CENTRE-STATE RELATIONS
IN THE SEVENTIES *
SHRI G. S. PATHAK
Vice-President of
For
several years past the subject of Centre-State relationship has been engaging
the earnest attention of jurists, legislators, political scientists and a
number of organisations, notably the Institute of
Constitutional and Parliamentary Studies, the Indian Law Institute, the
Institute of Public Administration, the Indian Parliamentary Association and
the Indian Institute of Advanced Study. There have been conventions, seminars
and symposia in which learned papers were read and important speeches made.
Some of these bodies have published the result of their deliberations and the
At
the outset, it would perhaps be appropriate to recall the background in which
our Constitution was framed. When the partition of 1947 was finally announced,
the reaction of Indian leaders was immediate and they unanimously favoured a strong Central Government.
When
Dr. Ambedkar said that the use of the word “
Our
Constitution-makers adopted what is known as, the co-operative system of
federalism. The chief characteristics of this system are inter-dependence
between the Union and the component parts and also the practice of
administrative co-operation between the Union and the State Governments and the
partial financial dependence of the latter on the former. The relationship
between the Centre and the States under this system is a deliberately balanced
one. Co-operation is its very foundation. Co-operation, indeed, is an
indisputable instrument in the working of the federal system. Speaking about
the Australian Federation, Justice Starke of the Australian Supreme Court
stated the basic truth applicable to our federation also: “Co-operation on the
part of the Commonwealth (of Australia) and the States may well achieve objects
that neither alone could achieve; that is often the end and the advantage of
co-operation.” India had to develop as one single economic and social
structure. To regulate the social and economic development of the country”
planning of the activities are inevitably co-ordinated
and inter-related. It is important to remember that the ‘economic and social
planning’ is to be found in the Concurrent List. It is obvious that upon
co-operation between the Centre and the States and the constructive exercise of
powers and the carrying out of the obligations under the Constitution, depends
the success of our planning, the maintenance of internal order and the
preservation of external security.
Since
1950 many events have occurred which have a direct or indirect hearing on
Centre-State relationship. The States were re-organised
under the States Re-oganisation Act, 1956. Thereafter
claims were made on behalf of a number of regions that they might be
constituted into new States. A notable example was the re-organisation of
Punjab. Himachal Pradesh, an erstwhile Union
territory, became a full-fledged State. In course of time, Governments having
different political complexions, programmes and policies from the Government at
the Centre came into being, but this eventuality was within the contemplation
of the Constitution-makers. The Governor’s office assumed a new importance.
Quite often the President had to take over the Government of certain States and
delegate his powers to the Governor. As the Head of the State, the Governor had
to exercise his powers in relation to the appointment of the Council of
Ministers and the summoning and dissolution of the Houses in circumstances
generating acute controversies and strong emotions. In some regions, language
issues were also raised. Boundary disputes between certain States arose, some
of them still remain unresolved. Disputes regarding river waters became acute
and litigation is pending in the Supreme Court. In certain areas law and order
problems became serious. Apart from the cases of floods and droughts and
similar unforeseen calamities there have been growing financial demands by the
States on the Centre.
In
this background it was natural that questions should arise regarding the
rights, duties and powers of the States vis-a-vis the
Centre and the rights, duties, and powers of the centre vis-à-vis the States.
Constitutional machinery now is in full play, and its various parts have been
subjected to real tests. This led in some cases to a re-examination of the
constitutional set-up. Questions began to be asked: Has the Constitution met
the challenges presented by ~he problems which arose in the course of its working?
Can the difficulties experienced be resolved by mutual adjustments of an
administrative character, and so on and so forth.
The
relationship between the Centre and the States covers a wide range and embraces
a very large part of the functions and activities in the administrative, social
and economic fields. This relationship became the subject of investigation by
the Administrative Reforms Commission. That Commission, before examining the
issues regarding this relationship, first appointed a strong team headed by Shri M. C. Setalvad to study all
matters relating to Centre- State relations. On the basis of the report of this
team, the Administrative Reforms Commission submitted its own report on 19th
June, 1969, to the Government on the subject. Referring to the controversies
which had arisen between the Centre and the States, the Commission observed:
“but these controversies pertain mostly to matters administrative and financial
and not to constitutional issues. Eminent leaders of various political parties
who appeared before the Commission emphasised their
faith in the Indian unity, though they argued for more autonomy and initiative
for the States. We, therefore, do not think it necessary to suggest any
amendments to the Constitution. We have, however, made recommendations to the
delegation of more financial and administration of functions and powers to the
States with the twin objectives of making the relations between the Centre and
the States smoother and introducing efficiency and economy in the administration
of the Union and State Governments. It is not in the amendment of the
Constitution that the solution of the problems of the Centre-State relationship
is to be sought, but in the working of the provisions of the Constitution by
all concerned in the balanced spirit in which the founding-fathers intended
them to be worked.” I need not detail the recommendations of the Administrative
Reforms Commission which must be well-known to you all.
On
the 22nd September, 1969, the Tamil Nadu Government
constituted a Committee consisting of Dr. Rajamannar,
Dr. Lakshmanaswami Mudaliar
and Thiru P. Chandra Reddy to examine the entire
question regarding the relationship that should subsist between the Centre and
the States in a federal set-up and to suggest suitable amendments to the
Constitution so as to secure the States utmost autonomy. The report of this
Committee has been considered by, and is still under the consideration of,
individuals and bodies interested in the question. The reports of the
Administrative Reforms Commission and of the Rajamannar
Committee have received wide attention. There has also been critical
examination in the Press. The point worthy of note is that while the
Administrative Reforms Commission reported that no amendment of the Constitution
was necessary, the report of the Rajamannar Committee
has recommended, among other things, quite a number of constitutional
amendments.
Controversies
between the States inter se, and between the Centre and States are
normal in countries governed by federal Constitution. It is common knowledge
that our Constitution-makers had before them the federal constitutions of the
world and they were well aware of the constitutional history of many countries
and the problems that had arisen there concerning the Centre-State
relationship. They were conscious of the fact that such controversies were
likely to arise in India and for this reason they made elaborate provisions for
the resolution of disputes between the Centre and the States and the States inter
se. As a measure for securing ‘co-ordination between States’–that is the
heading of Article 263–the establishment of an inter-State Council was
provided. The duties of such a Council are specifically enumerated. They are:
a)
to
inquire into and advise upon disputes which may have arisen between States;
b)
to
investigate and discuss subjects in which some or all of the States, or the
Union and one or more of the States, have a common interest; or
c)
making
recommendations upon any subject (that is a subject in which some or all of the
States, or the Union and one or more of the States, have a common interest)
and, in particular, recommendations for the better coordination of policy and
action with respect to that subject.
It
is clear that the duties with which the inter-State Council under the
Constitution can be charged are limited. They are advisory in the case of
inter-State disputes and recommendatory in the case of subjects having a common
interest. It will be a question of some importance whether any function not
specified in Article 263 can be assigned to an inter-State Council when
established.
The
Constitution has taken care of the disputes relating to waters of rivers in
Article 262. In pursuance of the powers conferred by that article Parliament
has enacted a law which is in operation. Further, the Constitution has
conferred original jurisdiction on the Supreme Court in disputes between the
Centre and one or more States or between the Centre and any State or States on
one side, and one or more other States on the other or between two or more
States (Article 131). Then there is the power of the President to obtain the
opinion of the Supreme Court on any question or law or fact. In cases of
disputes it is natural that it is in the interest of the parties concerned–and
they would also prefer–to have the disputes settled by mutual discussion. That
is the very essence of democratic life. With mutual goodwill and a spirit of
accommodation probably many such problems and disputes could be resolved. If
mutual discussions fail, resort could be had to the remedies provided in the
Constitution.
As
regard, the legislative lists, it is
well-known that the practice of having three lists, the Union, State and Concurrent, had come into vogue in federal constitutions before our
Constitution was framed. The only question then could be
whether the view to the Administrative Reforms Commission
and others–that no change in the provisions of the Constitution governing the distribution of subjects between the Centre and the States is
necessary–is correct, or re-distribution is required and if so, to what extent? The
Administrative Reforms Commission had noted that the representatives of various parties and interests with whom they and the Study Team had had discussions
were in agreement on the point that re-distribution of the subjects in the lists was not necessary. In the constituent Assembly there was full deliberation on the contents of the lists. While there were those,
among whom was Mr. Santhanam,
who wanted to give lesser powers
to the Centre, there Were
others like Mr. Frank Anthony who urged giving the maximum possible
powers to the Centre in the interest
of the integrity and cohesion
of the nation. In particular, Mr. Anthony
wanted to see that education and health
were brought under the control
of the Centre and at least some
measure of control over Police Services throughout the country. The Constituent Assembly
appears to have taken the view that the quantum of autonomy
that was being conferred on the
States was just and correct consistently with the securing of unity and integrity of the country.
Questions
have also been mooted in regard to the administrative relations between the Centre and the States.
In this connection, it is necessary to bear in mind that,
subject to the provisions of
the Constitution, Parliament has got
the power to make laws for
whole or any part of the territory of India. It follows that Centre will also have its own agencies,
personnel and property in the territories
of the States. There are branches of Income-tax
Department, Defence installations, Customs offices, public undertakings and many other offices belonging to the Centre, functioning in the
territories of the States.
It is a general principle of law that every power carries with it the power
to do all Acts incidental and
necessary in order to effectuate
the object for which the original power was given. To have the power to make laws for the State territories and to
execute them and to establish its agencies
there, but not to have the power to take measures to protect such agencies
would amount to stultification of the
original power. The question
assumes importance in cases
where the State Government might not, or might be unable to give adequate
protection to the personnel and the properties of the Central Government in the
State territory. Articles 256, 257, 258 and 258-A and 365 are based upon the
principle of co-operation which should subsist between the Centre and the
States. Article 256 requires that the executive power of every State shall be
so exercised as to ensure compliance with the laws made by Parliament, 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.
This is a positive injunction on the State. Negatively, Article 257 requires
that 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 in this case
also the executive power of the Union extends to the giving of all necessary
directions. A question may be raised as to why the power to issue directions is
given to the Government of India. The purpose underlying these two Articles is
the purpose of the Government of India, related to the laws made by Parliament
and the executive power of the Union, and the Government of India would be in
the best position to judge what is necessary to carry out that purpose. For
this reason it appears that the Constitution has given power to the Centre to
issue directions to carry out the purpose.
Another measure of co-operation is furnished by Article 258 (1) which empowers the President, with the consent of the Government of a State, to entrust to that Government functions in relation to any matter to which the executive power of the Union extends. Conversely, the Governor of a State is empowered by Article 258-A, with the consent of the Government of India, to entrust to that Government functions in relation to any matter to which the executive power of that State extends. It may be observed that consent of the State Government does not appear to be necessary, where a law made by Parliament confers powers and imposes duties upon the State and its offices. What would happen in case the State Government refuses co-operation to the Centre and disregards the directions given in any matter authorised by the Constitution? Article 365 provides the answer. It lays down that in case the State fails to comply with, or to give effect to, any directions given in the exercise of the executive power of the Union under the provisions of this Constitution, it shall be lawful for the President to hold that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution. Article 355 imposes a duty on the Union to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution. This is in addition to its duty imposed by the said Article to protect every State against external aggression and internal disturbance. Dr. Ambedkar stated in the Constituent Assembly that Article 365 was consequential and not to give this power to the President was practically negativing the directions which the Central Government was empowered to give. The ultimate sanction is incorporated in Article 356 which gives power to the President to issue emergency proclamation where the Government of the State cannot be carried on in accordance with the Constitution.
The duty imposed by
Article 355 in all the three respects, viz., protection against external
aggression, protection against internal disturbance and ensuring that the
Government of every State is carried on in accordance with the provisions of
the Constitution, is an obligation imposed on the Centre in the interest and
for the benefit of the people residing in the State also. That appears to be
the intention of the framers of the Constitution in enacting the above
provisions. Where the Government of the State is carried on in accordance with
the provisions of the Constitution, no difficulty would arise and Article 365
would not come into play. For the retention of the emergency provisions
contained in Article 356, Dr. Alladi very strongly supported Dr. Ambedkar. Dr.
Alladi said that if responsible government functioned properly the Centre would
not and could not interfere. This provision, according to him, is a bulwark in favour of the provincial or State autonomy because the
primary obligation is cast upon the Union to see that the Constitution is
maintained.
While considering the
various issues in connection with Centre-State relationship and the powers of
the Central Government created by the Constitution, it has to be remembered
that the Central Government is responsible to Parliament. The House of the
People represents the people of all the States and the Council of States
represents all the States. Actions of the Government in all states are
subjected to criticism in both the Houses of Parliament and whatever power is
exercised by the Central Government whether in connection with Article 256, 257
or 356, they have to be justified before Parliament. I have been associated
with Parliament since 1960 with the exception of short period and I think it is
a tribute to our Parliament that it exercises effective check and supervision
over the actions of the Central Government.
Governor’s powers have
been the subject of discussion for several years past and I have spoken on the
subject on a number of occasions. Briefly, the position appears to be this: The
Governor who is a link between the Centre and the State, fills a dual role.
Firstly, he is the constitutional authority charged with the duty of seeing
that the government of the State is carried on in accordance with the
provisions of the Constitution. This obligation is imposed on him by his oath
whereby he is required to preserve, protect and defend the Constitution and
also by the fact that he owes a duty to report to the President under Article
356 if the Government of the State cannot be carried on in accordance with the
Constitution. His second role is that of the Head of the State.
A view is very often
expressed that guide lines should be given to the Governor for the efficient
discharge of his duties and for bringing uniformity of action in like
situations. It may be remembered that in the Constituent Assembly, Dr. Ambedkar
had first moved that provision should be made in the Constitution for giving
instructions both to the President and to the Governors. Later on further
consideration, he strongly took the view that a provision for the issue of
instructions to both the President and the Governors should be omitted from the
Constitution. While withdrawing the proposal to incorporate the instrument of
instructions for the Governor Dr. Ambedkar said in the Constituent Assembly
that the instrument was useless because there was no functionary who could see
that the instrument of instructions were carried out by the Governor. Dr.
Ambedkar appears to have admitted that the provisions of instrument of
instructions were, strictly speaking, not enforceable or justiciable.
The proposal by a Member that they may be justiciable
was rejected on the ground that this would permit courts to interfere in the
affairs of Parliament and thus the system of checks and balances would be
upset. It is fair to deduce Dr. Ambedkar and the Members of the Drafting
Committee to the conclusion that the written provisions of a non-jus instrument
of instructions and tacit conventions of a Cabinet Government had equal value.
The proposal to issue the instrument of instructions and to incorporate it in
the Constitution was exhaustively considered by the Constituent Assembly and
was rejected by it. For giving authoritative guide lines to the Governors, a
power in the Constitution will have to be discovered and there is no such
power. Moreover, no instrument of instructions can be exhaustive, as
circumstances not anticipated and not provided for in the instrument may arise.
In this situation, would it not be better that the Governors themselves may lay
the guide lines to be followed by them and conventions in this respect may be
allowed to grow?
I wish to say a few
words on the Governor’s role on one more aspect. Sometimes, it has been said
that even while acting as Chancellor of a university, the Governor is bound by
the advice of the Council of Ministers. In this connection it is worthy of note
that the Chancellor derives his powers from, and exercises his functions under,
the statute creating the office of the Chancellor and it is the duty of the
Chancellor to act in accordance with the provisions of that statute. Some of
the functions are of a quasi-judicial character and the Chancellor, for that
reason, has to exercise his own judgment. Such functions therefore cannot be
expected to be discharged according to the advice of an outside body. Sometimes
the Chancellor has to decide particular matters on the spot, for example, when
he is presiding over the Senate in cases where he is authorised
by the Act to so preside. In such cases the taking of advice from a body
outside the university would be impracticable. The Chancellor’s functions and
powers depend on, and are derived from, the statute creating the university and
the office of the Chancellor, and they have to be in accord with the terms of
each particular statute establishing the university. The fact that the Governor
is ex-officio Chancellor is a mere method of appointment to the office of
Chancellor. He is a Chancellor because he is a Governor, but he is not acting
as Governor when he is acting as Chancellor. The Governor derives his powers
and functions from the Constitution which does not authorise
any State legislature to confer on him any power in his capacity as Governor.
And the university Acts are ordinarily State enactments. Any other view would
take away the autonomy of the universities which will function–if that view be
correct–as a department of the Government. These are the various considerations
which the Seminar may take into account, while dealing with the Governor’s role
when appointed a Chancellor.
I have dealt with only
some of the problems in connection with Centre-State relationship. I have
avoided, as far as possible, giving my own views on these problems, although at
places I had to give my interpretation of the Constitution. I am sure that the
Seminar will exhaustively examine the various issues relating to the subject in
depth. The Seminar will, I have no doubt, bear in mind the problems of law and
order and other problems connected with internal security and external
aggression. They are inescapable facts of life. I am mentioning this because no
issue, much less the issue of Centre-State relations, can be examined in
isolation.
What should be the
approach to the solution of the problems arising in connection with the Centre-State relations? I lay the greatest emphasis on
mutual consultations between the Central Government and the State Governments.
Even at the risk of repetition, I may state that such problems have to be considered
ultimately in the perspective of general considerations regarding the unity of
the nation and the security of the country. While considering the question of
whether there are any defects in the Constitution, it is important first to
examine the reasons behind the constitutional provisions made in the
Constitution and then to see whether those reasons still hold good, and further
to examine whether the fault lies in the constitutional provisions or in the
defective implememation of them. We must not forget
that our Constitution has been in operation for about 21 years and some
conventions have been formed and others are in the course of formation. I am of
the opinion that Constitution, by and large, has worked very well.
* Speech delivered on the inauguration of the
Seminar at Hyderabad on September 23, 1971