TaxTMI 
TaxTMI 
2004 (1) TMI 732
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....and others had invoked the jurisdiction of this Court under Article 226 of the Constitution of India questioning certain provisions of A.P. Panchayat Raj Act, 1994 and certain Government Orders and Rules by filing W.P. No. 12348/2002. Federation for Empowerment of Local Government by its Presidium Member, Lok Satta by its General Secretary and Dr. Jayaprakash Narayana filed W.P.MP. No. 22300/2003 in W.P. No. 12348/2002 to implead them as Respondents 3 to 5 and in view of the averments made in the affidavit filed in support of the application the said W.P.M.P. No. 22300/2003 is allowed and proposed parties are impleaded as Respondents 3 to 5. The contesting parties had put in lengthy pleadings and also placed ample material before the Court in support of their respective contentions. Likewise, Prasanna, Chairperson, District Level Committee, Zilla Parishad, Nalgonda District filed P. No. 132567 2002 questioning Memo No. 32254/Mdl.II/ 2002-1, dated 18-7-2002. 2. Both the writ petitions were heard at length. The factual matrix as reflected in the respective pleadings of the parties, needs no repetition. Elaborate submissions were made by Sri S. Ramchandra Rao, Senior Counsel repres....
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....rticle 356(1). This will be apparent also from a perusal of the judgment of this Court in Shamsher Singh v. State of Punjab (1974) IILLJ 465 SC . In the decision referred in S.R. Bommai's case (supra) the Apex Court held at Para 107: The federal State is a political convenience intended to reconcile national unity and integrity and power with maintenance of the State's right. The end aim of the essential character of the Indian federalism is to place the nation as a whole under control of a national Government, while the States are allowed to exercise their sovereign power within the legislative and co-extensive executive and administrative sphere. The common interest is shared by the Centre and the local interests are controlled by the States. The distribution of the legislative and executive power within limits and co-ordinate authority of different organs are delineated in the organic law of the land, namely the Constitution itself. The essence of federalism, therefore, is distribution of the force of the State among its co-ordinate bodies. Each is organized and controlled by the Constitution. The division of power between the Union and the State is made in s....
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....nstitution by the ordinary process of federal or State legislation (The Law of Constitution by A.V. Dicey, p.LXXVII). Thus the dominant characteristic of the British Constitution cannot be claimed by a Federal Constitution like ours. In State of M.P. v. Bharath Singh AIR 1967 SC 1170, it was held that the Indian Federal structure is founded on (1) Sovereignty of people with limited Government authority and (2) Distribution of power between three organs of the State -Legislature, Executive and Judicial, each organ having some check direct or indirect on the other. It is laid down by Prof. K.C. Wheare in "Federal Government", 1963 Edition, that the most important point to ascertain whether a Constitution is Federal in character is whether the powers of the Government are divided between co-ordinate independent authority or not. In "Constitutional Law of India" 4th Edition, Silver Jubilee Edition, H.M. Servai, the learned author expressed the opinion that the most important feature of Federal Constitution is the distribution of legislative power. Even A.V. Dicey in his Introduction to the Study of the Law of Constitution, had expressed an opinion that the distribution of limited ex....
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....fore, as observed by Paton, "the distinction between judicial and other powers may be vital to the maintenance of the Constitution itself (A text book of Jurisprudence (1964) page 295). Power is of an encroaching nature, wrote Madison in 'The Federalist'. The encroaching power which the Federalists feared most was the legislative power and that, according to Madison, is the danger of all republics. Alien says that the history of both the United States and France has shown on many occasions that the fear was not unjustified (Alien, Law and Orders, p. 12). In Bansal v. State of Rajasthan [2003] 2 SCR 933, it was held by the Apex Court at Para 15 : It is true that this Court in interpreting the Constitution enjoys a freedom which is not available in interpreting a statute and, therefore, it will be useful at this stage to reproduce what Lord Diplock said in Duort Steels Ltd., v. Sirs (All.ER.at p.542c-d): It endangers continued public confidence in the political impartiality of the judiciary, which is essential to the continuance of the rule of law, if Judges, under the guise of interpretation, provide their own preferred amendments to statutes which exper....
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....the Constitution introduced by 73rd and 74th Amendments respectively deal with the Panchayats and the Municipalities. A careful and close reading of different provisions of these Amendments would definitely go to show that though the intention is to make these Institutions more effective in their functioning, these Local bodies cannot be placed on par with Centre and States relationship vis-a-vis States and Local bodies relationship. Hence the stand that by introduction of 73rd and 74th Amendments, these Local bodies had attained such a Constitutional status so as to attract the concept of Federalism being the third tier apart from Union and States cannot be accepted. 7. The fundamentals of Federalism need not be further gone into, the same being irrelevant for the present purpose. It is no doubt true that there has been a cry relating to decentralization of powers and autonomy for these Institutions. While exercising powers of Judicial Review under Article 226 of the Constitution of India, in view of the parameters and limitations, this Court as Constitutional Court, though can examine the Constitutionality, legality or otherwise of a Legislation - be it a statute, a delegated ....
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....tionality of a provision can be challenged on the ground that it is in contravention of any fundamental right specified in Part III of the Constitution or that it is not within the legislative competence of the Legislature which has passed the enactment or there is contravention of any mandatory provision of the Constitution which imposes limitation upon the powers of Legislature. It is a fundamental and well settled principle that where the Constitutionality of a Legislation or provisions thereof are challenged, it is for such a party to establish the same and always Courts normally do lean in favour of the Constitutionality of a statute unless it is otherwise shown to be unconstitutional. In State of Jammu and Kashmir v. T.N. Khasa (1974) ILLJ 121 SC, it was held that there is always a presumption in favour of the Constitutionality of an Enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the Constitutional principles. 9. The provisions of the Act, G.Os. and Rules are challenged to be unconstitutional on the following grounds: 1. The State Legislature is bound to act in conformity with Article 243G of the Constit....
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....ted 3.12.1996, G.O. Ms. No. 489 PR&RD dated 3.12.1996, G.O. Ms. No. 162 PR&RD dated 4.4.1997,G.O. Ms. No. 229 PR&RD (Accts.I) dated 17.6.97, G.O. Ms. No. 252 PR&RD dated 2.7.1997, G.O. Ms. No. 289 PR&RD dated 1.8.1997, G.O. Ms. No. 27 PR&RD dated 16.1.1998, G.O. Ms. No. No. 28 PR&RD, dated 16.1.1998 and G.O. Ms. No. 29 PR&RD dated 16.1.1998 of the A.P. Panchayat Raj Act, 1994 as illegal and unconstitutional for being in violation of the Seventy Third Constitutional Amendment with particular reference to Articles 243-G, H, I and N and further direct the respondents to take appropriate and immediate steps to discharge their Constitutional duties of giving effect to the same and for other consequential Constitutional measures to conform to the Constitutional requirements and pass such other order or orders as are deemed fit and proper in the circumstances of the case. W.P. No. 13256/2002: For the reasons stated in the accompanying affidavit it is just and necessary that this Hon'ble Court may be pleased to issue a Writ, Order, or direction more particularly in the nature of Writ of Mandamus declaring the action of the respondent calling for recordings in Proceedi....
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....ions may not be of any consequence unless otherwise the petitioners are able to make out a case of their own so as to declare the challenged provisions, Rules and the G.Os., as unconstitutional. The Statement of Objects and Reasons of the Act refer to the 73rd Constitutional Amendment and the reasons which paved the way for introducing the Legislation. Section 276 of the Act dealing with Repeal and Savings had repealed The A.P. Gram Panchayats Act, 1964, The A.P. Mandala Praja Parishads, Zilla Parishads, Zilla Pranalika and Abhivrudhi Sameeksha Mandals Act, 1986, The A.P. Local Bodies Electoral Reforms Act, 1989. 13. Article 243(d) of the Constitution defines 'Panchayat' as "In this Part unless the context otherwise requires 'Panchayat' means an institution (by whatever name called) of self-Government constituted under Article 243B, for rural areas. Article 243B(1) specifies that there shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of this Part. Articles 243C to 243Fdeal with composition of Panchayats, Reservation of seats, Duration of Panchayats etc., Disqualification for members....
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.... power to legislate relating to an entry in Seventh Schedule cannot be said to be in any way altered if otherwise the State Legislature is competent to do so, especially in the light of the language employed in Article 243G. The same view was expressed by National Commission to Review the working of the Constitution. In I.T.C. Limited v. Agricultural Produce Market Committee, [2002] 1 SCR 441, the Apex Court while dealing with the procedure of interpretation of Constitution held that Constitution is deserved to be interpreted in a manner that it does not whittle down powers of the State Legislatures and preserves Federalism and an interpretation having the effect of making a particular entry, subject to any other entry though not so stated in the entry, deserves to be avoided unless that be the possible interpretation and in deciding the question of legislative competence, Constitution is not required to be interpreted with a narrow or pedantic approach. In Special Reference No. 1 of 2002 AIR 2003 SC 87, it was held that the concepts may change more than words themselves and the significance of change of concepts is vital and Constitutional issues are not solved by a mere appeal to....
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.... connection point out to that the attention of the learned Judges who decided Ashok Kumar Gupta [1997] 3 SCR 269 and Jagadish Lal, AIR 1997 SC 2366, was not obviously drawn to a direct case decided by a Constitution Bench in C.A. Rajendran v. Union of India, (1968) IILLJ 407 SC, which arose under Article 16(4). It was clearly laid down by the five-Judge Bench that Article 16(4) was only an enabling provision, that Article 16(4) was not a fundamental right and that it did not impose any Constitutional duty. It only conferred a discretion on the State. The passage in the above case reads as follows: Our conclusion therefore is that Article 16(4) does not confer any right on the petitioner and there is no Constitutional duty imposed on the Government to make a reservation for Scheduled Castes and Scheduled Tribes, either at the initial stage of recruitment or at the stage of promotion. In other words Article 16(4) is an enabling provision and confers a discretionary power on the State to make a reservation of appointments in favour of backward class of citizens which, in its opinion, is not adequately represented in the services of the State. For interpretation of Constitu....
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....gst different bodies, which have to act within their respective spheres marked out by specific legislative entries, or if there are limitations on the legislative authority in the shape of fundamental rights, questions do arise as to whether the Legislature in a particular case has or has not, in respect to the subject-matter of the statute or in the method of enacting it, transgressed the limits of its Constitutional power. Such transgression may be patent, manifest or direct, but it may also be disguised, covert and indirect and it is to this latter class of cases that the expression "colourable legislation" has been applied in certain judicial pronouncements. The idea conveyed by the expression is that although apparently a Legislature in passing a statute purported to act within the limits of its powers, yet in substance and in reality it transgressed these powers, the transgression being veiled by what appears, on proper examination, to be a mere pretence or disguise. ........In other words, it is the substance of the Act that is material and not merely the form or outward appearance, and if the subject-matter in substance is something which is beyond the powers of that Legisl....
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....o be harmoniously construed and hence it cannot be said that Chapter IX will have the overriding effect over the other general powers to legislate conferred on the Parliament and State Legislatures as well. Even if strict interpretation is adopted, absurdity may have to be avoided in construing the different provisions of the Constitution though pedantic approach cannot be followed even if these provisions are interpreted in the background of Constitution being treated always as a living document. Specific provision prevails over general provision (See Harakchand Ratanchand Banthia v. Union of India, [1970] 1 SCR 479, and the decision referred (supra) (South India Corporation Private Limited v. Secretary, Board of Revenue, Trivandrum and Anr.). Where the directive power itself flows from an enabling provision the resultant subordinate legislation cannot be found fault when the principal power itself is derived from the exercise of only a discretionary power and not from an imperative Constitutional mandate. In the decision referred (supra) (J.P. Bansal v. State of Rajasthan), it was held by the Apex Court at Paras 14 and 15 as follows: Where, however, the words were clear,....
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.... that it has no power to legislate. The power to legislate has not been conferred on the Courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the Legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be.......". In India Cement Ltd. v. State of Tamilnadu, it was held by the Apex Court: Certain rules have been evolved in this regard, and it is well settled now that the various entries in the three lists are not powers but fields of legislation. The power to legislate is given by Article 246 and other Articles of the Constitution. See the observations of this Court in Calcutta Gas Co. v. State of West Bengal AIR 1962 SC 1044 . The entries in the three lists of the Seventh Schedule to the Constitution are legislative heads or fields of legislation. These demarcate the area over which appropriate Legislature can operate. It is well settled that widest amplitude should be given to the language of these entries, but some of these entries in different lists or in the same list may overlap a....
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....d of legislation. If the argument of the learned Counsel was sound, then it would be open to this Court to issue a mandamus to the Legislature to exercise its power of legislation under Entry 42, if it failed to do so. Mr. Das, when faced with this question, had to admit that he could not seriously contend that a Legislature could be directed to enact a statute if it did not wish to do so. Failure to make a law under Entry 42 cannot make a law under Entry 36 bad. In my opinion, the decision in the case of 'Julius v. Bishop of Oxford' (1880) 5 AC 214) has no relevancy to the matter before us. In Municipal Council, Palai v. T.J. Joseph [1964] 2 SCR 87, the Apex Court observed: It is undoubtedly true that the Legislature can exercise the power of repeal by implication. But it is an equally well-settled principle of law that there is a presumption against an implied repeal. Upon the assumption that the Legislature enacts laws with a complete knowledge of all existing laws pertaining to the same subject the failure to add a repealing clause indicates that the intent was not to repeal existing legislation. Of course, this presumption will be rebutted if the provisions....
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.... The third question to be considered is whether the new statute purports to replace the old one in its entirety or only partially. Where replacement of an earlier statute is partial, a question like the one which the Court did not choose to answer in the Commissioners of Sewers case (1862) 142 ER 1104 : 31 LJ CP 223 would arise for decision." 19. Part XX deals with Amendment of the Constitution and Article 368 of the Constitution deals with power of Parliament to amend the Constitution and procedure thereof. The theory of implied repeal cannot be presumed (See Municipal Corporation of Delhi v. Shiv Shankar, 1971 CriLJ 680, Union of India v. Venkatesan, 2002 CriLJ 2790 . In Chief Justice, A.P. v. L.V.A. Dikshitulu, [1979] 1 SCR 26 the Apex Court held: Where two alternative constructions are possible the Court must choose the one which will be in accord with the other parts of the statute and ensure its smooth, harmonious working, and eschew the other which leads to absurdity, confusion, or friction, contradiction and conflict between its various provisions, or undermines, or tends to defeat or destroy the basic scheme and purpose of the enactment. These canons of constr....
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....e the Panchayats and Municipalities in respect of levy, collection and appropriation of taxes, duties, fees and tolls as well as for the creation of a fund within the Panchayat and Municipal institutions to regularize and control inflow and outflow of financial resources. The said articles do not serve their purpose since some State Governments appear to be reluctant to share their fiscal powers with the local self-Government institutions. The Commission, therefore, feels that the only way out is to introduce the concept of a separate tax domain for the local bodies. The Commission considered the suggestion to provide a Local List in the Seventh Schedule for giving fiscal autonomy to the local-self Government institutions. However, the Commission feels that it would be too early to consider such a proposal. The Commission, therefore, recommends that the Eleventh and Twelfth Schedules should be restructured in a manner that creates a separate fiscal domain for Panchayats and Municipalities. Accordingly Articles 243H and 243X should be amended making it mandatory for the Legislature of the States to make laws devolving powers to the Panchayats and Municipalities. 21. It is pertine....
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.... play in governance depends on the regime that controls the Government of a State. The Commission, therefore, recommends that Panchayats should be categorically declared to be "institutions of self-Government" and exclusive functions should be assigned to them. For this purpose, Article 243G should be amended to read as follows: Substitution of Article 243G.--For Article 243G, the following Article shall be substituted namely:- 243G. Powers, authority and responsibility of Panchayats: Subject to the provisions of this Constitution, the Legislature of a State shall, by law, vest the Panchayats with such powers and authority as are necessary to enable them to function as institutions of self-Government and such law shall contain provisions for the devolution of powers and responsibilities upon Panchayats at the appropriate level, subject to such conditions as shall be specified therein, with respect to-- (a) preparation of plans for economic development and social justice; (b) the implementation of schemes for economic development and social justice as shall be entrusted the them including those in relation to the matters listed in the Eleventh Sch....
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....our commitment to the emergency of democratic bodies at the grass-root level elected on the basis of equality and justice, truly representative of people and genuinely concerned with their development. Before concluding, I wish to emphasise that this Constitution Amendment Bill is only the beginning and represents our earnestness in this endeavour. Gandhiji had said: Independence must begin at the bottom. Thus every village will be a Republic or Panchayat having full powers. This must be our goal and I seek the cooperation of all sections of the House in achieving it. .......................... .......................... The Government has left the local bodies on the mercy of the State Governments. What is its outcome. The State Governments enacted laws, constituted Municipal Committees, enacted Panchayati Acts but even today the head of the Panchayat or Sarpanch is on the mercy of the Government. If any complaint is there against him, a Sub-divisional Magistrate dismisses an elected Pradhan of a Gram Panchayat. I don't understand what sort of democracy is this." In the Rajya Sabha, on 23rd December, 1992 it was stated: ....
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....difference at all. It is no doubt true that Constitution is a living document and pedantic interpretation of the provisions thereof may have to be avoided. The arms of this Court cannot be stretched too far while exercising the powers under Articles 226 of the Constitution so as to touch such political questions unless it is established that such questions involve clear Constitutional infraction and breach of the imperative provisions thereof. If not, in view of the limitations and parameters in exercising powers under Article 226 of the Constitution, this Court cannot stretch its hands too long so as to engulf such questions on the pretext of judicial activism. This view may be conservative, but this is in consonance with the division of Legislative, Executive and Judicial functions. In Avinder Singh v. State of Punjab, [1979] 1 SCR 845, it was held that the Legislature is responsible and responsive to the people and its representatives, the delegate may not be and that is why excessive delegation and legislative hara kiri have been frowned upon by Constitutional Law. In Jalan Trading Co. v. Mill Mazdoor Sabha, (1966) IILLJ 546 SC, excessive delegation was dealt with. In Tinsukhia....
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....dy to enact or not to enact a law which it may be competent to enact. There can be no doubt that no Court can direct a Legislature to enact a particular law. Similarly, when an executive authority exercises a legislative power by way of subordinate legislation pursuant to the delegated authority of a Legislature, such executive authority cannot be asked to enact a law which he has been empowered to do under the delegated legislative authority. In the decision referred (supra) (Ajit Singh v. State of Punjab ) it was observed by the Apex Court at para 32: Learned Senior Counsel for the reserved candidates, Shri K. Parasaran however contended that Article 16(4) and Article 16(4-A) confer a power coupled with a duty and that it would be permissible to enforce such a duty by issuing a writ of mandamus. Reliance for the purpose was placed upon Comptroller and Auditor General of India, Gian Prakash v. K.S. Jagannathan [1986] 2 SCR 17 ) and also on Julius v. Lord Bishop (1880) 5 AC 214 (HL) which case was followed by this Court in Commr. of Police v. Gordhandas Bhanji [1952] 1 SCR 135 . We are unable to agree with the above contention. As pointed out earlier, the Const....
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....either to provide for reservation or for relaxation is not correct and runs counter to judgments of earlier Constitution Benches and, therefore, these two judgments cannot be said to be laying down the correct law. In A.K. Roy v. Union of India, 1982 CriLJ 340 it was held: We may now take up for consideration the question which was put in the forefront by Dr. Ghatate, namely, that since the Central Government has failed to exercise its power within a reasonable tune, we should issue a mandamus calling upon it to discharge its duty without any further delay. Our decision on this question should not be construed as putting a seal of approval on the delay caused by the Central Government in bringing the provisions of Section 3 of the 44th Amendment Act into force. That Amendment received the assent of the President on 30-4-1979 and more than two and a half years have already gone by without the Central Government issuing a notification for bringing Section 3 of the Act into force. But we find ourselves unable to intervene in a matter of this nature by issuing a mandamus to the Central Government obligating it to bring the provisions of Section 3 into force. The Parliament ....
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....the Central Government to bring that Section into force so far, can be no impediment in the way of the Parliament in enacting a provision in the National Security Act on the lines of that Section. In fact, the Ordinance rightly adopted that Section as a model and it is the Act which has wrongly discarded it. It is for these reasons that we are unable to accept the submission that by issuing a mandamus, the Central Government must be compelled to bring the provisions of Section 3 of the 44th Amendment into force. The question as to the impact of that Section which, though a part of the 44th Amendment Act, is not yet a part of the Constitution, will be considered later when we will take up for examination the argument as regards the reasonableness of the procedure prescribed by the Act. 24. Be that as it may, the excessive official control and minimum participation of elected representatives is made a serious ground of attack. The total non-participation of any of the elected representatives in certain Rules had been specifically pointed out. Panchayat as Institution may have elected representatives and officials as well. It is true that in the policy making, to keep up the democr....
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....istrative power in regard to matters which can more appropriately and efficiently be dealt with at the local level. People can elect their representatives to work their limited democracies in their limited spheres. 'An overview of local self-Government may set the perspective. The statutory pattern of municipal Government is substantially the same all over the country. The relevant legislation fabricates these local bodies, invests them with corporate personality, breathes life into them, charges them with welfare functions, some obligatory, some optional, and regulates their composition through elected representatives. It provides for their finances by fees and taxes and heavily controls their self-Government status through a department of the State Government in various ways, including direction and correction, sanction and supersession. Consequentially the law clothes the State Government with considerable powers over almost every aspect of municipal working. 'Local self-Government, realistically speaking, is a simulacrum of Article 40 and democratically speaking a half-hearted euphemism; for in substance, these elected species are talking phantoms with....
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....he elected bodies. A careful scrutiny of the statutory provisions and rules under challenge go to show that only a balance had been maintained to have proper checks and limited control to have better governance and better functioning of these bodies. As observed supra, the adequacies or inadequacies in the working up of a system cannot be the province or domain of this Court while exercising powers under Article 226 of the Constitution. Hence on that ground these provisions cannot be held to be either unconstitutional or ultra vires. 26. The concept of Basic structure and Federalism cannot be stretched too far so as to include these Panchayat Raj Institutions also as part of Federal concept in distribution of powers or allocation of powers. A directive in the form envisaged by Article 243G cannot be equated with an enforceable legal right flowing from a Constitutional mandate. Autonomy to these Institutions is only limited autonomy, be it fiscal or otherwise, and the Constitutional directive envisaged under Article 243G has to be interpreted as only a discretionary directive and nothing more. 27. Article 40 of the Constitution no doubt contemplates the State taking steps to o....
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....specifies that the executive authority shall be subordinate to the Gram Panchayat. Section 31 of the Act deals with Functions of the Executive Authority and Sub-section (2) specifies: The Executive Officer shall ordinarily attend to the meetings of the Gram Panchayat or of any committee thereof and shall be entitled to take part in the discussions thereat, but he shall not be entitled to vote or to move any resolution. By Act 22 of 2002, the proviso to Sub-section (1) of Section 31 was substituted, which reads: Provided that where the Sarpanch fails to give his approval for convening the meeting so as to hold a meeting within the period of ninety days aforesaid, the Executive Officer or as the case may be the Village Development Officer shall himself convene the meeting in the manner prescribed. Section 32 of the Act deals with Functions of the executive authority and Section 32(c) of the Act says: The executive authority shall exercise all the powers and perform all the functions specifically conferred or imposed on the executive authority by or under this Act and subject to all restrictions and conditions imposed by or under this Act, exercise the....
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....y the house-tax referred to in Clause (a) of Sub-section (1) by Section 60 at such rates and with effect from such date not being earlier than the first day of the year immediately following that in which the order is published, as may be specified in the order. Such direction may be issued in respect of all buildings in a Gram Panchayat or in respect of only buildings belonging to the undertakings owned or controlled by the State Government or Central Government and the buildings belonging to the State Government as may be specified therein. (2) When an order under Sub-section (1) has been published, the provisions of this Act relating to house-tax shall apply as if the Gram Panchayat had, on the date of publication of such order, by resolution determined to levy the tax at the rate and with effect from the date specified in the order, and as if no other resolution of the Gram Panchayat under Section 60 determining the rate at which and the date from which the house-tax shall be levied, had taken effect. (3) A Gram Panchayat shall not alter the rate at which the house tax is levied in pursuance of an order under Sub-section (1) or abolish such tax except....
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..... Section 167(1), (4) and (7) of the Act read: Section 167(1): The Mandal Parishad Development Officer shall be the Chief Executive Officer of the Mandal Parishad. He shall be responsible for implementing the resolutions of the Mandal Parishad and shall also exercise such powers and perform such functions as may be entrusted to him by the Government. He shall also exercise such powers of supervision over the Gram Panchayats in the Mandal as may be prescribed. Section 167(4): Subject to the provisions of Section 168 the staff borne on the establishment of the Mandal Parishad and the staff working in institutions and schemes transferred by the Government or the Head of the Department of Government to the Mandal Parishad shall be under the administrative control and supervision of the Mandal Parishad Development Officer. Section 167(7): The Government shall have power to make rules to regulate the classification and methods of recruitment conditions of services, pay and allowances and disciplinary conduct of the Mandal Parishad Development Officer. Sub-section (1) of Section 167 of the Act specifies that he shall also exercise such powers of supervisio....
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....s held within the said period of ninety days or within thirty days following such period he shall with effect from the date of expiration of thirty days aforesaid cease to be the Chairman or as the case may be cease to exercise the powers and perform the functions of the Chairman, unless such cessations has otherwise occurred before that date, and for a period of one year from that date he shall not be eligible to be elected as Chairman or to exercise the powers and perform the functions of the Chairman: Provided that in reckoning any such period of ninety days or the period of thirty days following such period as the case may be referred to above, any public holiday shall be excluded. Sub-section (7) of Section 193 of the Act specifies: Where the District Collector is satisfied that the Chairman or the person for the time being exercising the powers and performing the functions of the Chairman has ex facie ceased to be the Chairman or as the case may be, ceased to exercise the powers and functions of the Chairman under Sub-section (6) he shall forthwith intimate that fact by registered post to the Chairman or such person. Article 243F(1)(b) of the Constitut....
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....deals with A.P. Gram Panchayats (Constitution of Beneficiary Committees and Functional Committees) Rules 1997. These Rules are referable to Section 40 of the Act and Section 40 of the Act had not been challenged. G.O. Ms. No. 174, dated 4-6-2003 deals with Functional Committees and these are not Rules, but G.O. Ms. No. 174 refers to G.O. Ms. No. 304, 25, 107, 248, 249, dated 5-10-2001, 21-1-2002, 26-3-2002, 29-6-2002 and 29-6-2002. G.O. Ms. No. 472, dated 28-12-2002, published in R.S. to Part VII (Ext) A.P. Gazette, dated 6-1-2003 had made amendments to G.O. Ms. No. 289. In view of this position, this aspect is only an academic question. 30. Section 43 of the Act deals with Administration report. Likewise, Section 253 of the Act also deals with the same. G.O. Ms. No. 27, PR&RD (Mandal-1) Department, dated 16-1-1998 deals with A.P. Gram Panchayat (Administration Report) Rules, 1994. Likewise, G.O.Ms. No. 28 and G.O. Ms. No. 29 are the Rules - A.P. Mandal Parishads (Administration Report) Rules 1994 and the A.P. Zilla Parishad (Administration Report) Rules 1994 respectively. Administration report per se does not confer any power. In Forum for a Better Hyderabad v. Government of An....
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....n District Collector was pointed out to be the ground of attack. This relates to the working of the system and cannot be said to be beyond the scope of the present Act or the Rule making power thereunder. In Balakotaiah v. Union of India, [1958] 1 SCR 1052, the principle relating to validity of Rules where they were challenged as ultra vires had been discussed by the Apex Court. Likewise, G.O. Ms. No. 64, PR&RD&R (PTS:III) Department, dated 5-2-1996, Rules relating to Levy of Tax on Agricultural Land for specific purpose, framed in exercise of powers under Section 268 read with Section 60(3)(ii) of the Act also had been challenged. The role of District Collector was pointed out. This cannot be a ground of attack at all, the object being to maintain uniformity of tax structure. 32. Certain submissions also were made on the ground of repugnancy. The impugned provisions cannot be held to be invalid on the ground of repugnancy since the question of repugnancy may not be attracted to the present situation in the light of the views expressed supra about Part IX of the Constitution. To cite a few judicial pronouncements on the question of repugnancy : Karunanidhi v. Union of India, 197....
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....epresentatives should have a say in the policy making subject to the checks and balances within the limits and parameters of limited autonomy. The statement of objects and reasons of the Act do reveal that the legislation had been thought of only to further the intent of 73rd Constitutional Amendment. Submissions relating to comparative legislation, provisions of the State Legislations on this subject in other States like Karnataka, Kerala, West Bengal etc., may not be of much help unless it is shown that the challenged provisions are otherwise unconstitutional by virtue of Constitutional prohibition or imperative directives. An attempt was made to show that on a comparative study of the present Act and corresponding provisions of the repealed Act, no further powers had been conferred on these local bodies and this is definitely not in conformity with 73rd Constitutional Amendment. Inasmuch as conferment of powers being left to the domain of State Legislature by virtue of Article 243G of the Constitution, this ground of attack may not be available to the petitioners since it does not alter the situation in any way. Even in Visaka v. State of Rajasthan, AIR 1997 SC 3011, the Apex Co....
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....002, was relied upon to explain the words "think necessary" or "consider necessary" and the concept of discretion. 35. W.P. No. 13256/2002 was directed to be heard along with W.P. No. 12348/2002 by one of us (Goda Raghuram, J). Memo No. 32254/Mdl.II/2002-1, dated 18-7-2002 is questioned in the said writ petition. Section 195(5) of the Act reads: The Government may from time to time, by order give such directions to any Parishad or any officer, authority or person thereof, as may appear to them to be necessary for the purpose of giving effect to the provisions of this section; and the Zilla Parishad, Officer, authority or person shall comply with all such directions. Rules 6 and 9 of G.O.Ms. No,45, Panchayat Raj and Rural Development (Estt. VI) Department, dated 5-2-2000 read: Rule 6: There shall be the District Level Committee headed by the Chairperson, Zilla Parishad with the Chief Executive Officer/ Deputy Chief Executive Officer as Member in Open Session, shall be the authority competent to consider the transfer all categories of Panchayat Raj Employees in respect of Zilla Parishads and Mandal Parishads except those mentioned in paras 2 and 3 above. Th....
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..... (xiv) Suitable Annual Evaluation Reports shall be devised to evaluate the work and performance of each, officer in his Mandal/Division by taking into account the targets and achievements in key performance areas as per the performance evaluation sheet in Annexure enclosed to this order. (xv) To effect transfers through Counseling, a standard request application shall be devised separately. The officers who seek request transfer shall submit the same. (xvi) The officer who attend the Counselling shall be called in as per their service seniority and their place of request shall be given preference to their transfer, keeping in view his performance evaluation report and other available material. (xvii) When an employee reports back to duty after availing leave, they shall, be posted back to same place, as far as possible. 36. The impugned order is questioned on the ground of arbitrariness and being violative of Article 14 of the Constitution. One of us (Goda Raghuram., J) made the aforesaid direction in view of the fact that similar questions regarding the parameters and extent of the powers of Zilla Parishads qua the provisions of the Act and ....
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....een referred to, and in para 12 of the counter-affidavit it was stated: In view of the facts submitted by the Commissioner, the Government issued the following orders vide G.O. Ms. No. 267, PR&RD (Mdl.II) Department, dated 12-7-2002: (a) In respect of the Ministerial staff working under the control of Zilla Parishads and District Panchayat Officers, upto Superintendent level, the concerned competent authority is permitted to effect the transfers. (b) In respect of other posts like Mandal Parishad Development Officer, Extension Officer (PR&RD), Executive Officer, (Gram Panchayats) now designated as Panchayat Secretary and Divisional Panchayat Officer a committee consisting of Chairperson, Zilla Parishad, the District Collector and the Chief Executive Officer of concerned Zilla Parishad will effect the transfers within the District. (c) In respect of Chief Executive Officer and Deputy Chief Executive Officer, District Panchayat Officer, the proposals shall come to the Government. In respect of inter-district transfers, the competent authority will effect the transfers. (d) All the transfers shall be strictly as per the guidelines issued in....
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.... the nature and meaning of the underlying principles and of the theories of interpretation applicable to issues of constitutional construction is not merely, in such cases, of academic interest. It is only after the underlying principles have been examined and delineated may a considered response to the questions we are required to answer, emerge. 42. I have had the benefit of perusing the draft judgment prepared by my learned brother P.S. Narayana, J. He has analysed the complex legal issues, the numerous provisions of the statute, the statutory rules and administrative instructions and the voluminous material that has been placed for our consideration by the parties to the lis, with his usual incisive clarity, indefatigable industry and singular commitment to the judicial role. He has concluded that "the directives envisaged by Article 243G are discretionary in nature"; Article 243G and the Eleventh Schedule of the Constitution do not condition the legislative power of the State under Article 246; the wholesale attack of different provisions of the Act cannot be sustained; "... in the policy making, to keep up the democratic spirit, the elected representative must have a major....
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....he Article 243G, is the conclusion of my learned Brother. 43. With utmost respect I am unable to persuade myself to concur with the analysis and conclusions. I therefore set out my views on the issues posed. 44. One opinion, in particular on constitutional issues, is often advised, is a virtue. There are dangers in curial singularity. "Then the statements in it have tended to be treated as definitions and it is not the function of a Court to frame definitions. Some latitude should be left for future developments. The true ratio of a decision generally appears more clearly from a comparison of two or more statements in different words which are intended to supplement each other." Lord Reid in Gallie v. Lee (1970) 3 WLR 1087. Our Constitution makes the judicature the ultimate testing authority, the guardian of the Constitution, insofar as ordinary law making is concerned and post Kesavananda even insofar as constitutional amendments are concerned. As interpretation of the provisions of Part-IX of the Constitution is presented for our consideration, I consider it a duty to record my distinct position, on the matter. 45. I acknowledge with gratitude the immense contribution an....
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....al mandate in the area of devolution of authority, powers and responsibilities to the Panchayat Bodies; there is no meaningful and effective devolution of administrative and financial powers to the Panchayat bodies under the State Legislation; areas where devolution has been facially provided, has been in substance and reality, to the functionaries and agents appointed by the State over whom the elected representatives have no control; the elected representatives are vouchsafed no discretion or control either in evolving local policy choices, prioritizing developmental areas, executing the policy, initiating the budget or even in implementing the local works. In substantial and critical areas of predominantly local interests and concerns, it is the agents of the State, be they Nodal Officers, Executive Authorities of Gram Panchayats, Mandal Parishad Development Officers, Chief Executive Authorities of Zilla Parishads, the District Collector or the Commissioner of the Panchayat Raj, and like agents of the State who have been invested determinative decision making authority and responsibility to the exclusion of the elected representatives. It is further the petitioners' case tha....
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....ty is to be endowed on the Panchayats to enable them to function as institutions of self-Government is for the Legislature of the State to decide and not for the Courts. (v) The XI Schedule of the Constitution does not per se confer powers of legislation though it enumerates the fields of legislation. In view of the provisions of VII Schedule read with Article 246 of the Constitution, the State Legislature is empowered to make laws without conferring the powers enumerated in the XI Schedule of the Constitution, exclusively on the Panchayats. The 73rd Amendment to the Constitution does not eviscerate the legislative field of the State in respect of the matters specified in the XI Schedule of the Constitution. The discretion of the State Legislature to enact a law in relation to any of the Entries in List II or III of the VII Schedule of the Constitution, including in respect of matters enumerated in the XI Schedule of the Constitution, is not affected by the enabling provisions of Article 243G. The discretion of the Legislature whether to devolve powers, authority and responsibility to the Panchayats, to what extent and at what level is plenary and un-instructed by any prov....
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....f the Sarpanch and individual members, emergency powers of the Sarpanch and of the Mandal President and Vice-President and individual members, of the Standing Committee of the Zilla Parishads and the Chairman and Vice-Chairman of the Zilla Parishads. The appointed officials - the Executive Officer of the Gram Panchayat, the Mandal Parishad Development Officer and the Chief Executive Officer of the Zilla Parishad are subordinate to the Gram Panchayat, Mandal Parishad, Zilla Parishad respectively. These officers also have been conferred special powers and functions. No legitimate claim can be made that more powers and functions be conferred on elected representatives as the discretion of the State Legislature in this regard is absolute. (xi) The officials of the Panchayat Raj Institutions work under the control of the institutions and form part of the institutional set-up. Conferral of power on such officials is equally devolution of powers on the Panchayat Raj Institutions. (xii) The Panchayat Raj Institutions are distinct from their elected representatives. Powers have been devolved on the Panchayat Raj Institutions. Powers need not be conferred only on elected bo....
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....inate bodies having some measure of independence with others. [In Re. Article 143 of the Constitution of India AIR 1965 SC 745, State of M.P. v. Bharath Singh, AIR 1967 SC 1170 , S.R. Bommai v. Union of India, [1994] 2 SCR 644, "Federal Government" by Professor K.C. Wheare; "An Introduction to the Study of the Law of the Constitution" by A.V. Dicey and the "Constitutional Law of India" by H.M. Servai,] As no legislative or judicial powers are conferred on the Panchayat Raj Institutions and the extent of executive power to be conferred on them is left to the discretion of the State Legislature, Part IX of the Constitution cannot be said to have elevated Panchayats to the status of a third tier in the federal structure under the Indian Constitution. (b) The institution of the Panchayat is distinct from its elected representatives. Under the provisions of the Act, every Gram Panchayat, Mandal Parishad and Zilla Parishad are bodies corporate and, therefore, distinct entities. Endowment of powers and authority and devolution of powers and responsibilities upon the institution constitutes compliance with the requirements postulated by the provisions of Article 243G of the Consti....
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.... a construction which renders any of these provisions inoperative should be avoided [Anantha Krishnan v. State of Madras, AIR 1952 Mad 395 (DB), M.S. Sharma v. Sri Krishna Sinha, AIR 1959 SC 395, Harakchand v. Union of India, [1970] 1 SCR 479, Calcutta Gas Company (Proprietary) Ltd., v. State of West Bengal, AIR 1962 SC 1044, and Venkataramana Devaru v. State of Mysore, [1958] 1 SCR 895]. The provisions of Part IX read with the XI Schedule of the Constitution must be interpreted as an instrument of 'constitutional guidance' for making laws devolving powers and responsibilities regarding implementation of schemes for economic development and social justice, which may be entrusted to the Panchayats. For alike reasons, the provisions of Article 243H of the Constitution are also enabling provisions. Even the National Commission to Review the Working of the Constitution has concluded that fiscal powers have not been specifically earmarked for the Panchayat Raj Institutions and has recommended that the XI Schedule of the Constitution be re-structured in a manner that creates a separate fiscal domain for Panchayats and that Article 243H of the Constitution should be amended making....
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....tate of A.P. to enable them to function as institutions of self-governance. The Government of India in the Ministry of Rural Development has the mandate to implement the various provisions of the Constitution (73rd Amendment) Act, 1992. This Ministry have been requesting the Ministries/Departments of the Central Government as well as State Governments to involve Panchayat Raj Institutions in the implementation of the schemes of the Central and the State Governments, from time to time. (c) Amongst the main features of the Constitution (73rd Amendment) Act, 1992 is included the devolution of powers and responsibilities upon Panchayats in respect of the 29 subjects listed in Schedule-XI to enable them to function as institutions of self-governance. (d) The provisions of Article 243G of the Constitution require the State Government to devolve funds, functions and functionaries to Panchayat Raj Institutions in respect of the 29 subjects enumerated in Schedule-XI. (e) State Governments including the Government of A.P. have been advised to minimize the control of the Government over the Panchayats. (f) All the centrally sponsored schemes are not being i....
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.... democratic units of self-governance." (d) State control of local bodies is required, inter alia, to achieve a given level of performance by local Government units; to assure the best administrative arrangement in the operation of local Government units, both internally and in relation to other institutions; to attain maximum complimentarily in the management of local and national development programmes; to protect citizens from abuses of administrative authority at local level; and to achieve the goals of national integration. (e) In the absence of any instruction in the Constitution it is impermissible for the Court to define the contours of the powers and authority that may be necessary for the Panchayats to function as institutions of self-governance. Sufficiency, adequacy or otherwise of such power and authority is advisedly left to the State Legislature. (f) There are no judicially discernable and manageable standards to control and guide discretion of the State. The Courts should not therefore set parameters of the powers and authority necessary to enable Panchayats to function as institutions of self-governance. (g) The Union has been ins....
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....rt IX of the Constitution. (h) The provisions of the 1994 Act do not effectuate but subvert the Constitutional purposes underlying Part IX of the Constitution. 52. Sri S. Niranjan Reddy, learned Counsel appearing for the interveners has supplemented the arguments urged on behalf of the writ petitioners. He has placed before this Court for its perusal, a report of the Lok Satta Committee on empowerment of Local Government. This report points out serious flaws and shortcomings in the process of decentralization and devolution of powers to Panchayat Raj Institutions in the State in the area of endowment of functions, finances and functionaries. The report also emphasizes that the impugned enactment instead of enabling accountability of the elected representatives of the local bodies to those who elected them, entrenches accountability eventually to the State Government and its enforcement agencies. This process has negated the fundamental postulate of good governance which requires that those who exercise power are accountable to those from whom they derive such power. Such accountability is a condition of democracy. 53. On behalf of the interveners it is urged that the....
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.... Institutions. (6) The Indian Constitution is quasi federal incorporating federal features with a strong centrist bias. (7) As no legislative and judicial powers are conferred on Panchayat Raj Institutions under the provisions of Part IX, the institutions cannot be construed as constituting a 3rd tier in the federal structure. (8) While the provisions of the State Act if found in direct and patent contravention of any provision of Part IX may be struck down as ultra vires, no mandamus can issue to direct the Legislature to enact a law. The Court may draw the attention of the Legislature to certain deficiencies and omissions or draw backs in the legislation but cannot command a coequal branch of the State to legislate. The general constitutional architecture of devolution of Legislative powers : 55. Article 246 of the Constitution sets out the subject-matter of laws that could be made by the Parliament or the Legislatures of the State. articles 1 - 3 of Article 246 deal with the subjects and fields of legislation enumerated in the Union List, the Concurrent List and the State List, respectively. Article 246(3) enacts that the Legislature of any State....
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....poses exhorted in Article 40. The statement of objects and reasons accompanying the Seventy-Third Constitution (Amendment) Bill set out the purposes underlying the presentation of the bill for consideration of the Parliament as the constituent body. The "statement of objects and reasons" reads as under:- Statement of Objects and Reasons Though the Panchayat Raj Institutions have been in existence for a long time, it has been observed that these institutions have not been able to acquire the status and dignity of viable and responsive people's bodies due to a number of reasons including absence of regular elections prolonged supersessions, insufficient representation of weaker sections like Scheduled Castes, Scheduled Tribes and women, inadequate devolution of powers and lack of financial resources. 2. Article 40 of the Constitution which enshrines one of the Directive Principles of State Policy lays down that the State shall take steps to organize Village Panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-Government. In the light of the experience in the last 40 years and in view of....
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....nd permissible meaning of the provisions of Articles 243G and 243-H in Part-IX of the Constitution, a complex collage of historical and legislative facts may have to be considered by the Court, however briefly, including the genesis and evolution of the Gram Panchayat Institutions as part of the Social and cultural traditions in territories that now comprise our Nation, developments that have occurred over time including in the post Independence era and the constitutional and legislative dynamics that have since occurred, to ascertain the purposes and compulsions underlying the enactment of the 73rd Constitutional Amendment and the purposes which the amendment seeks to achieve and by the language employed therein. A brief outline of the Panchayat system in India : 60. Many historians and political scientists have authored works setting out historical accounts as to local Governments in ancient, medieval and modern India, including renowned authors such as R.K. Mookerji (Local Government in Ancient India); M. Venkatarangaiya and M. Pattabhiram (Local Government in India); AC Majumdar (Corporate life in Ancient India); Romila Thapar (The History of India); M.A. Muttalib (The Th....
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.... authority what-so-ever. 61. In respect of local self-Government, as it developed in India, however, we shall find that the Indian institutions are practically sui generis representing a type, which may be sharply distinguished from the type represented by the corresponding institutions in modern polity. The fundamental difference is that, while, in the latter case, the state as a fully developed and completely constituted body, consciously creates autonomous centers within itself by devolution and delimitation of its own functions, in the former the communal institutions, guilds, and local bodies have an independent origin and growth out of fluid and inchoate conditions of tribal life and organization. When the state comes to supervene or be superimposed upon these, it has to treat with them more or less on terms of equality and recognize their pre-existing rights by conventions and agreements, which operate as charters regulating their mutual relations. Thus, the varied interests of the communal life, such as administrative, judicial, civic, commercial, or industrial, are assured by the voluntary co-operation of independent and integral units of a common body politic." 62. ....
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.... Pradesh Panchayat Samithis and Zilla Parishads Act, 1959 was then enacted whereunder a Panchayat Samithi was constituted for each Block and a Zilla Parishad for each district. Thereafter, the pre-existing District Boards were abolished resulting in a three-tier system of Panchayat Raj. In 1983, with a view to bring the administration closer to the people, the Government constituted Revenue Mandals in place of Revenue Taluks. The Andhra Pradesh Mandal Praja Parishads, Zilla Praja Parishads, Zilla Pranalika Abhivrudhi Mandals Act, 1986 (the 1986 Act) ushered in a four tier system. These statutory developments, however, did not result in devolution of any independent powers and the Panchayats continued to be relegated to the position of being local self-Governments only in name. The enacting history of the 73rd Constitution Amendment: 66. It is in the above scenario and in recognition of the stultification of the local bodies - post-independence, by successive State Governments that the Constitution 73rd Amendment was enacted, incorporating Part-IX in the Constitution. 67. Prior to the Constitution (73rd Amendment) Act, 1992, which came into force with effect from 1-6-1993, ....
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....for the rural areas: (e) "Panchayat area" means the territorial area of a Panchayat; (f) "Population" means the population as ascertained at the last preceding census of which the relevant figures have been published; (g) "village" means a village specified by the Governor by public notification to be a village for the purposes of this Part and includes a group of villages so specified. ARTICLE 243A Gram Sabha A Gram Sabha may exercise such powers and perform such functions at the village level as the Legislature of a State may, by law, provide. ARTICLE 243B Constitution of Panchayats (1) There shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of this Part. (2) Notwithstanding anything in Clause (1), Panchayats at the intermediate level may not be constituted in a State having a population not exceeding twenty lakhs. ARTICLE 243C Composition of Panchayats (1) Subject to the provisions of this Part, the Legislature of a State may by law, make provisions with respect to the composition of Panchayats : Provi....
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....y Panchayat and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Panchayat as the population of the Scheduled Castes in that Panchayat area or of the Scheduled Tribes in that Panchayat area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Panchayat. (2) Not less than one-third of the total number of seats reserved under Clause (1) shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes. (3) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Panchayat. (4) The offices of the Chairperson in the Panchayats at the village or any other level shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislature of a State may, bylaw, provi....
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....d Panchayat would have continued under Clause (1) had it not been so dissolved. ARTICLE 243F Disqualifications for membership (1) A person shall be disqualified for being chosen as, and for being, a member of a Panchayat-- (a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned: Provided that no person shall be disqualified on the ground that he is less than twenty five years of age, if he has attained the age of twenty-one years; (b) if he is so disqualified by or under any law made by the Legislature of the State. (2) If any question arises as to whether a member of a Panchayat has become subject to any of the disqualifications mentioned in Clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide. ARTICLE 243G Powers, authority and responsibilities of Panchayats Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow the Panchayats with such powers and authority as may be necessary to enable....
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....osition of the Panchayats; (c) any other matter referred to the Finance Commission by the Governor in the interests of sound finance of the Panchayats. (2) The Legislature of a State may, by law, provide for the composition of the Commission, the qualifications which shall be requisite for appointment as members thereof and the manner in which they shall be selected. (3) The Commission shall determine their procedure and shall have such powers in the performance of their functions as the Legislature of the State may, by law, confer on them. (4) The Governor shall cause every recommendation made by the Commission under this Article together with an explanatory memorandum as to the action taken thereon to be laid before the Legislature of the State. ARTICLE 243J Audit of accounts of Panchayats The Legislature of a State may, by law, make provisions with respect to the maintenance of accounts by the Panchayats and the auditing of such accounts. ARTICLE 243K Elections of the Panchayats The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panc....
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....ats at the district level shall apply to the Hill areas of the District of Darjeeling in the State of West Bengal for which Darjeeling Gorkha Hill Council exists under any law for the time being in force; (b) shall be construed to affect the functions and powers of the Darjeeling Gorkha Hill Council constituted under such law. (3A) Nothing in Article 243D, relating to reservation of seats for the Scheduled Castes, shall apply to the State of Arunachal Pradesh. (4) Notwithstanding anything in this Constitution-- (a) the Legislature of a State referred to in Sub-clause (a) of Clause (2) may, by law, extend this Part to that State, except the areas, if any, referred to in Clause (1), if the Legislative Assembly of that State passes a resolution to that effect by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting; (b) Parliament may, by law, extend the provisions of this Part to the Scheduled Areas and the Tribal Areas referred to in Clause (1) subject to such exceptions and modifications as may be specified in such law, and no such law shall be deeme....
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....ats for the Scheduled Castes, the Scheduled Tribes and for women belonging to these categories and for women not belonging to the scheduled categories, including the principles by which the extent of reservations is to be arrived at, spelt out (A. 243D). 6. The tenure of the Panchayats substantially guaranteed against legislative and executive pleasure (A. 243E). 7. Constitution of a Finance Commission to review the financial position of Panchayats within a defined time frame mandated (A. 243I) 8. Integrity of the electoral process for elections to the local self-Governments ensured by the creation of a State Election Commission with protected status to ensure independence and effective functioning (Art. 243K). 9. Bar to judicial interference in electoral matters (within well defined limits) incorporated, to ensure non-stultification or diminution of the representative governance mechanism of Panchayats (A. 243O). 69. The petitioners contend that the provisions of the Constitution (73rd Amendment) Act exemplify a Constitutional signal that the Panchayats function as vibrant institutions of local self-Government and not mere administrative arra....
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....menable to judicial review. Similarly, contends the State, the provisions of Article 243H are in the nature of enabling provisions empowering the State Legislature to, by law, authorize the Panchayats to levy, collect and appropriate taxes including the power to prescribe the procedure and limits within which the Panchayats could be empowered to levy, collect and appropriate taxes. Since the language of Articles 243G and 243H of the Constitution is couched in enabling phraseology, no mandamus could issue treating these constitutional provisions as incorporating a linear command obligating specific conduct by the State Legislature, is the meat of the State's stand. 72. Before assaying on the exercise of identifying and elucidating the meaning of the provisions of Part-IX of the Constitution, an exercise which needs be avoided, if a merely an academic exercise, it is appropriate to analyze the structure and the provisions of the 1994 Act to ascertain whether the articulated grievance of the petitioners, that the provisions of the 1994 Act have not only failed to effectuate the purposes of the provisions of the Constitution, but have, subverted the constitutional intent, struct....
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....s conferred on the Sarpanch under Section 33 are to be exercised in consultation with the Executive Authority. 79. Sub-section (4) of Section 30 enacts that an Executive Authority shall be subordinate to the Gram Panchayat. He is, however, under the Section appointed by the Commissioner. He is empowered (Section 31) to convene the meeting of the Gram Panchayat with the approval of or on the direction of the Sarpanch and on the Sarpanch failing to give approval, to himself convene the meeting. Under Section 32 he is responsible for implementing the resolutions of the Gram Panchayat and of its committees and where he is satisfied that a resolution has not been legally passed or is in excess of the powers conferred by the Act or if carried out is likely endanger human life, health or public safety, is required through the Sarpanch to refer the matter to the Commissioner. The Executive Authority also has control over all the officers and servants of the Gram Panchayat and is empowered to exercise all powers and perform all functions conferred or imposed under the Act and for the purpose of carrying out the provisions of the Act. 80. The Executive Authority (Section 35) may delega....
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....he Gram Panchayat. There is no effective control provided except the vacuous declaration that these officers and servants shall be subordinate to the Gram Panchayat. The provisions of the 1994 Act have ensured that the declaration of control is ineffective in reality and operation. 85. Under Section 77 the budget is to be framed by the Executive Authority and placed before the Gram Panchayat. The Gram Panchayat is required to sanction the budget with such modification as it thinks fit. When sanctioned by the Gram Panchayat the Executive Authority forwards the budget to the Divisional Panchayat Officer, who is empowered to make suggestions and modifications and return it to the Gram Panchayat. The Gram Panchayat may thereupon consider the same and approve it with or without modifications at a special meeting. The budget so approved is final The framing of the budget is an important constituent of governance exercisable by an elected body and constitutes a key ingredient of accountable and representative Government. The budget is an instrument in which the fiscal policies, economic choices and social and developmental priorities of the Panchayat, are reflected. Even in this area n....
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.... function as administrative subordinates of the State and its appointed and controlled agents, in whom is vested substantial and effective financial, administrative and organizational control, control over the functionaries of the Panchayat Raj institutions, power to identify and effectuate even essentially local and neighbourhood needs and developmental requirements, power to prioritise, initiate and execute policy to cater to such requirements. 89. The elected representatives of the three levels of Panchayats are elected and expected (and mandated too) to deliberate at least at ordained intervals. They deliberate and resolve, resolutions whose effectuation is vested in the discretion of the Executive Authority of the Gram Panchayat, the MPDO, or the Chief Executive Officer of the Zilla Parisahd, who in turn are bound by the instructions of the District Panchayat Officer, the District Collector, the Commissioner of Panchayat Raj and/or the State Government. 90. Local self-Government as ordained by the amended constitutional calculus, despite the inconclusiveness of the language in Article 243G at least signal a discernable autonomy in the area of governance, in identifying l....
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....ocal self-Government institutions. With regard to the personnel of the Panchayat Raj Institutions, the report records that an institution of self-Government must have the power to recruit and control the officers and other employees required for managing its functions. The Constitution is totally silent about this viability aspect of institutional autonomy. The failure to address the human resource issue has definitely affected the growth of Panchayats as self-governing institutions. The report also points out that while the task of assigning functions to the Panchayats was given to the State Legislature, this has been usurped by the State Government. Though the Constitution did not intend that the Panchayat would be like any other authority created by a Statute of the State with the only difference as regards the Constitutional guarantee of its certainty, continuity, reservations etc., but with no difference as regards the State Government's unfettered power to restrict or limit its autonomy. The conclusion of the Commission in this area is that the gap between the constitutional hope and the reality in the area of empowerment of Panchayat Raj Institutions was on account of th....
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....ted through negotiations so that all the members share in the making and executing of decisions, The political principles underlying and animating federal systems emphasize the importance of bargaining and negotiating co-ordination among several power centers and underline the virtues of dispersed power centers as a means of safeguarding individual and local liberties. 97. Federal systems are principally based on six fundamental premises. They are non-centralisation; pre-disposition towards democracy; established system of checks and balances; operation through a process of open bargaining; usually under a written constitution; and presence of constitutionally determined fixed units of power within the polity. 98. Federalism is more than a mere structural arrangement; it is a special mode of political and social behaviour as well, involving a commitment to partnership and active co-operation on the part of individuals and institutions that at the same time take pride in preserving their own integrity. Maintenance of the federal principle requires the general Government and the constituent polities to each have their substantially complete governing institutions of their own, ....
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....nd the State Legislatures under Part-XI read with the VII Schedule of the Constitution. It is impermissible to characterize the Panchayats as the 3rd tier of the federal structure, under the Indian constitutional scheme even after the 73rd amendment. 102. The debate as to whether the Panchayats constitute part of the federal structure under the Constitution, is pointless and sterile. If the provisions of Part IX of the Constitution obligate, endowment of powers and authority and devolution of powers, authority and responsibility on the Panchayats, it matters not that the Panchayats are not a part of the Federal structure. Constitutional interpretation is an exercise beyond identification of labels. Whether a mandamus can issue to the Legislature to enact a law: 103. While seeking invalidation of certain provisions of the 1994 Act and the Statutory Rules made thereunder, the petitioners seek a direction to the respondents "to take appropriate and immediate steps to discharge their constitutional duties of giving effect to the same and for other consequential constitutional measures to conform to the constitutional requirements.'' The endowment of powers and authorit....
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....f not altogether coherent or dovetailing compromises. The value pregnant provisions of the Constitution are often couched in phraseology intended more to outline principles rather than to engrave the details. In the interpretation of a Constitutional document, a rigid literal approach is not conducive to elucidate the true import of the Constitutional intent. It must be remembered, as pointed out and reiterated by M.N. Venkatachaliah, J (as his Lordship then was) in R.C. Poudyal v. Union of India, [1993] 1 SCR 891, that in an interpretation of a constitutional document, "...the words are, but the frame work of concepts and concepts may change more than words themselves. The significance of the change of the concepts themselves is vital and the constitutional issues are not solved by a mere appeal to the meaning of the words without an acceptance of the lines of their growth." 106. One interpretive principle in elucidating the meaning of constitutional provisions is that reiterated by S.R. Das, J., in Keshavan v. State of Bombay. 1951 CriLJ 680, that " ...a Court of law has to gather the spirit of the Constitution from the language of the Constitution. What one may believe or thi....
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.... embodies clearly counter-majoritarian provisions, intended to safeguard perceived enduring values, liberties and minority interests against transient majority pressures, that might find utterance either in executive action or legislative fiat. 108. In the sprawling debate over the legitimacy of judicial review, the counter majoritarian objection to judicial review pointed out by Alexander Bickel (The Least Dangerous Branch) is whether a non elective judiciary placed in office neither by the majority nor directly accountable to the people could be justified with the power to overturn democratic decisions reflected in the legislative will? The underlying assumption of the Bickelien problematic is that the policy decisions of the legislatures are democratic and need no further justification by simple virtue of the fact that they are the product of an elected assembly. In this view, democracy is represented as essentially a procedural ideal: political decisions are validated through the ballot box and acquire political legitimacy in the light of that process. The other facet of this premise is that just as legislative decisions are presumptively democratic (since they are the produ....
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....acy in any real sense of the word cannot exist without the rule of law. It is the law that creates the framework within which "sovereign will" is to be ascertained and implemented. To be accorded legitimacy, democratic institutions must rest, ultimately on a legal foundation. That is, they must allow for the participation of, and accountability to, the people, through public institutions created under the Constitution. Equally, however, a system of Government cannot survive through adherence to the law alone. A political system must also possess legitimacy, and in our political culture, that requires an interaction between the rule of law and the democratic principle. The system must be capable of reflecting the aspirations of the people. But there is more. Our law's claim to legitimacy also, rests on an appeal to moral values, many of which embedded in our constitutional structure. It would be a grave mistake to equate legitimacy with the "sovereign will" or majority rule alone, to the exclusion of other constitutional values. (emphasis) 111. The republican character of the Government guaranteed by our Constitution assures accountability. Such accountability enforced at ele....
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.... time. They are dynamic and value pregnant. The constitutional meaning of such expressions involves a proliferation of the constitution's purposes by reference to, the enacting history, the signals drawn from other parts of the Constitutional text, some times political and social theories, the nature of the evolution of the civil society and like sources. 115. Ronald Dworkin has shown (Taking rights seriously) that the assumption that law is a system of rules some superior and some inferior, is inaccurate The depiction of constitutional provisions as superior rules is critical to the characterization of the judicial powers as simply the application of rules to facts in deciding cases. However, not all constitutional provisions can be described as rules. While some provisions are rules, such as those specifying that the duration of the House of People, unless sooner dissolved, shall continue for five years - Article 83, a person shall not be qualified to be chosen to fill a seat in the House of the People unless he is not less than 25 years of age Article 84(b), an ordinance promulgated by the President shall cease to operate at the expiration of six weeks from the reassembly....
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....hat its provisions exist on a spectrum ranging from the relatively specific to the fairly open-textured. The judicial branch is not provided an algorithm of constitutional meaning or an authoritative dictionary that explicates the meaning of the entire text. The framer (and the amenders too) were aware that it was a Constitution that they were drafting, which led to a choice of language capable of and susceptible to value-identification, explication of purposes and of growth. 119. Upon the value pregnant areas of the Constitution, our Supreme Court is seen to have often addressed itself to the resolution of competing claims of value arguments. The equality injunctions of the Constitution (Articles 14, 15 and 16) do not define the expression. That the doctrine of classification and the concept of non-arbitrariness are integral to the concept of equality, are conclusions drawn by the judicial branch from origins, enacting history, social and economic philosophy, comparable organic texts and jurisdictions and other sources - see [Chiranjit Lal v. Union of India [1950] 1 SCR 869, State of West Bengal v. Anwar Ali Sarkar, 1952 CriLJ 510, Syed Quasim Razvi v. State of Hyderabad, 1953 ....
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.... Clause- 2(d) of Article 323-A and Clause- 3(d) of Article 323-B of the Constitution, are unconstitutional. The identification (of judicial review as an essential feature, as comprising the basic structure of the Constitution and thus beyond the amendatory power of the Parliament) was not based on any singular signal emerging from the constitutional text. At first blush the concept of judicial review too might appear "nebulous", "elusive" or "inconclusive". This is the specific contention urged on behalf of the Union and the State in respect of the expression 'self-Government' occurring in Part-IX of the Constitution. If the theory propounded by the State, in this case, is to commend acceptance, then judicial review ought to mean what the Legislature intends the expression to mean and nothing further and the judicial branch would be constitutionally forbidden to consider what judicial review embodies. Investiture of adjudicatory power including in the area of vires of legislative provisions, invested in an exclusively executive authority and under the broad control of the State, would have to be upheld, if the contention of the State in this case is to commend acceptance by....
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....he right to privacy is an essential ingredient of personal liberty under Article 21, to the present scope of the expression 'life or personal liberty', demonstrates that a cosmos of meaning has been attributed to this expression. While the expression textually remains unaltered, the penumbra has grown infinitely and by judicial exegesis. The right to life and its corollary to privacy now includes; the right to telephone conversation in the privacy of the home or the office -PUCL v. Union of India 1997 (2) ALD (SCSN) 39 : AIR 1997 SC 207, the right to shelter - Prabhakaran Nair v. State of T.N. [1988] 1 SCR 1, a right to speedy trial - Kadra Pahadia v. State of Bihar, AIR 1981 SC 939, State of Mahrastra v. M.P. Vashi, AIR 1996 SC 1, the right to legal assistance - Sheela Barse v. Maharastra, 1983 CriLJ 642, the right against illegal detention -Hussaianara Khatoon (I to VI) v. Home Secretary, Bihar, 1979 CriLJ 1036, the right to health -C.E.R.C. v. Union of India, (1995) IILLJ 768 SC, the right to pollution-free environment - M.C. Mehta v. Union of India, [1986] 1 SCR 312 . These are but illustrative, of the vast expansion to the meaning of the expression 'life or persona....
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....e Court to constitutional interpretation. 125. In S.C. Advocates-on-Record Association and Anr. v. Union of India, AIR 1994 SC 268, [2nd Judges' case] the majority opinion evolved the concept of primacy of the opinion of the Chief Justice of India. In the text of the constitution consultation by the President with the Chief Justice of India and other consultees is specified (Articles 124 and 217). The construction that the consultation subsumes primacy to the views of the Chief Justice of India was ratiocinated by the Supreme Court majority, inter alia, on presumptions drawn as to the purposes of the constitution and the independence of the judiciary as a core value. The Supreme Court majority structured the reasons for constructing a primacy for the views of the Chief Justice of India in the consultation process, by importing values into the constitutional text. To the "inconclusive", "nebulous" or "elusive" expression consultation (characterisation of the expression 'self-Government' by the Learned Solicitor General for India and the Learned Additional Advocate General for the State), the Supreme Court majority implied values beyond the lexicographic explication of....
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....127. Subsequent to the judgment of the Supreme Court in the First Democratic Reforms Case, the Representation of the People Act, 1951 (for short 'the 1951 Act') was amended initially by an ordinance, later replaced by the Representation of the People (3rd Amendment) Act, 2002. Sections 33A and 33B were incorporated providing a right to information to the voter and obligating a candidate at election to furnish information in an extent restrictive than the extent directed by the Supreme Court in the First Democratic Reforms case. The validity of this legislative exercise was challenged before the Supreme Court in PUCL and Anr. v. Union of India and Anr. [2003] 2 SCR 1136, - the second Democratic Reforms case. The Supreme Court held the concept of freedom of speech and expression is not static. The felt necessities of the times coupled with experience drawn from the past may give rise to the need to insist on additional information on the aspects not provided for by the law. While striking down Section 33B of the 1951 Act as introduced by the amending Act, the Supreme Court reasoned that in the First Democratic Reforms case it had determined the ambit of the fundamental "right....
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....nd instruction on required, permitted or prohibited course of action. Felix Frankfurter in "Some reflection on the readings of the Statutes" observed, "--the difficulty is that legislative ideas which laws embody are both explicit and immanent. Words in statues are not unlike words in a foreign language in that they too have "associations, echoes and overtones". Judges, cautioned Frankfurter must retain the associations, hear the echoes and capture the overtones. He also pointed out that just as Governments some times solve problems by shelving them temporarily, the legislature also does so, "statues as well as constitutional provisions at times embody purposeful ambiguity or are expressed with a generality for future unfolding." 131. Ambiguity, generality or inconclusiveness in a statutory or constitutional context, legitimizes the role of the judiciary as an interpreter whose task in such circumstances is beyond the explication of the meaning by an appeal to the dictionary. This legitimacy must, however, comport with the need to avoid constitutional nihilism. As Robert H. Bork pointed out in "Tradition and Morality in Constitutional Law". "In a constitutional democracy the mor....
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.... arguments based on the plain or necessary meaning of the constitutional text; arguments concerning the framer's intent; arguments of constitutional theory; arguments based on judicial precedents and arguments asserting moral or political values. The question of how the different theories fit together or weigh against each other in a single, presumptively coherent constitutional calculus, is a question that has no simple answer. Each of the identified theories themselves invite interpretation. Richard H. Fallon Jr., of the Harvard University, after explaining the bases of each of the theories, argues that the supervening value of democracy does not undermine the competence of Judges, or require insofar as is humanly possible that they should abjure reliance on value arguments. The Constitution assumes, he points out, that legislation by contemporary majorities is subject to the higher constitutional law and is subject to scrutiny by a constitutional practice in which Judges legitimately identify the meaning of the constitutional text relying on arguments about the constitutional values. In an article "A Constructivist Coherence Theory of Constitutional Interpretation" Fallon po....
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....vernance in non-elected officials, answerable not to such elected representatives but to hierarchies of the State executive apparatus constitutes, in our considered view, a subversion of local democracy, however, narrowly defined. Such a measure would constitute Panchayat governance 'of' the local populace and 'by the executive authority' and his superiors, not 'by' the elected representatives. Part-IX has not mandated elections with reservations (intended to effectuate, empowerment of the under-empowered) as a mere dogmatic ritual shorn of substance. 137. Routledge has published 'The Encyclopedia of Democracy' in 1995. This study conducted under the chief editorship of Seymour Martin Lipset and an impressive editorial board consisting of eminent political and social scientists made a fairly comprehensive study of the concept of democracy, what it means, where it occurs and under what conditions. It is a compendious reference work on 'democracy'. 'Local Government' is one of the aspects considered in the above study. A summary of the Article on 'Local Government' opens a window to the why and what of 'Local Government&#....
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....background, needs and a host of other attributes that constitute the diversity of a plural society. A structure imposing uniform standards for services and regulation, of all localities, looses local richness. The dispersion of power among different levels of Government facilitates a national system of Government that checks and balances among its separate branches. (c) Local autonomy in a national system could foster an innovative spirit among the local units that will help them adopt to changing conditions. Local democracy is a major source of innovative ideas and specific practices from which all levels of Government can learn in years of turbulence, tumult and turmoil. A well-functioning polity having an effective vertical division of powers emerges from such baptism by fire, a richer, and more mature and enduring instrument for the governance of its plural society. Analysis and Conclusions: 142. We are satisfied that textual ambiguity in the constitutional context does not per-se subsume exclusive consecration of undefined authority, for exclusive legislative unfolding of the meaning of the organic text. Where the textual symbol is apparently intended to convey ....
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.... to endow such power, authority and responsibility on the Panchayats) as the Legislature thinks fit? Rarely, if at all, would an enabling grant of power, require such repetitive verbal emphasis and by an amendatory exercise requiring special procedure. 146. The Union and the State Governments, in effect, argue that the expression 'as may be necessary' means 'as the State Legislature may consider necessary". Learned Advocate General for the State, placing reliance on the decision of House of Lords in George v. Devon County Council, (1988) 3 All.ER 1002, urges that the expression 'as may be necessary' in Article 243G merely signals the conferment of a discretion in the legislature. It requires to be noticed that in the above decision, the House of Lords was considering the provision of Section 55(1) of the Education Act, 1944. The statutory expression that fell for consideration reads: a local education authority shall make such necessary arrangements for the provision of transport and otherwise, as they consider necessary (emphasis). In interpreting this expression. Lord Keith of Kinkel, with whom the other Law Lords concurred, held: "The authorities function ....
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....2) All. ER 898, Ramji Missar v. State of Bihar 1963 Sup (2) SCR 745, Bashira v. State of U.P., : [1969]1SCR32, State of U.P. v. Jogindra Singh, (1963) IILLJ 444 SC. 150. The expression "may" in Article 124(5) of the Constitution fell for the consideration of the Constitution Bench of the Supreme Court in Sub-Committee of Judicial Accountability v. Union of India, AIR 1992 SC 320 . The majority per B.C. Ray, J relying on the principle in Jogindra Singh's case (supra) pointed out that "Sometimes, the legislature uses the word "may" out of deference to the high status of the authority on whom the power and the obligation are intended to be conferred and imposed." Indeed, pointed out the Supreme Court, when a provision is intended to effectuate a right - here it is to effectuate a constitutional protection to the Judges under Article 124(4) - even the provision in Article 124(5) which may otherwise seem merely enabling, becomes mandatory. The exercise of the power is rendered obligatory. The Supreme Court also ruled that if the word "may" in Article 124(5) is given any other meaning, that sub-Article would render itself to be treated by the Parliament as superfluous, redundant a....
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....chayats in the State (village, intermediate and District levels). Such devolution and apportionment of powers and responsibilities among the Panchayats is in respect of the matters enumerated in Clauses (a) and (b) of Clause 243G, including the matters listed in Eleventh Schedule. 154. On a true and fair construction of Article 243G in the context of the constitutional purposes analyzed hereinbefore, it would be impermissible to conclude that the State Legislature has the discretion whether or not to endow the Panchayats with any powers and authority or to devolve upon them any powers and responsibilities. The overall peace, order and good Government in the State is the responsibility of the State and, therefore, the discretion of the State Legislature to incorporate in the legislation dealing with the Panchayat Raj Institutions, such measures as are necessary to effectuate these purposes of the State is on-exceptionable and a given. A balanced theory of interpretation of the Constitution's de-centralisation of power values, warrants the conclusion that while incorporating provisions for control of the Panchayat Raj Institutions to achieve the over all and legitimate purpose....
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....such purposes and subject to such conditions and limits, as may be prescribed. Clause (d) of Article 243H enables such law to provide for Constitution of Funds for crediting of the monies received, respectively by or on behalf of the Panchayats and for withdrawal of such monies there from, as may be specified in the law. 157. In the light of the analysis of the purposes of Part-IX of the Constitution, considered in this judgment, denial by the State Legislation of any financial resources to the Panchayats whether by way of empowering them to levy, collect and appropriate taxes, duties etc., and/or assigning to them such taxes, duties etc., collected by the State Government, as would invalidate the functionality of these institutions, would negate the constitutional purposes. 158. The empowerment of the Panchayats in the financial domain or allocation to them of the general resources of the State is, however, a complex policy choice, integral to the executive and legislative departments and normatively outside the domain of the judicature. With the most competent and comprehensive presentation of factual data, scrutiny of this area by the judicial branch is beset with the dang....
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....cted representatives of the Panchayats are the product of a sub-state democratic choice. 160. The 'Separation of Powers' doctrine is the heart and soul of our Constitution. It is also the seminal structure of our rule of law values. The horizontal division of State powers between the three great departments of the State, together with the checks and balances, such as they are, is a guarantee against aggrandizement of power by any one branch. The vertical division of powers between the Union and the State constitutes our federal system (classical or centrist) and effectuates the federal values espoused by the Constitution, a value that the founding fathers considered essential to the effective maintenance of our plural civil society and a value our apex Court has characterized as basic (Kesavananda and Bommai supra). 161. At the dawn of our republic, the Constitution entrenched the structure of our federal polity by its explicit incorporation of a two-tier federal structure. In recognition of the ancient and historical tradition of effectively functioning Gram Panchayats with due faith that the elected representatives of the federal and State Legislatures would ensure ....
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....ions or policy, economic and the like, within its territory - to consider and promulgate regulations of its choice, is central to its character as a self-governing institution, a legislation which subverts this attribute of a 'local body' would be inconsistent with Part-IX. (c) A State law, the statutory rules and the administrative instructions there under that directly address intrinsic areas that ought to inhere in the local bodies, by commandeering the agenda of the local body and instructing it through the State's executive agents would be a negation of the constitutional purposes. (d) The rights, privileges and immunities, of local bodies, from encroachment by the State are mirror images of individual rights. The Union, State and Panchayats as 'self-Governments' are in reality and fact, different agents and trustees of the people, inter-dependant and not insular. They constitute a homogeneous collage of the constitutional canvas. (e) The constitutional intent (in Part-IX) in enacting a structural mechanism encompassing a vertically divided grant of governance powers with a guaranteed position for local self-Governments is for the....
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.... statutory interpretation principle, the task includes identifying the evils that the 73rd Amendment was brought forth to remedy. 167. The obligation of the State Legislature, to endow Panchayats with powers, authority and responsibility is conditioned by the constitutional instruction that the endowment of powers and functions must enable the Panchayats to function as institutions of 'self-Government'. Endowment of powers and authority on the Panchayats comprised of elected representatives while effectively denuding the elected representatives of effective, if even minimal, control, over functions, finances, planning processes or personnel and the vestiture of effective control over these aspects of Panchayat Raj functions on State actors of various descriptions, constitutes, in our considered opinion, disabling (and not enabling), the Panchayat Raj Institutions, from functioning as institutions of 'self-Government'. Conduct of elections to the Panchayat Raj Institutions, in any State is too complex, expensive and rigorous an exercise to have been constitutionally intended as a symbolic exercise or as a legitimizing devise to confer local democratic legitimacy t....
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....lved in the disputes presented to us have a sufficient legal component to warrant the intervention of the judicial branch. 171. The position of the Union of India - the 2nd respondent, on the status of the Panchayats, and the concomitant constitutional obligations of the State, is demonstrably equivocal and ambivalent. On the one hand the 2nd respondent argues, "The State Legislature has the discretionary powers to decide the quantum of powers to be devolved on the Panchayats." and on the other it asserts, "The State Government has been requested from time to time to devolve more and more powers to PRIs." If according to the first logic - the devolution of powers to the Panchayats is within the exclusive and constitutionally uninstructed discretion of the State and the State Legislature; the Union Executive has no legitimate status to advise the State as to how it should exercise its plenary and exclusive discretion. This ambiguity has not been explained. 172. This post 73rd Amendment constitutional construct requires balance between the State's presence in the functioning of the Panchayats to ensure the preservation of the overall State interests in its myriad State poli....
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....oys the integrity of the Act in its entirety. Such invalidation would result in a vacuum in critical operational areas. 176. We have identified the constitutional mandate and the instructions contained in the provisions of Part-IX, in particular Articles 243G and H and have pointed out the balancing requirements obligated on the State, in the post 73rd Amendment constitutional context. The overlapping and mani folding constitutional principles require sensitive legislative approach to effectuate the purposes and the mandate of Part-IX of the Constitution while preserving the larger State concerns. 136. The provisions of the 1994 Act and the complementary statutory rules and the administrative instructions (analyzed supra and in the Appendix), transgress the constitutional limitations on the States' role, the permissible limits of participation and control with respect to the Panchayats; the States' legislative and statutory instructions enable impermissible intrusions into the functional and financial domains of the Panchayats and usurp total control over the personnel from the Panchayats and vest such control in the State and State agents; such intrusions and controls b....
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....ions of the Executive Authority and provisions relating to officers and other employees of the Gram Panchayat as well as the composition and powers of beneficiary committees and functional committees. Chapter-II of this Part sets out provisions in respect of powers, functions and property of the Gram Panchayat including provisions relating to vesting of public roads, communal properties and management of ferries, in the Gram Panchayat. Chapter-III sets out provisions relating to taxation and finance, powers and the limitations thereon and provisions in respect of taxes leviable by the Gram Panchayat, Gram Panchayat Fund, mode of expenditure from Gram Panchayat Fund and the like. Chapter-IV sets out provisions in respect of public safety, convenience and health and the powers and functions of a Gram Panchayat in this regard. Chapter-V sets out the general and miscellaneous provisions in relation to Gram Panchayat. Part-III sets out provisions relating to the constitution and incorporation, composition, powers and functions of Mandal Parishads including mode of election of members, reservation of seats, qualifications and disqualifications....
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....", "Mandal Parishad Development Officer", "Panchayat Secretary", "Prescribed", "Sarpanch" and "Zilla Parishad" are among the expressions defined. It requires to be noticed that "Gram Panchayat" is defined [Section 2(17)] as meaning 'the body constituted for the local administration of the village under the Act.' In re Gram Panchayats: Section 4 deals with constitution of Gram Panchayats for villages and their incorporation. Section 4(2) enacts that subject to the provisions of the Act the administration of the village shall vest in the Gram Panchayat, which shall, however, not exercise functions expressly assigned by or under the Act or any other law to its Sarpanch, Executive Authority or any other local authority or other authority. Section 6 enacts the constitution of a Gram Sabha comprises all persons whose names occur in the electoral roll for the Gram Panchayat and requires that the Gram Sabha shall meet at least twice every year to consider the specified matters which shall be placed before it by the Gram Panchayat including annual statement of accounts and audit report, program of the work for the year or any new program not covered by the budge....
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....equired to explain at the next meeting of the Gram Panchayat the action, if any, that has been taken or is proposed to be taken with reference to such matter. Section 28(2) enables any member to move a resolution and to interpellate the Sarpanch on matters relating to the administration of the Gram Panchayat, subject to prescribed rules. Section 30 empowers the Commissioner to appoint a whole time or part-time executive authority for a Gram Panchayat or group of contiguous Gram Panchayats, as may be notified. Section 30(4) enacts that the executive authority shall be subordinate to the Gram Panchayat. Among the functions of the executive authority enumerated in Section 31 is the convening of the meeting of a Gram Panchayat with the approval or on the directions of the Sarpanch, ensuring that at least one meeting of the Panchayat is held every month. The proviso to Section 31(1) enables the Panchayat Secretary to convene such a meeting where the Sarpanch fails to give approval for the convening of the meeting. Section 31(2) requires the Executive Officer to attend the meeting of the Gram Panchayat or any committee thereof and to participate in the discussion therea....
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.... methods of recruitment, conditions of service, pay and allowances. Sub-section (5) specifies that all officers and others officers of the Gram Panchayat shall be subordinate to the Gram Panchayat. However, Sub-section (6) enables the Government from time to time, by order, to give such directions to any Gram Panchayat or any officer, authority or person thereof, as may appear to it necessary for the purposes of giving effect to the provisions of the Section and Section 30 and ordains that all such permissions shall be complied with by the Gram Panchayat, officer, authority or person. Section 40 requires that there shall be a beneficiary committee for every Gram Panchayat for execution of the works of the Gram Panchayat and that the composition including co-option of persons who were not members of the Gram Panchayat and the powers, functions and other related matters of the beneficiary committee shall be such as may be prescribed. Section 40(2) mandates the constitution of functional committees for agriculture, public health, water supply, sanitation, family planning, education, communication and for other purposes of the Act; the constitution including co-option of membe....
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....unctional vitality of the Gram Panchayats in respect of several matters such as the conduct of meetings, communication and other services, lighting, education, public health, epidemics, fairs and festivals, general revenues including taxes, financial position and other areas of village administration. Section 60 authorises and enable the taxes leviable by Gram Panchayats. Apart from house tax and tax on village produce sold in the village, Gram Panchayats are empowered to levy such other taxes as the Government may by notification direct any Gram Panchayat or class of Gram Panchayats to levy subject to prescribed Rules in this behalf. A Gram Panchayat shall also levy taxes on transfers of property situate within its jurisdiction in accordance with the provisions of Section 69; a Gram Panchayat may also levy vehicle taxes, tax on agricultural land, land cess, fee for use of poramboke or communal land, for occupation of buildings under it's control and a duty in the form of a surcharge on seigniorage fees collected by the Government on materials other than minerals and minor minerals quarried in the village. Sub-section (6) of Section 60 enacts that any resolution of a G....
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....sanctioned strength of the Gram Panchayat. Rule-2 also requires the proposal to be accompanied by a statement showing the receipts and charges under various heads of accounts for 3 years preceding the year in which the proposal is made, budget estimate for the year and particulars of the approximate or estimated cost of the work in respect of which the tax is supposed to be levied and the amount of tax likely to be realized in the year. Rule 3 enables the Mandal Parishad to offer remarks as to the suitability or otherwise of the rate of tax proposed. Rule 4 enables the District Collector while according sanction for the levy of the tax to specify the rate at which and the period for which it shall be levied and also enables the said authority to extend such power from time to time, if necessary, in order that the purposes for which the tax is levied may be fulfilled. Section 62 empowers the Government by an order published in the gazette and for special and specified reasons therein to direct any Gram Panchayat to levy the house tax referred to in Section 60(1)(a) at such rates and with effect from such date not being earlier than the first day of the year immediately foll....
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....am Panchayat is required within a month from the date the budget is placed before it to sanction the budget with such modifications as it may think fit. Where the Gram Panchayat fails to sanction the budget within the stipulated period, the executive authority is required to submit the budget to the Divisional Panchayat Officer, who is empowered to sanction it with such modifications as he thinks fit. Section 77(2) ordains that a budget sanctioned by the Gram Panchayat be forwarded by the executive authority to the Divisional Panchayat Officer. The D.P.O. may make such suggestions or modifications as he deems fit, to the budget and return it to the Gram Panchayat, which is again empowered to consider the same and approve it with or without modifications at a special meeting convened for the purpose. The budget so approved at such meeting is to be final. Any alterations of the figures shown in the budget as may be necessitated during the course of the year enable a supplemental or revised budget to be framed, sanctioned, submitted or modified in the manner provided in Sub-sections (1) and, (2) of Section 77. Section 137 of the Act empowers the executive authority, subject to prescri....
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....rcharge on any tax imposed by Gram Panchayat or on land or local cess levied within its jurisdiction, in a manner and subject to such ceiling as may be prescribed. Section 165 enumerates the powers and functions of the President and Vice-President of a Mandal Parishad. Administrative controls over Mandal Parishad Development Officer, for the purpose of implementation of the resolutions of the Mandal Parishads, are conferred on the President. Section 167 enumerates the powers and functions of the Mandal Parishad Development Officer. The Mandal Parishad Development Officer is the Chief Executive Authority of the Mandal Parishad. He is empowered to exercise and perform such powers and functions as are entrusted to him by the Government and to exercise powers of supervision over the Gram Panchayats in the Mandal as may be prescribed. He is required to attend the meetings of the Mandal Parishad to take part in the discussions thereat but without a right to vote or move any resolution. Section 167(4) provides that subject to provisions of Section 168 the staff borne on the establishment of the Mandal Parishad and those working in the institutions and schemes transferred....
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....n to sanction or write off cess on requisition made by the Revenue Department, up to Rs. 250/-. As per Section 168 the Mandal Parishad Development Officer and other officers and staff of a Mandal Parishad and the staff employed in the institutions and schools under the Mandal Parishad are made subordinate to the Mandal Parishad. The power to create posts of officers and other employees of Mandal Parishad is vested in the Government under Section 169 and Sub-section (3) thereof also enacts that the salaries, allowances, pensions and contributions etc., of the officers and other employees of the Mandal Parishad, who hold any of the posts, the creation of which is vested in the Government under Section 169 shall be paid out of the consolidated fund of the State by the Government. Sub-section (4) inter alia enacts that the classification and methods of recruitment, conditions of service, pay, allowances, discipline and conduct of the officers and other employees of the Mandal Parishad shall be regulated by rules under proviso to Article 309 of the Constitution. Under Sub-section (5) the Government is empowered to periodically issue directions to any Mandal Parishad, officer, a....
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....uencies specified in Section 178, such election to be by the registered voters of the relevant territorial constituency. Section 181 deals with election of Chairperson and Vice-Chairperson whereunder the Chairperson and Vice-Chairperson shall be elected by and from the elected members of the Zilla Parishad. The election is required to be by show of hands and in compliance with the party whip. A member voting in disobedience of the party whip is declared to have ceased to hold the office qua the second proviso to Section 181(1). Section 182 ensures a five years term of office to the elected members of the Zilla Parishad. Section 186 sets out provisions relating to the appointment, powers and functions of the Chief Executive Authority of the Zilla Parishad. Under this provision the Chief Executive Authority is to be appointed and is liable to be transferred by the Government. The executive power to carry out the provisions of the Act vests in the Chief Executive Authority who is also empowered to lay down the duties of all officers and services of, or holding officer under the Zilla Parishad in accordance with the rules made by the Government The Chief Exec....
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....pay, allowances and disciplinary conduct of the Chief Executive Authority. Section 187 ordains that for every Zilla Parishad there shall be constituted a Standing Committee, such Standing Committees to be constituted are in respect of - (a) planning and finance, (b) rural development, (c) agriculture, (d) education and medical services, (e) woman welfare, (f) social welfare and (g) for works. The powers and functions of the Standing Committee, the permanent invitees to it and incidental matters therefore are to be as prescribed and the District Collector is empowered to participate in the meetings of all Standing Committees without voting rights. Section 188 enumerates the permanent invitees to the meetings of the Zilla Parishad and Section 189 empowers the Chairperson or Vice-Chairperson of a Zilla Parishad or a Chairperson of a Standing Committee thereof to invite any person other than an office bearer of any political party having experience and otherwise knowledge of any subject under consideration, for the purpose of consultation, to attend its meeting. The powers and functions of Zilla Parishad are enumerated in Section 192 including the powers and ....
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....ssification, methods of recruitment, conditions of service, pay and allowances and discipline and conduct of the officers and employees of a Zilla Parishad are also to be regulated inter alia by rules made under the proviso to Article 309 of the Constitution qua Sub-section (4). Sub-section (5) empowers the Government to periodically issue directions to any Zilla Parishad or any officer, authority or person thereof as are necessary for giving effect to the provisions of Section 195 and that the Zilla Parishad, officer, authority or person is required to comply with such directions. The A.P. Zilla Parishad Deputy Chief Executive Authorities (Powers and Functions) Rules, 1995, have been issued in G.O. Ms. No. 490, PR&RD Department, dated 3.12.1996, whereunder extensive administrative and financial powers are conferred on the Deputy Chief Executive Authority. Section 199 deals with the budget of the Zilla Parishad and empowers the Chief Executive Authority to frame the budget and place it before the Zilla Parishad which is required to sanction the budget with modifications, if any. The budget so sanctioned should be submitted to the Government by the Chief Executive Authority....
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.... a power to appoint such other person or authority to perform the powers and functions of the dissolved body. After the aforesaid brief survey of the provisions of the 1994 Act, some of which are challenged in the writ petition, a broad structural analysis of the three levels of "Panchayats", as provided in the 1994 Act in the context of the constitutional prescriptions in Part IX is apposite. Constitution of the Panchayat Bodies: The Gram Panchayat, Mandal Parishad and Zilla Parishad are to public bodies corporate. [Section 4(3), 148(4), 177(2)]. Governance Structure of Panchayats to be representative: (A) The Sarpanch of a Gram Panchayat to be directly elected by the registered voters of the Gram Panchayat [Section 14(1)]. (B) The Members of the Gram Panchayat are also to be elected directly, by the registered voters of the respective Wards of the Gram Panchayat [Section 8]. (C) The Members of a Mandal Parishad are to be directly elected by the registered voters of the relevant territorial constituencies specified in Section 150 [Section 152(1)]. (D) The President and Vice-President of a Mandal Parishad to be elected fro....
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.... land; for occupation of building and duty in the form surcharge or seigniorage fees, collected by the Government on material other than minerals and minor mineral quarried in the village, subject to the rate of the duty to be fixed with the previous approval of the Government. In addition a Gram Panchayat is enabled, with the previous approval of the prescribed authority, to levy a duty in the form of a surcharge as may be fixed by it, subject to the statutory ceiling [Section 60]. (B) The house tax that may be levied by a Gram Panchayat under Section 60 (1)(a) is subject to various restrictions that may be imposed by Rules made by the Government qua Sub-section (4) of Section 61. Further restrictions on the taxes leviable by a Gram Panchayat are enacted in Section 62 whereby the rate and the date with effect from which the house tax shall be levied may be determined by a published order of the State Government. Such direction is deemed to be a resolution by the Gram Panchayat. A Gram Panchayat is disabled from altering the rate or abolishing the house tax, except with the previous sanction of the Government [Section 62]. (C) A Gram Panchayat may, with the approv....
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....nt of cottage and village industries, Khadi, Silk, Coir, Handicrafts and the like; (iv) donations and contributions received by the Parishad from Gram Panchayats or public; (v) such income of the Zilla Parishad as the Government may allocate to a Mandal Parishad; (vi) such share of the land revenue, State taxes or fees, as may be prescribed; (vii) proceeds or tax surcharge or fees which the Parishad is empowered to levy under the Act or any other law; (viii) such contributions as a Mandal Parishad may levy from Gram Panchayat and (ix) any other income from a remunerative enterprise. Sub-section (2) requires the Government to make an annual grant at the rate of Rs. 5/- per person residing in the Mandal and Sub-section (3) ordains that Mandal Parishad's expenses include the salaries and allowances of its officers and other employees and the allowances to be paid to persons invited to attend meetings of the Mandal Parishads as well as the allowances for attending the meetings of the Mandal Parishads as well as any other item of expenditure as directed by the Government for carrying out the purposes of the Act and other expenses as may be necessary for such purpose. Zil....
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....is one of the consequential questions, which also fall for consideration. But the basic question is about the extent of the power of judicial review available in such like matters where the question is about the sufficiency or inadequacy of power or authority conferred upon the Panchayat Raj Institutions. 180. We had the benefit of perusing the separate judgments prepared by our learned brothers G. Raghuram, J and P.S. Narayana, J. Both the learned Judges have analysed the issues in detail with reference to the various provisions of the Constitution, the A.P. Panchayat Raj Act, 1994 (Act. No. 13 of 1994), the constitutional validity of which has been challenged in the petitions, the Rules framed thereunder and various administrative instructions issued by the State Government. Brother G. Raghuram, J in his separate opinion has held that organising the Panchayat Raj Institutions do not constitute the third tier of the federal structure exemplifying a further unit in the vertical division of the governance power under the Constitution, with which we fully agree. 181. Brother G. Raghuram, J., has further opined that the discretion with the Legislature of a State in the matter of....
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....vene Part III of the Constitution, opined that Article 243G of the Constitution is only an enabling provision. Article 243G and Article 246(3) have to be interpreted harmoniously and the constitutional scheme as regards distribution of powers between the Centre and the State negates the stand of the petitioners that the Panchayat Raj Institutions should be endowed such constitutional status so as to touch upon the federal set up and the basic structure concept. In his opinion, the words "the Legislature of a State may, by law, endow the Panchayats with such power and authority" used in Article 243G makes all the difference. 184. It is for the State Legislature to decide by expressing its will through legislation or subordinate legislation that to what extent the Panchayat Raj Institutions should be conferred with power and authority. The power of the Court in such like matters cannot be stretched too far while exercising the jurisdiction under I Article 226 of the Constitution so as to question the political wisdom unless it is established that there is clear infraction and breach of the imperative constitutional provisions. Adequacy or inadequacy of the powers cannot be gone in....