UNIT: 1

HISTORY

Historical roots of the local self-government in India can be traced from the ancient past. In fact,
India has been the cradle of rural local government, which continued to flourish from the time of
Vedic civilization to the advent of British rule. The village in India has been considered as the
basic unit of the local self-administration since the Vedic times. The term for the village was the
“Grama” which is an immemorial unit. There was little interference by the state in their activities.
It indicates that there was some method of self-government in those periods.

In the Rig-Veda, there is a mention of “Sabha, Samiti and Vidath” as local self-units. The concept
of “Panch – Parweshwar” or “Panch” – the god existed in the ancient age. There was a description
of Sabha and Samiti, which were the democratic bodies at the local level. The king used to get the
approval of the Sabha or Samiti regarding certain functions and decision. So, the village
communities were enjoyed with self-sufficient, self-reliant and independent autonomy.

The autonomous village describe by Sir Charles Metcalf: The village communities are little
republics, having nearly everything they can want within themselves. Dynasty after dynasty
tumbles down; revolution succeeds revolution, but the village community remains the same. This
union of village communities, each one forming a separate little state in itself, has contributed
more than any other to the cause of the preservation of the people of India and the enjoyment of
freedom and independence. References to such a highly organized system of local government can
be found in the Vedas, in the epics of Ramayana and Mahabharata, Manu Smriti, in the Kautilya”s
Arthashastra.

The epics of the Ramayana indicates that administration was divided into two parts – “Pur” and
“Janpad” and the village people were called the “Janpada”. It has mentioned the importance of the
decentralization of the functions of the state.

During the reigned of Chandragupta Maurya's dynasty the policy of decentralization of powers
was adopted. The village was considered as the smallest unit of governance body. A person elected
by the people of the village was the "Gramik" (Head of village) entrusted with wide power and
functions.

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In the medieval period, the Sultans of Delhi knew that it would be impracticable to govern a vast
country like India from the centre directly. Hence, they divided their kingdom into provinces called
"Vilayat", "Amir" or "Vali" was the head of a province. They were given an ample power and
functions like management of finance, collection of taxes and selection of judicial officials.

During the Mughal periods, village bodies were the pivot of administration. In this period
particularly in the regime of Sher Shah, the villages were governed by their own panchayat Each
panchayat comprised of village elders who looked after the interest of the people, administered
justice, and imposed punishment on defaulters. The headman of village, semi government officials,
acted as a coordinator between the village panchayat and the higher administrative hierarchy. In
this period, each village had its own panchayat of elders. It was autonomous in its own sphere and
exercised powers of local taxation, administrative control, justice and punishment. The Mughal
introduced elaborate administrative machinery with a hierarchy of officials, particularly in the field
of revenue. It was with the collapsed of the Mughal strong hold, the British established their
hegemony in India. In the words of Dr. Altekar: "From most ancient times villages in India have
been the axle of administration."

In the British Period the local administration became inactive as the British government was not
interested to vest the power to the local people instead of them. But after few time they realized
the necessity of local governance and thus, in the year 1687, a municipal corporation was formed
in Madras. Set up on the British model of town council, this body was empowered to levy taxes
for building guild halls and schools. Lord Mayo, the then viceroy of India (1869 to 1872), who felt
the need to decentralize powers in order to bring about administrative efficiency and in the year
1870 introduced the concept of elected representatives in the urban municipalities. The revolt of
1857 had put the imperial finances under considerable strain and it was found necessary to finance
local service out of local taxation.

The Bengal Chowkidar Act of 1870 marked the beginning of the revival of the traditional village
Panchayati system in Bengal. The Chowkidar Act empowered district magistrates to set up
panchayats of nominated members in the villages to collect taxes to pay the chowkidars or
watchmen engaged by them.

Lord Ripon made remarkable contribution to the development of Local Government. In 1882, he
abandoned the existing system of local government by the officially nominated people. According
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to his local self-government plan, the local boards were split into smaller units to achieve greater
efficiency. In order to ensure popular participation, he introduced an election system for the local
boards.

The Royal Commission on Decentralization in 1909 elaborated further the principles of Ripon
resolution. But this remained merely on paper. Ripon's scheme did not make much progress in the
development of local self-government institutions. In this backdrop, Montagu Chelmsford reforms
were passed in the year 1919. This reform transferred the subject of local government to the
domain of provinces. The reform also recommended that as far as possible there should be a
complete popular control in local bodies and the largest possible independence for them, of outside
control. By 1925, eight provinces had passed village panchayat acts. This is considered as another
important stage in the evolution of panchayats in British India. With popularly elected government
in the provinces, almost all provincial administrations felt duty bound to enact legislations for
further democratization of local self-government institutions, including village panchayats.

 Panchayati Raj under British India

The British came to India as traders. The primary focus of the British Raj was much to do with
trade and little to do with governance and development. In fact, until the advent of the British rule
in India, the rural republic had flourished and thrived. With the emergence of the British Raj in
India panchayat ceased to play a role that it once played. But, local self-government as a
representative's institution was the creation of the British. The first local authority created by the
British in India was the Municipal Corporation of Madras in 1887. This body was empowered to
collect taxes in local areas. It was Lord Mayo, the then Viceroy of India (1869 to 1872), who felt
the need to bring about administrative efficiency. The year 1870 was landmark when Lord Mayo
passed a resolution suggesting the decentralization of powers and the necessity of associating
Indians in administration. He introduced the concept of elected representation in the urban
municipalities and making them more powerful.

In 1880, Lord Ripon came as the Viceroy of India and he made a remarkable contribution to the
development of local government. In 1882, he introduced an important resolution - Local Self-
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Government Resolution. It provided for local boards consisting of a large majority of elected
nonofficial members and presided over by a non-official chairperson. This is considered to be the
"Magna-Carta" of local democracy in India.

The Royal Commission on decentralization in 1909 elaborated furthers the principles of Ripon
resolution. The Commission recommended, "It is most desirable alike in the interest of
decentralization and in order to associate people with the local tasks of administration that an
attempt should be made to constitute and develop village panchayat for the administration of local
village affairs."

In 1909 itself, the 24th Congress Session at Lahore adopted a resolution urging the government to
take easy steps "to make all local bodies from village panchayats upwards elected with elected
non-official chairman" and support them with adequate financial aid.

In 1919, Montague-Chelmsford Reforms Act, were passed. This Reform transferred the subject of
local government to the domain of provinces. The Reform also recommended that as far as
possible, there should be a complete popular control in local bodies and largest possible
independence for them, of outside control. However, this Reform could not get much result as far
as democratization of Panchayat was concerned.

In the year, 1935 British Government passed a historic Act of the Government of India Act, 1935
which gave a separate power to the Provincial Government. Popular elected provincial government
in the provinces got provincial autonomy and they were duty bound to enact legislation for further
democratization of the local Self-Government institution including the village Panchayat. Thus,
the spirit of democratic decentralization at the village level was existent right since the Ancient
period. Even though the British Government did not have interest in the village autonomy, they
were forced to do so, in order to continue their rule in India and to meet financial necessities.
However, the Indian rural local self-government become more and more organized and took proper
shaped by the time India became independent on 15 august, 1947.

The village panchayat, as a system of administration, began in the British days, as their offer to
satisfy the demands for local autonomy. They opened up the governance of the lowest levels to the
citizens. The Government of India act, 1935 also authorizes the provinces to enact legislations.

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 Even though such minor forms of local governance was evident in India, the framers of the
constitutions, unsatisfied with the existing provisions, included Article 40 among the Directive
Principles, whereby:

“The state shall take steps to organize village panchayats and endow them with such powers
and authority as may be necessary to enable them to function as units of self-government.”
Later, the conceptualization of the system of local self-government in India took place through
the formation and effort of four important committees from the year 1957 to 1986. It will be
helpful if we take a look at the committee and the important recommendations put forward by
them.

1. Balwant Rai Mehta Committee (1957)

Originally appointed by the Government of India to examine the working of two of its
earlier programs, the committee submitted its report in November 1957, in which the term
‘democratic decentralization’ first appears. The important recommendations are:

• Establishment of a three-tier Panchayati Raj system – Gram panchayat at village level

(direct election), Panchayat Samiti at the block level and Zila Parishad at the district
level (indirect election).

• District Collector to be the chairman of Zila Parishad.

• Transfer of resources and power to these bodies to be ensured.

The existent National Development Council accepted the recommendations. However, it

did not insist on a single, definite pattern to be followed in the establishment of these
institutions. Rather, it allowed the states to devise their own patterns, while the broad
fundamentals were to be the same throughout the country.

Rajasthan (1959) adopted the system first, followed by Andhra Pradesh in the same year.
Some states even went ahead to create fourtier systems and Nyaya panchayats, which
served as judicial bodies.

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 2. Ashok Mehta Committee (1977-1978)
The committee was constituted by the Janata government of the time to study Panchayati
Raj institutions. Out of a total of 132 recommendations made by it, the most important ones
are:

• Three-tier system to be replaced by a two-tier system.

• Political parties should participate at all levels in the elections.

• Compulsory powers of taxation to be given to these institutions.

• Zila Parishad to be made responsible for planning at the state level.

• A minister for Panchayati Raj to be appointed by the state council of ministers.

• Constitutional recognition to be given to Panchayati Raj institutions.

Unfortunately, the Janata government collapsed before action could be taken on these
recommendations.

3. G V K Rao Commitee (1985)

Appointed by the Planning Commission, the committee concluded that the developmental
procedures were gradually being taken away from the local self-government institutions,
resulting in a system comparable to ‘grass without roots’.

• Zila Parishad to be given prime importance and all developmental programs at that level
to be handed to it.

• Post of DDC (District Development Commissioner) to be created acting as the chief

executive officer of the Zila Parishad.

• Regular elections to be held

4. L M Singhvi Commitee (1986)

Constituted by the Rajiv Gandhi government on ‘Revitalisation of Panchayati Raj
institutions for Democracy and Development’, its important recommendations are:

• Constitutional recognition for PRI institutions.

• Nyaya Panchayats to be established for clusters of villages

Though the 64th Constitutional Amendment bill was introduced in the Lok Sabha in 1989
itself, Rajya Sabha opposed it. It was only during the Mr.Narasimha Rao government’s

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term that the idea finally became a reality in the form of the 73rd and 74th Constitutional
Amendment acts, 1992.

GRAM SWARAJ
The term ‘Panchayat Raj’ is relatively new, having originated during the British
administration. 'Raj' literally means governance or government. Mahatma Gandhi
advocated Panchayati Raj, a decentralized form of Government where each village is
responsible for its own affairs, as the foundation of India's political system. His term for
such a vision was "Gram Swaraj" or Village Self-governance. It was adopted by state
governments during the 1950s and 60s as laws were passed to establish Panchayats in
various states. Panchayati Raj is included in the State List of the Seventh Schedule of the
Constitution. It is the States that have been charged with the responsibility for devolution
of powers to the Panchayats. After independence, Community Development Programme
was started in 1952. But because it was not attached with the people, therefore it couldnot
prove to be a success story. People took it as a burden put on them by the government. A
team, under the leadership of Balwantrai Mehta tried to find out the cause for the failure of
this programme and came up with the inference that there should be an organisation at
village level, which would select the true beneficiaries and implement various government
programmes and schemes. This organisation would act as the representative of all the
villagers and should ensure the development of the village as well as participation of
villagers. In this way Balwantrai Mehta tried to achieve local self-government though
Panchayats (the organisation). In 1977, Ashok Mehta Committee was set up to review the
working of Panchayats. The committee found out that Panchayati Raj is the soul of
democracy and therefore it should be empowered with more authority. Those Panchayats
which formed after 1977 are known as Second Generation Panchayats. In West Bengal, the
Panchayats became more effective after accepting the suggestions made in this report.
During the decade of 1990, it was realized that without constitutional power, the self-
government cannot be fruitful. Therefore, the Central Government passed the 73rd
Constitutional Amendment Act in 1992, which became effective from 20th April 1993
(from the date of publication in the Gazette of India). The Constitution (73rd Amendment)

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Act, 1992 that came into effect in April 1993 brought about major reform in local
governance in the country. The Amendment Act of 1992 contains provision for devolution
of powers and responsibilities to the panchayats to both for preparation of plans for
economic development and social justice and for implementation in relation to twentynine
subjects listed in the eleventh schedule of the constitution.The panchayats receive funds
from three sources ie, local body grants, as recommended by the Central Finance
Commission, funds for implementation of centrally-sponsored schemes, and funds released
by the state governments on the recommendations of the State Finance Commissions. The
Ministry of Panchayati Raj was set up primarily to oversee the implementation of Part IX
of the Constitution, inserted by the Constitution (73r Amendment) Act, 1992, the
Panchayats Extension to the Scheduled Areas Act, 1996 (PESA), and Article 243ZD of Part
IX-A relating to District Planning Committees. Although the Panchayats have historically
been an integral part of rural life in India, these Acts have institutionalised the Panchayati
Raj Institutions (PRIs) at the village, intermediate, and district levels as the third tier of
government. The aim has been to combine social justice with effective local governance,
with an emphasis on reservation of seats for the deprived classes of population, including
of the leadership positions.

Gandhi mooted the idea of Panchayat Raj with a concept of self- sufficient and self-reliant
villages functioning as a Republic. In his dream, every village in India should be
characterized by a direct and participating democracy, endowed with all the powers that
enable it to function as a government in the true sense of the term. The power and functions,
which cannot be effectively discharged at the local level, should alone be transferred to the
government at the center. Thus, the policy in India shall take a pyramidic shape having a
broad and strong base at the village level and a gradually narrowing one towards the upper
hierarchy with delegation only of essential functions where a heavy splash on the water
creates the most intense wave at the initial circle, which gradually fades as the circle
expands. This is what Gandhi meant by "building from below". That is one aspect. On the
other, a republican village shall be self-sufficient and self-reliant in respect of its basic
necessities like food, clothing, shelter, employment, education, health, social security etc.
The modality of functioning of the village policy was also embroidered by Mahatma

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Gandhi in his various writings from which the essence that can be gathered consists in the
following precepts, namely: -

1. All adult persons, male or female, of the village shall have a say in the village
administration in order to make it truly participatory, as wide as the community.

2. All decisions in the village panchayat shall be on the basis of consensus, which eschew
out divisive approaches arising from consideration of party politics, religion, caste, creed,
class or culture.

3. "Antodaya" or unto the last, is the philosophy behind distribution of resources so that an
equitable distribution of scarce resources can be ensured.

4. All village disputes have to be settled within the four corners of the village and not to be
taken outside it so that the curse of litigation may not shatter the rural economy.

5. An approach of villagization to create community assets for the community to be

independent of outside resources for further development of the community and to inform
all measures for social security in the from of care for the old and infirm, widows and
destitute women, orphans and neglected children, handicapped and mentally retarded and
the unemployed and the helpless.

THE GANDHIAN CONCEPT

The Gandhian concept of political empowerment of people and the role of the state shine
in radiating brightness in an age of civilization by weapons of violence that arm the
centralized authority in state super powers to hold in ransom the future of mankind. The
nonviolent alternative around which the Gandhian concepts are woven has started claiming
serious attention of academicians, political thinkers, social activists, reformers and
visionaries. The landscape of human civilization has witnessed the dawn and decay of the
guiding principles of organization of government and state monarchy, capitalism,
socialism, communism and the like. But the basic issue of individual liberty and freedom
could not be resolved against the onslaught of centralized bureaucracy. The fundamental
tenet of democracy that lies in providing the objective conditions for human beings
attaining their best have also been substantially belied. This calls for a review of the
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ideologies that have carried the political institutions throughout the human history
particularly in the preceding centuries. If we take them one by one we may come to a
finding that human reasoning has been somewhat a prisoner of prevailing ideas on the
advocacy of stalwart thinkers who ruled the rest. But there had always been a protestant
voice, which was lost in the din and bustle of contemporaneous cacophony of ideas but
ultimately emerged with a strong appeal because of the truth inherent in it. We may
presently see that Mahatma Gandhi raised one such Protestant voice to traditional political
institutions and thoughts that received scant attention during his lifetime, but is gradually
assuming its legitimate place in the pedestal of thought where our political institutions are
destined to mount upon with gradual maturity.

These protestant ideas have much in their content to shape the contour of the freedom and
the power of people vis-a vis the state and that too on a nonviolent transformation.

The basic point of departure of the constitutional patterns conceived by Gandhi over that
of others who still dominate the field, is that Gandhian concepts are borne out truth,
nonviolence, love for all, while the others are borne out of mind of reasoning. And that
makes all the difference.

The utilitarian philosophers of the west enunciated the concept of "greatest good of the
greatest number" as the aim of the state policy. This has failed to take a holistic view of the
entire human race and ignored man, that is to say, each and every man, as the prime concern
of the state. A theoretical measurement of the greatest good for the greatest number is again
a thoroughly subjective deduction and consequently lacks the universality of acceptance.
As against this, Gandhi propounded the theory of Sarvodaya which means the rise of all:
that too in the fullest measure each man is capable of. This is a departure from traditional
thinking clamped upon the society and which held human reasoning within a closed shell.
Gandhi released it from that bondage and gave a definitional aim of the state, which leaves
no ambiguity. That is what the 21st century has to adopt if closed reasoning has to yield
place to universality.

In the next place, the rule of the majority has become a kernel to democracy. The entire
world has been fed with the idea that the majority must have its way, but remember, it is
not the exclusive majority that has always sought to be championed; even a simple majority

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is enough. The result is that the tyranny of the majority has gradually perverted into the
tyranny of the virtual minority. In a system evolved by a multi party functioning in the
political arena, a minority or even a simple caucus can impose itself on the rest. As against
this, Gandhi advocated decisions by consensus as the main thrust of democratic
functioning. At one time the idea was considered ridiculous, but it is gradually gaining
acceptance in situations while the alternative to consensus is grave and serious. Even the
United Nations at its Security Council has to decide everything by consensus since a single
veto can undo a decision. At the national level, the trend in all the countries is to strike a
political consensus amongst all the parties whenever grave national issues are involved.
Gandhi wanted this system to enter into our culture as a decision-making process in every
public affair so that the minutest may not feel ignored or tyrannized.

The Gandhian concept of consensus does not mean that there should not be any two
opinions on an issue or people must have identical thinking about everything. It only means
a process for resolution of all differences, a process which will substitute the worn-out
kernel of democracy with a fresh one with a view to richer fruition. He did not stop there;
he was quite aware that a very big assemblage, with heterogeneity beyond control, is not a
conductive arena where consensus can be reached. As we shall see presently, he advocated
a direct democracy or a participatory democracy rather than a representative one, which
has become ingrained in our present system.

Even since the Western scholars like John Stuart Mill and others upheld the case of
representative as the pillar of statecraft, the concept has gripped the whole world. As power
has concentrated more and more on centralized government, the tooth of the representative
government has sharpened all the more. The government by representation has, however,
a sad commentary everywhere. The representatives after elections hardly represent the
people but only themselves. It is common knowledge how the representatives of the people
have emerged as a class by themselves each having ambition of his own, each motivated
by the power have emerged as a class by themselves each having ambition of his own, each
motivated by the power to distribute favours, each lobbying for his own selfish end; and
collectively, as a class, the representatives trying to entrench themselves with more
privileges, authority and power. In the face of power struggle, the people are relegated to a
dumping lot, gradually losing the efficacy of the right to vote a right, no longer a right to
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make a choice on one's own, but content with the limited choice as left under the political
systems. The result is a negation of democracy at the grass-root level, which is conceived
in his philosophy of Gram Swaraj. He wanted all adult people male or female of the entire
village to be involved in the decision-making process on matters that concerned people at
large.

The next question is what should be the quality of "Village Republic' where a participatory
democracy of all people of envisioned. Here lies the crux of Gandhism. Where all systems,
capitalistic, socialistic or communistic, have inevitably resulted in centralization of power
and authority at the apex, the Gandhian concept of Gram Swaraj unleashed a compulsive
force in the opposite direction.

He believed in Panchayati Raj, which is certainly not the concept as enshrined in our
constitution, however proudly it may bear the nomenclature of a Panchayati Raj. The
Gandhian concept of Panchayati Raj is not a concept of decentralization but a pattern of
"building from below". The Panchayati system projected in our constitution with the latest
amendments is at best to be termed as a system to Panchayat administration of centralized
governmental power.

Swaraj warrants a stateless society; according to Gandhi, the overall impact of the state on
the people is harmful. He called the state a "soulless machine" which, ultimately, does the
greatest harm to mankind. The raison d'etre of the state is that it is an instrument of serving
the people. But Gandhi feared that in the name of moulding the state into a suitable
instrument of serving people, the state would abrogate the rights of the citizens and arrogate
to itself the role of grand protector and demand abject acquiescence from them. This would
create a paradoxical situation where the citizens would be alienated from the state and at
the same time enslaved to it which according to Gandhi was demoralizing and dangerous.
If Gandhi's close acquaintance with the working of the state apparatus in South Africa and
in India strengthened his suspicion of a centralized, monolithic state, his intimate
association with the Congress and its leaders confirmed his fears about the corrupting
influence of political power and his skepticism about the efficacy of the party systems of
power politics (due to which he resigned from the Congress on more than one occasion
only to be persuaded back each time) and his study of the British parliamentary systems
convinced him that representative democracy was incapable of meting out justice to people.
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So, he thought it necessary to evolve a mechanism to achieve the twin objectives of
empowering the people and 'empowering' the state. It was for this that he developed the
two-pronged strategy of resistance (to the state) and reconstruction (through voluntary and
participatory social action). Although the word "Swaraj" means self-rule, Gandhi gave it
the content of an integral revolution that encompasses all spheres of life. "At the individual
level Swaraj is vitally connected with the capacity for dispassionate self-assessment,
ceaseless self-purification and growing self-reliance". Politically swaraj is self-government
and not good government (for Gandhi, good government is no substitute for self-
government) and it means a continuous effort to be independent of government control,
whether it is foreign government or whether it is national. In other words, it is sovereignty
of the people based on pure moral authority. Economically, Swaraj means full economic
freedom for the toiling millions. And in its fullest sense, Swaraj is much more than freedom
from all restraints, it is self-rule, self-restraint and could be equated with moksha or
salvation.

adopting Swaraj means implementing a system whereby the state machinery is virtually
nil, and the real power directly resides in the hands of people. Gandhi said, "Power resides
in the people, they can use it at any time." This philosophy rests inside an individual who
has to learn to be master of his own self and spreads upwards to the level of his community
which must be dependent only on itself. Gandhi said, "In such a state (where swaraj is
achieved) everyone is his own ruler. He rules himself in such a manner that he is never a
hindrance to his neighbor"; and also "It is Swaraj when we learn to rule ourselves."

Gandhi explained his vision in 1946:

Independence begins at the bottom... A society must be built in which every village has to
be self sustained and capable of managing its own affairs... It will be trained and prepared
to perish in the attempt to defend itself against any onslaught from without... This does not
exclude dependence on and willing help from neighbours or from the world. It will be a
free and voluntary play of mutual forces... In this structure composed of innumerable
villages, there will be ever widening, never ascending circles. Growth will not be a pyramid
with the apex sustained by the bottom. But it will be an oceanic circle whose center will be

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the individual. Therefore the outermost circumference will not wield power to crush the
inner circle but will give strength to all within and derive its own strength from it.

Gandhi was undaunted by the task of implementing such a utopian vision in India. He
believed that by transforming enough individuals and communities society at large would
change. He said, "It may be taunted with the retort that this is all Utopian and, therefore
not worth a single thought... Let India live for the true picture, though never realizable in
its completeness. We must have a proper picture of what we want before we can have
something approaching it."

CONSTITUTIONAL PROVISIONS

 Directive principles:

Part IV of Indian Constitution deals with Directive Principles of our State Policy (DPSP).
The provisions contained in this Part cannot be enforced by any court, but these principles
are fundamental in the governance of the country and it shall be the duty of the State to
apply these principles in making laws.

The concept of Directive Principles of State Policy was borrowed from the Irish
Constitution. While most of the Fundamental Rights are negative obligations on the state,
DPSPs are positive obligations on the state, though not enforceable in a court of law.

ARTICLE 40: ORGANISATION OF VILLAGE PANCHAYATS

The State shall take steps to organize village panchayats and endow them with such powers
and authority as may be necessary to enable them to function as units of self-government.

 73RD AND 74TH AMENDMENT:

Article 40 of the Indian constitution directs the government to establish panchayats to serve
as institutions of local self-government. Most states implemented this directive principle
along the lines of the recommendations of the Balwantarai Mehta Commission Report.

The commission recommended a ‘three-tier’ system of Panchayati Raj institutions (PRIs),

viz. the popularly elected village council (gram panchayat) as the village level basic unit.
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Block (block is the larger sub unit of a district) council (or panchayat saphithi) at the Block
level, and the district council (or the Zilla Parishad) at the district level. Introduction of
PRIs was hailed as one of the most important political initiatives in India.

Main Problems:

The panchayat raj system has been experiencing ups and downs over the years. The
activities of these institutions are broad based but its resource base is very weak. In view
of this, the PRIs constituted in various states could not live up to the expectations of the
people. Deficient in funds and authority, the panchayats in most states were largely inactive
until late 1970s.

Some of the major problems and shortcomings that adversely affected the functioning of
these institutions are:

i. Elections not being held regularly;

ii. Lack of adequate transfer of powers and resources;
iii. Lack of power to generate their own resource; and iv. Non-representation
of women and weaker sections in the elected bodies.

In 1989, the Government of India took two major initiatives to enhance the role of
panchayats. First, it initiated the Jawahar Employment Plan (Jawahar Rozgar Yojana)
which provided funding directly to village councils to create jobs for unemployed through
public works.

Second, it also proposed the 64th Constitution Amendment Bill to make it mandatory for
all states to establish a three-tiered (village, block and district) system of Panchayats in
which representatives would be directly elected for five year terms. Panchayats were to be
given expanded authority and funding over local development efforts. Despite the popular
appeal of transferring power to panchayats, the 64 th amendment bill was rejected by Rajya
sabha.

 73rd and 74th Constitution Amendments:

Given its far-reaching consequences, the 73 rd Amendment (together with the 74th) is rightly
called ‘a silent revolution’ for various reasons. First of all, the PRIs no longer operate at
the whim of state governments and their laws. They are now a part of the Constitution and

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enjoy the status of institutions of self-government, as parliament at the federal level and
legislative assemblies at the state level.

The amendment prescribes regular elections every five years and election within six
months of the dissolution of any PRI. To ensure free, fair, and timely elections there is a
provision for the setting up of state election commission. The most revolutionary provision
is the reservation of one-third of the seats for women in local bodies, along with reservation
of seats for scheduled castes and scheduled tribes in proportion to their regional
populations.

The amendment lays down 29 functions to be entrusted to the PRIs. To maintain a

democratic ethos, popular accountability, and transparency, the amendment emphases the
need for periodic meetings of the gram sabha, composed of all adults in each village. These
meetings will approve ongoing programmes and financial allocations. In brief, the
amendment visualises the allocation of funds, functions, and functionaries to these bodies
to ensure genuine and effective democratic decentralisation.

The Constitutional Amendment Bill came into effect from April 24, 1994. Principally, it
gave:

i. The panchayats constitutional status (previously panchayat matters were

considered as state subjects);

ii. An institionalised three tier system at village, block and district levels;

iii. The amendment stipulated that all panchayat members be elected for five
year term in the elections supervised by the state election commission.

 Women’s participation in local governance:

There were already some women in local government prior to the passing of the 73 rd and
74thAmendments. But they were few and far between. In most cases the state laws
prescribed at least one or two seats for women in the old-style PRIs. Very often these seats
were filled though nomination.

The nominees, invariably, were members of elite families belonging to higher castes and
owning substantial land, thus enjoying high status in terms of family, cast, and class. These
women were usually related to established political leaders. As symbols of tokenism, they

16
rarely took active interest in the functioning of the PRIs. The new system of reservation
and competitive elections based on adult franchise changed this situation radically.

When the provisions for reservations of seats for women were being debated in parliament,
several members were doubtful that such large numbers of women would come forward to
contest these seats. But these doubts proved to be wrong.

In total, for over one million seats reserved for women in all the local bodies, more than
five million women candidates contested. Thus, on an average, there were five women
candidates contesting each seat. Moreover, some women condition won unreserved or
general seats, defeating their male rivals. Of course, such cases were not many, but they
were no less significant.

It needs to be mentioned that the reservation of seats for women (and for SCs and STs)
concerns not only members but also office-bearers. Thus, not only one-third of elected
members but one-third of sarpanches or chairpersons have also to be women.

In the country as a whole, there are 231,630 gram panchayats (village councils). Over
77,210 of them now have women as sarpanches. At the intermediate level, there are 5,912
taluka (or block/mandal) panchayat samitis. More than 1,970 of them have women
sabhapatis or heads and of the 594 zilla parishads” (district councils) 200 have women
presidents. Thus, in the country as a whole, about one million women now occupy positions
as members or heads in rural and urban local government bodies. This may be unique in
the world.

There are variations among states in the magnitude of Women’s representation. While most
states manage to meet the constitutional target of 33 per cent seats for women, in some this
proportion has been exceeded. For example, in Karnataka, women occupy 43.6 per cent
seats in local bodies. This means a large number of women have managed to win general
(unreserved) seats, defeating rival male and female candidates. This suggests a highly
significant trend for the future.

This statutory reservation for women has provided an opportunity for the formal
involvement of women in the development through political process at the grass roots level
thereby enabling them to influence the decisions in the local governments. Further, the state
legislature may:

17
i. Authorize a panchayat to levy, collect and appropriate such taxes, duties,
tolls and fees in accordance with laid down procedures and limits;

ii. Assign to a panchayat such taxes, duties, tolls and fees levied and selected
by the state government to be used for specific purposes subject to specified
conditions and limits; and

iii. Provide grants-in-aid to the panchayats from the consolidated fund of the
state.

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 UNIT: 2

STRUCTURE AND POWERS OF LOCAL BODIES

Local government is a form of public administration which in a majority of contexts, exists

as the lowest tier of administration within a given state. The term is used to contrast with
offices at state level, which are referred to as the central government, national government,
or (where appropriate) federal government and also to supranational government which
deals with governing institutions between states. Local governments generally act within
powers delegated to them by legislation or directives of the higher level of government. In
federal states, local government generally comprises the third (or sometimes fourth) tier of
government, whereas in unitary states, local government usually occupies the second or
third tier of government, often with greater powers than higher-level administrative
divisions.

The question of municipal autonomy is a key question of public administration and

governance. The institutions of local government vary greatly between countries, and even
where similar arrangements exist, the terminology often varies. Common names for local
government entities include state, province, region, department, county, prefecture, district,
city, township, town, borough, parish, municipality, shire and village.

According to Census of India. 1991, there are 3255 Urban Local Bodies (ULB)s in the
country: classified into four major categories of

1. Municipal Corporation

2. Municipalities (Mumcipal Council, Municipal Board, Municipal Committee)

3. Town Area Committee

4. Notified Area Committee

The municipal corporations and municipalities are fully representative bodies, while the
notified area committees and town area committees are either fully or partially nominated
bodies.

19
As per the Indian Constitution, 74th Amendment Act of 1992, the latter two categories of
towns are to be designated as municipalities or nagar panchayats with elected bodies. Until
the amendments in state municipal legislations, which were mostly made in 1994,
municipal authorities were organised on an Latin: ultra vires (beyond the authority) basis
and the state governments were free to extend or control the functional sphere through
executive decisions without an amendment to the legislative provisions.

After the 74th Amendment was enacted, there are only three categories of urban local
bodies:

1. Mahanagar Nigam (Municipal Corporation)

2. Nagar Palika (Municipality)
3. Nagar Panchayat (Notified Area Council, City Council)

There be a Nagar Panchayat for transitional areas i.e. an area in transition from rural to
urban, a municipality for a smaller urban area and a municipal corporation for a larger
urban area. Article 243Q of the 74th Amendment requires that municipal areas shall be
declared having regard to the population of the area, the density of population therein, the
revenue generated for local administration, the percentage of employment in non-
agricultural activities, the economic importance or such other factors as may be specified
by the state government by public notification for this purpose.

Among all urban local governments, municipal corporations enjoy a greater degree of fiscal
autonomy and functions although the specific fiscal and functional powers vary across the
states, these local governments have larger populations, a more diversified economic base,
and deal with the state governments directly. On the other hand, municipalities have less
autonomy, smaller jurisdictions and have to deal with the state governments through the
Directorate of Municipalities or through the collector of a district. These local bodies are
subject to detailed supervisory control and guidance by the state governments.

 Mahanagar Nigam (Municipal Corporation)

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Mahanagar Nigam a.k.a. (Municipal Corporation) in India are state government formed
departments that works for the development of a Metropolitan city, which has a population
of more than 1 Million. The growing population and urbanisation in various cities of India
were in need of a local governing body that can work for providing necessary community
services like health centres, educational institutes and housing and property tax.

They are formed under the Corporations Act of 1835 of panchayati raj system which mainly
deals in providing essential services in every small town as well as village of a district/city.
Their elections are held once in five year and the people choose the candidates. The largest
corporations are in the four metropolitan cities of India, namely Delhi, Mumbai, Kolkata
and Chennai. These cities not only have a large population, but are also the administrative
as well as commercial centres of the country.

 Nagar Palika (Municipality)

In India. a Nagar Palika or Municipality or Nagar Nigam is an urban local body that
administers a city of population 100,000 or more. However, there are exceptions to that, as
previously nagar palikas were constituted in urban centers with population over 20,000 so
all the urban bodies which were previously classified as Nagar palika were reclassified as
Nagar palika even if their population was under 100,000. Under the Panchayati Raj system,
it interacts directly with the state government, though it is administratively part of the
district it is located in. Generally smaller district cities and bigger towns have a Nagar
palika. Nagar palikas are also a form of local self-government, entrusted with some duties
and responsibilities, as enshrined and guided upon by the Constitutional (74th
Amendment) Act, 1992.

The members of the Nagar palika are elected representatives for a term of five years. The
town is divided into wards according to its population, and representatives are elected from
each ward. The members elect a president among themselves to preside over and conduct
meetings. A chief officer, along with officers like an engineer, sanitary inspector, health
officer and education officer who come from the state public service are appointed by the
state government to control the administrative affairs of the Nagar Palika.

21
  Nagar Panchayat (Notified Area Council)

A Nagar Panchayat or Notified Area Council or City Council is a form of an urban political
unit in India comparable to a municipality. An urban centre with more than 11,000 and less
than 25,000 inhabitants is classified as a "Nagar Panchayat".

Each Nagar Panchayat has a committee consisting of a chairman with ward members.
Membership consists of a minimum of ten elected ward members and three nominated
members. The N.A.C. members of the Nagar Panchayat are elected from the several wards
of the Nagar Panchayat on the basis of adult franchise for a term of five years. There are
seats reserved for Scheduled Castes, Scheduled Tribes, backward classes and women. The
Councillors or Ward Members chosen by direct election from electoral wards in the
Nagar Panchayat.

 URBAN LOCAL GOVERNMENT

As Panchayati Raj System is meant for rural area, similarly there are institutions of urban
local government. There are three types of urban local bodies -

(a) Municipal Corporations for the big cities,

(b) Municipal Councils for all other cities with smaller population and

(c) Nagar Panchayats for transitional areas (semi urban areas).

But a significant difference between Panchayati Raj Institutions (PRIs) and the urban local
bodies is that while the PRIs are closely linked with one another, the urban local bodies are
independent. In one State there may be all the three types of urban local bodies: in one big
city a Municipal Corporation, in another small city a Municipal Council and in yet another
small town a Nagar Panchayat. But they are not linked with one another.

It was during the British colonial rule that the first urban local government came into
existence in 1688 when a Municipal Corporation was formed in the city of Madras (now
known as Chennai). Later on, similar bodies were formed for the administration at Calcutta
(Kolkata) and Bombay (Mumbai). At that time these municipalities were formed to help in
the matter of sanitation and prevent epidemics. These Local bodies also had a few civic
functions like managing water supply and drainage. But theses bodies were not given the

22
required powers, finance and authority. Initially most of the members were nominated. Our
national leaders also had felt the importance and need of such an organization for the local
administration and linked these bodies to the planned development of the country. But
nothing fruitful could be achieved without finance and the finance was missing. But even
then this system proved to be an effective tool of administration. During the British rule
many changes were made in urban local bodies. Gradually certain structural changes were
made, powers of the local bodies were enhanced and some funds were also provided.

After independence four types of urban local bodies were functioning:

(1) Municipal Corporations,

(ii) Municipalities,

(ii) Town Area Committees and

(iv) Notified Area Committees.

But the 74th Constitutional Amendment 1992 brought about major changes in the system
of urban local government. Now three types of urban local governments are functioning:
(a) Municipal Corporations for the big cities,

(b) Municipal Councils for smaller cities and

(c) Nagar Panchayats for those areas that are in transition from rural areas to urban areas.

 The 74th Constituional Amendment 1992

As stated above, the 74th Constitutional Amendment Act 1992 brought about significant
changes in the structure and functioning of urban local government. The following points
are noteworthy: constitution of urban local bodies (namely, Municipal Corporation,
Municipal Council, and Nagar Panchayat) in every Indian State; constitution of Wards
Committees within the territorial area of a municipality, to ensure people's participation in
civic affairs at the grass-root level; regular and fair conduct of municipal elections by State
Election Commissions: provision for supersession of municipal governments for not more
23
than 6 months; adequate representation of weaker sections (i.e., Scheduled Castes,
Scheduled Tribes, Backward Classes) of the society and women in municipal governments
through reservation of seats: specification by law, through the State Legislatures, of the
powers (including financial) and functional responsibilities to be entrusted to
municipalities and wards committees: constitution of State Finance Commissions. once in
every 5 years, to review the financial position of municipalities and to make
recommendations on the measures needed to improve their financial position: and
constitution of a District Planning Committee at the district level and a Metropolitan
Planning Committee in metropolitan areas of every State, for the preparation and
consolidation of development plans.

 Municipal Corporations

A. Composition

Municipal Corporations are established in big cities according to the provisions made in
the Acts enacted by the State Legislatures. The Councillors of Municipal Corporations are
elected for 5 years. The elected Councillors elect one of them as Mayor annually. The
Mayor is known as the first citizen of the city. The 74th Constitutional Amendment has
provided for reservation of not less than 1/3rd of the total seats for women. There is also a
provision of reservation of seats for Scheduled Castes, Scheduled Tribes and other weaker
sections in proportion to their population. Out of these reserved seats for Scheduled Caste
and Scheduled Tribes, one-third would be reserved for women belonging to these
communities. In the event of dissolution of Municipal Corporation, the elections will be
held within six months.

There is an official post of Municipal Commissioner, who is the Chief Executive Officer
and is appointed by the State government. In case of Union Territories like Delhi it is done
by the Central government.

B. Functions of the Municipal Corporations

The main functions of the Municipal Corporation are as follows:

24
1. Health and Sanitation: Responsible for cleanliness of the city, disposal of garbage;
maintenance of hospitals and dispensaries; promoting and conducting vaccination drives:
checking of adulteration etc.

2. Electricity and Water Supply: Provision and maintenance of street lights, supply of
electricity. supply of safe drinking water; construction of infrastructure and providing
facilities for water supply, maintenance of water tankers etc.

3. Educational: Establishment of primary schools, provision of mid-day meals and other

facilities for the children.

4. Public works: Construction, maintenance and naming of roads; framing rules for the
constructions of houses, markets, restaurants and hotels; removing of encroachments and
demolition of dangerous buildings.

5. Miscellaneous functions: Maintaining record of Births & Deaths: provision and

maintenance of cremation grounds/burial grounds, night shelters: making arrangements of
scooter & taxi stands and public facilities.

6. Discretionary functions:

(a) Entertainment: Provision of parks, auditoriums etc.;

(b) Cultural: Organizing music, dramas, painting and other art shows; and activities like
maintenance of libraries and museums:

(c) Sports Activities: Provision of play grounds for various games and also arranging sports
competitions & tournaments;

(d) Welfare Services: Setting up and maintaining Community halls; running public
distribution system; implementing family welfare schemes and also schemes for the
welfare of Scheduled Castes, Scheduled Tribes & backward classes.

C. Main Functions of Mayor

Mayor is the elected as the head of the Municipal Corporation and performs the following
important functions:

 presides over the meetings of the Corporation and maintains decorum and
discipline in the meetings:
25
  acts as a link between Councillors and the State government;
 receives foreign dignitaries visiting the city.

D. Sources of Income of Municipal Corporation

Like Panchayati Raj System, Muncipal System also requires funds for the development
and welfare activities in its area. Provision is made in the Municipal Act for generating the
required funds. Some of the sources of income are as follows:

Income from taxes: Municipal Corporation imposes taxes on various items such as house
tax, entertainment tax, tax on hoardings and advertisements, registration fees, tax on
building plans etc.

Other fees and charges: These include water supply charges, electricity charges, sewer
charges, license fee from shop keepers, and toll tax and octoroi duty.

Grants-in-Aid: State government and Union government provide grants-in-aid for various
projects and programmes related to development.

Income from Rents: Corporations rent out the properties and get rent for various shops,
kiosks, community centres, Barat Ghars and various sites for fairs, marriages or
other exhibitions.

3 Municipal Councils

A. Composition

Cities which do not have very large population have Municipalities known as Municipal
Councils to look after the local cities, their problems and developmental work. After the
74th Amendment, the constitution of Municipalities is obligatory for every concerned city.
Every Municipal Council has Councillors who are elected by the adult voters of the city
for 5 years. Only those persons can be elected as Councillors who fulfill the conditions laid
down by the State Election Commission.

26
If in any case, the Municipal Council gets dissolved before completing the full term of 5
years. the elections for a new Municipal Council will have to be held within six months.
Chairperson or President of the Municipal Council is elected by the Councillors from
among the elected members. Chairperson holds the office till he/ she enjoys the confidence
of the majority of the elected members. Every Municipal Council has an Executive Officer
who is appointed by the State government. He/ She looks after the day-to-day work and
also the administration. The Health Officer, Tax Superintendent, Civil Engineer are the
other important officers.

B. Functions of the Municipal Council

Functions of the Municipal Council are as follows:

1. Health and Sanitation - Managing cleanliness of the town, disposal of garbage,

prevention of sale of unhygienic and adulterated food items, and maintenance of
dispensaries or hospitals:

2. Electricity and Water Supply Ensuring supply of electricity and safe drinking water,
maintaining water tanks and also water tankers:

3. Education - Maintaining and running of primary schools and literacy centers.

4. Birth and Death Records Keeping the records regarding registration of birth and deaths
in the city/town and also issuing the certificates for the same:

5. Public Works - Paving of streets, repairing and maintenance of municipal roads,

construction and maintenance of Barat Ghars, Community Halls, Markets,
Public facilities etc.

C. Sources of Income

No work can be done without money. Municipal Councils have got different sources of
income. These sources can be grouped as under:

 Taxes: Taxes on properties, vehicles, entertainment and advertisement;

 Rents and fees/charges: Charges for water supply, sewer system:
 Licenses fees, Rents of the community Halls, Barat Ghars and Shops etc.:
27
  Grants from the State government:
 Fines: Fines from the tax offenders, law breakers, on encroachments etc.

 Nagar Panchayats

An urban centre with more than 30,000 and less than 100,000 inhabitants has a Nagar
Panchayat. However, there are some exceptions. All the previous Town Area Committees
(urban centres with a total population of more than 5,000 and less than 20,000) are
designated as Nagar Panchayats. It is composed of a Chairperson and Ward Members. It
may have a minimum of ten elected Ward Members and three nominated Members. Like
other municipal bodies. Nagar Panchayat is responsible for (a) Cleanliness and disposal of
garbage: (b) Supply of drinking water. (c) Maintenance of public amenities like street
lights, parking space and public conveniences: (d) Setting up and maintaining fire services;
and (e) Registration of deaths and births. Its sources of income are: Taxes such as house
tax, water tax, toll tax; License fees and fee for approving building plans; Rents collected
by renting Barat Ghars and other properties, and Grant-in-Aid from the State government.

Direct democracy and grass root planning

Direct democracy, classically termed pure democracy, is a form of democracy and a theory
of civics in which sovereignty is lodged in the assembly of all citizens who choose to
participate. Depending on the particular system, this assembly might pass executive
motions, make laws, elect or dismiss officials, and conduct trials. Direct democracy stands
in contrast to representative democracy, where sovereignty is exercised by a subset of the
people, usually on the basis of election. Deliberative democracy incorporates elements of
both direct democracy and representative democracy.

The earliest known direct democracy is said to be the Athenian democracy in the 5th
century BC, although it may be argued that it was not true democracy because women and
slaves were excluded from it. The main bodies in the Athenian democracy were the
assembly, composed by male citizens, the boule, composed by 500 citizens chosen annually
by lot, and the law courts composed by a massive number of juries chosen by lot, with no
judges. Out of the male population of 30.000, several thousand citizens were politically
28
active every year and many of them quite regularly for years on end. The Athenian
democracy was not only direct in the sense that decisions were made by the assembled
people, but also in the sense that the people through the assembly, boule and law courts
controlled the entire political process and a large proportion of citizens were involved
constantly in the public business. Modern democracies do not use institutions that resemble
the Athenian system of rule.

More recent direct democracy proposals tend to focus on voting schemes (usually high
tech) that would allow widespread, virtually continual voting by millions of citizens on
whatever proposals surfaced. While useful in building up a buffet of voting methodologies
for possible use in other contexts, the lack of organized public deliberation about the issues
in question makes such proposals look more like opinion polls than exercises of citizenship.
Wise solutions to public problems won't likely come off the top of a hundred million heads.

A third approach to direct democracy -- the "initiative process" adapted by a number of

states allows anyone to propose a law which, if they can get enough of their fellow citizens
to co- sponsor it (usually by signing petitions), can be voted on by the entire electorate in
the next election. While apparently empowering the grassroots, this process has in many
instances been co-opted by special interest groups, especially monied interests who put
initiatives on the ballot to increase their wealth and power in the guise of public benefit or
to confuse voters about competing initiatives that actually come from the grassroots. Since
the monied interests have more resources to hire petition-signature-gatherers and to run
powerful advertising campaigns based on extensive marketing surveys and expert PR
advice (sometimes very devious, last minute blitzes that can't be answered before the
election), there's a real question about how democratic existing initiative processes are.
Furthermore, such processes offer no more deliberation than the unproductive media
debates that characterize most political campaigns.

The national level plan for improving the functioning of Panchayati Raj Institutions is
chalked out in the roadmap for Panchayati Raj. It has been noted that due to poor resource
base and economic activity in rural areas, the Panchayats would continue to depend on
State/Central transfers, grants etc. The Union Cabinet of the Government of India approved

29
50% reservation for women in Panchayati Raj Institutions. The Indian states which have
already implemented 50% reservation for women in Panchayati Raj Institutions are
Uttarakhand, Madhya Pradesh. Bihar, and Himachal Pradesh. As of 2011, the states of
Andhra Pradesh, Chhatisgarh, Jharkhand, Kerala, Maharastra, Orissa, Rajasthan and
Tripura also reserve 50% of their posts for women.

A democratic form of government must be sustained by a system of vigorous local self-

government institutions. Local government institutions provide and opportunity to the
people to participate freely and actively in the government which they formulate for their
respective areas. These are necessary to encourage and foster initiative, independence, and
enterprise on the part of the people. While inaugurating the first local self government
minister's conference in 1948, our Late Prime Minister Pt. Jawaharlal Nehru said "local
government is and must be the basis of any true system of democracy. Democracy at the
top may not be a success unless built on its foundation from below". Prof. Laski says "Local
government offers the best opportunity to the people to bring local knowledge, interest and
enthusiasm to bear on the solution of their problems.

Before the amendments were passed decentralisation became a policy concern during the
colonial period and for a brief period the Constituent Assembly debates in the late 1940s
suggested the possibility of developing an alternative structure of government. In the post-
independence period, thinking about decentralization benefited from the deliberations of
several committees, including the three chaired by Balwant Rai Mehta, Asoka Mehta, and
L.M. Singhvi. In the late 1980s, both the Rajiv Gandhi and V.P. Singh governments
introduced constitutional amendment bills that were unsuccessful. These efforts reached
fruition in the 1990s, taking the form of constitutional amendments during the regime of
P.V. Narasimha Rao. When they were enacted, they were therefore the product of a century
or more of history. A vast intellectual resource on decentralization was created which
informed the framing of the Amendments. It is worth recognizing this intellectual history
because many of the solutions on offer have long been debated. There is a storehouse of

30
information on local government, on experiments that failed and others that were
successful.

The 73rd Amendment Act was related to village local self-government and inserted Part
IX containing Articles 243 to 243-0 in the Constitution. The 74th Amendment Act was
related to municipal local government and it inserted Part IX A containing Articles 243P to
243ZG in the Constitution. As per the provisions, the Panchayati Raj Institutions would
have a three-tier structure viz at the village level, the district level and the intermediate
level standing between the village and district panchayats in States with population above
20 lakh. The members of the Panchayat at all levels were to be chosen by direct election
from territorial constituencies in their respective areas. A State Election Commission was
to be constituted for the conduct of free and fair elections. Seats are reserved for Scheduled
Castes and Scheduled Tribes in proportion to their population. One third of all seats,
including those reserved for SC/ST, are reserved for women. These seats can be allotted by
rotation to different constituencies in a Panchayat. A State may provide by law for similar
reservation of the offices of chairpersons. Every Panchayati Raj Institution was to have
tenure of five years and if dissolved earlier elections must take place within six months.
Any person above the age of 21 years and qualified to become a member of State
Legislature and can become a member of a Panchayat. Articles 243G-243H provides the
State government with the requisite authority to confer powers to the Panchayati Raj
Institution. The Eleventh Schedule of the Constitution gives the Panchayati Raj Institution
control over 29 items such as land improvement, minor irrigation, animal husbandry,
fishery, women and child development. A State Finance Commission was to be appointed
by the state government every five years to review the financial position of the Panchayati
Raj Institution.

The significance of local self government lies in the numerous benefits that it bestows upon
the inhabitants of the areas it operates in. It functions as a school of democracy wherein
citizens are imparted political and popular education regarding issues of local and national
importance. It develops qualities of initiatives, tolerance and compromise so essential for

31
the working of democracy. It not only relieves congestion at the centre but it also checks
the increasing power of democracy. It stands positively for the distribution and diffusion
of power leading to administrative de- concentration and de- centralization. Being closer
to the original base, it finds solution for local problems more efficiently. It provides
facilities for minimum basic needs. It also serves as a reservoir of talents for local and
national leadership. Government of India formulated E-Panchayat Mission Mode Project
for e-enablement of all the Panchayats, to make their functioning more efficient and
transparent. Applications except Geographic Information System (GIS) namely Area
Profiler, Service Plus, Asset Directory, Action Soft, Social Audit and Trainings
Management have also been launched on the occasion of National Panchayat Day. Under
the National Panchayat Portal dynamic websites have been created for Panchayats of
seeing an active content upload. Local Governance Directory captures details of local
governments and assigns unique code to all Panchayats to ensure interopertability amongst
all applications of Panchayat Enterprise Suite. It also maps Panchayats with Assembly and
Parliamentary Constituencies.

In various Centrally Sponsored Schemes and Additional Central Assistance the Panchayati
Raj Institutions have been given centrality. Saakshar Bharat Mission, is a programme
aimed at creating a Literate Society through a variety of teaching learning programmes for
rion-literate and neo-literate of 15 years and above, for which the program involve
community Panchayati Raj Institutions and women self-help groups in its endeavour. Each
panchayat would have a Lok Shiksha Kendra with a male and a female prerak, elected by
the panchayat, to monitor the volunteers under the mission. Backward Regions Grant Fund
(BRGF) provides untied grants to the Panchayats in the backward regions in order to reduce
development deficits of the country, with the requirement that the District Plans for
utilization of the grant be prepared by the involvement of the Gram Sabhas. Panchayat
MahilaRsEvam Yuva Shakti Abhiyan aims to enable women and youth Panchayat leaders
to come together to articulate their problems as women Panchayat Leaders. E-Panchayat
for computerizing the databases, accounts and other functions of the Gram Panchayats for
accountability and transparency. Panchayat Empowerment & Accountability Incentive
Scheme To recognize and incentivize the efforts of Panchayats with respect to transparency,
32
accountability and efficiency and of States with respect to devolution of funds, functions
and functionaries to Panchayats. Rural Business Hubs (RBH) aims to assist the Panchayats
to empower rural labour productivity by providing forward backward linkages with
technical assistance in Public-Private-Partnership. Mahatma Gandhi National Rural
Employment Guarantee Act (MGNREGA) where Panchayats at district, intermediate and
village levels are the principal authorities for planning and implementation of MGNREGA.
Rashtriya Gram Swaraj Yojana (RGSY) aims at capacity building and training of the
elected representatives of Panchayati Raj Institutions as well as the Functionaries.

Symbolizing democracy by local government, GDH Cole ideologist point out "democracy
is nothing unless it means, in the last resort, letting the people have their own way, not only
in the mass, by means of an aggregate vote in a nation-wide scale, but also in their lesser
groups and societies of which the greater societies are made up, and through which it is
made articulate in such a way that the less clamorous voices can be heard". The importance
of local self government has all the more increased with the advent of Indian independence.
They are expected not only to provide for the basic civic amenities for the safety and
convenience of the citizens but also mobilize local support and public cooperation for the
implementation of various programmes of welfare. Another benefit of the local government
is that the transmission of power from bureaucrats to the democratically formed local
government has positively checked the influence of bureaucracy. Thus it can be said that
the local government ensures close relationship between the people and the higher level of
governments through this device of communication.

Municipalities and corporations

 Historical evolution from the British era

The first municipal mechanism created during British rule was the Municipal Corporation
introduced in Madras (Chennai today) in 1688, which was followed by municipal
corporations in Bombay (Mumbai today) and Calcutta (Kolkata today) by 1762.
Subsequently. Lord Mayo's Resolution of 1870 called for the introduction of an elected
33
President in the municipalities. The current form and structure of municipal bodies is based
on Lord Ripon's Resolution on local self- government adopted in 1882. Since then the
structure of municipal bodies has essentially remained the same, even though the urban
areas multiplied along with their increasingly complex problems.

Statutory provision for creating a municipal unit is available in two forms. First, by statute
that provides for the establishment of a municipal authority, as for instance in the form
taken in the case of the Bombay Municipal Corporation Act in1888, the City of Nagpur
Corporation Act of 1948 and the Delhi Municipal Corporation Act of 1957. The other route
is through statutory provision empowering State Government creation. The Bombay
Provincial Municipal Corporations Act of 1949 and the Gujarat Municipalities Act of 1964
are both examples of the latter. Generally, these statutes confer significant control and
supervisory powers on the state government. In this context, it can be said they are creatures
of state government.

Municipal election provisions in different states are not uniform. In some, arrangements
for election are made by the state government, while in others Municipal Commissioners
(executive officers) make the arrangements. Prior to the passage of the 1992 Act, urban
local government was defined generally by the Municipal Corporations. Municipal
Councils, Town Area Committees and Notified Area Committees. In this context, the
structure and composition of municipalities varied considerably, with wide differences in
definition and structure between states. Hence, the 1992 Act attempted to instil some
uniformity in the constitution of the municipal bodies by classifying them as Municipal
Corporations for large urban areas, Municipal Councils for smaller urban areas and what
are termed Nagar Panchayats, suburban government bodies.

 The 74th Constitutional Amendment Act

The 1992 Act provided for the Twelfth Schedule which listed the functions of urban local
units. along with their planning, regulation and development powers. It made provision for
ward committees in areas exceeding 300,000 and the specification of the powers and
responsibilities of municipal units and the ward committees. There is a requirement made

34
therein for the holding of timely periodical elections and for the reconstitution of a
municipal government within six months, should it be dissolved for any reason.

Sources of municipal finance and their periodic review by a statutorily constituted State
Finance Commission were also provided for by the Act, which also made it obligatory for
the Central Finance Commission to recommend steps to support state resources for the
assistance of municipal governments. The Act also provided for reservation of one-third of
the seats for women and scheduled castes in municipal bodies. State Governments were to
adopt the 74th Constitutional Amendment Act with reference to their respective municipal
bodies to effect its purpose within their jurisdictions.

Unlike rural bodies, urban government was not provided with a federated systemic
framework (which is ironic, because since the 1950s outside India it has been urban regions
that have seen the rising use of integrated federated systems). However, they do have direct
access to state governments, something that is not open to rural governments which have
indirect access through their relevant state bureaucratic representative the District Collector
and Divisional Commissioner.

 Divisions of Powers

Elected, Nominated and Administrative

The 1992 Act provides for elected and nominated councillors. According to the size of the
population of a particular unit, the number of elected councillors varies. Nominated
councillors are to be chosen by the elected councillors for their special knowledge or
experience in municipal administration.

The Municipal corporation

 Mayor and councilors

This model is also known as the Commissioner system, taking its name from the role of
the city administrator who is generally a state-appointed officer. In such a system the Mayor

35
in the Municipal Corporation is usually chosen through indirect election by the councillors
from among themselves for a term of one year, which is renewable.

The Mayor generally lacks executive authority. This is due to the British roots of the system
that remain from the time when the administrator was the representative of the colonial
power, not to the fact that it operates under a council-manager system (the subject of
another article by this author on this website) whereby the executive would be accountable
to the elected representatives. In this context, the indirect election of the Mayor combined
with his short one- year tenure renders the role little more than that of a figurehead.

Councillors act by committee, the most powerful being the Standing Committee with its
role of the steering committee exercising executive, supervisory, financial and personnel
powers. It is composed of elected members varying in number between seven and sixteen
through a system of proportional representation of councillors.

 The executive arm of the corporation

The Municipal Commissioner is the chief Executive Officer and head of the executive arm
of the Municipal Corporation. All executive powers are vested in the Municipal
Commissioner. Although the Municipal Corporation is the legislative body that lays down
policies for the governance of the city, it is the Commissioner who is responsible for the
execution of the policies. The Commissioner is appointed for a fixed term as defined by
state statute. The Commissioner's term in office can be extended or reduced. The powers
of the Commissioner are those provided by statute and those delegated by the Corporation
or the Standing Committee. This is the closest that India has come to the council-manager
system, with the critical difference of accountability of the manager to the elected arm of
government; and the fact that the power of the unelected executive arm of government is
thus weighted in its favour.

36
  Municipal councils

Municipal Councils are units designated for smaller areas than the Municipal Corporations.
State statutes govern Municipal Councils. The Municipal Council, the President elected by
the councillors from among themselves, the Committees and the Executive/Chief Officer
constitute the structure of this type of municipal government. The size of each Municipal
Council varies from state to state, with the municipal acts prescribing both the maximum
and the minimum number of councillors with terms in office varying from three to five
years. In some states the council Presidents are elected directly by the citizens. In a number
of states the term of the President varies from one to three years and is not coterminus with
that of the council.

The President has a substantive position in the municipal administration and enjoys
significant authority and power both in the deliberative and executive arms of the
municipality. The powers and functions of the Municipal Council Committees are the same
as those of the Municipal Corporation. In most states the state government appoints the
Executive Officer. In some states the council makes the appointment, but his or her
independence has been confirmed by making removal from office difficult - generally by
a three-quarter majority vote.

 Local government functions

All municipal acts in India provide for functions, powers and responsibilities to be carried
out by the municipal government. These are divided into two categories, obligatory or
discretionary.

Obligatory functions include: supply of pure and wholesome water; construction and
maintenance of public streets: lighting and watering of public streets; cleaning of public
streets, places and sewers: regulation of offensive, dangerous or obnoxious trades and
callings or practices; maintenance or support of public hospitals; establishment and
maintenance of primary schools: registration of births and deaths; removing obstructions

37
and projections in public streets. bridges and other places; and naming streets and
numbering houses.

Discretionary functions include: laying out of areas; securing or removal of dangerous

buildings or places, construction and maintenance of public parks, gardens, libraries,
museums, rest houses, leper homes, orphanages and rescue homes for women; and public
buildings: planting and maintenance of roadside and other trees; housing for low income
groups; conducting surveys, organising public receptions, public exhibitions, public
entertainment; provision of transport facilities with the municipality: promotion of welfare
of municipal employees.

Some of the functions of the urban bodies overlap with the work of state agencies. The
functions of the municipality, including those listed in the Twelfth Schedule are left to the
discretion of the state government. Local bodies have to be bestowed with adequate
powers, authority and responsibility to perform the functions entrusted to them by the Act.
However, the Act has not provided them with any powers directly and has instead left it to
state government discretion.

The Act does address devolution of powers and responsibilities. However, the devolution
of powers commensurate with the relevant responsibilities is left to the discretion of the
state government concerned. This leaves it open to the states to devolve powers, together
with the challenge of determining whether what is devolved can be managed in terms of
sufficient capability and money. In sum, the 1992 Act was a step towards modernising local
government; although still doing so on the basis of the foundation of the earlier era.

Currently, there remains the void that can be filled by establishing city regions that would
embrace both core cities and the Nagar Panchayats, or intergovernmental cooperative
bodies that could be a preliminary mechanism from which more substantive bodies could
emerge. Both alternatives can be found in countries outside India.

38
  Coordination Challenges

In urban areas in the post-1992 Act era there remains a need for coordination between the
various agencies that operate in the same environment. Ramesh Ramanathan encapsulated
the confusion and patent lack of coordination that can result thereby in his article in the
Financial Express entitled: "Too many cooks in the urban services kitchen". Such agencies
are rooted in India's pre-Independence era, and there remains the requirement that there be
developed some coherence with clear demarcation of responsibilities and accountability,
or alternatively, for the consolidation of some of these agencies within urban government

It could also be suggested that civil service personnel develop a local specialty, and the
formation of capacity building mechanisms instituted to improve their performance in this
context.

One might also suggest that the civil service develops a vehicle for improving management
skills. The failure to improve the coordination/collaboration problem between various
urban agencies in a system that India has possessed since colonial times might also indicate
a management skills problem. The fact that Delhi's BRT attempt failed which is a
successful innovation from Curitiba, Brazil and yet has been adopted with success by other
cities, such as Bogota, Colombia, seems to underscore management weakness as being a
systemic factor as well. There are examples in developing countries that Indians might
want to look at, as there is now a history of civil service reforms that have been studied.
The author also thinks of a source of guidance that one American example might provide
the city of Phoenix, Arizona. This is a council-manager city where, like India, bureaucracy
has substantive powers in policy execution and service delivery. Unlike Phoenix, other
cities in Arizona have not been able to replicate its success, perhaps because outside North
Carolina US states do not have substantive capacity building systemic vehicles.

 The National Urban Renewal Mission

In December, 2005, a National Urban Renewal Mission (NURM) was announced, which
calls for the creation of other arrangements for improving service delivery, which may also
affect the environment by adding even more confusion to the situation preceding it.

39
The goal of NURM, however, is to upgrade urban infrastructure and to further reform the
urban situation. The centrally devised program has identified over 60 Indian cities for the
improvement program. Funding provision for the improvement is to be divided according
to a defined ratio for mega cities and those with more than a million plus population. This
is to be 35 per cent from the national government, 15 per cent from the states and the
remaining 50 per cent from financial institutions. For other cities, the formula is to be
80:10:10.

However, release of funding is tied to the states and their urban local units becoming
signatories to a tripartite memorandum of understanding with the national government of
accepting to undertake the reforms required. The reform agenda includes core reforms,
mandatory reforms and five optional reforms.

The core reforms include implementation of decentralisation measures as envisaged in the

74th Constitutional Amendment, the drawing up of public-private-partnership (PPP)
models for development, management and financing of urban infrastructure the adoption
of an accrual-based double entry system of accounting, passage of public disclosure law to
facilitate quarterly performance information to all stakeholders and a community
participation law to institutionalise citizen participation.

The infrastructure upgrade plans have been confronted currently by the current credit
crunch limitations There is also the requirement for the states to transfer, over a period of
five years, all special agencies that deliver civic services in urban areas and the creation of
an accountability framework for all urban civic service providers during the transitional
period. This, it seems, is an effort to reduce the "too many cooks in the urban kitchen"
scenario that has so far prevailed. Its degree of success will be learned over the course of
time although, as the Wall Street Journal article indicates, this state of affairs remains the
norm.

Other core reforms include introduction of e-governance for property tax collections, with
the goal of at least 85 per cent collection efficiency within five years and the introduction
of similar practices in the case of financial accounting systems, work management, water
tax billing and collection systems, the trade licensing system and the approval of building

40
plans. Compulsory reforms to be undertaken by the states include repeal of the Urban Land
Ceiling and Regulation Act, reforms to the rent control law to stimulate private investment,
reduction of Stamp Duty to bring it down to no more than five per cent within the next five
years and the introduction of independent regulators for urban services.

It should be noted here that neighbouring Pakistan's new urban systems saw the
implementation of some of these steps taken when they were implemented in 2001. This
author's Karachi article can be perused by readers interested in learning more. In Pakistan,
however, the current government shows the South Asian flaw in not appreciating the
potential economic benefits that are delivered by operating such systems. Hence, there is a
desire to go back to the familiar formulas which, like the description of the urban crisis in
India, were proved unable to address the challenges of growing urban environments.

 Conclusion

Over the past couple of decades, India has seen the implementation and framing of efforts
to modernise local government and has also revealed in the course of these efforts a
commitment to local government that was hitherto a weak link in the Indian system.
Nevertheless, it remains a system in transition that has room for further evolution to match
its prevalent ground conditions. In addition to the areas to which attention has been drawn,
the system also needs adequate quality control monitoring and capacity building
mechanisms as well as additional reforms.

Gram Sabhas

The Goan: Are Gram Sabhas merely recommending and advisory bodies to the
Panchayat? Isn't their decision binding upon the Panchayats?

George Mathew: In a democracy people are sovereign. Therefore, the best democratic
system is direct democracy. According to Article 243-A of the Constitution of India, "A
Gram Sabha may exercise such powers and perform such functions at the village level as
the Legislature of a State may, by law, provide."

41
It is widely recognised that the Gram Sabha should be at the centre-stage in the Panchayat
system of our country. With the above background it must be stated that the Gram Sabhas
are decision making bodies in the nature of recommendations and advices.

According to Dr Satya Brata Sen Committee (1996) the Gram Sabha has the right to know
the action plan of the schemes for the next three months. The Sen Committee's list of
responsibilities of Gram Sabha is an eye opener. The responsibilities are: dissemination of
information on development and welfare programmes. Gram Sabha is perhaps the best
social audit unit in our new democratic institutions. The Constitution makes no provision
in respect of the functions and powers of the Gram Sabha. It leaves the matter entirely to
the State Legislatures (Art 243A).

Can the Panchayats ignore Gram Sabhas and overrule their decisions?

The Panchayats have to execute the decisions of the Gram Sabha.

In a conflict of interest between a Panchayat decision and Gram Sabha concerns, whose
views supersede?

The views of the Gram Sabha will supersede. The only constraint is that it should not go
against the provisions of the Constitution and its interpretations by the highest court of the
land.

THE Union Government, especially the Ministry for Rural Development and Panchayati
Raj deserve all credit for declaring 2009-2010 the year of the Gram Sabha the village
assembly comprising all adult citizens of the village. There could not have been a better
choice in the ministry's list of priorities.

The 73rd amendment to the Constitution aimed at strengthening local self-government and
decentralisation in rural areas. To fulfill these objectives, elected panchayats are now in
place all over the country barring a few exceptions like Jharkhand and Jammu and Kashmir.
There are indications that in these two states, panchayat elections will take place in the near
future. In Jammu and Kashmir, elections for panchayats are likely to be held at the end of
this year or early next year. In Jharkhand the state government has been guilty of ignoring
its constitutional obligations of holding panchayat elections. But after recent civil society

42
initiatives which asked for early panchayat elections, it appears these elections will be held
soon after a new government is sworn in after the Assembly elections.

As far as the constitutional obligation of creating panchayats throughout the country is

concerned, except a few problems here and there, this duty has been fulfilled within a
reasonable time-frame. However, the real test of meaningful rural self-government is to
ensure the active participation of the entire village community, to take democracy to every
house or hut in every village. It is here that our rural decentralisation and local self-
government falters. The reason for this is that we did not pay attention to strengthening the
gram sabha.

The end result is that in many villages the elected head, known as the pradhan or sarpanch,
in collusion with an official usually the panchayat secretary has much more power than is
healthy for rural democracy. In villages where there is a weak pradhan, who could be a
proxy for powerful persons in the village, other people control him in collusion with the
panchayat secretary. In this scenario, certain officials call the shots.

In villages where the pradhan is from a feudal or influential background, he easily becomes
the most powerful person around and frequently behaves in an autocratic way. In such
situations, it is quite likely that a substantial share of development funds will be cornered
and shared by a few powerful persons. Villagers have a right to ask, how do they benefit
from this type of decentralisation or local self-government? This was not the panchayati
raj they wanted. Neither is this the vision of those who initiated panchayati raj.

The missing link has been the active participation of the entire village community,
particularly the weaker sections. There is legal provision in panchayati raj for regular
meetings of the village community or the gram sabha to discuss all important issues. The
gram sabha is supposed to play an important role in preparing village plans and deciding
development priorities in the village. But in most villages this active and important role of
the gram sabha has not been fulfilled in reality. In many villages, gram sabha meetings
have been reduced to a mere formality. The pradhan gets together a few people whom he
knows and passes that off as a gram sabha meeting.

43
In areas designated as scheduled areas where the tribal population is significant, there are
even stronger provisions for the important role of the gram sabha. This has been specially
provided by legislation on Panchayats as Extended to Scheduled Areas, known commonly
as PESA legislation. This is an important law and a source of strength for Indian
democracy.

PESA provisions make it very clear that India's democracy is committed to protecting its
vulnerable groups particularly tribals. In particular PESA legislation is very important for
protecting the land and livelihoods of tribals. To achieve this and other important aims of
protecting the tribal community PESA assigns a very important role to the gram, sabha.
Unfortunately, some state governments have been trying to dilute PESA. They have not
honoured the letter and spirit of PESA laws. In the process, the threat of land alienation
and displacement for tribals has increased. It can be stated with confidence that if the letter
and spirit of PESA is honoured, then chances of injustice to tribal communities can be
reduced significantly.

Moreover, the strengthening of gram sabhas is needed not just for scheduled areas but for
all areas. Some voluntary organisations have been working actively for strengthening gram
sabhas. As a result of their efforts and the initiative taken by some honest pradhans and
other villagers. some successful examples of the active and purposeful functioning of gram
sabhas are already available. These have helped to break the myth that it is not possible to
hold meaningful discussions in a large gathering of villagers.

To the extent that some practical problems actually exist the simultaneous strengthening of
ward sabhas can help solve these problems. As the population of a ward is much smaller
than an entire village, it will be possible to hold more detailed discussions at ward sabha
meetings. Once many issues have been sorted out at ward sabha level, it will become much
easier to hold gram sabha meetings. Solutions to practical problems are possible and the
gram sabha can certainly play a very important role in strengthening grassroots democracy.

44
The government is to be congratulated for recognising the unrealised potential of the gram
sabha. One only hopes that this initiative will be much more than a symbolic gesture and
adequate support will be given to actual work to strengthen the gram sabha.

 Effectiveness of the gram sabha

The Gram Sabha (GS) is the cornerstone of the entire scheme of democratic
decentralisation in India initiated through the 73rd Amendment to the Constitution. Hence,
the success of failure of the Panchayati Raj system largely depends on how powerful and
effective the GS is at the decentralised level to fulfil the desires and inspirations of the
people. Recognizing the critical role of theGS in village economy Gandhiji had said that
true democracy could not be worked by some persons sitting at the top. It had to be worked
from below by the people of every village.

Later on, endorsing the view of Gandhiji, Jay Prakash Narain had said: "To me Gram Sabha
signified village democracy. Let us not have only representative government from the
village upto Delhi. In one place, at least let there be direct government, direct democracy.
The relationship between Panchayat and Gram Sabha should be that of Cabinet and
Assembly". It is due to the importance of this institution at local level that the Year 1999-
2000 has been declared as "Year of Gram Sabha' by the Government of India.

Article 243(B) of the Constitution defines the GS as a body consisting of persons registered
in the electoral rolls relating to a village comprised within the area of the Panchayat at the
village level. With regard to its powers and authority. Article 243 (A) of the Constitution
says that the GS may exercise such powers and perform such functions of the village level
as the Legislature of a State may, by law, provide. It is in the light of this that State
legislatures have endowed certain powers to this corporate body relating to the
development of the village.

A study of the State Panchayat Acts reveals that the GS is to perform numerous functions
like discussing the report on socio-economic development programmes implemented by
the Gram Panchayat (GP) in the previous financial year, examine the annual statement of
the accounts and audit report as well as annual report of administration of the GP in the last
45
financial year; (c) examine the budget of the GP for the next financial year, identification
of the beneficiaries of various anti-poverty and rural development programmes; scrutinize
on-going and completed schemes and works of the GP, undertake programmes of adult
education and family welfare in the village mobilisation of voluntary labour and
contributions in kind or cash or both for community welfare programmes and promotion
and unity and harmony among all sections of society in the village.

This list of functions indicates that the GS has the power only to discuss, debate, examine
and scrutinize. There is no binding on the part of the Gram Panchayat to implement its
directions and decisions of the GS. If the institution of the GS has to be made functional as
it ought to be, it must be endowed with the power to implement schemes. However,
provisions of the Panchayats (Extension to the Scheduled Areas) Act 1996, Extension Act
for short, has not only extended development, planning and audit functions to the GS but
also endowed it with the management and control of natural resources and the adjudication
of justice in accordance with traditions and customs.

But this is applicable in areas dominated by the Scheduled Tribes in Andhra Pradesh, Bihar,
Himachal Pradesh, Maharashtra. Madhya Pradesh. Orissa. Gujarat and Rajasthan where it
has not been made functional so far as elections to the Panchayats are yet to be held there
in conformity with the Extension Act. It would have been better if the provisions of the
extension Act were extended to the non-scheduled areas. But none of the States has taken
any initiative in this regard except Madhya Pradesh and, that too, as late as in 1999. The
State has extended most of the powers meant for the relevant Act for the Vth Scheduled
Areas to all the GSs of the State. The field experiences across the country do not however
give a bright picture about the functioning of the GSs except a few examples here and there.

The GSs have functioned better in the southern States than in States elsewhere in the
country. This is so because GSs in the southern States are endowed with meaningful
functions. These States have another advantage in that they have better socio-economic
conditions, higher literacy, effective land reforms, relatively better position of vulnerable
sections including women and impact of social reform movements in this part of the

46
country. The example of Kerala is worth mentioning. Discussions were held at local level
comprising groups of 25-30 people and working groups were constituted at the local level
comprising the GS members on various issues of local importance. Thousands of persons
were identified as facilitators for these groups.

 Shortcomings

But in most of the States the people are apathetic towards this body. It has been noticed
that meetings of the GS end in a mere formality. Decisions which were supposed to be
taken by the GS were taken by the local elite, thereby rendering this body redundant.
Meetings were conducted without any consideration of quorum. The absence of women
and weaker sections of rural society was another feature of the GS. Hence, the entire
exercise could not deliver the expected results. The reason for poor attendance is due to the
fact that provisions relating to the GS contain nothing of substance which could attract the
masses towards it. The people, particularly the poor, did not want to lose their daily wages
for the sake of attending the GS meetings. If meetings of the GS were held to identify
beneficiaries for various anti-poverty and related programmes, there was a good
attendance. In fact, no one attends the meetings of the GS unless the benefits are apparent
to them.

Apart from giving the GSs only a ritualistic role, the problem is compounded by having
the meetings of the Sabha at a time of the day when the women and weaker sections are
busy at home or in earning their wages. This renders the GS meetings meaningless. The
role of the GS in bringing transparency in its own functioning in ensuring equitable
distribution of the benefits, in creating community assets where these are needed and bring
about social cohesion which is the most important factor in the success of the GPs.

In order to make the GS a powerful, vibrant and pulsating institution we must make it as a
fulcrum of the entire scheme of democratic decentralisation.

47
The institution of the GS is very important as it gives an opportunity to each and every
voter of the GP at the local level to take part in decision-making of decentralised
governance, planning and development.

 Structure

At least 5 and not more than 25 are to be elected in each village.Member of Panchayet
Samity from that village can also be a member of that village Panchayet except the
President and Deputy President.

PANCHAYAT

First meeting is organised by B.D.O.(Block Development Officer) In that Meeting

members select a head and a vice for the Panchayet by secret vote or ballot. Head or Vice
can be dismissed. by the majority votes of the electeted candidates. In that meeting
Sabhapati can not lead the meeting for the special purpose relating to the dismissal Pradhan.
The chief is called Pradhan or Sarpanch in Gram Panchayat. There is a secretary employed
by the state government to assist the Pradhan. The secretary is the commucation between
the Pradhan or Sarpanch and the B.D.O.(block development officer) representative of the
state government.

ELIGIBILITY

1. Member of a Gram Panchayet will not be a be a member of Naya Panchayet, Panchayet

Samity, Zilla Porishad or Municipality.

2. He is not a a salaried employee of Central Government. State Government, Gram

Panchayet, Panchayet Samity or Zilla Porishad

3. If a Goverment co-ordination or or an Organisation lead by Government dismisses one

he will not attain the eligibility for Panchayet Election.

4. A mania declared by court, bankrupt or being punished continuously for six months are
not eligible for the post.

5. If a member of panchayet is proved to be a corrupt he will not be able to participate as a

candidate.
48
6. A person can not submit tax,customs or toll, can not join panchayet. in rural self
government.

There is certain reservation for the women in the participation of Panchayat election

VALIDITY

Gram Panchayet is organised for five years Before the date of collapse, general election of
gram panchayet will be organised. General election means the combined elections of Gram
Panchayet. Panchayet Samity.Mahakuma Porishad or Zilla Porishad or any two or more
than that Gram Panchayets Panchayet Samity,Mahakuma Porishad or Zilla Porishad.

Time may be expanded for 6 years for any part or locality if circumstances of that area is
guessed to obstruct the election. But Government should notify in a Government Gadget.

If Goverment needs more than six month expansion then it should have filed a proposal
before State Legislative Assembly State Legislative Assembly may do necessary
amendments to that proposal.

RESIGNATION

1. If a member wishes to resign the post before the date he can lodge a written resignation
to the local B.D.O.(Block Development Officer)

2.B.D.O. makes all members of that particular Panchayet aware of this fact within 30 days.

For moral degradation, being punished for more than 6 months in jails, due tax absence in
consecutive three meetings in the Panchayet for which one is elected S.D.O.(Sub Division
Officer) can dismiss a member.

But he has to be given a chance to show cause for his misbehavior. If reply is not received
then he can appeal to the definite Authority engaged by the State Government. The decision
taken by this authority will be granted as final decision.

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Besides a Gram Panchayat does the following duties:

 construction and repairing work of roads in villages

 setting up and repairing of the village markets.
 fairs.
 collection of tax,
 festivals and celebrations.
 street lights.
 Keeping a record of births, deaths and marriages in the village.
 public health and hygiene
 free education.and drinking water sanitation
 plantation
 digging ponds,ditch,dams
 drainage
 soil reservation
 solution for problem related to land dispute primarily
 solution against problem of field dispute primarily.

Earning

Gram Panchayat earns its money for expending in terms of

 grant from the State Government in proportion of land revenue and

 the grants from the Zila Parishad
 property tax
 professional tax,
 pilgrimage taxes.
 animal trade.

Purpose of Gram Panchayat

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Always the local mob become aware of the administrative authority and keep watching
closely the bad administration. Corruption is restrained. They understand what is wrong
and what is wrong. It becomes easy to uproot the fault.

They lessen the functions and activities of the Central Government and the State
Government.Help to engage themselves in greater subjects.

Wastage of money is marginally controlled by their active participation. They patrol it

because they know well that they bear a part of the expenditure of the Self Government.

Last but not least this is a stage for the employment of would be politicians who collect
experiences from this step learn politics practically and theoretically.

Gram Panchayat is the power-point of direct rural politics. One is here only to serve the
people. He should remember always that, 'government is by the people, of the people and
for the people' and people is the god father of him or her. He should have gather patience.
compassion, sympathy sense of humor, improvement and development.

Direct Democracy and Gram Sabha Powers

The Indian constitutional framework of parliamentary democracy envisages power "from"

the people as opposed to the romanticism of power "to" the people. Accepting that the
power resides in the people of India, we should also respect and appreciate the corollary
that ours is a representative and not a direct democracy. The Constituent Assembly rejected
even an informal concession to direct democracy at any level of governance in the three-
tier central structure. As a result, there is no recognition to referendum to decide on major
issues of public importance or the right of recall of elected representatives. Earlier. Gandhi
and later Jayaprakash Narayan (1977) and Mr Anna Hazare led India Against Corruption
(2011) have been advocating the extra- constitutional tools of referendum, recall, reject and
compulsory approvals from Gram Sabha as methods to stay closer to direct democracy.

Dr Babasaheb Ambedkar expressed a very negative opinion of village communities and

had strong apprehensions to the idea of "Gram Swaraj" in a society where caste, gender
discrimination and inequity in land ownership were an inseparable part of village life. It
was evident that direct democracy would not work to the advantage of the disadvantaged
51
sections such as lower castes, depressed classes including women and the landless. As
opposed to Gandhian idealism. Dr Ambedkar looked at the village as a sink of localism,
den of ignorance. narrow-mindedness, and communalism. As a result, 'village panchayats'
did not form the basis of the Constitution. They were not accorded any independent status
in the Constitution as institutions of self-governance.

After heated debates, the panchayats ended up as article 40 under the chapter on directive
principles. It was left to the State to take steps to organise village panchayats and endow
them with powers. At the commencement of the Constitution, looking at the power and
social structure in the villages, power to panchayat and Gram Sabha could have blocked
welfare schemes and primary facilities in the area of health, education and housing to the
poor.

It is the 73rd Constitutional Amendment of 1992 which provided the constitutional status
to the village panchayats with provisions for devolution of powers and responsibilities for
the preparation of economic development plans and social justice and implementation of
around 29 subjects listed in the eleventh schedule to the Constitution.

PESA stands apart

"Gram Sabha" means a body consisting of persons registered in the electoral rolls relating
to a village comprised within the area of Panchayat at the village level. Article 243-A of
the Indian Constitution does not specify the functions and powers of it except to say that
"A Gram sabha may exercise such powers and perform such functions at the village level
as the legislature of a state may, by law, provide." This enabling provision has largely
resulted in giving innocent functions such as to endorse, to recommend, to suggest, to
consider annual accounts and administrative reports and audit notes. The recommendations
of the Gram Sabha are not binding on the Panchayat that is they do not have the force of
law. This does not mean that the Panchayat would disregard the endorsements of the gram
sabha.

52
The Panchayat Extension of Scheduled Areas Act, 1996 (PESA) sets a different target to
Gram Sabha. The enactment applies to Andhra Pradesh, Gujarat, Himachal Pradesh,
Madhya Pradesh. Maharashtra, Rajasthan. Jharkhand, Chhattisgarh and Orissa.
Consultation with the Gram Sabha is required in Scheduled Areas before land acquisition
or any developmental projects which would involve effect on 'Jal" (water), 'Jungal (forests)
and 'Jamin' (land) as the control of these resources should remain in the hands of tribals.

The verdict of the Supreme Court in Orissa Mining Corporation against MoEF asking the
gram sabhas of affected villages in Rayagada and Kalahandi districts to decide on the
religious rights of tribals living in Niyamgiri hills is upholding the powers of the gram
sabha under PESA, 1996. The court has directed that the proceedings of the gram sabha be
recorded in the presence of a judicial officer of the rank of district judge. In this verdict,
the Court has treated the gram sabha as almost a statutory authority. However, it would not
be proper to read form this verdict that the gram sabha has power to approve or reject.
Consultation and ascertaining of views of gram sabha would be a non-negotiable
requirement in the case of acquisition or projects in scheduled areas covered by PESA.

Gram Sabha does not have the power to reject schemes and proposals. Last week, the
Allahabad High Court has said that a gram sabha does not have the power to cancel or
approve the licence for running a fair price shop (FPS) within its jurisdiction. "The
resolution of the gram sabha for taking action against the fair price shop dealer at best can
be termed as an information or complaint by the gram sabha against the fair price shop
dealer, which may form a basis for initiating any action.

"However, nothing prevents the competent authority from taking action against the dealer
if the complaints are genuine. Further, a gram sabha cannot ban or accord permission. It is
absurd to read media reports of gram sabha meetings withdrawing construction licences or
project permissions granted by panchayat. Gram sabha can show its opposition or
agreement but it cannot be construed as rejection or acceptance.

53
Looking at the present situation in which the gram sabha is placed, such powers would
make panchayat and village development unworkable. We have to also understand that we
cannot move towards multiple village republics under the mistaken notion of strengthening
democracy and governance.

GS not an opposition party

Gram Sabha should not be harboured and nursed as the opposition party in the village
panchayat. If we have to achieve the goal of participative governance and planning from
the grassroots, the gram sabha should position itself as the eyes, ears, hands and legs of the
Panchayat. The gram sabha can enable people to participate in the development processes
of the village only if there is capacity building of the people and quality administrative
human power is available at the village level. There are instances of effective hold and
positive contribution of Gram Sabha on Panchayat. However, these are more as exceptions
due to the initiative of private individuals and spirited public officers. Largely, gram sabha
is plagued by prejudice, caste and class divisions and works as a platform for the candidates
defeated at the panchayat elections to act as interrupters of village development.

The meetings of the Gram Sabha are thinly attended, the participation of women is
nominal, and most people who attend are silent listeners except a vocal interest group.
Gram Sabha meeting is for information, participation and consultation. It cannot be
stretched to approval and disapproval or for acceptance and rejection of projects unless
specifically provided in the statute. If the power to approve or disapprove is provided to
gram sabha, then the parameters should be laid down. Though gram sabha is the fulcrum
of the panchayat, there could be abuse or miscarriage of the power.

Under the present limitations, gram sabha could be the watchdog and provider of inputs to
panchayat. We have not yet created an atmosphere for representative democracy to work
at the local self-government level through fiscal and administrative decentralisation. We
cannot plunge ourselves into a direct democracy by giving overriding powers to the gram
sabha.
54
55
 UNIT: 3

Rule making power of the state government

Definition of QUASI-LEGISLATIVE

1: having a partly legislative character by possession of the right to make rules and
regulations having the force of law <quasi-legislative agency>

2: essentially legislative in character but not within the legislative power or function
especially as constitutionally defined <quasi-legislative powers>

A quasi-legislative capacity is that in which a public administrative agency or body acts

when it makes rules and regulations. When an administrative agency exercises its rule-
making authority, it is said to act in a quasi-legislative manner. Administrative agencies
acquire this authority to make rules and regulations that affect legal rights through statutes.
This authority is an exception to the general principle that laws affecting rights should be
passed only by elected lawmakers.

Administrative agency rules are made only with the permission of elected lawmakers, and
elected lawmakers may strike down an administrative rule or even eliminate an agency. In
this sense quasi-legislative activity occurs at the discretion of elected officials.
Nevertheless. administrative agencies create and enforce many legal rules on their own,
often without the advice of lawmakers, and the rules have the force of law. This means they
have a binding effect on the general public.

Examples of quasi-legislative actions abound. Dozens of administrative agencies exist on

the federal level, and dozens more exist on the state and local levels, and most of them
have the authority to make rules that affect substantive rights. Agencies with authority over
environmental matters may pass rules that restrict the rights of property owners to alter or
build on their land; departments of revenue may pass rules that affect how much tax a
person pays; and local housing agencies may set and enforce standards on health and safety
in housing. These are just a few of the myriad rules passed by administrative agencies.

56
The United Nations General Assembly has been described as a quasi-legislative body
Except where prohibited by statute or judicial precedent, quasi-legislative activity may be
challenged in a court of law. Generally, a person challenging quasi-legislative activity must
wait until the rule-making process is complete and the rule or regulation is set before
challenging it. Moreover, a challenge to an agency's rule or regulation usually must be
made first to the agency itself. If no satisfaction is received from the agency, the
complainant can then challenge the rule or regulation in a court of law.

Another distinctive feature of quasi-legislative activity is the provision of notice and a

hearing. When an administrative agency intends to pass or change a rule that affects
substantive legal rights, it usually must provide notice of this intent and hold a public
hearing. This gives members of the public a voice in the quasi-legislative activity.

Article 1 of the Indian constitution declares India to be a "Union of States." India thus
establishes a federation. A federation is a composite polity. There are two sets of co-
ordinate authorities, each autonomous and independent of control by the other. The two
sets combined constitute the total polity.

In terms of Article 246 of the Indian constitution, there is a threefold distribution of

legislative powers between Union and the State Governments. The VIIth Schedule of the
constitution contains 3 lists.

The Union List gives exclusive legislative powers on 99 items of all India character such
as defence, foreign affairs, currency and coinage etc.

The State list similarly gives exclusive legislative powers to the states on 61 items, now
expanded to 65 items. Such subjects are essentially subjects of local interest.

The concurrent list empowers both the union and the states to legislate on 52 items. The
subjects in this list are such that both national government and the governments of the

57
states are interested in them. Education, Civil and Criminal procedure code, marriage and
divorce, bankruptcy and insolvency etc. are some prominent items in this list.

The Union List gives exclusive legislative powers on 99 items of all India character such
as defence, foreign affairs, currency and coinage etc.

The State list similarly gives exclusive legislative powers to the states on 61 items, now
expanded to 65 items. Such subjects are essentially subjects of local interest.

The concurrent list empowers both the union and the states to legislate on 52 items. The
subjects in this list are such that both national government and the governments of the
states are interested in them. Education, Civil and Criminal procedure code, marriage and
divorce, bankruptcy and insolvency etc. are some prominent items in this list.

Both the union and the state governments are competent to legislate on subjects in the
concurrent list. In case of conflict between a central law and a state law on a subject in this
list; normally, the union law should prevail. If however a state law reserved for the
Presidents assent receives, his assent, it will prevail over the union law. The power to
legislate on a matter not enumerated in any of the 3 lists is vested in the union Parliament
by Art. 248. Thus in India residuary powers belong to the union government.

Thus the distribution of legislative powers by the constitution is heavily tilted towards the
centre. Over and above this, the constitution visualizes 5 extraordinary situations, when the
Union Parliament will be competent to legislate on matters in the state list.

Firstly, under Art 249, the Parliament may legislate on any subject in the state list, if the
Rajya Sabha passes a resolution by not less than a 2/3 majority that it is necessary to do so
in the national interest.

58
Secondly, under Art 250, the Union Parliament may legislate on state subjects when a
Proclamation of National emergency is in operation under Art. 352.

Thirdly, under Art 252, the Parliament may legislate on state subjects on request by the
legislatures of two or more states.

Fourthly, under Art 253, the Parliament is competent to legislate on subjects in the state list
for the implementation of international treaties, a agreements or convention with foreign
states.

Finally, when a breakdown of constitutional machinery in a state occurs and there is a

consequent President's rule in state under Art. 356, the powers of the State Legislature are
exercised by the Parliament.

India is a quasi federal state rather than a truly federal state. In his opinion, the Indian
constitution is a unitary constitution with subsidiary federal features, rather than a federal
constitution with subsidiary unitary features.

The unitary or the centralizing tendency in India is very strong. In all federations in the
world today, the centralizing tendency is very marked. But in India, this tendency is so
strong, that the state governments constantly live in fear of central intervention. There is
hardly any meaningful area of state autonomy.

There are historic reasons why the founding fathers made India an over centralized union.
With its vast size and manifold diversities, the fissiferrous tendencies are inherent in India.
To hold such a diverse polity under one-fold, it was deemed necessary that the central
government should be armed with enough powers to check divisive tendencies.

Yet, the states are not made subordinate units of the centre. In normal times, they have been
granted enough autonomy to act as independent centers of authority. Prof. D.N. Banerji

59
was right in his observation that India is a federation in peace times and a unitary state in
time of emergency.

 Delegation of legislative power

Separation of powers is a basic principle of the U.S. Constitution, but up to 1935, the
Supreme Court had never held that Congress had violated this principle by delegating its
power to the executive branch. The reasons for legislative delegation are well understood.
When adopting a legislative programme, Congress cannot foresee all the problems that
those administering the programme will encounter or the adjustments that will be needed
as the programme develops. As early as 1825 Chief Justice Marshall, in Wayman v.
Southard, held that officials administering a general statutory programme must be
permitted to "fill up the details". In other words, he recognized that the executive should
be vested with regulatory powers to implement the law. In 1935, against the backdrop of
the Great Depression, the Supreme Court, in the Panama Refining Co. v. Ryan, 293 U.S.
388, accepted the general delegation of power in the National Industry Recovery Act
(Congress to the President and the President to the Secretary of Interior), but struck down
the particular delegation as one which was excessive because the Court believed
insufficient standards were included in the law to govern those actions entrusted in the
President. Shortly after, the Panama Refining ruling, the Supreme Court in Schechter
Poultry Corp. v. United States, 295 U.S. 495 (1935), declared unconstitutional another
major feature of the National Industry Recovery Act also on grounds of unconstitutional
delegation of legislative power. The following year legislation regulating prices and labor
relations in the bituminous coal industry was ruled unconstitutional on the same grounds
in Carter v. Carter Coal Co., 298 U.S. 238 (1936). Since then, no federal delegation of
legislative power has been found unconstitutional by the Supreme Court, although in the
last decades the delegations have grown increasingly broad.

60
Core functions of panchayats:

(a) How much powers and authority of the state government should be devolved to the
local councils will be determined by the respective state legislatures/governments. Hence
the profile of decentralization will vary from state to state and the panchayats will have
varying patterns of functional jurisdiction. But it is perhaps necessary that there should be
certain core activities, which should be common for the panchayat systems of all the states.
These activities may be chosen from the subjects mentioned in the 11 schedule and from
other subjects addressed by the state governments, but not mentioned in that schedule. Is it
not necessary to reach a national consensus for identifying certain vital areas in which the
panchayat systems of all the states should have important roles to play?

b) There are certain development subjects where substantial involvement of panchayats is

not only possible, but essential from the point of view of ensuring efficient service delivery
and people's control over programmes that aim at their development and welfare. Most
important subjects where the logic of decentralization is very strong are: elementary
education, adult and non-formal education, primary health care, drinking water, sanitation,
women and child development, civic services, roads and rural infrastructure that may
include rural electrification. All of them, except civic services, are mentioned in the 11th
schedule. One subject that is not specifically mentioned in the 11th schedule, is the
management of natural resources. The panchayats, particularly the gram panchayas, have
to assume substantial responsibility in respect of optimum, but sustainable, utilization of
natural resources. In fact, this should constitute a focused aspect of the panchayat plans.
Besides the above subjects, there are two poverty alleviation programmes of the central
government where panchayats' roles are well recognized. The most ambitious centrally
sponsored scheme (CSS) of poverty alleviation, namely, NREGS assigns crucial role to the
PRIs. The other major CSS of poverty alleviation, namely SGRY, which is applicable in
the districts where NREGS is not in operation, also assigns similar role to the PRIs. Apart
from these livelihood schemes. there is another important programme of poverty
alleviation. This is public distribution system (PDS). The starvation deaths, which continue
to occur in many pockets of extreme poverty in various states, from time to time clearly
indicate the importance of targeted public distribution system in our country. Since the
61
targeting capacity of the local government is far superior to the governments at higher
levels, it stands to reason that panchayats should have substantial responsibility in making
the targeted PDS work at the grassroots. Hence all the rural livelihood schemes of the
central government and the targeted public distribution scheme may also form parts of the
core functional

(c) jurisdiction of panchayats. Can there be a consensus that (a) there should be a core
functional area common for the panchayati raj systems of all the states and that (b) such
area should consist of the following?

 Elementary education, adult and non-formal education.

 Primary health care, drinking water and sanitation.
 Women and child development.
 Roads, culverts, bridges.
 Rural infrastructure that may include rural electrification for improving economic
activities in productive sectors.
 Natural resource management. Livelihood for the poor: (a) Implementation of the
poverty alleviation schemes and (b) Targeted public distribution system.
 Civic amenities.

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 UNIT: 4

Financial Powers

Sources of Income: The main source of income of the panchayat samiti are grants-in-aid
and loans from the State Government.

1. Taxes on water, pilgrimage, markets, etc.

2. Fixed grant from the State Government in proportion with the land revenue and money
for works and schemes assigned to the Parishad.

The Eleventh Finance Commission

Recommended Rs. 1600 crores per annum for rural local bodies. Out of total grants, an
amount of Rs.197.06 crores was earmarked for development of data base on the finance of
the Panchayats and an amount of Rs.98.61 crores for maintenance of accounts of
Panchayats as the first charge on these grants. The Commission also recommended that in
cases where elected local bodies are not in place, the Central Government should hold the
grants for local bodies in trust on a non-lapsable basis during 2000-05 and that the Central
Government would withhold a part of the recommended grants in case of such bodies to
whom functions and responsibilities have not been devolved. Besides, the Commission
recommended that Audit of accounts of the local bodies should be entrusted to the C&AG
who may get it done through his own staff or by engaging outside agencies on payment of
remuneration fixed by him and an amount of half-per cent of the total expenditure incurred
by the local bodies should be placed with the C&AG for this purpose, and the report of the
C&AG relating to audit of accounts of the Panchayats should be placed before a Committee
of the State Legislature constituted on the same lines as the Public Accounts Committee.
The Ministry of Finance releases Grants recommended by the Eleventh Finance
Commission.

63
Status of State Finance Commission (SFC)

The constitution also provides that the State Government shall appoint a Finance
Commission to review the financial position of the State and the Panchayats and make
recommendations in respect of distribution of net proceeds of tax, duties, tolls and fees
leviable by the State between State and PRIs. This commission needs to be reconstituted
after every five years.

The first SFC was constituted in April 1994 under section 135 of Bihar Panchayat Raj Act
1993 but it did not submit any report. Second SFC was constituted in June 1999 and this
submitted five interim reports between September 2001 to November 2003 in which
recommendations were given for distribution of Tenth (TFC) and Eleventh Finance
Commission (EFC) grants between the three tiers of PRIs and on items of taxes, fees
including rate at which the taxes and fees to be imposed by the Gram Panchayat, Panchayat
Samiti and Zila Parishad. The State Government, however (November 2003) accepted only
four recommendations of these interim reports but did not intimate about submission of
final report by the second SFC, placement of interim reports before State legislature and
action taken, if any, on the above reports. Third SFC was constituted in June 2004 but no
position intimated by the State

Government regarding submission of any report of this commission

Test check of records of PRIs revealed that the State Government distributed grants of
TFC and EFC to the PRIs as per recommendation of second SFC. However, it did not take
action for implementation of recommendations made by second SFC in its fourth and fifth
interims reports for imposition of taxes, fees and tolls by the PRIs. As a result of this PRIs
were not able to impose any taxes & fees which deprived them of their own revenue

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Sources of revenue

(a) The Panchayat Raj Institutions are mainly funded by the State Government by way of
grants. The ZPs having meager are revenue from own sources viz. rent of
shops/Dakbungalows/Inspection Bungalows, lease rent of land, settlement of Ghats,
Ferries and Bus Stand etc. while the PS and GP are not having its own sources of revenue
so far. Funds on recommendations of Finance Commission was released to PRIs through
Zila Parishads.

Accounting Arrangements

The State Government was to frame the rules, but the accounts rules has not yet been
framed and therefore Panchayat Samitis and Zila Parishads are following the Panchayat
Samitis and Zila Parishads (Budget and Accounts) Rules 1964. As per provision under rule
94 of the rules ibid every Panchayat Samiti and Zila Parishad are to prepare annual accounts
of each financial year within one month after the close of the financial year. But, none of
them test checked prepared annual accounts, though they incurred expenditure of Rs.
151.04 crore and Rs. 70.25 crore against receipt of 163.90 crore and Rs. 90.09 crore
respectively, as noticed from cash book and vouchers (Appendix I and II).

The budget and accounts format, prepared by the comptroller and Auditor General of India
was accepted by the State Government in October 2004 but the adoption of the said formats
is yet to take place in P.R.Is. The Eleventh Finance Commission recommended for the
creation of a data base on the finances of Local Bodies in the format prescribed by the
C&AG of India, but the data base is still to be developed.

Financial power of municipalities

This being an Audit Department, the Financial Powers are restricted with the Municipal
Chief Auditor only that too in respect of Grant of increments to the employees and approval
of expenditure of Contingency nature, Procurement of Dead Stock items etc.

65
Evolution

1.1 Municipal authority in India was as old as Indus civilization of 3000 BC. But, as a
political institution, it is totally British in its origin and fame. The first (Municipal)
Corporation was established in 1688 in the port town of Madras. Subsequently.
Corporations were established in Bombay and Calcutta during the year 1726.

1.2 The next milestone in municipal administration is Lord Mayo's Resolution of 1870.
Lord Mayo realized the need for popular association in civic functions. He conceived this
in a broader setting of decentralization and as a measure of self-governance at the local
level.

Local Governance

1.3 The next historic step in the development of local governance was taken by Lord
Rippon with his celebrated Resolution in May, 1882. Lord Rippon decided to increase the
scope of local governance. The two main objectives of the reforms were:

 to decentralize more functions to local management, and

 to make local government an instrument of political and popular education

1.4 Based on the resolution, the following functions were entrusted to the local bodies:

 maintenance of roads street lighting

 upkeep of municipal property and buildings
 public health, vaccination, measures against epidemics
 sanitation
 drainage
 water supply
 education

1.5 The local revenues entrusted to local bodies were:

 octroi
 property tax on houses and lands
 tax on profession and trades
 road tolls
 taxes on carts and vehicles
66
  rates and fees for services rendered like conservancy, water supply, markets etc.

1.6 With the passage of Government of India Act, 1919, local government became a
provincial head (state subject). The local tax powers laid down under this Act were:

 Toll
 Land tax and tax on land values
 Tax on buildings
 Tax on vehicles and boats
 Tax on menial and domestic servants
 Tax on animals
 Octroi
 Terminal tax on trade, profession and callings
 Tax on private markets, and
 Tax on municipal services water supply, lighting, drainage, public conveniences

1.7 Subsequently, Government of India Act, 1935 was enacted. The reforms under the 1935
Act were (i) provincial autonomy and (ii) federal structure. In the 1935 Act, the local self-
government received a setback in comparison with the earlier legislation. While the 1919
Act has detailed the resources assigned to municipalities, the 1935 Act listed the powers of
the federation and provinces only. The local government's functions and tax powers were
left to the provincial (state) governments. The same situation continued even after
Independence and with the Constitution of India.

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 UNIT: 5

Judicial and Quasi-judicial powers of the Local Bodies

A quasi-judicial body is an entity such as an arbitrator or tribunal board, generally of a

public administrative agency, which has powers and procedures resembling those of a court
of law or judge, and which is obligated to objectively determine facts and draw conclusions
from them so as to provide the basis of an official action. Such actions are able to remedy
a situation or impose legal penalties, and may affect the legal rights, duties or privileges of
specific parties.

There are some key differences between judicial and quasi-judicial bodies, in that:

 Judicial decisions are bound by precedent in common law, whereas quasi-judicial

decisions usually are not so bound:
 In the absence of precedent in common law, judicial decisions may create new law,
whereas quasi-judicial decisions must be based on conclusions of existing law;
 Quasi-judicial bodies need not follow strict judicial rules of evidence and
procedure:
 Quasi-judicial bodies must hold formal hearings only if mandated to do so under
their governing laws or regulations
 A court may not be a judge in its own cause, but a quasi-judicial body may both be
a party in a matter and also issue a decision thereon;

Judicial powers of local bodies

The earliest nyaya panchayats were the village courts established under the Village Courts
Act of 1888. The Royal Commission on Decentralisation of 1909, recommended of revival
of nyaya panchayats having both civil and criminal jurisdiction in petty cases arising within
the village. In May 1915, by a resolution passed by the Government of India, the matters
regarding the establishment of nyaya panchayat was left to the State Government. In 1920.
Bombay Village Panchayat Act was passed and that resulted in the conduct of a series of
panchayat adalats. But select committee of the legislative council opposed the investing of
judicial powers on panchayats. In 1933, a village bench consisiting of elected members and
outsiders were created as per provisions of the Bombay Village Panchayat Act in Bombay.
68
Since independence, almost all States enforced Village Panchayat Acts as guided by the
directive principles and have resulted in the creation of statutory nyaya panchayat
legislation. The village Panchayat and nyaya panchayat existed as dual entities in order to
have separation of judiciary from the executive.

Legislation to formalise these bodies and bring them within the ambit of organised justice
in India was planned as part of the Panchayati Raj reforms of Rajiv Gandhi in the 1980s,
but was put on hold to coincide with broader reform of the justice system, which was never
carried out. Following the victory of the Congress Party-led United Progressive Alliance
in the 2004 General Elections, the National Advisory Council advised the Government of
India to introduce legislation. To draft legislation in this regard a drafting committee, under
the chairmanship of Professor Upendra Baxi, has been formed by the Ministry of
Panchayati Raj, Government of India. The bill on the issue is proposed to be debated in the
winter session of the Indian Parliament.

Constitutional support for Nyaya panchayat

Since a forum for the resolution of disputes with the participation of people in local justice
administration is the goal envisaged by Article 39A of the Constitution of India, it is
strongly felt by some jurists and social scientists that it is incumbent on the government to
take immediate steps to activate nyaya panchayats, given that it might not be possible to
render access justice in rural areas simpler and quicker. It is also argued that nyaya
panchayats guided by local traditions, culture and behavioral pattern of the village
community instill confidence in the people towards the administration of justice.

114th law commission report

The Law Commission, in its August 1986 (Chapter V para. 5.3) indicating that nyaya
panchayats made precisely this point, observing that "Article 39A of the Constitution of
India directs the State to secure that the operation of the legal system promotes justice, on
a basis of equal opportunity, and shall, in particular provide free legal aid, by suitable
legislation or schemes or in any other way, to ensure that opportunities for securing justice
69
are not denied to any citizen by economic or other disabilities. This is the constitutional
imperative. Denial of justice on the grounds of economic and other disabilities is in nutshell
referred to what has been known as problematic access to law. The Constitution now
commands us to remove impediments to access to justice in a systematic manner. All
agencies of the Government are now under a fundamental obligation to enhance access to
justice. Article 40 which directs the State to take steps to organize village panchayats and
endow them with such powers and authority as may be necessary to enable them to function
as units of self-government, has to be appreciated afresh in the light of the mandate of the
new article 39A. "the law even says that there should not be khap panchayat

The following considerations seem to have prompted the Law Commission and the Study
Team on nyaya panchayats to recommend the revitalisation of nyaya panchayats: (The Law
Commission, Fourteenth Report and the Report of the Study Team on nyaya panchayats
extracted from an article written by K.N. Chandrasekharan Pillai titled "Criminal
Jurisdiction of nyaya panchayats" Journal of the Indian Law Institute Vol. 19, October-
December, 1977 p. 443)

1. They would dispose of a large number of cases and thus relieve the burden of regular
courts.

2. They would succeed in getting a large number of cases compromised through peaceful
conciliation.

3. The villagers in general would be satisfied with the administration of justice obtaining
in village or panchayat courts and that the decisions of these courts on the whole would do
substantial justice.

4. Appeals and revisions from these decisions would be small in number.

5. There should be speedy and cheap disposal of cases.

6. The litigants and witnesses who are mostly agriculturists can conveniently attend the
courts and thus there would be no interference with agricultural activities in the village.

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7. The panchayat could bring justice nearer to the villager without involving the
expenditure which would otherwise have to be incurred in establishing regular courts.

8. Panchayat would have an educative value.

9. Local courts acquainted with the customs of the neighborhood and nuances of the local
idiom are better able to understand why certain things are said or done.

10. An institution nearer to the people holds out greater opportunities for settlement and a
decision taken by it does not leave behind that trial of bitterness which generally follows
in the wake of litigation in ordinary courts.

11. There are better chances of conciliatory method of approach in nyaya panchayats.

12. People in a village are so closely known to each other that the parties to a dispute would
not be able to conceal or produce false evidence easily and those who tell lies before the
nyaya panchayat face the risk of being looked down upon and even boycotted by others.

13.Panchas being drawn from among simple village folk strive at decisions which are fair
and at the same time consistent with the peculiar conditions of the parties.

Hon'ble Justice S.B Sinha, Judge Supreme Court of India, emphasizing the importance of
nyaya panchayats in a lecture delivered to District Judges observed that, "There is also a
need to deliberate on the methodologies to be adopted for encouraging justice dispensation
through the traditional forum of Panchayats. This age-old institution has found new vigour
with the introduction of the 73rd Amendment to the Constitution, and most accordingly to
be considered another pillar in the edifice that symbolizes justice. Strengthening the
institution of Panchayats and empowering people at the grass-root level to resolve their
disputes amicably would solve many of the problems that is faced by conventional justice
dispensation machinery in its attempts to percolate to the lowest levels. This would provide
a, solution to the problems of access to those living in remote regions."

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Power of Gram Panchayat to make general order- A Gram Panchayat may by general order
to be published in the manner prescribed

(a) prohibit the use of water of a well, pond or other excavation suspected to be dangerous
to the public health:

(b) regulate or prohibit the watering of cattle or bathing or washing at or near wells. ponds,
or other excavations, reserved for drinking water:

(c) regulate or prohibit the steeping of hemp or any other plant in or near ponds or other
excavations within two hundred and twenty yards of the residential area of a village:

(d) regulate or prohibit the dyeing or tanning of skins within four hundred and forty yards
of the residential area of a village:

(e) regulate or prohibit the excavation of earth:

(f) regulate or prohibit the establishment of brick-kilns and charcoal kilns within eight
hundred and eighty yards and pottery kilns within two hundred and twenty yards of the
residential area of the village:

(g) direct that the carcasses of all dying within the village except animals slaughtered for
consumption shall not be disposed of within a radius of four hundred and forty yards of the
residential area of the village:

Provided that nothing shall be done under this clause to interfere with the legal rights of
any person:

(h) regulate the construction of new buildings or the extensions or alterations of any
existing buildings or the abadi:

(i) regulate with the previous permission of the State Government the parking of public
vehicles:

(j) regulate such a matters as may be necessary for the general protection of standing crops
and trees on common land and the planting of such trades:

(k)regulate the observance of sanitation and taking curative and preventive measures

to remove and prevent the spread of epidemics:

(l) regulate the maintenance of water courses meant for irrigation purposes;

(m) regulate the killing of stray dogs:

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(n) regulate the slaughter of animals; and

(o) prohibit beggary:

(p) direct the taking of measure for the prevention of waterlogging:

(q)regulate the flaying and disposal of dead animals;

(r) prohibit the sale of harmful eatables within the gram sabha area;

(s) regulate offensive and dangerous trades or practices.

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 UNIT: 6

Election to local bodies

Local bodies are institutions of the local self governance, which look after the
administration of an area or small community such as villages, towns, or cities. The Local
bodies in India are broadly classified into two categories. The local bodies constituted for
local planning, development and administration in the rural areas are referred as Rural
Local Bodies (Panchayats) and the local bodies, which are constituted for local planning,
development and administration in the urban areas are referred as Urban Local Bodies
(Municipalities).

Local Government is a State subject figuring as item 5 in List II of the Seventh Schedule
to the Constitution of India. Article 243 G of the Indian Constitution enshrines the basic
principle for devolution of power to the Local Bodies. In the nation's journey towards
becoming an economic power, local bodies play an important part in enabling
infrastructure availability to the citizens.

Election Commission

The superintendence, direction and control of preparation of electoral rolls for, and the
conduct of, elections to Parliament and State Legislatures and elections to the offices of the
President and the Vice-President of India are vested in the Election Commission of India.
It is an independent constitutional authority. Since its inception in 1950 and till October
1989, the Commission functioned as a single member body consisting of the Chief Election
Commissioner. On 16 October 1989, the President appointed two more Election
Commissioners on the eve of the General Election to the House of the People held in
November- December 1989. However, the said two Commissioners ceased to hold office
on 1 January 1990 when those two posts of Election Commissioners were abolished. Again
on 1 October 1993, the President appointed two more Election Commissioners.
Simultaneously, the Chief Election Commissioner and other Election Commissioners
(Conditions of Service) Act, 1991 was amended to provide that the Chief Election
Commissioner and other Election Commissioners will enjoy equal powers and will receive
equal salary, allowances and other perquisites as payable to a judge of the Supreme Court

74
of India. The Act further provided that in case of difference of opinion amongst the Chief
Election Commissioner and/or two other Election Commissioners, the matter will be
decided by the Commission by majority. The validity of that Act (renamed in 1993 as the
Election Commission) (Conditions of Service of Election Commissioners and Transaction
of Business) Act, 1991 was challenged before the Supreme Court. The Constitution Bench
of the Supreme Court consisting of five judges, however, dismissed the petitions and
upheld the provisions of the above law by a unanimous judgment on 14 July 1995.

Independence of the Election Commission and its insulation from executive interference is
ensured by a specific provision under Article 324(5) of the Constitution that the Chief
Election Commissioner shall not be removed from his office except in like manner and on
like grounds as a Judge of the Supreme Court and conditions of his service shall not be
varied to his disadvantage after his appointment. The other Election Commissioners cannot
be removed from office except on recommendation of the Chief Election Commissioner.
The term of office of the Chief Election Commissioner and other Election Commissioners
is six years from the date he/she assumes office or till the day he/she attains the age of 65
years, whichever is earlier.

Elections to the Municipalities: As per provisions made in Article 243ZA, the

superintendence, direction and control of the preparation of electoral rolls for, and the
conduct of, all elections to the Municipalities are vested in the State Election Commission
referred to in article 243K. Subject to the provisions of this Constitution, the Legislature
of a State may, by law, make provision with respect to all matters relating to, or in
connection with, elections to the Municipalities.

Election of Local Bodies in Uttar Pradesh

After independence, the importance of establishing and developing Local self-government

in rural areas was realized and the U.P. Panchayat Raj Act, 1947 was promulgated to fulfill
this objective. Consequently gram sabha and gram Panchayat in every village or for a group
of villages were established throughout the state. The Constitution of India as enforced on
January 26, 1950 provides that "The State shall take steps to organize village Panchayats
and endow them with such powers and authority as may be necessary to enable them to

75
function as units of local self-government". Subsequently different committees
recommended that Constitutional status be accorded to Panchayat Raj and Urban Local
Bodies Institutions and the elections to these institutions be conducted by separate Election
Commission. As a consequence, the 73rd and 74th Amendment in the Constitution came
into effect from 24th April, 1993.

Article 243K of the Constitution of India states that:-

"The superintendence, direction and control of the preparation of electoral rolls for, and the
conduct of, all elections to the Panchayats shall be vested in a State Election Commission
consisting of a State Election Commissioner to be appointed by the Governor".

The Uttar Pradesh State Election Commission was constituted by the State Government
for the first time on April, 23rd, 1994.

The functioning of the Panchayat Raj Bodies is governed by two separate acts, one for
Gram Panchayats and the other for the Kshetra Panchayats and Zila Panchayats. According
to section 12BB of the U.P. Panchayat Raj Act, 1947, the superintendence, direction and
control to conduct the election to the office of Pradhan and Member of a Gram Panchayat
is vested in the State Election Commission. Under Section 12 BB, subject to the
supervision and control of the State Election Commission, the District Magistrate
supervises the conduct of all elections of the Pradhans and the Members of the Gram
Panchayats in the districts. Similarly, according to section 264-B of the U.P. Kshetra
Panchayats and Zila Panchayats Adhiniyam, 1961, the superintendence, direction and
control to conduct the election to the office of Adhyaksh and Member of a Zila Panchayat
and of Pramukh and Member of a Kshetra Panchayat is vested in the State Election
Commission.

Like rural local bodies, the urban local bodies in the State are governed by two separate
Acts, one governing the Nagar Palika Parishads and Nagar Panchayats and the other for
Municipal Corporations. According to Section 13-B of the U.P. Municipalities Act, 1916
and section 45 of the U.P. Municipal Corporation Act, 1959, the superintendence, direction
and control to conduct the election to the office of Chairpersons , Members, Mayors and
Corporators is vested in the State Election Commission.

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The electoral rolls are prepared according to the rules under the provisions of related Acts,
guidelines and instructions given by the State Election Commission. There are specific
provisions to this effect under section 9 of the U.P. Panchayat Raj Act, 1947.

Section 6B of the U.P. Kshetra Panchayat and Zila Panchayat Adhiniyam, 1961 deals with
preparation of electoral rolls for Kshetra Panchayat and section 18B of the aforesaid Act
pertains to the preparation of electoral rolls for Zila Panchayat.

Likewise section 12A to 12G of the U.P. Municipalities Act, 1916 deals with the
preparation of electoral rolls of Nagar Palika Parishads and Nagar Panchayats. Section 35
to 40 of the U.P. Municipal Corporation Act, 1959 deals with the preparation of electoral
rolls of the Municipal Corporation.

The State Government has made certain rules for the conduct of Panchayats election as
cited below:

 Uttar Pradesh State Election Commission (Panchayat Raj & Local Bodies)
(Appointment & Conditions of Service) Rules, 1994.
 Uttar Pradesh Panchayat Raj (Registration of Electors) Rules, 1994.
 Uttar Pradesh Panchayat Raj (Election of Members, Pradhans and Up-Pradhans)
Rules, 1994.
 Uttar Pradesh Panchayat Raj (Settlement of Election Disputes) Rules, 1994.
 Uttar Pradesh Panchayat Raj (Settlement of Election Disputes) Rules, 1994.
 Uttar Pradesh Kshetra Panchayats and Zila Panchayats (Election of Members)
Rules, 1994.
 Uttar Pradesh Zila Panchayats (Election of Adhyaksh and Up-Adhyaksh and
Settlement of Election Disputes) Rules, 1994.
 Uttar Pradesh Kshetra Panchayats (Election of Pramukh and Up-Pramukh and
Settlement of Election Disputes) Rules, 1994.

For conducting the Urban Local Bodies election, the State Government has made the
following rules:-

 U.P. Municipalities (Preparation and Revision of Electoral Roll) Rules, 1994.

 U.P. Municipal Corporations (Preparation and Revision of Electoral Roll) Rules,
1994.
77
 U.P. Municipalities (Election of Members, Corporators, Chairmen and Mayors)
Rules, 2010.
 U.P. Municipalities (Election of Members, Corporators, Chairmen and Mayors)
(First Amendment) Rules, 2013.

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 UNIT:7

 Conduct of Meeting of Corporation

Refer: THE UTTAR PRADESH MUNICIPAL CORPORATION ACT, 1959

CHAPTER III

PROCEEDINGS OF THE MAHAPALIKA, EXECUTIVE COMMITTEE,

DEVELOPMENT COMMITTEE AND OTHER COMMITTEES

 Conduct of Meetings of Municipal Council

Refer: THE UTTAR PRADESH MUNICIPALITIES ACT, 1916

CHAPTER III

CONDUCT OF BUSINESS

MUNICIPAL MEETINGS AND PROCEEDINGS

 Conduct of Meetings of Gram Sabha

Refer: The U.P. Panchayat Raj Act, 1947

CHAPTER III

THE GRAM SABHA: ITS MEETINGS AND FUNCTIONS

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 UNIT: 8

GOVERNMENTAL & JUDICIAL CONTROL OVER LOCAL

GOVERNMENT

GOVERNMENTAL CONTROL OVER LOCAL GOVERNMENT

Although the 74th Amendment of the Constitution has granted sufficient autonomy
to urban local institutions and these have been accorded constitutional status, these
are not completely free from governmental control. The urban local government
institutions work within the limits prescribed by the State Municipal Act which
creates and governs them.

1. Legislative Control:

Urban Local bodies are set up by the laws passed by the legislature. Government
can bring changes in their organisation, powers and functions through a law passed
by the legislature.

2. Financial Control:

Government undertakes the audit of the accounts of urban local bodies from time
to time for checking irregularities committed by these institutions while spending
money. For raising loans from the financial institutions. Municipal Councils have
to seek the prior approval of the government.

3. Control through Government Officials:

Executive Officers of urban local bodies are government officials and the
government exercise its control over these bodies through these officials. Executive
Officer and the Commissioner of Municipal Corporation are the key instruments of
governmental control over the urban local bodies. The Director Urban Local Bodies
also performs such a role.

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4. Power to dismiss the Urban Local Institutions:

Under 74th amendment to the Constitution, these institutions have been given a
stable 5 years tenure. However, even then, if in the opinion of the government, an
institution is not competent to perform its duties or persistently makes default in
the performance of duties, the government can dismiss it even before the expiry of
its term.

5. Administrative Control:

(i) The Government can seek any report, record or information from the Municipal
councils and corporations,

(ii) The government can appoint any officer of its own to scrutinize and examine
the work done by a Municipal Corporation Council,

(iii) The sanction in respect of the bye-laws passed by a Municipal

Corporation/Council has to be obtained from the government.

Thus, Indian Political system has within it a well-organized and well-functioning

systems of rural and urban local government. These grass root level local
government institutions serve as instruments for providing political education and
training to the people of India as well as these act as very useful means for securing
the socio-economic development of Indian villages and cities.

No doubt their working has not been fully successful in securing the desired goals,
nevertheless, they have the potential to develop and become stronger and efficient
organs of local development with local resources, local efforts and through local
representatives.

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The Constitution 73rd and 74th Amendment Acts have made a bold attempt to
ensure their continuity, stability, representativeness and autonomy with a view to
enable them function as valuable systems of self-governance.

However, there is still present the need to make the working of local self-
government system really efficient and productive. The people must come forward
to be more willing and active partners in the working of local institutions. No
system of local government can really work without people's total commitment to
work it as their system of self-government for meeting their respective local needs
with the help of local resources and efforts.

Since 2006 a separate central ministry-the Panchayati Raj Ministry has been
working. It has been continuously monitoring the working of Panchayati Raj
institutions. It has the responsibility to suggest national Level consensus-based
reforms for making Panchayati Raj an effective and efficient system of local
Government.

In Rashid Ahmed v. Municipality Board, Khairana and Ajit Singh V. State of

Punjab, the SC had held that Municipality and Gram Panchayats are local
authorities UNDER ARTICLE 12, respectively against whom fundamental rights
can be enforced.

The Supreme Court in Union of India v. RC Jain laid down the distinctive attributes
and characteristics of Local Authority. These are:

The authority must have separate legal existence as corporate bodies.

It must function in a defined area and must ordinarily, wholly or partly, directly or

indirectly be elected by the inhabitants of the area.

It must enjoy a certain degree of autonomy, with freedom to decide for itself,
questions of policy affecting the area administered by it.

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It must be entrusted by statute with such governmental functions and duties as are
usually entrusted to municipal bodies.

It must have the power to raise funds for furtherance of its activities and fulfilment
of its projects by levying taxes, rates, charges and fees.

Thus, fundamental rights are available against the local bodies and can be enforced
through court of law.

JUDICIAL CONTROL OVER LOCAL GOVERNMENT

The control over the local authorities by the judiciary is the most ancient one. Local
authorities may exercise their powers and perform their duties usurping the
individual liberty It may raise legal disputes calling for immediate intervention by
the courts of law. In fact, both individual liberty and Parliamentary control are
safeguarded effectively by the judiciary acting as watchdog over local authorities.

The powers of the judiciary over the local authorities may be exercised (1) where
the authorities go beyond the powers granted to them by the statute (2) Where the
authorities are not performing the duties imposed on them by statute (3) Where the
authorities exercise functions subject to appeal to the courts. The function of the
'court is to see to it that the local authorities do not exceed their powers. Power may
be exceeded if the act concerned is altogether outside the scope of the authority's
power and thus, void. Further, such excess of power may occur if the local authority
exercises wrongly a power which the authority statutorily does not possess. It may
so happen that powers, exercised by the local authorities may be well within their
sphere of authority but in carrying them out rights of some persons are injured and
hence it is actionable for damages or other remedy.

Secondly, the courts intervene in case where the local authority fails to comply with
the statutory obligations. In this case the remedy lies in the enforcement of the

83
obligation. The procedure for the enforcement of the obligations imposed by the
statute has been clearly stated by the court. If the local authority has the duty
towards an individual, the individual possesses the right to press for a remedy in
the event of "non-feasance or misfeasance". It may so happen that the local
authority owes an obligation to the public in general.

In the above general principles relating to the intervention of the court of law have
been stated. It would be useful to consider the remedies which are available through
courts Remedies may be categorised broadly into two classes - (i) Ordinary (ii)
Prerogative

(1) Ordinary Remedies

(a) Criminal prosecutions - Sometimes statute provides with the special criminal
remedy. For the cases of non-feasance, misfeasance or ultravires acts.

(b) Action for damages An action for damage can successfully be brought against
the local authority in two specific cases (1) Where the authority commits an act
wrongfully and injures a private person (2) Where the authority fails to discharge a
duty which it owes to the individuals, and consequently individuals suffer injury.

(c) Action for an injunction is a means to restrain the authority from doing an act
which it proposes to do or to repeat. Hence it is useful in cases of nuisance. It is not
however true that every individual can sue on the alleged ground that a public
authority threatens, to perform an ultravires Act. It must be clearly proved that the
Individual concerned apprehends the infringement of his personal liberty on the
commission of the act by the local authority.

(2) Prerogative Writs:

Prerogative writs are a subset of the class of writs which are issued by the court
under special circumstances and are often known as extra ordinary remedies.

Mandamus

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It is a Latin word which means "We Command." It is an order from superior Court
to any Sub- ordinate

 Court
 Co-operation
 Public Authority
 State Authority

to do some specific act which that body is obliged under law to do but fails to do
so. It serves as a reminder to these authorities to perform their duty.

This petition can be filed before the court only by the aggrieved individual. It can
be filed only when the legal right of the person is violated.

To whom it can be issued?

It can be issued by a court only against a public authority or a person holding a

public office.

It cannot be issued against an individual or private organisation.

Scope: The primary scope and function of mandamus is to "command" and

"execute" rather than to "enquire" and "adjudicate".

Non-availability

The writ petition is not maintainable when a remedy under the Code of Civil
Procedure is available. For example, the High Court cannot entertain writ petitions
for mandamus to the Government who fails to deposit and pay in the requisite time
an enhanced compensation account as ordered by a lower Court. The petitioners in
this case would be directed to approach the executing Court for appropriate relief.

85