As per the directions of the High Court of Karnataka during the hearing of the case WP 24739-740/2012 on 4th September 2017, we are herewith submitting our objections to the manner of selection of ward committee members:
Violation of the spirit and objects of the 74th Constitutional Amendment: The purpose of the 74th Constitutional Amendment as per the Union Government, in its primer on JNNURM, was to empower Urban Local Bodies (ULBs) with many more powers and functions to operate as independent levels of government. But, it says, “such increase in autonomy also needs to be complemented by appropriate accountability. This accountability needs to be directly to the citizens themselves, rather than to another level of government. Hence, formal mechanisms for such citizen-centric accountability need to be created, along with reforms in urban decentralisation. From the citizens’ perspective, there need to be more opportunities to participate in local governance at many levels: in budgeting, planning, land use and zoning issues, and so on. Creating this opportunity to participate also complements the accountability issue mentioned above”. In order to achieve this, the primer says, ULBs need to “incorporate tools such as transparency and accountability and wider civic participation that would strengthen good urban governance in municipal bodies of the country”.
The area sabhas and ward committees are the means of achieving the above goals. Hence it is essential that the constitution of area sabhas and ward committees and the selection of its members should be citizen-centric and such as to achieve the goals of transparency and accountability in urban governance.
However, rather than facilitating a mechanism for citizens to participate in ward committees, the current procedure allows Councillors themselves to make the nomination of members to the ward committees in a non-transparent manner, defeating the very purpose of setting up the ward committees, which is to make the functioning of the Councillor transparent and accountable. We object to this current procedure as it is against the above spirit, objects and reasons of the 74th CA and fails to ensure good urban governance.
Power to nominate rests with the Commissioner: According to us, the KMC (Amdt.) Act of 2011 puts the onus of selecting the ward committee members on the Commissioner and not the BBMP Council or Councillors as its Section 13H(2)(b) of the KMC (Amdt.) Act of 2011 says that ward committee members shall be “nominated by the Corporation” and Section 64 (1) of the KMC Act on the “Functions of the Commissioner” says clearly that “the executive power for the purpose of carrying out the provisions of this Act …. which imposes any duty or confers any power on the corporation shall vest in the Commissioner”.
Commissioner does not require sanction/approval of Council to nominate ward committee members: The argument has been proposed that the Commissioner has no power to make the nomination of ward committee members as he is required to be first authorised by the Council, viz., ‘the general body of the Corporation’, to do so. We disagree with this argumentation as Section 64 (1) of the KMC Act further says clearly that this executive power of the Commissioner is subject to the approval or sanction of the corporation only “whenever it is in this Act expressly so directed”. Since there is no specific direction under the KMC (Amdt.) Act of 2011 that approval or sanction of the corporation (general body) is required by the Commissioner to nominate members of the ward committee, we submit that the Commissioner himself is authorised, or rather, required to do so, and he is not required to seek the approval or sanction of the Council.
Commissioner cannot delegate his powers to Councillors: Section 66 of the KMC Act says that the Commissioner may delegate his ordinary power, duties and functions to any officer of the Corporation subordinate to him, “subject to the rules made by the State Government”. But he has no power to delegate his ordinary power to Councillors, which he has done through the circular dated 15.01.2016 wherein he asks nodal officers of each ward to get the names of the ward committee members from the Councillors. The Commissioner has erred in illegally delegating his powers to Councilors.
Councillors have no executive powers: As per Section 70 of the KMC Act on “Power of Councillors”, (1) Any Councillor may draw the attention of the proper authority to any neglect in the execution of corporation work, to any waste of corporation property or to the wants of any locality, and may suggest any improvements which he considers desirable and (2) Every Councillor shall have the right to interpellate (sic) on matters connected with the corporation administration subject to the regulations framed in this behalf (italics mine). But nowhere do the KMC Amdt. Act of 2011 or Ward Committee Rules of June 2016 give Councillors executive powers to nominate the ward committee members, or the right to ‘interpellate’ (interpolate) in this matter. Hence, Councillors have been illegally asked to exercise power to nominate ward committee members. As already mentioned above, since the ward committee members are expected to monitor the functioning of the Councillor at ward level, and ensure that he functions in a transparent and accountable manner, it would be counter-productive to make Councillors themselves nominate the members. As per studies done by citizen activists, in 44 out of 83 ward committee lists, the Councillor is a co-signatory along with the nodal officer, proving that he has exercised powers that he does not have (Annexure 1).
Citizens’ applications not considered: As directed by the High Court that only two to three names from the Councillors’ lists may be selected as ward committee members and that the remaining seven to eight names should be selected from citizens’ nominations or applications, about 500 applications were submitted by mostly non-political, concerned citizens to the BBMP Commissioner. But out of the finalised list of 198 ward committees, it is found that just about five names of those who applied have found a place in the list out of 1980 names. This is a violation of the above order of the High Court and the spirit of the 74th CA requiring active citizen participation in governance.
RTI replies reveal Commissioner did not exercise his powers to make nominations: Two RTI applications filed by many ward committee aspirants requested BBMP to furnish: (i) the list of ward committee members suggested by the Councillors and (ii) the list that was finally given approval by the BBMP Commissioner. The standard replies provided by BBMP to these RTI applications, herewith attached (Annexure 2) was that the list submitted by the Councillors was the same as that finally approved and published by the BBMP Commissioner on the website, showing that the BBMP Commissioner had failed to exercise his powers under the KMC (Amdt.) Act of 2011 while nominating the ward committee members and had illegally delegated that power to the Councillors and also failed to follow the above direction of the High Court to consider the applications of citizens and take only two to three names from the list submitted by the Councillors and give the remaining seven to eight positions to citizen applicants.
Nomination of relatives, cronies, etc., amounts to nepotism: It is also observed that the names of many husbands of women Councillors have been included as ward committee members, and these husbands are likely to act as proxies for their wives and become de facto chairmen of the ward committees, defeating the purpose of women’s empowerment. Several relatives of Councillors, political party office-bearers and political party workers are also found to have made it to the list, as per attached Annexure 3. Both these facts reveal how the true purpose of the ward committees, of bringing transparency and accountability in governance at ward level, are being defeated by such nominations. Nomination of close relatives, cronies, etc., violates the basic principles of good governance and amounts to nepotism and favouritism.
Given the above data, the BBMP appears to have used its power to nominate ward committee members in the most arbitrary fashion and against the spirit of the 74th Constitutional Amendment.
Failure to delineate guidelines/procedure adopted for making nominations: The High Court in its order dated 19.07.2017 directed the BBMP Commissioner to submit with an affidavit the selection procedure/guidelines adopted to select ward committee members. In his report and his later affidavit, the BBMP Commissioner has merely cited Section 13-H of the KMC (Amdt.) Act of February 2011 and the KMC (Ward Committee) Rules of June 2016 as the procedures and criteria followed for selection of ward committee members. However, the KMC (Amdt.) Act of 2011 and the Rules of June 2016 merely delineate the composition of the ward committee, viz., that it should consist of 2 SCs/STs, 3 women, 3 members from general category and 2 representatives of registered associations working in the ward. The Report also merely cites Section 25 and 26 of the KMC Act on the qualifications for becoming a Councillor which are also applicable to a ward committee member.
However, Section 25 and 26 of the KMC Act, the KMC (Amdt.) Act of February 2011 and the KMC Ward Committee Rules of June 2016 are silent on a procedure for making the nominations for the various categories of ward committee members: they are silent on whether public advertisements should be placed in newspapers calling for nominations, whether citizens should submit recommendations, whether NGOs/RWAs/civil society organisations should suggest or nominate the names, whether applications should be publicised on a notice board, objections called for to the applications, and who should finally select the names, etc. This is the question asked by the High Court to BBMP in its order of 19.7.2017 which BBMP has utterly failed to answer.
A concerned official of BBMP has informed us that the formation of ward committees in BBMP has been under process for the last one year. It is difficult to imagine why it has taken BBMP more than a year to issue proper guidelines or frame bye-laws for the procedure of nominating members of the ward committee, which is a body mandated under the Constitution. This delay amounts to violation of the Constitution by the BBMP.
We understand that a Govt. Circular No. UDD/339/MNY/2001 dated 21.12.2002(?) was issued providing guidelines to BBMP for constituting the ward committees, based on which a supposed circular with guidelines was issued by the then BMP Commissioner on 1.2.2002. We wonder why the BBMP Commissioner could not ferret out the UDD circular and re-issue the guidelines based on this Govt. circular to clarify the guidelines and enhance citizen participation in ward committees.
The circular of the BBMP Commissioner dated 15.01.2016 detailing instructions to all the zonal officers to submit proposals for setting up of ward committees merely cites the Acts and Rules and provides a checklist to verify the eligibility of the selected members. But the circular merely asks the zonal commissioners to collect the names from all the Councillors of the wards constituting the zone, consolidate them and forward them to the BBMP Council Secretary, without delineating a procedure or guidelines for making the nominations.
SC Judgement on Wednesbury Principle: In this regard, we wish to cite here the following cases in the Supreme Court, (before Justices A.M.Ahmadi, CJ, N.P. Singh and K. Venkataswami, vide Writ Petitions (C) No.691 of 1995, with Nos. 716, 801, and 818 of 1995, 2& 3 of 1996, Delhi Science Forum & Others (Petitioners) Vs. Union of India & another respondent, with transfer cases Nos. 4-6 of 1996, & National Telecom Federation of Telecom Employees & Others (Petitioners) Vs Union of India & Other Respondents, Writ Petitions (C) No 691 of 1995 with Nos. 716, 801, & 818 of 1995, 2& 3 of 1996,decided on February 19, 1996, regarding grant of licences under Section 4(1) of the Telegraph Act, 1885, by the State government to non-government companies.
The above judgement held that the discretion conferred on the Central government under the proviso to grant licence must be exercised reasonably and rationally in public interest and in conformity with the conditions which the Central government should prescribe to safeguard the interests of the public and the nation, so long as rules have not been framed under S.7. It further held that the Wednesbury principle of reasonableness is applicable. Exercise of the power must answer the test of ‘reasonable’ man and satisfy those of Article 14 of the Constitution. The Court reserved its right to interfere on being satisfied about bad faith, irrational, irrelevant or ulterior consideration and non-compliance with prescribed procedure or violation of any Constitutional or statutory provision.
BBMP has violated the above ruling of the Supreme Court by not exercising its power to nominate ward committee members “reasonably and rationally in public interest” and in conformity with the conditions which the BBMP should have prescribed to itself to safeguard the interests of the public, so long as the KMC (Amdt.) Act of 2011 and the Ward Committee Rules were not clear about the procedure and criteria to be followed for the nominations.
BBMP has violated the above Wednesbury principle of reasonableness and failed to satisfy those of Article 14 of the Constitution which says there shall be “Equality before law”, viz., “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. The above manner of nominating ward committee members violates the “Prohibition of discrimination” mandated by Article 14.
This points also to an abdication of responsibility by the BBMP Commissioner in performing his duty to issue guidelines to nominate ward committee members in a fair, transparent and democratic manner, as required by civil service rules and as enjoined upon him by the KMC (Amdt.) Act of 2011 and above SC ruling.
Failure to delineate selection/rejection criteria: The above-mentioned Acts, Rules and circular prescribe qualifications for ward committee members but do not say what the selection criteria and inter se priority should be when there are several applicants who are equally qualified and fulfill all the eligibility criteria for becoming ward committee members.
For instance, if there are 10 or more SC/STs, 10 women and 10 RWAs fulfilling all the eligibility criteria specified in the Acts and Rules, it is not stated what the selection criteria adopted by BBMP were to differentiate between them and select only 2 SC/STs, 3 women and 2 RWAs from among them. This is the question asked by the High Court to BBMP in its order of 19.7.2017 which BBMP has utterly failed to answer.
BBMP did not announce in what format applications had to be submitted and what documents had to be furnished along with the applications of citizens. No citizen applicant was called or met to verify his eligibility or gauge his relative merit when compared with that of those finally selected. BBMP has failed to provide the procedure that was used to verify the eligibility of the citizen applicants and what selection/rejection criteria were used for selecting/rejecting them.
Vague replies to RTI applications asking for selection/rejection criteria: Several citizens who applied for ward committee membership, including the undersigned, also asked for information from the BBMP under the Right to Information Act on the ‘selection/rejection’ criteria followed for nominating ward committee members. The standard reply provided by the BBMP Council Secretary’s office to the above questions is herewith attached (Annexure 4). The reply shows that no application of mind has gone into the replies.
To the Right to Information application to provide the “selection/rejection criteria” used for differentiating between several applicants who have applied for the position of ward committee members, the reply says that “the list of ward committee members is already up on the BBMP website”.
The second request was to provide “List of applicants, their qualifications, years of social service, and the relative merit ranking for selecting them, etc.” in one ward. The reply says that the RTI applicant should apply separately to the ward nodal officer and ask for the information, instead of forwarding the application to the nodal officer holding that information and asking him/her to furnish the details, as required under the RTI Act.
The above replies lead one to logically infer that there were no ‘reasonable and rational’ selection/rejection criteria for judging inter se merit issued or implemented for selecting the ward committee members and the mindless replies are an attempt to obfuscate this fact.
SC Judgement in the ‘Coalgate’ case: We wish to recall that, as spelt out by the Supreme Court in the ‘Coalgate’ case, no discretionary power vested in the government can be applied in an arbitrary manner, without framing guidelines/criteria on the manner of exercising that power. Without going into the details of the above case, but based on the questions posed by the SC to the Union government in above-mentioned case, we wish to ask similar questions on the manner of selecting the ward committee members:
- What were the guidelines framed by the BBMP for selection/rejection from among the equally eligible applicants for ward committee membership?
- What was the process adopted for deciding inter se priority between the applicants?
- Whether the guidelines/criteria contain inbuilt mechanism to ensure that selection does not lead to nepotism or favouritism towards a few?
- Whether the guidelines/criteria were strictly followed and whether by the selection the objectives of setting up the ward committee have been realised?
- What were the reasons, if any, for not following the policy of inter se merit of applicants?
- What steps are proposed to be taken against the selections made in violation of Article 14 – Equality before Law – SC directives regarding adherence to the Wednesbury principle and non-arbitrariness in the use of discretionary power, and the spirit, objects and reasons of the 74th Constitutional Amendment?
The details furnished in the affidavit of the BBMP Commissioner and the replies to the RTI applications reveal that nominations to ward committees have been done in violation of prescribed procedure by the Constitution, the SC and the spirit of the 74th Constitutional Amendment. Paraphrasing the SC judgement in the Coal-gate case and applying it to the manner of selection of ward committee members, we submit the following objections:
- The Action Taken Report and affidavit filed by the BBMP Commissioner in the High Court do not contain any objective criteria for determining the merits of applicants and lack in equitable treatment.
- They are totally cryptic and hardly meet the requirement of constitutional norms to ensure fairness, transparency and non-discrimination.
- No guidelines for determining inter se priority of applicants have been issued. They do not lay down any criteria for evaluating the comparative merits of the applicants.
- No applications were invited through advertisement and thus the exercise of nomination denied level playing field, healthy competition and equitable treatment.
- Except mentioning the categories under which the members have been nominated – such as SC/ST, woman, general, registered association, etc. – there are no other particulars of each nominated member.
- There are no particulars as to whether information was sought from the applicants on their qualifications, experience and eligibility and how the information supplied by the applicants, if any, was verified.
- The particulars of each individual applicant are not furnished and are neither mentioned nor are they discernible.
- The particulars of merit of each individual applicant and in what manner the selected members meet the norms, if any, fixed for inter se priority have not been recorded.
- The comparative assessment or evaluation of the applicants have not been tabulated and their relative ranking furnished.
- There are no minutes of the meetings which took place to show that there was any application of mind by the officers/Councillors to decide the nominations and there are no particulars showing how each application was considered and how norms for consideration for inter se priority for nomination among competing applicants were considered.
- There is nothing to indicate as to why a particular person has been found more meritorious than the other equally eligible applicants. Why the chosen persons have been preferred over the others is not discernible.
- The nominations are apparently subjective, the policy of pick and choose has been adopted. The approach has been ad-hoc and casual.
- The nomination process has failed to adhere to any fair, democratic and transparent system.
- The entire exercise of nomination by the Councillors appears to suffer from the vice of arbitrariness and not following any objective criteria in determining as to who is to be selected or who is not to be selected.
- Common good and public interest have, thus, suffered heavily.
Demands: (a) We demand that the BBMP re-do the ward committees, by considering all the applications filed by eligible citizens and citizens’ organisations, especially the urban poor groups and exclude husbands of lady Councillors, political party workers and office-bearers of political parties, family members and other questionable persons;
(b) We demand that a tabulated list of all applicants with their inter se merits and ranking be given to ensure transparency and fairness in the process of nomination.
(c) We demand that the BBMP ask all ward committee members to declare through an affidavit that they are not husbands, family members, relatives of Councillors or political party members or party office-bearers;
(d) We demand that BBMP publicise that the nominated individuals/organisations meet all the qualification criteria and that they do not suffer from any of the disqualifications for becoming ward committee members.
Suggestions for a procedure for nominations: We are submitting the following suggestions, for consideration for a future procedure for nominating Ward Committee (WC) members and Area Sabha Representatives (ASRs):
- If nomination procedure is adopted for Ward Committee (WC) members / Area Sabha Representatives (ASRs), applications from the eligible persons for nomination as members of the Ward Committee / ASRs may be sought by giving wide publicity in newspapers, and displaying notices at ward offices, etc., giving fifteen days to one month’s time for submission of applications.
- A format may be developed for the application giving following details of the person: Name and address with mobile number; Educational qualification; Ward name and number; Part No. and Serial No. of his/her name on electoral roll of the ward; category under which nomination is sought: SC/ST, woman, general, registered association of RWAs, slum-dwellers or other urban poor groups, such as garment workers, domestic workers, street vendors, pourakarmikas, etc.; youth groups, etc.; involvement in civic issues in the ward; years of social service; successful initiatives undertaken in the ward; reason for wishing to be ward committee member; affidavit on whether any criteria for being Councillor are violated; affidavit on any relationship to Councillor, whether political party office-bearer, active party worker, etc.
- After receipt of applications for nomination, they may be scrutinized by the ward nodal officer for eligibility.
- The list of eligible persons may be displayed on the notice board of the ward office and objections to the names called for from the public.
- The list of eligible applicants and the objections received may be placed before a Selection Committee consisting of distinguished citizens of the city/Ward, experts/academicians on urban governance, etc., to avoid political interference in the selection of ward committee members and to select the most public-spirited, non-political ward committee members from the list.
- The list of members nominated by the selection committee and approved by the Municipal Commissioner may be gazetted.
- fix a deadline in the Rules /byelaws, within which ward committees need to be formed after the formation of the fresh Council and a deadline within which citizens’ applications will be received by Municipal Commissioners.
- We urge the State Government to consider incorporating into the Rules the above-suggested procedure for nomination of Area Sabha Representatives and Ward Committee members through an amendment to the Ward Committee Rules issued on 22.6.2016. Or BBMP needs to consider including the same in guidelines or bye-laws framed for the purpose as per Section 13J of the KMC (Amdt.) Act of 2011.
Hoping that our objections will be given due consideration and our demands and suggestions accepted.