UNCONSTITUTIONALITY OF MPLADS
Readers would recall that way back in 1999, Common Cause had challenged the Member of Parliament Local Area Development Scheme in the Supreme Court through Writ Petition No. 4040/1999. This petition has been clubbed with Writ Petition No. 376/2003 filed by Lok Sevak Sangh and other petitions challenging the scheme. The matter now stands referred to the Constitutional Bench of the Apex Court. Since Both Common Cause and Lok Sevah Sangh are being represented by Mr. Prashant Bhushan , a common written statement has been filed, bringing on record certain recent developments which underline the unconstitutionality of the scheme . The written submission is reproduced below. - Editor
WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS
1. The Petitioners have filed the present writ petition challenging the Member of Parliament Local Area
Development Scheme (MPLADS) as formulated by the Government. The Petitioners have also raised the issue of completely arbitrary and mala fide use of power by the MPs in allocating the work and using the funds under this scheme. The Petitioners are seeking the following prayers in the present writ petition:
a) direct the Respondents to scrap the MPLADS;
b) direct an impartial investigating agency to investigate and fix responsibility for the reported misuse
of the scheme and funds allocated for the scheme; and
c) direct the Respondents to take action against those officials guilty of dereliction of duty in the implementation of the scheme.
A. BACKGROUND OF MPLADS
2. On 23rd December, 1993, the then Prime Minister announced the MPLADS in Parliament. This scheme was formulated for enabling the M.P.s to identify small works of capital nature based on locally felt needs in their constituencies. Initially, under this scheme each M.P. could suggest works to the tune of Rs. 5 lakhs. During 1994-95, it was raised to One Crore per year per MP. From the year 1998-99, the funds of the MPLADS were increased to Rs. 2 Crores per year for each M.P. Up to October 1994, the Ministry of Rural Development and Planning was monitoring the scheme. At present, the Ministry of Statistics & Programme Implementation is the administrative Ministry for the MPLADS.
B. SOME OF THE SALIENT FEATURES OF THE SCHEME
3. 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. The Guidelines were further revised in February, 1997, September, 199, April, 2002 and November, 2005. Some of the salient features of the MPLADS as given in the Guidelines on MPLADS, are as follows:
• Each MP will give a choice of works to the concerned Head of the District who gets them
implemented,
• The Head of the District shall identify the agency through which a particular work recommended by
the MP should be executed,
• The work and the site selected for execution of the work by the MP shall not be changed, except
with the concurrence of the MP concerned.
• Where the District Authority considers that a recommended work cannot be executed for some reason, the District Authority shall inform the reasons to the MP concerned, within 45 days of the receipt of the proposal.
• The District Authority may sanction works as per the recommendation of the MP upto the full entitlement.
• If the estimated amount is for a work is more than the amount indicated by the MP for the same, MP’s further consent is necessary before the sanction is accorded.The work once recommended by the MP and sanctioned by the District Authority may be cancelled if so desired by the MP only, if the execution of the work has not commenced and the cancellation does not lead to any financial liability /contractual cost on the Government.
• The funds released by the Govt. of India under the scheme would be non-lapsable. Funds released
in a particular year, if they remain unutilized can be carried forward to the subsequent year without
detracting from the allocation of rupees two crores per year per constituency.
• The District Authority and Implementing Agency will maintain accounts of MPLADS, MPwise. District
Authority will furnish Utilisation Certificate every year to the State Government and the administrating
Ministry. These accounts and utilisation certificates will be audited by the Chartered Accountants or
the Local Fund Auditors or any statutory auditors. The audit report should be prepared MP wise. (It
would be pertinent here to mention that earlier, i.e. before the introduction of new guideline in 2005,
CAG used to audit the accounts of the Scheme.)
C. IRREGULARITIES AND UNCOSTITUTIONALITIES IN THE IMPLEMENTATION OF MPLADS CAG REPORT (2001)
4. Since the introduction of MPLADS in 1993, CAG has given two Audit Reports (1998 and 2001). As
mentioned above, now under the new guidelines CAG audit has been removed. CAG in its both the reports pointed out the innumerable irregularities and illegalities in MPLADS.
5. As per the report of the Comptroller and Auditor General of India for the year ended March 2000, since the inception of the scheme in 1993 till 2000, Rs. 5017.80 crores has been released against which Rs. 3221.21 crores have been spent. During the period from 1997-1998 to 1999-2000, the Ministry of Statistics & Programme Implementation released Rs. 2688 crores (84.43%) of the allotted budget provision of Rs. 3160 crores. From the inception of the scheme till the end of March 2000, 35.80% of the total releases by the Ministry amounting to Rs. 1956.79 crores remained unspent with the District Collectors (DCs) and the implementing agencies.
6. Some of the other findings of the CAG report (2001) are as follows:
• Even after seven years of the operation of the scheme the Ministry did not have a suitable accounting
procedure. This was a contributory factor in its financial administration.
• The scheme guidelines contain contradictory provisions. One provision related to the release of installments to the actual progress in expenditure and execution of works, while another provision related it to funds sanctioned by the District Collectors to the implementing agencies. The Ministry continued to sanction funds based on the amounts sanctioned by the District Collectors, regardless of actual utilisation. Consequently, there were large unspent balances with the implementing agencies.
• The Ministry did no submit any Action Taken Notes to the CAG’s Audit Report of 1998 on the scheme. Many irregularities pointed out not only persisted but actually worsened. Some of these were:
- The implementing agencies did not submit the utilisation certificates to the District Collectors;
- They did not refund unspent balance;
- There was misreporting of the financial progress of works by them;
- They irregularly clubbed the scheme funds with the other schemes;
- Diverted funds to inadmissible purpose;
- There were executions of inadmissible works;
- The District Collectors sanctioned works for commercial and private organizations, for repairs and maintenance works and on places of religious worship;
- There were unauthorized purchases of stores & stock items;
- District Collectors sanctioned and executed the works without the recommendation of the MPs, without technical sanction and administrative approval;
- The nodal agencies did not maintain any asset records.
• There were cases of irregular award of contracts as also deficient execution of works. There were instances of excess expenditure, excess payment, overpayments to contractors, wasteful expenditure, miscellaneous irregularities in purchases, abandonment of works, execution of petty works, irregular payment of supervisions and cent age charges, frauds and misappropriation.
• The Ministry of Statistics and Programme Implementation, who administer the scheme and are responsible for its monitoring and evaluation, admitted that they were not in a position to effectively monitor the scheme at the operational level. In fact the Ministry did not have any picture of works under implementation and quoted the Committee of Secretaries decisions that central monitoring of large number of works was neither practicable nor desirable.
The CAG in its final comment says;
“In consideration of the various persistent instances of poor administration of the scheme, involving wastages, idling of funds, irregular and inadmissible expenditure and frauds highlighted in this and the earlier 1998 Report of the CAG, the Central Government needs to re-evaluate the need, manner and modality of resource transfer under the scheme as at present.”
7. Some of the instances of irregularities mentioned above are shown in terms of Rupees (as per the CAG report 2001) in tabular form (by conducting random audit of 241 constituencies out of 786):
Sl. No. Particulars Amount Rs.
1. Utilisation Certificates not obtained by DCs (Annex III of the CAG report) 161.74 crores
2. Non-refunding of the unspent balance by the Implementing Agencies
(Annex IV of the CAG report) 1072.26 lakhs
3. Misreporting of Financial Progress by DCs 82.06 Corroes
(Annex V of the CAG Report 2000)
4. Irregularly clubbing MPLADS funds with other schemes 321.15 lakhs
(Annex VI of the CAG Report 2000)
5. Irregular Diversion of Funds to inadmissible purpose 1832.90 lakhs
(Annex VII of the CAG Report 2000)
6. Execution of Inadmissible Works(Annex VIII of the CAG Report 2000) 478.30 lakhs
7. Sanction of works for Commercial & Pvt. Organisations 916.13. lakhs
(Annex IX of the CAG report 2000)
8. Irregular Sanction of Repair and Maintenance Works 2659.05 lakhs
(Annex X of the CAG Report 2000)
9. Purchase of Stores out of the MPLADS fund 546.19 lakhs
(Annex XI of the CAG Report 2000)
10. Irregular sanction of Works on Pvt. Land 185.32 lakhs
(Annex XII of the CAG Report 2000)
11. Other inadmissible works (Annex XIII of the CAG report 2000) 460.19 lakhs
12. Irregular Sanction of Loans, Grants and Donations 81.45 lakhs
(Annex XIV of the CAG Report 2000)
8. The CAG in its report concluded in the following manner:
“This review covering the period 1997-2000, was in the nature of updation of the findings of the previous review of the Comptroller and Auditor General on the subject covering the period 1993-1997. The findings of the present review point out of the fact that the implementation of the scheme has become worse during the years 1997-2000 as evidenced by the low utilisation (64.2 per cent) of the released funds and a very poor record of completion of the works as revealed in test check according to which percentage of completed works came down from 56.13 (as per the 1998 report) to 39.22. In other words even the 64.2 per cent utilized expenditure has not yielded commensurate assets. Added to this are significant percentage of irregular and inadmissible works that were detected in test audit. If these are reckoned, the real utilisation figures will be much lower. Overall, the audit findings reveal failures: in operationalising the MPLADS; in meeting its stated objectives; in conforming to the prescription of the scheme by the MPs at the recommendation stage and by the District Officers at the execution stage; and, last but not the least, admitted failure of the Ministry to effectively administer and monitor the scheme. In summary, in the present form, the scheme, which is in operation since December 1993 has hardly served its main objectives. In view of these findings and the findings of the 1998 audit report, the Central Government needs to have a thorough review of the present arrangements for the implementation of the scheme. Such a review should cover the present manner of resource transfer along with the technical and administrative arrangements.”
REPORT OF PROGRAMME EVALUATION ORGANIZATION OF THE PLANNING COMMISSION, NOVEMBER 2001
9. The Audit Report 1998 stressed the need for the evaluation on the working and the progress of implementation of the MPLADS. Need for evaluation of the working of the Scheme was reiterated by the Audit Report 2001. Accordingly, the Ministry of Statistics and Programme Implementation made arrangements with the Programme Evaluation Organization of the Planning Commission to undertake a
study to evaluate the design, implementation and impact of the schemes and to identify the areas of
weakness and strength for the improved performance of the scheme. The Evaluation Team launched the study in April 2000 and submitted its report in November 2001. Some of the finding of the said report as given in Era Sezhiyan’s book published by Institute of Social Science titled, ‘MPLADS Concept, Confusion, Contradictions’ are reproduced herein below:
“Although the cost-estimates of a work recommended by the MP should have been worked out at the
time of sanctioning of the work, the Evaluation Team found:
“Cost estimates are prepared afterwards and perhaps, made to conform to the amount allocated by the MP. Consequently many of the works are either completed by supplementing the fund allocated by the MP by fund procured from other sources or compromising the quality of assets created.” (Para 3.9)
“Both CAG and this evaluation team found financial mismanagement of the Scheme and consequent inflated reporting of amount spent. If these are taken into account the percentage utilization of the fund will be much lower than what is being officially reported.” (Para 3.10) Apart from the non-maintenance of a satisfactory accounting system for the Scheme, there was no monitoring about the expenses actually incurred and the state of completion. In this regard, the Report observed:
“It seems that in a large number of cases once the work is recommended, sanctioned and fund released, nobody kept track of the progress. Such status not known works are largest in number among those classified under Drinking water and sanitation followed by Roads and bridges. The evaluation team during their field visits failed to locate quite a few of the assets claimed to have been created in these sectors. Such cases, largely a consequence of weak monitoring, perhaps encourage various types of irregularities to thrive.” (Para 3.5)
“The Evaluation Team found that there was a tendency on the part of several Rajya Sabha MPs to recommend works in a particular district in addition to those by the Lok Sabha MP(s) in the same District. This has caused a disproportionately large amount of money being invested in these districts out of MPLADS Fund alone….About the uneven distribution of works and their benefits, the Evaluation Report stated:
“A disproportionately large amount of money is flowing into these districts out of MPLADS funds leading to such an undesirable situation. The choices of the areas of works have become very much distorted and unequally distributed. Apart from an uneven distribution of works across the districts, this increases the workload for the Collectors and the field officials leading to weak monitoring and supervision. Many of these districts are not among the less developed ones in the country/State.”
REPORT OF THE NATIONAL COMMISSION TO REVIEW THE WORKING OF THE CONSTITUTION (2002)
10. The report of the National Commission to Review the Working of the Constitution (2002), which was headed by former Chief Justice M. N. Venkatachaliah, also recommended the discontinuance of the MPLAD scheme. The Commission was of the opinion that these schemes militate against the principle of demarcation of responsibilities between the legislative and the executive, as they involve the legislators in the exercise of executive powers. According to the Commission, “the MPLAD scheme is inconsistent with the spirit of federalism and distribution of powers between the union and sates. It also treads into the areas of local government institutions. The commission recommends immediate discontinuance of the MPLAD scheme as being inconsistent with the spirit of the constitution in many ways.” RECOMMENDATION OF THE NATIONAL ADVISORY COUNCIL
12. The National Advisory Council (NAC) set up by the government in 2005 also recommended the discontinuance of MPLADS. It said, “The MPLADS scheme is implemented through district collectors. Ideally, local area development needs should be determined and interventions made by the elected local governments. Therefore, MPLADS scheme should be dispensed with, and these funds should directly go to Panchayats and Municipalities for the same purposes.”
NEW GUIDELINES WORSEN MPLAD SCHEME
13. The Guidelines for MPLADS were revised in 2005 to take into account the suggestions made by Rajya Sabha and Lok Sabha Committees on MPLADS, observations of CAG, Programme Evaluation Organization of the Planning Commission and operational experience over the years. It is submitted that new guidelines, instead of plugging the loopholes, have worsen the Scheme. Mr. Era Sezhiyan had written another article on new guidelines which was published in Mainstream dated 15th April, 2006. Some of the points raised in the said article are as follows:
No Auditing from CAG
“The foremost objectionable part of the New Guidelines is removal of the CAG Audit in respect of the
Scheme funds….
This suspicious attempt to remove the CAG Audit on the accounts of the Scheme is unconstitutional and cuts at the very base of accountability of the executive to Parliament. …Sec. 13 of the Act provides that it shall be the “duty of the Comptroller and Auditor-General to audit all expenditure from the Consolidated Fund of India and of each State and of each Union territory.” Art. 151 of the Constitution states: “(1) the reports of the Comptroller and Auditor-General of India relating to the accounts of the Union shall be submitted to the President, who shall cause them to be laid before each House of Parliament.”
Further, Guidelines 5.5 states that the Audit Report should be prepared MP-wise. This provides that the auditors appointed will audit the accounts maintained by District Authorities. There are 593 Districts in India and each Lok Sabha Member can choose one District whereas a Rajya Sabha Member may suggest one or more Districts in the state of his election. Nominated members may recommend works in one or more Districts anywhere in the country. Even if we take it that a Rajya Sabha Member or a Nominated Member may recommendworks in at least four Districts on an average, the total number of accounts to be maintained for the Rajya Sabha and Nominated Members will come to more that 1000. If we add the number of elected LS Members, the number of accounts to be audited in all will be above 1500.
Thus, the New Guidelines will introduce more than 1500 auditors, not within the purview of the CAG, to audit the Scheme accounts, replacing the constitutional requirement of public audit.
Nodal Ministry not in a position to monitor the Scheme
As per the General Financial Rule 65 (1), the nodal Ministry on whose behalf a grant is given by Parliament is fully “responsible for the control of expenditure against the sanctioned grants and appropriations placed at its disposal.”
The Evaluation Team of the Planning Commission confirmed on direct field survey the observation of the 2001 Audit report in this regard: “Ministry of Statistics and Program implementation who administer the Scheme and are responsible for its monitoring and its evaluation, admitted that they were not in a position to effectively monitor the scheme at the operational level.”
No Parliamentary control over contingency expenditure
Para 4.17 of the new Guidelines allows that the District Authority to utilize 0.5% of the amount spent
under the Scheme in the year as ‘contingency expenses’ on stationary, office equipment, telephone, fax, postal charges, monitoring expenses and to get audit certificate and audit of the accounts. Under this provision contingency expenses for each MP per year will be Rs. 1 lakh and a total of Rs. 7.9 crores will be at the disposal at the District Authorities.
It is to be seen whether the CAG was consulted in creating such contingency expenses and placing them at the disposal of the District Authority. In the absence of an accounting system with the approval and audit of the CAG, Parliament cannot have any control over the expenditures incurred by the District Authorities and implementing agencies.
Limitations on the cost and nature of works to be executed, which were in the earlier guidelines, removed
“At the time of announcement of the Scheme on December 23, 1983, Prime Minister Narasimha Rao put certain limitations on the cost and nature of works to be executed under the Scheme. It was stated: “The Scheme was for developmental works of small nature” and that “each work under the Scheme shall not exceed Rs. 10 lakh.” An illustrated list of small works permissible was also then given.
The Guidelines of December 1994 added another list of non-permissible works under the Scheme. Alterations were made several times in these two lists….The new Guidelines of November 2005 have deleted the illustrative list of permissible works. Para 2.4 of the New Guidelines allows sanction of all works ‘except those prohibited’ in the list of non-permissible works.
The limit of Rs. 10 lakh for each work was later raised to Rs. 25 lakh. However, requests from Members
for works costing more than Rs. 25 lakh were placed for consideration and approval of the MPLADS Committee of the House concerned. The New Guidelines remove this limit of Rs. 25 lakh per work.
A member can now recommend at his discretion a work costing up to Rs. 1.99 crore (excluding the contingency expenses) in one lump sanction.
Scheme funds are sent directly to the District head even though the funds are sanctioned as ‘part of the Central Assistance for State Plans’
“The funds to the Centrally sponsored schemes are normally routed through the State Governments and implemented through the District Planning Centers. The MPs, MLAs and the representatives of the Panchayati Raj Institutions are in the DPC. In fact, the first set of Guidelines of the Scheme formulated in April 1994 by the Ministry of Rural Development contained procedures to coordinate the works under the Scheme with other Centrally sponsored and central sector programmes operating within the District.
However, when a new set of Guidelines were prepared in 1994 December after transfer of the Scheme to the Ministry of Statistics and Programme Implementation, the procedure of involving the District Planning Committee and the Panchayati Raj Institutions was completely deleted and the recommendation of the MP was directly dealt by the Collector without any determination of priorities and coordination with other Schemes in the District.
Many of the works to be undertaken under the Scheme are from the items included in the 11th and 12th Schedule for the Panchayati Raj Institutions
Though the November 2005 Guidelines has removed the list of permissible works under the Scheme, they have still indicated the types of works to be undertaken under the Scheme. Para 2.4 of the Guidelines states: “MP may choose some works for creation of durable assets if national priorities namely drinking water, education, public health, sanitation, and roads under the Scheme.” All these items are included in the eleventh Schedule and the Twelfth Schedule of the Constitution for the Panchayati Raj Institutions.
REPORT OF THE SECOND ADMINISTRATIVE REFORMS COMMISSION, JANUARY, 2007
13. With regard to the unconstitutionality of the MPLADS scheme, the recommendations of the Second Administrative Reforms Commission (ARC) are particularly relevant. The Second ARC has recommended the abolition of the MPLADS and Members of Legislative Assembly Local Area Development Scheme (MLALADS) because “these schemes seriously erode the notion of separation of powers, as the legislator directly becomes the executive.” The Commission considers the exercise of discretionary powers by legislators to sanction or approve public works clearly as an executive function, whether or not the government appoints the legislators to a designated office. Therefore, “the use of discretionary funds at the disposal of legislators, the power to determine specific projects and schemes or select the beneficiaries or authorize expenditure shall constitute discharge of executive functions and will invite disqualification under articles 102 and 19 (of the Constitution), irrespective of whether or not a new office is notified or held.”
MPLADS IS UNCOSTITUTIONAL
14. In this context, it would be appropriate to refer to an article by Era Sezhiyan, former Chairman, Public Accounts Committee of Parliament and Senior Fellow of Institute of Social Sciences, New Delhi, published in ‘The Hindu’ dated 24th April 2003. The article, apart from giving details of irregularities and the comment on the report of CAG, also gives an insight how the scheme is contradictory to the constitutional provisions and the general financial rules. The relevant extract of the article is reproduced below:
“To say the least, the management of the scheme is a shambles. The accounting process is abominably anarchic. Some guidelines are blatantly contradictory to the constitutional provisions and general financial rules. There is a clear guideline that the funds released under the scheme are non-lapsable: it means that funds unutilized in a particular year can be carried forward to the succeeding years.”
“Under Article 112 of the Constitution, the annual financial statement, popularly known as the budget,
presents the estimated receipt and expenditure of the government. After the grants are approved and the Appropriation Bill is passed by the Parliament, the Government is empowered to draw from the
Consolidated Fund monies not exceeding the amount sanctioned. The grants sanctioned by the Parliament are valid only for the financial year. The general financial rule No. 64 states: any unspent amount is not available for utilisation in the following year.”
To further quote:
“Nothing will be more incredible than the Secretary in administrative charge of the Ministry disowning the basic responsibility in administration of the grants placed at the disposal of his Ministry. Financial rule 65(1) reads: that the Department of the Central Government administratively concerned or the authority on whose behalf a grant of appropriation is authorized by Parliament shall be responsible for the control of expenditure against the sanctioned grants and appropriations placed at its disposal and shall exercise control through the Heads of Department and other controlling officers, if any, and disbursing officers subordinate to him.”
In his article, Mr. Era Sezhiyan has further recommended that;
“there should be effective decentralization of the planning process starting from the District Planning Board where MPs, MLAs and Heads of the District, Block and Panchayati Raj Institutions should be involved in the formulation of planning and supervision of the projects chosen. The MPLADS has only served the purpose of diverting the attention of MPs from the failures of planning and administrative performance at all levels, and to confine the attention to some small schemes restricted to individual constituencies. The Government’s disowning of responsibility for the works under their scheme and the involvement of MPs in the administrative system, thereby weakening the capability to ensure the accountability of the executives to Parliament, cuts at the very roots of the Parliamentary System of Democracy in the country.”
GROUNDS FOR DECLARING MPLADS UNCONSTITUTIONAL
(i) It erodes the system of checks and balances:
The Constitution of India has adopted Parliamentary system of governance.
The cardinal premise of a parliamentary democracy, as also enshrined in our Constitution, is that the legislature legislates and gives sanctions, but it is the executive which implements those policies and programmes while rendering full account of its action, plans and programmes to the Parliament regularly. The Parliament is not meant to govern, but to control the government. In Ram Jawaya Kapur vs. State of Punjab, AIR 1955 SC 549, the Hon’ble Supreme Court has categorically held that “In India, as in England, the executive has to act subject to the control of the legislature..” Further, in Indira Nehru Gandhi vs. Raj Narain, (1975) Supp. SCC 1, it has been held by this Hon’ble Court that ‘separation of power’ is the basic structure of the Constitution. It is in this background, Era Sezhiyan’s book titled, ‘MPLADS Concept, Confusion, Contradictions’ states, “The concept of the MPLAD Scheme to place certain annual grants at the discretion of each Member of Parliament to choose small works for implementation in their respective constituencies has done irreparable damage to role of Members of Parliament in the parliamentary system.” By making the legislature a partner in the functioning of the executive, the MPLADS erodes the check, which the legislature is supposed to exercise over the executive. The legislature has been provided with the task normally done by the executive in our present form of Parliamentary Democracy. This overlapping of functions is clearly in violation of the constitutional mandate. If the Parliament, which is supposed to keep a check on the Executive, is entrusted with executive tasks, then it will not be possible for them to monitor and keep a proper check on the executive. This will erode the whole system of checks and balances and fair accountability, which will be detrimental to the progress and functioning of the country as a whole.
(II) It offends the spirit and object of 73rd and 74th Amendment of the Constitution which provides for local self governance
The prime object of the 73rd and 74th Constitutional Amendments was to move towards decentralization of the governance by envisaging panchayats and municipalities as institutions of self government. The 11th Schedule (Article 243 G) and 12th Schedule (article 243W) contain the list of 47 subjects which are related to programmes and works to be done by the Panchayats and Municipalities. Ironically, most of the Schemes being funded and executed under the MPLADS are not from the Union list at all, instead they are part of the 11th and 12th Schedules of the Constitution. MPLADS is a central government grant released directly to the District Collector and is completely out of bounds of the Panchayati Raj Institutions. The allocations for MPs under the MPLADS are financed out of the public exchequer and divert funds which would otherwise be available to the local bodies. To quote from the Consultation Paper of the National Commission to Review the Working of the Constitution as extracted in the aforementioned book of Era Sezhiyan, “MPs and MLAs exercising their personal choice and decision in funding and executing the scheme is an usurpation of the power and responsibilities of the Panchayats and Municipalities….In many instances the choice of schemes and the amounts expected can significantly alter or distort local priorities as may be desired or decided by the Panchayats and the Municipalities. However, they may be helpless to rectify the situation, as their own fund may be very limited in comparison to what an MP or an MLA can bring as largesse.”
(III) It results in discrimination between the sections of societies in allocation of the work and
hence, violation of Article 14 of the Constitution:
The powers exercised or enjoyed by the MPs by virtue of MPLADS results in discrimination in allocating the work, thus resulting in violation of Article 14 of the Constitution. The MPs under this scheme can allocate projects and work in any one particular area to the benefit of a particular section of the society and neglect other areas or sections of the society if the said areas or sections are not politically favourable to him. To quote from Era Sezhiyan’s book titled, ‘MPLADS Concept, Confusion, Contradictions’ “When the MP is given full discretion and annual grants at his disposal, he will be eager to undertake works to satisfy the voters in his constituency. However, he will be inclined, more often, to give preference to the demands of those who are politically favourable to him or likely to be favourable to him and his party in the elections. The fact of discretionary us of the public funds for the selected voters favourable to the MP has been brought by the Evaluation Report if the Planning Commission: “Small group having easy access to the MP at times may impress upon him to recommend works according to their felt needs, consequently the felt need of many others may get overlooked.” Such a scheme is therefore discriminatory and violative of Article 14 of the Constitution.
(IV) It gives an unfair advantage to the incumbent MPs/MLAs over their rival candidates in elections:
The scheme in the present form gives an unfair advantage to the incumbent candidates over their rivals, in as much as it gives a huge amount of discretionary funds in the hands of the incumbent candidates which they can use as they please. To quote from Era Sezhiyan’s book titled, ‘MPLADS Concept, Confusion, Contradictions’ “The political bias caused by the MPLAD Scheme is obvious by the fact that the Lok Sabha MP has the discretion to spend Rs. 10 crore during his term of 5 years and to gain the appreciation and support of his constituents. To control the use of money power in the elections, the election law has set limits to the election expenses at Rs. 1 crore for a candidate in LokSabah elections and Rs. 50 lakhs for an Assembly candidate in a state. However, a sitting Member in a Lok Sabha Consittuentcy for a term of five years has already spent Rs. 10 crore in the constituency at his discretion and in free choice of sites and works. This surely creates a political bias and an electoral advantage in favour of a sitting MP over other candidates who have not the benefit of any public fund spent during or before the election. Though, the public fund under the Scheme may not have been spent for the personal benefit of the Member, still it is a misuse of public funds not for the public purpose for which it was granted by Parliament. As the Law Lords observed in the Porter v Magill case, “It was a misuse of power not for the purpose of financial gain, but for that if electoral advantage. In the sense, it was corrupt.””
(V) It is being implemented in violation of several financial rules:
MPLADS is being implemented in violation of several financial rules, particularly, Rule 64 of the general financial rules, which provides that any unspent amount is not available for utilisation in the following year and Rule 65 (1) which provides that the Secretary of the Ministry in charge will be responsible for the control of expenditure against the sanctioned grants. As apparent from the above, in the present scheme, the funds are non-lapsable and unspent funds can be used for the next financial year. In this scheme, normally Heads of District are responsible for the control of expenditure against the sanctioned grants. Moreover, if some of the MPs are not utilising their funds for the local development and the funds are just lying idle and accumulating (as they are nonlapsable) then the MPLADS is hardly serving its objective.
In view of the above-mentioned facts, it is submitted that the present writ petition should be allowed in terms of its prayers.
THROUGH
(PRASHANT BHUSHAN)
COUNSEL FOR THE PETITIONERS
