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Violation of statute in MLCs' retirement: HC

The Patna High Court on Tuesday observed that there had been a violation of constitutional mandate with regard to the biennial retirement of members of Legislative Council (MLCs) in the State.

india Updated: Nov 04, 2009 00:00 IST
Prashant Pratap

The Patna High Court on Tuesday observed that there had been a violation of constitutional mandate with regard to the biennial retirement of members of Legislative Council (MLCs) in the State.

Taking a serious note of the matter, the court ordered the State Government, Election Commission of India and the State Legislative Council to ensure that the wrong, pertaining to the biennial retirement of one-third of MLCs, was undone within 90 days so as to put into practice the constitutional mandate enshrined in Article 172.

While hearing a public interest litigation (PIL) petition of Chhaya Sarkar, a non-governmental organisation (NGO), a division bench, comprising acting Chief Justice Shiva Kirti Singh and Justice Shyam Kishore Sharma, directed all the authorities concerned "to exercise every legislative, executive and administrative powers as may be deemed necessary to ensure that the constitutional mandate in this regard may not be disregarded further."

The petitioner had sought court's intervention to ensure that one-third of the total 75 MLCs should retire every two years seeking as per Article 172 of the Constitution.

The petitioner claimed that as per Article 172 (2) of the Constitution, one-third MLCs retired after every two years in other states but in Bihar the retirement pattern of Elders was irregular. Placing a chart on record, the petitioner said 24 MLCs had retired in 2009; seven would retire in 2010, four in 2011, 23 in 2012, 17 in 2013 and 23 in 2014.

Taking a serious view, the bench said it was the joint duty of the legislature, executive and the judiciary to comply with the mandate of the Constitution. "Here we are satisfied that there is a violation of a constitutional mandate. The continued violation of constitutional mandate can't be permitted," the court observed.

While posting the matter for further monitoring after 30 days, the bench asked all the authorities concerned to furnish a proposed action plan as well as details of the steps taken to rectify the wrong by the next date of hearing.

Advocate JP Karn filed an affidavit on behalf of the Election Commission (EC) stating that the term of MLCs was of six years but it could be curtailed to ensure that one-third of the Upper House members retire every second year. KK Jha filed an affidavit on behalf of the Council secretariat stating that it was for the Centre, State government and the EC to take a decision the issue. Whenever there was a vacancy owing to resignation, retirement or death of any member, the Council informed the EC, the affidavit said.

Sometimes the seats were left vacant for a long period, it said, adding that no vacancies were filled from local body constituencies from 1973 to 2003. Similarly, 12 members were nominated after a long period in 2006, it added..

After hearing the parties, the court observed: "It appears that the authorities concerned (Bihar Government, EC and the State Legislative Council) have failed to keep in mind the constitutional mandate with regard to the staggered term of office of the MLCs." As a result, instead of holding staggered election or nominating members for a limited period on notional calculation of each vacancy, the MLCs had been elected /nominated for full term of six years since 2003, it added.