Spirit of federalism lies in the constitution

Synopsis Legislation in a federal setup needs careful consideration while dealing with laws in the concurrent list.

Introduction

Recently, various State governments raised concerns about Central unilateralism in the enactment of critical laws on subjects in the Concurrent List of the Seventh Schedule of the Constitution. This may undermine federal principles in India.

What are the issues raised by various state ministers?

Kerala Chief Minister: He stated that unilateral legislation on the subjects in the Concurrent List is not in the essence of federalism.

Tamil Nadu Chief Minister: He also raised the issue by calling on other Chief Ministers against the Union government usurping powers under the State and Concurrent Lists.

What laws were made by the Union government without the consent of states?

Farm Laws: Parliament passed the farm laws without consulting the States. The laws, essentially, relate to Entry 14 (agriculture clause) and belong to the State List. Parliament passed these laws without proper consultation by citing Entry 33 (trade and commerce clause) in the Concurrent List. This has led to massive farmer protests in India.

Major Ports Authorities Act, 2021: Goa objected to the law, stating that it would lead to the redundancy of the local laws, including the Goa Town and Country Planning Act, the Goa Municipalities Act, the Goa Panchayat Raj Act and various other local laws.

Draft Indian Ports Bill, 2021: It 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 controlled by the Union government. Various coastal States like Odisha, Andhra Pradesh and others have objected to the Bill as it proposes to seize the power of the State government with respect to non-major ports.

According to the Indian Ports Act, 1908, which presently governs the field related to non-major ports, the power to regulate and control the minor ports remained with the State governments.

Electricity (Amendment) Bill, 2020: The field related to electricity is traceable to Entry 38 of the Concurrent List. The power to regulate the sector was vested with the State Electricity Regulatory Commissions (SERCs). However, the proposed amendment seeks to change the regulatory regime.

About the Center’s power to enact laws under the Concurrent list

Under the Government of India Act, 1935, certain subjects were put in the Concurrent List by giving the Union and the State Legislatures concurrent powers regarding them. State’s power to legislate on these subjects was to be shared with the Union so that there is uniformity in laws across the country.

What is the Supreme Court (SC) judgement?

State of Bombay vs F.N. Balsara case: The SC ordered in case of conflict between centre and state, after employing the doctrine of “pith and substance”, the laws of the State Legislature must prevail.

S.R. Bommai vs Union of India case: The SC told that the States are not mere appendages of the Union. The Union government should ensure that the power of the States is not trampled with.

What are the commission/committee recommendations?

Sarkaria Commission:It recommended that there should be mutual consultation, guided by coordination in all areas of concurrent or overlapping jurisdiction.

It was further recommended that the Union government, while exercising powers under the Concurrent list, should limit itself to the purpose of ensuring uniformity in basic issues of national policy and not more.

National Commission to Review the Working of the Constitution (NCRWC), or the Venkatachaliah Commission: It recommended that individual and collective consultation with the States should be undertaken through the Inter-State Council established under Article 263 of the Constitution.

So, the essence of cooperative federalism lies in consultation and dialogue, and not in unilateral legislation.

Source: This post is based on the article “Spirit of federalism lies in the constitution” published in The Hindu on 7^th September 2021