Karnataka High Court
Prof. B.K. Chandrashekar And Another vs State Of Karnataka And Another on 17 March, 1999
Equivalent citations: AIR1999KANT461, ILR1999KAR2513, 1999(6)KARLJ394, AIR 1999 KARNATAKA 461, 1999 (3) KANTLD 249, (1999) ILR (KANT) 2513, (1999) 6 KANT LJ 394
Author: Ashok Bhan
Bench: Ashok Bhan
ORDER Ashok Bhan, J.
1. This order shall dispose of these two petitions filed as public interest litigation seeking the same relief though on different grounds to issue a writ of mandamus directing the Karnataka State Election Commission (for short, 'the Commission') to hold election to the Grama Panchayats in the State of Karnataka so that new elected body in each Panchayat is constituted well within time as mandated under Article 243-E of the Constitution of India irrespective of the Karnataka Panchayat Raj Amendment Ordinance No. 1 of 1999 (Ordinance) amending the Karnataka Panchayat Raj Act 1993. In W.P. No. 3826 of 1999 the vires of the ordinance have been challenged whereas in W.P. No. 3679 of 1999 the vires of the ordinance have not been challenged.
2. In W.P. No. 3679 of 1999 it has been averred that under Article 243-E the duration of the Panchayat is five years from the date appointed for its first meeting and its duration cannot be extended any further. So also an election to constitute a Panchayat should be completed before the expiry of the said five year term and the responsibility of conducting such elections vests with the State Election Commission. The term of existing Panchayats is to expire in the months of March/April 1999. Time required for conducting election would be a period of one month in the minimum and therefore, the process of election should have commenced by this time. Respondent 2 has so far not published the calender of event for holding the elections to the Panchayats and respondent 1 has attempted to delay the process of elections by issuing the ordinance; that respondents have failed to perform the constitutional duty and obligations cast upon them by adopting the strategy of promulgating an ordinance to amend certain provisions of the Karnataka Panchayat Raj Act, thereby to delay the elections which if held as mandated by the Constitution would not be in the interest of the ruling party in power; that respondent 1 cannot be permitted to flout the constitutional mandate to achieve its political end.
3. In W.P. No. 3826 of 1999 in addition to what has been stated in W.P. No. 3679 of 1999, it has been stated that even if the State has the power to amend Sections 4 and 5 of the Panchayat Raj Act, the real purpose of the ordinance being to postpone the elections due to be held to the Grama Panchayats nullifying the constitutional mandate enjoined under Article 243-E(3)(a) of the Constitution of India would be ultra vires the Constitution and therefore null and void. That ordinance having been given effect to from the date of notification dated 28th January, 1999 has created an anomalous position regarding the existing Grama Panchayats as they can neither be dissolved nor can be allowed to function beyond the period of five years. That respondent 2 has failed to discharge its constitutional duties. It has been prayed that the Press Note at Annexure-B issued by the Commission postponing the elections being ultra vires the provisions of the Constitution of India is liable to be quashed.
4. Respondent 1 in its statement of objections has denied that the ordinance in question nullifies the constitutional mandate of Article 243-E(3)(a). It is the submission of this respondent that ordinance which is legislation by the executive does not impinge upon any of the provisions of the Constitution of India. Allegation that ordinance is tainted with legal mala fides is without force. No intention could be attributed to the legislation by the legislature or by the executive. Contention that real purpose of the ordinance is different from the ostensible purpose is devoid of merit for the reason stated above. The intention and the motive of the legislative authority are not valid grounds of attack to the law made by the legislature or by the executive.
5. It is further submitted that the State Legislature under Article 246(3) read with Entry 5 of List II to Schedule VII of the Constitution of India alone is competent to make laws regarding the subjects mentioned in Entry 5. The power or competence of a legislature to make a law includes the power to amend it. The contention of the petitioners that the constitutional mandate of Article 243-E of the Constitution has been violated is devoid of merit. Contention of the petitioner that election to constitute a Panchayat should necessarily be completed before the expiry of the five year term is untenable. The aforesaid provision of the Constitution will have to be read in harmony with other Articles of the Constitution and not in isolation. The mandate of Article 243-E does not impinge on the plenary powers of the State Legislature to make laws in respect of a legislative subject within its exclusive domain. To accept the contention of the petitioners in this regard would mean that the State Legislature will have to either make a law or amend it at or before a given point of time. No such limits can be imposed upon the legislature.
6. That the Government after reviewing the functioning of the local bodies (Panchayats) for five years is of the view that the system of Panchayat that prevailed in the State from 1987 to 1993 was more effective. In the present system the number of Grama Panchayats in each taluk are too many, impeding proper supervision and co-ordination of their functions. The Grama Panchayats have not been mobilising their resources fully and effectively. The power to levy and collect taxes and rates has not been exercised properly. The constitutional obligations were not properly discharged by the present Grama Panchayats. The poor collection of revenue by the Grama Panchayats has resulted in huge arrears of electricity charges payable by them to Karnataka Electricity Board. At the end of June 1998, Rs. 74 crores was due to KEB from Grama Panchayats in the State. Out of 5,640 Grama Panchayats only 1,665 Panchayats had annual income from taxes and rates above Rs. 50,000/- and the remaining Panchayats had their incomes ranging from Rs. 10,000/- to Rs. 40,000/-. In the opinion of the Government one of the reasons for the fiscal distress of the Grama Panchayats is the smallness of their size. The Panchayats were not also in a position to pay the minimum expenditure for maintenance of office and technical staff. For the aforesaid reasons the Government was of the opinion that the system of larger Panchayats at the village level on the lines of the 1983 Act be introduced so that they are viable institutions of local self-Government. The Government was also of the opinion that Grama Panchayats could achieve the object for which they were constituted if they covered larger area with minimum population of 10,000 in plain and coastal areas and about 6,000 in hilly areas of Western Ghat regions with the upper limit fixed at 16,000. Earlier the Constituency of a Grama Panchayats member was fixed at 400 which is now increased to one thousand, In order to achieve the above objects, the provisions of Sections 4 and 5 had to be amended, which has been done by Karnataka Ordinance No. 1 1999. The other amendment relates to rotation of constituencies. The proviso to sub-section (4) of Section 5 of the Act states that seats reserved under sub-sections (2), (3) and (5) thereof shall be allotted by rotation to different constituencies in the Panchayat area. The system of rotation of reserved seats hampered the development of effective leadership at the grass-root level particularly amongst Scheduled Castes, Scheduled Tribes and women as those elected from the said category for one term may not get re-elected as the category of reservation of their constituencies was subject to compulsory rotation. To give effect to the aforesaid object of grooming leadership at the grass-root level, the Government decided to amend the aforesaid provision to do away with compulsory rotation of reserved constituencies at Grama Panchayat level. The Government was of the view that the proposed restructure of the existing Grama Panchayat had to be done as early as possible. If elections were to be held on the existing system, the exercise of restructuring would become infructuous for the reason that once elections are held, the present structure would continue for a further period of five years. The Government decided to amend the Act by changing the basis for delimitation. The population criteria having been changed, declaration of Panchayat area will have to be made afresh under the provisions of Section 4 of the Act. Till this process is completed, elections cannot be held.
7. Respondent 2 in its statement of objections has stated the details of steps which it had taken to hold the elections starting from March 1998 till it received a copy of the ordinance dated 29th of January, 1999. They shall be referred to in detail in the later part of the judgment. (Paragraphs 12 and 13). Respondent 2 is of the opinion that in view of the changed population criteria for declaring an area as a Panchayat area, the notification issued by it under Section 5(1) determining the number of seats and the notification issued by the Deputy Commissioner under Section 5(2), 5(3), 5(4) of the Act with regard to reservation of seats for SCs, STs, BCs, women and the notification issued by them under Section 5(5) of the Act regarding the delimitation of constituencies would cease to be in accordance with law as on that day. In view of this Election Commission cannot hold election on the basis of the notification before the expiry of the term of Grama Panchayats which starts from 4th March, 1999 onwards.
8. After attaining independence the people of India constituted themselves as a democratic republic and chose federal parliamentary form of Government. Under the constitution three tier form of governance is contemplated. Union Government with Parliament as the legislative body, State Government with State legislatures and the local self-Government. Distribution of powers is provided for in Chapter I of Part XI of the Constitution. Article 245, inter alia states that subject to the provisions of the Constitution, Parliament may make laws for the whole or any part of the territory of India and the legislature of the State may make laws for the whole or any part of the State. Article 246 provides, among other things, that subject to clauses (1) and (2) of the said Article, the legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in the State List in the Seventh Schedule. Clauses (1) and (2) of the said Article refer to the Parliament's exclusive powers to make laws with respect to any of the matters enumerated in the Union List and the power of the Parliament and the legislature of the State to make laws with respect to any of the matters enumerated in the Concurrent List. Article 248 gives the Parliament exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or the State List. On local self-Government no provision was made in the Constitution of India and it was left to the State Legislature to make laws under Entry 5 of the State List to enact laws regarding local self-Government. Entry 5 reads:
"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".
9. Article 40 of the Constitution which enshrines one of the Directive Principles of State Policy lays down that 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. Notwithstanding the directive in Article 40 not much attention was paid in establishing the Panchayat Raj Institutions. It was observed that in spite of the existence of Panchayat Raj Institutions for a long time, these institutions had not acquired the status and dignity of viable and responsive people's bodies due to a number of reasons including absence of regular elections, prolonged supersessions, insufficient representation of weaker sections like Scheduled Castes, Scheduled Tribes and women, inadequate devolution of powers and lack of financial resources. In the light of the experience in the last forty years and in view of the short-comings observed, the Parliament considered the imperative need to enshrine in the Constitution certain basic and essential features of Panchayat Raj Institutions to impart certainty, continuity and strength to them. Accordingly, by 73rd Amendment it was proposed to add Part IX relating to Panchayats in the Constitution to provide for among other things, Grama Sabha in a village or group of villages, constitution of Panchayats at village and other level or levels; direct elections to all seats in Panchayats at the village and intermediate level, if any, and to the offices of Chairpersons of such Panchayats at such levels; reservation of seats for the Scheduled Castes and Scheduled Tribes in proportion to their population for membership of Panchayats and office of Chairpersons in Panchayats at each level; reservations of not less than one-third of the seats for women; fixing tenure of 5 years for Panchayats and holding elections within a period of 6 months in the event of supersession of any Panchayat; disqualification for membership of Panchayats; devolution by the State Legislature of powers and responsibilities upon the Panchayats with respect to the preparation of plans for economic development and social justice and for the implementation of development schemes; sound finance of the Panchayats for securing authorisation from State Legislatures for grants-in-aid to the Panchayat from the Consolidated Fund of the State, as also assignment to, or appropriation by, the Panchayats of the revenues of designated taxes, duties, tolls and fees; setting up of a Finance Commission within one year of the proposed amendment and thereafter every 5 years to review the financial position of Panchayats; auditing of 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. State Governments were required to pass laws to bring their laws in conformity with Part IX of the Constitution inserted by the 73rd Amendment which came into force with effect from 24th April, 1993. State of Karnataka enacted Karnataka Panchayat Raj Act, 1993 (for short, 'the Act') in order to incorporate and give effect to the provisions of Part IX of the Constitution of India.
10. Article 243-B provides for formation of Panchayats in all the States in India and Article 243-E provides for the maximum period of 5 years for an elected Panchayat and that the next Panchayat shall be constituted before the expiry of period of 5 years of the outgoing Panchayat. It reads:
"243-E. Duration of Panchayats, etc.--(1) Every Panchayat, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer.
(2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Panchayat at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in clause (1).
(3) An election to constitute 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.
(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 could have continued under clause (1) had it not been so dissolved".
The control and conduct of elections to Panchayats is vested with the State Election Commission by virtue of provisions of Article 243-K which reads as follows:
"243-K. Elections of the Panchayats.--(1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor.
(2) Subject to the provisions of any law made by the Legislature of a State, the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may be rule determine:
Provided that the State Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of a High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment.
(3) The Governor of a State shall, when so requested by the State Election Commission, make available to the State Election Commission such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by clause (1).
(4) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Panchayats".
Section 4 of the Panchayat Raj Act empowers the Deputy Commissioner in the Revenue District in the State of Karnataka subject to general orders of the Government, if, in his opinion, it is expedient to declare any area comprising a village or group of villages having a population of not less than 5,000 and not more than 7,000 to be a Panchayat area, may, after previous publication, declare such area as a Panchayat area for the purposes of the Act and also specify its headquarters. There are three provisos to Section 4. Under the first proviso the Government is vested with the discretion of issuing an order that an area with a population of not less than 2,500 may be declared as a Panchayat area in such areas of the Districts named therein. Second proviso states irrespective of population wherever it is found necessary the Government, as a special case, may order that an area within a radius of 5 k.ms. (diameter of 10 k.ms.) may be declared as Panchayat area in such area specified therein. The third proviso vests with the Deputy Commissioner the power to declare any area comprising a village or group of villages having a population of either less than five thousand or more than 7,000 to be a Panchayat area.
11. The State Election Commission is given wide powers for conducting the election under provisions of Section 5 of the Panchayat Raj Act which reads:
"5. Constitution of Grama Panchayat.--(1) The Grama Panchayat shall consist of such number of elected members as may be notified from time to time by the (State Election Commission), at the rate of one member for every four hundred population or part thereof of the Panchayat area:
Provided that the determination of the number as aforesaid shall not affect the then composition of the Grama Panchayat until the expiry of the term of office of the elected members then in office.
(2) Seats shall be reserved in a Grama Panchayat,--
(a) for the Scheduled Castes; and
(b) for the Scheduled Tribes;
and the number of seats so reserved shall bear as nearly as may be, the same proportion to the total number of seats in the Grama Panchayat as the population of the Scheduled Castes in the Panchayat area or of the Scheduled Tribes in the Panchayat area bears to the total population of the Panchayat area.
(3) Such number of seats which shall, as nearly as may be one-third of the total number of seats of the Grama Panchayat shall be reserved for persons belonging to the Backward classes:
(Provided that out of the seats reserved under this sub-section, eighty per cent of the total number of such seats shall be reserved for the persons falling under category 'A' and the remaining twenty per cent of the seats shall be reserved for the persons falling under category 'B':
Provided further that if "no person falling under category 'A' is available, the seats reserved for that category shall also be filled by the persons falling under category 'B' and vice versa.
Explanation.--For the purpose of this sub-section, proviso to clause (b) of sub-section (2) of Section 44, sub-section (2) of Section 123, clause (b) of sub-section (2) of Section 138, sub-section (2) of Section 162 and clause (b) of sub-section (2) of Section 177, categories 'A' and 'B' shall mean categories 'A' and 'B' referred to in clause (2) of Section 2).
(4) Not less than one-third of the seats reserved in each category, for persons belonging to the Scheduled Castes, Scheduled Tribes and Backward Classes and of the non-reserved seats in the Grama Panchayats shall be reserved for women:
Provided that the seats reserved under sub-sections (2), (3) and (4) shall be allotted by rotation to different constituencies in the Panchayat area:
Provided further that nothing contained in this section shall be deemed to prevent a woman or a person belonging to the Scheduled Castes and Scheduled Tribes or Backward Classes for whom seats have been reserved in a Grama Panchayat from standing for election to any non-reserved seats in such Grama Panchayat.
(5) Subject to the provisions of sub-sections (2), (3) and (4), the (State Election Commission) shall, by notification, determine.--
(a) the constituencies into which the area within the jurisdiction of every Grama Panchayat shall be divided for the purpose of elections to every Grama Panchayat;
(b) the extent of each constituency;
(c) the number of seats, if any, reserved for the Scheduled Castes, the Scheduled Tribes, Backward Classes or women in each constituency; and
(d) the number of seats allotted to each constituency which shall be one or more.
(6) If for any reason the election to any Grama Panchayat does not result in the election of the required number of members as specified in sub-section (1), the (State Election Commission), shall, within one month from the date on which the names of the elected members are published by him under sub-section (8) arrange another election for the election of such number of members as will make up the required number.
(7) Notwithstanding anything contained in sub-sections (1) and (6), but subject to any general or special orders of the Government, where two-thirds of the total number of members of any Grama Panchayats have been elected, the Grama Panchayat shall be deemed to have been duly constituted under this Act.
(8) The (State Election Commission), shall publish, in the prescribed manner the names of members elected or deemed to have been duly elected".
12. In accordance with the above provisions a total number of 5,660 Grama Panchayats were constituted in the State of Karnataka in the year 1994. The first meeting of each such Panchayat was held in either March or April 1994. Consequently, the terms of these Panchayats would expire in either March or April 1999 before which fresh elections to constitute new Panchayats are to be held. Commission started preparation to hold election in March 1998. Commission issued notifications under Section 5(1) (between 30th of October, 1998 and 6th November, 1998) with regard to determination of number of seats for each Grama Panchayat. The Deputy Commissioners also issued notifications under Section 5(2), 5(3) and 5(4) of the Act with regard to reservation of seats for SCs, STs, BCs, and women in each Panchayat between 26th November, 1998 and 2nd January, 1999. Section 5(5) of the notification delimiting the constituencies in the Panchayat areas was issued between 10th December, 1998 to 14th of January, 1999.
13. Government of Karnataka addressed a Letter No. RDPR 125 GPS 98, dated 25th September, 1998 stating that the Government was thinking of making some structural changes to the Grama Panchayats and the Government would write to the Commission about the decision of the Government in this regard. Commission in its Letter No. SEC 40 EGP 98, dated 13th November, 1999 addressed to the Government stated that the election to the Grama Panchayats would be held in the third week of February 1999. All other preparations viz., getting the electoral rolls printed were made and completed by the end of second week of January 1999. Commission intimated the same to the Government in its letter No. SEC 40 EGP 98, dated 18th January, 1999 saying the preparations were complete in all respects and decided to announce the poll dates before 23rd January, 1999. Commission received a letter from the Government in No. GPS 285 GPS 99 (Part-1), dated 19th January, 1999 on 21st January, 1999 stating that the Government had decided to make structural changes and after the structural changes are made the Government would write to the Commission about holding of elections to new bodies, Commission decided to hold poll in two phases on 24th February, 1999 and 27th February, 1999 commencing the poll from 3rd February, 1999 as time required under Rule 12 of the Kar nataka Panchayat Raj (Conduct of Election) Rules, 1993, is 21 days from the date of issue of election notification by the Deputy Commissioners and the Commission had decided to announce the poll dates on 29-1-1999. The same was intimated to the Secretary, RDPR in its letter dated 28th January, 1999. A letter was also addressed to the Chief Secretary with a request to hold a meeting on 29th January, 1999 at 3-30 p.m. to discuss the matters relating to security arrangements to be made by the Director General of Police and other matters connected with elections like issue of circular about the enforcement of code of conduct etc. At this stage Commission received a letter from the Government on 29th January, 1999 enclosing a copy of the ordinance amending Sections 4 and 5 of the Act. The ordinance reads:
"2. Amendment of Section 4.--In Section 4 of the Karnataka Panchayat Raj Act, 1993 (Karnataka Act 14 of 1993) (hereinafter referred to as the 'principal Act'), in sub-section (1)--
(i) for the words 'not less than five thousand and not more than seven thousand' the words 'not less than ten thousand and not more than sixteen thousand' shall be substituted;
(ii) in the first proviso, for the words 'not less than two thousand five hundred' the words 'not less than six thousand' shall be substituted;
(iii) in the second proviso, for the words and brackets "a radius of five kilometres (diameter of ten kilometres)", the words and brackets "a radius of eight kilometres (diameter of sixteen kilometres)" shall be substituted;
(iv) in the third proviso, for the words 'either less than five thousand or more than seven thousand' the words 'either less than ten thousand or more than sixteen thousand' shall be substituted.
3. Amendment of Section 5.--In Section 5 of the principal Act--
(1) in sub-section (1), for the words 'every four hundred population1 the words 'every one thousand population' shall be substituted;
(2) in sub-section (4), the first provision shall be omitted".
14. A perusal of the ordinance shows that through executive legislation by virtue of the amendment to Section 4 the words 'not less than five thousand and not more than seven thousand' were replaced by 'not less than ten thousand and not more than sixteen thousand' to declare any area comprising any village or group of villages to be a Panchayat area. Instead of radius of 5 k.ms. (diameter of 10 k.ms.) the words 'a radius of eight kilometres (diameter of sixteen kilometres)' have been inserted in Section 4(iii) for comprising any Panchayat area. In Section 5 instead of the words 'every four hundred population for electing one member', the words 'every one thousand population for electing one member or a part thereof has been provided. On receipt of the ordinance Commission issued a Press Note saying that after examining the legal implications of the ordinance, it was not possible to hold the elections to the Grama Panchayats till the amendments brought about by the ordinances were given effect to for declaring the Panchayat area. It was of the opinion that the notifications issued under Section 5(1), (2), (4) and (5) would cease to be in accordance with law as from the date of issuance of ordinance. Operative portion of the Press Note reads:
"The effect of the amendment is that the population criterion for declaring an area as a Panchayat area is changed. This being so, the notification issued by the State Election Commission under Section 5(1) of the Act which determines the number of seats of a Grama Panchayat and the Notifications issued by the Deputy Commissioners under Section 5(2), 5(3), and 5(4) of the Act with regard to reservation of seats to SCs, STs, Backward Classes and women and the notifications issued by them under Section 5(5) of the Act regarding the delimitation of constituencies, would cease to be in accordance with law as it is today. In view of this, the State Election Commission cannot hold elections to the existing Grama Panchayats, on the basis of the above Notifications, before the expiry of their term, which starts from March 1999 onwards".
On the issuance of the Press Note by the election, the present writ petitions have been filed seeking mandamus to the Election Commission to hold the elections either ignoring the ordinance issued or declaring the same to be unconstitutional running counter to the express provisions contained in the Constitution of India.
15. Under Article 245 subject to the provisions of the Constitution the Parliament may make laws for the whole or any part of the territory of India and the State Legislature for whole or any part of the State with respect to matters enumerated in List I (Union List) and List II (State List) in the VII Schedule exclusively. Articles 245 and 246 read together makes it clear that subject to the provisions of the Constitution, the Parliament and the State Legislatures could make laws on any of the subjects enumerated in the Union and the State Lists. Entries in List I and List II of the VII Schedule are not sources of power but only heads or fields of legislation. Legislation in respect of any subject-matter falling within the entries will always be subject to the provisions of the Constitution. Under Entry 5 of List II the State Legislature has the exclusive legislative power to make laws regarding local self-Government or village administration. After the 73rd Amendment comprising in Articles 243 to 243-O, the State Legislatures can no longer claim any plenary power of legislation in respect of the matters enumerated in Entry 5 of List II and their exercise of power is subject to the provisions of Part IX of the Constitution which was introduced by the 73rd Amendment. In view of this the submission made by Mr. S. Vijayashankar, learned Advocate General that the State Legislature has the plenary power to legislate in respect of matters enumerated in Entry 5 of List II irrespective of the 73rd Amendment of the Constitution cannot be accepted. Under the Constitution of India as originally framed, in the absence of any constitutional provision governing the constitutional power to the State Legislature enjoining plenary powers of legislation in respect of constitution and functioning of Panchayat under Entry 5 of List II. By the 73rd Amendment to the Constitution, the State Legislatures were denuded of their power in respect of the matters regarding which a provision has been made in the Constitution thus creating a new source of power under Part IX of the Constitution of India. The option available to State Legislature to constitute institutions for local self-Government and define their compositions, duration have been taken away by the constitutional Amendment.
16. There is a constitutional compulsion to create and keep alive the Panchayats which are the institutions of the local self-governance. The power of the State Legislature is reduced and is to be so exercised as to subserve the constitutional mandates newly engrafted by the 73rd Amendment. The Panchayats which were creatures of State Legislatures have now attained the status of constitutional institutions and their composition etc., are governed by constitutional provisions which provide that the population ratio has to be uniform throughout the State. Seats can only be filled up by direct elections. Reservation for seats for SCs and STs basis being proportion of their population to the total population in the Panchayat area and not constituency-wise. 1/3rd reservation for women. 1/3rd of total seats to be filled by direct election to be reserved for women. Reservation of office of Chairperson to SCs and STs. 1/3rd of Chairpersons to be women. Under Article 243-E duration of Panchayat has been constitutionally limited to 5 years. Dissolution is permissible but not extension. Elections to new Panchayats have to be completed before the expiry of the duration of the outgoing Panchayat and in the case of dissolution before the expiry of six months from the date of its dissolution. Elections are completely in the hands of the Election Commission. State Election Commissioner is an independent constitutional functionary assured of security of tenure and the State Government has been enjoined upon to make available to the Commissioner, the required staff to discharge its constitutional functions. Article 243-K(4) also provides that State Law in relation to, or in connection with elections to the Panchayat is subject to the provisions of the Constitution.
17. No doubt the State Legislature has the power to amend Sections 4 and 5 of the Panchayat Raj Act. The object with which they are sought to be amended may be laudable and may result in more efficacious way of governance of the Panchayat. But if the same results in flouting the constitutional mandate to conduct the elections within the timeframe set out in the Constitution, then the same has to be ignored. Article 243-E mandates that every Panchayat unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer. The maximum period for which a Panchayat can function is five years. The use of word 'shall' and thereafter 'no longer' regarding continuation of an existing Panchayat under Article 243-E shows that the duration of the Panchayat is constitutionally limited to five years. Its dissolution may be permissible under given circumstances but there can be no extension of this period. Sub-article (3) of Article 243-E provides that an election to constitute the next a Panchayat shall be completed 'before the expiry of its duration specified in clause (1). Again the word used is 'shall'. Fresh elections to constitute the next Panchayat have therefore to be completed before the expiry of the duration of five years of the outgoing Panchayat. In case of dissolution under clause (b) of sub-article (3) before the expiry of a period of six months from the date of its dissolution. In view of the positive mandate of the Constitution it has to be held that the Panchayats can continue for five years unless dissolved earlier and elections to the new Panchayats have to be completed before the expiry of five years or before the expiry of six months from the date of its dissolution. Article 243-E of the Constitution is mandatory and not directory. In the context of subject-matter and the importance of the provision to the general object intended to be secured by the 73rd Amendment Article 243-E has to be held to be mandatory and not directory as suggested by the Advocate-General. The State Legislature would lack the legislative competence to enact any provision which seeks to nullify or modify the mandate of Article 243-E providing for the duration of Panchayat and holding of the next elections. Article 243-E brooks no defiance of its mandate and would brush aside any unconstitutional obstacles and hurdles put in its way.
18. Since the subject of term of Panchayat is taken care of specifically and exclusively by Article 243-E by necessary implication, the subject stands excluded from the field covered by Entry 5 of List II. It can neither expressly or incidentally trench upon the mandate of the Constitution for holding the elections within five years of the expiry of the term of the outgoing Panchayat.
19. In the statement of objects and reasons given while introducing 73rd Amendment it was stated that though the Panchayat 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 absence of regular elections and prolonged supersessions. 73rd Amendment sought to provide the constitutional guarantee to certain basic and essential features including regular elections to Panchayat Raj Institutions. Duration of five years was provided for Panchayat bodies and the elections to the Panchayats were mandatorily required to be held after five years. After completion of period of five years fresh bodies have to be constituted by holding elections. A part of the same reads:
"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 in the Constitution certain basic and essential features of Panchayat Raj Institutions to impart certainty, continuity and strength to them".
20. It was noticed that a number of Panchayat bodies were superseded and no elections were held for number of years thereafter. In order to obviate these threats and to put an end to such a practice it was stipulated that compulsory elections be held within six months of the supersession of the Panchayat bodies. This was done to take away the unrestrained and wide powers available to the executive and to the political parties to keep the Panchayat bodies in a state of suspense at their will and pleasure. The State Legislature cannot be permitted to flout the mandate of the Constitution of India to hold the elections within five years on the expiry of the term of the earlier Panchayat by introducing eleventh hour amendment to the law within their legislative competence. Timing of the issuance of the ordinance in the present case is not a mere coincidence. Without going into motives or intentions with which it was introduced we are of the opinion that such ordinances or amendments to the Act have to be ignored so that the mandate of the Constitution to hold the elections before the expiry of five years of the existing Panchayat or within six months of the dissolution of the Panchayat is not flouted. If the elections are not conducted within the time stipulated as aforesaid it would lead to a breach of constitutional provisions and its mandates. It would also lead to a situation whereby in all the Grama Panchayats in the State will not be having any elected body which would result in breakdown of the democratic set up envisaged by the Constitution. There certainty continuity and strength would be eroded.
21. Supreme Court of India in its order passed in W.P. (C) No. 719 of 1995, dated 12th August, 1997 attached as Annexure-C in W.P. No. 3679 of 1999 observed:
"Before we part, we may, however, indicate that 73rd Amendment of the Constitution was made with the stated object of the continuity of the Panchayat bodies regulating the tenure. Article 243-E of the Constitution envisages that the tenure of the Panchayat shall be five years from the date appointed for its first meeting and shall continue no longer than that. Even a Panchayat constituted upon premature dissolution of the earlier one, shall not continue beyond the tenure of five years. Article 243-B also provides that election of Panchayat shall be held before the expiry of the said tenure of five years or within six months of its dissolution as the case may be. In order to ensure holding of election of Panchayats, Article 243-E of the Constitution provides that laws relating to Panchayats in the States inconsistent with the 73rd Amendment shall continue in force only for a year from the commencement of Seventy-third Amendment unless the competent legislature has repealed or suitably amended such laws in the meantime. It is necessary to emphasize that various clauses of Article 243 are to be followed in letter and spirit. The concerned States cannot be permitted to withhold election of Panchayats except in cases of genuine supervening difficulties to hold such election e.g. unforeseen natural calamities in the State like flood, earthquake etc. or extremely urgent situation prevailing in the State for which election of the Panchayats cannot be held within the timeframe. It will be unfortunate if the concerned States remain insensitive to the constitutional mandate of holding election of Panchayats in time and by unjustified action, allows old bodies to continue in the office of the Panchayats. We hope and trust that the State Government will be alive and sensitive to the duties and responsibilities flowing from the mandates of the Constitution in holding Panchayat elections".
A perusal of this shows that according to the Supreme Court, elections to Panchayats have to be held before the expiry of the tenure of five years as provided under Article 243-E of the Constitution and the States cannot be permitted to withhold elections to Panchayats except in cases of genuine supervening difficulties to hold such elections, e.g., unforeseen natural calamities in the State like flood, earthquake etc., or extremely urgent situation prevailing in the State for which election of the Panchayats cannot be held within the timeframe. The emphasis by the Supreme Court was on unforeseen natural calamity or urgent situation prevailing in the State and not by human contrivance. No such situation prevails in the present case.
22. In the present case we find that the State Election Commission had taken all preliminary steps for holding the elections to the Grama Panchayats. The process of preparation to hold election was started in March 1998. Election Commission had held Division level meetings with Deputy Commissioners regarding rotation of seats under proviso to subsection (4) of Section 5 of the Act for the ensuing elections to be held in March 1999 and issued the notifications under Section 5(2), 5(3), 5(4). Commission had also issued notification under Section 5(5) delimiting the constituencies in each Panchayst. Fresh electoral rolls were also prepared. Commission had then addressed a letter to the Director General of Police on 7-12-1998 requesting him to issue instructions to Superintendents of Police and other officers to make security arrangements to hold peaceful poll to Grama Panchayats and that details will be furnished later about sensitive and hyper-sensitive polling stations and the Commission had also obtained list of Polling Stations and the same was sent to the Director General of Police on 12-1-1999 for necessary action in the matter. On 13-1-1999 Commission addressed a letter to the Government informing that the election to Grama Panchayats would be held in the third week of February 1999. All other preparations viz., getting electoral rolls printed were made and completed by the end of second week of January 1999. Government was informed of this development as well.
23. Commission had proposed to hold elections before the expiry of the term of the earlier Panchayat in two phases and when was due to issue the calendar of events the Government proposed to make structural changes regarding the declaration of Panchayat area, population criteria etc. Can it be said that process of election had begun and therefore the ordinance would have no effect on the election due in the month of March/April 1999? It is to be seen that when the Commission was about to issue calender of events, the ordinance was promulgated. Supreme Court of India in N.P. Ponnuswami v Returning Officer, Namakkal and Others, while considering as to when the 'elections' commence, held that necessarily elections do not commence with the issue of the calendar of events only. It would depend upon the situation of facts of each case. While assigning meaning to the word 'election' used in the context of Articles 324 and 329(b) of the Constitution it was held that the word 'election' can be and has been properly used with reference to the entire process which consists of several stages and embraces many steps, some of which may have an important bearing on the result of the process. The relevant extract of the observations of the Supreme Court reads: (From para 7):
"It seems to me that the word 'election' has been used in Part XV of the Constitution in the wide sense, that is to say, to connote the entire procedure to be gone through to return a candidate to the legislature. The use of the expression 'conduct of elections' in Article 324 specifically points to the wide meaning, and that meaning can also be read consistently into the other provisions which occur in Part XV including Article 329(b). That the word 'election' bears this wide meaning whenever we talk of elections in a democratic country, is borne out by the fact that in most of the books on the subject and in several cases dealing with the matter, one of the questions mooted is, when the election begins. The subject is dealt with quite concisely in Halsbury's Laws of England in the following passage see page 237 of Halsbury's Laws of England, Edn. 2, Vol. 12 under the heading 'Commencement of the election':
'Although the first formal step in every election is the issue of the writ, the election is considered for some purposes to begin at an earlier date. It is a question of fact in each case when an election begins in such a way as to make the parties concerned responsible for breaches of election law, the test being whether the contest is 'reasonably imminent'. Neither the issue of the writ nor the publication of the notice of election can be looked to as fixing the date when an election begins from this point of view, nor, again, does the nomination day afford any criterion. The election will usually begin at least earlier than the issue of the writ. The question when the election begins must be carefully distinguished from that as to when the conduct and management of an election may be said to begin. Again, the question as to when a particular person commences to be a candidate is a question to be considered in each case'.
The discussion in this passage makes it clear that the word 'election' can be and has been appropriately used with reference to the entire process which consists of several stages and embraces many steps, some of which may have an important bearing on the result of the process".
The Election Commission had taken all steps in connection with the preparation of polls and issue of notifications under Section 5(1) followed by the notifications by the Deputy Commissioner under Section 5(2), 5(3) and 5(4). Election Commission had also issued the notification under Section 5(5) delimiting the constituencies in each Panchayat. In the context of the facts of this case, it cannot be said that the process of election would have begun only with the issuance of calendar of events. It is apparent that the Election Commission had taken all preparatory steps and the process of election had already been put in motion. Once the process of election begins, the election cannot be postponed. Elections to the Panchayats under the circumstances could not be postponed. As observed earlier the timings of the issuance of the ordinance is not mere coincidental. Resulting effect of the ordinance is postponement of election to the Grama Panchayats in the State thereby flouting the mandate of the Constitution of India which cannot be countenanced or accepted under any circumstances. To that extent the ordinance has to be ignored.
24. Learned Advocate General relying upon Kannan Devan Hills Produce Company Limited v State of Kerala, argued that when the legislation is in substance one on a matter assigned to the Legislature, then it must be held to be valid in its entirety, even though it might incidentally tench on matters which are beyond its competence. In that case the State Legislature legislated on Entry 18 of List II and Entry 42 of List III. It had some effect on an industry controlled under Entry 52 List I. On this it was held that the power given to the State Legislature to legislate on Entry 18, List II and Entry 42 List III could not be denied on the ground that it has some effect on an industry controlled under Entry 52, List I. If a State Act, otherwise valid, has effect on a matter in List I it does not cease to be a legislation with respect to an entry in List II or List III. The provisions made in the State Acts were held to be incidental to the exercise of the powers which vested in the State Legislature. That was a case of constitutional validity of the legislative competence of the State Legislature vis-a-vis the powers of the Parliament to enact laws under Union list and in that context was observed by their Lordships if it incidentally trenches on the matters which are beyond its competence the same would not be invalid. In the present case the trenching is on a matter for which the Constitution itself has made a provision and the legislature has no competence to enact any law which directly or incidentally makes the provision of the Constitution nugatory. Under Article 243-E the maximum period given to elected Panchayat is five years and no longer and fresh elections for constituting the new Panchayats have to be held before the expiry of the period of five years. If an enactment by the State Legislature results in defeating the mandate of the Constitution the same has to be brushed aside and ignored.
25. In re Presidential Election, 1974, the Supreme Court while answering the presidential reference made to it under Article 143(1) on the question as to whether the election to the office of the President shall be held before the expiry of the term of the President notwithstanding the fact the legislative assembly of the State is dissolved, it was held that the term of the office of the President is fixed and election to fill up the vacancy caused by the expiration of the term of office of the President is to be held and completed before the expiration of the term; that Article 56(1)(c) and Article 62(1) are to be read together. The term of the office of the elected President is fixed. Similarly, elections to Grama Panchayats have to be completed before the expiration of the term of the outgoing Panchayat. To give effect to the mandates of the Constitution under Article 243-E, its intent and content, the elections to constitute new Panchayat which is a continuation process has to be held before the expiration of the term of the outgoing Panchayat.
26. Mr. S. Vijayashankar, Advocate General argued that provisions of the ordinance have to be applied to the election irrespective of the fact that it may result in postponement of election beyond five years, cannot be accepted. The mandate of the Constitution cannot be permitted to be flouted and as has been held by the Supreme Court in the case of Presidential Election, supra, in answer to the presidential reference that the term of office is fixed and for filling up the vacancy we have to give effect to the constitutional intent and content before the expiration of the term.
27. Under Article 243-K(4) the Legislature of a State can make laws subject to the provisions of the Constitution with respect to all matters relating to, or in connection with, elections to the Panchayats but if it purports to and in any way results in postponing the elections beyond the maximum period provided under the Constitution which it seems it would in the present case which is clear from the following averments made in the statement of objections:
"The ground urged by the writ petitioners that the duration of Grama Panchayat cannot be extended and that election to constitute a Panchayat should necessarily be completed before the expiry of the five year term is untenable", And "If the elections were to be held on the existing system, the exercise of restructuring would become infructuous for the reason that once elections are held, the present structure would continue for a further period of five years. The system as it was before the amendments had several deficiencies which had to be cured as early as possible. This is the reason why the Government decided to amend the Act by changing the basis for delimitation. As the population criteria is changed, declaration of Panchayat areas will have to be made afresh under the provisions of Section 4 of the Act. Till this process is completed, elections cannot be held".
Then it vitiates the mandate of the Constitution given under Article 243-E nullifying the election which are due and therefore it has to be ignored for the purpose of this election.
28. Advocate General also argued that in view of Article 37 Directive Principles of State Policy in Part IV of the Constitution are not enforceable by any Court. That 73rd Amendment which introduced and added Part IX to the Constitution has to be read as an extension of Article 40 and therefore not enforceable in a Court of law. The argument has to be rejected on the face of it being without any substance. The Directive Principles notwithstanding their great importance may not be enforceable in a Court of law but when a constitutional provision is made in the Constitution to give effect to a Directive Principle then that provision would certainly become enforceable through a Court of law and cannot be taken as a mere extension of the Directive Principle which it sought to achieve. Any law which is enacted contrary to the same would be liable to be struck down being ultra vires the Constitution. 73rd Amendment was introduced to achieve one of the Directive Principles of the State Policy and once it is enacted then it has to be given full effect to and cannot be taken as an extension of Directive Principle of State Policy and therefore not enforceable. Added provision would not become a part of Directive Principle under Part IV of the Constitution and hence not enforceable. It becomes enforceable in its own right being independent provision of the Constitution. Part DI of the Constitution is independent of Part IV of the Constitution and cannot be taken to be an extension of Article 40 and therefore falling under Part IV of the Constitution.
29. During the course of arguments we had asked Mr. Acharya, learned Counsel appearing for State Election Commission as to within how much time Election Commission would be able to hold elections, if the ordinance is given effect to. According to him it will take in all at least 7 months to hold the elections as fresh notifications under Section 5(1), (2) and (5) have to be issued. On the expiry of the period of five years, the present elected bodies would become functus offtcio. The Grama Panchayats will not be having any elected body which would result in breakdown of the democratic set up envisaged by the Constitution. In order to prevent such a situation it would be necessary to direct the respondents to hold elections to the Grama Panchayats in the State of Karnataka immediately. We are not holding that the State Legislature does not have the competence to amend Sections 4 and 5 of the Panchayat Raj Act. If it has the power to enact it has necessarily the power to amend those provisions as well. But as the amendment results in nullifying the mandate of the Constitution of India specially when the process of election had begun, the same is held to be not applicable to the present elections to Grama Panchayats due to be held in the Month of March/April 1999. If there is conflict between the mandatory provision of the Constitution and the right of the State Legislature to enact laws which falls within its legislative competence and which results in nullifying the mandate of the Constitution then in such a case provision of the Constitution would take precedence. If such a view is not taken then the mandate of the Constitution can be flouted with impugnity by the State Legislature on one pretext of the other. Constitution is Supreme and the laws by the legislature have to be enacted subject to the provisions of the Constitution of India and therefore subservient to it. Press Note at Annexure-B issued by the Election Commission attached in W.P. No. 3826 of 1999 is quashed.
30. For the reasons stated above we allow these writ petitions and direct the State Election Commission to continue with the process of election on the notification already issued under Sections 4(1) , 5(1), 5(2), 5(3), 5(4) and 5(5) of the Act. Election Commission is directed to hold the elections to the Grama Panchayats forthwith and in any case complete the same within six weeks from today. Petitions are accepted with costs. Respondent 1 shall be liable to pay costs which are assessed at Rs. 5,000/- in each petition.