Author: Anushmita Pramanik, B.A.LL.B (Hons) LL.M. from Ramaiah Institute of Legal Studies(Asst. Professor)
Introduction/federalism
The article studies the meaning of federalism in general terms. The rest of the paper tries to understand the federal features and the cooperative federal features in the political process of the country. The author tries to analyses the shift from rigid federalism to cooperative federalism and in this regard studies the legal framework and other measures that has strengthened the cooperative federalism in India.
Federalism is derived from a Latin word, ‘foedus’ meaning treaty, compact or contract. Federalism is “an indestructible union of destructible states” it was perceived that states must be integral part of India denying any right to Secede.[i] In this system powers have been divided between the two sets of government between the center and its constituent parts such as states or provinces.
There are two kinds of federations: -
1. Holding together federation – In this type, powers are shared between various constituent parts to accommodate the diversity in the whole entity. Here powers are generally titled towards the central authority. Example India, Spain and Belgicus.
2. Coming together Federation – In this type, independent states come together to form a larger unit. Here, states enjoy more autonomy as compared to the holding together kind of federation. Example USA, Australia.
Federalism in India
India had emerged as an independent nation after a painful and bloody partition. Soon after independence, several princely states became a part of the country. The constitution declared India as a union of states. The constitution provided a threefold distribution of legislative powers between the union government and the state govt. Thus, it contains three lists.
1. Union list -includes subjects of national importance such as defense,foreign affairs, banking, communications and currency, we need a uniform policy on these matters throughout the country.
2. State list -includes subjects of state and local importance such as police, trade, commerce, agriculture and irrigation.
3. Concurrent list – forest, trade unions, marriage, adoption and succession. Both the union as well as the state government can make laws on the subjects mentioned in this list. If their laws conflict with each other, the law made by the Union Govt will prevail.
The sharing of power between the union government and the state government is basic to the structure of the constitution[ii]
Federalism with a strong Central Government
Indian constitution has created a strong central government, not only for strengthening the nation integrity of the nation but also to solve the socio-economic problems in the society. Important provisions that create a strong central government –
1. The parliament is empowered to form a new state by separation of territory from any state or by uniting two or more states. It can also alter the boundary of any states or even its name.
2. The constitution has certain very powerful emergency provisions, which can turn our federal polity into a highly centralized system once emergency is declared.
3. Even during normal circumstances, the central government has very effective financial powers and responsibilities. States are mostly depended on the grants and financial assistance from the center.
4. Besides, the governor has all the power to reserve a bill passed by the state legislature, for the assent of the president. This gives the central government an opportunity to delay the state legislation and also to examine such bills and veto them completely.
5. There may be occasions when the situation may demand that the central government needs to legislate on matters from the state list. This is possible if the move is ratified by the Rajya Sabha.
Thus, from the above, we have seen that the Constitution has vested very strong powers in the Centre. Therefore K.C. Wheare, describes it quasi federal in nature.[iii]
Cooperative Federalism
With the passage of time, however the concept of competitive federalism slowly gave way to cooperative federalism. This trend has been promoted by three powerful factors:
1. The exigencies of war when for national survival, national effort takes precedence over fine points of Centre- State division of powers.
2. Technological advances mean making of communication faster.
3. The emergence of the concept of a social welfare state in response to public demand for various social services involving huge outlays which the governments of the units could not meet by themselves out of their own resources.
The concept of cooperative federalism helps the federal system, with its divided jurisdiction, to act in unison, it minimizes friction and promote co-operation among the various constituent governments of the federal union so that they can pool their resources to achieve certain desired national goals. Money has been one of the strongest motive forces in the emergence of this concept. The center with its vast financial capacity is always in a position to help the units which always need it to meet the expanding demands on them for social services following int their legislative spare, and this brings the two levels of government closer.[iv]
It means that though there is a constitutional provision for the distribution of powers in practice, these powers are to be exercised jointly by the center and states. As observed by distinguished jurist M.P. Jain, these governments are interdependent and not independent.[v] Though there is division of functions between the center and the units in a federation, and the respective areas of competence of each is earmarked, as these governments act side by side in the same country, inevitably many types of relations arise amongst them.
From Competitive to Co-operative Federalism
In the three older federations of the U.S.A., Canada and Australia, in the formative stages of development, the dominant operative concept was that of ‘competitive federalism’ which denoted a spirit of competition and rivalry between the Centre and the States. With the passage of time, however, the concept of ‘competitive federalism’ slowly gave way to ‘co-operative federalism’. This trend has been promoted by three powerful factors:
1. The exigencies of war when there is a threaten to national security then center takes over states.
2. Technological advances mean making of communication faster.
It has come to be realized that the various governments in a federation are interdependent and they work in co-ordination so as to promote and maximize public welfare.[vi]
The framers of the Indian Constitution took due note of the emerging trend of co-operative federalism in the older federations. They realized that government in a federation were arranged not hierarchically or vertically but horizontally, that no line of command runs from the Centre to the States, and that common policies among the various governments can be promoted not by dictation but by a process of discussion, agreement and compromise. Several features and provisions of the Constitution have been deliberately designed to institutionalize the concept of Centre – State co-operation.
The provisions for enabling Parliament to legislate in the State area on the request of two or more States, the scheme of financial relations between the Centre and the States, grants-in-aid under Art.282, the scheme of Centre-State administrative relationship along with provision for all- India services, are some of the instruments to promote inter-governmental co-operation and introduce the necessary flexibility in rigid federal set up.[vii]
Legal Framework for Cooperative Federalism
Art. 1 of the Constitution of India states that India, that is Bharat, shall be a Union of States. Thereby implying no unit constituting the Indian Union can secede from it, the country is divided into several units, known as States or Union territories. The Union of India is a federal Union with a distribution of powers, of which the judiciary is the interpreter.[viii]
Art. 261 provides full faith and credit clause to be given throughout the territory of India to public acts, records and judicial proceedings of the union and the states. The term public acts in this article refer not only to statues but to all executive and legislative acts. The clause however does not envisage that a greater effect to be given to a public act of one state in another state than it is entitled to the home state itself. Hence, ultra vires or unconstitutional statute need not be recognized in any other state.
Under entry 12, list III, ‘recognition of laws, public acts and records and judicial proceedings’ is a concurrent subject. Therefore, the states are also entitled to legislate on this matter but subject to the exclusive power conferred on parliament under Art. 261(2).
Under Art. 261(3), a final judgement or order delivered or passed by a civil court in any part of India is capable of execution anywhere within India according to Law. This is a constitutional provision that a decree shall be executable in any part of the territory of India according to law. The clause applies to civil and not to criminal courts.[ix]
Art 263 provides that the president may by order appoint an Inter- State Council if it appears to him that public interest would be served by its establishment. To create strong institutional framework to support the cooperative federalism in India. It may be charged with the duty of:
a. Inquiring into and advising upon disputes which may have arisen between states.
b. Making recommendations upon any subject and, in particular, recommendations for the better co-ordination of policy and action with respect to that subject.
It appears from the above that the council is envisaged to be an advisory body having no authority to give a binding decision. The council’s function to inquire and advise upon Inter state disputes is complimentary to the Supreme Court’s jurisdiction under Art. 131 to decide a legal controversy between the governments. Under Art. 263, four regional councils have been set up for making recommendations for the better co-ordination of policy and action with respect to sales tax, a state subject. A regional council has been established in each of the four zones – Northern, Eastern, western and Southern. A study team of the Administrative Reforms Commission suggested the establishment of an Inter-state Council under Art. 263 with a view to strengthen co-operation and co-ordination, and evolution of common policies, among the Central and State Governments in many areas where the measures taken by these governments from time to time are mutually interactive.[x]
Institutional Framework: NITI AAYOG
The Aayog, which has taken over from the old planning commission, is promoting a bottom-up approach to development planning. NITI Aayog performs following functions which help in achieving cooperative federalism.
1. The institution has to provide government at the central and state levels with relevant strategic and technical advice.
2. The infusion of new policy ideas and specific issue-based support.
3. To respond to the changing and more integrated world that India is part of.
NITI Aayog will function in close Cooperation, Consultation and Coordination with the Ministries of the Central Government and State Government. It will provide critical directional and strategic input to the development process, focus on deliverables and outcomes. [xi]
Conclusion
The Scheme of distribution of powers, representation of states in law-making and policy making and the establishment of bodies like Inter- State Council, Zonal Councils, the Governing Council of the NITI Aayog all demonstrate the conviction of the government to develop a unified framework of cooperative federalism.
The Sarkaria Commission and Punchhi Commission on Centre – State relations gave several recommendations to cultivate cooperative federalism and suggested actionable steps. Certain constitutional amendments can better federalism and its actualization to list a few –
The office of the governor should be a political, and the terms of his removal should be altered and therefore the appointments of governor should be strictly non-partisan.
Restricting the use of president’s rule under Article 356 to prevent excessive misuse by the center.
Extending the mandate of the Inter-State Council beyond advice and recommendations.
The other dimension of tension in our federal system has been the demand to create new states. In December 1953, the state’s reorganization commission was set up and it recommended the creation of linguistic states.
When there is a dispute between state and center over autonomy and other issues like the share in revenue resources, then judiciary acts as the arbitration mechanism on disputes of legal nature. Ultimately, the people and the political process must develop a culture and a set of values and virtues like mutual trust, toleration and a spirit of cooperation. A responsive polity sensitive to diversities and to the demands for autonomy can alone be the basis of a cooperative federation.
[i]PAWANPREET SINGH, Cooperative Federalism in India: A Constitutional Reality or Myth, 1. LEX FORTILEGAL JOURNAL 3 (2020),https://lexforti.com/legal-news/wp-content/uploads/2020/08/Cooperative-Federalism-Pawanpreet-Singh.pdf [ii]NCERT, DEMOCRATIC POLITICS, 16-18 (National Council of Educational Research & Training. 2022) https://ncert.nic.in/textbook/pdf/jess402.pdf [iii]NCERT, POLITICAL SCIENCE INDIAN CONSTITUTION AT WORK CHAPTER 7, FEDERALISM 161-162 (National Council of Educational Research and Training. 2022)https://ncert.nic.in/textbook/pdf/keps207.pdf [iv]M.P. JAIN, INDIAN CONSTITUTIONAL LAW, 731-732(LEXIS NEXIS 2016) [v]ARADHANA SWANAND, Analysing the meaning of cooperative Federalism in India: Idealistic or Pragmatic, LAWOCTOPUS (July 8, 2021), https://www.lawctopus.com/academike/cooperative-federalism-in-india/ [vi]M.P. JAIN, supranote 731-732 [vii]Id. 733 [viii]INDIAN CONST. art. 1. [ix]M.P. JAIN, supra note 733 [x]Ibid. 734-735 [xi]Define Cooperative Federalism. What is the role of NITI Aayog in achieving the goal of cooperative federalism. GK TODAY (June 8, 2019)https://www.gktoday.in/upsc-questions/define-cooperative-federalism-what-is-the-role-of/