The document provides a detailed comparison of the powers devolved to provinces in Sri Lanka under the 13th Amendment versus those devolved to states in India under its constitution. It finds that while some areas and wording are similar, the scope and extent of powers have been undermined in Sri Lanka by excluding key subjects like provincial finance and reassigning them to other acts. Additionally, in many areas like land, health, and public services, the center in Sri Lanka has retained control through various means despite the subjects being nominally devolved.
The document provides a detailed comparison of the powers devolved to provinces in Sri Lanka under the 13th Amendment versus those devolved to states in India under its constitution. It finds that while some areas and wording are similar, the scope and extent of powers have been undermined in Sri Lanka by excluding key subjects like provincial finance and reassigning them to other acts. Additionally, in many areas like land, health, and public services, the center in Sri Lanka has retained control through various means despite the subjects being nominally devolved.
The document provides a detailed comparison of the powers devolved to provinces in Sri Lanka under the 13th Amendment versus those devolved to states in India under its constitution. It finds that while some areas and wording are similar, the scope and extent of powers have been undermined in Sri Lanka by excluding key subjects like provincial finance and reassigning them to other acts. Additionally, in many areas like land, health, and public services, the center in Sri Lanka has retained control through various means despite the subjects being nominally devolved.
President J.RJayewardene and Indian Prime Minister Rajiv Gandhi signing the Indo-Lankla agreement by Dr. K. igneswaran-July 27, 2014 !he Island o" Monday# $ J%ne &'() *%blished a +ommentary by Mr. ,eville Ladd%wahetty on India-s .all to the /ri Lankan Government "or 01%ll Im*lementation- o" the (2th 3mendment. !his arti.le is in res*onse to that +ommentary. Mr. Ladd%wahetty 4,L5 hereina"ter6 asserts that India was intimately involved in the a.t%al dra"ting o" the (2th 3mendment. 5ad it been the .ase there wo%ld have been similarity in the Lists o" devol%tion and there wo%ld have been no Provin.ial +o%n.ils 3.t. 5is assertion that 7the s.o*e# e8tent and even the wording in the (2th 3mendment is near identi.al to that in the Indian +onstit%tion-s 3rti.le (92 onwards7 is s%bje.t to .orre.tion. 3ltho%gh the wording in .ertain se.tions o" the (2th 3mendment is near identi.al to that in the Indian +onstit%tion# its s.o*e and e8tent have been deliberately %ndermined by e8.l%ding s%bje.ts s%.h as *rovin.ial "inan.e and the *rovin.ial *%bli. servi.e# and relegating them to a se*arate Provin.ial +o%n.ils 3.t. ,L5 .om*ares the o""i.es o" the Presidents o" India and /ri Lanka and o" the Governors in both .o%ntries. 5e says# :%oting 3rti.le 92 o" the Indian +onstit%tion# that all e8e.%tive *owers in India are vested in the President who is the 5ead o" /tate and in the Governors o" the /tates# and in /ri Lanka all e8e.%tive *owers are vested in the ;8e.%tive President and the Governors o" the Provin.es. !his is an oversim*li"i.ation o" vo.ab%lary. 3rti.le 92 sho%ld be read along with 3rti.le <) o" the Indian +onstit%tion =nly then does the Prime Minister be.ome the 5ead o" the Government o" India. In /ri Lanka# an ;8e.%tive President is both 5ead o" /tate and 5ead o" Government. President Raja*aksa met the Indian Prime Minister as the 5ead o" the Government o" /ri Lanka. R;+3PI!>L3!I=, =1 R;+;,! 5I/!=R? 1ollowing the massa.re o" tho%sands o" !amils in a well *lanned *ogrom in ($@2# and the dis*ersal o" tho%sands o" !amils to .o%ntries aro%nd the Globe# the ethni. *roblem that remained hitherto an internal matter "or /ri Lanka be.ame internationaliAed. Bhen !amil re"%gees started *o%ring into India# the Government o" Indira Gandhi sent emissaries to work o%t a reasonable *oliti.al sol%tion to o%r *roblem. 3"ter the assassination o" Indira Gandhi# Prime Minister Rajiv Gandhi s%..eeded in getting President Jayewardene sign the Indo /ri Lanka 3greement o" J%ly ($@<. 1or some in.om*rehensible reason# President Jayewardene ena.ted the Provin.ial +o%n.ils 3.t# des.ribed as the enabling 3.t "or the (2th 3mendment. 5ad this 3.t not been ena.ted# b%t the .ontents o" it in.or*orated in the (2th 3mendment# most o" the .onstit%tional *roblems that we "a.e today wo%ld not have arisen. J>DI+I3L 3,D L;GI/L3!I; P=B;R/ J%di.ial PowersC In /ri Lanka# j%di.ial *owers have not been devolved to the Provin.es. In India# the /tates have *owers with regard to s%bordinate .o%rts. Legislative PowersC >nder the (2th 3mendment# the *ro.ed%res "or ena.ting stat%tes on s%bje.ts in the Provin.ial and +on.%rrent Lists are similar to the *ro.ed%res in India. D%t the stat%tes on s%bje.ts in both the Lists have a more im*ortant re:%irement sti*%lated by se.tion &) o" the Provin.ial +o%n.ils 3.t. !he re.ommendation o" the Governor has to be obtained *rior to *la.ing the stat%tes be"ore the Provin.ial +o%n.ils. !he ;astern Provin.ial +o%n.il have had more than ten stat%tes# aborted by the Governor %sing the *rovisions o" se.tion &). !he only .on.l%sion to be drawn is that the Government was not at all ha**y to see the *assing o" stat%tes by the ;astern Provin.ial +o%n.il. LI/!/ =1 D;=L>!I=, I, I,DI3 3,D /RI L3,K3 !here are 2< items in the Provin.ial List o" /ri Lanka whereas there are E( items in the /tates List o" India. !he +on.%rrent List o" /ri Lanka has 2E items whereas the +on.%rrent List o" India has 9( items. Bhere is the similarityF Lo.al Government In India# a /tate has .om*lete *owers over lo.al government whereas in /ri Lanka# the Provin.es have no *owers in res*e.t o" the .onstit%tion o" lo.al a%thorities. 3grarian /ervi.es !he /%*reme +o%rt o" /ri Lanka had given a determination that the s%bje.t o" agrarian servi.es was a devolved s%bje.t. ?et# agrarian servi.es is retained by the +entre# by ena.ting the 3grarian Develo*ment 3.t o" &'''. R%ral Develo*ment R%ral roads# r%ral water s%**ly and r%ral sanitation are "inan.ed and im*lemented by the Ministry o" ;.onomi. Develo*ment o" the +entre des*ite r%ral develo*ment being a devolved s%bje.t. 5ealth =nly tea.hing hos*itals and hos*itals established "or s*e.ial *%r*oses 4e.g. .an.er hos*ital# .hest hos*ital et.6 sho%ld .ome %nder the *%rview o" the +entre. D%t the *ra.ti.e over the *ast &' years has been "or the +entre to take over by e8e.%tive a.tion other hos*itals as national hos*itals. Land In India# the s%bje.t o" land is .om*letely devolved to the /tates. In /ri Lanka# state land is vested in the Re*%bli. and the dis*osition or alienation o" state land is .overed in 3**endi8 II o" /.hed%le ,ine and s%bje.t to these sti*%lations# land is a s%bje.t devolved to the Provin.es. 3**endi8 II .learly states that the +entre .annot %tiliAe any state land in a Provin.e witho%t .ons%lting the Provin.ial +o%n.il. It is .ommon knowledge that this .ondition has been observed in the brea.h by the +entre# *arti.%larly# by the Ministry o" De"en.e. !he (2th 3mendment also re:%ires the a**ointment o" a ,ational Land >se +ommission and a !e.hni.al /e.retariat. It is the *rerogative o" the ,ational Land >se +ommission to iss%e the ,ational Land >se Poli.y. Bhat *revents the +entre "rom a**ointing the +ommission and its !e.hni.al /e.retariatF Lastly# vario%s instit%tions o" the Government o" /ri Lanka make %se o" 3.ts o" Parliament# to %ndermine the *owers .on"erred on the Provin.ial +o%n.ils on land. !he Mahaweli 3%thority 3.t is one o" them. >nder the *rovisions o" that 3.t# two D/ divisions o" the ;astern Provin.e have been de.lared Mahaweli areas. D%t the Mahaweli Ganga does not "low even thro%gh one o" these divisionsG Mines and Minerals !he Indian /tates .an make their laws# b%t .onsistent with laws made by Parliament# and are em*owered to reg%late almost all mines and minerals within the /tate. In /ri Lanka# a Provin.ial +o%n.il .annot make a stat%te to reg%late mines and mineral develo*ment within the Provin.e# b%t is em*owered only to im*lement laws made by Parliament. 3 /ri Lankan Provin.e .annot even .ontrol :%arrying o" sand or metal or even .lay %sed "or bri.ks or *ottery. ;le.tri.ity In India# ;le.tri.ity is a .on.%rrent s%bje.t. 3 /tate generates ele.tri.ity# transmits and s%**lies it to the .ons%mers. =nly ele.tri.ity *rod%.ed by n%.lear *ower *lants is .ontrolled by the +entre. In /ri Lanka# ele.tri.ity a**ears as items in both the Provin.ial and +on.%rrent Lists. 3 genero%s inter*retation o" both these *rovisions wo%ld mean that the /ri Lanka ;le.tri.ity Doard sho%ld .ontrol all hydro-*ower stations# generate ele.tri.ity to energise the national grid and leave it to the Provin.es to s%**ly ele.tri.ity to the .ons%mers. D%t what ha**ens in *ra.ti.eF Reven%e !he Provin.es were em*owered to .olle.t t%rnover ta8es on wholesale and retail sales within s%.h limits and s%bje.t to s%.h e8em*tions as may be *res.ribed by Parliament. !%rnover ta8es were being .olle.ted by all the Provin.es e8.e*t the ,orth till &'((. =" a s%dden# thro%gh the ,ational D%dget "or &'(& *assed by Parliament# a bar was *la.ed on the .olle.tion o" these ta8es. >rban Develo*ment In the (2th 3mendment# %rban develo*ment is a .on.%rrent s%bje.t. !he +entre has made amendments to the >rban Develo*ment 3%thority Law and taken over restho%ses managed by lo.al a%thorities and even bro%ght 7rainwater harvesting7 %nder the +entre . Bater /%**ly and Drainage 7Bater s%**ly and drainage7 does not a**ear in any o" the Lists o" the (2th 3mendment. 5en.e by de"a%lt# the s%bje.t o" water s%**ly and drainage is deemed to be a s%bje.t reserved "or the +entreG 3 Provin.ial +o%n.il does not have *ower over drinking water to its own *o*%la.e. 1isheries >nder the Indian +onstit%tion# 71isheries7 is a /tate s%bje.t while 71ishing and "isheries beyond territorial waters7 is a >nion s%bje.t. In /ri Lanka# 71isheries other than "ishing beyond territorial waters7 is a .on.%rrent s%bje.t. In *ra.ti.e however# a Provin.e .an e8er.ise *owers over "resh water "ishing in irrigation tanksG 1orests and Prote.tion o" wild animals and birds In India# 7"orests7 and 7wild animals and birds7 are two .on.%rrent s%bje.ts. Doth the +entre and the /tates .an e8er.ise *owers on both s%bje.ts In /ri Lanka# 7/o.ial "orestry and *rote.tion o" wild animals and birds7 is a single .on.%rrent s%bje.t. D%t#71orests7 is not a devolved s%bje.t. 5ow then .o%ld a Provin.e e8er.ise a%thority over wild animals and birdsF P%bli. /ervi.e In India# 7/tate P%bli. /ervi.eH /tate P%bli. /ervi.e +ommission7are s%bje.ts "or the /tates. !here is no similar entry in the Provin.ial List o" /ri Lanka. !he s%bje.ts are relegated to the Provin.ial +o%n.ils 3.t. >nder that 3.t# the Governor e8er.ises absol%te *ower over the *%bli. servi.e in his own dis.retion e8.e*t the a**ointment o" the +hie" /e.retary. !he a**ointment# trans"er# dismissal and dis.i*linary .ontrol o" all other o""i.ers o" a *rovin.ial *%bli. servi.e are vested in the Governor o" the Provin.e. !he Governor a**oints the members o" the Provin.ial P%bli. /ervi.e +ommission in his dis.retion. !his Provin.ial P%bli. /ervi.e +ommission is not inde*endent# b%t is s%bordinate to the Governor. !he absol%te *ower that the Governor o" a Provin.e wields in res*e.t o" the *rovin.ial *%bli. servi.e is a major h%rdle in the devol%tion o" *owers to Provin.es. Lastly# the Distri.t 3dministration whi.h .onsists o" the Government 3gent# the Divisional /e.retaries and the Grama ,iladharis is .ontrolled by the +entre. +an anyone imagine a /tate in India# with the +olle.tor# the /%b- +olle.tors and the !ahsildars o" a Distri.t being .ontrolled by ,ew DelhiF 1inan.e Provisions relating to /tate 1inan.e are *arts o" the Indian +onstit%tion. !his in.l%des ann%al "inan.ial statement# estimates# a**ro*riation bills# s%**lementary# additional or e8.ess grants# votes on a..o%nt# s*e.ial *ro.ed%re "or "inan.ial bills et.. In /ri Lanka# *rovin.ial "inan.e is a matter %nder the *%rview o" the Governor. Poli.e Powers In India# ea.h /tate has its own inde*endent Poli.e 1or.e. Initially# in ($@$# President Premadasa was ready to hand over *oli.e *owers to the ,orth-;ast Provin.e. It was the L!!; whi.h *revented him saying that the *rovin.ial *oli.e wo%ld be "illed with ;PRL1 .adresG >nder the (2th 3mendment# the *oli.e *owers devolved are limited. !he DIG o" the Provin.e is a**ointed by the IGP with the .on.%rren.e o" the +hie" Minister and is s%bje.t to the .ontrol o" the IGP d%ring *eriods o" emergen.y. 5ow .an s%.h an arrangement adversely a""e.t national or internal se.%rityF +=,+L>/I=, ,L5 says that the !amils o" !amil ,ad% are not agitating "or more *owers# be.a%se they are .ontent with the *owers devolved to the /tates in India. 5e then .ontin%es to assert that the devol%tion o" *owers %nder the (2th 3mendment is near e:%al in s.o*e and e8tent to the devol%tion o" *owers to the /tates o" India. I" that be so# wo%ld ,L5 %nreservedly agree to re*la.e the three Lists in the ,inth /.hed%le in the (2th 3mendment with the three Lists in the /eventh /.hed%le o" the Indian +onstit%tion and to in.or*orate the .ontents o" the Provin.ial +o%n.ils 3.t in the +onstit%tion o" /ri Lanka and to re*eal that 3.tF !he o"t re*eated *hrase 71%ll im*lementation o" the (2th 3mendment7 has been very im*ortant to the Indian Government ever sin.e that 3mendment .ame into "or.e. India has always "elt that i" the (2th 3mendment is im*lemented in "%ll the !amils o" /ri Lanka will begin to have "aith in a %nited /ri Lanka. =nly then .an the !amil *o*%la.e be veered away "rom the *ath shown by the L!!; and its .ohorts among the !amil Dias*ora. /%.h a rationale holds good even today. 41or "%rther details on the s%bje.t# the writer may be .onta.ted thro%gh k.vigneswaran)(Igmail..om6 Posted by Thavam