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Separate Codava Land Demanded

By Express News Service - BANGALORE

Published: 19th August 2013 08:27 AM
Last Updated: 19th August 2013 08:27 AM

Codava National Council members staging a demonstration demanding Codava Land on Sunday | NAGESH POLALI
Members of Codava National Council (CNC) staged a demonstration demanding a separate Codava Land, in front of the Town Hall here on Sunday.
Council President N V Nachappa Codava said, “Codavas have a separate language and culture. Therefore, they deserve a separate state as mentioned in the Schedule 6 of the Constitution, more than Telangana. Though we have been non-violently fighting for a separate Codava Land from the past 22 years, our demand is not being considered because we lack political clout.”
He said, “Our non-violent method should not be considered as our weakness.”  

 

Coorg The recognisation of State
By The Hindu

October 20.2013

 When it was a Part C State, the government in Coorg was a mobile administration going to the people anticipating their needs.

The discourse on the imminent birth of Telangana brings back memories of the glorious career of Coorg, now Kodagu district, as India’s tiniest state. The flashback is both sad and inspiring.
Not many are aware of the challenge the Lilliputian Part C State of Coorg had thrown to the advocates of big States by proving, beyond any doubt, that small States can thrive on their own. Every day in Coorg, the government’s dispensation was an engagement with people and was indeed a mobile administration going to the people, anticipating their needs.
For no fault of it, Coorg was snuffed out of existence. Recommendations of the States Reorganisation (Fazl Ali) Commission led to Coorg, then known as the Switzerland of South India, merging with the Mysore state, a backyard district of the new State in 1956.
Since then, heroic campaigns were launched by N.U. Nachappa, leader of the Codava National Council, who unsuccessfully knocked at the doors of the Union government demanding the restoration of the independent status of Coorg.
Telangana could be a ray of hope for Nachappa and his never say die compatriots to pick up the thread and join the race.
The movement for a unified Kannada land had stretched over nearly a century.
A Rs. 15,000-crore plan, based on the D.M. Najundappa Committee report on regional imbalances relating to the Hyderabad Karnataka region is also on the anvil. Similarly, the Bombay Karnataka region had smouldered under incensed grouse of neglect.
This piece does not attempt at lobbying for the rebirth of Coorg as an independent State. All that is intended is an essay in looking at things in their proper perspective. The virtues of the experience of Coorg as a civilised, modern, and democratic entity stand out in dire contrast to the sordid record of the titans of contemporary times.
Now, the anatomy of the dwarf — the birth place of the Cauvery which sprouts in Brahmagiri in Talacauvery, Coorg, with Mercara as its capital — was a marvel of 60x40 mile geographical dimensions.
Its population at the time was 1,30,000. It had affinities, for long, with the neighbouring Kannada land ambience. It had its own language without a script. So, Kannada was the mainstay which qualified its merger with Mysore. Before it bloomed into a Part C State alongside of Himachal and others, it had stints of royalty and direct British suzerainty.
It was the land of coffee, accounting for almost the whole national production, orange, honey, the best specimen of teak and other woods of commercial value spanning its ever green forest wealth, fed and supported by an unfailing south-west monsoon.
The land of Field Marshal K.M. Cariappa and General Thimmaya composed of sons of the soil, together with immigrants, Coorgs are a proud race influenced by westernisation.
This pride built into their psyche a strong sense of identity which they were keen on protecting and it found expression in the birth of the Takkadi party.
In the early 20th Century, the shadow of movement for unification of Karnataka had been cast on an unwilling Coorg.
The Takkadi party with a veteran Gandhian in Pandyanda Belliappa, was a dominant political force and voice of Coorg with its anti-merger plank. It lost the first Assembly elections in 1952 to C.M. Poonacha of the Congress, equipped to shoulder the responsibility of steering the fortunes of the first Part C State.
The Assembly had a strength of 24 members and the Cabinet consisted of just two members. While the Chief Minister was C.M. Poonacha, (who also held the finance portfolio), the other was Home Minister, Kuttur Mallappa. The head of State was the Chief Commissioner, Colonel Dayasingh Bedi. As the governor’s equivalent, Colonel Bedi was presiding over the meetings of the Cabinet.
The new democratic dispensation was a kind of a second liberation for Coorg. All through the Poonacha regime, the relationship between the government and the people was exemplary and cordial.
Because of its tiny size, people from the farthest tip in the South Kutta, near the Karntaka-Tamil Nadu-Kerala tri-junction, could reach the capital at midday, finish their call on the administration and go back to their home early in the evening.
There was no corruption. Neither was there beggary and no mosquitoes and malaria, the curse of Malnad of which Coorg was part. Literacy was almost cent per cent which was far higher than the national average.
Despite the fact that Coorgs enjoyed the licence to bear arms, surprisingly nobody talked of gun-related offences and crime.
On the other hand, the gun was the harbinger of new life as gun shots were fired at the birth of a baby as there were gunshots to mark bereavements.
Does one believe that weddings, though gala affairs, were a co-operative venture with the invitees contributing their share of the expenses of wed locks.
FINANCIAL viability 
Talking about FINANCIAL viability of the tiny State, agricultural income tax, covering the whole gamut of agrarian activity, including forest produce, formed the mainstay of the budget supplemented by traditional Central aid.

 

Link to Anandapur Resolution
Click Here

Autonomy: CNC Appeals to U.N.
By The Hindu

April27,2010

The U.N. urged to consider the long-pending demand of Kodavas

Memorandum sent to Permanent Mission of India

‘Stop conversion of farm land for other purposes'

Madikeri: Secretary general of the Codava National Council (CNC), which is spearheading the movement for an autonomous Kodava homeland, N.U. Nachappa, has appealed to United Nations Secretary-General Ban Ki-moon to send a fact-finding team to Kodagu to assess ground realities and consider the CNC's demand for an autonomous region for the Kodava people.

Speaking to presspersons here on Monday, Mr. Nachappa said that the CNC did not want secession from the Union of India or a separate State.

It only wanted the establishment of an autonomous Kodava region by bringing together the ancient 45 ‘nads' or groups of villages inhabited by the Kodavas, he said.

Copies of the memorandum with their demands had been sent to the Director of the United Nations High Commission for Human Rights and the Permanent Mission of India to the United Nations, in New York, he added.

In a separate memorandum submitted to the Prime Minister, the Union Home Minister and the Chief Minister and the Governor of Karnataka, Mr. Nachappa demanded legislation to stop conversion of agricultural land for non-agricultural purposes.

‘Land mafia at work'

A land mafia was operating in the district and agricultural land was being made into sites for housing colonies and resorts, Mr. Nachappa cautioned.

This could lead to the destruction of forests and uncontrolled urbanisation, he warned.

CNC members Mookonda Dilip, Kechettira Rally, Pullera Kalappa and Swathi Kalappa were present.

 

Demand Grows for Codava Land
By the Hindu

August7,2013

CNC to take out rallies on August 15 in Madikeri and on August 18 in Bangalore

The former chairperson of the Karnataka State Backward Classes Commission C.S. Dwarakanath has backed the demand for setting up of the Kodava Land Autonomous Region (CLAR). Addressing presspersons here on Tuesday, Mr. Dwarakanath said Kodava culture is unique and both Union and State governments have to protect it.

“I have studied the life and culture of Kodavas as the head of the commission. With the land owned by the Kodavas being bought over by multi-national companies, it is not just ownership of land that the Kodavas are losing; they are also losing their culture.

There have been similar struggles for existence in other parts of the country, particularly in the northeast,” he said.

Meanwhile, Codava National Council president N.U. Nachappa Codava reiterated that they are not demanding a separate State but the Union government should table the subject of establishment of CLAR under the Sixth Schedule of the Constitution along with the Bill on Telangana during the monsoon session in Parliament. “Compared to Telangana, the question of establishing CLAR seems possible as Kodagu was a ‘C’ type State until 1956 and an independent State before that,” he said.

Mr. Nachappa said that the CNC’s demand for CLAR carries a lot of weight as they were not demanding a separate State. CNC will take out rallies on August 15 in Madikeri and on August 18 in Bangalore, he added.

 

Create Codava Autonomus Land:CNC
By The Hindu

January 27,2014

 

The Codava National Council (CNC) members led by its president N.U. Nachappa, staged a satyagraha outside the office of Deputy Commissioner in Madikeri on Sunday to reiterate the demand for creation of an autonomous Kodava homeland in the district.

In a memorandum submitted to the president, Prime Minister, and the Union Home Minister, through Kodagu Deputy Commissioner Anurag Tewari, Mr. Nachappa urged the President to direct the concerned to place a Bill in that regard before the Parliament along with the Telangana Bill. The concept of Indian Republic is incomplete without the creation of the Kodava autonomous land under the VI Schedule of the Constitution, Mr. Nachappa said.

A large number of CNC members staged a satyagraha in New Delhi on November 1 last year to highlight their cause and demand immediate action from the Centre. Sonia Gandhi, Oscar Fernandes, had appreciated the movement, Mr. Nachappa said. .

 

In final report, panel seeks permanent Plitical settlement for Kashmir
By The Hindu

october 12,2011

It will be shared with all-party delegation: Chidambaram

The Jammu and Kashmir interlocutors on Wednesday submitted their final report to Union Home Minister P Chidambaram, focusing on a “permanent political settlement of the Kashmir problem.”

“The report deals with issues pertaining to economic, social and cultural aspects of Jammu and Kashmir,” eminent journalist Dileep Padgaonkar told journalists outside the North Block office of the Home Minister soon after submitting the report. He was flanked by the other interlocutors, academic Radha Kumar and the former Information Commissioner, M.M. Ansari.

The three-member panel was appointed by the Centre exactly a year ago with a mandate to suggest the contours of a political settlement to the Jammu and Kashmir problem. “The report aims at a permanent political settlement of the Kashmir problem,” Mr. Padgaonkar said, refusing to elaborate further on its contents.

“We have told the Home Minister that the report is the outcome of our interaction with more than 600 delegations, mass meetings in all 22 districts of Jammu and Kashmir and three roundtable conferences of women activists, scholars and cultural activists. We have adhered to the time frame of one year in giving our final report,” he said. The report offers important insights, as it reflected in an “accurate and comprehensive” manner the views of the broadest possible spectrum of a cross-section of people of the State, he said.

Mr. Padgaonkar said Mr. Chidambaram told them that he would take the report forward and share it with the all-party delegation that had visited Kashmir last September. “The Home Minister has asked us to make ourselves available to the all-party delegation. After this, the report should be brought to the public domain because we want it to be debated across the country, and in particular in Jammu and Kashmir.”

Codava HomeLand: Telangana reinforces CNC belief
By The Hindu

August 1,2013

What has Kodagu district in Karnataka got to do with the endorsement by the United Progressive Alliance and the Congress Working Committee for the formation of Telangana State?

It has reinforced the belief of the Codava National Council (CNC), a body fighting for autonomy for Kodava homeland and Kodava people, a small and well-knit community in Kodagu.

Kodagu, one of the smallest districts in the State, remained a Part ‘C’ State from 1952 to 1956. It was amalgamated with the then Mysore State (now Karnataka) amid protests by a strong section of the Kodava people in 1956.

“We (CNC) will achieve our goal of securing autonomy for Kodagu through peaceful means,” asserts Nandineravanda U. Nachappa, who has been leading the movement for the last 22 years, albeit under different nomenclatures.

“The Telangana decision has strengthened our cause,” he told The Hindu .

Kodagu was ruled by the Lingayat Rajahs till the British annexed it in 1834 and renamed it Coorg.

The protests against the merger of Kodagu started gathering momentum, thanks to Mr. Nachappa, who formed LIWAK (Liberation Warriors of Kodagu) on September 1, 1991, seeking Statehood.

LIWAK was re-christened Kodagu Rajya Mukti Morcha (KRMM)) in 1995 by Mr. Nachappa to give it wide acceptance and a sense of a revolution, he said.

He accused the State governments of “suppressing” the feelings of the Kodava people who had been “marginalised and discriminated against” since the merger.

Counter movement

To counter the movement, Kodagu Praja Vedike was set up in the district around the same time, but this organisation later declined.

Mr. Nachappa chose to rename his organisation “Codagu National Council” (CNC) for a brief period in the beginning of 2000. However, he has continued with the arrangement since then. With this, the CNC also diluted its stand by dithering on the Statehood issue. Instead, it is demanding autonomy for Kodava homeland by bringing together the 45 erstwhile “nads” (a ‘nad’ is a cluster of several villages) inhabited by Kodava people, mostly in the southern parts of Kodagu.

The CNC’s other main demands are: reservation for Kodava people in all sectors; providing Constitutional guarantee to the land and culture of Kodavas; continuing with the exemption to hold weapons under Section 3 and 4 of the Indian Arms Act; establishing a university in Kodagu to propagate ‘Kodavalogy’; and inclusion of Kodava ‘thakk’ (language) in the VIII Schedule of the Constitution.

“What is wrong if an autonomous region is carved out within the State of Karnataka?” Mr. Nachappa asks and adds that the CNC would intensify its agitation.

The struggle for Kodava autonomous homeland has seen innumerable rallies in Kodagu, Bangalore, and at times in New Delhi. Numerous petitions have been submitted to the top political leaders in New Delhi and the State in the last two decades. Mr. Nachappa has roped in the support of academics, intellectuals, and even represented the United Nations. Ten days ago, Mr. Nachappa attended a meeting of the Federation of New States in New Delhi, a network of Statehood and autonomous region movements across the country. Mr. Nachappa said that the meeting was convened under the Chairmanship of Bodoland leader S.K. Bwismuthiary at his residence on July 21. Leaders of 26 Statehood and autonomous status movements were present.

Naga peace talks in New Delhi today TNT Magazine
By TheNorthEast Today

November 21,2013

TNT News: New Delhi/Kohima: The Nagaland government interlocutor and NSCN (IM) will hold the next round of peace talks in New Delhi today to find a lasting solution to the wide spread insurgency problem in Nagaland. Top leadership of NSCN(IM) led by chairman Isak Chishi Swu and general secretary Thuingaleng Muivah will meet interlocutor RS Pandey and discuss various issues concerning the demands of the Naga rebel group. Isak Chishi Swu refused to speculate whether the outcome of the talks would be positive. “We cannot say anything,”
“We are waiting for the government’s response and we are ready from our side. We want a solution as soon as possible,” Muivah said. Muivah alleged that many opportunities were lost due to delay in the talks, which has been going on since 1997, and accused the Centre of applying “delay tactics”. Further Pandey admitted that the peace talks have been going on for “quite some time” but refused to say anything on delay. NSCN (IM) entered into truce with the Government of India in 1997 and since then more than 80 rounds of talks were held between the Centre and the NSCN led by Swu and Muivah without solid outcome in the last 16 years of truce.

Going Backwards
By Deccan Herald

Mar 15, 2014

Reservation has almost lost its purpose as new castes are being brought within its ambit for securing their votes.
Martin Luther King Jr visited India in the1950s. After his return home, he was full of praise for India, especially for the affirmative action it took for the advancement of the depressed classes. He was referring to the reservations for the Scheduled Castes and the Scheduled Tribes in government jobs and educational institutions. It will sound astounding to those singing paeans for foreign countries in general and developed countries in particular. But Martin Luther paid tributes to the efforts made by India for the advancement of the underprivileged. Can India still be idealised like this for its efforts to usher in an egalitarian society? Reservation has almost lost its purpose as new castes are being brought within its ambit for securing their votes.

The Union government extended the benefits of reservation to Jats by including them in the central list of Other Backward Classes (OBC) just a few hours before the announcement of the Lok Sabha elections. The paramount question is, who is backward and what are the criteria of identifying backwardness? Though there is not much problem in respect to SCs and STs, it is quite problematic in the case of OBC. The constitutional mandate is quite clear that the government can make special provisions for socially and educationally backward classes of citizens as provided by Article 15(4) and for those not adequately represented in the government jobs as provided by Article 16(4).

The question is: Can caste be sole criterion of identifying backwardness? The Supreme Court has confounded the confusion by giving conflicting judgments in this regard. In State of AP vs P Sagar (1968), the Supreme Court struck down a notification by the Andhra government apparently based on exclusive caste criterion. It observed that the expression ‘class’ in Article 15(4) means a homogenous section of people grouped together because of certain likeness or common traits in the determination of which caste cannot be excluded altogether. It added, “But in the determination of a class, a test solely based upon the caste or community cannot be accepted.” 

Again, in Triloki Nath vs State of J&K (1969), it held that ‘backward class’ was not synonymous with backward caste or backward community. However, in A Peeriakaruppan vs State of T (1971), the apex court upheld the test of backwardness based on caste that it was permissible so long as such castes were socially and educationally backward though it warned against vested interests being created in favour of castes and directed for constant revision of the test. Ultimately, a 9-judge constitution bench of the Supreme Court, in Indra Sawhney vs Union, more popularly known as the Mandal Commission case (1992), by a majority of six to three, held that caste can be sole criterion of identifying backwardness. But the three judges in their dissent held it unconstitutional and inimical to the integrity of the country.

Inclusion of Jats

Though Jats were included in the lists of OBCs of nine states, they did not figure in the central list. A caste is included in the list on the recommendation of the National Commission for Backward Classes (NCBC) which had rejected the demand of Jats for inclusion. It is for the first time that the Union government has given the benefit of reservation to any caste without the recommendation of the NCBC. In 1997, the NCBC had categorically rejected the demand of including Jats from Haryana, Uttar Pradesh and Madhya Pradesh in the list of OBCs. Only Jats from Rajasthan were included but only after excluding those from Bharatpur and Dholpur districts. Again in 2005, the demand of Jats from Delhi was also rejected by the NCBC. As the agitation by Jats grew stronger, the Central government asked the Commission to review its earlier recommendations after it acquired review power in 2011.

The Commission requisitioned services of the Indian Council of Social Sciences Research (ICSSR) for collecting additional socio-economic data about Jats. It also held open hearings for four days from February 10 to 14 last giving two days each to supporters and opponents of the demand. Ultimately, the NCBC came to the conclusion that Jats as a class cannot be treated as backward: “Ethnically they are at a higher level; they are of indo-Aryan descent, their educational level is high and the social status they command is far higher than the ordinary Shudras. In the absence of social and educational backwardness coupled with inadequacy of representation in the services, Articles 15(4) and 16(4) of the Constitution do not apply for the purpose of treating Jats as a backward class.”

According to Section 9(2) of the NCBC Act, the recommendation of the Commission shall ordinarily be binding upon the Union government, though it has power to reject it. But for that, it has to adduce valid reasons as it cannot declare any caste as backward on its own. The opposition to their inclusion in the list came from other backward castes only who are already in the list as they genuinely fear a larger share being cornered by a dominant caste. But leaders of Jats feel that the attitude of other casts is like that of train passengers who after boarding the train do not want other passengers to enter and crowd, but when they are on platform, they board no matter how crowded compartments are. 

They also accuse the NCBC of reproducing the representations of the opponents verbatim in its report. The NCBC was created pursuant to the direction of the Supreme Court in the Mandal Commission case which said a body was required to identify the OBC. The Commission is mandated to advise the Central government about inclusions in and exclusions from the lists of communities notified as backward for the purpose of job reservations after careful deliberation, but ironically there has never been any revision of the list.

 

Lok Sabha Elaction 2014: Separtist moment at the fore in Karnataka
By DNA

22 March 2014 

 

Candidates contesting from the Mysore-Madikeri Lok Sabha constituency might find themselves in a fix over the Kodava land demand. Separatist activists have decided to rake up the issue of independent Kodava land in the upcoming Lok Sabha elections. They are likely to give a call to vote only for those candidates who can pledge their support to the formation of Kodava land in the form of an 'autonomous region' or 'hill council'.

The Codava National Council (CNC) that met in Madikeri on Friday has decided to sensitize candidates of all national and regional parties on the issue of racial discrimination and regional suppression that had been allegedly meted out on Kodava people. 

Speaking exclusively after the meeting to dna, president of the CNC U Nachappa Codava said, "There are various instances of Lok Sabha candidates supporting the causes of micro societies, hill councils, and autonomous administrative units. In recent times, the Gorkhaland and Telangana issues have been supported by the Lok Sabha candidates in those areas." 

SS Ahluwalia, the Lok Sabha candidate from Darjeeling constituency, has been supportive of Gorkhaland, and in the past, Yashwanth Sinha of the BJP, when he contested from the same constituency, was also sympathetic to the cause of autonomous administrative regions in the North East, So we expect candidates from the BJP, the Congress and the JDS to not just give lip service to our cause but also treat our demands for a hill council or autonomous administrative region status for Kodagu district" Codava said.

Though a minority, the Kodavas have 1.25 lakh votes in the Mysore-Madikeri Lok Sabha constituency. In the 2004 and 2009 elections, the constituency recorded 4% less voting by Kodavas due to a boycott.

"We do not want to be branded as anti democracy, but a few thousand Kodavas will prefer to show their dissent for neglecting socio-economic and political issues pertaining to Kodagu by boycotting voting in this elections, we have appealed to the governor on Friday that the gross negligence of developmental work in Kodagu district amounted to racial discrimination by the Indian Union and the state government. The central government has been studying the Khap Panchayat, a proposal to bring Jats under the OBC category, and even a Bodoland and the separate state of Telangana. So why not Kodava land?" was the question posed to the Karnataka Governor.

In another case, the Tulunadu separatist movement might also gather steam in the coming days using the Nethravati river diversion project as a plank. Pramod Kumar Rai, the originator of the Tulunadu movement, told dna that "the coastal region that we refer to as 'Tulunadu' was also suppressed to a great extent by the government of Karnataka. But for brave private initiatives in development, this region would have been as backward as any other backward areas. To rake up Tulunadu issue in these elections may not be possible. But I am sure that Nethravati river diversion project can be fought on Tulunadu platform."

 Sixthe Schedule

Provisions as to the Administration of Tribal Areas in _470[the States of Assam, Meghalaya, Tripura and Mizoram] 

1. Autonomous districts and autonomous regions.-(1) Subject to the provisions of this paragraph, the tribal areas in each item of _471[_472[Parts I, II and IIA] and in Part III] of the table appended to paragraph 20 of this Schedule shall be an autonomous district. 

(2) If there are different Scheduled Tribes in an autonomous district, the Governor may, by public notification, divide the area or

(3) The Governor may, by public notification,- 

(a) include any area in _471[any of the Parts] of the said table, 

(b) exclude any area from _471[any of the Parts] of the said table, 

(c) create a new autonomous district, 

(d) increase the area of any autonomous district, 

(e) diminish the area of any autonomous district, 

(f) unite two or more autonomous districts or parts thereof so as to form one autonomous district, 

_473[(ff) alter the name of any autonomous district,] 

(g) define the boundaries of any autonomous district: 


Provided that no order shall be made by the Governor under clauses (c), (d), (e) and (f) of this sub-paragraph except after consideration of the report of a Commission appointed under sub-paragraph (1) of paragraph 14 of this Schedule: 

_474[Provided further that any order made by the Governor under this sub-paragraph may contain such incidental and consequential provisions (including any amendment of paragraph 20 and of any item in any of the Parts of the said table) as appear to the Governor to be necessary for giving effect to the provisions of the order.] 

_475 2. Constitution of District Councils and Regional Councils.- _476[(1) There shall be a District Council for each autonomous district consisting of not more than thirty members, of whom not more than four persons shall be nominated by the Governor and the rest shall be elected on the basis of adult suffrage.] 

(2) There shall be a separate Regional Council for each area constituted an autonomous region under sub-paragraph (2) of paragraph 1 of this Schedule. 


(3) Each District Council and each Regional Council shall be a body corporate by the name respectively of "the District Council of (name of district)" and "the Regional Council of (name of region)", shall have perpetual succession and a common seal and shall by the said name sue and be sued. 

(4) Subject to the provisions of this Schedule, the administration of an autonomous district shall, in so far as it is not vested under this Schedule in any Regional Council within such district, be vested in the District Council for such district and the administration of an autonomous region shall be vested in the Regional Council for such region. 

(5) In an autonomous district with Regional Councils, the District Council shall have only such powers with respect to the areas under the authority of the Regional Council as may be delegated to it by the Regional Council in addition to the powers conferred on it by this Schedule with respect to such areas. 

(6) The Governor shall make rules for the first constitution of District Councils and Regional Councils in consultation with the existing tribal Councils or other representative tribal organisations within the autonomous districts or regions concerned, and such rules shall provide for- 

(a) the composition of the District Councils and Regional Councils and the allocation of seats therein; 

(b) the delimitation of territorial constituencies for the purpose of elections to those Councils; 


(c) the qualifications for voting at such elections and the preparation of electoral rolls therefor; 

(d) the qualifications for being elected at such elections as members of such Councils; 

(e) the term of office of members of _477[Regional Councils]; 

(f) any other matter relating to or connected with elections or nominations to such Councils; 

(g) the procedure and the conduct of business _478[(including the power to act notwithstanding any vacancy)] in the District and Regional Councils; 

(h) the appointment of officers and staff of the District and Regional Councils. 

_478[(6A) The elected members of the District Council shall hold office for a term of five years from the date appointed for the first meeting of the Council after the general elections to the Council, unless the District Council is sooner dissolved under paragraph 16 and a nominated member shall hold office at the pleasure of the Governor: 


Provided that the said period of five years may, while a Proclamation of Emergency is in operation or if circumstances exist which, in the opinion of the Governor, render the holding of elections impracticable, be extended by the Governor for a period not exceeding one year at a time and in any case where a Proclamation of Emergency is in operation not extending beyond a period of six months after the Proclamation has ceased to operate: 

Provided further that a member elected to fill a casual vacancy shall hold office only for the remainder of the term of office of the member whom he replaces.] 

(7) The District or the Regional Council may after its first constitution make rules _477[with the approval of the Governor] with regard to the matters specified in sub-paragraph (6) of this paragraph and may also make rules _477[with like approval] regulating- 


(a) the formation of subordinate local Councils or Boards and their procedure and the conduct of their business; and 

(b) generally all matters relating to the transaction of business pertaining to the administration of the district or region, as the case may be: 

Provided that until rules are made by the District or the Regional Council under this sub-paragraph the rules made by the Governor under sub-paragraph (6) of this paragraph shall have effect in respect of elections to, the officers and staff of, and the procedure and the conduct of business in, each such Council. 

_479* * * * * 

_480 3. Powers of the District Councils and Regional Councils to make laws.- (1) The Regional Council for an autonomous region in respect of all areas within such region and the District Council for an autonomous district in respect of all areas within the district except those which are under the authority of Regional Councils, if any, within the district shall have power to make laws with respect to- 


(a) the allotment, occupation or use, or the setting apart, of land, other than any land which is a reserved forest for the purposes of agriculture or grazing or for residential or other non-agricultural purposes or for any other purpose likely to promote the interests of the inhabitants of any village or town: 

Provided that nothing in such laws shall prevent the compulsory acquisition of any land, whether occupied or unoccupied, for public purposes _481[by the Government of the State concerned] in accordance with the law for the time being in force authorising such acquisition; 

(b) the management of any forest not being a reserved forest; 

(c) the use of any canal or water-course for the purpose of agriculture; 

(d) the regulation of the practice of jhum or other forms of shifting cultivation; 

(e) the establishment of village or town committees or councils and their powers; 

(f) any other matter relating to village or town administration, including village or town police and public health and sanitation; 

(g) the appointment or succession of Chiefs or Headmen; 

(h) the inheritance of property; 


_482[(i) marriage and divorce;] 

(j) social customs. 

(2) In this paragraph, a "reserved forest" means any area which is a reserved forest under the Assam Forest Regulation, 1891, or under any other law for the time being in force in the area in question. 

(3) All laws made under this paragraph shall be submitted forthwith to the Governor and, until assented to by him, shall have no effect. 

4. Administration of justice in autonomous districts and autonomous regions.-(1) The Regional Council for an autonomous region in respect of areas within such region and the District Council for an autonomous district in respect of areas within the district other than those which are under the authority of the Reginal Councils, if any, within the district may constitute vilage councils or courts for the trial of suits and cases between the parties all of whom belong to Scheduled Tribes within such areas, other than suits and cases to which the provisons of sub-paragraph (1) of paragraph 5 of this Schedule apply, to the exclusion of any court in the State, and may appoint suitable persons to be members of such village councils or presiding officers of such courts, and may also appoint such officers as may be necessary for the administration of the laws made under paragraph 3 of this Schedule. 


(2) Notwithstanding anything in this Constitution, the Regional Council for an autonomous region or any court constituted in that behalf by the Regional Council or, if in respect of any area within an autonomous district there is no Regional Council, the District Council for such district, or any court constituted in that behalf by the District Council, shall exercise the powers of a court of appeal in respect of all suits and cases triable by a village council or court constituted under sub-paragraph (1) of this paragraph within such region or area, as the case may be, other than those to which the provisions of sub-paragraph (1) of paragraph 5 of this Schedule apply, and no other court except the High Court and the Supreme Court shall have jurisdiction over such suits or cases. 

(3) The High Court _483*** shall have and exercise such jurisdiction over the suits and cases to which the provisions of sub-paragraph (2) of this paragraph apply as the Governor may from time to time by order specify. 


(4) A Regional Council or District Council, as the case may be, may with the previous approval of the Governor make rules regulating- 

(a) the constitution of village councils and courts and the powers to be exercised by them under this paragraph; 

(b) the procedure to be followed by village councils or courts in the trial of suits and cases under sub-paragraph (1) of this paragraph; 

(c) the procedure to be followed by the Regional or District Council or any court constituted by such Council in appeals and other proceedings under sub-paragraph (2) of this paragraph; 

(d) the enforcement of decisions and orders of such Councils and courts; 

(e) all other ancillary matters for the carrying out of the provisions of sub-paragraphs (1) and (2) of this paragraph. 

_484[(5) On and from such date as the President may, _480[after consulting the Government of the State concerned], by notification appoint in this behalf, this paragraph shall have effect in relation to such autonomous district or region as may be specified in the notification, as if- 

(i) in sub-paragraph (1), for the words "between the parties all of whom belong to Scheduled Tribes within such areas, other than suits and cases to which the provisions of sub-paragraph (1) of paragraph 5 of this Schedule apply,", the words "not being suits and cases of the nature referred to in sub-paragraph (1) of paragraph (5) of this Schedule, which the Governor may specify in this behalf," had been substituted; 


(ii) sub-paragraphs (2) and (3) had been omitted; 

(iii) in sub-paragraph (4)- 

(a) for the words "A Regional Council or District Council, as the case may be, may with the previous approval of the Governor make rules regulating", the words "the Governor may make rules regulating" had been substituted; and 

(b) for clause (a), the following clause had been substituted, namely:- 

"(a) the constitution of village councils and courts, the powers to be exercised by them under this paragraph and the courts to which appeals from the decisions of village councils and courts shall lie;"; 

(c) for clause (c), the following clause had been substituted, namely:- 

"(c) the transfer of appeals and other proceedings pending before the Regional or District Council or any court constituted by such Council immediately before the date appointed by the President under sub-paragraph (5);"; and 

(d) in clause (e), for the words, brackets and figures "sub-paragraphs (1) and (2)", the word, brackets and figure "Sub-paragraph (1)" had been substituted.] 


5. Conferment of powers under the Code of Civil Procedure, 1908, and the Code of Criminal Procedure, 1898_485, on the Regional and District Councils and on certain courts and officers for the trial of certain suits, cases and offences.-(1) The Governor may, for the trial of suits or cases arising out of any law in force in any autonomous district or region being a law specified in that behalf by the Governor, or for the trial of offences punishable with death, transportation for life, or imprisonment for a term of not less than five years under the Indian Penal Code or under any other law for the time being applicable to such district or region, confer on the District Council or the Regional Council having authority over such district or region or on courts constituted by such District Council or on any officer appointed in that behalf by the Governor, such powers under the Code of Civil Procedure, 1908, or, as the case may be, the Code of Criminal Procedure, 1898_485, as he deems appropriate, and thereupon the said Council, Court or officer shall try the suits, cases or offences in exercise of the powers so conferred. 

(2) The Governor may withdraw or modify any of the powers conferred on a District Council, Regional Council, court or officer under sub-paragraph (1) of this paragraph. 


(3) Save as expressly provided in this paragraph, the Code of Civil Procedure, 1908, and the Code of Criminal Procedure, 1898_485, shall not apply to the trial of any suits, cases or offences in an autonomous district or in any autonomous region to which the provisions of this paragraph apply. 

_486[(4) On and from the date appointed by the President under sub-paragraph (5) of paragraph 4 in relation to any autonomous district or autonomous region, nothing contained in this paragraph shall, in its application to that district or region, be deemed to authorise the Governor to confer on the District Council or Regional Council or on courts constituted by the District Council any of the powers referred to in sub-paragraph (1) of this paragraph.] 

_487[6. Powers of the District Council to establish primary schools, etc.-(1) The District Council for an autonomous district may establish, construct, or manage primary schools, dispensaries, markets, _488[cattle pounds], ferries, fisheries, roads, road transport and waterways in the district and may, with the previous approval of the Governor, make regulations for the regulation and control thereof and, in particular, may prescribe the language and the manner in which primary education shall be imparted in the primary schools in the district. 


(2) The Governor may, with the consent of any District Council, entrust either conditionally or unconditionally to that Council or to its officers functions in relation to agriculture, animal husbandry, community projects, co-operative societies, social welfare, village planning or any other matter to which the executive power of the State _489*** extends.] 

7. District and Regional Funds.- (1) There shall be constituted for each autonomous district, a District Fund and for each autonomous region, a Regional Fund to which shall be credited all moneys received respectively by the District Council for that district and the Regional Council for that region in the course of the administration of such district or region, as the case may be, in accordance with the provisions of this Constitution. 

_490[(2) The Governor may make rules for the management of the District Fund, or, as the case may be, the Regional Fund and for the procedure to be followed in respect of payment of money into the said Fund, the withdrawal of moneys therefrom, the custody of moneys therein and any other matter connected with or ancillary to the matters aforesaid. 

(3) The accounts of the District Council or, as the case may be, the Regional Council shall be kept in such form as the Comptroller and Auditor-General of India may, with the approval of the President, prescribe. 


(4) The Comptroller and Auditor-General shall cause the accounts of the District and Regional Councils to be audited in such manner as he may think fit, and the reports of the Comptroller and Auditor-General relating to such accounts shall be submitted to the Governor who shall cause them to be laid before the Council.] 

8. Powers to assess and collect land revenue and to impose taxes.- (1) The Regional Council for an autonomous region in respect of all lands within such region and the District Council for an autonomous district in respect of all lands within the district except those which are in the areas under the authority of Regional Councils, if any, within the district, shall have the power to assess and collect revenue in respect of such lands in accordance with the principles for the time being followed _481[by the Government of the State in assessing lands for the purpose of land revenue in the State generally]. 

(2) The Regional Council for an autonomous region in respect of areas within such region and the District Council for an autonomous district in respect of all areas in the district except those which are under the authority of Regional Councils, if any, within the district, shall have power to levy and collect taxes on lands and buildings, and tolls on persons resident within such areas. 

(3) The District Council for an autonomous district shall have the power to levy and collect all or any of the following taxes within such district, that is to say- 


(a) taxes on professions, trades, callings and employments; 

(b) taxes on animals, vehicles and boats; 

(c) taxes on the entry of goods into a market for sale therein, and tolls on passengers and goods carried in ferries; and 

(d) taxes for the maintenance of schools, dispensaries or roads. 

(4) A Regional Council or District Council, as the case may be, may make regulations to provide for the levy and collection of any of the taxes specified in sub-paragraphs (2) and (3) of this paragraph _486[and every such regulation shall be submitted forthwith to the Governor and, until assented to by him, shall have no effect]. 

_491[9. Licences or leases for the purpose of prospecting for, or extraction of, minerals.- (1) Such share of the royalties accruing each year from licences or leases for the purpose of prospecting for, or the extraction of, minerals granted by _492[the Government of the State] in respect of any area within an autonomous district as may be agreed upon between _492[the Government of the State] and the District Council of such district shall be made over to that District Council. 


(2) If any dispute arises as to the share of such royalties to be made over to a District Council, it shall be referred to the Governor for determination and the amount determined by the Governor in his discretion shall be deemed to be the amount payable under sub-paragraph (1) of this paragraph to the District Council and the decision of the Governor shall be final. 

_493 10. Power of District Council to make regulations for the Control of money-lending and trading by non-tribals.- (1) The District Council of an autonomous district may make regulations for the regulation and control of money-lending or trading within the district by persons other than Scheduled Tribes resident in the district. 

(2) In particular and without prejudice to the generality of the foregoing power, such regulations may- 

(a) prescribe that no one except the holder of a licence issued in that behalf shall carry on the business of money-lending; 

(b) prescribe the maximum rate of interest which may be charged or be recovered by a money-lender; 

(c) provide for the maintenance of accounts by money-lenders and for the inspection of such accounts by officers appointed in that behalf by the District Council; 


(d) prescribe that no person who is not a member of the Scheduled Tribes resident in the district shall carry on wholesale or retail business in any commodity except under a licence issued in that behalf by the District Council: 

Provided that no regulations may be made under this paragraph unless they are passed by a majority of not less than three-fourths of the total membership of the District Council: 

Provided further that it shall not be competent under any such regulations to refuse the grant of a licence to a money-lender or a trader who has been carrying on business within the district since before the time of the making of such regulations. 

(3) All regulations made under this paragraph shall be submitted forthwith to the Governor and, until assented to by him, shall have no effect. 

11. Publication of laws, rules and regulations made under the Schedule.-All laws, rules and regulations made under this Schedule by a District Council or a Regional Council shall be published forthwith in the Official Gazette of the State and shall on such publication have the force of law. 


_494 12. _493[Application of Acts of Parliament and of the Legislature of the State of Assam to autonomous districts and autonomous regions in the State of Assam.- (1) Notwithstanding anything in this Constitution- 

(a) no Act of the _496[Legislature of the State of Assam] in respect of any of the matters specified in paragraph 3 of this Schedule as matters with respect to which a District Council or a Regional Council may make laws, and no Act of the _496[Legislature of the State of Assam] prohibiting or restricting the consumption of any non-distilled alcoholic liquor shall apply to any autonomous district or autonomous region _497[in that State] unless in either case the District Council for such district or having jurisdiction over such region by public notification so directs, and the District Council in giving such direction with respect to any Act may direct that the Act shall in its application to such district or region or any part thereof have effect subject to such exceptions or modifications as it thinks fit; 

(b) the Governor may, by public notification, direct that any Act of Parliament or of the _496[Legislature of the State of Assam] to which the provisions of clause (a) of this sub-paragraph do not apply shall not apply to an autonomous district or an autonomous region _497[in that State] or shall apply to such district or region or any part thereof subject to such exceptions or modifications as he may specify in the notification. 

(2) Any direction given under sub-paragraph (1) of this paragraph may be given so as to have retrospective effect. 


_498[12A. Application of Acts of Parliament and of the Legislature of the State of Meghalaya to autonomous districts and autonomous regions in the State of Meghalaya.-Notwithstanding anything in this Constitution,- 

(a) if any provision of a law made by a District or Regional Council in the State of Meghalaya with respect to any matter specified in sub-paragraph (1) of paragraph 3 of this Schedule or if any provision of any regulation made by a District Council or a Regional Council in that State under paragraph 8 or paragraph 10 of this Schedule, is repugnant to any provision of a law made by the Legislature of the State of Meghalaya with respect to that matter, then, the law or regulation made by the District Council or, as the case may be, the Regional Council whether made before or after the law made by the Legislature of the State of Meghalaya, shall, to the extent of repugnancy, be void and the law made by the Legislature of the State of Meghalaya shall prevail; 

(b) the President may, with respect to any Act of Parliament, by notification, direct that it shall not apply to an autonomous district or an autonomous region in the State of Meghalaya, or shall apply to such district or region or any part thereof subject to such exceptions or modifications as he may specify in the notification and any such direction may be given so as to have retrospective effect. 

_499[12AA. Application of Acts of Parliament and of the Legislature of the State of Tripura to the autonomous district and autonomous regions in the State of Tripura.- Notwithstanding anything in this Constitution,- 


(a) no Act of the Legislature of the State of Tripura in respect of any of the matters specified in paragraph 3 of this Schedule as matters with respect to which a District Council or a Regional Council may make laws, and no Act of the Legislature of the State of Tripura prohibiting or restricting the consumption of any non-distilled alcoholic liquor shall apply to the autonomous district or any autonomous region in that State unless, in either case, the District Council for that district or having jurisdiction over such region by public notification so directs, and the District Council in giving such direction with respect to any Act may direct that the Act shall, in its application to that district or such region or any part thereof, have effect subject to such exceptions or modifications as it thinks fit; 

(b) the Governor may, by public notification, direct that any Act of the Legislature of the State of Tripura to which the provisions of clause (a) of this sub-paragraph do not apply, shall not apply to the autonomous district or an autonomous region in that State, or shall apply to that district or such region, or any part thereof, subject to such exceptions or modifications, as he may specify in the notification; 


(c) the President may, with respect to any Act of Parliament, by notification, direct that it shall not apply to the autonomous district or an autonomous region in the State of Tripura, or shall apply to such district or region or any part thereof, subject to such exceptions or modifications as he may specify in the notification and any such direction may be given so as to have retrospective effect. 

12B. Application of Acts of Parliament and of the Legislature of the State of Mizoram to autonomous districts and autonomous regions in the State of Mizoram.-Notwithstanding anything in this Constitution,- 

(a) no Act of the Legislature of the State of Mizoram in respect of any of the matters specified in paragraph 3 of this Schedule as matters with respect to which a District Council or a Regional Council may make laws, and no Act of the Legislature of the State of Mizoram prohibiting or restricting the consumption of any non-distilled alcoholic liquor shall apply to any autonomous district or autonomous region in that State unless, in either case, the District Council for such district or having jurisdiction over such region, by public notification, so directs, and the District Council, in giving such direction with respect to any Act, may direct that the Act shall, in its application to such district or region or any part thereof, have effect subject to such exceptions or modifications as it thinks fit; 


(b) the Governor may, by public notification, direct that any Act of the Legislature of the State of Mizoram to which the provisions of clause (a) of this sub-paragraph do not apply, shall not apply to an autonomous district or an autonomous region in that State, or shall apply to such district or region, or any part thereof, subject to such exceptions or modifications, as he may specify in the notification; 

(c) the President may, with respect to any Act of Parliament, by notification, direct that it shall not apply to an autonomous district or an autonomous region in the State of Mizoram, or shall apply to such district or region or any part thereof, subject to such exceptions or modifications as he may specify in the notification and any such direction may be given so as to have retrospective effect.]] 

13. Estimated receipts and expenditure pertaining to autonomous districts to be shown separately in the annual financial statement.- The estimated receipts and expenditure pertaining to an autonomous district which are to be credited to, or is to be made from, the Consolidated Fund of the State _500*** shall be first placed before the District Council for discussion and then after such discussion be shown separately in the annual financial statement of the State to be laid before the Legislature of the State under article 202. 


_501[14. Appointment of Commission to inquire into and report on the administration of autonomous districts and autonomous regions.- (1) The Governor may at any time appoint a Commission to examine and report on any matter specified by him relating to the administration of the autonomous districts and autonomous regions in the State, including matters specified in clauses (c), (d), (e) and (f) of sub-paragraph (3) of paragraph 1 of this Schedule, or may appoint a Commission to inquire into and report from time to time on the administration of autonomous districts and autonomous regions in the State generally and in particular on- 

(a) the provision of educational and medical facilities and communications in such districts and regions; 

(b) the need for any new or special legislation in respect of such districts and regions; and 

(c) the administration of the laws, rules and regulations made by the District and Regional Councils; 

and define the procedure to be followed by such Commission. 

(2) The report of every such Commission with the recommendations of the Governor with respect thereto shall be laid before the Legislature of the State by the Minister concerned together with an explanatory memorandum regarding the action proposed to be taken thereon by _502[the Government of the State]. 

(3) In allocating the business of the Government of the State among his Ministers the Governor may place one of his Ministers specially in charge of the welfare of the autonomous districts and autonomous regions in the State. 


_503[15. Annulment or suspension of acts and resolutions of District and Regional Councils.-(1) If at any time the Governor is satisfied that an act or resolution of a District or a Regional Council is likely to endanger the safety of India _504[or is likely to be prejudicial to public order], he may annul or suspend such act or resolution and take such steps as he may consider necessary (including the suspension of the Council and the assumption to himself of all or any of the powers vested in or exercisable by the Council) to prevent the commission or continuance of such act, or the giving of effect to such resolution. 

(2) Any order made by the Governor under sub-paragraph (1) of this paragraph together with the reasons therefor shall be laid before the Legislature of the State as soon as possible and the order shall, unless revoked by the Legislature of the State, continue in force for a period of twleve months from the date on which it was so made: 

Provided that if and so often as a resolution approving the continuance in force of such order is passed by the Legislature of the State, the order shall unless cancelled by the Governor continue in force for a further period of twelve months from the date on which under this paragraph it would otherwise have ceased to operate. 
 
_505[16. Dissolution of a District or a Regional Council.- _506[(1)] The Governor may on the recommendation of a Commission appointed under paragraph 14 of this Schedule by public notification order the dissolution of a District or a Regional Council, and- 

(a) direct that a fresh general election shall be held immediately for the reconstitution of the Council, or 

(b) subject to the previous approval of the Legislature of the State assume the administration of the area under the authority of such Council himself or place the administration of such area under the Commission appointed under the said paragraph or any other body considered suitable by him for a period not exceeding twelve months: 

Provided that when an order under clause (a) of this paragraph has been made, the Governor may take the action referred to in clause (b) of this paragraph with regard to the administration of the area in question pending the reconstitution of the Council on fresh general election: 

Provided further that no action shall be taken under clause (b) of this paragraph without giving the District or the Regional Council, as the case may be, an opportunity of placing its views before the Legislature of the State. 


_507[(2) If at any time the Governor is satisfied that a situation has arisen in which the administration of an autonomous district or region cannot be carried on in accordance with the provisions of this Schedule, he may, by public notification, assume to himself all or any of the functions or powers vested in or exercisable by the District Council or, as the case may be, the Regional Council and declare that such functions or powers shall be exercisable by such person or authority as he may specify in this behalf, for a period not exceeding six months: 

Provided that the Governor may by a further order or orders extend the operation of the initial order by a period not exceeding six months on each occasion. 
(3) Every order made under sub-paragraph (2) of this paragraph with the reasons therefor shall be laid before the Legislature of the State and shall cease to operate at the expiration of thirty days from the date on which the State Legislature first sits after the issue of the order, unless, before the expiry of that period it has been approved by the State Legislature.] 
 
17. Exclusion of areas from autonomous districts in forming constituencies in such districts.- For the purposes of elections to _508[the Legislative Assembly of Assam or Meghalaya] _509[or Tripura] _510[or Mizoram], the Governor may by order declare that any area within an autonomous district _511[in the State of Assam or Meghalaya] _509[or Tripura] _510[or Mizoram], as the case may be,] shall not form part of any constituency to fill a seat or seats in the Assembly reserved for any such district but shall form part of a constituency to fill a seat or seats in the Assembly not so reserved to be specified in the order. 

_512* * * * * 

19. Transitional provisions.- (1) As soon as possible after the commencement of this Constitution the Governor shall take steps for the constitution of a District Council for each autonomous district in the State under this Schedule and, until a District Council is so constituted for an autonomous district, the administration of such district shall be vested in the Governor and the following provisions shall apply to the administration of the areas within such district instead of the foregoing provisions of this Schedule, namely:- 

(a) no Act of Parliament or of the Legislature of the State shall apply to any such area unless the Governor by public notification so directs; and the Governor in giving such a direction with respect to any Act may direct that the Act shall, in its application to the area or to any specified part thereof, have effect subject to such exceptions or modifications as he thinks fit; 


(b) the Governor may make regulations for the peace and good government of any such area and any regulations so made may repeal or amend any Act of Parliament or of the Legislature of the State or any existing law which is for the time being applicable to such area. 

(2) Any direction given by the Governor under clause (a) of sub-paragraph (1) of this paragraph may be given so as to have retrospective effect. 

(3) All regulations made under clause (b) of sub-paragraph (1) of this paragraph shall be submitted forthwith to the President and, until assented to by him, shall have no effect. 

_513[20. Tribal areas.- (1) The areas specified in Parts I, II _514[,IIA] and III of the table below shall respectively be the tribal areas within the State of Assam, the State of Meghalaya _514[,the State of Tripura] and the _515[State] of Mizoram. 

(2) _516[Any reference in Part I, Part II or Part III of the table below] to any district shall be construed as a reference to the territories comprised within the autonomous district of that name existing immediately before the day appointed under clause (b) of section 2 of the North-Eastern Areas (Reorganisation) Act, 1971:


Provided that for the purposes of clauses (e) and (f) of sub-paragraph (1) of paragraph 3, paragraph 4, paragraph 5, paragraph 6, sub-paragraph (2), clauses (a), (b) and (d) of sub-paragraph (3) and sub-paragraph (4) of paragraph 8 and clause (d) of sub-paragraph (2) of paragraph 10 of this Schedule, no part of the area comprised within the municipality of Shillong shall be deemed to be within the _517[Khasi Hills District]. 

_514[(3) The reference in Part IIA in the table below to the "Tripura Tribal Areas District" shall be construed as a reference to the territory comprising the tribal areas specified in the First Schedule to the Tripura Tribal Areas Autonomous District Council Act, 1979.] 

TABLE 

Part I 

1. The North Cachar Hills District. 

2. _518[The Karbi Anglong District.] 

Part II 

_517[1. Khasi Hills District. 

2. Jaintia Hills District.] 

3. The Garo Hills District. 

_514 [Part IIA 

Tripura Tribal Areas District.] 

Part III 


_519* * * * * 

_520[1. The Chakma District. 

_521[2. The Mara District. 

3. The Lai District.]] 

_522[20A. Dissolution of the Mizo District Council.-(1) Notwithstanding anything in this Schedule, the District Council of the Mizo District existing immediately before the prescribed date (hereinafter referred to as the Mizo District Council) shall stand dissolved and cease to exist. 

(2) The Administrator of the Union territory of Mizoram may, by one or more orders, provide for all or any of the following matters, namely:- 

(a) the transfer, in whole or in part, of the assets, rights and liabilities of the Mizo District Council (including the rights and liabilities under any contract made by it) to the Union or to any other authority; 

(b) the substitution of the Union or any other authority for the Mizo District Council, or the addition of the Union or any other authority, as a party to any legal proceedings to which the Mizo District Council is a party; 

(c) the transfer or re-employment of any employees of the Mizo District Council to or by the Union or any other authoriy, the terms and conditions of service applicable to such employees after such transfer or re-employment; 

(d) the continuance of any laws, made by the Mizo District Council and in force immediately before its dissolution, subject to such adaptations and modifications, whether by way of repeal or amendment, as the Administrator may make in this behalf, until such laws are altered, repealed or amended by a competent Legislature or other competent authority; 

(e) such incidental, consequential and supplementary matters as the Administrator considers necessary. 

Explanation.- In this paragraph and in paragraph 20B of this Schedule, the expression "prescribed date" means the date on which the Legislative Assembly of the Union territory of Mizoram is duly constituted under and in accordance with the provisions of the Government of Union Territories Act, 1963. 

_523 20B. Autonomous regions in the Union territory of Mizoram to be autonomous districts and transitory provisions consequent thereto.-(1) Notwithstanding anything in this Schedule,- 

(a) every autonomous region existing immediately before the prescribed date in the Union territory of Mizoram shall, on and from that date, be an autonomous district in that Union territory (hereafter referred to as the corresponding new district) and the Administrator thereof may, by one or more orders, direct that such consequential amendments as are necessary to give effect to the provisions of this clause shall be made in paragraph 20 of this Schedule (including Part III of the table appended to that paragraph) and thereupon the said paragraph and the said Part III shall be deemed to have been amended accordingly; 

(b) every Regional Council of an autonomous region in the Union territory of Mizoram existing immediately before the prescribed date (hereafter referred to as the existing Regional Council) shall, on and from that date and until a District Council is duly constituted for the corresponding new district, be deemed to be the District Council of that district (hereafter referred to as the corresponding new District Council). 


(2) Every member whether elected or nominated of an existing Regional Council shall be deemed to have been elected or, as the case may be, nominated to the corresponding new District Council and shall hold office until a District Council is duly constituted for the corresponding new district under this Schedule. 

(3) Until rules are made under sub-paragraph (7) of paragraph 2 and sub-paragraph (4) of paragraph 4 of this Schedule by the corresponding new District Council, the rules made under the said provisions by the existing Regional Council and in force immediately before the prescribed date shall have effect in relation to the corresponding new District Council subject to such adaptations and modifications as may be made therein by the Administrator of the Union territory of Mizoram. 

(4) The Administator of the Union territory of Mizoram may, by one or more orders, provide for all or any of the following matters, namely:- 

(a) the transfer in whole or in part of the assets, rights and liabilities of the existing Regional Council (including the rights and liabilities under any contract made by it) to the corresponding new District Council; 

(b) the substitution of the corresponding new District Council for the existing Regional Council as a party to the legal proceedings to which the existing Regional Council is a party; 

(c) the transfer or re-employment of any employees of the existing Regional Council to or by the corresponding new District Council, the terms and conditions of service applicable to such employees after such transfer or re-employment; 

(d) the continuance of any laws made by the existing Regional Council and in force immediately before the prescribed date, subject to such adaptations and modifications, whether by way of repeal or amendment, as the Administrator may make in this behalf until such laws are altered, repealed or amended by a competent Legislature or other competent authority; 

(e) such incidental, consequential and supplementary matters as the Administrator considers necessary. 

20C. Interpretation.- Subject to any provision made in this behalf, the provisions of this Schedule shall, in their application to the Union territory of Mizoram, have effect- 

(1) as if references to the Governor and Government of the State were references to the Administrator of the Union territory appointed under article 239, references to State (except in the expression "Government of the State") were references to the Union territory of Mizoram and references to the State Legislature were references to the Legislative Assembly of the Union territory of Mizoram; 

(2) as if- 

(a) in sub-paragraph (5) of paragraph 4, the provision for consultation with the Government of the State concerned had been omitted; 

(b) in sub-paragraph (2) of paragraph 6, for the words "to which the executive power of the State extends", the words "with respect to which the Legislative Assembly of the Union territory of Mizoram has power to make laws" had been substituted; 

(c) in paragraph 13, the words and figures "under article 202" had been omitted.]] 

21. Amendment of the Schedule.- (1) Parliament may from time to time by law amend by way of addition, variation or repeal any of the provisions of this Schedule and, when the Schedule is so amended, any reference to this Schedule in this Constitution shall be construed as a reference to such Schedule as so amended. 

(2) No such law as is mentioned in sub-paragraph (1) of this paragraph shall be deemed to be an amendment of this Constitution for the purposes of article 368. 

 

PC Haldar to be ULFA talks interlocutor
By The Assam Tribune

June 17,2010

NEW DELHI, June 16 – The stage is set for appointment of former Director of Intelligence Bureau PC Haldar as the interlocutor for the ULFA peace process, with Chief Minister Tarun Gogoi formally suggesting his name toUnion Home Minister P Chidambaram here today.

After calling on the Prime Minister on Tuesday, the Chief Minister today briefed Chidambaram on the ULFA peace process being initiated by the State Government.

The Union Home Minister has given the “go ahead” and assured of all possible assistance to the State Government to start the peace process, said Gogoi emerging from his meeting with Chidambaram at his North Block Office. “He has given us the go ahead,” he said.

Gogoi said, he has suggested Haldar’s name, as he is already involved in the peace process with other militant outfits like DHD(J), UPDS and NDFB among others.

Considered an old hand on North-east, Haldar’s appointment as the interlocutor for ULFA peace process remains a formality, with both the State Government and the Centre on the same page.

Gogoi’s meeting with Chidambaram is significant because the crucial role likely to be played by the Home Ministry in the peace process. However, he did not discuss the upcoming visit of the Sanmilita Jatiya Abhibartan (SJA). Yesterday, he had raised it in his meeting with the Prime Minister, who has agreed to meet them.

Replying to questions, Gogoi reiterate that the State Government wished to go step by step. He said, modalities have to be worked out in consultation with the ULFA leaders ahead of the dialogue.

Confirming that he has received positive signals, Gogoi, however, declined to divulge in what form the State Government has received the proposal for talks.

The State Cabinet has discussed the issue and decided to go ahead with the negotiations with ULFA, he said.

Majority of ULFA men, who are in Assam are willing to come forward to join the peace process, he said. The idea is to involve everybody, who is willing to talk. If they want to talk, the State Government is willing, Gogoi added.

Describing the developments as positive, the Chief Minister said things are moving in the right direction. The Chief Minister, however, declined to give a definite time frame for the formal dialogue to start, reiterating that the modalities for the talks have to be worked out first.

Meanwhile, when asked about the ongoing CBI raids on those suspected to be involved in the multi-crore rupee scam in NC Hills, the Chief Minister declined to say much. He said he has seen media reports. “The CBI is probing the matter and they are doing their job. In any case they don’t report to me,” he remarked.

 The Devil Lies in the Detail

March 25,2014:The weapon of resignations may be used to put pressure on Cong high command to hold, if not reverse, its decision on Telangana state.

Even as the central government moves swiftly on fulfilling the political and constitutional   formalities for carving out the new state of Telangana, the political theatre of Andhra Pradesh witnesses multiple actions from several quarters. A section of political elite from Seemandhra region is reconciling with the reality. This is evident from the fact that Congress leaders from Rayalaseema region are speaking in many voices. While some of them prepare to use the weapon of resignations to put pressure on Congress high command to put on hold, if not reverse its decision, others demand that Kurnool may be made the capital of the left over Andhra Pradesh state. Kurnool was the capital of Andhra State before it merged with Hyderabad State to form the present Andhra Pradesh. However, the demand for separate Rayalaseema still lingers on. It is rather histrionic as the same set of leaders are making different demands at a time. This baffling behaviour only indicates the sense of helplessness.

Meanwhile, the anger in the streets of Seemandhra region continues to be displayed strongly. But, this is unlikely to have a significant impact on the Congress high command as it has to face such anger in this or that region. The political class is responding to the street anger. This could be interpreted in many ways. The Congress somersault earlier even after making the announcement of forming the state of Telangana on the floor of Parliament is still fresh in the minds of  Seemandhra leaders. Perhaps, the recent threat of resignations is a last ditch effort to stall the process of Telangana formation. Their confidence in the political malleability of Congress high command is certainly not unfounded. This is precisely why the leaders of Telangana, including TRS supremo K Chandra Sekhar Rao, are keeping their fingers crossed.


Lacks pragmatism 

The T leaders fear that there can be many a slip between the cup and the lip. Meanwhile, as the political decision for bifurcation is taken after prolonged procrastination and prevarication, several thorny issues are now cropping up. TDP leader N Chandra Babu Naidu, who lacked the courage to resist Telangana decision, makes a political demand for central funding of at least five lakh crores to build a capital for the other State on par with Hyderabad. The Seemandhra Congress leadership and the YSR Congress leadership have launched a political offensive against Chandra Babu Naidu that his support for Telangana has actually led to the decision for bifurcation. In fact, Chandra Babu Naidu and his party faced a similar attack from Congress Telangana leaders and the TRS that he was responsible for putting on hold earlier announcement on Telangana.  Enthused by good show even in Seemandhra region after the T announcement, Chandra Babu Naidu now raises the demand for such a huge funding for new capital. Nothing wrong in having a wish list. But, political leadership should not loose pragmatism and invoke exaggerated aspirations in the people.

Hyderabad has not come up overnight to be replicated. This city was known for its grandeur even before the formation of united Andhra Pradesh state. The governments can create infrastructure, but, highly developed educational institutions, research institutions, industries cannot be created overnight. The capital needs to be evolved and the Centre should generously contribute for this. But, any comparison between Hyderabad which has over 400 years of history  with the proposed new capital may serve the political agenda of someone but has a potential to create undesirable competition. 
The city of Hyderabad is already the bone of contention between the supporters and opponents of Telangana. During the last five odd decades of its existence as the capital of united state, people from Coastal Andhra and Rayalaseema region developed economic and emotional relationship with Hyderabad. A generation has lived through this relationship. More so, Hyderabad is seen as land of opportunities and rightly so. This is a result of lopsided development model where development and capital got concentrated in one city. An  attempt to repeat the same model with a focus on capital centred growth is leading to competitive demands for setting up the capital of the remaining Andhra Pradesh state. This is likely to become a bone of contention between coastal Andhra and Rayalaseema regions. Such portentous signs are already evident. If this controversy is not settled amicably, the demand for trifurcation of Andhra Pradesh state into three states with each region as separate State may strengthen. 

On the other hand the central government has to answer many perplexing questions over its decision to make Hyderabad common capital. The devil lies in the detail. The centre decided to form Telangana state with 10 districts which include Hyderabad. Therefore the idea of making the city Union Territory does not find favour. The local leaders of Hyderabad will also oppose any move to make Hyderabad a Union Territory as such an entity lacks democratic institutions. It may also result in similar demands from other cities. Maharashtra is already witnessing such a controversy over Shobha De’s tweets. 

Other problems


This is also fraught with several other problems. The proposal to make Hyderabad common capital lacks clarity on several counts. Such a proposal certainly addresses emotional apprehensions in the minds of those who came to Hyderabad from regions other than Telangana. Such concerns became stronger in the wake of anarchic slogans during the course of agitation for separate Telangana state. But, the Centre has to answer many perplexing questions here. If Hyderabad is in Telangana state, how can government of some other state operate from a region in other state. Can Hyderabad infrastructure sustain two state governments. Hyderabad is geographically not contiguous with the Seemandhra region. Besides there is also a controversy over the revenues of Hyderabad as new capital cannot generate similar revenues. 

The issue of sharing river waters also demand satisfactory resolution. The state of united Andhra Pradesh has a bitter experience of having water disputes with neighbouring states like Karnataka, Maharashtra. The projects in one state have to irrigate lands in other state. But, such problems are certainly not beyond peaceful solution; when countries can share rivers, why not two states. There is well laid out constitutional process to adjudicate on river water disputes. But, the political leadership should demonstrate political sagacity and statesmanship. Otherwise chauvinist demands may come up in either region, thus vitiating the relationship between two nascent Telugu states. The centre offers to answer all these issues when it comes to the drafting of the bill for formation of new state. The debate shall continue. So is the political posturing and at times political brinkmanship

 

The odds of consummating Telangana dream
By The Deccan Herald

August 4,2013

The long cherished dream of the people of Telangana has come true, with the announcement of creation of a separate state comprising 10 districts from the state of Andhra Pradesh (AP), that too with IT hub Hyderabad as its capital. But the decision on Telangana statehood, believed to be for electoral gains in the 2014 parliament elections despite opposition from people of Coastal Andhra and Rayalaseema regions, together known as Seemandhra, will trigger critical issues that need to be addressed.

The Seemandhra leaders might say that the high command has assured justice in water sharing, education and employment opportunities, and most important of all funding. But none of these assurances were put on record when the Congress Working Committee (CWC) spokesperson announced bifurcation of AP into two states. “We had told Seemandhra leaders of our decision on July 12 itself. You should not blame us if your leaders did not convey the same to you,” was the retort of Digvijay Singh to a Seemandhra MP, who met him after the CWC declaration and wanted to influence Sonia Gandhi to reconsider the decision.

What the Seemandhra leaders have now conveyed to the party rank and file is an enigma. But the ferocity with which the Samaikhya Andhra cadres are now attacking the statues of Rajiv Gandhi and Indira Gandhi is an indication of the skewed message that must have reached them or the passing the buck strategy of the local leaders.
Any solutions?

The Opposition YSR Congress and TDP leaders, and also Congress leaders from the  Seemandhra region have often voiced their apprehensions about a number of issues which need to be addressed before formation of Telangana state. “Successive Commissions, including the Srikrishna Commission, have recorded their concerns on these issues, forcing the governments to put the demand for Telangana on the back burner,” says Gade Venkat Reddy, senior congress leader.

While legal hurdles are to be resolved with necessary amendments to several legislation in the Assembly, and through executive orders of the Governor and administration, can the emotional issues be thrashed out easily? Foremost, is the issue of sharing of river waters. During the TDP and the YSR regimes for last 20 years, several irrigation and water works were taken up on the Godavari and Krishna rivers for better use of the water going waste into the sea. At least on five of the projects, thousands of crores of rupees have been spent without even the sanction of the Central Water Commission. Now,  the Telangana  leaders could oppose the release of water from the rivers and also raise the bogie of Telangana share, leading to drying up of the Godavari delta which produced paddy during three crop seasons a year .

“How can you address the river water issue?” questions M V Mysoora Reddy, YSRC legislator-spokesman and an authority on river water sharing issues. Projects like Telugu Ganga, Handri–Neeva, Galeru-Nagari and Veligonda have no water allocations and any friction would render 22.5 lakh acres in Rayalaseema dry and barren. Senior TDP legislator Somireddy  Chandramohana Reddy says that even the Krishna and Godavari delta regions in Krishna, Guntur, East and West Godavari districts will now have to depend on the whims and fancies of Telangana state.

High stakes


In the realm of education, Seemandhra educationists have promoted corporate schools and colleges after the TDP opened up education sector for privatisation. Many big names like Narayana, GITAM, Chaitanya, and Gautami have hundreds of schools and colleges in Telangana and other regions. During the 2010-11 pro-Telangana agitations, many of them were attacked and also had to stop functioning under threat from T-Joint Action Committee (T-JAC) and Telangana Rashtra Samiti (TRS). “A huge investment of Rs 15,000 crore has gone into promoting infrastructure like huge campuses, residential schools and corporate colleges. We do not know what to do with the massive infrastructure,” says a spokesman of the associations of private educational institutions.

Majority of small and medium scale industrialists and also major industrial groups functioning with Hyderabad as their base are all from Seemandhra region. For instance, groups like GMR, Nagarjuna, GVK, Lanco, and Satyam are all non-Telangana.

Both in 2010 and 2011, there were reports that agitators had scared away youth from other regions who came for interviews in the public sector companies like the BHEL. “Seemandhra leaders have made as high an investment as Rs 5 lakh crore in the region,“ says Harischandra Prasad, a former CII president.

Next comes the real estate slump anticipated after T formation. Telangana state agitation had in 2010 and 2011 led to a huge nosediving of real estate prices. Though there was a resurrection in 2012 and 2013, the T slump has again hit the state capital since last Tuesday. 

Coveted government jobs in Telangana have always been the bone of contention between employees’ unions of Telangana and Seemandhra. In fact there are two separate employees’ bodies to protect the interests of employees from these regions and are always warring over   share in key posts and also transfers. 

Although the jobs and transfers are guarded by the presidential order of 1968 and also the GO 610, its implementation is very tardy. T NGOs claim that employees from Andhra were given migration for appointments to key posts. However, AP NGOs’ leadership question, ‘How can we do that with the presidential order forbidding zonal transfers?”
Other burning issues that will plague Telangana formation is sharing of minerals, particularly coal and iron ore, bauxite and limestone; sharing of power generation with all hydel power plants in Seemandhra and a few thermal plants in Telangana region. But Telangana has all the coal deposits in Singareni which could starve the thermal plants at Vijayawada, Nellore, and Rayalaseema.

Sum up

Amit Jain, a wholesale trader of pulses in Begum Bazaar in old city of Hyderabad had a solution: “One needs Telangana for edible oil, pulses, cotton, lubricants, corporate hospitals and other essential commodities, besides liquor. Same way, Telangana depends on Seemandhra for rice, tobacco, coconut, vegetables,  hydel power, fish, chicken and gas. All along nobody bothered about these issues. Now, there will be permits and taxes on movement of these goods leading to spiralling cost of living, which is already at bursting point”.

What he means in other words is that both regions have to co-exist even after bifurcation for survival. The two sets of courts, secretariats, governments, cabinets and also services will just be  ornamental as two windows in a single home. Only time and pace of development in coming days and years will prove Jain right or wrong.

 United States of India in MDMK's Poll Manifesto

CHENNAI: Back in the electoral fray after skipping the Assembly polls in 2009, Vaiko-led MDMK, an ally of BJP inTamil Nadu has batted for 'United States of India' to ensure more powers to states.

Releasing his party's manifesto here, party President Vaikosaid "Federalism must be protected to safeguard unity and integrity of India. We feel there is a necessity to bring amendments to the Constitution and form United States of India."

MDMK, a strong supporter of LTTE, also promised to strive for revoking the ban on the outfit and for a referendum on the Lankan Tamils issue for a separate 'Eelam' (Tamil homeland).

Among other things, the party assured the electorate that it would strive to include steps to prevent attacks on Indian fishermen by Lankan naval personnel, official language status for Tamil, retrieval of Katchatheevu islet, 27 per cent reservation in educational institutions like IITs, IIMs and AIIMS, interlinking of rivers, abolishing death penalty and implementing the Sethusamudram Project.

The party also promised to press for closure of the nuclear plant at Kudankulam.

MDMK, which has been allotted seven constituencies by the BJP in its alliance, has other demands like a separate agriculture budget, ban on futures trading on essential commodities, effective implementation of the ban on illegal sand mining, seeking a Supreme Court bench in Chennai, retrieving black money stashed abroad and statehood for the Union Territory of Puducherry.

 

CHAPTER 8

                                                                     

UNION – STATE RELATIONS

CONTENTS

 

 

8.1

 

Background

 

 A. Legislation

 

 

8.2.

8.2.14

 

Ø      Legislative Relations

Ø      Suggestion for a new entry in the Concurrent List – Management of Disasters and Emergencies, Natural or Man-made

 

 

 

8.3

8.3.5

8.4

8.5

8.6

 

Ø      FINANCIAL Relations

Ø      Enlargement of the Scope of the Finance Commission

Ø      Share of States in taxes, cesses and surcharges.

Ø      Tax on Services

Ø      Status of Central Bank

 

 

 

 

 

 

 

 

8.7

8.8

C.      TRADE, Commerce and Intercourse

 

Ø      Barriers to Inter-State TRADE and Commerce

Ø      TRADE and Commerce Commission

 

 

 8.9

8.10

8.11

8.12

8.13

 

Ø      Inter-State Disputes

Ø      Inter-State Water Disputes

Ø      Inter-State Water Disputes Act

Ø      Inter-State Council

Ø      Treaty Making

 

 

8.14

8.14.4

8.15

8.16

8.17

8.18.

8.19

8.20

8.21

8.22

8.23

 E. Executive

Ø      Office of Governor

Ø      Assent of the President and Governors

Ø      Failure of Constitutional Machinery

Ø      Use-misuse of article 356

Ø      Sarkaria Commission

Ø      Should Article 356 be Deleted?

Ø      Need for Conventions

Ø      Situation of Political breakdown

Ø      Constitutional Amendments

Ø      Dissolution of Assembly

Ø      Miscellaneous Matters

 

 

CHAPTER 8 

UNION-STATE RELATIONS

1 

Background 

8.1.1   The Constitution in its very first article describes India as a Union of States.  When the British power was established in India it was highly centralized and unitary.   To hold India under its imperial authority, the British had to control it from the Centre and ensure that power remained centralized in their hands.  A strong central authority was for the British both an imperial and an administrative necessity.  The country continued to be ruled under the 1919 Act by a central authority until 1947.  And, since under the 1919 Act, there was a central government, a central legislature, a system of central laws etc., the use of these terms continued under the colonial hangover. 

8.1.2   In the Constituent Assembly, the Drafting Committee decided in favour of describing India as a Union, although its Constitution might be federal in structure.  Moving the Draft Constitution for the consideration of the Constituent Assembly on 4 November 1948, Ambedkar explained the significance of the use of the expression "Union" instead of the expression "Federation".  He said "…what is important is that the use of the word 'Union' is deliberate… Though the country and the people may be divided into different States for convenience of administration, the country is one integral whole, its people a single people living under a single imperium derived from a single source."  Finally, when the Constitution was adopted on 26 November 1949, it provided for India being a Union of States and its States and territories being as specified in the First Schedule.  The Schedule specified four types of units - Parts 'A', 'B' and 'C' States and Part 'D' territories.

8.1.3   During the last half-a-century, many structural changes have been made and the map of the Union of States reshaped.  Categorisation of States has disappeared, names of several territorial units called States have vanished, many new States have been formed on linguistic and other criteria, boundaries, areas, names etc. of some States have been altered and many relationships have been transformed.  As at present, the Union consists of 28 States and seven Union Territories.  Some unique solutions of regional councils, development boards, etc., have been attempted with varying degrees of success.   The three newest States are Uttaranchal, Jharkhand and Chhatisgarh.

8.1.4   It is a tribute to the farsightedness of the makers of the Constitution that all these changes could be brought about largely peacefully and entirely within the four-walls of the Constitution.  The predominant concern of the founding fathers as also of the various Commissions and Committees appointed since Independence to consider reorganisation of States or Union-State Relations - the JVP Committee, the Dar Commission, the States Reorganisation Commission (SRC), the Rajamannar Committee, the Sarkaria Commission, etc. - has been that of the unity and integrity of India.  We are still engaged in the stupendous task of national integration which is also an admission of the hard reality of our nation and Union being still in the making.  The SRC report concluded:

            It is the Union of India which is the basis of our nationality…States are but limbs of the Union, and while we recognize that the limbs must be healthy and strong…it is the strength and stability of the Union and its capacity to develop and evolve that should be governing consideration of all changes in the country.

8.1.5   The Commission feels that there is no dichotomy between a strong Union and strong States.  Both are needed.  The relationship between the Union and the States is a relationship between the whole body and its parts.  For the body being healthy it is necessary that its parts are strong. It is felt that the real source of many of our problems is the tendency of centralisation of powers and misuse of authority.

 

A -   Legislation

Legislative Relations

 

8.2.1       The Constitution, based on the principle of federalism with a strong and indestructible Union, has a scheme of distribution of legislative powers designed to blend the imperatives of diversity with the drive of a common national endeavour. In this respect our constitutional theory as well as practice have kept pace with contemporary developments. The current trends emphasise cooperation and coordination, rather than demarcation of powers, between different levels of government. The basic theme is inter-dependence in orchestrating the balance between autonomy of the States and the inner logic of the Union.

8.2.2   The Constitution adopts a three-fold distribution of legislative powers by placing them in any one of the three lists, namely I (Union List), II (State List) and III (Concurrent List). Articles 245 and 246 demarcate the legislative domain, subject to the controlling principle of the supremacy of the Union which is the basis of the entire system.

8.2.3   The Concurrent List gives power to two legislatures, Union as well as State, to legislate on the same subject. In case of conflict or inconsistency, the rule of repugnancy, as contained in article 254, comes into play to uphold the principle of Union power.

8.2.4   The Concurrent List expresses and illustrates vividly the underlying process of nation building in the setting of our heterogeneity and diversity. The framers of the Constitution recognised that there was a category of subjects of common interest which could not be allocated exclusively either to the States or the Union. Nonetheless, a broad uniformity of approach in legislative policy was essential to combine specific requirements of different States with the articulation of a common national policy objective. Conceived thus, harmonious operation of the Concurrent List could well be considered to be creative federalism at its best.

8.2.5   The problems that have attracted attention in the field of Union-State relations have less to do with the structure or the rationale of the Concurrent List than with the manner in which the Union has exercised its powers. In a fundamental political sense, the passing of one party dominance that characterised the first four decades of the Republic has also ended the drive towards overcentralisation. Even the powers that unquestionably belong to the Union, for example the power to temporarily assume the functions of a State Government under article 356, are heavily circumscribed by the political reality of a multi-party system where the States have acquired significant bargaining power vis-à-vis the Government of India.

8.2.6   The evolving political system has thus imparted considerable vitality to the federal impulses of the Constitution. However, what has been gained in the actual practice of legislative relations between the Union and the States, in terms of restoring the balance inherent in the constitutional scheme, has not entered the realm of institutional validation. To this extent, the unilateralism of the Union in regard to the exercise of legislative powers under the Concurrent List remains a potential problem area. The principal critique of concurrency is not that it is not required, but that it is used without consultation, that it is not exercised to deepen inter-dependence and co-operation but to stress dominance of the Union point of view.

8.2.7   It has to be conceded that institutional arrangements for facilitating exchange of views between the States and the Union on matters falling within the field of concurrent legislation leave something to be desired. This has happened in spite of the existence of the Inter-State Council under article 263. The Council has yet to develop into a mechanism to be relied on for an ongoing process of dialogue on vital socio-economic and political issues between the Union and the States and among the States. It is not as if such consultation is absent. There are Chief Ministers’ Conferences on specific issues. There are State Ministers’ Conferences on a variety of subjects on which common policy positions have to be formulated, such as Value Added Tax.

8.2.8   There is, however, no formal institutional structure that requires mandatory consultation between the Union and the States in the area of legislation under the Concurrent List which covers several items of crucial importance to national economy and security. Even the National Development Council, whose ambit may occasionally be widened beyond the Five Year and the Annual Plans, is seldom convened to test ideas and evaluate experience in policy formulation and implementation in areas where both the Union and the States are interested for the sake of social and economic development. 

8.2.9    The Concurrent List provides a fine balance between the need for uniformity in the national laws and creating a simultaneous jurisdiction for the States to accommodate the diversities and peculiarities of different regions. This also provides a distinguishing feature in the federal scheme envisaged by the framers of the Constitution.  This is further reinforced by placing a mode of altering the provisions in lists I,II and III in the 7thschedule among other matters of provisions substantive in nature and basic to the structure of the Constitution that fall within the purview of the proviso to clause (2) of Article 368.  A bill for amending the list in the 7thschedule has to be passed by Parliament by a majority of the total membership of that House and by a majority of not less than 2/3rd of the members of the House present and voting – and followed by ratification of legislatures of not less than ½ of the States.  This mechanism provides a statutory tilt in favour of consultation and cooperation with the States in matters pertaining to the Legislative sphere and inherent balance between flexibility and rigidity. 

8.2.10 Globalization as a phenomenon has created a great deal of mobility of goods, services, capital, technology; integrating the world trade far more than ever before.  There are also related concerns arising out of a need for a better and sustained use of resources of the earth as a planet that call for a much greater coordination in identification and formulation of responses among the nations.  This process of cohesive and concurrent action needs to generate, first-of-all within the national context. The geographical climate, environmental, technological diversities amongst States have to be harmonized in order that these may link with global processes for viable sustained, development and growth.  A major field of undertaking new initiatives in these spheres would lie in the legislative domain where a certain concurrences and coherence between the States and their different needs have to be harmonized to evolve national policies.  This is also reflected in issues that pertain to technology, trade, financial services etc.  in the global context.

8.2.11 The Commission examined the constitutional provisions regarding concurrent powers of legislation, analysing the constitutional amendments that had been enacted from time to time and the judicial pronouncements on major issues arising from concurrency. The view that emerged was that there was no ground for change in the existing constitutional provisions. 

8.2.12 The Commission believes that on the whole the framework of legislative relations between the Union and the States, contained in articles 245 to 254, has stood the test of time. In particular, the Concurrent List, List III in the Seventh Schedule under article 246 (2), has to be regarded as a valuable instrument for consolidating and furthering the principle of cooperative and creative federalism that has made a major contribution to nation building. The Commission is convinced that it is essential to institutionalise the process of consultation between the Union and the States on legislation under the Concurrent List.

8.2.13 The Commission recommends that individual and collective consultation with the States should be undertaken through the Inter-State Council established under article 263 of the Constitution. Further, the Inter-State Council Order, 1990, issued by the President may clearly specify in 4(b) of the order the subjects that should form part of consultation in the Inter-State Council.

Suggestion for a new entry in the Concurrent List – Management of Disasters and Emergencies, Natural or Man-made

8.2.14 The Commission has examined a suggestion made by the Union Ministry of Agriculture that “Management of Disasters and Emergencies, Natural or Man-Made” be included in List III of the Seventh Schedule, and agrees to the suggested inclusion. 

B -  Finance

Financial Relations

8.3.1   Division of financial powers and functions among different levels of the federal polity are asymmetrical, with a pronounced bias for revenue taxing powers at the Union level while the States carry the responsibility for subjects that affect the day to day life of the people entailing larger expenditure than can be met from their own resources. On an average, the revenue of States from their own resources suffices only for about 50 to 60 percent of States’ current expenditure. Since the insufficiency of the States’ fiscal resources had been foreseen at the time of framing the Constitution, a mechanism in the shape of Finance Commission was provided under article 280 for financial transfers from the Union. Its function is to ensure orderly and judicious devolution that is deemed necessary from the point of view of avoiding vertical or horizontal imbalances.

8.3.2   The Finance Commission is only one stream of transfer of resources from the Union to the States. The Planning Commission advises the Union Government regarding the desirable transfer of resources to the States over and above those recommended by the Finance Commission. Bulk of the transfer of revenue and capital resources from the Union to the States is determined largely on the advice of these two Commissions. By and large, such transfers are formula-based. Then there are some discretionary transfers as well to meet the exigencies of specific situations in individual States.

8.3.3   These institutional arrangements served the country well in the first three decades after independence. Testifying to the strength of these institutions neither the Union nor the States suffered from any large imbalance in their budgets, although the size of the public sector in terms of proportion of government expenditure to Gross Domestic Product had nearly doubled during this period.

8.3.4   Imbalances have become endemic during the last two decades and have assumed alarming proportions recently.  For this state of affairs, the constitutional provisions can hardly be blamed.  Broadly, the causes have to be sought in the working of the political institutions. There are shortcomings in the transfer system.  For example, the ‘gap-filling’ approach adopted by the Finance Commission and the soft budget constraints have provided perverse incentives.  The point, however, is that these deficiencies are capable of being corrected without any change in the Constitution.

Enlargement of the Scope of the Finance Commission

8.3.5   The institution of the Finance Commission has been one of the major success stories of the Constitution. The broad terms of reference as laid down in article 280(3) are unexceptionable.  However, other matters in the interest of sound finance can also be referred to the Finance Commission.  These would constitute additional terms of reference. It has been suggested that it would be desirable to associate the States more actively in deciding the additional terms of reference, preferably by having the National Development Council (comprising the Prime Minister and the Chief Ministers of States) to endorse the additional terms of reference. The Commission is not in favour of an amendment of article 280(3)(d) to enable such enlargement of the scope of the Finance Commission, However, it is recommended that terms of reference of the Finance Commission should be broader and comprise of matters which would take care, in a comprehensive way, aspects of the financial relations between the Union and the States.  The broadening of such terms of reference could also be discussed earlier by the National Development Council. 

8.3.6          Under article 281, the recommendations of the Finance Commission are laid before the Houses of Parliament along with an explanatory memorandum as to the action taken on them.  The recommendations are not theoretically binding, although there has been no case so far when the Government of India has deviated from recommendations of successive Finance Commissions.  It has been suggested that the Constitution itself should describe the recommendations as an award binding on both the Union and the States.  This has been urged in the context of the mechanism of the State Finance Commissions which are set up under articles 243-I and 243-Y which too make only recommendations and not awards.  The State Finance Commissions are a comparatively new constitutional mechanism.  They would take some time to strike roots in the constitutional soil.  Politicians at the Sate level have also to find their bearings in the new landscape where the old landmarks of patronage at the State level have yielded place to a non-discriminatory passage of resources from the State exchequer to the local government institutions.  Keeping in view the factors pointed out above the Commission does not consider it necessary to recommend the amendment of the Constitution to provide for the recommendations of either the Finance Commission constituted under article 280 or of the State Finance Commissions constituted under articles 243-I and 243-Y being treated as awards.

Share of States in taxes, cesses and surcharges

8.4.      The Constitution was amended to provide a prescribed percentage of the revenue receipts to be transferred to States (article 270(2)).  However, surcharges and cesses do not form part of the divisible pool.   Cesses are intended for specific purposes and the States can have no complaint if the money is spent on predetermined purposes.  Surcharges can be regarded as a not so thinly veiled device to deny the States their share in receipts from such surcharges.  Keeping in view the complexity of the present national and international situation which has placed additional burden on the Union, the Commission would not recommend any constitutional amendment to make surcharges shareable but would expect public policy to move decisively in the direction of doing away with the surcharges as part of the Union’s fiscal armoury

Tax on services

8.5In recent years, services have emerged as the dominant component in the gross domestic product (GDP).  Yet there is no mention in the Constitution in any of the three lists (Union List, State List, Concurrent List) enabling any level of government to tax services.  The Union has used the residuary power in the last entry of the Union List (entry 97) to levy taxes on selected services.  The efforts have not succeeded in tapping the full potential of the service sector of a vast range of services which are primarily local in nature.  It is necessary to enhance the revenue potential of the States in view of their major responsibilities for social and physical infrastructure.  It might be worthwhile to provide explicitly for taxing power for the States in respect of certain specified services.  For the Union also an explicit entry would be helpful, rather than leaving it to the residuary power of entry 97.  However, it may be better to first let a consensus list of services to be taxed by the States come into force to be treated as the exclusive domain of the States, even if the formal taxing power is exercised by the Union.  In other words, the golden rule here would be to hasten slowly.  A de facto enumeration of services that can be taxed exclusively by the States should get priority from policy makers with a view to augmenting the resource pool of the States.  The Commission recommends specific enumeration of services that may become amenable to taxation by the States.  This is necessary with a view to augmenting the resource pool of the States.  The Commission recommends an appropriate amendment to the Constitution in this behalf to include certain taxes, now levied and collected by the Union, to be enabled to be levied and collected by the States.  Illustratively a list of such subjects in respect of which service tax is levied under the relevant section of the Finance Act, 1994 (Act 32 of 1994) as amended from time to time is given below: 

  (1)      Section 65(48)(e):  “To a client, by an advertising agency in relation to advertisements in any manner”.  Corresponding Entry in List-II of the Constitution – Entry 55 – “Taxes on advertisements published in the newspapers [and advertisements broadcast by radio or television]”

  (2)      Section 65(48)(f) – “to a customer, by a courier agency in relation to door-to-door transportation of time-sensitive documents, goods or articles”. Corresponding Entry in List-II of the Constitution – Entry 56 – “Taxes on goods and passengers carried by road or on inland waterways”.

  (3)      Section 65(48)(m) – “to a client, by a mandap keeper in relation to the use of a mandap in any manner including the facilities provided to the client in relation to such use and also services, if any, rendered as a caterer”.  Corresponding Entry in List-II of the Constitution – Entry 49 – “Taxes on lands and buildings”

  (4)      Section 65(48)(o) – “to any person, by a rent-a-cab scheme operator in relation to the renting of a cab”  Corresponding Entry in List-II of the Constitution – Entry 57 – “Taxes on vehicles, whether mechanically propelled or not; suitable for use of roads, including tram-cars subject to the provisions of Entry 35 of List III.

  (5)      Section 65(48)(za) – “to any person, by a mechanized slaughter house in relation to the slaughtering of bovine animals.”

 

Status of Central Bank

8.6       A question has been raised whether any constitutional or legislative safeguards are needed to uphold the autonomy of the Reserve Bank of India (Entry 38, List I) in conducting monetary policy.  An advisory group set up by the Reserve Bank of India (RBI) has recommended that legislative changes should be made to facilitate the emergence of an independent and effective monetary policy.  However, the Commission sees no need for a change in the Constitution to specifically provide for independent conduct of monetary policy.  The existing legislation has broadly succeeded in maintaining a suitable environment of security and continuity for the key personnel and of the autonomy of decision making by the top management.  The Commission agrees that appropriate legislative changes would suffice for the proper and timely development of money, securities and exchange markets.

C - Trade, Commerce and Intercourse

Barriers to Inter-State Trade and Commerce

8.7.1    Free flow of trade without geographical barriers is sine-qua-non for economic prosperity nationally as well as internationally.  Therefore, progressive removal of such barriers has been a general phenomenon in social evolution in the modern world.  Today we are vigorously pursuing the goal of free flow of trade among the nations of the world under the banner of globalisation through, for example, the WTO among the nations of the world.  Regionally, member states of the European Community, for example, have already achieved that goal almost fully. 

8.7.2    As economy is the most important source of power and identity in the world of today, the nations or regions that constitute the federation do not want to lose their hold on economic power.  Nor do the economically strong States want the economically weak States to become parasites on them.  Therefore, an arrangement must be devised which will ensure free flow of trade, encourage fair competition and simultaneously remain capable of discouraging and regulating unfair trade practices.

8.7.3        One common arrangement found in all federations in this regard, is the division between the interstate and intrastate trade and commerce.  While the regulation of the former is assigned to the federal authority, the States retain the regulation of the latter.  Some federations have gone further and made interstate trade free from regulation both by the federal authority as well as the authority of the States.  Australia is the foremost example of that.  India goes one step further than Australia in so far as it makes flow of interstate as well as intrastate trade free from regulation by the Union as well as the States.  However, unlike Australia, after making such a general declaration, the Constitution of India gives adequate powers to the Union and the States, particularly to the former, to regulate trade and commerce.

 

Trade and Commerce Commission

8.8.2    For carrying out the objectives of articles 301, 302, 303 and 304, and other purposes relating to the needs and requirements of inter-state TRADE and commerce and for purposes of eliminating barriers to inter-state trade and commerce Parliament should by law establish an authority called the “Interstate Trade and Commerce Commission” under the Ministry of Industry and Commerce under article 307 read with Entry 42 of List-I.

 

D -  Resolution of Disputes

Inter-State Disputes

8.9.1   In a constitutional set-up where powers are distributed between the Union and the States, it is natural to expect disputes as to on which side of the boundary a particular matter falls.  Where such differences do arise, it is desirable that there should be a well thought out systemic mechanism for the resolution of such inter- State disputes.

8.9.2   Article 131 relates to the original jurisdiction of the Supreme Court and provides the judicial mechanism for dealing with inter-Governmental disputes involving any questions of law or fact on which existence or extent of a legal right depends between the Government of India and one or more States or between the Government of India and any State or States on the one side and one or more other States on the other or between two or more States.  However, a few matters are excluded either by express provisions or by necessary implication.

8.9.3    The Commission considered as to whether the Supreme Court should be given exclusive jurisdiction in controversies concerning the distribution of legislative powers.  Incidentally, it may be mentioned here that article 131A was inserted in the Constitution vide the Constitution (Forty-second Amendment) Act, 1976 so as to provide exclusive jurisdiction to the Supreme Court in regard to the questions as to constitutional validity of Union laws. However, the said provision was repealed by the Constitution (Forty-third Amendment) Act, 1977. After carefully considering the issues, the Commission is of the view that no exclusive jurisdiction need be conferred on the Supreme Court in matters of controversies concerning distribution of legislative power between the Union and the States. It would deprive non-governmental parties of the facilities and the advantages of seeking remedy in the High Courts.  However, there may be situations, which may require that such questions should not undergo a long drawn process of litigation and the Supreme Court should be enabled to dispose off such questions finally and quickly without its being made a court of exclusive jurisdiction.  The Commission is of the view that the Supreme Court should be empowered to transfer such cases to itself and decide the same. For this purpose it is not necessary to amend article 131.  It can be provided for by amending article 139A.  This will also ensure that the Supreme Court would be able to apply its mind and prima facie see as to whether (a) the case really involves some substantial question of law and is not raising untenable or frivolous contentions; and (b) whether the case is such that it should be transferred to it and disposed of expeditiously.

8.9.4    The Commission recommends that article 139A, which confers power on the Supreme Court to withdraw cases involving the same or substantially the same question of law, which are pending in Supreme Court and one or more High Courts, should be amended so as to provide that it can withdraw to itself cases even if they are pending in one court where such questions as to the legislative competence of the Parliament or State Legislature are involved.

Inter-State Water Disputes

8.10.1  Water is a prime resource for sustaining life on earth.  The domestic, agricultural and industrial uses of water are multiplying day by day and this phenomenal increase in demand for water in diverse fields has resulted in its scarcity. Moreover, availability of water is highly uneven in both space and time as it is dependent upon varying seasons of rainfall and capacity of storage.  India is served by two great river systems, i.e. the Great Himalayan Drainage system and the peninsular river network.  It has 14 major rivers that are inter-State rivers and 44 medium rivers of which 9 are inter-State rivers.  Eighty five per cent of the Indian land mass lies within its major and medium inter-State rivers. The Commission considered the importance of inter-State water sharing as an area of great concern in maintaining the federal spirit and better Union-State and inter-State relations. The Commission accordingly studied the mechanisms available for efficient, productive and sustainable resource management of the country’s river systems and allocation of inter-State water resources. 

8.10.3 The expression “regulation and development of inter-State rivers and river valleys” in Entry 56 of the Union List

8.10.2 The Constitution does not itself lay down any specific machinery for adjudicaion of water disputes. Article 262(1) lays down that Parliament may by law provide for the adjudication of any disputes of complaints with respect to use, distribution or control of the waters of, or in, any inter-State river or river valley. The subject Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power, subject to the provisions of Entry 56 of List I is a matter enumerated in entry 17 of the State List (List II) of the Seventh Schedule in the Seventh Schedule of the Constitution would include the use, distribution and allocation of the waters of the inter-State rivers and river valleys between different riparian States.  Otherwise the provision for the Union to take over the regulation and development under its control makes no sense and serves no purpose. The River Boards Act, 1956 which is admittedly enacted under Entry 56 of the Union List for the regulation and development of inter-State rivers and river valleys does cover the field of the use, distribution and allocation of the waters of the inter-State rivers and river valleys.  The very basis of a federal Constitution like ours mandates such interpretation and would not bear an interpretation to the contrary which will destroy the constitutional scheme. Although, therefore, it is possible technically to separate the “regulation and development” of the inter-State rivers and river valleys from the “use, distribution and allocation” of water, yet it is neither warranted nor necessary to do so.

Inter-State Water Disputes Act

8.11.1 Pursuant to the powers conferred by article262 of the Constitution, Parliament enacted the Inter-State Water Disputes Act, 1956 (Act 33 of 1956) to provide for adjudication of disputes relating to waters of inter-State river and river valleys.   The Union Government has constituted several Tribunals under the aforesaid Act. Section 4(1) of the Inter-States Water Disputes Act, 1956 empowers the Central Government to constitute a Water Disputes Tribunal for adjudication of a water dispute when a request from any State Government in respect of such water dispute is received by it and it is of opinion that the water dispute cannot be negotiated. The process under the Act from the stage of constitution of the Tribunal to the giving of the award by it normally takes 7 to 10 years.  The inordinate delay caused in constituting the Tribunals, delay in passing awards, framing of schemes or plans for giving effect to the decisions, and judicial review by the Supreme Court at times have been contributing factors in developing bitterness and friction between the States involved in the disputes.  All these delays were also causing underutilization of water resources and hindering the timely development of the nation.

8.11.2 Having regard to the various infirmities and difficulties in speedy and timely resolution of disputes, the Commission on Centre-State Relations (commonly known as Sarkaria Commission) in Chapter XVII of its report (Volume I) gave several recommendations for implementation. Keeping in view the recommendations of the Sarkaria Commission, the Union Government introduced the Inter-State Water Disputes (Amendment) Bill, 2001 in Lok Sabha to ensure the setting up of inter–State Tribunals and submission of reports by the Tribunals in a time bound manner. (See the Background paper on the subject for details). It was passed by Lok Sabha on 03.08.2001 and is still pending in the Rajya Sabha Though the Bill has dealt with some important aspects, particularly the speedier settlement of Inter-State Water Disputes, the momentum of change in technologies requires quicker and larger mobilization of water resources to sufficiently meet the different needs including that of food security.

8.11.3  The Commission observed that in case of every water dispute there have been several occasions when one or the other party approached the Supreme Court by way of seeking judicial review both against the interim orders of the tribunal as also against the final decision.  Further in the implementation of the decision of the tribunal the oustees or persons on behalf of the oustees resort to enforcing their fundamental rights under article 21 by a remedy under article 32, consequent on the submergence of their lands due to construction of reservoirs.  This leads to adjudication by two forums one as to the use and distribution of water and the other relating to the enforcement of fundamental rights in the process of implementation of the decision of the Tribunal.

8.11.4  The Commission is of the view that it is not necessary to exclude Inter-State Water Disputes from the original jurisdiction of the Supreme Court under article 131 of the Constitution and that such disputes should also be made to fall within the exclusive jurisdiction of the Supreme Court. It has been noticed that Inter-State Water Disputes Act, 1956 has vested the Tribunal with a very unique jurisdiction under section 3.   When a water dispute has arisen or is likely to arise by reason of the fact that the interest of the State or of the inhabitants thereof, in the waters of an inter-State river or river valley have been or are likely to be affected prejudicially by any executive action or legislation taken or passed or proposed to be taken or passed by another State, the aggrieved State Government may request the Union Government to refer the water dispute to a Tribunal for adjudication.  Consequently, even a proposed legislation can be the subject matter of a dispute and interdicted by the Tribunal by a quia timet action.  Courts do not exercise such powers of interdiction of legislative measures.  Appropriate provision should be made for conferring such a unique power on the Supreme Court. It is recommended that the Inter-State Water Disputes Act, 1956 be repealed and in its place a more comprehensive parliamentary legislation should be enacted. However, it is necessary to make express provisions that the suit shall be instituted in the Supreme Court, which shall have exclusive jurisdiction.

8.11.5 It is not necessary to repeal article 262 of the Constitution for shifting the jurisdiction from the Tribunal to the Supreme Court.  Article 262 is a very important provision and the said provision being a part of the Constitution as originally enacted and having come up before the courts several times, it is unlikely to successfully challenge the same.  Once it is omitted or repealed, difficulties would arise if after experimenting on the changed form of adjudication, it is later felt or desired to have a Tribunal with a modified or changed jurisdiction or even if it is felt that the system of adjudication by a Tribunal as in the Act of 1956 would be better.

8.11.6 Article 131 is subject to the provisions of the Constitution.  It may be noticed that article 262(2) is only an enabling provision and Parliament is not bound to enact a legislation constituting a Tribunal. A parliamentary legislation is sufficient to substitute the forum of the Supreme Court to the Tribunal. No amendment to the provisions of the Constitution may be required. This will enable Parliament to change the law, from time to time, as it may deem fit and proper by resorting to its power under article 262.

8.11.7 The Commission feels that as river water disputes being important disputes between two or more States and/or the Union, they should be heard and disposed by a bench of not less than three Judges and if necessary, a bench of five Judges of the Supreme Court for the final disposal of the suit.

8.11.8  Appropriate provisions may be made as envisaged by article 145(1) in consultation with the Supreme Court or if the Supreme Court so opts to provide for the same by the Supreme Court Rules to appoint Commissioners or Masters and to have the evidence recorded not by the Supreme Court itself but by the Commissioners or Masters so that the precious time of the Supreme Court is saved.

8.11.9   While a more radical suggestion has been made to place all the inter-State rivers under the jurisdiction of an authority appointed to administer them in national interest by law enacted by Union Parliament, it is a fact that in relation to regulation and development of inter-State waters, the River Boards Act, 1956 has remained a dead letter. Further, as and when occasions arose, different River Boards have been constituted under different Acts of Parliament to meet the needs in a particular river system according to the exigencies, facts and the circumstances. The Commission, therefore, recommends that appropriate Parliamentary legislation should be made for repealing the River Boards Act, 1956 and replacing it by another comprehensive enactment under Entry 56 of List I.  The new enactment should clearly define the constitution of the River Boards and their jurisdiction so as to regulate, develop and control all inter-State rivers keeping intact the adjudicated and the recognized rights of the States through which the inter-State river passes and their inhabitants. While enacting the legislation, national interest should be the paramount consideration as inter-State rivers are ‘material resources’ of the community and are national assets.  Such enactment should be passed by Parliament after having effective and meaningful consultation with all the State Governments.

 

Inter-State Council

8.12.1  Article 263 provides a mechanism for resolving problems by collective thinking, persuasion and discussion through a high level coordinating forum, namely the inter-State Council. In view of frequent friction between the Union and the States and between the States, the article has become more relevant.  Article 263 empowers the President to establish an Inter-State Council at any time if it appears to him that the establishment of such a Council would serve the public interest. The Council could be charged with the duty of - (a) inquiring into and advising upon disputes which may have arisen between States;(b) investigating and discussing subjects in which some or all of the States, or the Union and one or more of the States, have a common interest; or (c) making recommendations upon any such subject and, in particular, recommendations for the better coordination of policy and action with respect to that subject.

8.12.2        An Inter-State Council was established in 1990 but it met for the first time in 1996. Under the States Reorganization Act, 1956 five zonal Councils were set up. Besides this, North-Eastern Council has been setup under the North-Eastern Council Act, 1971.

8.12.3  The Commission observes that article 263 has vast potential and the same has not yet been fully utilized for resolving various problems concerning more than one State. Of late, it has been observed that where a treaty is entered into by the Union Government concerning a matter in the State List vitally affecting the interests of the States no prior consultation is made with them. The forum of inter-State Council could be very well utilized for discussion of policy matters involving more than one State and arriving at a decision expeditiously. The Commission issued a consultation paper on “constitutional mechanism for the settlement of inter-State disputes” and elicited opinion of the general public. The responses were most helpful.

8.12.4 The Commission, while endorsing the recommendations of the Commission on Centre-State Relations (Sarkaria Commission), recommends that in resolving problems and coordinating policy and action, the Union as well as the States should more effectively utilize the forum of inter-State Council. This will be in tune with the spirit of cooperative federalism requiring proper understanding and mutual confidence and resolution of problems of common interest expeditiously.

Treaty Making

8.13.1  Entering into treaties and agreements with foreign powers is one of the attributes of State sovereignty. No State can insulate itself from the rest of the world whether it be in the matter of foreign relations, trade, commerce, economy, communications, environment or ecology. The advent of globalization and the enormous advances made in communication and information technology have rendered independent States more inter-dependent.

8.13.2        Article 246 (1) read with Entry 14 of List I- Union List of the Seventh Schedule empowers Parliament to make laws with respect to “entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries”. As per the provisions contained in article 253, Parliament has, notwithstanding anything contained in article 245 to 252, power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.  This article (article 253), therefore, overrides the distribution of legislative powers provided for by article 246 read with Lists in the Seventh Schedule to the Constitution. 

8.13.3The Commission recommends that for reducing tension or friction between States and the Union and for expeditious decision-making on important issues involving States, the desirability of prior consultation by the Union Government with the inter-State Council may be considered before signing any treaty vitally affecting the interests of the States regarding matters in the State List.

 E - Executive 

Office of Governor

8.14.1  The Commission had issued a consultation paper with a questionnaire on the office of the Governor for eliciting public opinion.  The issues raised and the suggestions made in the consultation paper related to amending articles 155, 156, 200 and 201 with a view to entrusting the selection of Governors to a Committee, making the five-year term a fixed tenure, providing for removal only by impeachment and limiting his powers in the matter of giving assent to Bills and reserving them for the consideration of the President.

8.14.2  After carefully considering the public responses and after full deliberations, the Commission does not agree to dilute the powers of the President in the matter of selection and appointment of Governors.  However, the Commission feels that the Governor of a State should be appointed by the President, after consultation with the Chief Minister of that State.  Normally the five year term should be adhered to and removal or transfer of the Governor should be by following a similar procedure as for appointment i.e. after consultation with the  Chief Minister of the concerned State.

8.14.3   The Commission recommends that in the matter of selection of a Governor, the following matters mentioned in para 4.16.01 of Volume I of the Sarkaria Commission Report should be kept in mind:

v     He should be eminent in some walk of life.

v     He should be a person from outside the State.

v     He should be a detached figure and not too intimately connected with the local politics of the State.

v     He should be a person who has not taken too great a part in politics generally, and particularly in the recent past.

In selecting a Governor in accordance with the above criteria, the persons belonging to the minority groups should continue to be given a chance as hitherto.

 

Assent of the President and Governors

 

8.14.4   There should be a time-limit - say a period of six months – within which the Governor should take a decision whether to grant assent or to reserve a Bill for consideration of the President. If the Bill is reserved for consideration of the President, there should be a time-limit, say of three months, within which the President should take a decision whether to accord his assent or to direct the Governor to return it to the State Legislature or to seek the opinion of the Supreme Court regarding the constitutionality of the Act under article 143. 

8.14.5              In Jamalpur Gram Panchayat - Vs. Malwinder Singh -  AIR 1985 SC 1394, the Supreme Court held that if the assent of the President were sought  to the law for a specific purpose, the efficacy of the assent would be limited to that purpose and cannot be extended beyond it.  The court held that if the assent is sought and given, in general terms so as to be effective for all purposes, different considerations might arise.  In the case before the Supreme Court case the assent was given by the President for giving protection to the legislation under article 31 (as it then stood) and article 31A and the court held that such assent would not operate for the purposes of article 254(2) of the Constitution.  However, the court upheld the law passed by the State Legislature on the ground that it fell under entry 18 of the State List and not entry 41 of the Concurrent List.

8.14.6              It is felt desirable that a suitable amendment should be made in the Constitution so that the assent given by the President should avail for all purposes of relevant articles of the Constitution.  It would be inappropriate to drag the assent of President into such arguments.  From the time the Bill is introduced till the assent of President is given, the whole procedure and proceedings are legislative in character.  It is a collective action of the President, the House of the People, and the Council of States.  It is not permissible to enquire as to how the mind of each member of the House and the President worked during the entire proceedings beginning with the introduction of the Bill and concluding with the according of assent by the President.  The procedures are "certainly internal matters which are beyond the jurisdiction of the court to inquire into."  The court is entitled to go into the questions as to whether the enactment is either ultra virus or unconstitutional.  The assent of the President is not justiciable.  See AIR 1983 SC 1019 at 1048 para 88 - M/s Hoechst Pharmaceuticals Ltd. Vs. State of Bihar and others.  Even if noting sent to the President by the concerned Ministry does not reflect all the articles in the Constitution, which referred to  the effect of the assent of the President i.e. articles 31A, 31C, 254,  it cannot be presumed that the President was not aware of or did not bear in mind, the relevant articles dealing with the effect of the assent of the President.   However, it is desirable that when a Bill is sent for the President's assent, it would be appropriate to draw the attention of the President  to all the articles of the Constitution, which refer to the need for the assent of the President to avoid any doubts in court proceedings.

8.14.7              A suitable article should be inserted in the Constitution to the effect that an assent given by the President to an Act shall  not be permitted to be argued as to whether it was given for one purpose or another.  When the President gives his assent to the Bill, it shall be deemed to have been given for all purposes of the Constitution.

8.14.8              It is recommended that the following proviso may be added as second proviso to article 111 of the Constitution:

"Provided further that when the President declares that he assents to the Bill, the assent shall be deemed to be a general assent for all purposes of the Constitution."

Suitable amendment may also be made in article 200.

 

Failure of Constitutional Machinery

 

8.15.1     The Constitution of a country – or, for that matter, any enactment containing important and far-reaching provisions – is expected to provide for situations where circumstances arise, in which those provisions cannot be worked in strict conformity with the constitutional or statutory text, as applicable in normal circumstances. In India, the specific topic of failure of constitutional machinery in the States is dealt with, in three articles of the Constitution – articles 355 to 357 and 365 – of which, article 356 is the one most talked about and subject of controversy allegedly on grounds of having been frequently misused and abused.  

8.15.2     It is important that article 356 is read with the other relevant articles viz. articles 256, 257, 355 and 365.  Insofar as article 355 also inter alia speaks of the duty of the Union to protect the State against external aggression and internal disturbance and to ensure that the government of the State is carried on in accordance with the Constitution, it is obvious that article 356 is not the only one to take care of a situation of failure of constitutional machinery.  The Union can also act under article 355 i.e. without imposing President's rule.  Article 355 can stand on its own.  Also, Union Government can issue certain directions under articles 256 and 257.    While article 356 authorises the President to issue a proclamation imposing President's rule over a State if he is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution, article 365 says that where a State fails to comply with Union directions (under articles 256, 257 and others) "it shall be lawful for the President to hold that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution".  The scheme of the Constitution seems to clearly suggest that before rushing to issue a proclamation under article 356, all other possible avenues should be explored and as Dr. Ambedkar said, article 356 should be used only as a matter of last resort.  It should first be ensured that the Union had done all that it could in discharge of its duty under article 355, that it had issued the necessary directions under articles 256-257 and that the State had failed to comply with or give effect to the directions.

Use-misuse of Article 356

8.16    Since the coming into force of the Constitution on 26 January 1950, article 356 and analogous provisions have been invoked 111 times.   According to a Lok Sabha Secretariat study, on13 occasions the analogous provision namely section 51 of the Government of Union Territories Act 1963 was applied to Union Territories of which only Pondicherry had a legislative assembly until the occasion when it was last applied.  In the remaining 98 instances the article was applied 10 times technically due to the mechanics of the Constitution in circumstances like reorganisation of the States, delay in completion of the process of elections, for revision of proclamation and there being no party with clear majority at the end of an election. In the remaining 88 instances a close scrutiny of records would show that in as many as 54 cases there were apparent circumstances to warrant invocation of article 356.  These were instances of large scale defections leading to reduction of the ruling party into minority, withdrawal of support of coalition partners, voluntary resignation by the government in view of widespread agitations, large scale militancy, judicial disqualification of some members of the ruling party causing loss of majority in the House and there being no alternate party capable of forming a Government.  About 13 cases of possible misuse are such in which defections and dissensions could have been alleged to be result of political manoeuvre or cases in which floor tests could have finally proved loss of support but were not resorted to.  In 18 cases common perception is that of clear misuse.  These involved the dismissal of 9 State Governments in April 1977 and an equal number in February 1980.  This analysis shows that number of cases of imposition of President’s Rule out of 111, which could be considered as a misuse for dealing with political problems or considerations irrelevant for the purposes in that article such as mal-administration in the State are a little over 20.  Clearly in many cases including those arising out of States Reorganisation it would appear that the President's Rule was inevitable.  However, in view of the fact that article 356 represents a giant instrument of constitutional control of one tier of the constitutional structure over the other raises strong misapprehensions.

 

Sarkaria Commission

8.17    Chapter 6 of the Sarkaria Commission Report deals with emergency provisions, namely, articles 352 – 360.  The Sarkaria Commission has made 12 recommendations; 11 of which are related to article 356 while 1 is related to article 355 of the Constitution. Sarkaria Commission also made specific recommendations for amendment of the Constitution with a view to protecting the States from what could be perceived as a politically-driven interference in self-governance of States.  The underlined theme of the recommendations is to promote a constitutional structure and culture that promotes co-operative and sustained growth of federal institutions set down by the Constitution.

 

Should Article 356 be Deleted?

8.18     The Commission had issued a consultation paper along with a questionnaire with a view to elicit the views and responses of the public.  Large majority of the responses were against deletion of article 356 but favoured its being suitably amended to prevent misuse. There are three patent reasons which require the retention of the article:

(i)                  Article 356 and related provisions were regarded as a bulwark of the Constitution, an ultimate assurance of maintaining or restoring representative government in States responsible to the people.

(ii)                In a fairly large number of cases the invocation of article 356 has been found to have been not only warranted but inevitable.

(iii)               If this article is deleted, article 365 would lose relevance and use of article 355 in the absence of 356 might bring a drastic change in Union-State relations which may be worse from the point of view of both the States and the Union.

 

The Commission is, therefore, not in favour of deletion of article 356.

Need for Conventions

8.19.1 In considering the issues raised regarding article 356 the Commission found that a great part of the remedy to prevent its misuse lies in the domain of creating safeguards and constitutional conventions governing its use. The ultimate protection against the misuse of article 356 lies in the character of the political process itself.  The Commission is, therefore, for generating a constitutional culture that relies on conventions and treats them with same respect as a constitutional provision.

 

8.19.2 Article 356 has been lodged in the Constitution as a bulwark, a giant protection and a remedy  of the last resort.  The invocation of article 356 is a constitutional device, the operation of which is vested in the executive domain.  In invocation, it is therefore essential to preserve its stature in the constitutional scheme.  If the exercise of this power is perceived to yield to political expediency, it will greatly damage the majesty of the executive power and the federal balance.  The Commission, therefore, recommends, in the spirit of the framers of the Constitution, that article 356 must be used sparingly and only as a remedy of the last resort and after exhausting action under other articles like 256, 257 and 355.

8.19.3 It has been widely represented that the process of invocation of article 356 must follow the principles of natural justice and fair consideration.  This aspect also weighed heavily during discussions in the Constituent Assembly and the Chairman of the Drafting Committee had hoped that warning would be given to the errant States and they would be given an opportunity to explain their position. One other issue regarding the issue of such a warning is whether it should be made public or given wide publicity.  The Commission have considered this aspect very carefully and have come to the conclusion that taking this matter to the public domain at this stage may apparently allow for transparency but is likely to generate a great deal of heat in the political domain providing the anti-social forces a free play for social disharmony and violence. It may also encourage from the very outset a process of litigation that may apply continuous brakes in exercise of the executive responsibility.

8.19.4 The Commission feels that in a large number of cases where article 356 has been used, the situation could be handled under article 355 i.e. without imposing President's rule under article 356.  It is most unfortunate that article 355 has hardly been used.

8.19.5 In case of political breakdown, the Commission recommends that before issuing a proclamation under article 356 the concerned State should be given an opportunity to explain its position and redress the situation, unless the situation is such, that following the above course would not be in the interest of security of State, or defence of the country, or for other reasons necessitating urgent action. 

Situation of Political breakdown

8.20.1        One of the principal criticisms against the imposition of the President’s rule has been the unseemly hurry of Governors to recommend it - particularly in a politically conflicting context – without exploring all possibilities of having an alternative Government enjoying confidence of the House. Even while making such an exploration the Governors placed excessive reliance on their subjective satisfaction to ascertain majority support for one or the other political party by resorting to headcounts of supporters presented before them by the political parties.

8.20.2        The issue of determining the majority support of a political party in the House has been dealt with in the Rajamannar Committee Report, Sarkaria Commission and the Bommai judgement.  The Commission notes that the political events in a divisive context in several States have repeatedly shown tremendous speed and mobility of shifting political loyalties.  In such a situation the task that a Governor may impose upon himself to determine the majority support of one or the other party is indeed an onerous one.  The assessment of the Governor, no matter how carefully and objectively determined, can loose validity in no time in the climate of quick shifting sands of political loyalty.  It is, therefore, not a matter of subjective determination of the Governor or the President.  The constitutional requirement is that a Government should enjoy the confidence of the House and its open and objective determination is possible only on the floor of the House.  There may conceivably be exceptional circumstances and situations which are not conducive to hold the floor test.  The Commission is not, therefore, in favour of a static binding rule but would rely on a political and constitutional process in a constitutional forum for a valid determination of majority support for a particular party in the House.  The procedure suggested forms a part of the Bommai judgement and thus holds ground judicially.

8.20.3 The Commission recommends that the question whether the Ministry in a State has lost the confidence of the Legislative Assembly or not, should be decided only on the floor of the Assembly and nowhere else. If necessary, the Union Government should take the required steps, to enable the Legislative Assembly to meet and freely transact its business. The Governor should not be allowed to dismiss the Ministry, so long as it enjoys the confidence of the House. It is only where a Chief Minister refuses to resign, after his Ministry is defeated on a motion of no-confidence, that the Governor can dismiss the State Government.  In a situation of political breakdown, the Governor should explore all possibilities of having a Government enjoying majority support in the Assembly. If it is not possible for such a Government to be installed and if fresh elections can be held without avoidable delay, he should ask the outgoing Ministry, (if there is one), to continue as a caretaker government, provided the Ministry was defeated solely on a issue, unconnected with any allegations of maladministration or corruption and is agreeable to continue. The Governor should then dissolve the Legislative Assembly, leaving the resolution of the constitutional crisis to the electorate. 

8.20.4        The problem would stand largely resolved if the recommendations made in para 4.20.7 in Chapter 4 in regard to the election of the leader of the House (Chief Minister) and the removal of the Government only by a constructive vote of no-confidence are accepted and implemented. 

8.20.5  Clause (1) of article 356 contains the expression ‘or otherwise’.  Clearly, the satisfaction of the President, as regards the existence of the situation contemplated under article 356, flows from two streams.  It is immaterial that in most cases where article 356 had been invoked in the past it was on the basis of the report of the Governor.  Given the circumstances of global nexus in activities of terrorism, insurgency, lawlessness, the material flowing from the source “otherwise” than the report of the Governor is equally germane to the scheme of invoking this provision.  If, to meet with the desirable objective of transparency, as suggested by the Sarkaria Commission, the Governor’s Report is projected in the public domain by making it a speaking document and given wide publicity, it would raise serious problems in the discharge of the executive responsibility.  For purposes of publicity it would be difficult to differentiate between the Report of the Governor and the materials received “otherwise”.   The Commission recommends that normally President’s Rule in a State should be proclaimed on the basis of Governor’s Report under article 356(1).  The Governor’s report should be a “speaking document”, containing a precise and clear statement of all material facts and grounds, on the basis of which the President may satisfy himself, as to the existence or otherwise of the situation contemplated in article 356.

Constitutional Amendments

8.21.1  Article 356 has been amended 10 times principally by way of amendment of clause 356(4) and by substitution/omission of proviso to Article 356(5).  These were basically procedural changes.  Article 356, as amended by Constitution (44th Amendment) provides that a resolution with respect to the continuance in force of a proclamation for any period beyond one year from the date of issue of such proclamation shall not be passed by either House of Parliament unless two conditions are satisfied, viz:-

(i)                  that a proclamation of Emergency is in operation in the whole of India or as the case may be, in the whole or any part of the State;  and

(ii)                that the Election Commission certifies that the continuance in force of the proclamation during the  extended period is necessary on account of difficulties in holding general elections to the Legislative Assembly of the State concerned.

8.21.2        The fulfillment of these two conditions together are a requirement precedent to the continuation of the proclamation.  It could give rise to occasions for amendment of the Constitution from time to time merely for the purpose of this clause as happened in case of Punjab. Circumstances may arise where even without the proclamation of Emergency under article 352, it may be difficult to hold general elections to the State Assembly.  In such a situation continuation of President’s rule may become necessary.  It may, therefore, be more practicable to delink the two conditions allowing for operation of each condition in its own specific circumstances for continuation of the President’s rule.  This would allow for flexibility and save the Constitution from the need to amend it from time to time.

8.21.3 The Commission recommends that in clause (5) of article 356 of the Constitution, in sub-clause (a) the word “and” occurring at the end should be substituted by “or” so that even without the State being under a proclamation of Emergency, President's rule may be continued if elections cannot be held.

8.21.4 Whenever a proclamation under article 356 has been issued and approved by the Parliament it may become necessary to review the continuance in force of the proclamation and to restore the democratic processes earlier than the expiry of the stipulated period.  The Commission are of the view that this could be secured by incorporating safeguards corresponding, in principal, to clauses (7) and (8) of article 352. The Commission, therefore, recommends that clauses (6) & (7) under article 356 may be added on the following lines:

“(6)      Notwithstanding anything contained in the foregoing clauses, the President shall revoke a proclamation issued under clause (1) or a proclamation varying such proclamation if the House of the People passes a resolution disapproving, or, as the case may be, disapproving the continuance in force of, such proclamation.

(7)       Where a notice in writing signed by not less than one-tenth of the total number of members of the House of the People has been given, of their intention to move a resolution for disapproving, or, as the case may be, for disapproving the continuance in force of, a proclamation issued under clause (1) or a proclamation varying such proclamation:

(a)               to the Speaker, if the House is in session; or

(b)               to the President, if the House is not in session,

a special sitting of the House shall be held within fourteen days from the date on which such notice is received by the Speaker, or, as the case may be, by the President, for the purpose of considering such resolution.” 

Dissolution of Assembly

8.22.1 When it is decided to issue a proclamation under article 356(1), a matter for consideration that arises is whether the Legislative Assembly should also be dissolved or not. Article 356 does not explicitly provide for dissolution of the Assembly. One opinion is that if till expiry of two months from the Presidential proclamation and on the approval received from both Houses of Parliament the Legislative Assembly is not dissolved, it would give rise to operational disharmony.  Since the executive power of the Union or State is co-extensive with their legislative powers respectively, bicameral operations of the legislative and executive powers, both of the State Legislature and Parliament in List II of VII Schedule, is an anathema to the democratic principle and the constitutional scheme.  However, the majority opinion in the Bommai judgement holds that the rationale of clause (3) that every proclamation issued under article 356 shall be laid before both Houses of Parliament and shall cease to operate at the expiry of two months unless before the expiration of that period it has been approved by resolutions passed by both Houses of Parliament, is to provide a salutary check on the executive power entrenching parliamentary supremacy over the executive.

8.22.2 The Commission having considered these two opinions in the background of repeated criticism of arbitrary use of article 356 by the executive, is of the view that the check provided under clause 3 of article 356 would be ineffective by an irreversible decision before Parliament has had an opportunity to consider it.  The power of dissolution has been inferred by reading sub clause (a) of clause 1 of article 356 along with article 174 which empowers the Governor to dissolve Legislative Assembly.  Having regard to the overall constitutional scheme it would be necessary to secure the exercise of consideration of the proclamation by the Parliament before the Assembly is dissolved. 

8.22.3 The Commission, therefore, recommends that article 356 should be amended to ensure that the State Legislative Assembly should not be dissolved either by the Governor or the President before the proclamation issued under article 356(1) has been laid before Parliament and it has had an opportunity to consider it  

Miscellaneous Matters

Coorg Organisations

8.23.21 The Commission considered memoranda submitted by Coorgi organizations. While one wanted a seperate State or Union Territory status for Coorg, Corgis to the national cause and recommends that the Government may consider having a Sainik School and setting up a Development Board for them and also the demand for a University in Coorg. The Commissio did not favour the demand for a separate State or granting of Union Territory status for the area

Sindhi Organisations

8.23.2The Commission considered the representations made by various Sindhi organizations.  It was agreed that some of the grievances of the community were genuine and required action and it was not possible for the Commission to consider granting any separate constitutional status to the Sindhi community as such or to consider any request for carving out a separate territory as a Sindhi state or a Sindhi region.  However, the Commission recommends that steps may be taken for better protection of Sindhi language and culture by setting up a Centre of Sindhi Language and Culture with the State providing necessary facilities for the same.  The Commission recommends further that the difficulties faced by the Sindhi migrants may be examined and corrective measures taken to facilitate grant of citizenship as per the existing law.

Central Government Act 

Article 242 in The Constitution Of India 1949

 

242. Coorg Rep by the Constitution (Seventh Amendment) Act, 1956 , Section 29 and Schedule PART IX THE PANCHAYATS

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