SHYAM SUNDAR GUPTA Vs. UNION OF INDIA

JUDGEMENT

(1.) For the first time a Constitution Amendment Bill has been challenged in a High Court since the Constitution of India came into force on 26th January, 1950. The Constitution (Sixty-Fourth Amendment) Bill, 1989 (commonly known as the Panchayati Raj Bill) which has since been introduced in the Lok Sabha (the House of the People) has been challenged in a writ application. Apart from the Union of India; the Secretary to the Government of India, Ministry of Law and Justice; and State of West Bengal; the writ petitioner has also made the Speaker of 14 Lok Sabha, the Chairman of the Rajya Sabha, the Prime Minister of India in his official capacity, and Mr. Rajiv Gandhi, Prime Minister of India his personal capacity as the parties-respondents. The writ petitioner is a man of some public importance. He was the Mayor of Calcutta for a term and was also elected to the Lok Sabha once. Naturally, he is interested the political activities and constitutional affairs of the country.

(2.) The writ petitioner's case, in short, is that the Constitution (Sixty-Fourth Amendment) Bill, 1989 (hereinafter referred to as "the Bill") is an ordinary amendment of the Constitution but in fact is a manoeuvring for eroding into the foundation of the Constitution of India by legislating about the Panchayats which form an integral part of local government and includes village administration being Entry No.5 of List-II of the Seventh Schedule of the Constitution. The petitioner's case that the power of Parliament to amend the Constitution and procedure therefore is conferred Article 368 in Part-XX of the Constitution. The said amending power Parliament in exercise of its constituent power has come up for judicial review before the Hon'ble Supreme Court on several occasions. This Constitution Amendment as contained in the Bill seeks to interfere with basic structure as well as the basic features of the Constitution and is against the letter and spirit of Article 40 being the Directive Principles of S Policy as contained in Part-IV of the Constitution. The said Directive does not confer any competence on Parliament either to legislate in the field of village Panchayats or to exercise its constituent power to amend Constitution by adding thereto any provision relating to the organisation of village Panchayats. Article 246 of the Constitution clearly makes provision as to the subject matter of laws to be made by Parliament and Legislatures of the States. It is further contended that the different States in India have their own legislation covering the field of Panchayats, including establishment, organisation and functioning. The State of West Bengal has also a comprehensive legislation and statutory rules covering the Panchayat system which is functioning as full-fledged unit of local self-government, and the election of different bodies of the Panchayats are held periodically. It is further contended that the provisions of the said Constitution (Sixty-Fourth Amendment) Bill purport to establish legislative and executive supremacy of the Union over the States in the matter of the village Panchayats administration as a whole. The proposed Articles 243B, 243E, 243J and 243M of the Bill make the legislative power of the State Legislature subordinate to the provisions of this constitutional amendment thereby conferring upon the Central Government and/or the Central Agencies like the Controller & Auditor-General of India and the Election Commission to interfere with the' establishment, organisation and functioning of an exclusive State subject. The Directive Principles of State Policy enshrined in the Constitution do not anywhere confer any power upon the Union Government or Parliament to legislate in the forms of a constitutional amendment over an exclusive legislature field ear-marked for operation by the State Legislature alone. If such encouragements are allowed to be made by grabbing powers of the States by the Union then such amendments of the Constitution will completely destroy the essential basic features and structure of the Constitution of the country and ultimately the federal system will be turned into a unitary system of Government with the State Governments serving the Central Government's subordinate agencies instead of autonomous units. This process if not checked by the Rule of Law will imbalance the constitutional framework. It is further stated in the petition that the local self-government was not even included in the Concurrent List in the Seventh Schedule and this goes to demonstrate the intention of the Constitution-makers. The writ petition also referred to the Preamble of the Constitution containing the basic structure of the Constitution which cannot be amended in exercise of power conferred under Article 368 of the Constitution. It is further contended that List-I Union List, List-II State List and List-III Concurrent List in the Seventh Schedule with reference to the distribution of Legislative power as envisaged under Article 246 specify the different items which cannot otherwise be interferred with. It is also contended that the Bill and its numerous provisions are ultra vires the amending power of the Parliament under Article 368 as the Bill intends to completely wreck the established Constitution as envisaged by the Constitution-makers. The Bill not only interferes with an integral part of the Union and State Relationship but also seeks to destroy the Rule of Law thereby interfering with the political justice secured to the citizens of India in the Preamble to the Constitution. The writ petitioner prays for a Rule commanding the respondents not to proceed with the Constitution (Sixty-Fourth Amendment) Bill, 1989 and/or to enact the same and also for a declaration that the Bill is illegal unconstitutional and ultra vires the basic structure and features of the Constitution, a declaration that the constituent power of the Parliament cannot be exercised to amend the Constitution in derogation to the scheme of distribution of legislative power contained in Part-XI of the Constitution read with the Seventh Schedule. The writ petitioner also prayed for ad-interim order upon the respondents from proceeding with the Constitution (Sixty-Fourth Amendment) Bill, 1989 and for taking steps for enacting the same and from giving it effect, if enacted.

(3.) Mr. Chakraborty, the learned Counsel appearing for the petitioner, in a strenuous argument submitted that the Constitution (Sixty-Fourth Amendment) Bill, 1989 and its professed objects and reasons tend to violate the basic structure of the Constitution of India and certain basic features thereof i.e. federalism, distribution of legislative power between the Union and the States forming essential part of the relation between the Union and the States in the federal set-up, rule of law upon which the said basic structure in founded and the guarantee of political justice to the citizens of India contained in the Preamble to the Constitution. The impugned Bill is a proposed measure to bring about certain amendments to the Constitution not only in violation of its basic structure and features but also to over-step the limitation imposed on the constituent and/ or amending power under Article 368 of the Constitution by the Supreme Court in its three historic judgments in the cases of His Holiness Keshavananda Bharati Sripadagalvaru reported in AIR 1973 SC 1461; Minerva Mills Ltd. Vs. Union of India & Ors. reported in AIR 1980 SC 1789 and Wamon Rao & Ors. vs. Union of India & Ors. reported in A.I.R 1981 SC 371.