ACCOUNTABILITY IN INTERGOVERNMENTAL RELATIONS IN INDIA

CONTEXT

          The question of political accountability in government refers to a complex concept. Its meaning is variable both historically and in terms of forms of government. Historically, the entire machinery of government was accountable to the crown in theory as well as largely in practice. With the advent of democracy, the meaning of political accountability gradually tended to change. The general direction of this change shifted from the crown to the Parliament and the people. This transition, transformation, can be historically seen in two concrete, contextual, cases say, in the United Kingdom and India, with a republican twist in the latter case. The British case is succinctly analysed and documented in Albert Venn Dicey's classic, Introduction to the study of the Law of the Constitution (1885).1 In Dicey's interpretation, British constitutionalism is a harmonious construction, consistent with democratization based on an amalgamation of three constituent elements: parliamentary sovereignty, rule of law, and conventions of the constitution regarding executive prerogatives and parliamentary privileges. The three elements together represent a hierarchy of values, making the will of the House of Commons, and ultimately the will of the people supreme. The first two are parts of the law of the constitution enforceable by courts of law, while the third is a part of constitutional morality and is beyond the courts in the United Kingdom (through not, I hasten to add, in Canada and India). The Indian case is illustrated by another classic, The Indian Constitution: Cornerstone of a Nation (1966)2, by Granville Austin. Austin talks about "Two revolutions, the national and the social" that ran parallel in India since the First World War. Austin shows the Indian case brought in new elements that are exhausted not only by republicanism. India also adopted the federal principle of government along with the parliamentary principle. I add that if Canada was the first country in the world to combine parliamentalism and federalism in 1867, India was first to do so in the Afro-Asian world in 1950. India also adopted a constitutional charter of rights like the first federation in modern times, the USA founded in 1787, though the United States combined federalism with presidentialism. Canada did not begin with its charter of rights and freedoms, but belatedly adopted it in 1982.

          Federalism added a new dimension to the problem of political accountability of governments at different levels. This paper is addressed to an aspect to federal political accountability with special reference to intergovernmental relations in India today, which is becoming increasingly more federalized and globalized since the early 1990s.

          It is notable that federalism and fundamental rights of citizens put some limitations on parliamentary supremacy in India that we do not find in the United Kingdom. The modern sovereign state that had emerged since the treaties of Westphalia (1648-59) was based on unified sovereignty and territoriality. The first federal state in 1787, and such states since then, came to be founded on divided as well as shared sovereignty and territoriality between the federal and regional governments. This feature entailed the necessity of rethinking on the question of accountability of democratic governments in the new context of federalism. In the Indian federation, for example, in addition to the national Parliament, we have 28 state legislatures. And, besides the general public opinion and national electorate, we have regional opinions and electorates as well. The concept of democratic and federal accountability must be operationalized and contextualized with a view to these variables and factors.

          Moreover, the theory of accountability must also take into account the advent of a truly diversified electronic mass media and India's increasing economic liberalization and global and regional integration since the early 1990s. In the new context, accountability is being stretched beyond the state and civil society in India to include national, international, and global institutions of growing power and salience; their relations with democratic  state and civil society in a federal context are often ambiguous or ill-defined. These need to be adequately reconcepetralized and theorized. This paper aims at sketching out some of these problems in the specific context of intergovernmental relations (IGR) in the emerging scenario of federal governance in India.

          Although political parties continue to be an essential link  between the state and civil society in a representative democracy, there has been a trend of decline of parties practically all over the world, including India. But the role of civil society institutions like nongovernmental organizations (NGOs) and market organizations in public works and service delivery has increased with the growing trend of outsourcing some of the work that the bureaucracy used to directly do before liberalization, privatization and globalization (LPG) gathered momentum in the early 1990s, The incidence of social and political movements at the seams of the “systems” and the “life worlds” (to borrow the terms from Jurgen Habermas) has also shown a rising trend. The citizens’ charters adopted by some government department, the Right to Information Act enacted by the Parliament of India (2005), the Right to Service Act passed by the Madhya Pradesh Government, etc., have created a greater demand as well as ambience for transparency and accountability in the recent decades.

NATURE OF IGR

          It is necessary to first sketch out the nature of the IGR in India before discussing the problem of accountability in this context. In the Commonwealth parliamentary federations like Canada, Australia, and India, the typical method and forums for conducting IGR among the federal and regional governments has been called "executive federalism".3 It is so called because the major forums bring together the executive of administrative heads of the two orders of governments for joint policy initiatives, harmonization, and coordination, or for implementation and review of these policies. The examples are the formal IGR forums like the National Development Council (NDC) set up in 1952 by a cabinet resolution of the Nehru Government for guidelines, approval and review of five-year plans; the Inter-State Council (ISC) provided for in article 263 in the constitution of India (1950) and first set up a Presidents order in 1990. These two forums are chaired by the Prime Minister and include some key union ministers, all the Chief Ministers of states, and the executive heads of the Union territories. Political, or non-economic issues at the apex are generally dealt with by the ISC. Other examples include the ministerial and secretarial conferences on intergovernmental affairs in various policy areas and are  chaired by the concerned Union minister or Union secretary. In addition, there are National Councils in some key policy areas set up under article 263 including ministerial and secretarial representations from the two orders of governments. These relate to limited issues, e.g. health, local selfgovernment, and sales tax.4

          Not all the foregoing IGR forums have been equally and uniformly operational in practice. In the past indeed many issues of intergovernmental implications were more likely to be settled on national party forums in the era of the dominance of the Indian National Congress, which ruled in all or most states. The most conspicuous of these national party forums were the Congress Working Committee (CWC) and Congress Parliamentary Board (CPB). Even after the advent of the multiparty system at the federal level since 1989 and a considerably differentiated pattern of state party systems since the 1980s, most frequently used IGR forums are ad hoc chief ministerial / ministerial/secretarial conferences than the formal ones like the ISC and NDC. Between the last two, NDC is more frequently convened. Than the ISC, even though the latter is constitutionally sanctified. It is worth pointing out in this context, however, that the presidential order setting up the ISC reduced its full constitutional mandate by omitting  clause (a) of article 263, which would have changed it with the duty of "(a) inquiring into and advising upon disputes which many have arisen between states," This was in conformity with the recommendation of the Sarkaria Commission Report on Center-state Relations (1988).5 This obviously diverts such disputes to other political or judicial forums like tribunals or courts of law.

          The conference of Governors or Chief Justices of High Courts, chaired by the President or Chief Justice of India respectively, also occasionally take place, But these forums deal with constitutional or legal issues rather than political matters in the IGR.

          Prominence of executive federalism and the eclipse of legislative federalism in the Commonwealth parliamentary federations, including India, may be explained by referring to the fact that these countries differ in constitutional design from presidential federations in the USA, Switzerland, and Latin America. Parliamentary federations in the Commonwealth political tradition with the possible exception of Australia, despite the pretense of bicameral equality in powers, barring money bills, end up making the popular or national chamber the real centre of political gravity in comparison to the federal second chamber giving regional representation to the states. This is the reason why the tendency of legislative federation via the second chamber does not grow beyond a limited range. The situation is different in presidential federations founded on an overdeveloped notion of separation of powers and checks and balances. In the directly elected Senate (two senators for each federating state, small or big) and armed with equal legislative powers and some special executive powers (in treaty-making and federal and judicial and diplomatic appointments) can become effective spokesmen for their states, along with of course the Governors6.

          In parliamentary federal Australia, even though the Senate is directly elected like the House of Representatives, and enjoys more of less equal powers with the latter, it cannot stray too far away from the government dominated national chamber for two main reasons. For one, the major Australian parties that often lead the governments with good numbers are fairly nationally integrated and are generally bicamerally represented. For another, the government of the day is constitutionally empowered to go for "double dissolution" or the House as well as the Senate7.

INTERGOVERNMENTAL ACCOUNTABILITY

          The principle of accountability of governments to the parliament and state legislatures is sketched out in the Indian constitution in the two respective domains, if not well-established in practice. Executive federalism is envisioned in the constitution in article 263, but the question of the collective accountability of the Inter-state Council (ISC) is left unstated. The PM and his/her government are accountable to the Lok Sabha. The CM and his/her government are accountable to the Vidhan Sabha. These two accountabilities are for the decisions of the Government of India and a state government for their own separate domains. What about the collective accountability of the ISC, NDC, and other such forums for their decisions in the joint Union-State domains? An integral and reading of the constitution could yield two answers. One, PM and CMs acting together in the ISC are firstly and severally accountable to their respective legislative branches. Two, their ultimate political accountability is to their respective national or regional electorates, indeed discursively to the larger national interest. However, as of now, the first constitutional principle has remained entirely unoperationalized.  Neither the Parliament nor any state legislature in the country has set up any committee on intergovernmental relations. The ISC is here used only as an illustration since it is the only apex general intergovernmental forum that at present is constitutionally entrenched. But my argument made here actually refers to the plethera or IGR forums mentioned above. It would appear to be a major missing link of accountability in our constitutional and political systems.

          There major constitutional commissions set up at the Union level on Center-state relations or on review of the working of the constitution are pertinent here. These are the Sarkaria Commission Report on the Center-state Relations (1988), the Venkatachaliah Commission Report on the Review of the Working of the Constitution (2002), and the Punchhi Commission Report on Center–State Relations (2010)8. None of these commissions has addressed the problem of the gap in the political accountability of the IGR forums. However, it must be noted that all three are unanimous in their recommendations in favour of the imperative of strengthening the ISC, both in view of the constitutional vision and mandate for it as also greater need for it.  This is in view of the growing regionalization of the Indian polity since the late 1960s or the late 1970s, and especially since the early 1990s. The tendency of regionalization that came to pass in the late 1960s and late 1970s turned out to be abortive, as political centralization overtook regionalization. But the process of regionalization that come gradually in the state party systems over the 1989 general election have proved to be a continuing and irreversible trend.

          The Sarkaria Commission Report is most conservative of the three in sense that, whereas it lamented the absence of the ISC despite a provision for it in the constitution (article 263), it suggested its establishment with a certain degree of timidity. It diluted its powers by omitting clause (a) of article 263 that would have enabled it to "inquire" into and "advising" upon inter-state disputes. It was left with the constitutional mandate in clauses (b) and (c) only, "investigating and discussing” subjects of "common interest" and "recommending" matters "for the better coordination of policy and action." the commission also recommended the retention of the NDC with the added status of its entrenchment under article 263 of the constitution9.

          The Venkatachaliah Commission recommended that "in resolving problems and coordinating policy and action, the Union as well as states should more effectively utilize the forum of Inter-State Council.” The commission underlined ''the desirability of prior consultation by the Union Government with the Inter-State Council '' prior to "signing any treaty vitally affection the interests the States regarding matters in the State List."10 This was obviously a response to the post-World Trade Organization (WTO) treaty (1995) signed by the Union allegedly without consulting the states, even though it impinged on agriculture a State List subject in the seventh schedule of the constitution.

          The Punchhi Commission Report would appear to be most innovative of the three commissions in its preparedness to go beyond the existing provisions of the constitution with regard to the ISC and the federal second chamber. In the first place, it emphasized the need "to make the Inter-State Council a credible, powerful, and fair mechanism for management of inter-State and Centre-State differences" by making "suitable amendments to article 263." The amendment should ensure "sufficient resources and authority to carry out its functions effectirely and to engage civil society besides governments and other public bodies."11

          Secondly, the Puchhi Commission dared to go beyond the conventional wisdom of the makers of the Commonwealth parliamentary federations in Canada and India regarding the federal second chamber. It suggested equal representation of states – small or big - in the Rajya Sabha to alter the balance of power in favour of smaller states in federal governance. It strongly expressed itself in favour of removal of "factors inhibiting the composition and functioning of the Second Chamber as a representative forum of States" by constitutional amendment. These amendments range from the restoration of the requirement of "domicile" in the state concerned for getting elected to the Rajya Sabha (abolished by amendments in the Representation of People Act, 1951, in 2003 and sustained by the Supreme Court in 2006) to the abolition of differential regional representation in this House in accordance with population (as in the Loke Sabha) in favour of equal representation to states as in the U.S. Senat. The Rajya Sabha thus restructured could be allowed to become a true forum of states interests though its committees that are empowered to work out ''alternative courses of action acceptable to the States and the Union" (e.g. compensating the mineral rich states or Hill states, suggesting appropriate remedies for states adversely affected by treaties or agreements with other countries )12.

          Coming back to the major missing link of political accountability of IGR within the framework of governments that I have been arguing for, none of the three commissions have given thought to it, let alone offered viable solutions. Even the seemingly radical solution of bringing in legislative federalism via a restructured Rajya Sabha may not bring about a radically different federal balance of forces in a parliamentary government in which the centre of political gravity lies in the Loke Sabha to which the government is collectively responsible. This would be particularly true in a single party government, though a multiparty coalitional government does make some difference.

          But difference at what cost? The phenomenon of divided and fragmented governments in India since the early 1990s is featured by an incoherent parliamentary and cabinet government, which is regionalized rather than federalized. This is evident in world's largest coalition governments in terms of participating parties and ministers, discordant bicameralism with the two chambers of the Parliament under diverse party coalitional configurational domination and  incredibly differentiated state party systems. This makes legislation and constitutional amendments Herculean tasks.

          The combination of parliamentary and federal government in the same constitution demands a certain degree of demarcation between the two domains, and the federalization of the parliamentary component in  a way that does not result in regional cacophony and incoherence. This kind of incoherence distorts some basic constitutional precepts like the Prime Minister's preeminence, cabinet collegiality and cohesion and collective responsibility of the council of ministers to the Parliament, especially the Lok Sabha, in the phase of coalitional governance in New Delhi. These precepts have been a casualty. Besides, it has also bred enormous corruption and crimenalization of politics that stare us in face.

          This unsustainable unconstitutional governance is at times remedied by larger than life rotes of the Supreme Court/High Courts, the media, the social and political movements, the Comptroller and Auditor General of India, the Election Commission of India, and the like. In a somewhat feebler way, the new regime of independent regulatory authorities that have been set up in dozens under parliamentary enactments since 1991, the Central Vigilance Commission, enforcement directorate, National Advisary Council, etc. Moreover, investigative agencies also come into the picture, but these agencies, with the possible exception of the newly set up National Investigative Agency in 2008, generally lack the requisite autonomy and teeth.

          Needless to add that these interventions may be necessary in governance, but are certainly not sufficient. Ultimately, the governmental and party political processes must be revived or reinvented and reformed to play their part in the enterprise of governance. In the federal context, the crucial role of forums of IGR in coordinating centre-state relations and settling the disputes that arise can hardly be exaggerated. A more functional and effective ISC and NDC are absolutely necessary to prevent  the cabinet itself from becoming the arena of regional conflicts and to reduce the necessity of the judiciary going beyond normal judicial review to an overdrive of judicial activism.

          In step with the times, both the Parliament and the intergovernmental forums in their respective domains must ensure opportunity of deliberative as well as participatory democracy. This can be done by creating or expanding the scope and practice of interaction with the civil society and market organizations, the media, and of hearing the public - in short, all the stakeholders in the processes of parliamentary and federal governance. We look forward to the prospects of fuller actualization of the constitutional ideals of parliamentary, federal, and democratic accountability.

END NOTES

1. Dicey, A.V. (1982). Introduction to the Study of the Law of Constitution, Indianapolis: Liberty Fund. First published 1885, and the present edition is a reprint of the 1915 edition with a new Introduction by Roger E. Michner.
2. Austin, Granville (1966/1972). The Indian Constitution: Cornerstone of a Nation, New Delhi: Oxford University Press. Classic Reissue, Chapters 2 and 13.
3. Watts, Ronald L. (2008, 3rd edition). Comparing Federal Systems, Montreal: McGill-Queen's University Press. First published 1997.
4. Saxena, Rekha (2006). Situating Federalism: Mechanisms of Intergovernmental Relations in Canada and India, Foreword by Prof M. P. Singh, New Delhi: Manohar, Chapter 4.
5. India, Republic (1988). Commission on Centre-State Relations, Report Part I, Chair Justice R. S. Sarkaria, Nasik: Government of India Press, Para 9.3.05, p. 238.
6. Dian, John (2006). "United States of America" in Katy Le Roy and Cheryl Saunders, eds., Legislative Executive, and Judicial Governance in Federal Countries, Montreal: McGill-Queen's University Press for Forum of Federation, Ottawa, pp. 316-343.
7. Saunders, Cheryl and Katy Le Roy (2006). "Commonwealth of Australia" in Saunders and Le Roy, eds. op. cit., pp. 37-70.
8. India, Republic (1988). Commission on Centre-State Relations, op. cit. at note 5; India, Republic (2002). Report of the National Commission to Review the Working of the Constitution, Vol. I, Chair Justice M.N. Venkatachaliah http://lawimn.nic.in/ncrwc/ncrwcreport.htm;  India, Republic (2010). Commission on Centre-State Relations Report, Volume-II, Constitutional Governance and the Management of Centre-State Relation, Chair M.M. Punchhi, New Delhi: Government of India.
9. India, Republic, Report of the National Commission to Review the Working of the Constitution (2002). op. cit.,  note 8, para 9.2.02,  p. 238 and para 9.4.07, p.239.
10. India, Republic (2010). Commission on Centre-State Relations, Vol. II, op. cit. at note 8, para 8.13.3,  p. 18, chapter 8.
11. Ibid.para 11.13.04, p. 229.
12. Ibid.chapter 7.