Supreme Court of India
BHANUMATI ETC. ETC.versusSTATE OF UTTAR PRADESH THROUGH ITS PRINCIPAL SECRETARY AND OTHERS
- Citation
- 2010 INSC 269
- Decided
- 4 May 2010
- Disposal
- Dismissed
- Bench
- G S SINGHVI
Holding
The U.P. Panchayat Laws (Amendment) Act, 2007, including its no‑confidence provisions, is constitutionally valid and within the legislative competence of the State.
Summary
The appellants challenged the constitutional validity of the Uttar Pradesh Panchayat Laws (Amendment) Act, 2007, which altered the procedure for a no‑confidence motion against the Chairperson of a Panchayat by reducing the block period to one year and changing the required majority from two‑thirds to more than half. The Supreme Court examined whether these changes violated Part IX of the Constitution, the doctrine of silence, and the legislative competence of the State under Entry 5 of List II of the Seventh Schedule. It held that the no‑confidence provision is a pre‑73rd‑Amendment statutory rule that was never repealed and is compatible with the constitutional scheme. The amendment does not undermine the stability or dignity of Panchayati Raj institutions, and the State Legislature had the requisite competence to enact it. Consequently, the Court upheld the amendment and dismissed the appeals.
Issues considered
- The constitutionality of the no‑confidence motion provisions introduced by the U.P. Panchayat Laws (Amendment) Act, 2007 under Part IX of the Constitution.
- Whether changing the majority requirement from two‑thirds to more than half and reducing the block period from two years to one year violates the object and reasons of Part IX.
- Whether the State Legislature possessed legislative competence under Entry 5, List II of the Seventh Schedule to enact such provisions.
- Whether the doctrine of constitutional silence bars the amendment.
- Whether the pre‑73rd‑Amendment provision on no‑confidence is inconsistent with the Constitution.
Legislation cited
- Constitution of Indias. Article 164(2), s. Article 243A, s. Article 243C(5), s. Article 243G, s. Article 243N, s. Article 61, s. Article 75(3)
- U.P. Panchayat Laws (Amendment) Act, 2007s. 15, s. 28
- Uttar Pradesh Kshetra Panchayats and Zila Panchayats Adhiniyam, 1961
Subjects
Panchayati RajNo‑confidence motionConstitutional validity73rd AmendmentPart IXLegislative competenceLocal self‑governmentDemocratic accountability
Judgment
[2010] 7 S.C.R. 585
BHANUMATI ETC. ETC. A
v.
STATE OF UTTAR PRADESH THROUGH ITS PRINCIPAL
SECRETARY AND OTHERS
(Civil Appeal Nos. 4135-4152 of 2010)
MAY 4, 2010*
B
[G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]
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.
G
In the Uttar Pradesh Kshetra Panchayats and Zila
Panchayats Adhiniyam, 1961, for initiation of no-
• Judgment Recd. On 24.7.2010.
585 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 no-
D 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-A-
B; 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 no-
B 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]
The Silence of Constitutions (Routledge, London and
New York) by Michael Folley, referred to.
F
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-G-
H 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
F
bodies can continue provided they enjoy the confidence
of the persons who comprise such bodies. This is the
essence of democratic republicanism. This explains why
this provision of no-confidence motion was there in the
Act of 1961 even prior to the 73rd Constitution
amendment and has been continued even thereafter. 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 no-
confidence 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
1998 (1) sec 680 Referred to. Para 92
B
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
JT 1996 (10) S.C. 854 Referred to. Para 103
D
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.
B
Dinesh Dwivedi, Shail Kr. Dwivedi, AAG, Niranjana Singh,
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.
E
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.
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.
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.
B
4. Several aspects of the amendment act were
challenged. Firstly, it was challenged that the offices of "Up-
Pramukh", "Senior Up-Pramukh", 'Junior Up-pramukh" and
"Upadhyaksha" have been omitted by Section 9 of the
Amendment Act, being UP Act 44 of 2007 (hereinafter, the
C amendment Act).
5. Similarly amendment was made to United Provinces
Panchayat Raj Act, 1947 by Section 2 of the Amendment Act.
6. For a proper appreciation of the effect of amendment,
0
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."
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
F
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."
G
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.
H
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. D
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 E
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,- F
(a) in sub-section (11) for the words "not less than two
thirds" the words "more than half" shall be
substituted.
G
(b) In sub-section (12) and sub-section (13) for the
words "two years" the words "one year" shall be
substituted.
In Section 28 of the principal Act-
H
596 SUPREME COURT REPORTS [2010) 7 S C.R
A (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
B
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.
c
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:
D "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."
E 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)
E
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."
F
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."
21. The opinion expressed by S.C. Mazumdar thus struck G
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 H
598 SUPREME COURT REPORTS
A that an article concerning the Panchayat should be included in
the Directive Principles. On 22nd November, 1948, K.
Santhanam moved the official amendment and that is how
Article 40, in its present form, came into existence. The
amendment was accepted by Dr. Ambedkar.
B
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
c 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
E 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
F 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
G 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
H freedom to express itself but at the same time with that
BHANUMATI ETC. ETC. v. STATE OF U.P. TR. ITS 599
PRINCIPAL SECY. [ASOK KUMAR GANGULY, J.]
freedom they were to work only to maintain and preserve A
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
B
Constitution or as something known to them, as something
which they could call their own Constitution or as
something known to them, as something which they could
call their own country's Constitution. Therefore, Sir, I am
glad and I congratulate both my friend the Hon'ble Mr.
Santanam and the Hon'ble Dr. Ambedkar on moving this C
amendment as well as for acceptance of the same. Sir, I
commend this."
(Shri Surendra Mohan Ghosh: West Bengal: General)
D
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, E
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 F
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 G
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 H
600 SUPREME COURT REPORTS (2010] 7 S C.R
A 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
C 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
D 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
E 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."
F
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
H principle of law in these jurisdictions that a statute which
BHANUMATI ETC. ETC. v. STATE OF U.P. TR. ITS 601
PRINCIPAL SECY. [ASOK KUMAR GANGULY, J.]
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 self-
Government 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 C
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. E
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 F
citizen's activity.
30. This 73rd Amendment is a very powerful 'tool of social
engineering' and has unleashed tremendous potential of social
transformation to bring about a sea-change in the age-old, G
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.
H
602 SUPREME COURT REPORTS [2010] 7 S.C.R.
A 31. in order to understand the purport of the 73rd
Constitutional amendment in Part IX of the Constitution, it is
important to keep in view the Statements of Objects and
Reasons behind the amendment. Excerpts from the same are
set out:-
B
"THE CONSTITUTION(SEVENTY-THIRD AMENDMENT)
ACT, 1992
Statement of Objects and Reasons appended to the
Constitution (Seventy-second Amendment) Bill, 1991
c 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
D 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
E
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
F endow them with such powers and authority as may be
necessary to enable them to function as units of self-
Government. In the light of the experience in the last forty
years and in view of the short-comings which have been
observed, it is considered that there is an imperative need
G 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
BHANUMATI ETC. ETC. v. STATE OF U.P. TR. ITS 603
PRINCIPAL SECY. [ASOK KUMAR GA.NGULY, J.]
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 C
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, D
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:
E
".. the village is the fundamental, the indestructible unit
of the Indian Social system, which has survived the over-
throw of dynasties and the fall of empires. Sir, our village
organizations carry the mind back to the dawn of human
civilization and the early beginning of local self- F
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 G
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
H
604 SUPREME COURT REPORTS [2010] 7 S.C.R.
A 1993 when 73rd Amendment of the Constitution was brought
about.
37. India has been and continues to be a predominantly
rural country. There are 5 lakh 78 thousand 430 villages in which
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
F 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.
G 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
h world markets with textile fabrics cannot find enough to
BHANUMATI ETC. ETC. v. STATE OF U.P. TR. ITS 605
PRINCIPAL SECY. (ASOK KUMAR GANGULY, J.]
cover his own and his children's bodies; the masons, the A
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 B
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 C
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
not be threatened by such a breakdown; and in which the E
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.
F
8. xxxxxxx
Revolution is the inalienable right of mankind.
Freedom is the imprescriptable birth right of all. The
labourer is the real sustainers of society. The Soverignty G
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
H
606 SUPREME COURT REPORTS [2010] 7 S.C.R.
A incense; for no sacrifice is too great for so magnificent a
cause.
We are content; we await the advent of the
Revolution 'Long live the Revolution'."
B 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.
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.
D 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.
E 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. The Panchayati Raj Institutions structured under the
G said amendment are meant to initiate changes so that the rural
feudal oligarchy lose their ascendancy in village affairs and the
voiceless masses, who have been rather amorphous, may
realize their growing strength. Unfortunately, effect of these
changes by way of Constitutional Amendment has not been
H fully realized in the semi-feudal set up of Indian politics in which
BHANUMATI ETC. ETC. v. STATE OF U.P. TR. ITS 607
PRINCIPAL SECY. [ASOK KUMAR GANGULY, J.]
still voice of reason is drowned in an uneven conflict with the A
mythology of individual infallibility and omniscience. Despite
high ideals of Constitutional philosophy, rationality in our polity
is still subordinated to political exhibitionism, intellectual timidity
and petty manipulation. The 73rd Amendment of the
Constitution is addressed to remedy these evils. B
45. The changes introduced by the 73rd Amendment of the
Constitution have given Panchayati Raj Institutions a
Constitutional status as a result of which it has become
permanent in the Indian Political system as a third Goverriment. C
/ I
46. On a careful reading of this ..trnendment, ilappears
that under Article 2438 of the Constitution, it/has been
mandated that there shall be Panchayat at the village,
intermediate and district levels in accordance with the
provisions of Part IX of the Constitution. D
47. Article 243C provides for composition of Panchayat
which contemplated the post of Chairperson.
48. Article 2430 provides for reservation of seats and
243E provides for duration of Panchayat. Article 243F E
enumerates the grounds of disqualification of membership of
the Panchayat and 243G prescribes the powers, authority and
responsibilities of Panchayat. There are several other
provisions relating to powers of the Panchayat to impose taxes
and for constitution of Finance Commission in order to review F
financial position of the Panchayat. The accounts of the
Panchayat are also to be audited as per Constitutional mandate
under Article 243J. There are detailed provisions for elections
of Panchayat under Article 243K. Article 2430 imposes the bar
to interference by Courts in electoral matters of the Panchayat. G
49. In this connection particular reference may be made
to the provision of Article 243G of the Constitution which is set
out below:
H
608 SUPREME COURT REPORTS [2010] 7 S.C.R.
A "243G. Powers, authority and responsibilities of
Panchayat. - Subject to the provisions of this Constitution
the Legislature of a State may, by law, endow the
Panchayats with such powers and authority and may be
necessary to enable them to function as institutions of self-
B government and such law may contain provisions for the
devolution of powers and responsibilities upon
Panchayats, at the appropriate level, subject to such
conditions as may be specified therein, with respect to.
(a) the preparation of plans for economic development and
c social justice;
(b) the implementation of schemes for economic
development and social justice as may be entrusted to
them including those in relation to the matters listed in the
D Eleventh Schedule."
50. The said article is to be read in conjunction with 11th
Schedule of the Constitution which came with the said 73rd
Amendment.
E 51. To alter the planning process of the country a statutory
planning body like District Planning Committee has been
created. To ensure regular election to these bodies Election
Commission has been created. In order to ensure people's
participation Gram Sabha, a body at the grass root level, has
F been constitutionally planned. A perusal of the Constitution
provision in the 73rd Amendment would show that the success
of the system does not depend merely on the power which has
been conferred but on the responsibility which has been
bestowed on the people.
G
52. Under the Constitutional scheme introduced by the 73rd
Amendment Government State is no longer a service provider
but is a felicitator for the people to initiate development on the
basis of equity and social justice and for the success of the
H system people has to be sensitized about their role and
BHANUMATI ETC. ETC. v. STATE OF U.P. TR. ITS 609
PRINCIPAL SECY. [ASOK KUMAR GANGULY, J.]
responsibility in the system. A
53. Thus the composition of the Panchayat, its function, its
election and various other aspects of its administration are now
provided in great detail under the Constitution with provisions
enabling the State Legislature to enact laws to implement the 8
Constitutional mandate. Thus formation of Panchayat and its
functioning is now a vital part of the Constitutional scheme under
Part IX of the Constitution.
G4. Opviol!sly such a system can only thrive on the
confidence of the people on those who comprise the system. C
55. In the background of these provisions, learned counsel
for the appellants argued that the provision of no-confidence,
being not in Part IX of the Constitution is contrary to the
Constitutional scheme of things and would run contrary to the o
avowed purpose of Constitutional amendment which is meant
to lend stability and dignity to Panchayati Institutions. It was
further argued that reducing the period from 'two years' to 'one
year' before a no-confidence motion can be brought further
unsettles the running of the Panchayat. It was further urged that E
under the impugned amendment that such a no-confidence
motion can be carried on the basis of a simple majority instead
of two thirds majority dilutes the concept of stability.
pg, This Court is not at all persuaded to accept this
argument on various grounds discussed below. F
57. A Constitution is not to give all details of the provisions
contemplated under the scheme of amendment. In the said
amendment, under various articles. like articles 243A. 243C(1 ).
(5), 2430(4), 243X(6}, 243F(1) (6), 243G, 243H, 2431 (2), G
243J, 243(K) (2). (4) of the Constitution, the legislature of the
State has been empowered to make law to implement the
Constitutional provisions.
58. Particularly Article 243C(5), which provides for election
of Chairperson, specially provides: H
610 SUPREME COURT REPORTS (2010] 7 S.C.R
A "243C Composition of Panchayats - xxx xxx
(5) The Chairperson of-
(a) a Panchayat at the village level shall be elected in such
manner as the Legislature of a State may, by law, provide;
B and
?(b) a Panchayat at the intermediate level or district level,
shall be elected by, and from amongst, the elected
members thereof.
c 59. Therefore, the argument that the provision of no-
confidence motion against the Chairman, being not in the
Constitution, cannot be provided in the statute, is wholly
unacceptable when the Constitution specifically enables the
State Legislature to provide the details of election of the
0
Chairperson.
60. It may be mentioned that the statutory provision of no-
co nfidence motion against the Chairperson is a pre-
Constitutional provision and was there in Section 15 of the 1961
E Act.
61. In this context, Article 243N of the Constitution in Part
IX is relevant and set out below:
"243N. Continuance of existing laws and Panchayats. -
F Notwithstanding anything in this Part, any provision of any
law relating to Panchayats in force in a Stale immediately
before commencement of the Constitution (Seventy-third
Amendment) Act, 1992, which is inconsistent with the
provisions of this Part, shall continue to be in force until
G amended or repealed by a competent Legislature or other
competent authority or until the expiration of one year from
such commencement whichever is earlier:
Provided that all the Panchayats existing immediately
H before such commencement shall continue till the
BHANUMATI ETC. ETC. v. STATE OF U.P. TR. ITS 611
PRINCIPAL SECY. [ASOK KUMAR GANGULY, J.]
expiration of their duration, unless sooner dissolved by a 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.
B
62. It is clear that the provision for no-confidence motion
against the Chairperson was never repealed by any competent
legislature as being inconsistent with any of the provisions of
Part IX. On the other hand by subsequent statutory provisions
the said provision of no-Confidence has been confirmed with C
some ancillary changes but the essence of the no-confidence
provision was continued. This Court is clearly of the opinion that
the provision of no-confidence is not inconsistent with Part IX
of the Constitution.
63. The provision of Article 243N of the Constitution makes D
it clear if the Panchayat laws, in force in a State prior to
Constitutional Amendment, contain provisions which are
inconsistent with Part IX, two consequences will follow:
(1) Those provisions will continue until amended or E
repealed by competent legislature or authority, and
{2) Those provisions will continue until one year from
commencement of the Constitution amendment, if
not repealed earlier.
F
64. Immediately after the Constitution amendment by way
of Part IX, came Uttar Pradesh Panchayat Laws (Amendment)
Act, 1994. This was enacted on 22.4.1994 to give effect to the
provisions of Part IX of the Constitution. But the pre-existing
provision of the no-confidence was not repealed. Rather it was G
confirmed with minor changes in subsequent amendment Acts
of 1998 being UP Act 20 of 1998 and which was further
amended in the impugned amendment Act of 2007 being UP
Act 44 of 2007.
65. The appellants have not challenged U.P. Act 20of1998 H
612 SUPREME COURT REPORTS [2010] 7 S.C.R.
A by which Section 15 of 1961 Act was continued in amended
version.
66. Therefore, the continuance of no-confidence provision
has not been challenged - what has been challenged is the
reduction of the period from 'two years' to 'one year' and the
8
requirement majority from "not less than two-thirds" to "more
than half'. It is thus clear that the statutory provision of no-
confidence is not contrary to Part IX of the Constitution.
67. Apart from the aforesaid reasons, the arguments by
·C appellants cannot be accepted in view of a very well known
Constitutional Doctrine, namely, the Constitutional doctrine of
silence. Michael Folley in his treaties on 'The Silence of
Constitutions' (Routledge, London and New York) has argued
that in a constitution "abeyances are valuable, therefore, not in
D spite of their obscurity but because of it. They are significant
for the attitudes and approaches to the Constitution that they
evoke, rather than the content and substance of their structures."
(Page 10) The learned author elaborated this concept further
by saying "Despite the absence of any documentary or material
E form, these abeyances are real and are an integral part of any
Constitution. What remains unwritten and intermediate can be
just as much responsible for the operational character and
restraining quality of a Constitution as its more tangible and
codified components". (Page 82)
F 68. Many issues in our constitutional jurisprudence evolved
out of this doctrine of silence. The basic structure doctrine vis-
a-vis Article 368 of the Constitution emerged out of this concept
of silence in the Constitution.
G 69. A Constitution which professes to be democratic and
republican in character and which brings about a revolutionary
change by 73rd Constitutional amendment by making detailed
provision for democratic decentralization and self Government
on the principle of grass root democracy cannot be interpreted
H to exclude the provision of no-confidence motion in the respect
BHANUMATI ETC. ETC. v. STATE OF U.P. TR. ITS 613
PRINCIPAL SECY. [ASOK KUMAR GANGULY, J.]
of the office of the Chairperson of the Panchayat just because A
of its silence on that aspect.
70. As noted above the provision of no-confidence was a
pre-73rd Amendment statutory provision and that was continued
even after the 73rd Amendment in keeping with mandate of
8
Article 243N. This continuance of the no-confidence provision,
as noted above was not challehged by the appellants. This
aspect has been noted by the High Court in the impugned
judgment. The High Court noted:
"The original Act of the 1961 provides block period of 12 C
months for initiation of no-confidence motion in reference
to Kshettra Samiti/Panchayat, which was amended in the
year 1965 by U.P. Act No. 16of1965 and the block period
was enhanced to 'two years' from '12 months'. Again in
the year 1990 the block period was reduced as the words D
'two years' was substituted by words 'one year' by U.P. Act
No. 20 of 1990. In the year 1998 U.P. Act No. 20of1998
again amended Section 15 and the block period was again
enhanced to 'two years'. In the year 2007 again by U.P.
Act No. 44 of 2007 the term 'two years' was substituted E
by 'one year' by virtue of which the block period of 'two
years' was reduced to 'one year'.
71. The amended provision for the required majority for no-
confidence motion also has been noted in impugned judgment
of the High Court. F
"The majority as provided in Section 15(11) of the Original
Act of 1961 for passing of no-confidence motion was 'more
than half of the total number of members of Kshettra
Samiti'. G
In the year 1994 by U.P. Act No. 1994 the term
'member' in Section 15(11) was substituted by 'elected
members' hence in 1994 also, the motion was to be
carried through with the support of more than half of the H
614 SUPREME COURT REPORTS [2010J 7 S.C.R.
A total number of elected members of Kshettra Panchayat.
In the year 1998 the required majority was enhanced
to 'two-third' from more than half as the word 'more than
half in Section 15(11) was substituted by the word 'not less
than two-third' by U.P. Act No. 20 of 1998.
B
Lastly, in the year 2007 again the provision relating
to the majority for moving no-confidence motion was
amended by U.P. Act No. 44 of 2007 and the words 'not
less than two-third' was substituted by the words 'more than
c half in Section 15(11 )."
72. The argument that as a result of the impugned
amendment stability and dignity of the Panchayati Raj Institution
has been undermined is also not well founded. As a result of
0 no-confidence motion the Chairperson of a Panchayat loses his
position as a Chairperson but he remains a member, and the
continuance of Panchayat as an institution is not affected in the
least.
73. Going by the aforesaid tests, as we must, this Court
E does not find any lack of legislative competence on the part of
the State Legislature in enacting the impugned amendment Act.
74. The learned counsel for the appellant cited several
judgments in support of the contention that the impugned
F amendment in relation to the provisions for no-confidence are
unreasonable and ultra vires the prov1s1ons of Part IX.
75. It has already been pointed out that the object and the
reasons of Part IX are to lend status and dignity to Panchayati
Raj Institutions and to impart certainty, continuity and strength
G to them.
76. The learned counsel for the appellant unfortunately, in
his argument, missed the distinction between an individual and
an institution. If a no~confidence motion is passed against the
H chairperson of a Panchayat, he/she ceases to be a
BHANUMATI ETC. ETC. v. STATE OF U.P. TR. ITS 615
PRINCIPAL SECY. [ASOK KUMAR GANGULY, J.]
Chairperson, but continues to be a member of the Panchayat A
and the Panchayat continues with a newly elected Chairperson.
Therefore, there is no institutional set back or impediment to
the continuity or stability of the Panchayati Raj Institution.
77. These institutions must run on democratic principles. B
In democracy all persons heading public bodies can continue
provided they enjoy the confidence of the persons who comprise
such bodies. This is the essence of democratic republicanism.
This explains why this provision of no-confidence motion was
there in the Act of 1961 even prior to the 73rd Constitution
amendment and has been continued even thereafter. Similar C
provisions are there in different States in India.
78. Section 211 of the Tamil tNadu Panchayats Act, 1994
contains a provision for motion of no-confidence in respect of
Vice-President of panchayat and Section 212 contains a D
provision for motion of non confidence in respect of chairman
or vice-chairman of panchayat union council.
79. In the Bombay Village Panchayats Act, 1958 under
Section 35 similar provision for motion of no-confidence is to E
be found.
80. In West Bengal Panchayat Act, 1973 under Section 12
there is a provision for the removal of Pradhan and Up-Pradhan
if he has lost the confidence of the members of the Gram
Panchayat. F
81. In M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam,
1993, Section 21 provides for No-confidence motion against
Sarpanch and Up-Sarpanch.
82. There is a similar provision of No-confidence motion G
against Sarpanch under Section 19 of the Punjab Panchayati
Raj Act, 1994 as also under Section 157 the Kerala Panchayat
Raj Act, 1994.
83. The Karnataka Panchayat Raj Act, 1993 Section 49 H
616 SUPREME COURT REPORTS (2010] 7 S.C.R.
A has similar provision of a motion of no-confidence against
Adhyaksha or Upadhyaksha of Gram Panchayat.
84. Such a provision is wholly compatible and consistent
with the rejuvenated Panchayat contemplated in Part IX of the
B Constitution and is not at all inconsistent with the same.
85. Democracy demands accountability and transparency
in the activities of the Chairperson especially in view of the
important functions entrusted with the Chairperson in the running
of Panchayati Raj Institutions. Such duties can be discharged
C by the Chairperson only if he/she enjoys the continuous
confidence of the majority members in the Panchayat. So any
statutory provision to demonstrate that the Chairperson has lost
the confidence of the majority is conducive to public interest and
adds strength to such bodies of self Governance. Such a
D statutory provision cannot be called either unreasonable or ultra
vires Part IX of the Constitution.
86. Any head of a democratic institution must be prepared
to face the test of confidence. Neither the democratically
E elected Prime Minister of the Country nor the Chief Minister of
· a State is immune from such a test of confidence under the
Rules of Procedure framed under Articles 118 and 208 of the
Constitution. Both the Prime Minister of India and Chief
Ministers of several States heading the Council of Ministers at
the Centre and in several States respectively have to adhere
F to the principles of collective responsibilities to their respective
houses in accordance with Articles 75(3) and 164(2) of the
Constitution.
87. The learned counsel for the appellant therefore
G compared the position of the Chairperson of a Panchayat with
that of the President of India and argued that both are elected
for five years and President's continuance in office is not subject
to any vote of no-confidence. The post of Chairperson should
have the same immunity.
H
BHANUMATI ETC. ETC. v. STATE OF U.P. TR. ITS 617
PRINCIPAL SECY. [ASOK KUMAR GANGULY, J.]
88. This is an argument of desperation and has been A
advanced, with respect, without any regard to the vast
difference in Constitutional status and position between the two
posts. The two posts are not comparable at all by any
standards. Even the President of India is subject to
impeachment proceedings under Article 61 of the Constitution. B
No one is an 'imperium in imperio' in our Constitutional set up.
89. In this matter various judgments have been cited by the
learned counsel for the appellant. Of those judgments only the
judgment in Mohan Lal Tripathi vs. District Magistrate, Rai C
Barei/ly & others [1992 (4) SCC 80] is on the qu~stion of the
no-confidence motion against President of the municipality
elected directly by the electorate. No-confidence motion was
passed by the board against the said President and not by the
electorate. That was challenged. This Court repelled the
challenge and upheld the no-confidence motion holding that the D
recall by the Board amounts to recall by the electorate itself.
90. Upholding the aforesaid provision of no-confidence
which is virtually a power of recall, this Court in Mohan Lal
Tripathi (supra) held that the recall of the elected representative, E
so long it is in accordance with law, cannot be assailed on
abstract laws of democracy. (Para 2, page 86 of the report)
91. Upholding the concept of vote of no-confidence in
Mohan Lal Tripathi (supra) this Court further elaborated the
F
concept as follows:
".. .Vote of no-confidence against elected representative
is direct check flowing from accountability. Today
democracy is not a rule of 'Poor' as said by Aristotle or of
'Masses' as opposed to 'Classes' but by the majority G
elected from out of the people on basis of broad franchise.
Recall of elected representative is advancement of
political democracy ensuring true, fair, honest and just
representation of the electorate. Therefore, a provision in
a statute for ·ecall of an elected representative has to be H
618 SUPREME COURT REPORTS [2010] 7 S.C.R.
A tested not on general or vague notions but on practical
possibility and electoral feasibility of entrusting the power
of recall to a body which is representive in character and
is capable of projecting views of the electorate. Even
though there was no provision in the Act initially for recall
B of a President it came to be introduced in 1926 and since
then it has continued and the power always vested in the
Board irrespective of whether the President was elected
by the electorate or Board. Rationale for it is apparent
from the provisions of the Act. .. "
c 92. In Ram Beti vs. District Panchayat Raj Adhikari &
others [1998 (1) SCC 680] this Court has upheld the provisions
of Section 14 of U.P. Panchayat Raj Act, 1947 as amended
by U.P. Act No. 9 of 1994 which empowers members of the
Gram Panchayat to remove the Pradhan of Gram Sabha by vote
D of no-confidence. This Court held that such a provision is not
unconstitutional nor does it infringe the principle of democracy
or provisions of Article 14. This decision was rendered in 1997,
which is after the incorporation of Part IX of the Constitution.
E 93. In fact, in Ram Beti (supra), this Court considered the
impact of 73rd Amendment and also took into consideration
the provisions of Article 243N introduced by 73rd Amendment.
The ratio in Mohan Lal Tripathi (supra) was also affirmed in
Ham Beti (supra).
F
94. In the background of this admitted position, the
argument that 2007 Amendment Act lacks legislative
competence has no merit. The relevant legislative entry in
respect of Panchayat is in Entry 5, list II of the 7th Schedule.
The said entry is:
G
"5. Local Government, that is to say, the constitution and
powers of municipal, corporations, improvement trusts,
district boards mining settlement authorities and other local
authorities for the purpose of local self Government or
H village administration."
BHANUMATI ETC. ETC. v. STATE OF U.P. TR. ITS 619
PRINCIPAL SECY. [ASOK KUMAR GANGULY, J.]
95. It is well known that legislative entry is generic in nature A
and virtually constitutes the legislative field and has to be very
broadly construed. These entries demarcate 'areas', 'fields' of
legislation within which the respective laws are to operate and
do not merely confer legislative power as much. The words in
the entry should be held to extend to all ancillary and subsidiary B
matters which can be reasonably said to be encompassed by
it. (See Hans Muller of Nurenburg vs. Superintendent,
Presidency Jail, Calcutta and others, AIR 1955 SC 367;
Navinchandra Mafatlal, Bombay vs. Commissioner of Income
Tax, Bombay City, AIR 1955 SC 58, and also the decision of C
this Court rendered in Jilubhai Nanbhai Khachar etc. etc. vs.
State of Gujarat and another reported in AIR 1995 SC 142 at
148].
96. About interpretation of entries in the 7th Schedule
reliance was placed by the learned counsel for the appellant. D
on the judgment of Constitution Bench of this court in Diamond
Sugar Mills Limited and another vs. The State of Uttar
Pradesh and another reported in AIR 1961 SC 652. In that case
the Court considered the meaning of the word 'local area' in
Entry 52 of the State List in the 7th Schedule. The Constitution E
Bench of this Court held that in considering the meaning of the
words in the 7th Schedule, the Oourt should bear in mind that
the entries of such schedule should be liberally interpreted as
they confer rights of legislation. But at the same time the Court
should be careful enough not to extend the meaning of the F
words beyond their reasonable connotation in an anxiety to
preserve the power of the legislature. On the basis of the above
interpretation this Court held that 'premises of a factory' is not
a 'local area'.
97. The said decision has no application in the present G
case in as much as Entry 5 of List II of the 7th Schedule is wide
enough to authorize legislation of no-confidence against the
Chairperson of the Panchayat.
98. The next judgment cited on this point was rendered in H
620 SUPREME COURT REPORTS (2010] 7 S.C.R
A the case of State of Tamil Nadu vs Mis. Payarelal Malhotra
and Others [1976 (1) sec 834].
99. In that decision meaning of the expression 'that is to
say' was discussed with reference to Stroud's Judicial
Dictionary.
B
100. Relying on Stroud, this Court held the expression 'that
is to say' is resorted to for clarifying and fixing the meaning of
what is defined. There is no difficulty about applying those
principles to the facts of this case. In Payarelal (supra), this
C Court was construing the relevant entry in the context of single
point Sales Tax subject to special conditions when imposed on
separate categories of specified goods. Therefore, there is
vast situational difference between the case in Payarelal
(supra) and the present one.
D
101. The last decision cited on this point was rendered in
the case of Commissioner of Sales Tax M.P. vs. Popular
Trading Company, Ujjain [2000 (5) SCC 511]. This was also
a case relating to Sales Tax and the expression 'that is to say'
has been used. This Court in explaining the purport of 'that is
E to say' referred to the ratio in Payarelal (supra). Even if we
accept the said ratio in construing the ambit of Entry 5 of List
II in the 7th Schedule, this Court finds that the impugned
provision of no-confidence against the Chairperson of the
Panchayat is very much encompassed within Entry 5 if we read
F the entry liberally and in accordance with well settled principles
of reading legislative entries in several lists of the 7th Schedule.
The decision on Popular Trading (supra) does not at all
advance the case of the appellant.
G 102. Learned counsel for the State of U.P. cited some
decisions to point out how the Court should consider the
challenge to the constitutional validity of a Statute. Some of the
decisions cited by the learned counsel are quite helpful and are
considered by this Court.
H
BHANUMATI ETC. ETC. v. STATE OF U.P. TR. ITS 621
PRINCIPAL SECY. [ASOK KUMAR GANGULY, J.]
103. In the case of State of Bihar & Ors. vs. Bihar Distillery A
Limited - JT 1996 (10) S.C. 854, this Court in paragraph 18
at page Nos. 865-866 of the report laid down certain principles
on how to judge the constitutionality of an enactment. This Court
held that in this exercise the Court should (a) try to sustain
validity of the impugned law to the extent possible. It can strike B
down the enactment only when it is impossible to sustain it; (b)
the Court should not approach the enactment with a view to pick
holes or to search for defects of drafting or for the language
employed; (c) the Court should consider that the Act made by
the legislature represents the will of the people and that cannot c
be lightly interfered with; (d) the Court should strike down the
Act only when the unconstitutionality is plainly and clearly
established; (e) the Court must recognize the fundamental
nature and importance of legislative process and accord due
regard and deference to it. This Court abstracted those D
principles from various judgments of this Court.
104. In State of Bihar (supra), this Court also considered
the observations of Lord Denning in Seaford Court Estates Ltd.
vs. Asher- [1949 (2) K.B. 481] and highlighted that the job of
a judge in construing a statute must proceed on the constructive E
task of finding the intention of Parliament and this must be done
(a) not only from the language of the statute but also (b) upon
consideration of the social conditions which gave rise to it (c)
and also of the mischief to remedy which the statute was passed
and if necessary (d) the judge must supplement the written word F
so as to give 'force and life' to the intention of the legislature.
105. According to Lord Denning these are the principles
laid down in Heydon's case and is considered one of the safest
guides today. This Court also accepted those principles. (See G
para 21 at page 867 of the report).
106. Reliance was also placed on another decision of this
Court in Dharam Dutt and Ors. vs. Union of India & Ors. -
(2004) 1 SCC 712. This judgment is relevant in order to deal
with the argument of the learned counsel for the appellants that H
622 SUPREME COURT REPORTS [2010] 7 S.C.R.
A in reducing the period for bringing the no-confidence motion
from 'two years' to 'one year' and then in reducing the required
majority from 2/3rd to simple majority, the legislature was
guided by the sinister motive of some influential Ministers to
get rid of a local leader who, as a Pradhan of Panchayat, may
B have become very powerful and competitor of the Minister in
the State.
107. In Dharam Dutt (supra) this Court held that if the
legislature is competent to pass a particular law, the motive
C which impelled it to act are really irrelevant. If the legislature has
competence, the question of motive does not arise at all and
any inquiry into the motive which persuaded Parliament into
passing the Act would be of no use at all. (See page 713 of
the report).
D 108. Reliance was also placed on the Constitution Bench
judgment of this Court in State of Gujarat vs. Mirzapur Moti
Kureshi Kassab Jamat and Ors. - (2005) 8 SCC 534. Chief
Justice Lahoti speaking for the Bench laid down in para 37,
page 562 of the report that the legislature is in the best position
E to understand and appreciate the needs of the people as
enjoined in the Constitution. The Court will interfere in legislative
process only when the statute is clearly violative of the right
conferred on a citizen under Part Ill or when the Act is beyond
the legislative competence of the legislature. Of course the
F Court must always recognize the presumption in favour of the
constitutionality of the statutes and the onus to prove its
invalidity lies heavily on the party which assails it.
109. 6Chief Justice Lahoti also laid down several
parameters in considering the constitutional validity of a statute
G at page No.562-563 of the report. One of the parameters which
is relevant in this case is however important the right of citizen
or an individual may be it has to yield to the larger interests of
the country or the community.
H 110. Considering all these aspects, this Court sees no
BHANUMATI ETC. ETC. v. STATE OF U.P. TR. ITS 623
PRINCIPAL SECY. [ASOK KUMAR GANGULY, J.]
reason to take a view different from the one taken by the A
Hon'ble High Court.
111. For the reasons aforesaid this Court upholds the
Constitutional validity of the U.P. Panchayat Laws (Amendment)
Act, 2007 (U.P. Act 44 of 2007) and the appeals are
8
dismissed. The judgment of the Hon'ble High Court is upheld
and affirmed. All interim orders are vacated. There shall be no
order as to costs.
N.J. Appeals dismissed.
c
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