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2000 DIGILAW 580 (PAT)

Nand Kishore Singh v. Union Of India

2000-04-13

AFTAB ALAM, RAVI S.DHAVAN

body2000
Judgment Ravi S.Dhavan, J. 1. The State of Bihar today is without grass-root democracy. There is no local self government. This State can claim to be the cradle of civilisation in ancient India, and the land of rulers and kingdoms which boasted of the best in successful government. National leaders of stature from this State debated at the Constituent Assembly to frame the Constitution. But, today no one can boast that the pattern of democracy under the Constitution exists. It does not. 2. This case is about return to local self government. It was tost many years ago. A generation of experience in it has been wiped out. This is a bad foundation for the future of a republic. 3. The proceedings of the Council of Governor General of India even at the time, when the first world war had not begun, record a determined, dedicated and painstaking effort by the national leaders for self government. Local self government, on its furtherance, was the subject of debates. These are amply recorded in the archives, particularly in the proceedings of the Governor General of India, April 1913 to March 1914, Volume II. Mr. Surendra Nath Banerjee referred to Lord Morieys despatch and said : ".....but I will read an extract from Lord Morieys despatch. He says.....If Local Self-Government has so far been no marked success as a training ground, it is mainly for the reason that the Constitution of the local bodies departed from what was affirmed in the Resolution to be the true principle that the control shouid be exercised from without rather from within. The Government should revise and check the acts of local bodies, but not dictate them. I have no doubt that the Government of India today will affirm and actively shape their policy upon the principle authoritatively set forth by their predecessors in 1882... "...Here again, Sir, I rely upon the authority of Lord Morley, who invites the Government of India to take active measures for the organisation of these village union. He says: "I desire your Excellency in Council to consider the best way of carrying out a policy which would make the village the starting point of public life.1" 4. Mr. "...Here again, Sir, I rely upon the authority of Lord Morley, who invites the Government of India to take active measures for the organisation of these village union. He says: "I desire your Excellency in Council to consider the best way of carrying out a policy which would make the village the starting point of public life.1" 4. Mr. Surendra Nath Banerjee continued: "According to the same authority, the village is the fundamental, the indestructible unit of the Indian Social system, which has survived the overthrow of dynasties and the fall of empires. Sir, out (our?) village organisations carry the mind back to the dawn of human civilisation and the early beginning of local self-government. They are dead now, but the instinct is there, deep down in the national consciousness, and under the fostering care of a wise and beneficent government, such as we now have it may be revivified into a living flame. Our system of local self-government has been built up from the top. That, perhaps, was inevitable under the circumstances. But the time has now come when it should be strengthened from below and the foundations laid well and deep....." 5. On the next day, 19 March 1914 Mr.Madan Mohan Malviya, in the continuing debate stated; "......I have long advocated it, and I hope the day is not very far distant when Local Governments will have much more independence and will be able to larger extent than they can at present....." 6. On the progress of local self government the Governor General of India in Council was being intimated of the general policy of the imperial power as not being opposed to injecting local self government with independence to the local bodies through elected representatives. The report was authored by Lord Crews, Secretary of State to the Governor General in Council, otherwise Baron Harding of Penshurst. An extract of the report is relevant; "I agree that any attempt to exact uniformity in local administration, or to apply wholesale to existing conditions the genera! recommendations of the Commission, would be foredeemed to failure, and I fully concur in the view that local Governments must be left to decide how far the circumstances of their provinces admit of an advance towards the management by the people of their own local affairs" 7. Before the enactment of the Government of India Act, 1935 came the Simon Commission led by Rt. Before the enactment of the Government of India Act, 1935 came the Simon Commission led by Rt. Hon ble Sir John Simon, M.P., as Chairman of the Indian Statutory Commission. The other members of the Commission were Viscount Bumham, Lord Strathcon, Mr.E.Cadegan, M.P., Mr. Vernon Harts Horn, Colonel Lane Fox, M.P., and Major Clement Atlee. Sir John Simon gave two broadcasts beginning on 25 June 1930 over the British Boradcasting Corporation to explain the future of political India. Speaking on behalf of the Commission he said: Now let me turn to British India. When the British crown took over India from the East India Company a definite policy was laid down for the administration of India by Queen Victorias celeberated Proclamation of 1858. For present purposes that policy can be described as that of fitting Indians to administer their own country. As years passed many Indians felt that their educational qualifications fully entitled them to an increased share in the responsibilities of administration.... That policy was declared to be the increasing association of Indians in every branch of the administration, and the gradual development of self-governing institutions with a view to the progressive realisation of responsible Govenment in India as an integral part of the British Empire." 8. The history of local self government does not support the stand of the government of Bihar, so far as supersession of local bodies and making them function through the agency of civil servants without the elected representatives as a Corporation sole. The Constitution of India after its amendment with the inclusion of Part IX and Part IXA, the chapters on THE PANCHAYATS and THE MUNICIPALITIES does not suffer a situation of superseded local governments. Thus, parliamentary democracy, sans local government, neither blends with history nor represents progress of local self government, nor can it be sustained under the law of the Constitution. 9. The process of encouraging local self-government has been commented upon by Alan Gledhill in his book, The Republic of India. He writes: "Lord Ripon did not anticipate an immediate improvement in efficiency, but hoped that the Boards would be-come ther schools for Indian politicians. Every Municipality or Board was to have an elected majority and a non official President...... This policy could only succeed by faith that immediate regression would be succeeded by ultimate progress, and this faith was not forthcoming in official circles." (Emphasis) 10. Every Municipality or Board was to have an elected majority and a non official President...... This policy could only succeed by faith that immediate regression would be succeeded by ultimate progress, and this faith was not forthcoming in official circles." (Emphasis) 10. The Executive in Bihar Seems to share the Imperialists doubts about whether the people could be trusted with the power to govern themselves at the most basic level. 11. On supersession of local self government in Bihar, democracy at the grass roots, the State administration as in a totalitarian system claims to instill orderliness and efficiency. The anti-thesis of democracy has been impregnated into every sphere of the political system in this State. Those who have lost their political right, in innocence of their abject poverty and rampant unemployment are being persuaded that in such a change the future will improve their lot. In this mesmerisation of misplaced politics in a dangerous game of competing inequalities, that be reservation, the road-rolling flat of the institutions of local self-government has taken place. The end of Panchayats and Municipalities, alike. It is one such disturbing trend that Sir Stafford Cripps commented: ".....Once so deceived, the people become an easy prey to those who would deprive them of their liberty. One safeguard in such circumstances is for those who believe truly in democracy and liberty to combine together so to revise the form of their democractic machinery as to enable it to provide the people efficiently with their needs while at the same time preserving their liberty in those things that are essential. It is an urgent task to change the machinery of our democracy so as to make it at least the efficient equal of its totalitarian rivals, while at the same time preserving to our people the priceless heritage of their freedom which the others, have for the time being forfeited."7 12. And yet Article 171 of the Constitution in ample measure reflects on the continuing unbroken theme of local self-government. This is an aspect on which Granville Austin has also observed: "Nearly three weeks later, on 19 August, Ambedkar produced a new provisions, one that ultimately appeared as Article 171 of the Constitution. And yet Article 171 of the Constitution in ample measure reflects on the continuing unbroken theme of local self-government. This is an aspect on which Granville Austin has also observed: "Nearly three weeks later, on 19 August, Ambedkar produced a new provisions, one that ultimately appeared as Article 171 of the Constitution. One half of the seats in legislative council should be filled by direct election from special electorates in territorial constituencies, electorates, consisting of municipal, district and other local governing bodies and of University graduates and higher school teachers....." 13. Destruction of local self-governments, grass root democracy, perhaps may have laid the seeds of a self destroying exercise of the body politic in the State of Bihar. Nobody can hold a brief that the political governance is on the pattern of democracy, excellence of it is a farcry. This was not the vision of the Mahatma, who sounded a note of despair, if a day ever came that the people would lose the inner strength to sustain self government. On this, the Mahatma said: "Self government depends entirely upon our own inner strength, upon our ability to fight against heavy odds. Indeed self government which does not require, that continuous striving to attain it and to sustain it is not worth the name." 14. Democracies do not exist with legislatures at the capital only. This is paying fip service to democracy. Hard realities must be stated without reservation. This is not a matter which needs to be discussed in the whisper of drawing rooms. Bihar is a State where the people are not having the privilege and benefits of what is understood as parliamentary democracy. Democracy itself is receding and is being seen as a disappearing institution. Local Governments stand superseded, for whatever reason, by the administration of past and present State Governments. 15. Extracting the information compiled by the Supreme Court in the judgment re D.C.Wadhwa v. State of Bihar, AIR 1987 SC 579 the ordinances relating to local self government alone were promulgated 73 times. The last three decades have seen erosion, rusting and supression of focal self government. The chart below is an extract from the tables in the Supreme Court judgment. SI. The last three decades have seen erosion, rusting and supression of focal self government. The chart below is an extract from the tables in the Supreme Court judgment. SI. No. Name of Ordinance Date on which first Promulgated Life of the Ordinance How many times re-promulgated Total period of life of Ordinance 1 2 3 4 5 6 Year Months Days Bihar Panchayati Raj (Amending & Validating)Ordinance 1970 (Ordinance no.3 of 1970). 14.8.1970 11 4 18 35 about 12 years The Bihar Panchayati Raj (Amendment) Ordinance, 1971 (Ordinance No. 54 of 1971) 15.5.1971 10 7 17 10 years The Bihar Municipal (Third Amendment) Ordinance, 1971 (Ordinance No.57 of 1971) 20.5.1971 10 7 12 10 10 years The Patna Municipal Corporation Amendment) Ordinance, 1971 (Ordinance no.58 of 1971) 22.5.1971 10 7 10 10 years The Bihar Panchayati Raj (Validating)Ordinance 1973 (Ordinance No.5 of 1973) 22.2.1973 8 10 7 8 years The Panchayat Samitis and Zila Parishads (Amending and Validating) Ordinance 22.2.1973 8 10 7 8 years 1973 (Ordinance no.6 of 1973) The Bihar Gramdan (Amendment) Ordinance 1972 (Ordinance No. 12 of 1972) 26.2.1972 6 5 27 6 years The Chotanagpur and Santhal Parganas Autonomous Development Authority (Ffth Amendment) Ordinance 1975 (Ordinance no. 197 of 1975) 29.10.1974 5 2 3 6 years 16. Slowly, unknowingly, surreptitiously, the experience of grass root democracy was lost in Bihar. This is three decades of lost freedom, in a democracy by name but in bondage by the executive. For every superseded local self government institution the like of a Panchayat, a Town Area Committee, Zila Parishad, Municipality or City Corporation, a civil servant sits as an Administrator, as a sole Subedar over a souless corporation-sole. Such an administrator had chopped off the head of institutions of self-government by elected representatives. The Constitution has provided for local self government, it augurs ill in democracy if it functions at the State legislature alone. Democracy in Bihar is sick. 17. After 1992, when the Constitution was amended to include local self government as a constitutional mandate, the period when panchayats or Municipalities may not function cannot be more than when the legislature may not be in session: six months. When the Constitution mandated elections to return local self government, reserved seats from members to Mukhiya became an issue, given (sic giving) birth at the Secretariat in the State Capital. The matter came to the High Court. When the Constitution mandated elections to return local self government, reserved seats from members to Mukhiya became an issue, given (sic giving) birth at the Secretariat in the State Capital. The matter came to the High Court. A Bench of then Chief Justice the Hon ble D.P.Wadhwa and the Hon ble S.J. Ukhopadhyaya J., gave a decision that for elected posts it ought not to exceed fifty percent and for Chairpersons, the Mukhiya, it was held there would be no reservations, 1996 (1) PLJR 581 On the extent of reservations at fifty percent, the High Court based itself on a Supreme Court decision that the limit of reservation could at best be fifty percent. The decks for eletions to panchayats and Municipalities were now clear. The Executive did not accept the decision. Elections to return local self government were not held. The decision of the High Court was to be challenged, the executive decided, at the Supreme Court. 18. Any party to a cause in court may challenge the verdict. Thus, the State of Bihar had this right indeniably. But one way could be to hold the elections on the pattern of reservations indicated by the High Court and yet challenge the decision at the Supreme Court. Thereafter, should the appeal at the Supreme Court succeed, in between local government would at least be functional with elected representatives working the Panchayats and the Municipalities. The experience of local self government would not be lost. And, yet the next election would be held according to the decision of the Supreme Court. 19. Why has the election not been held ? 20. The Court was told that there is a stay order as an injunction from the Supreme Court. The Court sought the order from the State Counsel, but the order as was claimed could not be produced. Even the media had repeatedly reported, that the executive in administration claims that a stay order in favour of State of Bihar prevented the elections to Panchayats and Municipalities. Learned Additional Advocate General No.lll who was instructed to assert that an injunction of the Supreme Court prevents holding of elections, was asked to locate and show the record. 21. By this time Counsel for more than one petitioner in these public interest writ petitions questioned the withholding of elections in Panchayats and Municipalities. Learned Additional Advocate General No.lll who was instructed to assert that an injunction of the Supreme Court prevents holding of elections, was asked to locate and show the record. 21. By this time Counsel for more than one petitioner in these public interest writ petitions questioned the withholding of elections in Panchayats and Municipalities. It was contended that Bihar was losing several crores of central government grants in the absence of local self government. It was contened that the Government of India had indicatded to the State of Bihar that the grants for Panchayats and Municipalities would only be available when elected representatives return to these local body institutions. The Advocate General, Bihar was sought to make a statement on both circumstances: (i) the existence of an injunction by the Supreme Court directing not to hold an election and (ii) the denial of grants by the Government of India until elected representatives return to Panchayats and Municipalties. The Advocate General, Bihar, took an adjournment to be apprised of the facts from his government. 22. It is at this stage that the Court would like to place on record the fairness of the learned Advocate General in making his statement on the two points, He placed all the relevant records. 23. The learned Advocate General fairly stated that there was no stay order of the Supreme Court as an injunction preventing the holding of elections. 24. The learned Advocate General also stated that it is correct that as long as the elections to Panchayats and Municipalities are not held, the Government of India has indicated that grants to Panchayats and Municipalities, without elected representativs will not be available to the State of Bihar. 25. Not to hold elections for local bodies has cost the people of Bihar heavily and to their detriment. Posterity obliges the Court to notice the facts as lie on record. There is a very thin line now between democracy and anarchy. 26. On the record produced, matters which emerge for serious consideration are : (A) The mythical stay order (B) Who authorised the filing of the appeal at the Supreme Court and (C) The Price the people of Bihar have paid for losing grants from the Government of India. These may be considered one by one: 27. A mythical stay order : A Special Leave Petition was filed in the year 1996. These may be considered one by one: 27. A mythical stay order : A Special Leave Petition was filed in the year 1996. At the time when it was filed or during the year of its filing, if granted, no stay order has been placed before this Court. During mid 1997 several petitions relating to elections at Panchayats or Municipalities were before the Supreme Court. Amongst the Special Leave Petitions there was also one filed by the State of Bihar. The learned Advocate General says that the State of Bihar has not challenged the validity of 73rd and 74th amendment to the Constitution. The learned Advocate General says that the State of Bihar did request for an early hearing. On this the Supreme Court passed the following order: "As the validity of the 73rd and 74th amendment of the Constitution vis-a-vis Bihar Panchyat Raj Act, 1982, is required to be considered for the purpose of disposing these S.L.P. (c) Nos. 9724-28 and 9819-25/96 we feel that the matters should be decided by the Constitution Bench. The Registry therefore place these matters before the Hon ble the Chief Justice of India for constitution of the appropriate Bench for the disposal of these matters at an early date (in view of the fact that the election of Panchyat in Bihar State cannot be commenced until these matters are disposed of.)" 28. The bracket portion has been shown exactly as the copy of the Supreme Court order lies on government files. The meaning has been torn out of its context to convey to the people of Bihar and even the High Court that a stay order has been passed by the Supreme Court and, thus, elections cannot be held. The last sentence in the Supreme Court order reads as a whole. The sentence is: "The Registry therefore place these matters before the Hon ble the Chief Justice of India for constitution of the appropriate Bench for the disposal of these matters at an early date in view of the fact that the election of Panchayat in Bihar State cannot be commenced until these matters are disposed of." 29. The sentence is: "The Registry therefore place these matters before the Hon ble the Chief Justice of India for constitution of the appropriate Bench for the disposal of these matters at an early date in view of the fact that the election of Panchayat in Bihar State cannot be commenced until these matters are disposed of." 29. A reading of this last sentence in the order of the Supreme Court is clearly suggestive of the fact that the petition is recommended for early hearing by the Hon ble Bench and that the record should be placed before the Hon ble the Chief Jutice of India for constituting the appropriate Bench for hearing of this matter at an early date. The case was recommended for early hearing. But, in the Secretariat of the State of Bihar or whoever was incharge of the records, a bracket was put within the sentence so as to make two phrases and break up the sentence in two and making a sentence out of the bracketed portion so that it is read as an independent sentence. Thus, it was being interpreted, by tearing a phrase out of its context virtually by misinterpreting the Supreme Court order, and placing reliance on a tailord sentence declared as: "(In view of the fact that the election of panchayat in Bihar State cannot commence until these matters are disposed of.)" 30. This portion within the bracket was, thus, misconveyed to the people of state of Bihar that there is an injunction of the Supreme Court restraining the Government from holding the election. This was conveyed to the media also. On record there is no injunction. Nothing stopped the State of Bihar from holding an election and yet another election depending upon the resut of the Special Leave Petition after decision by the Supreme Court. The learned Advocate General acknowledges that there is no stay order. This explains the mystery of a non-existent injunction which was declared to exist but is conspicuous by its absence. This is chicanery by legal engineering. 31. The same record as was produced by the learned Advocate General reflects another disturbing situation. The learned Advocate General acknowledges that there is no stay order. This explains the mystery of a non-existent injunction which was declared to exist but is conspicuous by its absence. This is chicanery by legal engineering. 31. The same record as was produced by the learned Advocate General reflects another disturbing situation. In fact the learned Advocate General has drawn the attention of the Court that he had no occasion to see the record except when the Court required him to see it first and then produce it before the Court, This is about functional democracy as the Constitution ordains it denial of local self government is a serious matter, more serious than any matter of policy. The Constitution provides how the government in its functioning will transact its business. The provisions in the Constitution provide for the running of the government whether at the Centre or the State. This is the Allocation of Business and the Rules of Executive Business. 32. Not to hold elections to local self government bodies is a matter which is serious enough to engage the attention of the leader of the party which forms the government and the Council of Ministers. In the present case the Chief Minister and the Council as a cabinet. The subject is important enough to be placed before the Cabinet. As the issue arose out of a case pending at the High Court in which the Advocate General appeared and a State legislation had been declared as ultra vires, no one can deny that the Advocate General ought not to be left out of consultation whatever be the future course of action. The decision of the High Court in Re Krishna Kumar Mishra vs. State of Bihar (supra) gave a declaration to hold elections with reserved seats not exceeding 50 per cent and no reservation on the post of the Chairperson, the Mukhiya. The elections should have been held on the verdict of the High Court. Yet, the State of Bihar was and is at full liberty to challenge the verdict before the Supreme Court, provided the decision conformed to the Rules of Executive Business framed under the Constitution in the functioning of government as a standard administrative procedure. The Allocation and Rules of Executive Business are nothing but a civilised procedure to run a government by delegated legislation when prescribed, collective responsibility when required. The Allocation and Rules of Executive Business are nothing but a civilised procedure to run a government by delegated legislation when prescribed, collective responsibility when required. It is thus that all executive action may flow from the Head of the State, as State action would then be presumed to be in accordance with constitutional norms giving birth to healthy practices. 33. The Director Panchayat Raj Addressed a note on 23 March 1996 to the Secretary, Rural Development. This note records that at a metting the previous day, between the Secretary, Rural Development and the Director, Panchayat Raj, it has been decided that a Special Leave Petition will be filed at the Supreme Court. Lawyers had been selected and the necessary memorandum of appearance in favour of the lawyers had to be issued. The Secretary, Rural Development has also recorded a note on 23 March 1996 to the Legal Remembrancer and the Law Secretary observing that he would be very grateful for the advice. But on record there is no advice. The Secretary also records that the matter is urget, sensitive, and of public importance. Whereas the Secretary Rural Development, has addressed the note to the Legal Remembrancer and the Law Secretary, a Clerk in the office of the Law Department, diverted the file to the Additional Law Officer, also on 23 March 1996. Again on 23 March a Joint Secretary in the Law Ministry records a note for the Law Secretary that on the filing of the Special Leave Petition permission of the Minister, Rural Development, has not been taken and needs to be taken. The file is sent to the Directorate of Panchayat Raj. On 23 March the Director, Panchayat Raj, addresses a note to the Secretary, Rural Development. This note mentions that the Hon ble Minister is not available at the Secretariat and was reported to be out of the State Capital and that special efforts be made to obtain an endorsement from the Hon ble Minister on the file. The Minister was in Muzaffarpur. 34. On 23 March 1996 the Secretary, Rural Development, recorded that the file be placed before the Hon ble Minister. The file was placed before the Hon ble Minister, the next day, on his return from Muzaffarpur. The Hon ble Minister recorded as to why his permission had not been sought at his camp in Muzaffarpur itself. 34. On 23 March 1996 the Secretary, Rural Development, recorded that the file be placed before the Hon ble Minister. The file was placed before the Hon ble Minister, the next day, on his return from Muzaffarpur. The Hon ble Minister recorded as to why his permission had not been sought at his camp in Muzaffarpur itself. The Minister further added that the Department concerned had not processed the file in accordance with the Rules of Executive Business and, thus, this situation has occurred. The situation was the delay in filing the appeal and on the engagement of counsel. Perhaps the Hon ble Minister was not aware at his camping ground of what the constraints were in the Rules of Executive Business, framed under the Constitution. On 25 March 1996 the file returned to the Law Ministry, where a Section Officer in this ministry recorded a note that for the purpose of filing the appeal before the Supreme Court due permission be taken from the ministry concerned that is to say the Ministry of Rural Development as well as from the Chief Minister and for the engagement of counsel, expenses etc. sancton may be taken from the Finance Minister also. The file is marked to the Joint Secretary. 35. The Joint Secretary virtually reproduces the noting of the Section Officer on the special engagement of counsel and the payment of fees. On 25 March 1996 itself the Joint Secretary marks the file to the Law Secretary. On 25 March the Law Secretary records nothing as an advice or otherwise and simply makes an endorsement "Gramtn Vikas Vibhag" and put his signature under these three words and on the same day that is 25 March the file is sent to the Ministry of Rural Development. There the Director of Panchayat made a nothing on three points: The first that an appeal has to be filed and certain named counsel are to be engaged. The second, on discussion a counsel at Delhi had indicated that a certain senior advocate be engaged and on this proposal clearance from the Finance/Chief Minister be obtained and third, the endorsement of the minister concerned, that is Minister of Rural Development, should also be obtained. On 26 March the Secretary, Rural Development marks the file to the Minister, Rural Development. The minister endorses the suggestion. The file is sent to the Finance Secretary. On 26 March the Secretary, Rural Development marks the file to the Minister, Rural Development. The minister endorses the suggestion. The file is sent to the Finance Secretary. On 26 March the Finance Secretary endorses the file to the Chief Minister. On 26 March the Chief Minister endorses the file. That is all that the record contains of the exercise on the filing of the appeal before the Supreme Court, sans discussion at the Law Ministry supposedly manned by judicial officers on deputation, sans advice of the Advocate General who was not asked for advice and sans discussion at the Council of Ministers, where the matter was never taken though the Rules of Executive Business require it so. 36. The Court is not going into other aspects of the file because it only refers to engagement of counsel and their fees. This apsect is not relevant. What is relevant is that within 48 hours the only exercise which was done was to push the file between the Director, Panchayat Raj, Secretary, Rural Development, the Minister concerned and the Chief Minister. A hint had already been given on the file that the matter is sensitive, urgent and of public importance. The file movement through the corridors of the Secretariat shows no reference to the Rules of Executive Business in this otherwise serious and sensitive matter on the obligation of the government to provide local self government as mandated by the Constitution. On what should be done after the judgment of the High Court in this matter of public law and public importance, a constitutional norm otherwise prescribed was being breached. There was no escape from the Rules of Executive Business framed, under Article 166 of the Constitution of India. The Business of running a government has to be in accordance with the rules of conducting government business. This discussion is about running democracy within a democracy. The cracks in the system are now visible, and it is this that gradually the weakest link in the chain was broken. The link was local self government. A dialogue was lost between the Executive at the State and local self government. The Executive was tailoring the Panchayats and Municipalities. But such a sensitive matter needs a discussion within. Like any other State or the Centre the State of Bihar also is equipped with rules of business. The link was local self government. A dialogue was lost between the Executive at the State and local self government. The Executive was tailoring the Panchayats and Municipalities. But such a sensitive matter needs a discussion within. Like any other State or the Centre the State of Bihar also is equipped with rules of business. These rules of business, allocation of business or executive business, require the players to play in democracy but according to norms. The norms do not change, the players may. When the norms are abdicated, freedom is endangered because "power grabbing" becomes possible. 37. For the transaction of the business of the Government of the State and for allocation amongst Ministers, the State of Bihar also has these rules framed under Article 166(3) of the Constitution of India known as Rules of Executive Business, Bihar 1979. Part I is regarding Allocation and Disposal of Business. Part II relates to procedure of the Council of Ministers and Part III to Departmental Disposal of Business.Such of the subjects as are mentioned in the Third Schedule are to be brought before the Council. Council is referred to in the Rules of Executive Business as Council of Ministers. In the Third Schedule there are forty two items. Certain items need to be seen in the present context. For instance, Rule 2 is about the proposal for the appointment and removal of the Advocate General and for determining remuneration payable to him. rule 13 relates to the proposal for legislation including the issue of Ordinance under Article 213 of the Constitution. Rule 14 relates to the cases in which the attitude of the government to any resolution or a bill to be moved in the State Legislature is to be determined. Rule 19 refers to proposals involving any important change of policy or practice. Rule 20 is about proposed orders embodying important changes in the administrative system of the State. Rule 21 is about any proposal for the institution or withdrawal of prosecution against the advice tendered by the Law Department (Legal Remembrancer). Rule 40 is about proposals which adversely effect (sic affect ?) the operation of any policy laid down by the Central Government or any order made by the Central Government. 38. In the present case the High Court struck down a legislation of the State of Bihar and declared it as ultra vires. Rule 40 is about proposals which adversely effect (sic affect ?) the operation of any policy laid down by the Central Government or any order made by the Central Government. 38. In the present case the High Court struck down a legislation of the State of Bihar and declared it as ultra vires. The subject related to elections at Panchayats. The decision of the High Court logically affected the Municipalities. Both the Panchayats and the Municipalities are subjects under Part IX and Part IXA of the Constitution of India. The Advocate General had argued the case on behalf of the State Government. Not to hold an election would be a clear abnormality and against the mandate of the Constitution. Local self government, after Part IX and Part IXA had been inserted in the Constitution of India, became a basic feature of the Constitution. Elections to the Panchayats and the Municipalities which hitherto could be superseded by executive action now could not be avoided. Clearly, the decision was whether legislation was required to remedy the defect if the decision of the High Court was accepted or in the alternative (as the subject related to a policy decision to keep elections to local bodies in abeyance) challenge the verdict of the High Court, an avenue available to the State of Bihar. But as this would be an important matter of policy embodying important changes in the administrative system of the State and those affecting adversely, otherwise, policies laid by the Central Government on the mandate of the Constitution, certain procedural steps could not be avoided. These are the nuances in a parliamentary democracy. The first logical step was to seek advice of the Advocate General. This was not done. The next step was to refer the matter to the Council of Ministers. This was also not done. This was a subject which was one of policy, otherwise, sensitive, it concerned an important change in policy. 39. To go against the advice of the Government of India which required the holding of elections to local bodies, the State of Bihar would be affected to its detriment. The State of Bihar would be denied federal grants which could only be had if elected representatives represented local self government. Under the Rules of Executive Business, these were matters which required discussion, in the best traditions of parliamentary democracy, within the Councilthe Council of Ministers. The State of Bihar would be denied federal grants which could only be had if elected representatives represented local self government. Under the Rules of Executive Business, these were matters which required discussion, in the best traditions of parliamentary democracy, within the Councilthe Council of Ministers. These are the little subtle differences, which separate democracy from anarchy, which put efficiency and accountability in the working of democracy. The rules of government business, is the Constitution working through the executive. It was also there under the Government of India Act, 1935, relating to a province. It was Section 59. 40. The most satisfactory response came from the Advocate General, Bihar who so fairly acknowledged again and again that the matter was never seriously discussed as it ought to have been as provided and, it was never taken to the Council of Ministers. The High Court, of course, would not have been concerned on the context of the discussion if it had taken place. The Advocate General further acknowledged that this matter was never referred for advice of the Advocate General at any stage. 41. The Government of Bihar did not hold the election to the Panchayats and the Municipalities. The people of Bihar are paying a very heavy price for this. The Finance Commission, Government of India, allocated funds for the local bodies, that is to say, the Panchayats and the Municipalities. The fund as has been allocated for all the States of the nation is given in the report of the Tenth Finance Commission12. Central Government grants to States for Panchayats is at page 140, for Municipalities at page 141 and the combined grant for both at page 142. The grants are for the 1995-2000. The allocation to the State of Bihar is at item no.4 in all the tables. 42. The allocation made to the State of Bihar for Panchayats was 507.19 crores spread for each year as below : Annexure-X.1 (Para 10.16) Grants for Local Bodies: 73rd Amendment (Rs.crores) State 1995-96 1996-97 1997- 98. 1998-99 1999-2000 1995- 2000 1 2 3 4 5 6 7 Andhra Pradesh 0.00 87.75 87.75 87.75 87.75 351.00 Arunachal Pradesh 0.00 1.13 1.13 1.13 1.12 4.51 Assam 0.00 33.34 33.34 33.34 33.34 133.36 Bihar 0.00 126.80 126.80 126.79 126.80 507.19 43. Likewise the allocation made to the State of Bihar for the Municipalities was 67.09. 1998-99 1999-2000 1995- 2000 1 2 3 4 5 6 7 Andhra Pradesh 0.00 87.75 87.75 87.75 87.75 351.00 Arunachal Pradesh 0.00 1.13 1.13 1.13 1.12 4.51 Assam 0.00 33.34 33.34 33.34 33.34 133.36 Bihar 0.00 126.80 126.80 126.79 126.80 507.19 43. Likewise the allocation made to the State of Bihar for the Municipalities was 67.09. Annexure-X.2 (Para 10.18) Grants for Local Bodies : 74th Amendment Rs.in crore State 1995- 96. 1996-97 1997-98 1998- 99. 1999- 2000 1995- 2000 1 2 3 4 5 6 7 Andhra Pradesh 0.00 18.48 18.48 18.49 18.49 73.94 Arunachal Pradesh 0.00 0.03 0.03 0.03 0.03 0.12 Assam 0.00 3.55 3.55 3.55 3.55 14.20 Bihar 0.00 16.77 16.77 16.77 16.77 67.09 44. The State of Bihar had been allocated Rs. 574.28 crores as grants for local bodies. Annexure-X. 3 (Para 10.20) Grants for Local Bodies Rs.in crore State 1995-96 1996-97 1997-98 1998-99 1999-2000 1995-2000 1 2 3 4 5 6 7 Andhra Prdesh 0.00 106.23 106.23 106.24 106.24 424.94 Arunacha Pradesh 0.00 1.16 1.16 1.16 1,15 4.63 Assam 0.00 36.89 36.89 36.89 36.89 147.56 Bihar 0.00 143.57 143.57 143.57 143.57 574.28 45. The allocation of the grant was made initially for one year. Rs.126.80 crores for Panchayats and Rs.16.77 crore for Municipalities. A total of Rs.143.57. Thereafter, it was stopped by the Government of India under the advice of Finance Commission. Thus, barring the first year of allocation, the State of Bihar was denied these grants right up to the year 2000 and continues to be denied these grants. 46. Not only this, there was more to lose. The 11th Finance Commission recommended 50% increase in the grant to the States for the local bodied with 80% being earmarked for the rural local bodies and 20% to the urban local bodies. 47. The Eleventh Finance Commission in its interim report to the President of India recommended: "Grants to States for financing local bodies. 7....................................................................................... 11th Finance Commission has recommended a 50% increase in the grants earmarked for Rural and 20% for Urban Local Bodies. The Government has accepted the recommendation of the Commission. 48. The Government of India has accepted the recommendation of the 11th Finance Commission. On the recommendation of the Eleventh Finance Commission the Government of India has allocated a 50% increase in the grant to the States for local Bodies for the plan allocation period 2000-2005. The Government has accepted the recommendation of the Commission. 48. The Government of India has accepted the recommendation of the 11th Finance Commission. On the recommendation of the Eleventh Finance Commission the Government of India has allocated a 50% increase in the grant to the States for local Bodies for the plan allocation period 2000-2005. This means that whereas in the last plan allocation period the State of Bihar was getting a grant of Rs.574.28 crores, for the plan allocation period 2000-2005 the grant well come with an addition of Rs.284.14 crores. The plan allocation of the grant for the Local Bodies for the State of Bihar for the period 2000-2005 now stands at Rs.861.42 crores. 49. Now the question, arises why these grants continued to be denied to the State of Bihar ? This decision of the Government of India, Ministry of Finance, Department of Expenditure, Finance Commission Division, was conveyed to the State of Bihar by a letter dated 15th October, 1997. This letter is acoompanied by the "Revised Guidelines for utilisation of the grants from the Central Government to the State Governments for Local Bodies on the recommendation of the Tenth Finance Commission." Paragraph 5 of the Revised Guidelines announces: "The grant recommended by the Commission is part of a larger constitutional scheme of devolution of functions and responsibilities from the State of Local Bodies with mandatory elections so that they function as effective units of Local self Government. Hence, the grant may be given only in respect of elected local bodies wherever such elections are mandatory under the Constitution. Also, State should keep the Centre informed of the progress in devolution of functions and responsibilities to local bodies." 50. The revised guidelines by paragraph 12(b) also intimated the State of Bihar that : "the grants have been released only to elected local bodies wherever elections are mandatory." 51. The people of Bihar have been harmed in spirit, political will, political experience and material benefit in the form of grants for functional local self government. In this adventurism to keep the section in abeyance despite the fact that the. Constitution of India has mandated it, the loss is irreparable. But, the situation is remediable, but only by keeping the mandate of the Constitution of India. In this adventurism to keep the section in abeyance despite the fact that the. Constitution of India has mandated it, the loss is irreparable. But, the situation is remediable, but only by keeping the mandate of the Constitution of India. This leaves the Executive with no choice except to have democracy with local self government in true spirit of parliamentary democracy from the grass root level up to the State Legislature. 52. The ills of losing the experience of grass root democracy can be seen every day when one opens the morning newspaper. There is violence. There is parallel government in one part of the State. There are people who are not in power, yet wield power. They cannot be seen, but hold" peoples courts" as water will find its level somewhere, this is an anti-thesis to local self government, Panchayats, Municipalities. There is more violence to read about than in the declared terrorists affected areas. What ought to be taken care of by local self government, with elected representatives, comes to the High Court as Public Interest Litigations(PIL). In this pro bono publico theme at the Bar of the Patna High Court, even members of the legislative assembly, members of the legislative council and Hon ble Ministers of the Cabinet, seek relief to assert civic rights. They form the government from within as executive and outside they seek reliefs against the Government which according to them has failed to provide what they seek. These are matters of local government, of essential services not provided, of insanitation, of health and hygiene, of traffic congestion, of encroachment of roads and parks, of schools not provided and ghost schools, of rampant financial scams in every sphere of government activity, some of which are under investigation. The High Court seems to be a poor substitute for local self government, to run it had not been envisaged by the Constitution makers. But, the High Court is a platform when made available to listen to their complaints as local self government does not exist. 53. Apart from all these, the State of Bihar has already lost over 500 crores of rupees as grants for Panchayats and Municipalities. The allocation of 50% increased grants has also been lost. The period of 1995-2000 is over. 53. Apart from all these, the State of Bihar has already lost over 500 crores of rupees as grants for Panchayats and Municipalities. The allocation of 50% increased grants has also been lost. The period of 1995-2000 is over. Grants for the year 2000-2005 will also be lost if there are no elections to bodies which are meant to function as local self government. 54. The issue is not whether there is 100% reservation or 50% reservation. The price which the citizen of Bihar has paid is now on record. The High Court had recommended in 1995, Re. Krishna Kumar Mishra vs. State of Bihar (supra) on the basis of certain decisions of the Supreme Court, that the limit of reservation ought not to exceed 50% The State of Bihar moved the Supreme Court. The only practical recourse would have been to have elections on the basis of the decision of the High Court as a first step. Should the Supreme Court deliver a verdict other than what the High Court delivered an election may follow forthwith. In this, the experience and a continuing democracy would have been retained. To lose the experience is itself a very dangerous phenomenon. It has already led to a half way house to anarchy. To lose federal grants meant for the local bodies on the ground that such grant will not be available except to the elected representatives of the people cannot be termed as an incorrect decision of the Government of India. 55. The local self governments with elected representatives are institutions which are to be encouraged to function towards excellence as collective activity within the meaning of Article 51 A of the Constitution of India. To prevent the working of these institutions is an insult to the Constitution of India and denial of civic rights to the people of Bihar. 56. Learned Advocate General acknowledges that indeed Bihar has paid very dearly for not having election to local bodies. The learned Advocate General submits that he would ensure that something is done so that election to the Panchayats and the Municipalities are not delayed and held in keeping with the mandate of the Constitution. 57. The Court records the fairness of the learned Advocate General in presenting all the records before this Court. The learned Advocate General submits that he would ensure that something is done so that election to the Panchayats and the Municipalities are not delayed and held in keeping with the mandate of the Constitution. 57. The Court records the fairness of the learned Advocate General in presenting all the records before this Court. The Court hopes that this furtherance of running a government not in keeping with the Constitution of India will cease. Local government without elected representatives is an insult to the Constitution of India. 58. As desired by learned Advocate General, Bihar, the case is adjourned to 9 May 2000. Aftab Alam, J. 59 I agree.