1.

3 Rehabilitation of Internally Displaced Persons In India

Since independence, the Indian state has adopted a model of development which involves construction of large multi-
purpose dams. Such is the faith in the merits of dams that they were said to be the temples of modern India. To support
this assertion, several benefits of multi-purpose projects are often cited, while the costs behind them are shrouded from
the public eye. India now boasts of being the world’s third largest dam builder. According to the Central Water
Commission, we have 3600 dams that qualify as Big Dams, 3300 of them being built after independence. Six hundred
and ninety-five more are under construction. According to a detailed study of fifty-four Large Dams done by the Indian
Institute of Public Administration, the average number of people displaced by a large dam in India is 44,182.
Importantly, this data relates to the big dams alone and does not reflect the displacement caused by several other
development projects. When estimating the number of persons displaced by big projects since 1947, scholar-
administrator and then, Secretary of India’s Planning Commission, Dr. N. C. Saxena, puts this number at 50 million.

Given the above statistics, it is fair to conclude that the costs behind the construction of dams have not been sufficiently
debated or else what can explain the absence of a dedicated legislation on rehabilitation? It was largely in the 1980s
owing to the struggles of the displaced persons due to the Narmada and the Tehri projects that the realities of human
devastation in the name of large development projects came to light. The aim of this paper is not to denounce or
question the merits of such projects, but to look into the manner in which they have been executed. More importantly,
the object is to analyse whether the government has followed a transparent and fair procedure to rehabilitate the
displaced persons ensuring their dignity and right to life as granted under Article 21 of the Constitution. To make such an
enquiry it is imperative that the law, judicial pronouncements and the ground realities are explored and the first two
sections of this paper shall be devoted to the same. The third section of the paper shall suggest an alternative solution to
the problem of displacement and look for a remedy in international refugee law to address the issue.

Internally Displacement According to UN guiding principles on Internal Displacement Internally displaced persons are
persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual
residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence,
violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized
State border.

1. Jammu and Kashmir: Kashmiri Pundits still in exile

India’s largest situation of internal displacement stems from the conflict in the north-western state of Jammu and
Kashmir between militants seeking either independence or accession to Pakistan, and Indian security forces and police.
The status of Kashmir has been in dispute since the creation of an independent India and Pakistan in 1947, and the two
countries have twice gone to war over the issue. Since 1989, the insurgency in Indian-administered Kashmir has claimed
at least 38,000 lives including more than 10,000 civilians. Some 350,000 Kashmiri Pandits (the government says 250,000)
remain internally displaced as a result of this armed conflict. Around 100,000 live in the city of New Delhi and some
240,000 people in Jammu (USCR 2003, ORF 2003).
Elections in November 2002 and a new Jammu and Kashmir coalition government raised expectations for an end to
displacement of the Kashmiri Pandits. In this regard, the state government developed a plan to facilitate the return of
about 125,000 Pandits to the Kashmir Valley. The plan includes cash assistance, interest-free loans and the building of
500 apartments in the Anantnag district where the displaced Pandits can stay until they have repaired their own houses.

While the state government has encouraged the return of the displaced, protection of the remaining Pandit population
has been far from adequate. The security situation has not been conducive to return, with continuing attacks and
massacres by separatist groups discouraging people from returning to the Kashmir Valley (SAM, 16 August 2003). After
an upsurge of violence and killings, 160 of the estimated 700 Pandit families who were left in the Kashmiri Valley fled
due to fears of being targeted. The security situation declined further prior to national elections in April and May 2004
(AI, 2 December 2003; COE-DMHA 5 April 2004).

a. Most displaced returned along Line of Control

Since the end of the 1990s, clashes between India and Pakistan forces and attacks by separatist militant groups have also
led to several waves of displacement from the border villages long the Line of Control (LoC) and international border. A
persistent build-up of political tension between India and Pakistan during this time meant that the danger of war
between the two sides remained extremely high until June 2002, when Western mediators facilitated an easing of
tensions (ICG 2002). According to the Indian government, more than 100,000 persons remained displaced due to
instability along the LoC as of spring 2003. The ceasefire that was concluded between India and Pakistan in November
2003 has led to substantial improvement of the security situation. The information regarding subsequent return
movements is conflicting. While local media has reported that 75 per cent of the population has returned to their
homes, another local source says that many still remain in camps awaiting demining of their fields and repair of their
homes. A vast demining operation of the border areas (more than one million mines were laid following the build-up of
troops after the December 2001 attack on the Indian Parliament) is a prerequisite for a successful return of the
displaced.

2. The North-East: displacement in Assam on the rise

The seven states in the geographically isolated and economically underdeveloped North-East are home to 200 of the 430
tribal groups in India. An influx of migrants from neighbouring areas has led to ethnic conflicts over land and fighting for
political autonomy or secession. Several political and/or armed insurgent groups have been formed, many of which
resort to “ethnic cleansing” in order to defend their interests against a real or perceived ethnic enemy. At least 50,000
people have been killed in such conflicts in the North-East since India’s independence in 1947 (COE-DMHA, 2 April 2004).
Violence has broken out in the states of Assam, Manipur, Nagaland, Tripura and Arunachal Pradesh, involving at least
eight different ethnic groups (Bodos, Nagas, Kukis, Paites, Mizos, Reangs, Bengalis and Chakmas). The largest forced
displacement movements have occurred in the states of Assam, Manipur and Tripura.

There is no official estimate of the number of internally displaced persons in the North-East. Most information is found
in local newspapers, while objective research in terms of assessing the magnitude of conflict-induced displacement in
the region is yet to be executed by either governmental or non-governmental agencies (IPCS, Routray, 17 January 2004).
In Assam, resentment among the Assamese against "foreigners", mostly immigrants from Bangladesh, has led to
widespread violence and displacement of Bengalis, Hindus and Muslims. The largest displacement situation in the state
stems from the (still ongoing) fighting between Bodos and Santhals which erupted in the early 1990s and displaced an
estimated 250,000 persons. The most recent estimates of the number of people remaining in relief camps range
between 110,000 and 135,000. The camps are located in Assam's Kokrajhar, Gosaigaon, and adjoining districts (USDOS
2003).

The Karbi Anglong and North Cachar Hills districts have been the main scenes of ethnic violence over the past few years
and the situation has become increasingly volatile. In March 2003, fighting erupted between the Dimasa and Hmar tribes
over land holding and governance in the North Cachar Hills. Up to 5,000 people were displaced as a result of this
conflict. Women, children and the elderly took shelter in relief camps in the states of Manipur and Mizoram (The
Telegraph, 20 June 2003). Today, normalcy has returned with a peace accord having been signed by both tribes.
Although no information has been found regarding the return of the displaced, it is likely that most of them have gone
back to their homes.

In the Karbi-Aglong district, thousands of civilians have been displaced following a series of incidents of ethnic violence
due to two separate but overlapping conflicts, one between two militant groups, the United Peoples’ Democratic
Solidarity (UPDS, a Karbi militant outfit) and the Kuki Revolutionary Army (KRA), and the other between the UPDS and
the Khasi-Pnar people. Attacks by Karbi insurgents in October and November 2003 led to the displacement of 5,000
Kukis to Manipur and Nagaland. An unknown number of Karbis were also displaced (COE-DMHA, 5 December 2003;
IPCS, Routray, 17 January 2004). In March 2004, following retaliatory attacks, more than 2,000 Karbis fled their homes in
the Karbi-Anglong district of Assam to government-run relief camps (COE-DMHA, 29 March 2004).

Khasi-Pnar tribals were similarly severely affected by attacks from Karbi militant groups. In November 2003, 5,000 fled to
Meghalaya as a result of threats and extortion by the UPDS and militants from another group, the Karbi National
Volunteers (IPCS, Routray, 18 December 2003). The displaced were sheltered in relief camps run by Meghalayan
authorities until they returned two months later (NENA, 6 December 2003). However, the Khasi-Pnars accuse Karbi
groups of continuously violating their human rights by raping, killing, kidnapping, torching houses and grabbing their
land (The Telegraph, 1 January 2004).

The worst attack on non-Assamese people occurred in November 2003, when a major wave of violence was launched
against Hindi-speaking people, many of them coming from Bihar to find seasonal work in Assam. The conflict was
triggered by a row over jobs and reported intimidation of Assamese people in Bihar and violence quickly spread from the
capital city of Guwahati to areas in Upper Assam. Mobs and militants killed at least 56 people and torched hundreds of
houses. There is no estimate of the number of people who became internally displaced within the state, but at least
18,000 fled to about 40 camps in and outside Assam (The Hindu, 2 December 2003; Frontline, 6 December 2003;
Reuters, 21 November 2003).

a. Displacement in other parts of North-East India

The Naga people in India's North-East have been fighting for a homeland for over 50 years. In April 2001, a decision by
the central government to extend a five-year-old ceasefire to all Naga areas in the North-East was met with violent
protests in Manipur, Assam, and Arunachal Pradesh. The ceasefire was seen as a step towards the establishment of a
greater Naga state which could infringe on the territory of the neighbouring states. Some 50,000 Nagas, fearing revenge
attacks, fled the Imphal valley in Manipur to Naga-dominated districts in Manipur and Nagaland. According to the Naga
International Support Centre, most of the internally displaced have returned to their homes and a final peace agreement
is under negotiation with Indian authorities.

In North Tripura, some estimate that more than 100,000 people are internally displaced due to ethnic fighting and
terrorist attacks by tribal insurgent groups targeting non-tribal settlers. During the first months of 2003, attacks by the
outlawed National Liberation Front of Tripura and All Tripura Tiger Force, sparked off an exodus of non-tribal Bengalis
from the interiors of the state. An estimated 31,000 Reangs from Mizoram also remain displaced after fleeing ethnic
fighting with the Mizos in 1997. Despite recommendations and orders of the National Human Rights Commission and
the central government, the state government of Mizoram refuses to take back the displaced Reangs because they
maintain that only half of the displaced are citizens of Mizoram.

In Arunachal Pradesh, at least 3,000 Chakmas have been displaced in previous years and the tension between nationalist
movements and the Chakmas threatens to displace many more. Residents have protested at the presence of the
Chakmas, who began arriving from the Chittagong Hill Tracts of Bangladesh in 1964. Many residents still view the
Chakmas as refugees, despite a ruling of India’s Supreme Court in 2000 directing the government to grant the Chakmas
citizenship (USCR 2003). The Chakmas are regularly threatened with expulsion, in particular by an influential Arunachal
student organisation, which maintains that the Chakmas should be resettled elsewhere (IPCS, 19 September 2003).
Controversy mounted over the inclusion of 1,500 Chakma residents in the electoral rolls in April 2004.

3. Internal Displacement in Gujarat

In February 2002, violence erupted in the state of Gujarat. The violence began after a Muslim mob in the town of
Godhra attacked and set fire to a train carrying Hindu activists. The reprisal attacks on the Muslim population killed more
than 2,000 people and as many as 100,000 Indian Muslims were forcibly displaced from their homes. The state
government organised relief camps, where the internally displaced reportedly lacked the most basic necessities such as
food, medical supplies and sanitation (HRW, April 2002). Despite strong international concern, the Indian government
refused to solicit or accept international assistance (USCR 2003). By October 2002, virtually all the camps had been
closed, forcing many to return to their neighbor-hoods where their security was continually threatened. In rural areas,
incidents of killing and looting continued until April 2003. Many were forced to flee to relief camps again, where they
remained basically unassisted. In July 2003, a report by Human Rights Watch concluded that both the Indian
government and the state government of Gujarat had failed to provide sufficient protection, assistance and
compensation to the displaced. It is not known how many people have been unable to reclaim their homes and
remained displaced as of June 2003 (USCR 2003). The Muslim population in Gujarat continues to face discrimination and
episodes of violence targeting Muslims were frequent during 2003, especially in the district of Ahmedabad. The Gujarat
state government is still being accused of being complicit in the on-going violence against the Muslim community in
Gujarat.
4. Displacement of Nepalis in Northeast India

The process of migration of the Nepalis in Northeast India, Darjeeling, and Southern Bhutan began about two centuries
ago with recruitment of Gorkha soldiers into the British Indian Army after the treaty of Sugauli (1816). The British who
wanted a hardy labour force for their tea plantations facilitated the Nepali migration to Darjeeling while in Sikkim, the
Nepalis served as a wedge to contain the Bhutias.

Anti-Nepali feeling in Northeast India was first observed during the Assam Movement. While the targets were the illegal
migrants from Bangladesh, the Nepalis were also included in the anti-foreigner discourse. Allegations of Nepalis from
Northeast India crossing over to side with the Lhotshampas and of their leaders, fleeing to Assam, probably encouraged
the targeting of Nepalis in Northeast India in ethnic assertions and backlashes. They were largely caught in the crossfire
between the Assamese anti-foreigner agitation and the Bodo Movement.

Although the government of India had clarified its position on the Nepalis early in February 1984 - that those in
possession of the Restricted Area Permit would not come within the definition of 'illegal migrants' and stood protected -
their position was soon threatened by the agitation for a separate Bodoland. The Nepali population in the Bodo
Autonomous Council (BAC) areas in Western Assam was only 2.5 percent and in no way large enough to constitute a
threat to the Bodos. However, the presence of the Nepalis along with the 63 per cent non-Bodos (Bodos make up 34 per
cent) constituted a major threat according to the Bodos. During the ethnic cleansing of these areas a considerable
number of Nepalis was displaced.

In Manipur, the sentiment took the form of a movement that in 1980 manifested itself in direct attacks on the Nepalis,
compelling many of them to relocate and flee to safer areas. Meghalaya, saw similar sectarian violence in 1987. The
violence primarily targeted the Nepali minority living in Shillong, Jowai and other parts of Meghalaya, which had over
150,000 Nepalis. Most of the Nepali people fled but the worst affected were the dairy farmers who had to give up their
occupation and leave the state. Today, most of the displaced from Meghalaya and Manipur are settled in Rupandehi,
Jhapa, Banke and other parts of Nepal's Terai region, besides Kathmandu and Pokhara. The anti-foreigner upsurge also
spread to Mizoram and Nagaland where again Nepalis suffered violence and eviction.

Anti-foreigner movements almost all over Northeast India, triggered by the ‘son of the soil’ agitation in Assam, the
Assam Movement (I979-85), which sought out Nepali and Bangladeshi migrants to be deported to their respective
countries of origin, have made these migrants vulnerable to growing instances of nativist backlash.

The issue of the Nepali IDPs has failed to draw much attention first, due to their small number and second, due to the
apparently mobile nature of the community that makes it easy to ignore the many complexities that affect this
community in recent times in Northeast India.

Internal Displacement in Central India

In central India, leftist extremist groups commonly referred to as Maoists or Naxalites, have significantly increased
insurgent activities during the past few years, including in the states of Madhya Pradesh, West Bengal, Bihar,
Chhattisgarh, Jharkhand, Orissa, Tamil Nadu, Maharashtra and Andhra Pradesh.
Violence has been especially on the increase in Andhra Pradesh and Orissa. Distinction against the tribal population,
displacement by large development projects and government failure to ensure food security have been the main
reasons for the rapid spread of the Naxalite movement, according to an independent study released in June 2005.
Estimates of the extent of the Naxalite groups differ widely. The last available government report states that 76 districts
in nine states were affected by leftist rebels, while the June 2005 study says Naxalite groups had extended their
influence to 155 districts in 15 states, affecting close to 300 million people across 7,000 towns and villages as of February
2005. Furthermore, such groups were reported to control almost 20 percent of India’s forests over an area two-and-a
half times the size of Bangladesh.

The government’s response to the insurgency has been criticised of being ad-hoc and piecemeal. In addition to federal
police and paramilitary troops, some states are also believed to use private armies in their hunt for insurgent groups and
sympathisers. In Jharkhand state, for example, it is known that the state government has sponsored village “defense”
groups for this purpose. In Chhattisgarh, a state sponsored movement against Naxalite violence has gained momentum.
While the movement, called Salwa Jodum, is gaining support among the local population, state authorities have been
accused of using the campaign to justify a brutal search for supporters of Naxalite groups.

No estimate of the number of people displaced as a result of the insurgency in central India is available, but anecdotal
information suggests that thousands of villagers have been displaced either as a result of government mobilisation
against the insurgent groups or because they flee Naxalite violence. In Chhattisgarh, approximately 15,000 people from
420 villages have fled to temporary camps. People have left behind their cattle and most of their household goods.
Displacement is reportedly continuing while more police and para-military stations are being set up. 7,000– 10,000
people fled to camps protected by the police to avoid Naxalite retaliation because they had joined the Salva Jodum
movement. In Orissa, the state authorities have reportedly forcibly displaced local tribes because they were suspected
of sympathizing with the Naxalites.

The following issues mainstreamed the Naxalite conflict in 2006: First, with 48.5% of the total killings being reported
from Chhattisgarh, the Salwa Judum campaign with its disastrous consequences such as the violations of the right to life
by the Naxalites and the security forces and Salwa Judum cadres, forcible displacement of 43,740 persons as of 31
December 2006 and abdication of the law and order to the lawless and unaccountable Salwa Judum cadres brought
national and international spotlight on the Naxalite conflict in India.

Second, the Naxalite conflict has spread to new areas in 2006. According to the 2005-2006 Annual Report of the Ministry
of Home Affairs, Naxal violence in 2005 was reported from 509 police stations across 11 states. In 2006, Naxal violence
has been reported from 1,427 police stations in 13 States. Among the Naxalite affected States, Chhattisgarh, Andhra
Pradesh and Jharkhand were most severely affected, followed by Maharashtra and Orissa.

Third, the attack on Jehanabad jail in Bihar on 13 November 2005 by the Naxalites was followed up by the simultaneous
attacks on the State Armed Police camp, the local police station, sub-jail, treasury, tehsil office and a telecom tower in
Udayagiri town of Gajapati district of Orissa on 24 March 2006 in which 40 prisoners were freed, three policeman were
killed and arms were looted. Similarly, the killing of 13 Central Reserve Police Force personnel at Kanjkiro, 62 kilometers
from Bokaro, Jharkhand on 2 December 2006 was followed up with the detention of the Tata-Kharagpur passenger train
near a deep forest between Gidni and Chakulia stations in Jharkhand on 10 December 2006. These incidents raised the
spectre of the Maoists’ increased striking capability reminiscent in neighboring Nepal.
Fourth, the easy access to small arms by the Naxalites, hitherto known only in the North East and Jammu and Kashmir,
came to the fore.

Fifth, while the security forces continued to violate human rights, the chilling massacres of the unarmed civilians by the
Naxalites in 2006 were unprecedented.

Across the Naxalite affected areas, the edifice of the State structure remains weak and the State governments have
virtually failed to deliver to the citizens even the basic amenities. Consequently, the law and order approach in the areas
where there is neither law nor order remained dominant. The Naxalites while frowning at the lack of development
systematically targeted all such governmental buildings that could provide shelter to security personnel and virtually
blocked all development initiatives.

Increasing conflicts as a result of the acquisition of lands either for Special Economic Zones (SEZs) or development of
industrial projects without free, prior and informed consent and without proper and appropriate relief/rehabilitation of
the displaced persons in more ways than one mainstreamed the Naxalites’ worldview as never before."

Governments Response towards Internal Displacement

The Indian government has been accused of failing to adhere to standards laid out in the UN Guiding Principles on
Internal Displacement and to international human rights standards in its response to displacement in Kashmir and
Gujarat.

Overall, the government’s response to internally displaced from Kashmir has been much more generous than the
response to displaced elsewhere in the country (ACHR, October 2003). According to an official report in 2000, the Indian
government spends $532,000 per month on financial and food aid for the displaced in Kashmir (ORF, September 2003).
Recently, the government also announced a wide-reaching development programme for Jammu and Kashmir where
$2.2 million is earmarked for relief to displaced Kashmiri Hindus (SAM, 16 August 2003). No such assistance is being
provided to internally displaced in the North-East. The government does however grant relief on an ad-hoc basis. After
the violence against Hindi-speaking people in Assam, the government announced a relief package including construction
of houses for nearly 20,000 people living in 30 relief camps in Assam, supply of relief materials, including food grains and
other essential commodities (NENA, 7 December 2003). In Gujarat, reports blame local authorities as well as the state
government for failing to address the needs of the displaced altogether, despite promises made by the government with
regard to rehabilitation. In a positive development, efforts were made to make displaced voters participate in the April
and May national elections. The Electoral Commission ordered that displaced Kashmiri and Reang citizens could vote in
their home states by submitting postal ballots. Newspapers also reported that polling booths were put up in relief camps
for displaced people in Assam.

In March 2004, the Asian Development Bank (ADB) announced a loan of $243 million to Indian-controlled Kashmir. Part
of the loan is expected to address the problems facing internally displaced people fleeing conflict in Kashmir.

India frequently denies international humanitarian actors access to internally displaced populations, arguing that local
governments take full care of the affected people. Most of the North-East, for example, is off-limits to
foreigners.However, Médecins Sans Frontières (MSF) and the Lutheran World Federation have obtained access to relief
camps for internally displaced in Assam. MSF has also assisted internally displaced in Jammu and Kashmir. In general,
India lacks a national IDP policy and the government systematically refers to internally displaced persons as “migrants”.
A clear mandate for national and state institutions to assist and protect internally displaced people as well as improved
data collection would constitute vital steps towards establishing an improved response to the displaced in line with
international standards.

Judicial Response to the Displaced

Though the court expanded the language of Article 21 to incorporate the right to rehabilitation as a fundamental right, it
did not apply the same to a real fact situation. Instead, it chose to take a narrow approach by demarcating a line
between policy decisions and judicial interference. The result was that the oustees could not secure justice and were
failed by the courts ailed as citizen’s custodian of rights. More significantly, the following criticisms can be made of the
above decisions.

1. In Narmada, the court allowed the construction of the dam to proceed by blatantly disregarding the evidences placed
before it. The court’s final decision did not take into account the affidavit filed by the government of Madhya Pradesh
which stated that that it has no land to resettle the oustees, that in all these years Madhya Pradesh has not produced a
single hectare of agricultural land for its oustees. It ignored the facts that not one village has been resettled according to
the directives of the Narmada Water Disputes Tribunal Award, the fact that even thirteen years after the project was
given conditional clearance, not a single condition has been fulfilled, that there is not even a rehabilitation Master Plan.

2. In Narmada, the court went on to say that, “It is for the Government to decide how to do its job. When it has put a
system in place for the execution of a project and such a system cannot be said to be arbitrary, then the only role which
a Court may have to play is to see that the system works in the manner it was envisaged.” The petitioners had not asked
the court to intervene in policy decisions of the government, but to restrain the construction on the ground that the
project was not being implemented as it was envisaged, without any rehabilitation. The distinction made by the court
between policy decisions and the permissible area of judicial intervention was unnecessary in this context. More
importantly, contrary to its own finding, the court itself indulged in commenting on the policy decisions of the
government when it presented an unqualified eulogy on the virtues of a dam such as the following in the Tehri’s case. It
said, “The benefits which have been reaped by the people all over India with the construction of the dams are too well-
known and, therefore, the Government cannot be faulted for deciding to construct the high dam on river Tehri with a
view to provide water and electricity in the area as was the decision in the Sardar Sarovar project’s case also.”

3. The court refused to accept the report prepared by the Morse Committee which was an independent committee
appointed by the World Bank. The Morse committee, which was set up by the World Bank comprised qualified and
reputed members. Assisted by the finest consultants from around the world, it conducted an extensive review of the
rehabilitation and environmental aspects through a period of 10 months. The committee being the only one with access
to all the documents relating to the project from the World Bank, governments, NGOs, NBA etc, produced a
comprehensive report. However, the report was not accepted either by the World Bank or the Government of India. This
rejection by the World Bank and Government of India was not surprising since the report was critical of both the project
and the World Bank. But what is highly unacceptable is the Supreme Court’s rejection of the report on the grounds that
it was rejected by both the World Bank and the Government of India.

4. The majority order of the Supreme Court observes that, “Once the Award is binding on the States, it will not be open
to a third party like the Petitioners to challenge the correctness thereof. We therefore, do not propose to deal with any
contention which in fact seems to challenge the correctness of an issue decided by the Tribunal.” This is a very legalistic
interpretation of the Inter State Water Disputes Act (ISWDA) and Article 262 of the Constitution. The Narmada issue
being a dispute between the state and the people and one where the fundamental rights of the people are involved, the
court’s declaration that a third party cannot challenge the Tribunal is an incorrect application of the ISWDA which
created the Tribunal to solve disputes between the states inter se. The fact that the people were not given a hearing
before the Tribunal clearly indicates the injustice involved.

Even if there is an assumption that the governments represent the people, in this case, the governments represent to
the tribunals on behalf of the beneficiaries and the affected. This being a conflict of interest, it is only fair that there be a
provision enabling the representation of the affected people. If this cannot be done, there should at least be a provision
to challenge the tribunal, especially since it involves the right to life of the citizens. The need is furthered by the
existence of situations wherein the facts and assumptions on which the tribunal based its order have been found to be
incorrect, as in the case of the Sardar Sarovar Project. It would be a difficult situation if the implementation of one part
of the tribunal award becomes impossible and there is no right to challenge the tribunal order. The situation is akin to
what is happening in the Sardar Sarovar project where implementation of the rehabilitation plans is incomplete leading
to the violation of the tribunal order time and again. In such cases, it should be open to the person to challenge the
order on the ground that the part of it dealing with right to life is not being implemented.

The three states, namely Madhya Pradesh, Maharashtra and Gujarat, along with the Narmada Control Authority, the
machinery to implement the tribunal have not bound themselves by the tribunal. While clause VII of the Tribunal award
says, “The Tribunal hereby determines that the height of the Sardar Sarovar Dam should be fixed at Full Reservoir Level
(FRL) 455 feet and Maximum Water Level (MWL) 460 feet”, the above mentioned authorities have changed the height of
the Sardar Sarovar Dam to a MWL of 455. According to the tribunal, the people who are below MWL and above FRL have
to be rehabilitated. By changing the MWL, the done away with the need to rehabilitate people. Thus the Sardar Sarovar
Dam height has been changed, and this change cannot be challenged by people mainly because according to the
majority it is impossible to change the height of the dam. An analysis of the cases reveal that the courts have given
decisions that helped in legitimising government’s abuse of power. Thus, even though the court granted formal rights by
expanding the scope of Article 21, it desisted from applying the same to real fact situations such that the abstract could
be contextualised.

Thus, both the legislature and the judiciary have failed to provide a solution to the problem of rehabilitation. While it
was expected that the judiciary would correct the legislative slackness of not enacting a national legislation on
rehabilitation by assuming a more dynamic role; however in its absence, the need arises to look for an alternate solution
and the next section shall do the same.

Conclusion

The legislature has shown unwillingness to enact a rehabilitation legislation even after sixty years of independence.
Although, the judiciary has granted rights to the displaced prima facie, it did little to implement them. In fact the
Narmada and the Tehri judgments reflect how courts have supported the acts of the government by taking a stand that
would further their interest. The situation now is that both the legislature and the judiciary have failed to address the
injustice caused to the internally displaced persons. Thus, this paper made a case for creating international pressure on
the nations to grant the right to rehabilitation of the refugees by expanding the current definition of refugees such that
internally displaced persons are included in its purview.
The existing definition of refugee in international documents has been consistently criticised beginning with Simpson in
1938. The consistent claim against the existing definition in chief international documents is the fact that they are
irrationally narrow and exclusive in their scheme without enough justification supporting such a scheme. It is a fact that
the accepted definition of refugee excludes internally displaced persons from its purview by putting forth ‘crossing of
international borders’ as a necessary condition for designation of refugee status, in spite of the fact that the plight and
suffering of the internally displaced persons is every bit as serious as persons crossing international borders.

Such a requirement completely ignores socio-economic and legal impediments to crossing of international borders. This
argument against the existing definition has never been satisfactorily countered. Again, exclusion of causes apart from
individualized persecution, such as natural disasters and large scale developmental projects, from the purview of the
definition of refugee appears to be unreasonable. This appears especially irrational in light of the fact that these
unrecognized causes of flight account for displacement of enormous population in contemporary times and there is
enough statistical data to corroborate this argument. Thus, there are enough arguments for remodeling the accepted
scheme of definition of refugee so that these unjustified exclusions are rectified. There is a significant case for
broadening the definition of refugee by doing away with crossing of international border as a necessary condition for
designation of refugee status and recognizing causes other than individualized persecution, especially large scale
developmental projects and natural disaster, as legitimate causes of flight.

***********************

# Arundhati Roy, Lies, Dam Lies and Statistics, THE GUARDIAN, June 5, 1999.

# INDIAN WATER RESOURCES SOCIETY, FIVE DECADES OF WATER RESOURCE DEVELOPMENT IN INDIA 7 (1998).

# SATYAJIT SINGH, TAMING THE WATER: THE POLITICAL ECONOMY OF LARGE DAMS 188 – 99 (1991)

# At a meeting in New Delhi on 21st January 1999 organised by the Union Ministry of Rural Areas and Employment, for
discussion on the Draft National Resettlement and Rehabilitation Policy and the Amendment to the Draft Land
Acquisition Act: Arundhati Roy, The Greater Common Good, in THE ALGEBRA OF INFINITE JUSTICE 60 (2002).

# GOI 2002-2003, Chapter III, p.13

# GOI 2002-2003, pp. 27-28

# Hindu Press, 9 March 2003

# GOI, 2002-2003, Chapter III, p.29; SAM, 16 August 2003

# COE-DMHA, 5 March 2004; COE-DMHA, 26 March 2004; Reuters, 17 December 2003

# USCR January 2000, p.2-3, 5-7, Bhaumik, p.22-24

# The Hindu, 16 March 2004; ACT- LWFI, 20 February 2004

# NPMHR, 5 January 2002, AHRC, 1 October 2003

# Deccan Herald 20 March 2004, Rediff.Com, 21 May 2003

# Rediff.Com, 12 May 2003

# ACT-LWS-I, April 2003

# IIJ, December 2003, Times of India, 4 November 2003

# IIJ, December 2003, p.51

# Haldr, Chiranjib, March 2007, The Nepali Influx in Northeast India.

# Center of Excellence in Disaster Management & Humanitarian Assistance (COEDMHA), 14 April 2005, Indian federal
government boosts counter-insurgency operations against leftist rebels.

# Asian Centre for Human Rights (ACHR), 21 September 2005, Naxalism and civil wars of India; Frontline, 15 July 2005, A
naxalite corridor.

# South Asia Analysis Group (SAAG), 13 June 2005, Messing up with Naxalites, by Col R. Hariharan.

# Ministry of Home Affairs, Government of India, (MHA-GoI), 2005, Annual report 2004 – 05, p. 43.

# The Telegraph, 26 November 2006; Center of Excellence in Disaster Management & Humanitarian Assistance (COE-
DMHA), 6 February 2006, Clashes with Maoists in south-central India responsible for at least 16 deaths India: tens of
thousands newly displaced in north-eastern and central states 9 February 2006; South Asia Analysis Group (SAAG), 13
June 2005, Messing up with Naxalites, by Col R. Hariharan. Frontline, 15 July 2005).

# Stratfor, 16 January 2006, The Threat to India's High-Tech Sector.

# People's Union for Civil Liberties (PUCL), 2 December 2005, Fact-finding report on the Salwa Judum, Dantewara
District.

# PUCL, 16 November 2005.

# Asian Centre for Human Rights (ACHR), 10 January 2007, Naxal Conflict in 2006.

# HRW July 2003, p. 38; ORF September 2003

# IIJ, December 2003; HRW, July 2003

# The Hindu, 16 March 2004; Deccan Herald, 24 March 2004; India EC 2004

# COE-DMHA, 19 March 2004

# GOI, 21 July 2000; USCR, January 2000, p.4

 1.5 ARTICLE 356 AND 365 Constitution Of India
INDIAN CONSTITUTIONAL LAW : THE NEW CHALLENGES

1.5. DIRECTION OF THE CENTRE TO THE STATE UNDER ARTICLE 356 AND 365

Administration of state is governed by bureaucracy or by IAS officer under the direction of home ministry when art 365
apply. Governor of state send his report to president that state machinery is has fail to run administration in state. First
use of 356 is held in Punjab in 1952.

Article 356 of the Indian Constitution has acquired quite some notoriety due to its alleged misuse. The essence of the
Article is that upon the breach of certain defined state of affairs, as ascertained and reported by the Governor of the
State concerned (or otherwise) the President concludes that the 'constitutional machinery' in the State has failed.
Thereupon the President makes a 'Proclamation of Emergency,' dismissing the State Legislature and Executive. During a
state of emergency, the President is vested with tremendous discretionary powers. Any legislation or constitutional
provision that abrogates any of the basic principles of democratic freedom is anathema to most people and the more so
to the people of the largest democracy in the world. Having just gained independence after a long and continuous
struggle, the people of India would naturally have the greatest interest in preserving all the freedoms envisioned in a
democratic society.

If the members of the Drafting Committee of the Constitution included a provision that permits a Government to dismiss
a duly elected representative body of the people and suspend those freedoms in violation of even the crudest
interpretation of a 'separation of powers,' then common sense suggests that it is only to deal with the direst of
circumstances and nothing less. But it seems that the remedial nature of the Article has been perverted to impose the
domination of the Central Government upon a State Government that does not subscribe to its views. Central control
over regional governments is essential for the integrity of nations that have federal systems of government, and Article
356 was designed to preserve this integrity, but what remains to be seen is whether it is being used at the cost of
sacrificing the interests of democratic freedom.

Rare use of Article 356

The Sarkaria Commission recommended extremely rare use of Article 356. The Commission observed that, although the
passage, '. . . the government of the State cannot be carried on in accordance with the provisions of this Constitution . . .'
is vague, each and every breach and infraction of constitutional provisions, irrespective of their significance, extent, and
effect, cannot be treated as constituting a failure of the constitutional machinery. According to the Commission, Article
356 provides remedies for a situation in which there has been an actual breakdown of the constitutional machinery in a
State. Any abuse or misuse of this drastic power would damage the democratic fabric of the Constitution. The report
discourages a literal construction of Article 356(1).

The Commission, after reviewing suggestions placed before it by several parties, individuals and organizations,
decided that Article 356 should be used sparingly, as a last measure, when all available alternatives had failed to prevent
or rectify a breakdown of constitutional machinery in a State. Before taking recourse to the provisions of Article 356, all
attempts should be made to resolve the crisis at State level.
Judicial review

The susceptibility of a Proclamation under Article 356 to judicial review is beyond dispute, because the power under
Article 356(1) is a conditional power. In the exercise of the power of judicial review, the court is entitled to examine
whether the condition has been satisfied or not. So the controversy actually revolves around the scope and reach of
judicial review. From the decisions in the case of State of Rajasthan v. Union of India and the Bommai case, it is clear
that there cannot be a uniform rule applicable to all cases. It is bound to vary depending upon the subject matter, nature
of the right, and other factors. However, where it is possible the existence of satisfaction can always be challenged on
the ground that it is 'mala fides or based on wholly extraneous and irrelevant grounds.' The relevance of judicial review
in matters involving Article 356 is also emphasized in the Supreme Court judgment in re State of Madhya Pradesh v.
Bharat Singh, where the Supreme Court held that it was not precluded from striking down a law passed prior to a
Proclamation of Emergency, as ultra vires to the Constitution, just because the Proclamation was in force at that time.

Judicial review of the Proclamation under Article 356(1) was first tested in State of Rajasthan v. Union of India. The
Supreme Court, being the ultimate interpreter of the Constitution, has the power of judicial review on all actions
emanating from or empowered by any constitutional provision. Though the power of the President under Article 356
concerns his political judgment and the courts usually avoid entering the political thicket, this power does not enjoy
blanket immunity from judicial review. It has to be determined in the individual cases on the basis of justifiability, which
is distinct from judicial review. But unless the mala fides of the Presidential Proclamation is shown, the Courts have been
exhorted by the Supreme Court to avoid delving into the President's satisfaction for want of judicially manageable
standards. This point is amply evident in the case of Minerva Mills and Others v. Union of India and Others, where the
Supreme Court dwelt extensively on its power to examine the validity of a Proclamation of Emergency issued by the
President. The Supreme Court in this matter observed, inter alia, that it should not hesitate to perform its constitutional
duty merely because it involves considering political issues. At the same time, it should restrict itself to examining
whether the constitutional requirements of Article 352 have been observed in the declaration of the Proclamation and it
should not go into the sufficiency of the facts and circumstances of the presidential satisfaction in the existence of a
situation of emergency.

Thus we can safely conclude that, though limited, the Presidential Proclamation under Article 356 is subject to judicial
review.

Article 356 should be abolished'

Justice V.R. Krishna Iyer, former judge of the Supreme Court, has been one of India's most distinguished and original
constitutional thinkers since Independence. He was interviewed by R. Krishnakumar in Thiruvananthapuram:

*The Supreme Court's majority judgment of March 11, 1994 in the Bommai case is considered a landmark judgment
with respect to Centre-State relations in general and Article 356 in particular. What, in your assessment, is the essential
difference between the situation pre-Bommai and post-Bommai?

Before the Bommai decision was rendered, the constitutional position was understood to mean excluding the
jurisdiction of the Supreme Court when Article 356 was applied. But now the law is clear that it is possible for the court,
it is proper for the judges, to examine whether the relevant power has been misused in the sense that it is arbitrary,
mala fide or such that there is no reasonable material to support such a conclusion as the breakdown of the
Constitution.
Indeed it must be acknowledged that even the Pakistan Court has taken a somewhat similar, view, even earlier than the
Indian Court. Now, therefore, it is clear that reckless exercise of Article 356 power will meet with its Waterloo in the
Court.

* Since experience, even in the post-Bommai period, suggests that few Central governments are able to resist the
temptation to misuse the exceptional power conferred by Article 356 (and also related powers), do you think Article 356
should be abolished?

Speaking for myself, Article 356 deserves to be abrogated. The founding fathers were under the impression that this
provision would be used only in the rarest of rare cases, that it would be virtually a sword which would never be taken
out of its sheath, except in a flagrant case under Article 365. This latter Article states that if any particular State defies a
Central direction validly given, it shall be lawful for the President that is the Cabinet, to hold that the government of the
State cannot be carried on in accordance with the provisions of the Constitution. That is to say, if an Article 365 situation
arises, Article 356 may be attracted. But the Court will go into the question whether the direction given by the Union to
the State was itself valid. Only in a case of such valid direction within the competence of the Union being ignored by the
State, can Article 356 come into operation.

My submission is that in over 100 cases, starting with the outrage perpetrated in Kerala in 1959, there has never been a
legitimate use of Article 356. If the temptation to use this presidential power is perennial, as is seen by its continual
abuse, the time has come for a change in constitutional perspective. In short, Article 356 should be kept in cold storage,
or even formally abolished.

The daring way in which the AIADMK is demanding the dismissal of the DMK Ministry in Tamil Nadu under Article 356
shows that political terrorism is apt to overpower constitutional propriety. What is still more shocking is that the
AIADMK alleges an earlier agreement with the BJP that, if the latter came to power, President's Rule would be imposed
in Tamil Nadu. This very statement is sufficient to hold that any exercise of Article 356 by the Centre is utterly untenable.

Madam Jayalalitha, innocent of Constitutional law, is guilty of the goofy demand for President's Rule not knowing that
her very allegation of an antecedent understanding is sufficient to shoot down any stultifying exercise of Article 356
power!

* Article 356, which was sold to the Constituent Assembly as an emergency provision to deal with highly exceptional
cases, has (as you have pointed out) been used over 100 times since the Republican Constitution was adopted in 1950.
Looking at it historically, under what circumstances would the use of Article 356 be just, if at all?

The Sarkaria Commission has condemned the exercise of Article 356 power as almost always motivated or induced by
extraneous considerations. It is time Article 356 power was handcuffed in the way Sarkaria has suggested, although
personally I might go further to hold that only after Parliament passes a resolution in both Houses should President's
Rule be used against a State. Why? Because it is a sabotage of federalism to usurp State power by the Centre and such a
grave frustration of the basic structure of the Constitution needs strong limitations to be put on the exercise of the
power. So it is that I demand a prior resolution by both Houses as a check on misuse.
* Constitutionally, new standards and restrictions have been laid down for the application of Article 356 (and at least by
implication, the Governor's power to dismiss an elected State Government without recourse to Article 356). But
between this new constitutional standard ordained by the Supreme Court and actual political conduct, there seems to
be some kind of credibility gap. How can Bommai be better enforced in the rough and tumble of Indian politics?

The Bommai ruling is a severe warning to the Union Government. It must be open to the affected or intimidated State to
move the Supreme Court by a quia timet action to stay hasty intervention in case there is clear indication of such a
proposed action. It must be remembered that the State Cabinet is answerable to the State legislature and so long as it
commands its confidence the pleasure of the Governor is a mere constitutional euphemism. The powers of the Governor
as well as of the President have been explained at some length in Shamser Singh's case (Shamser v. State of Punjab,
1974). The President as well as the Governor are bound by the Cabinet's advice and to act in excess of such advice is to
violate the Constitution and invite the Court's interdict.

* Would you like to comment on the constant demands made not only by the AIADMK, but also by other regional allies
of the BJP such as the Samata party and the Trinamul Congress for Central action against elected State governments run
by parties in opposition to the BJP and its allies? Also, would the pre-election agreement or understanding which
Jayalalitha claims AIADMK had with the BJP for the dismissal of the Tamil Nadu Government render the use of Article
356 mala fide?

I have no doubt in my mind that demands by regional or even national parties to overthrow State-level democracy
under Article 356 cannot be acceded by the Centre. This is not a matter of political vendetta or hostility or
estrangement. Constitutional values must regulate the President's conscience when exercising Article 356 power. Noises
made by regional parties or others cannot affect the voice of the Constitution. This applies to the Tamil Nadu party's
demand as well as the clamour made against the West Bengal Government.

* When all is said, the Governor under the Indian Constitution seems to be nothing but a political agent of the Centre.
What do you think can be done about this problem in a federal set-up?

The Governor under the Indian Constitution is a dubious functionary. He is a ceremonial figure as the head of the State
and has solemn functions in that capacity. Some of them are really effective powers. As a rule, the Governor is bound by
the advice of his Cabinet. He cannot be Janus-faced, looking in both directions. He cannot be a Central spy or an agent to
carry out the Union's mandate.

Unfortunately he is in a very embarrassing position. Appointed by the Centre but obedient to the State Cabinet, he can
be a pathetic functionary sometimes asked to perform pathetic measures by the Centre. He has to be an independent
authority, his allegiance being wholly to the Constitutional obligations to act on the advice of the Council of Ministers.
He may, as in England, caution, encourage, or otherwise give advice, but ultimately must abide by his Cabinet's
recommendation for action. That is why sometimes it has been said that a Governor is a glorified cipher. So too the
President.

But this is not wholly true. They have power to ask for information, explanation and reconsideration. Wisely used, these
functions plus the power to refer Bills to the President, for consideration and assent, may make the Governor a factor to
be reckoned with.
So it is that I hold the view that the Governor is more than a glorified cipher. He reigns, but does not rule. He advises,
but is bound by the advice of his Ministers. He is an elder statesman but not an authority as the executive head of the
State. Such is the delicate constitutional balance.

ARTICLE 365 IN THE CONSTITUTION OF INDIA 1949

365. Effect of failure to comply with, or to give effect to, directions given by the Union Where any State has failed to
comply with or to give effect to any directions given in the exercise of the executive power of the Union under any
directions given in the exercise of the executive power of the Union under any of the provisions of this Constitution, it
shall be lawful for the President to hold that a situation has arisen in which the government of the State cannot be
carried on in accordance with the provisions of this Constitution.

Constitution of India - Emergency Provisions

No Chapter of the Constitution has been subject of more acrimonious attack by the critics than those dealing with the
emergency provisions. The Constituent Assembly witnessed one of its most agitated scenes during the discussion of
these provisions. Many prominent members of the Assembly opposed the inclusion of these provisions in the
Constitution as they thought that they were inconsistent with the democratic provisions embodied elsewhere. The
majority of the members, however, favored the inclusion of these provisions, although reluctantly, as a precautionary
measure, against possible disruptive forces destroying the newly established Union. The Constitution provides for three
different categories of Emergency and in each case the President is empowered to declare the emergency.

War Emergency

If the president is satisfied that a grave emergency exists whereby the security of India or any part of its territory is
threatened by war, external aggression or armed rebellion, he may proclaim a state of emergency under Article 352. It
may be proclaimed even before the actual occurrence when external aggression is apprehended. But no such
proclamation can be made by the President unless the Union Ministers of Cabinet rank, headed by the Prime Minister,
recommend to him, in writing, that such a proclamation should be issued. The proclamation may be revoked
subsequently; if not, it shall be laid before both Houses of Parliament. If Parliament does not approve of it within one
month, it will become ineffective.

As soon as the emergency is proclaimed, the federal provisions of the Constitution cease to function in the area affected
by the proclamation. As a result, there is a two-fold expansion of the authority of the Union. First, the executive power
of the Union will extend to the giving of any direction to any State executive in the emergency area. Secondly,
Parliament’s law-making power will extend to the subjects enumerated in the Sate List. Further, the President is
empowered to prohibit by order the distribution of revenues that are normally to be assigned to the Sates under the
financial provisions of the Constitution. However, all such orders have to be placed before each House of Parliament for
its approval. The combined effect of the operation these provisions is the emergence of full-fledged unitary
Government.
Constitutional Emergency in the States

If the President is satisfied on receipt of a report from the Governor or otherwise that a situation has arisen in which the
Government of a Sate cannot be carried on in accordance with eh provisions of the Constitution, he is empowered to
proclaim an emergency under Articles 356 and 365. As a result, 9I) he may assume to himself all or any of the functions
of the State or he may vest all or any of those functions in the Governor or any other executive authority, (ii) he may
declare that the powers of the State legislature shall be exercisable by Parliament; and (iii) he may make any other
incidental or consequential provisions necessary to give effect to the objects of the Proclamation. The President,
however, cannot assume to himself any of the powers vested in a High Court. The proclamation will have to be approved
by both the Houses of Parliament in the same manner in which a war emergency proclamation has to be approved.

Suspension of Fundamental Rights:

During the period of emergency, as declared under the either of the two categories discussed above, the State is
empowered to suspend the Fundamental Rights guaranteed under Article 19 of the Constitution. The term 'State' is used
here in the same sense in which it has been used in the Chapter on Fundamental Rights. It means that the power to
suspend the operation of these Fundamental Rights is vested not only in Parliament but also in the Union Executive and
even in subordinate authority. Further, the Constitution empowers the President to suspend the right to move any court
of law for the enforcement of any of the Fundamental Rights. It means that virtually the whole Chapter on Fundamental
Rights can be suspended during the operation of the emergency. However, such order are to be placed before
Parliament as soon as possible for its approval.

Financial Emergency:

If the President is satisfied that a situation has arisen whereby the financial stability or credit of India or any part of its
threatened, he may declare a financial emergency under Article 360. The proclamation in this case also should be
approved by Parliament as in the other two cases of emergency. During the financial emergency, "the executive
authority of the Union shall extend to the giving of directions to any State to observe such canons of financial propriety
as may be specified in the direction" or any other directions which the President may deem necessary for the purpose.
Such directions may include those requiring the reduction of salaries and allowances of Government servants and even
those of the Judges of the Supreme Court the High Courts.

An Analysis:

So far, there have been four occasions when emergency of the first category was proclaimed by the President: 1962
(Chinese aggression), 1965 (Indo-Pakistan war), 1971 (Indo-Pakistan war before the emergence of Bangladesh) and 1975
(internal emergency). An analysis of these instances would indicate the purpose and the manner in which, in actual
practice, a proclamation of emergency in the States will be made by the President. These may be summed up in the
following terms:

I. The essential condition for the intervention by the Centre is the political instability of the State, that is the virtual
breakdown of the Parliamentary System of the Government.

II. The Union will watch the situation of instability with utmost caution and provide every opportunity for the formation
of an alternative ministry.
III. The proclamation of emergency will only be the last resort when (i) the existing ministry does not have the
confidence of the legislature; and (ii) no alternative ministry can be formed.

IV. During the period of emergency, the legislative work of the State will be transferred to Parliament Delegation of such
work to any administrative boy will be reduced to the minimum.

V. As soon as the political situation within the State becomes conductive to a responsible Government, it will be
restored.

Generally speaking in practice, the emergency provisions for Central intervention in cause of breakdown of
Constitutional machinery in the States have proved to be not only a protective device for responsible government in
politically unstable States but also a blessing to political parties who ere unwilling and incapable to shoulder
responsibility for a time on account of group rivalries or any other unfavorable circumstances. During a period of
emergency, it is natural that the Executive becomes unusually powerful. This is a tendency of governments all over the
world, federal or unitary. The experience of parliamentary democracies indicates that a Parliament is vigilant and
through the members of the opposition particularly. it manages to compel the Executive to account for all its actions.
Thus, Parliament has the power to check the Executive whenever the latter goes beyond reasonable limits. Emergency
provisions. do not, in any way, cut Parliament out of the picture and Parliament has always the right to call the Executive
to order; and if they find that the Executive has exceeded its powers in regard to the operation of any of the provisions
enacted under the emergency laws, they can always pull it up, even dismiss the ministry and replace it.

How effectively Parliament would and could function during a period of national emergency was a subject of speculation
until 1962 when the President proclaimed emergency under Article 352. But the manner in which Parliament has dealt
with the emergency shows that instead of the Executive arrogating to itself the powers of Parliament in the name of
emergency. Parliament has subjected to Executive to greater control and security in all its actions vitally affection the
nation. In fact, the debates in Parliament demonstrated the eagerness with which the Executive sought the approval of
Parliament not only with regard to the action already taken by the Government but also that proposed for the future.

The only exception to this in practice was the internal emergency period of 1975-77. There was widespread abuse of
executive power in many part of the country in many forms during this period. The extent of abuse became clear only
after the lifting of emergency in 1977. Naturally the new Parliament, which came into being after the general elections of
march 1977, was interested in prevention the repetition of such a situation in future and hence initiated steps to amend
the Constitution suitably to limit the powers of the Government to proclaim internal emergency.

The 44th Amendment adopted by Parliament in December 1978 ensures that the proclamation of emergency can be
made only on the basis of written advice tendered to the President by the Cabinet. Internal disturbance not amounting
to armed rebellion will no longer be ground for declaration of emergency. Emergency can be proclaimed only when the
security of the country is threatened by war, external aggression or armed rebellion. As an additional safeguard,
proclamation of emergency will require approval within a month by a resolution of Parliament by a majority of the total
membership and not less than two-thirds of the members present and voting. The provisions for financial emergency,
again, show how the framers of the Constitution have drawn upon the experience of the working of federalism
elsewhere.
Finally, one may consider the provision for the suspension of Fundamental Rights Apparently, this is by far the most
unwholesome provision in the Constitution. The provision for the suspension of Constitutional rights does not means,
however, that with the proclamation of emergency, there will be an automatic suspension of Fundamental Rights. It may
be quite possible to keep the enforcement of the Fundamental Rights intact and there need not be a universal
suspension throughout the country merely by reason of the proclamation. Further, the order of suspension should be
placed before Parliament and it will be free to take whatever action it deems fit.

The working of the Constitution, so far, shows that the suspension of Fundamental Rights took place rarely. That
happened as a result of the proclamation of national emergency in 1962, 1965, 1971 and 1975.

In contrast to the national emergencies mentioned above, Fundamental Rights were never suspended during any of the
emergencies proclaimed in the States. That remains a good precedent. Even during the national emergency, suspension
of Fundamental Rights should be restricted to the absolute minimum. There have been only few instances so far of the
Union Executive behaving high-handedly towards the States or ignoring Parliament in the name of emergency. The
apprehension that the President may act as a dictator is not one of the acute discomforts of our political thinking. On
the other hand, the emergency provision has been, on the whole, justified when viewed from the experiences of the
past.
1.6 “Critical Analysis On Relationship Of Faith And Trust Between Centre And
State” (FEDERAL COMITY)
Posted On November 20, 2012 by &filed under Legal Articles.

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

Dr. B.R. Ambedkar

Introduction

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

CONSTITUTIONAL PROVISION OF CENTRE – STATE RELATIONS

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

Legislative Relations-

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

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

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

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

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

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

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

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

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

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

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

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

• Supremacy of Union Parliament during National Emergency – Article 352

• During Constitutional Emergency – Article 356

• Supremacy of Union Parliament over Concurrent List

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

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

Administrative Relations

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

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

• Responsibility of the protection of Railways – Article 257

• Appointment of Governors by Centre – Article 155

• Influence of Centre during National Emergency – Article 252

• Influence of Centre during Constitutional Emergency – Article 356

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

• Protection of Federal property in the states

• All India Services – Article 312

• To establish Inter – State Council – Article 263

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

(c) Financial Relations –

• Sources of revenue of Union Government

1. Custom and Export Duty

2. Income Tax

3. Corporation Tax

4. Estate Duty (Excluding Agriculture)

5. Excise Duty on Tobacco and other intoxicants

6. Succession Duty (Excluding Agriculture)

7. Inter – State Trade Tax, etc..

• Sources of Revenue of State Governments

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

• Grants to the States – Article 275

• Appointment of Finance Commission – Article 280

• Financial Emergency – Article 360

• Provision of Comptroller and Auditor General

Historical background

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

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

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

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

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

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

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

CRITICAL EVALUATION OF CENTRE – STATE RELATIONS :

1. APPOINTMENT OF GOVERNOR

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

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

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

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

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

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

2. .PRESIDENTS ASSENT TO THE STATE BILLS

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

The governor is expected by the constitution to reserve only such bills for the president ,s assent as are patently

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

FINANCIAL RELATION

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

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

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

1. the economic condition prevailing with in their boundaries ;

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

EXTRA CONSTITUTIONAL AUTHORITY

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

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

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

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

2. Discretionary grant by the central government

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

THE ONLY LASTING SOLUTION

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

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

Recommendations of Sarkaria Commission

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

President ‘s Rule: Limits & checks

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

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

A nine-member Bench of the Supreme Court definitely construed the scope of Article 356 of the Constitution, which
empowers the imposition of President’s Rule in the States, in the famous case of S.R. Bommai and others vs. Union of
India and others It went beyond State of Rajasthan vs. Union of India on the scope of judicial review. The President, who
is sworn to uphold the Constitution and the law of India, can be fully trusted to follow this ruling whenever a draft
proclamation imposing President’s Rule in any State is presented for his/her signature by the Union Council of Ministers.
The Prime Minister and the other Ministers, who have also taken the oath to abide by the Constitution, would also
appreciate the stringent conditions the court’s ruling in the Bommai case has imposed for the exercise of power under
Article 356. The court decided the case on March 11, 1994. But the detailed implications of that ruling have yet to seep
in. The ruling was followed by a verdict by a five-member Bench in the Bihar case Rameshwar Prasad vs. Union of India .
In both cases, the test of a vote by the Assembly in cases of disputed majority was approved.
It must be borne in mind that the court’s ruling in the Bommai case, which remains definitive, came in the wake of deep,
persistent public disquiet on the abuse of Article 356, a fact that is now universally admitted. The commission on Centre-
State relations, headed by Justice R.S. Sarkaria, noted in its report, submitted in 1988, the deep resentment that the
abuse of this provision caused among the States. The States were treated under the Constitution with less consideration
and less respect than a municipality. The Supreme Court ruled (in New Delhi Municipal Committee vs Union of India)
that a municipal body cannot be superseded, without notice (S.L. Kapoor vs. Jag Mohan The court said:

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

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

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

Stringent conditions

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

(1) Whether conditions in fact exist objectively which render it impossible to carry on the governance of the State in
accordance with the provisions of the Constitution; even so, this power must be used sparingly and so as not to disturb
the federal balance of power between the Union and States since federalism is part of the unamenable basic structure
of the Constitution.
(2) The State’s Assembly must not be dissolved before both Houses of Parliament have approved the proclamation made
by the President under Article 356.

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

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

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

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

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

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

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

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

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

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

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

The Honorable Dr B.R. Ambedkar: Only when the government is not carried on in consonance with the provisions laid
down for the constitutional government of the provinces. Whether there is good government or not in the Province is
not for the Centre to determine. I am quite clear on the point.
Pandit Hriday Nath Kunzru: What is the meaning exactly of the provision of the Constitution taken as a whole? The
House is entitled to know from the honourable member what is his idea of the meaning of the phrase ‘in accordance
with the provisions of the Constitution’.”

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

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

Amendments suggested in the domain of Union-State relations

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

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

PUNCHHI COMMISSION

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

RECOMMENDATIONS

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

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

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

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

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

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

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

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

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

V. The panel also feels that governors should have the right to sanction prosecution of a minister against the advice of
the council of ministers. However, it wants the convention of making them chancellors of universities done away with.
VI. As for qualifications for a governor, the Punchhi commission suggests that the nominee not have participated in
active politics at even local level for at least a couple of years before his appointment. It also agrees with the Sarkaria
recommendation that a governor be an eminent person and not belongs to the state where he is to be posted.

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

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

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

X. Endorsing an NCRWC recommendation, it says appointment of governor should be entrusted to a committee

comprising the Prime Minister, Home Minister, Speaker of the Lok Sabha and chief min¬ister of the concerned state. The
Vice-President can also be involved in the process.

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

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

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

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

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

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

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

Limits of the existing structure

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

First, no matter how well institutions are designed, their effective functioning is dependent upon, and can be impeded
by, the larger political context in which they operate. For example, the ISC was set up in 1990 when the Congress Party
had been voted out of power and first met in 1992. Then, after the Congress Party was voted back in, no meetings were
held for the next six years – thus undermining the ISC.
Second, in the period of reform, new decision-making centers emerged and diminished the role of some of the existing
consultative bodies. This is clearly the case of the NDC. Today, the NDC’s approval is required for finalizing the five-year
plans, but, effectively, the planning priorities are determined by the Planning Commission, a body of the central
government.

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

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

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

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

Along with these critical issues of the needed reordering of centre-state relations in the financial sphere, there are
important and long-pending demands for changes in the centre-state relations in the administrative and legislative
spheres as well. The most vital issue in administrative matters is related to the blatant and repeated political abuse of
article 356 of the constitution by the central government to dislodge the democratically elected state governments. It is
therefore urged, as per discussions in the Inter-State Council, that there must be strong safeguards against the abuse of
article 356, keeping in view the judicial pronouncements by the Supreme Court in the S R Bommai case . This must be
done through constitution amendments, without further delay, so that article 356 is not used except in the case of a
serious threat to the secular fabric of the country. Similarly, a constitutional amendment is needed against abuse of
article 355, so that central government can send central forces only after the concerned state government requests for
it. In the legislative sphere, again with appropriate constitutional amendments, definite time limits need to be fixed for
receiving the governor’s sanction or the president’s assent for the bills passed by a state assembly.
Thus autonomy of states is compulsory because of various compulsions like social, cultural, economic, administrative
and political .In the recent years there has been growing demand for state autonomy .It has been realized that there is
great need for decentralization in the Indian federalism. The real is how to make autonomy effective and fruitful. For this
purpose there is need of following suggestion;

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

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

Conclusion

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

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

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

Ambedkar’s view was criticized by several members of the Constituent Assembly. K. Santhanam took particular
exception to the expansion of the Concurrent List as tending to blur the distinction between the Centre and the units. He
said
“In the course of time it is an inevitable political tendency of all Federal Constitutions that the Federal list grows and the
Concurrent List fades out, because when once the Central Legislature takes jurisdiction over a particular field of
legislation, the jurisdiction of the provincial legislature goes out… . We must reflect whether this is what we want and
whether this is desirable. If we do not want it, we will have to see that the Concurrent list is either restricted to the
minimum or define the scope of the Central and Provincial Jurisdiction in regard to matters mentioned in that List.”

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

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

BIBLIOGRAPHY

Primary Source

• Constitutional Assembly Debates,

• The Constitution of India

• Report of Sarkaria commission

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

SECONDARY SOURCE

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

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

• Union Public Service Commission

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

• WE THE NATION by nani palkiwala,27 edition

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

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

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

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

• AIR
1.6 A The Relation between Centre and State in India
Article shared by

The Relation between Centre and State in India!

Position of the States in Indian Union:

In India, before the formation of the federation the States were not ‘sovereign’ entities.

As such, there was no need for safeguards to protect ‘States’. On account of the exigencies of the situation, the Indian
federation has acquired characteristics which are quite different from the American model.

ADVERTISEMENTS:

(i) The residuary powers under the Indian Constitution are assigned to the Union and not to the States. However, it may
be noted that the Canadian Constitution does the same mode of distributing the powers cannot be considered as
eroding the federal nature of the Constitution.

(ii) Though there is a division of powers between the Union and the States, the Indian Constitution provides the Union
with power to exercise control over the legislation as well as the administration of the States. Legislation by a State can
be disallowed by the President, when reserved by the Governor for his consideration.

The Governor is appointed by the President of the Union and holds office “during his pleasure”. Again these ideas are
found in the Canadian Constitution though not in the Constitution of the U.S.A.

(iii) The Constitution of India lays down the Constitution of the Union as well as the States, and no State, except Jammu
and Kashmir, has a right to determine its own (State) Constitution.

ADVERTISEMENTS:

(iv) When considering the amendment of the Constitution we find that except in a few specific matters affecting the
federal structure, the States need not even be consulted in the matter of amendment of the Constitution. The bulk of
the Constitution can be amended by a Bill in the Union Parliament being passed by a special majority.

(v) In the case of the Indian Constitution, while the Union is indestructible, the States are not. It is possible for the Union
Parliament to reorganise the States or to alter their boundaries by a simple majority in the ordinary process of
legislation.

The ‘consent’ of the State Legislature concerned is not required; the President has only to ‘ascertain’ the views of the
Legislatures of the affected States. The ease with which the federal organisation may be reshaped by an ordinary
legislation by the Union Parliament has been demonstrated by the enactment of the States Reorganisation Act, 1956. A
large number of new States have, since, been formed.
(iv) Under the Indian Constitution, there is no equality of representation of the States in the Council of States. Hence, the
federal safeguard against the interests of the lesser States being overridden by the interests of the larger or more
populated States is absent under our Constitution. Its federal nature is further affected by having a nominated element
of twelve members against 238 representatives of the States and Union Territories.

Distribution of Powers: Legislative, Administrative and Financial:

Our Constitution is one of the very few that has gone into details regarding the relationship between the Union and the
States. A total of 56 Articles from Article 245 to 300 in Part XI and XII are devoted to the State-Centre relations. Part XI
(Articles 245-263) contains the legislative and administrative relations and Part XII (Articles 246-300) the financial
relations.:

By going into great details of the relations, the Constitution framers hope to minimize the conflicts between the centre
and the states. By and large, the confrontations between the two have been minimal.

Legislative Relations (Articles 245-255):

From point of view of the territory over which the legislation can have effect, the jurisdiction of a State Legislature is
limited to the territory of that State. But in the case of Parliament, it has power to legislate for the whole or any part of
the territory of India i.e.

States, Union Territories or any other areas included for the time being in the territory of India. Parliament has the
power of ‘extraterritorial legislation’ which means that laws made by the Union Parliament will govern not only persons
and property within the territory of India, but also Indian subjects resident and their property situated anywhere in the
world. Only some provisions for scheduled areas, to some extent, limit the territorial jurisdiction of Parliament.

Legislative Methods of the Union to Control over States:

(i) Previous sanction to introduce legislation in the State Legislature (Article 304).

(ii) Assent to specified legislation which must be reserved for consideration [Article 31 A (1)].

(iii) Instruction of President required for the Governor to make Ordinance relating to specified matters [Article 213(1)].

(iv) Veto power in respect of other State Bills reserved by the Governor (Article 200).

The Three Lists:

As for the subjects of legislation the Constitution has adopted, as if directly from the Government of India Act, 1935, a
three-fold distribution of legislative powers between the Union and the States, a procedure which is not very common
with federal constitutions elsewhere.

The Constitutions of the United States and Australia provided a single enumeration of powers—power of the Federal
Legislature— and placed the residuary powers in the hands of the States.
Canada provides for a double enumeration, dividing the legislative powers between the Federal and State legislatures.
The Indian Constitution introduces a scheme of three-fold enumeration, namely, Federal, State and Concurrent.

List I includes all those subjects which are in the exclusive jurisdiction of Parliament.

List II consist of all the subjects which are under exclusive jurisdiction of the State Legislature, and

List III which is called the Concurrent List, consists of subjects on which both Parliament and the State legislatures can
pass laws.

(i) Union List:

List I, or the Union List, includes 99 items, including residuary powers, most of them related to matters which are
exclusively within the jurisdiction of the Union. Subjects of national importance requiring uniform legislation for the
country as a whole are inducted in the Union List.

The more important examples are defence, armed forces, arms and ammunition, atomic energy, foreign affairs, coinage,
banking and insurance. Most of them are matters in which the State legislatures have no jurisdiction at all.

But, there are also items dealing with inter-state matters like inter-state trade and commerce regulation and
development of inter-state rivers and river valleys, and inter-state migration, which have been placed under the
jurisdiction of the Union Parliament.

Certain items in the Union List are of such a nature that they enable Parliament to assume a role in certain spheres in
regard to subjects which are normally intended to be within the jurisdiction of the States; one such example is that of
industries.

While assigned primarily to the State List; industries, the control of which by the Union is declared by a law of
Parliament, to be expedient in the public interest’ are to be dealt with by parliamentary legislation alone. Parliament, by
a mere declaration, can take over as many industries as it thinks fit.

It is under this provision that most of the big industries, like iron, steel and coal, have been taken over by Parliament
under its jurisdiction. Similarly, while museums, public health, agriculture etc. come under State subject, certain
institutions like the National Library and National Museum at New Delhi and the Victoria Memorial in Calcutta have been
placed under the jurisdiction of Parliament on the basis of a plea that they are financed by the Government of India
wholly or in part and declared by a law of Parliament to be institutions of national importance.

The university is a State subject but a number of universities have been declared as Central Universities and placed
under the exclusive jurisdiction of Parliament. Elections and Audit, even at the State level, were considered matters of
national importance. The Extensive nature of the Union List thus places enormous powers of legislation even over affairs
exclusively under the control of the States in the hands of Parliament.
(ii) State List:

List II or the State List, comprises 61 items or entries over which the State Legislature has exclusive power of legislation.
The subject of local importance, where variations in law in response to local situations may be necessary, has been
included in the State List.

Some subjects of vital importance in the list are State taxes and duties, police, administration of justice, local self-
government, public health, agriculture, forests, fisheries, industries and minerals.

But, in spite of the exclusive legislative jurisdiction over these items having been given to the States, the Constitution,
through certain reservations made in the Union List has given power to Parliament to take some of these items under its
control. Subject to these restrictions, one might say, the States have full jurisdiction over items included in the State list.

(iii) Concurrent List:

The inclusion of List III or the Concurrent List, in the Constitution gives a particular significance to the distribution of
legislative power in the Indian federal scheme. The Concurrent List consists of 52 items, such as criminal law and
procedure, civil procedure, marriage, contracts, port trusts, welfare of labour, economic and social planning.

These subjects are obviously such as may at some time require legislations by Parliament and at other by a State
Legislature. The provision of a Concurrent List has two distinct advantages.

In certain matters in which Parliament may not find it necessary or expedient to make laws, a Sate can take the initiative,
and if other States follow and the matter assumes national importance, Parliament can intervene and bring about a
uniform piece of legislation to cover the entire Union Territory.

Similarly, if a State finds it necessary to amplify a law enacted by Parliament on an item included in the Concurrent List in
order to make it of a greater use of its own people, it can do so by making supplementary laws.

The items included in the Concurrent List can be broadly divided into two groups-those dealing with general laws and
legal procedure, like criminal law, criminal procedure, marriage, divorce, property law, contracts etc, and those dealing
with social welfare such as trade unions, social security, vocational and technical training of labour, legal, medical and
other professions etc.; while the items coming under the first group are of primary importance to the Union
Government, they have been left, by convention, to Parliament. In matters of social welfare, it is open to the State
legislatures either to take the initiative in making laws or to enact laws which are supplementary to the Parliamentary
laws.

Predominance of Union Law:

In case of over-lapping of a matter between the three Lists, predominance has been given to the Union Legislature, as
under the Government of India Act, 1935. Thus, the power of the State Legislature to legislate with respect to matters
enumerated in the State List has been made subject to the power of the Union Parliament to legislate in respect of
matters enumerated in the Union and Concurrent Lists, and the entries in the State List have to be interpreted
accordingly.
In the Concurrent sphere, in case of repugnancy between a Union and a State law relating to the same subject, the
former prevails. If however, the State law was reserved for the assent of the President and has received such assent, the
State law may prevail notwithstanding such repugnance. But it would still be competent for Parliament to override such
State law by subsequent legislation.

Residuary Powers:

The Constitution vests the residuary power, i.e., the power to legislate with respect to any matter not enumerated in
any one of the three Lists in the Union Legislature (Art. 248). It has been left to the courts to determine finally as to
whether a particular matter falls under the residuary power or not.

It may be noted, however, that since the three lists attempt an exhaustive enumeration of all possible subjects of
legislation, and courts generally have interpreted the sphere of the powers to be enumerated in a liberal way, the scope
for the application of the residuary powers has remained considerably restricted.

Expansion of the Legislative Powers of the Union under Different Circumstances:

(a) In the National Interest:

Parliament shall have the power to make laws with respect to any matter included in the State List for a temporary
period, if the Council of States declares by a resolution of 2/ 3 of its members present and voting, that it is necessary in
the national interest.

(b) Under the Proclamation of National or Financial Emergency:

In this circumstance, Parliament shall have similar power to legislate with respect to State Subjects.

(c) By Agreement between States:

If the Legislatures of two or more States resolve that it shall be lawful for Parliament to make laws with respect to any
matters included in the State List relating to those States, Parliament shall have such power.

It shall also be open to any other State to adopt such Union legislation in relation to itself by a resolution passed on
behalf of the State legislature. In short, this is an extension of the jurisdiction of the Union Parliament by consent of the
Legislatures.

(d) To implement treaties:

Parliament shall have the power to legislate with respect to any subject for the purpose of implementing treaties or
international agreements and conventions.

(e) Under a Proclamation of Failure of Constitutional Machinery in the States:

When such a Proclamation is made by the President, the President may declare that the powers of the Legislature of the
State shall be exercisable by or under the authority of Parliament.
Administrative Relations (Articles 256-263):

The distribution of executive powers between the Union and the States follows, in general, the pattern of distribution of
the legislative powers. The executive power of a State is treated as coextensive with its legislative powers, which means
that the executive power of a State extends only to its territory and with respect to those subjects over which it has
legislative competence.

Looking at from the point of view of the Union Government, we can say that the Indian Constitution provides exclusive
executive power to the Union over matters with respect to which Parliament has exclusive powers to make laws, (under
List I of Schedule VII) and over the exercise of powers conferred upon it, under Article 73, by any treaty or agreement at
the international level. On the other hand, the States have exclusive executive powers over matters included in List II.

In matters included in the Concurrent List (List III) the executive function ordinarily remains with the States, but in case
the provisions of the Constitution or any law of Parliament confer such functions expressly upon the Union, the Union
Government is empowered to go beyond giving directions to the State executive to execute a Central law relating to a
Concurrent subject and take up the direct administration of Union law relating to any Concurrent subject.

In the result, the executive power relating to Concurrent subjects remains with the States, except in two cases-(a) Where
a law of Parliament relating to such subject vests some executive functions specifically in the Union, e.g., the Land
Acquisition Act, 1894; the Industrial Disputes Act, 1947 [Provision to Art. 73(1)].

So far as these functions specified in such Union Law are concerned, it is the Union and not the States which shall have
the executive power while the rest of the executive power relating to the subjects shall remain with the States, (b)
where the provisions of the Constitution itself vest some executive functions upon the Union.

Thus, (i) the executive power to implement any treaty or international agreement belongs exclusively to the Union; (ii)
the Union has the power to give directions to the State Governments as regards the exercise of their executive power in
certain matters.

The Constitution has devised techniques of control over the States by the Union to ensure that the State governments
do not interfere with the legislative and executive of the Union. Some of these administrative avenues of control are as
under:

In Normal Times:

(i) The power to appoint and dismiss the Governor (Article 155-156)

(ii) The power to appoint other dignitaries in the State such as judges of the High Court, members of the State Public
Service Commission (Article 217, 317).

There are some other specified agencies for Union Control

(i) Directions to the State Government:

The Constitution prescribes a Coercive Sanction for the enforcement of the directions issued under any of the foregoing
powers, namely the power of the President to make a Proclamation under Article 356.
(ii) Delegation of Union Functions:

While Legislating on a Union Subject, Parliament may delegate powers to the State Governments and their officers in so
far as the Statute is applicable in the respective States [Article 258 (2)].

(iii) All-India Services:

Besides the person serving under the Union and the States, there are certain services which are ‘common to the Union
and the States’. There are called ‘All-India Services’ of which the Indian Administrative service and the Indian Police
Service are the existing examples [Article 312 (2)].

The Indian Constitution has provision for the Organisation of certain all-India services, recruited and controlled by the
Union Government as far as their general administration is concerned. The British Government had instituted the Indian
Civil Services (ICS) in order to establish a kind of direct control over the provincial administration.

The idea was adopted by the Constituent Assembly and, under Article 312; power has been given to the Council of
States, by a resolution supported by not less than a two-thirds majority of the members present and voting, to
constitute all- India service common to the Union and the States.

It was further provided that the Indian Administrative Service (IAS) and the Indian Police Service (IPS), which had been
constituted before the Constitution came into force, would be deemed to have been constituted under this Article. The
Union Government is able to penetrate quite deep into the administrative affairs of the States through these all India
services.

The IAS and the IPS are not the only all-India services. Serial new services, governed by the same conditions, have been
added, like the Indian Engineering Service, the Indian Economic Service, the Indian Statistical Service, the Indian
Agriculture Service and the Indian Education Service.

(iv) Grant-in-Aid:

The Parliament is given such powers to make such grants as it may deem necessary to give financial assistance to any
State which is in need of such assistance (Article 275). Besides this, the Constitution provides for specific grants on the
following two matters:

(i) (a) For schemes of development;

(b) For welfare of scheduled tribes;

(c) For raising the level of administration of scheduled areas.

(ii) To the State of Assam, for the development of the tribal areas in that State [Article 275 (1)]

(v) Inter-state Council:

Article 263 says that the President is empowered to establish an inter-State Council. The Constitution assigned three fold
duties to this body.
(a) To investigate and discuss subjects of common interest between the Union and the States or between two or more
States;

(b) Research in such matters as agriculture, forestry, public health etc., and

(c) To make recommendations for co-ordination of policy and action relating to such subjects.

The Sarkaria Commission has recommended the Constitution of a permanent inter-State Council. Such a council,
consisting of six Union Cabinet Ministers and the Chief Ministers of all the States, has been created in April 1990.

(vi) Inter-State Commerce Council:

For the purpose of enforcing the provisions of the Constitution, relating to the freedom of trade, commerce and
intercourse throughout the territory of India (Article 301-305), Parliament is empowered to constitute as authority
similar to the Inter-State Commerce Commission in the U.S.A. and to confer on such authority such powers and duties as
it may deem fit (Article 307).

(vii) Extra-Constitutional Bodies:

Apart from the above Constitutional agencies for Union Control, there are some advisory bodies and conferences which
held at the Union level which further the co-ordination of State policy and eliminate differences as between the States.

(viii) Planning Commission:

This extra-Constitutional and non-statutory body was set up by a resolution (1950) of the Union Cabinet and its main
objective was to formulate an integrated Five Year Plan for economic and social development and to act as an advisory
body to the Union Government.

(ix) National Development Council (NDC):

This council was formed in 1952 as an adjunct to the Planning Commission to associate the States in the formulation of
the Plans. The main functions of this council are:

(a) To strengthen and mobilize the efforts and resources of the nation in support of the plans;

(b) To promote common economic policies in all vital spheres; and

(c) To ensure the balanced and rapid development of all parts of the country.

(x) National Integration Council (NIC):

Another non-constitutional body was created in 1986 to deal with the welfare measures for the minorities on an all India
basis. Some of the burning issues before it were communal harmony, increased violence by secessionists, the problems
in respect of Punjab, Kashmir, and Ram Janambhoomi-Babri Masjid.
During Emergency:

In ‘Emergencies’ the government under the Indian Constitution will work as if it were a unitary government.

Some of the important Provisions during ‘Emergency’ are as under:

(i) During a Proclamation of Emergency, the power of the Union to give directions extends to the giving of directions as
to the manner in which the executive power of the State is to be exercised, relating to any matter [Article 353(a)]. (So as
to bring the State Government under the complete control of the Union, without suspending it).

(ii) Upon a Proclamation of failure of Constitutional machinery in a State, the President shall be entitled to assume to
himself all or any of the executive powers of the State [Article 356(1)].

During a Proclamation of Financial Emergency:

(a) To observe canons of financial propriety, as may be specified in the directions [Article 360(3)].

(b) To reduce the salaries and allowances of all or any class of persons serving in connection with the affairs of the Union
including the Judges of the Supreme Court and High Courts [Article 360(4)(b)].

(c) To require all Money Bills or other Financial Bills to be reserved for the consideration of the President after they are
passed by the Legislature of the State [Article 360(4)].

Financial Relations Related to the Distribution of Revenue (Article 264-281):

Financial Relations:

All feasible sources of taxation have been listed and allocated either to the Centre or to the States. These are as follows:

(i) There are certain items of revenue in the State List which are levied, collected and appropriated by the States. For
example, naval revenue etc.;

(ii) There are certain-items of revenue in the Union List which are levied, collected and appropriated by the Union, e.g.
Customs duties etc.;

(iii) There are certain duties levied by the Union but collected and appropriated by the States. For example, stamp duties
etc.;

(iv) There are certain taxes levied and collected by the Union but assigned to the States e.g. succession and estate
duties, taxes on railway fares and freights, etc;

(v) There are certain taxes levied and collected by the Union and distributed between the Union and the States, e.g.
excise duties etc.
Consolidated Funds and Public Accounts of India and of the States:

Subject to the provisions of Article 267 and to the provisions of this Chapter with respect to the assignment of the whole
or part of the net proceeds of certain taxes and duties to States, all revenues received by the Government of India, all
loans raised by that Government by the issue of treasury bills, loans or ways and means advances and all moneys
received by that Government in repayment of loans shall form one Consolidated Fund to be entitled “the Consolidated
Fund of India”, and all revenues received by the Government of a State, all loans raised by that Government by the issue
of treasury bills, loans or ways and means advances and all moneys received by that Government in repayment of loans
shall form one consolidated fund to be entitled “the Consolidated Fund of the State” [Article 266(1)].

All other public money received by or on behalf of the Government of India or the Government of a State shall be
credited to the Public Account of India or the Public Account of the State, as the case may be (Article 266(2)).

No money out of the Consolidated Fund of India or the Consolidated Fund of a State shall be appropriated except in
accordance with law and for the purposes and in the manner provided in this Constitution [Article 266(3)].

Contingency Fund:

Parliament may by law establish a Contingency Fund in the nature of an impress to be entitled “the Contingency Fund of
India” into which shall be paid, from time to time, such sums as may be determined by such law, and the said Fund shall
be placed at the disposal of the President to enable advances to be made by him out of such Fund for the purposes of
meeting unforeseen expenditure pending authorisation of such expenditure by Parliament by law under Article 115 or
Article 116 [Article 267(1)].

The Legislature of a State may by law establish a Contingency Fund in the nature of an impress to be entitled “the
Contingency Fund of the State” into which shall be paid from time to time such sums as may be determined by such law,
and the said Fund shall be placed at the disposal of the Governor of the State to enable advances to be made by him out
of such Fund for the purposes of meeting unforeseen expenditure pending authorisation of such expenditure by the
Legislature of the State by law under Article 205 or Article 206 [Article 267(2)].

Finance Commission:

Arts. 270, 273, 275 and 280 provide for the Constitution of a Finance Commission (at stated intervals) to recommend to
the President certain measures relating to the distribution of financial resources between the Union and the States, for
instance, percentage of the net proceeds of income- tax which should be assigned by the Union to the States and the
manner in which the share to be assigned shall be distributed among to the States [Art. 280].

The Constitution of the Finance Commission is laid down in Art. 280, which has to be read with the Finance Commission
(Miscellaneous Provisions) Act of 1951, which has supplemented the provisions of the Constitution. Briefly speaking, the
Commission has to be reconstituted by the President, every five years.

The Chairman must be a person having ‘experience in public affairs’, and the other four members must be appointed
from amongst the following
a) A High Court Judge or one qualified to be appointed as such;

(b) a person having special knowledge of the finances and accounts of the Government;

(c) a person having wide experience in financial matters, and administration;

(d) a person having special knowledge of economics,

(e) a person familiar with treasures needed to augment the consolidated fund of a State to supplement the resources of
the Panchayat, in the State.

It shall be the duty of the Commission to make recommendations to the President as to:

(a) the distribution between the Union and the States of the net proceeds of taxes which are to be or may be, divided
between them under this Chapter and the allocation between the States of the respective shares of such proceeds; (b)
the principles which should govern the grants-in-aid of revenues of the States out of the Consolidated Fund of India; (c)
any other matter referred to the Commission by the President in the interests of sound finance.

The First Finance Commission was constituted in 1951, with Sri Neogy as the Chairman and it submitted its report in
1953.

Some Details of Distribution:

(i) Taxes which are exclusively central, and the revenues which are wholly appropriated for the use of the Central
Government form one group. These include export duties, corporation tax, taxes on the capital value of the assets,
exclusive of agricultural land of individuals and companies, (ii) Income tax constituting a separate category in as much as
while it is the Centre which levies, fixes rates and collects the tax, it has to share the proceeds with the States as
prescribed by the President on the basis of the recommendations made by the Finance Commission. (iii) Union duties of
excise other than duties which have been given to States, which may be shared if Parliament has so decided.

The Constitution has left it to the discretion of Parliament to decide by law whether any of the union duties of excise
should be shared with the States, how these are to be shared, and how the shares are to be distributed to the States, (iv)
Taxes which are to be levied and collected by the Centre, but to be distributed entirely (except for those proceeds which
are attributable to the Union territories) to the States in accordance with such principles of distribution as may be laid
down by Parliament by law.

These taxes consist of succession and estate duties; terminal taxes on passengers and goods carried by rail, sea or air
taxes on railway fares and freights; taxes on the sale or purchase of newspapers; sale or purchase taxes on inter-State
trade, (v) Taxes levied by the Centre but collected by the States and appropriated by them for their own use.

They are stamp duties and excise duties on medicinal and toilet preparations containing alcohol; in connection with
these two taxes, the Centre only levies the tax, and fixes the rate of duty to be paid on the alcohol contained in the
medical and toilet preparations, but each State collects the tax and appropriates it for its own purpose.
Grants and Loans:

Besides the devolution of revenues the Union meets the financial needs of the State in two other ways: (i) by making
grants-in-aid of State revenues and other grants, and (ii) by giving loans. According to the Constitution, both the Union
and the States are empowered to make grants.

But by virtue of the sums at its disposal, the Union’s power is greater. The Union can make grants for purposes outside
its legislative jurisdiction, and it is under this provision that many of the large capital grants for national development
schemes are made.

Grant-in-aid may be made to a State to defray its budgetary deficits, or it may make grant-in-aid on the basis of
budgetary need, and to aid States whose revenues, even after devolution fall short of their expenditures.

Efforts are generally made to keep these grants-in-aid to a minimum by making devolution adequate. Other grants are
generally unconditional, but in certain cases, as in Assam, grants have been made for the development of backward
areas and tribes.

Besides grants-in-aid, States also sometimes depend heavily on the Union for loans. The Union government has
unlimited power to borrow either within India or outside, and may exercise this power subject only to such limits as
might be fixed by Parliament from time to time.

In the case of the States, however, their borrowing power is subject to a number of Constitutional limitations. A State
cannot borrow outside India. The State executive has the power to borrow within the territory of India, subject to many
conditions.

Borrowing Powers:

The Union has unlimited power of borrowing, upon the security of the revenues of India either within India or outside.
The Union Executive can exercise the power; subject only to such limits as may be fixed by Parliament from time to time.

The borrowing power of a State is, however, subject to a number of Constitutional limitations:

(i) It cannot borrow outside India, (ii) The State Executive shall have the power to borrow, within the territory of India
upon the security of the revenues of the State, subject to the following conditions: (a) limitation as may be imposed by
the State Legislature; (b) if the Union has guaranteed an outstanding loan of the State, no fresh loan can be raised by the
State without consent of the Union Government; (c) The Government of India may itself offer a loan to a State, under a
law made by Parliament; so long as such a loan or any part thereof remains outstanding, no fresh loan can be raised by
the State without the consent of-the Government.

Distribution of Taxes between Union and the States:

The distribution of the tax-revenue between the Union and the States, according to the foregoing principles, stands as
follows:

1. Taxes Belonging to the Union Exclusively:

(i) Customs, (ii) Corporation tax. (iii) Taxes on capital value of assets of individuals and Companies, (iv) Surcharge on
income tax, etc. (v) Fees in respect of matters in the Union List (List I).

2. Taxes belonging to the States Exclusively:

(i) Land Revenue, (ii) Stamp duty except in documents included in the Union List, (iii) Succession duty, estate duty, and
Income tax on agricultural land, (iv) Taxes on passengers and goods carried on inland waterways, (v) Taxes on lands and
buildings, mineral rights, (vi) Taxes on animals and boats, on road vehicles, on advertisements, on consumption of
electricity, on luxuries and amusements, etc. (vii) Taxes on entry of goods into local areas, (viii) Sales Tax. (ix) Tolls, (x)
Fees in respect of matters in the State List, (xi) Taxes on professions, trades, etc., not exceeding Rs. 2,500 per annum
(List II).

3. Duties Levied by the Union but Collected and Appropriated by the States:

Stamp duties on bills of Exchange, etc., and Excise duties on medicinal and toilet preparations containing alcohol, though
they are included in the Union List and levied by the Union, shall be collected by the States insofar as leviable within
their respective territories, and shall form part of the States by whom they are collected (Article 268).

4. Taxes Levied as well as Collected by the Union, but Assigned to the States within which they are Leviable:

(i) Duties on succession to property other than agricultural land, (ii) Estate duty in respect of property other than
agricultural land, (iii) Terminal taxes on goods or passengers carried by railway, air or sea. (iv) Taxes on railway fares and
freights, (v) Taxes on stock exchange other than stamp duties, (vi) Taxes on sales of and advertisements in newspapers,
(vii) Taxes on the sale or purchase of goods other than newspapers, where such sale or purchase takes place in the
course of Inter-State trade or commerce, (viii) Taxes on Inter-State consignment of goods (Article 269).

5. Taxes Levied and Collected by the Union and Distributed between Union and the States:

Certain taxes shall be levied as well as collected by the Union, but their proceeds shall be divided between the Union
and the States in a certain proportion, in order to effect an equitable division of the financial resources. These are:

(i) Taxes on income other than on agricultural income (Article 270).

(ii) Duties of excise as are included in the Union List, excepting medicinal and toilet preparations may also be distributed,
if Parliament by law so provides (Article 272).

Distribution of Non-Tax Revenue:

The principal sources of non-tax revenues of the Union are the receipts from:

Railways; Posts and Telegraphs; Broadcasting; Opium; Currency and Mint; Industrial and Commercial Undertakings of
the Central Government relating to the subjects over which the Union has jurisdiction.

Of the Industrial and Commercial Undertakings relating to Central subjects may be mentioned. The Industrial Finance
Corporation; Air India; Indian Airlines.
Industries in which the Government of India have made investments; such as the Steel Authority of India; the Hindustan
Shipyard Ltd; the Indian Telephone Industries Ltd.

The States, similarly, have their receipts from: Forests, Irrigation and Commercial Enterprises (like Electricity, Road
Transport) and Industrial Undertakings (such as Soap, Sandalwood, Iron and Steel in Karnataka, Paper in Madhya
Pradesh, Milk Supply in Mumbai, Deep-sea Fishing and Silk in West Bengal).

Role of the Planning Commissions:

The institution which is sometimes held responsible for giving the maximum strength to the forces of centralisation in
the country and yet has continued to remain an extra-statutory and extra-constitutional body is the Planning
Commission.

A Planning Commission was set up under Nehru’s Chairmanship by the Indian National Congress more than ten years
before the country became independent to draw up a national plan. It had produced some voluminous reports.

A Planning and Development Department was set up and a Development Board was organised by the British
Government during the Second World War but these were, comparatively, minor efforts. One might, therefore, say that
real planning began with the setting up of the Planning Commission in 1950.

No attempt was, however, made to take resort to legislation or to an amendment of the Constitution. It was set up by a
simple resolution of the Union Cabinet put forward by Prime Minister Nehru with himself as its Chairman, to formulate
an integrated five-year plan for the economic and social development of the country and to act as an advisory board to
the Union Government in this sphere.

But, even though the Planning Commission was set up without legislation or constitutional amendment, it has been
growing in strength from year to year. Consisting of the Prime Minister, some important Cabinet Ministers of the Union
and some non-officials, it has grown over the years as a heavy bureaucratic organisation.

The function of the Planning Commission, in theory, is to prepare a plan for the most effective and balanced utilisation
of the country’s resources, with a view to initiate “a process of development which will raise living standards and open
out to the people new opportunities for a richer and more varied life”. Its function, in other words, is to formulate a
plan.

Development being related mostly to State subjects, the implementation of the plan rests with the States. The role that
the Commission plays with regard to the States is merely advisory. Once the advice has been tendered by the Planning
Commission, it has no direct means of securing the implementation of the plan. The practice, however, is different.

The States have to depend on the Centre for financial assistance without which the plans cannot be implemented. Since
the States cannot implement the plans without financial assistance from-the Centre, and the Union would like different
States to follow a more or less uniform policy the Centre comes to exercise an immense control over the
implementation part of the plans in the States.
National Development Council (NDC):

Constituted as the another part of the Planning Commission, it works in close cooperation with the Government of India.
In order to promote coordination with the States, a National Development Council, consisting of all the Cabinet
Ministers of the Government of India, the Members of the Planning Commission and the Chief Ministers of all the
States, was set up. Having no statutory or constitutional basis, the National Development Council is an ad hoc
improvised body, but, thanks to a convention, its decisions are regarded as binding on the Centre as well as on the State
government.

It is interesting to note that there is no body analogous to the Planning Commission at the State level, though generally
there are Planning Departments and sometimes Development Commissioners in the States. All planning is done at the
Union level and it is the responsibility of the States to implement the plans.

Part XI Articles 245-293: A Combination of Conflicts and Cooperation:

The relationship between the Centre and the States covers a wide range and embraces a very large part of the functions
and activities in the administrative, social and economic spheres. Since 1950, many events have occurred which have a
direct or indirect bearing on the Centre-State relations.

For instance, the Planning Commission was set up by a resolution of the Government of India in March, 1950 with the
object of accelerating the economic growth of the country and to meet the social urge for the extension of social
services.

Though not a creation of the Constitution, not even endowed with a statutory sanction, the Planning Commission
assumed the role of the architect of India’s destiny. There were widespread complaints and it was contended that Five-
Year Plans had reduced the federal structure to almost a unitary system.

The reorganisation of the States in 1956 and thereafter, especially with the emergence of non-Congress Governments in
some States after the 1967 gave the issue of Centre-State relations a new dimension and importance.

Grievance of States in General against the Centre:

(i) The States regard as inadequate the resources placed at their disposal and demand transfer of more financial
resources. The tight control exercised by the Centre over the financial institutions of India restricts the action of States.

The States have, consequently, to look to the Centre for funds in case of unforeseen calamities or to carry out various
schemes. They do not see eye to eye with the Centre on the issue of overdraft facilities and debt and repayment
liabilities of State governments.

(ii) The Centre has the prerogative to decide finally the location of various industries and projects. Undue delays in
clearance of projects have adversely affected the interests of the States.

(iii) The States resent the Centre’s encroachment into their sphere, evidence in the transfer of subjects from the State
List to the Concurrent List. It may be noted that even the Congress-ruled States have objected to this. Nor do the States
like the persistence of the Centre in the matter of getting sales tax abolished.
(iv) The States disapprove of the Centre’s practice of unilaterally increasing the wages and salaries of its staff, as this
creates problems for the State governments vis-a-vis their own staff. The administered prices are controlled by the
Centre, and arbitrary and drastic increase in the prices upset State budgets.

(v) Resentment is also caused because of conflicting interests in location of new and important projects and industries.

Grievances of ‘Opposition-Ruled’ States against the Centre:

Besides the general grievances stated above, there are some specially felt by the States ruled by parties different from
that of ruling at the Centre.

(i) They are critical of the role of the Governors; the manner of their appointment, transfers and dismissals. They feel
that party considerations outweigh constitutional conventions in the matter Of Governors’ appointment. They see the
Governor as the Centre’s agent.

(ii) They resent the frequent (and sometimes arbitrary) imposition of President’s Rule and dismissal of State
governments. This is seen as unwarranted and unconstitutional action on the Centre’s part.

(iii) The State governments resent deployment of paramilitary forces such as CRPF, RPF, Central Industrial Security Force,
etc. in the States without requisition from the States.

(iv) The States allege that the Centre shows little respect for the views expressed by State Chief Ministers or Ministers at
conferences convened by the Centre. The Centre is alleged to expect unquestioned submission by the State
governments like the appointment of Commission of inquiry by the Centre against the governments and ministries,
invariably, of those States ruled by parties other than that at the Centre.

Centre’s Grievances against States:

The Centre, for its part, feels displeased at the attitude of the States over various issues. Its aim is to achieve equitable
development of the country. It feels perturbed at the objections of the more advanced States over its special
concessions and measures to develop the backward areas.

The Centre also alleges that State governments tend to divert funds allocated for a particular scheme to other purpose.
The Centre also resents the States’ claiming credit for the successful implementation of Centrally-sponsored projects.

Reforming Centre-State Relations:

Some of the major recommendations made by different committees and teams are as under:
1. The Setalvad Study Team:

The Setalvad Study Team had recommended the Constitution of an inter- State Council composed of the Prime Minister
and other central ministers holding key portfolios, Chief Ministers and others, invited or co-opted. It suggested measures
to rationalize the relationship between the Finance Commission and the Planning Commission.

Besides, it recommended that the office of Governor be filled by a person having ability, objectivity and independence
and the incumbent must regard himself as a creation of the Constitution and not as an errand boy of the Central
Government

2. The Administrative Reforms Commission:

The Administrative Reforms Commission noticed that the Central Government had even moved into the fields
earmarked for the States under the Constitution and asked it to withdraw from such areas.

It recommended the setting up of an inter-State Council but made a novel suggestion about its composition. Instead of
giving seats in this body to all the Chief Ministers, it wanted to have five representatives one each from the five zonal
councils.

Much more importantly, the ARC highlighted the need for formulation of guidelines for governors in the exercise of their
discretionary powers. This would ensure uniformity of action and eliminate all suspicions of partnership or arbitrariness.

The question whether a Chief Minister enjoys majority support or not should be tested on the floor of the Legislature
and for this he should summon the Assembly whenever a doubt arises.

It also opined that when a ministry suffers a defeat in the Legislative Assembly on major policy issues and the outgoing
chief minister advises the governor to dissolve the Assembly with a view to obtaining the verdict of the electorate, the
governor should normally accept the advice.

3. Rajamannar Committee Report:

The DMK government of Tamil Nadu appointed a Commission with a direction to suggest changes in the existing level of
Union-State relations. Their terms of reference were to examine the entire question regarding the relationship that
should exist between the Centre and the States in a federal set-up and to suggest amendments to the Constitution so as
to “secure utmost autonomy to the States.”

The Committee headed by P.V. Rajamannar, a retired Chief Justice of Madras High Court, presented its report on May
27, 1971. Some of the important recommendations of the Committee were:

(i) The Committee recommended the transfer of several subjects from the Union and Concurrent Lists to the State List. It
recommended that the ‘residuary power of legislation and taxation’ should be vested in the State Legislatures.

(ii) An Inter-State Council comprising Chief Ministers of all the States or their nominees with the Prime Minister as its
Chairman should be set up immediately.
(iii) The Committee recommended the abolition of the existing Planning Commission and that its place must be taken by
a statutory body, consisting of scientific, technical, agricultural and economic experts, to advise the States which should
have their own Planning Boards.

(iv) The Committee advocated deletion of those articles of the Constitution empowering the Centre to issue directives to
the States and to take over the administration in a State. The Committee was also opposed to the emergency powers of
the Central Government and recommended the deletion of Articles 356, 357 and 360.

(v) The Committee recommended that every State should have equal representation in the Rajya Sabha, irrespective of
population.

(vi) The Governor should be appointed by the President in consultation with the State Cabinet or some other high power
body that might be set up for the purpose and once a person had held this office, he should not be appointed to any
other office under the Government.

(vii) On recruitment to the services, the Committee recommended that Article 312 should be so amended as to omit the
provision of the creation of any new All-India cadre in future.

(viii) The High Courts of States should be the highest courts for all matters falling within the jurisdiction of States.

(ix) The Committee said that ‘territorial integrity’ of a State should not be interfered with in any manner except with the
consent of the State concerned.

(x) It recommended that the States should also get a share of the tax revenues from corporation tax, customs and export
duties and tax on the capital value of assets and also excise duties.

4. Sarkaria Commission Report:

In view of the various problems which impeded the growth of healthy relations between the Centre and the States, the
Central Government set up a Commission in June 1983, under the Chairmanship of Justice R.S. Sarkaria mainly to
suggest reforms for an equitable distribution of powers between the Union and the States. The Commission submitted
its report in 1988.

Major Recommendations:

(i) Though the general recommendations tilt towards the Centre – advocating the unity and integrity of the nation, the
Commission suggested that Article 258 (e.g. the Centre’s right to confer authority to the States in certain matters)
should be used liberally.

(ii) Minimal use of Article 356 should be made and all the possibilities of formation of an alternative government must
be explored before imposing President’s Rule in the State. The State Assembly should not be dissolved unless the
proclamation is approved by the Parliament.
(iii) It favoured the formation of an Inter-Government Council consisting of the Prime Minister and the Chief Ministers of
States to decide collectively on various issues that cause friction between the Centre and the States.

(iv) It rejected the demand for the abolition of the office of Governor as well as his selection from a panel of names given
by the State Governments. However, it suggested that active politicians should not be appointed Governors.

When the State and the Centre are ruled by different political parties, the Governor should not belong to the ruling party
at the Centre. Moreover, the retiring Governors should be debarred from accepting any office of profit.

(v) It did not favour disbanding of All India Services in the interest of the country’s integrity. Instead, it favoured addition
of new All India Services.

(vi) The three-language formula should be implemented in its true spirit in all the States in the interest of unity and
integrity of the country.

(vii) It made a strong plea for Inter-State Councils.

(viii) The Judges of the High Courts should not be transferred without their consent.

(ix) It did not favour any drastic changes in the basic scheme of division of taxes, but favoured the sharing of corporation
tax and ‘every of consignment tax.

(x) It found the present division of functions between the Finance Commission and the Planning Commission as
reasonable and favoured the continuance of the existing arrangement.

Bargaining Federalism: Emerging Trends:

The end of one party rule in the Centre after the debacle of the Congress in 1996 has seen five national elections and
governments in 1989, 1991, 1996, 1998 and 1999. In between 1996-97 the Central Government was run by the United
Front made up of regional parties.

The regional leaders like Chandrababu Naidu, Karunanidhi, Mulayam Singh Yadav, G.K. Moopnar, Prafulla Kumar
Mohanta emerged as the Prime Minister maker at the centre. With 24 allies, some of them volatile, Vajpayee has
managed to run the coalition government successfully, because of bargaining.

The government’s stability depended on its bargaining capacity coping with the diverse demands put up by the allies.
The new emerging trend that is seen is that the regional parties forming the government in various provinces and they
start the process of political bargaining with the coalition government at the centre.

This bargaining for sharing power at the Centre, apparently for the fulfillment of regional aspirations, was evident in the
formation of the government after 1998, and 1999 elections.

1. Whether it was Mamta Banerjee wanting a Bengal Package, Telegu Desam Party wanting Central grants or the
Lok Sabha speakership, or Miss Jayalalitha demanding waters from the Cauvery or Samata Party setting up a
New Railway Zone in Bihar—all have tried to extract the maximum share of the spoils and to seek solutions of
the problems in their respective states.
1.7 Constitutional Provisions of the Scheduled and Tribal Areas of India
Article shared by

Constitutional Provisions of the Scheduled and Tribal Areas of India!

The Constitution of India provides for uniform rule over the whole country but certain regions of the country are
governed by special provisions.

These provisions ensure the protection of cultural identifies customs and economic and political interests of the original
inhabitants of these areas.

These regions include the tribal hills of the North Eastern States, i.e., Assam, Arunachal Pradesh, Manipur, Nagaland,
Mizoram, Meghalaya and Tripura, the state of Jammu and Kashmir and the regions known as the “Scheduled Areas”.

“The Scheduled Areas” are those tribal inhabited areas which are located in other parts of the country than the North-
East India. These areas are located in the states of Andhra Pradesh, Bihar, Chhattisgarh, Gujarat, Himachal Pradesh,
Madhya Pradesh, Jharkhand, Maharashtra, Orissa and Rajasthan. Besides these areas, some other regions of the country
also are governed by the special provisions.

Furthermore, some states have been clamouring to be accorded Special Category States (SCS), though there are no
special provisions for them in the constitution. Placement in such category would entitle them to get special assistance
to development-like increase in the grant-in-aid in comparison to the loan.

While the loans have to be repaid to the lender, the grant-in-aid has not to be re-paid. Orissa, Bihar and the newly
created state of Uttaranchal have demanded to be included in the SCS.

Creation of Autonomous District:

The Sixth Schedule of the Constitution of India created Autonomous Districts within Assam in order to preserve tribal
autonomy and protect the cultural and economic interests of the hill tribes. The hill regions of North-East India have a
history of being governed by different criterion in comparison to the rest of India.

ADVERTISEMENTS:

While most of India with the exception of the princely states was governed by the standard colonial administration, the
hill regions of Assam were ruled by the British indirectly. The British did not interfere with their traditional system of
authority.

The issues relating to land, inheritance, forest, dispute resolutions, etc., were dealt with according to the customary
laws, and through the arbitration of clan and tribal chiefs. They were declared “backward areas” according to the Gov-
ernment of India Act, 1919.
The Government of India Act, 1935 turned them into, “excluded” and “partially excluded” areas. There was some
differences between the “excluded” and “partial excluded” areas. The former were not represented in the legislature of
Assam though they were located in the province of Assam.ADVERTISEMENTS:

The “partially excluded” area was privileged to have some legislative experience within the state of Assam. The
“excluded areas” were administered by the Governor-in-Council as his “reserved jurisdiction”. On the “partially
excluded” areas there was some authority of the provincial legislature. Jurisdiction of the courts of British India was
limited in such areas.

The British India government placed the hill region of Assam in the “excluded category” because of the expediency of
their policy-orientation. Finding the cost of administration not being compensated by the revenue returns, the British
found it more expedient not spend on running the administration of this region.

Rather the hills were left to be governed by their traditional rule, which did not cost them anything. Besides, the people
in this area had been averse to the notion of any outsider ruling over them. Any intrusion or its apprehension into their
affairs was met with opposition and hostility.

In order to retain their distinctness, the British mooted a plan to bring all areas of the North-East along with hills of
Burma under a “Crown Colony”. The plan to create a “Crown colony” was a secret plan and was known as the “Coupland
Plan” named after-Reginald Coupland.

This suggestion was rejected by the Indian National Congress. But the need to retain the distinctness of this region was
recognised by providing special provisions regarding their governance.

These provisions were included on the basis of the recommendations of the North-East Frontier (Assam), Tribal and
Excluded Area Sub-Committee of the Advisory Committee of the Constituent Assembly of India.

The subcommittee was known as Bordoloi sub-committee named after its chairman Gopinath Bordoloi, a member of the
Constituent Assembly, and the then Prime Minister of Assam.

The main recommendation of Bordoloi Sub-committee was establishment of Autonomous District Councils and Regional
Councils for the tribal areas within the state of Assam. With the commencement of the Constitution on January 26,
1950, Autonomous District Councils came into existence in the hill district of Assam except the Naga Hills (suffering from
the separatist violence) and extremely backward Frontier Tracts. After the reorganisation of North-East India there was a
restructuring of the District Councils. In 1984, the VI Schedule was extended to Tripura.

Special Provisions:

Article 244 of the Constitution makes special provisions for the administration of certain areas called “Scheduled Areas”
in States other than Assam, Meghalaya, Tripura and Mizoram even though such areas are situated within a State or
Union Territory, presumably because of the backwardness of the people of these areas. Subject to legislation by
Parliament, the power to declare any area as a “Scheduled Area” is given to the President (Fifth Schedule), and the
President has made the Scheduled Areas Order, 1950, in pursuance of this power.
These are areas inhabited by Tribes specified as ‘Scheduled Tribes’, in States other than Assam, Meghalaya or Tripura.
Special provisions for the administration of such areas are given in the Fifth Schedule.

Tribal Areas:

The tribal areas in the States of Assam, Meghalaya, Tripura and Mizoram are separately dealt with and provisions for
their administration are to be found in the Sixth Schedule to the Constitution.

Part X of the Constitution is concerned with the administration of Scheduled Areas and Tribal Areas.

The Constitution makes special provisions for the administration of certain areas called Scheduled Areas, presumably
because of the backwardness of the people of these Areas. Subject to legislation by Parliament, the power to declare an
area as a “Scheduled area” is given to the President and the President has made the Scheduled Areas Order, 1950, in
pursuance of this power.

The tribal areas in the States of Assam, Meghalaya and Mizoram area separately dealt with and provision for their
administration are to be found in the Sixth Schedule to the Constitution.

System of Administration:

The Fifth Schedule of the Constitution deals with the administration and control of Scheduled Areas as well as of
Scheduled Tribes in States other than Assam, Meghalaya and Tripura. The main features of the administration provided
in this Schedule are as follows:

The Executive power of the Union shall extend to giving directions to the respective States regarding the administration
of the Scheduled Areas.

The Governors of the State in which there are “Scheduled areas” have to submit reports to the President regarding the
administration of such Areas, annually or whenever required by the President. Tribes Advisory Councils are to be
constituted to give advice on such matters as welfare and advancement of the Scheduled Tribes.

The Governor is authorised to direct that any particular Act of Parliament or of the Legislature of the State shall not
apply to a Scheduled Area or shall apply, only subject to exceptions or modifications. The Governor is also authorised to
make regulations to prohibit or restrict the transfer of land by, or among members of the Scheduled Tribes.

These provisions of the Constitution relating to the administration of the Scheduled Areas and Tribes may be altered by
Parliament or by ordinary legislation.

The Constitution provides for the appointment of a Commission to report on the administration of the Scheduled Areas
and the welfare of the Scheduled Tribes in the States.

The President may appoint such Commission at any time, but the appointment of such Commission at the end of 10
years from the commencement of the Constitution was obligatory.

Accordingly a Commission under the chairmanship of Shri Dhebar was appointed in 1960. Its report was submitted in
1961. The tribal areas are to be administered as autonomous districts.
These autonomous districts are not outside the executive authority of the Government of Assam but provision is made
for the creation of District Councils and Regional Councils for the exercise of certain legislative and judicial functions.

These Councils are primarily representative bodies and they have got the power of law-making in certain specified fields
such as management of forests other than a reserved forest, inheritance of property, marriage and social customs, and
the Government may also confer upon these councils the power to try certain suits or offences.

The Fifth Schedule for Scheduled Areas:

For the protection of the interests and cultural identity of the tribal’s residing in parts of the country other than hills of
the North-East, there are special provisions in the Constitution of India.

These areas are known as the Scheduled areas and the provisions regarding them are enshrined in the V Schedule of our
constitution.

Parliament has powers to change these by ordinary legislation without amending the constitution. The main provisions
are as follows:

(i) The executive power of the states extends to the scheduled areas;

(ii) The Governor of these states has to submit the report to the President regarding the administration of such areas on
the annual basis or whenever required to do so;

(iii) Tribes Advisory Councils have to be constituted to advise the government on the matters relating to the welfare and
advancement of the Schedules Tribes-these matters are those which may have been referred to the councils by the
Governor;

(iv) The Governor is authorised to direct the state government not to apply in the Scheduled Areas any Act of Parliament
of or the state Legislature or apply it subject to exceptions or modifications;

(v) The Governor is authorised to make regulations to prohibit or restrict transfer of land by or among the members of
Scheduled Tribes, to regulate the allotment of land and the business of money- lending. All such regulations made by the
Governor must have the assent of the President;

(vi) The President may appoint a Commission to report on the administration of the Scheduled Areas and Scheduled
Tribes in the state. As it was obligatory to appoint such Commission at the end of first ten years of the implementation
of the Constitution, the first Commission was appointed in 1960. The Commission submitted its report in 1961.

Formation of an Autonomous State Comprising Certain Tribal Areas:

According to Article 244 of the Constitution the VI Schedule lays down special provisions for the protection of the
interest and cultural identities of the hill tribe of North. The most important provisions of the VI Schedule is creation of
the Autonomous District Councils.
While tribal’s of some of the North-Eastern states have the Autonomous District Councils, Arunachal Pradesh, Nagaland
and greater part of Mizoram do not have this. The Inner Lines Regulation exists for three states, i.e., Arunachal Pradesh,
Mizoram and Nagaland, and North Cachar district of Assam.

Amendments for Sts Panel, Protection of Non-Tribals’ Rights Passed:

The Lok Sabha unanimously passed two Constitution Amendment Bills. The first Bill empowers the Government to set up
a separate National Commission for the Scheduled Tribes, while the second bill seeks to protect the rights of the non-
tribal in the newly-elected Bodo Territorial Council (BTC) in Assam.

The LS passed the Constitution (Eighty-Ninth Amendment) Act, 2003 making provision for the setting up of a National
Commission for the Scheduled Tribes, and another to keep intact the existing representation of tribal’s and non-tribal’s
in the Assam Legislative Assembly.

The amendment focuses on the need for setting up a separate commission for the Scheduled Tribes by bifurcating the
existing National Commission for the Scheduled Castes.

The Ninety-Ninth amendment seeks to protect the rights of the non-tribals in the Bodo Territorial Council.

The proposed commission for the Scheduled Tribes would comprise a chairperson and two other members and the
National Commission for the Scheduled Castes shall have chairperson, vice- chairperson and three other members.

Notwithstanding anything in this Constitution, Parliament may, by law, form within the State to Assam an autonomous
State comprising (whether wholly or in part) all or an, of the tribal areas of the Sixth Schedule and create therefore
(Article 244A)

(i) A body, whether elected or partly nominated and partly elected, to function as a Legislature for the autonomous
State, [Article 244A (1) (a)] or

(ii) A Council of Ministers, [Article 244A (1) (b)] or both with such Constitution, powers and functions, in each case, as
may be specified in the law.

Any such law as is referred to in clause (1) may, in particular:

(i) Specify the matters enumerated in the State List or the Concurrent List with respect to which the Legislature of the
autonomous State shall have power to make laws for the whole or any part thereof, whether to the exclusion of the
Legislature of the State of Assam or otherwise [Article 244A(2)(a)];

(ii) Define the matters with respect to which ‘the executive power at the autonomous State shall extend [Article 244A (2)
(b)];

(iii) Provide that any tax levied by the State of Assam shall be assigned to the autonomous State in so far as the proceeds
thereof are attributable to the autonomous State [Article 244A (2) (c)];

(iv) Provide that any reference to a State in any article of this Constitution shall be construed as including reference to
the autonomous State [Article 244A (2) (d)]; and
(v) Make such supplemental, incidental and consequential provisions as may be deemed necessary [Article 244A (2) (e)].

An amendment of any such law as aforesaid in so far as such amendment relates to any of the matters shall have no
effect unless the amendment is passed in each House of Parliament by not less than two-thirds of the members present
and voting [Article 244A(3)].

The modern institutions of the Autonomous District Councils are elected bodies. They are controlled by the new
generation which has benefited from modern means of education. This placed the new elite in confrontation with the
traditional elite who have considered it as an encroachment on their position.

In fact, they have been demanding its abrogation. Also a section of the non-tribals have been seeking the removal of the
Autonomous District Councils. They argue that the VI Schedule was introduced to protect the interests of the tribals
while they would be constituents of Assam.

But with the formation of separate states there was no need for the Autonomous District Councils. Besides, there is no
clear demarcation of the jurisdiction of the ADCs, which result in overlapping of the jurisdiction of the ADCs, state
legislature and the village councils. This causes inconvenience to the people.

Since the British days a system of Inner Line was drawn up under the Bengal Eastern Frontier Regulation, 1873. It
prohibits the travel of outsiders into the area beyond the Inner Line without the government’s permission.

Aimed primarily at protecting the people of the covered area from the exploitation of the plainsmen, this also preserved
the British control there and hindered the integration of the people of the hills and plains. The Inner Line is a subject of
hot controversy in northeast India.

The Constitution (Ninetieth Amendment) Act, 2003 has ensured a fair representation of the non- tribal in the Legislative
Assembly of the Bodo Land Territorial
1.7A Tribal People in India: Scheduled Tribes, Scheduled Areas and Tribal Self-
Rule
Victims of Development

There are two principal colonial causes of tribal disaffection and their exploitation — the failure to recognize community
propriety rights over land of tribal communities in the Indian Forests Act, 1927 that rendered them encroachers on their
own land and the highly unjust and oppressive features of the 19th century Land Acquisition Act. All talk of their welfare
is futile without amending these two laws.

In last few decades, tribal communities have to step forward and raise their voices against injustice being perpetrated on
them; this voice of injustice only became louder since the mid nineties. The so-called economic reforms unleashed by
the Union government have reduced them to the status of “targeted” people. The incompetent governments at the
center never bothered to reach them since 1947 when Indian elites (Nehru dynasty) started ruling India. It speaks for the
caliber of governance of this family (largely Nehru and his daughter Indira) that by late eighties the Indian government
was at the verge of bankruptcy. Thus, in 1991 the Indian government pledged gold with international money lenders and
got money at their terms. Thus, the economic policies began changing in favor of the rich in the name of liberalization,
privatization, and globalization.

Soon the government started the process of handing over natural resources, mineral mines, and water bodies along with
land to corporate houses for “development” of industries and other projects. Incidentally, nearly all resources and other
raw materials needed by the industrial houses lie in the tribal areas of remote hills and forests. The tribals living in these
areas started seeing visitors and gathered that the governments are selling their lands, which meant serious trouble –
loss of livelihood, displacement from ancestral lands, total disruption of their community based cooperative living,
forced into undignified labor for rich outsiders and possible migration into outside society which has only exploited them
since as long as they remembered. The land record bureaucrats never stopped fooling them in favor of the rich and
powerful and deprived them of the only mean of survival. Moneylenders always appeared ready to extend help in crisis
only to put them in bigger trouble later on.

Their areas were officially “excluded” by the White rulers until 1947 and have been unofficially “neglected” by the new
rulers since then. The only interest the colonial British had in “excluded” areas was the mineral and other resources. The
same tradition was followed by the Indian rulers. Forest officials were the face of government before 1947; that
continued later too. Whenever they resisted the British, it was to protect their land and livelihood; they are doing the
same now.

Maoists Violence

It is here the Maoist (also called Naxal or left-wing-extremist) movement in India becomes relevant. The helplessness
and naivety of tribal people, their near-total exclusion from Indian mainstream, and their exploitation and harassment
by state bureaucracy provides an ideal ground for them to propagate their ideology of armed-struggle to throw out the
Indian state. The tribal community find some sympathetic voices among the Maoists who have often taken up their
issues against the powerful landlords or helped them take revenge by supporting them. Thus, some tribals join their
cadre to settle scores and others find the ideology attractive. Those who don’t agree don’t speak out for fear of the
barbaric modes of Maoists punishments. (Read Maoist Violence: Defeat the ideology, not People)

By designs of their nature based living styles, they preserve land, forest, and natural resources which are owned by the
community, not individuals. Now, all that they preserved for ages is open to loot by “developed people” who will make
money as long as raw materials last, play havoc with the ecology, destroy forests and finally walk away with the booty;
leaving behind examples of their “civilized” lifestyle. All this would raise GDP of India and some city-dwellers will find
employment for some time. And, what happens to the poor and helpless tribals who lived and preserved everything?

These so called “developmental” activities, which do not confer any direct benefit to the tribals, merely leave them
landless or without means for survival. Monetary benefits do not really count when the lifestyle for generations is
changed irreparably. Displacement from their traditional habitations and community and families shattered, they are left
to toiling as unskilled labor to survive in some unfamiliar hostile societies. It leaves them under acute trauma and
uncertainty.

Tribals: The Biggest Victims of “Development”

“Tribals have paid the highest price of national development because their regions are resource rich”

90 percent of all coal and around 50 percent of the remaining minerals are in their regions. Also the forest, water and
other sources abound in their habitat. The indigenous/ tribal peoples who constituted 8% of the total population of India
at 1991 census make up 55% of the total displaced persons due to development projects up to 1990. According to the
Ministry of Tribal Affairs (MTA) nearly 85 lakh tribals were displaced until 1990 on account of mega developmental
projects like dams, mining, industries and conservation of forests etc. Lakhs of tribals have been displaced since mid
1990 without proper rehabilitation. Yet, no proper study has been conducted in regard to displacement and
rehabilitation of tribals.

“Article 46 of the constitution places an obligation upon States to promote the interests of Scheduled Castes and
Scheduled Tribes and protect them from social injustice and all forms of exploitation. It must be mentioned that
displacement of tribals from their lands amounts to violation of the Fifth Schedule of the Constitution as it deprives
them of control and ownership of natural resources and land essential for their way of life.”

Read a detailed report on Tribal Displacement

What are Scheduled Tribes

Excluded People of Colinial India

In India the tribes have been designated as “Scheduled Tribes” under the Constitution. There is a procedure for including
tribal groups in the Scheduled list. Communities are notified as Scheduled Tribes under Article 342 of the Constitution
based on the characteristics such as – primitive traits, geographically isolated, distinct culture, and shyness of contact
with community at large, and economically backward. When labeled “scheduled tribe” the community becomes entitled
for some constitutional protections and developmental programs designed to end their marginalization and help
assimilate into mainstream society. A similar protection is available to Hindu “low-caste” communities which have
historically faced discrimination and exclusion at the hands of “upper-caste” people. They are labeled “Scheduled
Caste.”

India is among few nations in the world with a sizeable tribal population in different parts of the country. There are 573
different tribal communities spread all over India. As per official data, only 258 tribal communities speaking about 106
different languages are notified as “Scheduled Tribes”. About 80 percent of tribal populations are to be found along the
Central India belt and the rest 20 percent are in the North‐Eastern States, Southern States and Island groups. The
numerically strong Scheduled tribe groups include Santhals, Gonds, Bhil, and Oraon. Smaller tribal groups are to be
found in A&N Islands (Andamanese, Onges) and Kerala‐Tamil Nadu (Paniyans and Kattunaickens). 75 tirbal groups have
been categorized as Particularly Vulnerable Tribal Groups (PVTG) (Earlier known as Primitive Tribal Groups (PTG)) for
special development assistance.

According to 2001 Census, the population of Scheduled Tribes in the country was 8.4 crore, constituting about 8.2
percent of the total population. The sex ratio of the Scheduled Tribe population was 978 females per thousand males;
better than the national average and those of the Scheduled Castes.

Constitutional Protections to the Scheduled Tribes

Tribal people are simple, honest and naïve by any yardstick of modern society. Besides, they have traditionally lived in
close contact with nature, in the hills and forests. In this sense they are different from rest of the mainstream people;
they have historically tried to avoid contact with “outsiders” to preserve their traditional community based living in
which they feel more secure.

Thus, with the dawn of independence and adoption of the Constitution of free India, the British policy of exclusion and
isolation was replaced by the policies of integration and development. The Constitution of India provided several types
of safeguards to the tribal communities. There are the Protective Provisions to protect them from all forms of social
injustice and exploitation, the Developmental Provisions promote education and developmental activities, the
Reservation Provisions ensure their representation in legislative bodies and government jobs, and the Administrative
Provisions under the Fifth and Sixth Schedules provide for special administrative setup to provide autonomy of self
governance according to their customary traditions.

Scheduled Areas

The tribal people live in contiguous areas unlike other communities. So, an area approach was adopted for
administrative and developmental purposes. Under the Constitution “Scheduled Areas” are declared by the President
after consultation with the State Governors. These Areas have been designated to protect the interests of Scheduled
Tribes regarding their land and other social issues and are governed through provisions of either Fifth or Sixth Schedule.
The Scheduled Areas of the North East are covered under the Sixth Schedule provisions; all other Scheduled Areas are
covered by the Fifth Schedule laws. The administrative structure is different in the two Schedules.

It must also be noted that there are other areas (Kerala, Tamilnadu, Karnataka, Goa, Assam, Manipur, Arunachal
Pradesh, Nagaland, Andaman, Nicobar Islands, etc) with sizeable tribal population in the country that are covered
neither by the Fifth nor by the Sixth Schedules. Tribal living in the non-scheduled areas are more vulnerable in terms of
losing their land ownership, control over the forest and natural resources. The process of scheduling was started in the
fifties and resumed in the seventies, but remained incomplete largely due to lack of political will.

State Governors have a special constitutional protective role in all Scheduled Areas. They are empowered to make
regulations prohibiting or restricting transfer of land from tribals to non-tribals and prevent exploitation the tribal
communities. Since these Scheduled Areas are supposed to enjoy autonomy protected by the Constitution, the laws
passed by parliament and the State legislatures do not automatically apply to them. Hence, the Constitution defines
Governors’ powers to adapt laws to these areas.

ADMINISTRATIVE STRUCTURE

Sixth Schedule Areas

The Sixth Schedule provides for administration of certain tribal areas as autonomous entities. The administration of an
autonomous district is to be vested in a District Council and of an autonomous region, in a Regional Council. These
Councils are endowed with legislative, judicial, executive and financial powers. As a result, they work almost like “mini
Parliaments.” They have complete freedom to preserve local bodies and allow them to function according to customary
laws. Most Council consists of up to 30 members including few nominated members. (The newest Bodoland Territorial
Council is an exception; it can have up to 46 members). These constitutionally mandated Councils oversee the traditional
bodies of the local tribes such as the Syiemships and Dorbars of the Khasi hills of Meghalaya.

There is a significant degree of variation in the functions devolved to various Autonomous Councils. For instance, the
Bodoland Territorial Council has more power compared to the NC Hills Autonomous District Council though the latter
has been in existence for decades before the former. This resulted in other areas also demanding further powers and
greater autonomy.

At present, the 6th Scheduled Areas exist only in four North‐Eastern States: 1) Assam, 2) Meghalaya, 3) Mizoram, and 4)
Tripura. These Areas are administered through Autonomous Districts / Regional Councils. Except Meghalaya, other three
states have only certain selected areas covered under the 6th Schedule. The Sixth Schedule areas underwent a drastic
reorganization in 1971-72 which largely resulted in the present status.

Fifth Schedule Areas

A distinguishing feature is the provision for Tribes Advisory Council (TAC) at the state level. Each State with Scheduled
Areas should setup a TAC. It may also be established in any State having Scheduled Tribes population with no Scheduled
Areas. A TAC consists of not more than twenty members, of which roughly three-fourth should be representatives of
Scheduled Tribes in the Legislative Assembly of the State. TAC’s role is to advise the State Government on matters of
welfare and development of the Scheduled Tribes in the State. In reality, however, the state governments either did not
constitute TACs or if constituted, did not function properly. Therefore, in the seventies Indira Gandhi government
introduced what is known as Tribal Sub-Plan (TSP) in the planning process, earmarking a portion of funds for tribal
development, but again the money seldom reached the tribals.
Unlike the Sixth Schedule areas, there are no institutional autonomous bodies in the Fifth Schedule areas. However, the
PESA Act of 1996 has empowered the local village level Panchayats, particularly the Gram Sabhas in the Fifth Schedule
tribal areas to act as local bodies of self-governance. But they lack the protective umbrella of a district level body (like
the District Council of the Sixth Schedule areas); as a result, their decisions are routinely ignored or overruled by the
state officials.

PESA – The Panchayat Act in the Fifth Schedule Areas

We Need a Voice

The Panchayat (Extension to the Scheduled Areas) Act, 1996 (or simply the PESA Act, 1996) made it mandatory for the
Fifth Schedule areas to make legislative provisions in order to give wide-ranging powers to the tribals on matters relating
to decision-making and development of their communities. Politically, it gives radical governance power to the tribal
communities and recognizes their traditional community rights over local natural resources. It not only accepts the
validity of “customary law, social and religious practices, and traditional management practices of community
resources”, but also directs the state governments not to make any law which interfere with these. Accepting a clear-cut
role for the community, it gives wide-ranging powers to Gram Sabhas, at least on paper.

“The spirit of PESA is to strengthen the role of the tribal community by empowering Gram Sabhas so that the tribal
community land is not taken away without the informed consent of the community.”

Probably the most progressive law for tribal people after Independence, the PESA Act empowers the Gram Sabha (the
council of village adults) and the Gram Panchayat to take charge of village administration. It empowered them to protect
community resources, control social sector functionaries, own minor forest produce, manage water bodies, give
recommendations for mining lease, be consulted for land acquisition, enforce prohibition, identify beneficiaries for
poverty alleviation and other government programs and have a decisive say in all development projects in the villages.

STATUS OF GOVERNANCE IN SCHEDULED AREAS

Sixth Schedule Areas

Many changes have taken place since 1952 and the roles and functioning of these Councils have been studies and
evaluated. There is an urgent need to review the performance of the ADCs under the Sixth Schedule in today’s context
because situation is no longer the same as it was fifty years ago. There is a significant change in the demography.

Women and youth representation is another issue. Since the tribal traditions do not normally recognize role of women
in social politics, the autonomous councils as well as local bodies in the Sixth Schedule areas are male dominated;
women representatives are seen as exceptions rather than rule.

Most autonomous councils have neither nurtured the village level bodies nor institutionalized intermediary bodies
covering groups of villages, but instead ended up keeping all power to them only. This concentration of power in the
councils ultimately ends up in few officer bearers. This has negated the democratic voice to the ordinary poor tribals and
the idea of grass-root democracy got distorted as dictatorship of few top council members. This has obviously made
corruption and inefficiency widespread in the councils. Hence, the Sixth Schedule areas failed to move towards
participatory or inclusive democracy.

The developmental role of the autonomous District Councils has remained badly constraints due to financial
dependency on the state governments. Besides, state government departments have been functioning independently
and taking up developmental activities. This has led to significant confusion, corruption and lack of accountability; thus,
hurting the development of these areas.

Thus, the Sixth Schedule setup did protect land and local traditions of the tribes but could not institutionalize grass-root
or participatory democracy and coupled with financial dependency and corruption the developmental activities have
been badly hampered. Therefore, now there are talks of adopting the PRI system in some modified form in certain
autonomous regions.

Fifth Schedule Areas

Lack of political will power to properly implement PESA provisions by almost all state governments has rendered it to
the status of a paper-tiger. An inherent hurdle in the effective implementation of the PESA Act is the way it is handled at
the Central level. Its implementation is vested in two different ministries of the Union Government – the Ministry of
Panchayati Raj and the Ministry of Tribal Affairs – which virtually function in isolation.

Perhaps the biggest hurdle comes from the forest department officials who have historically derived power from the
Indian Forest Act of 1927, which puts them in the twin roles of police and landlords. Thus, they are at pains to see the
ownership of minor forest produce go into the hands of “encroachers”, as they have always seen the tribal community
living “unauthorized” on the forest lands “owned” by the State.

Besides the PESA Act, forest czars are also pained by the Forest Rights Act of 2006 that expects them to hand back forest
lands to the “encroaching tribal community” that were taken from them even in the distant past. It clearly is an assault
on their traditional “landlord ship.”

PESA provisions have failed to provide any sense of security and relief to the tribal community living on the lands that
abound in minerals and other precious raw materials eyed by the corporate sector. The provisions of the outdated
colonial Land Acquisition Act of 1894 are invoked to take away tribals’ individual and community lands by state officials
only to be handed over to private companies for mega projects ruining completely the traditional living style and culture
of the tribal communities.

A former Chief Minister explained the mindful neglect of PESA: “Its implementation would put an end to mining
projects.” Therefore, tribal communities will have to bear the brunt of this blatant mining/industrialization process
because its immense profitability skews the political and administrative agenda in favor of industry, and away from
protective laws like PESA. Thus there is great financial incentive to ignore the PESA law, the Samata judgment, and
ensure that they do not get in the way.

You may also like to read: Non Implementation of the PESA Act
Conclusion

The tribal people have paid and are still paying the biggest price for development in India. They are subsidizing the cost
of development through sacrifice of their land, traditions and cultures so that the urban elites can enjoy comfortable
lifestyle.

If you liked this page, you may also want to read The Sorry State of the National Commission for Scheduled Tribes and a
detailed report on the Status of Governance in the Sixth Schedule Areas.