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Let this be the go to thread.
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Comments

  • Sure.
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  • Here is my first question

    “Federalism has in recent years, witnessed a change from the dogmatic to dynamic approach”. Discuss the changing approach and point out the main deviations in the working of the Constitution of India.(2004)

    Any idea as to what could this question be asking?

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  • canune said:

    Here is my first question

    “Federalism has in recent years, witnessed a change from the dogmatic to dynamic approach”. Discuss the changing approach and point out the main deviations in the working of the Constitution of India.(2004)

    Any idea as to what could this question be asking?

    Not too sure, but this could be in context of Kuldeep Nayyar v UoI.

    Answer structure would be the same about center state relations vis a vis federalism. Starting from state of WB v UoI (coal bearing areas) case to SR bommai.
    dogmatic approach would be as written in constitution and then as seen in us federation, dynamic approach would be as per parliamentary form of governance- center as a trustee of the states- suitable to indian needs and customs.

    But please add/make corrections if can.

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  • edited March 4
    Yea, you are there. Now I wonder what aspects to include and what aspects to not include. The question is regarding approaches to 'federalism' and not 'constitution' alone. As per my reading, it is as follows:

    dogmatic approach
    --------------------------
    - classical federalism as defined by wheare.
    - u.s. constitution as an extension of the dogmatic approach and difficulties experienced, especially during the 1854 civil war.

    dynamic approach
    -------------------------
    - creative interpretation a/o to circumstances. U.S. constitution interpreted widely to make it centralized during world wars.
    - Informed by U.S. experiences, Canada and India have constitutions with a fluid definition of federalism. Indian constitution can be unitary at times. But it is federal also.
    - Despite strong centre, India has decentralized institutions via 73rd and 74th amendments.


    Deviations in the working of the constitution
    ----------------------------------------------------------
    - strong centre, yet difficulty faced by Centre in implementing Hindi as the official language.
    - Unilateral powers u/A. 3, but Centre cannot by itself alter the boundaries without serious hindrances, as evident from the West-Bengal - Odisha land dispute in 1950s.
    - integrated judiciary, a unitary aspect, but district judges are appointed by the Governor, who is informed by the state government.


    Please do feel free to counter or add inputs of your own. Also do comment if the points made are relevant under those headings.
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  • canune said:

    Here is my first question

    “Federalism has in recent years, witnessed a change from the dogmatic to dynamic approach”. Discuss the changing approach and point out the main deviations in the working of the Constitution of India.(2004)

    Any idea as to what could this question be asking?

    The dogmatic approach of Indian federalism prescribes a strong centre with independent states whereas the dynamic approach adopted recently reflects a competitive as well as a co-operative federalism.

    - UDAY, AMRUT , 32 to 42% tax devolution reflect the changes in the approach.
    - The executive power of every state has to be exercised so as to ensure compliance with the laws made by parliament as per article 365. Also, all plans were to be made by planning commission and implemented by states. But NITI ayog replaced it and thrusts upon cooperative federalism.
    - U.P start up policy , different from national approach.
    - labour law reforms in Gujrat & Rajasthan.
    - moving away from one size fits all policy.

    Changes in constitutional workings-

    - introduction of GST and the various changes in taxation scheme (provided in financial relations under constitution).
    - Constitutional provisions are such as to avoid Governor being involved in political thicket but the recent Arunachal Pradesh sacking of CM was contrary to this constitutional working.




    Just a framework, not very clear i think. More inputs from people will help in analysing what actually the question is asking.
    Dum Spiro Spero
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  • canune said:

    Here is my first question

    “Federalism has in recent years, witnessed a change from the dogmatic to dynamic approach”. Discuss the changing approach and point out the main deviations in the working of the Constitution of India.(2004)

    Any idea as to what could this question be asking?

    The dogmatic approach of Indian federalism prescribes a strong centre with independent states whereas the dynamic approach adopted recently reflects a competitive as well as a co-operative federalism.

    - UDAY, AMRUT , 32 to 42% tax devolution reflect the changes in the approach.
    - The executive power of every state has to be exercised so as to ensure compliance with the laws made by parliament as per article 365. Also, all plans were to be made by planning commission and implemented by states. But NITI ayog replaced it and thrusts upon cooperative federalism.
    - U.P start up policy , different from national approach.
    - labour law reforms in Gujrat & Rajasthan.
    - moving away from one size fits all policy.

    Changes in constitutional workings-

    - introduction of GST and the various changes in taxation scheme (provided in financial relations under constitution).
    - Constitutional provisions are such as to avoid Governor being involved in political thicket but the recent Arunachal Pradesh sacking of CM was contrary to this constitutional working.




    Just a framework, not very clear i think. More inputs from people will help in analysing what actually the question is asking.

    Dynamic approach
    --------------------------
    1. GST kind of takes away state's power of taxation which the state earlier had. But it does not erode federalism as centre has agreed to compensate the states to restore ex-ante status quo. Also GST rollout was preceded by 14th FCC increased devolutions from 32% to 42%.

    So GST's example shows that spirit of federalism is still being retained, but its characteristics are being altered to suit current realities, such as the need to create a single internal market.

    2. AMRUT is a good example because it transferred approval power from the Ministry of Urban Development to states and enables urban local bodies to design and implement city plans.


    But I fail to see how other points are suitable for the question

    1. U.P's start-up policy being different from that of centre is very well within the executive domain of the state. And there is no deviation of any sort. Even in a rigid or dogmatic understanding, a state can do so and be different from the centre. Framing a policy is within executive domain.

    2. NITI Aayog/Planning Commission are extra-constitutional bodies, and I fail to see how they can be included in an answer to a question on workings of the constitution. Be it Planning Commission or NITI Ayog, the decision to have both were taken by the Centre.

    3. UDAY may not be a good example because UDAY is a scheme that incentivizes the states to do what they already should have done. There is no shifting of powers between the centre and the state.
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  • canune said:

    canune said:

    Here is my first question

    “Federalism has in recent years, witnessed a change from the dogmatic to dynamic approach”. Discuss the changing approach and point out the main deviations in the working of the Constitution of India.(2004)

    Any idea as to what could this question be asking?

    The dogmatic approach of Indian federalism prescribes a strong centre with independent states whereas the dynamic approach adopted recently reflects a competitive as well as a co-operative federalism.

    - UDAY, AMRUT , 32 to 42% tax devolution reflect the changes in the approach.
    - The executive power of every state has to be exercised so as to ensure compliance with the laws made by parliament as per article 365. Also, all plans were to be made by planning commission and implemented by states. But NITI ayog replaced it and thrusts upon cooperative federalism.
    - U.P start up policy , different from national approach.
    - labour law reforms in Gujrat & Rajasthan.
    - moving away from one size fits all policy.

    Changes in constitutional workings-

    - introduction of GST and the various changes in taxation scheme (provided in financial relations under constitution).
    - Constitutional provisions are such as to avoid Governor being involved in political thicket but the recent Arunachal Pradesh sacking of CM was contrary to this constitutional working.




    Just a framework, not very clear i think. More inputs from people will help in analysing what actually the question is asking.

    Dynamic approach
    --------------------------
    1. GST kind of takes away state's power of taxation which the state earlier had. But it does not erode federalism as centre has agreed to compensate the states to restore ex-ante status quo. Also GST rollout was preceded by 14th FCC increased devolutions from 32% to 42%.

    So GST's example shows that spirit of federalism is still being retained, but its characteristics are being altered to suit current realities, such as the need to create a single internal market.

    2. AMRUT is a good example because it transferred approval power from the Ministry of Urban Development to states and enables urban local bodies to design and implement city plans.


    But I fail to see how other points are suitable for the question

    1. U.P's start-up policy being different from that of centre is very well within the executive domain of the state. And there is no deviation of any sort. Even in a rigid or dogmatic understanding, a state can do so and be different from the centre. Framing a policy is within executive domain.

    2. NITI Aayog/Planning Commission are extra-constitutional bodies, and I fail to see how they can be included in an answer to a question on workings of the constitution. Be it Planning Commission or NITI Ayog, the decision to have both were taken by the Centre.

    3. UDAY may not be a good example because UDAY is a scheme that incentivizes the states to do what they already should have done. There is no shifting of powers between the centre and the state.


    - I didn't mention PC and NITI example in constitutional workings head. PC was not an advisory body in true sense, rather it also allocated the funds (implying a strong centre). Whereas, NITi is purely an advisory body with no function of allocating the funds. PC formulated CSS based on one size fits all formulae( excluding special category states- ) whereas NITi ayog is based on cooperative federalism involving not only states but also village representatives. Note that PC didnt include representatives of state/UTs instead NDC did, local requirements were thus ignored while drafting the pland. Hence, this is a change in dogmatic to dynamic approach.

    - Power outages not only affect local concerns but also adversely affect national priorities like “Make in India” and “Digital India”. Also, default on bank loans by financially stressed DISCOMs has the potential to seriously impact the banking sector and the economy at large. Here, UDAY will act as an instrument of co-operative federalism.

    The performance metrics of several DISCOMs will be there on one platform, which will help to build healthy competition amongst the DISCOMs/States, bringing in an ethos of ‘Competitive Federalism’ among states to achieve the best progress in public schemes. Here again a shift from dogmatic approach where the concern was left solely to a particular state.

    What about the examples under deviations in constitutional workings? what else could be included?

    And thanks for the initiative. Hope it sustains.
    Dum Spiro Spero
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  • And, how is any appellate justice to be adjudged as performing a corrupt act under the recent NJAC judgment, which suggests Third Schedule (oath of office) obligation not to recuse

    what happened here? what is meant by that?

    FULL ARTICLE here : http://indianexpress.com/article/opinion/columns/judiciary-corruption-law-of-contempt-4556016/
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  • @canune , i will get back soon on this thread. Came home for a few days. Give me little time to respond.
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  • edited March 9
    Q. What procedure would you suggest to the Government of India where under an Agreement with the Government of India and a neighbouring foreign country, a small portion of Indian territory comprised in State Y has to be ceded to the above foreign neighbouring country? (2007)

    Answer : Will it be A.253? Which allows parliament to make laws on subject matters in state list for giving effect to international agreements?

    But what is the procedure for it? To me, it seems to be i) enter into international agreement. ii) introduce a bill in either House and make law u/a.253.

    But the question is a 20 marks question and I fail to see how just two steps may be fit into a 20 marks requirement.

    Or is there an alternative way as well? For e.g., 1st Government reduces the area of a state through Article 3 and makes that area a Union Territory and then enter into an agreement with a foreign country for ceding the union territory.

    ^Is this method legally possible?
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  • Q. Differentiate between ‘federal constitution’ and ‘federal government’. Based on judicial pronouncements and your perception of the working of our constitution, comment on whether India has a federal government or a federal constitution.

    ^what is the requirement of this question? I find the sentence framing of the second part of the question, to be strange and therefore fail to understand the demands of the question.

    Would like someone to add to the following :

    Federal Constitution means : Yes, because constitution provides for separate spheres of powers for centre and state.
    - separate legislative lists.
    - separate executive spheres.


    Federal Government means : separate government for centre and state.

    But the federal government arises primarily because of the workings of a federal constitution, then what really is the difference between the federal government and a federal constitution, as the second part purports to ask?

    Can anyone help how to answer the second part of the question?


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  • @canune : in the NJAC judgement the court said that by taking oath of a judge, there is a responsibility of judges not to recuse from benches.
    Author is saying that in light of this judgement- if judges recuse, are they indulging in corruption? (just a way of saying, not really important)
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  • canune said:

    Q. What procedure would you suggest to the Government of India where under an Agreement with the Government of India and a neighbouring foreign country, a small portion of Indian territory comprised in State Y has to be ceded to the above foreign neighbouring country? (2007)

    Answer : Will it be A.253? Which allows parliament to make laws on subject matters in state list for giving effect to international agreements?

    But what is the procedure for it? To me, it seems to be i) enter into international agreement. ii) introduce a bill in either House and make law u/a.253.

    But the question is a 20 marks question and I fail to see how just two steps may be fit into a 20 marks requirement.

    Or is there an alternative way as well? For e.g., 1st Government reduces the area of a state through Article 3 and makes that area a Union Territory and then enter into an agreement with a foreign country for ceding the union territory.

    ^Is this method legally possible?

    I dont think that any area of state needs to be reduced.

    Going back to re berubari- ceding and acquiring territory is a sovereign power under international law.
    India is a sovereign u international law. Thus India can cede here territory under any international agreement. Now as far as the procedure is concerned- it will be through a constitutional amendment under art 368 and not under the procedure prescribed u/a 3.

    A 3 is for alterations of territory interse and not for extra territorial transfers.

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  • can you answer the other question regarding federal constitution and federal government?
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  • canune said:

    can you answer the other question regarding federal constitution and federal government?

    Not too sure about the federal government part.

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  • edited March 15
    Does the citizenship amendment bill violate Article 14 of the Constitution? https://swarajyamag.com/politics/the-citizenship-amendment-bill-is-logical-heres-why

    Article 14
    The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

    In my view, there are two situations, viz.,

    A. Illegal migrants living within the territory of India
    -------------------------------------------------------------------
    The government has to deport all of them as per existing laws, but after the promulgation of the Act, the government will deport only muslims and not other religious minorities in neighbouring countries. This can be corrected through a procedure whereby applications from illegal migrants within the territory of India will not be accepted.

    This will violate Article 14, in the absence of the procedure.

    B. Persons are not within the territory of India and are living in the territory of their countries, but are being persecuted in their countries
    -----------------------------------------------------------------------------------------------------------------
    Here, the government can naturalize persons who live in India, but who applied while they live in their own countries. As Article 14 applies to persons within the territory of India, any discrimination by the government for persons living outside the territory of India will not hold good.

    Do comment if the above thinking is valid and others are invited to post comments.
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  • canune said:

    Does the citizenship amendment bill violate Article 14 of the Constitution? https://swarajyamag.com/politics/the-citizenship-amendment-bill-is-logical-heres-why

    Article 14
    The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

    In my view, there are two situations, viz.,

    A. Illegal migrants living within the territory of India
    -------------------------------------------------------------------
    The government has to deport all of them as per existing laws, but after the promulgation of the Act, the government will deport only muslims and not other religious minorities in neighbouring countries. This can be corrected through a procedure whereby applications from illegal migrants within the territory of India will not be accepted.

    This will violate Article 14, in the absence of the procedure.

    B. Persons are not within the territory of India and are living in the territory of their countries, but are being persecuted in their countries
    -----------------------------------------------------------------------------------------------------------------
    Here, the government can naturalize persons who live in India, but who applied while they live in their own countries. As Article 14 applies to persons within the territory of India, any discrimination by the government for persons living outside the territory of India will not hold good.

    Do comment if the above thinking is valid and others are invited to post comments.

    any discrimination by the government for persons living outside the territory of India will HOLD GOOD.
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  • canune said:

    canune said:

    Does the citizenship amendment bill violate Article 14 of the Constitution? https://swarajyamag.com/politics/the-citizenship-amendment-bill-is-logical-heres-why

    Article 14
    The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

    In my view, there are two situations, viz.,

    A. Illegal migrants living within the territory of India
    -------------------------------------------------------------------
    The government has to deport all of them as per existing laws, but after the promulgation of the Act, the government will deport only muslims and not other religious minorities in neighbouring countries. This can be corrected through a procedure whereby applications from illegal migrants within the territory of India will not be accepted.

    This will violate Article 14, in the absence of the procedure.

    B. Persons are not within the territory of India and are living in the territory of their countries, but are being persecuted in their countries
    -----------------------------------------------------------------------------------------------------------------
    Here, the government can naturalize persons who live in India, but who applied while they live in their own countries. As Article 14 applies to persons within the territory of India, any discrimination by the government for persons living outside the territory of India will not hold good.

    Do comment if the above thinking is valid and others are invited to post comments.

    any discrimination by the government for persons living outside the territory of India will HOLD GOOD.
    I read this swarajya article and I feel that writer has missed an important point- if we are taking examples of persecuted minorities- then Rohingya muslims are being persecuted in Myanmar. I for one dont think it would be a great idea to let them in as refugees.

    Plus- article 14 extends to all persons, not just citizens. So literal reading of art 14 makes it seem that government can not make a law based on Religion. But let me read more and get back.
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  • oldrusty said:

    canune said:

    canune said:

    Does the citizenship amendment bill violate Article 14 of the Constitution? https://swarajyamag.com/politics/the-citizenship-amendment-bill-is-logical-heres-why

    Article 14
    The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

    In my view, there are two situations, viz.,

    A. Illegal migrants living within the territory of India
    -------------------------------------------------------------------
    The government has to deport all of them as per existing laws, but after the promulgation of the Act, the government will deport only muslims and not other religious minorities in neighbouring countries. This can be corrected through a procedure whereby applications from illegal migrants within the territory of India will not be accepted.

    This will violate Article 14, in the absence of the procedure.

    B. Persons are not within the territory of India and are living in the territory of their countries, but are being persecuted in their countries
    -----------------------------------------------------------------------------------------------------------------
    Here, the government can naturalize persons who live in India, but who applied while they live in their own countries. As Article 14 applies to persons within the territory of India, any discrimination by the government for persons living outside the territory of India will not hold good.

    Do comment if the above thinking is valid and others are invited to post comments.

    any discrimination by the government for persons living outside the territory of India will HOLD GOOD.
    I read this swarajya article and I feel that writer has missed an important point- if we are taking examples of persecuted minorities- then Rohingya muslims are being persecuted in Myanmar. I for one dont think it would be a great idea to let them in as refugees.

    Plus- article 14 extends to all persons, not just citizens. So literal reading of art 14 makes it seem that government can not make a law based on Religion. But let me read more and get back.
    The law's ambit covers only Afghanistan, Pakistan and Bangladesh. Also Article 14 applies to persons within the territory of India. I think that implies India can discriminate between persons living outside the territory of India.
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  • Q. The entries in the legislative lists are not the source of powers for the legislative constitutions, but they merely demarcate the fields of legislation. It is now well settled that these entries are to be construed liberally and widely so as to attain the purpose for which they have been enacted. Narrow interpretation of the entries is likely to defeat their object as it is not always possible to write these entries with such precision that they cover all possible topics and without any overlapping. Critically evaluate the above statement with reference to interpretation of legislative entries contained in Seventh Schedule to the Constitution (2012)

    ^ for this question, will you discuss these principles of interpretation, viz., i) plenary powers, ii) retrospectivity, iii) pith and substance, and iv) ancillary legislation.

    or will you discuss only 'pith and substance' along with a touch of 'colourable legislation'.

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  • ^ Id write plenary power, territorial nexus, pith and substance, colourable and also repugnancy. All relate to competence of legslative bodies. Retrospectivity can add , less emphasis. What is ancillary legislation?? (rules?).

    One thing I want to ask, do we mention colourable only wrt competence or it can be mentioned wrt constitutionality and rule of law. Eg if I want to criticize ordnance misuse- should i call it colourable legislation? (technically colourable is for competence)
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  • oldrusty said:

    ^ Id write plenary power, territorial nexus, pith and substance, colourable and also repugnancy. All relate to competence of legslative bodies. Retrospectivity can add , less emphasis. What is ancillary legislation?? (rules?).

    One thing I want to ask, do we mention colourable only wrt competence or it can be mentioned wrt constitutionality and rule of law. Eg if I want to criticize ordnance misuse- should i call it colourable legislation? (technically colourable is for competence)

    Hey, why I asked that question is because even though the passage gives one an understanding that it relates to competence. However, the passage is specifically from a case on doctrine of pith and substance. http://www.desikanoon.co.in/2014/05/constitutional-law-doctrine-of-pith-and-substance.html. As the question is asking us to 'critically evaluate', perhaps then the other part should talk of 'colourable legislation' (as a type of limitation), which prohibits legislation that one can't make directly. Pith and substance allows state legislatures to make laws that can overlap with subjects in other two lists, as long as such overlapping is incidental. Colourable legislation principle says that you can't make a law using pith and substance argument if the nature of law itself is such that it is made on a subject not within competence.

    Now, in that case, would it make sense to write about all the principles of interpretation or just pith and substance?

    Also, the question is not related to 'competence' generally (imo), as it's more about 'subject overlap' in which case it makes sense to talk only of pith and substance and colourable legislation and also repugnancy per Vijay Kumar Sharma v. Karnataka 1990 which propounded that pith and substance won't save a state legislature. in case of repugnancy per A. 254(1).
    ·
  • oldrusty said:

    ^ Id write plenary power, territorial nexus, pith and substance, colourable and also repugnancy. All relate to competence of legslative bodies. Retrospectivity can add , less emphasis. What is ancillary legislation?? (rules?).

    One thing I want to ask, do we mention colourable only wrt competence or it can be mentioned wrt constitutionality and rule of law. Eg if I want to criticize ordnance misuse- should i call it colourable legislation? (technically colourable is for competence)

    in my view rule of law rather relates to non-arbitrariness & just, fair and reasonable process of law. And the scope of answer for a question to rule of law should be limited to A.21, A.22 cases such as ADM Jabalpur, Menaka sorts.

    colourable legislation will not come under rule of law, imo
    ordinance misuse is not specifically colourable legislation
    ·
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