PUCL Bulletin, August 2002
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)
2.2 For this commission,
charged with the statutory responsibility of promoting and protecting
human rights, it becomes necessary to ask.
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:-
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
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.
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:
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.
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.
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.
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
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.
42. That in all these
exercises referred in the preceding paragraphs, objections are invited
and disposed of which takes quite some time.
(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.
(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.