CWP No.7392 of 2011 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition.No.7392 of 2011 Date of decision: 12.5.2011 Nirbhai Singh ...Petitioner Versus State of Punjab and others ...Respondents CORAM: HON'BLE MR.JUSTICE ADARSH KUMAR GOEL ACTING CHIEF JUSTICE HON'BLE MR.JUSTICE AJAY KUMAR MITTAL 1. Whether Reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. M.K.Singla, Advocate for the petitioner. M/S P.S.Khurana, V.K.Sandhir, S.S.Sidhu, Sukhjinder Singh,P.S.Sekhon, C.L.Premi, Naiya Gill, Onkar Rai, O.S.Batalwi, Jagmeet Singh, Sandeep Arora, Nandal Jindal, L.S.Sidhu, Vikram Singh, P.S.Mirpur, Umesh Kumar, B.S.Makar and Manjeet Singh, Advocates for petitioners in connected cases. Mr. Rupinder Khosla, Addl.A.G.Punjab and Mr. Rajesh Bhardwaj, Addl.A.G.Punjab. Mr.R.K.Garg, Advocate for the caveator in CWP No.8249/2011. Mr. Balbir Singh, Advocate for respondent No.5 in CWP 8351/11. Adarsh Kumar Goel, ACJ. 1. This petition seeks quashing of the Punjab Panchayati Raj (Amendment) Act, 2011 whereby Section 19 of the Punjab Panchayati Raj Act, 1994 (for short, “the Act”) has been deleted which was notified on 21.4.2011 with retrospective effect from 1.7.2010. 1 CWP No.7392 of 2011 2. Case set out in the petition is that the Gram Panchayat Narike, Block Malerkotla, District Sangrur was one of the Panchayats constituted to which elections were held in the year 2008. Panches were elected directly and they elected a Sarpanch. On an application for holding a meeting to consider No Confidence Motion proposed against the Sarpanch, under section 19 of the Act as applicable, a meeting was convened for the purpose on 14.10.2010 and after consideration, No Confidence Motion was passed by six out of the nine members of the Panchayat. The Sarpanch, thus, stood removed from his office and alternative mechanism was put in place as per statutory provisions. On 14.12.2010, Ordinance No.9 of 2010 was issued by the Governor of Punjab deleting Section 19 of the Act, which was prospective. The Ordinance has now been replaced by the impugned Act notified on 21.4.2011 which is retrospective from 1.7.2010. The Act is a short one and is reproduced below:- “1. (1). This Act may be called the Punjab Panchayati Raj (Amendment) Act, 2011. (2) It shall come into force with effect from 1st July, 2010. Omission of section 19 of Punjab Act 9 of 1994 2. In the Punjab Panchayati Raj Act, 1994, section 19 shall be omitted. 3. The Punjab Panchayati Raj (Amendment Ordinance, 2010 Punjab Ordinance No.9 of 2010) is hereby repealed.” 3. Statement of objects and reasons for the impugned Act is as under:- “1. The Sarpanches of a Gram Panchayat are elected by the Panches of the Panchayat and Section 19 of Punjab Panchayati Raj Act, 1994 empowers the Panches to remove them from the office of Sarpanches by passing a resolution of No Confidence against them after a period of two years. 2 CWP No.7392 of 2011 2. The elections of Gram Panchayats were held in the year 2008 and since the statutory period of two years has been passed, a large number of applications from the Panches against their Sarpanches were received by the competent authority and by this the focus of the elected representatives of the people was shifted from development to the removal of their Sarpanches. 3. That due to the village factionalism, the Panches want to remove their Sarpanch to whom they have elected two years earlier. 4. That for the smooth functioning of a Gram Panchayat, the term of the Sarpanch should matched with the term of the Gram Panchayat whereas such present legal provision is encouraging the groupism in the village which is not good for the development of the villages. 5. Accordingly, the deletion of section 19 of Punjab Panchayati Raj Act, 1994 of the present Bill is being issued.” 4. In support of challenge to the Amendment Act, it is submitted that having regard to the constitutional objective of local self Government at the panchayat level, it is necessary that Sarpanch should have confidence of majority electing him and should be removable by a No Confidence Motion. Scheme of No Confidence Motion is necessary not only for smooth functioning of Panchayat but is also consistent with the constitutional value of democracy. Under the Act, Chapter II deals with the panchayats, Chapter VI deals with Panchayat Samitis for the blocks and Chapter VII deals with Zila Parishads for the districts. Prior to the impugned amendment, Section 19 provided for No Confidence Motion against Sarpanch and there are corresponding provisions for No Confidence Motion against Chairman/Vice Chairman of Panchayat Samiti and Chairman/Vice Chairman of Zila Parishad while provision for No Confidence Motion for Panchayat Samitis and Zila Parishads, has been returned, provision for No Confidence Motion 3 CWP No.7392 of 2011 against Sarpanch has been deleted which is discriminatory and arbitrary. Provision for No Confidence Motion has to be implied as Sarpanch is elected by the majority of Panches under Section 13A and an authority competent to appoint has authority to remove as per General Clauses Act incorporating the principle of common law. Deletion of section 19 is against the object of grass root democracy of giving authority to people’s elected representatives to appoint or remove a Sarpanch. Alternatively, it is submitted that deletion of section 19 and thereby taking away power of passing a No confidence Motion retrospectively from 1.7.2010 is arbitrary as it affects removal already lawfully effected prior to the Act i.e. on 14.10.2010 and taking over of the functions of the Sarpanch as per Section 87(1). Thus, retrospectivity affects vested rights arbitrarily. It has been stated by learned counsel for the parties that about 120 Sarpanches had been removed in similar manner by No Confidence Motion after 1.7.2010 and also before coming into force of the impugned Act and also before the issuance of Ordinance dated 14.10.2010. Some other No Confidence Motions were also pending. In some cases, fresh Sarpanches had been duly elected and notified. 5. Notice was issued and served on the respondents but no reply has been filed. It was stated that reply was not necessary as facts were not in dispute and only legal question was involved. 6. We have heard learned counsel for the parties. 7. On behalf of the State, the impugned Act has been justified on the ground that right to remove an elected representative has to be found in a statute and could not be exercised in absence thereof. The legislature was competent to legislate prospectively as well as retrospectively. Deletion of provision for No Confidence Motion was within the legislative competence. 4 CWP No.7392 of 2011 If legislature could make a provision for No Confidence Motion, it could delete the same. Requirement of a provision for No Confidence Motion was not a constitutional mandate but only creation of a statute. The deletion intends to achieve the object of smooth functioning of a panchayat and to avoid groupism in the village and to promote unhampered development. Even after deletion of provision for No Confidence Motion, a Sarpanch could be removed under sections 20 and 21. Section 20 provides for removal of Sarpanch by the Director for any misconduct specified therein while Section 21 provides for cessation from the office of Sarpanch on failure to deposit the amount as required under Section 216 for any loss caused to the Panchayat. Similarly, Section 5 provides for cessation of Sarpanch from the office for failure to hold two consecutive general meetings. Thus, deletion of provision for No Confidence Motion does not in any manner provide for arbitrary working of a Sarpanch. It being a matter of legislative policy, the choice of the legislature has to prevail. 8. The questions to be determined are as under:- (I) Whether legislature is competent to delete a provision providing for No Confidence Motion? (II) Whether deletion of the provision with retrospective effect could be held to be beyond the legislative competence or arbitrary? Re: (I) 9. Main submission on behalf of the petitioner is that under the Scheme of the Constitution, panchayats are basic units of self governance and though initially, this mandate was manifested in Article 40 of the Constitution, by way of a Directive Principle, by 73rd Amendment in the year 1993, Part IX was added to the Constitution. Under Article 243B, 5 CWP No.7392 of 2011 constitution of a panchayat is mandatory. The amended provisions also provide for conferment of important powers and responsibilities on panchayats, for imposition of taxes for raising funds for the panchayats and for constitution of a Finance Commission to review the financial position. The Panchayat has to plan for economic development and social justice and implement schemes for such purposes as have been mentioned in Eleventh Schedule to the Constitution. No doubt, the manner of election of Sarpanch has been left to the State legislature, the Panches are to be directly elected under Article 243C. Under the State law, Sarpanch is elected by Panches. Reliance has been placed on following judgments:- Ram Beti v. District Panchayat Raj Adhikar, (1998) 1 SCC 680, para 6. Bhanumati and others v. State of Uttar Pradesh, (2010) 12 SCC 1, paras 52 to 58, 66, 67. To submit that provision for No Confidence Motion is consistent with the principles of democracy. Bar Council of Delhi v. The Bar Council of India, AIR 1975 Delhi 200 Para 11 Bindhya Charan Sinha v. State of WB, AIR 2004 Cal 27, para 10 Mohan Chandra v. The ICA of India, AIR 1972 Delhi 9, para 43 Dr. Bool Chand v. Chancellor, Kurukshetra University, AIR 1968 SC 292, para 11 To submit that even in absence of a provision, an authority competent to appoint was competent to remove under the common law. E.P.Royappa v. State of Tamil Nadu, AIR 1974 SC 555 Maneka Gandhi v. Union of India, AIR 1978 SC 597 To submit that arbitrariness was a facet of Article 14 and a legislation could be questioned on the ground of arbitrariness and thus being violative of Article 14. Harbilas Rai Bansal v. State of Punjab and another, AIR 1996 SC 857(1) To submit that even deletion of a provision so as to result in discrimination could be set aside to enforce Article 14. 6 CWP No.7392 of 2011 Rai Ramkrishna and others v. State of Bihar, AIR 1963 SC 1667 State of Gujarat and another v. Raman Lal Keshav Lal Soni and others, (1983) 2 SCC 33 To submit that even though legislature may have power to make a law retrospectively, the retrospectivity could be questioned as arbitrary. 10. On the other hand, submission on behalf of the State is that provision for No Confidence Motion is not a creature of the Constitution but of the statute and in such a situation, it is within the competence of the State Legislature under Entry 5 of List II to make a provision or to delete the provision on the subject. Learned counsel for the State mainly relied upon judgment of the Hon’ble Supreme Court in Mohan Lal Tripathi v. District Magistrate, Rai Bareilly and others, (1992) 4 SCC 80 to submit that right of No Confidence Motion flows from a statute and the common law principle must remain stranger to the enacted election law. Reliance was also placed on judgment of the Hon’ble Supreme Court in Vijay v. State of Maharashtra and others, (2006) 6 SCC 289 to submit that a legislation can be retrospective. 11. It will be appropriate to reproduce some of the observations on which emphasis has been laid during hearing. In Mohan Lal Tripathi, it was observed:- “2. Democracy is a concept, a political philosophy, an ideal practised by many nations culturally advanced and politically mature by resorting to governance by representatives of the people elected directly or indirectly. But electing representatives to govern is neither a ‘fundamental right’ nor a ‘common law right’ but a special right created by the statutes,(N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, AIR 1952 SC 64; Jagan Nath v. Jaswant 7 CWP No.7392 of 2011 Singh AIR 1954 SC 210), or a ‘political right’ or ‘privilege’ and not a ‘natural’, ‘absolute’ or ‘vested right’ (American Jurisprudence, 2d, Vol.63, p.771). ‘Concepts familiar to common law and equity must remain strangers to Election Law unless statutorily embodied.’ (Jyoti Basu v. Debi Ghosal (1982) 1 SCC 691; Arun Kumar Bose v. Mohd. Furkan Ansari (1984) 1 SCC 91, Right to remove an elected representative, too, must stem out of the statute as ‘in the absence of a constitutional restriction it is within the power of a legislature to enact a law for the recall of officers’ American Jurisprudence, 2d, Vol.63, p.238). Its existence or validity can be decided on the provision of the Act and not, as a matter of policy. In the American Political Dictionary (Jack C. Plano/Milton Greenberg), the right of recall is defined as, ‘a provision enabling voters to remove an elected official from office before his or her term expired’. American Jurisprudence explains it thus, ‘Recall is a procedure by which an elected officer may be removed at any time during his term or after a specified time by vote of the people at an election called for such purpose by a specified number of citizens’ American Jurisprudence, 2d, Vol.63, p.770). It was urged that ‘recall gives dissatisfied electors the right to propose between elections that their representatives be removed and replaced by another more in accordance with popular will’ (Modern Political Constitution, 8th Edn. By C.S. Strong) therefore the appellant could have been recalled by the same body, namely, the people who elected him. Urged Shri Sunil Gupta, learned counsel, that since, ‘A referendum involves a decision by the electorate without the intermediary of representatives and, therefore, exhibits form of direct democracy’ (Dictionary of Political Thought by Roger Scrutton, 1982) the removal of the appellant by a vote of no-confidence by the Board which did not elect him was subversive of basic concept 8 CWP No.7392 of 2011 of democracy. Academically the submission appeared attractive but applied as a matter of law it appears to have little merit. None of the political theorists, on whom reliance was placed, have gone to suggest that an elected representative can be recalled, only, by the persons or body that elected him. Recall expresses the idea that a “public officer is indeed a ‘servant of the people’ and can therefore be dismissed by them” (Dictionary of Political Science and Law by Rudolph Reimanson). In modern political set up direct popular check by recall of elected representative has been universally acknowledged in any civilised system. Efficacy of such a device can hardly admit of any doubt. But how it should be initiated, what should be the procedure, who should exercise it within ambit of constitutionally permissible limits falls in the domain of legislative power. ‘Under a constitutional provision authorizing municipalities of a certain population to frame a charter for their own government consistent with and subject to the Constitution and laws of the State, and a statutory provision that in certain municipalities the Mayor and members of the municipal council shall be elected at the time, in the manner, and for the term prescribed in the charter, a municipal corporation has authority to enact a recall provision’ (American Jurisprudence, 2d, Vol.63, p.771). Therefore, the validity or otherwise of a no-confidence motion for removal of a President, would have to be examined on applicability of statutory provision and not on political philosophy. The Municipality Act provides in detail the provisions for election of President, his qualification, resignation, removal etc. Constitutional validity of these provisions was not challenged, and rightly, as they do not militate, either, against the concept of democracy or the method of electing or removing the representatives. The recall of an elected representative therefore, so long 9 CWP No.7392 of 2011 it is in accordance with law cannot be assailed on abstract notions of democracy. xx xx xx xx xx 6. Another offshoot of the same submission was that when removal was by a smaller body the legislature in 1949 provided a safeguard that a Chairman elected by people removed by vote of no-confidence if re-elected could not be removed again by a vote of no-confidence. According to the learned counsel in absence of such safeguard the provision in Section 47-A, as it stands now, becomes arbitrary and in absence of clear language it should be held inapplicable to President elected by the electorate. The approach does not appear to be sound. Legislature’s power to enact such provision is derived from Entry 5 of List II of VII Schedule which is couched in very wide terms. In absence of any challenge of legislative competence, the omission of the proviso to sub-section (5) of (sic of Section 47-A, as introduced by) Act 7 of 1949, by amendment since 1955 can neither be characterised as irrational nor arbitrary. Moreover whether a President should be elected by the people directly or by the Board was for the legislature to decide. These are matters of policy which cannot be examined by court. Legislature being the best judge of the needs of the people it is for the legislature to decide which system of electing representatives to the elective bodies and in what manner they should be removed would be best suitable for governance of the State. So long the policy is not vitiated by any mala fide or extraneous consideration the courts have neither jurisdiction nor are adequately furnished with material to adjudicate upon its validity or correctness.” In Bhanumati, it was observed:- 10 CWP No.7392 of 2011 “48. The appellants have not challenged U.P. Act 20 of 1998 by which Section 15 of the 1961 Act was continued in amended version. 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. xx xx xx xx xx 52. As noted above, the provision of no-confidence was a pre-Seventy-third Amendment statutory provision and that was continued even after the Seventy-third Amendment in keeping with mandate of Article 243-N. This 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 1961 provides a 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 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’ were substituted by words ‘one year’ by U.P. Act 20 of 1990. In the year 1998 U.P. Act 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 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’.” 11 CWP No.7392 of 2011 xx xx xx xx xx 57. 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. 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 continues with a newly-elected Chairperson. Therefore, there is no institutional setback or impediment to the continuity or stability of the Panchayati Raj institutions. 58. 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 Seventy-third Constitution Amendment and has been continued even thereafter. Similar provisions are there in different States in India. xx xx xx xx xx 66. 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. Such a 12 CWP No.7392 of 2011 statutory provision cannot be called either unreasonable or ultra vires Part IX of the Constitution. 67. 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. xx xx xx xx xx 86. Reliance was also placed on the Constitution Bench judgment of this Court in State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat( 2005)8SCC 534. Lahoti, C.J. speaking for the Bench laid down in SCC p. 562, para 39 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 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 recognise 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.” 12. It is clear that under the scheme of the Constitution, panchayats are required to be constituted and its members are to be directly elected. The election of Chair person is left by the Constitution to the State legislature. 13 CWP No.7392 of 2011 A provision for No Confidence Motion has been held to be valid and within the legislative competence. There is, however, no provision in the Constitution compelling the State Legislature to incorporate a provision for No Confidence Motion. A legislation can be struck down by the Court only if the same is violative of any constitutional provision either on account of lack of legislative competence under Articles 245 or on account of violation of fundamental rights or otherwise. No doubt, the scope of Article 14 has been expanded to cover any arbitrary action – administrative or legislative, there is a presumption of validity of a legislation and also that the legislature correctly understands the needs of the people. If a choice of policy is available, the legislature may make such choice in absence of compulsion of incorporating a provision. Mere fact that a provision for No Confidence Motion may be valid, does not imply that absence of such a provision or deletion of an existent provision for No Confidence Motion would be beyond the legislative competence. Right of removing a Sarpanch by passing a No Confidence Motion cannot be recognized as fundamental right under Article 14 in view of