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July 18, 2000

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E-Mail this column to a friend Arvind Lavakare

CMs must do a stint in the federal library

That Farooq Abdullah's autonomy roar from Srinagar caused echoes elsewhere in the country is well known. Punjab, Assam and Tamil Nadu warmed up to the growl of Kashmir's Lion II; why, some politicians in Maharashtra too were aroused by it.

All that is known. What is unknown is what exactly these disgruntled chaps want when they bark for autonomy, more autonomy, regional autonomy.

Some indicators are, of course, available. Those handful in Maharashtra link more railway projects for the state with their autonomy demand. Punjab reportedly wants that the central government should fund a state's Plan schemes with a 70 per cent grant and 30 per cent loan instead of the present arrangement that goes the other way around. Tamil Nadu's demand seems to have an ethnic nexus stemming from the large local support for Eelam. And Assam's chief minister cries out that the states have been weakened by the "accumulation of virtually all powers at the Centre." This last belief has been reinforced by the Punjab chief minister's keenness to soon hold a convention of "federal minded" leaders urging for more power for the states and for "a true federal structure."

All this is confusing to the uninitiated. Indeed, even some otherwise intelligent people have stretched the concept of autonomy to believe that it is tied up with individual liberty and social justice. The time has probably come then to bare some basic facts of federalism and how it has operated in India.

The first fact is that the word "Federation" has not been used even once in the Constitution of India even after 79 amendments. Yet, the very nature of our Constitution is not unitary but a federal one. "The essence of federalism," observed the renowned Professor Alan Gledhill, "is the existence of a sphere in which units can exercise executive and legislative authority free of central control." According to Justice Dr A S Anand, our present Chief Justice, the pattern of the Indian Constitution answers to Gledhill's definition.

Justice Dr Anand supports the assertion of D D Basu, the famous constitutional authority, that "India has a federal structure with unitary features." He himself is on record that in India, "The Centre cannot encroach on upon the fields which are within the exclusive jurisdiction of the states" subject to exceptions specified by the Constitution itself and not by a whimsical Centre of the day. He believes that even as the country's courts have been given the duty of guarding the distribution scheme of powers, our Constitution embodies the principle that in spite of federalism the nation's interest ought to be paramount.

The second fact to be noted is the Indian Constitution seeks to create three functional areas: An exclusive area for the Centre, an exclusive area for the states and a common or concurrent area in which both the Centre and the states may operate simultaneously, subject to the overall supremacy of the Centre.

Article 246 (1) of our Constitution confers on Parliament an exclusive power to make laws in respect of 99 matters. Included in this Union List are defence of India, ports, railways, airways, post, telephone, telegraph, and regulation of such oil fields, river valleys and industries as are declared by Parliament to be expedient in the public interest.

Similarly, Article 246 (3) confers an exclusive power on the states to make laws on 61 matters. Included in this State List are 21 items for raising financial resources; notable among those are taxes on agricultural income, land revenue including assessment and collection, taxes on lands and buildings, estate and succession duties on agricultural land, excise duties on liquors and taxes on entry, sale and purchase of goods as well as on consumption or sale of electricity.

A unique feature of the Indian scheme of division of powers is the existence of a large concurrent field of 52 matters on which Article 246 (2) currently confers power of legislation on both the Centre and the states.

The general idea underlying the Concurrent List is that there may be subjects on which Parliament may not feel it necessary or expedient to initiate legislation in the first instance. A state may therefore make a law on a matter in that Concurrent List. However, if and when that matter assumes national importance, the Centre should have the room to step in and enact necessary legislation in order either to i. secure uniformity in the law throughout the country or ii. guide and encourage state effort or iii. provide remedies for mischief arising in the state sphere extending beyond its boundaries.

Examples of i. above the Indian Codes of Civil and Criminal Laws; labour legislation is evidence of ii. above and legislation for prevention/control of epidemic diseases is an illustration of iii. above. Conspicuously enough, the subject of "education" was on the exclusive State List since the adoption of our Constitution in 1950 before a Constitutional amendment shifted it to the Concurrent List with effect from January 3, 1977.

However, even when the Centre makes a law for the whole country on a matter in the Concurrent List, a state may also make supplementary laws on that matter to provide for special circumstances within the state. The Concurrent List thus makes the scheme of distribution of powers somewhat flexible. It permits of diversity along with a unity of approach.

While the separate jurisdiction of the Centre and the states are thus set out in black and white, a characteristic of our federal structure in actual operation is the doctrine of "pith and substance" established in the country to deal with controversies of determining whether a particular law relates to a particular subject mentioned in one List or the other of Article 246. Our courts have resolved the issue by looking to the substance of the subject rather than any incidental encroachment on it by another law. As the Supreme Court observed in 1989, "Entries in the legislative lists ůmust receive a liberal construction inspired by a broad and generous spirit and not in a narrow pedantic sense." (Ujagar Prints v Union of India reported in All India Reporter journal 1989 SC 516 para. 23).

Various court judgments have borne out this pragmatic, broad-minded approach. A really conspicuous one among them was the Supreme Court's verdict that even when Parliament makes a declaration that the control of a particular industry is expedient in the public interest (entry number 52 of the Union List), the state legislature retains its power to legislate in regard to the raw materials used in that industry. (Viswanathan v State of Karnataka, (1991) 3 SCC 358, para. 9).

There are, admittedly, a few provisions under our Constitution that prescribe the consent of the central executive before a Bill passed by the state legislature can become legally effective. Thus, a state can pass a law empowering it to acquire property bypassing the fundamental rights enshrined in Articles 14 and 19. But that Bill would require the President's assent before becoming law. Similarly, the President's nominee, the state governor, may refer to the President any state legislation that endangers the high court's constitutional status or one that imposes restrictions in public interest on the freedom of commerce, trade or intercourse with or within the state.

There are several instances where the central executive has had to put a hiatus on legislation passed by one state or the other. Two of them suffice to illustrate the rational for such action.

One of them happened in 1961 when the Centre refused assent to the Madhya Pradesh Panchayat Raj Bill, 1960, that provided for nominated village panchayats to be set up for a year. The Centre took the view that the system of nomination was a negation of the concept of panchayats.

The second, and typical, case was the Kerala legislature's Education Bill passed by it in 1957 to provide for the better organisation of educational institutions in the state. Its provisions raised a bitter public controversy in the state. The governor reserved the Bill under Article 200 for consideration of the President who, in turn, sought the advisory opinion of the Supreme Court under Article 143. The Supreme Court held that some of the provisions of the Bill offended Article 30 (1) that relates to the right of minorities to establish and administer educational institutions. Thereupon, the President returned the Bill to the state for necessary amendments in the light of the Supreme Court's opinion. Thus, the Constitutional provisions alone enabled the Centre to rise above partisan politics considering that the Central and state governments belonged to different political parties.

The above commentary hardly justifies the Assam chief minster's brazen accusation that the Centre has accumulated all the powers and weakened the states. Or would he want such authority as would enable his State to appropriate all of Assam's oil and gas reserves? And would Vaiko want the power for Tamil Nadu to carve out a pan-Dravidian sovereign peninsula? If these men have financial federalism and American federalism in mind, they have a lesson or two coming their way on that too.

Meanwhile, chief ministers from Srinagar and Anandpur down to Thiruvananthapuram would do well to digest at least a couple of the several treatises on Indian Constitutional law available in the Lok Sabha library -- a federal library.

Arvind Lavakare

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