Validity of removal of office of a Councillor after the election results were announced

• JUDGMENT SUMMARY: Dhirendra Pandua vs State of Orissa &Ors
• DATE OF JUDGMENT:19/09/2008
• JUDGES: Justice C.K. Thakker and Justice D.K. Jain
• REFERENCE: AIR 2009 SC 163

SUBJECT: 

The judgment revolves around the validity of removal of office of a Councillor after the election results were announced.  

FACTS: 

The appellant and one of the respondents in the instant case were elected as the Councillors of two different municipal wards.  The appellant was further elected as the Chairperson of the Municipal Council.  The respondent confronted with this election filed a petition in the Election tribunal challenging its validity contending that the appellant was a leprosy patient and hence was barred to contest elections under section 16(1)(iv) and 17(1)(b)of the Orissa Municipal Act.  The tribunal decided in favour of the respondent and disqualified the appellant from assuming the office.  The appellant appealed before the High Court challenging the tribunal’s decision, but the petition was dismissed therefore as a last resort he filled a Special Leave Petition (SLP) under Article 136 of the Indian Constitution before the SC.

IMPORTANT PROVISIONS:

The Indian Constitution:

• Article 14: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

The Orissa Municipal Act:

• Section 16(iv):No person shall be qualified for election as a Councillor of a Municipality if such personhas been adjudged by a competent Court to be of unsound mind or is a leprosy or a tuberculosis patient
• Section 17(b):  Subject to the provisions of Section 38, a Councillor shall cease to hold his office, if hebecomes of unsound mind, a leprosy or a tuberculosis patient.
• Section 19(1):  The petition shall be presented before the District Judge, together with a deposit of two hundred rupees as security for cost within fifteen days, after the day on which the result of the election was announced and shall specify the ground or grounds on which the election of the opposite party is questioned and shall contain a summary of the circumstances alleged to justify the election being questioned on such grounds.
• Section 38:(1) Whenever it is alleged that any person, who has been elected as Councillor is disqualified under Section 16 or 17 and such person does not admit the allegation or whenever any Councillor himself is in doubt, whether or not he has become qualified for office under Section 16 or 17, such Councillor or any other Councillor may, and the Chairperson at request of the Municipality shall apply to District Judge of the district in which the Municipal area is situated.

ISSUES:

1. Whether sections 16 and 17 of the Orissa Municipal Act were constitutionally valid?
2. Whether the removal of office of the appellant was valid?
3. Whether the petition of the respondent before the district judge was barred by limitation?

ANALYSIS OF THE JUDGEMENT:

The appellant in the present case was a leprosy patient however he produced documents before the Court to prove that he was completely cured from the disease and hence was fully qualified to contest and be elected as a representative.  Elaborating his stand, he submitted that,

• As per section 19 of the Orissa Municipal Act a petition for challenging the election has to be submitted within 15 days from the declaration of results.  However, the respondent has failed to comply with this condition and hence his petition is barred by limitation. 
• The medical reports submitted before the Court itself clearly shows that the appellant has completely recovered from the disease. 
• Also, disqualifying a person from contesting elections on the basis of a disease was violative of Article 14 of the Indian Constitution. 

Rebutting these contentions, the respondents submitted that,

• The petition was not filled under section 19 but under section 38 which prescribes no time period for a co-contestant to challenge the election process and therefore the petition was not barred by limitation.  
• The medical experts based on their research has concluded that, leprosy is an incurable and communicable disease. 
• The provisions which bared the appellant from contesting were constitutionally valid as it amounts to reasonable restrictions in the interest of larger public.

Upon hearing the parties, the Court held that, the petition filed by the respondent was valid as per section 38 of the Act.  Further, the medical examinations and expert opinions in the instant case clearly shows that leprosy is incurable and communicablevia droplets from nose and mouth of the infected person through close and frequent contacts.  Therefore, the appellant was incapable of contesting elections and hence the decision of the HC and the tribunalwas justified. 

CONCLUSION:

Being affected by a disease is no sin or crime. However, adding on to the misery if that disease is communicable the patient will have to distant himself from the fellow beings. This not just affects his mental health but also leaves a traumatic impact on his recovery process especially when it is incurable as in the present case.  However, the Court considering larger public interest upheld the validity of the provisions under the Act calling it to be reasonable restrictions in the interest of public health.