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GS Paper: Federalism

  • PM greets people on Statehood day of Tripura, Manipur, Meghalaya

    state

    Prime Minister has greeted people of three northeast states- Tripura, Manipur and Meghalaya on their Statehood Day.

    What is the news?

    • Today marks the 51st anniversary of the formation of the states, which were created on this day in 1972.
    • While Manipur and Tripura were princely states which were absorbed into India in October 1949, Meghalaya, on the other hand, was part of Assam.
    • The states came into being the North-Eastern Areas (Reorganisation) Act, 1971, enacted on December 30 that year.

    Quick backgrounder

    • These states attained statehood under the North Eastern Region (Reorganization) Act of 1971.
    • The NE composition consisted of Assam plains from the old Assam Province, the hill districts, and the North Eastern Frontier Tracts (NEFT) of the North-Eastern borderland.
    • Later on the NE region was turned into seven sisters with the statehood of Manipur, Tripura, Meghalaya, Assam, Mizoram, Arunachal Pradesh, and Nagaland.

    [1] Meghalaya

    • Apart from accounts of the more essential Khasi kingdoms in the chronicles of the neighbouring Ahoms and Kacharis, little is known of Meghalaya prior to the British rule.
    • However, in the early 19th century, the British desire to build a road through the region to link Bengal and Assam led to a treaty with the ruler (Syiem) of the Khasi principality of Nonkhlaw.
    • In 1829, opponents of the treaty persuaded the Syiem to repudiate it, and a subsequent attack on Britishers led inevitably to its military operations against the Khasis.
    • By the mid-1830s, most local rulers had submitted to the British.
    • For the next century, the British exercised its political control over the area, then known as the Garrows and Cossiya (Khasi) States, but the tribals who were left to fend themselves managed to preserve their traditional culture in seclusion.

    Integration into India

    • In 1947, the rulers of the region acceded to the newly independent India.
    • The first PM Nehru evolved a policy to preserve and protect the culture of the tribal people.
    • The region was given special protection in the Indian constitution along with other tribal areas, and it retained a great deal of autonomy.
    • In 1960, when Assamese became the state’s official language, agitation for autonomy and self-rule gathered strength.
    • Unlike many other hill regions in north-eastern India, this movement was largely peaceful and constitutional.
    • In 1970, Meghalaya became an autonomous state within Assam and achieved full statehood on January 21, 1972.

    [2] Manipur

    • Over 500 princely states had negotiated their accession to the Indian union before independence.
    • According to News Nine, the rulers of these states signed a document called the ‘Instrument of Accession’.
    • On August 11, 1947, Bodhachandra Singh, then Maharaja of Manipur, signed the document. He had been assured that the autonomy of Manipur would be maintained.
    • Elections were held in Manipur in June 1948, but its legislative assembly had differences of opinion on the merger.
    • However, the Maharaja signed a Merger Agreement with India in September 1949.

    [3] Tripura

    • Maharajas of the Manikya dynasty ruled the former princely state of Tripura.
    • It was an independent administrative unit under the Maharaja even during British rule in India.
    • However, according to Tripura State Portal, this independence was qualified, subject to the Britishers’ recognition, as the paramount power of each successive ruler.
    • As per Rajmala, in the royal chronology of Tripura, around 184 kings ruled over the state before it merged with the Indian Union on October 15, 1949.
    • Since then, the history of Tripura has been interspersed with various political, economic and social developments.

    Attainment of full statehood

    • On January 26, 1950, Tripura was accorded the status of a ‘C’ category state, and on November 1, 1956, it was recognized as a Union Territory.
    • With its people’s sustained efforts and struggle, it gained full statehood on January 21, 1972, as per the North-East Reorganisation Act, 1971.
    • Its democratic set-up further stretched to the village level in 1978 with an election to the local bodies that ultimately culminated in introducing a three-tier Panchayati Raj System.

     

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  • Renaming of Madras State as Tamil Nadu

    Tamil Nadu Governor’s remarks suggesting changing the name of the state to ‘Tamizhagam’ has triggered a controversy.

    What is the news?

    • Several political parties, including the TN CM, condemned the speech and recalled the struggle to rename the Madras State to Tamil Nadu.
    • It was on January 14, 1969, that the Madras State was officially renamed Tamil Nadu, under the then Chief Minister CN Annadurai.

    A short history of Tamil Nadu

    • Social activist E V Ramasamy, fondly known as ‘Periyar’ (1879-1973), had started the Self-Respect Movement in 1925 to “redeem the identity and self-respect” of Tamils.
    • He envisaged an independent Dravida homeland of Dravida Nadu (In Tamil, Nadu means country), comprising Tamil, and Malayalam, Telugu and Kannada speakers.
    • He launched a political party called the Dravidar Kazhagam (DK).
    • Periyar also opposed the imposition of Hindi and emphasized the need for a cultural identity of the Tamil nation.

    How Madras State became Tamil Nadu?

    • Formerly called Madras Province, it had been renamed Madras State on January 26, 1950.
    • The name Madras State did not become Tamil Nadu overnight.
    • Congress party worker ‘Thiyagi’ Sankaralingam was behind the first demand to change the name, in the 1950s, and made repeated representations.
    • In 1953, several Tamil scholars including Ma. Po. Sivagnanam raised the demand in the Madras Legislative Council.
    • In 1956, Congress leader K P Sankaralinganar began an indefinite fast. One of his demands was the renaming of the state to Tamil Nadu.
    • It is noted that Sankaralinganar fasted for 76 days, which resulted in his death on October 13, 1956. Sankaralinganar’s death further spurred on the fight for renaming the state.

    Reception in Parliament

    • Around the same time, Member of Parliament and Communist leader from West Bengal, Bhupesh Gupta, moved a Bill in Parliament for renaming Madras State as Tamil Nadu.
    • At that time, CN Annadurai, who was a Rajya Sabha member, supported the move.
    • Speaking in favour of the Bill, Annadurai argued that a capital city (Madras) cannot become the name of a state and he also cited that the name Tamil Nadu had been used in ancient literature.

    When it finally happened?

    • Cut to six years later, on July 18, 1967, CM Annadurai prepared a resolution in the State Assembly.
    • During the debate, Opposition Leader P G Karuthiraman said, “Madras is a name in world history; Tamil Nadu will take time to reach the same heights”.
    • So, he suggested that the name ought to be ‘Tamil Nadu-Madras State’.
    • But, after consensus, Tamil Nadu was accepted as the name and a resolution passed unanimously.

     

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  • All Sikkimese women must be allowed to get IT relief: SC

    The Supreme Court in a judgment, held that exclusion of Sikkimese women who marry non-Sikkimese men after April 1, 2008 from exemptions under the Income Tax Act is unconstitutional and amounts to gender discrimination.

    What is the news?

    • The top court’s verdict came on appeal filed by the Association of Old Settlers of Sikkim and others seeking striking down of Section 10(26AAA) of the Income Tax Act, 1961.
    • More particularly, the definition of “Sikkimese” in Section 10 (26AAA) to the extent it excludes Indians who have settled in Sikkim prior to the merger of Sikkim with India on April 26, 1975.

    The story of Sikkim

    • Sikkim witnessed 333 years monarchical rule of Namgyal dynasty under whose reign there many invasions, foreign interference, accession and annexation.
    • On 28th March, 1861 Sikkim became a formal protectorate of the British Government and on 16th May, 1975 it became the 22nd state of the Indian Union.
    • In erstwhile Himalayan Kingdom of Sikkim, no legal rights were conferred to Sikkimese women.
    • However, after Sikkim’s merger with India such Regulations relating to Sikkim citizenship have become futile and non-operational.

    How women rights in Sikkim are different from that of mainstream India?

    The status of rights conferred to Sikkimese women is different from that of women in India. Certain conditionality were imposed upon their property or inheritance right such as the following:

    1. Immovable property inherited, gifted or purchased by women married to non-locals cannot be transferred and registered in their names.
    2. Immovable property of a Sikkimese woman cannot be transferred or registered to her legal heirs if her husband is non-Sikkimese.
    3. Mandatory requirement for Sikkimese women to submit an “unmarried certificate in all government procedures”.
    4. Identity of women is to be based on the identity of not one, but two men. A Sikkimese woman will be considered Sikkimese only if both, her father and husband are also Sikkimese

    Issues with such regulations

    • Unconstitutional: The discrimination is based on gender, which is wholly violative of Articles 14, 15 and 21 of the Constitution.
    • Gendered bias: It is to be noted that there is no disqualification for a Sikkim man, who marries a non-Sikkimese after April 1, 2008.
    • Associating identity to marriage: A woman is not a chattel and has an identity of her own, and the mere factum of being married ought not to take away that identity,” Justice Shah wrote.
    • No legal basis: Sikkim has become a part of India and all Sikkim Subjects and all Sikkimese domiciled in the territory of Sikkim have become Indian citizens.

    Note: Article 14 relates to equality before law, while Article 15 forbids discrimination on grounds of religion, race, caste, sex or place of birth, and Article 21 provides for right to life and personal liberty.

    Way ahead

    • Legal reforms: The centre shall make an amendment to Explanation to Section 10 (26AAA) of IT Act, 1961, so as to suitably include a clause to extend the exemption from payment of income tax to all Indian citizens domiciled in Sikkim on or before April 26, 1975.
    • Ensure parity: The reason for such a direction is to save the explanation from unconstitutionality and to ensure parity in the facts and circumstances of the case.

     

     

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  • Kalasa-Banduri Nala Project

    nala

    Karnataka’s decision to go ahead with a water diversion project on river Mahadayi has escalated its long-standing dispute on the issue with neighbouring Goa.

    What is the Kalasa-Banduri Nala Project?

    • The Kalasa Banduri Nala project aims to divert water from Mahadayi to satisfy the drinking water needs of Belagavi, Dharwad, Bagalkot and Gadag districts.
    • Though the project was first proposed in the early 1980s, it has remained on paper owing to a dispute between Karnataka, Goa and Maharashtra.
    • As per plans, barrages are to be built against Kalasa and Banduri streams — tributaries of Mahadayi — and water diverted towards Karnataka’s parched districts.

    The larger issue: Mahadayi dispute

    • Mahadayi originates inside the Bhimgad Wildlife Sanctuary in the Belagavi district of Karnataka and flows into the Arabian Sea in Goa.
    • Goa, under its then CM Manohar Parrikar, approached the Centre, urging it to assess the available resources in the river and allocate water to the three basin states — Goa, Maharashtra and Karnataka.
    • Due to the protests in Goa and also due to concerns over ecological damage, the project was put on hold by the then government.
    • The dispute gained steam in 2006, when Karnataka decided to start work on the project.
    • Goa then approached the Supreme Court, seeking the creation of a Tribunal to settle the water sharing dispute.
    • A Tribunal was finally set up by the UPA government in November 2010.

    What did the Tribunal award?

    • The Tribunal in 2018 awarded 13.42 TMC water from Mahadayi river basin to Karnataka, 1.33 TMC to Maharashtra and 24 TMC to Goa.
    • In Karnataka’s share, 5.5 TMC was to meet drinking water needs and 8.02 TMC was for hydro-electricity generation.
    • Of the 5.5 TMC, 3.8 TMC was to be diverted to Malaprabha basin through Kalasa and Banduri Nalas (canals).
    • This was notified by the Central government in February 2020.

    Issues raised with the Tribunals award

    • After the Tribunal award, Goa filed a Special Leave Petition in the Supreme Court in July 2019, challenging the quantum of allocation.
    • Subsequently, in October 2020, it filed a contempt petition before the SC, accusing Karnataka of illegally diverting water from the Mahadayi basin.
    • Civil appeals were also filed by Maharashtra over the dispute.

    Also read:

    In news: Interstate River Water Disputes Act, 1956

     

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  • Rule 267 becomes the bone of contention in Rajya Sabha

    rajya-sabha

    Rule 267 of the Rajya Sabha rulebook, which allows for suspension of day’s business to debate the issue suggested by a Member, has become a bone of contention in the Upper House.

    What is Rule 267 of Rajya Sabha?

    • The Rule gives special power to a Rajya Sabha member to suspend the pre-decided agenda of the House, with the approval of the Chairman.
    • The Rajya Sabha Rule Book says, “Any member, may, with the consent of the Chairman, move that any rule may be suspended in its application to a motion related to the business listed before the Council of that day.
    • If the motion is carried, the rule in question shall be suspended for the time being: provided further that this rule shall not apply where specific provision already exists for suspension of a rule under a particular chapter of the Rules”.

    Why this rule has become important?

    • In the Upper House, the Opposition members have been consistent in demanding a debate on the India-China border situation.
    • There have been hundreds of notices by Members to invoke Rule 267 in the past eight years.
    • After the latest clash between the two sides in Arunachal Pradesh’s Tawang, the Opposition members have become more vocal with their demand.
    • Every day, Opposition leaders are demanding that the Chair suspends all other business and allow a discussion on the latest situation in India-China border by applying Rule 267.

    Is Rule 267 the only way to raise important issues in the House?

    In Parliament, a member has a number of ways to flag issues and seek the government’s reply.

    • Question Hour: An MP can ask questions related to any issue during the Question Hour in which the concerned minister has to provide oral or written answers.
    • Zero Hour: An MP can raise the issue during Zero Hour. Every day, 15 MPs are allowed to raise issues of their choice in the Zero Hour.
    • Special Mention: An MP can even raise it during Special Mention. A Chairman can allow up to 7 Special Mentions daily.
    • Debate over president’s address: An MP can try to bring the issue to the government’s notice during other discussions such as the debate on the President’s speech.
    • Budget speech: Opposition leaders have also used the Budget debate to attack the government politically.

    Why the Opposition is insisting on Rule 267?

    • Any discussion under Rule 267 assumes great significance in Parliament simply because all other business would be put on hold to discuss the issue of national importance.
    • No other form of discussion entails suspension of other business.
    • If an issue is admitted under Rule 267, it signifies it’s the most important national issue of the day.
    • Also, the government will have to respond to the matter by replying during the discussions under Rule 267.

    What is the current controversy over Rule 267?

    • Opposition members have alleged that the Rajya Sabha chairman has consistently refused to allow any discussion under Rule 267 for a long time.
    • While Dhankhar has not allowed any matter under Rule 267, his predecessor M Venkaiah Naidu too didn’t allow any admission under Rule 267 during his entire five years.

    Has the Rule been ever used?

    • The rule has been used several times.
    • The Chair had agreed to suspend the business to discuss urgent national issues in the past.
    • The last time it was used was in November 2016, when the Upper House invoked Rule 267 to discuss demonetization.

     

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  • The curious case of Fiscal Federalism in India

    Federalism

    Context

    • NITI Aayog has not taken any major steps since its constitution to promote cooperative federalism. Contrary to its public statements on promoting cooperative federalism, the Government of India has been accused of doing exactly the opposite. The following instances clearly demonstrate as to how the central government’s policies have undermined the spirit of federalism and eroded the autonomy of the States.

    Why the states are angry over hypocrisy of the Centre?

    • Centre raises off budget borrowings states are restricted: The borrowings by corporations against State guarantees are mostly used for capital investment. The Centre has also been raising off Budget borrowings but mainly for meeting revenue expenditure.
    • CAG report on extra budgetary resources: The Comptroller and Auditor General of India (C&AG) Report on the Compliance of FRBM Act for 2017-18 and 2018-19 pointed out as many as eight instances of meeting revenue expenditure through Extra Budgetary Resources (EBR).
    • Unjustified limitations on states: Revenue expenditure met through EBR by the Centre amounted to ₹81,282 crore in 2017-18 and ₹1,58,107 crore in 2018-19. Such borrowings were not reflected in the Budget of the central government. In view of this, treating off Budget borrowings of State corporations as States’ borrowings retrospectively is totally unjustified.

    Federalism

    Unhappiness about the grants by the finance commission’s recommendations?

    • Special grants are not given to states: The Fifteenth Finance Commission, in its first report, had recommended a special grant to three States amounting to ₹6,764 crore to ensure that the tax devolution in 2020-21 in absolute terms should not be less than the amount of devolution received by these States in 2019-20. This recommendation was not accepted by the Union Government.
    • Nutritional grants are accepted: the recommendation relating to grants for nutrition amounting to ₹7,735 crore was not accepted.
    • Grants to states are refused by the Centre: A similar approach has been followed by the Union Government with regard to grants to States recommended by the Finance Commission for the period 2021-26.
    • Sector and state specific grants: The sector specific grants and State specific grants recommended by the Commission amounting to ₹1,29,987 crore and ₹49,599 crore, respectively, have not been accepted. This clearly demonstrates that the Union Government has undermined the stature of the institution of the Finance Commission and cooperative federalism.

    How borrowing of the states is controlled by the Centre?

    • Changes in off budget borrowing norms: decision to treat off Budget borrowings from 2021-22 onwards serviced from the State budgets as States’ borrowings and adjusting them against borrowing limits under Fiscal Responsibility and Budget Management (FRBM) in 2022-23 and following years is against all norms.
    • No recommendations by finance commission: This is the first time that the Government of India is proposing to treat off Budget borrowings as government borrowings retrospectively from 2021-22. The Government of India has indicated that such a decision is in accordance with the recommendation of the Finance Commission. In fact, there is no recommendation to this effect by the Fifteenth Finance Commission. The Finance Commission recommended that governments at all tiers may observe strict discipline by resisting any further additions to the stock of off Budget transactions.
    • No amendment to FRBM act: It observed that in view of the uncertainty that prevails now, the timetable for defining and achieving debt sustainability may be examined by a high-powered intergovernmental group and that the FRBM Act may be amended as per the recommendations of this group to ensure that the legislations of the Union and the States are consistent. No such group has been appointed so far by the Centre.

    Federalism

    Cess and Surcharge- A tool to raise revenue for Centre not available to the states

    • Rising share of cess and surcharges: The government has been resorting to the levy of cesses and surcharges, as these are not shareable with the States under the Constitution. The share of cesses and surcharges in the gross tax revenue of the Centre increased from 13.5% in 2014-15 to 20% in the Budget estimates for 2022-23.
    • States don’t get all share in divisible pool: Though the States’ share in the Central taxes is 41%, as recommended by the Fifteenth Finance Commission, they only get a 29.6% share because of higher cesses and surcharges.
    • Undermining the purpose of cess: The C&AG in its Audit Report on Union Government Accounts for 2018-19 observed that of the ₹2,74,592 crore collected from 35 cesses in 2018-19, only ₹1,64,322 crore had been credited to the dedicated funds and the rest was retained in the Consolidated Fund of India. This is another instance of denying States of their due share as per the constitutional provisions.
    • Increasing centrally sponsor scheme and burden on state: Committee after committee appointed by the Government of India has emphasised the need to curtail the number of Centrally Sponsored Schemes (CSS) and restrict them to a few areas of national importance. But, what the Government of India has done is to group them under certain broad umbrella heads (currently 28). In addition, in 2015, the Centre increased the States’ share in a number of CSS, thereby burdening States. Most of the CSS are operated in the subjects included in the State list. Thus, States have lost their autonomy.
    • NITI Aayoge recommendations are not accepted: The Sub-Committee of Chief Ministers appointed by NITI Aayog has recommended a reduction in the number of schemes and the introduction of optional schemes. These recommendations have not been acted upon.

    Federalism

    Conclusion

    • Finance commission is balancing wheel of fiscal federalism. Share of states in central taxes may have increased but cess and surcharges have also increased. Off budget borrowing on states can lifted provided should reduce the unnecessary freebies in the state budget.

    Mains Question

    Q. Fiscal federalism is tilted in favour of Centre. Elaborate. How Cess and surcharges are discriminatory against the state governments?

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  • Vice-Chancellor Appointment, New Chapter in Centre-State Relations

    Vice-Chancellor Appointment

    Context

    • Recent judgments of the Supreme Court of India on the appointment of vice chancellors (VC) in State universities in violation of the regulations of the University Grants Commission (UGC) are significant in the context of higher education in a federal country such as India.

    Vice-Chancellor Appointment

    What are the recent judgements of Supreme Court?

    • Gambhirdan K. Gadhvi vs The State of Gujarat (March 3, 2022): In the case, Gambhirdan K. Gadhvi vs The State of Gujarat (March 3, 2022), from Sardar Patel University, Gujarat, the Court (Justices M.R. Shah and B.V. Nagarathna) quashed the appointment of the incumbent Vice Chancellor on the ground that the search committee did not form a panel for the appointment of VC, and, therefore, was not in accordance with the UGC Regulations of 2018.
    • UGC regulations will prevail over state law: It was held that since the State law was repugnant to the UGC regulations, the latter would prevail and the appointment under the State law had become void ab initio.
    • Professor (Dr) Sreejith P.S vs Dr. Rajasree M.S. (October 21, 2022): In the second case, from Kerala, i.e., Professor (Dr) Sreejith P.S vs Dr. Rajasree M.S. (October 21, 2022), with the Bench of Justices M.R. Shah and M.M. Sundresh, the appointment of the Vice Chancellor of the A.P.J. Abdul Kalam Technological University, Thiruvananthapuram, was challenged on the ground that the search committee recommended only one name, which is against the UGC Regulations.
    • Supreme court quashed the appointment of VCs: The Court quashed the appointment of the VC on the ground that the provision relating to the search committee in the University Act is repugnant to the UGC Regulations, and was therefore void.

    Vice-Chancellor Appointment

    Implications of the recent judgement

    • Many VCs asked to resigned by Governor: Decision of the Supreme Court triggered unprecedented developments in Kerala with the State Governor, who is the Chancellor of all the universities in Kerala, asking as many as 11 VCs of other universities of the State to resign immediately on the ground that their appointments too had become void after the Supreme Court’s judgment.
    • Tussle between governor and state: No VC has resigned as per the direction of the Governor. This development has intensified an already raging battle between the state government and the Governor, which is likely to become fiercer with the Kerala High Court quashing the appointment of the VC of the Kerala University of Fisheries and Ocean Studies on November 14 on the ground that this appointment was in violation of the UGC Regulations.

    What are the legal and constitutional issues with judgement?

    • UGC regulations vs state university Act: In both these cases, the issue framed by the Supreme Court is about whether the appointment of VCs should be made as per the UGC Regulations or the provisions of the State University Act.
    • Education in concurrent list, Centre and state can make a legislation: As education is a subject on the Concurrent list, this question needs to be addressed seriously. A VC is appointed by the Chancellor under the relevant University Act, but the Supreme Court has brought in Article 254 of the Constitution to rule that if provisions of the State law are repugnant to the provisions of the Union law, the State law will become void.
    • State law declared void over UGC violations: In the cases mentioned above, the top court found that the search committee recommended only one name for the appointment of VC which violates the UGC Regulations which require three to five names, and, therefore, the provision of the State law is void.
    • Subordinate regulations prevailed over state law: Thus, the Court’s conclusion is that if any provision in the State university law is repugnant to the UGC Regulations, the latter will prevail and the former will become void. So, on the one side we have an Act passed by a legislature and on the other we have regulations made by a subordinate body such as the UGC.

    Opinion of experts

    • State laws are subordinate to the act of parliament: A careful reading of Article 254 would show that the repugnancy under this Article relates to a state law and a substantive law made by Parliament. It impliedly excludes rules, regulations, etc. Rules and regulations are made by subordinate authorities in this case the UGC whereas the substantive law is made by the superior authority, namely Parliament.
    • State laws are not subordinate to UGC regulations: The repugnancy can arise only between the provisions of the University Acts and the UGC Act, and not the regulations of the UGC.
    • UGC regulations are inferior to state assembly: The rules and regulations made by the subordinate authority, though laid in Parliament, do not go through the same process as a law. Normally these do not require the approval of Parliament. The rules and regulations have an inferior status as compared to an Act. The Constitution cannot be assumed to equate the Act with the rules.
    • Article 254 does not include regulations: The Constitution does not, in general terms, define the term law. The inclusive definition of law given in Article 13(2) is applicable only to that Article. It has no application to other Articles, which means the term law does not include the rules, regulations, etc. for the purpose of Article 254.
    • Violation of federal principle: The regulations made by a subordinate authority of the Union overriding a law made by a state legislature will amount to a violation of federal principles and a negation of the concurrent legislative power granted to the State by the Constitution.
    • UGC regulations are Not part of UGC act: The UGC Regulations on the appointment of VCs are outside the scope of the main provisions of the UGC Act as none of its provisions refers to the appointment of VCs.

    Conclusion

    • Issue of appointment of vice-chancellor has opened the new conflicting chapter between Centre-state relations. Supreme court’s decision has further added the confusion rather than clarity to the issue. Supreme court need to review the judgements for harmonious relations between Centre and states.

    Mains Question

    Q. Explain the article 254 about Centre-state legislative relations? How the issue of vice-chancellor appointment is problematic for Centre-state relationship?  

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  • The case of “Governor’s pleasure”

    pleasure

    Context

    • A tweet put out recently by the office of the Kerala Governor evoked nationwide attention for all the wrong reasons. It said: “the statements of individual Ministers that lower the dignity of the office of the Governor can invite action including withdrawal of pleasure”. the Governor sent a letter to the Kerala CM asking him to act against the State Finance Minister, who, according to the Governor, had “ceased to enjoy” the Governor’s “pleasure”. The Chief Minister declined to do so.

    Who is a Governor?

    • Parallel to President: The Governors of the states of India have similar powers and functions at the state level as those of the President of India at the Central level.
    • Nominal head: The governor acts as the nominal head whereas the real power lies with the Chief Ministers of the states and her/his councils of ministers.
    • Similar offices: Governors exist in the states while Lieutenant Governors or Administrators exist in union territories including National Capital Territory of Delhi.
    • Non-local appointees: Few or no governors are local to the state that they are appointed to govern.

    Important Constitutional Provisions related to Governor

    • Article 153: It requires a governor to be appointed for every state in India.
    • Article 154: Vests the executive power of the State in the Governor
    • Article 155: Appointment of the Governor
    • Article 156: Term of Office of Governor
    • Article 157: Qualifications for appointment as Governor

    Executive functions of Governor include

    • An important function of the Governor is to appoint the Chief Minister of the State.
    • Other ministers are also appointed by the Governor on the advice of the Chief Minister.
    • The ministers including the Chief Minister hold office during the pleasure of the Governor.
    • The Governor has the constitutional right to know the decisions of the Council of Ministers relating to the administrative affairs of the State and the proposals for legislation.

    What are the contradictory issues with Governor’s office?

    • Bound by the principle: The function of the appointed Governor is always subject to the policies of the elected government, and not vice-versa. This is a foundational theory of India’s constitutional democracy.
    • Contradictory Aid and advise and Discretion: Article 163(1) says that the Council of Ministers must aid and advise the Governor. However, according to Article 163(2), the Governor can act in his discretion in certain matters as permitted by the Constitution
    • Discretion still bounds by cabinet decision: Governor is generally bound by the Cabinet decision except when he has a legitimate right to invoke his discretion, say, for example, in deciding on sanction to prosecute a cabinet minister or in his decisions as Administrator of a Union Territory, as per the orders of the President of India, etc.
    • Apparatus of interaction: There are no provisions laid down for the manner in which the Governor and the state must engage publicly when there is a difference of opinion. The management of differences has traditionally been guided by respect for each other’s boundaries.

    Pleasure

    Issues of “Pleasure” of Governor

    • Constitution Bench judgment of Supreme court in Shamsher Singh vs State of Punjab (1974) case:
    • In Shamsher Singh, for the purpose of comparison, the Supreme Court extracted Dr. B.R. Ambedkar’s introductory statement made on November 4, 1948, in the Constituent Assembly, which said: “The President of the United States is not bound to accept any advice tendered to him by any of his secretaries. The President of the Indian Union will be generally bound by the advice of his Ministers. He can do nothing contrary to their advice nor can he do anything without their advice. The President of the United States can dismiss any Secretary at any time. The President of the Indian Union has no power to do so, so long as his Ministers command a majority in Parliament”.
    • The same principles apply to the Governors as well, since the Union Minister also holds the office “during the pleasure of the President” as in Article 75(2) of the Constitution.
    • “Withdrawal of pleasure”, without advice from the Council of Ministers, as indicated by Raj Bhavan is a misconception.
    • Historical background of Article 264:
    • The draft Constitution, prepared by the Constitutional Adviser in October 1947, contained Article 126, according to which, “Governor’s Ministers shall be chosen and summoned by (the Governor) and shall hold office during his pleasure”.
    • This Article, which was made part of the draft of the erstwhile Article 144, was discussed at length in the Constituent Assembly.
    • The general discretion with the Governor was taken away, and the Cabinet was given the authority to rule. Amendment to the draft Article 144 moved by B.R. Ambedkar resulted in the present constitutional scheme of Articles 163 and 164.
    • According to the Scholar Subhash C. Kashyap:
    • The words ‘during pleasure’ were, always understood to mean that the ‘pleasure’ should not continue when the Ministry had lost the confidence of the majority.
    • the moment the Ministry lost the confidence of the majority, the Governor would use his ‘pleasure’ in dismissing it.

    Conclusion

    • During the deliberations in Constituent Assembly Debates,1949, H.V. Kamath asked if there was any guarantee against abuse of power by the Governor. The immediate reaction by P.S. Deshmukh, another prominent member was: “the guarantee is the Governor’s wisdom and the wisdom of the authority that will appoint the Governor”

    Mains Question

    Q. What is the role of Rajbhavans in the state government’s day to day business. Analyze the constitutional mandate of the governor’s pleasure and accountability of ministers.

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  • Governor: 1st essential part of State Legislature

    GovernorContext

    • In Tamil Nadu, the Governor forwarded the Bill for exemptio from the National Eligibility cum Entrance Test (NEET) to the President after considerable delay.
    • In Kerala the situation has become a bit curious with the Governor publicly announcing that he would not give assent to the Lokayukta Amendment Bill and the Kerala University Amendment Bill. Such actions by Governors throw the legislative programmes of governments out of gear because of the uncertainty surrounding the assent.

    What is Role of Governor in Legislature?

    • Integral part: A Bill passed by the State Assembly becomes law only after it is assented to by the Governor.The Governor being a part of the State legislature, the process of law making is complete only when he signs it, signifying his assent.
    • Established practice: In all democratic countries, similar provision exists in their constitutions.

    Governor What is the Power of Governor Vis-e-vis legislature?

    • What Article 200 says: The Constitution provides certain options for the Governor to exercise when a Bill reaches him from the Assembly.
    • There are four possible scenarios:
    1. Assent: He may give assent.
    2. Reconsider: He can send it back to the Assembly requesting it to reconsider some provisions of the Bill, or the Bill itself. In this case, if the Assembly passes the Bill without making any change and sends it back to the Governor, he will have to give assent to it.
    3. Reserve: The third option is to reserve the Bill for the consideration of the President.
    4. Withhold: The fourth option, of course, is to withhold the assent.

    What are the Legislative practice in other democracies ?

    • UK: The royal assent is necessary for a Bill to be passed by Parliament to become law and the crown has the power to withhold assent. But it is a dead letter.
    • No power of veto: By practice and usage there is no power of veto exercised by the crown in England now. Moreover, refusal of royal assent on the ground that the monarchy strongly disapproves of the Bill or that the Bill is very controversial is treated as unconstitutional.
    • USA: In the United States, the President is empowered by the Constitution to refuse assent and return a Bill to the House but if the Houses again pass it with two thirds of each House the Bill becomes law.

    GovernorWhy there is an ambiguity over the role of governors in India?

    • Role of the governor: The question of whether a Governor is permitted by the Constitution to cause uncertainty in the matter of giving assent to the Bills passed by State legislatures assumes great importance.
    • Presidential Assent: The provision concerned makes it clear that a Bill can be reserved for the consideration of the President only if the Governor forms an opinion that the Bill would endanger the position of the High Court by whittling away its powers. The Constitution does not mention any other type of Bill which is required to be reserved for the consideration of the President. Nevertheless, the courts have conceded a certain discretion to the Governors in the matter of sending Bills to the President.
    • Constitution is silent: the Constitution does not mention the grounds on which a Governor may withhold assent to a Bill.
    • No remedy: The Indian Constitution, however, does not provide any such remedy as that of USA or UK . The courts too have more or less accepted the position that if the Governor withholds assent, the Bill will go. Thus, the whole legislative exercise will become fruitless. It does not square with the best practices in old and mature democracies.

    What is the Court mandated legislative practice?

    • According to Article 361: The Constitution prohibits the court from initiating proceedings against a Governor or the President for any act done in exercise of their powers. They enjoy complete immunity from court proceedings. It is in fact a unique situation where a government is placed in a situation of having to challenge a Governor’s action of withholding assent to a Bill.
    • Reasons: Governor while declaring that he withholds assent will have to disclose the reason for such refusal.
    • No Arbitrary actions: Being a high constitutional authority, the Governor cannot act in an arbitrary manner
    • Unconstitutional: If the grounds for refusal disclose mala fide or extraneous considerations or ultravires, the Governor’s action of refusal could be struck down as unconstitutional.
    • Rameshwar Prasad and Others. vs Union of India case: The Court held: “the immunity granted by Article 361(1) does not, however, take away the power of the Court to examine the validity of the action including on the ground of malafides”.
    • Pocket veto: since the Constitution does not fix any timeline for the Governor to decide the question of assent, he can wait for any length of time without doing anything. This is illogical and militates against the constitutional scheme in respect of law making by the legislatures.

    GovernorConclusion

    • The legislature reflects the will of the people and is the constitutionally designated body to make laws. If the Governor who does not reflect in any way the aspirations of the people of the State refuses assent, and thereby defeats the legislative programme of the elected government, it would be against the spirit of the Constitution.

    Mains Question

    Q.Governor is the connecting link between state and central executive. Discuss the duties of Governor with respect to state legislature? Why Governor tilt more towards centre than state?

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  • AP approaches SC over Three Capitals Issue

    capitals

    After much discontent on the High Court (HC) verdict in the three capitals case, the Andhra Pradesh government has finally challenged it in the Supreme Court through a special leave petition (SLP).

    AP’s move for three capitals

    • AP had introduced a ‘Three Capitals Act’ titled Andhra Pradesh Decentralisation and Inclusive Development of All Regions Act, 2020.
    • Thus, it was decided that:
    1. Amaravati was to be the Legislative capital
    2. Visakhapatnam the Executive capital and
    3. Kurnool the Judicial capital
    • However, the Andhra Pradesh High Court repealed this Act citing that the legislature has no competence to enact any law for shifting the three organs of the capital.

    Concerns raised by AP government

    • AP contended that the judgement was in violation of the basic structure of the Constitution as the HC cannot hold that the State does not have the powers to decide on its capital.
    • The judgement was against the doctrine of separation of powers as it sought to preempt the legislature from taking up the issue (of three capitals).
    • Further, it is argued that under the federal structure of the Constitution, every State has an inherent right to determine where it should carry out its capital functions from.

    Reasons for AP’s consideration

    (1) Viable option of Visakhapatnam

    • Vizag always had been the biggest city, after Hyderabad, even in the combined State.
    • It has all the settings to become a good living space.

    (2) Sri Krishna panel recommendations

    • The advantages and qualities of Visakhapatnam to become the capital was elaborately deliberated by the Sri Krishna Committee to study the alternatives for a new capital for the State of Andhra Pradesh.
    • Coming to suggestion for the alternative capital, the Committee primarily took up three things for consideration — creation of single city or super city in greenfield location, expanding existing cities and distributed development.

    (3) Decentralisation

    • This idea was elaborately described in the Sri Bagh pact.
    • The pact clearly defined decentralisation, for the benefit of all three main regions such as Coastal AP, Godavari and Krishna districts and Rayalaseema.

    Major practical problems

    • Continuum of work: The government argues that the Assembly meets only after gaps of several months, and government Ministers, officers, and staff can simply go to Amaravati when required.
    • Logistics nightmare: coordinating between seats of legislature and executive in separate cities will be easier said than done.
    • Time and costs of travel: The distances in Andhra Pradesh are not inconsiderable. Executive capital Visakhapatnam is 700 km from judicial capital Kurnool, and 400 km from legislative capital Amaravati.

    Examples of multi-capital states in India

    • Among Indian states, Maharashtra has two capitals– Mumbai and Nagpur (which holds the winter session of the state assembly).
    • Himachal Pradesh has capitals at Shimla and Dharamshala (winter).
    • The former state of Jammu & Kashmir had Srinagar and Jammu (winter) as capitals where Darbar Move is carried out.

    Back2Basics: Special Leave Petition

    • SLP hold a prime place in the Indian judicial system.
    • It provides the aggrieved party a special permission to be heard in Apex court in appeal against any judgment or order of any Court/tribunal in the territory of India.
    • It has been provided as a “residual power” in the hands of Supreme Court of India to be exercised only in cases when any substantial question of law is involved, or gross injustice has been done.
    • Article 136 vests the Supreme Court of India with a special power to grant special leave, to appeal against any judgment or order or decree.
    • It is discretionary power vested in the Supreme Court of India and the court may in its discretion refuse to grant leave to appeal.
    • The aggrieved party cannot claim special leave to appeal under Article 136 as a right, but it is privilege vested in the Supreme Court to grant leave to appeal or not.

     

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