Bhim Singh Vs. U.O.I & Ors [2010] INSC 358 (6 May 2010)
Judgment
IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO.21 OF 1999 Bhim Singh .... Petitioner(s) Versus Union of India & Ors. .... Respondent(s) WITH WRIT PETITION (CIVIL) NO.404 OF 1999, TRANSFERRED CASE (CIVIL) NOS. 22 OF 2005, 23, 24, 36, 37 &
38 OF 2000 AND WRIT PETITION (CIVIL) NO. 376 OF 2003 AND TRANSFER PETITION (CIVIL) NO. 450 OF 2004
P. Sathasivam, J.
1) The petitioners have filed the above writ petitions challenging the Members of Parliament Local Area Development Scheme (hereinafter referred to as the "MPLAD Scheme") as ultra vires of the Constitution of India. They also prayed for direction from this Court for scrapping of the MPLAD Scheme and for impartial investigation for the misuse of the funds allocated in the Scheme.
2) Though the challenge in the writ petitions and the transferred cases is to the constitutional validity of the MPLAD Scheme, in view of substantial question of interpretation of Articles 275 and 282 of the Constitution 1 of India are involved, particularly, transfer of funds from the Union Government to the Members of Parliament, by reference dated 12th July, 2006 a three-Judge Bench headed by Hon'ble the Chief Justice of India referred the same to a Constitution Bench. In this way, the above matters are heard by this Constitution Bench.
3) Brief facts:
On 23.12.1993, the then Prime Minister announced the MPLAD Scheme. This scheme was formulated for enabling the Members of Parliament to identify small works of capital nature based on locally felt needs in their constituencies.
The objective, as seen from the guidelines of the Scheme, is 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. The guidelines prescribe that right from inception of the Scheme, durable assets of national priorities viz., drinking water, primary education, public health, sanitation and roads etc. are being created. In 1993-94, when the Scheme was launched, an amount of Rs.5 lakh per Member of Parliament was allotted which became rupees one crore per annum from 1994- 95 per MP Constituency. This was stepped up to rupees two crores from 1998-99. Initially the Scheme was under the 2 control of the Ministry of Rural Development and Planning and thereafter in October, 1994, it was transferred to the Ministry of Statistics & Programme Implementation. The Scheme is governed by a set of guidelines which were first issued by the Ministry of Rural Development in February, 1994. After the Scheme was transferred to the Ministry of Statistics and Programme Implementation, revised guidelines were issued in December, 1994, February, 1997, September, 1999, April, 2002 and November, 2005.
4) After taking us through the various constitutional provisions, the MPLAD Scheme and its guidelines, Mr. K.K.
Venugopal, learned senior counsel, appearing for the petitioner in Writ Petition (C) No. 21/1999 made the following submissions:
(i) No money should be spent from the Consolidated Fund of Union other than one provided under the Constitution of India.
(ii) Instead of decision taken by Union of India under Article 282 of the Constitution about "public purpose", it has given power to a Member of Parliament, which violates Article 282 of the Constitution of India.
(iii)MPLAD Scheme is a total abdication of powers and functions by the Union of India. Such a wholesale 3 transfer of funds for the benefit of works or projects cannot be executed under Article 275 as "grants-in-aid of the revenues of a State", without proper recommendation of the Finance Commission.
(iv) The executive powers of the Union under Article 73 are co-extensive with the legislative powers of the Parliament, hence even executive powers of the Union cannot be exercised contrary to the entries in the List in Schedule VII of the Constitution so as to encroach on a subject falling in List II.
(v) The MPLAD Scheme is contrary to the 73rd and 74th Amendments to the Constitution of India. After the 73rd and 74th Amendments, the entire area of local self-government has been entrusted to Panchayats under Article 243G and to the Municipalities under Articles 243W, 243ZD and 243ZE read with Schedule- XII of the Constitution. By virtue of the said Amendments, the decision making power in regard to development rests with Panchayats and Municipalities, however, due to the present Scheme, the works are being given to individual MPs.
(vi) The MPLAD Scheme is inconsistent with Part IX and Part IX-A insofar as decision making process and inconsistent with the local self-government. The 4 choices and functions of the Panchayats and Municipalities being denuded by the MPLAD Scheme, the Scheme is rendered wholly unconstitutional and bad.
5) Mr. Prashant Bhushan, learned counsel appearing for the petitioners in Writ Petition (C) No. 376 of 2003, in addition to the above submissions, highlighted the following points:
(i) Article 280 mandates the setting up of the Finance Commission, which would be constituted every five years.
This Article enumerates the financial power of the Centre and the States to collect, levy appropriate taxes and even the executive powers are clearly spelt out in Article 73.
As per Articles 280 and 275, it is the Finance Commission which is an independent body has the mandate to recommend the division of taxes between the Centre and the States as well as the assignment of grants-in-aid to the revenues of States. Though language of Article 282 appears to be wide enough to cover all grants, it obviously cannot be construed to mean that the Centre can give grants to States on a regular basis. The regular grants from the Centre to the States can be given only under Article 275 and that too 5 in accordance with the Finance Commission's recommendations.
(ii) Article 282 is not intended to be used as a second channel of transfers from Centre to States. This Article only allows money to be defrayed by the Central Government for a particular public purpose though they may fall under State subjects.
(iii) Articles 112 to 114 have conferred power on the Union Government to appropriate funds for its own expenditure; however, a part of the same cannot be used for giving discretionary grants to the State.
(iv) The Centre by enlarging the scope of Article 282 has infringed the specific scheme designed by the Constitution regarding the flow of finances from the Centre to the States. Further, most of the centrally sponsored schemes running in different States are being funded through Article 282 only, which is clear misuse of the provisions of the Constitution.
6) In reply to the above submissions, Mr. Mohan Parasaran, learned Additional Solicitor General, appearing for the Union of India made the following submissions:
6 (i) The MPLAD Scheme is intra vires of the Constitution.
The source of its power is traceable to Article 114(3) read with Articles 266(3) and 282 of the Constitution of India.
(ii) Article 282 has to be given its widest amplitude and should be interpreted widely so that the public purpose enshrined therein can effectively be achieved both by the Union and the States to advance Directive Principles of State policy.
(iii)The Scheme is being implemented based on the sanction which it receives from the Parliament on the passing of the Appropriation Act during every financial year. Appropriation for the Scheme is done after resort to the special procedure as applicable to Money Bills, as prescribed under Article 109. Articles 112(2) and 113(2) mandate that the expenditure proposed to be made from the Consolidated Fund of India are bound to be laid before both the Houses of Parliament in the form of "Demand for Grants" and is subject to the assent of the House of People.
(iv) The "Law" mentioned in Article 266(3) is the Appropriation Act traceable to Article 114(3). The MPLAD Scheme as a whole is based upon a policy 7 decision and having a Parliamentary sanction in its implementation in the form of Appropriation Acts, no further enactment is required.
(v) From the date of inception of Constitution i.e. from 1950, by virtue of Article 282, the Union of India through Planning Commission implemented several welfare measures though most of the subjects would fall within the State subjects. (List II of the VII Schedule).
(vi) Use of expression "Grants" in Article 282 will have to be construed in a wider sense and it is not subject to any Article especially Article 275.
(vii) The Scheme is not inconsistent with the various other Schemes of Panchayats and Municipalities. On the other hand, it only supplements the welfare measures taken by them. There is no violation of concept of separation of powers.
7) Mr. G.E. Vahanvati assisted this Court as amicus curiae and submitted the following points:- (i) The Parliament has plenary power to sanction expenditure. Besides the expenditure charged upon the Consolidated Fund of India under Article 112(3), Demand for Grants sought by the Union executive are 8 also met from the Consolidated Fund of India. The Demands for Grants are voted in Parliament as per Article 113(2). The final authority to decide the quantum of monies to be sanctioned is the Lok Sabha.
Lok Sabha has the final control over expenditure.
(ii) The Parliament has sanctioned monies to be paid out by the MPLAD Scheme by voting on the demand for grant forwarded by the Union Executive from the Ministry of Statistics and Programme Implementation.
This has been done after appropriate voting on the Demand for Grant and passing of Appropriation Act which is a law within the meaning of Article 266(3).
(iii) Article 282 acts as an enabling provision to allow the Union or the State to make any grant by conferring the widest possible power. The only requirement to be satisfied is that the purpose for which such a grant is made is a `public purpose'.
(iv) The role of MP in the MPLAD Scheme is purely recommendatory in nature and the entire function has been entrusted to the District Authority which belongs to the executive organ. The District Authority has to furnish completion certificate, audit certificate and utilization certificate for each work. If this is not done, further funds are 9 not released. The Scheme makes it clear that the District Authority plays the key role whereas the Members of Parliament function is merely to recommend the work.
8) On the contentions urged, the following questions arise for our consideration:-
1. Whether the scheme is not valid as a grant under Article 282 of the Constitution of India? Whether Article 275 is the only source for a regular and permanent scheme and whether Article 282 is intended to apply only in regard to special, temporary or ad- hoc schemes?
2. Whether having regard to Article 266(3) of the Constitution, apart from an appropriation by an Appropriation Act, an independent substantive enactment is required for the MPLAD Scheme instead of mere executive guidelines?
3. Whether the MPLAD Scheme falls under clauses (b), (bb) and (c) of Article 280 (3) of the Constitution, and exercise of such powers of the Finance Commission by Planning Commission make the Scheme unconstitutional?
4. Whether the Scheme obliterates the demarcation between the legislature and the executive by making MPs 10 virtual members of the executive without any accountability?
5. Whether the MPLAD scheme is inconsistent with Part IX and Part IX-A of the Constitution by encroaching upon the powers and functions of elected bodies?
6. Whether the MPLAD Scheme, even if it is otherwise constitutional is liable to be quashed for want of adequate safeguards, checks and balances?
7. Whether the MPLAD Scheme gives an unfair advantage to the MPs in contesting elections by violating the provisions of the Constitution? 9) Thus, first we must determine the constitutional scheme regarding allocation of funds and what is the appropriate mode of such allocation, i.e. whether a special enactment is required for such allocation. Then, we must determine if the Parliament is empowered under Article 282 of the Constitution to make allocation under the MPLAD Scheme. Subsequently, we need to see whether a robust accountability mechanism is provided under the Scheme. And finally whether this Scheme violates the constitutional principle of separation of powers. Let us consider the contentions raised by both sides with reference to the constitutional provisions as well as salient features and 11 the guidelines issued then and there for implementation of the MPLAD Scheme.
Constitutional Scheme and Whether a Special Enactment is needed in order to allocate funds under the Constitution 10) The main issue relates to whether the funds ear-marked and being spent from the Consolidated Fund of Union for implementation of the MPLAD Scheme is in accordance with the constitutional provisions.
11) Part XII Chapter I of the Constitution relates to Finances. Article 266 of the Constitution refers to consolidated funds and public accounts of India and of the States. This Article explains what all are the components of the consolidated funds of India. Article 266 reads as under:
"266. Consolidated Funds and public accounts of India and of the States - (1) Subject to the provisions of article 267 and to the provisions of this Chapter with respect to the assignment of the whole or part of the net proceeds of certain taxes and duties to States, all revenues received by the Government of India, all loans raised by that Government by the issue of treasury bills, loans or ways 12 and means advances and all moneys received by that Government in repayment of loans shall form one consolidated fund to be entitled "the Consolidated Fund of India", and all revenues received by the Government of a State, all loans raised by that Government by the issue of treasury bills, loans or ways and means advances and all moneys received by that Government in repayment of loans shall form one consolidated fund to be entitled "the Consolidated Fund of the State".
(2) All other public moneys received by or on behalf of the Government of India or the Government of a State shall be credited to the public account of India or the public account of the State, as the case may be.
(3) No moneys out of the Consolidated Fund of India or the Consolidated Fund of a State shall be appropriated except in accordance with law and for the purposes and in the manner provided in this Constitution."
Sub-clause (3) of Art. 266 makes it clear that money from the consolidated fund of India can be extended only in accordance with law and for the particular purpose as well as in the manner as provided in the Constitution.
13 12) Mr. K.K. Venugopal, learned senior counsel, appearing for the petitioner in W.P.(C) No. 21/1999 heavily relying on sub-clause (3) of Art. 266 contended that in view of specific embargo, in the absence of separate law, the money from the consolidated fund could not be spent. He further pointed out that the Union of India has not indicated a separate legislation for implementing MPLAD Scheme. It is the claim of the learned counsel for the petitioners that the impugned scheme and the allocation of funds thereof is a clear violation of the specific arrangement devised in the Constitution regarding the transfer of funds from the Centre to the States.
13) Under Article 275 Grants-in-Aid are provided from the Consolidated Fund of India to the States which are in need of assistance. Article 275 is reproduced hereunder:
"275.Grants from the Union to certain States.- (1) Such sums as Parliament may by law provide shall be charged on the Consolidated Fund of India in each year as grants-in- aid of the revenues of such States as Parliament may determine to be in need of assistance, and different sums may be fixed for different States:
Provided that there shall be paid out of the Consolidated Fund of India as grants-in-aid of the revenues of a State 14 such capital and recurring sums as may be necessary to enable that State to meet the costs of such schemes of development as may be undertaken by the State with the approval of the Government of India for the purpose of promoting the welfare of the Scheduled Tribes in that State or raising the level of administration of the Scheduled Areas therein to that of the administration of the rest of the areas of that State:
Provided further that there shall be paid out of the Consolidated Fund of India as grants-in-aid of the revenues of the State of Assam sums, capital and recurring, equivalent to- (a) the average excess of expenditure over the revenues during the two years immediately preceding the commencement of this Constitution in respect of the administration of the tribal areas specified in Part I of the table appended to paragraph 20 of the Sixth Schedule;
and (b) the costs of such schemes of development as may be undertaken by that State with the approval of the Government of India for the purpose of raising the level of administration of the said areas to that of the administration of the rest of the areas of that State.
15 (1-A) On and from the formation of the autonomous State under Article 244A,- i) any sums payable under clause (a) of the second proviso to clause (1) shall, if the autonomous State comprises of all the tribal areas referred to therein, be paid to the autonomous State, and, if the autonomous State comprises only some of those tribal areas, be apportioned between the State of Assam and the autonomous State as the President may, by order, specify;
(ii) there shall be paid out of the Consolidated Fund of India as grants-in-aid of the revenues of the autonomous State sums, capital and recurring, equivalent to the costs of such schemes of development as may be undertaken by the autonomous State with the approval of the Government of India for the purpose of raising the level of administration of that State to that of the administration of the rest of the State of Assam.
(2) Until provision is made by Parliament under clause (1), the powers conferred on Parliament under that clause shall be exercisable by the President by order and any order made by the President under this clause shall have effect subject to any provision so made by Parliament:
Provided that after a Finance Commission has been constituted no order shall be made under this clause by the 16 President except after considering the recommendations of the Finance Commission."
14) Article 280 mandates the setting up of the Finance Commission which would be reconstituted every five years or at such earlier time as the President considers necessary.
The Finance Commission, which is an independent body, would be duty bound to ascertain the percentage of taxes to be devolved to the States which are collected by the Union under Article 270 as amount of grants-in-aid to be given to the States under Article 275. It was also highlighted by the learned senior counsel for the petitioners that after the 73rd and 74th Amendments, which introduced the Panchayati Raj Systems and Municipalities in the country, the Finance Commission is also mandated to take into account the resources needed by the States to augment the Consolidated Fund of a State to supplement the resources of the Panchayats and Municipalities in the State. These have to be done while taking into account the recommendations of the State Finance Commission. Article 280 of the Constitution reads as under:
"280.Finance Commission.- (1) The President shall, within two years from the commencement of this Constitution and 17 thereafter at the expiration of every fifth year or at such earlier time as the President considers necessary, by order constitute a Finance Commission which shall consist of a Chairman and four other members to be appointed by the President.
(2) Parliament may by law determine the qualifications which shall be requisite for appointment as members of the commission and the manner in which they shall be selected.
(3) It shall be the duty of the Commission to make recommendations to the President as to- (a) the distribution between the Union and the States of the net proceeds of taxes which are to be, or may be, divided between them under this Chapter and the allocation between the States of the respective shares of such proceeds;
(b) the principles which should govern the grants-in-aid of the revenues of the States out of the Consolidated Fund of India;
(bb) the measures needed to augment the Consolidated Fund of a State to supplement the resources of the Panchayats in the State on the basis of the recommendations made by the Finance Commission of the State;
(c) the measures needed to augment the Consolidated Fund of a State to supplement the resources of the 18 Municipalities in the State on the basis of the recommendations made by the Finance Commission of the State;
(d) any other matter referred to the Commission by the President in the interests of sound finance.
(4) The Commission shall determine their procedure and shall have such powers in the performance of their functions as Parliament may by law confer on them."
15) It is submitted that these are the main financial provisions of the Constitution that determine how the taxes would be levied, collected, appropriated and distributed between the Centre and the States. It is also pointed out that not only the financial powers of the Centre and the States to collect, levy, appropriate taxes clearly defined in the Constitution but even the executive powers are clearly spelt out in Article 73 which reads as under:
"Article 73 Extent of executive power of the Union (1) Subject to the provisions of this Constitution, the executive power of the Union shall extend (a) to the matters with respect to which Parliament has power to make laws; and 19 (b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement:
Provided that the executive power referred to in sub- clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws.
(2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution."
16) It is contended that as per Article 73 the executive power of the Union shall extend to the matters with respect to which the Parliament has power to make laws. Proviso to this Article specifically bars the Central Government from exercising executive powers in any State to matters with respect to which the Legislature of the State also has power to make laws. This means that the executive powers of the Centre are restricted to the subjects spelt out in the Union List. This means that the Centre cannot spend 20 money on the subjects mentioned in the Concurrent and the State List unless provided for in the Constitution or any other law made by the Parliament.
17) However, it is the case of Mr. Mohan Parasaran, learned Additional Solicitor General, appearing for the Union of India that Articles 114 (3), 266(3) and 282 of the Constitution enable the Union of India to ear-mark funds by way of Grant for implementing schemes through the Member of Parliament. Mr. G.E. Vahanvati, appearing as amicus curiae has also reiterated that besides the expenditure charged upon the Consolidated Fund of India under Article 112(3), demand for grants sought by the Union executives are also met from the Consolidated Fund of India. He highlighted that the demands for grants are voted in the Parliament as per Article 113(2) and the final authority has to decide the quantum of monies to be sanctioned is the Lok Sabha.
Lok Sabha has the final control over the expenditure. He further highlighted that after the grant has been voted and accepted by the Parliament, a Bill is introduced to provide for appropriation of payments out of the Consolidated Fund of India. Such Bills are called Appropriation Bills. An Appropriation Bill is a Money Bill in terms of Article 110(1)(d) which has to be introduced as per Article 107 to be dealt with under Article 109. Even otherwise, according 21 to him, House of People has plenary power to sanction payments and expenditure from the Consolidated Fund of India. These can be in the form of Grants to the Union Executive by means of Appropriation Act.
18) Article 114 refers "Appropriation Bills" which reads as under:
"114. Appropriation Bills.-- (1) As soon as may be after the grants under article 113 have been made by the House of the People, there shall be introduced a Bill to provide for the appropriation out of the Consolidated Fund of India of all moneys required to meet-- (a) the grants so made by the House of the People; and (b) the expenditure charged on the Consolidated Fund of India but not exceeding in any case the amount shown in the statement previously laid before Parliament.
(2) No amendment shall be proposed to any such Bill in either House of Parliament which will have the effect of varying the amount or altering the destination of any grant so made or of varying the amount of any expenditure charged on the Consolidated Fund of India, and the decision of the person presiding as to whether an amendment is inadmissible under this clause shall be final.
22 (3) Subject to the provisions of articles 115 and 116, no money shall be withdrawn from the Consolidated Fund of India except under appropriation made by law passed in accordance with the provisions of this article."
Other enabling provision is Article 266 which we have already extracted. The next provision relied on by Mr. Mohan Parasaran, learned Additional Solicitor, appearing for the Union of India is Article 282 which reads as under:
"Miscellaneous Financial Provisions 282. Expenditure defrayable by the Union or a State out of its revenues - The Union or a State may make any grants for any public purpose, notwithstanding that the purpose is not one with respect to which Parliament or the Legislature of the State, as the case may be, may make laws."
Article 109 refers to special procedure in respect of Money Bills which reads as under:
"109. Special procedure in respect of Money Bills - (1) A Money Bill shall not be introduced in the Council of States.
(2) After a Money Bill has been passed by the House of the People it shall be transmitted to the Council of States for 23 its recommendations and the Council of States shall within a period of fourteen days from the date of its receipt of the Bill return the Bill to the House of the People with its recommendations and the House of the People may thereupon either accept or reject all or any of the recommendations of the Council of States.
(3) If the House of the People accepts any of the recommendations of the Council of States, the Money Bill shall be deemed to have been passed by both Houses with the amendments recommended by the Council of States and accepted by the House of the People.
(4) If the House of the People does not accept any of the recommendations of the Council of States, the Money Bill shall be deemed to have been passed by both Houses in the form in which it was passed by the House of the People without any of the amendments recommended by the Council of States.
(5) If a Money Bill passed by the House of the People and transmitted to the Council of States for its recommendations is not returned to the House of the People within the said period of fourteen days, it shall be deemed 24 to have been passed by both Houses at the expiration of the said period in the form in which it was passed by the House of the People."
"Money Bills" has been defined in Article 110 which reads as follows:
"110. Definition of "Money Bills"(1) For the purposes of this Chapter, a Bill shall be deemed to be a Money Bill if it contains only provisions dealing with all or any of the following matters, namely:-- (a) the imposition, abolition, remission, alteration or regulation of any tax;
(b) the regulation of the borrowing of money or the giving of any guarantee by the Government of India, or the amendment of the law with respect to any financial obligations undertaken or to be undertaken by the Government of India;
25 (c) the custody of the Consolidated Fund or the Contingency Fund of India, the payment of moneys into or the withdrawal of moneys from any such Fund;
(d) the appropriation of moneys out of the Consolidated Fund of India;
(e) the declaring of any expenditure to be expenditure charged on the Consolidated Fund of India or the increasing of the amount of any such expenditure;
(f) the receipt of money on account of the Consolidated Fund of India or the public account of India or the custody or issue of such money or the audit of the accounts of the Union or of a State; or (g) any matter incidental to any of the matters specified in sub-clauses (a) to (f).
(2) A Bill shall not be deemed to be a Money Bill by reason only that it provides for the imposition of fines or other pecuniary penalties, or for the demand or payment of fees for licences or fees for services rendered, or by reason that it provides for the imposition, abolition, remission, 26 alteration or regulation of any tax by any local authority or body for local purposes.
(3) If any question arises whether a Bill is a Money Bill or not, the decision of the Speaker of the House of the People thereon shall be final.
(4) There shall be endorsed on every Money Bill when it is transmitted to the Council of States under article 109, and when it is presented to the President for assent under article 111, the certificate of the Speaker of the House of the People signed by him that it is a Money Bill."
19) Article 111 makes it clear that when a Bill is passed by the House of Parliament, it shall be presented to the President and the President shall give his assent to the Bill or withholds assent therefrom.
20) Article 112 speaks about Annual Financial Statement which we call as `Budget' in common parlance. Article 113, which is also relevant, refers procedure in Parliament with respect to estimates which reads as under:
27 "113.Procedure in Parliament with respect to estimates - (1) So much of the estimates as relates to expenditure charged upon the Consolidated Fund of India shall not be submitted to the vote of Parliament, but nothing in this clause shall be construed as preventing the discussion in either House of Parliament of any of those estimates.
(2) So much of the said estimates as relates to other expenditure shall be submitted in the form of demands for grants to the House of the People, and the House of the People shall have power to assent, or to refuse to assent, to any demand, or to assent to any demand subject to a reduction of the amount specified therein.
(3) No demand for a grant shall be made except on the recommendation of the President."
21) The above Articles make it clear that the Union or the State is empowered to spend money from the Consolidated Fund strictly in accordance with the relevant provisions.
In other words, if Union of India intends to spend money from the Consolidated Fund of India, it shall be submitted in the form of demands for grants and only after approval 28 by the Parliament, the same are to be spent for various Schemes.
22) Framers of our Constitution had consciously created scheme for distribution and allocation of funds for various subjects. Article 246(1) makes it clear that Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (Union List). Sub-clause (2) of the said Article gives power to Parliament to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (Concurrent List). As per sub-clause (3) of the said Article, subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (State List).
23) According to Mr. K.K. Venugopal, learned senior counsel appearing for the petitioner, even funds can be utilized by the Union only in respect of various items enumerated in List I and List III and not in any of the items in List II. According to him, even Appropriation Act cannot satisfy the embargo provided in Article 246. We have already referred to Article 266 which speaks about Consolidated Funds and Public Accounts of India and of the 29 States. Sub-clause (1) of the said Article deals with income and sub-clause (3) refers to expenditure. We have also noted the assertion of the learned amicus curiae that the Parliament has plenary powers which are enshrined in the Constitution of India to sanction expenditure. He asserted that insofar as expenditure is concerned, Parliament is competent to spend money for any welfare scheme or for public purpose even if those schemes are referable to certain items in List II (State List) of the Seventh Schedule. Part XII of the Constitution deals with Finance, Property, Contracts and Suits. Chapter I of Part XII deals with "Finance". The first part of Chapter I deals with "General" provisions, the second part of Chapter I deals with "Distribution of Revenue between the Union and the States" and the third part deals with "Miscellaneous Financial Provisions". The arguments of the learned senior counsel for the petitioners have revolved around Article 282 and according to him the scope of this Article is very limited and the same cannot be invoked for the purposes of justifying the Scheme. How far Article 282 protects the impugned scheme, we will discuss in the later part of our judgment.
24) While considering legislative procedure, we have to see Articles 107 to 117. Article 107 deals with provisions 30 as to introduction and passing of Bills and provides that subject to the provisions of Articles 109 and 117 with regard to Money Bills and other Financial Bills, the Bill may originate in either House of the Parliament. Article 112 mandates that the President shall in respect of every financial year cause to be laid before both the Houses of the Parliament a statement of the estimated receipts and expenditure of the Government of India for the year referred to as the "Annual Financial Statement". Nowhere in the Constitution any reference is made to the word "Budget" but uses the expression "Annual Financial Statement". The above-mentioned Articles show that the estimates of expenditure must separately show the sum required to meet the expenditure as charged upon the Consolidated Fund of India as per Article 112(2)(a) and the sums required to meet other expenditure proposed to be made from the Consolidated Fund of India as per Article 112(2)(b). The said Article further requires that the estimates of expenditure have to distinguish between expenditure on revenue account and other expenditure. The expenditures which are charged upon the Consolidated Fund of India are set out in Article 112(3). Article 113 deals with the procedure in Parliament with respect to the estimates. The said Article makes it clear that there can 31 be no voting in relation to expenditure charged upon the Consolidated Fund of India. However, such expenditure can be discussed in either House of Parliament. It is also clear that besides the expenditure charged upon the Consolidated Fund of India under Article 112(3), the demands for grants sought by the Union Executive are also met from the Consolidated Fund of India. We have extracted Article 113 in earlier part of the judgment. The demands for grants are voted in Parliament as per Article 113(2).
The said sub-clause contains the plenary power of the House of the People to assent or to refuse to assent to any demand subject to a reduction of the amounts specified therein. Elaborate procedure has been provided in the "Rules of Procedure and Conduct of Business in Lok Sabha".
Rules 206 to 217 deal with "Demands for Grants". The above-mentioned Rules make it clear that the Demands for Grants are discussed and voted upon. Motions may be moved to reduce any demands. These are called "Cut Motions". By way of Cut Motions, grants may be rejected in totality or reduced by a certain amount or reduced by a token amount.
The elaborate procedure found in the abovementioned Articles as well as the Rules of Procedure clearly show that Lok Sabha controls the amount to be sanctioned out of the demands for grants placed by the Government. Thus, the 32 final authority to decide the quantum of monies to be sanctioned is the Lok Sabha.
25) Various Articles and the Rules of Procedure abundantly show that the Lok Sabha has the final control over expenditure. After the grant has been voted and accepted by the Parliament in terms of Article 113(2), a Bill is introduced. Under Article 114, a Bill has to be introduced to provide for appropriation of payments out of the Consolidated Fund of India. Such Bills are called Appropriation Bills. An Appropriation Bill is a Money Bill in terms of Article 110(1)(d), which has to be introduced as per Article 107 and has to be dealt with under Article 109. The procedure makes it clear that the recommendations of the Council of States are not binding on the House of People. The relevant Articles and the Rules of Procedure referred to above clearly show that, (1) The Financial Statement has to be laid before both the Houses of Parliament in terms of Article 112;
(2) The estimates in relation to expenditure and demands for grants can only be discussed by the House of the People vide Article 113;
(3) After the grants are approved, as per Article 114, the same are incorporated in the Appropriation Bill;
33 (4) The Appropriation Bill is a Money Bill and a Money Bill cannot be introduced in the Council of States while the Annual Financial Statement is to be laid before both the Houses, a Money Bill can only be introduced in the House of the People vide Article 110;
(5) While the Council of States has no role to play in the matter of sanction of expenditure and demand for grants, in relation to a Money Bill, it can only make recommendations vide Article 109(2). This may or may not be accepted by the House of the People.
26) If we analyze the abovementioned Articles and the Rules of Procedure, the argument that the Appropriation Act by itself is not sufficient to satisfy the requirements of Article 266(3) cannot be accepted. It is true that the activity of spending monies on various projects has to be separately provided by a law. However, if Union Government intends to spend money for public purpose and for implementing various welfare schemes, the same are permitted by presenting an Appropriation Bill which is a Money Bill and by laying the same before the Houses of Parliament and after getting the approval of the Parliament, Lok Sabha, in particular, it becomes law and there cannot be any impediment in implementing the same so long as the Scheme is for the public purpose.
34 27) As mentioned earlier, the law referred to in the Constitution for sanctifying expenditure from and out of the Consolidated Fund of India is the Appropriation Act, as prescribed in Article 114(3) which mandates that no money shall be withdrawn from the Consolidated Fund of India except under appropriation made by law based in accordance with the provisions of this Article. It provides that after the estimates of expenditure laid before House of People in the form of `demands of grants' has been passed, a Bill is to be introduced to provide for the appropriation out of the Consolidated Fund of India of all monies required to meet the grants made by the House of People.
In other words, withdrawal of moneys for the scheme is done only by means of an appropriation made by law in accordance with the provisions of Article 114. In pursuance of the aforesaid Constitutional provisions, it is pointed out on the side of the Government that upon demand of grant having been made under Article 113, Appropriation Bills were introduced and enacted in each year to appropriate moneys for the purposes of the MPLAD Scheme. In such circumstances, it is reasonable to accept that appropriation of public revenue for the purposes of the MPLAD Scheme has been sanctioned by the Parliament by Appropriation Acts.
35 28) As rightly pointed out by learned amicus curiae and learned Additional Solicitor General, the `law' here is the Appropriation Act, traceable to Article 114(3) and the purpose is for the scheme and the moneys withdrawn for outlay for the scheme from out of the Consolidated Fund of India in the manner as provided in the Constitution. We are satisfied that all the tests laid down under the provisions of Article 266(3) have also been fully satisfied in the implementation of the MPLAD Scheme. Further Article 283(1) provides that `law' made by the Parliament shall regulate withdrawal of money from Consolidated Fund of India. The Appropriation Act passed as per the provisions of Article 114 is `law' for the purpose of the Constitution of India and the respondents are fully justified in claiming that no separate or independent law is necessary since an item of expenditure forming part of the MPLAD Scheme or the activity on which the expenditure is incurred also, forms part and parcel of such Appropriation Act. In other words, Appropriation Acts are for the purposes of the Constitution of India and no further enactment is required on a proper interpretation of the Constitution of India.
It is useful to refer the law declared by this Court in Rai Sahib Ram Jawaya Kapur vs. The State of Punjab, (1955) 2 SCR 225 [at page 238] which is as follows:
36 "... ... After the grant is sanctioned, an appropriation bill is introduced to provide for the appropriation out of the consolidated fund of the State of all moneys required to meet the grants thus made by the assembly (Article 204). As soon as the appropriation Act is passed, the expenditure made under the heads covered by it would be deemed to be properly authorised by law under Article 266(3) of the Constitution.
... ... The expression "law" here obviously includes the appropriation Acts. It is true that the appropriation Acts cannot be said to give a direct legislative sanction to the trade activities themselves. But so long as the trade activities are carried on in pursuance of the policy which the executive Government has formulated with the tacit support of the majority in the legislature, no objection on the score of their not being sanctioned by specific legislative provision can possibly be raised. Objections could be raised only in regard to the expenditure of public funds for carrying on of the trade or business and to these the appropriation Acts would afford a complete answer."
29) It is clear that no independent enactment is required to be passed. As rightly pointed out, neither Government 37 of India nor any State is taking away the rights of anyone or going to set up any business or creating any monopoly for itself nor acquiring any property. It is only implementing a Scheme for the welfare of the people with the sanction and approval of the Parliament. We are satisfied that for the purpose of imposing restrictions on the rights conferred under Article 19 or Article 300A, there may be requirement of an independent law but not for the purposes of satisfying the requirement of Article 14.
It is worthwhile to reproduce the following passage from the above referred judgment:
"Specific legislation may indeed be necessary if the Government require certain powers in addition to what they possess under ordinary law in order to carry on the particular trade or business. Thus when it is necessary to encroach upon private rights in order to enable the Government to carry on their business, a specific legislation sanctioning such course would have to be passed."
Scope of Article 282 of the Constitution 30) Let us consider Article 282 which comes under the heading of `Miscellaneous Financial Provisions". Heavy 38 reliance was placed on this provision by Mr. G.E.
Vahanvati, learned amicus curiae and Mr. Mohan Parasaran, learned Additional Solicitor General. We have extracted Article 282 in the earlier part of the judgment. According to Mr. K.K. Venugopal learned senior counsel, appearing for the petitioner, Article 282 contemplates that the identification of a public purpose should precede the making of a grant because without such exercise being undertaken, no decision on the extent of the grant to be made can be taken. Under the MPLAD scheme, it was contended that the grant precedes the identification of the particular public purpose, and this is contrary to Article 282. It is also submitted that in the present case, the MPLAD scheme is a permanent Scheme for transfer of funds each year which can be done only under Article 275 of the Constitution while Article 282 is intended to meet an emergency or an unforeseen situation and it does not envisage a transfer of funds without any limit of time.
31) Mr. Prashant Bhushan, learned counsel appearing for the petitioners, submitted that a clear interpretation of the General Financial Provisions of the Constitution especially Articles 280 and 275 is that the Finance Commission, an independent body, has the mandate to recommend the division of taxes between the Centre and the 39 States and the assignment of Grants in Aid to the revenues of certain States. It is also argued that though the Constitution empowers the Finance Commission to distribute money between the Centre and the States, the power has been shifted to the Planning Commission, which was set up by a resolution of the Government of India in March 1950.
According to him, the Planning Commission has never received any parliamentary sanction and has still become an alternative authority to make regular grants given to the States, at the discretion of the Centre. It is pointed out that there is no provision in the Constitution for a body like the Planning Commission and it may be described as a quasi-political body, when compared to the statutory body like the Finance Commission, which is quite independent of the Government. It is further contended that the money being given through the impugned scheme is in clear violation of the specific scheme devised in the Constitution regarding the transfer of funds from the Centre to the States. Article 282, a "Miscellaneous Financial Provision" was added to be used only as an emergency provision. It is their claim that although the language of Article 282 appears to be wide enough to cover all grants, so long as they are for a public purpose, it obviously cannot be construed to mean that the Centre can 40 give grants to States on a regular basis. It was submitted that the regular grants from the Centre to the States can be given only under Article 275 and only in accordance with the Finance Commission's recommendations; that the power under Article 282 is interpreted as providing an alternative channel of regular transfers from the Centre to the States, it would disrupt the delicate fiscal equilibrium which the Finance Commission is expected to bring about through the regular channel under Article 275;
that the Constitution makers could not have intended to bring about such a disruption; that if Article 282 was intended to be a second channel for regular transfers from the Centre to the States then it should have found a place along with Articles 268 to 281 under the heading "Distribution of Revenues between the Union and States";
that the fact that Article 282 is separated from those Articles and put under a separate heading, "Miscellaneous Financial Provisions" shows that it is not intended to be used as a second channel of transfers from the Centre to the States. Moreover, a reference was also made to the marginal note on Article 282 "Expenditure defrayable by the Union or a State out of its revenues" to argue that it indicates that the expenditure to be met by the Union or a State to meet a particular situation provided that it is 41 for a public purpose. It is pointed out that any expansion of the scope of Article 282 would necessarily result in the corresponding abridgement of the scope of Article 275, which could not have been intended by the Constitution makers; and Article 282 permits the Centre and the States to incur expenditure even on subjects which are not within the legislative competence of the Centre or the States, as the case may be.
32) Under Article 73, the executive power of the Union to give grants extends to the matters with respect to which the Parliament has the power to make laws. This is an embargo on the Centre's power to give discretionary grants to the States and this embargo is lifted by the non- obstante clause in Article 282 whereby the Centre can give discretionary grants to the States even when it has no legislative power on the subject. It was argued that the lifting of the embargo clearly suggests that the power to give grants under Article 282 is an emergency power to be used in exceptional circumstances. In any case, according to the petitioners, Article 282 only allows money to be defrayed by the Central Government for a particular public purpose though they may fall under State subjects. It, however, does not authorize the Central Government to exercise its executive power on State subjects within the 42 States which is only allowed during an emergency under Article 353 of the Constitution. Therefore, it is contended that Article 282 can be used to transfer money/provide grants to States for use of particular public purposes which may be in the State list but cannot apply to a scheme like the MPLAD Scheme in which a Member of Parliament exercises executive power within the States on matters in the State list.
33) We have already extracted Article 282 and reading of the same makes it clear that our Constitution is not strictly federal and is only quasi-federal. This Court in paras 71 to 73 of the judgment in Kuldip Nayar & Ors. v.
Union of India & Ors., (2006) 7 SCC 1 held as under:
"71 But then, India is not a federal State in the traditional sense of the term. There can be no doubt as to the fact, and this is of utmost significance for purposes at hand, that in the context of India, the principle of federalism is not territory related. This is evident from the fact that India is not a true federation formed by agreement between various States and territorially it is open to the Central Government under Article 3 of the Constitution, not only to change the boundaries, but even to extinguish a State (State of West Bengal v. Union of India [1964] 1 SCR 371) . Further, when it comes to 43 exercising powers, they are weighed heavily in favour of the center, so much so that various descriptions have been used to describe India such as a pseudo-federation or quasi- federation in an amphibian form, etc."
"72 The Constitution provides for the bicameral legislature at the center. The House of the People is elected directly by the people. The Council of States is