MAINS MASTER PROGRAM (MMP) 2024

POLITY – 4
SEPARATION OF POWERS BETWEEN VARIOUS ORGANS

Separation of Powers
 Philosophy that the functions of the state is divided between three distinct organs
who act separately & independently of one another with distinct functions to avoid
totalitarian state & protect liberty of the people.
 Constitutional Provisions
 Article 50 – Separation of Judiciary from Executive
 Article 53 & Article 154 – President & Governors head of union & state Executives
respectively
 Article 246 – Parliament & state legislature to make laws on their respective
areas
 Article 122 & 212 – Judiciary not to interfere with legislative proceedings
 Article 121 & 211 – prohibit the members of parliament and state legislature
discussing the conduct of the judges in the houses
 Article 13 – judicial review of legislative & executive actions violative of
fundamental rights
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 Checks & Balances not clear Separation of Powers

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 Executive & Legislature – Judicial Review

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 Executive – Majority in Legislature

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 Judges – Removal by the legislature

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 Areas of Conflict
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 Promulgation of Ordinance [Legislature Vs Executive]

 Judicial Activism / Overreach / Adventurism [Judicial Vs Legislature & Executive]
 Public Interest Litigation
 Litigation filed in the interest of the public relaxing the traditional doctrine of
locus standi [Social activist or social action group]
 Arguments in favour
 Judicial Activism [E.g., Menaka Gandhi Case, 1978]
 Protection of Human Rights [E.g., Hussainara Khatoon case, 1979; Sheela
Barse case, 1983, Pavement Dwellers case etc.]
 Fills legislative vacuum [Vishaka Case, Good Samaritan guidelines etc.]
 Address executive inactions [Pollution control, ragging in colleges, control
of loudspeakers etc.]
 Arguments against
 Judicial Adventurism/overreach
 Violation of doctrine of separation of powers
 Misuse for vested interest
 Judicial Activism

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  Philosophy that judges may go beyond the precedents taking into consideration
the protection of rights & the broader societal implications of such decisions.
 Illustrations – Vishaka Guidelines, Pavement Dwellers case, undertrials, torture
in prisons, bonded labours etc.
 Judicial Adventurism / Overreach
 Philosophy where the judiciary ventures into the domain of other two organs of
the state & disturbs the constitutionally set equilibrium even when no
constitutionally guaranteed rights are affected.
 Judicial intervention in matters of administration & governance
 Illustrations – supreme court rulings on interlinking of rivers, banning liquor
shops in national highways, public auction of 2G spectrum against TRAI advice
etc.
 Judicial Restrain [Way Forward]
 Cautious exercise of powers [should not invalidate policy or law unless violative
of the constitution]
 S.P Gupta Vs UoI, 1982 – Guidelines for PIL
 Scrutiny of PIL before admission [Bonafide interest]
 Impose cost on petition with ulterior or oblique motive
[Publicity/Personal/Political]
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 Proactive judiciary is welcome but at the same time judiciary should be subject
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be accountable like any other organ & also should respect the doctrine of
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separation of powers.
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Questions
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1. What do you understand by doctrine of separation of powers? Do you agree with the
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view that our constitution does not provide for strict separation of powers rather a
system of checks & balances? [10 Marks]
2. “Public Interest Litigation paved the way for the common man, disadvantaged and the
marginalised sections of the society to have access to courts and ensure justice”.
Comment [10 Marks]
3. Public Interest litigation is a good thing when it is used to enforce rights of the
disadvantaged and it should not interfere with the power of the government to take
decisions on a range of policy matters. Do you agree? Substantiate your views with
suitable illustrations. [15 Marks]

Dispute Redressal Mechanisms and Institutions.

Alternate Dispute Resolution

 What is ADR?
 Alternate Dispute Resolution is an out of Court settlement (or) alternate way of
settling disputes outside court rather than litigation in courts.
 Features of ADR

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  Non-Adversarial
 Discussion & Negotiation
 No Rigid Procedure
 Win-Win Situation
 Legal Framework for ADR in India
 Sec.89 of Civil Procedure Code the court may allow parties to settle disputes
through Arbitration, Conciliation & Mediation.
 Arbitration
 Dispute is submitted to an arbitral tribunal
 Procedure is less complex
 Award is passed by the arbitral tribunal & binding on parties
 Conciliation
 Third party facilitates communication between the parties in dispute
 Discretionary and non-binding technique to resolve disputes
 Parties arrive at a settlement then it can be endorsed by a conciliator
 Mediation
 Third party facilitates communication between parties in dispute but
cannot pass orders
 The parties have come to an agreement or decision themselves.
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 Legal Services Authority Act, 1987

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 Free legal aid to poor & awareness

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 Alternate dispute resolution through Lok Adalat [Compoundable offences

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– Civil & criminal]

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 Authorities - National Legal Services Authority, Supreme Court Legal

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Services committee, State Legal services Authority, High Court Legal

Services Committee, District Legal Services Authority, Taluk Legal Services
Committee
 Nature of cases – Pending or yet to be filed
 Example – Public utility services, Motor-accidents, Labour laws,
Matrimonial & Property related disputes etc.
 Arbitration & Conciliation Act, 1996
 Objective – to keep pace with international arbitration standards in
commercial disputes [Arbitration & Conciliation]
 2015 Amendment – time bound arbitral proceedings, ensure neutrality of
arbitrators.
 2019 Amendment – institutionalisation of arbitration & reduce adhocism.
 2021 Amendment – unconditional stay on enforcement of arbitral awards
if induced by fraud or corruption.
 India International Arbitration Act, 2019

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 Objective – Incorporation of international arbitration centre [creating
independent, autonomous, & world class body for facilitating institutional
arbitration and institution of national importance]
 Role – Infrastructure, legal & administrative expertise to arbitrators,
empanelling arbitrators, world class services etc.
 Mediation Act, 2023
 Standalone legislative framework providing for pre-litigation mediation by
disputing parties
 Institutionalization of mediation & identifying various stakeholders
providing a robust mediation ecosystem in India.
 Mediation Council – registration of mediators, Mediation service providers
& mediation institutes.
 Confidentiality of mediation process & online mediation
 Time bound mediation settlement [180 days]
 Provisions for withdrawal from mediation
 Certain cases that cannot be mediated [E.g., Minors, prosecution in
criminal cases etc.]
 Final Agreement [Writing, signed by parties & authenticated by mediator]
 Challenges – Training of mediators, Advocates [Adversarial], ecosystem
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services etc.
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 Advantages of ADR
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 Less Adversarial
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 Less complexity
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 Cost effective
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 Timely dispensation of justice

 Alternate to conventional court system
 Reduce pendency of cases
 Way Forward
 Awareness Generation
 Infrastructure & ecosystem services
 Training – Co-mediation & shadow mediation
 Go long way in reducing burden in the traditional court system

Questions
1. What do you understand by Alternate Dispute Resolution Mechanism? Highlight some of
its advantages & challenges in the context India as a method of dispensing Justice. [10
Marks]
2. Brief comment on the various legal mechanisms available for Alternate dispute resolution
in India. [10 Marks]
3. Mediation Act, 2023 can go long way in institutionalisation of mediation in India. Discuss
[10 Marks]

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Functions and Responsibilities of the Union and the States, Issues and Challenges
Pertaining to the Federal Structure

Federalism
 Historical Context
 GOI Act, 1919 – Devolution Powers
 GOI Act, 1935 – Decentralisation (Size & Diversity but to ensure unity and
Integrity more power to central authority)
 Cabinet Mission Plan (More power to states & States Autonomy)
 Mountbatten Plan & Partition
 Constituent Assembly (Federalism with strong centre)
 Princely States (Centrifugal forces)
 Union of States (B R Ambedkar)
 Federation with strong centre; federation with unitary bias; federation with
centralising tendency.
 Constitutional Provisions (Division of Powers)
 Legislative
 Executive
 Financial
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 Legislative Relationship
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 Art. 245 - application of laws made by parliament

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 Art. 246 – extent to which parliament can make laws (schedule VII)
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 Art. 248 – residuary powers

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 Federal Supremacy [Principle that asserts the primacy of the central authority over
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state authority]
 Art. 249, 250, 252, 253, 356 – Parliament can legislate on an item in state list
 Art. 254 – inconsistency between parliament & state laws
 Art. 3 – parliament can reorganise the states
 Art. 200 – governor can reserve bills for consideration of president
 Art. 248 – residuary power to parliament
 Principles to resolve federal disputes over legislations
 Principle of Harmonious Construction - the conflict between provisions of two
different statutes or two sections of a same statute should be harmoniously
constructed (Kerala education bill, 1957)
 Doctrine of pith & Substance [“True nature and character”] – the concept
holds that, if the challenged statute is fundamentally within the legislative
competence of the legislature that enacted it but only incidentally encroaches
on the legislative field of another legislature then the law should be considered
valid (State of Bombay Vs F N Balsara, 1951)
 Doctrine of colourable legislation – When a legislature lacks the power to
directly enact a law on a particular subject matter then it cannot do so
indirectly as well.

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 Executive Relationship
 Art. 256 – Executive relationship between union and states [executive power
of every state shall be so exercised as to ensure compliance with law made by
parliament and existing laws that apply in the state and the executive power
of the union may extent to giving such directions to the state]
 Art 365 – effect of failure to comply with directions given by centre
(constitutional breakdown)
 Art. 356 – President rule
 Contemporary Issues
 Citizenship Amendment Act, 2019
 Amendment to AIS cadre rules
 Citizenship Amendment Act, 2019
 Extension of BSF Jurisdiction up to 50 Kms (Punjab, W.B & Assam)
 NEET examination
 Financial Relationship [Fiscal Federalism]
 Financial relationship between national & subnational governments in terms
of financial powers & responsibilities.
 Issues related to fiscal federalism
 Finance Commission – terms of reference unilaterally by centre, 2011
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census for horizontal distribution

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 Increase in non-divisible pool of resources [cess & surcharge]

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 Centrally sponsored scheme

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 Reduction in financial powers because of GST

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 More discretionary grants [Article 282]

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 Statutory borrowing limits

 Asymmetric Federalism
 A form of federalism in which the division of powers between the national &
sub-national governments are not uniform. That is, the state governments may
have different levels of autonomy.
 Advantage – better accommodation & integration, respect to cultural diversity
& sensitiveness to differences.
 Example
 Article 370 – Special status to J&K [inoperative presently]
 Article 371 – developmental boards to backward regions in
Maharashtra & Gujarat.
 Article 371A – Protects Naga customary law & procedure and
governor’s responsibility to protect law & order
 Vith Schedule – Administration of tribal areas in Assam, Meghalaya,
Tripura & Mizoram
 Emerging trends in federalism
 Cooperative, Competitive & Combative federalism

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  Co-operative Federalism
 units of federation co-operate with one another (Centre & States)
 Examples – NITI Aayog; GST Council; Interstate Council; Zonal Councils
etc.
 Competitive federalism
 state compete with one another & centre create a platform
 Example – 15th FC performance-based indicators; NITI Aayog
(aspirational district program); NITI Aayog index on water
management, multidimensional poverty, State health etc.
 Combative / Confrontational federalism
 Relationship where there is lack of trust, friction & conflict between
centre and states
 Example – GST compensation fund; AIS rules change by centre; states
withdrawing general consent to CBI; Opposition to NEET etc.
 Recommendations by Expert bodies [Way Forward]
 Sarkaria / Punchhi Commission
 Legislative – Residuary powers to states; states to be consulted while
making laws in concurrent list
 Executive – consultation with states before deploying armed forces;
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Not to misuse Article 356

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 Financial – Reduction in cess & surcharge

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 Rajamannar Committee
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 Financial – more divisible pool of revenue; more items to states

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 Legislative – centre not to make laws affecting state interest, approval

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of inter-state council
 NCRWC
 Mandatory consultation with states while centre making laws on
concurrent list
Questions
1. “Though the constitution provides for a federal political system it is not a true federation
rather it is a federation with unitary bias”. Comment [15 Marks]
2. Indian federalism is not only characterised by quasi-federal but also asymmetrical in
nature. Comment [10 Marks]
3. Indian federation in the recent past is characterised by cooperation, competition &
confrontation. Do you agree? [15 Marks]
4. Federalism in India is more an aspiration than reality. Discuss [15 Marks]
5. Comment on the following Doctrines
a) Federal Supremacy
b) Harmonious Construction
c) Pith & Substance

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Tussle Between elected govt. of Delhi & the Lt. Governor
 Historical Background
 Delhi (Part C – state); Legislative Assembly (Govt. of Part C states act, 1951)
 States Reorganisation Act, 1956 – Normal Union Territory
 Popular demand for statehood; S Balakrishnan Committee (1987); Rejected
the idea of full statehood; Mid-way between state & Union Territory (UT with
legislative Assembly & CoM’s)
 69th Constitutional Amendment Act, 1991 – Art. 239AA
 Art. 239 – president to administer through an administrator
 Art. 239 AA – special provisions regarding Delhi
 NCT of Delhi; Lt. Governor; Legislative Assembly; COMs appointed by
president; Law making power to legislature except entry – 1, 2 and 18; Lt.
Governor to act on aid & advice of COM’s
 Art. 239 AA (4) – in case of difference of opinion Lt. governor can seek opinion
of president
 Supreme court, 2018
 Delhi not a full-fledged state & Lt. Governor not a full-fledged Governor
 Lt. Governor is not an independent decision-making authority
 Any matter under Art. 239 AA (4) does not amount to every matter
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 substantial policy matter or rationally sound

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 constitutional objectivity & not to obstruct state govt. administration

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 no need for concurrence of the governor in every matter

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 executive power co-terminus with legislative power

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 Supreme Court, 2023

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 NCT to have legislative & Executive powers over services expect public order,
Police & Land
 GNCTD Amendment Act, 2023
 Powers to legislate over services
 National Capital Civil Services Authority [NCSSA] – final authority to appoint &
transfer officers
 LG discretionary power in summoning, prorogation & dissolution of the
assembly
 Authorises the secretaries to bring to notice of LG, CM & chief secretary
provisions that may in controversy with the central government.
 Criticism
 Violates triple chain of command
 Violative of principle of parliamentary democracy
 Violates principle of collective responsibility
Question
1. Critically examine the provisions of the GNCTD amendment act, 2023. [10 Marks]

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Inter- State River water disputes
 Constitutional / Legal provisions
 Art. 262
 Inter- State River water disputes act, 1956
 Structural or process inadequacy in the present system
 Pre-negotiation process [no representation from states]
 Ad-hoc tribunals take long time to appoint & time duration much longer
 Lack of expert assistance
 Politicisation [need to publish award in official gazette]
 Absence of authoritative water data
 Inter-State River water disputes Amendment bill 2019
 Dispute resolution committee (DRC) – Representation from both centre &
states
 Permanent Tribunal with Multiple benches
 Expert representation in every bench apart from judicial member
 Reduction in time frame – 2 + 1 year
 Requirement for gazette notification removed
 External agency to maintain a data bank at national level for every river basin
Question
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1. How far do you think the Inter-State River water disputes amendment bill, 2019 can
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address the structural or the process inadequacy in the present legal framework? [10
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Marks]
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2nd Floor, 45 Pusa Road, Opp. Metro Pillar 128, Karol Bagh, New Delhi-110005
Ph: 08045248491, 7041021151 | Email: students@levelupias.com