Political Philosophy
May, by Law, Endow: The Tier of Government the Constitution Constitutes Without Empowering
4 October 2026 · 18 min read
The Constitution distributes legislative power in one place and in one way. Article 246 gives Parliament exclusive power over the matters in the Union List, gives the Legislature of any State exclusive power over the matters in the State List, and gives both power over the Concurrent List. Everything else in the document about who may legislate on what is a qualification of that distribution. Parts IX and IXA, inserted by the Seventy-third and Seventy-fourth Amendment Acts of 1992, create a level of government in every State, and they do not appear in that distribution at all.
That is not for want of detail. The two Parts run to thirty-four articles between them — sixteen in Part IX, eighteen in Part IXA — and they are unusually specific. They fix the levels at which Panchayats must exist, the method by which their seats must be filled, the fractions of those seats that must be reserved, the maximum duration of each body, the outer limit for completing the next election, the authority in which the conduct of those elections must vest, and the terms on which that authority's head may be removed. What they do not fix — anywhere, in either Part — is what a Panchayat or a Municipality is entitled to do.
The words that moved from Part IV to Part IX
Article 40 has stood in Part IV since 1950. "The State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government."
Article 243G, inserted in 1992, reads: "Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow the Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats at the appropriate level, subject to such conditions as may be specified therein, with respect to— (a) the preparation of plans for economic development and social justice; (b) the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule."
The clause doing the work in each is the same clause: endow them with such powers and authority as may be necessary to enable them to function as units, or institutions, of self-government. The word "endow" appears five times in the Constitution. Twice it is part of "endowment" — in Article 28(2), on educational institutions administered by the State but established under an endowment or trust requiring religious instruction, and in Entry 28 of the Concurrent List, on charitable and religious endowments. As a verb it appears three times, and the three are Article 40, Article 243G, and Article 243W, which repeats Article 243G for Municipalities. The 1992 amendments did not invent a formula for empowering local bodies. They lifted the formula out of the directive principle and placed it in a Part of the Constitution that a court can enforce.
And in the lifting, the modal verb changed. Article 40 says the State "shall take steps to organise village panchayats and endow them". Article 243G says the Legislature of a State "may, by law, endow the Panchayats". Article 37 provides that the provisions of Part IV "shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws." Article 40 therefore imposes a duty that no court may enforce. Article 243G, which sits in an enforceable Part, imposes no duty at all.
The noun changed too. Article 40 speaks of "units of self-government"; Article 243G of "institutions of self-government". Article 243(d) defines a Panchayat as "an institution (by whatever name called) of self-government constituted under article 243B, for the rural areas". A unit is a component of something larger; an institution is a body with a standing of its own. The substitution reads as a promotion, and on the question of powers it travels with a demotion.
What the Part makes compulsory
It would be wrong to describe Parts IX and IXA as merely permissive. The word "shall" appears fifty times in each, and a great many of those uses bind the State.
Article 243B(1): "There shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of this Part", with clause (2) excusing the intermediate level in a State whose population does not exceed twenty lakhs. Article 243Q(1) does the corresponding work for urban areas, requiring a Nagar Panchayat for a transitional area, a Municipal Council for a smaller urban area and a Municipal Corporation for a larger urban area.
Article 243C(2): "All the seats in a Panchayat shall be filled by persons chosen by direct election from territorial constituencies in the Panchayat area", the ratio between the population of each constituency and the seats allotted to it to be the same throughout the Panchayat area so far as practicable. No nominated Panchayat is available to a State.
Article 243D(1) requires seats to be reserved in every Panchayat for the Scheduled Castes and the Scheduled Tribes in proportion to their population in the Panchayat area. Clause (2) reserves not less than one-third of those seats for women of those communities, and clause (3) reserves for women not less than one-third of all the seats to be filled by direct election. The second proviso to clause (4) reserves not less than one-third of the offices of Chairperson at each level for women. Article 243T carries clauses (1) to (3) into Part IXA in almost identical words, though its clause (4) differs: the offices of Chairpersons in the Municipalities "shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide", and no proviso fixes a fraction. These are among the few numerical guarantees in the Constitution, and they operate on an institution the Constitution does not otherwise empower.
Article 243E(1): "Every Panchayat, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer." Clause (2) adds a genuine protection: "No amendment of any law for the time being in force shall have the effect of causing dissolution of a Panchayat at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in clause (1)." Clause (3) requires the election constituting a Panchayat to be completed before the expiry of that duration, or within six months of a dissolution, with a proviso excusing the election where less than six months of the dissolved body's term remained.
Article 243K(1) vests the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all Panchayat elections in a State Election Commission consisting of a State Election Commissioner appointed by the Governor. The proviso to clause (2) protects that officer: he "shall not be removed from his office except in like manner and on the like grounds as a Judge of a High Court", and his conditions of service shall not be varied to his disadvantage after appointment. Article 243ZA(1) does not create a second body; it vests the conduct of all municipal elections in "the State Election Commission referred to in article 243K". One constitutional officer, protected like a High Court Judge, conducts the elections of both tiers.
Article 243-I(1) requires the Governor to constitute a Finance Commission at the expiration of every fifth year to review the financial position of the Panchayats, and Article 243Y(1) requires the same Commission to review the financial position of the Municipalities. Article 243ZD(1) requires that "There shall be constituted in every State at the district level a District Planning Committee". Article 243S(1) requires Wards Committees within the territorial area of every Municipality having a population of three lakhs or more.
Taken together, these provisions settle that the institution will exist, that it will be elected and not appointed, that a stated share of its seats will be held by groups the Constitution names, that it will be replaced on time, and that the officer conducting its elections will be as hard to remove as a Judge of a High Court. That is a considerable body of constitutional law about an institution's form.
Where the word "shall" does not appear
Set against that, the distribution of the fifty mandatory clauses within Part IX is worth reading as a map. They fall in Article 243B (the constitution of Panchayats), 243C (composition), 243D (reservation), 243E (duration), 243F (disqualifications), 243-I (the Finance Commission), 243K (elections), and in the four closing articles on Union territories, excluded areas, existing laws and the bar on judicial interference in electoral matters.
Nine of the thirty-four articles contain no occurrence of the word "shall" at all. Two are the definition articles, 243 and 243P. One is Article 243A, which leaves the powers and functions of the Gram Sabha to State law in a single sentence. The remaining six are three matched pairs, and they are the three subjects that decide what a local body can do: Articles 243G and 243W, powers, authority and responsibilities; Articles 243H and 243X, the power to impose taxes and the Funds of the bodies; and Articles 243J and 243Z, the audit of their accounts.
What the two Parts say in the mandatory voice is that these bodies must exist, must be elected, and must be reconstituted on time. What they say about powers, money and accounting, they say in the permissive voice, without exception.
What is left to the State Legislature
The phrase "the Legislature of a State may, by law" occurs eleven times in Part IX and ten times in Part IXA. In Part IX it governs the powers and functions of the Gram Sabha (Article 243A), the composition of Panchayats (243C(1)), the representation of chairpersons and of legislators in higher-level Panchayats (243C(3)), the manner of electing the Chairperson at village level (243C(5)(a)), the manner of reserving chairperson offices (243D(4)), the forum that decides a question of disqualification (243F(2)), the powers and authority of the Panchayats themselves (243G), their power to tax and the Funds credited to them (243H), the composition and qualifications of the State Finance Commission (243-I(2)), the maintenance and audit of Panchayat accounts (243J), and all matters relating to Panchayat elections (243K(4)). A twelfth clause, Article 243-I(3), leaves the powers of the State Finance Commission to such law as "the Legislature of the State may, by law, confer on them".
Three of them — Articles 243G, 243H and 243J — decide whether a Panchayat is a government or a committee, and each is permissive throughout.
Article 243G, set out above, is enabling in form throughout. The State Legislature may endow; the law it makes may contain provisions for devolution; the devolution may be subject to such conditions as may be specified therein. Three permissive verbs in one sentence.
Article 243H: "The Legislature of a State may, by law,— (a) authorise a Panchayat to levy, collect and appropriate such taxes, duties, tolls and fees in accordance with such procedure and subject to such limits; (b) assign to a Panchayat such taxes, duties, tolls and fees levied and collected by the State Government for such purposes and subject to such conditions and limits; (c) provide for making such grants-in-aid to the Panchayats from the Consolidated Fund of the State; and (d) provide for constitution of such Funds for crediting all moneys received, respectively, by or on behalf of the Panchayats and also for the withdrawal of such moneys therefrom, as may be specified in the law." Every route by which money can reach a Panchayat — its own taxes, assigned taxes, grants-in-aid, and even the existence of a fund to hold them — runs through a law the State Legislature may decline to make. Article 243X is the same provision for Municipalities, with the nouns changed.
Article 243J leaves the maintenance and audit of accounts to State law as well, so the obligation to account for whatever money does arrive is optional in the same way.
The Eleventh and Twelfth Schedules are the lists most often associated with the 1992 amendments — twenty-nine matters for Panchayats, running from agriculture and minor irrigation through drinking water, rural electrification, primary and secondary schools and health and sanitation to the maintenance of community assets; eighteen for Municipalities, from urban planning and the regulation of land-use through water supply, solid waste management, fire services and slum improvement to the regulation of slaughter houses. Neither Schedule contains an operative word. The Eleventh is headed "(Article 243G)" and the Twelfth "(Article 243W)", and each is reached only through the clause in its parent article providing that a law endowing the bodies "may contain provisions for the devolution of powers and responsibilities" with respect to, among other things, schemes relating to the matters listed in the Schedule. They are a menu attached to a power that need not be exercised. The contrast with the Seventh Schedule is exact: those three Lists are the operative content of Article 246, and a State Legislature's competence is measured by them. The Eleventh and Twelfth Schedules measure nothing by themselves.
Entry 5 of the State List
The reason the two Parts do not distribute power is that the subject they concern had already been distributed, and was left where it lay. Entry 5 of the State List reads: "Local government, that is to say, the constitution and powers of municipal corporations, improvement trusts, districts boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration."
Local government is a State subject, and the words of the entry include "the constitution and powers" of local authorities. Parts IX and IXA constrain how a State Legislature exercises that entry — it must constitute the bodies, have them elected, reserve the seats, complete the elections on time. They do not withdraw any part of the subject from it. A Panchayat has no legislative field of its own and no entry in any List. It has the powers a State statute gives it, and it holds them on the terms that statute specifies.
The consequence is a durable asymmetry. A State Legislature that has devolved most of the Eleventh Schedule on its Panchayats may withdraw as much of it as it pleases at the next session by an ordinary amendment of the State enactment, and nothing in the Constitution is touched, because nothing in the Constitution conferred it. The same Legislature cannot postpone a Panchayat election by six months, because Article 243E says it may not. The form of local self-government is entrenched against the State. Its substance is held at the State's pleasure.
The money, at two removes
Finance follows the same pattern, with one addition. The Seventy-third and Seventy-fourth Amendments did not only insert the two Parts; they also inserted sub-clauses into Article 280(3), which lists the duties of the Union Finance Commission, re-lettering the existing residual clause (c) as (d) to make room. Clause (bb), inserted with Part IX, makes it the Commission's duty to recommend "the measures needed to augment the Consolidated Fund of a State to supplement the resources of the Panchayats in the State on the basis of the recommendations made by the Finance Commission of the State". Clause (c), inserted with Part IXA later the same year, says the same for Municipalities.
Read closely, that is a recommendation about a recommendation. The Union Commission advises on measures to augment a State's own Consolidated Fund, so that the State may supplement the resources of its local bodies, on the basis of what the State Finance Commission has advised. The local tier is reached at two removes, and at neither remove is anyone obliged to act.
Nor does the State Finance Commission bind. Article 243-I(4) requires the Governor to cause every recommendation of that Commission, together with an explanatory memorandum as to the action taken on it, to be laid before the State Legislature. Article 243Y(2) says the same for its recommendations on Municipalities. In fairness, this is the Constitution's standard formula and not a weakness devised for the third tier: Article 281 requires the President to cause every recommendation of the Union Finance Commission, with the same explanatory memorandum, to be laid before each House of Parliament, and requires no more. What distinguishes the local case is not the formula but what lies beneath it. A State has Article 246(3) whatever any Finance Commission says. A Panchayat has Article 243H, which is a permission addressed to somebody else.
What the courts have been able to enforce
The division between a mandatory form and an optional substance shows up in the litigation. In Kishansing Tomar v. Municipal Corporation of the City of Ahmedabad, (2006) 8 SCC 352, decided on 19 October 2006, the Supreme Court considered the five-year duration of a Municipality under Article 243U. Balakrishnan J., delivering the judgment, held that "the period of five years fixed thereunder to constitute the Municipality is mandatory in nature and has to be followed in all respects", subject only to the express exception where less than six months of a dissolved body's term remained. The Court read Articles 243K and 243ZA(1) as placing in a State Election Commission the same powers that Article 324 places in the Election Commission of India, the words of the former being "in pari materia" with the latter, and held that State Election Commissions "are to function independent of the concerned State Governments" in the matter of superintendence, direction and control of elections and the preparation of electoral rolls. Where a State Government withholds cooperation, the Court said, it is open to the State Election Commission to approach the High Court, and thereafter the Supreme Court, for a writ of mandamus directing the State to provide it. The Court allowed that man-made calamities such as rioting or a breakdown of law and order, or natural calamities, may distract the authorities, but treated these as exceptional circumstances that must not become a regular feature extending a Municipality's duration.
That is a strong decision, and it is a decision about the half of the Part that is written in "shall". The obligation to complete the election on time was enforceable because Article 243U creates it in terms. On the other half the position is different, and the difference is textual rather than a matter of judicial reluctance. Article 243G creates no duty to endow, and so confers no correlative right that a Panchayat could ask a court to enforce under it. A Panchayat complaining that it has been given an election but no function is not complaining of a breach of Part IX. It is complaining that a power the Constitution left with the State Legislature has not been exercised in its favour — which is the complaint Article 40 described in 1950, and which Article 37 made unenforceable.
What could have been written instead
It is no answer to say that the detail of local government must be left to statute. Of course it must. The number of wards in a municipal corporation, the qualifications of its officers, the procedure for its budget and the rates of its taxes are matters for a State enactment, and a constitution that attempted them would be unusable.
But the alternative to leaving everything to the State Legislature was not to leave nothing. A constitution can fix a minimum field and leave its administration to statute. It can name a small number of subjects — local sanitation, local roads, drinking water, a local rate — and provide that a law of the State shall confer them, leaving the extent, the procedure and the limits to that law. It can make a devolution, once made, hard to reverse, and the Constitution already has the device: Article 169(1) allows Parliament to abolish a State Legislative Council only if the Legislative Assembly has first resolved on it by a majority of its total membership and by a majority of not less than two-thirds of the members present and voting. It can protect a function the way Article 243E(2) already protects a term of office, by providing that no amendment of a State law shall take from a functioning body what has already been conferred on it. Each of those devices is in the Constitution. None of them was used for the powers of a Panchayat.
What was used instead is the drafting the Constitution employs when it means to create an institution without committing itself to the institution's powers. The two Parts say that the body shall exist, that it shall be elected, that a third of its seats shall be held by women, that it shall be reconstituted on time, and that the officer who conducts its elections shall be as hard to remove as a Judge of a High Court. On the question of what the body is for, it hands the pen to the Legislature it has just constrained, in the words Article 40 had been using since 1950, with the verb changed from shall to may.
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.