Polity: federal structure and comparison with other constitutions

The 73rd and 74th amendments made panchayats and municipalities constitutional bodies with mandatory elections, reservation and state finance commissions. Three decades on, the institution exists everywhere and governs very little.

What has worked

Political inclusion at scale: Over three million elected representatives, with reservation delivering participation by women, Scheduled Castes and Scheduled Tribes on a scale no other democracy has attempted.

Delivery where devolution was real: Kerala and Karnataka show that panchayats given functions and funds do improve water, sanitation and local works.

Why it underperforms

Functions not transferred: The eleventh and twelfth schedule subjects are illustrative, and most states have devolved only a handful. Parallel bodies and district agencies do the actual work.

Funds are thin and tied: Own source revenue is negligible, property tax collection is far below potential, and most receipts arrive as tied grants attached to named schemes.

Functionaries are not theirs: Staff belong to state cadres and are accountable upward, so an elected sarpanch cannot direct the person who implements.

State finance commissions sidelined: Many states constitute them late and act on their recommendations selectively, so the fiscal link is broken at its own source.

Capture and proxy: Elite capture, and the persistence of the sarpanch pati, hollow out the reservation that is the system’s main achievement.

Urban government is weaker still: Mayors in most cities have short terms and no executive authority, which sits with a state appointed commissioner.

What would improve it

Statutory activity mapping: Each schedule subject assigned to a defined tier with staff and budget attached, so devolution is auditable rather than declaratory.

Fiscal autonomy before transfers: Buoyant property tax, user charges and untied grants. The Sixteenth Finance Commission has recommended ₹7,91,493 crore for local bodies over 2026-31, more than double its predecessor, but a grant cannot substitute for own revenue.

Directly elected mayors: A full term and real executive powers, so that urban accountability has an address.

Capacity and audit: Trained local cadres, online accounts and social audit as routine rather than as exception.

The third tier was created by the Constitution but is still funded and staffed at the pleasure of the states. Until functions, funds and functionaries move together, local government will remain an elected body with no government attached.

Delhi is a union territory with a legislative assembly under Article 239AA. It has an elected government whose competence excludes public order, police and land, and a Lieutenant Governor who is not a titular head. The design contains the conflict.

What the 2018 judgment held

Aid and advice binds: The Lieutenant Governor is bound by the aid and advice of the council of ministers on every matter within the assembly’s competence.

No general discretion: He has no independent decision making power and cannot act as an obstructionist or require his concurrence for every proposal.

The reference power is exceptional: The proviso permitting him to refer a difference to the President is for substantial issues and cannot be used routinely.

The principles invoked: Collective responsibility, federal balance, representative government and constitutional morality.

Why it could not settle the tussle

It left the operative question open: The judgment did not decide control over services, which is precisely where the daily conflict lives.

The proviso survived: The power to refer a difference remained, and whether an issue is substantial cannot be settled in advance.

The text was untouched: Article 239AA still withholds police, public order and land, so the elected government lacks instruments that a state government possesses.

Enforcement is slow: Each fresh dispute requires fresh litigation, so a victory in principle produces delay in practice.

What followed

2019: A two judge bench divided on services, leaving the central question unresolved for four more years.

2023: A Constitution Bench held that the elected government has legislative and executive control over services other than the excluded entries.

Immediately after: Parliament legislated to create a statutory authority for services in which the Lieutenant Governor’s view prevails, and that law was itself challenged.

A court can interpret an ambiguous provision. Only Parliament can remove the ambiguity, and Parliament has chosen instead to use it. The 2018 judgment settled the principle and left the machinery untouched, which is why the tussle continued.

Article 243D reserved not less than a third of seats and chairperson posts for women in panchayats, and more than half the states have since raised the share to fifty per cent. Over a million women hold local office. The question is what that presence has changed.

Evidence that the impact is limited

The proxy: The sarpanch pati or pradhan pati, where the husband exercises the office and the woman signs, remains common enough to be named.

Confinement to the reserved seat: Women rarely win unreserved seats, and rotation of reserved seats prevents the accumulation of experience and a personal base.

Exclusion from the real business: Standing committees, contracts and the interface with block officials often remain male even where the chair is not.

No upward transmission: Local reservation did not translate into higher representation, and women remain a small minority in state assemblies and in Parliament.

Social cost of holding office: Women representatives face humiliation and obstruction, and Dalit women sarpanches face caste hostility layered on top of gender.

The national law is deferred: Reservation of a third of seats in the Lok Sabha and state assemblies takes effect only after a census and delimitation, so it remains prospective.

Evidence that the impact is real

Changed priorities: Research on panchayats in West Bengal and Rajasthan found that women leaders invested more in drinking water and in the infrastructure women had themselves identified as priorities.

Reduced prejudice over time: Repeated exposure to a woman leader was found to lower voter bias and to raise the educational aspirations and attainment of adolescent girls.

A training ground: Many women who began as proxies exercised the office themselves in a second term, so the effect appears over cycles rather than immediately.

A change in the normal: The sight of women conducting gram sabhas has itself altered what a village considers ordinary.

Why the gap persists

The seat is not the power: Reservation changes who occupies the chair, not who controls land, money and party nomination.

Patriarchy sits elsewhere: It is located in the household and in the party, and Article 243D reached neither.

Reservation put women in the chair. Patriarchy responded by moving the power out of the chair. The impact has therefore been slow, real and generational, and it will remain limited until parties and households change alongside the law.

The Constitution creates a union of states with a strong centre, single citizenship and an integrated judiciary. Within that frame the relationship has been worked out in practice through three modes operating at once.

Cooperation

Pooled sovereignty: The GST Council, where the union and the states share authority over indirect taxation and decide by weighted majority, is the clearest institutional instance.

Crisis coordination: Disaster response, public health emergencies and the inter state council mechanism function on cooperation rather than command.

Competition

Competition for investment: States compete on ease of doing business, land, power tariffs and dedicated incentives to attract manufacturing and capability centres.

Competition by design: NITI Aayog indices on health, education, water and innovation rank states publicly, which converts performance into a political fact.

Fiscal incentive: The Sixteenth Finance Commission award for 2026-31 shifts further toward performance and compliance based transfers, including a criterion for contribution to national output, which sharpens the competition.

Confrontation

Fiscal grievance: Southern and western states argue that population based devolution penalises success in demographic transition, an argument sharpened by the approach of delimitation.

Investigative agencies: More than ten states, among them West Bengal, Kerala, Tamil Nadu, Punjab, Telangana and Karnataka, have withdrawn general consent to the CBI.

The office of governor: Prolonged delay in assenting to state bills produced litigation, and in November 2025 the Supreme Court, answering a presidential reference, held that courts cannot fix timelines for assent and that there is no concept of deemed assent.

Indian federalism is not a settled arrangement but a continuous negotiation. Cooperation builds the institutions, competition improves performance and confrontation marks the boundary. A federation showing only one of the three would be either a unitary state or a failing one.

The CBI has no statute of its own. It functions under the Delhi Special Police Establishment Act of 1946. Police and public order are state subjects under entry 2 of the State List, so the Act requires state consent for the agency to operate within a state.

The legal basis

The scheme of the Act: Section 5 allows the union to extend the agency’s powers to a state, and section 6 makes that extension inoperative without the consent of the state government.

Two forms of consent: General consent, given once for a class of cases, or specific consent granted case by case.

Why states object

The constitutional ground: Policing is a state subject, and unrestricted central investigation would erode a field the Constitution assigns exclusively to the states.

The political ground: States allege selective deployment against opposition governments, which is why more than ten states, including West Bengal, Kerala, Tamil Nadu, Punjab, Telangana and Karnataka, have withdrawn general consent.

The institutional ground: Courts have themselves commented adversely on the agency’s autonomy, which weakens the presumption that consent is safe to give.

Why the power is not absolute

Constitutional courts stand outside consent: The Supreme Court under Article 32 and a High Court under Article 226 may direct a CBI investigation anywhere in the country, and state consent is not required for such a direction. This flows from judicial review, which is part of the basic structure.

Withdrawal operates prospectively: Cases already registered while general consent subsisted survive its withdrawal, so consent cannot be used retrospectively to close an ongoing investigation.

Union employees cannot be insulated: A central government servant cannot be treated differently merely because his office lies in a state that has withdrawn consent, so corruption cases against union servants remain investigable.

Matters of union concern: Offences in union territories and railway areas, and cases with an inter state or international dimension, lie outside a single state’s control.

Consent may follow the fact: Post facto consent has been held sufficient to validate an investigation already begun.

The federal reading

Consent is a genuine safeguard: The requirement has been described by the Court as being in tune with the federal character of the Constitution, since it recognises that policing belongs to the states.

Absolute consent would be a shield: If withdrawal were conclusive, a state could immunise itself and its own officials from central investigation, which no federal principle requires.

The real correction is institutional: A dedicated statute for the agency with defined jurisdiction, fixed tenure and transparent selection, as parliamentary committees have urged, would reduce the use of consent as a political instrument.

Consent protects the state’s police power. It cannot be allowed to become immunity from investigation. The remedy is not to abolish consent but to make the agency credible enough that withdrawing it stops being politically profitable.