PUCL Bulletin, August 2002

UP-Uttaranchal PUCL:
Right to development is a human right

Writ petition in Uttaranchal

(The Uttaranchal High Court at Nainital admitted a writ petition of the UP-Uttaranchal PUCL on December 13, 2001. The writ petition is based on the petitioners contention that the right to development is a Human Right which can be realised through the local self governments by decentralizing planning in accordance with part IX-A of the Constitution at the grass root level. We excerpt below the important portions of the writ petition filed by Dr. Om Dutt Singh, General Secretary, UP-Uttaranchal PUCL. The petition is being argued by Shri Ravi Kiran Jain, Senior Advocate, and the Counsel for the petitioner is Shri Siddharth Shah. -- General Secretary)

Granville Austin in "The Indian Constitution", "Corner stone of a Nation" rightly said: - Two revolutions, the national and the social, had been running parallel in India since the end of the First World War. With independence, the national revolution would be completed, but the social revolution must go on. Freedom was not an end in itself only a mean to end, Nehru had said, that end being the raising of the people to higher level and hence the general advancement to humanity".

The first task of this assembly (Nehru told the members) is to free India through a new Constitution, to feed the starving people, clothe the naked masses, and to give every Indian the fullest opportunity to develop himself according to his capacity.

The National Human Rights Commission (NHRC) in its Annual Reports of 1996-97 referring to the famous "Tryst with density" speech of Jawaharlal Lal Nehru put a question to itself the context of its statutory responsibility of promoting and protesting human rights in Para 2-1, 2-2 and 2-3 of the said report which are quoted below:

2.1 This report is being written as India approaches the fiftieth anniversary of its independence, in words etched in the historical memory of the nation, its first Prime Minister, speaking in the Constituent Assembly at midnight on 14-15 August, 1947 said: "Long years ago we made a tryst with destiny, and now the time comes when we shall redeem our pledge, now wholly or in full measure, but very substantially.

2.2 For this commission, charged with the statutory responsibility of promoting and protecting human rights, it becomes necessary to ask.
Have we, fifty years after Independence, done enough to redeem that pledge in terms of our compatriots? Has our pledge to the people of India, that their rights to life, liberty, equality and the dignity of the individual as guaranteed by our constitution and underwritten by our treaty commitments, been redeemed if "not wholly", then "very substantially"?

2.3 The answer to these questions is complex and it can scarcely be the purpose of this Annual Report to provide a commentary on fifty years of independence. Yet the contours of the answer need to be delineated, if only to relate the Commission's functions and efforts in 1996-97 with the realities of the nation as they are today, half a century after independence. What do the contours reveal"?

The elaborate answer to the NHCR to the aforesaid question is to be found in paragraph 2.4 to 2.16. A photocopy of the relevant extract of the National Human Rights Commission (1996-97) is being filed herewith and marked as Annexure No. 3 to this petition.

10- That in paragraph no. 2-12 of the aforesaid report the National Human Rights Commission says that it has a conviction that all Human Rights whether Civil or political, economical, social, and cultural must be viewed as the 1993 Vienna Declaration of Programme of action did us "Universal, Indivisible, inter dependent and inter related".

11- That Human rights can be classified in the following three categories:-
a. Civil and Political Rights,
b. Economic, social and cultural rights,
c. Collective Rights of self-determination and rights to development.

The first category of these rights is contained in part XIX of the Constitution of India under the heading of "Fundamental Rights" which are enforceable through courts. The second category of rights are contained in Part IV under the heading of 'Directive Principles of State Policy' which " shall not be enforceable by any court, but the principles there in laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws". The third category of these human rights are contained in part IX and IX-A of the Constitution.

12- That the states in India as they existed prior to the State reorganization Act, 1956 were formed by way of historical accidents. On the basis of the recommendation of the State reorganization Commission in 1955, the State reorganization Act 1956 was enacted and all the States except Utter Pradesh, Bihar and Jammu and Kashmir were reorganized, substantially, on the basis of the language.

13- That the State of Uttaranchal came into existence as a result of long drawn movement. The people of this region felt that this region was backward and was required to being developed by the people of this area.

14- That the Constitution's 73rd and 74th Amendment Act contained in Part IX and IX-A of the Constitution were enacted to create institutions of Local Self Government. These institutions are meant for Decentralized Planning.

15- That it appears that after the working of the Constitution of India for more than 43 years, the people of this country realised that all Human Rights and fundamental freedoms cannot be fully realised. Unless Institutions are created at grassroots levels to achieve the objectives contained in Part IV of the Constitution of India. 73rd and 74th Amendments achieved this object. The Supreme Court rightly noticed as to the status of these constitutional instrumentalities in paragraph nos. 20 to 24 of its judgment in the case of Ahmedabad Municipal Corporation Vs. Nawab Khan Gulab Khan reported in AIR 1997 S.C. 152 at Page 162 and 163, the photocopy whereof is being filed herewith and marked as Annexure No. 4 to this petition.

16. That in yet another judgment of Supreme Court in Air India Statutory Corporation Vs. United labour Union reported in AIR 1997 Supreme Court page 645 (at 667), it was held that Directive Principles in our Constitution are fore-runners of the UNO convention of right to live as inalienable Human Right and every person and all people are entitled to, contribute to, enjoy, social, cultural and political development in which all human rights and fundamental freedoms would be fully realised. The Xerox copy of relevant extract of judgment at page 667 and 668 is being filed herewith and marked as Annexure No. 5 to this petition.

17. That it is for the realisation of this right to development that the Institution of Local Self Governments have been brought of the level of constitutional functionary by 73rd and 74th Amendment Act of the Constitution.

18. That in factual background since 1950 to the coming into existence of State of Uttaranchal, it appears that the first task of the people of Uttaranchal after its creation should have been the exercise of Collective Human Rights to Development contained in Part IX and IX-A what should be the model of the development of particular region can now be answered by the people of that region at local level.

19. That Eleventh and the twelfth schedule read with Article 243- and Article 243 show that the backwardness of the various regions of this country in economical, social and cultural fields is sought to be removed by empowering people to participate in the preparation of plans for economical development and social justice and for the implementation of Directive Principles contained in part IV which cannot be realised on the pattern of Centralized Development Schemes adopted at central and State levels and therefore it appeared necessary to create Institution of local Self Government by inserting Part IX- and IX-A in the Constitution to achieve the objects contained in part IV.

20. That India is known as a developing country. It has to develop as a developed country. There is an urge in the people to develop it. The Centralized Planning is destructive of this urge.

21. That right to development is an inalienable Human Right by virtue of which every human person and all people are entitled to participate in, contribute to and, enjoy economical, social, cultural and political development.

22. That the State of Uttaranchal was formed on 9th November 2000. On this day three essential Constitutional Institutions and functionaries came into existence.
(i) The Governor
(ii) The Chief Justice and other judges of High Court
(iii) The Council of Ministers

23. That the executive and the Governor were required to form immediately a State Election Commission and State Finance Commission so that the further process of strengthening people through the institution of Local Self Government could be undertaken.

24. That this writ petition is being filed to seek a relief that Union of India may be directed to fulfill its constitutional duty under Article 345 and for that purpose dismiss the State Government and assume to it all necessary functions of the State Government to fulfill these constitutional obligations.

25. That it is learnt by the petitioner that in writ petition no. 247 of 2000 filed in this court on 18-12-2000, it was pointed out that the State government did not constitute State Election Commission and State Finance commission. In spite of that, the State Election Commission and State Finance Commission has been constituted only recently.

26. That there has to be an interaction of various constitutional functionaries namely the State Election Commission, the State Finance commission, the State Legislature, etc., to take decision from time to time as to the composition of Panchaayats, reservation of seats, authorizing the Panchaayat, levy, appropriate taxes, etc., etc. If State Government fails in its duty to appoint the Constitutional functionaries then it cannot be said to be carrying on in accordance with the provisions of the constitution. Since it is the duty of the Union of India under Article 355 of the Constitution to ensure that the Government of every State is carried on in accordance with the provision of the Constitution. Union of India should have intervened and should have appointed the State Election Commission and State Finance Commission by exercising its powers under Article 356 pf the Constitution of India.

27. That the Elections of the Panchaayat in hill area of Uttaranchal State excluding district Haridwar were held in November 1996. The elections took place according to the following programmes:
(i) Nominations till 17.10.1996 (ii) Scrutiny of ballot papers 18& 19.10.1996 (iii) The last date for withdrawal 22.10.1996 (iv) Polling held on 31.10.1996, 1.11.1997, 4.11.1996 (v) Counting started on 7.11.1996 and The results were declared on 8.11.1996.
Thereafter the first meeting took place between 10.12.1996 and 1.12. 1996

28. That for composition for Panchaayat in the new State of Uttaranchal, the legislation was required to make law by applying its mind to relevant consideration contained in Article 243-G. It appears that the legislature has been totally oblivious of its function to make provisions with respect to the territorial constituencies, reservation of seated on the new state. In fact, it appears that all the constitutional functionaries in the state have been as if, unaware of the various function and duties in Part IX, which they are, required to be undertaken immediately after coming into existence of the new state.

29. That there have to be constituted in every state Panchaayats at various levels in accordance with the Provisions of part IX-The composition and reservations etc. of the Panchaayats in every State has to be in accordance with the particular conditions of a particular State. This aspect has been totally ignored so far as the State of Uttaranchal is concerned.

30. That Article 243-E (1) provides that every Panchaayat, unless sooner dissolved under law for the time being in force shall continue for five years from the date appointed for the date of first meeting and no longer. Under clause 3 of this Article, an election to constitute Panchaayat has to be completed before the expiration of its duration specified in clause (1).

31. That there are Panchaayats at the village, intermediate and district levels. For village level Panchaayat U.P. Panchaayat Raj Act, 1947 is applicable in Uttaranchal and for intermediate and district level Panchaayat and Zila Panchaayats Adhiniyam, 1961 is applicable.

32. That by U.P. Act No. 9 of 1994 the aforesaid two Acts were amended to bring them in tune with part IX of the Constitution of India. As under Article 223-N the provision of any law related to Panchaayat enforced in a State immediately before the Constitution's 73rd Amendment Act, which would be inconsistent with the provisions of Part IX could continue until the expiration of one year for such commencement.

33. That keeping in mind the natural resources like forest, mines and minerals, herbs and other medicinal plants, the level of development, the new government which assumed office on 9th November, 2000, was required to fix a criterion of establishment and incorporation of Panchaayats at various levels in the new State.

34. That after demarcating the various areas of Panchaayats at various levels, electoral rolls for each territorial constituency of Gram Panchaayat, Kshettra Panchaayat and Zila Panchaayats has to be prepared. According to the information of the Petitioner, the respondent - State, nor the State Election Commission had prepared a fresh electoral roll for the next election.

35. That delimitation, preparation of electoral roll, and the criteria of reservation of seats is required to be made before the notification of election is issued.

36. That according to the UP Panchaayat Raj Registration of Elections Rules, 1994 an elaborate procedure has to be followed for preparation of electoral roll.

37. That in regard to the five municipalities in the districts of Haridwar the term expired on 30.12.2000. The new State came into existence on 9.11.2000. There was sufficient time to complete the election of those municipalities till 30.12.2000. However, an ordinance was promulgated on 11.12.2000, which was replaced by Uttaranchal Act No.1 of 2001 by which a declaration was made that the term of a Board expires and no elections are held, an Administrator would be appointed. The vies of the Ordinance and the Act was challenged in this Court in Civil Misc. Writ petition No. 247 (MB) of 2000. During the pendency of the said petition, second Amendment Act of 2001 making some amendments in the First Act was also enacted. The writ petition was disposed of on 28.9.2001. The Xerox copy of the order dated 28.9.2001 is being filed herewith and marked as Annexure No. 6 to this writ petition.

38. That in the aforesaid judgment it has been held that if no election were held before the expiry of the term, it would lead to frustrate the objective of the Constitution, a direction was given to "immediately initiate the process to complete the election as mandated by part IX-A of the Constitution of India". The mandate of the Constitution has not been respected by the State government and this is also a ground to hold that the Government of this state is not being carried on in accordance with the provisions of the Constitution of India.

39. That if election to constitute Panchaayats are not completed before its duration specified in clause (1) it would create a constitutional crisis in as much as the duration of earlier Panchaayat having come to and end, there would not be any Panchaayat in existence "in accordance with the provisions of "Part IX of the Constitution.

40. That this court has held in its judgment dated 28.9.2001 in civil Misc. writ petition No. 247 (M/B) of 2000 that the provision to hold election before expiry of 5 years under Article 243-U is mandatory. The submission of the learned Advocate General to the contrary was not accepted and this court observed as follows if it is held to be directory and elections are not held before the completion of duration of five years, as a consequence which will completely impair the basic institution of Self Government. This consequence will lead to frustrate the objective of the Constitution. It is, therefore, not permissible to accept the submission of the Advocate general.

41. That the present government has not applied its mind at all to lay down a criterion for establishment of Gaon Sabhas, Samitees, and Zilla Panchaayats. After the establishment of Gaon Sabhas electoral roll for each territorial constituency was to be prepared. Before doing so the territorial constituency had to be delimited in view of the new carving out of area of various Panchaayats at various levels. Then the Gram Panchaayat had to be established for every Panchaayat area. Section 3, 9 and 12 of U.P. Panchaayat Raj Act throw some light on this aspect as also the following Rules.
(i) UP Panchaayat Raj (Registration of Electors), Rules, 1994 (ii) The UP Panchaayat Raj (Delimitation of Territorial Constituencies for Election of members) Rules, 1994; (iii) UP Panchaayat Raj Determination and publication of the Number of Persons belonging to the backward Classes); Rules, 1994.

42. That in all these exercises referred in the preceding paragraphs, objections are invited and disposed of which takes quite some time.

43. That the petitioner has no other equally, efficacious alternative remedy except to invoke the extraordinary jurisdiction of the Hon'ble High Court under Article 226 of the Constitution of India inter alia on the following grounds amongst other:

(A) Because the government of the new State appears to be totally oblivious of its Constitutional obligation of creating Institutions of local Self Government in accordance with Part IX and IX-A of the Constitution of India.

(B) Because the State Government has violated the principles laid down in Part IV of the Constitution which are fundamental in the governance of the people and it is the duty of the State of the people and it is the duty of the State to apply these principles in making laws.

(C) Because if it can be demonstrated that a state is not following the principles laid down on part IX and ignoring the fundamental principles, the State government can not be said to be carrying on in accordance with the said provisions of the Constitution of India.

(D) Because the people of this State raised a demand of a new State as they wanted to develop it as mentioned in fundamental principles contained in Part IV.

(E) Because the State Government did not appoint a State Finance Commission and State Election Commission for a long period. In the absence of these two Constitutional functionaries the Government of State was being run against the Constitutional mandates and norms.

(F) Because even after the appointment of State Election Commission no steps appears to have been taken to constitute Panchaayats at various levels and to complete the process of election before the expiry of term of the Panchaayat.

It is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to :
(i) Issue a writ order or direction in the nature of mandamus commanding the Union of India to fulfill its obligation under Article 355 of the Constitution and to assume to itself all the function of State of Uttaranchal by dismissing the present Government in order to fulfill the obligation of bringing into existence the Panchaayats in Rural and Urban areas a envisaged in Part IX and part IX-A of the Constitution of India.

(ii) Issue a writ in order or direction in the nature of mandamus commanding the Union of India to give proper direction to the present State Election Commission or to appoint a new State Election Commission after dismissing the present one to start the exercise of preparation of electoral roll, delimitation of wards, and other exercises to conduct elections of Panchaayats.

(iii) Issue a writ, order or direction in the nature of mandamus commanding Union of India to make appropriate legislation through the Parliament to recognize Panchaayats. In Rural and Urban areas according to the Local, Geographical, cultural and other relevant factors of this region.

(iv) Pass such other and further order which this Hon'ble court may deem fit and proper in the facts and circumstances of the case.

(v) Award the costs of the petition to the petitioner.

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