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Subject: Polity

  • The federalism test

    The GST has been hailed as the grand bargain and the success story of the federalism. But the economic disruption caused by the pandemic has put it to test. The article deals with the issue of GST compensation.

    Compensating the loss of GST revenue: 2 options

    • In the 41st meeting of the GST Council, the Union government had presented the states with two options.
    • The Centre had estimated the states’ total loss of GST revenue at Rs 3 lakh crore, of which, Rs 65,000 crore was expected to accrue from the compensation cess.
    • Of the remaining Rs 2.35 lakh crore, the loss due to the pandemic was estimated at Rs 1.28 lakh crore.
    • The first option was to provide states a special window to borrow Rs 97,000 crore from the RBI, which was later revised to Rs 1.1 lakh crore.
    • Under this option, both the interest payments and the repayments would be made from future collections of the compensation cess.
    • In the second option, the entire shortfall of Rs 2.35 lakh crore could be borrowed from the market and the states would have to bear the interest costs, but the repayments would be adjusted against future collections of the cess.
    • 10 states have rejected both the options and have stated that it is the Centre’s responsibility to compensate the states, and therefore, it should borrow.

    Commitment of the Centre

    • The minutes of the 7th and 8th GST Council meeting show that most of the states wanted the Centre to commit on paying compensation from the Consolidated Fund of India (CFI).
    • On that demand the Union Finance Minister had stated that in case the amount in the GST compensation fund falls short of the compensation payable in any bi-monthly period, the GST Council shall decide the mode of raising additional resources including borrowing from the market which could be repaid by the collection of cess in the sixth year or further subsequent years.
    • Thus, there was a clear commitment of the Centre on the issue of compensation and the method of recouping the loss.

    Impact on the Centre-State relations

    • The payment of compensation has plunged the Union-state relationship to a new low.
    • First, not recognising the Centre’s commitment will make states wary of any future reforms involving an agreement with the Centre.
    • Second, giving selective press statements to pressurise the states into accepting one or the other option does not infuse confidence.
    • Third, there was a statement by the Union finance ministry officials that the GST Council does not have jurisdiction over-borrowing and borrowing is an individual state and Centre’s decision under Article 293 of the Constitution.
    • If so, why were the two borrowing options presented to the states in the meeting of the Council?

    Way forward

    • It is the Centre’s commitment to find the compensation mechanism and borrowing is one of the options — that must be discussed in the Council.
    • Furthermore, if the commitment of the Centre is recognised as admitted by the finance minister in the 7th GST council meeting, the Centre should take the responsibility to borrow.
    • Both interest payments and repayment of the principal liability can be met from future collections from the cess.

    Conclusion

    This issue is of immense significance for the future of Centre-state relations. But pressuring states on the basis of political strength will have adverse consequences for the country’s federal structure.

  • Redefining cities

    The article the need for liberal and realistic definition of the ‘urban’ area in the next Census and mention the implications of such change.

    2 ways to define urban areas

    1) Statutory town

    • These towns are defined by state governments and place India’s urbanisation rate at 26.7%.
    • A statutory town includes all places with a municipality, corporation, cantonment board or notified town area committee.

    2) Census-based criteria

    • Census adopts three criteria to define what is urban.
    • The three criteria are:
    • i) a minimum population of 5,000;
    • ii) at least 75% of the male main working population engaged in non-agricultural pursuits, and
    • iii) a density of population of at least 400 persons per sq km
    • This, coupled with statutory towns, pegs India’s urbanisation rate at 31%.
    • Total number of towns (state and census) stands at 7,933, together constituting a 377-mn population.

    Why there is a need for changing the definition of ‘urban’

    • There is growing evidence—mostly from satellite imagery—that India is way more urban than the 2011 Census estimate.
    • This is quite plausible because there is a large sum of money allocated for rural development, and it is in the interest of state governments to under-represent urbanisation.
    • Besides, the Census’s stringent definition was first carved out in 1961 which do not reflect the realities of the 21st century.
    • India won’t be alone in changing these definitions for Census 2021.
    • Many countries, such as China, Iran, the UK, among others, have changed the definition of ‘urban’ from one census to another.

    Getting the right picture of urbanisation

    •  A more liberal and realistic definition in the upcoming census will present the actual picture of urbanisation.
    • For instance, if we just use the population density criteria like 37 other countries, with the 400 people per sq km threshold, we will add around 500 mn people to the urban share of the population.
    • This pegs the urbanisation rate at over 70%!

    What will be its implications?

    • First, the budgetary allocation will reflect the reality and scales will balance between rural and urban areas.
    • Second, the urban areas will not be governed through rural governance structures of Panchayati Raj Institutions.
    • Third basic urban infrastructure like sewerage networks, fire services, building regulations, high-density housing, transit-oriented development, piped drinking water supply.
    • Fourth, these newly defined urban areas could act as a new source of revenue for funding local infrastructure development.
    • This would ease pressure on state finances.
    • Lastly, the rethink of urban definition would have an impact on the regional and national economy.
    • These newly defined urban areas will open them to new infrastructure such as railway lines, discom services, highway connectivity, creation of higher education institutes which will together increase the connectivity and resource capability at the local level.
    • This will not only boost the local economy but also ease pressure on bigger cities and help in cluster level development.

    Conclusion

    A rethink of urban definition in Census 2021, particularly with some degrowth in urban areas due to Covid, will bode well for India for coming decades in more ways than one.

    Source:-

    https://www.financialexpress.com/opinion/redefining-cities-a-new-urban-consensus/2102154/

  • Right to Protest

    The Supreme Court has found the indefinite “occupation” of a public road by the Shaheen Bagh protestors unacceptable.

    Right to Protest

    • The right to protest is the manifestation of the right to freedom of assembly, the right to freedom of association, and the right to freedom of speech.
    • The Constitution of India provides the right of freedom, given in Article 19 with the view of guaranteeing individual rights that were considered vital by the framers of the constitution.
    • The Right to protest peacefully is enshrined in Article 19(1) (a) guarantees the freedom of speech and expression; Article 19(1) (b) assures citizens the right to assemble peaceably and without arms.
    • Article 19(2) imposes reasonable restrictions on the right to assemble peaceably and without arms.

    What did the Court say?

    • The court said the protest, considered an iconic dissent mounted by mothers, children and senior citizens of Shaheen Bagh against the Citizenship (Amendment) Act, became inconvenient to commuters.
    • The judgment upheld the right to peaceful protest against the law but made it unequivocally clear that public ways and public spaces cannot be occupied, and that too indefinitely.
    • Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone.
    • The present case was not even one of the protests taking place in an undesignated area but was a blockage of a public way which caused grave inconvenience to commuters.

    Reasonable restrictions do exist in practice

    • Fundamental rights do not live in isolation. The right of the protester has to be balanced with the right of the commuter. They have to co-exist in mutual respect.
    • The court held it was entirely the responsibility of the administration to prevent encroachments in public spaces.

  • What India can learn from Kenya about women’s representation

    Asymmetric representation in India and Kenya has given rise to complex debate in both countries. The article analyses the similarities and difference.

    Issue of women’s representation in Parliament

    • Many political promises have been made in seven decades of the working of the Indian Constitution regarding 33 per cent reservation in Parliament.
    • But the two bills, introduced in 1996 and 2010, have been allowed to lapse.

    What are the hurdles?

    • Every political party endorses the idea but the battle within political classes has been over “quota within a quota”.
    • Some have argued that ways should be found to ensure that this reservation should contain 33 per cent reservation within for SC and ST women.
    • Some have championed a systemic practice of reservation at the stage of distributing party tickets.
    • Some continue to fight for underprivileged and rural women.
    • Some maintain that a constitutional convention mandating increased representation for women by parties will be more appropriate than a constitutional amendment.

    Comparison with Kenya

    • While both fall short in equitable representation, Kenya has secured about 22 per cent women in the present National Assembly.
    • India peaked to its highest number in the 2019 elections with 62 women (around 14.58 per cent),out of a total of 542 Lok Sabha seats.
    • In the Kenyan Senate women number only 21 (or 31 per cent) of the 67-member House are female; in the Indian Rajya Sabha women comprise 25 out of 243 elected members.
    •  In both societies, women’s representation has always been “pyramidical”, most women remain below the constitutional radar at the bottom, even when a few scale national heights.
    • Asymmetric representation in both societies has generated a long and complex debate concerning women’s representation.

    Difference in constitutional histories and judicial actions

    • India has nothing like the two-thirds rule in Kenya’s new constitution.
    • Kenya’s Constitution requires that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.
    • But the 2010 constitutional norm of a “two-thirds gender rule”, buttressed by the requirement that the electoral system shall comply with this rule has been breached.
    • The judicial orders (from 2012) giving various timeframes to enact legislation to implement gender parity have found Parliament unresponsive.
    •  The stage was thus set for the exercise of constitutional power and function by the chief justice to advise the president to dissolve Parliament.
    • This was a great victory for the Kenyan women.

    Conclusion

    Indian sisterhood can yearn wistfully, but valiantly, for another Vishakha moment in the demosprudential leadership of the nation by the apex court.

  • Labour code reforms address basic needs

    The article highlights the key provision of the labour code and how it will help in removing the various hurdles faced by the key stakeholders.

    Increase in the threshold for closure/lay-off and its impact

    • The Industrial Relations Code 2020 increased the threshold for retrenchment/closure or lay-off without requiring government approval, from 100 to 300 workers.
    • This will help in addressing the matter of expansion of the firms.
    • In 2014, Rajasthan had increased the threshold of taking prior permission of the government before retrenchment.
    • The reform has helped firms to set up larger operations in Rajasthan, and the same amendment was followed by 15 states.

    Fixed Term Employment(FTE): Ensuring flexibility and tackling exploitation

    • In many jobs employees are required for a few months such as infrastructure projects, textiles and garments, food and agro-processing, etc.
    • However, the contractual employment workforce is quite often exploited with respect to wages, social security, and working conditions as well as welfare facilities.
    • Fixed Term Employment is an intervention to enable the hiring of employees directly instead of hiring through contractors, which will ensure flexibility.
    • For employees, all statutory entitlements and service conditions equivalent to those of a regular employee have now been made applicable.
    • The Code on Industrial Relations also extends the benefit of gratuity even for an FTE contract of one year, which is five years in the case of regular employees.

    Strengthening the formal economy

    • The inclusion of the gig and platform workers in the Social Security Code 2020 is a step towards strengthening the formal economy.
    • The provision for insurance coverage has been extended to plantation workers, and free annual health check-ups and a bipartite safety committee has been introduced for establishments such as factories, mines and plantation sectors in place of hazardous factories.
    • The ESIC and EPFO requirements will now apply to establishments employing less than 10 and 20 workers respectively on a volunteer basis.

    Ensuring female labour force participation

    • Falling women’s workforce participation in India has been a matter of concern for a long time.
    • Female labour force participation is a driver of growth and, therefore, participation rates indicate the potential for a country to grow more rapidly.
    • The new Code ensures the employment of women in night shifts for all types of work.

    Expansions of the provisions for migrant workers

    • The Occupational Health, Safety & Working Conditions Code expands the definition of a migrant worker.
    • The expanded definition includes workers who would be directly employed by the employer besides those employed through a contractor.
    • Also a migrant, who comes on his own to the destination state, can declare himself a migrant worker by registering on an electronic portal.
    • Registration on the portal has been simplified and there is no requirement of any other document except Aadhaar.
    • For de-licencing/de-registration, it is mandated to notify registering officers about the closure of their establishment and certify payment of dues to all employed workers.
    • This will ensure that workers will not be exploited even during the closure of the concerned establishment.

    Other provisions

    • The introduction of a concept of conducting web-based inspections can be seen as an attempt of matching corporate needs in the digital world.
    • The provision for a 14-day notice period before strikes and lockdowns would allow both workers and employers to attempt resolving the issues.
    •  The codes also promote lifelong learning mechanism to match the evolving skill sets required for technology and process changes through the introduction of a reskilling fund.

    Consider the question “What are the various provision added in the three labour code and how it will help revive the economy and tackle barriers in the expansion of firms?”

    Conclusion

    The reform measures address basic needs — to revive the economy and tackle barriers in the expansion of firms. Moreover, they promote the employment of women as well as reskilling of the workforce for the deployment of migrants.

  • Legal challenges the Farm Acts could face

    Farm Acts passed by the Parliament could face the legal hurdle in the court when challenged on its constitutional basis. This article explains the issue.

    Background

    • Recently, Parliament passed three acts related to agriculture. These Acts are-
    • 1) The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020.
    • 2) The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020.
    • 3) The Essential Commodities (Amendment) Act, 2020.
    • This has led to the question: Does the Union government have the authority to legislate on what are rightfully the affairs of States?

    Why agriculture is considered as States’ prerogative

    • Agriculture is a State subject in the Constitution, listed as Entry 14 in the State List (List II).
    • Entry 26 in the State List refers to “trade and commerce within the State”.
    • Entry 27 in the State List refers to “production, supply and distribution of goods”.
    • Entry 28 refers to “markets and fairs”.
    • For these reasons, intra-State marketing in agriculture was always considered a legislative prerogative of States.

    What was the legal basis used by the Parliament to pass the Farm Acts

    • The central government invoked Entry 33 in the Concurrent List (List III).
    • Entry 26 and 27 in List II are listed as “subject to the provisions of Entry 33 of List III”.

    Entry 33 in List III: Trade and commerce in, and the production, supply and distribution of, — (a) the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in the public interest, and imported goods of the same kind as such products; (b) foodstuffs, including edible oilseeds and oils; (c) cattle fodder, including oilcakes and other concentrates; (d) raw cotton, whether ginned or unginned, and cotton seed; and (e) raw jute.

    Historical background of  “Entry 33” of Concurrent List

    • Entry 33, in its present form, was inserted in List III through the Constitution (Third Amendment) Act, 1954 after heated constitutional debates.
    • The contention of the dissent was the following:
    • As per Article 369 in the original version of the Constitution, the responsibility of agricultural trade and commerce within a State was temporarily entrusted to the Union government for a period of five years beginning from 1950.
    • The 1954 Amendment attempted to change this into a permanent feature in the Constitution.
    • According to dissident “if matters enumerated in Article 369 in were placed in List III, State autonomy would be rendered illusory and State powers and rights would be progressively pulverised
”.
    • While another dissident argued that “passage of the Bill would transform the Indian Constitution into a “unitary Constitution” instead of a “federal Constitution” and reduce “all the States’ powers into municipal powers”.
    • Notwithstanding the strong dissenting voices, the Bill was passed.

    Let’s look into the related Supreme Court Judgments

    • In many of its judgments after 1954, the Supreme Court of India has upheld the legislative powers of States in intra-State agricultural marketing.
    • Most notable was the ruling of the five-judge Constitution Bench in I.T.C. Limited vs. Agricultural Produce Market Committee (APMC) and Others, 2002.
    • The Tobacco Board Act, 1975 had brought the development of the tobacco industry under the Centre.
    • However, Bihar’s APMC Act continued to list tobacco as an agricultural produce.
    • In this case, the question was if the APMC in Monghyr could charge a levy on ITC for the purchase of unprocessed tobacco leaves from growers.
    • An earlier judgment had held that the State APMC Act will be repugnant to the Central Act, and hence was ultra vires.
    • But the Constitution Bench upheld the validity of the State APMC Act, and ruled that market fees can be charged from ITC under the State APMC Act.

    Consider the question “Examine the validity of legal basis used by the Parliament to pass the Farm Acts. Why it could face the legal challenge?”

    Conclusion

    It was unwise on the part of the Centre to use Entry 33 in List III to push the Farm Bills. Such adventurism weakens the spirit of federal cooperation that India needs in this hour of crisis. Second, agriculture is exclusively a State subject.

    Back2Basics: Read more about 3 Agricultural Acts passed by the Parliament here-

    [Burning Issue] Agricultural Reform Bills, 2020

     

  • Narco Test and the Issue of Consent

    Involuntary administration of narco or lie detector tests is an “intrusion” into a person’s “mental privacy,” a Supreme Court judgment of 2010 has held.

    Try this question:

    Q.What are the ethical issues associated with the Lie-detection tests?

    Various Lie detector tests

    (1) Polygraph Test

    • A polygraph test is based on the assumption that physiological responses that are triggered when a person is lying are different from what they would be otherwise.
    • Instruments like cardio-cuffs or sensitive electrodes are attached to the person, and variables such as blood pressure, pulse, respiration, change in sweat gland activity, blood flow, etc., are measured as questions are put to them.
    • A numerical value is assigned to each response to conclude whether the person is telling the truth, is deceiving, or is uncertain.

    (2) Narcoanalysis

    • Narcoanalysis, by contrast, involves the injection of a drug, sodium pentothal, which induces a hypnotic or sedated state.
    • In such a state, the subject’s imagination is neutralized, and they are expected to divulge information that is true.
    • The drug, referred to as “truth serum” in this context, was used in larger doses as anaesthesia during surgery and is said to have been used during World War II for intelligence operations.

    Why these tests are so (in)famous?

    • Investigating agencies seek to employ these tests in the investigation, and are sometimes seen as being a “softer alternative” to torture or “third degree” to extract the truth from suspects.
    • These tests put into consideration the international norms on human rights, the right to a fair trial, and the right against self-incrimination under Article 20(3) of the Constitution.

    Legal status in India

    • In ‘Selvi & Ors vs State of Karnataka & Anr’ (2010), a Supreme Court Bench comprising CJI ruled that no lie detector tests should be administered “except on the basis of the consent of the accused”.
    • Those who volunteer must have access to a lawyer, and have the physical, emotional, and legal implications of the test explained to them by police and the lawyer, the Bench said.
    • It said that the ‘Guidelines for the Administration of Polygraph Test on an Accused’ published by the National Human Rights Commission in 2000, must be strictly followed.
    • The subject’s consent should be recorded before a judicial magistrate, the court said.

    What was the latest Judgement?

    • Involuntary administration of narco or lie detector tests is an “intrusion” into a person’s “mental privacy,” a Supreme Court judgment of 2010 has held.
    • The consequences of such tests on “individuals from weaker sections of society who are unaware of their fundamental rights and unable to afford legal advice” can be devastating.
    • It may involve future abuse, harassment and surveillance, even leakage of the video material to the Press for a “trial by media.”
    • Such tests are an affront to human dignity and liberty and have long-lasting effects.
    • “An individual’s decision to make a statement is the product of a private choice and there should be no scope for any other individual to interfere with such autonomy,” the apex court had held.

    Legal status of its outcome

    • The results of the tests cannot be considered to be “confessions”, because those in a drugged-induced state cannot exercise a choice in answering questions that are put to them.
    • However, any information or material subsequently discovered with the help of such a voluntarily-taken test can be admitted as evidence, the court said.
    • Thus, if an accused reveals the location of a murder weapon in the course of the test, and police later find the weapon at that location, the statement of the accused will not be evidence, but the weapon will be.

  • Should India have one national Language?

    The article discusses the issues with excessive attention given to Hindi and how the neglect of another language could lead to the loss of language and the way of life associated with it as well.

    Debate in Constituent Assembly and issues in the adoption of Hindi

    • The issue of adopting a national language could not be resolved when the Constituent Assembly began drafting India’s Constitution.
    • Members from the Hindi-speaking provinces who moved a number of pro-Hindi amendments and argued for adopting Hindi as the sole national language.
    • Widespread resistance to the imposition of Hindi led to the passage of the Official Languages Act of 1963, which provided for the continued use of English for all official purposes.
    • Hindi became the sole working language of the Union government by 1965 with the State governments free to function in the language of their choice.
    • The constitutional directive for the Union government to encourage the spread of Hindi was retained within Central government entities in non-Hindi-speaking States.

    Issues with the Eighth Schedule

    • According to the 2001 Census, India has 30 languages that are spoken by more than a million people each.
    • The Constitution lists 22 languages and protects them in the eighth schedule.
    • Many languages are kept out of this schedule even if they deserve to be included.
    • This includes Tulu which is spoken by over 1.8 million people and has inscriptions dating back to the 14th and 15th centuries.
    • While Hindi, a much younger Indo-Aryan language, has been gaining prominence since before independence.
    • When a refined language loses its status in literary and daily interactions, the way of life associated with it also vanishes.
    • The Census found that while Hindi is the fastest growing language, the number of speakers of other languages has dropped.

    Way forward

    • While discussing Hindi and its use, let us also focus on the merit of other Indian languages.
    • Instead of focusing on one national language, we should learn a language beyond the mother tongue and get to know a different way of life too.

    Conclusion

    If we don’t protect and promote other well-evolved or endangered and indigenous languages, our future generations may end up never understanding their ‘real’ roots and culture

  • Maharashtra modifies Forest Rights Act

    Maharashtra government has issued a notification modifying the Forest Rights Act (FRA), 2006 that will enable tribals and other traditional forest dwelling families to build houses in the neighbourhood forest areas.

    Try this question for mains:

    Q.Forest dwellers are integral to the very survival and sustainability of the forest ecosystem. Analyse.

    Historical Background

    1878: The Forest Act of 1878 was introduced and it truncated the centuries-old traditional use by communities of their forests and secured the colonial governments control over the forestry. The provision of this Act established a virtual State monopoly over the forests in a legal sense on one hand, and attempted to establish, on the other, that the customary use of the forests by the villagers was not a ‘right’, but a ‘privilege’ that could be withdrawn at will.

    1927:  The Indian Forest Act, 1927. In continuance with the forest use policy of 1878, this landmark law – India’s main forest law, had nothing to do with conservation. It was created to serve the British need for timber. It sought to override customary rights and forest management systems by declaring forests state property and exploiting their timber.

    1952: ‘National interests’ overrode all interests and forests were viewed as a national asset. It was made clear that local priorities and interests and claims of the communities around forest areas should be subservient to larger national interests

    About the FRA, 2006

    • The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, is a key piece of forest legislation in India.
    • It has also been called the Forest Rights Act, the Tribal Rights Act, the Tribal Bill, and the Tribal Land Act. In the colonial era, the British diverted abundant forest wealth of the nation to meet their economic needs.
    • While the procedure for settlement of rights was provided under statutes such as the Indian Forest Act, 1927, these were hardly followed.
    • As a result, tribal and forest-dwelling communities, who had been living within the forests in harmony with the environment and the ecosystem, continued to live inside the forests in tenurial insecurity, a situation which continued even after independence as they were marginalised.
    • The symbiotic relationship between forests and forest-dwelling communities found recognition in the National Forest Policy, 1988.
    • The FRA, 2006, was enacted to protect the marginalised socio-economic class of citizens and balance the right to the environment with their right to life and livelihood.

    What empowers the Governor?

    • The notification has been issued by the Governor using his powers under subparagraph (1) of paragraph 5 of the Schedule V of the Constitution, according to a statement issued by Raj Bhavan.
    • PESA rules in the State have given recognition to many habitations as villages, but there is no provision for land for house-building.

    Significance of the move

    • The decision is likely to provide a major relief to Scheduled Tribes and other traditional forest-dwelling families residing in the scheduled areas of the State.
    • The urban areas get increased FSI, the rural areas (on revenue lands) get the same too, but tribal villages (on forest lands) have no legal space for building houses.
    • The move aims to prevent the migration of forest-dwelling families outside their native villages and provide them with housing areas by extending the village site into forest land in their neighbourhood.

    Back2Basics: Fifth Schedule of the Constitution

    • It deals with the administration and control of Scheduled Areas as well as of Scheduled Tribes residing in any State other than the States of Assam, Meghalaya, Tripura and Mizoram (ATM2).
    • In Article 244(1) of the Constitution, expression Scheduled Areas means such areas as the President may by order declare to be Scheduled Areas (SA).

    The President may at any time by order-

    1. direct that the whole or any specified part of SA shall cease to be a SA or a part of such an area;
    2. increase the area of any SA in a State after consultation with the Governor of that State;
    3. alter, but only by way of rectification of boundaries, any Scheduled Area;
    4. on any alteration of the boundaries of a State on the admission into the Union or the establishment of a new State, declare any territory not previously included in any State to be, or to form part of, a SA;
    5. rescind, in relation to any State of States, any order or orders made under these provisions and in consultation with the Governor of the State concerned, make fresh orders redefining the areas which are to be SA.
    • The Governor may, by public notification, direct that any particular Act of Parliament or of the Legislature of the State shall or shall not apply to a SA or any part thereof in the State, subject to such exceptions and modifications, as specified.
    • The Governor may make regulations for the peace and good government of any area in the State which is for the time being a SA. Such regulations may
    1. prohibit or restrict the transfer of land by or among members of the Scheduled Tribes in such area;
    2. regulate the allotment of land to members of the STs in such area;
    3. regulate the carrying on of business as money-lender by persons who lend money to members of the STs in such area.

    In making such regulations, the Governor may repeal or amend any Act of Parliament or of Legislature of the State or any existing law after obtaining the assent of the President.

  • Explained: Farm Acts and federalism

    The President has finally given assent to the controversial farm Bills passed by Parliament last week. Amid protests by farmers’ organisations across the country, questions are being raised about the anti-federal nature of these ‘Acts’.

    Here we shall only discuss its constitutionality and federal nature. Tap to read more about the theme at:

    What is the question over the constitutionality of these laws?

    • These are some of the questions that will be raised in the petitions challenging the constitutionality of the Acts.
    • As per Union of India v H.S.Dhillon (1972), the constitutionality of parliamentary laws can be challenged only on two grounds — that the subject is in the State List, or that it violates fundamental rights.
    • As per Ram Krishna Dalmia v Justice S R Tendolkar (1958) and other judgments, the Supreme Court will begin hearings after presuming the constitutionality of these laws.
    • The bills (now Acts as they have got the President’s assent) do not mention, in the Statement of Objects & Reasons, the constitutional provisions under which Parliament has the power to legislate on the subjects covered.

    Where does the question of federalism come in?

    What is federalism, first?

    • Federalism is the system of government in which sovereignty is constitutionally divided between a central governing authority and constituent political units.
    • It is based upon democratic rules and institutions in which the power to govern is shared between national and state governments, creating a federation.
    • It essentially means both the Centre and states have the freedom to operate in their allotted spheres of power, in coordination with each other.

    Try this PYQ:

    Q.Which of the following federal principles are not found in Indian federation?

    1. Bifurcation of the judiciary between the Federal and State Governments
    2. Equality of representation of the states in the upper house of the Federal Legislature
    3. The Union cannot be destroyed by any state seceding from the Union at its will
    4. Federal Government can redraw the map of the Indian Union by forming new States

    Select the correct answer using the codes given below:

    a) 1, 2 and 3

    b) 2, 3 and 4

    c) 1 and 2

    d) 3 and 4

    Federalism in India

    • The Seventh Schedule of the Constitution contains three lists that distribute power between the Centre and states.
    • There are 97 subjects in the Union List, on which Parliament has exclusive power to legislate (Article 246); the State List has 66 items on which states alone can legislate.
    • The Concurrent List has 47 subjects on which both the Centre and states can legislate, but in case of a conflict, the law made by Parliament prevails (Article 254).
    • Parliament can legislate on an item in the State List under certain specific circumstances laid down in the Constitution.

    Concretization of the idea

    • Federalism, like constitutionalism and separation of powers, is not mentioned in the Constitution. But it is the very essence of our constitutional scheme.
    • In the State of West Bengal v Union of India (1962), the Supreme Court held that the Indian Constitution is not federal.
    • But in SR Bommai v Union of India (1994), a nine-judge Bench held federalism as part of the basic structure of the Constitution.
    • Neither the relative importance of the legislative entries in Schedule VII, Lists I and II of the Constitution, nor the fiscal control by the Union per se is decisive to conclude the Constitution is unitary.
    • The respective legislative powers are traceable to Articles 245 to 254
 The State qua the Constitution is federal in structure and independent in its exercise of legislative and executive power,” it said.

    Where is agriculture in the scheme of legislative powers?

    Terms relating to agriculture occur at 15 places in the Seventh Schedule.

    1. Entries 82, 86, 87, and 88 in the Union List mention taxes and duties on income and assets, specifically excluding those in respect of agriculture.
    2. In the State List, eight entries contain terms relating to agriculture: Entry 14 (agricultural education and research, pests, plant diseases); 18 (rights in or over land, land tenures, rents, transfer agricultural land, agricultural loans, etc.); 28 (markets and fairs); 30 (agricultural indebtedness); 45 (land revenue, land records, etc.); 46 (taxes on agricultural income); 47 (succession of agricultural land); and 48 (estate duty in respect of agricultural land).
    3. In the Concurrent List, Entry 6 mentions the transfer of property other than agricultural land; 7 is about various contracts not relating to agricultural land; and 41 deals with evacuee property, including agricultural land.
    • It is clear that the Union List and Concurrent List put matters relating to agriculture outside Parliament’s jurisdiction, and give state legislatures exclusive power.
    • No entry in respect of agriculture in the State List is subject to any entry in the Union or Concurrent Lists.

    What about Entry 27 of the State List that is subject to Entry 33 of List III (Concurrent)?

    • Entry 33 of the Concurrent List mentions trade and commerce, production, supply and distribution of domestic and imported products of an industry over which Parliament has control in the public interest.
    • This includes foodstuffs, including oilseeds and oils; cattle fodder; raw cotton and jute.
    • The Centre could, therefore, argue that it is within its powers to pass laws on contract farming and intra- and inter-state trade, and prohibit states from imposing fees/cesses outside APMC areas.
    • However, like education, farming is an occupation, not trade or commerce.
    • If foodstuffs are considered synonymous with agriculture, then all the powers of states in respect of agriculture, listed so elaborately in the Constitution, shall become redundant.

    So what happens in case of legislation that covers entries in two Lists?

    • In cases such as State of Rajasthan v G Chawla (1959), courts have used the doctrine of “pith and substance” to determine the character of legislation that overlaps between entries.
    • The constitutionality of legislation is upheld if it is largely covered by one list and touches upon the other list only incidentally.
    • But the two new farm Acts go beyond that — they impinge on entries in the State List.
    • In interpreting the lists, the Supreme Court in State of Bihar v Kameshwar Singh (1952) invoked the doctrine of colourable legislation, which means you cannot do indirectly what you cannot do directly.

    What is the Doctrine of Colorable Legislation?

    • This doctrine refers to the question of competency of the legislature while enacting a provision of law.
    • If a legislature is prohibited from doing something, it may not be permitted to do this under the guise or pretence of doing something while acting within its lawful jurisdiction and this prohibition is an implied result of the maxim “what cannot be done directly, cannot be done indirectly”
    • This doctrine is a tool used to determine the legislative competence of laws enacted by various legislatures.
    • Therefore, it is a means to implement the separation of powers and impose judicial accountability.