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This article is written by Arya Mittal from Hidayatullah National Law University. The article analyses the debates surrounding the distribution of legislative powers between the Centre and states.

Introduction

It is believed that the federation with a strong centre is the soundest framework of the Indian Constitution. Though the states have been granted autonomy, many of the matters are exclusively dealt with by the Union. In such a scenario, the Union and states must work in harmony in the interest of the general public. This gave rise to the principle of cooperative federalism which states that the Union and states should cooperate with one another to avoid conflicts. This forms the crux of centre-state relations.

Centre-state relations have always been a topic for debate. Ever since India gained independence, the issue has attracted attention. Schedule VII which had to be discussed in two days, took six days (August 29, 1949 – September 03, 1949) of the Constituent Assembly, since it was a crucial issue. However, the issue could not be resolved. Later, different commissions also had to be formed to examine the relation between the two and the distribution of powers between them. The debate surrounding the distribution of powers in the three legislative lists has been discussed hereafter.

Constitutional Provisions

Schedule VII of the Constitution

Schedule VII is of utmost importance to determine the distribution of powers between the Centre and the states. It provides for three lists namely Union List (List I), State List (List II), and Concurrent List (List III). The majority of the powers were provided in the Union List followed by State List and Concurrent List. A large number of powers to the Union was the inception point of all debates.

Article 246 of the Constitution

This provision complements the three lists provided under Schedule VII. It states that the Parliament shall have exclusive right to form laws on subject matters enlisted in List I. The states shall have exclusive right to form laws on subject matters enlisted in List II. Lastly, the Centre as well as the states shall have mutual rights in subject matters provided in List III.

Article 248 of the Constitution

Article 248 gives residuary power to the Parliament i.e. it has the power to enact laws on those subjects which are not covered by List II and List III and this power even extends to the imposition of taxes. The same has also been supplemented by Entry 97 of List I of Schedule VII. 

Article 254 of the Constitution

Article 254 provides that in case of a repugnancy between a Central statute and state statute, the former would prevail and the latter would be void except if it follows the condition in clause (2) of the provision. This again gives superiority to the Union in comparison to the states in any of the subject matters concerning the Concurrent List.

Constituent Assembly debates

The Constituent Assembly debates held for six days saw a lot of complications in the distribution of powers in the three legislative lists. The national leaders such as Rajendra Prasad and Dr. B.R. Ambedkar advocated for a strong centre whereas leaders of many states and provinces were not convinced with the same. The opinions of such leaders have been discussed hereafter. 

Sardar Hukum Singh – leader of East Punjab Province

Sardar Hukum Singh stated that “With every day that passes, we are progressing more and more towards a unitary system, not merely in times of war as was first intended, but in normal times as well.” His contention related to List I, Entry 78 (List I, Entry 52 of the Draft Constitution) in pursuance of which, even the control of the High Courts was provided under the Union List. Yet another contention moved by him was concerning List I, Entry 97 (List I, Entry 91 of the Draft Constitution) which provided for residuary powers. He believed such power should not be accorded to the Union. Moreover, he sarcastically suggested changing the entries of List I as ‘all matters other than those in List II and List III’.

Kaka Bhagwant Roy – leader from Patiala and Eastern Punjab states

Kaka Bhagwant Roy also opposed giving excessive powers to the State. He stated, “India is a very big country. She has many provinces. These Provinces have their difficulties and can understand their problems much better than the Centre.” His amendment related to List I, Entry 52 (List I, Entry 64 of the Draft Constitution). He was of the view that powers related to industries should be dealt with by the State. Conferring them with responsibilities but not providing them with powers would slow down the industrial development in the country.

H.V. Kamath – a leader from Central Provinces and Berar

H.V. Kamath was also a prominent figure who advocated for the rights of states and provinces while the distribution of powers between Union and states and provinces. His amendment was related to List I, Entry 21 (List I, Entry 22 of the Draft Constitution). He opined that some states and provinces had certain developments in civil aviation so the entry should be made in Concurrent List rather than restricting it to the Union only. Another amendment moved by him was about regulation and control of films under List I, Entry 60 (List I, Entry 70A of the Draft Constitution). He believed owing to the linguistic and cultural differences, each province and state should have its own censorship board since one custom which will be permissible in one state, might find criticism in the other, which will make it impossible for the Union alone to control this situation.

R.K. Sidhwa – a leader from Central Provinces and Berar

R.K. Sidhwa also provided certain amendments in favour of states and provinces. One such amendment related to List I, Entry 68 (List I, Entry 41). He argued that the Central Government had been inefficient in extracting the rich minerals and identifying their correct usage. Thus, the matter should be exercised by the states and provinces who could do it in a much better way. Moreover, he strongly urged that Terminal Tax levied by local bodies should remain in State List and not be transferred to List I, Entry 89 (List I, Entry 83 of the Draft Constitution). He said, “I strongly feel that the Terminal Tax is entirely in the region of the Provincial Government and the Local Bodies and they have been levying it throughout the century and it will be wrong for the Centre to take away this item.”

Naziruddin Ahmad – a leader from West Bengal

Naziruddin Ahmad stated, “I should think that the Centre is getting seriously encumbered with a large number of subjects.….it would have the effect of unduly enlarging the jurisdiction of the Union, and curtailing the jurisdiction of the Provinces. This tendency should stop.” He also contended against giving excessive powers to the Union. This statement is an extract of his contention concerning List I, Entry 63 (List I, Entry 40 of the Draft Constitution) which gave power to the Union in regards to all educational institutions. This was criticised since the Centre could gain control over any institution in any state as per its wish.  In another statement, he said, “If the Provinces are to be robbed one by one of their powers, political, financial and others, it would be far better for us to say here and now that Provincial Autonomy must go and there must be a Unitary Government.” His disagreement related to giving power of non-narcotic drugs to the Centre under List I, Entry 84 (List I, Entry 86 of the Draft Constitution) which was exclusively a Provincial subject earlier.

Mahavir Tyagi – a leader from United Provinces

Mahavir Tyagi, who was representing the United Provinces, showed opposition to List I, Entry 3 (List I, Entry 7 of the Draft Constitution). The jurisdiction of cantonments in various states would be given to the Centre as per this entry. He believed it to be unjust if people are treated differently because one area lies in a cantonment zone while the other does not. He narrated about the practical difficulties which people had already been facing as a result of such existing provisions. However, his amendment was not moved and was negative.

Debates giving rise to Sarkaria Commission

Due to strenuous relations between Centre and states, Sarkaria Commission was formed in 1983 to examine the relations between Centre and states. Chapter II of the Report of the Sarkaria Commission relates to legislative relations. As evident from the report, the following contentions were raised by different state governments.

Exercise of legislative powers

Most of the states were vehement about the approach taken by the Centre in the exercise of its powers under List I. More than its existence, the leaders opposed the usage of its legislative powers. They believed Entry 52 and 54 of the Union List gave them excessive powers which reduced the role of states. However, the same was rejected by the Commission owing to its national importance.

Biasness towards centre

The states believed that the legislative lists were too biased and had an inclination towards the increased role of the Centre which reduced their role and powers. They contended that the lists need to be revisited so that powers could be decentralised. This was also rejected by the Commission which held that such division to be correct.

Abolition of concurrent list

Some states contended that List III should be banned and matters should exclusively be given to the Union or the states since it often leads to conflict and it is the act of the Union that prevails. Yet again, the argument was rejected by the Commission since abolishing List III would serve no good and makers of the Constitution had intentionally created it so that the Union and states can harmoniously work with one another for the development of the country.

Transfer from List III to List II

Certain states argued that some matters should exclusively lie in their jurisdiction and the Centre should not meddle in the affairs of the states. Consequently, they argued that certain subject matters should thus be transferred from List III to List II.

Debates giving rise to Punchhi Commission

The issue of centre-state relations rose again and as a result, the Punchhi Commission was formed in 2007 to review their relations. Volume II of the Report of Punchhi Commission relates to legislative relations. Major problems of distribution of powers have been stated in the report in Chapter 3 and the same has been discussed here.

Decentralisation

Most of the states believed that centralisation, required at the time of independence, is not needed anymore and thus, decentralisation should take place. They argued that the federal system should be made more prevalent to satisfy the needs of the present time. Lastly, they emphasised the ‘principle of subsidiarity’.

Exercise of power by states

As also contended by the Sarkaria Commission, most of the states were unsatisfied by the way in which the Union exercised its legislative powers to the prejudice of states. There were lesser issues with the distribution of powers and more issues with the exercise of such distributed powers. Moreover, the residuary power by the Union had also been the root of many problems.

State autonomy

State autonomy or provincial autonomy has been an issue since the independence of India. Even at that time, many leaders of different states and provinces raised issues for provincial autonomy and it seems that the issue is still prevalent today.

Consultation of states

Another important contention made by the states was that whenever the Centre enacts a statute on any subject matter of Concurrent List, it should take consultation of the states. They felt this was necessary so that their population could be adequately represented and the law could suit the conditions of their territory. Even the Commission agreed on the same and recommended it in its report.

Judicial pronouncements relating to legislative Lists

State of West Bengal v. Union of India (1962)

In this case, West Bengal contended that an act of Parliament was beyond its legislative powers and should be held ultra vires of the Constitution. The Supreme Court held that the Indian Constitution is ‘not truly federal in character’. Further, the Union had residuary powers and powers related to industrial, commercial and, economic unity lies with the Union.

International Tourist Corporation v. State of Haryana (1980)

The case related to the interpretation of Entry 97 of List I. the Supreme Court held that though the Union has residuary powers yet, it cannot ‘encroach into the legislative powers of states’ and use it so expansively that defeats the very purpose of a federation. It should not destroy the provincial autonomy of the states. Lastly, the residuary power should be used only when it is not enumerated in List II and List III and not in any other situation. 

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Federation of Hotel and Restaurant v. Union of India (1988)

In this case, the Supreme Court, while dealing with the overlapping of subjects in the three lists, held that “It is the duty of the Courts, however difficult it may be, to ascertain to what degree and to what extent, the authority to deal with matters falling within these classes of subjects exists in each legislature and to define, in the particular case before them, the limits of the respective powers. It could not have been the intention that a conflict should exist; and, to prevent such a result, the two provisions must be read together, and the language of one interpreted, and, where necessary modified by that of the other.” Thus, in such cases, the courts should always try to adopt a harmonious construction that does not result in the nullity of any of the statutes.

Forum for People’s Collective Efforts v. State of West Bengal (2021)

This is a recent judgement of the Supreme Court which struck down the real estate laws formulated by the West Bengal legislature since it was not in accordance with the centrally enacted RERA law. It held that “In such cases where the competent legislation has been enacted by the same legislature, techniques such as a harmonious construction can be resorted to, to ensure that the operation of both the statutes can co-exist. Where, however, the competing statutes are not of the same legislature, it then becomes necessary to apply the concept of repugnancy, bearing in mind the intent of Parliament.” Therefore, though the Court always tries to adopt a harmonious construction, if not possible, then the Central Act prevails.

Inferred reasons for the rift between centre and states

Historical reasons

Ever since the beginning, the kings and the rulers had their kingdom and inclusion in the Indian territory would mean reduced powers. Thus, the leaders were earlier reluctant to be a part of the nation.

Promise for a federal structure

At the initial point, the states and provinces were told that the country would remain federal and it was only in situations of exigency that the Union would take over the states, as also stated by Sardar Hukum Singh. However, gradually, most of the powers were given to the Centre to strengthen it which has been a great issue. 

Exercise of powers

The most common reason was the exercise of powers by the Union. It was believed that the Union abused its position and took undue advantage of the powers provided under the Union List. To exemplify, it exercised its residuary powers which were detrimental to the interests of certain states.

The reduced role of states

As stated by many leaders, when the Indian Constitution was being framed, a lot of powers were transferred to the Union, on which they earlier exercised exclusive power. This reduced role and power of states have been one of the reasons for criticism of the distribution of powers between centres and states.

Practical difficulties

The states had their own practical difficulties in implementing the provisions of the Constitution. To exemplify, cantonments were legislated by the Union which made it difficult for people since people of the same states had to follow different provisions without any reasonable classification. Similarly, when the films are regulated by a national board, it is impracticable to have a board member of every state but at the same time, in absence of that, sentiments of a particular community might be affected which might not have arisen if such power rested with states.

The inefficiency of Central government

Due to so many powers and responsibilities vested in the Union, it was believed by certain states that the Union had become inefficient and had not been able to work properly which slowed down the development of the country as a whole.

Conclusion

On analyzing different sources such as the Constituent Assembly debates and Reports of Sarkaria Commission and Punchhi Commission, it is now clear why the state leaders have not been satisfied with the distribution of powers in the three legislative lists. It is a multi-layered issue and there is no one reason which has led to the conflict. Undoubtedly, a strong centre is essential for the development and security of a country yet the federal principles underlying the Indian legal system have not been able to achieve great success since it has suppressed the states and their role in the economy. Though the above-mentioned reasons are not the only reasons but some of the major reasons as to why leaders have been reluctant in adopting a centralized nation. Therefore, the recommendations provided by the different committees need to be addressed so that the Centre and states work harmoniously and move towards cooperative federalism.

References


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