Constitutional Amendment Act and Municipal Acts

Constitutional Amendment Act and municipalities

Introduction

Cities small or large are important for our economy. They are at the forefront of our country. They provide education and employment opportunities, and they act as hubs of new ideas. The lives of urban Indians are enmeshed with the cities they live in, and yet, we are so under-informed when it comes to the governing structures that ensure their smooth functioning.[1]

Municipal acts are important because they provide local governments with the guiding tools to administer and run the cities. India has 69 different municipal acts in implementation presently across the country. The municipal government is a formal part of a three-tier government along with union government and state governments.[2]

What are municipal Acts?

Municipal Acts are legislations brought about by state governments to establish municipal governments, administer them, and provide a framework of governance for cities within the state.[3] Various processes including rules for elections, recruitment of staff, and demarcation of urban areas derived from the state municipal acts[4]. There are large variances between states when it comes to number of acts and the years they were introduced.

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What is 74th Constitutional Amendment Act?

The legislation that governs the urban local governance in India; CAA.  Through the 74th amendment act, parliament added part IXA to the constitution in the year 1992. The act was enacted in 1993, recognized municipal acts. The act mandated state governments to set up municipalities in urban areas, through their respective municipalities. [5]

Prior to CAA, the municipalities lacked constitutional recognition. As urban areas are part of state government as per the seventh schedule, the state government had control over local government. Lack of recognition meant that the states were not mandated to set up city governments while there existed the mandate to constitute panchayats. This resulted in erratic or no elections in the cities for municipal governments. Before CAA rural areas were given more importance by the union government as half of the Indian population resided there but in 1951, the urban areas constituted 17.3% of the total population of India, which grew to 25.7% in 1991[6]. This increase in urban population underlined the need for more empowered urban local governments. This led to the 74th amendment.[7]

According to CAA urban areas governed by three types of urban local government is[8];

  1. Nagar panchayat – To administer areas in transition from rural to urban areas
  1. Municipal council – To administer small urban areas
  2. Municipal corporation – For large urban areas

To differentiation and to be defined as ‘transitional’, ‘smaller urban areas, and ‘larger urban areas were to be specified by the State Governors by looking at the following criteria:[9]

  1. The population of the area,
  2. The density of the population therein,
  3. The revenue generated for local administration,
  4. The percentage of employment in non-agricultural activities,
  5. The economic importance or
  6. Such other factor.

CAA introduced major changes for municipal governments[10]

  1. The 74th CAA improved and established a clear relationship between state and municipal governments.
  2. The CAA provided the broad 18 functions broad categories of functions, listed in Schedule 12 (annex 1), to be devolved to the municipal governments by the state governments. Although it was left to the state government to devolve functions as they deemed fit.

Some of the functions are-

  1. Urban planning including town planning.
  2. Regulation of land use and construction of buildings.
  3. Planning for economic and social development.
  4. Roads and bridges. Water supply for domestic,
  5. industrial and commercial purposes.
  6. Public health,
  7. sanitation conservancy and
  8. solid waste management,
  9. Fire services.
  10. Urban forestry,
  11. protection of the environment and
  12. promotion of ecological aspects.
  13. Safeguarding the interests of weaker sections of society, including the handicapped and mentally retarded.
  14. Slum improvement and up-gradation.
  15. Urban poverty alleviation.
  16. Provision of urban amenities and facilities such as parks, gardens, playgrounds.
  17. Promotion of cultural,
  18. Educational and aesthetic aspects.
  19. Burials and burial grounds, cremations, cremation grounds, and electric crematoriums,
  20. Cattle ponds;
  21. Prevention of cruelty to animals.
  22. Vital statistics including registration of births and deaths.
  23. Public amenities including street lighting,
  24. Parking lots,
  25. Bus stops and public conveniences.
  26. Regulation of slaughterhouses and tanneries

All of these functions are allotted by state governments to municipal governments depending on what they (state government) deem fit.

For example, their few municipalities that are allotted fire services.  Not all states entrusted all the functions some also added further functions and allotted.

  1. In terms of funds, the act mandated state finance commission and made them responsible to monitor finances of
  2. Functionaries include engineers, architects, health inspectors, tax collectors among others.
  3. Regular elections of municipalities is been ensured by the state election commission.
  4. Representation of weaker sections that are providing reservation in the election. The Act leaves further powers with the state governments to reserve more seats as per their discretion.
  5. Creation of ward committee (WCs) for municipalities having more than 3 lakh population or 3 lakh. Ward committee (WCs) provides for continued people’s participation even after the elections. The state government has the power to decide upon the composition of the WCs and the territorial jurisdiction, as well as the manner in which the WC seats are to be filled, but the local councilors are mandated members of the Committees.
  6. Duration of municipalities – Every Municipality unless sooner dissolved under any law for (lie time being in force, shall continue for five years from the date appointed for its first meeting and no longer provided that a municipality shall be given a reasonable opportunity of being heard before its dissolution.[11]
  7. Disqualification of members of municipalities – If he or she is disqualified by or under any law for the time being in force for the purposes of elections to the legislature of the state concerned. No person shall be disqualified on the ground that he is less than twenty-five years of age if he has attained the age of twenty-one years.
  1. Committee for District Planning shall be constituted at the district planning committee to consolidate the plans prepared by the panchayats and municipalities in the district and to prepare a draft development plan for the district as a whole.
  2. Committee for Metropolitan Planning shall be constituted in every metropolitan area a metropolitan planning committee prepares a draft development plan for the metropolitan areas as a whole. [12]

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Courts interference in the electoral matter

The validity of any law relating to delimitation as well as allotment of seats in constituencies, made or purporting to be made under Article 243-ZA shall not be called in question.

No election of a municipality can be questioned except by an election petition presented to such authority by or under law made by the legislature of a state.[13]

Cases concerning municipalities

In the case of, Kishansing Tomar v. Municipal Corporation of the city of Ahmedabad[14] the court has unanimously held that the life of a municipality has been fixed for 5 years and the election of the municipality must be held before the expiration of the 5 years term under Article 243-U. The court also observed that conditions are strict and must be observed.

Municipal Council, Ratlam v. Shri Vardhichand & Others, 1980[15]

The fact of the case- the residents of Ratlam frustrated at the sanitary facility and the contamination in the streets brought suit against Municipality under section 133 CPC for public nuisance.

The Supreme Court in this case held that a responsible municipal council constituted for the precise purpose of preserving public health and providing better finances cannot run away from its principal duty by pleading financial inability. Decency and dignity are non-negotiable facets of human rights and are the first charge on local self-governing bodies.

Saraswati Devi v. Smt. Shanti Devi and Ors. 1997 [16]

The fact of the case- the appellant and respondent were both women of Scheduled Castes elected to the Municipal Committee in Loharu, Haryana. The appellant occupied the seat reserved for Scheduled Castes while the respondent was elected in an unreserved seat. The office of the President was to be, as per the State, filled by a Scheduled Caste person. Both the women wanted to contest for this post but while the appellant was allowed to, the respondent was not, as she did not occupy a reserved seat.

The court, in this case, observed that the respondent was elected as a member, not on a reserved seat but on the General category therefore she could not be included in the eligible schedule caste for presidentship.

Olga Tellis v. Bombay Municipal Corporation and Ors. 1985[17]

However, this case came before the CAA act was even drafted and implemented but it laid down a great precedent for Indian Municipalities and their development functions.

The fact of the case- the case came before the Court as a writ petition by pavement and slum dwellers in Bombay seeking to be allowed to stay on the pavements against their order of eviction during the monsoon months by the Bombay Municipal Corporation.

The Chief Justice of India Y.V Chandrachud delivered unanimous judgment by the 5 judge bench,

  • For the purposes of argument, we will assume the factual correctness of the premises that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which we have to consider is whether the right to life includes the right to livelihood, We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far-reaching. That, which alone makes it possible to live, leave aside what makes life liveable, must be deemed to be an integral component of the right to life.[18]
  • Two conclusions emerge from this discussion[19]: Firstly, that the right to life which is conferred by Article 21 includes the right to livelihood, and Secondly, that it is established that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. But the Constitution does not put an absolute embargo on the deprivation of life or personal liberty. By Article  21, such deprivation has to be according to the procedure established by law.
  • In order to minimize the hardship involved in any eviction, we direct that the slums, wherever situated, will not be removed until one month after the end of the current monsoon season.

Conclusion

Although, 74th constitution amendment act has granted sufficient autonomy to urban local government and those have been accorded constitutional status, they are not completely free from state government control. The urban local government or municipalities institutions work within the limits prescribed by the state Municipal Act which created and governs them., this, we can infer that “there is no one place or institution that holds all the control and power to administrate or govern the society or a country”.

While the union government seems to hold maximum power in a country like India, the democratic nature of our country does not formally allow for all the power to be contained within one institution that governs us. All these different parts come together to perform different tasks and aspects of governance. This coming together can also be de jure and de facto means of interaction.

 

-Shreya Patel 

(Writer & Senior member, The Legal State)

 

References:

[1] https://www.nagrika.org/nagrikalarticles/municipalacts

[2] Supra note 1

[3] https://www.government.nl/documents/regulations/2014/09/25/municipalities-act

[4]file:///C:/Users/admin/Downloads/JURISPRUDENCE/Nagrikal_Article4_Governance+Series.pdf

[5]file:///C:/Users/admin/Desktop/New_Article3_Governance+Series%20(1).pdf

[6] Supra note 5

.[7]file:///C:/Users/admin/Desktop/New_Article3_Governance+Series%20(1).pdf

[8] Supra note 7

[9] Supra note 7

[10] Supra note 7

[11]https://cbpbu.ac.in/userfiles/file/2020/STUDY_MAT/POL_SC/73rd%20and%2074th-converted.pdf

[12]Supra note 10

[13]https://www.advocatekhoj.com/library/bareacts/constitutionofindia/329.php?Title=Constitution%20of%20India,%201949&STitle=Bar%20to%20interference%20by%20courts%20in%20electoral%20matt

[14] V.N Shukla constitution of India pg. 764

[15] https://www.escr-net.org/caselaw/2019/muncipal-council-ratlam-v-shri-vardhichand-others-1980-air-1622-1981-scr-1-97#:~:text=This%20case%20concerns%20the%20Ratlam,from%20

[16] https://blog.ipleaders.in/panchayat-muncipality-society/#Saraswati_Devi_v_Smt_Shanti_Devi_and_Ors_1997

[17] livelaw (13 August 2015). “Re-reading ‘Olga Tellis v. Bombay Muncipal Corp’ as Petitioner completes 50”. Live Law. Retrieved 27 April 2016

[18] Supra note 16

[19] 10 judgments that changes India, chapter 4 pg. 81

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