CONTENTS OF THIS PRESENTATION

First Part of Unit 1

Federal System
Unitary & Federal; Presidential and Parliamentary; Difference - Union, Federation, Confederation.
Federalism in India
Co-operative & Competitive Federalism
Organization of States - Historical Timeline.
Articles 370 and 35A -
their Backdrop,
Constitutionality of Provisions,
Present scenario,
Abrogation process,
CASE Laws.
Special provisions relating to specific states (Article 371-A to 371-J) -
their history,
why special treatment,
constitutional provisions and features.
Local Self-Government
decentralisation
why LSG?
3-tier Panchayat System
73 and 74 Amendment - features
UNIT I Vasavi L S
01 02 03 04 05 06
Federal Organization Recommendation Freedom of Official
system of State. Local self-
of the Trade and Language
Cooperative Relationship government with
Commissions Commerce
Federalism between the special emphasis on
Centre and 73rd and 74th
the State: Amendments.
Legislative,
Financial and
Administrative 07 08
Constitutional provisions Special provisions relating to
of Jammu and Kashmir specific states (Article 371-A
(Art 370) to 371-J)
 FEDERAL SYSTEM
Meaning -
Derivation from Latin word - foedus, which means, “covenant” - the idea of
federalism embodies in itself the ideas of promise, obligation, and undertaking; and
hence, the federal idea draws on collaboration, reciprocity, and mutuality.
Federalism is a method of segregating powers so that the central and local
governments are each within a domain, harmonizing and autonomous.
Definition of federalism -
K.C. Wheare - “the method of dividing powers so that the general and regional
governments are each within a sphere coordinate and independent.”
A.V. Dicey - identified 3 leading characteristics of a “completely developed
federalism” as including the distribution of powers among governmental bodies
(each with limited and coordinate powers), along with the supremacy of the
constitution and the authority of the courts as the interpreters of the constitution.
An important feature of federalism is the division of power
between the central government and the constituent units
under a constitutional scheme that cannot be changed legally
by an ordinary method of central legislation. It is also
essential that the arrangement assures the ability of the
central government to carry out its purposes within the
scope of its authority over the whole area.

Hence general characteristics of a federation are:

Two sets of government constitutionally coordinate
Division of powers between the centre and units.
A federal court as a guardian of the constitution.
Supremacy of the constitution which is rigid.
 Federalism in India:

Federal or Unitary ??

Quasi-Federal Nature of the Indian State

The Indian constitution contains both features of a federal constitution and unitary constitution. For example, despite it
being federal in character, it declares India to be a union of states. Indian federalism has been devised with a strong Centre to
prevent as well as ameliorate conflict of interests of the Centre and the States.

In words of D.D. Basu, the Constitution of India is neither purely federal nor unitary, but it is a combination of both.
Throughout the Constitution, the emphasis is laid on the fact that India is a single united nation. India is described as a Union
of States constituted into a sovereign, secular, socialist and democratic republic. The Constitution of India is federal in
structure and unitary in spirit i.e. it is quasi-federal in nature.
 FEDERAL SYSTEM
In a federation system, there are two seats of power that are autonomous in their own spheres. A
federal system is different from a unitary system in that sovereignty is constitutionally split
between two territorial levels so that each level can act independently of each other in some areas.
There are two kinds of federations:
Holding Together Federation – In this type, powers are shared between various constituent
parts to accommodate the diversity in the whole entity. Here, powers are generally tilted
towards the central authority.
Example: India, Spain, Belgium.
Coming Together Federation – In this type, independent states come together to form a
larger unit. Here, states enjoy more autonomy as compared to the holding together kind of
federation.
Example: USA, Australia, Switzerland.
 FEDERALISM IN INDIA
India is a federal system but with more tilt towards a unitary system of government. It is sometimes considered a
quasi-federal system as it has features of both a federal and a unitary system. Article 1 of the Indian Constitution
states, ‘India, that is Bharat, shall be a union of states’. The word federation is not mentioned in the constitution.
Elements of federalism were introduced into modern India by the Government of India Act of 1919 which
separated powers between the centre and the provincial legislatures.
Federal Features of the Indian Union
Governments at two levels – Centre and States
Division of powers between the Centre and States – there are three lists given in the Seventh Schedule of
the Constitution which gives the subjects each level has jurisdiction in:
Union List
State List
Concurrent List
Supremacy of the Constitution – the basic structure of the constitution is indestructible as laid out by the
judiciary. The constitution is the supreme law in India.
Independent judiciary – the constitution provides for an independent and integrated judiciary. The lower and
district courts are at the bottom levels, the high courts are at the state levels and at the topmost position is
the Supreme Court of India. All courts are subordinate to the Supreme Court.
Unitary Features of the Indian Union
The flexibility of the Constitution – the Constitution is a blend of flexibility and rigidity. Certain
provisions of the constitution can be easily amended. In case the amendments seek to change aspects of
federalism in India, the provision to bring about such amendments is not easy. (Read about types of
majorities in India Parliament using which amendments or certain other provisions are introduced.)
More power vests with the Centre – the constitution guarantees more powers with the Union List. On
the Concurrent List subjects, the parliament can make laws that can override the laws made by a state
legislature on some matters. The parliament can also make laws regarding certain subjects in the State
List.
Unequal representation of states in the Rajya Sabha – the representation of the states in the upper
house is based on the states’ populations. For example, Uttar Pradesh has 31 seats and Goa, 1 in the
Rajya Sabha. In an ideal federal system, all the states should have equal representation.
Emergency powers – the Centre is provided with emergency powers. When an emergency is imposed, the
Centre has increased control over states. This undermines the autonomy of the states.
Integrated judiciary – the judiciary in India is integrated. There is no separate judiciary at the centre and
the state levels.
Single citizenship – in India, only single citizenship is available to citizens. They cannot be citizens of the
state as well. This helps in increasing the feeling of nationality as it forges unity amidst regional and
cultural differences. It also augments fundamental rights such as the freedom of movement and
residence in any part of the nation.
Governor’s appointment – the governor of a state acts as the centre’s representative in the state. The
state government does not appoint the governor, the centre does.
New states formation – the parliament has the power to alter the territory of a state by increasing or
reducing the area of the state. It can also change the name of a state.
All India Services – through the All India Services such as the IAS, IPS, etc. the centre interferes in the
executive powers of the states. These services also offer uniformity in administration throughout the
nation.
Integrated election machinery – the Election Commission of India is responsible for conducting free and
fair elections at both the centre and the state levels in India. The members of the EC is appointed by the
president.
Veto over states bills – The governor of a state can reserve certain kinds of bills for the president’s
consideration. The president enjoys absolute veto on these bills. He can even reject the bill at the second
instance that is when the bill is sent after reconsideration by the state legislature. This provision is a
departure from the principles of federalism.
Integrated audit machinery – the president of the country appoints the CAG who audits accounts of
both the centre and the states.
Power to remove key officials – the state government or state legislature does not have the authority to
remove certain key government officials even at the state level like the election commissioner of a state,
judges of the high courts, or the chairman of the state public service commissions.
 Cooperative Federalism
In 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.
For example, if the federal government is interested in ensuring that national highways are well-
maintained, they might create grants in aid, a specific kind of grant from the federal government
that provides funds for the states to pursue a policy. In this case, the grants in aid would likely be
for purchasing necessary constituents or other supplies or might provide funding to pay
contractors and road, construction workers.
In order to streamline the development process and enhance the progress of all the regions,
cooperation between the Centre and states is of utmost necessity. Such form of cooperative
federalism is required more so in case of India, due to its vastness, enormity and extreme diversity.
India’s cooperative federalism, however, has been greatly affected by the report of Simon
Commission and the resultant Government of India Act, 1935. Indian constitution has heavily drawn
its features from this 1935 Act.
Granville Austin is of the view that the Constituent Assembly of India was the first assembly which
adopted from the very start what is called as the concept of Co-operative Federalism. This concept is
distinct from Wheare's concept of federalism who says that "the general and regional governments of
a country shall be independent of each other within its sphere." As against this, the concept of Co-
operative Federalism implies a strong central government.
This does not mean that the provincial governments are weak. He says that Co-operative Federalism is
the practice of administrative co-operation between general and regional governments, the
practical dependence of the regional governments upon payments from the general governments and
the fact that the general governments by the use of conditional grants, frequently promote
developments in matters which are constitutionally assigned to the regions.
Inter-level cooperation in different fields has been the most significant aspect of Indian federalism.
Many of the state legislatures through formal resolutions, agreed to empower the Parliament to legislate
in regard to levy of succession duty on agricultural lands which under the constitution is a state subject.
Administrative cooperation on a large scale is a remarkable development in the operation of Indian
federalism.
For example,
the central inspectors help the state inspectors in enforcing the provisions of the Drug Act.
Planning in India is a co-operative enterprise in which the basic norms of development are set by
Centre in discussion with the states, a large amount of finance is provided by the center and the
main administrative machinery is supplied by the states.
Another fruitful line of co-operation in India has been in the direction of utilization of the water
resources of the country. For instance, the Damodar Valley Scheme is a joint endeavour in which
the center and the states of West Bengal and Bihar are involved.
The spirit of co-operative federalism in India is observed by following
Distribution of Powers
Supremacy of the Constitution
A Written Constitution
Rigidity
Authority of Courts
Under this arrangement in the Constitution, the Centre is more dominant power, as has been explained
previously.
Some of the norms under which Cooperative federalism is practiced in India are as follows:
Article 263 of the Constitution has provided for the setting up of an Inter-State Council for
investigation, discussion and recommendation for better coordination of relation between the Centre
and the States.
The Zonal Councils set up under the State Reorganization Act 1956 provide another institutional
mechanism for centre-state and inter-state cooperation to resolve the differences and strengthen the
framework of cooperation.
The National Development Council and the National Integration Council are the two other important
forums that provide opportunities for discussion to resolve differences of opinion. Central councils have
been set up by various ministries to strengthen cooperation.
 Competitive Federalism
Competitive federalism is a concept where Centre competes with states and vice-versa, and states
compete with each other. It refers to relations between regional governments (horizontal
competition) and between central and regional governments (vertical competition).
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 globalization, 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 government devolves
funds to the states on the basis of usage of previously allocated funds. Healthy competition strives to
improve physical and social infrastructure within the state.
Competitive federalism is not part of the basic structure of the Indian constitution. It is the decision of
executives.
Various steps have been taken recently to promote Competitive Federalism. These include
the acceptance of the 14th Finance Commission’s recommendations, apart from significantly
enhanced devolution which has enabled states to design and implement programmes better suited
to their needs,
introduction of the GST, and
the abolition of the Planning Commission and establishment of the NITI Aayog.
 THERE ARE 3
WAYS IN
WHICH A
COUNTRY
WITH
It is there least federal The units are indestructible and The units are indestructible but MULTIPLE
structure. India is an so is the Union (or federation, the Union is destructible, i.e.,
indestructible union of whatever you want to call it). In the units can leave the Union if STATES MAY
destructible units (i.e. states
can be destroyed, created,
USA states can't be tempered
with, though they can't leave
they want. WORK
merged, separated, etc by the federation either.
the country but they can't
claim sovereignty and get
separated from rest of the
Union).
 Union Federation
India is a union because in India states do Now coming to Federation, USA can be called a
have rights and powers but nation is Federation because in USA states have more power
determined to be above all. than their Indian counterparts. States cannot be
As India has shown again and again that it is changed, they cannot be merged or separated . In
a Union by taking actions such as creation USA, states have their own separate rules and
of Haryana and Himachal from Punjab , regulations which may be different from rest of the
Jharkhand from Bihar , Chattisgarh from country .
Madhya Pradesh and more recently Recently Florida amended the gun bill and raised
Telangana from Andhra Pradesh. age limit from 18 to 21 and NRA has filed a law
India had also changed boundary of states. suit against the state for not following the 2nd
The city of Roorkee was once a part of amendment .
Uttar Pradesh and now it is in Uttarakhand. In USA, the national government cannot force the
states to push for a certain thing where as in India
it can.
 Organization of States
Federalism is a widely accepted form of government - accommodative
or adaptive nature.
USA came with the first modern written democratic constitution by
overthrowing the colonial monarchism.
UK developed another form of government, in which there was struggle
for supremacy between the crown and the parliament.
India's scenario
Before Independence -
Constitution maker's choice for Federalism - due to its sub-
continental expanse and; socio-cultural and regional diversities.
Before British - plural society of multi cultural diversities and
threat of external aggression.
After British - Cripps and Cabinet mission plans - created weak
Centre due to communal problems.
The Partition led to the acceptance of Unitary form of Federalism.
 After Independence -
Jawaharlal Nehru - uncertain about reorganization of States
because of disintegrative consequences. Fear of viability and
durability of monolingual States, which would not have long term
sustainability.
His Role in Constitutional Debates.
Contrary to Nehru, Ambedkar spoke FOR Reorganization of States.

The reorganization of states would help countries maximize growth and

political strength as well as allow expressions of regional
characteristics. The federation was accepted as a useful and working
system of government in conflict situations (issues of separation, division
of large regions, diverse culture etc.) related to a federal structure.

Within this federal framework, inter-state boundaries among Indian

states since 1950 have continuously been reorganized and the process is
not yet complete.
 Both the committees expressed concern regarding
1950s the new forms of inequalities and hierarchies based
Reorganization of south India on the disproportionate spread of linguistic majority
and minority groups in the reorganized provinces. In
addition, seven other committees were constituted
with regard to the federal structure in Indian polity.
1960s
reorganization of states of western and northern India to overcome this challenge, 2 committees
were appointed by the Indian Constituent
Assembly in 1948.
1970s 1. Dar Commission
the northeastern states 2. JVPC - Jawaharlal Nehru, Vallabhai Patel,
Pattabhi Sitaramayya Committee

The post-independent Indian federal structure has

In 2000
weathered many linguistic, religious, ethnic, regional,
Three new states were created cultural and politico-ideological challenges.
(Uttarakhand, Chhattisgarh and Jharkhand)

Among the linguistic states, Andhra Pradesh was the first state to be formed based on the Telugu speaking population in
south India. In subsequent years, the rest of the Indian states started demanding for separation based on the linguistic
identities.
 1953 1956 From 1947 to 1950

the States Reorganization Committee Many princely states were integrated

As per States Reorganization
(SRC) was established. with neighboring provinces and some
Committee, 1956, the states were
Recommendation - integrated with centrally administered
reorganized in terms of linguistic,
some basic principles of reorganizing of the units. On that basis, demands came from
cultural homogeneity and geographical
states as preservation and strengthening of Orissa, Andhra, Maharashtra, Gujarat
contiguity.
unity and security of India, linguistic and and later Haryana, Himachal Pradesh,
cultural homogeneity, financial and Punjab and Assam for separation. These
administrative efficiency and the successful demands were raised continuously due to
working of the 5-Year Plans their economic backwardness and for
becoming sub-regions within larger
states.

The movement for separation of the Hyderabad-Karnataka region in Karnataka was due to its cultural distinctiveness and
economic neglect.
Similarly, in West Bengal, the Nepalese have been demanding a separate state of Gorkhaland due to their
cultural distinctiveness and economic marginalization.

At present, we still have 30 such demands in front of the Indian Government - to focus on better governance, equitable
economic growth, increase in participative political order and development at the sub-regional level.
Based on new state demands, several regional and sub-regional issues/challenges are also emerging,
such as
preservation of forests,
welfare of tribal communities,
emergence of new regional elites,
rise of other backward castes and
increase in the number regional political parties within a state.

This is evident from the several demands for smaller states of Vidharba (Maharashtra), Saurashtra
(Gujarat), Bodoland (Assam), Coorg (Karnataka), Harit Pradesh (Uttar Pradesh) and others.

This issue of State formation - has become part of Politics - because of Coalition politics.

[STATE FORMATION - core part of POLITICS now]

Cooperative Federalism - a tool for the Regional development - a good step.

However, if the discrimination on various grounds continues, the goal of Co-op federalism will not
be achieved and the development of regions or the nation as a whole will not happen.
 Special Status given to States under the Indian
Constitution [Article 371 A-J]
A State is said to have special status if all the provisions of a Union don’t apply to that state.
Different states may have different provisions.

Special Status, but why??

Our Constitution talks about Equality providing that every individual or group or State has to be
provided with the same types of opportunities, then why provide for special status?

The main objectives behind Article 371 granting special provisions to some states are to meet the
unique needs of the backward regions of these states,
protect the economic and cultural interests of these regions,
combat the local challenges and
protect the customary laws in these regions.

Thus, these special statuses have been provided so as to deal with and solve the problems with extra care.
Article 370[1] of the constitution of India gives such special status to the state
of Jammu and Kashmir.
Article 371 of the Indian Constitution provides special status to 11 other states.
They are -
Maharashtra, and Gujarat - Article 371
Nagaland - Article 371 A
Assam - Article 371 B
Manipur - Article 371 C
Andhra Pradesh - Article 371 D
Sikkim - Article 371 E
Mizoram - Article 371 G
Arunachal Pradesh - Article 371 H
Goa - Article 371 I
Karnataka - Article 371 J.
 Special provision for the States of
Maharashtra and Gujarat
According to Article 371;
nothing under this Constitution
abstains the President from making
an order
Governor would have special
responsibility for -
States of Maharashtra or Gujarat,

Statutory Development Boards (SDBs) for

Statutory Development Boards (SDBs) for Saurashtra,
Vidarbha, Kutch, and
Marathwada and The rest of Gujrat.
The rest of Maharashtra.
Provided that - Annual Reports - on the working of these boards shall be placed
before the State Legislative Assembly.
Why this special Treatment??
After Bombay was divided to MH and GJ - agitation started - the funds
allocated will be reduced thereby slowing down their development.
Purpose ??
ensuring equitable allocation of funds for meeting the developmental
expenses over the said areas.
an equitable arrangement to provide
adequate facilities for technical education and vocational training, and
adequate employment opportunities under the state government
 Special provision for the State of Nagaland
Article 371 A;
No Parliamentary Act shall apply
unless decided by a resolution of the
State Legislature-
the religious and social practice of
the Nagas,
customary law and procedures of
the Nagas,
administration of civil and Why this special Treatment??
criminal justice in accordance
A 16-point agreement signed between the Center and the Naga
with Naga customary laws, People’s Convention in 1960, leading to the creation of the State of
the transfer of land ownership, Nagaland in 1963. It also gives the Governor a special responsibility
of law and order situations in Nagaland, especially in case of
and its resources. internal disturbances occurring in the Naga Hills-Tuensang Area.
Governor - Special powers to deal with internal disturbances after consulting
the Ministerial Council - He shall have the ultimate discretion in case of conflict,
and it's not questionable.
President can order, through notification for cessation of Governor's special
responsibility, after he receives the Annual report that this special responsibility
is no more required.
A Regional Council (35 members) shall be established for Tuensang district.
Governor's discretion to make provisional rules -
the composition and selection manner of its members;
the qualifications of members;
the term for offices and the remunerations;
the conduct of the council;
appointment, and service conditions of officers and staffs for the council;
any other matters relating to the Constitution and proper functioning of the
council
 Special provision for the State of Assam
Article 371 B;
nothing under this Constitution abstains the
President from making an order
for the provision for constitution and
functions of a committee of the State
Legislative Assembly
shall consist of elected Tribal representatives
of the Assembly and such other Assembly
members as may be specified in the order.
Order shall also specify the modifications to
be made in the procedural rules of that
Assembly.
Why this Special Treatment ??
6-year agitation campaign - demanding the identification and deportation of
illegal immigrants - by the All Assam Students’ Union (AASU) in 1979 - concluded
with the signing of the Memorandum of Settlement (Assam Accord) - between the
Central Government and the leaders of the Assam movement, on the 15th August
1985.
What are the settlements reached through the Assam Accord -
Accepted all the migrants who had entered into the State prior to 1st Jan 1966.
Various concerns of Assamese people were identified and the Government
agreed to revise the electoral database on that date.
Government agreed to secure the international border between India and
Bangladesh located at Assam by erecting walls, placing barbed wires, deploying
security forces, etc.
All police charges against the leader of the Assamese movement from the
initiation of the movement until the signing of the accord were withdrawn.
 Special provision for the State of Manipur
Article 371 C;
nothing under this Constitution abstains the
President from making an order
for making provisions for constituting and
functioning of a Legislative Committee which shall
consist of the Assembly members belonging from
the hilly regions.
Annual report - by the Governor to the President
regarding the administration of the hilly regions of
the State,
the executive power of the Central Government Here “Hill regions” refer to those
regions which are to be declared as
shall extend to directing the State on the such in the Presidential order.
administration of those regions.
 Special provision for the State of Andhra Pradesh
or the State of Telangana
Article 371 D; Article 371 D extends to both the States
Added in 1974, of Andhra Pradesh and Telangana.
provides equitable opportunities
and facilities for the people of the
state and safeguards their rights in
matters of employment and
education.
The state government may organise
civil posts or direct recruitment to Article 371E
posts in the local cadre as required. the Parliament may by law provide
for the establishment of a University
in Andhra Pradesh
The President may order for the establishment of an Administrative Tribunal
for these States to exercise such jurisdiction, powers, and authority as may be
specified in the order.
The order of the Administrative Tribunal is effective - after confirmation of
the State Government, or on the expiration of a period of 3 months from the
date of its issuance.
However, can be quashed by a written order of the State Government, before
it becomes effective. To be laid before both houses of the State Legislature.
The High Court of the State shall have no superintending power over the
Administrative Tribunal and no court, excepting the Supreme Court, shall have
any jurisdiction or power over the matters of the tribunal.
No appointment, posting, promotion, or transfer shall be deemed illegal or void
merely because such was not made in accordance with any existing law, providing
for any requirement as to the domicile of the State of Andhra Pradesh.
 Special provisions for the State of Sikkim

Article 371 F;
Incorporated into the Constitution in 1975.
Legislative Assembly - not less than 30
members.
In order to protect the rights and interests of
the different sections of the population in the
state of Sikkim, seats in the assembly are
provided to people of these different sections.
From the date of the commencement of the Constitution Amendment Act, 1975 –
the Sikkim Assembly shall be deemed the Legislative Assembly of the State;
the sitting members - considered - duly elected representatives of Assembly;
Powers - same as a State Legislative Assembly under the Constitution -
Assembly will be formed for 4 years as opposed to 5 in case of other States;
The State shall have one seat in the lower house of the Parliament and be elected
by the State Legislative Assembly;
Parliament may provide for reservation for a certain number of seats in the State
Assembly for sectional representations from the Sikkimese population;
The Governor has special responsibility for peace and equitable arrangement to
ensure social and economic development of different sections of the Sikkimese
population;
All properties located within the State border or outside shall vest in the State
Government;
All actions taken in the State should be done with the Presidential assent and
conform with the Constitutional provisions.
 Special provision relating to the State of Mizoram
Article 371 G;
Legislative Assembly - not less than 40
members.
In addition, following the same provisions as
Nagaland, an act of Parliament would not
apply to Mizoram in matters relating to
religious or social practices of Mizo,
Mizo customary law and procedure,
administration of civil or criminal justice
involving decisions according to Mizo
customary law,
ownership and transfer of land and its
resources.
 Special provisions for the State of Arunachal Pradesh
Article 371 H;
Legislative Assembly - not less than 30
members.
Governor - responsible - for law and order of
the State; - in the discharge of other related
functions; - shall exercise his individual
judgment after consulting the Ministerial
Council.
If any question arises regarding his authority,
his decision is deemed ultimate.
Cessation of this special responsibility - if
President is satisfied that the Governor does
not require the special responsibility anymore.
 Special provision relating to the State of Goa

Article 371 I;
Legislative Assembly - not less than 30
members.

Through this special status, the State

Government of Goa has been empowered to
separately legislate on the dealings of private
property by the Goans.
 Special provisions for the State of Karnataka
Article 371 J;
President may provide special
responsibility to the Governor -
Article 371-J grants special status to six
backward districts of the Hyderabad-
Karnataka region.
The special provision requires that a
separate development board be established
for these regions (similar to Maharashtra
and Gujarat) and also ensures local
reservation in education and government
jobs.
Provided that - Annual Reports - on the working of these boards shall be placed before
the State Legislative Assembly.

Purpose ??
ensuring equitable allocation of funds for meeting the developmental expenses
over the said areas.
an equitable arrangement to provide
Reservations of seats - in technical education and vocational training, for
domiciled students; and
adequate employment opportunities under the state government - for the
people domiciled by birth, for their direct recruitment or promotion.
Jammu and Kashmir
Articles 370 and 35 A
 Backdrop of A. 370
15 Aug, 1947 - 565 Princely States.
Indian Independence Act - Option given to join either of the two dominions - India or Pakistan
OR to remain INDEPENDENT
Joining was through Instrument of Accession [IOA]
Raja Hari Singh of Jammu and Kashmir - initially decided to remain independent and standstill
with India and Pakistan.
Due to an invasion from the tribesmen and army men from Pakistan, he sort the help of India.
India, in turn, sought the accession of Kashmir to India.
Raja Hari Singh signed the instrument of accession on October 26 1947 and the governor general
Lord Mountbatten accepted on October 27th 1947.

INDIA REGARDED THE ACCESSION AS PURELY TEMPORARY AND PROVISIONAL

TERMS INCLUDED IN THE IOA FOR KASHMIR

The schedule appended to the instrument of accession gave parliament the power to
legislate in respect of Jammu and Kashmir only on Defence, external affairs and
communication.
In Kashmir’s Instrument of Accession in Clause 5, Raja Hari Singh, ruler of J&K, explicitly
mentioned that the terms of “my Instrument of Accession cannot be varied by any amendment of
the Act or of Indian Independence Act unless such amendment is accepted by me by an Instrument
supplementary to this Instrument”.
On October 17, 1949, Article 370 was added to the Indian constitution, as a 'temporary
provision', which exempted Jammu & Kashmir from Indian Constitution [except article one
article i.ie., 370 itself], permitting it to draft its own Constitution and restricting the Indian
Parliament's legislative powers in respect to Jammu and Kashmir. It was introduced into the
draft constitution by N Gopalaswami Ayyangar as Article 306 A.
 Article 370
Indian Parliament cannot make any law without the consent of state Assembly.
Jammu Kashmir has its own flag and constitution.
President rule cannot be initially proclaimed in that state instead Governor Rule can be imposed.
[Jammu and Kashmir, on account of its special status, has a slightly different mechanism under
Article 356 of the constitution. Here the failure of governmental function results in Governor’s rule
under Section 92 of the constitution of Jammu and Kashmir. The Governor later obtains the consent
of the President of India. It is only when the Governor’s rule is not revoked for six months that the
President’s rule is imposed in the state under Article 356.]
Jammu Kashmir has its own Criminal code as well.
Except for Defense, Foreign Affairs, Finance and Communications, the Indian Government needs
the State Government’s assent to apply all other laws.
The central govt. has no power to impose financial emergency in the state. Emergency can be
imposed only on the grounds of internal disturbances and imminent danger from a foreign enemy.
Therefore, the state government has the control on how it needs to govern the state without worrying
about the consent of the central government.
 Article 35A
Clause 1 of Article 370 provides that the President, in concurrence with the State government (J&K)
has power to make certain orders.
In pursuance of this provision, Article 35A has been added by Special Presidential order, “The
Constitution (Application to Jammu & Kashmir) Order, 1954”.
Article 35A empowers the Jammu & Kashmir legislature to define the permanent residents of the
state, and their special rights and privileges.
This Article provides for the rights and privileges of the permanent resident of the Jammu and
Kashmir which exclude other person from all State’s benefits who are not the permanent resident of
the State.
Due to this article, Indian nationals belonging to other states cannot buy land or property in the
state of J&K.
It appears in Appendix I of the Constitution.

Both of the Articles have been a source of public outrage & there has been a cry for their repeal.
HURDLES IN REMOVAL:

Article 370 provides for its removal itself. Clause 3 states that the
President ceases the operation of this article, if the Constituent
Assembly of J&K so recommends.
The condition is essential and is also a hindrance because The
Constituent Assembly of J&K was constituted in 1956 and was
dissolved after it drafted the state's constitution in 1957.
So there is no constituent assembly, to recommend removal of
Article 370.
Also, article 35A was not passed as per the Amendment process
given under Article 368, but was inserted on the Recommendation of
Jammu and Kashmir constituent assembly through president.
CHANGES MADE BY THE RECENT LEGISLATIVE EXERCISE

According to article 370, as originally stood, recommendations of the constituent assembly of Jammu
and Kashmir was required for President to issue notification on article 370[3] to repeal or modify it.
However, the president by an order, dated on 5th August 2019 [constitution application to Jammu and
Kashmir Order, 2019] has replaced the Presidential Order of 1954 and made a change in article 367 to
state that “constituent assembly” will read as “Legislative Assembly of State”
Since the Legislative Assembly of Jammu and Kashmir was dissolved and the state was under President's
rule since November 2018, the recommendation of Parliament has been treated as Recommendation of
Legislature by the president.
The notification stated that "all provisions of the constitution, as amended from time to time, without
any modifications or exceptions, shall apply to the state of Jammu and Kashmir notwithstanding any
contrary contained in article 152 or article 308 or any other article of the Constitution or any other
provision of the Constitution of Jammu and Kashmir or any law, document, judgment, order, by law,
rule, regulation, notification, customer or usage having the force of law in the territory of India, or any
other instrument treaty or agreement as envisaged under Article 363 or otherwise".
The Parliament has also passed Jammu and Kashmir Reorganization act 2019 to bifurcate the states into
Union Territory of Jammu and Kashmir and Ladakh.
CASES ON J&K'S SPECIAL STATUS

Prem Nath Kaul v. J&K (1959)

Challenge to Big Landed Estates Abolition Act, 1950 on the ground that it was unconstitutionally enacted by Maharaja
Yuvraj Karan Singh (Hari Singh’s son).
The Supreme Court upheld the Act.
The court held that the Maharaja’s plenary legislative powers were not limited by Article 370.

Sampat Prakash v. J&K (1968)

Challenge to 1959 and 1964 Presidential Orders made under Article 370(1) that extended the operational period of Article
35(c). Article 35(c) made preventive detention legislation immune in J&K from fundamental rights claims.
The petitioner made two primary arguments:
Article 370 ceased to exist after J&K Constituent Assembly dissolves in 1957.
Even if Article 370 persists, President’s power to amend orders under Article 370(1) ceased after the J&K Constitution
came into force.
The Supreme Court upheld the Presidential Orders:
Article 370 will only dissolve upon the recommendation of the Constituent Assembly under Article 370(3).
The power to issue orders includes the power to add, amend, vary or rescind them because the General Clauses Act, 1897
applies to the Constitution.
Dr. Shah Faesal Vs Union (2020)

5-judge Constitution bench [NV Ramana, SK Kaul, R. Subhash Reddy, BR Gavai

and Surya Kant, JJ] - refused to refer the petitions challenging the constitutional
validity of the Centre’s move to abrogate Article 370 to a larger bench.
The Court was hearing the limited issue regarding the reference being made to a
larger bench in the light of the fact that in the case of Prem Nath Kaul v State of
Jammu and Kashmir - held - Article 370 was temporary in nature,
however, the subsequent judgment of Sampat Prakash v. State of Jammu and
Kashmir, reversed the aforesaid position, - recognizing Article 370 as a permanent
provision giving perennial power to the President to regulate the relationship
between the Union and the State.

Held in the present case - There is no conflict between the judgments in the Prem
Nath Kaul case and the Sampat Prakash case, the bench said that judgments
cannot be interpreted in a vacuum, separate from their facts and context.
Observations made in a judgment cannot be selectively picked in order to give
them a particular meaning.
Manohar Lal Sharma v. Union of India (2021 - pending case)

FACTS -
August 5 2019 - the Union government diluted Article 370, revoking J&K’s special status. First,
President Ram Nath Kovind issued presidential order CO 272.
Article 370 could only be amended by the recommendation of the J&K Constituent Assembly. The
presidential order (CO 272) allowed the Union to amend Article 370 without the recommendation
of the Constituent Assembly.
It did this by amending another part of the Constitution that explains how the Constitution should
be interpreted (Article 367). The amendment made it such that the reference to the ‘Constituent
Assembly’ in Article 370(3) became a reference to the ‘Legislative Assembly'.
2018 - Since J&K was under President’s Rule at the time, the powers of the J&K Legislative Assembly
were vested in the Union Parliament. So, a few hours after CO 272 was issued, Rajya Sabha
recommended the abrogation of Article 370, via a Statutory Resolution under Article 370(3).
August 6 - President Kovind issued a Proclamation, CO 273, putting into effect Rajya Sabha’s
recommendation. All clauses of Article 370 ceased to operate, except clause 1 which was amended to
state that the Constitution of India applies to the State of J&K. This removed the special status of J&K.
Finally, on August 9, the Union Parliament bifurcated the State of J&K into two Union Territories by
passing the Jammu and Kashmir Reorganisation Act, 2019. The two new Union Territories are J&K and
Ladakh – only the former retained a legislative assembly.
ISSUES

Can Article 370(1)(d) be validly used to alter the interpretation of Article 370, as was done by presidential
order CO 272?
Do the Statutory Resolution and CO 273 violate the fundamental democratic rights of the people of J&K
under Articles 14 and 21 of the Constitution, by abrogating Article 370 without their consent during
President’s Rule?
Does the Jammu and Kashmir (Reorganisation) Act, 2019 violate Article 3 and Part III of the Constitution?

Petitioners Arguments -
‘doctrine of colourability’ - the doctrine prohibits the passing of legislation that seeks to indirectly do
something which is not allowed to be done directly. Article 370(3) prohibits the President from amending
Article 370 without the concurrence of the Constituent Assembly. CO 272 and 273 in effect amend Article 370
without the Assembly’s concurrence.
They contend that the Jammu and Kashmir Reorganisation Act of 2019 was unconstitutional under Article 3.
Article 3 of the Constitution does not give the Parliament powers to downgrade federal democratic states into
a less representative form such as a Union Territory.
The petitioners further contend that in a federal democracy, the right to autonomous self-government,
specifically with respect to constitutional and political status, is a fundamental right under Part III of the
Constitution and cannot be taken away without the due procedure established by the law.
LOCAL SELF-GOVERNMENT
DEMOCRACY is considered as one of the best forms of government because it ENSURES liberty of
thought, expression, belief, faith and worship, equality of status and opportunity, fraternity as well as
the right to participate in political decision making.

Decentralization is a process of transferring power to popularly elected local governments.

Transferring power means providing local governments with
greater political authority (Ex. convene local elections or establish participatory processes),
increased financial resources (Ex. through transfers or greater tax authority), and
providing more administrative responsibilities.

DEMOCRATIC DECENTRALISATION leads to development and good governance of rural and

urban India
 Decentralization leads to the empowerment of the local people through de-concentration and
devolution. Decentralized governance seeks to tap local initiatives and practices by involving grass roots
organizations such as self-help groups.
Another important feature of decentralized governance is interactive policy-making which leads to
decentralized decision-making.
The interactive policy is a process where government and non-governmental sectors such as the private
sector, non-governmental organizations, communities, grassroots organizations, pressure groups all
PARTICIPATE in decision-making so as to influence issues and suggest alternatives.

Therefore, decentralized governance is an alternative strategy of development, which is a people-centred,

participatory and bottom-up development mechanism.
IN INDIA -

Gross roots governance has been a major concern of the planning process in Indian ever since the
introduction of Panchayati Raj in 1959. It is realized that development efforts in India DID NOT
address the issues of equity and to the development of the poor. Therefore, there is a need to redirect
development efforts towards the poor and those at the gross roots.

The 73rd and 74th Constitutional Amendment Acts have been major steps in the direction of
decentralized governance in India.
The 73rd Constitutional Amendment Act relates to introducing reforms in rural local bodies,
whereas
The 74th Constitutional Amendment Act relates to bring reform in urban local bodies.

These amendments have accorded constitutional recognition to rural and urban local bodies.

The Acts aims at integrating the concept of people’s participation in a formal way with the planning process
on the one hand and the devolution of responsibility to the people themselves on the other.
 DEMOCRATIC DECENTRALISATION
IN RURAL AREAS

After independence, rural development forms the CRUX of India’s development strategy. Rural development
programs aim at the improvement of the living standards of the rural poor by providing them opportunities for
the optimum utilization of their potential through active participation in the development process.

In order to improve the participation of rural people in the process of development and involvement in
decision-making and decentralized planning, the government of India has made the 73rd Constitutional
Amendment in 1992 to provide constitutional recognition to Panchayati Raj Institutions.
The Constitution through the 73rd amendment visualizes PANCHAYATS as institutions of local self-
government, it is subjected to the extent of devolution of powers and functions to the will of the state
legislature.
For the first time, self-government is located at the Panchayat level. The locality has become the basis of
planning. The gram panchayat is entrusted with the responsibility for planning that is done by the people
through GRAM SABHA. The amendment provides for decentralized governance at the district and even
lower levels. It has created people-centred institutions at the district, block and village levels. The amendment
devolved a package of powers and functions, to Panchayati Raj institutions.

The ELEVENTH Schedule lists out 29 subjects to be transferred to Panchayat Raj bodies. The Panchayat Raj
institutions are responsible for the planning and implementation of programmes related to social justice and
economic development.
The constitutional amendment has provided for the ESTABLISHMENT of the State Election
Commission and State Finance Commission.
With the establishment of these commissions in the states, there is a considerable improvement in the
process of democratic decentralization in rural areas.
 The first Panchayati system (called “Panchayati Raj”) came up in Nagaur city of Rajasthan in 1959 as per
the recommendations of the Balwant Rai Committee.
far-reaching work in the development - Balwant Rai was given the title - “Father of Panchayati Raj.”
Gradually, this system was adopted by other states like Andhra Pradesh and Maharashtra.
However, the Constitution did not lay an obligation upon governments to constitute panchayats. Article
40 only provided a Directive Principle of State Policy that said the State should organise village
panchayats and give them the necessary powers and authority to function, but this was not mandatory.
The L.M. Singhvi Committee - 1986 - to study the problems faced by panchayats.
Recommendation - panchayats should be constitutionally recognised, promoted and preserved.

Thus, Article 40 was finally solidified in Part IX by the Constitution (Seventy-Third Amendment) Act, 1992.
GRAM SABHA

The very basic unit of the Panchayati system is the Gram Sabha.
It has been defined by Article 243(b) of the Constitution - the body of all the persons registered on the
electoral rolls of a village.
This permanent body is the body of the electorate. This means that all other institutions – Gram
Panchayat, Zilla Parishad, etc. – are elected by the Gram Sabha. Moreover, the Gram Sabha acts as a
forum where people can DISCUSS matters of governance and development.

Therefore, Gram Sabha is the primary and fundamental component of the local self-government system.
However, the extent of its powers depends upon the policy of the state in which the village is located, as
mentioned in Article 243A.

The membership of a Gram Sabha is restricted to persons above the age of 18 living in that village. This is
done so that the best decisions, which are in line with the interests of the village, can be made.
 CONSTITUTION OF PANCHAYATS - ARTICLE 243(B)
‘PANCHAYAT’ - an institution of self-government in rural areas.

Article 243B provides for the establishment of a three-tier Panchayati system:

At the village level i.e. Gram Panchayat

At the intermediate level i.e. Panchayat Samiti
At the district level i.e. Zila Parishad

Intermediate-level panchayats, however, only exist in states where the population exceeds twenty lakhs.
GRAM PANCHAYAT

Gram Panchayat is the lowest level in the panchayat pyramid system.

Each village is divided into even smaller units called wards, each of which selects a representative of its
own. They are called Ward members or the Panch.
The Gram Sabha also elects the head of the Gram Panchayat, called the Sarpanch.
Therefore, the Sarpanch and the Panch together make up the Gram Panchayat.

Main work - to take care of social issues, construct and maintain schools, roads and drainage facilities,
etc., and to levy and collect local taxes.

Gram Panchayat is accountable to the general body of voters in the village, i.e. the Gram Sabha, as well as to
the two levels of authority above it in the hierarchy.
PANCHAYAT SAMITI

The Panchayat Samiti is the intermediate level in the hierarchy. It oversees the working of the Gram
Panchayats of all the villages located in the block under its jurisdiction.
The Panchayat Samiti is headed by the Pradhan. He or she is elected by a group consisting of all the
members of the Panchayat Samiti as well as all the Panchs of the Gram Panchayats coming under it.

ZILA PARISHAD

It is also known as District Panchayat, this is the highest level of panchayat in the hierarchy of rural self-
government. It oversees the working of the Panchayat Samitis of all the blocks in the district of its
jurisdiction, as well as all the Gram Panchayats under them.
Moreover, it controls the distribution of funds among all the Gram Panchayats. It is responsible for making
developmental plans at the district level.
The Zila Parishad is headed by the Chairman. It also has a Chief Executive Officer as a member, who is
elected by the State government.
 DEMOCRATIC DECENTRALISATION
IN URBAN AREAS

India, like many other developing countries, has been experiencing rapid growth in recent decades. India’s urban
population, which was hardly 10 percent at the beginning of the 20th century, has increased by 40 per cent of the
total population in 2020, placing increasing strain on the country’s urban infrastructure and the
From time to time, many committees and commissions are appointed to suggest measures to revitalize them.
Almost all committees recommended strengthening the Urban Local Bodies (ULBs). To strengthen the urban
governance, parliament enacted the 74th Constitutional Amendment Act 1992.

This Act provided constitutional recognition to Urban Local Bodies. This amendment not only provides
constitutional status to the urban local governments but also a number of other measures are incorporated to
strengthen their democratic functioning, resources and powers.

This Act is intended to give a more focused thrust to decentralization and the creation of a democratic governance
structure at the urban areas.
 Decentralization leads to the empowerment of the local people through de-concentration and
devolution. Decentralized governance seeks to tap local initiatives and practices by involving grass roots
organizations such as self-help groups.
Another important feature of decentralized governance is interactive policy-making which leads to
decentralized decision-making.
The interactive policy is a process where government and non-governmental sectors such as the private
sector, non-governmental organizations, communities, grassroots organizations, pressure groups all
PARTICIPATE in decision-making so as to influence issues and suggest alternatives.

Therefore, decentralized governance is an alternative strategy of development, which is a people-centred,

participatory and bottom-up development mechanism.

Three Types of Municipalities in every state -

Nagar Panchayat - for a transitional area, that is, an area in transition from a rural area to an urban area.
Municipal council - for a smaller urban area.
Municipal corporation - for a larger urban area.
GANDHIAN DREAM OF GRAMA SWARAJ

Mahatma Gandhi is India's beacon for socio-political and cultural development. Through his
philosophical and practical ideology, he has motivated many generations.
His thoughts on Gram Swaraj, are his dreams of creating in India's every village.
The term 'Swaraj' is a Sanskrit word, which means self-rule and self-restraint, and not independence.
In other terms, by inspiring the people to understand their capacity to govern and monitor
authority, Swaraj ought to be achieved.
The Gandhian view of Swaraj's ideal village or village is that it is a full republic, INDEPENDENT of its
neighbours for its own purposes and yet INTERDEPENDENT for many others on which reliance is
essential.

According to Mahatma Gandhi, the use of local capital is FUNDAMENTAL to the growth of the
Panchayat Raj system.
 73RD & 74TH
CONSTITUTIONAL AMENDMENTS
Panchayats are one of the basic features of our society.
The 73rd Amendment Act came into force on April 24th, 1993. This Act aimed to provide the three-tier system
of Panchayat Raj – (i) Village-level; (ii) Block-level and; (iii) District-level Panchayats.

The 73rd Amendment 1992 added a new Part IX to the constitution titled “The Panchayats” covering provisions
from Articles 243 to 243(O); and a new XI Schedule covering 29 subjects within the functions of the Panchayats.

The 74th Amendment Act was passed by the parliament in 1992. It relates to Municipalities (Urban local
Government). It made provisions for Urban local government. It added part IXA containing articles 243 P to 243
ZG. It also inserted the XII schedule.

In contemporary times, as urbanization is rapidly growing, the necessity of urban governance is inevitable, which
too evolved gradually since British times and has taken a modern shape in post-independence times. With the
74th Amendment Act of 1992, the system of urban local governance has been constitutionally recognized.
 SALIENT FEATURES
73RD AMENDMENT ACT, 1992

Gram Sabha - a village assembly, which comprises all the voters of that Panchayat area.
primary body and shall exercise powers according to the State Legislature.
Panchayati members - chosen through direct elections from the territorial constituencies.
territorial constituencies - divided according to the RATIO of population and the number of seats
allotted.
Reservation of seats for SCs and STs - as per their population percentage.
However, the State legislature also has the discretion to decide number of seats.
Not less than 1/3rd of the seats are reserved for women.
Duration of the office - 5 years. However, it can be dissolved before 5 years.
Fresh elections - within 6 months of dissolution, or before the expiry of 5 years.
Disqualification of any member of the Panchayat - if he is disqualified under any law, for the time
being in force, of State legislature elections are concerned.
State Election Commission - responsible for the organization, supervision and conducting of the
electoral process and it can also make provisions for any matters concerned.
 State Legislature - to make provisions for the audit and maintenance of the accounts of Panchayats.
State Legislature - can authorize the Panchayats to levy, collect taxes, tolls, fees and also can provide
them grants-in-aid from Consolidated Fund.
State Legislature may give such powers and functions to the Panchayat as it deems necessary for them to
work as self-governing units. (like in cases of preparation/implementation of plans for economic
development, social justice)
Bar on Interference by Courts - Article 243 O bars the courts to interfere in the Panchayat Matters. The
validity of any law relating to the delimitation of constituencies or the allotment of seats to such
constituencies cannot be questioned in a court. No election to any Panchayat is to be questioned except
by an election petition presented to such authority and in such manner as provided by the state
legislature.

The positive impact of the 73rd Amendment in rural India is clearly visible as it has changed power
equations significantly. Elections to the Panchayats in most states are being held regularly.

Still, this Act LACKS the proper definition of the role of the bureaucracy. It does not clearly define the role
of the state government. On the practical level, people are illiterate in India and they are actually not aware
of these novel features. The Panchayats are dominated by effluents in some parts of the country. The 3 tiers
of the Panchayati Raj have still very limited financial powers and their viability is entirely dependent upon
the political will of the states.
 SALIENT FEATURES
74TH AMENDMENT ACT, 1992
Every State should comprise - 3-tier system
a Nagar Panchayat - for traditional areas;
a Municipal Council or Municipalities - for smaller urban areas;
Municipal Corporation - larger urban areas.
Seats in Municipality - persons chosen by direct election from territorial constituencies in the Municipal wards.
The Legislature of a State may, by law, provide the representation in a Municipality of persons
having special knowledge or experience in Municipal administration;
members of the House of the People and members of the Legislative Assembly of the State;
members of the Council of States and the members of the Legislative Council;
the Chairpersons of the Committees.
Constitution of ward committee
Reservation of Seats for SCs & STs in every Municipality
in these reserved seats, 1/3rd shall be reserved for women belonging to the SCs & STs.
State Legislature may give such powers and functions to the Municipalities as may be necessary to enable them to
function self-governing units. (like in cases of preparation/implementation of schemes for economic development,
social justice)
 It is constituted for a time period of 5 years.
State Legislature - can authorize the Municipality to levy, collect taxes, tolls, fees.
District Planning Committee - constituted in every State at the district level - to consolidate the plans
prepared by the Panchayats and the Municipalities in the district and to prepare a draft development plan
for the district as a whole.
Metropolitan Planning Committees - State Legislature has the authority to constitute.

TYPES OF URBAN LOCAL BODIES

Municipal Corporation Cantonment Board
Municipality Township
Notified Area Committee Port trust
Town Area Committee Special purpose agency

So, the introduction of the Panchayati Raj system was a good step in conveying the message of democracy to
every village of the country.