CONSTITUTIONAL DEVELOPMENT OF LOCAL GOVERNMENT: A

COMPARATIVE ANALYSIS OF INDIA AND SOUTH AFRICA

Dissertation submitted in partial fulfilment of the requirements for the award of the
degree of
Bachelor of Laws (BSc LLB)

SUBMITTED TO:

DR. GIRISH R.

MRS. DHANYA S.

GUJARAT NATIONAL LAW UNIVERSITY

SUBMITTED BY:

VYAS ABHISHEK DHARMESH

15B167

Gujarat National Law University

Attalika Avenue, Knowledge Corridor
Koba, Gandhinagar, Gujarat–382426
2019
 Seminar Paper I: Comparative Constitutional Law

DECLARATION

DECLARATION
I hereby declare that the research paper titled “Constitutional Development of Local
Government: A Comparative Analysis of India and South Africa” is an original work of mine
and no part of the research paper has been submitted for award of any degree or for any
publication.

Signature

Name of the Candidate: Vyas Abhishek Dharmesh

Date: 04.10.2019

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 Seminar Paper I: Comparative Constitutional Law

THE SUPERVISORS CERTIFICATE

Dr. Girish R.
Assistant Professor of Law
&
Mrs. Dhanya S.
Teaching Research Associate

CERTIFICATE

This is to certify that Vyas Abhishek Dharmesh has pursued and prepared the research paper
titled ‘Constitutional Development of Local Government: A Comparative Analysis of India
and South Africa’ in partial fulfilment of the requirements for the award of the degree of
Bachelor of Laws (BSc. LLB) for the Seminar Paper (Name of the Seminar Paper) under my
supervision. To the best of my knowledge, the research paper is the outcome of his/her own
research.

Signature

Dr. Girish R.
Assistant Professor of Law

&

Mrs. Dhanya S.
Teaching Research Associate

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 Seminar Paper I: Comparative Constitutional Law

ACKNOWLEDGEMENTS

Thanks to the God – the Almighty for giving me the strength to complete this project with
honesty and dedication. This research venture has been made possible due to the generous
cooperation of various persons. To list them all is not practicable, even to repay them in
words is beyond the domain of my lexicon.

This project would not have been possible without the help of my mentors Dr. Girish.R. and
Mrs. Dhanya S. who have always been there at my side whenever I needed some help
regarding any information. They have been my mentors in the truest sense of the term. The
administration has also been kind enough to let me use their facilities for research work. I
thank them for this and am grateful to them.

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 Seminar Paper I: Comparative Constitutional Law

TABLE OF CONTENTS
CHAPTER I: INTRODUCTION ..................................................................................................... 1

CHAPTER II: BACKGROUND TO LOCAL SELF- GOVERNMENT .............................................. 11

CHAPTER III: CONSTITUTIONAL EVOLUTION ........................................................................ 15

CHAPTER IV: CONSTITUTIONAL JURISPRUDENCE ON SOCIAL JUSTICE THROUGH LOCAL

GOVERNMENT .......................................................................................................................... 20

CHAPTER V: SUITABILITY OF THE PRESENT MODELS AND THE NEED FOR REFORM ............. 24

BIBLIOGRAPHY ........................................................................................................................ 36

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 Seminar Paper I: Comparative Constitutional Law

LIST OF ABBREVIATIONS

& And
Art. Article
CC Constitutional Court
ed. Edition
HC High Court
No. Number
Ors. Others
pp. Page/s
Rep. Reprint
s. Section
SC Supreme Court
SCALE Supreme Court Almanac
SCC Supreme Court Cases
SCR Supreme Court Reports
vol Volume
vs Versus

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 Seminar Paper I: Comparative Constitutional Law

LIST OF CASES

• Arumugam Servai vs. State of Tamil Nadu (2011) 6 SCC 405 ........................................... 31
• Bondu Ramaswamy vs Bangalore DevelopmentAuthority (2010) 7 SCC 129 ................... 21
• D.S. Nakara v. Union of India [1983]2 SCR 165 .................................................................. 4
• Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan
Council and Others 1999 (1) SA 374 (CC) ......................................................................... 22
• Gujarat Pradesh Panchayat Parishad vs. State of Gujarat (2007) 7 SCC 718 ..................... 20
• Kishan Singh Tomar vs Municipal Corporation of the City of Ahmedabad Appeal (Civil)
No. 5756 of 2005.................................................................................................................. 27
• Rajbala and Ors. vs State of Haryana and Ors. 2015 (13) SCALE 424 ............................... 20
• S. R. Bommai v. Union of India [1994] 2 SCR 644 ............................................................ 15
• Shakti Vahini v. Union of India and others Writ Petition (Civil) No. 231 of 2010 ............. 31
• Usha Bharti vs State of UP (2014) 7 SCC 663 .................................................................... 21
• Village Panchayat, Calangute vs Additional Director of Panchayat (2012) 7 SCC 550 .... 20

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 Seminar Paper I: Comparative Constitutional Law

CHAPTER I: INTRODUCTION

“True democracy cannot be worked by twenty men sitting at the centre. It has to be worked
from below by the people of every village.” -Mahatma Gandhi1

According to K. Venkatarangiya, ‘local government is the administration of a locality - a

village, a city or any other area smaller than the state - by a body representing the local
inhabitants, possessing a fairly large amount of autonomy, raising at least a part of its revenue
through local taxation and spending its income on services which are regarded as local and,
therefore, distinct from State and Central services.’ 2 This definition explains the different
aspects of local government, in terms of the representation, autonomy and distinctness. The
concept of local government provides for the decentralisation of powers and functions, as
well as ensures the involvement of the community in its activities.3 While India had this form
of governance since time immemorial, in the form of Panchayati Raj; after gaining
independence, the fundamental law of the land – the Constitution of India, initially did not
deal at length with the framework of local government. It was only in the form of Directive
Princples of State Policy – Article 40, dealing with the organisation of village panchayats and
enabling them to function as units of self-governance. The legislative competence in the
matter of local government was with the state (Entry 5, List II, Seventh Schedule). Through
the 73rd and 74th amendments, this was changed, giving two separate parts in the Constitution
(IX and IX-A) for the rural and urban local government, namely, Panchayats and
Municipalities. Two schedules, Eleventh and Twelfth, were also added, providing for their
powers, authority and responsibilities.

In the South African context, the nature of local government has been dependant on the
contemporary political system. While apartheid was prevailing in South Africa, the local
government mechanism was structured in such a manner that the objectives of segregation,
based on racism, could be achieved. When the nation witnessed a democratic transformation,

1
[1946] Harijan 519
2
Venkatarangaiya M and Pattabhiram M, Local Government in India: Selected Readings (Allied Publishers
1969)
3
Srivastava TN, “Local 'Self' Government and the Constitution ”(2002) 37 Economic and Political Weekly
<https://www.jstor.org/stable/pdf/4412421.pdf?refreqid=excelsior:1eccd49a24e9b6e08dd506206eda9c24>
accessed August 26, 2019

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 Seminar Paper I: Comparative Constitutional Law

the Constitution of the Republic of South Africa, Act 108 of 1999 created a system of local
government which was in keeping with their values.4

Both nations, having incorporated local government in its constitutional structure,

endeavoured to achieve its goals of decentralising the powers and functions of administration
to some extent in order govern effectively. While both have faced some practical hurdles in
doing so, there is an emphasis on right of the electorate to elect their local representative and
giving sufficient representation at grass roots level.

4
Rawat BF, “The Constitutional Basis of Local Government” (The Constitutional Basis of Local Government)
<https://pdfs.semanticscholar.org/2a72/3e02d870a3eea9080fd682a4260413390283.pdf> accessed August 26,
2019

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 Seminar Paper I: Comparative Constitutional Law

RESEARCH PROBLEM

Local governance is usually the first point of contact for the citizens, as it is directly
overlooking the basic amenities and related aspects of their lives. Mahatma Gandhi had
famously said that the real India lies in her villages5 which should be organized on a basis of
self-sufficiency. Even though local governance has such a significant impact, it took India
more than 40 years to constitutionalise the regime for it. In South Africa, the local
government system was substantially changed under their new constitution after the end of
apartheid. It was transformed from service focussed to autonomous level of government –
having entrenched legislative and executive powers.

As the effect of local government is arguably more direct and immediate than State or Central
government, it stands to reason that its regime should be well-defined and properly
structured. While constitutionalisation of these regimes brings uniformity and legitimacy in
their operations, it has to be sustainable and adaptable. For this, it is imperative to understand
the objectives for such framework. This has motivated the researcher to trace the
development of the legal and constitutional regime of local government and analyse its
structure and functioning. The purpose of this analysis is to understand the suitability of the
current constitutional framework for other developing nations and whether there is a need to
relook it, in order to make it more workable.

5
“The Mind of Mahatma Gandhi [ Encyclopedia of Gandhi's Thoughts ]” (Chapter-76: Back To The Village |
The Mind of Mahatma Gandhi | Free Online Books) <https://www.gandhiashramsevagram.org/mind-of-
mahatma-gandhi/back-to-the-village.php> accessed August 26, 2019

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 Seminar Paper I: Comparative Constitutional Law

SIGNIFICANCE OF THE STUDY

The significance of this research is reflected in the clear immediacy and relevance of local
government in the daily lives of every citizen. In a welfare state like India6, various social
benefits are given directly or indirectly through the local government, which are the first
point of contact for the citizens. While Panchayats and urban local bodies have created
sufficient political representation at grass roots level, there have been some failures at
providing better governance.7

It is imperative that such mechanism is transparent and well-functioning, and in order for that
to happen, proper analysis and re-examination of the current constitutional regime and its
evolution have to be undertaken. Just like India, South Africa had also constitutionalized the
local government framework in the last decade of 20th century. Therefore, it would be fruitful
to understand through comparison as to how South Africa, a developing nation like India, has
dealt with the relevant issues in this area.

6
D.S. Nakara vs Union of India [1983]2 SCR 165
7
Rajagopalan S, “Evaluating the Panchayati Raj Institutions at 25” (https://www.livemint.comApril 30, 2018)
<https://www.livemint.com/Opinion/SvD5HQO5xTajYrqFj2zy9L/Evaluating-the-panchayati-raj-institutions-at-
25.html> accessed August 26, 2019

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 Seminar Paper I: Comparative Constitutional Law

OBJECTIVES OF THE STUDY

The objectives of this research article are as follows:

1. To broadly study the constitutional development of local government in India and its
purpose.
2. To examine whether the constitutionalisation of local government in developing
countries like India and South Africa is a suitable practice.
3. To study the need for a decentralised decision-making framework and its impact at
the grass roots level.
4. To analyse the judicial interpretation of the constitutional provisions for local
government.
5. To arrive at possible recommendations at the end of the study with regard to the
various issues that have been specifically examined.

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 Seminar Paper I: Comparative Constitutional Law

HYPOTHESES

There are two hypotheses of this study:

1. The devolution of powers and responsibilities upon the local government is necessary
for fulfilling the goal of social justice in developing nations.
2. Providing constitutional status to the local government bodies legitimises the structure
and functioning of such bodies and removes deficiencies in them.

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 Seminar Paper I: Comparative Constitutional Law

RESEARCH QUESTIONS

Broadly, this paper will deal with the following research questions:

1. What did the Constituent Assembly envisage with respect to Panchayati Raj and local
government regime for independent India?
2. What was the position of local governance in India prior to the 73rd and 74th
Constitutional Amendment Acts?
3. How has the judiciary interpreted the scope of the constitutional provisions relating to
local government?
4. How has the Constitution of the Republic of South Africa determined the scope and
objectives of local government, and how does it stand in comparison with the Indian
framework?
5. How does the Constitutionalisation of local government bodies impact their structure
and functioning, and whether such practice is useful in developing nations?
6. Whether the current structure of decentralisation needs a relook?

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 Seminar Paper I: Comparative Constitutional Law

SCOPE AND LIMITATIONS OF THE STUDY

The research is confined to the constitutional development of local government of India and
South Africa and the respective legal regimes, with their objectives, structure, powers and
functioning. This is sought to be done by appraising the available academic research and
judicial pronouncements on this subject. The comparative aspect of this research is limited to
two developing nations, having certain historical and socio-economic similarities as well as
dissimilarities, involving a careful evaluation of the principles behind the existing
constitutional framework in these jurisdictions and the suitability of such practices.

As the subject is intricately intertwined with social justice and community involvement,
certain social implications of the constitutional frameworks would also be touched upon in
this research. Also, as Panchayati Raj was strongly advocated by Gandhiji, a few perspectives
of Gandhian jurisprudence will also be analysed along with the Constitutional Assembly
Debates.

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 Seminar Paper I: Comparative Constitutional Law

RESEARCH METHODOLOGY

The methodology adopted for this research is doctrinal, with reliance placed on primary,
secondary and tertiary sources of literature. The researcher will be relying on different
provisions of the Constitutions of India and the Republic of South Africa, as primary sources.
In order to understand the jurisprudence in this subject, various case laws have will be
referred to and analysed. Books and scholarly articles on Constitutional law, local
government, social justice and allied topics will be relied upon by the researcher to find
answers to the abovementioned research questions. The emphasis of the researcher will be on
the comparative aspect of the research so as to appreciate the varying constitutional approach
to local government.

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 Seminar Paper I: Comparative Constitutional Law

TENTATIVE CHAPTERISATION

Chapter I: Introduction

- Brief overview of the current system of local governance in India and South Africa
will be provided. Also, the essence of the Constitutional provisions will be summarily
mentioned.

Chapter II: Constitutional evolution

- The objectives envisaged by the framers of the Constitution of India will be analysed
with a central view on the Constitutional Assembly Debates and Gandhian
perspective of Panchayati Raj. For South Africa, the vision of local government in the
Final Constitution, after the end of apartheid, will be explained. The similarities and
contrasts of both nations coming out of a regressive regime will be analysed through
the constitutional aspirations.

Chapter III: Constitutional jurisprudence on social justice through local government

- The modern objectives and impacts of constitutionalisation of local government and

the interpretation of such model will be covered for both the jurisdictions. Case laws
will be analysed for a part of this chapter.

Chapter IV: Suitability of the present models and the need for reform

- The successes and failures of both the models in achieving the set goals will be
analysed through secondary and tertiary sources of literature and suggestions will be
given wherever necessary. Also, the suitability of these models for developing nations
will be assessed this chapter.

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 Seminar Paper I: Comparative Constitutional Law

CHAPTER II: BACKGROUND TO LOCAL SELF- GOVERNMENT

India

Local self-governance has been a part of India’s historical background and the indigenous
form of this could be seen in the form of Panchayati Raj. The villages of India were called
‘little republics’ by Sir Charles Metcalfe, the Governor General of India in 1835-36.8 After
this, the Lord Rippon Resolution, considered as the Magna Carta of local democracy in India,
became the landmark of local governments in India. During the freedom struggle, Gandhiji’s
Gram Swaraj (Village Self-Rule) became his vision for the non-violent social order for free
India. In his own words:

‘I have pictured to myself an India continually progressing along the lines best suited to her
genius. I do not, however, picture it as a third-class or even a first-class copy of the dying
civilisation of the West. If my dream is fulfilled, and every one of the seven lakhs of villages
becomes a well-living republic in which there are no illiterates, in which no one is idle for
want of work, in which everyone is usefully occupied and has nourishing food, well-ventilated
dwellings, and sufficient Khadi for covering the body, and in which all the villagers know and
observe the laws of hygiene and sanitation. There is nothing inherently impossible in the
picture drawn here. To model such a village may be the work of a lifetime. Any lover of true
democracy and village life can take up a village, treat it as his world and sole work, and he
will find good results.’9

However, the Constituent Assembly only restricted it to a Directive Principle of State Policy
in the Constitution of India. Dr. Ambedkar was the chief critic of village panchayats as the
sink of localism and of ignorance and communalism.10 Gandhian socialists such Jayaprakash
Narayan had shown support for the mechanism of having direct democracy at the village
level and said that the Gram Sabha, i.e. body of persons registered in the electoral rolls
relating to a village, indicates democracy at village level. 73rd and 74thamendments to the
Constitution brought the constitutional status to urban and rural local government bodies.

8
Brahmanandam T, “Review of the 73rd Constitutional Amendment: Issues and Challenges - T.
Brahmanandam, 2018” (SAGE Journals) <https://journals.sagepub.com/doi/full/10.1177/0019556117735461>
accessed October 4, 2019
9
Gandhi MK [1938] Harijan 200
10
Chandhoke N, “Politics over the Constitution” (The HinduJuly 15, 2018)
<https://www.thehindu.com/opinion/lead/politics-over-the-constitution/article24427698.ece> accessed October
4, 2019

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 Seminar Paper I: Comparative Constitutional Law

Summarily, the contents of the provisions added through these two amendments are as
follows:

Part IX (Arts. 243 – 243O) deals with the Panchayats, containing, among other things, Gram
Sabha; the constitution, composition, election and duration of Panchayats; reservation of
seats for different categories of people; disqualifications for memberships; powers, authority
and responsibilities of Panchayats, and the power to impose taxes. The 29 matters related to
the powers, authority and responsibilities of Panchayats are enlisted in Eleventh Schedule,
which includes, inter alia, agriculture, land improvement and land reforms, rural housing,
drinking water, rural electrification, education, poverty alleviation, public distribution system
and health and sanitation.

Part IX-A (Arts. 243P – 243ZG) deals with the similar aspects for Municipalities and Ward
Committees. Similarly, the Twelfth Schedule provides for 18 matters like urban planning,
roads and bridges, slum improvement and upgradation, public health, sanitation conservancy
and solid waste management and vital statistics including registration of births and deaths.

Structurally, the local governance in India can be understood as:

- Urban: Nagar Panchayat for an area in transition from a rural area to urban area;
Municipal Council for a smaller urban area; and Municipal Corporation for a larger
urban area. (Art. 243Q) The demarcation here is made on the basis of the population
in that particular area.
- Rural: Panchayat at village, intermediary and district levels. (Art. 243C) Here the
three-tier system is envisaged, wherein the village panchayat is in close proximity to
the grass roots and the higher levels are for coordinating its functioning.

The purpose of having such mechanism in place for India was to increase the participation of
the local democratic bodies in the effective formulation and implementations of policies for
social justice and economic development. However, an oft-cited flaw in this mechanism is
that the State government’s discretion plays a major role in the functioning of these bodies
and hence the true sense of autonomy is not exercised by them. Also, there is lack of
uniformity owing to the different priorities of different state governments. Therefore, the real
essence of empowerment falls short of what was initially envisaged.

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South Africa

South Africa has also substantiated and legitimised the structure and functioning of its local
government by proclaiming it in its Constitution (The Constitution of the Republic of South
Africa, 1996). Local government mechanism is dealt with in chapter 7 of the Constitution
which was adopted in 1996. Further it is supported by the provisions of chapter 3 which deals
with the principles of cooperative Government. Chapter 13 is also relevant as it deals with
local government finance.

Local government is one of the three spheres of Government in South Africa, with National
and Provincial Government making up the other two. Local government in South Africa
consists of Municipalities which deliver many of the services people depend on in their daily
lives. Section 155 of the Constitution provides for three categories (A, B and C) of
Municipalities – Metropolitan, District and Local. There are 278 Municipalities, comprising
of 8 Metropolitan, 44 District and 226 Local Municipalities. 11 The five objects of local
government are - (a) to provide democratic and accountable government for local
communities; (b) to ensure the provision of services to communities in a sustainable manner;
(c) to promote social and economic development; (d) to promote a safe and healthy
environment; and (e) to encourage the involvement of communities and community
organisations in the matters of local government.12

The Constitution determines the powers and functions of local government in Schedules 4
and 5. 13 The services fulfilled by Municipalities are mainly within the framework of the
Constitution, national and provincial legislations. 14 Those functions are, amongst others,
electricity, water and sanitation facilities, refuse removal, roads, parks and recreation,
community halls and public places. Although each sphere of Government in South Africa has
its own exclusive competencies, all three spheres must cooperate, assist and support, and
coordinate their actions and legislations with one another.15 For some functional areas, they
also share competencies and responsibilities, for example, national and provincial
governments share the responsibilities for the police force and disaster management.
Similarly, there are certain shared or concurrent competencies, for example, housing. For

11
(Local government | South African Government) <https://www.gov.za/about-government/government-
system/local-government> accessed October 4, 2019
12
Constitution of the Republic of South Africa 1996, s 152
13
Constitution of the Republic of South Africa 1996, s 156
14
Constitution of the Republic of South Africa 1996, s 151 (3)
15
Constitution of the Republic of South Africa 1996, s 154

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 Seminar Paper I: Comparative Constitutional Law

matters like defence force and University education, there is exclusive national competency.
For matters like ambulance services and provincial roads, there is exclusive provincial
competency.

Each Municipality has a council which is elected during local government elections every
five years. The Municipal Council governs the Municipality. The Council is constituted of
elected members, who adopt policies, make bye-laws, raise income and spend funds, and take
decisions at Council meetings on all matters that fall within its powers and functions. 16 The
Municipal Administration is managed by the Municipal Manager, who is responsible to
employing skilled staff and implementing the Council’s programmes and projects.

Under the Constitution and other laws, the public has the right and an obligation to participate
in Municipal decision making, through ward committees, public meetings, submission of
representations and proposals, and direct contact with the elected Councillors.17

16
Constitution of the Republic of South Africa 1996, s 157, 160
17
Local Government: Municipal Structures Act 1998, s 72

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 Seminar Paper I: Comparative Constitutional Law

CHAPTER III: CONSTITUTIONAL EVOLUTION

India

1. Constituent Assembly Debates

The Constituent Assembly Debates reflected an ideological struggle on the lines of

centralisation of power that was envisaged for free India. While the majority vision was to
create a federal structure with strong bias towards the Centre18, there were proposals to have
it the Gandhian way by having a decentralised structure. Shriman Narayan Agrawal had
published the Gandhian Constitution of Free India, which was based on Agrawal’s study of
Gandhiji’s writings.19 A very striking feature of this draft was a political and administrative
setup which was decentralised – having village panchayats as the core units.20 Even judicial
powers were envisioned for the village panchayats.21 A significant amount of discussion took
place in Constituent Assembly regarding the incorporation of Gandhian ideas, especially
those regarding Panchayati Raj. But ultimately, with a notable opposition from Dr.
Ambedkar, the Constituent Assembly did not accept the Panchayati Raj administrative
system.

Certain members of the Constituent Assembly had expressed their discontentment over this
rejection. Arun Chandra Guha stated that:

“This Constitution is a product of a revolutionary movement and it must reflect the

aspirations of the revolutionary masses. We have been conducting a revolution and we are in
the midst of it and we have not come to the end of our journey. But during the course of our
struggle we have been given some revolutionary and economic ideas which, I am afraid have
not been correctly represented, except two niggardly concessions to the ideology of
Gandhiji in articles 40 and 43,. i. g, regarding village Panchayats and cottage industries. Even
retaining the authority for the Centre, even retaining some provisions for stabilizing the

18
S. R. Bommai v. Union of India [1994] 2 SCR 644
19
“Gandhian Constitution for Free India (Shriman Narayan Agarwal, 1946)”
<https://www.constitutionofindia.net/historical_constitutions/gandhian_constitution_for_free_india__shriman_n
arayan_agarwal__1946__2nd April 1945> accessed October 4, 2019
20
“Gandhian Constitution for Free India (Shriman Narayan Agarwal, 1946)”
<https://www.constitutionofindia.net/historical_constitutions/gandhian_constitution_for_free_india__shriman_n
arayan_agarwal__1946__2nd April 1945#SR.119> accessed October 4, 2019
21
“Gandhian Constitution for Free India (Shriman Narayan Agarwal,
1946)”<https://www.constitutionofindia.net/historical_constitutions/gandhian_constitution_for_free_india__shri
man_narayan_agarwal__1946__2nd April 1945#SR.202> accessed October 4, 2019

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 Seminar Paper I: Comparative Constitutional Law

society, this is a thing which could have been conceded and provided for in this
Constitution.”22

Shankarrao Deo criticised the definite bias that was there towards a centralised setup, stating
that India would fail in giving a non-violent social order to herself and the world by doing so.
In a poetic manner, the drawbacks of a centralised administrative setup were presented by
Deo – “In the centralised society of today one bomb on the power plant is enough to
extinguish all light and there is no single lamp left to light up darkness. But where many
lamps burn with little oil in the tiny mud pots, there may not be the flood light that dazzles
but there will never be darkness.”23

The general resentment of those who advocated the Gandhian way of governance pivoted on
the fact that the essence of the revolution on which gave freedom to India was converted to
mere tokenism in the Constituent Assembly by placing it in the non-justiciable Directive
Principles of State Policy. Reference was made to Sir Charles Metcalfe’s memorandum of
1832, wherein, before the Select Committee of the House of Commons, it was highlighted
that how the panchayats sustained their culture and life when dynasties were toppled by
revolutions. However, there was a sense of optimism in certain members, like S.M. Ghose,
that Constitution, which had provided the basis for panchayats, will be worked out. 24

Quite evidently, the inclusion of Art. 40 as a Directive Principle of State Policy had not more
than put up a conceptual view-point. It had not enacted it in a mandatory and constitutive
form as a fundamental and operating part of the constitution. The provision of Article 40,
however, did contain in it the seeds of a constitutional mandate and unequivocally projected
the concept of panchayats as distinct units of self-government and required that they should
be endowed with all essential powers and authority to empower them to function as units of
self-government.

2. Post-Independence

Several committees were set up after independence to implement the model of Panchayati
Raj system in India. Balwant Rai Mehta committee, appointed by the Central Government in
1957, recommended a three-tier system of panchayat in India, namely, Gram Panchayat (at

22
Constituent Assembly Debates, vol X-XII (Lok Sabha Secretariat 2003) 728
23
Constituent Assembly Debates, vol X-XII (Lok Sabha Secretariat 2003) 731
24
Constituent Assembly Debates, vol X-XII (Lok Sabha Secretariat 2003) 745

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 Seminar Paper I: Comparative Constitutional Law

village level), Panchayat Samiti (at intermediary level) and Zilla Parishad (at district level).In
1959, this system was first implemented in Nagaur, Rajasthan. Soon, other states like Andhra
Pradesh, Assam and Karnataka implemented the system of Panchayat Samiti and Zilla
Parishad. The Ashok Mehta Committee Report of 1978 recommended the replacement of the
three-tier system with a two-tier system – Zilla Parishad and Mandal Parishad. It stated that
the district should be the first point of decentralisation, below the State level.25 Below that
they suggested a Mandal Panchayat, covering a population of 15,000 to 20,000, also ensuring
efficient management of the rural-urban linkages.

In 1985, the G.V.K. Rao Committee was set up by the then Planning Commission, which
focused on the transfer of powers to the democratic bodies at the local level. It stressed on the
need to activate the Panchayati Raj institutions to become effective organisations for handling
problems of the people. It was also suggested that elections for these bodies should be held
regularly.26 In 1986, the L.M. Singhvi Committee on Revitalization of PRIs recommended
that that local self-government needed to be ‘constitutionally recognised, protected and
preserved by the inclusion of a new chapter in the Constitution’.27It was envisaged that local
self-government, and Panchayati Raj institutions in particular, have to be considered as the
third tier of Government by the Constitution of India. An interesting suggestion of this
committee was that of Nyaya Panchayat – being entrusted with the functions of mediation
and conciliation in addition to adjudication. Based on this, in 1989 itself, the 64th
Constitutional Amendment Bill was introduced in Lok Sabha. However, it was defeated in
Rajya Sabha.

Finally, in 1992, the Constitution (Seventy-third Amendment) Act was passed. It added a new
part to the Constitution, relating to Panchayats, and the Eleventh Schedule – dealing with the
matters related to the power, authority and responsibilities of the Panchayats. The economic
development and social justice regarding the rural areas was legitimised within the
Constitutional framework. Similarly, for the urban areas in India, the local government
regime was proclaimed constitutionally by the Constitution (Seventy-Fourth Amendment)
Act, 1992. The ineffective and weak condition of the urban local bodies was recognised by

25
“Ashok Mehta Committee Report” <https://www.panchayatgyan.gov.in/documents/30336/0/Asoka Mehta
Committee Report.pdf/41d384c3-bab7-4957-8ea0-69d8d5f4fc08> accessed October 4, 2019
26
“Report of the Committee on Administrative Arrangements for Rural Development and Poverty Alleviation
Programmes” <https://www.panchayatgyan.gov.in/documents/30336/0/Recommendations of_G_V_K_
RaoCommittee.pdf/6f0bdc21-c055-4190-82f7-c754321f808b> accessed October 4, 2019
27
“L.M. Singhvi Committee Report” <https://www.panchayatgyan.gov.in/documents/30336/0/L M Singhvi
Committee Report, 1986.pdf/be5b7a6c-41f9-419d-9266-46772aec9b60> accessed October 4, 2019

17
 Seminar Paper I: Comparative Constitutional Law

the Parliament and the amendment was brought in to resolve the inadequacies. Again, another
part was added to the Constitution, with a corresponding schedule for the different matters.

The manner in which different ad hoc systems and mechanisms were in place from 1950 to
1992, and then the ultimate constitutional proclamation, suggests that the initial lack of faith
of the Constituent Assembly in the indigenous ways of governance was unfounded. The
Gandhian idea of Gram Swaraj had its foundation in the cultural and political growth of India
which was closely observed and lived by Mahatma Gandhi, as opposed to the modern
structure which was unbeknownst to the socio-economic diversity of India.

South Africa

Through the South Africa Act of 1909, the Union of South Africa was established. It also
established the second-tier of government in the 4 provinces within the Union – Transvaal,
Natal, Cape and Orange Free State. At that stage, the South Africa Act empowered the
councils of these four provinces to promulgate ordinances with respect to the municipal
institutions, divisional councils and other local institutions.28 In essence, the task of dealing
with the establishment of municipal structures was given to these provincial councils.

Thereafter, during the apartheid time the major aims of the policy in urban areas of South
Africa were to intensify theracial segregation and control the movement and settlement of
black South Africans in such areas. Also, the financial burden, which the black areas had on
the white taxpayers, was to be reduced.29 In the same way, those people in South Africa who
had been categorised as ‘Indian’ and ‘coloured’ as per the laws of apartheid were also
affected by these policies. While there was certain amount of representation given to such
people in the white local councils of those provinces till 1960, this practice was discontinued
by the recommendations of the Niemand Commission (1961).30

Around the 1980s, there was a collapse visible in this form of apartheid local government.
The government structures created in the Indian, Black and Coloured areas saw the most
amount of resistance as these communities did not see any legitimate footing for these

28
South Africa Act 1909, s 85 (vi)
29
Siddle A and Koelble T, “Local Government in South Africa: Can the Objectives of the Developmental State
Be Achieved through the Current Model of Decentralised Governance?”
<https://icld.se/static/files/forskningspublikationer/siddle-koelble-icld-report-7.pdf> accessed October 4, 2019
30
Rawat F, “The Constitutional Basis of Local Government”
<https://pdfs.semanticscholar.org/2a72/3e02d870a3eea9080fd682a4260413390283.pdf> accessed October 4,
2019

18
 Seminar Paper I: Comparative Constitutional Law

structures.31 During this time attempts were made by the government to introduce Regional
Services Councils and Joint Services Boards in order to bring reformation in the black local
authorities. These Councils and Boards were established through the Kwazulu and Natal Joint
Services Act 84 of 1990. The objectives of these establishments were to provide more
revenue and create better consultation amongst the local authorities which were racially
segregated. However, these attempts turned out to be superficial, as till that point enough
damage had been done through the apartheid policies.

In 1993, around March, the process of negotiating a framework regarding the transformation
of local government had taken begun through the setting up of the Local Government
Negotiating Forum. This Forum had ratified its three main outputs by November 1993: a)
agreement of the Local Government Finances and Services; b) Local Government Transition
Act 209, 1993 c) provisions of chapter 10, which dealt with local government, 10 of
Constitution of the Republic of South Africa Act 200 of 1993 (also known as the Interim
Constitution).

The constitutional development of the local government in South Africa can be broadly
categorised into three phases – pre-interim, interim and final. In the pre-interim phase, the
adoption of the Transition Act and the first elections to the local government as per the
Interim Constitution took place. During this phase negotiating forums were created and
temporary councils were appointed. This phase ended when the general elections were held in
February of 1994. After this, in the interim phase till November 1995, the regime was
governed by the Chapter 10 of the Interim Constitution and some provisions of the Transition
Act. The final phase was then guided and governed by the provisions given in the Final
Constitution.

31
Rawat F, “The Constitutional Basis of Local Government”
<https://pdfs.semanticscholar.org/2a72/3e02d870a3eea9080fd682a4260413390283.pdf> accessed October 4,
2019

19
 Seminar Paper I: Comparative Constitutional Law

CHAPTER IV: CONSTITUTIONAL JURISPRUDENCE ON SOCIAL JUSTICE

THROUGH LOCAL GOVERNMENT

India
The objectives and impacts of the 73rd Constitutional Amendment were very succinctly
interpreted in the case of Village Panchayat, Calangute vs Additional Director of
Panchayat32:

‘The provisions contained in Part IX provide firm basis for self-governance by the people at
the grass root through the institution of Panchayats at different levels. For achieving the
objectives enshrined in Part IX of the Constitution, the State Legislatures have enacted laws
and made provision for devolution of powers upon and assigned various functions listed in
the Eleventh Schedule to the Panchayats. The primary focus of the subjects enumerated in the
Eleventh Schedule is on social and economic development of the rural parts of the country by
conferring upon the Panchayat the status of a constitutional body. Parliament has ensured that
the Panchayats would no longer perform the role of simply executing the programs and
policies evolved by the political executive of the State. By virtue of the provisions contained
in Part IX, the Panchayats have been empowered to formulate and implement their own
programs of economic development and social justice in tune with their status as the third tier
of government which is mandated to represent the interests of the people living within its
jurisdiction. The system of Panchayats envisaged in this Part aims at establishing strong and
accountable systems of governance that will in turn ensure more equitable distribution of
resources in a manner beneficial to all.’

As a guiding rule for the understanding of the Panchayati Raj institutions and its role in rural
parts of India, the Preamble, Part IV and Part IX of the Constitution have to be referred. The
enabling provisions in Part IX are Articles 243G and 243H, wherein the broad outlines of the
powers and functions are laid down – which are supposed to be structured by State
legislations.33

The constitutional crystallisation of local self-government was discussed in Gujarat Pradesh

Panchayat Parishad vs. State of Gujarat 34 . Supreme Court stated that District Panchayat
cannot assume the status of a body as independent or autonomous as a province in a

32
Village Panchayat, Calangute vs Additional Director of Panchayat (2012) 7 SCC 550
33
Rajbala and Ors. vs State of Haryana and Ors. 2015 (13) SCALE 424
34
Gujarat Pradesh Panchayat Parishad vs. State of Gujarat (2007) 7 SCC 718

20
 Seminar Paper I: Comparative Constitutional Law

Federation. The objective sought to be achieved by the Seventy Third Amendment was to
confer constitutional status to Local Self Government bodies of District Panchayats, Taluka
Panchayats and Village Panchayats. These democratic bodies at the local level cannot be
done away with by State legislation.

However, the Supreme Court of India has interpreted the Constitutional framework for
Panchayat with certain liberal approach, insofar as the Constitution is not to give all the
details of the provisions contemplated under the scheme of amendment.35

Similarly, for Urban Local Government bodies, Part IX-A seeks to strengthen the democratic
political governance at grass roots level in urban areas by providing constitutional status to
municipalities, and by laying down minimum uniform norms and by ensuring regular and fair
conduct of elections.36

The interpretation of the objectives of Part IX and IX-A by the apex court reflects that a third
level of government that is well organised and transparent and aims at social development.
Most aspects of its constitutional jurisprudence have developed from the disputes regarding
elections.

South Africa

The issues under the South African Constitution regarding the local government have been in
the matters of the competencies and the coordination expected for its smooth functioning.
Also, its jurisprudence was evolved in the process of certification of the Constitution by the
Constitutional court. In the reference made to the Constitutional Court, in the Certification of
the Constitution of the Republic of South Africa37, the nature of the relationship between the
national and provincial government, as well as the local government, was discussed and
explained by the Court as:

‘What the new structure seeks hereby to realize is a structure for Local Government that, on
the one hand, reveals a concern for the autonomy and integrity of Local Government and
prescribes a hands-off relationship between Local Government and other levels of
Government and on the other, acknowledges the requirement that higher levels of
government monitor local government functioning and intervene where such functioning is

35
Usha Bharti vs State of UP (2014) 7 SCC 663
36
Bondu Ramaswamy vs Bangalore Development Authority (2010) 7 SCC 129
37
1996 10 B CL R 1235 (CC)

21
 Seminar Paper I: Comparative Constitutional Law

deficient or defective in a manner that compromises this autonomy. This is the necessary
hands-on component of the relationship.’

When for the first time, the constitution had been taken to the constitutional court to be
certified, the Court found that the first draft did not meet certain requirements insofar as it
had not provided for framework for local government. In the judgement, the court stated what
the new text of the Constitution should consist. According to the court, it should set out the
different categories of local government that could be established by the provinces and a
framework for their structures. It should also set out an overall structural design or scheme
for local government within which local government structures are to function and provinces
are entitled to exercise their establishment powers. Additionally, it should also set out how
local government executives are to appointed and how local governments are to take
decisions. The formal legislative procedures also need to be laid out.

The nature of the local government bodies and its powers was spelled out by the
Constitutional court, and the characteristics of its autonomy were discussed in the case of
Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan
Council and Others.38 The Court observed that:

‘Under the interim constitution (and the 1996 constitution) a local government is no longer a
public body exercising delegated powers. Its council is a deliberative legislative and
executive powers recognized in the Constitution itself.

…The Constitutional status of a local government is thus materially different to what it was
when Parliament was supreme, when not only the powers but the very existence of local
government depended entirely on superior legislatures. The institution of elected local
government could then have been terminated at any time and its functions entrusted to an
administrator appointed by central or provincial governments. That is no longer the position.
Local governments have a place in the constitutional order, have to be established by the
competent authority, and are entitled to certain powers, including the power to make by-laws
and impose rates.’

38
Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and
Others 1999 (1) SA 374 (CC)

22
 Seminar Paper I: Comparative Constitutional Law

In South Africa, as the judiciary itself had participated in framing the structure and functions
of local government, there is great level of meeting of minds among the legislature and
judiciary.

23
 Seminar Paper I: Comparative Constitutional Law

CHAPTER V: SUITABILITY OF THE PRESENT MODELS AND THE NEED FOR

REFORM

Having understood the constitutional evolution and the way the jurisprudence regarding the
local government has developed, it would be fruitful to understand the general internal
legislative structure of both India and South in terms of how their models of local
government actually operate. The inherent difference that will be discussed later is the while
India has distinct form of structure in rural and urban areas, there is no such distinction within
the South African system.

India

The local government regime in India has the enabling provisions of the Constitution
supported by the legislations of the states and the union territories. Most states have
Panchayati Raj Acts for the rural local governance and Municipalities Acts for the urban local
bodies.39 Through the example of four states and one Union Territory, the scope and ambit of
these legislations could be understood to some extent.

1. Gujarat

For the governance of rural local bodies, the Gujarat Panchayats Act, 1993 had been enacted.
Amongst other things, it deals with the establishments of Panchayats at different tiers –
village, Taluka and District. The election, conduct, administrative powers, preparation of
development plans and taxation powers for panchayats at each level are covered within this
legislation.

The Gujarat Municipalities Act, 1963 deals with management of municipal affairs in Gujarat,
dealing with, inter alia, incorporation of Nagar Panchayat and Municipal Council, election of
Councillors, conduct of business, functions of Municipalities, taxation powers and other
powers in general. As compared to the Panchayats, here the powers of the municipalities are
very well laid out and given in greater detail. However, this can be owed to the fundamental
differences in their functioning and the connect with the people.

2. Meghalaya

“The Local Government in India, Country Profile 2017-18”

39

<http://www.clgf.org.uk/default/assets/File/Country_profiles/India.pdf > accessed October 4, 2019

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 Seminar Paper I: Comparative Constitutional Law

Meghalaya is one of the exception states, along with Nagaland and Mizoram, that do not have
the Panchayati Raj institutes, owing to their distinct cultural governance mechanism. The
Municipal Act of 1970, as adapted from the Assam Municipal Act, 1959, lays down the
municipal governance mechanism is Meghalaya. Here, there is provision for Municipal
Boards, for each municipality of a body of Commissioners, and various powers are given to
them through this legislation. The structural difference in the functioning of municipalities is
apparent in Meghalaya.

3. West Bengal

For the local governance in West Bengal, three legislations are in place which deal with both
urban and rural local governance.

Panchayati Act 1973, which was in force before the Constitutional proclamation under the
73rd amendment took place. Here, the three-tier Panchayat structure of Gram Panchayat,
Panchayat Samiti and Zilla Parishad is complimented by Nyaya Panchayat and Samanvay
Samiti, having the judicial and property related powers respectively. This model showcases
the presence of judicial powers at the local government level, over and above the
administrative powers.

The Municipal Act of 1993 deals with the urban municipal affairs in West Bengal by the
Board of Councillors. For Kolkata, there is a separate legislation – The Kolkata Municipal
Corporation Act, 1980 is in place. Again, in both the legislations, the powers are spelled out
in sufficient detail.

4. Tamil Nadu

The three-tier Panchayati Raj system was established in Tamil Nadu through the Tamil Nadu
Panchayats Act, 1994, with the village Panchayat, Panchayat Union Council and District
Panchayat at different levels.

For the urban areas, the Tamil Nadu Urban Local Bodies Act, 1998 is in place, detailing the
constitution, powers and other aspects of the Town Panchayats, Municipalities and Municipal
Corporation.

25
 Seminar Paper I: Comparative Constitutional Law

There is also the spurious concept of Katta Panchayat in Tamil Nadu, infamous for
ostracising families from villages.40

5. Pondicherry

The Pondicherry Village and Commune Panchayats Act, 1973 deals with the local
governance in the Union Territory of Pondicherry. Here, the two-tier system of village
Panchayat and Commune Panchayat councils is followed, with the provision for Nyaya
Panchayat.

Through the examples of a few state and UT legislations, it becomes clear that although there
is a Constitutional proclamation, there is a lack of uniformity in the structure and
nomenclature of this system of governance in India. This could be largely owed to the
diversity in the culture and how it is intertwined with the local self-governance.

South Africa

There are various legislative provisions in South Africa at the national level to organise and
structure the functioning of its municipalities. The Organised Local Government Act, 1997 is
the main legislative framework to provide for the recognition of national and provincial
organisations representing the different categories of municipalities. It also aims to determine
procedures by which local government may designate representatives to participate in the
National Council of Provinces. The procedures by which local government may consult with
national and provincial government are also provided in this legislation.

The determination of categories in which a municipality falls, the Local Government:

Municipal Structures Act, 1998 is in place. It also provides the appropriate division of
functions and powers between categories of municipality. The internal structure, systems and
appropriate electoral systems are also within the ambit of the provisions of this Act.

Furthermore, the following legislations are also relevant to the functioning of the local
government:

- Municipal Demarcation Act 1998 (Act No. 27 of 1998)

- Local Government: Municipal Systems Act 2000 (Act 32 of 2000)

40
“Madras HC: Come up with Law to Prevent Katta Panchayats” (Deccan Chronicle, March 25, 2016)
<https://www.deccanchronicle.com/nation/current-affairs/250316/madras-hc-come-up-with-law-to-prevent-
katta-panchayats.html> accessed October 4, 2019

26
 Seminar Paper I: Comparative Constitutional Law

- Local Government: Municipal Finance Management Act 2003 (Act 56 of 2003)

- Intergovernmental Relations Framework Act 2005 (Act 13 of 2005)
- Municipal Fiscal Powers and Functions Act 2007 (Act 12 of 2007).

The cooperative form in which the local government functions in South Africa, through a
well-defined structure by the national legislation, is indicative of the uniformity in the
mechanism.

Elections

India:

The matters related to election for local government are looked after by the respective State
Election Commissions.41The role and the nature of State Election Commission was succinctly
explained by the Supreme Court in Kishan Singh Tomar vs Municipal Corporation of the
City of Ahmedabad:42

‘The State Election Commissions are to function independent of the concerned State
Governments in the matter of their powers of superintendence, direction and control of all
elections and preparation of electoral rolls for, and the conduct of, all elections to the
Panchayats and Municipalities.it is necessary for all the State governments to recognize the
significance of the State Election Commission, which is a constitutional body and it shall
abide by the directions of the Commission in the same manner in which it follows the
directions of the Election Commission of India during the elections for the Parliament and
State Legislatures. In fact, in the domain of elections to the Panchayats and the Municipal
bodies under the Part IX and Part IX A for the conduct of the elections to these bodies they
enjoy the same status as the Election Commission of India.’

South Africa:

The Electoral Commission of South Africa is a permanent body created by the Constitution to
conduct free and fair elections at all the levels of government. 43 Although it is publicly
funded and accountable to parliament, it is independent of the government. As per the
provisions of Section 190 of the Constitution of the Republic of South Africa, 1996, it is

41
Constitution of India 1950, Art. 243K and 243ZA
42
Kishan Singh Tomar vs Municipal Corporation of the City of Ahmedabad Appeal (Civil) No. 5756 of 2005
43
(Electoral Commission) <http://www.elections.org.za/content/about-us/what-we-do/> accessed October 4,
2019

27
 Seminar Paper I: Comparative Constitutional Law

mandated to manage elections of the national, provincial and municipal legislative bodies,
ensure that the elections are free and fair, declare the results of such elections; and compile as
well as maintain a voters' roll.

India and South Africa share a lot of similarities in the way both nations came out of an
oppressive regime while making their Constitution; India from the British colonialism in
1947, whereas South Africa saw the end of the discriminatory apartheid regime in the early
1990s. Internally as well, there have been clashes between the communities – where on one
hand India saw the troubles after partition between the Hindus and the Muslims, the South
African scene had the discriminatory practices of the Whites against the Blacks, Indians and
Coloured. Both nations have linguistically and culturally diverse population and the modern
form of governance aims at including all the sections of the society in its growth and
development. The architects of the new social order for both the nations, Mahatma for India
and Nelson Mandela for South Africa, envisioned a participative grass roots level form of
governance. 44 The goal of social justice was at the centre of their struggles against the
oppressive regimes. The most effective manner in which this could be done was by having
democratic bodies at the level that is closest to the last person in the queue.

These aspects are reflected in varying degrees in the Constitution that was drafted. While
South Africa ensured that matters related to the local government were crystallised in the
Constitution, India initially started with a form of tokenism to the idea of Gram Swaraj of
Mahatma Gandhi, by incorporating it within the DPSP. It was only through the experiences in
the four decades after independence that India realised the need for a more structured regime
for local government. As both are developing nations, the immediate cause of concern is to
ensure that the basic civic facilities are provided to all its citizens in the most effective and
direct. With this background, it would now be fruitful to understand the suitability of the
models for developing nations, by looking at the positive and workable elements of the
systems followed by India and South Africa.

Positives of the Indian Model

Certainty: Having made the provisions of Panchayati Raj and Municipal governance a part of
the Constitution makes the process and execution of the programmes more certain. Firstly, it

44
Fernandes K, “Nelson Mandela's Life Has Valuable Lessons on Social Justice” (The CSR Journal February
18, 2019) <https://thecsrjournal.in/csr-nelson-mandela-life-valuable-lessons-on-social-justice/> accessed
October 4, 2019

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 Seminar Paper I: Comparative Constitutional Law

puts the entire system on a higher pedestal with greater immunity, compared to national and
provincial legislation. Secondly, the violation of the provisions will invite greater scrutiny.
For example, before the provisions were Constitutionalised, the elections to the bodies of
Panchayati Raj were not being held even after the term had long expired.45 Elections are the
most essential elements of any democratic institution. When this is mandated compulsory
through a constitutional provision, the touchstone on which its violation is assessed is of
greater magnitude. India, having mentioned this aspect adequately in its Constitution, has
sufficiently provided this arrangement. When the elections are regular and properly
supervised to be free and fair, the legitimacy of the institution automatically increases.

Although the state government has a discretion under the current system, the skeletal
structure for these local government bodies has fixed the basic criteria for the conduct.

Power to levy taxes: Giving the local government bodies the authority to generate revenue for
the effective functioning makes them more autonomous and efficient. Also, the level of
accountability increases by doing this.

Adaptability: While aiming for uniformity and certainty, the system of local governance
should not become rigid and unmalleable. This was ensured in the 73rd and 74th amendments
by giving states the authority to figure out the details and nitty-gritties of the conduct of the
local government bodies by passing appropriate legislations. This could be seen both as an
advantage as well as disadvantage, insofar as the purpose of decentralisation might be
defeated if the major decision-making is done at the level of State rather than village or ward.

Closest channel for social justice programmes: The disbursement of the benefits of various
social welfare schemes and policies could be best channelled through the medium of local
government bodies. While autonomy is intended for better functioning, a coordinated and
cooperative effort at all three levels would provide best results for the goal of social justice.
The development plans of the particular locality would also reflect the needs of the people
living there and would be tailor-made to their requirements.

Representation to different segments: The constitutional mandate of giving representation to

women and certain classes of people ensures that the participative nature of this governance
is justified.

45
L.M. Singhvi Committee Report” <https://www.panchayatgyan.gov.in/documents/30336/0/L M Singhvi
Committee Report, 1986.pdf/be5b7a6c-41f9-419d-9266-46772aec9b60> accessed October 4, 2019

29
 Seminar Paper I: Comparative Constitutional Law

Thus, by doing away with ad hoc-ism and providing a well laid out structure to incorporate
the conduct of local governance in India puts forward a practical and, at least on paper,
balanced Constitutional mandate. The suggestions of the Singhvi Committee also highlighted
these aspects to be necessary for holistic implementation of Panchayati Raj. Although this
could have been realised earlier by the Constituent Assembly to begin with. These elements
are essential for a developing nation and one that considers itself to be a welfare state.

Positives of the South African Model:

Collaborative efforts: The model followed by South Africa ensures that all the three levels of
government work towards the administrative purpose of determining and meeting the needs
of the citizens. Although this might also lead to what is referred by Nico Steyler as ‘curse of
common competencies’46, the collaborative effort brings together the different stakeholders to
take care of the macro as well as micro issues.

Greater encouragement to public participation: Section 152 of South African Constitution

makes it a mandate to include participation of people in the decision making and
development and the municipality level. Herein lies the essence of decentralisation – when
the citizens realise their responsibility in their own welfare. This also increases accountability
on the part of the administrative authorities as well as the citizens.

Simultaneous elections: The national, provincial and municipal elections in South Africa are
conducted simultaneously. This has several advantages as well as disadvantages. While it will
save time and energy, and can lead in the increase in voting percentage, there could be
practical difficulties like shortage of staff and security.47 However, all this depends on the
population and availability of skilled man-power.

Challenges

India

The essence of decentralization is lost when the State government has greater say in the
major areas of decision making, compromising with the certain level of autonomy that is
envisaged for these local democratic bodies. The domination by the senior or higher levels of

46
Brahmanandam T, “Review of the 73rd Constitutional Amendment: Issues and Challenges - T.
Brahmanandam, 2018” (SAGE Journals) <https://journals.sagepub.com/doi/full/10.1177/0019556117735461>
accessed October 4, 2019
47
“Draft Report : Simultaneous Elections” (Law Commission of India)
<http://www.lawcommissionofindia.nic.in/reports/Simultaneous_Elections.pdf> accessed October 4, 2019

30
 Seminar Paper I: Comparative Constitutional Law

government defeats the entire purpose of decentralised systems of government. The focus
could shift from the local issues to the provincial or regional ones, as the vote bank gimmicks
would undermine social welfare of the minorities. This could also give way to more party
politics instead of the matters of concern as the grass roots level. The manipulative tactics
which could be used during the election time to gather more political mileage.

Another problem with the current regime introduced through the 73rd amendment is that there
is lack of uniformity in the legislations of different states for the functioning of local
government. In some cases, it is not even compatible with the central and state norms. For
example, in Haryana minimum educational qualification was fixed for the candidature in
Panchayat elections.48 Although it is desirable to have qualified and educated people in local
governance, when such requirement is not there for Lok Sabha election, it is unfair and
inconsistent to have differing standards.

While the Constitution does fix a framework for the structure of Panchayats and
Municipalities, in practice, different states have different models, some of which may even
lead to arbitrary and unreasonable outcomes. Again, taking the example of Haryana, where
the Khap Panchayats had assumed the role of a parallel law enforcement agency, the
‘kangaroo courts’49 it ran undermined the sanctity of Panchayats. Such systems are also found
in Tamil Nadu, where they are called ‘Katta Panchayat’. The Supreme Court had heavily
criticised the functioning of such bodies in relation to abhorrent crimes like honour killing in
Shakti Vahini vs. Union of India and others.50

India being a diverse country, in order to stick to its indigenous methods of self-governance,
there has to be a proper balance between allowing the customary practices, but not outside the
scope of the Constitution, more specifically Fundamental Rights (Part III). The first point of
contact for the citizens in governance is that of their local government, and if this level of
government is mixed with the same ills of the corruption, vote bank politics and red tape-ism,
the vision of decentralisation and Gram Swaraj would always remain unachieved. Certain
recommendations are given at the end which could possibly bring positive structural changes.

South Africa

48
Rajagopal K, “Supreme Court Upholds Haryana Panchayat Law” (The Hindu, March 24, 2016)
<https://www.thehindu.com/news/national/haryana-law-on-minimum-qualification-for-panchayat-polls-valid-
says-supreme-court/article7969669.ece> accessed October 4, 2019
49
Arumugam Servai vs. State of Tamil Nadu (2011) 6 SCC 405
50
Shakti Vahini v. Union of India and others Writ Petition (Civil) No. 231 of 2010

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 Seminar Paper I: Comparative Constitutional Law

As briefly stated earlier, the major problem with the system of local in South Africa is
regarding the ‘common competencies’ which leads to issues with accountability. For a more
coordinated way of governance, the Constitution and different legislations envisaged
concurrent competencies in certain matters of local governance. This leads to an obvious risk
of confusion and lack of clarity with respect to the duties and roles of each of the level. This
is further complicated when the political nature of competition at the national and provincial
level trickles down to the municipality level.

Common competencies are begotten when different levels of government have authority over
the same matter or functional area.51 India too has this problem, as mentioned earlier. The
73rd and 74th Constitutional Amendments enlist various functions of the local government
which may be determined by the states as to whether they should be devolved to the local
government bodies. Owing to the position of the local government in the hierarchy of
government, the provincial or national government have more exclusive powers. Such a
situation may lead to duplication of services or mere blame game wherein none of the levels
take accountability, and the responsibility to provide services and civic facilities is shifted
from one to another.

As per the Cooperative Governance Traditional Affairs review in 2014, out of the 278
Municipalities in South Africa, the bottom third are not performing properly, owing to
infrastructural deficiencies, inadequate public participation and lack of skilled personnel. In
very a revealing report, it is stated that:

‘The bottom third of municipalities are frankly dysfunctional, and significant work is
required to get them to function properly. Among others we find endemic corruption,
councils which don’t function, no structured community engagement, and poor financial
management leading to continuous negative audit outcomes. There is a poor record of service
delivery, and functions such as fixing potholes, collecting refuse, maintaining public places
or fixing street lights are not performed. While most of the necessary resources to render the
functions or maintain the systems are available, the basic mechanisms to perform these
functions are often not in place. It is in these municipalities that we are failing our people

51
Brahmanandam T, “Review of the 73rd Constitutional Amendment: Issues and Challenges - T.
Brahmanandam” (SAGE Journals, 2018) <https://journals.sagepub.com/doi/full/10.1177/0019556117735461>
accessed October 4, 2019

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 Seminar Paper I: Comparative Constitutional Law

dramatically, and where we need to be intervening urgently in order to correct the decay in
the system.’52

Recommendations

Having succinctly looked at the Constitutional evolution of Indian and South African models
of local government and the various working facets of these models, certain
recommendations are made, although primarily applicable in the Indian context, which can be
incorporated within the Constitutional and legislative framework of developing nations, to
successfully incorporate an effective model of local governance.

1. Flexibility

In spite of the 73rd and 74th amendments to the Constitution, which were, amongst other
things, aimed at bringing uniformity in the structural and typological aspects of local
government – in practice the States and UTs have their own modifications to suit the needs.
When the economic and social circumstances as well as the historical backgrounds are varied
in a state, and much so across the country, it is difficult to set criteria that would apply
uniformly throughout the nation. It would be neither practical nor desirable to have a uniform
structural pattern. It is recommended to have the basic guidelines and principles for the
pattern and structure of the local government laid down in the Constitution. Thereafter, it
should be left to the State to figure out the pattern that would be most suitable for its local
government structure. A suggested pattern could be one where one tier is in direct and close
proximity to the people, through which the development plans could be best formulated and
implemented, and one tier at higher level in order to look after the monitoring and
supervision aspects.53The delegation of roles between the tiers will have to be left to the local
genius, considering the culture of the state and the capabilities which can be formed at
various levels. With respect to Urban bodies, the population-wise demarcation seems to be
the appropriate pattern.

2. Simultaneous Elections

52
<http://www.cogta.gov.za/cgta_2016/wp-content/uploads/2016/06/The-Presidential-Local-Government-
Summit.pdf> accessed October 4, 2019
53
“Decentralisation in India Challenges & Opportunities” (United Nations Development Programme)
<https://www.undp.org/content/dam/india/docs/decentralisation_india_challenges_opportunities.pdf> accessed
October 4, 2019

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 Seminar Paper I: Comparative Constitutional Law

To ensure that the elections to the local level government see the actual participation of
people whom they are governing, it would be desirable to have simultaneous elections. What
simultaneous elections effectively mean is that the voters cast their vote on the same day for
electing the members to all tiers of the Government.54The Law Commission of India had also
concluded in 2018 that ‘the time has come for India to revert to simultaneous elections in the
greater national interest.’55Although it would be very challenging to conduct the elections as
the number of local government bodies is very high in India.56

3. Local Government Judicial Tribunal

The Singhvi Committee had recommended for a ‘Panchayati Raj Judicial Tribunal to be
constituted in each State to adjudicate controversies in relation to elections, suspensions,
supersessions, dissolutions and other matters relating to the working of Panchayati Raj
institutions and its elected personnel.’57 Having such a body specialised in dealing with the
aspects of local government officials would certainly make the entire system more efficient
and accountable.

4. Clear demarcation

As discussed earlier, there is a lack of uniformity in the administrative structures and units of
local government in India due to the uniqueness of the evolution and historical background.
But due to this variety, the operational responsibility among the different tiers of bodies (eg.
Panchayats) is unclear. As a matter of practice, the State or Provincial Government through
its rules the functions that are entrusted to each level.

For the South African problem of common competencies should also be resolved through the
national legislations and various forms of delegated legislations, based on the principle that
there must be very clear demarcation of functions and responsibilities is essential to achieve
the Constitutional goals set out in Chapter 7.

5. Revival of Nyaya Panchayats

54
Debroy B and Desai K, “Analysis of Simultaneous Elections: The '‘What’, ‘Why’ and ‘How’”
<https://niti.gov.in/writereaddata/files/document_publication/Note on Simultaneous Elections.pdf> accessed
October 4, 2019
55
“Draft Report : Simultaneous Elections” (Law Commission of India)
<http://www.lawcommissionofindia.nic.in/reports/Simultaneous_Elections.pdf> accessed October 4, 2019
56
As of 4th October, 2019, there are 2,60,142 Panchayati Raj Institutions reflected on the Local Government
Directory. Accessed <https://lgdirectory.gov.in/rptConsolidateforRuralLB.do?OWASP_CSRFTOKEN=J1EM-
AA3S-WD5Y-0ME7-0VYD-46FL-HCE3-W0PI>
57
L.M. Singhvi Committee Report” <https://www.panchayatgyan.gov.in/documents/30336/0/L M Singhvi
Committee Report, 1986.pdf/be5b7a6c-41f9-419d-9266-46772aec9b60> accessed October 4, 2019

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 Seminar Paper I: Comparative Constitutional Law

Considering the current problem of the huge backlog of cases and the reliance on alternative
forms of dispute resolution to tackle this problem, the recognition of Nyaya Panchayats
uniformly and creating a workable system out of them for mediation and conciliation would
be greatly beneficial. It would be a very feasible and practical mechanism. However, the
initial challenge of ensuring a fair system of Nyaya Panchayats when the chances of caste-
based domination are high. But through a mechanism wherein these aspects are addressed
and sufficient representation is ensured could be worked out.

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 Seminar Paper I: Comparative Constitutional Law

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ONLINE SOURCES

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 Seminar Paper I: Comparative Constitutional Law

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 Seminar Paper I: Comparative Constitutional Law

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 Seminar Paper I: Comparative Constitutional Law

<https://www.jstor.org/stable/pdf/4412421.pdf?refreqid=excelsior:1eccd49a24e9b6e08dd5
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STATUTES

• Local Government: Municipal Structures Act 1998 ............................................................ 14

• South Africa Act 1909, s 85 (vi) .......................................................................................... 18

39