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TMI Blog2004 (1) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 representing the petitioners, Sri S. Niranjan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso 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 such a way that whatever has been the power dist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess 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 executive, legi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd therefore, 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 experien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... X-A of 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 deleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitutionality 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 Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 96, 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 Proceeding in Memo No. 32254/Mdl.II/ 2002-1, dated 18-7-2002 and quash th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 membership. Likewise, Articles 243H to 243O deal with powers to impose ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 meaning of words without an acceptance of line of their growth. In State of A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k 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 Constitutional provisions and statutory construction reliance was placed on Navinchandra Mafatlal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lative 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 Legislature to legislate upon, the form in which the law is clothed would not save it from conde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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, there is no obscurity, there is no ambiguity and the intention of the Legislature is clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot 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 and sometimes may also appear to be in direct conflict with each other. Then, it is the duly of the Court to find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 of the new Act are so inconsistent with the old ones that the two cannot stand together. As has been observed by Crawford on Statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rlier 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 construction apply to the interpretation of our Constitution with greater force, because the Constitution is a living, integrated organism, having a soul and consciousn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yat 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 pertinent to note that the provisions of the Act are challenged on the ground that they are in contravention of Part IX of the Constitution only and not Part III of the Constitution. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Schedule. "Similar amendments should be made in Article 243W relating to the powers, authority and responsibilities of Municipalities, etc. Reliance also was placed on certain portions of Lok Sabha and Rajya Sabha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: Sir, as we know, the idea of the Bills is that there should be participation of people at the grass-root level in the development and in the administrative processes of the country. The idea of 'Panchayats' or 'Panch' is not a new idea. We know that the word 'Panch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Electric Supply Co. Ltd. v. State of Assam, AIR 1990 SC 123, it was held that the Court may tear the veil if necessary to examine the allegation of colourable legislation or abuse of power. 23. Officialisation or bureaucratization of the Panchayat Raj In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Constitution Bench of this Court in C.A. Rajendran v. Union of India (1968) IILLJ 407 SC held that Article 16(4) conferred a discretion and did not create any Constitutional duty or obligation. In fact, in that case, a mandamus was sought to direct the Government of India to provide for reser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 having left to the unfettered judgment of the Central Government the question as regards the time for bringing the provisions of the 44th Amendment into force, it is not for the Court to compel the Government to do that which, according to the mandate of the Parliament, lies in its discretion to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscarded 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 democratic spirit, the elected representatives must have the major sway and in the working of the system, the implementation may be left to the officials. It is also true that in the administration of Panchayat Raj Institutions, necessary control also may be essential and it is for the Legislature to dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 a hierarchy of state officials hobbling their locomotion. Their exercises are strictly overseen by the State Government, their resources are precariously dependent on the grace of the latter, and their functions are fulfilled through a Chief Executive appointed by the State Government. Floor-level democracy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. An argument was advanced that in the light of Article 40, if Article 243G is not mandatory, there is no necessity of introducing this Article in Part IX inasmuch as if it is to be interpreted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cussions 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 executive power for the purpose of carrying out the provisions of this Act and be directly responsible for the due fulfillment of the purpose thereof. Section 43 deals with Administration Report. Article 243H(a) of the Constitution reads: The Legislature of a State may, by law, authorize a Panchayat to levy, collect and appropriate such taxes, duties, tolls and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 with the previous sanction of the Government. Section 71 of the Act reads: Special tax leviable by a Gram Panchayat :--Subject to such rules as may be prescribed, a Gram Panchayat shall levy a special tax on houses at such rates as may be prescribed, to provide for expenses connected with the construction, maintenance; repair, extension and improvement of water or drainage works or the lighting of the public streets and public places, and other similar works." Section 137 of the Act r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 supervision over the Gram Panchayats in the Mandal as may be prescribed. 29. The powers and functions of the Mandal Parishad Development Officers are dealt with in G.O. Ms. No. 489, PR&RD (Estt.VII) Department, dated 3-12-1996, Section 174 of the Act deals with Budget of Mandal Parishad. G.O. Ms. No. 15 deals with relevant rules. Section 186of the Act deals with appointment of Chief Executive Authority and his powers and functions. Section 186(4)(d) and (j) read: Section 186(4)(d): Subject to the provisions of this Act, and the rules made thereunder, the Chief Executive Officer shall be responsible for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 Constitution reads: A person shall be disqualified for being chosen as, and for being, a member of a Panchayat if he is so disqualified by or under any law made by the Legislature of the State. Section 199 of the Act deals with the Budget of the Zilla Parishad. G.O. Ms. No. 15 deals with rules prescribing the preparation of Budget of Mandal Parishads and Zilla Parishads in the Districts of Andhra Pradesh. Sub-sections (1) and (2) of Section 199 of the Act read: Sub-section (1): The Chief Executive Officer shall in each year, frame and place before the prescribed date, a budget showing the probable receipts and expenditure during the following year, and the Zilla Parishad sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Andhra Pradesh, 2002 (4) ALD 84 (DB), a Division Bench of this Court held: According to the petitioner, the G.O. is violative of Article 243ZE of the Constitution of India and also against the protection and enhancement of the environment and by virtue of the Article 243-ZE and ZF of the Constitution, it is only a Metropolitan Planning Committee which shall be entitled to prepare a draft development plan for the metropolitan area as a whole or modify, revise or alter any existing master plan. The argument that by virtue of Article 243-ZE and 243-ZF of the Constitution, the making or amending of development plans for the metropolitan area is confined to the Metropolitan Planning Committee and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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, 1979 CriLJ 773, Raghubir v. State of Haryana, 1981 CriLJ 1497, T.K.V.T.S.S. Medical and Educational Charitable Trust v. State of Tamilnadu, AIR 1996 SC 2384, Deepchand v. State of U.P. AIR 1959 SC 648, Premanath v. State of Jammu and Kashmir, AIR 1959 SC 749, Lingappa v. State of Maharashtra, [1985] 2 SCR 224, Kannan v. District Collector, AIR 1991 AP 43, State of U.P. v. Synthetics, 1993 (41) ECC 326, Srinivas Raghavender v. State of Karnataka, (1987) 2 SCC 692, Bar Council of U.P. v. State of U.P. [1973] 2 SCR 1073. 33. The excessive interference by bureaucrats and the non-participation or minimum participation by elected representatives of the local bodies is made the main ground of attack by the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... responding 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 Court laid down the guidelines in relation to sexual harassment of working women which would be binding and enforceable in law until suitable Legislation is enacted to occupy the field. The decision in State of A.P. v. National Thermal Power Corporation Limited, [2002] 3 SCR 278, had been relied upon for the proposition that the power to legislate is subject to the other provisions of the Constitution, inclusive of Articles 286, 301 and other entries of other Lists. In Arka Vasanth Rao v. Government of A.P. AIR 1995 AP 274 (DB), a Division Bench of this Court while deciding the aspect of applicability of the Act to schedule areas in the State had observed at paras 24 and 25: The learned Advocate-General has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hayat 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. The Chief Executive Officer/ Deputy Chief Executive Officer, shall be convenor. Rule 9: The following guidelines shall be adopted for transfers by the Committees: (i) No officer shall be retained at any one place beyond a period of (5) years. (ii) No officer shall be transferred from a place against his will when he is having only one year of service to retire, as far as possible. (iii) Mutual transfers shall be considered to the places other than their previous stations or respective native places. (iv) If the spouse of the officer is also a Government Employee, their transfers shall be considered to same places or neighbouring places as far as possible. (v) No employee shall be considered for transfer on mere alleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sible. 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 in the context of the Constitutional developments have been referred to a larger Bench. The impugned order was suspended by this Court in W.P. M.P. No. 16483/2002 dated 23-7-2002. 37. The stand taken by the Chairperson, District Level Committee, Zilla Parishad, Nalgonda, Nalgonda District is that transfers were effected in conformity with the Rules and Regulations and the petitioner refers to Sections 186, 193 of the Act and G.O. Ms. No. 603 Finance (W&M) Department, dated 23-5-2002 and G.O. Ms. No. 45 Panchayat Raj and Rural Development, dated 5-2-2000. It is stated that while process of effecting transfers was in progress, some candidates approached Hon'ble Ministers and got issued impugned proceedings dated 18-7-2002. The impugned proceeding reads: GOVERNMENT OF ANDHRA PRADESH PANCHAYAT RAJ AND RURAL DEVELOPMENT DEPARTMENT Memo. No. 32254/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer, 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 G.O. Ms. No. 603, Finance (W&M) Department, dated 23-5-2002 and the total transfers in each category shall not exceed 15% of the total number of posts in that category. (e) All the transfers shall be completed by 15-7-2002, since the G.O., is issued late, action is separately being initiated to extend the time. On this instructions would be issued separately. (f) The four year period with reference to G.O. Ms. No. 603, Finance (W&M) Department, dated 23-5-2002, would be with reference to stay at the station continuously irrespective of the cadre. (g) Expenditure incurred on transfers will be met within the budget allocated. 39. Government had examined the representatives of Nalgonda District unit allocation and found grave irregularities in transfer process and decided to maintain status quo ante and directed the Commissioner to conduct inquiry and Commissioner after inquiry submitted report dated 24-7-2002 holding that no objectivity w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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 sway and in the working of the system, the implementation may be left to the officials"; in the administration of the Panchayat Raj Institutions necessary control is essential and it is for the Legislature to decide by expressing its will to legislation or subordinate legislation to what extent such control should be and that in the working of the system the State Government may have to take necessary steps to improve the system and in doing so if it is felt that the excessive control due to official powers or participation vis-a-vis elected representatives are to be rectified, it is within the domain and discretion of the Legislature and this Court cannot enter upon that sphere while exercising powers under Article 226. My learned Brother has further held that 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and assistance rendered by the learned Counsel who appeared in the case - the learned Attorney General for India, the learned Additional Solicitor General for India, the learned Additional Advocate General for the State, Sri S. Ramchandra Rao, learned Senior Counsel for the petitioners and Sri S. Niranjan Reddy, learned Counsel for the intervenors, illumined the debate with their brilliance, scholarship, industry and precision. 46. The Ranga Reddy District Sarpanches' Association represented by its President and Convener, the Convener and President of A.P. State Zilla Parishad Chairmen's Forum, the Convener, State Mandal Parishad Presidents' Association, Prakasam Sarpanches' Association, Ongole, 7 Chair-persons of Zilla Parishads in the State, 23 Presidents of Mandal Parishads and 22 Sarpanches of Gram Panchayats -56 petitioners in all have filed W.P. No. 12348 of 2002 for a-- writ order or direction in the nature of a wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner 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 that post Seventy-Third Constitution amendment; the Panchayat Bodies constitute the 3rd tier of the federal system of governance in India. The State action (by statutory and other instruments) denying powers, authority and responsibility to the Panchayat Bodies, constitutes a subversion of the letter and spirit of the Constitution. The inadequate and constitutionally unsustainable legislative mechanism is supported, in the area of usurpation of powers of the elected representatives, by statutory rules framed by the State Government and by its executive instructions. The confluence of the State action in this regard (by the legislative provisions, the rules and administrative instructions), negates the Constitution's mandate that Panchayats be units of local self-Government, is the substratum of the petitioners' grievance. The stand of the Government of Andhra Pradesh - the 1st Respondent: 48. The Secretary, Panchayat Raj and Rural Development ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 provision in Part IX, including Article 243G of the Constitution. (vi) Article 243H of the Constitution is also an enabling provision empowering the State Legislature to, by law, authorize the Panchayats to levy, collect and appropriate taxes. The State Legislature is free to determine the limits, while authorizing the Panchayats to levy, collect and appropriate taxes. (vii) The provisions of Article 243I of the. Constitution do not mandate the Government to accept the recommendations of the Finance Commission. (viii) Of the twenty nine (29) subjects listed in Schedule XI of the Constitution, the Government has issued orders in respect of seventeen (17) subjects including agriculture, social forestry, fuel and fodder, Roads, Bridges and Ferries, non-conventional energy, adult and non-formal education, public distribution system, social welfare, education including primary and secondary schools, health, sanitation and family welfare. In respect of these subjects, monitoring and review of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nct from their elected representatives. Powers have been devolved on the Panchayat Raj Institutions. Powers need not be conferred only on elected bodies and representatives. There is no constitutional requirement that powers be not delegated to the officials of the Panchayat Raj Institutions. (xiii) The extent to which functions have to be assigned to the Panchayat Raj Institutions and/or its elected representatives is for the Government to decide and in respect of the exercise of rule making power of the Government conferred by the Act, no mandamus can issue. (xiv) The statutory provisions enabling removal of elected representatives or dissolution of the Panchayats are in accordance with the constitutional provisions of Part IX of the Constitution. 49. In a detailed counter-affidavit running into eighty two (82) paragraphs Spread over 142 pages, the State Government has set out details of the various Central and State schemes in which Panchayat Raj Institutions have been afforded a role. Details have been furnished about various rules and administrative instructions made and issued to effectuate the purposes of the 1994 Act. The principal grievance in the writ petition that s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and responsibilities upon the institution constitutes compliance with the requirements postulated by the provisions of Article 243G of the Constitution. (c) Article 243G of the Constitution merely reiterates the discretion of the State Legislature in respect of the endowment of powers and authority to the Panchayats. The expression "as may be necessary" in Article 243G of the Constitution is an expression denoting the discretion available to the State Legislature to determine what powers and authority should be devolved; to what level of the Panchayat Institutions; to what component of the Panchayat Institutions whether officials or elected representatives; to what degree and in what measure the devolved powers should be apportioned amongst them [George v. Devon County Council (1988 (3) ALL ER 1002) (House of Lords)]. (d) Part IX of the Constitution has not elaborated the concept of "self-Government". As generally understood, however, 'self-Government' must have two attributes viz.,(a) Government democratically elected by the people and (b) autonomy. Autonomy is an elusive concept in a State where the Governments at multiple levels and Governments a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a manner that creates a separate fiscal domain for Panchayats and that Article 243H of the Constitution should be amended making it mandatory for the Legislature of the State to make laws devolving fiscal powers on the Panchayats. (h) No direction could be issued to the State Legislature to make laws endowing Panchayats with powers and authorities [State of J&K v. A.R. Zakki, AIR 1992 SC 1546, Narendra Chand Hem Raj v. Lt. Governor, [1972] 1 SCR 940, State of Karnataka v. State of A.P. AIR 2001 SC 1560, A.P. Sarpanchas Association v. Government of Andhra Pradesh, 2001 (4) ALD 704, and Ajit Singh v. State of Punjab, AIR 1999 SC 3471 ]. (i) The Courts cannot define the term "local self-Government" when the Constitution has not chosen to enunciate objective standards to determine this elusive concept. It is the duty of the Court to interpret the Constitution as it is and as what it should be. The Court should adopt a construction that effectuates the obvious intention of the Constitution, but could not legislate itself [Union of India v. Deoki Nandan Aggarwal AIR 1992 SC 96, and J.P. Bangal v. State of Rajasthan, [2003] 2 SCR 933. (j) Part IX of the Constitution as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Panchayats. (f) All the centrally sponsored schemes are not being implemented through the Panchayat Raj Institutions. (g) The State Legislature has the discretion to enact laws authorizing Panchayats to levy, collect and appropriate such taxes, duties, tolls and fees, subject to such procedure and limitations as the Legislature may deem fit. (h) The 29 subjects enumerated in Schedule-XI need to be desegregated into activities/tasks which are to be devolved to the appropriate tier of Panchayats with adequate financial powers, funds and staff. The Central Government (Ministry of Rural Development) will continue to pursue the matter with the State Governments including State of A.P. for further devolution of funds, functions and functionaries. (i) Devolution of powers to Panchayats is not mandated under Article 243G, consequently devolution of powers to Panchayats varies from State to State. Sri L. Nageswara Rao, the learned Additional Solicitor General for India supplemented the view of the Government of India in its counter-affidavit. The submissions of the learned Additional Solicitor General are: (a) Complete autonomy for the Panchayats to the exclusion of the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been insisting on devolution of more powers on Panchayats in tune with the spirit of Part IX of the Constitution. There has been transfer of power in respect of 17 out of 29 matters vested in the 11th Schedule, in the State of Andhra Pradesh. The stand of the intervenes : The Federation for Empowerment of Local Government, the Lok Satta and Dr. Jayaprakash Narayana, National Coordinator, Lok Satta, have intervened in the discourse in these writ petitions. The stand of the interveners is : (a) Federalism and Democracy are at the center of the Constitutional theme and are basic and inviolable. In a democracy paradigm people do not get their rights of self-Government from the Government but the Government derives power from the people through the transfer of their sovereignty to a limited extent. (b) The provisions of Part-IX of the Constitution are mandatory. (c) The very purpose of the Constitutional amendment is to provide local self-Government. The 1994 Act however effectuates no devolution or transfer of powers in respect of various items and subjects mentioned in Schedule-XI, to the Panchayat Institutions in a manner that effectuates the expressed Constitutional pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... area of Panchayat Raj Institutions is concerned, is circumscribed and conditioned by the provisions of Part IX, in particular Article 243G of the Constitution. In view of the instructions and mandate of the Constitution in Part IX, the power and discretion of the Legislature is not uncanalized but is conditioned by an obligation to effectuate the purposes of the Constitution. 54. At the request and invitation of this Court, the learned Attorney General for India has appeared to assist this Court on the interpretation of the relevant constitutional provisions. The submissions of the learned Attorney General may be summarized: (1) Part-IX enacts a limited and not a full blow autonomy to Panchayat Raj Institutions. The Constitution does not posit obliteration of the State's role in the functioning of the Panchayats. The State is not an intruder. It's presence is not alien to Part IX. The State is an important player. (2) In interpreting the provisions of the Constitution including those in Part IX, a liberal interpretation that effectuates the purposes of Part IX is permissible, not so however to rewrite the provisions by ignoring the limitations placed on Panchayat Raj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such State or any part thereof with respect to any of the matters enumerated in List n (the State List) in the Seventh Schedule in the Constitution. Entry 5 of the State List reads as under: 5. Local Government, that is to say, the constitution and powers of municipal corporations, improvement trust, district boards, mining settlement authorities and other local authorities for the purpose of local self-Government or village administration. 56. The legislative field enumerated in Entry-5 of the State List consecrated to the Legislature of every State, signals grant of plenary discretion in the Legislature in the matter of legislating upon the fields of legislation enumerated in the entry. A discretion controlled by no justiciable limits explicated by any constitutional provision that mandates a structure, a republican form, devolution of powers, a guaranteed tenure, periodicity of elections, reservations or any measure of existential certainty to the institutions of local governance. The Directive Principle : Article 40 occurring in Part IV of the Constitution (Directive Principles of State Policy) reads as under: Article 40: Organization of Village Panchayats: The State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution certain basic and essential features of Panchayat Raj Institutions to impart certainly, continuity and strength to them. 3. Accordingly, it is proposed to add a new Part relating to Panchayats in the Constitution to provide for among other things. Gram Sabha in a village or group of villages; constitution of Panchayats at village and other level or levels; direct elections to all seats in Panchayats at the village and intermediate level, if any, and to the offices of Chairpersons of Panchayats at such levels; reservation of seats for the Scheduled Castes and Scheduled Tribes in proportion to their population for membership of Panchayats and office of Chairperson in Panchayats at each level; reservation of not less than one-third of the seats for women; fixing tenure of five years for Panchayats and holding elections within a period of six months in the event of supersession of any Panchayat; disqualification for membership of Panchayats; devolution by the State Legislature of powers and responsibilities upon the Panchayats with respect to the preparation of plans for economic development and social justice and for the implementation of development schemes; sound finance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf-Government in ancient India has both historical and practical interest. We owe largely to her elaborate system of local-Government the preservation of the integrity, independence, and individuality of Hindu culture, despite the world shaking and catastrophic political movements to which that culture was frequently exposed in the course of her history." R.K. Mookerji also quotes the report of the Select Committee of the House of Commons, 1832 in the words of Sir Charles Metcallfe: "The village Communities are little republics, having nearly everything they can want within themselves, and almost independent of any foreign relations. They seem to last where nothing else lasts. Dynasty after dynasty tumbles down; revolution succeeds to revolution; but the village community remains the same... This union of the village communities, each one forming a separate little state in itself, has, I conceive, contributed more than any other cause to the preservation of the people of India, through all the revolutions and changes which they have suffered, and is in a high degree conducive to their happiness, and to the enjoyment of a great portion of freedom and independence." R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l-defined local community Governments even in the very early epochs in India. Such sources considered include the works of Narada, Smrti Chandrika, Yajnavalkya, Panini, Bana, Sayana and others and even epics such as the Ramayana and the Mahabharatha. 63. R.C. Majumdar found evidence of fairly developed form of corporate activities in the economic life of village communities as early as the later Vedic period. The learned author traced the outlines of such corporate life and economic activity to references in Brihad-Aranyak-Upanishad, the Jataka stories, Dharma-sutras of Gautama, Arthasastra of Kautilya and other sources of great antiquity. 64. The social, economic, functional and financial structures, the degree of autonomy and the organizational design of the local bodies had, however, as pointed out by erudite historians, not been either uniform or consistent in the various territories that comprised the ancient, medieval or the pre-independent territories that now comprise India. What appears clear, however, is that there were well developed and clearly discernable patterns of local Governments, representative in character which enjoyed a substantial measure of autonomy, so mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Panchayat Raj Institutions with a view to ensure regular conduct of elections, to ensure a term of five years for elected bodies of Panchayats, for specific representation of women and members of the Scheduled Castes and Scheduled Tribes, to provide for devolution of powers and functions to the local self-Governments and for the constitution of a State Finance Commission for every five years to ensure regular devolution of resources to the local bodies. This Bill was passed by the Lok Sabha on 10th August, 1989, but fell through in the Rajya Sabha. Thereafter, in the year 1991, the Bill was again introduced in the Parliament and referred to a Joint Parliamentary Committee consisting of representatives of both the Lok Sabha and the Rajya Sabha. After the approval accorded to it by the Parliament as a Constituent body, the Constitution (73rd Amendment) Act, 1992 came into being. Under the Amendment Act, Part-IX of the Constitution, including Articles 243-A to 243-O and the 11th Schedule were incorporated into the Constitution. The 11th Schedule (which came into effect with effect from 24-4-1993) enumerated the matters in respect of which the Legislature of a State, may by law, devo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, so far as practicable, be the same throughout the State. (2) All the seats in a Panchayat shall be filled by persons chosen by direct election from territorial constituencies in the Panchayat area and for this purpose, each Panchayat area shall be divided into territorial constituencies in such manner that the ratios between the population of each constituency and the number of seats allotted to it shall, so far as practicable, be the same throughout the Panchayat area. (3) The Legislature of a State may by law, provide for the representation-- (a) of the Chairpersons of the Panchayats at the village level, in the Panchayats at the intermediate level or, in the case of a State not having Panchayats at the intermediate level, in the Panchayats at the district level; (b) of the Chairpersons of the Panchayats at the intermediate level, in the Panchayats at the district level; (c) of the members of the House of the People and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly a Panchayat area at a level other than the village level, in such Panchayat: (d) of the members of the Council of States and the members ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Scheduled Castes in the State or of the Scheduled Tribes in the State bears to the total population of the State; Provided further that not less than one-third of the total number of offices of Chairpersons in the Panchayats at each level shall be reserved for women: Provided also that the number of offices reserved under this clause shall be allotted by rotation to different Panchayats at each level. (5) The reservation of seats under clauses (1) and (2) and the reservation of offices of Chairpersons (other than the reservation for women) under Clause (4) shall cease to have effect on the expiration of the period specified in Article 334. (6) Nothing in this Part shall prevent the Legislature of a State from making any provision for reservation of seats in any Panchayat or offices of Chairpersons in the Panchayats at any level in favour of backward class of citizens. ARTICLE 243E Duration of Panchayats etc. (1) Every Panchayat, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer. (2) No amendment of any law for the time being in force shall have (he effect of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se in relation to the matters listed in the Eleventh Schedule. ARTICLE 243H Powers to impose taxes by, and Fund's of, the Panchayats The Legislature of a State may, by law:-- (a) authorise a Panchayat to levy, collect and appropriate such taxes, duties, tolls and fees in accordance with such procedure and subject to such limits; (b) assign to a Panchayat such taxes, duties, tolls and fees levied and collected by the State Government for such purposes and subject to such conditions and limits; (c) provide for making such grants-in-aid to the Panchayats from the Consolidated Fund of the State: and (d) provide for constitution of such Funds for crediting all moneys received, respectively, by or on behalf of the Panchayats and also for the withdrawal of such moneys therefrom, as may be specified in the law. ARTICLE 243I Constitution of Finance Commission to review financial position (1) The Governor of a State shall, as soon as may be within one year from the commencement of the Constitution (Seventy-third Amendment) Act, 1992 and thereafter at the expiration of every fifth year, constitute a Finance Commission to review the financial position of the Panchayats and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r his appointment. (3) The Governor of a State shall, when so requested by the State Election Commission, make available to the State Election Commission such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by Clause (1). (4) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Panchayats. ARTICLE 243L Application to Union territories The provisions of this Part shall apply to the Union territories and shall, in their application to a Union territory, have effect as if the references to the Governor of a State were references to the Administrator of the Union territory appointed under Article 239 and references to the Legislature or the Legislative Assembly of a State were reference, in relation to a Union territory having a Legislative Assembly, to that Legislative Assembly: Provided that the President may by public notification, direct that the provisions of this Part shall apply to any Union territory or part thereof subject to such exceptions and modifications as he may specify in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ARTICLE 243O Bar to interference by Courts in electoral matters Notwithstanding anything in this Constitution-- (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 243K shall not be called in question in any Court; (b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State." Part IX of the Constitution incorporates, in certain areas, clear and indisputable limits to the hitherto plenary discretion of a State Legislature under Entry-5 of the State List. These limits are-- 1. A Gram Sabha defined in a clearly republican form (A. 243(a)) 2. Constitution of a three-tier (level) local self-governance structure (Panchayats) (with the intermediate level being optional in respect of States having limited populations), mandated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies of the Zilla Parishad, District Collectors or other Executive Officials, appointed or nominated by the State Governments and functioning within the exclusive control of the State, was not the underlying purpose of the Constituent exercise, which found utterance as the Constitution 73rd Amendment. 70. The challenge by the petitioners and the defence of the State Government, to the State action qua the provisions of the Act, rules and administrative instructions are primarily predicated upon adversarial interpretations of the provisions of Articles 243G and 243H of the Constitution. Petitioners contend that these provisions constitute a limitation on the State's legislative and executive power and mandate a duty upon the State to devolve powers on the Panchayats in functional, administrative and financial areas so as to effectuate the constitutional purposes and enable them to function as institutions of self-Government. 71. The State Government on the other hand, contends that Article 243G of the Constitution is an enabling provision that sustains and reiterates the discretion available to State Legislature (qua Entry 5 of the State List) to endow Panchayats, inter alia, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ests in the Gram Panchayat, which is however, not entitled to exercise functions expressly assigned by or under the Act, inter alia to its Sarpanch or Executive Authority or to any other local authority or other authority. 75. Sections 8 and 14 provide for direct election of the Members and Sarpanch of a Gram Panchayat. 76. Section 6 provides for a Gram Sabha, which comprises the registered voters of the Gram Panchayat. The Gram Sabha is empowered to consider the matters specified in Sub-section (3) and requires the Gram Panchayat to give due consideration to any suggestions of the Gram Sabha. 77. Section 28 enables any Member of a Gram Panchayat to call the attention of the Executive Authority to any neglect in the execution of the works, waste of property or wants of a locality in the Gram Panchayat and to suggest improvements that appear desirable, whereupon the Executive Authority is required to explain the action taken or proposed on such complaint of a Member, at the next meeting of the Gram Panchayat. A Member is also empowered to move resolutions and to question the Sarpanch with regard to the administration of the Gram Panchayat. Members of the Gram Panchayat are also e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es in the beneficiary committee and areas of agriculture, public health, water supply, sanitation, education and communication and any other areas are to be executed as per the deliberations and decisions of the functional committee. The composition of the beneficiary and functional committees initially included the Sarpanch and other concerned Ward Members in G.O. Ms. No. 289, dated 1.8.1997; G.O. Ms. No. 472 dated 28.12.2002, repealed the earlier orders in G.O. Ms. No. 289 whereby, the composition of the beneficiary and functional committees is left to the discretion of the Government. 83. It has been noticed while surveying the provisions of Sections 60 to 71 (appendix) that even in areas of taxation and finance while there is a facile grant and devolution of taxation and finance powers to the Gram Panchayat, such powers are so circumscribed by requirements of prior sanctions and approvals by the State and its officials, that in pith and substance there is hardly any effective and independent power or discretion consecrated to the elected representatives. 84. The specification that the Executive Authority is subordinate to the Gram Panchayat [Section 30 (4)] and that all offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect and substance, upon the Executive Authority of the Gram Panchayat (who is appointed by the Commissioner and whose salaries, emoluments, discipline and control, vest in the Government and its agents by virtue of the rules made under the proviso to Article 309 of the Constitution). No meaningful endowments of powers, authority and responsibility to the elected representatives is evident, in the provisions of the 1994 Act, 87. In respect of Mandal Parishads the situation is no different. An analysis of the provisions of Sections 148, 149, 151, 161 to 169, 171 and 174 of the 1994 Act, permits the conclusion that it is not the elected representatives of the Mandal Parishad, but the Mandal Parishad Development Officer, District Collector, Commissioner of Panchayat Raj and the State Government, who ordain and direct the policies, functions and responsibilities of the Mandal Parishad, in reality and it is these agents of the State who exercise a stifling control over the affairs of the Mandal Parishad. 88. The Zilla Parishad, as the apex level of local self-Government, functions in a similar ambience and environment of negation of powers and responsibility on the elected represent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrowed phraseology from the provisions of both the 1964 and the 1986 Act. In critical areas of endowment and devolution of powers, authority and responsibility, there is no substantial change in the Legislative content, pre and post 73rd Amendment. 92. The National Commission to review the working of the Constitution as part of its study took up an analysis of decentralization and devolution of powers to Panchayats and Municipalities. The recommendations of the Commission in this behalf are set out in Chapter-9 of its report. The report records that the Union and the State Governments continue to exercise powers in planning and the Panchayats do not enjoy autonomy -financial or administrative-as institutions of local self-Government. The Commission examined whether there has been devolution of powers and responsibility to Panchayats, inter alia in functional and financial spheres. The report records that Panchayats having blossomed into institutions of self-Government, have been reduced to an implementing arm of the State Government. On the financial domain aspect, the report observes, that to be an institution of self-Government a Panchayat should, as far as possible be, a viable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hatever powers and authority it deems fit. The Legislature is the ultimate Judge of what 'self-Government' means; what powers and responsibility could be endowed on the Panchayats to effectuate their functioning as such "self-government" is also within the exclusive domain of the Legislature. In the context of the submissions of these learned Counsel, the role of the Court, invested with the jurisdiction to address constitutional questions and to interpret its provisions - requires to be considered. 94. Before proceeding on the analysis of these core issues, cognate issues urged on behalf of the petitioners may be considered: Whether the Panchayats Comprise the Federal structure under the Constitution: 95. The petitioners urge that the Panchayat Institutions constitute the 3 tier of the federal structure exemplifying a further unit in the vertical division of the governance powers, under the Constitution. The Union of India and the State of Andhra Pradesh emphatically contend that the Panchayats are not a 3rd tier in the federal structure of the Indian Constitution. 96. Federalism could be said to be a form of political association and organization that unite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such concerns. On account of its size, resources and national perspective, the federal Government is able to deal with certain problems that extend across the borders of individual States. The State Governments can focus on the unique impact that a problem may have in a particular geographical or economic area, are closer to popular will, and can engage in social experimentation without the costs and risks incurred in conducting untested social programmes at the national level, they provide a perspective that the federal Government is unable to maintain. 100. The essential characteristic of a federal structure in a constitutional scheme is however the distribution of limited executive, legislative and judicial - authority and functions, among bodies, which are coordinate and independent of each other. Division of governmental powers between co-ordinating and at least semi-independent authorities, is an essential attribute of a federal structure - vide In Re Article 143 of the Constitution of India (UP Assembly case) (supra); State of M.P. v Bharat Singh (supra); S.R. Bommai v. Union of India (supra). 101. The provisions of Part IX of the Constitution neither expressly nor by any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make laws- Narendra Chand Hem Raj v. Lt. Governor (supra); State of Karnataka v. State of Andhra Pradesh. (supra); Ajit Singh v. State of Punjab (supra) and State of J&K v. A.R. Zakki (supra). The interpretive Dilemma : 104. Does the Constitution licence evisceration of the autonomy of the Panchayat Raj Institutions, are the provisions of Article 243G merely enabling provisions or do they signal a constitutional directive, is the concept of "local self-Government" so "elusive" and "inconclusive" that it means what ever the State legislature wants the expression to signify, what are the duties and functions of a Court while interpreting constitutional provisions and what is the prohibited territory for judicial oversight of a legislative exercise challenged as inconsistent with the constitutional structure, text and purposes - are issues that require an ascertainment of the applicable theories and conventions of the judicial role in the area of constitutional interpretation. 105. The spectrum of the Indian Constitutional landscape is a collage, whose apparent simultaneity is an illusion. The apparent unity of even its original text and the values the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and "that construction most beneficial to the widest possible amplitude" of its powers, must be adopted, Gwyer Chief Justice In re The C.P. and Berar Act, 1938 (1939) FCR 18, observed : "...a broad and liberal spirit should inspire those whose duty it is to interpret it (the Constitution); but I do not imply by this that they are free to stretch or pervert the language of the enactment in the interest of any legal or constitutional theory, or even for the purposes of supplying omissions or of correcting supposed errors. A Federal Court will not strengthen, but only derogate from, its position; if it seeks to do anything but declare the law, but if may rightly reflect that a Constitution of Government is a living and organic thing, which of all instruments has the greatest claim to be construed ut res magis valeat quam pereat" (emphasis). 107. Constitutional adjudication is essentially problematic. It is not judging in the ordinary sense. Critics of the role of the Courts in interpreting the Constitution have expressed the worry that Judges routinely exceed their office. Rebecca I. Brown in "Accountability; Liberty, and the Constitution", an article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth a procedural as well as a substantive dimension. A constitutional arrangement can hardly warrant the description 'democracy' unless it possesses both a certain minimum content (e.g. equality, protection of life and liberty and a broad level of enfranchisement) and a minimum process (e.g. popular elections). Regardless of how ideal the content or process might be perceived, a civil society cannot claim to be democratic without some admixture of the two elements. Democracy is thus both about social relations and political procedures with one dependant on and reinforcing, the other. 110. The Canadian Supreme Court put the issue in perspective. The question that fell for consideration in a reference by the Governor in Council, was: "under the Constitution of Canada can the National Assembly, legislature or the Government of Quebec effect the secession of Quebec from Canada unilaterally?" [Re Quebec reference (1998) 161 D.L.R. (4th) 385]. Analysing the content of democracy in the context of the argument that democracy represents the supremacy of the sovereign will of a people (expressed by Quebec in support of unilateral secession), the Supreme Court of Canada obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of mediating principles between the large constitutional or philosophical concepts to which some or all of a community pay tribute and the common problems of reconciliation which beset the modern state." In the performance of such mediating role however, the Judge is not free. He is bound by the constitutional text, the obvious and authentic embodiment of constitutional truth. 113. As an instrument expressing an enduring structure for the governance of a complex and plural society such as ours, the Paramount Instrument contains few provisions that require no elaboration of the constitutional purpose. When Article 58 enacts that no person shall be eligible for election as President unless he has completed the age of 35 years, the constitutional rule is self-dispositive. The constitutional prescription invites no interpretation. 114. Vast areas of the constitutional text, however, abound with expressions that are intended to express principles which the Constitution intends should govern the national charter and the lives of its people for unforeseen circumstances, unfolding events and across generations to come. Expressions like "social", "secular", &quo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Courts [Article 124], and "self-Government" [Articles 243(d) and 243G] - are "principles" not "rules". 117. The difference between principles and rules, as Dworkin (supra) has pointed out, is significant and has important consequences for theories about judicial review. A rule has one or two conceivable relationships to a set of facts; either the facts fall within the rule, in which case the consequence specified by the rule must be accepted, or the facts have no relationship to the rule, in which case the rule is irrelevant. Rules have an absolute either-or quality. Principles, on the other hand, are distinguished both by their generality and by the fact that they apply on an approximate basis. Principles embody concepts. Principles are distinguished by the degree of their relevance in a case, and it is the particular conceptions of these principles that Judges adopt that are used to measure the facts in a given case. The doctrines constructed by Judges embody the specific conceptions that are necessary to give meaning to the principles in constitutional provisions. 118. Constitutional text outlining 'principles' as distinct from 'r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affirmatively expressed by the Constitutional text), has been deduced by the Supreme Court majority, on the basis of arguments about the constitutional text and purposes (per Sikri, C.J, Shelat and Grover JJ; Hegde and Mukherjea JJ, Jaganmohan Reddy, J and Khanna, J). (b) Powers and limitations can be implied from the necessity or the scheme of the Constitution. There are necessary implications for a federal Constitution. Implied limitations on the powers conferred under a statute, constitutes a general feature of all statutes. The position cannot be different in the case of powers conferred under a constitution. A grant of power in general terms or even in absolute terms may be qualified by other express provisions in the same enactment or may be qualified by the implications of the context or even by considerations arising out. of what appears to be general scheme of the statute, (emphasis) In this respect, there is no distinction between other powers and the amending power under the Constitution. The amending power under Article 368 is subjected to implied limitations. (Sikri CJ, Shelat and Grover JJ; Hegde and Mukherjee, JJ and Jaganmohan Reddy, J) - vide Kesavananda Bharati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious sect or denomination. The implications fertilizing these conclusions of the Supreme Court (in Bommai) are implications drawn from the generality of the constitutional text and from writings and theories on religion and secularism, not expressly incorporated into the constitutional text. Jeevan Reddy, J on behalf of himself and Agrawal, J while concurring in the holding that secularism is a constitutional goal and a basic feature of the Constitution; and that the expressions 'Socialist' and 'Secular' by themselves are not capable of precise definition, nevertheless ascertained the meaning of the expression 'secular' in the context of our Constitution. The constitutional signification of the expression 'secular' was constructed by Jeevan Reddy, J from various provisions of the Constitution, including Articles 14 - 16, 25 - 30, the speech of Sri KM. Munshi during the Constituent Assembly Debates, a lecture of Sri M.C. Setalvad on 'secularism' (Patel memorial Lectures, 1965), the Inaugural Address of Gajendragadkar, J in a seminar 'Secularism; its implications for law and life in India', an article by Prof. Upendra Baxi 'Struggle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the expression of a similar provision in Article 371D(3). In coming to this conclusion, the Supreme Court considered whether the enacting history of Article 371D justified such a conclusion (i.e., whether there was an intention on the part of the Legislature to impair or derogate from the constitutional scheme of securing the independence of the judiciary as enshrined in Articles 229 and 235 - while enacting Article 371D, the Apex Court reasoned that the consequences of giving the general, undefined and flexible phrase "Civil Services of the State" in Article 371D(3), a wider construction so as to include in it the High Court staff and the members of the subordinate judiciary would result in the control vested in the Chief Justice over the staff of the High Court and in the High Court over the subordinate judiciary being denuded of its substance, efficacy and exclusiveness. Concluding that the independence of the judiciary including the control of the Chief Justice and of the High Court over this class of Civil Services of the State was a vital constitutional value, the Supreme Court held that this class of employees was advisedly excluded from the purview of Article 37 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required to be educated and well informed about the contesting candidates. Such information would include assets held by the candidate, his qualification including educational qualification and antecedents of his life including whether he was involved in a criminal case and if the case is decided - its result, if pending - -whether charge is framed or cognisance is taken by the Court. There is no necessity of suppressing the relevant facts from the voters." Implicating the right of the members of the democratic society to be sufficiently informed so as to influence intelligently the decisions, which may affect themselves including their decision of casting a vote in favour of a particular candidate at election into guaranteed freedom of speech and expression under Article 19(1)(a), the Supreme Court upheld the mandamus issued by the Delhi High Court to the Election Commission to secure to the voters the information specified by the High Court, pertaining to each of the candidates contesting elections to the Parliament and to the State Legislature. The Supreme Court held that subject to a valid law enacted by the appropriate legislature the Election Commission has residuary pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and becomes the basis of the authority of the Government, voting at the election is the formal expression of will or opinion by persons entitled to exercise the right on the subject or issue and 'to scuttle the flow of information - relevant and essential to the voter/citizen, would effect the voters' ability to evaluate the candidate. 128. The first and second Democratic Reforms Cases - validate, reiterate and illustrate the constructivist role of the judicial branch in the interpretive exercise of understanding the meaning and context of constitutional principles expressed in "inconclusive" phraseology. 129. From the numerous precedential sign-posts that dot the landscape of constitutional interpretation, particularly interpretation involving identification of the meaning of apparently 'inconclusive', 'elusive' or 'nebulous' expressions, it could safely be inferred that the principal purposes of enacting the Constitution is also the enunciation of principles that are transcendent, value-pregnant, apparently inconclusive, but nevertheless expressive of the great values and purposes, which the Constitution ordains the polity and the ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the jurist." 132. In the area of constitutional and statutory construction, the shift in the judicial role, from the protean stage of "discovery of the grammatical meaning" to "proliferation of the legislative purposes", has been brought about, not the least, on account of the accelerating complexity of the State and civil society, demographic plurality, proliferation of organizations and structures and metamorphoses of our society into an administrative law state with skeletal legislation delegating vast powers including policy choices upon regulators and administrative agencies. The bureaucratization of democracy has prompted Howard T. Markey to remark in an article "On the cause and Treatment of Judicial Activism" that administrators and regulators should be characterized as "Administrative Law Congressmen." 133. Role of the Federal Courts in deciding constitutional questions is and always has been an activist one. It is not a role that has been usurped by the judiciary, but is one which is inextricably intertwined with its duty to interpret the Constitution. In an ideal society, all judgments of value and significant decisions sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd to do so in a normatively deducible manner. When more than a theory plausibly accounts for the constitutional text having been written, as it was, an assessment along a normative dimension, whether undertaken consciously or unconsciously, becomes inevitable and desirable. The ''identification" or "derivation" of constitutional values is seldom, if ever, a value-neutral exercise." (Fallon-cited supra). 135. A Constitution addresses itself to explicating the overall organizational plan of the subject society, its enduring values and the governance structures to effectuate those values through such plan. In our Constitution, the nation's goals are required to be achieved by a democratic processes operating through a federal structural mechanism. A democratic governance process, a core constitutional value, is, however not the goal of the constitutional scheme. It is the authorized means to achieve the goals,, those enduring values that find utterance in the spectrum of the Document's text and structure. The oath of true faith and allegiance to the Constitution as by law established does not liberate us from the obligation to ascertain whether th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t participation of citizens in electing local leaders has been widely identified as a classical source of democratic patterns. 139. Throughout history, despotic political leadership have often built large bureaucracies to control their population and to discourage democracy, especially local democracy. From the Roman Empire to Louis-XIV, Napoleon Bonaparte and Joseph Stalin, a strong central bureaucracy was imperative for physical domination and economic management. History has recorded that the French monarchs lured local patricians to the palace at Versailles and replaced them with administrative officials called 'intendants' (later prefets). 140. Local Government influences national democracy in three broad ways:-(a) It generates local authorities that are internally democratic; (b) It contributes competing perspectives to the national democratic process; and (c) It fosters local innovations that can spread nationally. 141. Each of these influencing factors could be briefly noticed: (a) Democracy is quintessentially local. Many political scientists from the Greek to the modern period have argued that large cities and, even more national' Governments are less dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecture, the expression as may be necessary to enable them to function as institutions of self-Government (emphasis) in Article 243G, signals the constitutional intent to reiterate an absolute and un-canalized discretion in the State Legislature to invest the expression "self-Government" with whatever meaning it chooses. In short, the argument is that "self-Government" means what the Legislature intends the expression to mean and nothing else. 144. The above contention urged on behalf of the Union and the State, presupposes that the constituent exercise in enacting Articles 243 G and H by the 73rd Amendment is an exercise in enacting a surplusage. The logic of this contention is also that Article 243G shares with Article 40, the character of an instrument intended merely to guide the conscience of the Legislature to a constituent hope, and is not an enforceable constraint on State legislative power. 145. It is impermissible to treat any constitutional provision as a surplusage. Article 40 is an existing exhortation (unenforceable though), directing the State to take steps to organize village Panchayats and endow them with such powers and authority as may be nec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntend that this Article neither circumscribes the powers of the State Legislature under Article 246(3) to make laws in relation to the entries in Lists II and III of the Seventh Schedule, devolving power other than on Panchayats, nor does it restrict the powers of the State Legislature under Article 243G, to devolve powers on Panchayats for implementation of schemes in matters other than those illustrated in the Eleventh Schedule. As Article 243G commences with "subject to the provisions of the Constitution", the enabling power of the State Legislature, under Article 246(3) is intact and the expression "may" in Article 243G reinforces this constitutional intent, contend the Union and the State. 148. Ordinarily the expression "may" in a statutory context is not an expression of "compulsion" but is an enabling word intending "capacity" or "discretion" - [see Madanlal Fakirchand Dudheya v. S. Changdeo Sugar Mills, AIR 1962 SC 1543, Chinnamar Kathiam v. Ayyavoo, [1982] 2 SCR 146 ]. Contextually however, the expression "may" may constitute an expression of a power coupled with a duty - Frederic Guilder Julius v. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... phy of the machinery for removal of Judges. The use of the word "may" does not therefore necessarily indicate that the whole Clause (5) is an enabling provision leaving it to the Parliament to decide whether to enact a law even for the investigation and proof of the misbehavior or incapacity. 151. From the precedential guidance available from the aforementioned illustrations of the construction of the expression "may" taken together with the text, philosophy and object of the 73rd Amendment, we are of the considered view that the expression "may" occurring in Article 243G approximates more to a constitutional command couched in a deferential verbal choice, in recognition of the fact that the command is addressed to a high authority -the legislature. 152. In the over all constitutional context, the enacting history of the 73rd Amendment and the mischief sought to be addressed by the amendment, the conclusion is irresistible that the constitutional command to the legislature of the State is to endow Panchayats with power and authority that are necessary to enable them to function as institutions of self-Government. It is however not possible to conclud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le manner should of necessity inhere in the elected representatives of the Panchayats to enable characterization of these institutions as 'self-Government' institutions. A State Legislation that divests or withholds effective power of local governance from the elected representatives of the Panchayats would tantamount to a Legislation that subverts the constitutional purposes of Part-IX 155. In Para-19 of its affidavit the State pleaded that of the 29 subjects enumerated in Eleventh Schedule of the Constitution, the Government has issued orders in respect of 17 subjects. The particulars of the administrative orders issued in respect of 17 subjects are also set out. No doubt in the latter clause of Article 243G expressions "may" and "subject to such conditions as may be specified therein" are employed. These expressions connote discretion in the State Legislature to devolve powers and authority, with respect to the areas enumerated in Clauses (a) and (b) of Article 243G, The discretion is not absolute but is conditioned by the constitutional instruct that the Panchayats should be enabled to function as institutions of self-Government. While it is within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so been placed before this Court to posit a conclusion that the endowment of fiscal powers to the Panchayats or the devolution of finances out of the State's resources is illusory and the state's conduct in this regard renders the Panchayats dysfunctional. 159. It is however clear that the controls, imposed on the Panchayats by the provisions of the Act and the complementary statutory rules (even to the extent of the financial powers facially endowed), are intrusive and destructive of even a modicum of autonomy. The provisions of Sections 153 and 181 disclose that elections to the office of President and Vice-President of the Mandal Parishad, Chairperson and Vice-Chairperson of the Zilla Parishad, are to be on political basis. This legislative context impregnates potential situations of elected persona (President, Vice-President, Chairperson or Vice-Chairperson) not belonging to the same political party that might be in power at the State level. The wide powers of removal of a Sarpanch, President or Chairperson (Section 249) or of dissolution of a Gram Panchayat, Mandal Parishad or Zilla Parishad (Section 250) must be conditioned by safeguards to ensure that it is the mala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 40 was observed, more in the breach. Therefore, the 73rd Amendment: to address and remedy the mischief in the working of our structural mechanisms. 162. Recognition in the local bodies, of a constitutional right to survive, as more than vacuous or symbolic institutions necessarily implies substantive and structural limits on the powers of the State as well as a concomitant obligation on the State legislature, to effectively devolve meaningful power to the local bodies to enable effectuation of the constitutional intent underlying the 73rd Amendment's purposes. If these limits and obligations on the States' powers are to have any harmony with the Constitution's purposes, the States must necessarily be prevented not only from formally destroying the local bodies but also from acting in ways that would leave a local body formally intact, but functionally incompetent. 163. Post-73rd Amendment, State-subordinating excesses by federal legislative or executive powers are not the sole constitutional concern. Prevention of local body-subordinating excesses by State Legislative and Executive powers is equally the constitutional concern. A legislative measure that emascul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncluding to the Panchayats (though sans - legislative or judicial powers) is a structural device explicated by the Constitution: (i) to ensure effective representation of the people; (ii) to engender greater accuracy with which a local decision-maker could operate as a calculator of neighborhood costs and benefits; (iii) to nurture a greater degree of community fostered by the opportunity of meaningful and relatable political opportunity that decentralization make possible and (iv) to sustain the greater diversity that such decentralization ensures. 165. Rights - whether of individuals, of communities or of States - reflect values; they are not values by themselves. The rights recognized by the Constitution structure the process and substance of Government, so that Governments operate as though they share these values. To identify and recognize whether a particular right is explicated by the Constitution, it is necessary to identify both whether and how particular Governments would be unhindered by the rights and how Governments would be affected in the functioning as effective instruments of delivering the Constitution's purposes. In any analysis, the claims of Governments th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 68. The learned Attorney General for India has pointed out that on a true and fair construction of the provisions of Part-IX, the State's role in the functioning of Panchayats is not obliterated. The Panchayats do not have full-blown autonomy under the constitutional dispensation; the State is neither an intruder nor its presence alien to the integrity of the Panchayats. Theoretically this submission is unexceptionable. 169. We have noticed earlier in this judgment that the State is a component of the federal structure under our Constitution and the Panchayats are not. However, consequent on the 73rd Amendment, the Panchayats are guaranteed a role in governance, at the sub-State level. Their governance structure is democratic and republican. This characteristic of the Panchayats is a constitutional grant and must be accorded a meaning, which needs be effectuated. The Panchayats are legal inhabitants of the constitutional space and have a legitimate share in the governance process though at the sub-State level. They are more than mere dependencies of the State, They are also self-Government(s). 170. In identifying the appropriate balance between the discretion of the State Leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h a balance is achieved only when the State's presence does not overawe the Panchayats, by choking State and State agent control. State control over the Panchayats that clearly oversteps the legitimate State interest, to co-ordinate Panchayats' functions as a part of the State-wide governance concerns, would amount to State control directed at destruction and emasculation of the Panchayats essential character of being institutions of 'self-Government' without redeeming Constitutional justification and legitimacy. The control exercised by the State over the functional and fiscal domains of the Panchayats and over the personnel working thereat, disturbs, in our considered view, this delicate but clear balance - the constitutional equilibrium. The replication in the 1994 Act, of the provisions of the repealed 1964 Act and the 1986 Act, discloses that the State was not sufficiently sensitive to the constitutional dynamics resulting from the 73rd Amendment. 173. Jurists and political scientists, who have studied the working of modern democratic Governments, are seen to observe that much of modern legislation is executive sponsored and crafted though legislatively proces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egitimately perform in regulating the affairs of the Panchayats in the interests of the vitality of their functioning and in effectuation of the State's obligation to harmonize the functioning of the Panchayats with the larger State interests and concerns, 177. The 1994 Act is a legislation intended to effectuate the purposes and provisions of Part IX of the Constitution, and is enacted soon thereafter for the purpose. The aberrations (noticed herein) in the State legislation qua the constitutional position as declared in this judgment, are presumptively the result of a misconception of the meaning and content of the amended constitutional provisions. We have declared what the Constitution implies, intends, means, commands and expects. As the excision of the unconstitutional statutory provisions would destroy the ratio of the 1994 Act and render inoperable the entirety of the 1994 Act, we declare The Andhra Pradesh Panchayat Raj Act, 1994 unconstitutional. 178. Writ Petition No. 12348 of 2002 is disposed of as above. Writ Petition No. 13526 of 2002: Writ Petition No. 13256 of 2002 involves a specific and narrow issue - challenge to the memo dated 18.7.2002 issued by the St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illa Parishads including provisions relating to elections, qualifications and disqualifications of candidates for election, reservation of seats, appointment and control of Chief Executive Authority and his powers and functions, provisions relating to special invitees and respecting the funds of the Zilla Parishad. Part-V sets out provisions relating to constitution, powers and functions of the State Election Commission, conduct of elections and enumeration of election offences. Part-VI incorporates provisions for the constitution of the Finance Commission, qualifications for appointment and manner of selection of the members of the commission including disqualifications, terms of office and conditions of service and salaries and allowances of members, as also the functions of the Commission. Part-VIA sets out special provisions relating to Panchayats, Mandal Parishads and Zilla Parishads located in scheduled areas. Part-VII sets out miscellaneous provisions in relation to the local bodies at various levels, including powers of the Government to issue directions, to remove a Sarpanch, President or a Chairperson, to dissolve a Gram Parishad, Mandal Parishad or Zilla Parishad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the meetings of the Gram Sabha are issued in G.O. Ms. No. 162 PR&RD Department, dated 4.4.1997, fixing dates for conduct of the Gram Sabha meetings. These rules provide for issuing of a notice for the holding of the meeting, the business to be transacted at such meeting, the obligation of the Sarpanch to convene a meeting of the Gram Sabha on requisition as specified, maintenance of an attendance register for the meeting, procedures for drawing up the proceedings of the meetings and specification of the matters that need be placed before the Gram Sabha in addition to those specified in Section 6. Section 14 sets out the substance and procedures in respect of elections, the term of office of the Sarpanch of a Gram Panchayat and provides for direct election to the office of the Sarpanch. The Section also contains other provisions with regard to term of office, the filling up of a casual vacancy and for disqualifications for the holding of the office. Election for the office of Upa-Sarpanch from among the members of the Gram Panchayat is also provided for. Section 25 enumerates the powers and functions of the Sarpanch which include administrative control over the executive au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erform all functions specifically conferred or imposed on the executive authority by or under the Act, subject to restrictions and conditions as legislatively provided and to exercise executive power for carrying out the provisions of the Act and is made directly responsible for the due fulfillment of the purposes of the Act. In addition to the functions enumerated in Section 32 other functions of the Panchayat Secretary are explicated in the A.P. Panchayat Raj (Functions of Panchayat Secretary) Rules, 2002 published in G.O. Ms. No. 4 PR&RD Department, dated 7.1.2002. Under these Rules the functions of the Panchayat Secretary are very wide, categorized into different heads such as those relating to Panchayat administration, general administrative functions, help to concerned departments, police functions, community welfare and development, maintenance of various records and co-ordinating functions. Section 33 provides emergency powers to the Sarpanch, in consultation with the executive authority to direct the execution of any work or doing of any act that requires the sanction of the Gram Panchayat or any of its committees the execution whereof is in his opinion necessary for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. No. 472 PR&RD Department dated 28.12.2002. As amended, the composition of each of the functional or beneficiary committees shall be as decided by the Government from time to time keeping in view the priorities of the subjects and policies. Rules 2 to 16 of the earlier rules are omitted by the amendment. In G.O. 289 the beneficiary committee was to comprise the Sarpanch of the Gram Panchayat to be the President of the committee, the other members being the concerned ward members or members (of wards) where the work is to be taken up, the concerned executive authority, the member of the concerned territorial constituency elected for the Mandal Parishad and a person from the voluntary organization, if any, operating in that area. This composition was eschewed by the amendment and the composition of the beneficiary committee and functional committee was left to the periodically exercisable discretion of the Government. Section 43 requires the executive authority of every Gram Panchayat to prepare a report on its administration for each year and to place it before the Gram Panchayat for its consideration. Rules in this regard - The A.P. Gram Panchayat (Administration Report) Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ouses in the village on any of the prescribed bases. This provision prohibits levy of house tax on poultry sheds and their annexes. Sub-section (4) of Section 61 empowers the Government to make rules providing for exemption of special classes of houses from taxes, the manner of ascertaining the annual capital value of the houses or the categories into which they fall for the purpose of taxation, persons who shall be liable to pay taxes, grant of exemption from the taxes on grounds of poverty, grant of vacancy and other remission and the circumstances in which and the conditions subject to which houses constructed, reconstructed or demolished situated in enumerated areas shall be liable or otherwise to the whole or any portion of the tax. Rules to effectuate some of the provisions of Section 61 called as the Agricultural Land Tax Levy Rules have been issued in G.O. Ms. No. 64 dated 5.2.1996. Rules issued in G.O. Ms. No. 64 dated 5.2.1996 condition the power of a Gram Panchayat to levy the categories of taxes enumerated in Clause (ii) of Sub-section (3) of Section 60, viz., "tax on agricultural land for a specific purpose." The rules specify the purposes for which taxes o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 62(2), on its publication, the order of the Government would apply as if the Gram Panchayat had by a 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. Thus, an order of the State Government would supersede any earlier resolution of the Gram Panchayat with regard to levy of house tax. Under Section 62(3) the Gram Panchayat is disabled from altering the rate at which house tax is levied or from abolishing such tax as is leviable pursuant to an order of the Government, except with the previous sanction of the Government. Section 71 ordains the Gram Panchayat to levy a special tax on houses at such rates and subject to such rules as may be prescribed, to provide for expenses connected with the construction, maintenance, repairs, extension and improvement of water or drainage works, lighting of public streets and public places and other similar works. Rules in this behalf have been issued in G.O. Ms. No. 252 PR&RD Department, dated 2.7.1997. These rules e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of territorial constituencies as may be specified in the notification made for this purpose. Section 149sets out the composition of the Mandal Parishad which includes persons elected under Section 151, the Member of the Legislative Assembly of the State representing a constituency which comprises wholly or partly the Mandal concerned, the Member of the House of People representing a constituency likewise and a person belong to minorities to be co-opted in the prescribed manner by the elected members, from among the voters in the Mandal. Section 151 provides for a direct election of members to the Mandal Parishad from each territorial constituency specified in Section 150, from among the persons who are registered voters in the Mandal Parishad. Section 158 specifies the permanent invitees to the meetings of the Mandal Parishad; such invitees include the Collector, Sarpanches of all Gram Panchayats within the Mandal Parishad, the Member of the Z.P., elected from the Mandal concerned, the Chairperson of the Z.P., and the President of the Agricultural Marketing Committee. These permanent invitees are entitled to participate in the deliberations and proceedings of the meetings of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c directions regarding the performance by the Mandal Parishad Development Officer of any of the functions assigned to him under the Act. The salaries, allowances, pension and contributions towards Provident Fund in relation to the Mandal Parishad Development Officers appointed by the Government for the Mandal Parishads are required to be paid from the consolidated fund of the State under Section 167(6). Sub-section (7) enacts that the Government shall have the power to make rules to regulate the classification and methods of recruitment, conditions of service, pay and allowances and disciplinary conduct of the Mandal Parishad Development Officer. The powers and functions of a Mandal Parishad Development Officer have been set out in G.O. Ms. No. 489 PR&RD Department, dated 3.12.1996. Under these rules the Mandal Parishad Development Officer is empowered to enter and inspect any immovable property or work in progress under the control of any Gram Panchayat or its executive authority; any institution maintained by or under the control of any Gram Panchayat and any records, registers and other documents of such institution and the office of any Gram Panchayat and any records, registers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date and the Mandal Parishad is required to sanction the budget with such modification as it thinks fit. The budget so sanctioned has to be submitted by the Mandal Parishad Development Officer to the Zilla Parishad and in the absence of a Zilla Parishad to the District Collector. The Zilla Parishad or the District Collector, as the case may be, if satisfied that adequate provision has not been made in the budget for giving effect to the provisions of the Act, are empowered to approve the budget with modifications as are necessary to effectuate the provisions of the Act. Sub-section (3) of Section 174 enacts that where a budget is not sanctioned by the Mandal Parishad the Mandal Parishad Development Officer shall submit it to the District Collector, who shall sanction it with such modifications as he thinks fit and forward it to the Zilla Parishad. The Zilla Parishad, on receipt of the budget so sanctioned, is required to approve it as if the Mandal Parishad Development Officer submitted it after sanction by the Mandal Parishad. In such an event where there is no Zilla Parishad the sanction accorded by the District Collector shall be final. In re Zilla Parishads : Section 177 occ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holding office under the Zilla Parishad or the institutions thereunder in matters of executive administration, accounts and records of Zilla Parishad or its institutions. He also has powers of supervision and control in respect of execution of all the activities of the Zilla Parishad including the powers of entry and inspection of any works under the management of the Zilla Parishad. He is empowered to enter into agreement and sign and execute them in the name and on behalf of the Zilla Parishad. He is required to implement specific directions issued by the Zilla Parishad regarding the performance by him of any of the functions assigned to him under the Act provided such directions of the Zilla Parishad are in conformity with the terms and conditions governing planning, community, development or other developmental activity entrusted by the Government or other authority. The Chief Executive Authority is required to execute the orders of the Government in exercise of the powers conferred by the Act and Rules or any other law for the time being in force and he is also required to forthwith send a compliance report to the Government and to place a copy thereof before the Chairperson ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re district, to secure the execution of plans, projects, schemes or other works in respect of individual Mandals or common to two or more Mandals in the district and to generally supervise the activity of Mandal Parishads in the district. Sub-section (2) of Section 192 empowers the Zilla Parishad, with the approval of the Government, to levy contribution from the funds of the Mandal Parishads in the district. Section 193 empowers the Chairperson of a Zilla Parishad to exercise administrative control over the Chief Executive Authority for the purpose of implementation of the resolutions of the Zilla Parishad or any Standing Committee thereof. Sub-section (6) of Section 193 obligates the Chairperson to convene meetings of the Zilla Parishad so as to ensure that atleast one meeting of the Panchayat is held every 90 days. On failure to perform such duty resulting in no meeting being held within the period of 90 days or within 30 days following such period, the Chairperson is declared to have ceased to be so and is rendered ineligible for a period of one year from the date of such cessation, to be elected as Chairperson. Sub-section (7) of Section 193 empowers the District Collector t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Government who may thereupon, approve the budget as if it were submitted after sanction by the Zilla Parishad. General Powers: Section 249 enacts the powers of the Government to remove a Sarpanch, President or a Chairperson for wilful omission or refusal to carry out the orders of the Government for the proper working of the concerned local body, for abuse of position or of the powers vested, for misconduct in the discharge of duties or for persistent default in the performance of functions and duties entrusted under the Act, to the detriment of the functioning of the concerned local body or where a Sarpanch, President or Chairperson, as the case may be, has become incapable of such performance. While the powers of removal of an elected member of the Gram Panchayat are conferred on the District Collector, the power of removal of elected member of Mandal Parishad or Zilla Parishad are conferred on the Government including the powers of suspension, respectively. Section 250 inheres in the Government powers to dissolve a Gram Panchayat, Mandal Parishad or Zilla Parishad where it appears to it that a Gram Panchayat, Mandal Parishad or Zilla Parishad is not competent to perfor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribes and Backward Classes, Women belong to these categories and for women belonging to the general category is provided; for Gram Panchayat [Section 99]; for Mandal Parishad [Section 152] and for Zilla Parishad [Section 180], Similar reservation structure is provided for the post of a Sarpanch of Gram Panchayat [Section 15]; for the Office of President and Vice-President of the Mandal Parishad [Section 153 (2)] and for the Office of the Chairperson of the Zilla Parishad [Section 181 (2)]. Tenure of Office: For the Members of the Gram Panchayat [Section 13]; Sarpanch [Section 14]; Members of the Mandal Parishad [Section 154]; President and Vice-President the Mandal Parishad [Section 153]; Members of the Zilla Parishad [Section 182] and Chairperson and Vice-Chairperson of the Zilla Parishad [Section 181] a tenure of office of 5 years is prescribed. Funds of the Panchayat Bodies: Provision is made for constitution of separate funds comprising the monies received by the three levels of Panchayat Institutions i.e., Gram Panchayat Fund [Section 74]; Mandal Parishad Fund [Section 171] and Zilla Parishad Fund [Section 197]. Financial Powers and Obligations: Gram Panchayat: (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 69]. (E) The power of a Gram Panchayat to levy vehicle tax under Section 60(3)(i) is also subject to any exemptions or restrictions as may be ordained by rules made by the Government. (F) A Gram Panchayat is also ordained to levy a special tax on houses, subject to prescribed rules and at rates to be prescribed, to provide for expenses connected with public utilities as specified [Section 71]. (G) Section 75 stipulates the purposes for which Gram Panchayat Fund should be applied, inter alia, under Section (2) of Section 75, the salaries, allowances, pensions, pensionary contributions and Provident Fund contributions of its officers and servants should be paid out of the Gram Panchayat Fund. (H) Even contributions by Gram Panchayats to any fund for defence of India or to expenses in public exhibitions, ceremony or entertainment in the village, to a charitable fund or for any institution for the relief of the poor, treatment of disease or infirmity or the reception of deceased or infirm persons or the investigation of the cause of disease or contributions to the funds of any institutions established for promoting the community development or the aims of the Panchayat Raj, are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requires the Government to make an annual grant at the rate of Rs. 2/- per person residing in the district and Sub-section (3) ordains that the expenses of the Zilla Parishad shall include the salaries and allowances of its officers and other employees, allowances to be paid for special invitees to any meetings of the Zilla Parishad, the allowances for attending the meetings of a Zilla Parishad or Standing Committees and any item of expenditure directed by the Government for carrying out the purposes of the Act and such other expenses as may be necessary for such purposes. Election Commission: In conformity with Article 243K in Part IX of the Constitution of India, Part-V of the 1994 Act sets out provisions with respect to the constitution of the State Election Commission, powers and functions as well as other provisions relating to incidental matters connected with elections. Finance Commission: The constitution, qualifications for appointment, term of office of members, the conditions of service, salaries and allowances of members and the functions of a Finance Commission are set out in Part VI of the 1994 Act, in accordance with the mandate of Article 243K of the Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the elected representatives of the Panchayats would tantamount to a legislation that subverts the constitutional powers delineated in Part IX of the Constitution. He has also taken a view that denial by the State Legislature of any financial resources to the Panchayats would negate the Constitutional purpose. In that view of the matter, he has observed that some of the provisions of A.P. Panchayat Raj Act, 1994 including Sections 32 , 60 to 62, 77, 137, 167, 174, 186 and 199 negatively impact the "self-Government" characteristics of the Panchayats without discernible and redeeming State interest and legitimate Governmental purposes and the complementary statutory rules and the administrative instructions also transgress the constitutional limitations on the States' role and are far beyond the permissible limits of participation and control with respect to the Panchayats. The offending provisions of the Act in his view are so interwoven with the other provisions of the Act, they cannot be considered or treated as stand alone provisions and has thus proposed to declare the said Act as unconstitutional, He has opined that what the Constitution implies, intends, means, c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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