THE CONTEXT:

There is a suppression of dissent and the manipulation of law enforcement and public sentiment by the ruling party in India. They conflated the ruling party with government machinery, leading to a near-perfect alignment of political agendas with law enforcement actions. This situation raises concerns about the erosion of democratic principles and the rise of majoritarianism, posing significant challenges to the functioning of democracy in the country.

THE ISSUES:

• Freedom of Expression (Article 19(1)(a)): The incidents described highlight the misuse of these restrictions to stifle dissent and criticism of the ruling party, raising questions about the balance between freedom of expression and reasonable restrictions. However, the Indian Constitution guarantees the right to freedom of speech and expression, which is fundamental for the functioning of a democracy. However, this right is subject to reasonable restrictions under Article 19(2) for reasons such as the sovereignty and integrity of India, public order, decency, or morality.
• Right to Equality (Article 14): This article ensures equality before the law and equal protection of the laws within the territory of India. The selective enforcement of laws and targeting of individuals based on their political views or affiliations challenge the principle of equality and non-discrimination.
• Right to Life and Personal Liberty (Article 21): The arbitrary detention of individuals, including the complainant and victims in the first incident, infringes upon their right to life and personal liberty, highlighting the need for police reform and accountability.
• Police Reforms: The Second Administrative Reforms Commission (2007) recommended comprehensive police reforms to ensure that the police act in a politically neutral manner, respecting human rights and the rule of law. The incidents underscore the urgent need to implement these reforms to prevent the misuse of police powers for political purposes.
• Sedition Law: Various committees, including the Law Commission of India, have discussed the need to reconsider or repeal the sedition law (Section 124A of the IPC), which has been used to criminalize dissent and suppress free speech. The application of sedition charges in situations that do not meet the Supreme Court’s criteria for incitement to violence or disorder reflects the misuse of this colonial-era law.
• Majoritarianism and Democracy: The Sachar Committee Report (2006) and the Ranganath Misra Commission Report (2007) have addressed issues related to social inclusion and the protection of minority rights. The rise of majoritarianism, as highlighted in the incidents, threatens the pluralistic fabric of Indian society and the principles of secularism and democracy enshrined in the Constitution.

THE WAY FORWARD:

• Implement Police Reforms: Comprehensive police reforms are crucial to ensure law enforcement agencies operate impartially and are not influenced by political pressures. The recommendations of the National Police Commission, the Padmanabhaiah Committee, and directives from the Supreme Court, such as establishing State Security Commissions and ensuring a minimum tenure for the Director General of Police, should be implemented.
• Strengthen Freedom of Expression: The Constitution of India guarantees freedom of speech and expression, but it is subject to reasonable restrictions. There is a need to clearly define these restrictions to prevent their misuse against dissenting voices. Legal safeguards should be enhanced to protect the freedom of the press and expression against arbitrary executive actions.
• Review and Amend Laws Used to Suppress Dissent: Laws such as sedition (Section 124A of the IPC) and national security often used to curb dissent should be reviewed and amended. This would ensure that they are not misused to silence opposition or criticism of the government.
• Judicial Oversight and Independence: The judiciary safeguards democracy and fundamental rights. Ensuring the independence of the judiciary and its proactive role in checking executive excesses and protecting civil liberties is essential.
• Encourage Inclusive Dialogue and Tolerance: Initiatives to promote interfaith dialogue, multiculturalism, and tolerance are essential to counter majoritarianism and polarization. Civil society organizations, educational institutions, and the media can significantly foster an inclusive and pluralistic society.
• Strengthen Civil Society and Media: A vibrant civil society and an independent media are pillars of democracy. Supporting NGOs, activists, and journalists who work to hold the government accountable and provide a platform for diverse voices is crucial for a healthy democracy.

THE CONCLUSION:

Addressing the challenges highlighted requires concerted efforts from the government, judiciary, civil society, and citizens. While legal and institutional reforms are essential, societal changes toward more inclusive, tolerant, and participatory democracy are equally important. The solutions outlined above, drawn from various recommendations and analyses, provide a roadmap for strengthening democracy in India.

UPSC PAST YEAR QUESTIONS:

Q.1 ‘Constitutional Morality’ is rooted in the Constitution and founded on its essential facets. Explain the doctrine of ‘Constitutional Morality’ with the help of relevant judicial decisions. (2021)

Q.2 The Indian party system is passing through a transition phase which looks full of contradictions and paradoxes.” Discuss. (2016)

Q.3 What do you understand by the “freedom of speech and expression” concept? Does it cover hate speech also? Why do films in India stand on a slightly different plane from other forms of expression? Discuss. (2014)

Q.4 The Rules and Regulations provided to all civil servants are the same, yet there is a difference in performance. Positive-minded officers can interpret the Rules and Regulations in Favor of the case and achieve success, whereas negative-minded officers cannot achieve goals by interpreting the same Rules and Regulations against the case. Discuss with illustrations. (2022)

Q.5 Discuss the Public Services Code as recommended by the 2nd Administrative Reforms Commission. (2016)

MAINS PRACTICE QUESTION:

Q.1 Analyze the notion of majoritarianism in Indian democracy. How does it impact the fundamental right to dissent and minority interests, as provided by the Indian Constitution?

SOURCE:

https://indianexpress.com/article/opinion/columns/accessibleindia-can-mughalhistory-inspire-modern-inclusion-9162126

THE CONTEXT:

The Tamil Nadu Governor’s refusal to read a state government-drafted speech citing falsehoods politicizes the Governors’ statutory address. This highlights the tension between appointed Governors and elected state governments and their non-partisan role conflict.

THE ISSUES:

• Governor’s Role in a Parliamentary Democracy: In a parliamentary democracy, the Governor’s role is mainly ceremonial, and they are expected to follow the elected government’s advice. The recent controversy regarding Tamil Nadu Governor R.N. Ravi’s refusal to read out a DMK-run government address highlights the need for the Governor to remain apolitical and unbiased, as mandated by the Constitution.
• Centre-State Relations and Criticism in Governor’s Address: The Governor’s address should reflect state policies & achievements, despite criticism of the Centre. Refusal to read based on misleading claims will infringe on the state’s right to articulate its stance.
• Dignity of the Assembly and Conduct of Constitutional Functionaries: The conduct of constitutional functionaries, such as the Governor and the Speaker, should uphold the dignity of the Assembly. Any public disagreement or confrontation between these functionaries can detract from the solemnity and respect due to legislative institutions.
• Governors as Political Agents of the Ruling Party at the Centre: Governors who act as political agents for the central government are compromising the autonomy of state governments and disrupting the federal balance. This issue deserves urgent attention to maintain the integrity of the constitutional authorities.
• Constitutional Powers and Limitations of Governors: Governors have limited discretionary powers that should be exercised judiciously. Using these powers to obstruct or undermine state governments led by political adversaries is misusing the gubernatorial office.

THE WAY FORWARD:

• Code of Conduct for Governors: A ‘Code of Conduct’ should be established and approved by the state governments, the central government, the parliament, and the state legislatures. This would lay down norms and principles to guide the governor’s functions, ensuring that their actions align with constitutional expectations and are not influenced by partisan interests.
• Transparent Appointment Process: The procedure for appointing governors should be laid down, with the conditions of appointment made explicit. This could involve a more transparent and consultative mechanism, such as a collegium or a parliamentary committee, to select candidates based on merit and suitability, thus reducing political bias in appointments.
• Limiting Discretionary Powers: Healthy conventions should guide the discretionary powers of Governors and should not be used to favor a particular political party. The Supreme Court’s ability to investigate claims of malafide in the Governor’s report could be extended to cover malafide in the invitation process to form a government.
• Stability and Autonomy for States: To ensure more stability and autonomy for the states, it is suggested that a governor should be removed only by a resolution of the state legislature. This would prevent arbitrary removals and reinforce the federal structure.
• Judicial Intervention: The Supreme Court can continue to monitor the conduct of governors and issue directions or observations to ensure that their actions are not arbitrary or partisan, thus upholding the federal principle of Indian polity.
• Constitutional Amendments: Amendments to the Constitution could be made to change governors’ appointment and removal process, making it more difficult to remove them without substantial grounds, such as requiring a resolution of the state legislature or a judicial review.
• Accountability to State Legislature: Consider making the governor accountable to the state legislature, like how the President is accountable to the Union Parliament. This would enhance the governor’s responsibility towards the state’s interests.
• Regular Review and Recommendations: Committees like the Sarkaria and Punchhi Commission have recommended improving Centre-State relations. Regular reviews and implementing such recommendations can help address the evolving dynamics of federalism.
• Education and Training: Educating and training governors about their constitutional roles and responsibilities can help prevent the misuse of their office. This would also include emphasizing the importance of maintaining the dignity of the Assembly and the conduct of constitutional functionaries.

THE CONCLUSION:

The central government’s misuse of the governor’s role for political gain challenges the principles of federalism and risks undermining respect for the position. This could negatively impact democracy and governance at the state level. Addressing this issue and ensuring the governor’s role remains impartial is essential.

UPSC PAST YEAR QUESTIONS:

Q.1) Discuss the essential conditions for the exercise of the legislative powers by the Governor. Discuss the legality of the re-promulgation of ordinances by the Governor without placing them before the Legislature. (2022)

Q.2) Whether the Supreme Court Judgement (July 2018) can settle the political tussle between the Lt. Governor and elected government of Delhi? Examine. (2018)

Q.3) Discuss the essentials of the 69th Constitutional Amendment Act and anomalies, if any, that have led to recently reported conflicts between the elected representatives and the institution of the Lieutenant Governor in the administration of Delhi. Do you think that this will give rise to a new trend in the functioning of Indian federal politics? (2016)

MAINS PRACTICE QUESTION:

Q.1) Discuss the recent controversy surrounding the refusal of Tamil Nadu Governor to read out the address prepared by the state government, citing misleading claims and facts. What are the implications of such actions on Centre-State relations and India’s federal structure?

SOURCE:

https://www.thehindu.com/opinion/editorial/the-real-travesty-the-hindu-editorial-on-the-governor-of-tamil-nadu-and-the-governors-address/article67838996.ece

THE CONTEXT: Indian states ruled by opposition parties are protesting the central government’s distribution of tax revenues and imposition of borrowing limits, raising concerns about fiscal federalism principles.

ISSUES:

• Tax Devolution and Revenue Sharing: Karnataka’s Chief Minister protested the Centre’s alleged discrimination in the devolution of tax revenues. The reduction of Karnataka’s share in the divisible tax pool from 4.713 to 3.647 percent between the 14th and 15th Finance Commission awards is a point of contention. This has financial implications for the state, potentially affecting its ability to fund various programs and meet its expenditure needs.
• Borrowing Limits: Kerala’s Chief Minister has moved the Supreme Court against the Centre’s imposing limits on the state’s borrowing powers. The Centre’s actions are seen as encroaching on the state’s fiscal sovereignty, potentially leading to a financial crisis for Kerala by limiting its ability to manage its budget and fund development projects.
• Off-Budget Borrowing: Karnataka and Kerala have engaged in fiscally questionable practices. Kerala has sought to circumvent its net borrowing ceiling by resorting to off-budget loans raised by state-owned entities. This can lead to understating the state’s debt and deficit figures, potentially masking the true extent of its financial liabilities.
• Fiscal Irresponsibility: The ruling Congress in Karnataka has been criticized for its fiscal irresponsibility, particularly for announcing five assembly poll “guarantee” schemes costing the state exchequer an additional Rs 52,000 crore per year. This could exacerbate the state’s financial strain and impact its fiscal sustainability.
• GST and Fiscal Sovereignty: Implementing the Goods and Services Tax (GST) has replaced major sources of revenue for the states, such as the value-added tax. Although the states accepted this loss of fiscal sovereignty through a consensus-building process, there are concerns about the adequacy of compensation for potential revenue losses under the new tax regime.
• Political Implications: The timing of the protests by Karnataka and Kerala, ahead of Lok Sabha elections, and the fact that both states are opposition-ruled suggests a political dimension to these financial disputes. This could lead to politicizing fiscal federalism issues, potentially affecting the cooperative relationship between the Centre and the states.

THE WAY FORWARD:

• GST COUNCIL 2.0: There is a need for a new grand bargain between the Centre and the states to address the issues of tax devolution and resource transfers. This would involve clear and transparent rules for distributing the Centre’s tax proceeds and grants-in-aid.
• Fiscal Equalization: Commissions must move towards fiscal equalization to address the vertical fiscal imbalance. This would require a sense of direction to achieve a more balanced distribution of financial resources between the Centre and the states.
• Transparent Rules for Resource Transfers: The next Finance Commission should frame clear and transparent rules for distributing the Centre’s tax proceeds and grants-in-aid. This would help ensure fairness and equity in the distribution of financial resources.
• Adherence to Fiscal Responsibility: States should strictly adhere to deficit targets and borrowing limits, while the Centre must desist from levying non-sharable cesses and surcharges on taxes. Addressing Fiscal Irresponsibility: States must exercise fiscal responsibility and avoid fiscally irresponsible actions, such as announcing costly guarantee schemes without adequate financial planning.
• Public Support and Effective Implementation: While guarantee schemes may enjoy popular support, ensuring their effective implementation and assessing their impact on public finances is essential. Public opinion and effectiveness assessments should inform the design and implementation of such schemes.
• Cooperative Approach: Both the Centre and the states need to adopt a cooperative approach to address the genuine concerns about fiscal federalism. This would involve constructive dialogue, consensus-building, and a willingness to find mutually acceptable solutions to the financial issues raised.

THE CONCLUSION:

The states demand fairer, clearer, and more transparent fiscal rules that govern tax devolution and borrowing practices, coupled with a collective call for responsible financial governance and equitable treatment by the Centre to maintain the federal balance.

UPSC PAST YEAR QUESTION:

Q.1) Explain the significance of the 101st Constitutional Amendment Act. To what extent does it reflect the accommodative spirit of federalism? (2023)

Q.2) How have the recommendations of the 14th Finance Commission of India enabled the States to improve their fiscal position? (2021)

MAINS PRACTICE QUESTION:

Q.1) Examine the issues related to vertical and horizontal imbalances in tax devolution in the Indian federation, considering recent events involving state protests and the Centre’s fiscal policies. Critically analyze the role of Finance Commissions and the potential impact of the Goods and Services Tax (GST) on fiscal federalism.

SOURCE:

https://indianexpress.com/article/opinion/columns/uttarakhand-uniform-civil-code-young-people-sexuality-9151154/

THE CONTEXT: The debate surrounding Kerala’s protest of the Centre’s imposition of a Net Borrowing Ceiling (NBC) underscores a growing concern over the erosion of fiscal federalism in India. This brings into the limelight the conflict between the constitutional autonomy of states to manage their finances and the Centre’s regulatory mechanisms intended to ensure fiscal discipline and transparency.

THE ISSUES:

• Net Borrowing Ceiling (NBC): The NBC is a limit set by the Centre on the total amount that states can borrow from all sources, including open market operations and loans from state-owned enterprises. Specific to Kerala, the NBC now includes debts incurred by the Kerala Infrastructure Investment Fund Board (KIIFB), which funds infrastructure projects through extra-budgetary routes. Including KIIFB’s debts under the NBC restricts Kerala’s financial autonomy, directly impacting its ability to fund welfare schemes and pensions.
• Constitutional Limits and Fiscal Federalism: Article 293(3) requires states to seek the Centre’s permission to borrow if they have any outstanding federal loans. The imposition of the NBC by the Centre is under this article, which Kerala contends is a violation. Kerala’s legal stance to move to the Supreme Court suggests that the Centre’s decision infringes on the state’s constitutional rights to manage its public debt (Entry 43, State List) and public accounts (Article 266(2)).
• State Fiscal Responsibility and Transparency: Kerala Fiscal Responsibility Act, 2003 mandates reducing the fiscal deficit to 3% of Kerala’s Gross State Domestic Product (GSDP) by 2025-26. Kerala’s fiscal deficit has been reported at 2.44% and the revenue deficit at 0.88% of the GSDP, indicating a responsible fiscal approach compared to the Centre’s fiscal deficit, pegged at 5.8% for 2023-24.
• Impact on Governance and Welfare Implications: The restricted borrowing capacity directly impacts the state’s social obligations, such as funding pensions and welfare programs essential for balanced socio-economic development. The KIIFB’s innovative financial strategy for infrastructure development in Kerala is a model of how state autonomy can be effectively utilized for the public good, which NBC hinders.
• Assessment of Federal Dynamics: The shift in Federal Structure by transitioning from cooperative federalism towards a more ‘annihilative federalism,’ where the Centre’s stringent controls over state finances limit the states’ operational independence. Examination of this shift in India’s federal structure reflects on the long-term implications on centre-state relations and the principle of subsidiarity.
• Borrowing Restrictions: The 15th Finance Commission recommended that 41% of the net proceeds of Union taxes be shared with the states. However, the Centre’s decision to include off-budget borrowings done by states while deciding their borrowing limits led to a sharp decrease in such borrowings. This has been seen as a restriction on states’ ability to borrow and manage their finances, with Kerala particularly affected due to the inclusion of the debt of KIIFB in the NBC.

THE WAY FORWARD:

• Seek Judicial Clarification: Given that Kerala has moved the Supreme Court on the matter, one solution is a judicial review of the constitutional validity of the NBC with respect to Article 293(3) and Article 266(2). The Court’s interpretation could resolve disputes regarding the constitutional limits of the Centre’s authority over state borrowing.
• Review of 15th Finance Commission Recommendations: The issues stemming from interpreting the 15th Finance Commission’s recommendations could be re-examined. States can engage with the Finance Commission or the Union Finance Ministry to advocate their concerns and seek a more nuanced approach that doesn’t infringe on states’ fiscal autonomy while upholding fiscal sustainability.
• Legislative Action: Parliament could consider enacting legislation or amending existing laws (subject to constitutional limits) to clarify the scope of central oversight on state borrowings. This should respect the balance of fiscal federalism and be designed after extensive consultations with states.
• Strengthen Cooperative Federalism: Regular high-level meetings between the Centre and States, through forums like the GST Council or a specially convened fiscal policy council, could help facilitate dialogue. These meetings would aim to negotiate borrowing limits and ensure that states have enough financial leeway to meet their obligations.
• Promote Fiscal Responsibility at the State Level: States can take proactive steps to strengthen their fiscal management, as Kerala has done through the Kerala Fiscal Responsibility Act. By setting clear deficit targets and budget management practices, states can demonstrate their commitment to fiscal prudence, potentially increasing their negotiating power with the Centre.
• Build a Consensus on Public Account Handling: The issue of including public account withdrawals within the NBC could be addressed by building a broader consensus among all states, which can then be presented to the Centre in a united front to exclude such transactions from the borrowing limits.
• Economic Reforms and Growth Promotion: Widening the tax base through economic reforms, boosting the investment climate, and promoting growth in the state’s own-source revenue can be sustainable ways of ensuring sufficient funds for state spending without reliance on borrowings.

THE CONCLUSION:

Kerala’s challenge against the Centre’s Net Borrowing Ceiling (NBC) imposition highlights a significant constitutional dispute over fiscal federalism and state autonomy in financial management. The state argues that the Centre’s restrictions on borrowing, including debts of state-owned enterprises and public account balances, infringe upon its constitutional rights. This legal battle underscores the tension between central oversight and state fiscal independence, potentially reshaping the dynamics of federal-state financial relations in India.

UPSC PAST YEAR QUESTION:

Q.1 Though the federal principle is dominant in our Constitution and that principle is one of its basic features, but it is equally true that federalism under the Indian Constitution leans in favour of a strong Centre, a feature that militates against the concept of strong federalism. Discuss. (2014)

Q.2 The concept of cooperative federalism has been increasingly emphasized in recent years. Highlight the drawbacks in the existing structure and the extent to which cooperative federalism would answer the shortcomings. (2015)

Q.3 How far do you think cooperation, competition, and confrontation have shaped the nature of federation in India? Cite some recent examples to validate your answer. (2020)

Q.4 Public expenditure management was a challenge to India’s government in the context of budget-making during the post-liberalization period. Clarify it. (2019)

Q.5 What are the reasons for introducing the Fiscal Responsibility and Budget Management (FRBM) Act, 2003? Discuss its salient features and their effectiveness critically. (2013)

MAINS PRACTICE QUESTION:

Q.1 Critically examine the contention between the State of Kerala and the Centre over the imposition of a Net Borrowing Ceiling (NBC) concerning Article 293(3) of the Indian Constitution. Analyze the implications of such a ceiling on fiscal federalism and state autonomy, along with its potential impact on state welfare schemes and infrastructure projects.

SOURCE:

https://www.thehindu.com/opinion/op-ed/the-severe-erosion-of-fiscal-federalism/article67818283.ece