LOCAL SELF GOVERNMENT

Introduction:
Local self-government and its historical evolution is a transformative concept
that brings governance authority to the grassroots level of society.

It encourages active participation and administration by those who understand

the intricacies and needs of their local communities.

Local self-government and its historical evolution, an essential pillar of

democracy, has played a significant role in shaping the governance landscape of
India. Local self-government has been pivotal in decentralizing power, fostering
community participation, and addressing the diverse needs of India’s vast
population.

India’s governing structure is a multi-tiered system that encompasses the central

government, state governments, and local self-government bodies.
At the grassroots level, local self-government bodies play a pivotal role in
democratic governance. These bodies consist of democratically elected
representatives who empower communities to manage their own affairs
effectively.
India’s local self-government system has evolved over the years and
encompasses various forms, reflecting the country’s diversity and commitment
to participatory governance.
Meaning:
The Local Self Government is the body that provides services to the citizens of
India to address their concerns at the grassroots level. To look after the
administration of a town, village, or city, the Local Self Government was
created. If you look at the governing structure of India, then you will find out
that it is made up of three tiers – central government, state government, and
Local Government in India.
Definition:
 L. Golding has defined Local Government in the simplest way. To him,
“Local Government is the management of their own affairs by the people
of a locality.”
 V. Venkata Rao points out that “Local Government is the part of
government which deals mainly with local affairs, administered by
 authorities to the state government but elected independently of the state
authority by the qualified residents.”

Structure of Local Self Government in India

The structure of local self-government in India, thanks to the 73rd and 74th
amendments, can be divided into two main categories:

1. Rural Local Self Government: This consists of a three-tier system,

including the Gram Panchayat (village level), Panchayat Samiti (block
level), and ZillaParishad (district level).
2. Urban Local Self Government: This includes Municipal Corporations
(for larger cities), Municipal Councils (for smaller cities and towns), and
Nagar Panchayats (for transitional areas between rural and urban).

History of local administration

The history of local administration in India is a long and diverse one, shaped by
the evolution of political, cultural, and administrative systems over millennia.
India has a rich tradition of local governance dating back to ancient times, and
this system has evolved through various dynasties, empires, and colonial
periods.

1. Ancient Period:

 In ancient India, the political landscape was divided into numerous

Janapadas, or small kingdoms and republics. These Janapadas had their
systems of local governance, with councils and assemblies known as
“Sabhas” and “Samitis” that handled administrative and judicial matters.
 Under the Mauryan Empire (322-185 BCE), Emperor Ashoka established
a system of local administration with officials known as “Mahamatras”
 responsible for the welfare of the people in various regions. He also
inscribed edicts on pillars and rocks to communicate his policies to the
local population.

2. Medieval Period:

 Feudal System: During the medieval period, India experienced the

emergence of feudalism. Feudal lords and local chieftains governed their
territories with varying degrees of autonomy. The Delhi Sultanate and later
the Mughal Empire introduced the system of “jagirs” or land grants to
nobles in exchange for revenue collection and military service.
 Local Chiefs and Rajas: Regional rulers, such as Rajas and Zamindars,
exercised local authority and governed their territories independently,
often collecting revenue from peasants.

3. Colonial Period:

1. The British East India Company and later the British Crown introduced a
centralized administrative system that significantly altered local
governance. They established a revenue collection system, where land
revenue was collected directly from peasants or through intermediaries
known as zamindars.
2. The British also introduced local self-government institutions such as
municipalities and panchayats. The Montagu-Chelmsford Reforms
(1919) and the Government of India Act (1935) allowed for some degree
of local representation in governance.

Evolution of local self-government in India

 Balwant Rai Mehta Committee

This committee was appointed in 1957 to check and suggest certain

measures for better working of the community development program and
National Extension Service. Moreover, after a complete evaluation, the
committee recommended the establishment of a local government known
as Panchayati Raj. A few recommendations of the Balwant Rai Mehta
Committee are as follows:
 1. Three-tier Panchayati Raj system:
A. Gram Panchayat at the village level.
B. Panchayat Samiti at the block level.
C. ZilaParishad at the district level.
2. They suggested that the directly elected people will form a Gram
Panchayat and indirectly elected people shall form a Panchayat Samiti
and ZilaParishad.
3. Furthermore, the main objective of local self-government shall be
planning and development.
4. This committee further added that the Panchayat Samiti shall be the
executive body that will implement the things, and the ZilaParishad
will work as an advisory and supervisory body.
5. The chairman of ZilaParishad will be the District Collector.
6. The Balwant Rai Mehta Committee also asked for certain resources to
help them properly discharge their duties.

The report of the Balwant Rai Committee was accepted by the National
Development Council in 1958. But they further said that no rigid pattern
has to be followed, and the states will be free to form their own pattern,
keeping the main objective in mind.

 Ashok Mehta Committee

This committee was appointed in 1977 to suggest ways to strengthen the

Panchayati Raj system in India. Here are a few recommendations of the
Ashok Mehta Committee:

1. The three-tier system can be replaced with a two-tier system to increase

efficiency. That is ZilaParishad at the district level and Mandal
Panchayat formed for a group of villages.
2. The district-level body will supervise local government activities after
the state level.
3. ZilaParishad shall be an executive body that will be responsible for
making plans at the district level.
4. The ZilaParishad and Mandal Panchayat may have taxation powers for
mobilising their financial resources.
5. There should be a regular audit by the agency at the district level.
6. Panchayati Raj institution shall be granted constitutional recognition.

 GVK Rao Committee

This committee was formed to review existing administrative

arrangements for rural development and poverty elevation programs.
Furthermore, the Planning Commission appointed this committee in
1985.

GVK Rao Committee found that the development was not seen as
bureaucrats were involved in the process, and hence, there was no
involvement of local people. Then, there came a need to remove
bureaucratisation and include people of that particular area in the
decision-making. This committee recommended the following to improve
the Panchayati Raj system:

1. ZilaParishad, which is a district-level body, will be the most important

body in democratic decentralisation.
2. The district and lower level are to be assigned with the specific
planning, implementation, and monitoring of rural development
programs.
 3. There shall be a post of District Development Commissioner. He will
work as a chief executive officer of the ZilaParishad.
4. Regular elections shall be held for levels of the Panchayati Raj system.

 LM Singhvi Committee

The Rajiv Gandhi government established this committee to guide the

growth of Panchayats and their institutions. Consequently, under the
Narasimha Rao government, the 73rd and 74th Constitutional Amendment
Acts of 1992 were approved. The main recommendations of the LM
Singhvi Committee were:

1. There must be constitutionally sanctioned Panchayati Raj Institutions.

2. A three-tier structure for the Panchayati Raj system should be in place at
the village, block, and district levels.
3. Nyaya Panchayats must be established for a group of villages.

Characteristics of local self-governance in India

 Constitutional Framework:The constitutional framework provides

the foundation for local self-governance in India, establishing the legal
and institutional structure for local bodies.

 73rd and 74th Amendments: The 73rd Amendment pertains to

rural local bodies, such as Panchayats, while the 74th Amendment
deals with urban local bodies, including Municipalities. These
amendments were enacted in 1992, marking a significant step
towards decentralization.
 Constitutional Status: Panchayats and Municipalities are
constitutionally recognized entities, emphasizing the importance of
grassroots governance.
 Three-Tiered Structure:Local self-governance in India follows a
three-tiered structure, comprising the Gram Panchayat at the village
level, the Panchayat Samiti at the intermediate level, and the
ZillaParishad at the district level for rural areas. In urban areas, it
includes Municipalities at the local level, Municipal Corporations at
the city level, and Metropolitan Planning Committees for metropolitan
areas.

 Gram Panchayat: The Gram Panchayat is the basic unit of local

self-governance, responsible for village-level administration and
development activities.
 Panchayat Samiti/Municipality: The intermediate tier, Panchayat
Samiti in rural areas and Municipality in urban areas, coordinates
activities across multiple Gram Panchayats or Wards.
 ZillaParishad/Municipal Corporation: At the district or city
level, the ZillaParishad in rural areas and Municipal Corporation in
urban areas oversee broader development issues and provide a link
between local and district/state authorities.

 Democratic Representation:One of the fundamental characteristics

of local self-governance is the democratic representation of citizens
through regular elections.

 Direct Elections: Members of Panchayats and Municipalities are

elected through direct elections, ensuring that local leaders are
accountable to the community.
 Reservation for Marginalized Groups: To enhance inclusivity, a
certain percentage of seats are reserved for Scheduled Castes
(SCs), Scheduled Tribes (STs), and women, promoting social
justice and representation.
 Fiscal Decentralization:Fiscal decentralization empowers local
bodies with financial autonomy, allowing them to plan and execute
development projects.

 Revenue Generation: Local bodies have the authority to generate

revenue through taxes, fees, and grants. This helps them fund local
projects and services.
 Finance Commission Recommendations: The Finance
Commission plays a crucial role in determining the share of central
taxes allocated to local bodies, ensuring a fair distribution of
resources.

5. Functions and Powers:Local self-governance entities in India have

been assigned specific functions and powers to facilitate effective
governance at the grassroots level.

 Mandatory Functions: Functions such as rural and urban

planning, economic development, social justice, and public health
are among the mandatory responsibilities of local bodies.
 Decision-Making Powers: Local bodies have decision-making
powers related to local planning, development projects, and
resource allocation within their jurisdiction.

6. Devolution of Functions:The principle of devolution ensures that

functions are transferred from higher levels of government to local
bodies, enhancing local autonomy.

 29 Subjects in Panchayats: The 29 subjects listed in the Eleventh

Schedule of the Constitution outline the areas where Panchayats
have the authority to make decisions and implement policies.
  18 Subjects inMunicipalities: Similarly, the Twelfth Schedule
identifies 18 subjects for Municipalities, ranging from urban
planning to public health and sanitation.

7. Participation and Inclusion:Local self-governance emphasizes active

participation and inclusion of citizens, promoting democratic values and
community engagement.

 Gram Sabha: The Gram Sabha, comprising all adult residents, is a

platform for direct participation in decision-making at the village
level.
 Ward Committees: In urban areas, the formation of Ward
Committees facilitates citizen participation in local governance.

8. Challenges and Areas of Improvement:Despite its strengths, local

self-governance in India faces challenges such as financial constraints,
inadequate capacity, and political interference. Strengthening these
aspects is crucial for effective and sustainable decentralized governance.

 Capacity Building: Local bodies require enhanced capacity

through training programs to efficiently manage resources and
carry out their functions.
 Financial Empowerment: Addressing financial constraints and
ensuring a steady flow of resources is essential for local bodies to
implement development projects.

9. Role in Grassroots Development:Local self-governance plays a

pivotal role in grassroots development, addressing the unique needs and
challenges of local communities.

 Tailored Development Plans: Local bodies formulate

development plans that align with the specific needs and priorities
 of their communities, contributing to sustainable and inclusive
development.
 Community Empowerment: By involving communities in
decision-making processes, local self-governance empowers
citizens to actively contribute to the development of their areas.

Functions and Responsibilities of Local Self Government:

 Infrastructure Development:The local self-government assumes the
responsibility of constructing and maintaining critical infrastructure, such
as transport networks, roads, power lines, schools, and hospitals. By
ensuring the availability of these facilities, the well-being of the
community is significantly enhanced.
 Community Asset Management:The local self-government takes charge
of the development and efficient management of communal amenities,
thereby contributing to an improved quality of life for residents. These
facilities include spaces for recreation, cultural events, and social
gatherings.
 Agricultural Progress:With a focus on agricultural progress, the local
self-government ensures the implementation of proper irrigation and
water schemes, land improvement, and soil conservation. These measures
contribute to the growth and sustainability of agricultural activities.
  Betterment in Education and Health: Recognizing the significance of
education and health, the local self-government plays a pivotal role in
promoting education and enhancing healthcare facilities. By raising
awareness about health concerns, citizens’ access to crucial services is
facilitated.

 Industrial and Economic Development:Encouraging the establishment

of small-scale industries within villages is another key aspect of local
self-government. By nurturing these industries, economic growth is
stimulated at the grassroots level, contributing to self-sufficiency and
prosperity.

 Environmental Conversation:Local self-government bodies engage in

various initiatives aimed at environmental conservation. This includes
active involvement in social forestry, practices of animal husbandry,
dairy farming, and poultry cultivation. By promoting eco-friendly
practices, they contribute to the preservation of the environment.

POWERS OF LOCAL SELF GOVERNMENT

 Administrative Powers:Local self-government bodies have the authority

to manage and administer local affairs, including public services,
infrastructure development, and social welfare programs.

 Financial Powers:They possess the power to generate revenue through

local taxes, fees, and other sources. This financial autonomy allows them
to fund local development projects and initiatives.
 Planning and Zoning:Local self-government bodies are often
responsible for urban and rural planning, including land-use regulations,
zoning, and development control.
 Education and Health:They play a vital role in promoting education and
healthcare within their jurisdiction, ensuring access to quality education
and basic health services.
  Public Services:Local self-government bodies oversee the provision of
essential services such as water supply, waste management, sanitation,
and maintenance of public spaces.

 Social Welfare:They have the authority to implement government

schemes related to social welfare, poverty alleviation, and the
empowerment of marginalized communities.

 Economic Development:These bodies foster local economic

development through initiatives that promote entrepreneurship, small-
scale industries, and job creation.

 Environment:Local self-government bodies play a role in environmental

conservation by implementing measures such as afforestation, waste
reduction, and sustainable practices.

Local Self-Government in India- Problems:

1)Finance Scarcity– The one of the most common problem which is
faced by the local bodies is the scarcity of finance and funds. When
compared to their functions, their source of income is insignificant. Their
main sources of income includes different type of taxes. However, most
of the income generating taxes is levied by the union and state
governments and, the taxes collected by the urban bodies are not
sufficient to cover the expenses of the services provided.
2)Unplanned urbanization -Urbanization is the facet of the development
and it is on the ascendance. The municipal authorities are not able to cope
with the increasing demands of the people, both quantitatively and
qualitatively. The situation is deteriorating due to the rural inrush in cities
and hence, at times these has converted in slums. The development of
populace and enterprises displays an extraordinary test of environmental
debasement and contamination of water, air and land.
3)Excessive State Control-The department of local government and the
state director of local bodiesof various states did not seems to have taken
any significant initiative for relaxation of control or devolution of powers
in this account. The state governments have the ability to supersede and
break up metropolitan bodies in specific situations. The legal aspect i.e.
the Indian Constitution is the gatekeeper of national’s rights and different
types of writs can be issued to keep the local organization inside their
limits.
4) Low Effectiveness-In perspective of insufficient accounts, the local
bodies does not possess the capacity to satisfy their necessities.Therefore,
they face a continuous outcry from the government as well as public. The
necessity i.e., water cannotbe supplied properly, drainage facilities is
improper, unplanned colonies along with slums are on ascendance,
danger of stray cattle on the streets continues, traffic is unplanned, streets
are not legitimately kept up and risky structures are permitted,
notwithstanding the conspicuous risk to the inmates and the tenants of the
territory.Summing up, poor sanitation, poor cleanliness and lack of
essential necessities make urban communities dangerous.
5)Multiplicity of Agencies- A huge criticism is levelled against the
introduction of single purpose agencies. These are influenced by
bureaucrats, which goes against the basic principle of democracy. The
examples are- state transport corporation, water supply department,state
electricity board etc. These bodies function directly under the supervision
of the state government and are not accountable to local government. The
functions that have been assigned to them belong really to the elected
urban bodies. This lowers the powers and prestige of the local bodies.
The civil bodies need to add the monetary allowance to these offices
while having no influence over them. Their functions shall not overlap.
For example, in few states, the role of water supply has been endowed to
the municipal bodies as well as improvement trusts. This arrangement of
double control has weakened the obligation of each. The ordinary
national likewise get confounded, when he needs to approach these
associations.
6)Substandard Personnel- The civil workers and authorities are a
monstrously displeased parcel, undisciplined and untrained to serve the
general population. Different sorts of work force frameworks exist in
various states. Not to state of various states, even in single state, there is a
concurrence of an assortment of work force frameworks, every fragment
being responsible to various control focuses inside and outside the
association.
7) Low level of People’s Participation-In India,people experience a lot
of disappointment andinconvenience in obtaining the civic amenities.As
it is, most of them are so used to facing water, electricity and
sanitation problems, thatthey feel that it is futile to look up to the
urbanbodies for any solution. Add to that, the assortment of special
purpose agencies and other urban bodies confounds the general
population about their limits.
 8) Regionalism-Now and then it is reprimanded on the ground that it
affects regionalism. The local pioneers gets entrapped in the arrangement
of their own issue that barely they can see things past their nose and join
the national standard.
9) Fail to address National problems-Critics comment that the local
leaders neglect to value the state or national issues in their genuine point
of view as a result of the very contrast in the nature and degree.
10) Unscientific distribution of functions-Local self-government plan is
imperfect in so far as the appropriation of capacities between the
structures at various levels has not been made along logical lines. The
mixing of development and Local self-government functions has
essentially abridged the self-sufficiency of the local self-government
foundations. It has, for all intents and purposes changed over them into
administrative offices.

FUTURE PROSPECTS

 Funding Mechanisms:States must establish robust funding mechanisms

to ensure the financial viability of local self-government bodies.
Empowering them with revenue-generating capabilities ensures their
sustained functioning.

 Capacity Building:Design regular and systematic education programs

for representatives. These programs can enhance their understanding of
their roles and responsibilities, keeping them informed about the latest
developments and best practices.

 Empowerment:Empowering Gram Sabhas, which represents the

collective voice of communities, is pivotal. Instituting social auditing
mechanisms can boost transparency and accountability. This will create
an environment of trust and active participation.
 DISTRIBUTION OF POWER
Introduction:
India, in the Constitution, has been described as a federation of States. Indian
Constitution provides for three lists for distribution of legislative and executive
power between the Center and the States; i.e.

1. the Union (Central) List,

2. the State List, and
3. the Concurrent List (subjects within the ambit of the Union
Government & the State Governments).
According to Dicey, power distribution is an essential feature of a federation.
The object behind the formation of a federal State involves an authoritative
division between the National Government and the Government of the separate
States. The federal tendency is restricting every side of the Governmental
action, and separation of the strength of the State among parallel and
independent authorities is particularly noticeable as it forms a significant
distinction between a federal system and unitary system of Government.

Meaning:

The distribution of power refers to how power is delegated in the government of

a society. This is often expressed in the creation of separate independent
branches of government such as the judicial, executive, and legislative branches
common to many republican systems today.

Distribution of Legislative Powers

The distribution of legislative powers between the Union and the States is based
on the Government of India Act, 1935, which was also followed in the
Constitution of India. The legislative relations distribute the power of
lawmaking and governance between the Union and the States. The Constitution
of India makes a two-fold distribution of legislative powers:

 With respect to the territory

 With respect to the subject matter of legislation, which is divided into three
lists.
Thus, the Constitution of India outlines the distribution of legislative powers
between the Union and the States for effective governance.
The rules and regulations were drafted under Part XI of the Indian Constitution
and are dealt with in Articles 245 to 255.

1. The extent of the Parliamentary laws and the laws by the State
Legislatures

According to Article 245; subject to the constitutional provisions,

Parliament may legislate for the whole or any part of the Indian territory, a
State legislature for the State territory, and no parliamentary legislation
shall be invalid because of having extra-territorial operability, i.e. takes
effect outside the Indian territory.

In A.H Wadia vs. Income Tax Commissioner; the Supreme Court held that
in case of a sovereign legislature, the question on the extraterritoriality of
any enactment cannot be raised before a Municipal Court for the purpose of
challenging its validity. The legislation may be contrary to the rules of the
International Law, may be unrecognizable in the foreign Courts, or may
have practical difficulties in relation to their enforceability, but the
domestic tribunals are concerned solely with the questions of policy.

2. Subject-matter of the Parliamentary laws and laws made by the

State Legislature:According to Article 246;

 Union List: The Union list contains 97 items which comprise of the
subjects having national significance. This list admits uniform laws
that are applicable over the entire Indian Territory, and only the Indian
Parliament is capable of legislating upon them.
 State List: The State list contains 66 items that comprise subjects
relating to local interest or the interest of the State. The State
legislature is thus competent in legislating over these subjects.
 Concurrent List: This list enshrines 47 items, with respect to which;
both the Union Parliament and the State legislature hold a concurrent
legislative power. This list was meant to serve as a device for avoiding
excessive rigidity in a two-fold distribution. Besides, the states can
additionally legislate purporting to amplify the Parliamentary
legislation. However, in case a dispute arises in relation to any subject
contained in this list, the Union legislation shall prevail over that of
the State.
3. Parliamentary power to provide for the establishment of certain

additional courts

According to Section 247; notwithstanding anything under this chapter,

the Parliament may legally provide for the establishment of any number
of additional courts for improving the administration of Parliamentary
laws or of any existing laws with respect to any matter in the State List
(List-II).

4. Residuary legislative powers

According to Article 248; Parliament is exclusively empowered to

legislate with respect to any matter absent in the Concurrent List or State
List. Also, such power shall include the legislative power for imposing a
tax not mentioned in either of those Lists.

Therefore, the Parliament has the power to make laws in relation to any
matter which is not present in either the concurrent list or the State List,
including the power to make laws on tax imposition.

5. Parliamentary legislative power with respect to a matter in the State

List

In the national interest

According to Article 249; if the Rajya Sabha passes a resolution relating

to a matter of national interest with a two-third majority. Such resolution
empowers the Parliament to legislate with respect to any matter in the
State List, then it shall be lawful for the Parliament to legislate. Such
legislation can extend to the whole or any part of the Indian territory until
the legislation operates.

6. If a Proclamation of Emergency is in operation

According to Article 250; during the operation of the Proclamation of

Emergency, the Parliament shall be empowered to legislate for the entire
 Indian territory or any of its parts with respect to all the matters
enumerated in the State List.

However, such law shall come to cessation on the expiration of 6 months

following the cessation of the Proclamation of Emergency.

During Emergency, the Parliament has the power to make any law which
shall be applicable over the entire or any part of India, and such law shall
be applicable for only a year after the emergency is withdrawn.

7. Inconsistency between Parliamentary legislation under articles 249

and 250 and laws made by the Legislatures of States

According to Article 251; nothing under the Articles 249 & 250, shall
restrict the State Legislature from legislating on any matter for which it
has been empowered under the Constitution. However, if any legal
provision legislated by the State Legislature is repugnant to any legal
provision so legislated by the Parliament, whether legislated prior to or
following the State law, then the law made by the Parliament shall
prevail over the one passed by the State and the State legislation shall be
inoperative until the operation of the Parliamentary law.

8. Parliamentary legislative power for two or more States by consent

and adoption of such legislation by any other State

According to Article 252; If it appears to the two or more State

Legislatures that it is desirable that any of the matters with respect to
which Parliament lacks any legislative power for the States except as
provided under the Articles 249 and 250 should be regulated so that the
States by Parliamentary law, and if resolutions are passed to that effect by
all the House of those State Legislatures, it shall be lawful for Parliament
to pass an Act in order to regulate that matter accordingly, and any Act so
passed shall be applicable to such States and to any other State by which
it is adopted later through a resolution passed in that behalf by the House
or Houses of the State Legislature, as the case may be.

9. Legislation for effecting international agreements

 According to Article 253; notwithstanding anything in the foregoing
provisions of this chapter, the Parliament has legislative power for the
whole or any part of the Indian territory for-

 Implementation of any treaty, agreement, or other convention with

another country;
 Implementing any decision made at any international conference, or
international association, or international body.
The Parliament is hereby empowered to pass any law relating to
implementing any international treaty, or agreement or convention, as the
case may be; and related to any law for any decision taken at any
international conference or association, and shall be applicable over the
whole or any part of the nation.

10.Inconsistency between Parliamentary laws and the laws by the State

Legislature

According to Article 254; if any legal provision made by the State

Legislature is repugnant to any legal provision made by the Parliament
over which it has the competency, or to any existing legal provision with
respect to any of the matters contained in the Concurrent List, then,
subject to the provisions of clause (2), the Parliamentary laws, whether
passed prior or following the enactment by the State Legislature, or, as
the case may be, the existing law, shall prevail over the law passed by the
State Legislature.

11.Requirements as to recommendations and previous sanctions to be

regarded solely as procedural matters

According to Article 255; no Parliamentary Act or an act of a State

legislature and no provision in any such Act shall be invalid solely for the
reason that some recommendation or previous sanction required by this
Constitution was not given in case the assent to that Act was given:

1. In case the required recommendation was of the Governor’s and had to

be given by the Governor or the President;
2. In case the recommendation required was that of the Rajpramukh,
either by the Rajpramukh or by the President;
 3. In case the recommendation or previous sanction required was that of
the President, by the President.

Case Laws:

 In Javed v. State of Haryana, the Supreme Court upheld the

constitutional validity of certain provisions of the Haryana Panchayati
Raj Act, 1994, which disqualified a person from holding the office of
Sarpanch or a Panch of a Gram Panchayat, etc. if he had more than two
living children, although a similar provision was not found to have been
enacted by the Parliament or other State Legislatures.
 The Supreme Court, in State of M.P. v. G.C. Mandawar, held that two
laws enacted by two different governments and by two different
Legislatures could not be read in conjunction or by comparison for the
purpose of finding out if they were discriminatory.
 In Union of India v H.S. Dhillon, the question involved was whether
parliament had legislative competence to pass Wealth-tax Act imposing
wealth tax on the assets of a person in agricultural land. The Court held
that in case of a central Legislation the proper test was to inquire the
matter fell in List II (State List) or List III (Concurrent List). Once it is
found that matter does not fall under List II, Parliament will be competent
to legislate on it under its residuary power in Entry 97 of List I. in such a
case it becomes immaterial whether it falls under Entries I-96 of List or
not.

SEPERATION OF POWER

Introduction:

The separation of powers is imitable for the administration of federative and

democratic states. Under this rule the state is divided into three different
branches- legislative, executive and judiciary each having different independent
power and responsibility on them so that one branch may not interfere with the
working of the others two branches.

Basically, it is the rule which every state government should follow in order to
enact, implement the law, apply to specific case appropriately. If this principle
is not followed then there will be more chances of misuse of power and
corruption.
If this doctrine is followed then there will be less chance of enacting a
tyrannical law as they will know that it will be checked by another branch. It
aims at the strict demarcation of power and tries to bring the exclusiveness in
the functioning of each organ.

The court has the authority to overturn any unlawful legislation that the
legislature passes thanks to a system of checks and balances that has been put in
place.

Because it is unworkable, the majority of constitutional systems today do not

have a tight division of powers among the several organs in the traditional
sense. Although the theory of separation of powers is not expressly recognised
in the Constitution in its absolute form, the Constitution does provide provisions
for a fair division of duties and authority among the three branches of
government.

Meaning

The concept of separation of powers refers to a system of government in which

the powers are divided among multiple branches of the government, each
branch controlling different facet of government. In most of the democratic
countries, it is accepted that the three branches are the legislature, the executive
and the judiciary.

The meaning of separation of power can be categorized into three features:

 A person forming a part of one organ should not form part of another
organ.
 One organ should not interfere with the functioning of the other
organs.
 One organ should not exercise the function belonging to another organ.
The separation of power is based on the concept of triaspolitica. This principle
visualizes a tripartite system where the powers are delegated and distributed
among three organs outlining their jurisdiction each.

History of the Separation of Powers?

 The concept of separation of powers was first seen in the works of

Aristotle in the 4th Century BC wherein he described the three agencies
of the government as General Assembly, Public Officials and
Judiciary.
 In the ancient Roman Republic, a similar concept was followed the term
triaspolitica or separation of power was coined by Charles Louis de
Secondat an 18th-century French social and political philosopher.
o His publication “Spirit of the laws” is considered one of the great
works in the history of political theory and jurisprudence. His ideas
had a profound impact on the architects of the American
constitution.
o Under his model, the political authority of the state is divided into
legislative, executive and judicial powers. He asserted that to most
effectively promote Liberty these three powers should be separated
and operate independently.
Why Separation of Powers is Important?

 Power Concentration: Erosion of the doctrine of separation of

powers seeks to protect the centralisation of power in one hand as
history has repeatedly demonstrated this can lead to disastrous outcomes.
 Transparency: The application of this principle makes the government
liable, accountable and answerable to its citizens for its actions thereby
aiding in the promotion and protection of Human Rights.
 Elimination of Other Administrations: Separation of power eliminates
one of the most serious weaknesses of other forms of administration such
as monarchy or dictatorship in which the king is not accountable to his
people.
 Natural Justice: The following principle creates a balance of parts inside
the government in which the functions of the government bodies are kept in
check by one another while remaining separate from each other, this
assures that the laws are just fair and adhered to the Natural Justice.

Three-tier machinery of state government

 Legislative
The main function of the legislature is to enact a law. Enacting a law
expresses the will of the State and it also acts as the wain to the autonomy
of the State. It is the basis for the functioning of executive and judiciary.
It is spotted as the first place among the three organs because until and
unless the law is framed the functioning of implementing and applying
the law can be exercised. The judiciary act as the advisory body which
 means that it can give the suggestions to the legislature about the framing
of new laws and amendment of certain legislation but cannot function it.

 Executive

It is the organs which are responsible for implementing, carrying out or

enforcing the will of the state as explicit by the constituent assembly and
the legislature. The executive is the administrative head of the
government. It is called as the mainspring of the government because if
the executive crack-up, the government exhaust as it gets imbalanced. In
the limited sense, executive includes head of the minister, advisors,
departmental head and his ministers.

 Judiciary

It refers to those public officers whose responsibility is to apply the law

framed by the legislature to individual cases by taking into consideration
the principle of natural justice, fairness.

Provisions that Substantiate Separation of Power

 Article 53(1) and Article 154 of the Indian Constitution clearly say that
the Executive powers of the Union and the States are vest in the
President and Governor respectively and shall only be exercised
directly by him or through his subordinate officers.
 Article 122 and Article 212 of the Indian Constitution state that the
courts cannot inquire in the proceedings of Parliament and the State
Legislature. This ensures that there will be no interference of the
judiciary in the legislature.
 Article 105 and Article 194 of the Indian Constitution specify that the
MPs and MLAs cannot be called by the court for whatever they speak
in the session.
 Article 50 of the Indian Constitution encourages the separation of
judiciary from the executive in the states.
 Article 245 of the Indian Constitution gives authority to Parliament
and State Legislature for making laws for the whole country and the
states respectively.
  Article 121 and Article 211 of the Indian Constitution state that the
judicial conduct of any judge of the Supreme Court or High Court
shall not be discussed in Parliament or State Legislature.
 Article 361 of the Indian Constitution specifies that the President and
the Governor are not accountable to any court for exercising their
powers and performance of duties in his office.

Merits of separation of power

 Creating a system of checks and balances

One aspect of the theory of separation of powers is checks and balances.
According to this characteristic, each organ has certain checking abilities
over the other two organs in addition to its own power. The inter-organ
relationships are governed by a system of checks and balances during the
process.

 Protection of liberty and rights

According to the doctrine of the separation of powers, an individual’s

freedoms and rights are protected, and they are shielded from various
types of dictatorship and oppression.

 Improvement in government efficiency

As authority is divided across government agencies, these agencies learn

in-depth information about the issues they are responsible for and
improve their effectiveness. The tasks required in governance are
sometimes too many for one branch of the government to handle.
Therefore, the division of powers aids in lightening the strain on each
individual branch of government.

 Encourages order in governance

Each of the three branches of the government is given a certain set of

responsibilities. Each person would have to do their part solely if the
concept were to be strictly followed. This guarantees that the state is run
in an orderly manner.
  Prevents abuse of authority

The separation of powers is an excellent safeguard against the abuse and

haughtiness of power. Because various departments are given varying
degrees of authority, the emergence of a dictatorship is prevented. The
idea is sound in that it can restrain tyranny on the part of those in
authority. The idea makes sure that too much authority is not centralised
in one branch of the government. By doing this, the desire to misuse
authority is avoided.

 Achieves judicial independence

The idea of judicial independence holds that the judiciary ought to be

separate from the other arms of the government. In practically every
constitution, the judiciary is granted the authority to decide all
constitutional problems and the authority to deem the actions of the other
branches of government null and invalid. The idea of the separation of
powers contributes to bolstering the judiciary’s independence in carrying
out its duties.

Case Law:

 In Golak Nath v. State of Punjab[5], it was observed by Subba Rao

C.J. that:-
“ The three organs of the government have to exercise their functions
keeping in mind certain encroachments assigned by the constitution.
The constitution demarcates the jurisdiction of the three organs
minutely and expects them to be exercised within their respective
powers without overstepping their limits. All the organs must function
within the spheres allotted to them by the constitution. No authority
which is created by the constitution is supreme. The constitution of
India is sovereign and all the authorities must function under the
supreme law of the land i.e. the Constitution.”

 Das J. talked about separation of powers in the case of A. K. Gopalan

v. State of Madras[6]:-
“ Although the constitution has imposed some limitations on the three
organs of the government, it has left our parliament and state
legislature supreme in their respective fields. In the main, subject to
 the limitations, our constitution has preferred the supremacy of
legislature to that of the judiciary and the court has no authority to
question the wisdom or policy of the law duly made by the appropriate
legislature and this is the basic fact which the court must not outlook.”

 In Asif Hameed v. State of Jammu and Kashmir[7], the Supreme Court

observed that:-
“ Though the constitution has not recognized the doctrine of separation
of powers in its absolute rigidity, the drafters of the constitution have
diligently defined the powers and functions of various organs. The
legislature, executive and judiciary have to function within their own
domain prescribed by the constitution. No organ may arrogate the
functions allotted to another.”