Editorials/Opinions Analyses For UPSC 7 September 2021

Contents

1. Spirit of federalism lies in consultation

Spirit of federalism lies in consultation

Context:

• Of late, various State governments have raised concerns about the Centre unilaterally enacting critical laws on subjects in the Concurrent List of the Seventh Schedule of the Constitution.
• The Kerala Legislative Assembly unanimously passed a resolution against the Electricity (Amendment) Bill, 2020. The Tamil Nadu Legislative Assembly passed a resolution against the controversial farm laws.

Relevance:

GS-II: Social Justice (Government Interventions and Policies, Issues arising out of the design and implementation of Government Policies)

Mains Questions:

“The States are not mere appendages of the Union”. Discuss in the context of states raising concerns about Central unilateralism in the enactment of critical laws on subjects in the Concurrent List. (10 marks)

Dimensions of the Article:

1. Understanding Unitary System and Federal System
2. India’s system of Federalism with Unitary Bias
3. What is cooperative federalism?
4. Federalism Concerns: Protests by the states
5. Conclusion

Back to the Basics: Understanding Unitary System and Federal System

• Nations are described as ‘federal’ or ‘unitary’, depending on the way in which governance is organised.
• In a unitary set-up, the Centre has plenary powers of administration and legislation, with its constituent units having little autonomy.
• In a federal arrangement, the constituent units are identified on the basis of region or ethnicity, and conferred varying forms of autonomy or some level of administrative and legislative powers.
• In Federal governments such as India, powers are vividly divided between central and regional governments as enshrined in Article 246 & Schedule 7 of the Indian Constitution.

Federalism (Example: U.S.A.)

• Federalism is a system of government in which powers have been divided between the center and its constituent parts such as states or provinces.
• In a federation system, there are two seats of power that are autonomous in their own spheres.
• A federal system is different from a unitary system in that sovereignty is constitutionally split between two territorial levels so that each level can act independently of each other in some areas.
• State Government has powers of its own for which it is not answerable to the central government.

Unitary System (Example: Britain)

• In a Unitary Form of Government there is only one level of government or the sub-units are subordinate to the Central Government.
• The Central Government is supreme, and the administrative divisions exercise only powers that the central government has delegated to them.
• The powers of the sub-ordinate governments like ‘State Government’ may be broadened and narrowed by the central government.

India’s system of Federalism with Unitary Bias

• India is a federal system with a tilt towards unitary form of government.
• It is sometimes considered a quasi-federal system as it has features of both a federal and a unitary system.
• Article 1 of the Indian Constitution states, ‘India, that is Bharat, shall be a union of States’.
• The word federation is not mentioned in the constitution.
• The Drafting Committee chose the word “Union” instead of “Federation” due to various reasons:
• The Union of India is not the outcome of an agreement among the old provinces (like in the American Federation).
• It is not up to the States to secede from the union or alter their boundaries on their own free will.
• The Indian Federation is a Union because it is indestructible. Ambedkar justified the usage of ‘Union of States’ saying that the Drafting Committee wanted to make it clear that though India was to be a federation, it was not the result of an agreement and that therefore, no State has the right to secede from it. “The federation is a Union because it is indestructible,” Ambedkar said.
• Though the country and the people can be divided into different States for convenience of administration, the country is one integral whole, its people living under a single imperium derived from a single source.

What is cooperative federalism?

• In Cooperative federalism the Centre and states share a horizontal relationship, where they “cooperate” in the larger public interest.
• It is an important tool to enable states’ participation in the formulation and implementation of national policies.
• Union and the states are constitutionally obliged to cooperate with each other on the matters specified in Schedule VII of the constitution.

Federalism Concerns: Protests by the states

On farm laws:

• The farm laws were passed by Parliament even as it does not have legislative competence to deal with agriculture. The lack of consultation in a matter that intrinsically deals with millions of farmers led to massive protests.
• The laws, essentially related to Entry 14 (agriculture clause) belonging to the State List, were purportedly passed by Parliament citing Entry 33 (trade and commerce clause) in the Concurrent List.
• According to various decisions of the Supreme Court, beginning from the State of Bombay vs F.N. Balsara case, if an enactment falls within one of the matters assigned to the State List and reconciliation is not possible with any entry in the Concurrent or Union List after employing the doctrine of “pith and substance”, the legislative domain of the State Legislature must prevail.

On ports authorities act

• When the Major Ports Authorities Act, 2021, was passed by Parliament, State governments objected to the law, stating that it would lead to the redundancy of the local laws. According to the Indian Ports Act, 1908, which currently governs the field related to non-major ports, the power to regulate and control the minor ports remained with the State governments.
• However, the draft Indian Ports Bill, 2021, proposes to change the status quo by transferring the powers related to planning, developing and regulating the non-major ports to the Maritime State Development Council (MSDC), which is overwhelmingly controlled by the Union government.
• Non-major ports field is traceable to Entry 31 of the Concurrent List.

On electricity bill

• Various States like West Bengal, Tamil Nadu and Kerala have also come forward against the Electricity (Amendment) Bill, 2020.
• The power to regulate the sector was vested with the State Electricity Regulatory Commissions (SERCs), which were manned by individuals appointed by the State government.
• However, the proposed amendment seeks to change the regulatory regime with the establishment of a National Selection Committee, dominated by members nominated by the Union government that will make appointments to the SERCs.
• The field related to electricity is traceable to Entry 38 of the Concurrent List.

Conclusion

• The Union government increasingly extending its hands to subjects in the Concurrent List is a cause of grave concern.
• As the Supreme Court held in the S.R. Bommai vs Union of India case, the States are not mere appendages of the Union.
• The Sarkaria Commission Report had specifically recommended that there should be a “coordination of policy and action in all areas of concurrent or overlapping jurisdiction through a process of mutual consultation and cooperation is, therefore, a prerequisite of smooth and harmonious working of the dual system”.
• It is not in the essence of federalism for the Union government to legislate unilaterally, avoiding discussions with the States on the subjects in the Concurrent List.
• The essence of cooperative federalism lies in consultation and dialogue, and unilateral legislation without taking the States into confidence will lead to more protests on the streets.

-Source: The Hindu