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Volume Iv: Local Self Governments and Decentralized Governance

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Volume Iv: Local Self Governments and Decentralized Governance D E N C A N S A T N N R E E V M O T N G R E D V CH 2010 E ON ATE RELATIONS O Z I G REPOR L MAR OLUME - IV F A COMMISSION V L R E T S N L E A C CENTRE-ST C E O D L REPORT OF THE COMMISSION ON CENTRE-STATE RELATIONS. MARCH 2010 VOLUME - IV LOCAL SELF GOVERNMENTS AND DECENTRALIZED GOVERNANCE COMMISSION ON CENTRE-STATE RELATIONS REPORT VOLUME IV LOCAL SELF GOVERNMENTS AND DECENTRALIZED GOVERNANCE MARCH 2010 THE COMMISSION CHAIRPERSON Shri Justice Madan Mohan Punchhi (Retd.) Former Chief Justice of India MEMBERS Shri Dhirendra Singh Shri Vinod Kumar Duggal Former Secretary to the Former Secretary to the Government of India Government of India Dr. N.R. Madhava Menon Shri Vijay Shanker Former Director, Former Director, National Judicial Academy, Bhopal, and Central Bureau of Investigation, National Law School of India, Bangalore Government of India Dr. Amaresh Bagchi was a Member of the Commission from 04.07.2007 to 20.02.2008, the date he unfortunately passed away. The Commission expresses its deep gratitude to late Dr. Bagchi for his signal contribution during his tenure as a Member. SECRETARIES Shri Amitabha Pande (17.07.2007 - 31.05.2008) Shri Ravi Dhingra (25.06.2008 - 31.03.2009) Shri Mukul Joshi (01.04.2009 - 31.03.2010) i ii The Commission on Centre-State Relations presents its Report to the Government of India. Justice Madan Mohan Punchhi Chairman Dhirendra Singh Vinod Kumar Duggal Member Member Dr. N.R. Madhava Menon Vijay Shanker Member Member New Delhi 31 March, 2010 iv INDEX Chapter No. Subject Page Nos. 1. INTRODUCTION 1 2. HISTORICAL EVOLUTION OF 7 LOCAL BODIES 3. SPECIAL PROVISIONS FOR THE FIFTH AND 15 SIXTH SCHEDULE AREAS AND THE NORTH EASTERN REGION 4. SITUATION TODAY 41 5. DISTRICT PLANNING 85 6. PERSPECTIVE FROM THE 97 HIGHER JUDICIARY 7. RESPONSES FROM THE STAKEHOLDERS 107 8. RECOMMENDATIONS 121 9. SUMMARY OF RECOMMENDATIONS 167 BIBLIOGRAPHY 173 v vi CHAPTER 1 INTRODUCTION CONTENTS Sections/Headings Para Nos. Page Nos. 1.1 Introduction 1.1.01 – 1.1.06 3-5 1 Report of the Commission on Centre-State Relations 2 1 INTRODUCTION 1. 1 Introduction 1.1.01 We have seen earlier how federalism has assumed contemporary importance, having become the most effective means to reconcile differences in the polity arising out of the need to unify on the one hand and giving full scope to the forces of diversity on the other. Whereas reconciliation between unity and diversity can very well be effected by adopting a two tier structure of a federal constitution with power and governance being shared between the Union and States, and indeed the Constitution makers did adopt this model, contemporary trends have highlighted the inefficiencies of continuing with this system. 1.1.02 If democracy is the cornerstone on which modern constitutions are built then enhancement of democracy must be inbuilt in the system to ensure its continued vitality. This enhancement can be achieved by (a) making it more participatory or as it is sometimes said “maximize citizen preferences” (b) by making it more responsive to peoples needs and aspirations; (c) by rendering it possible to use the creative genius of a larger number of people; (d) by making it more inclusive and (e) by making it more accountable and hence a better instrument of governance and development. Many modern Constitutions have hence opted for a third tier of Government to achieve the above objectives. 1.1.03 It is not as if grass root institutions have suddenly emerged. On the contrary a historical evolution has come full circle. Societies were earlier organized around small groups, tribes and clans with their own systems of governance. These were superseded by the advent of the Nation State which was a centralized institution for wielding power, and in most cases with minimum of peoples participation. The spread of democracy, grant of adult franchise; the involvement of masses of people in freedom movements, and the appreciation of diversity, all have led to greater participation of people in the 3 Report of the Commission on Centre-State Relations various instrumentalities of governance at the national and subnational levels and it is this quest to strengthen the democratic ideal for the good of the people that has led to an increased interest in grass roots democracy. Although the Constitution of India mandated the State to foster Panchayati Raj, the turning point came in 1993 when the Constitution 73rd and 74th Amendment Acts clothed Panchayati Raj with Constitutional status. This has brought about a multi-tiered complex federal system, wherein different tiers operate at different scales of activity, and where the activities of one impact on the others. It is our endeavour in this volume to examine the relevance and working of these institutions and to see to what extent the wishes of the Legislature (indeed the nation) have found fulfillment. 1.1.04 Within the three tier structure (National, State and Local) Panchayati Raj Institutions would, if properly organized, come closest to the concept of direct democracy as distinct from the representative democracy of the other tiers, owing to their size and closeness to the communities they serve. The relationship of local bodies, a term that we shall be using to connote urban and rural institutions of the third tier unless the context relates primarily to one of them, with other tiers of Government and with the community becomes crucial as this to a large extent impacts on the manner of their functioning and determines the success they achieve in realizing their objectives. 1.1.05 This relationship with the other tiers of Government and division of powers and responsibilities are highly formalized and governed by Constitutional provisions, statutes, and administrative procedures. They relate to (a) the legislative domain, which in the case of the third tier has not been conferred and stops at the State level, (b) the administrative domain (whereas in most cases this is coterminous with the legislative power, there is also provision to confer administrative jurisdiction to another tier) and (c) the financial domain whether given directly or through constitutional provisions mandating transfers, or by evolution of practices whereby transfers are directly affected in order to influence lower tiers to perform desired tasks. But there can also be a symbiotic relationship. Scholars distinguish between decentralization of jurisdiction which relates to functions and responsibilities exercised by each tier and decentralization of decision making wherein policy making at higher levels allows for participation of lower level tiers. Examples are given of instances where large number of functions are given (let us say for implementation) but a strict control is maintained by a higher level on content. As against this there are others where only a few functions have been given but greater 4 Introduction autonomy conferred. In the case of decentralized decision making, we need to see the institutional mechanisms devised to ensure participation. 1.1.06 As regards relationship with the community, present day thinking has veered towards linking local bodies more with civil society rather than with the community. The latter is considered to be patriarchal, restrictive and conformist wherein individual activities were tightly controlled in the name of the common good. Civil society on the other hand is an intermediate area of association distinct from the private sphere, the economy and the State. It is an area of social interaction which aims at fostering the diffusion of power; uses peaceful means to work for gender equality and social equity; seeks to build horizontal solidarity rather than vertical loyalties and encourages debate and autonomy of judgement rather than conformity and obedience. We need to see in what manner linkages have been established with civil society and whether there is need to formalize it. 5 Report of the Commission on Centre-State Relations 6 CHAPTER 2 HISTORICAL EVOLUTION OF LOCAL BODIES CONTENTS Sections/Headings Para Nos. Page Nos. 2.1 The Choice 2.1.01 – 2.1.02 9 2.2 Constituent Assembly 2.2.01 – 2.2.02 9-10 Decides 2.3 Pre-Independence 2.3.01 – 2.3.03 10-11 Initiatives 2.4 Post Independence 2.4.01 – 2.4.06 11-13 Initiatives 7 Report of the Commission on Centre-State Relations 8 2 HISTORICAL EVOLUTION OF LOCAL BODIES 2.1 The Choice 2.1.01 The choice before the Constituent Assembly was either to follow the Euro-American constitutional tradition (already introduced in India in a rudimentary form by the colonizing power) or to look for solutions embedded in India’s history and culture. The former tended to provide for centralized direct democracy and the latter a decentralized indirect democracy. It was also not merely a question of form. The instrument had to be suitable to bring about a social and economic revolution, once political independence had become a reality. The former was being practiced in the Western world and many of the colonized countries saw a model of development which could be reached by following the same instrumentalities. The latter model rejected the basic concepts of an urban oriented, nation state centred, configuration and propagated a village oriented life style in which the basic unit of representative Government was the village panchayat at the base. The rest was a hierarchy of indirectly elected bodies right upto the national level. 2.1.02 The strongest proponent of the Indian model was Mahatma Gandhi and his was an all encompassing view of how India should organize its polity and the values which should permeate all sections of society.
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