As per the quote by Thomas Hardy:
“The offhand decision of some commonplace mind high in office at a critical moment influences the course of events for a hundred years.”
And this quote would be apt to describe the pro-active intervention of the Judiciary in matters relating to the prerogative of self governance conferred upon the respective Panchayats by the Constitution of India.
At the outset, it would need to be clarified that even the Supreme Court of India in their order dated: 06.09.2023 in Petition for Special Leave to Appeal (Civil) No. 19887/2023 has not denied the right of fair hearing that is generally accorded to respondents in consonance with the principles of natural justice in relevance to the proceedings for removal of unauthorised constructions pending before the Gram Panchayat of Village Anjuna-Caisua.
The decision making capability of an institution that has been incepted for purposes of self government cannot be stifled by mere presuppositions of unauthorised activity that are formed by hierarchical institutions which would be the ultimate decision making body in the event the aggrieved respondent(s) were to invoke the writ jurisdiction under Article 226 of the Constitution of India for the purpose of seeking redress against the orders of demolition passed by the respective Panchayat.
Presumptuous attitudes in supervisory decision making need to be regulated for stemming out the potentiality of predetermination, especially when the institution is one that is entrusted with upholding the tenets of justice.
In a judgment of the Apex Court in the matter of Village Panchayat, Calangute v. Director of Panchayat (2012) 7 SCC 550, it was observed that:
“11. In 1992, the Constitution (Seventy-third Amendment) Act was introduced in Parliament and the existing Part IX was substituted. The background in which this amendment was introduced is evinced from the first two paragraphs of the Statement of Objects and Reasons, which are extracted below:
“1. Though the Panchayati 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 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.
2. 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. In the light of the experience in the last forty years and in view of the shortcomings which have been observed, it is considered that there is an imperative need to enshrine in the Constitution certain basic and essential features of Panchayati Raj institutions to impart certainty, continuity and strength to them.”…”
“12. The aforesaid amendment is a turning point in the history of local self-government. By this amendment panchayat became an “institution of self-governance”—
Article 243(d) and comprehensive provisions came to be incorporated for democratic decentralisation of governance on the Gandhian principle of participatory democracy. The Panchayati Raj institutions structured under the Seventy-third Amendment are meant to bring about sweeping changes in the governance at the grass-root level. By this amendment, Parliament introduced three-tier system of Panchayati Raj institutions at village, block and district levels.
Article 243-C provides for composition of a panchayat and filling up of the seats in a panchayat by direct election.
Article 243-D provides for reservation of seats and
Article 243-E provides for duration of panchayat.
Article 243-F enumerates the grounds of disqualification of membership of the panchayat and
Article 243-G prescribes the powers, authority and responsibilities of a panchayat…”
“17. Article 243(d) and Article 243-G which have bearing on the issue raised in these appeals read as under:
“243-Definitions.—In this Part unless the context otherwise requires—
(d) ‘panchayat’ means an institution (by whatever name called) of self-government constituted under Article 243-B, for the rural areas;
243-G Powers, authority and responsibilities of panchayats.—
Subject to the provisions of this Constitution, the legislature of a State may, by law, endow the panchayats with such powers and authority and may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon panchayats, at the appropriate level, subject to such conditions as may be specified therein, with respect to:
(a) the preparation of plans for economic development and social justice;
(b) the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule…”
“23. For achieving the objectives enshrined in Part IX of the Constitution, the State Legislatures have enacted laws and made provision for devolution of powers upon and assigned various functions listed in the Eleventh Schedule to the panchayats. The primary focus of the subjects enumerated in the Eleventh Schedule is on social and economic development of the rural parts of the country by conferring upon the panchayat the status of a constitutional body. Parliament has ensured that the panchayats would no longer perform the role of simply executing the programmes and policies evolved by the political executive of the State. By virtue of the provisions contained in Part IX, the panchayats have been empowered to formulate and implement their own programmes of economic development and social justice in tune with their status as the third tier of the Government which is mandated to represent the interests of the people living within its jurisdiction. The system of panchayats envisaged in this part aims at establishing strong and accountable systems of governance that will in turn ensure more equitable distribution of resources in a manner beneficial to all...”
Therefore, in honouring the “Theory of Separation of Powers” upon which the three wings i.e. the Legislature, Executive and Judiciary have been enshrined in the Constitution, the integrity of the Panchayats ought not to be undermined by the other pillars of power while keeping in view the self-governance rights of the people of rural areas of the state.
The writer is a Doctoral Researcher working under the Alliance of European Universities and has presented his research works at various Academic Conferences
