This article has been written by Raslin Saluja, from KIIT School of Law, Bhubaneswar. This article elaborates on the change in underlying conditions of cooperative federalism in our Constitution and how it has paved the way for the rise of coercive federalism.
Table of Contents
Introduction
The debate between cooperative federalism and coercive federalism has been age-old. It is certain that we must always remember that India is the Union of states and it will prosper only if all its states prosper. If there is a conflict between the union and the states, the strong foundations of federalism and democracy on which our country is built will start to collapse. Cooperative federalism is important as it brings together the governments of the centre, state, and local levels to coordinate and cooperate in upholding the tenets of democracy and provide effective solutions to deeply ingrained issues like poverty, inequality, social backwardness, discrimination, etc. However, with time and the working of the successive governments, centres’ domination over policymaking, problems of decentralization, demands for autonomy, and statehood have arisen. It has often been argued that coercive federalism is taking over cooperative federalism which has become a cause for concern. Thus, in this article, we analyze the factors behind this phenomenon and potential solutions to it.
Federalism
To put it simply, the concept of federalism states that once a law has been made and passed by the Central government, the State governments are to shoulder the responsibility of its implementation in accordance with the social, economic, and political settings in the society. It encompasses in it the working of local autonomy while delivering to the wide range of diverging common interests. The idea caters remarkably to the Indian situation due to the existence of a wide variety of people belonging to diverse backgrounds following different cultures, faith, and beliefs.
Federal Constitutions essentially entail the division of power in order to avoid conflict between the union and the state governments in dispensing their duties. We find that in execution through the various items listed in the 3 lists of Schedule VII of the Constitution. The three legislative lists vest the power of the parliament and the State and both of them concurrently make laws on their respective subjects. Further, any matter not enumerated in either of the lists falls under the scope of the Union. To that end, the judiciary acts as an independent institution in guarding and upholding the federal structure of the Constitution.
Cooperative federalism
It is a horizontal relationship shared between the union and the states where neither is above the other. This has been engrained through various aspects of our Indian Constitution. Be it VII Schedule and Article 249 or the All India Services to provide uniting forces through Article 312. Another such instance is reflected in the establishment of five Zonal Councils under the States Reorganization Act of 1956. It is further supported by the formation of an inter-state council under Article 263 to draw a parallel between the common interests of both: the union and the states. The concept of cooperation is also highlighted under Article 261 wherein full faith and credit is to be given to the public act, records, and judicial proceedings of both, Union and the States.
Coercive federalism
It is a form of federalism in which the federal government pressures the states to change their policies by using regulations, mandates, and conditions (often involving threats to withdraw federal funding). Coercion also exists in the form of federal preemptions, impositions of national priorities on the states through national legislation that is based on the Constitution’s supremacy clause.
Judicial Trends
Though there have been various judgments on federalism by the judiciary, its stand remains inconsistent.
In the 1962 case of Automobile Transport v. the State of Rajasthan, wherein the apex court interpreted the effect of Article 301 observed that the structure of federalism is an essential feature to be kept in mind while interpreting the Constitution. While in the State of West Bengal v. Union of India, the majority judgment took a disappointing stand in regard to federalism by not considering the Indian Constitution as federal. Later, in the Kesavananda Bharati judgment of 1973, federalism was said to be a basic feature of our constitution. Still, considering the progress and development of the country and the uneven distribution of powers on part of the Union, certain judgments did not favor the federal structure of the Indian constitution.
Again, in the case of Kuldip Nayar v. Union of India, which revolved around the amendment made in 2003 in the Representation of the People Act, 1951, the Court held that India is a federal state. In 2010, where federalism was challenged on the grounds that CBI is a central agency and, therefore, cannot investigate without the consent of the state despite the High Court’s order to CBI for investigation.
It was held that any power exercised under Articles 226/32 to maintain the law cannot violate the federal structure. The Court further emphasized the need for the Union and the States to work in collaboration and cooperation while adjudicating the Delhi pollution case. In-State Bank of India v. Santosh Gupta, the Court opined that the federal structure of the Indian Constitution is largely reflected in Part XI. Certain other observations on the need to maintain the federal character of the Indian constitution were observed in UCO Bank v. Dipak Debbarma.
Thus, even though there exists federal supremacy, the state has its autonomy within the allotted sphere. This balance has to be maintained by exercising cooperative federalism and non-transgression of the Union beyond its limits. Back in 2016, a decision of the Delhi High Court was challenged which stated the Lieutenant Governor to be the administrative head with complete control of the NCT Delhi. Though at the moment, the apex court reversed the stance and stated that the LG cannot interfere in all the matters of the Delhi Government, very recently a Bill was passed making the LG take full control of Delhi and the Chief Minister to seek the LG’s opinion before taking any executive action in any matter. This coupled with many other such incidents considerably seem to give rise to coercive federalism.
Underlying conditions
The Indian Constitution has been previously criticized in terms of the lack of certain essential features of federalism like the rights of the states to make their own constitution and dual citizenship. Time and again the federal nature has been doubted due to the presence of certain elements which deviate from the requirements of such character. The following points hint towards the features of the Indian Constitution which do not conform to the standards of cooperative federalism:
- Uneven distribution of power between Union and State in the three lists with all the important subjects placed in Union List or Concurrent List.
- Power of Parliament to modify the areas, names, or boundaries of state under Article 3.
- Power of Parliament during an emergency to enact laws under State list upon resolution under Articles 250, 352 and 356, 249 and power of the Union to prevail over states during inconsistency under Article 251.
- Power of the Parliament to implement any international agreement, treaty, and convention under Article 253.
- Power of Union to prevail in case of repugnancy in a matter of concurrent list under Article 254.
- Governor’s power to reserve a Bill passed by the state in order to get the President’s assent under Article 200 and executive powers of the Union to empower Union officers and direct to execute matters under List II as under Article 256.
- We also find fiscal federalism in taxation-related measures, but more powers are vested in the Centre for determining the state’s share in tax revenue and imposing the tax.
- The states also have no role in amending process of the constitution other than ratification by one-half of the states in case of some amendments.
Thus, despite the presence of features such as the duality of governments, distribution of powers between the Union and the state governments, the supremacy of the constitution, the existence of a written constitution, and independent judiciary which conform to the federal character, there is a deviation from the general notion.
Challenges to cooperative federalism
Regionalism
We witness many demands of formation of different states or neglect faced by people belonging to the southern part of the country. The history goes way back into the times of British Rule who had a differential attitude completely neglecting certain regions. This was further carried on with the Indian National Movement and certain regional movements like the Dravidian Movement of the 1940s or the Non-Brahmin movement that started in the present-day Tamil Nadu. Which later led to the formation of a separate and independent Tamil Nadu as a result of these movements.
Language conflict
Different regional languages of different states create communication gaps and hinder the understanding capability. We have 22 languages enumerated as the official language. A recent controversy regarding a draft of the National Education Policy and its recommendation on the three-language formula and mandatory Hindi teaching in schools sparked public and political outrage in Tamil Nadu and some other states. As per the policy, children were to learn three languages right from the foundational stage in order to support the idea of a multilingual country.
The indestructible union and the destructible states
Where the union remains indestructible, it is the power of the Parliament with the consent of states to divide or merge them. However, Telangana was formed after the division of Andhra Pradesh without the consent of the State legislature. It was done in face of public opposition and without any negotiated settlement.
Others
Other challenges include the role of the Governor as the representative of the central government, which has always been a controversial topic as explained in the aforementioned cases. The non-participation of the states in the economic and social planning under concurrent list. The exercise of the Union’s authority over the central and regional planning through NITI Aayog and other legislative conflicts. The centrally sponsored schemes have replaced the dialogue of the states. And finally, the CBI fiasco as investigation falls under Union list but police is a state subject and the frequent accusation of CBI being Centre’s tool to harass state governments.
How cooperative federalism is being replaced by coercive federalism
It’s been a while since some experts argue that cooperative federalism is slowly being replaced by coercive federalism by increasing the centre’s dominance in policymaking over the states. Some of the instances are mentioned below:
- In terms of fiscal federalism, finance has always been a debatable topic. Right from the criticism faced by the 15th Finance Commission for using the 2011 Census instead of the 1971 census and the 14th Finance Commission stating the Rashtriya Suraksha Nidhi not be from the Consolidated Fund of India but rather by the states under the subject of security and defense has shown the opposing idea of the centre towards cooperative federalism. Similarly, the neutralization of the namesake State tax revenues increased from 32% to 42%, by cutting the share of centre in centre sponsored schemes.
- Even the decision of the demonetization was not taken with state governments consideration due to which the states suffered a severe setback. The recommendations of the Finance Commission are not open to suggestions of states and are placed only before the Parliament. There is no provision that addresses the state’s grievance to challenge the report of the Finance Commission.
- And to top it all was the introduction of the 101st Amendment, wherein on one hand the power of states to levy indirect taxes (like octroi, entry tax, luxury, and entertainment taxes, etc) was taken away and on the other, the centre was given the dominant position in the GST council decision-making process. As for taxation issues, the Central Government is supported by express provisions whereas states have no provisions at their disposal.
- Under coercive political federalism, one of the recent instances we find was in the Maharashtra state election. A state emergency was imposed an hour before the deadline following its revocation an hour before a minority government was formed by the Governor despite having an adequate alliance.
- Another unfortunate occurrence lies in the trading of MLA’s in the states of Madhya Pradesh, Karnataka, and now in Rajasthan. Further, the concept of ‘One Nation One Election’ which has the tendency of overshadowing the issues of the states also seems as a centralizing idea in case the same political party comes into power in both the Centre and a majority of the States. Issues of deploying paramilitary forces in states without any permit. We also have seen instances of making inquiries against chief ministers for personal agendas and settlements.
- Finally, we see the deep-rooted coercive federalism spread even in the administrative federalism wherein the complaints filed by the citizens in Swachh Bharat Abhiyaan application get registered directly under the cell which is in control of the Union Ministry of Housing and Urban affairs. Further, in matters of special status to Jammu & Kashmir which was taken away while under the President’s rule and Article 370 being rendered ineffective also shows us the deviation from cooperative federalism.
- Among other instances, we find Niti Aayog as mentioned earlier, which has replaced the Planning Commission and majorly caters to the Centre’s whims and fancies. Even so far the office of Governor is concerned, states get no role in the appointment and transfer of governors. Some media reports also shed light on the misuse of the governor’s office post-election.
Way forward
- States should be granted powers to exercise their rights as per the Constitution. The Union must interfere only in those extreme cases where states are unable to handle the circumstances and require a national approach for the greater good. It could be in subject matters like that of defense, communication, foreign policy, and the like, as suggested by the Sarkaria and Punchi commissions.
- In the matters of states list, the union government before taking action must compulsorily consult and involve the state authorities.
- Efficient use of Inter-state councils and zonal councils is also proposed for making inquiries on disputes and providing advice on the commonly shared subject matters for better policy coordination and implementation.
- To provide states with a role in the appointment and removal of the governor.
- Contentious issues with the potential of creating conflicts like land, labor, and natural resources must be left to individual states to enable a greater inflow of investment and economic activity.
- Efficiently involve states’ participation in the functioning of think tanks like Niti Aayog and increase the fund devolution to states by the Centre in reference to 15th Finance Commission.
- Encourage healthy competition among the states and involve them in matters concerning international treaties, conventions, obligations for practical decision making.
Conclusion
Thus there can be various reasons for the steady transition of cooperative federalism to coercive federalism like the difference in ideologies, presence of Union government machinery in a region, the strategic location of States such as West Bengal and Northeast, and societal development status in a region. As and when the issues transgress, we often find the Centre getting involved. This might prove beneficial for the time being, however, it might decay the Centre-State relations in the long run. Hence, there is a need for proper renegotiation so that the fabric of cooperative federalism does not get torn.
References
[1] AIR 1962 SC 1406. [2] AIR 1963 SC 1241 [3] AIR 1973 SC 1461 [4] State of Rajasthan V Union of India AIR 1977 SC 1361, State of Karnataka v Union of India AIR 1978 SC 68. [5] AIR 2006 SC 3127. [6] State of West Bengal v. The Committee for Protection of Democratic Rights, West Bengal AIR 2010 SC 1476. [7] M.C Mehta v Union (2015) SCC Online SC 1327. [8] 2016 [9] (2017) 2 SCC 585 [10] NCT of Delhi v Union of India (2018) 8 SCC 501. [11] Jayaprakash Narayan, “A Challenge to Indian Federalism” The Hindu, Oct. 28, 2013. [12]https://www.thehindubusinessline.com/opinion/columns/c-p-chandrasekhar/co-operative-federalism-has-given-way-to-coercive-federalism/article33661082.ece [13]https://www.financialexpress.com/opinion/indias-eroding-cooperative-federalism/1807060/ [14]https://www.firstpost.com/india/centres-adoption-of-coercive-federalism-over-co-operation-with-states-has-hampered-response-to-covid-19-migrant-crisis-8376701.htmlLawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
