Inter state council effective solution for centre-state problems
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This document discusses the need for establishing an Inter-State Council in India to address problems that arise between the central government and state governments. Some key points: 1. Centre-state relations are an important issue in India's federal system, as powers are divided between the two levels of government, leading to occasional disputes and tensions. Existing mechanisms for resolving issues are seen as ineffective. 2. Article 263 of the Indian Constitution allows for the establishment of an Inter-State Council to inquire into and advise on disputes between states as well as investigate subjects of common interest and make recommendations. However, such a council has not yet been formed. 3. The document argues there is a strong case for establishing a permanent Inter
Inter state council effective solution for centre-state problems
- 1. Inter-State Council: Effective Solution For Centre-State Problems CHANDRA PAL* In a federal system where powers are divided between two levels of governments, some differences, problems and disputes are bound to occur. Hence the relationship between the Centre and States in the federal system remains always a sensitive mat- ter) In India, Centre-State relations are getting the national attention 2 these days which they deserve at long last. The deve lopments in Punjab and Assam, the conference of the Chief Mini- sters of the four Southern States - Andhra Pradesh, Karnataki, Tamil Nadu and Pondicherry (-) and Srinagar conclave of over 15 political parties pieced to gather make it ample clear that the pro- blem of Centre-State relations in Indian federation in early eighties LL.M., Ph.D. (Kurukshetra), Associate Professor of Law, Hima- chal Pradesh University, Simla. See for Indian federal system, Chandra Pal, "The Problem of State Autonomy: Emerging Trends", V Cochin University Law Review, 331-352 (1981); Chandra Pal, "Greater Fiscal Autonomy: A Justified Demands of States", VII Cochin University Law Review, 233 ,(1983); Armal Ray, "Form Consensus to Confrontation: Federal Politics in India", Economic and Political Weekly, Vol. xvii, No. 40, 1619 (1982); Inder Malhotra, "Centre-State Relations: Need for A Sense of Pro- portion", Times of India, April 1, 1983, p. 8; Farooq Abdullah, "Reviewing Centre-State relations", Indian Express, July 9, 1983, p. 6. See for example, the leaders of 15 opposition political parties met in Srinagar from October 5 to 7, 1983, to draft the document for reforms in Centre-State relations, Tribune, October 6, 1983, p. 1. The Union Government also has appointed Sarkaria Commission on Centre-State Relations.
- 2. CHANDRA PAL 383 has come up against new challenges. 3 Furthermore, the appoint- ment of the Sarkaria Commission by the Centre to examine the working of Centre-State relations within the existing constitu- tional framework too suggest that a fresh look needs to be given to the problem of Centre-State relations. It is a well known fact that the two levels of governments in a federal system 4o generate and encounter occasions of discords and disagreements. Hence in view of such inevitable discords and disagreements, howsoever detailed may be the de- marcation of functions between the two levels of government, a need for suitable machinery to discuss and resolve them is felt in all federations, and if the Constitution does not provide for it, then some extra-constitutional means are brought into practice to fill the gap. The U.S. Constitution, being the oldest federal constitution in modern times, does not specifically provide for an institution to examine and resolve federal-state pro- blems, but there are extra-constitutional bodies 4 in existence which sort out such problems. The Indian Constitution is the most detailed one and legi- slative powers have been neatly enumerated in Union, States and Concurrent lists, 5 but this detailed demarcation of legislative powers does not mean that India faces no problems in the field of Centre-State relations. On the contrary, occasions of dis- cord are very frequent and are no less numerous. The Indian Union comprises as many as 22 States which are at varying stages of economic and political development and which have their own persepctives of looking at the problems of State- making, nation-building and development. 6 Yet, there is no See V. D. Chopra, "Reviewing Centre-State Ties", Patriot, April 4, 1983, p. 4. These bodies are: the Council of State Governments, the Governors' Conference, the Inter-Governmental Relations Commission, the National Legislative Conference, the Conference of Chief Justices, etc. For working of these bodies see Chandra Pal, Centre-State Relations and Co-operative Federalism, 41-45 (1983). See the Constitution of India, Schedule 7. S. R. Maheshwari, "Centre-State Relations", The Sunday Statesman- Magazine, October 2, 1977, p. 1.
- 3. 384 COCHIN UNIVERSITY LAW REVIEW 1 83 viable constitutional machinery of standing nature which can resolve disputes between the Centre and one or more States as well as the States inter se. EXISTING CONSTITUTIONAL AND EXTRA-CONSTITUTIONAL MECHA- NISM FOR SOLVING CENTRE-STATE PROBLEMS The Supreme Court under Article 131 has exclusive and original jurisdiction to examine the Centre-State and Inter- State disputes, but not all the problems faced in the field of Centre-State relations can be referred to the judiciary with its rigid procedure of working. The Supreme Court has adjudicated in last 35 years only three cases' of disputes bet- ween the Union and the States. One should also keep in mind th ., t Centre-State problems are, in the ultimate analysis, political p-o'llems, and for resolving them the Supreme Court may also refuse to entertain them. Hence political solutions should be solitzht. The Constitution also envisages a number of other institu- tions to regulate and canalise the forces of federalism, to solve Centre-State and inter-State disputes and to promote co-operative federalism. 8 These other institutions contemplated by the Con- stitution are: the Finance Commission, 9 an authority for Inter- State trade, commerce and intercourse, l0 and an Inter-State Council. " Also, there are in operation some extra-constitutional me- chanisms which may discuss Centre-State problems. One easily recalls the forums like the National Development Council, the Central Council of Health, the Central Council of Local Self- These cases are: West Bengal v. Union of India, (1964) 1 S.C.R. 371; State of Rajasthan v. Union of India, A.I.R. 1977 S.C. 1361; Karnataka State v. Union of India, A.I.R. 1978 S.C. 68. For the meaning of 'co-operative federalism', see L. M. Singhvi, "Co- operative Federalism: A Case for the Establishment of an Inter State Council", Journal of Constitutional and Parliamentary Studies: Special Number, 1969, p. 212; Chandra Pal, supra, n. 4 at 19. See the Constitution of India, Article 280. Id., Article 307. Id., Article 263.
- 4. CHANDRA PAL 385 Government,'2 the Governors' Conference, the Chief Ministers' Conference and other Ministers' Conference which are convened by the Central Ministers corresponding to those functions. An analysis of their working, however, seems to suggest the general ineffectiveness of all of them. 13 In the first place, these existing bodies, including the National Ministers' Conference are of ad hoc nature, convened at the will and convenience of the Central Government. Secondly, they lack even a statutory base where as a body suited for such purposes must as a rule be embedded in our Constitution so that it may command universal respect and attention. Thirdly, the existing machinery for con- sultation between the Union and the States suffer from a con- spicuous lack of interest on the part of the States, which tend to regard them as Centre's contrivances to make them fall in line with Centre's predetermined policies, wishes and pro- grammes. Perhaps an Inter-State Council under Article 263 could provide an effective umbrella for various kind of consultation in different fields and through different means. URGENT NEED FOR ESTABLISHING AN INTER-STATE COUNCIL FOR SOLVING CENTRE-STATE PROBLEMS There is a mounting pressure of public opinion to establish an Inter-State Council under article 263 of the Constitution for solving the Centre-State problems in an effective and co-operative manner. " All political parties except Congress-I party are in favour of establishing an Inter-State Council for resolving the Centre- State tensions." The already existing informal mecha- nisms for solving Centre-State problems are of ad hoc nature However, these two Councils, the Central Council of Health and the Central Council of Local Self-Government are established under Article 263, but these Councils work within a narrow ambit of acti- vity. See Chandra Pal, supra, n. 4 at 205-278. See Inder Jit, "Inter-State Council Needed" Tribune February 15, 1983, p. 4; K. Rangachari, "Inter-State Council - The Limits of In- formal Coaxing," Statesman, August 13, 1983, p. 6. See "The Opposition Conclave Moots Inter-State Council," Tribune, October 9, 1983, p. 1.
- 5. 386 COCHIN UNIVERSITY LAW REVIEW and as discussed earlier have proved ineffective for the pur- pose. Hence there is an urgent need for establishing an Inter- State Council for solving the problems of Centre-State relation- ship. 16 An Inter-State Council provided for in the Constitution would be more effective institutional agency in terms of its capacity to go into contentious questions in a manner which would command the confidence of all concerned, facilitating and fostering the gathering and marshalling of all-India consensus. The main purpose of the Inter-State Council would be to achieve co-ordination between the Centre and the States. The power and initiative for constituting the Council is vested in the President, and this signifies the constitutional conception of the responsibility of the Centre in fostering such co-ordination. An Inter-State Council could thus be the fulcrum of harmony and homogeneity between the Union and the States and States inter se. "The advantage of a single body is that every problem can be viewed by it in the perspective of the whole. This inte- grated look, necessary in fashioning basic policies of national importance, is missing in the dispersed system operative at. present." 17 The contention that the Centre had favoured informal ways of setting Centre-State disputes and hence had kept Article 263 in abeyance so far, seems to be untenable. However, such in- formal methods may have had some success in the case of State Governments belonging to the ruling party at the Centre but the outstanding disputes in respect of States under the rule of The Study team on Centre-State Relations appointed by the Admini- strative Reforms Commission and headed by M. C. Setalvad also strongly recommended for the establishment of an Inter-State Council, see generally, the Report of the Study Team on Centre- State Relationships, Administrative Reforms Commission, 1968, Vol. 1, p. 294; Similarly, the Tamil Nadu Committee Report also makes a strong plea for the establishment of the Inter-State Council, see the Report of the Centre-State Relations Inquiry Committee, Govern- ment of Tamil Nadu, 1971, p. 25. The Report of Study Team, Id., p. 300.
- 6. CHANDRA PAL 387 different parties show that informal coaxing and cajoling pro- vided no real alternatives to formal discussions of problems. However, the Centre may not be wrong in expecting that once set up there will be demands for enlarging the role of the Council to include consultation on any action taken to impose President's rule, the issuing of directives to States, use of Central Security forces and such other matters on which the basis for the Centre's intervention may often be too slender to enable the presentation of a coherent case. The Centre should first be ready to minimise if not wholly abandon some of its dubious methods of bringing the States under its control. Viewed from this angle, Article 263 may well be destined to remain an infructuous provision. (A) Duties of the Inter-State Council Article 263 of the Constitution provides as follows: "If at any time it appears to the President that the public interests would be served by the establishment of a Council charged with the duty of— inquiring into and advising upon disputes which may have arisen between States; investigating and discussing subjects in which some or all of the States or the Union and one or more of the States, have a common interest; or (c) making recommendations upon any such subject and, in particular, recommendations for the better co-ordi- nation of policy and action with respect to that subject, it shall be lawful for the President by order to establish such a Council, and to define the nature of the duties to be performed by it and its organisation and procedure." Thus the provisions of Article 263 are inclusive and com- prehensive. The Constitution does not envisage an executive role for the Inter-State Council. Its ambit would be an admixture of the consultative, cognative, normative and advisory functions.
- 7. 388 COCHIN UNIVERSITY LAW REVIEW The Constitution does not empower the Inter-State Council to adjudicate inter-State disputes, but it would be called upon to inquire into and advise upon such disputes. The findings of the inquiry as well as the advice of the Inter-State Council would be available to the contending States as well as to the Union Government and the Union Parliament. The recommendations and the advice of the Council should be given highest respect and consideration. In addition to this, the Council would also study and investigate subjects of common interest for the States and the Centre and would make recommendations for the better co-ordination of policy and action. The Council would thus pro- vide basic background data for research on federal problems. The Study Team on Centre-State relations appointed by the Administrative Reforms Commission" was also clear that the Inter-State Council could take care of all issues of na- tional importance in which the States are interested. In fact, Mr. M. C. Setalvad, who, as India's Attorney-General, was invited by Mr. Nehru to address the Parliament on certain issues, went one step further. He wanted the proposed Inter-State Council to replace National Development Council, the Chief Ministers' Conference, the other Ministers' Conference and the National Integration Council."The report added: "Besides issues of importance normally taken up in these forums, any other issue of national importance that arises at any time may also be placed before this council." 20 Thus the proposed Council will be wide embracing and will provide a standing machinery for effect- ing consultations between the Centre and the States. (B) Composition of the Inter-State Council—Some Suggested Models As said earlier, the Constitution itself refers to the setting up of an Inter-State Council in Article 263. But the Constitution is silent about the composition of such a Council. As this Article 263 has been invoked on two occasions when the Central See the Report of Study Team, supra, n. 16 at 296. See Inder Jit, supra, n. 14. Supra, n. 18.
- 8. CHANDRA PAL 389 Council of Health and the Central Council of Local Self- Government were established in 1952 and 1954 respectively. Thus the first design of the proposed . Inter-State Council can safely be inferred that a Council under Article 263 should consist of Ministers at the Centre and in the States and, further- more, should be functional in nature. The proposed Inter-State Council is to be seen in its historical persepctive, and as exa- mined in the earlier ' paragraphs, it is to operate as a standing machinery for effecting wide embracing consultations between the Centre and the States. The second blueprint of the proposed all-purpose Inter- State Council is presented by the Study Team on Centre-State Relations appointed by the Administrative Reforms Commission. The Study Team recommended that the Inter-State Council should consist of the Prime. Minister, Central Ministers for Home, Finance, Labour, Food and other subjects in the State and concurrent lists of the Constitution, Chief Ministers or their nominees and any others invited by the Chairman or co-opted by the Council. The Council should be equipped with an appropriate secre- triat which is to prepare and circulate among members the neces- sary papers and notes on items coming up for discussion in its meetings and also to take follow-up action on matters decided by it. But its conclusions are to be advisory only. Furthermore, it should not involve itself in the discussion of inter-State disputes because that "would prevent it from giving full attention to the various problems of national concern which it ought primarily to consider."--' The Study Team also recommended that the Council should not be given a hand in constitutional appoint- ments made by the President such as those of the Chief Justice of India, the Chief Election Commissioner, the Governors, the Auditor-General of India etc. The third blueprint of the Inter-State Council is that sketched by the Administrative Reforms Commission itself in its Report on Centre-State Relations. The Commission 21. The Report of the Study Team, supra, n. 16 at 303,
- 9. 39 0 COCHIN UNIVERSITY LAW REVIEW was in, full agreement with its Study Team on the need for such an inter-State body, but differed with it on almost all other aspects. The Study Team had recommended that once the Inter-State Council was set-up other forums and bodies, like the National Development Council, could also continue to function. It also recommended a different kind of composition of the Council. It is to consist of the Prime Minister, Central Ministers of Home and Finance, the Leader of the Opposition in Parlia- ment and five Zonal Council representatives, one from each. Such other Central Ministers and State Chief Ministers as are concerned with a particular subject under discussion should also be invited to its meetings. In order to make the Council business-like, a small size of composition was preferred. The proposed Council should have broad terms of reference and should be free to discuss and re- solve both the inter-State and the Centre-State differences. While its proceedings are to be treated as secret, its decisions are advisory though these "must be able to carry weight with the Centre and the State governments."22 The Fourth design of an Inter-State Council is presented by the Centre-State Relations Inquiry Committee which the DMK Government in Tamil Nadu had set up in 1969. The Committee recommended the "immediate"23 constitution of the Inter-State Council to be consulted on all matters of "national importance" 24 or which are to affect one or more States. It should also be empowered to discuss every Bill "of national importance or which is likely to affect the interests of one or more States"25 and its views on the drafts of such Bills should be placed, as a rule, before the Parliament at the time of introduction of these Bills. The recommendations of the Council should be "ordinarily binding" 26 on both the Centre and the States. The Council is to Administrative Reform Commission, Report on Centre-State Re- lationship, 1969, p. 33. Report of the Centre-State Relations Inquiry Committee, Madras, Government of Tamil Nadu, 1971, p. 24. Ibid. Ibid. Ibid.
- 10. • CHANDRA PAL 391 consist of the Prime Minister, who is to be its chairman, and the Chief Ministers of all States or their nominees. "No other Mini- ster of all States or their nominees, no other Minister of the. Union Cabinet should be a member of the Council."27 Thus there are these four models of the proposed Inter- State Council. A closer scrutiny would reveal that the proposals of the Administrative Reforms Commission's, Study Team, the Administrative Reforms Commission and the Centre-State Re- lations Inquiry Committee are basically elaborations and inter- pretations of the skeletal provisions of Article 263 of the Con- stitution. The purpose of Article 263 lay in the desire for co- ordination and co-operation in regard to the subjects falling within the jurisdiction of the States. As discussed earlier, the Study Team visualized a very large- sized Council with apparently multi-purpose functions but pre- cluded from discussing inter-State disputes as well as constitu- tional appointments made by the President. The functions of the Council would look incomplete and unrealistic if it is not to dis- cuss disputes, however distasteful these may sound. Coming to the Administrative Reforms Commission recommendations, it seems to undermine even the very existence of the States by substituting their Chief Ministers by the five Zonal Council spokesmen. Keeping the Chief Ministers out from the Inter-State Council is to cripple the Council at the very start. Tmail Nadu's Centre-State Inquiry Committee has blown Article 263 up a bit bigger and makes proposal for a Council which apparently is no less than super Cabinet of Indian Union whose decisions would be binding on both the Centre and the States. CONCLUSION From the foregoing discussion the conclusion emerges that no body can dispute or deny the need for a standing machinery to examine the differences which may arise between the Centre and one or more States and the States inter se. Hence now is the most opportune time for the establishment of the Inter-State 27. Ibid.
- 11. 392 COCHIN UNIVERSITY LAW REVIEW M3 Council. It should consist of the Prime Minister and the Chief Ministers of States. The Prime Minister should be the Chairman but the Council should also have Vice-Chairman, an office which should annually rotate among the Chief Ministers according to the alphabetical order of the names of their States. The Council should be regular in holding its meetings, preferably before the start of every parliamentary session. It should have a secretariat competent enough to prepare notes and papers on matters com- ing up in its meetings. The Council cannot but have an advisory status under our system of government but a convention should also be evolved to accept its recommendations. Among the pre- requisities of its success are the confidence in it and the attitudes of give and take from all sides.