JUDGMENT
A.L. Dave, J.
1. These two matters are placed before this Larger Bench, by virtue of an order passed by Hon’ble the Acting Chief Justice, on 19th June,2003, following an order passed by the learned Single Judge of this Court, on 8th October,2001 in these matters, referring the matters to Division Bench / Larger Bench.
2. These petitions are filed under Articles 226 and 227 of the Constitution of India for a Writ of mandamus or direction for quashing and setting aside Notification dated 3rd April,2001, issued by the State of Gujarat under Section 7 of the Gujarat Panchayat Act,1993 (hereinafter referred to as “the New Act”). Under the said Notification, the State Government excluded the local area of Govindpura from existing area of Veda Gram Panchayat. By the said Notification, the State Government created new areas of Veda and Govindpura Gram Panchayatas comprising of local areas of Veda (Revenue Village) and Govindpura (Petapara). A challenge is also made to Notification dated 16th April,2001 issued by the District Development Officer, Gandhinagar, by which the Government has deprived Veda (Govindpura Gram Panchayat) and Kalol Taluka of Gandhinagar District and created Veda and Govindpura, two separate Villages and also appointed Administrator.
3. In order that the points under Reference and the contentions in Reference thereto can be better appreciated, certain facts in backdrop of which issues have arisen, need to be stated :
3.1 The State of Gujarat issued a Notification on 23rd May,1984 in exercise of powers under Section 9 of the Gujarat Panchayat Act,1961 ( hereinafter referred to as “the Old Act”) of which the area covered by Govindpura was excluded from Veda Gram Panchayat and a separate Gram Panchayat was declared in respect of the excluded area of Govindpura. This resulted into filing of Special Civil Application No.3322 of 1984 before this Court by Veda Gram Panchayat challenging the said Notification. The said petition was rejected by learned Single Judge of this Court by order dated 5th July,1984. Aggrieved by the said order, Letters Patent Appeal No.290 of 1984 was preferred and the Division Bench of this Court dismissed the said Letters Patent Appeal by order dated 20th July,1984. While dismissing the Letters Patent Appeal, the Division Bench observed that, “the Panchayat can bring their grievances or complaints before the Competent Authority and there is nothing in law or logic to take away their right to re-consider the above decision”.
3.2 Thereafter, the Development Commissioner passed an order on 24th October,1984, by which, it was held that earlier division of the Group Panchayat into two Panchayats required re-consideration and the bifurcation of these two Panchayats should not be made, and these two villages should continue to be governed by the common Group Panchayat and enjoy common set of facilities jointly as was the case in past. Being aggrieved by the said Notification, resident of Village Govindpura preferred Special Civil Application No.5539 of 1984 in this Court, where learned Single Judge rejected the said petition by order dated 29th January,1985. The Letters Patent Appeal bearing No.46 of 1985 was preferred against that order, which was also dismissed vide order dated 14th February,1985.
3.3 Thus, the decision of the Government to bifurcate the area taken and effected earlier was challenged on judicial side and the decision was upheld. However, the said decision was reviewed subsequently and bifurcation was cancelled. That decision was also challenged on judicial side and that was also not entertained and confirmed by the Court, and both the Panchayats continued as a Group Panchayats till 1996. When in the year 1996, the State Government consulted the Gram Panchayats on 1.1.1996, 9.1.1996 and 7.3.1996 and thereafter, the State Government by order dated 9th October,1998 decided not to bifurcate Veda Gram Panchayat and informed the Development Commissioner in this behalf.
However, subsequently on 13th June,1997, the Government issued a Notification in exercise of powers under Section 7 of the New Act after consultation with the concerned Village Panchayat and Taluka Panchayat and excluded local area of Himmatpura from the local area of existing village of Veda and after exclusion of the said areas, specified the new villages Veda and Himmatpura.
3.4 The controversy arose when the Government has decided to review its previous decision dated 9th October,1998 (not to bifurcate Veda Gram Panchayat) and deemed it necessary to bifurcate Veda Gram Panchayat and create two villages – Veda and Govindpura Gram Panchayats, and issued Notification dated 3rd April,2001. As a result of which Special Civil Application No.2804 of 2001 came to be preferred by the Sarpanch of Veda Gram Panchayat, seeking following reliefs :
(A) Be pleased to allow this petition.
(B) Be pleased to issue a writ of mandamus or any other writ or direction or order in the nature of the writ quashing and setting aside the impugned notification vide Annexure-A dated3.4.2001, as well as dated 16.4.2001.
(C) Be pleased to issue the writ of mandamus or any other writ or order or direction in the nature of the writ, restraining the respondents from execution, operation and further implementation of the notifications vide Annexure-A Collectively pending hearing, admission and final disposal of this petition.
(D) Be pleased to grant any other relief which deems fit and proper in the interest of justice.
3.5 Special Civil Application No.4597 of 2001 is preferred by Gunvantbhai B.Mehta, who happens to be an elected Deputy Sarpanch of Veda and Govindpura Gram Panchayats, seeking following reliefs :
(A) Be pleased to allow this petition.
(B) Be pleased to issue a writ of mandamus or any other writ or direction or order in the nature of the writ quashing and setting aside the impugned notification vide Annexure-A dated 3.4.2001 as well as dated 16.4.2001.
(C) Be pleased to issue the writ of mandamus or any other writ or order or direction in the nature of writ or order or direction in the nature of writ, restraining the respondents from execution, operation and further implementation of the notification vide Annexure-A Collectively pending hearing, admission and final disposal of this petition.
(D) Be pleased to direct the respondents to give the Charge to the Elected Body of the Veda Govindpura Gram Panchayat pending admission, hearing and final disposal of the present petition.
(E) Be pleased to grant any other relief which deems fit and proper in the interest of justice.
3.6 Learned Single Judge, before whom, these two petitions were placed, after dealing with the back ground of the matters, the controversy and the issues involved in the matters and the legal propositions emerging from various judicial pronouncements, found that the Government has initially consulted a necessary Taluka Panchayats and Gram Panchayats and taken a decision not to bifurcate the village. Thereafter, the Government took a decision to bifurcate the villages without fresh consultation and therefore, it would be necessary to decide the scope of review in such a matter and to consider whether Government can issue Notification without again consulting Taluka Panchayats and Gram Panchayats. Learned Single Judge also found that it will have to be considered whether in light of various judicial pronouncements whether it would be necessary to issue a fresh consultation in this behalf. He, therefore, directed the Office to place the matter before the Hon’ble the Chief Justice, so that the matters can be placed before the appropriate Court for considering the points.
3.7 In the order the learned Single Judge made reference to the decision rendered by three different Division Benches in three different cases viz. (i) Kalubhai Keshrisingh Vs. State of Gujarat and others,1965 (6) GLR 459 (ii) Nathabhai M. Patel Vs. State of Gujarat, 1993 (2) GLR 992 and (iii) Likhi Group Gram Panchayat Vs. State of Gujarat, 2001 (1) GLR 827 and held that ratio decidendi of Nathabhai’s case is really in conflict with the ratio decidendi in case of Likhi Group Gram Panchayat. Thus, from the order of the learned Single Judge, following points arise for our consideration :
(i) What meaning could be attributed to term “Consultation” after due consideration of Kalubhai’s case, Nathabhai’s case and the case of Likhi Group Gram Panchayat (supra), and the case of Chhani Nagar Panchayat and Another Vs. State of Gujarat, 2000 (2) GLR 1263 ?
(ii) Whether there is any conflict between ratio decidendi settled in Nathabhai’s case and in the case of Likhi Group Gram Panchayat ?
(ii) Whether the Government, after taking a decision on the issue of bifurcation after due consultation, can again issue a Notification without fresh consultation of the Taluka Panchayats and Village Panchayats or whether the Government will have to undertake the exercise of fresh consultation ?
4. We have heard learned advocates Mr.Anant Dave and Mr.B.M.Mangukia and learned Government Pleader Mr.A.D.Oza.
5. Learned Advocate Mr.Dave for the petitioner submitted that in the affidavit of the Government, it is stated that consultation has been made with the Gram Panchayats, Taluka Panchayats and District Panchayatas in the year 1996. It also emerges from the affidavit-in-reply that a decision was taken on 9th October,1998 to reject the proposal for bifurcation of the said Panchayat, as all the three Panchayats did not agree for bifurcation. Mr. Dave submitted that the said decision was taken for re-consideration and ultimately, Notification dated 3rd April,2001 came to be issued after 2 and 1/2 years, and there was no consultation after the decision not to bifurcate was taken on 9th October,1998. He, therefore, submitted that the mandatory exercise of consultation having not been complied with, the Notification of bifurcation of Panchayats cannot be permitted to stand. Mr.Dave submitted that as such there is no conflict in the decision, reference to which has been made by the learned Single Judge in the order, except that in the case of Likhi Group Gram Panchayat. In the facts and circumstances of the case, it was observed that as time lag was too short, fresh consultation would not have made any difference. Otherwise, the consultation is a must and that having not been done, the Notification would stand vitiated.
6. Learned Advocate Mr.Mangukia submitted that there is no conflict in the judgments, but, factually following the Notifications, elections were held and Govindpura Gram Panchayat has come into existence which is governed by the elected body. Although, he conceded to the fact that people of Veda Village boycotted election and therefore, an Administrator is running the Panchayat.
7. Learned Government Pleader Mr.Oza submitted that in the case of Likhi Group Gram Panchayat, there is no reference to Nathabhai’s case, but, that by itself would not bring any conflict between the ratio laid down in the aforesaid cases, presumably, because fresh consultation was not an issue before the Division Bench which decided Nathabhai’s case. He submitted further that from the tenor of the Notification date 3rd April,2001 it is clear that before issuance of the said Notification, there was a consultation made with the Village Panchayat, Taluka Panchayat and District Panchayat concerned. He submitted that in affidavit-in-reply of the State Government in Special Civil Application No.2804 of 2001, it is categorically stated that decision taken previously by the State of Gujarat on 9th October,1998 was taken into consideration and thereupon, it was found necessary by the State of Gujarat to bifurcate Veda Gram Panchayat (Govindpura Gram Panchayat) and therefore, it was decided to bifurcate Veda Gram Panchayat (Govindpura Gram Panchayat), whereupon the Notification was issued on 3rd April,2001. He further submitted that there is no denial on part of the petitioners when there was consultation with the Gram Panchayat, but, all that is said, all the three Gram Panchayats did not agree for bifurcation and that there was no effective and meaningful consultation. He submitted that in other words, there is a tacit admission on part of the petitioner that there was a consultation by the State Government with Gram Panchayat. In these circumstances, he submitted that points may be answered accordingly.
8. We have given a thoughtful consideration to the contentions raised before us. The following factual scenario remains undisputed. In the year 1984-1985, the process for bifurcation of the Panchayat started and a decision was taken to bifurcate the Panchayat. The said decision was challenged before the High Court, but, was upheld by the High Court, both in Special Civil Application as well as in Letters Patent Appeal. However, at a later point of time, somewhere in 1986, the said decision was reviewed and revoked and the bifurcated Panchayats were re-united.
8.1 Again, in the year 1996, a proposal was made, followed by a consultation for bifurcation and in the year 1998, a decision was taken not to accept the proposal and not to bifurcate the Panchayats. Subsequent thereto, the said decision was reviewed and impugned Notification was passed bifurcating the Panchayats. Admittedly, after the consultation in 1996 and decision in 1998 not to bifurcate the Panchayats, there was no fresh consultation. Thus, while the Notification was issued, the exercise of consultation as contemplated under Section 7(2) of the New Act was not followed.
9. The reference order culminates into three material questions, as narrated above. The question that would be required to be dealt with, first, would be what meaning can be attributed to term ‘Consultation’. In this regard, the decision in the case of Union of India Vs. Sakalchand S. Sheth and Another, AIR 1977 SC 2328 and Baldevsingh Vs. State of Himachal Pradesh, AIR 1977 SC 1239, followed by observations in the case of Bhalod Gram Panchayat Vs. State of Gujarat,1986 (1) GLR 247 would be relevant. The Apex Court has observed in the case of Sakalchand (Supra) that, “the term ‘Consultation’ means full and effective and not formal or unproductive consultation”. The term used is consultation and not concurrence or consent which are not synonyms to each other, and operate differently. For an important that the consultation has to be meaningful and not formal. In the case of Nathabhai (Supra), this Court observed that, “for making consultation effective and clear, the Government ought to have disclosed a new material to the Panchayats and ascertained its view thereon, and thereafter held that as no result has been pointed out for not doing so, and because it does not point out that if the action of the Government is regarded invalid, it would be prejudicial to the public interest. The action of the Government was arbitrary and liable to be declared as invalid”. We are also of the view that when the statute requires an Authority to consult before taking action, the consultation should not be a mere formality, but must be genuine and meaningful, then only the object of incorporation of this cause in the statute by the makers of law would be fulfilled, particularly in the case before us the consultation would enable the authority to understand and evaluate the implications of the proposed stage on a section of Society which is likely to be affected. The authority would know their point of view which would assist it in evaluating or judging the situation and take decision in the best interest of the society.
10. The next point that is required to be considered by us is whether there is any conflict between the ratio decidendi emerging from Nathabhai’s case and from the case of Likhi Group of Gram Panchayat.
10.1 We have given a close scrutiny to both the cases. In the case of Nathabhai (Supra), the Division Bench, after referring to Kalubhai Vs. State of Gujarat, 65 GLR 459, observed that in the said decision Section 9 Subsection (2) of the Old Act is pari-materia with Section 7 Subsection (2) of the New Act is directory and not mandatory. The Division Bench held that Section does not prescribe what consequences would follow if prior consultation is not made before taking an action under the said Section. The Division Bench, ultimately, held and observed “….it appears that the provision is directory and although it does not indicate a duty to consult Panchayat before passing an order under the Section, but, it does not follow that every departure from that duty will taint the whole proceedings with a fatal blemish and render it void and ineffective”.
10.2 Making observations on factual aspect of the case, the Division Bench in Para.9 of the judgment observed, thus :
“In the case, on basis of the material which was before the Government and the representation made by the Bavala Nagar Panchayat, the Government had on 24-12-1990, taken a decision not to accept the proposal for bifurcation of Bavala Nagar Panchayat. If it had been a case of mere consideration of the material which was already there and in respect of which the concerned Panchayat was already consulted earlier, then it could have been said that it was not necessary to consult it again. But it is an admitted position that fresh material was placed before the Government after 24-12-1990. For making consultation effective and real the Government ought to have disclosed the new material to the Panchayat and ascertained its view thereon. No reason has been pointed out for not doing that. It is also not pointed out that if the action of the Government is regarded as invalid, it would be prejudicial to public interest. Therefore, the impugned action of the Government will have to be regarded as arbitrary and thus liable to be declared as invalid”.
10.3 Thus, according to the Division Bench, in the case of Nathabhai (supra) as the decision of the Government founded on fresh material was without consultation and therefore, although the requirement of consultation was not mandatory, the decision was held to be invalid. No reason was indicated by Government for not undertaking the exercise of consultation. The ratio decidendi therefore is that requirement of consultation is not mandatory and is directory. However, the consultation has to be effective and real, and for making it effective and real, the new material considered by Government ought to have been disclosed to the Panchayat and ascertained its view.
11. In the case of Likhi Group Gram Panchayat (supra) also the Division Bench held that requirement of Section 9(2) of the Old Act is not mandatory. What is required is the consultation and not consent or concurrence. Before that Bench, it was also argued that the Development Commissioner has turned down the proposal for division / bifurcation and thereafter, without consultation of the Gram Panchayat or Taluka Panchayat, a different view was taken to bifurcate the Panchayat. The Division Bench observed that looking at the resolution, it was clear that there was no mala fide on part of the Development Commissioner in issuing the Notification. Earlier there was consultation and this different view was taken within a short time and therefore, the Division Bench observed that if ultimately the Development Commissioner has issued Notification within such a short period, it cannot be said that within such a short period further consultation was required. The Division Bench relied on Kalubhai’s case that a duty to consult Panchayat before passing an order under Section does not necessarily mean that every departure from their duty will take the whole proceedings with a fatal damage and render it void and ineffective. Thus, the Division Bench, in the facts of that case found that there was no much lapse of time and non-consultation did not affect the decision.
12. What emerges from these two judgments therefore is that in case of Nathabhai, the Division Bench found that as the decision was taken on fresh material, earlier consultation would not be effective or real. Whereas in the case of Likhi Group of Gram Panchayat there was no fresh material, there was no change in circumstance and the time lag was so narrow that the Division Bench, probably, felt in the facts of the case that fresh consultation was not required. Both the decisions concurred on the aspect that requirement of consultation is not mandatory, but, is directory. The decision taken in both the cases in respect of further consultation were based on facts of those cases and in our opinion, as such, there is no conflict between the ratio laid down in the two decisions.
13. The third point that requires consideration by virtue of the reference is whether the Government can issue Notification without again consulting the Panchayat as per the requirement of Section 7(2) of the New Act.
13.1 As discussed above, though the requirement of consultation is not mandatory and is directory, in our opinion, it cannot be given a total go-bye to it. Since the Legislature in its wisdom has incorporated this provision, it has to be given its due importance. It is true that in other case non-compliance would not vitiate the decision, valid reasons therefore have to be indicated. The object behind the enactment has to be saluted. The affected party must have an opportunity to express its opinion and view on he proposed decision. The term is used as a consultation and it cannot be, by any stretch of imagination , taken as concurrence or consent and therefore, after consultation a decision may be taken by the Government.
14. After the consultation, once it culminates into a decision considering the pros and cons of the matter, the exercise comes to an end and chapter is closed. If it is proposed to make a fresh decision, in our opinion, it would be a new chapter and fresh exercise of consultation would be necessary. It will have to be examined whether there is change in circumstance or not and if so, what are the changes and for that reason, what is the view point of the Panchayat – the affected party. This requirement of law has to be, thus, saluted as if it is altogether a new proposal for decision on aspect of bifurcation.
15. If after undertaking an exercise a final decision one way or the other is not taken, probably fresh exercise may not be undertaken once again. If there is a lapse of time resulting into change into factual scenario, the Government or the Authority can legitimately be expected to undertake a fresh exercise of consultation.
16. In view of the above discussion, the points for our determination are answered as under :
(i) The term ‘Consultation’ has to be taken as an effective and meaningful and genuine consultation and not a formality.
(ii) There is no conflict between the ratio laid down in the case of Nathabhai (supra) and Likhi Group Gram Panchayat (supra). The conclusions are based on fact of each case, but, there is no conflict in the ratio.
(iii) If proposal has culminated into a decision, fresh exercise of consultation would be necessary before taking a fresh decision. We may reiterate that the consultation is not mandatory and every departure therefrom may not render it void or ineffective, but, the provisions of law has to be saluted in its spirit and exercise of consultation should be undertaken.
17. The Reference stands disposed of accordingly.
J.N. Bhatt, J. (Concurring):
18. I, while agreeing with the ultimate conclusion and supporting reasons, highlighted and heralded, by my learned brother, Justice Dave, respectfully, propose to add the following grounds and propositions for more effective, better and efficient, understanding, proposition and exposition as well as interpretation of the provisions of sub-section 2 of Section 7 of the Gujarat Panchayat Act, 1993 (“Act).
19. By virtue of Section 2 of Constitutional (73rd) Amendment Act, 1992, which came into effect, from 24-04-1993, and the resultant inclusion of Chapter IX under the heading of “the Panchayats”, “a village” means a village specified by the Governor, by a public notification to be a village for the purpose of this part and includes a group of villages so specified and “Panchayat” means an instrument, by whatever name called, as the Government constituted under Article 243-B, for the rural areas. A Constitutional Mechanism of Gram Sabha, Panchayats, including a provision of a bar to interfere by the Courts in electoral matters of Panchayats play significant role in highlighting the purposive, useful, real and meaningful interpretation of expression, “Consultation” employed in Section 7 (2) of the Act corresponding to the provision of Section 9 (2) of the Gujarat Panchayat Act, 1961 (“old Act”.)
20. The Division Bench decisions rendered in Kalubhai Kesri Singh Mahida Vs. State of Gujarat, 1965 (6) GLR 451 and Nathubhai M. Patel Vs. State of Gujarat, 1993 (2) GLR 992 were prior to the aforesaid amendments in the Constitution relating to the composition and administration of the Panchayats. While upholding the nature of the provisions contained in sub-section 2 of Section 9 of the old Act corresponding to sub-section (2) of Section 7 of the new Act as `directory’ and not `mandatory’, it has been, succinctly, held that the scheme of the provisions in the context of the particular provisions under consideration and the intended benefit of the provision, as well as, the material danger by its contravention out to be seen and not only the actual words used in the statute. The proposition laid down for sublime and significant use of expression “consultation”, at the time of reconstitution of a village and administration of Panchayat under the Act, has been materially signified and reinforced by the inclusion of Chapter IX in the Constitution of India. Needless to reiterate that the Court is required to determine and decide, appreciate and check the merits of each case, having regard to the subject-matter in the backdrop of the factual premise and profile, and the resultant impact and effect, in the event of failure or departure, as it “ipso-facto” may not constitute invalidity of the action. It may, also, be remembered that the legislature must have provided, for good reasons, that before effecting reconstitution of a village or a change in the administrative set-up for a Panchayat, the concerned Panchayat ought to be consulted and departure from non-compliance in the light of constitutional status to Panchayat Raj Institute, ought to be viewed, very seriously and, therefore, by now, the said provision has to be taken almost like a mandatory prescription though the expression employed in Section 7 (2) of the Act is “may”.
21. As a grass-root institution, the Panchayat administration concept and philosophy has deep old roots all along in the ancient days. The growth of Panchayat, as an institution in villages and towns, as a system of governance, is phenomenal and remarkable, notwithstanding that during the times of kingdoms, autocracies, feudal Rajas and Maharajas, this institution has played an important and effective role in creating democratic public opinion. Those were the days when Panchayats, as effective instrument, as a popular democratic public opinion, as to morality had impelled King Ram to banish wife, Sita, on suspicion, whereas these days, worst, criminals, escape moral obligations to quit till the crime is established beyond doubt. It was an information technology leading to effective public opinion, which gave various authority to behave elderly through consensus building. Human rights are implicitly preserved, observed and subserved in revolutionary evolution of the institution of the Panchayat. Fragmentations and factionalism, fanaticism and fundamentalism should remain miles away from the administration of self-government like institution of Panchayats for the better welfare of society and higher interest of the common man and the concept of better governance. The object of Panchayat Raj inheres, `dil-bandi’ and not `dal-bandi’. Once upon a time, villages were very happy in their splendid isolation. Today, isolation is neither splendid nor desirable for the growth of Gram Republic philosophy and effective participation in development and governance.
22. Unfortunately, the glowing scenario of the expression, “Panchayat” underwent a sea change after independence. Dynamics of “Village Panchayat” needs no emphasis in a democratic and republic set-up of governance. The creation of Panchayat should not be oriented only to ensure the realisation of revenues and power. It should not be compromised with the various forces from political parties to penetrate the peace and tranquility, objectivity and morality. The institution of Panchayat has to be taken as an instrument of transformation of socio-economic life and liberty. It is, rightly, said that for such institutions, elections are not the democracy. Panchayats are meant for pious and progressive governance and not mere drum-beating. Empty democracy is retrogressive and disillusionary. It was rightly, observed in Balwant Rai Mehta Report (1978) on Panchayats that at times political parties hierarchies and a State were clashing in contradictions, which were contrary to the policy and planning for the Panchayati Raj institutions and vice-versa importance of achieving success of revivalist Panchayati system in the party demanded parochial environments without their ability and commitment to oversee and closely supervise the re-establishment of clear, composed and clean democratic and developed institutions village upwards. Ashok Mehta Report, 1978 was even more illustrating on Panchyati Raj failure. It said the Panchayati Raj story of ups and downs in three phases: one, the phase of ascendancy (1959 65); two, stagnation (1965-69) and decline (1969-77). The Committee, also, highlighted and repeated the Balwant Rai team’s observation and made observations and suggestions.
23. The Panchayati Raj, like democracy at national and State level, has both, an end and means. This is in essence even of an integrated democratic polity. It is essential for de-centralisation, better development. More importantly, for the creations of an integral structure of self-governing institutions from village upwards to national level, Panchayati Raj is to be the foundations of swaraj.
24. It is in this context necessary to emphasise that there should be no intrusion or intervention of the rights and duties, custom and culture, composition and character of the institution of Panchayati Raj. It is in this context, it is, rightly, said that the consensus is going to be the integral cultural system of the governance and if Consensus Raj and Panchayati Raj made for each other, so much the better. The political hierarchies and the State leadership cannot underscore and underestimate the significance and the content of the Panchayati Raj by not following statutory provisions, even whether it is directory, more so in the text and context of inclusion of Chapter IX of the Panchyati set up and mechanism in the Constitution of India in 1993 and it is in this context and environment though Section 7 (3) speaks of “consultation” and not “consent” or “concurrence”. The direct adherence and observance of the expression, “consultation” employed by the legislature in its wisdom and magnified and reinforced by the inclusion of Chapter IX in the Constitution of India should, always, be insisted and ought to be the hallmark of the growth and development of the concept of Panchayat which is in the higher public interest.
25. There is a dynamic reform in approach to governance and dealing increasingly with the provision for consultation with civil society in relation to legislative, public policy and developmental activities in a democratic set up. While this development may have led to enhanced understanding of consultation, as a mode of involving larger sections of society or the people of the territorial units, in decision-making, the term “consultation” constituted, has to be used interchangeably with, for example, “participation” and “involvement” understandably in the context of informal or non-formal dialogue. This practice risks of obscuring a clear understanding of the expectation that can be had of consultation as a function of forming public opinion or public decision-making.
26. Consultation with the people or the representative organisations and individual citizens in relation to any public better or public policy initiatives can summarily be highlighted as being a commitment on the part of the government or a governmental agency to actively listen to and take into consideration the views of the individual or representative organisation on a given set of legislative or public policy reformative proposals. Indisputably, process of consultation is a mode of involvement that brings with it no guarantee that the view-point of an individual citizens or representative organisations, shall be reflected in actions or documents arising from given public consultation, let alone be translated into actions.
27. There is a considerable philosophical and conceptual body of literature available to facilitate the development of a single coherent definition of “consultation” as “a mechanism for involving rural folks or people or citizens in decision-making, including in relation to public policy development”. Let it be mentioned that in a period spanning over 30 years, Arnstain (1969), Hart (1992), John (1996), Franklin (1997), Treseder (1997) and Lendonz (2001) are among those who have forwarded the definition of consultation and moreover to have constituted these definitions schematically in relation to other modes on involvement. Roger Hart’s adaptation of Armstein’s ladder of participation is worth mentioning because it was the model chosen for presentation in national development strategical approach.
28. As this philosophical and conceptual aspect of the word, “consultation” illustrates clearly not only the meaning of consultation, but the regard and esteem in which it is held that it can be a focus for divergent opinions and views.
29. The consultation, therefore, has to be understood as a mechanism for collecting views, selecting opinions, eliciting information that can inform about development of a policy to a public policy maker at the state and national level. The views of the people of village in getting them participated in the process of decision-making and influencing decision-making process is not of a notion, but is a vision and has to be understood with missionary zeal in a democratic governance. The concept of consultation in a democratic set up also augments culture and concept of a federalism. Consultation provides an involvement of obtaining important advice, ideas and divergent opinions from various kinds of people regarding the formation, evaluation, monitoring. Failure to consult or departure from the statutory mechanism of consultation, even if it be directory, has to be taken very seriously, as departure of such process entails evil and civil consequences directly or indirectly, knowingly or unknowingly, deliberately or otherwise, for, effective, efficient and meaningful governance and autonomy of self-government at the bottom of the pyramid will result into de-generation, de-composition and disintegration of the process of democratic values, rule of law and fundamental principles of natural justice as opposed to the evolution of the humanistic and logistic rights. The Reference is, in the result, answered accordingly.