COGITO ERGO SUM

MAGNA CARTA
MAINS 2023
PAPER II CRASH COURSE : L5B(II) & 5C

POLITY : LEC 5: THEME 5 :

L5A: TOPIC 1 : SEPARATION OF POWERS,
L5B: TOPIC 2 & 3 : (I)FEDERALISM & (II)LOCAL SELF GOVERNMENT
L5C: TOPIC 3 : DOCTRINES & COMPARISONS

ATISH MATHUR OFFICIAL

OFFICIAL SYLLABUS POLITY LECTURE PLAN

Lecture 1A : Historical Constitutions,

Preamble, Fundamental Rights, Directive
Principles of State Policy, Fundamental Duties

Lecture 1B + 2 : Executive

Lecture 3 : Legislature

Lecture 4 : Judiciary

Lecture 5 : Federalism & Local Self

Government, Separation of Powers & Other
Constitutional Principles, Features, &
Doctrines

Lecture 6 : Bodies & Associated Sectors

LSG
 LSG

CONTEXT

India is a signatory to the United Nation 2030

Agenda for achieving inclusive; people centric
and holistic Sustainable Development
through 17 Goals.
NITI Aayog is the Nodal institution for the
implementation of Sustainable Development
Goals (SDGs).
Spirit of ‘Whole of Government & Whole of
Society’ approach.
Given that nearly 70% of India lives in rural
areas, attainment of Sustainable
Development Goals at the National level will
require actions at the grassroots level
through Panchayati Raj Institutions. Hence
role of Panchayati Raj Institutions especially
Gram Panchayats is very crucial in localising Conformity acts have been enacted in all States
the SDGs. State Election Commissions (SECs) have been established and regular elections have
Panchayat Development Index (PDI) will been conducted under their supervision in all States
play a pivotal role in the process State Finance Commissions (SFCs) have been constituted in all States and their
India has 260,512 Panchayats with 3.1 million recommendations obtained.
elected representatives, of which a record 1.3 Infrastructure and governance systems in panchayats throughout the country have
million are women. reasonably improved
 DEVOLUTION

FUNDS

Local bodies have been facing a decline in overall revenues – the share of municipal revenue in national GDP touched 0.43 percent in 2017-18, the
lowest in eight years. This has led to local bodies being dependent on state governments for grants accompanied by low levels of fiscal
devolution.
The Fifteenth Finance Commission, for the first time, has imposed entry-level eligibility conditions on the release of grants to local bodies. These
recommendations have been accepted by the Government of India (GoI).
Around 84% grants are now linked to the performance-based conditions along with strict entry-level conditionalities
Incidentally, these entry-level conditionalities have come at a time when the state finances are already under acute stress due to a severe
contraction in revenues and large increase in expenditures required to save lives and livelihoods of the people affected by the second wave of the
COVID-19 pandemic.
At a time when the state finances are under an acute stress, it was expected that the Fifteenth Finance Commission will empower the local bodies
through higher grants. It did increase the amount of grants, but the stringent conditionality threatens to reduce allocations to them as the states
may not comply with the conditions
All SFCs have put great emphasis on internal revenue mobilisation, but none has suggested any effective mechanism for PRIs to generate their
own revenue
 FUNCTIONS

Neither Article 243G (dealing with panchayats) or Article 243W (dealing with municipalities) makes the transfer of functions mandatory.
Of the 18 subjects listed in the Twelfth Schedule, in Karnataka, ULBs have complete control of only three, while PRIs, in states such as Punjab,
Jharkhand, and Goa, have extremely limited autonomy.
While Kerala has devolved all 29 functions to Panchayats, Rajasthan took the inspiration from Kerala to devolve many key departments such as
health, education, women, and agriculture to PRIs. (Healthy competition, of sorts)
In the tertiary sector the most popular function transferred to panchayat raj institutions is education (28 states) followed by health in 27 states.
This is followed by drinking water in 26 states. Social welfare including welfare of handicapped and mentally retarded in 26 and women and child
development in 24 states, Family welfare and rural housing is covered in 24 states. Poverty alleviation programme (23), public distribution
systems (22) follow.
The failure to devolve functions to local bodies has led to States replacing them with parallel executive bodies that carry out the same functions.
management of water supply can be transferred to municipalities under Item 5, Schedule XI, it has become increasingly common for States to
constitute executive-controlled Water Boards
Although Part IXA provides for the constitution of district and metropolitan planning committees, and for the delegation of planning powers to
municipalities, it is very common for States to have ‘Development Agencies’ that take on this function
Only nine States, namely, Haryana (just in 3 Districts), Karnataka (10 out of 27districts), Kerala, Madhya Pradesh, Rajasthan, Sikkim, Tamil Nadu,
Tripura andWest Bengal and two Union Territories, namely, Andaman & Nicobar Islands and Daman & Diu have taken action to constitute DPCs
Although Articles 243G and 243W envisage that the State will enable local bodies to ‘function as institutions of self-government’ the Supreme
Court has found this an insufficient mandate to interfere with the State’s legislative powers to devolve functions at its own pace.
 FUNCTIONARIES : CONDUCT OF PANCHAYAT ELECTIONS

In several of the States, governments have encroached upon the jurisdiction of the State Election Commission and taken over some of the powers
In Chanigappa v State of Karnataka (2000), the Karnataka High Court held that the State Government could take over some functions of the
State Election Commission, such as delimitation of constituencies, since these functions preceded the electoral process and were not a part of
it
Courts do, however, interfere when State electoral appeals processes do not allow remedies in specific circumstances, or when there have
been instances of violations of fundamental rights
The mandatory reservations for women, Scheduled Castes and Scheduled Tribes and Other Backward Classes that the 73rd Amendment
enumerated has brought up more than a million new representatives from these sections to the democratic spaces.
Esther Duflo and Raghavendra Chattopadhyay in their influential study of Panchayats in Rajasthan and West Bengal found that women
representation in the local bodies had positive effect in adequate delivery of local public goods to disadvantaged group
A similar study by Laxmi Iyer et al. found that having more women in local bodies help women come forward to report crimes and take up
issues beneficial to women
While the conduct of local elections on a massive scale in India is laudable, there are still some issues, such as these, which require clarity, either
by judicial or legislative intervention.
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.
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.
 SOLUTIONS

Strengthening Financial Autonomy: Local self-government bodies should be provided with adequate financial resources to carry out their
functions effectively. This includes revenue generation powers, access to grants and funds, and capacity building to enhance financial
management capabilities.
Capacity Building: There should be a focus on capacity building initiatives for local self-government officials and staff. Training programs
can be conducted to enhance their administrative, technical, and managerial skills. This will enable them to effectively plan, implement,
and monitor local development initiatives.
Empowering Citizens: Encouraging citizen participation and creating avenues for active involvement in local decision-making processes is
crucial. This can be done through public consultations, citizen feedback mechanisms, and the use of technology platforms to gather inputs
and opinions from the community.
Strengthening Accountability and Transparency: Robust mechanisms should be put in place to ensure transparency and accountability in
the functioning of local self-government bodies. Regular audits, public disclosure of information, and citizen access to relevant data can
help in fostering trust and accountability.
Promoting Gender and Social Inclusivity: Efforts should be made to ensure equal representation and participation of women, marginalized
communities, and vulnerable groups in local self-government bodies. This can be achieved through reservation policies, awareness
campaigns, and capacity-building initiatives.
Inter-Governmental Cooperation: Collaboration and coordination between different levels of government, such as central, state, and local,
are essential for effective local self-government. There should be mechanisms in place to facilitate cooperation, information sharing, and
resource allocation for better alignment of policies and programs.

Social Audit (2nd ARC) "Local self-government is the cornerstone of democracy,

Inclusive CFC empowering communities to shape their own destiny and actively
Data Driven Governance participate in the governance of their own lives."
Brussels, Argentina : Case Studies
The Rajiv Gandhi Panchayat Sashaktikaran Abhiyan (RGPSA) :
Enhance the capacities and effectiveness of GPs and Gram
Sabhas, promote people’s participation in panchayats, strengthen
the institutional structure for capacity building of panchayats.
COMPARATIVE CONSTITUTIONAL SCHEME
 INDO - US : FEDERALISM

Indian and American federalism represent two distinct models of federal governance. While both systems emphasise a division of power between the central and
state governments, there are several key differences between the Indian and American forms of federalism.
Distribution of Powers: In the United States, power is divided between the federal government and individual state governments according to the principle of dual
federalism. The U.S. Constitution enumerates specific powers for the federal government, while reserving all other powers to the states. This division of powers
creates a clear separation between the two levels of government.
On the other hand, India follows a system of cooperative federalism. The Indian Constitution provides for a three-tiered distribution of powers among the federal
government, state governments, and local governments. While certain subjects are exclusively under the jurisdiction of either the central or state governments,
there are also concurrent subjects that can be legislated upon by both levels of government. This model emphasises cooperation and collaboration between the
different levels of government.
Centralisation vs. Decentralisation: The American federal system leans more towards decentralisation, with considerable autonomy granted to the states. State
governments have their own executive, legislative, and judicial branches, and they exercise significant authority over various policy areas such as education,
healthcare, and transportation. The federal government's powers are limited to those explicitly granted by the Constitution.
In contrast, the Indian federal system is more centralised. The central government holds significant authority and can legislate on matters that affect the entire
country. State governments in India have less autonomy compared to their American counterparts. The central government can also intervene in the affairs of the
states under certain circumstances, such as when a state fails to comply with the Constitution or if there is a breakdown of law and order.
Role of the Judiciary: The judiciary plays a vital role in both federal systems, but with some distinctions. In the United States, the Supreme Court acts as the
ultimate interpreter of the Constitution and has the power of judicial review. It can declare laws unconstitutional and settle disputes between the federal and state
governments.
Similarly, in India, the Supreme Court is the highest judicial authority and has the power of judicial review. However, the Indian judiciary has played a more active
role in shaping federalism. It has often intervened to settle disputes between the central and state governments, and it has interpreted and expanded the scope of
federal powers through its rulings.
Financial Relations: In the American federal system, states have significant fiscal autonomy. They generate their revenue through various means, including taxes,
and have the authority to spend it as they deem fit within their constitutional limits. The federal government primarily relies on its own sources of revenue, such as
federal taxes.
In India, the financial relations between the central and state governments are more interdependent. The central government collects taxes on behalf of both itself
and the states, and it redistributes a portion of these funds to the states through a system called fiscal federalism. The central government also has the authority to
impose taxes on goods and services that affect both the central and state revenues.
Overall, while both the Indian and American federal systems aim to strike a balance between centralised and decentralised governance, they differ in terms of the
distribution of powers, centralisation versus decentralisation, the role of the judiciary, and financial relations. These variations reflect the unique historical,
political, and cultural contexts of each country.
 PRESIDENTIAL V. PARLIAMENTARY

Presidential and parliamentary forms of government are two distinct systems with different structures and functions. Here's a comparison and contrast between
the two:
Head of Government:
Presidential: In a presidential system, the head of government is separate from the head of state. The president is directly elected by the people and holds
executive powers.
Parliamentary: In a parliamentary system, the head of government is typically the Prime Minister, who is a member of the parliament and is elected by the
parliament or the political party with a majority.
Separation of Powers:
Presidential: The executive, legislative, and judicial branches are separate and independent of each other. The president is the head of the executive branch,
while the legislature and judiciary are separate and have their own powers and responsibilities.
Parliamentary: The separation of powers is not as strict as in a presidential system. The executive and legislative branches are often intertwined, with the Prime
Minister and their cabinet being members of the parliament.
Formation of Government:
Presidential: The president is elected separately from the legislature. The president selects their own cabinet members from outside the legislative branch.
Parliamentary: The government is formed by the political party or coalition of parties that has the majority in the parliament. The Prime Minister is usually the
leader of the majority party or coalition.
Confidence and Stability:
Presidential: The president's term is fixed and independent of the legislature. The president's stability in office does not depend on the legislature's confidence.
Parliamentary: The government's stability depends on maintaining the confidence of the majority in the parliament. If the government loses a vote of
confidence, it may lead to a resignation of the Prime Minister or dissolution of the parliament.
Flexibility and Accountability:
Presidential: The president has significant powers and can make decisions without direct parliamentary approval. The president is directly accountable to the
people.
Parliamentary: The Prime Minister and their cabinet are accountable to the parliament, and their decisions require parliamentary support. The government's
policies and actions can be influenced by the parliament.
Speed of Decision-Making:
Presidential: Decision-making can be relatively quick, as the president can act independently without prolonged debates and negotiations.
Parliamentary: Decision-making may involve more deliberation and consensus-building among multiple parties and branches of government, potentially leading
to slower processes.
Both systems have their own advantages and disadvantages, and their suitability depends on the specific context and needs of a country.
 INDO-US JUDICIARY

Structure:
India: The Indian judiciary is a unified system with a hierarchical structure. At the top is the Supreme Court, followed by High Courts in each state, and
subordinate courts at the district and lower levels. The judiciary is independent of the executive and legislative branches.
United States: The US judiciary has a federal system with a dual court structure. It consists of federal courts and state courts. The federal judiciary includes the
US Supreme Court, federal appellate courts (Circuit Courts), and federal district courts. Each state has its own court system, with the highest court typically
called the Supreme Court or Court of Appeals.
Appointment of Judges:
India: In India, the President appoints judges to the Supreme Court and High Courts based on recommendations from the collegium system, which consists of the
Chief Justice of India and other senior judges. The collegium system has been criticized for lacking transparency and accountability.
United States: In the US, federal judges, including Supreme Court justices, are nominated by the President and confirmed by the Senate. This process is subject
to political considerations and can be contentious. State judges are typically appointed through various methods, such as elections or appointments by the
governor or legislative bodies.
Jurisdiction:
India: The Indian judiciary has jurisdiction over both constitutional and legal matters. The Supreme Court has original jurisdiction in certain cases and appellate
jurisdiction over High Court decisions. The judiciary also plays a crucial role in protecting fundamental rights and interpreting the Constitution.
United States: The US judiciary has jurisdiction over both federal and state laws. The Supreme Court has original jurisdiction in limited cases but primarily
functions as an appellate court, reviewing decisions from lower federal and state courts. It has the power of judicial review to interpret the US Constitution.
Role in Constitutional Interpretation:
India: The Indian judiciary, particularly the Supreme Court, has a significant role in interpreting the Constitution. It has the power of judicial review and has
interpreted and expanded fundamental rights, including through Public Interest Litigation (PIL). The judiciary actively shapes public policy and social issues.
United States: The US Supreme Court has the ultimate authority in interpreting the US Constitution. Its decisions have a profound impact on constitutional law
and public policy. The court's interpretations have shaped civil rights, individual liberties, and the balance of power between branches of government.
Public Interest Litigation (PIL):
India: India has a unique feature of Public Interest Litigation (PIL), where individuals or organizations can seek court intervention to address social and public
interest issues. PIL has been instrumental in advancing social justice and holding the government accountable.
United States: The US legal system does not have a specific equivalent of PIL. However, various mechanisms, such as class action lawsuits, allow individuals or
groups to bring legal actions on behalf of a larger class or to seek remedies for broader societal issues.
Judicial Activism:
India: The Indian judiciary is known for its active role in addressing social issues and policy matters. Judicial activism refers to instances where the courts have
taken a proactive approach, intervening in areas beyond traditional legal disputes.
United States: The US judiciary has experienced periods of judicial activism, where the courts have made significant decisions in civil rights, social issues, and
the balance of power. The level of activism can vary based on the composition of the Supreme Court and prevailing legal philosophies.
 DOCTRINES

Doctrine of Repugnancy
The doctrine of Colourable Legislation
The doctrine of Pith and Substance According to the doctrine of repugnancy, if
It is based upon the doctrine of power
It arises when there is a conflict between there is a conflict or inconsistency between a
separation. Separation of power mandates to
two or different subject matters of law passed by the Parliament and a law
strike power of balance between different
different list. passed by a state legislature on a subject in
state components.
There can be circumstances in which the Concurrent List (a list of subjects on
It is based on the maxim that “what cannot be
subject matter of list 1 clashes with the which both the central and state
done directly, cannot also be done
subject matter of list 2. Hence, this governments have the power to legislate), the
indirectly”.
doctrine is applied in this kind of situation. law passed by the Parliament will prevail, and
This doctrine of colourable legislation is
The main reason behind the adoption of the state law will become void to the extent
applied when a Legislature does not have the
this doctrine of pith and substance is that of the repugnancy.
right to make law upon a particular subject
the powers of the legislature would be The doctrine is derived from Article 254 of
but indirectly makes one.
severely limited if every law were to be the Indian Constitution, which provides
The Court has laid down certain tests for
declared invalid on the ground that it guidelines for resolving conflicts between
discovering whether any particular Act
infringes power. central and state laws. It states that if a state
constitutes colourable legislation.
According to this doctrine, it is examined law is inconsistent with a central law on a
(a) The court must not look into its form or
to check its “true nature and character” in subject in the Concurrent List, the central law
the label but the substance of the law which
order to ascertain in what list it falls. will prevail and the state law will become void
the legislature has given it.
It provides a degree of flexibility. It is to the extent of the inconsistency.
(b) The court must look at the object as well
widely used in determining whether the However, if a state law receives the
as the effect of the law.
state is within its power to make statute President's assent after being reserved for
(c) If the legislature proceeds under a
which involves a subject mentioned in the his consideration, it will prevail in that
legislative plan the court must read all the
union list of the constitution. particular state even if it is inconsistent with
statutes constituting that plan and determine
It is applied in the case State of Bombay Vs the central law. This exception is known as
the combined effect.
F.N Balasar by the supreme court. This was the 'repugnancy with respect to a particular
Application of this Doctrine: K.C. Gajapati
the first important judgment which upheld state' and allows the state to enact laws that
Narayana Deo And Other v. The State Of
the pith and substance. may deviate from central laws in certain
Orissa
circumstances.
 DOCTRINES

Doctrine of Severability
Doctrine of Severability
According to the doctrine of severability, if there is any
According to the doctrine of severability, if there is any
offending part in the statute then the only offending
offending part in the statute then the only offending
part is declared void and not the entire statute. The rest
part is declared void and not the entire statute. The rest
remains operative. Under article 13, it is given that only
remains operative. Under article 13, it is given that only
offending part in a statute is void and not the whole
offending part in a statute is void and not the whole
statute.
statute.
This doctrine has been thus summarized by the Supreme
This doctrine has been thus summarized by the Supreme
Court in the following manner:
Court in the following manner:
If the valid and invalid provisions cannot be separated
If the valid and invalid provisions cannot be separated
from one another then the entire act becomes invalid.
from one another then the entire act becomes invalid.
If the valid and invalid portions from a single scheme
If the valid and invalid portions from a single scheme
which is intended to be operative as a whole then the
which is intended to be operative as a whole then the
invalidity of a part results in invalidity of the whole
invalidity of a part results in invalidity of the whole
Where the valid and invalid parts are independent and
Where the valid and invalid parts are independent and
do not form a scheme but after omitting the invalid part
do not form a scheme but after omitting the invalid part
what is left would be entirely different from what
what is left would be entirely different from what
emerged from the legislature then it is invalid in its
emerged from the legislature then it is invalid in its
entirety.
entirety.
If after excluding the invalid portion what remains
If after excluding the invalid portion what remains
cannot be enforced then the whole Act becomes invalid.
cannot be enforced then the whole Act becomes invalid.
If the invalid part is separate in its operation from the
If the invalid part is separate in its operation from the
other parts then only the invalid part is so declared. The
other parts then only the invalid part is so declared. The
rest is severed and remains operative.
rest is severed and remains operative.
The effect of the application of the doctrine is that the
The effect of the application of the doctrine is that the
Act is void in parts. That portion which is not void
Act is void in parts. That portion which is not void
survives.
survives.
In RMDC vs. UOI, [10] the Supreme court states that the
In RMDC vs. UOI, [10] the Supreme court states that the
doctrine of severability is a matter of substance and not
doctrine of severability is a matter of substance and not
of form.
of form.