Topic: Federal System

Question : Antonomy of the federal units is the care of any federal government in the World’. Elaborate?

Answer: On the basis of distribution of power, Governments can be classified into three types

• Unitary

• Federal and

• Con federal

Unitary system

In a unitary government, the central government possesses preponderant authority and decision-making power. Provincial governments are the administrative arms of the central government. They do not have any constitutionally conferred powers. The powers enjoyed by them are devolved’ to them by the unitary government at its will and these powers are subject to withdrawal- partly or wholly Infact, the provinces can he abolished altogether. Examples, Britain, France and China.

Federations

Federation is a system of constitutional governance brought about by the voluntary agreement among states that, join together into a new federal union in which power is divided between the Union Government at the centre (federal government) and states (provinces). A written Constitution divides powers. Thus, there is a dual government with their respective jurisdictions. In case of a conflict, there is an independent judiciary to resolve the differences. Examples, India, USA, Canada, Australia, Belgium and Switzerland.
Federal system is adopted so that states can flourish with autonomy and their security is assured by the central government.

Confederations

They are nations where the provinces have maximum autonomy so much so that they can become members of international organizations, have flag and may even secede.

Question : Indian federation is a unique case of ‘holding together’ federation. Discuss?

Answer:  When independent states ‘come together’ voluntarily to form a larger nation where they retain their cultural identity and Constitutional powers of legislation and administration while having their security ensured by a central government, it is called ‘coming together’ type of federation. For example, the USA in this case, constituent units tend to enjoy more powers than the federal government.
When a large country decides to establish provincial governments with which it is willing to share Constitutional powers in a written manner so that the Country can hold together’, it is called ‘holding together’ federation. For example, India in this case, states are not given co-equal powers on par with the federal government.
Motives of federating units
There is a range of expectations on the part of the federating units to come together.

The political motives are

• security from external and internal threat

• additional central assistance when required

• political stability while keeping a separate cultural and ethnic identity

In the economic sphere the federating state can expect

• access to a larger national market

• financial assistance from federal government

• transfer of resources from other states in case of underdeveloped states etc.

While the core of federalism is seen in the Indian polity, there are some unfederal features.

The Case of India

In India, holding together federation formed differently from the American experience of coming together. ‘Holding together’ federations as in India is a framework that is adopted for the sake of unity of the country and national integration. It is a response to a specific historic situation. Constituent Assembly prescribed federalist model so that the country can be held together’ in the face of the challenges in the form of centrifugal forces; rapid and balanced development; reorganization of states etc. Therefore, compared to ‘coming together’ federation like the UAS, Indian federation does not confer high level autonomy on the states.
States did not bargain and create a federation as in the USA. There were only three states at the time of Independence and the others were created according to the Constitutional provisions.

Question : Federalism is a prescription for multi-diverse and pluralist country like India. Do you agree? Support your argument with examples.

Ans. Federation is a system of constitutional governance brought about by the voluntary agreement among states that join together into a new federal union in which power is divided between the Union Government at the centre (federal government) and states (provinces) A written Constitution divides powers. Thus, there is a dual government with their respective jurisdictions. In case of a conflict, there is an independent judiciary to resolve be differences.

Federal system is adopted so that states can flourish with autonomy and their security is assured by the central government.
India is essentially a federation though in our case the provinces did not join together voluntarily. Federalism is a prescription for our multi-diverse country to pure pluralist polity.
While the core of federalism is seen in the Indian polity, there are some features that are unfederal, which are seen to be necessary for national security, integration and development, particularly in the light of the experience of partition. They are

• States can be created and abolished without their consent

• Residuary powers are with the Union parliament

• There is no dual citizenship- of province (state) and the country unlike in the USA

• There is a unified system of audit which is under Union control

• Unified and hierarchical judiciary

• Elections are held for assemble under the authority of the Election commission that is appointed by the Union Government

• The role of Governor is pro-Centre

• President’s rule is a threat to the existence of democratically elected state governments.

However, all the basic features of federalism are found in the Indian Constitution Since there are strong unitary features as well, it is called quasi-federation. It must be clarified that the fact that in Art. 1 of the Constitution India is described as a Union of States’ only stresses the unity among the provinces and not have any unitary implications for our polity. Dr. Ambedkar explained that the expression India is a Union of states’ in Art. 1 is chosen to mean that we are a union at the time of Independence and that it is not a result of the voluntary Coming together of the provinces.

No particular significance need be attached to word ‘Union’, since it is used in the Preamble to the Constitution of the United States of America, which is a federation. During the Constituent Assembly discussions, BR. Ambedkar mentioned the above examples and stated that ‘the description of India as a Union of States, though its Constitution is federal, does no violence to usage’.

There is no model federal State. One can only determine whether a constitution is basically federal or unitary. The Indian Constitution is basically federal, but with strong unitary features. Therefore it is described as ‘quasi-federal’ ‘unitary with subsidiary federal features’, ‘a federation with a strong centralizing tendency’, etc.

The Constitution framers opted for a mix of strong Central control with adequate provincial autonomy in their concern for the unity and integrity of the country in the face of partition of the country, a strong centre was preferred. Strong centre is found to the necessary to coordinate policy and action among the federal units. At the same time, there is enough scope for autonomy of States in the Indian Constitution.

Union-State relations in India

Legislative Sphere

The framework for division of legislative powers in the Indian Constitution is contained in Chapter 1 in Part XI. It comprises in articles- 245 to 255. It should be read with Seventh Schedule. Three fold distribution of the subjects of legislative: power is adopted- Union List (List I); State List (List II); and Concurrent List (List III).
Items of national importance are in the Union List- external affairs, defence; banking, communications, currency etc altogether numbering 99.
Matters of provincial importance are in the State List like agriculture, local self government, law and order; public health etc altogether numbering 61 items.
Subjects of common importance are in the Concurrent List, matters that can be legislated upon by both the union and state legislatures - socio economic planning, education, forests, protection of wild animals and birds; ports other than major ports; marriage and divorce; adoption; price control; criminal law; preventive detention, labour, together numbering 52 items.
Matters that do not figure in any of the three Lists are the residuary items and are given to the Union Parliament. Which item is residuary is determined by the Supreme Court (Art. 248, entry 97 in the Union List), including items related to residuary maters in taxation, For example, service tax till the 88th amendment act made it explicit.
Parliament has the exclusive jurisdiction over List I items. State legislatures have exclusive jurisdiction over List II items except under five circumstances when the Union parliament is empowered to legislate on them. Regarding the Concurrent List, the following are the relevant facts

• Union and State legislatures can legislate on these items

• rule of federal supremacy operates in this List- if there is a clash between the Union and State laws, the Union law prevails. However, in the following case, the State law is valid even if there is a clash: if the State law is reserved for the assent of the President by the Governor and such assent is already received. But at the same time, the Parliament can legislate to overrule the State law subsequently.

Thus the Union power is seen in case of conflict or inconsistency when the rule of repugnancy, as contained in article 254, comes into play.
Art. 245 says that parliament can legislate for the whole nation while the State
Legislatures can legislate for the whole or part of the State.

Question : Examine the rationale for the concurrent list in the constitution in light of the centre-state relations in India in recent years.

Answer : The Constitution, which is based on the principle of federalism, adopts a three-fold distribution of legislative powers. Different subjects for legislation find mention in one of the three lists namely the Union List (List I), State List (List II) and concurrent List (List III) in the Seventh Schedule to the Constitution. While, the Parliament and State. Legislatures have exclusive legislative power over entries in the Union List and the State List respectively, both the Parliament and the State, Legislatures have the power to legislate over entries in the Concurrent List. Concurrent List items fall in the common territory. Both have a common interest in them. On these items, depending on the circumstances, Centre or the States or both will make the relevant law. Uniformity of law throughout the country is necessary in national interest and so the Parliament legislates. Being restricted to its own territory, State Legislature can not assure such uniformity. On the other hand, problems vary from state to state and may require diverse remedies suited to the peculiarities of the state. For example, education in such situations, State laws are more relevant though the centre can give the broad policy framework. Therefore, there is a need for the Concurrent List to enable the best policy response under all circumstances.

There are three reasons for the Concurrent List

• To secure uniformity in the main principles of law

• to guide and encourage local efforts

• For flexibility in public policy

It can be explained with the help of education as a subject of legislation.
Education, which was originally in the State List, was subsequently transferred to the Concurrent List by means of a Constitutional amendment in 1976 It enables the Union Government to accept a larger responsibility to reinforce the national and integrative character of education to maintain quality and standards (including those of the teaching profession at all levels) etc.
NCRWC report (2002) expresses the need and significance of the Concurrent List in the following words: “The framers of the Constitution recognised that there was a category of subjects of common interest which could not be allocated exclusively either to the States or the Union. Nonetheless, a broad uniformity of approach in legislative policy was essential to combine specific requirements of different States with the articulation of a common national policy objective. Conceived thus, harmonious operation of the Concurrent List could well be considered to be creative federalism at its best.”
Government accepted Sarkaria Commission’s recommendation that laws in respect of subjects in the Concurrent List should be made, as a matter of constitution, only after active consultation with the State governments except it cases of extreme urgency. This is because laws enacted by the Union, particularly those relating to matters in the Concurrent List, are enforced through the machinery of the States and consultation is essential to secure uniformity.

Question : Under what circumstances Parliament can make laws as state list? Is it not an example of the excessive control of centre over the states and hence a violation of federal principle?

Answer. Under the following-five circumstances, Parliament can legislate on an item in the State List

• • when national emergency is in force. It needs to be emphasized that when there is national emergency (Art. 352), State Legislative Assembly continues to exist but the Constitution gives power to parliament as well to legislate on an item in the State List unlike when the

• • President’s rule is proclaimed when the State Legislative Assembly is either suspended (suspended animation) or dissolved and the Parliament can make laws for the State concerned

• • Art. 249 says that Rajya Sabha can empower the Parliament to legislate on an item in the State List in national interest by passing the relevant resolution by two thirds majority of the members present and voting. In other words, Rajya Sabba authorizes Parliament to legislate on a subject in the State List.

• • When two or more States request the parliament to do so. Other states may later resolve to me under such a law. (Art. 252)

• • In the implementation of international treaties and agreements, Parliament can legislate on a State List item. For example, WTO. Thus, there is no Constitutional validity to the States challenging the Central policies made under WTO agreements. (Art.253).

Art. 249

Following are the important aspects of Art.249

• Parliament can make such laws for the whole or any part of the territory of India with respect to that matter, while the resolution remains in force.

• A resolution passed by Rajya Sabha shall remain in force For upto one year. It can be extended by one year at a time

• A law made by Parliament on the basis of such resolution will cease to have effect on the expiration of a period of six months after the resolution has ceased to be in force, except as respects things done or omitted to be done before the expiration of the said period.

The need for empowering the Parliament in such a manner as shown above is because routing it through the Rajya Sabha makes it federal.

Residuary Power and Taxation

All residuary powers are with the Union Parliament. The Sarkaria Commission on Centre-State relations, which submitted its report in 1987, wanted the residuary powers in taxation to be retained with the centre and not transferred to the States, even though it endorsed the Supreme Court’s interpretation that these powers cannot be so expansively interpreted as to dilute the power of the State legislatures.
The Sarkaria Commission reasoned that the Constitution-makers did not include any entry relating to taxation in the Concurrent List so as to avoid Union-State frictions, double taxation and frustrating litigation. The Commission said that the power to tax might be used not only to raise resources but also to regulate economic activity and giving the power to states may prejudice national interest. Some states demand that the residuary powers, including those of taxation, be vested in the States. The States argue that they need taxation powers in order to mobilise resources to meet their developmental needs.

Centre’s Control Over State Laws

Centre’s control over State legislation is covered by the following

• Governor can reserve a Bill for President’s consent over which the President has absolute veto (Art. 200 and 201)

• President’s prior permission is required for the introduction of state Bill restricting freedom of trade and commerce

• During financial emergency (Art.360), President may direct the State government to send for his consideration Money Bills and related Bills.

During Emergency (Art. 352), Parliament can legislate on any State subject. The Concurrent List items arc subject to the doctrine of federal supremacy. That is, in case of repugnancy between the central and state laws, federal law prevails.

Administrative Relations

Art. 256-263 in Part XI contain administrative relations.
Art. 256 talks of the obligation of States and the Union in these words: The executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State, and the executive power of the Union shall extend to the, giving of such, directions to a State.
Art. 257 talks about control of the Union over States in certain cases:

• The executive power of every State shall be so exercised as not to impede or prejudice the exercise of the executive power of the Union and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose.

• The executive power of the Union shall also extend to the giving of directions to a State as to the construction and maintenance of means of communi-cation declared in the direction to be of national or military importance.

• The executive power of the Union shall also extend to the giving of directions to a State as to the measures to be taken for the protection of the railways within the State. The costs incurred by the States in the process are borne the Union Government.

Union can give directions in matters related to the following as well

• Designing and implementing schemes for the welfare of the tribals

• Primary education to the linguistic minorities in their mother tongue (Art.351a) and

• Promotion of Hindi (Art.351)

In normal times, these are the aspects of administration on which directions can be given. During national emergency, any matter of administration can be the subject of such directions.
If a state does not follow the directions given by the centre on the above matters, Art.365 gives power to the centre to dismiss the state by invoking Art. 56 (President’s rule).

Concurrent List and implementation

Union laws on Concurrent items are generally enforced through States. But there can be different ways of implementation:

• Forest (Conservation) Act 1980 is implemented by the Centre

• Essential Commodities Act is jointly implemented

• Electricity (Supply) Act 1959 is mostly delegated to the States.

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