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Safeguarding Local Democracy

AAP’s Kuldeep Kumar breaks down after his defeat in the Chandigarh mayoral polls in Chandigarh on January 30, 2024. The Supreme Court on february 20, 2024 declared Mr. Kumar as winner.
| Photo Credit: PTI

On February 20, a three-judge Bench of the Supreme Court led by Chief Justice of India D.Y. Chandrachud used its plenary powers to declare Kuldeep Kumar, the Aam Aadmi Party (AAP) candidate, as the validly elected Mayor of the Chandigarh Municipal Corporation. With CCTV visuals indicating that the presiding officer had defaced some ballot papers in the mayoral polls, the Supreme Court conducted a physical examination of the ballots to determine the winner. The Court observed that in such cases it is duty-bound to intervene under Article 142 of the Constitution to ensure that “democracy is not allowed to be thwarted by such subterfuges”.

However, just before the Court’s verdict, three AAP councillors from Chandigarh joined the BJP. With the help of these defections, BJP candidates won the elections to the posts of deputy and senior deputy Mayor held on March 4. With the BJP now having a majority in the council and the Mayor possessing limited independent powers, the INDIA alliance has essentially lost control over the municipal corporation.

The shenanigans in Chandigarh raise multiple questions regarding local democracy: the fair administration of local elections; the problem of local-level defections; and the challenge of ensuring democratic governance in Union Territories (UTs).

Administering local elections

While elections to local governments are conducted by respective State Election Commissions, indirect mayoral elections follow an internal process. As per Section 60 of the Punjab Municipal Corporation Act 1976, which has been extended to Chandigarh, the meeting for the election of the Mayor shall be convened by the Divisional Commissioner, who nominates a councillor, who is not a candidate for the election, to preside the meeting. Accordingly, Anil Masih, a nominated councillor, was nominated as the presiding officer for the meeting to elect the Mayor.

The problem here is that the municipal law allows the bureaucracy to appoint any councillor to preside over the election of the Mayor. In fact, in the 2022 Chandigarh mayoral elections, an elected BJP councillor was nominated as the presiding officer and the BJP mayoral candidate won by one vote after the vote of an AAP councillor was invalidated. It is in this context that the AAP candidate sought a court-monitored election this time and the Chandigarh administration agreed for the election process to be video-recorded. With depleting trust in internal election processes, it is important for municipal laws to institute stronger systems that ensure a free and fair process for indirect elections.

The prospect of defections

The other key issue the Chandigarh fiasco raises is the challenge of defections in local councils. After three AAP councillors defected to the BJP, the counsel representing the BJP Mayor as well as the Solicitor General of India submitted before the Supreme Court that fresh mayoral polls could be held. However, the Court held that setting aside the entire election merely due to the presiding officer’s unlawful action would result in the “destruction of fundamental democratic principles” and used its inherent powers to declare the winner. Such a timely intervention prevented “horse-trading” in the mayoral elections, but could not avert a defection-enabled result in the subsequent deputy Mayors’ elections. This reveals the fundamental limitations of judicial interventions that seek to fix deep political conundrums.

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In case of defections in local governments, the scope for the court’s intervention is limited since the anti-defection law under the 10th Schedule of the Constitution does not apply to panchayats and municipalities. Hence, moral and ethical questions aside, the BJP’s win in the deputy mayoral polls is not strictly illegal. While States such as Karnataka and Kerala have passed specific laws prohibiting defections in local governments, in most States there are no clear statutory restrictions against defections. While political parties were initially envisioned to play a non-dominant role in local elections, the party-political nature of local governments is now a reality that cannot be ignored. Hence, there is a need to adopt clear statutory measures that can curb defections at the local level.

The Chandigarh case also raises the larger challenge of ensuring local democracy in UTs, which have become flashpoints as the Centre expands its authority. In UTs with legislative assemblies, like Delhi and Puducherry, it sought to empower the Lieutenant Governor over the elected government. In UTs without legislative Assemblies, like Lakshadweep, the Centre-appointed administrator introduced sweeping legislative measures that locals have objected to.

Editorial | Flagrant fraud: On the Chandigarh mayoral election

The Centre’s insatiable appetite for power does not preclude any political forum, whether it’s a State, UT, or municipality. So, after attempts to enfeeble the elected government of Delhi failed, it sought to control the Municipal Corporation of Delhi by allowing nominated councillors to vote, which was thwarted by the Supreme Court last year. The ongoing political skullduggery in Chandigarh is the latest instance of an attempted power-grab. With the creeping centralisation of the Indian state, it is important to apply the principles underlying federalism and democracy to the elected forums of UTs and local governments as well. In UTs without legislative Assemblies, it is important to safeguard local governments as they are the only democratically accountable institutions in their jurisdiction.

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