Statehood for Delhi?

Introduction

 Major capitals of the world viz. Tokyo and Berlin have not been given much autonomy by the Union Governments let alone statehoods. Delhi as India’s National Capital Territory houses critical infrastructure – parliament, Rashtrapathi Bhavan, Defence and Foreign missions. The extend of autonomy that can be granted without affecting national interest needs to be observed.

Yes

• Federal Autonomy: Showering Delhi with statehood would provide the democratically elected government of the new state independent powers in subjects enumerated in state list. This decentralized model augurs well for good governance and realisation of the mandate of the people
• Ensuring Accountability: The full realisation of the people’s mandate for the Delhi government is hindered due to its lack of authority in multiple spheres- police, land, services and public order. Once accorded statehood, there would be greater accountability on the incumbent government for all such matters
• Functional Clarity: The jurisdictions of the state government would be clearly spelt out if statehood is granted. This enables better coordination and rationalization of functions of Union and State governments
  • The current scenario where the Delhi government has little control over bureaucrats does not augur well for the governance machinery
  • Loss of Delhi governments control over Anti-Corruption Bureau and Department of Services
• Delhi as a Large Metropolis: Delhi is to rapidly evolve by 2035 as the largest metropolis in the world. The rising aspirations of such a large urban community cannot be met without a democratically elected state government.
• Past Precedents: Union Territories of Goa, Manipur and Himachal have been granted statehood.

No

• Delhi as National Capital: As national capital, Delhi is the host for foreign missions and high level political meetings. In the best of national interest, it is best the Union government retains a substantial degree of control over it
• Burden on State Government: Statehood would deprive Delhi of many of the advantages like the managing of the policing that is taken up by the Union Government
• National capital belongs to people of India and not of the city alone

Suggestions

• More autonomy: The Centre government can take the middle path by offering more autonomy to Delhi in matters of police, land, public order and services but not according statehood. This would improve governance in the NCR without affecting India’s national interest
• Collaborative Federalism: Inbuilt overlapping jurisdictions in the constitution have to be managed by the Union and UT government for harmonious governance of the state
• Dispute Resolution Mechanism: A more credible dispute resolution system than referring to the president needs to be evolved. An institutionalized dispute resolution mechanism needs to be put in place
• Urban Local Good Governance: The principle of subsidiarity shall be followed so that ULB manages city’s affairs merged with the para-statal.

Like the states of Himachal Pradesh and Tripura that evolved from UTs into states, the time has come to introspect the need of a representative and accountable government that derives meaningful authority from people’s mandate

Kashmir Issue

Article 370: It conferred special status on Kashmir and allowed several special privileges for the state. Under it, Kashmir was to have a separate constitution and an increased autonomy in managing its affairs. The Centre’s role would be limited to matters of defence, foreign affairs, communication and banking alone.

Special Privileges for Kashmir

1. No Fundamental Duties
2. No DPSP
3. No Financial Emergency in state
4. State legislature’s power in residuary list and preventive detention
5. State legislature’s consent for parliament’s law making powers in matters other than those prescribed in instrument of accession
6. No territorial changes for the state except by sanction of state legislature
7. Article 35A: state legislature prescribing conditions of residency and special privileges for residents- scholarships, jobs, seats in education

Why Article 370?

Kashmir’s Special Status: Kashmir became an integral part of India following the signing of the Instrument of Accession. Special safeguards were necessary to ensure Kashmir’s identity is conserved and not overhauled by India.

Removal of the article may violate the nature of the instrument of accession and cut off Kashmir’s territorial integrity with India.

Territorial Integrity: In matters of defence of its territory and security, the Article vests authority to Centre. It confirms Kashmir to be an integral part of India despite granting special autonomy and privileges to the state

Unity in Diversity: The Article is an attempt to diffuse the ethnic, cultural, linguistic and religious tensions that may have arisen. It promotes the plural identity of Kashmiris as being Kashmiris as well as Indian.

Is Article Temporary?

The Supreme Court has recently elucidated that the Article is permanent in nature despite the headnote of the article.

Case for Removal of Article

Uniform Polity: The Article makes a distinction between Kashmir and rest of states of India, the removal of which can entail the full integration of Kashmir into Indian polity. It would enable better coordination and administrative convenience between centre and state governments

Better Control for Union Government: The non-state actors behind extremism, separatism and violence in Kashmir can be better controlled by providing central government with a greater degree of control

Integration of India with Rest of Kashmir: Indians from other states can then freely reside, settle and buy property in Kashmir. There can be a cultural synthesis that can be an offset of the increased people to people interaction.

Case Against Removal

• Alienation: The removal of special privileges to the state can further inflame tensions and further the alienation that the citizenry currently experiences towards the state and the armed forces
• Link to India: The Article 370 is the constitutional source of Kashmir being an integral part of India and its removal leaves Kashmir in a state of isolation with respect to polity
• Separatist Tendencies: The removal of the article may boost the separatist movement in the state given the Kashmiri identity would be diluted with the removal of the article. A law and order issue might flame up in the state

Article 35A

• Incorporated into the constitution in 1954 by presidential order under Article 370(1)(D)
• Allows president to make certain exceptions and modifications to the constitution for the benefit of state subjects of Kashmir
• Question arises whether the president can modify an existing article without concurrence of the parliament. Any constitutional amendment requires parliament’s consent although president can modify an article under Article 370, it is not clear if he cannot introduce a new article without the knowledge of the parliament

Features

• Grants exclusive State subject rights to the people of Jammu & Kashmir.
• In contravention to Article 14: It advocates that the state shall not deny to any person equality before law and equal protection before laws within the territory of India
• Article 35A prohibits a non-resident from buying a property and ensures job reservation for residents amongst other welfares of scholarships and public aids to permanent residents of Kashmir
• Article 35A it is argued discriminates against women having cross-state marital relations of the state for buying property and applying for jobs. Children borne out of cross-marital relations also face discrimination when applying for public sector jobs and with regard to acquisition of property

Consequences of Abolishing Article 35A/ 370

Cons

Alienation of Kashmir: The abolition of the Article would deprive Kashmiris of the special category of permanent residents and with it several privileges of job reservations, scholarships and ownership of property that might alienate the Kashmiri citizenry

Xenophobia: The removal of the article is also seen as an attempt to alter the demography of Kashmir. An inflow of citizens from elsewhere may cause

• Economic Deprivation: Induce competition for natural resources, education and job opportunities that comes at the expense of Kashmiris
• Ethnic Tensionsà Violence: A fear of a loss of culture can cause ethnic conflicts particularly in a state as ethnically sensitive as Jammu and Kashmir

Fodder for Separatist Groups: Abolition of the article would be used to induce anti-national sentiments and stoke separatist movements within the valley. In the background of unemployment and poverty, the youth of Kashmir may be enticed to such militant movements on the pretext of loss of privileges for Kashmiri citizens

Pros for Kashmir

Sociological Liberalism: If privileges to citizens are undone, it would open doors for a cultural synthesis of Kashmiris with the rest of India. It may in the future strengthen the unity of the nation due to easier people to people movement between Kashmir and rest of India.

Economic Development of Kashmir: Abolition of Articleà Democratization of Property Ownership-à Investment from outside the state increasesà More Job Opportunitiesà Economic Development

Current Issues in Kashmir

Cross-border Terrorism: Kashmir is reeling from the import of terror from across the border with extra state actors meddling in its internal security.

Separatist Movements: The Hurriyat Conference is leading the charge for Kashmiriyat tapping into the feeling of alienation that exists in the heart of Kashmiris to the Indian state. Pakistan has been alleged to provide fuel to the fire of separatism

Alienation of the Citizens: The citizens of Kashmir are quickly losing trust in the state and Indian democracy. The human rights violations committed by the Indian army further compound the alienation of the Kashmiris

Troubled Youth: Kashmir’s youth remains jobless and poor alienated from the state and its institutions. They are vulnerable to radicalisation and indoctrination. Many are also hit by militancy deprived of lives and livelihoods.

Political Instability: Jammu and Kashmir presented a fractured mandate in the previous state elections. This led to the formation of an unstable coalition that did not possess clarity in restoring peace. The current installation of the Governor’s rule reflects the difficulty for democracy in Jammu and Kashmir

Religious Polarization: The valley and Jammu is polarized religiously like never before. Communal identities have been inflated by political parties and this has deterred brotherhood and fraternity among Kashmiris.

Eg: Hindu Ekta March support for the rapists in the Kathua rape case

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Conclusions      

                The issue of Kashmir is not one of binaries and has several complex layers that must be handled with humanism and dialogue rather than by force alone. The trilogy of Kashmiriyat, Jamoohariyat and Insaniyat of ex-PM Atal Bihari Vajpayee can be a guiding light to resolving the issues Kashmir faces today.               

                The Agenda of an Alliance that is now broken spoke of reconciliation and confidence building within and across the LoC in Jammu and Kashmir to ensure peace in the state. This must be the pathway to peace for Kashmir and for Kashmiris.

Role of Governor in Indian Polity

                The institution of the Governor is vital in promoting cooperative federalism as he acts as a link between the Centre and State. However, the politicization of the institution of governor has soured the federal framework of the country with many a times discretionary powers of the governor arbitrarily misused in favour of the Centre.

Discretionary Powers in Question

Article 163 of the constitution states that there shall be a council of ministers to aid and advise the governor except in so far as he is required to act in his discretion.

• President’s Rule: The governor can submit a report to the President stating the failure of constitutional machinery and to recommend imposition of President’s rule dismissing state governments through Article 356. In the history of democratic India, more than 120 times President’s rule has been imposed on states.
• The imposition of President’s Rule in Uttarakhand was struck down by the Supreme Court as it found it arbitrary and abuse of the discretion of the governor
• Reservation of Bills for Consideration of President (Article 200 and 201): This discretionary power of the governor opens the door to arbitrary scuttling of legislations of the state legislatures at the behest of the centre.
• Choosing the Chief-Minister in a Hung Assembly: According to Article 164(1), In situations where no party has a clear majority, the governor enjoys situational discretion to call whomsoever he believes can muster up the majority. There have been several cases where such discretions have been misused by governors to favour the party of the Union government.
• Manipur, Goa and Karnataka have shown differing precedents of appointment of CM: Post Poll Coalition or Single Largest Party
• Exercising his function as an administrator of a Union Territory: The SC in its observation in the AAP vs Union of India case had stated that the LG shall not unilaterally scuttle democratically elected government’s activities through abuse of powers in state list.

Other issues with Institution of Governor

1. Appointment by Centre: The constitution’s mandate for central government has been widely used to fill political veterans. Political appointments do not augur well for a constitutional bi-partisan post of governor
2. Arbitrary Removal: Though the P Singhal vs Union of India case provided for tenure for governors, union governments have tended to arbitrarily remove them from offices. This has impinged continuity, coordination neutrality and fairness in state government functioning

Consequences of Abuse of Discretion

1. Encourage horse trading subverting the mandate of the people fostering money power and criminalization of politics
2. Politicization of governor’s office leads to loss of public trust or credibility
3. Reduces accountability of people on democratically elected government as it creates dual power centres
4. Subverts federal system of governance for gains of the ruling party at the centre in the event of imposition of President’s rule
5. Abridges legislature’s sovereignty and delays law making process by reserving bills

Way Forward

• Sparingly use Article 365: The Supreme Court has laid down several conditions to check the veracity of the imposition of President’s Rule. The Sarkaria Commission has elucidated that it is a mechanism that must be sparingly used and only on account of failure of constitutional machinery and not on maladministration grounds

• Make Public the Report of the Governor: The report of the governor recommending President’s rule must be made public so that there is adequate transparency as to what was the error on part of the state government
• Localized Emergency: The Punchhi Commission has recommended the imposition of localized emergency, only a district or part of it instead of a wholesome dismissal of state government
• Order of Precedence for Appointment of CM: The Sarkaria commission has laid out guidelines for the governor to appoint a CM in case of a hung assembly:

• Largest Pre-Poll Alliance
• Single Largest Party
• Post-Electoral Coalition
• Post-Electoral Alliance

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• Prove Majority on Floor of House: In the R. Bommai vs Union of India Case, the supreme court has observed that the confidence that the government commands must be tested promptly on the floor of the house. This limits to an extent the situational discretion that the governor possesses
• Political Neutrality of the Office of the Governor:
• A person detached from local politics in the state and ideally someone from outside the state shall be appointed the governor according to recommendation of Sarkaria Commission
• Limit Arbitrary Removal: Security of tenure can be provided to the office of the Governor by taking out the phrase “pleasure of the president”

Conclusion

                As noted in the S.R. Bommai case, the abuse of president’s rule violates the basic structure of the constitution due to jeopardy of the federal framework of the country. In the words of Ambedkar, a governor should use his discretion as a representative of the people of the state and not as the representative of a party.

Special Category States

Inter-State Water Disputes

Why Inter-state water disputes?

Geographical Reasons: Rivers pass through several different states and lower riparian states seek protection with regard to the use of water resources. Post state reorganization the issue has only been heightened due to increased complexity in determining the share of water

Eg: Mahadayi river water sharing issue between Goa and Karnataka

High demand for water: Competing states demand large amounts of water as share due to high irrigation requirements particularly due to cultivation of water-intensive crops. High industry requirements and domestic consumption also aggravate the issue of river water demand

Eg: The high water-intensive cultivation of sugarcane in Karnataka that puts great stress on the Cauvery

Changing course of rivers: Young rivers, particularly in the northern states of India, change their courses which trigger a need to redefine sharing of its resources

Water Scarcity across the country: This puts greater stress on available water resources and forces states to compete with each other for water resources. In lean monsoon years, there is greater dependence on the scant river water resources for irrigation

The politicization of the Issue: Inter-state water issues are politicized poorly to incite hatred and violence on racial lines in competing states. Hence it erodes national unity by using regional sentiments to vilify opposing states.

Eg: The Cauvery issue had seen a spate of violent incidents on Tamils in Bengaluru

Activities of dam construction taken up by upper riparian states

Constitutional Provisions

1. Article 262(1) provides that Parliament may by law provide for the adjudication of any dispute with respect to use, control and distribution of waters of any inter-state river or river valley
2. Article 262(2) empowers Parliament to provide that SC or any other court shall not exercise jurisdiction in respect of inter-state water dispute.

Need for Inter-state water disputes bill

• Pendency of Issues: Several river disputes dragging on for years with no state ready to accept tribunal’s solutions and cases pending with SC
  • Ravi-Beas water dispute between Punjab, Haryana and Rajasthan have stretched for more than 31 years
• Frequency of Issues: Rising number of similar incidents in recent times have increased the need for a permanent resolution mechanism as compared to ad-hoc tribunals established earlier
• Judicial Burden: SC as a federal court may exercise original jurisdiction in hearing cases of inter-state disputes. Establishing a permanent mechanism for its resolution thus relieves SC of the burden of cases
• Judicious and Rational Division of water resources: An expert committee that evaluates the need of water resources objectively for competing states to secure citizens, farmers and industrialists access to drinking water, irrigation and power

Why the Delay?

• One Tribunal- One Issue Model: The Inter-state water Disputes Act, 1956 vested the authority with centre to create a tribunal as and when disputes occur. This model has caused inordinate delay as
  • Each dispute needs to be tackled from the start
  • Inconsistency in judgements–> Delay in Resolution
• No Enforcement of Tribunal Order: The existing mechanism for resolution does not have adequate machinery to enforce the award of the tribunal
• Issue of Finality: The parties to the dispute invariably seek redressal in the Supreme Court. The reluctance of the state to accept tribunal awards have compounded the delay.