Federalism

Published by vishal.hembram1990 on

Political scientists have classified government into unitary and federal on the basis of the nature of relations between the national government and the regional government. A federal government is one in which powers are divided between the national government and the regional governments by the jurisdiction independently.In a federal model, the national government is known as the Federal Government or the Central Government or the Union Government.•• The distribution of powers is an essential feature of federalism. A federal Constitution establishes the dual polity with the Union at the centre and the States at the periphery, each endowed with the sovereign powers to be exercised in the field assigned to them respectively by the Constitution. The one is not subordinate to the other in its own field; the authority of one is co-ordinate with the other.•• In the Indian federal set-up, the Constitution divides powers between centre and states as:-

i. Legislative

ii. Administrative

iii. Financial
LEGISLATIVE RELATIONS• Article 245 to 255 in part XI of the Constitution deals with the Legislative relation between the Centre & the States.•• Article 245(1) of the Constitution of India provides that the Parliament has power to make laws for the whole or any part of territory of India. This includes not only the States but also the UTs or any other area, for the time being included in the territory of India. It also possesses the power of ‘Extra-Territorial Legislation’ which no State Legislature possesses.•• The State Legislature is competent only to make laws for the whole or any part of the state to which it belongs.•• For certain UTs like Andaman & Nicobar and Lakshadweep, regulations made by the President have the same force as the Acts of the Parliament and such regulations may repeal or amend a law made by Parliament in relation to such territory.•• The application of Acts of parliament to any Scheduled Area may be barred or modified by notifications made by the Governor.•• In distributing the subject matters between Centre and states, our Constitution makers followed Canadian scheme. However they added one more list to it, Concurrent list. (GOI Act 1935 had 3 fold enumeration – federal, provincial and concurrent) at present:

1. Union List – 100 subjects2. State List – 61 subjects, originally 66 subjects3. Concurrent List –52 subjects, originally 47 subjects

•• Subjects mentioned in the Union List are of national importance and only Parliament is competent to make laws on these subjects.

•• For State List, only the States have exclusive power to make laws.

•• Concurrent list is a “Twilight Zone”, where both the Union and the states are competent to make law, without any conflict.•• Residuary powers (Article 248): Parliament has exclusive power to make laws on the subjects not enumerated in any of the lists (Entry 97 of Union List).•• Wherever the conflict arises as to a subject matter, the Union List predominates over the other lists.•• To determine whether a particular enactment falls under one entry or the other, it is the pith and substance of such enactment and not its legislative level that is taken account of.

• Colorable Legislation – The motives of the legislature are, otherwise, irrelevant for determining whether it has transgressed the constitutional limits of the legislative power. This principle is based on the maxim that you cannot do indirectly what you can not do directly.

•• Under Art 249, in the national interest, Parliament has the power to make laws w.r.t. any matter included in the State List, for a temporary period, if Rajya Sabha passes a resolution supported by 2/3rd of the members present and voting in that respect.•• Under the proclamation of emergency, Article 250 empowers the Parliament to make laws for the whole or anypart of the territory of India w.r.t. all matters in the State List. Such a law however shall cease to effect on the expiration of 6 months after the proclamation of emergency has ceased to operate.•• Under Article 252, if the legislatures of two or more States pass a resolution to the effect that it is desirable to have a law passed by Parliament on any matters in the state list common to these states, Parliament can make laws in that respect.•• Under Article 253, Parliament has power to make any law for the whole or any part of the territory of India for implementing treaties and international agreements and conventions.•• Under Article 256, Parliament is empowered to make laws w.r.t. all matters in the state list when there is failure of constitutional machinery of the State under Article 356.

ADMINISTRATIVE RELATIONS•• During the time of emergency Indian Constitution works like a unitary government.•• In normal times, there are constitutional provisions which ensure the control of the union over the states. Some of the mechanisms are:•• Power to appoint and dismiss the Governor (articles 155- 156), power to appoint judges of HC, members of state PSC (articles 217, 317)•• Article 256 provides that the executive power of the state shall be so exercised as to ensure compliance with the laws made by the parliament and executive power of the Union shall also extend to the giving of such directions to a state as it may deem essential for the purpose.•• Further article 257 provides that states must exercise their executive power in such a way so as not to impede or prejudice the exercise of the executive power of the Union in the state.•• The powers of the Union Government also extend to giving directions to a state in 2 specific matters:1. Construction and maintenance of means of communication which are declared to be of national or military importance.2. Measures to be taken for the protection of the railway within the states.•• The Constitution prescribes and coercive sanction for the enforcement of its directions through article 356.

Delegation of Union functions to the States:

• Under article 258 (1), Parliament with the consent of the state government can entrust to it any matter falling with in the executive powers of the Union.•• Under article 258(2) Parliament is empowered to use state machinery for the enforcement of Union laws. For such purpose, it can confer powers or impose duties on state functionaries.•• Therefore under clause (1) delegation of power is made with the consent of the state, whereas consent of the state is not necessary under clause (2), and such delegation is done by the parliament by law. This implies that parliament can interfere in the state administration, even without the consent of the State.•• State government has also the power to delegate its functions to the Union and its officers. Article 258 (A) provides that Governor of the state with the consent of GOI, entrust to the government, such functions to which the executive power of State extends.•• All India services are common to both the Union and the states. The officers of these services are appointed and regulated by the Centre and are placed in various states.

• Grants in-aid (Article 275): Parliament has power to make such grants as it may deem necessary to give financial assistance to any state which is in need of such assistance (Article 275).•• Under Article 263, President has power to establish 

Inter- State Councils. These Councils have duty of inquiring into and advising upon disputes which arises between the states. These councils also investigate and discuss the subjects of common interest between the union and the States or between two or more states.ƒ. The President has so far established Central Council of health, a Central Council of local self-government and a Transport Development Council.•• Parliament has power to constitute an Inter-State Commerce Commission (Article 307) and empower it to execute such functions as it may deem fit.•• Article 261 provides that full faith and credit shall be given throughout the territory of India to public acts, records and judicial proceedings of the Union and every state.•• Article 261 (3) declares that final judgement or orders delivered or passed by civil courts in any part of territory of India can be executed anywhere in the country.•• Article 262: Adjudication of disputes relating to waters of inter-state rivers or river valleys. Article 262 (2) provides that parliament may by law provide that neither the SC nor any other court shall exercise jurisdiction in respect of any such dispute.
Financial Relations• Articles 268 to 293 in part XII deal with the financial relations.•• These relations are related to the distribution of taxes as well as non-tax revenue and the power of borrowing.•• Grant-in-aid forms an important part of centre-state relations.•• Parliament can levy taxes on the subjects enlisted in the List – I (Union List) while the states can levy taxes on the subjects mentioned in the State List. (List II).•• There are no taxes on the subjects of the Concurrent List (List III).•• Finance Commission (Article 280) recommends to the President on the distribution of net proceeds of taxes between the Centre and states.
IMPORTANT SUBJECTS IN VARIOUS LISTS:

Union List (List I)6. Atomic energy and mineral resources.18. Extradition.45. Banking.47. Insurance.48. Stock exchanges and futures markets.49. Patents, inventions and designs; copyright; trade-marks and merchandise marks.69. Census.85. Corporation tax.97. Any other matter not enumerated in List II or List III including any tax not mentioned in either of those lists.

State List (List II)1. Public order.5. Local government.6. Public health and sanitation.12. Libraries, museums and other similar institutions.14. Agriculture.21. Fisheries.25. Gas and gas-works.28. Markets and fairs.61. Captivation taxes.

Concurrent List (List iii)1. Criminal law.2. Criminal procedure.3. Preventive detention.5. Marriage and divorce.6. Transfer of property other than agricultural land.7. Contracts.13. Civil procedure.14. Contempt of court, but not including contempt of the Supreme Court.17. Prevention of cruelty to animals.20. Economic and social planning.26. Legal, medical and other professions.38. Electricity.40. Archaeological sites.
Administration of Union TerritoriesThere is no uniform system of administration in the union territories. Parliament has been vested with the power to prescribe the structure of administration in the various union territories. The administrators of union territories are variously known as Lieutenant Governors, Chief Commissioners or Administrators. In Daman and Diu and Pondicherry, they are designated as Lieutenant Governors. In Andaman and Nicobar Islands and Chandigarh they are known as Chief Commissioners and in Lakshadweep as Administrator.Similarly, some Union Territories possess Legislative Assemblies and Councils of Ministers such as Daman and Diu, Pondicherry, and Delhi (National Capital Territory), while othersdo not. It may be noted that in Union Territories with Legislative Assemblies, the right to legislate on subjects enumerated in the State List and Concurrent List vests with the Assembly.With respect to other union territories, the laws are enacted by the Parliament. The administrators of the union territories enjoy the right to issue ordinance within certain limitations. When thelegislatures of the union territories are dissolved or suspended, responsibility for the peace, progress and good government of the territory falls on the President.
Commissions for the Improvement of Centre-State Relations

There have been several efforts for the improvement of Centre-State relations. Central Government have set-up many commissions to review and examine the Federal Relations fromtime to time, leading among them are :
1.    Sarkaria CommissionSarkaria Commission was set-up in June, 1983 by the Central Government of India. The Sarkaria Commission’s charter was to examine the relationship and balance of power between State and Central Governments in the country and suggest changes within the framework of Constitution of India.The commission was so named as it was headed by Justice Rajinder Singh Sarkaria, a retired Judge of the Supreme Court of India and other two members of the committee were Shri BSivaraman and Dr SR Sen.The Commission made 247 recommendations to improve Centre-state relations.
2.    MM Punchhi CommissionA Commission on Centre-State Relations was set-upby the Government of India in April, 2007 under the Chair manship of Madan Mohan Punchhi, Former Chief Justice of India to look into the issues of Centre-State Relations.
3.    Inter-State Water Disputes• Article 262 of the Constitution envisages the adjudication of inter-state water disputes which make two provisions :1. Parliament may by law provide for the adjudication of any dispute or complaint with respectto the use, distribution and control of waters of any inter-state river and river valley.2. Parliament may also provide that neither the Supreme Court nor any other court is to exercise jurisdiction in respect of any such dispute or complaint.•• Under this provision, the Parliament has enacted two laws i.e. the River Boards Act of 1956 and the Inter-State Water Disputes Act of 1956.•• The River Board Acts, envisions the establishment of rivers boards for the regulation and development of inter-state river and river valleys. The Inter-State Water Disputes Act empowers the federal government (i.e. Central Government) to set-up an adhoc tribunal for the adjudication of a dispute between two or more states in relation to the waters of an inter-state river or river valleys.
Inter-State Water Dispute Tribunals:

NameYear of setupState involved
Krishna Water DisputesTribunal1969Maharashtra, Karnatakaand AndhraPradesh
Godavari Water DisputesTribunal1969Maharashtra, Karnataka,AndhraPradesh, MadhyaPradesh andOdisha
Narmada Water DisputesTribunal1969Rajasthan, Gujarat,MadhyaPradesh and Maharashtra
Ravi and Beas WaterDisputes Tribunal1986Punjab and Haryana
Cauvery Water DisputesTribunal1990Karnataka, Kerala,Tamil Nadu andPuducherry
Second Krishna WaterDisputes Tribunal2004Maharashtra,Karnataka and AndhraPradesh
Vansadhara WaterDisputes Tribunal2010Odisha andAndhra Pradesh
Mahadayi WaterDisputes Tribunal2010Goa, Karnatakaand Maharashtra

Inter-State Councils:•• The power of the President to set-up Inter-State Councils may be exercised not only for advising upon disputes, but also for the purpose of investigating and discussing subjects,in which some or all of the States or the Union and one or more of the States or the Union have a common interest.•• In the exercise of this power the President has already constituted the Central Council of Health, the Central Council of Local Self-Government, the Central Council of Indian Medicine, the Central Council of Homeopathy the changing role of Inter-State Council.

• The Inter-State Council was set-up under Article 263 of the Constitution of India in May, 1990. The council charged with the duty of:ƒ. inquiring into and advising upon disputes, which may have arisen between states;ƒ. investigating and discussing subjects in which some or all of the States or the Union and one or more of the states, have a common interest orƒ. making recommendations upon any such subject and in particular recommendations for the better coordination of policy and action with respect to that subject;•• It shall be lawful for the President by order to establish such a council and to define the nature of the duties to be performed by it and its organisation and procedure.
Composition of Inter-State CouncilThe Composition of the Inter-State Council includes the Prime Minister, Chief Ministers of all States, Chief Ministers of Union Territories having Legislative Assemblies and Administratorsof Union Territories not having Legislative Assemblies, Governors of states under President Rule, six Ministers of Cabinet rank in the Union Council of Ministers’ to be nominated by the Prime minister and two Ministers of Cabinet rank in the Union Council of Ministers to be nominated by the Prime Minister permanent invites.

Duties of the Council•• To investigate and discuss subjects of common interest.•• Make recommendations for the better coordination of policy and actions on such subjects; and•• Deliberate on such matters of general interest to the states referred by the Chairman to the Council. It shall have its own Secretariat.


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