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Federalism: A case sui generis

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There can be no centre without states.

federalism, but in India quasi- federal nature of polity, preventing various state governments to secede from the union. True federations empowers state to come out of Union as independent sovereign units. Foundations of our federal democracy rests upon centre state collaboration, with peaceful coexistence and interdependence parallely transcending, thus making federal balance. Indian constitutional structure with federal principles, has over the time sustained the constitutionally divided  sovereignty and ensured its integrity with diverse customs and traditions. Manifestation of it being laws enforced uniformly country wide, exemption to certain personal laws being the only exception to it.

KC where has termed Indian federalism as “quasi federal” in nature and purpose. Add to this, we have success model of USA, the oldest federation in the world. There the federal hallmark lies in distribution of powers both legislative and executive  between the constituent units. The 10th amendment in US constitution is a significant milestone in this regard. It provides that the remaining powers not reserved for the federal government, were now, reserved to the state governments with immediate effect. This push forward the states for joining the federal union, thus the United states of america was born. The distribution of powers is based on economic theory of laissez faire.  

Cooperative federalism:  evolution of pragmatism

System where centre and states share horizontal relationship in a larger public interest. It connotes the notion of pragmatic federalism based on needs and interests of various stakeholders.

Source of  quasi-federalism

Article 1 of the Constitutio , here constitution does not explicitly mention the term federalism, rather an inference can be drawn regarding a governance structure primarily federal in nature.

1) Territorial jurisdictions governed by centre and state governments (schedule 1)

2) Distinguishes powers and functions of the two governments

3) Legislative, administrative and financial relations between the union and states, division of powers vide art 246, subjects given in (schedule 7)

Supreme court views

In the landmark case of state of west bengal V. Union of India. The main issue in the case was the exercise of sovereign powers by Indian states. The legislative competence of parliament to enact a law for compulsory acquisition by the Union of land and other properties owned by the state. The apex court categorizes Indian form of federalism as distinct from others and thus held-

1) Indian Constitution did not propound principle of absolute federalism.

2) Constitution of India is a supreme document which governs all states and there is no provision of separate constitutions for each state as required in a federal state.

3) States has no power to alter the constitution , only centre has.

4) Indian Constitution renders supreme powers upon the courts to invalidate any action which violates the constitution.

5) Distribution of powers facilitates national policies matter by central government and local governance by the state governments.

The supreme court further held that central government is the final authority for any issue. The political power distributed between the union and the state government with greater weight to the union government. Another thing which is against the pure form federalism is the concept of single citizenship in India.   

Relevance in changing times: COVID crisis

Modern challenges to governance and corresponding structure gives birth to cooperative federalism. It is under severe test of its validity with the evolving issues like levying of taxes (post GST), policy autonomy to states and other concerning law and order and regulatory issues in corona times.

To advance the solemn purpose of federalism, federations and its constituents, here the States, a time and tested policy of broad and fair consultations to seek administrative cooperations of various state governments is to be formulated. This requires the Centre to view states as equals and strenghtening their fiscal measures, because states are the first respondents to any crisis. To further this objective, the leadership of President (at centre) and Governors (in states), to be mandated to provide a gateway and necessary assistive intent between the Union executive and state executive.

It is equally important for state governments to initiate planning with centre, if fails, to make necessary room for back room consultations and conciliations. Institutions like NITI Aayog and finance commision are the place where centre and state can work together as equal partners in policy making to strengthen democracy.

Fundemental directives on right to livelihood

Explicit constitutional obligation vide art 39(a) and 39(e), with ever weakening assertion of right vide art 21, has compelled the centre and state to ensure livelihood. This will be achieved through synchronised efforts  of centre and state and not in isolated ecosystem. Federal governance must reflect the expression of constitutional propriety  as directed and supervised by constitutional prescriptions.

Aberrations

The obsession of unilateral directives of a brute majority at centre, impacts the federal intent, that is also a hallmark of constitutional morality. Experience shows, only the minority governments has complied with the federal principles in letter and spirit. A unitary federal bias is always evident in legislative majority and assertion of its numerical strength, often seen in parliamentary compliance procedures.

Our constitution is a meticulously and magnificiently drafted vision document, which furthers the pluralist ideals with social solidarity, ensures pace of economic development with protection of downtrodden. It restricts the power of executive whilst providing essential safeguards to civil liberties. Devices like basic structure, constitutional morality and federal polity, make further inroads in maintaining constitutional supremacy, for achieving the unhindered objective of equality for all and equal opportunity for all. 

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