This article deals with ‘State Public Service Commission– Indian Polity.’ This is part of our series on ‘Polity’ which is important pillar of GS-2 syllabus . For more articles , you can click here.
Introduction
In each Indian state,
there exists a State Public Service Commission (SPSC), which operates in a
similar capacity to the Union Public Service Commission (UPSC) at the central
level. The constitutional provisions governing the SPSC, outlined in Articles 315
to 323 within Part XIV, mirror those governing the UPSC.
Composition of SPSCs
The State Public Service Commission (SPSC) comprises a Chairman and additional members appointed by the Governor of the respective state.
The Constitution does not specify the strength of the Commission but has left the matter to the discretion of the Governor.
No qualifications are prescribed for the Commission’s membership except that one-half of the members of the Commission should be such persons who have held office for at least ten years either under the Government of India or under the Government of State.
The Constitution also empowers the Governor of the State to determine the conditions of service of the Chairman and members of the Commission.
Members of the Commission, including the Chairman, serve a tenure of six years or until they reach the age of 62, whichever is earlier (in the case of UPSC, the age limit is 65). However, they can relinquish their offices at any time by addressing their resignation to the Governor.
Removal
Although the Governor appoints the Chairman and members of the SPSC, they can be removed only by the President (and not by the Governor). The President can remove them on the same grounds and in the same manner as he can remove a Chairman or a member of the UPSC.
Independence
Similar
to the provisions outlined for the Union Public Service Commission (UPSC), the
Constitution has established specific safeguards to uphold the independence and
impartiality of State Public Service Commissions (SPSCs).
Chairman or a member of a SPSC can be removed from office by the President only in the manner and on the grounds mentioned in the Constitution. Therefore, they enjoy the security of tenure.
Although determined by the Governor, the conditions of service of a Chairman or a member can’t be varied to their disadvantage.
Expenses of SPSC are charged on the Consolidated Fund of the State (outside the purview of the State Legislature).
The Chairman of an SPSC (on ceasing to hold office) is eligible for appointment as the Chairman or a member of the UPSC or as the Chairman of any other SPSC, but not for any other employment under the Government of India or a state.
A member of an SPSC (on ceasing to hold office) is eligible for appointment as the Chairman or a member of the UPSC, or as the Chairman of that SPSC or any other SPSC, but not for any other employment under the Government of India or a state.
The Chairman or a member of an SPSC is ineligible for reappointment to that office (that is, not eligible for a second term).
Functions
SPSC performs all those
functions in respect of the state services as the UPSC does in relation to
the Central services
SPSC presents, annually, to
the Governor a report on its performance. The Governor places this report
before both Houses of the state legislature, along with a memorandum
explaining the cases where the advice of the Commission was not accepted
and the reasons for such non-acceptance.
Joint State Public Service Commission
The Constitution allows for
the creation of a Joint State Public Service Commission (JSPSC) to serve
two or more states.
Although the Union Public
Service Commission (UPSC) and State Public Service Commissions (SPSC) are
established directly through provisions in the Constitution, a Joint State
Public Service Commission (JSPSC) can be established through an act of
Parliament upon the request of the respective state legislatures.
Therefore, unlike the UPSC and SPSC, which are constitutional bodies, a
JSPSC is a statutory body,
The two states of Punjab and
Haryana had a JSPSC for a short period after Haryana was created out of
Punjab in 1966.
The appointment of the
Chairman and members of a Joint State Public Service Commission (JSPSC) is
done by the President. They serve a term of six years or until the age of
62, whichever comes first. The President retains the authority to suspend
or dismiss them. Additionally, they have the option to voluntarily resign
from their positions by submitting resignation letters to the President at
any point.
The President determines the
number of members of a JSPSC and the terms of their service.
Article 324 : Power of superintendence, direction and control of Elections to
Parliament
State legislatures
Office of President of India
Office of vice-president of India
shall be vested in the election commission.
Note : Election
commission is not concerned with the elections to panchayats and
municipalities in states. For this, the Constitution
of India provides
for a separate State Election Commission.
Composition
Article
324 of the Constitution has made the following provisions
There shall be Chief
Election Commissioner & such number of election commissioners, as the President from time to time fix.
Appointed by the President subject
to the provisions of law made
by Parliament
When any other
Election Commissioner is appointed,
Chief
Election Commissioner shall act as the
chairman of
Election Commission.
Composition of Election Commission (History)
1950 to
15 Oct 1989
Single
Body Commission
Oct 1989
to Jan 1990
president
appointed two more election commissioners to cope with the increased work of
the election commission on account of lowering of the voting age from 21 to
18 years
Jan 1993
to Oct 1993
Again
Single Member Body
Oct 1993
to Present
Again 3
Membered Body (Chief Election Commissioner + 2 Election Commissioner)
Terms of Service
Chief Election
Commissioner & two other Election Commissioners have equal powers , salary, allowances and other perquisites, which are similar
to judge of the Supreme Court.
In case of difference of
opinion , matter is decided by the Commission by majority.
They hold office for a
term of six years or
until they attain the
age of 65
years,
whichever is earlier
Independence
Chief Election
Commissioner is provided with the Security of tenure. He cannot be removed from his office
except in same manner and on the same grounds as a judge of the Supreme Court.
Service conditions
of the Chief Election Commissioner cannot be varied to his disadvantage
after his appointment.
Any other Election Commissioner or
Regional Commissioner can’t be removed from office except on
recommendation of Chief Election Commissioner
Hierarchy
Central
Level
Election
Commission
State
Chief
Electoral Officer (CEO) – Appointed by Chief Election Commissioner in consultation with state government
District
District
Collector acts as District Returning Officer
Issue regarding Process of selection of Election Commissioners
Constitutional Assembly Debates : Prof Shibban Lal stressed that Election Commissioner should be appointed by 2/3rd majority of both the houses because of the importance of functions
Article 324 (2) : Election Commissioner to be appointed by President subject to the provisions of law made by Parliament
1974 : VM Tarkunde Panel recommended that Election Commissioner should be appointed by President on advice of Panel consisting of Prime Minister & Leader of Opposition
2nd Administrative Reforms Commission reiterated the same recommendations
Presently, Act has not been made . As a result following issues come
Chief Election Commissioner & Election Commissioner are appointed by President on advise of Council of Ministers
Election Commissioners don’t enjoy security of tenure and can be removed just on recommendation of Chief Election Commissioner
Constitution has not prescribed the qualifications (legal, educational, administrative or judicial) of the members
Constitution has not debarred the retiring Election Commissioners from any further appointment by the government.
Two Public Interest Litigations in this regard
Oct 2018 : Public
Interest Litigation in Supreme Court regarding collegium-like system for the selection
of the Chief Election Commissioner & Election Commissioner which has been referred to 5 judge
bench.
2017 : PIL filed in Supreme
Court contending that successive governments have failed in the constitutional
obligation to set up a fair, just and transparent process for selection of
Election Commissioners.
Powers and functions
The powers and functions of the Election Commission with regard to
elections to the Parliament, state legislatures and offices of President and
Vice-President can be classified into three categories, viz,
Administrative
Advisory
Quasi-Judicial
Powers and Functions of Election Commission as follows
To determine the territorial areas of the electoral constituencies throughout the country on the basis of the Delimitation Commission Act of Parliament.
To prepare and periodically revise electoral rolls and to register all eligible voters.
To notify the dates and schedules of elections and to scrutinise nomination papers.
To grant recognition to political parties and allot election symbols to them.
To act as court for settling disputes related to granting recognition to political parties & allotment of election symbols to them.
To appoint officers for inquiring into disputes relating to electoral arrangements
To determine the code of conduct to be observed by the parties and the candidates at the time of elections.
To prepare a roster for publicity of the policies of the political parties on radio and TV in times of elections.
To advise the President on matters relating to the disqualifications of the members of Parliament.
To advise the Governor on matters relating to the disqualifications of the members of state legislature.
To cancel polls in the event of rigging, booth capturing, violence and other irregularities.
To request the president or the governor for requisitioning the staff necessary for conducting elections.
To supervise the machinery of elections throughout the country to ensure free and fair elections.
To advise the President whether elections can be held in a state under president’s rule in order to extend the period of emergency after one year.
To register political parties for the purpose of elections and grant them the status of national or state parties on the basis of their poll performance
Demands of Reforms by Election Commission
1 . Constitutional Protection
It has demanded for constitutional protection for all three of its members as opposed
to just one at present.
Its two Election Commissioners
can be removed by the government on the recommendation of the Chief
Election Commissioner
2 . Contempt Powers
Election Commission
of
India urged Law ministry to amend election laws to give Contempt
powers to Election Commissionagainst parties making unfounded allegations.
3 . Elevation to Chief Election Commissioner of seniormost Election Commissioner
Provision either in law or by
resolution that senior most Election Commissioner should be
automatically elevated as Chief Election Commissioner
4 . Financial Freedom
Like the CAG and UPSC, Election Commission of
India wants its budget to be ‘charged’
on the Consolidated Fund
Current
practice – Voted and approved by Parliament.
5 . Independent Secretariat
Election Commission of
India should have independent
secretariat so
that it will not have to
depend on Department of Personnel and Training to appoint its officers.
6 . More teeth to tackle new challenges
Election Commission of India
sought amendment to
Representation of People Act to include specific powers to postpone or countermand polls on the grounds of use of money power.
At present, there is no
specific provision in the law to this effect and commission has to resort to extraordinary powers under
Article 324 of constitution which, it feels should be used sparingly.Clause
58 A empowers the Election Commission to cancel polls only if there is
an evidence of boothcapturing or
use of muscle power. Thus,
Election Commission seeks a new
clause ‘58 B’ in the Act for dealing with use of money power in elections or amendment to this effect
in the existing clause ‘58A’.
7 . Fair election
The section 126 of Representation of People Act currently
prohibits publication of ads by political parties in electronic media (TV,
radio) and recently added social media, 48 hours before voting ends. Election Commission of India wants print media to be
included in Section 126 of the RP Act.
Disqualification of a
candidate from contesting elections if a court has framed charges against him. Currently a candidate is
disqualified if convicted for crime bearing sentence more than 2 years.
Election Commission of India
also supports making paid news an
electoral offence
punishable by two years of imprisonment.
8 . Voting Procedure
Election Commission of India
seeks to introduce totalizer machines for counting of votes.
This article deals with ‘Special Category States.’ This is part of our series on ‘Polity’ which is important pillar of GS-2 syllabus . For more articles , you can click here
Background
Constitution didn’t has concept of Special Category State. Concept of a special category state was first introduced in 1969 by the 5th Finance Commission
Rationale for special status was that certain states, because of inherent features, have a low resource base and cannot mobilize resources for development.
The decision to grant special category status was earlier with National Development Council.
Initially Special Category Status was given to 8 North East States. Now 3 more added and they are 11 .
To whom it is accorded
Hilly and difficult terrain
Low population density or sizable share of tribal population
Strategic location along the borders with neighbouring countries.
Economic and infrastructural backwardness
Non-viable nature of finances (based on this Andhra Pradesh is demanding Special Category Status)
Benefits to Special Category States (SCS) – Based on Gadgil Mukherjee Formula
The nature of benefits to Special Category States create further demand by many states to crave for this status. The major benefits of Special Category States
Finance Commission : Extra Weightage in Tax Sharing and Grants given to Special Category States . But 14th Finance Commission has stopped this
Centrally Sponsored Schemes : In case of Core Schemes, Division of 90:10 whereas in other cases 60:40.
Unspent money is carried forward and doesn’t lapse .
Government gives various perks so that industry is setup in these states like Tax Breaks . In GST , special consideration can be given in rates
Planned Assistance : Extra funds were given to these states for implementation of Union Five Year Plan . In this, 90% was given as Grant and 10% as loans (compared to normal states with 70% grants and 30% loans)
Central Assistance to State’s own Five Year Plan in accordance to Gadgil Mukherjee Formula
Issues with the working of Special Category Status
Firstly, the way Special Category Status are assigned to a state has
been a matter of debate. States lobby central government to classify them in
special category.
Aid Curse : From the earlier experience, there is no guarantee that even after awarding Special category
status, economic progress will take place. For
economic development, it is important to follow sound economic
policies.
After 14th finance commission’s recommendations have been accepted, Special Category State status has lost relevance altogether.
Special Category Status: recent approach of government
Finance Commission has
stopped extra weightage given to Special Category States in Horizontal
Division of devolved funds
Planning Commission and Five
Year Plans have been removed all together
Way ahead : Raghuram
Rajan Committee’s (2013) proposal for Multi-Dimensional Index (MDI) (based on 10 factors like Health, Education,
Poverty rate etc) dividing states into three categories
Relatively Developed
Less Developed
Least Developed
And based
on this, different benefits should be given to states
NITI Aayog = National Institution for Transforming India
formed via a resolution on
January 1, 2015.
Premier policy ‘Think Tank’ of the Government
of India
Fostering the spirit of cooperative federalism.
Members
Structure of NITI Aayog
NITI Aayog = Planning Commission + National Development Council (State’s CM and UT Lt Governors included within policy making)
Regional Councils : NITI Aayog has Regional Councils too . Regional Councils will have Chief Ministers of states that fall in the region & will be dealing with specific issue concerning a group of states for example irrigation, naxal-problem, infrastructure etc.
Mandate of NITI Aayog
Think tank for Government policy formulation.
Cooperative Federalism:Involve state governments and even villages in planning process.
Documenting best practices from other countries, help their adoption in India.
Sustainable development
Monitoring and feedback : Will help in Midway course correction, if needed.
Difference with Planning Commission
Functions : It has a structure similar to the Planning Commission, but its functions will be limited to only acting as a policy think-tank relieving it of the two more functions viz. formation of five year plans and allocation of funds to the States.
Involvement of States in Policy Making : – NITI will have greater involvement of the states , while in case of Planning Commission , it was Minimal .
Development Approach : Planning Commission took a top-down approach with a one-size-fits-all plan but NITI Aayog has bottom up approach from village to state to union and give enough maneuvering space to States .
Significance / Assessment of NITI Aayog
Cooperative Federalism : Due to its composition, NITI Aayog gives better representation of states which facilitates direct interactions
NITI Aayog has come up with Perspective Document which has three parts and this is the biggest achievement as now country has Vision what policy makers have to achieve in long term as well as short term
Vision Document : For 15 Years (keeping in view SDG 2030)
Strategy Document : For 7 Years
Action Agenda : For 3 Years (from 2017-20)
Sectoral Works : NITI Aayog has done various works in various
sectors
Agriculture
– Model Law on Agricultural – Produce & Livestock Marketing (APLM) Act – Land Leasing : Came up with Land Leasing Model Act – Index : Came up with Agricultural Marketing and Farmer Friendly Reform Index
Health
Recommended abolition of Medical Council of India and to be replaced by National Medical Commission
Innovation
– Came up with various schemes to promote innovation and startups like AIM (Atal Innovation Mission)
Digital
Payment Promotion
Started various schemes like Digi Dhan Yojana, Lucky Grahak Yojana etc
Indexes/ Competitive Federalism : Various Indexes have been
started . Main Indexes started are in following Areas .
Water
Agri Related
Ease of Doing Business
Focus on inclusive development:
Started initiative focusing
on transformation of 115 aspirational districts.
It is also the nodal body for
monitoring
implementation of Sustainable Development Goals
Knowledge and Innovation hub: It acts as a Repository of information => best practices around
world
Challenges
Created by Executive Order and doesn’t have Statutory or
Constitutional backing.
Functions overlap with Constitutional Bodies like Inter State Council
Favour advanced states: Its promotion of competitive federalism may work in favour of already
advanced states to the detriment of others.
Limited focus on implementation : Just Policy Think Tank with
less focus on implementation
Old Wine in New Bottle : Nothing revolutionary different from Planning
Commission
Lack of decentralization power : One of the envisaged goals
of the NITI Aayog was to develop mechanisms to formulate credible plans at
the village level and aggregate these progressively at the higher level.
Very little of this cherished goal has indeed been accomplished.
Inter-state Councils, Inter-state Trade, Zonal Council and North East Council
Inter State Councils
Article 263
President can establish Inter State Council to effect coordination between states
& states and centre if it appears to him that Public Interest would be served by
establishment
Under this
provision ,councils established
Central
Council on health
Central
Council of local governance
Four
regional council for sales tax for north,south,east& west
Establishment of Inter State Council
Sarkaria Commission recommended its formation
Janata Dal
government under VP
Singh formed this
in 1990 under Article 263
Consist of
Chairman
Prime Minister of India
Members
– Chief Minister of States & Union Territories having Assembly – Administrators of rest of Union Territories – Governors of states under Presidents rule – Six central Ministers including Home Minister to be nominated by Prime Minster
Functions to
be performed – mandated by constitution
May meet
atleast thrice a year
Ninth meet held in 2005 & 10th in 2006 . After that it didn’t
meet for a decade and became defunct. Atlast it is again revived in 2016
In 10
previous meetings took important decisions like approving alternate scheme
of devolution, time bound clearance of state bills referred to President
Significance of Inter State Council
Constitutional Backing : Although, there are other bodies such as the NITI Aayog’s Governing Council-having a similar composition . But the Inter State Council has constitutional backing This puts the states on more solid footing
Punchhi Commission also recommended to use Inter State Councilto resolve Inter State & Center State issues instead of going for long litigations in the courts
Will help in strengthening Cooperative Federalism
Safety valve- council helps to bridge the trust deficit between center and states. If not a problem solver, it at least act as a safety valve
Issues with Inter State Council
Seen merely as a place to discuss without any follow up
Recommendations are not binding /advisory in nature
Doesn’t meet regularly. Met after decade in 2016
Need to strengthen Inter State Council
Should meet regularly
It’s secretariat should be shifted from Union Home Ministry to Rajya Sabha secretariat so that it would be under the direction of a neutral federal functionary, the vice-president of India rather than Union home minister.
Should be used while going for Treaty Making to take States whose interests are going to be impacted onboard (even suggested by Punchhi Commission)
Punchhi commission recommendations
Should meet thrice a year
Should have experts drawn from law, management, pol sci apart from IAS
Functional Independence with a professional secretariat
Public Acts, Records & Judicial Proceedings
Jurisdiction
of each state is confined to territorial limits of each state
Hence , acts
and records of one state may not be recognised by other state
For this, there is FULL FAITH & CREDIT CLAUSE which lays down following
Full faith
and credit to be given to public records and acts of centre
and all states through out India
Public act
Legislative & Executive acts
Public records
Official books, registers or record made by public servant
Final
judgements and orders of Civil Courts
in any part are capable of execution anywhere within India
Inter State Trade & Commerce
Free flow of trade without geographical barriers is sine quo non for economic prosperity . Our Federal Constitution guarantees it . We have arrangement that harmonise & facilitate Inter State trade and commerce
Constitution
Article 301 to 307 of Part XIII of Indian Constitution deals with this.
Constitution has taken National Interest as whole as well as interests of Particular State
Article 301
Trade ,commerce and intercourse throughout
territory of India shall be free
To breakdown
border barriers between the states
Article 302 to 305
Deals with restrictions to Article 301
Article 302: Parliament can impose restrictions on freedom of trade between states or within state in Public Interest (there may be plenty of food in one part while famine in other. If parliament has no power to check these abnormal situations then freedom of trade will become menace to freedom of life itself)
Article 303 – BUT in imposing restrictions cant give preference to one state over other except in case of scarcity of goods in any part of country ( ie in case of famine etc can even pass discriminatory law)
State Legislature can impose restrictions on freedom of trade with state or within state in public interest . BUT
Cant give preference to one state over other
Bill can be introduced in assembly with previous sanction of President
This give power to review that whether restriction is reasonable or not & declare it invalid if it is unreasonable
Legislature of State can impose any tax on goods imported from other state similar to tax on goods manufactured in that state are subjected
Freedom under Article 301 is subject to Nationalisation laws
Parliament is empowered to appoint such authority as it considers appropriate for carrying out purposes of Article 301 to 304 and confer it such powers as it thinks necessary . But no such authority has been appointed so far (Ambedkar envisaged for authority such as Inter State Commission of USA)
Zonal Councils
Zonal Councils are Statutory body
Made under State Reorganisation Act,1956
Provisions of Act
Act divided
country to 5 Zones – Northern , Central ,
Southern, Eastern, Western
Provided
Zonal Council for each zone
Each Zonal Council would consist of
Home Minister as Chairman
Chief Minister of all
states in zone
Two other ministers from
each state
Administrator
from Union Territories
Aim
To achieve
emotional integration of country
Help
arresting growth of regionalism,linguism etc
Removing
after effects of separation in case of reorganisation
Enable states
and centre to cooperate on social and economic issues
Secure
political equilibrium between states
Criticism of Zonal Councils
Don’t meet
frequently as may be required
Most of
states are reluctant to implement decisions taken at these meetings
North East Zonal Council
North East Zonal Council is a Statutory body
It is created under provisions of North Eastern council Act,1971.
Objectives : Same as zonal councils +review from time to time the measures taken by member states for maintenance of security and public order in region
Sarkaria and Punchhi Commission on Center-State relations
This article deals with ‘Sarkaria and Punchhi Commission on Center-State relations.’ This is part of our series on ‘Polity’ which is important pillar of GS-2 syllabus . For more articles , you can click here
1 . Sarkaria Commission
Three member commission setup in 1983 & submitted report in 1987
To look into Center-State relationship.
Main recommendations were
Didn’t favour structural changes arguing existing Constitutional Arrangements & principles are sound but emphasized on operational aspect
Rejected demand of curtailing powers of Center arguing that strong center is essential to safeguard national unity & integrity , however over centralisation should be avoided
Permanent Inter-State Council called the Inter-Governmental Council should be set up under Article 263.
Article 356 (President’s rule) should be used very sparingly, in extreme cases as a last resort
Institution of All-India Services should be further strengthened and some more such services should be created.
When the President withholds his assent to the state bills, the reason should be communicated to state government
Center should have powers to deploy its armed forces, even without consent of states. However,desirable that the states should be consulted.
Center should consult the States before making a law on a subject of the Concurrent List.
Procedure of consulting the Chief Minister in the appointment of State Governor should be prescribed in the Constitution itself.
Governor’s term of five years in a state should not be disrupted except for extremely compelling reasons.
Steps should be taken to uniformly implement the three language formula in its true spirit.
Till Dec 2007, The Central Government has implemented 179 (out of 247) recommendations of the Sarkaria commission. The most Important was the establishment of Inter-State Council in 1990.
2 . Punchhi Commission
Issues between Center – State are dealt by Punchhi Commission (Detail important for mains because latest such report )
April 2007 – Commission on Center-State Relations formed
under the chairmanship of Madan Mohan Punchhi, former Chief Justice of India.
In 2010, Commission submitted 7 volume report
Issue 1: Consultation with States while legislating on matters in Concurrent List
For effective implementation of laws in List III , broad consensus must be reached between states & center
Inter State Council can be used for this
Issue 2: On Transfer of Entries in the Lists, from List II to List III & List I
Article 368(2) empowers Parliament to amend any provision of the Constitution . Should Parliament deplete or limit the legislative powers of the States through this process ?
There should be mechanism to examine whether the administration of the relevant subject under the Central law (on the transferred subject) has achieved the objects . If the findings are not positive it may be worthwhile to restore the item to its original position in State List
Issue 3: On Bills reserved for consideration of the President
Article 201
– President to assent or withhold
assent to a Bill reserved by a Governor for the President’s consideration.
State’s
concern – Bills so submitted sometimes are indefinitely retained at
the Central level even beyond the life of the State Legislature
President
should decide consenting or withholding assent in reasonable time (6 months)
Issue 4: On Treaty making powers of the Union Executive and Center-State Relations
There is need for a
legislation to regulate the Treaty Making powers of the Union Executive since they are vast & unregulated
Treaties
which affect the
rights of citizens as well as those
which impinge on subjects in State
List should be negotiated with greater involvement of States and
representatives in Parliament
There may be
treaties or agreements which, when implemented, put obligations on particular States affecting its
financial and administrative capacities. Punchhi Commission
recommended that financial obligations arising out of treaties should be a permanent
Terms of Reference to the Finance Commission
Issue 5: On Appointment and Removal of Governors
Given status &
importance of office of Governor , it is important to lay down explicitly qualification &
eligibility for
being considered for appointment
Present
Status – Only qualification needed is Person should be citizen of
India & completed age of 35 years
Recommendations on Appointment
Sarkaria
Commission approvingly quoted
the eligibility
criteria that Jawaharlal Nehru advocated
and recommended its adoption in selecting Governors . These criteria
were:
He should be eminent in some walk of life.
He should be
a person from outside the State.
He should be
a person who has not taken too great a part in politics generally and
particularly in the recent past.
Punchi Commission
proposed to implement them
Recommendations on Removal
Phrase “during the pleasure of the
President” in Article 156(i) should be substituted
It is
necessary to provide for impeachment of
Governor on the same lines as provided for impeachment of President . Dignity and independence of the office warrants such a procedure.
Issue 6: On Governors’ discretionary powers
Article 163 – Governor has a wide, undefined area of discretionary powers even outside situations where the Constitution has expressly provided for it. The scope of discretionary powers under Article 163 has to be narrowly construed
On the question of dismissal of a Chief Minister, Governor should invariably insist on the Chief Minister proving his majority on the floor of the House for which he should prescribe a time limit.
Issue 7: On “Local emergency” under Article 355 and 356
Given the
strict parameters now
set for invoking
the emergency provisions under
Articles 352 and 356 to be
used only as
a measure of
“last resort”
, it is
necessary to provide
a Constitutional or
legal framework to
deal with situations short
of National Emergency or President’s Rule
Providing the
framework for “localized emergency“would ensure that
the State Government can
continue to function
and the Assembly
would not have to
be dissolved while
providing a mechanism to
let the Central
Government respond to
the issue specifically and
locally.
Issue 8: On All India Services and Center-State Co-operation for better Administration
All India Services are unique feature of the Indian Constitution.
The broad objectives in setting up All India Services relate to
facilitating liaison between the Union and States
promote uniform standards of administration
helping State administrative machinery to obtain best available talent with wider outlook & broader perspectives
reduce political influence in recruitment
promote discipline and control in administration.
Considering the
importance of these objectives, the
Commission strongly
recommends the constitution
of few other
All India Services in
sectors like Health,
Education, Engineering and
Judiciary.
However, the
Commission
recommended proper
integration of All
India Services in the
context of the
introduction of the
third tier of
governance.
Issue 9 : On Equal representation of States in Rajya Sabha
There are federations (like USA) which give equal number of seats to the federating units in the Council of States (Senate) irrespective of the size of their territory and population.
If the Council of States has failed to function as representative of States as originally envisaged, it is because of the unequal distribution of seats
There should be amendment of the relevant provisions to give equality of seats to States in the Rajya Sabha, irrespective of their population size.
The territorial link with that state from which a person is contesting for Rajya Sabha membership, which was prescribed by the Representation of People Act (until it was dispensed in 2003) is necessary and desirable
Issue 10: On Relationship of Article 246(3) and 162 with Articles 243G and 243W
Articles 243G (power, authority and responsibility of panchayats) and 243W (power, authority and responsibility of municipalities, etc.) are sometimes read to mean that they leave it to the discretion of States whether or not to devolve any powers and functions to the local bodies.
Although States have the discretion to decide and vary the subject matters in respect of which it wants to devolve powers and responsibilities, States are not free to decide not to devolve anything at all.
Issue 11 : Governments’ obligation to support court expenditure when laws are made
Financial Memorandum attached to Bills usually do not provide for adjudication costs . This puts the Subordinate Courts with little or no resources to cope up with additional workloads
Judicial Impact Assessment should be made whenever legislations are proposed
Issue 12 : On Judicial Councils to advise Center-State share in judicial budgets
Administrative expenses of the Supreme Court & High Court are charged upon the Consolidated Funds of Center & States respectively, there is no such financial arrangement guaranteed by Constitution for subordinate judiciary.
Judicial Councils” should be setup to decide
Judicial Budget for approval by legislatures
Proportion of share between Union and States based on workload of courts under Lists I, II and III.
Issue 13: On Need for continuing emphasis on federal balance of power
Framers of the Constitution, taking note of the pluralistic identities of the people adopted federal system
Commission, however, is convinced that tilt in favour of Union has increasingly accentuated over the years even outside the security needs of the country. This has to be corrected in the interest of better Center-State relations and also to sustain the unity and integrity
74th Constitutional Amendment added Articles 243P to 243ZG and Schedule 12 which deals with provisions related to Municipality.
Historical Perspective
1687
First Municipal Corporation in Madras setup
1726
Municipal Corporation setup in Bombay and Calcutta
1870
Lord Mayo’s Resolution on Financial Decentralisation visualised Local Self Government Institutions
1882
Lord Ripon‘s Resolution on Self Government . He is called Father of Self Government .
But system wasn’t elective in nature and hence criticized
1910s
Royal Commission on Decentralisation headed by Charles Hobhouse recommended Financial Decentralisation but due to World War I , nothing substantive came out of it.
1919
Dyarchy at the State Level started in which all subjects were divided into Reserved and Transferred . Panchayati Raj and Municipality were in Transferred Subjects which were to be headed by Indian Ministers. But in reality, power of control was still in the hands of British government
1935
Provincial Autonomy to States and since Local Government was State Subject, it came in control of Indians. But State Governments lacked resources and time, hence revolutionary changes weren’t introduced .
Constitutionalisation process
Rajiv Gandhi
In 1989 introduced 65th Constitutional Amendment(Nagarpalika) Bill ,passed in Lok Sabha but failed in Rajya Sabha
VP singh
November 1989 ; but Government lapsed
PV Narsimha Rao
Finally Constitutionalised it with 74th Constitutional Amendment
74th Amendment Act,1992
1 . Three types of Municipalities
Nagar Panchayat
Transitional area between Urban and Rural
Municipal Council
Smaller Urban Area
Municipal Corporation
Larger Urban Area
2. Composition
All members of Municipality to be elected
directly
State Legislature may provide for
Manner of election of Chairperson of Municipality
May provide
for representation to persons having special knowledge in Municipal
Administration without right to vote, MP and MLA from that area
3. Ward Committee
Ward Committees consisting
of one or more wards within territorial area of Municipality having population of 3
lakh or more to be constituted
2nd Administrative Reforms Commission has criticized practice of clubbing together more than one ward to form Ward Committees which represent population of more than 3 Lakh (eg in Mumbai, each committee represent around 7 Lakh population) . Also this leads to system of Spoil Sharing with Chairmanship rotating between different Ward Heads. Commission has proposed alternate scheme .
4. Reservation of seats
SC & ST
Reservation to Members and Chairpersons in proportion
of their population
Women
Atleast 33.3% seats reserved (including the seats reserved for
woman in SC/ST)
OBC
State legislature can reserve seats for them
5. Duration
Term of 5
years
If dissolved
earlier new elections should be held within 6 months (and hold office for
remaining part of the tenure)
6. State Election Commission (SEC)
Under Article
243 (K) and 243 (ZA) , State Election Commissioner has been made responsible for conducting elections of Urban and
Rural Local Bodies .
Election
Commissioner to be nominated by Governor at state level
Vested with
powers to superintend elections of municipality and making electoral rolls
etc
Role of State Election Commission
Preparation
of Electoral
Roll
Conducting elections of Panchayati Raj Institutions and
Municipality
elections
Implement Code of Conduct so that illegal activities
and electoral malpractices can be controlled.
Recommending
State Government to give Officers on deputation for conducting elections
7. Finance
State legislature may authorize Municipalities to levy & collect property tax, duties, tolls & fees or assign municipality taxes or give grant in aid but ceiling and procedure to same can only be decided by State legislature
After 5 years , Finance Commission to be formed by Governor to review the Financial Position of Municipality and suggest method to distribute taxes
8. Audit & account
State legislature may make provisions wrt maintenance of accounts by municipality and auditing of such accounts
9. Application to Union Territories
President can direct to implement these provisions in UTs with modifications
10 . Exempted areas
Not apply to Scheduled Areas & Tribal Areas and shall not affect powers of Gurkha Hill Council
11. 12th Schedule
Contain 18 functional items (29 – in case of Panchayats) placed within purview of Municipalities
Urban planning including town planning.
Regulation of land-use and construction of buildings.
Planning for economic and social development.
Roads and bridges.
Water supply for domestic, industrial and, commercial purposes.
Public health, sanitation conservancy and solid waste management.
Fire services.
Urban forestry protection of the environment and promotion of ecological aspects.
Safeguarding the interests of weaker sections of society, including handicapped & mentally retarded.
Slum improvement and upgradation.
Urban poverty alleviation.
Provision of urban amenities and facilities such as parks, gardens, play-grounds
Promotion of cultural, educational and aesthetic aspects.
Burials and burial grounds; cremations, cremation grounds and electric crematoriums.
Cattle ponds; prevention of cruelty to animals.
Vital statistics including registration of births and deaths.
Public amenities including parking lots, bus stops and public conveniences.
Regulation of slaughter houses & tanneries
But provision is – powers may be devolved to enable them to carry responsibilities conferred upon them in Schedule 12 & is not a mandatory provision
There appear to be certain incongruities in the Twelfth Schedule and several matters listed in the Eleventh Schedule that ought to have been included, have been omitted inadvertently.
Types of Urban bodies
8 types of Urban Local Bodies have been created in India
1 . Municipal Corporation
For big cities like Delhi, Mumbai, Kolkata, Hyderabad & others
Created by Acts of Legislative Assembly in State & act of Parliament in Union Territory
Has three authorities in it
Council
– Deliberative & Legislative body – Consist of Councillors directly elected by people + few nominated members having knowledge of Municipal Administration – Reservation according to 74th Amendment for SC,ST & women – Council is headed by Mayor (can be elected by majority vote or directly . Not Uniform in all States . He is ornamental head )
Standing committee
– Council is too large . Hence, Standing Committees created to facilitate working – Deal with public work, education , health, finance etc
Municipal
commissioner
– Chief Executive Officer : Responsible for implementation of decisions of Council & standing committee – Appointed by State & is generally an IAS
2. Municipality
For
administration of small cities
Established by State laws in
states & law of Parliament in UTs
Known by
various names like Municipal Council, Municipal Committee, Board etc
Has same
three organs like Municipal
Corporation i.e. Council, Standing Committee & Chief Executive Officer
but Council is headed by Chairman
& unlike Mayor he has all the Executive Power
3. Notified Area Committee
For administration of two types of areas
Fast developing due to industrialisation
Not fulfill all the conditions to form Municipality but are important for state
Established by state notification in state gazette & those provisions are valid which are notified by state in gazette
Entirely nominated body + non statutory body
4. Town Area Committee
For
administration of small town
Created by State Legislation & May be wholly elected
or partially elected partially nominated
Semi-
Municipal body & entrusted with limited functions like drainage, roads etc
5. Cantonment Board
For
administration of civilian population in Cantonment Area
Setup under Cantonment Act, 2006
by Parliament(no State Act)
Total 63
Cantonments in India & divided to 4 categories
Category I
Above 50,000
Category II
10,000 to 50,000
Category III
2500 to 10,000
Category IV
Below 2500
Partly
nominated & partly elected
Commanding Officer of area is Ex-Officio President of board
Functions
performed by the Cantonment Board are similar to those of Municipality
6. Township
Established
by large enterprise to provide civic amenities to its staff & workers
who live in housing colonies built near plant
Enterprise
appoint town administrator to look after administration of township
No elected
members & is extension of bureaucratic
structure of enterprise
7. Port Trust
Established
in Port areas like Mumbai, Kolkata, Chennai etc
To manage
& protect ports and to provide civic amenities
Created by
act of Parliament and perform functions similar to those
of Municipality
8. Special Purpose Agency
These are function based & not area based committees
Eg : Town
Improvement Trust, Urban Development Authorities, Water Development
Authorities,Pollution Control Boards etc
Are either Statutory Bodies or can be created by Department Executive Resolution
Are not
subordinate to Municipal Bodies & act independently in functions
allotted to them
Topic : Directly Elected Mayors
2nd ARC
Extensively discussed this topic and recommended Directly Elected Mayors
with fixed tenure of 5 years
2016
Shashi
Tharoor introduced Private
Member Bill to introduce Directly Elected Mayors
Present System
Chairperson/Mayor in urban local government in most States enjoys primarily a ceremonial status. In most cases, the Commissioner, appointed by the State Government, has all the executive powers.
Presently, there is not a uniform system for election of Mayors.
In most major States, the Chairperson is indirectly elected by the elected Councillors.
In Madhya Pradesh, Tamil Nadu and Uttar Pradesh , Chairperson is directly elected by the voters of the city.
Term of Mayor isn’t uniform in whole country either
5 years in Kerala, Rajasthan, Tamil Nadu etc
1 year in Assam, Delhi, Haryana etc
2.5 years in Gujarat and Maharashtra
Examples from other Cities
Mayors of New York and London are popularly
elected by direct vote every four years.
Mayor of Toronto is elected by
direct popular vote once in three years.
In almost all these cities, the city government is a powerful institution with very real and effective role in the management of most aspects of the city
Various Contexts to decide whether we should adopt system of directly elected Mayors or not
1 . Stability
Indirectly Elected
System prone to horse
trading
Directly Elected
Fixed tenure and cannot
ordinarily be removed from office by the Councillors
2. Accountability
Indirectly Elected
Held
accountable by Councillors for all decisions
Directly Elected
Abuse of authority by the
Mayor with a fixed tenure cannot be easily checked.
3. Cohesion
Indirectly Elected
No logjam between the
Council and Executive Mayor.
Directly Elected
It is possible that the
Mayor and a majority in the Council may belong to two different
parties. This may lead to lack of cohesion causing delays and even
paralysis.
4. Representation
Indirectly Elected
When a Councillor elected to represent a ward is elected as the Mayor
indirectly, often it is difficult to enlarge his/her vision for the
whole city.
Directly Elected
Direct popular mandate
gives the Mayor the legitimacy to represent and speak for the whole
city.
5. Leadership Development
Indirectly
Elected
Directly
Elected
In the pre-independence era, great freedom fighters Chitta Ranjan (CR) Das & Netaji Subhas Chandra Bose were Mayors which proved stepping stone in becoming National Leaders
Therefore direct election of the Mayor, is an important source of recruitment of talent into public life and leadership development.
Considering above Pros and Cons, 2nd ARC recommended that it
is desirable to choose the Mayors/Chairpersons through popular mandate in a
direct election.
Other suggestion – Instead of directly electing Mayor, Indirect election in which members of Council elects Mayor (as is the present case) but all the Executive Powers can be vested in Mayor can also be considered (instead of Municipal Commissioner) . This will be more in line with our Parliamentary Government at State and Center level as well.
District Planning Committee
Under
provisions of Constitution, All districts have to constitute District
Planning Committee
Function : To consolidate plan
prepared by Panchayats and Municipalities for District as whole
State
Legislature can also make provisions for
Composition
of Committees
Manner of
election of members of such committees
Manner of
election of Chairperson
4/5 members should be elected from Panchayats and Municipalities in
proportion of Rural and Urban population
Chairperson
to forward development plan to state government
Metropolitan Planning Committee
All Metropolitan Areas to constitute Metropolitan Planning Committee
Functions : To consolidate plan prepared by Panchayats and
Municipalities for area as whole
State
legislature can also make provisions for
Composition
of Committees
Manner of
election of members of such committees
Manner of
election of chairperson
2/3 members should be
elected from Panchayats and Municipalities in proportion of rural and
urban population
Discussion : Issues with Panchayati Raj Institutions (ie Rural and Urban both)
Even after the passing of the 73rd and 74th Constitutional Amendments, the transfer of funds, functions and functionaries (3Fs) has been nominal in most States with notable exceptions such as Kerala.
Lack of Finance : Discussed below in detail
Functions not devolved : Although functions of Union & state are clearly defined in 7th Schedule but that of Panchayati Raj Institutions are in Schedule XI & Schedule XII with option given to States to devolve these functions at their will. 2nd ARC Suggestion to remove this anomaly,
Seventh Schedule should be amended by adding one more list of Local Governments & define functions to be performed by Panchayati Raj Institutions in 7th Schedule itself.
There is an acute shortage of skilled staff in Panchayati Raj Institutions.
Programmes to give proper training to employees of Municipalities can be answer .
Restructuring of Bureaucracy keeping in view the requirements of Third Rung of Government is long overdue
Central Programs like Smart Cities Program which mandates the
creation of special purpose vehicles (SPVs) for Smart Cities which
encroaches governance area of Municipalities
Existence of Parastatals : Parastatals are institutions like District Rural Development Agency (DRDA),
District Health Society (DHS) etc formed for delivery of specific services. Activities performed by many of these
organisations are in the matters in 11th & 12th Schedule and their
separate existence with considerable fund and staff , is an impediment to
effective functioning of local government .
Lack of credible data at city level on
jobs, investments or tax
collections. Hence, well informed policy cant be formed
Election
expenses and code
of conduct to
be better regulated and more
powers should be given
to the State
Election Commission to
do the same. Most of the Municipal Elections
get rigged
Fodder : February 2016 – Municipal Corporation of Delhi (MCD) ran out of funds to pay salaries to its staffs. As a reaction, sanitation workers went on strike which created conditions of uncleanliness on Delhi roads.
Discussion : Financial Crunch of Municipalities
Main Committees regarding this
14th Finance Commission
2nd ARC
Insufficient local revenue
generation was also highlighted by Economic
Survey 2017-18 as
‘Low Equilibrium Trap’, local bodies appear to be
not collecting revenues from taxes to the extent they can
Mention these in answers.
Data to substantiate financial crunch of Municipalities
India
Europe
Local Government
Expenditure out of Total Expenditure consisting Union, State &
Local
7%
24%
Issues with Municipal Finance
Improper Devolution of Taxes : since it wasn’t necessary condition , most of the states haven’t devolved taxation powers.
Issues with implementation of State Finance Commission (SFC) Recommendations: States don’t accept the recommendations of State Finance Commissions .
Tied Fund / No Discretion : Major portion of the grants both from Union as well as the State Governments is scheme specific. Panchayats have limited discretion and flexibility in incurring expenditure
Lack of Data: due to poor documentation of land and property, there is leakage in land tax that can be realised
Absence of Taxation leading to lesser Accountability : in absence of robust Taxation System at local levels, local government is losing its legitimacy.
Way Forward to increase finances
Property tax :
Proceeds of the Property Tax should be given to Municipalities . Municipalities are best suited to collect and use that tax because people of area paying Property tax can hold Municipality accountable to use that tax properly.
Frequent revision of Property Tax according to Inflation
Other problems :
The boundaries of municipal bodies are not expanded to keep pace with the urban sprawl;
State laws often provide for exemption to a number of categories of buildings such as those belonging to religious or charitable institutions
Professional tax :
Increase from 2500 to 12,000 & give this tax to local bodies as has been done by Kerala & TN . Professional tax can be levied by State Legislature or Municipalities but its maximum limit can be decided by Parliament.
For some cities, Professional tax is the most important source of income after property tax. In the Corporation of Chennai, for instance, it contributes Rs.200 crore annually, half as much property tax.
Expand Entertainment Tax
Entertainment tax net to be expanded : cable , net – cafè , boat rides should be included
Amend Article 285(1)– Union Properties can’t be taxed by State /Local Bodies . 14th Finance Commission recommended that some money should be given in compensation for their loss
Look for Non Tax Revenue
Municipalities should look for Non Tax Revenue (as Railways is doing) . Eg : By renting the walls of its buildings to be used for advertisement
Municipal Bonds
For the future projects like Smart City etc large investment is needed in the cities. Government is looking towards Municipal Bonds for this
Documentation of good practices: NITI Aayog can be roped in to keep inventory of local and international good practices and aid in their implementation.
Land Leasing: Local Bodies have ownership of large chunk of lands. This can be used by Local Bodies to generate funds
Many cities in China (eg Shanghai) have financed more than half of their infrastructure investment from land leasing
Value Capture Financing : city governments raise resources by tapping a share of increase in value of land and other properties like buildings resulting from public investments and policy initiatives, in the identified area of influence.
Concept of local self government is not new to our country and there is mention of community assemblies in the Vedic texts. The Greek Ambassador, Megasthenes, who visited the court of Chandragupta Maurya in 303 B.C. described the City Council which governed Pataliputra – comprising six committees with 30 members. Similar participatory structures also existed in South India. In the Chola Kingdoms, the village council, together with its sub-committees and wards, played an important part in administration, arbitrated disputes and managed social affairs. They were also responsible for revenue collection.
History and Evolution
1 . Lord Mayo’s Resolution of 1870
This started the work of decentralization in India.
2. Lord Rippon’s Resolution of 1882
Laid foundation of Local Self
Government in Rural India (called father
of Self Government in India)
Passed in 1885 as Bengal Local
Self Government Act
Although
Panchayats weren’t democratic institutions but consisted of government
nominated members
3 . Gandhi vs Ambedkar and Constitutional Assembly
They differed in their idea towards
Panchayati Raj
Ambedkar argued in the Constituent Assembly that caste oppression can’t be weakened by Panchayats but Gandhian members differed from him
Then ultimately
Panchayati Raj was given position in Directive Principles as Article
40 i.e. state shall take all steps to organise village Panchayats and
endow them with such power & authority as may be necessary to enable
them as units of Self Governance
Along with that turmoil due to the Partition resulted in a
strong unitary inclination in the Constitution. Nehru himself looked upon
extreme localism as a threat to
unity and integration of the nation.
Note – Urban Local Bodies don’t find mention here and Constitution makers had only vision of Gram Swaraj in mind with least focus on Urban Local Bodies.
4. Balwant Rai Mehta Committee
Constituted in January ,1957 and submitted report in November ,1957
To examine working of Community Development Program and National Extension Service and suggest measures for their better working
Recommendation – Establishment of scheme of democratic decentralization which ultimately came to be known as Panchayati Raj to do planning and development at local level.
Recommendations were accepted by National development Council but it didn’t insist on single pattern and left it to state to chose their pattern
Rajasthan first to implement . Till 1960 almost all states implemented
5. Ashok Mehta Committee
Constituted
in December 1977 by Janata Government
To revive and
strengthen the declining Panchayati Raj System
Main
recommendations include
3
Tier System to be replaced with 2 Tier System with Zila
Parishad at district level and Mandal Panchayat below it with population
of 15,000
But Janata
Government collapsed and no step taken on this report
6. GVK Rao Committee
Committee on Administrative Arrangement for Rural Development & Poverty Alleviation
By Planning Commission in 1985
Committee concluded that development process was gradually bureaucratised and divorced from Panchayati Raj
Hence, Panchayati Raj institutions must be revitalized and basic decentralised planning function should be done at District Level with District Collector Head of Committee
7. LM Sanghavi Committee
1986 by Rajiv
Gandhi government
Titled – Revitalisation of Panchayati Raj Institution for
Development
Main recommendations were
Constitutionalisation of Panchayati Raj
Establishment
of Nayaya Panchayats
Villages to
be reorganised so that Gram
Panchayats become more viable
Emphasis on
importance of Gram Sabha
8. PK Thungon Committee
Formed in 1989
P.K.Thungon Committee recommended
constitutional recognition for
the local government bodies
A constitutional amendment to
provide for periodic elections to local government institutions, and
enlistment of appropriate functions to them, along with funds
9. Constitutionalisation process
Rajiv Gandhi
In 1989 introduced 64th Constitutional Amendment ,passed in Lok
Sabha but failed in Rajya Sabha
VP singh
Introduced it in November 1989 ; but government lapsed
PV Narsimha Rao
Finally
constitutionalised it with 73rd Constitutional Amendment in 1992
73rd Constitutional Amendment Act
1 . New things added
Part IX
Article 243 to 243 O
Schedule XI – 29 functions
(But provision is – powers may be devolved to enable them to carry responsibilities conferred upon them in Schedule 11. It is not a mandatory provision)
2 . Gram Sabha
Gram Sabha is assembly consisting of all persons registered in electoral rolls.
Gram Sabha to be foundation of Panchayati Raj.
2.1 Functions & Importance of Gram Sabha
Decide the Beneficiary group for particular scheme .
Examining the annual statement of the accounts and audit report of
Gram Panchayat.
Can check any government document.
Summon any Government employee as it is given status of Civil Court.
Can vote on budget of Panchayati Raj Institution and programmes run by
Panchayat.
Mobilisation of voluntary labour and conducting community
welfare programmes.
Hence, Gram Sabha act as Village Parliament wrt Panchayati Raj System.
2.2 But Gram Sabhas are not performing its role due to following reasons (according to 2nd ARC)
Meetings not conducted at regular time (although 4 meetings are
needed to be conducted in every 6 months)
There isn’t proper infrastructure like Meeting Hall etc for working of Gram Sabha.
Due to Caste System and value system of villagers, people don’t speak against elders .
Bureaucracy also remains apathetic
to the demands of Gram
Sabha
People don’t know their rights and how to exercise them
2.3 Ways to make Gram Sabhas more efficient (by 2nd ARC)
Funds of MPs and MLAs (MPLADs & MLALADs) should be used to make
infrastructure for working of Gram Sabha . According to calculations of
2nd ARC, fund of one year is enough for this.
If Bureaucracy try to suppress critical voice raised by Gram Sabha, exemplary punishment should be awarded considering
it attack on democracy.
Recognise importance of Civil Society
organisations in
making Gram Sabhas effective. Eg : Rajasthan’s
Mazdoor Kisan Shakti Sangathan’s Jan Sunvai initiative.
3. Three tier system
Panchayats at village , intermediate and district levels through out country
2018 : Arunachal Pradesh has passed a bill to do away with intermediate level of the three-tier Panchayati Raj system, and set up a two-tier system in the state because Constitution enables a state having less than 20 lakh population not to have the intermediate level, and Arunachal has a population of 13.84 lakh
4. Elections in Panchayati Raj Institution
Members at all 3 levels to be elected by direct voting
Election
of head
Intermediate and District
Indirectly( by and from
among the elected members)
Village
As State
Legislature will make law
Courts cant interfere in electoral matters of Panchayat (anything related to
delimitation of constituencies & allotment of seats to such
constituencies )
5. Reservation of seats
SC & ST
Reservation to Members and Chairpersons proportional of their population
Women
Atleast 33.3% ie 1/3rd seats
reserved (separately in seats reserved
for SC/ST 1/3 should be for woman belonging to SC/ST) for members and
chairpersons
OBC
State Legislature can reserve seats for them
6. Duration of Panchayat
Term of Panchayat is 5 years
If
dissolved earlier, new elections should be
held within 6
months
7. State Election Commission (SEC)
Election
Commissioner to be nominated by Governor at state level .
Election
Commission can be removed in manner similar to removal of Judge
of High Court
Vested with
powers to superintend elections of Panchayats and making electoral rolls
etc
Qualifications
and Terms of Service (like age of retirement) etc are to be decided by
State via Act
Suggestions of 2nd Administrative Reforms Commission (ARC) regarding SECs
To ensure independence of the
State Election Commission, appointment of the SEC should be done by a
collegium comprising the Chief Minister, Chief Justice of the High Court
and the Leader of Opposition in the Legislative Assembly.
Uniform criteria need to be
evolved and institutionalised regarding the qualifications of appointment,
tenure of office and age of retirement.
Commission is of the view that a uniform tenure of 5 years subject
to a age limit of 62 years as is applicable to the judges of High Courts
would be appropriate
Institutional mechanism should
be created to bring the Election Commission of India and SECs on a common
platform for coordination, learning from each other’s experiences and
sharing of resources.
8. Finance
State
Legislature can authorise Panchayat to collect
taxes or assign panchayat taxes or give grant in aid
After
5 years Finance
Commission to be formed by Governor to
Review the
financial position of Panchayats
Suggest
method to distribute taxes
Determine
taxes to be assigned to Panchayats
Grant in aid to
Panchayats from Consolidated Fund of State
9. Audit & Account
State legislature may make provisions wrt maintenance of accounts by Panchayats and auditing of such accounts
10. Exempted States & Areas
States
J&K, Nagaland
, Mizoram and Meghalaya
Other areas
Scheduled and Tribal
Areas , Hill area of Manipur for which District Council exist and Darjeeling
District of West Bengal
Parliament can extend provisions of Act with certain modifications to schedule areas and for this PESA ACT,1996 enacted.
11. Eleventh Schedule
Consist of 29 functional items placed within purview of panchayats
Agriculture, including agricultural extension.
Land improvement, implementation of land reforms, land consolidation and soil conservation.
Minor irrigation, water management and watershed development.
Animal husbandry, dairying and poultry.
Fisheries.
Social forestry and farm forestry.
Minor forest produce.
Small scale industries, including food processing industries.
Khadi, village and cottage industries.
Rural housing.
Drinking water.
Fuel and fodder.
Roads, culverts, bridges, ferries, waterways and other means of communication.
Rural electrification, including distribution of electricity.
Non-conventional energy sources.
Poverty alleviation programme.
Education, including primary and secondary schools.
Technical training and vocational education.
Adult and non-formal education.
Libraries.
Cultural activities.
Markets and fairs.
Health and sanitation, including hospitals, primary health centers and dispensaries.
Family welfare.
Women and child development.
Social welfare, including welfare of the handicapped and mentally retarded.
Welfare of the weaker sections, and in particular, of the Scheduled Castes and the Scheduled Tribes.
Public distribution system.
Maintenance of community assets
(But provision is – powers may be devolved to enable them to carry responsibilities conferred upon them in Schedule 11. It is not a mandatory provision)
12. Compulsory Provisions
Organisation of Gram Sabha in village or group of villages
Establishment of Panchayat at village, intermediate & district
Direct election to all seats at all levels
Indirect election of Chairman at Intermediate & District level
21 years – minimum age for contesting elections
Reservation of seats (for Members & Chairperson) for SC/ST at all three levels , 1/3rd reservation for woman for Members & Chairperson
Tenure =5 years & holding elections within 6 months if dissolved earlier
Establish State Election Commission
Constitution of State Finance Commission every 5 years
13. Voluntary Provisions
Giving
representation to MP & MLA in Panchayats
Providing
reservation to OBC
Making them autonomous bodies
Devolution of powers & responsibilities upon Panchayats to
prepare plans for economic development & social justice
Granting Financial Powers to Panchayats
Panchayat Samiti
Second or middle tier of the Panchayati Raj
Provides a link between Gram Panchayat and a Zila Parishad.
Strength depends on the population in a Samiti area.
Some members are directly elected. Sarpanchs of Gram Panchayats are ex-officio members of Panchayat Samitis. However, all the Sarpanchs of Gram Panchayats are not members of Panchayat Samitis at the same time. The number varies from State to State and is rotated annually. It means that only chairpersons of some Gram Panchayats in a Samiti area are members of Panchayat Samiti at a time. In some Panchayats, members of Legislative Assemblies and Legislative Councils as well as members of Parliament who belong to the Samiti area are co-opted as its members.
Chairpersons of Panchayat Samitis are, elected indirectly- by and from among the elected members
Functions
Panchayat Samitis are at the
hub of developmental activities. They are headed by Block Development
Officers (B.D.Os).
Implementation of some
specific plans, schemes or programmes to which funds are earmarked. It
means that a Panchayat Samiti has to spend money only on that specific
project.
Zila Parishad
Uppermost tier of the Panchayati Raj system.
Institution has some directly elected members whose number differs from State to State as it is also based on population.
Chairpersons of Panchayat Samitis are ex-officio members of Zila Parishads
Members of Parliament, Legislative Assemblies and Councils belonging to the districts are also nominated members of Zila Parishads.
Chairperson of a Zila Parishad, called Adhyaksha or President is elected indirectly- by and from among the elected members thereof. The vice-chairperson is also elected similarly.
Zila Parishad meetings are conducted once a month. Special meetings can also be convened to discuss special matters. Subject committees are also formed.
Functions
Links
Panchayat Samitis within the district. It coordinates their activities and supervises
their functioning
It prepares District Plans and integrates Samiti Plans into
District Plans
for submission to the State Govt
Zila Parishad looks after
development works in the entire district
Nyaya Panchayats
Gram Nyayalaya Act 2008
It came into force on 2
October 2009
It mandates establishing Gram
Nyayalayas to make justice easily accessible to the
rural population
and dealing with the backlog of cases by making courts available at Panchayat level and dispose
the work by going to the villages.
Salient Features
Each Gram Nyayalaya is a court of Judicial Magistrate of the first class, appointed by
state governments
Established for every Panchayat at intermediate level or a group of
contiguous Panchayats at intermediate level in a district.
Functions as a mobile court
and exercises the powers of both Criminal and Civil Courts.
An appeal against a judgement
of the Gram Nyayalaya can be taken to Session
Courts in criminal case and District Courts in Civil cases.
Devolution Index
Progress in
effective decentralisation of governance is not uniform across all states
Ministry of
Panchayati Raj asked National
Council of Applied Economic Research(NCAER) to develop working devolution index to measure
how States are performing in process of devolution
Scale ranges
from 0 to 1
Note = Kerala scores highest
(Kerala model of Panchayati Raj)
Rashtriya Gram Swaraj Abhiyan (RGSA)
2018 : Government launched Rashtriya Gram Swaraj Abhiyan
on the Panchayati Raj Day.
Main features
Revamped version of Rajiv Gandhi Panchayat Sashaktikaran Abhiyan
It is a centrally sponsored scheme
Aims at making rural local bodies self-sustainable, financially stable and more efficient.
Strengthening Gram Sabhas to function effectively as the basic forum of people’s participation
Activities under the scheme will be aligned for achieving the SDGs with main thrust on Panchayats identified under Mission Antyodaya and 115 Aspirational districts
Critical Analysis of Panchayati Raj
# Pros of Panchayati Raj
Some of the most important schemes like NREGA & NRHM are implemented through Panchayati Raj Institution.
Bottom up approach of development achieved which is less wasteful and keep in mind local needs of people. Social Audits done by Gram Panchayats have increased the efficacy of outcomes of funds.
There are about 2.4 Lakh Panchayati Raj Institutions and number of persons elected in them are 36 lakh in Panchayats & Nagapalikas (even higher than population of Norway )
In terms of empowerment of woman , it is the greatest experiment taken by any democracy in the world . More than 10 Lakh woman are elected through Panchayati Raj Institutions
SC/ST/ OBC have been given reservation . This has helped in breaking the old hierarchy in villages & played part in undermining the institution of caste
# Cons of Panchayati Raj
Main problems with Panchayati Raj Institutions are – FUNDS , FUNCTIONS & FUNCTIONARIES
Powers have not been devolved adequately & Devolution index prepared by NCAER clearly points that
Grant in aid are major component of Panchayati Raj Institutions revenue
Most of the states are not constituting State Finance Commission . Even if they are constituted, their recommendations are not implemented . Panchayati Raj Institutions are always in Financial Crunch
Lack of training programmes for participants of Panchayati Raj Institutions to make them more professional & develop leadership qualities in them
Domination of bureaucracy over Panchayati Raj Institutions
Although third layer of Governance has been added by 73rd and 74th Constitutional Amendment but parallel restructuring of bureaucracy hasn’t been done leading to shortage of manpower .
Various parallel bodies like DRDA have undermined the importance of Panchayati Raj Institutions . These types of bodies should either be disbanded or made accountable to Panchayati Raj Institutions
Elite control over system is a fact till today
State level leaders still see Panchayati Raj Institutions leadership as challenge to their power & do all in their power to undermine their authority
Women and Panchayati Raj
Historically
, women & lower castes were not allowed membership of Panchayat.
But 73rdAmendment
Act, 1992, reserved at least 1/3rd seats at all levels of
Panchayat for women.
Numerically,
today India can actually boast that there are more elected women representatives (EWRs) in India that
the rest of the world put together.
Elected women
perceived enhancement
in their self-esteem, confidence, decision-making ability and respect within the family after winning an election.
Pending legislative reform
110th & 112th Amendment Bill : Reserve 50
% seats for women
in PRIs and Urban local bodies
Bihar, Uttarakhand, Madhya
Pradesh, Punjab and Himachal Pradesh have
already reserved 50% seats for women in local governance.
Pending constraints
Women belonging to disadvantaged sections face double oppression.
Acceptability of women
as elected representatives . Male members try to create
hurdles .
Issue of Sarpanch
Patis, where the husband of the woman sarpanch manages the affairs of
the Panchayat and she is only a proxy
candidate.
Social myths and prejudices create hurdles . For example,
tradition of remaining silent before elderly members
Panchayats (Extension to the Scheduled Areas) Act,1996 (PESA Act )
Need of PESA
Because 73rd Amendment is not applicable to Scheduled and Tribal Areas
Objectives of PESA
To extend provisions of Part IX to Schedule Areas
To make gram
sabha nucleus of all activities
To safeguard
& preserve traditions and
customs of tribals
To prevent
Panchayats at higher levels from assuming powers and authority of powers
at lower levels
Features of PESA
Panchayats in these areas to be in consonance with local traditions
All villages to have Gram Sabha consisting of all whose name is in electoral rolls
Gram Sabha should approve plans for social and economic empowerment and identification of beneficiaries of poverty alleviation programmes
Gram Sabha or the Panchayats’ at ‘appropriate level’ should be consulted for acquisition for development and rehabilitation project
All Chairpersons in these areas should be STs
Gram Sabhas or Panchayats at appropriate level shall also have powers to
manage minor water bodies;
mandatory consultation in matters of land acquisition;
prospecting licenses/mining leases for minor minerals;
regulate and restrict the sale/consumption of liquor;
manage village markets,
control money lending to STs; and
ownership of minor forest produces
Note – In PESA, Gram Sabha is the lynchpin. Hence, PESA introduces a strong element of subsidiarity
Why poor implementation of PESA ?
PESA has been very poorly implemented across the nine States. Following reasons can be
attributed to this
Absence of Proper definition of Village in consonance with PESA : All States, without exception, have continued with their earlier revenue definitions of the village.
Ambiguous definitions within PESA – definition of many provisions are ambiguous like minor water bodies, minerals in the statute etc
Lack of coordination and overlapping jurisdiction – Both Ministry of Tribal Affairs and Panchayati Raj have overlapping jurisdiction
State government laws and provisions cleverly negate PESA : For example, PESA is for rural areas, states upgrade rural panchayats to urban panchayats to bypass PESA (Xaxa Committee observation)
Attitudinal Problem of Bureaucracy: Government functionaries treat tribals as inferior.
There is a large number of Centrally Sponsored Schemes which are not compatible with PESA e.g. Policy on wastelands, water resources and extraction of minerals.
Ways to improve
Define Villages in consonance with the PESA Act
‘Prior informed consent to be taken’ to replace ‘consulted’ for acquisition for development and rehabilitation project
Representatives should be trained & educated to use their powers given to them under PESA effectively
Proper communication channel between Panchayati Raj and Tribal Affairs ministry
There is urgent need to amend Indian forest Act and other related Acts in consonance with PESA
No state government should have any power to overrule any recommendation of the Gram Sabha.
Way Forward – In the development offensive against the Maoists, PESA is a crucial weapon. Hence, it needs comprehensive reforms in provisions and implementation for holistic upliftment of tribal areas.
Article 368 of Part XX of Indian Constitution deals with amendment of constitution.
Comments on Indian Constitution
Neither too
rigid like constitution of USA nor too flexible like Britain
But synthesis
of both
Present situation-
Parliament cant amend those provisions which form basic structure of
constitution (Supreme Court judgement in Keshavananda Bharti case,1973)
Method of Amendment By Article 368
Can be
initiated in any House of Parliament but not State Assembly
Can be introduced by Minister or Private Member & doesn’t require
permission of President
Bill must be
passed by Special majority in both the houses.
If there is
disagreement between two houses there is no provision of joint sitting
If Amendment
seek to change Federal Structure then must be ratified by half of states
by Simple Majority
After that bill
sent to President for his assent and President
must give his assent. He can neither hold nor send bill for reconsideration (added by 42nd
Amendment)
1 . Amendment by Simple Majority
Number of provisions (which are not very significant are) outside scope of Article 368 & can be Amended by Simple Majority
And these are
Admission or establishment of new states
Formation of new states or changing boundaries of existing states
Creation or Abolition of Legislative Councils in States
Quorum in Parliament
Salaries & allowances of MPs
Use of English language in Parliament
Delimitation of Constituencies
Use of official language
Fifth & Sixth schedule
Elections to Parliament & State Legislatures
2. Amendment by Special Majority
Majority of Amendments of Constitution can be done by Special Majority
This way Amendments can be done in
Fundamental Rights
Directive Principles of State Policy
All other provisions not included in 1st and 3rd Category
3. Special Majority and Consent Of States
Those provisions which seeks to alter Federal Structure of Union done like this
Include
Election of President
Extent of Executive powers of Union & State
Supreme Court & High Court
Distribution of Legislative Powers of Union & States
Any of the list of 7th schedule
Representation of states in Parliament
Article 368 itself
Why so many amendments to the constitution ?
Constitution is the Supreme
law of the land . A law can remain supreme and effective only if it can
fulfil the interest of the different sections of the society and keep it
orderly. Interest of the people evolve with time and in order to remain
relevant , constitution has to be dynamic and a
living document ,
thereby , amending it periodically becomes inevitable
This does not mean that Indian
Constitution is too flexible to be easily amended . It is very finely balanced and combines the
elements of Rigidity (like US) and Flexibility (like UK) .
It gives leverage to
Parliament for making cosmetic
amendments by Simple Majority and keeps a tight check for critical changes by 2/3 majority
Most importantly , it
maintains a Federal Balance with acceptance of amendments by half the states that relate to
Centre State relations
Overall, Amendments have
helped by creating new
articles to meet the changing needs and modifying others to remain
relevant .
Jawahar Lal Nehru in Constituent Assembly – ” While we want this Constitution to be as solid and as permanent a structure as we can make it, nevertheless, there is no permanence in Constitution. If you make anything rigid and permanent , you stop a nation’s growth .”
Basic Structure of Constitution
Judicial history that led to Doctrine of Basic Structure
IT BASICALLY IS FIGHT BETWEEN EXECUTIVE & JUDICIARY IN WHICH EXECUTIVE AIMS TO INCREASE ITS POWER AND JUDICIARY TRIES TO SAFEGUARD ITS POWERS
1 . Shankari Prasad vs Union of India(1951)
Article 368 not only provide method to amend constitution but is also source of power for Parliament to amend constitution (ie Constitutional Amendment is not Law under Article 13 and hence beyond Judicial Review)
2. Golaknath Vs State of Punjab (1967)
Supreme Court ruled that
power to amend constitution of India is not vested to Parliament under
Article 368 but under Article 248
Hence situation was
Article
368
Describes
method to Amend Constitution
Article
248
Which
states that on Residuary Subjects
,Parliament will legislate and power to amend constitution also
derived from it
Implication:
All laws made using 248 are subjected to Judicial Review under Article 13 .
Supreme Court held that
there are implied limitations on
Amending Powers of Legislature and Fundamental Rights can be abrogated by
Constituent Assembly only.
3. 24th Amendment,1971
To nullify Golaknath judgement
Amended Constitution such that
Article 368 gives power to
Parliament to amend constitution and hence it is out of Judicial Review
under Article 13
It is compulsory for the
President to give assent to the Constitutional Amendment bill
4. Keshavananda Bharti Vs State of Kerala, 1973
Said three things
24th Amendment is
Constitutional
It over ruled Golaknath
Judgement and said Article 368 gives power to Parliament to amend
Constitution
But put other
restriction on Parliament that Amending Power of Constitution can’t alter BASIC STRUCTURE of Constitution
And what is Basic
Structure would be decided by Supreme Court from time to time
5. 42nd Amendment, 1976
Amending power of Parliament is Supreme and it can’t be stopped even on the basis of DOCTRINE OF BASIC STRUCTURE
6. MINERVA Mills Vs Union of India, 1980
Supreme Court declared above provision of 42nd Amendment to
be Unconstitutional
Judicial review cant be taken
away from Supreme Court as it is Basic Structure of constitution.
7. Waman Rao Case,1981
Supreme Court adhered to
doctrine of basic structure
Clarified that it would apply
to constitutional amendments enacted after April 24, 1973
What is Basic Structure of Constitution ?
It was propounded in Keshavananda Bharti Case . Supreme Court is yet to define or clarify basic structure. But from various Judgements following things emerged as Basic structure
Supremacy of
Constitution
Separation
of powers among three organs
Sovereign,
Secular & Republican nature
Federal Character
of Constitution
Unity
& Integrity of nation
Welfare
state
Judicial Review
Freedom
& Dignity of Individual
Parliamentary System
Rule of
Law
Balance
between Fundamental Rights & DPSP
Free
& Fair elections
Principle
of Equality
Independence
of Judiciary
Limited power of Parliament to amend
constitution
Effective
access to Justice
Secularism
(SR Bommai Case)
Power
of Supreme Court under
Article 32,136,141,142
Keshavananda
Judgement – Since the Constitution
had conferred a limited amending power on the Parliament , the
Parliament can not under the exercise of that limited power enlarge that very
power into an absolute power . The donee of a limited power cannot by the
exercise of that power convert the limited power into an unlimited one.
Reaffirmment of Basic
Structure came in Indira Nehru Gandhi vs Raj Narain (1975) which
declared 39th Constitutional Amendment to be unconstitutional (39th Amendement
removed the power of Supreme Court and
other courts to adjudicate on elections of President, VP , PM etc) . Court held
that Free and Fair Elections and Rule of Law are Basic Features of constitution
Present Debate : Where to draw line ?
There is debate that what constitute Basic Structure of Constitution . Judiciary is increasing the scope of Basic Structure and experts fear that one day, whole of Constitution can be included in Basic Part of Constitution.
The Constitution of any country is considered to be sacrosanct and foundational law. All articles and provisions of the constitutions are important . The question then arises can it be then interpreted to mean that some provisions are more important or basic and others are secondary. Perhaps it is time , Parliament should sit down and try to debate on what constitutes Basic Structure and insert Basic Features of Constitution by creating Schedule in Constitution itself as done by Germany.
This article deals with ‘Emergency Provisions.’ This is part of our series on ‘Polity’ which is important pillar of GS-2 syllabus . For more articles , you can click here
Introduction
Article 352 to 360 of Part XVIII of Indian Constitution deals with Emergency Provisions.
Indian Constitution provides three types of emergencies
Emergency due to War,
External Aggression or Armed Rebellion
Article 352
National Emergency
Emergency due to failure of Constitutional Machinery in State
Article 356
Presidents Rule
Financial Emergency due to threat to financial stability of India
Article 360
Financial Emergency
Rationality of Emergency Provisions
To enable the Central Government to meet any abnormal situation effectively
Converts federal structure into unitary without any amendment
Constituent Assembly Debates : Dr Ambedkar claimed that the Indian federation, unlike any other federation, in times of emergency, could convert itself into an entirely unitary State
1 . National Emergency
Grounds on which National Emergency can be declared
President can declare it when security of India or part of India is threatened by war or external aggression or armed rebellion.
Can be declared before that happen when danger is imminent
Types of National Emergency
External Emergency
War or External Aggression
Internal Emergency
Armed Rebellion (earlier it
was Internal Disturbance – 44th Amendment changed it)
Duration & Approval
Must
be approved by Parliament within 1 month (44th Amendment Act
)(
earlier 2 months)
Need to be approved again after subsequent 6 months(earlier once started remains
indefinitely till Executive desired)
It needs to
be passed by Special Majority by both the Houses of
Parliament (earlier Simple Majority)
Revocation of National Emergency
Can be revoked if Lok Sabha passes the resolution with Simple Majority (only Lok Sabha , Rajya Sabha not required) – added by 44th Amendment
Hence process to declare emergency is difficult than to revoke it
2 . President’s Rule
Grounds on which President’s Rule can be declared
Article 356
If President is satisfied that situation has arisen in State that government cant
be carried on in accordance with the provisions of Constitution
Article 365
When State fails to comply with or
to give effect to any direction from Centre, it is lawful for President to
say that government is not carried in accordance with Constitution
Approval & duration
Approval
Must be approved within 2 months by both Houses with Simple
Majority
Duration
If approved continues for 6 months upto maximum period of 3 years with approval each 6 months by Parliament
44th Amendment : can extend beyond 1 year on 2 grounds 1. National Emergency in place in whole country 2. Election Commission certify that situation not conducive to hold elections
Effects of President’s rule
President dismisses
State Executive including Chief Minister
Governor on
behalf of President carries State Administration
President
either suspends or dissolves State Legislative Assembly
Laws made by President continue to be operative even after
President rule is revoked
Use of Article 356
More than 100 times and many times for political and personal gains
Kerala & UP
9
Punjab
8
Arbitrary use of President’s rule
Issue : expression “ breakdown of constitutional machinery” has not been defined in the Constitution.
Although Ambedkar promised Article 356 will remain dead-letter. But history proved him wrong.
In March 1953, the country’s first non-Congress government, headed by Gian Singh Rarewala in the PEPSU was dismissed and President’s Rule was imposed
In 1957, Kerala saw the world’s first elected communist government coming into power. A series of progressive measures, opposed by the Catholic Church in Kerala, as well as American pressure engineered by the CIA, made the work of the government difficult. In 1959, then Congress President Indira Gandhi, convinced Prime Minister Jawaharlal Nehru that E.M.S. Namboodripad’s government deserved to be dismissed and President’s rule should be imposed.
1988 Sarkaria Commission report commented on the arbitrariness with which Article 356 was used: only 26 out of 75 cases until then were “just”
1980s : Farooq Abdullah’s government was replaced by his brother in law GM Shah using Article 356. This played major role in alienating people of Kashmir from democratic process .
In just about 2 years, Morarji Desai and Charan Singh governments dismissed 12 governments. Until the mid-1990s, President’s Rule was imposed in a state roughly every 6 months
Central Government use the office of Governor for this. Governor acts as agent of the Union and many a times try to destabilise the State Governments. Before Bommai Judgement , Governors went to such an extend that he tested the Majority in his official residence.
Buta Singh Bihar Assembly dissolution case : court observed that Governor’s report could not be taken at face value and must be verified by the council of ministers before being used as the basis for imposing President’s rule.
Judicial Review of President’s Rule + SR Bommai Case Guidelines
Judicial Review is present in case of Article 356
38th Amendment
Presidents decision is final and conclusive& cant be
challenged
44th Amendment
President’s decision is not beyond Judicial Review
In S.R. Bommai case 1994, Supreme Court gave guidelines
April 1989, Karnataka CM S R Bommai requested Governor P Ventakasubbiah for an opportunity to prove his majority in the Assembly as the leader of the Janata Dal Legislature Party. It was denied, and Bommai’s government was dismissed and President Rule was imposed. Ultimately, the matter reached the Supreme Court. Supreme Court ordered that
Majority to be tested on floor of the house only & not anywhere else & was confirmed in Rameshwar Prasad v. Union of India (2005)
President Rule is under Judicial Review
Burden lies on centre to prove the correctness of President rule
State Legislature should be dissolved only after Parliament approval (is kept in suspended animation till that time)
Secularism is basic feature of Constitution & government pursuing anti secularism is liable to action
Article 356 could only be resorted to when there was a breakdown of constitutional machinery, as distinguished from an ordinary breakdown of law and order.
Article 356 is an exceptional power to be used in special situation
Supreme Court was of the view that such acts are bad for the democracy because if democratically elected governments are removed like this, people will loose their faith from democracy (reiterated in Uttarakhand and Arunachal Pradesh Case of 2016)
Article 356 was invoked on 40 occasions in the 15 years before Bommai judgement , and only on 11 in the 15 years after 1994. A combination of factors, including the
emergence of coalition governments at centre with representation from regional parties,
assertive President’s office
Assertive judiciary
checked the
trend.
Even after Bommai Judgement, trend is emerging that Governor destabilise the government and impose President’s Rule. Since 2 months are given to pass it from Parliament, in the meantime new leader manipulates situation by indulging to horse trading and forming government. Hence, provision of 2 months is used by Governor to abuse his power and virtually this process is outside the oversight of Parliament.
Role of President in Checking this
President shouldn’t act blindly as in 1997, President K.R. Narayanan, in a first for any Indian
president, returned to the cabinet its recommendation to impose direct
central rule in Uttar Pradesh. Later, he returned a similar recommendation by another
central government to dismiss the state government in Bihar.
Hence, apart
from Judiciary, President can act as check and balance
Constitution Assembly Debates on Emergency provisions
We included it in the Constitution when B.R. Ambedkar gave an assurance that it
would remain a dead letter.
Shibban Lal Saksena said, “we are reducing the
autonomy of the states to a farce”.
Various Commissions on Article 356
1 . Sarkaria Commission (1987)
Article 356 should be used
very sparingly, in extreme cases and only as a matter of last resort.
No dissolution of Assembly
till proclamation is ratified by the parliament
2 . National Commission for Reviewing the Working of Constitution (2002)
A warning should be issued to the errant State, in specific terms that it is
not carrying on the government of the State in accordance with the
Constitution. Before taking action under Article 356, any explanation
received from the State should be taken into account.
Safeguards corresponding to that of Article 352
should be incorporated in Article 356 to enable Parliament to review continuance in force of a
proclamation.
3. Punchhi Commission (2008)
Imposition of localized emergency i.e. in only a district or a part of it.
It also recommended suitable amendments in Article 356 to incorporate the
guidelines of Supreme Court in S.R Bommai case (1994) with regards to invoking of
the article.
Use of National Emergency so Far
Has been used three times
1962
– Due to Chinese Aggression – Was in use till 1968 – Hence, no fresh proclamation for Pakistan War of 1965
1971
– Due to war with Pakistan – This emergency was in operation when Third Emergency was provoked. Both ended in December , 1977
1975
– Due to Internal Disturbance ( most controversial so far) – Ended in 1977,December
3. Financial Emergency
Grounds on which Financial Emergency can be declared
Article 360 : President can proclaim financial emergency if satisfied that situation has arisen in which Financial Stability of country or part of it is threatened
Approval & duration
Approval
Must be approved by both houses within 2 Months by Simple Majority
Duration
Once approved will remain in effect indefinitely
till revoked by President
Effects of Financial Emergency
Executive at center can direct any state to observe such canons of financial propriety as specified by it
Ask states to reduce salaries and allowances of all or any class of persons, reserve all money and financial bills for approval by President
President may issue direction for reduction in salaries and allowances of all or any class of persons serving under union and judges of Supreme Court and High Court
Use of Article 360
Never used : in 1991 there was financial crisis but not financial emergency