In the legislative field
The distribution of powers are tilted toward center, 42nd amendment further increase the powers of union and decreased the subjects in the state list.
In case of India, beside emergencies, when our federation becomes unitary, even in normal situations, union govt. gets power to legislate on state subjects. e.g. Art 249 -with Rajyasabha resolution as a safeguard. However Rajyasabha is hardly a federal chamber in India.
Art 252 – With the consent of at least two states. It is a permanent transfer of power.
Art 253 – In case of implementation of international agreements.
Art 201 – Discretionary powers of governor to reserve the bill for president’s consideration.
Discretionary power is used in absolutely arbitrary manner. e.g. Similar bill of one state get passed and other is reserved. e.g. The bill of Maharashtra govt. on organized crime was passed while that of Gujarat kept on hanging. And now the ruling party at the union has changed, so the bill has been passed.
There is no time limit within which president will take the decision. Bills remain pending for decades. Thus union executive acting in an arbitrary manner undermines the parliamentary democracy at the state.
Thus in legislative sphere, the situation of states are too weak.
Center-state disputes in administrative sphere.
Constitutionally India is executive federation but same constitution provides huge bargaining powers to the union government. Some of the controversial issues are
Power of union to issue directions. It includes power to punish in case state government does not implement the directions.
As per Article 365, in case state government does not implement the orders, president can ascertain that the government of the state cannot run according to the constitution.
Art 356. Most controversial. In case of breakdown of constitutional machinery, union can impose president’s rule. Unique provision of Indian constitution borrowed from 1935 act.
Art 356 is one of the major reason behind the rise of secessionist trend in states like Jammu and Kashmir, Punjab.
The members of constituent assembly raised the objections but Ambedkar assured that the provision is included only as a precaution. He assured assembly that it will remain ‘dead letter’.
In actual practice, it has been used frequently. In less than 70 years of the republic, around 115 times. More frequent use was till 80s. In 90s the misuse has declined because of a) Coalition governments at union b) Judicial activism. The main credit goes to judiciary.
Example of arbitrary use of Art 356. In 1977 when Janata Party came to power, it dissolved the governments in 9 states. (ruled by Congress). What was the ground? Since Congress lost elections for Lok Sabha, It can be take for granted that people would not prefer the Congress governments in the states. In 1980, when Indira Gandhi came to power, she repeated the act. Dissolving governments in 9 states on similar grounds.
Supreme Court in S R Bommai case 1994 has established that federalism is a basic structure of the constitution. Judiciary has issued guidelines with respect to the use of Art 356.
As per constitution, courts cannot inquire what advice council of ministers have given, on the basis of which President has taken decision to impose Art 356. However in S R Bommai case Supreme Court held that, judiciary can ask for ‘material evidence’ on the basis of which any rational person will take the decision to impose Art 356. Material evidence has to be ‘speaking document’. Self evident. Judiciary further clarified that as the use of Art 356 should be the last option, only when it becomes absolutely necessary.
No automatic dissolution of the assembly till parliament approves. Assembly will be kept suspended. Even after parliament approves, it is open to judicial review. Court can restore the suspended assembly including the government if court finds, it is done with mala-fide intentions.
Arunachal Pradesh (2016) became the first case where Supreme Court restored the dissolved assembly.
Role of All India Services
A colonial legacy, all India services is a unique feature of India. It undermines parliamentary democracy. Members of All India Services are appointed by union and can be removed only by union. Chief Minister of a state can only suspend. Since ultimate disciplinary powers are with union, the members of the services act as ‘agent of union’. There are instances where suspended official has been restored to the same post in the same department by union govt. Not only it weakens the position of Chief Minister, it also leads to ‘politicization’ of civil services. Supreme Court had directed to constitute civil services board. However no such step has been taken. Board can take decisions on promotions, transfers and other disciplinary matters.
Deployment of Union’s armed forces and para-military forces.
Law and Order is a state subject. 42nd Amendment Act introduced that Union government can deploy its forces in aid of the civilian authorities of the state governments. What is the constitutional basis? Art 355 – It is the duty of the Union to protect each state from internal disturbance. What are state’s concerns? 1] Suo moto deployment. Supreme Court held that such deployment is not the violation of federalism. 2] State governments have a concern because the powers, privileges, immunities of the members of these forces is decided exclusively by Union. Union should involve states in consultation.
Inter-state Water Disputes
Whisky is for drinking and Water is for fighting.Mark Twain.
Significance of the issue
It has been predicted that future wars are going to be ‘water wars’. Water is now treated as new oil. South Asia is heavily dependent on water because of agrarian nature of economy and one of the most stressed in terms of water/per capita availability of water is actually lowest in the world.
India has water disputes with almost all neighbors. Within the country majority of major rivers are intra-state. Water dispute is a special category of dispute for which constitution has special provision (Art 262). The only dispute which excludes the jurisdiction of Supreme Court.
Water is a state subject under entry 17, in case of inter-state rivers, river valleys, union govt. has vast powers in the public interest. Entry no. 56 of union list. Since water is a matter of politics, union has preferred to treat inter-state rivers and river valleys as a state subject. According to the experts like Nirvikar Singh, the biggest responsibility for the continuation of disputes lies with union govt. Union govt. has not utilized its powers in the matter given by the constitution. Approach of union govt. has led to the politicization.
Mechanisms and constitutional provisions.
Art 131, 136, 262, 263, Zonal Councils..
Analysis of the mechanisms
1| If we talk from the perspective of constituent assembly, it would have preferred the route of inter-state council. (Art 263). Because of the ease with which these councils can be created – by president’s resolution.
Unfortunately, the facility was never used. Since water disputes cannot be solved through legal routes, this platform should have been utilized.
2| Zonal Councils – Extra constitutional mechanism created by state reorganization Act 1956. (Statutory body). One of the major purpose was to offset the negative consequences of state reorganization, specifically in case of water disputes. The then home minister, G V Pant (Govind Vallabh Pant) mentioned that ‘rivers know, no linguistic boundaries.’. Unfortunately not a single dispute ever referred.
3| Art 131 – Original jurisdiction of Supreme Court. The least preferred option had been the prime option till 1956. Interstate Water Dispute Act (ISWD Act) 1956 excludes water disputes from the jurisdiction of Supreme Court.
However Supreme Court continues to play the role of arbiter in such disputes under Art 136 special leave petition.
Analysis of the role of the Supreme Court.
1| States approach to the Supreme Court against the judgement of tribunals. Thus the entire exercise of the tribunal becomes waste. It also includes huge wastage of public funds.
2| Supreme Court does activism at the cost of its routine work, there is a huge pendency of appeals in Supreme Court.
3| Special leave petition is special. To be used rarely, but it has become so routine that it is hardly special. More than 30,000 special leave petitions are pending in Supreme Court.
According to Pratap Bhanu Mehta, Indian judiciary is ‘self-perpetuating institution’. It means, it does not leave the opportunity to improve its image and increase its powers.
It is the only category of dispute where the jurisdiction of Supreme Court is excluded. Hence Supreme Court should act with restrain.
Comparison with USA
In USA, these disputes come under the original jurisdiction but Supreme Court of USA does not entertain the appeals. Thus compel states to resolve the problem by consultation.
According to Fali S Nariman, it is better if we restore pre 1956 status. Means abolish tribunal system and restore the original jurisdiction.
Provisions under Art 262
1| Constitution provides that parliament, if thinks so can exclude the jurisdiction.
2| Parliament may, by law provide for the resolution of the dispute. Accordingly after state reorganization in 1956, parliament has brought 1) Interstate water dispute Act 1956 2) River boards act 1956.
Analysis of River Board Act 1956
A proactive approach so that the dispute does not arise at all. It will develop the habit of cooperation among co-riparian states. They will go for joint planning, development, execution, monitoring. No board has been constituted so far.
Centre is planning to bring a legislation to fast-track inter-State river water dispute resolution and also to better manage work on 13 river basins across the country.
It will replace River Board Act 1956.
Each authority will have two-layer system comprising a governing council and executive board.
Chairpersons of governing council will be CM’s of river basin states who will share the post on rotation.
Bill envisages that CM’s meet twice a year.
Analysis of provision of interstate water dispute Act 1956.
The act contains many loopholes, somewhere plugged by the amendment in 2002. Present govt. has proposed an amendment bill to plug further loopholes. Even the proposed amendment appears to be half-hearted attempt.
Understanding the loopholes on the basis of the case study of Kaveri.
1| The act lists certain category /types of disputes as water disputes, primarily related to the use of water. Disputes related to the other matter e.g. Height of the dam (Mula-Periyar dam) can go directly to the Supreme Court under Art 131.
In case any dispute arises, the interested states can approach to central govt. Central govt. would first try to resolve the dispute by mediation, in case that does not work, it will constitute the tribunal.
Working of permanent tribunal.
Not very different from the existing system. Existing system – govt refers matters to CJI, CJI constituted 3 member tribunal.
Tribunal consists of at least one judge of SC and two other judges either of SC or HC.
Now also there will be benches of the tribunal with similar composition. Once the work is over, either bench will be dissolved or judges will be absorbed in other tribunals.
It is to be noted that tribunals in India, do not differ from courts. Punchhi commission had recommended the interdisciplinary tribunal, including the members from other fields. Such suggestion is not introduced. Present bill however makes some reforms.
Earlier, there was no limit on the term of the members, now the bill proposes the limit. Permanent tribunal will consist of 1) Chairperson (Creation of Benches), 2) Vice-chairperson (Will play the role in absence of chairperson), 3) Six other members. Now, no member can serve after the completion of 70 years of age. The term of chairman is limited 5 years or 70 years of age, whichever is earlier.
Award of the tribunal.
1 .Earlier there was no fixed time frame, so tribunals took extraordinary time. e.g. Kaveri tribunal gave award after 17 years. It gave award in 2007, that too when Tamil Nadu approached Supreme Court. In 2002 the act was amended which made it mandatory that tribunal will give award in 3 years and in exceptional situations, two more years. This is also one of the reason, the Kaveri award in 2007.
Now they will have to give award in 2 years extendible to one more year in exceptional situations. Total time in earlier process – ( 1year + 5 years = 6 years. Now 1.5 year + 3 years = 4.5 years).
However the proposed bill does not plug the loopholes completely. In 2002, the provision was made that in case parties want clarification, they can appeal for it within 3 months. However, it does not provide time limit within which tribunal will provide clarification.
Implementation of the award
This is the biggest challenge. Despite the act providing that award will be treated at par with the decree or order of Supreme Court and it is the responsibility of the Union govt. to implement it, neither union govt. nor state govts. implement the award. Even after the award of Kaveri tribunal, it has not been implemented, Tamil Nadu approached Supreme Court, Supreme Court directed Manmohan Singh govt. to constitute the authority. Authority was constituted under the leadership of Prime Minister. Even then nothing was implemented on ground.
What is the present status?
Intervention by SC. An example of judicial activism. Up till now, supreme court restrained itself from changing the award of the tribunal. It used to entertain special leave petitions with respect to the irregularity in the functioning of the tribunal. However in Feb 2018, for the first time SC changed the award itself.
Highlights of the judgement.
1| It has decreased the share of Tamil Nadu. Increased the share of Karnataka to meet the drinking water requirement of the global city Bangalore.
2| It has directed that the availability of groundwater will also be taken into account.
3| It declared inter-state rivers as national assets.
4| Priority to be given to the needs of drinking water.
5| It rejected the doctrine of historical rights.
6| It has directed the govt. to implement the decision within 6 weeks.
Union government kept on delaying because of Karnataka elections. With the direction of Supreme Court, union govt. has brought the notification to constitute the Kaveri management authority. It will be a two tier body. The first tier will be the management body. Second will be the regulatory committee which will keep watch on ground level situation.
Above situation shows that even after Supreme Court’s intervention, it is not necessary that state governments will implement the award or union government will show the political will.
The present bill makes one more change – award becomes enforceable from the date it comes from the tribunal. Why this amendment? 1| Earlier it was not clear as to award becomes enforceable from which date?
Case study of Kaveri.
The agreement between the state of Madras and State of Karnataka (Mysore) entered into 1924 was to expire in 1974. Hence govt. of Tamil Nadu proactively approached to the union govt. in 1970 to constitute the tribunal. It took 20 years for union govt. to constitute the tribunal in 1990, that too when they approached SC.
Since tribunal was constituted with lot of delay, Tamil Nadu demanded that tribunal gives interim award. Tribunal denied, Tamil Nadu approached Supreme Court after which they gave interim award.
Karnataka held that it is not under obligation to implement interim award. Tamil Nadu approached to the Supreme Court. Supreme Court directed Karnataka to implement the award.
Karnataka held that it is under no obligation till award is not published in Gazette. Tamil Nadu approached Supreme Court. Only then Union govt. published the award in the Gazette. Chief Minister of Karnataka called for Bandh. Chief minister of Tamil Nadu Jayalalitha sat on fast. Local violence. Some farmers committed suicide. Hence the proposed amendment ends the requirement for publication.
IN 2007 the tribunal gave its final award. It was later challenged in Supreme Court, which gave its final verdict in 2018.
Case study from North Indian states. (Sutlej Yamuna Link Canal)
In 1960, Indus water treaty with Pakistan adversely impacted Punjab, an agrarian state.
1966, Haryana was carved out and demanded share in water of Sutlej. Punjab denied because Sutlej does not go through Haryana.
Water became one of the issue in Khalistan movement. Union govt. intervened, proposed to link canal, made two more states a party -Delhi and Rajasthan.
Rajiv Longowal agreement 1985 led to the establishment of a tribunal. Tribunal reduced the share of Punjab. It became so controversial that award has not been published in the gazette till date.
In 2004, unprecedented step by Punjab assembly terminating all agreements with all states.
Union govt. referred the matter to Supreme Court under Advisory Jurisdiction to examine the constitutional validity. In 2016, SC gave its advisory opinion. The act is unconstitutional.
Since elections were due in 2017, the then govt. of Punjab took another unprecedented step – it de-notified the acquired land for the construction of the link in Punjab. Started returning the acquired land.
Haryana approached SC. Haryana had completed its side of the link. It had give advanced cheque to the Punjab govt. Punjab govt. has returned the cheque.
Besides inter-state water disputes, there are many other inter-state disputes like territorial disputes e.g. Between Maharashtra and Karnataka over Belgaum Dist., Over Abohar Fazilka town between Punjab and Haryana.
There are disputes between the developed states and Bimaru states.
At times, tensions erupt because of son of soil movements.
DEAR ADMIN, please update the terms of Chairperson, vice chairperson and other members of tribunal. Its 4 years now