(Sarkaria Commission) reiterated the paramountcy of the Centre terming the structure to be

more unitary than federal

As observed by the Supreme Court (State of West Bengal v. Union of India AIR 1963 S.C.
1241) "Our Constitution adopted a federal structure with a strong bias towards the Centre,
and that under such a structure, while the Centre remains strong to prevent the
development of fissiparous tendencies, the States are made practically autonomous in
ordinary times within the spheres allotted to them"
Sarkaria

What p says
Yes, we agree. We need consultative process on a continuing basis to frame and
also to implement laws
How? Inter state councils should do the auditing role
Other mechanism- committee of state ministers to thrash out contentious issues
Proceedings of the meetings of council/committee should be made available to the
parliament while introducing the bill on concurrent list
Greater flexibility to States in relation to subjects in the State List and
"transferreditems" in the Concurrent List is the key for better Centre-State relations
Larger role for Inter state councils to thrash out differences wrt matters of policy,
implementation etc.
Analyse whether transfer of subjects from state list have yielded the desired benefits.
If not, then transfer it back.

Sarkaria about RS seats- NO to equal representation of States. Its not exactly based on
the federal principles as that role is confined to only Articles 249 and 312. Redesign
procedure so that RSs special role of representing federal structure is strengthened.
Article 201- 6 months time limit for the Pres to assent or withhold assent. He can consult
SC under Art 143 if he is confused. (This will reduce allegations of biasness.)
Article 253- must be examined in detail coz the problem is going to increase further in the
future

State cant violate basic structure of the Constitution while giving effect to international
treaties.

Parls role- composition isnt right, will delay the process, not practical (Senate refused to
ratify Treaty of Versailles)
NCRWC- make law under Entry 14 of List I to regulate Execs treaty making power + form
Parl Committee who would review treaties that are proposed/to be ratified within 4 weeks
whether it should be referred to Parl or not (should be a joint committee of both houses and
comprise members from all parties)+ classification of types of treaties which require
ratification of parl, which dont require ratification etc.
Canada- no need for Parl approval but the process in undertaken nevertheless
What P says
Make law on Entry 14 coz Execs power should not be absolute.
Relating to dence, IR etc- refer to Parl committee before it is ratified or have prior
discussion

If something affects states, Empowered Committee of State Ministers should take up

the matter and study it
If implement requires states help states should be given adequate compensation for
it according to agreed principles (can be referred to by the Finance Commission)

Article 163 does not give the Governor a general discretionary power to act against or
without the advice of his Council of Ministers. The area for the exercise of his discretion is
limited. Even this limited area, his choice of action should not be arbitrary or fanciful. It must
be a choice dictated by reason, actuated by good faith and tempered by caution.

Sarkaria Commission

P says
Gov who is to reprimanded/removed must be given an opportunity to defend his
position
5 year tenure
Consultation with CM before appointment (S also recommended)
Amend article 157 to incorporate S recos regarding qualifications
Delete during the pleasure of the President phrase
Impeachment of gov on the lines of that of the Pres for violations of principles laid
down in the Constitution or for not discharging his duties as gov

NCRWC- In case of such termination or resignation by the Governor, the Government should
lay before both the Houses of Parliament a statement explaining the circumstances leading
to such removal or resignation, as the case may be.
S and P- G should not be eligible for any other appointment or office of profit under State or
Central govt. Should be a CAA.
NCRWC
Time limit (of say 4 months) to assent or reserve
No more power to withhold assent
Pres should take action in 3 months or seek SCs opinion (Kerala Education Bill 1958)
Pres should grant assent once bill is passed again
Money bill should not be reserved by gov for assent of pres
Chuck article 200; gov should reserve bill only when constitutionally required to do so
P says the same- time limit for gov and pres + must sign it if passed again
Formation of govt

Need CAA to lay down specific guidelines wrt formation of govt otherwise it will be prone to
abuse.
S- majority test on the floor of the House. If CM refuses to do so gov should summon House
himself within reasonable time (30 days or so).
If CM asks to prorogue House when he is about to face a NCM then Gov doesnt have to
listen to him.

IF CM with majority asks him to dissolve House hes bound to listen.

The Commission is also of the view that Governor should not be assigned functions
casually under any Statute. His role should be confined to the Constitutional provisions
only. (Eg- appointing Chancellors)

While sending fortnightly reports to the Pres, CM should be taken into confidence unless
there are compelling reasons to not do so.
The area for the exercise of discretion is limited and even in this limited area, his choice of
action should not be nor appear to be arbitrary or fanciful. It must be a choice dictated by
reason, activated by good faith and tempered by caution.

Article 355 framework law

Paramount responsibility should be with state govt to deal with separatist violence,
communal violence or natural or man made disasters. (Like in communal violence bill
state can declare area as disturbed)
Union should intervene only when internal disturbance or external aggression has
occurred to an extent that State is unable to do so. Need to objectively define duty of
the states like in SDMA.
Written intimation before intervention asking the details of measures taken, preferred
time limit and also asking whether state needs help. States should be given
reasonable time period.
Once certain defined conditions are fulfilled Union should deploy its armed forces in
aid of local admin even if state refuses the aid

Importance of objectivity- parameters (injury tolls, time limit, death etc) should be
defined such that arbitrariness is avoided
Territory- intervention should be confined to said territory and union need not take
over admin of the entire state as long as there is no failure of const. machinery
Must withdraw once it is contained
If state requests union should mandatorily provide armed forces provided state
requests(no mechanisms right now). Would be under union control though.
Some urgent cases would require intervention wherein sufficient warning cant be
given, such cases should be explicitly mentioned in the Act.
Should resort to 356 only if union cant still act under legislations made under 355
Time limits for such interventions which can only be extended by Parl

^ on the lines of Communal violence bill and Disaster Management Act

Article 256 and 257- makes sense especially in view of insurgency, communal
violence etc.

The Commission is of the view that healthy conventions respecting the autonomy of
states and restrained use of the power on behalf of the Union can go a long way to
address the concern expressed by States in this regard.

257(3)- executive power of the Union shall also extend to the giving of directions to a
State as to the measures to be taken for the protection of Union property declared by
the Union Government to be of national importance. (nuclear installations, dams etc)

Should enhance capacity of inter state councils to deal with 263(a) (b) (c) stuff;
o

they should have expert advisory bodies or adv tribunals with quasi judicial
authority to give recos to the council if and when needed.

Should make it a specialized forum to deal with inter govtal relations

according to federal principles and const good practices

Should have sufficient resources to engage civil society

Should meet regularly with proper agenda, proper position papers etc

Technical and management expertise to deal with issues (experts from fields
of law, management etc)

Professional secretariat+ officers on deputation

Zonal councils should meet at least twice year to ensure max coordination and
harmonization of actions and policies
Institutionalize GST type Empowered Committee of Finance Ministers to wrt fiscal
stuff
Forum of CMs chaired by one of them to coordinate wrt energy, food, education, envt
and health; should make recos to NDC etc (other feds like Canada, Australia and USA
have such forums)
AIS
o Create health, education, engineering and judiciary
o Should be integrated in the context of 3rd tier of PRIs and ULBs
o Encadrement of state and local officers into AIS through clear demarcation of
criteria, performance appraisal, career development and professionalization

Equal representation for States in RS since you already have LS which is based on population
plus thats how it works in US, Canada, etc.
Hasnt been performing its federal function coz
1. Increased centralization tendencies post independence
2. Political parties in RS so political interests dictate voting and not interests of states +
difficulty in reconciling interests of states, union and also presence of regional parties
3. Larger states have a larger share therefore not true federalism. (249, 312, 368 stuff
can be passed if UP, Bihar, MP etc agree and majority of the states disagree)
Role of RS according to CA debates
1. House of elders (rough and tumble of pol)
2. Enabling states to give effective expression to their view points
3. Some degree of continuity in policies underlying legislation
4. To coordinate with LS with safeguards for speedy resolution of any conflicts btw the 2
houses
S said Unlike US, states werent independent entities having pre existing rights apart from
the Constitution
Difference in area and population of constituent states
Presence of nominal members- so not technically a federal chamber
So its primary role is that of a second chamber.

Equal rep isnt enough coz theyll continue to vote along party lines (and also more number
of parties and coalitions) so devise procedural safeguards such as setting up of a special
committees reflecting cross sections of the House (eg one for compensating mineral rich
states) + allowing free and frank decisions + consensus and not voting wrt 249 and 312
P- S doesnt make sense. Equal rep FTW.
RS amendment severed territorial nexus btw electors and the State so he doesnt have any
interest in affairs of the state. (Manmohan Singh and Assam).KuldeepNayarjudgement is
wrong.

TADA, POTA etc- increasing encroachment. (POTA defeated in RS but passed through joint
session)
A large number of regulatory bodies (UGC, AICTE, NCERT, ICSSR, ICAR etc.) have been
established by the Centre under Entries 25 of List III and 66 of List I occupying the field
substantially. They have
had a large impact on Centre-State relations as the ultimate control over these matters and
authorities vest in the Central Government. For example, no State can make a law on any
matter which is inconsistent with the AICTE Act. In effect it restricts Stategovernments'
powers on technical education and is substantially curtailed by the Centralenactment.
NREGA- The Central Employment Guarantee Council has the power to give directions to the
State Governments for effective implementation of the Act. It also has the power to cause an
investigation if it receives any complaint regarding utilization of funds in respect of any
Scheme and can also order stoppage of release of funds to the scheme and institute
appropriate remedial measures for its proper implementation within a reasonable period of
time.

One other factor need to be noted in the context of Indian federal practice. This is the
fragmentation of political parties and the emergence of alliance/coalitiongovernment both at
the Centre and in the States - and the coalitions are of different types.
Biggest problem- undermines the authority of the PM, reduces collective cohesion of the
Cabinet, weakens responsibility to Parl.

Finance
All future central legislations involving states involvement should provide for cost
sharing (RTE provides for it)
In case states have to bear additional expenditure liabilities for implementing central
legislations they have to be compensated for it
Royalty rates on major minerals should be revised every 3 years
Current ceiling on profession tax should be done away with

no one size fits all FRBM acts for states. Need state specific targets. Must ensure that
social sector expenditure doesnt decrease to adhere to FRBM regulations

General view

Routes for religious procession, places earmarked for religious functions by

communities or love affairs btw boys and girls

Local police- They know the terrain and the language well. Their partisan attitude
creates problems though. A tough law on which imposes sanctions on the area head
will do the job. The law should also punish those who use religion to foment violence
and for political gains, according to Liberhan Commission.

NIC cant do much. Need to spread education and awareness. LC said that NIC should
be given statutory status and should involve religious leaders from different
communities.

Role of media- should have strict guidelines/code of conduct; self regulation; state
govt should make laws (visual media needs to be shifted to concurrent list then). But
media does play a very crucial role- educative and entertainment stuff which keeps
ppl busy from indulging in violence. District officials should disseminate info because
media are a bunch of idiots.

Primary responsibility for communal violence should remain with the law and order
machinery of the state govt. Centre should give more intelligence, technical and
financial support. Suomotu deployment followed by post facto consent in case it gets
really bad. Institutionalization of the Empowered Committee of HMs to facilitate
planning and controlled action for post event facilitations.

P says NIC should meet more often (twice a year); HM should be DCM; standing committee
of NIC should be set up with MoS at MHA as CM
Need code of ethics for media; should consult PCI before formulating it
If violence is likely to escalate the Centre should deploy para military forces
Model anti conversion law
Central Law Enforcement Agency
Issue- several crimes with inter state ramifications
Views
Yes, a central agency would be nice. But better thing to do would be to strengthen
the police machinery in the states by providing equipment, technology and training
programmes.
Add more crimes to the list handled by the NIA
Add terrorism, production and distribution of fake currency notes, espionage, arms
smuggling, organized crime, hijacking and assassination attempts, narco and bio
terrorism and narco terrorism as crimes threatening national or internal security
Task force sayso NIA should undertake measures for pre emption, prevention, control and
detection of crimes mentioned in the NIA legislation.
o It shouldnt have to investigate crimes ONLY on the Centres direction. Too
much delay. It weakens both the agency and the local agency

Should be given overall responsibility and authority to deal with counter

terrorism and all its aspects. If thats not possible, it should be given
concurrent jurisdiction in the admin of UAPA, 2008.
ARC supports allowing confessions made by accused as evidence (with safeguards of
course). Issue is that we need to undertake police reforms first to ensure credibility of
the system before undertaking such a move.
Need to include more crimes in the scheduled list of NIA which have inter state
ramifications such as bio terrorism, cyber etc.
HM says NATGRID, RAW etc should function under NCTC which will function as
coordinating agency to collect and disseminate intell. CM of NCTC should function
under HM.
o

What p says
Include more crimes in NIA Act. Burden of proving that crime committed is not
terrorism related will be solely with the accused.
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.
Should be adequately empowered and also accountable for internal security. Role of
the states should also be defined clearly
Consensus needs to be arrived at regarding confessions made before the police.
Need joint consultative machineries.

Suomotu deployment of armed forces

Entry 2A of the Union List.
Suomotu deployment of CRPF has happened only thrice post Independence (once in Kerala
and twice in WB)
Views
TN says 355 cant be read without state requesting for it. But TN says, for communal
violence, centre should deploy forces but whether it should stay beyond one week
should be ratified by the state assembly.
S says- yes, we need it and constitution provides for it but it is not politically proper.
We need coordinated action.
TFo yes, we need it. Persuasion should be used but if state doesnt yield, no option
then. If state doesnt listen to directives issued then impose 356.
o sec 20 of CrPC should be amended to provide for vesting powers of DM in
functionary designated by the Central Govt in case 355 is applied in a certain
area
o executive order wrt 355 laying down situations that may warrant the
invocation of the article
o when? On pres satisfaction or when governor sends a report

whatP says suomotu deployment is constitutional. Period.

Localized emergency for a minimum period of time (say for a month or so)
and extendable up to a max of 3 months (US and Australia have similar
provisions)
have some kind of Parl approval like in the case of 356 just to make the states
happy
amend sec 20 of cr pc so that in case of ^ authority can be vested in someone
designated by centre
355 intervention shld happen only rarely
Strengthen state police
THE MIGRATION ISSUES
Regarding reservation for domiciled candidates- The recipient States of the migrant
population will also do well to remember that if some regions/States stay backward, they will
demand higher allocation of funds from Government of India under the Plan and Non-plan
schemes and willy-nilly such diversion may have to be at the cost of developed States and
made to an extent from the National revenue generated and contributed by the developed
States themselves.
What to do NIC should do something
Communal violence bill
Learn language, culture etc
Pol parties should encourage them
Naxalism
If talks dont work go for track II mechanism. Shouldnt be headed by a single interlocutor
but by an interlocution team of 3 to 4 guys who are intell experts and folks perceived to be
Naxal sympathizers.They should sensitize Naxal leaders and cadres of the govt initiatives
such as R and R policy 2007, land reforms, forest rights etc.
North East
Locate some key institutions of the centre in the region itself so that socio eco and
infra dvlpt issues are attended to at faster pace
Create Regional Infra Dvpt Authority. Should focus on dvlpt of local human resources
and give guidance to states. It should act as an advisory body so that projects are
completed on time.
Need for nearly autonomous planning body
Strengthen district and regional councils (schedule VI)
NERC and also Inter state councils too
NE Boundary commission to take care of state boundary issues such as Assam and
Nagaland
Introduction of work permit system as practiced in some other countries
Creation of a regional security authority to coordinate various internal security
related issues and also ensure regular inter stateintell sharing. Should not interfere
with the functioning of para military and state forces but should act as a facilitator for

providing guidance and ensure coordination among army, para military and state
forces
States reps should also be involved in negotiations with the militant outfits
Repeal AFSPA and incorporate stuff in UAPA (ARC said the same thing too)
Insider outsider syndrome in the hilly parts- NIC, National Foundation for Communal
Harmony (NFCH) and NGOs need to do something about it. Create a sub committee
in NIC to deal with NE.

J and K
Tourism
Infra dvlp coz connectivity is imp
Need more national print media
Pvt + psu invst
NIC shld do something
Criminal Justice System
Issues- low conviction rate, poor tech know how
Pre emption and preventions shld be the key
NCTC scenes
Professionalism
Indpt directorates of prosecution
Tech know how
What to do
Standing commission on criminal justice and internal security with experts from field
of law, criminology, PA, finance, defence services and management with a 3 year
term (on the lines of the law commission)
Setting up of Criminal Justice Department under a secy at state and union levels to
coordinate various aspects - funding, prison reforms, prosecution etc. Should report
to HM. (whyo Policing including crime prevention measures, traffic control, forensic
laboratories and investigation of
o crimes are usually with the Home Ministry.
o Prosecution agency and the criminal courts are looked after by the Law
Ministry.
o Prisons, Correctional institutions including juvenile justice are under the
Ministry of Social Welfare.
o MoF- customs control, narcotics etc.)
Bureau of Crime prevention, stats and Criminal Justice planning- Expert law
enforcement group from states and centre with responsibility of crisis mapping,
community involvement, collecting and collating criminal stats and criminal justice
planning at state, regional and national levels
Public policy, governance and development

Central and state govts should be asked to give to Parl and state
assemblies a status report on the implementation of DPSP every 2 years.
Should be enriched periodically.
Good governance should be a DPSP
Citizens right to a corruption free govtshld be acknowledges as part of adv law

Coalition politics
We need to understand that it is a product of conscious electoral choices made by the
people and it would be presumptuous to say that there is no logic behind it.
It means that the existing parties suck and havent addressed the needs of certain
sections and therefore it makes govt more accountable
Regional and sectarian identities are not a threat to our nation because we need to
accept that our nation is not homogenous and that it is diverse.
Centre shouldnt by pass state govts while allocation funds to local bodies
1. Anomalous situation coz states are responsible for it constitutionally and therefore
wont be able to function effectively
2. Sometimes central govt stops the funding all of a sudden and this has grave
consequences for public

RTE scenes

Issues- finance (dependent on centre), grievance redressal, accountability issues

No Child Left Behind Act in the USA- Fed gave funds whereas local govt was asked to
implement. Issue of dual accountability- decoupling education policy responsibility and
funding authority.

Unilateral Federalism- Canada Health Act. Fed would hold back funds from provinces
if they dont fulfill obligations under the Act (if they charge user fees and over bill etc)
Collaborative- inter dependent and non hierarchical
a. Australia- coordination; harmonization; financial assistance; ministerial
assistance; inter govtal agreements

Cooperative-German style: fed does not deliver health services but provides the
regulatory framework and policy settings within which local govt and pvt sector
provide health care (insurance, funding, quality control etc)
Non state actors and public service delivery
Need for comprehensive national policy
Fair selection process, MoU, enough checks and balances; must assume the character
of the state and must be bound to human rights and DPSP. Need amendment in part
IV to include them in the definition of state
Periodic monitoring and evaluation to check undue political interference and
influence
What to do?
Draft national policy
MoU which spells out obligations and duties towards citizens and also extent of
liability for breach of duty. This will ensure adequate checks and balances
National legislation prescribing penalties for defaults
Provisions of Administrative Procedure Act, 1946 should be extended to public
contracting out process
Amend definition of state under 12 to make them constitutionally liable under DPSP
wrt performance under PPPs
Independent regulator who has requisite authority to oversee state regulatory
agencies set up in states for education, health etc
Periodic monitoring and evaluation mechanism. Regulatory agency should be allowed
to participate through comments on proposed contractual terms
System of accreditation to ensure credibility of non state actors
Strengthen PRIs so that there is effective coordination and consultation while
designing, implementing and monitoring PPPs
Public Policy Dispute Resolution Mechanism system is required

ENVIRONMENT, NATURAL RESOURCE MANAGEMENT etc

Issue- If left to the State govts they wont pay much attention bcoz they are more concerned
about livelihood issues. Although there is no empirical evidence to suggest that the National
govt can do a better job.
Stuff

What

Pre construction environmental clearances are cool and states should have the
responsibility for it but post construction enforcements are not that great.
to do
Greater devolution of powers through stronger constitutional statements,
incorporating environment specific articles in the text of the constitution regarding
environment and conferring the states with the power to legislate
SA, Venezuelan constitutions have all of the ^ stuff in their constitution.
We need a separate entry (environment, ecology and climate change )specifically
dealing with environment so that Union is empowered to legislate on these matters
quickly and through direct means (The Air Act was enacted through Art 253 and the
Water Act through Art 252). Will help give a national focus and policy direction. Wont
hinder States ability to administer and innovate coz theyll still be having that under
separate items relating to natural resources

Water
Need to be viewed from 2 view points- equitable allocation and also as an important
component of the eco system
Constitution Entry 56 of List I of Regulation and development of inter-State riversand river
valleys to the extent to which such regulation and development under the control of
the Union is declared by Parliament by law to be expedient in the public interest,
andArticle 262
Entry 17 in List II- Water, that is to say, water supplies, irrigation and canals,
drainage and embankments, water storage, and water power subject to the
provisions of entry 56 of List I.
Items 3, 5, 8, 11, 13, 29- minor irrigation, water management and watershed
development, water supply for domestic, protection of the environment and
promotion of ecological aspects, industrial and, commercial purposes, Drinking
Water, waterways, maintenance of community assets
How so far
Centre can manage any inter state river basin through specific legislation or by
setting up a board under River Boards Act 1956. Hasnt done it to constitute a
specific river basin organization. Reason- reluctance of states. (Ganga Basin Authority
set up under Envt Protection Act.)
MC Mehta case- SC asked govt to set up an authority to deal with indiscriminate
extraction of groundwater. Central Groundwater Authority was set up which prepared
model bills but whose legitimacy was challenged under EPA.
Expansion of central jurisdiction coz EPA encated under 253
SC directive regarding inter linking of rivers
National Water policy in 2002
MoUs with neighbouring countries regarding water and info sharing
Issues- 2008 floods in Bihar was coz of breach of embankments in Nepal + Kashmir
depends on IWT btw Pak and India
States have enacted laws on surface and groundwater- irrigation acts which regulate
the use and development surface water
DPC and MPC- sharing of water and other natural resources
Many govt schemes- RG Drinking water scheme etc
State acts which enable formation of WUAs.
o Formed and controlled by users of water who pay for the services offered by
the Associations.
o Not commercial but need to be self sustaining
o Regulate and monitor water distribution among members, collect service
charges and maintain and repair canal systems
o State govts regulate their command area
Issues with Water User Associations
1. WUAs which are male dominated. Membership rules which provide for land holders or
heads of households preclude women from becoming members.

2. Their relationship with PRIs is not clear. The PRIs by their constitution are more
inclusive (with mandatory inclusion of women, SCs and STs) whereas WUAs represent
only landholder interests.
the Delhi Jal Board project has been the most controversial water privatization project that
was withdrawn after a massive backlash against the project. The main allegation was that
the World Bank had engaged in arm-twisting tactics to pressurize the State Government into
awarding the contract for consultation to a particular agency. When an application was filed
under the Right to Information Act, 2005 to know the terms of the privatization contract,
it was revealed that the terms provided for high profits to the private companies, to
whom the management of water would be handed over, that would have pushed up the
water bills significantly.
Stuff

Amended act says that tribunals should give decision in 3 years (extendable by 2
years though). Time limit of one year for clarificatory reference.
o Lack of finality
o Expertise in question
o Union should be allowed to take suomotu action to set them up
o A permanent tribunal makes more sense
o Need technical staff to give data and the like
o An exec agency (ISC type) wpuld make more sense
Inter state river basins- need an integrated approach, inter basin mobility and
possibly a water grid
Pollution (law is fine but poor implementation)
Floods and drainage

What to do
Legalistic approach is not sufficient coz it has many dimensions- eco, social and
political
Nationalization of water resources is a stupid thing to do.
National consensus on water policy to guide legislations of both centre and state
National Water Resources Council (already in existence)- enable C-S coordination and
policy formulation and also btw various Ministries (Rural dvlpt, shipping, power, MoEF,
etc). This council needs expert technical help. Must ensure that legislations are in line
with the policy.
SC judgements regarding the water are based on public trust concept.
Concept of River Basin Authority has worked in Australia, Canada etc. Constitute inter
state river basing organizations wholl focus on allocations and engineering (Not on
schemes.)
Local bodies should focus on watershed management, water user associations and
joint management
Water Disputes
Inter State Water Disputes Act, 1956

1. Long delays and uncertain time frame- Ravi Beas case hasnt been resolved since
1987 although tribunal gave report in 1987. Cauvery Dispute is still not resolved.
(Other stuff mentioned up)
2. Issue of finality- Constitutional questions are raised so in the end it goes to SC
through SLP and other stuff. TN wrt Cauvery. Therefore 2000 amendment which says
that decree is final is ineffective.
3. States are not being rational and are found to resist the tribunal awards. Dont like to
compromise
4. Water dispute is only one of the many bones of contention btw the parties thereby
complicating matters. Therefore centre should exert influence as in case of Narmada
Dispute.
5. Multi dimensional nature of the problem makes it impossible for tribunals decisions
to be final as aggrieved parties approach SC on the grounds of violation of Art 21 and
the like.
What to do?
Make
o
o
o
o
o

tribunals more effective by (Krishna Tribunal style)

Ensuring that discussions are mainly on technical issues
Should deviate from format of judicial hearings
Issues need to be considered in the light of practical considerations
More participatory and conciliatory approach and not adversorial
Deal with tech and legal stuff separately

Best solution- Link tribunals with inter state river boards.

Groundwater- Must consider fluvial part of groundwater as part of the resources of a basin.
In that case, there will be multiple tribunals further complicating matters. Even in the US, SC
asking states to solve disputes among themselves.
So what to do?

Link tribunals with inter state river boards.

In case however if a dispute does arise it would happen (a) over waters in which a River
Board
has been constituted or (b) where it has not.
1. In the former case the initiating party must indicate the efforts it has made in
resolving the matter before the Board and the Boards findings (if any) on the
contentious issues. The Government of India should necessarily be made a party and
it must indicate the stand it has taken in the Board, before the Tribunal. This would
encourage resolution of disputes within the Board and in the event the matter does
go before a Tribunal then the Tribunal would have before it the records and
deliberations before the Board.
2. In case a Board has not been set up it should be incumbent on the part of the
Government of India to indicate the reasons why a particular Board has not been set
up, and in case the process is on, Tribunals should have the option of waiting till the
issues have been subjected to deliberations in such Boards.

Other

stuff
Multidisciplinary body presided over by a Judge.
Should follow a more participatory and conciliatory approach
Time limit for clarificatory or supplementary appeals
Appeals to SC should be prescribed under the statute
Permanent tribunals

issues

Union has adopted a minimalist approach and has not been able to play a decisive
role

time lost in delays due to wrangling both before and during tribunal proceedings is
very costly in terms of loss of production, loss of farmers' income growth and rising
cost of constructing irrigation systems

states are increasingly becoming resistant to comply with awards of tribunals in spite
of express provisions in the Constitution regarding the finality of such awards

a long time is taken to constitute tribunals and giving awards and in pronouncements
of interim awards that have led to further complications

problems of interpretation and implementation of Awards and NO mechanism to

enforce the binding nature of such awards

although are courts are barred from reviewing the Awards of the tribunals matters are
still taken to the SC wrt questions on sharing during years of poor rainfall,
environmental aspects, displacement and rehab

NCRWC

Forests

1865 Forest Act- used principle of nobidys goods in proclaiming the right of
sovereignty over unsurveyed and undemarcated lands. The objective was to enable
the govt to constitute Forest Estates under a Forest Dept after settling rights and
privileges.
1894 National Forest Policy- objective of forest admin was for benefit of public.
Classified forests into 4 types- for preservation, for supply of valuable timbers for
commercial purposes, minor forests (fuel and fodder for local consumption) and
pasture lands (werent actually forests)
Indian Forest Act, 1927- 3 types; Reserved, Village and Protected. Based on the
objectives of management and the extent of rights and concessions granted to
people and local communities.
1952 National Forest Policy: should maintain one third of its total land area under
forests; 60% of land area in hills, 20% in plains. Expanded the meaning of forests by
adding a spatial connotation.
1988 National Forest Policy: existing forest and forestland ought to be fully
protected; diversion of forestland for any non forest purpose should be subject to the
most careful examinations by specialists from standpoint of social and envtal costs
and benefits; integration of tribal ppl with regeneration, plantation and harvesting of
forests so as to provide them with gainful employment
National Forest Commission 2006: made no changes to 1988 policy;
o major task was to rehabilitate degraded forests and increase productivity,
o augment contribution of forests towards poverty alleviation of ppl living in and
around forests;

strove to strike a balance btw role of forests as part of the eco system and as
provider of timber and non timber produce

issues
mis classification of diverse kinds of lands as forests without following due process of
law- common lands, wastelands etc are being converted into forests
coz of the compensatory afforestation scheme, the already depleted common lands
available to villages are being notified as reserved and protected. Major issue in
the NE. No say for villagers and those whose common lands are allocated under
compensatory afforestation prog
schedule 5 and 6 areas conditions are messed up as nomadic and other communities
rights are not being respected increasing alienation and marginalization
local folks not neing involved- JFM plans made to conform to deptal working plans
forest dept unilaterally interprets PESA so GS are not getting the benefits
displacement of ppl from PAs
States
Compensatory mechanisms for eco system preservation- UK, HP, NE states etc have
large green cover so they need to be compensated for not having arable land for agri
and grazing. It should also reach local communities and should be compensated coz
they lose out on infra and opportunity cost (ban on felling of trees timber etc)
the compensatory mechanism should cater to
o price to be paid for maintenance of the eco-system;
o for loss of revenues arising out of non-exploitation of forest resources;
o for investment in alternate, sustainable development models to provide a
standardof living and employment at par with the rest of the country; and
o for appropriate rehabilitation packages for those displaced from their placesof
residence, for the greater good of maintenance of the ecology and
biodiversity.
Can be in monetary terms and also in investment in sustainable development
mechanisms. (FC has added forest cover in its devolution formula. Good step.)
Other ways- Ukhand way (valuation of ecosystem services) and REDD mechanism
Need to figure out institutional mechanism (ISC type). FC isnt adequate as it involves
dvlptexp and sharing of costs by non forest states and not just resource transfer.
Minerals
Issue- value addition takes place near cities where there is infra and demand; capital
intensive and therefore not many jobs are created; sub surface mining creates jobs but it
results in occupational ailments
Issues
States want a more equitable distribution of resource rents, greater say in mining
policy, fixation or royalties and rents
envtal degradation, unscientific closure of mines, burden on local authorities,
providing alternate jobs to folks
Constitution
Entry 23 of List II State List of the Seventh Schedule confers powers on the States
to regulate mines and mineral development subject to the provisions of List I.

Entry 54 of List I Union List, provides similarly for regulation of mines and mineral
development to the extent to which such regulation and development under the
control of the Union is declared by Parliament by law to be expedient in the public
interest.

Mines and Minerals (Development and Regulation) Act, 1957

Issue

lays down the principles governing reconnaissance, prospecting and mining

operations.
introduces the concept of minor minerals.
confers rule making power on the Central Government for the grant of
reconnaissance permits, prospecting licences and mining leases.
It makes it mandatory for the State Government to obtain the previous approval of
the Central Government before any reconnaissance permit, prospecting licence or
mining lease is given in
respect of minerals specified in the First Schedule to the Act.
Provisions relating to restrictions on reconnaissance, prospecting and mining;
payment of royalties and dead rents etc.) do not apply to minor minerals.
State Government has the power to make rules for regulating the grant of quarry
leases, mining leases or other mineral concessions in respect of minor minerals.
with ^
Encroaching state list- s also said so
Does it affect states ability to impose cesses and surcharges- S said tax is still
imposed by states but for uniformity, dvlpt of industry and also to reduce volatility
centre should levy royalty and the like and states shldnt levy cesses and surcharge
as it distorts pricing. Revise royalty every 2 years.
Centre doesnt share export duty also

Therefore the states need to compensated for envtal degradation, infra dvlpt and upkeep,
health and safety, rehab and resettlement, pollution, skill dvlpt, assist local bodies to
shoulder addtl responsibilities.
Give them higher royalty share and also revise royalty every 3 years or so and compensate
them for delay.
How to determine compensation? Same mechanism as stated in forests.

INFRASTRUCTURE

Just how there are compensatory afforestation programmes, in case agri land is
diverted funds should be made available to increase agri productivity in other areas
through creation of Agri Land Dvlpt Funds

Central Government Ministries that decide on matters affecting States might do so

after consulting the concerned States, for example, in deciding the fixed and variable
components in tariffs for UMPPs.
Regulatory Commissions with the responsibility for setting norms-for example, CERC
determining escalations for specific items in UMPP tariffs- could ensure State

government opinions are taken into consideration. In the case of the SardarSarovar
Project, the Supreme Court had set up a
Grievance Redressal Authority which helped in speedy decision. This model might be
used in all Mega Projects.
Even though the NHAI compensates the States in full for the replacement cost of
utilities, the process of shifting them takes a long time. Sometimes States demand
replacement cost of upgraded facilities.
There are a host of post construction issues. These are issues relating to the
management, control and operation-maintenance of the highways and affect the
user experience much more than the surface of the highway. Issues like unchecked
ribbon development, uncontrolled access to highways, encroachment and illegal
parking on highways, unauthorized state check-posts on national highways,
overloading, absence of road safety measures, absence of advance passenger
information system and advance traffic management system destroy all good work
that might have been done in constructing the highway.
In the case of the Dedicated Freight Corridor railways are going parallel to existing
lines to save on land acquisition. Gujarat has different views on the matter.
Connectivity is an issue especially for new airports, sea-ports and SEZs. Proximate
connectivity is the responsibility of the Port Authority. Hinterland connectivity is the
responsibility of the States. This hinterland could extend to more than one State.
There is lack of policy for connectivity in the case of minor ports.
Standards and regulations for coastal shipping and for inland water transport must be
combined so that there is scope for seamless movement between the two.
The distinction between major and non-major ports appears arbitrary as some minor
ports are bigger than major ports.

ISC could play a major role when it comes to projects that affect more than one state.