ELECTION CERTIFICATES OF ALL COUNCILLORS DOESN’T MENTION NAME OF POLITICAL PARTY ON WHICH THEY GOT ELECTED
CHANDIGARH – The election to the posts of Mayor, Senior Deputy Mayor and Deputy Mayor of Municipal Corporation of Chandigarh (MCC) which are conducted annually i.e. for one year usually in the beginning of every Calendar year have been conducted today 17 Jan 2023 wherein Anup Gupta of BJP has been elected Mayor by defeating AAP’s fielded candidate Jasbir Singh by one vote. Similarly both nominees fielded by BJP also bagged posts of Senior Deputy Mayor and Deputy Mayor by trouncing AAP’s counterparts also by a margin of one-one vote each.
After 6 Councillors of Cong and 1 of SAD decided to abstain from this year Mayoral posts, the tally of both BJP and AAP was tied at 14 each. Hence, actually the victory of all three BJP nominees is courtesy tie-breaker vote cast by local Lok Sabha BJP MP Kirron Kher who also has voting right in Mayoral polls. A year ago in Jan 2022 too BJP’s Sarabjit Kaur was elected Mayor by defeating AAP’s Anju Katyal by single vote. Pertinent that today’s elected Mayor Anup of BJP last year got elected as Deputy Mayor.
Meanwhile, an Advocate at Punjab & Haryana High Court, Hemant Kumar, has once again raised an interesting but significant point that although in the current MCC House for which General Elections were conducted in Dec, 2021 in which out of total 35 wards, Aam Aadmi Party (AAP) won in 14, BJP in 12 (currently 14 after incoming of 2 Councillors won on Cong ticket), Congress in 8 ( currently 6 after outgoing of its 2 Councillors) and Shiromani Akali Dal (SAD) in 1 but the fact is that actually or in other words technically if not legally speaking, all the 35 elected Councillors in current MCC House are party-less i.e. they don’t belong to any Political Party since the Election Certificate(s) as issued to all of them after they all were declared elected from their respective Ward by concerned Returning Officer (R.O.) in MCC General Elections-2021 which is issued in Form 19 under Rule 75 of MCC (Election of Councillors) Rules, 1995 doesn’t mention the name of their respective Political Party i.e. on which Party they contested MCC election and got elected as Ward Councillor.
However, the Advocate asserts that in the Election Notification issued under the seal and signature of then State Election Commissioner(SEC), UT Chandigarh, SK Srivastava on 28 Dec 2021 in pursuance of Section 17 of Punjab Municipal Corporation Law (Extension to Chandigarh) Act, 1994 mentions (Political) Party affiliation in respect of all 35 elected Councillors from all wards to MCC.
Hemant asserts that Rule 75 of MCC (Election of Councillors) Rules, 1995 stipulates that as soon as may be after a candidate has been declared by the Returning Officer (R.O.) under rule 74 to be elected, the R.O. shall grant to such candidate a certificate of election in Form 19 and obtain from the candidate an acknowledgement of its receipt duly signed by him and immediately send the acknowledgement to the Election Commission.
Furthermore, even in the Form 19 in above 1995 Rules, there is no mention of the Political Party of the candidate who has been declared elected. Hence, one wonders if and how the SEC, UT Chandigarh included the Political Party affiliation of all 35 elected Councillors in the Election Notification issued by it and published in Official Gazette dated 28 Dec 2021 of Chandigarh Administration ?
Hemant legally opines that the basic document in any public body election is the Election Certificate issued by concerned R.O. to the winning/returned candidate who is declared elected after completion of counting of Votes. The Election Notification issued by the concerned Election Commission is merely notifying the names( in official Gazette) of duly elected candidates as declared elected by the concerned R.O.
If there is no mention of the Political Party of the winning candidate on the Election Certificate itself issued by the concenred R.O. as is the case in MCC Elections, the SEC, UT Chandigarh ought not have mentioned the same in the Electon Notification issued by it. Indeed, Hemant wrote to SEC, Chandigarh as well as senior functionaries of UT Chandigarh Administration on 29 Dec, 2021 complaining/protesting against mention of Political Affiliation of newly elected Councillors of MCC but he is yet to receive any sort of reply even after passage of more than a year.
As far as the election of MP or MLA is concerned, there is very much mention of the Political Party of winning candidate in relevant Form as is issued by concerned R.O. under Conduct of Elections Rules, 1961, asserts Hemant.
It must be recalled that right before the MCC General Elections, Hemant had even sent a memorandum cum legal representation to then SEC, UT Chandigarh along with all senior functionaries of UT Chandigarh Administration questioning the conduct of MCC Elections on political party basis means on party symbols of Political Parties which however has been going on since Dec,1996 (i.e. first ever General Elections of MCC) notwithstanding that there is no provision for the same in Punjab Municipal Corporation Law (Extension to Chandigarh) Act, 1994, as amended till date, although SEC, UT Chandigarh still went ahead and issued a Symbols Order facilitating allotment of party symbols to all those who were fielded by recognized National and State Parties viz. BJP, Cong, AAP, SAD, BSP etc.
Be that as it may, Hemant once again legally and categorically asserts his point by pointing out that since Election Certificates as issued to all winning candidates by concerned R.O.s in all 35 wards of MCC doesn’t mention the name of Political Party of the concerned winning candidate, it clearly substantiates that above referred 1994 MCC Act and 1995 Election Rules framed thereunder don’t recognize the Political Parties of elected councillors i.e. conduct of elections to MCC on party symbols of Political Parties goes against the prevalent law governing MCC.
In view of the above all the 35 Elected Candidates don’t belong to their concerned Political Party as the same is not mentioned on their Election Certificates as issued by concerned R.O. Hence, they can easily and freely defy with impunity any direction or whip issued by the Political Party which fielded them at the hustings. Moreover, there is no provision(s) for Anti-Defection in 1994 MCC Act till date on the lines of Tenth Schedule to the Constitution of India.
When asked what if SEC, UT Chandigarh has mentioned the names of political parties of winning candidates in the Election Notification as issued by it, Hemant says that when there is not even definition or reference of Political Party in Punjab Municipal Corporation Law (Extension to Chandigarh) Act, 1994 till date, then legally SEC can’t provide for the same on its own while exercising its constitutional powers under Article 243 ZA (1) of Constitution of India since that power is subjected to Article 243 ZA (2) i.e. subject to law and provisions made by the appropriate Legislature (In case of MCC, the Parliament of India)
