RSTV: THE BIG PICTURE- CHALLENGES FOR FEDERAL STRUCTURE
Introduction:
Instances of tussle between the agencies of central government and the state governments are known. IT raids at the offices and residence of aides of Madhya Pradesh Chief Minister which saw run-in between the CRPF officers and the state police officers. Such instances were also witnessed in West Bengal, Karnataka and Andhra Pradesh as well where the central agencies proceeded with corruption or irregularity probes. The central agencies are formed in a federal structure and have primarily the responsibility of probing issues against government staff and serious cases referred to it by courts or by the state governments itself. Besides the cases of corruption probe, another subject which raises the issue of a federal structure are statements made by the leaders of Jammu and Kashmir centric parties on Article 370.
Federalism is a system of government in which powers have been divided between the centre and its constituent parts such as provinces or states. Unlike a unitary state, sovereignty is constitutionally split between at least two territorial levels so that units at each level have final authority and can act independently of the others in some area. The constituent units possess certain level of autonomy depending on type of federation. There are two types of federations:
(1) Holding together federation: In this form of federation, the powers are shared among various social groups/constituent parts to accomodate the diversity present in the society. In this type of federation, the powers are somewhat tilted towards the central authority. India, Spain, Belgium etc follow this form of federalism.
(2) Coming together federation: In this form of federation, the independent states come together to form a bigger unit and sacrifice some of their powers to be enjoyed by the central authority. The states here enjoy more autonomy as compared to the states in “holding together federation” system. Countries such as the USA, Switzerland, Australia follow this form of federalism.
The features of federal system include governments atleast at two levels, division of powers between different levels of the government, rigidity of constitution, independent judiciary, bicameralism, dual citizenship etc.
Indian Model of Federalism
The Government of India Act, 1919 introduced the concept of division of powers between the centre and the provincial legislatures by separating the central and provincial subjects. For the first time, it introduced bicameralism consisting of an Upper House and Lower House. The Constitution of does not mention India as a ‘federation’ but ‘Union of states’. Below are the features of the federalism followed in India:
(1) Supremacy of the constitution: Constitution is the supreme law in India. The constitution is regarded as the guide in framing policies of the government. It lays out the ideas and philosphy of the constitution framers. It secures the right of the citizens.
(2) Written constitution: India has the lengthiest written constitution in the whole world. The provisions of the constitution of India have been drawn from various sources. Indian constitution is a blend of rigidity and flexibity.
3) Vertical power sharing: The Constitution has divided the powers between the Union and the States. It helps in accomodating diversity of the country. It enables the state governments to take decision with flexibility according to the local needs. The powers in India have been, to some level, tilted towards the centre.
(4) Horizontal power sharing: India has three wings of the government- Legislature, Executive and Judiciary. Unlike USA, in India political executive is a part of the legislature.
(5) Bicameralism: The Parliament of India has two houses – Lok Sabha and Rajya Sabha. Most of the states in India do not have bicameral legislature.
(6) Independent judiciary: The Indian constitution provides for an independent and an integrated judicial system. The lower courts and the district courts are at the local level, high courts at the state level and the Supreme court is the highest court of the country. All the courts in India are subordinate to the Supreme Court.
Reasons for tussles:
- For a country like India which is divided on the linguistic and communal basis, a pure federal structure could lead to disruption and division of states.
- Treating the state as their own fiefdom.
- Central agencies like CBI, IT working under the pressure.
Judicial Character of Federalism in India:
- The Indian judiciary has heard a number of cases involving the issue of the federal character of the Indian constitution.
- The first significant case where this issue was discussed at length by the apex Court was State of West Bengal V. Union of India.
- The apex court held that the Constitution of India is not truly Federal in character.
- State of Karnataka v. Union of India – The Indian Constitution is not federal in character but has been characterized as quasi-federal in nature.
- Kesavananda Bharati v. State of Kerala – federalism to be a part of the basic structure of the constitution which means it can’t be tampered with.
What is the ambit of Central agencies?
- The jurisdiction of central agencies when it comes to these issues is also crystal clear. And any interference or use of state instrumentalities or state agencies to prevent them from doing their job is a violation of fundamental legal principles and creates a law and order issue.
- Central agencies and state agencies are answerable only to the law and no one else, regardless of who is at the top. Therefore this is not something that highlights a problem with the federal structure- however, this shows a wilful, brazen flouting of the federal structure.
- When it is understood or it becomes absolutely clear that the ramification of a certain issue goes beyond a particular state, by default or at least as a part of practice, such matters end up before the Central Bureau of Investigation. In fact, in quite a few instances, if an investigation starts at a state government or within the territory of a particular state and then they realize that this goes much beyond a particular state, and could have nationwide ramifications, then such a matter is referred to the CBI. Or, if it otherwise has an implication of national importance, then it is referred to the CBI.
- Law and order cannot take the back seat just because elections are going on. The sanctity of the elections is understood, but that does not necessarily mean that every other process be in a state of suspended animation. The agencies have to do their jobs.
- The institutions must be allowed to do their job
Way Forward:
- We need to strike a balance between both unitary and federal features of the country.
- States should be autonomous in their own sphere but they can’t be wholly independent to avoid a state of tyranny in the nation.
- Long-term solution is to foster genuine fiscal federalism where states largely raise their own revenue.
- Creating a fiscal structure where the states have greater revenue-raising authority, as well as greater decision making power on spending.
- India needs to move away from centralization-decentralization thinking, and embrace genuine fiscal federalism by permanently creating a fiscal power centre in the states.
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