Shillong, Mar 10: Amidst the demand for barring non-tribal candidates for the upcoming election to the Garo Hills Autonomous District Council (GHADC), the Meghalaya High Court has today passed an order that would pave the way for non-tribal candidates to contest the polls.
In the order passed today, the High Court quashed and set aside the notification issued by the Executive Committee of GHADC on February 17 that mandated production of scheduled tribe certificate by prospective candidates for the GHADC polls slated to be held on April 10.
While taking up the plea by Enamul Haque who challenged the GHADC notification, Justice Hamarsan Thangkhiew in his order said that amendment rules on such a matter under the Assam and Meghalaya Autonomous District (Constitution of Districts Councils) Rules, 1951 should have been approved by the GHADC EC and passed by the MDCs in the House and assented by the Governor.
“The impugned notification, as noted earlier was notified in pursuance to a resolution of the Executive Committee and under powers purported to be derived under paragraph 2 of the Sixth Schedule, which is now being sought to be implemented in the upcoming elections. In this context, as arguments have been advanced that the same is in exercise of Rule 29 of the Assam and Meghalaya Autonomous Districts (Constitution of District Councils) Rules, 1951, a perusal of Rule 29 would show that 29 (2) quoted earlier, though giving latitude and power to the Executive Committee to take up matters captioned therein, the same is however subject to the reference to the District Council for final approval. The impugned notification, it is noted has been issued at the level of the Executive Committee itself, without the same being placed before the Council, and further, even if Rule 30 is resorted to, Rule 29 (2) (b) does not envisage the making of Regulations or Rules by the Executive Committee but only for proposals to be made,” the order said.
The court also said, “The impugned notification, apart from other considerations discussed above, to have effect in law would also have to pass the rigours of Rule 72, which provides for the manner in which Rules are to be made by the District Council, which compulsorily require the approval of the Governor, before the same becomes law. A perusal of Rule 72, would show that under the Rule making powers of the District Council, the Rules shall be drafted by the Executive Committee and thereafter, be placed before the District Council in session for onward process before the District Council Affairs Department and finally for assent before the Governor. The impugned notification, in the considered view of this Court, would amount to only the first stage being completed i.e., at most to only a proposal which would necessarily also have to be correspondingly accompanied with proposed amendments to Rule 8 and Rule 128 of the Rules of 1951.”
Interestingly, during hearing in the High Court the State government opposed the notification issued by the GHADC.
Advocate General Amit Kumar who appeared for the State government told the court that the notification was issued by the GHADC without complying with “due process of law”.
Kumar submitted that the District Council is vested with powers under Rule 29 (2) (b), to make proposals for making regulations, rules or law as authorised under the provisions of the Sixth Schedule, and the legislative process for the same has been prescribed at Rule 72 which mandates that all Rules made by the District Council under paragraph 2 (7) with regard to matters in 2 (6) of the Sixth Schedule shall be drafted by the Executive Committee and shall be placed before the District Council for consideration.
Rule 72 (2), he said, provides that the Rules confirmed by the District Council, shall be sent to the District Council Affairs Department and all Rules have to be approved by the Governor, before coming into force.
In the instant case, Kumar said, there has been no proposal for amendment of the Rules and the impugned notification has been issued without due process as provided in Rule 72, being followed.
He told the court that changes in the Rules cannot be affected without an amendment being made to Rule 128 of the Assam and Meghalaya Autonomous Districts (Constitution of District Councils) Rules, 1951. “By operation of law and in the absence of legislative sanction, the impugned notification cannot be said to be valid,” Kumar submitted.
