Parliament – Sessions, Procedures, Motions, Committees etc

Spirit of federalism lies in consultation

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Concurrent List

Mains level : Paper 2- Federalism and Concurrent List

Context

Recently, various State governments raised concerns about Central unilateralism in the enactment of critical laws on subjects in the Concurrent List of the Seventh Schedule.

Objection of the state against Centre legislating on the subject in Concurrent List without consulting States

  • Unilateral legislation on subjects in Concurrent list: Kerala Chief Minister stated that it is not in the essence of federalism for the Union government to legislate unilaterally, on the subjects in the Concurrent List.
  • Encroaching on powers of States: Tamil Nadu Chief Minister raised the issue by calling on other Chief Ministers against the Union government encroaching on powers under the State and Concurrent Lists.
  • The Kerala Legislative Assembly unanimously passed a resolution against the Electricity (Amendment) Bill, 2020.
  • The Tamil Nadu Legislative Assembly passed a resolution against the controversial farm laws.

Background of the Concurrent List

  • The Concurrent List gives the Union and the State Legislatures concurrent powers to legislate on the subjects contained in it.
  • Purpose of Concurrent List: The fields in the Concurrent List were to be of common interest to the Union and the States, and the power to legislate on these subjects to be shared with the Union so that there would be uniformity in law across the country.

Union government extending its control on subjects in the Concurrent List and State list

1) Farm laws: Encroaching on the powers of States

  • Parliament passed the farm laws without consulting the States.
  • State List subject: The laws, essentially related to Entry 14 (agriculture clause) belonging to the State List.
  • However, Parliament passed the law citing Entry 33 (trade and commerce clause) in the Concurrent List.
  • Against legal principle set by the Supreme Court: The Supreme Court, beginning from the State of Bombay vs F.N. Balsara case, said that if an enactment falls within one of the matters assigned to the State List and reconciliation is not possible with an entry in the Concurrent or Union List after employing the doctrine of “pith and substance”, the legislative domain of the State Legislature must prevail.

2) Major Port Authorities Act 2021 and Indian Ports Bill: Centre taking away the power of State

  • The Major Ports Authorities Act, 2021, was passed by Parliament earlier this year.
  • Goa objected to the law, stating that it would lead to the redundancy of the local laws.
  • Concurrent List subject: When it comes to non-major ports, the field for legislation is located in Entry 31 of the Concurrent List. 
  • The Indian Ports Act, 1908, presently governs the field related to non-major ports.
  • As per the Indian Ports Act, 1908, the power to regulate and control the minor ports remained with the State governments.
  • The new draft Indian Ports Bill, 2021, proposes the Maritime State Development Council (MSDC), which is overwhelmingly controlled by the Union government.

3) Electricity (Amendment) Bill,2020: Centre taking away powers of State

  • Various States like West Bengal, Tamil Nadu and Kerala have also come forward against the Electricity (Amendment) Bill, 2020.
  • The field related to electricity is traceable to Entry 38 of the Concurrent List.
  • The power to regulate the sector was vested with the State Electricity Regulatory Commissions (SERCs), members of which were appointed by the State government.
  • The proposed amendment seeks to establish National Selection Committee, dominated by members nominated by the Union government that will make appointments to the SERCs.
  • The amendment also proposes the establishment of a Centrally-appointed Electricity Contract Enforcement Authority (ECEA).
  • In effect, the power to regulate the electricity sector would be taken away from the State government.

Way forward

  • Consultation with States: The National Commission to Review the Working of the Constitution (NCRWC), or the Venkatachaliah Commission, had recommended that individual and collective consultation with the States should be undertaken through the Inter-State Council established under Article 263 of the Constitution.
  • Coordination of policy and action in concurrent jurisdiction: The Sarkaria Commission Report had recommended that there should be a coordination of policy and action in all areas of concurrent or overlapping jurisdiction through a process of mutual consultation.
  • Limit powers to ensuring uniformity: The Sarkaria Commission further recommended that the Union government, while exercising powers under the Concurrent List, limit itself to the purpose of ensuring uniformity in basic issues of national policy and not more.
  • Responsibility of Centre: The Supreme Court itself had held in the S.R. Bommai vs Union of India case, the States are not mere appendages of the Union.
  • The Union government should ensure that the power of the States is not trampled with.

Consider the question “There has been instances of protest by the State government against Centre legislating unilaterally on subjects in Concurrent List. What are the implications of this for the federalism? Suggest the way forward.”

Conclusion

The essence of cooperative federalism lies in consultation and dialogue, and unilateral legislation without taking the States into confidence will lead to more protests on the streets.

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