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Shalini Shukla

LLM from Lucknow university

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“I think it is agreed that our constitution notwithstanding the many provision contained in it whereby the centre has been given powers to override the provinces (States) nonetheless, is a Federal Constitution”

Dr. B.R. Ambedkar

 

Introduction

In a system of multi-level governance, operating essentially in a federal frame work, like that of India, harmonious relations between the Centre and the States are critical for the stability, security and economic development of the country. While delineating the sphere of governance for the two levels of government, our Founding Fathers had opted for a ‘Union of States’ with a strong Centre to make sure that the country did not have to suffer any challenge to its integrity again. Provisions such as, according primacy to laws passed by Parliament over State laws, keeping residuary powers with the Centre and imposition of emergency rule by the centre in extreme situations were incorporated as essential elements of the Constitution, but these provisions are often misused by central government, which have lost the faith and trust of state government. Our constitution uses the term union not the centre .The day is bound to come when the state will repudiate the wrongful subjection by the union and will awaken to claim their legitimate status under the constitution .The constitution provides for a co-operative federation of states with the bias in favor of centre.

 

CONSTITUTIONAL PROVISION OF CENTRE – STATE RELATIONS

Relations between the Union and States can be studied under the following heads;

Legislative Relations-

Distribution of legislative powers described in the VII Schedule of Indian Constitution

• Union List – Only Union Parliament is empowered to make laws on the subjects given in the Union List. 98 subjects (after 42nd Constitution Amendment Act,1976) (few important subjects listed below)

Defense, Foreign Relations, Post and Telegraph, International War and Peace, International Trade, Commerce, Citizenship, Coinage, Railway, Reserve Bank, International Debt, Atomic Energy, etc..

• State List – Only State Legislature is empowered to make laws on the subjects given in the State List. 62 subjects (after 42nd Constitutional Amendment Act,1976) (few important subjects listed below) Public Health, Roads, Agriculture, Irrigation, Prisons, Local Administration, Distribution of Water, Police, etc..

• Exception : In the case of Emergency, Union Parliament automatically grabs the power of legislation on the subjects given in the State List

• Concurrent List – Both, Union Parliament as well as State Legislatures, have the power of legislation on subjects given in the Concurrent List. 52 subjects (After the 42nd Constitutional Amendment Act, 1942) (few important subjects listed below) Marriage, Divorce, News Papers, Trade Unions, Books, Press, Eatable Items, etc..

• In case of disagreement, the legislation passed by Union Parliament shall prevail over the law passed by State Legislatures.

• Residuary Powers: Article 248, Union Parliament shall make laws over the subjects not included in the above given lists.

Union Parliament’s Power to Legislate on the Subjects given in the State List

 

• On the basis of the resolution passed by the Council of State – Article 249 , 2/3 majority, Issues of National Interest

• On the request of two or more state legislatures – Article 252 , Law passed by Union Parliament shall be applicable only to the states which demanded such legislation.

• For the enforcement of International Treaties and Agreements – Article 253

• Prior approval of President of India on certain Bills – Article 304

• Supremacy of Union Parliament during National Emergency – Article 352

• During Constitutional Emergency – Article 356

• Supremacy of Union Parliament over Concurrent List

• Residuary Powers are under the control of Union Parliament – Article 248

• Power of Union Parliament to abolish State Legislative Council – Article 169

 

Administrative Relations

• State’s responsibility about the use of their executive powers – Article 256

• Responsibility of the construction and maintenance of means of communication – Article 257

• Responsibility of the protection of Railways – Article 257

• Appointment of Governors by Centre – Article 155

• Influence of Centre during National Emergency – Article 252

• Influence of Centre during Constitutional Emergency – Article 356

• To solve disputes regarding the distribution of water of inter – state rivers – Article 262

• Protection of Federal property in the states

• All India Services – Article 312

• To establish Inter – State Council – Article 263

• Direction for the welfare of Scheduled Tribes Governor’s discretionary power – Assam & Nagaland

 

(c) Financial Relations –

• Sources of revenue of Union Government

1. Custom and Export Duty

2. Income Tax

3. Corporation Tax

4. Estate Duty (Excluding Agriculture)

5. Excise Duty on Tobacco and other intoxicants

6. Succession Duty (Excluding Agriculture)

7. Inter – State Trade Tax, etc..

Sources of Revenue of State Governments

Taxes on agriculture, House Tax, Tax on Electricity, Toll Tax, Entertainment Tax, Tax on Boats, Tax on Vehicles, Tax on cattle and house-hold animals, Tax on Minerals, etc..

• Grants to the States – Article 275

• Appointment of Finance Commission – Article 280

• Financial Emergency – Article 360

• Provision of Comptroller and Auditor General

 

Historical background

The framework of Centre-State relationship had worked fairly smoothly till mid-sixties and the institutions created under or inspired by the Constitution for this purpose enjoyed complete trust and respect of all concerned. This harmonious functioning was, perhaps, possible because this period was characterized by, by and large, a single party that is the Congress Party, domination of the Governments both at the Centre and in most of the States. As such, the Centre-State relations were not really put to any severe test during this period. Whatever differences or occasional conflicts arose, were endeavored for mitigation and resolution, not as between two different Governments but more between two entities of the same system. In a way this process was facilitated by the fact that the first Prime Minister, Pandit Jawaharlal Nehru (1947-64) was an iconic figure in the Indian polity and through his persona was able to wield considerable equation and personal authority with the State Governments. Thus political process and not the Constitutional machinery played a major part in Centre-State relationship during this period. Pt. Nehru, however, had absolutely no doubt whatsoever on the future of the Indian federal system and how the same had been envisioned in the Constitution. while speaking in 1954, on the Constitution (Fourth Amendment) Bill, the main object of which was the Amendment of Articles 31, 31A and 305 of, and the Ninth Schedule to, the Constitution, he had clearly indicated his vision on working of the Government and the administrative and other structures of the country, stating :

“After all, the Constitution is meant to facilitate the working of the Government and the administrative and other structures of this country. It is meant to be not something that is static and which has a static form in a changing world, but something which has something dynamic in it, which takes cognizance of the dynamic nature of modern conditions, modern society”.

The year 1967, however, proved to be a watershed in the history of independent India when, perhaps, for the first time the Centre-State relations were put to a test. The General Elections in 1967 were followed by the formation of non-Congress Governments

in a number of States, which included Bihar, Haryana, Kerala, Madhya Pradesh, Orissa, Tamil Nadu (Madras), Uttar Pradesh and West Bengal. Simultaneously, it was also the beginning of a period when coalition politics started at State level. The coalition

Governments were formed in many States, which included Bihar, Haryana, Kerala, Madhya Pradesh, Orissa, Uttar Pradesh and West Bengal. This was the time when certain issues of importance pertaining to Centre-State relations came into the fore both in the form of criticism of the functioning of existing mechanisms and processes as also because the regional political parties wanted to create their own niche in their respective regions. There were wide spread demands for providing greater autonomy for the States in their functioning particularly from non-Congress and other regional party led Governments. With the Congress Party having lost its political control in several parts of the country, the devices used earlier in maintaining harmonious Centre-State relationship could no longer be put to work. The subject acquired such a dimension as to be considered of sufficient importance to find a place in the Address of the then President, Dr. S. Radhakrishnan, to the Parliament on March 18, 1967. The President, while addressing the Joint Session of Parliament, observed:

“For the first time since Independence, governments of political complexions different from that of the government at the Centre have been formed in several States. In a federal democratic polity, this is to be expected. Our Constitution has provisions defining and regulating the relationship between the Union and the States and their mutual obligations. Further, over the years we have developed certain institutions for promoting cooperation, understanding and harmonious relations between the Union and the States, between one State and another. The National developmental Council, the Zonal Councils and the periodic Conferences of the Governors and Chief Ministers are conspicuous examples of this nature. The Union Government will respect the constitutional provisions in letter and spirit without any discrimination and endeavour to strengthen the arrangements for a co-operative approach to national problems. We are sure that all the States will extend their cooperation in serving these institutions and making their deliberations increasingly fruitful and beneficial both to the Union and to themselves. Strengthening the unity of the country, safeguarding security, preserving democratic institutions, and promoting economic development and the well-being and happiness of our people are the common objectives towards which the Union and the States must strive together”.

Co-existence through healthy relationship between the Centre and the States became a matter of the primary importance during this period, with the then Prime Minister, Smt. Indira Gandhi, noting the importance of working of a “more vigorous practicing federalism (in governance) with multiple parties and coalitions in power”. The “more vigorous practicing federalism”, articulated by Smt. Gandhi in 1967, however, underwent a change after the Parliamentary Elections in 1971. The huge success of the Congress Party in General Elections of 1971 was followed by even bigger success in the Assembly Elections that took place in 1972. With two-thirds majority in the Parliament and with the benefit of the “same party rule” in almost all the states, the same Prime Minister observed in 1972 that it was necessary that the state Governments should be “in tune with the government at the Centre, accept its policies and be willing to implement its programme”. These observations although brought in critical reactions, but at the same time set the tone for greater centralization of powers. The 42nd Amendment was passed during this period in the year 1976 which substantially altered the original character of the Constitution, leading it towards greater centralization of powers with Government of India. Many political historians, including R.C.S. Sarkar in his book “Union-State Relations in India”, have observed that over centralization of powers in the hands of Union Government was one of the major reasons that resulted in the ouster of the Congress Party in 1977 General Elections both at the Centre as well as in a large number of States. The Janata Party that came into power at the Centre in the post-emergency period in 1977, however, was a coalition essentially of the parties that were opposed to the Congress Party led by Smt. Indira Gandhi and the imposition of emergency, though not carrying the same and in many cases totally different political ideologies. At the same time with a host of non-Congress Governments in the States, there was obvious clamour and demand for greater autonomy for the States. Besides, several issues germane to 42nd Amendment were the subject matter of expression of opinion by a number of jurists, parliamentarians, editors and professional bodies. One of the significant suggestions uniformly made at that time was to provide for measures against the misuse of the Emergency provisions and to put the right to life and liberty on a secure footing. This and various other imbalances caused by some of the provisions of 42nd Amendment in the Constitution were corrected through the 44th Amendment, which was passed in the year 1978. However, with a weak coalition at the Centre and with its constituents coming from totally different political backgrounds, the Janata Party regime proved a short lived one and the people once again voted the Congress Party to power in 1980 at the Centre with a very large majority. Nevertheless, non-Congress coalitions continued in a large number of States till 1982 Assembly Elections, including in the North-East, giving strength to the forces of regionalism, resulting in the growth of a large number of regional parties. Non-Congress Governments in the States also started putting up a united front, demanding more administrative and fiscal autonomy. Around the same time, there were fissiparous forces at play in different parts of the country, seeking establishment of their own autonomous entities. Earlier in 1969, the Administrative Reforms Commission, constituted by the Government of India, had submitted its report, substantial parts of which had focused on the steps to be taken for maintaining harmonious Centre-State relations. The Rajamannar Committee, appointed by the Government of Tamil Nadu, likewise had given its report in 1971, recommending greater autonomy for the States basically in legislative and fiscal matters. The Shiromani Akali Dal in Punjab, the Telugu Desam Party in Andhra Pradesh, the State Governments of West Bengal, Tamil Nadu and the North-East had all been demanding review of the overall Constitutional scheme of Centre-State relations. Simultaneously, the demand for total autonomy of Jammu & Kashmir by some elements was also being voiced. This situation prompted the then Prime Minister, Smt. Indira Gandhi, to announce in the Parliament on March 24, 1983, the constitution of the first Commission on Centre-State Relations, to be headed by Justice R.S. Sarkaria, a retired Judge of the Supreme Court of India.

 

CRITICAL EVALUATION OF CENTRE – STATE RELATIONS :

 1. APPOINTMENT OF GOVERNOR

Article 153 says that there has to be governor of each state .Article 155 says the governor is appointed by the president .According to article 156 he holds office during the pleasure of president. In the case of HARGOVIND PANT VS.DR. RAGHUKUL TILAK & ORS held that the relationship of employer and employee does not exist between the government of India and the governor .Governor’s office is not subordinate to the government of India. In practice the governor has been reduced to virtually the same position as that of the president agent in the native state in the days of British raj, several governors have abused their high office to fulfill the partisan objectives of the political parties at the centre .Rajamannar committee has made the following recommendation.

• The governor should be appointed always in consultation with the state cabinet.

• Governor should be rendered ineligible for a second term of office as the governor or any other office under government.

• He should not be liable to removal except for proved misbehavior or incapacity after inquiry by Supreme Court.

• Specific instrument should be inserted in the constitution enabling the president to issue instrument of instruction to the governors.

Thus It is necessary to invest the office of the Governor with the requisite independence of action and to rid them of the bane of ‘instructions’ from the Central Government. It is necessary to make him the Governor of the State in its full and proper sense and to enable him to live up to his oath truthfully. His loyalty must be to the Constitution and to none else and his commitment to the well-being of the people of his State. He must command respect by his conduct

 

2. .PRESIDENTS ASSENT TO THE STATE BILLS

A bill passed by the state legislature is presented to the governor and the governor has to declare that he assents to bill or he withholds assents or that he reserves the bill for consideration of the president .The president may direct the governor to return the bill to the state legislature with the massage requesting reconsideration of the bill and if it is again passed by the state legislature with or without amendment ,it is presented once again more to the president for his consideration ,but in no way president is bound to give the assent .

The governor is expected by the constitution to reserve only such bills for the president ,s assent as are patently unconstitutional or palpably against the national interest .In practice ,governors have been known to surrender their judgment and act as the deferential subordinates of the central government in exercising their extraordinary power . The Raja manner committee recommended repeal of that provision which permits the governor to reserve any bill for consideration of the president; however this power may be usefully retained, if its indiscriminate use can be checked by some machinery.

 

FINANCIAL RELATION

Any fair minded and impartial observer can have no doubt that having regard to the growing responsibility of the states the distribution of taxes and revenues is very unfair to the states too favorable to the centre. Taxes on income are levied and collected by the government of India and distributed between the union and states ., but the expression taxes on income does not include corporation taxes .Corporation tax means tax on income which is payable by the companies and for which no credit is given to the shareholders who receive dividends from the companies .As a result of changes made by the Finance Act 1959, all income tax paid by the limited companies must now be treated as corporation tax and consequently the states are not entitled to any share of it .

Union duties of excise may be shared between the union and states but” if only parliament by law so provides “ .The chairman of the 4 th finance commission referred to the possibility of making a constitutional amendment placing excise duties on the same footing as income tax ,that is making excise duties also divisible between the union and states .Even when a tax or duties is compulsorily divisible between the centre and states, the union has the right to levy a surcharge, on income tax exclusively for the purpose of the union .States must be given a legal right to larger share in the tax revenues collected by the centre instead of having a rely upon the discretionary largess of the union under article 282.

The scheme of allocation of centre –state taxing power though designed with many considerations in view –convenience ,simplicity , economy, and uniformity ,yet fails to create an equilibrium between responsibilities and resources at the state level .Most of the lucrative sources of taxation lie with the centre .Moreover ,the centre has whole country to tap and can tax the taxing capacity existing anywhere in India .On the other hand ,while the fiscal needs of states are huge ,because of their responsibility to provide for development ,welfare and social service activity like education housing, health, agriculture etc., for which there is insatiable demand in the country, their revenue raising capacity is cabined due to many reasons ,some of which are ;

1. the economic condition prevailing with in their boundaries ;

2. the fact that they have to share their taxing powers with the local governments ; and, by their taxing power being somewhat inelastic

 

EXTRA CONSTITUTIONAL AUTHORITY

Among the extra constitutional authorities the planning commission takes the palm. “Economic and social is in the concurrent list”, but in no law has been ended till now chairman of the fourth finance commission in the supplementary not described it as quasi political body .Doctor subba rao was of the opinion that the planning commission function in the violation of the provision of the constitution. The centre through planning commission controlled not only the state sector of the plan but also their implementation..

Rajamannar committee was of the view that “the centre is able to impose its will on the states in the formulation and execution of the plans by virtue non statutory grants under article 282 of the constitution, which are dependant on the absolute discretion of the centre .It will be thus seen that the process of planning and the activities of the planning commission have a very deleterious effect on the autonomy of the states..”

The above quoted words of criticism are fully justified .Today there are 2 types of grant made by the centre the states.

1. grant in aid by the revenues of the states as commended by the finance commission

2. Discretionary grant by the central government

Which are usually made in accordance with the recommendations of planning commission . Of the total grants ,disbursed by the centre to the states only 30% is s per the recommendation .while the remaining 70%represents discretionary grants given to the states on the advise of planning commission .To remove this distortion of the constitutional scheme .it is necessary that even discretionary grants under article 282 should be dealt with by a constitutional authority like the finance commission and not by planning commission.

 

THE ONLY LASTING SOLUTION

Those who are in favor of major constitution amendment to redefine between the centre and the states must come to terms with one profound truth. The only satisfactory and lasting solution of the vexed problem is to be found not in the statute book but in conscience of men in power .The long suffering states can be redress not by change of law by chance of heart.

We must get away from fallacy of legal solubility of all problem .In constitution equilibrium can be mandated only by obedience to the inforceable.We must get away from fallacy of legal solubility of all problems .In our constitution what is left unsaid is important as what is said.

 

Recommendations of Sarkaria Commission

The first Commission in all made 247 recommendations on different areas of Centre-State Relations which were given due and detailed consideration by the Government. Of these 247, 179 recommendations were accepted while some are still under examination. Some of the important recommendations which have been accepted and implemented pertain to the role of the Governor, the constitution of Inter- Governmental Council and strengthening of the Local-self Governing Bodies. On the Role of Governor, the Commission made a number of important recommendations on selection, appointment, tenure and discretionary powers of the Governors, guiding principles for the Governors in choosing Chief Ministers and functioning of the State Legislatures. The Commission recommended that in order to ensure effective consultation with the State Chief Minister in selection of a person to be appointed as Governor, the procedure of consultation should be prescribed in the Constitution itself by suitably amending Article 155. While the Union Government has not agreed to amend the Constitution in this regard, it is of the view that the practice of prior consultation with State Chief Ministers should be continued as a matter of convention and not as a matter of obligation. The Commission also recommended a number of criteria for making appointment of Governors, majority of which have been accepted by the Union Government. The Union Government has also accepted the Commission’s guiding principles relating to the choosing of the Chief Ministers, and the functioning of the State Legislature. Dwelling on Article 263 of the Constitution, which envisages establishment of an institutional mechanism to facilitate coordination of policies and their implementation by the Union and the State Governments, the Commission recommended that a permanent Inter-State Council called the Inter-Governmental Council (IGC) should be set up under Article 263. In pursuance of this recommendation, the Union Government had set up the Inter-State Council, under the provisions of Article 263 of the Constitution, in the year 1990. The Commission also recommended that the local self-governing bodies need to be significantly strengthened both financially and functionally, and recommended enactment of a Parliamentary law uniformly applicable throughout India containing provisions analogous to Articles 172 and 174 of the Constitution. The Union Government accepted the recommendations and more specific provisions have been made in the Constitution through the 73rd and 74th Constitutional Amendment Acts, which confer Constitutional status on Panchayati Raj Institutions as well as Municipalities and District Planning Committees. Provisions have also been made for setting up of Finance Commissions to review the financial position of these bodies and to make recommendation to the State governments for devolution of resources. Some of the other major recommendations made by the Sarkaria Commission which have been accepted by the Government are: (i) that prior consultation with the States, individually and collectively, in respect of overlapping and concurrent jurisdictions, should be adhered to, except in rare and exceptional cases of extreme urgency or emergency, though it may not be necessary to make such consultation a matter of constitutional obligation; (ii) that ordinarily, the Union should occupy only that much field of a concurrent subject on which uniformity of policy and action is essential in the larger interest of the Nation, leaving the rest and the details for action by the States within the broader framework of the policy laid down in the Union law; (iii) that Article 356 should be used very sparingly, in extreme cases and only as a matter of last resort; and (iv) that the net proceeds of corporation tax may be made permissibly shareable with the States by an appropriate amendment of the Constitution Such Articles will never be called into operation and that they would remain a dead letter

President ‘s Rule: Limits & checks

The Governor of Karnataka, H.R. Bhardwaj, put the Government of India in a most embarrassing position by recommending imposition of President’s Rule in the State. In the process, he exposed, once again, his unfitness for the office he holds.

The rejection of his recommendation means that his prestige, none too high at any time, will suffer a terrible blow. Had the recommendation been accepted, it would have landed not only the Government of India but also the President in a most embarrassing situation in the Supreme Court. The court would be entitled to examine the material on the basis of which the Council of Ministers advised the President, and the onus of justifying the reckless action would not be on the petitioners but on the Union of India.

A nine-member Bench of the Supreme Court definitely construed the scope of Article 356 of the Constitution, which empowers the imposition of President’s Rule in the States, in the famous case of S.R. Bommai and others vs. Union of India and others It went beyond State of Rajasthan vs. Union of India on the scope of judicial review. The President, who is sworn to uphold the Constitution and the law of India, can be fully trusted to follow this ruling whenever a draft proclamation imposing President’s Rule in any State is presented for his/her signature by the Union Council of Ministers. The Prime Minister and the other Ministers, who have also taken the oath to abide by the Constitution, would also appreciate the stringent conditions the court’s ruling in the Bommai case has imposed for the exercise of power under Article 356. The court decided the case on March 11, 1994. But the detailed implications of that ruling have yet to seep in. The ruling was followed by a verdict by a five-member Bench in the Bihar case Rameshwar Prasad vs. Union of India . In both cases, the test of a vote by the Assembly in cases of disputed majority was approved.

It must be borne in mind that the court’s ruling in the Bommai case, which remains definitive, came in the wake of deep, persistent public disquiet on the abuse of Article 356, a fact that is now universally admitted. The commission on Centre-State relations, headed by Justice R.S. Sarkaria, noted in its report, submitted in 1988, the deep resentment that the abuse of this provision caused among the States. The States were treated under the Constitution with less consideration and less respect than a municipality. The Supreme Court ruled (in New Delhi Municipal Committee vs Union of India) that a municipal body cannot be superseded, without notice (S.L. Kapoor vs. Jag Mohan The court said:

“A committee so soon as it is constituted, at once assumes a certain office and status, is endowed with certain rights and burdened with certain responsibilities, all of a nature commanding respectful regard from the public. To be stripped of the office and status, to be deprived of the rights, to be removed from the responsibilities, in an unceremonious way as to suffer in public esteem, is certainly to visit the committee with civil consequences. In our opinion the status and office and the rights and responsibilities to which we have referred and the expectation of the committee to serve its full term of office would certainly create sufficient interest in the municipal committee and their loss, if superseded, would entail civil consequences so as to justify an insistence upon the observance of the principles of natural justice before an order of suppression is passed.”

The order of supersession was held to be “vitiated by the failure to observe the principles of natural justice”. The judgment was delivered on September 18, 1980. The NDMC’s term was to expire on October 3, 1980. The judgment was based on the principles of administrative law, which require strict observance of the principles of natural justice for such executive action. They apply if a State government supersedes a municipal body. Should they not apply also if the Government of India ousts an elected State government and imposes direct Central rule through a presidential proclamation under Article 356 of the Constitution?

In an authoritative exposition in the Constituent Assembly of India on August 4, 1949, the Chairman of the Drafting Committee, Dr B.R. Ambedkar, said: “If at all they are brought into operation, I hope the President, who is endowed with these powers, will take proper precautions before actually suspending the administration of the provinces. I hope the first thing he will do would be to issue a mere warning to a Province that has erred, that things were not happening in the way in which they were intended to happen in the Constitution. If that warning fails, the second thing for him to do will be to order an election allowing the people of the Province to settle matters by themselves. It is only when these two remedies fail that he would resort to this Article. It is only in those circumstances he would resort to this Article” .

 

Stringent conditions

The Supreme Court’s ruling in the Bommai case highlighted clearly the many and stringent conditions for the valid exercise of the power under Article 356. They are:

(1) Whether conditions in fact exist objectively which render it impossible to carry on the governance of the State in accordance with the provisions of the Constitution; even so, this power must be used sparingly and so as not to disturb the federal balance of power between the Union and States since federalism is part of the unamenable basic structure of the Constitution.

(2) The State’s Assembly must not be dissolved before both Houses of Parliament have approved the proclamation made by the President under Article 356.

(3) Even after such approval it will be open to the courts to consider independently whether in fact conditions so existed as to warrant exercise of the power under Article 226; judicial review, which is also part of the basic structure of the Constitution, is available in respect of Article 356. It can be exercised by the High Courts and the Supreme Court. Once a prima facie case is made out, the burden of proof will lie on the Government of India to justify the action.

(4) The court will be entitled to requisition the records from the government containing the material on the basis of which the Council of Ministers of the Government of India tendered the advice to the President.

(5) The courts have the power to order an interim stay on the exercise of power under Article 356.

(6) Lastly, the courts have the power, if the proclamation is struck down as unconstitutional, to order the revival of the dissolved State Assembly and restoration of the dismissed State government.

These six propositions emerge very clearly from the judgments pronounced by the nine judges who sat on the Special Bench that heard the case.

Article 356 is based on Section 93 of the Government of India Act, 1935. On August 14, 1947, a day before India became independent, the Governor-General, in exercise of his powers under Section 8 (2) of the Indian Independence Act, 1947, made the India (Provisional Constitution) Order, 1947, adapting the Act of 1935 with important modifications, as a provisional Constitution of India while the Constituent Assembly was at work on a new Constitution.

This Order omitted the hated Section 93 completely. Thus, from August 15, 1947, until January 25, 1950, the country was governed without any provision in its constitution for Governor’s rule or Governor-General’s rule. This period witnessed communal riots, refugee influx, the Telangana armed rebellion and much else. Section 93 was thus proved dispensable for two and a half years. Article 356 was adopted by the Constituent Assembly bearing in mind the abnormal conditions the country was passing through.

The following exchange between Ambedkar and Pandit Hriday Nath Kunzru in the Constituent Assembly deserves noting. Pandit Kunzru put a specific question to Ambedkar during that debate on August 4, 1949:

“May I ask my honourable friend to make one point clear? Is the purpose of Articles 278 and 278-A to enable the Central government to intervene in provincial affairs for the sake of good government of the provinces?

The Honourable Dr B.R. Ambedkar: No. No. The Centre is not given that authority.

Pandit Hriday Nath Kunzru: Or, only when there is such mis-government in the province as to endanger the public peace?

The Honorable Dr B.R. Ambedkar: Only when the government is not carried on in consonance with the provisions laid down for the constitutional government of the provinces. Whether there is good government or not in the Province is not for the Centre to determine. I am quite clear on the point.

Pandit Hriday Nath Kunzru: What is the meaning exactly of the provision of the Constitution taken as a whole? The House is entitled to know from the honourable member what is his idea of the meaning of the phrase ‘in accordance with the provisions of the Constitution’.”

Ambedkar referred him to the Government of India Act, 1935, which used this expression in Section 93. He, however, took care to emphasize the limitations

“In regard to the general debate which has taken place in which it has been suggested that these articles are liable to be abused, I may say that I do not altogether deny that there is a possibility of these articles being abused or employed for political purposes. But that objection applies to every part of the Constitution which gives power to the Centre to override the Provinces. In fact, I share the sentiments expressed by my honourable friend Mr. Gupte yesterday that the proper thing we ought to expect is that the proper thing we ought to expect is that such Articles will never be called into operation and that they would remain a dead letter.”

 

Amendments suggested in the domain of Union-State relations

By suggesting that Inter-state council shall be activated for resolving the problems of co-ordination, that prior consultations with states shall be held in the context of making treaties affecting the vital interests of states, and that by an integrated river board system inter-state water dispute shall be resolved, the Commission has tried to invoke popular participation and wider consensus of states for establishing amicable Union-state relationship. Thought is also paid to bring in democratic element in the working of Art.356 of the Constitution. It recommended for empowering the House of People to pass a resolution disapproving the continuance in force of proclamation under Art.356. Such

Resolution is binding upon the President for revoking the proclamation. Special sitting of the House on the basis of notice by not less than one-tenth of the total members of the House is also contemplated. In order to recognize the democratic principle of protecting the identity of state legislatures, the Commission recommended that article 356 should be amended to ensure that the State Legislative Assembly should not be dissolved either by the Governor or the President before the proclamation issued under article 356(1) has been laid before Parliament and it has had an opportunity to consider it.

 

PUNCHHI COMMISSION

It is generally well regarded that the first Commission on Centre-State Relations, which subsequently came to be known as Sarkaria Commission after its Chairman’s name, had given an excellent report on this subject which made a signal contribution for smoothening the relations between the Union and the States. The present Commission was thus constituted, under the Chairmanship of Shri Justice Medan Mohan Punchhi (rtd.), Former Chief Justice of India, to perform this task .The basic question that the Commission identified to be addressed was: “Are the existing arrangements governing Centre-State relations-legislative, executive and financial– envisaged in the Constitution, as they have evolved over the years, working in a manner that can meet the aspirations of the Indian society as also the requirements of an increasingly globalizing world? If not, what are the impediments and how can they be remedied without violating the basic structure of the Constitution?” The focus of the Commission during its numerous deliberations has consistently been on ‘as to what framework of relationship between the Centre and the States will strengthen the unity and integrity of the country and ensure India’s stability, security and economic growth and the welfare of her people’. It is hoped that the recommendations that have emerged after thorough understanding of the issues, and have been based on a balanced approach, will see early implementation so as to ensure healthier, smoother and more harmonious working Relationship between the Central Government and the State Governments of this great country in the future.

 

RECOMMENDATIONS

There should be an amendment in Articles 355 and 356 to enable the Centre to bring specific trouble- torn areas under its rule for a limited period.

I. The commission has proposed “localizing emergency provisions” under Articles 355 and 356, con¬tending that localized areas-either a district or parts of a district – be brought under Governor’s rule instead of the whole state. Such an emergency provision should however not be of duration of more than three months.

II. The commission however supports their right to give sanction for the prosecution of ministers against the advice of the state government.

III. To make an amendment in the Communal Violence Bill to allow deployment of Central forces without the state’s consent for a short period. It has proposed that state consent should not become a hurdle in deployment of central forces in a communal conflagration. However, such deployment should only be for a week and post-facto consent should be taken from the state.

IV. Among the significant suggestions made by the Commission is, lying down of clear guidelines for the appointment of chief ministers. Upholding the view that a pre-poll alliance should be treated as one political party, it lays down the order of precedence that ought to be followed by the governor in case of a hung house:

(a) Call the group with the largest pre poll alliance commanding the largest number;

(b) The single largest party with support of others;

(c) The post-electoral coalition with all parties joining the government; and last

(d) The post electoral alliance with some parties joining the government and remaining including Independents supporting from outside.

V. The panel also feels that governors should have the right to sanction prosecution of a minister against the advice of the council of ministers. However, it wants the convention of making them chancellors of universities done away with.

VI. As for qualifications for a governor, the Punchhi commission suggests that the nominee not have participated in active politics at even local level for at least a couple of years before his appointment. It also agrees with the Sarkaria recommendation that a governor be an eminent person and not belongs to the state where he is to be posted.

VII. The commission also criticizes arbitrary dismissal of governors, saying, “The practice of treating gov¬ernors as political football must stop”.

VIII. There should be critical changes in the role of the governor – including fixed five-year tenure as well as their removal only through impeachment by the state Assembly. It has also recommended that the state chief minister have a say in the appointment of governor.

IX. Underlining that removal of a governor be for a reason related to his discharge of functions, it has proposed provisions for impeachment by the state legislature along the same lines as that of Presi¬dent by Parliament. This, significantly, goes against the doctrine of pleasure upheld by the recent Supreme Court judgment.

X. Endorsing an NCRWC recommendation, it says appointment of governor should be entrusted to a committee comprising the Prime Minister, Home Minister, Speaker of the Lok Sabha and chief min¬ister of the concerned state. The Vice-President can also be involved in the process.

XI. Unlike the Sarkaria report, the Punchhi report is categorical that a governor be given fixed five-year tenure. The Punchhi Commission report also recommends that a constitutional amendment be brought about to limit the scope of discretionary powers of the governor under Article 163 (2). Governors should not sit on decisions and must decide matters within a four-month period.

XII. The creation of an overriding structure to maintain internal security along the lines of the US Home¬land Security department, giving more teeth to the National Integration Council.

XIII. For the National Integration Council (NIC), the commission has proposed that it should meet at least once a year. In case of any communal incident, it has said that a delegation of five members of the Council, who would be eminent persons, should visit the affected area within two days National debate and submit a fact-finding report.

XIV. The commission, however, rejects a suggestion from some stakeholders as well as the Liberhan Commission that the NIC be accorded constitutional status.

XV. The commission has also studied new set-ups like the National Investigation Agency, and recommended procedures to ensure smooth co-operation of the states in terror investigations entrusted to NIA. One can say that the extreme politicization of the post of Governor must be decried and certain specific norms for the appointment and removal have to be evolved.

XVI. The recent ruling of the Supreme Court has indicated that the sanctity of this constitutional post should be preserved. In democracy, nobody can have absolute power in the name of smooth administration and good governance. The administrative apparatus has to be in the line of the constitution, which was prepared by the people of the country and amended by the elected representative of the people of India. The ‘doctrine of pleasure’ has to be understood in this light.

 

New institutional mechanisms set up

The Constitution of India, under Article 263, envisaged the creation of institutional mechanisms for investigating, discussing, and advising on specific issues of concern to the centre and the states. One of the most important of these institutions, the National Development Council (NDC), was set up in 1952 with the Prime Minister as chair and the chief ministers of all the states as members. The NDC was supposed to strengthen and mobilize efforts in support of the five-year plans. Its role was subsequently expanded in 1967, when, following the recommendations of the Administrative Reforms Commission, it became a consultative body involved in the preparation of the plans and conducting their mid-term reviews. In 1990, there emerged another important institutional mechanism – the Inter-State Council (ISC), with the prime minister as chair, chief ministers of all the states, six ministers of cabinet rank appointed by the PM as members, and another four ministers of cabinet rank as permanent invitees. While the NDC involved the states in determining planning priorities, the ISC was expected to facilitate a more comprehensive dialogue. In recent times, the ISC has prepared an action plan on good governance and scrutinized the implementation of the Sarkaria Commission’s recommendations on centre-state relations. Over the years, several other institutions have been set up to enhance co-operation between the centre and the states. While most of these are advisory bodies, in the changing political scene they have been able to play a positive role. Zonal Councils were established under the States Reorganization Act of 1956. With the Home Minister as chair and the chief ministers of states in the region as members, these councils meet to resolve differences between the states and with the centre and to promote balanced socio-economic development in the region. There are now five such councils and they offer concerned states an opportunity to deliberate on issues of shared interest; last year, the focus was on rural development, infrastructure, tourism, mining, and internal security. Besides the Zonal Councils, there are a number of inter-state consultative bodies that review policies on specific issues: e.g., the National Water Resource Council, the Advisory Council on Food grains Management and Public Distribution and the Mineral Advisory Board. In addition, institutions have been set up under Article 263 to provide data for policies on specific issues. There are at present separate Central Councils of Health, Local Self Government, Family Welfare, Transport Development, Sales Tax and Sales Excise Duties, and Research in Traditional Medicine. Also, from time to time, the government sets up a finance commission to re- commend the distribution of resources from the centre to the states. There exists, as well, a provision for the creation of tribunals to settle disputes between states on the sharing of river water.

 

Limits of the existing structure

This large web of consultative bodies has enabled states to initiate dialogue with the centre and with each other, and has helped minimize tensions and enhance the co-operative dimension of the federal structure. While the contribution of these institutions must not be underestimated, there are nevertheless certain concerns that need to be addressed so that the institutionalized interactions nurture a sense of partnership, rather than paternalism, between the centre and the states.

First, no matter how well institutions are designed, their effective functioning is dependent upon, and can be impeded by, the larger political context in which they operate. For example, the ISC was set up in 1990 when the Congress Party had been voted out of power and first met in 1992. Then, after the Congress Party was voted back in, no meetings were held for the next six years – thus undermining the ISC.

Second, in the period of reform, new decision-making centers emerged and diminished the role of some of the existing consultative bodies. This is clearly the case of the NDC. Today, the NDC’s approval is required for finalizing the five-year plans, but, effectively, the planning priorities are determined by the Planning Commission, a body of the central government.

Third, while consultative bodies are forums where political positions of different parties can be, and often are, articulated, the spirit of dialogue is not always present. Therefore, the challenge is to mould them in a way that they become mechanisms for genuine co-operation.

Lastly, even though mechanisms of co-operation and consultation have been put in place, the centre remains powerful politically, and in extreme cases it can invoke the extraordinary measure known as President’s Rule, which allows the central government to assume all the powers of a state government when that government is deemed to not be carrying out its functions in accordance with the Constitution.

From 1950 to 1967, President’s Rule was imposed on 10 occasions. From 1967 to 1983, when the Congress Party was no longer the dominant force, this provision was invoked 81 times. In 1994, the Supreme Court ruled that such proclamations of emergency are not immune to judicial review. Since then, President’s Rule has only been imposed around 20 times and the political barriers to this measure have been raised. On balance, despite many institutions for co-operation and providing independence for the states, the centre remains a powerful influence, further strengthened by its control of important fiscal transfers from the centre to the states for centre-sponsored schemes.

The basic problem of imbalance in the financial aspect of centre-state relations is actually seen from the following fact. In 2004-05, according to the estimates of expenditure compiled by the Reserve Bank of India, the burden of annual developmental expenditure borne by the states (taken together, Rs 3.62 lakh crore) was more than one and a half times higher than what was borne by the centre (Rs 2.33 lakh core). These figures relate to the expenditure that the states could made under financial constraints. The really needed developmental expenditure of the states would have been much higher, at least twice this figures. On the other hand, in the sphere of revenue-raising, of the total revenue collected in the country in 2005-06, nearly 62 percent went to the hands of the central government and only 38 percent to all the states taken together.

 

Along with these critical issues of the needed reordering of centre-state relations in the financial sphere, there are important and long-pending demands for changes in the centre-state relations in the administrative and legislative spheres as well. The most vital issue in administrative matters is related to the blatant and repeated political abuse of article 356 of the constitution by the central government to dislodge the democratically elected state governments. It is therefore urged, as per discussions in the Inter-State Council, that there must be strong safeguards against the abuse of article 356, keeping in view the judicial pronouncements by the Supreme Court in the S R Bommai case . This must be done through constitution amendments, without further delay, so that article 356 is not used except in the case of a serious threat to the secular fabric of the country. Similarly, a constitutional amendment is needed against abuse of article 355, so that central government can send central forces only after the concerned state government requests for it. In the legislative sphere, again with appropriate constitutional amendments, definite time limits need to be fixed for receiving the governor’s sanction or the president’s assent for the bills passed by a state assembly.

 

 

Thus autonomy of states is compulsory because of various compulsions like social, cultural, economic, administrative and political .In the recent years there has been growing demand for state autonomy .It has been realized that there is great need for decentralization in the Indian federalism. The real is how to make autonomy effective and fruitful. For this purpose there is need of following suggestion;

 

1. There are instrument in the hands of central government that help to coerce state government like Article 356 of the Indian constitution .such instrument must be subject to judicial review and control as suggested by Sarkaria commission however ,existing judicial apparatus is not effective ,there is need of federal tribunal.

2. According to Morris Jones federalism in India should be bargaining federalism. There is need to develop institutions through which bargaining can take place between the centre and states in administrative, legislative and political matters. One such institution already exists i.e. National development Council, however its meeting should be held more frequently. More such authority should be developed, so that relations between centre and states are mediated and arbitrated.

 

Conclusion

To conclude, the ‘Union of States’ model of Indian federalism, following the events of the eighties and early nineties, had started showing signs of both resilience and flexibility. Although the Central Government continues to be strong and continues to maintain its pre-eminence, attempts are in progress to strengthen the States through various federal mechanisms. It was visualized that the system of coalition-governance at the Central level by giving direct representation to powerful regional parties and ensuring their involvement in the decision making on National issues was a sound step to easing of tensions between the federal Government and the States. Through the process of economic reforms, the federal Government started the dispensation of National power and resources to the regions. In order to meet the imperatives of good governance, fiscal discipline on the part of the Union and the States is also increasingly underlined.

 

Dr. B. R. Ambedkar, Chairman of the Drafting Committee, while introducing the Draft Constitution, observed that:

“Some critics have said that the Centre is too strong. Others have said that it must be made stronger. The Draft Constitution has struck a balance. However much you may deny powers to the Centre, it is difficult to prevent the Centre from becoming strong. Conditions in modern world are such that centralization of powers is inevitable. One has only to consider the growth of the Federal Government in the USA which, notwithstanding the very limited powers given to it by the Constitution, has outgrown its former self and has overshadowed and eclipsed the State Governments. This is due to modern conditions. The same conditions are sure to operate on the Government of India and nothing that one can do will help to prevent it from being strong. On the other hand, we must resist the tendency to make it stronger. It cannot chew more than it can digest. Its strength must be commensurate with its weight. It would be a folly to make it so strong that it may fall by its own weight.”

Ambedkar’s view was criticized by several members of the Constituent Assembly. K. Santhanam took particular exception to the expansion of the Concurrent List as tending to blur the distinction between the Centre and the units. He said

“In the course of time it is an inevitable political tendency of all Federal Constitutions that the Federal list grows and the Concurrent List fades out, because when once the Central Legislature takes jurisdiction over a particular field of legislation, the jurisdiction of the provincial legislature goes out… . We must reflect whether this is what we want and whether this is desirable. If we do not want it, we will have to see that the Concurrent list is either restricted to the minimum or define the scope of the Central and Provincial Jurisdiction in regard to matters mentioned in that List.”

Likewise, Arun Chandra Guha noted : “I admit we require a strong Centre, but that does not mean that its limbs should be weak. We cannot have a strong Centre without strong limbs.”

Our constitution uses the term union not the centre .T he day is bound to come when the state will repudiate the wrongful subjection by the union and will awaken to claim their legitimate status under the constitution .The constitution provides for a co-operative federation of states with the bias in favor of centre

 

 

 

BIBLIOGRAPHY

 

 

Primary Source

• Constitutional Assembly Debates,

• The Constitution of India

• Report of Sarkaria commission

• Commision on centre state relation by Shri Justice Madan Mohan Punchhi (Retd.)

 

SECONDARY SOURCE

 

• “Report of the National Commission to Review the Working of the Constitution (Venkatachaliah Commission)”

• “Union-State Relations in India” by R.C.S. Sarkar, former Law Secretary, Government of India, and Chairman,

• Union Public Service Commission

• Current Issues and Trends in Centre-state Relations: A Global View edited by Subhash Chander Arora

• WE THE NATION by nani palkiwala,27 edition

• Morris-Jones : The government and politics of India,

• People’s Democracy (Weekly Organ of the Communist Party of India (Marxist)

• Frontline, INDIA’S NATIONAL MAGAZINE from the publishers of THE HINDU

• M .p. Jain, Indian constitutional law, sixth edn. Reprint 2011

• AIR


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rajsekhar
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very well compiled, resourceful and balanced write-up

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