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The Constitution (73rd Amendment) Act, 1993 and the Status of Rural Local Governance in India in Last Two-Decades by Shaliesh Kumar & Sumit Kumar

About Authors: Shailesh Kumar is a M. Phil. candidate at Center for the Study of Law and Governance, Jawaharlal Nehru University, New Delhi. Sumit Kumar is a Ph.D candidate at NUSRL, Ranchi.

It has been two decades since the Panchayati Raj system got the constitutional mandate of being the third-tier of democratic governance in India. Still, the lack of devolution of functional and financial powers being supported by the lack of will power of legislative and executive authorities has made it a toothless tiger and a mere puppet to the state governments. This article looks into different perspectives of it in the last two decades and tries to bring forth the hurdles in its functioning and the vulnerable actors involved in it. Lastly, the article presents possible solutions such as the application of principle of subsidiarity and redesigning of the 11th schedule to make gram swaraj a functional reality in India. 

 

Introduction

The purpose for widening the scope and fairness of a democracy is to promote twin objectives of accountability and responsiveness of policy concerning delivery of local public goods and services to citizens, and decentralization[i] is one way of such widening.[ii] For this phenomenon to see the light of the day, steps were taken in the form of a provision in the Constitution of India, constitution of multiple committees in a non-periodical manner to look out for its reforms and finally granting constitutional status via an Amendment Act to the panchayati raj (hereinafter PR) functionaries. The reason behind these efforts was that the PR system was seen as a means of promoting greater community participation & involvement in developmental efforts and also local government officials are thought of being more equipped with the choices of local citizens.[iii]

Two decades have elapsed and even after these many efforts, the functioning of the PR system has either remained dormant or has remained thwarted or dominated social exclusion and domination by the upper castes and other such dominating groups at the village and state levels in most of the states except very few such as the states of Karnataka[iv], Kerala[v] and West Bengal[vi] where the PR system has been relatively successful, but that too in the pre-Amendment period. So, an obvious question then arises that what could be the reason behind such failure and dull performances by the rural local governments, i.e. Gram Panchayat, Panchayat Samiti and Zilla Parishad which constituted the three-tier PR system in India.

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This essay, starting with a background to give a beforehand knowledge of the PR system’s functioning in the past, briefly states the essential changes brought in by the Amendment and then moves ahead with the answers to the pertinent questions incidental to the one raised in the previous paragraph. The limitation of the essay is that it has not dealt with any state-wise analysis of devolution of power to the rural local bodies. It delves into the questions such as ‘Does the Amendment encourage the decentralization of decision-making at various local levels in the country?’, ‘Has the Amendment been successful in abolishing the loopholes of the earlier PR system, specially talking with reference to the participation of SCs, STs and Women?’, ‘whether the constitutional backing will make any difference to the status of the PR system in the long run?’ ‘Has it been able to revitalize the rural local government in India and has been a boon in true sense?’.

Thereafter, to reach out to the answers, the essay will be looking into the constitutional setting behind the Amendment, assessment of design and scope of different kinds of devolutions at the state level with the help of certain data and will also mention the case-study of few states of India with respect to status of PR system. The essay will then conclude by observing and analysing all these aforementioned questions and their answers along with the present status of rural local governance in India after two decades of the birth of the Constitution (73rd Amendment) Act, 1993.

Background

            In India, though the seeds of rural local governance were sown[vii] as early as during the drafting of the Constitution, its functionaries were given constitutional status only after ‘46 years’ of our independence and that too within one day without any debate over it.[viii] Although, the rhetorical steps like formation of committees[ix] were there on the part of the central governments at different times prior to the conferment of the constitutional status and a three-tier PR was introduced in India for the first time in 1957, nothing much could have been done to give firm shape to Gandhi’s dream of gram swaraj (Village self-sufficiency).[x]

Further, the PR system met its slow death as people’s participation was severely going down because regular elections to the various panchayats were not being held.[xi] There was plethora of other reasons for this, such as electoral competition between state and PR representatives, power politics and distribution of patronage, lack of money and cooperation from government departments.[xii] For the first time, the constitutional safeguard to PR system was recommended by the Ashok Mehta Committee in its 1978’s report itself to extend the decentralization of power, but the PR system always remained subordinate units of the government and could never become agencies of self-government.[xiii]

Finally[xiv], in the year 1992, the PR system was given constitutional status which they were lacking in, by passage of the Constitutional (73rd) Amendment Act, 1993. The consensus behind this emerged gradually because of the failures of the Indian state with respect to human development and poverty alleviation in rural areas.[xv]

 

The Constitutional (73rd) Amendment Act, 1993: Key Provisions

            Hailed as a watershed in the evolution of local governments in India, this Act contains Part IX of the Constitution of India and has added 11th Schedule to it.[xvi] Articles 243 to 243 ‘O’ in the Constitution are related to the PR system and there are 29 functional items of the Panchayats.[xvii] The Act has provided for a three-tier system, same as was introduced in 1957, in the form of the Gram Panchayat at the village level, Panchayat Samiti at the block or intermediate level and Zilla Parishad at the district level.

It provides for a five-year office term to the Panchayat at every level.[xviii] It has an inclusive provision of reservation of seats for the SCs and STs in every Panchayat and at all levels, proportionate to their population in the Panchayat area.[xix] Rightfully so, consideration to women under the Act has resulted into reservation of not less than one-third of the total number of seats for them.[xx]

The Act has also mandated the regular elections to locally elected bodies looked after by the State Election Commission, which is there for direction, superintendence and control of the preparation of electoral rolls and the conduct of all elections to the Panchayats.[xxi] More so, the Governor of the respective state has been empowered to constitute a State Finance Commission, after every five years, to review the financial position of the Panchayats.[xxii]

Few noteworthy reasons behind the passage of the Act were that there was widespread consensus regarding the failures of the bureaucratic and centralized apparatus of the Indian developmental state which was supplemented with a political agenda of democratic deepening and there was a remarkable consensus among India’s policy-making and intellectual elites.[xxiii]

 

PR system and its vulnerable actors

Before getting into the analysis of different parameters of the design and scope of devolution in various states, let’s first know the incidental effects and relations of the PR system on and with its various vulnerable stakeholders.

Bureaucracy and the PR system:

            Bureaucracy comes in as a stakeholder not in the sense that whether it gets benefit out of the system or not, but because of the vital role it has to play for the success of the PR system. Bureaucracy has not been sympathetic to the PR system as the bureaucratic gate keeping of Panchayats has always been there where bureaucrats can throw rules at Panchayats and will never be accountable to them. Most panchayati raj institutions still operate as poor adjuncts to the bureaucracy and higher level governments.[xxiv]

There has been a big disconnect between the lower level bureaucracy and the PR system and ongoing tussle still continues where the PR system has tried to function well and flourish. Even the transfer of service control of lower bureaucracy to Panchayats has not been successful as in Madhya Pradesh it has been tried and resulted in a big failure. It has been seen that the civil servants at the local level are accountable only to their seniors in the administrative hierarchy and never want to be accountable to the members of the local government.[xxv]

Women and Surrogate representation:

            Though, the one-third reservation has created a silent revolution in the country, the government always needed to support this watershed provision with sufficient social, economic and political conditions to enable women to participate effectively in the local government institutions.[xxvi] But, the environment remained the same, and even though the data[xxvii] showed that most of the states followed this constitutional mandate, it has always remained illusionary in nature.[xxviii]

            It has been analysed that elected women often act as proxies for men’s views at the councils, being advised by their male relative.[xxix] The one-third reservation given to women under the Act has not led to anything but to surrogate representation actually, where any male relative of the women concerned exercises power on behalf of her, rendering her as mere de jure actor and there are very few women in PR system those are actually functioning.

Dalits and Adivasis:

            With respect to SCs and STs, the case has been even worse that the case of women representation in the PR system. At the village level, most of the states have been found not have proportionate representation instead of it being a constitutional mandate, which points towards the social and exclusionary dynamics operating in the villages of the states.[xxx] On the other hand, the observation of the mandate at the district level is nothing but politically motivated steps by different political parties for purely electoral reasons.

            The reservation given to them under the Act too seems futile as they are just acting as rubber stamps and until and unless the socio-political environment gets non-exclusionary and participatory democratization in terms of participation by SCs and STs takes place, this constitutional mandate will remain a dead letter.

MLAs and the PR system:

            The devolution of powers under the 11th Schedule has also led to the power undercutting for MLAs and thus they see the PR system as a threat to their monopoly over the domain of power and corruption at the local level. It has been seen that many MLAs and in few states even MPs held the membership of the local bodies and which has resulted in them enjoying disproportionate influence.[xxxi]

            More so, the 2007 amendment to the Karnataka Panchayati Raj Act which conferred upon the state legislators, powers over the gram sabhas and panchayats, not only takes away the panchayats’ right to choose beneficiaries for government-funded programmes but also affects the right of rural voters to participate in local self-government, and shows that how the spirit of decentralisation and the Constitution are dismantled.[xxxii]

 

 

Design, Extent and Scope of Devolution

Along with mandatory provisions in the 73rd Amendment Act, there were many key discretionary provisions too, due to which the design and degree of implementation of these provisions were lying at the behest of the individual states depending upon their whims and fancies. Now, this has led to a substantial digression in the extent, design and scope of devolution across different states of India. The devolution of powers, thus, to the rural local bodies, with respect to all three dimensions i.e. political, functional and financial, has been very poor.

 

Reforms with respect to political devolution:

            For the first time in India the dramatic broadening of representative democratic base took place after the passage of the 73rd Amendment Act, as it led to exponential enhancement of constitutionally recognised representative bodies to more than 2 million. But still, against the spirit of Amendment, most of the states have retained considerable powers over the rural local bodies with them and have acted as an ‘Aggrandiser government’[xxxiii]. Though, some of the states have conducted elections to these PR bodies, it has not been at a regular interval of 5 years.

            Many a time, the Supreme Court and the High Courts had to assertively intervene to preserve the spirit of the Constitution, as in the cases of Orissa, Andhra Pradesh and Uttar Pradesh. The bureaucracy too was indisposed to have elected PR institutions. In most of the states, the state government supported by the bureaucracy believes that they are and should be the only karta dharta of the state. Also, most of the states had direct elections of the panchayat chairperson, which was perpetuating this position’s status as ‘first among equals’.[xxxiv] The roles and functions of gram sabha were left to the discretion, whims and fancies of state legislatures and just remained developmental organisations and implementing agencies.

Reforms with respect to functional and financial devolution:

            Instead of having an array of functions under the 11th Schedule, which was overlapping to a great extent with those mentioned under the 7th Schedule, the functioning of local governments has always remained confined to street lighting, sanitation, water supply and local roads. With respect to developmental activities, they have acted as implementing agencies in the form of google search engines for the state governments merely to identify beneficiaries. They could never oversee management and implementation of plethora of governmental schemes.

            Even after the Constitutional Amendment, the legislations enacted or amended by the states to widen the domain of functioning of panchayats have been in a skeletal form and the ‘flesh and blood’ of it has been missing for the reason that the administrative rules and procedures have been controlled largely by the executives. Specific rules and responsibilities of the PR bodies have been substantially absent from these enactments.

            Many states have not established the district planning committee mandated by Article 243ZD, and even where it is in place, they are being headed by state ministers, which again strikes severely at the decentralization of power. Further, even in some states, though the functions have been transferred, requisite amount of funds and personnel, through which these functions can be carried out, has remained under the control of state government and the state-level bureaucracy except in states of Karnataka, Kerala, West Bengal and Maharashtra.[xxxv]

 

 

Conclusion and Suggestions

Though, the Panchayats have been considered as a gift by the sovereign politics to the people of the villages of India, it is not so, as, they have been thought of as the nursery of future India, and their success becomes immaterial for the reason that their existence in itself is necessary. More so, it can be inferred that there have been lesser leakage of resources at the Panchayat level and under the wider PR system as a whole in comparison to the national or state level. Further, it can be seen from the analysis of the data available that the PR system has great potential and competence to play a major role in the overall progress of the economy and polity of such a diverse and big country as India.

It has only been less than two decades and this is too short a time to write a report card of the PR system. And, to say that they have always been inefficient is actually improper and too early to make a conclusive comment. They too need much more time, say at least another fifteen to twenty years, to showcase what they are capable of and then only someone can come up with a substantial analysis of the functioning of the PR system. Also, by saying this, I never intend to say that decentralization or the PR system can be panacea for all problems of corruption and accountability.

            Further, I would like to suggest that merely placing plethora of functions doesn’t make sense, as it has been observed that state governments see it as their power undercutting and treat it as a threat; rather, the legislature should try to implicate the principle of subsidiarity[xxxvi] for drastic reorganisation and redesigning of the political and administrative system at the state level to accommodate strong district and lower-level PRIs to assign functions to levels where it works in the best possible manner. Also, the functional efficacy of the PR system along with its democratization must be kept in mind and should not be overlooked.

            At the end, I would like to conclude by saying that it has become very pertinent to ask us and especially to those involved in PR system’s establishment and functioning, that what do we want from the Panchayats and what is the democratic rationale of local governments. Only after answering these questions we’ll be able to fulfil the Bapu’s dream of gram swaraj.

 

LIST OF REFERENCES

  • Statutes:
  • The Constitution of India, 1950
  • The Constitutional (73rd) Amendment Act, 1993

 

  • Literature cited (Books and Articles):
  • Aureliano Fernandes. 2003. ‘Aggrandiser Government and Local Governance’. Economic and Political Weekly, July 5, p. 2873.
  • Banerjee, Rahul. 2013. ‘What Ails Panchayati Raj?’. Economic and Political Weekly, Volume XLVIII, No. 30 (Jul. 27), p. 173.
  • Bardhan, P. and Dilip Mookherjee. 2006. ‘Decentralization in West Bengal: Origins, Functioning and Impact’, in: Pranab Bardhan and Dilip Mookherjee (eds.) Decentralization and Local Governance in Developing Countries, (London: The MIT Press)
  • Bardhan, P. and Dilip Mookherjee. 2006. ‘The Rise of Local Governments: An Overview’, in: Pranab Bardhan and Dilip Mookherjee (eds.) Decentralization and Local Governance in Developing Countries, (London: The MIT Press)
  • Chaudhuri, Shubham. 2006. ‘What Difference Does a Constitutional Amendment Make? The 1994 Panchayati Raj Act and the Attempt to Revitalize Rural Local Government in India’, in: Pranab Bardhan and Dilip Mookherjee (eds.) Decentralization and Local Governance in Developing Countries, (London: The MIT Press)
  • Crook, Richard and James Manor. 1995. ‘Democratic Decentralisation and Institutional Performance: Four Asian and African Experiences Compared’, Journal of Commonwealth & Comparative Politics, Volume 33, No. 3, pp. 309-334 (Frank Cass: London).
  • Hazarika, Sujata D. 2006. ‘Political Participation of Women and the Dilectics of 73rd Amendment’. The Indian Journal of Political Science, Vol. 67, No. 2 (April- June), pp. 245-260 <https://www.jstor.org/stable/41856212> (Last Access: 15th November, 2014)
  • Mohanty, Bidyut. 1995. ‘Panchayati Raj, 73rd Constitutional Amendment and Women’. Economic and Political Weekly, Volume 30, No. 52 (Dec. 30), pp. 3346-3350. < https://www.jstor.org/stable/4403611> (Last Access: 10th November, 2014)
  • Reddy, Nandana and Damodar Acharya. 2007. ‘Striking at the Roots of Democracy’. Economic and Political Weekly, May 5, p. 1601.
  • Rondinelli, Dennis et. al. 1983. ‘Decentralization in Developing Countries’. World Bank Staff Working Papers Number 581, Management and Development Series Number 8 (World Bank: Washington).
  • Singh, Hoshiar. 1994. ‘Constitutional Base for Panchayati Raj in India: The 73rd Amendment Act’. Asian Survey, Vol. 34, No. 9, September, p. 820.

 

[i] From a political point of view, it is an important element of participatory democracy wherein citizens have an opportunity to easily communicate their choices to elected officials who are accountable to them.

[ii] Bardhan, P. and Dilip Mookherjee. 2006. ‘The Rise of Local Governments: An Overview’, in: Pranab Bardhan and Dilip Mookherjee (eds.) Decentralization and Local Governance in Developing Countries, (London: The MIT Press), p. 5.

[iii] Chaudhuri, Shubham. 2006. ‘What Difference Does a Constitutional Amendment Make? The 1994 Panchayati Raj Act and the Attempt to Revitalize Rural Local Government in India’, in: Pranab Bardhan and Dilip Mookherjee (eds.) Decentralization and Local Governance in Developing Countries, (London: The MIT Press), p. 154.

[iv] Crook, Richard and James Manor. 1995. ‘Democratic Decentralisation and Institutional Performance: Four Asian and African Experiences Compared’, Journal of Commonwealth & Comparative Politics, Volume 33, No. 3, pp. 309-334 (Frank Cass: London). The author has said that the Karnataka case is distinctive or ‘deviant’ with an unambiguously positive performance outcome.

[v] Chaudhuri, 2006, supra note 3, pp. 188-190. The author has given rank 1 to the state of Kerala for the reason that it has undertaken significant devolution in conformity with the 73rd Amendment Act and it has also been supported by the World Bank study and used by the 11th Finance Commission in allocating funds to states.

[vi] Bardhan, P. and Dilip Mookherjee. 2006. ‘Decentralization in West Bengal: Origins, Functioning and Impact’, in: Pranab Bardhan and Dilip Mookherjee (eds.) Decentralization and Local Governance in Developing Countries, (London: The MIT Press), p. 219. The author has claimed in his assessment that with respect to distributive justice, the West Bengal panchayats certainly appear to be quite successful.

[vii] The concept of Village Panchayats was inserted in the Constitution in Article 40 under the chapter of Directive Principles of State Policy.

[viii] The Constitutional (73rd) Amendment Act, 1993, which was passed by the Lok Sabha and Rajya Sabha on 22nd December, 1992 and 23rd December, 1992 respectively with ratification by 17 state assemblies, including West Bengal and Bihar (both opposition-ruled states). Thereafter, the president signed the bill and it went into effect on April 24, 1993.

[ix] Constitution of Balwantrai Mehta Committee in 1957, Ashok Mehta Committee in 1977, C.H. Hanumath Rao Working Group on District Planning in 1983, G.V.K. Rao Committee in 1985 and L.M. Singhvi Committee in 1986.

[x] Singh, Hoshiar. 1994. ‘Constitutional Base for Panchayati Raj in India: The 73rd Amendment Act’. Asian Survey, Vol. 34, No. 9, September, p. 818.

[xi] Ibid, p. 819.

[xii] Ibid, pp. 820-21.

[xiii] Ibid, p. 820.

[xiv] The legislative origin of such Amendment dates back to the Constitution (64th Amendment) Bill introduced by Rajiv Gandhi in July 1989 which got defeated in Rajya Sabha because of little discretionary power on offer to states in terms of local government reforms.

[xv] Chaudhuri, 2006, supra note 3, p. 162.

[xvi] The Constitution of India, 1950.

[xvii] The Constitution of India, 1950.

[xviii] Article 243E, the Constitution of India, 1950.

[xix] Article 243D, the Constitution of India, 1950.

[xx] Ibid.

[xxi] Article 243K, the Constitution of India, 1950.

[xxii] Article 243I, the Constitution of India, 1950.

[xxiii] Chaudhuri, 2006, supra note 3, pp. 154-155.

[xxiv] Banerjee, Rahul. 2013. ‘What Ails Panchayati Raj?’. Economic and Political Weekly, Volume XLVIII, No. 30 (Jul. 27), p. 173.

[xxv] Chaudhuri, 2006, supra note 3, p. 161.

[xxvi] Mohanty, Bidyut. 1995. ‘Panchayati Raj, 73rd Constitutional Amendment and Women’. Economic and Political Weekly, Volume 30, No. 52 (Dec. 30), pp. 3346-3350. <https://www.jstor.org/stable/4403611> (Last Access: 10th November, 2014)

[xxvii] See, Chaudhuri, 2006, supra note 3, p. 171. The table formulated by the author has shown that except Punjab and Uttar Pradesh, all other states have followed the 33% reservation mandate.

[xxviii] Hazarika, Sujata D. 2006. ‘Political Participation of Women and the Dilectics of 73rd Amendment’. The Indian Journal of Political Science, Vol. 67, No. 2 (April- June), pp. 245-260 <https://www.jstor.org/stable/41856212> (Last Access: 15th November, 2014)

[xxix] Hazarika, 2006, supra note 28, pp. 245-260.

[xxx] Chaudhuri, 2006, supra note 3, p. 172.

[xxxi] Ibid, p. 174.

[xxxii] Reddy, Nandana and Damodar Acharya. 2007. ‘Striking at the Roots of Democracy’. Economic and Political Weekly, May 5, p. 1601.

[xxxiii] Aureliano Fernandes. 2003. ‘Aggrandiser Government and Local Governance’. Economic and Political Weekly, July 5, p. 2873.

[xxxiv] Chaudhuri, 2006, supra note 3, p. 174.

[xxxv] Chaudhuri, 2006, supra note 3, p. 177.

[xxxvi] Rondinelli, Dennis et. al. 1983. ‘Decentralization in Developing Countries’. World Bank Staff Working Papers Number 581, Management and Development Series Number 8 (World Bank: Washington).

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