Federal polity involves the setting up of dual governments and division of powers. But the success and strength of the federal polity depends upon the maximum of co-operation and co-ordination between the Centre and the States.
The executive power of the Union extends only through those matters which are mentioned in the Union List and over which the Parliament has legislative powers. In addition, the Union, can exercise administrative control over the state through the following methods:
» Articles 255 to 256 seek to regulate administrative relations between the Union and the States. The Constitution of India seeks to achieve a smooth working relationship between the two levels. It provides that the executive powers of the State Government are to be exercised in such a way as to ensure compliance with the laws made by Parliament.
» Article 257 provides that the executive power of every State shall be so exercised as not to impede the exercise of the executive power of the Union and the Union may issue necessary directions in that regard and for protection of railways and maintenance of means of communication of national or military importance. Any expenditure incurred by the State for the purpose of fulfilling Central directives is to be reimbursed by the Centre to the States.
» Under Article 258, the President may with the consent of State Government entrust to that Government or its officers functions in relation to any matter to which the executive power of the Union extends.
» Under Article 258 A the Governor of a State may with the consent of the Union Government entrust to that Government or to its officer’s functions in relation to any matter to which the executive power of the State extends.
» Under Article 261, it directs that full faith and credit shall be given to public acts, records and judicial proceedings of the Union and the States in all parts of the Indian territory, which adds a lot to the smooth working of the Union-State relations.
» Under Article 262, Parliamentary control over inter-State rivers and provisions for adjudication of any inter-State water disputes have taken away a whole host of possibilities of friction between the Union and the States themselves.
» Article 263 empowers the President to establish an inter- State council to inquire into and advise upon inter-State disputes between the Union and the States and make recommendations for better co-ordination of policy and action.
» Major contentious issues having a bearing on administrative and political relations between the Centre and the States are Article 356, role of the Governor, and the Use of Parliamentary forces.
» Article 356: Emergency provisions contained in Part XVIII of the Constitution are one of the most important provisions with profound influence on the development of India’s federal policy. Article 356 provides that if the President is satisfied that a situation has arisen in which the government of a State cannot be carried out in accordance with the provisions of the Constitution, he may by proclamation impose an emergency resulting in the imposition of President’s rule. In the Constituent Assembly Dr. Ambedkar referred to these provisions as ‘safety valves’ and expressed the hope that there would be no occasion to use them. Unfortunately, it has often been misused by political parties to topple State governments which are not promoting the interest of the ruling party at the Centre.
An example of the blatant misuse of this Article was in 1977 when the Janata Party came to power and dissolved the assemblies of all States where the Congress party was in power and ordered fresh elections to as many as nine state assemblies. In the 1980 mid-term poll when Indira Gandhi came back to power, she dismissed exactly nine state assemblies where non-Congress governments were in power.
The Congress dominance under Mrs. Indira Gandhi was the period when most controversial cases of partisan toppling of opposition governments in State were reported. The transformation of the party system, from single party dominance to a multi-party configuration coupled with judicial interventions in the matter, has appreciably reduced the misuse of Article 356.
Some political parties and State governments had earlier demanded the repeal of Article 356 and the abolition of the office of the Governor. In the changed context such demands are now seldom heard. Neither the Sarkaria Commission nor the deliberations in the Inter-State Council have supported such extreme ideas. All these panels have reiterated a faithful adherence to the letter and the spirit of the Constitution.
A landmark judicial verdict in this context is the S.R. Bommai Case (1994) in which the Supreme Court departed from the past practice of its reticence to judicially review Presidential proclamations and declared the Centre’s action under Article 356 subject to judicial review.
To circumvent the Constitutional provision barring judicial inquiry into the advice received by the President from his Cabinet, the Supreme Court ingenuously argued that it was not scrutinizing the merit of such advice, only examining whether the reasons given for dismissal of a State government bear any relationship with the factual situation.
The formation of coalition or minority government in New Delhi after 1989 has added a new dimension to the controversy surrounding the President’s Rule in States.
The political party’s especially regional parties, extending support to the Union Government from the parliamentary floor without joining the Cabinet, have often resorted to putting pressure on the Union government for dismissing a State government to which these parties may be opposed to in their respective States.
For example, in recent months the regional allies of the BJP minority government, such as AIADMK, Trinamool Congress and Samata party have been demanding the dismissal of the DMK, Left Front and RJD governments in Tamil Nadu, West Bengal and Bihar respectively.
The Vajpayee government has resisted these pressures partly due to the crises-cross pattern of coalitional politics in the country, partly due to the lack of the majority of the ruling coalition in Rajya Sabha, and partly due to the fear of Judicial Review.
The Central administrative and political teams sent to observe the law and order situation in these States was well received in Tamil Nadu, lukewarmly received in Bihar and openly opposed in West Bengal.
Sarkaria commission on article 356
In case of Central intervention in a State through President’s rule, the Commission falls back on creating appropriate conventions instead of constitutional amendments curtailing powers of the Governor and of the Union government. It has adopted a similar approach with regard to some other contentious issues such as the reservation of State bills by the Governor for Presidential consideration, and the deployment of para-military forces of the Union in States on public order duties.
Role of the Governor: The institution of the Governor, with its dual role – as the Constitutional head of the State and the representative of the Centre – occupies a significant place in our federal polity.
As the Constitutional head of the State he, unlike the President of India, has certain discretionary powers, taken almost verbatim from the Government of India Act of 1935, which are immune from judicial scrutiny.
As the representative of the Centre, it is his duty to inform the Central government regarding developments in the State and he has to always keep in mind the conflicting claims of the Centre and the State in a given situation and has to balance them in accordance with the Constitution.
This duality of his role makes his position important in the maintenance of a cordial Centre – State relationship. After 1967 when non-Congress governments were formed in many states, tension aggravated as the central government attempted to use the Governors for partisan ends.
The role of Governor in this context became one of the highly contentious issues in Centre-State relations. The main issues of contention relate to the appointment of the governor by the Centre and his partisan role in the formation and dismissal of State governments at the behest of the Centre.
The Governorship is now being treated as a reward for political loyalists who could not be accommodated in the Cabinet and pliable bureaucrats prospecting for post retirement employment. This reduced the Governor to a mere rubber-stamp or agent of the Centre. The Centre in most cases does not observe even appointment of a new Governor. An important instrument of Centre-State relations has thus been seriously undermined.
Both the Administrative Reforms Commission and the Sarkaria Commission in their reports underlined the indispensability of the office of the Governor but were highly critical of the appointment made and of the role of the incumbents.
The Sarkaria Commission in its survey found that the appointments made since independence till October 1984 were misplaced as over 60 percent of the Governors had taken active part in politics, many of them immediately prior to their appointment.
The Commission made a series of recommendations pertaining to the appointment and the conduct of the Governors. As for appointment, it was recommended that the appointee should be eminent in some walk of life, should be from outside the State, should be detached person not too intimately connected with State politics, and should not have taken too great a part in politics generally and particularly in the recent past. It was also recommended that the appointment should be always made after consultation with the Chief Minister of a State.
The Commission cited the Constituent Assembly debates that also clearly expressed this expectation as for the role of the Governor, the Sarkaria Commission observed that in the submissions made before it, the State governments were unanimous in suggesting that whether the ministry has lost majority support in the legislative assembly should be decided on the floor of the House rather than in the Raj Bhavan and that the Chief Minister should be given a reasonable opportunity to establish such majority. The Commission lent its weighty support to this view in its recommendations.
In the recent decades, there has been a perceptible decline in the misuse of Article 356 by the Centre. However, some recent cases of the exercise of governmental power have brought to notice some different kinds of problems, the full implications of which have not crystallized.
A Governor in one of the North-Eastern states was dismissed on account of his differences with the Centre. A Governor of Tamil Nadu resigned protesting against the dismissal of the DMK government in 1991 by the Congress supported SJP minority government headed by Chandra Shekhar, and one of the recent Governors in Uttar Pradesh, Romesh Bhandari installed an all-defector-government headed by Jagdambika Pal, summarily dismissing the BJP government headed by Kalyan Singh.
This he did in violation of all constitutional and conventional norms on the pretext of stopping horse- trading in the assembly by the BJP government, which incidentally rode back to power, for Pal could not muster majority. Ironically, the Gujarat government at the Centre followed an ostrich’s policy over the whole episode.
In the absence of any advice from his Cabinet, President K.R. Narayanan faxed an advice (not directive) to the Uttar Pradesh Governor to exercise restraint in precipitating dismissal of the BJP government, which was not heeded by the Governor.
Use of Central Paramilitary Police Forces: Maintenance of law and order is primarily a state subject and to achieve this goal they have their own agencies of the Central government to ensure law and order such as CRPF, BSF, CISF, etc.
The maintenance of ‘parallel’ agencies by the Central Government is a very ‘unusual’ feature of the Indian federal system. The states argue that since public order is a subject in the State List in the Constitution, so the setting up of central police forces is an encroachment on their jurisdiction.
The Centre, however, argues that these forces are required to protect Central government’s properties and installations. In more recent years, the State have got into the habit of inviting deployment of central police forces even for the basic law and order work, to say nothing of special occasions such as election duty, natural disaster, and communal riots.
The clamour of the States against the deployment of these forces in their respective territories has now considerably receded. The States, however, continue to be restive for a greater share in the divisible tax resources for more effectively exercising the responsibilities and obligations that the Constitution has placed upon them.
All Indian Services: Another problematic area between the Centre and States is the continuation of All India Services. The Sarkaria Commission sought the views of the State Governments on
(1) Whether All India Services have fulfilled the expectations of the Constitution makers
(2) Whether the State governments should have greater control over them.
The Major Recommendations of the Commission are as Follows;
(1) The AIS continues to be one of the premier institutions for maintaining the unity of the country and undoubtedly the members of the AIS have shown themselves capable of discharging the roles that the constitution envisaged for them.
(2) Any move to disband the AIS or to permit a state government to opt out of the scheme must be regarded as retrograde and harmful to the larger interest of the country.
(3) The present accent on generalism should yield place to greater specialisation in one or more areas of public administration.
(4) There should be an element of compulsion in matters of deputation of officers of AIS to the union.
(5) There should be regular consultations on the management of AIS between the Union and the State Governments.
(6) The Union Government may persuade the state governments to agree to the constitution of Indian Service of Engineers, the Indian Medical and Health Service and AIS for education.