A series of legitimate and legitimised initiatives and interventions by the Judiciary and other non-Executive arms of the Indian State like the Election Commission, the CAG and the CVC, and murmurs of protests are discernible about their current roles viz those conferred on them at the commencement of the Constitution. The questions should also pertain to independent mechanisms that are at the disposal of such institutions, or their relative absence, if the present-day momentum has to be sustained and strengthened over a period.
There is also the other parallel. The ever-evolving global situation, for instance, has laid greater stress on the sustainability of natural resources at our disposal. Ecology and environment have suddenly acquired the kind of importance that had not been in vogue when the Constituent Assembly drew up the Chapters on Centre-State Relations and drew up the Concurrent List of power-sharing. Today, over-powering interest over the environment in certain circles has caused overlapping interests and responsibilities, initiating avoidable ambiguities, whose political fallout are yet to be felt.
Environmental issues and the law
Today, no infrastructure or developmental project could move anywhere in the country without prior environmental clearance. The powers of the Union Environment Ministry, which term was originally thought of as a new jargon for the Forest Ministry, had started off with pollution control measures and later extended to coastline management concerns. While on pollution-control, the Centre shared the responsibilities with the States, that was not necessarily the case when it came to the delineation of the 'Coastal Regulatory Zone' (CRZ) and the like. Today, it is all-pervasive, with additional aspects to rules that govern the construction of houses and office buildings, too. This used to be a right traditionally residing not in the State Governments, but in local-self government institutions, down to the last panchayat.
All this have come at a time when the panchayati raj institutions, created through national will and under the Constitution, are already dithering about their own role, rights and responsibilities. Added to this are the imbalances in the power-sharing mechanisms between the State Government and the panchayati raj institutions, as the compromised approach of the Rajiv Gandhi scheme has proved its inadequacies, as anticipated. Kerala is possibly the only State where the spirit of the constitutional provision has been employed to practical levels of lower-level governance. It has proved to be successful and non-interfering in terms of the powers and rights that the panchayats might have grabbed from the State Government. Yet, other States are not even known to be considering the advisability of adhering to the 'Kerala model', leaving yet another constitutional provision relatively meaningless.
It is not just States and State Governments that are affected by what interested parties dub 'anarchist'. Even departments at the Centre and PSUs under them feel the shock that is being regularly administered by the Environment Ministry. In some of the more recent cases involving assigning of 'forest lands' for industrial projects, often in the private sector, the Ministry has come to play a role bigger than that of the Government itself, in terms of enforcing social and economic equity. The Ministry is now often seen as speaking up for the un-empowered sections of the population, comprising tribal villagers in this case. The same holds true about the use, misuse and abuse of forest lands and produce. The national discourse on the revival of the Naxalite menace over the past couple of years took a curious turn, when socio-economic issues came to be flagged and the assignment of those lands for non-tribal use came to be questioned. In turn, this has raised questions about balancing development and land-use behaviour.
In all this, the Ministry's role has been legitimised, often post facto, by the higher judiciary. Where the Ministry too is seen as failing, the Supreme Court has stepped in. So have various High Courts in the lower rung. The court-ordered suspension of minerals-mining in Karnataka and sand-mining in Tamil Nadu are a case in point. So also are the instances of courts engaging in land-use issues in States like Uttar Pradesh and West Bengal. The question remains: when and how the trickle-down effect of judicial pronouncements of the kind would enter the portals of the subordinate courts, when the evolution of the judicial processes in such cases itself is still in their infancy. It is too early to predict, or even foresee, if and how they would all fall in place against a larger scheme and backdrop.
Agriculture and fisheries are other areas, for instance, where the question of sustainability is being thrown at developing nations like India. The constitutional scheme provides for these two sectors to remain in the State List. Agriculture income is also not being taxed, providing a traditional source for the generation of black money, which the nation otherwise loathes. Fisheries sector has become more complex after it moved away from the inland and the hinterland into neighbourhood seas and the deep-sea. Modern technology that the West and the international agencies under their care had promoted in the past is now being touted as a bane. There is a need for regulation in the larger cause of sustainability of the fish and fisheries, we are now being told. This involves a common and conducive approach by the Centre and the States together, with both identifying their respective responsibilities during the transition period, and adhering to them.
Inter-State water disputes
There are other areas, too, that are causes for concern. The burgeoning number of river water disputes between States has a tendency to prolong the agony. In States that suffer from a plethora of such cases for historic reasons, the public mood is also coming under increasing stress, that too in the absence of solutions or alternatives emerging in the interregnum. The Centre's current attempts to confer exclusive powers on dam-construction where they are located from the pre-Independence era have suddenly become an inter-State issue.
The Ravi-Beas dispute among the riparian States in the North has been known for long, where the separatist, terror movement in Punjab sought to project it as one more case of wanton bias. Tamil Nadu is another typical example in this case, too, as in the case of inter-State river water disputes. In their eyes at the very least, the Union has failed to address their legitimate concern while other arms of the Constitution like the office of the President and the higher judiciary have not been effective in the matter. This is the kind of strain that the Indian nation and the Indian State could do without. They are however spreading and are also taking deeper roots, elsewhere, too, though the reasons may vary.
Avoidable stress, unavoidable strain
The post-Republic evolution of the global scenario has created niche areas where the contours of the Concurrent List have come under avoidable stress and unavoidable strain. The creation of institutions such as the National Investigation Agency (NIA) to investigate all cases of terrorism in the country tends to usurp certain inherent powers of State Governments on the Law & Order front. The creation of the Lok Ayukta with a police force of its own in Karnataka, for instance, and the demand for creating a parallel set-up under the proposed Lok Pal at the Centre would further cut into such powers of both the Centre and the State Governments in terms of investigation crimes under the law. Earlier, criminal cases other than those covered under the Punjab Police (Special Powers) Act, the CBI had to be invited by the State Governments concerned. Today, more often than not, it is the courts that are ordering CBI probes in States after the decentralised Government scheme are seen as failing.
The inevitable over-lapping of tasks thus assigned, as also politically-motivated attempts to derail the processes from time to time could become numerous in good time. In turn, this could defeat the very purpose of the creation of such institutions, but could also add to the prevailing confusion and complexity. The State machinery could come to a stand-still. This when the State Governments, as also the Centre, are mighty reluctant to follow the Supreme Court directions on transparency in police administrations, as outlined in the 'Prakash Singh case', and drafted from the National Police Commission Report.
The Sarkaria Commission and the Venkatchalaiah Commissions did their bit in their times, but the follow-up on even those limited recommendations have been tardy. The Supreme Court, from time to time, has re-defined the role of constitutional institutions, their powers and responsibilities. Included in the long list are land-mark pronouncements as in the 'Keshavananda Bharati case', the 'S R Bommai case' and the 'Mandal case'. In most such cases, however, the judicial pronouncements remain the only tool, with the Executive and the Legislature not having initiated any effort to institutionalise them as positive aspects of the Constitution through timely amendments.
Conversely, the Supreme Court, having created a new mechanism for the appointment of the CBI Director, through the CVC and setting down qualifications and processes for the selection of both, finds itself helpless when the Executive violates them with immunity. The 'P J Thomas case' is one in point. Having entrusted the CVC with the supervision of the CBI probe into various misdemeanour through the judgment in the 'Vineet Narain case', the court was later forced to supervise the '2-G scam' investigations, as the credibility of the CVC had already been lost.
Checks and balances
All this also raises questions about the checks-and-balances outlined under the constitutional scheme at birth. By supervising the CBI investigations in the 2-G scam, for instance, the Supreme Court may have become both the prosecuting agency and also the judge of the last course. When the heat becomes less, and liberty, if not lives are in question, an argument could be put forward at an appropriate forum if this was not a travesty of justice as imbibed from the constitutional scheme, and upheld by the higher judiciary.
There is an unavoidable tendency for the lower courts in such cases to take their cue from the day-to-day proceedings before and pronouncements by the Apex Court, with not pronounced verdict of the latter to go by as a direction, precedent, or both. This is a dangerous trend. In turn, it can create across-the-board judicial chaos, which in time could prove to be worse than the problem. Charges of a 'judicial oligarchy' replacing parliamentary democracy could then be heard. Worse still, in the absence of an Executive mechanism at its disposal, the Judiciary, and other constitutional organs like the CEC, CAG and CVC, could find their functions crippled by an over-zealous Executive seeking to protect its traditional turf.
It is in this overall background that an early review of the constitutional scheme, particularly pertaining to Centre-State relations on the one hand, and the division of duties and responsibilities among the various arms of the State, on the other becomes an imperative. While past efforts by the Sarkaria Commission and the Venkatachalaiah Commission, as also the various pronouncements of the Apex Court was focussed mostly on Centre-State relations, there is now an increasing need to widen the scope of the discourse on this score - and also expand to include new areas of concerns, as involving the various arms of the State, as already explained. How and when it should be done remains to be decided, but a honest review of the kind cannot be put off eternally without putting the existing constitutional scheme under greater strain than already.
The views expressed above belong to the author(s). ORF research and analyses now available on Telegram! Click here to access our curated content — blogs, longforms and interviews.
PREV
