Eminent political scientists of the last century such as Harold Laski have pointed out emphatically that the existence of a decentralized State is important for realization of rights. In the Indian context, can the reverse also be argued? I.e.- are rights important for the realization of a decentralized State?

The context for talk of 'rights' is provided by the fact that while there have been a number of laws passed by the State to achieve decentralized governance primarily through Panchayati Raj in India, the laws have for most part been mere paper tigers. The inadequacy in legislative drafting, reflecting a definite absence of a holistic legal vision for village India, has created an overcrowded regime of Paper laws for Panchayats. The laws need to respond to the spirit of the 73rd Amendment. If the laws are not taken to their logical end, through enabling rules and orders, they would remain paper tigers. If the States don’t do it on their own, they could be forced to do so.

Those last words are important - the State could be forced to come up with enabling rules and orders. This has indeed begun to happen through the instrument of Public Interest Litigation. Earlier this year showing unhappiness with the insufficient details about devolution of powers, functions and finances to the Panchayati Raj institutions in the State of Bihar, the Patna High Court held that it was State Government’s constitutional duty to come up before the Court with complete records. The division bench remarked that if the Government does not devolve powers to the Panchyats in accordance with the constitutional scheme, they would not hesitate to mention in their judgment that the State government was not capable of acting on constitutional provisions on the Panchayats.

In fact in all such PILs rights would be invoked and corresponding constitutional duty of the State government would be emphasized for the purpose of achieving decentralized local self governance. Anyone who knows the way PIL works in India should not find it difficult to accept that the drafting is centered on invoking the rights - more precisely the fundamental rights - so much so that Public Interest Litigation should be more appropriately called the Public Rights Litigation! In such cases while there would rights (used) for decentralized governance, there would still not be a direct right to self-governance that would come into play. This is however a critical area of further enquiry.

Is it possible to assert a right to local self-governance?. The directive principles of State policy, the local Panchayat acts, and now the 73rd amendment make it inescapably clear that the State has been under a continuous duty to make Panchayats institutions of local self-government. The corresponding right against this duty of state has to necessarily rest with the people. The duty has been a constitutional obligation and the constitution derives its authority from the people. In jural terms this reasoning has to be at the core of invocation of any such right of local self-governance in India.

It is possible to look for parallels to such a right in international law. It has been argued that democracy itself is on the way to becoming a global entitlement and that this ‘democratic entitlement’ is gradually being transformed from a moral prescription to international legal obligation.” However it would not be prudent to base the right to local self-governance in India on the emerging international law and jurisprudence. The right has to derive its support – both principally and pragmatically – from the specific Indian context ad from the legal history of local self-governance in the country. A history that would establish a continuous duty of the State government while recording largely the failure of the government to honour this duty. A legal history that now demands a remedy in law. And a remedy that can be provided by invoking the rights while hoping that this would lead to a 'Rights with Remedies' regime and not a regime of rights without recourse to obtaining them.

However the usefulness of rights for local self-government is not something that can go down well with many people. Mahatma Gandhi based his idea of decentralized governance in India, on duties, not rights. As he said "Swaraj of a people means the sum-total of swaraj of individuals. And such Swaraj comes only from performance by individuals of their duty as citizens. In it no one thinks of his rights”. However, two important things need to be pointed out when one looks at this Gandhian view. One the Mahatma never felt the need to talk about rights because his system was built on the base provided by a duty conscious individual whose self-control and willful obedience was the key to self-government.To him a collective of born democrats would automatically ensure local self-government.

Suffice it to say here that if such self-discipline and self-control were found in everyone there would have been no need to talk about law and about rights. Besides, Gandhiji talked about duties, and let's remember that in jurisprudence every duty has to have a correlative right. First as a national Directive Principle of State Policy, then as a statutory obligation and now as a Constitutional requirement, the State has been under a continuous duty “to endow Panchayats with such powers and authority as to enable them to function as institutions of self-government. If this has been the duty of the state, then who holds the corresponding right?