Compiled by Tina Mathur, Research Associate : 19 August 2008 :The query on legal framework for local governance in States highlighted the problem of multiple interpretations of legal provisions for local governance. Responding to the query, members shared experiences from states where existing legal provisions are not comprehensive enough and are creating contradictions for local government functioning. Members also suggested some ways of improving the legal framework for local governance in states.
Experiences from States
Respondents recognized that the operational aspects of local governments require clear definition and the backing of appropriate legal provisions. This is also important, felt members, in order to differentiate the functional domain of different tiers of panchayats and to enable the exercise of their powers on the principle of subsidiarity.
Sharing experiences from the domain of both rural and urban local governance, members highlighted that the local government Acts passed before the Constitutional amendments of 1992 are still not in conformity with the 73rd and 74th Amendments in many States (See Punjab experience). Respondents mentioned the Kerala Panchayati Raj Act, Karnataka Panchayati Raj Act, Uttar Pradesh Panchayati Raj Act and the Maharashtra Zilla Parishad and Panchayat Samities Act to demonstrate the anomalies. A respondent also narrated the experience of Kerala of local government acting on its discretion, demonstrating the anomalies in the demarcation of mandates (Read more). Further, giving more examples from Kerala, members pointed out that in the case of institutions transferred to local governments, there is lack of clarity on ‘administrative control’ (vested with local government) and technical control (vested with line departments) leading to contradictions in local government functioning. In addition, a member mentioned the problem of interstate variations in respect of the freedom of PRIs for borrowing, despite the conformity Acts passed in the wake of the 73rd and 74th Constitutional amendments.
Participants agreed that a critical problem is that many States have issued notifications to local bodies with regard to the devolution of powers and functions through a series of executive orders and continue to do so. While in many cases the panchayats are not fully conversant with the documents, in many places the notifications do not reach them at all. Additionally, while the State Panchayati Raj Acts were passed in the immediate wake of the 73rd and 74th Constitutional Amendments, some of the rules were enacted much later and in some States are still in the pipeline. This gap has compounded the problems in interpretation of local government laws and complexity in the functioning of local governments according to their mandates.
Suggestions on improving the legal framework for local governance
Respondents gave suggestions on evolving proper rules and laws for aligning the theory and practice of decentralization. Members suggested analyzing Central legislations pertaining to various subjects under purview of local governments. It would be useful, they said, to define the principles on which local governance is built before starting this analysis. Discussants also felt that the results of the Activity Mapping exercises could be used as a base for reviewing legislation. Further, the scope of executive Government Orders and guidelines could be analyzed vis a vis the legal framework as these run the risk of relegating PRIs to the position of agencies of the state government, rather than democratically elected bodies of local representation.
Members suggested that the Appellate Tribunals or the Ombudsman institutions could aid in clarifying and interpreting mandates in cases of administrative actions arising out of misinterpretation of rules. In the context of Kerala, the Sen Committee Report has outlined the role and inevitability of the Appellate Tribunal and the Ombudsman system. The effectiveness of the system, however, depends on the merit and capacity for impartial functioning of the persons holding posts in these institutions. Additionally, members gave detailed suggestions on conforming state specific rules to the panchayat legislations.
In conclusion, respondents agreed that there are significant gaps in legislation related to local self government in States which is leading to improper or inadequate functioning of the local bodies. They suggested that this area receive greater attention by States alongwith continued advocacy for promotion of decentralization.