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There are various angles to the Centre - State Relations and the same is not limited to

interaction and relation between the Central Government and the State Government.

The Centre State relations looks into all spheres where there are possibility of a Centre State nexus.
This include:Legislative Relations
Administrative Relations
Financial Relations
Role of Governors
Emergency Provisions
Economic and Social Planning
Panchayati Raj Institutions
Resource sharing
Inter - State Water sharing

Together with this, there are several Social and Economic developments in the nation,
which add to the smoothening or roughening of the relation between the Centre and the
State
All these ultimately boils down to Ensuring good Governance to the people of India,
promoting welfare, alleviating poverty and illiteracy together with strengthening the
unity and integrity of the nation.

While doing the study on Centre State relations, the most important factor to be relied
upon, inevitably is the Constitution.
Constitutional Framework on Centre- State Relations

PART XI - Art. 245 - 263: - Legislative Relations (A. 245 -255) & Admin Relations
(A. 256- 263)
PART XII - Art. 264 - 298; - Financial Relations
PART XIII - Art. 311 (T & C)
LEGISLATIVE RELATION - Based on Subsidiarity:
i.e. What can be done from Centre is kept with Union.
Those that can be done by State/ local level is with State.
Items of common concern is with both.
7th Schedule lists out the three categories of Powers exercisable by Union and State.
List 1- Union List
List 2 - State List
List 3 - Concurrent- for Both Union and State
Also Residuary powers rests with Centre. - Art. 248

These Lists give autonomous powers to the respective Government.


Centre can make laws for the Entire Territory or part of India
State can make laws within the territory of that State.

Doctrine of Territorial nnexus has led to State laws beyong territory being upheld, if
there is a nexus between the law and the subject which is outside the territory.

There are possible ways of overlap between the jurisdictions. This is settled through
several Judicial Doctrines.

Coming to Concurrent List. This is an area where both Centre and State can make laws.
In case of conflict between Central and State laws- The Central laws will prevail over the
State laws. - Art. 254.
So, even if a State law is passed with assent of President, the Centre can bypass
that law and prevail over the State passed law.
Further more, Centre enjoys a level of supremacy over State List and that is clear
from the following:
1. Power of parliamnet to Legislate in the National interest - Under resolution of Upper
House.
Art. 249
2. Power of Parliament to legislate during operation of Emergency - Art. 250
3. Power to legislate with the consent of States - Art. 252
4. Power to legislate to give effect to International Treaties. Art. 253
5. Power to legislate in case of failure of Constitutional machinery in States - Art. 356
6. Power of Governor to reserve any legilsation for the assent of President. - Art.
200,201
The purpose for such provisions are : to settle issues, to intervene when there is
an external aggression or internal disturbance.
The Division of EXECUTIVE POWER is co extensive with the LEGISLATIVE POWER
The coordination in administrative matters is a great matter of concern and the
Constitution provides for only little safeguardds.
Coordination has been largely promoted through the All India Services.

Art. 257 (1) - says that the Executive Power of the State shall be so exercised not to
impede the exercise of executive power of the Union.
The Centre i empowered to give directions to the States, here.
Non compliance of Provisions can even amount to declaring Emergency in the State as it
amounts to failure of Consttutional machinery.
To settle issue between the Centre and State, there are Quasi judicial
administrative bodies as well.

Art. 263 - Inter State Council (invoked in 1990 after recoomendation of Sarkaria
Commission)
It is supposed to be a body for consultation and cooperation.
to inqire and advice on disoute between States
to investiate and discuss on subject of common interest.
to make recommendation on subject of need.
Review:- Poor performance; rarely meets.
Art. 262 - Inter State Water Dispute Tribunal
Not much in use and effect.

Due to the ineffectiveness and limitation under which these bodies are placed and
created, the Government had created several bodies outside the Constitution for
the purpose of Governance and Centre - State coordination.
They include:- NDC, Planning Commission etc.
Thus, it can be seen that India is a functional democracy performing reasonably
well in economic development, but unable to sustain good governance for the
welfare of people, particularly the weak and marginalised sectors.
The Union, in theory continues to be strong in Constitutional terms. But in
practise is unable to deliver the way it could have done. States have become
stronger in politics as the number of regional parties have grew substantially,
whereas has weakened in Governance. Despite the Constitutionality, the
Panchayaths have remained weak.
THE ISSUES AND CONCERNS IN INTER GOVERNMENTAL RELATIONS
Key Concepts in Constituional Governance
As each Constitution is a reflection of its history and disposition of its people, Indian
Constitution is in itself unique and has within it some basic embedded features which
remains all together with it.

The basic principles which fulfil the criteria of defining the COnstitution is reflected in
the Preamble to the Constition.
The shared exercise of power between Centre and State, in a way known as Federalism
is enshrined as one such basic feature of the Constitution and therfore neither an
amendment nor a repealing law can do away with such a feature.
FEDERALISM- QUASI FEDERAL, OR UNITARY WITH FEDERAL FEATURES?
The Constitution does nt expressly declare that it is a Federation.
1st Article = India is a Union of States- This is a fundamental feature of any federal
state.
Why India was not given a strict federal structure was due to historical reasons.

At the time of independence, the major issue concerned was - 'Unity and Integrity
of India. -- (The number of states were in plenty and definitely the leaders were
concerned of uniting them all into the fabric of one nation). For this reason, a strong
centre was definitely the way out for the framers.
However, India's pluralist and diversified nature also called for a federal arrangement.
Thus, Indian federalism grew organically providing space for unity in diversity.

Most naotable feature of Indian federalism is the vast array of ethnic, cultural, linguistic
diversity - small and large in diffferent parts of the nation. Hence for this reason, a
Union, strong and responsible wsa needed for the coexistence of small and bigger units.
Only this could entail democratic governance. Naturally the finance and fiscal issues
also needed equal focal.
Remember, the major task of leaders were setting up a strong political and economic
system in India.
In India, the Constitution forms the instrument of governance. And the federalism and
its principles are made possible through the institution of democracy.

FEDERALISM IN ITS FUNDAMENTALS IS AN OUTLOOK OF A COMMUNITY IN THE


ACCOMMODATION OF MULTIPLE IDENTITIES. IN PRACTICAL TERMS, DEMOCRACY
MAKES IT POSSIBLE.
Sarkaria Commission stated that Constitution, being an instrument of governance,
the strcture has to be accepted as it is, rather than equating it with federal
structures elsewhere. However, a federal scheme is in allways reflected in our
system wih devolution of powers.
3 MAJOR ISSUES IN FEDERAL STRUCTURE OF INDIA
It must be understood taht in a democractic system with federal structure, the conflicts
between Governments are likely to arise.

3 major situational problems are likely to arise when power is shared between two sets
of Government.

Firstly, the Constitutional law is structured to address the inter governmental issues and
therefore, the imortant aspect to be seen is how it is addressed?
Secondly, there is lot of inequality among and between the regions. How the system has
taken measures to address the issue of backwardness in regions by bringing in equity
principles?
Thridly, The federal structure deal with local and central governments. In such context,
how are the village issues addresed and how are tehy protectced?How is the relatio
between State and Village panchayat balanced?

States are basically non sovereign entitles with curtailed powers


Eg:-

1. Article 3 - State's power to reduce area in a State, alter its boundaries and
change its name.
WB v. UoI (1963) - CoI has adopted a federal strcture witth a strong bias
towards the Centre.
While the States remains autonomous in normal cisumstance, the Centre
remains
strong to prevent fissiparious tendencies of States.

Decision of SC in case of Centre State disputes are fairly and largely in favour of Centre.
Despite this, Federalism has been given the certificate of basic struture of Constitution
by the Court in SR Bommai v. UoI (1994).
The strength of federelaism lies in the governance going to the grassroot level. To that
effect autonoity has been given to the States.

With growing decentralisation of powers and focus oat grass root level, the federal
structure is likely to be strengthened with States becoming powerful entity with a
Strong Union. Only then the statement under Article 1 of the Constituon would gets its
true meaning.
What are the issue of friction between the Centre and State?

Over the last six decades, the issue have been more or less the same.
1. Emergency Provisions
2. Role of Governor
3. Deployment of Armed Forces in States for public order.
4. Inter State water disputes
5. Economic Planning
6. Social Planning.
7. Issue of prolonged communal conflicts
8. Effective Decentralisaton of Powers
9. All India Services

Major political changes in India over the last 3 decades


LPG
Panchayat elections and Governance
Increase in Cross border and terrorism
Tension because if communal forces.

Approach to the questions on protecting sectarian and regional interests together


with serving the national purpose in governance is based on two fundamentals:
1. The Fundamentals of the Constitution is strong

2. The Politics in India bring practical constraints

Only then a practica solution would be posible.

To reduce the conflicts between the State and Centre, what needs to be developed
is the Cooperative federalism. This must be institutionalised and streamlined for
select causes which create political controversies and defied solution through
normal administrative processes.
So COOPERATIVE FEDERALISM IS THE CRUX OF THE DEBATE WHICH S SET TO
ETTLE DOWN THE DIFFERENT IN THE GOVTS AT TWO LEVELS.
LEGISLATIVE RELATIONS BETWEEN THE CENTRE AND STATES
The Context for Indian Federalism
The historical reasons and the need to accomodate the diversity and pluraity of the
nation into one system entity. A strong Centre was alwas an imerative of the CAD, to
keep the country together and to coordinate the policies and action between Union and
Stets in matters relating to national concern.
Thus the model developed was to ensure healthy inter governemmtal dependance and
cooperation with shared responsibilities.
This is reflected at best form in the Legislative Relations between the Union and the
State.
GoI Act 1935 based its model on the Cnadian system which had 3 lists of Legislative
Relations:
1. Union List
2. State List
3. Concurrent List.
Residuary power - GG

Scheme of Distribution of Powers in the Constitution


Artcile 245 and 246 - Basic Principlle is Supremacy of Union over States.
Powers are given Under Seventh Schedule - in 3 Lists

The highlight is the Concurrent List.


This List contains subject in which Union and States can legislate reflect the key areas in
which nation building, social welfare and good governance have to take place through
joint efforts of the Union and States.
Such matters cannot be placed under Exclusive jurisdicton of Centre or State.
Eg: DPSP provisions is the responsibility of all levels of the Givernemnt
because they are meant for progressive implementation.

{DPSP AND CONCURRENT LIST CAN BE RELATED- for study purposes- have same
objects!}
Welfare matters related in DPSPrequires broader approach and cannot be
confined to the limits of Governemnt.
The Concurrent List hs been the bone of contenion for many stTes,.
That consensus reached can be stated that the Centre, whenever, it makes law on
Concurrent subjects needs to do that in a consultative method on a continuing basis.
The Centre needs to cosult priorly before making a legislation on a subject in
Concurremt list.
This may be formalised through the Inter State Council, with an independent Committe
of State Ministers to thrash out contentious issue so that there is consensus or favurisim
among the States, before the Bill is tabled before the Parliament.
Through Constitutional Amendment, the Centre can deplet the Powers of State under
List II and enlist the same into List III. In case of such exercise, the Pariament should
exercise extreem restriant of power in asserting its supremacy. This however requires
conent of half os the States as per Article 368 (2).
GREATER FLEXINILITY TO STATE IN MATTERS UNDER STATE LIST AND
TRANSFERRED SUBJCTTS UNDER CONSURRENT IS THE KEY FOR BETTER C-S
RELATONS.
So any propsal to make changes to such Lists should involve adequate
consultation with the States. Thiscan be made possible using Inter State Council
with an independenct Commite of State Ministers in it.
RS and the No of Representatives from States
The States have demanded Panchayat List and Panchayat members entry into RS- Not
conducsive in the currents sceario, i the context of institutnaling the Panchayath
inIndia..
Panchayat governance is yet to be stabilised through out the country to be able to tale
legislative functions in matters of local interest.
Demand or equal representation of all States envisaged. Based on US model.
Because - RS do not represent the federal model eactly.

RS has to be an instrument for effective expression at the Parlimanetary level of


view of the states, large and small.
What needs to be done is that the role of RS must be strenrthened for effective
representation of view points of State. Hence, procedural changes and not
compositional changes is eesential here.
State Bills Reserved for President's Consideration

Article 200 envisages four courses open to Governor for assent of Bill, one of
which invlves sending to president.
Governor is supposed to act as soons as possible - His act is held as Non justifibale
act.
Power of Pres is either to ASSENT or WITHOLD.
He need not act asap. Here Prez may kill the Bill by not taking any decision over it.

Ca lead to Centre State Friction


Art. 201 gives time limit of 6 momths for legilature to take a decision after Pres returns
a Bill , to pass it with or without amendment.
But no time limit for Pres = chance for abuse of discretionary power.
Complai ts raised on unecesary delay.
Allwong the democratic will of the State Legislature to be thwarted by the Executive
fiat is questioable in the context of basic featires of the Constitution.
Pres must exercise his power to consent or withhold it within reasoable time and the
same must be communiccated.

As a matter of convention, if Pres is unable to take a decision over it, he may also refer
the same to the Supreme Court under Art 143 for advise. This will prevent from nature
of bias and also will help keep the dignity of the House.
Treaty Making power and Legislative Relations
Impact of Union executing international treaties
A new dimension - Vishaka v. State of Rajasthan - 1997 SC
Held; - Citizens can ask relief from State if State as ratified International
treaties and it is not in compliance with Constitution or Indian law.

State complaint : - State power to legislate is eing eroded by Union by entering into
treaties.
Suggestion :- Ought to make effective consultation with the States.

With increasing globalisation, there is likelihood of conflict between State and Centre
issues.
Need to follow practise adopted in other federal nations.
Article 73 is referred. This r/w 246 (1) gives the Union Executive all the powers to
negotiate, enter into, ratify treaties.

Art 253 gives Power to Union stating that Notwithstanding anything in the Constitution,
Parliament has power to enact legislations to give effect to international traties.

Tretay making power stems from extrenal sovereinity. Preamble states India is
sovereign.
But since India follows FEDEREAL SYSSTEM, Court can impose restrictions.
For eg: treaty cannot effect basic structure doctrine.

MaganBhai Ishwar Bhai patel v. UoI


Can UoI enter into WTO treaties without consultation with States - P.B. Samant v. Union
of India (94 Bom)
He;ld that power under Art 73 was expansive enough.
Whether the Government should enter into a treaty is a Policy decision and the COurt
cannot intervene in such circumstances.

UoI v. Azadi Bachao Andolan- No provision stating legislation is a condition for entry
into tretay.
Parliament is vested with power to make laws to give effect to treaties, but no law has
been made so far. So Parliamentary approval is not a norm. Moreover, the States can
always consult with the Cntre through the Inter State Council on all issues including the
treaties.

INTERSTATE COUNCIL
ISC was established in 1992.
It had a broad charter of duty:
"...investigating and discussing subjects in which some or all of the States or the Union
and one or more of the States, have a common interest ...making recommendations upon
any subject and, in particular, recommendations for the better coordination of policy
and action with respect to the subject."
There seems to be no other body for consultation wrt treaty making.

Article 51 (c) relevant - It provides for application of international law for


interpretation and better enforcement of domestic law.

In absence of domestic law in a context, Courts are free to apply international law.
If there is a conflict between Muc and Int law, which will stand?
Municipal law wil stand the test of time.
The problem with International Treaties lies in the fact that States are not adequatey
consulted in Treaty Making?
The Parliamentay approval for treaty making had come often in debates before the
House.
Relevant provions are : - Art. 73 and 253, Entries 6,13, and 14 in the Union List

Art. 73 = Executive Power of the Union shall extend to the matters wrt which the
Parliament has powers to make laws;
and to the exercise of such rights, authority and jurisdiction as are exercisable by the
GoI by virtue of any treaty or agreement.
Why Parliament Approavl is good and Bad for International treaties?
Good - it brings in effective discussions
Bad- In the larger common interest, Parliament may not be right forum to discuss
the traties. Not practicable.
Eve otherwise, Parliament can always question the same because executive is
answerable to Pariament.
The Executive of Union cannot act without the authority of law and it has no
power independent of law made by parliament.
The poer of ordinance given during absence of Parliament substantiates this idea.
Moreover tis is democracy and in demcracy, there shall be rule of law. UoI does not get
unbrdled power.
This is further srenghetned by Article 73 which says that Executive power extends to
those areas where Parliament ha spower to make law; and to the exerise of authproty
by way of treaty agreements.

Union has power wider than USC when it comes to foreign treaties because in US treaty
making needs ratification by Congress.

The Commission recommends the Union to make a law under Entry 14 of List 1 dealing
with the Treaty Making Power of the Union.
While making such a law, the following must be taken into consideration:

1. There can be no uniform way for execrise of power because of the fact that treaties,
conventions or agreements may relate to matters which may or may not require State
intervention. Moreover, treaty making is time consuming, with an element of
negotiating power and hence the same cannot be tabled every time before the
Parliament. But whatever is being entered into cannot be by compromising individual
rights.
2. In case of defense, and foreign relations, wehre State or indiviudla rights are not
directy invloved State reference may not be necessary.

3. Where cases involve individual rights, and thoe which affect rights and oblgations
of citizens, gretaer invlovement of Sttes are encouraged.

4. If treaties place financial obligation on the States, then in such cases the State must
be given clear details of the price involved and measure s to augment the same.
5. Moreover the Finance Commission shoudl deltaail and invlve in its terms of
refernce the details of it.
CONCLUSIONS AND RECOMMENDATIONS
1. Consultation with States while Legislating on matters in the Concurrent List
Institutionalise ISC with independent Committee of Minsiters to discuss on the Bill
so that support can be garnered in discussion of Bill in parliamnet at a later stage.
2. transfer of Entries in Lists, from List II to List III/

Union should be extremely restrained in asserting parliamentary supremacy in


matters assigned to the States.
Greater flexibility to States in such cases is the key.
Union should occupy only that much of subjects in the concurrent list which is
absolutely necesssary to acheive uniformity of policy in national interest.
3. Management of Matters in Concurrent List
Needs to promote consulatative practise on continuing basis.
Auditing Role for ISC to be given.

4. State Bills reserved for the President


President should exercise the consent or witholding consent withing reasonable time
and the same needs to be communicated to the Staates. This time may be 6 months.
5. Treaty Making power
Union should make a law under Entry 14 of List 1 to streamline proceudre involved.
1. Defense matters issues may be kepy outside the purview of States.
2. those affecting individual rights may be effectively brought to the States
attebtion and negotiated with greater involvement of States and repr in Prliament.
3. Where the treaties place financial obligation on states, the Cntre Should
underwrite the additional liability of concerned States according to an agreed formula.
3. Finance Commission may adeqautelya dd up the same in Reports.

ROLE OF GOVERNORS AND CENTRE STATE RELATIONS


{THE GOVERNOR HAS NO FUNCTIONS, BUT DUTIES TO PERFORM.}

Primary duties:
1. To Retain Ministry in office. Goes under the Doctrine of Pleasure.

2. To advice, warn and suggest to he Ministry an alternative and ask for a


reconsideration.
The importance of governor has increased over time with coalition governemnts and
multi party system.
Initially for two decades, it was Congress which ruled the States and Centre. Later,
power balance moved and other parties came i. In such cases, political motives were
used in the form of Governor.
Thus, his role and functions needs to be ascertained.

Governor is a nominated person on whom discretionary powers, therfore, are notlaid


down.
One explicit provision relates to Assam Tribbal areas.
The Governor as agent of Centre could act independently of his Council of Ministres.,
except in transitional period when he can at independently of his CoM.
Prez/ Governor cannot be sued because they do not exercise power individuallly.

Generally lack of bona fide vitiates executive action, bt Governor is not responsible.
Governor's bonafide cant be quetioned in cases where he exxercises discretion ie
appointment of CM and dismissal of CM.
Role of Governor under the Constitution
Art. 153- A Governor for each State.
A Governor can act as Governor for one or more States.
Art. 154-Executive Power of State vest with Governor

Art. 155 - Appointed by Prez by warrant under his hand and seal.

Art. 156 - Governor's Office is at pleasure of Prez. Term is for 5 years.

Art. 158 - Qualifications - 35 and Citizen, not to be member of any House- MP/MLA.
Art. 159 - Oath
Art. 161 - Pardoning power

Art. 164 - CM and CoM appointed by Governor. Period - during Pleasure of Governor.
Art. 163 (1) - Execises all his Executive and Legislative functions with the aid and
advice of the CoM.
Art. 167 - Duty on CM to communicate to Governor :all decisions taken by CoM.
proposal of legislations
such other info relating to administration of the affairs of the State.

Governor can require to submit for consideration 'OF CoM' on any matter
decision has been taken by a Minsiter, but not considered by CoM.
Nature and Scope of Duties of CM vis-a-vis Governor
Governor's role is multi faceted.

a. Governor has a right to be consulted, to warn and encourage and his role is as a
guide to the Council of Ministers.

b. Governor also has a link to the Centre. He thus acts as a sentinel of the Constitution.

Therefore to go ahead with his multi faceted role, he must be given necessary
information relating to administrative affairs of the State and legislative proposals.

Governor's powers are not dictatorial but persuasive, in relation to admin affairs. He
may call for details or even ask for reconsideration of decision taken by a Minister but
held not in consultation with the CoM..
Governor vis-avis President
{Privileges are the same, Powers are Not}.

Both cannot be sued for executive actions.


When Art 154, 163 and 361 are read together it would show that the immutability
against answerability to any Court reagrding functions execrised by Governor is Qua
Governor and those functions in which he acts on advice of CoM or in his discretion.
Governor's discretionary powers.
Art 163 (1) requires Governor to act on the aid and advice of the CoM. An exception to
this law is on matters in the Constitution whereby he is required to use his discretion.
The Governor can exercise under discretion only if there is a compelling need to
do so, as laid under the Constitution.
Can discretionary power be exercised out side Constitution?
This power is to be execrised 'by or under the Constition'.
This means his powers must arise from Constitution or by necessary
implication. Therefore the discretionary power is not unlimited, but limited by scope of
Constitution.
Art. 163 (1) and (2) speaks of such situation of exercise of discretion.

Power of Governor under the discretionary realm needs to be construed strictly


as in the Parliamentary democracy, role of nominated members must be lmited.
So, generally Governor gets no discretionary power. In compelling situations, as
per Constituion under 163 (1) and (2) he is required to act using his discretionary
power. While using this power, he shall act with reason, in good faith and
tempered by caution and not arbitrarily.

Role of Governor in Management of Centre - State Relations


Prez APJ :- Office of the Governor has been bestowed with the independence to rise above
day to day politics and override compulsions either emanating from the Centre or State.
PM Manmohan :- GOvernors are expected to bring national perspectives to state level
actions and activities as they are representatives of Centre.
One Major Role: - Making report where he finds that the Govt of the State cannot be
carried in accordance with the provisions of the Constitution.
Governor is not amenable to Union nor accountable to thm.

The safeguards regarding office of the Governor cannot be placed into set of riules and
procedures and this is because of his Dual role in Sate and Centre and also because of
the precise role of his power.
APPOINTMENT AND REMOVAL OF GOVERNORS

Process of Electio was not favured for the apoitment of Governor because in discharge
of his functions, he is required to act in accorance with the ministreaila dvice.
Governor's appointment if through Prez, for a term of 5 years but holding office
during Pleasure of president.

~ Sarkaria Commission recommended certain criteria for appointmet of Governorship


Eminent person in some walk of life
From outside the State
Detached figure not too intimately connected with local politics of the State
Not taken too great part in politics generally and particularly in the recent past.
~ These recommendations were reiterated in Rameshwar prasad Case - 2006
Since these recommendations re subject to interpreatation, the position has become
politicised one.

~ Recoomends that the the Pleasure of President needs to be removed with some
appropriate Clause which gives an opportunity to defend his position and the decision is
taken in a fair and dignified manner befitting the Constitutional office. His removal
needs to be exercised only if there are compelling reasons to do so.
~ Commission recommends strict following of these rules.
~ Calls for fixed tenure of Governor, not subject to the sweet will of The Unin.
Pleasure Doctrjine needs to be taken off by Strict procedure for removal and reprimand.
~ NCRWC recommended that Appointment Committee needs to be in place.
~ Rameshwar prasad Case - There is eed to formulate a National Policy with common
minimum parameters forappointment, applicable an acceptable to all political parties.

If these are accepted, the unfortunate situations of allegations in appointment and


removal could have been avoided.
THERE IS NO IMPEACHMENT OR REMOVAL PROCEUDRRE FOR GOVERNOR.

Tenure must not be kept at pleasure, but needs to have a set procudeure whichcan be
exercised only in extree cases. Governors belong to her States, and therefore, he needs
time to adjust with local situations. Keeping him at Pleasure, can lead to creating
insecurity in the mond of the Governor and impair his capacity to withstand pressures,
resist extraneous influences and act impartially in the discarge of his discretionary
functions.
The President's discreion here in removal is not justiciable and therfore gives no
reasons.
Power of Governor in the Context of harmonious Centre State relations
Governor's Powers
1. on aid and advice of CoM - General principle
2. Personal discretion. - Exceptional principle.
The Governor is by and under

the Constitution required to act in his discretion in

several matters. Articles where the expression "acts in his

discretion" is used in relation to the powers and functions

of the Governor are those which speak of special responsibilities of the Governor
"In making a report under Article 356 the Governor will be justified in exercising his
discretion even against the aid and advice of his Council of Ministers. The reason is that
the failure of the Constitutional machinery may be because of the conduct of the Council
of Ministers. This discretionary power is given to the Governor to enable him to report
to the President who, however, must act on the advice of his Council of Ministers in all
matters. In this context Article 163(2) is explicable that the decision of the Governor in
his discretion shall be final and the validity shall not be called in question. The action
taken by the President on such a report is a different matter. The President acts on the
advice of his Council of Ministers. In all other matters where the Governor acts in his
discretion he will act in harmony with his Council of Ministers. The Constitution does
not aim at providing a parallel administration within the State by allowing the Governor
to go against the advice of the Council of Ministers.
Article 200 indicates another instance where the Governor may act irrespective of any
advice from the Council of Ministers In such matters where the Governor is to exercise
his discretion has must discharge his duties to the best of his judgment. The Governor is
required to pursue such courses which are not detrimental to the State. For the
foregoing reasons we hold that the President or the Governor acts on the aid and advice
of the Council of Ministers with the Prime Minister at the head in the case of the Union

and the Chief Minister at the head in the case of State in all matters which vests in the
executive whether those functions are executive or legislative in character.
Shamsher Singh Case - Even in case of words such as "as he thinks fit" or "in
execrise of his discretion"- Goevrnor must aid on the aid and advice of CoM.

His discretionary power is i anyway limited and thus cannot be arbirttraty,but needs to
be dictated by reason.
The folowing are his discretionnary powers:

1. To give assent or withhold or refer a Bill for Presidential assent under Article 200;
2. The appointment of the Chief Minister under Article 164;
3. Dismissal of a Government which has lost confidence but refuses to quit, since the
Chief Minister holds office during the pleasure of the Governor;
4. Dissolution of the House under Article 174;
5. Governor's report under Article 356;
6. Governor's responsibility for certain regions under Article 371-A, 371-C, 371-E, 371H etc.
1. To give assent or withhold or refer a Bill for Presidential assent under Article
200; (can act irrespective of CoM)
In two conditions:
a. If it derogates the High Court
b. In other cases

Time frame is asap - but no time limit placed. Moreover, if it is sent for Prez
consideration, no time limit prescribed for Prez toconsider the same.
2. Appointment of CM
Problem arises when there seems no majority
Sarkaraia recommendations
Party orcombination of party with widest majority needs to be called upon to
form Govt.

Governor task is to see that Govt is formed and not to form Govt which will pursue
policies whiich he approves.
Governor's subjective judgment plays a major role here. Governor should ensure that
CM so formed by such allince or coalition must prove his majority on the floor of his
house in 30 days.
Governor's discretion in appointing the CM is not a complete discretion.
CErtain recommendations may be considered to follow as pat of COnventions

~1. party or group of parties which commands widest support in the LA should be
called upon to form the Government.
~2. If there is a pre poll alliance or coalition, it should be treated as one political party
and if such coalition obtains majority, the leader of such coaltion shall be called by
Governor to form Government

~3. In case no party or pre poll coalition has clear majority, the Governor should selsect
CM based on the criteria.
1. Alliance of parties formed before Election
2. Largest single party with support of others., say independents.
3. Post electoral coalition, with all forming the Govt
4. Post elctroal alliance, with some alliance forming Government and others
supporting from outside.
3. Dismissal of the CM
The power t dismiss solely rests with te Governor. He is i nocase fetterd by rstrictions
Assembly can only express want of confidence in the Ministry; and can go no further..
The power to dismiss rests entirely with the Governor.
Losing confidence can, howver, be taken as one criteria to dismiss the Givernment.
If Govt looses its majority, it should be given a chnce to prove majority in the House.
The HGovernor should not dismiss the House unless Legislative Asssemby has
expressed its want of confidece. the time limit to prove that should be fixed by the
Governor.
4. Summon, prorogue and Dissolution of House.
When the House enjoys majority, te Governor is bound by CoM. If such advice would
lead to infrongement of Constitution, or where CoM ceased to enjoy confidence, then
discretionatry power comes in place.

If CM advised proragation when the No Confidence motion is oending, then he shall not
act right away.
He the demand for NCM is legitimate, prorogation vcan be postponed and NCM be held
first.
Dissloution is based on decision of CM who has majority.

If CM doesnt have majority and advises, then the Governor can call for other options to
form Govt and then if not possible then the same can be dissolved.

Reccommendation
Goveror should advise CM to summon House for confidence motion. If the CM does not,
then the Governor can can summon himse;f.

5,. Judicail power


1. disqualification of MLA- decision of governor is final.
2. Appointment of men=ber so of sub ord judicary and frame rules for recruitment, in
colutation with HC.
6. Power of Pardon

This power is concuretw ith presidential power to ggrant pardon under Article
72. Acts under aid and advice of CoM.
This is subject to judicail review.

- expected to follow fair proceudre,

7. Power to make rules


This includes the power to make rules regarding:a. the authentication of orders and other instruments;
b. conditions of service of the members of the State Public Service Commissionas well as
the Civil Servants;
c. convenient transaction of Government business;
d. procedure in respect of communications between the Houses of the State Legislature;
e. recruitment of officers to the High Court and recruitment of secretarial staff of the
Legislature.
8. Promulgate Ordinances
Repeated promulgation of same ordinance can be held as unconstitutional as time
limit has been prescribed by law as 7 and hald months. (Krishna Kant v, State of
Bihar)

If Ordinance is not replaced by an Act, it willnot make the law void ab inito. Ordiannce
shall only become inopertaive, so completed transactions do nt get revived
Governor and North East States
Assam, Meghalaya, Tripura and Mizoram governors given lnspecial poewrs.
Powers here are entrusted to Regional Council and Distruct Councils.
Wide powers.
Goernor can frame rules wrt managemet of District Und and regional Fund.
Final decision = governor = final.
Not bound by advice of CoM

Reports from Governors to prez


Every fortnight report needs to be sent to the Prez by the Governor on important
developments taken place in adminsitration of the State.
This report is sent to CM, for him to correct on any wrong policies pursued.
JUDICIAL REVIEW OF GOVERNORS ORDERS
1. PARDON POWER
2. UNDER ARTICLE 356

Governor and Article 356


Proclamation under Article 356 is not immune from judicial review.

Art 74 (2) is not a bar against the scrutiny of the material on the basis of which Prez
issues Proclamation of Emergency.
It may bar jud review of advice given, but does not bar judicial review of the materials
sought based on which advice was tendered.
EMERGENCY AND CENTRE - STATE RELATIONS
Obligation of Centre to protect States from external aggression and internal
disturbance
Refer to SR Bommai Case for recommendations
ADMINISTRATIVE RELATIONS AND CENTRE - STATE RELATIONS
Art. 256-263
Normally the executive powers are co extensive wit the legislative powers, but then,
Union will have authority and jurisdiction to exercise the same in relation to any treaty
or agreement.
With respect to matters in Concurrent List, State may have executive powers only so
long as Parliament by law has not expressly provided otherwie.

The administrative relations between Centre and the State is governed by a set of
principles agreed upon in the Constituent Assembly.
1. Duty of the Govt of the unit is to exercise its executive powers in such a way as to
secure full implementation of federal laws in that unit.

Here Union may give directions to States for full implementation of federal laws.

2. Prevent any clash of authority between Centre and State by ensuring that the Units
would so exercise their executive auth even in the sphere reserved for them as not to
come in conflict with the exercise of Executive auth at the Centre.

3. If duties wer cast on the State, in relation to Central subject, the Centre shall pay the
State as agreed or fixed.

4. Prez is authorised to establish Inter State Council with power to inquire, investoigate
and recommend suggestions for better coordination.
All of these 4 points derive their origin from GoI Act 1935.

EXECUTIVE POWER - DEFINITION, LIMITATIONS AND SCOPE (Art. 73 and 162)


Primary component of Executive Power is the AUthority to Execute laws made by the
Legislature.
However, the Power to act is not always entirely dependant on the LEGISLATIVE
SANCTION.
Centre can go by the Treaty making Power as well.
Executive Power defies a precise definition.

Ram Jawaya v. State of Punjab.


It is that part of functions of Govt that remains after Legislative and Judicial
functions are aken away.
Some examples where it defies the extent prescribed by Legislative powers are:
Art 282 - Union or State may make grant out of it revenue for public
purpose, irrespective of the fact that public purpose relates to items within its
legislative competence.
CSS comes out of such provisions.

This tends to dilute the Seventh Schedule List.

Other Articles by which CEntre interferes with State are:


Art. 256, 257.

By reason of this there has been several Centre- State issues which affects the
Governance strcture even at grass root levels.

How Centre exercises its powers in States via matters in Concurrent List?
1. It may leave admin entirely with States
2. It may reserve total responsibility of enforcement with itself
3. It may assumes exe power in some respects of legislation and settling other issues
of administration via consultation and negotiation.
This has affected the State in terms of accountability and autonomy.

Power of Union to give Direction to States - Art 256, 257


Article 256 and 257 are highly controversial to the extent that State have
considered it as violation of federalism principles.
ART. 256
In practise, there has been no such instances, where State wutonomy was prejudiced by
way of exercise of thispower. Moreover Articl 256 pre requisites the need for a LAW OF
PARLIAMENT TO EXERCISE THE POWERS.
HOWEVER IT MUST BE NOTED THAT A POWER TO ENACT WOULD BE COMPLETELY
MEANINGLESS FOR THE UNION WITHOUT THE POWER TO ENFORCE THEM IN THE
STATE.

Hence, the Art. 257 is not violative of federal principples , in that it infringes autonomy
of States. The execrice of power is based on lawful executive powers.
Even if CEntre transgresses inti the power of States, there is always Judicial Review as a
hope.
Thus they do not destroy federalist prinicples.
These provisions also imply that The States shall not interfere with the Executive
owers exclusively earmarked for the Union.

Hence, these Article may be construed only as SAFETY VALVE. ONE WHICH MAY NEVER
COME ONTO PLAY. YET NEEDS TO BE RETAAINED.
Article 256 reads as follows:
"The executive power of every State shall be so exercised as to ensure compliance with the
laws made by Parliament and any existing laws which apply in that State, and the
executive power of the Union shall extend to the giving of such directions to a State as
may appear to the Government of India to be necessary for that purpose."

Article 257(1) states as follows:


"The executive power of every State shall be so exercised as not to impede or prejudice the
exercise of the executive power of the Union, and the executive power of the Union shall
extend to the giving of such directions to a State as may appear to the Government
of India to be necessary for that purpose."
Art. 256 come into play when there is a valid legislation when there exists a
legislation
Art 257 come into play incontext of an executive action o part of CEntral
Governemnt.
Even this exe action can be in domain over which Centre is empowered to act.
EXECUTIVE ACTION HERE IS NOT THE EXECUTIVE ACTION IN THE SEPARATION
OF POEWRS CONTEXT.

Therefore there is no much overlapping of the powers between Centre and State.
INTER STATE COOPERATION - MODALITIES
Institutional Mechanisms
ISC, NIC, NDC, PC, FC, RBI et
Concerns
Inter State Council - Estb in 188, First met in 1998 Poor body. Most often Centre do not take views of State.
Failed machinery
Works under Constitution
Decisions are not binding upon the Centre

National development Council


For better coordination on all financial and developmental issues.
Frequent meetings to be held with the States.
Planning Commission
Members are all nominated by Union
Lack of representation of State.

Neither bodies have given effectual represenattion to States interms of composition and
Terms of Reference. not the decision provided fair dealing with the States.
They have functioned as Union bodies with a functional bias towards the CEntre.

Most of them are created thru Union Executive Order. - even NITI Ayog and hence
perceive themselves as Union emplotees.

The problem with ISC lies in the non binding nature of the decision to Union. The ISC
has incorporated Sarkaraia Commisision recommendation in the decisions, but Centre
has not implemented them in its letter and spirits.
W.r.t. PC had all its members from Union, with no rep from Sattes. There needs to be
adequate rep from States - BOTH AS MEMBERS AND EXPERTS.
THE PC MUST NOT ACT AS REP OF UNION, BUT MUST ACT IN THE INTEREST OF
THE STATES.
Inter State Council and Binding Decisons- Is it POssible?
Making it bnding do not fit our Constitutional Scheme.
Powers to the bodies are theirs to exercise as they deem fit.
Better consultative mechansims and negotiations can go a good way in dealing with
issues. However, the ultimate decision has to remain that of government in questionWhether State or Union.

To say, Federalism is a living faith of diversities and it needs to be supported by


institutional mechanism to facilitate coopertaion and coordination among the
Units, and between the Units and Union. Cooperative federalism is easily
endorsed but difficilu to practise without proper consulative echanism.

CONSTITUTION HAS PROVIDED FOR LIMITD BODIES AND THOSE ARE A FAILED
MECHANISM. ONLY WAY IS TO STRENTHEN AND MAINSTREAM THE ISC AND
MAKE IT A VIBRANT FORUM.
The Council must be used as a mechanism for consensus building and voluntary
settlement of disputes if the body is staffed by technical and management experts and
given the autonomy reqired for functiionig as a Constitutional body independenyt of
Union and States.
Also Give Secteariart Staff endowed with central and State Staff. on regulatory bass.
GIVE ADJUDICATORY POWER TO ISC
aLSO the Council make envisage to inquire and advise on disputes between States
towrads settlement of contested claims.
Council can be a very effective body if its issues are settled.
It can be used for consensus building and voluntary settlement of disputes if the body is
satffed by tech and management experts and given the autonomy in functioiing as a
Constitutional body independent of CEntre and States.
It must be bestowed with resources adn authority to acrry out its functions.

Would conferring Constitutional Status affect the Soverignity of the Union?


No- The purpose is to maeet regularly.
Endow with sufficeint resource and authority.
Comand a certian space in the domain of civil societ and deliberations.
INTER STATE RIVERS AND DISPUTE MECHANISM
Dealt LATER
ALL INDIA SERVICES AND CENTRE STATE RELATIONS
States generally have some concenrs, but are not per se oppsed to the having of ALl
India Services, with a broad national outlook. This is ecase they have a broader
understanding with respect to many issues of country wide concern adn releance.

Commission however is of the opinion that the rd tier of govrnance maybe in duire need
of personnel from All India Services.

Commission suggest the need for All India Judicail Services


Reasons:
1. Unified Judicairy i India - Therefore constitution of AIJS is quite a natural
phenomenon.
2. Judical responsibilities of Judge in one Sate will be the same in another State. - there
would b cases and law whcih are particular to one State, but nevertheless the cses in civl
and criminal litigation more or less remian the same.
3. Can attract the best talent from the nation to the Judicary at the young age.
can ensure access to justice by bringing the best personnels from around the
nation.
ZONAL COUNCILS AND EMPOWERED COMMITTEE OF MINISTERS
While legislative powers are marked and fiscal situation is reviewd by the FC, The fear
with satstes is respect to the adminsitrative relations and hence calls for a forum for
coordiation.
FIVE ZONAL COUNCILS CREATED UNDER SRAct 1956.
To curb the rising regional and sectarian felings.
Promote cooperation in region

May create Empoewred Group of Ministres such as of Finance Ministers fromSattes and
give recommendation to ISC/ PC/NIC/NDCImplementation of Direcive Principles can be
a standing principle for the agenda and the recommendation can be sent to Union.This
can incidentally match with NDG. Other federatons like US candaa have such forums . It
may also work under ISC.
SMALLER STATES AND BALANCE OF POWER
States in India are represented in the Council of States.
Allocation of seats in RS shall be elected by elected members of the Legislative
Assembly of the State in accordance with the system of prportion representation
by means of single transferable vote.
9states = 1 seat each.
10 states = tota 160 seats
Smaller states have problem with unequal representation given to them because
of their small size.
Effect

Being smaller and having 1 seat, their representation do not actually make a
difference in a House which demands either simple majority or even 2/3rd of majority.
State gets its voice basically from 2 provisions
1. State List granting autonomy in its realm.
2. Representation in RS
Lower House represents the population and
Upper House represents the States.

Why India did not adopt equal repr model of USA


States were not independent entities having ore existing rights or powers anterior to
or apart from the Constitution.
Constituent Units in India differed vastly in area and population.
Art. 249 and 312 prove that RS do not exclusively erpresent the fed principle.
Its primary role is more or less that of Lok Sabha.
However, under 249 and 312, it exercises a fed character role.
......................................................................................................to be
dealt.................................................................................

DECENTRALIZED GOVERNANCE AND INTER GOVERNMENTAL RELATIONS


The 73rd and 74th Constitutional Amendments gave Constitutional status to
Panchayatas and Municpalities as Rural and Urban bodies of governance. This is
considered as a major breakthrough in democratic governance.
..................................................................................................................................................................
.....................
CENTRE STATE FINANCIAL RELATIONS AND PLANNING
Constitutional Provisions
Taxing poer has been clearly demarkated in the Cnstitution- Art 246 - 3 lists
NO TAXES ARE LISTED IN THE CONCURRENT LIST
Union = 13 Taxes -- Income, Customs, Excise, Corporartion, Estate , Railway, sea,
air terminal tax, stock and futures, newspaper - Inter State -- Most, with
exceptions.

States = 19 Taxes -- land revenue, agri Income , building tax, minerals liquor,
goods other than newspaper, road, vehicles, professions, luxury, entertainment,
entry of goods in local area, advertsements other than radio, tv or newspaper.

Union Taxes in detail- Entry 82 - 92C


1. Income Tax except Agri income.
2. Customs inc export duties.
3. Excise duty on goods manufactured or produced in India, inc excise on tobacco
Inclusion:- Tobacco,
Medicinal and toilet prep containing alcohol or opium, ND, hemp etc.
Exception :- Alcohol for human consumption
Opium, hemp and ND;
4. Corporation Tax
5. Tax on Capital Value of assets of individual and companies; and Tax on capital of
companies.
Exclusion: Agri land.
6. Estate duty for property
Exclusion: Agri land
7. Succession of Property - Duty
Exclusion:- Agri land
8. Terminal Taxes on Goods or passengers- RAIL, SEA, AIR; Tax on Rail fare and freights.
9. Stamp Duty in Stock exchange and Futures transactions
10. Rates of Stamp duty wrt Cheques, Pro notes, Bills of lading, LoC, Insurance, Share
transfer, debentures, receipts, proxies etc.
11. Taxes on sale and purchase of Newspapers annd on advertisements in newspaper.
12. Taxes on sale/ purchase of goods in course of Inter state trade or commerce.
Exclusion :- Newspaper
13. Service Tax
State Tax - Detailed - Lists 46 - 63
1. Tax on Agri Income
2. Duty on sucession to agri land.
3. Escise duty in alcohol for human consumption, opium, hemp and NDs.
4. tax on entry/sale of goods in local area
5. Consumption or sale of electricity
6. Tax on Sale or purchase of goods
Exclusion: - Newspaper
7. Tax on advt
Exclusion: Newspaper, radio, TV
8. Tax on goods and passengers carried by road, or inland waterways.
9. Vehicle Tax
10. Animal/ Boats
11. Tolls
12. Profession, Trade, Calling, Employments

13. Capitation taxes


14. Luxury tax, entertainment, amusement, betting, gambling.
15. Rate of stamp duty
Exclusion: Union List matters
Expenditure Responsibilities
Responsbilities fall under Union List and COncurrent List fro the Centre
and under State List and Concurrent List for the State
There exists a great asymmetry in the taxationa nd expenditure. Naturally, the burden
on State is more than that of Centre and income is comparitively less for States than
Centre. Hence a need for balance definitely is required, for which the Finance
Commission and other enabling provsisions has been enabled.
FInance Commission
To be set up in 2 years of ocmmencement of Constitution and thereafter every 5
years or at earlier time as Prezz considers fit.
Duties are important - regd FC
1. DISTRIBUTION of net proceeds of tax (NPT) between C and S and ALLOCATION
between the States, the share of such proceeds.
WHICH ALL TAXES ARE DISTRIBUTED?
All tax and duties, except duties under Art 2688, 269 and surcharge under 271 are
distributed to States.
268 and 269 is appropritaed by States
and 271 is a surcharge for Union.

2. The Principles govering GRANTS iN AID out of CFI.


Art 275 (1) - GiA of revenue of such States as Parliament may determine to be in
need of assistance and different sums may be fixed by States.
Proviso (1) - Promotio of Welfare of ST in Assam
Art 275 (2) - (2) - All other Orders except (1) on GiA are to be based only on
recommendation of FC.

3. MEASURES TO AUGMENT the CFS to supplement resources of Panchayats and


municilaiteis of States. (By way of amedment - 73rd and 74th)
Grants for public purpose can come from State or Centre irrepective of their power to
make laws. THIS DOESNT REQUIRE RECOMMENDATION OF FC.
4. ANY OTHER MATTER REFERRED by PREZ. in the interest of sound finance.
EVERY RECOMMENDATION OF F/C IS PLACED BEFORE the each HOUSE.

Public Borrowing
Art. 292, 293
Borrowing powers of Union and States
Union - Borrowing upon security of CFI, within limits fixed by Parliament
State - Borrowing withing the territory of India, upon security of CFS.
No loan can be raised by States, if Central loan is outstanding, except with
permission of Centre.
FARC, SCSC, NCRWC Recommendations
More power and role to States
Realignment i role of P/C and F/C.
Set up I/S/C for settling conflicts.
SCSC Recommendations
1. Resource Sharing
Union Govt shoudl periodically consider exploring revision or imposition of duties
under 268
Monetary limit on tax of professions should be revised.
Royalty rate revision on minerals
2. Expenditure reforms

3. F/C and P/C


Division of responsbilities of C and S may continue
FC cell in PC should continously monitor the behavious of State finances
FC to take into account the expenditure liability of States on account of revision of
DA.
Art. 264 - 271
265- tax to be levied under authority of law.
266- Consolidated Funds and Public Accounts of Centre and States.

CFI = All REVENUE RECEIVED + ALL LOANS RAISED BY ISSUE OF TREASURY BILLS,
LOANS, WAYS AND MEANS ADVANCES + ALL MONEY RECEIVED in REPAYMENT OF
LOAN

In Short CFI = Revenue + Loans + Repayment money


CFS = ALL REVENUE RECEIVED BY STATE + ALL LOANS RAISE BYISSUE OF TR BILLS/
LOANS/ WAYS AND MEANS ADVANCE + ALL MONEY FROM RPAYMENT OF LOAN
In Short CFS = Revenue + Loans + repayment money

ALL OTHER PUBLIC MONEY RECEIVED = Public Account of India/ Public Account
of States.
APPROPRIATION OF MONEY FROM CFI/CFS can be made only in accordance with
LAW, PURPOSE and MANNER under the Constitution.
267- Contingency Fund
A Fund in the nature of imprest. the same may be created by law of Parliament.
Fund is at disposal of Prez.
Later such expenditure to be authorised by Parliament by law
Purpose :- To meet unforeseen expenditure
Same with State- at disposal of Governor
DISTRIBUTION OF REVENUE BETWEEN UNION AND STATES
268 - Exise duty on Medicinal and toilet prep.
LEVY - UNION
COLLECT - STATE (GoI for UT)
APPROPRIATE - STATE
268 A - Service Tax
LEVY - UNION
COLLECTION - UNION AND STATES
APPROPRIATE - UNION AND STATES
share and rules - as per law!

269 - SALE AND PURCHASE OF GOODS AND CONSIGNMENT OF GOODS - IN THE


COURSE OF IS T & C - (no newspaper)
LEVY - UNION
COLLECTION - UNION
ASSIGNED TO STATES AFTER 1996
270 - ALL OTHER TAXES OF UNION
LEVY - UNION
COLLECTION - UNION
DISTRIBUTED LATER
FC RECOMMENDATION

271 - SURCHARGE
TO CFI
273 -

Developments Since Sarkaria Commission - Esp Economic Reforms


A. Economic Reforms- 1991

Focus shift from Public sector to private sector.


State became an enabler rather than a producer.
Eg:- Enable infrastructure for private sectors
States with enabling policy and bettr infra could atrract more investments.
Other States with poor infra and resource base - left behind
Result -Inequality in rise among the States.
Large scale migration from poor state to rich states
Faster pace of urban growth in an inadequate infra developed
urban regions. Bigger problems welcomed.
a. Tax Sharing
Before 80th amendment - 2000
Mandatory sharing of IT and Permissible sharing of excise duties.
(Corporate taxes etc. held out)
Result :- State had complaint on less share and sharing percentage
After 80th Amendment - 2000
Sharing of all net proceeds of Union taxes and duties except those udner
268,69 and 271.
Result : No complaint on share from Centre; but complaints on share
percentage.
b. Tax on Services - Indirect
Intd in 1994 - for 3 services, later expanded.
B. 73rd and 74th Amendments - 1993
Art. 280 amended mandating Central FC to make its recommendations regardig
augmenting CFS to supplement the resources of loacl bodies on basis of
reccomendation fo State FC.
Result : Separate fiscal space for local bodies.
C. 2005 - TAX REFORMS
VAT introduced in states, at commonly agreed rates.
Result: End to cascading effect of sales tax
End to war between States by putting competitive tax rates.

COOPERATIVE FEDERALISM - promoted by this manner and did not affect


on the autonomy of States.
D. 2015 - PROPOSED GST
To be levied concurrently by Centre and States.
It will subsume a number of Centre and State tax.
Tax admin will be less cumbersome, investor friendly, transparent.
Improve voluntary tax compliance, reduce revenue loss.
In the larger interst of the nation and not to be seen from the perspective of loss of
autonomy of States.
E. FISCAL RESPONSIBILITY LEGISLATION
To manage public finances
Fiscal Resposibility and Budget Management Act was passed in 2003
Except WB and Sikkim, all have passed it.
Reason for the law - to curtail the rising fiscal deficit!
in 1990s- combined FD was around 10 %.
Combined revenue deficit - 6/9 %
This implied that 64% of borrowing were used for financing revenue
expendiiture.

Main Objects
- eliminate RD by 2008-09
- reduce FD to less than 3% of GDP by 2008-09.
Couldnt achieve targets because of global slowdown, increase in subsidies, farm
loan waiver, pay revision etc.
F. DEBT CONSOLIDATION AND RELIEF FACILITY (DCRF)
It comprised of:1. consolidating State's outstanding debt to Centre and
2. debt write offs linked to reduction of RD
3. containmet of FD at 2004 level.

To avail benefit of DCRF, the States were asked to enact the FRBMA.

This has led to all states enacting and managing RD and FD. Except for Sikkim and WB,
all other States have it enacted.

Borrowing by States
FC 12th - recommended - termination of lending to States and take the form of
Central Plan Assistance. - 2005
Before 2005 - Normal plan assiastance for GCS (70:30) and SCS (90:10)
Result of 2005 reccm:- Burden of States and reduction in loan payment time from
Centre - 25 years to 10 years.

Plan ASsistance to States


TWo Way

1. Reduction in budgetary support to Sates


2. Significant change in the pattern of plan assistance.
Earlier - Gross Budgetar Supoort rato was - 58:42. Worked at 66:34.
GROWING INTER STATE INEQUALITIES
Post reform period saw this change and the same was expressed in the 10th FYP. the
Western and South States benefitted largely because of proximity to ports, infra nad
better governance.
Transfer from Centre to States take place through three channels
1. P/C (plan grant)
2. F/C - Statutory transfers (Tax share and non plan grant)
3. Central Ministries. (plan and non plan grants)
ISSUES in CENTRE - STATE FISCAL RELATIONS

1. Vertical Imbalance in Resource Sharing


2. regional Imbalance
3. Growing Central Expenditure on Functions in State List
Large population lives in less developed regions
Result :- migration to urban regions.
States need to undertake investment in backward regions.
Humand and physical infa needs to be developed; Central assistance must
increase wrt backward regions.
Maintenance of assets should be considered as part of Plan expenditure
4. Regional Imbalances

Backward regions face backwardness to multiple factors. Therefore multi pronged


strategy needs to be taken.
Such as :- public investment in infra, pro active policies, to attract private
investment, high public expenditure on social sectors, and area specific strategy for agri
production, good governance.
Poor acces sto banking facilites hinder financial inclusion.
5. Compliance cost of Cenhtral Legislations
WL Act, FC Act, EP Act, BDC Act, Tribal Conservation Act etc.
Cos of compliance ois to be orn out of State funds.
Solution:

Take RTE Act- CEntre- Satte functional and fiscal responsilities have een
delineated clearly.
Such cost sharing and functional responsbilibility must be clearly defined in every Act
or central scheme.
In Food security law, as well the same patter must follow.
In mineral bearing Sattes, there is huge benfit for the nation as well. Fiscal
responsvilities in placing the system to work ust be dealt in by the Centre.
FRBM ACt

Targetting can be made effective by use of off budget liabilites.


Gvt o India has been issuing bonds to oil marketing cos and fertilizer co thrugh off
budgetig, This do not add up into the FD.
Srtengthening the FC
Compliants
Transfers ar based on old parameters and not on future performance.

Suitable strenthening needs to be done of the FC in Ministry of FInance


Per ccapita transfers from 1-8 FC shows that there was no marked difference in the
transfers across teh States indicating not so equalising nature of these tansfers.

since FC 9 the position changed. From FC 11 the transfer became more progressive.

balancing between equity and eficiceny is a difficult task and needs to be done delicately
the scenario is improving.
In the viw of rising inequalities, the FC cannot alone ne blamed.

Transfer thru FC is just one of the channels of resources and hence cannot address the
equity concerns affectively.
Further oer, addressing inequalitues needs a wider dimension espcially like planning
and public investments-- these are outside the purview of the FC.
The move y the FC to brudge gaps and ercoomend grants to special problems are some
developments.

PLANNING COMMISSION and its Role


Economic reforms and Planning Commission-

8th FYP was the 1st Plan after the economic reforms. The role of it had become
indicative in nature, as was clear from its Preface itself.

This meant the Plan was indicative and State to be facilitattor for private investment.

In 11 th Plan, share of public sector was 21% . depsite this, PC continued till 2014 end,
when NITI Ayog replaced the old socialist era PC.
Role of Planning in the Market Economy
A. INDICATIVE
3 imp change in post reform era with a major bearing on the planned economic devt.
1. Declinng share of public investment in total investment,
2. Financial constraints emanating from FRBM Act
3. Emergence of PPP as preferred mode of project financing.
Planning can play an indicative role in the said above context.

B. REDISTRIBUTIVE ROLE
State Role needs to be of facilitator and provider of basic infra- physical, social, financial.
However, eco reforms did not bring an end into the growing inequalitiies and hence
dismantling PC was not encouraged.
{Glaring example of inequality is that all the policies and scheme that push growth
are targetted at those who are socially and financially well. Such targeted scheme
can only help the middle class and the growing employed class.}

C. PRESCRIPTIVE ROLE
To influenze the behaviour of private agents to serve the public goals through enabling
public policies and ensuing smooth functioing of the common market.
PROBLEM IN THE CHANGED SCENARIO
1. P/C plays a mor role in coordinating various Ministries. This has led to a situation
where Misitries needed to require approval of PC for moving ahead with a project.
The P/C role needs to be of coordination whereby it has to ensure that sectoral plan
drawn by different Ministries are in confirmity with the overall objective of the
Planning.
This practise of seeking approval from Palnning may be dispensed with.

2. Mismatch between Annual Plan and FYP


AnnualPlan comes months after State Budget. Annual Plan is a difficult exercise because
of targets set in FYP and resource constraints.

Most often targets are not acheievd depsite fund availability. This leads to a mismatch
between the FYP and Annual Plan which leads to weakening of the Planning system as a
whole.
This problem can only be circumvented by multi year budgeting.
MYB means Firm budget for 1st years and provisional one for 2nd and 3rd yera.
FRBM envisages Medium term Fiscal Policy Statement - But this doesnt serve the
prupose of multi year budgeting.
3. ApPROACHH TO PLANNING
After eco reforms, State are in favour of more flexibility in the formulation and
imlementation of State Plans.

Regular approving of State Annual Plans may not be necessary in the new changed
context. The FYP must be prepared in consultation with the State so as to be in tune
with the National Objectives, and then they must be let free.

Therefater the State must be given the freedom to plan according to their needs and
priorities within the nationally accepted priorities.
4. Plan outlay usually oversee the FRBM targets wheever the State seeks higher plans
and the same is apporved by the P/C. When estimated resource do not materialise, non
plan maintenance expenditure takes the cut. The result is that life span of assets creaed
from Plan funcding and underutiisation of assets.
COMPOSIATION OF PLAN TRANSFERS
Before 1969 - Scheme Based Plan Assistance

1969- Formula Based Plan ASsistance. - Gadgil Formula


Thi was main channel of plan transfer.
GF had 3 revisions- last one in 1991
Latest : 70:30 and 90:10

GST
.......................................................................................................................................................................................
.............................................

DECENTRALIZED PLANNING AND LOCAL SELF GOVERNANCE


"If democracy is the cornerstone on which modern COnstitutions are built, then
enhancement of democracy must be inbuilt in the system to ensure its continued vitality."
This can be enhanced through:-

a. by maximizing citizen preferences


b. making it more responsive to people's aspirations
c. rendering it possible to use the creative genius of larger number of people;
d. making it more incluisve
e. making it more accountable.
All this leads to better governance and development.

This is ossible by further devolution of powers from 2 body to a third body.

The histrical evolution of grass root democrac have come to a full circle with the 73rd
and 74th amendment to the COnstitution.
Earlier societies were organised aoround tribes, class, cmmunities etc. and they had
their own system of governance.
They were supercede by Nation and Centre body of governance.

Panchayathi raj is the closest to direct democarcy because of the least number of people
they can directly deal with.
The relation with other tiers of Government and diviiison of powers and resposibilities
are highly formalised and governd by COnstitutional provisions, statutes and admin
procedures.
Eg:
1,. Legislative Domain- Not granted so far- depends on States.

2. Admin domain - coterminous with leg poewr witha dditinal provision on


adminsiatrtaion.
3. Financial domain - F/C and mandatory trasfers.

Historical Evolution of Local Governance - Post Independence

1952- Community Development programme

...................
5th and 6th Schedule and NER
TRIBAL RIGHTS
Constituent Assembly - set up Committee of Citizens, Minorities and Tribal Rights
Sub Committes - 2 set up!
1-> on Assam (Frontier areas)Rights
2 -> on Other regions- the excluded areas and partially excluded areas.
These two formed the basis of the rights recognition of tribals under the Constitution.
Assam Tribal Areas
Findings of the Committee
1. The areas in the frontier were partially explored and unadministered and was
under direct control of Governor General.
All expenditure was borne by GoI.
The State had no control over them and revenues were not voted to Legislature.
Governor given wide discretionary powers and adminsitered directly.
Partiallye xcluded areas - admin by States- subject to Governor powers.
The Tribes differed widely in language, customs and practises
1. The degree of development also varied greatly.
The worst amongst were the Frontier tracts.

Some better development was seen near capital areas.


Literacy high where Christian mission were present.
Agri was Jhum cultivation.

Partially excluded areas was expected to do better in governance, but due to dual power
of Governor and States, both disclaimed responsibility and thus remained under
developed.
2. Presence of inner democracy
The village Councils are created by general assent or election. These were non
statiuory bodies.
3. Distinct Features
Distinct social customs and tribal organisations of diff peole, as well as
religious beliefs.
Some have Matriarchal system, some have hereditary chief, some have
elected system.

Universal belief that they would be exploited by the people living in Plains.
States would not provide sufficient funds to the local council because of
pressure from Plains.
Recoomendations of the Committee

1. 'Partially and Fully Excluded' :- Govenance to be made autonomus, but leg, fin
and admin links to be set up with States.
2. 'Tribal Areas - Frontier tracts' - to remain with centre with full responsibility.
GoAssam to be agent.
When admin improves, the area needs to be given to States for admi

3. Gradual assimilation
4. Special role to Governor to filter Provincial legislations to these areas on
grounds of suitability.

5. Hill Districts to have power of legislation over occupation of land inc


management of forests, Jhum, establishing village council, and other functions such as
inheritance, marriage, personal laws etc.

6. The District Council to be given power to manage schools, dispensaries, markets,


forest roads etc.
7. Council to hav power to set up Courts etc.

8. Fiinancial powers to be given in par with people of plain in matter of taxation.


Funds needs to flow from Sattes, into these aresa due to deficit in income.
Fund sharing from revenue of State needs to be considered equoitably.

Centre must contribute in development of these regions and hence should make
good the deficit.
A special fund to be created for all sums accruing to District Counci;s.

During emergecices, special power to be given to Governor, to restrict use of


authority by Distrcit Councils. This is because local bodies exceed auth at times, esp
since the area is in border.
All India Servcies shoild be amde available without any conditions

Governor shoudl appoint COmmission to take stck of progress and needs to report
the same.
District Council needs to have rep in State legis.

What the Constitutent Assembly recommended?


Const provided for one Section and One Schedule - 6th

and accepted the reccomendations


Issues considered by CA
1. Problems of tribal regions highly complocated.
because of border with many countries.
Conflict torn region because of language, culture, relgion.
State may notbe able to handle such complex situation.
Act of Centre and State - would normally apply - Non applicationn is an exception
based on Governors decision.
6th SCHEDULE AREAS
A PART
1. Khasi Jaintia Hills District
2. Garo Hills District
3. Lushai Hills District
4. Naga Hills District
5. North Cachar Hills Distrcit
6. Mikir Hills

B PART
1. NE Froentier Tract --- Abhor, Mismi, Balipara, Tirap ..
2. Naga Tribal Area.
Later political map altered in NE by creating several States.
So now- 6th schedule = 4 State regions
==>Tribal Areas of
Assam,
Meghalaya,
Tripura and
Mizoram.

NAGALAND
Before 1962 - entire Nagaland was under this Schedule
1962- Nagaland State was created- This led to removal of those areas from 6th
Schedule.
But Art 371 A created- with special status for Nagaland

ARUNACHAL PRADESH
In 1974- Ar. Pr became UT and therefore, the areas in Ar.Pr was removed from 6th
Schedule.
Art. 371 H ccreated with special status for Ar. Pr.
MANIPUR

Manipur was never in notification, then and now.

However, when Manipur was created in 1971, Parliament passed legislation creating
Distrcit Council for Hill areas of the State.
371 C- MANIPUR
HOW TO REMEBER AMENDMENT AND ARTICLES371 A = NAGALAND ---- 3rd letter from last is the Rule ---- A
371 H = ARUNACHAL ---- 3rd Letter from last ---- H
371 C = MANIPUR ----TILT U to C
OTHER DEVELOPMENT
New territories added undr Schedule is BODOLAND - 2003.
TIERS OF GOVERNANCE
A. DISTRICT COUNCILS
Hence, for these 4 States - Assam, Mizo, Tripura and Meghalay- AUTONOMOUS
DISTRICT COUNCILS ARE CREATED. ADC
3 i assam
3 in Meghayala
1 in Tripura
3 in Mizoram

B. No regional Councils exist.


C. Village Councils
Not present for Meghalaya
BROADLY STATED, in no States, three tier exist.

However they have their own traditional institutions in place..


Judged from todays standards they are inadequate as they present insufficient
opportunities for youth and women.

They are denied opportunity in Council and are largely unheard. Teir pre colonial
traditional communities have been found to be highly unaccomodative in today's
context.
However, if the new and modern system of democracy with rinciples of equality and
else is placed on them, it can lead to mistrust and tension. Isssues of pwer sharing and
over powering are quite natural to arise.

IMPACT of 73rd and 74th aMEDNMENTS


Some areas are exemted from the Application of this law and thus provisions are seen to
that effect in Article 243 M and 243 ZC.

FUNCTIONS OF THE COUNCIL


LEGISLATIVE, JUDICIAL, EXECUTIVE,, FINANCIAL

LEGISLATIVE

1. With the assent of Governor, the DC and RC can legislate in matter relating to :Land allocation, management of forest not being reserved forest;
use of canal;
Jhum or cultivation practices
Estb of Village or town Committeess
Town police, health, sanitation.
Appointnent if headmen;
inheritance of proeprty;
Marriage, divorce
Customs
2. With assent of Governor, can form Rule on formation of sub ord local Council .
3. DC can make regulations on money lending and trading
JUDICIAL

1. RC/DC can constitute VIllage Courts/ Councils to the exclusion of any Court of State
for trial of cases between STs with exceptions.
2. The RC may also act as appellate body.
BTC not given judicial powers.
EXECUITIVE

Vary from Council to Council

Estb and construct Schools, dispensaries, markets, cattle poiunds, roads, rtansport
waterways,
Make regulations for regulating them.
Function relating to agri, animal husbandry, village planning to which State power
extends may also be given to the Councils.
FINANCE

District Fund & Regional Fund establishment.


To credit all money received resply by the DC/RC. CAG is entrusted with audit of
the same. Hence the same needs to be maintained as per CAG rules.
Power to CollectTaxes and Fees
RC/DC can assess land revenue and impose taxes on land, prfoession etc.
Entitlement to Royalties
For extraction of mineral wealth - throu licenses or leases
Disputes in regard to be dealt by Governor for setllement.

Resources allocation - Est receipts and expenditure to be placed before DC first


and the in Legislatire of States.

GOVERNOR POWERS

....................................

INTERNAL SECURRITY, CRIMINAL JUSTICE AND CENTRE STATE COOPERATION

National Security is not a Central subject, State subject or concurrent subject under the
Indian Constitution.
However, Security, if read from Art 352 and emergency provisions will amply show that
it is assigned under the Union.
However, security is a matter over which both Centre and State, equally have interest
and hence needs to be taken care in a coordinated manner.
This is saved by the Articles 256, 355,356 and 365.
Defence and Control & deployment of armed forces of Union are covered in Union list.
Public Order and Police - State List - E1,2

Criminal Law, Criminal Procedure and Administration of Justice - Concurrent List. - E


1,2,11
So its spread across the jurisdictions of Centre and State and therefore the same must
be dealt with most cooperation from both the Governments.

Internal Security may be defined as :


security against threats faced by a country within its national borders,
either caused by inner political turmoil, or provoked, prompted or proxied by an
enemy country, perpetrated even by such groups that use a failed, failing or weak
state, causing insurgency, terrorism or any other subversive acts that target
innocent citizens, cause animosity between and amongst groups of citizens and
communities intended to cause or causing violence, destroy or attempt to destroy
public and private establishment.
Naxalism and LWE is a result of socio economic causes.

Such issues cannot be said to fall within the ambit of law and order or military threats
from across the border. However, they cause both threat to society as well as national
security.
National Security - is largely under the ambit of the Centre.

Internal security, however, needs a coordinate effort of Centre and State.


Other key related aspects coming in relation to Internal Security are:1. Naxaalism,
2. Jihadist mode of violence,
3. Ethnic and Migration issues
4. Role of media during Disturbances
5. Police Reforms
MAINTENANCE OF COMMUNAL HARMONY

Communal Harmoony, as a subject was very important to India for the reason of India
being a seclar State. While guarding its secular credentials, the communal harmony was
to be acheived in two forms.
a. By curbing communal violece
b. taking positive steps whch would promote harmonious relation between the
communities.
Communal conflicts started gaining attentio by 1960s.
Assam riots -1960
MP riots - 1961
UP riots - 1980
Bihar - 1982,

Godhra - 1982
AP - 1983
Punjab - 1984
Mh- 1992
Gujarat - 2002
Odisha - 2008 (Hindu -Christian)
Hydabad - 2010
UP - 2014
Assam - 2014

Conversion issues - Odisha, TN (Meenakshipuram-1990)


Ethnic issues - NE
Civilian issues - Kashmir.
Communal issues can damage the fabric of secularism in the nation and hence action
from Union is deemed very essential in such context.
Reasons for such Communal Tensions
1. HISTORICAL
2. CONVERSIONS
3. LACK OF EDUCATION
4. LACK OF EMPLOYMENT OPPORTUNITIES
5. CASTE BASED POLITICS PROMOTING MISTRUST AMONG COMMUNITIES

Issues involved
Overriding responsbility is with States - because it falls under the 'Public order' realm.
However, if it prolonges and threatens to cause inernal disturance or which has
potential for escalation to other parts of country, then it becomes a head under Union
under Art 355
Dealing with such an issue raises 5 important issues:

1. Maintenance of communal harmony in the country is one of the key


responsibilities of both the Union and the State Governments.

The Government is expected to ensure that communal tensions and communal violence
are kept under control at all times.
In such cases, what is the ROLE, RESPONSIBILITY and JURISDICTION of CENTRE
vis-a-vis States
(a) During major communal tensions particularly the ones which may lead to
prolonged and escalated violence?----PEV;
(b) When such prolonged major communal violence actually takes place?
2. What measures needs to be taken to PREVENT AND CONTROL SECTARIAN
VIOLENCE or any other SOCIAL CONFLICTS that may lead to prolonged and escalated
violence?

3. What is a major and prolonged act of violence? What forms its parameters?

4. Does NIC have a role here in maintaining and sustaining social and communal
harmony in the country?
5. What is the constructive role that media can play in preventing and containing
communal and sectarian violence?
THE ISSUES IN DETAIL:
1. Maintenance of communal harmony in the country is one of the key
responsibilities of both the Union and the State Governments.
The Government is expected to ensure that communal tensions and communal violence
are kept under control at all times.
In such cases, what is the ROLE, RESPONSIBILITY and JURISDICTION of CENTRE
vis-a-vis States
(a) During major communal tensions particularly the ones which may lead to
prolonged and escalated violence?----PEV;
(b) When such prolonged major communal violence actually takes place?
Centre needs to play a PARENTAL/ FATHERLY ROLE in containing the build up of
communal tension.
PARENTAL ROLE
Timely advisories
Intelligence sharing
Monitoring situation
Providing force-para military on request.
Centre's responsibility to act under 355 in prolonged violence is a welll acknowledged
act.
Liberhan Commission also opined the need for a strict law with exemplary punishment
for misuse of religion and caste for political gains.
2, SECTARIAN VIOLENCE and PREVENTION
Prevention can best be done through :Planned implementation of welfare and development measures,

Regular interaction of the district admin with communities for homogenous


public relations,
Collection of proper intelligence in coordination with State and Central
Intelligence services.
Prevention of rumour spreading.
Spread of education and awareness.
3. DEFINING ESCALATED AND PROLONGED VIOLENCE

Such acts of violence which have the potential to spread to larger areas for long
periods and in a scale that would be injurious to a large number of people and be a
cause of damage to property within a a short time and having potential of
carrying a threat to national integrity and security should be taken as major or
prolonged acts of violence. Such prolonged acts of violence would have the potential
for collective spread of communal animosity, regional and sectarian
tensions, which may ultimately escalate to secessionist or separatist movements on
caste, communal, language or regional lines.
4.

ROLE OF NIC
It is of limited use of NIC as an instrument for promoting and inspiring the
objectives of communal harmony.
NIC could be used as a common forum to evolve a strategy beyond political lines.
National Foundation for Communal Harmony, autonomous body funded by Home
Ministry also needs revamp and revision.
5. ROLE OF MEDIA
Media sensalisation has led to escalation of violence.
Need to regulate media from over reporting:
~Frame strict guideliness
~ Self regulation
~ Empoewr State Govt to regulate media. This needs shifting subject to
COncurrent List.

India is a nation with religious and linguistic minorities. Racial issues have always been
transcended by religious issues.
Basically, society has the basic instinct of toleration and adjustment. The communalism
is of recent origin siunce the British times when they attepmted to sever ethe nation
from the spreading of INM.
This has escalated after independence as well.

CAUSES
Religious Conversions
Jihadi terrorism
Ethnic and sub nationalist approach - 'Son of the Soil'
Ethnic insurgency - NE.

HOW?
Involvement of political and seminally organized groups - abet communal conflicts.
Rendering poor communities as they fall prey to their selfish ends.
It is in this situation that healthy principles of rerligion are replaced bythe
narrow mindedness of fundamentalists who exploit the weakness of the religion.
WHY?
Electoral purpose and sometimes for partisan gains of religious leaders.
Hostile neighbours also add to the menace in India.
CONSTITUTIONAL PROVISIONS
Art. 25,26 - Right to Freedom of religion
Art. 29,30- Cultural and educational rights of minorities.
Normal communal conflicts can be held as under the Law and Order in State List
However, maintenance of communal harmony can fall under the secularfeatures of
COnstitution. - hence joint responsibility of Centre and State.

Roles and Responsibilities may be held as following


States - Direct participants, front line organizers for maintenance of communal
harmony and for controlling communal conflicts
Union - Role of paternalistic coordination, financial, legislative, advisory and
admin support including Para miltary
ARTICLE 355
External aggressio and intervention of Centre has never been a matter of debate.

However, Internal Disturbance is a very debated issue in many States where Centre had
intervened.
If Art 256 is read with this provision, it enables Union to give sufficenit directions to the
States to comply with.
The recommendations suggests that the Centre shpuld use this ower sparingly and
definitely with the consent of the States.

CONCLUSION AND RECOMMENDATIONS


.................................................................................................................................................................................
CENTRAL LAW ENFORCEMENT AGENCY
Union has been planning to have a CLEA which could take up suo motu investigation of
crimes having inter state / international ramfications with serious implication for
national security.
NIA is such an enforcement agency!
POTA was a legislation in place in 2002. Repealed in 2004.
Reason: severe abuse of poer!
UAPA - 1967.
Amendment needed
Amended in 2008.

Issues and Questions


India's Internal security, because of geo political and geographical conditions have
serious external connections, esp with neighbours. Such threats would need a synergy
between Centre and State.
Innrespect of the National security the overall objective of the Centre State relation
needss to be:1) to try to pre empt and prevent any possible threats.
2) to contain the damage to human life and proeprty in case of such incidents taking
place
3) to strengthen law enforcement system to make it deterrent for such crimes.
The need for A central agency will serve the prupose only with an equal strengthening
of State POlice.
What are the crimes that can be considered as affecting the National Security.

NIA should be able to undertake holistic meaures to preempt, prevent, control


and detection of terrorist crimes.

Investigation, as per the law requires Central Govt approval,. This could slow down the
process.

Circutious and delay centric agency is accused friendly. - leads to loss of info and time

Crime Investigation is a quasi judicail function of the Police and therefore need not fall
directly in the hands of the E xecutive.
UAPA Amendment expandded meaning of terrorism
It also criminalizes the acts of demanding firearms, explosives, bombs or any other
hazardous nuclear biological or chemical etc., device or material for the purpose of
aiding, abetting or committing a terrorist act.

One imporant change that needs to be effected is that the Confessions to be made before
the Police needs to be admitted as evidence before the law. This could be safeguarded
using
Camera recording
Tapes needs to be produced before Court
Presene of advocate for accused
Warning of video tape recording to the accused
Production of accused before Magistrate immediately.

This is suffered by lack of credibiltiy of police institutions. Civic society at large has
always opposed the need for confession before the police because of the abuse of the
system..
Hence reformatory angle is always linked to Criminal Justice reforms and police reforms
LIST OF CRIMES UNDER NIA
Largely those that comes under List 1
List 2 items largely fall under IPC.
Recommended that crimes that have inter state linkages and direct link to terrorism
should be brought under the purview of the NIA

This inc terrorism, production and distribution of Fake Cuurrency Notes,


espoionage, smuggling arms, ammunitionl money laundering, drug trafficking,,
organised crime, hijaacking and assasination attempts on iconic figures, cyber crimes,
cimes related to axcquisiton of posioous and hazardous substances, bio terrorism narco
terrorism etc.

Union Home Minister, suggested creation of a holistically responsible National Counter


Terrorism Centre. In a nutshell, the Home Ministers view is that since the Home
Ministry is primarily responsible for the maintenance of Internal Security in the country
and answerable for any lapses there off, the intelligence and investigation agencies and
other organizations and departments involved in this work, even though not under the
administrative control of the Home Ministry, should report to and function under the
National Counter Terrorism Centre(NCTC), where Internal Security matters are
concerned and fully cooperate with for the purpose of sharing information and intelli

These agencies and organizations may include the Intelligence Bureau(IB), the Research
and Analysis Wing (R&AW) including the Aviation Research Centre(ARC), the National
Technical Research organization (NTRO), the National Intelligence Grid (NATGRID), the
National Investigation Agency (NIA), the Revenue Intelligence Agencies, the Narcotic
Control Bureau(NCB) and, indeed, the Para Military Forces including National Security
Guard (NSG) etc.

The chief of the NCTC in turn would function under the Home Minister. To quote from
the Home Ministers paper, the chief of the NCTC will be the single person accountable
to the country on all matters relating to internal security. At the Governmental level, and
in order to be accountable to the Parliament, it would be logical and natural to place the
NCTC under the Ministry of Home Affairs.
This is yet to be materialised

CONSTITUITONAL POSITION
Art 355 speaks of Internal Disturbances!

The judgements of the Supreme Court in Karta Sinngha nd PUCL Case and other cases
leave no doubt that any criminal act which is aimed at, or which clearly has the potential
of, causing detriment to the countrys security, integrity, stability or sovereignty, or
destabilizing its economy, is to be deemed as a threat to national security and defence of
India adding that such perilous activities cannot obviously be left to be routinely dealt
with by the concerned State police force as an ordinary crime or law and order problem.
The Centre should have, in the view of the Task Force, a clear cut role in dealing
with such acts, albeit in active collaboration with the State Government(s) concerned.
The Commission endorses this view that creating effective legal and institutional
instruments to deal with external aggression, terrorist acts and serious internal
disturbances is a solemn duty of the Union Government obligated by the Constitution
itself and not a matter of choice.
CONCLUSION
Country needs a National Structure to maintain Internal security.
It should be capable of handling terrorist attacks, militancy, insurgency etc. It should
take care of pre emption, prevention, detection, investigation and prosecution.
US has come up with Dept of Home Land Security with all bodies placed under it, except
FBI - after 9/11.

NIA has its limitations under the aCt and cannot function effcetively to tackle internal
security.
Rather than amending NIA, a ew body NCTC shoudl be created.
Centralisation of function si the key feature and this mst be made in the national
interest.
Recommendations
NIA has an important role to perform and all necessary steps need to be taken to
strengthen the Agency through the requisite amendments in the NIA Act. For this
purpose, all crimes related to terrorism, such as terrorism, production and distribution
of Fake Currency Notes (FCNs), espionage, smuggling of arms and ammunition money
laundering, drug trafficking, organized crime, hijacking and assassination/assassination
attempts on the life of iconic figures/ political leadership, cyber crimes, crime related to
acquisition of radio-active
and poisonous substances, bio-terrorism, Narco-terrorism, i.e. drug trafficking
money used for organizing terrorist operations, etc., should be brought into the ambit of
the NIA Act.
NIA will have the jurisdiction in all these types of crimes on the presumption that they
are terrorism related, unless proven otherwise. The burden of proving that the crime
committed is not terrorism related will lie solely with the accused. This is a new area of
governance and crime management. The benchmarks of Centre-State cooperation and
the understanding set now in its implementation should be such that they can stand the
test of time and be an effective tool for handling terrorism and other related organized
crimes while still enjoying the full trust of the States.
a structure at the National level, be it NCTC or any such designated entity, should be
created, which may subsume the NIA too along with other concerned
Agencies/Organizations in its overall character. The Commission feels that the time is
right to break from the traditional models and create this structure which should be
fully empowered and responsible for the Internal Security of the country and should,
accordingly, be equally accountable. The commission would like to reiterate that in the
creation of such a structure the role of the

States should be clearly delineated as without that the Central structure may
not be able to achieve the desired level of success.
on the issue of
admissibility of Confession made before the police by the accused in terrorism related
cases which is crucial to the fight against terror. A consensus must emerge between the
Centre and the States on this issue. The case both, for and against, has been spelt out
clearly by the respective votaries. The several
joint consultative machineries that we have advocated in our report should be utilized
for the purpose of coming to a consensus in the matter.

SUO MOTU DEPLOYMENT OF CENTRAL FORCES?


The framework of the Indian Constitution with the balance of power tilting
towards centre came about as a result of the concern for the unity and integrity
of the country.
This was the reason that despite Entries 1 and 2 of List II (State List) in the
Seventh Schedule placing public order as the responsibility of the States and assigning
police as
the instrument for this purpose at their disposal, certain other provisions were included
in the Constitution outlining the obligatory role of the Union Government for
maintaining
the internal security of the country.
Entry 2A in Lst 1 was inserted in 42nd Amendment and the same remains despite
several changes were rectified in 44th Amendment.
This shows the usefulness and importance of that provision.
A convention thereby develope was that Central forces will be deployed on the basis of
consent of States and not otherwise.
This was witnessed in cases of Naxalism, ULFa adn jihadist terrorism where States had
asked for more Central forces in the State.

Commission opined that suo motu can come in exceptional circumstances for shortest
operiod of time, with the knowedge of States. MAY AOPLY RAREST OF RARE CASE
Commission suggest for greater support by Union in imporving poloice forces in states
y supplementing with tech, and other security infrastructure.

MIGRATION ISSUES
Refer Article 19 (1) d,e,g.
all citizens shall have the right to move freely throughout the territory of India; reside
and settle in any part of the territory of India; and practice any profession, or carry on
any occupation, trade or business.
Causes
Livelihood
Employment
Marriage
Also promotes unity.
The States can have laws to provide certain protection under Article 19(5) and (6) of
the Constitution as long as these laws are not to the detriment of the legal and
Constitutional rights guaranteeing freedom of movement, residence and employment
provided under this Article to all citizens of the country.
Migration was witnessed with India's economic integratoiion developed by Plannng
Commission whereby PSU were set up in certain parts of the Country.
Same witnessed in private sector - Mobility Migration ; and in art and culture..
Shiv Sena - opposed in 1966. They propunded regionalism - son of the soil approach.
Inter State movement is the most cause for problem. IIntra state or Inter district
movement is not an issue. This migration is largely due to economic imbalance The
economic planning in India aimed at inclusivesness and ensuring equality. Hiwever, the
saame has not been acheived in India in the real sense.

The inequality led migration is known as 'Distress migration'.


Other than this India sees large scale migration of people from Bangalesh and Nepal to
India.
The benefit of migration to receipent state is that of economic growth with the human
capital and also some kind of advantage by money remittances to other states.
RECOMMENDATIONS
NIC Should promote their engageent and ivolvement with local cukture
Political parties should take a strct stand towards such ssues of political violence and
The Communal Violence Bill if passed should be app,ied strictly.
The larger ocnstitutional goals must be repspected.
They may be encouraged to be part of local electorate.
This way they can eegt enngaged in lcoal affairs and also raise their voice for the needs
ad requiremets.
They can by this manner establish their credentials in the community in a ong term.
States and GoI shoudl eremove economic imbalances that haunts many States.
Removing Economic imbalance is a apriority but the effect will be long term. The
current mgration will move on hence the states should sensitize effectively all who
oppose it

OTHER INTERNAL SECURITY ISSUES


NE
LWE
JK
Naxal Problem and LWE

Financial sustenance of Naxalites


Extortion
Earlier by force
Now voluntary payment by industries, traders etc under duress
Sale of illicit drugs
Looting of arms and ammunitions
Main Startegy
Violence
Evolution

Merger of Peoples War Group and Maoist Cmmunist Centre of India in 2004 - escalated
their presence and led to formation of CPI (Maoist)
This envisioned Plan to develop 'Red Corrdior' - from Indo Nepal border to
Dandakarnya region.
90 districts influenzed by Naxal threats.
34 badly affected

States like Jharkhand, Chhattisgarh, Orissa, Bihar, Maharashtra,


Andhra Pradesh and West Bengal are the worst sufferers from the violence purported
The fact that the movemen has sustained for decades and spread to many sstates do not
undermine the reason being only as ideological. Instead the reasosn are deep embedded
into the deep discontent people have over the raisng ineqaulity, under development,
poverty etc.

Grievance us TWO FOLD:


1. Lack of Goverance
2. Exploitation of natural resources, forest and forest cover.
Areas which have seen the fruits of development, where infrastructure is good, where
the local economy has been well integrated with the rest of the country, where people
have participated in
local governance and where their aspirations have been recognized and nurtured by
the State administrations, have withstood the ideological onslaught.
Solution
Possibly is :- 'Inclusive and Good governance'.
FOUNDATION OF POLICY TO HANDLE NAXAL ISSUE - 2 core elements
1. Rapid development of the affected areas guaranteeing social justice to
the tribals and other backward communities inhabiting these areas;
2. Taking all needed administrative action to ensure that the Rule of Law
and the Writ of the State runs fully and effectively in the areas which are
presently under the influence of the Naxals.

There are difference of opinion in the way the matter is handled despite having
identified twow core elements to deal with the threat.
Opinions are raise by NGO, civil society, regional political parties etc

DIFFICULTY IN IMPLEMENTATION
Rapid devt cannot be ensured in the area because of continuing violence.
The undedevelopment and lack of social justice is being proppageated in thee areas
by the naxal group thus increasing their base size.
Regular damage to transport infrastructure
Causalities to security forces.
WHY THERE WAS SOCIO ECONOMIC NEGLECT IN THESE REGIONS FOR SEVERAL
YEARS?

PRE REQUISITE TO AN APPROACH


COLLECTIVE AND COORDINATE ACTION SORT FOR because of its sread to several
regions.
UNION APPROACH 'ABJURE VIOLENCE FIRST, TALKS LATER'
Both cannot go together.
Towards abjiring violence GoI as been insiting on surrendering of arms.
Peace talsk first initiative was put in place in 2004 _ in AP.

During talk periods, Non action by Govt led to regrouping naxalites with greaeter
force.
Talks were not succesful and naxal acts followed. this led to stern action from
Govt.
IMPROVE CENTRE STATE and NTER STATE COORDINATIION
Inter State - By joint action by neighbouring States.
Initiativez
Regular securyt reviews
Intensified Joint anti naxal operations
Intelligence sharing'
Hot pursuit of extremists
General infor sharing
Fortification of POlcie stations
Coordinated mechism with State Forest Dept
To check inter state smuggling of woods.
Deployyment of CRPF
Creation of local joint resistance groups
To keep youth away from these.
Sensitiation of Mass media
To project the schemes and the threat of naxal violece
OTHER NEEDS
States needs Centre finance and coordination
Finance
For security and development of infra adn modern equioment
Employment to the youth esp in para military
Will help in terrain familiarity.
Better policing infra

Naxal issue demands serious Centre - Satte cooperation

State Level developments


Land reforms
Etension of PESA to the regions.
Vesting of foreet rights under the Forests Rights Act.
Better delevery mechansims as part of Good Governance.
Posting competent officers for fixed tenure.

Union level developments


Rehabilitation and Resetllment Policy - 2007
Mke displacement of peole for economic growth an easy option.
Provids for 'Land in return for Land' for displaced families.
Prefernce in project Jobs to at least one person in the family.
Vocational Training
Scholarship to children
Houing benefits to affected families

NREGA
Employment is provided on demnad for BPL, SC ST population inc women
Other CSS

Benefit is most of these projects are at Panchayat level opertaio and hence
successful to a good extent.

CONCLUSIONS AND RECOMMENDATIONS


If ABJURE VIOLENCE FIRST principle didnt work must to the benefit of the State,
alternative initiatives needs to be worked out..
Track II initiatve of setting up interlocuter can be tried.
Interlociters need to be 3 or 4 personnles
accompanied by security and intelligence experts
Eminent persons who are sypatizers ofthe group who understand the socio
economic issues but at the same time believe that violence is not the solution.
This interlocutory growup needss to sensitise the nxal leadership without being
defensive about Goi Initiaive such as R ad R policy, land reforms, NREGA, Forest rights
implementation, PESA etc..
DEmands full support of State Governemnt in such initiatives.
NORTH EAST
Partition led to further isolation of NE leading to a 2 km chicken neck as the only
means to connect between the Indian mainland and NE region.
It has 8 states. 200 ethnic groups- several languages - multiple dialiects and socio
cultural identities.
98% of the border is connecting neighboring countries thus making it more sensitive to
international matters.

PROBLEM
Asssertion of various groups in asserting their identity esp in the perseption of
neglect by the dominant ethnc group of the region, Mostly intra ethnic conflicts have
spiralled now..
Neglect by the region, State and Union
RESULT
Need for sovereigniity. maximum autonomy, separate States, empowered District
Councils.
Serious threat to security and intergity of the nation,
Violence has been conained to a great extent due to
dialogue proces, peace taks and Suspension of Operations Agreemnet.
Creaion of Bodoland Territorial COuncil - 2003

Now largely isolated regions have insurgent grooups-- but all have a commonality of
cause.
1. Economical infrastructure backardness
Led to unemployment, lack of ooprotunities, insecurity etc.
2. Identity crisis among the ethnic group.
ITS A CHAIN LINK PROCESS
INTIAL NEGLECT BY STATES- Lead to Imbalaces in the society-- Leads too tensions
--- Violence .. Once this stage is reached, develpment becaomes a problem.
CONSTITUTIONAL PROVISIONS
Under Article(s) 371(A), (B), (C), (F), (G) and (H), introduced from time-to-time starting
from 1969 special provisions have been added in the Constitution for the
States of Nagaland, Assam, Manipur, Sikkim, Mizoram and Arunachal Pradesh
respectively for the protection of customary laws, religious and social practices and of
the special position of some districts or sub-regions having distinct ethnic identities
within a particular State
etc.
Besides, some of these Articles provide that no Act of Parliament in respect of
the specified subjects shall apply to the particular State unless its Legislative Assembly
decides that it be so by a Resolution.
INTER STATE BOUNDARY DISPUTE

States like Assam and Nagaland have bundary disputes and to prevent its escalation
the Centre has deployed para military forces in the region.
NE Boundary Commission has to be constitututed to take care of this issue.
CENTRE - STATES
Cordinated and COncerted effort is needed
Sharing intellgience,
AFSPA isssue needs reconsideationa and suggested by StAtes to repeal the same
and put in place a law to deal only with terorism.
AFSPA - 1958
1st applied to Assam, the Manipur as UT, then.
Later to all states of NE. not Sikkim - 1972
JK - 1990

Now argely in Manipur, Trupura, Asam, Ngaland. Little in meghalaya and Ar.Pr.

Reason for holding up this law


Seccesionist movement in the region.
Opposition has been raised by NGO, civil society and HR grups on cintinuation of such
a group.
2004 - Central Govt appointed a Committe to overlook the situation and recommenda
on continuaton of AFSPA
2006 - submitted report - fiding naot made public.
2nd ARC - 2008 - To repal the law and amend UAPA to exted to NER
Commission - To repeal.
The Act is making situation more complex.

OTHER ISSUES
POROUS BORDERS with Myanmar, Bdesh, China , Bhutan.
INTER COUNTRY MIGRATION
Smuggling of drugs
Fake currencies,
Illegal transit of arms and ammuniation
HOW TO DEAL
TWO WAY APPROACH

1. AT THE COMMO ISSUES


2. AT INSUGENCY SPECIFIC ISSUES AS THESE RELATE TO EACH ETHNIC GROUP

Need to Create Regional Infrastricture Development Authority has been emphasized. in


China's Yunan Privince the same way was adopted to deal better with the issues.
Create Regional Autonomous Planning Body with one member of PC as its head.

Create NERC in the lines of ISC udner Art 263.


To amicably settles issues.
Strengthen Distrct and Regional COuncils

Interlocutary approach with a single vsion of restoring vision, iinstead oof different
visions
Intelligence sharing
Inter State Border dispute settlemnt
Cooridinating joint state actions
Constituting Reggional Secutiy Authority
Such a body should not come in way oof para military forces who have been
assigned their respective jobs or even of unified STate commnads.

It should act as a facilitator for providing gudance on overall security situation in


the region
and as coordinator between Army, Central Para Military Forces State police
Forces so as to ensure maximum cooperation and understanding.
They need to wokr on a stretgy toreduce dependeance on para mailitary and army
and replae it y States by developing the State forces simultaeously.
Other issues

Social infra
Water resources
Create NE water Reource Authority - as PM then required.
to look at composite development, and management of water
resources for flood control and irrigation, tourism and transportation, hydr power envi
management, etc.
Create Regional Infrastructure Advisory Council.
It may provide for devt of HR so that skilll devet from local regions can
be used for development programs..
MIGRATION ISSUES

Para Military Forces


Nepal Bhutan Border
Shashatra Bheema BAl (SSB)
China
ITBP - Ind Tietan border
Myanmar
Assam Rifles
Bdesh
BSF

Bdeshi migrants are sort by Indian emloyers for the very chepa labour and more hours
of work they need to put in place.

A work permit regime should be set in place to track the migrants from Bdesh.
NIC needs to work to coordinate inter mingling of mainland Indians from the other NE
region people.
J&K
.....................

POLICE REFORMS
CRIMINAL JUSTICE SYSTEM

SOCIO ECONOMIC DEVELOPMENT, PUBLIC POLICY AND GOOD GOVERNANCE


Introduction

Ensuring good governance and achieveing social and economic justice are m=among the
most important Constittional goals in India.
While analyzing the performance of successive governments on socio-economic
development and delivery of basic services for the welfare of people, focus needs to be
on the dynamics of public policy and good governance under the Indian Constitutional
Scheme. Its futile to discuss whether the system is failed one or whether the persons
behind them have failed when the debate of need for good governance has come in
place.

A. PUBLIC POLICY, CONSTITUTIONAL GOVERNANCE AND PUBLIC ADMINISTRATION

Policy making to be more Inclusive


Organisaing Governance demands development of a good public policy.
Public policiees are more important in federal system where Governance works in
several layers.
Good policy pre conceives consultation with the public. AN effective policy can help
devlop into legislative framework
a. PUBLIC POLICY,
ADMINISTRATION

CONSTITUTIONAL

GOVERNANCE

AAAND

PUBLIC

Policy Making to be more Inclusive and Consultative


Governance is effectively done under the background of a policy.
In Federal system, Policies assume more significance because of devloution of powers
with various organs.

Converting Policies into laws and programmes needs support of all stake holders. This
support is garnered through CONSULTATION.

A good governing system mmandates and presumes Compulsory Consultation with


stake holders before any sort of policy is put in place.
Eg: EIA has public consulatation as a requirement.

Bills are sent to Committees which in turn send it for consultation.

However, strict Policy decisions do not consider Consulatation as a norm.


Hence, some litigation is filed against the pollicy for concern amonh the public
especially if it involves at stake the social security and livlihood issues.
Policies should identify the different categories of stakeholders- who would be affected,
first.
Govt should respond effectively to the concerns raised in Public Consultation
Policies should be clear on guidelines on implementation and monitoring based on
identified parameters and targets.
This helps in effective implementation with the larger support of the public.

'One Size Fits All' Approaach needs to give way to building policies which are fexible, as
necessitatated by the diversity of the nation.
Ina democrati system with multi functional Governemnt, it is not always posssible for
Government to take up and decide on policy matters. Hence, citixens should be given a
provision to seek policies in areas which concern them. Today PIL is the method taken
or adopted requiring Government to frame polcis. This must be converted to an
opportunity to citizens to raise the issue directly with the Government. Citizen's
petitons to Government increase legitimacy in Goovernance, rather than taking it to
COurt.
(An effective study must be done by the Govt and based on which action may or may not be
taken. All of this, does not vitiate the person's right to take the Government to Court via
PIL.-my inputs).
Constitutional Governance and Pub Ad
POWER TO PUBLIC IN THE CONSTITUTION IS REFLECTED UNDER PREAMBLE, FR and
DPSP.
Art. 37 = Directives are fundamental in Governance!
So, if public power is exercised in the spirit of Preamble and FR and DPSP, then it makes
way for good governance.

In India, Pub Ad, continues in the colonial mould.


No improvements largely seen to improve quality of governance.
So, what was enshriined in the Constitution, needs to be recognised as a right of
citizens to good governance. Constitution believed that it is part of Constitutional
governance. But the same has been ill considered by successive governments in India.
Making Government ACCOUNTABLE is an essential step i ensuring implementation of
Directibve principles.
This can be done by asking Government to submit annually to Parlimaent on status of
implementation of DP
RTI is an essential step in furtherance to it.
2nd ARC on civil sevants's efficiency needs to be implemented
Civil servants needs to be insulated from political pressure to perform functions
objectively and fairly.
Police Reforms had been stated now and then by various Committeess and Supremm
Court but has never been given a say in Govt policies.
pub Ad works in a set of rules and procedures
needed constant revision
too many levels delays process and broods coruption
Needs revamp of performance evaluation
Only then punishments would ake sense.
ICT use needs to be enhanced.

AIS officers needs to be politically neutral and functionally independent.

Panch Raj needs more devolution of functions and cooperation of civil servants.
Vigilance needs to be pro active to improve pub ad and ensure delivery of services to
the people.
Civil society pressure needs to be created to wake up admini. The acheivement of
Ciizens in other States must be passed on to the cisitizens of other states.
CITIZEN'S CHARTER AND ACCOUNTABILITY

Art 350. - Citizens representation forredress of grievance.


Most neglected area in Pub Ad :- delivery of services.
Govt needs to prepare Citizen's Charter in which Entitlements to citizens are listed and
the time when it could be expected.
To monitor and act as a grievance redressal in case of failure to deliver services, an
Ombudsman must be created.
Fund devolution is followed by Financial audit, but not performance and
implementation audit.
Oversight mechanism are very important in such cases.
Social audits must be made mandatory at any cost.

there should be third party assessment.


Conclusion and Recommendations
Policy Making needs to be more Inclusive and Consultative
In sectorspecific subjects, mechanisms like public hearings may be statutorily
employed involving Panchayats and Municipalities. This should be done through
holding of mandatory consultation wherein the governments, both at the Centre and
in the States, should clearly respond to the views expressed and concerns raised at
these public hearings before finalizing the policies for adoption.

The policies themselves should clearly identify the different categories of stakeholders
who would be affected, in one way or other by the policy. Further, the policies should
contain clear guidelines on implementation and monitoring with reference to identified
parameters and milestones
One Size Fits all Approach needs to stop

There needs to be constituioal empowerment to the people to petition the


appropriate government for making or amending policies.

PIL does this work now.


Article 350 does envisage such a procedure for redressal of grievance in respect of
delivery of public services. This approach would have a two-fold purpose: first, would
help to preserve the separation of powers, and second, would enable the policies to be
citizen-centric.

Need to Improve Vigilance System in Public Adminsitration


Civil Society involvement in public policy and administration is the best strategy for
good governance. What is important therefore is to maximize opportunities therefore
while making policies and programmes. In this regard, the Commission recommends,
inter alia, the following steps:
(a) Let good governance be introduced as a Directive Principle of State Policy.
(b) The citizens right to have a corruption-free government be acknowledged as part of
administrative law.
(c) To increase the efficiency from civil servants, the rules of recruitment, remuneration
and career progression need to be completely revamped on the lines recommended by
the Second Administrative Reforms Commission (2008). The civil servants need also to
be insulated from political pressures to be able to perform their functions objectively
and fairly.
(d) There is a need for the All India Services to be politically neutral and professionally
independent. Vigilance structures and Lok Ayuktas need to be strengthened to
constantly monitor and improve the quality of public services.
(e) It will be desirable to disseminate the achievements and good practices of
better performing States through publicity campaigns and conferences to make citizens
realize what their fellow citizens in some other States have been able to achieve with
same or less resources.

(f) All service providers, government or private, be asked to prepare and publish the
entitlements of citizens in relevant sectors through Citizens Charters.
(g) Social Audit of the major policy initiatives of government at periodic intervals be
made a mandatory practice and reports be placed on the table of the Legislature every
two years with comments from appropriate governments.

SOCIO POLITICAL DEVELOPMENTS AND ITS IMPACT ON GOVERNANCE

SOCIO POLITICAL DEVELOPMENT AND ITS IMPACT ON GOVERNANCE


Reggional and Sectarian Pulls and Ntional Purpose
DESPITE THE CONSTITUTIONAL GUARANTEE OF CENTRE AND STATE
AUTONOOMYN IN FUNCTIONING AND GOVERNANCE, CERTAIN DEVELOPMENTS CAN
ACTUALLY AFFECT THE NATURE OF GROWTH AND GOVERNANCE IN THE NATION

What are impact of regional issues on Governance at Central Level


1. Emergence of regional parties and a Coalition with National Party at Centre can be
seen as threat to federal system and also an oppotunity to enhancing the integrity of
nation.
Threat because of narrow national outlook and the need to settle things to their
demand
Opportunity because they are forced to temper their narrow outlook for a national
development.
Weakness lies when two regional parties belonging to 2 states form a part of one
coaltion and at the same time are at loggerheads due to some inter state disputes.
Need
To balance the interests
Sovereginty and integrity is important.
Any force, within and outside which threatens existence of the nation must be
countered. Regional parties and forces must be seen with a factor of suspicion too.
Eg: j&K, Punjab, NE States, Naxal regions.Telangana issue.

Having had a very diverse and plural society, it is important to bear in mind that
the constitutional structure which must be preserved itself allows sufficient
room and flexibility for the many diverse identities that make up India.
Benefit of having regional identities are that regarding them as vital to govvernance can
work a long way in curbing tensions, and thus contribute towards national integrity in a
meanigful sense.

Is, therfore, the Coalition politics an impediment to the growth and development of the
natio?
Commission says no.
Holds that it is not inherently problematic,
Because:
It is a result of consious choice of Indian electrate on many different occassions.
Hence, the reasoning that it lacks logic and eraason cannot be stated easily.

It also points that exisiting All india party or any other party could not address the
specific issues of the problem of that region or community or language ased, that forced
them to come up with such a move of creating regional parties.
They indeed also help in making more accountability at village levels.

Even if seen as a threat for the Unity and integriy of nation, States have opined that
as far as they have full fith in the Constitution, such regional parties born out of
circumstance, can not be considered as threat to India's integrity. Though political
growth envisages some kind of streching too far and beyond their limits, it raises no
issues or concerns to raise alarm of national security. Such prblems are poltical and
hence needs to be dealt and solved oplitically, not legally or constitutionally.
Some good examples of having reginal parties are in Punjab which helped eliminate
militancy, South states where language related tensions were clamped down.

LSG and Centre State relations


Issues are raised by States that Centre allocates funds directly toLSg rather than
through the machiner of State undr which LSG form an inherent organisation.
Centre should be acutious in such devolution of funds.
Because:
1. areas in respect of which it is allocated is largely uner State domain - Legally;
2. Keeping States out of is purview leads to anomalous situation. where entity with
constitutional powers are deprived of power to function effectively.
3. When Centre couldnt devolve funds , the lack of cooperation rom states will lead
to grave consequences.
CONCLUSIONS
1. Need to develop a positive approach to sectarian mobilisation
Take balanced and mature approach

Constitution allows for enough flexibility to acocmodate regional sectarian and


separatist movements as long as they are within the parameters of the Constitution.
Centre needs to be more accomodative of the various bodies, as far as they are in
confirmity with the Constitution.

2. Coalition politics is a Game to be played within Constitutional Framework

Culture of shared governance needs to be pracised and nurtured for good


governance.
3. LSG and CS relations
Centre needs to be cautious of byassing State machinery
Need to alocate funds through State Govt is empphasized.

BASIC NEEDS OF THE PEOPLE, DIRECTIVE PRINCIPLES AND STATE


ACCOUNTABILITY
What are the COnstitutional responsibilities of the Union and Centre wrt fulfilment of
FR and DPSP.
FR guaraantees our rights as citizens and limits the Governmental powers.
Correponds to ICCPR
acts as restrints on States
DPSP are fundamental constituional goals in the realm of socio economic justice
that is to be kept in mind while the Cnetre or State devises and executes policies.
They are non justiciable.
Corresponds to ICSECR.
Confers positive duty on state.
SC:- Balance between FR and DPSP is itself a basic structure of the COnstitution. Hence
oth are fundamentally important and neither can be absolutely be prioriized over the
other.
Constitutional Responsbility for Implementation of DPSP.
Legal and technical perspective of the Constitutional vision and the demarkation in the
responsbibilities of the Centre and State.

Article 13 (2) states that:- [t]he State shall not make any law which takes away or
abridges the rights conferred by this Part and any law made in contravention of this
clause shall, to the extent of contravention, be void.
Article 12 of the Constitution defines the meaning of State for the purposes of the
Chapter on Fundamental Rights. It states as follows: In this Part, unless the context
otherwise requires, the State includes the Government and Parliament of India and
the Government and the Legislature of each of the States and all local or other
authorities within the territory of India or under the control of the Government of
India.
Hence from the reading of Art 12 and 13 it is evidennt that FR applies to all levels of
Government and to all type of laws.

Article 37 states as follows: The provisions contained in this Part shall not be
enforceable by any court, but the principles therein laid down are nevertheless
fundamental in the governance of the country and it shall be the duty of the State to
apply these principles in making laws.
This, when read with Article 36 which states State means Centre and State can lead to a
conclusion that technically, both Centre and State have resposbility in implementing the
DPSP. The issue in matter is while both the Centre and State are expected to function in
the fulifilment of such policies, it may be noticed that both the Governments need not
work in an identical manner in the fulfilment of such duty.
This differntiation of works between two governments arises because of
differential capcaity of each Governemnts.

1. Whil State has limited taxing powers and therefore little income, the Centre has
more taxaing power and other means to derive income.
In this context, the finance must be seen at frst before devolving the duties and
responsbilities of the Centre and The State.
2. Constitutonal powers of Union and State are very diffeernt as enshrined in the 7th
Scheudle.
Here the powers are well demarkated. However, some constitutional goals such as
education and health care are expected to done by all levels of government. Therefore in
this context the respective duties of both centre and State must be clear to avoid any
type of anomaly. Further more this demands coopertaive federalism and constructuve
collaboration.
The responsilities in such coontext are joint and several. While legislative formulation
and mplemntation may come from States, the finance respurces maybe folowed from
the Centre.

For effective governance, periodic assesment of Governace under DPSP needs to


be takenand reported to Parliament so that the same is brought to the knowledge
of the public.
This method is adopted in UN when India signs treaty. Annual or Bi Anual reports are
given by the Cnetre about the developments taken i so far as such initiatives are
concerned.
The DPSP may as well be updated with the change in time..

It cannot be denied that there is a Central bias in the Constitution wrt maters listed in
the State lIst.

For eg:- in Agriculture:


Primarily a matter in the State list; however there are several facttors related to agri
that comes as part of Centre.

THE WINDOW FOR CENTRAL INTERVENTION AS LIKELY AS FOLLOWS:


(i) Broad Scheme of Part XI (Legislative and Administrative Relations).

(ii) Aspects relating to Agriculture falling under Part XIII on Trade and Commerce.
(iii) Entries 42, 43 and 44 of Union List relating to inter-State trade.

(iv) Establishing standards of goods for export under Entry 51 of List I.

(v) Control of industries including agricultural industry under Entry 52 of List I.


(vi) Entries 64 and 65 in List I relating to scientific education and research.
(vii) Entry 66 of List I on standards in higher education.

(viii) Entry 20 of List III on economic and social planning.

(ix) Entry 29 of List III on prevention of infections diseases in plants.


(x) Entry 33 of List III on trade and commerce.
(xi) Entry 34 of List III on price control.

RTE Art. 45
The State shall endeavor to provide, within a period of ten years from the
commencement of this Constitution, for free and compulsory education for all children
until they complete the age of fourteen years.
Mohini Jain Case (1992) - Edn is a FR.
P.Unnikrishnan v. State of AP - Art 45 has 10 year limit for a reason. The passage of 50
years has effectively converted the non justiciable right into a fundamentalr ight.
However, Article 45 doesnt speak of economic capacity and development as in article 41
which speaks generally of socially relevant matters.
RTE also means that a citizen has his right to call the State to provide educational
facilities to him in the limited capacity of the State.
State cannot vie away from its repsonsbility by saying that it need npt provide
education to its citizens because of limited capacity to provide.
Its fundamental to enjoying RTL.
Not all DPSP elements falls in to the ambit of Par . RTE is fundamentally importance.

THE QUESTION OF SHARING RESPONSBILITY BETWEE THE CENTREE AND THE STATE

RCFCE ACt 2009 Passed.


The major wuestion in frmae is relating to devolution of powers.
The broad framework uner the law relates to fianncial and administrative
responsbility of the Centre and State's responsbility to implement the same.

Act states that the State and Centre shall have concurrent responsibilities for providing
funds for carrying out provisions of the Act.
The Centre shall provide expenditure details and provide State Govt with percentage of
the costs, in consultation with the State.
Centre may ask the F/C rto examine the need of additional financial resources.
SSA

CSS - to universalise the elementary education thru sitrict based, decentralised


planning and iimplementation strategy by community ownership of the school system.
Main Strategies of the Scheme
1. Institutional Reforms - By oth Centre and State.
of Edn admin, acheivement levels in schools, financial issues,
decentralisation, community ownership, review of State Education Act,
rcruitment of teachers and ratio of teacher to student, monitoring and evaluation.
2. Community Ownership
decentralisation with more transparency.
3. Focus on Special Group - SC/ST/ minority, urban deprived, children of other
disadvantaged groups, children with special needs.
4. Finance- Direct installment of Central funds to the State.
Critique of the Act
HIGHLIGHTS
1. All children between the ages of 6 and 14 years shall have the right to free
and compulsory elementary education in a neighbourhood school.
2. Kendriya Vidyalayas, Navodaya Vidyalayas, Sainik Schools, and unaided schools
shall admit at least 25% of students from disadvantaged and economically weaker
groups.
3. The Central Government and the State Government would have concurrent
responsibilities for providing funds for carrying out the provisions of the Act. For the
same, the Central Government should provide Grant-In-Aid revenues to the State
governments in consultation with them. The State Government to be responsible to
provide funds for implementation of the provisions of the Act. (Emphasis supplied)
4. The appropriate government and the local authority to provide
compulsory education to the children.
5. It shall be the duty of every parent or guardian to admit or cause to be admitted his
or her child or ward, as the case may be, to an elementary education in
the neighbourhood school.

6. The National Commission for Protection of Child Rights or, as the case may be, the
State Commission for Protection of Child Rights constituted under section 17, of the
Commissions for Protection of Child Rights Act, 2005 (4 of 2006), shall, in addition to
the functions assigned to them under that Act, also perform the following functions,
namely (a) examine and review the safeguards for rights provided by or under this Act and
recommend measures for their effective implementation;

(b) inquire into complaints relating to childs right to free and compulsory education;
and
(c) take necessary steps as provided under sections 15 and 24 of the said
Commissions for Protection of Child Rights Act.

Notwithstanding anything contained in the above section, any person having any
grievance relating to the right of a child under this Act may make a written complaint to
the local authority having jurisdiction. Any person aggrieved by the decision of the local
authority may prefer an appeal to the State Commission for Protection of Child Rights or
the authority prescribed under sub-section (3) of section 31, as the case may be.
ANALYSIS

1. Shared and concurrent responsibilities of the State Government and the


Panchayats:
Both the State Government and the local authority have the duty to provide free and
compulsory elementary education. Sharing of this duty may lead to neither Government
being held accountable. From the perspective of federalism, the Act states that those
schools established by the State Government would be under the authority of the State
while those established by the centre, would be under the authority of the
Central Government. Further, the Panchayats have the duty to provide free education at
the local level. However, as past experience has shown with NREGA, as also the NRHM,
this only results in vagueness of demarcation of responsibilities among the various
stakeholders.This is because while devolution of authority to the local Panchayats is
essential for ensuring that the local needs of education are comprehensively met, at the
same time, the mechanism as structured at present does not adequately integrate
itself with the PRIs. For panchayath,to make it possible, it must have fiannce at its
disposal. However, there is no mechanism for Panchayat to get funds from the State.
Thus it becomes that the local panchayats have no real authority to implement and
monitor the provisions of the Act in the local community.
2. FInancial Deficits

Even with respect to the State Government, whose functions are co-terminus with
that of the local Panchayats, there is a joint responsibility between the State

Governments and the Centre for providing the financial resources. The Central
Government has to give the grant-in-aid to the states, but ultimately no definite formula
sharing plan has been provided under the Act itself. Although the State Government can
ask the Finance Commission for the additional expenditure, however, the same is a very
weak provision to ensure adequate funds for the State Governments to implement the
provisions of the Act. Ultimately, without adequate financial guarantee to implement the
Act even at the state level, the Centre continues to exercise strong influence over the
State Governments, thereby limiting the freedom of the same in ensuring universal
education.
3. Redressal Mechanism
Third, the mechanism provided for implementing the Act is also ambiguous. As things
stand at present, there seems to be a blatant vagueness on whose ultimate
responsibility does enforcing the right to education vest. The Act provides for redressal
of complaints by devolving the powers to the National Commission for Protection of
Child Rights or, as the case may be, the State Commission for Protection of Child Rights
constituted under section 17, of the Commissions for Protection of Child Rights Act.
However, as is common knowledge even five years after the enactment of the Child
Rights Protection Act, every state does not have a state commission set up. Further,
without prejudice, the Act also confers the same powers upon the Panchayats without
providing for an appropriate enforcement structure. In the present context under the
Act, the state is the local authority. If the children themselves are considered incapable
of enforcing their right, and thus require either the parent/the guardian to represent
them, how will they be in a position to effectively pursue complaints against violations
of their rights in a multiple system of distribution of responsibility? Should it not be that
since the rights of the child reach beyond the legal system, and refer to all the public
authorities, and since macro-economic and fiscal procedures can jeopardize the
implementation of these public policies, should there not be a more simple redressal
mechanism in place where the child would have the right to enforce his basic human
right? Can this not be done through the adoption of a single and comprehensive
mechanisms wherein there is no overlapping of different government (centre, state and
panchayat), and the public institutions (both private and public schools), each with a
specific agenda and a limited responsibility?

From the perspective of Centre-State relations, the problem with ensuring elementary
education lies with the fact that since the issue of education is essentially the case of
policy and programme decentralization, it becomes even more urgent to understand the
mode of shared authority between the three tiers of the government. At present, the
education models in place are such that the states depend excessively upon the centre
for finance, and also are required to contribute certain amount of their financial
resources in the scheme of shared financial responsibility. As a result, even if the state
has been given the entire responsibility to set up neighborhood schools, provide the
entire infrastructure for training the teachers, school buildings, make the appointments,

ensure the enforcement of elementary and compulsory education for all the children,
but not the financial means, thereby resulting in excessive concentration of power in the
centre, any noble intention of providing the citizens with free and compulsory
education gets undermined. Further, even where there is an attempt to decentralize
education by making it the responsibility of the local Panchayats to provide for
compulsory education at the grassroots level, there is no prescribed fiscal formula for
devolution of resources by the state to the Panchayat, and there is an overlapping of
functions between the state and the Panchayat, with no clear demarcation of
responsibilities . Therefore, at present the manner in which the federal powers are
being shared may result in the alienation of one of the tiers of the government vis--vis
the others. As a result, it might so happen that there would be an imbalance of power
created among the three tiers of the government, thereby resulting in unaccountability
to the child. Thus, it is time to respond to these questions to realize the inherent right of
free and compulsory education.
Commission recommneddedd that since the Education falls under the Concurrent
List, tthe Centre, amy in consulatation with the States, come up with an Universal
Accreditation System and Standard Setting body with participation from Centre,
State nd private bodies.

JUSTICIABILITY OF DPSP
Social and economic justice is one of the basic objectives of the COnstitution of India.

Concept of social justice consists of diverse principles essential for the orderly growth
and development of personality of every citizen. The object of social justice is to bring
economic equality, provide a decent living and to safeguard the interest of the weaker
section og the society. --- Lingappa v. State of Mh 1985
Economic justice embodies the idea of making equality of status meaningful and life
worth living at its best removing inequality of opportunity and staus social, economic
and political. -- Dalmia Cements..
Social Justice and economic empowerment are FR in CESC v. SC BOSE - 97 SC

The social justice scenario is to be investigated in the context of two streams of


entitlements: (a) sustainable livelihood, which means access to adequate means of
living, such as shelter, clothing, food, access to developmental means, employment,
education, health, and resources; (b) social and political participation, which is built on
the guarantee of fundamental rights, and promotion and empowerment of the right to
participation in the government, and access to all available means of justice, and on the
basis of which justice as a political programme becomes a viable reality.

SOCIAL JUSTICE - M. NAGARAJ v. UNION OF INDIA


Social justice is one of the sub-divisions of the concept of justice. It is concerned with the
distribution of benefits and burdens throughout a society as it results from social
institutions - property systems, public organisations etc. The problem is - what should
be the basis of distribution? Writers like Raphael, Mill and Hume define social justice in
terms of rights. Other writers like Hayek and Spencer define social justice in terms of
deserts. Socialist writers define social justice in terms of need. Therefore, there are
three criteria to judge the basis of distribution, namely, rights, deserts or need.
These three criteria can be put under two concepts of equality - formal equality and
proportional equality. Formal equality means that law treats everyone equal and
does not favour anyone either because he belongs to the advantaged section of the
society or to the disadvantaged section of the society. Concept of proportional equality
expects the States to take affirmative action in favour of disadvantaged sections of the
society within the framework of liberal democracy. Under the Indian Constitution, while
basic liberties are guaranteed and individual initiative is encouraged, the State has got
the role of ensuring that no class prospers at the cost of other class and no person
suffers because of drawbacks which is not his but social.
The Constitution has set the goals of welfare State .
WELFARE STATE:
Welfare State provides for a large number of social services, like public medical services,
national health and unemployment insurance, widows and orphans pensions, old age
pensions, public assistance, subsidizing house- building, the control of housing and
supervision of town planning etc. All these are altogether independent of what had been
done earlier, namely, factory legislation, Workmens Compensation Acts, legislation
restricting the employment of children under a certain age etc. This enlarged concept of
social, economic and political justice enables us to make a natural transition to the
Directive Principles which have been described as the manifesto of a Welfare State.
Part IV endorces socio economic right of the ciizens
Art 38 - promote welfare of the people
Art 39 - right to livelihood, health and strength of workers, mena womena dnchidren of
tender age.
Art 41 - Social security

Art 43 - Better living conditions for workers, full enjoyment of leisure and socio cultural
opportunities-cottage industries etc.
Art 47 - state to raise the standards of living and improve public health.
Art 43 A - participation of worjers in the management of industries
Art 46 - Obligation upon the State to promote educational and ecoomic interst of
Scheduled Caste, ST and other weaker sections.

CASES
AK Thakur v. UoI - 2008
The Directive Principles of State Policy are made non-justiciable for the reason that the
implementation of many of these rights would depend on the financial capability of the
State. Non-justiciable clause was provided for the reason that an infant State shall not be
made accountable immediately for not fulfilling these obligations. Merely because the
Directive Principles are non-justiciable by the judicial process does not mean that they
are of subordinate importance.
Champakam Dorairajan Case
The Directive Principles have to conform to and run subsidiary to the Chapter of
Fundamental Rights.
This was held not a proper view.
Minerva Mills - 1981

The Fundamental Rights are no doubt important and valuable in a democracy, but
there can be no real democracy without social and economic justice to the common man
and to create socio-economic conditions in which there can be social and economic justice
to every one, is the theme of the Directive Principles. It is the Directive Principles which
nourish the roots of our democracy, provide strength and vigour to it and attempt to make
it a real participatory democracy which does not remain merely a political democracy
with Fundamental Rights available to all irrespective of their power, position or wealth.
The dynamic provisions of the Directive Principles fertilise the static provisions of the
Fundamental Rights. The object of the Fundamental Rights is to protect individual liberty,
but can individual liberty be considered in isolation from the socio-economic structure in
which it is to operate. There is a real connection between individual liberty and the shape
and form of the social and economic structure of the society. Can there be any
individual liberty at all for the large masses of people who are suffering from want and
privation and who are cheated out of their individual rights by the exploitative economic

system? Would their individual liberty not come in conflict with the liberty of the socially
and economically more powerful class and in the process, get mutilated or destroyed? It is
axiomatic that the real controversies in the present day society are not between power and
freedom but between one form of liberty and another. Under the present socio- economic
system, it is the liberty of the few which is in conflict with the liberty of the many. The
Directive Principles therefore, impose an obligation on the State to take positive action for
creating socioeconomic conditions in which there will be an egalitarian social order with
social and economic justice to all, so that individual liberty will become a cherished value
and the dignity of the individual a living reality, not only for a few privileged persons but
for the entire people of the country. It will thus be seen that the Directive Principles enjoy a
very high place in the constitutional scheme and it is only in the framework of the
socioeconomic structure envisaged in the Directive Principles that the Fundamental Rights
are intended to operate, for it is only then they can become meaningful and significant for
the millions of our poor and deprived people who do not have been the bare necessities of
life and who are living below the poverty level.

The above discussion entails that Part III and Part IV of the constitution comprises of
the entire jurisprudence on what comprises social, economic and political justice, that
is, what are the rights of the citizens of India, and what are the obligations on the part of
the State in that behalf. Overriding the principle of subsidiarity of the Directive
Principles of State Policy, the principles today constitute an integral part of governance
in our country, and the rights so enumerated in that Part have to be given the same
status as that of Fundamental Rights.
Thus, to sum up:
1. The basic constitutional scheme for realization of socio-economic goal is laid in Parts
III and IV of the Constitution.
2. Entrenched and Justiciable Fundamental Rights enshrined in Part III
provide Constitutional guarantee of these basic human rights as being inalienable and
not subject to political vicissitudes.
3. Directives for realization and effectuation of Part III are contained in Part IV that
permeates the whole ethos of Part III.
4. Synthesis and integration of Fundamental rights with Directive Principles in the
judicial process of constitutionalising social and economic rights has been crucial in
giving impetus to the pace of realization of the Directive Principles not only as a means
to effectuate Fundamental Rights but also as a source of law for a Welfare State.

STATE ACCOUNTABILITY FOR THE IMPLEMENTATION OF DIIRECTIVE PRINCIPLES


The key to good governance in a federal system is to ensure proper devolution on the
bsais of relevant criteria.

WHAT ARE VARIOUS STRUCTURAL CNSTAINTS IN THE DELIVERY OF PUBLIC


SERVICES:
1. Extreme fragmentation in the Policy Making structure.
Formulation of policy in one area fails to take note of its effect in other socials
ectors.
Health policy fails to take into account - Education, Housing, employment
factor etc.
This leds to non alignment of the policies across alll common issues.
Lack of integrated approach on cllosely related subjects has been pointed by
ARC as responsible for por results in governance.

2,. Excessive overlap between POlicy Making, Programme formulation and


Implementation.
Thua it leads to focusising on operational convenience rather than people needs
and expectations.
3. there is inadequate non governmetal inpuits and informed debate

these problems have been identified as specfic to the Idnian model of federalism
and thus a look into the various model in other fderations will help out seek
reforms in Indian system
UNILATERAL FEDERALISM
In scenarios in which there is interdependence and the relationship is hierarchical, the
relationship is described as unilateral federalism in which the federal government, by
and large directs provincial policy, usually through conditional funding.
Thus, the models major weakness is that it infringes upon jurisdictional autonomy.
On the other hand, the model is considered the most effective for national programs
and associated benefits due to minimum overlap between policies, and advantages of
economies of scale. This is demonstrated well by the national medical and hospital care
in Canada.

COLLABORATIVE FEDERALISM
In scenarios in which there is interdependence and the relationship is non-hierarchical,
the relationship is described as collaborative federalism. Here, the federal and
provincial governments work
collaboratively to attain policy goals, and there is no coercion on part of the
federal government.
The major strength of this model is that it allows for national programs while
protecting jurisdictional autonomy. On the other hand, its weaknesses are that the
model has the potential for excluding the public, requires an effective dispute resolution
mechanism and blurs accountability.
Canadian and Austalian model
Features:
Coordination: Involving collective action to address such problems as
drought/water management that cross state borders. States are also invited to
participate in negotiations of international treaties in cases where State interests will be
particularly affected
Harmonisation: Efforts are made to ensure that State and Commonwealth legislation do
not clash and, possibly, force the Commonwealth to challenge the States
legislation under Section 109 of the Australian Constitution, which stipulates that
when Commonwealth and State legislation conflict the Commonwealth shall prevail;
Financial Assistance: Specifically the use of specific purpose payments, can be used to
further collaboration between the States, Territories and Commonwealth on issues of
mutual concern or be exploited by the Commonwealth to further its own policy agenda;
Ministerial Councils: Such as the Council of Australian Governments (COAG) and the
Gene Technology Ministerial Council constitute collaborative arrangements
between the States, Territories and Commonwealth to exchange information, discuss
policy formulation and coordination, and establish protocols and regulatory
frameworks in different policy areas; and
Intergovernmental Agreements: Agreements that formalise arrangements
between the Commonwealth and State ministers and set out the objectives, duration
and procedures
COOPERATIVE FEDERALISM

It describes a system of federalism not where there is necessarily cooperation in the


ordinary English sense of the word, but rather, where there needs to be cooperation
between levels of government to get things done in the system. Germany is an example
of a cooperative system of federalism. In Germany, what you find is a real division of
labour between the Federal Government and the Lnder. The Federal Government does
not deliver health services but does provide the regulatory framework and policy
settings within which the Lnder and the private sector provide health care. This
includes issues such as insurance, quality control, funding and national priorities in
terms of health. Responsibility really is split but it tends to be a division of labour
between the setting of regulatory and policy frameworks (Federal) and the delivery of
services and provision of infrastructure (Lnder /Gemeinde).

In cooperative federalism it is not a case of everyone being responsible for everything.


In Western systems of cooperative federalism, it is still important to define the roles and
responsibilities of the different tiers of government. So, for example, in the case of
German federalism, the Lnder are more or less responsible for the delivery of services
and the
Federal government is responsible for setting out the policy and regulatory
frameworks. Institutional design here is critical. The Constitution says that only the
Lnder
can
carry
out administration in areas where they have jurisdiction. The Constitution also sets up a
system where the Lnder have to agree to spending requirements before they can be
passed by the National Parliament. The Bundesrat, the federal house of the German
Parliament, is composed of the governments of all the Lnder. The Bundesrat system
means that the Lnder have a real veto power over policies and programs that affect
their priorities and spending.
The most significant weakness of cooperative federalism as seen in the case of Germany
is that with reunification and the increasing globalisation of the economy in 1980' s and
1990' s, the interests of the Federal Government and the Lnder had become so
entangled and enmeshed with one another that it was impossible to get anything
decided or determined. Thus, the much needed reforms in healthcare, pension,

education and industrial relations could not be achieved. The Germans are currently
engaged in a series of difficult attempts to reform their system to disentangle the roles
and responsibilities of the Federal Government and the Lnder so that each has greater
autonomy over certain areas of activity. (Entflechtung) They are, in essence,
attempting to shift the German system more in the direction of a coordinate system of
federalism like Canada or the US.
PUBLIC POLICY DISPUTE RESOLUTION MECHANISM
Together with the need for consultation, there is also a need to have a public policy
dispute resolution mechanism. Such system appreciates the nexus between policy
formulation and delibertive democracy.
It creates a situation where Govt gives space for the marginalised and others equally.
In the context of India, with the implementation, monitoring, redressal of public
services being under the eye of public debate, and with the increase in the number of
public-private partnerships, the consultative process further demands such a
public policy forum where the professionals involved are mediators who are also policy
specialists. This forum should be based upon the collaborative governance model as is
being advocated in the other countries.
The three reasons that are attributed for the emergence of collaborative governance in
the
USA
are:
i) Legal fragmentation and multi-jurisdictional problem-solving are the two most
important sources or symptoms of institutional complexity and interdependence.
ii) The highly adversarial nature of many agency decision-making processes has led to a
search
for
more
collaborative
forms
of
governance.
iii) The highly disputed nature of public decision-making have led to a search for more
direct modes of legitimating public decisions. The shift has broadly been from indirect
modes of legitimation through forms of representative democracy to more direct and
participatory democracy.

The Cmmission is in favour of Public pOlicy - Colaborative Governance Model as it


would be innovative way of ensuring that PP resolutions are carried on with the
inclusive participation of the citizenry, thereby enhancing the democratic process.

Increasing Transparency and Accountability Through Social Audit Legislation


The major concern haunting Indian schemes are its implementation, monitoring and
corruption.
Inadeautae funds has often been raised as n issue in India, however, inefficieny in
delivery mechanism if dealt with effectively, then this burden can of placing reason on
inadeqaucy will not find any reasoning.
In democracy people have the right to ascertain the enforcement of the delivery mech
by dircting the govt officials to do the needful.
Social audit is indeed the tool to claim that right.
Social Audit has found its place in the MNREG Act.
- the first of its kind.
NRGEA Guidellines has a chapter on Social Audit.
Social Audit is a continous ongoing processs through which the stakeholders and the
intended beneficiaries of the project are involved at every stage :- From planning and
implementation to monitoring and evaluation.
It is conducted Jointly by people and Govt. who are the inended beneficiaries of the
activity benig audited..
BENEFIT OVER GOVT AUDIT
It actually guarantees that the decisionmaking process is infomed by viiews of the
stakeholders and beneficiaries and thus takes into account the loal conditions
approrpriate for designing and implementation of the policies thereby effectively servig
the public interst.
This lets The People to remain VIGILANT.

It is beyond the scope of information.


It is a new perspective on positive participation and connotes active liberty.
Thus it exhibits some elements of direct democracy s sharing of sovereign's power to
govern.
Capacity of people to articipate is coextensive with syates power to make
decisions.
Social Audit invlovs two main aspects of implementation:
1. Participation in Planning and Implementation
2. Vigilance of the ongoing works.
NREGA Guidelines contemplates 11 Stage proces of implementation from
registring families to Payment of allowance and social audit, which involves
people participation.
How
The 11th Stage involves Social Audit Forum - Here info will be read out publicly
and people can question Officer in charge directly , seek and obtain info , verfy
financial expenditure , examine the entitilements, discuss priorities in choices
made, and evaluate citicallly.

It also strengthens RTI Sec 4 which calls for proactive discloosure even without
request being made by public.

ELEMENTS/NORMS IN SOCIAL AUDIT LEGISLATION AS ESSENTIAL TO ANY SOCIAL


WELFARE LEGISLATION
Transparency - In admin, decision making, with oligation on govt to give people full
access to info.
Participation - An entitilement for all the affected persons to participate in the decison
making process.
Consulatation and COnsent - In those rare cases, where options are pre determined out
of necessity, the right of affected persons to giv informed consent as appropriate.

Accountability - The responsibility to anser questions of action and inaction.


Redressal - Reporting to the people of the outcomes of social audit.
To achieve the critical mass of social audit norms in any piece of legislation some
innovations to the substantive as well as procedural part of law should be put in place.
Right to participate during the planning stage is a substantive offshoot of the social
audit process. Importantly in a Social Audit Process procedural innovations take the
center stage as procedure is the most practical and salient unit of legal rules having
capacity to undermine the entire process, thereby, Much of work which goes in making
a social audit compatible law has its nexus with democratizing the everyday procedures
laid down by the law. The experience of the NREGA implementation has taught us that
social audit procedures coupled with some substantive underpinning can ensure better
delivery of entitlement. It helps people to own up the Act. They guide, monitor and
evaluate the administration of the Act.
Social audit has power to change the power equation exisitng between the decision
maker and beneficary. This is beacuse participation of people brings inn some amount
of accountability, thereby diluting the traditional view of decision aer being at centre of
power.
Framework of social audt does not envisage hierarchy structure in terms of creating
additional tier for alloting responsbility and acoounablity.
As much as the audit process brings with it rights to the people, the same is also
accompanied by certain duties on their behalf. This duty is apparent : the duty to remain
vigilant and the burden to undertake the social audit. Since the role of the government
as a facilitator is well-defined, to that extent the government becomes accountable. But,
beyond that there is really no onus of accountability upon the government save the
social audit process. Therefore the burden of taking up the social audit process seriously
is on people only. Obviously to create such environment where people feel motivated to
carry out the role falls within the domain of facilitator function of the government.
Responsibility corresponding to governments facilitator role should find a statutory
cover. NREGA is a pioneering Act in that regard. Social audit demands continuous
participation and involvement in vigilance from people. NREGA is the first Act in the
history of independent India to have given that kind of space and role to people. But
experience with the Act has shown that peoples involvement has not really percolated
down.

This issue obviously questions the very foundation of social audit process itself. Firstly,
we need to identify what triggers public involvement and whether Social Audit Norms
will be able to energize people sufficiently. What should be the role of government in
this regard? If we envisage government merely as a facilitator and not beyond that will
public action necessary to fulfill the role prescribed by the Social Audit Norms happen
on its own? More than that, characterization of public action in the context of social
audit process is an intriguing question.

ANDRA PRADESH CASE STUDY AND SUCCESS IN IMPLEMENTATION


Andhra Pradesh has been one of the most successful states in implementing NREGA.
The accountability and transparency measures enshrined in the NREGA have been
utilized by the state of Andhra Pradesh by undertaking social audits for all NREGA
works across the state. The Andhra experience is unique because it marks the first time
that the government has proactively taken steps to open itself up to scrutiny by citizens.
The first step in this direction was to computerize the entire implementation process of
NREGA. All the data is public and available for scrutiny. The social audit process is
facilitated by the Rural Development Department through the Strategy and
Performance Innovation Unit (SPIU) that provides the organizational backbone to the
process. The SPIU is headed by a director, who is a drawn from the state civil service
cadre. The presence of civil society ensures that there is a high degree of autonomy and
objectivity to the exercise. It is one of the most important checks and balances that have
been built in to the process. The director SPIU together with the social development
specialist is responsible for taking all policy and management decisions related to the
conduct of Social Audits on NREGA. The State Resource Persons (SRPs) are responsible
for managing the day to day aspects of conducting the social audit. This includes
drawing up the social audit schedule, training district level resource persons, liasoning
with district level officials and ensuring follow-up to social audit findings. The District
Resource Persons (DRPs) are responsible for managing the actual conduct of the social
audit. This includes identifying the village social auditors, training the village social
auditors along with state resource persons, filing RTI applications for accessing
government documents and interacting with the mandal level officials to organize
logistics and the public hearings. The social audit itself is conducted by volunteers from
the villages.

ISSUES WITH IMPLEMENTATION OF MNREGA

1. There is a lack of clarity about the various actors basic responsibilities under the
NREGA. The Act directs each State Government to notify an employment guarantee
scheme to give effect to the work guarantee. The combination of a Central Act with
State-specific schemes calls for rigorous coordination between Central and State
Government, however, the same does not happen. In this regard, it has been reported
that even the basic operational guidelines so issued by the Central Government on
guaranteeing minimum entitlements has not yet been fulfilled.
2. There is a need to strengthen the administrative structure of the Act for
implementation of the Act which includes the centre, state, village, block and district
levels. There is a need to create awareness of the act and capacity development among
the key stakeholders such as rural households, Panchayati Raj Institutions (PRIs), user
groups, local communities, NGOs and local government officials. The monitoring ane
evaluation emch at Cnetre, State and local level needs to be stregthened to ensure
effective implementation of NREGA.
Specifically, the division between centre and states in financial, implementation and
monitoring processes poses challenges in the present federal structure. For example, a
large part of the expenditure of NREGA is covered by the Central Government but the
crucial penalising provision of unemployment allowance is burdened on the states.
These become crucial in the context of states where the political alignment of
governments at central and state level is not on friendly terms to each other.
3. It is only recently that the The Ministry of Rural Development through a Press
Release has formulated the guidelines for setting up the District level ombudsman as
the redressal mechanism and the formation of an independent monitoring mechanism
comprising of prominent citizens. But even now, the State governments are yet to set
up the Ombudsman. Kerala has the Ombudsman functioning for the last several years.
PUBLIC PRIVATE PARTNERSHIP FOR BETTER DELIVERY OF SERVICES
CONCERNS
1. Delhi Jal Board Controversy- WB had prssurised the Gvt to give the contact to a
specific agency and that the terms of contract had given immense profits to the
private agency. In this context, the misuse of power must be taken care of. The
contract was ultimately withdrawn.
2. Preferential selection of private companies and the imposition of onerous terms and
conditions in the contract upon the Government threatens sovereignty and leads to
corruption.

3. Various regulatory agencies set up by state legislations in different social sectors are
unable to work independently, and are captured by private interest.
Moreover, there exists a lack of regulation in health and education sector as
well where there is private sector flourishing.

It must be taken care that while a sector is being pushed to private players,
sufficient safeguards needs to be in place.
However, PPP can be considered as an effective medium.
PPP is different from private players in the sector.
GoI: "PPPs are different from privatization. While PPPs involve private management of
public service through a long-term contract between an operator and a public authority,
privatization involves outright sale of a public service or facility to the private sector.
Benefits of Private sector participation
May help in introducing innovative ideas,
generating financial resources;
introducing corporate management practices;
improving service efficiency and
accountability to users.

However, larger question relating to accountability, Human rights, , public good,


democractic accountability have raised eyebrows.
Different answer wrt that:

1. The private sphere has grown over time in size in areas where public ector wwas
not providing sufficeint services.
The governments should evolve mechanisms through which such organizations
can actively participate in formulation of policies and implementation and
mobitoring/supervision of projects/programmes.
This will ensure utilization of their financial resources, engagement of their human
resource expertise and their improved involvement in government policies/projects/
programmes.
A uniform Policy needs to be developed by Union in such cases, instead of letting States
and Union form diverse policies and leading to confusion and reliability.
Selction of Non state actors should be done in a fair, tansparent and non compromising
manner.

~So State have also said that they need to nbe included under the head State in
Part IV and Part III
Already consistent with the blurring of the public-private divide, the Supreme Court of
India is adjudicating on such issues. In such cases, the issue before the court is whether
the term other authorities can be expanded to include the private entities. At present,
the definition of the state does not include private entities performing public functions.
Thus, the citizens would have no right to claim against such an entity, performing public
function, for breach of its obligations.
~There needs to have sufficient safeguard in the system to check corruption and
icresing capitalistic approach of the State so as to please the private players.
~The private players must be boound by strict riules.
~Make social audit so as to make them accountable to citizens.

~Strengthen the PRIs


Since PPPs are to be implemented in every state in different fields like water,
infrastructure, education and health, which fall under the State list, participation at the
grass root level through decentralization would enhance accountability of the local
government and result in participation of the disadvantaged in the decision-making
process. This would be possible only by the effective implementation of the
73 rd Constitutional Amendment. Further, decentralization would also enable to deal
with any attempt to capture the state regulatory authority by special interest groups,
thereby minimizing corruption in the privatization process.
The Peoples Campaign for Decentralized Planning as developed in Kerala indeed
resulted in the decentralization of administration, fiscal powers and political powers to
the local self-governing institutions. This in turn led to enhanced economic
development and increased public participation that involved the minority groups in
the decision-making process.

~Have a regulatory mechanism for monitorting and evaluating.


~Provide for sufficient checks and balancces witin hthe MOU
Regulation may be broadly understood as an effort by the state to address social risk,
market failure or equity concerns through rulebased direction of social and individual
action

The Planning Commission has emphasized upon the need for having an independent
regulator as the facilitator between the market/private player on one hand, and the
three branches of the state on the other.
It is for the purpose of preventing overlapping of regulations, creating a simple
regulatory regime, and ensuring accountability to the people through supervision of the
state and the private sectors.
This can result in transparency adn accountabiity in the negotiation of contracts.

The regulator should incorporate processes and systems whereby the


stakeholders would have access to information, would be able to make
representations and have full participatory and process rights. This would also be an
effective safeguard against capture of regulatory system by the special interest groups.
The important aspects in the institutional framework for regulatory commissions would
be their role and functions,
their relationships with the executive and legislature, and their interface with the
markets and the people.

the provisions of the Administrative Procedure Act, 1946(APA) to public participation


in the contracting out process could be extended to the regulatory regime so set up in
India.
The work of Alfred Aman draws upon exploring how administrative law that provides
for publicity, opportunities for participation, and the inclusion of the dissenting
community groups , can further regulatory efficiency and mitigate the democracy
deficit, especially when it is the direct delivery of services to vulnerable populations
that has been privatized. He thus advocates allowing the broader public to play the role
in
the
design
of
the
contract
themselves.
The reason underlying the same is that unlike the agencies, the private actors at present
are not bound by the provisions of the Administrative Procedure Act. Thus, they do not
face judicial review of their policy decisions, even though under government contracts
they make discretionary decisions affecting the course of public action and allocation of
public resources.
CONCLUSIONS AND RECOMMENDATIONS

1. Social Justice - as essential to the COnstitutional priniples

It is the general impression that successive Governments both at the Centre and in the
States have not been successful in the implementation of the Directives which form the
core obligations of the State vis-vis social justice and welfare. It is time to recognize it
as the joint and separate responsibility of all three levels of government and demand
time-bound implementation of the obligations thereunder. Let the State and Central
Governments acknowledge the obligations and introduce it in Annual Budget
Statements.

2. Need for assessment of State Performance in respect of DP


There has not been any independent assessment of the performance of
State and Central Governments in respect of implementation of Directive Principles
which are fundamental for governance. The Plan implementation assessment is
inadequate for the purpose. The Human Development Reports being brought out by
some states tend to give an incomplete picture of the situation and the UNDP report on
the subject is equally not reflective of the total picture.
3. Review of DP periodically
Givem the growth of knowledge and technology in recent times, it has become
necessary to rview DPSP fo further development.
4. Shared Responsbility and State Accountability
Depending on different models of governance, the various federals have developed
different systems such as:- (a) unilateral federalism in which the federal government
directs provincial policy usually through conditional funding; (b) collaborative
federalism in which both governments work collaboratively to attain policy goals and is
characterized by the absence of coercion from the federal government; and (c) cooperative federalism where roles and responsibilities of different tiers of government
are well defined which necessitates co-operation from all levels of government. India
needs to move towards collaborative federalism model.
5. PPP for better delivery of services
Draft a NP to bring in private players for acive participation in delivery mech.
Checks and Balances in MoU
Nationallegisation specifying penalities for breach if duties
Hold social audit
Amedn Art 12
Structure a regulatory mech consisting of an ndependent regulator who would
have teh auth to over see all the state regulatory agencies in various sectors.
Setting a Accreidtation system forensuring credibility of non state org.
Stregnteh PRi for effective cooridnaton and consultataion.
6. Public Policy Dispute Resolution MEchanism

CENTRALLY SPONSORED SCHEMES AND ISSUE ON TRANSFERS


1. Basically probelmatic in fiscal transfers

They tend to make a uniform prescription for all situations withoutnadequate regard
to local and state specificaities and suffer from lack of flexibility.
Schemes are straight jacketed without scope for innovations.
WHAT COULD BE DONE?
Need to make them mre attuned to local needs y convertting them to untied
funds for each sector for each State for specified and need based action plans
prepared by the State and sanctioned by the Centre if they fall within the broad
parameters of guidelines issued by the CEntre.
This will help State formulate rojects in action plan which fulfill the aspirations of
the people and complete gaps in thats ector.
2. CSS HASS DILTED THE FISCAL TRANSFER SCHEME
CSS acts asn intrusion into the State Lists by the Centre. This is beyond the other
transfer of subject frim State to Consurret list - Eg Education
CSS resource is TAX.
Over the years CEntrall share has fallen and GiA has increased from 41 (11980) to 50%
in 2006. Resource flow from CEntre to State - 7 % of GDP
Compared to this, the quantum of resources going directly to districts and other
implementing agencies is very high at 1.22 per cent of GDP, more than any other head
of grants or transfers, amounting to 37.5 per cent of tax devolution to the states in
2006-07.
CSS has led to dilution of fiscal system.
Normal assistance for state plans, which is devolved according to the Gadgil
formula, is less than 48 per cent of the total state plan size.
Under the present regime, grants have become primarily purpose-specific or tied with a
host of conditionalities imposed by different central ministries, reducing the States and
Panchayats to mere agencies of the central ministries.
In some cases, State burden is being increased unilaterally.
Eg: SSA - initially State share 25% . Later 50%.
The State Governments are not consulted at the stage of conception, design and rule
making. States are therefore compelled to commit resources for straight-jacketed
schemes that do not reflect their priorities or can be effectively implemented, as they
are rigid and out of sync with local realities. Such specificpurpose transfers have tended

to reduce the states to mere implementing agencies with rigid guidelines that deny
location-specificity and local initiative.
Moreover the conditionalities encroach on the autonomy of the States.
A case in point is the JNNURM, which requires the State to reduce Stamp Duty rates
to at most 5 per cent, a rate which can only be prescribed by the Legislative Assembly. -This is intrusion innto the legislative shere y the Executive.
Since 2002-03, a considerable percentage of such transfers are sent directly to
autonomous agencies bypassing the States, despite the fact that in many CSSs the states
too are required to make matching contributions. Local officials tend to ignore the State
Government on these Schemes since they have to coordinate directly with New Delhi
It is imp to conduit transfer strictly through States.

The Centre and states can work out an accountable and speedy mechanism for
fund transfer to district, PRI and other agencies, the federal character of our fiscal
and political economy should not be undermined.
The State needs to intermediate between the local agecies and central authoritses.
Suf=ggestions
An appropriate periodic joint Centre-State review may be worked out.

The mere fact that the Union Government is in a position to supply a greater share of
funds for projects pertaining to social and economic development ought
not to give it a right to dictate terms to States on matters that otherwise fall within the
constitutional domain of States.
It is felt that the Union Government may restrict itself, at the most, to outlining broad
guidelines with respect to the ultimate objective of the programme.
The design and implementation of the specific programmes within the State must be
left to the executive machinery of the concerned State.
Inorder to stop misuse of untied funds, the conditionalties can be kept as effective
safeguard.

RECOMMENDATIONS
1. it is desired that the States should have control on the design and execution of the
schemes.
2. The conditionalities tend to encroach legislative autonomy of States; more so when
transfers are made to local bodies and parastatals.
3. CSS need not be done away but a mechanism needs to be devolved.
4. Periodic review jintly by Centre and State to ensure coordination
5.. provide more untied funds. Some flexinility needs to be provided to accomodate
location specific problems and challenges. Centre needs to bestow gretaer auth and
trust in States and allow democractic and Constitutional processes to ensure greter
acciuntabilit

GOOD GOVERNANCE AND DELIVERY OF PUBLIC SERVICES


Two important Constitutional Goals :- Ensuring good Governance & Acheiving Social
and Economic Justice
To achieve them, 3 approaches are sort:1. EMPOWERING CITIZENS WITH A CORRUPTION FREE CONSTITUTIONAL RIGHT
2. GREATER DECENTRALISATION
3. PREPARATION OF SOCIAL AUDIT
DEFIING Good Governance

Governance has been defined in terms of exercising power for economic and social
development. It is not easy to outline an exhaustive list of ingredients for the term good
governance, but it is acknowledged that at the very least good governance is a term that
relates to a government that is, among other things, democratic, responsive,
accountable and transparent, and which respects and fosters human rights and the rule
of law.
UN:- It is only through Good Governance that one can find solution to Poverty, inequit
and insecurity.

CORRUPTION AND GOOD GOVERNANCE


India has been ramked poorly in Corruption - Corruption perception Index of
Transparency International - 71 of 102 countries.
Impacts Rule of Law
Affects development
Affects economic policies
Affects social policies
Affects eco growth
Affects FDI
Infra, health, education resources are diverted
The development process ought to be based upon principles of transparency in
governance and accountability of the administration. However, due to corruption, there
is inefficiency and inequity in resource allocation. The state will not be able to fulfil its
mandate responsibly; nor is there any scope for achieving social and economic
development.
STRATEGY
Empowering cotizens with a corruption free government.
Corruption can be inculdde under the ambit of HR discourse.
Leads to mass victimisation;
affects RoL, demicractic governance
Considering corruption as HR violation will lead to efforts to contain it.
This is because development of HR law is an essential aspect of IHRLaw and
constituoonal, legal and judicailly recognised rights. It has an international force behind
and hence can be effectively dealt with. Through such enforcement, judicairy can act
more proactively
DECENTRALISATION - TO IMPROVE PUBLIC DELIVERY SERVICES
decentralisation hs the power to act as a counter to the tendency towards cenrtal
absolutism by enabling power sharing and thereby providing for long term stability.
Social and econmmic justice can be achieved thru grater decentralisation on related
subject matters.

GREATER ATTENTION ON TIMELY IMPLEMENTATION OF DPs.


The effective enforcement of the Directive Principles of State Policy is the
Constitutional strategy for promoting good governance and for delivery
of public services.
No methodlogy as such.

One metod could be :- States must be required to frame periodic guidelines on what
steps they will be undertaking to perform their role for the achievement of the
Directive Principles of State Policy. Certain obligations will necessarily require more
Central involvement and others will require less, but the framing of periodic guidelines
will ensure that the issue of Directive Principles is not ignored simply because these are
not enforceable in a court of law.
Periodic Social Audits must be conducted in each State to examine the degree to which
State is oerforming its obligations under the DPSP.
Public Private partnership in Delivery of Public Services

What measures should be taken for the participation of the emerging


private stakeholders in the scheme of governance for promoting the welfare of
the people?
A shift in accountability can give rise to certain objectionsLEGALLY,
:- who has standing to complain?
who is a public auth?
what all are justiciable?
what is the procedure to be followed?
Is judicail review possible to judge the authority?
POLITICALLY
Need to find an appropriate framework federal in nature - for assuring
harmonous CS relations
Currently CS re;lation is badly affected - corruption, CSS, lack of funds, non
cooperation by States etc are the reasons for bad erlations.
Poor state of education.
Poor health infra
In each of these concerns, runs a common thread - the impact of federalism on public
provision in social policy. Does federalism inhibit public provision and retard the
development of the welfare state in the first instance? How does federalism shape the
policy design of social policies, once such policies have been adopted? Does federalism
create obstacles to restructuring and retrenchment, just as it might have originally

inhibited social policy construction? Once social programs have been established, does
federalism create obstacles to the restructuring of such programs and, as such, render
the system impervious to certain types of policy change? These are the questions that
come up again and again in the discourse on good governance.
the question is ultimately one about the structure of cooperative federalism, that, raises
three important questions: (1) What are the respective state and national interests in
particular policy domains, putting aside any potential constitutional impediments to
organizing state and federal activities either separately or jointly? (2) What types of
funding arrangements promote responsible and accountable public spending? (3) What
sort of regime of legal rights and responsibilities is likely to support the programmatic
purposes established either by state or federal legislation?

IDEAS FROM OTHER FED Esp CANADA


Two types of considerations are relevant to knowing where on the
independence/interdependence continuum a program or policy may be. One is the
extent to which there is joint federal-provincial decision-making, implementation or
funding. The other is the extent to which, despite the absence of joint federal-provincial
activity, the actions of one order of government may impact the other and influence its
choices. Where that influence requires the second order of government to make modest
adjustments only to its program, the relationship is more independent than
interdependent. Where the influence effectively forces important changes in the
priorities or structures of the second order of government, the relationship is more
interdependent.
DISENTANGLED FEDERALISM
There is no interdependance and no hieracrhy -in such case the relation is termed
DISENTANLGED.
Neither jurisdiction is de facto subordinate to the other. In a disentangled model of
federalism there is very little interdependence between the two levels of government.
Each level has a clearly
defined constitutional role, and each operates within watertight compartments.
This form worked initially in Canaada Health Care sectr.
because health care was a provincil domain factor.

Here, only the provinces, not the


federal government, may pass laws regarding the creation and
administration of hospitals and mental health facilities.
In response to this, the courts have interpreted the provincial
power over hospitals in a very broad manner, extending provincial legislative authority
to almost all areas of health care delivery. This includes areas such
as health care insurance regulation, the distribution of prescription drugs, and
the training, licencing and terms of employment for health care professionals, such as
dentists, doctors, and nurses. This judicial interpretation has resulted in provincial
dominance in the area of health care, at least with respect to the power to create laws
concerning how health care is delivered to the majority of Canadians.
THE POSITVES
It gives jurisdictional autonomy and stregth for provincila experimentation
without interfernce from the federal govt as each works independenty wthot
interaction.
NEGATIVEs
No interaction and interdependence. cannot frame national policies.
UNILATERAL FEDERALISM
interdependence and the relationship is hierarchical, the relationship is described as
unilateral federalism. The federal government directs provincial policy, usually through
conditional funding.

An instance of this model is the Canada Health Act, 1984 that included a
penalty regime, under which the federal government would hold back funding to those
provinces that failed to meet any of the Acts criteria. Immediately following the Acts
introduction in 1984, the federal government announced it would be applying penalties
to those provinces that permitted user fees and extra-billing (the federal government
later released the money it had held back, but only once the provinces had eliminated
these practices). In the 1990s, the federal government applied the penalties on several
occasions, mostly when provinces permitted the application of user fees in private
medical clinics.
NEGATIVEs

infringes autonomy
POSITIVEs

National policy and no overlap between policies, and economies of scale.


COLLABORATIVE FEDERALISM

there is interdependence and the relationship is non-hierarchical, the relationship is


described as collaborative federalism. Here, the federal and provincial governments
work collaboratively to attain policy goals, and there is no coercion on part of the
federal government.

Definition:A governing arrangement where one or more public agencies directly engage non-state
stakeholders in a collective decision-making process that is formal, consensus-oriented,
and
deliberative and that aims to make or implement public policy or manage
public programs or assets.
a national collaborative governance that is meant to have an impact on the ground
often needs to involve, not only the federal and provincial/territorial governments, and
local governments, but also needs to include non-governmental structures voluntary
sector organizations, professional associations and the like - that are themselves subdivided in national, provincial and local chapters. In other words, the multiple levels of
government are paralleled by multiple levels in the non-governmental sector. Since this
is an area in which both the federal government and provincial/ territorial governments
have a legitimate role, and where the involvement of civil society is needed to ensure
traction at ground level, collaborative initiatives have become a way of doing
business.
ISSUES IN THIS OMODEL
How a number of diverse organizations,
each independent within its own sphere, can manage to co-ordinate their actions in
pursuit of a common goal.
What is the initial impetus that brings them
together, and the common bond that keeps them together?
What structures,
collaborative practices and leadership competencies do they use to achieve coordination and achieve meaningful results?
An example is the Canadian Social Union Framework Agreement. The main
features were the commitment to obtain provincial agreement before introducing new
programs and the agreement on a collaborative mechanism for settling disputes. The
provinces and territories agreed to eliminate residency-based policies that constrained

access to social programs for migrants, and to use funds transferred from the federal
government for agreed upon purposes which included health care policy.
STRENGTH
The major strength of this model is that it allows for national programs while
protecting jurisdictional autonomy.

WEAKNESS
On the other hand, its weaknesses are
that the model has the potential for excluding the public, requires an effective dispute
resolution mechanism and blurs accountabilty.
PPP in delivery and Commission
it is necessary to adopt national measurement standards on performance. Looking at
the way public services are organized in other federal countries, the Commission
strongly recommends the model of collaborative federalism in which there is interdependence but no hierarchy. The process from policy making to performance
assessment is more
collaborative without any coercion on the units from the federal government.
The collaboration extends to non-State stakeholders and through the collective,
transparent, rule-based decision-making processes public assets and services are
managed with maximum efficiency and accountability.
The key element in collaborative federalism is non-hierarchical, non-authoritarian
form of decision-making involving governmental and non-governmental participants
working toward a common objective within a legal framework. This Commission would
recommend such a model for the promotion of good
governance.
CONCLUSION AND RECOMMENDATIONS
(1) Ensuring Efficiency and Accountability in Delivery of Public Services 7.7.01 Among
the many strategies for ensuring efficiency and accountability in
the delivery of public services are two Constitutionally mandated. They are empowering
citizens and decentralizing administration. Though much ground is covered in these
directions, there are many possibilities for greater innovation and experimentation.
Volume IV of the Report has made detailed recommendations on decentralized
governance. [Para 7.3]

7.7.02 The need for citizen empowerment is increasingly being acknowledged by


legislations like the Right to Information Act, the National Rural Employment Guarantee
Act, the Lok Ayukta Act etc. However, good governance is a far cry because of the wide
prevalence of corruption and the poor administration of criminal justice. Corruption
retards economic growth and imposes heavy burden on the poorer sections of the
people. States cannot achieve the goals of development and social justice without
ensuring corruption-free governance. A rights-based approach is the Constitutional way
to fight corruption. The corruption problem, when framed as a human rights issue, can
enable the judiciary to enforce certain rights for the citizenry, demand a transparent
and accountable system of governance and help establish a basis to monitor the process.
The inclusion of a fundamental right to corruption-free delivery of public services will
enable citizens to directly challenge cases of corruption as Constitutional violations and
to seek Constitutional remedies. The Commission is inclined to recommend such an
approach as the problem has assumed serious proportions warranting drastic remedies.
2. Time Bound Implementation of DPs thru decentralised Governanace
The effective implementation of all the policies enumerated in the Constitution and
declared fundamental in governance within an agreed time-frame is another strategy to
deliver good governance and ensure human development. There is no effective method
to ensure compliance of governments in this regard and therefore publicly announced
Guidelines are required to be developed by the Centre in consultation with states. This
will demand effective devolution of powers and functions to the local governments as
well. Coupled with social audit of implementation of Guidelines through an appropriate
mechanism, decentralized system of governance can bring about the reform needed for
effective delivery of essential public services.
(3) Public-Private Partnership in Delivery of Public Services: 7.7.04 Private
participation in public administration is being increasingly solicited
in a variety of fields like education, health etc. for a variety of reasons. However, an
appropriate regulatory framework to ensure standards and accountability in the
delivery of public services is still not available. The extension of the concept of State to
private entities is not always a viable option though it is being used by Courts to extract
accountability. The Commission would recommend an institutional design to be
developed keeping in view the demands of rule of law, human rights and good
governance. There are stray examples of State initiatives which seem to be delivering
results in certain sectors. These are to be collected, studied and put on the public
domain for adoption elsewhere.

7.7.05 As a corollary to the evolution of best practices in public-private partnership in


the delivery of public services, it is necessary to adopt national measurement standards
on performance. Looking at the way public services are organized in other federal
countries, the Commission strongly recommends the model of collaborative
federalism in which there is inter-dependence but no hierarchy. The process from

policy making to performance assessment is more collaborative without any coercion


on the units from the federal government. The collaboration extends to non-State
stakeholders and through the collective, transparent, rule-based decision making
processes public assets and services are managed with maximum efficiency and
accountability. The key element in collaborative federalism is non-hierarchical, nonauthoritarian form of decision-making involving governmental and non-governmental
participants working toward a common objective within a legal framework. This
Commission would recommend such a model for the promotion of good governance.
7.7.06 The Commission would recommend a National Standards Organization for
working out the standards for social sectors on the lines of the Bureau of Indian
Standards for manufacturing sector.