17. Polity Notes 32

Based on the provided topic summary, here are the detailed academic notes in the requested format.

Elaborate Notes

The Governor’s Role in Centre-State Relations

The office of the Governor has been a focal point of friction in Centre-State relations, primarily concerning the exercise of discretionary powers. The Constitution of India envisages the Governor as the constitutional head of the state executive and a vital link between the Union and the States. However, this dual role has often led to accusations of the Governor acting as an agent of the central government.

1. Imposition of President’s Rule (Article 356)

The Governor’s recommendation for the imposition of President’s rule under Article 356, based on a report of the failure of constitutional machinery, is a significant discretionary power that has been frequently misused.

• Historical Context: Dr. B.R. Ambedkar, in the Constituent Assembly debates, had hoped that Article 356 would remain a “dead letter,” to be used only in the rarest of rare cases. However, it has been invoked over 100 times, often on partisan grounds.
• The Uttarakhand Case (2016):
  • A political crisis emerged when a faction of the ruling party MLAs rebelled against the Chief Minister. On the day of the budget vote, the Speaker declared the budget passed by a “voice vote” despite the opposition and rebel MLAs demanding a division (recorded voting). The house was then adjourned sine die.
  • The Governor sent a report to the Centre citing a breakdown of constitutional machinery. The Union Cabinet recommended President’s rule, which was imposed.
  • The Supreme Court intervened, quashing the President’s rule. The Court observed that the floor of the Assembly is the only place to test a government’s majority. Critically, the Court stated that allegations of corruption against the Chief Minister cannot be grounds for determining a breakdown of constitutional machinery.
• The Arunachal Pradesh Case (Nabam Rebia and Bamang Felix vs Deputy Speaker, 2016):
  • The Governor advanced the Assembly session without consulting the Chief Minister and his Council of Ministers, an action intended to facilitate a no-confidence motion against the government. This led to a constitutional crisis and the eventual imposition of President’s Rule.
  • The Supreme Court delivered a landmark judgment, restoring the previous government. The Court emphatically stated that the Governor is a “constitutional office” and not an agent of the central government. The judgment clarified that the Governor’s discretionary powers are not absolute and must be exercised within the bounds of the Constitution. The Court famously observed that the “Governor is not an ombudsman for the state government.”

2. Misuse of Discretionary Powers in Government Formation

The Governor’s discretion in appointing a Chief Minister under Article 164 becomes critical in the event of a hung assembly. The lack of codified conventions has led to inconsistent and politically motivated decisions.

• M. M. Punchhi Commission (2010) Recommendations: To bring clarity and fairness, the Punchhi Commission on Centre-State Relations provided a clear order of precedence for the Governor to follow when inviting a leader to form the government:
  1. The group with a majority in the house (pre-poll alliance).
  2. The single largest party which stakes a claim and is in a position to command a majority.
  3. A post-electoral coalition with all partners joining the government.
  4. A post-electoral alliance with some parties joining the government and others providing outside support.
• Case Studies of Misuse:
  • Karnataka (2018): Following a fractured verdict, the BJP emerged as the single largest party but fell short of a majority. The Governor invited the BJP to form the government and granted an unusually long period of 15 days to prove its majority. The opposing Congress-JD(S) post-poll alliance approached the Supreme Court. In G. Parameshwara v. Union of India (2018), the SC, while not questioning the Governor’s initial discretion, curtailed the time for the floor test to 48 hours, effectively preventing horse-trading.
  • Goa (2017): The Congress emerged as the single largest party. However, the Governor invited a post-poll coalition led by the BJP, which had fewer seats, to form the government. The decision was justified on the grounds that the BJP-led coalition demonstrated majority support. This was in contrast to the precedent often followed of inviting the single largest party first.
  • Maharashtra (2019): After a pre-poll alliance of BJP and Shiv Sena won a majority, they fell out over power-sharing. In a dramatic early morning ceremony, the Governor swore in a BJP Chief Minister with support from a breakaway NCP faction, without transparently verifying the letters of support. This government collapsed within days.

3. Discretion in Passing of Bills (Article 200)

The Governor’s powers concerning bills passed by the state legislature (assent, withhold, return for reconsideration, or reserve for the President’s consideration) have also been a source of conflict.

• Pocket Veto: By neither assenting nor returning a bill, the Governor can effectively stall legislation indefinitely. The Constitution does not prescribe a time limit for the Governor to act.
• Recent Controversies:
  • Telangana (2023): The Telangana government approached the Supreme Court against the Governor for inordinately delaying assent to several bills passed by the state legislature. The SC reminded that Governors must act on bills “as soon as possible.”
  • Punjab (2023): The Governor questioned the validity of an Assembly session and refused to act on bills passed during it. The Supreme Court ruled that a Governor cannot cast doubt on the validity of a legislative session and must act on the advice of the Council of Ministers regarding convening the Assembly.

4. The Politicisation of the Governor’s Appointment and Removal

• Post-2004 (UPA Government): The new government asked for the resignation of several Governors appointed by the previous NDA government, leading to their removal.
• B.P. Singhal v. Union of India (2010): The Supreme Court delivered a significant judgment on this matter. It held that:
  • The President can remove a Governor at any time without assigning any reason and without giving an opportunity to be heard. However, this power cannot be exercised in an arbitrary, capricious, or unreasonable manner.
  • A Governor cannot be removed simply because they are “out of sync” with the policies and ideologies of the Union government or the party in power at the Centre.
  • The decision to remove a Governor is subject to judicial review, though the scope is limited. The court can intervene if the removal is found to be based on malafide or wholly irrelevant grounds.
• Post-2014 (NDA Government): The practice of changing Governors continued. Instead of outright removal, methods like transfers to other states or reviving old cases were allegedly used to pressure Governors appointed by the UPA to resign.

All India Services (AIS)

All India Services (IAS, IPS, Indian Forest Service) are a unique feature of the Indian federation, created under Article 312 of the Constitution.

• Federal Anomaly: In a typical federation, the federal and state governments have their own separate public services. The existence of AIS, where officers are recruited by the Centre but serve under state governments, is seen by some as a unitary feature that infringes upon state autonomy.
• Rationale and Support:
  • Sardar Vallabhbhai Patel, a key architect of the AIS, referred to them as the “steel frame” of India, essential for maintaining national unity and integrity.
  • Sarkaria Commission (1988): Strongly recommended the continuation and strengthening of AIS. It argued that these services provide a “macro-nationalistic perspective” and are crucial for ensuring uniform standards of administration across the country.
  • M. M. Punchhi Commission (2010): Echoed the sentiments of the Sarkaria Commission and even recommended the creation of more All India Services in sectors like health, education, and engineering.

Centre-State Financial Relations: Major Issues

Financial relations are governed by Part XII of the Constitution and have been a persistent source of friction, with states often alleging over-centralisation of financial powers.

1. The Finance Commission (FC) - Article 280

• Composition and Terms of Reference (ToR):
  • Issue: Both the members and the ToR of this constitutional body are decided unilaterally by the central government. States argue this creates a pro-Centre bias.
  • Punchhi Commission Recommendation: To enhance federal trust, the members of the FC should be appointed in consultation with the states. Similarly, the ToR should be formulated after wide consultation with state governments.
• Vertical Devolution (Centre to States):
  • Issue: There is a significant mismatch between the revenue-raising powers and expenditure responsibilities of the Centre and states. States are responsible for most developmental and welfare expenditures but have limited taxation powers.
  • Evolution: The 14th Finance Commission (Chairman: Y.V. Reddy) made a landmark recommendation, increasing the states’ share in the divisible pool of central taxes from 32% to 42%. The 15th Finance Commission (Chairman: N.K. Singh) reduced this to 41%, adjusting for the 1% to be directly provided to the newly formed UTs of Jammu & Kashmir and Ladakh.
  • Punchhi Commission Recommendation: Advocated for progressively increasing the states’ share to 50%.
• Cess and Surcharge:
  • Issue: Under Article 271, the Parliament can levy cesses and surcharges which are not part of the divisible pool and hence not shared with states. The Centre has increasingly relied on this route, which shrinks the divisible pool and undermines the spirit of fiscal federalism. For instance, the share of cess and surcharge in the Centre’s gross tax revenue has risen significantly over the years.
  • Punchhi Commission Recommendation: Recommended that the Centre should discontinue the practice of levying cesses and surcharges, or if unavoidable, should be for a limited, specified period.
• Horizontal Devolution (Among States):
  • Issue: The formula for distributing funds among states is based on principles of equity (needs) and efficiency (performance). This has led to complaints from better-performing states.
  • The 2011 Census Controversy: The ToR for the 15th FC mandated the use of the 2011 census data instead of the 1971 data used previously. Southern states, which had successfully implemented population control measures, argued that this would penalize them and reward states with poor demographic performance.
  • Income Distance Criterion: This criterion, which has the highest weightage, measures the distance of a state’s per capita income from the state with the highest per capita income (e.g., Haryana). Better-performing states argue that as their income grows, their “income distance” reduces, leading to a smaller share of funds, effectively penalizing them for their economic success.
• Addressing Concerns in the 15th FC: The 15th FC balanced these concerns by:
  • Giving a lower weightage of 15% to Population (2011).
  • Introducing a new “Demographic Performance” criterion with a 12.5% weightage to reward states with lower fertility ratios.
  • Introducing “Tax and Fiscal Efforts” (2.5% weightage) to reward states with higher tax collection efficiency.
  • Retaining “Forest and Ecology” (10% weightage) to reward states for maintaining forest cover.

Prelims Pointers

• Article 356: Imposition of President’s Rule in a state.
• Article 164: Governor appoints the Chief Minister.
• Article 200: Governor’s options regarding bills passed by the state legislature (assent, withhold, return, reserve).
• Article 201: President’s options regarding bills reserved by the Governor.
• Article 280: Constitution of the Finance Commission.
• Article 312: Parliament can create All India Services.
• Article 271: Surcharges on certain duties and taxes for purposes of the Union.
• Voice Vote: A voting method in a legislature where the decision is made based on the loudness of cries of “Aye” or “No.”
• Adjourned Sine Die: Adjourning the assembly without appointing a day for its next meeting.
• S.R. Bommai v. Union of India (1994): Supreme Court case that laid down guidelines for the imposition of Article 356. It held that the floor test is the ultimate test of majority.
• Nabam Rebia Case (2016): SC ruled that the Governor’s discretionary power is not absolute and is subject to constitutional limitations.
• B.P. Singhal v. Union of India (2010): SC held that a Governor cannot be removed on partisan grounds or for being “out of sync” with the central government’s ideology.
• Sarkaria Commission (1988): Commission on Centre-State Relations.
• M.M. Punchhi Commission (2010): Second major commission on Centre-State Relations.
• 14th Finance Commission: Recommended a 42% share for states in the central divisible pool of taxes.
• 15th Finance Commission: Recommended a 41% share for states.
• 15th FC Horizontal Devolution Criteria & Weights:
  1. Income Distance: 45%
  2. Population (2011): 15%
  3. Area: 15%
  4. Demographic Performance: 12.5%
  5. Forest and Ecology: 10%
  6. Tax and Fiscal Efforts: 2.5%

Mains Insights

1. The Governor’s Office: A Constitutional Dichotomy

• Cause-Effect: The dual role of the Governor as the constitutional head of the state and a representative of the Centre is the primary cause of conflict. When Governors prioritize their role as a central agent over their constitutional obligations, it leads to an erosion of state autonomy and federal principles. This often results in political instability, judicial intervention, and a breakdown of trust between the Centre and states.
• Debate: The central debate revolves around whether the Governor’s office is a “Constitutional Head or an Agent of the Centre.” While the Constitution envisages the former, political practice has often reduced it to the latter.
• Historiographical Viewpoint: Scholars like Granville Austin have pointed out that the Indian federation has strong unitary features designed to hold the country together. The Governor’s office can be seen as one such feature. However, other experts like Ivor Jennings termed the Indian constitution as “federation with a strong centralizing tendency,” highlighting the potential for misuse of such powers.

2. Fiscal Federalism: Cooperative or Coercive?

• Cause-Effect: The vertical fiscal imbalance, where the Centre has greater revenue-raising powers and states have greater expenditure responsibilities, is a structural cause of financial friction. The Centre’s increasing use of cesses and surcharges, which are outside the divisible pool, exacerbates this issue, leading to states feeling financially constrained and dependent on the Centre’s discretion. This transforms the relationship from cooperative to potentially coercive.
• Debate: The debate on horizontal devolution pits the principles of Equity vs. Efficiency. Should states with greater needs (higher population, poverty) receive more funds (equity), or should states that perform well (population control, fiscal discipline) be rewarded (efficiency)? The 15th FC’s formula is an attempt to balance these conflicting principles.
• Analytical Perspective: The unilateral setting of Terms of Reference for the Finance Commission and the rise of Centrally Sponsored Schemes, where states have to contribute matching funds for schemes designed by the Centre, represent a shift towards a more centralized model of federalism, undermining the fiscal autonomy of states.

3. All India Services: A Tool for Unification or Centralisation?

• Debate: The core debate is National Integration vs. State Autonomy. Proponents argue that AIS officers, with their broad, national outlook, prevent parochialism and ensure uniform administrative standards, thus strengthening national unity. Opponents argue that these officers are often not attuned to local needs and culture, and their ultimate accountability to the Centre (in matters of disciplinary proceedings) undermines the authority of the state government.
• Cause-Effect: The central control over AIS can lead to friction, especially when a state government and the central government are led by different political parties. Disagreements over the transfer and posting of officers, or the Centre’s refusal to grant extensions, can become major political flashpoints, as seen in recent tussles between the Centre and states like West Bengal.

Previous Year Questions

Prelims

1. Which of the following are the discretionary powers given to the Governor of a State? (UPSC CSE 2014)

   1. Sending a report to the President of India for imposing the President’s rule
   2. Appointing the Ministers
   3. Reserving certain bills passed by the State Legislature for consideration of the President of India
   4. Making the rules to conduct the business of the State Government

   Select the correct answer using the code given below: (a) 1 and 2 only (b) 1 and 3 only (c) 2, 3 and 4 only (d) 1, 2, 3 and 4

   Answer: (b) 1 and 3 only. Appointing ministers (2) and making rules for business (4) are done on the advice of the Chief Minister/Council of Ministers.

2. Which of the following is/are the indicators/indicator used by IFPRI to compute the Global Hunger Index Report? (UPSC CSE 2016) (This is analogous to questions on FC criteria) Although not directly on FC, it tests the knowledge of criteria used in an index, similar to what’s needed for Finance Commission. A question directly on FC criteria in recent years is less common, but the pattern of asking about components of indices/reports is frequent. For example: The Fifteenth Finance Commission used which of the following criteria for horizontal tax devolution for the period 2021-26?

   1. Population (2011)
   2. Area
   3. Demographic Performance
   4. Poverty Ratio
   5. Tax Effort

   Select the correct answer using the code given below: (a) 1, 2 and 5 only (b) 1, 2, 3 and 5 only (c) 2, 3, 4 and 5 only (d) All of the above

   Answer: (b) 1, 2, 3 and 5 only. Poverty Ratio was a criterion in earlier commissions but was replaced by ‘Income Distance’ in later ones. The 15th FC uses Income Distance, not Poverty Ratio directly.

3. Consider the following statements: (UPSC CSE 2018)

   1. The Parliament of India can place a particular law in the Ninth Schedule of the Constitution of India.
   2. The validity of a law placed in the Ninth Schedule cannot be examined by any court and no judgement can be made on it.

   Which of the statements given above is/are correct? (a) 1 only (b) 2 only (c) Both 1 and 2 (d) Neither 1 nor 2

   Answer: (a) 1 only. Statement 2 is incorrect. The Supreme Court in the I.R. Coelho case (2007) ruled that laws placed in the Ninth Schedule after April 24, 1973, are open to judicial review if they violate the basic structure of the Constitution. This question tests the limits of legislative power vs. judicial review, a theme also relevant to the Governor’s powers and Art 356.

4. With reference to the Finance Commission of India, which of the following statements is correct? (UPSC CSE 2023) (a) It encourages the inflow of foreign capital for infrastructure development. (b) It facilitates the proper distribution of finances among the Public Sector Undertakings. (c) It ensures transparency in financial administration. (d) None of the statements (a), (b) and (c) given above is correct in this context.

   Answer: (d) None of the statements (a), (b) and (c) given above is correct in this context. The core mandate of the Finance Commission under Article 280 is to recommend the distribution of tax revenues between the Union and the States (vertical) and among the States themselves (horizontal), and to recommend principles for grants-in-aid. The options listed are not its primary functions.

5. The Constitution of India is federal in character but with a strong unitary bias. Which of the following is not a federal feature? (Based on UPSC Pattern) (a) Written Constitution (b) Independent Judiciary (c) All India Services (d) Division of Powers

   Answer: (c) All India Services. Written Constitution, Independent Judiciary, and Division of Powers are classic federal features. All India Services, where the central government recruits and controls top administrative officers serving in the states, is a unitary feature that strengthens the Centre’s control.

Mains

1. “The role of the Governor is of a sagacious counsellor, mediator and arbitrator rather than that of an active politician.” In the light of recent controversies, critically examine the statement. (UPSC GS Paper II - 2023)

   • Approach:
     • Introduction: Briefly explain the constitutional position of the Governor as envisaged by the founding fathers.
     • Body:
       • Explain the intended role: acting on aid and advice, using discretion judiciously, acting as a link between Centre and State.
       • Discuss recent controversies where Governors have been accused of acting as active politicians: government formation in Karnataka/Goa/Maharashtra, delaying assent to bills in Telangana/Punjab, recommending President’s Rule in Uttarakhand/Arunachal Pradesh.
       • Analyze how these actions deviate from the role of a “sagacious counsellor.”
       • Mention the impact of such actions on federalism, democratic processes, and the authority of elected state governments.
     • Conclusion: Conclude by suggesting reforms based on the recommendations of the Sarkaria and Punchhi Commissions and Supreme Court judgments to restore the dignity and constitutional propriety of the Governor’s office.

2. To what extent, in your view, the Parliament is able to ensure accountability of the executive in India? (UPSC GS Paper II - 2021)

   • Approach: (This question is about executive accountability, but the role of the Governor can be linked as an extension of the Union executive’s influence over states).
     • Introduction: Explain the principle of parliamentary accountability of the executive in a democracy.
     • Body:
       • Discuss the mechanisms through which Parliament ensures accountability (question hour, motions, debates, committees).
       • Analyze the limitations (brute majority, ordinances, decline in debate quality).
       • Connect to Centre-State relations: Argue that the accountability mechanism is further weakened when the Union executive uses constitutional offices like the Governor to undermine state legislatures, bypassing the democratic accountability that the state government has to its own assembly. The Governor’s actions are not directly accountable to the state legislature.
     • Conclusion: Suggest measures to strengthen parliamentary accountability, including empowering committees and ensuring constitutional functionaries like the Governor act with neutrality.

3. The judicial systems in India and the UK seem to be converging as well as diverging in recent times. Highlight the key points of convergence and divergence between the two nations in terms of their judicial practices. (UPSC GS Paper II - 2020)

   • Approach: (This question is on judicial systems, but the theme of judicial review, as seen in the Bommai and Nabam Rebia cases, is a key point of divergence).
     • Introduction: Briefly introduce the common law heritage of both India and the UK.
     • Body:
       • Convergence: Mention shared principles like natural justice, rule of law, independence of the judiciary, and adversarial system.
       • Divergence: This is the key part.
         • Written vs. Unwritten Constitution: India has a written constitution, the UK’s is uncodified.
         • Parliamentary Sovereignty vs. Constitutional Supremacy: In the UK, Parliament is sovereign. In India, the Constitution is supreme.
         • Power of Judicial Review: This is the most crucial divergence. The Indian judiciary, particularly the Supreme Court, has the power of judicial review to strike down laws that violate the Constitution (Article 13). This power is much more limited in the UK. Mention landmark Indian cases like Kesavananda Bharati and how the judiciary has used this power to check executive overreach, including the misuse of Article 356 (S.R. Bommai case).
     • Conclusion: Conclude that while both systems are rooted in common law, India has carved a unique path with a powerful, constitutionally-mandated role for its judiciary as the ultimate interpreter and guardian of the Constitution.

4. How far do you think cooperation, competition and confrontation have shaped the nature of federation in India? Cite some recent examples. (UPSC GS Paper II - 2020)

   • Approach:
     • Introduction: Define Indian federalism as a dynamic and unique system that exhibits elements of cooperation, competition, and confrontation.
     • Body:
       • Cooperation: Explain cooperative federalism with examples like the GST Council, NITI Aayog, and joint efforts during the COVID-19 pandemic.
       • Competition: Explain competitive federalism with examples like states competing for investments (e.g., Ease of Doing Business rankings) and central grants based on performance.
       • Confrontation: This is where the topic summary is most relevant. Discuss confrontational federalism using recent examples:
         • The partisan role of the Governor in government formation and passing bills.
         • Disputes over the use of central agencies (CBI, ED) in opposition-ruled states.
         • Friction over financial matters like GST compensation, cess/surcharge, and the Finance Commission’s recommendations.
         • Disputes over All India Service rules.
     • Conclusion: Conclude that the Indian federation is a complex tapestry woven with these three threads. While cooperation and healthy competition are desirable, rising confrontation threatens the federal balance and requires strengthening institutional mechanisms for dialogue and trust.

5. Though the federal principle is dominant in our Constitution and that principle is one of its basic features, it is equally true that federalism under the Indian Constitution leans in favour of a strong Centre. This is a feature that militates against the concept of strong federalism. Discuss. (UPSC GS Paper II - 2014, but relevant in the last 5 years context)

   • Approach:
     • Introduction: Acknowledge the statement that the Indian Constitution establishes a federal system but with a pronounced unitary bias, a feature that has been a subject of intense debate since its inception.
     • Body:
       • Federal Features: List the core federal features of the Indian Constitution (dual polity, written constitution, division of powers, supremacy of constitution, independent judiciary).
       • Unitary/Centralizing Features: Discuss in detail the features that lean in favour of a strong Centre:
         • Single Constitution and single citizenship.
         • Emergency provisions (Article 352, 356, 360).
         • The office of the Governor appointed by the President.
         • All India Services (Article 312).
         • Parliament’s power to legislate on state subjects under certain conditions (Article 249).
         • Financial dependence of states on the Centre.
       • Analysis of “Militating against Strong Federalism”: Analyze how these unitary features, especially the misuse of Article 356 and the Governor’s office, have been used to undermine state autonomy and create friction, thus militating against the federal spirit.
     • Conclusion: Conclude by stating that while the centralizing bias was intended by the framers to preserve national unity, its political misuse has strained Centre-State relations. Emphasize the need for “cooperative federalism” and adherence to constitutional propriety, as guided by Supreme Court judgments, to maintain a healthy federal balance.