3 Institutional Design 2025 of the country of laudapur.pptx

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1. Institutional Design Federalism, Judiciary, & Administration

2. First Logic of Constitutional Design- Republicanism as “Home”, Fellowship, Oikos, Universitas Two animating principles of constitutional design (political obligation): democracy (liberalism) & rule of law ( republicanism ) 🡪 private person & public citizen. Third strain: scientism/ technocratic expertise : administrative-regulatory-departmentalism Risk-hedging as Checks & balances: Government as shelter, dam or wall to guard against excesses of human nature (tyranny & corruption). [ Aristotle; Machiavelli; Madison ] Splitting public offices to hedge against the risk of concentration of authority. Split & hedge against fundamental human nature of self-enrichment : prioritising private interest over public good. Fundamental types of unjust enrichment in politics: corruption and tyranny . Core difference between republicanism and monarchy (hereditary offices). The case of “ undischarged insolvent ” [Arts. 102 & 191]: leisure, utility, art, culture, and politics. Republican virtue/ good of balance realised through split & hedge 🡪 Problem of scaling Republicanism as rule of law : balancing human discretion with normative rules of public office. “ Countervailing power” : “ambition must be made to counteract ambition”. [ Madison, FEDERALIST #51 ] “ Public Office ”: open competition, minimum eligibility, rotational term-limits. [ Aristotle, POLITICS ]

3. Second Logic of Constitutional Design- Liberalism as “Machine”, Lever, Contract, Societas Coordination convention: Government as lever, machine or tool to support high scale goods and services. [ Locke, Rawls, Foucault ] 🡪 Market enterprise, commerce, private property. Operational scale as the core problem of institutional design. Government as “structure” ( potesta ) and “ infrastructure ” ( potentia ). [ Michael Mann, THE SOURCES OF SOCIAL POWER ] Government as administration of public services in hospitals, education, factory, prison and banks. [ Foucault, “governmentality”] Poverty welfare, social insurance, economic regulation. [ David Gardner ] Modern administrative-regulatory state more conducive to concepts of business-management, mechanical-electrical engineering. [ Edward Rubin ] Prevailing concepts popular due to aesthetic appeal & social nostalgia of ideals like liberty, equality, prosperity etc. “Conceptual narcotic ” to allay our distresses about late modernity. “ Microanalysis ” against reification : revealing actual pathways of institutional decision-making based upon methodological individualism . Branches vs. networks; power-discretion vs. authorization-supervision; democracy vs. interactive republic; legitimacy vs. compliance; law vs. policy; rights vs. claims; property vs. market allocations; Federalism to satisfy both logics of constitutional design. Dispersal of power centres to promote civil liberties & optimise administration.

4. Utilitarianism as Regulatory-Administrative State [ Bernard Williams ] “Utility”- positive appraisal of others’ desires-preferences → consumer behaviour & corporate ethics. Public health, public education, p ublic research, popular culture, standardization, certification, licensing, quotas etc. Welfare institutions: social insurance (contributory), social assistance (non-contributory), public services (health, education), social work (NGOs etc.), economic regulation. Foucauldian “ governmentality ”: Natural alliance between regulatory state, welfare state, public policy, management studies, statistics. Pastoral-elite relation : Beneficiaries’ constituency significantly more than moral agents, policymakers, legislators, experts, professors. “All utilitarian politics starts in benevolence (“salus populi ”)… gets accredited with sympathy (welfarism)… and passes them on to paternalism (regulatory state).” Benevolence is the animating spirit, though no prejudicial attachment to specific constituency 🡪 impartial- benevolent policy maker vs. selfish-gratifying citizen -consumer. Benevolence is not a mere amoral knowledge claim (technical expertise)- “we understand people’s wishes”- also displayed by a sadist . “Taking into oneself the world’s wants and sufferings (cosmopolitanism) … is a basic motivation of utilitarianism… It is the most ambitious of extant ethical theories.” Radical flattening/ equaliser : equal considerations for all prevalent preferences ranging from mere pleasures to high ideals . [ JS Mill’s virtue-based rejoinder in “Pig vs. Socrates ” comparison ] Utilitarian hedonism as the metric of commensurable quantitative public policy . [ Bentham & Sidgwick ] Radically democratic and easily amenable to regulatory-administrative authority.

5. Contractarianism/ Deontology [ Kant, Rawls ] “Moral wrong as any action prohibited by a system of rules constituted as reasonable contract - informed and unforced general agreement.” [ TM Scanlon ] 🡪 Morality = rules-system + consent + non-coercion. Deontology-Republicanism interface : institutional hedging, individual’s dignity, promise-fidelity, atomic-abstracted individual, probability-risks. Contractarian morality procedural/ process-centric : fundamental equality of rationality in transacting agents. Utilitarian consequentialism dichotomizes moral relation into benefactor-beneficiaries, expert-citizen. Most societal problems are forced to be some agent’s moral obligation . [Vision of accountability in social sciences] No limits on consequentialist welfare → eternally progressive-Whiggish doctrine of social sciences. Rawls’ major correction on the unbounded progressivism of utilitarianism and welfare state. First principles of institutional design rather than individual’s moral conduct. [Kantian contract + utilitarian pursuits] Fair design involves a fair contract : participate without knowledge of their peculiar advantages . ( Original position under veil of ignorance ) [Hypothetical baseline- theoretical] Anti-Whiggish axiom: Liberty optimization compatible with equality of such liberty. [ Rousseau’s Social Contract] Liberalism’s thin commitments : a-historical, a-social, analytical, axiomatic, definitional, Kantian universalism. Greatest benefit of the least advantaged + fair equality of opportunity to offices and positions.

6. Federalism as Practical Reason Why gather? 🡪 to attain self-sufficiency, eg. family, friendship, village, city, state, market, religion etc; [ Aristotle, POLITICS ] Federalism: “Mode of political organization which unites separate states within an overarching political system to allow each to maintain its own fundamental political integrity .” [Encyclopaedia Britannica] Federalism as territorial allocation of governing authority- using land as the basis/ site of rulership and administration; (Union, states, union territories, districts, tehsils etc.) Dispersal of power centres to promote civil liberties & optimise administration. Territoriality; [Part I] Division of legislative powers- enumerated powers; [Part XI: Ch. 1 + Scd. 7] Division of executive powers- Union directives, emergency [Part XI: Ch. 2 + Art. 355 + Art. 356 + Art. 365] Normative values/ qualities- coordination convention- team play- rules + goals; [ SR Bommai v. UoI , 1994 SC ] regime of liberties- checks & balances + localised representation [Republicanism] Agency & identity: regional identity/ asymmetric federalism [Part XXI; Scd. 5 & 6]

7. Gandhian Panchayat Model Three revolutions : political + social + economic [ Granville Austin ] Democratic institutions, electoral franchise, transformative constitutionalism, scientific and planned development of agriculture and industries. Political argument: non-violence requires decentralisation of authority, with self-governing and self-sufficient village communities. [ Shriman Narayan Agarwal ] Political parties redundant or highly diffused and decentralised. Gandhian model of panchayat and cottage industries . Each panchayat as unit 🡪 2 or more panchayats with one elected leader. Indirect elections for provincial and national leadership through panchayat leaders. Panchayats to regulate watchmen, tax collectors, police, schools, irrigation, cottage industries etc.

8. Parliamentary Model Decentralisation to be achieved at Centre-states level through federalism . Panchayats to exercise limited administrative functions under state governments. Congress conceived the historical demand of self-rule under the Parliamentary model. The villager was in direct political relation with the central and state governments. Post WW-II: democracy’s stock very high in struggle against Nazis and Fascists. Fabianism (welfarism) and socialism dominant ideology under Nehru’s leadership of the Congress. Immediate need for concerted authority : famines, riots, partition, migration, poverty, economic crisis etc. Led to economic, strategic and ideological turn to centralisation of authority.

9. Cabinet form of Government Historical evolution of the House of Commons under party-based system as the pre-eminent political authority; Historical transformation of “Privy Council” to modern executive cabinet. 16 th to mid-17 th century: dominance of the Crown & its Privy Council “counsellors” ; 18 th -mid 19 th century: radical transition to Parliamentary authority ; late 19 th century: gradual transition to ministerial cabinet-based authority; Cabinet authority under parliamentary democracy All initiative of legislation & administration in the Cabinet. (formal v. efficient cause) Author 🡨🡪 Critic 🡨🡪 Editor analogy; [ Stephen Laws] Initiation, administration and execution of legislative policy; Hyphen or buckle analogy; [ Ram Jawaya Kapur vs. St. of Punjab (SC 1955)]

10. Cabinet form of Government Three doctrines of parliamentary government: aid & advice; doctrine of pleasure; collective responsibility; “Aid & advice”: relation between President & Council of Ministers [Art. 74, 163] No two legal sources of political authority; Residuary, moral and charismatic authority of President in moments of constitutional crisis. Doctrine of pleasure [Art. 75(2), 163(1)]: Appointments, dismissals, transfers of ministers and public officials. “Pleasure” mediated by aid & advice. Collective responsibility [Art. 75(3), 163(2)]: Term relation of executive government with the Lower House of legislature. Westminster vs. Presidential; Concerted action : team play & organised unit facing the external entities, like people, media, courts etc.

11. Judicial Independence & Accountability Dual meaning of “independence”: external (institutional) & internal (integrity & virtue) Institutional Autonomy Financial autonomy; [Arts. 125, 146, 221 & 229] salaries-allowances shall not be varied to disadvantage, except under Financial Emergency [Art. 360] Judicial expenses charged upon Consolidated Fund, not subject to legislative vote. Administrative autonomy; [Arts. 121 & 211] Official conduct of Judge shall not be discussed in legislature, except during impeachment. Recruit own staff and determine rules for service conditions. Security of tenure; [Arts. 124 & 217] Appointments-transfers strictly constitutional Insulation (institutional) & Integrity (ethics) Institutional independence: relation with other constitutional institutions 🡨 🡪 individual independence: character-based personal conduct. [ Chelameswar, J , NJAC case] Bangalore Declaration on Judicial Values [1988]- independence, integrity, impartiality, propriety, equality, competence, diligence. “Seven sins of Indian judges”; [ Ruma Pal ]- contempt suppression of public criticism; hypocrisy on common standards; secrecy on assets, appointments; plagiarism-prolixity ; indiscipline; intellectual dishonesty on stare decisis ; nepotism-favouritism .

12. NJAC ( FOURTH JUDGES’ CASE ) Majority’s basic structure argument : constitutionalism & democracy as BSD; constitutionalism & democracy through judicial independence; judicial independence (appointment & transfer matters) as BSD; appointment & transfer as collegium 🡪 collegium as BSD; Basic Structure doctrine vs. clause-bound literalism; Structural first principles vs. technical isolated clauses; Judiciary’s non-exclusivity as the promoter of liberties & democracy; Judicial primacy (collegium) in appointment NOT integral of independence; Judicial primacy as basic structure: insufficient bases in constitutional history, comparative law and political theory ; Collegium’s status as BSD is a “ doctrinal heresy ”;