Centre State

There are various angles to the Centre - State Relations and the same is not limited tointeraction and relation between the Central Government and the State Government.The Centre State relations looks into all spheres where there are possibility of a Centre -State nexus.This include:-Legislative RelationsAdministrative RelationsFinancial RelationsRole of GovernorsEmergency ProvisionsEconomic and Social PlanningPanchayati Raj InstitutionsResource sharingInter - State Water sharingTogether with this, there are several Social and Economic developments in the nation,which add to the smoothening or roughening of the relation between the Centre and theStateAll these ultimately boils down to Ensuring good Governance to the people of India,promoting welfare, alleviating poverty and illiteracy together with strengthening theunity and integrity of the nation.While doing the study on Centre State relations, the most important factor to be reliedupon, inevitably is the Constitution.Constitutional Framework on Centre- State Relations

PART XI - Art. 245 - 263: - Legislative Relations (A. 245 -255) & Admin Relations(A. 256- 263)

PART XII - Art. 264 - 298; - Financial Relations

PART XIII - Art. 311 (T & C)

LEGISLATIVE RELATION - Based on Subsidiarity:i.e. What can be done from Centre is kept with Union.

Those that can be done by State/ local level is with State.Items of common concern is with both.7th Schedule lists out the three categories of Powers exercisable by Union and State.List 1- Union ListList 2 - State ListList 3 - Concurrent- for Both Union and StateAlso Residuary powers rests with Centre. - Art. 248

These Lists give autonomous powers to the respective Government.Centre can make laws for the Entire Territory or part of IndiaState can make laws within the territory of that State.Doctrine of Territorial nnexus has led to State laws beyong territory being upheld, ifthere is a nexus between the law and the subject which is outside the territory.There are possible ways of overlap between the jurisdictions. This is settled throughseveral Judicial Doctrines.Coming to Concurrent List. This is an area where both Centre and State can make laws.In case of conflict between Central and State laws- The Central laws will prevail over theState laws. - Art. 254.So, even if a State law is passed with assent of President, the Centre can bypassthat law and prevail over the State passed law.

Further more, Centre enjoys a level of supremacy over State List and that is clearfrom the following:1. Power of parliamnet to Legislate in the National interest - Under resolution of UpperHouse.Art. 2492. Power of Parliament to legislate during operation of Emergency - Art. 2503. Power to legislate with the consent of States - Art. 2524. Power to legislate to give effect to International Treaties. Art. 2535. Power to legislate in case of failure of Constitutional machinery in States - Art. 3566. Power of Governor to reserve any legilsation for the assent of President. - Art.200,201

The purpose for such provisions are : to settle issues, to intervene when there isan external aggression or internal disturbance.

The Division of EXECUTIVE POWER is co extensive with the LEGISLATIVE POWERThe coordination in administrative matters is a great matter of concern and theConstitution provides for only little safeguardds.Coordination has been largely promoted through the All India Services.Art. 257 (1) - says that the Executive Power of the State shall be so exercised not toimpede the exercise of executive power of the Union.The Centre i empowered to give directions to the States, here.Non compliance of Provisions can even amount to declaring Emergency in the State as itamounts to failure of Consttutional machinery.To settle issue between the Centre and State, there are Quasi judicialadministrative bodies as well.

Art. 263 - Inter State Council (invoked in 1990 after recoomendation of SarkariaCommission)It is supposed to be a body for consultation and cooperation.to inqire and advice on disoute between Statesto investiate and discuss on subject of common interest.to make recommendation on subject of need.Review:- Poor performance; rarely meets.Art. 262 - Inter State Water Dispute TribunalNot much in use and effect.Due to the ineffectiveness and limitation under which these bodies are placed andcreated, the Government had created several bodies outside the Constitution forthe purpose of Governance and Centre - State coordination.

They include:- NDC, Planning Commission etc.

Thus, it can be seen that India is a functional democracy performing reasonablywell in economic development, but unable to sustain good governance for thewelfare of people, particularly the weak and marginalised sectors.

The Union, in theory continues to be strong in Constitutional terms. But inpractise is unable to deliver the way it could have done. States have becomestronger in politics as the number of regional parties have grew substantially,whereas has weakened in Governance. Despite the Constitutionality, thePanchayaths have remained weak.

THE ISSUES AND CONCERNS IN INTER GOVERNMENTAL RELATIONS

Key Concepts in Constituional GovernanceAs each Constitution is a reflection of its history and disposition of its people, IndianConstitution is in itself unique and has within it some basic embedded features whichremains all together with it.The basic principles which fulfil the criteria of defining the COnstitution is reflected inthe Preamble to the Constition.The shared exercise of power between Centre and State, in a way known as Federalismis enshrined as one such basic feature of the Constitution and therfore neither anamendment nor a repealing law can do away with such a feature.FEDERALISM- QUASI FEDERAL, OR UNITARY WITH FEDERAL FEATURES?

The Constitution does nt expressly declare that it is a Federation.1st Article = India is a Union of States- This is a fundamental feature of any federalstate.Why India was not given a strict federal structure was due to historical reasons.

At the time of independence, the major issue concerned was - 'Unity and Integrityof India. -- (The number of states were in plenty and definitely the leaders wereconcerned of uniting them all into the fabric of one nation). For this reason, a strongcentre was definitely the way out for the framers.However, India's pluralist and diversified nature also called for a federal arrangement.Thus, Indian federalism grew organically providing space for unity in diversity.Most naotable feature of Indian federalism is the vast array of ethnic, cultural, linguisticdiversity - small and large in diffferent parts of the nation. Hence for this reason, aUnion, strong and responsible wsa needed for the coexistence of small and bigger units.Only this could entail democratic governance. Naturally the finance and fiscal issuesalso needed equal focal.Remember, the major task of leaders were setting up a strong political and economicsystem in India.In India, the Constitution forms the instrument of governance. And the federalism andits principles are made possible through the institution of democracy.FEDERALISM IN ITS FUNDAMENTALS IS AN OUTLOOK OF A COMMUNITY IN THEACCOMMODATION OF MULTIPLE IDENTITIES. IN PRACTICAL TERMS, DEMOCRACYMAKES IT POSSIBLE.

Sarkaria Commission stated that Constitution, being an instrument of governance,the strcture has to be accepted as it is, rather than equating it with federalstructures elsewhere. However, a federal scheme is in allways reflected in oursystem wih devolution of powers.

3 MAJOR ISSUES IN FEDERAL STRUCTURE OF INDIAIt must be understood taht in a democractic system with federal structure, the conflictsbetween Governments are likely to arise.3 major situational problems are likely to arise when power is shared between two setsof Government.Firstly, the Constitutional law is structured to address the inter governmental issues andtherefore, the imortant aspect to be seen is how it is addressed?Secondly, there is lot of inequality among and between the regions. How the system hastaken measures to address the issue of backwardness in regions by bringing in equityprinciples?Thridly, The federal structure deal with local and central governments. In such context,how are the village issues addresed and how are tehy protectced?How is the relatiobetween State and Village panchayat balanced?

States are basically non sovereign entitles with curtailed powers

Eg:-1. Article 3 - State's power to reduce area in a State, alter its boundaries andchange its name.

WB v. UoI (1963) - CoI has adopted a federal strcture witth a strong biastowards the Centre.While the States remains autonomous in normal cisumstance, the Centreremains strong to prevent fissiparious tendencies of States.Decision of SC in case of Centre State disputes are fairly and largely in favour of Centre.Despite this, Federalism has been given the certificate of basic struture of Constitutionby the Court in SR Bommai v. UoI (1994).The strength of federelaism lies in the governance going to the grassroot level. To thateffect autonoity has been given to the States.With growing decentralisation of powers and focus oat grass root level, the federalstructure is likely to be strengthened with States becoming powerful entity with aStrong Union. Only then the statement under Article 1 of the Constituon would gets itstrue meaning.What are the issue of friction between the Centre and State?Over the last six decades, the issue have been more or less the same.1. Emergency Provisions2. Role of Governor3. Deployment of Armed Forces in States for public order.4. Inter State water disputes5. Economic Planning6. Social Planning.7. Issue of prolonged communal conflicts8. Effective Decentralisaton of Powers9. All India ServicesMajor political changes in India over the last 3 decadesLPGPanchayat elections and GovernanceIncrease in Cross border and terrorismTension because if communal forces.Approach to the questions on protecting sectarian and regional interests togetherwith serving the national purpose in governance is based on two fundamentals:1. The Fundamentals of the Constitution is strong

2. The Politics in India bring practical constraintsOnly then a practica solution would be posible.To reduce the conflicts between the State and Centre, what needs to be developedis the Cooperative federalism. This must be institutionalised and streamlined forselect causes which create political controversies and defied solution throughnormal administrative processes.

So COOPERATIVE FEDERALISM IS THE CRUX OF THE DEBATE WHICH S SET TOETTLE DOWN THE DIFFERENT IN THE GOVTS AT TWO LEVELS.

LEGISLATIVE RELATIONS BETWEEN THE CENTRE AND STATESThe Context for Indian FederalismThe historical reasons and the need to accomodate the diversity and pluraity of thenation into one system entity. A strong Centre was alwas an imerative of the CAD, tokeep the country together and to coordinate the policies and action between Union andStets in matters relating to national concern.Thus the model developed was to ensure healthy inter governemmtal dependance andcooperation with shared responsibilities.This is reflected at best form in the Legislative Relations between the Union and theState.GoI Act 1935 based its model on the Cnadian system which had 3 lists of LegislativeRelations:1. Union List2. State List3. Concurrent List.Residuary power - GGScheme of Distribution of Powers in the ConstitutionArtcile 245 and 246 - Basic Principlle is Supremacy of Union over States.Powers are given Under Seventh Schedule - in 3 ListsThe highlight is the Concurrent List.This List contains subject in which Union and States can legislate reflect the key areas inwhich nation building, social welfare and good governance have to take place throughjoint efforts of the Union and States.Such matters cannot be placed under Exclusive jurisdicton of Centre or State.

Eg: DPSP provisions is the responsibility of all levels of the Givernemntbecause they are meant for progressive implementation.

{DPSP AND CONCURRENT LIST CAN BE RELATED- for study purposes- have sameobjects!}

Welfare matters related in DPSPrequires broader approach and cannot beconfined to the limits of Governemnt.The Concurrent List hs been the bone of contenion for many stTes,.That consensus reached can be stated that the Centre, whenever, it makes law onConcurrent subjects needs to do that in a consultative method on a continuing basis.The Centre needs to cosult priorly before making a legislation on a subject inConcurremt list.This may be formalised through the Inter State Council, with an independent Committeof State Ministers to thrash out contentious issue so that there is consensus or favurisimamong the States, before the Bill is tabled before the Parliament.Through Constitutional Amendment, the Centre can deplet the Powers of State underList II and enlist the same into List III. In case of such exercise, the Pariament shouldexercise extreem restriant of power in asserting its supremacy. This however requiresconent of half os the States as per Article 368 (2).GREATER FLEXINILITY TO STATE IN MATTERS UNDER STATE LIST ANDTRANSFERRED SUBJCTTS UNDER CONSURRENT IS THE KEY FOR BETTER C-SRELATONS.

So any propsal to make changes to such Lists should involve adequateconsultation with the States. Thiscan be made possible using Inter State Councilwith an independenct Commite of State Ministers in it.

RS and the No of Representatives from StatesThe States have demanded Panchayat List and Panchayat members entry into RS- Notconducsive in the currents sceario, i the context of institutnaling the PanchayathinIndia..Panchayat governance is yet to be stabilised through out the country to be able to talelegislative functions in matters of local interest.Demand or equal representation of all States envisaged. Based on US model.Because - RS do not represent the federal model eactly.RS has to be an instrument for effective expression at the Parlimanetary level ofview of the states, large and small.What needs to be done is that the role of RS must be strenrthened for effectiverepresentation of view points of State. Hence, procedural changes and notcompositional changes is eesential here.

State Bills Reserved for President's Consideration

Article 200 envisages four courses open to Governor for assent of Bill, one ofwhich invlves sending to president.

Governor is supposed to act as soons as possible - His act is held as Non justifibaleact.Power of Pres is either to ASSENT or WITHOLD.He need not act asap. Here Prez may kill the Bill by not taking any decision over it.Ca lead to Centre State FrictionArt. 201 gives time limit of 6 momths for legilature to take a decision after Pres returnsa Bill , to pass it with or without amendment.But no time limit for Pres = chance for abuse of discretionary power.Complai ts raised on unecesary delay.Allwong the democratic will of the State Legislature to be thwarted by the Executivefiat is questioable in the context of basic featires of the Constitution.Pres must exercise his power to consent or withhold it within reasoable time and thesame must be communiccated.As a matter of convention, if Pres is unable to take a decision over it, he may also referthe same to the Supreme Court under Art 143 for advise. This will prevent from natureof bias and also will help keep the dignity of the House.Treaty Making power and Legislative RelationsImpact of Union executing international treatiesA new dimension - Vishaka v. State of Rajasthan - 1997 SCHeld; - Citizens can ask relief from State if State as ratified Internationaltreaties and it is not in compliance with Constitution or Indian law.State complaint : - State power to legislate is eing eroded by Union by entering intotreaties.Suggestion :- Ought to make effective consultation with the States.With increasing globalisation, there is likelihood of conflict between State and Centreissues.Need to follow practise adopted in other federal nations.Article 73 is referred. This r/w 246 (1) gives the Union Executive all the powers tonegotiate, enter into, ratify treaties.Art 253 gives Power to Union stating that Notwithstanding anything in the Constitution,Parliament has power to enact legislations to give effect to international traties.

Tretay making power stems from extrenal sovereinity. Preamble states India issovereign.But since India follows FEDEREAL SYSSTEM, Court can impose restrictions.For eg: treaty cannot effect basic structure doctrine.MaganBhai Ishwar Bhai patel v. UoICan UoI enter into WTO treaties without consultation with States - P.B. Samant v. Unionof India (94 Bom)He;ld that power under Art 73 was expansive enough.Whether the Government should enter into a treaty is a Policy decision and the COurtcannot intervene in such circumstances.UoI v. Azadi Bachao Andolan- No provision stating legislation is a condition for entryinto tretay.Parliament is vested with power to make laws to give effect to treaties, but no law hasbeen made so far. So Parliamentary approval is not a norm. Moreover, the States canalways consult with the Cntre through the Inter State Council on all issues including thetreaties.

INTERSTATE COUNCILISC was established in 1992.It had a broad charter of duty:"...investigating and discussing subjects in which some or all of the States or the Unionand one or more of the States, have a common interest ...making recommendations uponany subject and, in particular, recommendations for the better coordination of policyand action with respect to the subject."

There seems to be no other body for consultation wrt treaty making.Article 51 (c) relevant - It provides for application of international law forinterpretation and better enforcement of domestic law.In absence of domestic law in a context, Courts are free to apply international law.If there is a conflict between Muc and Int law, which will stand?

Municipal law wil stand the test of time.The problem with International Treaties lies in the fact that States are not adequateyconsulted in Treaty Making?The Parliamentay approval for treaty making had come often in debates before theHouse.Relevant provions are : - Art. 73 and 253, Entries 6,13, and 14 in the Union List

Art. 73 = Executive Power of the Union shall extend to the matters wrt which theParliament has powers to make laws;and to the exercise of such rights, authority and jurisdiction as are exercisable by theGoI by virtue of any treaty or agreement.Why Parliament Approavl is good and Bad for International treaties?Good - it brings in effective discussionsBad- In the larger common interest, Parliament may not be right forum to discussthe traties. Not practicable.Eve otherwise, Parliament can always question the same because executive isanswerable to Pariament.

The Executive of Union cannot act without the authority of law and it has nopower independent of law made by parliament.The poer of ordinance given during absence of Parliament substantiates this idea.Moreover tis is democracy and in demcracy, there shall be rule of law. UoI does not getunbrdled power.This is further srenghetned by Article 73 which says that Executive power extends tothose areas where Parliament ha spower to make law; and to the exerise of authprotyby way of treaty agreements.Union has power wider than USC when it comes to foreign treaties because in US treatymaking needs ratification by Congress.The Commission recommends the Union to make a law under Entry 14 of List 1 dealingwith the Treaty Making Power of the Union.While making such a law, the following must be taken into consideration:1. There can be no uniform way for execrise of power because of the fact that treaties,conventions or agreements may relate to matters which may or may not require Stateintervention. Moreover, treaty making is time consuming, with an element ofnegotiating power and hence the same cannot be tabled every time before theParliament. But whatever is being entered into cannot be by compromising individualrights.2. In case of defense, and foreign relations, wehre State or indiviudla rights are notdirecty invloved State reference may not be necessary.3. Where cases involve individual rights, and thoe which affect rights and oblgationsof citizens, gretaer invlovement of Sttes are encouraged.

4. If treaties place financial obligation on the States, then in such cases the State mustbe given clear details of the price involved and measure s to augment the same.5. Moreover the Finance Commission shoudl deltaail and invlve in its terms ofrefernce the details of it.CONCLUSIONS AND RECOMMENDATIONS

1. Consultation with States while Legislating on matters in the Concurrent ListInstitutionalise ISC with independent Committee of Minsiters to discuss on the Billso that support can be garnered in discussion of Bill in parliamnet at a later stage.2. transfer of Entries in Lists, from List II to List III/Union should be extremely restrained in asserting parliamentary supremacy inmatters assigned to the States.Greater flexibility to States in such cases is the key.Union should occupy only that much of subjects in the concurrent list which isabsolutely necesssary to acheive uniformity of policy in national interest.3. Management of Matters in Concurrent List

Needs to promote consulatative practise on continuing basis.Auditing Role for ISC to be given.

4. State Bills reserved for the PresidentPresident should exercise the consent or witholding consent withing reasonable timeand the same needs to be communicated to the Staates. This time may be 6 months.5. Treaty Making powerUnion should make a law under Entry 14 of List 1 to streamline proceudre involved.1. Defense matters issues may be kepy outside the purview of States.2. those affecting individual rights may be effectively brought to the Statesattebtion and negotiated with greater involvement of States and repr in Prliament.3. Where the treaties place financial obligation on states, the Cntre Shouldunderwrite the additional liability of concerned States according to an agreed formula.3. Finance Commission may adeqautelya dd up the same in Reports.ROLE OF GOVERNORS AND CENTRE STATE RELATIONS{THE GOVERNOR HAS NO FUNCTIONS, BUT DUTIES TO PERFORM.}Primary duties:1. To Retain Ministry in office. Goes under the Doctrine of Pleasure.

2. To advice, warn and suggest to he Ministry an alternative and ask for areconsideration.The importance of governor has increased over time with coalition governemnts andmulti party system.Initially for two decades, it was Congress which ruled the States and Centre. Later,power balance moved and other parties came i. In such cases, political motives wereused in the form of Governor.Thus, his role and functions needs to be ascertained.Governor is a nominated person on whom discretionary powers, therfore, are notlaiddown.One explicit provision relates to Assam Tribbal areas.The Governor as agent of Centre could act independently of his Council of Ministres.,except in transitional period when he can at independently of his CoM.Prez/ Governor cannot be sued because they do not exercise power individuallly.Generally lack of bona fide vitiates executive action, bt Governor is not responsible.Governor's bonafide cant be quetioned in cases where he exxercises discretion ieappointment of CM and dismissal of CM.Role of Governor under the ConstitutionArt. 153- A Governor for each State.A Governor can act as Governor for one or more States.Art. 154-Executive Power of State vest with GovernorArt. 155 - Appointed by Prez by warrant under his hand and seal.Art. 156 - Governor's Office is at pleasure of Prez. Term is for 5 years.Art. 158 - Qualifications - 35 and Citizen, not to be member of any House- MP/MLA.Art. 159 - OathArt. 161 - Pardoning powerArt. 164 - CM and CoM appointed by Governor. Period - during Pleasure of Governor.Art. 163 (1) - Execises all his Executive and Legislative functions with the aid andadvice of the CoM.Art. 167 - Duty on CM to communicate to Governor :-all decisions taken by CoM.proposal of legislationssuch other info relating to administration of the affairs of the State.

Governor can require to submit for consideration 'OF CoM' on any matterdecision has been taken by a Minsiter, but not considered by CoM.Nature and Scope of Duties of CM vis-a-vis GovernorGovernor's role is multi faceted.

a. Governor has a right to be consulted, to warn and encourage and his role is as aguide to the Council of Ministers.b. Governor also has a link to the Centre. He thus acts as a sentinel of the Constitution.Therefore to go ahead with his multi faceted role, he must be given necessaryinformation relating to administrative affairs of the State and legislative proposals.Governor's powers are not dictatorial but persuasive, in relation to admin affairs. Hemay call for details or even ask for reconsideration of decision taken by a Minister butheld not in consultation with the CoM..Governor vis-avis President{Privileges are the same, Powers are Not}.Both cannot be sued for executive actions.When Art 154, 163 and 361 are read together it would show that the immutabilityagainst answerability to any Court reagrding functions execrised by Governor is QuaGovernor and those functions in which he acts on advice of CoM or in his discretion.Governor's discretionary powers.Art 163 (1) requires Governor to act on the aid and advice of the CoM. An exception tothis law is on matters in the Constitution whereby he is required to use his discretion.The Governor can exercise under discretion only if there is a compelling need todo so, as laid under the Constitution.Can discretionary power be exercised out side Constitution?

This power is to be execrised 'by or under the Constition'.This means his powers must arise from Constitution or by necessaryimplication. Therefore the discretionary power is not unlimited, but limited by scope ofConstitution.Art. 163 (1) and (2) speaks of such situation of exercise of discretion.

Power of Governor under the discretionary realm needs to be construed strictlyas in the Parliamentary democracy, role of nominated members must be lmited.

So, generally Governor gets no discretionary power. In compelling situations, asper Constituion under 163 (1) and (2) he is required to act using his discretionarypower. While using this power, he shall act with reason, in good faith andtempered by caution and not arbitrarily.

Role of Governor in Management of Centre - State Relations

Prez APJ :- Office of the Governor has been bestowed with the independence to rise aboveday to day politics and override compulsions either emanating from the Centre or State.PM Manmohan :- GOvernors are expected to bring national perspectives to state levelactions and activities as they are representatives of Centre.One Major Role: - Making report where he finds that the Govt of the State cannot becarried in accordance with the provisions of the Constitution.Governor is not amenable to Union nor accountable to thm.The safeguards regarding office of the Governor cannot be placed into set of riules andprocedures and this is because of his Dual role in Sate and Centre and also because ofthe precise role of his power.APPOINTMENT AND REMOVAL OF GOVERNORSProcess of Electio was not favured for the apoitment of Governor because in dischargeof his functions, he is required to act in accorance with the ministreaila dvice.Governor's appointment if through Prez, for a term of 5 years but holding officeduring Pleasure of president.~ Sarkaria Commission recommended certain criteria for appointmet of GovernorshipEminent person in some walk of lifeFrom outside the StateDetached figure not too intimately connected with local politics of the StateNot taken too great part in politics generally and particularly in the recent past.~ These recommendations were reiterated in Rameshwar prasad Case - 2006Since these recommendations re subject to interpreatation, the position has becomepoliticised one.~ Recoomends that the the Pleasure of President needs to be removed with someappropriate Clause which gives an opportunity to defend his position and the decision istaken in a fair and dignified manner befitting the Constitutional office. His removalneeds to be exercised only if there are compelling reasons to do so.~ Commission recommends strict following of these rules.~ Calls for fixed tenure of Governor, not subject to the sweet will of The Unin.Pleasure Doctrjine needs to be taken off by Strict procedure for removal and reprimand.~ NCRWC recommended that Appointment Committee needs to be in place.~ Rameshwar prasad Case - There is eed to formulate a National Policy with commonminimum parameters forappointment, applicable an acceptable to all political parties.

If these are accepted, the unfortunate situations of allegations in appointment andremoval could have been avoided.THERE IS NO IMPEACHMENT OR REMOVAL PROCEUDRRE FOR GOVERNOR.Tenure must not be kept at pleasure, but needs to have a set procudeure whichcan beexercised only in extree cases. Governors belong to her States, and therefore, he needstime to adjust with local situations. Keeping him at Pleasure, can lead to creatinginsecurity in the mond of the Governor and impair his capacity to withstand pressures,resist extraneous influences and act impartially in the discarge of his discretionaryfunctions.The President's discreion here in removal is not justiciable and therfore gives noreasons.Power of Governor in the Context of harmonious Centre State relations

Governor's Powers1. on aid and advice of CoM - General principle2. Personal discretion. - Exceptional principle.The Governor is by and underthe Constitution required to act in his discretion inseveral matters. Articles where the expression "acts in hisdiscretion" is used in relation to the powers and functionsof the Governor are those which speak of special responsibilities of the Governor"In making a report under Article 356 the Governor will be justified in exercising hisdiscretion even against the aid and advice of his Council of Ministers. The reason is thatthe failure of the Constitutional machinery may be because of the conduct of the Councilof Ministers. This discretionary power is given to the Governor to enable him to reportto the President who, however, must act on the advice of his Council of Ministers in allmatters. In this context Article 163(2) is explicable that the decision of the Governor inhis discretion shall be final and the validity shall not be called in question. The actiontaken by the President on such a report is a different matter. The President acts on theadvice of his Council of Ministers. In all other matters where the Governor acts in hisdiscretion he will act in harmony with his Council of Ministers. The Constitution doesnot aim at providing a parallel administration within the State by allowing the Governorto go against the advice of the Council of Ministers.Article 200 indicates another instance where the Governor may act irrespective of anyadvice from the Council of Ministers In such matters where the Governor is to exercisehis discretion has must discharge his duties to the best of his judgment. The Governor isrequired to pursue such courses which are not detrimental to the State. For theforegoing reasons we hold that the President or the Governor acts on the aid and adviceof the Council of Ministers with the Prime Minister at the head in the case of the Union

and the Chief Minister at the head in the case of State in all matters which vests in theexecutive whether those functions are executive or legislative in character.Shamsher Singh Case - Even in case of words such as "as he thinks fit" or "inexecrise of his discretion"- Goevrnor must aid on the aid and advice of CoM.His discretionary power is i anyway limited and thus cannot be arbirttraty,but needs tobe dictated by reason.

The folowing are his discretionnary powers:1. To give assent or withhold or refer a Bill for Presidential assent under Article 200;2. The appointment of the Chief Minister under Article 164;3. Dismissal of a Government which has lost confidence but refuses to quit, since theChief Minister holds office during the pleasure of the Governor;4. Dissolution of the House under Article 174;5. Governor's report under Article 356;6. Governor's responsibility for certain regions under Article 371-A, 371-C, 371-E, 371-H etc.1. To give assent or withhold or refer a Bill for Presidential assent under Article200; (can act irrespective of CoM)In two conditions:a. If it derogates the High Courtb. In other casesTime frame is asap - but no time limit placed. Moreover, if it is sent for Prezconsideration, no time limit prescribed for Prez toconsider the same.

2. Appointment of CMProblem arises when there seems no majority

Sarkaraia recommendationsParty orcombination of party with widest majority needs to be called upon toform Govt.Governor task is to see that Govt is formed and not to form Govt which will pursuepolicies whiich he approves.

Governor's subjective judgment plays a major role here. Governor should ensure thatCM so formed by such allince or coalition must prove his majority on the floor of hishouse in 30 days.Governor's discretion in appointing the CM is not a complete discretion.CErtain recommendations may be considered to follow as pat of COnventions

~1. party or group of parties which commands widest support in the LA should becalled upon to form the Government.~2. If there is a pre poll alliance or coalition, it should be treated as one political partyand if such coalition obtains majority, the leader of such coaltion shall be called byGovernor to form Government~3. In case no party or pre poll coalition has clear majority, the Governor should selsectCM based on the criteria.1. Alliance of parties formed before Election2. Largest single party with support of others., say independents.3. Post electoral coalition, with all forming the Govt4. Post elctroal alliance, with some alliance forming Government and otherssupporting from outside.3. Dismissal of the CMThe power t dismiss solely rests with te Governor. He is i nocase fetterd by rstrictionsAssembly can only express want of confidence in the Ministry; and can go no further..The power to dismiss rests entirely with the Governor.Losing confidence can, howver, be taken as one criteria to dismiss the Givernment.

If Govt looses its majority, it should be given a chnce to prove majority in the House.The HGovernor should not dismiss the House unless Legislative Asssemby hasexpressed its want of confidece. the time limit to prove that should be fixed by theGovernor.4. Summon, prorogue and Dissolution of House.When the House enjoys majority, te Governor is bound by CoM. If such advice wouldlead to infrongement of Constitution, or where CoM ceased to enjoy confidence, thendiscretionatry power comes in place.If CM advised proragation when the No Confidence motion is oending, then he shall notact right away.He the demand for NCM is legitimate, prorogation vcan be postponed and NCM be heldfirst.Dissloution is based on decision of CM who has majority.If CM doesnt have majority and advises, then the Governor can call for other options toform Govt and then if not possible then the same can be dissolved.ReccommendationGoveror should advise CM to summon House for confidence motion. If the CM does not,then the Governor can can summon himse;f.

5,. Judicail power

1. disqualification of MLA- decision of governor is final.2. Appointment of men=ber so of sub ord judicary and frame rules for recruitment, incolutation with HC.6. Power of Pardon

This power is concuretw ith presidential power to ggrant pardon under Article72. Acts under aid and advice of CoM.

This is subject to judicail review.- expected to follow fair proceudre,7. Power to make rulesThis includes the power to make rules regarding:-a. the authentication of orders and other instruments;b. conditions of service of the members of the State Public Service Commissionas well asthe Civil Servants;c. convenient transaction of Government business;d. procedure in respect of communications between the Houses of the State Legislature;e. recruitment of officers to the High Court and recruitment of secretarial staff of theLegislature.8. Promulgate OrdinancesRepeated promulgation of same ordinance can be held as unconstitutional as timelimit has been prescribed by law as 7 and hald months. (Krishna Kant v, State ofBihar)

If Ordinance is not replaced by an Act, it willnot make the law void ab inito. Ordiannceshall only become inopertaive, so completed transactions do nt get revivedGovernor and North East StatesAssam, Meghalaya, Tripura and Mizoram governors given lnspecial poewrs.Powers here are entrusted to Regional Council and Distruct Councils.Wide powers.Goernor can frame rules wrt managemet of District Und and regional Fund.Final decision = governor = final.Not bound by advice of CoM

Reports from Governors to prezEvery fortnight report needs to be sent to the Prez by the Governor on importantdevelopments taken place in adminsitration of the State.This report is sent to CM, for him to correct on any wrong policies pursued.JUDICIAL REVIEW OF GOVERNORS ORDERS1. PARDON POWER2. UNDER ARTICLE 356Governor and Article 356Proclamation under Article 356 is not immune from judicial review.Art 74 (2) is not a bar against the scrutiny of the material on the basis of which Prezissues Proclamation of Emergency.It may bar jud review of advice given, but does not bar judicial review of the materialssought based on which advice was tendered.EMERGENCY AND CENTRE - STATE RELATIONS

Obligation of Centre to protect States from external aggression and internaldisturbanceRefer to SR Bommai Case for recommendations

ADMINISTRATIVE RELATIONS AND CENTRE - STATE RELATIONSArt. 256-263

Normally the executive powers are co extensive wit the legislative powers, but then,Union will have authority and jurisdiction to exercise the same in relation to any treatyor agreement.With respect to matters in Concurrent List, State may have executive powers only solong as Parliament by law has not expressly provided otherwie.The administrative relations between Centre and the State is governed by a set ofprinciples agreed upon in the Constituent Assembly.1. Duty of the Govt of the unit is to exercise its executive powers in such a way as tosecure full implementation of federal laws in that unit.Here Union may give directions to States for full implementation of federal laws.

2. Prevent any clash of authority between Centre and State by ensuring that the Unitswould so exercise their executive auth even in the sphere reserved for them as not tocome in conflict with the exercise of Executive auth at the Centre.3. If duties wer cast on the State, in relation to Central subject, the Centre shall pay theState as agreed or fixed.4. Prez is authorised to establish Inter State Council with power to inquire, investoigateand recommend suggestions for better coordination.All of these 4 points derive their origin from GoI Act 1935.EXECUTIVE POWER - DEFINITION, LIMITATIONS AND SCOPE (Art. 73 and 162)

Primary component of Executive Power is the AUthority to Execute laws made by theLegislature.However, the Power to act is not always entirely dependant on the LEGISLATIVESANCTION.Centre can go by the Treaty making Power as well.Executive Power defies a precise definition.

Ram Jawaya v. State of Punjab.It is that part of functions of Govt that remains after Legislative and Judicialfunctions are aken away.Some examples where it defies the extent prescribed by Legislative powers are:Art 282 - Union or State may make grant out of it revenue for public

purpose, irrespective of the fact that public purpose relates to items within itslegislative competence.CSS comes out of such provisions.This tends to dilute the Seventh Schedule List.Other Articles by which CEntre interferes with State are:Art. 256, 257.By reason of this there has been several Centre- State issues which affects theGovernance strcture even at grass root levels.How Centre exercises its powers in States via matters in Concurrent List?1. It may leave admin entirely with States2. It may reserve total responsibility of enforcement with itself3. It may assumes exe power in some respects of legislation and settling other issuesof administration via consultation and negotiation.This has affected the State in terms of accountability and autonomy.

Power of Union to give Direction to States - Art 256, 257Article 256 and 257 are highly controversial to the extent that State haveconsidered it as violation of federalism principles.ART. 256In practise, there has been no such instances, where State wutonomy was prejudiced byway of exercise of thispower. Moreover Articl 256 pre requisites the need for a LAW OFPARLIAMENT TO EXERCISE THE POWERS.HOWEVER IT MUST BE NOTED THAT A POWER TO ENACT WOULD BE COMPLETELYMEANINGLESS FOR THE UNION WITHOUT THE POWER TO ENFORCE THEM IN THESTATE.Hence, the Art. 257 is not violative of federal principples , in that it infringes autonomyof States. The execrice of power is based on lawful executive powers.Even if CEntre transgresses inti the power of States, there is always Judicial Review as ahope.Thus they do not destroy federalist prinicples.These provisions also imply that The States shall not interfere with the Executiveowers exclusively earmarked for the Union.Hence, these Article may be construed only as SAFETY VALVE. ONE WHICH MAY NEVERCOME ONTO PLAY. YET NEEDS TO BE RETAAINED.Article 256 reads as follows:"The executive power of every State shall be so exercised as to ensure compliance with thelaws made by Parliament and any existing laws which apply in that State, and theexecutive power of the Union shall extend to the giving of such directions to a State asmay appear to the Government of India to be necessary for that purpose."

Article 257(1) states as follows:"The executive power of every State shall be so exercised as not to impede or prejudice theexercise of the executive power of the Union, and the executive power of the Union shallextend to the giving of such directions to a State as may appear to the Governmentof India to be necessary for that purpose."

Art. 256 come into play when there is a valid legislation when there exists alegislationArt 257 come into play incontext of an executive action o part of CEntralGovernemnt.Even this exe action can be in domain over which Centre is empowered to act.

EXECUTIVE ACTION HERE IS NOT THE EXECUTIVE ACTION IN THE SEPARATIONOF POEWRS CONTEXT.

Therefore there is no much overlapping of the powers between Centre and State.

INTER STATE COOPERATION - MODALITIESInstitutional MechanismsISC, NIC, NDC, PC, FC, RBI etConcerns

Inter State Council - Estb in 188, First met in 1998 -Poor body. Most often Centre do not take views of State.Failed machineryWorks under ConstitutionDecisions are not binding upon the CentreNational development CouncilFor better coordination on all financial and developmental issues.Frequent meetings to be held with the States.Planning CommissionMembers are all nominated by UnionLack of representation of State.Neither bodies have given effectual represenattion to States interms of composition andTerms of Reference. not the decision provided fair dealing with the States.They have functioned as Union bodies with a functional bias towards the CEntre.Most of them are created thru Union Executive Order. - even NITI Ayog and henceperceive themselves as Union emplotees.The problem with ISC lies in the non binding nature of the decision to Union. The ISChas incorporated Sarkaraia Commisision recommendation in the decisions, but Centrehas not implemented them in its letter and spirits.W.r.t. PC had all its members from Union, with no rep from Sattes. There needs to beadequate rep from States - BOTH AS MEMBERS AND EXPERTS.

THE PC MUST NOT ACT AS REP OF UNION, BUT MUST ACT IN THE INTEREST OFTHE STATES.

Inter State Council and Binding Decisons- Is it POssible?Making it bnding do not fit our Constitutional Scheme.Powers to the bodies are theirs to exercise as they deem fit.Better consultative mechansims and negotiations can go a good way in dealing withissues. However, the ultimate decision has to remain that of government in question-Whether State or Union.To say, Federalism is a living faith of diversities and it needs to be supported byinstitutional mechanism to facilitate coopertaion and coordination among theUnits, and between the Units and Union. Cooperative federalism is easilyendorsed but difficilu to practise without proper consulative echanism.

CONSTITUTION HAS PROVIDED FOR LIMITD BODIES AND THOSE ARE A FAILEDMECHANISM. ONLY WAY IS TO STRENTHEN AND MAINSTREAM THE ISC ANDMAKE IT A VIBRANT FORUM.The Council must be used as a mechanism for consensus building and voluntarysettlement of disputes if the body is staffed by technical and management experts andgiven the autonomy reqired for functiionig as a Constitutional body independenyt ofUnion and States.Also Give Secteariart Staff endowed with central and State Staff. on regulatory bass.GIVE ADJUDICATORY POWER TO ISCaLSO the Council make envisage to inquire and advise on disputes between Statestowrads settlement of contested claims.Council can be a very effective body if its issues are settled.It can be used for consensus building and voluntary settlement of disputes if the body issatffed by tech and management experts and given the autonomy in functioiing as aConstitutional body independent of CEntre and States.It must be bestowed with resources adn authority to acrry out its functions.

Would conferring Constitutional Status affect the Soverignity of the Union?No- The purpose is to maeet regularly.Endow with sufficeint resource and authority.Comand a certian space in the domain of civil societ and deliberations.INTER STATE RIVERS AND DISPUTE MECHANISMDealt LATERALL INDIA SERVICES AND CENTRE STATE RELATIONSStates generally have some concenrs, but are not per se oppsed to the having of ALlIndia Services, with a broad national outlook. This is ecase they have a broaderunderstanding with respect to many issues of country wide concern adn releance.

Commission however is of the opinion that the rd tier of govrnance maybe in duire needof personnel from All India Services.Commission suggest the need for All India Judicail ServicesReasons:1. Unified Judicairy i India - Therefore constitution of AIJS is quite a naturalphenomenon.2. Judical responsibilities of Judge in one Sate will be the same in another State. - therewould b cases and law whcih are particular to one State, but nevertheless the cses in civland criminal litigation more or less remian the same.3. Can attract the best talent from the nation to the Judicary at the young age.can ensure access to justice by bringing the best personnels from around thenation.ZONAL COUNCILS AND EMPOWERED COMMITTEE OF MINISTERS

While legislative powers are marked and fiscal situation is reviewd by the FC, The fearwith satstes is respect to the adminsitrative relations and hence calls for a forum forcoordiation.FIVE ZONAL COUNCILS CREATED UNDER SRAct 1956.To curb the rising regional and sectarian felings.Promote cooperation in regionMay create Empoewred Group of Ministres such as of Finance Ministers fromSattes andgive recommendation to ISC/ PC/NIC/NDCImplementation of Direcive Principles can bea standing principle for the agenda and the recommendation can be sent to Union.Thiscan incidentally match with NDG. Other federatons like US candaa have such forums . Itmay also work under ISC.SMALLER STATES AND BALANCE OF POWER

States in India are represented in the Council of States.Allocation of seats in RS shall be elected by elected members of the LegislativeAssembly of the State in accordance with the system of prportion representationby means of single transferable vote.

9states = 1 seat each.

10 states = tota 160 seats

Smaller states have problem with unequal representation given to them becauseof their small size.Effect

Being smaller and having 1 seat, their representation do not actually make adifference in a House which demands either simple majority or even 2/3rd of majority.State gets its voice basically from 2 provisions1. State List granting autonomy in its realm.2. Representation in RSLower House represents the population andUpper House represents the States.Why India did not adopt equal repr model of USAStates were not independent entities having ore existing rights or powers anterior toor apart from the Constitution.Constituent Units in India differed vastly in area and population.Art. 249 and 312 prove that RS do not exclusively erpresent the fed principle.Its primary role is more or less that of Lok Sabha.However, under 249 and 312, it exercises a fed character role.......................................................................................................to bedealt.................................................................................DECENTRALIZED GOVERNANCE AND INTER GOVERNMENTAL RELATIONSThe 73rd and 74th Constitutional Amendments gave Constitutional status toPanchayatas and Municpalities as Rural and Urban bodies of governance. This isconsidered as a major breakthrough in democratic governance........................................................................................................................................................................................

CENTRE STATE FINANCIAL RELATIONS AND PLANNING

Constitutional Provisions

Taxing poer has been clearly demarkated in the Cnstitution- Art 246 - 3 lists

NO TAXES ARE LISTED IN THE CONCURRENT LISTUnion = 13 Taxes -- Income, Customs, Excise, Corporartion, Estate , Railway, sea,air terminal tax, stock and futures, newspaper - Inter State -- Most, withexceptions.

States = 19 Taxes -- land revenue, agri Income , building tax, minerals liquor,goods other than newspaper, road, vehicles, professions, luxury, entertainment,entry of goods in local area, advertsements other than radio, tv or newspaper.

Union Taxes in detail- Entry 82 - 92C1. Income Tax except Agri income.2. Customs inc export duties.3. Excise duty on goods manufactured or produced in India, inc excise on tobaccoInclusion:- Tobacco,Medicinal and toilet prep containing alcohol or opium, ND, hemp etc.Exception :- Alcohol for human consumptionOpium, hemp and ND;4. Corporation Tax5. Tax on Capital Value of assets of individual and companies; and Tax on capital ofcompanies.Exclusion: Agri land.6. Estate duty for propertyExclusion: Agri land7. Succession of Property - DutyExclusion:- Agri land8. Terminal Taxes on Goods or passengers- RAIL, SEA, AIR; Tax on Rail fare and freights.9. Stamp Duty in Stock exchange and Futures transactions10. Rates of Stamp duty wrt Cheques, Pro notes, Bills of lading, LoC, Insurance, Sharetransfer, debentures, receipts, proxies etc.11. Taxes on sale and purchase of Newspapers annd on advertisements in newspaper.12. Taxes on sale/ purchase of goods in course of Inter state trade or commerce.Exclusion :- Newspaper13. Service TaxState Tax - Detailed - Lists 46 - 631. Tax on Agri Income2. Duty on sucession to agri land.3. Escise duty in alcohol for human consumption, opium, hemp and NDs.4. tax on entry/sale of goods in local area5. Consumption or sale of electricity6. Tax on Sale or purchase of goodsExclusion: - Newspaper7. Tax on advtExclusion: Newspaper, radio, TV8. Tax on goods and passengers carried by road, or inland waterways.9. Vehicle Tax10. Animal/ Boats11. Tolls12. Profession, Trade, Calling, Employments

13. Capitation taxes14. Luxury tax, entertainment, amusement, betting, gambling.15. Rate of stamp dutyExclusion: Union List mattersExpenditure ResponsibilitiesResponsbilities fall under Union List and COncurrent List fro the Centreand under State List and Concurrent List for the StateThere exists a great asymmetry in the taxationa nd expenditure. Naturally, the burdenon State is more than that of Centre and income is comparitively less for States thanCentre. Hence a need for balance definitely is required, for which the FinanceCommission and other enabling provsisions has been enabled.FInance CommissionTo be set up in 2 years of ocmmencement of Constitution and thereafter every 5years or at earlier time as Prezz considers fit.Duties are important - regd FC1. DISTRIBUTION of net proceeds of tax (NPT) between C and S and ALLOCATIONbetween the States, the share of such proceeds.WHICH ALL TAXES ARE DISTRIBUTED?All tax and duties, except duties under Art 2688, 269 and surcharge under 271 aredistributed to States.268 and 269 is appropritaed by Statesand 271 is a surcharge for Union.2. The Principles govering GRANTS iN AID out of CFI.

Art 275 (1) - GiA of revenue of such States as Parliament may determine to be inneed of assistance and different sums may be fixed by States.Proviso (1) - Promotio of Welfare of ST in AssamArt 275 (2) - (2) - All other Orders except (1) on GiA are to be based only onrecommendation of FC.

3. MEASURES TO AUGMENT the CFS to supplement resources of Panchayats andmunicilaiteis of States. (By way of amedment - 73rd and 74th)Grants for public purpose can come from State or Centre irrepective of their power tomake laws. THIS DOESNT REQUIRE RECOMMENDATION OF FC.4. ANY OTHER MATTER REFERRED by PREZ. in the interest of sound finance.EVERY RECOMMENDATION OF F/C IS PLACED BEFORE the each HOUSE.

Public Borrowing

Art. 292, 293Borrowing powers of Union and States

Union - Borrowing upon security of CFI, within limits fixed by ParliamentState - Borrowing withing the territory of India, upon security of CFS.No loan can be raised by States, if Central loan is outstanding, except withpermission of Centre.FARC, SCSC, NCRWC RecommendationsMore power and role to StatesRealignment i role of P/C and F/C.Set up I/S/C for settling conflicts.SCSC Recommendations1. Resource SharingUnion Govt shoudl periodically consider exploring revision or imposition of dutiesunder 268Monetary limit on tax of professions should be revised.Royalty rate revision on minerals2. Expenditure reforms

3. F/C and P/CDivision of responsbilities of C and S may continueFC cell in PC should continously monitor the behavious of State financesFC to take into account the expenditure liability of States on account of revision ofDA.Art. 264 - 271265- tax to be levied under authority of law.266- Consolidated Funds and Public Accounts of Centre and States.CFI = All REVENUE RECEIVED + ALL LOANS RAISED BY ISSUE OF TREASURY BILLS,LOANS, WAYS AND MEANS ADVANCES + ALL MONEY RECEIVED in REPAYMENT OFLOAN

In Short CFI = Revenue + Loans + Repayment moneyCFS = ALL REVENUE RECEIVED BY STATE + ALL LOANS RAISE BYISSUE OF TR BILLS/LOANS/ WAYS AND MEANS ADVANCE + ALL MONEY FROM RPAYMENT OF LOANIn Short CFS = Revenue + Loans + repayment money

ALL OTHER PUBLIC MONEY RECEIVED = Public Account of India/ Public Accountof States.

APPROPRIATION OF MONEY FROM CFI/CFS can be made only in accordance withLAW, PURPOSE and MANNER under the Constitution.

267- Contingency FundA Fund in the nature of imprest. the same may be created by law of Parliament.Fund is at disposal of Prez.Later such expenditure to be authorised by Parliament by lawPurpose :- To meet unforeseen expenditure

Same with State- at disposal of Governor

DISTRIBUTION OF REVENUE BETWEEN UNION AND STATES268 - Exise duty on Medicinal and toilet prep.LEVY - UNIONCOLLECT - STATE (GoI for UT)APPROPRIATE - STATE268 A - Service TaxLEVY - UNIONCOLLECTION - UNION AND STATESAPPROPRIATE - UNION AND STATESshare and rules - as per law!269 - SALE AND PURCHASE OF GOODS AND CONSIGNMENT OF GOODS - IN THECOURSE OF IS T & C - (no newspaper)LEVY - UNIONCOLLECTION - UNIONASSIGNED TO STATES AFTER 1996270 - ALL OTHER TAXES OF UNIONLEVY - UNIONCOLLECTION - UNIONDISTRIBUTED LATERFC RECOMMENDATION

271 - SURCHARGETO CFI273 -Developments Since Sarkaria Commission - Esp Economic ReformsA. Economic Reforms- 1991Focus shift from Public sector to private sector.State became an enabler rather than a producer.Eg:- Enable infrastructure for private sectorsStates with enabling policy and bettr infra could atrract more investments.Other States with poor infra and resource base - left behind

Result -Inequality in rise among the States.Large scale migration from poor state to rich statesFaster pace of urban growth in an inadequate infra developedurban regions. Bigger problems welcomed.a. Tax SharingBefore 80th amendment - 2000Mandatory sharing of IT and Permissible sharing of excise duties.(Corporate taxes etc. held out)Result :- State had complaint on less share and sharing percentageAfter 80th Amendment - 2000Sharing of all net proceeds of Union taxes and duties except those udner268,69 and 271.Result : No complaint on share from Centre; but complaints on sharepercentage.b. Tax on Services - Indirect

Intd in 1994 - for 3 services, later expanded.

B. 73rd and 74th Amendments - 1993

Art. 280 amended mandating Central FC to make its recommendations regardigaugmenting CFS to supplement the resources of loacl bodies on basis ofreccomendation fo State FC.Result : Separate fiscal space for local bodies.

C. 2005 - TAX REFORMSVAT introduced in states, at commonly agreed rates.Result: End to cascading effect of sales taxEnd to war between States by putting competitive tax rates.

COOPERATIVE FEDERALISM - promoted by this manner and did not affecton the autonomy of States.D. 2015 - PROPOSED GSTTo be levied concurrently by Centre and States.It will subsume a number of Centre and State tax.Tax admin will be less cumbersome, investor friendly, transparent.Improve voluntary tax compliance, reduce revenue loss.In the larger interst of the nation and not to be seen from the perspective of loss ofautonomy of States.E. FISCAL RESPONSIBILITY LEGISLATIONTo manage public financesFiscal Resposibility and Budget Management Act was passed in 2003Except WB and Sikkim, all have passed it.Reason for the law - to curtail the rising fiscal deficit!in 1990s- combined FD was around 10 %.Combined revenue deficit - 6/9 %This implied that 64% of borrowing were used for financing revenueexpendiiture.Main Objects- eliminate RD by 2008-09- reduce FD to less than 3% of GDP by 2008-09.Couldnt achieve targets because of global slowdown, increase in subsidies, farmloan waiver, pay revision etc.F. DEBT CONSOLIDATION AND RELIEF FACILITY (DCRF)It comprised of:-1. consolidating State's outstanding debt to Centre and2. debt write offs linked to reduction of RD3. containmet of FD at 2004 level.To avail benefit of DCRF, the States were asked to enact the FRBMA.This has led to all states enacting and managing RD and FD. Except for Sikkim and WB,all other States have it enacted.Borrowing by StatesFC 12th - recommended - termination of lending to States and take the form ofCentral Plan Assistance. - 2005Before 2005 - Normal plan assiastance for GCS (70:30) and SCS (90:10)Result of 2005 reccm:- Burden of States and reduction in loan payment time fromCentre - 25 years to 10 years.

Plan ASsistance to StatesTWo Way

1. Reduction in budgetary support to Sates2. Significant change in the pattern of plan assistance.

Earlier - Gross Budgetar Supoort rato was - 58:42. Worked at 66:34.

GROWING INTER STATE INEQUALITIES

Post reform period saw this change and the same was expressed in the 10th FYP. theWestern and South States benefitted largely because of proximity to ports, infra nadbetter governance.Transfer from Centre to States take place through three channels1. P/C (plan grant)2. F/C - Statutory transfers (Tax share and non plan grant)3. Central Ministries. (plan and non plan grants)ISSUES in CENTRE - STATE FISCAL RELATIONS1. Vertical Imbalance in Resource Sharing2. regional Imbalance3. Growing Central Expenditure on Functions in State ListLarge population lives in less developed regionsResult :- migration to urban regions.States need to undertake investment in backward regions.Humand and physical infa needs to be developed; Central assistance mustincrease wrt backward regions.Maintenance of assets should be considered as part of Plan expenditure4. Regional ImbalancesBackward regions face backwardness to multiple factors. Therefore multi prongedstrategy needs to be taken.Such as :- public investment in infra, pro active policies, to attract privateinvestment, high public expenditure on social sectors, and area specific strategy for agriproduction, good governance.Poor acces sto banking facilites hinder financial inclusion.5. Compliance cost of Cenhtral LegislationsWL Act, FC Act, EP Act, BDC Act, Tribal Conservation Act etc.Cos of compliance ois to be orn out of State funds.Solution:

Take RTE Act- CEntre- Satte functional and fiscal responsilities have eendelineated clearly.Such cost sharing and functional responsbilibility must be clearly defined in every Actor central scheme.In Food security law, as well the same patter must follow.In mineral bearing Sattes, there is huge benfit for the nation as well. Fiscalresponsvilities in placing the system to work ust be dealt in by the Centre.FRBM ACtTargetting can be made effective by use of off budget liabilites.Gvt o India has been issuing bonds to oil marketing cos and fertilizer co thrugh offbudgetig, This do not add up into the FD.Srtengthening the FCCompliantsTransfers ar based on old parameters and not on future performance.Suitable strenthening needs to be done of the FC in Ministry of FInancePer ccapita transfers from 1-8 FC shows that there was no marked difference in thetransfers across teh States indicating not so equalising nature of these tansfers.since FC 9 the position changed. From FC 11 the transfer became more progressive.balancing between equity and eficiceny is a difficult task and needs to be done delicatelythe scenario is improving.In the viw of rising inequalities, the FC cannot alone ne blamed.Transfer thru FC is just one of the channels of resources and hence cannot address theequity concerns affectively.Further oer, addressing inequalitues needs a wider dimension espcially like planningand public investments-- these are outside the purview of the FC.The move y the FC to brudge gaps and ercoomend grants to special problems are somedevelopments.

PLANNING COMMISSION and its RoleEconomic reforms and Planning Commission-

8th FYP was the 1st Plan after the economic reforms. The role of it had becomeindicative in nature, as was clear from its Preface itself.This meant the Plan was indicative and State to be facilitattor for private investment.In 11 th Plan, share of public sector was 21% . depsite this, PC continued till 2014 end,when NITI Ayog replaced the old socialist era PC.Role of Planning in the Market Economy

A. INDICATIVE3 imp change in post reform era with a major bearing on the planned economic devt.1. Declinng share of public investment in total investment,2. Financial constraints emanating from FRBM Act3. Emergence of PPP as preferred mode of project financing.Planning can play an indicative role in the said above context.B. REDISTRIBUTIVE ROLEState Role needs to be of facilitator and provider of basic infra- physical, social, financial.However, eco reforms did not bring an end into the growing inequalitiies and hencedismantling PC was not encouraged.{Glaring example of inequality is that all the policies and scheme that push growthare targetted at those who are socially and financially well. Such targeted schemecan only help the middle class and the growing employed class.}

C. PRESCRIPTIVE ROLETo influenze the behaviour of private agents to serve the public goals through enablingpublic policies and ensuing smooth functioing of the common market.PROBLEM IN THE CHANGED SCENARIO1. P/C plays a mor role in coordinating various Ministries. This has led to a situationwhere Misitries needed to require approval of PC for moving ahead with a project.The P/C role needs to be of coordination whereby it has to ensure that sectoral plandrawn by different Ministries are in confirmity with the overall objective of thePlanning.This practise of seeking approval from Palnning may be dispensed with.2. Mismatch between Annual Plan and FYPAnnualPlan comes months after State Budget. Annual Plan is a difficult exercise becauseof targets set in FYP and resource constraints.

Most often targets are not acheievd depsite fund availability. This leads to a mismatchbetween the FYP and Annual Plan which leads to weakening of the Planning system as awhole.This problem can only be circumvented by multi year budgeting.MYB means Firm budget for 1st years and provisional one for 2nd and 3rd yera.FRBM envisages Medium term Fiscal Policy Statement - But this doesnt serve theprupose of multi year budgeting.3. ApPROACHH TO PLANNINGAfter eco reforms, State are in favour of more flexibility in the formulation andimlementation of State Plans.Regular approving of State Annual Plans may not be necessary in the new changedcontext. The FYP must be prepared in consultation with the State so as to be in tunewith the National Objectives, and then they must be let free.Therefater the State must be given the freedom to plan according to their needs andpriorities within the nationally accepted priorities.4. Plan outlay usually oversee the FRBM targets wheever the State seeks higher plansand the same is apporved by the P/C. When estimated resource do not materialise, nonplan maintenance expenditure takes the cut. The result is that life span of assets creaedfrom Plan funcding and underutiisation of assets.COMPOSIATION OF PLAN TRANSFERSBefore 1969 - Scheme Based Plan Assistance1969- Formula Based Plan ASsistance. - Gadgil FormulaThi was main channel of plan transfer.GF had 3 revisions- last one in 1991Latest : 70:30 and 90:10GST....................................................................................................................................................................................................................................

DECENTRALIZED PLANNING AND LOCAL SELF GOVERNANCE"If democracy is the cornerstone on which modern COnstitutions are built, thenenhancement of democracy must be inbuilt in the system to ensure its continued vitality."This can be enhanced through:-a. by maximizing citizen preferencesb. making it more responsive to people's aspirationsc. rendering it possible to use the creative genius of larger number of people;d. making it more incluisvee. making it more accountable.All this leads to better governance and development.This is ossible by further devolution of powers from 2 body to a third body.The histrical evolution of grass root democrac have come to a full circle with the 73rdand 74th amendment to the COnstitution.Earlier societies were organised aoround tribes, class, cmmunities etc. and they hadtheir own system of governance.They were supercede by Nation and Centre body of governance.Panchayathi raj is the closest to direct democarcy because of the least number of peoplethey can directly deal with.The relation with other tiers of Government and diviiison of powers and resposibilitiesare highly formalised and governd by COnstitutional provisions, statutes and adminprocedures.Eg:1,. Legislative Domain- Not granted so far- depends on States.2. Admin domain - coterminous with leg poewr witha dditinal provision onadminsiatrtaion.3. Financial domain - F/C and mandatory trasfers.

Historical Evolution of Local Governance - Post Independence

1952- Community Development programme

...................

5th and 6th Schedule and NERTRIBAL RIGHTSConstituent Assembly - set up Committee of Citizens, Minorities and Tribal RightsSub Committes - 2 set up!1-> on Assam (Frontier areas)Rights2 -> on Other regions- the excluded areas and partially excluded areas.These two formed the basis of the rights recognition of tribals under the Constitution.Assam Tribal Areas

Findings of the Committee1. The areas in the frontier were partially explored and unadministered and wasunder direct control of Governor General.All expenditure was borne by GoI.The State had no control over them and revenues were not voted to Legislature.Governor given wide discretionary powers and adminsitered directly.Partiallye xcluded areas - admin by States- subject to Governor powers.The Tribes differed widely in language, customs and practises1. The degree of development also varied greatly.The worst amongst were the Frontier tracts.Some better development was seen near capital areas.Literacy high where Christian mission were present.Agri was Jhum cultivation.Partially excluded areas was expected to do better in governance, but due to dual powerof Governor and States, both disclaimed responsibility and thus remained underdeveloped.2. Presence of inner democracyThe village Councils are created by general assent or election. These were nonstatiuory bodies.3. Distinct FeaturesDistinct social customs and tribal organisations of diff peole, as well asreligious beliefs.Some have Matriarchal system, some have hereditary chief, some haveelected system.

Universal belief that they would be exploited by the people living in Plains.States would not provide sufficient funds to the local council because ofpressure from Plains.Recoomendations of the Committee1. 'Partially and Fully Excluded' :- Govenance to be made autonomus, but leg, finand admin links to be set up with States.2. 'Tribal Areas - Frontier tracts' - to remain with centre with full responsibility.GoAssam to be agent.When admin improves, the area needs to be given to States for admi3. Gradual assimilation4. Special role to Governor to filter Provincial legislations to these areas ongrounds of suitability.5. Hill Districts to have power of legislation over occupation of land incmanagement of forests, Jhum, establishing village council, and other functions such asinheritance, marriage, personal laws etc.6. The District Council to be given power to manage schools, dispensaries, markets,forest roads etc.7. Council to hav power to set up Courts etc.8. Fiinancial powers to be given in par with people of plain in matter of taxation.Funds needs to flow from Sattes, into these aresa due to deficit in income.Fund sharing from revenue of State needs to be considered equoitably.Centre must contribute in development of these regions and hence should makegood the deficit.A special fund to be created for all sums accruing to District Counci;s.During emergecices, special power to be given to Governor, to restrict use ofauthority by Distrcit Councils. This is because local bodies exceed auth at times, espsince the area is in border.All India Servcies shoild be amde available without any conditionsGovernor shoudl appoint COmmission to take stck of progress and needs to reportthe same.District Council needs to have rep in State legis.

What the Constitutent Assembly recommended?Const provided for one Section and One Schedule - 6thand accepted the reccomendationsIssues considered by CA1. Problems of tribal regions highly complocated.because of border with many countries.Conflict torn region because of language, culture, relgion.State may notbe able to handle such complex situation.Act of Centre and State - would normally apply - Non applicationn is an exceptionbased on Governors decision.6th SCHEDULE AREASA PART1. Khasi Jaintia Hills District2. Garo Hills District3. Lushai Hills District4. Naga Hills District5. North Cachar Hills Distrcit6. Mikir HillsB PART1. NE Froentier Tract --- Abhor, Mismi, Balipara, Tirap ..2. Naga Tribal Area.Later political map altered in NE by creating several States.So now- 6th schedule = 4 State regions==>Tribal Areas ofAssam,Meghalaya,Tripura andMizoram.NAGALANDBefore 1962 - entire Nagaland was under this Schedule1962- Nagaland State was created- This led to removal of those areas from 6thSchedule.But Art 371 A created- with special status for NagalandARUNACHAL PRADESHIn 1974- Ar. Pr became UT and therefore, the areas in Ar.Pr was removed from 6thSchedule.Art. 371 H ccreated with special status for Ar. Pr.MANIPUR

Manipur was never in notification, then and now.However, when Manipur was created in 1971, Parliament passed legislation creatingDistrcit Council for Hill areas of the State.371 C- MANIPURHOW TO REMEBER AMENDMENT AND ARTICLES-

371 A = NAGALAND ---- 3rd letter from last is the Rule ---- A371 H = ARUNACHAL ---- 3rd Letter from last ---- H371 C = MANIPUR ----TILT U to C

OTHER DEVELOPMENTNew territories added undr Schedule is BODOLAND - 2003.

TIERS OF GOVERNANCEA. DISTRICT COUNCILSHence, for these 4 States - Assam, Mizo, Tripura and Meghalay- AUTONOMOUSDISTRICT COUNCILS ARE CREATED. ADC3 i assam3 in Meghayala1 in Tripura3 in MizoramB. No regional Councils exist.

C. Village CouncilsNot present for MeghalayaBROADLY STATED, in no States, three tier exist.However they have their own traditional institutions in place..Judged from todays standards they are inadequate as they present insufficientopportunities for youth and women.They are denied opportunity in Council and are largely unheard. Teir pre colonialtraditional communities have been found to be highly unaccomodative in today'scontext.However, if the new and modern system of democracy with rinciples of equality andelse is placed on them, it can lead to mistrust and tension. Isssues of pwer sharing andover powering are quite natural to arise.

IMPACT of 73rd and 74th aMEDNMENTSSome areas are exemted from the Application of this law and thus provisions are seen tothat effect in Article 243 M and 243 ZC.

FUNCTIONS OF THE COUNCILLEGISLATIVE, JUDICIAL, EXECUTIVE,, FINANCIALLEGISLATIVE

1. With the assent of Governor, the DC and RC can legislate in matter relating to :-Land allocation, management of forest not being reserved forest;use of canal;Jhum or cultivation practicesEstb of Village or town CommitteessTown police, health, sanitation.Appointnent if headmen;inheritance of proeprty;Marriage, divorceCustoms2. With assent of Governor, can form Rule on formation of sub ord local Council .3. DC can make regulations on money lending and tradingJUDICIAL1. RC/DC can constitute VIllage Courts/ Councils to the exclusion of any Court of Statefor trial of cases between STs with exceptions.2. The RC may also act as appellate body.BTC not given judicial powers.EXECUITIVEVary from Council to CouncilEstb and construct Schools, dispensaries, markets, cattle poiunds, roads, rtansportwaterways,Make regulations for regulating them.Function relating to agri, animal husbandry, village planning to which State powerextends may also be given to the Councils.FINANCEDistrict Fund & Regional Fund establishment.To credit all money received resply by the DC/RC. CAG is entrusted with audit ofthe same. Hence the same needs to be maintained as per CAG rules.

Power to CollectTaxes and FeesRC/DC can assess land revenue and impose taxes on land, prfoession etc.Entitlement to Royalties

For extraction of mineral wealth - throu licenses or leasesDisputes in regard to be dealt by Governor for setllement.Resources allocation - Est receipts and expenditure to be placed before DC firstand the in Legislatire of States.

GOVERNOR POWERS

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INTERNAL SECURRITY, CRIMINAL JUSTICE AND CENTRE STATE COOPERATION

National Security is not a Central subject, State subject or concurrent subject under theIndian Constitution.However, Security, if read from Art 352 and emergency provisions will amply show thatit is assigned under the Union.However, security is a matter over which both Centre and State, equally have interestand hence needs to be taken care in a coordinated manner.This is saved by the Articles 256, 355,356 and 365.Defence and Control & deployment of armed forces of Union are covered in Union list.Public Order and Police - State List - E1,2

Criminal Law, Criminal Procedure and Administration of Justice - Concurrent List. - E1,2,11So its spread across the jurisdictions of Centre and State and therefore the same mustbe dealt with most cooperation from both the Governments.Internal Security may be defined as :‘security against threats faced by a country within its national borders,either caused by inner political turmoil, or provoked, prompted or proxied by anenemy country, perpetrated even by such groups that use a failed, failing or weakstate, causing insurgency, terrorism or any other subversive acts that targetinnocent citizens, cause animosity between and amongst groups of citizens andcommunities intended to cause or causing violence, destroy or attempt to destroypublic and private establishment.’

Naxalism and LWE is a result of socio economic causes.Such issues cannot be said to fall within the ambit of law and order or military threatsfrom across the border. However, they cause both threat to society as well as nationalsecurity.National Security - is largely under the ambit of the Centre.Internal security, however, needs a coordinate effort of Centre and State.Other key related aspects coming in relation to Internal Security are:-1. Naxaalism,2. Jihadist mode of violence,3. Ethnic and Migration issues4. Role of media during Disturbances5. Police ReformsMAINTENANCE OF COMMUNAL HARMONYCommunal Harmoony, as a subject was very important to India for the reason of Indiabeing a seclar State. While guarding its secular credentials, the communal harmony wasto be acheived in two forms.a. By curbing communal violeceb. taking positive steps whch would promote harmonious relation between thecommunities.Communal conflicts started gaining attentio by 1960s.Assam riots -1960MP riots - 1961UP riots - 1980Bihar - 1982,

Godhra - 1982AP - 1983Punjab - 1984Mh- 1992Gujarat - 2002Odisha - 2008 (Hindu -Christian)Hydabad - 2010UP - 2014Assam - 2014Conversion issues - Odisha, TN (Meenakshipuram-1990)Ethnic issues - NECivilian issues - Kashmir.Communal issues can damage the fabric of secularism in the nation and hence actionfrom Union is deemed very essential in such context.Reasons for such Communal Tensions1. HISTORICAL2. CONVERSIONS3. LACK OF EDUCATION4. LACK OF EMPLOYMENT OPPORTUNITIES5. CASTE BASED POLITICS PROMOTING MISTRUST AMONG COMMUNITIES

Issues involvedOverriding responsbility is with States - because it falls under the 'Public order' realm.However, if it prolonges and threatens to cause inernal disturance or which haspotential for escalation to other parts of country, then it becomes a head under Unionunder Art 355Dealing with such an issue raises 5 important issues:1. Maintenance of communal harmony in the country is one of the keyresponsibilities of both the Union and the State Governments.The Government is expected to ensure that communal tensions and communal violenceare kept under control at all times.In such cases, what is the ROLE, RESPONSIBILITY and JURISDICTION of CENTREvis-a-vis States(a) During major communal tensions particularly the ones which may lead toprolonged and escalated violence?----PEV;(b) When such prolonged major communal violence actually takes place?2. What measures needs to be taken to PREVENT AND CONTROL SECTARIANVIOLENCE or any other SOCIAL CONFLICTS that may lead to prolonged and escalatedviolence?

3. What is a major and prolonged act of violence? What forms its parameters?4. Does NIC have a role here in maintaining and sustaining social and communalharmony in the country?5. What is the constructive role that media can play in preventing and containingcommunal and sectarian violence?THE ISSUES IN DETAIL:1. Maintenance of communal harmony in the country is one of the keyresponsibilities of both the Union and the State Governments.The Government is expected to ensure that communal tensions and communal violenceare kept under control at all times.In such cases, what is the ROLE, RESPONSIBILITY and JURISDICTION of CENTREvis-a-vis States(a) During major communal tensions particularly the ones which may lead toprolonged and escalated violence?----PEV;(b) When such prolonged major communal violence actually takes place?Centre needs to play a PARENTAL/ FATHERLY ROLE in containing the build up ofcommunal tension.PARENTAL ROLETimely advisoriesIntelligence sharingMonitoring situationProviding force-para military on request.Centre's responsibility to act under 355 in prolonged violence is a welll acknowledgedact.Liberhan Commission also opined the need for a strict law with exemplary punishmentfor misuse of religion and caste for political gains.2, SECTARIAN VIOLENCE and PREVENTIONPrevention can best be done through :-Planned implementation of welfare and development measures,

Regular interaction of the district admin with communities for homogenouspublic relations,Collection of proper intelligence in coordination with State and CentralIntelligence services.Prevention of rumour spreading.Spread of education and awareness.3. DEFINING ESCALATED AND PROLONGED VIOLENCESuch acts of violence which have the potential to spread to larger areas for longperiods and in a scale that would be injurious to a large number of people and be acause of damage to property within a a short time and having potential ofcarrying a threat to national integrity and security should be taken as major orprolonged acts of violence. Such prolonged acts of violence would have the potentialfor collective spread of communal animosity, regional and sectariantensions, which may ultimately escalate to secessionist or separatist movements oncaste, communal, language or regional lines.

4. ROLE OF NICIt is of limited use of NIC as an instrument for promoting and inspiring theobjectives of communal harmony.NIC could be used as a common forum to evolve a strategy beyond political lines.National Foundation for Communal Harmony, autonomous body funded by HomeMinistry also needs revamp and revision.5. ROLE OF MEDIAMedia sensalisation has led to escalation of violence.Need to regulate media from over reporting:~Frame strict guideliness~ Self regulation~ Empoewr State Govt to regulate media. This needs shifting subject toCOncurrent List.India is a nation with religious and linguistic minorities. Racial issues have always beentranscended by religious issues.Basically, society has the basic instinct of toleration and adjustment. The communalismis of recent origin siunce the British times when they attepmted to sever ethe nationfrom the spreading of INM.This has escalated after independence as well.CAUSESReligious ConversionsJihadi terrorismEthnic and sub nationalist approach - 'Son of the Soil'Ethnic insurgency - NE.

HOW?Involvement of political and seminally organized groups - abet communal conflicts.Rendering poor communities as they fall prey to their selfish ends.It is in this situation that healthy principles of rerligion are replaced bythenarrow mindedness of fundamentalists who exploit the weakness of the religion.WHY?Electoral purpose and sometimes for partisan gains of religious leaders.Hostile neighbours also add to the menace in India.CONSTITUTIONAL PROVISIONSArt. 25,26 - Right to Freedom of religionArt. 29,30- Cultural and educational rights of minorities.Normal communal conflicts can be held as under the Law and Order in State ListHowever, maintenance of communal harmony can fall under the secularfeatures ofCOnstitution. - hence joint responsibility of Centre and State.Roles and Responsibilities may be held as followingStates - Direct participants, front line organizers for maintenance of communalharmony and for controlling communal conflicts

Union - Role of paternalistic coordination, financial, legislative, advisory andadmin support including Para miltary

ARTICLE 355External aggressio and intervention of Centre has never been a matter of debate.However, Internal Disturbance is a very debated issue in many States where Centre hadintervened.If Art 256 is read with this provision, it enables Union to give sufficenit directions to theStates to comply with.The recommendations suggests that the Centre shpuld use this ower sparingly anddefinitely with the consent of the States.

CONCLUSION AND RECOMMENDATIONS.................................................................................................................................................................................CENTRAL LAW ENFORCEMENT AGENCYUnion has been planning to have a CLEA which could take up suo motu investigation ofcrimes having inter state / international ramfications with serious implication fornational security.NIA is such an enforcement agency!POTA was a legislation in place in 2002. Repealed in 2004.Reason: severe abuse of poer!UAPA - 1967.Amendment neededAmended in 2008.Issues and QuestionsIndia's Internal security, because of geo political and geographical conditions haveserious external connections, esp with neighbours. Such threats would need a synergybetween Centre and State.Innrespect of the National security the overall objective of the Centre State relationneedss to be:-1) to try to pre empt and prevent any possible threats.2) to contain the damage to human life and proeprty in case of such incidents takingplace3) to strengthen law enforcement system to make it deterrent for such crimes.The need for A central agency will serve the prupose only with an equal strengtheningof State POlice.What are the crimes that can be considered as affecting the National Security.NIA should be able to undertake holistic meaures to preempt, prevent, controland detection of terrorist crimes.Investigation, as per the law requires Central Govt approval,. This could slow down theprocess.

Circutious and delay centric agency is accused friendly. - leads to loss of info and timeCrime Investigation is a quasi judicail function of the Police and therefore need not falldirectly in the hands of the E xecutive.UAPA Amendment expandded meaning of terrorismIt also criminalizes the acts of demanding firearms, explosives, bombs or any otherhazardous nuclear biological or chemical etc., device or material for the purpose ofaiding, abetting or committing a terrorist act.One imporant change that needs to be effected is that the Confessions to be made beforethe Police needs to be admitted as evidence before the law. This could be safeguardedusingCamera recordingTapes needs to be produced before CourtPresene of advocate for accusedWarning of video tape recording to the accusedProduction of accused before Magistrate immediately.This is suffered by lack of credibiltiy of police institutions. Civic society at large hasalways opposed the need for confession before the police because of the abuse of thesystem..Hence reformatory angle is always linked to Criminal Justice reforms and police reformsLIST OF CRIMES UNDER NIALargely those that comes under List 1List 2 items largely fall under IPC.Recommended that crimes that have inter state linkages and direct link to terrorismshould be brought under the purview of the NIAThis inc terrorism, production and distribution of Fake Cuurrency Notes,espoionage, smuggling arms, ammunitionl money laundering, drug trafficking,,organised crime, hijaacking and assasination attempts on iconic figures, cyber crimes,cimes related to axcquisiton of posioous and hazardous substances, bio terrorism narcoterrorism etc.Union Home Minister, suggested creation of a holistically responsible National Counter– Terrorism Centre. In a nutshell, the Home Minister’s view is that since the HomeMinistry is primarily responsible for the maintenance of Internal Security in the countryand answerable for any lapses there off, the intelligence and investigation agencies andother organizations and departments involved in this work, even though not under theadministrative control of the Home Ministry, should report to and function under theNational Counter Terrorism Centre(NCTC), where Internal Security matters areconcerned and fully cooperate with for the purpose of sharing information and intelli

These agencies and organizations may include the Intelligence Bureau(IB), the Researchand Analysis Wing (R&AW) including the Aviation Research Centre(ARC), the NationalTechnical Research organization (NTRO), the National Intelligence Grid (NATGRID), theNational Investigation Agency (NIA), the Revenue Intelligence Agencies, the NarcoticControl Bureau(NCB) and, indeed, the Para Military Forces including National SecurityGuard (NSG) etc.The chief of the NCTC in turn would function under the Home Minister. To quote fromthe Home Minister’s paper, the chief of the NCTC ‘will be the single person accountableto the country on all matters relating to internal security. At the Governmental level, andin order to be accountable to the Parliament, it would be logical and natural to place theNCTC under the Ministry of Home Affairs’.This is yet to be materialisedCONSTITUITONAL POSITIONArt 355 speaks of Internal Disturbances!The judgements of the Supreme Court in Karta Sinngha nd PUCL Case and other casesleave no doubt that any criminal act which is aimed at, or which clearly has the potentialof, causing detriment to the country’s security, integrity, stability or sovereignty, ordestabilizing its economy, is to be deemed as a threat to national security and defence ofIndia adding that such perilous activities cannot obviously be left to be routinely dealtwith by the concerned State police force as an ordinary crime or law and order problem.The Centre should have, in the view of the Task Force, a clear cut role in dealingwith such acts, albeit in active collaboration with the State Government(s) concerned.The Commission endorses this view that creating effective legal and institutionalinstruments to deal with external aggression, terrorist acts and serious internaldisturbances is a solemn duty of the Union Government obligated by the Constitutionitself and not a matter of choice.CONCLUSIONCountry needs a National Structure to maintain Internal security.It should be capable of handling terrorist attacks, militancy, insurgency etc. It shouldtake care of pre emption, prevention, detection, investigation and prosecution.US has come up with Dept of Home Land Security with all bodies placed under it, exceptFBI - after 9/11.

NIA has its limitations under the aCt and cannot function effcetively to tackle internalsecurity.Rather than amending NIA, a ew body NCTC shoudl be created.Centralisation of function si the key feature and this mst be made in the nationalinterest.RecommendationsNIA has an important role to perform and all necessary steps need to be taken tostrengthen the Agency through the requisite amendments in the NIA Act. For thispurpose, all crimes related to terrorism, such as terrorism, production and distributionof Fake Currency Notes (FCNs), espionage, smuggling of arms and ammunition moneylaundering, drug trafficking, organized crime, hijacking and assassination/assassinationattempts on the life of iconic figures/ political leadership, cyber crimes, crime related toacquisition of radio-activeand poisonous substances, bio-terrorism, Narco-terrorism, i.e. drug traffickingmoney used for organizing terrorist operations, etc., should be brought into the ambit ofthe NIA Act.NIA will have the jurisdiction in all these types of crimes on the presumption that theyare terrorism related, unless proven otherwise. The burden of proving that the crimecommitted is not terrorism related will lie solely with the accused. This is a new area ofgovernance and crime management. The benchmarks of Centre-State cooperation andthe understanding set now in its implementation should be such that they can stand thetest of time and be an effective tool for handling terrorism and other related organizedcrimes while still enjoying the full trust of the States.a structure at the National level, be it NCTC or any such designated entity, should becreated, which may subsume the NIA too along with other concernedAgencies/Organizations in its overall character. The Commission feels that the time isright to break from the traditional models and create this structure which should befully empowered and responsible for the Internal Security of the country and should,accordingly, be equally accountable. The commission would like to reiterate that in thecreation of such a structure the role of the

States should be clearly delineated as without that the Central structure maynot be able to achieve the desired level of success.on the issue ofadmissibility of ‘Confession made before the police’ by the accused in terrorism relatedcases which is crucial to the fight against terror. A consensus must emerge between theCentre and the States on this issue. The case both, for and against, has been spelt outclearly by the respective votaries. The severaljoint consultative machineries that we have advocated in our report should be utilizedfor the purpose of coming to a consensus in the matter.

SUO MOTU DEPLOYMENT OF CENTRAL FORCES?

The framework of the Indian Constitution with the balance of power tiltingtowards centre came about as a result of the concern for the ‘unity and integrity’of the country.This was the reason that despite Entries 1 and 2 of List II (State List) in theSeventh Schedule placing public order as the responsibility of the States and assigningpolice asthe instrument for this purpose at their disposal, certain other provisions were includedin the Constitution outlining the obligatory role of the Union Government formaintainingthe internal security of the country.Entry 2A in Lst 1 was inserted in 42nd Amendment and the same remains despiteseveral changes were rectified in 44th Amendment.This shows the usefulness and importance of that provision.A convention thereby develope was that Central forces will be deployed on the basis ofconsent of States and not otherwise.This was witnessed in cases of Naxalism, ULFa adn jihadist terrorism where States hadasked for more Central forces in the State.

Commission opined that suo motu can come in exceptional circumstances for shortestoperiod of time, with the knowedge of States. MAY AOPLY RAREST OF RARE CASECommission suggest for greater support by Union in imporving poloice forces in statesy supplementing with tech, and other security infrastructure.

MIGRATION ISSUESRefer Article 19 (1) d,e,g.“all citizens shall have the right to move freely throughout the territory of India; resideand settle in any part of the territory of India; and practice any profession, or carry onany occupation, trade or business”.CausesLivelihoodEmploymentMarriageAlso promotes unity.The States can have laws to provide certain protection under Article 19(5) and (6) ofthe Constitution as long as these laws are not to the detriment of the legal andConstitutional rights guaranteeing freedom of movement, residence and employmentprovided under this Article to all citizens of the country.Migration was witnessed with India's economic integratoiion developed by PlannngCommission whereby PSU were set up in certain parts of the Country.Same witnessed in private sector - Mobility Migration ; and in art and culture..Shiv Sena - opposed in 1966. They propunded regionalism - son of the soil approach.Inter State movement is the most cause for problem. IIntra state or Inter districtmovement is not an issue. This migration is largely due to economic imbalance Theeconomic planning in India aimed at inclusivesness and ensuring equality. Hiwever, thesaame has not been acheived in India in the real sense.

The inequality led migration is known as 'Distress migration'.Other than this India sees large scale migration of people from Bangalesh and Nepal toIndia.The benefit of migration to receipent state is that of economic growth with the humancapital and also some kind of advantage by money remittances to other states.RECOMMENDATIONSNIC Should promote their engageent and ivolvement with local cukturePolitical parties should take a strct stand towards such ssues of political violence andThe Communal Violence Bill if passed should be app,ied strictly.The larger ocnstitutional goals must be repspected.They may be encouraged to be part of local electorate.This way they can eegt enngaged in lcoal affairs and also raise their voice for the needsad requiremets.They can by this manner establish their credentials in the community in a ong term.States and GoI shoudl eremove economic imbalances that haunts many States.Removing Economic imbalance is a apriority but the effect will be long term. Thecurrent mgration will move on hence the states should sensitize effectively all whooppose it

OTHER INTERNAL SECURITY ISSUESNELWEJKNaxal Problem and LWE

Financial sustenance of NaxalitesExtortionEarlier by forceNow voluntary payment by industries, traders etc under duressSale of illicit drugsLooting of arms and ammunitionsMain StartegyViolenceEvolutionMerger of Peoples War Group and Maoist Cmmunist Centre of India in 2004 - escalatedtheir presence and led to formation of CPI (Maoist)This envisioned Plan to develop 'Red Corrdior' - from Indo Nepal border toDandakarnya region.90 districts influenzed by Naxal threats.34 badly affectedStates like Jharkhand, Chhattisgarh, Orissa, Bihar, Maharashtra,Andhra Pradesh and West Bengal are the worst sufferers from the violence purportedThe fact that the movemen has sustained for decades and spread to many sstates do notundermine the reason being only as ideological. Instead the reasosn are deep embeddedinto the deep discontent people have over the raisng ineqaulity, under development,poverty etc.

Grievance us TWO FOLD:1. Lack of Goverance2. Exploitation of natural resources, forest and forest cover.Areas which have seen the fruits of development, where infrastructure is good, wherethe local economy has been well integrated with the rest of the country, where peoplehave participated inlocal governance and where their aspirations have been recognized and nurtured bythe State administrations, have withstood the ideological onslaught.Solution

Possibly is :- 'Inclusive and Good governance'.

FOUNDATION OF POLICY TO HANDLE NAXAL ISSUE - 2 core elements1. Rapid development of the affected areas guaranteeing social justice to

the tribals and other backward communities inhabiting these areas;

2. Taking all needed administrative action to ensure that the Rule of Lawand the Writ of the State runs fully and effectively in the areas which arepresently under the influence of the Naxals.

There are difference of opinion in the way the matter is handled despite havingidentified twow core elements to deal with the threat.Opinions are raise by NGO, civil society, regional political parties etcDIFFICULTY IN IMPLEMENTATIONRapid devt cannot be ensured in the area because of continuing violence.The undedevelopment and lack of social justice is being proppageated in thee areasby the naxal group thus increasing their base size.Regular damage to transport infrastructureCausalities to security forces.WHY THERE WAS SOCIO ECONOMIC NEGLECT IN THESE REGIONS FOR SEVERALYEARS?

PRE REQUISITE TO AN APPROACHCOLLECTIVE AND COORDINATE ACTION SORT FOR because of its sread to severalregions.UNION APPROACH -'ABJURE VIOLENCE FIRST, TALKS LATER'Both cannot go together.Towards abjiring violence GoI as been insiting on surrendering of arms.Peace talsk first initiative was put in place in 2004 _ in AP.During talk periods, Non action by Govt led to regrouping naxalites with greaeterforce.Talks were not succesful and naxal acts followed. this led to stern action fromGovt.

IMPROVE CENTRE STATE and NTER STATE COORDINATIIONInter State - By joint action by neighbouring States.InitiativezRegular securyt reviewsIntensified Joint anti naxal operationsIntelligence sharing'Hot pursuit of extremistsGeneral infor sharingFortification of POlcie stationsCoordinated mechism with State Forest DeptTo check inter state smuggling of woods.Deployyment of CRPFCreation of local joint resistance groupsTo keep youth away from these.Sensitiation of Mass mediaTo project the schemes and the threat of naxal violeceOTHER NEEDSStates needs Centre finance and coordinationFinanceFor security and development of infra adn modern equiomentEmployment to the youth esp in para militaryWill help in terrain familiarity.Better policing infra

Naxal issue demands serious Centre - Satte cooperation

State Level developmentsLand reformsEtension of PESA to the regions.Vesting of foreet rights under the Forests Rights Act.Better delevery mechansims as part of Good Governance.Posting competent officers for fixed tenure.Union level developmentsRehabilitation and Resetllment Policy - 2007Mke displacement of peole for economic growth an easy option.Provids for 'Land in return for Land' for displaced families.Prefernce in project Jobs to at least one person in the family.Vocational TrainingScholarship to childrenHouing benefits to affected familiesNREGAEmployment is provided on demnad for BPL, SC ST population inc womenOther CSSBenefit is most of these projects are at Panchayat level opertaio and hencesuccessful to a good extent.CONCLUSIONS AND RECOMMENDATIONSIf ABJURE VIOLENCE FIRST principle didnt work must to the benefit of the State,alternative initiatives needs to be worked out..Track II initiatve of setting up interlocuter can be tried.Interlociters need to be 3 or 4 personnlesaccompanied by security and intelligence expertsEminent persons who are sypatizers ofthe group who understand the socioeconomic issues but at the same time believe that violence is not the solution.This interlocutory growup needss to sensitise the nxal leadership without beingdefensive about Goi Initiaive such as R ad R policy, land reforms, NREGA, Forest rightsimplementation, PESA etc..DEmands full support of State Governemnt in such initiatives.

NORTH EASTPartition led to further isolation of NE leading to a 2 km chicken neck as the onlymeans to connect between the Indian mainland and NE region.It has 8 states. 200 ethnic groups- several languages - multiple dialiects and sociocultural identities.98% of the border is connecting neighboring countries thus making it more sensitive tointernational matters.

PROBLEMAsssertion of various groups in asserting their identity esp in the perseption ofneglect by the dominant ethnc group of the region, Mostly intra ethnic conflicts havespiralled now..Neglect by the region, State and UnionRESULTNeed for sovereigniity. maximum autonomy, separate States, empowered DistrictCouncils.Serious threat to security and intergity of the nation,Violence has been conained to a great extent due todialogue proces, peace taks and Suspension of Operations Agreemnet.Creaion of Bodoland Territorial COuncil - 2003Now largely isolated regions have insurgent grooups-- but all have a commonality ofcause.1. Economical infrastructure backardnessLed to unemployment, lack of ooprotunities, insecurity etc.2. Identity crisis among the ethnic group.ITS A CHAIN LINK PROCESSINTIAL NEGLECT BY STATES- Lead to Imbalaces in the society-- Leads too tensions--- Violence .. Once this stage is reached, develpment becaomes a problem.CONSTITUTIONAL PROVISIONS

Under Article(s) 371(A), (B), (C), (F), (G) and (H), introduced from time-to-time startingfrom 1969 special provisions have been added in the Constitution for theStates of Nagaland, Assam, Manipur, Sikkim, Mizoram and Arunachal Pradeshrespectively for the protection of customary laws, religious and social practices and ofthe special position of some districts or sub-regions having distinct ethnic identitieswithin a particular Stateetc.Besides, some of these Articles provide that no Act of Parliament in respect ofthe specified subjects shall apply to the particular State unless its Legislative Assemblydecides that it be so by a Resolution.INTER STATE BOUNDARY DISPUTE

States like Assam and Nagaland have bundary disputes and to prevent its escalationthe Centre has deployed para military forces in the region.NE Boundary Commission has to be constitututed to take care of this issue.CENTRE - STATESCordinated and COncerted effort is neededSharing intellgience,AFSPA isssue needs reconsideationa and suggested by StAtes to repeal the sameand put in place a law to deal only with terorism.AFSPA - 19581st applied to Assam, the Manipur as UT, then.Later to all states of NE. not Sikkim - 1972JK - 1990Now argely in Manipur, Trupura, Asam, Ngaland. Little in meghalaya and Ar.Pr.Reason for holding up this lawSeccesionist movement in the region.Opposition has been raised by NGO, civil society and HR grups on cintinuation of sucha group.2004 - Central Govt appointed a Committe to overlook the situation and recommendaon continuaton of AFSPA2006 - submitted report - fiding naot made public.2nd ARC - 2008 - To repal the law and amend UAPA to exted to NERCommission - To repeal.The Act is making situation more complex.OTHER ISSUESPOROUS BORDERS with Myanmar, Bdesh, China , Bhutan.INTER COUNTRY MIGRATIONSmuggling of drugsFake currencies,Illegal transit of arms and ammuniationHOW TO DEALTWO WAY APPROACH1. AT THE COMMO ISSUES2. AT INSUGENCY SPECIFIC ISSUES AS THESE RELATE TO EACH ETHNIC GROUPNeed to Create Regional Infrastricture Development Authority has been emphasized. inChina's Yunan Privince the same way was adopted to deal better with the issues.Create Regional Autonomous Planning Body with one member of PC as its head.

Create NERC in the lines of ISC udner Art 263.To amicably settles issues.Strengthen Distrct and Regional COuncilsInterlocutary approach with a single vsion of restoring vision, iinstead oof differentvisionsIntelligence sharingInter State Border dispute settlemntCooridinating joint state actionsConstituting Reggional Secutiy AuthoritySuch a body should not come in way oof para military forces who have beenassigned their respective jobs or even of unified STate commnads.It should act as a facilitator for providing gudance on overall security situation inthe regionand as coordinator between Army, Central Para Military Forces State policeForces so as to ensure maximum cooperation and understanding.They need to wokr on a stretgy toreduce dependeance on para mailitary and armyand replae it y States by developing the State forces simultaeously.Other issues

Social infraWater resourcesCreate NE water Reource Authority - as PM then required.to look at composite development, and management of waterresources for flood control and irrigation, tourism and transportation, hydr power envimanagement, etc.Create Regional Infrastructure Advisory Council.It may provide for devt of HR so that skilll devet from local regions canbe used for development programs..MIGRATION ISSUESPara Military ForcesNepal Bhutan BorderShashatra Bheema BAl (SSB)ChinaITBP - Ind Tietan borderMyanmarAssam RiflesBdeshBSFBdeshi migrants are sort by Indian emloyers for the very chepa labour and more hoursof work they need to put in place.

A work permit regime should be set in place to track the migrants from Bdesh.NIC needs to work to coordinate inter mingling of mainland Indians from the other NEregion people.

J & K.....................POLICE REFORMS

CRIMINAL JUSTICE SYSTEM

SOCIO ECONOMIC DEVELOPMENT, PUBLIC POLICY AND GOOD GOVERNANCEIntroductionEnsuring good governance and achieveing social and economic justice are m=among themost important Constittional goals in India.While analyzing the performance of successive governments on socio-economicdevelopment and delivery of basic services for the welfare of people, focus needs to beon the dynamics of public policy and good governance under the Indian ConstitutionalScheme. Its futile to discuss whether the system is failed one or whether the personsbehind them have failed when the debate of need for good governance has come inplace.A. PUBLIC POLICY, CONSTITUTIONAL GOVERNANCE AND PUBLIC ADMINISTRATIONPolicy making to be more InclusiveOrganisaing Governance demands development of a good public policy.Public policiees are more important in federal system where Governance works inseveral layers.Good policy pre conceives consultation with the public. AN effective policy can helpdevlop into legislative frameworka. PUBLIC POLICY, CONSTITUTIONAL GOVERNANCE AAAND PUBLICADMINISTRATION

Policy Making to be more Inclusive and ConsultativeGovernance is effectively done under the background of a policy.In Federal system, Policies assume more significance because of devloution of powerswith various organs.

Converting Policies into laws and programmes needs support of all stake holders. Thissupport is garnered through CONSULTATION.A good governing system mmandates and presumes Compulsory Consultation withstake holders before any sort of policy is put in place.Eg: EIA has public consulatation as a requirement.Bills are sent to Committees which in turn send it for consultation.However, strict Policy decisions do not consider Consulatation as a norm.Hence, some litigation is filed against the pollicy for concern amonh the publicespecially if it involves at stake the social security and livlihood issues.Policies should identify the different categories of stakeholders- who would be affected,first.Govt should respond effectively to the concerns raised in Public ConsultationPolicies should be clear on guidelines on implementation and monitoring based onidentified parameters and targets.This helps in effective implementation with the larger support of the public.'One Size Fits All' Approaach needs to give way to building policies which are fexible, asnecessitatated by the diversity of the nation.Ina democrati system with multi functional Governemnt, it is not always posssible forGovernment to take up and decide on policy matters. Hence, citixens should be given aprovision to seek policies in areas which concern them. Today PIL is the method takenor adopted requiring Government to frame polcis. This must be converted to anopportunity to citizens to raise the issue directly with the Government. Citizen'spetitons to Government increase legitimacy in Goovernance, rather than taking it toCOurt.(An effective study must be done by the Govt and based on which action may or may not betaken. All of this, does not vitiate the person's right to take the Government to Court viaPIL.-my inputs).

Constitutional Governance and Pub AdPOWER TO PUBLIC IN THE CONSTITUTION IS REFLECTED UNDER PREAMBLE, FR andDPSP.Art. 37 = Directives are fundamental in Governance!So, if public power is exercised in the spirit of Preamble and FR and DPSP, then it makesway for good governance.

In India, Pub Ad, continues in the colonial mould.No improvements largely seen to improve quality of governance.So, what was enshriined in the Constitution, needs to be recognised as a right ofcitizens to good governance. Constitution believed that it is part of Constitutionalgovernance. But the same has been ill considered by successive governments in India.Making Government ACCOUNTABLE is an essential step i ensuring implementation ofDirectibve principles.This can be done by asking Government to submit annually to Parlimaent on status ofimplementation of DPRTI is an essential step in furtherance to it.2nd ARC on civil sevants's efficiency needs to be implementedCivil servants needs to be insulated from political pressure to perform functionsobjectively and fairly.Police Reforms had been stated now and then by various Committeess and SupremmCourt but has never been given a say in Govt policies.pub Ad works in a set of rules and proceduresneeded constant revisiontoo many levels delays process and broods coruptionNeeds revamp of performance evaluationOnly then punishments would ake sense.ICT use needs to be enhanced.AIS officers needs to be politically neutral and functionally independent.Panch Raj needs more devolution of functions and cooperation of civil servants.Vigilance needs to be pro active to improve pub ad and ensure delivery of services tothe people.Civil society pressure needs to be created to wake up admini. The acheivement ofCiizens in other States must be passed on to the cisitizens of other states.CITIZEN'S CHARTER AND ACCOUNTABILITY

Art 350. - Citizens representation forredress of grievance.Most neglected area in Pub Ad :- delivery of services.Govt needs to prepare Citizen's Charter in which Entitlements to citizens are listed andthe time when it could be expected.To monitor and act as a grievance redressal in case of failure to deliver services, anOmbudsman must be created.Fund devolution is followed by Financial audit, but not performance andimplementation audit.Oversight mechanism are very important in such cases.Social audits must be made mandatory at any cost.

there should be third party assessment.Conclusion and Recommendations

Policy Making needs to be more Inclusive and ConsultativeIn sectorspecific subjects, mechanisms like public hearings may be statutorilyemployed involving Panchayats and Municipalities. This should be done throughholding of ‘mandatory consultation’ wherein the governments, both at the Centre andin the States, should clearly respond to the views expressed and concerns raised atthese public hearings before finalizing the policies for adoption.The policies themselves should clearly identify the different categories of stakeholderswho would be affected, in one way or other by the policy. Further, the policies shouldcontain clear guidelines on implementation and monitoring with reference to identifiedparameters and milestonesOne Size Fits all Approach needs to stopThere needs to be constituioal empowerment to the people to petition theappropriate government for making or amending policies.PIL does this work now.Article 350 does envisage such a procedure for redressal of grievance in respect ofdelivery of public services. This approach would have a two-fold purpose: first, wouldhelp to preserve the separation of powers, and second, would enable the policies to becitizen-centric.Need to Improve Vigilance System in Public AdminsitrationCivil Society involvement in public policy and administration is the best strategy forgood governance. What is important therefore is to maximize opportunities thereforewhile making policies and programmes. In this regard, the Commission recommends,inter alia, the following steps:(a) Let “good governance” be introduced as a Directive Principle of State Policy.(b) The citizen’s right to have a corruption-free government be acknowledged as part ofadministrative law.(c) To increase the efficiency from civil servants, the rules of recruitment, remunerationand career progression need to be completely revamped on the lines recommended bythe Second Administrative Reforms Commission (2008). The civil servants need also tobe insulated from political pressures to be able to perform their functions objectivelyand fairly.(d) There is a need for the All India Services to be politically neutral and professionallyindependent. Vigilance structures and Lok Ayuktas need to be strengthened toconstantly monitor and improve the quality of public services.(e) It will be desirable to disseminate the achievements and good practices ofbetter performing States through publicity campaigns and conferences to make citizensrealize what their fellow citizens in some other States have been able to achieve withsame or less resources.

(f) All service providers, government or private, be asked to prepare and publish theentitlements of citizens in relevant sectors through “Citizens’ Charters”.(g) Social Audit of the major policy initiatives of government at periodic intervals bemade a mandatory practice and reports be placed on the table of the Legislature everytwo years with comments from appropriate governments.

SOCIO POLITICAL DEVELOPMENTS AND ITS IMPACT ON GOVERNANCE

SOCIO POLITICAL DEVELOPMENT AND ITS IMPACT ON GOVERNANCE

Reggional and Sectarian Pulls and Ntional PurposeDESPITE THE CONSTITUTIONAL GUARANTEE OF CENTRE AND STATEAUTONOOMYN IN FUNCTIONING AND GOVERNANCE, CERTAIN DEVELOPMENTS CANACTUALLY AFFECT THE NATURE OF GROWTH AND GOVERNANCE IN THE NATIONWhat are impact of regional issues on Governance at Central Level1. Emergence of regional parties and a Coalition with National Party at Centre can beseen as threat to federal system and also an oppotunity to enhancing the integrity ofnation.Threat because of narrow national outlook and the need to settle things to theirdemandOpportunity because they are forced to temper their narrow outlook for a nationaldevelopment.Weakness lies when two regional parties belonging to 2 states form a part of onecoaltion and at the same time are at loggerheads due to some inter state disputes.NeedTo balance the interestsSovereginty and integrity is important.Any force, within and outside which threatens existence of the nation must becountered. Regional parties and forces must be seen with a factor of suspicion too.Eg: j&K, Punjab, NE States, Naxal regions.Telangana issue.Having had a very diverse and plural society, it is important to bear in mind thatthe constitutional structure which must be preserved itself allows sufficientroom and flexibility for the many diverse identities that make up India.Benefit of having regional identities are that regarding them as vital to govvernance canwork a long way in curbing tensions, and thus contribute towards national integrity in ameanigful sense.

Is, therfore, the Coalition politics an impediment to the growth and development of thenatio?Commission says no.Holds that it is not inherently problematic,Because:It is a result of consious choice of Indian electrate on many different occassions.Hence, the reasoning that it lacks logic and eraason cannot be stated easily.It also points that exisiting All india party or any other party could not address thespecific issues of the problem of that region or community or language ased, that forcedthem to come up with such a move of creating regional parties.They indeed also help in making more accountability at village levels.Even if seen as a threat for the Unity and integriy of nation, States have opined thatas far as they have full fith in the Constitution, such regional parties born out ofcircumstance, can not be considered as threat to India's integrity. Though politicalgrowth envisages some kind of streching too far and beyond their limits, it raises noissues or concerns to raise alarm of national security. Such prblems are poltical andhence needs to be dealt and solved oplitically, not legally or constitutionally.Some good examples of having reginal parties are in Punjab which helped eliminatemilitancy, South states where language related tensions were clamped down.LSG and Centre State relationsIssues are raised by States that Centre allocates funds directly toLSg rather thanthrough the machiner of State undr which LSG form an inherent organisation.Centre should be acutious in such devolution of funds.Because:1. areas in respect of which it is allocated is largely uner State domain - Legally;2. Keeping States out of is purview leads to anomalous situation. where entity withconstitutional powers are deprived of power to function effectively.3. When Centre couldnt devolve funds , the lack of cooperation rom states will leadto grave consequences.CONCLUSIONS1. Need to develop a positive approach to sectarian mobilisationTake balanced and mature approachConstitution allows for enough flexibility to acocmodate regional sectarian andseparatist movements as long as they are within the parameters of the Constitution.Centre needs to be more accomodative of the various bodies, as far as they are inconfirmity with the Constitution.

2. Coalition politics is a Game to be played within Constitutional FrameworkCulture of shared governance needs to be pracised and nurtured for goodgovernance.3. LSG and CS relationsCentre needs to be cautious of byassing State machineryNeed to alocate funds through State Govt is empphasized.BASIC NEEDS OF THE PEOPLE, DIRECTIVE PRINCIPLES AND STATE

ACCOUNTABILITY

What are the COnstitutional responsibilities of the Union and Centre wrt fulfilment ofFR and DPSP.FR guaraantees our rights as citizens and limits the Governmental powers.Correponds to ICCPRacts as restrints on StatesDPSP are fundamental constituional goals in the realm of socio economic justicethat is to be kept in mind while the Cnetre or State devises and executes policies.They are non justiciable.Corresponds to ICSECR.Confers positive duty on state.SC:- Balance between FR and DPSP is itself a basic structure of the COnstitution. Henceoth are fundamentally important and neither can be absolutely be prioriized over theother.Constitutional Responsbility for Implementation of DPSP.Legal and technical perspective of the Constitutional vision and the demarkation in theresponsbibilities of the Centre and State.Article 13 (2) states that:- “[t]he State shall not make any law which takes away orabridges the rights conferred by this Part and any law made in contravention of thisclause shall, to the extent of contravention, be void.”Article 12 of the Constitution defines the meaning of State for the purposes of theChapter on Fundamental Rights. It states as follows: “In this Part, unless the contextotherwise requires, “the State” includes the Government and Parliament of India andthe Government and the Legislature of each of the States and all local or otherauthorities within the territory of India or under the control of the Government ofIndia.”Hence from the reading of Art 12 and 13 it is evidennt that FR applies to all levels ofGovernment and to all type of laws.

Article 37 states as follows: “The provisions contained in this Part shall not beenforceable by any court, but the principles therein laid down are neverthelessfundamental in the governance of the country and it shall be the duty of the State toapply these principles in making laws.”This, when read with Article 36 which states State means Centre and State can lead to aconclusion that technically, both Centre and State have resposbility in implementing theDPSP. The issue in matter is while both the Centre and State are expected to function inthe fulifilment of such policies, it may be noticed that both the Governments need notwork in an identical manner in the fulfilment of such duty.This differntiation of works between two governments arises because ofdifferential capcaity of each Governemnts.1. Whil State has limited taxing powers and therefore little income, the Centre hasmore taxaing power and other means to derive income.In this context, the finance must be seen at frst before devolving the duties andresponsbilities of the Centre and The State.2. Constitutonal powers of Union and State are very diffeernt as enshrined in the 7thScheudle.Here the powers are well demarkated. However, some constitutional goals such aseducation and health care are expected to done by all levels of government. Therefore inthis context the respective duties of both centre and State must be clear to avoid anytype of anomaly. Further more this demands coopertaive federalism and constructuvecollaboration.The responsilities in such coontext are joint and several. While legislative formulationand mplemntation may come from States, the finance respurces maybe folowed fromthe Centre.For effective governance, periodic assesment of Governace under DPSP needs tobe takenand reported to Parliament so that the same is brought to the knowledgeof the public.This method is adopted in UN when India signs treaty. Annual or Bi Anual reports aregiven by the Cnetre about the developments taken i so far as such initiatives areconcerned.The DPSP may as well be updated with the change in time..It cannot be denied that there is a Central bias in the Constitution wrt maters listed inthe State lIst.For eg:- in Agriculture:Primarily a matter in the State list; however there are several facttors related to agrithat comes as part of Centre.

THE WINDOW FOR CENTRAL INTERVENTION AS LIKELY AS FOLLOWS:(i) Broad Scheme of Part XI (Legislative and Administrative Relations).(ii) Aspects relating to Agriculture falling under Part XIII on Trade and Commerce.(iii) Entries 42, 43 and 44 of Union List relating to inter-State trade.(iv) Establishing standards of goods for export under Entry 51 of List I.(v) Control of industries including agricultural industry under Entry 52 of List I.(vi) Entries 64 and 65 in List I relating to scientific education and research.(vii) Entry 66 of List I on standards in higher education.(viii) Entry 20 of List III on economic and social planning.(ix) Entry 29 of List III on prevention of infections diseases in plants.(x) Entry 33 of List III on trade and commerce.(xi) Entry 34 of List III on price control.

RTE -

Art. 45The State shall endeavor to provide, within a period of ten years from thecommencement of this Constitution, for free and compulsory education for all childrenuntil they complete the age of fourteen years.”Mohini Jain Case (1992) - Edn is a FR.P.Unnikrishnan v. State of AP - Art 45 has 10 year limit for a reason. The passage of 50years has effectively converted the non justiciable right into a fundamentalr ight.However, Article 45 doesnt speak of economic capacity and development as in article 41which speaks generally of socially relevant matters.RTE also means that a citizen has his right to call the State to provide educationalfacilities to him in the limited capacity of the State.State cannot vie away from its repsonsbility by saying that it need npt provideeducation to its citizens because of limited capacity to provide.Its fundamental to enjoying RTL.Not all DPSP elements falls in to the ambit of Par . RTE is fundamentally importance.

THE QUESTION OF SHARING RESPONSBILITY BETWEE THE CENTREE AND THE STATERCFCE ACt 2009 Passed.The major wuestion in frmae is relating to devolution of powers.The broad framework uner the law relates to fianncial and administrativeresponsbility of the Centre and State's responsbility to implement the same.

Act states that the State and Centre shall have concurrent responsibilities for providingfunds for carrying out provisions of the Act.The Centre shall provide expenditure details and provide State Govt with percentage ofthe costs, in consultation with the State.Centre may ask the F/C rto examine the need of additional financial resources.SSACSS - to universalise the elementary education thru sitrict based, decentralisedplanning and iimplementation strategy by community ownership of the school system.Main Strategies of the Scheme

1. Institutional Reforms - By oth Centre and State.of Edn admin, acheivement levels in schools, financial issues,

decentralisation, community ownership, review of State Education Act,rcruitment of teachers and ratio of teacher to student, monitoring and evaluation.

2. Community Ownershipdecentralisation with more transparency.

3. Focus on Special Group - SC/ST/ minority, urban deprived, children of otherdisadvantaged groups, children with special needs.4. Finance- Direct installment of Central funds to the State.Critique of the ActHIGHLIGHTS

1. All children between the ages of 6 and 14 years shall have the right to freeand compulsory elementary education in a neighbourhood school.2. Kendriya Vidyalayas, Navodaya Vidyalayas, Sainik Schools, and unaided schoolsshall admit at least 25% of students from disadvantaged and economically weakergroups.3. The Central Government and the State Government would have concurrentresponsibilities for providing funds for carrying out the provisions of the Act. For thesame, the Central Government should provide Grant-In-Aid revenues to the Stategovernments in consultation with them. The State Government to be responsible toprovide funds for implementation of the provisions of the Act. (Emphasis supplied)4. The ‘appropriate government’ and the ‘local authority’ to providecompulsory education to the children.5. It shall be the duty of every parent or guardian to admit or cause to be admitted hisor her child or ward, as the case may be, to an elementary education inthe neighbourhood school.

6. The National Commission for Protection of Child Rights or, as the case may be, theState Commission for Protection of Child Rights constituted under section 17, of theCommissions for Protection of Child Rights Act, 2005 (4 of 2006), shall, in addition tothe functions assigned to them under that Act, also perform the following functions,namely -(a) examine and review the safeguards for rights provided by or under this Act andrecommend measures for their effective implementation;(b) inquire into complaints relating to child’s right to free and compulsory education;and(c) take necessary steps as provided under sections 15 and 24 of the saidCommissions for Protection of Child Rights Act.Notwithstanding anything contained in the above section, any person having anygrievance relating to the right of a child under this Act may make a written complaint tothe local authority having jurisdiction. Any person aggrieved by the decision of the localauthority may prefer an appeal to the State Commission for Protection of Child Rights orthe authority prescribed under sub-section (3) of section 31, as the case may be.ANALYSIS1. Shared and concurrent responsibilities of the State Government and thePanchayats:

Both the State Government and the local authority have the duty to provide free andcompulsory elementary education. Sharing of this duty may lead to neither Governmentbeing held accountable. From the perspective of federalism, the Act states that thoseschools established by the State Government would be under the authority of the Statewhile those established by the centre, would be under the authority of theCentral Government. Further, the Panchayats have the duty to provide free education atthe local level. However, as past experience has shown with NREGA, as also the NRHM,this only results in vagueness of demarcation of responsibilities among the variousstakeholders.This is because while devolution of authority to the local Panchayats isessential for ensuring that the local needs of education are comprehensively met, at thesame time, the mechanism as structured at present does not adequately integrateitself with the PRIs. For panchayath,to make it possible, it must have fiannce at itsdisposal. However, there is no mechanism for Panchayat to get funds from the State.Thus it becomes that the local panchayats have no real authority to implement andmonitor the provisions of the Act in the local community.2. FInancial Deficits

Even with respect to the State Government, whose functions are co-terminus withthat of the local Panchayats, there is a joint responsibility between the State

Governments and the Centre for providing the financial resources. The CentralGovernment has to give the grant-in-aid to the states, but ultimately no definite formulasharing plan has been provided under the Act itself. Although the State Government canask the Finance Commission for the additional expenditure, however, the same is a veryweak provision to ensure adequate funds for the State Governments to implement theprovisions of the Act. Ultimately, without adequate financial guarantee to implement theAct even at the state level, the Centre continues to exercise strong influence over theState Governments, thereby limiting the freedom of the same in ensuring universaleducation.3. Redressal MechanismThird, the mechanism provided for implementing the Act is also ambiguous. As thingsstand at present, there seems to be a blatant vagueness on whose ultimateresponsibility does enforcing the right to education vest. The Act provides for redressalof complaints by devolving the powers to the National Commission for Protection ofChild Rights or, as the case may be, the State Commission for Protection of Child Rightsconstituted under section 17, of the Commissions for Protection of Child Rights Act.However, as is common knowledge even five years after the enactment of the ChildRights Protection Act, every state does not have a state commission set up. Further,without prejudice, the Act also confers the same powers upon the Panchayats withoutproviding for an appropriate enforcement structure. In the present context under theAct, the state is the local authority. If the children themselves are considered incapableof enforcing their right, and thus require either the parent/the guardian to representthem, how will they be in a position to effectively pursue complaints against violationsof their rights in a multiple system of distribution of responsibility? Should it not be thatsince the rights of the child reach beyond the legal system, and refer to all the publicauthorities, and since macro-economic and fiscal procedures can jeopardize theimplementation of these public policies, should there not be a more simple redressalmechanism in place where the child would have the right to enforce his basic humanright? Can this not be done through the adoption of a single and comprehensivemechanisms wherein there is no overlapping of different government (centre, state andpanchayat), and the public institutions (both private and public schools), each with aspecific agenda and a limited responsibility?

From the perspective of Centre-State relations, the problem with ensuring elementaryeducation lies with the fact that since the issue of education is essentially the case ofpolicy and programme decentralization, it becomes even more urgent to understand themode of shared authority between the three tiers of the government. At present, theeducation models in place are such that the states depend excessively upon the centrefor finance, and also are required to contribute certain amount of their financialresources in the scheme of “shared financial responsibility”. As a result, even if the statehas been given the entire responsibility to set up neighborhood schools, provide theentire infrastructure for training the teachers, school buildings, make the appointments,

ensure the enforcement of elementary and compulsory education for all the children,but not the financial means, thereby resulting in excessive concentration of power in thecentre, any noble intention of providing the citizens with free and compulsoryeducation gets undermined. Further, even where there is an attempt to decentralizeeducation by making it the responsibility of the local Panchayats to provide forcompulsory education at the grassroots level, there is no prescribed fiscal formula fordevolution of resources by the state to the Panchayat, and there is an overlapping offunctions between the state and the Panchayat, with no clear demarcation ofresponsibilities . Therefore, at present the manner in which the federal powers arebeing shared may result in the alienation of one of the tiers of the government vis-à-visthe others. As a result, it might so happen that there would be an imbalance of powercreated among the three tiers of the government, thereby resulting in unaccountabilityto the child. Thus, it is time to respond to these questions to realize the inherent right offree and compulsory education.Commission recommneddedd that since the Education falls under the ConcurrentList, tthe Centre, amy in consulatation with the States, come up with an UniversalAccreditation System and Standard Setting body with participation from Centre,State nd private bodies.

JUSTICIABILITY OF DPSPSocial and economic justice is one of the basic objectives of the COnstitution of India.Concept of social justice consists of diverse principles essential for the orderly growthand development of personality of every citizen. The object of social justice is to bringeconomic equality, provide a decent living and to safeguard the interest of the weakersection og the society. --- Lingappa v. State of Mh 1985Economic justice embodies the idea of making equality of status meaningful and lifeworth living at its best removing inequality of opportunity and staus social, economicand political. -- Dalmia Cements..Social Justice and economic empowerment are FR in CESC v. SC BOSE - 97 SCThe social justice scenario is to be investigated in the context of two streams ofentitlements: (a) sustainable livelihood, which means access to adequate means ofliving, such as shelter, clothing, food, access to developmental means, employment,education, health, and resources; (b) social and political participation, which is built onthe guarantee of fundamental rights, and promotion and empowerment of the right toparticipation in the government, and access to all available means of justice, and on thebasis of which “justice as a political programme” becomes a viable reality.

SOCIAL JUSTICE - M. NAGARAJ v. UNION OF INDIASocial justice is one of the sub-divisions of the concept of justice. It is concerned with thedistribution of benefits and burdens throughout a society as it results from socialinstitutions - property systems, public organisations etc. The problem is - what shouldbe the basis of distribution? Writers like Raphael, Mill and Hume define ‘social justice’ interms of rights. Other writers like Hayek and Spencer define ‘social justice’ in terms ofdeserts. Socialist writers define ‘social justice’ in terms of need. Therefore, there arethree criteria to judge the basis of distribution, namely, rights, deserts or need.These three criteria can be put under two concepts of equality - “formal equality” and“proportional equality”. “Formal equality” means that law treats everyone equal anddoes not favour anyone either because he belongs to the advantaged section of thesociety or to the disadvantaged section of the society. Concept of “proportional equality”expects the States to take affirmative action in favour of disadvantaged sections of thesociety within the framework of liberal democracy. Under the Indian Constitution, whilebasic liberties are guaranteed and individual initiative is encouraged, the State has gotthe role of ensuring that no class prospers at the cost of other class and no personsuffers because of drawbacks which is not his but social.”The Constitution has set the goals of welfare State .WELFARE STATE:Welfare State provides for a large number of social services, like public medical services,national health and unemployment insurance, widows and orphans pensions, old agepensions, public assistance, subsidizing house- building, the control of housing andsupervision of town planning etc. All these are altogether independent of what had beendone earlier, namely, factory legislation, Workmen’s Compensation Acts, legislationrestricting the employment of children under a certain age etc. This enlarged concept ofsocial, economic and political justice enables us to make a natural transition to theDirective Principles which have been described as the manifesto of a Welfare State.Part IV endorces socio economic right of the ciizensArt 38 - promote welfare of the peopleArt 39 - right to livelihood, health and strength of workers, mena womena dnchidren oftender age.Art 41 - Social security

Art 43 - Better living conditions for workers, full enjoyment of leisure and socio culturalopportunities-cottage industries etc.Art 47 - state to raise the standards of living and improve public health.Art 43 A - participation of worjers in the management of industriesArt 46 - Obligation upon the State to promote educational and ecoomic interst ofScheduled Caste, ST and other weaker sections.

CASESAK Thakur v. UoI - 2008The Directive Principles of State Policy are made non-justiciable for the reason that theimplementation of many of these rights would depend on the financial capability of theState. Non-justiciable clause was provided for the reason that an infant State shall not bemade accountable immediately for not fulfilling these obligations. Merely because theDirective Principles are non-justiciable by the judicial process does not mean that theyare of subordinate importance.Champakam Dorairajan CaseThe Directive Principles have to conform to and run subsidiary to the Chapter ofFundamental Rights.”This was held not a proper view.Minerva Mills - 1981The Fundamental Rights are no doubt important and valuable in a democracy, butthere can be no real democracy without social and economic justice to the common manand to create socio-economic conditions in which there can be social and economic justiceto every one, is the theme of the Directive Principles. It is the Directive Principles whichnourish the roots of our democracy, provide strength and vigour to it and attempt to makeit a real participatory democracy which does not remain merely a political democracywith Fundamental Rights available to all irrespective of their power, position or wealth.The dynamic provisions of the Directive Principles fertilise the static provisions of theFundamental Rights. The object of the Fundamental Rights is to protect individual liberty,but can individual liberty be considered in isolation from the socio-economic structure inwhich it is to operate. There is a real connection between individual liberty and the shapeand form of the social and economic structure of the society. Can there be anyindividual liberty at all for the large masses of people who are suffering from want andprivation and who are cheated out of their individual rights by the exploitative economic

system? Would their individual liberty not come in conflict with the liberty of the sociallyand economically more powerful class and in the process, get mutilated or destroyed? It isaxiomatic that the real controversies in the present day society are not between power andfreedom but between one form of liberty and another. Under the present socio- economicsystem, it is the liberty of the few which is in conflict with the liberty of the many. TheDirective Principles therefore, impose an obligation on the State to take positive action forcreating socioeconomic conditions in which there will be an egalitarian social order withsocial and economic justice to all, so that individual liberty will become a cherished valueand the dignity of the individual a living reality, not only for a few privileged persons butfor the entire people of the country. It will thus be seen that the Directive Principles enjoy avery high place in the constitutional scheme and it is only in the framework of thesocioeconomic structure envisaged in the Directive Principles that the Fundamental Rightsare intended to operate, for it is only then they can become meaningful and significant forthe millions of our poor and deprived people who do not have been the bare necessities oflife and who are living below the poverty level.”

The above discussion entails that Part III and Part IV of the constitution comprises ofthe entire jurisprudence on what comprises social, economic and political justice, thatis, what are the rights of the citizens of India, and what are the obligations on the part ofthe State in that behalf. Overriding the principle of subsidiarity of the DirectivePrinciples of State Policy, the principles today constitute an integral part of governancein our country, and the rights so enumerated in that Part have to be given the samestatus as that of Fundamental Rights.Thus, to sum up:

1. The basic constitutional scheme for realization of socio-economic goal is laid in PartsIII and IV of the Constitution.2. Entrenched and Justiciable Fundamental Rights enshrined in Part IIIprovide Constitutional guarantee of these basic human rights as being inalienable andnot subject to political vicissitudes.3. Directives for realization and effectuation of Part III are contained in Part IV thatpermeates the whole ethos of Part III.4. Synthesis and integration of Fundamental rights with Directive Principles in thejudicial process of constitutionalising social and economic rights has been crucial ingiving impetus to the pace of realization of the Directive Principles not only as a meansto effectuate Fundamental Rights but also as a source of law for a Welfare State.

STATE ACCOUNTABILITY FOR THE IMPLEMENTATION OF DIIRECTIVE PRINCIPLES

The key to good governance in a federal system is to ensure proper devolution on thebsais of relevant criteria.WHAT ARE VARIOUS STRUCTURAL CNSTAINTS IN THE DELIVERY OF PUBLICSERVICES:

1. Extreme fragmentation in the Policy Making structure.Formulation of policy in one area fails to take note of its effect in other socialsectors. Health policy fails to take into account - Education, Housing, employmentfactor etc.This leds to non alignment of the policies across alll common issues.Lack of integrated approach on cllosely related subjects has been pointed byARC as responsible for por results in governance.2,. Excessive overlap between POlicy Making, Programme formulation and

Implementation.Thua it leads to focusising on operational convenience rather than people needsand expectations.3. there is inadequate non governmetal inpuits and informed debate

these problems have been identified as specfic to the Idnian model of federalismand thus a look into the various model in other fderations will help out seekreforms in Indian system

UNILATERAL FEDERALISMIn scenarios in which there is “interdependence and the relationship is hierarchical, therelationship is described as unilateral federalism” in which the “federal government, byand large directs provincial policy, usually through conditional funding.Thus, the model’s major weakness is that it infringes upon jurisdictional autonomy.On the other hand, the model is considered the most effective for national programsand associated benefits due to minimum overlap between policies, and advantages ofeconomies of scale. This is demonstrated well by the national medical and hospital carein Canada.

COLLABORATIVE FEDERALISM

In scenarios in which there is “interdependence and the relationship is non-hierarchical,the relationship is described as collaborative federalism.” Here, “the federal andprovincial governments workcollaboratively to attain policy goals, and there is no coercion on part of thefederal government.”The major strength of this model is that it allows for national programs whileprotecting jurisdictional autonomy. On the other hand, its weaknesses are that themodel has the potential for excluding the public, requires an effective dispute resolutionmechanism and blurs accountability.Canadian and Austalian model

Features:Coordination: Involving collective action to address such problems asdrought/water management that cross state borders. States are also invited toparticipate in negotiations of international treaties in cases where State interests will beparticularly affectedHarmonisation: Efforts are made to ensure that State and Commonwealth legislation donot clash and, possibly, force the Commonwealth to challenge the State’slegislation under Section 109 of the Australian Constitution, which stipulates thatwhen Commonwealth and State legislation conflict “the Commonwealth shall prevail”;Financial Assistance: Specifically the use of specific purpose payments, can be used tofurther collaboration between the States, Territories and Commonwealth on issues ofmutual concern or be exploited by the Commonwealth to further its own policy agenda;Ministerial Councils: Such as the Council of Australian Governments (COAG) and theGene Technology Ministerial Council constitute collaborative arrangementsbetween the States, Territories and Commonwealth to exchange information, discusspolicy formulation and coordination, and establish protocols and regulatoryframeworks in different policy areas; and• Intergovernmental Agreements: Agreements that formalise arrangementsbetween the Commonwealth and State ministers and set out the objectives, durationand proceduresCOOPERATIVE FEDERALISM

It describes a system of federalism not where there is necessarily “cooperation” in theordinary English sense of the word, but rather, where there needs to be cooperationbetween levels of government to get things done in the system. Germany is an exampleof a “cooperative” system of federalism. In Germany, what you find is a real division oflabour between the Federal Government and the Länder. The Federal Government doesnot deliver health services but does provide the regulatory framework and policysettings within which the Länder and the private sector provide health care. Thisincludes issues such as insurance, quality control, funding and national priorities interms of health. Responsibility really is split but it tends to be a division of labourbetween the setting of regulatory and policy frameworks (Federal) and the delivery ofservices and provision of infrastructure (Länder /Gemeinde).”

In “cooperative federalism” it is not a case of everyone being responsible for everything.In Western systems of cooperative federalism, it is still important to define the roles andresponsibilities of the different tiers of government. So, for example, in the case ofGerman federalism, the Länder are more or less responsible for the delivery of servicesand theFederal government is responsible for setting out the policy and regulatoryframeworks. Institutional design here is critical. The Constitution says that only theLänder can carryout administration in areas where they have jurisdiction. The Constitution also sets up asystem where the Länder have to agree to spending requirements before they can bepassed by the National Parliament. The Bundesrat, the “federal house” of the GermanParliament, is composed of the governments of all the Länder. The Bundesrat systemmeans that the Länder have a real veto power over policies and programs that affecttheir priorities and spending.The most significant weakness of cooperative federalism as seen in the case of Germanyis that with reunification and the increasing globalisation of the economy in 1980' s and1990' s, the interests of the Federal Government and the Länder had become so“entangled” and “enmeshed” with one another that it was impossible to get anythingdecided or determined. Thus, the much needed reforms in healthcare, pension,

education and industrial relations could not be achieved. The Germans are currentlyengaged in a series of difficult attempts to reform their system to “disentangle” the rolesand responsibilities of the Federal Government and the Länder so that each has greaterautonomy over certain areas of activity. (“Entflechtung”) They are, in essence,attempting to shift the German system more in the direction of a “coordinate” system offederalism like Canada or the US.”PUBLIC POLICY DISPUTE RESOLUTION MECHANISMTogether with the need for consultation, there is also a need to have a public policydispute resolution mechanism. Such system appreciates the nexus between policyformulation and delibertive democracy.It creates a situation where Govt gives space for the marginalised and others equally.In the context of India, with the implementation, monitoring, redressal of publicservices being under the eye of public debate, and with the increase in the number ofpublic-private partnerships, the consultative process further demands such apublic policy forum where the professionals involved are mediators who are also policyspecialists. This forum should be based upon the “collaborative governance model” as isbeing advocated in the other countries.The three reasons that are attributed for the emergence of collaborative governance inthe USA are:i) Legal fragmentation and multi-jurisdictional problem-solving are the two mostimportant sources or symptoms of institutional complexity and interdependence.ii) The highly adversarial nature of many agency decision-making processes has led to asearch for more collaborative forms of governance.iii) The highly disputed nature of public decision-making have led to a search for moredirect modes of legitimating public decisions. The shift has broadly been from indirectmodes of legitimation through forms of representative democracy to more direct andparticipatory democracy.”

The Cmmission is in favour of Public pOlicy - Colaborative Governance Model as itwould be innovative way of ensuring that PP resolutions are carried on with theinclusive participation of the citizenry, thereby enhancing the democratic process.

Increasing Transparency and Accountability Through Social Audit LegislationThe major concern haunting Indian schemes are its implementation, monitoring andcorruption.Inadeautae funds has often been raised as n issue in India, however, inefficieny indelivery mechanism if dealt with effectively, then this burden can of placing reason oninadeqaucy will not find any reasoning.In democracy people have the right to ascertain the enforcement of the delivery mechby dircting the govt officials to do the needful.Social audit is indeed the tool to claim that right.

Social Audit has found its place in the MNREG Act.- the first of its kind.NRGEA Guidellines has a chapter on Social Audit.

Social Audit is a continous ongoing processs through which the stakeholders and theintended beneficiaries of the project are involved at every stage :- From planning andimplementation to monitoring and evaluation.It is conducted Jointly by people and Govt. who are the inended beneficiaries of theactivity benig audited..BENEFIT OVER GOVT AUDITIt actually guarantees that the decisionmaking process is infomed by viiews of thestakeholders and beneficiaries and thus takes into account the loal conditionsapprorpriate for designing and implementation of the policies thereby effectively servigthe public interst.This lets The People to remain VIGILANT.

It is beyond the scope of information.It is a new perspective on positive participation and connotes active liberty.Thus it exhibits some elements of direct democracy s sharing of sovereign's power togovern.

Capacity of people to articipate is coextensive with syates power to makedecisions.

Social Audit invlovs two main aspects of implementation:1. Participation in Planning and Implementation2. Vigilance of the ongoing works.

NREGA Guidelines contemplates 11 Stage proces of implementation fromregistring families to Payment of allowance and social audit, which involvespeople participation.

HowThe 11th Stage involves Social Audit Forum - Here info will be read out publicly

and people can question Officer in charge directly , seek and obtain info , verfyfinancial expenditure , examine the entitilements, discuss priorities in choicesmade, and evaluate citicallly.

It also strengthens RTI Sec 4 which calls for proactive discloosure even withoutrequest being made by public.

ELEMENTS/NORMS IN SOCIAL AUDIT LEGISLATION AS ESSENTIAL TO ANY SOCIALWELFARE LEGISLATION

Transparency - In admin, decision making, with oligation on govt to give people fullaccess to info.Participation - An entitilement for all the affected persons to participate in the decisonmaking process.Consulatation and COnsent - In those rare cases, where options are pre determined outof necessity, the right of affected persons to giv informed consent as appropriate.

Accountability - The responsibility to anser questions of action and inaction.Redressal - Reporting to the people of the outcomes of social audit.To achieve the critical mass of social audit norms in any piece of legislation someinnovations to the substantive as well as procedural part of law should be put in place.Right to participate during the planning stage is a substantive offshoot of the socialaudit process. Importantly in a Social Audit Process procedural innovations take thecenter stage as procedure is the most practical and salient unit of legal rules havingcapacity to undermine the entire process, thereby, Much of work which goes in makinga social audit compatible law has its nexus with democratizing the everyday procedureslaid down by the law. The experience of the NREGA implementation has taught us thatsocial audit procedures coupled with some substantive underpinning can ensure betterdelivery of entitlement. It helps people to own up the Act. They guide, monitor andevaluate the administration of the Act.Social audit has power to change the power equation exisitng between the decisionmaker and beneficary. This is beacuse participation of people brings inn some amountof accountability, thereby diluting the traditional view of decision aer being at centre ofpower.Framework of social audt does not envisage hierarchy structure in terms of creatingadditional tier for alloting responsbility and acoounablity.As much as the audit process brings with it rights to the people, the same is alsoaccompanied by certain duties on their behalf. This duty is apparent : the duty to remainvigilant and the burden to undertake the social audit. Since the role of the governmentas a facilitator is well-defined, to that extent the government becomes accountable. But,beyond that there is really no onus of accountability upon the government save thesocial audit process. Therefore the burden of taking up the social audit process seriouslyis on people only. Obviously to create such environment where people feel motivated tocarry out the role falls within the domain of facilitator function of the government.Responsibility corresponding to government’s facilitator role should find a statutorycover. NREGA is a pioneering Act in that regard. Social audit demands continuousparticipation and involvement in vigilance from people. NREGA is the first Act in thehistory of independent India to have given that kind of space and role to people. Butexperience with the Act has shown that people’s involvement has not really percolateddown.

This issue obviously questions the very foundation of social audit process itself. Firstly,we need to identify what triggers public involvement and whether Social Audit Normswill be able to energize people sufficiently. What should be the role of government inthis regard? If we envisage government merely as a facilitator and not beyond that willpublic action necessary to fulfill the role prescribed by the Social Audit Norms happenon its own? More than that, characterization of public action in the context of socialaudit process is an intriguing question.

ANDRA PRADESH CASE STUDY AND SUCCESS IN IMPLEMENTATION

Andhra Pradesh has been one of the most successful states in implementing NREGA.The accountability and transparency measures enshrined in the NREGA have beenutilized by the state of Andhra Pradesh by undertaking social audits for all NREGAworks across the state. The Andhra experience is unique because it marks the first timethat the government has proactively taken steps to open itself up to scrutiny by citizens.The first step in this direction was to computerize the entire implementation process ofNREGA. All the data is public and available for scrutiny. The social audit process isfacilitated by the Rural Development Department through the Strategy andPerformance Innovation Unit (SPIU) that provides the organizational backbone to theprocess. The SPIU is headed by a director, who is a drawn from the state civil servicecadre. The presence of civil society ensures that there is a high degree of autonomy andobjectivity to the exercise. It is one of the most important checks and balances that havebeen built in to the process. The director SPIU together with the social developmentspecialist is responsible for taking all policy and management decisions related to theconduct of Social Audits on NREGA. The State Resource Persons (SRPs) are responsiblefor managing the day to day aspects of conducting the social audit. This includesdrawing up the social audit schedule, training district level resource persons, liasoningwith district level officials and ensuring follow-up to social audit findings. The DistrictResource Persons (DRPs) are responsible for managing the actual conduct of the socialaudit. This includes identifying the village social auditors, training the village socialauditors along with state resource persons, filing RTI applications for accessinggovernment documents and interacting with the mandal level officials to organizelogistics and the public hearings. The social audit itself is conducted by volunteers fromthe villages.

ISSUES WITH IMPLEMENTATION OF MNREGA

1. There is a lack of clarity about the various actors’ basic responsibilities under theNREGA. The Act directs each State Government to notify an “employment guaranteescheme” to give effect to the work guarantee. The combination of a Central Act withState-specific schemes calls for rigorous coordination between Central and StateGovernment, however, the same does not happen. In this regard, it has been reportedthat even the basic operational guidelines so issued by the Central Government onguaranteeing minimum entitlements has not yet been fulfilled.2. There is a need to strengthen the administrative structure of the Act forimplementation of the Act which includes the centre, state, village, block and districtlevels. There is a need to create awareness of the act and capacity development amongthe key stakeholders such as rural households, Panchayati Raj Institutions (PRIs), usergroups, local communities, NGOs and local government officials. The monitoring aneevaluation emch at Cnetre, State and local level needs to be stregthened to ensureeffective implementation of NREGA.Specifically, the division between centre and states in financial, implementation andmonitoring processes poses challenges in the present federal structure. For example, alarge part of the expenditure of NREGA is covered by the Central Government but thecrucial penalising provision of unemployment allowance is burdened on the states.These become crucial in the context of states where the political alignment ofgovernments at central and state level is not on friendly terms to each other.3. It is only recently that the The Ministry of Rural Development through a PressRelease has formulated the guidelines for setting up the District level ombudsman asthe redressal mechanism and the formation of an independent monitoring mechanismcomprising of prominent citizens. But even now, the State governments are yet to setup the Ombudsman. Kerala has the Ombudsman functioning for the last several years.PUBLIC PRIVATE PARTNERSHIP FOR BETTER DELIVERY OF SERVICESCONCERNS

1. Delhi Jal Board Controversy- WB had prssurised the Gvt to give the contact to aspecific agency and that the terms of contract had given immense profits to theprivate agency. In this context, the misuse of power must be taken care of. Thecontract was ultimately withdrawn.2. Preferential selection of private companies and the imposition of onerous terms andconditions in the contract upon the Government threatens sovereignty and leads tocorruption.

3. Various regulatory agencies set up by state legislations in different social sectors areunable to work independently, and are captured by private interest.Moreover, there exists a lack of regulation in health and education sector as

well where there is private sector flourishing.

It must be taken care that while a sector is being pushed to private players,sufficient safeguards needs to be in place.

However, PPP can be considered as an effective medium.

PPP is different from private players in the sector.

GoI: "PPPs are different from privatization. While PPPs involve private management ofpublic service through a long-term contract between an operator and a public authority,privatization involves outright sale of a public service or facility to the private sector.”

Benefits of Private sector participationMay help in introducing innovative ideas,generating financial resources;introducing corporate management practices;improving service efficiency andaccountability to users.However, larger question relating to accountability, Human rights, , public good,democractic accountability have raised eyebrows.Different answer wrt that:1. The private sphere has grown over time in size in areas where public ector wwasnot providing sufficeint services.The governments should evolve mechanisms through which such organizationscan actively participate in formulation of policies and implementation andmobitoring/supervision of projects/programmes.This will ensure utilization of their financial resources, engagement of their humanresource expertise and their improved involvement in government policies/projects/programmes.A uniform Policy needs to be developed by Union in such cases, instead of letting Statesand Union form diverse policies and leading to confusion and reliability.Selction of Non state actors should be done in a fair, tansparent and non compromisingmanner.

~So State have also said that they need to nbe included under the head State inPart IV and Part IIIAlready consistent with the blurring of the public-private divide, the Supreme Court ofIndia is adjudicating on such issues. In such cases, the issue before the court is whetherthe term “other authorities” can be expanded to include the private entities. At present,the definition of the state does not include private entities performing public functions.Thus, the citizens would have no right to claim against such an entity, performing publicfunction, for breach of its obligations.~There needs to have sufficient safeguard in the system to check corruption andicresing capitalistic approach of the State so as to please the private players.~The private players must be boound by strict riules.~Make social audit so as to make them accountable to citizens.~Strengthen the PRIsSince PPPs are to be implemented in every state in different fields like water,infrastructure, education and health, which fall under the State list, participation at thegrass root level through decentralization would enhance accountability of the localgovernment and result in participation of the disadvantaged in the decision-makingprocess. This would be possible only by the effective implementation of the73 rd Constitutional Amendment. Further, decentralization would also enable to dealwith any attempt to capture the state regulatory authority by special interest groups,thereby minimizing corruption in the privatization process.The “People’s Campaign for Decentralized Planning” as developed in Kerala indeedresulted in the decentralization of administration, fiscal powers and political powers tothe local self-governing institutions. This in turn led to enhanced economicdevelopment and increased public participation that involved the minority groups inthe decision-making process.

~Have a regulatory mechanism for monitorting and evaluating.~Provide for sufficient checks and balancces witin hthe MOURegulation may be broadly understood as an effort by the state ‘to address social risk,market failure or equity concerns through rulebased direction of social and individualaction

The Planning Commission has emphasized upon the need for having an independentregulator as the facilitator between the market/private player on one hand, and thethree branches of the state on the other.It is for the purpose of preventing overlapping of regulations, creating a simpleregulatory regime, and ensuring accountability to the people through supervision of thestate and the private sectors.This can result in transparency adn accountabiity in the negotiation of contracts.The regulator should incorporate processes and systems whereby thestakeholders would have access to information, would be able to makerepresentations and have full participatory and process rights. This would also be aneffective safeguard against capture of regulatory system by the special interest groups.The important aspects in the institutional framework for regulatory commissions wouldbe their role and functions,their relationships with the executive and legislature, and their interface with themarkets and the people.the provisions of the Administrative Procedure Act, 1946(APA) to public participationin the contracting out process could be extended to the regulatory regime so set up inIndia.The work of Alfred Aman draws upon exploring how administrative law that providesfor publicity, opportunities for participation, and the inclusion of the dissentingcommunity groups , can further regulatory efficiency and mitigate the democracydeficit, especially when it is the direct delivery of services to vulnerable populationsthat has been privatized. He thus advocates allowing the broader public to play the rolein the design of the contract themselves.The reason underlying the same is that unlike the agencies, the private actors at presentare not bound by the provisions of the Administrative Procedure Act. Thus, they do notface judicial review of their policy decisions, even though under government contractsthey make discretionary decisions affecting the course of public action and allocation ofpublic resources.CONCLUSIONS AND RECOMMENDATIONS1. Social Justice - as essential to the COnstitutional priniplesIt is the general impression that successive Governments both at the Centre and in theStates have not been successful in the implementation of the Directives which form thecore obligations of the State vis-àvis social justice and welfare. It is time to recognize itas the joint and separate responsibility of all three levels of government and demandtime-bound implementation of the obligations thereunder. Let the State and CentralGovernments acknowledge the obligations and introduce it in Annual BudgetStatements.

2. Need for assessment of State Performance in respect of DP

There has not been any independent assessment of the performance ofState and Central Governments in respect of implementation of Directive Principleswhich are fundamental for governance. The Plan implementation assessment isinadequate for the purpose. The Human Development Reports being brought out bysome states tend to give an incomplete picture of the situation and the UNDP report onthe subject is equally not reflective of the total picture.3. Review of DP periodicallyGivem the growth of knowledge and technology in recent times, it has becomenecessary to rview DPSP fo further development.4. Shared Responsbility and State Accountability

Depending on different models of governance, the various federals have developeddifferent systems such as:- (a) unilateral federalism in which the federal governmentdirects provincial policy usually through conditional funding; (b) collaborativefederalism in which both governments work collaboratively to attain policy goals and ischaracterized by the absence of coercion from the federal government; and (c) co-operative federalism where roles and responsibilities of different tiers of governmentare well defined which necessitates co-operation from all levels of government. Indianeeds to move towards collaborative federalism model.5. PPP for better delivery of services

Draft a NP to bring in private players for acive participation in delivery mech.Checks and Balances in MoUNationallegisation specifying penalities for breach if dutiesHold social auditAmedn Art 12Structure a regulatory mech consisting of an ndependent regulator who would

have teh auth to over see all the state regulatory agencies in various sectors.Setting a Accreidtation system forensuring credibility of non state org.Stregnteh PRi for effective cooridnaton and consultataion.

6. Public Policy Dispute Resolution MEchanism

CENTRALLY SPONSORED SCHEMES AND ISSUE ON TRANSFERS

1. Basically probelmatic in fiscal transfers

They tend to make a uniform prescription for all situations withoutnadequate regardto local and state specificaities and suffer from lack of flexibility.Schemes are straight jacketed without scope for innovations.WHAT COULD BE DONE?

Need to make them mre attuned to local needs y convertting them to untiedfunds for each sector for each State for specified and need based action plansprepared by the State and sanctioned by the Centre if they fall within the broadparameters of guidelines issued by the CEntre.This will help State formulate rojects in action plan which fulfill the aspirations ofthe people and complete gaps in thats ector.

2. CSS HASS DILTED THE FISCAL TRANSFER SCHEMECSS acts asn intrusion into the State Lists by the Centre. This is beyond the othertransfer of subject frim State to Consurret list - Eg EducationCSS resource is TAX.Over the years CEntrall share has fallen and GiA has increased from 41 (11980) to 50%in 2006. Resource flow from CEntre to State - 7 % of GDPCompared to this, the quantum of resources going directly to districts and otherimplementing agencies is very high at 1.22 per cent of GDP, more than any other headof grants or transfers, amounting to 37.5 per cent of tax devolution to the states in2006-07.CSS has led to dilution of fiscal system.Normal assistance for state plans, which is devolved according to the Gadgilformula, is less than 48 per cent of the total state plan size.Under the present regime, grants have become primarily purpose-specific or tied with ahost of conditionalities imposed by different central ministries, reducing the States andPanchayats to mere agencies of the central ministries.In some cases, State burden is being increased unilaterally.Eg: SSA - initially State share 25% . Later 50%.

The State Governments are not consulted at the stage of conception, design and rulemaking. States are therefore compelled to commit resources for straight-jacketedschemes that do not reflect their priorities or can be effectively implemented, as theyare rigid and out of sync with local realities. Such specificpurpose transfers have tended

to reduce the states to mere implementing agencies with rigid guidelines that denylocation-specificity and local initiative.Moreover the conditionalities encroach on the autonomy of the States.A case in point is the JNNURM, which requires the State to reduce Stamp Duty ratesto at most 5 per cent, a rate which can only be prescribed by the Legislative Assembly. --This is intrusion innto the legislative shere y the Executive.Since 2002-03, a considerable percentage of such transfers are sent directly toautonomous agencies bypassing the States, despite the fact that in many CSSs the statestoo are required to make matching contributions. Local officials tend to ignore the StateGovernment on these Schemes since they have to coordinate directly with New DelhiIt is imp to conduit transfer strictly through States.The Centre and states can work out an accountable and speedy mechanism forfund transfer to district, PRI and other agencies, the federal character of our fiscaland political economy should not be undermined.The State needs to intermediate between the local agecies and central authoritses.Suf=ggestionsAn appropriate periodic joint Centre-State review may be worked out.The mere fact that the Union Government is in a position to supply a greater share offunds for projects pertaining to social and economic development oughtnot to give it a right to dictate terms to States on matters that otherwise fall within theconstitutional domain of States.It is felt that the Union Government may restrict itself, at the most, to outlining broadguidelines with respect to the ultimate objective of the programme.The design and implementation of the specific programmes within the State must beleft to the executive machinery of the concerned State.Inorder to stop misuse of untied funds, the conditionalties can be kept as effectivesafeguard.

RECOMMENDATIONS1. it is desired that the States should have control on the design and execution of theschemes.2. The conditionalities tend to encroach legislative autonomy of States; more so whentransfers are made to local bodies and parastatals.3. CSS need not be done away but a mechanism needs to be devolved.4. Periodic review jintly by Centre and State to ensure coordination5.. provide more untied funds. Some flexinility needs to be provided to accomodatelocation specific problems and challenges. Centre needs to bestow gretaer auth andtrust in States and allow democractic and Constitutional processes to ensure greteracciuntabilit

GOOD GOVERNANCE AND DELIVERY OF PUBLIC SERVICESTwo important Constitutional Goals :- Ensuring good Governance & Acheiving Socialand Economic JusticeTo achieve them, 3 approaches are sort:-1. EMPOWERING CITIZENS WITH A CORRUPTION FREE CONSTITUTIONAL RIGHT2. GREATER DECENTRALISATION3. PREPARATION OF SOCIAL AUDITDEFIING Good GovernanceGovernance has been defined in terms of exercising power for economic and socialdevelopment. It is not easy to outline an exhaustive list of ingredients for the term ‘goodgovernance’, but it is acknowledged that at the very least good governance is a term thatrelates to a government that is, ‘among other things, democratic, responsive,accountable and transparent, and which respects and fosters human rights and the ruleof law’.UN:- It is only through Good Governance that one can find solution to Poverty, inequitand insecurity.

CORRUPTION AND GOOD GOVERNANCE

India has been ramked poorly in Corruption - Corruption perception Index ofTransparency International - 71 of 102 countries.Impacts Rule of LawAffects developmentAffects economic policiesAffects social policiesAffects eco growthAffects FDIInfra, health, education resources are divertedThe development process ought to be based upon principles of transparency ingovernance and accountability of the administration. However, due to corruption, thereis inefficiency and inequity in resource allocation. The state will not be able to fulfil itsmandate responsibly; nor is there any scope for achieving social and economicdevelopment.STRATEGYEmpowering cotizens with a corruption free government.Corruption can be inculdde under the ambit of HR discourse.Leads to mass victimisation;affects RoL, demicractic governanceConsidering corruption as HR violation will lead to efforts to contain it.This is because development of HR law is an essential aspect of IHRLaw andconstituoonal, legal and judicailly recognised rights. It has an international force behindand hence can be effectively dealt with. Through such enforcement, judicairy can actmore proactivelyDECENTRALISATION - TO IMPROVE PUBLIC DELIVERY SERVICESdecentralisation hs the power to act as a counter to the tendency towards cenrtalabsolutism by enabling power sharing and thereby providing for long term stability.Social and econmmic justice can be achieved thru grater decentralisation on relatedsubject matters.

GREATER ATTENTION ON TIMELY IMPLEMENTATION OF DPs.The effective enforcement of the Directive Principles of State Policy is theConstitutional strategy for promoting good governance and for deliveryof public services.No methodlogy as such.One metod could be :- States must be required to frame periodic guidelines on whatsteps they will be undertaking to perform their role for the achievement of theDirective Principles of State Policy. Certain obligations will necessarily require moreCentral involvement and others will require less, but the framing of periodic guidelineswill ensure that the issue of Directive Principles is not ignored simply because these arenot enforceable in a court of law.Periodic Social Audits must be conducted in each State to examine the degree to whichState is oerforming its obligations under the DPSP.Public Private partnership in Delivery of Public Services

What measures should be taken for the participation of the emergingprivate stakeholders in the scheme of governance for promoting the welfare ofthe people?A shift in accountability can give rise to certain objections-LEGALLY, :- who has standing to complain?who is a public auth?what all are justiciable?what is the procedure to be followed?Is judicail review possible to judge the authority?POLITICALLYNeed to find an appropriate framework federal in nature - for assuringharmonous CS relationsCurrently CS re;lation is badly affected - corruption, CSS, lack of funds, noncooperation by States etc are the reasons for bad erlations.Poor state of education.Poor health infraIn each of these concerns, runs a common thread - the impact of federalism on publicprovision in social policy. Does federalism inhibit public provision and retard thedevelopment of the welfare state in the first instance? How does federalism shape thepolicy design of social policies, once such policies have been adopted? Does federalismcreate obstacles to restructuring and retrenchment, just as it might have originally

inhibited social policy construction? Once social programs have been established, doesfederalism create obstacles to the restructuring of such programs and, as such, renderthe system impervious to certain types of policy change? These are the questions thatcome up again and again in the discourse on good governance.the question is ultimately one about the structure of cooperative federalism, that, raisesthree important questions: (1) What are the respective state and national interests inparticular policy domains, putting aside any potential constitutional impediments toorganizing state and federal activities either separately or jointly? (2) What types offunding arrangements promote responsible and accountable public spending? (3) Whatsort of regime of legal rights and responsibilities is likely to support the programmaticpurposes established either by state or federal legislation?

IDEAS FROM OTHER FED Esp CANADATwo types of considerations are relevant to knowing where on theindependence/interdependence continuum a program or policy may be. One is theextent to which there is joint federal-provincial decision-making, implementation orfunding. The other is the extent to which, despite the absence of joint federal-provincialactivity, the actions of one order of government may impact the other and influence itschoices. Where that influence requires the second order of government to make modestadjustments only to its program, the relationship is more independent thaninterdependent. Where the influence effectively “forces” important changes in thepriorities or structures of the second order of government, the relationship is moreinterdependent.DISENTANGLED FEDERALISMThere is no interdependance and no hieracrhy -in such case the relation is termedDISENTANLGED.Neither jurisdiction is de facto subordinate to the other. In a disentangled model offederalism there is very little interdependence between the two levels of government.Each level has a clearlydefined constitutional role, and each operates within “watertight” compartments.This form worked initially in Canaada Health Care sectr.because health care was a provincil domain factor.

Here, only the provinces, not thefederal government, may pass laws regarding the creation andadministration of hospitals and mental health facilities.In response to this, the courts have interpreted the provincialpower over hospitals in a very broad manner, extending provincial legislative authorityto almost all areas of health care delivery. This includes areas suchas health care insurance regulation, the distribution of prescription drugs, andthe training, licencing and terms of employment for health care professionals, such asdentists, doctors, and nurses. This judicial interpretation has resulted in provincialdominance in the area of health care, at least with respect to the power to create lawsconcerning how health care is delivered to the majority of Canadians.THE POSITVESIt gives jurisdictional autonomy and stregth for provincila experimentationwithout interfernce from the federal govt as each works independenty wthotinteraction.NEGATIVEsNo interaction and interdependence. cannot frame national policies.UNILATERAL FEDERALISMinterdependence and the relationship is hierarchical, the relationship is described asunilateral federalism. The federal government directs provincial policy, usually throughconditional funding.An instance of this model is the Canada Health Act, 1984 that included apenalty regime, under which the federal government would hold back funding to thoseprovinces that failed to meet any of the Act’s criteria. Immediately following the Act’sintroduction in 1984, the federal government announced it would be applying penaltiesto those provinces that permitted user fees and extra-billing (the federal governmentlater released the money it had held back, but only once the provinces had eliminatedthese practices). In the 1990s, the federal government applied the penalties on severaloccasions, mostly when provinces permitted the application of user fees in privatemedical clinics.NEGATIVEsinfringes autonomyPOSITIVEs

National policy and no overlap between policies, and economies of scale.COLLABORATIVE FEDERALISMthere is interdependence and the relationship is non-hierarchical, the relationship isdescribed as collaborative federalism. Here, the federal and provincial governmentswork collaboratively to attain policy goals, and there is no coercion on part of thefederal government.Definition:-“A governing arrangement where one or more public agencies directly engage non-statestakeholders in a collective decision-making process that is formal, consensus-oriented,anddeliberative and that aims to make or implement public policy or managepublic programs or assets.”a national collaborative governance that is meant to have an impact “on the ground”often needs to involve, not only the federal and provincial/territorial governments, andlocal governments, but also needs to include non-governmental structures – voluntarysector organizations, professional associations and the like - that are themselves sub-divided in national, provincial and local chapters. In other words, the multiple levels ofgovernment are paralleled by multiple levels in the non-governmental sector. Since thisis an area in which both the federal government and provincial/ territorial governmentshave a legitimate role, and where the involvement of civil society is needed to ensure“traction” at ground level, collaborative initiatives have become a way of “doingbusiness.”ISSUES IN THIS OMODELHow a number of diverse organizations,each independent within its own sphere, can manage to co-ordinate their actions inpursuit of a common goal.What is the initial impetus that brings themtogether, and the common bond that keeps them together?What structures,collaborative practices and leadership competencies do they use to achieve co-ordination and achieve meaningful results?An example is the Canadian Social Union Framework Agreement. The mainfeatures were the commitment to obtain provincial agreement before introducing newprograms and the agreement on a collaborative mechanism for settling disputes. Theprovinces and territories agreed to eliminate residency-based policies that constrained

access to social programs for migrants, and to use funds transferred from the federalgovernment for agreed upon purposes – which included health care policy.STRENGTHThe major strength of this model is that it allows for national programs whileprotecting jurisdictional autonomy.WEAKNESSOn the other hand, its weaknesses arethat the model has the potential for excluding the public, requires an effective disputeresolution mechanism and blurs accountabilty.PPP in delivery and Commission

it is necessary to adopt national measurement standards on performance. Looking atthe way public services are organized in other federal countries, the Commissionstrongly recommends the model of “collaborative federalism” in which there is inter-dependence but no hierarchy. The process from policy making to performanceassessment is morecollaborative without any coercion on the units from the federal government.The collaboration extends to non-State stakeholders and through the collective,transparent, rule-based decision-making processes public assets and services aremanaged with maximum efficiency and accountability.The key element in collaborative federalism is non-hierarchical, non-authoritarianform of decision-making involving governmental and non-governmental participantsworking toward a common objective within a legal framework. This Commission wouldrecommend such a model for the promotion of goodgovernance.

CONCLUSION AND RECOMMENDATIONS(1) Ensuring Efficiency and Accountability in Delivery of Public Services 7.7.01 Amongthe many strategies for ensuring efficiency and accountability inthe delivery of public services are two Constitutionally mandated. They are empoweringcitizens and decentralizing administration. Though much ground is covered in thesedirections, there are many possibilities for greater innovation and experimentation.Volume IV of the Report has made detailed recommendations on decentralizedgovernance. [Para 7.3]

7.7.02 The need for citizen empowerment is increasingly being acknowledged bylegislations like the Right to Information Act, the National Rural Employment GuaranteeAct, the Lok Ayukta Act etc. However, good governance is a far cry because of the wideprevalence of corruption and the poor administration of criminal justice. Corruptionretards economic growth and imposes heavy burden on the poorer sections of thepeople. States cannot achieve the goals of development and social justice withoutensuring corruption-free governance. A rights-based approach is the Constitutional wayto fight corruption. The corruption problem, when framed as a human rights issue, canenable the judiciary to enforce certain rights for the citizenry, demand a transparentand accountable system of governance and help establish a basis to monitor the process.The inclusion of a fundamental right to corruption-free delivery of public services willenable citizens to directly challenge cases of corruption as Constitutional violations andto seek Constitutional remedies. The Commission is inclined to recommend such anapproach as the problem has assumed serious proportions warranting drastic remedies.2. Time Bound Implementation of DPs thru decentralised GovernanaceThe effective implementation of all the policies enumerated in the Constitution anddeclared fundamental in governance within an agreed time-frame is another strategy todeliver good governance and ensure human development. There is no effective methodto ensure compliance of governments in this regard and therefore publicly announcedGuidelines are required to be developed by the Centre in consultation with states. Thiswill demand effective devolution of powers and functions to the local governments aswell. Coupled with social audit of implementation of Guidelines through an appropriatemechanism, decentralized system of governance can bring about the reform needed foreffective delivery of essential public services.(3) Public-Private Partnership in Delivery of Public Services: 7.7.04 Privateparticipation in public administration is being increasingly solicitedin a variety of fields like education, health etc. for a variety of reasons. However, anappropriate regulatory framework to ensure standards and accountability in thedelivery of public services is still not available. The extension of the concept of ‘State’ toprivate entities is not always a viable option though it is being used by Courts to extractaccountability. The Commission would recommend an institutional design to bedeveloped keeping in view the demands of rule of law, human rights and goodgovernance. There are stray examples of State initiatives which seem to be deliveringresults in certain sectors. These are to be collected, studied and put on the publicdomain for adoption elsewhere.7.7.05 As a corollary to the evolution of best practices in public-private partnership inthe delivery of public services, it is necessary to adopt national measurement standardson performance. Looking at the way public services are organized in other federalcountries, the Commission strongly recommends the model of “collaborativefederalism” in which there is inter-dependence but no hierarchy. The process from

policy making to performance assessment is more collaborative without any coercionon the units from the federal government. The collaboration extends to non-Statestakeholders and through the collective, transparent, rule-based decision makingprocesses public assets and services are managed with maximum efficiency andaccountability. The key element in collaborative federalism is non-hierarchical, non-authoritarian form of decision-making involving governmental and non-governmentalparticipants working toward a common objective within a legal framework. ThisCommission would recommend such a model for the promotion of good governance.7.7.06 The Commission would recommend a National Standards Organization forworking out the standards for social sectors on the lines of the Bureau of IndianStandards for manufacturing sector.