Decentralised Democracies: A Study of Local Self-Government in India and Europe

I. Introduction

In any democracy, with the ideals of liberty and freedom enshrined in the administrative structure of the country, strengthening these ideals at the grassroots is the ultimate goal. The most logical solution to achieve this goal is by having a strong and robust system of local self-governance. This fact has been recognised in India and in countries across the globe. In Europe, the European Council has enacted a Charter on Local Self-Governance, which broadly serves as a model law that guides the statutory or constitutional protection that each member country must provide to local self-governance in their respective territories.

India has a long history with local self-governance; however, it was only posted enactment of the Constitution and post-economic liberalisation of the 1990s that the self-dependence movement of the Indian villages was seriously considered by the Union Government. This paper traces the history and evolution of local self-governance in India. The paper also looks at the provisions of the Seventy-third and Seventy-fourth Constitutional Amendments which provided constitutional protection to the Panchayats and Municipalities. By studying the history and the contemporary position, the paper sets the Indian structure up for comparison with the European position.

As stated above, Europe also strongly believes in the decentralisation of democracy itself and thereby has committed itself to the strengthening of local administration in the countries constituting the continent. This paper examines how the European Council’s Charter has attempted to achieve the ideal of decentralisation. This paper also examines the structure of LSG Bodies in the countries of Germany, Poland, and the United Kingdom that are in consonance with the ideals of the European Charter.

Subsequently, the paper concludes by attempting to draw parallels between the structures in India, Europe, and the specific European countries that have been studied hereunder. The paper will also suggest precautions that must be exercised in India and the remedies for the shortcomings that exist in India.

II. Setup of local self-governm-ents in India

The concept of local self-governance, village councils and direct democracies are concepts that are almost equivalent to ancient and traditional knowledge in India. Rudimentary forms of village administration and self-rule have, however, undergone a metamorphosis in our country and have evolved into a robust structure of local governance. This journey has been traced in this part over the next few subsections.

Evolution in India

The journey of development and evolution of local self-government, especially the panchayats, can be split across three distinct phases; the ancient and medieval period, the colonial and pre-constitutional period and finally, the period in post-constitutional India. Each period has been separately dealt with hereunder.

(A) Ancient and Medieval India

The oldest mention of self-administering village bodies is found from the Later Vedic or the Rig Vedic period, which was around 1200 B.C. This era is known to have seen the presence of five-member village committees known as sabhas, which later became panchayats². These village committees had far-reaching executive powers such as land revenue collection and also judicial and dispute resolution powers³. Kautilya’s Arthashastra and the Buddhist Jataka Tales also refer to the thriving presence of self-governing and autonomous village units⁴.

This setup continued undisturbed for a long time until the Mughal Period. The Mughals did not interfere with the village life significantly; however, they were predominantly an urban civilisation. This led to the powers of revenue collection largely being concentrated in one person from the village, known as the muqqaddam. During this period, a large amount of the judicial and executive powers of the village council was eroded, and what remained, in many cases, was restricted to the headman, who was a hereditary appointee.

(B) British India

The British Raj defined and continues in many ways to define the legislative, administrative, and judicial practices of our country. The robust present-day local self-government structure, however, is in stark contrast to the otherwise common practice. By the time the British reached our country, there barely existed any strongly recognisable local self-government models that the British could adopt. The presence of any system would’ve been barely relevant because early British rule in India was marked by strong centralising tendencies naturally arising out of their need to consolidate their position in India. With the Indian administration having transferred to the Crown in 1857, the winds of change began to blow. Lord Mayo proposed setting up local councils that would have the power to collect their own taxes and administer themselves with their own revenue⁵. His idea here was to relieve the imperial treasury of at least the burden of local administration.

In the 1870s and 1880s, there was also a growth in the number of ‘English educated middle class. A fear of reprisals from this new class in society led to the first significant step by the British Administration with respect to local self-governments in India. The Ripon Resolution of 1882, referred to as the Magna Carta of modern local self-government in India⁶, recommended that the smallest administrative units (taluka or tehsil) be placed under a local board. These boards could be supervised by district level boards that the provincial governments had the authority to establish⁷. The rudimentary institutions of local Government came up across the country, from Madras to the United Provinces and from Bengal to the Northwest Provinces. However, these bodies were staffed by local men of influence, and appointments were rewards for loyalty to the British. Therefore, the village and local administration largely remained untouched by these developments⁸.

The next major step was the report of the Royal Commission on Decentralisation, more famously known as the Morley Minto Report. This report, a large portion of which was translated as the Government of India Act, 1909, criticised the Ripon Resolutions failure to provide a robust system of local governance. This report recommended a stronger, elected Village Panchayat and local council system with a larger representation for minorities through nomination. These recommendations were considered by the Indian Government’s 1915 resolution on local self-government⁹. The 1919 Government of India Act allotted the subject of local governance to the provinces under the newly established Diarchy system¹⁰. These reforms never took off, and neither did any serious reforms take place pursuant to the 1935 Act¹¹.

(C) Gandhian Ideals and the Constituent Assembly

The Gandhian vision of India revolved around the Indian village. He envisioned a highly decentralised administration with the village as the smallest administrative unit as the nucleus. During the struggle for independence, just as Gandhiji became the embodiment of rural India, the village came to be glorified and became a symbol of aspirations¹². Gandhiji saw the village as a self-functioning republican unit that was independent for its most vital needs in a manner that made the Government irrelevant to the existence of the village¹³.

Dr Ambedkar, however, considered the ideal Gandhian village to be the centrepiece of the caste-based oligarchy that had deprived a significant portion of the masses of their rights for centuries. He considered the Indian village to be the ruination of India¹⁴. The Indian Constitution expressed a centralisation bias, and the initial draft had no mention of the village panchayat. The staunch Gandhians in the Constituent Assembly like KT Shah, T Prakasam, H.V. Kamat and others expressed their concerns and displeasure over this ‘gross omission’. They were of the belief that Dr Ambedkar’s analysis and understanding of the village was erroneous and his lack of participation in the freedom struggle contributed to his ignorance of the contributions that rural India had made to the nationalistic cause. As a compromise, eventually, article 31-A was inserted, which went on to become article 40¹⁵ of the Indian Constitution, which provides for the organisation of Village Panchayats as a Directive Principle of State Policy¹⁶.

(D) Post Constitutional India

The Community Development Programme was a bureaucratically organised programme initiated in the year 1952. Under this programme, a ‘developmental bureaucracy’ was set up at the district level, with the collector assuming the role of a district development officer. Under the collector were block and taluka development officers, extension officers and village officers¹⁷. The failure of this programme led to the appointment of a study team by the Planning Commission in 1956. This Committee was to study and report on ‘Community Development Projects and National Extension Service’. This Committee came to be known as the Balwant Rai Mehta Committee, and the recommendations made by this Committee are visible even in today’s Panchayati Raj Institutional setup.

One of the most significant recommendations of this Committee was the three-tier Panchayati Raj system. As per this suggestion, there would be a Panchayat at the village level, a Samiti at the taluk or block level, and a Parishad at the district level. The Committee, however, only envisaged direct elections to the village level Panchayat, the members of which would indirectly elect members to the intermediate and the district level. Rajasthan was the first State to implement these recommendations in 1959. Various other states followed suit; however, this enthusiasm was short-lived because these PRIs were excluded from various schemes related to agricultural and rural reforms that were announced in the 1960s and 1970s.

In 1977 under the leadership of Ashok Mehta, a committee was appointed to study and review the working of the PRIs. He recommended a two-tier system with the district as the point of decentralisation¹⁸. He considered a village to be too small for effective implementation and a block to be too large; therefore, he suggested the creation of a cluster of ten villages called a Mandal, which will form the 2^nd tier. However, these recommendations confounded an already haphazard system¹⁹. The two-tier system, which had already been implemented and needed revitalisation, was recommended to be taken down and replaced by a new two-tier system. This led to further degradation of the PRIs.

Rajiv Gandhi’s tenure as the Prime Minister of India saw a marked increase in the interest of the administration in revitalising the local self-government set up in the villages and the cities. Mr Gandhi went on visits to various cities in India like Coimbatore, Jaipur, and Imphal, amongst others. Consequently, he tried pushing for a Constitutional Amendment that was defeated in the Rajya Sabha. The Amendment drew heavily from the Singhvi report, which was essentially an annexure to the Ashok Mehta Committee Report. The reason for the defeat was purported to be the fear of the states that they would be completely bypassed by the centre in the organisation of PRIs and urban LSG bodies.

(E) The Constitutional Mandate

In 1991, Congress came back to power under the leadership of Narasimha Rao as Prime Minister. This Government intended to carry forward Rajiv Gandhi’s dream of providing LSG bodies with a robust mechanism emanating from the Constitution. The requisite constitutional mandate materialised in the form of the Seventy-third and Seventy-fourth Amendment Act, which inserted Parts IX and IX-A to the Constitution. These Amendments created a constitutional obligation upon the states to create local self-government bodies in rural and urban India, respectively. The structure, powers, and functions of these bodies are dealt with in the sections below

(F) The Rural Structure – Seventy-third Amendment

The statement of objects and reasons that forms the beginning of the Seventy-third Amendment Act states clearly the issues that plagued the PRIs in India. It lists “the absence of regular elections, prolonged supersessions, insufficient representation of weaker sections like Scheduled Castes, Scheduled Tribes and women, inadequate devolution of powers and lack of financial resources”²⁰ as the reasons that have prevented the PRIs from performing the functions that were expected of them in their journey towards becoming a responsible organisation of the people’s representatives. The objects also rely on article 40 of Part IV of the Indian Constitution that makes the Organisation of Village Panchayats a Directive Principle of State Policy. The statement preceding the provisions contained in the Amendment makes it amply clear that the intention of our lawmakers was to fulfil the State’s obligation in organising a strong and robust system of local self-government in rural India.

Consequently, the Seventy-third Amendment, with its sixteen articles and one Schedule, has created a strong foundation upon which state enactments could build and create a robust system of rural governance.

Article 243B mandates the creation of a three-tier Panchayat system at the village, intermediate (with exception to states having a population below twenty lakhs), and district levels. This is in line with the system envisaged by the Balwantrai Mehta Committee. However, unlike the Committee’s recommendation, all three tiers involve the people directly electing their representatives. One of the most striking features of the Act is the creation of the Gram Sabha. The Gram Sabha is an organisation or a collective of all the voters at the lowest unit of Indian democracy, which is the village. Constitutionally creating an organised body of the voters, which can hold the elected representatives accountable, is the closest possibility of direct democracy. Article 243A defers the roles of the Gram Sabha to the state legislations. The Karnataka Panchayat Raj Act, 1993, mandates that a Gram Sabha meeting be held at least once every six months. The Act also mandates that the quorum requirement of 10% or 100 persons will be incomplete without at least thirty women members being present. This Act has also given wide powers to the Gram Sabha, including, inter alia, the power to identify the beneficiaries of schemes, the power to consider and approve the annual plan prepared by the Panchayat, to get information from the Panchayat on the follow-up action taken on the decisions of the Gram Sabha etc. This Act has also created a Ward Sabha, which is a collection of all voters in each ward that constitutes the Panchayat. The Ward Sabha has powers to seek information and powers of accountability similar to that of the Gram Sabha and acts as a body that provides inputs from the smallest possible collectivised unit to the higher units, which further increases efficiency in participation.

Another significant feature of the Seventy-third Amendment is the provision for reservations. Under Article 243D, members of the Scheduled Castes and Scheduled Tribes have a constitutional right to seek as many seats in all the three tiers of the Panchayat as is proportional to their percentage of the population in the concerned area. Further, the Constitution has mandated that at least one-third of the total seats will be reserved for women. This provision applies horizontally, and therefore third of the representatives getting elected from the seats reserved for the Scheduled Castes and Scheduled Tribes will be women too. Despite the Constitution only mandating a one-third reservation, many states like Kerala, Bihar, Orissa, etc.,²¹ have already reserved up to 50% of the seats for women. The Supreme Court, in the cases of Union of India v. Rakesh Kumar²² and K Krishna Murthy v. Union of India²³, clarified that the provisions under articles 243D and 243T are not the same as the provisions under Part III and therefore, the reservations provided in local bodies may exceed 50%. There was also a move to amend the Constitution to increase the number to 50%, but this hasn’t materialised as yet²⁴. Article 243D is also applicable on a rotation basis to the post of Chairperson at all three tiers. This ensures that the marginalised communities that receive the benefits of reservations do not merely fill up the numbers but also get opportunities to perform leadership roles and occupy positions of influence.

The Seventy-third Amendment provided for the creation of a State Election Commission²⁵ and entrusted it with the responsibility of ensuring free and fair elections to the PRIs, every five years. Any person who has attained the age of twenty-one is eligible to be elected²⁶. If a PRI is dissolved before the completion of its five-year term, elections for the remaining term will be held within a period of six months. This is in contrast to the dissolution of the Legislative Assemblies or the Lok Sabha, wherein elections post the dissolutions are held seeking a mandate for a period of five years itself and not merely for the remaining term. However, this was a welcome move because prior to this Amendment, one of the biggest reasons for the failure of LSG bodies was irregular elections and indefinite supersessions, both of which have been effectively ended by this Amendment.

Panchayats have the power been conferred powers to enact and implement schemes pertaining to matters relating to economic and financial planning, along with the matters listed in the Eleventh Schedule. The Eleventh Schedule is a list of twenty-nine subjects that include a wide variety of matters like sanitation, housing, and drinking water, along with matters like libraries, formal and informal education, and cultural activities. To provide independence to formulate and fund these schemes, the PRIs have also been given the power to impose and collect taxes and duties²⁷. Further, they also have a right to seek grants from the Consolidated Fund of the State. To streamline this process of fund devolution, a State Finance Commission must also be constituted by the states every five years²⁸.

These are some of the most important features of the Seventy-third Amendment Act. They provide a basic and skeletal setup, and the states have been given the freedom to build upon this foundation using their own Panchayati Raj Acts. However, these provisions are not directly applicable to areas declared to be Scheduled under article 244 read with the Fifth Schedule and some other areas specifically mentioned in Article 243M. The Parliament has been empowered, however, to extend the application of the provisions of the Amendment to the said areas also, and this has been done using the Panchayat Extension to Scheduled Areas Act. This Act has been dealt with in the section below.

(G) Provisions of the Panchayats (Extension to Scheduled Areas) Act, 1996

The Parliament, in the extension of its powers under article 243M (4), enacted legislation to extend the applicability of the provisions of Part IX to Fifth Schedule Areas. This legislation is the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996, known commonly as the PESA Act. The PESA Act is unique legislation that applies to the Scheduled Areas in such a manner that the traditional customs, practices, and religion are given due respect. Further, every Gram Sabha is also empowered to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution over and above the powers that the Constitution has conferred upon it. The PESA Act has also gone to the extent of conferring powers of imposing prohibition and/or restricting the sale and consumption of intoxicants to the Panchayat.

The PESA Act, along with Part IX inserted by the Seventy-third Amendment, has helped in laying the foundations for a strong system of democratic representation in rural areas. The provisions pertaining to urban LSG Bodies are addressed in the following section.

(H) The Urban Structure- Seventy-fourth Amendment

The discourse surrounding local self-governance in India is as old as the Constitution itself. However, every conversation, debate, and Committee report largely pertained to the rural LSG bodies or PRIs. Municipalities and Municipal Corporations or other urban bodies, by whatever name known, were as neglected as the rural bodies. The neglect of the urban bodies to an extent where they weren’t even part of the conversations was particularly surprising considering that stalwarts like Sardar Patel had started their careers at the urban local body level²⁹. Despite the absence of discourse surrounding urban LSG bodies, the Government’s move in 1993 to introduce the Seventy-fourth Amendment was a welcome change. There was a need to rejuvenate and revitalise the urban LSG bodies as much as there was a need to do the same for the PRIs, and therefore providing a Constitutional mandate was the right move. The Seventy-fourth Amendment inserted Part IX-A to the Constitution and thereby provided for the first time a constitutional presence to urban local bodies.

The statement of objects and reasons that precede the provisions of the Seventy-fourth Amendment are on the same lines as the statement provided in the Seventy-third Amendment. Issues such as irregular elections, supersessions, insufficient representation of the marginalised, and lack of financial resources plagued the urban bodies too. A constitutional mandate helped bring local self-governance to the quickly burgeoning urban population in India.

Unlike the rural structure, there is no three-tier setup in the urban bodies. There is a single body, called a Municipality, which has been classified into three categories based on population density and size. A transitional area between a rural and urban area will have a Nagar Panchayat, a smaller urban area has a Municipal Council, and a larger urban area has a Municipal Corporation. Urban areas that are a part of industrial areas, wherein facilities are provided by an industrial establishment, are exempt from having a municipality³⁰. The Karnataka Municipalities Act, 1964, defines a smaller urban area inter alia as any area that has a population between twenty thousand and three lakh people or a population density of not less than one thousand five hundred people per square kilometre or an area that has less than fifty prevent of its population involved in agriculture³¹.

Most other provisions contained in the Amendment are comparably similar to the Seventy-third amendment that provides for Panchayats. The reservation principles applicable under Article 243D are contained in article 243T, and seats are reserved for Scheduled Castes and Scheduled Tribes, along with a third of the total seats being reserved for women. Just as there are Gram Sabhas under the Seventy-third Amendment to increase direct participation of the citizenry, there is Ward Committees³² hereunder. Furthermore, urban local bodies also have the power to levy taxes and duties³³ and involve in the implementation of schemes pertaining to matters contained in the Twelfth Schedule. The Finance Commission that is constituted under Article 243I also has the duty of devolution of revenue to the urban local bodies³⁴. The State Election Commission is also tasked with conducting the elections to the urban local bodies, and the term of each Municipality cannot exceed 5 years.

The twelfth Schedule, however, is significantly smaller than the Eleventh Schedule. The Twelfth Schedule only has 18 entries that revolve around the provision of urban amenities like street lights, roads, parks, and recreation grounds but also include subjects like health, sanitation, and slum improvement, amongst other issues.

As stated earlier, a constitutional mandate to protect the interest of urban and rural local self-governing bodies were imperative. However, a major concern affecting both kinds of LSG bodies surrounds the composition of the bodies. The Constitution allows the state legislations to let Members of Parliament and Members of the Legislative Assemblies, who live within the limits of a Panchayat or a Municipality, participate in the proceedings of the concerned LSG body. Some states like Karnataka allow such members to also vote during the proceedings. This practice leads to the proxy exercise of power and control by the state government in the affairs of the local bodies. It also leads to the politicisation of the functioning, and these situations are less than ideal.

Despite these flaws, we may say that a near fool-proof mechanism has been ensured by the Constitution of India with the Seventy-third and Seventy-fourth Amendments. These provisions ensure that representation has been taken to the last mile and is successfully ensuring maximum democratic participation in India.

The structure and setup of LSG Bodies in Europe have been looked at in the following section.

III. Structure of lsg in Europe

The European Charter of Local Self-Government

(A) Evolution of the Charter

A group of mayors from certain European cities got together in the year 1951 to establish a Council of European Municipalities. The organisation started the town twinning movement, which was essentially a movement of cultural and literary exchange that fundamentally aimed at a united Europe that would avoid the terror of any future wars. The aim behind founding this Council was inter alia to create a united, peaceful Europe, based on the principles of local and regional self-government and created from and with its citizens, cities, towns and villages³⁵. This organisation was in many ways a forbearer to the European Union itself.

In 1953 this organisation had its first General Assembly Meeting. This meeting is particularly significant because it was responsible for the passing of the Charter of Local Liberties. In 1985 the European Charter of Local Self-Government was passed, and this Charter was significantly based on the Charter of Local Liberties³⁶.

(B) Provisions of the European Charter

The Preamble to the Charter states the reasons that accompanied the Council of Europe to adopt this Charter. The Council of Europe believed that to further its mandate of a united Europe and that of furthering the democratic ideals that it strives to achieve, it was important that the local authorities be co-opted into its broad scheme of plans. The Preamble states the member nations’ awareness of the importance of the local bodies in building a democratic Europe rooted in decentralisation and asserts the independence that these local bodies require in their functioning.

The Charter presumes the existence of certain requirements for the assertion of local autonomy, and the provisions of the Charter aim to secure these requirements³⁷. Article 2 of the Charter states that domestic legislation must provide for local authorities, and in cases where it is possible, a constitutional mandate must be provided to these LSG Bodies. The concept of local self-government is defined in Article 3 as inter alia, denote the right and ability of local authorities, within the limits of the law, to regulate and manage a substantial share of public affairs³⁸.

The Charter also confers sweeping powers to ensure autonomy and independence on the local bodies. The statutes that confer powers upon the local bodies must provide for the free, full and exclusive exercise of powers to the local bodies³⁹. Further, the local bodies are also empowered to be consulted before any change is effected to their boundaries⁴⁰. These bodies are also empowered to determine their own internal administrative structures⁴¹ , and their officers must enjoy the right to independently exercise their powers without the fear of loss of remuneration, a right that must also be statutorily protected⁴². Article 12 of the Charter provides the ratifying countries with enough freedom to choose the provisions that are applicable to them, provided however that, they accept the applicability of at least twenty paragraphs from the eleven Articles forming a part of Part I of the Charter of which at least ten paragraphs are from specifically curated provisions laid down in Article 12.

One major hassle that the vague and general wordings of the Charter is the challenge that it poses on the implementation front. This is compounded by the fact that, unlike the ECHR, the lack of implementation does not provide for action in the European Court of Justice at Strasbourg, and this is despite Article 11 stating that “local authorities shall have the right of recourse to a judicial remedy in order to secure the free exercise of their powers”. There is a lack of clarity as to whether this remedy is exercisable as a right in any domestic court or whether the local courts must view this right as emanating from an enforceable international treaty that is this European Charter⁴³. Professor Himsworth has also specifically noted in his paper that “There is, therefore, nothing remotely equivalent to the European Court of Human Rights (or indeed the European Court of Justice). There is no provision at all in the Charter for either a tribunal to resolve alleged breaches or for anybody to take up the case of those claiming infringement of their Charter rights”⁴⁴.

Despite these challenges, it is admirable that a collective of nations, such as the European Union, has taken the initiative to reduce democracy to its smallest possible unit. This exercise of decentralisation has only increased the accessibility of the representatives to the people they represent. However, the Charter itself has devolved the power to enact legislation and implement the Charter to each member nation. The implementation in the UK, Germany, and Poland, all of which are members of the Council of Europe, is elucidated below.

(C) Glimpses of the Structure in Select Jurisdictions

As we have seen, the European Charter only provides a mandate to give statutory and as far as possible a constitutional mandate to LSG Bodies in the member countries. The Council of European Municipalities has representations from 40 countries, and the Charter has been ratified by 44 of the 47 member countries of the Council of Europe. Therefore it becomes imperative to look at the implementation of the Charter at the national level. However, as it is impractical to look at its implementation and structure and setup of the LSG Bodies in all countries that have adopted the Charter, the countries of Germany, the United Kingdom and Poland have been looked at here.

Germany

Article 28, clause 2 of German Basic Law constitutes a guarantee of the institution of local self-government. The decentralisation process in Germany involves three tiers. At the lowest level, there are the municipalities and cities known as Gemeinden and Stadte, respectively. The intermediate level of devolution of powers is at the County level, known as Kreise. Finally, the highest level of decentralisation is at the state level, known as Lander⁴⁵.

The Municipal and City administration can be divided into two types. The first type of system is the council system. Under this system, a municipal council headed by the Mayor is elected by direct elections for a term varying between four and nine years. This system is followed in fifteen out of sixteen German Landers. The exception to this council system is the magistrate system that is only found in the German Lander of Hesse. This system also has an elected mayor and Council; however, the executive branch is composed of the Mayor and appointed deputies known as magistrates. They are responsible for the day to day administration of the Municipality and are responsible to the Council⁴⁶.

This third tier of administration has a significant amount of independence and power. The powers include school infrastructure, housing, water and sanitation, and urban planning, amongst others. These municipalities can also levy and collect municipal taxes to fund their activities⁴⁷.

The intermediate level involves the County Assembly known as the Kreistag. This assembly is elected directly by the residents of a county for a period varying from four to six years. The executive head is a civil servant who may be elected by the Council or directly by the electorate for a period varying between five to eight years. The executive is composed of selected civil servants, and they, along with the County President, are responsible to the County Assembly. The county also has wide powers that do not overlap either with the powers of the Lander or the powers of the Municipality. Their powers include disaster management, protection of the environment, social services and youth affairs, and public transportation, amongst others.

The Landers are the German States that constitute a federal Germany. They have supervisory powers over the county and the Municipality in some specific Landers. However, this supervisory role is limited to the extent of financial devolution and allocation, and the lower tiers of local Government operate largely independently, as is mandated by the European Charter.

We may say that seven main responsibilities are assigned exclusively to municipalities. These seven responsibilities include the exclusive right to pass laws within their own territories, the right to hire and fire their staff in order to develop efficiency, financial independence that also allows them to collect their own taxes⁴⁸, amongst others. This level of independence is in accordance with the European Charter and has led to German LSG Bodies and local administration thriving.

United Kingdom

The United Kingdom is a unique sovereign entity with a unitary political setup. It is composed of the countries of England, Scotland, Wales, and Northern Ireland that have State or regional functions due to the presence of limited sovereignty or due to the lack of absolute sovereignty that countries otherwise enjoy. The implementation of the 1997 devolution agenda has given Wales, Northern Ireland, and Scotland powers that are similar and comparable to those that states enjoy in a federal setup.

In England, there are multi-tiered local administrative structures such as County Councils, Borough Councils, and District Councils. The larger metropolitan areas such as London have Metropolitan Corporations. The members of these councils are elected by the first past the post system in most cases with an exceptionally few areas where proportional representation is followed. In some of the smaller areas in England, there are single-tier local authorities called unitary authorities. This single-tier unitary authority is also seen in Scotland and Wales. The matters over which these local authorities exercise their powers also vary from region to region. In Scotland, for example, greater autonomy exists than in Wales and Northern Ireland⁴⁹. Since the local authorities in Northern Ireland were stripped of most powers in the 1970s due to sectarian violence, grassroots level democracy is yet to flourish again, and this is evidenced by the lack of time, effort, and money spent by the local authorities here⁵⁰. However, some of the common matters of exercise of power are education, roads, transportation, and fire service at the County level and areas such as environmental protection, housing, and parks and recreation at the District level.

The structure of local self-government in the United Kingdom is largely haphazard and disorganised. Although there is no interference from the higher levels of administration, there is a schism between the powers that large and influential city councils exercise and the powers exercised by the smaller councils. Further, the fact that the U.K. has an unwritten constitution has also led to the absence of any constitutional protection of the rights and powers that local bodies have.

Poland

The revolution in Poland in 1989-1990 led to the dismantling of the centralised hegemony that the national Government exercised. At the centre of this process of reformation and decentralisation was the strengthening of the local authorities⁵¹. Decentralisation in Poland involved a structure similar to that of Germany, despite Poland being a unitary state, unlike federal Germany. The devolution of power has been effectuated by the transfer of power from the centre to Municipalities, Counties, and Regions or States.

The Municipal Council is composed of members who are directly elected for a four-year term. The executive head of the Council is the Mayor, who is also directly elected for a four-year term. The executive functions are performed by committees of the elected members, constituted for the implementation of the decisions taken by the Council. The Mayor is also empowered to appoint the head of an administration that is responsible for staffing and the day to day functions of the Council. The lowest tier of local self-governance in Poland has powers relating to environment protection, public transport, culture, and primary education, amongst others. They also have the power to levy and collect taxes⁵².

At the intermediate level, we find counties that have the directly elected County Council. The executive body consists of the head of the County Council and the deputies who constitute the Executive Board. This body, like the County Council, has a four-year term; however, the members of this Board and its head are elected from amongst the members of the County Council. This body has powers in areas such as secondary education, employment, road building, health, and also environmental protection. A feature unique to Poland is the local administration of sixty-five of the largest urban centres. In places like Warsaw, the capital and largest city of Poland, the Municipal Council has been granted special status, and therefore it also has the powers and performs the functions of the County Council.

The highest tier of local administration is the Regional Council. This regional Council is also elected for a four-year term but involves the process of proportional representation. This Council has wide powers of financial and economic control. Apart from the powers, it also exercises power in the areas of road management, employment, higher education, and the environment.

As is clear, the division of powers in Poland is not exclusive. The higher levels regularly exercise powers in areas that the lower levels also have powers in. This overlap of powers leads to issues that affect the independent functioning of the local administration. Furthermore, the structure in Poland is also criticised for failing the mandate of decentralisation. Despite the ambitious attempts at decentralisation and the immediate gains that followed, the central administration in Poland has been criticised for never truly having let go of the centralising tendencies that plagued the Polish administration. This has led to the gains made in the immediate aftermath of the reforms being eroded, if not completely lost⁵³.

IV. Conclusion

There is no doubt about the fact that a strong system of administration at the lowest levels leads to a better administrative structure at the upper levels. Apart from Mahatma Gandhi’s dream of the Indian village to be a self-functioning republic, the lawmakers in India, across decades, have felt the need to have a strong and independent system of local self-governance. This would lead to effective decentralisation, as a consequence of which the central and state governments can redirect a majority of their resources to matters that cannot be practically implemented by the lowest level of governance.

If the Indian system were to be compared to the system that exists in European countries or with the European Charter, one striking feature stands out. This is the large level of independence and non-interference that exists in the LSG bodies there. In India also, the representatives of these bodies are directly elected; however, the Constitution allows for the M.P.s, MLAs, and other government nominees to also form a part of and participate in the proceedings of these LSG Bodies. We have seen how governmental interference has led to the erosion of the system in Poland, and on the other hand, we have seen how the system has been thriving in Germany, where there is minimal interference and that too only to the extent of devolution of finance.

Germany has a well-defined area within which each tier of local governance operates. This is very similar to the Indian system, where Schedules 11 and 12 have clearly laid out the areas upon which the LSG bodies can formulate and implement policies. However, unlike Germany, these are not areas of exclusive exercise of power. This overlap may lead to the transfer of responsibility and accountability. It is necessary that these powers be clearly demarcated at least within the three tiers of village administration, and each tier is given exclusive powers over some matter, and the higher tiers have supervisory jurisdiction over lower tiers.

The Constitutional mandate provided in support of LSG bodies in India is similar to the German system and is in adherence to the European Charter also. This is particularly advantageous because the Constitution has clearly defined a structure that must be adhered to. Therefore in all the states and union territories in India, there is some basic uniformity insofar as the structure and the exercise of powers is concerned. This is in stark contrast to the system in the U.K., where depending on the size, population, and location, there are significant variations in the structural setup as well as the devolution of power.

Further, in Europe, we also see that there is an organisation, or a collective, of LSG Bodies in the form of the Council of European Municipalities and Regions. This body provides a platform for the representative of local bodies across Europe to meet, exchange ideas, have cultural exchanges, and also share their experiences and expertise. An organisation on the lines of this European body can also be established in India at the State and the national level. There are some local bodies that are doing really well, while many others aren’t. An organisation such as a state-level or national-level collective will immensely benefit the process of strengthening the LSG bodies in India. Unity in diversity is the motto of India as a nation. An exchange of culture, knowledge, ideas, and expertise between a hamlet in Karnataka and a town in Manipur will also prove immensely beneficial to the people of both these places and also in the process of integrating India by exposing people to her diversity.

Overall, it may be said while concluding that the process of strengthening grassroots level democracy, and the LSG bodies, is a continuous process. Unlike administration at the state and central level, the challenges to the LSG bodies are of a dynamic nature that changes on almost a daily basis. Therefore the development of these local authorities is also a continuous and dynamic process. India and Indian LSG bodies have performed remarkably well, particularly since the amendments were passed. On various grounds, the Indian LSG structure has already achieved what the European Charter requires its signatories to achieve. However, there is also plenty of room for improvement, especially in areas like independence and non-interference. With the Constitution also requiring state legislatures to enact legislation, the states have a duty to make sure that these legislations are in tune with the times and allow room for the necessary dynamism to exist, thereby causing these LSG bodies to flourish.

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Footnotes

1. Author is an Assistant Professor of Law at the Ramaiah College of Law, Bengaluru, India.

2. Dr. D Rajasekhar, “Local Self-Government in India; An Overview” 43 Nitte Management Review (2012) ↩

3. Ibid. ↩

4. Dhirendra K. Vajpayee and Jennifer M, “Arnold Evolution of Local Self-Government in India”, in Dhirendra K. Vajpayee (ed), Local Democracy and Politics in South Asia Towards Internal Decolonization? (Springer, 2003) ↩

5. Suresh Misra and Rajvir S. Dhaka, Grassroots Democracy in Action (Concept Publishing Company, 2004) ↩

6. Misra and Dhaka, supra note 4 ↩

7. Misra and Dhaka, supra note 4 ↩

8. Supra note 3 ↩

9. Supra note 4 ↩

10. Supra note 3 ↩

11. Supra note 4 ↩

12. SP Aiyar, “Democratic Decentralisation Experiment in India”, The Economic Weekly 1961 ↩

13. Kuldeep Mathur, Panchayati Raj (Oxford India Short Introductions, OUP, 2013) ↩

14. Id. at 8 ↩

15. Constitution of India, art. 40: ↩

16. Supra note 12 ↩

17. Supra note 12 ↩

18. Supra note 4 at 12 ↩

19. Supra note 4 at 12 ↩

20. ^rd Amendment Act 1992 ↩

21. “Women Reservation in Panchayats”, Press Information Bureau, 12 August 2011, available at http://pib.nic.in/newsite/PrintRelease.aspx?relid=74501 (last visited on 22 December 2020) ↩

22. AIR 2010 SC 3244 ↩

23. (2010) 7 SCC 202 ↩

24. Supra note 20 ↩

25. Constitution of India, art. 243K ↩

26. Constitution of India, art. 243F ↩

27. Constitution of India, art. 243H ↩

28. Constitution of India, art. 243I ↩

29. TNN,”‘Ahmedabad municipal Corporation to mark 100 years of Sardar Vallabhbhai Patel’s win”, Times of India, 05 January 2017, available at https://timesofindia.indiatimes.com/city/ahmedabad/amc-to-mark-100-years-of-sardars-win/articleshow/56341493.cms (last visited on 22 December 2020) ↩

30. Constitution of India, art. 243Q ↩

31. Karnataka Municipalities Act 1964, s. 9 ↩

32. Constitution of India, art. 243S ↩

33. Constitution of India, art. 243X ↩

34. Constitution of India, art. 243Y ↩

35. Council of European Municipalities, Report on Local and Regional Government in Europe Structures and Competences, 2016, available at https://www.ccre.org/img/uploads/piecesjointe/filename/CEMR_structures_and_competences_2016_EN.pdf, (last visited on 05 May 2021) ↩

36. Ibid. ↩

37. Chris Himsworth, “Treaty-Making For Standards Of Local Government: The European Charter Of Local Self-Government And Its Possible Application Beyond Europe”, Edinburgh School of Law Working Paper Series University of Edinburgh (2011) ↩

38. Ibid. ↩

39. European Charter of Local Self-Government, art. 4 ↩

40. Ibid., art. 5 ↩

41. Ibid., art. 6 ↩

42. Ibid., art. 7 ↩

43. Supra note 36 at 6 ↩

44. Ibid. at 7 ↩

45. Supra note 35 ↩

46. Ibid. ↩

47. Ibid. ↩

48. Everhord Holtmann and Christian Rademacherg, “Decentralization of Power and of Decision-Making — An Institutional Driver for Systems Change to Democracy” 41 Historical Social Research (2016), available at https://www.jstor.org/stable/43997050 (last visited on 05 May 2021) ↩

49. Supra note 34 ↩

50. Charlie Jeffery, “Devolution and Local Government” 36 Publius (2006), available at https://www.jstor.org/stable/20184942, (last visited on 05 May 2021) ↩

51. Joanna Regulska, ‘Governance or Self-Governance in Poland? Benefits and Threats 20 Years Later’ 22 / 4 International Journal of Politics, Culture, and Society (2009), https://www.jstor.org/stable/25621946, (last visited on 05 May 2021) ↩

52. Supra note 34 ↩

53. Supra note 50 at 38 ↩