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Supreme Court of India
THE HONOURABLE MR. JUSTICE G.S. SINGHVI & THE HONOURABLE MR. JUSTICE ASOK KUMAR GANGULY
Bhanumati etc. etc.
Versus
State of Uttar Pradesh through Its Principal Secretary
Civil Appeal Nos.4135-4152 of 2010 with C.A. Nos. 4153 of 2010, 4154-55 of 2010, 4156-57 of 2010, 4158 of 2010, 4159-64 of 2010, 4165 of 2010, 4166 of 2010, 4167 of 2010, 4168 of 2010, 4169 of 2010, 4170 of 2010, 4171 of 2010, 4172 of 2010, 4173 of 2010, 4174-75 of 2010, 4176 of 2010, 4177 of 2010, 4178 of 2010
Decided on : 04-05-2010
(1979) 3 SCC 466 – Relied upon
(b) Interpretation of Constitution – Article 243C(5) – Providing for election of Chairperson of Panchayat – In the manner provided by State Legislature – A Constitution is not to give all details of the provisions contemplated under the scheme of amendment – State Legislature amending its Panchayat Act to provide for removal of Chairman by no-confidence motion – Cannot be challenged on ground of the provision not being in Constitution – Moreover, it is a pre-Constitutional provision and was there in Section 15 of the 1961 Act. (Para 57 to 60)
(c) Uttar Pradesh Kshetra Panchayats and Zila Panchayats Adhiniyam, 1961 – Section 15 – Provision for removal of Chairperson by no-confidence motion – A pre-Constitution provision – Never repealed – Kept alive, rather confirmed with every amendment – Not inconsistent with part IX of the Constitution. (Para 62, 64, 66)
(d) Interpretation of Constitution – Constitutional doctrine of silence – Constitution does not elaborate on everything – 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 – The basic structure doctrine vis-à-vis Article 368 of the Constitution emerged out of this concept of silence in the Constitution – Merely because the Constitution does not contain provision of no-confidence motion in the respect of the office of the Chairperson of the Panchayat, it does not mean that it is excluded (Para 67, 69)
(e) Uttar Pradesh Kshetra Panchayats and Zila Panchayats Adhiniyam, 1961 (as amended by Act 44 of 2007) – Section 15 – Provision for removal of Chairperson by no-confidence motion – Cooling off period for no-confidence motion reduced from two years to one year and required majority reduced from ‘not less than two-thirds’ to ‘more than half’– Challenged – Since 1961 the cooling off period and requirement of majority has been swinging between the two ends – Reduction in the cooling off period or majority requirement does not undermine stability and dignity of Panchayati Raj Institution – By no-confidence motion only the Chairperson loses his position but still he remains a member – Continuance of Panchayat is not affected in any way – Impugned Amendment Act does not suffer from any lack of legislative competence on the part of the State Legislature – The provision is wholly compatible and consistent with Part IX of the Constitution. (Para 72, 73, 76, 84)
(f) Uttar Pradesh Kshetra Panchayats and Zila Panchayats Adhiniyam, 1961 (as amended by Act 44 of 2007) – Section 15 – No confidence motion against Chairperson – Statutory duties can be discharged by Chairperson only if he enjoys continuous confidence of majority of members – Provision requiring confidence conducive to public interest – Cannot be called ultra vires Part IX of the Constitution. (Para 85, 86)
(g) Uttar Pradesh Kshetra Panchayats and Zila Panchayats Adhiniyam, 1961 (as amended by Act 44 of 2007) – Section 15 – No-confidence against Chairperson – Appellant drawing comparison between Chairperson of Panchayat and President of India on ground of being elected for five years – President not subject to any vote of confidence – The two posts are not comparable at all – Nonetheless even President is subject to impeachment proceedings under Article 61 of the Constitution – No one is an ’imperium in imperio’ in our Constitutional set up. (Para 88)
(1992) 4 SCC 80; (1998) 1 SCC 680 – Relied upon
(h) U.P. Panchayat Laws (Amendment) Act, 2007 (U.P. Act 44 of 2007) – Constitutional validity – Legislative competence – Relevant entry is entry 5, List II, Seventh Schedule – Legislative entry, generic in nature – Demarcate ‘areas’, ’fields’ of legislation – Not merely confer legislative power as much – Words in the entry extend to all ancillary and subsidiary matters which can be reasonably said to be encompassed by it – Moreover, if the legislature has competence, the question of motive does not arise at all – UP Act 44 of 2007 held valid. (Para 94, 95, 107)
JT 1996 (10) SC 854; 1949 (2) KB 481; (2004) 1 SCC 712; (2005) 8 SCC 534 – Relied upon
AIR 1955 SC 367; AIR 1955 SC 58; AIR 1955 SC 142; AIR 1961 SC 652; (1976) 1 SCC 834; (2000) 5 SCC 511 – Distinguished
Facts of the case:
Constitutional validity of U.P. Panchayat Laws (Amendment) Ordinance, 2007 which later on became U.P. Panchayat Laws (Amendment) Act, 2007 is in question in these appeals.
Finding of the Court:
There is no infirmity in the judgment of the High Court.
Result:
Appeal dismissed.
Key Points: - The constitutional validity of the no-confidence motion against the Chairperson of Panchayats under the amended Uttar Pradesh Panchayat Laws is upheld (!) (!) . - The State Legislature has legislative competence to amend provisions regarding no-confidence motion in Panchayati Raj Institutions under Entry 5, List II of the Seventh Schedule (!) (!) . - The 'doctrine of silence' supports that the Constitution does not explicitly exclude no-confidence provisions for Panchayat offices, and such provisions can be validly introduced through statutes (!) (!) .
Judgment :-
Ganguly, J.
These appeals have been filed assailing 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.
2. In the course of argument before this Court factual controversies were not very much raised. The appeals were mostly argued on the legality of the amendment from various angles which will be considered hereinabelow.
3.The administration of Kshetra Samities and Zila Parishads in Uttar Pradesh (hereinafter, UP) is governed by Uttar Pradesh Kshetra Panchayats and Zila Panchayats Adhiniyam, 1961 (hereinafter, 1961 Act'). Prior to that there was United Provinces Panchayat Raj Act, 1947. The 1961 Act suffered several amendments in 1965, 1976, 1990, 1994, 1998 & 2007 by UP Act 16 of 1965, UP Act 37 of 1976, UP Act 20 of 1990, UP Act 9 of 1994 and UP Act 44 of 2007 respectively. The 1994 amendment by UP Act 9 of 1994 was in respect of both the 1947 and 1961 Acts. That amendment was made in keeping with the objectives incorporated in the Constitution (73rd Amendment) Act, 1992.
4. Several aspects of the amendment act were challenged. Firstly, it was challenged that the offices of "Up-Pramukh", "Senior Up-Pramukh", 'Junior Up-pramukh" and "Upadhyaksha" have been omitted by Section 9 of the Amendment Act, being UP Act 44 of 2007 (hereinafter, the amendment Act ).
5. Similarly amendment was made to United Provinces Panchayat Raj Act, 1947 by Section 2 of the Amendment Act.
6. For a proper appreciation of the effect of amendment, Section 2 of the amendment Act is set out: "In the United Provinces Panchayat Raj Act, 1947, hereinafter in this chapter referred to as the principal Act, the word "Up-Pradhan" wherever occurring including the marginal headings, shall be omitted."
7. There has been a general amendment to 1961 Act by Section 9 of the amendment Act. Section 9 is therefore set out: "In the Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961, hereinafter in this chapter referred to as the principal Act, the words "Up-Pramukh", "Senior Up Pramukh", "Junior Up Pramukh" and "Upadhyaksha" wherever occurring including the marginal headings and Schedules, shall be omitted."
8. Challenging the said amendment, it was urged by the learned counsel that by bringing about such amendment, the essence of the Panchayati principles has been eroded and provisions have been made for executive interference.
9. The learned counsel further urged that such amendment has been made in total contravention of the principle enshrined in Part IX of the Constitution. It was urged that Part IX of the Constitution provides for a three tire structure of Panchayat administration and the reasons for such a three tire is to minimize the scope of executive interference. It was urged if the Pradhan or Pramukh of the unit of governance in Panchayat is, for any reason, removed or disqualified, from running the administration, the up-pradhan or the up-pramukh, prior to such amendment could have taken over, whereas the abolition of those offices will pave the way of executive interference.
10. Challenging the amendment it was further urged that there is no concept of no-confidence motion in the detailed constitutional provision under Chapter IX of the Constitution. Therefore, the incorporation of the said provision in the statute militates against the principles of Panchayti Raj Institution. Apart from that the substitution of the provision 'more than half' in place of 'not less than two thirds' and the words 'one year' in place of 'two years' in Sections 15 and 28 of the amendment Act further dilutes the principle of stability and continuity which are main purpos
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