REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4135-4152 OF 2010 (Arising out of SLP (C) Nos.3802-3819 of 2009)  

Bhanumati etc. etc. ..Appellant(s)

Versus  

State of Uttar Pradesh through  Its Principal Secretary and  Others   ..Respondent(s)

WITH CIVIL APPEAL NOS. 4153/10 @ SLP (C) No.4320/09, 4154- 55/10 @ SLP (C) No.4322-23/09, 4156-57/10 @ SLP (C)  No.4515-16/09,  4158/10  @  SLP  (C)  No.4517/09,  4159- 64/10  @  SLP  (C)  No.4554-59/09,  4165/10  @  SLP  (C)  No.4941/09, 4166/10 @ SLP (C) No.4960/09, 4167/10 @  SLP  (C)  No.4964/09,  4168/10  @  SLP  (C)  No.5481/09,  4169/10  @  SLP  (C)  No.5439/09,  4170/10  @  SLP  (C)  No.5902/09, 4171/10 @ SLP (C) No.9180/09, 4172/10 @  SLP  (C)  No.9343/09,  4173/10  @  SLP  (C)  No.9352/09,  4174-75/10 @ SLP (C) No.7225-26/09, 4176/10 @ SLP (C)  No.7651/09, 4177/10 @ SLP (C) No.10069/09, 4178/10 @  SLP (C) No.10543/09

J U D G M E N T

GANGULY, J.

1. These  appeals  have  been  filed  assailing  the  

judgment dated 6th February, 2009 by the Lucknow  

Bench of Allahabad High Court whereby the High  

Court upheld the Constitutional validity of U.P.  

Panchayat Laws (Amendment) Ordinance, 2007 (U.P.  

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Ordinance 26 of 2007) which later on became U.P.  

Panchayat Laws (Amendment) Act, 2007 (U.P. Act  

44  of  2007).  As  the  validity  of  the  said  

amendment was in issue in all the appeals, they  

were  heard  together  and  are  decided  by  this  

judgment.

2.In  the  course  of  argument  before  this  Court  

factual controversies were not very much raised.  

The appeals were mostly argued on the legality  

of the amendment from various angles which will  

be considered hereinabelow.

3. The administration of Kshetra Samities and Zila  

Parishads in Uttar Pradesh (hereinafter, UP) is  

governed by Uttar Pradesh Kshetra Panchayats and  

Zila  Panchayats  Adhiniyam,  1961  (hereinafter,  

‘1961  Act’).  Prior  to  that  there  was  United  

Provinces Panchayat Raj Act, 1947. The 1961 Act  

suffered several amendments in 1965, 1976, 1990,  

1994, 1998 & 2007 by UP Act 16 of 1965, UP Act  

37 of 1976, UP Act 20 of 1990, UP Act 9 of 1994  

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and UP Act 44 of 2007 respectively. The 1994  

amendment by UP Act 9 of 1994 was in respect of  

both the 1947 and 1961 Acts. That amendment was  

made in keeping with the objectives incorporated  

in the Constitution (73rd Amendment) Act, 1992.

4.Several  aspects  of  the  amendment  act  were  

challenged. Firstly, it was challenged that the  

offices  of  “Up-Pramukh”,  “Senior  Up-Pramukh”,  

‘Junior Up-pramukh” and “Upadhyaksha” have been  

omitted by Section 9 of the Amendment Act, being  

UP Act 44 of 2007 (hereinafter, the amendment  

Act).

5.Similarly amendment was made to United Provinces  

Panchayat  Raj  Act,  1947  by  Section  2  of  the  

Amendment Act.  

6.For  a  proper  appreciation  of  the  effect  of  

amendment, Section 2 of the amendment Act is set  

out:

“In the United Provinces Panchayat Raj Act,  1947, hereinafter in this chapter referred  

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to  as  the  principal  Act,  the  word  “Up- Pradhan”  wherever  occurring  including  the  marginal headings, shall be omitted.”

7.There has been a general amendment to 1961 Act  

by Section 9 of the amendment Act. Section 9 is  

therefore set out:

“In the Uttar Pradesh Kshettra Panchayats  and  Zila  Panchayats  Adhiniyam,  1961,  hereinafter in this chapter referred to as  the principal Act, the words “Up-Pramukh”,  “Senior  Up  Pramukh”,  “Junior  Up  Pramukh”  and  “Upadhyaksha”  wherever  occurring  including  the  marginal  headings  and  Schedules, shall be omitted.”

8.Challenging the said amendment, it was urged by  

the learned counsel that by bringing about such  

amendment,  the  essence  of  the  Panchayati  

principles has been eroded and provisions have  

been made for executive interference.

9.The  learned  counsel  further  urged  that  such  

amendment has been made in total contravention  

of the principle enshrined in Part IX of the  

Constitution. It was urged that Part IX of the  

Constitution provides for a three tire structure  

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of Panchayat administration and the reasons for  

such a three tire is to minimize the scope of  

executive  interference.  It  was  urged  if  the  

Pradhan or Pramukh of the unit of governance in  

Panchayat  is,  for  any  reason,  removed  or  

disqualified, from running the administration,  

the up-pradhan or the up-pramukh, prior to such  

amendment  could  have  taken  over,  whereas  the  

abolition of those offices will pave the way of  

executive interference.

10.Challenging the amendment it was further urged  

that there is no concept of no-confidence motion  

in the detailed constitutional provision under  

Chapter IX of the Constitution. Therefore, the  

incorporation  of  the  said  provision  in  the  

statute  militates  against  the  principles  of  

Panchayti Raj Institution. Apart from that the  

substitution of the provision ‘more than half’  

in place of ‘not less than two thirds’ and the  

words  ‘one  year’  in  place  of  ‘two  years’  in  

Sections 15 and 28 of the amendment Act further  

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dilutes  the  principle  of  stability  and  

continuity which are main purposes behind the  

object  and  reasons  of  the  Constitutional  

amendments in Part IX of the Constitution.

11.The  exact  provisions  of  the  aforesaid  

amendments by the impugned amendment Act are as  

follows:

“In Section 15 of the principal Act,-

(a) in  sub-section  (11)  for  the  words  “not less than two thirds” the words  “more  than  half”  shall  be  substituted.

(b) In sub-section (12) and sub-section  (13) for the words “two years” the  words  “one  year”  shall  be  substituted.

In Section 28 of the principal Act-

(a) in  sub-section  (11)  for  the  words  “not less than two thirds” the words  “more  than  half”  shall  be  substituted.

(b) in sub-section (12) and sub-section  (13) for the words “two years” the  words  “one  year”  shall  be  substituted.

12. In order to appreciate these submissions this  

Court  may  examine  the  genesis  of  the  

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Constitutional provisions about Panchayat prior  

to 73rd Amendment of the Constitution.  

13. Prior to the Constitution (73rd Amendment) Act,  

1992, the Constitutional provisions relating to  

Panchayat was confined to Article 40.  Article  

40, one of our Directive Principles, runs as  

under:

“40. Organization of village Panchayats -  The State takes steps to organize village  panchayats and endow them with such powers  and authority as may be necessary to enable  them  to  function  as  units  of  self  government.”

14.The  Constitution’s  quest  for  an  inclusive  

governance  voiced  in  the  Preamble  is  not  

consistent with Panchayat being treated merely  

as a unit of self-Government and only as part of  

Directive Principle.

15.If  the  relevant  Constituent  Assembly  Debates  

are perused one finds even that Constitutional  

provision  about  Panchayat  was  inducted  after  

strenuous efforts by some of the members.  From  

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the  Debates  we  do  not  fail  to  discern  a  

substantial  difference  of  opinion  between  one  

set  of  members  who  wanted  to  finalize  the  

Constitution solely on the Parliamentary model  

by totally ignoring the importance of Panchayat  

principles  and  another  group  of  members  who  

wanted  to  mould  our  Constitution  on  Gandhian  

principles of village Panchayat.   

16. The word ‘Panchayat’ did not even once appear in  

the draft Constitution. Graneville Austin in his  

treaties ‘Indian Constitution: Corner Stone of a  

Nation’  (Oxford)  noted  that  the  drafting  

Committee did not even discuss in its meetings  

the alternative principles of Gandhian view of  

panchayat. The draft Constitution was published  

on 26th February, 1948. (See page 34 in Austin)

17.One  of  the  strongest  critics  of  the  draft  

Constitution  was  Dr.  Rajendra  Prasad  and  he  

opined that “the village has been and will even  

continue to be our unit in this country.”

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18.Subsequently  other  members  like  M.A.  Ayangar  

and N.G. Ranga also suggested some amendments to  

the draft Constitution and both harped on the  

introduction  of  Panchayati  Raj  principles.  

Their  arguments  quoted  by  Graneville  Austin,  

were on the following lines:

“The  State  shall  establish  self-governing  Panchayats for every village or a group of  villages with adequate powers and funds to  give training to rural people in democracy  and  to  pave  the  way  for  effective  decentralization of political and economic  power.” (Page 36)

19.Mr. Ayangar expressed his views very strongly  

by saying “Democracy is not worth anything, if  

once  in  blue  moon  individuals  are  brought  

together for one common purpose, merely electing  

X, Y and Z to the assembly and then disperse.”  

20.Somewhat similar opinion was expressed by S.C.  

Mazumdar and his views were, ”the main sources  

of its (India’s) strength lies in ‘revitalized’  

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villages but he accepted that for real purpose a  

strong  unifying  central  authority  is  a  

necessity.”

21.The  opinion  expressed  by  S.C.  Mazumdar  thus  

struck a balance between Gandhian principles and  

the parliamentary model of the Constitution.

22. However, under the strong pressure of criticism  

from  various  members,  the  Assembly  rather  

grudgingly accepted that an article concerning  

the  Panchayat  should  be  included  in  the  

Directive Principles. On 22nd November, 1948, K.  

Santhanam moved the official amendment and that  

is how Article 40, in its present form, came  

into existence. The amendment was accepted by  

Dr. Ambedkar.

23.About  this  article,  Garneville  Austin  

commented:

“The incorporation of Article 40 in the  Constitution has proved to have been less a  gesture to romantic sentiment than a bow to  realistic  insight.  And  the  aim  of  the  

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article has long been generally accepted:  if  India  is  to  progess,  it  must  do  so  through reawakened village life.” (Page 38  Supra)

24.Participating in the debates and supporting the  

amendments, some of the members made comments  

which are still very pertinent in appreciating  

the roots of our democratic policy on which is  

based  the  edifice  of  our  Constitutional  

democracy.

“Sir in my opinion the meaning of this  Constitution would have been nothing so far  as crores and crores of Indian people are  concerned unless there was some provision  like  this  in  our  Constitution.  There  is  another point also viz., for thousands and  thousands of years the meaning of our life  in  India  as  it  has  been  expressed  in  various activities, was this that complete  freedom for every individual was granted.  It was accepted that every individual had  got full and unfettered freedom; but as to  what  the  individual  should  do  with  that  freedom  there  was  some  direction.  Individuals  had  freedom  only  to  work  for  unity. With that freedom they are to search  for  unity  of  our  people.   There  was  no  freedom to an individual if he works for  disruption  of  our  unity.   The  same  principle was also accepted in our Indian  constitution from time immemorial.  Every  village like organic cells of our body was  given full freedom to express itself but at  

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the same time with that freedom they were  to work only to maintain and preserve the  unity of India.   

Sir  our  village  people  are  so  much  familiar  with  this  system  that  if  today  there is our Constitution no provision like  this they would not have considered this as  their  own  Constitution  or  as  something  known  to  them,  as  something  which  they  could  call  their  own  Constitution  or  as  something known to them, as something which  they  could  call  their  own  country’s  Constitution.   Therefore,  Sir,  I  am  glad  and  I  congratulate  both  my  friend  the  Hon’ble  Mr.  Santanam  and  the  Hon’ble  Dr.  Ambedkar on moving this amendment as well  as  for  acceptance  of  the  same.   Sir,  I  commend this.”   (Shri  Surendra  Mohan  Ghosh:  West  Bengal:  General)

25.The  opinion  of  Seth  Govind  Das  from  Central  

Provices and Berar is equally relevant:

“Ours is an ancient, a very ancient country  and the village has had always an important  position here.  This has not been so with  every  ancient  country.   In  Greece,  for  instance, towns had greater importance than  villages.   The  Republics  of  Athens  and  Sparta occupy a very important place in the  world history today.  But no importance was  attached by them to the villages.  But in  our  country  the  village  occupied  such  an  important position that even in the legends  contained  in  most  ancient  books  –  the  Upanishads – if there are descriptions of  forest  retreats,  of  the  sages,  there  are  also  descriptions  of  villages.   Even  in  

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Kautilya’s  Arthashastra  there  are  to  be  found references to our ancient villages.  Modern historians have also admitted this  fact.   We  find  the  description  of  our  ancient  village  organization  in  ‘Ancient  Law’  by  Mr.  Henry  Man,  ‘Indian  Village  Community’  by  Baden  Powell  and  in  ‘Fundamental Unity of India’ by Sri. B.C.  Pal.  I would request the members of this  House to go through these books.  They will  come  to  know  from  these  books  the  great  importance, the village have had in India  since the remotest times.  Even during the  Muslim  rule  villages  were  considered  of  primary  importance.   It  was  during  the  British regime that the villages fell into  neglect and lost their importance.  There  was a reason for this.  The British Raj in  India was based on the support of a handful  of  people.   During  the  British  regime  provinces,  districts,  tehsils  and  such  other units were formed and so were formed  the Taluqdaris, Zamindaris and Malguzaris.  The British Rule lasted here for so many  years  only  on  account  of  the  support  of  these few people.

Just  as  Mahatma  Gandhi  brought  about  revolution  in  every  other  aspect  of  this  country’s life so also he brought about a  revolution  in  village  life.   He  started  living in a village.  He caused even the  annual  Congress  Sessions  to  be  held  in  villages.  Now that we are about to accept  this motion I would like to recall to the  memory  of  the  members  of  this  House  a  speech he had delivered here in Delhi, to  the  Asiatic  Conferences.   He  had  then  advised  the  delegates  of  the  various  nations to go to Indian villages if they  wanted  to  have  the  glimpse  of  the  real  India. He had told them that they would not  get a picture of real India from the towns.  Even today 80% of our population lives in  

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villages and it would be a great pity if we  make  no  mention  of  our  villages  in  the  Constitution.”

26.In  other  representative  democracies  of  the  

world committed to a written Constitution and  

rule of law, the principles of self Government  

are also part of the Constitutional doctrine.  

It  has  been  accepted  in  the  American  

Constitution  that  the  right  to  local  self-

Government is treated as inherent in cities and  

towns.  Such rights cannot be taken away even by  

legislature.   The  following  excerpts  from  

American Jurisprudence are very instructive:-

“Stated differently, it has been laid down  as  a  binding  principle  of  law  in  these  jurisdictions that a statute which attempts  to take away from a municipal corporation  its power of self-Government, except as to  matters which are of concern to the State  as a whole, is in excess of the power of  the legislature and is consequently void.  Under  this  theory,  the  principle  of  home  rule, or the right of self-Government as to  local  affairs,  is  deemed  to  have  existed  before the constitution.”  (Volume 56, American Jurisprudence, Article  125.)

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27. Under  73rd Amendment  of  the  Constitution,  

Panchayat  became  an  ‘institution  of  self  

governance’ which was previously a mere unit,  

under Article 40.

28. 73rd Amendment heralded a new era but it took  

nearly more than four decades for our Parliament  

to  pass  this  epoch  making  73rd Constitution  

Amendment - a turning point in the history of  

local self-governance with sweeping consequences  

in  view  of  decentralization,  grass  root  

democracy,  people’s  participation,  gender  

equality and social justice.  

29.Decentralization  is  perceived  as  a  pre-

condition for preservation of the basic values  

of a free society.  Republicanism which is the  

‘sine qua non’ of this amendment is compatible  

both  with  democratic  socialism  and  radical  

liberalism.  Republicanism presupposes that laws  

should be made by active citizens working in  

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concert.  Price of freedom is not merely eternal  

vigilance but perpetual and creative citizen’s  

activity.

30. This 73rd Amendment is a very powerful ‘tool of  

social engineering’ and has unleashed tremendous  

potential  of  social  transformation  to  bring  

about a sea-change in the age-old, oppressive,  

anti  human  and  status  quoist  traditions  of  

Indian  society.   It  may  be  true  that  this  

amendment will not see a quantum jump but it  

will certainly initiate a thaw and pioneer a  

major  change,  may  be  in  a  painfully  slow  

process.   

31. In order to understand the purport of the 73rd  

Constitutional  amendment  in  Part  IX  of  the  

Constitution, it is important to keep in view  

the Statements of Objects and Reasons behind the  

amendment.  Excerpts from the same are set out:-

“THE  CONSTITUTION(SEVENTY-THIRD  AMENDMENT)  ACT, 1992

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Statement  of  Objects  and  Reasons  appended  to  the  Constitution  (Seventy- second  Amendment)  Bill,  1991  which  was  enacted as the Constitution (Seventy-third  Amendment) Act, 1992

Though the Panchayati Raj Institutions  have been in existence for a long time, it  has been observed that these institutions  have not been able to acquire the status  and  dignity  of  viable  and  responsive  people’s bodies due to a number of reasons  including  absence  of  regular  elections,  prolonged  suppressions,  insufficient  representation  of  weaker  sections  like  Scheduled  Castes,  Scheduled  Tribes  and  women, inadequate devolution of powers and  lack of financial resources.   

Article  40  of  the  Constitution  which  enshrines one of the Directive Principles  of State Policy lays down that the State  shall  take  steps  to  organize  village  panchayats and endow them with such powers  and authority as may be necessary to enable  them  to  function  as  units  of  self- Government.    In  the  light  of  the  experience in the last forty years and in  view of the short-comings which have been  observed, it is considered that there is an  imperative  need  to  enshrine  the  Constitution  certain  basic  and  essential  features of Panchayati Raj Institutions to  impart  certainty,  continuity  and  strength  to them.”   

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32. What was in a nebulous state as one of Directive  

Principles  under  Article  40,  through  73rd  

Constitutional  Amendment  metamorphosed  to  a  

distinct  part  of  Constitutional  dispensation  

with  detailed  provision  for  functioning  of  

Panchayat.  The main purpose behind this is to  

ensure  democratic  decentralization  on  the  

Gandhian principle of participatory democracy so  

that  the  Panchayat  may  become  viable  and  

responsive people’s bodies as an institution of  

governance and thus it may acquire the necessary  

status and function with dignity by inspiring  

respect of common man.   

33. In  our  judgment,  this  73rd Amendment  of  the  

Constitution  was  introduced  for  strengthening  

the  perambular  vision  of  democratic  

republicanism  which  is  inherent  in  the  

constitutional framework.   

34. On a close perusal of the 73rd Constitutional  

Amendment, one would be tempted to say that the  

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vision  of  Surendra  Nath  Banerjee,  expressed  

almost  a  century  ago,  about  our  local  self-

Government has been revived.  

35.From the proceeding of the Council of Governor  

General of India (April 1913 to March 1914) we  

find, Surendra Nath articulated:

“..the  village  is  the  fundamental,  the  indestructible  unit  of  the  Indian  Social  system,  which  has  survived  the  over-throw of dynasties and the fall of  empires.  Sir, our village organizations  carry the mind back to the dawn of human  civilization and the early beginning of  local  self-government.   They  are  dead  now, but the instinct is there, deep down  in the national consciousness, and under  the  fostering  care  of  a  wise  and  beneficent  government,  such  as  we  now  have it may be revivified into a living  flame.   Our  system  of  local  self- government  has  been  built  up  from  the  top.  That, perhaps, was inevitable under  the circumstances.  But the time has now  come when it should be strengthened from  below and the foundations laid well and  deep.....”

36. Unfortunately that time came very late and as  

late  as  1993  when  73rd Amendment  of  the  

Constitution was brought about.   

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37.India  has  been  and  continues  to  be  a  

predominantly rural country.  There are 5 lakh  

78 thousand 430 villages in which 74% of her  

people, which is about 750 million, live.  Out  

of  this  village  population  48%  live  below  

poverty line.  Though our Constitution professes  

to be a democratic republic but our rural set up  

is largely feudal.  The agrarian relationship of  

the  majority  of  the  people  is  very  weak  and  

helpless compared with few land holding families  

which  control  economic  interest  of  larger  

sections of village society.  Unfortunately our  

independence has not been able to change our  

political  priorities  and  dynastic  democratic  

pattern is the order of the day.

38.The  vast  majority  of  the  rural  masses  still  

have  to  obey  decisions  taken  by  few  people  

living in metropolitan centers representing an  

alien culture and ethos.   

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39. Here it may not be out of context to remember  

what was said by Bhagat Singh and Batukeshwar  

Dutta on 6th June, 1929 in their joint statement  

in connection with the criminal trial they faced  

in Crown vs. Bhagat Singh.  In paragraphs 7 and  8  of their joint statement, the great martyr  

Bhagat Singh said:

“7.  I, Bhagat Singh was asked in the lower  Court  as  to  what  we  meant  by  the  word  ‘Revolution’.  In answer to that question, I  would say that Revolution does not necessarily  involve a sanguinery strife, nor is there any  place in it for individual vendetta.  It is  not the cult of the bomb and the pistol.  By  Revolution we mean that the present order of  things which is based on manifest injustice  must change.  The producers or the labourers,  inspite of being the most necessary element of  society are robbed by their exploiters of the  fruits of their labour and deprived of their  elementary right.  On the one hand the peasant  who  grows  corn  for  all  starves  with  his  family, the weaver who supplies world markets  with  textile  fabrics  cannot  find  enough  to  cover his own and his children’s bodies; the  masons, the smith and the carpenters who rear  magnificent palaces live and perish in slums;  and on the other the capitalists exploiters,  the parasites of society squander millions on  their whims.  These terrible inequalities and  forced  disparity  of  chances  are  heading  towards chaos.  This state of affairs cannot  last; and it is obvious that the present order  of Society is merry-making on the brink of a  volcano  and  the  innocent  children  of  the  

21

Exploiters  no  less  than  millions  of  the  exploited  are  walking  on  the  edge  of  a  dangerous precipice. The whole edifice of this  civilization,  if  not  saved  in  time,  shall  crumble.   A  radical  change,  therefore  is  necessary; and it is the duty of those who  realize  this  to  reorganize  society  on  the  socialistic basis.  Unless this is done and  the exploitation of man by man and of nations  by  nations,  which  goes  marquerading  as  Imperialism, is brought to end, the sufferings  and carnage with which humanity is threatened  today cannot be prevented and all talks of  ending  wars  and  ushering  in  an  era  of  universal peace is undisguised hypocricy.  By  revolution we mean the ultimate establishment  of  an  order  of  society  which  may  not  be  threatened by such a breakdown; and in which  the sovereignty of the Proletariat should be  recognized;  and  as  the  result  of  which  a  world-federation should redeem humanity from  the bondage of capitalism and the misery of  imperial wars.  

8.  xxx xxxx Revolution  is  the  inalienable  right  of  

mankind.  Freedom is the imprescriptable birth  right  of  all.   The  labourer  is  the  real  sustainers of society.  The Soverignty of the  people is the ultimate destiny of the workers.  

For these ideals, and for these faith, we  shall welcome any suffering to which we may be  condemned.  To the altar of this revolution we  have  brought  our  youth  as  incense;  for  no  sacrifice is too great for so magnificent a  cause.

We are content; we await the advent of  the Revolution ‘Long live the Revolution’.”

40.The ideas of Bhagat Singh, even if not wholly  

but substantially have been incorporated in the  

22

preambular vision of our Constitution.  But the  

dream for which he sacrifised his life has not  

been fulfilled and the relevance of what he said  

can hardly be ignored. The ground realities, if  

at all, changed only marginally.   

41.Let  these  momentous  words  of  a  convict  in  

British India form part of the judicial record  

in the last Court of our Democratic Republic,  

the largest democracy in the world.  

42. The  73rd Amendment  of  the  Constitution,  this  

Court thinks, is a forward step to bring about  

the  radical  changes  in  our  social  structure  

which inspired the struggle of Bhagat Singh, the  

great martyr.    

43. When faced with a challenge to interpret  such  

laws,  Courts  have  to  discharge  a  duty.   The  

Judge cannot act like a phonographic recorder  

but he must act as an interpreter of the social  

context  articulated  in  the  legal  text.   The  

23

Judge must be, in the words of Justice Krishna  

Iyer,  “animated  by  a  goal  oriented  approach”  

because the judiciary is not a “mere umpire, as  

some  assume,  but  an  active  catalyst  in  the  

Constitutional scheme” [See  Authorized Officer,  Thanjavur and another vs. S. Naganatha Ayyar and  others, (1979) 3 SCC 466].

44. The Panchayati Raj Institutions structured under  

the said amendment are meant to initiate changes  

so that the rural feudal oligarchy lose their  

ascendancy in village affairs and the voiceless  

masses,  who  have  been  rather  amorphous,  may  

realize their growing strength.  Unfortunately,  

effect of these changes by way of Constitutional  

Amendment has not been fully realized in the  

semi-feudal set up of Indian politics in which  

still voice of reason is drowned in an uneven  

conflict  with  the  mythology  of  individual  

infallibility  and  omniscience.   Despite  high  

ideals of Constitutional philosophy, rationality  

in our polity is still subordinated to political  

24

exhibitionism, intellectual timidity and petty  

manipulation.  The  73rd Amendment  of  the  

Constitution is addressed to remedy these evils.

45. The changes introduced by the 73rd Amendment of  

the  Constitution  have  given  Panchayati  Raj  

Institutions a Constitutional status as a result  

of which it has become permanent in the Indian  

Political system as a third Government.

46.On  a  careful  reading  of  this  amendment,  it  

appears  that  under  Article  243B  of  the  

Constitution, it has been mandated that there  

shall be Panchayat at the village, intermediate  

and  district  levels  in  accordance  with  the  

provisions of Part IX of the Constitution.   

47.Article  243C  provides  for  composition  of  

Panchayat  which  contemplated  the  post  of  

Chairperson.   

25

48.Article 243D provides for reservation of seats  

and  243E  provides  for  duration  of  Panchayat.  

Article  243F  enumerates  the  grounds  of  

disqualification of membership of the Panchayat  

and 243G prescribes the powers, authority and  

responsibilities  of  Panchayat.   There  are  

several other provisions relating to powers of  

the  Panchayat  to  impose  taxes  and  for  

constitution of Finance Commission in order to  

review financial position of the Panchayat.  The  

accounts of the Panchayat are also to be audited  

as  per  Constitutional  mandate  under  Article  

243J.   There  are  detailed  provisions  for  

elections  of  Panchayat  under  Article  243K.  

Article 243O imposes the bar to interference by  

Courts in electoral matters of the Panchayat.

49.In this connection particular reference may be  

made to the provision of Article 243G of the  

Constitution which is set out below:

“243G.  Powers,  authority  and  responsibilities of Panchayat. - Subject to  

26

the  provisions  of  this  Constitution  the  Legislature of a State may, by law, endow  the  Panchayats  with  such  powers  and  authority  and  may  be  necessary  to  enable  them to function as institutions of self- government  and  such  law  may  contain  provisions for the devolution of powers and  responsibilities  upon  Panchayats,  at  the  appropriate  level,  subject  to  such  conditions  as  may  be  specified  therein,  with respect to-  

(a) the preparation of plans for economic  development and social justice;  

(b)  the  implementation  of  schemes  for  economic development and social justice as  may be entrusted to them including those in  relation  to  the  matters  listed  in  the  Eleventh Schedule.”  

50. The said article is to be read in conjunction  

with 11th Schedule of the Constitution which came  

with the said 73rd Amendment.   

51. To alter the planning process of the country a  

statutory planning body like District Planning  

Committee has been created.  To ensure regular  

election to these bodies Election Commission has  

been  created.   In  order  to  ensure  people’s  

participation Gram Sabha, a body at the grass  

27

root level, has been constitutionally planned.  

A perusal of the Constitution provision in the  

73rd Amendment would show that the success of the  

system does not depend merely on the power which  

has  been  conferred  but  on  the  responsibility  

which has been bestowed on the people.

52. Under  the  Constitutional  scheme  introduced  by  

the 73rd Amendment Government State is no longer  

a service provider but is a felicitator for the  

people to initiate development on the basis of  

equity and social justice and for the success of  

the system people has to be sensitized about  

their role and responsibility in the system.   

53.Thus  the  composition  of  the  Panchayat,  its  

function, its election and various other aspects  

of its administration are now provided in great  

detail  under  the  Constitution  with  provisions  

enabling the State Legislature to enact laws to  

implement  the  Constitutional  mandate.   Thus  

formation of Panchayat and its functioning is  

28

now a vital part of the Constitutional scheme  

under Part IX of the Constitution.   

54.Obviously such a system can only thrive on the  

confidence of the people on those who comprise  

the system.  

55.In the background of these provisions, learned  

counsel  for  the  appellants  argued  that  the  

provision of no-confidence, being not in Part IX  

of  the  Constitution  is  contrary  to  the  

Constitutional scheme of things and would run  

contrary to the avowed purpose of Constitutional  

amendment which is meant to lend stability and  

dignity  to  Panchayati  Institutions.  It  was  

further  argued  that  reducing  the  period  from  

‘two years’ to ‘one year’ before a no-confidence  

motion  can  be  brought  further  unsettles  the  

running of the Panchayat.  It was further urged  

that under the impugned amendment that such a  

no-confidence motion can be carried on the basis  

29

of  a  simple  majority  instead  of  two  thirds  

majority dilutes the concept of stability.

56.This Court is not at all persuaded to accept  

this  argument  on  various  grounds  discussed  

below.

57.A Constitution is not to give all details of  

the provisions contemplated under the scheme of  

amendment.  In the said amendment, under various  

articles,  like  articles  243A,  243C(1),  (5),  

243D(4), 243X(6), 243F(1) (6), 243G, 243H, 243I  

(2), 243J, 243(K) (2), (4) of the Constitution,  

the legislature of the State has been empowered  

to  make  law  to  implement  the  Constitutional  

provisions.   

58.Particularly  Article  243C(5),  which  provides  

for election of Chairperson, specially provides:

“243C Composition of Panchayats – xxx xxx (5) The Chairperson of-  

30

(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.  

59. Therefore, the argument that the provision of  

no-confidence motion against the Chairman, being  

not in the Constitution, cannot be provided in  

the  statute,  is  wholly  unacceptable  when  the  

Constitution  specifically  enables  the  State  

Legislature to provide the details of election  

of the Chairperson.   

60.It  may  be  mentioned  that  the  statutory  

provision  of  no-confidence  motion  against  the  

Chairperson  is  a  pre-Constitutional  provision  

and was there in Section 15 of the 1961 Act.

61.In  this  context,  Article  243N  of  the  

Constitution in Part IX is relevant and set out  

below:

31

“243N. Continuance  of  existing  laws  and  Panchayats.  -  Notwithstanding  anything  in  this  Part,  any  provision  of  any  law  relating to Panchayats in force in a Stale  immediately  before  commencement  of  the  Constitution (Seventy-third Amendment) Act,  1992,  which  is  inconsistent  with  the  provisions of this Part, shall continue to  be in force until amended or repealed by a  competent  Legislature  or  other  competent  authority  or  until  the  expiration  of  one  year  from  such  commencement  whichever  is  earlier:  

Provided that all the Panchayats existing  immediately before such commencement shall  continue  till  the  expiration  of  their  duration,  unless  sooner  dissolved  by  a  resolution  passed  to  that  effect  by  the  Legislative Assembly of that State or, in  the case of a State having a Legislative  Council, by each House of the Legislature  of that State.  

62.It  is  clear  that  the  provision  for  no-

confidence  motion  against  the  Chairperson  was  

never repealed by any competent legislature as  

being inconsistent with any of the provisions of  

Part  IX.   On  the  other  hand  by  subsequent  

statutory provisions the said provision of no-

Confidence  has  been  confirmed  with  some  

ancillary changes but the essence of the no-

32

confidence provision was continued.  This Court  

is clearly of the opinion that the provision of  

no-confidence is not inconsistent with Part IX  

of the Constitution.  

63.The  provision  of  Article  243N  of  the  

Constitution  makes  it  clear  if  the  Panchayat  

laws,  in  force  in  a  State  prior  to  

Constitutional  Amendment,  contain  provisions  

which  are  inconsistent  with  Part  IX,  two  

consequences will follow:

(1) Those  provisions  will  continue  until  

amended  or  repealed  by  competent  

legislature or authority, and  

(2) Those  provisions  will  continue  until  one  

year from commencement of the Constitution  

amendment, if not repealed earlier.

64.Immediately after the Constitution amendment by  

way of Part IX, came Uttar Pradesh Panchayat  

Laws (Amendment) Act, 1994.  This was enacted on  

33

22.4.1994 to give effect to the provisions of  

Part  IX  of  the  Constitution.   But  the  pre-

existing provision of the no-confidence was not  

repealed.  Rather it was confirmed with minor  

changes  in  subsequent  amendment  Acts  of  1998  

being UP Act 20 of 1998 and which was further  

amended in the impugned amendment Act of 2007  

being UP Act 44 of 2007.

65.The appellants have not challenged U.P. Act 20  

of 1998 by which Section 15 of 1961 Act was  

continued in amended version.

66.Therefore,  the  continuance  of  no-confidence  

provision has not been challenged – what has  

been challenged is the reduction of the period  

from  ‘two  years’  to  ‘one  year’  and  the  

requirement majority from “not less than two-

thirds” to “more than half”.  It is thus clear  

that the statutory provision of no-confidence is  

not contrary to Part IX of the Constitution.

34

67.Apart from the aforesaid reasons, the arguments  

by appellants cannot be accepted in view of a  

very well known Constitutional Doctrine, namely,  

the Constitutional doctrine of silence.  Michael  

Folley  in  his  treaties  on  ‘The  Silence  of  

Constitutions’ (Routledge, London and New York)  

has argued that in a constitution “abeyances are  

valuable,  therefore,  not  in  spite  of  their  

obscurity  but  because  of  it.   They  are  

significant for the attitudes and approaches to  

the Constitution that they evoke, rather than  

the content and substance of their structures.”  

(Page 10)  The learned author elaborated this  

concept further by saying “Despite the absence  

of  any  documentary  or  material  form,  these  

abeyances are real and are an integral part of  

any Constitution.  What remains unwritten and  

intermediate can be just as much responsible for  

the  operational  character  and  restraining  

quality of a Constitution as its more tangible  

and codified components”.  (Page 82)

35

68.Many issues in our constitutional jurisprudence  

evolved out of this doctrine of silence.  The  

basic structure doctrine vis-à-vis Article 368  

of the Constitution emerged out of this concept  

of silence in the Constitution.

69. A Constitution which professes to be democratic  

and  republican  in  character  and  which  brings  

about  a  revolutionary  change  by  73rd  

Constitutional  amendment  by  making  detailed  

provision  for  democratic  decentralization  and  

self Government on the principle of grass root  

democracy cannot be interpreted to exclude the  

provision of no-confidence motion in the respect  

of  the  office  of  the  Chairperson  of  the  

Panchayat just because of its silence on that  

aspect.  

70. As noted above the provision of no-confidence  

was a pre-73rd Amendment statutory provision and  

that was continued even after the 73rd Amendment  

in keeping with mandate of Article 243N.  This  

36

continuance of the no-confidence provision, as  

noted  above  was  not  challenged  by  the  

appellants.  This aspect has been noted by the  

High Court in the impugned judgment.  The High  

Court noted:

“The original Act of the 1961 provides  block period of 12 months for initiation  of no-confidence motion in reference to  Kshettra  Samiti/Panchayat,  which  was  amended in the year 1965 by U.P. Act No.  16  of  1965  and  the  block  period  was  enhanced to ‘two years’ from ’12 months’.  Again in the year 1990 the block period  was reduced as the words ‘two years’ was  substituted by words ‘one year’ by U.P.  Act No. 20 of 1990. In the year 1998 U.P.  Act No. 20 of 1998 again amended Section  15  and  the  block  period  was  again  enhanced  to  ‘two  years’.   In  the  year  2007 again by U.P. Act No. 44 of 2007 the  term ‘two years’ was substituted by ‘one  year’ by virtue of which the block period  of ‘two years’ was reduced to ‘one year’.

71.The amended provision for the required majority  

for no-confidence motion also has been noted in  

impugned judgment of the High Court.

“The majority as provided in Section 15(11) of  the Original Act of 1961 for passing of no- confidence motion was ‘more than half of the  total number of members of Kshettra Samiti’.

37

In the year 1994 by U.P. Act No. 1994 the  term  ‘member’  in  Section  15(11)  was  substituted by ‘elected members’ hence in 1994  also, the motion was to be carried through  with  the  support  of  more  than  half  of  the  total number of elected members of Kshettra  Panchayat.

In  the  year  1998  the  required  majority  was  enhanced  to  ‘two-third’  from  more  than  half as the word ‘more than half’ in Section  15(11) was substituted by the word ‘not less  than two-third’ by U.P. Act No. 20 of 1998.

Lastly,  in  the  year  2007  again  the  provision relating to the majority for moving  no-confidence motion was amended by U.P. Act  No. 44 of 2007 and the words ‘not less than  two-third’ was substituted by the words ‘more  than half’ in Section 15(11).”

72.The argument that as a result of the impugned  

amendment  stability  and  dignity  of  the  

Panchayati Raj Institution has been undermined  

is also not well founded.  As a result of no-

confidence motion the Chairperson of a Panchayat  

loses  his  position  as  a  Chairperson  but  he  

remains  a  member,  and  the  continuance  of  

Panchayat as an institution is not affected in  

the least.   

73.Going by the aforesaid tests, as we must, this  

Court  does  not  find  any  lack  of  legislative  

38

competence on the part of the State Legislature  

in enacting the impugned amendment Act.

74.The  learned  counsel  for  the  appellant  cited  

several judgments in support of the contention  

that the impugned amendment in relation to the  

provisions  for  no-confidence  are  unreasonable  

and ultra vires the provisions of Part IX.

75.It has already been pointed out that the object  

and the reasons of Part IX are to lend status  

and dignity to Panchayati Raj Institutions and  

to impart certainty, continuity and strength to  

them.

76.The  learned  counsel  for  the  appellant  

unfortunately,  in  his  argument,  missed  the  

distinction  between  an  individual  and  an  

institution. If a no-confidence motion is passed  

against the chairperson of a Panchayat, he/she  

ceases to be a Chairperson, but continues to be  

a  member  of  the  Panchayat  and  the  Panchayat  

39

continues  with  a  newly  elected  Chairperson.  

Therefore, there is no institutional set back or  

impediment to the continuity or stability of the  

Panchayati Raj Institution.

77. These  institutions  must  run  on  democratic  

principles.  In democracy all persons heading  

public bodies can continue provided they enjoy  

the confidence of the persons who comprise such  

bodies.   This  is  the  essence  of  democratic  

republicanism. This explains why this provision  

of no-confidence motion was there in the Act of  

1961  even  prior  to  the  73rd Constitution  

amendment  and  has  been  continued  even  

thereafter.   Similar  provisions  are  there  in  

different States in India.   

78.Section 211 of the Tamil Nadu Panchayats Act,  

1994  contains  a  provision  for  motion  of  no-

confidence  in  respect  of  Vice-President  of  

panchayat and Section 212 contains a provision  

for  motion  of  non  confidence  in  respect  of  

40

chairman  or  vice-chairman  of  panchayat  union  

council.

79.In  the  Bombay  Village  Panchayats  Act,  1958  

under Section 35 similar provision for motion of  

no-confidence is to be found.

80.In  West  Bengal  Panchayat  Act,  1973  under  

Section 12 there is a provision for the removal  

of Pradhan and Up-Pradhan if he has lost the  

confidence of the members of the Gram Panchayat.

81.In  M.P.  Panchayat  Raj  Avam  Gram  Swaraj  

Adhiniyam,  1993,  Section  21  provides  for  No-

confidence  motion  against  Sarpanch  and  Up-

Sarpanch.

82.There is a similar provision of No-confidence  

motion against Sarpanch under Section 19 of the  

Punjab Panchayati Raj Act, 1994 as also under  

Section 157 the Kerala Panchayat Raj Act, 1994.

41

83.The Karnataka Panchayat Raj Act, 1993 Section  

49  has  similar  provision  of  a  motion  of  no-

confidence against Adhyaksha or Upadhyaksha of  

Gram Panchayat.  

84.Such  a  provision  is  wholly  compatible  and  

consistent  with  the  rejuvenated  Panchayat  

contemplated in Part IX of the Constitution and  

is not at all inconsistent with the same.   

85.Democracy  demands  accountability  and  

transparency  in  the  activities  of  the  

Chairperson especially in view of the important  

functions entrusted with the Chairperson in the  

running of  Panchayati Raj Institutions.  Such  

duties can be discharged by the Chairperson only  

if he/she enjoys the continuous confidence of  

the majority members in the Panchayat.  So any  

statutory  provision  to  demonstrate  that  the  

Chairperson  has  lost  the  confidence  of  the  

majority  is  conducive  to  public  interest  and  

adds strength to such bodies of self Governance.  

42

Such  a  statutory  provision  cannot  be  called  

either unreasonable or ultra vires Part IX of  

the Constitution.

86.Any head of a democratic institution must be  

prepared  to  face  the  test  of  confidence.  

Neither  the  democratically  elected  Prime  

Minister of the Country nor the Chief Minister  

of  a  State  is  immune  from  such  a  test  of  

confidence under the Rules of Procedure framed  

under Articles 118 and 208 of the Constitution.  

Both  the  Prime  Minister  of  India  and  Chief  

Ministers of several States heading the Council  

of Ministers at the Centre and in several States  

respectively have to adhere to the principles of  

collective responsibilities to their respective  

houses  in  accordance  with  Articles  75(3)  and  

164(2) of the Constitution.  

87.The learned counsel for the appellant therefore  

compared the position of the Chairperson of a  

Panchayat with that of the President of India  

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and argued that both are elected for five years  

and  President’s  continuance  in  office  is  not  

subject to any vote of no-confidence.  The post  

of Chairperson should have the same immunity.

88.This is an argument of desperation and has been  

advanced, with respect, without any regard to  

the vast difference in Constitutional status and  

position between the two posts.  The two posts  

are  not  comparable  at  all  by  any  standards.  

Even  the  President  of  India  is  subject  to  

impeachment proceedings under Article 61 of the  

Constitution.   No  one  is  an  ‘imperium  in  

imperio’ in our Constitutional set up.   

89. In this matter various judgments have been cited  

by the learned counsel for the appellant.  Of  

those judgments only the judgment in  Mohan Lal  Tripathi vs. District Magistrate, Rai Bareilly &  others [1992 (4) SCC 80] is on the question of  the  no-confidence  motion  against  President  of  

the  municipality  elected  directly  by  the  

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electorate.  No-confidence motion was passed by  

the board against the said President and not by  

the  electorate.   That  was  challenged.   This  

Court repelled the challenge and upheld the no-

confidence motion holding that the recall by the  

Board  amounts  to  recall  by  the  electorate  

itself.

90. Upholding  the  aforesaid  provision  of  no-

confidence which is virtually a power of recall,  

this Court in  Mohan Lal Tripathi (supra) held  that the recall of the elected representative,  

so long it is in accordance with law, cannot be  

assailed on abstract laws of democracy. (Para 2,  

page 86 of the report)

91. Upholding the concept of vote of no-confidence  

in Mohan Lal Tripathi (supra) this Court further  elaborated the concept as follows:

“...Vote  of  no-confidence  against  elected  representative  is direct  check flowing  from  accountability. Today democracy is not a rule  of 'Poor' as said by Aristotle or of 'Masses'  

45

as opposed to 'Classes' but by the majority  elected from out of the people on basis of  broad  franchise.  Recall  of  elected  representative  is  advancement  of  political  democracy ensuring true, fair, honest and just  representation of the electorate. Therefore, a  provision  in  a  statute  for  recall  of  an  elected representative has to be tested not on  general  or  vague  notions  but  on  practical  possibility  and  electoral  feasibility  of  entrusting the power of recall to a body which  is representive in character and is capable of  projecting  views  of  the  electorate.  Even  though  there  was  no  provision  in  the  Act  initially for recall of a President it came to  be introduced in 1926 and since then it has  continued and the power always vested in the  Board  irrespective of  whether the  President  was  elected  by  the  electorate  or  Board.  Rationale  for  it  is  apparent  from  the  provisions of the Act...”

92. In Ram Beti vs. District Panchayat Raj Adhikari  &  others [1998  (1)  SCC  680]  this  Court  has  upheld  the  provisions  of  Section  14  of  U.P.  

Panchayat Raj Act, 1947 as amended by U.P. Act  

No. 9 of 1994 which empowers members of the Gram  

Panchayat to remove the Pradhan of Gram Sabha by  

vote of no-confidence.  This Court held that  

such  a  provision  is  not  unconstitutional  nor  

does it infringe the principle of democracy or  

provisions of Article 14.  This decision was  

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rendered  in  1997,  which  is  after  the  

incorporation of Part IX of the Constitution.  

93. In  fact,  in  Ram  Beti (supra),  this  Court  considered the impact of 73rd Amendment and also  

took  into  consideration  the  provisions  of  

Article 243N introduced by 73rd Amendment.  The  

ratio in  Mohan Lal Tripathi (supra) was also  affirmed in Ram Beti (supra).  

94. In the background of this admitted position, the  

argument  that  2007  Amendment  Act  lacks  

legislative  competence  has  no  merit.   The  

relevant  legislative  entry  in  respect  of  

Panchayat  is  in  Entry  5,  list  II  of  the  7th  

Schedule.  The said entry is:

“5. Local Government, that is to say, the  constitution  and  powers  of  municipal,  corporations, improvement trusts, district  boards  mining  settlement  authorities  and  other local authorities for the purpose of  local  self  Government  or  village  administration.”

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95. It  is  well  known  that  legislative  entry  is  

generic in nature and virtually constitutes the  

legislative field and has to be very broadly  

construed.   These  entries  demarcate  ‘areas’,  

‘fields’  of  legislation  within  which  the  

respective laws are to operate and do not merely  

confer legislative power as much.  The words in  

the  entry  should  be  held  to  extend  to  all  

ancillary and subsidiary matters which can be  

reasonably said to be encompassed by it.  [See  

Hans  Muller  of  Nurenburg vs.  Superintendent,  Presidency Jail, Calcutta and others, AIR 1955  SC  367;  Navinchandra  Mafatlal,  Bombay vs.  Commissioner  of  Income  Tax,  Bombay  City,  AIR  1955 SC 58, and also the decision of this Court  

rendered in  Jilubhai Nanbhai Khachar etc. etc.  vs. State of Gujarat and another reported in AIR  1995 SC 142 at 148].

96. About  interpretation  of  entries  in  the  7th  

Schedule  reliance  was  placed  by  the  learned  

counsel for the appellant on the judgment of  

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Constitution  Bench  of  this  court  in  Diamond  Sugar Mills Limited and another vs. The State of  Uttar Pradesh and another reported in AIR 1961  SC 652.  In that case the Court considered the  

meaning of the word ‘local area’ in Entry 52 of  

the  State  List  in  the  7th Schedule.   The  

Constitution Bench of this Court held that in  

considering the meaning of the words in the 7th  

Schedule, the Court should bear in mind that the  

entries  of  such  schedule  should  be  liberally  

interpreted  as  they  confer  rights  of  

legislation.  But at the same time the Court  

should  be  careful  enough  not  to  extend  the  

meaning  of  the  words  beyond  their  reasonable  

connotation in an anxiety to preserve the power  

of the legislature.  On the basis of the above  

interpretation this Court held that ‘premises of  

a factory’ is not a ‘local area’.

97. The  said  decision  has  no  application  in  the  

present case in as much as Entry 5 of List II of  

the  7th Schedule  is  wide  enough  to  authorize  

49

legislation  of  no-confidence  against  the  

Chairperson of the Panchayat.  

98. The  next  judgment  cited  on  this  point  was  

rendered in the case of State of Tamil Nadu vs.  M/s. Payarelal Malhotra and Others [1976 (1) SCC  834].

99.In  that  decision  meaning  of  the  expression  

‘that is to say’ was discussed with reference to  

Stroud’s Judicial Dictionary.

100.Relying  on  Stroud,  this  Court  held  the  

expression ‘that is to say’ is resorted to for  

clarifying and fixing the meaning of what is  

defined.  There is no difficulty about applying  

those principles to the facts of this case.  In  

Payarelal (supra), this Court was construing the  relevant entry in the context of single point  

Sales  Tax  subject  to  special  conditions  when  

imposed  on  separate  categories  of  specified  

goods.   Therefore,  there  is  vast  situational  

50

difference between the case in Payarelal (supra)  and the present one.  

101.The  last  decision  cited  on  this  point  was  

rendered in the case of  Commissioner of Sales  Tax  M.P.  vs.  Popular  Trading  Company,  Ujjain  [2000  (5)  SCC  511].   This  was  also  a  case  

relating to Sales Tax and the expression ‘that  

is  to  say’  has  been  used.   This  Court  in  

explaining  the  purport  of  ‘that  is  to  say’  

referred to the ratio in Payarelal (supra). Even  if we accept the said ratio in construing the  

ambit of Entry 5 of List II in the 7th Schedule,  

this Court finds that the impugned provision of  

no-confidence  against  the  Chairperson  of  the  

Panchayat is very much encompassed within Entry  

5  if  we  read  the  entry  liberally  and  in  

accordance  with  well  settled  principles  of  

reading legislative entries in several lists of  

the  7th Schedule.   The  decision  on  Popular  Trading (supra) does not at all advance the case  of the appellant.  

51

102.Learned counsel for the State of U.P. cited  

some decisions to point out how the Court should  

consider  the  challenge  to  the  constitutional  

validity of a Statute. Some of the decisions  

cited by the learned counsel are quite helpful  

and are considered by this Court.

103.In the case of State of Bihar & Ors. vs. Bihar  Distillery Limited – JT 1996 (10) S.C. 854, this  Court in paragraph 18 at page Nos. 865-866 of  

the report laid down certain principles on how  

to judge the constitutionality of an enactment.  

This Court held that in this exercise the Court  

should  (a)  try  to  sustain  validity  of  the  

impugned  law  to  the  extent  possible.  It  can  

strike  down  the  enactment  only  when  it  is  

impossible to sustain it; (b) the Court should  

not approach the enactment with a view to pick  

holes or to search for defects of drafting or  

for the language employed; (c)  the Court should  

consider that the Act made by the legislature  

52

represents  the  will  of  the  people  and  that  

cannot  be  lightly  interfered  with;  (d)   the  

Court should strike down the Act only when the  

unconstitutionality  is  plainly  and  clearly  

established; (e) the Court must recognize the  

fundamental nature and importance of legislative  

process and accord due regard and deference to  

it.  This Court abstracted those principles from  

various judgments of this Court.

104.In  State  of  Bihar (supra),  this  Court  also  considered the observations of Lord Denning in  

Seaford Court Estates Ltd. vs. Asher – [1949 (2)  K.B.  481]  and  highlighted  that  the  job  of  a  

judge in construing a statute must proceed on  

the constructive task of finding the intention  

of Parliament and this must be done (a) not only  

from the language of the statute but also (b)  

upon  consideration  of  the  social  conditions  

which gave rise to it  (c)  and also of the  

mischief to remedy which the statute was passed  

and  if necessary (d) the judge must supplement  

53

the written word so as to give ‘force and life’  

to the intention of the legislature.

105.According  to  Lord  Denning  these  are  the  

principles laid down in Heydon’s case and is  

considered one of the safest guides today. This  

Court also accepted those principles. (See para  

21 at page 867 of the report).

106.Reliance was also placed on another decision of  

this Court in Dharam Dutt and Ors. vs. Union of  India & Ors. – (2004) 1 SCC 712. This judgment  is relevant in order to deal with the argument  

of the learned counsel for the appellants that  

in  reducing  the  period  for  bringing  the  no-

confidence motion from ‘two years’ to ‘one year’  

and then in reducing the required majority from  

2/3rd to  simple  majority,  the  legislature  was  

guided  by  the  sinister  motive  of  some  

influential  Ministers  to  get  rid  of  a  local  

leader who, as a Pradhan of Panchayat, may have  

54

become  very  powerful  and  competitor  of  the  

Minister in the State.

107.In Dharam Dutt (supra) this Court held that if  the  legislature  is  competent  to  pass  a  

particular law, the motive which impelled it to  

act are really irrelevant.  If the legislature  

has competence, the question of motive does not  

arise at all and any inquiry into the motive  

which persuaded Parliament into passing the Act  

would be of no use at all. (See page 713 of the  

report).

108.Reliance  was  also  placed  on  the  Constitution  

Bench judgment of this Court in State of Gujarat  vs. Mirzapur Moti Kureshi Kassab Jamat and Ors.  –  (2005)  8  SCC  534.  Chief  Justice  Lahoti  

speaking for the Bench laid down in para 37,  

page 562 of the report that the legislature is  

in  the  best  position  to  understand  and  

appreciate the needs of the people as enjoined  

in the Constitution. The Court will interfere in  

55

legislative  process  only  when  the  statute  is  

clearly violative of the right conferred on a  

citizen under Part III or when the Act is beyond  

the legislative competence of the legislature.  

Of course the Court must always recognize the  

presumption in favour of the constitutionality  

of  the  statutes  and  the  onus  to  prove  its  

invalidity  lies  heavily  on  the  party  which  

assails it.

109.Chief Justice Lahoti also laid down several  

parameters  in  considering  the  constitutional  

validity of a statute at page No.562-563 of the  

report. One of the parameters which is relevant  

in this case is however important the right of  

citizen or an individual may be it has to yield  

to the larger interests of the country or the  

community.

110.Considering all these aspects, this Court sees  

no reason to take a view different from the one  

taken by the Hon’ble High Court.  

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111.For the reasons aforesaid this Court upholds  

the  Constitutional  validity  of  the  U.P.  

Panchayat Laws (Amendment) Act, 2007 (U.P. Act  

44 of 2007) and the appeals are dismissed. The  

judgment of the Hon’ble High Court is upheld and  

affirmed. All interim orders are vacated. There  

shall be no order as to costs.

.....................J. (G.S. SINGHVI)

.....................J. (ASOK KUMAR GANGULY)

New Delhi May 4, 2010

57

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s).4135-4152 OF 2010 (arising out of SLP(C)No(s).3802-3819/2009)

BHANUMATI ETC. ETC. ...Appellant(s)

                VERSUS

STATE OF UTTAR PRADESH THROUGH ITS PRINCIPAL SECRETARY  AND OTHERS ...Respondent(s)

WITH C.A. NO(s).4153 OF 2010 @ SLP(C) NO.4320 of 2009

C.A. NO(s).4154-4155 OF 2010 @ SLP(C) NO.4322-4323 of 2009

C.A. NO(s).4156-57 OF 2010 @ SLP(C) NO.4515-4516 of 2009

C.A. NO(s).4158 OF 2010 @ SLP(C) NO. 4517 of 2009

C.A. NO(s).4159-4164 OF 2010 @ SLP(C) NO.4554-4559 of 2009

C.A. NO(s).4165 OF 2010 @ SLP(C)   NO. 4941 of 2009

C.A. NO(s).4166 OF 2010 @ SLP(C)   NO. 4960 of 2009

C.A. NO(s).4167 OF 2010 @ SLP(C)   NO. 4964 of 2009

C.A. NO(s).4168 OF 2010 @ SLP(C)   NO. 5481 of 2009

C.A. NO(s).4169 OF 2010 @ SLP(C)   NO. 5439 of 2009

C.A. NO(s).4170 OF 2010 @ SLP(C)   NO. 5902 of 2009

C.A. NO(s).4171 OF 2010 @ SLP(C)   NO. 9180 of 2009

C.A. NO(s).4172 OF 2010 @ SLP(C)   NO. 9343 of 2009

C.A. NO(s).4173 OF 2010 @ SLP(C)   NO. 9352 of 2009

C.A. NO(s).4174-75 OF 2010 @ SLP(C)NO. 7225-7226 of 2009

C.A. NO(s).4176 OF 2010 @ SLP(C)   NO. 7651 of 2009

C.A. NO(s).4177 OF 2010 @ SLP(C)   NO. 10069 of 2009

C.A. NO(s).4178 OF 2010 @ SLP(C)   NO. 10543 of 2009

O R D E R

All  applications  for   intervention/impleadment  

are allowed.

Leave granted.

Heard learned counsel for the parties at length.

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2

After  hearing  the  learned  counsel  for  the  

parties, we are of the view that the provisions of U.P.  

Panchayat  Laws  Amendment  Act,  2007  (U.P.  Act  No.44  of  

2007) are constitutionally valid.  We, therefore, affirm  

the views taken by the learned Judges of the High Court.  

Consequently, interim orders, if any, stand vacated.

The appeals are dismissed with no order as to  

costs.  The detailed order follows.

........................J. (G.S. SINGHVI)             

........................J. (ASOK KUMAR GANGULY)       

NEW DELHI, May 04, 2010.

59