A federal dilema : Political degeneration

“India i.e. Bharat shall be a Union of States,” this is what the Article 1 of the Constitution of India declares.

Political rivalries tempt the political parties to create constitutional deadlocks. Take the example of the recently enacted CAA (Citizenship Amendment Act 2019). The federating units are using their respective Assemblies as political weapons disregarding the Constitution of India. That by resorting to the unconstitutional methods and announcing that the State governments will not implement the Central legislative decision i.e. the CAA. The same case is about the NRC etc. Where are we heading at ?

Union List

Union List consists of 100 items (earlier 97) on which the parliament has exclusive power to legislate including defence, armed forces, arms and ammunition, atomic energy, foreign affairs, war and peace, citizenship, extradition, railways, shipping and navigation, airways, posts and telegraphs, telephones, wireless and broadcasting, currency, foreign trade, inter-state trade and commerce, banking, insurance, control of industries, regulation and development of mines, mineral and oil resources, elections, audit of Government accounts, constitution and organisation of the Supreme Court, High courts and union public service commission, income tax, custom duties and export duties, duties of excise, corporation tax, taxes on the capital value of assets, estate duty and terminal taxes

State List

State List consists of 61 items (earlier 66 items). Uniformity is desirable but not essential on items in this list: maintaining law and order, police forces, healthcare, transport, land policies, electricity in the state, village administration, etc. The state legislature has exclusive power to make laws on these subjects. In certain circumstances, the parliament can make laws on subjects mentioned in the State List, but to do so the Rajya Sabha (Council of States) must pass a resolution with a two-thirds majority that it is expedient to legislate in the national interest.

Though states have exclusive powers to legislate with regards to items on the State List, articles 249, 250, 252, and 253 mention situations in which the Union government can legislate.

Concurrent List

Concurrent List consists of 52 (earlier 47) items. Uniformity is desirable but not essential on items in this list. The list mentions marriage and divorce, transfer of property other than agricultural land, education, contracts, bankruptcy and insolvency, trustees and trusts, civil procedure, contempt of court, adulteration of foodstuffs, drugs and poisons, economic and social planning, trade unions, labour welfare, electricity, newspapers, books and printing press NS stamp duties.

Other (residuary) subjects

Subjects not mentioned in any of the three lists are known as residuary subjects. However, many provisions in the constitution outside these lists permit parliament or state Legislative assembly to legislate. Excluding the provisions of the constitution outside these lists per Article 245, the power to legislate on such subjects rests with the parliament exclusively per Article 248 Parliament shall legislate on residuary subjects following the Article 368 procedure as constitutional amendments.

In case the above lists are to be expanded or amended, the legislation should be done by the Parliament under its constituent power per Article 368 with ratification by the majority of the states. Federalism is part of the basic structure of the Indian constitution which cannot be altered or destroyed through constitutional processes.

The Union and States have independent executive staffs controlled by their respective governments. In legislative and administrative matters, the Central government cannot overrule the constitutional rights/powers of a state government except when a presidential rule is declared in a State. The Union's duty is to ensure that the government of every State is carried on in accordance with the provisions of the Constitution as per Article 355 and Article 256. The State governments cannot violate the Central laws in administrative matters. When a State violates the Constitution, Presidential rule is imposed under Article 356 and the President takes over the State’s administration with ex post facto consent of the Parliament per Article 357.

Article 282 accords financial autonomy in spending financial resources available to the states for a public purpose. Article 293 allows States to borrow without limit without consent from the Union government. However, the Union government can insist upon compliance with its loan terms when a state has outstanding loans charged to the consolidated fund of India or a federally-guaranteed loan.

The President of India constitutes a Finance Commission every five years to recommend devolution of Union revenues to State governments.

Under Article 360, the President can proclaim a financial emergency when the financial stability or credit of the nation or of any part of its territory is threatened. However, no guidelines define "financial emergency" for the country or a state or a union territory or a panchayat or a municipality or a corporation.

An emergency like this must be approved by the Parliament within two months by a simple majority and has never been declared. A state of financial emergency remains in force indefinitely until revoked by the President. The President can reduce the salaries of all government officials, including judges of the supreme court and high courts, in cases of a financial emergency. All money bills passed by the State legislatures are submitted to the President for approval. He can direct the state to observe economy measures.

States can make agreements among themselves. When a dispute arises with other states or a Union Territory or the central government, the Supreme Court adjudicates per Article 131. However, Article 262 excludes Supreme Court jurisdiction with respect to adjudication of disputes in the use, distribution or control of interstate river waters.

Under Article 263 the President can establish an interstate council to coordinate/resolve disputes between states and the Union.

The Government of India Act 1935 aimed at establishing India as a Federation of States. It emphasized the division of powers, independent and apolitical Governors and Governors-General and introduced provincial autonomy for the first time in India. On 26 January 1950, India adopted a new constitution.

Unitary bias:

Article 1 (1) of the constitution says India shall be a union of states and its citizens shall have at least two-tiered governance. The people of a Union Territory have every right to opt for statehood. Federalism being part of basic structure of the Indian constitution, denying federalism to the people of Union Territories is unconstitutional. However, the amended (in 1956) Article 3, allows the union government power with prior consent of the President (common head of states and union governments) to (a) form a new state/UT by separating a territory of any state, or by uniting two or more states/UTs or parts of states/UTs, or by uniting any territory to a part of any state/UT; (b) the power to establish new states/UT (which were not previously under India's territory) which were not in existence before.

Appointment and role of governors

Governor appointments are the responsibility of the President, on the advice of the Union Government. Governors are generally not residents of the state.

Should the constitutional machinery in a state break down, Article 356 allows a state of emergency that dissolves the state government and establishes Presidential rule. No emergency at the centre can dissolve the Union government. Misuse of Article 356 was rampant in the decades following its adoption, during the Indira Gandhi era. In 1991 the Supreme court passed a landmark judgement acknowledging misuse of the Article and establishing principles for the Union government to follow before a state of emergency can be invoked.

The Lieutenant Governors of Union Territories of India are designed as administrators and are appointed by the President on the advice of the Union government. Lieutenant Governors can override local government policies only after taking parliament consent.

Economic federalism :

States are at liberty to manage their finances as long as that does not lead to financial emergency as per Article 360. The Government of India is trying to impose uniform taxation throughout India and to take over states' tax collection mechanisms without regard to the impacts on individual states. Recently the Supreme Court upheld the constitutional right of states to impose an Entry Tax which is against the principle of a general sales tax (GST).

Control of industries, which was a subject in the concurrent list in the 1935 Act, was transferred to the Union List. The Union government in 1952 introduced the freight equalization policy that damaged many Indian states, including West Bengal, Bihar (including present-day Jharkhand), Madhya Pradesh (including present-day Chhattisgarh) and Orissa. These states lost their competitive advantage of holding mineral resources, as factories could now operate anywhere in India. This was not the case in the pre-independence era when business houses such as the Tatas and the Dalmias set up industries in these states, and most of the engineering industry was located in West Bengal. Following the end of the policy in the early 1990s, these states did not catch up with more industrialized states. In 1996, the Commerce & Industry Minister of West Bengal complained that "the removal of the freight equalisation and licensing policies cannot compensate for the ill that has already been done".

National laws permit a private/public limited company to raise loans internally and externally to its capacity. The Fiscal Responsibility and Budget Management Act, 2003 limits state borrowing even when they have not defaulted/faced a financial emergency. The employees' salary and pension expenditure of many state governments exceed their total revenue, without the President declaring a financial emergency. Article 47 of Directive Principles of the state policy prohibits intoxicating drinks that are injurious to health but is not enforced. Instead many states promote and tax liquor sales.

Political economy:

The government is devolving central funds to the states under specific schemes (NREGA, etc.) whose implementation by the states is controversially subject to government approval, which violates Article 282.The controversy arises from the fact that the grants for centrally sponsored schemes and central plan schemes are under the ruling party's control and discretion. The empirical research shows that a general tendency is to direct grants to states which are politically important rather than to those states which are in need or where poor people are concentrated. Chanchal Kumar Sharma has described such a 'use of discretionary funding for pursuing partisan goals' as an instance of pork-barrel politics in India. Sharma (2017) argues that in order to achieve partisan goals, the central government designs the nomenclature of the welfare schemes in a way that projects the prime minister's party as the source of these welfare schemes.

In brief, the Constitution makers have taken utmost care to project a federal look to the provisions of the constitution of India and at the same time unitary features of the state-craft were retained in order to keep India united.

In the early post-independence period, there was a sort of political unanimity since, the political party which ruled the Union government, the same party ruled the States as well. Therefore there was no confrontation between the Union Government and the State Government. The scenario drastically changed after 1967, as several States were controlled by different parties and the Central Government yet another party ruled. The three lists which govern the law-making and its implementation process by keeping them within their respective boundaries under the present federal system , now have come to be seen as confrontationist resulting into the tremendous pressure of the federal structure. Regionalism is on the rise and regional aspirations are threatening the national perspective.

A point of consideration suddenly occurs in the mind whether or not the present federal structure of the Indian Union succumbs to these fissures or withstands these internal skirmishes ?

Political battles which occur and as these are telecast from different legislative Houses, political kidnappings , indecent abuses hurled at one another, and at times these leading to criminal conspiracies, throwing paper-weights towards the Speakers’ Well, tearing off the legislative documents and throwing it at the Speaker as well as the Treasury Benches., thwarting the smooth proceedings of the legislative and House business and to compel the presiding officers to adjourn the House-proceedings, thereby incurring huge monetary losses running into crores of rupees per day.

All such eventualities raise very serious questions of the compatibility of the very system of governance –the Indian way. We have inherited the British model of Cabinet system of governance –the frame or the body we administer but have we failed to adopt or imbibe the liberal democratic psyche in our genes ? Or we are going to take another hundred years to naturalize these values into our soul ?

Political rivalries tempt the political parties to create constitutional deadlocks. Take the example of the recently enacted CAA ( Citizenship Amendment Act 2019 ). The federating units are using their respective Assemblies as political weapons disregarding the Constitution of India. That by resorting to the unconstitutional methods and announcing that the State governments will not implement the Central legislative decision i.e. the CAA. The same case is about the NRC etc. Where are we heading at ?

Remember Dr. Chandraprakash Dwivedi’s TV serial-- “ Chanakya” ? And his message—“Nation First” .

{ I have drawn references from several sources including the Text of the Constitution. I owe my gratitude to all of them }