By Upsetting Balance of Federalism, the Centre Is Playing a Dangerous Game – The Wire

The system of polity introduced by the framers of our constitution is unique in its disposition and functioning. The Indian constitution, the longest written constitution, tried to assemble the best features of different constitutional systems and also attempted to weed out possible vices inherent in any particular system and ended up adhering to the middle path. The drafting committee described the constitution as federal in structure, though the scholars and actual working of the constitution have shown that the polity is unique in its formation. It is neither completely unitary nor federal in its nature.

The Indian constitution provides all features that are essential for a federal structure, i.e. supremacy of the constitution. A state derives its existence from the constitution itself, including all powers be it executive, legislative or judicial, dual government there is a central government and a government at the state level, third, distribution of power central government and state exercise their legislative and executive power assigned to them under the constitution, and the courts are the final arbiter of any disputes. However, lately, it has been seen that the Union is trying to upset the balance which is to be maintained under the constitution.

The 42nd amendment was a watershed moment in the theoretical dilution of federal structure in India whereby a large number of subjects on which the states previously had autonomy were altered. For example, entry 2A was introduced, empowering the Union to deploy armed forces in a state, which can be seen in action now when BJP MLAs in West Bengal have been given central security cover. Similarly, forests, previously an exclusive subject for states (entry 19), was transferred to the concurrent list (entry 17A), resulting in the central government passing laws on forests, thereby taking away the autonomy of the States in dealing with this natural resource.

Also read: Centres Tussle With Bengal Over Chief Secretary Reeks of Uncooperative Federalism

The recent developments have, in a way, made this structural imbalance painfully apparent. The National Education Policy, GST, Farming Laws, Centre-run schemes are some of the recent forays of the Centre into territory perhaps best kept confined to the states. Even vaccine distribution during the COVID-19 pandemic has suffered from this upset in the federal balance where the Centres inability to distribute vaccines to all the states was met with widespread criticism, and Justice D.Y. Chandrachud remarked in court that, Article 1 says that Bharat is a Union of States. When the Constitution says that, then we follow the federal rule. Then Government of India has to procure the vaccines and distribute it. Individual States are left in a lurch.

A recent example of weakening federalism is the Centres order attaching West Bengals chief secretary to the Centre with immediate effect, a development that came hours after the chief minister of the state did not attend a meeting with the PM on reviewing Cyclone Yaas.

Another example is the National Education Policy 2020 which has been criticised for excessive centralisation. Federalism requires that states and the Centre work on an equal footing to determine policies. However, the NEPs visions of a central agency to test and regulate educational institutions have taken away the powers from states. Since it was felt that states are best placed to determine the requirement of its subjects, education was made as a state subject at the outset. The centralisation of the medical entrance exam (NEET) was even been challenged by Tamil Nadu.

The consequences of such centralisation can be very destructive and demoralising for students from rural areas who are taught a state board syllabus. In the Tamil Nadu case, it is unfortunate that the 17-year-old Dalit medical-aspirant who had challenged NEET was unable to secure admission in a medical college, despite scoring 98% in her board examination and died by suicide.

The Constitution of India. Photo: Wikimedia Commons

The 102nd amendment to the Indian constitution inserted Articles 338B and 342A into the constitution. Article 338B set up a National Commission for Backward Classes and Article 342A vested the power to notify a class as a backward class. In the case of the Maratha Reservation matter, a constitution bench of the Supreme Court held that after the 102nd amendment, the states no longer had any power to determine backward classes.

Also read: Centres Flawed Vaccination Policy Will Turn States Against Each Other

Though it is true that India is not a strictly federal nation, rather it is a quasi-federal state with asymmetric federalism, where more power is concentrated in the hands of the Centre. In the constituent assembly debates, Dr Ambedkar stated that the constitution is both unitary as well as federal according to the requirement of time and circumstances. In many judgments, the Supreme Court has emphasised on the importance of pragmatic federalism, stating that pragmatic federalism is a form of federalism which incorporates the traits and attributes of sensibility and realism. Pragmatic federalism, for achieving the constitutional goals, leans on the principle of permissible practicability.

It is useful to state that pragmatic federalism has the inbuilt ability to constantly evolve to changing needs and situations. It is this dynamic nature of pragmatic federalism which makes it apt for a body polity like ours to adopt. The foremost object of the said concept is to come up with innovative solutions to problems that emerge in a federal setup of any kind, the Supreme Court observed in Government of NCT of Delhi vs. Union of India (UOI) and Ors.

Even though it may be argued that our quasi-federal structure and the emphasis on pragmatic federalism allows the Centre to take up more and more powers away from the state, it is important to analyse the effect of such action. This growing encroachment of central government is worrying as it steps on the toes of the states that are best placed to make decisions within certain spheres, being in touch with the real state of affairs and having more knowledge about their unique social, economic and cultural landscapes. The Centre is often a meddlesome outsider that is out of touch with the real picture.

Along with pragmatic federalism, what needs to be examined is the concept of maintaining the federal balance. The idea is that the power of the Centre is to be limited to subjects that concern the nation as a whole, while states are free to pursue their local interests in the way they desire. As succinctly stated by the Supreme Court Pin I.T.C. Limited vs. The Agricultural Produce Market Committee and Ors.: The fact that under the scheme of our Constitution, greater power is conferred upon the center vis-a-vis the States does not mean that States are mere appendages of the center. Within the sphere allotted to them, States are supreme. The center cannot tamper with their powers. The unchecked and ever-increasing centralisation is upsetting the federal balance upon which the well-being of our citizen rests.

Also read: The Great GST Impasse Threatens Indias Federal Structure

Therefore, it is the need of the hour for the Centre to rein in its expanding powers and leave matters such as education in the hands of the states which know best where and how the resources should be channeled.

N.R. Elango is a senior advocate and a DMK MP of Rajya Sabha andAmit Anand Tiwari is an Advocate on Record practicing in the Supreme Court of India.

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By Upsetting Balance of Federalism, the Centre Is Playing a Dangerous Game - The Wire