In his latest interview to the editor of a North – Indian daily newspaper, Chief Minister Omar Abdullah sought credit for having introduced Panchayati Raj in the State after a gap of more than 30 years. He said, “An entire generation has come and gone without Panchayats functioning here. Do you not expect some teething problems.”
When asked has he been able to sort out controversy over the amendment to the State Panchayat Act to give power to the Panchs, Omar Abdullah explained, ” There is no issue with 73rd amendment. What is the point of us having our own Constitution if we are going to bring in every amendment that the Government of India brings in and make it automatically applicable here. “Continuing the refrain, Finance Minister Abdul Rahim Rather said” National Conference would not allow direct application of 73rd amendment of Indian Constitution to J&K Panchayati Raj Act …… We are ready to incorporate certain provisions of this amendment but cannot allow it fully extended to the State Panchayati Raj Act as it undermines the special position enjoyed by the State under Article 370. “Congress, the coalition partner in Government has somewhat different, sometimes, ambivalent attitude in the matter.
We wish same piety to State’s autonomy and special status was observed when, with exceptional alacrity, 42nd amendment of Indian constitution was incorporated in the State constitution under the guise of 16th amendment.
Former extended life of the Lok Shaba by one year in 1976 and the latter gave one extension to the State Assembly in 1977.
While as extending effect of the 42nd amendment was erased in 1978 by Constitutional 44th amendment and earlier position was restored, our honourable M L As have no qualms in enjoying a six year term. That much for politicians regard for state’s autonomy! When the state government follows spirit of a central legislation if it suits the convenience, there is no sense to give a different spin to the letter .
What is the 73rd amendment. It has added certain provisions to the Indian Constitution by way of Articles 243 A to 243 N in Part 1X , regarding the Panchayats. In brief, the amendment has provided for a Gram Sabha, constitution, composition, duration, powers, authority and responsibilities of the Panchayats. In addition, it has made room for constitution of Finance Commission to review financial position of the Panchayats. Of the various provisions incorporated by the amendment, Article 243 E is of great significance. Clause (1) prescribes a term of five years for every Panchayat,and clause (3) says that an election to constitute a Panchayat shall be completed before expiry of its duration specified in clause (1). This provision lends continuation to the institution of Panchayat. Had it been so in our case the Chief Minister wouldn’t lament “an entire generation has come and gone without Panchayats functioning here.” True, Section 42 in the Panchayati Raj Act 1989 ( Shortly the Act) stipulates holding of election to the Halqa Panchayat one month prior to the expiry of term or within six months from the date of supersession , as the case may be . The Act has come in force on Ist July 1997 vide SRO 220 of 30.6.1997. Yet in practice effect to it was given much later and, in gross violation to Section 42, a long gap occurred between the expiry of earlier Panchayats and the election to the present Panchyats. Yet, no one could be held accountable.
Similarly, Sub Section (2) of Sec 42 says election to the Block Development Councils shall be held one month prior to the expiry of the term. And we have no such councils in place. The exercise initiated in this regard, a couple of weeks before, was aborted for no worthwhile reasons.
No doubt, Omar Abdullah’s Government deserves credit for having travelled a distance towards ushering in Panchayati Raj in J & K. Order No; 1126 -GAD of 2011 Dated 22 9 2011 has been issued, by virtue of which a process of empowerment of Panchayati Raj Institutions ( PRIs ) pertaining to 14 Departments has begun . But more needs to done, if these institutions have to become focal points of self-governance and carry democracy to the gross roots. The Chief Minister said the Act would be suitably amended to incorporate beneficial provision of the 73rd amendment , without compromising State’s autonomy . As noted above, mere amending the Act would not achieve the desired results. In order to make P R Is truly functional and financially autonomous some amount of Constitutional guarantee, on par with Articles 243 A to 243 N of the Indian Constitution, is required. Some may argue that there is Section 16 in the J&K Constitution to take care of the situation.
According to it, the State shall take steps to organise Panchayats and enable them to function as units of self – government. The Section is in Part 1V Of State Constitution which contains Directive Principles of the State Policy. The Part is handicapped in as much as it does not have a binding mandate for the government to follow. No citizen can invoke a jurisdiction of a court for the enforcement of the Directive Principles, as they are not justiciable. Besides , the section is of a general nature. It is most appropriate to note here that 73rd amendment was carried through despite Article 40 being there in the Indian Constitution. The amendment was necessitated because Article 40 fell in Directive Principles Chapter of the Constitution. J&K Constitution too needs to be amended suitably.
The author is Former Pr, District& Sessions Judge
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