1. What is the concurrent list and how it benefits?
2. What are the issues surrounding concurrent list and federalism
3. What steps are suggested by various commissions to eliminate discretion of centre wrt concurrent list
The Constitution provides a scheme for demarcation of powers through three ‘lists’ in the seventh schedule. The aim of the concurrent list was to ensure uniformity across the country where independently both centre and state can legislate. Thus, a model law with enough flexibility for states was originally conceived in the constitution. Also, few concurrent list subjects required huge finances needing both centre and state to contribute.
However, there is increasing centralization of power vis a vis Concurrent list which is axiomatic-
- Since 1950, the Seventh Schedule of the Constitution has seen a number of amendments.
- The Union List and Concurrent List have grown while subjects under the State List have gradually reduced.
- The 42nd Amendment Act, restructured the Seventh Schedule ensuring that State List subjects like education, forest, protection of wild animals and birds, administration of justice, and weights and measurements were transferred to the Concurrent List.
- The PV Rajamannar Committee also spurred other states to voice their opposition to this new power relation born due to the 42nd amendment act and Centre’s encroachment on subjects that were historically under the state list. Parliament on concurrent list items i.e. in case of conflict; a central law will override state law.
Issues with Concurrent list-
- Time and again centre-state relations come under scanner due to rising demands from various corners of the country for more power devolution in favor of states. More recently on the TOR of 15th Finance commission.
- Limited capacity of states: Some laws enacted by Parliament in the concurrent list might require state governments to allocate funds for their implementation. But due to federal supremacy while the states are mandated to comply with these laws they might not have enough financial resources to do so.
- Balance between flexibility and uniformity: Some laws leave little flexibility for states to sync the laws according to their needs for achieving uniformity. A higher degree of detail in law ensures uniformity across the country and provides the same level of protection and rights, however, it reduces the flexibility for states to tailor the law for their different local conditions.
- Infringement in the domain of states: Some Bills may directly infringe upon the rights of states i.e. relates to central laws on subjects that are in the domain of state legislatures. E.g. anti-terrorist laws, Lokpal bill, issues with GST and Aadhar etc. where states’ power are taken away in a cloaked manner.
- This asymmetry highlights the need for a detailed public debate on federalism and treatment of items in the concurrent list.
What can be done-
- Strengthening of Inter-State Council: Over the year committees starting from Rajamannar, Sarkaria and Punchi have recommended strengthening of Interstate Council where the concurrent list subjects can be debated and discussed, balancing Centre-State powers. There is far less institutional space to settle inter-state frictions, therefore, a constitutional institution like ISC can be a way forward.
- Autonomy to states: Centre should form model laws with enough space for states to maneuver. Centre should give enough budgetary support to states so as to avoid budgetary burden. There should be least interference in the state subjects.
Sarkaria Commission Recommendation on Concurrent List
1. The residuary powers of taxation should continue to remain with the Parliament, while the other residuary powers should be placed in the Concurrent List.
2. The Centre should consult the states before making a law on a subject of the Concurrent List.
3. Ordinarily, the Union should occupy only that much field of a concurrent subject on which uniformity of policy and action is essential in the larger interest of the nation, leaving the rest and details for state action.