Lesson 8 – Federalism
Federalism is the form of government where the powers are
divided between its constituent units - the Centre and the States – in a way
that each remains independent of each other.
Division of Powers
The federal principle envisages sharing of power between the
Centre and the States. It is the Constitution that confers powers on these
units by specifying the subjects allotted to both the Centre and the States.
The Indian Constitution provides for three lists – According to Article 246
Parliament has been given the exclusive power to make laws on matters mentioned
in the Union List and the State Legislature has been given the exclusive powers
to make laws on matters mentioned in the State List.
In case of a conflict between the law made by Parliament and
the State Legislature on a matter mentioned in the Concurrent list, the law
made by Parliament prevails and the law made by the State legislature shall be
void to the extent it clashes with the law made by Parliament (Article 254).
List I of Schedule 7 called as Union List contains 100
subjects of national importance e.g. Defence of India, Armed forces, Foreign
affairs, War and peace, Railways, Currency and coinage, Reserve Bank of India,
Trade and Commerce, etc. on which the Central Government can legislate.
List II of Schedule 7 contains 61 subjects e.g. Police,
Prisons, Local governments, Public health, Agriculture, Land, Money lending,
etc. over which the State legislature has exclusive power to make laws.
List III of 7th Schedule contains 52 subjects e.g. Criminal
law, Marriage and Divorce, Forests, Price control, Factories, Acquisition and
requisitioning of property, etc. on which both the Centre and the States are
competent to make laws.
Legislative Relations
In ordinary circumstances the distribution of powers in
legislative matters is guided by Article 245 and Article 246 which specifies
the subjects and the jurisdictions of the Centre and the States.
But under certain circumstances this scheme of distribution
of powers automatically gets modified whereby many articles of the Constitution
either empower Parliament to make laws even on matters mentioned in the State
list or empower the President to veto the Bills passed by the State
legislature. For example:
a) According to Article 249, if the Rajya Sabha passes a
resolution, supported by at least 2/3rd of its members, present and voting,
declaring a particular subject to be of ‘national interest’, then the
Parliament becomes competent to make law on the specified State subject, for a
period of not more than one year at a time.
b) Under Article 250, the Parliament has the power to make
laws on State subjects for the whole or any part of the territory of India
during ‘the proclamation of Emergency.’
c) According to Article 252, the legislatures of two or more
States may pass resolutions requesting Parliament to make laws on a subject
which is not included in the Union list. Such laws will be applicable only in
those Stated which have passed such resolutions. It will also apply to those
Stated which adopt it by resolution. For example, The Wild Life (Protection)
Act, 1972; The Transplantation of Human Organs Act, 1994 were passed under
Article 252.
d) According to Article 253 Parliament has the power to make
laws for implementing any treaty, agreement or convention with any other country
or any decision made at any international conference or body. Under this
article the Parliament may legislate on a subject enumerated in the State list.
e) The Governor of the State may reserve certain kinds of
Bills for the Presidential assent. Even some of the Bills pertaining to matters
mentioned in the Concurrent list [Article 254(2)] may also be reserved by the
Governor for the consideration of the President.
f) Whenever emergency is declared in the country under
Article 352 of the Constitution, Parliament gets the power of making laws on
matters mentioned in the State list [Article 250(1)] which means for all
practical purposes the State list is automatically converted into a Concurrent
list.
Despite the fact that certain important subjects are listed
in the State list, Parliament can intervene in that field on many grounds
mentioned in the Constitution and this has strengthened the position of the
Centre vis-a-vis the States. The socio-economic-political conditions of the
Country and the international environment at the time of the framing of the
Constitution made it all the more essential to strengthen the Centre and this
was done by giving it a dominant role in the distribution of legislative
powers.
Administrative Relations
The Indian federal system is based on the general principle
that the executive power is coextensive with the legislative power, i.e., the
executive power of the Union extends to all those matters with respect to which
Parliament has the power to make laws (Article 73) and the executive power of
the States extends to all those matters with respect to which the legislature
of the State has the power to make laws (Article 73).
The Union may give directions to a State –
a) To ensure compliance with laws made by the Parliament (Article
256).
b) To ensure that the executive powers of the State is
exercised in a manner not to impede the exercise of the executive power of the
Union (Article 257).
c) For the construction and maintenance of means of
communication of national and military importance and for the protection of
railways within the State.
d) To execute schemes related to welfare of Schedule tribes
(Article 339).
e) To ensure that every State is run in accordance with the
provisions of the Constitution (Article 355).
f) Regarding the manner in which the executive power is to
be exercised during a Proclamation of Emergency under Article 352 (Article
353).
Also, if a State fails to comply with any of the directions
given by the Government of India under any of the provisions of the
Constitution, the President may hold that a situation has arisen in which the
Government of the State cannot be carried on in accordance with the provisions
of this Constitution (365).
Other than those mentioned above, there are certain more
provisions in the Constitution which tilt the balance of power in favour of the
Centre. For example:
a) Article 275 provides for payment by the Union of
grants-in-aid of revenues of the States.
b) The officers of the All-India Services are allotted to a
State cadre but are controlled by the Union. More such All-India services can
be created by the Centre if the Rajya Sabha by passing a resolution by
two-thirds majority of members present and voting recommends the creation of
such All-India services.
c) Article 258 empowers the Union to entrust certain
functions either conditionally or unconditionally to the State government or
its officers with the consent of the State government. But in certain cases
even without the consent of the State government, Parliament, may by law confer
powers and imposes duties on State officials.
d) Governors are the Constitutional Head of the State and
they are appointed, dismissed and transferred by the President. Many a times,
because of the pressure of the Central government, they have to exercise their
power of appointing and dismissing Ministries, summoning, proroguing and
dissolving the Assemblies; making recommendations to impose the President’s
rule, keeping in view the interests of the ruling party at the Centre.
The facts mentioned here undoubtedly point towards the
administratively predominant position of the Centre vis-à-vis the States.
Though the Constitution framers tried their best to delicately balance the
issues of State autonomy and that of providing for a strong Centre to maintain
the Unity and Integrity of the Country, yet the States occupy a subordinate
position as far as administrative powers are concerned.
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5.B.A Political Science Hons. History Lesson 4th Important Notes Part 2
Financial Relations
In order to ensure that both the Centre and the States have
their independent sources of income the Constitution framers, in Part XII of
the Constitution, made provisions for the distribution of various taxes and
duties between the Centre and the State. But a detailed analysis of Articles
264 – 300 will reveal that the States have been made dependent on the Union for
funds. The various taxes, duties, and other sources of revenue can be
summarised in the following six categories:
a) Taxes levied by the Union but collected and appropriated
by the States. They are:
i) Stamp duties mentioned in the Union list, and
ii) Duties of excise on medicinal and toilet preparations.
The Union has no share in the proceeds (Article 268).
b) Taxes levied and collected by the Union but are assigned
to the States as per the principles formulated by the Parliament by law
(Article 269).
c) Taxes levied and collected by the Union (except those
mentioned in Articles 268, 268 A and 269) and distributed between the Union and
the States (Article 270). This article was inserted by the 80th Constitution
Amendment act, 2000 and has considerably increased the resources of the States.
d) Article 271 provides for levy of surcharges on duties and
taxes. The proceeds of such surcharges go to the Union exclusively with no
share to the States.
e) Taxes which are levied and collected by the Union and may
be distributed between the Union and the States if Parliament by law so
provides (Article 272).
Consolidated Fund: Under Article 266, the
Constitution has brought in to existence a Consolidated Fund for the Central
government and also a separate Consolidated Fund for each State. All the
receipts of the taxes, fees, cesses, etc., in favour of the Centre or the State
are credited in their Consolidated Funds respectively. In order to withdraw
money from the Consolidated Fund the competent legislature passes Appropriation
Acts. The purpose of creating these funds was to ensure that no appropriation
can be made from these Funds without the authority of law.
Finance Commission and Planning Commission: Article
280 provides for the Constitution of a Finance Commission. Article 280(3) of
the Constitution has assigned an important role to the Finance Commission so
far as the distribution of the net proceeds of the taxes which are to be and
may be divided between Centre and the States and in giving grants-in-aid
including the determination of the principles governing them is concerned.
Despite the fact that there is a division of powers between
the Centre and the States, the Centre has very frequently used its powers to
meet the political needs of the party in power. The various issues that have
been major irritants in the Centre – State relations are:
(a) Discriminatory Role of the Governor
(b) Reservation of Bills for the Consideration of the
President
(c) Dismissal of State Governments under Article 356
(d) Use of All India Services by the Centre
(e) Discrimination against States in allocation of Funds
(f) Postponement of Assembly By-elections on partisan
grounds
(g) Appointment of Enquiry Commissions
(h) Demand for State Autonomy
(i) Law and Order problem in the States and the role of the
Centre
(j) Differences on Finance and Planning
(k) Inter-State Disputes (Boundary and Water)
Fifth and Sixth Schedules
The fact that the geographical size of the States is
different from each other requires that the Constitution recognises this
inequality while at the same time protect the diversity as well as the unity of
the country. The statutory arrangements recognising this asymmetry have been
appropriately incorporated in the Constitution. These asymmetries have been
visible in different forms – economic, social, and cultural.
With the purpose of protecting the interests of Scheduled
Tribes with regard to land alienation and other social aspects provisions of
‘Fifth Schedule’ and ‘Sixth Schedule’ have been integrated in the Constitution.
The Constitution contains special provisions for administration and control of
certain areas which have been named as Scheduled Areas and also for Scheduled
Tribes even though such areas form part of a State or Union Territory.
1) Fifth Schedule
The Fifth Schedule under Article 244(1) of the Constitution
defines ‘Scheduled Areas’ as those areas as the President may by order declare
to be Scheduled Areas after consultation with the Governor of the State. Fresh
orders may be issued from time to time redefining the Scheduled Areas. This
Schedule covers Tribal areas in 9 states of India namely Andhra Pradesh,
Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh,
Maharashtra, Orissa, and Rajasthan. The main provisions are as follows:
a) The executive power of the State is subject to the 5th
Schedule.
b) The Governor is required to report to the President
annually or whenever so required by the President regarding the administration
of the Scheduled Areas.
c) Each State has a Tribes Advisory Council consisting of
not more than 20 members of whom ¾ shall be the representatives of Scheduled
Tribes in the Legislative Assembly of the State. It is the duty of the Tribes
Advisory Council to advise the government on the matters relating to the
welfare and advancement of the Scheduled Tribes referred by the Governor.
d) The Governor is authorised to direct that any particular
Act of Parliament or of the State legislature shall not apply to a Schedule
Area or shall apply with such modifications as may be specified.
e) The Governor is authorised to make regulations to
prohibit or restrict transfer of land by or among the members of Scheduled
Tribes. All such regulations made by the Governor must have the assent of the
President.
The purpose of the Fifth Schedule is to provide protection
to the Tribal people living in these Scheduled areas from being alienated from
their land and natural resources.
2) Sixth Schedule
To safeguard the democratic traditions and cultural
diversity of the tribes residing in the hilly areas of the North-eastern
States, the provision of tribal self-rule was envisioned by the Constitution
makers. These provisions are enshrined in the Sixth Schedule, which in
accordance with Article 244, lays down special provisions for administration of
Tribal Area in Assam, Meghalaya, Tripura, and Mizoram. The following provisions
emanate from this Schedule:
a) Each Tribal Area is administered as an autonomous
district.
b) Such districts remain under the executive authority of
the State in which it is situated but District Councils and Regional Councils
are created which exercise certain legislative and judicial functions.
c) These councils have power to make laws for certain
specified subjects, e.g. land use, land occupation, succession of property, use
of water course, management of forest, marriage and divorce, social customs, flood
control, trade and commerce, etc.
d) They have also been conferred judicial powers. They can
constitute village councils or courts for the trial of suits and cases between
parties all of whom belong to Scheduled Tribes within such areas.
e) The Councils have the power to assess and collect land
revenue and to levy certain specific taxes, e.g. taxes on profession, animals
and vehicles, on entry of goods etc.
f) The President in regard to a Central Act and the Governor
in regard to a State Act may direct that the Central Act or State Act shall not
apply to an autonomous district or shall apply with such modifications as may
be specified.
g) The Councils will be subject to the jurisdiction of the
High Court.
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