Author: B2B

Role of the Governor

The Governor is appointed by the President of India for five years. But he remains in the office till the pleasure of the President. It means, he can be recalled any time and his continuation in the office depends at the will of the Centre.

The Supreme Court has held that the Governor’s office is an independent office and neither it is under control nor subordinate to the Government of India.

However, a study of Governors in the States clearly exposes that most of them have been active politicians before becoming Governor and the rest were bureaucrats. They are appointed on political basis and therefore hardly expected to play a non-partisan role

It is the Governor’s biased role that has been the center point in Union-State skirmishes. The Governors have advanced the political interests of the ruling party of the Centre in the States.

This has been done most remarkably in the appointment of Chief Ministers, summoning, proroguing and dissolving the State Assemblies and in recommending President’s rule.

Besides the normal functions which Governor exercises as a constitutional head, he exercises certain discretionary powers. Some of them have been particularly conferred on him while some others flow by necessary implication.

These are significant particularly in the following cases:

• One is with regard to the appointment of Chief Minister when neither a single party nor a combination of parties emerges from the election with a clear majority. In this situation, there is a question of dismissal of Chief Minister on the loss of majority support or otherwise.
• The second is with regard to making a report to President under Article 356 about this satisfaction that a situation has risen in which the Government of the State cannot be carried according to the provisions of the Constitution. Thereby recommending the imposition of President’s rule, the issue of declaration of President’s rule itself has become a matter of serious tension between union and state governments.

Reservation of Bills for Consideration of President

According to the Article 200 of the Constitution, certain types of bills passed by the State legislature may be reserved by the Governor for the consideration of the President.

The President may either give his acceptance or may direct the Governor to send it back for reconsideration by the State legislature along with his comments.

But even after the bill has been passed by the State legislature for the second time, the President is not bound to give his assent. The main purpose of this provision is that the Centre can observe the legislation in the national interest.

But Governors, and through them the Central Government have used this provision to serve the partisan interests.

The opposition reigned States have from time to time raised a tone and shout against the misuse of these provisions. This has specially been the case where the Governor has reserved a bill against the advice of the State Ministry, presumably under the direction of the Central Government.

In its memorandum to Sarkaria Commission, the Bharatiya Janata Party alleged that the bills have been reserved for consideration of the President in order to create difficulties for the State governments.

The West Bengal government in its reply to the Sarkaria Commission’s questionnaire felt that Articles 200 and 201 either should be deleted or Constitution should clarify that the Governor would not act in his discretion but only on the advice of the State Council Ministers.

With reference to Indian Federation, the administration is primarily furnished by the state agencies.

Unlike other federations where both the federal and state government create their own agencies for the administration of their laws and the subjects allocated to them in the constitution, even the laws of the union are left to be administered by the state authorities in order to avoid duplication of administrative machinery.

In every federal constitution, the central and state governments are firmly enclosed and the jurisdiction of the one excludes the other.

The centre is concerned with problems of the Union List. The states are with matters on the State List.

There is also provision for the allocation of the powers by the union to the states and vice versa. The forte and success of such scheme require cooperation and coordination between Centre and States.

In India, the central government or the union is responsible for the governance of the whole country. There should be effective administrative norms between the Union and States.

The Supreme Court has demarcated that the Executive power of the union is coexistent with Power of the Parliament, with this limitation that the executive cannot act against the provisions of the constitution or of any law made by the parliament.

The Union Government is dependent on the States to give effect to its programmes. The scheme of distribution of administrative powers has some major objectives. It arms, the union government with powers to have effective control over administration of the state and espouses several advices for intergovernmental cooperation and coordination.

The executive powers in relation to any treaty or agreement has been discussed on the union by the Constitution, Parliament has also vested executive functions in the union over Concurrent List matters under several acts.

The Concurrent List gives power to the two legislatures, Union as well as State, to legislate on the same subject. In case of conflict or inconsistency, the rule of repugnancy, as contained in Article 254 comes into play to uphold the principle of Union’s supremacy.

Under this rule, if there is any discrepancy between the State and the Centre over a subject in the Concurrent List, the Union law takes precedence over the State’s law, and the State’s law to the extent of such repugnancy, be void.

But, as an exception, if the State law has been reserved for the consideration of the President and has received his assent, then the State law prevails in that State. But, the Parliament remains competent to override such a law by subsequently making a law on the same matter.

Executive Powers of the Union

They are assigned by the President who can exercise it directly or through officers subordinate to him in accordance with Constitution.

• The President has the power to appoint and remove certain dignitaries in the states.
• He appoints the Governor of a State who holds his office during the rule of the President (Article 155 and Article 156).
• He also appoints judges of the High Courts (Article 217) and plays a significant role in the removal of High Court Judges as also members of State Public Service Commission (Article 317).

Legislative Relations

• The Union-State relations in the legislative domain have been dealt by Articles 245 to 254.
• The Constitution evidently provides that the Parliament shall have special authority to make law for the whole or any part of the terrain of India with regard to subjects mentioned in the Union List.
• This list contains topics like defence, foreign affairs, currency, union duties, and communication.
• On the other hand, the State has exclusive power over the 66 items enumerated in the State List.
• This List comprises of topics like public order, health, sanitation, agriculture etc.
• Additionally, there is a Concurrent list containing 47 subjects like criminal law and procedure, marriage, contracts, trust, social insurance etc. over which both the Union and the State Governments can legislate.

The Union Government has an upper hand

• If the law of the Union Government and the State Government clash with each other, the former succeeds.
• However, a State law on the simultaneous list shall prevail over the Central law if the same had been reserved for the consideration of the President and his consent had been received before the representation of the Central law on the same subject. This clearly gives some flexibility to the States.
• The constitution also vests the residuary powers (viz., the enumerated in any of the three Lists) with the Central Government.
• It is established that in this distribution of powers, the Union Government has positively been given a preferred treatment. It has not only been granted more extensive powers than the States, even the residuary powers have been granted to it contrary to the convention in other federations of the world, where the residuary powers are given to the States.

The Union government can legislate on any subject included in the State List, under some specific circumstances, which are as follows:

(i) If the Council of States (Rajya Sabha) declares that it is necessary for the Centre to legislate upon a subject in the State list, in national interest, and passes a resolution to this effect, with a majority of at least 2/3rd of members present and voting (Article 249). This resolution remains in force for a year and can be renewed any number of times, but for not more than one year at a time. The laws so made do not have any effect six months after the resolution has ceased to be in force. At the same time, the State can also legislate upon the same subject, but in case of any inconsistency, laws of the Centre prevail. This particular feature makes the entire legislative process federal in nature.

(ii) When two or more State Legislatures pass a resolution, requesting the Parliament to legislate upon a subject in the State List (Article 252). The law passed by Union Parliament shall be applicable only to the States, which demanded such legislation. Any other State may later adopt it by passing a resolution to that effect. In this case, States cease to have power to legislate upon that subject and only the Parliament can amend or repeal such a law. In past, laws have been made using this provision, some of them are: Wildlife (Protection) Act 1972, Urban Land (Ceiling and Regulation) Act.

(iii) For the enforcement of International Treaties and Agreements. This provision enables the central government to fulfill its international obligations (Art. 253). The Lokpal and the Lokayuktas Bill, 2011 was introduced in the Parliament through the provisions of this particular article.

(iv) During national emergency, the Parliament can legislate upon any subject in the State List. Such a law becomes inoperative on expiration of six months after the emergency has ceased to operate (Article 352) However, at the same time the State can also legislate upon the same subject, but in case of any inconsistency, laws of the Centre prevail.

(v) During President’s rule in a State, the Parliament can make laws with respect to any subject in the State list, in relation to that state. Such a law continues to be operative even after the President’s rule. But it can be repealed, altered or re-enacted later by the State Legislature (Article 356).

Functions of Union

• Formulation, execution, evaluation and revision of public policy in various spheres which the party in power seeks to progress and practice.
• Coordination among various ministries and other organs of the government which might indulge in conflicts, wastefulness, duplication of functions and empire building.
• Preparation and monitoring of the legislative agenda which translated the policies of the government in action through statutory enactments.
• Executive control over administration through appointments, rule-making powers and handling of crises and disasters, natural as well as political.
• Financial management through fiscal control and operation of funds like Consolidated Fund and Contingency Funds of India.
• Review the work of planning and Planning Commission.

Functions of State

• State governments have separate departments for efficient functioning of the state. States have jurisdiction over education, agriculture, public health, sanitation, hospitals and dispensaries and many other departments.
• Internal security: The state governments have to maintain the internal security, law and order in the state. Internal security is managed through state police.
• Public order: States have jurisdiction over police and public order.
• Education: Providing a public education system, maintaining school buildings and colleges, employment of teachers, providing help to under privileged students all come under the education department of the state.
• Agriculture: The state governments have to provide support for farmers, funds for best farming practices, disease prevention and aid during disasters such as floods or droughts.
• Finances: State legislature handles the financial powers of the state, which include authorisation of all expenditure, taxation and borrowing by the state government. It has the power to originate money bills. It has control over taxes on entertainment and wealth, and sales tax.
• Reservation of bills: The state governor may reserve any bill for the consideration of the President.
• Transport: State government runs the trains, trams, bus and ferry services and other public transportation in the cities and towns of the States.
• Water supply: Water supply to cities and towns for drinking, including irrigation for farmers, is the responsibility of the State governments.
• Budget: State governments make budget for state.

Concept of federalism

There are three ways in which power can be divided between a central authority and various constituent units of the country:

• Federal
• Unitary
• Confederation Federalism: a system of government in which the same territory is controlled by two levels of government. In this system, the Central Government usually oversees the issues that are of importance for the entire country, whereas the government at the lower level looks after issues of local concern.

The purpose of this Division of Power between the two tiers of government is twofold:

1. Preventing concentration of power in the hand of one tier of government
2. Generating strength of the nation through the Union.

What exactly are the characteristics of federalism?

There should be two levels of governments, with each having its own independent sphere of administrative and legislative competence.

• Each level of the government should have an independent tax base.
• A Written Constitution from which respective governments derive power.
• An independent judiciary to adjudicate if conflict arises between the two tiers of government.

How does the Central government excise this control?

The Central government has control over the states through different agencies and varied techniques:

• Governor
• Directions to the State Government
• Delegation of Union functions
• All-India services
• Grants-in-aid
• Inter-State Councils
• Inter- State Commerce Commission
• Immunity from mutual taxation

Federalism in India

While India is a federation, the nature of the India’s federalism is often discussed. Some have argued that it is a quasi-federal arrangement. Others consider it as having a unitary character, with many federal features.

Moreover, though India has a federal form of government, the world federalism/federation has not been used in the Indian Constitution (the Constitution does not expressly declare India as a federation).

Article 1 of the Constitution says that India is a Union of States. 

India’s position, thus, is significantly different from that of USA, where states bargained and a federation was created. The overriding concern at the time of drafting the Constitution was the “unity and integrity of India”.

This led to a number of factors that gave the Indian Constitution a decidedly unitary tilt, with several provisions in favour of the Union. Some of them have been mentioned below:

Unitary Features:

• Residuary powers are with the Union Government
• States can be created or diminished without their consent
• Concept of single citizenship, unlike that of USA
• All India Services officers head important positions in States
• The role of Governor in States is very important and he is appointed by the Central Government
• The system of audit is headed by the CAG, who is appointed by the Central Government
• The judges of High Courts are appointed by the President

The framers of the Indian Constitution went in for a mix of strong Central government, with substantial autonomy to the States.

Inspite of the centrist bias of the Constitution largely instituted for preserving unity and integrity of the country, the Supreme Court had to concede in S.R. Bommai vs. Union of India (AIR 1994 S.C. 1918) that federalism, like secularism, is a basic feature of the Constitution.

Jawaharlal Nehru National Urban Renewal Mission (JNNURM)

JNNURM has been a path breaking scheme, which extended the scope of government sponsored development initiatives to urban areas in addition to rural areas. JNNURM can be termed as a direct outcome of the 74th Constitutional Amendment Act, which ensures urban sector reforms to strengthen municipal governance. The objective of JNNURM is to improve the quality of life and infrastructure in the cities. After the completion of its first phase in 2012 the scheme has been further extended for two years till 2014. Now the plans are on to launch the second 10-year phase of JNNURM. JNNURM-II would not only focus on the current cities but also the smaller cities with population five lakhs and above.

Successes of JNNURM

1. Its uniqueness lies in linking federal grants to reform governance. It has helped raise awareness and concern about problems of urban growth and management. Urban matters are now more widely talked about than ever before
2. It has helped in the expansion of sewage collection, treatment and sanitation to enable more hygienic environment in the cities
3. With the launch of JNNURM, the environment for implementation of schemes in the PPP mode has become more congenial
4. JNNURM has managed to provide a strong impetus to investments in urban sector and incentivized cities to develop sustainable investment frameworks through service delivery reforms and cost recovery of services provided.
5. Many of the urban spaces have become liveable again and some of the notable achievements in this regards are 24×7 water supply in some cities, Ahmedabad Bus Rapid Transit System, property tax collection system in Bengaluru etc.
6. The mission has partially contributed to the achievement of MDGs like providing sustainable access to safe drinking water and basic sanitation, ensuring environmental sustainability and the eradication of slums and to achieve significant improvement in lives.

Federal aspect of JNNURM

The 74th CAA calls upon states to provide the municipalities with adequate powers, mainly due to a major lack of capacity within the local bodies, to handle enhanced responsibilities. This was however helped by the general reluctance of many states in transferring powers to the lower tiers of governments, namely, the municipalities.

JNNURM aimed at addressing the two parts of the problem together by incorporating the issue of delegation of powers from the states to the municipalities and enhancing the capacities of local bodies, as part of the programme package.

It provided financial assistance to the states and the local bodies to undertake listing down of good practices, exchange of ideas among the peer group and strengthening the training institutions.

At the same time, the JNNURM made it mandatory for states to commit to empower the municipal bodies adequately, in line with the 74th CAA and also to commit to bring about fundamental reforms, which lay in the domain of the state governments and on which the municipal bodies had no control, such as introducing an arrangement of clear and enforceable titles of the proper.

Planning for Local Governments

Before the advent of 74th Constitutional Amendment Act, Zila Parishad and Municipal bodies were entrusted with the planning and allocation of resources at the district level. The 74th CAA made provisions for the constitution of a Planning Committee at the district level, with a view to consolidate the plans prepared by the Panchayats and the Municipalities and prepare a development plan for the district as a whole.

District Planning Committees (DPCs)

District Planning Committee (DPC) is the committee created as per article 243ZD of the Constitution of India at the district level [1] for planning at the district and below. The Committee in each district should consolidate the plans prepared by the Panchayats and the Municipalities in the district and prepare a draft development plan for the district.

In preparing the draft development plan, the DPC shall have regard to matters of common interest between the panchayats and the municipalities including spatial planning, sharing of water and other physical and natural resources, the integrated development of infrastructure and environmental conservation and the extent and type of available resources, both financial or otherwise.

The DPC in this endeavor is also mandated to consult such institutions and organizations as may be specified. In order that the plans at different levels are prepared, there is need to strengthen the system comprising the machinery of planning and the process of consolidation of plans at the district level.

Problems of DPCs

1. In most States DPCs are yet to function as envisaged in the Constitution. They neither consolidate nor prepare draft district developmental plans.
2. Very few States are preparing district plans even though some of them allocate funds to the district sector
3. In several States, where there is no separation of the budget into District and State sectors, allocation of funds to Panchayats does not match the legislative devolution of functions to them.
4. Funds given to Panchayats are tied down to schemes, thus limiting the scope for determining and addressing local priorities through a planning exercise. In this regard, CSSs pertaining to functions devolved to Panchayats now constitute the largest element of such tied funds.
5. Actual provision in State budgets also differs from the gross outlays communicated. Some States do not provide matching funds to Centrally Sponsored Schemes, reducing the actual flow of funds for such Schemes to local governments.
6. Planning is of poor quality and is generally a mere collection of schemes and works, many of the works suggested by elected panchayat members themselves is an ad-hoc manner.

Way ahead for District level Planning

1. The guidelines issued by the Planning Commission pertaining to the preparation of the plan for the district and the recommendations of the Expert Group regarding the planning process at the district level should be strictly implemented.
2. Each State Government should develop the methodology of participatory local level planning and provide such support as is necessary to institutionalise a regime of decentralised planning.
3. States may design a planning calendar prescribing the time limits within which each local body has to finalise its plan and send it to the next higher level, to facilitate the preparation of a comprehensive plan for the district
4. State Planning Boards should ensure that the district plans are integrated with the State plans that are prepared by them. It should be made mandatory for the States to prepare their development plans only after consolidating the plans of the local bodies. The National Planning Commission has to take the initiative in institutionalising this process.
5. For urban districts where town planning functions are being done by Development Authorities, these authorities should become the technical/planning arms of the DPCs and ultimately of the District Council.

Municipal Corporations and Municipalities raise their own resources from a variety of sources, as provided for in the respective municipal laws.

Their own revenue sources are income from

(i) taxes, (ii) fees and fines, and; (iii) earning from municipal enterprises like land, tanks, markets, shops, etc.

Besides these bodies receive grants from the State.

Property tax on land and buildings is the most important source of income of most urban local bodies. Other taxes levied by them are advertisement tax, professional tax etc. Octroi still remains an important source of income of municipalities in Western India.

Now, the trend is toward abolishing this tax as it obstructs the free flow of traffic on highways. Municipalities also charge fines for breach of municipal rules and regulations. From municipal shops and markets and rest houses, municipalities often earn considerable sum of revenue.

It is a general practice for States to give grants to their municipal bodies to improve their revenue position. State grants-in-aid may be on ad hoc basis; or, it can be on the basis of certain principles like size of population, slums concentration, location of town, etc.

Some of the taxes and rates collected by urban bodies are: Property Tax; Water tax for water supplied; Sewerage Tax, Fire Tax; Taxes on animals and vehicles; Theatre Tax; Duty on transfer of Property; Octroi Duty on certain items brought into the city; Education Cess (Tax); and Professional Tax.

Some other sources of income are fines and fees such as Fees on Tehbazari on takhats and chabutras (in market area); licence fees – on cycle rickshaw , bicycles etc.; rent from municipal shops; and fines imposed for violation of municipal by-laws.

Problems with Finances

One of the biggest problems which the urban local bodies face is the scarcity of finances. Their sources of income are inadequate when compared to their functions therefore putting pressure on them.

1. Lack of sources: As discussed above, their sources of income are varied. Yet, most of the income generating taxes are levied by the union and state governments and the taxes collected by the urban bodies are not sufficient to cover the expenses of services provided. ULB’s hesitate in imposing taxes because of the fear of backlash of the electorate. Further, the position of the smaller municipal institutions is much worse and at times they find it difficult to even meet their establishment costs.
2. Ill-equipped staff: The staff at the disposal of these bodies is ill-trained and ill-equipped to effectively collect the taxes levied.
3. Problems with property tax: With the abolition of Octroi by most States, Property Tax is the most important source of revenue for local governments. There have been substantial reforms in Property Tax administration in recent years. Earlier, ‘Annual Rental Value’ was the basis of levy of this tax. This mode of assessment had many drawbacks – the manner of assessment was opaque and gave a lot of discretion to assessing officials and it was inelastic and non-buoyant.
4. Smaller tax base: It is estimated that only about 60%-70% of the properties in urban areas are actually assessed. There are several reasons for low coverage. The boundaries of municipal bodies are not expanded to keep pace with the urban sprawl; as a result, a large number of properties fall outside the legal jurisdiction of the municipal bodies.
5. User charges: There has been a tendency to charge for various services at rates that are much lower than the actual cost of provisioning such services. These user charges include water charges, sanitation and sewerage charges, waste collection charges, charges for street lighting, fees for parking, fees for use of congested roads by motorists etc.

 Way Ahead with Finances

1. Creating a separate tax domain for local governments, by amending the Constitution, is not practicable. However, States should ensure that the law gives sufficient powers to the local bodies regarding taxes that are more appropriately collected at local levels.
2. Steps are already being taken under JNNURM for reforms of the property tax regime including use of GIS for the purposes of mapping of all properties in order to improve the efficiency of collection of property tax. Property tax details for all properties should be placed in the public domain to avoid any type of collusion between the assessing authorities.
3. Introduction of the new simplified and transparent system of taxation would definitely improve the collection efficiency. A periodic physical verification of the properties and taxes levied on them should be carried out in each municipal area by a separate wing directly under the control of the Chief Executive.
4. Octroi should be abolished, but the States should evolve mechanisms to compensate the local governments for the loss of revenue caused by such abolition.
5. An impact study should be carried out for all major developments in the city. A congestion charge and/or betterment levy in relation to such projects may be levied wherever warranted.
6. The power to impose fines for violation of civic laws should be given to municipal authorities. The relevant laws may be suitably modified

Parastatals are institutions/organizations, which are wholly or partially owned and managed by the government (either autonomous or quasi-governmental).

They may be formed either under specific State enactments or under the Societies Registration Act. These bodies are generally formed for delivery of specific services, implementation of specific schemes or programmes sponsored by the State/Union Government/international donor agencies.

Some of the important Parastatals are District Rural Development Agency (DRDA), District Health Society (DHS), District Water and Sanitation Committee (DWSC) and the Fish Farmers Development Agency (FFDA).

The most important Parastatal at the district level is the DRDA. Currently, the funds for most of the Centrally Sponsored Schemes; Sampoorna Grameen Rozgar Yojna (SGRY), Swarnjayanti Gram Swarozgar Yojna (SGSY), Indira Awaas Yojna (IAY) etc. are allotted to the DRDA from where it is distributed among implementing agencies at the block level. In many of these schemes, Panchayats, particularly Gram Panchayats, have implementational and monitoring responsibilities.

Several expert bodies have expressed the view that the Parastatals should not be allowed to undermine the functions and authority of the PRIs.

Some of the existing committees may need to be subsumed in the Panchayats and some of them may be restructured to have an organic relationship with them.

The Union and the State Governments should not normally set up special committees outside the PRIs.

However, if such specialised committees are required to be set-up because of professional or technical requirements, and if their activities coincide with those listed in the Eleventh Schedule, they should, either function under the overall supervision and guidance of the Panchayats or their relationship with the PRIs should be worked out in consultation with the concerned level of Panchayat.

Following the lead taken by Kerala, Karnataka and West Bengal, the DRDAs in other States also should be merged with the respective District Panchayats (Zila Parishad). Similar action should be taken for the District Water and Sanitation Committee (DWSC).

Background to PESA

PESA is a law enacted by Government of India to cover the “Scheduled Areas”, which are not covered in the 73rd Constitutional amendment.

This particular act extends the provisions of Part IX to the Scheduled Areas of the country. PESA brought powers further down to the Gram Sabha level.

The Gram Sabha in the Panchayat Act were entrusted with wide ranging powers starting from consultation on land acquisition to that of ownership over minor forest produces and leasing of minor minerals.

PESA became operative at a time when Indian economy was opening up all its frontiers to foreign direct investment. The mining sector, which is mostly located in the scheduled areas of the country where PESA operates, were made open to MNCs and the Indian Corporate sector for exploitation of mineral resources at a throwaway price.

One of the highlighting features of PESA is its suggestion that, every Gram Sabha shall be competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution.

It has further provided that the Gram Sabha or Panchayats at appropriate level shall have the following powers:

• To be consulted on matters of land acquisition and resettlement.
• Grant prospecting license for mining lease for minor minerals and concessions for such activities.
• Planning and management of minor water bodies.
• The power to enforce prohibition or to regulate or restrict the sale and consumption of any intoxicant.
• The ownership of minor forest produces.
• The power to prevent alienation of land and to restore any unlawfully alienated land of a scheduled tribe.
• The power to manage village markets.
• The power to exercise control over money lending to scheduled tribes.

While giving such wide-ranging powers to Gram Sabhas or Panchayats, PESA has further given an added responsibility to States that they may endow Panchayats with powers and authority as may be necessary to enable them to function as institutions of self-government.

It also contains safeguards to ensure that Panchayats at higher level do not assume the powers and authority of any Panchayats at the lower level or the Gram Sabha.

Problems with PESA

• Dilution of role of Tribal Advisory Councils: PESA comes under the Fifth Schedule, which mandates Tribal Advisory Councils to oversee tribal affairs and also gives extrajudicial, extra constitutional powers to the Governors of each State to intervene in matters where they see tribal autonomy being compromised.
• However, the councils, with the Chief Minister as their chairperson, have evolved into a non-assertive institution amid the machinations of upper-class politics, and its representatives hardly speak against the State governments’ policies.
• The Governors, in order to have friendly relations with the Chief Ministers, have desisted from getting involved in tribal matters. Tribal activists have constantly complained that there is not even a single instance where the Governors have responded to their petitions for interventions in threatening crises, such as deepening clashes over land, mining or police excesses.
• Lack of coordination at Centre: Even if one were to expect proactive intervention from the Centre, PESA would get entangled in bureaucratic shackles. Two different ministries, the Ministry of Panchayati Raj and the Ministry of Tribal Affairs, have an overlapping influence on the implementation of PESA and they function almost without any coordination.
• Lack of operationalization: In most of the state the enabling rules are not in place more than eight years after the adoption of the Act suggests that the state governments are reluctant to operationalize the PESA mandate.
• Ignoring the spirit of PESA: The state legislations have omitted some of the fundamental principles without which the spirit of PESA can never be realised. For instance, the premise in PESA that state legislations on Panchayats shall be in consonance with customary laws and among other things traditional management practices of community resources is ignored by most of the state laws.
• Ambiguous definitions: No legal definition of the terms like minor water bodies, minor minerals etc. exist in the statute books. The states in their conformity legislations have also not defined the term leading to ambiguity and scope of interpretation by the bureaucracy.

The Union Ministry of Panchayati Raj (MoPR) was established on 27 May 2004 to specifically look after the implementation of the provisions of the CAA and speed up the process of devolution to PRIs.

The Ministry has carried out various capacity-building programmes, conducted research and evaluations, and instituted reward schemes to promote devolution.

It has also organised ministerial and lower-level conferences to cajole state governments towards more devolution. Among these efforts, let us draw a roadmap for improving the performance of PRI’s in the country.

Some of the important aspects of this roadmap have been mentioned below:

1. Finances: Share of transfer to PRIs from the state government as untied grants should be increased and panchayats should be given the explicit right to levy and collect taxes in order to reduce their dependence on state and central governments.

• This devolution of funds should be linked with performance. In this regard let us also explore the importance and the idea of PEAIS or The Panchayat Empowerment and Accountability Incentive Scheme. This scheme has been designed to incentivize the states to empower panchayats and to put in place systems for bringing about transparency and accountability of PRIs.
• The performance of various states in this realm is measured through a Devolution Index (DI). Token awards are given to states in case they rank high on the Devolution Index.
• Besides, evaluation of states under PEAIS is based on two stage assessment.
• The first stage, called the Framework Criteria was based on the following four fundamental constitutional requirements i. Establishment of State Election Commission ii. Holding elections to the PRIs iii. Setting up of the SFCs iv. Formation of DPCs or District Planning Committees.
• States that fulfill these requirements become eligible for evaluation in terms of Devolution Index. Thus the indicators for DI help in assessing the state of devolution in respect of 3 Fs (Functions, Functionaries and Funds). However, DIs developed for PEAIS so far do not reflect the degree of Panchayat accountability and performance.

2.  Empowerment:Progressive devolution 3Fs to PRIs should be ensured. Reservation for women in the PRIs should be enhanced; PESA should be effectively implemented.

3. Accountability:The report recommends that the Gram Sabha should be given effective control over all the local institutions and functionaries and it should be empowered to approve all the plans, works, beneficiaries and utilization certificates. Moreover, the social audit should be mandated to the Gram Sabha for all major schemes. And Panchayat’s accounts, plans etc. should be put on-line in the public domain. The ministry hopes that the PRI regime will be provided a centre-stage in the developmental process during the 12th Plan period.

4. E-governance: Operationalizing e-Panchayat in a mission mode should be undertaken on a priority basis; ICT infrastructure and manpower should be provided to all Gram Panchayats, which should be connected to broadband; and other measures should be taken for penetrating e-governance system at the lowest level.

5. Decentralized Planning: Integrated bottom-up participatory plans should be implemented; sectoral plans should be integrated with district plans; technical and professional assistance should be provided for decentralized planning; appropriate training and capacity building of PRI representatives and functionaries should be undertaken.

Unscientific distribution of functions

The Panchayati Raj scheme is defective in so far as the distribution of functions between the structures at different levels has not been made along scientific lines.

The blending of development and local self-government functions has significantly curtailed the autonomy of the local self-government institutions. Again it has virtually converted them into governmental agencies. Even the functions assigned to the Panchayat and the Panchayat Samiti overlap, leading to confusion, duplication of efforts and shifting of responsibility.

Incompatible relation between the three-tiers

The three-tiers do not operate as functional authorities. The tendency on the part of the higher structure to treat the lower structure as its subordinate is markedly visible.

M.P. Sharma rightly observes the hierarchical domination and predominance, “fitters down step by step from Zila Parishads to Panchayat Samitis and from them to the Village Panchayats” Needless to state that this kind of mutual relationship is not in coherence with the genuine spirit of democratic decentralization.

Inadequate finances

The inadequacy of funds has also stood in the way of successful working of the Panchayati Raj. The Panchayati Raj bodies have limited powers in respect of imposing cesses and taxes. They have very little funds doled out to them by the State Government. Further, they are generally reluctant to raise necessary funds due to the fear of losing popularity with the masses.

Lack of cordial relations between officials and people

Introduction of the Panchayati Raj aimed at securing effective participation of the people. But in reality this hardly happens since the key administrative and technical positions are manned by the government officials. Generally there is lack of proper cooperation and coordination between the people and the officials like Block Development Officers, the District Officers etc. Again the officers fail to discharge the developmental duties more efficiently and sincerely.

Lack of conceptual clarity

There is lack of clarity in regard to the concept of Panchayati Raj itself and the objectives for which it stands. Some would treat it just as an administrative agency while some others look upon it as an extension of democracy at the grass roots level, and a few others consider it a charter of rural local government. What is all the more intriguing is the fact that all these conceptual images could co-exist simultaneously tending to militate against each other every now and then.

Undemocratic composition of various Panchayati Raj institutions

Various Panchayati Raj Institutions are constituted setting aside democratic norms and principles. The indirect election of most of the members to Panchayat Samiti only increases the possibility of corruption and bribery. Even the Zila Parishad consists of mainly ex-officio members. They are, for the most part, government officials. This negates sound democratic principles.

Disillusionment on structural-functional front

The performance of Panchayati Raj Institutions has been badly affected by political cum caste factionalism, rendering developmental projects into an illusion or dream. Corruption, inefficiency, scant regard for procedures, political interference in day to day administration, parochial loyalties, motivated actions, power concentration instead of true service mentality- all these have stood in the way of the success of Panchayati Raj.

Furthermore, the power to supersede the local bodies on the part of the State Government clearly violates the spirit of democratic decentralization.

Administrative Problem

The Panchayati Raj bodies experience several administrative problems like tendency towards politicization of the local administration, lack of co-ordination between the popular and bureaucratic elements, lack of proper incentives and promotion opportunities for administrative personnel and apathetic attitude of the government servants towards development programmes etc.

These administrative problems are again a major bar in the efficient and smooth functioning of Panchayati Raj.

Politicization of PRIs

It is being increasingly noticed that the Panchayati Raj Institutions are viewed only as organisational arms of political parties, especially of the ruling party in the state. The State Government, in most states, allows the Panchayati Raj Institutions to function only upon expediency rather than any commitment to the philosophy of democratic decentralisation.

Sources of Income of Panchayats

Panchayats can discharge their functions efficiently only if they have sufficient financial resources.

For resources, Panchayats depend mainly on grants from State Government. They also have taxation powers and have some income from owned or vested assets.

They may get a share in the taxes, duties, tolls and fees that are levied and collected by the State Government. Let us now see what financial resources Panchayats have, to perform their functions.

1. Gram Panchayat: In most States the power of levying taxes is vested in Gram Panchayats. House tax, tax on cattle, immovable property, commercial crops, drainage tax, sanitation fee, tax on produce sold in the village, a fee for supply of water to households, lighting tax are some of the taxes and fees levied by Panchayats. Panchayats can also levy entertainment tax on temporarily stationed theatres, taxes on animals and non-mechanically propelled vehicles. Gram Panchayats also receive funds as income from property owned by them as common grounds, jungles, cattle ground etc. The sales proceeds of dung refuse and carcasses (dead bodies of animals) are also retained by Gram Panchayats. They also receive their share in land revenue from the State.
2. Panchayat Samiti: Panchayat Samitis can impose tax on facilities provided by them as water for drinking or irrigation purposes, lighting arrangements, tolls for bridges maintained by them. The property of Panchayat Samitis includes public buildings, public roads constructed or maintained out of their funds and all land or other property transferred to them by the  Panchayats receive income from the property vested in them. They also receive grants from the State Governments. Funds are transferred by Zila Panchayats or State Governments along with schemes to be implemented by the intermediate institutions of Panchayati Raj.
3. Zila Parishad: Zila Parishads are also authorized to impose taxes. They may impose taxes on persons carrying on business in rural areas for six months, taxes on brokers, commission agents in markets established by them, also the tax on the sale of goods in these markets. Tax on land revenue can also be imposed by Zila Parishads. When development schemes are entrusted to them, necessary funds are also provided. They also receive grants from the State, donations from charitable institutions, and may also raise loans.

Problems with Finances of Panchayats

Across the country, States have not given adequate attention to fiscal empowerment of the Panchayats. Some of the issues associated with their finances are discussed below:

1. Heavy dependence on upper tiers of government: Panchayats are heavily dependent on government grant and internal resource generation at the panchayat level is weak. This is partly due to a thin tax domain and partly due to Panchayats’ own reluctance in collecting revenue.
2. Inflexibility of funds: A major portion of the grants both from Union as well as the State Governments is scheme specific and panchayats have limited discretion and flexibility in incurring expenditures in such schemes
3. Responsibilities do not match finances: In view of their own tight fiscal position, State Governments are not keen to devolve funds to panchayats. In most of the critical Eleventh Schedule matters like primary education, healthcare, water supply, sanitation and minor irrigation even now, it is the State Government which is directly responsible for implementation of these programmes and hence expenditure. Overall, a situation has been created where panchayats have responsibility but grossly inadequate resources.

Way ahead with Finances

1. Explore additional sources: In order to widen their tax base the PRIs will need to explore additional sources of revenue. Rural bodies need to look beyond the traditional areas of lands and buildings and augment their resources by operating in newly emerging sectors through innovative tax/non-tax measures e.g. fee on tourist vehicles, special amenities, restaurant, theatre, cyber café etc.
2. Incentivising Better Performance: The Ministry of Panchayati Raj has evolved a Panchayats Empowerment and Accountability Fund (PEAF) to incentivize both empowerments of the Panchayats by the States, on the one hand, and accountability on the part of the Panchayats to Gram/Ward Sabhas on the other.
3. Royalty from minerals: The role of State Governments should be limited to prescribing a band of rates for these taxes and levies. g. PRIs should be given a substantial share in the royalty from minerals collected by the State Government. This aspect should be considered by the SFCs while recommending grants to the PRIs.
4. Primary authority over taxation: In the tax domain assigned to PRIs, Village Panchayats must have primary authority over taxation. However, where such taxation has inter- Panchayat ramifications, the local government institutions at higher levels – Intermediate Panchayat and Zila Parishad could be given concurrent powers subject to a ceiling. Whenever a tax/fee is imposed by the higher tier, such taxes should be collected by the concerned Village Panchayats.

The Spirit of Republicanism is a prominent theme of the Swiss Constitution.

Another important feature of the Constitution is its federal features.

Switzerland is known for its direct democracy. It is hailed as a Dynamic Constitution (features like protection of individual, welfare state et al)

Comparison scheme w.r.t Indian Constitution

Institutions for Direct Democracy

1. Referendum: It means referring bills for ratification to the people. It is not similar to plebiscite. Plebiscite means taking the opinion of the people on any issue.
2. Initiative: It is a bill initiated by the people and people conveying it to the assembly.
3. Recall: It means calling the representative back at any point of time, if voters are not satisfied by his work.

Australia’s system of government is founded in the liberal democratic tradition.

Based on the values of religious tolerance, freedom of speech and association, and the rule of law, Australia’s institutions and practices of government reflect British and North American models. At the same time, they are uniquely Australian.

Australian federation is modeled on the US federation. For example, residuary powers are with the states, Governors of the states are elected by the people and formally appointed by the British Queen.

In Australia, there has been a growth of Cooperative Federalism.

Salient Features

• Form of Government

One of the oldest continuous democracies in the world, the Commonwealth of Australia was created in 1901, when the former British colonies—now the six states—agreed to federate. The democratic practices and principles that shaped the pre-federation colonial Parliaments (such as ‘one man, one vote’ and women’s suffrage) were adopted by Australia’s first federal government.

The Australian Constitution sets out the powers of government in three separate chapters—the legislature, the executive and the judiciary—but insists that members of the legislature must also be members of the executive. In practice, Parliament delegates wide regulatory powers to the executive.

The popularly elected Parliament consists of two chambers: the House of Representatives and the Senate. Ministers appointed from these Chambers conduct executive government, and policy decisions are made in Cabinet meetings.

Apart from the announcement of decisions, Cabinet discussions are not disclosed. Ministers are bound by the principle of Cabinet solidarity, which closely mirrors the British model of Cabinet government responsible to the Parliament.

Although, Australia is an independent nation, Queen Elizabeth II of Great Britain is also formally the Queen of Australia. The Queen appoints a Governor-General (on the advice of the elected Australian Government) to represent her. The Governor-General has wide powers, but by convention acts only on the advice of the ministers on virtually all matters.

• Nature of the Constitution

Like the United States, Australia has a written constitution. The Australian Constitution defines the responsibilities of the federal government, which include foreign relations, trade, defence and immigration.

Governments of the States and territories are responsible for all matters not assigned to the Commonwealth, and they too adhere to the principles of responsible government. In the States, the Queen is represented by a Governor for each State.

The High Court of Australia arbitrates on disputes between the Commonwealth and the states. Many of the court’s decisions have expanded the constitutional powers and responsibilities of the federal government.

• Procedure of Amendment

The Australian Constitution can be amended only with the approval of the electorate through a national referendum in which all adults on the electoral roll must participate. A bill containing the amendment must first be passed by both houses of Parliament, or, in certain limited circumstances, by only one House of Parliament.

Any constitutional change must be approved by a double majority—a national majority of electors as well as a majority of electors in a majority of the states (at least four of the six). Where any state or states are particularly affected by the subject of the referendum, a majority of voters in those states must also agree to the change. This is often referred to as the ‘triple majority’ rule.

The double majority provision makes alterations to the Constitution difficult. Since federation in 1901, only eight out of 44 proposals to amend the Constitution have been approved. Voters are generally reluctant to support what they perceive as increases in the power of the federal government. States and territories may also hold referendums.

Parliament

The government is formed in the House of Representatives by the party able to command a majority in that chamber. Minority parties often hold the balance of power in the Senate, which serves as a chamber of review for the decisions of the government. Senators are elected for six-year terms, and in an ordinary general election only half the senators face the voters.

In the Australian Parliament, questions can be asked without notice, and there is a strict alternation between Government and Opposition questions to ministers during the Question Time. The Opposition uses its questions to pursue the government. Government members give ministers a chance to put government policies and actions in a favourable light, or to pursue the Opposition.

Anything said in the Parliament can be reported fairly and accurately without fear of a suit for defamation. The rough-and-tumble of Parliamentary Question Time and debates is broadcast and widely reported. This has helped in establishing Australia’s reputation for robust public debate, and serves as an informal check on the executive power.

• Nature of Elections

A national general election must be held within three years of the first meeting of a new federal Parliament. The average life of Parliaments is about two-and-a-half years. In practice, general elections are held when the Governor-General agrees to a request from the Prime Minister, who selects the date of the election. The governing party has changed almost every five years on an average, since federation in 1901. The Liberal Party led a coalition with the longest hold on government—23 years—from 1949 to 1972. Prior to World War II, several governments lasted less than a year, but since 1945 there have been only seven changes in the government.

• Voting

For all citizens over the age of 18 it is compulsory to vote in the election of both federal and state governments, and failure to do so may result in fine or prosecution.

Relations between Levels of Government

State parliaments are subject to the national Constitution as well as their state constitutions. A federal law overrides any state law not consistent with it.

In practice, the two levels of government cooperate in many areas where states and territories are formally responsible, such as education, transport, health and law enforcement.

Income tax is levied federally, and debate between the levels of governments about access to revenue and duplication of expenditure functions is a perennial feature of Australian politics. Local government bodies are created by legislation at the state and territory level.

The Council of Australian Governments (COAG) is a forum to initiate, develop and implement national policy reforms requiring cooperative action between the three levels of government: national, state or territory, and local.

COAG comprises the Prime minister, State Premiers, Chief Ministers of the territories, and the President of the Australian Local Government Association.

Its objectives include dealing with major issues by cooperating on structural reform of government and on reforms to achieve an integrated, efficient national economy and a single national market.

In addition, Ministerial Councils (comprising national, state and territory ministers, and, where relevant, representatives of local government and of the governments of New Zealand and Papua New Guinea) meet regularly to develop and implement inter-governmental action in specific policy areas.

The Canadian Constitution encompasses a wide set of principles and values that govern key political relations in the Canadian society.

Salient Features

• Constitutional Monarchy

1. It is the central component of Canada’s constitutional framework.
2. The Constitution Act, 1867 states that executive government and authority in Canada is vested in the Canadian Monarchy (which Canada shares with Great Britain and some other former British colonies).
3. The British Queen is the formal head of the state. The Act further provides for the offices of the Governor General of Canada (at the federal level) and Lieutenant Governors (at the provincial level), recognized as the Monarch’s representatives in Canada.

It is important to note, however, that while the written constitution explicitly places executive authority in the hands of the Monarch and his/her representatives, the unwritten constitutional convention holds that this authority is actually exercised by the Prime Minister and his/her Cabinet.

Parliamentary Government

The Canadian Constitution also provides for a Parliamentary system of government. Features of Parliamentary Government as given in Constitution Act, 1867:

1. The Act established a federal Parliament, consisting of the Monarchy and two legislative chambers, the House of Commons (or Lower House) and the Senate (or Upper House).
2. The Act further states that the powers and authority of these legislative chambers are to be modeled upon those found in the British Parliament.

Further, the Act also established legislative chambers at the provincial level.

In addition to the written provisions of the Act, there also exist several unwritten constitution conventions that are fundamental to the operation of Canada’s parliamentary system.

These include executive dominance by the Prime Minister and the Cabinet (at the federal level) and by the Premier and the Cabinet (at the provincial level), as well as the practice of responsible government.

• The House of Commons

In the Canadian political system, the lower chamber is the House of Commons, which takes its name from the lower house in the British political system. The Commons consists of 308 members known as – like their British counterparts – Members of Parliament (MPs).

• Manner of Election

Members are elected by the first-past-the-post system (as in Britain) in each of the country’s electoral districts, which are colloquially known as ridings (known as ‘constituencies’ in Britain). Seats in the House of Commons are distributed roughly in proportion to the population of each province and territory, but some ridings are more populous than others and the Canadian constitution contains some special provisions regarding provincial representation.

• Term and Tenure

The maximum term of MPs is four years, but it is common for a general election to be called earlier.

• Powers

As in the British political model, the House of Commons is much the more powerful of the two chambers. Although all legislation has to be approved by both chambers, in practice the will of the elected House usually prevails over that of the appointed Senate. The processes and conventions of the Commons reflect very much those of its British namesake.

• The Senate

In the Canadian political system, the upper chamber is the Senate, which takes its name from the upper house in the American political system. The Senate consists of 105 members, appointed by the Governor-General on the advice of the Prime Minister. Seats are assigned on a regional basis, with each of the four major regions receiving 24 seats, and the remaining nine seats being assigned to smaller regions.

Federalism

The Constitution also provides for a federal system in Canada, meaning there are two key levels of government: the federal (or national) government and the provincial (or regional) governments. Canada is a federation with a strong Centre, wherein residuary powers lie with the Centre.

The Constitution Act, 1867 outlines specific powers and jurisdictions for each of these levels of government, such as what public policy fields each may legislate in, as well as how each level of the government may raise revenue. Over the years, these constitutional provisions have been further clarified and evolved by judicial decisions (first by the British Judicial Committee of the Privy Council, and later by the Supreme Court of Canada).

Changes in the nature of Canadian Federalism

There have also been several constitutional amendments that have had significant consequences for Canada’s federal system. Over the years there has been a shift towards giving greater powers to the states. For example, the Constitution Act, 1930, transferred ownership of natural resources in Western Canada from the federal government to the Western provinces. Another significant amendment was the Constitution Act, 1982, which committed the federal government and provinces to ensuring some level of economic and social equality between Canadian regions. This, in turn, has led to the development of the Equalization Program and the sharing of public funds between governments.

Judiciary

The Supreme Court of Canada is the highest court and final authority on civil, criminal and constitutional matters.

The court’s nine members are appointed by the Governor-General on the advice of the Prime Minister and the Minister of Justice. They serve until the age of 75. Each province operates its own individual court system. The country’s legal system is based mainly on English common law, but in the province of Québec, it is

Each province operates its own individual court system. The country’s legal system is based mainly on English common law, but in the province of Québec, it is modeled on French civil law.

Rights

The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada, which forms the first part of the Constitution Act, 1982.

The Charter guarantees certain political rights to Canadian citizens and civil rights of everyone in Canada.

The Charter applies to government laws and actions (including the laws and actions of federal, provincial, and municipal governments and public school boards), and sometimes to the common law, but not to private activity.

The courts, when confronted with violations of Charter rights, have struck down as unconstitutional, federal and provincial statutes and regulations in whole or in part.

Japan has a Parliamentary system of Government.

It has a constitutional Monarchy. King is more like a ‘Rubber stamp’ authority while PM is head of the Cabinet.

Election of the PM

PM is elected by both the Houses of Japanese Parliament (called Diet)

1. The two houses of the Diet are:

• House of Representatives; and
• House of Councillors

It is not enough for a person to be a leader of the majority party.

He has to be elected by both the houses of the Parliament. If no agreement is reached upon between the two houses on a candidate, then the matter is taken care of by a Joint Committee of both the houses.

The Committee gets 10 days to arrive at a decision. After 10 days, if an agreement cannot be reached, then the will of the lower house prevails.

A significant feature of Japanese Constitution is contained in Article 9.

Herein, Japan formally renounces the policy of war for the settlement of international disputes. However, it can keep forces for self-defence.

Germany is a federation and the residuary powers in Germany lie with the states. The states are referred to as ‘Landers’.

It has a Parliamentary form of Government, modeled on the British Parliamentary form. But it is not just a replicate of the system.

Germany is called as ‘Chancellor’s Democracy’. Chancellor is the PM.

President is the Constitutional Head.

Salient Features

• Chancellor’s Democracy

1. The Chancellor has a clear-cut superiority over other Ministers.
2. Chancellor Principle: Chancellor has a privilege to determine the broad policy and other ministers are expected to act as per these guidelines. While a minister works under these guidelines, he enjoys a lot of autonomy with respect to his department. This mechanism ensures the stability of the coalition government.

• Cabinet Principle

It comes into existence only when there is a dispute among different departments. In such a situation decision is taken collectively.

• Constructive Vote of No-Confidence

The motion of no-confidence against the Chancellor is permitted only when those bringing the notion can prove that they are in a position to form an alternative government. This is also to deal with the problems of Hung Assembly (Coalition Government).

Parliament

Germany has two houses:

1. The Bundestag: The lower house in the German political system is the Bundestag. Its members are elected for a four-year term. The method of election is known as Mixed Member Proportional Representation (MMPR), a more complicated system than First-Past-The-Post (FPTP), but one which gives a more proportional result (a variant of this system known as the additional member system is used for the Scottish Parliament and the Welsh Assembly).

Manner of Elections

Half of the members of the Bundestag are elected directly from 299 constituencies using the first-past the post method of election. The other half – another 299 – are elected from the list of the parties on the basis of each Land (the 16 regions that make up Germany). This means that each voter has two votes in the elections to the Bundestag:

1. The first vote allows voters to elect their local representatives to the Parliament and decides which candidates are sent to Parliament from the constituencies.
2. The second vote is cast for a party list and it is this second vote that determines the relative strengths of the parties represented in the Bundestag.

The 598 seats are only distributed among the parties that have gained more than 5% of the second votes or at least 3 direct mandates. Each of these parties is allocated seats in the Bundestag in proportion to the number of votes it has received.

Reason behind adopting the above Election System

This system is designed to block membership of the Bundestag to small, extremist parties. As a consequence, there are always a small number of parties with representation in the Bundestag.

Overhang Seat

In addition to the above, there are certain circumstances in which some candidates win what is known as an ‘Overhang Seat’, when the seats are being distributed. This situation occurs if a party has gained more direct mandates in a Land than it is entitled to, according to the results of the second vote, when it does not forfeit these mandates because all directly elected candidates are guaranteed a seat in the Bundestag.

Comparative analysis of Bundestag

One striking difference when comparing the Bundestag with the American Congress or the British House of Commons is the lack of time spent on serving constituents in Germany. This is so because:

1. Only 50% of Bundestag members are directly elected to represent a specific geographical district.
2. A serving constituency seems not to be perceived, either by the electorate or by the representatives, as a critical function of the legislator.

• There is also a practical constraint on the expansion of constituent service in the form of a limited personal staff of Bundestag members (especially compared to members of the US Congress).

The Bundesrat

The upper house in the German political system is the Bundesrat. At a first glance, the composition of the Bundesrat looks similar to other upper houses in federal states such as the US Congress, since the Bundestag is a body representing all the German Lander (or regional states).

However, there are two fundamental differences in the German system:

1. Its members are not elected (neither by popular vote nor by the State Parliaments). They are members of the State Cabinets, which appoint them and can remove them at any time. Normally, a state delegation is headed by the head of government in the Land, known in Germany as the Minister- President.
2. The States are not represented by an equal number of delegates, since the population of the respective state is a major factor in the allocation of votes (rather than delegates) to each particular Land. The vote allocation can be approximated as 2.01 + the square root of the Land’s population in millions with the additional limit of a maximum of six votes so that it is consistent with something called the Penrose method based on game theory. This means that the 16 states have between three and six delegates.

This unusual method of the composition provides for a total of 69 votes (not seats) in the Bundesrat. The State Cabinet may then appoint as many delegates as the state has voted, but is under no obligation to do so; it can restrict the state delegation even to one single delegate.

The number of members or delegates representing a particular Land does not matter formally since, in stark contrast to many other legislative bodies, the delegates to the Bundesrat from any one state are required to cast the votes of the state as a bloc (since the votes are not those of the respective delegate).

This means that in practice it is possible (and quite customary) that only one of the delegates (the Stimmführer or “leader of the votes” – normally the Minister-President) casts all the votes of the respective state, even if the other members of the delegation are present in the chamber.

Even with a full delegate appointment of 69, the Bundesrat is a much smaller body than the Bundestag with over 600 members. It is unusual for the two chambers of a bicameral system to be quite so unequal in size. But the Bundesrat has the power to veto a legislation that affects the powers of the states.