Consensus still possible

This article was first published in The Pioneer on Saturday, 04 January 2020. | Dr K K Paul

Consensus still possible

The very rationale for establishing the Inter-State Council was to have a wide perspective on resolving frictions. In the present context, we need to remind ourselves of its role.

The Inter-State Council, having its roots in Article 263 of the Constitution, was meant for situations just like the present one but appears to have been lost sight of. There are several advantages of having a written Constitution, the foremost being that even for certain unforeseen eventualities, a Constitutional approach can be incorporated in specific terms. As such, it is entirely to the credit of the Constituent Assembly that it could envisage the importance of Centre-State relations, more than 70 years ago, and included Article 263 in our Constitution, without even a debate.

Titled as “Provisions with respect to an Inter-State Council”, Article 263 states that it would be lawful for the President to establish such a Council, if at any time it appears that public interest will be served. The Council has been charged with the duty of inquiring into and advising upon disputes, which may have arisen between States; investigating and discussing subjects in which some or all of the States or the Union and one or more of the States have a common interest; or making recommendations upon any such subject and, in particular, recommendations for better coordination of policy and action with respect to that subject. There was, however, no opportunity to operationalise the provisions of this Article till almost 40 years after the promulgation of the Constitution.

In the current scenario and in the context of the political developments between the Centre and some States, it would be relevant to recapitulate the envisaged role of the Inter-State Council and the recommendations made by various Constitutional review commissions on its significance. An initial review of various aspects of Centre-State relations was undertaken by the First Administrative Reforms Commission chaired by K Hanumanthaiah (1966-70). The political situation after the 1967 general elections, when for the first time the ruling party at the Centre had to face hostile State Governments, had a definite impact on its recommendations, which among others also included: “The Inter-State or Centre-State differences should be settled by mutual discussions. To the extent possible, these discussions should be held in camera. Only the decisions may be issued in the form of Statements. An Inter-State Council should be constituted under Article 263 of the Constitution; it may consist of: (i) the Prime Minister-Chairman (ii) the Finance Minister (iii) the Home Minister (iv) the Leader of the Opposition in the Lok Sabha (when one is not available, a representative should be elected by the Opposition parties by single transferable vote) (v) five representatives, one each from the five Zonal Councils; any of the Union Cabinet Ministers or Chief Ministers, who may be concerned with a particular subject, maybe invited for discussion when the relevant subject is under consideration; and the proceedings of this Council must be secret. (i) The Inter-State Council will have the functions indicated in Article 263 of the Constitution. (ii) The inter-State Council may be set up, to begin with, for a period of two years. A decision may be taken on its continuance in the light of experience gained.”

However, despite the deteriorating Centre-State relations in the late 1960s, not much could be achieved as the Council was not established. Later, as the political situation underwent a change after the mid-term poll of 1971 and followed a similar trajectory in the States, these recommendations were practically forgotten.

In the early 1980s, the dynamics of Centre-State relations once again came under stress, leading to a virtual breakdown. The atmosphere of consensus and cooperation was giving way to the politics of confrontation. In this strained atmosphere, the Prime Minister constituted a Commission under the chairmanship of Justice (retd) RS Sarkaria, formerly of the Supreme Court. The charter of this Commission was to “review the existing arrangements between the Centre and the States while keeping in view the social and economic developments that had taken place over the years. The review was also to take into account the importance of unity and integrity of the nation for promoting the welfare of the people.”

While endorsing the recommendations of the First Administrative Reforms Commission, Justice Sarkaria added that there should be a Standing Committee of the inter-governmental council under Article 263 of the Constitution. While the general body of the Council was to meet at least twice a year, the Standing Committee was stipulated to meet at least four times a year. A permanent secretariat for the Council was also recommended to be established.

The report of the Sarkaria Commission became available sometime in 1987-88 and it was left to the National Front Government of VP Singh to establish the Inter-State Council in 1990. Though from time to time several meetings of the Chief Ministers have been convened at the Centre on various subjects, these possibly cannot be termed as Constitutional meetings under the Article 263.

Later, the Justice Venkatachaliah Commission, while reviewing the working of the Constitution, affirmed the recommendations of the Sarkaria Commission and emphasised that “in resolving problems and coordinating policy and action, the Union, as well as the States, should utilise the forum of Inter-State Council more effectively. This will be in tune with the spirit of cooperative federalism, requiring proper understanding and mutual confidence and resolution of problems of common interest expeditiously.”

Yet another Constitutional review took place in 2007, where Justice MM Punchhi, former Chief Justice of India (CJI), expressed that “federalism is a living faith to manage diversities and it needs to be supported by institutional mechanisms to facilitate co-operation and co-ordination among the units and between the units and the Union. Co-operative federalism is easily endorsed but difficult to practice without adequate means of consultation at all levels of Government.” The Inter-State Council was seen as an extremely useful mechanism for consensus-building and voluntary settlement of disputes, in case given the autonomy required for functioning as a Constitutional body, independent of the Union and the States.

According to our Constitution, the administrative relations between the Centre and the States are to be governed as per the provisions of Articles 256 and 257. The provisions of Article 257 (1) are quite explicit as it is stated that the executive power of every State shall be so exercised as not to impede or prejudice the exercise of the executive power of the Union, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for the purpose. A similar provision exists in Article 256 for implementation by States of the laws framed by the Parliament.

Several States had raised objections to the powers exercisable by the Centre under Articles 256 and 257 on grounds that they not only diluted the autonomy of States but were also not in the interest of a healthy federal arrangement. In this context, the Commission was of the considered view that there was no case for amendment of these provisions. While at the same time, it must be clarified that “favouring the retention of these provisions is entirely different from advocating easy or quick resort to them. Articles 256 and 257 may be viewed as a safety valve, one which may never come into play but which is nevertheless required to be retained.”

On the subject of Centre-State relations, it would be useful to recall the eminent jurist Justice (retd) VR Krishna Iyer, who elaborated, “The purpose is not to weaken the Centre nor to exaggerate the autonomy of the States, nor to usurp powers rightfully lodged elsewhere. India can be strong only if the Union is strong and it can be strong only if the units are equally strong and operate on a common wavelength in matters fundamental to the governance of the country.”

The very rationale of having a Constitutional body like the Inter-State Council has been to have an extremely wide perspective, which would be all-encompassing, besides having an integrated approach towards building a consensus on policies of national importance. In the present context, we may have lost an opportunity but it may still not be too late.

(The writer is a former Governor and a Senior Advisor at the Pranab Mukherjee Foundation)