Features of the Act

The features (or the provisions) of the PESA Act are as follows:

1. A state legislation on the Panchayats in the Scheduled Areas shall be in consonance with the customary law, social and religious practices and traditional management practices of community resources.

2. A village shall ordinarily consist of a habitation or a group of habitations or a hamlet or a group of hamlets comprising a community and managing its affairs in accordance with traditions and customs.

3. Every village shall have a Gram Sabha consisting of persons whose names are included in the electoral rolls for the Panchayat at the village level.

4. 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.

5. Every Gram Sabha shall-

(i) approve of the plans, programmes and projects for social economic development before they are taken up implementation by the Panchayat at the village level; and

(ii) be responsible for the identification of beneficiaries under poverty alleviation and other programmes.

6. Every Panchayat at the village level shall be required to obtain from the Gram Sabha a certification of utilisation of funds for the above plans, programmes and projects.

7. The reservation of seats in the Scheduled Areas in every Panchayat shall be in proportion to the population of the communities for whom reservation is sought to be given under Part IX of the Constitution. However, the reservation for the Scheduled Tribes shall not be less than one-half of the total number of seats. Further, all seats of Chairpersons of Panchayats at all levels shall be reserved for the Scheduled Tribes.

8. The state government may nominate such Scheduled Tribes which have no representation in the Panchayat at the intermediate level or the Panchayat at the district level. But such nomination shall not exceed one-tenth of the total members to be elected in that Panchayat.

9. The Gram Sabha or the Panchayats at the appropriate level shall be consulted before making the acquisition of land in the Scheduled Areas for development projects and before resettling or rehabilitating persons affected by such projects in the Scheduled Areas. However, the actual planning and implementation of the projects in the Scheduled Areas shall be coordinated at the state level.

10. Planning and management of minor water bodies in the Scheduled Areas shall be entrusted to Panchayats at the appropriate level.

11. The recommendations of the Gram Sabha or the Panchayats at the appropriate level shall be mandatory for grant of prospecting licence or mining lease for minor minerals in the Scheduled Areas.

12. The prior recommendation of the Gram Sabha or the Panchayats at the appropriate level shall be mandatory for grant of concession for the exploitation of minor minerals by auction.

13. While endowing Panchayats in the Scheduled Areas with such powers and authority as may be necessary to enable them to function as institutions of self-government, a State Legislature shall ensure that the Panchayats at the appropriate level and the Gram Sabha are endowed specifically with-

(i) the power to enforce prohibition or to regulate or restrict the and consumption of any intoxicant

(ii) the ownership of minor forest produce

(iii) the power to prevent alienation of land in the Scheduled Ar and to take appropriate action to restore any unlawfully alien land of a Scheduled Tribe

(iv) the power to manage village markets

(v) the power to exercise control over money lending to Scheduled Tribes

(vi) the power to exercise control over institutions and functionarie all social sectors

(vii) the power to control local plans and resources for such p including tribal sub-plans

14. The State Legislations shall contain safeguards to ensure that Panchayats at the higher level do not assume the powers and authority of any Panchayat at the lower level or of the Gram Sabha.

15. The State Legislature shall endeavour to follow the pattern of the Sixth Schedule to the Constitution while designing the administrative arrangements in the Panchayats at district levels in the Scheduled Areas.

16. Any provision of any law (relating to Panchayats in the Scheduled Areas) which is inconsistent with the provisions of this Act shall cease to be in force at the expiry of one year from the date on which this Act receives the assent of the President7.

However, all the Panchayats existing immediately before such date shall continue till the expiry of their term, unless dissolved by the State Legislature sooner.

The Second Administrative Reforms Commission of India (2005- 2009) has summarized the sources of revenue of the Panchayati Raj Institutions (PRIs) and their financial problems in the following way7a:

1. A major portion of Part IX of the Constitution deals with structural empowerment of the PRIs but the real strength in terms of both autonomy and efficiency of these institutions is dependent on their financial position (including their capacity to generate own resources). In general, Panchayats in our country receive funds in the following ways:

(i) Grants from the Union Government based on recommendations of the Central Finance Commission as Article 280 of the Constitution.

(ii) Devolution from the State Government based on recommendations of the State Finance Commission as per Ar 243-I.

(iii) Loans / grants from the State Government.

(iv) Programme-specific allocation under Centrally Spons Schemes and Additional Central Assistance.

(v) Internal Resource Generation (tax and non-tax).

2. Across the country, States have not given adequate attention to fiscal empowerment of the Panchayats. The Panchayats own resources are meager. Kerala, Karnataka and Tamil Nadu are the states which are considered to be progressive in PRIs empowerment but even there, the Panchayats are heavily dependent on government grants. One can draw the following broad conclusions:

(i) Internal resource generation at the Panchayat level is weak. is partly due to a thin tax domain and partly due to Pancha own reluctance in collecting revenue.

(ii) Panchayats are heavily dependent on grants from Union State Governments.

(iii) A major portion of the grants both from Union as well as the S Governments is scheme specific. Panchayats have lim discretion and flexibility in incurring expenditure.

(iv) In view of their own tight fiscal position, State Governments not keen to devolve funds to Panchayats.

(v) In most of the critical Eleventh Schedule matters like prim

education, healthcare, water supply, sanitation and m irrigation even now, it is the State Government which is dire responsible for implementation of these programmes and he expenditure.

(vi) Overall, a situation has been created where Panchayats h responsibility but grossly inadequate resources.

3. Though, in absolute terms, the quantum of funds the Union/State Government transfers to a Panchayat forms the major component of its receipt, the PRI’s own resource generation is the soul behind its financial standing. It is not only a question of resources; it is the existence of a local taxation system which ensures people’s involvement in the affairs of an elected body. It also makes the institution accountable to its citizens.

4. In terms of own resource collection, the Gram Panchayats are comparatively in a better position because they have a tax domain of their own, while the other two tiers are dependent only on tolls, fees and non-tax revenue for generating internal resources.

5. State Panchayati Raj Acts have given most of the taxation powers to Village Panchayats. The revenue domain of the intermediate and District Panchayats (both tax as well as non- tax) has been kept much smaller and remains confined to secondary areas like ferry services, markets, water and conservancy services, registration of vehicles, cess on stamp duty and a few others.

6. A study of various State Legislations indicates that a number of taxes, duties, tolls and fees come under the jurisdiction of the Village Panchayats. These interalia include octroi, prop- erty/house tax, profession tax, land tax/cess, taxes/tolls on vehicles, entertainment tax/fees, license fees, tax on non- agriculture land, fee on registration of cattle, sanitation/drainage/ conservancy tax, water rate/ tax, lighting rate/tax, education cess and tax on fairs and festivals.

Even after conferring the constitutional status and protection through the 73rd Amendment Act (1992), the performance of the Panchayati Raj Institutions (PRIs) has not been satisfactory and not upto the expected level. The various reasons for this sub-optimal performance are as follows7b:

1. Lack of adequate devolution: Many States have not taken adequate steps to devolve 3Fs (i.e., functions, funds and functionaries) to the PRIs to enable them to discharge their constitutionally stipulated function. Further, it is imperative that the PRIs have resources to match the responsibilities entrusted to them. While SFCs (state finance commissions) have submitted their recommendations, not many few States have implemented these or taken steps to ensure the fiscal viability of the PRIs.

2. Excessive control by bureaucracy: In some States, the Gram Panchayats have been placed in a position of subordination. Hence, the Gram Panchayat Sarpanches have to spend extraordinary amount of time visiting Block Offices for funds and/or technical approval. These interactions with the Block staff office distort the role of Sarpanches as elected representatives.

3. Tied nature of funds: This has two implications. The activities stated under a certain scheme are not always appropriate for all parts of the district. This results in unsuitable activities being promoted or an under-spend of the funds.

4. Overwhelming dependency on government funding: A review of money received and own source funds shows the overwhelming dependence of Panchayats on government funding. When Panchayats do not raise resources and instead receive funds from outside, people are less likely to request a social audit.

5. Reluctance to use fiscal powers: An important power devolved to GP (Gram Panchayat) is the right to levy tax on property, business, markets, fairs and also for services provided, like street lighting or public toilets, etc. Very few Panchayats use their fiscal power to levy and collect taxes. The argument pushed by Panchayat heads is that it is difficult to levy tax on

your own constituency, especially when you live in the community.

6. Status of the Gram Sabha: Empowering the Gram Sabhas could have been a powerful weapon for transparency, accountability and for involvement of the marginalized sections. However, a number of the State Acts have not spelt the powers of Gram Sabhas nor have any procedures been laid down for the functioning of these bodies or penalties for the officials.

7. Creation of Parallel Bodies: Often, Parallel Bodies (PBs) are created for supposedly speedy implementation and greater accountability. However, there is little evidence to show that such PBs have avoided the evils including that of partisan politics, sharing of spoils, corruption and elite capture. Missions (in particular) often bypassing mainstream programmes, create disconnect, duality, and alienation between the existing and the new structures and functions. PBs usurp the legitimate space of PRIs and demoralize the PRIs by virtue of their superior resource endowments.

8. Poor Infrastructure: A large number of Gram Panchayats in the

country do not have even full time Secretary. Around 25 percent of the Gram Panchayats do not have basic office buildings. The database for planning, monitoring etc., are lacking in most of the cases.

A large number of elected representatives of PRIs are semi- literate or literate and know little about their roles & responsibilities, programmes, procedures, systems. Often for want of good, relevant and periodic training, they are not able to perform their functions properly.

Although all the District and Intermediate Panchayats are connected with computers, only around 20% Gram Panchayats reported to be having computing facility. In some States, Village Panchayats do not have any computing facility.

Table 38.2 Articles Related to Panchayats at a Glance

Table 38.3 Name of Panchayati Raj Institutions in the States (2019)B‌

Table 38.4 Milestones in the Evolution of Panchayati Raj9‌

1964-

77

at Nagaur in Rajasthan on 2nd October Kerala District Council Bill is introduced in Kerala Assembly; lapses after Assembly is dissolved

Decline of first generation Panchayati Raj Institutions

II. Growth and Decline of Second Generation Panchayats

1978 Panchayat elections are held in West Bengal on party basis on 4th June-marking the beginning of second generation of Panchayati Raj.

Ashok Mehta Committee on working of panchayats, appointed on 12 December 1977, submits its report on 21 August

1983 Karnataka government enacts new PR Act

1984 Hanumantha Rao Committee on district level planning, appointed by Planning Commission in September 1982, submits its report in May

1985 Karnataka PR Act receives President’s assent in July; comes into force on 14th August

1985 G.V.K. Rao Committee on administrative aspects of rural development, appointed by Planning Commission on 25 March, submits its report in December

1986 Andhra Pradesh follows West Bengal and Karnataka Panchayati Raj Model

1987 Karnataka holds panchayat elections in January

1990-

92

Panchayats are dissolved and brought under administrators in Karnataka

III. Constitutionalisation of Panchayati Raj

1986 L.M. Singhvi Committee submits its report on 27 November; recommends constitutional status for panchayats

1988 Consultative Committee of Parliament appoints a sub- committee under chairpersonship of P.K. Thungon to consider Constitutional Amendment

1989 64th Constitutional Amendment Bill is introduced in Parliament on 15 May; is defeated in Rajya Sabha on 15 October

1990 74th Constitutional Amendment Bill is introduced in Parliament on 7 September; lapses on dissolution of Lok Sabha

Table 38.5 Committees Related to Panchayati Raj (After Constitutionalisation)

NOTES AND REFERENCES‌

1. The subject of 'Local Government’ is mentioned in the State List under the Seventh Schedule of the Constitution.

2. This bill was passed by the Lok Sabha on 22 December, 1992, and by the Rajya Sabha on 23 December, 1992. Later, it was approved by the 17 state assemblies and received the assent of the president on 20 April, 1993.

3. The Act defines all these terms in the following manner:

(a) Panchayat means an institution (by whatever name called) of selfgovernment for rural areas.

(b) Village means a village specified by the governor by public notification to be a village for this purpose, and includes a group of villages so specified.

(c) Intermediate level means a level between the village and district levels specified by the governor by public notification for this purpose.

(d) District means a district in a state.

4. A judge of a high court can be removed from his office by the president on the recommendation of the Parliament. This means that a state election commissioner cannot be removed by the governor, though appointed by him.

5. At present (2019), ten states of India have scheduled areas. These are: Andhra Pradesh, Telangana, Jharkhand, Chhatisgarh, Gujarat, Himachal Pradesh, Madhya Pradesh, Maharashtra, Odisha and Rajasthan. Presently (2019), there are a total of ten tribal areas (autonomous districts) in the four states of Assam (3), Meghalaya (3), Tripura (1) and Mizoram (3).

6. S.K. Singh, Panchayats in Scheduled Areas, Kurukshetra, May 2001, p. 26.

7. This Act received the assent of the President on 24 December, 1996.

7a. Second Administrative Reforms Commission, Government of India, Report on Local Governance, 2007, pp. 151-154.

7b. Ministry of Panchayati Raj, Government of India, Roadmap for the Panchayati Raj (2011-16), pp. 11-12, 23 and 7-8.

8. Report of the Thirteenth Finance Commission (2010-2015), Volume II, December 2009, pp. 424-426.

9. Panchayati Raj Update, October, 2002, Institute of Social Sciences, New Delhi.

39 Municipalities‌

The term 'Urban Local Government’ in India signifies the governance of an urban area by the people through their elected representatives. The jurisdiction of an urban local

government is limited to a specific urban area which is demarcated for this purpose by the state government1 .

There are eight types of urban local governments in India- municipal corporation, municipality, notified area committee, town area committee, cantonment board, township, port trust and special purpose agency.

The system of urban government was constitutionalised through the 74th Constitutional Amendment Act of 1992. At the Central level, the subject of 'urban local government’ is dealt with by the following three ministries:

(i) Ministry of Housing and Urban Affairs.

(ii) Ministry of Defence in the case of cantonment boards

(iii) Ministry of Home Affairs in the case of Union Territories