MAINS MASTER PROGRAM (MMP) 2025
POLITY- 6
FEDERALISM
Separation of Powers between various organs
Separation of Powers
Philosophy that the function 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
Checks & Balances not clear Separation of Powers
Executive & Legislature – Judicial Review
S
Executive – Majority in Legislature
IA
Judges – Removal by the legislature
Areas of Conflict
P
Promulgation of Ordinance [Legislature Vs Executive]
U
Judicial Activism / Overreach / Adventurism [Judicial Vs Legislature &
el
Executive]
v
Public Interest Litigation
Le
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
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Judicial Activism
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, 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]
Proactive judiciary is welcome but at the same time judiciary should be
subject be accountable like any other organ & also should respect the
doctrine of separation of powers.
Questions
1. What do you understand by doctrine of separation of powers? Do you agree with the 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]
Previous Year Questions
Separation of Powers between various organs
1. Judicial legislation is antithetical to the doctrine of separation of powers as envisaged
in the Indian Constitution. In this context justify the filing of large number of public
interest petitions praying for issuing guidelines to executive authorities.
2. Do you think the Constitution of India does not accept the principle of strict
separation of powers rather it is based on the principle of ‘checks and balance’?
Explain
3. Resorting to ordinances has always raised concern on violation of the spirit of
separation of power doctrine. While noting the rationales justifying the power to
promulgate, analyse whether the decision of the Supreme Court on the issue have
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further facilitated to resorting to this power. Should the power to promulgate the
ordinances be repealed?
4. Explain the reasons for the growth of public interest litigation in India. As a result of
it, has the Indian Supreme Court emerged as the world’s most powerful judiciary?
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
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.
Legal Services Authority Act, 1987
Free legal aid to poor & awareness
Alternate dispute resolution through Lok Adalat [Compoundable offences – Civil
& criminal]
Authorities - National Legal Services Authority, Supreme Court Legal 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.
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2021 Amendment – unconditional stay on enforcement of arbitral awards if
induced by fraud or corruption.
India International Arbitration Act, 2019
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 services
etc.
Advantages of ADR
Less Adversarial
Less complexity
Cost effective
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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Previous Year Questions
Dispute Redressal Mechanisms and Institutions.
1. Who are entitled to receive free legal aid? Assess the role of the National Legal
Services Authority (NALSA) in rendering free legal aid in India.
2. What are the major changes brought in the Arbitration and Conciliation Act, 1966
through the recent ordinance promulgated by the President? How far will it improve
India’s dispute resolution mechanism? Discuss.
3. Explain and distinguish between Lok Adalats and Arbitration Tribunals. Whether they
entertain civil as well as criminal cases?
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
Legislative Relationship
Art. 245 - application of laws made by parliament
Art. 246 – extent to which parliament can make laws (schedule VII)
Art. 248 – residuary powers
Federal Supremacy [Principle that asserts the primacy of the central authority over 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
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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.
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
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 census
for horizontal distribution
Increase in non-divisible pool of resources [cess & surcharge]
Centrally sponsored scheme
Reduction in financial powers because of GST
More discretionary grants [Article 282]
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
Co-operative Federalism
units of federation co-operate with one another (Centre & States)
Examples – NITI Aayog; GST Council; Interstate Council; Zonal Councils etc.
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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; Not to
misuse Article 356
Financial – Reduction in cess & surcharge
Rajamannar Committee
Financial – more divisible pool of revenue; more items to states
Legislative – centre not to make laws affecting state interest, approval of
inter-state council
NCRWC
Mandatory consultation with states while centre making laws on concurrent
list
S
Questions
IA
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]
P
2. Indian federalism is not only characterised as quasi-federal but also asymmetrical in nature.
U
Comment [10 Marks]
el
3. Indian federation in the recent past is characterised by cooperation, competition &
confrontation. Do you agree? [15 Marks]
v
Le
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
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)
69 Constitutional Amendment Act, 1991 – Art. 239AA
th
Art. 239 – president to administer through an administrator
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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
substantial policy matter or rationally sound
constitutional objectivity & not to obstruct state govt. administration
no need for concurrence of the governor in every matter
executive power co-terminus with legislative power
Supreme Court, 2023
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]
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
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External agency to maintain a data bank at national level for every river basin
Question
1. How far do you think the Inter-State River water disputes amendment bill, 2019 can address
the structural or the process inadequacy in the present legal framework? [10 Marks]
Previous Year Questions
1. Account for the legal and political factors responsible for the reduced frequency of
using Article 356 by the Union Governments since mid-1990s.
2. The jurisdiction of the Central Bureau of Investigation (CBI) regarding lodging an FIR
and conducting probes within a particular state is being questioned by various States.
However, the power of States to withhold consent to the CBI is not absolute. Explain
with special reference to the federal character of India.
3. How far do you think cooperation, competition and confrontation have shaped the
nature of federation in India? Cite some recent examples to validate your answer.
4. From the resolution of contentious issues regarding the distribution of legislative
powers by the courts, the ‘Principle of Federal Supremacy’ and ‘Harmonious
Construction’ have emerged. Explain.
5. Whether the Supreme Court Judgement (July 2018) can settle the political tussle
between the Lt. Governor and elected government of Delhi? Examine.
6. Discuss the essentials of the 69th Constitutional Amendment Act and anomalies, if
any, that 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?
7. Though the federal principle is dominant in our Constitution and that principle is one
of 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.
8. The concept of cooperative federalism has been increasingly emphasised in recent
years. Highlight the drawbacks in the existing structure and extent to which
cooperative federalism would answer the shortcomings.
9. What changes has the Union Government recently introduced in the domain of
Centre-Stare relations? Suggest measures to be adopted to build the trust between
the Centre and the States and for strengthening federalism.
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