Devolution in India and Sri Lanka



By Neville Ladduwahetty


(We republish this article which first appeared in ‘The Island’ on Wednesday (25), because an error had crept into it at the page-making stage. We regret the error.)


The Island editorial of March 16, 2015 quotes Northern Province Chief Minister C. V. Wigneswaran as having stated as follows during Prime Minister Modi’s visit to Jaffna: "Thirteenth Amendment can never be the final solution. No wonder you referred to your firm belief in cooperative federalism yesterday in Parliament... Indian Constitution provides for the facilitation of sustainable development, internal security, law and order, policing and protection pertaining to lands and so on within the State. Our inability to function in our Province to the extent you are able to help Gujrat under the Indian Constitution needs to be understood... We need the services of a guarantor and it is our considered view that the Government of India under your stewardship is best suited for this role".


The Chief Minister’s statement that provisions in the Indian Constitution permit opportunities for growth and development to an extent that is not permitted in Sri Lanka under the 13th Amendment reflects a deeply flawed understanding of the facts. Similar misperceptions are reflected in Prime Minister Modi’s call for the need to go "beyond" the 13th Amendment. To establish whether the views expressed by the Chief Minister and the Indian PM have any substance it is necessary to compare the extents to which powers have been devolved in India and Sri Lanka.


‘Extent of devolution’ ultimately translates into "Powers of Government" at a provincial level. The three distinct Powers of Government identified by Political philosophers at the provincial or any level are Legislative, Executive and Judicial. Furthermore, these philosophers have advocated that the interests of the citizen are best served by keeping them separate. This is reflected in Article 4 of Sri Lanka’s 1978 Constitution. The three organs responsible for exercising the three powers of Government at provincial level are the Provincial council, the Governor and Provincial Judiciary.


DEVOLVED POWERS in INDIA


and SRI LANKA


Given below are the powers devolved to the States in India and to the Provinces in Sri Lanka in respect of the Legislative, Executive and Judicial. It would be evident from the material presented below that despite the fact that the Northern Province in Sri Lanka is very small in every respect of land, (Gujrat being nearly 3 times the size of the whole of Sri Lanka), population and resources to Gujrat, the extent of powers devolved in both cases are nearly identical.


LEGISLATIVE POWERS of STATES in INDIA


Indian Constitution:


Article 161: 1. "There shall be a council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion".


2. "If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution requires to act in his discretion, the decision of the Governor in his discretion shall be final and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion".


LEGISLATIVE POWERS of PROVINCES in SRI LANKA


13th Amendment:


Article 154F: (1) "There shall be a Board of Ministers with the Chief Minister at the head and not more than four other Ministers to aid and advice the Governor of a Province in the exercise of his functions. The Governor shall, in the exercise of his functions, act in accordance with such advice, except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion".


(2) "If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question in any Court on the ground that he ought or ought not have acted on his discretion. The exercise of the Governor’s discretion shall be on the President’s discretion".


EXECUTIVE POWERS of STATES in INDIA


Indian Constitution:


Article 153: "The Executive power of state shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution".


Article 155: "The Governor of a State shall be appointed by the President by warrant under his hand and seal".


EXECUTIVE POWERS of PROVINCES in SRI LANKA


13th Amendment:


Article 154c: "Executive power extending to the matter with respect to which a Provincial Council has power to make statutes shall be exercised by the Governor of the Province for which that Provincial Council is established, either directly or through Ministers of the Board of Ministers’ or through officers subordinate to him, in accordance with Article 154F".


Article 154B: (1) "There shall be a Governor for each Province for which a Provincial Council has been established in accordance with Article 154A’.


(2) "The Governor shall be appointed by the President by warrant under his hand, and shall hold office, in accordance with Article 4 (b) during the pleasure of the President".


JUDICIAL POWERS of STATES in INDIA


Indian Constitution:


Article 214: "There shall be a High Court for each State".


Article 215: "Every High Court shall be court of record and shall have all the powers of such a court including the power to punish for contempt of itself’.


Article 216: "Every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint".


Article 217: "Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court....".


JUDICIAL POWERS of PROVINCES in SRI LANKA


13th Amendment:


Article 154P:


(1) "There shall be a High Court Judge for each Province... Each such High Court shall be designated as the High Court of the relevant Province".


(2) "The Chief Justice shall nominate, from among Judges of the High Court of Sri Lanka such number of Judges as may be necessary to each such High Court...".


GROUNDLESS CLAIMS of


HELPLESSNESS


It is evident from the foregoing that in respect of Legislative, Executive and Judicial powers the provisions granted to States in India are identical for all intents and purposes in scope, content, and in fact the very language to those granted to Provinces in Sri Lanka. Under the circumstances, the potential exists for the 36 devolved subjects in the Provincial List (List 1) and the additional 36 subjects in the Concurrent List (List III) to be developed to the maximum extent possible under the Sri Lankan Constitution.


As far as development activities are concerned the reason for Chief Minister Wigneswaran’s inability to accomplish what has been achieved in Gujrat by Mr. Modi is because Mr. Modi does not waste his time in delusional distractions such as the Chief Minister has done in accusing successive Sri Lankan Governments of Genocide that divert attention from burning issues following 30 years of a conflict initiated in the pursuit of another delusional notion of a separate state. If instead, the Chief Minister acquaints himself of the powers granted to Provincial Councils under the Constitution he would realize that he is constitutionally as well off in respect of devolved powers as Mr. Modi was when he was Chief Minister of Gujrat. If he and his Council fail to deliver, it would be only due to their collective inabilities and not due to constitutional shortcomings.


For instance, the Chief Minister could exploit the provisions in Article 21 of the Provincial Council List that state: "Subject to the formulation and implementation of National Policy in regard to development and planning, the power to promote, establish and engage in agriculture, industrial, commercial and trading enterprises and other income-generating projects, within the Province without prejudice to the power of the Government and public corporations to have such enterprises and projects".


This provision could be exploited to develop an ICT Industry that has links with the ICT industry in Gujrat that today is considered to be the second best in the world. To do so the Chief Minister should persuade his kith and kin abroad to invest in the ICT sector and make it as vibrant a sector as it is in Gujrat so that the unemployed youth could find meaningful employment without becoming alcoholics due to lack of opportunities for gainful livelihoods. Instead of addressing such burning issues the Chief Minister’s distraction with issues such as Genocide that have no bearing on the livelihood of the Tamil community that elected him, reflects a deeply flawed sense of responsibility on his part and a betrayal of the trust placed by the electorate that made him the Chief Minister.


Another area that the Chief Minister could be meaningfully engaged is to use his legal background to study the Indian Constitution; a task that would bring much needed relief to the fishing industry. If he does so he would realize that according to Article 57 "Fishing and fisheries beyond territorial waters" is in List 1 - Union List. When India fishermen enter Sri Lankan waters they operate beyond India’s territorial waters. Therefore, it should be a subject that should come under the jurisdiction of the Union Government of India and NOT a subject that involves the State of Tamil Nadu. Therefore, Sri Lanka should not be engaging in discussions with the State Government of Tamil Nadu and the Tamil Nadu Trade Unions associated with fishing. Instead, Sri Lanka should engage with the Union Government in Delhi, meaning dealing directly with PM Modi and if necessary even bring the issue to the attention of the International Court of Justice if the Union Government fails to resolve a matter that is essentially internal to India.


CONCLUSION


The material presented above demonstrates that constitutional provisions in respect of devolved powers to States in India are almost identical to the Provinces in Sri Lanka. Therefore, if it was possible for Gujrat to make significant progress through devolved powers it should be possible for the Northern Provincial Council to achieve similar results under the 13thAmendment provided they have the needed competencies. Recognizing this fact by Prime Minister Modi and by Chief Minister C. V. Wigneswaran means there is no need to go "beyond" what is already in place.


Under the circumstances, the failure to realize what is possible under the powers devolved could only be due to the inability of the Chief Minister and his Council to deliver. Attempts to cover up deficiencies in performance by frivolous distractions such as charges of Genocide that have no bearing in restoring the lives of a community that sacrificed a whole generation in pursuit of a misbegotten dream of a separate State at the insistence of a misguided leadership that even today continues to mislead the community is to shift focus from real issues. Such subterfuges are not sustainable. It would not be too long before the real reasons for the inability to perform to the extent Gujarat did are found out.


 
 
 
 
 
 
 
 
 
 
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