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LL.M-I
PAPER II –
INDIAN CONSTITUTIONAL LAW: THE NEW
CHALLENGES.
Index
1. Federalism 1.1 Creation of new states 1.2 Allocation and share of resources - distribution of grants in aid 1.3 The inter-state disputes on resources 1.4 Rehabilitation of internally displaced persons. 1.5 Centre's responsibility and internal disturbance within States. 1.6 Directions of the Centre to the State under Article 356 and 365 1.7 Federal Comity: Relationship of trust and faith between Centre and State. 1.8 Special status of certain States. 1.9 Tribal Areas, Scheduled Areas. **2. "State”: Need for widening the definition in the wake of liberalisation.
- Right to equality: privatisation and its impact on affirmative action.
- Empowerment of women.
- Freedom of press and challenges of new scientific development** 5.1. Freedom of speech and right to broadcast and telecast. 5.2. Right to strikes, hartal and bandh. 6****. Democratic process 6.1. Nexus of politics with criminals and the business. 6.2. Election 6.3. Election commission: status. **6.4. Electoral Reforms
- Right of minorities to establish and administer educational institutions** **and state control.
- Secularism and religious fanaticism.**
UNIT I
Federalism
1.0 Objectives 1.1 Introduction 1.2 Topic Explanation 1.2.1 Creation of new states 1.2.2 Allocation and share of resources - distribution of grants-in-aid 1.2.3 The inter-state disputes on resources 1.2.4 Rehabilitation of internally displaced persons. 1.2.5 Centre's responsibility and internal disturbance within States. 1.2.6 Directions of the Centre to the State under Article 356 and 365 1.2.7 Federal Comity: Relationship of trust and faith between Centre and State. 1.2.8 Special status of certain States. 1.2.9 Tribal Areas, Scheduled Areas. 1.3. Questions for self learning 1.4. Let us sum up 1.5. Glossary 1.6. References
1.0 Objectives
- To make students aware of the nature of the Indian Constitution.
- To examine whether the Indian Constitution possesses the characteristics of federal government.
- The federal principle is predominant in the Federalism. It comprises a complex government mechanism for the governance of the country. It seeks to draw a balance between the forces working in favour of concentration of power in the centre and those urging a dispersal of it in number of units. The framer of Indian Constitution attempted to avoid the difficulties faced by the federal constitution of U.S.A., Canada and Australia and incorporated certain unique features in the working of Indian Constitution. Thus our Constitution contains novel provisions suited to the Indian conditions. The doubt which emerges about the federal nature of the Indian Constitution is the powers of intervention in the affairs of states given to the Central Government by the Constitution. According to Ware– “in practice the constitution of India is quasi-federal in nature and not strictly federal” Sir Jennings was of the view that India has ‘a federation with strong center policy’. In the words of D.D. Basu – “The Constitution of India is neither purely federal nor unitary but is a combination of both. It is a Union or a composite of a novel type”. The Indian Constitution is not only regarded as federal or unitary in the strict sense of terms. It is often defined to be quasi federal in nature also. Through the Constitution, emphasis is laid on the fact that India is a single united nation. India is described as a Union of states and is constituted into a Sovereign, Secular, Socialist, Democratic and Republic. The constituent Assembly being aware that notwithstanding a common cultural heritage without political unity the country would disintegrate under the pressure of various forces therefore it addressed itself to the immensely complex task of devising a union with a strong centre. Article 1 says that – India will be
union of states. The constitution thus postulated India as Union of states and consequently the existence of federal structure of governance for this Union of states becomes a basic structure of the Union of India. Dr. Ambedkar, the principal architect of the constitution observed that – the use of word Union is deliberate. The drafting committee wanted to make it clear that though the Idea was to be a federation, the federation was not a result of an agreement by the states to join in the federation and that federation not being the result of an agreement no state has right to separate from it. Though the country and the people may be divided into different states for convenience of administration the whole country is one integral whole.
1.2 Topic Explanation 1.2.1. Creation of New States Under Article (1) India has been characterized as a ‘Union of states, Union territories and any other territories’ that may be acquired by the government of India at any time. Article 1(3)-Parliament’s power to reorganise states. a) Admission of New states- Article 2 Under Article 2 of the Constitution Parliament is empowered to enact a law to admit into the union or establish, new states on such terms and conditions as it thinks fit. Thus Article 2 gives two powers to the parliament- (i) To admit new states into the Union. (ii) The power to establish new states. The first refers to the admission of states which are already in existence and are dully formed. The second refers to the admission and formation of a state which was not in existence before.
The Indian Constitution empowers the parliament to alter the territory or names etc of state without their consent or concurrence. That means new state can be formed by law passed by simple majority. Thus it is clear that the very existence of a state depends upon the sweet will of the central government. Parliament may form a new state or alter the boundaries etc. of existing states and thereby changes the political map of India.
1.2.1.3. Cession of Indian Territory to foreign country Under Article 3(c) Parliament may by law increase or diminish the area of any state. The diminution of the area of any state occurs where the part of the state is separated. Parliament has power to cut away the entire area of a state to form a new state or to increase the area of any state. Supreme Court in-In re by president of India^1 It was held that the — of parliament under Art.3 to diminish the area of any state does not cover ceding of Indian territory to a foreign state. Hence the court held that the parliament had no power. Under Art 3 (c ) to make a law to implement a Berubari agreement (this agreement was entered into with the government of Pak and India). However it could be only be implemented by an amendment of the constitution in accordance with Art. 368.
1.2.2. Allocation and share of resources distribution of grant-in-aid Inter-governmental financial relationship in a federation is a vital or even critical matter. The way in which the relationship between center and states
(^1) AIR 1960 SC 845
function affects the whole content and working of federal polity finance is an essential and pre-requisite of good government In the words of D.D. Basu.-“No system of federation can be successful unless both union and states have at their disposal adequate financial resources to enable them to discharge their respective responsibilities under the constitution.” In Canada and Australia the sources of revenue allotted to the units are so meager that they have to be substantially satisfied by centre grants. In India the scheme of distribute of sources of revenue between the Centre and states is based on the scheme laid down in the Government of India Act 1935. The constitution of India provides for the appointment of finance commission under Art. 280 which itself whose very unique feature of flexibility. Taxing powers are divided between the centre and states. The constitution provides separate provisions relating to taxation by centre and states. The taxes enumerated in the union List (List I) are leviable by centre exclusively while those mentioned in the state list (List II) are leviable by the state exclusively.Art. 265- Article 256 says that no tax can be levied or collected except by the authority of law. Grants-in-aid to the states serve two purposes-
- Through grant-in-aid the central Government exercises strict control over the states because grants are granted subject to certain conditions. If any state does not agree to the condition the Central Government may withdraw the grants. and
- It generates the centre state co-ordination and co-operation if a state wants to develop its welfare schemes for the people of the state it may ask for the financial help from the centre.
- Taxes for the purpose of Union : It says that if the parliament at any time increases any of the duties or taxes mentioned in Art. 269 and 270 by imposing a surcharge, the whole proceeds of any such surcharge shall from part of the consolidated fund of India.
- Grants-in-aid- The constitution provides for three kinds of grants-in-aid to the states from the Union resources- Under Art. 273 – grants-in-aid will be given to the states of Assam, Bihar, Orissa and west Bengal in lieu of export duty on the jute products. The sums of such grants are prescribed by the president with the consultation of finance commission. The sums will be given to the states for the period of 10 years from the commencement of the constitution. Under Art. 275- empowers parliament to make such grants, as it may deem essential to the states which are in need of financial assistance. The constitution also provides for special grants given to the states which undertakes schemes of development for the purpose of promoting the welfare of the scheduled tribes or raising the level of administration of the scheduled areas. A Special grant to Assam is given for this purpose. Under Art. 282 both the Union and States make grant for any Public purpose even if it relates to a subject over which it cannot make laws. The central government can under this Article make grants to hospitals or to schools. Under Art. 271 Parliament is empowered to increase any of the duties or the tax mentioned in Arts. 269 and 270 by a surcharge for the purposes of the union and entire proceeds of any such surcharge shall go to the Union and from part of the consolidated fund of India according to Art. 274 no Bill which imposes or varies any tax or duty in which states are interested or which varies the meaning of ‘agricultural income’ or which affects the principle of distribution of moneys to
states or which imposes a surcharge for the purpose of Union, shall be introduced or moved in either house of parliament except on the recommendation of the president. Taxes for the purposes of States- Article 276 and 277 save the authority of the state to levy taxes on subject now forming part of Union List. Thus taxes which are being levied by a state or a Municipality or other local authority not withstanding those taxes are mentioned in the union list continue to be levied by those authorities until parliament by law makes contrary provisions. Art. 276 empowers the states to impose taxes on professions, trades callings and employment for the benefit of the state or of municipality district board, local boards or other local authorities. But the provisions of Art.277 does not extend to taxes levied under a law passed after the constitution came into force. No other federal constitution makes such elaborate provisions as the constitution of India with respect to relationship between union and states in the financial field. In fact, by providing for the establishment of finance commission for the purpose of allocating and re-adjusting the receipts from certain sources the constitution has made an original contribution in this extremely complicated aspect of federal relationship.’
1.2. 3. The Inter-state dispute on resources (Relevant Arts. 262, 263 and 131 of Constitution) The supreme court under article 131 of the constitution has original jurisdiction in any dispute between the Government of India and one or more states. between the Government of India and any state or states on one side and one or more other states on the other and between the two or more states. But other
disputes by the supreme court. But Art. 262 provides therein may be excluded by the parliament from the purview of the Supreme Court. Water is a state subject as per Entry 17, List II of the Constitution. The river Boards Act, 1956 was enacted by the parliament under entry 56, List I for establishing River boards for the purpose of regulation and development of Inter- state rivers and river valleys. The power and functions of such board are- a. To advise the governments – integrated on any matter relating to the regulation or development of a specified river or river valley. b. To advise them to resolve their dispute by co-ordination of their activities and so on. Under Act 262 the parliament has also enacted, the interstate water dispute act 1956 for adjudication of dispute relating to the use distribution or control of water of inter-state reveres and river-valleys among concerned state governments. This act empowers the (intra) Government to setup a Tribunal for the adjudication of such disputes. The decision of tribunal shall be final and binding on the parties to the dispute. Neither the supreme court nor any other court shall have the jurisdiction in respect of any water dispute which may be returned to such a Tribunal under that Act. The Tribunal submits its report to the central government which on publication becomes binding on the parties concerned. A matter referable to a river board is not to be referred to the Tribunal. A lacuna in the scheme of Inter-state water Dispute Act. Is that it does not lay down principles or guidelines to be followed by the Tribunal. That is why several disputes concerning Inter-state river have remained pending for longtime river have remained pending for longtime among the various states. and surprisingly the machinery provided by the Acts has not been used effectively.
Further the centre has also recently created more bodies to promote river water development. In the matter of – Cauvery water Disputes Tribunal This case constitutes an import judicial pronouncement in the area of Indian federalism. The matter came before the supreme court for an advisory opinion by the way of reference by the president under Art. 143 of the constitution. Facts- Tribunal was appointed by the central government to decide the question of waters of river Cauvery which flows through the states of Karnataka and Tamil Nadu. The Tribunal gave an interim order in June 1991 directing the state of Karnataka to release a particular quantity of water for the state of TamilNadu. The Karnataka government- resented the decision of the Tribunal and promulgated an ordinance empowering the government not to honour an interim order of the Tribunal. The Tamil Nadu government protested against the action of the Karnataka Government. Hence the reference was made by the president to the Supreme Court. Held – The court held that the Karnataka Ordinance was unconstitutional as it nullifies the decision of the Tribunal appointed under the central Act Viz the Inter-state water Dispute Act. 1956 which has been enacted under Art. 262 of the constitution. The ordinance is allow against the principles of the rule of law as it has assumed the role of a judge in its own cause. The Act also had an extra- territorial operation in as much as it interfered with the equitable rights of TamilNadu and Pondicherry to the cavery Waters. The supreme court criticized the Karnataka Act. as being against the basic tenets of the rule of law” In the another case of State of Hariyana V/s State of Punjab
communities had carried unfair share or the burden for so called national development. Most of these tribal people were affected duet to either construction of irrigation projects or due to mining in forest areas. Though they are the rightful owners of forest resources, are pushed out of forests shattering their life and livelihood. Until 2004, there was no broad policy that could guide the rehabilitation efforts or state sponsored projects in irrigation, power mining etc. Different State Governments implemented resettlement and rehabilitation in their own way and on case to case basis. Past rehabilitation experiences in various projects reveal that they are for from satisfactory. In several cases, project displaced people have been living in poverty living without basic amenities even after 25 yrs. Of relocation to settlement areas. In spite or constitutional right to life, project affected people are often coerced forcibly displaced even before providing minimum resettlement and rehabilitation facilities.
There are three types of displacement and magnitude- a) Disaster Related Displacement b) Development Related Displacement’s c) Conflict Induced Displacement Let us discuss them one by one- a) Disaster Related Displacement - “India is vulnerable in varying degrees to a large number of natural as well as man-made disasters- 58.6% of the landmass is prone to earthquakes of moderate to very high intensity, over 40 million hectares (12% of land) is prone to floods and river erosion of the 7,516 Km. long coastline, close to 5,700 Km. is prone to
cyclones and tsunamis, 68% of the cultivable area is vulnerable to draught and avalanches. Fire incidents, industrial accidents and other manmade disasters involving chemical, biological and radioactive materials are additional hazardous which have understood the need for strengthening mitigation preparedness and response measure” Disaster risks in India are further compounded by increasing vulnerabilities. These include the over-growing population, the vast disparities in income, rapid urbanization, increasing industrialization development within high- risk zones, environmental degradation, climate change etc. clearly, all these point to a future where disasters seriously, economy and its sustainable development natural disaster induced displacement has become a major H.R. (Human Right) issue in recent times. Such types of displacement precipitate the socio-economic problems or displaced persons and affect their shelter, livelihood lives tack etc. Following are some of the important cases which National Human Right Commission received complaints of displacement are acted Sue-motto to readdress violations of H.R. –
- Supreme cyclone that struck the coastal districts of Orissa in act 1988.
- Gujarat earthquake that devastated large areas of Gujarat in January 2001.
- Tsunami, which hit the coastal India in Dec. 2004
- East Quack in Jammu and Kashmir in 2005 b) Development Related Displacement- Mega development project like construction or domes, industries, highways and reads have resulted in forced displacement of the people. It has been found that usually it is the poor people who face the consequence of such projects wore because their livelihood, habitat and assets are affected. Where involuntary resettlement has received public attention, either through NGOs or media
ii) Land Acquisition Act 1894 – Is the primary legislation that provides for acquisition of land s3(7) define public purpose to include carrying out any educational, housing health or slum clearance scheme the provision of any premises or building for locating a public office, the provision of land for residential purposes to the poor or landless or to persons residing in areas affected by natural calamities and so on. It include provision for compensation (sec. II) and provides for recourse to legal remedies (sec.18) iii) National Rehabilitation and Resettlement Policy 2007 – In order to solve issues arising out or policies of economic liberalization, the National policy on Rehabilitation and Resettlement 2003 has been reviewed and revised. The revised policy of 2007 has comes into force from October, 2007. The new policy is applicable to all affected persons and families whose land property or livelihood are adversely affected by land acquisition or by involuntary displacement of a permanent nature due to any other reason. The objective of policy is to minimize displacement of people and promote non-displacing or least- displacing alternatives.
1.2.5. Center’s Responsibility and Internal Disturbance within States A notable feature of the Indian Constitution is the way in which the normal peace-time federation can’t be adopted to an emergency situation. The framers of constitution felt that, in an emergency, the centre should have overriding powers to control and direct all aspects of administration and legislation throughout the country.
The constitution envisages three types of emergencies:- i) Emergency arising from threat to the security of India. ii) Break down of constitutional Machinery in a state. iii) Financial Emergency. Proclamation of emergency is serious matter as it disturbs the normal fabric of the constitution and adversely affects the rights of the people. So it should be issued only in exceptional circumstances. Art. 355 deals responsibility when there is internal disturbance within the state. Center’s Duty to protect the States- Art. 355. imposes a twofold duty on the Center- i) To protect every state against external aggression and internal disturbance. ii) To ensure that the government of every state is carried on in accordance with the provisions of the constitution. Such provisions are also found in other federal constitutions that are in American and Australian Constitution. But in America and Australian the centre acts only when the request made by states. While there is no such pre-condition under Art. 355. The center can thus interfere even armed without state’s request. Further it the Government state is not carried on in accordance with the provisions of constitution. Then center can take over the government of state under Art. 356 of the constitution on the ground of failure of constitutional Machinery in that state. In other federations. However, the center cannot do so. The word ‘aggression’ has been constructed to be a word of very wide import. It is not limited to only war. There are many acts which cannot be termed as war. A bloodless aggression from a vast and incessant flow of millions of human beings forced to flee in to another state could constitute aggression under Art. 355.
