To
Respected Chief Ministers
Subject:- Centre’s onslaught on federalism- Some Governors playing extra-Constitutional role
Sir,
I have addressed you time and again on the political executive at the Centre systematically infringing the lakshman rekha of federalism to diminish the political space of the opposition parties in power in the States.
In particular, the Centre has progressively constricted the role of the Finance Commission during the last 8 to 9 years by unduly enlarging the quantum of funds flowing to the States under Article 282 of the Constitution, doing away with the concept of rule-based allocations to the States that the Finance Commission makes in consultation with the States, which effectively implied an increasing intrusion on the part of the Centre into areas that legitimately belong to the States and consequently enlarging the presence of its political executive in many welfare schemes implemented by the States at the cost of the political parties in power in the States.
During the last few years, the Centre, instead of taking responsibility for the mismanagement of coal supplies for the power sector, has forced the States to rely more and more on imported coal that benefitted a few private companies at the cost of the DISCOMs and the consumers. The Centre has also imposed expensive renewable power obligations on the States to cripple the finances of the DISCOMs and hurt the consumers’ interests. It is doubtful whether the diktats issued by the Centre in these matters had adequate legal sanction.
In recent times, the Centre acted unilaterally, without consulting the States, to introduce three farm laws and a Bill to amend the Electricity Act of 2003, which would unduly benefit private corporates at the cost of the farmers and the disadvantaged sections of the electricity consumers.
The recent tendency on the part of the political executive at the Centre to misuse its investigating agencies to target the opposition selectively, to interfere with and weaken regulatory institutions to disturb the level playing ground between the Centre and the States seems to be yet another part of its attempt to dilute federalism and weaken the opposition.
Some incumbents of the high office of the Governor, instead of acting in an apolitical manner as envisaged in the Constitution, have chosen to act as agents of the political executive at the Centre. There have been reports of persons against whom there are court cases pending and persons known to have been funded by dubious agencies being elevated to the office of the Governor in some States. If such reports are correct, it raises questions about the procedure of appointment of Governors.
Of late, there have been instances of Governors in some States going to the extra-ordinary length of withholding assent to Bills approved by the State legislature, without citing any valid justification, thus interfering with governance in the States and making a mockery of the letter and the spirit of federalism. Some States were forced to seek judicial intervention for directing the concerned Governors to expedite approving the pending Bills!
More recently, we had instances in which the governors in some States ruled by the opposition, openly sided with the party in power at the Centre and got involved in attempts to replace the State’s political executive with the party in power at the Centre. When the Governor of Maharashtra got involved in a similar matter, it became a subject of judicial scrutiny. In that connection, the Hon’ble Supreme Court made the following important observation (Judgement dated 11-5-2023 in WP(C) 493/2022)
“The Constitution empowers the elected representatives to act on behalf of the people. Consequently, the Governors who despite their constitutional status is unelected, is vested with limited discretionary powers. …The power of the Governor to act without the aid and advice of the Council of Ministers is of an extraordinary nature. The exercise of such power has ramifications on parliamentary democracy. …..Governor is the titular head of the State Government. He is a constitutional functionary who derives his authority from the Constitution. This being the case, the Governor must be cognizant of the constitutional bounds of the power vested in him. He cannot exercise a power that is not conferred on him by the Constitution or a law made under it. Neither the Constitution nor the laws enacted by Parliament provide for a mechanism by which disputes amongst members of a particular political party can be settled. They certainly do not empower the Governor to enter the political arena and play a role (however minute) either in inter-party disputes or in intra-party disputes”
On the other hand, there have also been instances of Governors not fulfilling their Constitutional obligations, for example, in exercising oversight on administration in areas notified under the Fifth Schedule, which has hurt the interests of the tribals.
I believe that the federal structure defined in the Constitution is part of its basic structure and both the Centre and the States should collectively safeguard it in recognition of the need to respect the country’s regional diversity and for promoting governance based on democratic principles. Any attempt to dilute it needs to be discouraged.
It is in this connection that I appeal to the States to come together to form a “federal front” to take up these issues with the Centre for urgent resolution. The States cannot afford to delay it any longer.
Regards,
Yours sincerely,
E A S Sarma
Former Secretary to the Government of India
Visakhapatnam
