TMI Blog2010 (5) TMI 783X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Conferen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed 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 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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. 39. Here it may not be out of context to remember what was said by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... axes 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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- (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. 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso 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'. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ram 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. 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. Such a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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' 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 59 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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