The Third Tier: Panchayats and Municipalities

And a bar on the courts in electoral matters. Article 243-O and article 243ZG bar the courts from questioning the validity of a delimitation or allotment of seats, and provide that an election may be called in question only by an election petition, which mirrors article 329.

What the two Amendments left to the States

The powers themselves. Article 243G provides that the Legislature of a State 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, and such law may contain provisions for the devolution of powers and responsibilities with respect to the preparation of plans for economic development and social justice and the implementation of schemes, including those in relation to the matters listed in the Eleventh Schedule. Article 243W does the same for municipalities and the Twelfth Schedule.

The word is "may". The Eleventh Schedule lists twenty-nine matters and the Twelfth eighteen, and neither Schedule transfers anything by itself. A State that devolves none of them has not breached the Constitution.

The money. Articles 243H and 243X permit the State Legislature to authorise a panchayat or municipality to levy taxes and to assign taxes to it, and to make grants in aid. Again, permissive.

That asymmetry between the compulsory and the permissive is the whole of the third-tier question, and it is the reason the answer to "is India a three-tier federation" is a qualified one.

Start with article 243A, because it is the shortest article in Part IX and the most quoted in the argument that the third tier was never really given anything. In full: "A GRAM SABHA MAY EXERCISE SUCH POWERS AND PERFORM SUCH FUNCTIONS AT THE VILLAGE LEVEL AS THE LEGISLATURE OF A STATE MAY, BY LAW, PROVIDE." Article 243(b) defines the Gram Sabha as the body consisting of the persons REGISTERED IN THE ELECTORAL ROLLS relating to a village comprised within the area of a panchayat at the village level, so it is the whole adult village in assembly, the one directly democratic institution the Constitution names. And it is given nothing. Everything it may do is what a State law says it may do. Compare section 4 of the Panchayats (Extension to the Scheduled Areas) Act 1996, worked in Module II, which does give the Gram Sabha real powers in a Scheduled Area, and the contrast makes the point: where Parliament wanted the village assembly to have competence it said so, and article 243A does not.

The permissive articles, gathered, because a question on devolution is answered out of them. COMPOSITION: article 243C leaves the composition of panchayats to the State Legislature, subject only to a proviso that the ratio between the population of a panchayat area and the number of its elected seats shall so far as practicable be THE SAME THROUGHOUT THE STATE; article 243R does the reverse for municipalities, requiring that all seats be filled by DIRECT ELECTION from wards and then permitting the State to add representation for persons with special knowledge of municipal administration and for sitting members of Parliament and of the State Legislature. DISQUALIFICATIONS: articles 243F and 243V disqualify a person who is disqualified for election to the State Legislature or by a State law, with the same proviso in both, that NOBODY IS DISQUALIFIED FOR BEING UNDER TWENTY-FIVE IF HE HAS ATTAINED TWENTY-ONE, and leave the deciding authority to State law. ACCOUNTS: articles 243J and 243Z leave the maintenance and AUDIT of accounts entirely to State law, so the third tier has no constitutionally guaranteed auditor at all. WARDS COMMITTEES: article 243S is the one structure below the municipality that the Constitution itself requires, and only in a municipality with a POPULATION OF THREE LAKHS OR MORE.

Planning, which is the strongest thing in Part IXA and the least used. Article 243ZD requires a DISTRICT PLANNING COMMITTEE in every district to CONSOLIDATE the plans prepared by the panchayats and the municipalities and to prepare a draft development plan for the district as a whole, with NOT LESS THAN FOUR-FIFTHS of its members elected by and from the elected members of the district panchayat and the municipalities. Article 243ZE requires a METROPOLITAN PLANNING COMMITTEE in every metropolitan area, with NOT LESS THAN TWO-THIRDS so elected. Both are mandatory, both would give the third tier a say over the plan for the whole district, and both are among the least implemented provisions in the Constitution.

And the machinery articles that make Parts IX and IXA work. Articles 243L and 243ZB apply both Parts to the UNION TERRITORIES, reading the Administrator under article 239 for the Governor and the Legislative Assembly, where one exists, for the State Legislature, with a power in the President to modify the application by public notification. Articles 243N and 243ZF are the transitional provisions: an existing State law inconsistent with the new Part continued in force only until amended or repealed or UNTIL ONE YEAR from the commencement of the Amendment, whichever was earlier, while existing panchayats and municipalities were allowed to run out their terms unless the Legislative Assembly resolved otherwise. That one year is what forced every State to legislate afresh in 1993 and 1994, and it is why the two Amendments changed the statute book so quickly and the practice so slowly.

Where the Sixth Schedule areas stand

Article 243M excludes Part IX from the Scheduled Areas and tribal areas, from the States of Nagaland, Meghalaya and Mizoram, from the hill areas of Manipur for which a District Council exists, and from the district level in a district having a District Council under the Sixth Schedule.

And article 243ZC excludes Part IXA from the Scheduled Areas and tribal areas.

The Act of 1996 then extended Part IX to the Scheduled Areas with modifications, which is worked in [The Fifth Schedule and the Scheduled Areas], but the Sixth Schedule areas remain outside because they already have District Councils with wider powers.

A worked example

A State does not constitute a State Finance Commission for eleven years, devolves none of the twenty-nine Eleventh Schedule matters, and postpones panchayat elections by a year on the ground of a delimitation exercise. Which of these is unconstitutional?

The failure to constitute a Finance Commission is a breach. Article 243-I requires the Governor to constitute one within one year of the commencement of the Seventy-third Amendment and thereafter at the expiration of every fifth year. The word is "shall".

The postponement of elections is a breach. Article 243E(3) requires an election to constitute a panchayat to be completed before the expiry of its five-year duration, and the Supreme Court has repeatedly directed States to hold them. A delimitation exercise is not an excuse the Constitution recognises.

The failure to devolve is not a breach. Article 243G says the Legislature "may" endow panchayats with such powers as may be necessary, and the Eleventh Schedule is a list of matters that may be devolved rather than a distribution of powers.

And that is the answer to the three-tier question in one example. The existence, composition and periodic election of the third tier are constitutionally protected. Its powers are not.

Distinctions

What it does NOT mean

It does not mean India is a three-tier federation in the full sense. The third tier has protected existence and unprotected powers, which is a different thing from the Union and the States, whose fields are distributed by the Constitution and justiciable.

It does not mean the Schedules devolve anything. The Eleventh and Twelfth Schedules are lists of matters that a State Legislature may devolve.

It does not mean local bodies cannot be superseded. They may be dissolved under State law, but article 243E(3) requires an election within six months of dissolution.

And it does not mean the Sixth Schedule areas have no local government. They have District Councils with wider powers than a panchayat, which is why article 243M excludes Part IX from them.

Quick revision

Seventy-third Amendment 1992: Part IX, articles 243 to 243-O, and the Eleventh Schedule, twenty-nine matters. Seventy-fourth Amendment 1992: Part IXA, articles 243P to 243ZG, and the Twelfth Schedule, eighteen matters. Compulsory: three levels of panchayat under article 243B, the intermediate level optional below twenty lakhs; three kinds of municipality under article 243Q; a five-year term with elections completed before expiry or within six months of dissolution, articles 243E and 243U; reservation for the Scheduled Castes and Scheduled Tribes in proportion to population and not less than one-third of seats and of chairperson offices for women, articles 243D and 243T; a State Election Commission under articles 243K and 243ZA whose Commissioner is removable only as a High Court judge; a State Finance Commission every fifth year under articles 243-I and 243Y; and a bar on courts in electoral matters under articles 243-O and 243ZG. Permissive: the powers themselves, articles 243G and 243W, and the finances, articles 243H and 243X. Excluded areas: articles 243M and 243ZC, with the Act of 1996 extending Part IX to Scheduled Areas.

Test yourself

1. What did the 73rd and 74th Amendments make compulsory? The existence of elected panchayats and municipalities, a five-year term with elections completed before expiry or within six months of dissolution, reservation for the Scheduled Castes, Scheduled Tribes and women, a State Election Commission, and a State Finance Commission every fifth year.

2. What did they leave to the States, and in what words? The powers themselves. Article 243G provides that the Legislature of a State "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", and article 243W is in the same terms for municipalities.

3. Do the Eleventh and Twelfth Schedules distribute powers? No. They list twenty-nine and eighteen matters respectively which a State Legislature may devolve. Neither Schedule transfers anything by itself.

4. What protection does the third tier have against being left in abeyance? Articles 243E and 243U require an election to constitute the body to be completed before the expiry of its five-year duration, or within six months of its dissolution, and the State Election Commission under articles 243K and 243ZA conducts it.

5. Which areas are excluded from Part IX and Part IXA, and why? The Scheduled Areas and tribal areas, and Nagaland, Meghalaya, Mizoram and the hill areas of Manipur with District Councils, by articles 243M and 243ZC. The Sixth Schedule areas already have District Councils with wider powers, and Part IX was extended to the Fifth Schedule areas by the Act of 1996.

6. Is India a three-tier federation? Give the qualified answer. It has three tiers of elected government but only two tiers of constitutionally protected power. The third tier's existence, composition, term and elections are protected; what it may do is devolved by State law under articles 243G and 243W and may be withheld.