Until 1992 local self government rested only on Art.40, a Directive Principle requiring the State to organise village panchayats and endow them with such powers as may be necessary to enable them to function as units of self government. Because it was non-justiciable, practice varied greatly and elected local bodies were often superseded for years. The 73rd and 74th Amendment Acts, 1992 gave local government constitutional status, so that its existence, term and composition ceased to depend on the will of the State Government.
The Two Amendments Compared
| Feature | 73rd Amendment (Panchayats) | 74th Amendment (Municipalities) |
|---|---|---|
| Part inserted | Part IX, Arts.243 to 243-O | Part IXA, Arts.243P to 243ZG |
| Schedule inserted | Eleventh Schedule, 29 subjects | Twelfth Schedule, 18 subjects |
| Bodies | Village, intermediate and district Panchayats | Nagar Panchayat, Municipal Council, Municipal Corporation |
| Grassroots body | Gram Sabha (Art.243A) | Wards Committees (Art.243S) |
| Planning body | None specific | District Planning Committee (Art.243ZD) and Metropolitan Planning Committee (Art.243ZE) |
Panchayats: Part IX
| Provision | Subject | Key Rule |
|---|---|---|
| Art.243A | Gram Sabha | A body of persons registered in the electoral rolls of a village, exercising such powers as the State Legislature provides by law |
| Art.243B | Three tiers | Panchayats at the village, intermediate and district levels. A State with a population not exceeding twenty lakhs need not constitute the intermediate level |
| Art.243C | Composition | All seats filled by direct election from territorial constituencies |
| Art.243D | Reservation | Seats for Scheduled Castes and Scheduled Tribes in proportion to population; not less than one third of the total seats for women, including one third of the seats reserved for Scheduled Caste and Scheduled Tribe women; reservation also of the offices of Chairpersons; backward classes at the State's option under Art.243D(6) |
| Art.243E | Duration | Five years, with election completed before expiry; where dissolved earlier, election within six months, and the new body serves only the remainder of the term |
| Art.243F | Disqualifications | Minimum age twenty one years |
| Art.243G | Powers | The State Legislature may endow Panchayats with such powers as are necessary to enable them to function as institutions of self government, including in relation to the Eleventh Schedule subjects |
| Art.243H | Finances | The State Legislature may authorise a Panchayat to levy taxes, duties, tolls and fees, and assign it State revenues |
| Art.243I | State Finance Commission | Constituted by the Governor every fifth year to review the financial position of Panchayats |
| Art.243K | State Election Commission | Superintendence, direction and control of Panchayat elections vested in a State Election Commissioner appointed by the Governor |
| Art.243M | Exclusions | The Part does not apply to Scheduled and Tribal Areas, Nagaland, Meghalaya, Mizoram, the hill areas of Manipur, and certain other areas |
| Art.243-O | Bar on courts | Delimitation and allotment of seats not to be questioned in any court; an election may be questioned only by an election petition |
Extension to Scheduled Areas: Because Art.243M excluded Fifth Schedule areas, Parliament enacted the Panchayats (Extension to the Scheduled Areas) Act, 1996, commonly called PESA, which extends Part IX to those areas with modifications recognising customary law, community resources and the primacy of the Gram Sabha, notably in relation to consultation before land acquisition and the management of minor minerals and minor forest produce.
Municipalities: Part IXA
| Provision | Subject | Key Rule |
|---|---|---|
| Art.243Q | Three kinds of Municipality | Nagar Panchayat for a transitional area, Municipal Council for a smaller urban area, and Municipal Corporation for a larger urban area, specified by the Governor by public notification |
| Criteria for classification | Art.243Q(2) | Population, density, revenue generated for local administration, percentage of employment in non-agricultural activities, economic importance, and other factors the Governor deems fit |
| Art.243R | Composition | All seats filled by direct election, with provision for representation of persons having special knowledge, who have no right to vote in the meetings |
| Art.243S | Wards Committees | Mandatory in a Municipality with a population of three lakhs or more |
| Art.243T | Reservation | Same scheme as Art.243D, including not less than one third of seats for women |
| Art.243U | Duration | Five years, on the same terms as Art.243E |
| Art.243W | Powers | Endowment of powers in relation to the Twelfth Schedule subjects |
| Art.243ZD | District Planning Committee | To consolidate the plans prepared by Panchayats and Municipalities in the district |
| Art.243ZE | Metropolitan Planning Committee | For every metropolitan area, meaning an area with a population of ten lakhs or more |
| Art.243ZG | Bar on courts | Corresponding to Art.243-O |
The weakness at the heart of both Parts: Articles 243G and 243W are permissive, not mandatory. They say the State Legislature "may" endow local bodies with powers in relation to the Eleventh and Twelfth Schedule subjects. What the amendments therefore guarantee is the existence, term and composition of local bodies, and elections to them, not the transfer of functions, funds or functionaries. The result in practice has been that local bodies are securely constituted but often left with little to do and less to spend. This is the standard criticism of both amendments and should feature in any evaluative answer.
Facts: Elections to a Municipal Corporation were postponed beyond the expiry of its five year term, the State pleading pending delimitation of wards, administrative difficulty and want of funds.
Issue: Whether the requirement in Art.243U that elections be completed before the expiry of the term is mandatory, and what the position of the State Election Commission is.
Held: The provision is mandatory. Elections must be held so as to constitute the new body before the expiry of the outgoing body's five year term, and where a body is dissolved earlier, within six months. Administrative inconvenience, pending delimitation and want of funds are not valid grounds for postponement. The State Election Commission occupies the same position in relation to local elections as the Election Commission of India does for parliamentary and Assembly elections, and State Governments are bound to provide it with the necessary staff and funds. Only in the most extraordinary circumstances, such as a natural calamity, may an election be deferred.
Relevance: The leading enforcement case. Cite it whenever a question involves supersession or postponement of local elections.
Facts: State laws providing for reservation of seats in Panchayats and Municipalities for backward classes, in some cases taking total reservation well beyond half the seats, were challenged.
Issue: Whether reservation for backward classes in local bodies is permissible, and whether the ceiling applicable to reservation in employment and education applies.
Held: Articles 243D(6) and 243T(6) are enabling provisions: reservation for backward classes is permitted but is not constitutionally compelled, unlike that for Scheduled Castes, Scheduled Tribes and women. Reservation in political representation stands on a different footing from reservation in employment and education, so the identification of backward classes for this purpose requires a separate and rigorous empirical inquiry rather than the adoption of existing lists. The Court held that the aggregate of reservation for Scheduled Castes, Scheduled Tribes and backward classes in local bodies should ordinarily not exceed fifty per cent of the total seats.
Relevance: The leading case on reservation in local bodies. Note the three points: enabling not mandatory, separate empirical inquiry, and the fifty per cent ceiling.
Facts: A State law reserved twenty seven per cent of seats in local bodies for other backward classes without any contemporaneous inquiry, with the consequence that in some districts total reservation exceeded fifty per cent.
Issue: What conditions must be satisfied before reserving seats for backward classes in local bodies?
Held: Applying K Krishna Murthy, the Court laid down a triple test: first, the State must set up a dedicated Commission to conduct a rigorous, contemporaneous and empirical inquiry into the nature and implications of backwardness in relation to local bodies; second, it must specify the proportion of reservation required in the light of that Commission's recommendations; and third, the reservation must not exceed the aggregate ceiling of fifty per cent of the total seats together with that for Scheduled Castes and Scheduled Tribes. Reservation made without satisfying the test was held invalid.
Relevance: The operative test in current practice. State it as three numbered conditions, which is how it is usually asked.
Illustrations
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Two tier State: A State with a population of eighteen lakhs constitutes Panchayats only at the village and district levels. This is permissible, the proviso to Art.243B allowing a State with a population not exceeding twenty lakhs to dispense with the intermediate level.
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Reservation for women: A State reserves thirty per cent of Panchayat seats for women. This is insufficient, Art.243D(3) requiring not less than one third.
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Early dissolution: A Panchayat elected in 2020 is dissolved in 2023. A fresh election must be held within six months, and the new Panchayat serves only until 2025, that is the remainder of the original five year term (Art.243E).
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Postponement of elections: A State postpones municipal elections pending ward delimitation. Applying Kishansing Tomar (2006), the ground is not valid and elections must be completed before the expiry of the term.
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Nominated members voting: A State law permits nominated experts to vote in Municipal Council meetings. This offends Art.243R(2)(a), which allows their representation but expressly denies them the right to vote in the meetings.
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Wards Committee: A Municipality has a population of four lakhs but has constituted no Wards Committees. This breaches Art.243S, which makes them mandatory at three lakhs or more.
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Backward class reservation without inquiry: A State applies its existing list of backward classes to reserve seats in Panchayats. Applying K Krishna Murthy (2010) and Vikas Kishanrao Gawali (2021), a separate contemporaneous empirical inquiry by a dedicated Commission is required, and the reservation is invalid without it.
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Aggregate exceeding half: In a district, reservation for Scheduled Castes, Scheduled Tribes and backward classes together comes to fifty eight per cent. This exceeds the fifty per cent ceiling and is invalid.
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Election dispute: A candidate seeks to challenge a Panchayat election by writ petition. Article 243-O bars it, an election being questionable only by an election petition under the State law.
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Scheduled Area: A Fifth Schedule area is governed by Panchayats. Part IX applies to it only through the Panchayats (Extension to the Scheduled Areas) Act, 1996, with the modifications that Act makes.
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Metropolitan planning: An urban agglomeration with a population of twelve lakhs has no Metropolitan Planning Committee. Article 243ZE requires one, the threshold being ten lakhs.
Recall Check
- Which Part and which Schedule did each of the two amendments insert, and how many subjects does each Schedule contain?
- State the three rules in Arts.243E and 243U on duration, early dissolution and the term of the successor body.
- State the triple test for reservation of seats for backward classes in local bodies.
Key Cases
Kishansing Tomar v Municipal Corporation of the City of Ahmedabad (2006) Kishansing Tomar v Municipal Corporation of Ahmedabad 2006
Issue: Whether the five year term and the obligation to hold timely elections are mandatory.
Rule: Elections must be completed before the expiry of the term, and administrative difficulty, pending delimitation or want of funds are not valid grounds for delay.
Held: The provision is mandatory, and the State Election Commission stands on the same footing as the Election Commission of India.
K Krishna Murthy v Union of India (2010) K Krishna Murthy v Union of India 2010
Issue: Whether reservation for backward classes in local bodies is permissible and subject to what limits.
Rule: Arts.243D(6) and 243T(6) are enabling; political reservation requires a separate empirical inquiry; the aggregate should not exceed fifty per cent.
Held: Reservation upheld in principle but subjected to those conditions.
Vikas Kishanrao Gawali v State of Maharashtra (2021) Vikas Kishanrao Gawali v State of Maharashtra 2021
Issue: The conditions for valid reservation of seats for backward classes in local bodies.
Rule: A triple test of a dedicated Commission's empirical inquiry, specification of the proportion in the light of its recommendations, and an aggregate ceiling of fifty per cent.
Held: Reservation made without satisfying the test was invalid.
Distinctions
| Basis | Panchayats (Part IX) | Municipalities (Part IXA) |
|---|---|---|
| Articles | 243 to 243-O | 243P to 243ZG |
| Schedule | Eleventh, 29 subjects | Twelfth, 18 subjects |
| Tiers or types | Village, intermediate, district | Nagar Panchayat, Municipal Council, Municipal Corporation |
| Basic assembly | Gram Sabha (Art.243A) | Wards Committee (Art.243S), mandatory at three lakhs |
| Who classifies | Constitution prescribes tiers | Governor by public notification, on the Art.243Q(2) criteria |
| Planning committees | None | District (Art.243ZD) and Metropolitan (Art.243ZE) |
| Bar on courts | Art.243-O | Art.243ZG |
| Basis | Reservation for Scheduled Castes, Scheduled Tribes and women | Reservation for backward classes |
|---|---|---|
| Character | Mandatory | Enabling, at the State's option |
| Provision | Arts.243D(1) to (4), 243T(1) to (4) | Arts.243D(6), 243T(6) |
| Basis | Proportion of population for Scheduled Castes and Tribes; not less than one third for women | Requires a contemporaneous empirical inquiry |
| Ceiling | Counted towards the aggregate | Counted towards the aggregate, which should not exceed fifty per cent |
| Authority | Text of the Constitution | K Krishna Murthy (2010) and Vikas Kishanrao Gawali (2021) |
Flashcards
Which Directive Principle preceded the 73rd Amendment?
Art.40, requiring the State to organise village panchayats as units of self government.
Which Part and Schedule did the 73rd Amendment insert?
Part IX (Arts.243 to 243-O) and the Eleventh Schedule, containing 29 subjects.
Which Part and Schedule did the 74th Amendment insert?
Part IXA (Arts.243P to 243ZG) and the Twelfth Schedule, containing 18 subjects.
When may a State dispense with the intermediate tier of Panchayats?
Where its population does not exceed twenty lakhs (proviso to Art.243B(2)).
What is the minimum reservation for women in local bodies?
Not less than one third of the total number of seats, including one third of the seats reserved for Scheduled Caste and Scheduled Tribe women.
What is the term of a Panchayat or Municipality?
Five years from the date appointed for its first meeting.
If dissolved early, when must a fresh election be held?
Within six months, and the new body serves only the remainder of the original term.
Are Arts.243G and 243W mandatory?
No. They are permissive, saying the State Legislature "may" endow local bodies with powers, which is the principal weakness of both amendments.
What are the three kinds of Municipality?
Nagar Panchayat for a transitional area, Municipal Council for a smaller urban area, and Municipal Corporation for a larger urban area.
At what population are Wards Committees mandatory?
Three lakhs or more (Art.243S).
What is a metropolitan area for the purposes of Art.243ZE?
An area with a population of ten lakhs or more.
Who conducts local body elections?
The State Election Commission, headed by a State Election Commissioner appointed by the Governor (Arts.243K, 243ZA).
Can local elections be postponed for want of funds?
No. Kishansing Tomar (2006) held such grounds insufficient and the timing mandatory.
How may a local body election be questioned?
Only by an election petition, writ jurisdiction being barred by Arts.243-O and 243ZG.
Which Act extends Part IX to Fifth Schedule areas?
The Panchayats (Extension to the Scheduled Areas) Act, 1996.
State the triple test for backward class reservation in local bodies.
A dedicated Commission's contemporaneous empirical inquiry; specification of the proportion in the light of its recommendations; and an aggregate ceiling of fifty per cent with Scheduled Caste and Scheduled Tribe reservation.
Exam Scenario
Problem: State X has a population of thirty lakhs. Its Panchayat law constitutes only village and district Panchayats, reserves twenty five per cent of seats for women, and reserves twenty seven per cent for other backward classes on the basis of a list drawn up for educational admissions in 1998, taking total reservation in some districts to fifty six per cent. The term of the district Panchayats expires in June, but the State postpones elections to December citing pending delimitation and a shortage of polling staff, and appoints administrators in the interim. A Municipality of four lakhs has constituted no Wards Committees, and a defeated candidate files a writ petition challenging the allotment of seats between wards. Advise.
Step 1: Measure the structure and the women's reservation against the mandatory floors
Both defects are failures to meet a constitutional minimum, so neither can be argued around.
| Defect | Provision | Requirement | On these facts |
|---|---|---|---|
| Only village and district Panchayats constituted | Art.243B | Three tiers are mandatory, and the proviso exempts only a State whose population does not exceed twenty lakhs | Unconstitutional. State X is at thirty lakhs and must constitute the intermediate level |
| Twenty five per cent of seats reserved for women | Art.243D(3) | Not less than one third | Void to that extent. Twenty five per cent falls short of the floor |
Step 2: Run the triple test on the backward class reservation
Apply K Krishna Murthy v Union of India (2010) and Vikas Kishanrao Gawali v State of Maharashtra (2021), and take the triple test in order:
- Contemporaneous empirical inquiry. The State has conducted none. It has borrowed a list prepared in 1998 for educational admissions, and the Court has held that political reservation stands on a distinct footing requiring a dedicated Commission and a fresh empirical inquiry.
- Specification of the proportion. The proportion has not been specified in the light of any such recommendation, but fixed at a round figure.
- The aggregate ceiling. The aggregate reaches fifty six per cent in some districts, exceeding the fifty per cent ceiling.
The reservation fails all three limbs and is invalid.
Step 3: Attack the postponement of the elections
Apply Kishansing Tomar v Municipal Corporation of the City of Ahmedabad (2006). Art.243E requires the election to be completed before the expiry of the five year term. The postponement to December is unlawful.
The appointment of administrators compounds it, since the constitutional scheme contemplates an elected body at all times and does not permit a gap to be filled by executive nominees.
The State Election Commission stands on the same footing as the Election Commission of India, and the State is bound to furnish it with staff and funds.
Step 4: Compel the Wards Committees under Art.243S
Apply Art.243S. Wards Committees are mandatory where the population is three lakhs or more.
A Municipality of four lakhs is therefore in breach and may be compelled by mandamus to constitute them.
Step 5: Meet the bar in Art.243ZG on the writ petition
Apply Art.243ZG, read with Art.243-O for Panchayats. The validity of a law relating to delimitation of constituencies or the allotment of seats cannot be called in question in any court, and an election may be questioned only by an election petition under the State law.
The writ petition is therefore barred, and the candidate must pursue an election petition.
The twenty lakh proviso. The exemption from the intermediate tier in Art.243B applies only where the State's population does not exceed twenty lakhs. Check the figure before conceding a two tier structure.
One third is a floor, not a target. The shortfall under Art.243D(3) cannot be justified by any State interest, the figure being a constitutional minimum.
Administrative excuses do not save a postponement. Kishansing Tomar expressly held that pending delimitation, administrative difficulty and want of staff or funds are not valid grounds, and administrators are not a permitted stopgap.
Art.243ZG bars only election specific challenges. Distinguish the challenges in Steps 1 to 4, which attack the statutory scheme and the failure to hold elections rather than the conduct or result of a particular election. Those are not barred.
Conclusion. The two tier structure, the women's reservation, the backward class reservation and the postponement are all unconstitutional. The Municipality must constitute Wards Committees, and the individual election challenge lies only by election petition.
See Also
- Federalism under the Indian Constitution : local government as the third tier of the federal structure.
- Financial Relations : Art.280(3) as amended, linking national devolution to local body finances.
- Election Commission : the Election Commission of India, with which the State Election Commissions are compared.