GENDER, JUSTICE, AND JAIL: THE CASE FOR WOMEN’S LEGAL ADVOCACY
Written by Aboo Bakr student at Jamia Millia Islamia From the beginning of human civilisation to the modern era of unprecedented advancement, history bears witness to a grave truth: if there is one being whose dignity has been most violated, whose existence has been most trampled upon, and whose honour has been most ruthlessly exploited, it is none other than the woman. In this 21st century, where everyone talks about human rights, equality, and justice, women are still wrestling with entrenched discrimination and hardship on many fronts. Their rights are often shrugged aside, even with various laws and policies on the principle of justice across the globe, especially in regions where they should be the safest—the prison system, which was primarily designed for the incarceration of men. Women who already suffer from social chauvinism also face discrimination in prison, which is largely occupied by male staff and promotes an atmosphere for female inmates that fail to meet and address their physical, emotional, and social requirements. The gender-specific needs of prisoner women are often overlooked, primarily due to their numerical minority within the prison population. However, statistics also show a slow increase in women in prison and highlight a need to address the current panel framework. This blog examines the challenges faced by women prisoners, the lacunae in their legal protection, and the necessary reforms to address these issues. The Situation Of Women’s Prisons In India: Women incarcerated in Indian prisons are systematically deprived of their fundamental rights and basic amenities, including access to libraries, factory areas, open spaces, and recreational facilities that men can easily access, just because they are part of the male section of the prison. Although the total population of female prisoners remains a small percentage of the overall prison population, increased by 11.7% from 2014 to 2019, women made up 4.2% of the prison population. The report also highlights that 76% of all prisoners are undertrials, worsening the issue of prolonged incarceration without conviction that amounts to a clear violation of the right to speedy trial, as held in Hussainara Khatoon v. State of Bihar (1980). Notably, only 18% of female prisoners get exclusive women’s prison facilities, as only 15 states and UTs have functional women’s prisons. The rest of the population lives in enclosures inside the prison facility. There is a lack of separate medical and psychiatric wards for female inmates. Distressingly, less than 40% of prisons provide sanitary napkins to female inmates, violating Article 21 of the Constitution. Women who are accompanied by their children are also deprived of nutritious food and proper education. Only prisons in Goa, Delhi, and Puducherry permit female prisoners to meet their children without being separated by bars or glass. It is concerning to note that 75% of prison wards for women must share common living spaces and kitchens with male offenders, increasing the risk to security. Judicial Pronouncement & Committee Reports On Women Prisoners’ Rights: The Prisons Act of 1894 or the corresponding State Prison Manuals govern the management and administration of prisons, which are solely the responsibility of state governments. The States bear the parens patriae responsibility to ensure the protection of prisoners’ rights and to amend the prison regulations to align with evolving human rights standards. The State’s duty extends to preventing and penalising violence against women, whether perpetrated by public officials or private actors, as part of its obligation to uphold the principles of natural justice and due process of law. The Indian judiciary has time and again ruled about appalling women’s conditions in prisons. The Same thing happened in the case of Shatrughan Chauhan v. Union of India (2014), wherein the Supreme Court of India dealt with the inhumane treatment of prisoners and emphasised their constitutional right of prisoners under Article 21. In Sheela Barse v. Secretary, Aid Society (1987) too, the Court laid down guidelines for safeguarding the fundamental rights of women prisoners. In its landmark judgement in D.K. Basu v. State of West Bengal (1997), the Supreme Court of India unequivocally held that any kind of torture, cruel, inhuman or degrading treatment is included in the concept of personal liberty as per Article 21 of the Constitution and thus a constitutional prohibition against custodial violence. The Model Prison Manual, draughted by the Bureau of Police Research and Development (BPRD), also underscores the need for gender-sensitive prison management. The Prison Act of 1894 contains provisions that apply to all convicts regardless of their sex because it makes no mention of female inmates in India. The Need For Gender – Specific Legal Rights: Recognising the plight condition of women in prison, states must adopt a proactive and reformative approach to ensure gender-sensitive prison policies. The measures outlined below, though not exhaustive, are sine qua non for upholding the fundamental rights of women prisoners. The Way Foreward: Across the world, including India, voices are raised against egregious and preposterous violations of human rights, particularly concerning women and children. Yet, there remains one marginalised group that is perpetually overlooked—those confined within the grim walls of prisons, about them our traditional and typical minds think only one thing: that they are not human beings, they do not have access to their basic amenities, they should be deprived of every facility, and they do not even deserve any basic rights. However, the law and justice system is not just for free citizens but for everyone who breathes, who feels, and who is alive. A society that turns a blind eye to the injustices within its prison system compromises the very essence of justice itself. Moreover, the Prisons Act, 1894, is outdated and needs repair. It contains no provision regarding the welfare and the betterment of the women prisoners. Recognising the urgent need for prison reforms, the Supreme Court in 2018 constituted a committee led by Justice Amitava Roy to examine prison conditions. However, the mere establishment of committees is not a panacea—similar efforts, such as those led by Justice A.N. Mulla and Justice V.R. Krishna Iyer in the 1980s, failed to translate into tangible
ECI’s Roll Revision: A Legal Overreach
Written by Kritagya Sinha & Gaurav Kumar Mandal senior member at KS- NUSRL & Student Convenor at KS-NUSRL. The Election Commission of India (ECI) has invoked Article 324 of the Constitution and Section 21 of the Representation of People Act to undertake a “Special Intensive Revision” (SIR) of Bihar’s rolls ahead of the October 2025 polls. Citing a 22-year gap since the last intensive revision (2003), the ECI claims the exercise will “scrupulously” include all eligible citizens and remove ineligible ones under Article 326 (adult suffrage). In practice, however, the SIR imposes stringent documentary tests. Voters already on the 2003 roll (about 63%) need only submit a simple form, but the remaining 37%, roughly 2.9 crore people, must provide detailed proof of their date and place of birth (and even their parents’ birth details, depending on age). The ECI’s own “indicative” list of 11 acceptable documents includes only formal Indian-issued papers (birth certificate, old government ID, passport, etc.), and notably excludes ubiquitous IDs like Aadhaar, voter ID (EPIC) or ration cards. EC notices even warn that “Aadhaar is proof of identity, not of citizenship”. This means many ordinary voters scramble for rarely-issued certificates. Field reports from Bihar’s villages are stark, labourers and migrants clutch their Aadhaar and ration cards only to learn “none of the three documents” count as proof of citizenship. Block-level officers report that most constituents are on the 2003 list and sail through, but the few who are not often landless, poor or from marginalized communities,“don’t have any of the acceptable documents”, and are being hurried to obtain caste or residence certificates on short notice. Demanding decades-old certificates from millions of voters is a “draconian” shift that risks taking away the only right crores of people have, the right to vote. Indeed, a Public Interest Litigation filed by the Association for Democratic Reforms (ADR) argues that nearly 3 crore Bihar voters (close to half the electorate) lack the mandated papers and could be purged from the rolls. With historically low birth-registration in Bihar and many rural poor never issued formal IDs, the “onus” of proving citizenship has effectively shifted onto voters who may simply have no documents. The revision disproportionately endangers the poor, migrants and minorities. Farmers, daily-wage labourers and migrant workers (a large share of Bihar’s population) may lack fixed addresses or birth certificate. Seasonal migrants working outside Bihar are particularly vulnerable, as they must rely on online forms or proxies while monsoon rains and short deadlines loom. This downright anti-poor move”, even that excluded voters could lose not only their franchise but also eligibility for government benefits tied to voter registration. Smaller communities -Dalits, Muslims and other minorities. The SIR breaches core constitutional guarantees. The ADR petition contends that subjecting voters (and even their parents) to such arbitrary proof requirements violates Article 326 (universal adult franchise) and Article 325 (no discrimination in electoral rolls by religion, race, caste or gender). It also impugns Articles 14, 19 and 21 (equality, liberty and life) by shifting the burden of proof from the state to individuals and by denying due process. elections are meant to be inclusive, Article 326 entitles every person over 18 to vote, and that disqualifications must follow clear law, not sudden, overreaching directives. The petitions warn that forced exclusions on flimsy grounds can “arbitrarily…disenfranchise lakhs” of citizens. and undermine India’s commitment to universal suffrage. Indeed, the Supreme Court itself expressed concern on July 10 that real voters could lose their franchise if they cannot meet these new criteria or complete appeals in time. In my view, the ECI’s process has been marked by a troubling lack of transparency and undue haste. The entire SIR spans barely three months: Block-level enumeration must finish by July 25, objections sorted by August, and a final roll published on September 30, all in a heavy monsoon period. such a task normally requires much more lead time, public consultation and clarity of purpose. The ADR notes that no satisfactory reason was given for “drastic” mass revision just before elections indeed, a special summary update had just been held in late 2024.Unlike past exercises (such as in 2003), there was no advance debate with political parties or civil society, the June 24 notification seemingly came with zero warning, sowing confusion on the ground. the ECI was designed to be an independent bulwark against executive overreach, moves that appear politically motivated risk turning election administration into a tool of those in power. At stake is nothing less than the integrity of India’s democratic franchise. The commission’s duty is to expand inclusion, not to erect new hurdles for the disadvantaged. The courts and voters alike will be watching closely to ensure that no citizen loses the fundamental right to vote through this unprecedented revision.
From Rumour to retribution: A Legacy of superstition; Bihar’s Battle Against Witch Hunting
Written By Adv. Amarjeet[i], Yogesh Anand[ii] & Subham Babu[iii] The recent outcry in Purnia, Bihar, wherein five members of a family were brutally murdered on suspicion of witchcraft, has again put the age-old practice of witch-hunting in the limelight. The evil practice, while old, is still claiming innocent lives, especially in Bihar and Jharkhand. One of the strongest sociological explanations for the prevalence of such practices is that there exists an overall low level of education and awareness in society. Individuals are still unaware and do not understand that accusing another of being a “witch” (Daain) is not only baseless but also against the law in India. Over 2,500 women have been killed in India on the charges of witchcraft since 2000, according to the National Crime Records Bureau. To counter this evil, Bihar achieved the distinction of being the first Indian state to pass a special legislation, the Prevention of Witch (Daain) Practices Act, 1999[iv]. The Act aimed at curbing and ultimately ending torture, humiliation, and murder of women on accusations of witchcraft, which is an extremely common form of oppression in tribal regions and rural enclaves of the state. The Act gives significant definitions to define pivotal words. A “witch” or a “Daain” is a woman who is accused, by a person, of having supernatural evil powers in the form of black magic, evil eyes, or harmful mantras which might cause harm to people or the general public as well[v]. The “identifier” is the person who first identifies a woman as a witch[vi]. The Act also prescribes individuals such as “Ojha,” “Guni,” or “Shekha”, native healers or spiritualists, who assert the faculty of identifying or “curing” witches[vii]. The Act consists of eight sections, of which Sections 3 to 6 elaborate on the main offences and the corresponding punishments. Section 3 criminalises any individual who identifies another as a witch. Whether the identification is by words, behaviour, or action, the offender is punishable by imprisonment for a term which may be up to three months, or by a fine of ₹1,000, or by both[viii]. Section 4 penalises further those who, on such identification, go on to physically or mentally torture the identified witch. This is also punishable with six months’ imprisonment or a fine of ₹2,000 or both[ix]. Section 5 prohibits the offence of abetment. It states that whoever abets another, encourages or induces any other person to call a woman a witch intentionally or unintentionally becomes liable to be punished with imprisonment for a term not exceeding three months, a fine of ₹1,000, or both[x]. Section 6 makes “witch curing,” that is, acts done by persons such as Ojhas or Gunis of conducting risky rituals or physically or mentally torturing the accused witch in the guise of exorcism or purging, a criminal offense. The offense can bring a maximum punishment of one year’s imprisonment, or a ₹2,000 fine, or both[xi]. Section 7 of the Act criminalises all such offences identification, torture, abetment, and witch-curing as cognizable and non-bailable offences. This implies that the police may arrest the accused on their own volition and bail can’t be claimed as a matter of right[xii]. In spite of the strong judicial system, the persistence of the witch-hunting cases in Bihar indicates some essential questions regarding the degree of transparency among the citizens as well as the efficiency of law and order machinery. There has been a catena of cases that have come before the Patna High Court in the year 2025 relating to witch hunting. In Munni Devi Vs. The State of Bihar[xiii], dated 17-06-2025, the appellant, Munni Devi had filed an appeal against an order of acquittal dated 09.09.2024 under Section 372 of the Code of Criminal Procedure, 1973 whereby the respondents-accused had been acquitted by the Trial Court. The FIR No. Gurua P.S. Case No.178/2020 was lodged under Sections 341/323/302/504/34 of the Indian Penal Code, and also under Sections 3/4 of the Prevention of Witch Practices Act. The informant’s charge was that on 3rd August 2020, Pratima Kumari tortured her daughter, Nirmala Kumari, informing her that Nirmala’s mother (the informant, Munni Devi) was a ‘dain’ (witch) and that she was preventing the marriage of Pratima Kumari. This turned into a physical attack on Pratima Kumari by Arjun Choudhary, Akhilesh Choudhary, and Phulesh Devi, during which Munni Devi’s husband Sarjun Chaudhary received head injuries that resulted in his death two days later at Blue Diamond Hospital, Patna. But the High Court dismissed the appeal, holding that there was no defect on the part of the Trial Court in the acquittal order because the prosecution was unable to establish the case against the respondents-accused beyond a reasonable doubt. The court observed substantial delay in lodging the FIR, non-production of certificates of injury to the claimed injured eye-witnesses (PW-1 and PW-2) and examination-in-chief of PW-3 (deceased’s mother), deposing that her son had expired after drinking liquor and collapsing, unequivocally denying the accused persons to have caused his death. The High Court also looked into the double presumption of innocence on the part of the accused in acquittal appeals. The appeal was heard by Honourable Mr. Justice Vipul M. Pancholi and Honourable Mr. Justice Sunil Dutta Mishra. In Rakesh Hembram and Others v. The State of Bihar[xiv] dated 24.03.2025, also pertains to “witch hunting” being the reason for the reported assault and killing. The prosecution witnesses continued alleging that the deceased mother Jasni Murmu was suspected of being a “Dain” i.e., a witch. In particular, PW-3 (Parvati Tuddu, the victim’s daughter) deposed that the accused individuals said they had killed her mother on the assumption that she was a “witch” who murdered a child. PW-4 (Arjun Tuddu, victim’s husband) also testified about an incident before the murder where some of the accused persons had visited his house, categorically saying that his family members were “witch” and attempted to kidnap him on the pretext of “putting out the lamp”. PW-1 (Shiban Tuddu, son of the victim), though initially averring that no one told
“No Means No”: Section 149 BSA and the Evidentiary Dignity of the Prosecutrix
By Onam Sourabh & Avinash Verma, Students at the National University of Study and Research in Law, Ranchi Pink, the 2016 Bollywood courtroom drama that transcended beyond the boundary of a cinema to reflect an elementary yet intense subject: ‘No means no’. Amitabh Bachchan takes on a whole lot of conventional wisdom to declare that clothes or lifestyle or sex partners do not indicate consent. What played out on the big screen was a realisation of a legal state our courts had been articulating for long and finally one which finds legislative sanctity under Section 149, Bharatiya Sakshya Adhiniyam, 2023 (BSA). This provision prohibits cross-examination with regard to the character of the general immoral or a prior sexual experience of the victim in prosecutions for sexual offences for proving consent. The in-built anchor is constitutional (protection of the dignity, privacy and autonomy of the prosecutrix under Articles 14 and 21) but it also reinforces the integrity of the fact-finding process by ensuring that a trial remains focused on facts of the particular incident rather than be derailed via character assassination or to start passing a moral judgment. From Colonial Evidence Rules to Victim-Centric Safeguards Section 120 BSA (formerly Section 114-A of the Evidence Act), which stipulates that once sexual intercourse is proved and the prosecutrix testifies to absence of consent, the court shall presume non-consent. This statutory presumption shifts the evidentiary burden to the accused a deliberate policy choice recognising the unique evidentiary challenges in prosecuting sexual crimes, where often the only direct evidence is the testimony of the victim herself. The principle underlying Section 149 had been taking shape in judicial pronouncements. In State of Punjab v. Gurmit Singh (1996) 2 SCC 384, the Supreme Court famously declared: “Even if the prosecutrix… has been promiscuous in her sexual behaviour earlier, she has a right to refuse… because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone” (para 16). Likewise, in State (NCT of Delhi) v. Pankaj Chaudhary (2019) 11 SCC 575, the Court observed: “Even if the allegations of the accused that the prosecutrix is of immoral character are taken to be correct, the same does not give any right to the accused persons to commit rape on her against her consent” (para 27). And in State of Maharashtra v. Madhukar Narayan Mardikar (1991) 1 SCC 57, the Court went further, stating: “Even a woman of easy virtue is entitled to privacy… and is equally entitled to the protection of the law” (para 12). These pronouncements dismantle the “implied consent” myth and firmly anchor the legal standard in the prosecutrix’s autonomy, underscoring that her past cannot diminish her present rights. The Presumption of Absence of Consent Section 120 BSA reinforces this protection with a presumption that, once the prosecutrix testifies to the absence of consent and sexual intercourse is proved, the court shall presume non-consent. In Yedla Srinivasa Rao v. State of A.P. (2006) 11 SCC 615, the Court clarified: “…where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states… that she did not consent, the court shall presume that she did not consent” (para 15). Similarly, in Anurag Soni v. State of Chhattisgarh (2019) 13 SCC 1, the Court held that such a presumption leaves no scope for drawing inferences of consent from surrounding circumstances or prior intimacy unless the accused can produce compelling and credible rebuttal evidence. In Maksud Sheikh Gaffur Sheikh v. State of Maharashtra, 2025 SCC OnLine Bom 2151, the Bombay High Court reaffirmed the fundamental principle that sexual consent must be explicit, informed, and contemporaneous, and that its absence renders sexual intercourse an offence under §375 IPC. The Bench, speaking through Nitin B. Suryawanshi and M.W. Chandwani, JJ., emphasised that rape is not merely a sexual offence but an act of aggression violating the victim’s bodily integrity, mental autonomy, and privacy. The Court categorically rejected any presumption of consent based on a woman’s past sexual history, invoking §53A of the Indian Evidence Act to exclude character evidence as irrelevant to the question of consent. Significantly, it clarified that prior intimacy does not confer perpetual licence for sexual access, and that a refusal a “No” is conclusive in law. The judgment further underlined that even within prior or ongoing relationships, consent must be specific to each act and may be withdrawn at any time, thereby reinforcing the autonomy and dignity of the prosecutrix. In Rajkumar v. State of Karnataka, 2024 SCC OnLine SC 257, the Supreme Court, per Aniruddha Bose and Sanjay Kumar, JJ., reaffirmed that consent in sexual relationships is not a static or once-for-all grant, but must be present at every stage of the relationship. While acknowledging the precedent in Shambhu Kharwar v. State of Uttar Pradesh (2022 SCC OnLine SC 1032) that a genuinely consensual relationship does not attract the offence of rape, the Court clarified that the consensual nature of an initial phase does not immunise later acts from scrutiny if one partner withdraws consent. The Bench stressed that the moment one party expresses unwillingness to continue, the relationship loses its consensual character, and any sexual act thereafter would be assessed in light of §375 IPC. By distinguishing between past consent and continuing consent, the judgment reinforced the principle that sexual autonomy is ongoing, dynamic, and revocable. In RIT Foundation v. Union of India, the Delhi High Court engaged in a profound constitutional and human rights analysis of marital rape, holding that non-consensual sex within marriage is as violative of dignity, bodily integrity, and personal liberty as sexual assault outside it. The Court underscored that under Article 21 of the Constitution, the offence of rape is defined by the absence of consent, not by the identity of the perpetrator, and that the marital relationship cannot be a shield for forced sexual intercourse. Observing that modern marriage is a relationship of equals, the Court rejected
Reimagining Centre-State Relations in India: Lessons from the Sarkaria and Punchhi Commissions Amid Governor–Chief Minister Conflicts
Written by Aman Rungta & Shamya Kumari students at Chanakya National Law University, Patna India is a union of states. It has a “Union government” at the central level and different “State governments” for each of the states. The three lists under Schedule VII of the Constitution outline the division of legislative power between the “Union and the State governments.” The “Union government” has plenary authority to legislate on subject matters enumerated in the Union List. The “State governments” have exclusive powers with respect to matters enumerated under the State List in regards to their own respective states. Under the Concurrent List, both the governments have power to legislate and in times of conflict, the law made by the Union prevails over the State made laws. This exclusivity is protected under Art. 246 of the Constitution. When we talk about legislative bodies of the State, it comprises of the “Vidhan Sabha”, the “Vidhan Parishad”, if any and the respective “Governor of the State”. Each of the bill passed by the legislature has to be necessarily accorded assent by the Governor. Under Art. 200, the Governors are authorised to either assent to the bills or send them back for reconsideration by the Assembly or reserve it for consideration by the Hon’ble President. Further, the Governor may exercise executive powers only under the advice of the State’s “Council of Ministers”. Therefore, in conclusion, the Governor must give assent to the bills once the “State government” has passed or reconsidered the bill, except in cases it has to be reserved for presidential assent under the applicable laws. In recent times however, the relationship between the “Union and the State governments” has witnessed increasing strain. The role of the Governors, a figure appointed by the “Union government” to oversee the administration of each state has emerged as a particularly contentious aspect of this intergovernmental dynamics. “State governments”, especially those governed by parties in opposition to the parties ruling in the “Union government”, have increasingly voiced concerns over the perceived misuse of the Governor’s office to advance the Union government’s political agenda. This article aims to provide a comprehensive analysis of India’s federal structure and the multifaceted causes of the escalating friction between the “Union and State governments” and along with a discussion of perspectives and recommendations for fostering a more harmonious union-state relations in the Indian federation. Sarkaria Commission’s Recommendations on Cooperative Federalism The Commission, chaired by Retd. Justice R.S. Sarkaria of the “Supreme Court of India”, was established by the “Government of India” in 1983 to review the existing relationship between the “Union and the States” and suggest appropriate reforms in the evolving socio-economic landscape. The Commission submitted its report to Rajiv Gandhi, the then “Prime Minister of India” in October 1987 with 247 different recommendations, divided into 19 chapters, aimed at maintaining national integrity and unity by identifying reformable governance asymmetries in centre-state relations. The Commission, in its report noted the criticisms expressed by various “State governments” over the unfettered power conferred by Art. 200 and 201 of the Constitution, arguing that the reference of a State’s bill for matters covered under the State List for the President’s consideration encroaches upon the powers of the State legislatures and unconstitutionally subordinates it to the Union Executive. According to the Commission, the Governors may reserve a bill for the President’s consideration only when the bill is tainted with “patent unconstitutionality.” In all other cases, he has to abide by the advice of the Council of Ministers. The discretion of Governor is limited to rare and exceptional circumstances where he is “compelled by the dictates of good conscience and duty to uphold the Constitution.” Prior to the “Sarkaria Commission”, the government of Tamil Nadu had set up the “Rajamannar Commission” to analyse the “Centre-State relations” in a federal setup. It also opined that the Governors’ discretionary powers are “only in relation to the matters in respect of which there are express provisions” and they have to act in “accordance with the advice of the cabinet in all matters.” Further, to maintain the constitutional sanctity of the “Governor’s office”, the “Sarkaria Commission” recommended that politically detached and eminent persons from outside the state should be selected as Governors by the “Vice-President of India” and the “Speaker of the Lok Sabha” in consultation with the Prime Minister. Thus, the Sarkaria Commission has recommended that the Governors should rise above politics in exercise of their official powers and act as the constitutional head of the States. They should aid and assist the functioning of the “State governments” and oversee that their activities conform to the spirit of the Constitution and in the public interest. Punchhi Commission report on Refroming the Federal Relations The Commission was constituted on 27th April 2007 by the “Government of India” to review the contemporary issues of “Centre-State relations” in India. It consisted of “Mr. Dhirendra Singh, Mr. Vinod Kumar Duggal, Dr. N.R. Madhava Menon and Mr. Vijay Shanker” as members. It was chaired by Retd. Justice Madan Mohan Punchhi, former “Chief Justice of India.” The report was presented in seven volumes to the Government on 30th March 2010 with 273 recommendations. Before the “Punchhi Commission”, the “National Commission to Review the Working of the Constitution” (NCRWC), chaired by “Justice M.N. Venkatachalaiah” recommended a four months’ time for Governors to decide on giving assent to bills or reserving it for the presidential consideration, and proposed restricting their discretionary powers unless constitutionally mandated. With these recommendations, the NCRWC aimed to do away with the practise of ‘killing’ of “State government’s” bills by the “Union government.” The “Punchhi Commission” recommended that these reforms should be implemented immediately by bringing in Constitutional Amendments. The Commission further recommended that the impression that Governors had discretionary powers under Art. 163(2) “needs to be dispelled.” The Article does not envisage unfettered discretion to the Governor to act contrary to or independent of the advice of the “Council of Ministers.” The exercise of such power must be guided by reason,
Reimagining Welfare Delivery: Leveraging Digital Public Infrastructure for Inclusive Governance in India
Written by Akshat Jain student at Christ (Deemed to be University), Bengaluru. Modern public policy reveals technology governance convergence as its dominant characteristic during the twenty-first century. India leads this transformation through its goal to establish Digital Public Infrastructure (DPI), which serves as a model for the rest of the world. DPI serves as a program that has the potential to transform welfare delivery through its modernized public service accessibility approach. The inclusive application of DPI demands solutions to obstacles involving digital access, rights, and governance practices. What is Digital Public Infrastructure? These components are modular, open-source, and accessible to both the public and private sectors, making DPI a “public good”, with the condition that these must be managed responsibly. DPI and Welfare Delivery: A Game Changer The integration of DPI into welfare schemes has revolutionized how government benefits are distributed. The Aadhaar-powered Direct Benefit Transfer (DBT) mechanism eliminated delays and secured benefits such as LPG subsidies and rural employment wages from reaching beneficiaries without wastage. As of 2024, DBT has delivered ₹3.48 lakh crore worth of savings by stopping duplication as well as ghost beneficiaries, and corruption. Financial inclusion shows extraordinary expansion at present. The combination of Jan Dhan-Aadhaar-Mobile (JAM) with UPI provides millions of people with their first chance to use formal financial services. The Economic Times reports how UPI handled 11 billion transactions on its own during a single month in 2024, while also showing growth in rural and semi-urban communities. The system promotes both convenience and empowerment for women, along with marginalized groups of people. Moreover, platforms like DigiLocker allow citizens to access government documents (such as PAN cards, driving licenses, and educational certificates) in a secure and verifiable manner. This reduces bureaucratic friction and enhances access to education, employment, and mobility. Constitutional Backing and the Right to Digital Access The Indian Constitution, while silent on technology per se, offers a powerful basis for digital equity through its guarantees of equality (Article 14) and life and personal liberty (Article 21). The Supreme Court of India, in a recent judgment, recognized that digital access is intrinsic to Article 21. In the context of Aadhaar-based exclusion and KYC verification issues faced by disabled persons, the Court directed the government to ensure that all digital systems are accessible, inclusive, and non-discriminatory. Furthermore, the landmark K. S. Puttaswamy v. Union of India judgment affirmed the right to privacy as a fundamental right. This ruling reshaped the debate around Aadhaar and DPI, pushing the government to adopt stricter data protection measures, though gaps still remain in practice. Challenges to Inclusivity and Access Despite its transformative promise, DPI implementation is fraught with issues that, if unaddressed, risk reinforcing existing inequalities: 1. The Digital Divide India’s digital access remains uneven. The growth of smartphones and internet penetration occurs, yet rural areas maintain substantial deficiencies. Namely, the Internet and Mobile Association of India (IAMAI) found in 2023 that 38% of rural Indians used the internet while 67% of urban Indians maintained regular internet access. Genital and age differences, coupled with illiteracy problems, combine to prevent millions of people from using digital services unassisted. 2. Exclusion by Design The 2024 report from Amnesty International demonstrates that entities operating PDS and MNREGA schemes have wrongly excluded eligible beneficiaries through automated resolution systems with both biological inconsistencies and technical issues, and inflexible automation protocols. The accountability of algorithms in public welfare delivery faces serious doubts because of their implementation. 3. Privacy and Data Protection The Digital Personal Data Protection Act 2023 exists to reduce existing privacy risks regarding personal data. Numerous critics point out that the Digital Personal Data Protection Act contains wide governmental exceptions while lacking enough independent oversight functions. The Aadhaar database remains under scrutiny because its database faced security breaches along with problems in obtaining proper consent from users. 4. Public-Private Blurring The implementation of digital governance relies on private tech companies to build, operate, or manage sections of the DPI. DPI technical efficiency increases through digital governance, yet this enhancement creates problems because public infrastructure becomes private and oversight becomes restricted. Experts at The Wire argue that DPIs must prioritize citizen interests over corporate profits, especially when data and service access are involved. The Way Forward: Inclusive, Rights-Based DPI To ensure DPI serves the public good, especially the marginalized, India must adopt a human rights-centric approach to digital governance. 1. Bridge the Digital Divide 2. Enforce Data Privacy and Consent 3. Inclusive Design and Accessibility 4. Legal Accountability and Auditing 5. Federal Coordination Since many welfare schemes are co-administered by central and state governments, DPI must enable seamless interoperability while respecting local autonomy. The One Nation One Ration Card scheme is a good example, allowing interstate migrants to access food rations regardless of location, provided the system functions effectively. 6. Establishment of DPI Research Centre The Indian government intends to build a research and development hub known as the Centre of Excellence for Digital Public Infrastructure and Digital Public Goods. The center will support innovation through academic involvement and research body participation to create digital solutions which scale effectively and work with interconnectivity. The center will conduct DPI implementation operations within G20 nations together with Global South countries to spread India’s digital roadmaps worldwide. 7. UPI 3.0: Advancement in Digital Payments The latest 3.0 version of UPI now enables users to make payments through Conversational Voice Payments. The upgrade offers a voice command interface that allows users to proceed with transactions, making the system more accessible for people with low literacy or speakers of regional dialects. The AI-based voice recognition system incorporated into UPI 3.0 strives to establish digital payments that are friendly for all users. Global Recognition and Collaboration The Digital Public Infrastructure of India is attracting global attention across international circles. Through its partnership with the National Payments Corporation of India (NPCI) various countries within Africa combined with South America are adopting digital payment systems based on Unified Payments Interface (UPI). Peru and Namibia signed agreements with the Indian National
Digging Responsibly: The Legal Side of Sustainable Mining
Written by Keshav Agarwal student at Gujarat National Law University, Gandhinagar Introduction: Can mining fuel progress without wounding the planet? In India, mining powers essentials such as the electricity, steel, smartphones, roads. India, with 95 minerals, is a global mining leader, exporting resources like iron ore, bauxite, chromite, and copper. But behind this industrial might there lies a stark reality: vanishing forests, polluted rivers, displaced communities, and a deepening gender divide. As one of the top five mineral producers by volume, India stands at a crossway. Sure, mining drives GDP and growth—but at what cost? This blog dives into the legal frameworks, sustainability efforts, corporate responsibilities, and social-environmental challenges shaping India’s mining future. The question now isn’t about how much can be mined, but about how responsibly it’s done. Legal and Policy Framework: Building the Foundation for Sustainable Mining The mining industry employs about one million workers, or 4% of India’s workforce. It is governed by numerous central and state laws, mainly the Mines and Minerals (Development and Regulation) Act, 1957 (MMRD), and the Mines Act, 1952. The MMRD regulates the sector under a unified national framework, while the Mines Act focuses on health, safety, and operational standards. While the MMRD Act (1957) provides a unified legal framework, the Mines Act (1952) sets health and safety standards.” Several key environmental laws also play a significant role in regulating mining activities. For instance, the Environment Protection Act of 1986 aims to prevent and control pollution while ensuring the maintenance and restoration of environmental quality, including water resources affected by mining operations. Similarly, the Forest Conservation Act of 1980 restricts the diversion of forest land for non-forest purposes, thereby placing limits on mining in ecologically sensitive areas. But, the Supreme Court in T.N. Godavarman Thirumulpad v. Union of India (1997) emphasized the urgent need for implementation over mere statutory existence. Furthermore, “The National Mineral Policy, 2019” which aims to ensure that minerals, as vital natural resources, are explored, extracted, and managed in alignment with national economic goals. It outlines that it’s the state’s role as a trustee of mineral wealth for advocating for fair and transparent allocation, environmental sustainability, stakeholder participation, and equitable benefit-sharing with affected communities. India has no shortage of sustainability-related laws and regulations. However, their effectiveness is frequently undermined by weak implementation and enforcement mechanisms. Regulatory agencies often lack the resources or autonomy needed to monitor compliance consistently, and penalties for violations are either minimal or poorly enforced. As a result, many companies full-fill only the formal requirements—filing reports or obtaining clearances—without making meaningful changes to reduce their environmental and social impact. Laws achieve lasting impact only when compliance goes beyond box-ticking and becomes a matter of internalized values and proactive practice. Corporate Social Responsibility in Mining: Doing Good or Doing the Minimum? Corporate Social Responsibility (CSR) in India’s mining sector is a legal obligation, but whether it translates into real, lasting impact is a different question altogether. Under Section 135 of the Companies Act, 2013 and the Companies (Corporate Social Responsibility Policy) Rules, 2014, companies above a certain threshold are mandated to spend at least 2% of their average net profits over the previous three years on CSR activities. Mining PSUs like Coal India Ltd. (CIL) have set geographical parameters for this spending, such as allocating 80% of their CSR funds within 25 km of project sites and the remaining 20% within the states they operate in. However, studies reveal that in practice, CSR often takes the form of short-lived, surface-level interventions such as installing water tanks, distributing school kits, building clinics , projects that look good on paper but offer little lasting value once a mine shut down. Most mining companies do not integrate CSR into the overall mine lifecycle, resulting in community support that fades when operations cease. This disjoint becomes especially harmful for vulnerable populations—indigenous groups, women, and informal workers, who are often left with polluted lands and few economic alternatives. True CSR should be rooted in system-building: vocational training, micro-enterprise support, mobile health care, and education that lasts beyond mining activity. For instance, initiatives like those at Tata Steel’s Noamundi mine, where CSR aligns with mine closure and environmental restoration goals, show what’s possible when community development is embedded into core business planning. What ultimately matters is that the CSR must shift from being a compliance checkbox to a strategy for long-term, inclusive development, which could be made possible by several practical steps and legal reforms such as Mandating impact assessments and audits , Linking CSR to mine closure planning, promoting pooled CSR funds , and strengthening monitoring mechanisms. Waste Management: What Happens to All That Dirt? “It might come as a surprise, but in 2015, India recorded the highest number of pollution-related deaths globally.” According to The Lancet, 2.51 million lives were lost due to polluted air, water, and soil which is nearly 28% of global pollution deaths. According to the State of Global Air 2019 report, children born in South Asia today face a potential reduction in life expectancy by up to 2.5 years solely due to exposure to air pollution. Consider the mining industry, not just the familiar image of trucks transporting coal or iron ore, but the often-overlooked environmental consequence: for every tonne of mineral extracted, several tonnes of hazardous waste are generated and left behind, over a billion tonnes each year in India alone, this waste isn’t harmless. We’re talking over burden, tailings, slag, sludge, and dust, all dumped dangerously close to villages and water sources, untreated. So, what can we do? Innovations like geopolymer concrete, sedimentation tanks, and bioremediation show promise but lack widespread adoption. Some companies like Tata Steel are testing these innovations. But unless these become the norm we’re just putting a Band-Aid on a growing crisis which was as also stated in the case of Vellore Citizens Welfare Forum v. Union of India (1996), where the Supreme Court advocated for the “polluter pays” principle, but implementation remains inconsistent. It’s time mining got a sustainability
Understanding India’s Legal Stance on Holding The Indus Water Treaty in Abeyance
Written by Suvansh Shanker & Gargi Srivastava “Many of the wars of this century were about oil, but the wars of the next century will be about water.” Ismail Serageldin (Former Vice President, World Bank) Pakistan, on Monday, urged India to resume the normal functioning of the Indus Waters Treaty, 1960 (hereinafter “IWT”), which New Delhi has held in abeyance since May 2024, citing the recent decision by the Permanent Court of Arbitration in The Hague as evidence of the treaty’s continuing relevance. This diplomatic request follows India’s suspension of the treaty in the aftermath of a horrific terrorist attack in the Indian Union Territory of Jammu & Kashmir that claimed 26 civilian lives. In a letter and Note Verbale dated 24th April, India’s Water Resources Secretary, Debashree Mukherjee, informed her Pakistani counterpart, Syed Ali Murtaza, that the IWT would be placed in “abeyance with immediate effect” until Pakistan “credibly and irrevocably abjures its support for cross-border terrorism.” India cited a fundamental change in circumstances, the erosion of good faith due to sustained cross-border terrorism, and Pakistan’s failure to respond to modification notices under Article XII(3), all of which, India argued, constituted a breach of the treaty. IWT is the treaty that governs the water sharing of the Indus River System between India (Upper riparian State) and Pakistan (Lower Riparian State), which was signed in 1960 following a compromise between Prime Minister Jawaharlal Nehru and his counterpart, Field Marshal Mohammad Ayub Khan. Accordingly, the river system is divided into Eastern (Ravi, Beas, and Sutlej) and Western Rivers (Indus, Chenab, and Jhelum), with India having exclusive rights on the former and the right to use for non-consummative purposes on the latter. Article IX of the IWT provides a three-tier mechanism: first, the Permanent Indus Commission; second, a Neutral Expert; and third, the Permanent Court of Arbitration—with the World Bank facilitating appointments and procedures at the second and third stages It is to be noted that IWT does not contain a unilateral suspension, withdrawal or denunciation clause, let alone define the legal effect of putting the ‘treaty in abeyance’. Article XII (4) provides for the termination of the treaty upon the conclusion of a subsequent duly ratified treaty between the two governments. The major question arises is whether the unilateral actions of India are backed by the International Law and what is the legal effect of the keeping the treaty in “Abeyance.” India’s stance under the Vienna Convention on the Law of Treaties: In the case of ambiguity in Treaty interpretation, resort is taken to the Vienna Convention on the Law of Treaties (hereinafter “VCLT”). It must be clarified at the outset that VCLT is per se not applicable on the parties because firstly, neither India nor Pakistan are a signatory to the convention and secondly, the IWT pre-dates VCLT and Article 4 of the same provides for non–Retroactive application. However, some of the provisions related to the denunciation and suspension of the treaty are part of Customary International Law (hereinafter “CIL”), and therefore applicable in the present case. Article 56 provides for the rights and procedure thereof, of denunciation of a treaty, which lacks express provision regarding termination or denunciation, as in the present case. The commentary to the draft article on Law of Treaty (hereinafter “Draft Articles”) explains that the provision does not exclude any unilateral right to denounce/terminate the treaty and same can be claimed if (i) Parties intended the possibility of denunciation (a question of fact, to be determined by reference to all circumstances of the case); (ii) such right can be implied by the nature of the treaty (accounting general circumstance of the case that parties intended to allow right to unilateral denunciation) and (iii) a twelve month notice to be given of the party’s intention to denounce the treaty. In its note verbale, India claims IWT is a bilateral water sharing agreement without a formal denunciation clause, and in the event of changed circumstances such as demographic shifts, the need to develop clean energy sources and cross border terrorism, and given Pakistan’s refusal to renegotiate the terms of the treaty in light of the above, India cannot be denied the right to denounce the treaty. Additionally, India’s formal notices issued in 2023 and 2024 also fulfill the procedural requirement of twelve months’ notice. India used the ‘fundamental change in circumstance’ as the ground, as provided under Article 62 of VCLT, which was held to be part of CIL in ICJ’s Gabčíkovo-Nagymaros Project (Hungary/Slovakia). The ground is based on the principle of ‘rebus sic stantibus.’ Paragraph 1 provides series of limiting condition under which right to denunciate can be claimed; (1) the change should be in circumstance existing at the time of conclusion of the treaty; (2) Change must be fundamental; (3) change must be unforeseen; (4) the existence of the those circumstance must have constituted an essential basis of consent by the parties to enter into the treaty; and (5) the effect of change must be such as to radically transformed the scope of obligation under the treaty. The high threshold, as explained by the Draft Articles, is to refute any arbitrary and non genuine attempts to terminate the treaty. One the question of whether Article 62 provides for unilateral right to terminate the treaty, the International Law Commission (hereinafter “ILC”) noted that in certain cases, such right can be claimed provided the threshold of paragraph 1 is fulfilled. Additionally, the ‘general change of circumstances’, outside the direct scope of the treaty, are not entirely irrelevant for the constitution of the ground. On the other hand, the ILC considered that other circumstances for example, policy change of the government, not necessarily in the direct scope of the treaty, can constitute the ground, if it has the effect of altering the essential basis of consent between the parties. There is no straitjacket test to apply, it depends on the case to basis. India here claims, as reflected in its prior communications with Pakistan, that a reassessment of
Federalism and Centre-State Relations: Balancing Harmony and Autonomy in India’s Constitutional Framework
Written by Shri Ganarchit.B India’s constitutional framework establishes a unique federal system that seeks to harmonize a strong central authority with regional autonomy, creating a delicate balance between national unity and state diversity. Described as a “Union of States” under Article 1, India’s quasi-federal structure grants states their own governments and legislatures while embedding them within a unified polity. This note explores the constitutional design, division of powers, fiscal federalism, executive and emergency provisions, cooperative mechanisms, and contemporary tensions, providing a comprehensive analysis of Centre-State relations as of July 2025. Constitutional Design and Federal Identity Article 1 of the Constitution declares, “India, that is Bharat, shall be a Union of States,” emphasizing an indestructible union rather than a federation allowing secession. This reflects a quasi-federal system where states have significant autonomy but are subject to central oversight. For example, Article 3 empowers Parliament to alter state boundaries or create new states, as seen in the 2014 formation of Telangana, typically after consulting the affected state legislature. This provision underscores the Centre’s pivotal role in shaping the federal landscape while fostering cooperation to maintain national unity. The Preamble further reinforces this balance, protecting states’ existence as integral to India’s federal identity. Division of Legislative Powers The Constitution meticulously divides legislative powers through the Seventh Schedule, which categorizes subjects into three lists under Article 246: Article 248 grants the Centre residuary powers to legislate on unenumerated subjects, which can lead to jurisdictional disputes. Courts resolve these using the “pith and substance” doctrine, assessing a law’s core intent to determine its validity. For instance, a state law on agriculture that incidentally affects banking (a Union subject) is upheld if its primary purpose falls within the State List. Constitutional amendments, such as those under Article 3, allow flexibility for national priorities, but the basic structure doctrine, as affirmed in Kesavananda Bharati v. State of Kerala (1973), prevents the dissolution of states, safeguarding federalism. Articles 249–252 further enable central intervention in state domains under specific conditions, such as a Rajya Sabha resolution or state consent, exemplifying cooperative federalism. This structure ensures clear responsibilities while allowing adaptability for shared concerns. Fiscal Federalism and Financial Dynamics Financial interdependence is a cornerstone of India’s federal system, governed by Article 280, which mandates the Finance Commission to recommend tax-sharing formulas every five years. The 14th Finance Commission (2015–2020) increased the states’ share of central taxes from 32% to 42%, and the 15th Finance Commission (2021–2026) adjusted this to 41% following Jammu & Kashmir’s reorganization into Union Territories. According to the Union Budget 2025-26, tax devolution to states is estimated at ₹14,22,444 crore, reflecting a 10.5% increase from 2024-25 revised estimates. However, challenges persist. Cesses and surcharges, excluded from the divisible pool, reduce actual devolution, with their share in gross tax revenue rising in recent years, prompting state criticism. The GST regime, introduced under Article 279A, compensates states for revenue losses, with ₹1,15,662 crore released in 2022–23 to address cess shortfalls. Centrally Sponsored Schemes (CSS), funded under Article 282, provide critical support in sectors like health and education but often come with central guidelines, limiting state discretion. Critics argue these schemes create vertical fiscal imbalances, as states bear significant expenditure responsibilities with constrained revenue autonomy. Table: Key Financial Devolution Figures (2025-26 Budget Estimates) Item Amount (₹ crore) % Change from 2024-25 RE Total Transfer to States 25,59,764 12.5% Tax Devolution 14,22,444 10.5% Grants (including FC Grants) 11,37,320 – Capital Expenditure Loans 1,50,000 20.0% Source: PRS Legislative Research, Union Budget 2025-26 Analysis, https://prsindia.org/budgets/parliament/union-budget-2025-26-analysis Executive Authority and Emergency Provisions Administratively, the Centre exercises oversight through Articles 256 and 257, mandating state compliance with Union laws and allowing central directives. Governors, appointed by the President, serve as Union agents, with powers to reserve state bills or recommend President’s Rule under Article 356. This provision, used over 100 times by 1994, has been controversial, often perceived as central overreach to dismiss opposition-led state governments. The landmark S.R. Bommai v. Union of India (1994) case addressed this misuse, ruling that President’s Rule proclamations must be based on objective material, are subject to judicial review, and require a floor test to verify a state government’s majority. The Supreme Court emphasized that states are “not mere appendages” of the Centre, reinforcing federalism as a basic structure of the Constitution. Emergency provisions, such as Article 352 (National Emergency) and Article 360 (Financial Emergency), further amplify central authority, allowing Parliament to legislate on state subjects or control state finances. Article 131 enables states to challenge central actions in the Supreme Court, as seen in West Bengal’s 2024 suit over CBI jurisdiction, ensuring judicial checks on federal overreach. Institutional Mechanisms for Cooperation India employs several institutions to promote cooperative federalism. The GST Council, established under Article 279A, unites Union and state finance ministers to set GST policies through weighted voting (75% majority, with states holding two-thirds votes). NITI Aayog, replacing the Planning Commission in 2015, facilitates policy dialogue through its Governing Council, comprising the Prime Minister and all Chief Ministers. The Inter-State Council, under Article 263, aims to enhance policy coordination but remains underutilized due to infrequent meetings. Other mechanisms, like tribunals under Article 262 for inter-state river disputes, provide platforms for resolving conflicts without immediate judicial intervention, embedding state voices in national governance. Contemporary Tensions and Trends India’s federalism faces ongoing challenges, particularly from policies perceived as centralizing. The 2016 demonetization, which invalidated 86% of currency notes, disrupted state economies without prior consultation, drawing sharp criticism from states like West Bengal. Chief Minister Mamata Banerjee called it a “financial chaos and disaster,” highlighting its impact on cash-dependent sectors like agriculture. Similarly, the 2020 labor codes, consolidating 29 central laws into four, faced opposition from states like Tamil Nadu and Kerala, who argued they undermine worker protections, particularly for informal workers. Trade unions and opposition-ruled states criticized the codes for favoring employers and lacking tripartite consultation, violating International Labour Organization principles. Despite these tensions, cooperative federalism endures. The GST framework emerged from extensive Centre-State negotiations, and regional parties have
INDIAN FEDERALISM: SCENARIOS OF POWER SHARING
Written By Arshdeep Kaur student at National University of Study and Research in Law, Ranchi. INTRODUCTION– We Indians have evolved from the times of Kings to the present-day Democratic Government while we still see countries like Britain with Queen as the apex authority. One of the essential features of monarchs is that the power to make decisions, however sovereign, is concentrated in the hands of a single individual at the ruling position. Contrary to this, we see a division or sharing of power in India between Centre and State where States are also provided with a significant amount of autonomy of their own. This article aims to provide gainful insights into the kind of Federalism India possesses, the changing dynamics or the problems surfacing, and key policy suggestions for improvement. IS INDIA FEDERAL? The term Federalism is a dual type of Governance where powers are equally divided between the UNION and the STATES with none being superior to each other, each deriving their respective powers from the same source that is ‘The Law of the Land’. This leads us to the fact that India is not a federal country. The word ‘FEDERAL’ doesn’t appear even once in constitution but ARTICLE 1 describes India as a union of 28 states. The term was coined by Modern Manu-Dr. B.R. Ambedkar because the word ‘UNION’ is indestructible. India as a Federation is not a result of an agreement among States. Thus, are not allowed to secede or separate from the Indian Union. The Constitutional analysts also term India as ‘QUASI FEDRAL’ i.e.; Federal in Structure and Unitary in Spirit or highly Centralized towards the Union (Central Bias). India has basically 6 Federal features: Parliament can make laws for the whole or any part of territory of India under Article 245. The Three lists is however only concerned with powers to legislate whereas Government in India functions through its three organs: – Legislature, Executive and Judiciary within their specific designated areas. In relation to Executive, Union is empowered under Article 73 to exclusively implement the laws made on subjects on which only it has the authority to legislate. State implements under Article 162 respectively the State’s exclusive matters and acts for concurrent subjects unless authority was kept by Union with itself only. Union can transfer its implementing powers to Sates by itself under Article 258. The term ‘Executive Federalism’ comes from Canadian Constitution which doesn’t follow British or American form of Government but a mixture of both. Other inspiration is Government of India Act of 1935 celebrating diversity by giving limited provincial autonomy with a strong Centre. Similarly, Indian Constitution also gives unequal powers to Centre and State. Thus, with this allocation of disproportionate powers between Centre and States makes States to certain degree subordinate to Centre. But this is often justified in the name of national unity but gives birth to Confusion, clashes, disputes as to jurisdiction. However, despite all these efforts being made, disputes are destined to arise regarding Power Dynamics. PRESENT DAY POWER DISPUTES:- Supreme Court, under Article 131, plays a critical role in resolving Centre-State disputes. However, inconsistent rulings on whether states can challenge central laws under this article have created ambiguity, necessitating clearer judicial guidelines. IMPROVING THE RELATION: POLICY RECOMMENDATIONS: – NATIONAL DEVELOPMENT COUNCIL: formed on 6 August 1952 comprising of PM, CMs and Planning Commission members to strengthen relations besides fostering National Development plans and Common Economic Policies. NITI AAYOG (National Institute for Transforming India): It is the think tank of government replacing Planning Commission set up in 2016 with PM Modi as its chairman and BVR Subramaniyam as current CEO enabling states to form economic policy, promote cooperative federalism, Plan and design long term policies for inclusive development. COOPERATIVE FEDERALISM UNDER INTER-STATE COUNCIL: established under Article 263 by President in 1990 to discuss common areas of interest between Centre and State, Inter-State disputes and present policy recommendations under Article 263(b) and (c) on Sarkaria Commission recommendation. A conference was held at Srinagar in 1983 organised by non-communist CMs to bring together Left Parties, Akali Dal, National Conference and Telegu Desam where demand for greater autonomy was put forward by Shri Jyoti Basu, CMO West Bengal that led Central Government to appoint Sarkaria Commission headed by Ranjit Singh Sarkaria (290+ recommendations) over 6 years. But it met only 10 times till 2012 and last in 2006. It recommended on non-financial issues like: -Role of Governors- to be appointed by president out of 3 suggested non-political faces by CM (violated) -Misuse of Article 356 (104 times), time-limit imposition to curb delay in state legislations getting presidential assent. Parliamentary debates talk about States receiving only 32% of Central Tax revenues under CMP despite contributing 60% of development expenditure. So, demand was made for 50% share. Lack of funds in Centrally sponsored schemes, lack of State’s consent in International Treaties and Centre unfair market domination was pointed out. Most cited case is that of 1994 Bommai Judgement that clarified that Indian Constitution is not truly federal with people as legal sovereign and Political Sovereign to be divided into Centre and States, also purposed under GOI Act of 1935. To access situation, Government has time to time appointed commissions like Administrative Reforms Commission chaired by Morarji Desai first on 5 January 1966 under Indira Gandhi due to rise of non-congress state governments in 1967 and 2nd in 2005 to improve public administration by ensuring efficiency, transparency, and accountability. Later, Punchhi Commission came on 27 April 2007 under Justice Madan Mohan Punchhi. CONCLUSION: Indian federalism thus balances a Strong Centre with state autonomy, shaped by historic constitutional debates and frameworks like the GOI Act, 1935 and 1994 Bommai Judgment. While institutions like the Inter-State Council and NITI Aayog aim to foster cooperative federalism, challenges such as fiscal disparities, limited state consultation, and centralization still exist. Strengthening Centre-State collaboration and enhancing autonomy, are crucial for a vigourous, inclusive federal structure.
AN INTRODUCTION TO FEDERALISM AND TERRITORIAL INTEGRITY
Written by Nikita Kujur During the American Civil War, neither the Southern States, nor the Union was able to destroy the other, thus, concretizing an essential feature of federalism, i.e., the Union or the States cannot abolish the other. This can be taken as finality of the borders of the federating units within the federation giving birth to the doctrine of territorial integrity. A feature, which goes a hand-in-hand with federalism as it allows unity without suppression. The fact that state borders in the US and Australia have remained unchanged for more than hundred years is an example of territorial integrity, but India provides a varying instance. The nearly octogenarian country has been busy in continuously drawing and redrawing its border, thus, diluting the essence of its territorial integrity. The concept of federalism has also undergone an evolutionary phase from confederation to modern-day nation-states ticking the prerequisites for a federal state. Attempts are often made to fit a federal state into a straitjacket formula, but the very concept of federalism has to be tailor-made as per social, economic and political conditions of that particular nation-state. This places Indian federalism as well as its treatment of territorial integrity at variance with other federal states. This write-up is a way to reflect upon how the ability of the Centre to abolish the units can be seen as an attempt towards giving recognition to heterogeneous elements of India, thereby giving way to the true essence of federalism. FEDERALISM AND TERRITORIAL INTEGRITY AN INTRODUCTION The power that giveth can taketh away. These words give an impression of greater centralization, but it also reflects an ever-evolving dynamics of power sharing in India. Such developments are further echoed in the federal structure and territorial integrity of India. The former can be understood as a two level governance mechanism consisting of general and regional government, both working independently and in cooperation, and catering to the same populace. Article IV of the Helsinki Final Act 1975, defines territorial integrity in relation to international law, “Nation-states should not attempt… nor impose a border change through force.” This aspect becomes relevant in the context of drawing the internal boundaries in a nation-state. Thus, federalism and territorial integrity together can be understood as-the former allowing autonomy of the states and the other enabling the continuity of that autonomy. In India’s case, federalism was a political solution for its political problem of accommodating the diverse needs of its diverse populace. Supplementarily, to further assimilate this heterogeneity, India adopted a loose interpretation of territorial integrity. The implication of such interpretation can be seen starting from the State Recognition Act, 1956 and the latest step in this direction being the Jammu and Kashmir Reorganization Act, 2019. This gives an impression that India has not reached the panacea when it comes to the drawing of the territorial borders of federating units. PART I: THE STATE REORGANIZATION ACT, 1956 The State Reorganization Act, 1956 is a reflection of the conundrum between decentralization and dilution of Doctrine of Territorial Integrity. The Constitution allows for redrawing of territorial boundaries by a simple majority in Parliament. This shows that the framers did not envisaged perpetuity when it comes to the internal boundaries, rather they saw the redrawing to accommodate and assimilate the changing needs. The Supreme Court in the case of In re Berubari Union stated: “The Constitution contemplated changes of the territorial limits of the constituent States and there was no guarantee about their territorial integrity.” This was in sharp contrast to what is seen in the US, where the protection of ‘State’s right’ is important, and Doctrine of territorial integrity finds a place in the Constitution. The position of federalism and territorial integrity in India and the US can be credited to how these federations came into existence. As a result, the Indian federalism is seen as an “indestructible Union of destructible units.” Independent India inherited the political borders drawn by the British which continued till 1956, resulting in the continuation of multicultural and multilingual states in India. Drawing of state borders along cultural and linguistic lines was seen as a solution to the continuously emerging trends and challenges in Indian politics, and also as a way of reflecting the federal character of the nation-state. Besides, the existing borders did not hold much rationale when it came to the existing conditions of India. The State Reorganization Act, 1956, from the perspective of classical federal states, such as the US would appear as abolishing the existing units, but taking into consideration the Indian context, such reorganization gave way to linguistic administrative units. Thereby, aiding in imbibing the mother tongue in administrative and judicial capacity, and thus, giving way to grass-root governance. In addition, such dilution of territorial integrity was aimed at ensuring that the marginalized sections of the society can become active participants in the democratic processes of the country. This reorganization destroyed some existing states like earlier Madras Presidency or the Bombay Presidency and gave in its place states like Tamil Nadu, Andhra Pradesh, Maharashtra and Gujarat. One cannot imagine a large state like Texas getting split up for administrative efficiency. The case of State Reorganization back in the 1950s was a demand which arose from the bottom rather than something which was imposed on the states from the top. Thus, one can say that by having our own interpretation of territorial integrity we are moving towards a federalism which gives greater recognition to the state’s desires and autonomy. According to Mann, ‘Such reorganization has strengthened the federal structure of Indian nation-state and had also aided in the nation building.’ The dilution of the concept of territorial integrity can also be seen in the light of ethno-federalism, wherein the internal borders are drawn along ethnic lines, in order to create self-governing units. Such creations are often seen as a way of accepting regional aspiration without destabilizing the larger socio-politico structure. It is said that the success rate of such creation is more than one is ready