April 12, 2013, 9:33 am

In the short term, the most important issue before the government is the holding of the Northern Provincial Council election. This should be held within the next four to five months according to announcements made by the government. The reason why the NPC election has not been held up to now, is clearly because the government has been having misgivings about having a provincial government in the Northern Province.  The recent events in Tamil Nadu and the inability of the Indian Central government to control Tamil Nadu should make the government even more apprehensive about having a chief minister in the north who can add his voice to the rising secessionist caterwaul in South India. Indeed the whole provincial council system in this country should be reviewed. One of the main areas that this government has neglected is constitutional reform. Whatever has to be done has to be done fast because the term of this government is running out and a two thirds majority will not be available forever.


It is now high time the government set its mind to these outstanding tasks and of them priority should be given to reforming the PC system. The provincial councils system was adopted by the J.R. Jayewardene government as a trade off for Indian help in defeating the LTTE. But the Indian side of the promise was never kept and we had to finish off the LTTE ourselves. But we still have the PC system on our backs. It was never adopted because it was the best form of governance for Sri Lanka, but due to Indian duress.  In its day to day operation, the Provincial Council’s system has proved to be a white elephant, serving no useful purpose in administration, and indeed even impeding the proper running of the country. Even the Tamil National Alliance does not want it. They want something more. There are many things that the government should take into consideration before deciding to hold the Northern PC election and foremost among them is the political situation in India.


The Sri Lankan PC system was modeled on the system of power devolution in India. The Indians imposed their system on us in a situation where their system of governance had begun a long slide downwards. Even at the time the PC system was introduced to this country, it was not a system that anyone should follow. But in the 1980s, the problems that had emerged in the Indian system of governance were not seen as an irreversible deterioration but rather as temporary aberrations that could be corrected.   In 1983, the Indira Gandhi government appointed the R.S.Sarkaria Commission to examine the relations between the Indian Centre and the States. This commission concluded its sittings in 1988. Then two decades later, the Congress Party led government of Prime Minister Manmohan Singh appointed another Commission on Centre - State Relations headed by Madan Mohan Punchhi which began its deliberations about 2007 and published its report in 2010. Anybody contemplating any kind of Indian inspired devolution of power in Sri Lanka should read these two reports.


The picture that emerges when reading these two reports in juxtaposition is that of a colossal failed state on our very door step, teetering on the brink of complete collapse. This has been a long slide downwards for India – a slide that has been accelerating with each passing decade. What we may be seeing now, especially in relations between Tamil Nadu and the Central government, may be the beginning of the last phase in the long slide towards disintegration.  The Sarkaria Commission explaining why it was appointed, stated as follows:


 The Sarkaria Commission of 1988


 1. The Constitution of India envisages two tiers of Government, one at the level of the Union, and the other at the level of the States. At the time of Independence, the Congress Party occupied a predominant position in national life. Leaders and many in the rank and file of this party were old freedom fighters who had come from the legal, medical and academic professions. They had good education, patterned mainly on the English system and values. The Congress Party formed the Government at the Centre and in the States for nearly two decades after Independence. In these conditions, Union-State relations under the Constitution were essentially an intra-party arrangement of the Congress. Differences between the State Governments and the Union Government were quite easily sorted out at the party level. Stalwarts at the Union and those in the States acted with a sense of mutual respect and accommodation.


2.  As the old guard of the pre-Independence days began to vanish from the political scene by sheer efflux of time, the composition of the Congress Party underwent a change particularly in the States. The new political leaders were distinctly different from their predecessors. They were younger and not steeped in the Gandhian traditions of the pre-Independence era. Political life was not seen as in the days of the freedom struggle, as a sacrifice for the nation. Rather, it became a political career and a means of reaching for power and pelf in varying proportions. It was no longer the lawyer or doctor sacrificing a lucrative practice or the teacher throwing up his calling to join politics. It was the local leader commanding money, muscle power and caste or communal loyalties who came to the forefront of State politics. A span of mere twenty years witnessed the rise of regional parties and the split of the national parties.


3. The common characteristic of many of these groups in a plural society like ours is to promote sub-nationalism in a manner that tends to strengthen divisive forces and weaken the unity and integrity of the country. One State Government has observed that "with the reorganization of the States on a linguistic basis, these are no longer mere administrative sub-divisions of the country. These are now deliberately reorganized homelands of different linguistic-cultural groups. These groups are, in fact, growing into distinct nationalities". (The Commission also drew attention to the pernicious role of vested interests in converting legitimate aspirations into strident discord and dissent.)


The Sarkaria Commission observed that "A special aspect of the Indian Union is that the Union is indestructible but not so the States; their identity can be altered or even obliterated." They held that India was NOT a federation of states, and that the Constituent Assembly expressly rejected a motion in the concluding stages to designate India as such. They even quoted Dr. Ambedkar, Chairman of the Drafting Committee, who had stated that though India was to be a federation, the federation was not the result of an agreement by the States. Since the federation was not the result of an agreement, no State has the right to secede from it. The federation is a Union because it is indestructible. 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. Ambedkar further stated, "The Americans had to wage a civil war to establish that the States have no right of secession and that their federation was indestructible. The Drafting Committee thought that it was better to make it clear at the outset rather than to leave it to speculation or to disputes."


 The Sarkaria Commission observed that the institution of Governor was conceived of as an effective link between the two levels of Government. It was expected to ensure the conduct of the affairs of government in the State in accordance with the Constitution. However, it was alleged by the regional parties that this instrument has been made use of to destabilize the State Governments run by parties different from that in power in the Union, to facilitate imposition of President’s rule and reserve for the President’s consideration many State Bills to thwart the States’ legislative process. When the Indian political scene was dominated by a single party, problems which arose in the working of Union-State relations could be sorted out in the intra-party forum and the Governor had very little occasion for using his discretionary powers. Thus the institution of Governor remained largely latent. A major change occurred after the Fourth General Elections in 1967. In a number of States (including Tamil Nadu), the party in power was different from that in the Union. The subsequent decades saw the fragmentation of political parties and emergence of new regional parties. Frequent, sometimes unpredictable realignments of political parties and groups took place for the purpose of forming governments. These developments gave rise to chronic instability in several State Governments. As a consequence, the Governors were called upon to exercise their discretionary powers more frequently. The manner in which they exercised these functions has had a direct impact on Union-State relations. Points of friction between the Union and the States began to multiply.


 The Sarkaria Commission observed that the constitution requires the Governor to act on the advice of his Council of Ministers. There is, however, an exception in regard to matters where he is required to function in his discretion.


 (a) The Governor has to act at his discretion where the advice of his Council of Ministers is not available, as for example when appointing a Chief Minister soon after an election.


(b) At times, a Governor may have to act against the advice of the Council of Ministers, as for example when dismissing a Ministry following its refusal to resign on being defeated in the Legislative Assembly on a vote of no-confidence.


(c) A Governor may have to make a report to the President under Article 356 of the constitution that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of the Constitution. Obviously, in such a situation he may have to act against the advice of the Council of Ministers as the situation may be due to the various acts of omission or commission on the part of the Council of Ministers.


(d) A Governor may have to exercise his discretion in reserving a Bill for the consideration of the President.


 Because of this power of the Governor, the increasingly assertive states sought to obtain some control over the appointment of Governors. The Sarkaria Commission stated that it has been suggested that the Governor should be appointed from a panel nominated by the State Chief Minister, or with the concurrence of the State Chief Minister. This suggestion however was made at a time when the Indian Central government was still relatively strong. Hence the Sarkaria Commission stated point blank - "We cannot subscribe to the suggestion that the governor of a State should be appointed either from a panel nominated by the State Government or with the concurrence of the Chief Minister." After deliberating the question whether the chief minister of a state should be consulted before appointing a governor, the Sarkaria commission decided as follows: "We recommend that the Vice-President of India and the Speaker of the Lok Sabha should be consulted by the Prime Minister in selecting a Governor. Such consultation will greatly enhance the credibility of the selection process. The proposed consultation will be informal and not a matter of constitutional obligation." Thus even the consultation process in appointing governors was retained firmly with the Centre.





Gubernatorial and emergency powers


 Then the states had recommended to the Sarkaria Commission that the discretionary power of the governor should be removed. But the Commission decided that the discretionary power of the Governor should be left untouched. They however recommended that when a Governor finds that it will be constitutionally improper for him to accept the advice of his Council of Ministers, he should make every effort to persuade his Ministers to adopt the correct course. He should exercise his discretionary power only in the last resort. The next attempt to whittle down the power of the Centre over the states came with a suggestion that guidelines be established for Governors in regard to the exercise of their discretionary powers. On this issue too, the Sarkaria Commission decided that it would be neither feasible nor desirable to formulate a comprehensive set of guidelines for the exercise of the Governor’s discretionary powers. Their conclusion was that the Governor should be free to deal with a situation, as it arises, according to his best judgment.


Another method by which the Centre asserted control over the States was through the imposition of presidential rule. The Sarkaria Commission carefully considered the criticism coming from the states that more often than not, this provision has been misused, to promote the political interests of the party in power at the Union. They acknowledged that this allegation was true and observed that there was a sharp increase in the incidence of such cases from 1967 onwards because of the fragmentation of political parties, and rise of regional parties. Despite the obvious abuse of this power, upon careful consideration, the Sarkaria Commission decided that the framers of the Constitution recognized that the provisions of Articles 355 and 356 which provided for the imposition of presidential rule on the States, were necessary to meet exceptional situations. They even described these provisions as ‘a bulwark of the Constitution’.


After listening to all the complaints that this provision allowing for presidential rule has been interpreted and applied differently in similar situations to suit the political interests of the party in power at the centre, the Sarkaria Commission came to the conclusion that article 356 should be used very sparingly, in extreme cases, as a measure of last resort. They were also in favour of issuing a warning before taking action under Article 356. But they firmly held in favour of retaining the provisions relating to presidential rule. "The unity and integrity of the country is of paramount importance. Unless there is a will and commitment to work for a united country, there are real dangers that regionalism, linguistic, chauvinism, communalism, casteism, etc. may foul the atmosphere to a point where secessionist thoughts start pervading the body politic. It is, therefore, necessary to preserve the overriding powers of the Union to enable it to deal with such situations and ensure that the government in the State is carried on in accordance with the provisions of the Constitution. We are firmly of the view that Article 356 should remain as the ultimate Constitutional weapon to cope with such extreme situations."





Abject capitulation


 After the Congress led government of Prime Minister Manmohan Singh took office in 2004, the centrifugal forces in India had been at play for decades and the centre was weaker than when the Sarkaria Commission was in session. The present Congress government appointed a Commission on Centre-State relations headed by Madan Mohan Punchhi which completed its report by 2010. This latter commission capitulated on all the fronts that the Sarkaria Commission had held firm a quarter of a century earlier. This was not surprising, given the fact that the Congress government appointed the Punchhi Commission to re-examine Centre - State relations under pressure from secessionist forces like the DMK.


The Punchhi Commission came to the conclusion that what they call ‘cooperative federalism’ will be the key for sustaining India’s unity, integrity in the future.  We noted that the previous Sarkaria Commission expressly dismissed the idea that India was a federation of states but now, the Punchhi Commission was accepting that in all but name. In so reformulating the entire structure of the state, the Punchhi Commission has even stated that ‘Statesmanship’ should lead ‘Politics’, and stressed the necessity of  ‘addressing the needs and aspirations of the States’. The Punchhi Commission even stated that what the framers of the constitution initially had in mind was ‘a loose federation’.  Where India is heading is made very clear in these statements.


 The Punchhi Commission stated that some States and their supporting political parties have felt that the Union has enriched its powers at the cost of the


States and that they wanted the balance restored. "It was their view that the case for centralization which existed at the time of framing the Constitution does not exist any more and what is needed now is a conscious policy for strengthening the States". They further observed that the changed political reality of contemporary times has naturally resulted in reversing the centralization process which was pronounced in the initial period when the same party was in power at the Centre and in the States. In a federal system, the existence of the power in the Union does not by itself justify its exercise and it is the considered view of the Commission that the Union should be extremely restrained in asserting Parliamentary supremacy in matters assigned to the States.


With regard to the Governor’s discretionary powers which were considered to be so vital by the Sarkaria Commission, the Punchhi Commission has held that "The Commission is of the view that the scope of the Governor’s discretionary powers has to be narrowly construed. While the Sarkaria Commission had baulked at imposing any guidelines on the discretionary powers of the Governors of the States, the Punchhi Commission has done exactly that recommending strict guidelines to be followed to regulate the powers of the Governor in relation to the appointment and dismissal of chief ministers and in giving or withholding assent for bills passed by the State Assemblies.


 The Punchhi Commission has even thrown overboard the constitutional safeguards designed to preserve the integrity of the country – provisions that the previous Sarkaria Commission dubbed ‘a bulwark of the constitution’. They observed that the question when a situation of public disorder  justifies central government intervention has been left by the Constitution to the judgement and good sense of the central government itself. They recommend that "Though this is the legal position, in practice, it is advisable for the Union Government to sound the State Government and seek its co-operation before deploying its forces in a State."


 Most frighteningly, the Punchhi Commission has recommended that the guidelines set forth in the judgment of the Supreme Court in S.R. Bommai V. Union of India (1994) be followed when imposing presidential rule on a state on the grounds that this would remove possible misgivings in this regard on the part of States and help smoothen Centre-State relations. The S.R.Bommai judgment was another bizarre ruling of India’s notoriously crackpot supreme court which sought to impose the following strictures on the Central government:


 1. The imposition of president’s rule on a state can be called into question in courts and is subject to judicial review. The Indian Central government has to explain to courts, the reasons for imposing presidential rule on a State.


2. A proclamation of presidential rule can be challenged in courts even after it has been approved by both houses of parliament.


3. The Supreme Court has the power to restore the dismissed government to office if it finds the proclamation of presidential rule to be unjustified.


 India is now fast going down the drainpipe. The imposition of presidential rule was dubbed ‘the ultimate Constitutional weapon’ to safeguard the unity of India. What has the Punchhi Commission done to this ultimate weapon? The capitulationist Punchhi Commission also stated in their report that they have come to the conclusion that a federal system alone can take the country forward as a united, democratic republic. We saw earlier what the Sarkaria Commission had said about the structure of the Indian state. What the Punchhi Commission makes abundantly clear is that the India is now a failing state which cannot counter the centrifugal forces at play in the States. We can’t afford to go down that road. Nobody who has read the Sarkaria and Punchhi Commission reports in juxtaposition will ever recommend such a system of governance for their country.  This is why the Northern PC election should never be held. This is why the Provincial Councils system should be scrapped or at the very least reformed.  The unit of devolution should never be the province but the district.  The need of the hour is to prevent the Indian contagion from affecting Sri Lanka.

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