Gram Sabha & Panchayat Raj

By Prabhakar Timble
22 May 2013 06:04 IST

The Indian constitutional framework of parliamentary democracy envisages power “from” the people as opposed to the romanticism of power “to” the people. Accepting that the power resides in the people of India, we should also respect and appreciate the corollary that ours is a representative and not a direct democracy. The Constituent Assembly rejected even an informal concession to direct democracy at any level of governance in the three-tier federal structure. As a result, there is no recognition to referendum to decide on major issues of public importance or the right of recall of elected representatives. Gandhi strongly advocated self-governance and ‘gram swaraj’.  Later, Jayaprakash Narayan (1977) and Anna Hazare led India Against Corruption (2011) have been advocating the extra-constitutional tools of referendum, recall, reject and compulsory approvals from Gram Sabha as methods to stay closer to direct democracy.

Dr. Babasaheb Ambedkar expressed a very negative opinion of village communities and had strong apprehensions to the idea of “Gram Swaraj” in a society where caste, gender discrimination and inequity in land ownership were an inseparable part of village life. It was evident that direct democracy would not work to the advantage of the disadvantaged sections such as lower castes, depressed classes including women and the landless.  As opposed to Gandhian idealism, Ambedkar looked at the village as a sink of localism,   den of ignorance, narrow-mindedness, and communalism. As a result, ‘village panchayats’ did not form the basis of the Constitution. They were not accorded any independent status in the Constitution as institutions of self-governance. After heated debates, the panchayats ended up as article 40 under the chapter on directive principles.   It was left to the State to take steps to organise village panchayats and endow them with powers. At the commencement of the Constitution, looking at the power and social structure in the villages, power to panchayat and Gram Sabha could have blocked welfare schemes and primary facilities in the area of health, education and housing to the poor. It is the 73rd Constitutional Amendment of 1992 which provided the constitutional status to the village panchayats with provisions for devolution of powers and responsibilities for the preparation of economic development plans and social justice and implementation of around 29 subjects listed in the eleventh schedule to the constitution.

PESA stands apart

"Gram Sabha" means a body consisting of persons registered in the electoral rolls relating to a village comprised within the area of Panchayat at the village level. Article 243‐A of the Indian Constitution does not specify the functions and powers of it except to say that “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” This enabling provision has largely resulted in giving innocent functions such as to endorse, to recommend, to suggest, to consider annual accounts and administrative reports and audit notes. The recommendations of the Gram Sabha are not binding on the Panchayat i.e. they do not have the force of law. This does not mean that the Panchayat would disregard the endorsements of the gram sabha.

The Panchayat Extension of Scheduled Areas Act, 1996 (PESA) sets a different target to Gram Sabha. The enactment applies to Andhra Pradesh, Gujarat, Himachal Pradesh, Madhya Pradesh, Maharashtra, Rajasthan, Jharkhand, Chhattisgarh and Orissa. Consultation with the Gram Sabha is required in Scheduled Areas before land acquisition or any developmental projects which would involve effect on ‘Jal’ (water), ‘Jungal’ (forests) and ‘Jamin’ (land) as the control of these resources should remain in the hands of tribals.

The verdict of the Supreme Court in Orissa Mining Corporation v/s MoEF asking the gram sabhas of affected villages in Rayagada and Kalahandi districts to decide on the religious rights of tribals living in Niyamgiri hills is upholding the powers of the gram sabha under PESA, 1996. The court has directed that the proceedings of the gram sabha be recorded in the presence of a judicial officer of the rank of district judge. In this verdict, the Court has treated the gram sabha as almost a statutory authority. However, it would not be proper to read form this verdict that the gram sabha has power to approve or reject. Consultation and ascertaining of views of gram sabha would be a non-negotiable requirement in the case of acquisition or projects in scheduled areas covered by PESA.

Gram Sabha does not have the power to reject schemes and proposals. Last week, the Allahabad High Court has said that a gram sabha does not have the power to cancel or approve the licence for running a fair price shop. (FPS) within its jurisdiction. "The resolution of the gram sabha for taking action against the fair price shop dealer at best can be termed as an information or complaint by the gram sabha against the fair price shop dealer, which may form a basis for initiating any action.” However, nothing prevents the competent authority from taking action against the dealer if the complaints are genuine. Further, a gram sabha cannot ban or accord permission. It is absurd to read media reports of gram sabha meetings withdrawing construction licences or project permissions granted by panchayat. Gram sabha can show its opposition or agreement but it cannot be construed as rejection or acceptance. Looking at the present situation in which the gram sabha is placed, such powers would make panchayat and village development unworkable. We have to also understand that we cannot move towards multiple village republics under the mistaken notion of strengthening democracy and governance.

GS not an opposition party

Gram Sabha should not be harboured and nursed as the opposition party in the village panchayat. If we have to achieve the goal of participative governance and planning from the grassroots, the gram sabha should position itself as the eyes, ears, hands and legs of the Panchayat. The gram sabha can enable people to participate in the development processes of the village only if there is capacity building of the people and quality administrative human power is available at the village level. There are instances of effective hold and positive contribution of Gram Sabha on Panchayat. However, these are more as exceptions due to the initiative of private individuals and spirited public officers. Largely, gram sabha is plagued by prejudice, caste and class divisions and works as a platform for the candidates defeated at the panchayat elections to act as interrupters of village development.  The meetings of the Gram Sabha are thinly attended, the participation of women is nominal, and most people who attend are silent listeners except a vocal interest group. Gram Sabha meeting is for information, participation and consultation.  It cannot be stretched to approval and disapproval or for acceptance and rejection of projects unless specifically provided in the statute. If the power to approve or disapprove is provided to gram sabha, then the parameters should be laid down. Though gram sabha is the fulcrum of the panchayat, there could be abuse or miscarriage of the power.  Under the present limitations, gram sabha could be the watchdog and provider of inputs to panchayat. We have not yet created the atmosphere for representative democracy to work at the local self-government level through fiscal and administrative decentralisation. We cannot plunge ourselves into a direct democracy by giving overriding powers to the gram sabha.  

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Prabhakar Timble

Mr Prabhakar Timble is an educationist and a legal expert. He has served several educational institutions, especially as the Principal of Government College at Quepem, Kare College of Law in Madgao as well as couple of Management Institutes. He was also the State Election Commissioner of Goa.

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The article prompted me to express my views on direct democracy…….

It is said that those who do not learn from history are destined to repeat it. Nothing illustrates this better than Madhya Pradesh Panchayat Raj (Sanshodhan) Act, 2001 (Act No. 1 of 2001) has apparently been brought into existence by persons who have never studied history or constitution! The Statement of Objects annexed to the Act declares that it was considered necessary to establish a system of Direct Democracy by empowering village assemblies for development of villages by decentralization. The Minister for rural development of Madhya Pradesh further affirmed at the floor of Legislative Assembly that this was a move towards converting representative democracy into direct democracy. It has been assumed by the Minister and his party (Congress) that direct democracy is better than representative democracy.

Very brief history of Democracy: What began as Greek democracy in 508 B. C. (considered as birth of Democracy) under Cleisthenes became an aristocracy under Pericles by 430 B.C. The Greek historian Thucydides (c.460-c.400 B.C.) commented on the reality of democracy under Pericles when he wrote: "It was in theory, a democracy but in fact it became the rule of the first Athenian."

The experiment of direct democracy in Athens led to the collapse of Greek civilization. One can say that almost without exceptions, direct democracy has been a failure wherever it has been attempted and has not led to any development. In recent times, the most common mechanisms of direct democracy are: the initiative, referendum, and recall. The initiative refers to the right of citizens to initiate the making of a law by common petition. Referendum means decision by citizens on matters of crucial importance. Recall is the right of citizens to call back their elected representatives. The above three mechanisms of direct democracy are conspicuous by their absence in the proposed direct democracy system of Madhya Pradesh.

Strongest criticism of direct democracy is that it is a "surrender of policy making to the activists, the self-interested, the fanatical and the superficial". In the context of social structures of villages, the decision-making shifts to the bullies, the ones who command muscle power and money power and can collect sufficient quorum at the village meetings to give an impression of ‘total village voice.’ After all it is very easy to de-motivate any peace-loving villager from attending the village assembly. In any case the average person does not want to actively participate in politics or governance.

Today, without creating any institutional structure to promote debate, argument and research at village meetings, the Gram Sabhas are degenerating into arenas of open fights where might is right. On account of this, Gram Sabhas ceases to represent the will of the village; instead it represents handful of bullies, who has no accountability to anyone in the village. Presently, we see this happening even with UPA II government wherein ALL government decisions are taken by chairwomen of UPA II (who is mighty, power pack and with ZERO constitutional accountability) and not by prime minister of India (who actually holds constitutional accountability)!

Perhaps, with such cases in mind that Professor Laurence Berns of St. John's College in Annapolis, Md., writes that direct democracy, by "bypassing the cumbersome, compromising, deliberative and negotiating processes of representative government," are in truth moving us toward "that degenerate form of democracy called variously plebiscitary democracy, totalitarian democracy, or more simply, demagogic despotism."

Reality is constitutional niceties sound ridiculous to most political leaders who have no understanding of either constitution or democracy or history. So, we really cannot blame them for being condemned to repeating history of primitive Athens.

- Uday, Margao | 22 nd May 2013 16:17

 

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