Article 40, and the Road to the 73rd and 74th Amendments

Do not say article 40 was worthless. It is the source of the phrase "units of self-government", it was the constitutional warrant for every State panchayat Act passed between 1950 and 1992, and it is the provision the 73rd Amendment was enacted to make real. What it lacked was enforceability.

What went wrong between 1950 and 1992

Four failures, and an answer should name them because they explain every feature of the amendments that followed.

1. Panchayats existed only if a State wanted them. Some States legislated early, others barely at all, and the pattern had no relation to need.

2. Elections were not held. This is the central failure. A State could dissolve or supersede a panchayat and then simply not hold the election, sometimes for a decade or more, and nobody could compel it. Local government in much of India was run by appointed administrators.

3. Powers and funds were withheld. Where panchayats existed, States devolved functions without money or staff, so the body was responsible for services it could not deliver.

4. Those excluded were excluded again. Without reservation, the composition of a village body reproduced the composition of village power, which is Ambedkar's objection at chapter 880 turning out to be correct in practice.

Read the 73rd Amendment against this list and every one of its features is an answer to one item on it: constitution of panchayats is mandatory; a five year term with elections before it expires and within six months of dissolution; a State Election Commission to conduct them; a State Finance Commission on money; and reservation of seats and of chairperson offices.

The committees

MU's topic is "beginnings" and then "key features", so the committees can be stated compactly. Each identified a defect and each was ignored, which is itself the argument for a constitutional amendment.

Then two failed Bills. The Constitution (Sixty-fourth Amendment) Bill, 1989 was passed by the Lok Sabha and failed in the Rajya Sabha, largely on the objection that it centralised control over what was a State subject. A further Bill in 1990 lapsed when the Lok Sabha was dissolved.

And then the two Acts. The Constitution (Seventy-third Amendment) Act, 1992 inserted Part IX, The Panchayats, with effect from 24 April 1993, and the Constitution (Seventy-fourth Amendment) Act, 1992 inserted Part IXA, The Municipalities, with effect from 1 June 1993.

Note what the amendments did and did not do about the federal objection. Almost every article in Part IX says the Legislature of a State may by law provide. The Constitution fixes what a State cannot avoid, which is the existence of the bodies, the elections, the term, the reservation and the commissions, and leaves the content of the powers to the State. That is the settlement between the 1989 objection and the 1992 Acts.

A worked example

A State has a Panchayat Act of 1961 passed under article 40. In 1975 it supersedes every zila parishad in the State and appoints administrators. No elections are held until 1990.

Before 1993. Nothing can be done. Article 40 is a Directive Principle and by article 37 is not enforceable by any court. The State Act permits supersession, the State is not obliged to hold an election under it, and a villager has no right on which to sue.

After 1993. Every step is unlawful. By article 243E a panchayat continues for five years from the date appointed for its first meeting, an election to constitute a panchayat must be completed before the expiry of its duration and, where it is dissolved, within six months of the dissolution; and a panchayat constituted after a dissolution continues only for the remainder of the original term, which removes the incentive to dissolve early. By article 243K the conduct of the election is vested in a State Election Commission, not in the State Government. And the Supreme Court has enforced this, in Kishansing Tomar v. Municipal Corporation of the City of Ahmedabad, (2006) 8 SCC 352, holding that elections must be held before the expiry of the term and that the State authorities must provide the State Election Commission whatever is needed, including police and staff, since the constitutional mandate is not to be defeated by administrative excuses.

That single change, from unenforceable direction to enforceable term, is the substance of the 73rd Amendment, and it is the best short answer to why article 40 was not enough.

Distinctions that carry marks

What this is NOT

Article 40 was not repealed. It remains in Part IV, and the amendments are the steps taken in obedience to it.

The amendments did not create local government. Panchayats and municipalities existed, some of them from the nineteenth century. What the amendments created was the obligation to have them and to elect them.

They did not make local bodies a third tier of the federation in the full sense. They are constituted by State law, their powers come from State law, and their money comes largely from the State. The Constitution guarantees their existence, not their strength.

And they did not settle Gandhi against Ambedkar. They adopted Gandhi's institution with Ambedkar's safeguards attached, which is chapter 880's conclusion.

Quick revision

1. Article 40: the State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government. Note the phrase, and that the powers were left unspecified.
2. Article 37: Part IV is not enforceable by any court, though fundamental in the governance of the country and a duty of the State in making laws. So there was no right and no remedy.
3. Four failures 1950 to 1992: panchayats only where a State chose; elections not held, often for years; powers and funds withheld; and no reservation, so village power reproduced itself.
4. Committees: Balwantrai Mehta 1957, democratic decentralisation and the three tier structure; Ashok Mehta 1978, two tiers with the district as the unit; G. V. K. Rao 1985, the district as the planning unit; L. M. Singhvi 1986, constitutional status.
5. Then: the 64th Amendment Bill 1989 failed in the Rajya Sabha on the federal objection, a 1990 Bill lapsed, and the 73rd (Part IX, 24 April 1993) and 74th (Part IXA, 1 June 1993) Amendments were enacted in 1992.
6. The settlement with the States: the Constitution fixes existence, elections, term, reservation and the two commissions; the content of the powers is left to State law, which is why Part IX repeatedly says "the Legislature of a State may, by law".

Test yourself

1. Set out article 40 and explain each of its three parts. The State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government. "Take steps to organise" is a direction to create, since in 1950 there was little to protect. "Units of self-government" means bodies that govern rather than administer somebody else's programme, and it is the phrase later repeated in article 243G. "Such powers and authority as may be necessary" leaves the powers unspecified, which was the gap through which the Article was emptied, since the State that was to confer the powers decided how few to confer.

2. Why did a Directive Principle produce so little? Because by article 37 the provisions of Part IV are not enforceable by any court, although they are fundamental in the governance of the country and it is the duty of the State to apply them in making laws. A villager whose panchayat had never been constituted, or had been superseded and left unelected for a decade, had no right on which to sue and therefore no remedy. The consequence was that panchayats existed only where a State chose to create them, elections were held at the State's convenience, functions were devolved without money or staff, and the composition of village bodies reproduced the composition of village power.

3. Name the committees and state what each contributed. Balwantrai Mehta in 1957 recommended democratic decentralisation through a three tier structure of village panchayat, block level panchayat samiti and district zila parishad, with the middle tier as the executive body, which is the origin of the three tier design. Ashok Mehta in 1978 found panchayati raj in decline and recommended a two tier structure with the district as the first point of decentralisation, regular elections, reservation for the Scheduled Castes and Scheduled Tribes, and open participation by parties. G. V. K. Rao in 1985 found development administration bureaucratised and the panchayats bypassed, and recommended the district as the planning unit. L. M. Singhvi in 1986 recommended constitutional status in a separate Part, with the Gram Sabha as the base and guaranteed elections, which is what was eventually enacted.

4. What happened between the Singhvi report and the Amendments? The Constitution (Sixty-fourth Amendment) Bill, 1989 was passed by the Lok Sabha but failed in the Rajya Sabha, principally on the objection that it intruded on local government as a State subject and would let the Union deal directly with local bodies over the heads of the States. A further Bill in 1990 lapsed on the dissolution of the Lok Sabha. The Seventy-third and Seventy-fourth Amendment Acts of 1992 answered the federal objection by fixing only what a State cannot avoid, namely the existence of the bodies, the elections, the five year term, reservation and the two commissions, while leaving the content of the powers to State legislation, which is why Part IX repeatedly provides that the Legislature of a State may by law make provision.

5. Give a concrete illustration of the difference the amendments made. Take a State that supersedes every zila parishad in 1975 and holds no election until 1990. Before 1993 nothing could be done, because article 40 was unenforceable and the State Act permitted supersession without compelling an election. After 1993 each step is unlawful: article 243E gives a panchayat a term of five years, requires the election to be completed before the expiry of that term or within six months of a dissolution, and confines a panchayat constituted after dissolution to the remainder of the original term; article 243K vests the conduct of elections in a State Election Commission rather than the State Government; and in Kishansing Tomar v. Municipal Corporation of the City of Ahmedabad the Supreme Court held that elections must be held before the expiry of the term and that the State must supply the Commission with the staff and police it needs, so that administrative difficulty is no answer to the constitutional mandate.