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K. Chandru, J.—In W.P.(MD). No. 6092 of 2008, the petitioner is the President of Thanjakoor Panchayat, Thirupachethi Post,
Manamadurai Taluk, Sivagangai District.
In this Writ Petition, the challenge is to the constitutional validity of Section 205 of The Tamil Nadu Panchayats Act, 1994. The petitioner seeks
for a direction that the said provision is unconstitutional and not legally valid.
The cause of action for filing such a writ petition arose when proceedings u/s 205 of The Tamil Nadu Panchayats Act setting out certain financial
irregularities against the President (writ petitioner) committed while implementing the National Rural Employment Guarantee Scheme. The
petitioner had submitted his explanation to the show cause memo and since the District Collector was not satisfied, the Tahsildar, Manamadurai
was directed to convene a meeting on 10.07.2008 to ascertain the views of the members of the Panchayat for taking further action on his
explanation. It is at this stage that the petitioner thought it fit to challenge the very provisions of Section 205 of the Tamil Nadu Panchayat Act,
1994 as being unconstitutional and hence no action can be taken against him under such provision.
In this writ petition (W.P. No: 6092 0f 2008), notice of motion was ordered on 14.07.2008. Pursuant to the said notice, a counter affidavit has
been filed by the first respondent on behalf of all the respondents dated 08.08.2008.
When this matter was pending, Writ Petition in W.P. No. 7970 of 2008 was filed by a president of another Village Panchayat i.e. Mookuperi
Panchayat in Tiruchendur Taluk at Thoothukudi District. In that case, the petitioner was proceeded by the District Collector, Thoothukudi District,
with an action u/s 205 of the Tamil Nadu Panchayat Act, 1994 setting out certain irregularities committed by him with reference to the formation of
cement roads, preparation of bills with reference to electrical works done by the Panchayat and also non-remitting of tax collected with the bank.
The petitioner sent his reply dated 25.01.2008, stating that he was innocent and for levelling such allegations, there is no basis. He has also
submitted a further reply dated 22.08.2008, before the District Collector, Thoothukudi. Before he could consider the explanation submitted by the
petitioner in terms of Section 205(2), the petitioner has filed the present writ petition challenging vires of the Section 205.
When this matter came up for admission, the earlier writ petition was tagged along and were heard together and a common order is being made.
Mr. T. Lajapathy Roy, learned Counsel for the petitioner submitted that the panchayat institutions were created and were given a constitutional
backing by the 73rd Amendment, which introduced Part IX of the Constitution. Article 243E of the Constitution provides for duration of the
Panchayats and Article 243F provides for disqualifications for membership in the Panchayat. In Article 243G of the Constitution, it is directed that
the legislature of the state in making laws was subject to the provisions of the Constitution and more particularly, as found in Part IX of the
Constitution. The powers and authority conferred on the Panchayat must make it function as institutions of self Government. Such law should
contain provisions for devolution of powers and responsibilities of Panchayat at appropriate level. It is with this Constitutional backing, the present
Tamil Nadu Panchayats Act, 1994 was enacted.
The Act provides for disqualification of a member contesting the panchayat elections including to the post of President. Apart from providing
such disqualification, there is no scope for providing any provision for removal of the President during his tenure.
The learned Counsel submitted that the provision of Section 205 of the Act is an anachronism as it militates against the democratic function of a
panchayat. The learned Counsel also placed reliance upon the judgment of the Supreme Court in Gujarat Pradesh Panchayat Parishad and Ors. v.
State of Gujarat and Ors. reported in 2007 7 SCC 718. The counsel placed heavy reliance upon the following passage found in para 24 of the
said judgment, which is as follows:
The argument that the view taken by the High Court has destroyed or considerably eroded constitutional set up in Part IX of the Constitution has
not impressed us. In our opinion, it cannot be said that interpretation of various provisions of the Constitution of the Act has disturbed, truncated or
adversely affected the status of Panchayat guaranteed by the Constitution. Part IX of the Constitution confers certain powers on local self-
government. It promises duration of five years, free and fair election, representation of Scheduled Castes and Scheduled Tribes in the
administration of institutions of local self-government, no interference by other organs of the State, including judiciary, etc. In our opinion, however,
the High Court was right in observing that a District Panchayat cannot arrogate to itself the status of a body as independent or autonomous as a
Province in a Federation. Part IX of the Constitution or Article 243-G makes no change in the essential feature of the Panchayat organisation. what
was sought to be done by the Seventy-third Amendment was that constitutional status to the local self-government was conferred to District
Panchayats, Taluka Panchayats and Village Panchayats. A State Legislature, in the light of constitutional provisions in Part IX, cannot do away
with these democratic bodies at the local level nor their normal tenure be curtailed otherwise than in accordance with law nor can the State
Government delay elections of these bodies.
The learned Counsel also submitted that after providing for disqualification, the question of removing a Panchayat President on grounds of mis-
conduct is neither contemplated in the Constitution nor can be permitted to be provided under a Panchayat Act. By doing so, it has brought an
element of discretion and arbitrariness with the authorities geopardising the peaceful functioning of a Panchayat.
The learned Counsel referred to Section 205(11), which may be usefully reproduced below:
Section 205(11) The Inspector may, after considering the views of the village panchayat in this regard, in his discretion either remove the president
from office by notification with effect from a date to be specified therein or drop further action.
The learned Counsel for the petitioner, after referring to the unbridled discretion given to the District Collector (Inspector of Panchayats) to
remove a President from office by a notification which violates the Democratic Election procedure. In that view of the matter, he prayed that the
said provision should be struck down as unconstitutional.
On behalf of the State, in the counter affidavit filed in W.P.(MD). No. 6092 of 2008, it is stated that there is no provision in the Constitution
barring the State Legislature from empowering an Executive Authority to conduct an enquiry against or removing a Panchayat President. It is also
submitted apart from being an elected leader of the Panchayat, the President is also declared as an executive authority of the panchayat dealing
with the accounts of the panchayat and also empowering him to execute the schemes of the panchayat. Therefore, the power conferred to the
panchayat president once by a valid election is concluded and he being the president of the panchayat as well as the executive authority of the
panchayat to carry out the works of the panchayat, involves many financial transactions, and a ''public servant'' under the provisions of Indian Penal
Code if any misconduct is committed by such an authority, the State Legislature is not powerless in providing a provision for his removal for
proved misconduct.
It is also stated that such a power conferred, on the Inspector of Panchayats is valid and it is referable to power conferred on the Tamil Nadu
State Legislature under Article 246 of the Constitution of India read with Schedule VII particularly item 5 of List II. Therefore, once the said State
Legislature is empowered to legislate, there can be no constitutional objection in making such a provision. In Part IX of the Constitution introduced
by 73rd amendment, there is no specific exclusion of any power vested on the State Legislature in enacting a law for the Panchayats.
The argument that the State Legislature only provides for disqualification, which power did not include a removal of an elected panchayat
president cannot be accepted. What has been stated under Article 243F of the Constitution of India is only a disqualification to be made expressly
by the State legislature which does not mean, there is no other method or avenue of removal of an elected panchayat president. In fact, Section
212 of the Tamil Nadu Panchayats Act itself provides for a motion of no confidence being brought by the members against a panchayat president.
In those cases, the panchayat president is simply removed by the will of the council members.
At least in the case, removal u/s 205 of the Panchayat Act, an hearing given to the president of the panchayat. If he is an accused of specific
misconducts and after calling for his explanation and perusing the connected materials, the District Collector has to form an opinion. He has to
convene a meeting of panchayat members to ascertain their views and thereafter to take a decision one way or other.
Therefore, the discretion provided u/s 205(11) of the Act is not arbitrary or without any limitations. u/s 205(2), if an Inspector of Panchayats
considers the explanation of a panchayat president is satisfactory, he can drop further action on the notice. It is only when an explanation is not
satisfactory, the matter is forwarded to a Tahsildar to convene a meeting of the panchayat council. At the first stage of show cause notice, he acts
as an authority to screen the materials and decides on further course of action. It is only during the second stage after ascertaining the views of the
members (which obviously he is not bound to accept) u/s 205(11) of the Act, in his discretion, he removes the president from the office by a
Notification. He can also drop further action.
After the second stage, there is a third stage. The decision of the Inspector of Panchayats has not been made final u/s 205(11) of the Act. The
Government has power u/s 212(12) to cancel any notification issued under Sub-section (11) and it has powers pending its decision to postpone
the date the notification. Therefore, there is a review by the State Government, which is an higher authority. It is a sufficient safeguard to check on
the discretion used by District Collectors. Further, there is also judicial review provided under Article 226 of the Constitution if an arbitrary
decision of the Inspector of panchayat was unjustly supported by the State Government.
In Workmen of Meenakshi Mills Ltd. and Others Vs. Meenakshi Mills Ltd. and Another, the Supreme Court dealt with the vires of Section
25-N of the Industrial Disputes Act, 1947 insofar as it granted the discretion to the State Government or its nominee in granting approval to an
application for retrenchment sought for by an industrial establishment. The Supreme Court upheld the provision. While doing so, it observed as
follows in paras 41, 49, 53 and 55:
Para 41: ...We have already dealt with the nature of the power that is exercised by the appropriate Government or the authority while refusing or
granting permission under Sub-section (2) and have found that the said power is not purely administrative in character but partakes of exercise of a
function which is judicial in nature. The exercise of the said power envisages passing of a speaking order on an objective consideration of relevant
facts after affording an opportunity to the concerned parties. Principles or guidelines are insisted on with a view to control the exercise of discretion
conferred by the statute. There is need for such principles or guidelines when the discretionary power is purely administrative in character to be
exercised on the subjective opinion of the authority. The same is, however, not true when the power is required to be exercised on objective
considerations by a speaking order after affording the parties an opportunity to put forward their respective points of view. That apart, it cannot be
said that no guidance is given in the Act in the matter of exercise of the power conferred by Sub-section (2) of Section 25-N.
Para 49: We are also unable to agree with the submission that the requirement of passing a speaking order containing reasons as laid down in sub-
section(2) or Section 25-N does not provide sufficient safeguard against arbitrary action. In S.N. Mukherjee v. Union of India it has been held that
irrespective of the fact whether the decision is subject to appeal, revision or judicial review, the recording of reasons by an administrative authority
by itself serves a salutary purpose, viz., it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision-
making(SCC p.612 para 36)
Para 53: In the instant case the order under Sub-section (2) granting or refusing permission for retrenchment is to be passed either by the
appropriate Government or authority specified by the appropriate Government, and the said order is required to be a speaking order based on
objective consideration of relevant facts after following the principles of natural justice. In the circumstances the absence of a provision for appeal
or revision is not of much consequence especially when it is open to an aggrieved party to invoke the jurisdiction of the High Court under Article
226 of the Constitution.
Para 55: The remedy of judicial review under Article 226 is, in our view, an adequate protection against arbitrary action in the matter of exercise of
power by the appropriate Government or authority under Sub-section (2) of Section 25-N of the Act. The third contention is, therefore, rejected.
If the decision making power is vested with an higher authority i.e. the State that itself is a sufficient legislative safeguard and it cannot be held
to be arbitrary. Coupled with the fact that a further judicial review under Article 226 of the High Court safeguards the rights of citizens. Therefore,
this Court is of the opinion that Section 205, more particularly 205(2) and 205(11) does not suffer from any illegality and it does not hit by the vice
arbitrariness prohibited by Article 14.
It must be noted that disqualifications are permitted under the 73rd amendment to the Constitution and provided under The Tamil Nadu
Panchayat Act. Apart from pre-election disqualification with reference to the election of members to their office, there is also disqualifications
provided under the very same Act even after election. It is not as if a Panchayat president can never be removed during his term of office, if he gets
disqualified even after the election.
The Panchayat president is normally an elected leader of the Panchayat and he is also the executive authority of the Panchayat. He has to be
made accountable in his dealing with public funds. The Supreme Court has in Vineet Narain v. Union of India reported in 1998 1 SCC 227, laid
down certain norms for persons holding public office and their accountability. The following passages found in paras 54 (f), 55 and 54. may be
usefully quoted.
Para 54 (f): The Seven principles of Public Life are stated in the Report by Lord Nolan, thus:
THE SEVEN PRINCIPLES OF PUBLIC LIFE
f. Selflessness
Holders of public office should take decisions solely in terms of the public interest. They should not do so in order to gain financial or other material
benefits for themselves, their family, or their friends.
g. Integrity
Holders of public office should not place themselves under any financial or other obligation to outside individuals or organisations that might
influence them in the performance of their official duties.
h. Objectivity
In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits,
holders of public office should make choices on merit.
Accountability
Holders of public Office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is
appropriate to their office.
Openness
Holders of public office should be as open as possible about all the decisions and actions that they take. They should give reasons for their
decisions and restrict information only when the wider public interest clearly demands.
Honesty
Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in
a way that protects the public interest.
Leadership
Holders of public office should promote and support these principles by leadership and example.
Para:55. These principles of public life are of general application in every democracy and one is expected to bear them in mind while scrutinising
the conduct of every holder of a public office. It is trite that the holders of public offices are entrusted with certain powers to be exercised in public
interest alone and, therefore, the office is held by them in trust for the people. Any deviation from the path of rectitude by any of them amounts to a
breach of trust and must be severely dealt with instead of being pushed under the carpet. If the conduct amounts to an offence, it must be promptly
investigated and the offender against whom a prima facie case is made out should be prosecuted expeditiously so that the majesty of law is upheld
and the rule of law vindicated. It is the duty of the judiciary to enforce the rule of law and, therefore, to guard against erosion of the rule of law.
Para: 54. It is a similar perception in England which had led to the constitution of a Committee headed by Lord Nolan on Standards in Public life.
In Volume I of Lord Nolan''s Report (1995), the general recommendations made are:
General recommendations
Some of our conclusions have general application across the entire service:
Principles of public life
The general principles of conduct which underpin public life need to be restated. We have done this. The seven principles of selflessness,
integrity, objectivity, accountability, openness, honesty and leadership are set out in full on p.14.
Codes of conduct
All public bodies should draw up codes of conduct incorporating these principles.
Independent scrutiny
Internal systems for maintaining standards should be supported by independent scrutiny.
Education
More needs to be done to promote and reinforece standards of conduct in public bodies, in particular through guidance and training, including
induction training.
The Supreme Court has set standards that all public authority must be accountable in the public activities in both their official and public
capacity. In the present case, the apprehension expressed by the petitioners that the arbitrary power of the District Collector will be used without
any check cannot be accepted, as there has been a sufficient safeguard provided under the Act.
The Supreme Court while dealing with an amendment to the Haryana Panchayat Act vide its decision reported in Javed and Others Vs. State
of Haryana and Others, has upheld the said amendment. By the said amendment any person who has more than two children were prohibited for
contesting the Election. In doing so, it observed in paras 22,23,24,28 and 60, which are as follows:
Para 22. Right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute. At the most, in view
of Part IX having been added in the Constitution, a right to contest election for an office in Panchayat may be said to be a constitutional right- a
right originating in the Constitution and given shapre by a statute. But even so, it cannot be equated with a fundamental right. There is nothing
wrong in the same statute which confers the right to contest an election also to provide for the necessary qualifications without which a person
cannot offer his candidature for an elective office and also to provide for disqualifications which would disable a person from contesting for, or
holding, an elective statutory office.
Para 23. Reiterating the law laid down in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency and Jagan Nath v. Jaswant Singh this
Court held in Jyoti Basu v. Debi Ghosal. (SCC p.696 para 8).
8.A right to elect, fundamental though it is to democracy, is anomalously enough, neither a fundamental right nor a common law right. It is pure and
simple, a statutory right. so is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be
elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation.
Para 24 In Jamuna Prasad Mukhariya v. Lachhi Ram a candidate at the election made a systematic appeal to voters of particular caste to vote for
him on the basis of his caste through publishing and circulating leaflets. Section 123(5) and 124(5) of the Representation of the People Act 1951,
were challenged as ultra vires Article 19(1)(a) of the Constitution, submitting that the provisions of the Representation of the People Act interfered
with a citizen''s fundamental right to freedom of speech. Repelling the contention, the Constitution Bench held that these laws do not stop a man
from speaking. They merely provide conditions which must be observed if he wants to enter Parliament. The right to stand as a candidate and
contest an election is not a common law right; it is a special right created by a statute and can only be exercised on the conditions laid down by the
statute. The Fundamental Rights Chapter has no bearing on a right like this created by a statute. The appellants have no fundamental right to be
elected and if they want to be elected they must observe the rules. If they prefer to exercise their right of free speech outside these rules, the
impugned sections do not stop them. In Sakhawat Ali v. State of Orissa the appellants nomination paper for election as a Councillor of the
Municipality was rejected on the ground that he was employed as a legal practitioner against the Municipality which was a disqualification under
the relevant Municipality Act. It was contended that the disqualification prescribed violated the appellant''s fundamental rights guaranteed under
Articles 14 and 19(1)(g) of the Constitution. The Constitution Bench held that the impugned provision has a public purpose behind it i.e. the purity
of public life which would be thwarted where there was a conflict between interest and duty. The Constitution Bench further held that the right of
the appellant to practise the profession of law guaranteed by Article 19(1)(g) cannot be said to have been violated because in laying down the
disqualification the Municipal Act does not prevent him from practising his profession of law; it only lays down that if he wants to stand as a
candidate for election he shall not either be employed as a paid legal practitioner on behalf of the Municipality or act as a legal practitioner against
the Municipality. There is no fundamental right in any person to stand as a candidate for election to the Municipality. The only fundamental right
which is guaranteed is that of practising any profession or carrying on any occupation, trade or business. The impugned disqualification does not
violate the latter right. Primarily no fundamental right is violated and even assuming that it be taken as a restriction on his right to practise his
profession of law, such restriction would be liable to be upheld being reasonable and imposed in the interests of the general public for the
preservation of purity in public life.
Para 28 At the very outset we are constrained to observe that the law laid down by this Court in the decisions relied on is either being misread or
read divorced of the context. The test of reasonableness is not a wholly subjective test and its contours are fairly indicated by the Constitution. The
requirement of reasonableness runs like a golden thread through the entire fabric of fundamental rights. The lofty ideals of social and economic
justice, the advancement of the nation as a whole and the philosophy of distributive justice - economic, social and political - cannot be given a go-
by in the name of undue stress on fundamental rights and individual liberty. Reasonableness and rationality, legally as well as philosophically,
provide colour to the meaning of fundamental rights and these principles are deducible from those very decisions which have been relied on by the
learned Counsel for the petitioners.
Para:60. Looked at from any angle, the challenge to the constitutional validity of Section 175(1)(q) and Section 177(1) must fail. The right to
contest an election for any office in Panchayat is neither fundamental nor a common law right. It is the creature of statute and is obviously subject to
qualifications and disqualifications enacted by legislation.
Therefore, the election to a Panchayat is only a statutory right and not a constitutional right. If the Panchayat Act provides for a disqualification
as well as removal from office for proved misconduct, it cannot be attacked on the ground excessive constitutional delegation or that it suffers from
the vice prohibited by Article 14 of the Constitution.
Hence, both the Writ Petitions are misconceived and will stand dismissed. No costs. Consequently, connected Miscellaneous petitions are
closed.