# BHANUMATI ETC. ETC v. STATE OF UTTAR PRADESH THROUGH ITS PRINCIPAL SECRETARY AND OTHERS

- **Citation:** [2010] 7 S.C.R. 585
- **Court:** Supreme Court of India
- **Decided:** 2010-05-04
- **Case number:** Civil Appeal Nos. 4135-4152 of 2010
- **Bench:** G.S. Singhvi, Asok Kumar Ganguly
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bhanumati-etc-etc-v-state-of-uttar-pradesh-through-its-principal-secretary-and-26930
- **Pages:** 39

## Headnote

A
B
UP. Panchayat Laws (Amendment) Act, 2007 - ss. 15
and 28 - Challenge to - On the ground of incorporation of C
the concept of no-confidence motion as regard the office of
Chairperson of Panchayat in the statute - Substitution of the
provision 'more than half' in place of 'not less than two thirds'
relating to majority for moving no-confidence motion and
block period of 'one year' for initiation of no-confidence motion D
in place of 'two years' - Held: The 2007 Act is constitutionally
valid - Provision of no-confidence is not inconsistent with Part
IX of the Constitution - Statutory provision of no-confidence
motion against Chairperson is a pre-Constitutional provision
and was there in s. 15 of the 1961 Act - If no-confidence
E
motion is passed against Chairperson of Panchayat, he/she
ceases to be Chairperson, but continues to be a member of
Panchayat and Panchayat continues with a newly elected
Chairperson - Thus, there is no institutional set back or
impediment to the continuity or stability of Panchayati Raj
F
Institution - Entry 5, list II of 7th Schedule is wide enough to
authorize legislation of no-confidence against Chairperson of
Panchayat - Uttar Pradesh Kshetra Panchayats and Zila
Panchayats Adhiniyam, 1961 - Constitution of India, 1950 -
Part IX, 7th Schedule Entry 5, list II.
In the Uttar Pradesh Kshetra Panchayats and Zila
Panchayats Adhiniyam, 1961, for initiation of no-
• Judgment Recd. On 24.7.2010.
585
G
H
586
SUPREME COURT REPORTS
[2010] 7 S.C.R.
A
confidence motion in reference to Kshettra Samiti/
Panchayat, the block period was of 12 months and the
majority of more than half of the total number of members
of Kshettra Samiti was required. The 1961 Act was
amended several times in 1965, 1976, 1990, 1994 and
B
1998. In 2007 again by Act No. 44 of 2007, for initiation of
no-confidence motion, the block period of 'two years' was
substituted by 'one year' and as regard the provision
relating to the majority for moving no-confidence motion,
the words 'not less than two-third' was substituted by
c words 'more than half'. The appellants challenged the
constitutional validity of U.P. Panchayat Laws
(Amendment) Act, 2007. The High Court upheld the same.
Hence these appeals.
Appellants contended that there is no concept of noD confidence motion in the detailed constitutional provision
under Chapter IX of the Constitution, thus, the
incorporation of the said provision in the statute militates
against the principles of Panchayti Raj Institution; and
that the substitution of the provision 'more than half' in
E
place of 'not less than two thirds' and the words 'one year'
in place of 'two years' in ss. 15 and 28 of the amendment
Act dilutes the principle of stability and continuity which
are main purposes behind the object and reasons of the
Constitutional amendments in Part IX of the Constitution.
F
Dismissing the appeals, the court
HELD: 1. The constitutional validity of the U.P.
Panchayat Laws (Amendment) Act, 2007 (U.P. act 44 of
2007) is upheld. Considering all the aspects, there. is no
G reason to take a view different from the one taken by the
High Court. The judgment of the High Court is upheld. All
interim orders are vacated. [Paras 110 and 111] [623-AB; 622-H]
H
2.1. Under the Constitutional scheme introduced by
BHANUMATI ETC. ETC. v. STATE OF U.P. TR. ITS
587
PRINCIPAL SECY.
the 73rd Amendment Government State is no longer a
A
service provider but is a felicitator for the people to
initiate development on the basis of equity and social
justice and for the success of the system people have to
be sensitized about their role and responsibility in the
system. Thus, the composition of the Panchayat; its
B
function, its election and various other aspects of its
administration are now provided in great detail under the,
Constitution with provisions enabling the State
Legislature to enact laws to implement the Constitutional
mandate. Thus, formation of Panchayat and its c
functioning is now a vital part of the Constit

## Text

_Characters 0–39,775 of 71,534. This is a partial read: ask again with offset=39775 for what follows._

[2010] 7 S.C.R. 585
BHANUMATI ETC. ETC.
v.
STATE OF UTTAR PRADESH THROUGH ITS PRINCIPAL
SECRETARY AND OTHERS
(Civil Appeal Nos. 4135-4152 of 2010)
MAY 4, 2010*
[G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]
A
B
UP. Panchayat Laws (Amendment) Act, 2007 - ss. 15
and 28 - Challenge to - On the ground of incorporation of C
the concept of no-confidence motion as regard the office of
Chairperson of Panchayat in the statute - Substitution of the
provision 'more than half' in place of 'not less than two thirds'
relating to majority for moving no-confidence motion and
block period of 'one year' for initiation of no-confidence motion D
in place of 'two years' - Held: The 2007 Act is constitutionally
valid - Provision of no-confidence is not inconsistent with Part
IX of the Constitution - Statutory provision of no-confidence
motion against Chairperson is a pre-Constitutional provision
and was there in s. 15 of the 1961 Act - If no-confidence
E
motion is passed against Chairperson of Panchayat, he/she
ceases to be Chairperson, but continues to be a member of
Panchayat and Panchayat continues with a newly elected
Chairperson - Thus, there is no institutional set back or
impediment to the continuity or stability of Panchayati Raj
F
Institution - Entry 5, list II of 7th Schedule is wide enough to
authorize legislation of no-confidence against Chairperson of
Panchayat - Uttar Pradesh Kshetra Panchayats and Zila
Panchayats Adhiniyam, 1961 - Constitution of India, 1950 -
Part IX, 7th Schedule Entry 5, list II.
In the Uttar Pradesh Kshetra Panchayats and Zila
Panchayats Adhiniyam, 1961, for initiation of no-
• Judgment Recd. On 24.7.2010.
585
G
H
586
SUPREME COURT REPORTS
[2010] 7 S.C.R.
A
confidence motion in reference to Kshettra Samiti/
Panchayat, the block period was of 12 months and the
majority of more than half of the total number of members
of Kshettra Samiti was required. The 1961 Act was
amended several times in 1965, 1976, 1990, 1994 and
B
1998. In 2007 again by Act No. 44 of 2007, for initiation of
no-confidence motion, the block period of 'two years' was
substituted by 'one year' and as regard the provision
relating to the majority for moving no-confidence motion,
the words 'not less than two-third' was substituted by
c words 'more than half'. The appellants challenged the
constitutional validity of U.P. Panchayat Laws
(Amendment) Act, 2007. The High Court upheld the same.
Hence these appeals.
Appellants contended that there is no concept of noD confidence motion in the detailed constitutional provision
under Chapter IX of the Constitution, thus, the
incorporation of the said provision in the statute militates
against the principles of Panchayti Raj Institution; and
that the substitution of the provision 'more than half' in
E
place of 'not less than two thirds' and the words 'one year'
in place of 'two years' in ss. 15 and 28 of the amendment
Act dilutes the principle of stability and continuity which
are main purposes behind the object and reasons of the
Constitutional amendments in Part IX of the Constitution.
F
Dismissing the appeals, the court
HELD: 1. The constitutional validity of the U.P.
Panchayat Laws (Amendment) Act, 2007 (U.P. act 44 of
2007) is upheld. Considering all the aspects, there. is no
G reason to take a view different from the one taken by the
High Court. The judgment of the High Court is upheld. All
interim orders are vacated. [Paras 110 and 111] [623-AB; 622-H]
H
2.1. Under the Constitutional scheme introduced by
BHANUMATI ETC. ETC. v. STATE OF U.P. TR. ITS
587
PRINCIPAL SECY.
the 73rd Amendment Government State is no longer a
A
service provider but is a felicitator for the people to
initiate development on the basis of equity and social
justice and for the success of the system people have to
be sensitized about their role and responsibility in the
system. Thus, the composition of the Panchayat; its
B
function, its election and various other aspects of its
administration are now provided in great detail under the,
Constitution with provisions enabling the State
Legislature to enact laws to implement the Constitutional
mandate. Thus, formation of Panchayat and its c
functioning is now a vital part of the Constitutional
scheme under Part IX of the Constitution. The object and
the reasons of Part IX are to lend status and dignity to
Panchayati Raj Institutions and to impart certainty,
continuity and strength to them. [Paras 52, 53 and 75]
0
[608-G-H; 609-A-B; 614-G]
.
2.2. A Constitution is not to give all details of the
provisions contemplated under the scheme of
amendment. In the 73rd amendment of the Constitution,
under various articles, like Articles 243A, 243C(1 ), (5),
E
2430(4), 243X(6), 243F(1) (6), 243G, 243H, 2431 (2), 243J,
243(K) (2), (4) of the Constitution, the legislature of the
State has been empowered to make law to implement the
Constitutional provisions. Article 243C(5) provides for
election of Chairperson. Therefore, the submission that
F
the provision of no-confidence motion against the
Chairman, being not in the Constitution, cannot be
provided ii1 the statute, is wholly unacceptable when the
Constitution specifically enables the State Legislature to
provide the details of election of the Chairperson. [Paras
<?
57, 58 and 59] [609-G-H; 610-C-D]
2.3. The statutory provision of no-confidence motion
against the Chairperson is a pre-Constitutional provision
and was there in section 15 of the 1961 Act. The provision
for no-confidence motion against the Chairperson was
H
588
SUPREME COURT REPORTS
[2010] 7 S.C.R
A never repealed by any competent legislature as being
inconsistent with any of the provisions of Part IX. On the
other hand by subsequent statutory provisions the said
provision of no-Confidence has been confirmed with
some ancillary changes but the essence of the noB confidence provision was continued. Thus, the provision
of no-confidence is not inconsistent with Part IX of the
Constitution. [Paras 60, 62 and 66] [610-D-E; 611-A-B;
612-B]
C
2.4. The provision of Article 243N of the Constitution
makes it clear if the Panchayat laws, in force in a State
prior to Constitutional Amendment, contain provisions
which are inconsistent with Part IX, two consequences
will follow: those provisions will continue until amended
or repealed by competent legislature or authority, and
D those provisions will continue until one year from
commencement of the Constitution amendment, if not
repealed earlier. [Para 63] [611-D-E]
2.5. The submissions by appellants cannot be
E accepted in view of a very well known Constitutional
Doctrine, namely, the Constitutional doctrine of silence.
[Para 67] [612-C]
F
The Silence of Constitutions (Routledge, London and
New York) by Michael Folley, referred to.
2.6. A Constitution which professes to be democratic
and republican in character and which brings about a
revolutionary change by 73rd Constitutional amendment
by making
detailed provision for democratic
G decentralization and self Government on the principle of
grass root democracy cannot be interpreted to exclude
the provision of no-confidence motion in the respect of
the office of the Chairperson of the Panchayat just
because of its silence on that aspect. [Para 69] [612-GH H; 613-A]
BHANUMATI ETC. ETC. v. STATE OF U.P. TR. ITS
589
PRINCIPAL SECY.
2.7. The provision of no-confidence was a pre-73rd
A
Amendment statutory provision and that was continued
even after the 73rd Amendment in keeping with mandate
of Article 243N. This continuance of the no-confidence
provision, was not challenged by the appellants. The
High Court noted the said aspect. [Para 70] [613-8]
B
2.8. The submission that as a result of the impugned
amendment stability and dignity of the Panchayati Raj
Institution has been undermined is not well founded. As
a result of no-confidence motion the Chairperson of a
Panchayat loses his position as a Chairperson but he
C
remains a member, and the continuance of Panchayat as
an institution is not affected in the least. Going by the
said tests, no lack of legislative competence is found on
the part of the State Legislature in enacting the impugned
amendment Act. [Paras 72 and 73] [614-D-E]
D
2.9. If a no-confidence motion is passed against the
chairperson of a Panchayat, he/she ceases to be a
Chairperson, but continues to be a member of the
Panchayat and the Panchayat continues with a newly
elected Chairperson. Therefore, there is no institutional
E
set back or impediment to the continuity or stability of the
Panchayati Raj Institution. [Para 76] [614-H; 615-A]
2.10. These institutions must run on democratic
principles. In democracy all persons heading public
bodies can continue provided they enjoy the confidence
F
of the persons who comprise such bodies. This is the
essence of democratic republicanism. This explains why
this provision of no-confidence motion was there in the
Act of 1961 even prior to the 73rd Constitution
amendment and has been continued even thereafter.
G
Similar provisions are there in different States in India.
Such a provision is wholly compatible and consistent
with the rejuvenated Panchayat contemplated in Part IX
of the Constitution and is not at all inconsistent with the
same. [Paras 77 and 84] [615-8-C; 616-B]
H
590
SUPREME COURT REPORTS
[201 O] 7 S.C.R.
A
2.11. Democracy demands accountability and
transparency in the activities of the Chairperson
especially in view of the important functions entrusted
with the Chairperson in the running of Panchayati Raj
Institutions. Such duties can be discharged by the
B Chairperson only if he/she enjoys the continuous
confidence of the majority members in the Panchayat. So
any statutory provision to demonstrate that the
Chairperson has lost the confidence of the majority is
conducive to public interest and adds strength to such
c bodies of self Governance. Such a statutory provision
cannot be called either unreasonable or ultra vires Part
IX of the Constitution. [Para 85] [616-C-D]
2.12. Any head of a democratic institution must be
prepared to face the test of confidence. Neither the
D democratically elected Prime Minister of the Country nor
the Chief Minister of a State is immune from such a test
of confidence under the Rules of Procedure framed
under Articles 118 and 208 of the Constitution. Both the
Prime Minister of India and Chief Ministers of several
E States heading the Council of Ministers at the Centre and
in several States respectively have to adhere to the
principles of collective responsibilities to their respective
houses in accordance with Articles 75(3) and 164(2) of the
Constitution. [Para 86] [616-E-F]
F
2.13. There is vast difference in Constitutional status
and position between the post of Chairperson of a
Panchayat and the President. The two posts are not
comparable at all by any standards. Even the President
G of India is subject to impeachment proceedings under
Article 61 of the Constitution. No one is an 'imperium in
imperio' in the Constitutional set up. [Para 88] [617-A-B]
2.14. The submission that 2007 Amendment Act lacks
legislative competence has no merit. The relevant
H legislative entry in respect of Panchayat is in Entry 5, list
BHANUMATI ETC. ETC. v. STATE OF U.P. TR. ITS
591
PRINCIPAL SECY.
II of the 7th Schedule. The Entry 5 of List II of the 7th
A
Schedule is wide enough to authorize legislation of noconfidence against the Chairperson of the Panchayat. It
is well known that legislative entry is generic in nature
and virtually constitutes the legislative field-and has to be
very broadly construed. These entries demarcate 'areas',
B
'fields' of legislation within which the respective laws are
to operate and do not merely confer legislative power as
much. The words in the entry should be held to extend ·
to all ancillary and subsidiary matters which can be
reasonably said to be encompassed by it. [Paras 94, ~.~ C
and 97] [618-G-H; 619-G; A-B]
Diamond Sugar Mills Limited and Anr. vs. The State of
Uttar Pradesh and Anr. AIR 1961 SC 652; State of Tamil
Nadu vs. Mis. Payarelal Malhotra and Ors. 1976 (1) SCC 834;
Commissioner of Sales Tax_M. P. vs. Popular Trading D
Company, Ujjain 2000 (5) SCC 511, distinguished.
Hans Muller of Nurenburg vs. Superintendent,
Presidency Jail, Calcutta and Ors. AIR 1955 SC 367;
Navinchandra Mafatlal, Bombay vs. Commissioner of Income
E
Tax, Bombay City AIR 1955 SC 58; Ji/ubhai Nanbhai
Khachar etc. etc. vs. State of Gujarat and Anr. AIR 1995 SC
142, relied on.
Authorized Officer, Thanjavur and another vs. S.
Naganatha Ayyar and Ors. (1979) 3 SCC 466; Mohan Lal
F
Tripathi vs. District Magistrate, Rai Bareilly and Ors. 1992 (4)
SCC 80; Ram Beti vs. District Panchayat Raj Adhikari and
Ors.1998 (1) SCC 680; State of Bihar and Ors. vs. Bihar
Distillery Limited JT 1996 (10) S.C. 854; Dharam Dutt and
Ors. vs. Union of India and Ors. (2004) 1 SCC 712; State of G
Gujarat vs. Mirzapur Moti Kureshi Kassab Jamal and Ors.
(2005) 8 sec 534, referred to.
\
Seaford Court Estates Ltd. vs. Asher 1949 (2) K.B. 481,
referred to.
. H
592
SUPREME COURT REPORTS
[2010] 7 S.C.R.
A
Case Law Reference:
(1979) 3 sec 466
Referred to.
Para 43
1992 (4) sec 80
Referred to.
Para 89
B
1998 (1) sec 680
Referred to.
Para 92
AIR 1955 SC 367
Relied on.
Para 95
AIR 1955 SC 58
Relied on.
Para 95
AIR 1995 SC 142
Relied on.
Para 95
c
AIR 1961 SC 652
Distinguished,
Para 96
1976 (1) sec 834
Distinguished,
Para 98
2000 (5) sec 511
Distinguished.
Para 101
D
JT 1996 (10) S.C. 854 Referred to.
Para 103
1949 (2) K.B. 481
Referred to.
Para 104
(2004) 1 sec 112
Referred to.
Para 106
(2005) 8 sec 534
Referred to.
Para 108
E
CIVIL_ APPELLATE JURISDICTION : Civil Appeal Nos.
4135-4152 of 2010.
From the Judgment and Order dated 6.2.2009 of the High
Court of Judicature at Allahabad, Lucknow Bench Lucknow in
F W.P. Nos. 7417, 7924, 7940, 8124, 8260, 8387 and 8796 of
2007, 308, 461, 463, 1101, 1657, 1908, 2494, 3140, 3457,
4865 and 5330 of 2008.
WITH
G C.A. Nos. 4153, 4154-55, 4156-57, 4159-64, 4165, 4166,
4167, 4168, 4169, 4170, 4171, 4172, 4173, 4174-75, 4176,
4177, 4178 of 2010.
Sunil Gupta, Mohit Chaudhary, Tanmaya Agarwal, Puja
H
BHANUMATI ETC. ETC. v. STATE OF U.P. TR. ITS
593
PRINCIP.t'.L SECY.
Sharma, Ramesh Gopinathan, A. Das, Bharat Singh, Rakesh. A
Rao, Minakshi, Vij, Abhijat P. Medh, Abha R. Sharma, Ashok
Kumar Singh, Anil Kumar Pandey, Kamlesh Pandey, K.L.
Janjani, Pankaj Singh, Praveen Agrawal, AP & J Chambers for
the Appellants.
Dinesh Dwivedi, Shail Kr. Dwivedi, AAG, Niranjana Singh,
B
Shalini Kumar, Shrish Kumar Misra, Shivpati B. Pandey,
Vishwajit Singh, Ritesh Agarwal, Siddharth Sengar, Abhindra
Maheshwari, Samir Ali Khan, Gaurav Dhama, Anjani Kumar
Singh, P.K. Jain, D.K. Goswami, Gajinder Giri, Shiv Sagar
Tiwari, Sahrya & Co., Mridula Ray Bharadwaj, Ashok K .. C
Mahajan and Rajeev Kumar Bansal for the Respondents.
The Judgment of the Court was delivered by
GANGULY, J. 1. These appeals have been filed assailing
0
the judgment dated 6th February, 2009 by the Lucknow Bench
of Allahabad High Court whereby the High Court upheld the
Constitutional validity of U.P. Panchayat Laws (Amendment)
. Ordinance, 2007 (U.P. Ordinance 26 of 2007) which later on
became U.P. Panchayat Laws (Amendment) Act, 2007 (U.P.
Act 44 of 2007). As the validity of the said amendment was in
issue in all the appeals, they were heard together and are.
decided by this judgment.
E
2. ln the course of argument before this Court factual
controversies were not very much raised. The appeals were
F
mostly argued on the legality of the amendment from various
angles which will be considered hereinabelow.
3. The administration of Kshetra Samities and Zila
Parishads in Uttar Pradesh (hereinafter, UP) is governed by
G
Uttar Pradesh Kshetra Panchayats and Zila Panchayats
Adhiniyam, 1961 (hereinafter, '1961 Act'). Prior to that there
was United Provinces Panchayat Raj Act, 1947. The 1961 Act
suffered several amendments in 1965, 1976, 1990, 1994, 1998
& 2007 by UP Act 16 of 1965, UP Act 37 of 1976, UP Act 20
H
594
SUPREME COURT REPORTS
[2010) 7 S.C.R.
A
of 1990, UP Act 9 of 1994 and UP Act 44 of 2007 respectively.
B
The 1994 amendment b'f UP Act 9 of 1994 was in respect of
both the 1947 and 19&1 Acts. That amendment was made in
keeping with the objectives incorporated in the Constitution
(73rd Amendment) Act, 1992.
4. Several aspects of the amendment act were
challenged. Firstly, it was challenged that the offices of "UpPramukh", "Senior Up-Pramukh", 'Junior Up-pramukh" and
"Upadhyaksha" have been omitted by Section 9 of the
Amendment Act, being UP Act 44 of 2007 (hereinafter, the
C
amendment Act).
5. Similarly amendment was made to United Provinces
Panchayat Raj Act, 1947 by Section 2 of the Amendment Act.
0
6. For a proper appreciation of the effect of amendment,
Section 2 of the amendment Act is set out:
"In the United Provinces Panchayat Raj Act, 194 7,
hereinafter in this chapter referred to as the principal Act,
the word "Up-Pradhan" wherever occurring including the
E
marginal headings, shall be omitted."
F
G
H
7. There has been a general amendment to 1961 Act by
Section 9 of the amendment Act. Section 9 is therefore set out:
"In the Uttar Pradesh Kshellr a Pancllayats and Zila
Panchayats Adhiniyam. 1961, hereinafter in this chapter
referred to as the principal Act, the words "Up-Pramukh",
"Senior Up Pramukh'', "Junior Up Pramukh" and
"Upadhyaksha" wherever occurring including the marginal
headings and Schedules, shall be omitted."
8. Challenging the said amendment, it was urged by the
learned counsel that by bringing about such amendment, the
essence of the Panchayati principles has been eroded and
provisions have been made for executive interference.
BHANUMATI ETC. ETC. v.' STATE OF U.P. TR. ITS
595
PRINCIPAL SECY. [ASOK KUMAR GANGULY, J.]
9. The learned counsel further urged that such amendment
A
has been made in total contravention of the principle enshrined
in Part IX of the Constitution. It was urged that Part IX of the
Constitution provides for a three tire structure of Panchayat
administration and the reasons for such a three tire is to
minimize the scope of executive interference. It was urged if
B
the Pradhan or Pramukh of the unit of governance in Panchayat
is, for any ;eason, removed or disqualified, from running the
administration, the up-pradhan or the up-pramukh, prior to such
amendment could have taken over, whereas the abolition of
those offices will pave the way of executive interference.
c
10. Challenging the amendment it was further urged that
there is no concept of no-confidence motion in the detailed
constitutional provision under Chapter IX of the Constitution.
Therefore, the incorporation of the said provision in the statute
militates against the principles of Panchayti Raj Institution.
Apart from that the substitution of the provision 'more than half
in place of 'not less than two thirds' and the words 'one year'
in place of 'two years' in Sections 15 and 28 of the amendment
Act further dilutes the principle of stability and continuity which
are main purposes behind the object and reasons of the
Constitutional amendments in Part IX of the Constitution.
11. The exact provisions of the aforesaid amendments by
the impugned amendment Act are as follows:
"In Section 15 of the principal Act,-
(a)
in sub-section (11) for the words "not less than two
thirds" the words "more than half" shall be
substituted.
(b)
In sub-section (12) and sub-section (13) for the
words "two years" the words "one year" shall be
substituted.
In Section 28 of the principal ActD
E
F
G
H
596
SUPREME COURT REPORTS
[2010) 7 S C.R
A
(a)
in sub-section (11) for the words "not less than two
B
c
D
E
thirds" the words "more than half" shall be
substituted.
(b)
in sub-section (12) and sub-section (13) for the
words "two years" the words "one year" shall be
substituted.
12. In order to appreciate these submissions this Court
may examine the genesis of the Constitutional provisions about
Panchayat prior to 73rd Amendment of the Constitution.
13. Prior to the Constitution (73rd Amendment) Act, 1992,
the Constitutional provisions relating to Panchayat was confined
to Article 40. Article 40, one of our Directive Principles, runs
as under:
"40. Organization of village Panchayats - The State takes
steps to organize village panchayats and endow them with
such powers and authority as may be necessary to enable
them to function as units of self government."
14. The Constitution's quest for an inclusive governance
voiced in the Preamble is not consistent w;th Panchayat being
treated merely as a unit of self-Government and only as part of
Directive Principle.
F
15. If the relevant Constituent Assembly Debates are
perused one finds even that Constitutional provision about
Panchayat was inducted after strenuous efforts by some of the
members. From the Debates we do not fail to discern a
substantial difference of opinion between one set of members
who wanted to finalize the Constitution solely on the
G Parliamentary model by totally ignoring the importance of
Panchayat principles and another group of members who
wanted to mould our Constitution on Gandhian principles of
village Panchayat.
H
16. The word 'Panchayat' did not even once appear in the
BHANUMATI ETC. ETC. v. STATE OF U.P. TR. ITS
597
PRINCIPAL SECY. [ASOK KUMAR GANGULY, J.]
draft Constitution. Graneville Austin in his treaties 'Indian
A
Constitution: Corner Stone of a Nation' (Oxford) noted that the
drafting Committee did not even discuss in its meetings the
alternative principles of Gandhian view of panchayat. The draft
Constitution was published on 26th February, 1948. (See page
34 in Austin)
B
17. One of the strongest critics of the draft Constitution was
Dr. Rajendra Prasad and he opined that "the village has been
and will even continue to be our unit in this country."
18. Subsequently other members like M.A. Ayangar and
C
N.G. Ranga also suggested some amendments to the draft
Constitution and both harped on the introduction of Panchayati
Raj principles. Their arguments quoted by Graneville Austin,
were on the following lines:
D
"The State shall establish self-governing Panchayats for
every village or a group of villages with adequate powers
and funds to give training to rural people in democracy and
to pave the way for effective decentralization of political
and economic power." (Page 36)
19. Mr. Ayangar expressed his views very strongly by
saying "Democracy is not worth anything, if once in blue moon
individuals are bro1-19ht together for one common purpose,
merely electing X, Y and Z to the assembly and then disperse."
20. Somewhat similar opinion was expressed by S.C.
Mazumdar and his views were, "the main sources of its (India's)
strength lies in 'revitalized' villages but he accepted that for real
purpose a strong unifying central authority is a necessity."
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21. The opinion expressed by S.C. Mazumdar thus struck
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a balance between Gandhian principles and the parliamentary
model of the Constitution.
22. However, under the strong pressure of criticism from
various members, the Assembly rather grudgingly accepted
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the Directive Principles. On 22nd November, 1948, K.
Santhanam moved the official amendment and that is how
Article 40, in its present form, came into existence. The
amendment was accepted by Dr. Ambedkar.
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23. About this article, Garneville Austin commented:
"The incorporation of Article 40 in the Constitution
has proved to have been less a gesture to romantic
sentiment than a bow to realistic insight. And the aim of
the article has long been generally accepted: if India is to
progess, it must do so through reawakened village life."
(Page 38 Supra)
24. Participating in the debates and supporting the
D amendments, some of the members made comments which
are still very pertinent in appreciating the roots of our
democratic policy on which is based the edifice of our
Constitutional democracy.
"Sir in my opinion the meaning of this Constitution
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would have been nothing so far as crores and crores of
Indian people are concerned unless there was some
provision like this in our Constitution. There is another point
also viz., for thousands and thousands of years the
meaning of our life in India as it has been expressed in
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various activities, was this that complete freedom for every
individual was granted. It was accepted that every
individual had got full and unfettered freedom; but as to
what the individual should do with that freedom there was
some direction. Individuals had freedom only to work for
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unity. With that freedom they are to search for unity of our
people. There was no freedom to an individual if he works
for disruption of our unity. The same principle was also
accepted in our Indian constitution from time immemorial.
Every village like organic cells of our body was given full
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freedom to express itself but at the same time with that
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freedom they were to work only to maintain and preserve
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the unity of India.
Sir our village people are so much familiar with this
system that if today there is our Constitution no provision
like this they would not have considered this as their own
Constitution or as something known to them, as something
which they could call their own Constitution or as
something known to them, as something which they could
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call their own country's Constitution. Therefore, Sir, I am
glad and I congratulate both my friend the Hon'ble Mr.
Santanam and the Hon'ble Dr. Ambedkar on moving this
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amendment as well as for acceptance of the same. Sir, I
commend this."
(Shri Surendra Mohan Ghosh: West Bengal: General)
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25. The opinion of Seth Govind Das from Central Provices
and Berar is equally relevant:
"Ours is an ancient, a very ancient country and the village
has had always an important position here. This has not
been so with every ancient country. In Greece, for instance,
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towns had greater importance than villages. The Republics
of Athens and Sparta occupy a very important place in the
world history today. But no importance was attached by
them to the villages. But in our country the village occupied
such an important position that even in the legends
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contained in most ancient books - the Upanishads - if
there are descriptions of forest retreats, of the sages,
there are also descriptions of villages. Even in Kautilya's
Arthashastra there are to be found references to our
ancient villages. Modern historians have also admitted this
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fact. We find the description of our ancient village
organization in 'Ancient Law' by Mr. Henry Man, 'Indian
Village Community' by Baden Powell and in 'Fundamental
Unity of India' by Sri. B.C. Pal. I would request the members
of this House to go through these books. They will come
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to know from these books the great importance, the village
have had in India since the remotest times. Even during
the Muslim rule villages were considered of primary
importance. It was during the British regime that the villages
fell into neglect and lost their importance. There was a
B
reason for this. The British Raj in India was based on the
support of a handful of people. During the British regime
provinces, districts, tehsils and such other units were
formed and so were formed the Taluqdaris, Zamindaris and
Malguzaris. The British Rule lasted here for so many years
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only on account of the support of these few people.
Just as Mahatma Gandhi brought about revolution in
every other aspect of this country's life so also he brought
about a revolution in village life. He started living in a village.
He caused even the annual Congress Sessions to be held
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in villages. Now that we are about to accept this motion I
would like to recall to the memory of the members of this
House a speech he had delivered here in Delhi, to the
Asiatic Conferences. He had then advised the delegates
of the various nations to go to Indian villages if they wanted
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to have the glimpse of the real India. He had told them that
they would not get a picture of real India from the towns.
Even today 80% of our population lives in villages and it
would be a great pity if we make no mention of our villages
in the Constitution."
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26. In other representative democracies of the world
committed to a written Constitution and rule of law, the
principles of self Government are also part of the Constitutional
doctrine. It has been accepted in the American Constitution that
G the right to local self-Government is treated as inherent in cities
and towns. Such rights cannot be taken away even by
legislature. The following excerpts from American Jurisprudence
are very instructive:-
"Stated differently, it has been laid down as a binding
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principle of law in these jurisdictions that a statute which
BHANUMATI ETC. ETC. v. STATE OF U.P. TR. ITS
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attempts to take away from a municipal corporation its
A
power of self-Government, except as to matters which are
of concern to the State as a whole, is in excess of the
power of the legislature and is consequently void. Under
this theory, the principle of home rule, or the right of selfGovernment as to local affairs, is deemed to have existed
B
before the constitution."
(Volume 56, American Jurisprudence, Article 125.)
27. Under 73rd Amendment of the Constitution, Panchayat
became an 'institution of self governance' which was previously
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a mere unit, under Article 40.
28. 73rd Amendment heralded a new era but it took nearly
more than four decades for our Parliament to pass this epoch
making 73rd Constitution Amendment - a turning point in the o
history of local self-governance with sweeping consequences
in view of decentralization, grass root democracy, people's
participation, gender equality and social justice.
29. Decentralization is perceived as a pre-condition for
preservation of the basic values of a free society.
Republicanism which is the 'sine qua non' of this amendment
is compatible both with democratic socialism and radical
liberalism. Republicanism presupposes that laws should be
made by active citizens working in concert. Price of freedom
is not merely eternal vigilance but perpetual and creative
citizen's activity.
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30. This 73rd Amendment is a very powerful 'tool of social
engineering' and has unleashed tremendous potential of social
transformation to bring about a sea-change in the age-old,
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oppressive, anti human and status quoist traditions of Indian
society. It may be true that this amendment will not see a
quantum jump but it will certainly initiate a thaw and pioneer a
major change, may be in a painfully slow process.
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31. in order to understand the purport of the 73rd
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Constitutional amendment in Part IX of the Constitution, it is
important to keep in view the Statements of Objects and
Reasons behind the amendment. Excerpts from the same are
set out:-
"THE CONSTITUTION(SEVENTY-THIRD AMENDMENT)
ACT, 1992
Statement of Objects and Reasons appended to the
Constitution (Seventy-second Amendment) Bill, 1991
which was enacted as the Constitution (Seventy-third
Amendment) Act, 1992
Though the Panchayati Raj Institutions have been in
existence for a long time, it has been observed that these
institutions have not been able to acquire the status and
dignity of viable and responsive people's bodies due to a
number of reasons including absence of regular elections,
prolonged suppressions, insufficient representation of
weaker sections like Scheduled Castes, Scheduled Tribes
and women, inadequate devolution of powers and lack of
financial resources.
Article 40 of the Constitution which enshrines one of
the Directive Principles of State Policy lays down that the
State shall take steps to organize village panchayats and
endow them with such powers and authority as may be
necessary to enable them to function as units of selfGovernment. In the light of the experience in the last forty
years and in view of the short-comings which have been
observed, it is considered that there is an imperative need
to enshrine the Constitution certain basic and essential
features of Panchayati Raj Institutions to impart certainty,
continuity and strength to them."
32. What was in a nebulous state as one of Directive
H Principles under Article 40, through 73rd Constitutional
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Amendment metamorphosed to a distinct part of Constitutional
A
dispensation with detailed provision for functioning of
Panchayat. The main purpose behind this is to ensure
democratic decentralization on the Gandhian principle of
participatory democracy so that the Panchayat may become
viable and responsive people's bodies as an institution of
8
governance and thus it may acquire the necessary status and
function with dignity by inspiring respect of common man.
33. In our judgment, this 73rd Amendment of the
Constitution was introduced for strengthening the perambular
vision of democratic republicanism which is inherent in the
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constitutional framework.
34. On a close perusal of the 73rd Constitutional
Amendment, one would be tempted to say that the vision of
Surendra Nath Banerjee, expressed almost a century ago,
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about our local self-Government has been revived.
35. From the proceeding of the Council of Governor
General of India (April 1913 to March 1914) we find, Surendra
Nath articulated:
" .. the village is the fundamental, the indestructible unit
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of the Indian Social system, which has survived the overthrow of dynasties and the fall of empires. Sir, our village
organizations carry the mind back to the dawn of human
civilization and the early beginning of local selfF
government. They are dead now, but the instinct is there,
deep down in the national consciousness, and under the
fostering care of a wise and beneficent government, such
as we now have it may be revivified into a living flame. Our
system of local self-government has been built up from the
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top. That, perhaps, was inevitable under the circumstances.
But the time has now come when it should be strengthened
from below and the foundations laid well and deep ..... :·
36. Unfortunately that time came very late and as late as
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about.
37. India has been and continues to be a predominantly
rural country. There are 5 lakh 78 thousand 430 villages in which
B 74% of her people, which is about 750 million, live. Out of this
village population 48% live below poverty line. Though our
Constitution professes to be a democratic republic but our rural
set up is largely feudal. The agrarian relationship of the majority
of the people is very weak and helpless compared with few land
holding families which control economic interest of larger
C sections of village society. Unfortunately our independence has
not been able to change our political priorities and dynastic
democratic pattern is the order of the day.
38. The vast majority of the rural masses still have to obey
D decisions taken by few people living in metropolitan centers
representing an alien culture and ethos.
39. Here it may not be out of context to remember what
was said by Bhagat Singh and Batukeshwar Dutta on 6th June,
E 1929 in their joint statement in connection with the criminal trial
they faced in Crown vs. Bhagat Singh. In paragraphs 7 and 8
of their joint statement, the great martyr Bhagat Singh said:
"7. I, Bhagat Singh was asked in the lower Court as to what
we meant by the word 'Revolution'. In answer to that
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question, I would say that Revolution does not necessarily
involve a sanguinery strife, nor is there any place in it for
individual vendetta. It is not the cult of the bomb and the
pistol. By Revolution we mean that the present order of
things which is based on manifest injustice must change.
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The producers or the labourers, inspite of being the most
necessary element of society are robbed by their
exploiters of the fruits of their labour and deprived of their
elementary right. On the one hand the peasant who grows
corn for all starves with his family, the weaver who supplies
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world markets with textile fabrics cannot find enough to
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cover his own and his children's bodies; the masons, the
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smith and the carpenters who rear magnificent palaces live
and perish in slums; and on the other the capitalists
exploiters, the parasites of society squander millions on
their whims. These terrible inequalities and forced disparity
of chances are heading towards chaos. This state of
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affairs cannot last; and it is obvious that the present order
of Society is merry-making on the brink of a volcano and
the innocent children of the Exploiters no less than millions
of the exploited are walking on the edge of a dangerous
precipice. The whole edifice of this civilization, if not saved
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in time, shall crumble. A radical change, therefore is
necessary; and it is the duty of those who realize this to
reorganize society on the socialistic basis. Unless this is
done and the exploitation of man by man and of nations
by nations, which goes marquerading as Imperialism, is
0
brought to end, the sufferings and carnage with which
humanity is threatened today cannot be prevented and all
talks of ending wars and ushering in an era of universal
peace is undisguised hypocricy. By revolution we mean the
ultimate establishment of an order of society which may
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not be threatened by such a breakdown; and in which the
sovereignty of the Proletariat should be recognized; and
as the result of which a world-federation should redeem
humanity from the bondage of capitalism and the misery
of imperial wars.
8. xxxxxxx
Revolution is the inalienable right of mankind.
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Freedom is the imprescriptable birth right of all. The
labourer is the real sustainers of society. The Soverignty
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of the people is the ultimate destiny of the workers.
For these ideals, and for these faith, we shall
welcome any suffering to which we may be condemned.
To the altar of this revolution we have brought our youth as
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incense; for no sacrifice is too great for so magnificent a
cause.
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We are content; we await the advent of the
Revolution 'Long live the Revolution'."
40. The ideas of Bhagat Singh, even if not wholly but
substantially have been incorporated in the preambular vision
of our Constitution. But the dream for which he sacrifised his
life has not been fulfilled and the relevance of what he said can
hardly be ignored. The ground realities, if at all, changed only
C marginally.
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41. Let these momentous words of a convict in British India
form part of the judicial record in the last Court of our
Democratic Republic, the largest democracy in the world.
42. The 73rd Amendment of the Constitution, this Court
thinks, is a forward step to bring about the radical changes in
our social structure which inspired the struggle of Bhagat Singh,
the great martyr.
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43. When faced with a challenge to interpret such laws,
Courts have to discharge a duty. The Judge cannot act like a
phonographic recorder but he must act as an interpreter of the
social context articulated in the legal text. The Judge must be,
in the words of Justice Krishna Iyer, "animated by a goal
F oriented approach" because the judiciary is not a "mere umpire,
as some assume, but an active catalyst in the Constitutional
scheme" [See Authorized Officer, Thanjavur and another vs.
S. Naganatha Ayyar and others, (1979) 3 SCC 466].
44.