This Case Commentary is written by Prayas Das, a First-Year Law Student of National Law University, Odisha

Court – Supreme Court Of India

Equivalent Citation – 1962 Air 945, 1962 Scr Supl. (2) 380, Air 1962 Supreme Court 945

Date Of Judgment – 22/12/1961

Bench: P,B Gajendragadkar, A.K Sarkar, K.N Wanchoo, K.C. Das Gupta, N. Rajagopala Ayyangar

Petitioner: State Of Orissa

Respondent: Bhupendra Kumar Bose

INTRODUCTION:

In this case, elections were held for the Cuttack Municipality, and 27 persons were declared elected as Councillors. B.K Bose, who was defeated in the elections, filed a writ petition under Article 226 of the Indian Constitution before the Orissa High Court, thus challenging the elections. The High Court nullified the elections and held that the electoral roll prepared had not been by the Orissa Municipality Act, 1950, as the age of qualifications of the voters was published too late, thus curtailing the period of objections and claim from 21 days to 2 days as prescribed by the said act. The Governor of Orissa, hereby promulgated an ordinance validating the elections to the Cuttack Municipality and validating the electoral rolls prepared for the other municipalities, as the State government was of the view that the judgment affected not only the Cuttack Municipality but another Municipality also. Thereafter, B, K Bose filed a petition before the High Court contending that the ordinance promulgated was unconstitutional. The Orissa High Court found that the ordinance was unconstitutional, as it breached Article 14, failed in curing the invalidity, and violated Article 254(1) of the constitution as it violated the central acts falling under the concurrent list. The State and the Councillors appealed and challenged the judgment of the court.

FACTS:

The elections to Cuttack Municipality took place during the period from December 1957 to March 1958 and 27 candidates were elected as Councillors. Manmohan Mishra was elected Chairman and Mahendra Kumar Sahu was elected as Vice-Chairman. The Division Bench of the High Court declared the elections invalid and directed the Collector to hold fresh municipal elections in the Cuttack Municipality by the law. The judgment was pronounced on 11/12/1958. The State Government did not challenge the judgment of the court in the Supreme Court, nor the Councillors but rather came up with an ordinance dated 15/1/1959, which tends to nullify the court’s judgment concerning the Cuttack Municipality elections, thus validating the elections and electoral rolls published for Cuttack and other municipalities. To this, B.K Bose appealed in the High Court under Article 226 of the Indian Constitution for a declaration that the Orissa Municipal Elections Validation Ordinance 1959 is void and inoperative in its operation to the Cuttack Municipality and asked for a permanent injunction restraining the State of Orissa from enforcing the ordinance and restraining the opposite parties to be able to perform as the Councillors to the Cuttack Municipality. The division bench previously in 1958, pronounced the reasons for invalidating the Cuttack Municipality elections, which are as follows.

· The qualifying date for determining the age of qualifications of the voters was released on 10/1/1958 under Section 13 of the Orissa Municipal Act of 1950, but on the other hand, the preliminary electoral rolls were published on 23/12/1957, which technically reduced the period for claims and objections to 2 days from 21 days as prescribed under the Orissa Municipal Elections Rules. The last date for claim and objections was on 12/1/1958. The division bench hereby held that the said breach of procedure materially affected the election rules, by depriving several populaces of their right to vote in the elections.

· A candidate to the elections is given 15 days for canvassing purposes but the notification issued under the Orissa Municipal ruled, curtailed this to 14 days, thus violating the right of a candidate.

Thus, the elections were invalid and the District Magistrate was directed to conduct fresh elections by the law prescribed.

[1]The High Court found that the Ordinance Contravened Article 14 of the Indian Constitution, that it did not successfully cure the invalidity pronounced by the High Court, and that it offended Article 254(1) of the Central Indian Constitution as it was inconsistent with various Central Acts falling under the Concurrent list and thus, it was declared as unconstitutional.

CONTENTIONS RAISED BEFORE THE SUPREME COURT

Subsequently, the State and the Councillors challenged the finding of the High Court before the Supreme Court, to which B.K Bose who was the Respondent put forth two contentions that the appeal had become infructuous as the period of the ordinance expired and the ordinance was invalid as it intended or purported the judgment of the High Court. Thus, the Governor’s promulgation of ordinance stands valid under Article 213 of the Indian Constitution.

JUDGMENT

The Hon’ble Supreme Court of India pronounced a judgment that the ordinance was valid and it successfully cured the invalidity of the electoral rolls and the elections happened to the Cuttack Municipality. The ordinance, thus promulgated did not discriminate against B.K Bose, as did not violate Article 14 of the Constitution. The objective of the ordinance was not only to save the elections of the Cuttack Municipality but also to save other municipalities' elections also, that might get challenged on similar grounds.

CONCLUSION

This case delved deeply into how the power to promulgate ordinance given to the Governor under Article 213 and to the President under Article 123 of the Indian Constitution, can be used to nullify the Constitutional Court Judgment. The misuse of ordinances, as exemplified in this case, highlights a critical issue in governance, while ordinances were created to address any emergency when the house is not in session, its’s misuse and improper use can undermine the democratic principles of the nation. The government must ensure that the ordinance-making power should not be used as a tool to bypass judicial decisions without due legislative scrutiny. In this case, although the ordinance was held valid, the broader implications of such actions called for a more judicious use of ordinance-making powers. It is essential to uphold constitutional provisions and maintain a balance between legislative authority and judicial oversight to prevent the erosion of public trust in democratic processes.

REFERENCES

● Bhupendra Kumar Bose Vs State of Orissa (1961) https://indiankanoon.org/doc/1495774/ accessed on 20th September.

● Bhupendra Kumar Bose Vs State of Orissa (1959) https://indiankanoon.org/doc/1789423/ accessed on 22nd September.

● Gobind Das, 'The State of Orissa Vs Bhupendra Kumar Bose—Orissa Municipal Election Validating Ordinance, 1959' The Indian Journal of law institute https://www.jstor.org/stable/43949687 accessed on 21st September.