73rd amendment act- Panchayati Raj

Balwant Rai Mehta Committee (1957) was the first committee that recommended the establishment of the scheme of ‘democratic decentralization’ which ultimately came to be known as Panchayati Raj. Some of the major recommendations made by the committee are:

1. 1. Establishment of a three-tier panchayati raj system
   2. The village panchayats should be constituted with directly elected representatives
   3. Planning and development should be entrusted to them
   4. Adequate resources should be transferred to these bodies
   5. Proper system should be put place in to realize the devolution of powers

Rajasthan was the first state to establish Panchayati Raj. It was inaugurated in 1959 in Nagaur district. Most of the states created the system in their states. However, there were wide-ranging differences between them. Some states had adopted two-tier system, others three-tier and four-tier. The manner of devolution of power was also varying across the country.

Ashok Mehta Committee (1977)

Was appointed by the Janata government to make recommendations to strengthen and revive these institutions which were becoming weak. Some of its main recommendations were:

1. Three-tier system should be replaced with two-tier system
2. A district should be the first point for decentralization
3. ZP should be executive body
4. There should be official participation of the political parties
5. They should have compulsory powers of taxation
6. Regular social audit
7. Elections should be held within six months if Panchayati institutions are superseded
8. A minister for Panchayati raj should be appointed at the state
9. Reservation of seats for SC and ST
10. Constitutional recognition to these institutions

GVK Rao committee (1985)

It was appointed by the Planning Commission. The committee observed that bureaucratization of these institutions as the major reason behind the lackadaisical performance of panchayati institutions. Some of the important recommendations made by the committee are:

1. ZP should be unit for democratic decentralization
2. PRI at the district and lower levels should be assigned an important role with respect to planning, implementation and monitoring
3. A post of district development commissioner should be created. He should be in-charge of the development departments at district level
4. Elections to PRI should be conducted regularly

LM Singhvi committee (1986)

It was appointed by the Rajiv Gandhi government. Some of the recommendations made by this committee vis-à-vis PRI include:

1. It should be constitutionally recognized
2. Nyaya panchayats should be established for a cluster of villages
3. Placed emphasis on Gram Sabha as the centre for democratic decentralization
4. Village panchayats should have more resources
5. Judicial tribunals should be established to adjudicate judicial matters related to PRI

Though Rajiv Gandhi government and VP Singh government made efforts to entrust constitutional status to the PRI, the goal was achieved only during the time of Narasimha Rao government through the passage of 73^rd constitutional amendment act

Salient features of the act

Gram Sabha

• It is a village assembly consisting of all the registered voters in the area of a panchayat
• It can perform such functions as the state legislature entrusts it with

Three-tier system: It suggests PRI at village, intermediate and district level. Thus, bringing uniformity in the PRI. However, states having a population less than 20 lakh may not setup PRI

Election:

• All the members at the village, intermediate and district level shall be elected directly by the people.
• The chairperson of the intermediate and district level shall be indirectly elected
• Chairman of the panchayat shall be elected in such a manner as the state legislature provides for

Reservation of seats:

• Seats shall be reserved for Scheduled Castes and Scheduled Tribes in every Gram Panchayat, and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Panchayat
• Not less than one-third of the total number of seats reserved under shall be reserved for women belonging to Scheduled Castes, or as the case may be, the Scheduled Tribes.
• Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Gram Panchayat shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Gram Panchayat in such manner as may be prescribed
• The above reservation is provided for the position of chairperson too
• The act also authorizes the legislature of the state to make any reservations for backward classes

Duration of Panchayats:

• The act provides for a five-year term of office to the panchayat at every level. However, PRI can be dissolved before the expiration of the natural term
• Fresh elections to the PRI should be held:

• • Before the expiry of the natural term
  • In case of dissolution, before the expiry of a period of six months from the date of its dissolution

Disqualification:

• A person shall be disqualified for being chosen as or for being a member of the panchayat if he is so disqualified:

1. Under any law for the time being in force for the purpose of elections to the legislature of the state concerned
2. No person can be disqualified on the ground that he is less than 25 years of age if he has attained the age of 21 yeas
3. All questions related todisqualification shall be referred to such authority as the state legislature determines

State election commission:

• Superintendence, direction and control of the preparation of electoral rolls and the conduct of all elections to the panchayats shall be vested in the state election commission
• State election commissioner will be appointed by the governor. He shall not be removed from the office except in the manner and on the grounds prescribed for the removal of a judge
• The state legislature may make provision with respect to all matters relating to elections to the panchayats

Powers and functions: State legislature may endow the panchayats with such powers and authority as may be necessary to enable them to function as institutions of self-government

Finances: State legislature may authorize a panchayat to levy, collect and appropriate taxes, providing for making grants-in-aid to the panchayats, provide for constitution of funds for crediting all money of the panchayats

Finance Commission:

• The governor is empowered to create after every years finance commission which will review the financial position of the panchayats and suggest measures needed to improve the PRI and recommend on any other matter referred to it by the governor
• It shall make recommendations on the following matters:

1. 1. Distribution between the state and the panchayats from the net proceed of taxes
   2. Determination of taxes, duties, tolls and fees that may be assigned to the panchayats
   3. Grants-in-aid to the panchayats from the consolidated fund of the state

• State legislature will provide for the composition, qualification of the FC
• Central finance commission will also make recommendation on how to consolidate the financial position of the panchayat of a state based on the report of finance commission of the state

Audit: State legislature may provide the manner for auditing of PRI

Application to UT: The president of India may direct that provisions of this act shall apply to any union territory subject to such modification as he may specify

Exempted areas: It does not apply to Nagaland, Mizoram, Meghalaya, scheduled areas and the tribal areas, hill area of Manipur, Darjeeling district of WB. However, parliament may extend the provisions of this part to even these exempted areas with modification as it may specify. In this regard, parliament has enacted, ‘Provisions of the Panchayat (Extension to the scheduled areas) Act, 1996

Bar to interference of court: The act bars the interference by courts in the electoral matters of panchayats. It also mentions the delimitation related to PRI cannot be questioned by the court. Even election petitions shall be entertained based on such mechanism as specified by the state legislature

11^th schedule: The act inserted a new schedule which contained areas that come under the purview of the PRI

Compulsory provisions of the act

• Constitution of Gram Sabha in a village or a group of villages
• Establishment of panchayat at village, intermediate and district
• Direct elections to all the above
• Indirect election to the post of the chairperson of the panchayats at the intermediate and district level
• 21 years to be the minimum age for contesting
• Reservation of seats for SC and STs in panchayats at all levels
• Reservation of 1/3^rd seats for women in panchayats
• Fixing of tenure of 5 years and holding elections within six months in any event of supersession of any panchayat
• Establishment of state election commission
• Constitution of state finance commission after every 5 years to review the financial position of the panchayats

Voluntary provisions of the act

• Giving representation to members of the Parliament and state legislature at various levels of the panchayats
• Providing reservation of seats for backward classes
• Granting powers an authority to PRI
• Devolutions of powers and representation
• Granting financial powers to the panchayats

Panchayats (Extension to Scheduled Areas) Act, 1996 is a law enacted by Government of India to cover the “Scheduled Areas”, which are not covered in the 73rd Constitutional amendment. This particular act extends the provisions of Part IX to the Scheduled Areas of the country. PESA brought powers further down to the Gram Sabha level. The Gram Sabha in the Panchayat Act were entrusted with wide ranging powers starting from consultation on land acquisition to that of ownership over minor forest produces and leasing of minor minerals.

Under the PESA, the Gram Sabha or Panchayats at appropriate level shall have the following important powers:

• To be consulted on matters of land acquisition and resettlement.
• Grant prospecting license for mining lease for minor minerals and concessions for such activities. Planning and management of minor water bodies.
• The power to enforce prohibition or to regulate or restrict the sale and consumption of any intoxicant. The ownership of minor forest produces.
• The power to prevent alienation of land and to restore any unlawfully alienated land of a scheduled tribe. The power to manage village markets.
• The power to exercise control over money lending to scheduled tribes.
• Every gram Sabha shall be competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution

Problems with PESA:

• Dilution of role of Tribal Advisory Councils: PESA comes under the Fifth Schedule, which mandates Tribal Advisory Councils to oversee tribal affairs and also gives extrajudicial, extra constitutional powers to the Governors of each State to intervene in matters where they see tribal autonomy being compromised.
• However, the councils, with the Chief Minister as their chairperson, have evolved into a nonassertive institution amid the machinations of upper-class politics, and its representatives hardly speak against the State governments’ policies.
• The Governors, in order to have friendly relations with the Chief Ministers, have desisted from getting involved in tribal matters. Tribal activists have constantly complained that there is not even a single instance where the Governors have responded to their petitions for interventions in threatening crises, such as deepening clashes over land, mining or police excesses.
• Lack of coordination at Centre: Even if one were to expect proactive intervention from the Centre, PESA would get entangled in bureaucratic shackles. Two different ministries, the Ministry of Panchayati Raj and the Ministry of Tribal Affairs, have an overlapping influence on the implementation of PESA and they function almost without any coordination.
• Lack of operationalisation: In most of the state the enabling rules are not in place more than eight years after the adoption of the Act suggests that the state governments are reluctant to operationalise the PESA mandate.
• Ignoring the spirit of PESA: The state legislations have omitted some of the fundamental principles without which the spirit of PESA can never be realized. For instance, the premise in PESA that state legislations on Panchayats shall be in consonance with customary laws and among other things traditional management practices of community resources is ignored by most of the state laws
• Ambiguous definitions: No legal definition of the terms like minor water bodies, minor minerals etc. exist in the statute books. The states in their conformity legislations have also not defined the term leading to ambiguity and scope of interpretation by the bureaucracy.

In recent years, many reports ‘The Report of Expert Group of the Planning Commission on Development Challenges in Extremist Affected Areas’ (2008), ‘The Sixth Report of the Second Administrative Reforms Commission’ (2007), ‘The Balchandra Mungekar Committee Report’ (2009), etc. have clearly underlined the dismal situation of the implementation of PESA.

Therefore, there is an urgent need to opt for an effective device whereby maximum people can be informed, made aware and motivated to come forward for the proper implementation and execution of PESA. There is an urgent need to break the culture of silence among tribal and to strive for capacity building, sensitization and orientation to improve the tribal self-rule scenario