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Messages of Solidarity
Dear Friends, Thank you very much for your solidarity with the protest against the recently proposed amendment to the Panchayat Raj Act. Many of you have sent in written endorsements to our letter. They have been reached to our Governor. In addition to these, a large number of individuals and institutions have also joined forces with all of us. As requested by Sri. T. N. Chaturvediji, a petition has been submitted to him today for his consideration. This petition points out the constitutional violations of this proposed amendment. The members of gram Panchayats are sending out letters and telegrams to the Governor, requesting him to refuse to give his assent to the proposed amendment. Please do keep us posed about the initiatives you and your organisations may take in this regard. You have already received our updates regarding our meeting with the Honourable Governor and the news related to massive protest rally that took place in Kundapur Taluk. A similar rally is being planned in Bangalore in the near future. We will send you more information regarding that as soon as the plans firm up in consultation with members of gram Panchayats from different parts of Karnataka. Please do join us in this programme. With best wishes, Kavita Ratna
Messages of endorsement to the letter we submitted to the Honourable Governor, April 2007 I fully endorse the position taken by the CWC and the contents of the letter to the Governor on the subject matter. It is not only unconstitutional but also a great insult for the representatives elected by the people in a democratic institution at the grassroots. We need to understand that people are sovereign .The mandate given to Panchayats by the people should be respected. I respectfully request honourable Governor of Karnataka to reject the proposed amendment. In solidarity, Niranjanaradhya Niranjanaradhya.V.P Senior Research Officer Centre for Child and the Law National Law School of India University Nagarbhavi,Bangalore 560072 ---------------------------------------------------------------------------------------------------- We will also send letters to governor as such a measure defeats the very purpose of democratization at the grassroots.
Indumathi Rao --------------------------------------------------------------------------------------------------------------------- I am with you in this issue. Dr. U. R. Ananthamurthy Gyanapita Awardee --------------------------------------------------------------------------------------------------------------------- We would be most glad to assist you in whatever way we can, on this Panchayat Raj Amendment. We would like a copy of the Amendment and also your critique of it, so that we could devote our undivided attention to it. Rajiv Dhawan Advocate, Supreme Court of India ---------------------------------------------------------------------------------------------------------------------
I fully endorse this letter to the Governor because Adrian Saldanha Development Activist ---------------------------------------------------------------------------------------------------------------------
Thank you for your mail. Issue is interesting and the need
C. Narasimhamurthy I endorse it. Anita Mathew,
Goa.
We endorse this letter. Rosemary Viswanath, Chief Functionary, Child & Tourism Programme
EQUATIONS --------------------------------------------------------------------------------------------------------------------- Re: Karnataka Panchayat Amendment Bill 2007 Dear Nandana, I enclose my note for the Governor Regards Rajeev Dhavan
Re: Karnataka Panchayat Amendment Bill 2007 I. Preliminary 1.1 This is an opinion to support the plea that the Governor should not sign the Karnataka Panchayat Raj (Amendment) Bill 2007; and to submit that it will be well within the powers of the governor to return the Bill for reconsideration or reserve it for the President. 1.2 The Karnataka Panchayat Raj (Amendment) Bill 2007 sidelines the Grama Panchayats and the Grama Sabhas entirely in decision-making on rural development, and necessary fund-allocation. It vests in MLAs the powers to override the decisions of local self-governing bodies. It completely undermines the constitutional mechanism of Rural Local Self-Governance enshrined in Part IXA of the Constitution of India. The 2007 Amendment was hurried passed in both houses of the Karnataka Legislature on 21st April 2007. The same is, at present, lying with the Governor, T N Chaturvedi. 1.3 In order to place the case before the Governor, two aspects relating to the present controversy come to light:
1.4 The aforementioned issues are considered below. II. Governor’s Power vis-à-vis a Bill passed by the Legislature: 2.1 A Bill passed by the legislature should normally be assented to by the Governor. However, the governor has been given special powers to reserve legislation for the President if it was necessary to do so to protect the working of the Constitution. A special area of concern was to ensure the smooth working of the federal system. The Constitution itself took the view that certain federal questions are best decided before the legislation comes into effect- especially in those areas where both Parliament and the State legislatures could legislate (See Article 254 and Kaiser-i-Hind Pvt. Ltd. v. National Textile Corporation (2000) 8 SCC 182. State legislation restricting trade and commerce for public interest reason needed the prior approval of the President (See Article 304- see also generally Article 288(2), 360(4)(a) as well as article 254(2( and 304(b)). We have already seen that the Constitution permits the Governor to withhold assent on a once only basis and may generally also reserve a bill for Presidential approval (Article 200). In turn, the President may withhold assent on a once only basis and may generally also reserve a bill for Presidential approval (Article 200). In turn, the President may withhold or grant assent- suggesting changes in money bills within a time frame (Article 201). The Governor must reserve State Bills for Presidential assent where the Bill undermines the power of the High Court. Thus, the Governor has both an important role and a considerable discretion in respect of Bills passed by the State Legislature. 2.2 The Governor’s discretion in these matters is wide and has to be exercised wisely. While deprecating time delays, the Sarkaria Commission’s Report on Centre-State Relations (1988) assessed the situation as follows: “Discretionary power for reservation under Article 200 may be exercised only in rare case. 5.6.08 Unconstitutionality of a Bill may arise on various grounds. The Bill may ex-facie relate to a matter in List I and not in List II or List III and, as such, may be beyond the legislative competence of the State Legislature. The provisions of the Bill may clearly violate Fundamental Rights or transgress other constitutional limitations. The provisions of the Bill may manifestly derogate form the scheme and framework of the Constitution so as to endanger the sovereignty, unity or integrity of the nation. 5.6.09 In all cases of patent unconstitutionality the Governor may- in the exercise of his discretion reserve it for the consideration of the President. Save in such exceptional cases, the governor must in the discharge of his functions under Article 200, abide by the advice of his Ministers. He should not act contrary to their advice merely because he personally does not like the policy embodied in the Bill.” 2.3 Noting the views of the Administrative Reforms Commission’s Study Team’s of 1969, the Sarkaria Commission approvingly said: “The Administrative Reforms Commission (Study Team) observed that, if the Provisions of Article 200a re given a very wide interpretation, it would lead to a large number of bills being reserved for the consideration of the President, contrary to the federal spirit of the Constitution. They also pointed out that this Article must be interpreted as enabling Presidential intervention only in special circumstances, such as those in which there is a clear violation of fundamental rights or a patent unconstitutionality on some other ground or where the legitimate interests of another State or its people are affected. It further observed that this article also provides an opportunity for Presidential intervention in the event of a clash with a union law. 5.6.12 We are in the agreement with the above observations. These observations are applicable, as far as may be, to the consideration by the President (i.e. the Union Executive) of the Bills reserved by the Governor in the exercise of his discretion under Article 200.” 2.4 The Sarkaria Report concluded: “5.6.13 We are therefore of the view that: i. Normally, in the discharge of the functions under Article 200, the Governor must abide by the advice of his Council of Ministers. However, in the rare and exceptional cases, he may act in the exercise of his discretion, where he is of opinion that the provisions of the Bill are patently unconstitutional, such as, where the subject-matter of the Bill is ex-facie beyond the legislative competence of the State Legislature, or where its provisions manifestly derogate from the scheme and framework of the Constitution so as to endanger the sovereignty, unity and integrity of the nation; or clearly violate Fundamental Rights or transgress other constitutional limitations and provisions. ii. In dealing with a State Bill presented to him under Article 200, the Governor should not act contrary to the advice of his Council of Ministers merely because, personally, he does not like the policy embodied in the Bill. 2.5 There are no specific constitutional guidelines for the exercise of this power other than the mandatory requirement under the Second Proviso to Article 200 that the Governor shall reserve a Bill which derogates from the powers of the High Courts. The Article reposes in the Governor an independent power, which is not subject to judicial scrutiny. Thus in Hoescht Pharamaceuticals, (1983)4 SCC 45, at pr. 86, the Supreme Court states that: “In such a case, it is for the Governor to exercise his discretion and to decide whether he should assent to the Bill or should reserve it for consideration of the President to avoid any future complication. Even if it ultimately turns out that there was no necessity for the Governor to have reserved a Bill for the consideration of the President, the Act so passed cannot be held to be unconstitutional on the ground of want of proper assent. The aspect of the matter, as the law, as the law now stands, is not open to scrutiny by the courts.” 2.6 In the exercise of this power, the Governor thus has to be guided by the constitutional principles. Apart from safeguarding the federal structure, the Governor is also responsible for upholding constitutional principles. Apart from safeguarding the federal structure, the Governor is responsible for upholding constitutional principles. Thus, the Governor has to also examine the legislation for its possible impact on constitutional provisions including the violation of the basic structure. 2.7 The Governor has to respect the Bills passed by a democratic legislation. But the Constitution also counsels a wise discretion to assess issues of principle and read them with the imperatives of democracy of which minority protection is a part. The Governor’s power to reserve Bills for the President is not a veto power, but an exercise of caution and restraint in a federal set-up, which puts a premium of direct empowerment through self-governing institutions. III. The Karnataka Panchayat Amendment Bill 2007 3.1 The Bill of 2007, has to be considered in the context of (a) the 73rd and 74th Amendments to the Constitution as well as (b) the scheme of the Karnataka Panchayat Raj Act 1993 which implement the 73rd Amendment and 74th Amendments to the Constitution brought into place a multi-tier federalism with the twin objectives of (a) Democractic representation especially weighted in favour of women, SCs, STs and OBCs (Article 243C-243F) (b) direct empowerment so that real decisions were entreated to the Panchayats and, eventually, the grama sabhas.Articles 243G-I read with the 11th Schedule and A.243W-243ZC read with the 12th Schedule. These two aspects of democratic representation and direct empowerment were fundamental to the 73rd and 74th amendments. If either suffers diminution, the very basis of the fundamental constitutional initiative would be injured. 3.3 Pursuant to the objective of the Constitution, the Amendment in the Karnataka Panchayat Raj Act of 1993, made very substantial changes to empower the Panchayats as well as the Grama Sabha. The Grama Sabhas were to convene at least once every six months, with recommendation powers to identify beneficiaries of programmes [See Section 3 of the Act of 1993]. The Vishwanathan Working Group’s Report of 2002 gave the Grama Sabhas a key role in beneficiary selection and was translated into law in 2003. [See Section 3(3)(b) and Section 3A(3)(c) inserted by an Amendment Act in 2003]. 3.4 The Act of 2007 wholly undermines the process of beneficiary-selection and declares that in respect of housing and other programmes funded by the government, where a Grama Panchayat fails to perform its duties, beneficiary selections would be made by a Committee headed by an MLA which will select the beneficiaries, from the list prepared by the Grama Sabha. If such a list can be prepared, why should the selection be made by an MLA ‘s Committee? Clearly, the purpose is to profile the MLA in front of his vote bank. This bill was passed in a great hurry and passed in the Legislative Council by the casting vote of the Chairperson, who has always claimed to be a champion of decentralised democratisation. 3.5 This is a dangerous step backward which goes to the root of the Panchayat amendments to the Constitution. It is true that the 2007 amendments proceed on the basis and in the form of a default power, where duties are not discharged by the Panchayat. The correct proposal must be to enable the panchayat to perform its functions, not repose them in a Committee headed by the MLA. IF MLA’s can replace Panchayats as Sabhas, the very purpose of the Panchayat Amendments in the Constitution is defeated. But, yet, default powers can be dealt with in a variety of ways. The amendment hijacks the decision-making powers of the Panchayat. It is like creating a mini-emergency. The proper course is to ensure that the Panchayat is convened for this purpose. To bring in the MLA to act from a list prepared by the Panchayat, defeats the whole purpose of the Act and the Panchayat Amendments in the Constitution. 3.6 It has been suggested that in order to achieve this amendment, officers who opposed the amendment were transferred. The Legislative Council passed the Bill on a casting vote. The Select Committee process was not invoked. There was a hurried vote in the Assembly. These factors have to be considered while assessing the proposed Amendment. 3.7 The MLA will now nurture his vote bank to become the mini-rajah, disbursing largesse to his vote-bank. This is like creating a Minister of Favours in such Panchayat areas. IV. Governor’s Options 4.1. The Governor should take into account the following: i. The normal rule is that the forever must assent to Bills passed by the Legislature; ii. But of the same time, the Constitution does not envisage the Governor’s assignation to be mechanical in nature. It gives him the alternative power to (a) return the Bill for reconsideration of the State Legislature once on the basis, or (b) reserve it for the President who in turn may deny assent or return to the State Legislature for reconsideration (Articles 200-201). iii. The Constitution provides little guidance on how this power is to be exercised except that iv. Where there is a conflict between a provision in a State law and the Union’s laws in exercise of the concurrent powers, the Governor should reserve the State Bill [under Article 254(2) of the Constitution of India] v. But those provisions do not exhaust the Governor’s power. Nor is the fact that if a matter can be challenged in Court once the Bill becomes an Act, the Governor should not use his power to refuse assent and leave it to the Courts to determine the vires and reasonableness of the legislation. If such a narrow view is taken, the Governor’s power would be reduce to practically nil. vi. The President must consider whether the Bill will undermine the constitutional objectives, the federal system, fundamental rights or union programmes or legislations and implementation. In these circumstances, he must consider the public interest issues that objectively emerge from the politics of the situation. vii. Where the issue is one of constitutional importance, impacts will be on the Union’s powers and programmes or become a precedent for other States, the Governor must reserve the Bill for the President. viii. The Governors exercise of power is invulnerable from judicial scrutiny except in proven cases of mala fide. ix. In this case, the legislative has passed the legislation in a hurry with a casting vote in the Council. This by itself is not a reason to deny assent. But it is a consideration to be taken into account. The Panchayat Bill of 2007 seeks to make drastic changes to reduce panchayat powers and convert it into MLA power. The MLA will then become a Minister of Favours. This upsets the constitutional premium on Panchayats and Sabha empowerment. This is a serous issue which undermines the Constitution and will set a precedent for others. 4.2 The Governor should refer back the legislation to the Assembly and reserve the option of sending it to the President later. Rajeev Dhavan --------------------------------------------------------------------------------------------------------------------- We deeply share your concern in this matter and support the stand taken, which is not to take any steps that will undermine the democratic processes. We will similarly express our reservations about the steps taken by the government. You can count on us for support. With regards Suchithra Dr. Suchithra Vedanth State Programme Director Mahila Samakhya Karnataka ---------------------------------------------------------------------------------------------------------------------
Sri. T. N. Chaturvedi, Respected Sir, We read with deep concern that the Karnataka Legislature passed the Karnataka Panchayati Raj Amendment 2007 (April 13th 2007). This Amendment is a damagingly regressive move that undermines the powers, authority and mandate of the Gram Panchayats in Karnataka, a State that has been hailed as a 'trail blazer' in decentralisation and self-governance. It is a flagrant violation of the 73rd Constitutional Amendment and several legislations and orders that have been passed by the State - that mandate the actual transfer of powers and functions to the Panchayats; as it imposes conditionality on the powers of the Panchayats to identify beneficiaries and reassigns this role to an ‘officer of the Government’ or a ‘MLA Committee appointed by the Government’. We also believe that the Secretary Law, Government of Karnataka wrote a strong note against this Bill, stating that it was unconstitutional. We therefore request you Sir, to consider the unconstitutionality and serious demerits of this Bill and refuse your assent to it, or recommend this Bill for Presidential Assent. We trust that this amendment will not be allowed to become law so that the commitment we have made as a State and a Nation to devolve powers to the Panchayats continues to be respected. With respectful regards,
S.K.Rudra Administrator JCCD
--------------------------------------------------------------------------------------------------------------------- Sri. T. N. Chaturvedi, The Honourable Governor of Karnataka Bangalore Respected Sri. Chaturvedijee,
I would like to endorse the letter sent to you by the organisation Concerned for Working Children with regards to their deep concern regarding the Karnataka Panchayati Raj Amendment. This amendment goes against the principle of democracy for which your State and your country is increasingly respected.
I support the request of CWC for you Sir, to consider the unconstitutionality and serious demerits of this Bill and refuse your assent to it, or recommend this Bill for Presidential Assent. I trust that this amendment will not be allowed to become law so that the commitment we have made as a State and a Nation to devolve powers to the Panchayats continues to be respected. With respectful regards,
Claire O’Kane Uganda --------------------------------------------------------------------------------------------------------------------- I have sent this as well as the comment on the proposed amendment received yesterday to the NWMI and NWMB e-groups, requesting efforts to ensure that this viewpoint is reflected in the media before it's too late. Warm regards, Ammu Joseph Media Activist ---------------------------------------------------------------------------------------------------------------------
Though am based at Madhya Pradesh, but still am sharing your concern
with civil society here and let's see if we too can help. ------------------------------------------------------------------------------------------------------------ Hello! This PRI amendment would be a disaster to the process of devolution of power. Asha Ramesh Gender Specialist & Dev Consultant ----------------------------------------------------------------------------------------------------------------- I agree with you on this threat of undermining the foundations of democracy. I am also equally concerned on this issue. Warm regards, Somashekar Hawaldar Project Strategic Advisor on an action-research project of IIM-Bangalore, Associate, `Gender and Health Equity project' GOK and UNICEF -------------------------------------------------------------------------------------------------------------------- Dear Kavita, CIVIC Bangalore has sent a letter to the Governor endorsing your stand. We will lend you our support in your future activities also. Please keep us informed. Regards, Kathyayini Chamaraj For CIVIC ------------------------------------------------------------------------------------------------------------ 2 May 2007 Shri T. N. Chaturvedi H. E. The Governor of Karnataka Raj Bhavan Bangalore KARNATAKA Your Excellency the Governor, It is with a sense of grief and deep anxiety that I seek Your Excellency’s intervention to stall the enactment of the recent amendment to the Panchayati Raj Act of Karnataka, which we consider as an outrage against democracy. Barely three and a half year’s ago, Karnataka took a big leap forward to enrich local democracy, when it amended the state’s panchayat Act to create a two-tier system of village assemblies – ward sabha and gram sabha – and to endow these assemblies with various functions and responsibilities including the exclusive power to select beneficiaries of individual-beneficiary oriented development schemes. The state, thus, had created an enabling condition for promoting participatory governance at the village level. It was a significant step toward achieving the goal of gram swaraj. The amendments passed in both houses of Karnataka legislature in the month of April have destroyed in one stroke what was achieved in respect of enriching participatory local democracy. It practically empowers the local MLA to select beneficiary list of housing schemes or programmes funded by the government over the head of gram sabha and gram panchayat. This amounts to replacing a democratic system by a non-democratic system for the purpose of decision-making on matters that affect the lives of the poor and marginalized people at the grassroots. Apart from the assault it makes on the constitutionally guaranteed local democratic institutions, the amendment is flawed in several other respects. For example, it stipulates that if the gram panchayat fails to discharge its duties in respect of housing schemes or programmes funded by government, then a committee headed by the local MLA will select the beneficiaries. But it is not clear who will decide that a gram panchayat has failed to discharge its duties? What procedure should be adopted before taking such a decision? Why the ‘housing scheme’ is specifically mentioned? Why selection of beneficiaries under this scheme is taken away? What is the implication of taking away all powers of gram sabha in respect of selection of all schemes of government? Why should a member of the legislative assembly be involved in executive functions? Even if he is given executive power, to whom should he remain accountable? All these remain answered. The amendment is so crude in nature that it cannot even hide its inconsistencies. The amendment was pushed through in the legislature with unseemly haste, despite protests by many MLAs. By passing the amendment, the legislature has transgressed the spirit of the Constitution in respect of institutionalization of local governments. Since the amendment also involves constitutional question, may I request Your Excellency to withhold assent and refer it to the President? With respectful regards, Yours sincerely, George Mathew --------------------------------------------------------------------------------------------------------------------
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