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General Studies 2 Daily Test 2

Modal answers

Functions and responsibilities of the Union and the States, issues and challenges pertaining to the federal structure, devolution of powers and finances up to local levels and challenges therein.

Separation of powers between various organs dispute redressal mechanisms and institutions.

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1. Montesquieu ‘s doctrine of ‘separation of powers’ checks arbitrariness of government.

This doctrine is hindered by the functional lap of the three organs. Discuss.

Introduction

The term separation of powers is coined by Montesquieu in his book “Spirit of Laws”.

Separation of powers, therefore, refers to the division of government responsibilities into

distinct branches to limit any one branch from exercising the core functions of another.

The intent is to prevent the concentration of power and provide for checks and balances.

Constitutional provisions

Article 50: State shall take steps to separate the judiciary from the executive.

Article 121 and 211: Judicial conduct of a judge of the Supreme Court and the High Courts’

cannot be discussed in the Parliament and the State Legislature.

Article 122 and 212:Validity of proceedings in Parliament and the Legislatures cannot be

called into question in any Court.

Article 361: the President or the Governor shall not be answerable to any court for the

exercise and performance of the powers and duties of his office.

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Overlaps of organs

Overlaps between Legislature and Judiciary

The judiciary can strike down laws that it considers unconstitutional or arbitrary.

The legislature, on its part, has protested against judicial activism and tried to frame laws to

circumvent certain judgements.

Judicial activism is said to be against the principle of separation of powers.

There have been instances where the courts have issued laws and policies through judgements. For

example, the Vishakha Guidelines where the SC issued guidelines on sexual harassment.

In 2010, the SC directed the government to undertake the distribution of food grains.

If the judiciary oversteps its mandate and crosses over into the territory of the legislature or the

executive, it is called judicial overreach.

Overlaps between Executive and Judiciary

The appointments of the judges are made by the executive.

The President and the Governors also enjoy the power to pardon, reprieve, etc. These are direct

judicial functions.

Under the system of administrative adjudication, the executive agencies have the power to hear and

decide cases involving particular fields of administrative activity.

Under Article 142, the Supreme Court functions as an Executive in order to bring about the complete

justice.VISHNU IAS

Overlaps in Executive and Legislature

Executive has,

Power to promulgate ordinance which has the same force of the Act made by the Parliament or the

State legislature.

Authority to make rules for regulating their respective procedure and conduct of business subject to

the provisions of this Constitution.

Powers under delegated legislation.

Judiciary in upholding Separation of Powers

Kesavananda Bharati Case (1973): In this case, the SC held that the amending power of the

Parliament is subject to the basic features of the Constitution. So, any amendment violating the basic

features will be declared unconstitutional.

Swaran Singh Case (1998): Here, SC held the UP Governor’s pardon of a convict unconstitutional.

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SC in Ram Jawaya Kapoor V State of Punjab held that the Indian

Constitution has not indeed recognised the doctrine of separation of

powers in its absolute rigidity but the functions of the different parts or

branches of the government have been sufficiently differentiated

Consequently it can be very well said that our Constitution does not

contemplate assumption by one organ or part of the state of functions that

essentially belong to another.

Indira Nehru Gandhi V Raj Narain, Ray, CJ observed that in the Indian

Constitution there is a separation of powers in a broad sense only.

A rigid separation of powers as under the American Constitution or under

the Australian Constitution does not apply to India.

The Court further held that adjudication of a specific dispute is a judicial

function which Parliament even acting under a constitutional amending

power cannot exercise.

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Unaccountability: One of the demerits of overlapping powers, is that a particular organ cannot be held accountable for its decisions. Eg. Judicial verdicts in 2G and Coal Block allocation case.

Erosion of faith: Repeated interventions of one organ into another's functioning can diminish the faith of the people in the integrity, quality, and efficiency of the other organs.

Accumulation of power: It undermines the spirit of democracy as too much accumulation of powers in organs of government undermines the principle of check and balance.

Adverse effect on development: Excessive infringement on each other jurisdiction may impede smooth functioning of government and hinder public service and overall development.

Check and balance: Organs of government are empowered to prevent arbitrary actions by other two organs. Eg. Power of judicial review by the Supreme Court.

Rule of law: Power sharing laws among the executive, legislative and judiciary enhances accountability and equality in governance.

Checks arbitrariness: Constitutional demarcation of overriding powers decreases the scope of conflict among the government organs.

Cooperation: Overlapping function induces power sharing and power decentralisation.

Disadvantage of

functional overlaps

Advantage of

functional overlaps

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Conclusion

For a democratic polity and multi-diverse nation like India, a

Constitutional system with strict separation of powers is undesirable

and impracticable.

Absolute separation of power hinders development and hence mutual

coordination is indispensable

However, judicious and calculated constitutional functional

overlapping makes way for democratic collaboration of the three

organs of the government.

Such mutual cooperation bridges the executive, legislative and

judicial gap facilitating smooth functioning of government.VISHNU IAS

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2. Financial devolution strengthens local governance. In the light of above sentence, critically examine financial devolution as success factor.

Introduction

The 73rd and 74th constitutional amendments gave recognition and protection to local self government.

The main objective is to achieve the Gandhian philosophy of self-sustaining organizations at grass root levels.

The 15th Finance Commission recommended giving greater financial freedom and powers to panchayats and urban local bodies for year 2020-21.

Fiscal decentralization is nothing but the devolution of taxing and spending powers to lower levels of government.

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Financial devolution and Panchayats

Strengthens democracy at grass root level.

Center and state can nudge local bodies for desired development agenda through financial

devolution with conditions.

Usage of local resources in cost effective service delivery.

Example of Patoda village of Maharashtra: It started its own local voluntary taxation of very

minimal amount in return of free services like clean RO drinking water, hot water, sanitary pads,

CCTV cameras in public spaces, flour mill, spice grinder machine and tractor for agricultural

needs on minimal rent indicates realization of development model at village level with

understanding of local needs.

Increases accountability as direct contact with people is involved.

Devolution based on capital asset creation, Human resource development, social indices and

gender equality will bring desired results.

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Financial devolution and Municipalities

Financial devolution create situation for more innovative, independent and stronger city administration.

With the subsumption of taxes like octroi into GST, financial devolution has become much more critical. Basic service delivery will improve in Indian cities due to the lesser jurisdiction area and focused attention. E.g., Municipality of Mumbai has decided to tax garbage to fulfill its revenue demand.

Unique developmental projects can be executed to improve creditworthiness, autonomous authority to set realistic tax-rates and user charges for the services provided by them and also for pursuing hiring-firing policies.

International cooperation with sister city development initiative. E.g. Central government has allowed state government to borrow directly from the bilateral Official Development Assistance (ODA) partners for implementation of vital infrastructure projects same can be allowed for city administration.

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Financial

devolution

leads to

Reach the

last level of

Beneficiaries

Regional

specific

growth

Growth

and

planning

Formaliza

tion at

Grass

root level

Specific

targets

More

accountability

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Financial devolution in strengthening institutions:

Reach the last level of beneficiaries:

Due to more funds, probability of reaching the beneficiaries is more and on time.

Formalization at grass root level:

Improvement towards designing political process which implies decision making authority at lowest level of organization.

Regional specific growth:

More the decentralization, more specific growth is ensured.

Growth and planning:

To do spatial planning keeping development as goal, institutions can manage and conserve the resources according to the funds received.

More accountability:

Social audit increases transparency and accountability. This strengthens democracy.

Specific targets:

Can mobilize local support and public cooperation for the implementation of programs for sustaining and long term benefits.

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Conclusion

India in 21st Century, acting as an engine of inclusive growth, needs

drastic reforms in the panchayat and municipal finance system of the

country so as to broaden and deepen the resource base which is

done by Financial devolution

The process of tax decentralization and principle of sharing the taxes

is of paramount importance for the inclusive society.

State finance commission hold the major concern in funding the local

self-government

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3. Distinguish Cooperative and Competitive federalism and the role of NITI Aayog in developing these

Federalism is derived from the Latin world foedus, which means agreement. In fact federation is an agreement between two types of governments sharing power and controlling their respective spheres.

India opted for quasi-federal structure after independence. The term “federal” has not been mentioned in the constitution but the working of Indian democracy is essentially federal in structure. However, it is the practical working style of federalism, which brought the concept of cooperative federalism and competitive federalism in India.

Based on the relationship between the central and state government–the concept of federalism is divided into- Co-operative federalism and Competitive federalism.

Competitive federalism is not part of the basic structure of Indian constitution. It is the decision of executives.

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COOPERATIVE FEDERALISM

the Centre and states share a horizontal relationship, where they “cooperate” in

the larger public interest.

It is an important tool to enable states’ participation in the formulation and implementation of national

policies.

Union and the states are constitutionally obliged to cooperate with each other on the matters specified in Schedule VII of the constitution.

COMPETITIVE FEDERALISM

the relationship between the Central and state governments is

vertical and between state governments is horizontal.

This idea of Competitive federalism gained significance in India post

1990s economic reforms.

In a free-market economy, the endowments of states, available resource base and their

comparative advantages all foster a spirit of competition. Increasing globalisation,

however, increased the existing inequalities and imbalances between states.

In Competitive

federalism States need

to compete among

themselves and also

with the Centre for

benefits.

States compete with

each other to attract

funds and investment,

which facilitates

efficiency in

administration and

enhances developmental

activities.

The investors prefer

more developed

states for investing

their money. Union

govt. devolves

funds to the states

on the basis of

usage of previously

allocated funds.VISHNU IAS

NITI Aayog

The National Institution for Transforming India, also called NITI Aayog, was formed via a resolution of the

Union Cabinet on January 1, 2015.

It has replaced the erstwhile Planning Commission established in 1950. NITI Aayog is the premier policy

‘Think Tank’ of the Government of India, providing both directional and policy inputs.

Role of NITI Aayog in developing competitive and cooperative federalism

NITI Aayog has fostered co-operative federalism through structured support initiatives and mechanisms

through states.

NITI Aayog has put the onus of making states an attractive investment destination and timely

implementation of implementing projects on the Chief Ministers, thus promoting competitive federalism

among the states.

In 2017, the Niti Aayog called out for competitive “cooperative federalism” stressing that this formula would

redefine the relationship between the Centre and the States.

Chief secretaries of States in one of the meetings even showcased the best practices being incorporated in

their respective States, a move aimed at promoting cross fertilisation of ideas. There appears to be a silver

lining in the functioning of the Aayog in enabling states competing with each other to promote governance

initiatives in the spirit of “co-operative, competitive federalism”.

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An important objective of NITI Aayog is to establish a dynamic institutional mechanisms where

‘eminent individuals outside the government system’ could contribute to policy making.

The priorities for the Aayog are evident with the suggestions for rationalisation of 66 central

schemes on skill development and making Clean India a continuous program leading to the

formation of three CM sub-committees.

In a subtle manner, NITI Aayog not only puts the onus on Chief Ministers to hasten implementation

of projects for the betterment of the state, but also make the state an attractive investment

destination – a kind of competitive federalism.

Given the greater scope for states to work together and learn from each other, it is obvious that for

federalism to work well, these states must also fulfil their role in promoting the shared national

objectives.

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Conclusion

Cooperative and competitive federalism are not mutually exclusive.

They have the same basic principle underlying i.e. development of

the nation as a whole.

Cooperative and competitive federalism may be two sides of the same

coin. Their complementarity is contingent on many affirmative steps.

A considerable progress has been achieved by the present

government in this regard, however much needs to be done.

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THANK YOU…

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