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India takes great pride in describing itself as the world’s largest democracy. However, this democracy is meaningful significantly because it is encapsulated in a federal structure. While democracy represents the majority opinion, federalism accommodates and links it to the voice of the minority, lending a flavour of social justice. This ensures harmonious functioning of the entire system.
Federalism and cultural and ethnic pluralism have given the country’s political system great flexibility, and therefore the capacity to withstand stress through accommodation. However, continuation of the same requires not simply federalism, but cooperative and constructive federalism.
The Judiciary has used numerous phrases to describe this concept of cooperative federalism, though all of them, in essence, have the same meaning.
In State of Rajasthan v UOI, 1977 , it was quoted that according to Granville Austin, the Constitution of India was perhaps the first constituent body to embrace from the start what A.H. Birch and others have called “cooperative federalism”. Chief Justice Beg called the Constitution ‘amphibian’,”....If then our Constitution creates a Central Government which is ‘amphibian’, in the sense that it can move either on the federal or on the unitary plane, according to the needs of the situation and circumstances of a case...”.
In S.R. Bommai v Union of India , the phrase “pragmatic federalism” was used. In the words of Justice Ahmadi, “....It would thus seem that the Indian Constitution has, in it, not only features of a pragmatic federalism which, while distributing legislative powers and indicating the spheres of governmental powers of State and Central Governments, is overlaid by strong unitary features...”
In State of Haryana v State of Punjab, “semi federal” was used. And in Shamsher Singh v State of Punjab , the Constitution was called ‘more unitary than federal’.
Historical Roots of Cooperative Federalism
Since the ancient period, kingdoms or empires that have ruled over the Indian subcontinent have practiced federal policies because in all the internal affairs, the chieftain and his vassal state was left very much alone. This policy of non-intervention in local affairs was a practical necessity because natural diversities of the people of the subcontinent were so great that that they could only be made a part of a single empire if no or very little effort was made to impose a common set of beliefs.
The disintegration of the Mauryas and the Mughals is partly attributed to the fact that monarchs like Jehangir and Aurangzeb did not pay sufficient heed to this dictum and tried to impose codes of behaviour that offended many of their subjects. Hence after the Revolt of 1857, when the British decided to leave the Indian Princes alone and withdrew their interventionist measures like Doctrine of Lapse and banned use of greased cartridges of animal fat, the British were simply confirming to a pattern of Government that was already ages old. Further, the spirit of cooperative federalism was a significant contributor to Sir Vallabhai Patel’s method of political mobilisation by which he could successfully persuade and cajole some 492 princely states to join the Indian Union while simultaneously maintaining the unity of the nation.
Seeds of cooperative federalism can be traced right from the Regulating Act of 1773 which set up a system whereby the British Government supervised (regulated) the work of the East India Company but did not take power for itself. The Government of India Act, 1919 provided for a federal India, however superficial, by envisaging a dual form of government called ‘dyarchy’. The Report of the Indian Statutory Commission of 1929 gave a federal solution by proposing to introduce dyarchy at the centre and to advance from diarchy to fully responsible government in the provinces. The same was sought to be achieved by the Government of India Act, 1935. In 1937, after a great deal of confrontation, Provincial Autonomy commenced. From that point until the declaration of war in 1939, Lord Linlithgow tirelessly tried to get enough of the Princes to accede to launch the Federation. The Cabinet Mission of 1946 provided that Union of India should deal with Foreign Affairs, Defence and Communication and all subjects other than Union subjects and all residuary powers were to vest in the Provinces.
Jawaharlal Nehru, while moving his Objectives Resolution on 13 December, 1946, reiterated that the need for a measure of uniformity in regard to apparatus and machinery of government at the Central level was to be considered in “cooperation and consultation with the states”, and that “all power and authority of the Sovereign Independent India, its constituent parts and organs of government, are derived from the people”.
The Constituent Assembly members did a commendable job by envisaging a cooperative federalism set up because in the turbulent and bloody circumstances prevailing at that time and in the wake of India’s partition, it could have been very easy to swing towards at least a highly centralised federation, if not unitary, in place of a quasi federation, as the latter is much more difficult to work out, demanding a lot of ground work, time, draftsmanship as well as ‘vision’ which could foresee that only a cooperative federal set up could ensure that the needs of security, defence, urge for a welfare state and meeting the situation of economic crisis are catered to along with addressing the demands of the country’s constituent states, as a result of which India as a nation would last. Hence, even though federal character seemed to be a practical imperative by reason of India’s sheer size and diversity, yet this assumption should not be taken for granted.
In fact, the strong central bias in the constitution has been a boon to keep India together at the most crucial time of its birth when forces of communalism, separatism and linguism were rampant.
Development of Cooperative Federalism Post Independence
The changing dynamics and the varied experiences that the Indian State has had - one party rule, coalition and the not so united forms, have led to the shift from Centralist to Federalist to Centre- Federalist forms of federal governance. The rise of regional parties, the formation of coalition Governments, active role of the Judiciary, the shift from the Right to the Left to the current trough of the Left, have shaped the trajectory of federalism by swinging the pendulum from cooperative to confrontationist and vice versa.
In the words of Chief Justice Beg in State of Rajasthan v Union of India, .....A conspectus of the provisions of our Constitution will indicate that, whatever appearance of a federal structure our Constitution may have, its operations are certainly, judged both by the contents of power which a number of provisions carry with them and the use that has been made of them.
Cooperative In The 1950s
The first fifteen years after independence under Nehru were marked by a democratically elected regime with a comfortable majority coupled with idealism and freshness of hope having just gained independence.
The States Reorganisation Act, 1956 under Nehru, creating linguistic states, fulfilled a demand that was being made vociferously and was a victory of popular will. Five Zonal Councils were set up vide Part-III of the States Re-organisation Act, 1956 with the object, in Nehru’s own words, to “develop the habit of cooperative working”. The Zonal Councils have so far met 105 times since their inception but have not been adequately utilised.
Nehru’s period also saw the creation of other significant institutions of inter-governmental cooperation. The Planning Commission was set up by a Resolution of the Government of India in March 1950 to promote a rapid rise in the standard of living of the people by efficient exploitation of the resources of the country. It is not a constitutional body. It works under the overall guidance of the National Development Council. With the emergence of severe constraints on available budgetary resources, the resource allocation system between the States and Ministries of the Central Government is under strain. This requires the Planning Commission to play a mediatory and facilitating role, keeping in view the best interest of all concerned. The central grants recommended by the Planning Commission are discretionary and this amounts to nearly 70% of the grants received by the states governments, the rest 30% being from the Finance Commission which is a constitutional body created under Article 280.
The National Development Council was created in 1952 by an executive order with the aim to impart national character to the entire process of planning. Its first substantive meeting was held in 1967 after almost half the larger states passed into the hands of the opposition.
In 1966, the Santhanam Committee on Prevention of Corruption was the first to bring possession of unexplained disproportionate assets within the ambit of corruption and to enunciate that the abuse and misuse of power for self-aggrandisement by the political executive was to be blamed for the prevalence of corruption at all other levels. The setting up of vigilance departments presided over by a Chief Vigilance Officer in every Ministry and Public Sector Undertaking, and the constitution of the Chief Vigilance Commission in 1964 as a pivotal authority to monitor the progress of vigilance cases, are the direct outcome of its recommendations. The latter was accorded statutory status in 2003, consequent upon the judgement of the Hon’ble Supreme Court in Vineet Narain v. Union of India , through the Central Vigilance Commission Act, 2003.
In 1967, a Study Team on Centre-State relations, appointed by the First Administrative Reforms Commission (ARC), gave the first model for an active Inter State Council (ISC). It viewed the ISC as a single administrative apparatus that would replace the then existing adhoc inter-governmental bodies permanently. Thereafter, the First ARC on Centre State relations submitted its report in 1969 recommending the same that an ISC should be constituted, but unlike its study team, it wanted the ISC to operate alongside the other adhoc bodies. It noted that the phrase “common interest” occurring in Article 263 was a comprehensive one which might be construed to cover problems relating to or arriving out of the Constitution, legislative enactments, administration and finance.
Confrontationist From 1960s To 1980s
Mrs Indira Gandhi humbled the Congress machine, re-established the supremacy of the parliamentary party over the party organisation, broke the power of state Chief Ministers, and established a new balance or rather, imbalance between the Centre and the States. And her personality cult slowly converted Congress into a coterie party.
The Congress Government at the Centre further increased its powers vis-a-vis the states by allotting large funds mainly for centrally sponsored development projects. These were the projects that were to be implemented in the states but administered by the centre.
All this however could not stop the formation of new parties which were born outside the Parliament, based on ideology, like the DMK in Tamil Nadu, Telgu Desam in Andhra Pradesh and Communist Party in Bengal. Playing with the country’s inherent federal spirit can be a double edged weapon. The very policies of centralisation, politicisation and dictatorship that damaged the federal and democratic structure of the country, led to the rise of a strongly ideological party on the right i.e. the BJP and a mildly ideological combine on the Left.
In 1969, Chief Ministers of Andhra Pradesh, Orissa and Kerala met at the Chief Ministers’ Conference as they were dissatisfied with the issue of centre state relations. In the 1970 Conference, the then CM of Maharashtra challenged the very competence of Planning Commission to set norms for giving special assistance to certain states forming their non-plan commitments. The states were totally opposed to handing over the administration of agricultural income tax to the Centre.
In 1971, the North Eastern Council was set up by the North Eastern Council Act, 1971. Comprising 8 states i.e. the seven sisters and Sikkim, it was to serve as the nodal agency for socio-economic development of NE region. Unlike the Zonal Councils, it has to its credit a lot of achievements in the electricity and education sectors. The Second Administrative Reforms Commission in its 15th Report on ‘State and District Administration’ suggested that the North Eastern Council (NEC) should establish an apex Regional Academy for Human Resource Development as an autonomous body with academic and executive flexibility.
In the meanwhile, the Rajmannar Committee Report came out in 1971 comprehensively reviewing centre-state relations. It recognised the urgent need to constitute a non-political advisory body u/a 263 to keep inter-governmental relations under constant review. Since such a body would be free of politics, hence it would command greater respect and its advices would be more acceptable. The ISC should not be merely advisory but be “ordinarily binding” on both the Centre and the States. No decision of national importance or which may affect one or more states should be taken by the Union Government except after consultation with the ISC. Every bill of national importance or which is likely to affect the state interests should, before its introduction in the Parliament, be referred to the ISC, and its views thereon should be submitted to Parliament at the time of introduction of the Bill. It is apparent that the Rajmannar Committee gave the most pro active recommendations.
It was due to Mrs Indira Gandhi’s misadventures that in Kesavananda Bharti v State of Kerala, 1973 , the Courts evolved the ‘basic structure’ doctrine to save the Constitution from the misplaced establishment sovereignty of the Union Parliament. Chief Justice Sikri clearly stated that the federal character of the Constitution was a feature of the basic structure of the Constitution which was, hence, not open to whimsical amendments. And the Doctrine of Supremacy of the Constitution is part of basic structure i.e. neither of the three constitutionally separate organs of the State can leap outside the boundaries of its own constitutionally assigned sphere or orbit of authority into that of the other.
Federalism came heavily under pressure with the declaration of emergency on 26th June 1975 under ominous conditions. Apart from damaging the federal structure, it also sowed the seeds of secessionist militant movement among the Sikhs in Punjab. However, it must be kept in mind that declaration of emergency in itself is not an attack on federalism. But if the same is done under questionable circumstances not in sync with the spirit with which the provision for it was enacted, then federalism is surely under attack.
The amendments introduced in Article 356 by the 44th Amendment Act helped to mitigate the abuse of emergency provisions. By deleting the clauses which made the declaration and continuance of emergency by the President conclusive, it provided an opportunity for judicial review i.e. the Courts can now take a more active part in preventing a malafide exercise of power to impose President’s rule. Quoting Justice P.B. Sawant in S.R. Bommai v Union of India , “....The courts should not lightly decline to exercise judicial review when as a matter of common knowledge, the emergency has ceased to exist.....This amendment has been prompted not only by the abuse of the Proclamation of emergency arising out of war or external aggression, but even more, by the wholly unjustified Proclamation of emergency issued in 1975 to protect the personal position of the Prime Minister”
This declaration of emergency had another significant impact. It gave an opportunity to the nascent opposition, struggling for its birth, a burning political cause and a strongly shared grievance that enabled the leaders to sink their differences and to plan for the future. This led to the rise of the Janata Party, India’s first alternative to the Congress, which won in 1977 elections, marking a watershed in Indian politics . It is to be noted that the break up from single party rule across the country and the rise of regional parties happened simultaneously with the existing virtually single party rule of Congress. It was because of the federal structure that people could aspire for share in power.
The National Development Council continued to meet once a year, on an average, throughout the Seventies, but in the Eighties, as the relations between the Congress and the opposition grew more and more strained, the frequency of the meetings declined. In the eighties, it met not more than seven times, and the meetings were marked by acrimony and tension.
The West Bengal Government Memorandum on Centre State relations, prepared by the Left Front Government of West Bengal in 1977, reflected the increasing disagreement with the Centre and portrayed the Constitution as essentially unitary in character. Many of its recommendations were similar to those of Rajmannar Committee.
In State of Rajasthan v Union of India, States of Rajasthan, Madhya Pradesh, Punjab, Bihar, Himachal Pradesh and Orissa challenged the sufficiency of grounds of action by the governor under Article 356(1). Chief Justice Beg held that sufficiency or inadequacy of the grounds for declaration of emergency could not be gone into by the Court. Only if the grounds are disclosed to the public by the Union Government which revealed that a constitutionally or legally prohibited or extraneous or collateral purpose was sought to be achieved, only then the Court would look into it. Dissent was been expressed against this judgement in S.R. Bommai case which expanded the scope of judicial review.
In 1978, the Chief Ministers’ Conference of non-Janata Party CMs of South India was held. They discussed the language issue i.e. the imposition of Hindi on the non-Hindi speaking people, and urged the PM to intervene.
Mrs Indira Gandhi returned to power in 1979. Her highhandedness further invigorated movements for autonomy within the existing states and movements for separation from the Union as in Andhra, Assam and Punjab.
In 1983, the Conference of non-Congress ruled states was held. It paved the way for the formation of Council of Chief Ministers for Southern Region. They expressed that states should discuss mutual problems at their own level amongst themselves. Centre should be approached only if they fail in solving the issues ate their own level. They also felt dwarfed at the meetings of the NDC in which the Centre and the Planning Commission dominated. The Council of CMs for the Southern Region was the precursor to the Council of Chief Ministers of all States. It was in favour of cooperative federalism in true spirit of the Constitution.
Opposition Conclaves took place in different parts of the country to express views on centre-state relations. In response to the call of CM of Andhra Pradesh, N. T. Rama Rao, the first Opposition Conclave was held in Vijaywada in 1983. Fourteen non-Congress parties gathered to criticise the Centre for encroaching upon the powers of the states and the Centre was held responsible for all economic problems of the country. In 1984, Delhi Conclave was held. It was opined that the Union was only a mother organisation to coordinate the activities of various states, helping them to develop. It could not operate as an institution or treat the state governments as its branch offices. The states would soon become just puppets dancing to the Centre’s tune and unable to exist as viable territorial units. In the Srinagar Opposition Conclave, 10 non-Congress parties gathered. It was suggested that Governors must be appointed by the President on the basis of a panel forwarded by the State Governments concerned and Articles 200 and 201 should either be suitably amended or else deleted. It also said that it must be mandatory for the President to constitute ISC. And that the NDC and the Planning Commission should be given constitutional and statutory status with proper representation of states on these bodies. The last was the Calcutta Conclave participated by 18 non-Congress parties accusing Indira Gandhi of engaging in a conspiracy against the Opposition.
Opposition conclaves should be made a regular feature of our dynamic system. They symbolise a healthy and responsible federalism. They are a useful forum for getting to know the other side of the picture. Such conclaves must be held and thereafter be covered well by the media for the knowledge of the public. But the same requires a mature Opposition too. If the same is ensured, opposition conclaves can serve as a fantastic form of institutionalised criticism and pro activeness. It may even transform into a pseudo shadow cabinet system found in the UK.
In this background of simmering discontent among opposition ruled states, Mrs Gandhi constituted the Commission on Centre State Relations headed by Justice R. S. Sarkaria, a retired judge of the Supreme Court, in 1984 which submitted its voluminous report in 1988 to the Rajiv Gandhi Government recommending inter alia, a permanent Inter State Council as an independent forum for consultation with a mandate defined according to Article 263 . It should deal with subjects other than socio-economic planning and development and have an advisory role only. Administratively, it should be called Inter Governmental Council.
Mrs Gandhi was assassinated in 1984. But Congress came to power again due to sympathy vote for her son Rajiv Gandhi. Steady deterioration of centre-state relations had come to head under Rajiv Gandhi. Meetings of the NDC became acrimonious.
Tensions were most acute over financial matters. Rajiv Gandhi further increased the control of the centre over plan funds to be spent in the States by bringing majority of the programs under centrally sponsored schemes to include everything like drinking water and supply of oil seeds. The State governments were slowly sidelined from all areas of development generating resentment among the latter. Such a tendency is found even today (Rural Health Mission, Sarva Shiksha Abhiyan etc.) and it shows lack of confidence in the states and discourages initiative from the states making them dependent on the Centre for basics. It does not augur well for progressive federalism. It is also an instance of the misuse of the grants under Article 275.
In D.C. Wadhwa v State of Bihar, the Court upheld the writ petitions challenging the constitutional validity of the practise of the Governor of Bihar of repeatedly promulgating the same ordinances without caring to get the Ordinances replaced by Acts of the legislature. To quote Justice Bhagwati, “The power to promulgate an ordinance is essentially power to be used to meet an extraordinary situation and it cannot be allowed to be ‘perverted to serve political ends’ ”
To control unprincipled defections induced by allurements of office, money and pressure, the Tenth Schedule was added by the Constitution (52nd Amendment) Act, 1985. But since the desired goal could not be achieved, law was further strengthened by the Constitution (Ninety First Amendment) Act, 2003.It deleted the provision which did not treat mass shifting of loyalty by one-third as defection.
An important Chief Ministers’ conference was held on June 11, 1989 to forge a consensus on the statutory creation of PRIs.
With the economic liberalisation of the 1990s, State leaders came to demand partnership in the federal policy making processes that concern multilateral agreements with international organisations. This brought out into the open the economic and regional disparities making the same a matter of significant concern all the more for the federal government. At another level, inter-state competition of sorts came to mark the behaviour of state governments to attract FDI. Hence, economic liberalisation prompted a change in federal relations from inter governmental cooperation to inter jurisdictional competition among the states.
After the assassination of Rajiv Gandhi on May 21, 1991, there was serious concern as to whether India really was a viable entity and whether it could hold together in the face of fissiparous tendencies springing all over the country.
Cooperative In The Late 1980s
In 1989, Congress was replaced by a Minority Government called the National Front led by V. P. Singh. This marked the beginning of multi party system in India. In its election manifesto, the National Front argued for a serious commitment to, what it termed, “true federalism” by reversing the over centralisation brought about by the ruling party. A government by consensus was evolved. Two meetings of NDC were held. One was held on June 16, 1989 to endorse the approach to the 8th Five Year Plan. The other meeting was held on October 9, 1989, at which the government asked the members of the Planning Commission to make a presentation to the assembled CMs explaining the rationale for the allocations that had been made to each sector of the economy, and how the principal goals of the plan would be met.
In addition to revival of the NDC, the Inter State Council was set up as an apostle of federal comity on a permanent basis . It was created under Article 263, a general Article under which any number of such bodies can be appointed to deal with various matters. Its genesis is Section 135 of Government of India Act, 1935. The report of Joint Commitee of Indian Constitutional Reform contained the philosophy for the inclusion of an ISC.
The Council met on August 10, 1990 on its creation. Thereafter, the first meeting was held after a gap of 6 years on October 15th, 1996. Since then, it has met sporadically. In these meetings, it has taken view of all 247 recommendations of Sarkaria Commission, 65 of which have not been accepted by the Council, nor by the administrative ministries of the departments concerned, while 179 recommendations have been implemented.
Basically advisory and recommendatory, its main function is to inquire and advice upon inter – state disputes of non-legal nature. Hence it complements the Supreme Court’s jurisdiction under Article 131.
The Council is fully dominated by the executives of the two levels of government. There is no representation from, or role for, the legislature in deciding the agenda and issues to be discussed. Furthermore, the meetings of the Council are held in camera and while the questions discussed by the Council are decided by consensus, the decision of the PM is final.
Constitutionality of a policy is determined only by Articles 245 and 246. It does not make any difference if the matter is not taken to the Council . It is also to be noted that whereas Article 263 contemplates inquiry into, and advice upon, disputes between states, it does not bring within the scope of the Article disputes between the Union and a State.
The fact remains that in spite of the Council being a constitutional body and the Prime Minister being its Chairman, yet, the Council has been a non-factor in India’s federal relations. It is neither an analytical unit that provides short term or long term strategy nor is it a public policy making institution. It has met sporadically according to the changing political scenario. Moreover, it has no decision making authority.
Even then, the importance of a body like the ISC cannot be ignored because in the modern times, the problems of a nation have become so intertwined that they cannot be solved by a mere division of power by the Constitution as between the Federation and the States. An authority like the ISC is extremely important to assess the impact of national policies on states and coordinate their mutual policies, without surrendering their respective constitutional jurisdictions.
A standing body is definitely necessary to ensure follow up action and to ensure a holistic perspective which cannot be achieved through adhoc bodies and meetings alone.
In Dabur India Ltd v State of UP , the Supreme Court recommended that the Government should consider the feasibility of setting up a Council under Article 263 which would adjudicate and adjust the dues of the respective governments. Chief Justice Sabyachi Mukherjee stated the if a dispute is under two different central legislations, and under one, the state authorities can realise and impose the taxes on finding certain basis, and under the other, the same transaction may be open to imposition by Central Government authorities on a particular view, in such a situation, how and when the refund should be made of duty in respect of a transaction to one of the authorities, the state or the Centre to be adjusted, should be a subject matter of settlement by the Council to be set up u/a 263.
To revitalise the ISC, Prof M.P. Singh suggested that the ISC should strive for autonomy on the lines of the Election Commission. Rekha Saxena suggested its merger with NDC. As long as a mechanism remains advisory, it will be nothing more than an ornamental piece. That is the chief reason for the lack-lustre condition of the ISC and other such bodies. But if these bodies are properly worked, they can serve as the panacea to the rising fissiparous tendencies today.
Cooperative In The 1990s
The National Front coalition government of V.P. Singh fell. Chandrashekhar of Samajwadi Janta Party followed from 1990-91. And in the 1991 elections, P. V. Narsimha Rao was elected. The return of Congress and the five years rule from 1991 to 1995 under one party signified a desire among the people for stability, and the fact that federalism can survive only if the Centre itself is strong and competent. A Centre that is formed of parties that are incoherent in their plan of action will be a weak centre that cannot sustain a healthy cooperative structure. Hence simply having a multi party centre is not a guarantee that the same would strengthen federalism or that it would be better than single party rule at the Centre.
Narsimha Rao followed a conciliatory style of politics. He held all party meetings and used the National Integration Council to forge a consensus on communal issues and meetings of the CMs under the aegis of NDC and ISC to discuss specific thorny problems like urgent need to stop providing electricity virtually free of cost to agriculture. The NDC has immense untapped potential. Bringing the CMs together in national decision making will be extremely useful as it not only helps in strengthening cooperative federalism, but also makes the states understand the limitations and compulsions of the Centre as well as the limitations of other states.
In 1992, the 73rd and 74th Amendment Acts were passed making India the first statutorily defined three tier system of democracy. It was envisaged as a way to destroy paternalism of the centre. A brainchild of Ramakrishna Hegde, it was first implemented in Karnataka in June 1987. This measure in many ways formed the core of the federalist, decentralised form of democracy.
In 1996, the BJP Coalition was formed that lasted only two weeks as its vision was flawed. It was followed by the United Front Government under Deve Gowda from 1996-97 and then IK Gujral from 1997-98 of the Janata Dal.
In the landmark Nine Judge Bench decision S.R. Bommai v Union of India , it was held that “satisfaction” of the President is not his personal whim or opinion but a legitimate inference drawn from the material placed before him, and the same is relevant for the Courts. The validity of the Proclamation under Article 356(1) was judicially reviewable to the extent of examining whether it was issued on the basis of any material at all or whether the material was relevant or whether the Proclamation was issued in the mala fide exercise of the power. And that although Article 74(2) bars judicial review so far as the advice given by Ministers is concerned, it does not bar the scrutiny of the material on the basis of which advice was given. Quoting Justice Sidhwa in Khaja Ahmed Tariq Rahim v Federation of Pakistan, “...Unless a violation of a provision of the Constitution was so grave that the Court could come to no other conclusion but that it alone directly led to the breakdown of the functional working of the Government, it would not constitute a valid ground”. Noting the observations in Sarkaria Commission Report, Article 356 provides the remedy when there has been actual breakdown of the constitutional machinery of the state. Hence, exercise of power under 356 must be limited to rectifying such a failure only. A wide literal construction of the Article will damage the fabric of the Constitution.
In 1996, a group of Chief Ministers and regional leaders met in Hyderabad to discuss what they considered to be a paradigm shift in federal relations in India. The slogan of their meeting was “Federation without a Centre” because they believed that with the formation of the United Front Government, the pattern of federal relations in India had undergone such a dramatic change where the Central government had been rendered superfluous.
BJP came to power again from 1998-2003. It created three new states in 2000 to recognise the demands around tribal identities. It is important to note that these new states have emerged very much within the fabric of India which is a “Union of States”, reinforcing that our federalism is alive and kicking. Indian federalism has also experimented with sub state regional development councils to satisfy regional, ethnic and tribal aspirations.
Inclusion of languages has been another mechanism of cooperative federalism. In 2003, Bodo, Dogri, Maithili and Santhali were included in the Eighth Schedule of the Constitution. The inclusion allows privileges like simultaneous translation facilities in Parliamentary proceedings, allocation of central government funding for development of the language and its literature and is an effective tool to include the periphery into the mainstream.
The National Commission to Review the Working of the Constitution (NCRWC) submitted its report in two volumes to the Government on 31st March, 2002. It recommended that there was a need to institutionalise the consultation process between the Centre and the states. It considered Article 263 as being in tune with the spirit of cooperative federalism and suggested that the ISC Order, 1990 may clearly specify in 4(b) of the order the subjects that would form part of the consultation in the ISC. Article 139A should be amended so as to provide that it can withdraw to itself cases even if they are pending in one Court where such questions as to legislative competence of Parliament or State Legislature are involved. Further, an Inter State Trade and Commerce Commission should be established.
Cooperative, Concomitant, Negotiatory And Opportunistic In The Last One Decade
The current trends emphasize cooperation and coordination, rather than demarcation of powers between different levels of government. The basic theme today is interdependence.
BJP lost heavily in the elections of 2003 due to its “Shining India Campaign” resulting in victory of the Congress with support from outside of the Left. It was a testing period for the Central Government as it had to play the balancing act very carefully. Soon after the Government was formed, it faced the threat of withdrawal from the DMK for not getting plum posts. And it had to face the wrath of the Left over the Indo-US Nuclear Deal, though successfully, when it had to prove its majority on the floor of the House. In 2008, the Congress came to power without outside support.
On 31st August, 2005, the President set up a Commission of Inquiry called the Second Administrative Reforms Commission (ARC) to prepare a detailed blueprint for revamping the public administration system under the Chairmanship of Shri Veerappa Moily.
On 22nd September 2006, the Supreme Court of India delivered a historic judgment, in Prakash Singh and Others v Union of India, laying down six practical directives to kick-start the police reform process. The most important directives of the Supreme Court are Directives 1 and 6 on setting up State Security Commissions and Police Complaints Authorities. The Manmohan Singh government had set up a Police Act Drafting Committee (PADC) to draft a new Model Police Act, commonly known as the Soli Sorabjee Committee in 2005-06 . The committee's work and its model Act also provides a sound legislative guide for state governments to follow in forming their own Acts.
In Rameshwar Prasad v Union of India , Chief Justice Sabharwal held that, “.....Undisputedly, the Governor is charged with the duty to preserve, protect and defend the Constitution and the laws, and has a concomitant duty and obligation not to permit the ‘canker’ of political defections to tear into the vitals of the Indian democracy..... After elections, every genuine attempt is to be made which helps in installation of a popular Government, whichever be the political party”.
On April 27, 2007, the Second Commission on Centre State Relations was set up with Chairperson Justice M. M. Punchhi , to look into the sea changes that have taken place in the polity and economy ever since the Sarkaria Commission looked into the issue of centre-state relations two decades ago. Its report is due. The Commission has been criticised for non inclusion of the major points in the Centre State relations such as the needed increase in the share of central taxes for the states, transfer of centrally sponsored schemes in the state subjects to the states and the alleviation of the problem of debt burden on the state. There has been an intrusion into the jurisdiction of the states as items (j) and (k) of the terms of reference have been mentioned along with the idea of setting up of a central law enforcing agency. These go against the basic issue viz. the law and order being a state subject.
On January 6, 2009, CMs conference was held in Delhi where the multi dimensional challenges from terrorism, Left-wing extremism and insurgency in the North–East were highlighted. The CMs conferences should not be an opportunity wasted. The pivotal point that determines the country’s security ultimately depends upon the citizens’ confidence in the state machinery .On June 29, 2009, CMs conference was held in Delhi with the participation of 29 CMs on the issues of rural development, drinking water and sanitation.
Though the dominant party today effectively is the Congress alone, yet there is hardly any possibility of an Indira Gandhi like confrontationist federalism to take shape because cooperative federalism today is the result of a complex interlay of multiple factors. It is no longer the old 2-tier kind of set up. Rather it has become not just 3 tiered but also multi layered within the 3 tiers, along with the interplay of independent external players envisaging newer opportunities for shared action. All this has added to the beauty and strength of our federal structure.
Challenges For 21st Century FederalismThe new challenges facing 21st Century federalism have further necessitated the pre existing need for cooperative federalism, thereby making its practice as a form of governance all the more indispensable. Technological advances have led to tremendous improvement in connectivity and accessibility, both, physical as well as electronic.
Environmental challenges of global nature like climate change do not recognise state frontiers. Pollution and conservation issues reflect the uncomfortable tension between decision making process of the governments at the centre-state –local levels. Public Trust Doctrine is a new doctrine of federalism evolved by the Supreme Court in MC Mehta v Kamal Nath . It has established a direct link between the State and the public. To quote Justice Kuldip Singh, “The State is the trustee of all natural resources which are by nature meant for public use and enjoyment...and is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership”. Disaster Management transcends inter-state boundaries.
Globalisation has reinforced the need for concurrence between the geographical, climatic, environmental and technological diversities inter as well as intra states so that they may link with global processes for viable and sustainable development and growth. What is being experienced at the global level is also being felt at the local level. India is making strides in the global sphere and the local governments that promote shared partnership in development have come to be noticed today. Hence, whenever development programs or any other interests of states in matters relating to IT or investment by way of export, trade, exchange of projects etc are touched by international agreements, the well conceived demands of states should be met in order to promote truly cooperative, coordinative and multi dimensional centre state relations. This requires mutual trust and confidence.
Since the world has become a global village, the country’s internal security and political problems are open to external influence verging on intervention. For instance, the US Ambassador to India, Mulford, in 2006, overstepped his diplomatic role by writing directly to the Chief Minister of Assam offering assistance from the FBI to investigate a bomb attack in the state. Hence, under the garb of protecting human rights and on the plea that minorities are being tortured, big powers can intervene militarily which is against India’s interest.
The states today have acquired sufficient political weight of their own through a pluralised party system enabling individual states to embark onto bilateral negotiations with the union bypassing the institutionalised bodies of collective policy framing that have proved to be ineffective, thus lending a negotiatory character to our federalism.
However, the same must be taken with a pinch of salt because power sharing by states at the central level has not contributed towards reducing localism, parochialism and chauvinism of regionalists and sub-regional parties. Increase in bargaining capacity will serve to strengthen cooperative federalism only if the supposed drawbacks of centralism are mitigated through it.
The increasing voices of autonomy and separatism have vitiated the political and social fabric of the federal structure. States are increasingly harbouring feelings of deprivation and alienation and have begun viewing all problems from a narrow parochial outlook. Moreover, their approach is becoming violent confrontationist.
This not only weakens the nation politically and economically but also makes the land fertile for the growth of terrorism and insurgency.
The Indian Union has united its rich diversity of its humungous population serving as an example to the rest of the world. This is an asset to be built upon for the future. To override the fissiparous tendencies, only the legitimate grievances of the regions or states should be addressed as far as possible within the framework of the federal Constitution. More importantly, a strong sense of nationhood is necessary to maintain our territorial integrity and internal security, and this cannot be accomplished without cooperative federalism.
Terrorism, militancy, organised crimes, problem of internally displaced persons, refugees – all these require that the country as a whole comes together and the institutional bodies under state governments help the centre by collectively making available the necessary information and resources.
The need to come together today is not only the consequence of the new challenges facing the nation but that the same will serve as an antidote to prevent such challenges from recurring in future. Cooperative federalism alone strengthens the nation from within by enabling it to withstand adversities and challenges because of its inherent resilience and malleability.
The relation between the centre, the states and the local tiers lies at the heart of India’s sense of nationhood and is the pre requisite for India’s progress. However, a strong political undercurrent runs through it. Every centre-state and every inter-state dispute is at its heart, a political dispute. This is the root cause of the problematic nature of centre state relations. Such a dispute slowly ripens into an economic one. Bad politics leads to bad economics. Unless stagnation in the economic field and unbalanced regional development are not addressed, integration and solidarity in the federal set up will not be complete. Both Centre and State governments must attend to the task of preserving our nationhood through constructive cooperative federalism which requires a great deal of commitment.
India is a beautiful melting pot of diversity. The same needs to be valued and cherished. And there isn’t a better way to do so than by cooperative federalism. In the famous words of Justice Nani Palkhivala - WHO DIES IF INDIA LIVES AND WHO LIVES IF INDIA DIES..... People of several states sink or swim together, and that in the long run, prosperity and salvation are in innovation and not in division; mutuality and not conflict; cooperation and not competition.
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• GOI, Planning Commission, 9th Five Year Plan (1997 – 2002), Vol 1
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