied retrospectively to defections committed between 13-3-1987 and 5-5-1987, as the legislature had expressly provided for such retrospective effect in Section 1 (2) of the Act.
Issues: 1) Whether the Act was violative of Article 20 (1) of the Constitution? 2) Whether the Act was arbitrary and violative of Article 14 of the Constitution? 3) Whether the Act could be applied retrospectively to defections committed between 13-3-1987 and 5-5-1987?
Ratio Decidendi: 1) The disqualification imposed by Section 3 of the Act was not a penalty for an offence, but a disability imposed on persons who defect from one party to another. Therefore, the Act was not violative of Article 20 (1) of the Constitution. 2) The Act was not arbitrary and violative of Article 14 of the Constitution, as the legislature had a legitimate interest in preventing defections and ensuring the stability of local governments. 3) The Act could be applied retrospectively to defections committed between 13-3-1987 and 5-5-1987, as the legislature had expressly provided for such retrospective effect in Section 1 (2) of the Act.
Final Decision: The Court dismissed the petitions, holding that the Act was valid and could be applied retrospectively to defections committed between 13-3-1987 and 5-5-1987.
( 1 ) THESE batch of writ petitions raise an important question of law touching the interpretation, of Article 20 (1) of the Constitution and the relevant provisions of the karnataka Local Authorities (Prohibition of defection) Act, 1987 (hereinafter referred to as the Anti-Defection Act ). The Karnataka legislature just on the eve of the elections to the Zilla Parishads and Mandal Panchayats which came to be constituted under the provisions of the Karnataka Zilla Parishads, taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983, issued an Ordinance called as 'karnataka local Authorities (Prohibition of Defection) ordinance, 1986. The Ordinance was promulgated on 29th December, 1986. By that Ordinance certain disqualifications were imposed on a Councillor or member belonging to any political party from voting or abstaining from voting in any meeting of the zilla Parishad and Mandal Panchayat, contrary to any direction issued by the political party to which he belongs or any person or authority authorised in this behalf without obtaining in either case the prior permission of such political party, if such voting or abstention have not been condoned by such political party, person or authority within 15 days of such voting or abstention.
( 2 ) SECTION 1 of the Ordinance provides that it comes into force at once. Section 3 of the Ordinance enumerates the grounds for disqualification on the ground of defection. Section 4 of the Ordinance provides the machinary for disqualifying the candidate on the ground of defection. Section 11 of the zilla Parishads Act was amended by insertion of Clause (1a ). It reads as under:"a person shall be disqualified for being a Councillor if he is so disqualified under the Karnataka Local Authorities (Prohibition of Defection) Ordinance, 1986. "likewise, after sub-section (1) of Section 154 of the Zilla Parishad Act, sub-section 1a was incorporated as follows: "a person shall be disqualified for being a member of the Zilla Parishad if he is so disqualified under the Karnataka local Authorities (Prohibition of Defection) Ordinance, 1986. " this Ordinance, as noticed earlier, was brought into force on 29-12-1986, obviously because the Legislature was not in Session and that is the reason the Governor in exercise of his legislative power under article 213 of the Constitution promulgated this Ordinance. This Ordinance was laid before the Assembly after re-assembly of the legislative Assembly and it ceased to operate at the expiration of six weeks from the re-assembly of the Legislature. But it is not disputed that the Bill to pass the Anti- defection Act was introduced on 30-1-1987. The Assembly passed the same on 5-2-1987. The Bill was sent to the Upper House i. e. , the Legislative Council on 6-2-1987 and the legislative Council passed the same on. 12-3-1987 with certain amendments. With these amendments, the Bill was passed again by the Assembly on 1-4-1987. The governor's assent was obtained on 2-5-1987 and the Act after the assent of the Governor was published on 5-5-1987.
( 3 ) ACCORDING to the petitioners, the ordinance lapsed on 13. 3. 1987 since the' same was not approved before the expiration of six weeks period by a resolution of the assembly and therefore during the period 13-3-1987, on which date it ceased to operate and the period 5-5-1987 on which date the anti-Defection Act came into force, there was no law at all disqualifying the candidate in terms of Section 3 of the A. D. Act. It is common ground that election to the posts of pradhan and Upa-Pradhan of the various mandal Panchayats were held between 8th april and 25th April, 1987. So, according to the petitioners, the elections which were held between these two dates were not covered by the Anti- Defection Law since there was no law in force between 13-3-1987 and 5-5-1987. Their further contention is that notwith standing the fact the Act was made applicable with effect from 29-12-1986, that act could n
