Strengthening Local Government: Background note for a Constitutional Amendment

Towards Building a National Campaign for Constitutional Amendment to Part IX & IX-A (Article 243 G & W) and Amendment to Create List IV in the Seventh Schedule (Local Government List)

National Consultation for Strengthening Local Government and Dalit and Women Elected Representatives  

BACKGROUND NOTE

Introduction 

The 73rd and 74th Constitutional Amendments are an important cornerstone for empowerment of people and building grassroots democracy. For this, sustainable development and democracy are inseparable and indivisible.  Strengthening democracy at the grassroots level and re-defining federalism in terms of empowerment of the poor and rejuvenating local self-government is an important constitutional goal when combined with the quest for sovereignty (self reliant governance) social justice and equality.  Panchayats and Urban Local Institutions under the new scheme are one of the most crucial processes for people to assert their community identity, fulfill their basic needs, fight exploitation, and unequal and oppressive power relations, promote human rights and protect community assets for the goal of self-reliance and sovereignty.

The Union Government through the Constitution 73rd and 74th Amendment gave a political signal that decentralisation had come to stay in India 33% reservation for women in elected bodies and also reservations for dalits and Tribal according to the proportion of their population were guaranteed. What is encouraging is that as against 33% reservation for women in local body, the actual participation of women is more that 38%. But this has not necessarily translated into women empowerment, or helped the marginalised community like the dalits and tribals to gain equal opportunities. Women and dalit presidents have to face many challenges and are used in many cases as a front by the power elite. Landlord, mercantile, upper caste leadership still persists in panchayat government. There are several cases of elected women members who remain behind their husbands or men in the family and allow them to take all decisions as though they are the presidents. Brutal attacks of women are several. The Inspector of Panchayats (District collector) has removed hundreds of elected leaders. Further women are not allowed to sit in the chair for checked leaders or given the hays to the office.  However hundreds of women, though newly elected are also demanding that they function independently. Women presidents when refused to follow the diktats of the male panchayat members (caste political party or class) face problem through them.

Of the 29 subjects that are to devolve powers, authority and responsibilities by respective State Governments to Panchayat Local Bodies, more than half pertain to management of environment resources improvement of livelihood and eradication of poverty. However till date the state governments have not empowered the panchayat, by not entrusting their powers especially in Tamil Nadu. The state has not handed over substantial planning authority and responsibility. Plans prepared by the local body have not been accepted. Similarly developmental plan and outlay are not implemented through panchayat. The role of panchayat has not been clearly spelt out. Panchayats are only treated as scheme implementing (state and central) agencies. For the state developmental sector, there have been parallel bodies established. Panchayats are not given power to manage and administer in PDS, education, health, drinking water, non-convention energy. This is despite the Tamil Nadu Federation of Women Presidents of Panchayat Government demanding these powers for the past 8 years, advocacy and lobbying with political parties, elected representatives of the State Legislature and planners and administrators. It is the district administration that still yields enormous powers. However powers regarding governance, lands vested with Panchayats, tax collection expenditure related to incomes received into panchayat accounts, etc., women and dalits in hundreds have been sensitised to utilize.

Powers of Gram Sabha need to be strengthened by Amendments to the Constitution and Panchayat Act 

Article 243A of the Indian Constitution, states that the Gram Sabha means a body consisting of persons registered in the electoral rolls relating to a village compromised within the area of panchayat at the village level. The sabha may exercise such powers and perform functions at the village level as the legislature of the state may by law provide for in the powers. (The rules issued under the Tamil Nadu Panchayat Act, 1994) In Chapter 11 of the Tamil Nadu Panchayat Act 1994, the state has diluted the powers of the Gram Sabha by defining that Gram Sabha as the body which shall approve the village plan, budget for the year, and review the progress of implementation of all schemes entrusted to it. The Government by GO MS.No.152 of Rural Development Department has defined the other functions including quorum and procedure for convening and conducting of meetings. However till today in most cases, it remains a body which has to take dictates only according to the details of the district administration and not extending its scope beyond that, to look at the real livelihood issue of that village and exercise its power? Gram Sabha is the only forum at the village level were all the voters including women, scheduled caste and scheduled tribe and the poorest in the village have the right to participate and raise the issue of their own welfare matters and the problem which affects the village on the whole. It should function like a Parliament.

Gram Sabha members are yet to understand the need for devolution of power and fully participate in the decision making process. While the law states that any industrial activity in a village requires the consent of the Gram panchayat, it is hardly ever the case. In some cases, affected persons have been left with no other recourse but to agitate. Environment governance, land and natural resource management are key issues. Local people can manage the resources in a more sustainable manner only when the community is aware and involved. Wherever the local community stands up for their rights, take charge of their lives and questions decisions that impact them, the panchayat government system works. Both sides are true. Gram Sabha is a powerful grass roots institution for mobilizing people to plan for their self – reliant development and also to take decisions to stop destructive development. On numerous occasions in Tamil Nadu the Village Panchayat council, at times together with the Gram Sabha have passed resolutions objecting to various mega projects they have also refused to give no objection certificated for construction of destructive and polluting industries etc. It has also brought about changes in public policy, state law and budgetary allocations undermining welfare governance sustainable development and promoting a culture entire of manufactured consent.  Hence it is necessary to have Constitutional amendment which binds all the State Government Panchayat Act to a set of minimum powers to Gram Sabha. Gram Sabha should function as powerful independent, deciding body without the intervention of District Collectrate.  It should function like a Parliament to the elected bodies.                       

A limitation of the Constitution 73rd Amendment:

The Constitutional scheme however did not go all the way; it stops short of ensuring that state legislations on panchayat government and urban local government would mandatory have to translate the constitutional scheme of decentralization into the state specific legislations. There was no compulsion to infuse the constitutional scheme of governance with a parallel List-IV for Local Government similar to the distribution of powers listed in List-I, II & III for State List, Union List and Concurrent List. The failure to clearly delineate this has contributed to various state governments opting for devolution of powers to the extent thought necessary and safe by the ruling Government. In Tamil Nadu devolution of 29 powers outlined in the 73rd Amendment and 18 powers in the 74th Amendment has not been introduced by way of amendment to the Tamil Nadu Panchayat Act 1994. While matters like reservation for Schedule Castes and Schedule Tribes and Women, establishment of State Finance Commission, State Election Commission have been obligatory. Tamil Nadu Government has chosen to reduce this devolution of powers to mere disempowered elected panchayat functionaries assisting the bureaucracy in implementation of various schemes and public works by passing from time to time mere government orders. 

Until today neither powers nor finance or State Government personnel have been decentralized and made accountable to the elected Local Government system in Tamil Nadu. A corollary of not instituting a List-IV in the scheme of Governance in the Constitution also left the Local Government system with no powers to legislate or adjudicate in important legislative matters concerning self – reliance dispute resolutions etc. Hence all law including Government Orders is made by the State or Central Government on behalf of Local Government.  In short, in Tamil Nadu, Local Government both in rural and urban areas continue to function under the controlling powers of the bureaucracy except in the village panchayat system where village panchayat presidents are not only the elected representatives but are also vested with powers as the executive of the village panchayat. Several earlier powers which were vested with officials of the Block Development Office were removed in 1996 and located in the powers of the village panchayat president.

Consistent with the spirit of the 73rd Amendment of the Constitution the Panchayat Government structure in Tamil Nadu needs to be radically restructured towards local self-governance and strengthening of women and other oppressed peoples in grassroots democracy. This again requires increasing awareness and advocacy campaign efforts to achieve the reforms.

In Tamil Nadu we need to continue to lobby with the major political parties like DMK, AIADMK and others who have a presence in the Parliament and also to advocate with Union Government and other national political parties to introduce a Constitutional Amendment guaranteeing a separate List for Local Government called List IV. Besides the consistent lobbying for collective support for strengthening the panchayat government, it is also necessary to engage in advocacy and lobbying for protecting the democratic structure of local government without any adverse changes.  There is also a need to lobby for transfer of 50% funds and personnel of the State Government to the Panchayats, to repeal section 205 of the Tamil Nadu Panchayat Act which empowers District Collectors to dismiss elected panchayat president and other main demands of the Federation. This requires to also work with academics, universities, political activists, ngo’s and people’s movements to build such a campaign.

Since the Introduction of Constitutional 73rd Amendment, (i.e.) Article 243A to 243K including, Schedule 11, it was thought that it would be imperative on the state governments to devolve powers, planning, finance and personnel to the 3 tyres of Panchayat Government. This article (243G) gave the legislature of a state the option of “may, by law endow the panchayats with such powers and authority as may be necessary to enable them to function as institutions of self-government”. It left it non mandatory to the state legislature to devolve the 29 powers as listed in schedule 11. Hence, 20 years after the Constitution Amendment most state legislatures have preferred not to devolve powers, authorities and responsibilities to panchayats and those who have attempted have done so in a very limited manner.

However again with regard to the Gram sabha (Article 243A) it is left to the State legislature to devolve powers to exercise and perform such functions at the village level. However in most states Gram sabha have not been entrusted with powers because it has been left to the option of the state Government. With regard to the Composition of Panchayats (Article 243C), in many states there is no linkage between the 3 tyres of panchayat village, union & districts since the state government “may by law provide for the representation of the chairpersons of the village panchayats in the panchayats at the intermediate level”.

On the other hand the 73rd amendment made every states compulsory to hold election for the 3 tyres of panchayat government to hold elections for every 5 years, to give reservation for the Scheduled Castes, Scheduled Tribes as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that panchayat as the population of the Scheduled Castes or Scheduled Tribes in that panchayat area, and one third of the total number of seats reserved shall be reserved to women belonging to the scheduled castes or as the case may be the Scheduled Tribes, Further it is mandate to provide 33% reservation for women for each level of panchayats. The Amendment also directs all the states to constitute a finance commission to review financial position and make recommendations.

Factors of Disempowerment faced by Dalit panchayat presidents 

Even after so many years, the situations of dalits remain the same.  They are away from development. In panchayats reserved for dalits, the presidents face innumerable problems on the basis of discrimination and untouchability practices. Dalit panchayat presidents work under the constant threat, from the dominant community (caste Hindu groups). It is evident that the dominant caste that have been controlling the affairs of the village and the rural economy, cannot tolerate the changes that are being brought by the decentralised democratic institution. Therefore from 1996 onwards after the local bodies elections, mainly in dalit headed panchayats, non-functioning of panchayats,, tension, violence, murder of elected representatives are happening in order to prevent them from functioning.

Even after 4th phase of panchayat election (2011), there are incidents of discrimination, untouchability issues faced by dalit panchayat presidents. Although more and more dalits are executing their power as presidents, still many newly elected face lots of challenges, like not allowed to sit in president’s chair, to hoist national flag etc., District administration is not providing support to these presidents. When they try to protect the common lands and resources, revenue officials and police where not coming in support of dalit panchayat presidents. Non co-operation of ward members, vice presidents especially not signing in cheques there by preventing presidents from implementing any schemes, welfare measures etc., are continuing.

There is also a fact that many dalit presidents as part of their federations started raising their voices against their odds by way of agitations, complaining to district / state administration. These federations at district, block, and state level should be supported.

Factors of disempowerment faced by women Panchayat Leaders 

Women are not allowed to freely discharge their duties as elected representatives.  In several cases the male relatives of women members function and discharge the official duties in their place. In the case of scheduled caste women who are not formally educated interference and control by benami members of a dominant caste is the reality.  In the case of women village panchayat ward members generally they are treated as non-entities. Any bold decision regarding the panchayat especially in terms of corruption, accountability and transparency in functioning is met by very hostile males / dominant caste, landlord and trade interests including threats to life and family.

Domination and control by panchayat clerks is a major obstacle.  Panchayat clerks are invariably male and they continuously withhold information or provide misguiding advice.  Schedule caste and scheduled tribe women are often at the mercy of panchayat clerks. Constant male / dominant caste corrupting influence is a major obstacle.  Entrenched male / dominant caste channels of bribe and looting of common village resources and earmarked finances, encroachment of lands and waterbodies vested in Panchayats force women into helplessness or acceptance. When the President is male and the Vice President is female she is forced to sign the cheque even for purposes she does not agree (In Tamil Nadu, the village panchayat account is operated jointly).

Constant denial of information to elected women representatives by clerical persons and higher state government bureaucracy and by elected male members. Cultural attitude of the males and male elected representatives that women cannot be leaders, women cannot be in a management position, women are not good administrators, public work will neglect the family, women are only good within the house and for rearing and bearing a family etc are all very disempowering factors.

Lack of sufficient formal schooling to manage panchayat administration, records, finances etc. In several cases women have even after three years not given access to the panchayat office keys & registers.  In a few cases Women Presidents because of their lack literacy have signed cheques made out by the clerks without knowing procedures.  After this petitions are filed before the collector accusing women of fraud. Regular threat by local politicians especially in matters of implementing developmental works, licensing and managing panchayat properties. Lack of support structures – Very limited support from the women’s movement or other social movements especially in times of threat or crisis.

 

Historical oppression which has pushed women into a culture of silence – women in panchayats lack the confidence to speak up in front of males or challenge undemocratic / corrupt practices – constant use of discriminatory words by males. Even a Women Panchayat President not standing up when a dominant caste member enters the office is construed as arrogance and met with severe hostility and abusive language. Public administration / finance management skills, insufficient skills, communication opportunities and knowledge for running a public institution and no access to training on complicated administrative and financial matters. The double role of managing a public institution and upbringing of the family.

Why this Campaign 

Political democracy can flourish best in conditions of freedom, economic and social equality and democracy; lakhs of new leadership among women and dalits that the October 2011 local body election has thrown up has the potential to galvanise the movement for this real participatory democracy from below.  This process must be sustained. To achieve this it is essential to support the networking of women and dalits from below and enable them to associate to achieve their demands. It is also crucial to continue to strengthen the elected Women Federation and enable elected Dalit federation to give a call for rebuilding the formation of a state level movement (Federation) of all elected leaders from the village panchayat government. Women’s rights and the rights of dalits are an integral part of human rights and democratic development.  Popular participation, grassroots democracy and transparent governance are essential pillars of sustainable development.

Women and Dalit leadership continue to be discriminated in the matter of participation in public life and denied access to political power.  They need the necessary knowledge and skills to effectively perform their governance role as elected members of local bodies and exercise their powers. Real decentralised governance, grassroots democracy and power to the people can be achieved only when women, dalits and other disadvantaged sections who have been elected, participate actively on an informed basis, enforce their rights and are free to perform their duties in an environment of dignity and security.

Panchayat Government is the First Government. Panchayat power is based on people’s power and the urge for participatory democracy. Gram Sabha is the Central Institution for the promotion of participatory democracy. This will provide opportunities for the exploited and marginalised communities to raise their voices against continued inequalities, denial of freedoms, discrimination and social injustice.

Hence there is a need of initiating a Campaign for further Constitutional Amendment to actually Amend so that State Government will mandatorily have to devolve powers to rural Local Government and as per distribution of powers in the Constitution the creation of a new list titled List IV which will detail powers that will be vested with Local Government. Activists, People’s Movements, Lawyers, Academicians, Researches etc., should be involved in this campaign.

Prepared by Human Rights Advocacy and Research Foundation – HRF

The campaign: Need and journey so far

The national campaign was initiated to promote decentralization by further constitutional amendments to make it mandatory for state governments to devolve all 29 powers, finances and responsibilities to Panchayat Government. There needs to be public opinion to put this on the national agenda and to ensure that the constitutional amendments are done, so that the requisite constitutional architecture is in place for effective local governance and functioning institutions of grassroots democracy. The focus of the campaign is to bring about these constitutional amendments.

The campaign started in 2014 and has had four consultations. Two national consultations have been held so far, one in New Delhi and another in Bangalore. Two state level consultations have been held in Kerala and Tamil Nadu. Over 200 civil society organizations (CSOs) and individuals have participated in these consultations and have become a part of the campaign.

National Consultation for strengthening local government Read more