INTER- STATE COUNCIL- AN UNDERUTILIZED CONSTITUTIONAL BODY FOR PARTING DIFFERENCES BETWEEN CENTRE AND STATE

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INTRODUCTION

Part- XI (Article- 245 to 263) of the Indian Constitution enshrines relations between the Union and States comprising of Administrative as well as Legislative Relations[1]. The Articles explicitly demarcates the boundaries up to which the Union and State(s) can exercise their control[2], but irrespective of the facilitation that has been provided by the Constitution[3], there have been plenty of instances in history where the Union and the State have stood locking horns against each other in administrative as well as in legislative set up[4].

The framers of our Constitution provided an institutional framework for resolving such difference in opinion between Union- State(s), State- State by granting aid in the form of Article- 262 and Article- 263 of the Constitution. While the former is regarding adjudication of disputes relating to water of Inter- State rivers or river valleys, latter is with respect to and Inter- State Council[5].

ARTICLE- 263: THE ESTABLISHMENT OF INTER- STATE COUNCIL

This very provision finds its genesis in Article-135 of the Government of India Act, 1935[6] which is regarding setting up of an Inter- Provincial Council. The Article- 263 that finds its place in the 1950 Act read as follows-

 Provisions with respect to an inter State Council– If any time it appears to the President that the public interests would be served by the establishment of a Council charged with the duty of

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

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

(c) making recommendations upon any such subject and, in particular, recommendations for the better co-ordination of policy and action with respect to that subject, in shall be lawful for the President by order to establish such a Council, and to define the nature of the duties to be performed by it and its organisation and procedure[7] 

The opening words i.e. “if any time” clearly expresses that the Constitution envisages this body to be constituted from time to time in the form of an ad- hoc council that is not at all permanent in character and is constituted when such council becomes a necessity in the opinion of the President to serve the public interest. Secondly, the functions of such Inter- State Council shall comprise of conducting an inquiry, investigation, discussion and giving advice upon disputes for better- co- ordination among the States and the Union. The nature of the work that has been allotted to this body is recommendatory in nature and is purely non- binding in character.

The power to constitute a council for better co- ordination in the federal set up has been used for the establishment of Central Council of Health in 1952, Central Council of Local Government and Urban Development in 1954, 5 Zonal Councils in 1956 and the Council for Sales Tax and State Excise Duties in 1968.

RECOMMENDATIONS OF SEVERAL COMMISSIONS CONSTITUTED IN THE PAST

The first commission that laid certain recommendatory remarks against the provision regarding Inter- State Council was the 1st Administrative Reform Commission that came up with its report in the year 1969[8].

However, the first Inter- State Council was set up late through a Presidential Order in the year 1990 which was totally based on the recommendations that were given by the Sarkaria Commission in the year 1988[9]. The Commission too opined that prior to 1967 there existed one party system in the Country as a result of which the differences inside the party was solved in the Party meeting through discussion, but post- 1967 there have been more and more parties emerging at regional level, as a consequence of which a permanent body like that of Inter- State Council is the need of the hour.

The 2nd Administrative Reform Commission[10] that was constituted in the year 2005 under the chairmanship of Mr. M. Veerappa Moily with the mandate to suggest measures to achieve a proactive, responsive, accountable, sustainable and efficient administration for the country at all levels of the Government on the one hand stuck to the belief that such councils should not be established on a permanent basis but on the other hand also recommended that the Council set up under Article- 263 shall be given the conflict resolution jurisdiction as well  along with the task of co- ordination among Centre- State relations.

The Punchhi Commission under the chairmanship of Justice Madan Mohan Punchhi (former Chief Justice of India) in its report of 2010[11] too laid down certain recommendations for proper and efficient functioning of the Inter- State Council, the concern of the commission was majorly on the irregularities that still persist in the business of the Council, the non- binding character of the recommendations and re- emphasised on the recommendations that were given by 2nd Administrative Reform Commission concerning the dispute resolution mechanism role of the Council.

The Inter- State Council was again reconstituted by the Government of India along with the Standing Committee to it, recently in the year 2019[12] which comprised of the Prime Minister as its chairman, Chief Ministers of all states, Chief Ministers of Union Territories having a legislative assembly and Administrators of Union Territories not having assemblies, and in situation Article- 356 has been proclaimed then Governor of such State as its members, Union Minsters, and some of them as Permanent Invitees[13]. Till date, about 11 meetings have taken place in this Council, the recent one being held in the year 2016 after a gap of 10 years, there were purely 4-5 agendas that were discussed in the meeting but the one that was an influential one was to consider the recommendations that were laid down by the Punchhi Commission in 2010[14].

INTER- STATE COUNCIL: A LEGAL PATHWAY TO COLLABORATE AND NOT TO COMPROMISE

In the recent times, the Union and the State Government have at multiple times on multiple issues have found themselves to be contrary to each other as a result of which circumstances leading to conflict have developed between the two constitutional bodies[15] and in most of the cases the tendency of the State Governments have been to take the aid of the Apex Court under its original jurisdiction[16]. Article- 131 of the Constitution gives the power to the Supreme Court to adjudicate on the disputes that arise between the Centre- State, State- State and Centre- State(s). But it is a matter of fact that our Courts form the time that it has been constituted have been overburdened with the amount of cases that are filed or have been filed in the past. As a consequence of which, the Parliament have delegated certain adjudicatory powers to the quasi- judicial institutions like Tribunals, Central as well as State Commissions, Ombudsman etc.[17]

Since in contemporary times there has been a hike in the number of disputes that arose between the Centre and the State (State shares of GST pending with the Centre, NRC- CAA, Conflict regarding 3 Farm Laws, Lack of proper co-ordination in prevention of COVID- 19 in India etc.), a permanent body under Article- 263 with its primary objective to resolve the differences between the Union and the States is the need of the hour[18]. The Council that is formed under this very provision has only limited powers with respect to inquiry, investigation and discussion, along with the power to given recommendations that prove to be non- binding[19].

This body can play a massive role in resolving the tensions between the Governments at various levels as the kind of role that has been provided to this body under Article- 263 is that of Mediation & Conciliation Centre and the positives of this dispute mechanism is that it emphasises on the communication between the parties and in certain cases where the communication is zero it aims to establishes a healthy environment of dialogue among them, secondly the motto of mediation practice is to reserve the relations and put a full stop to the issue at an early stage when there exists difference between the parties and prevent such issue to reach the stage of dispute/ conflict. This process from the initial stage attempts to move the respective parties from their positions to their interests with due assistance from the mediators.

INTER- STATE COUNCIL: A CONSTITUTIONAL BODY TO ACHIEVE CO- OPERATIVE FEDERALISM

In the past, recommendations as mentioned above have been made by the various commissions to grant adjudicatory functions to the Inter- State Council and make the recommendations that are made by it binding, make the scope of the Council inclusive so that it may act as an effective facilitator to resolve the issues to serve the public interest. The scope of this Council should be made broad enough so as to prevent the number of cases that reach the Supreme Court or create chaos among the general public. As opined by the Punchhi Commission that the proposal to make the recommendations binding can proved to be problematic as the Centre as well as the State Government is sovereign in its respective territory and making it binding on them may prove to be encroaching upon their domain[20].  

The Inter- State Council (ISC) as established by the Presidential Order of 1990, comes on a final decision through consensus and on such consensus the decision of the Chairman (Prime Minister) shall be final, and the Secretariat of such council is also appointed by the Chairman as it thinks fit[21]. These two characteristics along with the will of the President to constitute it when he thinks fit, gives us a clear image of total centralisation of power with the Union and the States de- facto being mere members with no powers of any character with them.

To establish a system of Co- operative Federalism in India, that was one of the agenda of the 11th meeting of ISC, the initiative should be taken firstly by reconstituting an Inter- State Council by amending the provisions of Article- 263 and establishing it as a permanent body with due consultation with the State Governments.

  • It should be reconstituted as a quasi- judicial body that derives its rights and duties from a separate statute and gives recommendations although not binding to the Government but attains binding character once a quota of recommendations have not been accepted by a Government in a year.
  • The members shall be appointed on the basis of eligibility criteria as set up after due consultation with the States, and shall comprise of officers from both the Union and States for a time duration of 5 years.
  • In case, the decision of the Council proves to unsatisfactory to any of the parties they have a right to approach the Supreme Court under Article- 131 of the Indian Constitution.

CONCLUSION

The idea that was originally the driving force behind having proper set- up for Centre- State relations was that Indian Governance shall be federal in nature with the Centre just acting as a supervisor for good governance[22], but the events (Partition of India, Kashmir Issue, Extremists activities in North East) that followed changed the entire scenario of that time as a consequence of which the Constituent Assembly drifted its way towards the idea of having a strong Centre, institutions like Inter- State Council totally fits under the characteristic of a strong Centre where decision making is purely with the Union and the States de- facto are for name sake.

In the contemporary times to achieve Good Governance, co-operation as well as collaboration in any field of life is necessary to do good, the Council can prove to be an initiative for achieving that ideal relationship between the Centre- State and State- State.

 At last the author intended to borrow some lines from the Punchhi Commission Report, 2010-

Federalism is a living faith to manage diversities and it needs to be supported by institutional mechanisms to facilitate co-operation and co-ordination among the Units and between the Units and the Union[23].


[1]The Constitution of India

[2] T.C.A. Srinivasavaradan, “Federal Management” 28 Journal of Indian Law Institute 169 (1986).

[3] Legal Service India, available at: http://www.legalservicesindia.com/article/2245/Quasi-Federal-Nature-of-IndianConstitution.html#:~:text=According%20to%20KC%20Wheare%2C%20in,nature%20and%20not%20strictly%20federal.&text=Basu%2C%20the%20Constitution%20of%20India,is%20a%20single%20united%20nation. (last visited February 6, 2021).

[4] SR Bommai v. Union of India (1994) 3 SCC 1

[5] Alice Jacob, “Centre- State Governmental Relations in the Indian Federal System” 10 Journal of Indian Law Institute 583 (1968); mint, available at: https://www.livemint.com/Opinion/c9OZI4C1jO0sBdWLDbfGmJ/The-interstate-council-needs-to-be-rejuvenated.html (last visited February 6, 2021).

[6] Government of India Act, 1935, art. 135.

[7]The Constitution of India, art. 263

[8]Inter- State Council Secretariat, India, available at: http://interstatecouncil.nic.in/first-administrative-reforms-commission/ (last visited on February 7, 2021)

[9]Inter- State Council Secretariat, India, available at: http://interstatecouncil.nic.in/wp-content/uploads/2015/06/CHAPTERIX.pdf (last visited on February 7, 2021)

[10]Inter- State Council Secretariat, India, available at: http://interstatecouncil.nic.in/wp-content/uploads/2015/06/capacity_building.pdf (last visited on February 7, 2021)

[11]Inter- State Council Secretariat, India, available at: http://interstatecouncil.nic.in/wp-content/uploads/2015/06/volume1.pdf (last visited on February 7, 2021)

[12] Editorial, “Inter- State Council reconstituted with Prime Minister as Chairman” The Economic Times, Aug. 14, 2019.

[13]Inter- State Council Secretariat, India, available at:  http://interstatecouncil.nic.in/wp-content/uploads/2019/08/The-Gazette-of-India.pdf (last visited February 8, 2021)

[14]Inter- State Council Secretariat, India, available at: http://interstatecouncil.nic.in/isc-meetings/  (last visited February 8, 2021)

[15] M Gautham Machaiah, “Activate Inter- State Council” Deccan Herald, Jan. 30, 2020.

[16]The Constitution of India, art. 131.

[17] The Constitution of India, art. 323- A, 323-B.

[18] Dabur India Ltd v. State of Uttar Pradesh 1990 (4) SC 113

[19] Union of India and Others v. Valluri Basavaiah Chowdhary and Others (1979) 3 SCC 324

[20]Inter- State Council Secretariat, India, available at: http://interstatecouncil.nic.in/wp-content/uploads/2015/06/volume1.pdf (last visited February 8, 2021)

[21]Inter- State Council Secretariat, India, available at:  http://interstatecouncil.nic.in/wp-content/uploads/2016/08/gazette_1.pdf (last visited February 8, 2021)

[22] State of West Bengal v. Union of India AIR 1963 SC 1241

[23]Inter- State Council Secretariat, India, available at: http://interstatecouncil.nic.in/wp-content/uploads/2015/06/volume1.pdf (February 8, 2021)

Author: Aniket Rai, U.P.E.S. Dehradun

Editor: Kanishka VaishSenior Editor, LexLife India.

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