Table of Contents
Significance of 73rd and 74th Constitutional Amendment Acts
Salient Features of Local Self-Governments
Local Governments and Human Rights
The system of local self-government has taken a leap forward in guaranteeing a life of dignity and respect to the citizen at the local village level in India. In a formal sense, all the states in India have conformed to the constitutional requirement of ensuring the participation in the local self-governments to the hitherto excluded groups through the system of reservation. This institutionalisation of local self-governments since 1990s that has added greater momentum to the decentralisation process has also had some deeper implications for the human rights situation in India. Even as the democratic process has been extended, changes in traditional society have involved conflict. Therefore on the other side after India had taken bold steps to strengthen decentralisation and local self-governance system the human rights violations at all levels have not decreased. It is ironical that elections in India become an occasion for serious human rights violations. Although it happens even during elections to the states and parliament the violence is more in the local elections as the polling percentage is higher at this level. Further, violence has increased at the village levels as political power is the most important instrument that exists at the local level and everyone wants to wield it. This paper argues however that as isolation of villages is forever broken by inroads of media, technology and spatial mobility; the existing local government system will only help weave the village into the broader social fabric. This paper consists of three parts part one Introduction that traces the origin and development of local self-governments in India; and the significance of 73rd and 74th constitutional amendment acts. Part two consists of the features of local self-governments in India and the issues involved in it such as caste, economic factors and gender disparity. Part three analysis the interface of human rights and local self-governments and it is followed by a conclusion.
Key Words: Local self-governments, Human Rights, Decentralisation, Panchayatraj.
Local self-government is an age-old cultural convention of the Indian people. In fact India had rarely experienced a truly centralised state; it was essentially ruled by its village-governments. Two distinctive features stood out about the nature of governance in ancient India. First, ‘state’ in India was marginal to society, and hence the changes in the ‘state’, from one ruler to the other, did not affect the society in a considerable way. Second, the society was self-governed through indigenous institutions and practices, most conspicuously, by a kind of decentralised government known as panchayats.1 Thus, India had developed a number of organisations of community based administration of local affairs which are known as panchayats. However in most parts of India, the panchayat system was based on the age-old caste system, social status and family.
But the credit for introduction of modern form of panchyats in India goes to the British Raj.2 During the British rule in India, whenever the Indian nationalists demanded autonomy and democracy at the national level, the colonial government sought to meet this demand by offering concessions at the lowest level, by giving powers of self-government to panchayats in rural areas and municipalities in urban areas. Gradually this concept of panchayat, as unit of self-governance, also became an integral part of the ideology of India’s national movement, and the sine qua non of Mahatma Gandhi’s concept of India’s liberation and Indian nationhood. Gandhi idealised the case of ancient Indian society where political power was inferior to society, in which people lived and enjoyed an organic social existence in small villages independently. He thought that if India were to evolve along humanistic and non-violent lines, it would have to decentralise. He advocated for the maximum possible decentralisation of the political and economic power and resources of the state.3
Though the local self-governments became part of the independent Indian constitution they were made only as part of the state list. They could gain constitutional status only after a century of their inception in the modern form in India.4 With the coming into being of the new generation of panchayats from the early 1990s it is widely believed that tremendous possibilities have been opened up in the areas of decentralisation, development, social justice, people's participation and grass roots democracy. Thus the question how this new phase of decentralisation does affect the human rights situation in India is still to be assessed.
Human rights cover a broad range of ideas and concepts. According to the Universal Declaration of Human Rights, human rights constitute both civil and political rights (Articles 1 to 21) as well as economic, social and cultural rights (Articles 22 to 28). In the Indian context, situation of human rights has to be assessed at three levels: first, violation of human rights by the state itself; second, socio-economic factors which work against the rights of the people; and third, denial of right to livelihood and decent living conditions for a majority of the people. In more than one sense the new phase of local self-governments in India has fascinated in one way or the other human rights questions at all the above three levels. Therefore an attempt is made in this paper to analyse all these aspects with the available data. Views and opinions expressed by several human rights experts and activists on the role of local self-governments in protection of human rights are also taken into consideration.
Significance of 73rd and 74th Constitutional Amendment Acts
Although the Indian independence movement, under the leadership of Mahatma Gandhi, had villages and their self-governing system at the centre, when the Constitution of independent India was written they did not get a place in its main body, except a reference in the directive principles of state policy5. Therefore the states did not take both the urban and rural local bodies seriously. Over the years it was felt that without taking the local communities seriously and devolving powers to them, neither the development of the people nor their governance was possible. So the parliament passed on December 22 and 23, 1992 two amendments to the Constitution- 73rd Constitution Amendment for rural local bodies (panchayats) and 74th Constitution Amendment for urban local bodies (municipalities) making them 'institutions of self-government'.
Thus, the 73rd and 74th Constitutional Amendment Acts provide today the constitutional basis for rural and urban decentralisation respectively in India. These two famous amendments inserted Part lX and lXA respectively in the Constitution. The former contains Articles 243 to 243-O, and Part lX A contains Articles 243P to 243 ZG. Both have more or less analogous provisions. The common features of both are to be noted: direct election by the people; reservation of seats for women, Scheduled Castes and Scheduled Tribes; an Election Commission to conduct the elections; a Finance Commission to ensure financial viability of the institutions. The provisions in both the amendments are in the nature of ‘basic provisions’ which are to be supplemented by conformity laws to be passed by the Legislatures of the states. It also means that the Union government cannot enact any laws to create rights and liabilities relating to the subjects in the above provisions, since local government is exclusively a state competence.
Salient Features of Local Self-Governments
In order to give the local governments the necessary status and dignity some of the essential features were enshrined in the Constitution. They are mainly concerned about regular elections, representation of weaker and hitherto excluded sections like scheduled castes, scheduled tribes, women, devolution of powers and financial resources aimed at imparting strength to them.
The main features are:
1. Provision for a gram sabha (village assembly) for each village or a group of villages comprising all the adult members registered as voters;
2. Reservation of at least one-third of the total number of seats and posts of chairpersons for women;
3. Reservation of seats and offices of the chairpersons for scheduled castes (SCs) and scheduled tribes (STs) in proportion to their population (in this one-third should be women);
4. Liberty to the state legislatures to provide reservation of seats and offices of chairpersons in favour of backward c lasses;
5. Specific responsibilities in respect of the subjects listed in the 11th and 12th schedules6 ;
6. Constitution of state finance commissions and elections commissions to ensure financial devolution and elections respectively.
7. Duration of panchayats is five years, but it can be dissolved earlier in accordance with a state law. However, if it is dissolved prematurely, elections to form a panchayat must be held within six months, which shall continue for the remainder of the term.
After the new generation of panchayats have started functioning they were expected to become a testing ground for new policies to promote political empowerment, citizen involvement and public services. This has gathered the attention of human rights activists on the affairs of local governments. The important factor which has contributed to the human rights situation vis-a-vis the panchayat system is the nature of Indian society which of course determines the nature of the state. The Indian society is known for its inequality, social hierarchy and gander preference. The social hierarchy is the result of the caste system, which is unique to India. Therefore caste is an important factor, which deserves attention in this context. At another level to understand the victims of the social system we need to comprehend the nature (and character) of the Indian state. In a broader sense the victims are the Scheduled Castes, Scheduled Tribes, women, and the poor. Now the question arises how the democratically elected local bodies tackle the above mentioned human rights issues? As a logical corollary we need to look into another question whether local bodies as decentralised institutions do contribute to respect and protect the human rights or increase the violation of human rights? To answer these questions this paper investigates the deep rooted social problems, i.e., caste, economic factors and gender disparity. The paper concludes with an analysis of the present human rights situation in the context of decentralisation.
Individual life in India is widely affected by the caste system which is a social phenomenon that is extraordinarily difficult to define. It is "rooted in the religious order and may be thought of as a hierarchy of hereditary, endogamous, occupational groups with positions fixed and mobility barred by ritual distance between each caste".7 Human rights activists and scholars observed that this caste system has created impregnable walls between groups of human beings where birth solely determines the social position in society.8 In their view, the caste system is one of the worst forms of societal violations of human rights in India even today. In fact the caste system denies basic education to the lower castes and omen. This ancient tradition has been passed on down the ages and it has a significant impact on the life of the rural people even today. People belonging to the lower castes are forced to live separately, away from the upper castes, mostly in the outskirts of villages.
Obviously the upper castes have been controlling the affairs of the village and the community. The rural economy was also dictated by these caste groups. They cannot tolerate the changes that are being brought about by the decentralised democratic institutions. Therefore, from the beginning of the implementation of the panchayat system there has been a sharp increase in violent manifestations of casteism in local communities. Indeed the panchayatiraj institutions have been seen by the upper castes as the tool for the lower castes to assert their right as individuals living in a democratic polity. That is why from the very first election under the new system, the rights of the lower castes to participate in the democratic process and hold positions were questioned by the upper castes. In some cases the dominant castes have murdered the elected representatives who belonged to a lower caste merely because they dared to fight the panchayat elections.9 In other cases even after duly getting elected, the lower caste representatives are not getting the power and status they deserve. They are made to sit outside the panchayat offices, on the floor while the traditional village headmen occupy the chairs.
Contrary to the ideals embodied in the Indian constitution such as solidarity, social justice and equity pervasive poverty is a reality even today. Despite the presence of a number of schemes for the upliftment of the poor, there has not been much change in poverty levels, over the years. In fact poverty is the denial and absence of human dignity.10 In the recent assertion of the Indian president 1/3 of the Indian population is still reeling under poverty.11 Only the local government system can bridge the widening gap between the constitutional provisions and the economic realities. Because the subjects listed under the eleventh and twelfth schedules pertaining to the panchayats and municipalities respectively, majority of the subjects are related to economic development. For instance, agriculture, land improvement, minor irrigation and water management, dairy, fisheries, social forestry, small-scale industries, rural housing, fuel and fodder, roads, ferries and waterways, electrification, poverty alleviation programmes and so on.
However, this is not happening the way it should have. It has become well known that the programmes and development measures handled by the local governments do not reach the poor as the rich and the powerful corner most of it. Corruption in decentralised institutions has been attracting attention of civil society organisations and the state. Although there is a check and balance system and social audit, the rich corner the benefits and the poor remain where they are. A number of such instances have come to light. Although corruption is prevalent at the higher levels, when it happens at the grass roots level its impact is felt more on the poor and their right to livelihood. Thus the poor remain where they are and in some cases their condition deteriorates becoming more vulnerable to human rights violations.
Though women are the distinct group that belongs to traditionally marginalised groups in India, Indian Constitution did not mention or specifically provide reservation for women's' representation in the parliament or state assemblies. It took nearly 40 years for women to find political representation in the formal political institutions. This was made possible through the 73rd and 74th Constitution Amendment Acts, which had the landmark provision of reserving not less than one-third of the total number of seats in the local bodies for women . These amendments have negated several myths, like the belief that they are passive and disinterested in political institutions; only the well-to-do, upper strata women will come through reservation; only the kin of powerful politicians will enter panchayats through political connectivity to keep the seats for them; and women are only proxy - 'name-sake' - members and they do not participate in the panchayats.12
However there are serious backlashes too from the male dominated patriarchal Indian society. Elected women have become the victims of exploitation, violence and harassment. There are stories from all over the country of violations of their rights despite constitutional provisions. Now we are witnessing a new class of politicians who can be termed as 'sarpanch patis' where the husband of the woman sarpanch managed the affairs of the panchayat, while the woman acted only as a rubber stamp. A study in the state of Karnataka has shown that many women elected to the local bodies/panchayats are surrogates for husbands and fathers who could not contest because of reservation.13
Local Governments and Human Rights
The decentralisation process that has gathered momentum in India since 1990s has deeper implications for human rights situation in India. The rights of excluded people had been violated over the years owing to lack of democratic system of governance at the community level where they could participate effectively. Now the democratic process has brought people closer in both urban and rural areas and they could now take part in the local election every five years and assert their right to vote. In fact the elections in India are a big education process. The system of local self-government as manifested in the panchayatiraj institutions has taken a leap forward in guaranteeing a life of dignity and respect to the citizen at the local village level. Ideals of social justice based on gender equality and liberty are best pursued at the local level.
In a formal sense, all the states have conformed to the constitutional requirement of ensuring the participation in the PRIs to the hitherto excluded groups (SC, ST and women) through the system of reservation. The problems of the poor have been sought to be addressed by transferring some of the poverty alleviation and development programmes to the panchayats due to the constitutional obligation. By and large women have found representation in the panchayats through the one-third reservations of seats. The SCs and STs have been represented to the extent of their share in the population.
Evidently, formal representation need not necessarily be an indication of participation. Since the new phase of decentralisation, there is evidence that some of the worst forms of exclusion that plagued the society in India are no longer practised in a number of states. Elected members sit together and discuss issues in formal and informal meetings. A symbolic participation of all people in the village, including the SCs and STs and women, does take place at least as a constitutional requirement. This is due to the slow but sure changes in the larger political landscape in India.
Social transformation through a democratic process is not peaceful in India. Therefore on the other side after India has taken bold steps to strengthen decentralisation and local governance system the human rights violations at all levels have gone up. The main reason is that all those who were enjoying the powers and privileges so far are trying to subvert the constitutional mandate overtly or covertly. This has to be seen from another view point. In a traditional society any change that has structural implications involves conflict. The conflict of interests is so powerful that it leads to violence, bloodshed and loss of life. Ever since India got independence this has been happening but it did not take on a prolonged bloody character because of the developing democratic system in the country.
Since 1993, in the new generation of panchayats, several rounds of elections have been held. It is ironical that elections in India become an occasion for serious human rights violations. During the election period, the rich try to dominate the poor by buying their votes or keeping the poor as 'vote banks'. In many cases the upper castes stop the lower castes from exercising their democratic rights if they come to know that the poor and disadvantaged will exercise their votes independently. In the process violent incidents take place many losing their lives. Although it happens even during elections to the states and parliament the violence is more in the local elections as the polling percentage is higher at this level.
Violence has increased at the village levels as political power is the most important instrument that exists at the local level and everyone wants to wield it. Therefore, tensions that have existed earlier mount when those who aspire for power come up against those who resist giving it up. Muscle, money and caste power are worse at the local level during elections. An analysis of this violence shows that whenever political consciousness is low and development is relatively backward the people in those areas are more prone to violence.
It may be stated here that there are no consistent and systematic attempts with a political will to combat casteism. The implementation of the legal provisions has been minimal and utterly insufficient and often the violators go unpunished. The members of the Indian parliament belonging to the scheduled castes publicly acknowledged the government of India's unwillingness to enforce legal sanctions against casteism and the continued abuse of lower caste people. They said, "It is a shameful tragedy and irony of fate for the hapless Indians belonging to the scheduled castes and scheduled tribes that inhuman and barbaric treatment is meted out to them by their own countrymen. Some times their women are paraded naked in streets and their children butchered like animals, their hearths and homes are burnt at whim destroying their meagre source of livelihood. The state and its machinery play at best, a helpless mute witness or indifferent analyst or still worse active collaborator."14
State scheduled caste/scheduled tribes commissions have been set up following the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act of 1989, but the victims are afraid to report caste atrocities for fear of retribution, despite the protection and monetary compensation that the commissions promise.
Panchayats have, all the same, opened possibilities for bringing to surface most of the things previously swept under the carpet. No more it is hidden or secret. Although gram sabha and gram panchayat are hotbeds of manipulative politics, they provide a democratic forum to grapple with social and political issues in the open. Such a forum is now available, for the first time, with the constitutional backing.
Here the role of political parties is crucial. The earlier concept of consensus (in effect, consent to whatever the powerful was saying or doing) is giving way to people aligning on party lines to call into question every action that is less than transparent. If one political party becomes protector of the oppressed for whatever reason, another party becomes the guardian of the oppressor. In the local situation, state politics or national level ideology is of little consequence. As of now, open participation of political parties in the panchayat elections is the best way to challenge the age-old autocracy of caste or family.
The mass media, communication technology and spatial mobility have broken the isolation of villages. Incidents even in remote village panchayats are thrown up promptly at the state and national level. The new panchayat system, with all its current weaknesses, has helped to weave the village into the broader social fabric.
The silver lining on the otherwise dark horizon is positive intervention of judiciary upholding the human rights of the downtrodden at the local level. Although, Indian judiciary is notoriously slow, the public interest litigation has been a successful tool to give meaning and content to the local bodies legislations.
Several elections more to the local bodies are a necessary condition to create a culture of genuine democracy and political participation. There is no doubt that the local governments based on vibrant democracy at the local government level with the support of civil society organisation will protect the human rights of the people at all levels. But in a traditional society like India this will take time through the democratic process.
Bhattacharyya, Harihar. "LOCAL GOVERNMENT, EFFECTIVENESS AND HUMAN RIGHTS: INDIA."Researchers’ Workshop on Local Government: Delivering Public Services. Geneva: THE INTERNATIONAL COUNCIL ON HUMAN RIGHTS POLICY, 21-22 February 2004. 1-15.
Duncanted G Mitchell, 1979,A New Dictionary of Sociology, Routledge and Kegan Paul, London and Henley
Human Rights and Poverty Eradication - A Talisman for the Commonwealth; 2001, Commonwealth Human Rights Initiative, New Delhi.
George Mathew, 'The Meaning of Melavalavu', The Hindu, September 30,1997.
Nirmala Buch, 'Panchayats and Women' in Status of Panchayats in the States and Union Territories of India 2000; Institute of Social Sciences, New Delhi, 2000, p 34.
R M Pal, 'The Caste System and Human Rights Violations', PUCL Bulletin, XII, 10:2- 4, 1992.
South Asia Human Rights Documentation Centre (SAHRDC), Racial Discrimination: The Record of India, September 2001, pp 36-37.
Vinod Vyasulu and Poornima, Women in Panchayati Raj: Grass Roots Democracy in India? Experience from Malgudi, March 1999.
1 Bhattacharyya, Harihar. "LOCAL GOVERNMENT, EFFECTIVENESS AND HUMAN RIGHTS: INDIA."Researchers’ Workshop on Local Government: Delivering Public Services. Geneva: THE INTERNATIONAL COUNCIL ON HUMAN RIGHTS POLICY, 21-22 February 2004. 1-15.
2 During Lord Ripon's viceroy-ship in 1882, the government resolution providing for local boards with elected representatives was the first initiative to introduce modern form of panchayat system in India.
3 Bhattacharyya, Harihar, Op cit.
4 In 1992 the parliament of India passed two Constitution Amendments (73rd and 74th) and in 1993 they were incorporated as Part IX for the panchayats and Part IX A for municipalities.
5 Article 40 of the Indian Constitution says, "The state should take steps to organise village panchayats and endow them with such power and authority as may be necessary to enable them to function as units of self-government”
6 There are 29 subjects in the eleventh schedule applicable for the panchayats and 18 subjects in the twelfth schedule for the municipalities
7 Duncanted G Mitchell, 1979,A New Dictionary of Sociology, Routledge and Kegan Paul, London and Henley
8 R M Pal, 'The Caste System and Human Rights Violations', PUCL Bulletin, XII, 10:2- 4, 1992.
9 Melavalavu case is the classic example of this kind of violence. For details George Mathew, 'The Meaning of Melavalavu', The Hindu, September 30,1997.
10 Human Rights and Poverty Eradication - A Talisman for the Commonwealth; 2001, Commonwealth Human Rights Initiative, New Delhi, p 6.
11 On the eve of 68th Independence day celebrations while addressing the nation President Pranab Mukharjee asserted the fact that 1/3 of the people are below poverty line even today and urged the nation to take necessary steps to uplift them as they cannot wait for another generation.
12 Nirmala Buch, 'Panchayats and Women' in Status of Panchayats in the States and Union Territories of India 2000; Institute of Social Sciences, New Delhi, 2000, p 34.
13 Vinod Vyasulu and Poornima, Women in Panchayati Raj: Grass Roots Democracy in India? Experience from Malgudi, March 1999.
14 South Asia Human Rights Documentation Centre (SAHRDC), Racial Discrimination: The Record of India, September 2001, pp 36-37.