Author: Susmita Vadhavkar[1], Researcher, Alumnac of Pune University.
ABSTRACT
In a federal system powers are divided between two levels of governments so problems and disputes are inevitable. The issue of India’s federal nature is a disputed one and has been both a subject of conflict between the ruling party and the opposition. There have been instances when the state parties accused the Centre of violating the federal spirit and there have been cases when the Centre alleged that the State regimes did not adhere to it. The recent instance of this is the politically divisive issue of CAA which created a rift between the central and state governments. The global pandemic of the corona-virus also caused rift between the centre and some states thereby splitting open the federal crevices of the country. In view of such discords, a need for suitable machinery to resolve them is felt in all federations. If the Constitution does not provide for it, then some extra-constitutional means are brought into practice to fill in the void. The Indian Constitution is the most detailed one and legislative powers have been neatly enumerated in Union, States and Concurrent lists,[2] but this elaborate demarcation of legislative powers does not mean that India does not face problems in the field of Centre-State relations. The already in existence informal mechanisms for solving Centre-State problems which are of ad-hoc nature proved to be ineffective so there is a need for a strong mechanism to solve these in an amicable way. The researcher through this paper highlights the role of inter-state Council in strengthening the federal structure.
The paper begins with a discussion over the complex & unique nature of Indian Federalism & how it doesn’t fit into the acclaimed patterns of federalism practiced over the rest of the world. The paper also enumerates the opinions of various jurists regarding the same.
The paper then elaborates on the Inter-State Council & studies its composition as per the constitution and various other commissions. The researcher then makes an in-depth study as to the need of such Council for establishing amicable & co-operative relations among the states and the union. The researcher also throws light on how such council will be beneficial when the NITI AAYOG has a similar body. Further the paper goes on to make a comprehensive study of the scope of Article 263 which deals with the provision of the Inter-state Council.
In its finality the paper inspects & analyses the far-reaching impact of the Council in strengthening the centre-state relations & providing a boost for establishing co-operative relations between them.
Keywords: Federalism, Inter-state Council, Co-operative Federalism.
“Ultimate object being the same, Union and states must function on mutually complementary and cooperative basis and they should feel that they are equal partners in the great adventure of national reconstruction and development.”[3]
– Justice Ramakrishna Hegde
INTRODUCTION
In a federal system where powers are divided between two levels of governments, some differences, problems and disputes are bound to occur. Hence the relationship between the Centre and States in the federal system remains always a sensitive matter. In the present times with emergence of coalition politics, the centre state relations are many a times being stretched. In view of such inevitable discords and disagreements, howsoever detailed may be the demarcation of functions between the two levels of government, a need for suitable machinery to discuss and resolve them is felt in all federations, and if the Constitution does not provide for it, then some extra-constitutional means are brought into practice to fill the gap. The Indian Constitution is the most detailed one and legislative powers have been neatly enumerated in Union, States and Concurrent lists,[4] but this elaborate demarcation of legislative powers does not mean that India does not face problems in the field of Centre-State relations. On the contrary, occasions of discord are very frequent and are no less numerous. The Indian Union comprises as many as 29 States which are at different stages of economic and political development and which have their own perspectives of looking at the problems of State making, nation-building and development.[5] There are various mechanisms which ensure cooperation between the Union and the state governments, such as provision for Inter-State Councils, Zonal Councils, All India Services, National Development Council, Planning Process, NITI Aayog and Finance Commission.
INDIAN FEDERALISM
Federalism is a system of government in which the states unite and give up some of their powers to a central authority.[6] Federalism is a form of government in which the sovereign authority of political power is divided between the various constituent units. This form of government is also called as a “federation” or a “federal state” in the common parlance. These units are the Centre, the states and panchayat or the municipalities. The centre also is called as the union. Framed by the Constitution of 1950, Indian federalism serves the second largest population in the world, comprising an unparalleled multiplicity of cultures, religions, languages, and ethnicities. The original federal design of 1950 drew its structure from the British Government of India Act, 1935, and its inspiration from the idea of centralized planned development.[7]
1. Nature of Indian Federalism: The nature of Indian Federalism has been analysed by the following Jurists as follows:
- Extremely Unitary: One extreme point of view is that India is definitely not federal. As K.P. Mukherjee contends that Indian constitution is definitely un-federal or a unitary constitution. J. C. Johari, writer of a textbook Indian Government and Politics says that Indian federalism is horizontal in nature with a strong unitarian bias.[8] According to Dr. Subhash Kashyap, “the Indian Constitution establishes a strong centre.”[9] While articles 1 and 2 guarantee the existence of the States, the continued existence of the units, and especially their inclusion in a particular part in the First Schedule, is at the mercy of the Centre, nay, at the mercy of a bare majority of the Parliament.[10]
- Extremely Federal: The other extreme view is of designating India as “extremely federal.” Likewise, H. Alexandrowicz opines- “It is undoubtedly a federation in which the attributes of sovereignty are shared between the Centre and the States.[11]
- Co-operative Federalism: Granville Austin advocates that India is a “Co-operative federalism. He believes that the very concept of co-operative federalism implies a strong Centre; provincial governments are largely administrative agencies for central policies. [12]Secondly, Morris Jones talks of Indian federalism as ‘bargaining federalism’.[13] He says “whereas the emphasis in the Constitution is on demarcation, that of political relations is on cooperative bargaining.” He points out that the Finance Commission declined in relative importance as compared with the rise of a system of matching grants which are made under Article 282 of the constitution. Hard competitive bargaining keeps on going between the Centre and States of getting these “matching” grants.[14]
Thus, various jurists have varying opinions on the nature of Indian Federalism. K. C Wheare has popularly called it as Quasi- Federal. However, Indian Federation is neither of these generally acclaimed patterns of federalism, it has its own type of federalism which is unique and aptly suitable for the diverse nature of the country.
2. Federalism in Indian Constitution: The constitution establishes a federal structure in India, i.e., there are separate governments of the union and states, and there is a division of powers between the two. However, there are other constitutional provisions and practices which impart unitary features to Indian federation by giving more powers and prominence to the union in comparison to states like the centre can change the boundaries of the states unanimously,[15] the emergency provisions especially Article 356, Appointment of governor[16] Federalism is a basic feature of the Constitution of India in which the Union of India is permanent and indestructible. Both the Centre and the States are co-operating and coordinating institutions having independence and ought to exercise their respective powers with mutual adjustment, respect, understanding and accommodation. Tension and conflict of the interests of the Centre and the respective units is an integral part of federalism. Prevention as well as amelioration of conflicts is necessary. Thus, the Indian federalism was devised with a strong Centre. Federalism with a strong Centre was inevitable as the framers of the Indian Constitution were aware that there were economic disparities as several areas of India were economically as well as industrially far behind in comparison to others. The nation was committed to a socio-economic revolution not only to secure the basic needs of the common man and economic unity of the country but also to bring about a fundamental change in the structure of Indian society in accordance with the egalitarian principles. With these considerations in mind the Constitution makers devised the Indian federation with a strong Union.[17]
INTER-STATE COUNCIL
Following the provision given in the Constitution, and recommendations of the Administrative Reforms Commission in 1969 and the Sarkaria Commission on Centre-State Relations in 1988, the Inter-State Council (ISC) was created in 1990, and has become a forum where some political and economic issues of joint concern can be collectively discussed and possibly resolved. It proved to be crucial in the implementation of many of the commission’s 247 other recommendations, such as altering the states’ share of central taxes.
The ISC comprises of the Prime Minister, the Chief Ministers of the states, and several central cabinet ministers as members. While the ISC is merely advisory, it has formalized collective discussion and approval of several important matters impinging on India’s federal arrangements, including tax sharing and inter-state water disputes.[18]
1.Need for an Inter-state Council: There was a need for establishment of ISC for solving the Centre-State problems in an effective and co-operative manner. The already in existence informal mechanisms for solving Centre-State problems which are of ad hoc nature proved to be ineffective for the purpose. Hence, an urgent need for establishing an ISC for solving the problems of Centre-State relationship was felt.[19] The need for ISC is explained in following points:
- As a safety valve: The basic challenge for federalism has been the lack of trust between Centre and States. There is an undeniable requirement for a platform that provides a forum for continuous exchange between the Centre and the State. Thus, ISC provides a forum and acts as a cooling chamber thereby controlling the controversies which may take poor forms.
- This platform gives the state a chance to bargain for more powers. Example – the implementation of recommendation of Sarkaria commission reports.
- Discussions and deliberations: Being a constitutional body it offers a sound platform for discussing key issues and prospects. For example- subjects in the state list and concurrent list.
- Bridging trust deficit: It acts as a tool of confidence building between the two administrative units. Therefore, sowing the seeds of cooperation.
- Demanding assistance: It is the duty of the centre to give heed to the needs of the states if any crisis arises. This platform is appropriate for this. It thus helps in maintaining cordial relations between the two.
2.The need for ISC, when NITI Aayog has similar body: The question arises that as the governing body in the NITI Aayog has similar composition then what is the need for ISC? The answer is that ISC has a constitutional backing. NITI Aayog is established by the mandate of the executive. Also, NITI Aayog can decide on schemes, policies whereas ISC can decide on permanent matters which alters centre-state relations like recommendations of committees. Thus, both the bodies will have separate matters to deal with.
3.Scope of Article 263: The ISC is not a permanent constitutional body for coordination between the states and Central government. Rather, The President can establish it at any time if it appears to him that the public interests would be served by the establishment of such a council. The Constitution has made a comprehensive provision relating to the discharge of certain functions on matters having an inter-State dimension.
Article 263 provides as follows: “If at any time it appears to the President that the public interests would be served by the establishment of a Council charged with the duty of:
- Inquiring into and advising upon disputes which may have arisen between States;
- Investigating and discussing subjects in which some or all of the States or the Union and one or more of the States, have a common interest; or
- Making recommendations upon any such subject and, in particular, recommendations for the better co-ordination of policy and action with respect to that subject, it shall be lawful for the President by order to establish such a Council, and to define the nature of the duties to be performed by it and its organisation and procedure.”
Thus, the provisions of Article 263 are inclusive and comprehensive. The Constitution does not envisage an executive role for the ISC. Its ambit would be an admixture of the consultative, cognitive, normative and advisory functions. The Constitution does not empower the Inter-State Council to adjudicate the inter-State disputes, but it would be called upon to inquire into and advise upon such disputes. The findings of the inquiry as well as the advice of the ISC would be available to contending States as well as to Union Government and Parliament. The recommendations of the Council should be given highest respect and consideration. In addition to this, the Council would also study and investigate subjects of common interest for the States and the Centre and would make recommendations for the better co-ordination of policy and action. The Council would thus provide basic background data for research on federal problems.[20]
INTER-STATE COUNCIL TOWARDS STRENGTHENING THE FEDERAL STRUCTURE- AN ANALYSIS
Indian Federalism is very complex in nature and any reasonably complicated federation is bound to have some frictions. Most of the institutional architecture of Indian federalism is focused on relations between the Union government and the states. Even Articles 258 and 258A,[21] can be seen as an attempt to provide space for state governments to legislate in areas that are usually the territory of the union, and vice versa. The ISC goes a long way in strengthening the Indian Federalism:
- ISC will enable decentralized decision making. Such decentralized decision making is strengthened with a discussion-based approach in the policy making.
- An increased cooperative relationship between centre and states can be achieved, through the ISC.
- There will be a proper implementation and execution of central and state schemes that can reach to and have an impact at grass roots levels and hence will be efficient in the “bottom up” approach.
- There will be increased accountability and enthusiasm, thereby making the executives proactive in their work and can lead to efficient decision making.
- There will be valuable implementation because of discussions of disputes on various subjects which have been shifted in the concurrent lists like education, forests, implementation of GST etc.
- As it is chaired by the Prime Minister himself along with the Chief Ministers of the respective states, the value of the discussions will get enhanced.
- The Intrusion of the Governors and their adventurism many a times leads to dislodging democratically elected governments and has thus led to frustration and distrust among the states. The ISC gives a place where the views and suggestion of state Chief Ministers can be deliberated to the centre.
- It will aid in bridging the communication gap between the centre and the states.
- There will be engagement with the opposition and embracing the opposition is a healthy sign of democracy which keeps a check on the executive.
- Judiciary can decide on matters affecting the centre-state relations on a case to case basis. It results in significant administrative and financial loss.
- ISC can help in mutually deciding upon the use of article 356 and other such constitutional matters which at times are a reason for friction between the centre and the states.
- ISC will play an important role in bridging the trust deficit between the centre and the states and can jointly decide on the devolution of funds.
CONCLUSION
In India’s federal polity a working centre-state relationship is the cornerstone for the successful implementation of many schemes. The ISC, with its constitutional mandate can go a long a way in making this happen. ISC can also be a core component of the newly emerging cooperative federalism. Thus, there is a need to nurture this institution, and hold regular meetings. If our policy makers are able to make best use of it ISC will prove to be very significant in establishing effective federalism in the nation as well as all round development of our motherland.
REFERENCES
[1] Researcher, B.S.L., L.L.B., L.L.M., Alumnae of Savitribai Phule Pune University. Contact No.-9920180124
[2] 7th Schedule of the Constitution
[3] Krishna Iyer, Constitutional Miscellany, 68, (2nd Edition, Eastern Book Company, 2003)
[4] 7th Schedule, Constitution of India
[5] S. R. Maheshwari, “Centre-State Relations“, The Sunday Statesman Magazine, October 2, 1977, p. 1.
[6] Cambridge dictionary
[7] Douglas V. Verney, “Emerging Federal Processes in India,” The Journal of Federalism (fall of 2003) p. 33
[8] Johari J. C., Indian Government and Politics, Delhi, 1977, page no. 405
[9] Chanchal Kumar, ‘Federalism in India: A Critical Appraisal,’ Journal of Business Management & Social Sciences Research (JBM&SSR), Volume 3, No.9, September 2014, p. 39
[10] Article 4 of the Constitution of India
[11] Supra note 9
[12] Morris-Jones, The Government and Politics of India, 1996, p.16
[13] ibid
[14] Roshni Duhan, ‘Federal system in India and the Constitutional Provisions’, Innovare Journal of Social Science, Vol 5, Issue 1, 2016 p. 1
[15] Article 3 of the Constitution of India
[16] Article 154 of the Constitution of India
[17] Supra note 7
[18] P.M. Bakshi, “Constitutional Mechanisms for Settlement of Inter-state Disputes”, National Commission to review the working of the constitution, July 2001.
[19] The Report of the Study Team on Centre State Relationships, Administrative Reforms Commission, 1968, Vol. 1, p. 294
[20] Chandra Pal, Inter-State Council: Effective Solution for Centre-State Problems, p. 388, Cochin Law Review
[21] Inserted by 7th Amendment Act to the Constitution of India.