The Third Tier

Articles 243R, 243S and 243V are the municipal counterparts of articles 243C, the absent ward-level body, and 243F, and the pairing is worth noticing: Part IXA repeats Part IX almost provision for provision, and adds the wards committee, which has no panchayat equivalent.

What is guaranteed and what is not

Guaranteed. Existence, direct election, composition, reservation, a five-year term with elections before its expiry, a State Election Commission, and a State Finance Commission.

Not guaranteed. Powers. Articles 243G and 243W both say that the legislature of a State may by law endow, so the substantive competence of the third tier is entirely a matter for the State, and the Eleventh and Twelfth Schedules are lists of subjects that may be devolved rather than subjects that are.

That is the central criticism of the Indian arrangement, and it is the point to make in an answer: the amendments constitutionalised the form of local government and left its substance where it had always been.

The other systems

Switzerland, article 50. The autonomy of the communes is guaranteed in accordance with cantonal law. The Confederation shall take account of the possible consequences of its activities for the communes, and shall pay particular regard to the special situation of the cities, urban areas and mountain regions.

Germany, article 28(2). Municipalities must be guaranteed the right to regulate all local affairs on their own responsibility, within the limits prescribed by the laws; associations of municipalities also have the right of self-government; and the guarantee of self-government extends to the bases of financial autonomy, including a source of tax revenue based on economic ability and the right to establish the rates at which those sources shall be taxed.

That last clause is what the Indian provisions lack. Germany guarantees a municipality a tax base and the right to set the rate; India permits a State to authorise a panchayat to levy taxes under article 243H.

Ireland, Article 28A. Recognition and periodic elections, with powers conferred by law. Treated in [Ireland: a Unitary State With Local Government Guaranteed].

United States and Canada. Local government is a creature of the State or the province. In Canada section 92(8) of the Constitution Act 1867 gives the provinces exclusive power over municipal institutions in the province, so a municipality has no constitutional existence at all.

A worked example

A State government dissolves a municipal corporation and postpones elections for three years.

India. Article 243U requires elections to be completed before the expiry of the five-year term and, on dissolution, within six months. Kishansing Tomar v. Municipal Corporation of the City of Ahmedabad holds those provisions mandatory and the State Election Commission's duty to hold the elections effective. Article 243ZG bars the courts from questioning an electoral law or an election except by petition, which does not bar mandamus to hold the election.

Germany. Article 28(2) guarantees the right of self-government, and article 28(3) obliges the Federation to guarantee that the constitutional order of the Lander conforms to the basic rights and to the requirements of article 28(1) and (2).

Canada. Nothing. Municipal institutions are within provincial competence under section 92(8) and a province may reorganise or abolish them.

The comparison shows why constitutionalising the third tier matters.

The cases

Facts. Kishansing Tomar v. Municipal Corporation of the City of Ahmedabad concerned the failure to hold elections to a municipal corporation within the period prescribed by article 243U, the State pleading administrative difficulties including delimitation.

Held, by the Supreme Court. The provisions of articles 243U and 243ZA are mandatory; elections must be completed before the expiry of the five-year term; the State Election Commission is under a constitutional duty to conduct them and the State authorities must provide the necessary assistance; administrative difficulties are not a ground for postponement save in the most exceptional circumstances.

Why it matters here. It is what makes the Indian guarantee effective, and it is the answer to a question about whether Part IX is more than a form.

Facts. Vikas Kishanrao Gawali v. State of Maharashtra concerned reservation of seats for other backward classes in local bodies in Maharashtra and whether such reservation could exceed, with the reservation for Scheduled Castes and Scheduled Tribes, fifty per cent of the total seats.

Held, by the Supreme Court. Reservation for backward classes in local bodies is not constitutionally mandated in the way that reservation for Scheduled Castes and Scheduled Tribes is under articles 243D and 243T; before providing it a State must set up a dedicated commission to inquire into the nature and implications of backwardness in local bodies, specify the proportion required, and ensure that the aggregate reservation does not exceed fifty per cent of the total seats.

Why it matters here. It is the leading modern authority on the third tier's composition and shows that the constitutional guarantees in articles 243D and 243T are enforceable and bounded.

Distinctions

What beginners get wrong

"The Eleventh Schedule gives panchayats twenty nine subjects." It lists twenty nine matters in relation to which a State legislature may devolve powers under article 243G. It confers nothing by itself.

"Article 243-O bars all judicial review of panchayat matters." It bars a challenge to the validity of a law relating to delimitation or allotment of seats, and provides that an election may be questioned only by an election petition. It does not bar a mandamus requiring an election to be held.

"Reservation for backward classes in local bodies is mandatory." Articles 243D(6) and 243T(6) permit a State to make provision; Vikas Kishanrao Gawali sets out the conditions and the fifty per cent aggregate ceiling.

Limits and criticism

Powers without funds. Article 243-I requires a State Finance Commission and does not require the State to act on its recommendations, and the third tier's revenue depends on what the State chooses to devolve.

Powers without competence. Articles 243G and 243W leave the substantive powers to State law, so the constitutional status of the third tier is as an institution rather than as a level of government.

Germany's is the stronger model, because article 28(2) guarantees not only self-government but a tax base and the right to set rates.

Quick revision

1. Parts IX and IXA, inserted by the Seventy Third and Seventy Fourth Amendments 1992.
2. Guaranteed: existence (243B, 243Q), composition and direct election (243C), reservation (243D, 243T), five-year term with elections before expiry (243E, 243U), State Election Commission (243K, 243ZA), State Finance Commission (243-I).
3. Not guaranteed: powers. Articles 243G and 243W permit a State legislature to endow, with the Eleventh and Twelfth Schedules.
4. Article 243-O and article 243ZG bar interference by courts in electoral matters, subject to election petitions.
5. Germany, article 28(2): all local affairs, plus a tax base and rate-setting.
6. Switzerland, article 50: communal autonomy per cantonal law, with the Confederation to have regard to consequences for communes.
7. Canada and the United States: local government is a creature of the unit; section 92(8) of the 1867 Act.

Test yourself

1. What do Parts IX and IXA guarantee and what do they leave to the States? They guarantee the constitution of panchayats and municipalities, direct election, composition, reservation for Scheduled Castes, Scheduled Tribes and women, a five-year term with elections completed before its expiry, a State Election Commission and a State Finance Commission. They leave the powers to State law: articles 243G and 243W provide that the legislature of a State may by law endow these bodies with such powers and authority as may be necessary to enable them to function as institutions of self-government.

2. Why is the German provision stronger? Because article 28(2) guarantees municipalities the right to regulate all local affairs on their own responsibility within the limits prescribed by the laws, and expressly extends the guarantee of self-government to the bases of financial autonomy, including a source of tax revenue based on economic ability and the right to establish the rates at which it is taxed. India guarantees the institution and leaves both the powers and the revenue to the State.

3. What did Kishansing Tomar decide? That articles 243U and 243ZA are mandatory: elections to municipalities must be completed before the expiry of the five-year term, the State Election Commission is under a constitutional duty to conduct them, State authorities must provide the necessary assistance, and administrative difficulties such as delimitation are not a ground for postponement except in the most exceptional circumstances.

4. What conditions apply to reservation for backward classes in Indian local bodies? Following Vikas Kishanrao Gawali v. State of Maharashtra, such reservation is permitted rather than mandated, and before providing it a State must establish a dedicated commission to conduct a contemporaneous rigorous empirical inquiry into the nature and implications of backwardness in local bodies, specify the proportion of reservation required, and ensure that the total reservation, including that for Scheduled Castes and Scheduled Tribes, does not exceed fifty per cent of the total seats.