Magna Carta Polity for Mains

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
 MEANING & CONTEXT PHASES

1. Constitutionally allocated distribution of powers between two or

more levels of government in the modern nation-state system—one,
at the national level and the other, at the provincial, state or local
level
2. Governments at both the national and the state level function in their
respective jurisdictions with considerable independence from one
another
3. Some of the notable federal polities in the world are the United
States (US), Canada, Switzerland, Australia and India
4. Two Models :derived from the Latin word foedus, which means treaty
or agreement
a. “coming together” : few contiguous provincial units voluntarily
come together to form a strong union, a federation is formed. Ex -
US
b. “holding together”. Ex - geographically vast and culturally diverse
state gives autonomy to its provinces for administrative
convenience and for representing the regional interests. Ex - India
i. paradox of “centralised federalism.”
ii. In culturally diverse, developing countries like India, federalism
is chosen not merely for administrative requirements but for
the very survival of the nation
iii. The framers of the Indian Constitution refrained from creating
a fully federalised political system in India at the time of the
country’s independence, because of their fear of further
disunity and secessionist tendencies in the country which was
already being subjected to partition
5. KC Wheare famously characterised the scheme as ‘quasi-federal
 UNITARY BIAS FEDERAL FRAMEWORK

1. The union parliament has been given the unilateral

discretion to reconstruct the boundaries of the states 1. Existence of two levels of government: a general
2. The Union list contain more subjects than the State list. government for the whole country and two or more
3. In case of a deadlock between the Union and states over regional governments for different regions within that
subjects in the concurrent list, the Union law prevails. country;
4. The union parliament can also legislate on any state 2. Distribution of competence or powers—legislative,
subjects under extraordinary circumstances. executive, judicial, and financial—between the general and
5. The union government also has sweeping economic the regional governments;
superiority in terms of resources as well as in its 3. Supremacy of the constitution—that is, the foregoing
discretion in allocating resources to the states. arrangements are not only incorporated in the
6. Union Government’s power of appointing governors in the constitution but they are also beyond the reach of either
states and dissolving state governments by proclaiming government to the extent that neither of them can
president rule if the Centre deems fit. unilaterally change nor breach them;
7. Single Constitution for both Union and State 4. Dispute resolution mechanism for determining the
governments. competence of the two governments for exercising any
8. Single citizenship power or for performing any function.
9. Institutions of governance like single system of courts,
all-India public services and integrated audit machinery
and the integrated election machinery.
 1. CENTRAL AND REGIONAL GOVERNMENTS

1. 28 States & 8 UTs : governed by the Constitution of India and have no separate constitutions of their own.
2. Special features of some of the States, the Constitution makes special provisions for them not applicable to other States [arts 371, 371-
A–J] (asymmetric federalism)
3. Union Territories are expected to be subject to the direct administration of the Union of India, the Constitution also makes special
provisions for some of them[eg, art 239-AA for Delhi and art 239-B for Puducherry.]
4. Special arrangements are also made separately for the Scheduled and Tribal Areas
a. While the provisions of the Fifth Schedule apply to the Scheduled Areas and Scheduled Tribes in any State, the provisions of the
Sixth Schedule apply to the areas in the States of Assam, Meghalaya, Tripura, and Mizoram.
5. According to Article 1(1) of the Constitution, ‘India, that is Bharat, shall be a Union of States.’
a. India must have more than one State.
b. Whether Article 1(1) may be deleted or amended to read ‘India, that is Bharat, shall be a Union’ or ‘unitary State’ stands answered by
the basic structure doctrine
c. Federalism is part of the basic structure of the Constitution and is therefore beyond the power of amendment (SR Bommai)
d. While federalism is a part of the basic structure, two features of the Constitution show the centralisation feature of Indian
federalism
i. Parliament’s power to alter State boundaries
ii. Representation of the States in Parliament
e. A third level of governments at the village and municipal levels has also been introduced into the Constitution by way of the
Seventy-third and Seventy-fourth Amendments. This level was already envisaged in Art 40 of the Directive Principles of State Policy.
i. Within the jurisdiction of the States under Entry 5 of List II of Schedule VII to the Constitution
ii. While these Amendments had hoped to strengthen local government in India, strictly speaking, local government bodies remain
within the competence of the States for devolution of powers and functions
 2. DISTRIBUTION OF POWERS

1. Legislative Powers (Chapter 1 of Part XI, arts 119, 209.)

a. Article 245—prescribes the territorial jurisdiction of the Union Parliament and the State legislatures
i. The former can make laws for the whole of India or any part of it, while the latter can make laws for the territory of that State or
any part of it.
b. Article 246 of the Constitution lays down the law for the exercise of power over the subjects
i. The legislative items included within List I are much more numerous
ii. In case of conflict, items in List I override items in Lists II and III and items in List III override those in List II.
iii. Any residuary subject also has precedence over the powers of the State legislatures in Lists II and III
iv. For items in List III, if the State law conflicts with the law of Parliament the latter prevails over the former, though with the prior
approval of the President, State law may also prevail over the law of Parliament (Art 254)
v. No tax entry is included in List III
vi. Legislative powers assigned to the Union have primacy over the powers assigned to the States
vii. Parliament may override the foregoing distribution of legislative powers between the Union and the States.
1. During an emergency arising from war, external aggression, or armed rebellion Parliament may make laws on any item in List II
2. Parliament may make law on any subject ‘for implementing any treaty, agreement or convention with any country or countries
or any decision made at any international conference, association or other body’;
viii. If the President of India is satisfied that the government of any State cannot be exercised in accordance with the provisions of
the Constitution, he may assume all the powers of the State and authorise Parliament to make laws for that State
ix. The working of the Constitution so far, however, establishes that the primary distribution of legislative powers is the norm and
the exceptions have been invoked only in limited cases.
 3. SUPREMACY OF THE CONSTITUTION

1. Unlike some other constitutions, the Constitution of India does not have a supremacy clause. However, neither its makers, nor the
courts, nor the governments at any level have entertained any doubt at any stage that it is the highest law of the land binding on all
organs of the State.
2. In India, the supremacy of the original Constitution has been established not only to the extent that all actions of different organs
created under it must comply with it but also that the amending body must exercise its amending power subject to the condition that
the basic structure of the Constitution is not undermined

DISPUTE RESOLUTION MECHANISM

1. For a legal dispute between the Union and the States, the Supreme Court may be approached directly by filing a suit in its original
jurisdiction.
2. Since the commencement of the Constitution, only a few occasions have arisen for availing this remedy.
3. In other disputes of a collateral nature in which only one of the parties is the Union or any of the States, the matter may be raised in any
court having the territorial or pecuniary jurisdiction.
4. However, as a matter of practice as well as convenience all such questions are initiated in the High Court having the territorial
jurisdiction in the matter because the subordinate courts have no power to invalidate laws made either by Parliament or by a State
legislature or to issue writs.
5. The mechanism of courts for dispute resolution between the Union and States has worked well and no special complaints have ever
been made about it besides general complaints about the judicial process.
 2. DISTRIBUTION OF POWERS

1. Executive Powers
a. With some exceptions, the executive power is divided between the Union and the States on the same lines as the legislative powers.
b. The executive power of the Union extends to all those matters on which Parliament has the power to make laws, as well as to matters on
which it may exercise such power by virtue of any treaty or agreement. However, the executive power of the Union does not extend to
matters included in List III unless otherwise provided in the Constitution or any law of Parliament (Art 73)
c. The executive power of the States extends to matters on which State legislatures have the power to make laws, subject to the condition that
on matters in List III it is subject to the Union’s power. (Art 162)
d. Exceptions
i. the exercise of State executive power must ensure compliance with the laws of Parliament and existing laws applicable in the concerned
State, and for this purpose the Union has the executive power to give such directions to any State as it considers necessary
ii. in the exercise of its executive power the Union may also give directions to any State for the construction and maintenance of means of
communication of national or military importance as well as for the protection of railways within the State etc.
iii. arts 257(1), 258(1), 258(2), 258A, 353(a), 356(1)(a), 360

1. Judicial Powers
a. The Constitution does not divide judicial power between the Union and the States, although in the textual arrangement of constitutional
provisions it places the Union and State judiciary separately.
b. It also authorises Parliament to establish additional courts for the better administration of Union laws and for the creation of an all-India
judicial service.
c. Except for the appointment of judges of the Supreme Court and the High Courts, which is made by the President of India, appointment of
administrative staff and the budget of the Supreme Court are within the jurisdiction of the Union and of the High Courts and subordinate
courts within the jurisdiction of the States. But the same courts administer the laws of the Union as well as of the States [arts 146, 229]
d. In the allocation of legislative powers to the Union and the States, the Supreme Court for all purposes and the High Courts with some
exceptions are placed within the exclusive power of the Union, while the administration of justice, constitution, and organisation of all courts
other than the Supreme Court and the High Courts are placed within the concurrent jurisdiction of both the Union and the States.
e. Therefore, the judiciary was envisaged and arranged as unitary rather than federal to exclude the possibility of local influence
 SARKARIA COMMISSION - 1988

1. Rajya Sabha should change the rules of business of the House to empower itself to play a stronger role as a federal second chamber.
2. More generous use of Article 258 (power of the Union to confer powers etc on states in certain cases) can bring about progressive
decentralisation and cooperative federalism in the working of the centre state arrangements in India.
3. Decentralisation of real power to local institutions
4. Union should occupy only that much field of a concurrent subject on which uniformity of policy and action is essential in the larger interest of
the nation, leaving the rest and details for state action.
5. However, to ensure uniformity consultations may be carried out with the state governments individually and collectively at the forum of the
proposed Inter-Governmental Council. It was not recommended that the consultation be a constitutional obligation.
6. Residuary powers of legislation in regard to taxation matters should remain exclusively in the competence of Parliament while the residuary
field other than that of taxation should be placed on the concurrent list.
7. On Article 356, it was recommended that it be used "very sparingly, in extreme cases, as a measure of last resort, when all other alternatives fail
to prevent or rectify a breakdown of constitutional machinery in the state.
8. In order to restructure the institutional framework, the Commission recommended establishment of an Inter-State Council. The Commission also
recommended that the National Development Council and the Planning Commission shall be entrenched as constitutional bodies and the
Finance Commission shall be made a permanent constitutional agency.

NATIONAL COMMISSION TO REVIEW THE WORKING OF THE CONSTITUTION - 2000

1. Management of Disasters and Emergencies, Natural or Man-made should be included in the Concurrent List
2. Individual and collective consultation with the States should be undertaken through the Inter-State Council
3. The Commission suggested that the River Board Act, 1956 and Interstate Water Disputes Act, 1956 be repealed and river water disputes be
heard by a bench of not less than three Judges and if necessary, a bench of five Judges of the Supreme Court for the final disposal of the suit
4. Commission recommended setting up of “Interstate Trade and Commerce Commission” under article 307 read with Entry 42 of List-I.
5. The 11th and 12th Schedules of the Constitution should be restructured to create separate fiscal domain for panchayats and municipalities.The
concept of a distinct and separate tax domain for municipalities should be recognized.
 ASYMMETRIC FEDERALISM

1. India’s Constitution contains two principle forms of asymmetry:

a. specific arrangements permitting higher degrees of autonomy and self-governance for individual States and regions (Fifth
and Sixth Schedules; Article 370 relating to Jammu and Kashmir; 371A relating to Nagaland; and 371G relating to Mizoram)
b. provisions that mandate some States to operate positive discrimination measures to mitigate inter- or intra-State inequality
(Article 370; parts of Article 371)
2. There are also more basic differences with regard to the governance of States and Union Territories, with the latter subject to
greater central control.
3. IMPORTANCE OF ASYMMETRIC FEDERALISM IN INDIA:
a. Ensures unity in diversity as it helps to respects and preserve vulnerable groups through special powers.
b. Satisfy different needs of various federal units which are a result of an ethnic, linguistic or cultural difference.
c. Help to protect fundamental rights and compensate for initial inequalities in the social system.
d. Allowance for separate laws to govern different religious groups, and provisions for various kinds of affirmative action for
extremely disadvantaged groups help in ensuring social justice to them.
e. Gives better representation to minority areas in the democracy
FEDERALISM FORMATS
COOPERATIVE FEDERALISM
COMPETITIVE FEDERALISM
 ARE T"H!EY' BOTH COMPL�E!MENTARY:?
WHAT SHOULD INDIA FOLLOW?
► Though :c:ooperati,ve and :C)ompetitlv'e federali:sm seem to b:e c:onitrary, they are in fact sides of the same coin
as they hiave tlhe same basic un:derl1yin:g princilple - progre:ss of t:he n,ation: as a wh:ole� In fact t:he NITI Aa·y-og
e-b:ook talks. :of c:ompetitiv·e fed!:eraHsm as a force m 1ultiplier to achi:eve th:e obJectilve of cooperative
fed!eral!ism�
► Comp:etitive:ness: is a:n i: d:ea that has stoo,d th,e test •Of time and :ln: dia can only achJeve its. am ibitious growth
targets by enhanc:ing competi;tiv=eness at all levels =Of government� However, improving· c:o,mpet.itivene= ss
re qulres economii:c an=d social de:velop,m:ent, wh:l :cih in turn req!uires coordination of our economic and so:cial
1

po!licies, .ai:cross various le,tels of g:ov:ernment�

► For exa:mplie, implem:enitiin:g GST re:quired co:nsensus amon.g state:s and n:ow, we have t:he GS:T ,Cou:n:c:il, with:
states as equal members wh =o are !P:art of national fiscal p:oli-cy.
1
► A.niother examp:le, is l!n,dia s im:provem:ent: in the Wo:r!ld B,ank.-'s Ease of Do:ing B,uslness lnde:x .. W,e have been
a!ble to, jump 65 pos-ltions in the rankings only b,eca use states ibroug:ht ab,out ma1ny reforms* T1hls was made
1

possib!le thro:ugh the creation of an EoDB !Index ·for Indian States an=d the releas,e an:n 1ual rankings to in:dicate
are:as in: which tihey a re laggtng�
1
 CONCLUSION
indlia nee:ds a mix of !both com1petit,ive an::d cooperative 'fed:eralism or as NITI Aayog
calls its competitive coop,erat1ve federalism, to !move ahead. In fact, instituting a
system of cooperative and competitive federalism has been a hallmark of India's
p,olicy-m.aking in the past five years and has achieved considerable results.
Competition is required to fight the complacency of cooperation and cooperation
helps to balance out the vigor of competition.
• A di"ive!rse and large country l'ike, 1lndia require,s a p,roper b:alance between th,e six
pillars of federalism: autonomy of states1 national integration, centralisation:,
dece:ntralisation nationalisa·tlon, an,d regionalisation.
• Extreme political centralisation or chaotic political decentralisation can both lead
to the weakening of Indian federalism.
• Controll ling these extremes, iis a challenge, as federalis:m must reconcile the need
for national unity on the one hand, and o:n the other, regional autono:my.
 DELHI - LG

1. SC Judgement
a. notification dated 21-05-2015 issued by the Union Ministry of Home Affairs, that provided that the Lieutenant Governor (‘LG’) of
NCTD shall exercise control “to the extent delegated to him from time to time by the President” over “services”, in addition to
“public order”, “police”, and “land.” The LG may seek the views of the Chief Minister of NCTD at his “discretion”
b. The term “Services” are covered under Entry 41 of the State List of the Seventh Schedule to the Constitution. The 2015 notification
excludes Entry 41 of the State List, which has as its subject, “State Public Services; State Public Services Commission”, from the
scope of powers of GNCTD
c. The Delhi High Court declared that “the matters connected with ‘Services’ fall outside the purview of the Legislative Assembly of
NCT of Delhi.”
d. On appeal, two-Judge Bench of Supreme Court opined that the matter involved a substantial question of law about the
interpretation of Article 239-AA, which deals with “Special provisions with respect to Delhi”, and hence referred the issue of
interpretation of Article 239-AA to a Constitution Bench.
e. In 2018 Constitution Bench judgment, (2018), it was held that NCTD is not similar to other Union Territories and the constituent
power of Parliament was exercised to treat the Government of NCT of Delhi as a representative form of Government. It was held that
the executive power of NCTD is co-extensive with its legislative power, that is, it shall extend to all matters with respect to which it
has the power to legislate. Thus, the legislative and executive power of NCTD extends to all subjects in Lists II and III, except those
explicitly excluded.
f. However, in view of Article 239-AA(3)(b), Parliament has the power to make laws with respect to all subjects in List II and III for NCTD.
Further, it was held that the phrase “insofar as any such matter is applicable to Union Territories” is an inclusive term, and “not one
of exclusion”. and cannot be used to restrict the legislative power of the Legislative Assembly of Delhi.
i. In 2019, a two-Judge Bench of A.K. Sikri and Ashok Bhushan, JJ. delivered two separate judgments. The judges differed on
whether “services” are excluded in view of Article 239-AA(3)(a) from the legislative and executive domain of GNCTD.
ii. In 2019 split verdict, in2018 Constitution bench judgment did not interpret the phrase “insofar as any such matter is applicable
to Union Territories”
 DELHI - LG

1. SC Outcome
a. Delhi under the constitutional scheme is a Sui Generis (or unique) model, and is not similar to any other Union Territory. It said Delhi
presents a special constitutional status under article 239AA.
b. The legislative and executive power of Delhi over Entry 41 (services) shall not extend over to services related to public order, police
and land. However, legislative and executive power over such services such as Indian administrative services, or joint card of
services, which are relevant for the implementation of policies and vision of NCT of Delhi in terms of day to day administration of the
region, shall live with Delhi

1. Ordinance
a. The Ordinance forms a “permanent” National Capital Civil Service Authority (NCCSA) with the Chief Minister as chairperson, and the
Chief Secretary and Principal Home Secretary as Member and Member Secretary, respectively.
b. The NCCSA exercises authority over civil service officers working in all Delhi government departments except those in public order,
police and land.
c. It would decide transfers, postings, prosecution sanctions, disciplinary proceedings, vigilance issues, etc, of civil service officers
deputed to Delhi government departments by majority of votes of the members present and voting.
d. The Lieutenant Governor’s decision, in case of a difference of opinion, would be final.
 IMPACT

1. The bureaucrats in the NCCSA could possibly veto the Chief Minister.
2. The Ordinance explains that the Chief Secretary would represent “the will of the officers of GNCTD” (Government of the National
Capital Territory of Delhi).
3. The Supreme Court had envisaged a “neutral civil service” carrying out the day-to-day decisions of the Council of Ministers
a. The NCCSA attempts to bring civil service officers out of the administrative control of the elected Ministers, who embody the will of
the people, and transform them into a power lobby.
b. The NCCSA negates the intrinsic link between government accountability and the principle of collective responsibility highlighted in
the judgment. The Ordinance, by creating the NCCSA, skirts the emphasis laid down in the judgment on the “triple chain of
command” in the governance of Delhi.
c. The court had held that the civil services were accountable to the Ministers of the elected government, under whom they function.
The Ministers were in turn accountable to the legislature, and the legislature ultimately to the people of Delhi. The chain of
command was forged by the Supreme Court to ensure democratic accountability.
4. The Ordinance also does not heed the President’s own Transaction of Business Rules of the Government of National Capital Territory of
Delhi, 1993.
a. The Supreme Court had held in 2018 that “a significant aspect of the Rules is that on matters which fall within the ambit of the
executive functions of the Government of National Capital Territory of Delhi (NCTD), decision-making is by the government
comprising the Council of Ministers with the Chief Minister at its head”.
5. The court had also dismissed the K. Balakrishnan Committee’s specific recommendation that the “services” should not be included
within the legislative and executive ambit of the NCTD.
6. The Ordinance is based on the argument that the Supreme Court has itself acknowledged the superior authority of Parliament to make
laws for the national capital. A review petition filed by the Centre in the Supreme Court claimed that Delhi is not a “full-fledged State”
but only a Union Territory which is an extension of the Union
7. The Ordinance has put the LG back in the driver’s seat by giving him the power to take a final call on any decision taken by the NCCSA
regarding services. This is despite the fact that the LG’s powers were curtailed way back in 2018 by another Constitution Bench
judgment.
8. The court had held that even the “limited discretionary power” afforded to the LG “ought to be exercised in a careful manner in rare
circumstances such as on matters of national interest and finance. The Lieutenant Governor could not refer every matter to the
President”.