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The Summary of India’s Tax Reforms

Income Tax	In 1973-74, there were 11 income tax slabs, ranging from 10 per cent to 85 per cent. With a sur charge of additional 15%, the implication of which is high earning individuals paying an effective tax of 97% of their incomes. The Wealth tax further makes a hole further hole in their pockets. As a result, people start evading taxes. The tax reforms of 1986-87 reduced the tax slabs from 8 to 4 and brought the marginal tax rate down from 60 to 50 percent. The major tax reforms took place in 1991-92 and 1996-97, lowering the marginal tax rate to 35 percent. The reforms further eliminated the Wealth tax. The Kelkar Task force recommendations for simplification of tax structure was accepted with certain modifications by Government in 2005-06.
Corporation Tax	The rate of taxation varied highly for different types of Corporations until Two decades ago. Tax effective rate of taxation for corporates was 45 to 65 percent. The tax reforms of 1991-92 and 1996-97 reduced the marginal tax rates to 40% and further to 35% respectively. The subsequent budgets have further reduced the marginal tax rates, and the tax rate currently stands at 30%, with a plan commitment to reduce it to 25% in the coming years.
Custom Duty	India followed an import substitution model after independence for its growth. The result of which is the need for saving foreign exchange reserve. As a result, India started levying high customs duties on its imports. Throughout the 1970s and 1980s, India had a very complex and regressive custom duty structure. India also maintains a huge negative list of imports along with quantitative restrictions. Things started to change post-1991 Crisis, and with liberalization and opening up of the Indian economy, the peak rates of customs duty were slashed from 300% to 30% in the successive budgets. The peak rate was further lowered after Setting up of the WTO and reduced to 25%, 20% and 12.5% in 2003-04, 2005-06 and 2006-07 respectively. The lower bound of current average customs duty is 10%.
Excise Duty	India’s excise duty structure dis-incentivize the manufacturers. The Excise duty had a cascading effect (tax on tax) as the manufacturer gets no input credit (Tax already paid by him on the previous round of purchase). As a result, both production and manufacturing suffered heavily. To revamp India’s manufacturing, GOI decided to make fundamental changes in Excise duty structure. As a first step, India introduced the MODVAT in 1986, which was further simplified and renamed as CENVAT in the year 2000. The CENVAT contained the provisions of input credit, if a manufacturer purchased an input for which duty has been paid, he could avail back the duty already paid by him as input credit.
Sales Tax/VAT	The indirect taxation enquiry committee was constituted in 1976 for suggesting reforms in India’s indirect tax structure. The committee recommended the imposition of ad valorem type of tax due to their high-income elasticity. The committee further recommended that excise duty and sales tax should be replaced by a single commodity tax or VAT. The empowered committee of state finance ministers on June 2004, arrived at the broad consensus to introduce VAT from April 2005. As a result, the sales tax was replaced by VAT.
Service Tax	A key drawback of India’s tax system was that it was discriminatory towards Goods. In India, except for a few services assigned to states such as entertainment, electricity no other service is assigned either to the centre of the states. The discrimination between goods and services when it comes to taxation violated the concept of neutrality of taxation. This is especially so when the services are more income elastic and consider to be a progressive form of taxation. To remove the biased ness towards services, the GOI introduced the service tax in 1994-95 initially on three services- telephone services, insurance and share broking. Since 1994-95, every year the service net has been widened. The government has over the years increased the service tax from 10% in 2012-13 to 15% in 2017-18. The Tax reforms committee of 1991, headed by Raja J Chelliah and Committee on Service taxation headed by M Govind Rao are all in favour of imposing the Service tax. The same is also recommended by Vijay Kelkar committee on direct and indirect taxes.

 

By
Himanshu Arora
Doctoral Scholar in Economics & Senior Research Fellow, CDS, Jawaharlal Nehru University

Key Concepts Relating to Taxation

Tax Incidence

The key to imposing the tax is who bears its burden. If the person on whom the tax is imposed have the flexibility to transfer it on to the other person, then we say tax incidence has shifted. The shifting of tax form one person to the other is known as tax incidence.

All indirect tax comes under this category. For all direct tax, the incidence of tax and burden lies with the same person.

The incidence of tax mainly depends on its elasticity. Elasticity is nothing but the responsiveness. Example: If you are walking on the road and suddenly a car comes towards you, you respond quickly to get out of the way. This is your responsiveness towards the speed of the car. The faster you get out the way, the higher is your responsiveness. The same concept is applied to income, demand and taxes. If due to a change in prices, the demand responds at a much faster rate, then we say demand is highly elastic vis-à-vis prices.

Consumer Demand	Producer	Burden/Incidence
Elastic	Inelastic	Consumer
Inelastic	Elastic	Producer

Tax Avoidance

It refers to minimising the tax liabilities using an available source of exemptions and tax laws. It is by means of taking advantage of shortcomings of tax structure. It usually happens at the tax planning stage.

Tax Evasion

It refers to reducing the tax liabilities using illegal measures. Tax evasion is a clear case of forgery of accounts as it uses measures which are unforbidden in law.

Cascading Effect in Taxation

A Cascading tax is one, which is not just on final product value but also on the raw materials used as input. The tax is levied at every stage of production and distribution. It is a tax on tax.

For example, resin, rubber and carbon black are necessary for manufacturing tyres. All the three inputs paid tax and the final products namely the tyres also paid tax. So, these three inputs are taxed twice. Then again, the tyre is used in a car, which also is taxed. These three inputs are now taxed thrice. So, the tax element on these inputs goes on increasing with every production and distribution chain. The cascading effect of tax makes the tax rate much higher than the original rate.

Laffer Curve

Laffer curve is named after noted economist Arthur Laffer. Laffer curve shows the relationship between Government tax revenue and tax rates.

The curve is inversely U Shape, representing as the tax rate increases, the government revenue also increases up to an optimum level. Post which, if the government tries to increase taxes, the government revenue will start falling. Thus, a government must maintain an optimum balance between tax rate and revenue.

Tax Buoyancy

Tax buoyancy is a measure of the responsiveness of the tax receipts with respect to GDP.

A tax is considered buoyant when revenue increase by more than one percent if the GDP has increased by 1 percent.

Fiscal drag

Fiscal drag is a concept where inflation and earnings growth may push more tax payers into higher tax brackets. Therefore, fiscal drag has the effect of raising government tax revenue without explicitly raising tax rates.

An example of this would be if a person earns Rs 10 000 per year, and has to pay 20% tax on earnings above Rs 5000 for year one. he would then pay (10 000 – 5000) *0.2, which equals 1000 or 10% of her income.

If the person pay goes up by 10% to R11000 to compensate for inflation, and the government increases the tax threshold by 2% in year two to 5 200, he would pay (11 000 – 5200) multiplied by 0.2 which equals 1160 or 10.54% of her income in taxes.

The proportion of Rahul’s income in taxes has increased. This is fiscal drag or bracket creep. This illustrates that when there is inflation, taxes rise unless the tax rates or tax accordingly.

CESS VS Surcharge

Cess	Surcharge
A cess is imposed over and above the tax for a specific predetermined purpose.	A surcharge is a charge levied on any tax. It is an additional charge on tax.
For example a cess on financing primary education as education cess or a cess for the cleaning and sanitation as Swach Bharat Cess.	The main surcharge levied on income and corporation taxes beyond a certain threshold.
A cess is levied as an addition to the proposed taxes. Like a 3% education cess on Income tax.	A sur charge of 10% in addition to the income tax of 30% for high net worth individuals earning more than 50 Lakhs.
The revenue from cess is not kept under Consolidated Fund of India.	The revenue from the sur charge is kept under Consolidated Fund of India.
Cess is not to be shared with States.	Sur Charge is also not to be shared with states.

 

By
Himanshu Arora
Doctoral Scholar in Economics & Senior Research Fellow, CDS, Jawaharlal Nehru University

Special Category Status to States

Various Chief Ministers across the nation have been demanding special status for their respective states since last few years. This has led to fierce debates amongst the proponents and critiques of the special category status.

The proponents argue that granting special status to these states will bring them at par with those who have developed their industrial base by benefitting through the flawed grant-to-states schemes by the Planning Commission of India over the years.

But not everybody is convinced as the critics argue that development does not come out as a dole. In an era of open competition and liberalization granting special status to States, which do not qualify as per the original criteria under political compulsions would be detrimental to the interest of other deserving states.

The whole idea of a special category state was introduced in 1969 by the Fifth Finance Commission, which as per the Gadgil formula gave special status to the states of Nagaland, Assam and Jammu and Kashmir. Today eleven states in the country enjoy this status including seven north-eastern states, Sikkim, Jammu Kashmir, Uttrakhand and Himachal Pradesh.

As per the Gadgil formula “special status” is to be given to certain states because of certain intrinsic factors which have contributed to their backwardness historically. Some of these factors include:

1. 1. Hilly and difficult terrain;
   2. Low population density or sizable share of tribal population;
   3. Strategic location along borders with neighbouring countries;
   4. Economic and infrastructural backwardness; and
   5. Non-viable nature of state finances

 

Benefits of Special Category Status

 

The Planning Commission allocates funds to states through central assistance for state plans. Central assistance can be broadly split into three components:

• Normal Central Assistance (NCA),
• Additional Central Assistance (ACA) and
• Special Central Assistance (SCA)

NCA, the main assistance for state plans, is split to favour special category states: 11 states get 30% of the total assistance, while the other states share the remaining 70%. The nature of the assistance also varies for special category states; NCA is split into 90% grants and 10% loans for special category states, while the ratio between grants and loans is 30:70 for other states.

For allocation among special category states, there are no explicit criteria for distribution and funds are allocated on the basis of the state’s plan size and previous plan expenditures. Allocation between non-special category states is determined by the Gadgil Mukherjee formula, which gives weight to population (60%), per capita income (25%), fiscal performance (7.5%) and special problems (7.5%). However, as a proportion of total centre-state transfers NCA typically accounts for a relatively small portion (around 5% of total transfers in 2011-12).

Special category states also receive specific assistance addressing features like hill areas, tribal sub-plans and border areas. Beyond additional plan resources, special category states can enjoy concessions in excise and customs duties, income tax rates and corporate tax rates as determined by the government.

The Planning Commission also allocates funds for ACA (assistance for externally aided projects and other specific project) and funds for Centrally Sponsored Schemes (CSS). State-wise allocation of both ACA and CSS funds are prescribed by the centre.

 

Role of Finance Commission

 

Planning Commission allocations can be important for states, especially for the functioning of certain schemes, but the most significant centre-state transfer is the distribution of central tax revenues among states. The Finance Commission decides the actual distribution and the current Finance Commission have set aside 32.5% of central tax revenue for states.

In 2011-12, this amounted to Rs 2.5 lakh crore (57% of total transfers), making it the largest transfer from the Centre to States. In addition, the Finance Commission recommends the principles governing non-plan grants and loans to states. Examples of grants would include funds for disaster relief, maintenance of roads and other state-specific requests.

Among states, the distribution of tax revenue and grants is determined through a formula accounting for population (25%), area (10%), fiscal capacity (47.5%) and fiscal discipline (17.5%). Unlike the Planning Commission, the Finance Commission does not distinguish between special and non-special category states in its allocation.

Other ways that can be explored without giving the Special Category Status

Even though the Centre cannot grant special status to States based on political demands it can infuse more funds to some non-special category states from its Backward Region Grants Fund. The Centre can also ask the 14th Finance Commission to tweak the formula for determining the transfer of central resources to states.

 

Centrally Sponsored Schemes (CSS)

 

In the areas requiring national effort, it is imperative for the Centre to make interventions. The government of India tries to do this through various programmes and policies including the CSS. Central Government has introduced several schemes in areas that are a national priority like health, education, agriculture, skill development, employment, urban development, rural infrastructure etc.

Several of these sectors fall in the sphere of activity of States. The share of all CSS as percentage of GBS has increased continuously in the last three Plans. In the Eleventh Plan it went up to 41.59% as against 38.64% in Tenth Plan and 31% in Ninth Plan States have been raising concerns at various forums about lack of flexibility in CSS schemes and adverse pressure created on the resources of states due to CSS etc., some of them have been addressed below:

1. Inability to provide matching funds: To access the funds from center under some CSS, there has to be a definite percentage contribution from the States. The pattern of assistance to States varies. Generally it is Central Government’s contribution of 90% for North-East States and 75%–100% in different schemes for other States. The number of States, particularly the North-East States, Bihar and Jharkhand have often represented that they have limitation of resources and are not able to provide State’s share to enable them to access the required funds under CSS.
2. Lack of flexibility: An important area impacting on efficient implementation of CSS has been the need for flexibility in many of the schemes. India with its different geographical regions, varied requirements of States, different levels of infrastructure development, demographics and economic growth, requires flexibility for States to plan their development.
3. It is necessary that CSS take into account the ongoing schemes in the States so as to ensure convergence with the existing schemes. For example, if money is provided under IAY for construction of houses and the State Government is also putting its own resources, it may be possible to construct a house with a cement roof, along with a toilet and rooms which have better interior. Another argument to support this is that the cost of project is different in different areas and this needs to be fully taken care of. For example, the cost of buildings in the North-East and in the far- east corners of North-East has great variations.
4. Different accounting procedures: Accounting process is different in different States for the same CSS scheme. It is, therefore, not possible to have an effective Central monitoring and accounting system.

Way Ahead around CSS

There is a need for reforms in designing of CSS, physical and financial norms, planning, transfer of funds, monitoring and evaluation. There is also a need to meet the concerns of the States on their inability to provide counter-part funds as the States are not able to access these funds.

Distribution of CSS funds amongst different States should be based on transparent notified guidelines. Such guidelines should be put on the website of the concerned Ministries. There is also a need to cut down on the number of CSS. In the current financial year, budgetary provision has been made for 137 CSS. The existing CSS/ACA Schemes in the Twelfth Five-Year Plan have been restructured into 66 Schemes, including Flagship Programmes.

National Counter Terrorism Centre (NCTC)

Background of NCTC

NCTC or National Counter Terrorism Centre is India’s federal anti-terror organization, which gained importance after the 26/11 attacks, as it was felt that India did not have a central agency with real time intelligence input with regards to terrorism. Most of the blame of 26/11 attacks was put on the inability of the States to co-ordinate among themselves and the Centre to share intelligence inputs.

The NCTC would focus on drawing up plans and co-ordinating all actions and integrating all intelligence related to counter-terrorism. The agency has been made under the provisions of UAPA, 1967 (Unlawful Activities Prevention Act). It has been given the power to search, seizure and arrests throughout India to prevent terror activities.

Objections raised by States

1. Public Order is a State subject: States object that policing/public order is a State subject and this is an encroachment on their rights and thus an attack on the federal structure.
2. Control of Intelligence Bureau: States also object that NCTC is a part of Intelligence Bureau, which is controlled by the Home Ministry. As wide powers are given to the NCTC, the agency could be directed solely at the behest of Home Ministry without taking the consent of the State concerned. So, there will be political mileage to be generated in respect of searches and arrests against opponents.
3. Wide Powers: States also object to the wide powers given to NCTC and therefore demand trimming down of powers to search, seizure and arrest.

Way Ahead for NCTC

Keen to push the National Counter Terrorism Centre in the aftermath of the serial blasts in Hyderabad, the home ministry tweaked the proposal in 2013 saying NCTC will inform the chief of state police before conducting any operation in state’s jurisdiction. Besides this introduction of safeguards is necessary so that the NCTC does not get unbridled powers.

The country has to function as one, irrespective of which party is in power. India follows a federal system and this mandates that both the Union and state governments work in tandem. In no way can the Union government impose its will without consulting with the state governments. For a federal system to succeed there is an urgent need to reach a consensus on matters such as terrorism, which is a national concern.

Issues around GST

The GST or the Goods and Services Tax aims to create a common market throughout India without any taxes on inter-state movement of goods. A Constitutional Amendment Bill to facilitate the implementation of GST is currently pending in Parliament. The Goods and Services Tax is being billed as a significant next step in indirect tax reform since VAT was successfully introduced all over India. However, in introducing GST, there are some objections from some State governments.

Objections by States on GST

1. The fiscal autonomy of States: The compensation mechanism for possible revenue loss in future. If the same GST rate is applied to all States and the States cannot impose any other taxes, some States may feel they would lose the power to raise revenues, especially if they require the funds to come good on electoral promises of distributing freebies.
2. Compensation Rates: The Centre is promising to compensate the States for any revenue loss for the first three years after GST is introduced. But, a uniform rate may not compensate the revenue loss for all the States because: some states are more industrialized, some are more agricultural and some are resource-rich.

Therefore, some States feel they should have the power to impose supplementary taxes, and at appropriate rates as necessary, even if a State-level GST is introduced. But, the Centre is not in favor of allowing States this freedom as that would undermine the objective of a single market with a uniform stable tax regime.

3. Disagreement over alcohol, spirits: States demand that alcoholic items should be kept outside GST, whereas the Centre opines it should be under GST in order to remove the cascading effect on GST paid on inputs such as raw material and packaging material

Way Ahead for GST

1. Setting floor rates: In view of the apprehensions of the States, one option is to set a floor rate instead of a single fixed rate for all the States. This is also necessary to prevent unhealthy tax competition among States trying to attract investment, with no real benefits to any State.

If at all a consensus emerges on a uniform rate, then possibly the States will want to retain the power to impose additional duties and cesses, if needed, in the initial years till revenues stabilize. This may be subject to approval from the GST Council or the regulatory body that will have representatives from the Centre and the States.

1. Great Fiscal autonomy: Giving the States some degree of fiscal autonomy is good also because it will force them to be fiscally responsible. Otherwise, some States may blame the Centre for their lack of efforts to raise tax revenue by arguing that their hands have been tied by the Centre as part of the GST deal and hence it is the Centre’s responsibility to bail them out in case of any Budget shortfall.

In making this transition, the paramount objective should be to ensure that the basic federal structure in terms of the relative revenue and fiscal autonomies of the Central and State governments are not disturbed.

 

Federalism and Foreign Policy

Even though foreign policy is the prerogative of the Central government and the Constitution does not allow the states to take initiatives in these matters, the West Bengal Government challenged the Central Foreign policy on sharing the waters of river Teesta by stalling the bilateral treaty with Bangladesh.

Some of the states have been arguing in favour of a role for the states in the foreign policy of the country, particularly, states with an international border are vocal on issues, which directly or indirectly impact them. Similarly, when the issue of border trade with China came up for discussion, Sikkim’s views were sought. Tamil Nadu has demanded the intervention on the issue of Tamil killings in Sri Lanka every now and then.

The north-eastern States of the country have borders with various countries like Myanmar, Bangladesh, China, Bhutan and Nepal and their proximity of countries east of India demands that their economies should benefit more from the Look East Policy. North Eastern State leaders have been asserting that their views should be sought while conducting negotiations with neighbouring countries on economic and political issues.

There is a case for institutionalizing the process of consultation and involvement of States, which are affected by a particular foreign or security policy measure. Barring Haryana, Madhya Pradesh, Jharkhand, and Chhattisgarh, all Indian States share borders with other countries, or with the international waters of the sea. In that sense, they have interests or issues that may intersect with the foreign and security policies of the country.

Among the various governmental systems, the U.S. is one in which the interests of its federal constituents are taken into account in the formulation and exercise of foreign and security policies. This was part of the large and small States compromise that resulted in its constitution. 

This enables its Upper Chamber, the Senate, to be the lead house on foreign policy issues — ratifying international agreements, approving appointments of envoys and so on. The Senate, as is well known, has a membership which is not based on population — each State, large and small, populous or otherwise, has the same number of Senators.

It would be difficult to graft something like the U.S. system on to the Indian system. Yet, clearly, the time has come when Mizoram and Nagaland also have a say in India’s Myanmar policy, instead of merely having to bear its consequences.

 

By
Himanshu Arora
Doctoral Scholar in Economics & Senior Research Fellow, CDS, Jawaharlal Nehru University

The Indian Constitution has elaborate provisions regarding the distribution of revenues between the Union and the States.

Article 268 to 293 in Part XII deal with the financial relations. The financial relations between the Union and the States can be studied under the following heads:

• Taxes and duties levied by the Union, but collected and appropriated by the States: Stamp duties and duties of excise on medical and toilet preparations are levied by the Government of India, but collected and appropriated by the States, within which such duties are leviable, except in the Union Territories, where they are collected by the Union Government (Art. 268). The proceeds of these duties levied within any State are assigned to that State only and do not form a part of Consolidated Fund of India. 

Service tax levied by the Centre, but collected and appropriated by the Centre and the States: Taxes on services are levied by the Centre, but their proceeds are collected and appropriated by both the Centre and the States. Principles of their collection and appropriations are formulated by the Parliament.

• Taxes levied and collected by the Union, but assigned to the States within which they are leviable (Art.269):

a) Succession duty in respect of property, other than agricultural land.

b) Estate duty in respect of property, other than agricultural land.

c) Terminal taxes on goods or passengers carried by railways, sea or air.

d) Taxes on railway fares and freights taxes on transactions in Stock Exchanges.

• Taxes levied and collected by the Union and distributed between the Union and the States (Art.270): Certain taxes are levied as well as collected by the Union, but their proceeds are divided between the Union and the States in a certain proportion in order to effect an equitable distribution of the financial resources.

This category includes all the taxes and duties referred to in the Union List, except the three categories mentioned above, any surcharge and any cess levied for specific purposes. The manner of distribution of net proceeds of these taxes is prescribed by the President, on the recommendation of the Finance Commission.

• Surcharge on certain taxes (Art.271): The Parliament is, authorized to levy surcharge on the taxes mentioned in the above two categories (Art.369 and Art.370) and the proceeds of such surcharges go to the Centre exclusively and are not shareable.
• Taxes levied and collected and retained by the states: These are the taxes enumerated in the State List (20 in number) and belong to the States exclusively.
• Grants-in-Aid: The Parliament may make grants-in-aid from the Consolidated Fund of India to such States as are in need of assistance (Art.275), particularly for the promotion of welfare of tribal areas, including special grant to Assam.

These are called statutory grants and made on the recommendation of the Finance Commission. Apart from this, Art.282 provides for discretionary grants by the Centre and States both, for any public purposes. The Centre makes such grants on the recommendation of the Planning Commission (an extra-constitutional body).

• Loans: The Union Government may provide loan to any State or give guarantees with respect to loans raised by any State.
• Previous sanction of the President (Art 274): No Bill or amendment can be introduced or moved in either House of Parliament without the previous sanction of the President, if:

1. It imposes or varies any tax in which the States are interested; or
2. It varies the meaning of the expression “Agricultural Income” as defined in the Indian Income-Tax Act; or
3. It affects the principles on which money are distributed to the States; or
4. It imposes a surcharge on the State taxes for the purpose of the Union.

• According to Article 301, Freedom of Trade, Commerce and Intercourse throughout the territory of India is guaranteed, but Parliament has the power to impose restrictions in public interest.
• Although taxes on income, other than agricultural income, are levied by the Union, yet the State Legislatures can levy taxes on profession, trade, etc.
• Distribution of non-tax revenues: Non tax revenues from post and telegraph, railways, banking, broadcasting, coinage and currency, central public sector enterprises and escheat (death of a person without heir) and lapse (termination of rights) go to the Centre, while State receives non-tax revenues from irrigation, forests, fisheries, state public sector enterprises and escheat and lapse (if property is situated in that state).
• Provision has been made for the constitution of a Finance Commission to recommend to the President certain measures for the distribution of financial resources between the Union and the States (Art.280).

Under the situation of emergencies, these financial relations also undergo changes according to the situation and the President can modify the constitutional distribution of revenues between the Centre and the States.

The framers of Indian Constitution made detailed provisions in the Constitution in regard to administrative relations between the Centre and State to ensure minimization of conflict between the two. They have been elaborated below:

a) Directives by the Union to the State governments: Article 256 mentions that the executive power of every state shall be so exercised as to ensure compliance with laws made by Parliament and any existing laws, which apply in that state, and the executive power of the Union shall extend to the giving of such directions to a state as may appear to the Government of India to be necessary for that purpose.

This provision is looked upon with suspicion in many countries.

Dr. Ambedkar explained the aim of Article 256 through two important propositions:

“The first proposition is that generally the authority to execute laws, which are related to what is called the Concurrent field, whether the law is passed by the Central Legislature or is passed by the State Legislature shall ordinarily apply to the State.

The second proposition it lays down is that if, in any particular case, Parliament thinks that in passing a law, which relates to the Concurrent field, the execution ought to be retained by the Central Government, Parliament shall have the power to do so.”

This power of the Union extends to the limit of directing a State in a manner it feels essential for the purpose.

For instance, the Union can give directives to the State pertaining to the construction and maintenance of means of communication, declared to be of national or military importance, protection of railways within the State, the provisions of adequate facilities for instructions in mother tongue at the primary stage of education to children belonging to linguistic minority groups in the State and for the drawing up and execution of the specified schemes for the welfare of the Schedule Tribe in the State.

This is essential to ensure the implementation of Parliamentary laws throughout the country. Non-compliance of the directives might lead to a situation mentioned under Art.365 and then 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 the Constitution.

Thus, the Union can invoke Article 356, for the imposition of President’s rule in the State and take over the administration of the State.

b) Delegation of Union functions to the States: Usually executive powers are divided on the basis of subjects in the lists, but under the constitutional provision of Article 258(1) the President may, with the consent of the State government, entrust (either conditionally or unconditionally) to that government any of the executive functions of the Centre.

Under Art 258(2), the Parliament is also entitled to use the state machinery for enforcement of the Union laws, and confer powers and entrust duties to the State. Under Art 258A, the State can also, with the consent of the Union government, confer administrative functions to the Union. In respect of matters in the Concurrent list, executive powers rest with the State, except when a constitutional provision or a Parliamentary law specifically confers it to the Centre.

c) All India Services: Besides the Central and State services, the Constitution under Article 312 provides for the creation of an additional “All-India Services“, common to both the Union and States. The State has the authority to suspend the officials of All India Services, but the power of appointment and taking disciplinary action against them vests only with the President of India.

The idea of having an integrated well-knit All India Services to manage important and crucial sectors of administration in the country was incorporated in our Constitution. Their recruitment, training, promotion, disciplinary matters are determined by the Central government. A member of the Indian Administrative Service (IAS), on entry into the service is allotted a State, where he/she serves under a State government.

Though, it can be argued that the All India Services violate the principle of federalism, but such an arrangement, wherein a person belonging to the All India Service being responsible for administration of affairs, both at the Centre and States, brings cooperation in administration and helps to ensure uniformity of the administrative system throughout the country. Currently, there are three All India Services, namely IAS, IPS and IFoS (the Indian Forest Service was created as the third All India Service in 1966 by Art.312).

d) Constitution of Joint Public Service Commission for two or more States: When two or more states, through a resolution to that effect, in their respective legislatures agree to have one such Commission, the Parliament may by law, provide for a Joint Commission.

There is also a provision in the Constitution, wherein on request by two or more States, the UPSC can assist those states in framing and operating schemes of joint recruitment to any service for which candidates with special qualifications are required.

e) Inter-State Council: India is a Union of States, wherein the Centre plays a prominent role, but at the same time is dependent on the States for the execution of its policies. The Constitution has provided for devices to bring about inter-governmental cooperation, effective consultations between the Centre and States so that all important national policies are arrived at through dialogue, discussion and consensus.

One such device is the setting up of the Inter-State Council. The President is given powers under Article 263 of the Constitution to define the nature of duties of the Council. The Council is to inquire into and advise upon disputes, which may have arisen between the States.

In addition, it may investigate and discuss subjects of common interest between the Union and the States or between two or more States, in order to facilitate co-ordination of policy and action. The inter-state council was set up under Article 263 of the Constitution in 1990. The ISC has held 10 meetings so far and has taken several important decisions. Some of them are:

1. Time-bound clearance of bills referred for the President’s consideration
2. Approved the Alternative Scheme of Devolution of Share in Central Taxes to States
3. Indiscrete use of Article 356 in the country

f) Inter-State river water dispute: Article 262 states that the Parliament may, by law, provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-state river or river valley and it may by law provide that neither the Supreme Court, nor any other court shall exercise jurisdiction in respect of any such dispute.

Apart from this, Art.355 imposes duties on the Centre to protect every State against external aggression and internal disturbances and to ensure that the Government of every State is carried on, in accordance with the provisions of the Constitution.

In case of National Emergency (Art. 352), the Centre becomes entitled to give executive directions to a State on any matter.

Similarly, during President Rule (Art. 356), the President can assume to himself the functions of State government and the power vested in Governor or any other executive authority in the State.

During operation of Financial Emergency (Art.360), the Centre can direct the States over certain financial matters and the President can give other necessary directions, including reduction in salary of persons serving in the State and the Judges of the High Court.

• The Role of the Governor (Discretionary Power and Appointment Issues), Reservation of Bills for Consideration of President
• Misuse of Article 356
• The Maintenance of Law and Order in States
• Encroachment by the Centre on State List
• The Financial weakness of the State
• Taxation Powers
• Issue of Grants
• Role of Planning Commission
• Question of Autonomy Issue

Article 356 is the most contentious article of the Constitution.It offers for State emergency or President’s rule in State if the President, on receipt of

It offers for State emergency or President’s rule in State if the President, on receipt of report from the Governor of a State or otherwise, is satisfied that a situation has risen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution.

The duration of such emergency is six months and it can be extended further. In the Constituent Assembly, Ambedkar had made it clear that the Article 356 would be applied as a last option. He also hoped that “such articles will never be called into operation and that they would remain a dead letter.”

Emergency Provision

Article 356 should be used very carefully, in extreme cases, as a matter of last resort. A warning should be issued to the disturbed State in specific terms alternatives must not ordinarily be dispensed with.

It should be provided through proper amendment that nevertheless anything in clause (2) of Article 74 of the Constitution, the material facts and grounds on which Article 356 (1) is appealed, should be made an integral part of the proclamation issued under the Article.

This will also assure the control of the Parliament over exercise of this power by the Union Executive, more effective.

Role of the Governor

The Governor is appointed by the President of India for five years. But he remains in the office till the pleasure of the President. It means, he can be recalled any time and his continuation in the office depends at the will of the Centre.

The Supreme Court has held that the Governor’s office is an independent office and neither it is under control nor subordinate to the Government of India.

However, a study of Governors in the States clearly exposes that most of them have been active politicians before becoming Governor and the rest were bureaucrats. They are appointed on political basis and therefore hardly expected to play a non-partisan role

It is the Governor’s biased role that has been the center point in Union-State skirmishes. The Governors have advanced the political interests of the ruling party of the Centre in the States.

This has been done most remarkably in the appointment of Chief Ministers, summoning, proroguing and dissolving the State Assemblies and in recommending President’s rule.

Besides the normal functions which Governor exercises as a constitutional head, he exercises certain discretionary powers. Some of them have been particularly conferred on him while some others flow by necessary implication.

These are significant particularly in the following cases:

• One is with regard to the appointment of Chief Minister when neither a single party nor a combination of parties emerges from the election with a clear majority. In this situation, there is a question of dismissal of Chief Minister on the loss of majority support or otherwise.
• The second is with regard to making a report to President under Article 356 about this satisfaction that a situation has risen in which the Government of the State cannot be carried according to the provisions of the Constitution. Thereby recommending the imposition of President’s rule, the issue of declaration of President’s rule itself has become a matter of serious tension between union and state governments.

Reservation of Bills for Consideration of President

According to the Article 200 of the Constitution, certain types of bills passed by the State legislature may be reserved by the Governor for the consideration of the President.

The President may either give his acceptance or may direct the Governor to send it back for reconsideration by the State legislature along with his comments.

But even after the bill has been passed by the State legislature for the second time, the President is not bound to give his assent. The main purpose of this provision is that the Centre can observe the legislation in the national interest.

But Governors, and through them the Central Government have used this provision to serve the partisan interests.

The opposition reigned States have from time to time raised a tone and shout against the misuse of these provisions. This has specially been the case where the Governor has reserved a bill against the advice of the State Ministry, presumably under the direction of the Central Government.

In its memorandum to Sarkaria Commission, the Bharatiya Janata Party alleged that the bills have been reserved for consideration of the President in order to create difficulties for the State governments.

The West Bengal government in its reply to the Sarkaria Commission’s questionnaire felt that Articles 200 and 201 either should be deleted or Constitution should clarify that the Governor would not act in his discretion but only on the advice of the State Council Ministers.