Bhanumati Etc. Etc vs State Of U.P.Tr.Prinl.Sec.& Ors

44 of 2007). As the validity of the said

amendment was in issue in all the appeals, they

were heard together and are decided by this

judgment.

2.In the course of argument before this Court

factual controversies were not very much raised.

The appeals were mostly argued on the legality

of the amendment from various angles which will

be considered hereinabelow.

3. The administration of Kshetra Samities and Zila

Parishads in Uttar Pradesh (hereinafter, UP) is

governed by Uttar Pradesh Kshetra Panchayats and

Zila Panchayats Adhiniyam, 1961 (hereinafter,

`1961 Act'). Prior to that there was United

Provinces Panchayat Raj Act, 1947. The 1961 Act

suffered several amendments in 1965, 1976, 1990,

1994, 1998 & 2007 by UP Act 16 of 1965, UP Act

37 of 1976, UP Act 20 of 1990, UP Act 9 of 1994

2 and UP Act 44 of 2007 respectively. The 1994

amendment by UP Act 9 of 1994 was in respect of

both the 1947 and 1961 Acts. That amendment was

made in keeping with the objectives incorporated

in the Constitution (73rd Amendment) Act, 1992.

4.Several aspects of the amendment act were

challenged. Firstly, it was challenged that the

offices of "Up-Pramukh", "Senior Up-Pramukh",

`Junior Up-pramukh" and "Upadhyaksha" have been

omitted by Section 9 of the Amendment Act, being

UP Act 44 of 2007 (hereinafter, the amendment

Act).

5.Similarly amendment was made to United Provinces

Panchayat Raj Act, 1947 by Section 2 of the

Amendment Act.

6.For a proper appreciation of the effect of

amendment, Section 2 of the amendment Act is set

out:

"In the United Provinces Panchayat Raj Act, 1947, hereinafter in this chapter referred

3 to as the principal Act, the word "Up- Pradhan" wherever occurring including the marginal headings, shall be omitted."

7.There has been a general amendment to 1961 Act

by Section 9 of the amendment Act. Section 9 is

therefore set out:

"In the Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961, hereinafter in this chapter referred to as the principal Act, the words "Up-Pramukh", "Senior Up Pramukh", "Junior Up Pramukh"

and "Upadhyaksha" wherever occurring including the marginal headings and Schedules, shall be omitted."

8.Challenging the said amendment, it was urged by

the learned counsel that by bringing about such

amendment, the essence of the Panchayati

principles has been eroded and provisions have

been made for executive interference.

9.The learned counsel further urged that such

amendment has been made in total contravention

of the principle enshrined in Part IX of the

Constitution. It was urged that Part IX of the

Constitution provides for a three tire structure

4 of Panchayat administration and the reasons for

such a three tire is to minimize the scope of

executive interference. It was urged if the

Pradhan or Pramukh of the unit of governance in

Panchayat is, for any reason, removed or

disqualified, from running the administration,

the up-pradhan or the up-pramukh, prior to such

amendment could have taken over, whereas the

abolition of those offices will pave the way of

executive interference.

10.Challenging the amendment it was further urged

that there is no concept of no-confidence motion

in the detailed constitutional provision under

Chapter IX of the Constitution. Therefore, the

incorporation of the said provision in the

statute militates against the principles of

Panchayti Raj Institution. Apart from that the

substitution of the provision `more than half'

in place of `not less than two thirds' and the

words `one year' in place of `two years' in

Sections 15 and 28 of the amendment Act further

5 dilutes the principle of stability and

continuity which are main purposes behind the

object and reasons of the Constitutional

amendments in Part IX of the Constitution.

11.The exact provisions of the aforesaid

amendments by the impugned amendment Act are as

follows:

"In Section 15 of the principal Act,-

(a) in sub-section (11) for the words "not less than two thirds" the words "more than half" shall be substituted.

(b) In sub-section (12) and sub-section (13) for the words "two years" the words "one year" shall be substituted.

In Section 28 of the principal Act-

(a) in sub-section (11) for the words "not less than two thirds" the words "more than half" shall be substituted.

(b) in sub-section (12) and sub-section (13) for the words "two years" the words "one year" shall be substituted.

12. In order to appreciate these submissions this

Court may examine the genesis of the

6 Constitutional provisions about Panchayat prior

to 73rd Amendment of the Constitution.

13. Prior to the Constitution (73rd Amendment) Act,

1992, the Constitutional provisions relating to

Panchayat was confined to Article 40. Article

40, one of our Directive Principles, runs as

under:

"40. Organization of village Panchayats - The State takes 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."

14.The Constitution's quest for an inclusive

governance voiced in the Preamble is not

consistent with Panchayat being treated merely

as a unit of self-Government and only as part of

Directive Principle.

15.If the relevant Constituent Assembly Debates

are perused one finds even that Constitutional

provision about Panchayat was inducted after

strenuous efforts by some of the members. From

7 the Debates we do not fail to discern a

substantial difference of opinion between one

set of members who wanted to finalize the

Constitution solely on the Parliamentary model

by totally ignoring the importance of Panchayat

principles and another group of members who

wanted to mould our Constitution on Gandhian

principles of village Panchayat.

16. The word `Panchayat' did not even once appear in

the draft Constitution. Graneville Austin in his

treaties `Indian Constitution: Corner Stone of a

Nation' (Oxford) noted that the drafting

Committee did not even discuss in its meetings

the alternative principles of Gandhian view of

panchayat. The draft Constitution was published

on 26th February, 1948. (See page 34 in Austin)

17.One of the strongest critics of the draft

Constitution was Dr. Rajendra Prasad and he

opined that "the village has been and will even

continue to be our unit in this country."

8

18.Subsequently other members like M.A. Ayangar

and N.G. Ranga also suggested some amendments to

the draft Constitution and both harped on the

introduction of Panchayati Raj principles.

Their arguments quoted by Graneville Austin,

were on the following lines:

"The State shall establish self-governing Panchayats for every village or a group of villages with adequate powers and funds to give training to rural people in democracy and to pave the way for effective decentralization of political and economic power." (Page 36)

19.Mr. Ayangar expressed his views very strongly

by saying "Democracy is not worth anything, if

once in blue moon individuals are brought

together for one common purpose, merely electing

X, Y and Z to the assembly and then disperse."

20.Somewhat similar opinion was expressed by S.C.

Mazumdar and his views were, "the main sources

of its (India's) strength lies in `revitalized'

9 villages but he accepted that for real purpose a

strong unifying central authority is a

necessity."

21.The opinion expressed by S.C. Mazumdar thus

struck a balance between Gandhian principles and

the parliamentary model of the Constitution.

22. However, under the strong pressure of criticism

from various members, the Assembly rather

grudgingly accepted that an article concerning

the Panchayat should be included in the

Directive Principles. On 22nd November, 1948, K.

Santhanam moved the official amendment and that

is how Article 40, in its present form, came

into existence. The amendment was accepted by

Dr. Ambedkar.

23.About this article, Garneville Austin

commented:

"The incorporation of Article 40 in the Constitution has proved to have been less a gesture to romantic sentiment than a bow to realistic insight. And the aim of the

10 article has long been generally accepted:

if India is to progess, it must do so through reawakened village life." (Page 38 Supra)

24.Participating in the debates and supporting the

amendments, some of the members made comments

which are still very pertinent in appreciating

the roots of our democratic policy on which is

based the edifice of our Constitutional

democracy.

"Sir in my opinion the meaning of this Constitution would have been nothing so far as crores and crores of Indian people are concerned unless there was some provision like this in our Constitution. There is another point also viz., for thousands and thousands of years the meaning of our life in India as it has been expressed in various activities, was this that complete freedom for every individual was granted. It was accepted that every individual had got full and unfettered freedom; but as to what the individual should do with that freedom there was some direction. Individuals had freedom only to work for unity. With that freedom they are to search for unity of our people. There was no freedom to an individual if he works for disruption of our unity. The same principle was also accepted in our Indian constitution from time immemorial. Every village like organic cells of our body was given full freedom to express itself but at

11 the same time with that freedom they were to work only to maintain and preserve the unity of India.

Sir our village people are so much familiar with this system that if today there is our Constitution no provision like this they would not have considered this as their own Constitution or as something known to them, as something which they could call their own Constitution or as something known to them, as something which they could call their own country's Constitution. Therefore, Sir, I am glad and I congratulate both my friend the Hon'ble Mr. Santanam and the Hon'ble Dr. Ambedkar on moving this amendment as well as for acceptance of the same. Sir, I commend this."

(Shri Surendra Mohan Ghosh: West Bengal:

General)

25.The opinion of Seth Govind Das from Central

Provices and Berar is equally relevant:

"Ours is an ancient, a very ancient country and the village has had always an important position here. This has not been so with every ancient country. In Greece, for instance, towns had greater importance than villages. The Republics of Athens and Sparta occupy a very important place in the world history today. But no importance was attached by them to the villages. But in our country the village occupied such an important position that even in the legends contained in most ancient books - the Upanishads - if there are descriptions of forest retreats, of the sages, there are also descriptions of villages. Even in

12 Kautilya's Arthashastra there are to be found references to our ancient villages. Modern historians have also admitted this fact. We find the description of our ancient village organization in `Ancient Law' by Mr. Henry Man, `Indian Village Community' by Baden Powell and in `Fundamental Unity of India' by Sri. B.C. Pal. I would request the members of this House to go through these books. They will come to know from these books the great importance, the village have had in India since the remotest times. Even during the Muslim rule villages were considered of primary importance. It was during the British regime that the villages fell into neglect and lost their importance. There was a reason for this. The British Raj in India was based on the support of a handful of people. During the British regime provinces, districts, tehsils and such other units were formed and so were formed the Taluqdaris, Zamindaris and Malguzaris. The British Rule lasted here for so many years only on account of the support of these few people.

Just as Mahatma Gandhi brought about revolution in every other aspect of this country's life so also he brought about a revolution in village life. He started living in a village. He caused even the annual Congress Sessions to be held in villages. Now that we are about to accept this motion I would like to recall to the memory of the members of this House a speech he had delivered here in Delhi, to the Asiatic Conferences. He had then advised the delegates of the various nations to go to Indian villages if they wanted to have the glimpse of the real India. He had told them that they would not get a picture of real India from the towns. Even today 80% of our population lives in

13 villages and it would be a great pity if we make no mention of our villages in the Constitution."

26.In other representative democracies of the

world committed to a written Constitution and

rule of law, the principles of self Government

are also part of the Constitutional doctrine.

It has been accepted in the American

Constitution that the right to local self-

Government is treated as inherent in cities and

towns. Such rights cannot be taken away even by

legislature. The following excerpts from

American Jurisprudence are very instructive:-

"Stated differently, it has been laid down as a binding principle of law in these jurisdictions that a statute which attempts to take away from a municipal corporation its power of self-Government, except as to matters which are of concern to the State as a whole, is in excess of the power of the legislature and is consequently void. Under this theory, the principle of home rule, or the right of self-Government as to local affairs, is deemed to have existed before the constitution."

(Volume 56, American Jurisprudence, Article

125.)

14

27. Under 73rd Amendment of the Constitution,

Panchayat became an `institution of self

governance' which was previously a mere unit,

under Article 40.

28. 73rd Amendment heralded a new era but it took

nearly more than four decades for our Parliament

to pass this epoch making 73rd Constitution

Amendment - a turning point in the history of

local self-governance with sweeping consequences

in view of decentralization, grass root

democracy, people's participation, gender

equality and social justice.

29.Decentralization is perceived as a pre-

condition for preservation of the basic values

of a free society. Republicanism which is the

`sine qua non' of this amendment is compatible

both with democratic socialism and radical

liberalism. Republicanism presupposes that laws

should be made by active citizens working in

15 concert. Price of freedom is not merely eternal

vigilance but perpetual and creative citizen's

activity.

30. This 73rd Amendment is a very powerful `tool of

social engineering' and has unleashed tremendous

potential of social transformation to bring

about a sea-change in the age-old, oppressive,

anti human and status quoist traditions of

Indian society. It may be true that this

amendment will not see a quantum jump but it

will certainly initiate a thaw and pioneer a

major change, may be in a painfully slow

process.

31. In order to understand the purport of the 73rd

Constitutional amendment in Part IX of the

Constitution, it is important to keep in view

the Statements of Objects and Reasons behind the

amendment. Excerpts from the same are set out:-

"THE CONSTITUTION(SEVENTY-THIRD AMENDMENT) ACT, 1992

16 Statement of Objects and Reasons appended to the Constitution (Seventy- second Amendment) Bill, 1991 which was enacted as the Constitution (Seventy-third Amendment) Act, 1992

Though the Panchayati 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 suppressions, insufficient representation of weaker sections like Scheduled Castes, Scheduled Tribes and women, inadequate devolution of powers and lack of financial resources.

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 forty years and in view of the short-comings which have been observed, it is considered that there is an imperative need to enshrine the Constitution certain basic and essential features of Panchayati Raj Institutions to impart certainty, continuity and strength to them."

17 32. What was in a nebulous state as one of Directive

Principles under Article 40, through 73rd

Constitutional Amendment metamorphosed to a

distinct part of Constitutional dispensation

with detailed provision for functioning of

Panchayat. The main purpose behind this is to

ensure democratic decentralization on the

Gandhian principle of participatory democracy so

that the Panchayat may become viable and

responsive people's bodies as an institution of

governance and thus it may acquire the necessary

status and function with dignity by inspiring

respect of common man.

33. In our judgment, this 73rd Amendment of the

Constitution was introduced for strengthening

the perambular vision of democratic

republicanism which is inherent in the

constitutional framework.

34. On a close perusal of the 73rd Constitutional

Amendment, one would be tempted to say that the

18 vision of Surendra Nath Banerjee, expressed

almost a century ago, about our local self-

Government has been revived.

35.From the proceeding of the Council of Governor

General of India (April 1913 to March 1914) we

find, Surendra Nath articulated:

"..the village is the fundamental, the indestructible unit of the Indian Social system, which has survived the over-throw of dynasties and the fall of empires. Sir, our village organizations carry the mind back to the dawn of human civilization and the early beginning of local self-government. They are dead now, but the instinct is there, deep down in the national consciousness, and under the fostering care of a wise and beneficent government, such as we now have it may be revivified into a living flame. Our system of local self- government has been built up from the top. That, perhaps, was inevitable under the circumstances. But the time has now come when it should be strengthened from below and the foundations laid well and deep....."

36. Unfortunately that time came very late and as

late as 1993 when 73rd Amendment of the

Constitution was brought about.

19

37.India has been and continues to be a

predominantly rural country. There are 5 lakh

78 thousand 430 villages in which 74% of her

people, which is about 750 million, live. Out

of this village population 48% live below

poverty line. Though our Constitution professes

to be a democratic republic but our rural set up

is largely feudal. The agrarian relationship of

the majority of the people is very weak and

helpless compared with few land holding families

which control economic interest of larger

sections of village society. Unfortunately our

independence has not been able to change our

political priorities and dynastic democratic

pattern is the order of the day.

38.The vast majority of the rural masses still

have to obey decisions taken by few people

living in metropolitan centers representing an

alien culture and ethos.

20

39. Here it may not be out of context to remember

what was said by Bhagat Singh and Batukeshwar

Dutta on 6th June, 1929 in their joint statement

in connection with the criminal trial they faced

in Crown vs. Bhagat Singh. In paragraphs 7 and

8 of their joint statement, the great martyr

Bhagat Singh said:

"7. I, Bhagat Singh was asked in the lower Court as to what we meant by the word `Revolution'. In answer to that question, I would say that Revolution does not necessarily involve a sanguinery strife, nor is there any place in it for individual vendetta. It is not the cult of the bomb and the pistol. By Revolution we mean that the present order of things which is based on manifest injustice must change. The producers or the labourers, inspite of being the most necessary element of society are robbed by their exploiters of the fruits of their labour and deprived of their elementary right. On the one hand the peasant who grows corn for all starves with his family, the weaver who supplies world markets with textile fabrics cannot find enough to cover his own and his children's bodies; the masons, the smith and the carpenters who rear magnificent palaces live and perish in slums; and on the other the capitalists exploiters, the parasites of society squander millions on their whims. These terrible inequalities and forced disparity of chances are heading towards chaos. This state of affairs cannot last; and it is obvious that the present order of Society is merry-making on the brink of a volcano and the innocent children of the

21 Exploiters no less than millions of the exploited are walking on the edge of a dangerous precipice. The whole edifice of this civilization, if not saved in time, shall crumble. A radical change, therefore is necessary; and it is the duty of those who realize this to reorganize society on the socialistic basis. Unless this is done and the exploitation of man by man and of nations by nations, which goes marquerading as Imperialism, is brought to end, the sufferings and carnage with which humanity is threatened today cannot be prevented and all talks of ending wars and ushering in an era of universal peace is undisguised hypocricy. By revolution we mean the ultimate establishment of an order of society which may not be threatened by such a breakdown; and in which the sovereignty of the Proletariat should be recognized; and as the result of which a world-federation should redeem humanity from the bondage of capitalism and the misery of imperial wars.

8. xxx xxxx Revolution is the inalienable right of mankind. Freedom is the imprescriptable birth right of all. The labourer is the real sustainers of society. The Soverignty of the people is the ultimate destiny of the workers. For these ideals, and for these faith, we shall welcome any suffering to which we may be condemned. To the altar of this revolution we have brought our youth as incense; for no sacrifice is too great for so magnificent a cause.

We are content; we await the advent of the Revolution `Long live the Revolution'."

40.The ideas of Bhagat Singh, even if not wholly

but substantially have been incorporated in the

22 preambular vision of our Constitution. But the

dream for which he sacrifised his life has not

been fulfilled and the relevance of what he said

can hardly be ignored. The ground realities, if

at all, changed only marginally.

41.Let these momentous words of a convict in

British India form part of the judicial record

in the last Court of our Democratic Republic,

the largest democracy in the world.

42. The 73rd Amendment of the Constitution, this

Court thinks, is a forward step to bring about

the radical changes in our social structure

which inspired the struggle of Bhagat Singh, the

great martyr.

43. When faced with a challenge to interpret such

laws, Courts have to discharge a duty. The

Judge cannot act like a phonographic recorder

but he must act as an interpreter of the social

context articulated in the legal text. The

23 Judge must be, in the words of Justice Krishna

Iyer, "animated by a goal oriented approach"

because the judiciary is not a "mere umpire, as

some assume, but an active catalyst in the

Constitutional scheme" [See Authorized Officer,

Thanjavur and another vs. S. Naganatha Ayyar and

others, (1979) 3 SCC 466].

44. The Panchayati Raj Institutions structured under

the said amendment are meant to initiate changes

so that the rural feudal oligarchy lose their

ascendancy in village affairs and the voiceless

masses, who have been rather amorphous, may

realize their growing strength. Unfortunately,

effect of these changes by way of Constitutional

Amendment has not been fully realized in the

semi-feudal set up of Indian politics in which

still voice of reason is drowned in an uneven

conflict with the mythology of individual

infallibility and omniscience. Despite high

ideals of Constitutional philosophy, rationality

in our polity is still subordinated to political

24 exhibitionism, intellectual timidity and petty

manipulation. The 73rd Amendment of the

Constitution is addressed to remedy these evils.

45. The changes introduced by the 73rd Amendment of

the Constitution have given Panchayati Raj

Institutions a Constitutional status as a result

of which it has become permanent in the Indian

Political system as a third Government.

46.On a careful reading of this amendment, it

appears that under Article 243B of the

Constitution, it has been mandated that there

shall be Panchayat at the village, intermediate

and district levels in accordance with the

provisions of Part IX of the Constitution.

47.Article 243C provides for composition of

Panchayat which contemplated the post of

Chairperson.

25

48.Article 243D provides for reservation of seats

and 243E provides for duration of Panchayat.

Article 243F enumerates the grounds of

disqualification of membership of the Panchayat

and 243G prescribes the powers, authority and

responsibilities of Panchayat. There are

several other provisions relating to powers of

the Panchayat to impose taxes and for

constitution of Finance Commission in order to

review financial position of the Panchayat. The

accounts of the Panchayat are also to be audited

as per Constitutional mandate under Article

243J. There are detailed provisions for

elections of Panchayat under Article 243K. Article 243O imposes the bar to interference by

Courts in electoral matters of the Panchayat.

49.In this connection particular reference may be

made to the provision of Article 243G of the

Constitution which is set out below:

"243G. Powers, authority and responsibilities of Panchayat. - Subject to

26 the provisions of this Constitution the Legislature of a State may, by law, endow the Panchayats with such powers and authority and may be necessary to enable them to function as institutions of self- government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats, at the appropriate level, subject to such conditions as may be specified therein, with respect to-

(a) the preparation of plans for economic development and social justice;

(b) the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule."

50. The said article is to be read in conjunction

with 11th Schedule of the Constitution which came

with the said 73rd Amendment.

51. To alter the planning process of the country a

statutory planning body like District Planning

Committee has been created. To ensure regular

election to these bodies Election Commission has

been created. In order to ensure people's

participation Gram Sabha, a body at the grass

27 root level, has been constitutionally planned.

A perusal of the Constitution provision in the

73rd Amendment would show that the success of the

system does not depend merely on the power which

has been conferred but on the responsibility

which has been bestowed on the people.

52. Under the Constitutional scheme introduced by

the 73rd Amendment Government State is no longer

a service provider but is a felicitator for the

people to initiate development on the basis of

equity and social justice and for the success of

the system people has to be sensitized about

their role and responsibility in the system.

53.Thus the composition of the Panchayat, its

function, its election and various other aspects

of its administration are now provided in great

detail under the Constitution with provisions

enabling the State Legislature to enact laws to

implement the Constitutional mandate. Thus

formation of Panchayat and its functioning is

28 now a vital part of the Constitutional scheme

under Part IX of the Constitution.

54.Obviously such a system can only thrive on the

confidence of the people on those who comprise

the system.

55.In the background of these provisions, learned

counsel for the appellants argued that the

provision of no-confidence, being not in Part IX

of the Constitution is contrary to the

Constitutional scheme of things and would run

contrary to the avowed purpose of Constitutional

amendment which is meant to lend stability and

dignity to Panchayati Institutions. It was

further argued that reducing the period from

`two years' to `one year' before a no-confidence

motion can be brought further unsettles the

running of the Panchayat. It was further urged

that under the impugned amendment that such a

no-confidence motion can be carried on the basis

29 of a simple majority instead of two thirds

majority dilutes the concept of stability.

56.This Court is not at all persuaded to accept

this argument on various grounds discussed

below.

57.A Constitution is not to give all details of

the provisions contemplated under the scheme of

amendment. In the said amendment, under various

articles, like articles 243A, 243C(1), (5),

243D(4), 243X(6), 243F(1) (6), 243G, 243H, 243I

(2), 243J, 243(K) (2), (4) of the Constitution,

the legislature of the State has been empowered

to make law to implement the Constitutional

provisions.

58.Particularly Article 243C(5), which provides

for election of Chairperson, specially provides:

"243C Composition of Panchayats - xxx xxx

(5) The Chairperson of-

30 (a) a Panchayat at the village level shall be elected in such manner as the Legislature of a State may, by law, provide; and

(b) a Panchayat at the intermediate level or district level, shall be elected by, and from amongst, the elected members thereof.

59. Therefore, the argument that the provision of

no-confidence motion against the Chairman, being

not in the Constitution, cannot be provided in

the statute, is wholly unacceptable when the

Constitution specifically enables the State

Legislature to provide the details of election

of the Chairperson.

60.It may be mentioned that the statutory

provision of no-confidence motion against the

Chairperson is a pre-Constitutional provision

and was there in Section 15 of the 1961 Act.

61.In this context, Article 243N of the

Constitution in Part IX is relevant and set out

below:

31

"243N. Continuance of existing laws and Panchayats. - Notwithstanding anything in this Part, any provision of any law relating to Panchayats in force in a Stale immediately before commencement of the Constitution (Seventy-third Amendment) Act, 1992, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement whichever is earlier:

Provided that all the Panchayats existing immediately before such commencement shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of that State or, in the case of a State having a Legislative Council, by each House of the Legislature of that State.

62.It is clear that the provision for no-

confidence motion against the Chairperson was

never repealed by any competent legislature as

being inconsistent with any of the provisions of

Part IX. On the other hand by subsequent

statutory provisions the said provision of no-

Confidence has been confirmed with some

ancillary changes but the essence of the no-

32 confidence provision was continued. This Court

is clearly of the opinion that the provision of

no-confidence is not inconsistent with Part IX

of the Constitution.

63.The provision of Article 243N of the

Constitution makes it clear if the Panchayat

laws, in force in a State prior to

Constitutional Amendment, contain provisions

which are inconsistent with Part IX, two

consequences will follow:

(1) Those provisions will continue until

amended or repealed by competent

legislature or authority, and

(2) Those provisions will continue until one

year from commencement of the Constitution

amendment, if not repealed earlier.

64.Immediately after the Constitution amendment by

way of Part IX, came Uttar Pradesh Panchayat

Laws (Amendment) Act, 1994. This was enacted on

33 22.4.1994 to give effect to the provisions of

Part IX of the Constitution. But the pre-

existing provision of the no-confidence was not

repealed. Rather it was confirmed with minor

changes in subsequent amendment Acts of 1998

being UP Act 20 of 1998 and which was further

amended in the impugned amendment Act of 2007

being UP Act 44 of 2007.

65.The appellants have not challenged U.P. Act 20

of 1998 by which Section 15 of 1961 Act was

continued in amended version.

66.Therefore, the continuance of no-confidence

provision has not been challenged - what has

been challenged is the reduction of the period

from `two years' to `one year' and the

requirement majority from "not less than two-

thirds" to "more than half". It is thus clear

that the statutory provision of no-confidence is

not contrary to Part IX of the Constitution.

34

67.Apart from the aforesaid reasons, the arguments

by appellants cannot be accepted in view of a

very well known Constitutional Doctrine, namely,

the Constitutional doctrine of silence. Michael

Folley in his treaties on `The Silence of

Constitutions' (Routledge, London and New York)

has argued that in a constitution "abeyances are

valuable, therefore, not in spite of their

obscurity but because of it. They are

significant for the attitudes and approaches to

the Constitution that they evoke, rather than

the content and substance of their structures."

(Page 10) The learned author elaborated this

concept further by saying "Despite the absence

of any documentary or material form, these

abeyances are real and are an integral part of

any Constitution. What remains unwritten and

intermediate can be just as much responsible for

the operational character and restraining

quality of a Constitution as its more tangible

and codified components". (Page 82)

35

68.Many issues in our constitutional jurisprudence

evolved out of this doctrine of silence. The

basic structure doctrine vis-`-vis Article 368

of the Constitution emerged out of this concept

of silence in the Constitution.

69. A Constitution which professes to be democratic

and republican in character and which brings

about a revolutionary change by 73rd

Constitutional amendment by making detailed

provision for democratic decentralization and

self Government on the principle of grass root

democracy cannot be interpreted to exclude the

provision of no-confidence motion in the respect

of the office of the Chairperson of the

Panchayat just because of its silence on that

aspect.

70. As noted above the provision of no-confidence

was a pre-73rd Amendment statutory provision and

that was continued even after the 73rd Amendment

in keeping with mandate of Article 243N. This

36 continuance of the no-confidence provision, as

noted above was not challenged by the

appellants. This aspect has been noted by the

High Court in the impugned judgment. The High

Court noted:

"The original Act of the 1961 provides block period of 12 months for initiation of no-confidence motion in reference to Kshettra Samiti/Panchayat, which was amended in the year 1965 by U.P. Act No. 16 of 1965 and the block period was enhanced to `two years' from '12 months'. Again in the year 1990 the block period was reduced as the words `two years' was substituted by words `one year' by U.P. Act No. 20 of 1990. In the year 1998 U.P. Act No. 20 of 1998 again amended Section 15 and the block period was again enhanced to `two years'. In the year 2007 again by U.P. Act No. 44 of 2007 the term `two years' was substituted by `one year' by virtue of which the block period of `two years' was reduced to `one year'.

71.The amended provision for the required majority

for no-confidence motion also has been noted in

impugned judgment of the High Court.

"The majority as provided in Section 15(11) of the Original Act of 1961 for passing of no- confidence motion was `more than half of the total number of members of Kshettra Samiti'.

37 In the year 1994 by U.P. Act No. 1994 the term `member' in Section 15(11) was substituted by `elected members' hence in 1994 also, the motion was to be carried through with the support of more than half of the total number of elected members of Kshettra Panchayat.

In the year 1998 the required majority was enhanced to `two-third' from more than half as the word `more than half' in Section 15(11) was substituted by the word `not less than two-third' by U.P. Act No. 20 of 1998.

Lastly, in the year 2007 again the provision relating to the majority for moving no-confidence motion was amended by U.P. Act No. 44 of 2007 and the words `not less than two-third' was substituted by the words `more than half' in Section 15(11)."

72.The argument that as a result of the impugned

amendment stability and dignity of the

Panchayati Raj Institution has been undermined

is also not well founded. As a result of no-

confidence motion the Chairperson of a Panchayat

loses his position as a Chairperson but he

remains a member, and the continuance of

Panchayat as an institution is not affected in

the least.

73.Going by the aforesaid tests, as we must, this

Court does not find any lack of legislative

38 competence on the part of the State Legislature

in enacting the impugned amendment Act.

74.The learned counsel for the appellant cited

several judgments in support of the contention

that the impugned amendment in relation to the

provisions for no-confidence are unreasonable

and ultra vires the provisions of Part IX.

75.It has already been pointed out that the object

and the reasons of Part IX are to lend status

and dignity to Panchayati Raj Institutions and

to impart certainty, continuity and strength to

them.

76.The learned counsel for the appellant

unfortunately, in his argument, missed the

distinction between an individual and an

institution. If a no-confidence motion is passed

against the chairperson of a Panchayat, he/she

ceases to be a Chairperson, but continues to be

a member of the Panchayat and the Panchayat

39 continues with a newly elected Chairperson.

Therefore, there is no institutional set back or

impediment to the continuity or stability of the

Panchayati Raj Institution.

77. These institutions must run on democratic

principles. In democracy all persons heading

public bodies can continue provided they enjoy

the confidence of the persons who comprise such

bodies. This is the essence of democratic

republicanism. This explains why this provision

of no-confidence motion was there in the Act of

1961 even prior to the 73rd Constitution

amendment and has been continued even

thereafter. Similar provisions are there in

different States in India.

78.Section 211 of the Tamil Nadu Panchayats Act,

1994 contains a provision for motion of no-

confidence in respect of Vice-President of

panchayat and Section 212 contains a provision

for motion of non confidence in respect of

40 chairman or vice-chairman of panchayat union

council.

79.In the Bombay Village Panchayats Act, 1958

under Section 35 similar provision for motion of

no-confidence is to be found.

80.In West Bengal Panchayat Act, 1973 under

Section 12 there is a provision for the removal

of Pradhan and Up-Pradhan if he has lost the

confidence of the members of the Gram Panchayat.

81.In M.P. Panchayat Raj Avam Gram Swaraj

Adhiniyam, 1993, Section 21 provides for No-

confidence motion against Sarpanch and Up-

Sarpanch.

82.There is a similar provision of No-confidence

motion against Sarpanch under Section 19 of the

Punjab Panchayati Raj Act, 1994 as also under

Section 157 the Kerala Panchayat Raj Act, 1994.

41

83.The Karnataka Panchayat Raj Act, 1993 Section

49 has similar provision of a motion of no-

confidence against Adhyaksha or Upadhyaksha of

Gram Panchayat.

84.Such a provision is wholly compatible and

consistent with the rejuvenated Panchayat

contemplated in Part IX of the Constitution and

is not at all inconsistent with the same.

85.Democracy demands accountability and

transparency in the activities of the

Chairperson especially in view of the important

functions entrusted with the Chairperson in the

running of Panchayati Raj Institutions. Such

duties can be discharged by the Chairperson only

if he/she enjoys the continuous confidence of

the majority members in the Panchayat. So any

statutory provision to demonstrate that the

Chairperson has lost the confidence of the

majority is conducive to public interest and

adds strength to such bodies of self Governance.

42 Such a statutory provision cannot be called

either unreasonable or ultra vires Part IX of

the Constitution.

86.Any head of a democratic institution must be

prepared to face the test of confidence.

Neither the democratically elected Prime

Minister of the Country nor the Chief Minister

of a State is immune from such a test of

confidence under the Rules of Procedure framed

under Articles 118 and 208 of the Constitution.

Both the Prime Minister of India and Chief

Ministers of several States heading the Council

of Ministers at the Centre and in several States

respectively have to adhere to the principles of

collective responsibilities to their respective

houses in accordance with Articles 75(3) and

164(2) of the Constitution.

87.The learned counsel for the appellant therefore

compared the position of the Chairperson of a

Panchayat with that of the President of India

43 and argued that both are elected for five years

and President's continuance in office is not

subject to any vote of no-confidence. The post

of Chairperson should have the same immunity.

88.This is an argument of desperation and has been

advanced, with respect, without any regard to

the vast difference in Constitutional status and

position between the two posts. The two posts

are not comparable at all by any standards.

Even the President of India is subject to

impeachment proceedings under Article 61 of the

Constitution. No one is an `imperium in

imperio' in our Constitutional set up.

89. In this matter various judgments have been cited

by the learned counsel for the appellant. Of

those judgments only the judgment in Mohan Lal

Tripathi vs. District Magistrate, Rai Bareilly &

others [1992 (4) SCC 80] is on the question of

the no-confidence motion against President of

the municipality elected directly by the

44 electorate. No-confidence motion was passed by

the board against the said President and not by

the electorate. That was challenged. This

Court repelled the challenge and upheld the no-

confidence motion holding that the recall by the

Board amounts to recall by the electorate

itself.

90. Upholding the aforesaid provision of no-

confidence which is virtually a power of recall,

this Court in Mohan Lal Tripathi (supra) held

that the recall of the elected representative,

so long it is in accordance with law, cannot be

assailed on abstract laws of democracy. (Para 2,

page 86 of the report)

91. Upholding the concept of vote of no-confidence

in Mohan Lal Tripathi (supra) this Court further

elaborated the concept as follows:

"...Vote of no-confidence against elected representative is direct check flowing from accountability. Today democracy is not a rule of 'Poor' as said by Aristotle or of 'Masses'

45 as opposed to 'Classes' but by the majority elected from out of the people on basis of broad franchise. Recall of elected representative is advancement of political democracy ensuring true, fair, honest and just representation of the electorate. Therefore, a provision in a statute for recall of an elected representative has to be tested not on general or vague notions but on practical possibility and electoral feasibility of entrusting the power of recall to a body which is representive in character and is capable of projecting views of the electorate. Even though there was no provision in the Act initially for recall of a President it came to be introduced in 1926 and since then it has continued and the power always vested in the Board irrespective of whether the President was elected by the electorate or Board. Rationale for it is apparent from the provisions of the Act..."

92. In Ram Beti vs. District Panchayat Raj Adhikari

& others [1998 (1) SCC 680] this Court has

upheld the provisions of Section 14 of U.P.

Panchayat Raj Act, 1947 as amended by U.P. Act

No. 9 of 1994 which empowers members of the Gram

Panchayat to remove the Pradhan of Gram Sabha by

vote of no-confidence. This Court held that

such a provision is not unconstitutional nor

does it infringe the principle of democracy or

provisions of Article 14. This decision was

46 rendered in 1997, which is after the

incorporation of Part IX of the Constitution.

93. In fact, in Ram Beti (supra), this Court

considered the impact of 73rd Amendment and also

took into consideration the provisions of

Article 243N introduced by 73rd Amendment. The

ratio in Mohan Lal Tripathi (supra) was also

affirmed in Ram Beti (supra).

94. In the background of this admitted position, the

argument that 2007 Amendment Act lacks

legislative competence has no merit. The

relevant legislative entry in respect of

Panchayat is in Entry 5, list II of the 7th

Schedule. The said entry is:

"5. Local Government, that is to say, the constitution and powers of municipal, corporations, improvement trusts, district boards mining settlement authorities and other local authorities for the purpose of local self Government or village administration."

47 95. It is well known that legislative entry is

generic in nature and virtually constitutes the

legislative field and has to be very broadly

construed. These entries demarcate `areas',

`fields' of legislation within which the

respective laws are to operate and do not merely

confer legislative power as much. The words in

the entry should be held to extend to all

ancillary and subsidiary matters which can be

reasonably said to be encompassed by it. [See

Hans Muller of Nurenburg vs. Superintendent,

Presidency Jail, Calcutta and others, AIR 1955

SC 367; Navinchandra Mafatlal, Bombay vs.

Commissioner of Income Tax, Bombay City, AIR

1955 SC 58, and also the decision of this Court

rendered in Jilubhai Nanbhai Khachar etc. etc.

vs. State of Gujarat and another reported in AIR

1995 SC 142 at 148].

96. About interpretation of entries in the 7th

Schedule reliance was placed by the learned

counsel for the appellant on the judgment of

48 Constitution Bench of this court in Diamond

Sugar Mills Limited and another vs. The State of

Uttar Pradesh and another reported in AIR 1961

SC 652. In that case the Court considered the

meaning of the word `local area' in Entry 52 of

the State List in the 7th Schedule. The

Constitution Bench of this Court held that in

considering the meaning of the words in the 7th

Schedule, the Court should bear in mind that the

entries of such schedule should be liberally

interpreted as they confer rights of

legislation. But at the same time the Court

should be careful enough not to extend the

meaning of the words beyond their reasonable

connotation in an anxiety to preserve the power

of the legislature. On the basis of the above

interpretation this Court held that `premises of

a factory' is not a `local area'.

97. The said decision has no application in the

present case in as much as Entry 5 of List II of

the 7th Schedule is wide enough to authorize

49 legislation of no-confidence against the

Chairperson of the Panchayat.

98. The next judgment cited on this point was

rendered in the case of State of Tamil Nadu vs.

M/s. Payarelal Malhotra and Others [1976 (1) SCC

834].

99.In that decision meaning of the expression

`that is to say' was discussed with reference to

Stroud's Judicial Dictionary.

100.Relying on Stroud, this Court held the

expression `that is to say' is resorted to for

clarifying and fixing the meaning of what is

defined. There is no difficulty about applying

those principles to the facts of this case. In

Payarelal (supra), this Court was construing the

relevant entry in the context of single point

Sales Tax subject to special conditions when

imposed on separate categories of specified

goods. Therefore, there is vast situational

50 difference between the case in Payarelal (supra)

and the present one.

101.The last decision cited on this point was

rendered in the case of Commissioner of Sales

Tax M.P. vs. Popular Trading Company, Ujjain

[2000 (5) SCC 511]. This was also a case

relating to Sales Tax and the expression `that

is to say' has been used. This Court in

explaining the purport of `that is to say'

referred to the ratio in Payarelal (supra). Even

if we accept the said ratio in construing the

ambit of Entry 5 of List II in the 7th Schedule,

this Court finds that the impugned provision of

no-confidence against the Chairperson of the

Panchayat is very much encompassed within Entry

5 if we read the entry liberally and in

accordance with well settled principles of

reading legislative entries in several lists of

the 7th Schedule. The decision on Popular

Trading (supra) does not at all advance the case

of the appellant.

51

102.Learned counsel for the State of U.P. cited

some decisions to point out how the Court should

consider the challenge to the constitutional

validity of a Statute. Some of the decisions

cited by the learned counsel are quite helpful

and are considered by this Court.

103.In the case of State of Bihar & Ors. vs. Bihar

Distillery Limited - JT 1996 (10) S.C. 854, this

Court in paragraph 18 at page Nos. 865-866 of

the report laid down certain principles on how

to judge the constitutionality of an enactment.

This Court held that in this exercise the Court

should (a) try to sustain validity of the

impugned law to the extent possible. It can

strike down the enactment only when it is

impossible to sustain it; (b) the Court should

not approach the enactment with a view to pick

holes or to search for defects of drafting or

for the language employed; (c) the Court should

consider that the Act made by the legislature

52 represents the will of the people and that

cannot be lightly interfered with; (d) the

Court should strike down the Act only when the

unconstitutionality is plainly and clearly

established; (e) the Court must recognize the

fundamental nature and importance of legislative

process and accord due regard and deference to

it. This Court abstracted those principles from

various judgments of this Court.

104.In State of Bihar (supra), this Court also

considered the observations of Lord Denning in

Seaford Court Estates Ltd. vs. Asher - [1949 (2)

K.B. 481] and highlighted that the job of a

judge in construing a statute must proceed on

the constructive task of finding the intention

of Parliament and this must be done (a) not only

from the language of the statute but also (b)

upon consideration of the social conditions

which gave rise to it (c) and also of the

mischief to remedy which the statute was passed

and if necessary (d) the judge must supplement

53 the written word so as to give `force and life'

to the intention of the legislature.

105.According to Lord Denning these are the

principles laid down in Heydon's case and is

considered one of the safest guides today. This

Court also accepted those principles. (See para

21 at page 867 of the report).

106.Reliance was also placed on another decision of

this Court in Dharam Dutt and Ors. vs. Union of

India & Ors. - (2004) 1 SCC 712. This judgment

is relevant in order to deal with the argument

of the learned counsel for the appellants that

in reducing the period for bringing the no-

confidence motion from `two years' to `one year'

and then in reducing the required majority from

2/3rd to simple majority, the legislature was

guided by the sinister motive of some

influential Ministers to get rid of a local

leader who, as a Pradhan of Panchayat, may have

54 become very powerful and competitor of the

Minister in the State.

107.In Dharam Dutt (supra) this Court held that if

the legislature is competent to pass a

particular law, the motive which impelled it to

act are really irrelevant. If the legislature

has competence, the question of motive does not

arise at all and any inquiry into the motive

which persuaded Parliament into passing the Act

would be of no use at all. (See page 713 of the

report).

108.Reliance was also placed on the Constitution

Bench judgment of this Court in State of Gujarat

vs. Mirzapur Moti Kureshi Kassab Jamat and Ors.

- (2005) 8 SCC 534. Chief Justice Lahoti

speaking for the Bench laid down in para 37,

page 562 of the report that the legislature is

in the best position to understand and

appreciate the needs of the people as enjoined

in the Constitution. The Court will interfere in

55 legislative process only when the statute is

clearly violative of the right conferred on a

citizen under Part III or when the Act is beyond

the legislative competence of the legislature.

Of course the Court must always recognize the

presumption in favour of the constitutionality

of the statutes and the onus to prove its

invalidity lies heavily on the party which

assails it.

109.Chief Justice Lahoti also laid down several

parameters in considering the constitutional

validity of a statute at page No.562-563 of the

report. One of the parameters which is relevant

in this case is however important the right of

citizen or an individual may be it has to yield

to the larger interests of the country or the

community.

110.Considering all these aspects, this Court sees

no reason to take a view different from the one

taken by the Hon'ble High Court.

56

111.For the reasons aforesaid this Court upholds

the Constitutional validity of the U.P.

Panchayat Laws (Amendment) Act, 2007 (U.P. Act

44 of 2007) and the appeals are dismissed. The

judgment of the Hon'ble High Court is upheld and

affirmed. All interim orders are vacated. There

shall be no order as to costs.

.....................J. (G.S. SINGHVI)

.....................J. (ASOK KUMAR GANGULY) New Delhi May 4, 2010

57 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s).4135-4152 OF 2010 (arising out of SLP(C)No(s).3802-3819/2009)

BHANUMATI ETC. ETC. ...Appellant(s)

VERSUS

STATE OF UTTAR PRADESH THROUGH ITS PRINCIPAL SECRETARY AND OTHERS ...Respondent(s)

WITH C.A. NO(s).4153 OF 2010 @ SLP(C) NO.4320 of 2009 C.A. NO(s).4154-4155 OF 2010 @ SLP(C) NO.4322-4323 of 2009 C.A. NO(s).4156-57 OF 2010 @ SLP(C) NO.4515-4516 of 2009 C.A. NO(s).4158 OF 2010 @ SLP(C) NO. 4517 of 2009 C.A. NO(s).4159-4164 OF 2010 @ SLP(C) NO.4554-4559 of 2009 C.A. NO(s).4165 OF 2010 @ SLP(C) NO. 4941 of 2009 C.A. NO(s).4166 OF 2010 @ SLP(C) NO. 4960 of 2009 C.A. NO(s).4167 OF 2010 @ SLP(C) NO. 4964 of 2009 C.A. NO(s).4168 OF 2010 @ SLP(C) NO. 5481 of 2009 C.A. NO(s).4169 OF 2010 @ SLP(C) NO. 5439 of 2009 C.A. NO(s).4170 OF 2010 @ SLP(C) NO. 5902 of 2009 C.A. NO(s).4171 OF 2010 @ SLP(C) NO. 9180 of 2009 C.A. NO(s).4172 OF 2010 @ SLP(C) NO. 9343 of 2009 C.A. NO(s).4173 OF 2010 @ SLP(C) NO. 9352 of 2009 C.A. NO(s).4174-75 OF 2010 @ SLP(C)NO. 7225-7226 of 2009 C.A. NO(s).4176 OF 2010 @ SLP(C) NO. 7651 of 2009 C.A. NO(s).4177 OF 2010 @ SLP(C) NO. 10069 of 2009 C.A. NO(s).4178 OF 2010 @ SLP(C) NO. 10543 of 2009

O R D E R

All applications for intervention/impleadment are allowed.

Leave granted.

Heard learned counsel for the parties at length.

58 2

After hearing the learned counsel for the

parties, we are of the view that the provisions of U.P.

Panchayat Laws Amendment Act, 2007 (U.P. Act No.44 of

2007) are constitutionally valid. We, therefore, affirm

the views taken by the learned Judges of the High Court.

Consequently, interim orders, if any, stand vacated.

The appeals are dismissed with no order as to

costs. The detailed order follows.

........................J. (G.S. SINGHVI)

........................J. (ASOK KUMAR GANGULY) NEW DELHI, May 04, 2010.

59