Lesson 8 – Federalism Important Notes

 

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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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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