Functions and Responsibilities of the Union and the States

The seventh schedule under Article 246 of the constitution deals with the division of powers between the union and the states.

It contains three lists- Union List, State List and Concurrent List.

• The union list details the subjects on which Parliament may make laws while the state list details those under the purview of state legislatures.
• The concurrent list on the other hand has subjects in which both Parliament and state legislatures have jurisdiction. However the Constitution provides federal supremacy to Parliament on concurrent list items in case of a conflict.

Evolution of 7^th Schedule

• The Parliament has exclusive powers to make laws with respect to any of the matters enumerated in the Union List. This list has at present 100 subjects (originally 97 subjects) like defence, banking, foreign affairs, currency, atomic energy, insurance, communication, interstate trade and commerce, census, audit and so on.
• The state legislature has “in normal circumstances” exclusive powers to make laws with respect to any of the matters enumerated in the State List. This has at present 61 subjects (originally 66 subjects) like public order, police, public health and sanitation, agriculture prisons, local government, fisheries, markets, theaters, gambling and so on.
• Both, the Parliament and state legislature can make laws with respect to any of the matters enumerated in the Concurrent List. This list has at present 52 subjects like criminal law and procedure, civil procedure, marriage and divorce, population control and family planning, electricity, labour welfare, economic and social planning, drugs, newspapers, books and printing press, and others.
• The 42nd Amendment Act of 1976 transferred five subjects to Concurrent List from State List, that is, (a) education, (b) forests, (c) weights and measures, (d) protection of wild animals and birds, and (e) administration of justice; constitution and organisation of all courts except the Supreme Court and the high courts.
• Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a state even though that matter is one which is enumerated in the State List. This provision has reference to the Union Territories or the Acquired Territories (if any).
• The 101st Amendment Act of 2018 has made a special provision with respect to goods and services tax. The Parliament and the state legislature have power to make laws with respect to goods and services tax imposed by the Union or by the State. Further, the parliament has exclusive power to make laws with respect to goods and services tax where the supply of goods or services or both takes place in the course of inter-state trade or commerce.
• The power to make laws with respect to residuary, subjects (i.e. the matters which are not enumerated II any of the three lists) is vested in the Parliament. This residuary power of legislation includes the power to levy residuary taxes.
• From the above scheme. it is clear that the matters of national importance and the matters which require uniformity of legislation nationwide are included in the Union List The matters of regional and local importance and the matters which permit diversity of interest are specified and the State List. The matters on which uniformity of legislation throughout the country is desirable but not essential are enumerated in the concurrent list. Thus, It permits diversity along with uniformity.
• In US, the powers of the Federal Government are enumerated in the Constitution and the residuary powers are left to the states. The Australian Constitution followed the American pattern of single enumeration of powers. In Canada, on the other hand, there is a double enumeration— Federal and Provincial, and the residuary powers are vested in the Centre. The Government of India Act of 1935 provided for a three-fold enumeration. viz.. federal provincial and concurrent.
• The present Constitution follows the scheme of this act but with one difference that is under this act the residuary powers were given neither to the federal legislature nor to the provincial legislature but to the governor-general of India. In this respect. India follows the Canadian precedent
• The Constitution expressly secures the predominance of the Union List over the State List and the Concurrent List and that of the Concurrent List over the State List.
• Thus, in case of overlapping between the Union List and the State List, the former should prevail. In case of overlapping between the Union List and the Concurrent List it is again the former which should prevail. Where there is a conflict between the Concurrent List and the State List it is the former that should prevail.
• In case of a conflict between the Central law and the state law on a subject enumerated in the Concurrent List the Central law prevails over the state law. But, there is an exception. If the state law has been reserved for the consideration of the president and has received his assent, then the state law prevails in that state. But, it would still be competent for the Parliament to override such a law by subsequently making a law on the same matter
• The 1983 Sarkaria Commission essentially blessed the status quo: “After a careful analysis and examination of the entries in the concurrent list, we have come to the conclusion that a good enough case does not exist for amending the Constitution to transfer any entry in the concurrent list to the state list.” But it did concede that before legislating on items in the concurrent list, the Union government should consult the states.
• Roughly 20 years down the line from 1983, nothing changed. In 2002, the National Commission to Review the Working of the Constitution (Venkatachaliah Commission) submitted its report, and said: “There is, however, no formal institutional structure that requires mandatory consultation between the Union and the states in the area of legislation under the concurrent list.”

Need to relook and revise the Seventh Schedule:

• Over time, many constitutional amendments have led to changes in the Seventh Schedule. An item from the state list moving to the concurrent list, or an item from the concurrent list moving to the Union list, represents centralization
• The 1976 amendment was a clear push towards centralization. Thus, amendments to the Seventh Schedule since 1950 have reinforced centralization, and not neutralized that trend
• The 1971 report of Rajamannar Committee, formally known as Centre-State Relations Inquiry Committee, put it thus: “The Committee is of the opinion that it is desirable to constitute a High Power Commission, consisting of eminent lawyers and jurists and elderly statesmen with administrative experience to examine the entries of Lists I and III in the Seventh Schedule to the Constitution and suggest redistribution of the entries.
• Most people will agree India’s administrative and governance template needs greater decentralization. The substantive point is about a re-look at the Seventh Schedule.
• There are pending reforms pertain to factor markets—land, labour, natural resources. In a heterogeneous country, the labour conditions are not uniform across the states. In global negotiations, it is often argued that country at different levels of development value labour, or the environment, differently. That logic should also apply to the states, which are at different levels of development. Hence, should labour be on the concurrent list, or should be moved to the state list
• Commissions that delved into Union-state relations have typically focused on other matters (such as Article 356), treating the Seventh Schedule in passing. The Seventh Schedule deserves independent scrutiny, asking questions on the basis of first principles.

Introduction:

A federal government is one in which powers are divided between the national government and the regional governments by the Constitution itself and both operate in their respective jurisdictions

The federal features of the Constitution of India are:

• Dual Polity: The Constitution establishes a dual polity consisting the Union at the Centre and the states at the periphery. Each is endowed with sovereign powers to be exercised in the field assigned to them respectively by the Constitution
• Written Constitution: It specifies the structure, organisation, powers and functions of both the Central and state governments and prescribes the limits within which they must operate. Thus, it avoids the misunderstandings and disagreements between the two
• Division of Powers: The Constitution divided the powers between the Centre and the states in terms of the Union List, State List and Concurrent List in the Seventh Schedule
• Supremacy of the Constitution
• The Constitution is the supreme (or the highest) law of the land. The laws enacted by the Centre and the states must confirm to its provisions.
• Thus, the organs of the government (legislative, executive and judicial) at both the levels must operate within the jurisdiction prescribed by the Constitution
• Independent Judiciary: The Constitution establishes an independent judiciary headed by the Supreme Court to settle the disputes between the Centre and the states or between the states

However, the India federal system of government has a power tilt towards the centre:

Strong Centre

• • The division of powers is in favor of the Centre AS:
  • The Union List contains more subjects than the State List
  • The more important subjects have been included in the Union List
  • The Centre has overriding authority over the Concurrent List.
  • Finally, the residuary powers have also been left with the Centre

States Not Indestructible

The states in India have no right to territorial integrity. The Parliament can by unilateral action change the area, boundaries or name of any state

Flexibility of the Constitution

• • The bulk of the Constitution can be amended by the unilateral action of the Parliament, either by simple majority or by special majority
  • Further, the power to initiate an amendment to the Constitution lies only with the Centre

No Equality of State Representation

The states are given representation in the Rajya Sabha on the basis of population.

Emergency Provisions

During an emergency, the Central government becomes all powerful and the states go into the total control of the Centre. It converts the federal structure into a unitary one without a formal amendment of the Constitution

Parliament’s Authority Over State List

• • The Parliament is empowered to legislate on any subject of the State List if Rajya Sabha passes a resolution to that effect in the national Interest
  • This means that the legislative competence of the Parliament can be extended without amending the Constitution

Veto Over State Bills

The governor is empowered to reserve certain types of bills passed by the state legislature for the consideration of the President. The President can withhold his assent to such bills not only in the first instance but also in the second instance