73rd Constitution Amendment in Jammu & Kashmir

73rd Constitution Amendment: A Case study of Jammu & Kashmir

When the panchayat raj is established, public opinion will do what violence can never do: Mahatma Gandhi

73rd Constitution Amendment

It is recognized today across the countries that how much, the concept of Local self Governance holds importance in the development of any state or region. In fact, the very model of representative democracy i.e Governance of the people, by the people and for the people, rests upon the notion of self-governance to a large extent. India is no exception to this model, as ancient Indian scriptures as Rigveda and Dharmasastra refer extensively to administration by local people. Conforming to this Framers of Constitution of India gave mandate through Directive Principles of State Policy under Article 40, which says that the “The State shall take steps to organize village Panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government”. Thus to strengthen the Panchayat system by giving it a Constitutional base, an amendment was done in Indian Constitution in the year 1992 i.e 73rd Constitution Amendment, which provides a three-tier system of Panchayati Raj in India. Through this amendment Part IX containing Article 243 – 243O has been added to the Constitution of India along with insertion of a new Schedule i.e 11th Schedule encompassing 29 functional areas like Rural housing, Drinking water, Education and others.

History of Panchayati Raj in Jammu Kashmir

In the State of Jammu- Kashmir, the history of Panchayati Raj can be traced to the period of Maharaja Hari Singh, whose tenure is viewed by authors as progressive and welfarist. As in 1935, it was Maharaja Hari Singh, who set the understructure by the promulgation of the Jammu and Kashmir Village Panchayat Regulation No. 1. He also created a special Department of Panchayats and Rural Development in 1936. In the year 1941, an amendment to Panchayat Regulation increased the jurisdiction of Panchayat. The purpose behind the promulgation of this Act was not only to promote awareness about Panchayati Raj in the state but also to use panchayats as an extended arm of the government for discharging the judicial and civil duties. Thus, Maharaja Hari Singh took a step in the direction of Gram Swarajya envisioned by Mahatma Gandhi.

Application of 73rd Amendment: A Sadistic Approach

The amendment finds increasing accord in the people of the State but the Government of J&K has expressly rejected 73rd Constitution Amendment by taking a convenient refuge of Article 370. State of Jammu Kashmir, in a race to keep its identity different from rest of the States in India has played a Cruel Joke with its people by not adopting the 73rd Constitution Amendment. Time and again Jammu Kashmir Rural Development Ministry’s Stand has brought to light the fact that government doesn’t want to decentralize the power at grass root level.

There is a patent reservation in implementing the 73rd Amendment as political parties in J&K clearly know that if they would give more powers to Panchayats as incorporating all the features of the 73rd amendment, it would make them independent with respect to planning and execution of development works and utilisation of funds.

Since 1990s terrorists and separatists in State have tried to muzzle the voice of village communities by continuous killing of Panch and Sarpanch, thereby creating an environment of fear and panic. But the resilience and gutsiness of the common villager has plausibly unnerved and ruffled the militant ideology in state.

Over a period of time, law and order situation has progressed and people in the state are more than ready to welcome the change conceptualized by 73rd amendment in overhauling the existing system of Panchayats. But, whenever an atmosphere of Panchayat elections develop in the state, executive fails to provide adequate security cover to nominated panch and sarpanch even when they complained to authorities in writing of getting threat calls from terrorists.

Why J&K need 73rd Amendment

Currently, in the State of Jammu Kashmir, Panchayati Raj Act, 1989 is in force. This Act is nothing but a mere protraction of 1935 regulation of Maharaja’s time, which has become redundant with the passage of time and unable to fulfill the current developmental needs of people of J&k.

The present situation vigorously demands 73rd Constitution Amendment which is broad and comprehensive in its sphere and effect.

While examining the State’s Panchayati Raj Act, 1989 keeping the 73rd Amendment in the backdrop, it emerges clearly that the former act is an extremely weak act, suiting to the needs of vested interest sitting in bureaucracy.

On reading the State’s panchayat act together with 73rd amendment, one just assumes that can be validly drawn up is that 73rd amendment has an actual advantage for being coming into force after the State’s Act, 1989 as it is understood that statute drafted later in time covers the dynamic needs of society.

1989 Act, doesn’t give a go ahead and empower the village people of the state in a way that was envisioned by Mahatma Gandhi.

Rural Development Department is given the additional burden of execution and implementation of all the activities of Panchayats as the State of J&K has no separate Panchayati Raj Department for carrying out functions of Panchayati Raj Institution,

Existing representative members in Panchayat are being reduced to a mere rubber stamp by the affirmative rejection of decentralization of powers by the authorities in the state.

Moreover, provisions incorporated in the State Act do not impose an accountability and obligation upon the state government to mandatorily hold the elections to panchayat in time bound manner due to which State is losing grant of funds worth crores of rupees due to its inability of conducting panchayat elections on time. The state has lost Rs. 229.17 crore awarded to it by 12th Finance Commission. Fear of losing Rs. 5480 Crores assigned by 14th Finance Commission to the State for decentralized democratic framework also drooping over the State departments.

Few Pitfalls of State’s Panchayati Raj Act, 1989 are enumerated below:

• On August 27, 2009, the Union Cabinet of the Government of India approved 50% reservation for women in PRIs but State of J&K still gives only 33% reservation to women.
•  The State act has no provision for holding elections for the selection of Chairman of District Planning and Development Board whereas 73rd amendment makes elections for the three tiers mandatory.
• State act has no provision for constitution of independent State Finance Commission (SFC), unlike the 73rd Amendment.
• JK Government has the powers to remove chairperson and members of Panchayati Adalat under 1989 act. However, if the 73rd amendment provisions are incorporated, government losses these powers.
• State act also does not provide for independent Zilla Panchayat.
• There is no reservation for Schedule Castes/Schedule Tribes and Women for the offices of chairperson in the Panchayats as prescribed under the central legislation.
• There is no independent State Election Commission for conducting elections to Panchayats and local bodies.

Conclusion:

An exercise of creating a false perception about trouble in the state is going on from a long time through media houses, literature and academic activities by vested interests that the whole state of J&K is gripped in violence, fear and tension due to terrorist activites in state at large scale. But reality, of normal living conditions in the state barring four or five distrits comes out when a person visits the state or meets the people belonging to the state of J&K.

Game of perception war is the latest in trend in J&K. A handful of people in state incite the innocent youth to pick up the Arms against the system. On the other side is the victim population of state, which is determined to fight against terrorism and stand with the nationalist forces of India, thereby giving a befitting reply to the terrorists and separatist class by zealously participating in the election process of the State.

Villagers in the State are still hopeful that State Government will give them the rights as are being given to their counterparts in other parts of India whether it is Gujarat, Haryana or Punjab State. Now it is upto the State that how it could materialize the wishes of people by adopting the 73rd Constitution Amendment of India.

The author can also be reached at jamtanip@gmail.com