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TMI Blog2004 (1) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt under Article 226 of the Constitution of India questioning certain provisions of A.P. Panchayat Raj Act, 1994 and certain Government Orders and Rules by filing W.P. No. 12348/2002. Federation for Empowerment of Local Government by its Presidium Member, Lok Satta by its General Secretary and Dr. Jayaprakash Narayana filed W.P.MP. No. 22300/2003 in W.P. No. 12348/2002 to implead them as Respondents 3 to 5 and in view of the averments made in the affidavit filed in support of the application the said W.P.M.P. No. 22300/2003 is allowed and proposed parties are impleaded as Respondents 3 to 5. The contesting parties had put in lengthy pleadings and also placed ample material before the Court in support of their respective contentions. Likewise, Prasanna, Chairperson, District Level Committee, Zilla Parishad, Nalgonda District filed P. No. 132567 2002 questioning Memo No. 32254/Mdl.II/ 2002-1, dated 18-7-2002. 2. Both the writ petitions were heard at length. The factual matrix as reflected in the respective pleadings of the parties, needs no repetition. Elaborate submissions were made by Sri S. Ramchandra Rao, Senior Counsel representing the petitioners, Sri S. Niranjan Reddy, repre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment of this Court in Shamsher Singh v. State of Punjab (1974) IILLJ 465 SC . In the decision referred in S.R. Bommai's case (supra) the Apex Court held at Para 107: The federal State is a political convenience intended to reconcile national unity and integrity and power with maintenance of the State's right. The end aim of the essential character of the Indian federalism is to place the nation as a whole under control of a national Government, while the States are allowed to exercise their sovereign power within the legislative and co-extensive executive and administrative sphere. The common interest is shared by the Centre and the local interests are controlled by the States. The distribution of the legislative and executive power within limits and co-ordinate authority of different organs are delineated in the organic law of the land, namely the Constitution itself. The essence of federalism, therefore, is distribution of the force of the State among its co-ordinate bodies. Each is organized and controlled by the Constitution. The division of power between the Union and the State is made in such a way that whatever has been the power distributed, legislative and execut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y A.V. Dicey, p.LXXVII). Thus the dominant characteristic of the British Constitution cannot be claimed by a Federal Constitution like ours. In State of M.P. v. Bharath Singh AIR 1967 SC 1170, it was held that the Indian Federal structure is founded on (1) Sovereignty of people with limited Government authority and (2) Distribution of power between three organs of the State -Legislature, Executive and Judicial, each organ having some check direct or indirect on the other. It is laid down by Prof. K.C. Wheare in Federal Government , 1963 Edition, that the most important point to ascertain whether a Constitution is Federal in character is whether the powers of the Government are divided between co-ordinate independent authority or not. In Constitutional Law of India 4th Edition, Silver Jubilee Edition, H.M. Servai, the learned author expressed the opinion that the most important feature of Federal Constitution is the distribution of legislative power. Even A.V. Dicey in his Introduction to the Study of the Law of Constitution, had expressed an opinion that the distribution of limited executive, legislative and judicial authority among bodies each co-ordinate with and independent of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution itself (A text book of Jurisprudence (1964) page 295). Power is of an encroaching nature, wrote Madison in 'The Federalist'. The encroaching power which the Federalists feared most was the legislative power and that, according to Madison, is the danger of all republics. Alien says that the history of both the United States and France has shown on many occasions that the fear was not unjustified (Alien, Law and Orders, p. 12). In Bansal v. State of Rajasthan [2003] 2 SCR 933, it was held by the Apex Court at Para 15 : It is true that this Court in interpreting the Constitution enjoys a freedom which is not available in interpreting a statute and, therefore, it will be useful at this stage to reproduce what Lord Diplock said in Duort Steels Ltd., v. Sirs (All.ER.at p.542c-d): It endangers continued public confidence in the political impartiality of the judiciary, which is essential to the continuance of the rule of law, if Judges, under the guise of interpretation, provide their own preferred amendments to statutes which experience of their operation has shown to have had consequences that members of the Court before whom the matter comes consider to be injuriou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of these Amendments would definitely go to show that though the intention is to make these Institutions more effective in their functioning, these Local bodies cannot be placed on par with Centre and States relationship vis-a-vis States and Local bodies relationship. Hence the stand that by introduction of 73rd and 74th Amendments, these Local bodies had attained such a Constitutional status so as to attract the concept of Federalism being the third tier apart from Union and States cannot be accepted. 7. The fundamentals of Federalism need not be further gone into, the same being irrelevant for the present purpose. It is no doubt true that there has been a cry relating to decentralization of powers and autonomy for these Institutions. While exercising powers of Judicial Review under Article 226 of the Constitution of India, in view of the parameters and limitations, this Court as Constitutional Court, though can examine the Constitutionality, legality or otherwise of a Legislation - be it a statute, a delegated Legislation, a Rule or a G.O., an Executive order or a Circular, as the case may be, cannot touch the areas of political decisions which are to be taken elsewhere to k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislative competence of the Legislature which has passed the enactment or there is contravention of any mandatory provision of the Constitution which imposes limitation upon the powers of Legislature. It is a fundamental and well settled principle that where the Constitutionality of a Legislation or provisions thereof are challenged, it is for such a party to establish the same and always Courts normally do lean in favour of the Constitutionality of a statute unless it is otherwise shown to be unconstitutional. In State of Jammu and Kashmir v. T.N. Khasa (1974) ILLJ 121 SC, it was held that there is always a presumption in favour of the Constitutionality of an Enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the Constitutional principles. 9. The provisions of the Act, G.Os. and Rules are challenged to be unconstitutional on the following grounds: 1. The State Legislature is bound to act in conformity with Article 243G of the Constitution which is mandatory. 2. The power to Legislate regarding the entries in the Eleventh Schedule are well conditioned and controlled and hence State cannot make any Legislation relating those e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8, G.O. Ms. No. No. 28 PR RD, dated 16.1.1998 and G.O. Ms. No. 29 PR RD dated 16.1.1998 of the A.P. Panchayat Raj Act, 1994 as illegal and unconstitutional for being in violation of the Seventy Third Constitutional Amendment with particular reference to Articles 243-G, H, I and N and further direct the respondents to take appropriate and immediate steps to discharge their Constitutional duties of giving effect to the same and for other consequential Constitutional measures to conform to the Constitutional requirements and pass such other order or orders as are deemed fit and proper in the circumstances of the case. W.P. No. 13256/2002: For the reasons stated in the accompanying affidavit it is just and necessary that this Hon'ble Court may be pleased to issue a Writ, Order, or direction more particularly in the nature of Writ of Mandamus declaring the action of the respondent calling for recordings in Proceeding in Memo No. 32254/Mdl.II/ 2002-1, dated 18-7-2002 and quash the same and pass such other order or orders as the Hon'ble Court may deem fit and proper in the circumstances of the case. 11. The concept of democracy is founded on the will of the people. Sovereignty alw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndment and the reasons which paved the way for introducing the Legislation. Section 276 of the Act dealing with Repeal and Savings had repealed The A.P. Gram Panchayats Act, 1964, The A.P. Mandala Praja Parishads, Zilla Parishads, Zilla Pranalika and Abhivrudhi Sameeksha Mandals Act, 1986, The A.P. Local Bodies Electoral Reforms Act, 1989. 13. Article 243(d) of the Constitution defines 'Panchayat' as In this Part unless the context otherwise requires 'Panchayat' means an institution (by whatever name called) of self-Government constituted under Article 243B, for rural areas. Article 243B(1) specifies that there shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of this Part. Articles 243C to 243Fdeal with composition of Panchayats, Reservation of seats, Duration of Panchayats etc., Disqualification for membership. Likewise, Articles 243H to 243O deal with powers to impose taxes by, and funds of, the Panchayats, Constitution of Finance Commission to review financial position, Audit of accounts of Panchayats, Elections to the Panchayats, Application to Union Territories, Part not to apply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Limited v. Agricultural Produce Market Committee, [2002] 1 SCR 441, the Apex Court while dealing with the procedure of interpretation of Constitution held that Constitution is deserved to be interpreted in a manner that it does not whittle down powers of the State Legislatures and preserves Federalism and an interpretation having the effect of making a particular entry, subject to any other entry though not so stated in the entry, deserves to be avoided unless that be the possible interpretation and in deciding the question of legislative competence, Constitution is not required to be interpreted with a narrow or pedantic approach. In Special Reference No. 1 of 2002 AIR 2003 SC 87, it was held that the concepts may change more than words themselves and the significance of change of concepts is vital and Constitutional issues are not solved by a mere appeal to meaning of words without an acceptance of line of their growth. In State of A.P. v. National Thermal Power Corporation Ltd. [2002] 3 SCR 278, the Apex Court while dealing with the aspect of overlapping entries in Seventh Schedule observed that it is the duly of the Court to reconcile the entries and bring about harmony between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-Judge Bench that Article 16(4) was only an enabling provision, that Article 16(4) was not a fundamental right and that it did not impose any Constitutional duty. It only conferred a discretion on the State. The passage in the above case reads as follows: Our conclusion therefore is that Article 16(4) does not confer any right on the petitioner and there is no Constitutional duty imposed on the Government to make a reservation for Scheduled Castes and Scheduled Tribes, either at the initial stage of recruitment or at the stage of promotion. In other words Article 16(4) is an enabling provision and confers a discretionary power on the State to make a reservation of appointments in favour of backward class of citizens which, in its opinion, is not adequately represented in the services of the State. For interpretation of Constitutional provisions and statutory construction reliance was placed on Navinchandra Mafatlal, Bombay v. Commissioner of Income Tax, Bombay City, [1954] 26 ITR 758(SC), Bengal Immunity Co. Ltd. v. State of Bihar, [1955] 2 SCR 603, Kavalappam Kottarathil Kochuni Moopil Nayar v. States of Madras and Kerala, [1960] 3 SCR 887, Kedar Nath Singh v. State of Bihar, AIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it, transgressed the limits of its Constitutional power. Such transgression may be patent, manifest or direct, but it may also be disguised, covert and indirect and it is to this latter class of cases that the expression colourable legislation has been applied in certain judicial pronouncements. The idea conveyed by the expression is that although apparently a Legislature in passing a statute purported to act within the limits of its powers, yet in substance and in reality it transgressed these powers, the transgression being veiled by what appears, on proper examination, to be a mere pretence or disguise. ........In other words, it is the substance of the Act that is material and not merely the form or outward appearance, and if the subject-matter in substance is something which is beyond the powers of that Legislature to legislate upon, the form in which the law is clothed would not save it from condemnation. The Legislature cannot violate the Constitutional prohibitions by employing an indirect method. 16. In Jilubhai Nanbhai Khachar v. State of Gujarat, AIR 1995 SC 142, it was held that it is settled law of interpretation that entries in the Seventh Schedule are not powers but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed even if these provisions are interpreted in the background of Constitution being treated always as a living document. Specific provision prevails over general provision (See Harakchand Ratanchand Banthia v. Union of India, [1970] 1 SCR 479, and the decision referred (supra) (South India Corporation Private Limited v. Secretary, Board of Revenue, Trivandrum and Anr.). Where the directive power itself flows from an enabling provision the resultant subordinate legislation cannot be found fault when the principal power itself is derived from the exercise of only a discretionary power and not from an imperative Constitutional mandate. In the decision referred (supra) (J.P. Bansal v. State of Rajasthan), it was held by the Apex Court at Paras 14 and 15 as follows: Where, however, the words were clear, there is no obscurity, there is no ambiguity and the intention of the Legislature is clearly conveyed, there is no scope for the Court to innovate or take upon itself the task of amending or altering the statutory provisions. In that situation the Judges should not proclaim that they are playing the role of a law-maker merely for an exhibition of judicial valour. They have to remember th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. State of Tamilnadu, it was held by the Apex Court: Certain rules have been evolved in this regard, and it is well settled now that the various entries in the three lists are not powers but fields of legislation. The power to legislate is given by Article 246 and other Articles of the Constitution. See the observations of this Court in Calcutta Gas Co. v. State of West Bengal AIR 1962 SC 1044 . The entries in the three lists of the Seventh Schedule to the Constitution are legislative heads or fields of legislation. These demarcate the area over which appropriate Legislature can operate. It is well settled that widest amplitude should be given to the language of these entries, but some of these entries in different lists or in the same list may overlap and sometimes may also appear to be in direct conflict with each other. Then, it is the duly of the Court to find out its true intent and purpose and to examine a particular legislation in its pith and substance to determine whether it fits in one or the other of the lists. See the observations of this Court in H.R. Banthia v Union of India, [1970] 1 SCR 479, Union of India v. H.S. Dhillon, [1972] 83 ITR 582 (SC) . The lists are de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w under Entry 36 bad. In my opinion, the decision in the case of 'Julius v. Bishop of Oxford' (1880) 5 AC 214) has no relevancy to the matter before us. In Municipal Council, Palai v. T.J. Joseph [1964] 2 SCR 87, the Apex Court observed: It is undoubtedly true that the Legislature can exercise the power of repeal by implication. But it is an equally well-settled principle of law that there is a presumption against an implied repeal. Upon the assumption that the Legislature enacts laws with a complete knowledge of all existing laws pertaining to the same subject the failure to add a repealing clause indicates that the intent was not to repeal existing legislation. Of course, this presumption will be rebutted if the provisions of the new Act are so inconsistent with the old ones that the two cannot stand together. As has been observed by Crawford on Statutory Construction, p.631, para 311: There must be what is often called 'such a positive repugnancy between the two provisions of the old and the new statutes that they cannot be reconciled and made to stand together'. In other words they must be absolutely repugnant or irreconcilable. Otherwise, there, can be no impli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The theory of implied repeal cannot be presumed (See Municipal Corporation of Delhi v. Shiv Shankar, 1971 CriLJ 680, Union of India v. Venkatesan, 2002 CriLJ 2790 . In Chief Justice, A.P. v. L.V.A. Dikshitulu, [1979] 1 SCR 26 the Apex Court held: Where two alternative constructions are possible the Court must choose the one which will be in accord with the other parts of the statute and ensure its smooth, harmonious working, and eschew the other which leads to absurdity, confusion, or friction, contradiction and conflict between its various provisions, or undermines, or tends to defeat or destroy the basic scheme and purpose of the enactment. These canons of construction apply to the interpretation of our Constitution with greater force, because the Constitution is a living, integrated organism, having a soul and consciousness of its own. The pulse beats emanating from the spinal cord of the basic framework can be felt all over its body, even in the extremities of its limbs. Constitutional exposition is not mere literary garniture, nor a mere exercise in grammar. As one of us (Chandrachud, J, as he then was) put it in Kesavananda Bharati's case AIR 1973 SC 1461 while interpreti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in for the local bodies. The Commission considered the suggestion to provide a Local List in the Seventh Schedule for giving fiscal autonomy to the local-self Government institutions. However, the Commission feels that it would be too early to consider such a proposal. The Commission, therefore, recommends that the Eleventh and Twelfth Schedules should be restructured in a manner that creates a separate fiscal domain for Panchayats and Municipalities. Accordingly Articles 243H and 243X should be amended making it mandatory for the Legislature of the States to make laws devolving powers to the Panchayats and Municipalities. 21. It is pertinent to note that the provisions of the Act are challenged on the ground that they are in contravention of Part IX of the Constitution only and not Part III of the Constitution. A careful reading of different provisions of Part IX would go to show that except the constitution of Gram Panchayats and reservations and elections thereof, all other aspects appear to be not imperative or mandatory and they are only enabling provisions. The Commission, in Chapter 9, while dealing with the Problems in Decentralisation and Devolution, had stated: With a vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Panchayats with such powers and authority as are necessary to enable them to function as institutions of self-Government and such law shall contain provisions for the devolution of powers and responsibilities upon Panchayats at the appropriate level, subject to such conditions as shall be specified therein, with respect to-- (a) preparation of plans for economic development and social justice; (b) the implementation of schemes for economic development and social justice as shall be entrusted the them including those in relation to the matters listed in the Eleventh Schedule. Similar amendments should be made in Article 243W relating to the powers, authority and responsibilities of Municipalities, etc. Reliance also was placed on certain portions of Lok Sabha and Rajya Sabha debates. In Lok Sabha debate, dated 1st December 1992, it was stated: At a broad level, we are seeking to provide a Constitutional guarantee to certain basic and essential features including regular elections to Panchayat Raj Institutions, representations in these bodies for Scheduled Castes, Scheduled Tribes and Women and devolution of financial and administrative powers with the co-operation of the States ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the mercy of the State Governments. What is its outcome. The State Governments enacted laws, constituted Municipal Committees, enacted Panchayati Acts but even today the head of the Panchayat or Sarpanch is on the mercy of the Government. If any complaint is there against him, a Sub-divisional Magistrate dismisses an elected Pradhan of a Gram Panchayat. I don't understand what sort of democracy is this. In the Rajya Sabha, on 23rd December, 1992 it was stated: Sir, as we know, the idea of the Bills is that there should be participation of people at the grass-root level in the development and in the administrative processes of the country. The idea of 'Panchayats' or 'Panch' is not a new idea. We know that the word 'Panch' means collective wisdom. It had been prevalent in the country even in the ancient period. We have evidence of it in the Dravidian Culture. We have all the evidence of the system of Panchayats and local bodies functioning in villages and in semi-urban areas and in 'zirgas' in the Dravidian Culture during the Mohinjadaro and Harappa civilizations and in the Tribal India, pre-Aryan India. There is evidence to show that even whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Legislative, Executive and Judicial functions. In Avinder Singh v. State of Punjab, [1979] 1 SCR 845, it was held that the Legislature is responsible and responsive to the people and its representatives, the delegate may not be and that is why excessive delegation and legislative hara kiri have been frowned upon by Constitutional Law. In Jalan Trading Co. v. Mill Mazdoor Sabha, (1966) IILLJ 546 SC, excessive delegation was dealt with. In Tinsukhia Electric Supply Co. Ltd. v. State of Assam, AIR 1990 SC 123, it was held that the Court may tear the veil if necessary to examine the allegation of colourable legislation or abuse of power. 23. Officialisation or bureaucratization of the Panchayat Raj Institutions is the main ground of attack. Much comment had been made on limited autonomy and optimum autonomy as well. Governance and administrative details as policy making and implementation thereof do fall within the purview of legislative power and executive power. It is no doubt true that in a given case, Court can definitely examine the impugned action and consider whether such action stands for legal scrutiny. The wholesale attack on different provisions of the Act cannot be sustai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch a duty by issuing a writ of mandamus. Reliance for the purpose was placed upon Comptroller and Auditor General of India, Gian Prakash v. K.S. Jagannathan [1986] 2 SCR 17 ) and also on Julius v. Lord Bishop (1880) 5 AC 214 (HL) which case was followed by this Court in Commr. of Police v. Gordhandas Bhanji [1952] 1 SCR 135 . We are unable to agree with the above contention. As pointed out earlier, the Constitution Bench of this Court in C.A. Rajendran v. Union of India (1968) IILLJ 407 SC held that Article 16(4) conferred a discretion and did not create any Constitutional duty or obligation. In fact, in that case, a mandamus was sought to direct the Government of India to provide for reservation under Article 16(4) in certain Class I and Class II services. The Government stated that in the context of Article 335 and in the interests of efficiency of administration at those levels, it was of the view that there should be no reservation. The said opinion of the Government was accepted by this Court as reasonable and mandamus was refused. Even in M.R. Balaji v. State of Mysore, AIR 1963 SC 649, the Constitution Bench declared that Article 16(4) conferred only a discretion. It is true ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceived the assent of the President on 30-4-1979 and more than two and a half years have already gone by without the Central Government issuing a notification for bringing Section 3 of the Act into force. But we find ourselves unable to intervene in a matter of this nature by issuing a mandamus to the Central Government obligating it to bring the provisions of Section 3 into force. The Parliament having left to the unfettered judgment of the Central Government the question as regards the time for bringing the provisions of the 44th Amendment into force, it is not for the Court to compel the Government to do that which, according to the mandate of the Parliament, lies in its discretion to do when it considers it opportune to do it. The executive is responsible to the Parliament and if the Parliament considers that the executive has betrayed its trust by not bringing any provision of the Amendment into force, it can censure the executive. It would be quite anomalous that the inaction of the executive should have the approval of the Parliament and yet we should show our disapproval of it by issuing a mandamus. The Court's power of judicial review in such cases has to be capable of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that as it may, the excessive official control and minimum participation of elected representatives is made a serious ground of attack. The total non-participation of any of the elected representatives in certain Rules had been specifically pointed out. Panchayat as Institution may have elected representatives and officials as well. It is true that in the policy making, to keep up the democratic spirit, the elected representatives must have the major sway and in the working of the system, the implementation may be left to the officials. It is also true that in the administration of Panchayat Raj Institutions, necessary control also may be essential and it is for the Legislature to decide by expressing its will through Legislation or subordinate Legislation to what extent such control should be. What had been pointed out are several inadequacies in this regard. When the object and spirit of a Constitutional Amendment are not contravened, a statutory provision or a G.O. cannot be held to be unconstitutional on the ground of inadequacy. In the working of the system, the State Government may have to take necessary steps to improve the system and in doing so if it is felt that the exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d correction, sanction and supersession. Consequentially the law clothes the State Government with considerable powers over almost every aspect of municipal working. 'Local self-Government, realistically speaking, is a simulacrum of Article 40 and democratically speaking a half-hearted euphemism; for in substance, these elected species are talking phantoms with a hierarchy of state officials hobbling their locomotion. Their exercises are strictly overseen by the State Government, their resources are precariously dependent on the grace of the latter, and their functions are fulfilled through a Chief Executive appointed by the State Government. Floor-level democracy in India is a devalued rupee, Article 40 and the evocative opening words of the Constitution notwithstanding. Grassroots never sprout until decentralization becomes a fighting creed, not a pious chant. What happens to Panchayats applies to municipalities....... 'This conspectus of provisions bring into bold relief the anaemic nature of municipal autonomy. Full-blooded units of self-Government, reflecting full faith in decentralized democracy uninhabited by a hierarchy of bureaucrats, is the vision of Article 40. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitutional mandate. Autonomy to these Institutions is only limited autonomy, be it fiscal or otherwise, and the Constitutional directive envisaged under Article 243G has to be interpreted as only a discretionary directive and nothing more. 27. Article 40 of the Constitution no doubt contemplates the State taking steps to organize Village Panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-Government. An argument was advanced that in the light of Article 40, if Article 243G is not mandatory, there is no necessity of introducing this Article in Part IX inasmuch as if it is to be interpreted as directory or discretionary, the position would have been the same even prior to the introduction of Part IX. This contention cannot be accepted for the reason that a provision of the Constitution normally may have to be read as it stands and cannot be interpreted as it ought to have been worded. This is neither the province of the Court nor the power of judicial review can be stretched that far so as to engulf a situation of this kind. In State of Bihar v. Bihar Distillery Ltd., AIR 1997 SC 1511, it was held that an Act of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Section 32(c) of the Act says: The executive authority shall exercise all the powers and perform all the functions specifically conferred or imposed on the executive authority by or under this Act and subject to all restrictions and conditions imposed by or under this Act, exercise the executive power for the purpose of carrying out the provisions of this Act and be directly responsible for the due fulfillment of the purpose thereof. Section 43 deals with Administration Report. Article 243H(a) of the Constitution reads: The Legislature of a State may, by law, authorize a Panchayat to levy, collect and appropriate such taxes, duties, tolls and fees in accordance with such procedure and subject to such limits. Section 60(1) and its proviso read: A Gram Panchayat shall levy in the village,-- (a) a house-tax; (b) kolagaram, or katarusum that is to say, tax on the village produce sold in the village by weight measurement or number subject to such rules as may be prescribed; (c) such other tax as the Government may, by notification, direct any Gram Panchayat or class of Gram Panchayats to levy subject to such rules as may be prescribed: Provided that no such notification shall be issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate at which the house tax is levied in pursuance of an order under Sub-section (1) or abolish such tax except with the previous sanction of the Government. Section 71 of the Act reads: Special tax leviable by a Gram Panchayat :--Subject to such rules as may be prescribed, a Gram Panchayat shall levy a special tax on houses at such rates as may be prescribed, to provide for expenses connected with the construction, maintenance; repair, extension and improvement of water or drainage works or the lighting of the public streets and public places, and other similar works. Section 137 of the Act reads: Power to compound offences :--(1) The Executive Authority may, subject to such restrictions and control, as may be prescribed compound for a sum not exceeding rupees five hundred, any offence against the provisions of this Act or any rule or bye-law made thereunder, which may by rules, be declared compoundable. (2) On payment of the amount by way of composition no further proceedings shall be taken or continued against the defaulter in regard to the offence or alleged offence so compounded. (4) Nothing in this section shall apply to election offences, Section 271 of the Act deals with Ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Mandal as may be prescribed. 29. The powers and functions of the Mandal Parishad Development Officers are dealt with in G.O. Ms. No. 489, PR RD (Estt.VII) Department, dated 3-12-1996, Section 174 of the Act deals with Budget of Mandal Parishad. G.O. Ms. No. 15 deals with relevant rules. Section 186of the Act deals with appointment of Chief Executive Authority and his powers and functions. Section 186(4)(d) and (j) read: Section 186(4)(d): Subject to the provisions of this Act, and the rules made thereunder, the Chief Executive Officer shall be responsible for implementing the resolutions of the Zilla Parishad and of the Standing Committees thereof. Section 186(4)(j): Subject to the provisions of this Act, and the rules made thereunder, the Chief Executive Officer shall implement such specific directions issued by the Zilla Parishad as it may think fit regarding the performance by him of any of the functions assigned to him under the Act: Provided that such directions are in conformity with the terms and conditions governing planning, community development and other developmental activities entrusted by the Government or any other authority; Section 193(1)(a) of the Act says: The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under any law made by the Legislature of the State. Section 199 of the Act deals with the Budget of the Zilla Parishad. G.O. Ms. No. 15 deals with rules prescribing the preparation of Budget of Mandal Parishads and Zilla Parishads in the Districts of Andhra Pradesh. Sub-sections (1) and (2) of Section 199 of the Act read: Sub-section (1): The Chief Executive Officer shall in each year, frame and place before the prescribed date, a budget showing the probable receipts and expenditure during the following year, and the Zilla Parishad shall sanction the budget, with such modifications, if any, as it thinks fit. Sub-section (2): The budget so sanctioned shall be submitted to the Government by the Chief Executive Officer through the Chairman on or before such date as may be fixed by the Government and if the Government are satisfied that adequate provision has not been made therein or that it is otherwise unsatisfactory for giving effect to the provisions of this Act, they shall have the power to approve the budget with such modifications as they may consider necessary to secure such provision. Section 249 of the Act deals with powers of Government to remove Sarpanch, President or Chair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and also against the protection and enhancement of the environment and by virtue of the Article 243-ZE and ZF of the Constitution, it is only a Metropolitan Planning Committee which shall be entitled to prepare a draft development plan for the metropolitan area as a whole or modify, revise or alter any existing master plan. The argument that by virtue of Article 243-ZE and 243-ZF of the Constitution, the making or amending of development plans for the metropolitan area is confined to the Metropolitan Planning Committee and the provisions of the Urban Areas Development Act, 1975 are not available, is misconceived. The provisions of the Constitution relied on by the petitioner form part of Part IX-A of the Constitution are in the nature of guidelines to be followed by the State Legislatures as and when the Legislatures frame laws relating to Municipalities. No law has been yet made providing for the constitution of Metropolitan Planning Committee and such a body does not exist. It is not the petitioner's case that the A.P. Urban Areas (Development) Act has ceased to exist after the 74th Amendment to the Constitution. The Articles relied on are not self-contained or self operative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1959 SC 648, Premanath v. State of Jammu and Kashmir, AIR 1959 SC 749, Lingappa v. State of Maharashtra, [1985] 2 SCR 224, Kannan v. District Collector, AIR 1991 AP 43, State of U.P. v. Synthetics, 1993 (41) ECC 326, Srinivas Raghavender v. State of Karnataka, (1987) 2 SCC 692, Bar Council of U.P. v. State of U.P. [1973] 2 SCR 1073. 33. The excessive interference by bureaucrats and the non-participation or minimum participation by elected representatives of the local bodies is made the main ground of attack by the petitioners. The State Government cannot be said to be either an intruder or encroacher in this regard. The minimal checks of Government control is aimed at streamlining the local body administration. This cannot be styled as excessive bureaucrism in the context of limited autonomy which these local bodies enjoy in the light of the Constitutional scheme. An analysis of the provisions would go to show that a balance had been maintained between the powers of elected representatives in making resolutions and taking policy decisions and checks by bureaucrats and officials in carrying out or implementing the same and several of these are either safeguards in streamlining loca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision in State of A.P. v. National Thermal Power Corporation Limited, [2002] 3 SCR 278, had been relied upon for the proposition that the power to legislate is subject to the other provisions of the Constitution, inclusive of Articles 286, 301 and other entries of other Lists. In Arka Vasanth Rao v. Government of A.P. AIR 1995 AP 274 (DB), a Division Bench of this Court while deciding the aspect of applicability of the Act to schedule areas in the State had observed at paras 24 and 25: The learned Advocate-General has endeavoured to impress upon us that the tribals living in the scheduled areas should not be deprived of the benefits of the Panchayat Raj System -functioning of democracy at the grass roots - and so this Court should not make the 1994 Act inapplicable to the scheduled areas. How a public purpose should be promoted and by what means and methods are all matters for legislative determination. As obtained by Cooley: The judiciary can only arrest the execution of a statute when it conflicts with the Constitution. It cannot run a race of opinions upon points of right, reason and expediency with the law-making power, nor can it consider the motive which inspired the passage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be transferred from a place against his will when he is having only one year of service to retire, as far as possible. (iii) Mutual transfers shall be considered to the places other than their previous stations or respective native places. (iv) If the spouse of the officer is also a Government Employee, their transfers shall be considered to same places or neighbouring places as far as possible. (v) No employee shall be considered for transfer on mere allegations either oral or written unless the allegations are proved prima facie (or) believed to be true through discrete enquiries. (vi) Since the posts of Extension Officers (Pancbayats), Divisional Panchayat Officers, Mandal Parishad Development Officers are Gazetted and executive in nature, their posting shall be governed according to General Rules. (vii) The transfers shall be considered only during May or June or during the period when the ban, if any, is lifted by Government. (viii) Transfer however shall be effected at any time during the year on disciplinary grounds or otherwise purely in public interest. (ix) No officer can have the benefit or mutual transfer for more than two times in his/ her entire service or for five ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... G.O. Ms. No. 603 Finance (W M) Department, dated 23-5-2002 and G.O. Ms. No. 45 Panchayat Raj and Rural Development, dated 5-2-2000. It is stated that while process of effecting transfers was in progress, some candidates approached Hon'ble Ministers and got issued impugned proceedings dated 18-7-2002. The impugned proceeding reads: GOVERNMENT OF ANDHRA PRADESH PANCHAYAT RAJ AND RURAL DEVELOPMENT DEPARTMENT Memo. No. 32254/Mdl.II/2002-I Dated 18-7-2002 Sub:-Establishment - Transfers made by the Chief Executive Officer, Zilla Parishad, Nalgonda against the Government instructions - Kept in abeyance until further orders - Regarding. It has been represented to the Government that lot of irregularities have crept in the transfers made by the Chief Executive Officer, Zilla Parishad, Nalgonda after the relaxation of the 'Ban order' by Government as the transfers were alleged to have been made against the instructions issued by Government from time to time on the procedure of Counselling. The Government hereby keep all the transfers made by the Chief Executive Officer, Zilla Parishad, Nalgonda in abeyance until further orders. The Chief Executive Officer, Zilla Parishad, Nalgon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. (g) Expenditure incurred on transfers will be met within the budget allocated. 39. Government had examined the representatives of Nalgonda District unit allocation and found grave irregularities in transfer process and decided to maintain status quo ante and directed the Commissioner to conduct inquiry and Commissioner after inquiry submitted report dated 24-7-2002 holding that no objectivity was followed in the conduct of counselling of N.G.Os. In view of the findings of the Commissioner of Panchayat Raj and the stand taken by the Government in the counter-affidavit, the impugned proceeding cannot be held to be bad in law and the petitioner is not entitled to the relief prayed for in the writ petition. 40. It is undoubtedly for the Parliament to further amend the provision if the Parliament intends to do so to make the provision mandatory. The Rules are not beyond the Rule making power conferred by the Statute and hence they cannot be held to be unconstitutional or ultra vires. Equally so relating to the challenged provisions of the statute and definitely this Court cannot give any form of declaration nor a writ of mandamus can be granted in view of the clear language of Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the domain and discretion of the Legislature and this Court cannot enter upon that sphere while exercising powers under Article 226. My learned Brother has further held that a careful scrutiny of the statutory provisions and rules under challenge go to show that only a balance had been maintained to have proper checks and limited control to have better governance and better functioning of these bodies, that the inadequacies in the working of a system cannot be the province or domain of this Court while exercising powers under Article 226 and that the provisions cannot therefore be held to be either unconstitutional or ultra vires. My learned Brother has also held that The minimal checks of Government control is aimed at streamlining the local body administration. This cannot be styled as excessive bureaucracy in the context of limited autonomy that these local bodies enjoy in the light of the constitutional scheme. An analysis of the provision would go to show that a balance had been maintained between the powers of elected representatives in making resolutions and taking policy decisions and checks by bureaucrats and officials in carrying out or implementing the same and se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m, the Convener, State Mandal Parishad Presidents' Association, Prakasam Sarpanches' Association, Ongole, 7 Chair-persons of Zilla Parishads in the State, 23 Presidents of Mandal Parishads and 22 Sarpanches of Gram Panchayats -56 petitioners in all have filed W.P. No. 12348 of 2002 for a-- writ order or direction in the nature of a writ of mandamus declaring that Sections 31,32(c), 43, 60(6), 61 (1) and (4), 62, 71, 77, 137, 158, 167(1), (4) (7), 174, 186, 187(5), 193(7), 199, 249 and 250 and the Rules in G.O.Ms. No. 64 PR RD dated 5.2.1996, G.O.Ms. No. 488, PR RD, dated 3.12.1996, G.O.Ms. No. 489, PR RD dated 3.12.1996, G.O. Ms. No. 162 PR RD dated 4.4.1997, G.O. Ms. No. 229 PR RD (Accts.I) dated 17.6.1997, G.O. Ms. No. 252 PR RD dated 2.7.1997, G.O. Ms. No. 289 PR RD dated 1.8.1997, G.O. Ms. No. 27 PR RD dated 16.1.1998, G.O. Ms. No. 28 PR RD dated 16.1.1998 and G.O. Ms. No. 29 PR RD dated 16.1.1998 of the A.P. Panchayat Raj Act, 1994 as illegal and unconstitutional for being in violation of the Seventy-Third Constitutional Amendment with particular reference to Articles 243 G, H, I and N and further direct the respondents to take appropriate and immediate steps to discha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the legislative provisions, the rules and administrative instructions), negates the Constitution's mandate that Panchayats be units of local self-Government, is the substratum of the petitioners' grievance. The stand of the Government of Andhra Pradesh - the 1st Respondent: 48. The Secretary, Panchayat Raj and Rural Development Department, Government of Andhra Pradesh has filed a counter-affidavit on behalf of the State of Andhra Pradesh, the 1st respondent, in W.P. No. 12348 of 2002. The principal and relevant contentions of the State are: (i) The writ, as filed, is not maintainable. The substantial relief sought is a direction to the Legislature to enact a law, though couched in the form of seeking a direction to the respondents to take immediate and appropriate steps to give effect to Articles 243 G, H, I and N of the Constitution. Issuance of such a direction is beyond the Charter of this Court. (ii) Since the elected representatives of Panchayat Raj Institutions are not entitled to more powers than what have been conferred on them under the 1994 Act and the Rules made thereunder, they are not entitled to seek their involvement either in the Central or State sponsored ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing agriculture, social forestry, fuel and fodder, Roads, Bridges and Ferries, non-conventional energy, adult and non-formal education, public distribution system, social welfare, education including primary and secondary schools, health, sanitation and family welfare. In respect of these subjects, monitoring and review of the functioning of these programmes have been devolved on Panchayat Raj Institutions. (ix) Substantial devolution of funds to Panchayat Raj Institutions is made by the State, including transfer of the entire amount of surcharge on stamp duty after deducting establishment charges, entire amount of entertainment tax and of sand leases and tax on minor minerals. Local bodies are also empowered to collect cable tax. 95% of the professional tax collected by the Government is passed on to the local bodies. Further, primary and secondary schools in rural areas are under the control of Panchayat Raj Institutions. The Government is also meeting the expenditure on salaries and pension of the employees in Panchayat Raj Institutions whose services have been provincialised. The expenditure on the salary of the Teachers is also met by the Government. The Engineer-in-Chief, Pan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set out details of the various Central and State schemes in which Panchayat Raj Institutions have been afforded a role. Details have been furnished about various rules and administrative instructions made and issued to effectuate the purposes of the 1994 Act. The principal grievance in the writ petition that substantial powers, authority and responsibility for the governance of the Panchayat Raj Institutions has been conferred by and under the Act to appointed officials of the Panchayats controlled by the Government and its agencies and not to the elected representatives, is met by asserting that the officials are subordinate to various levels of Panchayat Raj Institutions and that the discretion of the State Legislature in conferring such powers, authorities and responsibilities, as it deems fit, on either the Panchayat Raj Institutions, the elected representatives or officials, is plenary and not subject to constitutional control or susceptible to mandamus by this Court. 50. Reiterating the position adopted by the State, Sri Ramesh Ranganathan, learned Additional Advocate General made submissions. In brief, it is contended: (a) The premise that the Panchayat Raj Institutions cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rstood, however, 'self-Government' must have two attributes viz.,(a) Government democratically elected by the people and (b) autonomy. Autonomy is an elusive concept in a State where the Governments at multiple levels and Governments at particular levels enjoy only partial autonomy. Even the Consultation Paper on the Review of the Working of the Constitution on 'decentralisation' circulated by the National Commission to Review the Working of the Constitution has concluded that what measure of autonomy a Panchayat should enjoy is a matter of judgment as well as policy. The constitution, therefore, must be deemed to have left the aspect of the degree of devolution to Panchayat Institutions to the wisdom and judgment of the State Legislature. The Courts cannot substitute their judgment for those of the State Legislature vide A.K. Roy v. Union of India, 1982 CriLJ 340. (e) Article 243G of the Constitution neither circumscribes the powers of State Legislature under Article 246(3) of the Constitution to make laws in relation to the Entries in List n and III of the VII Schedule of the Constitution nor constrains the discretion of the State Legislature to devolve powers on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obvious intention of the Constitution, but could not legislate itself [Union of India v. Deoki Nandan Aggarwal AIR 1992 SC 96, and J.P. Bangal v. State of Rajasthan, [2003] 2 SCR 933. (j) Part IX of the Constitution as it exists does not mandate conferment of all powers and authority only on elected representatives and to the exclusion of the officials. The Court cannot dictate what has not been mandated by the Constitution on the Legislature. Such an exercise is beyond the powers of the judicial branch. The stand of the Government of India -the 2nd respondent: 51. The Under Secretary in the Ministry of Rural Development, Government of India - the 2nd respondent in W.P. No. 12348/2002, has filed a response. To the extent of the issues involved, the stand of this respondent is : (a) The State Legislature has the discretionary power to decide the quantum of powers to be devolved to Panchayats with reference to the 29 subjects enumerated in Schedule-XL According to the information available with the Central Government (Ministry of Rural Development), the State Government has devolved functions to Panchayats in respect of 17 out of 29 subjects and funds have been devolved in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the view of the Government of India in its counter-affidavit. The submissions of the learned Additional Solicitor General are: (a) Complete autonomy for the Panchayats to the exclusion of the State is not signalled by the provisions of Part IX. (b) The parameters of power and authority necessary to enable the Panchayats to function as institutions of self-governance are left to identification at the discretion of State Legislature qua the provisions of Article 243G. (c) The enacting history and the debates during consideration of the (73rd Amendment) Bill including the statement of the then Minister for Urban Development provide an insight into the constitutional purposes enshrined in Part IX. The Hon'ble Minister had then stated that utmost sensitivity has been displayed to the basic frame work of the Constitution and the Center - State relationship enshrined in the Constitution. Entry-5 of the State List remains untouched. The authority of the State Legislatures is, no way, sought to be diminished. We are only amending the Constitutions and we are not interfering, in any way, with the State's right to drafting of municipal laws. Important matters have been left to be deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wers in respect of various items and subjects mentioned in Schedule-XI, to the Panchayat Institutions in a manner that effectuates the expressed Constitutional purpose viz., that these bodies function as institutions of local self-Government. (d) Power over funds, over functions, over functionaries and over policy processes is an essential attribute of local self-Government. Such devolution and responsibility has been denied by the provisions of the 1994 Act. (e) The basic principle of the Government is that authority and responsibility must vest at the same level. This fundamental principle has been eschewed in the impugned enactment. (f) The essence of an autonomous, self-contained Government is contingent on having substantial financial independence. It is imperative that there be a clear delineation of resources allocated to the local Government in the State budget and the provisions of the Act. This has not happened. (g) Control over the functionaries of the Panchayat Raj Institutions is an essential attribute of local self-Government and is as critical as control over finances to effectuate functioning. Control over the functionaries of the Panchayat Raj Institutions is entre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effectuates the purposes of Part IX is permissible, not so however to rewrite the provisions by ignoring the limitations placed on Panchayat Raj Institutions. The expressions subject to such conditions , subject to such limits and subject to such conditions and limits occurring in Articles 243G to H cannot be ignored. (3) The plenitude of the State's legislative competence in respect of the matters enumerated in Schedule-XI is not denuded nor is the State's legislative power under Articles 245, 246 and List-11 of the 7th Schedule, overridden by Part-IX. (4) Not only is there absent a non obstante clause but Article 243G expressly states that subject to the provisions of the Constitution , the Legislature of a State may, by law, endow the Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self-Government. (5) Powers and authority to enable Panchayat Raj Institutions to function as institutions of self-governance would include provision of finance and some degree of financial autonomy; involvement in planning, decision making in matter concerning Panchayats and implementation of decisions; voice and say in elections; a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) reads as under: Article 40: Organization of Village Panchayats: The State shall take steps to organise Village Panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-Government. 57. In view of the provisions of Article 37 the provisions of Article 40 are not enforceable by any Court, though the principles therein set out are fundamental in the governance of the country and the State is enjoined a duty to apply these principles in making laws. In view of the provisions of Article 37 in Part IV of the Constitution the provisions of Article 40 are but in the nature of an exhortation, unenforceable. The Heydon's Rule background : 58. A study of the functioning of the local bodies including Gram Panchayats, over four decades, had given rise to a perception that the Panchayat Raj Institutions had not been enabled to acquire the status and dignity of viable and responsible representative bodies, the exhortation in Article 40, notwithstanding. It was therefore perceived that a more explicit structural mechanism be incorporated in the Constitution for effectuation of the purposes exhorted in Article 40. The statement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of development schemes; sound finance of the Panchayats by securing authorization from State Legislatures for grants-in-aid to the Panchayats from the Consolidated Fund of the State, as also assignment to, or appropriation by, Panchayats of the revenues of designated taxes, duties, tolls and fees; setting up of a Finance Commission within one year of the proposed and thereafter every 5 years to review the financial position of Panchayats; auditing of the accounts of the Panchayats; powers of State Legislatures to make provisions with respect to elections to Panchayats under the superintendence, direction and control of the Chief Electoral Officer of the State; application of the provisions of the said Part to Union Territory; excluding certain States and areas from the application of the provisions of the said Part; continuance of existing laws and Panchayats until one year from the commencement of the proposed and barring interference by Courts in electoral matters relating to Panchayats. 4. The Bill seeks to achieve the aforesaid objectives. 59. Before proceeding to identify the true and permissible meaning of the provisions of Articles 243G and 243-H in Part-IX of the Constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pendence. R.K. Mookerji also points out the reasons for evolution of local administration, as the physical impossibility of administering properly the manifold interests of civilized life in the comparatively larger and complex states of the modern world from one Central Government. Analyzing the distinctions between the nature and organization of local bodies in the more progressive countries of West (in medieval and modem times) with the developments in India, Mookerji points out that in countries such as the United Kingdom, Germany, France or even the United States, ...the organizations of local-Governments are mostly the creation of the Central Government; that these local bodies owe their present form and constitution to a process of decentralization, delegation, or devolution of powers determined by the national Legislature; that they are thus in the ultimate analysis but wheels of a common machine, parts of a single plant, and are not by any means 'extra-legal' associations, devoid of any statutory warrant, and, therefore, in the eye of the law, possessed of no authority what-so-ever. 61. In respect of local self-Government, as it developed in India, however, we shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that they gained recognition even by the then Viceroy Lord Ripon, who moved a resolution on 'the local self-Governments' in 1882. 65. In the 20th century, in Southern India, the earliest enactment of comprehensive character streamlining the local administration was the Madras Local Boards Act, 1920, under which the Panchayats and District Boards were established, with the Village Panchayats functioning more or less under the control of the District Boards. With a view to entrusting greater responsibility to the Government, in the functioning of Village Panchayats, the Madras Village Panchayats Act was enacted in 1950 and the name of the Local Boards Act was also altered to read the Madras District Boards Act . In the Telangana area, Gram Panchayats were constituted under the Hyderabad Gram Panchayat Act, 1956. Subsequent to the formation of the State of Andhra Pradesh in 1956, the Andhra Pradesh Gram Panchayats Act, 1964 (the 1964 Act) was enacted repealing the Madras Village Panchayats Act, 1950 and the Hyderabad Gram Panchayat Act, 1956. The Andhra Pradesh Panchayat Samithis and Zilla Parishads Act, 1959 was then enacted whereunder a Panchayat Samithi was constituted for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsibilities upon the Panchayats at the appropriate level, subject to such conditions as may be specified in such law for the implementation of schemes of economic development and social justice. (See Article 243G) 68. Before proceeding on an analysis of the relevant provisions of the Act and in the context of the petitioners' grievance, the provisions of Part IX of the Constitution may be noticed: Article 243 Definitions In this Part unless the context otherwise requires,- (a) district means a district in a State: (b) Gram Sabha means a body consisting of persons registered in the electoral rolls relating to a village comprised within the area of Panchayat at the village level: (c) intermediate level means a level between the village and district levels specified by the Governor of a State by public notification to be the intermediate level for the purposes of this Part: (d) Panchayat means an institution (by whatever name called) of self-Government constituted under Article 243-B, for the rural areas: (e) Panchayat area means the territorial area of a Panchayat; (f) Population means the population as ascertained at the last preceding census of which the relevant figures have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the intermediate level; (if) a Panchayat area at the district level, in Panchayat at the district level. (4) The Chairperson of a Panchayat and other members of a Panchayat whether or not chosen by direct election from territorial constituencies in the Panchayat area shall have the right to vote in the meetings of the Panchayats. (5) The Chairperson of-- (a) a Panchayat at the village level shall be elected in such manner as the Legislature of a State may, by law, provide, and (b) a Panchayat at the intermediate level or district level shall be elected by, and from amongst, the elected members thereof. ARTICLE 243D Reservation of seats (1) Seats shall be reserved for-- (a) the Scheduled Castes; and (b) the Scheduled Tribes, in every Panchayat and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Panchayat as the population of the Scheduled Castes in that Panchayat area or of the Scheduled Tribes in that Panchayat area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Panchayat. (2) Not less than one-third of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Panchayat shall be completed-- (a) before the expiry of its duration specified in Clause (1); (b) before the expiration of a period of six months from the date of its dissolution: Provided that where the remainder of the period for which the dissolved Panchayat would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Panchayat for such period. (4) A Panchayat constituted upon the dissolution of a Panchayat before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Panchayat would have continued under Clause (1) had it not been so dissolved. ARTICLE 243F Disqualifications for membership (1) A person shall be disqualified for being chosen as, and for being, a member of a Panchayat-- (a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned: Provided that no person shall be disqualified on the ground that he is less than twenty five years of age, if he has attained the age of twenty-one years; (b) if he is so disqualified by or under any law made by the Legislature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivided between them under this Part and the allocation between the Panchayats at all levels of their respective shares of such proceeds: (ii) the determination of the taxes, duties, tolls and fees which may be assigned to, or appropriated by, the Panchayats; (iii) the grants-in-aid to the Panchayats from the Consolidated Fund of the State; (b) the measures needed to improve the financial position of the Panchayats; (c) any other matter referred to the Finance Commission by the Governor in the interests of sound finance of the Panchayats. (2) The Legislature of a State may, by law, provide for the composition of the Commission, the qualifications which shall be requisite for appointment as members thereof and the manner in which they shall be selected. (3) The Commission shall determine their procedure and shall have such powers in the performance of their functions as the Legislature of the State may, by law, confer on them. (4) The Governor shall cause every recommendation made by the Commission under this Article together with an explanatory memorandum as to the action taken thereon to be laid before the Legislature of the State. ARTICLE 243J Audit of accounts of Panchayats The L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Meghalaya and Mizoram; (b) the Hill area in the State of Manipur for which District Councils exist under any law for the time being in force. (3) Nothing in this Part-- (a) relating to Panchayats at the district level shall apply to the Hill areas of the District of Darjeeling in the State of West Bengal for which Darjeeling Gorkha Hill Council exists under any law for the time being in force; (b) shall be construed to affect the functions and powers of the Darjeeling Gorkha Hill Council constituted under such law. (3A) Nothing in Article 243D, relating to reservation of seats for the Scheduled Castes, shall apply to the State of Arunachal Pradesh. (4) Notwithstanding anything in this Constitution-- (a) the Legislature of a State referred to in Sub-clause (a) of Clause (2) may, by law, extend this Part to that State, except the areas, if any, referred to in Clause (1), if the Legislative Assembly of that State passes a resolution to that effect by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting; (b) Parliament may, by law, extend the provisions of this Part to the Scheduled Areas and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Panchayat (A. 243C(2)). 5. Reservation of seats for the Scheduled Castes, the Scheduled Tribes and for women belonging to these categories and for women not belonging to the scheduled categories, including the principles by which the extent of reservations is to be arrived at, spelt out (A. 243D). 6. The tenure of the Panchayats substantially guaranteed against legislative and executive pleasure (A. 243E). 7. Constitution of a Finance Commission to review the financial position of Panchayats within a defined time frame mandated (A. 243I) 8. Integrity of the electoral process for elections to the local self-Governments ensured by the creation of a State Election Commission with protected status to ensure independence and effective functioning (Art. 243K). 9. Bar to judicial interference in electoral matters (within well defined limits) incorporated, to ensure non-stultification or diminution of the representative governance mechanism of Panchayats (A. 243O). 69. The petitioners contend that the provisions of the Constitution (73rd Amendment) Act exemplify a Constitutional signal that the Panchayats function as vibrant institutions of local self-Government and not mere administrative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enable to judicial review. Similarly, contends the State, the provisions of Article 243H are in the nature of enabling provisions empowering the State Legislature to, by law, authorize the Panchayats to levy, collect and appropriate taxes including the power to prescribe the procedure and limits within which the Panchayats could be empowered to levy, collect and appropriate taxes. Since the language of Articles 243G and 243H of the Constitution is couched in enabling phraseology, no mandamus could issue treating these constitutional provisions as incorporating a linear command obligating specific conduct by the State Legislature, is the meat of the State's stand. 72. Before assaying on the exercise of identifying and elucidating the meaning of the provisions of Part-IX of the Constitution, an exercise which needs be avoided, if a merely an academic exercise, it is appropriate to analyze the structure and the provisions of the 1994 Act to ascertain whether the articulated grievance of the petitioners, that the provisions of the 1994 Act have not only failed to effectuate the purposes of the provisions of the Constitution, but have, subverted the constitutional intent, structure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... panch under Section 33 are to be exercised in consultation with the Executive Authority. 79. Sub-section (4) of Section 30 enacts that an Executive Authority shall be subordinate to the Gram Panchayat. He is, however, under the Section appointed by the Commissioner. He is empowered (Section 31) to convene the meeting of the Gram Panchayat with the approval of or on the direction of the Sarpanch and on the Sarpanch failing to give approval, to himself convene the meeting. Under Section 32 he is responsible for implementing the resolutions of the Gram Panchayat and of its committees and where he is satisfied that a resolution has not been legally passed or is in excess of the powers conferred by the Act or if carried out is likely endanger human life, health or public safety, is required through the Sarpanch to refer the matter to the Commissioner. The Executive Authority also has control over all the officers and servants of the Gram Panchayat and is empowered to exercise all powers and perform all functions conferred or imposed under the Act and for the purpose of carrying out the provisions of the Act. 80. The Executive Authority (Section 35) may delegate any of its functions to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... control provided except the vacuous declaration that these officers and servants shall be subordinate to the Gram Panchayat. The provisions of the 1994 Act have ensured that the declaration of control is ineffective in reality and operation. 85. Under Section 77 the budget is to be framed by the Executive Authority and placed before the Gram Panchayat. The Gram Panchayat is required to sanction the budget with such modification as it thinks fit. When sanctioned by the Gram Panchayat the Executive Authority forwards the budget to the Divisional Panchayat Officer, who is empowered to make suggestions and modifications and return it to the Gram Panchayat. The Gram Panchayat may thereupon consider the same and approve it with or without modifications at a special meeting. The budget so approved is final The framing of the budget is an important constituent of governance exercisable by an elected body and constitutes a key ingredient of accountable and representative Government. The budget is an instrument in which the fiscal policies, economic choices and social and developmental priorities of the Panchayat, are reflected. Even in this area neither the Gram Panchayat nor its elected M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and its appointed and controlled agents, in whom is vested substantial and effective financial, administrative and organizational control, control over the functionaries of the Panchayat Raj institutions, power to identify and effectuate even essentially local and neighbourhood needs and developmental requirements, power to prioritise, initiate and execute policy to cater to such requirements. 89. The elected representatives of the three levels of Panchayats are elected and expected (and mandated too) to deliberate at least at ordained intervals. They deliberate and resolve, resolutions whose effectuation is vested in the discretion of the Executive Authority of the Gram Panchayat, the MPDO, or the Chief Executive Officer of the Zilla Parisahd, who in turn are bound by the instructions of the District Panchayat Officer, the District Collector, the Commissioner of Panchayat Raj and/or the State Government. 90. Local self-Government as ordained by the amended constitutional calculus, despite the inconclusiveness of the language in Article 243G at least signal a discernable autonomy in the area of governance, in identifying local needs, aspirations, prioritizing local development ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Panchayat Raj Institutions, the report records that an institution of self-Government must have the power to recruit and control the officers and other employees required for managing its functions. The Constitution is totally silent about this viability aspect of institutional autonomy. The failure to address the human resource issue has definitely affected the growth of Panchayats as self-governing institutions. The report also points out that while the task of assigning functions to the Panchayats was given to the State Legislature, this has been usurped by the State Government. Though the Constitution did not intend that the Panchayat would be like any other authority created by a Statute of the State with the only difference as regards the Constitutional guarantee of its certainty, continuity, reservations etc., but with no difference as regards the State Government's unfettered power to restrict or limit its autonomy. The conclusion of the Commission in this area is that the gap between the constitutional hope and the reality in the area of empowerment of Panchayat Raj Institutions was on account of the inconclusiveness of the text. It recommended amendments to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cisions, The political principles underlying and animating federal systems emphasize the importance of bargaining and negotiating co-ordination among several power centers and underline the virtues of dispersed power centers as a means of safeguarding individual and local liberties. 97. Federal systems are principally based on six fundamental premises. They are non-centralisation; pre-disposition towards democracy; established system of checks and balances; operation through a process of open bargaining; usually under a written constitution; and presence of constitutionally determined fixed units of power within the polity. 98. Federalism is more than a mere structural arrangement; it is a special mode of political and social behaviour as well, involving a commitment to partnership and active co-operation on the part of individuals and institutions that at the same time take pride in preserving their own integrity. Maintenance of the federal principle requires the general Government and the constituent polities to each have their substantially complete governing institutions of their own, with the right to modify these institutions unilaterally within the limits set by the federal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ible to characterize the Panchayats as the 3rd tier of the federal structure, under the Indian constitutional scheme even after the 73rd amendment. 102. The debate as to whether the Panchayats constitute part of the federal structure under the Constitution, is pointless and sterile. If the provisions of Part IX of the Constitution obligate, endowment of powers and authority and devolution of powers, authority and responsibility on the Panchayats, it matters not that the Panchayats are not a part of the Federal structure. Constitutional interpretation is an exercise beyond identification of labels. Whether a mandamus can issue to the Legislature to enact a law: 103. While seeking invalidation of certain provisions of the 1994 Act and the Statutory Rules made thereunder, the petitioners seek a direction to the respondents to take appropriate and immediate steps to discharge their constitutional duties of giving effect to the same and for other consequential constitutional measures to conform to the constitutional requirements.'' The endowment of powers and authority to the Panchayats as well as authorisation to Panchayats, to levy, collect and appropriate taxes, duties, tolls ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eology intended more to outline principles rather than to engrave the details. In the interpretation of a Constitutional document, a rigid literal approach is not conducive to elucidate the true import of the Constitutional intent. It must be remembered, as pointed out and reiterated by M.N. Venkatachaliah, J (as his Lordship then was) in R.C. Poudyal v. Union of India, [1993] 1 SCR 891, that in an interpretation of a constitutional document, ...the words are, but the frame work of concepts and concepts may change more than words themselves. The significance of the change of the concepts themselves is vital and the constitutional issues are not solved by a mere appeal to the meaning of the words without an acceptance of the lines of their growth. 106. One interpretive principle in elucidating the meaning of constitutional provisions is that reiterated by S.R. Das, J., in Keshavan v. State of Bombay. 1951 CriLJ 680, that ...a Court of law has to gather the spirit of the Constitution from the language of the Constitution. What one may believe or think to be the spirit of the Constitution cannot prevail if the language of the Constitution does not support that view. In A.G. for N.S.W. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt majority pressures, that might find utterance either in executive action or legislative fiat. 108. In the sprawling debate over the legitimacy of judicial review, the counter majoritarian objection to judicial review pointed out by Alexander Bickel (The Least Dangerous Branch) is whether a non elective judiciary placed in office neither by the majority nor directly accountable to the people could be justified with the power to overturn democratic decisions reflected in the legislative will? The underlying assumption of the Bickelien problematic is that the policy decisions of the legislatures are democratic and need no further justification by simple virtue of the fact that they are the product of an elected assembly. In this view, democracy is represented as essentially a procedural ideal: political decisions are validated through the ballot box and acquire political legitimacy in the light of that process. The other facet of this premise is that just as legislative decisions are presumptively democratic (since they are the product of an elected assembly), judicial opinions overruling legislative decisions are presumptively undemocratic (because they are made by unelected offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plemented. To be accorded legitimacy, democratic institutions must rest, ultimately on a legal foundation. That is, they must allow for the participation of, and accountability to, the people, through public institutions created under the Constitution. Equally, however, a system of Government cannot survive through adherence to the law alone. A political system must also possess legitimacy, and in our political culture, that requires an interaction between the rule of law and the democratic principle. The system must be capable of reflecting the aspirations of the people. But there is more. Our law's claim to legitimacy also, rests on an appeal to moral values, many of which embedded in our constitutional structure. It would be a grave mistake to equate legitimacy with the sovereign will or majority rule alone, to the exclusion of other constitutional values. (emphasis) 111. The republican character of the Government guaranteed by our Constitution assures accountability. Such accountability enforced at election times is episodic and not necessarily an effective mechanism for ensuring that the executive and political branches would conform to the majority's bidding as might ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drawn from other parts of the Constitutional text, some times political and social theories, the nature of the evolution of the civil society and like sources. 115. Ronald Dworkin has shown (Taking rights seriously) that the assumption that law is a system of rules some superior and some inferior, is inaccurate The depiction of constitutional provisions as superior rules is critical to the characterization of the judicial powers as simply the application of rules to facts in deciding cases. However, not all constitutional provisions can be described as rules. While some provisions are rules, such as those specifying that the duration of the House of People, unless sooner dissolved, shall continue for five years - Article 83, a person shall not be qualified to be chosen to fill a seat in the House of the People unless he is not less than 25 years of age Article 84(b), an ordinance promulgated by the President shall cease to operate at the expiration of six weeks from the reassembly of the Parliament Article 123(2)(a); other provisions of the Constitution are not, and they are the ones that invite interpretation and criticism too about the role of the Courts and the contours and lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cates the meaning of the entire text. The framer (and the amenders too) were aware that it was a Constitution that they were drafting, which led to a choice of language capable of and susceptible to value-identification, explication of purposes and of growth. 119. Upon the value pregnant areas of the Constitution, our Supreme Court is seen to have often addressed itself to the resolution of competing claims of value arguments. The equality injunctions of the Constitution (Articles 14, 15 and 16) do not define the expression. That the doctrine of classification and the concept of non-arbitrariness are integral to the concept of equality, are conclusions drawn by the judicial branch from origins, enacting history, social and economic philosophy, comparable organic texts and jurisdictions and other sources - see [Chiranjit Lal v. Union of India [1950] 1 SCR 869, State of West Bengal v. Anwar Ali Sarkar, 1952 CriLJ 510, Syed Quasim Razvi v. State of Hyderabad, 1953 CriLJ 862, Budhan Choudhary v. State of Bihar, 1955 CriLJ 374, In re Special Courts Bill, 1978, [1979] 2 SCR 476, E.P. Royappa v. State of Tamil Nadu, (1974) ILLJ 172 SC, Maneka Gandhi v. Union of India, [1978] 2 SCR 621 .] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndatory power of the Parliament) was not based on any singular signal emerging from the constitutional text. At first blush the concept of judicial review too might appear nebulous , elusive or inconclusive . This is the specific contention urged on behalf of the Union and the State in respect of the expression 'self-Government' occurring in Part-IX of the Constitution. If the theory propounded by the State, in this case, is to commend acceptance, then judicial review ought to mean what the Legislature intends the expression to mean and nothing further and the judicial branch would be constitutionally forbidden to consider what judicial review embodies. Investiture of adjudicatory power including in the area of vires of legislative provisions, invested in an exclusively executive authority and under the broad control of the State, would have to be upheld, if the contention of the State in this case is to commend acceptance by this Court. 122. In S.R. Bommai v. Union of India (supra), the Supreme Court identified the contours of the concepts of federalism and secularism in our Constitution, 'elusive', 'nebulous' and 'inconclusive' as those expressions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... textually remains unaltered, the penumbra has grown infinitely and by judicial exegesis. The right to life and its corollary to privacy now includes; the right to telephone conversation in the privacy of the home or the office -PUCL v. Union of India 1997 (2) ALD (SCSN) 39 : AIR 1997 SC 207, the right to shelter - Prabhakaran Nair v. State of T.N. [1988] 1 SCR 1, a right to speedy trial - Kadra Pahadia v. State of Bihar, AIR 1981 SC 939, State of Mahrastra v. M.P. Vashi, AIR 1996 SC 1, the right to legal assistance - Sheela Barse v. Maharastra, 1983 CriLJ 642, the right against illegal detention -Hussaianara Khatoon (I to VI) v. Home Secretary, Bihar, 1979 CriLJ 1036, the right to health -C.E.R.C. v. Union of India, (1995) IILLJ 768 SC, the right to pollution-free environment - M.C. Mehta v. Union of India, [1986] 1 SCR 312 . These are but illustrative, of the vast expansion to the meaning of the expression 'life or personal liberty' that has been brought about by interpretive gloss and curial construct. This dynamics is the product of departure from mere textualism, in the interpretation of constitutional provisions. 124. In Chief Justice of Andhra Pradesh v. L.V.A. Dixitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e constitution consultation by the President with the Chief Justice of India and other consultees is specified (Articles 124 and 217). The construction that the consultation subsumes primacy to the views of the Chief Justice of India was ratiocinated by the Supreme Court majority, inter alia, on presumptions drawn as to the purposes of the constitution and the independence of the judiciary as a core value. The Supreme Court majority structured the reasons for constructing a primacy for the views of the Chief Justice of India in the consultation process, by importing values into the constitutional text. To the inconclusive , nebulous or elusive expression consultation (characterisation of the expression 'self-Government' by the Learned Solicitor General for India and the Learned Additional Advocate General for the State), the Supreme Court majority implied values beyond the lexicographic explication of the expression. The need to preserve and energise the vital institutions engendered under our Constitution, as the 2nd Judges' case demonstrates, necessitates and legitimises the constructivist role of the judicial branch. 126. In the first Democratic Reforms Case - PUCL a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions 33A and 33B were incorporated providing a right to information to the voter and obligating a candidate at election to furnish information in an extent restrictive than the extent directed by the Supreme Court in the First Democratic Reforms case. The validity of this legislative exercise was challenged before the Supreme Court in PUCL and Anr. v. Union of India and Anr. [2003] 2 SCR 1136, - the second Democratic Reforms case. The Supreme Court held the concept of freedom of speech and expression is not static. The felt necessities of the times coupled with experience drawn from the past may give rise to the need to insist on additional information on the aspects not provided for by the law. While striking down Section 33B of the 1951 Act as introduced by the amending Act, the Supreme Court reasoned that in the First Democratic Reforms case it had determined the ambit of the fundamental right of information of a voter. As the challenged amendment abridges the judicially evolved fundamental right under Article 19(1)(a) beyond the limits permitted under Article 19(2), the amendment is found ultra vires Article 19(1)(a). The expansive implication of the freedom 'of speech an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in that they too have associations, echoes and overtones . Judges, cautioned Frankfurter must retain the associations, hear the echoes and capture the overtones. He also pointed out that just as Governments some times solve problems by shelving them temporarily, the legislature also does so, statues as well as constitutional provisions at times embody purposeful ambiguity or are expressed with a generality for future unfolding. 131. Ambiguity, generality or inconclusiveness in a statutory or constitutional context, legitimizes the role of the judiciary as an interpreter whose task in such circumstances is beyond the explication of the meaning by an appeal to the dictionary. This legitimacy must, however, comport with the need to avoid constitutional nihilism. As Robert H. Bork pointed out in Tradition and Morality in Constitutional Law . In a constitutional democracy the moral content of law must be given by the morality of the framer or the legislator, never by the morality of the Judge. The sole task of the latter- and it is a task quite large enough for anyone's wisdom, skill, and virtue - is to translate the framer's or the legislator's morality into a rule to gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other in a single, presumptively coherent constitutional calculus, is a question that has no simple answer. Each of the identified theories themselves invite interpretation. Richard H. Fallon Jr., of the Harvard University, after explaining the bases of each of the theories, argues that the supervening value of democracy does not undermine the competence of Judges, or require insofar as is humanly possible that they should abjure reliance on value arguments. The Constitution assumes, he points out, that legislation by contemporary majorities is subject to the higher constitutional law and is subject to scrutiny by a constitutional practice in which Judges legitimately identify the meaning of the constitutional text relying on arguments about the constitutional values. In an article A Constructivist Coherence Theory of Constitutional Interpretation Fallon points out what underlies constitutional practices and provides a frame work for those puzzled about how different kinds of constitutional arguments fit together. A constitutional theory must seek to explain constitutional guarantees and prohibitions, elucidate the structures and details of the organizational plan of the institutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority' and his superiors, not 'by' the elected representatives. Part-IX has not mandated elections with reservations (intended to effectuate, empowerment of the under-empowered) as a mere dogmatic ritual shorn of substance. 137. Routledge has published 'The Encyclopedia of Democracy' in 1995. This study conducted under the chief editorship of Seymour Martin Lipset and an impressive editorial board consisting of eminent political and social scientists made a fairly comprehensive study of the concept of democracy, what it means, where it occurs and under what conditions. It is a compendious reference work on 'democracy'. 'Local Government' is one of the aspects considered in the above study. A summary of the Article on 'Local Government' opens a window to the why and what of 'Local Government'. Local Government: 138. Local Governments are institutions and procedures by which small districts or territories, such as countries, townships, cities or villages - are ruled. In a democracy, local Government is conducted by representatives, assisted by paid administrators (emphasis) Local Government is where democracy develops, often soo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utonomy in a national system could foster an innovative spirit among the local units that will help them adopt to changing conditions. Local democracy is a major source of innovative ideas and specific practices from which all levels of Government can learn in years of turbulence, tumult and turmoil. A well-functioning polity having an effective vertical division of powers emerges from such baptism by fire, a richer, and more mature and enduring instrument for the governance of its plural society. Analysis and Conclusions: 142. We are satisfied that textual ambiguity in the constitutional context does not per-se subsume exclusive consecration of undefined authority, for exclusive legislative unfolding of the meaning of the organic text. Where the textual symbol is apparently intended to convey a value or principle in contradistinction to a rule, ambiguity is purposeful and inherent and legitimizes the constructivist role of the judicial branch. 143. The learned Additional Solicitor General for India and the learned Advocate General for the State have pointed out that as the expression local self-Government is unaccompanied by constitutional instruction as to its form, structure, co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary . Learned Advocate General for the State, placing reliance on the decision of House of Lords in George v. Devon County Council, (1988) 3 All.ER 1002, urges that the expression 'as may be necessary' in Article 243G merely signals the conferment of a discretion in the legislature. It requires to be noticed that in the above decision, the House of Lords was considering the provision of Section 55(1) of the Education Act, 1944. The statutory expression that fell for consideration reads: a local education authority shall make such necessary arrangements for the provision of transport and otherwise, as they consider necessary (emphasis). In interpreting this expression. Lord Keith of Kinkel, with whom the other Law Lords concurred, held: The authorities function in this respect is capable of being described as a discretion , though it is not, of course, an unfettered discretion, but rather in the nature of an exercise of judgment. Article 243G does not employ an expression ipsissima verba. 147. On behalf of the Union of India and State of Andhra Pradesh it is contended that the provisions of Article 243G are enabling in character. They contend that this Article neither ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gindra Singh's case (supra) pointed out that Sometimes, the legislature uses the word may out of deference to the high status of the authority on whom the power and the obligation are intended to be conferred and imposed. Indeed, pointed out the Supreme Court, when a provision is intended to effectuate a right - here it is to effectuate a constitutional protection to the Judges under Article 124(4) - even the provision in Article 124(5) which may otherwise seem merely enabling, becomes mandatory. The exercise of the power is rendered obligatory. The Supreme Court also ruled that if the word may in Article 124(5) is given any other meaning, that sub-Article would render itself to be treated by the Parliament as superfluous, redundant and otiose. The power to prescribe a procedure for the exercise of power under Article 124(4) would otherwise also be available to the House. The law envisaged in Article 124(5) is not such a law; but one which would effectuate the constitutional policy and philosophy of the machinery for removal of Judges. The use of the word may does not therefore necessarily indicate that the whole Clause (5) is an enabling provision leaving it to the Parliament ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has the discretion whether or not to endow the Panchayats with any powers and authority or to devolve upon them any powers and responsibilities. The overall peace, order and good Government in the State is the responsibility of the State and, therefore, the discretion of the State Legislature to incorporate in the legislation dealing with the Panchayat Raj Institutions, such measures as are necessary to effectuate these purposes of the State is on-exceptionable and a given. A balanced theory of interpretation of the Constitution's de-centralisation of power values, warrants the conclusion that while incorporating provisions for control of the Panchayat Raj Institutions to achieve the over all and legitimate purposes of the State, such controls ought not to entail total stultification, emasculation or negation of the democratic choice of the local population expressed in the elections to local bodies. Governance power and autonomy in some discernable manner should of necessity inhere in the elected representatives of the Panchayats to enable characterization of these institutions as 'self-Government' institutions. A State Legislation that divests or withholds effective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esources to the Panchayats whether by way of empowering them to levy, collect and appropriate taxes, duties etc., and/or assigning to them such taxes, duties etc., collected by the State Government, as would invalidate the functionality of these institutions, would negate the constitutional purposes. 158. The empowerment of the Panchayats in the financial domain or allocation to them of the general resources of the State is, however, a complex policy choice, integral to the executive and legislative departments and normatively outside the domain of the judicature. With the most competent and comprehensive presentation of factual data, scrutiny of this area by the judicial branch is beset with the danger of over-stepping the limits and entering into areas integral to the economic choices that are constitutionally consecrated to the legislative and executive branches of the State. No concrete data has also been placed before this Court to posit a conclusion that the endowment of fiscal powers to the Panchayats or the devolution of finances out of the State's resources is illusory and the state's conduct in this regard renders the Panchayats dysfunctional. 159. It is however c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Union and the State constitutes our federal system (classical or centrist) and effectuates the federal values espoused by the Constitution, a value that the founding fathers considered essential to the effective maintenance of our plural civil society and a value our apex Court has characterized as basic (Kesavananda and Bommai supra). 161. At the dawn of our republic, the Constitution entrenched the structure of our federal polity by its explicit incorporation of a two-tier federal structure. In recognition of the ancient and historical tradition of effectively functioning Gram Panchayats with due faith that the elected representatives of the federal and State Legislatures would ensure the nurturing of these institutions of self-Government, our organic document did not incorporate an inviolable, entrenched structure for the local 'self-Governments'. The non-justiciable exhortation in Article 40 was observed, more in the breach. Therefore, the 73rd Amendment: to address and remedy the mischief in the working of our structural mechanisms. 162. Recognition in the local bodies, of a constitutional right to survive, as more than vacuous or symbolic institutions necessarily ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate's executive agents would be a negation of the constitutional purposes. (d) The rights, privileges and immunities, of local bodies, from encroachment by the State are mirror images of individual rights. The Union, State and Panchayats as 'self-Governments' are in reality and fact, different agents and trustees of the people, inter-dependant and not insular. They constitute a homogeneous collage of the constitutional canvas. (e) The constitutional intent (in Part-IX) in enacting a structural mechanism encompassing a vertically divided grant of governance powers with a guaranteed position for local self-Governments is for the benefit and protection of the citizens. The structure of divided powers under our Constitution is not a mechanism evolved in the constitutional architecture for the benefit of the recipients of such powers. The vertical division of governance powers including to the Panchayats (though sans - legislative or judicial powers) is a structural device explicated by the Constitution: (i) to ensure effective representation of the people; (ii) to engender greater accuracy with which a local decision-maker could operate as a calculator of neighborhood cost ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of effective, if even minimal, control, over functions, finances, planning processes or personnel and the vestiture of effective control over these aspects of Panchayat Raj functions on State actors of various descriptions, constitutes, in our considered opinion, disabling (and not enabling), the Panchayat Raj Institutions, from functioning as institutions of 'self-Government'. Conduct of elections to the Panchayat Raj Institutions, in any State is too complex, expensive and rigorous an exercise to have been constitutionally intended as a symbolic exercise or as a legitimizing devise to confer local democratic legitimacy to de-facto governance by State-employed and controlled actors. Local area democracy is, post 73rd amendment, our constitutional creed not a pyrrhic or symbolic ritual, arduous in execution, expensive in implementation and pointless in practice and effect. 168. The learned Attorney General for India has pointed out that on a true and fair construction of the provisions of Part-IX, the State's role in the functioning of Panchayats is not obliterated. The Panchayats do not have full-blown autonomy under the constitutional dispensation; the State is neithe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evolve more and more powers to PRIs. If according to the first logic - the devolution of powers to the Panchayats is within the exclusive and constitutionally uninstructed discretion of the State and the State Legislature; the Union Executive has no legitimate status to advise the State as to how it should exercise its plenary and exclusive discretion. This ambiguity has not been explained. 172. This post 73rd Amendment constitutional construct requires balance between the State's presence in the functioning of the Panchayats to ensure the preservation of the overall State interests in its myriad State policies, administrative and governance concerns on one hand and the sustenance of the constitutionally defined 'self-Government' personality of the Panchayats, on the other. This balance is itself a critical constitutional value. Such a balance is achieved only when the State's presence does not overawe the Panchayats, by choking State and State agent control. State control over the Panchayats that clearly oversteps the legitimate State interest, to co-ordinate Panchayats' functions as a part of the State-wide governance concerns, would amount to State control di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate concerns. 136. The provisions of the 1994 Act and the complementary statutory rules and the administrative instructions (analyzed supra and in the Appendix), transgress the constitutional limitations on the States' role, the permissible limits of participation and control with respect to the Panchayats; the States' legislative and statutory instructions enable impermissible intrusions into the functional and financial domains of the Panchayats and usurp total control over the personnel from the Panchayats and vest such control in the State and State agents; such intrusions and controls by the State stultify the self-Government characteristics of the Panchayats as constitutionally defined. The transgressions, intrusions and controls, substantially overstep the participatory and oversight functions that the State may legitimately perform in regulating the affairs of the Panchayats in the interests of the vitality of their functioning and in effectuation of the State's obligation to harmonize the functioning of the Panchayats with the larger State interests and concerns, 177. The 1994 Act is a legislation intended to effectuate the purposes and provisions of Part IX of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am Panchayat Fund and the like. Chapter-IV sets out provisions in respect of public safety, convenience and health and the powers and functions of a Gram Panchayat in this regard. Chapter-V sets out the general and miscellaneous provisions in relation to Gram Panchayat. Part-III sets out provisions relating to the constitution and incorporation, composition, powers and functions of Mandal Parishads including mode of election of members, reservation of seats, qualifications and disqualifications of candidates for election, method of appointment, powers and functions of a Mandal Parishad Development Officer and other officers and employees of Mandal Parishads, Mandal Parishad Fund and the like. Part-IV incorporates provisions relating to constitution, incorporation, composition, powers and functions of Zilla Parishads including provisions relating to elections, qualifications and disqualifications of candidates for election, reservation of seats, appointment and control of Chief Executive Authority and his powers and functions, provisions relating to special invitees and respecting the funds of the Zilla Parishad. Part-V sets out provisions relating to constitution, powers and functi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution of a Gram Sabha comprises all persons whose names occur in the electoral roll for the Gram Panchayat and requires that the Gram Sabha shall meet at least twice every year to consider the specified matters which shall be placed before it by the Gram Panchayat including annual statement of accounts and audit report, program of the work for the year or any new program not covered by the budget or annual program, proposals for fresh taxation or any enhancement of existing taxes, selection of schemes, of beneficiaries and location etc. The Gram Panchayat is also required to give due consideration to any suggestions of the Gram Sabha. Rules relating to the holding of the meetings of the Gram Sabha are issued in G.O. Ms. No. 162 PR RD Department, dated 4.4.1997, fixing dates for conduct of the Gram Sabha meetings. These rules provide for issuing of a notice for the holding of the meeting, the business to be transacted at such meeting, the obligation of the Sarpanch to convene a meeting of the Gram Sabha on requisition as specified, maintenance of an attendance register for the meeting, procedures for drawing up the proceedings of the meetings and specification of the matters that ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of the Panchayat is held every month. The proviso to Section 31(1) enables the Panchayat Secretary to convene such a meeting where the Sarpanch fails to give approval for the convening of the meeting. Section 31(2) requires the Executive Officer to attend the meeting of the Gram Panchayat or any committee thereof and to participate in the discussion thereat but without the right to vote or move resolutions. Further functions of the executive authority are enumerated in Section 32, which include inter alia control over all the officers and servants of Gram Panchayat. The executive authority under this Section is empowered to exercise all powers and perform all functions specifically conferred or imposed on the executive authority by or under the Act, subject to restrictions and conditions as legislatively provided and to exercise executive power for carrying out the provisions of the Act and is made directly responsible for the due fulfillment of the purposes of the Act. In addition to the functions enumerated in Section 32 other functions of the Panchayat Secretary are explicated in the A.P. Panchayat Raj (Functions of Panchayat Secretary) Rules, 2002 published in G.O. Ms. No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atters of the beneficiary committee shall be such as may be prescribed. Section 40(2) mandates the constitution of functional committees for agriculture, public health, water supply, sanitation, family planning, education, communication and for other purposes of the Act; the constitution including co-option of members who are not members of the Gram Panchayat and that the powers of the functional committees shall be in accordance with the prescribed Rules. The rules relating to the beneficiary and functional committees are set out in G.O. Ms. No. 289, PR RD Department, dated 1.8.1997. The rules issued in G.O. Ms. No. 289 were amended in G.O. Ms. No. 472 PR RD Department dated 28.12.2002. As amended, the composition of each of the functional or beneficiary committees shall be as decided by the Government from time to time keeping in view the priorities of the subjects and policies. Rules 2 to 16 of the earlier rules are omitted by the amendment. In G.O. 289 the beneficiary committee was to comprise the Sarpanch of the Gram Panchayat to be the President of the committee, the other members being the concerned ward members or members (of wards) where the work is to be taken up, the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmunal land, for occupation of buildings under it's control and a duty in the form of a surcharge on seigniorage fees collected by the Government on materials other than minerals and minor minerals quarried in the village. Sub-section (6) of Section 60 enacts that any resolution of a Gram Panchayat abolishing an existing tax or reducing the rate at which the tax is levied, shall not come into effect without the previous approval of the Commissioner. Section 61 enacts that house tax, which shall be levied qua the legislative grant of power under Section 60(1)(a) shall, subject to such rules as may be prescribed, be levied on all the houses in the village on any of the prescribed bases. This provision prohibits levy of house tax on poultry sheds and their annexes. Sub-section (4) of Section 61 empowers the Government to make rules providing for exemption of special classes of houses from taxes, the manner of ascertaining the annual capital value of the houses or the categories into which they fall for the purpose of taxation, persons who shall be liable to pay taxes, grant of exemption from the taxes on grounds of poverty, grant of vacancy and other remission and the circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lished in the gazette and for special and specified reasons therein to direct any Gram Panchayat to levy the house tax referred to in Section 60(1)(a) at such rates and with effect from such date not being earlier than the first day of the year immediately following that in which the order is published. The direction of the Government in this behalf may be issued in respect of all the buildings in the Panchayat or of only such building belonging to the undertakings owned or controlled by the State Government or Central Government and the buildings belonging to the State Government, as may be specified in the order. As per Section 62(2), on its publication, the order of the Government would apply as if the Gram Panchayat had by a resolution determined to levy the tax at the rate and with effect from the date specified in the order and as if no other resolution of the Gram Panchayat under Section 60 determining the rate at which and the date from which the house tax shall be levied, had taken effect. Thus, an order of the State Government would supersede any earlier resolution of the Gram Panchayat with regard to levy of house tax. Under Section 62(3) the Gram Panchayat is disabled f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the year enable a supplemental or revised budget to be framed, sanctioned, submitted or modified in the manner provided in Sub-sections (1) and, (2) of Section 77. Section 137 of the Act empowers the executive authority, subject to prescribed restrictions and control, to compound offences against the provisions of the Act, rule or a byelaw made thereunder, for a sum not exceeding Rs. 500/- in respect of offences which by rules are declared compoundable. In re Mandal Parishads : Section 150 enables the Commissioner (of Panchayat Raj), subject to specified rules to divide each Mandal Parishad area into such number of territorial constituencies as may be specified in the notification made for this purpose. Section 149sets out the composition of the Mandal Parishad which includes persons elected under Section 151, the Member of the Legislative Assembly of the State representing a constituency which comprises wholly or partly the Mandal concerned, the Member of the House of People representing a constituency likewise and a person belong to minorities to be co-opted in the prescribed manner by the elected members, from among the voters in the Mandal. Section 151 provides for a direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 167(4) provides that subject to provisions of Section 168 the staff borne on the establishment of the Mandal Parishad and those working in the institutions and schemes transferred by the Government or the Head of the Department of Government to the Mandal Parishad shall be under the administrative control and supervision of the Mandal Parishad Development Officer. Sub-section (5) of Section 167 fortified by a non obstante clause in relation to Section 161 (1) but subject to the other provisions of the Act and the Rules made thereunder, provides that the Mandal Parishad is empowered to issue specific directions regarding the performance by the Mandal Parishad Development Officer of any of the functions assigned to him under the Act. The salaries, allowances, pension and contributions towards Provident Fund in relation to the Mandal Parishad Development Officers appointed by the Government for the Mandal Parishads are required to be paid from the consolidated fund of the State under Section 167(6). Sub-section (7) enacts that the Government shall have the power to make rules to regulate the classification and methods of recruitment, conditions of service, pay and allowances an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by rules under proviso to Article 309 of the Constitution. Under Sub-section (5) the Government is empowered to periodically issue directions to any Mandal Parishad, officer, authority or person thereof as appears necessary for giving effect to the provisions of Section 169 and the Mandal Parishad Development Officer, authority or person is ordained to comply with such directions. Provisions in respect of the budget of a Mandal Parishad are set out in Section 174, under which the Mandal Parishad Development Officer is required to frame the budget and place it before Mandal Parishad by the prescribed date and the Mandal Parishad is required to sanction the budget with such modification as it thinks fit. The budget so sanctioned has to be submitted by the Mandal Parishad Development Officer to the Zilla Parishad and in the absence of a Zilla Parishad to the District Collector. The Zilla Parishad or the District Collector, as the case may be, if satisfied that adequate provision has not been made in the budget for giving effect to the provisions of the Act, are empowered to approve the budget with modifications as are necessary to effectuate the provisions of the Act. Sub-section (3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or holding officer under the Zilla Parishad in accordance with the rules made by the Government The Chief Executive Authority is entitled to attend the meetings of the Zilla Parishad or any of its Standing Committees and to participate in the discussion therein, however, without the power to vote or to move any resolution. The Chief Executive Authority may also call for information, returns, and statement of accounts or report from any officer or servant of the Zilla Parishad or a Mandal Parishad. He is also empowered to exercise supervisory control over the acts of officers and servants holding office under the Zilla Parishad or the institutions thereunder in matters of executive administration, accounts and records of Zilla Parishad or its institutions. He also has powers of supervision and control in respect of execution of all the activities of the Zilla Parishad including the powers of entry and inspection of any works under the management of the Zilla Parishad. He is empowered to enter into agreement and sign and execute them in the name and on behalf of the Zilla Parishad. He is required to implement specific directions issued by the Zilla Parishad regarding the performance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... functions of Zilla Parishad are enumerated in Section 192 including the powers and functions as may be entrusted to it by rules made in this behalf with regard to the subjects enumerated in the First Schedule, The Zilla Parishad is also empowered to examine and approve the budgets of the Mandal Parishads in the district, distribute the funds allotted to the district by the Central or State Government among the Mandal Parishads and Mandals in the district, to co-ordinate and consolidate the plans prepared in respect of Mandals in the district, to prepare plans in respect of the entire district, to secure the execution of plans, projects, schemes or other works in respect of individual Mandals or common to two or more Mandals in the district and to generally supervise the activity of Mandal Parishads in the district. Sub-section (2) of Section 192 empowers the Zilla Parishad, with the approval of the Government, to levy contribution from the funds of the Mandal Parishads in the district. Section 193 empowers the Chairperson of a Zilla Parishad to exercise administrative control over the Chief Executive Authority for the purpose of implementation of the resolutions of the Zilla Paris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted to the Government by the Chief Executive Authority through the Chairperson. If the Government is satisfied that adequate provision has not been made therein or that it is otherwise unsatisfactory for giving effect to the provisions of the Act, the Government is empowered to approve the budget with such modifications, as it considers necessary to secure such provisions. Where a budget is not sanctioned by the Zilla Parishad as required under Sub-section (1) and by the date prescribed under Sub-section (2), the Chief Executive Authority is required to submit the budget to the Government who may thereupon, approve the budget as if it were submitted after sanction by the Zilla Parishad. General Powers: Section 249 enacts the powers of the Government to remove a Sarpanch, President or a Chairperson for wilful omission or refusal to carry out the orders of the Government for the proper working of the concerned local body, for abuse of position or of the powers vested, for misconduct in the discharge of duties or for persistent default in the performance of functions and duties entrusted under the Act, to the detriment of the functioning of the concerned local body or where a Sarpa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of the Mandal Parishad [Section 153 (1)]. (E) Each Mandal within a District is a territorial constituency for the Zilla Parishad [Section 178] and one member from each such territorial constituency shall be elected to the Zilla Parishad directly by the registered voters of the territorial constituency [Section 179]. (F) The Chairperson and Vice-Chairperson of a Zilla Parishad are to be elected from among the elected members of the Zilla Parishad [Section 181]. Reservations: Reservation of seats to elected offices for Scheduled Castes and Tribes and Backward Classes, Women belong to these categories and for women belonging to the general category is provided; for Gram Panchayat [Section 99]; for Mandal Parishad [Section 152] and for Zilla Parishad [Section 180], Similar reservation structure is provided for the post of a Sarpanch of Gram Panchayat [Section 15]; for the Office of President and Vice-President of the Mandal Parishad [Section 153 (2)] and for the Office of the Chairperson of the Zilla Parishad [Section 181 (2)]. Tenure of Office: For the Members of the Gram Panchayat [Section 13]; Sarpanch [Section 14]; Members of the Mandal Parishad [Section 154]; President and Vice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned by the State Government and subject to other restrictions on the types of advertisements and notices in respect of which a tax may be levied [Section 63]. (D) The Government at a rate to be fixed by it shall levy a duty on transfers of property and the duty so levied is to be apportioned among the three levels of Panchayat Institutions in such manner as may be prescribed by rules made by the Government. The Government is also empowered to exempt any instrument or class of instruments from the levy of this duty [Section 69]. (E) The power of a Gram Panchayat to levy vehicle tax under Section 60(3)(i) is also subject to any exemptions or restrictions as may be ordained by rules made by the Government. (F) A Gram Panchayat is also ordained to levy a special tax on houses, subject to prescribed rules and at rates to be prescribed, to provide for expenses connected with public utilities as specified [Section 71]. (G) Section 75 stipulates the purposes for which Gram Panchayat Fund should be applied, inter alia, under Section (2) of Section 75, the salaries, allowances, pensions, pensionary contributions and Provident Fund contributions of its officers and servants should be paid out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titutions for the development of cottage, village and small scale industries and the like, such share of State taxes or fees as may be prescribed, proceeds from taxes of fees which the Zilla Parishad may, under law, levy, income from endowments or trusts administered by it, donations and contributions from the Mandal Parishad or the public, such contributions as it may levy from Mandal Parishads, with the previous approval of the Government and any other income from remunerative enterprises. Sub-section (2) requires the Government to make an annual grant at the rate of Rs. 2/- per person residing in the district and Sub-section (3) ordains that the expenses of the Zilla Parishad shall include the salaries and allowances of its officers and other employees, allowances to be paid for special invitees to any meetings of the Zilla Parishad, the allowances for attending the meetings of a Zilla Parishad or Standing Committees and any item of expenditure directed by the Government for carrying out the purposes of the Act and such other expenses as may be necessary for such purposes. Election Commission: In conformity with Article 243K in Part IX of the Constitution of India, Part-V of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chayat Raj Institutions in the State (Village, Intermediate and District levels) in respect of the matters enumerated in Clauses (a) and (b) of Article 243G of the Constitution including the matters listed in Eleventh Schedule. The discretion is conditioned by the constitutional instructions that the Panchayats should be enabled to function as institutions of self-Government. Any effort on the part of the State Legislature that divests or withholds conferment of effective power of self-governance on the elected representatives of the Panchayats would tantamount to a legislation that subverts the constitutional powers delineated in Part IX of the Constitution. He has also taken a view that denial by the State Legislature of any financial resources to the Panchayats would negate the Constitutional purpose. In that view of the matter, he has observed that some of the provisions of A.P. Panchayat Raj Act, 1994 including Sections 32 , 60 to 62, 77, 137, 167, 174, 186 and 199 negatively impact the self-Government characteristics of the Panchayats without discernible and redeeming State interest and legitimate Governmental purposes and the complementary statutory rules and the administrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nwisdom, the justness or otherwise of the law. If that which is passed into law is within the scope of the power conferred on a Legislature and violates no restrictions on that power, the law, must be upheld whatever a Court may think of it. We are also of the view that the words endow them with such powers and authority as may be necessary to enable them used in Article 40 of the Constitution and the similar words used in Article 243G also cannot be so interpreted to mean that the extent of the powers and authority endowed by the State Legislature should be limitless or be to the fullest extent. Both the provisions have left it to the wisdom of the State Legislature even as regards the extent of the powers and authority to be endowed on the Panchayat Raj Institutions. 185. On the reasons aforementioned of ours, we are in complete agreement with the conclusions arrived at by P.S. Narayana, J., and hold that writ of mandamus as has been sought by the petitioners cannot be granted in view of the clear language employed in Article 243G of the Constitution and the writ petitions deserves to be dismissed. In view of the majority opinion, the writ petitions are dismissed. There shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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