The 73rd Amendment: Panchayats

Article 243D: reservation of seats

The most examined article in Part IX.

Clause (1). Seats shall be reserved for the Scheduled Castes and the Scheduled Tribes in every panchayat, in the same proportion, as nearly as may be, as their population in that panchayat area bears to the total population, and the seats may be allotted by rotation to different constituencies.

Clause (2). Not less than one-third of the seats reserved under clause (1) shall be reserved for women belonging to the Scheduled Castes or the Scheduled Tribes.

Clause (3). Not less than one-third, including the seats reserved for Scheduled Caste and Scheduled Tribe women, of the total seats to be filled by direct election in every panchayat shall be reserved for women, allotted by rotation.

Clause (4). The offices of chairperson shall be reserved for the Scheduled Castes, the Scheduled Tribes and women as the State Legislature provides, with the Scheduled Caste and Scheduled Tribe share proportionate to population, not less than one-third of chairperson offices at each level reserved for women, and rotation between panchayats.

Clause (5). Reservation for the Scheduled Castes and the Scheduled Tribes under clauses (1) and (2), and of chairperson offices other than for women under clause (4), ceases on the expiration of the period specified in article 334. There is no such time limit for the reservation of women, a point the Supreme Court noted in K. Krishna Murthy v. Union of India, (2010) 7 SCC 202, observing that it implies those reservations operate in perpetuity.

Clause (6). Nothing in Part IX prevents a State Legislature from reserving seats or chairperson offices in favour of backward classes. This is enabling and not mandatory, and it is the clause litigated in chapters 940.

Article 243E: duration

Five years from the date appointed for the first meeting, and no longer, unless sooner dissolved.

An election must be completed before the expiry of the term, or within six months of a dissolution.

A panchayat constituted after a dissolution continues only for the remainder of the original term, which removes the advantage of dissolving early.

Kishansing Tomar v. Municipal Corporation of the City of Ahmedabad, (2006) 8 SCC 352, is the enforcement of this scheme in its municipal twin, article 243U. The Court held that the object and purpose of the article must be carried out so that the election is completed before the term expires, that administrative difficulties such as delimitation and the preparation of rolls are no justification for postponement, that the powers of a State Election Commission in its own domain are no less than those of the Election Commission of India, and that where a State does not cooperate the Commission may seek a mandamus from the High Court and thereafter from the Supreme Court.

Article 243F: disqualifications

Those disqualified for the State legislature are disqualified here, except that a person of twenty one years may not be disqualified for being under twenty five, and whatever further disqualifications State law imposes.

Article 243G: powers, authority and responsibilities

The State Legislature 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, including the preparation of plans for economic development and social justice and the implementation of schemes for the same, including matters in the Eleventh Schedule.

This is the weak article and an answer should say so. It is permissive. Article 243B compels a State to constitute panchayats; article 243G leaves it to the State how much they may actually do.

Articles 243H, 243I and 243J: money

243H: the State may authorise a panchayat to levy taxes, assign it State taxes, make grants in aid from the Consolidated Fund of the State, and constitute Funds.

243I: the Governor shall constitute a Finance Commission within one year of the commencement of the Amendment and every fifth year thereafter, to review the financial position of the panchayats and recommend on the distribution of taxes between the State and the panchayats, the taxes to be assigned to them and grants in aid; and every recommendation, with an explanatory memorandum on the action taken, shall be laid before the State Legislature.

243J: the State may provide for accounts and audit.

Note the asymmetry: constituting the Finance Commission is mandatory, and accepting its recommendations is not. The obligation is to receive advice and to answer for it in public.

Article 243K: elections

The superintendence, direction and control of electoral rolls and of the conduct of all panchayat elections is vested in a State Election Commission consisting of a State Election Commissioner appointed by the Governor, who shall not be removed except in like manner and on the like grounds as a judge of a High Court and whose conditions of service shall not be varied to his disadvantage after appointment.

That removal protection is the whole point. It gives the Commission the security a State Government cannot touch, which is why Kishansing Tomar could hold that the Commission may compel the State.

Articles 243L to 243O

243L: application to Union territories. 243M: the Part does not apply to certain areas, including the Scheduled Areas and tribal areas, though Parliament may extend it with exceptions, which it did by the Panchayats (Extension to the Scheduled Areas) Act, 1996. 243N: existing laws continue for one year unless earlier repealed. 243O: a bar on interference by courts in the delimitation of constituencies or the allotment of seats, and a bar on questioning an election except by an election petition as State law provides.

The Eleventh Schedule

Twenty nine subjects, under article 243G. Agriculture; land improvement and land reform; minor irrigation and watershed development; animal husbandry, dairying and poultry; fisheries; social and farm forestry; minor forest produce; small scale industries; khadi, village and cottage industries; rural housing; drinking water; fuel and fodder; roads and other communications; rural electrification; non-conventional energy; poverty alleviation; education including primary and secondary schools; technical and vocational training; adult and non-formal education; libraries; cultural activities; markets and fairs; health and sanitation; family welfare; women and child development; social welfare; welfare of the weaker sections and in particular the Scheduled Castes and Scheduled Tribes; the public distribution system; and the maintenance of community assets.

The Eleventh Schedule is a list of subjects that may be devolved, not a grant of power. A panchayat has a function only when State law confers it. An answer that says the Schedule gives panchayats twenty nine functions is wrong.

A worked example

A State conducts its panchayat elections in 2020 and constitutes the bodies. In 2023 it dissolves a zila parishad after a dispute with its chairperson, and proposes to hold the fresh election in 2026 along with the general panchayat elections, saying that delimitation is pending and that two elections in three years is wasteful.

Article 243E(3)(b): the election must be completed within six months of the dissolution.

Article 243E(4): the panchayat then constituted would in any case continue only for the remainder of the original term, so the State's convenience argument gains it nothing that the Constitution allows.

Kishansing Tomar: delimitation and the preparation of rolls do not justify postponement, and the State Election Commission may seek a mandamus if the State does not cooperate.

And article 243O does not save the State, because the bar operates against questioning an election that has been held, not against a direction that one be held.

The 73rd Amendment in one example: before 1993 the State's plan was lawful, and after 1993 it is not.

Distinctions that carry marks

What the 73rd Amendment is NOT

It is not a grant of powers to panchayats. It guarantees their existence, their election and their term. What they may do is left to State law under article 243G, which is the principal criticism of it.

It does not make panchayats a third tier of the federation. They are creatures of State law within a constitutional frame, they have no legislative list, and their revenue depends mainly on State transfers.

It did not apply everywhere at once. Article 243M excluded the Scheduled Areas and tribal areas, and Parliament extended the Part to the Scheduled Areas separately in 1996.

And it did not by itself deliver inclusion. It delivered seats. Chapters 930 and 940 are about the difference.

Quick revision

1. Act and dates: the Constitution (Seventy-third Amendment) Act, 1992, inserting Part IX, articles 243 to 243O and the Eleventh Schedule, in force 24 April 1993.
2. Structure: 243B, panchayats shall be constituted at village, intermediate and district levels, the intermediate tier optional below twenty lakhs; 243C, all seats by direct election, chairpersons of the upper tiers elected by and from the elected members.
3. Reservation, 243D: Scheduled Castes and Scheduled Tribes in proportion to population; one-third of those seats for their women; not less than one-third of all seats for women; chairperson offices reserved likewise; SC and ST reservation ends with article 334 but the women's reservation has no time limit; and 243D(6) merely enables reservation for backward classes.
4. Term, 243E: five years and no longer; election before expiry or within six months of dissolution; the successor serves only the remainder.
5. Institutions: 243I, a State Finance Commission every five years whose report is laid before the legislature; 243K, an independent State Election Commission whose Commissioner is removable only as a High Court judge is.
6. Functions: 243G is permissive, and the Eleventh Schedule's twenty nine subjects are a menu for devolution. This is the gap the Amendment did not close.
7. Cases: Kishansing Tomar, the term is mandatory and the State Election Commission may compel the State by mandamus; K. Krishna Murthy, the women's reservation has no article 334 sunset, and reservation in local bodies rests on a distinct constitutional basis.

Test yourself

1. Name the key features of the 73rd Amendment with the article for each. Article 243 defines the Gram Sabha as the body of persons registered in the electoral rolls of a village and a panchayat as an institution of self-government. Article 243A leaves the Gram Sabha's powers to State law. Article 243B makes panchayats compulsory at the village, intermediate and district levels, the intermediate tier being optional in a State under twenty lakhs. Article 243C requires all seats to be filled by direct election. Article 243D reserves seats for the Scheduled Castes and Scheduled Tribes in proportion to population, one-third of those seats for their women, and not less than one-third of all directly elected seats and of chairperson offices for women. Article 243E fixes a five year term with elections before expiry or within six months of dissolution. Article 243G enables the State to devolve powers, with the Eleventh Schedule's twenty nine subjects. Article 243I requires a State Finance Commission every five years and article 243K an independent State Election Commission. Articles 243M and 243O deal with excluded areas and the bar on judicial interference in electoral matters.

2. Which provisions are mandatory and which merely enabling, and why does the difference matter? Mandatory: the constitution of panchayats at three levels, direct election of all seats, reservation for the Scheduled Castes, Scheduled Tribes and women, the five year term with timely elections, the constitution of a Finance Commission every five years, and the establishment of a State Election Commission. Enabling: the conferment of powers and functions under article 243G, the taxation provisions in article 243H, and reservation for backward classes under article 243D(6). The difference matters because it identifies exactly what the Amendment achieved and what it left open. A State cannot avoid having elected, reserved, term limited panchayats, but it can leave them with almost nothing to do, which is why devolution has varied so widely between States since 1993.

3. Explain article 243E and the case that enforces it. Every panchayat continues for five years from the date appointed for its first meeting and no longer unless sooner dissolved; an election to constitute a panchayat must be completed before the expiry of that duration or, where it has been dissolved, before the expiration of six months from the dissolution; and a panchayat constituted upon a dissolution continues only for the remainder of the period the dissolved body would have served. In Kishansing Tomar v. Municipal Corporation of the City of Ahmedabad, decided on the identical municipal provision in article 243U, the Supreme Court held that the object and purpose of the article must be carried out so that elections are completed before the expiry of the term, that administrative difficulties such as delimitation and the preparation of electoral rolls do not justify postponement, that a State Election Commission's powers in its own domain are no less than those of the Election Commission of India, and that where a State does not render assistance the Commission may seek a writ of mandamus from the High Court and thereafter from the Supreme Court.

4. What does the Eleventh Schedule do, and what does it not do? It lists twenty nine subjects, from agriculture, minor irrigation and drinking water to primary education, health and sanitation, women and child development, the public distribution system and the maintenance of community assets. It is referred to in article 243G, under which the State Legislature may by law endow panchayats with powers to enable them to function as institutions of self-government, including for the preparation and implementation of plans for economic development and social justice in relation to the matters listed. What it does not do is confer any function on any panchayat. A panchayat acquires a function only when a State law devolves it, so the Schedule is a menu for devolution rather than a grant of power, and an answer that treats it as conferring twenty nine functions is wrong.

5. Why is the State Election Commission the centrepiece of the reform? Because the principal failure between 1950 and 1992 was that elections were simply not held, and the body that had to hold them was answerable to the Government whose defeat they might produce. Article 243K vests the superintendence, direction and control of the rolls and of the conduct of all panchayat elections in a State Election Commission, and protects the State Election Commissioner by providing that he may not be removed except in the like manner and on the like grounds as a judge of a High Court and that his conditions of service may not be varied to his disadvantage after appointment. That security is what allows the Commission to insist, and in Kishansing Tomar the Court held that it may compel a reluctant State by mandamus, so the guarantee of a five year term has an institution behind it.