An Appraisal of the Existing Framework of Centre-State Relations
The Constitutional scheme of governance at the Centre and in the States is provided in Part XI (Articles 245 to 263), and Part XII (Articles 264 to 298), Part XIII and Part XIV.
Broadly it deals with three types of relations namely
(a) Legislative Relations (Articles 245-255);
(b) Administrative Relations (Articles 256-263); and
(c) Financial Relations (Articles 264-293).
1.LEGISLATIVE RELATION : (very well elaborated in DDB)
The Scheme on legislative relations is largely based on the federal principle of "subsidiarity" .
Three Lists.
ISSUES :
PARLIAMENTARY SUPREMACY :
-ART 254 in effect that Parliament can repeal a State law at any time with respect to a matter in the Concurrent List, even if made with consent of President.
-Furthermore residuary powers of legislation is exclusively with the Union (Article 248).
-The supremacy of the Union in legislative matters is further clear from the extent of powers the Union enjoys to legislate on subjects in the State List under certain circumstances.
These include:
(i) Power of Parliament to legislate in national interest under a Resolution of the Upper House (Article 249)
(ii) Power of Parliament to legislate during operation of Emergency (Article 250)
(iii) Parliament's power to legislate with the consent of States (Article 252)
(iv) Legislation for giving effect to international treaties and agreements (Article 253)
(v) Power to legislate in case of failure of Constitutional machinery in States (Article 356)
POWER OF GOVERNOR
another issue in respect of legislative relations which caused friction between Centre and States is the power of Governor to reserve any Bill passed by the State Assembly for consideration of the President, sometimes for an indefinite period! A law adopted, sometimes more than once, by the Assembly can therefore become a law in the State only if assented by the President (Articles 200, 201).
2.ADMINISTRATIVE RELATION
The scheme is aimed to facilitate implementation of Union laws in States, achieving co-ordination for administrative efficiency, resolving disputes when they arise and to ensure that the Union intervenes whenever State is threatened by external aggression or internal disturbance.
The division of executive power is co-extensive with the division of legislative power of both the Governments (Article 73 and 162).
ISSUES
CENTER'S SUPREMACY : 257(1)
Article 257(1) says that the executive power of the State shall be so exercised as not to impede or prejudice the exercise of executive power of the Union.
The Centre is empowered to give directions to States in this regard. If directions are not complied, emergency provisions may be invoked by the Centre. The Constitution thus provides a coercive sanction against any disobedience of the Central directions by the States.
CONFLICT RESOLUTION OUTSIE COURT HAD LITTLE IMPACT :
ART 263 :MEETS RARELY AND HAS NOT BEEN EFFECTIE
ART 262
Informal methods outside the Constitutional scheme are often pressed into service to keep governance going despite the shortcomings.(thus formal methods become redundant ).
ROLE OF CENTER UNDER 73RD AND 74TH ACT:
The States which are supposed to make law in this regard have been slow in the matter of empowering Panchayats with functions, funds and functionaries. Meanwhile through Court interventions and otherwise, Panchayats have elected representatives who are not able to organize governance at local levels as expected.
There is a feeling that the existing arrangements need a fresh look to put the third level of governance back on rails to make democracy function.
3.FINANCIAL RLATION
The scheme of financial relations is another vexed issue which, in spite of the elaborate provisions on division of taxing powers and the intervention of the mechanism of the five-yearly Finance Commission, continue to be a friction point in Centre-State relations. The scheme contemplates complete separation of taxing powers
between the Union and the States, mechanism for sharing of revenue, and a system of grants-in-aid to bridge gap between fiscal capacity for administration and for making intergovernmental financial adjustments.
-While the taxes levied by the States are collected by them and entirely go to their Consolidated Fund, the taxes levied by the Centre are sharable with the States.
The distribution of revenues raised by Union is regulated through assignment, compulsory sharing, permissible sharing and grants-in-aid (Articles 268-281).
The method usually adopted to adjust the imbalances between the functions and financial resources of the two layers of governments in a federal system is the transfer of funds from Union to States.
While safeguarding the autonomy and stability of State Governments, the scheme of financial devolution must bring about financial equalization with a sense of fiscal responsibility and promote the welfare of the country as a whole.
A purely discretionary system is unacceptable in a federal framework. Therefore an independent agency like the Finance Commission is proposed to assess the changing needs of the States and imbalances between the richer and poorer States.
The borrowing powers of the Central and State Governments are regulated by Articles 292 and 293 under which States can borrow from sources outside India only with the prior consent of the Government of India.
Centre-State relations present a mixed picture of promise and performance far from its full potential. ?
democracy has taken deep roots.
federal system has shown capacity to give expression to subnational identities .
but coalition and instability or compromises .
regional power elite (on basis on caste etc) exert influence not always promotive of constitutional purposes.
new channels of transfering significant resourses not envisaged under constitution angered sates .
however all these cold have been mediated in parliament and assembly ,however it has declined over the years and issues are taken to courts or streets.
CHAPTER 2
ISSUES AND CONCERNS IN INTERGOVERNMENTAL RELATIONS
Key Concepts and Founding Principles:
Republicanism, rule of law, independent judiciary and guaranteed individual rights are inter-alia, inherent characteristics of the Indian Constitution.(later declared so by SC in (Kesavananda Bharathi v. Union of India AIR 1973 )
To achieve these objectives, parliamentary democracy and co-operative federalism have been adopted for structuring the Government.
Federal, Quasi-Federal or Unitary with Federal Features:
the very first Article stipulates that India shall be a Union of States, the fundamental feature of any federal set up.
The Constitution makers were convinced that pluralism and diversity of such dimensions which are captured in the idea of India could not be sustained excepting through a federal arrangement. In such setup wherein small , marginal , poor , weak live along with big, rich , strong responsibility of center naturally increases .
Naturally, the financial-fiscal aspects of Centre-State relations became the most important of all issues between the Centre and the States.
Constitution is an instrument of governance and the structure has to be accepted as it is, rather than trying to equate it with federal structures elsewhere.
CHAPTER 3:
LEGISLATIVE RELATIONS BETWEEN THE UNION AND STATES
Evolution of Legislative Relations
ACT OF 1919 ,1935(NEVE CAME IN OP) .
SITUATION AT TIME OF INDEPENDENCE.
NEED FOR COOPER. AND SHARED RESPO
TO ACCOMODATE ALL.
MODELS:
The American Constitution specifically enumerates the powers of the Federal Government and leaves the rest to the States.(ALSO AUSTRALIA)
However the Canadian Constitution adopted a three-fold enumeration of powers in the scheme of distribution between the Union and the Provinces.
WE FOLLOWED GOI AC 1935 .
Views of States, Union and Political Parties on Legislative Relations
the Union has enriched its powers at the cast of the States. This has weakened the federal structure.
It was their view that the case for centralization which existed at the time of framing the Constitution does not exist anymore and what is needed now is a conscious policy for strengthening the States by enriching the State List and following the principle of "Subsidiarity".
the Sarkaria Commission found some merit on the grievance of States and recommended some changes not so much in the scheme but in the way the power is exercised.
(i) In matters of concurrent or overlapping jurisdiction, a process of mutual consultation and co-operation has to be put in place to achieve co-ordination of policy and action. It must be evolved as a convention or rule of practice rather than a rigid Constitutional requirement.
(ii) 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 for State action within the broad framework of the policy laid down by the Union Law.
Furthermore, whenever the Union proposes to legislate on a matter in the Concurrent List, there should
be prior consultation. A resume of the views of the State Governments and the comments of the Inter-State Council should accompany the Bill when it is introduced in Parliament.
(iii) Residuary powers (now exclusively with the Union) excepting matters relating to taxation, should be placed in the Concurrent List .
The Venkatachaliah Commission5 also found the scheme of division of powers justified.
It however felt that the grievances of States are more directed at the manner in which the Union exercised its powers.
The existing arrangements in this regard require institutionalization through the Inter-State Council by a continuing auditing role for the Inter-State Council in the management of matters in Concurrent or overlapping jurisdiction.
The Council, if found necessary, may use an independent mechanism like a Committee of State Ministers to thrash out contentious issues in the Bill so that there is a measure of support among the States to the
administrative and fiscal arrangements the Bill ultimately proposes to Parliament. It is important that the record of proceedings in the Council/Committee including views of States is made available to Parliament while introducing the Bill on Concurrent List subjects.
Transfer of Entries in the Lists, from List II to List III
ART 368(2) : Empowers parliament to unilaterally limit legislative field of states .
In a federal system, the existence of the power in the Union does not by itself justify its exercise and it is the considered view of the Commission that the Union should be extremely restrained in asserting Parliamentary supremacy in matters assigned to the States.
For that :
Greater flexibility to States in relation to subjects in the State List and "transferred items" in the Concurrent List .
In respect of transferring matters from the State List to the Concurrent List the mechanism provided under Article 368 clause (2) is robust and sufficiently consultative that it does not pose any threat to Centre-State relations. It cannot happen unilaterally without the support and co-operation of states.
--->adequate consultation among stakeholders and through Inter-State Council should precede introduction of such proposals in Parliament.
---->In this context, it is worthwhile to examine through a joint institutional mechanism whether the administration of the relevant subject under the Central law (on the transferred subject) has achieved the objects and whether it is desirable to continue the arrangement as an occupied field limiting thereby the exclusive jurisdiction of the States. If the findings are not positive it may be worthwhile to consider restoration of the item to its original position in State List in the interest of better Centre-State relations.
--->Such a step hopefully will encourage the States to devolve the powers and functions on that subject to the Panchayats and Municipalities as stipulated in Parts IX and IX-A of the Constitution.
Thus In short, the Commission is of the opinion that the Union should occupy only that much of subjects in concurrent or overlapping jurisdiction which is absolutely necessary to achieve uniformity of policy in demonstrable national interest.
Thus
firstly state should have greater autonomy in state list .(and union should be very cautious here)
secondly in concurrent union should occupy only that what is neccessary for uniformity in policy and in national interest .
thirdly even this is to be done by proper consultation of all stakeholder and views of states should be attached to bill .
ISC has greater role in this.
There was a view expressed in favour of drawing up a fourth List to be called the Panchayat List. The Commission is of the view that it is too early to consider such a proposal and there are practical difficulties in adopting such a course however desirable it be.
Representation of States and Panchayats/Municipalities in the Council of States (Rajya Sabha)
Two proposition
firstly , uniformity in representation of states and secondly give representation to 3rd tier in highest legislative body .
RS in cuurent form is particularily biased towards large states .
The Sarkaria Commission which examined the issue at length was not in favour of changing the structure of Rajya Sabha in favour of equal representation of States as it found the Upper House not exclusively representing the federal principle excepting in relation to the special powers under Articles 249 and 312.
Equal representation of States was discussed and rejected by the Constitution makers and Sarkaria Commission found the reasons valid in the present situation as well.
On the other hand, Sarkaria Commission was in favour of strengthening the special role of the Rajya Sabha as an instrument for effective representation of the view points of the States. It is a matter of re-designing procedures of the House rather than its composition.
Bills Reserved for President's Consideration
Art200 provides 4 courses to governor : assent , withhold , keep for prez , return (it is non justiciable right)
Art 201no timelimit for prez to act so it can be misused for political consideration. However in same art there is time limit of 6 months if bill is returned for consideration of states .
Also this is said to be unwarranted invasion in legislative power of states .
Allowing the democratic will of the State Legislature to be thwarted by Executive fiat is questionable in the context of 'basic features' of the Constitution.
The time limit of 6 months should also be applicable to prez to declare assent or withhold .
If the President, for any reason, is unable to give his assent, it may be desirable for the President to make a reference to the Supreme Court under Article 143 for an opinion before finally making up his mind on the issue. This will avoid allegations of bias while securing the dignity and authority of the House. Again this can be accomplished as a matter of practice or convention rather than through amendment of the Constitution.
Treaty Making Power, International Law and Legislative Relations
INTRODUCTION
union executin international treaty etc even in matters of state list.(states say that it leads to erosion of legislative competance of states).
Before independence it was prerogative of monarch till 1935 afterwards GGI.
Art 73 says entering and implementing such treaties is prerogative of center.
Articles 737 and 246(1), read in conjunction with the relevant items on the Union List, gives the Union Executive all the powers necessary to negotiate, enter into, and ratify, treaties. Entries 13, 14, 15 and 16 in the Union List are relevant in this regard, particularly Entry 14. They read as follows:
13. Participation in international conferences, Associations and other bodies and implementing of decisions made thereat.
14. Entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries.
15. War and peace.
16. Foreign jurisdiction.
Article 253 of the Constitution provides that notwithstanding any distribution of legislative power under Article 246, the Parliament has the power to enact legislations to give effect to treaties and international agreements8.
Treaty making power is an aspect of external sovereignty and the Preamble declares India as a sovereign country. but given the fact that the Constitution provides for a federal structure and guaranteed rights, Courts can impose restrictions on this power.
A treaty, for instance, cannot make provisions which would, in effect, amend the basic features of the Constitution, for it could not have been intended that a power conferred by the Constitution would, without an amendment to the Constitution, alter or destroy the Constitution .
Ram Jawaya Kapur case the Supreme Court made it clear that the Indian Constitution permits the executive to negotiate treaties
Justice Shah in the important case of Maganbhai Ishwarbhai Patel v. Union of India:
Distinguished between power to parliament under 253(legislative ) and power to executive under 73(executive ) :
If, in consequence of the exercise of executive power, rights of the citizen or others are restricted or infringed, or laws are modified, the exercise of power must be supported by legislation: where there is no such restriction, infringement of the right or modification of the laws, the executive is competent to
exercise the power."
Though the Parliament is vested with the power to enact laws in relation to the entering into and negotiation of treaties, no law in this regard has been enacted till date. Therefore, Parliamentary approval for every treaty is not the norm. The States can however consult with the federal government through the Inter-State Council
on all issues including treaties.
Parliamentary Proposals for Change (there has been many)
Recommendations of the National Commission to Review the Working of the Constitution (2001)
---> first thing that should be done by Parliament is to make a law on the subject of "entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with
foreign countries" as contemplated by Entry 14 of List I of the Seventh Schedule to the constitution.
The law should regulate the 'treaty-making power' .
--->There is an urgent and real need to democratise the process of treaty making. Under our constitutional system, it is not the prerogative of the Executive. It is a matter within the competence of Parliament and it should exercise that power in the interest of the State and its citizens. In a democracy like ours, there is no room for non-accountability.
--> The power of treaty-making is so important and has such far-reaching consequences to the people and to our polity that the element of democratic accountability should be introduced into the process.
--->besides accountability, the exercise of power must be open and transparent (except where secrecy is called for in national interest).
--->The said power can no doubt be given only to the Union Executive and none else but then the law must clearly delineate the exercise of the power. In particular, it must provide for clear and meaningful involvement of Parliament in treaty-making. As has been done in some countries, there must be constituted a committee of Parliament to whom every treaty/agreement/convention proposed to be signed and/or proposed to be ratified shall be referred.
--->While placing the draft/signed treaty before such committee, a statement setting out the important features of the treaty/agreement, reasons for which such treaty/agreement is proposed to be entered into, the impact of the treaty/agreement upon our country and upon our citizens, should be clearly and fully set out. The committee must decide within four weeks of such reference whether the treaty should be allowed to
be signed by the Union Executive without referring the matter for consideration to Parliament or whether it should be referred to Parliament for consideration.
---> it would equally be desirable if the law made by the Parliament categorises the treaties/agreements/ conventions/ covenants viz.,
(a) those that the executive can negotiate and conclude on its own and then place the same before both Houses of Parliament by way of information. In this category may be included simple bilateral treaties and agreements which do not affect the economy or the rights of the citizens;
(b) those treaties etc. which the executive can negotiate and sign but shall not ratify until they are approved by the Parliament. Here again, a sub categorisation can be attempted: Some treaties may be made subject to approval by default (laying on the table of the House for a particular period) and others which must be made
subject to a positive approval by way of a resolution;
(c) important, multi-lateral treaties concerning trade, services, investment, etc. (e.g. recent Uruguay round of treaties/agreements signed in 1994 at Marrakesh), where the Parliament must be involved even at the stage of negotiation.
--->The law made by Parliament must also provide for consultation with affected group of persons, organizations and stake-holders, in general. This would go to democratize further the process of treaty
making.
Treaty Making in Other Federal Systems
(i) Argentina
Argentina is a federation with a bicameral Parliament, known as the National Congress. The Executive is comprised of the President, Vice-President and the Cabinet. The President is elected by an electoral college, which is itself elected by the direct vote of the people. The President appoints the Cabinet.
-the President has the power to conclude and sign treaties. The Congress has no power to initiate treaty
negotiations, nor can it interfere with such negotiations.
-the Congress shall have power to approve or reject treaties concluded with other nations.
The Constitution does not specify the method of approval. In practice, the Congress has approved treaties by passing a law. It uses the same procedure as for any other law, except that it deals with the treaty as a whole, rather than by clauses. The treaty is not ratified until the law has been promulgated and published in the Official Bulletin.
Canada
The Canadian Governor-General, on the advice of the Executive, now exercises the treaty making power.
The Canadian Provinces have the power to enter into international agreements, which do not have treaty status, and therefore are not considered binding in international law.
There is no legal requirement for the Parliament to give its approval before a treaty is ratified. Nevertheless, it has been the practice of Canadian Governments to seek parliamentary approval of important treaties. Parliamentary approval is given by way of a resolution of both Houses, rather than the passage of legislation.
Treaties are not self-executing in Canada.
United Kingdom
The Government may negotiate, conclude, construe, observe, breach, repudiate or terminate a treaty. Parliament may alter the laws of the United Kingdom. The courts must enforce those laws; judges have no power to grant specific performance of a treaty or to award damages against a sovereign state for breach of a treaty or to invent laws or misconstrue legislation in order to enforce a treaty."
United States of America
-the President shall have power, by and with the advice and consent of the Senate to make treaties, provided two-thirds of the Senators present concur.
-no State shall enter into any treaty, alliance or confederation.
-requires approval by two-thirds of the Senate, before the President can ratify a treaty.
-There is no requirement to consult the House of Representatives.
- In practice, a treaty is negotiated by the Executive, and is only sent to the Senate for approval once it is finalised.
Drafting a Central Legislation for Treaty Making
Article 253 of the Constitution, Parliament has the power to enact legislations to give effect to treaties and international agreements. However, unlike United States Constitution, the Indian Constitution contains no provision for a ratification of treaties by Parliament. This has meant that the Union executive has wide powers with respect to treaty making powers.
In view of the vastness and plenary nature of the treaty making powers with the Union Government notwithstanding the scheme of legislative relations between the Union and States (Article 253), the Commission recommends that Parliament should make a law on the subject of Entry 14 of List I (treaty making and implementing it through Parliamentary legislation) to streamline the procedures involved. The exercise of the power obviously cannot be absolute or unchartered in view of the federal structure
of legislative and executive powers. Several states have expressed concern and wanted the Commission to recommend appropriate measures to protect States' interests in this regard. The Commission recommends that the following aspects may be incorporated in the Central law proposed on the subject of Entry 14 of List I:
-there cant be a uniform process for all kind of treaties , but there is need of legislation to regulate treaty making power .
-Agreements which largely relate to defense, foreign relations etc. which have no bearing on individual rights or rights of States of the Indian Union can be put in a separate category on which the Union may act on its own volition independent of prior discussion in Parliament. However, it is prudent to refer such agreements to a Parliamentary Committee concerned with the particular Ministry of the Union Government before it is ratified.
-Other treaties which affect the rights and obligations of citizens as well as those which directly impinge on subjects in State List should be negotiated with greater involvement of States and representatives in Parliament. This can assume a twofold procedure. Firstly, a note on the subject of the proposed treaty and the national interests involved may be prepared by the concerned Union Ministry and circulated
to States for their views and suggestions to brief the negotiating team. Secondly, an "Empowered Committee" of concerned Ministers of States and the Centre be asked to study the provisions of the agreement and recommend to Government to ratify the treaty in whole or conditionally with reservations on certain provisions.
-There may be treaties or agreements which, when implemented, put obligations on particular States affecting its financial and administrative capacities. In such situations, in principle, the Centre should underwrite the additional liability of concerned States according to an agreed formula between the Centre and States.
-The Commission is also of the view that financial obligations and its implications on State finances arising out of treaties and agreements should be a permanent term of reference to the Finance Commissions constituted from time to time.
-pre 1967: only symbolic role as dominance of congress.
-1967-72 : loss of congress in 8 states ,downfall of more than two dozen ministries giving rise to opportunistic alliances and political defections.As a result, the Governor's role became important as he had to balance the political considerations between the Centre and State and be as impartial as possible.
governor's role became controversial . and many also acted in that manner.
-Dr. B.R. Ambedkar:
The Governor under the Constitution has no functions which he can discharge by himself; no functions at all. While he has no functions, he has certain duties to perform .This Article (Article 167) certainly, it should be borne in mind, does not confer upon the Governor the power to overrule the Ministry on any particular matter. Even under this Article, the Governor is bound to accept the advice of the Ministry… This Article, nowhere, either in clause (a) or clause (b) or clause (c), says that the Governor in any particular circumstances may overrule the Ministry.
- Constituent assembly :
The Assembly also discussed the extent of discretionary powers to be allowed to the Governor. Following the decision to have a nominated Governor, references in the various Articles of the Draft Constitution relating to the exercise of specified functions by the Governor 'in his discretion' were deleted.
The only explicit provisions retained were those relating to Tribal Areas in Assam where the administration was made a Central responsibility. The Governor as agent of the Central Government during the transitional period could act independently of his Council of Ministers. Nonetheless, no change was made in Draft Article 143(now163), which referred to the discretionary powers of the Governor.
The Role of the Governor under the Constitution
The nature and scope of the duties of the Chief Minister and the corresponding rights and powers of the Governor are to be understood in the context of their respective roles and responsibilities under a Cabinet system of government as adopted in our Constitution. Under this system, the Governor as Constitutional
head of the State has "a right to be consulted, to warn and encourage" and his role is overwhelmingly that of "a friend, philosopher and guide" to his Council of Ministers.
Harmoniously with this role, the Governor also functions as a sentinel of the Constitution and a live link with the Union. The rationale of Article 167 is that by affording access to necessary information relating to the administration of the affairs of the State and the legislative proposals, it enables the Governor to discharge effectively this multi-faceted role.
The options available to the Governor under Article 167 give him persuasive and not dictatorial powers to override or veto the decisions or proposals of his Council of Ministers relating to the administration of the affairs of the State.
The Governor does not exercise the executive functions individually or personally. The State Government at various levels takes executive action in the name of the Governor in accordance with the rules of business framed under Article 166(3). Hence, it is the State Government and not the Governor who may sue or be sued in respect of any action taken in the exercise and performance of the powers and duties of
his office [Articles 361, 299(2) and 300].
The Governor enjoys the same privileges as the President does under Article 361 and he stands, in this respect, on the same footing.
In a very limited field, however, the Governor may exercise certain functions in his discretion, as provided in Article 163(1). The first part of Article 163(1) requires the Governor to act on the advice of his Council of Ministers. There is, however, an exception in the latter part of the clause in regard to matters where he is by
or under the Constitution required to function in his discretion.
The expression "required" signifies that the Governor can exercise his discretionary powers only if there is a compelling necessity to do so. It has been held that the expression "by or under the Constitution"
means that the necessity to exercise such powers may arise from any express provision of the Constitution or by necessary implication. We would like to add that such necessity may also arise from rules and orders made "under" the Constitution."
In other words, Article 163 does not give the Governor a general discretionary power to act against or without the advice of his Council of Ministers. The area for the exercise of his discretion is limited. Even this limited area, his choice of action should not be arbitrary or fanciful. It must be a choice dictated by reason, actuated by good faith and tempered by caution.
Role of Governor in Management of Centre-State Relations
One highly significant role which he (Governor) has to play under the Constitution is of making a report where he finds that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. The Governor is not amenable to the directions of the Government of India, nor is he accountable to them for the manner in which he carries out his functions
and duties. He is an independent constitutional office which is not subject to the control of the Government of India.
The Court in Rameshwar Prasad case affirmed the following views of the Sarkaria Commission that the Governor needs to discharge "dual responsibility" to the Union and the State. Further, most of the safeguards as regards the working of the Governor will be such as cannot be reduced to a set of precise rules of procedure or practice. This is so because of the very nature of the office and the role of the Governor.
The safeguards have mostly to be in the nature of conventions and practices, to be understood in their proper perspective and faithfully adhered to, not only by the Union and the State Governments but also by the political parties.
Appointment and Removal of Governors
The Sarkaria Commission recommended that a person to be appointed as a Governor should satisfy the following criteria:-
(i) He should be eminent in some walk of life.
(ii) He should be a person from outside the State.
(iii) He should be a detached figure and not too intimately connected with the local politics of the State; and
(iv) He should be a person who has not taken too great a part in politics generally and particularly in the recent past.
These recommendations were also reiterated by the Supreme Court in the Rameshwar Prasad case.
The words and phrases like "eminent", "detached figure", "not taken active part in politics" are susceptible to varying interpretations and parties in power at the Centre seem to have given scant attention to such criteria. The result has been politicization of Governorship and sometimes people unworthy of holding such high Constitutional positions are getting appointed.
The Commission is of the view that the Central Government should adopt strict guidelines as recommended in the Sarkaria report and follow its mandate in letter and spirit lest appointments to the high Constitutional office should become a constant irritant in Centre-State relations and sometimes embarrassment to the Government itself.
-Governors should be given a fixed tenure of five years and their removal should not be at the sweet will of the Government at the Centre. The phrase "during the pleasure of the President" in Article 156(i) should be substituted by an appropriate procedure under which a Governor who is to be reprimanded or removed for whatever reasons is given an opportunity to defend his position and the decision is taken in a fair and dignified manner befitting a Constitutional office.
-It might be pertinent to recall here that the Sarkaria Commission had called for a consultation process while appointing the Governor.94 This included consultation with the Chief Minister of the concerned state and the Commission recommended amending Article 155 for giving effect to this recommendation.
-need to prescribe qualifications for the appointment of the Governor
-NCRWC:in its consultation paper, went beyond the Sarkaria Commission's recommendations and suggested that Article 155 and 156 be amended and the appointment of the Governor should be entrusted to a committee comprising the Prime Minister of India, Union Minister for Home Affairs, Speaker of the Lok Sabha and the Chief Minister of the concerned State. It also suggested that the Vice-President also could be involved in the process. It opined that the composition of the committee is a matter of detail, which can always be settled once the principal idea is accepted. It observed that this would make the entire process a transparent and unambiguous one.
-The present Commission reiterates the qualifications criteria which each Governor must possess. It is however essential to ensure enforceability of such qualification criteria and this could be achieved by a suitable amendment to Article 157 of the Constitution. The Commission would recommend the following amendments to Article 157 of the Constitution to ensure the independence and dignity of the office:
(i) The Governor should, in the opinion of the President, be an eminent person;
(ii) The Governor must be a person from outside the concerned State;
(iii) The Governor should be a detached person and not too intimately connected with the local politics of the State. Accordingly, the Governor must not have participated in active politics at the Centre or State or local level for at least a couple of years before his appointment.
-The Sarkaria Commission recommended that the Governors' tenure of office of five years in a State should not be disturbed except very rarely and that too for some extremely compelling reason. A Governor who does not belong to that State takes time to get acquainted with the problems and aspirations of the people. The ever-present possibility of the tenure being terminated before the full term of 5 years, can create
considerable insecurity in the mind of the Governor and impair his capacity to withstand pressures, resist extraneous influences and act impartially in the discharge of his discretionary functions.100 However, the Sarkaria Commission declined to prescribe a procedure for removal of the Governor which is akin to impeachment of a Supreme Court judge
-This Commission is of the view that politicization of the office of Governor to an extent where his appointment is based on whims and fancies of the Central Government is not in keeping with the spirit of the Constitution. Accordingly, the following recommendations are made:
(i) The tenure of office of the Governor must be fixed, say for a period of 5 years;
(ii) The phrase "during the pleasure of the President" may be deleted from Article 156 of the Constitution. Even if the Governor is denied a fixed tenure of five years, his removal cannot be at the sweet will of the Central government. It must be for a reason which has relation to the discharge of functions of the
office of a Governor;
(iii) A provision may be made for the impeachment of the Governor by the State Legislature on the same lines as the impeachment of the President by the Parliament. (See Article 61 of the Constitution.) Such impeachment can be only in relation to the discharge of functions of the office of a Governor or
violations of the principles laid down in the Constitution. Where there is no Upper House of Legislature in any State, appropriate changes may have to be made in the proposed Article since Article 61 is premised upon the existence of two Houses of Parliament.
-This Commission agrees with the broad view that certain parameters must be put in place for those who have held the post of Governor. The Sarkaria Commission had recommended that as a matter of convention, the Governor, on demitting his office, should not be eligible for any other appointment or office of profit under the Union or a State Government except for a second term as Governor, or election as Vice-President or President of India. Such a convention should also require that after quitting or laying down his office, the Governor shall not return to active partisan politics. This recommendation is reiterated and must be brought into effect by way of a constitutional amendment.
The Constitutional scheme of governance at the Centre and in the States is provided in Part XI (Articles 245 to 263), and Part XII (Articles 264 to 298), Part XIII and Part XIV.
Broadly it deals with three types of relations namely
(a) Legislative Relations (Articles 245-255);
(b) Administrative Relations (Articles 256-263); and
(c) Financial Relations (Articles 264-293).
1.LEGISLATIVE RELATION : (very well elaborated in DDB)
The Scheme on legislative relations is largely based on the federal principle of "subsidiarity" .
Three Lists.
ISSUES :
PARLIAMENTARY SUPREMACY :
-ART 254 in effect that Parliament can repeal a State law at any time with respect to a matter in the Concurrent List, even if made with consent of President.
-Furthermore residuary powers of legislation is exclusively with the Union (Article 248).
-The supremacy of the Union in legislative matters is further clear from the extent of powers the Union enjoys to legislate on subjects in the State List under certain circumstances.
These include:
(i) Power of Parliament to legislate in national interest under a Resolution of the Upper House (Article 249)
(ii) Power of Parliament to legislate during operation of Emergency (Article 250)
(iii) Parliament's power to legislate with the consent of States (Article 252)
(iv) Legislation for giving effect to international treaties and agreements (Article 253)
(v) Power to legislate in case of failure of Constitutional machinery in States (Article 356)
POWER OF GOVERNOR
another issue in respect of legislative relations which caused friction between Centre and States is the power of Governor to reserve any Bill passed by the State Assembly for consideration of the President, sometimes for an indefinite period! A law adopted, sometimes more than once, by the Assembly can therefore become a law in the State only if assented by the President (Articles 200, 201).
2.ADMINISTRATIVE RELATION
The scheme is aimed to facilitate implementation of Union laws in States, achieving co-ordination for administrative efficiency, resolving disputes when they arise and to ensure that the Union intervenes whenever State is threatened by external aggression or internal disturbance.
The division of executive power is co-extensive with the division of legislative power of both the Governments (Article 73 and 162).
ISSUES
CENTER'S SUPREMACY : 257(1)
Article 257(1) says that the executive power of the State shall be so exercised as not to impede or prejudice the exercise of executive power of the Union.
The Centre is empowered to give directions to States in this regard. If directions are not complied, emergency provisions may be invoked by the Centre. The Constitution thus provides a coercive sanction against any disobedience of the Central directions by the States.
CONFLICT RESOLUTION OUTSIE COURT HAD LITTLE IMPACT :
ART 263 :MEETS RARELY AND HAS NOT BEEN EFFECTIE
ART 262
Informal methods outside the Constitutional scheme are often pressed into service to keep governance going despite the shortcomings.(thus formal methods become redundant ).
ROLE OF CENTER UNDER 73RD AND 74TH ACT:
The States which are supposed to make law in this regard have been slow in the matter of empowering Panchayats with functions, funds and functionaries. Meanwhile through Court interventions and otherwise, Panchayats have elected representatives who are not able to organize governance at local levels as expected.
There is a feeling that the existing arrangements need a fresh look to put the third level of governance back on rails to make democracy function.
3.FINANCIAL RLATION
The scheme of financial relations is another vexed issue which, in spite of the elaborate provisions on division of taxing powers and the intervention of the mechanism of the five-yearly Finance Commission, continue to be a friction point in Centre-State relations. The scheme contemplates complete separation of taxing powers
between the Union and the States, mechanism for sharing of revenue, and a system of grants-in-aid to bridge gap between fiscal capacity for administration and for making intergovernmental financial adjustments.
-While the taxes levied by the States are collected by them and entirely go to their Consolidated Fund, the taxes levied by the Centre are sharable with the States.
The distribution of revenues raised by Union is regulated through assignment, compulsory sharing, permissible sharing and grants-in-aid (Articles 268-281).
The method usually adopted to adjust the imbalances between the functions and financial resources of the two layers of governments in a federal system is the transfer of funds from Union to States.
While safeguarding the autonomy and stability of State Governments, the scheme of financial devolution must bring about financial equalization with a sense of fiscal responsibility and promote the welfare of the country as a whole.
A purely discretionary system is unacceptable in a federal framework. Therefore an independent agency like the Finance Commission is proposed to assess the changing needs of the States and imbalances between the richer and poorer States.
The borrowing powers of the Central and State Governments are regulated by Articles 292 and 293 under which States can borrow from sources outside India only with the prior consent of the Government of India.
Centre-State relations present a mixed picture of promise and performance far from its full potential. ?
democracy has taken deep roots.
federal system has shown capacity to give expression to subnational identities .
but coalition and instability or compromises .
regional power elite (on basis on caste etc) exert influence not always promotive of constitutional purposes.
new channels of transfering significant resourses not envisaged under constitution angered sates .
however all these cold have been mediated in parliament and assembly ,however it has declined over the years and issues are taken to courts or streets.
CHAPTER 2
ISSUES AND CONCERNS IN INTERGOVERNMENTAL RELATIONS
Key Concepts and Founding Principles:
Republicanism, rule of law, independent judiciary and guaranteed individual rights are inter-alia, inherent characteristics of the Indian Constitution.(later declared so by SC in (Kesavananda Bharathi v. Union of India AIR 1973 )
To achieve these objectives, parliamentary democracy and co-operative federalism have been adopted for structuring the Government.
Federal, Quasi-Federal or Unitary with Federal Features:
the very first Article stipulates that India shall be a Union of States, the fundamental feature of any federal set up.
The Constitution makers were convinced that pluralism and diversity of such dimensions which are captured in the idea of India could not be sustained excepting through a federal arrangement. In such setup wherein small , marginal , poor , weak live along with big, rich , strong responsibility of center naturally increases .
Naturally, the financial-fiscal aspects of Centre-State relations became the most important of all issues between the Centre and the States.
Constitution is an instrument of governance and the structure has to be accepted as it is, rather than trying to equate it with federal structures elsewhere.
CHAPTER 3:
LEGISLATIVE RELATIONS BETWEEN THE UNION AND STATES
Evolution of Legislative Relations
ACT OF 1919 ,1935(NEVE CAME IN OP) .
SITUATION AT TIME OF INDEPENDENCE.
NEED FOR COOPER. AND SHARED RESPO
TO ACCOMODATE ALL.
MODELS:
The American Constitution specifically enumerates the powers of the Federal Government and leaves the rest to the States.(ALSO AUSTRALIA)
However the Canadian Constitution adopted a three-fold enumeration of powers in the scheme of distribution between the Union and the Provinces.
WE FOLLOWED GOI AC 1935 .
Views of States, Union and Political Parties on Legislative Relations
the Union has enriched its powers at the cast of the States. This has weakened the federal structure.
It was their view that the case for centralization which existed at the time of framing the Constitution does not exist anymore and what is needed now is a conscious policy for strengthening the States by enriching the State List and following the principle of "Subsidiarity".
the Sarkaria Commission found some merit on the grievance of States and recommended some changes not so much in the scheme but in the way the power is exercised.
(i) In matters of concurrent or overlapping jurisdiction, a process of mutual consultation and co-operation has to be put in place to achieve co-ordination of policy and action. It must be evolved as a convention or rule of practice rather than a rigid Constitutional requirement.
(ii) 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 for State action within the broad framework of the policy laid down by the Union Law.
Furthermore, whenever the Union proposes to legislate on a matter in the Concurrent List, there should
be prior consultation. A resume of the views of the State Governments and the comments of the Inter-State Council should accompany the Bill when it is introduced in Parliament.
(iii) Residuary powers (now exclusively with the Union) excepting matters relating to taxation, should be placed in the Concurrent List .
The Venkatachaliah Commission5 also found the scheme of division of powers justified.
It however felt that the grievances of States are more directed at the manner in which the Union exercised its powers.
The existing arrangements in this regard require institutionalization through the Inter-State Council by a continuing auditing role for the Inter-State Council in the management of matters in Concurrent or overlapping jurisdiction.
The Council, if found necessary, may use an independent mechanism like a Committee of State Ministers to thrash out contentious issues in the Bill so that there is a measure of support among the States to the
administrative and fiscal arrangements the Bill ultimately proposes to Parliament. It is important that the record of proceedings in the Council/Committee including views of States is made available to Parliament while introducing the Bill on Concurrent List subjects.
Transfer of Entries in the Lists, from List II to List III
ART 368(2) : Empowers parliament to unilaterally limit legislative field of states .
In a federal system, the existence of the power in the Union does not by itself justify its exercise and it is the considered view of the Commission that the Union should be extremely restrained in asserting Parliamentary supremacy in matters assigned to the States.
For that :
Greater flexibility to States in relation to subjects in the State List and "transferred items" in the Concurrent List .
In respect of transferring matters from the State List to the Concurrent List the mechanism provided under Article 368 clause (2) is robust and sufficiently consultative that it does not pose any threat to Centre-State relations. It cannot happen unilaterally without the support and co-operation of states.
--->adequate consultation among stakeholders and through Inter-State Council should precede introduction of such proposals in Parliament.
---->In this context, it is worthwhile to examine through a joint institutional mechanism whether the administration of the relevant subject under the Central law (on the transferred subject) has achieved the objects and whether it is desirable to continue the arrangement as an occupied field limiting thereby the exclusive jurisdiction of the States. If the findings are not positive it may be worthwhile to consider restoration of the item to its original position in State List in the interest of better Centre-State relations.
--->Such a step hopefully will encourage the States to devolve the powers and functions on that subject to the Panchayats and Municipalities as stipulated in Parts IX and IX-A of the Constitution.
Thus In short, the Commission is of the opinion that the Union should occupy only that much of subjects in concurrent or overlapping jurisdiction which is absolutely necessary to achieve uniformity of policy in demonstrable national interest.
Thus
firstly state should have greater autonomy in state list .(and union should be very cautious here)
secondly in concurrent union should occupy only that what is neccessary for uniformity in policy and in national interest .
thirdly even this is to be done by proper consultation of all stakeholder and views of states should be attached to bill .
ISC has greater role in this.
There was a view expressed in favour of drawing up a fourth List to be called the Panchayat List. The Commission is of the view that it is too early to consider such a proposal and there are practical difficulties in adopting such a course however desirable it be.
Representation of States and Panchayats/Municipalities in the Council of States (Rajya Sabha)
Two proposition
firstly , uniformity in representation of states and secondly give representation to 3rd tier in highest legislative body .
RS in cuurent form is particularily biased towards large states .
The Sarkaria Commission which examined the issue at length was not in favour of changing the structure of Rajya Sabha in favour of equal representation of States as it found the Upper House not exclusively representing the federal principle excepting in relation to the special powers under Articles 249 and 312.
Equal representation of States was discussed and rejected by the Constitution makers and Sarkaria Commission found the reasons valid in the present situation as well.
On the other hand, Sarkaria Commission was in favour of strengthening the special role of the Rajya Sabha as an instrument for effective representation of the view points of the States. It is a matter of re-designing procedures of the House rather than its composition.
Bills Reserved for President's Consideration
Art200 provides 4 courses to governor : assent , withhold , keep for prez , return (it is non justiciable right)
Art 201no timelimit for prez to act so it can be misused for political consideration. However in same art there is time limit of 6 months if bill is returned for consideration of states .
Also this is said to be unwarranted invasion in legislative power of states .
Allowing the democratic will of the State Legislature to be thwarted by Executive fiat is questionable in the context of 'basic features' of the Constitution.
The time limit of 6 months should also be applicable to prez to declare assent or withhold .
If the President, for any reason, is unable to give his assent, it may be desirable for the President to make a reference to the Supreme Court under Article 143 for an opinion before finally making up his mind on the issue. This will avoid allegations of bias while securing the dignity and authority of the House. Again this can be accomplished as a matter of practice or convention rather than through amendment of the Constitution.
Treaty Making Power, International Law and Legislative Relations
INTRODUCTION
union executin international treaty etc even in matters of state list.(states say that it leads to erosion of legislative competance of states).
Before independence it was prerogative of monarch till 1935 afterwards GGI.
Art 73 says entering and implementing such treaties is prerogative of center.
Articles 737 and 246(1), read in conjunction with the relevant items on the Union List, gives the Union Executive all the powers necessary to negotiate, enter into, and ratify, treaties. Entries 13, 14, 15 and 16 in the Union List are relevant in this regard, particularly Entry 14. They read as follows:
13. Participation in international conferences, Associations and other bodies and implementing of decisions made thereat.
14. Entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries.
15. War and peace.
16. Foreign jurisdiction.
Article 253 of the Constitution provides that notwithstanding any distribution of legislative power under Article 246, the Parliament has the power to enact legislations to give effect to treaties and international agreements8.
Treaty making power is an aspect of external sovereignty and the Preamble declares India as a sovereign country. but given the fact that the Constitution provides for a federal structure and guaranteed rights, Courts can impose restrictions on this power.
A treaty, for instance, cannot make provisions which would, in effect, amend the basic features of the Constitution, for it could not have been intended that a power conferred by the Constitution would, without an amendment to the Constitution, alter or destroy the Constitution .
Ram Jawaya Kapur case the Supreme Court made it clear that the Indian Constitution permits the executive to negotiate treaties
Justice Shah in the important case of Maganbhai Ishwarbhai Patel v. Union of India:
Distinguished between power to parliament under 253(legislative ) and power to executive under 73(executive ) :
If, in consequence of the exercise of executive power, rights of the citizen or others are restricted or infringed, or laws are modified, the exercise of power must be supported by legislation: where there is no such restriction, infringement of the right or modification of the laws, the executive is competent to
exercise the power."
Though the Parliament is vested with the power to enact laws in relation to the entering into and negotiation of treaties, no law in this regard has been enacted till date. Therefore, Parliamentary approval for every treaty is not the norm. The States can however consult with the federal government through the Inter-State Council
on all issues including treaties.
Parliamentary Proposals for Change (there has been many)
Recommendations of the National Commission to Review the Working of the Constitution (2001)
---> first thing that should be done by Parliament is to make a law on the subject of "entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with
foreign countries" as contemplated by Entry 14 of List I of the Seventh Schedule to the constitution.
The law should regulate the 'treaty-making power' .
--->There is an urgent and real need to democratise the process of treaty making. Under our constitutional system, it is not the prerogative of the Executive. It is a matter within the competence of Parliament and it should exercise that power in the interest of the State and its citizens. In a democracy like ours, there is no room for non-accountability.
--> The power of treaty-making is so important and has such far-reaching consequences to the people and to our polity that the element of democratic accountability should be introduced into the process.
--->besides accountability, the exercise of power must be open and transparent (except where secrecy is called for in national interest).
--->The said power can no doubt be given only to the Union Executive and none else but then the law must clearly delineate the exercise of the power. In particular, it must provide for clear and meaningful involvement of Parliament in treaty-making. As has been done in some countries, there must be constituted a committee of Parliament to whom every treaty/agreement/convention proposed to be signed and/or proposed to be ratified shall be referred.
--->While placing the draft/signed treaty before such committee, a statement setting out the important features of the treaty/agreement, reasons for which such treaty/agreement is proposed to be entered into, the impact of the treaty/agreement upon our country and upon our citizens, should be clearly and fully set out. The committee must decide within four weeks of such reference whether the treaty should be allowed to
be signed by the Union Executive without referring the matter for consideration to Parliament or whether it should be referred to Parliament for consideration.
---> it would equally be desirable if the law made by the Parliament categorises the treaties/agreements/ conventions/ covenants viz.,
(a) those that the executive can negotiate and conclude on its own and then place the same before both Houses of Parliament by way of information. In this category may be included simple bilateral treaties and agreements which do not affect the economy or the rights of the citizens;
(b) those treaties etc. which the executive can negotiate and sign but shall not ratify until they are approved by the Parliament. Here again, a sub categorisation can be attempted: Some treaties may be made subject to approval by default (laying on the table of the House for a particular period) and others which must be made
subject to a positive approval by way of a resolution;
(c) important, multi-lateral treaties concerning trade, services, investment, etc. (e.g. recent Uruguay round of treaties/agreements signed in 1994 at Marrakesh), where the Parliament must be involved even at the stage of negotiation.
--->The law made by Parliament must also provide for consultation with affected group of persons, organizations and stake-holders, in general. This would go to democratize further the process of treaty
making.
Treaty Making in Other Federal Systems
(i) Argentina
Argentina is a federation with a bicameral Parliament, known as the National Congress. The Executive is comprised of the President, Vice-President and the Cabinet. The President is elected by an electoral college, which is itself elected by the direct vote of the people. The President appoints the Cabinet.
-the President has the power to conclude and sign treaties. The Congress has no power to initiate treaty
negotiations, nor can it interfere with such negotiations.
-the Congress shall have power to approve or reject treaties concluded with other nations.
The Constitution does not specify the method of approval. In practice, the Congress has approved treaties by passing a law. It uses the same procedure as for any other law, except that it deals with the treaty as a whole, rather than by clauses. The treaty is not ratified until the law has been promulgated and published in the Official Bulletin.
Canada
The Canadian Governor-General, on the advice of the Executive, now exercises the treaty making power.
The Canadian Provinces have the power to enter into international agreements, which do not have treaty status, and therefore are not considered binding in international law.
There is no legal requirement for the Parliament to give its approval before a treaty is ratified. Nevertheless, it has been the practice of Canadian Governments to seek parliamentary approval of important treaties. Parliamentary approval is given by way of a resolution of both Houses, rather than the passage of legislation.
Treaties are not self-executing in Canada.
United Kingdom
The Government may negotiate, conclude, construe, observe, breach, repudiate or terminate a treaty. Parliament may alter the laws of the United Kingdom. The courts must enforce those laws; judges have no power to grant specific performance of a treaty or to award damages against a sovereign state for breach of a treaty or to invent laws or misconstrue legislation in order to enforce a treaty."
United States of America
-the President shall have power, by and with the advice and consent of the Senate to make treaties, provided two-thirds of the Senators present concur.
-no State shall enter into any treaty, alliance or confederation.
-requires approval by two-thirds of the Senate, before the President can ratify a treaty.
-There is no requirement to consult the House of Representatives.
- In practice, a treaty is negotiated by the Executive, and is only sent to the Senate for approval once it is finalised.
Drafting a Central Legislation for Treaty Making
Article 253 of the Constitution, Parliament has the power to enact legislations to give effect to treaties and international agreements. However, unlike United States Constitution, the Indian Constitution contains no provision for a ratification of treaties by Parliament. This has meant that the Union executive has wide powers with respect to treaty making powers.
In view of the vastness and plenary nature of the treaty making powers with the Union Government notwithstanding the scheme of legislative relations between the Union and States (Article 253), the Commission recommends that Parliament should make a law on the subject of Entry 14 of List I (treaty making and implementing it through Parliamentary legislation) to streamline the procedures involved. The exercise of the power obviously cannot be absolute or unchartered in view of the federal structure
of legislative and executive powers. Several states have expressed concern and wanted the Commission to recommend appropriate measures to protect States' interests in this regard. The Commission recommends that the following aspects may be incorporated in the Central law proposed on the subject of Entry 14 of List I:
-there cant be a uniform process for all kind of treaties , but there is need of legislation to regulate treaty making power .
-Agreements which largely relate to defense, foreign relations etc. which have no bearing on individual rights or rights of States of the Indian Union can be put in a separate category on which the Union may act on its own volition independent of prior discussion in Parliament. However, it is prudent to refer such agreements to a Parliamentary Committee concerned with the particular Ministry of the Union Government before it is ratified.
-Other treaties which affect the rights and obligations of citizens as well as those which directly impinge on subjects in State List should be negotiated with greater involvement of States and representatives in Parliament. This can assume a twofold procedure. Firstly, a note on the subject of the proposed treaty and the national interests involved may be prepared by the concerned Union Ministry and circulated
to States for their views and suggestions to brief the negotiating team. Secondly, an "Empowered Committee" of concerned Ministers of States and the Centre be asked to study the provisions of the agreement and recommend to Government to ratify the treaty in whole or conditionally with reservations on certain provisions.
-There may be treaties or agreements which, when implemented, put obligations on particular States affecting its financial and administrative capacities. In such situations, in principle, the Centre should underwrite the additional liability of concerned States according to an agreed formula between the Centre and States.
-The Commission is also of the view that financial obligations and its implications on State finances arising out of treaties and agreements should be a permanent term of reference to the Finance Commissions constituted from time to time.
CHAPTER 4
ROLE OF GOVERNOR AND CENTRE-STATE RELATIONS
Introduction-pre 1967: only symbolic role as dominance of congress.
-1967-72 : loss of congress in 8 states ,downfall of more than two dozen ministries giving rise to opportunistic alliances and political defections.As a result, the Governor's role became important as he had to balance the political considerations between the Centre and State and be as impartial as possible.
governor's role became controversial . and many also acted in that manner.
-Dr. B.R. Ambedkar:
The Governor under the Constitution has no functions which he can discharge by himself; no functions at all. While he has no functions, he has certain duties to perform .This Article (Article 167) certainly, it should be borne in mind, does not confer upon the Governor the power to overrule the Ministry on any particular matter. Even under this Article, the Governor is bound to accept the advice of the Ministry… This Article, nowhere, either in clause (a) or clause (b) or clause (c), says that the Governor in any particular circumstances may overrule the Ministry.
- Constituent assembly :
The Assembly also discussed the extent of discretionary powers to be allowed to the Governor. Following the decision to have a nominated Governor, references in the various Articles of the Draft Constitution relating to the exercise of specified functions by the Governor 'in his discretion' were deleted.
The only explicit provisions retained were those relating to Tribal Areas in Assam where the administration was made a Central responsibility. The Governor as agent of the Central Government during the transitional period could act independently of his Council of Ministers. Nonetheless, no change was made in Draft Article 143(now163), which referred to the discretionary powers of the Governor.
The Role of the Governor under the Constitution
The nature and scope of the duties of the Chief Minister and the corresponding rights and powers of the Governor are to be understood in the context of their respective roles and responsibilities under a Cabinet system of government as adopted in our Constitution. Under this system, the Governor as Constitutional
head of the State has "a right to be consulted, to warn and encourage" and his role is overwhelmingly that of "a friend, philosopher and guide" to his Council of Ministers.
Harmoniously with this role, the Governor also functions as a sentinel of the Constitution and a live link with the Union. The rationale of Article 167 is that by affording access to necessary information relating to the administration of the affairs of the State and the legislative proposals, it enables the Governor to discharge effectively this multi-faceted role.
The options available to the Governor under Article 167 give him persuasive and not dictatorial powers to override or veto the decisions or proposals of his Council of Ministers relating to the administration of the affairs of the State.
The Governor does not exercise the executive functions individually or personally. The State Government at various levels takes executive action in the name of the Governor in accordance with the rules of business framed under Article 166(3). Hence, it is the State Government and not the Governor who may sue or be sued in respect of any action taken in the exercise and performance of the powers and duties of
his office [Articles 361, 299(2) and 300].
The Governor enjoys the same privileges as the President does under Article 361 and he stands, in this respect, on the same footing.
In a very limited field, however, the Governor may exercise certain functions in his discretion, as provided in Article 163(1). The first part of Article 163(1) requires the Governor to act on the advice of his Council of Ministers. There is, however, an exception in the latter part of the clause in regard to matters where he is by
or under the Constitution required to function in his discretion.
The expression "required" signifies that the Governor can exercise his discretionary powers only if there is a compelling necessity to do so. It has been held that the expression "by or under the Constitution"
means that the necessity to exercise such powers may arise from any express provision of the Constitution or by necessary implication. We would like to add that such necessity may also arise from rules and orders made "under" the Constitution."
In other words, Article 163 does not give the Governor a general discretionary power to act against or without the advice of his Council of Ministers. The area for the exercise of his discretion is limited. Even this limited area, his choice of action should not be arbitrary or fanciful. It must be a choice dictated by reason, actuated by good faith and tempered by caution.
Role of Governor in Management of Centre-State Relations
One highly significant role which he (Governor) has to play under the Constitution is of making a report where he finds that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. The Governor is not amenable to the directions of the Government of India, nor is he accountable to them for the manner in which he carries out his functions
and duties. He is an independent constitutional office which is not subject to the control of the Government of India.
The Court in Rameshwar Prasad case affirmed the following views of the Sarkaria Commission that the Governor needs to discharge "dual responsibility" to the Union and the State. Further, most of the safeguards as regards the working of the Governor will be such as cannot be reduced to a set of precise rules of procedure or practice. This is so because of the very nature of the office and the role of the Governor.
The safeguards have mostly to be in the nature of conventions and practices, to be understood in their proper perspective and faithfully adhered to, not only by the Union and the State Governments but also by the political parties.
Appointment and Removal of Governors
The Sarkaria Commission recommended that a person to be appointed as a Governor should satisfy the following criteria:-
(i) He should be eminent in some walk of life.
(ii) He should be a person from outside the State.
(iii) He should be a detached figure and not too intimately connected with the local politics of the State; and
(iv) He should be a person who has not taken too great a part in politics generally and particularly in the recent past.
These recommendations were also reiterated by the Supreme Court in the Rameshwar Prasad case.
The words and phrases like "eminent", "detached figure", "not taken active part in politics" are susceptible to varying interpretations and parties in power at the Centre seem to have given scant attention to such criteria. The result has been politicization of Governorship and sometimes people unworthy of holding such high Constitutional positions are getting appointed.
The Commission is of the view that the Central Government should adopt strict guidelines as recommended in the Sarkaria report and follow its mandate in letter and spirit lest appointments to the high Constitutional office should become a constant irritant in Centre-State relations and sometimes embarrassment to the Government itself.
-Governors should be given a fixed tenure of five years and their removal should not be at the sweet will of the Government at the Centre. The phrase "during the pleasure of the President" in Article 156(i) should be substituted by an appropriate procedure under which a Governor who is to be reprimanded or removed for whatever reasons is given an opportunity to defend his position and the decision is taken in a fair and dignified manner befitting a Constitutional office.
-It might be pertinent to recall here that the Sarkaria Commission had called for a consultation process while appointing the Governor.94 This included consultation with the Chief Minister of the concerned state and the Commission recommended amending Article 155 for giving effect to this recommendation.
-need to prescribe qualifications for the appointment of the Governor
-NCRWC:in its consultation paper, went beyond the Sarkaria Commission's recommendations and suggested that Article 155 and 156 be amended and the appointment of the Governor should be entrusted to a committee comprising the Prime Minister of India, Union Minister for Home Affairs, Speaker of the Lok Sabha and the Chief Minister of the concerned State. It also suggested that the Vice-President also could be involved in the process. It opined that the composition of the committee is a matter of detail, which can always be settled once the principal idea is accepted. It observed that this would make the entire process a transparent and unambiguous one.
-The present Commission reiterates the qualifications criteria which each Governor must possess. It is however essential to ensure enforceability of such qualification criteria and this could be achieved by a suitable amendment to Article 157 of the Constitution. The Commission would recommend the following amendments to Article 157 of the Constitution to ensure the independence and dignity of the office:
(i) The Governor should, in the opinion of the President, be an eminent person;
(ii) The Governor must be a person from outside the concerned State;
(iii) The Governor should be a detached person and not too intimately connected with the local politics of the State. Accordingly, the Governor must not have participated in active politics at the Centre or State or local level for at least a couple of years before his appointment.
-The Sarkaria Commission recommended that the Governors' tenure of office of five years in a State should not be disturbed except very rarely and that too for some extremely compelling reason. A Governor who does not belong to that State takes time to get acquainted with the problems and aspirations of the people. The ever-present possibility of the tenure being terminated before the full term of 5 years, can create
considerable insecurity in the mind of the Governor and impair his capacity to withstand pressures, resist extraneous influences and act impartially in the discharge of his discretionary functions.100 However, the Sarkaria Commission declined to prescribe a procedure for removal of the Governor which is akin to impeachment of a Supreme Court judge
-This Commission is of the view that politicization of the office of Governor to an extent where his appointment is based on whims and fancies of the Central Government is not in keeping with the spirit of the Constitution. Accordingly, the following recommendations are made:
(i) The tenure of office of the Governor must be fixed, say for a period of 5 years;
(ii) The phrase "during the pleasure of the President" may be deleted from Article 156 of the Constitution. Even if the Governor is denied a fixed tenure of five years, his removal cannot be at the sweet will of the Central government. It must be for a reason which has relation to the discharge of functions of the
office of a Governor;
(iii) A provision may be made for the impeachment of the Governor by the State Legislature on the same lines as the impeachment of the President by the Parliament. (See Article 61 of the Constitution.) Such impeachment can be only in relation to the discharge of functions of the office of a Governor or
violations of the principles laid down in the Constitution. Where there is no Upper House of Legislature in any State, appropriate changes may have to be made in the proposed Article since Article 61 is premised upon the existence of two Houses of Parliament.
-This Commission agrees with the broad view that certain parameters must be put in place for those who have held the post of Governor. The Sarkaria Commission had recommended that as a matter of convention, the Governor, on demitting his office, should not be eligible for any other appointment or office of profit under the Union or a State Government except for a second term as Governor, or election as Vice-President or President of India. Such a convention should also require that after quitting or laying down his office, the Governor shall not return to active partisan politics. This recommendation is reiterated and must be brought into effect by way of a constitutional amendment.
No comments:
Post a Comment