LSG Study Notes II- Functioning of Local Governments and the Constitutional Scheme

LSG Study Notes- Functioning of Local Governments and the Constitutional Scheme

Chapter IX- Rural Administration.

Chapter IXA- Urban Administration.

Rural Administration-

1.      Gram Panchayat- Village Level.

2.      Gram Samiti- Block Level.

3.      Zila Parishad- District Level.

Urban Administration-

1.      Nagar Panchayats- Rural but slowly becoming Urban Areas.

2.      Municipal Councils- Small urban areas, population less than 5 lakhs.

3.      Municipal Corporations- Large urban areas.

These provisions were enabling provisions. State governments were given orders to pass confirmatory legislations on the lines given in the constitution.

Purpose of Panchayati Raj Bills- (73^rd and 74^th Amendment Bill)-

76^th Constitutional Amendment- 1996- The Panchayati Raj institutions were extended in tribal areas in accordance with the V Schedule.

110^th Constitutional Amendment Bill- Pending

1.      Decentralization of Development- Rajiv Gandhi was convinced that if more than 10p/1 rupee has to reach the people, decentralization must be done. Money is bound to be lost in the pipe lines.

2.      There would be greater accountability of the people.

3.      Deepening and widening of the democratic base. He wanted to ensure people’s direct participation in their own affairs.

4.      Empowering weaker sections of the society. Bullock Cart Capitalists had grabbed everything. Caste divide was so imminent that empowerment was not reaching to the weaker sections of the society.

5.      This will create an inclusive society.

6.      Planning must be at grass root level so as to meet the needs and aspirations of the people.

7.      Establishing the principle of subsidiarity. Work must be carried at the appropriate level.

8.      Establish the principle of Good Governance. One of the principles is decentralization. The government must be small meaning that the central or state government must not be breathing on the neck of the people.

9.      Rajiv Gandhi wanted to transform representative democracy to people’s democracy.

10.  He wanted to establish third-tier of self-governance.

Amendment Bill

1.      It gives Panchayats a constitutional status.

2.      It does not give local self-governance but gives the guidelines to pass conformity laws.

3.      Jammu and Kashmir, Delhi and Arunachal Pradesh have not made any laws related to LSG.

4.      Meghalaya, Nagaland and Mizoram have been excluded because they have a different set of government.

5.      Previously, it did not apply to ST areas but now it is applicable.

There are 474 Panchayats at the district level and 5906 at intermediate level. 227,699 Panchayats are at the village level. 34 lakhs people have been elected and 10 lakhs are women.

Salient Features of the Bill:

1.      It envisages representation of the government at three levels but if the state has population below 20 lakhs, only 2 levels shall exist.

2.      Gram Sabha consists of all the persons who are registered as voters.

3.      Gram Panchayat is the elected representative.

4.      Law may provide for the reservation of the chairpersons for SC, ST, OBC and women.

5.      At the village level, reservation is much wider. Reservation to SC and ST is in relation to their population in that state. For OBC and women, 1/3 of all the elected seats must be reserved for women. OBC quota can be decided by the state law.

6.      Duration of Panchayats is five years from the date of the first meeting after the elections. It can be dissolved earlier by the state. Within six months, another election must be held but only for the remaining period of those five years. If the remaining period is less than six months, no election shall be needed.

7.      Every state shall constitute State Election Commission and it shall be its responsibility to hold elections.

In Kishan Singh Tomar v. M.C. Ahemdabad- 2006 Case- The power of the State Election Commission shall be same as the National Commission.

Who can contest elections?

All the qualification those are applicable to MLA election except that the age bar will be 21 years. State may lay down other qualifications as well. Conformity act shall designate an authority to disqualify.

Power and functions of the Panchayats-

1.      State may give such power and authority as may be necessary to enable these panchayats to act as the institution of local self-governance which may include:

a.       Preparation of plan for economic development of the village and social justice. Social Justice means removing inequalities and providing empowerment. The purpose of Social Justice is to create an inclusive and egalitarian society. Social Justice includes social and economic justice also. It includes:

i.      Rejection of present social structures and hierarchies.

ii.      Elimination of Feudalism.

iii.      Transition from slavery to freedom.

iv.      Implementation of Scheme of Education development.

v.      They were given powers in all matters listed in 11^th Schedule.

Power of Block Panchayats-

1.      District officer will be under their purview.

Five sources of finances that state may provide.

1.      Certain tax which will be imposed and collected by the state and handed over to the Panchayats.

2.      Certain taxes which Panchayats may be allowed to impose and collect.

3.      State will make Grant-in-aids.

4.      Certain specific development schemes may be given by the centre or state. E.g. NREGA.

5.      Donations.

But still their financial condition is very weak.

1.      Grant-in-aid is discretionary.

2.      Power to pay tax is negligible in rural areas.

3.      Centrally sponsored schemes give finance either directly to Panchayats or goes through the state.

4.      Corruption is also an important reason.

This remains the weakest link so far as LSG is concerned. Social Audit is one of the mechanisms which are being practiced in almost all the villages.

110^th Constitutional Amendment Bill proposes to increase women quota to 50%.

Article 243Y- Every five year, the state shall constitute a finance commission to review the financial position of the local self-governance. They will decide on which items power can be given to LSG for taxation purposes and also for sharing of taxes. They also decide about Grant in aid.

Article 243K- Every state shall constitute State Election Commission. It is responsible in the same manner as Central Election Commission is. They shall have the powers in the conduct of Panchayat Election in the same manner as that of Central. Also, the members of this commission, they shall enjoy same privileges as that of SC and HC judges.

In case of an election dispute, the state government has the power to appoint any authority. Bar of Courts is given under article 243O.

State has the power to dissolve the Panchayati Raj System. The only caveat is that election must be re-held in 6 months.

74^th Amendment- Urban Self-Governance-

Municipal Corporations already existed in India. Article 243P creates 6 types of urban institutions in India:

1.      Nagar Panchayat- a Nagar Panchayat (by whatever name called) for a transitional area, that is to say, an area in transition from a rural area to an urban area. Governor’s discretion.

2.      Municipal Councils- Population 20,000- 300,000.

3.      Municipal Corporation- Larger cities, greater than 300,000.

4.      Ward Committees- If in a Municipal Area, population is greater than 300,000, Ward Committees may be created.

5.      Government may create other committees as well.

6.      There are certain Industrial townships in India. For those townships, Municipality is not necessary. Jamshedpur and Bhilai are two such townships.

Article 243R- Each Municipality is divided into wards. There is no Delimitation Commission. Sometimes, the ruling party delimits constituencies for their own electoral benefits.

Members of the Municipalities are elected from the wards of these constituencies. The government has the power to nominate certain persons. It detracts the whole concept of self-governance.

Article 243T- Reservation of seats- This is done in proportion of their population in the Municipal Area. One-third seats shall be reserved for SC/ST women. Besides that, overall also one-third women are to be present. Reservation can also be for chairpersons. Reservation for SC/ST will end in 2026. State may also make law for reservation of OBC candidates.

Article 243U-Duration- 5 years

If Municipality is dissolved, a reasonable opportunity of being heard must be given. 

Disqualifications- Article 243V- Age 21 years

Article 243W- State provides such laws as to enable them to act as institution of Self-government.

Article 243Y- Functions of the Finance Commission

Whether 73^rd and 74^th Amendments are constitutional or not?

Equal Participation-

Challenge to 243D and 243T-

K. Krishnamurthy v. Union of India- Must read- 2010 7 SCC 203- Karnataka Government passed a law by which they reserved offices for OBC’s. This was challenged on the grounds that it is unconstitutional. 

1. The nature and purpose of reservations under 243D and 243T violate article 15(4) and article 16(4). The SC said purpose of 15(4) and 16(4) is access to higher education and public employment but 243 is about political representation.

2. The period of reservation is not given. The period can be different because the purpose is different.

3. The manner in which reservation is made affects my right to vote which is my fundamental right. But the SC says right to vote is not a fundamental right.

4. There is no limit of reservation in 243, only talks about proportionality. 243 is just an enabling provision.

5. If the state makes reservation under the enabling provision, it shall be the duty of the state to prove the rationality of the reservation.

6. Can the reservation exceed 50% in the case of Panchayats? The courts made an exception in Panchayats relating to Tribal Areas.

7. When post of the chairman is reserved, then it violates the concept of Single Post Reservation Theory laid down by the Apex Court. Chairman is an elective post. Single Post Reservation theory is only applicable to public employment where master-servant relationship is established. In case of Chairman, it is elective in nature. In case of Panchayat elections, one is not giving employment to chairman but talking about the diversity of political power.

8. The case of PM and President is different because in case of Panchayats, the purpose is to dislodge the entrenched people in power. The context is different altogether.