Union State Relations and Federal system ( Part -3)
In addition to thegeneral power of the Union to give directions to the States, the Constitution wants -every State (under Article 257) not to impede or prejudice the executive power of the Union in the State.
If any Union agency finds it difficult to function within a State, the Union Executive is empowered to issue appropriate directions to the State Government to remove all obstacles. The Union's power of giving directions in this regard includes certain specific matters such as:
The Constitution also empowers the Union Executive, with the consent of the Government of a State, to entrust to that Government or its officers functions which fall within the scope of the Union's executive functions.The Union Government will pay to the State the cost involved in the discharge of functions by the States or its officers.
To facilitate the smooth working of the administrative machinery of the country as a whole as well as to ensure the better co-ordination of policy and action between the Union and the States or between the States themselves, the Constiftition empowers the President to appoint an interstate Council whenever the necessity is felt. The Council is charged with the following three specific duties:
The President is empowered not only to establish such a Council but also to determine its organisation and procedure and to define the nature of its duties. In accordance with this provision an I Inter-State Council w'as established by Parliament in 1990.(Read ahead)
Apart from the above, Centre can give directions to states on the following matters too:
If the directions of the centre are not followed by a state, Art.365 allows the central government to invoke Art.356 and take over the state administration under the President of India.
Entering into treaties and agreements with foreign powers is one of the attributes of State sovereignty. No State can insulate itself from the rest of the world whether it be in the matter of foreign relations, trade, commerce, economy, communications, environment or ecology. The advent of globalization and the enormous advances made in communication and information technology have rendered independent States more inter-dependent. Article 246 (1) read with Entry 14 of List I- Union List of the Seventh Schedule empowers Parliament to make laws with respect to “entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries”. As per the provisions contained in article 253, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body. This article (article 253), therefore, overrides the distribution of legislative powers provided for by article 246 read with Lists in the Seventh Schedule to the Constitution.
The ratification of treaty is done by the Union Cabinet. Parliament has the power to discuss and has no say in the approval.
NCRWC recommends that for harmonious/ federalism and for expeditious decision-making on important issues involving States, prior consultation by the Union Government with the interstate Council may be considered before signing any treaty vitally affecting the interests of the States regarding matters in the State List. For example, LBA and Teesta river water sharing with Bangladesh.
River Water Disputes India
The Seventh Schedule to the Constitution contains the legislative powers of federal and state governments. Water is a state subject and is included as entry 17 in list 2 (i.e., subject matters for state legislation). This entry reads: "Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of Entry 56 of List I". The role of federal government is stipulated in entry 56 of List 1: ’"'Regulation and development of inter-State rivers and river valleys to the extent to whteh such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest".
When a “Water dispute” arises between two or more state governments , the following is the procedure to resolve the same:
Article 262 of the constitution empowers the Parliament to make laws for the adjudication of inter-state water disputes. That article also permits the Parliament tmexclude such disputes from being referred to the Supreme Court.
The Inter States Water Disputes (JSWD) Act, 1956, was enacted by the Parliament to deal with inter-state water disputes. Government of India can set up a tribunal to settle such a dispute when one or more riparian states of an inter-state is/are of the opinion that,their interests are (or are likely to be) affected by actions or plans of other states, they can request the government of India to constitute a tribunal under the Act. Within one year of receiving such a request and when convinced that such dispute cannot be resolved through negotiations, the government of India shall constitute a tribunal to hear the disputes concerning claims of water sharing and adjudicate an award. Such a tribunal should have three members who should be judges of the supreme court or the high court and are appointed in consultation with the Chief Justice of India; the government of India can appoint up to two assessors to assist the tribunal; after considering all the aspects as may be necessary, the tribunal gives its report to the government of India; if the riparian states or the government of India need any clarification, they can apply seeking such clarification from the tribunal within 90 days; the tribunal may give further clarifications. Then the report, called award, is published by the government of India in the official gazette. Once it is. published, the award is binding on all the parties and it is deemed equivalent to an order or decree of the Supreme Court. The act also empowers the central government to make schemes and constitute an authority to implement the tribunal's award.
So far, five Inter-state water disputes tribunals have been constituted
Changes in the 1956 Act made in 2002 by Parliament
The following provisions were introduced through an amendment'to the 1956 Act in 2002
River Boards Act, 1956.
In order to promote integrated and optimum development of waters of inter-state rivers and river valleys, under Entry 56 of List-1 of the Constitution( Union List), Parliament enacted the River Boards Act, 1956. The Act contemplated the appointment of river boards by the central government in consultation with the state governments. These boards are expected^to promote development of irrigation, drainage, water supply, flood control and hydro-electric power.
The Babhli barrage, built over River Godavri, stands in Maharashtra's Nanded district And it has become the flashpoint of the water wars between Maharashtra and Andhra Pradesh.
The Babhli dam will help irrigate 8000 hectares in "Nanded, and provide drinking water to nearly 60 villages and towns. Maharashtra's gain will come at a cost, argues the Andhra Pradesh government. It says six districts will turn into a desert. The Godavari flows from Nanded into the Sriramsagar project in Nizamabad district of Andhra Pradesh. The distance between Babhli and Sriramsagar is just 10 km and because of the proximity, unless Babhli releases water, Sriramsagar, which is the lifeline of north Telangana, will dry up.
Babhli Dam: A history of controversy
Mahadayi Water Disputes Tribunal
Mahadayi (Mandovi) river originates in Karnataka state, flows 29 km through the State and passes through Maharashtra and Goa where its length is 52 km, before reaching the Arabian Sea.Karnataka had planned to utilise 7.6 tmc feet of water from Kalasa and Banduri tributaries of Mahadayi to meeting drinking water scarcity in around 100 areas of northern Karnataka, ' including Hubli and Dharwad.Objection from Goa is the basis of the controversy. Goa had opposed the project claiming that Mahadayi was a deficit basin and water diversion would impact on the environment in the basin.
Article 262 and Inter-State Water Disputes Act (1SWDA), 1956 provide a legal and constitutional mechanism for adjudication of water disputes between the states in India. .
The Government of Goa requested for setting up of an Inter-State Water Disputes Tribunal under the Inter-State Water Disputes Act, 1956 for resolution of the dispute.
The Union Government in 2009 approved the proposal for constitution of Mahadayi Water Disputes Tribunal consisting of a Chairman and two Members nominated in this behalf by the Chief Justice of India from among the persons who at the time of such nomination are Judges of the Supreme Court or High Court.
The Mahadayi Water Disputes Tribunal would adjudicate the water dispute between the State of Goa and Karnataka.
Cauvery and related issues to be discussed in the class Inter State Council
The Inter-State Council was set up under Article 263 of the Constitution of India vide Presidential Order dated the May 28, 1990.
Prime Minister is the head of the ISC and the composition includes the Chief Ministers of all States, Chief M inisters of Union territories haying Legislative Assemblies and Administrators of Union territories not having Legislative Assemblies, Governors of States under President's Rule, six Ministers of Cabinet rank in the Union Council of Ministers to be nominated by the Prime Minister and two Ministers of Cabinet rank in the Union Council of Ministers to be nominated . by the Prime Minister as permanent invitees.
Art.263 reads as follows:
If at any time it appears to the President that the public interests would be served by the establishment of a Council charged with the duty of-
it shall be lawful for the President by order to establish such a Council, and to define the nature of the duties to be performed by it and its organisation and procedure.
The Council in its first meeting in 1990 had considered the recommendations made by'the Sarkaria Commission on Centre-State Relations. Keeping in view the complexities of the issues involved and their wider implications, it was decided by the Council that the recommendations would be first examined by a Sub-committee of the Council and thereafter considered by the Council. |n its second meeting, the Council broadly endorsed the recommendations of the Sarkaria Commission as finalised by the Sub-committee. In the same meeting, the Inter-State Council decided to set up a Standing Committee for having continuous consultation and processing of all matters for consideration of the Inter-State Council. Accordingly the Standing Committee was set up in 1996.
The Inter-State Council has held ten meetings so far and has taken important decisions on 171 of the 247 recommendations of the Sarkaria Commission. Some of the major decisions of the Council are as follows
The Ninth ISC meet was held in mid-2005 with the theme of good governance and last meeting was in 2006.
ISC is the only Constitutional body to deal with federal issues and disputes, apart from the Supreme Court and the river water dispute panels set up under Art.262.
The idea of creation of Zonal Councils was mooted by the first Prime Minister of India, Pandit Jawahar Lai Nehru in 1956 when during the course of debate on the report of the States Reorganisation Commission, he suggested that the States proposed to be reorganised may be grouped into four or five zones having an Advisory Council "to develop cooperative working” among these States. This suggestion was made by Pandit Nehru at a time when linguistic reorganization led to bitterness and hostilities.As a remedy to this situation, it was suggested that a high level advisory forum should be set up to m inimise the impact of these hostilities and to create healthy inter-State and Centre-State environment with a view to solving inter-State’ problems and fostering balanced socio economic development of the respective zones. There are five zonal councils
The seven North Eastern States i.e, (i) Assam (ii) Arunachal Pradesh (iii) Manipur (iv) Tripura (v) Mizoram (vi) Meghalaya and (vii) Nagaland are not included in the Zonal Councils and their special problems are looked after by the North Eastern Council, set up under the North Eastern Council Act, 1972. Sikkim was added to the NEC recently.
The Zonal Council for each zone consists of the following members :
Further the Zonal Council for each zone has the following persons as Advisers to assist the Councilin the performance of its duties :
Union Ministers are also invited to participate in the meetings of the Zonal Councils depending upon necessity. The union home minister is the chairman of each of these councils. . The Chief Ministers of the States included in each zone act as Vice Chairman of the Zonal Council for that zone by rotation, each holding office for a period of one year at a time.
Each Zonal Council has set up a Standing Committee consisting of Chief Secretaries of the member States of their respective Zonal Councils. These Standing Committees meet from time to time to resolve the issues or to do necessary ground work for further meetings of the Zonal Councils. Senior Officers of the Planning Commission and other Central Ministries are also associated with the meetings depending upon necessity. The Secretariat explores centre-State, inter-State and zonal issues which are to be deliberated by the Councils or the Standing Committees.
The Zonal Councils provide an excellent forum where irritants between Centre and States and amongst States can be resolved through discussions and consultations. Being advisory bodies, there is full scope for free exchange of views in their meetings. Though there are a large number of other fora.like the National Development Council, Inter. State Council, Governor’s/Chief Minister’s Conference and other periodical high level conferences held under the auspices of the Union Government, the Zonal Councils are different, both in content and character. They are regional fora of cooperative endeavour for States linked with each other economically, politically and culturally. Being small and high level bodies, specially meant for looking after the interests of respective zones, they are capable of focussing attention on specific issues taking into account regional factors while keeping the national perspective in view.
The main objectives of setting up of Zonal Councils are as under:
Broadly these Councils are expected to : /
Promote a cooperative approach to facilitate economic and social planning and the execution of development schemes particularly inter-State projects;
The scope of functions of these Zonal Councils is very wide, as they can discuss any matter in which some or all of the States represented in that Council, or the Union and one or more of the States represented in that Council, have a common interest. These Councils have been set up with the objective to provide a common meeting ground in each zone for ensuring resolution of Inter-State problems, fostering balanced regional development and building harmonious Centre- State Relations.
The issues that were discussed in the meetings of the Zonal Councils included internal security, police modernization, communal harmony and disaster management,coastal security, narcotics control,naxalism, river water sharing, woman and child trafficking and farmers’ suicides .The criticism is that the Zonal Councils do not meet as frequently as it may be required.
Eastern Zonal Council meeting 2013
The 20th meeting of Eastern Zonal Council, comprising of the States of West Bengal, Gdisha, Bihar and Jharkhand, was held at Kolkata in April. Shri Sushilkumar Shinde, Union Home Minister chaired the meeting which was hosted by the Chief Minister of West Bengal. Governor of Jharkhand attended the meeting.
Ms. Mamata Banerjee, Chief Minister highlighted fhe strategic location of the States of the Eastern region and emphasised the need for enhanced cooperation and coordination among the member States on various issues of common importapce. The Union Home Minister explained the recent initiatives taken for strengthening the mechanism for Centre-State and Inter State cooperation. He emphasised the need for more frequent meetings of the Council to resolve various issues among the States of the region.
The Governor of Jharkhand and Ministers from the States of Odisha and Bihar raised various issues, such as, sharing of information and intelligence, use of national resources like, water, minerals etc, common border check posts, and suggested various mechanisms for strengthening cooperation among the States of the region.
The meeting discussed various important issues, such as, internal security, problems of naxalism, communal harmony'safety on the national highways, use and distribution of coal and other natural resources^ allotment of land for CRPF to establish battalion camping sites, matters related to police administration, border area development programme, strengthening of vigilance establishment in the states to deal with corruption, issues relating to scheduled castes and scheduled tribes, etc.
Next meeting of the Council is to be held later this year in Odisha.
Northern Zonal Council
Northern Zonal Council meeting was held in 2012 July.Mr. P. Chidambaram, Union Home Minister, Mr Shivraj Patil, Administrator, UT Chandigarh and Mrs Sheila Dikshit, Delhi Chief Minister, Mr Prem Kumar Dhumal, Himachal Pradesh Chief Minister and Mr Ashok Gehlot, Rajasthan Chief Minister were also present.
Various inter-state issues including those related to co-ordination and co-operation for better working, trafficking of women and children; liquor smuggling, exchange of information on crime and criminals to curb crime, sharing of water and power, apart from several socioeconomic issues were on the agenda.
The North Eastern Council (NEC) came intQ being by an Act of Parliament, the North Eastern Council Act, 1971 to act as advisory body in respect of socio-economic development and balanced development of the North Eastern Areas consisting of the present States of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mjzoram, Nagaland and Tripura. The NEC started . functioning in the year 1972 . In 2003 Sikkim became the 8th member of the Council. The members of the NEC consist of the Governors and the Chief Ministers of the eight Member , States.
The North Eastern Council was constituted for performing the following functions
The Council acts as a funding agency as well as a planning agency.
National Integration Council
The government reconstituted the National Integration Council (NIC).
The 147-member N 1C, headed by the prime minister, has union ministers, chief ministers of states and union territories, heads of political parties, eminent media persons, public figures, representatives of business and women's representatives as members.
The NIC was set up in 1961 by the then prime minister Jawaharlal Nehru following a National Integration Conference to find ways and means to combat the evils of communalism, casteism, regionalism linguism and to formulate definite conclusions in order to give a lead to the country.
The NIC held its first meeting in 1962. The council has held 15 meetings so far,, with the last meeting in 2011 focused on communal harmony.
-In 2010 the government established a standing committee of the National Integration Council. Home Minister P. Chidambaram was appointed chairman and four Union Ministers and nine Chief Ministers were appointed members. The committee would decide on agenda items for future council meetings.
The NIC meetings discuss various issues relating to national integration and communal harmony in the context of the various disputes, regionalism, communalism, role of educational institutions and responsibility of the mass media, among others.
Interstate trade and commerce
The free flow of trade, without geographical barriers, is a sine qua non for economic prosperity. Our federal constitution guarantees it. We have an arrangement that aims to harmonize and facilitate inter-State trade and commerce without hindrances. Hence,* inter-State trade and commerce and some elements of intra-State trade and commerce are a Central responsibility. For example, Part XIII (Articles 301 through 307) is devoted exclusively to trade and commerce. Several other matters, incidental or necessary to trade and commerce, are also a Central responsibility, through exclusive or concurrent jurisdiction. Article 19 guarantees to every citizen the right to carry on any trade, business or profession, subject to reasonable restrictions, which may be imposed in the interest of the general public..While there is a general declaration in the Indian Constitution that trade and commerce should be free, the Centre and the States (especially the former) have the power to regulate.
Articles .301 to 307 deal with interstate trade and commerce which is a core feature of a federation like ours.
The objective behind the principle of freedom of inter-State commerce is that within the country trade and commerce should develop to the largest possible extent and it should not be hindered by artificial barriers and restrictions imposed by the. various States of the federation.
Accordingly, the Constitution has taken national interest as a whole aswell as the interests of particular States and the wide geography of this country in which the interests of one region differ from those of another.
The freedom of trade and commerce is subject to certain limitations which may be imposed by Parliament or by the Legislatures of the various States, subject to the fact that the limitations contained in the power of Parliament is confined to cases arising from scarcity of goods in one part of the territory of India, and in the case of the States it must be justified on the ground of public interest."
Article 301 is general in scope and enacts that "subject to the other provisions of this Part, trade, commerce and intercourse throughout the territory of India shall be free". After having stated the general nature of the freedom of trade and commerce, the Constitution details the limitations to this freedom. There are five such limitations:
(1) Parliament may impose restrictions in any part of the territory of India in the public interest (Art. 302). The purpose of this provision is to allow the Government of India to restrict the movement of goods so as to safeguard a well-balanced economy and the proper organisation and ordering of supplies of goods and services.
Famine may be raging in one part of the.country while there is plenty in another part, as has been the experience of the country in regard to food during the last several decades.
If Parliament has no effective powers to check such abnormal situations, freedom of trade and commerce, instead of a blessing, will become a menace to the freedom of life itself.
(2) Although Parliament is empowered to restrict the free movement or articles of trade and commerce, normally the laws passed by Parliament in this context ought to be non- discriminatory in character. In other words, it should not prefer one State to another. But when any part of the country is suffering from scarcity of goods. Parliament may, meet such a situation; pass even a discriminatory law (Art. 303).
(3) A State Legislature may impose on goods imported from other States any tax if similar goods produced in that State also are taxed in a like manner. A State Legislature is also authorised to impose reasonable restrictions on the freedom of trade and commerce witfi or within that State as may be required in the public interest (Art. 304).
But this is subject to Central control. According to this, any Bill who seeks to introduce such restrictions can be introduced in the State Legislative only with the previous sanction of the President.
The President will have the opportunity to see that the legislation is in the public interest and the restriction imposed is reasonable.
The fact that every restriction should be reasonable in relation to its objective leaves the Supreme Court with adequate power to examine and adjudicate upon the reasonableness of such restrictions and declare those that are unreasonable in its view invalid.
(5) Finally, under Article 307, Parliament is empowered to appoint such authority as it considers appropriate for carrying out the purposes of Articles 301 to 304 and to confer on that authority such powers and duties as it thinks necessary.
Speaking on this provision, Ambedkar said, "(It) is merely an article which would enable Parliament to establish an authority such as the Inter-State Commission as it exists in the U.S.A.
The federal debate 2013
There are 2 ways in which the present federal system is looked at for future course.
• Largely status quo- retaining the present federal structure with some amendments to the Constitution to make it more relevant to present day requirements because the nation building process is not yet complete and serious challenges continue to confront the nation. The country and society are .one and not as an aggregate of regional identities.
. • principle of federalism needs to be redefined. States need to be empowered more in the backdrop of the changing nature of polity, economy and society. The Centre's role as defined in the Constitution needs to be curtailed and restricted. This was highlighted in the debate in the two houses of Parliament on the Lokpal and Lokayukta Bill(Art.252 vs Art.253); NCTC; GST etc
The holders of this view argued that making Lokayuktas mandatory for states violated the Constitution's federal structure and that it impinged on the autonomy of states./Similarly, even though foreign policy is the prerogative of the Central government and the Constitution does not allow the states to take initiatives in these matters, the West Bengal government challenged the Central foreign policy on sharing the waters of river Teesta by stalling the bilateral treaty with Bangladesh.Some states have been arguing in favour of the role of states inToreign policy particularly, states with an international border are vocal on issues which directly or indirectly impact,them. Similarly, when the issue of border trade with China came up for discussion, Sikkim's views were sought. In the ongoing negotiations in the WTO on agriculture related issues, the views of states have been incorporated in India's stand. Tamil Nadu has on a number of occasions demanded the Centre's intervention in Sri Lanka.
It is important that these demands should be seen in a larger perspective. In the light of this second discourse, is it indicative that the time has come to review the constitutional arrangement with the objective of creating enough room for economic development of states without compromising the overall national interest? The North Eastern states of the country have borders with various countries like Myanmar, Bangladesh, China; Bhutan and Nepal and their proximity to countries east of India demands that their economies should benefit more from Look east policy .North east state leaders have been suggesting that New Delhi should take them on board while conducting economic diplomacy, particularly with the neighbouring countries.
Federalism is also seen in the context of decentralisation of powers. Economic liberalisation after 1991, undoubtedly, put India on a fast-track growth trajectory; however, inequity and. regional imbalance also increased. The states, therefore, started demanding more flexibility in their policies and growth strategies.
The GST negotiations and the demand that centrally sponsored schemes, be transferred to the states are prime examples.
The deepening of democracy and assumption of power by different regional parties in various states has generated an intense debate on giving States more fiscal and other powers.
In he present context, some questions arise: whether the principle of federalism in India is being used as a mere ruse to oppose the Centre because of political compulsions or is there more substance in the argument for a review of the federal structure? Has the time come to have a fresh look at the entire issue of States versus Centre? Are these demands being raised because of fracturing and fragmentation of polity or because of growing political ambitions of some regional leaders who are using the principle of federalism to assert themselves with the desire to project their leadership?
Governments and Panchayats