Patna High Court strikes down provisions of Bihar Municipal (Amendment) Act for hindering self-governance

The Patna High Court on Friday struck down certain provisions of the Bihar Municipal (Amendment) Act of 2021 on the ground that hinder self-governance sought be achieved through the 74th Constitutional Amendment [Dr Ashish Kumar Sinha & Ors. vs The Union of India]. .A bench of Chief Justice Sanjay Karol and Justice S Kumar held that with respect to laws made for local self-government, four keys words forming the essence of Seventy Fourth Constitutional Amendment must always be respected."With respect to laws made for local self-government, the four key words that form the essence of the Seventy Fourth Constitutional Amendment, as also the Municipal Act, i.e decentralization, devolution of powers, autonomy and accountability must always be respected," the Court stated.The Seventy-Fourth Constitutional Amendment had introduced urban local bodies in the Constitution and provided for setting up three types of municipalities with a view to augment the powers of the local self governing institutions and decentralise and give more power to people..The judgment was passed in a bunch of petitions challenging the March 31, 2021 amendment of Bihar Municipal Act, 2007 through which the State government took over the powers of appointment, selection, posting and transfer of Group C & D employees of Municipal Bodies. Prior to the amendment, the Chief Municipal Officer with the prior approval of an Empowered Standing Committee, would take such decisions..The State of Bihar, through Advocate General Lalit Kishore, had justified the amendment by arguing that it was brought in with a view to ensure free and fair appointments to the posts. Kishore claimed that the posts were being used by employees to continue working in a particular municipal office for a prolonged period, leading to corruption. He underlined that post the amendment, transfers of Group-C employees became possible, which enabled efficient and experienced employees to be available to municipalities.It was also argued on behalf of the State Article 243W of the Constitution, which empowers State to make laws to govern the powers, authority and responsibilities of Municipalities, was merely an enabling provision and posited no restriction upon the power of the State to legislate and take away the power of appointment as has been done under the present amendment. The petitioners on the other hand had contended that the offending provisions are in violation of Article 243W since the said Article empowers the State Legislature to make laws to facilitate self-government and not to defeat it..The Court agreed with the petitioners argument and held that Article 243W being an enabling provision, enables the legislature of a State to endow the municipalities with such powers and authority as may be necessary to function as institutions of self government."The purpose, therefore, of the 74th Amendment of the Constitution of India under which falls Article 243W of the Constitution of India and as a result of which the Bihar Municipal Act, 2007 was enacted was to bring to the local political institutions already existing, autonomy, the power to self govern through devolution of power and independence in regards to certain functions.....Therefore, any law making undertaken by the State with respect to municipalities has to be for the purposes of fostering self government," the Court ruled..The Court observed that with the amendment, power stood centralized and the Empowered Standing Committee, an elected body, was reduced to a mere receptacle, defeating the objective of democratic decentralization. .Further, it observed that the legislation did not foster self-government, but instead furthered the antithesis of devolution, giving the State more power in the everyday functioning of the municipality.Stating that the State government was bound to strike a balance while exercising its powers to maintain autonomy of municipal bodies, the Court held the amendment to be a hindrance in search for such balance."There is no question as to the supervisory power of the State and to the law making authority it possesses. However, in pursuance of the same, it is essential to strike a balance, maintaining the autonomy of the third level of Government. The amendments strike at the heart of the search for this balance," it observed..Regarding autonomy of municipal bodies, the Court acknowledged the State's power to make law governing their general processes with respect to employment but said that the power could not be exercised in a manner that leaves no room for municipalities to function as per their own need and requirement."The control exercised by the Municipal authority in matters concerning its employees is not complete/unbridled or entirely autonomous, however, there is considerable freedom guaranteed by virtue of such authority being a quasi-autonomous body which must be respected in line with horizontal separation of powers under the constitution," the Court added.With respect to the State's contention that it was prompted to bring in the amendment to curb corruption, the Court noted that the records did not show any inquiry being conducted into corruption in municipal bodies and underlined that in case of corruption in municipal bodies, the State is empowered to take action under the parent act..Thereafter, the Court noted that Sections 2 to 5 of the Amendment Act (that amended sections 36, 37, 38, and 41 of the parent Act) gave complete authority to the State government to prescribe method for appointment, selection, posting and transfer of Group C and D employees and held that this was contrary to the Seventy-Fourth Constitutional Amendment. As a result, it struck down the challenged amendments."...the impugned amendments...are contrary to the Seventy Fourth Constitutional Amendment as both the major effects, i.e. the recentralization of power and institution of self-government being weakened as being dependent on the State Government for regulation of its employees, are incompatible with the idea, intent and design of the constitutional amendment and are manifestly arbitrary," the Court observed..[Read Judgment]