BHIM SINGH v. UNION OF INDIA AND ORS.

[P. SATHASIVAM, J.] Implementing Agencies. For purposes of execution A of works through Government Departments, District Authority can engage units for example, Public Health Engineering, Rural Housing, Housing Boards, Electricity Boards, and Urban Development Authorities etc, as Implementing B Agencies.

3.1. Each MP shall recommend eligible works on MP's letter head duly signed. A letter format from the MP to the District Authority is at Annexure Ill to the C Scheme. Recommendations by representative(s} of MPs are not admissible.

3.3. The District Authority shall identify the Implementing · Agency capable of executing the eligible work qualitatively, timely and satisfactorily. The District . D Authority shall follow the established work scrutiny; technical, work estimation, tendering and administrative procedure of the State/UT Government concerned in the matter of work execution, and shall be responsible for timely and E effective implementation of such works.

3.4. The work and the site selected for the work execution by the MP shall not be changed, except with the concurrence of the MP concerned. F 3.5. Where the District Authority considers that a recommended work cannot be executed due to some reason, the District Authority shall inform the reasons to the MP concerned, under intimation to the Government of India and the State/UT G Government within 45 days from the date of receipt of the proposal.

3.14. Decision making powers in regard to technical, financial and administrative sanctions to be H

p. 272 Copy page pinpoint

A accorded under the Scheme, vest in the district level functionaries. To facilitate quick implementation of projects under this Scheme, vest in the district level functionaries. To facilitate quick implementation of projects under this Scheme, full powers should be B delegated by the State/UT Governments to the district functionaries. The District Authorities will have full powers to get the works technically approved and financial estimates prepared by the competent district functionaries before according c the final administrative sanction and approval. The District Authority should, before sanctioning the work, ensure that all clearances for such works have been taken from the competent authorities and the work conforms to the Guidelines. D 4.1. The annual entitlement of rupees two crores will be released in two equal instalments of rupees one crore each by Government of India directly to the District Authority (District Collector/ District Magistrate/ Deputy Commissioner or the Chief E Executive of the Municipal Corporation, or the Chief Executive of the District Planning Committee as the case may be), under intimation to the State/UT Nodal Department and to the Member of Parliament concerned. F 5.4. The District Authority will submit for every year the audited accounts, reports and certificates to the State Government and the Ministry of Statistics and Programme Implementation. G 5.8. The District Authorities have been implementing MPLADS since 1993-94. They are to submit periodically works Completion Report, Utilization Certificate, and Audit Certificates. These Certificates are to be furnished to the Ministry of H I ,.

p. 273 Copy page pinpoint

[P. SATHASIVAM, J.] - Statistics and Programme Implementation right A from inception." . . .

Clause 6.2 of the Guidelines enumerates the role of the Central .Government and Clause 6.3 defines the role of the State/UT Government. Clause 6.4 enumerates the role of the District 8 Authority and Clause 6.5 refers to the role of the Implementing Agencies. Annexure-11 contains List of works which are prohibited under MPLAD Scheme. Annexure~IVE enumerates type of works in which the MPLAD Scheme .funds to' be implemented. Annexure-IX refers about Audit Certifi,cate and C the details to be furnished by the auditor.

45Copy pinpoint45. From the perusai of the above clauses contained in the guidelines of MPLAD Scheme, it is clear that th~re has been a .close coordination between the authorities, namely, the Central Government, State Gov~rnment and the District D Authorities. It is also clear that every Member of Parliament (Lok Sabha) Is authorized to only recommend such works which would be of general public utility in his owi:i constituency that too for a public purpose. The Member of·Rajya Sabha is to select work as per the scheme in his State. The role of the E Member of Parliament is very limited to the initial choice of a selection of projects subject to the choice of project being found eligible by the District Authority/Commissioner or Municioal Authority, if found otherwise feasible. F

46Copy pinpoint46. The issue raised by the petitioners that under the guise of the Scheme there is arbitrary and ma/afide use of powers by MPs in allocating the work and using the funds does not hold good in the light of the following information: There are three levels of accountability which emerge fn:>m a study of the working of the Scheme, (1) the accountability within the G Parliament, (2) the Guidelines, and (3) the steps taken which are recorded in the Annual Reports.

47Copy pinpoint47. The Lok Sabha has ~'et-up an Ad-hoc Committee on H

p. 274 Copy page pinpoint

A the working of MPLAD Scheme. The website of the House states that:

"The Committee on Members of Parliament Local Area Development Scheme (Lok Sabha), an ad hoc Committee was constituted for the first time on 22 February, 1999 by B the Speaker as per provisions of Rule 254(1) of the Rules of Procedure and Conduct of Business in Lok Sabha. Initially the Committee consisted of 20 Members. Later, the membership was raised to 24. The Chairman is appointed c Committee." .. by the Speaker from amongst the Members of the

Lok Sabha Ad-hoc Committee on MPLAD in furtherance of its functions viz; to analyse the actual benefits of the scheme realized, the deficiencies and pitfalls encountered in the D implementation of this scheme and the corrective measures which could be taken for the smooth implementation of the scheme on the basis of past experience of over a decade p·resented its Fifteenth Report by the Ministry of Statistics and Programme Implementation on the subject 'MPLADS- A E Review' in December 2008.

48Copy pinpoint48. The Committee in order to answer the questions that arose in the Era Sezhiyan Report and also the views expressed against the MPLAD scheme by Shri J.M. Lyngdoh, former F Chief Election Commissioner on behalf of India Rejuvenation Initiative commented on i) uncontrolled management of the bureaucracy, (ii) Lack of Monitoring System, and (iii) Irregularities in Implementation.

49Copy pinpoint49. In order to bring financial discipline at the district level and rP-duce the accumulation of unspent funds with the Districts, a new condition of unspent balance for the MP being less than rupees one crore was imposed during the financial year (2004- 05). The release procedure was further streamlined and strengthened by prescribing for the original (not photo-copy) of the Monthly Progress Report, duly signed by DC/DM under his

p. 275 Copy page pinpoint

[P. SATHASIVAM, J.] seal. This resulted in bringing down the unspent balance. To A reduce the accumulated funds further and to improve accountability, some more conditions have been laid down for release of MPLADS funds in a new MPLADS funds release and management procedure which was adopted with effect from 1st June 2005. Now the District Authorities have to submit B Utilization Certificates and Audit Certificates also for the earlier releases in addition to fulfilling the aforesaid two conditions before second installment in any given year is considered for release to any MP.

50Copy pinpoint50. Software has been developed and launched on 30th C November 2004 by the Ministry of Statistics and Programme Implementation. l;he same had been adopted by majority of the districts and the reports of completed and ongoing projects in respect of 361 districts out of 428 Nodal districts have already come on the website of the Ministry. The Ministry had nominated 78 officers of JAG and SAG level working in the Ministry, as Nodal Officers for the districts for entering the data in 'respect of the ongoing and completed works. This had 1 facilitated substantial improvement in the data entry in the software. So far, data in respect of 1,006 MPs has been uploaded. Result 9riented reviews of the Scheme have been taken up by the Secretary and Additional Secretary of the Ministry at All-lndia level.

51Copy pinpoint51. As discussed earlier, under the MPLAD SGheme, the F MP. concerned recommends works. The District Authority verifies the eligibility and technical feasibi.lity of each recommended work. Decision making power ln regard to technical, financial, administrative sanctions accorded under the scheme, vests in the district level functionaries. The sanctioning G of eligible works and their execution is done by the District Authorities and State Governments monitor the MPLAD works implementation. Beside this, the nodal District Authority has to coordinate with other districts falling in the same constituency (in case of Lok Sabha constituencies) and with all the districts H

p. 276 Copy page pinpoint

A in which the MP has recommended work (in case of Rajya Sabha MPs). Thus the nature of the Scheme is such that it requires considerable technical, administrative and accounting expertise, highly efficient coordination with various agencies and organizations and a high degree of logistic and managerial 8 support for its successful implementation. Only the District Authorities possess all the above mentioned requisite competence and can effectively implement the scheme at the District level. Barring few irregularities, which are taken care of by the State Audit Authorities, the funds allocated under the C MPLAD Scheme are being properly monitored for better .utilization to achieve the objectives of the Scheme.

52Copy pinpoint52. The information furnished shows that the Scheme has benefited the local community by meeting their various developmental needs such as drinking water facility, education, electricity. health and family welfare, irrigation, non-conventional energy, community centres, public libraries, bus stands, rbads, pathways, bridges, sports infrastructure etp. Mere allegation of misuse of the funds under the Scheme by some MPs by itself may not be a ground for scrapping of the Scheme as checks and safeguards have been provided. Parliament has the power to enquire and take appropriate action against the erring members. Both Lok Sabha & Rajya Sabha have set up Standing Committee to monitor the work's under the Scheme.

53Copy pinpoint53. The second level of accountability is provided by the Guidelines themselves. As noted above, these guidelines have been continuously revised, the latest being the fourth time resulting in the Guidelines of 2005. As we have already adverted to, the Guidelines make it clear that the MPLAD Scheme is for the recommendation of works of developmental G nature, especially for the creation of durable community assets based on local needs. According to the Guidelines, these include durable assets of national priorities like drinking water, primary education, public health, sanitation and roads. Clearly,

SHIM SINGH v. UNION OF INDIA AND ORS. . 277 [P. SATHASIVAM, J.)

the Scheme does not give a carte blanche to the MPs with A respect to the kind of works they can recommend.

· 54. Furthermore, under the Guidelines, once-the:.cMP .. · recommends any work, District Authority in\.Vhose jurisdiction, the proposed works are to be executed, wlll maintain proper . 8 · accounts, follow proper procedure for sanction and . implementation for timely completion of works. [vide Clause 3.2)

Annex II provides those works which are prohibited under the Scheme: c LIST OF WORKS PROHIBl.TED UNDER MPLADS

1. OffiC:e anti ·residential buildings belonging to Central, . ·and. State Governments, their Departments, Government f\gencies/ Org~nizations and Public Sector Undertakings: D

.2. Office and residential ·buildings, and other works belonging to private, cooperative and commercial organizations.

3. All works involving commercial establishments/units. E

4. All maintenance works of any type.

5. All renovation, and repair works except heritage and archeological monuments and buildings with specific permission available from the Archeological Survey of F India.

6. Grants and loans, contribution to any Central and State/ UT Relief Funds.

7. Assets to be named after any person. G

8. Purchase of all movable items except vehicles, earth movers, and equipments meant for hospital, educational, sports, drinking water and sanitation purposes belonging to Central, State, UT and Local Self Governments. (This f-1

p. 278 Copy page pinpoint

A will be subject to 10% of the Capital Cost of the work for which such items are proposed)

9. Acquisition of land or any compensation for land acquired.

B 10. Reimbursement of any type of completed or partly completed works or items.

11. Assets for individual/family benefits.

12. All revenue and recurring expenditure. c

13. Works within the places of religious worship and on land belonging to or owned by religious faith/group. ,

Further accounting and monitoring procedure is provided by the o Guidelines themselves under Clause 5 a111d 6 of the Guidelines, 2005.

55Copy pinpoint55. We have perused through the Annual Reports of the Scheme which provide for transparency and accountability in the working of the Scheme. Measures that have been introduced in this regard are highlighted below:

1. Software for monitoring MPLADs Works was launched in November 2004. The software enables online monitoring of details of works and the analysis of this data is used to bring out various reports, once the data entry and uploading in respect of a constituency is completed.

2. As per the Right to Information Act, 2005 and the rules framed there under, all citizens have the right to information on any aspect of the MPLAD Scheme including works recommended/ sanctioned/executed under it, costs of work sanctioned, implementing agencies, quality of works completed, user agencies etc. H

p. 279 Copy page pinpoint

[P. SATHASIVAM, J.]

3. It has been stipulated under the guidelines that for greater public awareness, for all works executed under MPLAD Scheme, a plaque (stone/metal) indicating the cost involved, the commencement, ·completion and inauguration date and the name of ·the MP sponsoring the project should be permanently erected."

56Copy pinpoint56. All these information which are available through their website clearly show that the Scheme provides various levels of accountability. The argument of the petitioners that MPLADS C is inherently arbitrary seems unfounded. No doubt there may be improvements to be made. But this court does not sit in judgment of the veracity of a scheme, but only its legality. When · · there is evidence that an accountability mechanism is available, there is no reason for us to interfere in the Scheme. D . 57. Further, the Scheme only supplements the efforts of the State and other local Authorities and does not seek to interfere in the functional as well as financial domain of the local planning authorities of the State. On the other hand, it only strengthens the welfare measures taken by them. The Scheme, in its present form, does not override any powers vested in the State Government or the local authority. The implementing authorities can sanction a scheme subject to compliance with the local laws. Various guidelines make it clear that the Scheme has to be implemented with the co-ordination of various authorities and subject to the supervision and control of the nodal Ministry i.e. Ministry of Statistics and Programme Implementation. The respondents have highlighted that the collective responsibility ensures in implementing the Scheme and over the years, various checks are also put in place, including the measures to make the scheme more transparent in all respects. We are satisfied that the Government of India is not delegating its power to the Members of Parliament to spend the money contrary to the mandate of the constitutional provisions. H

p. 280 Copy page pinpoint

A Separation of Powers

58Copy pinpoint58. Another contention raised by the petitioners is that the Scheme violates the principle of Separation of Powers under the Constitution. The concept of Separation of Powers, even though not found in any particular constitutional provision, is 8 inherent in the polity the Constitution has adopted. The aim of Separation of Powers is to achieve the maximum extent of accountability of each branch of the Government.

59Copy pinpoint59. While understanding this concept, two aspects must C be borne in mind. One, that Separation of Powers is an essential feature of the Constitution. Two, that in modern governance, a strict separation is neither possible, nor desirable. Nevertheless, till this principle of accountability is preserved, there is no violation of separation of powers. We D arrive at the same conclusion when we assess the position within the Constitutional text. The Constitution does not prohibit overlap of functions, but in fact provides for some overlap as a Parliamentary democracy. But what it prohibits is such exercise of function of the other branch which results in wrestling away of the regime of constitutional accountability.

60Copy pinpoint60. In Rai Sahib Ram Jawaya Kapur and Ors. v. The State of Punjab, AIR 1955 SC 549, this Court held that:

"The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature. It can also, when so empowered, exercise judicial functions in a limited way. H

p. 281 Copy page pinpoint

[P. SATHASIVAM, J.] The executive Government, however, can never go against A the provisions of the Constitution or of any law."

61Copy pinpoint61. In Kesavananda Bharati vs. State of Kera/a & Another, (1973) 4 SCC 225 and later in Indira Gandhi vs. Raj Narain, AIR 1977 SC 69, this Court declared Separation of 8 Powers to be a part of the Basic Structure of the Constitution. In Kesavananda Bharati's case, (supra) Shelat & Grover, JJs. in para 577 observed the precise nature of the concept as . follows:

"There is ample evidence in the Constitution itself to C indicate that it creates a system of checks and balances by reason of which powers are so distributed thatrnone of the three organs it sets up can become so pre-dominant as to disable the others from exercising and discharging powers and functions entrusted to them. Though the D Constitution does not lay down the principle of separation of powers in all ifs rigidity as is the case in the United States Constitution but it envisages such a separation to a degree as was found in Ranasinghe's case . The judicial review provided expressly in our Constitution by means of E Articles 226 and 32 is one of the features upon which hinges the system of checks and balances."

62) The specific nature of this concept in our polity has also been reiterated time and again. F In Special Reference No.1 of 1964 (1965) 1 SCR 413, this court held: ·

" ...Whether or not there is distinct and rigid separation of powers under the Indian Constitution, there is no doubt that G the constitution has entrusted to the Judicature in this country the task of construing the provisions of the Constitution and of safeguarding the fundamental rights of the citizens. When a statute is challenged on the ground .that it has been passed by a Legislature without authority, H

p. 282 Copy page pinpoint

A or has otherwise unconstitutionally trespassed on fundamental rights, it is for the courts to determine the dispute and decide whether the law passed by the legislature is valid or not. Just as the legislatures are conferred legislative authority and there functions are B normally confined to legislative functions, and the function I and authority of the executive lie within the domain of executive authority, so the jurisdiction and authority of the Judicature in this country lie within the domain of adjudication. If the validity of eny law is challenged before c the courts, it is never suggested that the material qqestion as to whether legislative authority has been exceeded or fundamental rights have been contravened, can be decided by the legislatures themselves. Adjudication of such a dispute is entrusted solely and exclusively to the Judicature of this country. (Emphasis supplied] D

63Copy pinpoint63. In Indira Nehru Gandhi v. Raj Narain (1975) Supp SCC 1, Ray, J. noted that:

"The doctrine of separation of powers is carried into effect in countries like America and Australia. In our Constitution there is separation of powers in a broad sense ... the doctrine of separation of powers as recognized in America is not applicable to our country."

64Copy pinpoint64. The learned Chief Justice noted (in para 47) that the rigid separation of powers as under American Constitution or Australian Constitution does not apply to our country. He further noted that: "The American Constitution provides for a rigid separation of governmental powers into three basic divisions the executive, legislative and judicial. It is an essential principle of that Constitution that powers entrusted to one department should not be exercised by any other department. The Australian Constitution follows the same pattern of distribution of powers. Unlike these l

p. 283 Copy page pinpoint

[P. SATHASIVAM, J.] Constitutions, the Indian Constitution does not expressly A vest the three kinds of power in three different organs of the State. But the principle of separation of powers is not a magic formula for keeping the three organs of the State within the strict confines of their functions. As observed by Cardozo, J., in his dissenting opinion in Panama B Refining Company v. Ryan (1934) 293 US 388, 440 the principle of separation of powers "is not a doctrinaire concept to be made use of with pedantic rigour. There must be sensible approximation, there must be elasticity of adjustment in response to the practical necessities of c Govt. which cannot foresee today the developments of tomorrow in their nearly infinite variety". Thus, even in America, despite the theory that the legislature cannot delegate its power to the executive. a host of rules and regulations are passed by non-legislative bodies, which 0 have been judicially recognised as valid." [Emphasis supplied]

65Copy pinpoint65. In State of Rajasthan v. Union of India (1978) 1 SCR 1, this Court observed: E "This Court has never abandoned its constitutional function as the final Judge of constitutionality of all acts purported to be done under the authority of the Constitution. It has not refused to determine questions either of fact or of law so long as it has found itself possessed of power to do it and F the cause of justice to be capable of being vindicated by its actions. But, it cannot assume unto itself powers the Constitution lodges elsewhere or undertake tasks entrusted by the Constitution to other departments of State which may be better equipped to perform them. The G scrupulously discharged duties of all guardians of the Constitution include the duty not to transgress the limitations of their own constitutionally circumscribed powers by trespassing into what is properly the domain of other constitutional organs. Questions of political wisdom H

p. 284 Copy page pinpoint

A or executive policy only could not be subjected to judicial control. No doubt executive policy must also be subordinated to constitutionally sanctioned purposes. It has its sphere and limitations. But, so long as it operates within that sphere, its operations are immune from judicial B interference. This is also a part of the doctrine of a rough separation of powers under the Supremacy of the Constitution repeatedly propounded by this Court and to which the Court unsweivingly adheres even when its views differ or change on the correct interpretation of a particular c constitutional provision." (para. 40)

66Copy pinpoint66. In Minerva Mills Ltd. and Ors. v. Union of India (UOI) and Ors. ( 1980) 3 SCC 625 it was obseived: D "93. It is a fundamental principle of our constitutional scheme, and I have pointed this out in the preceding paragraph, that every organ of the State, every authority under the Constitution, derives its power from the Constitution and has to act within the limits of such power .... Under our Constitution we nave no rigid separation of powers as in the United States of America, but there is a broad demarcation, though, having regard to the complex nature of governmental functions, certain degree of overlapping is inevitable. The reason for this broad separation of powers is that "the concentration of powers in any one organ may" to quote the words of Chandrachud, J. (as he then was) in Smt. Indira Gandhi's case (supra) "by upsetting that fine balance between the three organs, destroy the fundamental premises of a G democratic Government to which we are pledged."

[Emphasis supplied]

67Copy pinpoint67. Again, in the Constitution Bench judgment in A.K. Roy H v. Union of India AIR 1982 SC 710, Chandrachud, C.J.

p. 285 Copy page pinpoint

[P. SATHASIVAM, J.]

speaking for the majority held at para 23 pg. 723 that "our A constitution does not follow the American pattern of strict separation of powers".

68Copy pinpoint68. This court has previously held that the taking away of the judicial function through legislation would be violative of 8 separation of powers. As Chandrachud, J. noted in Indira Nehru Gandhi case (supra), "the exercise by the legislature of what is purely and indubitably a judicial function is impossible to sustain in the context even of our co- operative federalism which contains no rigid distribution of powers but which provides a system of salutary checks and balances." [para. 689] This is because such legislation upsets the balance between the various organs of the State thus harming the system of accountability in the Constitution. Thus, the test for the violation of separation of powers must be precisely this. A law would be violative of separation of powers not if it results in some overlap of functions of different branches of the State, but if it takes over an essential function of the other branch leading to lapse in constitutional accountability. It is through this test that we must analyze the present Scheme. E

69Copy pinpoint69. In the present case, we are satisfied that there is no violation of concept of separation of powers. As we have noted above, there is no rigid separation of powers under the Constitution and each one of the arms at times perform other functions as well. The Member of Parliament is ultimately responsible to Parliament for his action as an MP even under the Scheme. All Members of Parliament be it a Member of Lok Sabha or Rajya Sabha or a nominated Member of Parliament are only seeking to advance public interest and public puepose and it is quite logical for the Member of Parliament to carry out developmental activities to the constituencies they represent. There is no reason to believe that the MPLAD Scheme would not be effectively controlled and implemented by the District Authority in the case of Panchayats and Commissioners/Chief H

p. 286 Copy page pinpoint

A Executive Officers, in the case of Municipalities and Corporations with adequate safeguards under the guidelines.

70Copy pinpoint70. Furthermore, Chapter 3 of the Guidelines provide the procedure to be followed for the implementation of the Scheme. As per the guidelines, the MP's function is merely to 8 "recommend a work" [vide Chapter 3.1). The District Authority and Chief Executive Officer have been entrusted with the absolute authority to discharge upon the feasibility of works recommended, assess the funds required for execution of the work, implementation of works by engaging an implementing C agency, supervision of work and ensure financial transparency by providing audit certificates and utilization certificate. As such it is clear that the District Authority and Municipal Authority play a pivotal role in implementation and execution of MPLAD Scheme. Major role is played by Panchayats, Municipalities and D Corporations under MPLAD Scheme in execution and implementation of works. As rightly pointed out by the learned amicus curiae and Additional Solicitor General, the Scheme concentrates on community development and creation of assets at the grass-root level and in such circumstances, the same cannot be interfered with by the courts without reasonable grounds. As mentioned earlier, the role of an MP in MPLAD Scheme is merely recommendatory in nature and the entire execution has been entrusted to the District/Municipal Authority which belongs to the executive organ. It is their responsibility to furnish completion certificate, audit certificate and utilization certificate for each work and if this is not done further funds can not be released.

71Copy pinpoint71. It is also the grievance of the petitioners that with the passing of 73rd and 74th Amendments to the Constitution G introducing Part-IX in relation to the Panchayat and Part IX-A in relation to Municipalities, the entire area of local self- government has been entrusted to Panchayats under Article 243G read with Schedule 11 and to the Municipalities under Articles 243W, 243ZD and 243ZE read with Schedule 12 of H

p. 287 Copy page pinpoint

[P. SATHASIVAM, J.] the Constitution. According to them the MPLAD Scheme is A inconsistent with Part-IX and IX-A insofar as the entire decision making process in regard to community infrastructure of works of development nature for creation of durable community assets including drinking water, primary education, public health, sanitation and roads etc. is given to the Member of Parliament B even though the decision-making process in regard to these very same matters is conferred to the Panchayats and Municipalities. The MPLAD Scheme, according to them, is in direct conflict with Part-IX and IX-A of the Constitution. It was argued that the Scheme introduces a foreign element which c takes over part of the functions of the Panchayats and Municipalities. It was further contended that the implementing agency need not be the Panchayat or Municipality. Hence, the discretion, power and jurisdiction of the Panchayat and Municipality to decide on what project is to be located in which 0 site is to be implemented through which agency is taken away. In other words, according to the learned counsel for the petitioners, this power being denuded by the Scheme, the Scheme is rendered wholly unconstitutional and bad.

72Copy pinpoint72. We are not inclined to accept this contention raised E by the petitioners. The extracts qf the Guidelines we have produced above make it clear that even ·though the District Authority is given the power to identify the agency through which a particular work recommended by the MP should be executed, the Panchayati Raj Institutions (PRls) will be the preferred F Implementing Agency in the rural areas, through the Chief Executive of the respective PRI, and the Implementing Agencies in the urban areas would be urban local bodies, through the Commissioners/Chief Executive Officers of Municipal Corporations, Municipalities. G

Whether MPLADS leads to unfair advantage of sitting MPs as against their rivals

73Copy pinpoint73. Finally, an argument was made by the petitioners that the scheme violates the democratic principle of free and fair H

p. 288 Copy page pinpoint

A elections. It was argued that sitting MPs had a clear edge over their opponents as they had MPLAD Scheme at their disposal which they could spend or promise to spend. It was argued that there is a possibility of misusing the money available under the Scheme and it gives unfair advantage to sitting MPs. B

74Copy pinpoint74. This argument is liable to be rejected as it is not based on any scientific analysis or empirical data. We also find this argument a half-hearted attempt to contest the constitutionality of the Scheme. MPLADS makes funds available to sitting MPs for developmental work. If the MP utilizes the funds properly, it would result in his better performance. If that leads to people voting for the incumbent candidate, it certainly does not violate any principle of free and fair elections.

75Copy pinpoint75. As we have already noted, MPs are permitted to recommend specific kinds of works for the welfare of the people, i.e. which relate to development and building of durable community assets (as provided by Chapter 1.3 of the Guidelines). These works are to be conducted after approval of relevant authorities. In such circumstances, it cannot be claimed that these works amount to an unfair advantage or corrupt practices within the meaning of the Representation of the Peoples Act, 1951. Of course such spending is subject to the above Act and the regulations of the Election Commission.

Conclusions F

76Copy pinpoint76. In the light of the above discussion, we summanL. conclusions as follows: (1) Owing to the quasi-federal nature of the Constitution and the specific wording of Article 282, both the G Union and the State have the power to make grants for a purpose irrespective of whether the subject matter of the purpose falls in the Seventh Schedule provided that the purpose is "public purpose" within the meaning of the Constitution. H

p. 289 Copy page pinpoint

[P. SATHASIVAM, J.] (2) The Scheme falls within the meaning of "public purpose" aiming for the fulfillment of the development and welfare of the State as reflected in the Directive Principles of State Policy. (3) Both Articles 275 and 282 are sources of spending funds/monies under the Constitution. Article 282 is narmally meant for special, temporary or ad hoc schemes. However, the matter of expenditure for a "public purpose", is subject to fulfillment of the constitutional requirements. The power under Article 282 to sanction grant is not restricted. c (4) "Laws" mentioned in Article 282 would also include Appropriation Acts. A specific or special law need not be enacted by the Parliament to resort to the provision. Thus, the MPLAD Scheme is valid as D Appropriation Acts have been duly passed year after year. (5) Indian Constitution does not recognize stric't separation of powers. The constitutional principle of separation of powers will only be violated if an · essential function of one branch is taken over by another branch, leading to a removal of checks and balances. (6) Even though MPs have been given a seemingly executive function, their role is limited to 'recommending' works and actual implementation is done by the local authorities. There is no removal of checks and balances since these are duly provided and have to be strictly adhered to by the guidelines of the Scheme and the Parliament. Therefore, the Scheme does not violate separation of powers. (7) Panchayat Raj Institutions, Municipal as well as H

p. 290 Copy page pinpoint

A local bodies have also not been denuded of their role or jurisdiction by the Scheme as due place has been accorded to them by the guidelines, in the implementation of the Scheme. (8) The court can strike down a law or scheme only on B the basis of its vires or unconstitutionality but not on the basis of its viability. When a regime of accountability is available within the Scheme, it is not proper for the Court to strike it down, unless it violates any constitutional principle. c (9) In the present Scheme, an accountability regime has been provided. Efforts must be made to make the regime more robust, but in its current form, cannot be struck down as unconstitutional. D (10) The Scheme does not result in an unfair advantage to the sitting Members of Parliament and does not amount to a corrupt practice.

77Copy pinpoint77. Accordingly, we hold that the impugned MPLAD E Scheme is valid and intra vires of the Constitution and all the writ petitions transfer petition as well as the transferred cases are liable to be dismissed as devoid of any merit, consequently, the same are dismissed. No order as to costs.

F D.G. Writ Petitions and transferred cases dismissed.