[Editorial Analysis] Spirit of federalism lies in consultation

Mains Paper 2: Polity
Prelims level: federalism
Mains level: Issues and challenges pertaining to the federal structure

Context:

• Kerala Chief Minister Pinarayi Vijayan stated that it is not in the essence of federalism for the Union government to legislate unilaterally, avoiding discussions with the States on the subjects in the Concurrent List.

• Tamil Nadu Chief Minister M.K. Stalin raised the issue by calling on other Chief Ministers against the Union government usurping powers under the State and Concurrent Lists.

• The Kerala Legislative Assembly unanimously passed a resolution against the Electricity (Amendment) Bill, 2020, while the Tamil Nadu Legislative Assembly passed a resolution against the controversial farm laws.

Practice of no consultation with States:

• Passage of Farm laws: The laws, essentially related to Entry 14 (agriculture clause) belonging to the State List, were purportedly passed by Parliament citing Entry 33 (trade and commerce clause) in the Concurrent List.

• Against Decisions of the Supreme Court: State of Bombay vs F.N. Balsara case says that if an enactment falls within one of the matters assigned to the State List and reconciliation is not possible with any entry in the Concurrent or Union List after employing the doctrine of “pith and substance”, the legislative domain of the State Legislature must prevail.

• ‘Redundancy of local laws’: When the Major Ports Authorities Act, 2021, was passed by Parliament earlier this year, Goa objected to the law, stating that it would lead to the redundancy of the local laws, including the Goa Town and Country Planning Act, the Goa Municipalities Act, the Goa Panchayat Raj Act, the Goa Land Development and Building Construction Regulations, 2010, and the Goa Land Revenue Code.

• Constitution: Non-Major ports are related to Entry 31 of the Concurrent List. According to the Indian Ports Act, 1908, which presently governs the field related to non-major ports, the power to regulate and control the minor ports remained with the State governments.

• Transfer of powers related to planning, developing and regulating the non-major ports to the Maritime State Development Council (MSDC), which is overwhelmingly controlled by the Union government. Coastal States like Odisha, Andhra Pradesh, Tamil Nadu and Kerala have objected to the Bill that proposes to seize the power of the State government with respect to non-major ports.

• Electricity amendment Bill: Various States like West Bengal, Tamil Nadu and Kerala have also come forward against the Electricity (Amendment) Bill, 2020.

• Constitution: Electricity is related to Entry 38 of the Concurrent List. The power to regulate the sector was vested with the State Electricity Regulatory Commissions (SERCs), which were ostensibly manned by individuals appointed by the State government.

• Issue of Appointment to SERCs: However, the proposed amendment seeks to change the regulatory regime from head-to-toe with the establishment of a National Selection Committee, dominated by members nominated by the Union government that will make appointments to the SERCs.

• Establishment of a Centrally-appointed Electricity Contract Enforcement Authority (ECEA) as the sole authority having jurisdiction over matters regarding the performance of obligations under a contract related to the sale, purchase or transmission of electricity.

• Taking away State’s power to regulate: This is apart from other proposed changes, including changing the licensing regime to facilitate private sector entry without State government approval.

Cause of concern:

• Balance of Constitution ignored: The model envisioned in the Government of India Act, 1935, was adopted by the framers of the Constitution and certain subjects were put in the Concurrent List by giving the Union and the State Legislatures concurrent powers regarding them.

• Logic Behind Concurrent List: The fields in the Concurrent List were to be of common interest to the Union and the States, and the power to legislate on these subjects to be shared with the Union so that there would be uniformity in law across the country.

• Fear of Constituent Assembly member K.T.M. Ahmad Ibrahim Sahib Bahadur: subjects in the Concurrent List being transferred to the Union List over a period of time due to the Union government’s high-handedness.

Way forward:

• Sarkaria Commission Report:

1. There should be a “coordination of policy and action in all areas of concurrent or overlapping jurisdiction through a process of mutual consultation and cooperation is, therefore, a prerequisite of smooth and harmonious working of the dual system”.

2. The Union government, while exercising powers under the Concurrent List, limit itself to the purpose of ensuring uniformity in basic issues of national policy and not more.

• The National Commission to Review the Working of the Constitution (NCRWC), or the Venkatachaliah Commission: individual and collective consultation with the States should be undertaken through the Inter-State Council established under Article 263 of the Constitution.

• The SC in S.R. Bommai vs Union of India case: The States are not mere appendages of the Union. The Union government should ensure that the power of the States is not trampled with.

Conclusion:

• The intention of the framers of the Constitution is to ensure that public welfare is subserved and the key to that lies in listening to stakeholders.

• The essence of cooperative federalism lies in consultation and dialogue, and unilateral legislation without taking the States into confidence will lead to more protests on the streets.

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Prelims Questions:

Q.1) With reference to the Constitution of India, consider the following statements:

1. Articles 15 prohibits discrimination on the grounds of religion, race, caste, sex or place of birth.

2. Article 25 guarantees all persons the freedom of conscience and the right to preach, practice and propagate any religion of their choice.

Which of the statements given above is/are correct?
(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1 nor 2

Answer: C

Mains Questions:

Q.1) Unilateral legislation without taking States into confidence will see more protests on the streets. Hence, the centre needs to remember that the spirit of federalism lies in consultation. Critically evaluate.

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