The Chief Minister, Omar Abdullah, has constituted a high power committee, headed by the Chief Secretary Madhav Lal for formulating a road map for the transfer of vital functions and finances to the panchayats, to which elections are being held from April 17.
Why could this be done before announcing the elections? And the road map prepared by the high power committee be publicly debated or at least discussed in the assembly, the session of which is just ended? Till the map is released, we have to keep our figures crossed. As it is, the present Panchyati Raj Act is mere an instrument of further centralisation of power rather then a genuine measure of empowerment of the people.
Here I raise some pertinent questions which the high powered committee should consider.
Last time panchayati election was held in 2001.There was hectic discussion between political parties, including the coalition parties in the state government, on some reforms in the Panchayati Raj before this announcement. The Congress party and the opposition parties of Jammu had demanded that the new panchayats should be formed after adoption by the state of 73rd amendment to the Indian constitution which would have made panchayats a genuine instrument of decentralisation of power. It is not 73rd amendment as such that is important. The state, after studying its working in other states of country could have adopted even a better law than elsewhere if the objective was empowerment of the people.
The state assembly, however, did enact a law to constitute an Election Commission to conduct the election. But by that time code of conduct had been enforced which means the Commission would work from next elections. The coming election would be conducted by the Election department of the state government.
The fears about centralization of power through the cover of panchayati raj are further confirmed by some provisions of the State law. While the Central Law provides for direct election to all panchayati raj institutions, it is not so in the state. For instance, not a single member of the district board, under the J&K law shall be directly elected. Chairman shall be nominated by the government who is elected under the Central law. A provision has now been added for an elected Vice-Chairperson of the board. But the supreme power will continue to be exercised by the chairperson.
Other members include chairman of the Block Development Councils, Town Area Committees and Municipal Council in the district, MLA’s and MP’s who would be ex-officio members of the District Board. Though they are elected, it is well known that voters often choose different parties at local, State and national levels as the issues are different at these levels. Members of the Assembly and Parliament, in their capacity as members of the district boards, cannot therefore be said to represent the wishes of the people. In many States where MLA’s and MP’s are members of the district boards, they have no voting rights. But under the J&K law, they shall have these rights also.
At the block, level also, unlike the Central law, the State Act does not provide for direct election of any member. It shall comprise sarpanches of halqa panchayats and chairman of the marketing society within the jurisdiction of the block. With the Block Development Officer, an ex-officio secretary, the block development council is also brought under the influence of the government. The government shall also have power to nominate two members to give representation each to women, scheduled caste or any other class. The Central Act provides for 33 per cent reservation for women and, according to the population ratio, for the Schedule Castes, but it does not, provide for any nomination at any level. The State law provides for nomination but not reservation. Further the term other class is so vague that it can be used by the State Government to nominate any person on the block council to represent it. The nominations can always ensure majority for the ruling party.
It is only at the halqa panchayat level were all members shall be directly elected. But even at this level, a government employee, i.e., the village level worker, shall be the member secretary who shall thus ensure government presence at the base of the panchayati raj system. Moreover, the government shall have the power to nominate two members on the halqa panchayat on the same pattern as it does on the block council.
One more flaw in the State law with regard to the functions of the halqa panchayat is that its members have not been made accountable to the people after they are elected. There is no provision for a gram sabha which could act as a sort of assembly for the panachyat and could meet once or twice a year to pass the budget and to exercise some control on the working of the panchayat, including the right to pass a vote of no confidence against the members and elect new members in their place.
A pre-requisite of the success of the panchayati ran system is its financial viability and autonomy. The 73rd Amendment to the Constitution also provides for appointment of a Finance Commission by the State Governments to make recommendations for a) determination of the taxes, duties, tolls and fees which may be assigned to panchayats, b) distribution between the State and panchayats of the net proceeds of taxes, duties, etc; c) grant-in-aid to the panchayats by the States.
J&K law neither fixes minimum amount of grant-in-aid by the State to the panchayats for providing nor autonomous machinery for objective allocation of funds. It has no assured source of income, either. The law, therefore, does not ensure financial viability and autonomy of the panchayats and leaves enough financial power in the hands of he State government which it could use arbitrarily to influence the working of the panchayats.
Panchayat adalat is another important feature of the new panchayati raj law of the State. For the modern system of justice is not only very expensive and time consuming, but is also virtually inaccessible to most of the rural and far-off areas. Panchayati adalats have been used in many states to supplement the formal judicial system by reviving and legitimizing the traditional system of justice.
But by empowering the State government to nominate members of the panchayati adalat, and to remove its chairman or any member, the new law robs independence of the institution of justice at the grass roots level. It amounts to supplementing the judicial system and the traditional system of justice, both supposed to be independent of the executive, by a third sector of justice controlled by the State Government.
Jammu and Kashmir Panchayati Raj Act does not accept the jurisdiction of the Union Election Commission “for superintendence, direction and control of the conduct of elections in the State” nor that of the Comptroller and Auditor General (CAG) of India “for the audit of the accounts of the panchayats” as the 73rd Amendment to the Constitution proposes to do for other States.
The State is not only independent of the federal autonomous institutions like the Election Commission and CAG, it has also not made any Amendment in its own Constitution corresponding to the Amendment in the Indian Constitution. Such an Amendment would not have compromised autonomy of the State, but would have projected the interests of the panchayati institutions against bureaucratic encroachments by, say, making re-election of superseded panchayats constitutionally mandatory and reserving a list of subjects in the constitution for exclusive management by the panchayats. J&K State needs genuine panchayat raj, more than any other state. For its much more diversities than others. In view of its multi-ethnic and multi-religious character, the panchayati raj is not only is a means for devolution of power and participatory democracy but also is vital instrument of accommodating its wide diversities. Panchayati raj implies a federal continuum through which power devolves form Centre to State and then to District, Block and Villages. In the case of J&K, regional tier is an indispensable part of the federal continuum.
Lack of trust in the people seems to be the only plausible explanation for the type of law the State has passed. Which is more an instrument of regimentation and centralization than empowerment of the people.