By Neville Ladduwahetty

THE ISLAND – August 6, 2014  http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=107986

August 5, 2014, 7:25 pm

Dr. K. Vigneswaran’s (KV) response (The Island, July 28, 2014) to my article of June 9, 2014 titled “India’s call for full implementation of 13-A” has been given a different title: “Full implementation of 13-A”. The difference between them says it all. My article was addressed specifically to India, and was intended to bring to the attention of the new administration of India under Prime Minister Modi, the factual situation regarding 13-A. On the other hand, KV has indulged in a comparative presentation of constitutional provisions of 13-A in Sri Lanka vis-à-vis constitutional provisions for States in India, completely missing the thrust of my article and going off on an excursion of his own creation.

Starting from paragraph 1 of my article, reference is made to Prime Minister Modi , and I specifically state that “The following are the realities that India should be aware of “, and went on to cite 10 specific facts that “India should be aware of”. The focus of my article was to bring to India’s attention the near identical provisions that exist between those granted to States in India and to Provinces in Sri Lanka under 13-A, in respect ONLY of Executive and Legislative powers starting from Article 153 onwards and how 13-A was operating on the ground. It was not a comparison of the scope of devolved powers in the 2 countries.

KV having conceded that “certain sections of the 13th Amendment is near identical to that in the Indian Constitution”, goes on to state that “its scope and extent have been deliberately undermined by…a separate Provincial Council Act”. As proof he states: “The recommendations of the Governor has to be obtained prior to placing the statutes before the Provincial Council”. This provision in the Act does not apply to every statute. Section 24 applies primarily to issues relating to finance and any others that come within the jurisdiction of the Governor. Refer Section 24 (a) to (d) and 24 (2) and (3). The limitation provided for in Section 24 is as it should be, because the Governor is responsible for all Executive functions including Finance. To interpret and imply that it applies to all statutes is to be disingenuous.

The need to limit constitutional provisions in India and Sri Lanka to provisions relating to the Governor and the Provincial Council is evident from facts Nos. 4 and 5 cited in my article. The reason for emphasizing the near identical scope and content as well as the wording of the constitutional provisions in India and Sri Lanka in relation to the Executive represented by the Governor and the Legislature represented by the Provincial Council, was because such powers matter more than the gamut of devolved powers. To explain why devolution works in India but not in Sri Lanka solely in terms of devolved powers makes no sense because what gives meaning and substance to devolved power is the combined effort of the Provincial Council and the Governor. At the end of the day it is the Governor and the Provincial Council that make devolution work by giving life to the devolved powers.

In this background, comparing the extent of powers devolved in India with that in Sri Lanka has no relevance and if KV chooses to indulge in an exercise of his own choosing it is his prerogative. However, since an opportunity has been presented I intend to address three issues namely, Article 74 of the Indian Constitution and Police and Land Powers under 13-A as follows:

ARTICLE 74. KV suggests that Article 53 of India’s Constitution should be read with Article 74 and states: “Only then does the Prime Minister become the Head of the Government of India”. This is a misreading of the Indian Constitution wherein it is clearly stated thus:

Article 53. “The Executive power of the Union”

(1) “The executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution”

Article 74. “Council of Ministers to aid and advise President”.

(1) “There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall in the exercise of his functions, act in accordance with such advice”:

“Provided that the President may require the Council of Ministers to reconsider such advice either generally or otherwise, and the President shall act in accordance with the advice rendered after such reconsideration”.

Comment: It is clear from the foregoing that Executive powers of the Union are vested in the President and that the Prime Minister and the Council of Ministers are expected to “aid and advise” the President who shall act in accordance with such advice. Therefore, the Prime Minister according to the constitution of India is not the “Head of the Government of India”.

POLICE POWERS. KV states: “The D.I.G. of the Province is appointed by the IGP with the concurrence of the Chief Minister and is subject to the control of the IGP during periods of emergency”. This is not correct.

Appendix 1 List 1 of 13-A Clause 11.1 states: “The D.I.G. of the Province shall be responsible to and under the control of the Chief Minister thereof in respect of the maintenance of public order…”.

Clause 11: 2 (a) states: upon the declaration of an emergency in the Province, the President may assume such powers and responsibilities of the Chief Minister and the Provincial Administration in respect of public order…”

Clauses 12:3 states: “Where a State of Emergency is declared in the Province the I.G.P. may deploy such units of the National Division as he deems necessary…”.

Comment: Nowhere is there any mention that the D.I.G. of the Province would be under the “control of the I.G.P. during periods of emergency”. Instead, since the President would be assuming the powers and responsibilities of the Chief Minister upon the declaration of an emergency the I.G.P. may deploy units of the National Police Division as deemed necessary to serve under the D.I.G. of the Province to maintain public order.

1. KV states: “In India, the subject of land is completely devolved to the States. In Sri Lanka, state land is vested in the Republic…” and “Appendix II clearly states that the Center cannot utilize any state land in a Province without consulting the Provincial Council” and that “this condition has been observed in the breach”.

Comment: The difference in respect of land between India and Sri Lanka is clear and understandable in view of its respective histories. Historically, land in India never belonged to a single ruler representing a unified realm. India was always made up of hundreds of autonomous principalities with the land within each principality belonging to its ruler. This was so even during the British Colonial rule. Thus, all land that was not privately owned naturally came under the jurisdiction of each State.

This was in contrast to the case of Sri Lanka where authority over all land came under the jurisdiction of the king and the kingdom. This millennial tradition continued so that Land in Sri Lanka became vested in the Republic. Appendix 11 of List 1 only reflects this tradition.

Despite the need for the Center to consult the Provincial Council in respect of utilization of land for a reserved or concurrent subject the provision in List II (Reserved List) states that “National Policy on all Subjects and Functions” overrides this requirement when it comes to any issue of national importance such as security, defence and multi-purpose infrastructure projects. This enables National interests to prevail over Provincial interests. Similar safeguards are provided in most Constitutions. For instance, the sub-title of Article 249 of the Indian Constitution states: “Power of Parliament to legislate with respect to a matter in the State List in the National interest”. Therefore, the notion that the Center cannot use state land without consulting the Provincial Councils does not apply under all circumstances.

CONCLUSION

KV has missed the main intent of my article which was to make the newly elected leadership of India under Prime Minister Modi aware that the key provisions relating to Executive and Legislative powers for the States in India are nearly identical to the provisions for the Provinces in 13-A. Furthermore, my intention was to bring to India’s attention 10 facts pertaining to the present operational situation regarding 13-A. The reason for focusing on the Executive powers of the Governor and the Legislative powers of the Provincial council was because unlike devolved powers that have no meaning by themselves, it is the Governor and the Provincial Council who give substance and life to devolution.

KV should know that however good the laws are, it would be the people that make them work. Therefore, the provisions for the Governor and the State in India, and the Governor and Provincial Council in Sri Lanka are vital. Since these provisions in India and in Sri Lanka are nearly identical, the logical question that arises is: If these provisions for devolution work for India, why not in Sri Lanka?

The fact that India’s own bureaucracy participated in drafting 13-A must mean that they were fully aware of its scope and content, and conscious of its strengths and weaknesses including the fact that Provincial Council Act No. 42 that “provide for the procedures to be followed in Provincial Councils…” was not part of 13-A. However, the framers of

13-A made sure that Executive and Legislative powers to States in India were nearly identical to those in Sri Lanka because similarities were possible in respect of such powers. On the other hand, in view of historical, cultural and scale differences between India and Sri Lanka, similarities of devolved power were not possible; a stark example being devolution relating to Land. To expect all three – Executive, Legislative and Devolved powers to be identical in the 2 countries is to be naïve.

When the Indian political leadership calls for the full implementation of 13-A it has to mean its implementation in its current form and not in some new and improved form as envisioned by KV. Despite instances of disingenuousness of the scholarship, I have attempted herein to meet argument with argument on matters of relevance only, and have dismissed the rest.