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Paper II: POLITY

Sub-Topic

ISSUES AND CHALLENGES PERTAINING TO FEDERAL STRUCTURE

FRAMEWORK OF MAINS NOTES TO BE GIVEN

HISTORICAL BACKGROUND

BASIC UNDERSTANDING

FACTORS WHICH HAVE INFLUENCED INDIAS FEDERAL SET-UP

ISSUES

COMMITTEE RECOMMENDATION

PREVIOUS YEARs MAINS QUESTIONS WITH DIRECTIONS TO SOLVE

MIND-MAPPING

RECENT NEWS & CONTROVERSIES (DYNAMIC)

Evolution of Centre-State relation in Post-independence

Evolution of Centre-State Relation

Post-Independence

Absolutely no friction in Centre-State relation due to one party domination.

1967-1980

Centre-state relation was put for real testing. Coalition politics was flourishing at statelevel.

Post-1980

Very Complex Centre-State relations due to coalition politics at both Centre as well as States level and economic liberalization.

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Discussion on Centre-State relation in current scheme:

Centre-state relation in current scenario is very complex and has a number of facets that

can be discussed under following subheadings

1. Constitutional Scheme of Centre-State Relations

2. Economic and Financial Relations

3. Local Governments and Decentralized Governance

4. Criminal Justice, National Security and Centre-State Co-operation

5. Natural Resources, Environment and Inter-state waters

6. Land and Agriculture Infrastructure Development and Mega Projects Socio-Political

Developments,

7. Public Policy and Governance and Social, Economic and Human Development

Constitutional Scheme of Centre-State Relations

Constitution of India provides for elaborate provisions for purpose of greater degree of co-

operation between Centre and States. Moreover, the union government has also been

active and set-up various commission and committees to look after the relation in light of

ever changing dynamics of the relation. However, the constitutional scheme can be mainly

classified into following three facets:

1.

Legislative Relations

2.

Administrative Relation

3.

Financial Relation and Planning

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Legislative Relations between Centre and States:

Articles 245-255 provides for the detailed legislative relations between Centre and

States. However, the significant ones can be shortlisted as

1. Article 249: Extraordinary power of the Parliament to enact legislation even

on matters those come under states list. For this, Rajya Sabha has to pass a

resolution supported by no less than 2/3rd of the total members. It lasted for

one year but can be renewed by the same process as well.

2. Article 250: Administrate Centre-State legislative relation during

proclamation of an emergency.

3. Article 252: Gives powers to Parliament to legislate with the consent of the

state.

4. Article 253: It provides powers to Parliament to legislate for purpose of giving

effects to treaties and international agreements.

5. Article 254:

6. Article 356: This is the most significant Article that characterizes the Centre-

State relation during an emergency.

Issues, hindering the legislative relation between Centre and States:

Provision of Residuary Powers: Originally, in the constitution the residuary powers

had been kept with the Centre and this was done seeing the then situation of states.

The states had not enough resources. They were not capable enough to tackle or

legislate on any unforeseen matter of significance. But in other mature Democracies,

such as the United States of America (USA), Switzerland and Australia, the residuary

powers essentially lie within the states because of their well resourced states.

Why Residuary Powers is perceived as a bone of contention between Centre and States?

Residuary powers include the power of any law, imposing a tax which is not mentioned in any of lists. The power of making law under residuary powers is perceived as inconsistent with the true federal character of the constitution.

Regarding this, Sarkaria Commission recommended that the residuary powers of legislation regarding taxation matters should be within Centre but rest of other powers must be transferred to states.

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Union of India: Indestructible Union of Destructible States

Unlike USA federation and other federals, Parliament of India has power to

reorganize the states or to alter the boundaries of the states even without the

consent of the states. This sometimes results into sentiment against the centre and

of course, there are scopes of misusing such powers. Only recently, the Andhra

Pradesh state assembly had rejected the resolution of the union to create another

state Telangana. This shows that in creating or reorganizing, the centre always has

an upper hand.

Relevance of Article 254 in Centre and state relations:

It is apparent that if the legislature of states will enact legislation with respect to

issues in Concurrent list that is repugnant upon the Union laws but has been kept

reserve for President assent and receives Presidents assent then it shall prevail

irrespective of repugnancy upon the union laws

However, article 254 empowers Parliament to enact the law again and with larger

immunity.

This article sometimes has been referred as repugnant and overriding on federal

character but the constitution framers had maintained the parliament supremacy

right from the working of constitution and thus, the article 254 is materialization of

the Parliamentary Supremacy.

Executive or Administrative Relations between Centre and State:

Constitution of India does not provide explicitly about the administrative relations

between Centre and states. But the distribution of such powers is mutually devised

and accepted.

Article 256-263 provide for Union control over states even in normal times through

following Ways:

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The normal structure of administrative powers remains that the executive powers of

state shall be exercised within the territory of state with respect to state list and on

the subjects related to concurrent list, executive powers shall be exercised by the

state and within states.

Direction by the Union to states:

Article 256 provides that the executive powers of the state shall be so exercised as

to ensure compliance with the laws made by the parliament and the executive

powers of the union executives shall also be extend to the giving of such directions

to states as it deem necessary. Apart from this, the union shall also have powers to

give direction to states regarding certain matters such as construction and

maintenance of the communication means, development of Hindi language, the

welfare of the Scheduled Tribes in the state, the protection of railways, etc.

Article 257 says that the States must exercise their executive powers in such a way

that it should not impede or prejudice the exercise of executive power of the Union

in the state. It further states that, upon failing which the centre may invoke Article

356.

Criticism of Article 256 and Article 257:

There have been long standing demands to amend or repeal these provisions. The arguments against these provisions are premised on that these are repugnant upon the true federal spirit. In no federal structure, constitution confers powers upon the centre to give directions to states. It is also pointed out that these kinds of provisions were unique to Indian Constitution and find mention nowhere in the Constitution of USA or Australia.

1.

Direction by the Union to the states

Delegation of Union functions to the states

2.

All- India services

Grants in Aids

3.

Direction by the union

Mutualy transfer of administrative powers

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Delegation of Union functions to the states:

Under Article 258 the Parliament may, with the consent of states either

conditionally or unconditionally, confer some executive powers which fall in centres

executive realm. Moreover, constitutionally, under Clause 2 of this article Parliament

is also empowered to use states machinery for implementation of union laws.

Once the duties are imposed and powers are delegated, it would be duty of the state

officers to implement it, thus the Parliament can interfere in internal administration

also and that too without the consent of the states. This has been alleged by states

as encroachment by the parliament upon their autonomy.

If there is a provision of a constitutional body Finance Commission, whose main task is to distribute resources between centre and states, then why Grants-in Aids? What are the purposes of Grants in Aids?

Grants-in-Aid serve following two purposes

Firstly, it allows central government to exercise greater control over states as all transfer under Grants in aids are conditional and it takes place only when the states fulfil some conditions of the central government such as fiscal management, environment protection, good governance, etc.

Secondly, It gives opportunities to states to receive more resources apart from awarded resources through Finance Commission. It enables them to look after various socio-economic concern of the state. Thus, if combined it creates a scope for greater degree of co-ordination between centre and states.

Financial Relation between Centre and State:

Unlike legislative and administrative relation, financial relation has undergone most

significant transformation. It has evolved over a long period of time from a heavy

public sector dominated restrictive economy to a liberalized or more open economy

in post-reform period.

One of the major problems that arise in post reform period is growing imbalances

between functional responsibilities and financial resources.

The disequilibrium between proliferating function responsibilities of the states and

their own resources is corrected by Central transfers effected through following

three main channels :

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But one of the greatest problems of financial relations between centre and states is

that the constitution has neither indicated the share of states in the divisible taxes

nor prescribed any principle for the distribution of share among states.

Article 280 provides for establishing of Finance Commission for distribution of

resources between centre and states but actual determination of resources by

Finance Commission is diluted as the final decision on Finance commission is

generally taken by the central government. Finance Commission is a unique feature

of the constitution of India and finds no mention in any parallel constitution in the

world.

There are two big controversies associated over the sharing of the taxes:

1. Distribution of Corporation Tax: Prior to 1959, the company tax exclusively

belonged to the state government but in 1959 the definition of Corporation tax had

been changed. The new definition said that the income tax paid by the companies is

Corporation tax. As an offshoot of this definitional change, company tax ceased to

be sharable with the states as per provisions of article 270. Regarding this the 10th

Finance Commission recommend that the permissibly sharable tax can be shared

with reasonable amendment in the constitution

2. Surcharge on Income Tax: Article 271 provides for the power of imposing surcharge

exclusively belonged to the Central government. Regarding this, the states have long

standing demand of including Surcharge on Income tax on sharable pool of taxes.

However, this demand has not been accepted neither by any of Finance

Commissions and nor by central government.

Statutory transfers through the Finance Commission

Plan transfer through the planning Commission

Discreationary transfers of Centrally Sponsored Schemes

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Transfer of Resources via Planning Commission:

Until recently before disbanding of Planning Commission, major chunk of

resources were used to be transferred through the Planning Commission route. It

had serious repercussions over entire Centre-state financial relation.

Article 282 empowers central government or a state to make any grant

voluntarily.

These grants are essentially different from those of which are made under Article

275.

The devolution of discretionary funds by the Planning commission comes directly

under this article

TO BE CONTINUED...in Programme 2 and 3 of ILP 2016

Directions for Mains Question:

Does AIS violate principle of federalism?

No:

AIS provide unity and solidarity of the country by combating parochial attitudes, as

they are less influenced by local & regional influences.

Integrity, cohesion , efficiency and co-ordination because they are rotated between

the Centre and the States, enabling the Centre govt. to be in touch with the Ground

realities of the states

Wider outlook, High calibre exhibited by the AIS, competition- so the best are

recruited.

Strategic or key posts were policy decisions are involved are held by AIS personnel

and they can give independent advice to the State ministers, which the officers of

the State hesitate to do. National integration, as AIS belong to different states.

Uniformity in administration, which becomes necessary in the interest of the nation.

(Sarkaria commission too had supported AIS as it was important for the unity of the country)

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Yes:

Especially with IPS, since L&O is a state subject

Disciplinary actions are taken by centre, hence less control over AIS personnel by the

State govts (encroaches states autonomy).

Creates hostility b/w the AIS and state civil servants as key posts are held by the AIS

personnel, less co-ordination or cooperation.

With increase in AIS personnel being sent to the State Govt, reduces the

employment opportunity for Sons of the Soil.

Larger expenditure from the states exchequer.

(Rajamannar committee had recommended for abolition of AIS as it encroached the

autonomy of the States)

Conclusion: AIS provide a valuable link b/w the centre and the State and help in solving day-

day issues with much comparative ease. And also since 33% are promoted from the State

govt to AIS, it helps in facilitating liaison b/w the centre and the States and with national

interest in mind AIS should be continued.

Recent developments in Union-State relations in India (or) The emerging conflict and

cooperation in the Indian Federalism.

Recent developments & emerging conflicts: Take any 2 or 3 issues and explain the administrative, legislative and financial implications of Centre and the Sate Govt. Telangana issue Goods & Service Tax (GST) issue National Counter terrorism Centre (NCTC) FDI in retail Tamil Nadu- India-SriLanka issue (regional parties in the matter of foreign policy) Land boundary agreement & Teesta river water agreement Communal violence Bill AFSPA, paramilitary forces

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Cooperation: NDC with the rise of coalition politics & regional parties, states have more say. Irrigation projects Damodar River Valley project The successful functioning of the Indian federal system depends not only the harmonious relations and close cooperation between the Centre and the States but also between the states inter se. What are the constitutional and statutory provisions provided with regard inter-state comity? Inter-state comity (harmony) Constitutional provisions:

Article 262 Interstate water disputes Parliament by law can provide for adjudication of any dispute or complaint with respect to the use, distribution and control of waters of any inter-state river and river valley. Inter-State water Disputes Act empowers central govt to set up an ad hoc tribunal for the adjudication of dispute b/w 2 or more states.

Article 263- Inter State Council coordination b/w the states and between Centre and states.- deliberations, discussions on subject of common interest.

Public Acts, records and Judicial Proceedings: Full faith and credit clause throughout the territory of India to public acts (legislative and executive acts), records and judicial proceedings of the Centre and every state. Final judgements and orders of civil courts in any part of India are capable of execution anywhere within India (but only w.r.t civil judgements and not to criminal judgements)

Inter-state trade and commerce commission trade throughout the territory of India shall be free.

NDC Statutory provisions:

Zonal Councils aim at promoting cooperation & coordination b/w states, union territories and the Centre. Discuss matters regarding to economic and social planning, linguistic minorities, border disputes, inter-state transport. To achieve emotional integration, arresting growth of regionalism.

National Integration Council was setup in 1986 to deal with welfare measures of the minorities on an All-India basis.

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Questions & Directions to approach:

By this way, not only the relevant content is covered through the questions but also helps in analysing the issue from multi-dimensional view-point.

Helps in understanding the expectations of UPSC and raising ones standards accordingly.

It also helps in understanding the requirement of the question and knowing what to write and how to write (Basically in your Answer writing).

1. Article 356 has become one of the most controversial and most criticised provisions of the Constitution. Comment Basic Framework: What is Presidents rule? When can it be applied? What happens or what changes does it bringin Centre-State Relationship when

Article 356 comes into being? How article 356 is used as a political ploy to settle political scores? How can the misuse of Article 356 be curtailed? Steps taken by the Government in

this regard. Balanced Conclusion

Note: This is for your understanding. Its not a Model answer. So world limit is not taken care of. Its done to let you understand the basic content, structure and approach Presidents rule:

Article 356 / Presidents rule / State Emergency / Constitutional Emergency is an emergency provision which empowers the President to take over the administration of a State or the States of the Indian Union if he/she is satisfied that there is a breakdown of the constitutional machinery of a State or States. According to Article 355, it is the duty of the Centre to ensure that the government of every state is carried on in accordance with the provisions of the Constitution.When there is a failure of constitutional machinery in a state government article 356 comes into being and Presidents rule is applied.

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Article 356 can be applied on two grounds:

If the state cannot be carried in accordance to the provisions of the Constitution.

Whenever a state fails to comply with or give effect to any direction from the Centre, presidents rule can be applied.

Consequences of Presidents rule:

The State Governor, on behalf of the President carries on the state administration with the help of the chief secretary of the state or advisors appointed by the President.

The President either suspends or dissolves the State Legislative Assembly and the Parliament passes the state legislative bills and the state budget.

The President can promulgate ordinance, can authorize expenditure from State Consolidated fund, when the Parliament is not in session.

Article 356 has been misused many a times:

It has been used in an arbitrary manner for political or personal reasons.

Presidents rule has so far been imposed about more than 123 times (since 1951-2010) in the States has varied from 10 days in Bihar to 1192 times in Pondicherry. Examples:

After internal emergency, in 1977 Janata Government imposed Presidents rule in 9 states (where Congress party was in power)on the ground that assemblies in those states no longer represented the wishes of the electorate. When the Congress party came to power in 1980, it did the same in 9 states on the same ground.

In 1992, Congress imposed Article 356 on BJP states (Madhya Pradesh&Rajasthan) on the ground that the states were not implementing the ban imposed by the Centre on religious organisations.

Also, since the Governor is appointed by the President, who holds office under the pleasure of the President, chances of misusing the article 356 arises.

Recommendations to prevent the misuse of Article 356:

The Sarkaria Commission Report as well as the Report by the National Commission to Review the Working of the Constitution (NCRWC) have elaborately dealt with the problems arising in implementation of Article 356, the S.R. Bommai judgment and have recommended various measures to utilise Article 356 in preserving the balance between the Union and the States. In the S. R. Bommai case 1994, the Supreme Court's judgment laid down the following guidelines:

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Article 356 should be used very sparingly, in extreme cases, as a measure of last resort, when all available alternatives fail to prevent or rectify a breakdown of constitutional machinery in the State

The power conferred by Article 356 upon the President is a conditioned power. It is not an absolute power. The Governors report is a pre-condition and the satisfaction must be formed on relevant material and a warning should be issued to the errant State before taking recourse to Article 356.

The Legislative Assembly can be dissolved only when the Proclamation for emergency is approved by both Houses of Parliament. Until such approval, the President can only suspend the Legislative Assembly.

The Proclamation under Article 356 is not immune from judicial review.

Whether the Ministry in a State has lost the confidence of the Legislative Assembly or not, should be decided only on the floor of the Assembly. And so long as the Ministry enjoys the confidence of the House, emergency cannot be proclaimed. Only where a Chief Minister of the Ministry refuses to resign after his Ministry is defeated on a motion of no-confidence, should the Governor dismiss the State Government.

Allegations of maladministration or corruption cannot be the criteria, however defeat on a major policy issue can be.

According to Punchi Commission "localised emergency" would ensure that the State Government can continue to function and the Legislative Assembly would not have to be dissolved and would also provide a mechanism by which the response of the Central Government would be issue specific and the Central Government would have to exit the moment the situation is back under control. Such a provision would also reduce the temptation of the Centre to misuse the emergency provisions in Article 352 and Article 356 as the State Government would continue to function in other parts of the State and the imposition of a local emergency could only be done when there exists a crisis situation decided on objective standards. Therefore, the possibility of gaining political mileage through misuse is significantly reduced.

Conclusion:

It has been emphasised by the committees that Article 356 should not be deleted altogether. However, the states should be given an opportunity to explain its position and redress the situation and only then the Presidents rule should be used as a last resort. Centre must not rush to invoke article 356 in very first instance. With media activism, public awareness and President using his powers effectively, Article 356 has been used sparingly and has helped in furthering the concept of cooperative federalism.