6 May 2010

'MP Local Area Development Scheme' not unconstitutional: Supreme Court

Dismissing the writ petitions challenging the validity of Members of Parliament Local Area Development Scheme, a Constitutional Bench of the Supreme Court has declared the scheme to be intra vires the Constitution and in consonance with the spirit of the welfare state envisaged therein. The scheme initiated in 1993 and "formulated for enabling the Members of Parliament to identify small works of capital nature based on locally felt needs in their constituencies" and "to enable the Members of Parliament to recommend works of developmental nature with emphasis on the creation of durable community assets based on the locally felt needs to be taken up in their Constituencies" was challenged as being contrary to the specific stipulations of the Constitution relating to use of funds from Government Exchequer. 

The petitions, entitled Bhim Singh v. Union of India and others, were represented by Senior Advocate and acclaimed legal luminary and constitutional expert K.K. Venugopalan and noted  public spirited lawyer Prashash Bhushan while the current Attorney General of India G.E. Vahanvati argued as amicus curiae. On a careful perusal of the constitutional provisions, the Bench concluded as under;
1) Owing to the quasi-federal nature of the Constitution and the specific wording of Article 282, both the 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. 
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 normally 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.
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 Appropriation Acts have been duly passed year after year. 
5) Indian Constitution does not recognize strict 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 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 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.
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.
10) The Scheme does not result in an unfair advantage to the sitting Members of Parliament and does not amount to a corrupt practice.

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