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Published : July 27, 2010 | Author : drpremnath
Category : Constitutional Law | Total Views : 14908 | Rating :

  
drpremnath
Dr Prem Nath Associate Professor Deptt. of Laws Panjab University Chandigarh
 

Center’s Obligation towards State – with special reference to the state of J&K

“Unity in diversity” is an old theme of the political and cultural life of India. The strands in this theme are numerous and are woven into complex patterns. Yet if the scene is seen as a whole and steadily it becomes possible to unravel the strands and discern the basic realities and problems lying beneath the surface. The elements composing this theme can be identified. The factors pressing for unity in the past have been political organization as a single state, attempted under various Hindu and Muslim rulers and achieved during the British rule (the achievement was real despite the creation of Pakistan); the predominance of a single religious group, the English language; the establishment of communications; the freedom struggle; unity party rule; the leadership of Mr. Nehru; an indivisible economy and administrative unity emphasized sharply by the all India services. The elements providing diversity have been different languages, the presence of different religious and cultural groups, the emergence of different political parties and their success in different regions. The changing combinations of, and stresses on, these various elements provided the setting in which the theme of Centre State relations is enacted.[1]

Since the convention, the subject of union-state relation has been more and more under discussion. On the other hand there has been a demand for constitutional changes in the direction of giving greater autonomy to the states. Indeed the Raja Mannar Report has outlined a number of proposals basing itself on the theory that India should move towards making its constitution a traditional federation. On the other hand there have been happening all over India pointing to the need for country wide and unified action in regard to basic policies concerning agricultural development, industrial growth, ceiling laws, educational planning, interstate rivers, power grids and a number of other matters.[2] A unique feature of the Indian federal system is its ability to adopt itself to changing circumstances. This is in contrast with the general characteristic of rigidity associated with federal constitution. Normally, the Indian Constitution is meant to be federal. But under an emergency it can assume a unitary character. The process of changed-over does not involve any complications constitutional process.[3]

Under the Government of India Act, it was provided that certain provinces which are mentioned in this article 254 should be entitled to a certain sphere in the proceeds pf the export duty on jute and jute-products for the reason that jute forms a very important commodity in the economy of the provinces mentioned in this article. The proposal in the amended article is to do away with this right of certain provinces to claim a share in the export duty on jute and jute products. The reason, if I may say so, is a very simple one. Ordinarily all export and import duties belong to the central government and no province has any right to a share in the export duty levied on any particular commodity which, I said, happens to form an important commodity in the economy of that particular province. In view of the fact, however, that the finances of Bengal, particularly could not be balanced without a share in the export duty, an exception was made in the Government of India Act, 1935, whereby the Bengal Government and the other governments were given vested rights, so as to say, to claim a share in the export duty which, as I said, was contrary to the general principle that the export and import duties belong to the central government. It is now felt that this exception which was made in this Govt. of India Act 1935, should not be allowed to be continued hereafter. The realm why it is felt that this vicious principle should be perfectly possible to imagine that other province also who have certain commodities grown in their area and exported outside on which the government of India collects an export duty may also lay claim to a share in the export duty on those products. If that tendency developed it would be a very difficult position for the Government of India. Consequently, it has been decided that the principle should now definitely be abrogated. But it is equally clear that if that principle of sharing in the export duty was withdrawn suddenly, it might create a difficulty in balancing the budgets of the several provinces which were up to now dependent upon share in the export duty. Therefore, a provision is made that instead of giving specifically a share in the export duties an equivalent sum or such other amount as the President might determine made be made over or assigned to those provinces for the period the export duty continues to be levied or until the expiration of ten years, whichever is earlier. The latter is introduced in order to enable those provinces to get sufficient time to develop their resources so that after the period mentioned in this article they would be in a position to balance their budgets.[4]

There was no provision analogous to Article 355 either under the Government of India Act 1935 or in the Draft Constitution prepared by the Drafting Committee in February 1948. A request for inserting a provision like that of Art. 355 came from the Indian States. On the basis of provisions in federal constitution like those of USA, Australia and Switzerland it was argued that the Union should protect the state against external aggression and also protect it against domestic violence and insurrection. “This suggestion was apparently based on the apprehension of the persons than in charge of the government of the Indian states that pressure might be brought to bear on them by domestic forces, operating out side the Indian states, that is, in the then provinces to introduce domestic representative government in the Indian states and presumably any such pressure so that the Centre could be prevailed upon to deal with the pressure, if and when it manifest itself. The Drafting Committee agree to the suggestion but omitted the reference to request for invocation of central assistance against domestic violence omitted is not clear from the Constituent Assembly debates. One may conjecture that the framers might have guided by the American and Australian experience when in central investigation into the State affairs was necessitated even without the request from the State concerned.[5]
H.V. Kamath, speaking in the Constituent Assembly said,

The crucial point to my mind in this connection is that is internal disturbance and what is not. Will any petty riot or general melee or imbroglio in any state necessitate the President’s or the Union Government’s intervention in the internal affairs of that state. If honourable members turn to List II of the Seventh Schedule, they will find that item 1 lays the responsibility for public order (but not including the use of naval, military or air force in aid of the civil power) squarely on the shoulders of the state. That will be within the jurisdiction of the state. It is not in the concurrent list either. Public order has been made expressly a responsibility of the state government. Now the crux of the matter is this: You say that the state must maintain public order. But through a new article 277-A, you say that the Union government shall protect every state against internal disturbance. Let us be honest about what we are going to do. It is no use having mental reservation on this important point. If we are going whittle down provincial autonomy, let us say so in the Constitution. Let us make no bones about it. It is dishonest on our part to say in one article that public order shall be the responsibility of the state and then in another article to confer powers upon the Union government to intervene in the internal affairs of the state on the slightest pretext of any internal disturbance.

Therefore, with a view to removing this difficulty, I have moved my amendment No. 222 of List IV (Second Week). It seeks to substitute “internal insurrection or chaos” for internal disturbance. “Disturbance” is very wide and elastic term. A disturbance of the human organism may range from a little pain in the finger upto hyperpyrexia or coma. So also a disturbance within a state may range from two people coming to blows to a full-fledged insurrection leading perhaps to chaotic condition. What we are aiming of? Do we want to confer powers upon the Union government to see tat peace, order and tranquility in the state are not a jeopardized, or are we going to confer powers upon the Union government to intervene in the internal affairs of the state? I donot think that the latter is our objective. The preamble says that we are going to constitute India into a sovereign democratic republic. Dr. Ambedkar just now stated that the Federal scheme envisages the sovereignty of every state within the field which is allotted to it. List II of he Seven Schedule allots public order to the state. Now, this article seeks to divest, in howsoever small or large a measure, the state government of powers conferred upon it by the Seventh Schedule. If this article 277-A is adopted without much consideration by this House, I foresee the destruction of provincial autonomy, the subversion of provincial autonomy by the Union government, on the pretext of averting or quelling internal disturbance. If that is our objective, let us say so, and then let us pass this article. If we are not going to do it, it is our aim to promote provincial autonomy – no doubt the inevitability of gradualness comes in here – let us be the straight about it and let us provide as an interim measure, as a provision during the interregnum, during the transition we are passing through, during the dangerous and critical times that we are living in, let us amend this article by saying that only in the event of an insurrection or chaos shall the Union government be empowered to intervene in the internal affairs of the state, and not for any disturbance that might arise in the state. For that the state has ample powers at its disposal, the police force, the Raksha Dal and all sorts of other subsidiary forces. Can we not trust the state government to look after its own public peace and order to maintain tranquility within the borders of its own domains? Certainly I think that is the spirit of the Constitution which we are considering in the House and with that spirit in mind, let us no confer more powers upon the President and the Union government than are warranted by the facts or the contingencies on the possibilities of any situation that might arise in future.[6]

I have with regard to this matter moved three amendments, namely 220, 221, 222. The first is namely verbal, I thought that instead of the word “union” the words “Union Government” would be more appropriate, Article 1 says that India shall be a union of states. If we just say “Union” it may be vague and it may mean also the various authorities in the Union. Are they required to intervene and to meddle in the affairs of the state in case of internal disturbance or external aggression or to see that the government of state is carried on in accordance with the provisions of the constitution.

I quoted that day from Mr. Nagi Reddy’s statement to the students of Hyderabad preaching Mao’s theory, the theory of enemy No. 1 of this country, who stated that power flows from the barrel of the gun. Whether it is Kanu Sanyal or whether it is Jangol. Santhal or Kunikal Narayan and their activities and modus oprendi are no better than those of the dacoits operating in the ravines of Chambal valley[7]

The only difference is that the former have extra-territorial loyalty and have got inspiration from foreign countries and from the enemy of this country. It was the iron hand of Sardar Patel which put it down with the willing co-operation of the Travencore Ruler which smoothened the integration of the state in India. I request that this be examined from this aspect. As I pointed out the sending of the Central Reserve Police is justified. The economic condition is deteriorating because of the rise in prices and inflation for which the central government is primarily responsible. The wrong economic policies pursued for the last 20 years are responsible to bring this mess. Why should the state be penalized for this? Why should not the centre bear a portion of the burden in this regard.[8]

Now the question is who will bear the burden of expenditure of the emergency period. In the Constituent Assembly, during the debate on the draft article 277 Sh. V.S. Sarvade said,
“Now when the Central government takes upon itself certain duties which otherwise would have been done or executed by the provinces or states, then it is but natural and necessary that it should be provided with the necessary funds”. Therefore it follows that Art. 277 is a repersecution in the financial sphere.

Participating in the same debate, Pandit Hiday Nath Kunzen said “…it is changed in such a way as to arrive the province that their finances cannot suddenly be disorganized by any order of the President and that at the same time the position of the center is such as the enable it to discharge property its supreme responsibilities.[9]

The provision dealing with the proclamation of emergency under Art. 352 is covered by the first part of the duty of the Union towards a state mentioned in Art. 355, but the second part of that duty is somewhat of different and broader character and covers all steps which are enough to ensure that the gap of every state is carried out in accordance with the provisions of the constitution. It is this pat of duty which is roughly to be covered declamation.[10]

Kaila Shian J. of the Madras High Court in Karunanidhi V/S State of Tamil Nadu[11] observed as under:
“… Though under Article 355 it shall be the duty of the Union to protect every State against external aggression and internal disturbance, it was thought (that) a constitutional amendment was necessary to enable the Government of India to deploy armed forces to deal with the grave situation of law and order…”.

In Karunanidhi V/S State of Kerala the High Court observed:
It was contended that it is the duty of the Union government under Art 355 of the Constitution to issue a direction to the State government not to form the new district as its formation would lead to internal disturbance and may cause external aggression. Art. 355 runs as follows:

“It shall be the duty of the Union to protect every state against external aggression and internal disturbance and to ensure that the government of every state is carried on in accordance with the provisions of this Constitution. [12]
I do not think that the duty placed upon the Union government under the Article is justiciable in a court of law, as it is only a political duty. That a constitution may have many commands that are not enforced ably by courts because they fall outside the conditions and purposes that circumscribe judicial action is clear from the followed cases. Luther V/S Borden[13], Kentucky V/S Dennaision[14] and Pacific States Telephone and Telegraph Co.Case.[15] See also Art. 362 and 363 of the Constitution. The Constitution has left the performance of many duties in our government reforms to depend on the fidelity of the executive and legislative action and ultimately, on the vigilance of the people in exercising their political rights”… I do not think I can enforce the duty of the Union of India under Art. 355 even if it be assumed that there is such a duty in this case on the part of the Union by the issued of a writ of Mandamus.[16]
Chief Justice Beg in Union of India V/S State of Rajasthan observed:

The duality or duplication of organs of Government on the central and state levels did not reflect a truly federal demarcation of powers based on any separatist sentiment, which could threaten the sovereignty and integrity of Indian Republic to which the members of the Constituent Assembly seemed ardently devoted, particularly after an unfortunate division of the country with certain obviously disastrous results”.[17]
The Court further observed:

That the circumstances might arise during Bandh days, when a State government either cannot or will not render assistance to the Central authorities to enable the offices and departments to function normally or to protect the Central government’s property or its loyal personnel from intimidation and violence. In such an event it would be open to the Central Reserve Police Force as an armed force of the Union to intervene in order to protect Central government personnel and property. This would be so even though the intervention has the effect of indirectly supporting the maintenance of public order. It cannot be said that in such an even their action relates exclusively to a matter to which the executive power of the state alone extends. No doubt, entry of the state list speaks of Police entry, refers to public order but this is qualified by the word “but not including the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power”. Consequently, a part of public order is assigned to the use of the armed forces in aid of the civil power. The use of the words, “In aid of the civil power” does not necessarily imply that the Union can employ its armed forces in a State only at the request of the State government if, as in the circumstances stated above, it is a case wherein the state government is unwilling to interfere, even if there is no general break down of public order. This would not mean that the Union cannot employ its own armed forces for the purpose of maintaining and restoring public order if in its opinion aid should be given to the state forces.

Certain duties upon the Union government. Firstly, it should defend every constituent unit against any external aggression. Secondly, it should protect the state against internal disturbance, or I suppose Dr. Ambedkar and Drafting Committee means that the Union Government should prevent any internal disturbance from occurring in the state. Lastly, the duty is laid upon the Union government to see that the government of every state is carried on in acceptance with the provisions of this constitution. As regards the last, I am whole heartedly in agreement with that provision that the Union government should make it a point to see that every state honours and observe he Constitution in letter as well as in spirit. Also I have no quarrel with the provision regarding the defence of every constituent unit against external aggression. In any humble judgement, however, there is likely to be a difference of option as regards the middle provisions of protecting the state against internal disturbance.

It can also be urged that the Union like any other person has a right of private defence in respect of its own property. But if and when the armed forces of the Union are intervening in aid of the civil power, then clearly their activity cannot be confined only to the protection of the Union property. The strong arm of the national government may be put forth to brush away all obstructions to the freedom of inter-state commerce of the transportation of the mails. If the emergency arises, the army of the nation and all its militia are the service of the nation to compel obedience to its laws”.[18]

In the absence of the normal protection to its personnel and property which the Centre is entitled to expect from the State government the Union of India cannot at all function in the State and its armed forces would, therefore, have to intervene in its favour as observed by the US Supreme Court in re-Eugene Debs, 158, US.

On the basis of examination of the Constitutional scheme of distribution of resources between Union and the state and on the basis of operation of this scheme in practice, a learned author thinks that there are certain unmistakable trends. First, the central revenues were intended to be surplus. The state revenues were expected to be insufficient and they are insufficient to meet the growing state responsibility in the area of social service and welfare activities. Secondly, the confidence reposed by Constitution-makers in the Parliament that Parliament would hold certain taxing powers in trust for the benefit of the state has not proved to be well-founded. Parliament has failed to discharge its responsibility under Art. 269. Thirdly, due to insufficient devolution of revenues from centre to the states under the various modes devised by the framers of the Constitution, the States have to depend on discretionary grants by the center. Fourthly, chronic dependence of the States on Central revenue has also generated a sense of financial irresponsibility in the states. Fifthly, the Finance Commission has fulfilled the role expected of it. Sixthly, the whole thing has generated discontent among the States.[19]

In November 1845, war broke out between the Sikhs and the British at Sobraon. The Sikh nobles asked Gulab Singh to help and lead them. But Gulab Singh was not interested in helping the Sikhs to whom his allegiance formerly belonged. “Golab (Singh) (sic) urged the army not to attempt attacking the British until he joined them and this he evaded doing, on one pretext or another, knowing fully well that in due time the British would attack and capture the position at Sobraon”. By remaining aloof, Gulab Singh wanted to “earn the gratitude of the British diplomats”[20] and in this he was successful. He was all the time thinking of carving out of State for himself and so, when he was asked to become the Prime Minister of the Punjab, after the Sikhs were vanquished, he was delighted. Immediately after accepting the office, Gulab Singh put himself in touch with the British authorities. “Raja Gulab Singh, on being installed as Minister, put himself in communication with us, proffering every assistance in his power for the furtherance of any ends in regard to the State of Lahore which we might have in view”, wrote the Governor-General of India to the Secret Committee.[21] As a result of the negotiations between the defeated Sikhs and the British, the British Government demanded a war indemnity of Rupees one and a half-core. The British Government knew that the Sikh Darbar was not in a position to pay so much and was not disposed to enforce payment; the object was to weaken the Sikh Darbar, which was a constant menace. The plan was that “if the Sikh Durbar offer Cashmeer instead of the payment of 1½ million, to accept the offer, and transfer Cashmeer to Gulab Singh in payment of the compensation necessary”.[22] Lord Hardinge wrote to Lord Ripon, “a Rajpoot State independent of the Sikhs on the right flank of our Beas frontier would strengthen us and weaken the Sikhs – and this I consider most desirable”.[23] True to the British expectations, the Sikh Darbar offered to cede the terrorists between the River Beas and Sutlej in lieu of one crore of rupees and the British Government accepted this offer readily. On March 9,1846, was concluded the treaty of Lahore between the British and Raja Dhuleep Singh of Lahore. It was provided in this treat that Maharaja Dhuleep Singh of Lahore ceded to “the Honourable Company, in perpetual sovereignty, all this forts, territories, and rights in the Doab and country, hill or plain, situated between river Beas and Sutlej”. Among other things it was also provided in this treaty that “in consideration of the services rendered by Raja Golab Singh of Jammu to the Lahore State towards procuring the restoration of the relations of amity between the Lahore and British Government, the Maharaja (Dhuleep Singh) hereby agrees to recognize the independent sovereignty of Raja Golab Singh in such territories and districts in the hills as may be made over to the Raja Golab Singh by separate agreement between himself and the British Government…”.

Seven days after the conclusion of this treaty, another treaty was concluded between Raja Goulab Singh and the British Government on March 156, 1846 at Amritsasr. By this Treaty of Amritsar – notoriously referred to in the State of Jammu and Kashmir as the ‘Sale Deed of Kashmir – the British Government made over to Raja Gulab Singh the State of Jammu and Kashmir. By Article I of the Treaty, Kashmir was made over “for ever and in independent possession of Maharaja Golab Singh and the heirs male of his body”. Article III of the Treaty reads:

“In consideration of the transfer made to him and his heirs by the provisions of the foregoing articles, Maharaja Golab Singh will pay to the British Government the sum of Rupees (Nanukshahee) fifty lakhs to be paid on ratification of this treaty and twenty-five lakhs on or before the first October of the current year, A.D. 1846”.[24]

And so, for a total sum of Rupees seventy-five lakhs was sold to Maharaja Gulab Singh, an area of 84.471 sq. miles and 2½ million people. This transaction between the British Government and Gulab Singh has been a subject of great controversy. Maharaja Hari Singh the ruler of Jammu and Kashmir in 1947 was the son of Gulab Singh.

In conclusion it is submitted with respect that the state of Jammu & Kashmir facing countries (Bangladesh, Pakistan & China, also the state of J & K) is fighting with the terrorism from the last many years. Also the source of income of the state is very small. Being a hilly state it lacks of the means of transport and communication. The people of Kashmir are very poor. Moreover, there is large scale unemployment and youth of this state are easily lured by Terrorist organizations. Though the central government is providing goods at subsidies rates but it is useless as when the people have no money to buy the goods. So the Art. 355 impose a duty on the centre to protect the state from external aggression and in internal disturbance. So firstly the centre should bear of the expenditure on forces. Second, state should provide funds to improve the means of transport like roads and communication. Also funds should be provided to state to fight the unemployment by creating means of employment so that the youth are saved from the target of terrorists organizations and for the peace and law order in the state.
--------------------------------------------------------------------------------
[1] Jain, S. N. and Others, The Union and the States, 1st Edn. 1972, p. 2.
[2] Stalvad, M.C., The Union and the States, (a forward note),
[3] Basu, D. D., “Constitution of India”, 2nd edn. 1952, p. 798.
[4] Lok Sabha Debates, 1949, Vol. IX, 8 August 1949, pp. 242-43.
[5] Prasad Anirudh, Centre-State Relations in India, Ist Ed. 1985, pp.233-34.
[6] Constituent Assembly Debates, Vol. IX, 3 August 1949, pp.136-139.
[7] Ibid.
[8] Ibid., p. 302.
[9] Constituent Assembly Debates, 1949, Vol. IX, 20 August, 1949, p. 517.
[10] Under Art. 356, AIR 1977, SC 136, State of Rajasthan V/S Union of India.
[11] AIR 19.
[12] AIR 1969, Kar. L.T., 696.
[13] L & D 581
[14] Ibid., 717.
[15] Ibid., p.118, see Also Art. 362 & 363 of the Constitution.
[16] AIR 1969, Ker. L.T. 696. Karunanidhi V/S State of Kerala.
[17] Beg, C. J., AIR 1977, SC 1361 at 1382.
[18] Ibid., p. 293-94, P. Govinda Menon, Minister of Law and Social Welfare, G 9.
[19] Gupta U. N., Indian Federation and Unity of Nation, Ist Edn., 1988, p. 295.
[20] Bazaz, P. N., The History of Struggle for Freedom in Kashmir, New Delhi, 1954, p.122.
[21] Letter from the Governor-General of India to the Secret Committee, dated 19 February 1846, Ripon Papers, British Museum Add. MSS 40875 (Unpublished).
[22] Hardinge to Ripon, 19 February, 1846, Ripon papers, Add. MSS 40875.
[23] Ibid.
[24] Anand, Justice Adursh Sein. The Constitution of Jammu and Kashmir. p. 10-12

Authors contact info - articles The  author can be reached at: drpremnath@legalserviceindia.com




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