Gauhati High Court
Page No.# 1/7 vs The State Of Assam And 5 Ors on 1 February, 2021
Page No.# 1/7
GAHC010114852020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : PIL/51/2020
SAMARJIT HAFLONGBAR AND 3 ORS.
S/O. LT. G.C. HAFLONGBAR, R/O. HAFLONG TOWN, NEAR FISHERY
OFFICE, P.O./P.S. HAFLONG-788819, DIST. DIMA HASAO, ASSAM.
2: DANIEL LANGHASA
S/O. LT. NINDU LANGTHASA
VILL. SAINJA RAJI
P.O./P.S. HAFLONG-788819
DIST. DIMA HASAO
ASSAM.
3: DETHANG NAIDING
S/O. LT. S.M. NAIDING
VILL. GADAIN RAJI
P.O./P.S. HAFLONG-788819
DIST. DIMA HASAO
ASSAM.
4: MOHENDRA KEMPRAI
S/O. SRI PHOGENDRA KEMPRAI
VILL. BOILDURA
P.O./P.S. HAFLONG-788819
DIST. DIMA HASAO
ASSAM
VERSUS
THE STATE OF ASSAM AND 5 ORS.
REP. BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM, HILLS
AREA DEPTT., DISPUR, GUWAHATI-06.
2:THE CHIEF SECRETARY
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GOVT. OF ASSAM
DISPUR
GUWAHATI-06.
3:THE SECRETARY
TO THE GOVERNOR OF ASSAM
RAJ BHAWAN
UZAN BAZAR
GUWAHATI-04.
4:THE PRINCIPAL SECRETARY (T)
NORTH CACHAR HILLS AUTONOMOUS COUNCIL
HAFLONG-788819
DIMA HASAO
ASSAM.
5:THE PRINCIPAL SECRETARY (N)
NORTH CACHAR HILLS AUTONOMOUS COUNCIL
HAFLONG-788819
DIMA HASAO
ASSAM.
6:DEBOLAL GORLOSA
CHIEF EXECUTIVE MEMBER
NORTH CACHAR HILLS AUTONOMOUS COUNCIL
HAFLONG-788819
DIMA HASAO
ASSAM
Advocate for the Petitioner : MR B D DAS
Advocate for the Respondent : GA, ASSAM
BEFORE
HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA
HON'BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
ORDER
Date : 01-02-2021
(Sudhanshu Dhulia, C.J.)
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Heard Mr. B. D. Das, learned senior counsel for the petitioner. Also heard Mr. H. K.
Hazarika, learned Junior Government Advocate for the respondent Nos. 1, 2 and 3 as well as
Mr. R.M. Das, learned counsel for the respondent Nos. 4 and 5 and Mr. D. Saikia, learned
senior counsel for the respondent No. 6.
2. By means of this Public Interest Litigation (PIL), the petitioners before this Court have
sought for a direction in the nature of mandamus to debar the respondent No. 6 from
functioning as Chief Executive Member of North Cachar Hills Autonomous Council and also for
a direction that the powers be assumed by the respondent No. 3 in terms of the provisions
which are given in the 6th Schedule to the Constitution of India.
3. The petitioner No. 1, Shri Samarjit Haflongbar is an Ex-MLA and Ex-CEM of North
Cachar Hills Autonomous Council, the petitioner No. 2 Daniel Langthasa is an elected member
of North Cachar Hills Autonomous Council, the petitioner No. 3 Shri Dethang Naiding is a
former President of Jadhike Naisho Hoshom for five years and the petitioner No. 4, Shri
Mohendra Kemprai, is the ex-President of All Dimasa Students Union of Dima Hasao District
Committee.
4. The case of the petitioners is that the North Cachar Hills Autonomous Council was
created under the 6th Schedule to the Constitution of India and it is the oldest Council under
the 6th Schedule and as per para 2 (6A) of the 6 th Schedule, elected member of District
Council shall hold its term for a period of 5 years unless the District Council is dissolved. The
petitioners further state that the last election of North Cachar Autonomous Council was held
in the month of January, 2019 and the respondent No. 6 was elected a member of the
Council and, thereafter, was appointed as the Chief Executive Member.
5. The respondent No. 6 is a militant-turned-politician and is in the main stream because
of the Tripartite Memorandum of Settlement entered between Central Government, State
Government and the Militants.
6. The case of the petitioners is that two charge-sheets, being Charge sheet No.2/2008
and Charge sheet No.6/2008, were filed against the respondent No. 6 in the year 2008
pertaining to heinous crimes. Thereafter, another Charge-Sheet, being Charge Sheet No.
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2/2020, is also filed against the respondent No.6 under Section 302 IPC. Even though the
Charge-Sheet is of the year 2020, the offence in respect of which the Charge-Sheet has been
made, pertains to the year 2007. There is another FIR filed against the respondent no. 6 in
the year 2020.
7. The case of the petitioners is that the person against whom three charge-sheets have
been filed and, in two cases charges have also been framed and the charges are related to
heinous crime, such a person should not be allowed to function as a Chief Executive Member.
8. Mr. B. D. Das, learned senior counsel for the petitioners relies upon paragraph 152 of
the pronouncement of the Hon'ble Apex Court in Manoj Narula -versus- Union of India
reported in (2014) 9 SCC 1, wherein an observation was made by the Apex Court in
paragraph-148 stating that charge is framed under Section 228 of the Cr.P.C. only if the Judge
(the Magistrate-under Section 240 Cr.P.C.) is of the opinion that there is a ground for
presumption that the accused has committed an offence after consideration of opinion given
by the police under Section 173 of Sub-Section 2 of the Cr.P.C. Therefore, a plea is made that
a person against whom charge-sheet has been filed and charges are formulated under
Section 228 should not be made a minister.
9. Having gone through the judgment, however, we find that the Hon'ble Apex Court in
such judgment in paragraph 152 stated as under:-
"152. No doubt, it is not for the Court to issue any direction to the Prime
Minister or the Chief Minister, as the case may be, as to the manner in which
they would exercise their power while selecting the colleagues in the Council of
Ministers. That is the constitutional prerogative of those functionaries who are
called upon to preserve, protect and defend the Constitution. But it is the
prophetic duty of this Court to remind the key duty holders about their role in
working the Constitution. Hence, I am of the firm view, that the Prime Minister
and the Chief Minister of the State, who themselves have taken oath to bear
true faith and allegiance to the Constitution of India and to discharge their
duties faithfully and conscientiously, will be well advised to consider avoiding
any person in the Council of Ministers, against whom charges have been framed
by a criminal court in respect of offences involving moral turpitude and also
offences specifically referred to in Chapter III of the Representation of the
People Act, 1951."
10. Reference has been made by the learned counsel for the respondent No. 6 that in the
said case the Court had not passed any positive direction. To the contrary, there is an
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observation of the Court that there is no provision of law yet which debars such candidate
from being included as ministers. Mr. D. Saikia, learned senior counsel for the respondent No.
6 relies paragraph 64 of the said judgment which reads as under:-
"64. On a studied scrutiny of the ratio of the aforesaid decisions, we are
of the convinced opinion that when there is no disqualification for a person
against whom charges have been framed in respect of heinous or serious
offences or offences relating to corruption to contest the election, by
interpretative process, it is difficult to read the prohibition into Article 75(1) or,
for that matter, into Article 164(1) to the powers of the Prime Minister or the
Chief Minister in such a manner. That would come within the criterion of
eligibility and would amount to prescribing an eligibility qualification and adding
a disqualification which has not been stipulated in the Constitution. In the
absence of any constitutional prohibition or statutory embargo, such
disqualification, in our considered opinion, cannot be read into Article 75(1) or
Article 164(1) of the Constitution."
11. Reference has been made by the learned counsel for the respondent no. 6 to the
affidavit filed by the respondent No. 6 where reference is made on The Assam Autonomous
Districts (Constitution of District Councils) Rules, 1951 which provides for disqualification only
for such a person who has been convicted. The precise rule i.e. Rule 17(1)(f) reads as
under:-
"17.(1) A person shall be disqualified for being elected as, and for being, a member of
the District Council of an autonomous district.
(a) *** *** ***
(b) *** *** ***
(c) *** *** ***
(d) *** *** ***
(e) *** *** ***
(f) if, whether before or after the commencement of these rules, he has been
convicted by a court in India of any offence and sentenced to transportation or to
imprisonment for not less than two years, unless a period of five years, or such less
period as the Governor may allow in any particular case, has elapsed since his
release;"
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12. Sri Saikia would argue that the Rules provide for a disqualification only when there is a
conviction and the sentence is of not less than two years. But this is admittedly not the case
here.
13. Mr. D. Saikia, learned senior counsel for the respondent No. 6 has also relied upon a
judgement of the Hon'ble Apex Court in Public Interest Foundation and others vs. Union of
India and another, reported in (2019) 3 SCC 224, where a plea was made before the
Constitutional Court to lay down the disqualifications for a Member of Parliament and
Legislative Assembly. Paragraphs- 105 and 106 read as under:-
"105. Thus analysed, the directions to the Election Commission as sought
by the petitioners runs counter to what has been stated hereinabove. Though
criminalisation in politics is a bitter manifest truth, which is a termite to the
citadel of democracy, be that as it may, the Court cannot make the law.
106. Directions to the Election Commission, of the nature as sought in
the case at hand, may in an idealist world seem to be, at a cursory glance, an
antidote to the malignancy of criminalisation in politics but such directions, on a
closure scrutiny, clearly reveal that it is not constitutionally permissible. The
judicial arm of the State being laden with the duty of being the final arbiter of
the Constitution and protector of constitutional ethos cannot usurp the power
which it does not have."
14. Though the learned counsel for the petitioners reiterate the earlier directions being
given by the Apex Court in the case of Public Interest Foundation and others (supra)
regarding affidavits and declaration to be given by a person who is contesting for the post of
Member of Parliament or a Legislative Assembly, however, no law has been brought before
this Court regarding disqualification. It is not for the Court to lay down the disqualification
where there is none as prescribed by law as yet. The only provision of law on which reliance
has been made by the learned counsel for the petitioners is paragraph 16(2) of the 6 th
Schedule which relates to dissolution of district or regional council. Paragraph 16(2) reads as
under:
"16(2) If at any time the Governor is satisfied that a situation has arisen
in which the administration of an autonomous district or region cannot be
carried on in accordance with the provisions of this Schedule, he may, by public
notification assume to himself all or any of the functions or powers vested in or
exercisable by the District Council or, as the case may be, the Regional Council
and declare that such functions or powers shall be exercisable by such person
or authority as he may specify in this behalf, for a period not exceeding six
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months:
Provided that the Governor may by a further order or orders extend the
operation of the initial order by a period not exceeding six months on each
occasion."
15. The manner in which the aforesaid exercise is to be undertaken is laid down in 20BA of
the 6th Schedule. However this refers to an entirely different contingency where the Governor
can assume the charge of an autonomous council where the autonomous council is not being
run in accordance with the provision of the schedule or, in other words, the provision of law.
However, it is not the case before us. The case of the learned counsel for the petitioners is
not that the autonomous council, of which the respondent No.6 is the Chief Executive
Member, is not being run properly, but the case is that the respondent No.6, who is the Chief
Executive Member, should not be allowed to function as a Chief Executive Member as he has
already been charge-sheeted and charges has been framed by a Court of law against him and
the charges relate to heinous crime including that of murder.
16. We have already discussed above in the preceding paragraphs that the law nowhere
provides that such a person should be held to be disqualified as Chief Executive Member. The
law, in fact, is quite different which has been pointed by the learned counsel for the
respondent No. 6, which is in the Rule 17(1)(f), where the only disqualification is where such
a person has been convicted. It is not the petitioners' case that the respondent No.6 has
been convicted.
17. In view of the above discussions, this Public Interest Litigation fails and is dismissed.
18. As regards the expeditious disposal of the cases which are pending against the
respondent No.6, we can only note that there are already directions of the Hon'ble Apex
Court for expeditious disposal of the same. We, however, reiterate and direct the Court below
where the trial is presently going on to expedite the trial in letter and spirit of Section 309 of
Code of Criminal Procedure.
JUDGE CHIEF JUSTICE
Comparing Assistant
