Polity: Federalism- Debate, landmark cases, Types of Federalism, J&K and more

Headline : The forms of federalism in India

Details :

Why in News?

  • The Union government has withdrawn the special status conferred on Jammu and Kashmir (J&K) under Article 370 of the Constitution. It has also divided the State into two regions and declared them as Union Territories.

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The debate concerning with federalism:

Nations are described as ‘federal’ or ‘unitary’, depending on the way in which governance is organized.

  • 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.

As the current political status of J&K — as two Union Territories — is a form of demotion from the sort of autonomy it enjoyed, it becomes an issue concerning federalism.

Is India a federal state?

Article 1 of the Constitution states, “India, that is Bharat, shall be a Union of States”. While the Constitution doesn’t mention the term “federal”, it does provide for a governance structure primarily federal in nature. It provides for separate governments at the Union and in the states. Further, it specifies and demarcates the powers, functions and jurisdictions of the two governments. Last, it details the legislative, administrative and financial relations between the Union and the states.

S.R. Bommai v. Union of India, it has been held that “Democracy and federalism are essential features of our constitution and are part of its basic structure”. With increased political decentralization, India was ripe to evolve from a “union of states” to a “federation of states”.

There exist certain provisions in the Constitution which are considered to be going against the principle of federalism.

  • For example, article 200 of the constitution in which it is said that certain bills passed by state legislatures may be reserved by the governors for the consideration of the president of India.
  • The another article which is considered to be a deviation from the principle of federalism is Articles 356, 352 and 360 which gives the power to the president to declare emergency, which can transform federal system into a unitary system.
  • There are many circumstances in which the central government has used this power to dissolve the state governments of the opposite parties and to remain in power at the centre.

A disconcerting trend has been observed since 1950. While the Union and Concurrent Lists have expanded, the State List seems to have shrunk. This has led many to question the structure of Indian federalism and to propose its remodeling.

Why India is called ‘quasi-federal’:

The Supreme Court has commented on the nature of the Indian Union in several judgments. It has noted that the essence of a ‘federation’ is the existence of the Union of the States, and the distribution of powers between them.

  • In India, on the other hand, Parliament has the power to admit new States, create new States, alter their boundaries and their names, and unite or divide the States. The concurrence of States is not needed for the formation and unmaking of States and Union Territories.
  • Several provisions of the Constitution allow the Centre to override the powers of the States. For example existence of Concurrent List in Legislature.
  • In India, the residuary powers of legislation, that is the power to make law in a field not specified in the Constitution, is vested in Parliament, whereas in the U.S., residuary powers are with the States.
  • Further, in fiscal matters, the power of the States to raise their own resources is limited, and there is a good deal of dependency on the Centre for financial assistance.

Even though the States are sovereign in their prescribed legislative field, and their executive power is co-extensive with their legislative powers, it is clear that “the powers of the States are not coordinate with the Union”. This is why the Constitution is often described as ‘quasi-federal’.

Why is it said that India has asymmetric federalism:

  • The main forms of administrative units in India are the Centre and the States. But there are other forms, too, all set up to address specific local, historical and geographical contexts.
  • Besides the Centre and the States, the country has Union Territories with a legislature and Union Territories without a legislature. Parliament has overriding powers over any law made by the Assembly in the Union Territories.
  • Just as the Centre and the States do not have matching powers in all matters, there are some differences in the way some States and other constituent units of the Indian Union relate to the Centre. This creates a notable asymmetry in the way Indian federalism works.

Special status for J&K and how it worked:

The foremost example of asymmetry among Centre-State ties was in the way J&K related to India until August 6, 2019.

  • Under Article 370, the State was allowed to have its own Constitution, its own definition of ‘permanent residents’, the right to bar outsiders from holding property, and the privilege of not having any Indian law automatically applicable to its territory.
  • Indian laws had to be specifically permitted by its Assembly before it could operate there. It was allowed to have its’ own Penal and Criminal Procedure Codes.
  • The President was empowered to notify, from time to time, the provisions of the Constitution that could be extended to the State, with or without modifications.

What does Article 371 provide?

Special status is not unique to Kashmir. However, the sort of asymmetry seen in J&K’s relationship to the Centre is not seen in other States. The ‘special provisions’ applicable to some other States are mainly in the form of empowering the Governors to discharge some special responsibilities. These States are Maharashtra, Gujarat, Manipur, Nagaland, Sikkim and Arunachal Pradesh.

  • Article 371 says the Governor of Maharashtra has a special responsibility to establish separate development boards for Vidarbha, Marathwada, and the rest of the State, while the Governor of Gujarat has a similar responsibility towards Saurashtra, Kutch and the rest of Gujarat. The responsibilities cover equitable allocation of funds for development expenditure, and providing facilities for technical education and vocational training.
  • Article 371A confers special status on Nagaland. Under this provision, no law made by Parliament in relation to Naga customary law and procedure, including civil and criminal justice matters, and ownership or transfer of land and resources will apply to Nagaland, unless the Legislative Assembly of Nagaland decides so. Further, the Governor of Nagaland has a ‘special responsibility’ regarding law and order in the State.
  • Article 371B contained a special provision for Assam under which a committee of legislators from the tribal areas was formed to look after their interest. The tribal areas later became Meghalaya State.
  • Under Article 371C, the Hill Areas of Manipur ought to have a committee of legislators. The Governor has a special responsibility to make an annual report to the President on the administration of the Hill Areas. The Centre is empowered to give directions to the State as far as these areas were concerned.
  • Article 371D is a detailed provision under which the President can pass an order to provide equitable opportunities and facilities to people belonging to different parts of Andhra Pradesh in public employment and education. In particular, the President can create local cadres in various classes of employment and allot civil posts to specified local cadres only.
  • Article 371F incorporated special provisions after the addition of Sikkim to India. One major objective was to grant protection to existing laws in Sikkim so that they are not declared unconstitutional after being brought under the Constitution of India.
  • Article 371G contains special provisions to preserve the religious and social practices of Mizos in Mizoram and their customary law and procedure and administration of criminal and civil justice, besides ownership of land.
  • Article 371H vests a special responsibility on the Governor of Arunachal Pradesh with respect to law and order. It makes clear that the Governor shall discharge this function after consulting the Council of Ministers, but exercise his individual judgment as to the action taken.

Other examples of decentralization of power:

There is another significant tier of administration under the larger framework of asymmetric federalism.

  • The Sixth Schedule to the Constitution contains provisions for the administration of tribal areas in Assam, Meghalaya, Tripura and Mizoram. These create autonomous districts and autonomous regions administered by District Councils and Regional Councils respectively. These Councils can make laws with respect to allotment, occupation and use of land, management of forests other than reserve forests and water courses. Besides they can regulate social customs, marriage and divorce and property issues.
  • In Assam, the Karbi-Anglong Autonomous Council, Dima Hasao Autonomous District Council and the Bodoland Territorial Council have been set up under the Sixth Schedule. Another six autonomous councils have been formed by Acts of the legislature.
  • Ladakh has two autonomous hill development councils (Leh and Kargil).
  • The Darjeeling Gorkha Hill Council is in West Bengal.

Recent Developments:

Typically, two opposite forces seem to operate: cooperative federalism and competitive federalism. Promoting both cooperative and competitive federalism has been an overarching theme of the government.

  • Cooperative federalism implies the Centre and states share a horizontal relationship, where they “cooperate” in the larger public interest.
  • Competitive federalism gained significance in India post the 1990s economic reforms.
  • The disbandment of the Planning Commission (PC) and its replacement by the NITI Aayog is specifically designed to promote cooperative federalism.
  • Institutional innovations such as the NITI Aayog and the GST council that now dominate Centre-state deliberations, and India today has a new framework for negotiating Centre-state relations.

Way Forward:

  • Cooperative and competitive federalism may be two sides of the same coin. Their complementarities are contingent on many affirmative steps.
  • Efforts at cooperative federalism have commenced but need to be strengthened.
  • An institutional mechanism like Inter-State Council must be reactivated where important issues are appropriately discussed with states for better policy coordination.

Section : Polity & Governance

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