INDIAN CONSTITUTIONAL LAW

THE NEW CHALLENGES

UNIT I

1) Concept of Federalism
Federalism is a system of government in which two sets of a government
operate on the same people. In this system of government two or more
separate States unite under a common central or federal government while
retaining a considerable degree of local autonomy. In such a State, the States
or provinces or units are subject to the national government in important
matters and the State government has its own independence in allotted
sphere. It constitutes a complex governmental mechanism in which the
powers of the government are divided between a government for the whole
country and a government for the parts of the country in such a way that
each government is legally independent within its own sphere.
However, it differ from a con-federation, a loose union of States. It is neither
a unitary State nor a confederation but a federal State stands between both
of them.
A federal State is a political contrivance intended to reconcile national unity
and power with the maintenance of “state rights”

Although modern federalism is understood in the context of the Constitution

of the United States, the story of the growth of a federal nature of
government has been historical. The Federal nature of the Constitution
depends on several factors, including the degree of plurality in the society.
Professor Livingstone a modern American scholar described Federalism as
more “functional” than an “institutional concept;

Types of Federalism:
There are two principal modes of the formation of federal governments.
i) Federation is created by centripetal forces, that is by voluntarily
agreement. The federations of USA and Australia havebeen the
products of centripetal forces

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 ii) Second, federation comes into existence because of centrifugal forces
that is by transformation of unitary polity into a federal union. The
Federations of Canda and India are the outcomes of centrifugal forces.

Federalism is a complex phenomenon and hence calls for the presence of

number of elements. Professor K.C. Wheare rightly observed that, “federal
government” is a rare phenomenon because of its several pre-requisites.
According to Prof. K.C. Wheare there must be presence of following
requirements, that is pre-requisites of a federation;

1) The federal principle or federal situation

2) There must be a strong desire to have a federation
3) The federating States must have a desire for union rather than unity;
4) The desire to have a federation must be real and as a matter of fact;
5) The federating units must have the capacities to work the system they
desire;
6) The federating units as far as possible must be equal states.
7) There should be general willingness to yield to the authority of law
courts.
8) The federating states should be inspired and bound together by
common national sentiments;

There must be a desire for the Union and not for the Unity is created among
the constituent members of a federation. This owe to many other
commonalities between the member states of the federation, such as
1) The geographical continuity of states or provinces;
2) The affinity of language, relition, customs and culture
3) The common security objectives from external aggression;
4) The hope of economic advantages
5) The common political traditions;
6) Common subjection for a long time under the same ruler;
7) History of previous association of the federating States;

There is no consensus among the Jurists regarding the model of Federal

Framework, but the following are the hallmarks of a federal Constitution
1) Federation is a union of autonomous units
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 2) Written and supremacy of the Constitution;
3) Dual polity and division of powers;
4) Dual citizenship
5) Deal set of laws and courts, such as federal law, courts and State law
and courts;
6) Independent judiciary and Doctrine of Judicial Review (Article 13)
7) Two sets of a government operate upon the same people
simultaneously;

The idea of federation is not a static but dynamic one. In all the classical
federal constitutions, such as United States, Australia and Switzerland, there
has been a transformation on account of either judicial interpretations or by
formal amendments.

There have been different stages of Federalism. They are:

i) Co-ordinate Federalism: It means between the two governments the
absence of subordination of one over the other and perfect equality
exists;
ii) Co-operative Federalism: It means the federal as well as governments
co-operate each other to resolve the problems of common interest
iii) Organic or integrated Federalism: In such a model the central or
federal government enjoys an upper hand over the constituting units.
This has been clearer in the Constitution of India.
iv) Competitive Federalism: In the formative stages of federalism a spirit
of competition between the Centre and States was predominant. “The
normative theory of competitive federalism is congenial to economists
in particular;

In the backdrop of the above aspects of the federal system, the characteristics
of the Constitution of India are as follows:
While moving the draft Constitution in the Constituent Assembly, on
November 4, 1948 Dr. B R Ambedkar, the principal architect of the Indian
Constitution, after comparing the characteristics of US federal Constitution
and proposed Indian Constitution, rightly described it as blending of federal
as well as unitary systems and avoided the two weaknesses from which the
Federalism suffers, that is one is rigidity and the other is legalism. Having
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compared with the US and Australian federal models, he said that Indian
Constitution presents a flexible federation. Accordingly Article 1 of the
Constitution made the declaration that, India shall be a union of States and
the large number of constitutional articles conferred more powers on Union
Government rather than State Government including the Special Emergency
Powers to the Union Government. As a consequence the Indian Constitution
is described as quasi federal Constitution; The Supreme Court of Indiain its
milestone decision in State of West Bengal v. UOI while refuting the claims
of State sovereignty held that the Indian Constitution as not being true to
any traditional pattern of federalism.

Nature of The Indian Constitution:

The Indian Constitution possesses most of the essential features of a federal
constitution as mentioned above. It is a dual polity having two sets of
governments at the state and the centre level. There is division of powers
among them and each of them is supreme and independent in its own sphere.
It is written and the amendment procedure is rigid whereby it cannot be
amended without the consent of majority of states. It provides for
independent judiciary and a Supreme Court for settlement of the disputes
between centre and states. The Indian constitution is quasi-federal and
contains more unitary features than federal features. Thus Indian
Constitution can be called as a flexible federation.

There are certain contrasts and similarities between the traditional federal
constitution and Indian Constitution.
i) Mode of formation Indian Constitution is Centrifugal Constitution
ii) Position of States Indian Constitution is with Indistructable Union
with Destructable States;
iii) Federal equality In Indian Constitution, the representation depends on
the size and population of the States
iv) Residuary powers The Residuary powers are vested with the Union;
v) Dual citizenship – In India there is no dual citizenship. All the citizens
are called Indian Citizens;

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2) Allocation of Resources:
Allocation and share of Resources – Distribution of Grants in Aid
Fiscal Federalism in India:
Fiscal dimension of federalism are a reflection of the political federal
structure in India. The traditional subjects of concern of fiscal federalism,
such as the assignment of taxes and responsibilities as well as the correction
of vertical and horizontal imbalances, continue to remain important in India.
The Indian Constitution has not only provided a frame work for social and
political development but also established the national ideals and, laid down
the manner in which they were to be pursued. The members of the
Constituent Assembly skilfully selected and modified the provisions they
borrowed and applied to their task two concepts viz. “Accommodation and
Consensus”

The Allocation of Resources in Indian Constitution are provided under

1) VII Schedule and
2) Article 246

The Indian Constitution has, under Article 246 and Seventh Schedule,
distributed powers and allotted subjects to the Union and the States with a
threefold classification of subjects:
i) List I or the Union List 97 Entries invests the Union with all functions
of national importance such as defence, external affairs,
communications, constitution, organisation of the supreme court and
the high Courts, elections etc. The present items are 97 entries
ii) List II or the State List – 66 Entries invests the states with a number
of important functions touching on the life and welfare of the people
such as public order, police, local government, public health
agriculture, water, land etc.
iii) List III or the Concurrent list – 47 Entries which includes
administration of justice (exc. Supreme Court and High Courts),
economic and social planning, trade and commerce, etc. It is of interest
to note that higher education, forests and population control were all
added to this list in 1977 during the emergency when it was felt that
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 the States were not doing justice to these subjects of national
importance.

Accordingly, the Parliament has exclusive powers to make laws regarding

matters enumerated in List I. On the other hand, the Legislature of any
state has exclusive power to make laws for that state regarding any of the
matters enumerated in List II, subject to other clauses of Article 246. With
regard to List III, both the Parliament and State Legislature can make laws
but in case of any conflict, the law made by Parliament will prevail (Article
254). The residuary functions, that is those not included in either lists I or II,
vest with the Union. The Union and State lists include the powers of
taxation as well.

The enumeration of taxation powers placed in the Union List includes tax on
income other than agricultural income, excise duties, customs and corporate
tax. Recently service tax had been included in view of diminishing
importance of customs – (Article 246-A)

Constitutional Provisions for Distribution of Revenues between the Union

and the States in India
Financial relations are the most important aspect of Centre-State relations.
No system of federation can be successful unless both the Union and the
States have at their disposal adequate financial resources to enable them to
discharge their respective responsibilities under the Constitution.

In India, the scheme of distribution of sources of revenue between the Centre

and the state is based on the scheme laid down in the Government of India
Act, 1935.

The legislative power to make a law for imposing a tax is divided as between
the Union and States by means of specific Entries in the Union and State
Legislative Lists in Schedule VII.
The legislative power, in regard to taxation, belongs to the Parliament. The
Constitution clearly makes the provision, of sharing the distribution of the
tax revenue between the Union and the States. The Union has a share of
taxes like the Income Tax, the Corporate tax and customs tax etc.
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The States collect the land revenue, the stamp-duty, the succession duty, the
estate duty, the sales taxes etc.
Finance Commission: Article 280 provides for establishment of finance
Commission by the President within a period of 2 years from commencement
of the Constitution and thereafter at the expiration of every 5th year or
earlier.

Clause (2) of that Article empowers Parliament to determine by law the

requisite qualifications of its members and the manner of their selection.

Clause (3) of the same Article enumerates the duties of the Finance
Commission.

It reads as under: "(3) It shall be the duty of the Commission to make

recommendations to the President as to—

a) The distribution between the Union and the States of the net proceeds
of taxes which are to be, or may be, divided between them under this
Chapter and the allocation between the States of respective shares of
such proceeds;

b) The principles which should govern the grants-in-aid of the revenues of

the States out of the Consolidated Fund of India;

c) Any other matter referred to the commission by the President in the

interests of sound finance

The Finance Commission is to do justice between the Centre and the States,
and between a State and a State. Its purpose is to assure the States that
they will have a fair deal. After the constitution of the Niti Ayog, the Finance
Commission’s role in allocation of resources to States has been devalued to a
great extent.

Federalism involves distribution of powers between the Centre and the

State with autonomy for both the units. The Constitution provides for such
distribution, but this shows a stronger centre. The reasons for this are
obvious.

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Article 245 and 246 enunciates about the distribution of legislative powers.
There are three lists Union list, State list and Concurrent list. The residuary
powers are vested in the Union.

The distribution of revenue indicates clear tendency towards centralisation.

The resources of the Centre ane many and vast but the states have limited
resources while having manifold responsibilities, welfare programs, therefore
the state depends on the centre for funds. These funds are given to the states
on the recommendations of the finance commission in the form of grants. The
control of Union over finance appears to be a violation of Federal Principle
adopted by Indian Constitution

Thus there must be an equitable, just and fair distribution of resources for
the smooth functioning of Federalism in the Country.

3) Inter State Disputes

The States in every federation or Union are bound to have conflict of
interests. Hence, in order to maintain the strength of the Union, it is
necessary that there should be an adequate provisions for judicial
determination of disputes between the units and for settlement of disputes by
extra judicial bodies as well as their prevention by consensus and agreement.

In Indian Federalism we have the following types of Inter-state Disputes

Inter State River Water Disputes

Inter-state Disputes
Inter-State Border Disputes

The Constitutional provisions in this matter are:

Article 131 provides for the judicial determination of disputes between States
by vesting the Supreme Court with the exclusive Original Jurisdiction in the
matter;
Article 262 provides for the adjudication of disputes relating to waters of
inter-State rivers or river valleys

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Article 263 Provisions with respect to an Inter-State Council.

Inter-State river water disputes in India:

Most rivers of India are plagued with interstate disputes. Almost all the
major rivers of the country are inter-state rivers and their waters are shared
by two or more states.

Article 131. Original jurisdiction of the Supreme Court Subject to the

provisions of this Constitution, the Supreme Court shall, to the exclusion of
any other court, have original jurisdiction in any dispute

(a) between the Government of India and one or more States; or

(b) between the Government of India and any State or States on one side and
one or more otherStates on the other; or

(c) between two or more States, if and in so far as the dispute involves any
question (whether of law or fact) on which the existence or extent of a legal
right depends: Provided that the said jurisdiction shall not extend to a
dispute arising out of any treaty, agreement, covenant, engagements, and or
other similar instrument which, having been entered into or executed before
the commencement of this Constitution, continues in operation after such
commencement, or which provides that the said jurisdiction shall not extend
to such a dispute.

Since the States, in every federation, normally act as independent units in

the exercise of their internal sovereignty, conflicts of interest between the
units are sure to arise. Hence, in order to maintain the strength of the Union,
it is essential that there should be an adequate provision for judicial
determination of disputes between the units and for settlement of disputes by
extra judicial bodies as well as their prevention by consultation and joint
action.
While Article 131 provides for the judicial determination of disputes between
States by vesting the Supreme Court with exclusive jurisdiction in the
matter, Art. 262 provides for the adjudication of one class of such dispute by
an extrajudicial tribunal, while Article 263 provides for the prevention of
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inter-State disputes by investigation and recommendations by an
administrative body.

Interstate Council: Article 263

The power of the President to set up Inter-State Councils may be exercised

not only for advising upon disputes, but also for the purpose of investigating
and discussing subjects in which some or all of the States or the Union and
one or more of the States, or the Union have a common interest.

In the exercise of this power the President has already constituted the
Central Council of Health, the Central Council of Local Self-Government, the
Central Council of Indian Medicine, the Central Coun-cil of Homeopathy the
changing role of inter-state council .The inter-State Council was set up under
Article 263 of the Constitution of India videPresidential Order May 28, 1990.

Inter State Disputes

If at any time it appears to the President that the public would be served by
the establishment of a Council charged with the duty of:

(a) Inquiring into and advising upon disputes which may have arisen
between states;

(b) Investigating and discussing subjects in which some or all of the States or
the Union and one or more of the states, have a common interest; or

(c) Making recommendations upon any such subject and, in particular

recommendations for the better coordination of policy and action with respect
to that subject;

It shall be lawful for the President by order to establish such a council, and to
define the nature of the duties to be performed by it and its organisation and
procedure.

The composition of the Inter-State Council as set out in the above mentioned
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Presidential Order includes the Prime Minister, Chief Ministers of all States,
Chief Ministers of Union territories having Legislative Assemblies and
Administrators of Union territories not having Legislative Assemblies,
Governors of States under Presidents Rule, six Ministers of Cabinet rank in
the Union Council of Ministers to be nominated by the Prime Minister and
two Ministers of Cabinet rank in the Union Council of Ministers to be
nominated by the Prime Minister as permanent invitees.

Duties of the Council:

(a) To investigate and discuss subjects of common interest;

(b) Make recommendations for the better coordination of policy and actions
on such subjects; and

(c) Deliberate on such matters of general interest to the States referred by the
Chairman to the Council. It shall have its own Secretariat.

The legislative power to make a law for imposing a tax is divided as between
the Union and the States by means of specific entries in the Union and the
state Lists in Schedule VII of the Constitution.

The legislative power, in regard to taxation, belongs to the Parliament. The

Constitution clearly makes the provision, of sharing the distribution of the
tax revenue between the Union and the States. The Union has a share of
taxes like the Income tax, the corporation tax the customs tax, etc.

The States collect the land revenue, the stamp-duty, the succession duty, the
estate duty, the sales taxes, etc. Further, the mandatory provision for
establishing a Finance Commission once in five years is meant to ensure a
fair and equitable sharing of revenues between the Centre and States.

The Real Status:

The growing sense of regionalism, the inter-state disparity the misuse of the
office ofthe Governors in the State, the extreme centralization and
oncentration of executive legislative and financial powers at the Kinds of
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Centre the dissatisfaction over the functioning of the extra-constitutional
bodies like Planning Commission, National Development Council, National
Integration Council, the declining role of Finance Commission, Inter-State
Council, Zonal Council, the exclusive power of the Centre to negotiate with
foreign government and funding agencies, the growing water and border
disputes have made it imperative to redefine the Centre—State relations.
A number of Committees and Commissions have suggested various remedies
to get rid of this tormenting state of nature, the more notable of them being
the Administrative Reforms Commission, the P.V. Rajamannar Committee,
and the Sarkaria Commission.

Important Meetings:

The Council in its first meeting held on October 10, 1990 had considered the
Recommendations made by the Sarkaria Commission on Centre—State
Relations. Keeping in view the complexities of the Issues involved and their
wider implications, it was decided by the Council that the recommendations
would be first examined by a Subcommittee of the Council and thereafter
considered by the Council. The Sub Committee, which was constituted in
pursuance of the decision of the Council, held six meetings and finalized its
views on 179 recommendations out of 247.

In its second meeting, the Council broadly endorsed the recommendations of

the Sarkaria Commission as finalised by the Sub-committee. In the same
meeting, the Inter-State Council decided to set up a Standing Committee for
having continuousconsultation and processing of all matters for consideration
of the Inter-State Council.

Accordingly the Standing Committee was last reconstituted vide Notification

dated December 5, 1996. The Standing Committee was last reconstituted vide
Notification dated February 7, 2000 with six Union Cabinet Ministers and
eight Chief Ministers. The Standing Commit-tee has, in all, held eight
meetings so far.

The Inter-State Council has held six meetings so far and has taken decisions
on 171 of the 247 recommendations of the Sarkaria Commission.
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Inter-State River Water Disputes (Article 262)

Article 262 authorises the Parliament to provide by law for adjudication of

any dispute or complaint with respect to the uses, distribution or control of
the waters of any inter-State rivers and river valleys. Under Clause (2) of
this Article, Parliament may by law provide that neither the Supreme Court
nor any other Court shall have any jurisdiction in respect of such disputes
and complaints relating to water of inter-State rivers and river valleys.
Under Article 262 Parliament has passed the River Board Act, 1956 and the
Inter-State Water Disputes Act, 1956.

The River Board is meant for the regulation and development of inter-State
rivers and river valleys. This is established on the request of the State
Government to advise the Government. The Water Disputes Act empowers
the Central Government to set up a Tribunal for the adjudication of such
disputes. The decision of the Tribunal shall be final and binding on the
parties to the dispute. Neither the Supreme Court nor any other Court shall
have jurisdiction in respect of any water dispute which may be referred to
such a Tribunal under that Act.

1. THE PROBLEM - In India there are many inter-State rivers. The

regulation and development of the waters of these rivers and river valleys
continues to be a source of inter-State friction. Article 262(1) of the
Constitution lays down that “Parliament may by law provide for the
adjudication of any dispute or complaint with respect to the use, distribution
or control of the waters of, or in, any inter-State river, or river valley”.

Parliament has enacted the Inter-State River Water Disputes Act,

1956. It provides for reference of such a dispute to Tribunals on receipt of an
application from a State, when the Union Government is satisfied that the
dispute “cannot be settled by negotiations”. This dependence of the right of
the States to have a dispute referred to a Tribunal, if the Union Government
is satisfied that the matter “cannot be settled by negotiations” has been
adversely commented upon.

Most of the disputes refer to sharing of waters of inter-State rivers.

Disputes also arise in regard to the interpretation of the terms of an

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agreement or the implementation of the same. The main points of criticism
against the existing arrangements are:

a) They involve inordinate delay in securing settlement of such disputes,

b) There is no provision for an adequate machinery to enforce the award
of the Tribunal.

2. CONSTITUTIONAL PROVISIONS

In the Constitution, “Water, that is to say, water supplies, irrigation,

and canals, drainage and embankments, water storage and water power” is a
matter comprised in Entry 17 of List II. This Entry is subject to the
provisions of Entry 56 of List I.

In the words of an eminent jurist, the reasons for including regulation

and development of inter-State river and river valleys in Entry 56 of List I
are: “In respect of the waters of an inter-State river, no State can effectively
legislate for the beneficial use of such waters,

i. first, because its legislative power does not extend beyond the
territories of the State:
ii. secondly, because the quantum of water available to each of the States
is dependent upon the equitable share of the other States, and
iii. thirdly, a dispute about the waters of an inter-State river can arise
from any actual or proposed legislation of a State".

iv. It is for these reasons that the States cannot legislate on use of waters
of Inter-State rivers and river valleys beyond their State boundaries.
Moreover, efficient use of such waters depends on their equitable
apportionment involving more than one State, which in itself can be a
subject-matter of dispute and hence its regulation and control cannot
be provided for in any State legislation. For the same reason, the
determination of disputes relating to such river waters is provided for
in Article 262.

Parliament may, by making the requisite declaration in public interest

in terms of Entry 56 of List I, enact a law for the regulation and development

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of such inter-State rivers, and river valleys under the control of the Union.
The Parliamentary law would, to the extent of its operation, have the effect of
ousting the power of the State Legislature under Entry 17 of List II.2

The Constitution contains specific provisions regarding resolution of

water disputes. Under Article 262(1), “Parliament may by law provide for the
adjudication of any dispute or complaint with respect to the use, distribution
or control of the waters of, or in, any inter-State river or river valley”. Under
Article 262(2), “Notwithstanding anything in the Constitution, Parliament
may by law provide that neither the Supreme Court nor any other court shall
exercise jurisdiction in respect of any such dispute or complaint as is referred
to in clause (1)”.

The Constitution leaves it to Parliament, by law, to make such provisions as

it thinks fit, for adjudication of such disputes and complaints. The
Constitution further empowers Parliament to decide and provide by law
whether the jurisdiction of courts is to be barred

3. EXISTING ARRANGEMENTS

Parliament has enacted the River Boards Act, 1956, under Entry 56 of
List I, to promote integrated and optimum development of the waters of
inter-State rivers and river valleys. This Act contemplated the appointment
of River Boards by the Central Government in consultation with the State
Governments for advising on integrated development of waters of inter-State
rivers and river valleys. It was expected that these Boards would help in co-
ordinated and optimum utilisation of the river waters and promote
developemnt of irrigation, drainage, water supply, flood-control and
hydroelectric power. However, the provisions of this Act have not been put to
use all these years and the Act has remained a dead letter.

Parliament has enacted the Inter-State River Water Disputes Act,

1956, for settlement of disputes. Section 2(c) of the Act defines 'water dispute'
as “any dispute or difference between two or more State Governments with
respect to

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 i. the use, distribution or control of the water of, or in, any inter-State
river or river valley; or
ii. the interpretation of the terms of any agreement relating to the use,
distribution or control of such waters or the implementation of such
agreement; or
iii. the levy of any water rate in contravention of the prohibition contained
in Section 7.”

Section 3 of the Act reads: “If it appears to the government of any State
that a water dispute with the Government of another State has arisen or is
likely to arise by reason of the fact that the interests of the State, or any of
the inhabitants thereof, in the waters of an inter-State river or river valley
have been, or are likely to be, affected prejudicially by—

a. Any executive action or legislation taken or passed, or proposed to be

taken or passed, by the other State or
b. The failure of the other State or any authority therein to exercise any of
their powers with respect to the use, distribution or control of such
waters; or
c. The failure of the other State to implement the terms of any agreement
relating to the use, distribution or control of such waters, the State
Government may in such form and manner as may be prescribed,
request the Central Government to refer the water dispute to a
Tribunal for adjudication”. The Rules framed under the Act provide,
inter alia, that a State Government, while sending an application
under Section 3 of the Act, should inform the Union Government, of
“the efforts, if any made by the parties themselves to settle the
dispute”.

Section 4(1) of the Act provides that on receipt of an application under

Section 3 from any State Government, the Central Government shall, by
notification in the Official Gazette, constitute a water Disputes Tribunal for
the adjudication of the water dispute if it “is of opinion that the water dispute
cannot be settled by negotiations”.

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4) Centre State Relations
The two levels of Government divide and share the totality of government
functions and powers between themselves. The distribution of powers in
India is as follow:
i. Legislative Relations (Articles 245 to 255)
ii. Administrative Relations (Articles 256 to 263)
iii. Financial Relations (Articles 264 to 293)

With regard to the Legislative powers and Financial Powers the Union
Government has brought several Constitutional Amendments which have
made phenomenal changes in the Federal Structure.
The distribution of Legislative Powers between the Union and the States is
the most important characteristic in a Federal Democracy. The Role of the
Governors and implementation of Article 356 are the contentious issues in
our Constitution, several times leading to conflicts and constitutional
imbroglio leading to Judicial intervention

The Indian Constitution has all the features of a federation with the
specification of financial powers and functional responsibilities of the Union
and the States and the Institutions needed for a federal structure and a well
defined mechanism for intergovernmental transfers to address vertical and
horizontal imbalances which characterize most federations.

The Constitutional scheme of governance at the Union and in the States is

provided in Part XI (Articles 245 to 263) and Part XII (Articles 264 to 298),
with few related provisions on trade and Commerce in Part XIII and on All
India Services in Part XIV.

The Scheme on legislative relations is largely based on the federal principle

of “Subsidiarity” under which what can best be administered from the Union
are kept with the Union (Union list) and those which are more of regional or
local interest are assigned to the Units (State list) with some items of
common concern in what is called in the Concurrent List.

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The Recent trends and conflict in the Union-States Relations:
No doubt whatsoever on the future of the Indian federal system and how the
same had been envisioned in the Constitution, there is Paradigm change in
the Union-State relations which is patently visible in Indian Polity and
becoming an obstruction in the smooth running of the Constitutional
Provisions, frequently leading to skirmishes

The framework of Union-State relationship had worked fairly smoothly till

mid-sixties and the institutions created under or inspired by the Constitution
for this purpose enjoyed complete trust and respect of all concerned. This
harmonious functioning was, perhaps, possible because this period was
characterized by, by and large, a single party that is the Congress Party,
domination of the Governments both at the Union and in most of the States.
As such, the Union-State relations were not really put to any severe test
during this period. Whatever differences or occasional conflicts arose, were
endeavored for mitigation and resolution, not as between two different
Governments but more between two entities of the same system. In a way
this process was facilitated by the fact that the first Prime Minister, Pandit
Jawaharlal Nehru (1947-64) was an iconic figure in the Indian polity and
through his persona was able to wield considerable equation and personal
authority with the State Governments. Thus political process and not the
Constitutional machinery played a major part in Union-State relationship
during this period.

5) Special Status of Certain States

The term special status has been heard more frequently over few years in the
political murmurs when Chief Minister of Bihar, Mr. Nitish Kumar started
demanding special status for Bihar.

Special status of certain States

Though it remained a much heated topic in politics as Nitish based his

support to the Congress in centre based on the demand fulfillment, yet the
demand was denied owing to clear mandate to the Congress party.
But where did this term originate and what special status states mean? The
history for the inception of special status states can be dated way back to

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1969 when Fifth Finance Commission acting in line with the Gadgil formula,
announced special status to 3 states based on their terrain, backwardness
and social issues prevailing. Soon this number reached 11.

Jammu and Kashmir was also accorded the special status state under Article
370. J & K chose to be an independent state after India and Pakistan gained
independence. But Maharaja Hari Singh wanted J &K to be a part of India as
a result of which Article 370 and J & K continues to enjoy the special status
with its own Constitution since Jan 1957. Special status states enjoy certain
privileges and exemptions on account of the backwardness or other barriers
like unfavorable terrain that prevents it from prospering otherwise. By the
Gadgil formula, a special category state gets preference in federal assistance
and tax breaks besides significant excise duty exemptions. This is to help
improve the socioeconomic conditions of the state by attracting large number
of industrialists to establish their manufacturing units inside the state.

The intention is to bring such backward states at par with other states of the
nation and attain progress in parallel with other states. A significant 30% of
the Centre’s gross budget goes to the Special category states.
The demands for awarding special status have been made by earlier leaders
also.

A similar demand along with compensation was made at the time Bihar was
bifurcated to create Jharkhand, but the centre did not give it a compensation
or special category status. Since there are four other states demanding
special status, the difficulty in Bihar getting it increases more. Unlike the 3
states that were accorded special status due to their terrain, Bihar is
demanding it on account of backwardness on socio-economic front. The state
has the lowest per capita income of Rs. 9702 in the country as revealed in a
report by DSES (Directorate of Economics and Statistics). Thus, Bihar lacks
in development because of scarce resources and non-functional governments,
giving a bad shape to growth of the state. The growing regional inequalities
demand the endemic backwardness of the Bihar to be redressed. Huge
employment opportunities can be created with the special category status
being announced for Bihar and help curb the poverty and unemployment in
the state.
19
Special Status Benefits:

90% of the special grants will be available to the state in terms of taxes,
grants, loans and other allowances which have fewer chances of repayment.
Huge industrial taxes and other expense reductions and there are 11 special
states in India.

Scope for the reduction of machinery expenses granted on the plant by 30%
discount will be provided under special status on working capital for the
establishment of industries. 50% will apply to electricity industry costs for
approximately 10 years.

The Significant share of 30% of the central budget is allocated to special

status states and these states avail themselves the benefit of debt swapping
and relief schemes. The central government affords 90% of the overall
expenses of the states and grant 10% of the loan.

List of Special Status States in India

Arunachal Pradesh, Assam, Himachal Pradesh, Jammu & Kashmir,
Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, Tripura and
Uttarakhand.

Difference between Special Status and Special Category Status

There is a huge difference between special status and special category status.
Special status is guaranteed by the constitution of India approved by two-
thirds majority of the houses of the parliament. Special category status refers
to the provision of making specific state as the primary preference in the form
of central assistance and tax breaks. Special status empowers legislative and
political rights while special category status deals with economic,
administrative and financial aspects.
:
6) Concept of Secularism
Secularism, as defined in the Merriam-Webster dictionary, is the
"indifference to, or rejection or exclusion of, religion and religious

20
considerations." In different contexts the word can refer to anticlericalism,
atheism, desire to exclude religion from social activities or civic affairs,
banishment of religious symbols from the public sphere, state neutrality
toward religion, the separation of religion from state, or disestablishment
(separation of church and state)

As a philosophy, secularism seeks to interpret life on principles taken solely

from the material world, without recourse to religion. Secularism draws its
intellectual roots from Greek and Roman philosophers such as Zeno of Citium
and Marcus Aurelius; from Enlightenment thinkers such as Erasmus, John
Locke, Denis Diderot, Voltaire, Baruch Spinoza, James Madison, Thomas
Jefferson, and Thomas Paine; and from more recent freethinkers and atheists
such as Robert Ingersoll, Bertrand Russell, and Christopher Hitchens. It
shifts the focus from religion to other ‘temporal’ and ‘this-worldly’ things with
emphasis on nature, reason, science, and development.

Secularism in India means equal treatment of all religions by the state. With
the 42nd Amendment of the Constitution of India enacted in 1976, the
Preamble to the Constitution asserted that India is a secular nation.
However, neither India's constitution nor its laws define the relationship
between religion and state. The laws implicitly require the state and its
institutions to recognise and accept all religions, enforce parliamentary laws
instead of religious laws, and respect pluralism. India does not have an
official state religion. In matters of law in modern India, however, the
applicable code of law is unequal, and India's personal laws - on matters such
as marriage, divorce, inheritance, alimony - varies with an individual's
religion. Muslim Indians have Shariabased Muslim Personal Law, while
Hindu, Christian and Sikh Indians live under common law. It is further
complicated by the fact that many Hindu temples of great religious
significance are administered and managed by the Indian government. The
attempt to respect unequal, religious law has created a number of issues in
India such as acceptability of child marriage, polygamy, unequal inheritance
rights, extra judicial unilateral divorce rights favorable to some males, and
conflicting interpretations of religious books

21
Secularism as practiced in India, with its marked differences with Western
practice of secularism, is a controversial topic in India. See also pseudo-
secularism Supporters of the Indian concept of secularism claim it respects.
Supporters of this form of secularism claim that any attempt to introduce
uniform civil code, that is equal laws for every citizen irrespective of his or
her religion, would impose majoritarian Hindu sensibilities and ideals.
Opponents argue that India's acceptance of Sharia and religious laws violates
the principle of Equality before the law.

Secularism is a politically charged topic in India and often divides political

factions. While there are many secular political parties which enjoy
widespread support especially in Kerala, there are also parties that advocate
the idea of India as a country for only one religious community. Complaints
have been raised from different factions that secularism has been selectively
applied in policy to suppress opposing religious views.

7) Religious Fanaticism

Religious fanaticism is uncritical zeal or with an obsessive enthusiasm

related to one'sown, or one's group's, devotion to a religion – a form of human
fanaticism which could otherwise be expressed in one's other involvements
and participation, includingemployment, role, and partisan affinities

Christianity

Ever since Christianity was established, some of those in authority have

sought to expand and control the church, often through the fanatical use of
force. Grant Shafer says, "Jesus of Nazareth is best known as a preacher of
nonviolence" , although in Matthew, he says, "Think not that I am come to
send peace on earth; I came not to send peace, but a sword." The start of
Christian fanatic rule came with the Roman Emperor Constantine I.

Ellens says, "When Christianity came to power in the empire of Constantine,

it proceeded almost to viciously repress all non-Christians and all Christians
who did not line up with official Orthodox ideology, policy, and practice". An
example of Christians who didn't line up with Orthodox ideology is the
22
Donatists, who "refused to accept repentant clergy who had formerly given
way to apostasy when persecuted".

Fanatic Christian activity, continued into the Middle Ages with the
Crusades. These wars were attempts by the Catholics, sanctioned by the
Pope, to reclaim the Holy Land from the Muslims. However many Catholics
see the crusades as a just war in self-defense. Charles Selengut, in his book
Sacred Fury: Understanding Religious Violence, said: The Crusades were
very much holy wars waged to maintain Christianity's theological and social
control. On their way to conquering the Holy Land from the Muslims by force
of arms, the crusaders destroyed dozens of Jewish communities and killed
thousands because the Jews would not accept the Christian faith. Jews had
to be killed in the religious campaign because their very existence challenged
the sole truth espoused by the Christian Church.

Extremism within Islam goes back to the 7th century to the Kharijites.
Osama bin Laden and Ayman al-Zawahiri have promoted the overthrow of
secular governments.

Sayyid Qutb, a figurehead of the Muslim Brotherhood in Egypt, was

influential in promoting a Pan-Islamist ideology in the 1960s.
The Qutbist ideology has been influential in jihadist movements that seek to
overthrow secular governments, and Qutb's books have been frequently been
cited by Osama bin Laden and Anwar al-Awlaki.

Since Osama bin Laden's fatwa in 1998, radical jihad has increasingly
become an internationally recognized term. Bin Laden's concept, though, is
very different from the actual meaning of the term. In the religious context,
jihad most nearly means "working urgently for a certain godly objective,
generally an imperialist one".

23
Characteristics of Religious Fanaticism

Religious fanaticism has its nuances and no list of traits will ever fit every
fanatic, but here's a few

1) Literal interpretations
2) Close-mindedness (i.e.”The Bible can’t be wrong”)
3) Narrow Education (i.e. I only need to read one book; very rarely have
any of them studied multiple religions in-depth)
4) Determination (i.e. They are willing to exert their worldview onto
others via violence)
5) Resilience (You can spit at me, torture me, or kill me, but you will not
change my mind
6) Superstition

8) Definition of State (Article 12), Need for widening the definition in the
wake of Recent Developments

24
22) Doctrine of Public Trust
Public Trust Doctrine

The Roman Empire has developed this legal theory. The public trust doctrine
primarily rests on the principle that certain resources like air, sea, water,
and the forest have such great importance to the people as a whole and it is
unjustified to make these resources subject to private ownership. The said
resources are a gift of nature and there should be available free for all. The
doctrine enjoins upon the government to protect the resources for the
enjoyment of the general public rather than to permit their use for private
ownership or commercial purposes. Various public properties including
rivers, seashores, and the air are held by the government in trusteeship for
the uninterrupted use of the public so the government cannot transfer these
properties to any private party who may interfere with the interest of the
public at large. The doctrine was first mentioned in India:

M.C Mehta vs Kamal Nath

In this case, the Supreme Court applied the term public trust with regard to
the protection and preservation of natural resources. The state government
granted a lease of forest land to a private company for commercial purposes
but the area was ecologically balanced and rich with greenery. So the court
held this kind of area cannot be granted on lease to a private owner for
commercial gains.

M.I Builders Pvt, Ltd vs Radhey Shyam Sahu and Ors.

Here the Lucknow Nagar Mahapalika or the Lucknow city corporation

granted permission to a private builder to construct an underground
shopping complex but it was against the municipal act and also the master
plan of the Lucknow city. The court added that the land of immense value
that had been handed over to construct an underground shopping complex is
a violation of the public trust doctrine.
So the court held that there may be a public park which may fulfill the
environmental necessity and use by the public at large.
Precautionary Principle
25
The precautionary principle has been evolved from the Stockholm convention.
In developing countries like India, exploitation of natural resources is
essential through industrial development while the international and
national laws and the policies have already provided various guidelines
regarding the term sustainable development which requires special attention
to bring awareness aiming industrial and others who engaged in the
exploitation of natural and manmade resources for economic progress. The
principle implies that there is a social responsibility to protect the public
from exposure to harm when the scientific investigation has found risk.
With a view to achieve this goal, the honourable Supreme Court has not only
explained sustainable development but also imposed certain obligations to be
followed by the public at large.

In A.P pollution control board vs professor M.V Nayudu and ors the
Honourable Supreme Court held that the inadequacies of science at the real
basis that has led to precautionary principle of 1982.
The principle of precaution involves preventing environmental harm and
taking some measures to avoid it. Environmental protection should not only
aim at protecting health, property, and economic interest but also protect the
environment for its own sake.

This principle suggests that where there is an identifiable risk of serious

harm e.g. widespread toxic pollution, extinction of species, and a major threat
to essential ecological processes. In the above case, it was also held that there
is a need to see that in the appellant authority under the Water Act and Air
Act and the Hazardous Waste Water Rules 1989 should work properly, and
here the cases under Article 32 and 226 of the Constitution in the Supreme
Court and High Court. It is also the duty of the SC to render justice by taking
all precautions;

Polluter pays principle

It is a principle in the international environmental law where the polluter

pays for the damage done to the natural environment. It is also known as the

26
extended polluter responsibility, whosoever is responsible for the damage to
the environment should bear the cost associated with it. Its purpose is to shift
the responsibility from the government to the public. It is a simple extension
of the principle of fairness and justice.
To enhance the economic efficiency that is to protect the environment without
sacrificing the efficiency of a free-market economic system. The additional
revenues are used to cut income, pay roles, and corporate taxes. Revenues
collected can help to achieve other social goals.

Some drawbacks of the doctrine are that ambiguity still exists in determining
who the polluter is. It can cane difficult to measure how much pollution is
produced. A large number of poor household informal sector forms cannot
bear any additional charge for energy or waste disposal. Pollution can be
shifted to countries with weak legislation.

Conclusion

Under the doctrine of public trust, the state has a duty as a trustee under
Article 48A of the Indian constitution because it is the responsibility of the
state to protect and improve the environment and safeguard the forest and
wildlife of the country. The state’s trusteeship duties have been expanded to
preclude a right to a healthy environment the court also included Article 21
of the Indian constitution which signifies the right to life of every human
being under the territorial jurisdiction of the county.
The precautionary principle provides the policymakers with a simple common
sense approach to evaluate action. It allows for greater protection of the
consumers and environment and requires decision-makers to explain the
rationale behind their decision and quantify the risks to provide objective
information. The government also creates appropriate plans of action giving
good information

In the polluter’s pays principle the idea that the polluter should be made to
pay for damages that they cause damage to the health of human beings and
property of others in order to get a free environment and sound working
conditions, it is very necessary to introduce some guiding principles by the
policymakers through government regarding environmental policies.

27
26) Immunities of Legislature (Art.105) and their members
Parliamentary Privileges is defined by Sir T F May as:
“Some of the peculiar rights enjoyed by each House collectively as a
constituent part of the Parliament and by the members of each House
individually, without which they could not discharge their functions and
which exceed those possessed by other bodies or individuals”

The constitutional provisions regarding privileges of the State Legislature

and Parliament are identical. Articles 105 and 194 provide for privileges of
the Legislature in India. While Art 105 deals with Parliament, Art 194 deals
with State Legislature. The Constitution expressly

Mentions two privileges

a. Freedom of speech in the Legislature

b. Right of publications of its proceedings.
The following chart shows the Privileges available to the Legislature

Each House of Individual Freedom Freedom of Other Qualified

Parliament Members of Publication Privileges Privilege
Speech of
1) Regulation 1) Freedom Proceedings
of internal of debates
proceedings
2) Bar to 2) Immunity
consideration from arrest
by courts of
internal
proceedings of
the House 3) Immunity
3) Privacy in from
regard to damages
Prohibition of
publication of
report of
28
proceedings

4) Punishment 4) qualified
for contempt privilege
read with
361/A

5) Art 121 No 5) freedom

discussion from
about a Judge attending as
of SC/HC witness

6) Right to
exclude
strangers from
its proceedings
and hold secret
sessions

The privileges of Parliament may be explained with reference to the following

heads:
1. Privileges as to Freedom of Speech;
2. Privilege as to Publication
3. Privilege as to Freedom from Arrest;
4. Right to exclude strangers from its proceedings and hold secret
sessions:
5. Privilege to regulate internal proceedings;
6. Privilege to prohibit the publication of its reports;
7. Privilege to hold inquiries and summon witnesses;
8. Privilege to punish members or outsiders for breach of privileges and
contempt of the House.

1) Privileges as to Freedom of Speech: The Indian Constitution expressly

guarantees this privilege in Art 105 which says –
“there shall be freedom of speech in Parliament and that no member of
Parliament shall be liable to any proceedings in any court in respect of
29
anything said or any vote given by him in Parliament or any Committee
thereof”

This Article thus gives absolute immunity from Courts for anything said
within the four walls of the House during the course of proceedings of the
House or its committees. So what is protected is the speech within the
House.
It is to be noted that Clause (1) of Art 105 is expressly made “subject to the
provisions of this Constitution and to the rules and Standing orders
regulating the procedure of Parliament” One of such constitutional
restrictions on freedom of speech is imposed by Art 121. Article 121
prohibits any discussion in Parliament with respect to the conduct of a
Judge of the Supreme Court or a High Court in discharge of his duties,
except when a motion for removal is under consideration of the House.
The freedom of speech is also subject to the rules of procedure of a House
made under Art 203. Under Rules 349 to 356 of the Lok Sabha use of
unparliamentary language or unparliamentary conduct of a member is
prohibited.

2) Right of Publication of its proceedings: Article 105(2) expressly provides

that no member of Parliament shall be liable to any proceeding in any
court in respect of anything said or any vote given by him in Parliament or
any committee thereof, and no person shall be liable in respect of the
publication by or under the authority of either House of Parliament in any
report, paper, votes or proceedings. The protection under this Article does
not extend to publication made by a private person without the authority
of a House. The parliamentary proceedings (Protection of Publication) Act
1956 was passed which provided that no person shall be liable to any
proceedings civil or criminal in any court in respect of the publication of
substantially true report of the proceedings of either House of Parliament
unless it is proved that publication of such proceeding expressly ordered to
be expunged by the Speaker.

In P.V.Narasimha Rao v. State (CBI/SPF) a five-judge Bench of the

Supreme Court by 3:2 majority has held that the scope of protection of
immunity available to the M.Ps. is quite wide and is not confied only
30
against judicial proceedings but is available to them against all civil action
and criminal proceedings for anything said or any vote given by them in
the House of Parliament. The object of the protection is to enable
members to speak their mind in Parliament freely and fearlessly. The
Court held that the MPs. Who had taken bribe and voted in Parliament
against no confidence motion brought against the Narasimha Rao
Government are entitled to the protection of Article 105(2) and are not
answerable in a court of law for alleged conspiracy and agreement. But
MPs. Who had given bribe but not voted on the no-confidence motion are
not entitled to the protection of Art 105(2) and an action can be initiated
against them under the relevant law.

MPs are Public Servants: As regards this question the S.C. held that the
M.Ps. holds an “office” and discharges public duties and therefore under
Section of the Prevention of Corruption Act is a “public servant”
Consequently, a criminal proceedings can be started against them under
the said Act and sanction of the government is not necessary for their
prosecution.
3) Privilege as to Freedom from Arrest: A member of a Parliament cannot
be arrested or imprisoned on a civil proceeding within a period of 40 days
before or 40 days after the session or during the session of the Parliament.
However this privilege is not available to him against criminal charge or
for contempt of court or to preventive detention. Such arrest must be
informed to the officer of the House.

4) Right to exclude strangers from its proceedings and hold secret

sessions: This right has been used by the House of Parliament in England
to go into secret session to discuss some important matters. The House of
Parliament in India enjoy a similar power, however in modern times
secret sessions are held only on exceptional occasions because the voters
must be kept informed of what their representatives are doing in the
legislature.

5) Privilege to regulate internal proceedings: The House has an exclusive

right to regulate its internal proceedings. The courts will not interfere
with the internal proceedings of the house.
31
6) Right to prohibit to publication of its Reports and Proceedings: Both in
England and India , the House has a right to prohibit the publication of its
reports or proceedings or debates or other proceedings. In the famous
Searchlight case the question was whether the publication by a newspaper
of those parts of the speech of a member in the House which were ordered
to be expunged by the Speaker constituted breach of Privilege of the
House.
The Supreme Court held that the publication of expunged portion of
speech constituted a breach of privilege of the House. The effect in law of
the order of the Speaker to expunge a portion of the speech of a member
may be as if that portion has not been spoken. In India the House of
Parliament have definitely the power to prohibit the publication of
proceedings.

7) Privilege to hold inquiries and summon witnesses: The House of

Commons in England has the power to hold enquiries, summon the
records and witnesses. The witnesses also enjoy such privilege. The
position is the same in India also.

8) Privileges to punish Members or outsiders for Breach of Privileges and

contempt of the House: Both in England and India, the House is
empowered to punish its members and outsiders for the breach of
privileges or contempt of the House. This privilege is described as the
“Keystone of Parliamentary Privilege”. There are many instances, where
the members were expelled from the House for breach of privilege or
contempt of the House. For instance, Mrs. Indira Gandhi was expelled
from the House for breach of Parliamentary Privilege.

Legislative Privilege v. Judiciary (Conflict between the Legislature and

Judiciary):

1) In the instant case one Mr. Kesava Singh , who was not a member of
the U.P Assembly was held guilty of contempt of the House and sentenced
to imprisonment for 7 days. His lawyer Mr. Solomon moved a petition for
the writ of habeas corpus alleging that his detention was illegal and mala
fide because he was not given an opportunity to defend himself. The two
32
 Judge Bench of Allahabad High Court granted an interim bail and he was
released. Then the Assembly passed a resolution that the two Judges,
Kesava Singh and his advocate had committed the contempt of the House
and they were directed to be brought before the house. Then the Judges
filed a petition under Article 226 in High Court contending that the
resolution of the House amounted to contempt of Court. The Full Bench of
the Supreme Court passed an order directing the stay of the
implementation of the resolution of the Assembly. The arrest warrant
against the Judges was withdrawn and they were directed to appear
before the House. At this stage, the President of India referred this
matter Supreme Court under Art 143 for its advisory opinion..

The main questions involved in this case are:

1. Whether the Legislature is the sole and exclusive Judge of the
privileges and is competent to punish a person for contempt of the
House and
2. Whether the act of High Court in moving the petition in Supreme
Court for the writ of Habeas Corpus would amount to contempt of
the Legislative?

The Supreme Court by a majority of 6 to 1 held that the two Judges were not
guilty of committing the contempt of the House.
The Supreme Court while answering/deciding the first question made a
distinction between the Parliamentary Privileges in England and
Parliamentary Privileges in India. The former is sovereign, while the latter
is subject to the provisions of the Constitution. Therefore the privileges of
the House in India are subject to judicial review and hence, the U.P.
Assembly had no power to arrest the Judges of the High Court.

2) Eenadu Privilege Case (1984):

A conflict between the legislature and judiciary arose one again. The Chief
Editor of a Telugu Daily, Mr. Ramoji Rao, published in his paper a feature
entitled “Peddala Galata” regarding the members of the then A.P.Legislative
Council. The House ordered him to appear before it. He moved the Supreme
Court, which issued an order to the Secretary of the House not to arrest him.
33
Despite Supreme Court’s stay order, the House resolved to arrest him and to
order him to appear in the House for admonition. At this stage of serious
conflict between the House and the Court, at the request of the Chief
Minister the President of India referred this matter to Supreme Court for an
advisory opinion and the matter was postponed.

34