MAINS 2021

POLITY & GOVERNANCE

Theme 2
PAST YEAR PAPER ANALYSIS (2013-2020)
Atish Mathur: MATHUR10

www.atishmathur.com
telegram: https://t.me/csepaper2atish
 POLITY
S.no. Theme
1 Indian Constitution—Historical Underpinnings, Evolution, Features, Amendments, Significant
Provisions and BasicStructure
2 Functions and Responsibilities of the Union and the States,Issues and Challenges Pertaining to the Federal
Structure,Devolution of Powers and Finances up to Local Levels and Challenges Therein.

3 Separation of Powers between various organs Dispute Redressal Mechanisms and Institutions.

4 Comparison of the Indian Constitutional Scheme with that of Other Countries.

5 Parliament and State Legislatures—Structure,Functioning, Conduct of Business, Powers & Privileges and
Issues Arising out of these.
6 Structure, Organization and Functioning of the Executive and the Judiciary—Ministries and
Departments of theGovernment
7 Salient Features of the Representation of People’s Act.
8 Appointment to various Constitutional Posts,Powers,Functions and Responsibilities of various
Constitutional Bodies.
9 Statutory,Regulatory and various Quasi-judicial Bodies.
Year Question Context
2013 Recent directives from Ministry of Petroleum and Natural Gas are perceived by the Current Affairs
‘Nagas’ as a threat to override the exceptional status enjoyed by the State. Discuss in
light of Article 371A of the Indian Constitution. (10/200)
2013 Many State Governments further bifurcate geographical administrative areas like LSG – Theory (A.P – TN)
Districts and Talukas for better governance. In light of the above, can it also be
justified that more number of smaller States would bring in effective governance at
State level? Discuss. (10/200)
2013 Constitutional mechanisms to resolve the inter-state water disputes have failed to Theory + KN Water Issue
address and solve the problems. Is the failure due to structural or process inadequacy
or both? Discuss. (10/200)
2014 Though the federal principle is dominant in our Constitution and that priniciple is one of Theory
its basic features, but it is equally true that federalism under the Indian Constitution
leans in favour of a strong Centre, a feature that militates against the concept of
strong federalism. (12.5/200)
2015 The concept of cooperative federalism has been increasingly emphasised in recent Theory
years. Highlight the drawbacks in the existing structure and extent to which
cooperative federalism would answer the shortcomings. (12.5/200)
2015 In the absence of well – educated and organised local level government system, Edu based reservation in Raj
Panchayats and Samitis have remained mainly political institutions and not effective
instrument of governance. Critically Discuss. (12.5/200)
2016 Discuss the essentials of the 69th Constitutional Amendment Act and anomalies, if any, that Delhi Govt issues
have led to recent reported conflicts between the elected representatives and the institution
of the Lieutenant Governor in the administration of Delhi. Do you think that this will give rise
to a new trend in the functioning of the Indian federal politics? (12.5/200)
 Year Question Context
2016 To what extent is Article 370 of the Indian Constitution, bearing marginal note “temporary provision with In debate CA
respect to the State of Jammu and Kashmir”, temporary? Discuss the future prospects of this provision in
the context of Indian polity. (12.5/200)

2016 Did the Government of India Act, 1935 lay down a federal constitution? Discuss. (12.5/200) Theory

2017 “The local self government system in India has not proved to be effective instrument of governance”. Theory
Critically examine the statement and give your views to improve the situation. (10/150)

2017 Explain the salient features of the constitution(One Hundred and First Amendment) Act, 2016. Do you CA
think it is efficacious enough ‘to remove cascading effect of taxes and provide for common national
market for goods and services’? (20/250)

2018 Under what circumstances can the Financial Emergency be proclaimed by the President of India? What Theory
consequences follow when such a declaration remains in force? (10/150)

2018 Whether the Supreme Court Judgement (July 2018) can settle the political tussle between the Lt. CA
Governor and elected government of Delhi? Examine. (15/250)

2018 Assess the importance of the Panchayat system in India as a part of local government. Apart from Theory
government grants, what sources the Panchayats can look out for financing developmental
projects? (15/250)
 Year Question Context

2019 From the resolution of contentious issues regarding distribution of Theory

legislative powers by the courts, ‘Principle of Federal Supremacy’ and
‘Harmonious Construction’ have emerged. Explain. (10/150)

2020 How far do you think cooperation, competition and confrontation have Concept + examples from
shaped the nature of federation in India? Cite some recent examples to CA
validate your answer (10/150)
2020 Indian constitution exhibits centralising tendencies to maintain unity and CA
integrity of the nation. Elucidate in the perspective of the Epidemic
Diseases Act, 1897; The Disaster Management Act, 2005 and recently
passed Farm Acts. (15/250)

2020 The strength sustenance of local institutions in India has shifted from their Theory
formative phase of ‘Functions, Functionaries and Funs’ to the
contemporary stage of ‘Functionality’. Highlight the critical challenges
faced by local institutions in terms of their functionality in recent times.
(15/250)
 FOCUS AREAS WHAT TO PREPARE?
▪ Consolidated notes on federalism- nature of
▪ Standard theory question on Federalism and all
related components Indian federation

▪ Role of Governor ▪ Unitary bias in Indian Federalism (recent

▪ Related Institutions :ISWT, Niti Aayog, Councils examples)
etc. ▪ Governor as agent of Centre & Recommendations
▪ GST & Federalism for reforms (Sarkaria & Punchi Commissions)
▪ Emergency Review ▪ PRIs and Municipalities- including contributions
▪ North East and Federalism (Special Status, during Covid-19
Schedule Areas etc.)
▪ Full review onLSG
 FEDERALISM
Essential features
Introduction
• Dual Polity / Distribution of power: Usually, matters of national importance
• It is a form of government in which the sovereign are entrusted with the Centre, whereas local matters remain with state.
authority or political power is divided between
• Supremacy of the Constitution: Having the powers originate from the
the Centre and the States, each of whom are constitution ensure no authority arbitrarily takes over the powers of the
independent in their own sphere. other.
• According to Prof. Where, “it is a method of • Written Constitution: ensures there is no misunderstanding or
dividing power, so that the general (Centre) and disagreements.
regional (states) governments are each within a • Rigidity of the constitution: A rigid constitution makes amendments very
sphere, co-ordinate and independent and not complicated and tough, thus ensuring that none of the governments can
subordinate to one another” change it unilaterally. And any change in the constitution stems from both
the authorities.
• Hence, the existence of co-ordinate authorities
independent of each other is gist of federalism. In • Authority of the courts: Since federalism is based on division of power
Unitary constitution, powers are centralized in one between co-ordinate governments, it is essential to maintain the same and
government i.e. The Centre. ensure none transgresses into the domain of other. This has to be done by
some independent and impartial authority i.e. The judiciary. The Judiciary
has the final authority to interpret the constitution and sit as an arbitrator
of disputes between Centre and state
 FEDERALISM

IS INDIAN CONSTITUTION FEDERAL?

• Yes, Indian constitution has all the above-mentioned features of federalism. It
has established a dual polity by Article 1(1), Part V and VI, Division of power
u/a 246 read with schedule VII (List I and II). Further, under normal
circumstances, we have a coordinate polity and not subordinate polity
because state has the same power over the state list as Centre has over the
Union List. Ours is a written and Supreme Constitution with unique blend of
rigidity and flexibility (Article 368). Supreme Court is the independent and
impartial arbitrator of disputes between Centre and state (Article 131) and
also the final interpretant of the constitution (Article 132).
• However, certain scholars hesitate to characterize Indian Constitution as truly
federal because in certain circumstances the constitution empowers the
Centre to interfere in a state matter and places the state in a subordinate
position which violates the federal principle.
 FEDERALISM
To sum up,
Federal features of the Constitution:
Centralising features of Indian federalism: • Dual polity
(Centre > States) • Supremacy of Constitution
• Emergency provisions
• Written Constitution
• Integrated judiciary
• Rigidity of Constitution
• Sharing of revenue through FC
• Independent judiciary
• Concurrent list
• Residual powers lie with the Centre Acts giving Centre the power to issue directions to State
governments: (Latest CA: during Covid-19 lockdown)
• States not destructible
• Flexibility of the Constitution • Farm acts have been implemented under the Concurrent list. Therefore,
• Veto over State Bills laws will be upheld even if the States oppose.
• Appointment of Governor
• The DMA, enforced during the Covid-19 pandemic, has been enacted under
• Parliament’s authority over State list
the residual powers.
• Epidemic Diseases Act: Health is a state subject, but by invoking the
provisions under this Act, advisories and directions of MoH&FW will be
enforceable.
 FEDERALISM

DEVIATIONS FROM FEDERAL CHARACTERISTICS/UNITARY BIAS

• Article 1 mentions India i.e. Bharat as a Union of states and not a federation of states.
• Legislative Relations:
• Article 248 confers residuary power in the Union
• U/a 249 Parliament is empowered to make law with matters enumerated in List II if necessary, in national interest.
• Power of Parliament to legislate with respect to any matter in the State List if a Proclamation of Emergency is in
operation u/a 249.
• Parliament can also make laws for the states if two or more states request the parliament for the same u/a 252.
• Similarly, for giving effect to international agreements, Parliament can make any legislation (Article 253)
• In case of inconsistency between laws made by Parliament and the state with respect to concurrent list matters, the
laws made by parliament will prevail over law made by state to the extent of inconsistency (Article 254)
• Previous sanction of President is required to introduce certain bills in state legislature u/a 304
Financial Relations: States largely depend upon the center for financial assistance through grants-in-aid. Further the
taxation power of state is comparatively restricted as compared to the Union because more important taxes such as income
tax, wealth tax , excise duty etc. are reserved for the Union.
 FEDERALISM
• Executive/ Administrative Relations:
U/a 256,the executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament
U/a 257 talks about control of union over states in certain situations , wherein the Union will have the power to give such directions
to a State as may appear to the Government of India to be necessary for that purpose.
Article 356 authorizes the President to hold that governance of a state is not being carried ed out in accordance with the
constitution ,if the state fails to comply with directions of the Union and can impose State emergency.
Article 312 which speaks about all India Services ensures that the officers of such service at the state level ensure that Union’s law
and policy ae being implemented properly.
• Parliament’s power to form new states and alter the boundaries of existing sates u/a 3 proves that states do not enjoy territorial
integrity and depend upon the sweet will of the Union.
• Appointment of Governor- Governors are appointed by President and answerable to him, hence they act in a manner suitable to
the center (as they are an agent of center in the state) even at the cost of the interest of the sates.
• Emergency Provisions: During emergency the normal distribution of power undergoes drastic change, in favor of center. U/a 356
state legislatures can be dissolved and Presidents rule can be imposed.
• Freedom of trade and commerce: The provisions of part XIII seeks to make India a single comprehensive economic unit for
purpose of trade and commerce under the overall control of the Union.
• Single and uniform citizenship for the whole of India ,unlike USA where states have separate citizenship.
• Uniform and integrated Judicial system ▪ Hence India is considered as an “Indestructible Union of destructible states”
 FEDERALISM
SUPREME COURT’S VIEWS
• In Ram Jawaya Kapoor, it held federal principle or doctrine of separation of power is not incorporated in Indian constitution in strict and rigid
form.
• In State of West Bengal V UOI, court said “Indian constitution is not truly federal because Union enjoys greater power and state are not co-
ordinate of the Centre.
• In State of Haryana V UOI, it held that a semi-federal system of government has been adopted in India.
• Kuldip Nayyar v UOI – though federal principle is dominant and one of the basic features, but it is true that federalism in India leans towards
a strong Centre.

NATURE OF INDIAN CONSTITUTION

• Prof. Wheare, considers Indian constitution as Quasi Federal – a unitary state with subsidiary federal characters and not a federal state with
subsidiary unitary characters. But his characterization has been criticized as it is a very vague term and does not denote how powerful the
Centre is or how much deviation there is from pure federal model.
• Austin and A.H. Birch used the term “Cooperative federalism’ for Indian system i.e. Neither purely federal nor purely unitary but combination
of both. To ensure cooperation between the two, strong Centre is there but regional governments are not weak and there is mutual
dependence amongst the two.
• Dicey feels federalism has been watered down in India in order to meet the needs of a country which has to remain nationally integrated,
politically and economically coordinated and socially uplifted.(Quoted in State of Rajasthan Union of India)
• Dr Ambedkar considers Indian constitution both federal and unitary depending upon situation and circumstances.
• As pointed out by Dr.V.N Shukla, emergency and other situations which vest union with greater power do not modify or destroy federal
structure. Rather they are merit of our constitution that it visualizes such contingencies where constitution can adapt itself to the changing
circumstances and overcome crisis.
 FEDERALISM

CONCLUSION
• India adopted a federal structure as different parts of the country were at
different stages of development, but we needed a strong Centre to
maintain unity and integrity especially considering the heterogeneity of the
population and experience of partition. Indian federalism is sui generis / of
its own kind because of its mode of formation i.e. from Union to states
(Union divided into states) and not vice versa like in case of USA (states
came together to form union)
• The constitution is neither purely federal nor unitary. It is a Union of
composite States as neither the parliament nor the states are sovereign
because each of them are limited by the constitutional provisions affecting
the distribution of power.
• Thus, Indian constitution is mainly federal with unique safeguards for
enforcing national unity and growth
 FEDERALISM

ASYMETRICAL FEDERALISM VERTICAL ASYMMETRY

• The issue of asymmetrical federalism has once It is a settled fact that India is not a true federation
again come to the fore following the government because the of the strong unitary tendencies. The
move to revoke the special status given to J&K main provisions which point to this asymmetry are –
u/a 370. Asymmetrical federalism for long has • In India only the union is indestructible and
been a contentious issue in India’s federal polity. not the states because they have no defined
territory integrity as is clear from Article 3.
• It is understood to be the unequal distribution of • Creation of Union Territories.
power amongst the constituting units of a • Emergency provisions.
federation in political ,administrative and fiscal • States do not have equal say in case of
spheres. In India, this asymmetry is both vertical amendments and are asked to ratify law only
( between centre and states ) and also horizontal if their interest is involved.
( amongst the states ) • Centre enjoys an overall legislative,
administrative and fiscal precedence over the
states in India.
 FEDERALISM
HORIZONTAL ASYMMETRY
A) Among States : Not all states are equal in India and there is difference in order to accommodate specific local, historical and
geographical contexts.
• Unequal representation in Rajya Sabha based on the population of the state.
• Special provisions’ applicable to some States u/a 371 by empowering the Governors to
discharge some special responsibilities, which he does in his discretion.
• Article 371 says the Governor of Maharashtra has a special responsibility to establish separate development boards for
Vidarbha, Marathwada, and the rest of the State, while the Governor of Gujarat has a similar responsibility towards
Saurashtra, Kutch and the rest of Gujarat.
• Under Article 371A no law made by Parliament in relation to Naga customary law and procedure, including civil and criminal
justice matters, and ownership or transfer of land and resources will apply to Nagaland, unless the Legislative Assembly of
Nagaland decides so. Further, the Governor of Nagaland has a ‘special responsibility’ regarding law and order in the State.
• Article 371B contained a special provision for Assam under which a committee of legislators from the tribal areas was formed
to look after their interest. The tribal areas later became Meghalaya State.
• Under Article 371C, the Hill Areas of Manipur ought to have a committee of legislators. The Governor has a special
responsibility to make an annual report to the President on the administration of the Hill Areas. The Centre is empowered to
give directions to the State as far as these areas were concerned.
 FEDERALISM
• Article 371D says President can pass an order to provide equitable opportunities and facilities to people belonging to
different parts of Andhra Pradesh in public employment and education. In particular, the President can create local
cadres in various classes of employment and allot civil posts to specified local cadres only. To give effect to this
arrangement, an Administrative Tribunal has been set up. No court, other than the Supreme Court, has any power of
superintendence over this tribunal.
• Article 371F incorporated special provisions after the addition of Sikkim to India. One major objective was to grant
protection to existing laws in Sikkim so that they are not declared unconstitutional after being brought under the
Constitution of India.
• Article 371G contains special provisions to preserve the religious and social practices of Mizos in Mizoram and their
customary law and procedure and administration of criminal and civil justice, besides ownership of land.
• Article 371H vests a special responsibility on the Governor of Arunachal Pradesh with respect to law and order. It
makes clear that the Governor shall discharge this function after consulting the Council of Ministers, but exercise his
individual judgment as to the action taken.
• The Sixth Schedule to the Constitution contains provisions for the administration of tribal areas in Assam, Meghalaya,
Tripura and Mizoram. These create autonomous districts and autonomous regions administered by District Councils
and Regional Councils. These Councils can make laws with respect to allotment, occupation and use of land,
management of forests, regulate social customs, marriage and divorce and property issues. E.g. In Assam, the Karbi-
Anglong Autonomous Council, Dima Hasao Autonomous District Council etc. Ladakh has two autonomous hill
development councils (Leh and Kargil).The Darjeeling Gorkha Hill Council is in West Bengal.
 FEDERALISM

B) Among Union Territories: Union territories are also not equal as

–
• Puducherry and Delhi have legislatures, while the other territories under the Centre do
not have legislatures or a ministerial council to advise the administrator.
• Even between Puducherry and Delhi, there is a notable difference as Puducherry has
legislative powers on any matter mentioned in the State List or the Concurrent List,
insofar as it applies to the Union Territory but Delhi cannot make laws on matters of
police, land and public order.
• However, Parliament has overriding powers over any law made by the Assembly in the
Union Territories.
• Puducherry has one more unique feature. Despite being a single administrative unit, the
Union Territory is ‘non-contiguous’. That is, its territory is not limited to one extent of
land as it has enclaves located within other States: Karaikal (Tamil Nadu) Yanam (Andhra
Pradesh) and Mahe (Kerala).
 FEDERALISM

IMPORTANCE OF ASYMMETRIC FEDERALISM IN INDIA:

• Ensures unity in diversity as it helps to respects and preserve
vulnerable groups through special powers.
• Satisfy different needs of various federal units which are a result of an
ethnic, linguistic or cultural difference
• Help to protect fundamental rights, and compensate for initial
inequalities in the social system.
• Allowance for separate laws to govern different religious groups, and
provisions for various kinds of affirmative action for extremely
disadvantaged groups help in ensuring social justice to them.
• Gives better representation to minority areas in the democracy
 FEDERALISM
COOPERATIVE AND COMPETITIVE FEDERALISM
• Federalism is form of government where there is distribution of power amongst two or more coordinate authorities who are independent in their
sphere.
• Based on the relationship between the central and state government–the concept of federalism is divided into- Co-operative federalism and
Competitive federalism.
In short,

Term Definition Examples

Cooperation (includes Cooperative Centre = States Schedule VII, NITI Aayog, Zonal councils,
federalism) Share a horizontal relationship NDC, COVID-19 Lockdown: cooperation in
solving migrant crisis and enhancement of
testing facilities
Competition (includes Competitive Centre > States Post 1991 LPG reforms: attracting FDI &
federalism) C and S share a vertical relationship GDP growth rates; More recent: EoDB,
S and S share horizontal relationship Logistics Index, Swachh Bharat Sarvekshan

Confrontation Result of Central government transgressing Historically: Inter-State Water Disputes,

into the powers of the State government Sharing of taxes, A.356, CBI jurisdiction
More recent: GST Act, PM-JAY, recent farm
bills
 FEDERALISM
COOPERATIVE FEDERALISM:
• It is a type of federalism wherein the interaction between the constituent authorities is based on “cooperation” so that they
can collectively use their energy and resources to promote and maximize public welfare and national goals.
• Governments in cooperative federalism share a horizontal relation rather than a hierarchical one and common policies are
promoted not by dictation but by discussions, agreements and compromise.
• It is an important tool which enables greater participation of state governments in formulation and implementation of
national policies.
Indian Constitution envisages in the spirit of Cooperative federalism –
▪ Schedule VII gives the three lists and provides for the center-state cooperation on legislative matters.
▪ U/a 263 Interstate council has been provided to resolve any kind of disputes between the center and the states or amongst
states
▪ Establishment of zonal councils under state reorganization act 1956, as instruments of intergovernmental consultation and
cooperation.
▪ National Development Council (NDC) is the apex body for decision making and deliberations on development matters has
representation from both the Centre and State. Thereby making states part of development process
▪ Interstate water disputes Act and River Boards Act provide means to adjudicate disputes relating to using and sharing of
interstate rivers.
▪ The 73rd and 74th constitutional amendment introduced Panchayati raj (Rural) and Municipality (Urban) system to
strengthen the roots of cooperative federalism in India
 FEDERALISM
OTHER MEASURES TAKEN IN RECENT PAST
• Abolition of the erstwhile Planning Commission and setting up of NITI Aayog which has made states a party to the
developmental plan and policies of the government.
• Implementation of GST and establishment of GST council
• Increase in the share of divisible tax-pool from 32% to 42% for the states as per recommendation of 14th Finance
Commission.
• Raising the non-statutory share from 21% to 26% for states and about 57.6% of the gross tax receipts are to be
transferred to the states
• NITI Aayog has also established various Centre-State partnership models for development of infrastructure -
Development Support Services for States (DSSS) for Infrastructure Projects and the Sustainable Action For
Transforming Human Capital (SATH) programme which is designed to help States improve their social sector indicators
by providing them technical support.
• Further, with the aim of correcting regional developmental imbalance, NITI Aayog has taken special steps for regions
needing special attention and support, like Forum for North East, Sustainable Development in the Indian Himalayan
region, Incredible Islands of India Holistic Development project.
• Joint venture between state and center to carry out infrastructure project like rail projects.
• Replication of success of one state to other state or at national level like Karnataka’s e-mandi has been replicated as
National Agriculture Market.
 FEDERALISM

CHALLENGES
• Trust deficit between Centre and States
• Multiparty system
• Regionalism, terrorism, naxalism etc.
• Superior legislative power of the center due to residuary power and
legislative precedence
• Wider taxation power to the center etc.
 FEDERALISM

COMPETITIVE FEDERALISM
• In Competitive federalism there is competition between the Centre and the State and
also amongst the State governments, to get maximum benefits in order to facilitate
better administration and enhances developmental activities.
• Post 1990s economic reform gave ground to the idea of competitive federalism as
inequalities and disparity grew. Today in a free market economy, endowments, funds,
investments, available resources etc. all have fostered a healthy competition where every
government is striving to get the maximum in order to improve physical and social
infrastructure within the state. Competitive federalism follows the concept bottom-up
approach as it will bring the change from the states.
• For e.g. The investors prefer more developed states for investing their money. Union
government devolves funds to the states on the basis of usage of previously allocated
funds.
 FEDERALISM

STEPS BEING TAKEN TO FOSTER COMPETITIVE FEDERALISM

• Competitive federalism though is not part of the basic structure of Indian constitution but of late is being actively
encouraged by the Central Government especially NITI Aayog in order to fasten the development in the states.
• One of NITI Aayog ‘s mandate is to develop competitive federalism so that states governments do not look
towards center for policy guidelines and fiscal resources.

• The NITI Aayog will also provide for the appointment of Regional Councils with specific mandates for specific
time period
• The Central government has promised decentralization of power and minimum interference in the State affairs
• Based on 14th Finance Commission’s recommendations, States share has been increased from 32% to 42% which
will enable the states to design and implement programs better suited to their needs

• Performance related grants to local bodies in14th FC

• Freedom to modify centrally sponsored schemes according to the needs of individual States
 FEDERALISM

• States would work with center on a shared vision of national objectives.

• Restructuring of centrally sponsored Schemes.
• Financial sector bailout programme under UDAY scheme to state
DISCOMs
• Aspirational District Programme and Smart cities Mission.
• State wise Ease of Doing Business ranking to build a huge sense of
competition.
• Ranking states on various social indicators - Swachh Bharat Ranking
system, School education quality index ,composite water management
index. SDG India Index etc.
 FEDERALISM

SOME EXAMPLES OF STATES MOVING TOWARDS COMPETITIVE FEDERALISM

• Though competitive federalism has not been embraced by all states ,however some of them have
jumped the bandwagon by facilitating reforms in terms of ease of doing business ,expediting the
pending project clearances ,attracting investments etc. Most of the state now organizes investors
meet to showcase facilities in their state to attract business and investment. This has led to
improvement in business environment in various state.
• Gujarat has amended its land acquisition act to attract more investment.
• Maharashtra has amended the Maharashtra Land Revenue Code, allowing the sale of certain
publicly-owned lands that were previously slated only for leasing.
• The Andhra Pradesh legislature has passed a bill extending land leases from the government to
private entities from 33 years to 99 years.
• Gujarat and Karnataka have passed various reforms in labour laws.
• Uttar Pradesh has approved the Uttar Pradesh Information Technology & Start-Up Policy 2016. To
encourage start-up growth, the policy waives taxes on land purchased for office use, as well as
electricity dues for five years.
 FEDERALISM
CHALLENGES
• Despite Centre increasing the States’ share of the divisible pool, the revenue of the states have come down because of
which allocation towards social sector schemes has also reduced.
• It is in a way increasing gap between developed and under developed states.
• Not all states are taking equal part and only richer states like Gujrat ,Maharashtra, Tamil Nadu etc are competing.
• The present inter-state competition in attracting investment is too early to determine whether it will really encourage
competitive patterns of investment on a continuous basis.
• Since the socio-economic parameters and development of each State in India is different, only those states who have
made substantial progress in terms of employment, literacy and creating a conducive environment for doing business
and investments are actually competing . other states are mute spectators.
• The states like West Bengal, Bihar, Orissa, and Assam have protested against the uniform approach in funding because
of their special situations in which the central government has to provide special funds to these states. Without special
funding these states cannot imagine their participation in competitive federalism.
• Though the states are provided with financial independence, not all states would perform uniformly in the process of
development because while some states have favorable factors like skilled labour, capital and infrastructure, innovative
service industries other states lagging behind.
 FEDERALISM

ARE THEY BOTH COMPLEMENTARY?

WHAT SHOULD INDIA FOLLOW?
• Though cooperative and competitive federalism seem to be contrary, they are in fact
sides of the same coin as they have the same basic underlying principle – progress of the
nation as a whole. In fact the NITI Aayog e-book talks of competitive federalism as a force
multiplier to achieve the objective of cooperative federalism.
• Competitiveness is an idea that has stood the test of time and India can only achieve its
ambitious growth targets by enhancing competitiveness at all levels of government.
However, improving competitiveness requires economic and social development, which
in turn requires coordination of our economic and social policies across various levels of
government.
• For example, implementing GST required consensus among states and now, we have the
GST Council, with states as equal members who are part of national fiscal policy.
• Another example is India’s improvement in the World Bank’s Ease of Doing Business
Index. We have been able to jump 65 positions in the rankings only because states
brought about many reforms. This was made possible through the creation of an EoDB
Index for Indian States and the release annual rankings to indicate areas in which they are
lagging.
 FEDERALISM

• Another major success story is Aspirational Districts Programme (ADP) which is a programme
with convergence, collaboration and competition as the core tenets. States are the main
drivers behind this programme but are working with central government detect opportunities
for immediate improvement.
• Similarly promoting one Smart City in each state is cooperative federalism but states
encouraged to come up with their own plans for smart cities is competitive federalism.
• In future also agriculture can be reformed in the same way. Though agriculture is state subject
,however we need coordination and consensus-building to unlock the agriculture market in
India. Prime Minister has already established establishing a “high-powered committee of chief
ministers” to recommend reform in Indian agriculture markets.
• The two together will also lead to good governance as there is naming the best performers
and shaming the worst. Since these rankings are in the public domain, the accountability of
both elected officials and administrators has risen ,thereby leading to good governance
• Nudge of the competition ensures that states work hard towards reform and improve their
social parameters. But at the same time cooperative federalism provides motivation and the
support to the states to up their game and contribute in nation building.
 FEDERALISM
WHAT INDIA CAN DO TO IMPROVE?
• Cooperative and competitive federalism are complementary ideas that will drive India’s growth story in the coming decades.
However certain reforms can be done to improve both.
• Centre’s support would be required by some states, like Bihar, Odisha, Jharkhand, NE states etc to have a meaningful
participation in competitive federalism .some states are deficit or backward ,hence they should not be treated at par with
the well-off states.
• Strong states make strong nation and to realize this vision, it requires a “Team India” approach to work for India’s
development.
• Reconstitution of the Inter State Council recently is a step in the right direction
• State must be given greater autonomy with regards to issues like health, education, land, labour, natural resources etc.
• States/UTs should be assisted through the help of expert panels to make competitive and robust policies which are more
acceptable and transparent
• On contentious issues like land, labour and natural resources, a sound mechanism should be developed to resolve issues and
promote development
• On issues like international treaties, WTO obligations, or the environment an institutional mechanism must be evolved where
important decisions are appropriately discussed with states.
• Best practices amongst states should be widely publicized.
 FEDERALISM

CONCLUSION
India needs a mix of both competitive and cooperative federalism or as NITI Aayog calls its
competitive cooperative federalism, to move ahead. In fact, instituting a system of cooperative
and competitive federalism has been a hallmark of India’s policy-making in the past five years
and has achieved considerable results. Competition is required to fight the complacency of
cooperation and cooperation helps to balance out the vigor of competition.
 GOVERNOR

APPOINTMENT OF THE GOVERNOR

• Article 153 states that every state shall have a governor
• Article 154 states that the executive power of the state shall be vested in the
Governor
• U/a 155 it is the President of India who appoints the Governor; however, he
exercises this power on the aid and advice of PM/ CoM. Over the period of time,
in order to ensure smooth function of the affairs of the state, a convention has
grown where the Chief Minister of the state is consulted before appointment.
Hence, the office of the Governor is a nominated one and not elected. The reasons
for this are:
• Nominated governor will promote all India unity and not separatist provincial tendency.
• Since he is only a nominal head, no point of spending huge amount of money or energy for his election.
• An elected governor will belong to a party, hence, will not be impartial and neutral
• Conflicts will arise between C M and Governor if both are elected by people.
 GOVERNOR
TENURE/REMOVAL
• Article 156(1) clearly states that the governor holds the office during the pleasure
of the President i.e. as long as the central executive wats him in the office. Hence,
he can be removed by the Centre on any grounds which the President is not bound
to disclose.
• Subject to this overall condition, he holds the office for a term of five years
[(Article 156(1)] and can resign early by writing to the President.
• Unlike the President, the governor is not impeached because he holds the office
during the pleasure of the President. Since he is a political appointee of whose
appointment is made on political conditions, it can also be terminated on political
considerations. Therefore, no grounds have been specified for his removal.
• Over time, the governor’s tenure became a very burning federal issue as it was
believed that central government used uncertainty of tenure, including his
transfer, as a ground to influence his decision, thereby making it difficult for him to
function with complete impartiality and as an independent constitutional
authority.
 GOVERNOR

JUDICIAL REVIEW OF GOVERNOR REMOVAL

• Therefore, in order to prevent governors being completely at the mercy of Centre, the SC in B.P Singhal V
Union of India held –
• Governors can’t be dismissed arbitrarily on the ground that center has lost confidence in him and he
does not agree with Centre’s ideologies and policies.
• Just because he holds office during the pleasure of the President does not make him an employee or
servant of the Union Government.
• The constant threat of removal makes him subservient to the Union Govt, hence certain safeguards
have to be read into article 156(1).
• Hence, the court held that if an aggrieved person can show that his removal was arbitrary, mala fide,
capricious or whimsical, he can call upon the central government to disclose to the court the material upon
which the President took the decision.
• Therefore, even if the reason for his removal is not to be assigned, a limited judicial review is allowed if the
removal is arbitrary, mala fide etc.
• ‘Doctrine of Pleasure without limitation’ cannot be applied in India where the rule of law prevails.
 GOVERNOR

POSITION OF GOVERNOR IN A STATE

• The governor plays a dual role – he is the head of the State as well as a
representative of the Centre in the State.
• As representative of the Centre he is a vital link/ channel of communication
between the Centre and the state. It is his duty to keep the Centre informed
of the affairs of the state. This helps the Centre discharge its constitutional
responsibilities towards the State. He acts as an agent of the Centre when a
proclamation of emergency is made u/a 356
• As a Constitutional Head of the State, he appoints the Chief Minister and
other Ministers and discharges several important functions in relation to the
state legislature. As he has a fixed term, he assures continuity in state
administration while the CMs come and go.
• Thus, he is a key functionary in the system envisaged by our Constitution.
 GOVERNOR

CONSTITUTIONAL POSITION/RELATION WITH COUNCIL OF MINISTERS

• The relation between the governor and his Council of Ministers is similar to that between President and the Union
CoM, i.e. he has to act on the aid and advice given by the CoM except in all the cases where the Constitution
authorizes the Governor to exercise powers ‘in his discretion’.
• Article 163(1) says there will be Council of Ministers to aid and advice the Governor except in the cases he has to act in
his discretion.
• Article 163(2) then says if any questions arises with respect to whether a matter falls under Governors’ discretionary
power or not, the decision of the Governor with regards to the question shall be final and anything done by the
governor in his discretion will not be called into question.
• Article 163(3) does not allow the courts to inquire into what advice was tendered by the CoM to the Governor.
• The Constitution makers conferred explicit and far wide discretionary power on the Governor because as the
representative of the Centre governor has to serve as eye and ears of the Centre and so needs independence and
discretion in certain matters and also because he is an important link between the center and state to maintain unity
and integrity of India.
 GOVERNOR

Constitutional position of governor is different from that of the President as:

• firstly, constitution explicitly provides for governor to act in his discretion but no
such possibility has been envisaged for the President,
• secondly while the President can ask the Union CoM to reconsider any advice, no
such provision is there with respect to Governor and,
• thirdly, 42nd Constitutional Amendment Act , 1976 made ministerial advice
binding on President but with respect to Governor no such provision is there. But
this hardly makes difference in reality because the position is similar to what
existed prior to the amendment.
Though various articles of the Constitution expressly require Governor’s discretion
but in all other matters he has to act in harmony (on advice) with his CoM
(Shamsher Singh V State of Punjab) because constitution does not aim to provide
parallel administration within the state by allowing governor to go against the
advice of CoM.
 GOVERNOR
DISCRETIONARY POWER OF THE GOVERNOR
• The Governor has to discharge certain functions in his discretion ‘by or under’ the constitution. This means
that his discretionary power need not be always express but may be necessarily implied.
• In the following cases governor has Constitutional discretion i.e. constitution mentions governor to exercise
these functions in his discretion/opinion/ independently of the CoM.
• Reserving a bill for President’s consideration u/a 200.
• Governor’s report recommending imposition of governor’s rule in the State u/a 356.
• While exercising his functions as the administrator of an adjoining Union Territory u/a 239(2).
• Determining the amount payable by the Government of Assam to the district councils as royalty accruing from
licenses of mineral exploration.
• In addition to the above the Governor has certain ‘special responsibilities’ to discharge u/a 371,which
practically means his discretion and though he is, in case of special responsibility, to consult CoM but the final
decision will be his individual judgement. These include establishing separate development boards of certain
areas in Gujrat and Maharashtra, administration of tribal areas in Assam, hill area in Manipur, law and order in
Arunachal Pradesh, Nagaland etc.
 GOVERNOR

SITUATIONAL DISCRETION
Appointment of the Chief minister u/a 164(1): When no party has achieved a clear cut majority in the
elections or when the chief Minister suddenly dies and there is no obvious successor ,in those situations'
governor can call any person to form the government who he thinks can command majority.
• In Pratap Singh Raojirao vs Governor of Goa , the court held that for the purpose of the appointment of
the Chief Minister, Governor acts in his sole discretion and while taking decision in his sole discretion he
enjoys immunity under Article 361 of the Constitution.
• About the appointment of a non-legislator as the Chief Minister in B.R. Kapur vs State of Tamil Nadu,
court held that a non-legislator can be made Chief Minister only if, he has the qualification for
membership of the Legislature prescribed by Article 173 of the Constitution and is not disqualified from
the membership thereof by reason of the disqualification set out in Article 191 of the Constitution on
the date of his appointment.
• In Anil Kumar Jha v UOI ,governor appointed the leader of a party which was not commanding majority
as C M .court held into be arbitrary and mala fide exercise of power
 GOVERNOR

SITUATIONAL DISCRETION (Contd..)

Dismissal of Ministry when it cannot prove the majority in the house: Since CoM u/a 164(2) is collectively responsible to the
state legislative assembly hence if a ministry has lost confidence of the house but refuses to resign, in that case Governor can
dissolve the Ministry
• In Mahabir Prasad Sharma vs Prafulla Chandra Ghose, the Calcutta High Court has ruled that if the Council of Ministers
refuses to vacate the office of ministers, after the defeat of the confidence motion in the House, then the Governor may
withdraw his pleasure. The Court also held that the right of the Governor to withdraw his pleasure during which the minister
is to hold office is absolute, unrestricted and unfettered and the exercise of discretion in withdrawing the pleasure cannot be
called in question in a court of law.
• In Jagdambika Pal vs State of U.P., the Supreme Court directed to convene a special session of Legislative Assembly and to
have a composite floor test between contending parties to ascertain who out of two (Sh. Kalyan Singh and Sh. Jagdambika
Pal) enjoys a majority in the Assembly. It shows that the Governor’s discretion to dismiss the ministry should be exercised
only when the Chief Minister fails to prove the majority on the floor of the House by any means.
• In Jogendra Nath vs State of Assam, commenting about the discretionary power of the Governor in appointing or dismissing
the Chief Minister, the Gauhati High Court observed that 'the repository of power to appoint Chief Minister or to withdraw
the pleasure contemplated under Article 164 and/or dismissal of ministry are exclusively pleasure-cumdiscretion of the
Governor. He is the sole and exclusive authority to appoint a Chief Minister’.
 GOVERNOR

SITUATIONAL DISCRETION (Contd..)

Dissolution of State Legislative Assembly:
• Various Governors have adopted different approaches in similar
situations in regard to dissolution of the Legislative Assembly.
• The advice of a Chief Minister enjoying majority support in the
Assembly to dissolve the house is normally binding on the Governor.
• However, where the Chief Minister had lost such support, some
Governors refused to dissolve the Legislative Assembly on his advice,
while others in similar situations, accepted his advice, and dissolved
the Assembly.
 GOVERNOR
IS GOVERNOR AN AGENT OF CENTRE?
• Governor is an appointee of the President, and holds office “during the pleasure of the President.”

• President is bound to act on the aid and advice of the Council of Ministers (Article 74), in effect it is the Central
Government that appoints and removes the Governors:

• “Pleasure of the President "actually refers to will and wish of the Central Government.

• The Constitution is strictly against compromising the relative autonomy of the States. Appointing Governors
due to:

• Common political ideologies

• or to reward past acts of the persons

• Leads to over-centralization, hence giving rise to negative terms such as ‘agent of center', 'rubber stamp’, etc.
 GOVERNOR
IS GOVERNOR AN AGENT OF CENTRE?
• Recent appointments of Governors do not abide by Constitutional mandate. Keeping in mind that BJP is in power at center:
• In Congress governed Rajasthan, Kalraj Mishra (who is a politician and former cabinet minister in the BJP led NDA
government of Narendra Modi) was appointed as Governor(2019-present).
• Shri Bandaru Dattatreya (former Lok Sabha member for BJP) was appointed as the Governor in Himachal Pradesh in
2019.
• Smt.Tamilisai Soundararajan was appointed as the Governor of Telangana; former state head of BJP in Tamil Nadu.
• BJP member C.Vidyasagar Rao is replaced by another veteran BJP leader Bhagat Singh Koshyari in Maharashtra.
• Arif Mohammed Khan has been appointed as the Governor in Kerala; he earlier quit the Rajiv Gandhi government over
the Shah Bano case, has been cited many times by BJP.
• Unless the party ruling the State is a non-BJP party, there is no check over the appointed Governor.
• Though Constitution separates Centre and State, granting the latter relative autonomy, due to this biased nominated
appointment of Governors is shrinking Governor’s roles down to clearly and distinctly become Agent of the Centre,
implying, Governor was never meant to be Agent of the Centre, but is in danger of getting reduced to it due to biased
practices.
• There exists urgent necessity for depoliticization of the post of Governor.
 GOVERNOR

REFORMS IN THE OFFICE OF GOVERNOR

• “The governor is the linchpin of the constitutional apparatus in the state” , said the Sarkaria Commission. His role
has emerged as one of the key issues in Union state relations and has been criticized for want of ‘impartiality and
sagacity’.
• Regarding appointments Sarkaria commission said the effective consultation between the center and the C M
should be there by amending Article 155. Further governor should be eminent, come from outside the State, be
not too intimately connected with the local politics of the State; and not recently haven taken too great part in
politics. particularly in the recent past.
• However the Punchhi Commission said that phrases like eminent ,detached figure is too vague and hence strict
guideline should be adopted.
• As regards the removal, the Sarkaria commission recommended that governors five year term should not be
disturbed except very rarely and that too compelling reasons and should the governor be transferred or his tenure
terminated, the central government may lay and explanatory statement before the parliament.
• Punchhi Commission recommended that the phrase during pleasure of president should be removed from article
155 and governor should be impeached on same ground as the President.
Commissions to improve Summary of Commission Recommendations for Governor’s Office
Centre-State Relations

Sarkaria Commission • Submitted report in1988. Governor shouldbe

• Recommended changes in Centre- o eminent in some walk of life.
(1983)
State relation, especially in areas o from outside thestate.
relating to legislative matters, the o detached figure without intense political links.
role of Governors, o should not be a member of the ruling party.
and the use of Article 356. o appointed after effective consultations with the State Chief Minister and Vice
President and Speaker of the LokSabha.
o removed before his tenure only on the grounds as mentioned in the constitution
or ifaspersions are cast on his morality, dignity, constitutional propriety, etc.

Administrative Reforms Considered existing constitutional Governorsof State must be

Commission provisions sufficient toregulate o non-partisan persons
federal tensions. o Long experience in public life and administration.
(1969)
• Gave 22 recommendations for
Centre-State relations.
Punchhi Commission Relooked into issues in Centre-State • Incumbent should have stayed away from active politics even at the local level
relations previously for at least two years prior.
(2007)
Recommendations for • Committee comprising of Prime Minister, Home
appointment/Office of Governor Minister, Speaker of Lok Sabha, concerned state Chief Minister, and Vice
looked into by Sarkaria President should be entrusted with appointment.
Commission. • Only a resolution by the state legislature should remove the governor.
• Examined the role and removal o provision for the impeachment of the governor by the statelegislature.
procedures of governors.
• Doctrine of Pleasure should be deleted from the
Constitution.
 INTER STATE WATER DISPUTES
Context :
• National Commission for Review of Working of
Constitution (NCRWC) has strongly recommended for
protection of already adjudicated rights of states over the
rivers flowing through their states and effective and
meaningful consultation with all state governments before
bringing any bill on River Water Rights.

Constitutional Background:

• Though water is state subject, inter-state rivers and river

valleys fall under the Union List to 'the extent to which such
regulation and development under the control of the Union,
is declared by Parliament by law to the expedient in the
public interest'. Parliament can make law, but with an
objective to expedite dispute resolution.
 INTER STATE WATER DISPUTES

CONSTITUTIONAL PROVISIONS
Article 262 (1) bars the jurisdiction of the Supreme Court but matters are still being taken there on
related legal, jurisdictional, environmental and constitutional issues. Since Article 262 is the only Article
in the Constitution that bars the jurisdiction of the Courts, it would be necessary for Courts to take note of
this constitutional provision

Article 262. Adjudication of disputes relating to waters of inter-State rivers or river valleys.—

▪ (1) Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use,
distribution or control of the waters of, or in, any inter-State river or river valley.
▪ (2) Notwithstanding anything in this Constitution, Parliament may by law provide that neither the Supreme
Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is
referred to in clause (1).
The Inter-State River Water Disputes Act 1956 (IRWD) is made, that provides for an aggrieved State
to request the Union Government to refer a dispute to a tribunal.IRWD Act is applicable only to
interstate rivers/river valleys.
 INTER STATE WATER DISPUTES
▪ Present IRWD Act of 1956 provides for an aggrieved State to ask the Union Government to refer a
dispute to a tribunal. That means unless state asks for, the Centre has no role to play.
▪ If the Centre refers,a water disputes tribunal is appointed by the Chief Justice of India and consists of a
sitting judge of the Supreme Court and two other judges chosen from the Supreme Court or High
Courts.
▪ Such a tribunal,if appointed, can choose assessors and experts to advise it and the Award, once given,
is final and beyond the jurisdiction of courts.Here also there is no role carved out for Centre except
making a reference.
▪ Water dispute is deemed to have arisen under IRWD Act (section 3) when an action of one state
should affect the interests of one or more other states. When there are serious disputes between
states on sharing river water,and a permanent set up of interstate water dispute tribunal is being put
in place, state having dispute should be given right to straight away approachthe tribunal
 INTER STATE WATER DISPUTES

The Core Issue

▪ This Act makes a state government to beg the center to refer an inter-
state river dispute to a Tribunal. If the center thinks that the dispute
cannot be settled through negotiations, it may constitute a Water
Disputes Tribunal, within a year after filing complaint.
▪ Our history and experience show that disputes constantly flow
along with the rivers and there is a dire need for speedy
disposal of those disputes with permanent institutional
mechanism
 INTER-STATE WATER DISPUTE TRIBUNALS SET UP SO FAR

Sl. No. Name Set-up in States involved

1 Krishna Water Disputes Tribunal 1969 Maharashtra, KNT, Andhra
Pradesh
2 Godavari Water Disputes Tribunal 1969 Maharashtra, KNT, Andhra
Pradesh, MP, Orissa
3 Narmada Water Disputes Tribunal 1969 Rajasthan, Gujarat, MP,
Maharashtra
4 Ravi and Beas Water Disputes Tribunal 1986 Punjab, Haryana, Rajasthan
5 Cauvery Water Disputes Tribunal 1990 KNT, Kerala, TN, Puducherry
6 Second Krishna Water Disputes Tribunal 2004 Maharashtra, KNT, Andhra
Pradesh
7 Vansadhara Water Disputes Tribunal 2010 Orissa, Andhra Pradesh
8 Mahadayi Water Disputes Tribunal 2010 Goa, KNT, Maharashtra
9 Mahanadi Water Disputes Tribunal 2018 Orissa, Chhattisgarh
 INTER STATE WATER DISPUTES

▪ These tribunals take decades to resolve the disputes. Ravi-Beas took 33 years, while
Cauvery consumed 29 years. Other tribunals have taken around decade each.

▪ Though time limit is five years. Centre goes on extending term of tribunals indefinitely.
Law did not provide any time limit for publishing the report.

▪ Within state of Andhra Pradesh, the people of Telangana were demanding their due
share in Krishna and Godavari rivers. This being an intra state conflict, Telangana had
no right to demand its due. River water is one of a few grounds for demand for
Telangana. Tragedy is that if center refuses or delays such reference or does not
constitute a tribunal, or tribunal takes decades, or its order is not published, or its
published order is not enforced, the state had no remedy atall.
 INTER STATE WATER DISPUTES
SUGGESTIONS
• The NCRWC has emphasized that while enacting the Sarkaria made few more suggestions as follows:
legislation, national interest should be the paramount • There should be a Data Bank and information system at the
consideration as inter-State rivers are 'material resources' national level and adequate machinery should be set up for
of the community and are national assets. Such enactment this purpose at the earliest. There should also be a
should be passed by Parliament after having effective and provision that States shall be required to give necessary
meaningful consultation with all the State Governments. data for which purpose the Tribunal may be vested with
• The Sarkaria Commission in its report at Chapter XVII on powers of a Court.
Inter-State River Water Disputes recommended: Once an • The Act should be amended to ensure that the award of a
application under Section 3 of the Inter-State River Water Tribunal becomes effective within five years from the date
Disputes Act (33 of 1956) is received from a State, it should of constitution of a Tribunal. If, however, for some reasons,
be mandatory on the Union Government to constitute a a Tribunal feels that the five years period has to be
Tribunal within a period not exceeding one year from the extended, the Union Government may on a reference made
date of receipt of the application of any disputant State. by the Tribunal extend its term.
• The Sarkaria Commission also recommended that this Act
• Sarkaria Commission recommended that the Inter-State should be amended so that a Tribunal's award has the same
Water Disputes Act should be amended to empower the force and sanction behind it as an order or decree of the
Union Government to appoint a Tribunal, suo-moto, if Supreme Court to make a Tribunal's award really binding.
necessary, when itis satisfied that such a dispute exists in
fact.
 INTER STATE WATER DISPUTES

Inter State-River Water Dispute (Amendment) Bill, 2019

• As per the recommendations of the Sarkaria Commission, the Centre introduced Inter State-River Water Dispute
(Amendment) Bill, 2019 which proposed to make it mandatory for center to constitute a Tribunal on request or
suo moto if it recognized a dispute.
• Its suggestion to collect data from states was made mandatory in the Bill.
• Thus, the Centre has now no choice after state made a request to refer a dispute to Tribunal, which would be a
permanent body, if the Bill becomes a Law.
• As per this amendment Bill, when a state refers any water dispute, the center shall set up a Disputes Resolution
Committee (DRC), to resolve amicably by negotiation in one year. The DRC will comprise of a Chairperson, and
experts with at least 15 years of experience in relevant sectors, to be nominated by the Centre. It will also
comprise one member from each state (at Joint Secretary level), who are party to the dispute, to be nominated by
the concerned state government.
• Negotiation can be extended by half a year. If a dispute cannot be settled by the DRC, the center must refer it to
the Inter-State River Water Disputes Tribunal within three months from the receipt of DRC report.
• The added merits are that timelines are prescribed, and a permanent tribunal with multiple benches is proposed
be set up dissolving all existing Tribunals will be dissolved.
 INTER STATE WATER DISPUTES
ANALYSIS OF AMENDMENT BILL
• Under the original Act, the decision of the Tribunal must be published by the center in official gazette, only then it will have same
force as that of an order of the Supreme Court. The Bill removes this requirement because tribunals were taking several years to
publish. The Bill adds that the decision of the Bench of the Tribunal will be final and binding on the parties to dispute.
• The Act provided that the central government may make a scheme to give effect to the decision of the Tribunal. The Bill is making
it mandatory for the central government to make such scheme
• Under the Act, the central government maintains a data bank and information system at the national level for each river basin.
The Bill provides that the central government will appoint or authorize an agency to maintain such data bank.

▪ The amendment bill tries to assure that the decision will bind the parties with the same force as an order of the Supreme Court
but does not give any additional binding power. Because states can take the issue to Supreme Court. If the dispute persists even
after order of tribunal, it can be referred for reconsideration. Establishing a multiple bench tribunal simply replaces different
tribunals now working separately.
▪ This bill appears to be addressing demerits of earlier legal mechanism and offering a useful alternative. But it is not that
innocent. The Bill proposed the Centre alone will appoint the chairpersons and others in the Tribunal; Generally, the former
Judges and former civil servants will be posted to the DRC and tribunals. Once a permanent tribunal is established, every
aggrieved state should have a right to submit their dispute with neighboring state to the Tribunal straight, without center's
intervention or approval to refer. But States were not given a right to straight to go to DRC or the Tribunal and file a complaint or
present a petition for resolution of dispute.
 INTER STATE WATER DISPUTES
ANALYSIS OF AMENDMENT BILL
• Earlier the Chairperson and members are appointed by the Chief Justice of India and other Judges, but under the Bill, a
Selection Committee dominated by PM and two Ministers and Chief Justice of India appoints them. The role of judiciary in
appointing the tribunal chairman and members is substantially reduced and presence of CJI may not stop Centre to exercise
their choice.
• As the bill provides for appointment of Chairman & Vice Chairman for five years or 70 years of age whichever is earlier, and of
members up to 67 years of age, the tribunal will become rendezvous of rehabilitation and will render several judges and officers
at their fag end of service to be subservient to the rulers for favor of reappointment in these lucrative positions. On these
grounds it does not offer any enthusiastic atmosphere of integrity and efficiency. Apprehension of denial or deep expectation of
this postretirement position might not allow the judges in office to be independent or objective.
• There could be heavy competition to toe the favor of with executive Government of the day. It can corrupt the system and non-
independent judges might not come. To prevent this the maximum term or duration of the tribunal chairman and members
should not be more than their retirement age. If term is five years or 62 years of age, whichever is earlier, only in-service
experts from judiciary and administration will get an opportunity to get appointed in tribunal with additional incentives.

▪ The amendment is anti-federal legislation that increases the powers of the center and makes states totally dependent on
center, affecting the sovereignty of states. It will not reduce the time taken for resolution of disputes or create a strong
mechanism to enforce the order of the tribunal. This places states at the mercy of center, to resolve its dispute with the
neighboring state. It has failed totally in resolving disputes or enforcing the orders of tribunals. This bill centralizes the
authority and then top body that decides will be filled with former judges and bureaucrats, whose 'independence' or lack of it
decides the fate of rivers. If the states do not resolve their disputes amongst themselves, this bill may give the Centre to take
complete control of rivers and their water at the detriment of states.
 EMERGENCY
• The principle of necessity was well recognized even in ancient India. The great Hindu Jurist of ancient times Manu-the law
giver, recognize "Appad Dharma" as one of the Supreme duties or Dharma of a king as protector of his subjects against
disorder and anarchy.

• The emergency provisions under Indian constitution can be traced back to the British rule in India, when by Act of
parliament crown established its sovereignty over company's territories in India in 1861.

• The Governor General under the provisions exercised wide powers both legislative and executive. He was also given
power to legislate for emergencies.

• These powers were very sparingly used till the outbreak of First World War, but between 1914 to 1918 it was used for
about 26 times. Judicial challenges to invocation of these powers were met with unsuccessful attempts.

• In 1919 the famous Rowlett Act was passed. This law was intended to be used as an emergency measures, very stringent
in nature, it was set out to control the terrorist activities in India.

• Then came the Government of India Act 1919 which reaffirmed the powers of Governor General to promulgate
ordinances in emergency.
 EMERGENCY

Central Power Consolidation Exercise

• National – 352:
• War, external aggression, Armed Rebellion
• Applied to a specific part of India (42CA, 1976) or even the whole country
• Three times- 1962, 1971, 1975
• State – 356:
• Failure of constitutional machinery in a state
• Imposed more than 125 times
• Financial – 360:
• Threat to financial stability or credit of India
• Not imposed so far
 EMERGENCY

OTHER PROVISIONS RELATING TO EMERGENCY

• Art 22 : Nation had gone through the experience of harshness of such powers so there was
discontent about its inclusion. Tremendous misuse of the power was feared which proved right in
the future

• Article 123 and 213: Presidents and the Governor were empowered to issued ordinances if the
situation in their opinion so demands. This power was misused many times by both central and
state governments. The Supreme Court declared that this powered is not immune from judicial
review
 EMERGENCY

EVOLUTION
38th Constitution Amendment Act of 1975- 39th Amendment Act of 1975-
▪ It excluded judicial review of the • It introduced changes in the method of deciding election
satisfaction of President under Article disputes relating to the four high officials of the State,
352(1) viz, president, Vice President, Prime Minister and the
▪ The amendment provided for another Speaker.
proclamation of emergency even when • As regards the President and Vice- President, the basic
there was already one proclamation was in change introduced was that jurisdiction was taken away
existence. from the supreme Court to decide any doubts and
disputes and disputes arising in connection with their
election.
• Elections of the Prime Minister and the speaker to the
Parliament were also taken out of the election dispute
settling mechanism envisaged in Art.329.
 EMERGENCY
42nd CA, 1976
• It is the most controversial and debatable of constitutional amendments ever undertaken in India
• The most objectionable feature was that it was undertaken during emergency period, when most of the opposition leaders were detained
in jail under preventive detention.
• Some of the changes were intended towards more powerful executive away from Judicial scrutiny

44th CA, 1978

• The expression "internal disturbance" was substituted with the expression "armed rebellion."
• The advice to the President to proclaim emergency shall be rendered by the Cabinet in writing. The Emergency Proclamation, which was to
be approved by both houses of parliament by resolution, passed by a simple, majority was amended to be approved by special majority.
• The proclamation once approved could remain in force for any length of time without fresh parliamentary approval. Now this amendment
provided for its continuance for the period, which could be continued for a further period of 6 months if approved again.
• Ten percent or more members of Lok Sabha can consider a bill for disapproving the proclamation.
• The jurisdiction of the high court to issue writs in the nature of Habeas Corpus will not be suspended so far as Articles 20 & 21 is concerned.
• It provided that a person cannot be detained beyond 2 months unless the detention has been approved by the Advisory board and the
power conferred on the parliament to provide for longer period has been taken away.
• The most remarkable change the amendment made to Article 359 was to the effect that fundamental rights guaranteed by the Articles 20 &
21 could not be suspended by Presidential order under Article 359
• SC review instated
 EMERGENCY

ISSUES
• Armed rebellion has not been defined. How many rebels or what types of
arms, over what territorial area would constitute armed rebellion.
• Does the written cabinet advice to the President provide additional
safeguards against the misuse emergency powers? According to him only
'ministers with moral courage' could be trusted under this provision.
• Structural weakness of the proposed safeguards against emergency control
mechanism is that they do not prevent the dissolution of Lok Sabha during
emergency
• As malafide proclamation of emergency is being made justiciable there is
doubt that judiciary alone can provide an institutional safeguard for
ensuring that the emergency powers are not misused
 LOCAL SELF GOVERNEMENT

HISTORICAL CONTEXT
In the Rigvedic period, i.e. around 1200 B.C. there were ▪ Further in the Montego Chelmsford Reforms that were
Sabha that has the primary function of the carried out in 1919, right after the World War I wherein
administration of the area. This concept of Sabha England was not in a strong position, some autonomy
gradually converted to the panchayat and it was so to the provincial government was given to the
called because it was headed by 5 people provincial government and some powers were given to
the elected representatives.
• In the Medieval period, the Panchayati system
deteriorated because of the increase in the Zamindari ▪ There were two separate Lists under the laws, one for
system in the rural areas. the Governor and second for the elected local
• With the change in the dynasties ruling India, the representatives.
concept of Kotwal came with the Mughal era whose task ▪ Further, under the Government of India Act, 1935 all
was to undertake the administration of the area assigned, the powers were taken back because both the lists that
to collect tax and other incidental functions. were legislated were repealed and therefore the
• In the British era, the Government was not in favor of decentralization was again withdrawn.
any decentralization, therefore after the mutiny of 1857,
they came with the Government of India Act, 1858 and
removing the decentralization
 LOCAL SELF GOVERNEMENT
POST 1947
• Panchayati Raj was kept under the heads of Directive Principles of State Policy under Part IV of the Constitution
mainly because of the political instability of the new government and the paucity of funds and therefore it was not
practically possible for the newly formed India
• Balwant Rai Mehta Committee, 1957: this committee mainly it advocated for the basic level of administration be at
the Block level.
• K. Santhanam Committee, 1963: advocated that the Panchayati Raj Institution (PRI) be given the powers to levy tax
and it should become as the main source for the funding of the institution.
• Ashok Mehta Committee, 1978: This committee suggested that the Panchayati Raj Institute shall be a two tier body
which should operate at the Zilla level and the Mandal level. The nodal area would be at the Block Level (taken care
of by the Block Development Officer) and Zilla Parishad shall have an advisory role to both, the State Government and
to the Block level institution.
• G.V.K. Rao Committee, 1985: this committee again advocated for a three tier system. It said that the PRIs should be at
district and local level. The District Development Officer (DDO) shall be appointed for the main administration of the
village units.
• L.M. Singhvi Committee, 1986: this committee advocated that in order to establish a governing body for any part of
India, it must be given a Constitutional structure. As a result, 73rd Amendment was made to the Constitution and
Part IX A was inserted as PANCHAYATS.
 LOCAL SELF GOVERNEMENT
BASIC FEATURES
Established in 1992 by the 73rd and 74th Amendment to the Constitution – the Panchayati Raj and the Municipality. Features include:
• 3 tier system for rural and 2 tier system for urban
• Minimum age for voting is 18 years
• Minimum age for contesting election is 21 years
• 1/3rd of seats reserved for women at all levels
• Reservations introduced for SC/ST category of persons
• Introduction of two bodies – State Election Commission and State Finance Commission
 Legislative Executive
Local Self Rural Urban
Govt Rural Urban
Elected Permanent Elected Permanent
Zilla Parishad Municipality/ Head, Civil Police Mayor Civil Police
Municipal Council +
Council/ ADM + SP + ASP + Council ACP +
DM/Commissi
District Municipal Officers Officers oner + Officers
Corporation Officers

- - - SDM + SDPO + - SDM + SDPO +

Sub Division Officers Officers Officers Officers
Panchayat Samiti - Head of Block IC + Officers - City executive -
Panchayat Development (since no Officers +
Samiti, Officer + legislative Officers
Block rep here)
Council Officers

Gram Sabha Ward Sarpanch, Section Constable Head Section Constable

Panchayat Officers of Officers
Ward/
Village Wards
+
Council
 LOCAL SELF GOVERNEMENT

THE STATUS OF PRIS CAN BE REVIEWED CONDUCT OF PANCHAYAT

IN TERMS OF FOLLOWING
PARAMETERS: ELECTIONS:
As a result of election to PRIs in
(i) Conduct of Panchayat elections; States/Union Territories, 2,27,698
Panchayats at village level, 5906
(ii) Devolution of Financial Powers; Panchayats at intermediate level and 474
(iii) Devolution of Functions and Panchayats at the district level have been
constituted in the country. These
Functionaries; Panchayats are being manned by about 34
(iv) Constitution of District Planning lakhs elected representatives at all levels;
Committees (DPCs); of them one-third are women. This is the
broadest representative base that exists in
(v) Status of Gram Sabha; any country in the ward.
(vi) PESA of 1996;
(vii) Checks and Balances over PRIs
and Accountability
 LOCAL SELF GOVERNEMENT

DEVOLUTION OF FINANCIAL POWERS TO PRIs

• The recommendations of the State Finance Commissions can be divided into three categories:
• (i) assignment of taxes, duties, levies and tolls to local bodies;
• (ii) sharing of revenue proceeds; and
• (iii) transfers on account of grants-in-aid and other financial assistance.
• Many of the State Governments have agreed to give PRIs a specific percentage of share in some
of the State taxes like land revenue and cess on it, additional stamp duty, entertainment tax,
royalties on minerals and mines, forest revenue and market fees; these taxes are less buoyant in
nature and have no relation to the powers and functions to be devolved upon Panchayats.
• All SFCs have put great emphasis on internal revenue mobilization, but none has suggested any
effective mechanism for PRIs to generate their own revenue
• However, the SFCs suggest better use of the existing tax jurisdiction by referring the system of
property taxation and giving greater autonomy to local bodies in matters relating to tax rate
setting
 LOCAL SELF GOVERNEMENT

• Till such time that they are financially dependent on funds from the State Governments, the State
Budgets should specify the amount earmarked for district sector plans under Panchayati Raj as also
their distribution among the three tiers. It is suggested that 30-40 percent of a State's Plan be devolved
on local bodies as already done in the State of Kerala.
• In addition, a part of the finances should be in the form of untied funds so that the funds can be
utilized as per the felt needs of the Panchayats.
• Training and capacity building of PRI functionaries is essential and devolution of financial resources
must be accompanied by suitable strengthening of PRIs through transfer of departmental
functionaries.

DEVOLUTION OF FUNCTIONS AND FUNCTIONARIES

▪ Initiatives such as taken by Madhya Pradesh, and Kerala need to be taken by all the States and Union Territories
if Panchayats are to be established as institutions of local self-government.
▪ In respect of the 29 subjects identified in the Eleventh Schedule it is necessary for the State Governments to
clearly identify what would be done by the three tiers of Panchayats at their levels.
▪ NO STATE HAS TRANSFERRED ALL 29 SUBJECTS
 LOCAL SELF GOVERNEMENT
In short, Local-self government: formative to contemporary stage

Formative phase- ‘functions, functionaries and Contemporary stage- ‘functionality’

funds’
• Initiatives like MP and Kerala should be taken by • Encroachment in their functioning by various
all States and UTs parastatal bodies of the state such as water
development bodies, smart cities special
• In respect of the 29 subjects under the Eleventh
Schedule, State govts need to clearly identify the purpose vehicle
functions of the various tiers of Panchayats at • Appointment of the Commissioner by the state
their levels in the Municipal bodies and Gram Sevak at
Panchayat level
• No State has transferred all 29 subjects
• Lack of capacity to deal with issues such as
• Devolution of financial powers are decided by the climate change, suburban sprawl, demographic
SFC dividend etc
• Emphasis has been put on internal revenue
mobilization, but none have suggested measures
for PRIs to generate their own revenue
 LOCAL SELF GOVERNEMENT

CONSTITUTION OF DISTRICT PLANNING COMMITTEES (DPCS):

• Despite long years of delay, many States are yet to constitute the DPCs. Only nine States,

namely, Haryana (just in 3 Districts), Karnataka (10 out of 27 districts), Kerala, Madhya

Pradesh, Rajasthan, Sikkim, Tamil Nadu, Tripura and West Bengal and two Union Territories,

namely, Andaman & Nicobar Islands and Daman & Diu have taken action to constitute DPCs

• In Kerala, a Voluntary Technical Corps (VTC) has been created consisting of about 10,000

technical experienced people to vet and re-work projects prepared by the panchayats.
 LOCAL SELF GOVERNEMENT

STATUS OF GRAM SABHA

• It has been observed that most of the State Acts have not spelt the powers of Gram Sabhas
nor have any procedures been laid down for the functioning of these bodies.
• For instance,
• (i) the law in most States prescribed at least two meetings of the Gram Sabha in a year.
Unfortunately, the minimum has been interpreted as a maximum.
• (ii) Provision doing away with the need for quorum for adjourned meetings of the Gram
Sabha has reinforced the tendency to view Gram Sabha meetings as a mere formality;
• (iii) State laws set out highly ritualistic functions for the Gram Sabhas.
• Gram Sabhas are to recommend and suggest, consider annual accounts, administrative
reports, audit notes, etc. These suggestions and recommendations of the Gram Sabhas could
be ignored by the Gram Panchayat.
• It may be confined to a single village or may span 2-3 villages. Where the Gram Sabhas cover
more than one village, their meetings qualitatively are seen to be very poor.
 LOCAL SELF GOVERNEMENT

PANCHAYATS (EXTENSION TO SCHEDULED AREAS) ACT, 1996

• The provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 (PESA) have come into force on 24th December
1996
• The Act extends Panchayats to tribal areas of eight States namely, Andhra Pradesh, Bihar, Gujarat, Himachal Pradesh,
Maharashtra, Madhya Pradesh, Orissa and Rajasthan
• Enable tribal society to assume control of its own destiny to preserve and conserve the traditional rights over natural
resources.
▪ It gives radical self-governance powers to the tribal community and recognizes its traditional community rights over
natural resources.
▪ Prior to passage of this Act, laws passed by central and state governments were applied mechanically to tribal areas even
when these contravened traditional tribal practices and institutions
▪ In fact this is the first law that empowers people to redefine their own administrative boundaries

▪ PESA provides that the tribal gram Sabha so defined would be empowered to approve all development plans, control all
functionaries and institutions of all social sectors as well as control all minor water bodies, minor minerals and non-
timber forest resources.
 LOCAL SELF GOVERNEMENT
ISSUES
• Implementation of the law has been severely hampered by the reluctance of most state governments to make laws and rules
that conform to the spirit of the law.
• Enforcement of PESA is perceived as weakening the stranglehold of the forest bureaucracy, and it is instructive to study the
interpretation of PESA favored by the state governments for attempts to minimize the bureaucratic loss of control.
• Governments to make appropriate amendments in their State Laws which impinge on specific provisions contained in the
Central Act namely
• (i) Land Acquisition Act;
• (ii) Excise Act;
• (iii) State Irrigation Act;
• (iv) Minor Forest Produce Act;
• (v) Mines and Minerals Acts;
• (vi) Land Revenue Code / Act;
• (vii) SC/ST Land Alienation Act;
• (viii) Money Lenders Act; and
• (ix) Regulated Market Act. No doubt, some State Governments (MP) have already amended some of the relevant Acts;
others are yet to follow suit.
 LOCAL SELF GOVERNEMENT

CHECKS AND BALANCES OVER PRIs & ACCOUNTABILITY

• Under the State laws, wide powers of suspension and dismissal have been vested in the State bureaucracy. This
straightaway places Panchayati Raj Institutions in a position of disadvantage vis-a-vis even middle rung functionaries
of State Governments.
• Another important aspect of the administrative restructuring process is the merger of District Rural Development
Agencies (DRDAs) with Zilla Parishads. In the light of the 73 Constitution Amendment Act, DRDAs need to be
restructured to suit the changed scenario. They should work under the overall control and supervision of the Zilla
Parishads.
• Instances have been reported where the Gram Panchayat Sarpanches have to spend a good lot of time visiting
Block Offices and of harassment by Block level officials
• The three tiers also compete for funds and powers. The lower tiers are normally the losers in this process. This
would make decentralized development, within a district plan, infructuous and non-sustainable
• A massive awareness generation programme needs to be taken up to inform Gram Sabhas about their rights in
planning, implementation and audit of development programmed and in control over natural resources, land
records and conflict resolution.
 LOCAL SELF GOVERNEMENT

WAY FORWARD
• Popular projects undertaken by the Panchayats by utilizing funds granted by the
Finance Commission are Road Construction and maintenance and supply of drinking
water.
• The Garib Kalyan Rozgar Abhiyan has been launched to actively engage Panchayats in
generating employment for newly returned migrant workers displaced due to the
COVID-19 pandemic; with the Chief Ministers of Bihar, Jharkhand, Punjab, Himachal
Pradesh, Rajasthan, Kerala and Odisha holding regular video-conferences with
Sarpanches to review measures taken to curtail the COVID-19 pandemic and generate
employment.
• Rashtriya Gram Swaraj Abhiyan
• Launched for the period of April 2018 to March 2022 with the primary aim of strengthening Panchayati Raj
Institutions (PRIs) for achieving Sustainable Development Goals.
• The emphasis has been on strengthening Panchayati Raj institutions by ensuring basic orientation training for the
Elected Representatives of Panchayats, within six months of their election and refresher trainings within 2years.
• Introduction and increased use of e-governance and technology driven solutions at Panchayat level is key for
attaining increased administrative efficiency, improved service delivery, and greater accountability.
 LOCAL SELF GOVERNEMENT

LSG IN TIMES OF COVID-19

• Gram panchayats in Odisha worked to ensure that beneficiaries under the ration distribution
schemes announced by the Central Government received their entitlement under the public
distribution system in advance for three months.
• In Sukma, a tribal district in Chhattisgarh, the gram panchayat provided ration to families without
waiting for supplies from the state government.
• Community kitchens have been set up to provide cooked food for those without access to rations.
• In Chhattisgarh’s Kanker district, Sivni gram panchayat’s self-reliance in vegetable production is
inspirational.
• Gram panchayats across India are supporting transiting migrants, and employment is being
generated for displaced migrants.
• In many cities, Municipal councils have taken an initiative to sell ‘vegetables on wheels’ to its
citizens, so that they do not have to step out of the house to procure them, limiting their contact as
far as possible. THANK YOU