Three decades and counting: Gujarat govt 'undermines' legal proviso for urban areas

By Krishakant Chauhan, Aseem Mishra*
Decentralization is an integral part of the democracy that signifies transfer of power from higher levels of government/institution to the lower-level government/institution. Therefore, 74th Constitution Amendment Act (CAA), 1992, was made with the objective of making urban local bodies (ULBs) empowered and self-governing institutions. The idea was to empower ULBs by giving powers to plan and manage infrastructure and basic services for the cities and towns with the engagement of citizens.
However, the state of Gujarat is still to enact community participation law for formation of Ward and Area committees as per the provisions of 74th CAA even after almost three decades of the enactment of the said act. A suggested bill – Model Nagar Raj Bill was proposed to be enacted by each state as part of Community Participation Law under Jawahar Lal Nehru Urban Renewal Mission (JNNURM).

The 74th CAA inserted schedule 12 (Article 243W) into the Constitution of India wherein 18 functions were to be transferred to Municipalities. The 18 functions included:

• Urban planning including town planning,  
• Regulation of land-use and construction of buildings.
• Planning for economic and social development. 
• Roads and bridges. 
• Water supply for domestic, industrial and commercial purposes. 
• Public health, sanitation conservancy and solid waste management. 
• Fire services. 
• Urban forestry, protection of the environment and promotion of ecological aspects. 
• Safeguarding the interests of weaker sections of society, including the handicapped and mentally retarded. 
• Slum improvement and upgradation. 
• Urban poverty alleviation. 
• Provision of urban amenities and facilities such as parks, gardens, playgrounds. 
• Promotion of cultural, educational and aesthetic aspects. 
• Burials and burial grounds; cremations, cremation grounds; and electric crematoriums. 
• Cattle pounds; prevention of cruelty to animals. 
• Vital statistics including registration of births and deaths. 
• Public amenities including street lighting, parking lots, bus stops and public conveniences. 
• Regulation of slaughter houses and tanneries.

However, the state government has still not transferred all these functions the ULBs and urban planning is performed by Development Authorities without any significant participation/inputs from the citizens. In the same way, Special Purpose Vehicles (SPVs) have been formed to plan and execute large scale development projects in our cities, eroding environment as well as affecting a large section of vulnerable communities. 
Section 243Y of the CAA suggests constitution of Finance Commission. The section reads as:
“243Y. Finance Commission.-- (1) The Finance Commission constituted under article 243-I shall also review the financial position of the Municipalities and make recommendations to the Governor as to -- 
(a) the principles which should govern -- 
(i) the distribution between the State and the Municipalities of the net proceeds of the taxes, duties, tolls and fees leviable by the State, which may be divided between them under this Part and the allocation between the Municipalities at all levels of their respective shares of such proceeds;
(ii) the determination of the taxes, duties, tolls and fees which may be assigned to, or appropriated by, the Municipalities;
(iii) the grants-in-aid to the Municipalities from the Consolidated Fund of the State;
(a) the measures needed to improve the financial position of the Municipalities;
(b) any other matter referred to the Finance Commission by the Governor in the interests of sound finance of the Municipalities.
(2) The Governor shall cause every recommendation made by the Commission under this article together with an explanatory memorandum as to the action taken thereon to be laid before the Legislature of the State.”
The website of Gujarat State Finance Commission is non-functional and the reports or ATR of the state finance commission is not in public domain. So the financial aspect relating to the ULBs remain uncertain and is influenced by the political whims.
While section 243S of the Constitution on composition of Wards Committees says that there shall be constituted Wards Committees, consisting of one or more wards, within the territorial area of a Municipality having a population of three lakhs or more, it does not limit the state from devolving the powers as mentioned in Schedule 12 to the ULBs.
The Gujarat state has chosen to limit the constitution of Ward Committees only to the eight municipal corporations in the state (Ahmedabad, Surat, Vadodara, Rajkot, Jamnagar, Bhavnagar,Junagadh and Gandhinagar) . The rules for ward committees were notified on June 22, 2007. The ward committees consist of councilors and municipal officials only, excluding citizens and civil society organizations (CSOs).
As per the Memorandum of Agreements (MoAs) signed between ULBs and the State government in 2006, it is mandatory to constitute Area Sabha in all Jawaharlal Nehru National Urban Renewal Mission (JNNURM) cities. The Gujarat government vide a resolution of Urban Development and Urban Housing Department dated 3-2-2012 resolved to constitute Area Sabhas -- which till date remains unimplemented.
It envisioned formation of three Area Sabhas in each election ward and eminent citizens including retired Government Officials, ex-councilors, teachers, NGOs, from literary and social fields, urban planners, architects, etc. as its members. Also it impresses to have sufficient representation of women and members of SC/ST. The area committee can have maximum 21 members.
Moreover, Area Sabha is meant to be an assembly of every voter of the contiguous polling booths notified as an 'Area' in a ward, but Gujarat has enacted that a few distinguished or chosen elite alone shall be members of the Area Sabha which is not in consonance with the recommendation of the Model Nagararaj Bill.
The role of citizens is minuscule in city planning and governance, and only a section of society is able to approach the system due to their status that has increased inequalities in the cities of Gujarat. In fact, democracy provides same opportunity to participate and express their desires, irrespective of caste, class and religion. However, centralization has increased in last few years.
The District Planning Committee and the Metropolitan Planning Committee constituted under Sections 243ZD and 243ZE were constituted after orders from Gujarat High Court. However, they remain non-functional and have literally no role in the District or Metropolitan planning process.

Karnataka has formed Ward Committees and Ward Disaster Management Cells in Bengaluru as a step towards participatory governance

Such is not a case in many of the states in India like Bihar, Karnataka, Manipur, etc. Many states have proactively understood and adopted the participatory way of governance through the implementation of 74th CAAs. A recent example of formation of Ward Disaster Management Committees in Karnataka is an encouraging endeavor in ensuring active citizen participation.
In order to comply provisions of 74th CAA, Karnataka government amended its Municipal Act and mandated provisions for constitution of ward and area committees in its cities. Karnataka Urban Development Department had issued rules for constitution of ward committees in 2016.
However, while Ward Committees were constituted in Bengaluru every now and then through citizen pressure or High Court orders since 1999, Ward Committees and Area Sabhas were ordered to be constituted in Mangaluru, after Karnataka High Court's intervention in response to a PIL filed by a few concerned citizens in 2019.
With this order, Ward Committees are being constituted in a city other than Bengaluru for the first time in 27 years. This order is now being used by citizens to extend it to all the other municipal corporations of Karnataka.
In April 2020, CIVIC Bengaluru wrote and e-mail to the Chief Justice of Karnataka High Court and urged to form Ward Disaster Management Cells (WDMCs) under the Ward Committees as per section 6(8) of the Ward Committee Rules. Consequently, the Chief Justice ordered Bruhat Bengaluru Mahanagar Palika (BBMP) to set up the WDMCs immediately. 

 The Zonal Commissioners were asked to issue circulars constituting the WDMCs in all wards and explaining their roles and responsibilities. So, BBMP had issued an office order and constituted WDMCs in all 198 wards of Bengaluru.
The current Covid-19 pandemic has also underlined the active participation of citizens in times of crisis or otherwise.It is high time that the citizens participation is recognized and ensured in practice. This would empower effective implementation of Government schemes and also act as a mechanism to receive feedback/suggestions from citizens.
A group of civil society organisations (CSOs) from Gujarat have come together under the banner of ‘My City Our City’ (MCOC) to rigorously organize and campaign for participatory governance mechanisms in the cities of Gujarat. And propagate relevance of democracy, 74th CAA and community participation law with ULBs, councilors, youth, academicians and citizens.
The New Year 2021 resolution of the MCOC team is one of hope. A step towards informed and active citizens and inclusive cities, enabling the democratic values and systems in the country.
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*On behalf of My City Our City, consisting of CSOs Saath, Sadbhavna Sangh, Setu and HDRC St Xavier’s Non-Formal Education Society