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Subject: Polity

  • 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on the other, that the customary use of the forests by the villagers was not a ‘right’, but a ‘privilege’ that could be withdrawn at will.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.

  • Moving away from parliamentary scrutiny

    The article discusses the important role played by the various committees and their significance.

    Committee system for legislative scrutiny

    • Over the years, the Indian Parliament has increasingly adopted the committee system as did the other democracies in the world.
    • This helped in housekeeping, to enhance the efficacy of the House to cope with the technical issues confronting it and to feel the public pulse.
    • But the committee approach also helped to guard its turf and keep it abreast to exercise accountability on the government.

    Important role played by the committees

    • Committees are the guardians of the autonomy of the House: consider the role of committees of scrutiny and oversight.
    • In the discharge of their mandate, the committee can solicit expert advice and elicit public opinion.
    • Besides the standing committees, the Houses of Parliament set up, from time to time, ad hoc committees to enquire and report on specific subjects which include Select Committees of a House or Joint Select Committees of both the Houses.
    • Departmentally-related Standing Committees (DRSCs)  were envisaged to be the face of Parliament in a set of inter-related departments and ministries.

    Issues

    • Committees of scrutiny and advice, both standing and ad hoc, have been confined to the margins or left in the lurch in the last few years.
    • While 60% of the Bills in the 14th Lok Sabha and 71% in the 15th Lok Sabha were wetted by the DRSCs concerned, this proportion came down to 27% in the 16th Lok Sabha.
    • The government has shown extreme reluctance to refer Bills to Select Committees of the Houses or Joint Parliamentary Committees.

    Conclusion

    The government must not forget that the primary role of Parliament is deliberation, discussion and reconsideration, the hallmarks of democratic institutions, and not a platform that endorses decisions already arrived at.

    Back2Bascis: Parliamentary Committees

    Broadly, they are classified into two categories — standing committees and ad hoc committees.

    1) Standing Committees

    • As the name suggests, these committees cover all the ministries and departments of the Government of India.
    • Standing committees are more permanent in nature, and are constituted from time to time in pursuance of the provisions of an Act of Parliament or Rules of Procedure and Conduct of Business in Lok Sabha.
    • The standing committees are further divided into financial committees and departmentally-related standing committees (DRSCs).
    • There are 24 DRSCs in total — 16 from Lok Sabha and 8 from the Rajya Sabha.
    • Financial committees are of three kinds — the estimates committee, the public accounts committee and the committee on public undertakings.

    2) Ad hoc committees

    • Ad hoc committees are appointed for a specific purpose and they cease to exist after they finish the task assigned to them and submit a report.
    • These include advisory committees and inquiry committees.
    • Advisory committees include select and joint committees on bills.
    • Inquiry committees are constituted to inquire into a specific issue and report on it.

  • What are Lok Adalats?

    A daily wager in Odisha has moved the Lok Adalat against PM after he allegedly failed to get an Aadhaar card registered in his name despite 21 attempts.

    Try this PYQ:

    Q. With reference to National Legal Services Authority, consider the following statements:

    1. Its objective is to provide free and competent legal services to the weaker sections of the society on the basis of equal opportunity.
    2. It issues guidelines for the State Legal Services Authorities to implement the legal programmes and schemes throughout the country.

    Which of the statements given above is/are correct?

    (a) 1 only

    (b) 2 only

    (c) Both 1 and 2

    (d) Neither 1 nor 2

    What are Lok Adalats?

    • Lok Adalat (People’s Court) is an alternative dispute resolution mechanism.
    • The forum can settle cases pending on panchayat or at a pre-litigation stage in a court of law.
    • The decisions have statutory status under the Legal Services Authorities Act, 1987.
    • Under this Act, the award (decision) made by the Lok Adalats is deemed to be a case of a civil court, final and binding for all parties, and not subject to appeal.
    • It has broad powers to devise its procedures, compared to national courts.
    • If the parties do not recognise the Lok Adalat (though there is no provision for an appeal against such a prize), they may initiate litigation by approaching the court of appropriate jurisdiction.

  • Parliament is not just about technicalities, deference to process builds trust

    The article deals with the issue of importance of parliamentary procedures and how it has been neglected in the passage of several Bills recently.

    2 contexts that explain the crisis Parliament faces

    1) Neglecting the procedure

    • Three simple procedural matters are the cornerstone of parliamentary practice.
    • The first is Question Hour, which was suspended.
    • Even in taking that decision, the Speaker did not accede to the demand for a division.
    • The second is referring bills to committees.
    • It is increasingly the case with important pieces of legislation that they are not being either referred to committees, nor are they being fully debated in Parliament.
    • The third and most important is “division.”
    • If a member of a House asks for a division of votes, the Speaker needs to grant it.
    • The Speaker can refuse under some circumstances, but even then he has to take something like an informal headcount vote before refusing division.

    2) Substantive context

    • There are three bills relating to agriculture that have occasioned serious protests.
    • There are three far-reaching pieces of legislation pertaining to labour reform.
    • Each of these bills can be improved and crafted in ways that make them more the object of consensus.
    • The bills pertaining to agriculture were debated, ffter the debate,  deputy chairperson refusesed a division.
    • By allowing a division we would at least record where each member of Parliament stood on a question of monumental importance.

    Concerns

    • We seem to not want to give flexibility to states when it comes to farmers.
    • Flexibility is given to states, in the most unrestrained manner possible, when it comes to the interest of capital against labour.
    • It seems that the hurried interests of corporate India take precedence over farmers and labour, rather than a well negotiated social contract between all three.

    Why the farmers are concerned

    • A lot of the farmers’ legitimate fear is that in a fiscal crunch, MSP will be rolled back or procurement curtailed.
    • There is genuine uncertainty over what private procurement will mean.

    Way forward

    • It is also possible that in the case of the APMC, a more creative solution could have been found for concerns of the states, like an opt-out clause for them.
    • In case of amendments to labour laws, there is need to examine whether it fulfils the twin objectives of both protecting workers and being compliance-friendly at the same time.

    Conclusion

    Some deference to process can build trust because it is a sign of a government that listens. At least on the APMC this was a possibility. Let us hope on labour bills there is more reasoned deliberation. Parliamentary practice will not be able to knit an enduring social contract between labour, capital and farmers if it does not inspire confidence.

  • Explained: Suspension of Members of Parliament

    Recently eight Rajya Sabha MPs were suspended for unruly behaviour in the House.

    Try this PYQ:

    Q.Consider the following statements:

    1. Speaker of the legislative assembly shall vacate his/her office of he/she ceases to be a member of the assembly
    2. Whenever the legislative assembly is dissolved the speaker shall vacate his/her office immediately

    Which of the statements given above is/are correct? (CSP 2018)

    a) 1 only

    b) 2 only

    c) Both 1 and 2

    d) Neither 1 not 2

    What is the reason for suspending an MP?

    • The general principle is that it is the role and duty of the Presiding Officer — Speaker of Lok Sabha and Chairman of Rajya Sabha — to maintain order so that the House can function smoothly.
    • In order to ensure that proceedings are conducted in the proper manner, the Speaker/Chairman is empowered to force a Member to withdraw from the House.

    What are the rules under which the Presiding Officer acts?

    • Rule Number 373 of the Rules of Procedure and Conduct of Business provides for the suspension of MPs by the Speaker of the House.
    • To deal with more recalcitrant Members, the Speaker make take recourse to Rules 374 and 374A.
    • Rule 374 says: The Speaker may, if deems it necessary, name a Member who disregards the authority of the Chair or abuses the rules of the House by persistently and wilfully obstructing the business thereof.
    • Rule 374A was incorporated in the Rule Book on December 5, 2001. The intention was to skirt around the necessity of moving and adopting a motion for suspension.

    Procedure in Rajya Sabha

    It’s largely similar, with one important difference.

    • Like the Speaker in Lok Sabha, the Chairman of Rajya Sabha is empowered under Rule Number 255 of its Rule Book to “direct any Member whose conduct is in his opinion grossly disorderly to withdraw immediately” from the House.
    • Unlike the Speaker, however, the Rajya Sabha Chairman does not have the power to suspend a Member. The House may, by another motion, terminate the suspension.
    • The Chairman may “name a Member who disregards the authority of the Chair or abuses the rules of the Council by persistently and wilfully obstructing” business.
    • In such a situation, the House may adopt a motion suspending the Member from the service of the House for a period not exceeding the remainder of the session.

    Is suspending an MP a decent practice?

    • It is a strong action, but it is not uncommon. In general, a balance has to be struck.
    • There can be no question that the enforcement of the supreme authority of the Presiding Officer is essential for smooth conduct of proceedings.
    • However, it must be remembered that the job of the Presiding Officer is to run the House, not to lord over it.

    Alternatives to suspension

    • The solution to unruly behaviour has to be long-term and consistent with democratic values.
    • A previous Speaker had ordered that television cameras be focussed on the demonstrating members so that people could see for themselves how their representatives were behaving in the House.

    Present situation

    • In the present case, however, the Opposition has accused the Chairman of stopping the telecast of the proceedings in Rajya Sabha.
    • What cannot be denied is that Speaker’s/Chairman’s actions are often dictated more by expediency and the stand of the party that they belong to, rather than by the Rules and principles.
    • So, the ruling party of the day invariably insists on the maintenance of discipline, just as the Opposition insists on its right to protest. And their positions change when their roles flip.

  • Roles, functions and limitations of Parliamentary Committees

    The government pushed through two crucial agriculture Bills in Rajya Sabha, rejecting Opposition demands to refer them to a Select Committee of Rajya Sabha.

    Try this PYQ:

    With reference to the Parliament of India which of the following Parliamentary Committees scrutinizes and reports to the House whether the powers to make regulations, rules, sub-rules, bylaws, etc. conferred by the Constitution or delegated by the Parliament are being properly exercised by the Executive within the scope of such delegation?(CSP 2018)

    (a) Committee on Government Assurances

    (b) Committee on Subordinate Legislation

    (c) Rules Committee

    (d) Business Advisory Committee

    What is a Parliamentary Committee?

    • It means a Committee which is appointed or elected by the House or nominated by the Speaker and which works under the direction of the Speaker and presents its report to the House or to the Speaker and the Secretariat for which is provided by the Lok Sabha Secretariat.

    By their nature, Parliamentary Committees are of two kinds: Standing Committees and Ad hoc Committees.

    1. Standing Committees are permanent and regular committees which are constituted from time to time in pursuance of the provisions of an Act of Parliament or Rules of Procedure and Conduct of Business in Lok Sabha. The work of these Committees is of continuous nature. The Financial Committees, DRSCs and some other Committees come under the category of Standing Committees.
    2. Ad hoc Committees are appointed for a specific purpose and they cease to exist when they finish the task assigned to them and submit a report. The principal Ad hoc Committees are the Select and Joint Committees on Bills. Railway Convention Committee, Joint Committee on Food Management in Parliament House Complex etc also come under the category of ad hoc Committees.

    Why need Parliamentary Committee?

    • Parliament scrutinizes legislative proposals (Bills) in two ways. The first is by discussing it on the floor of the two Houses.
    • This is a legislative requirement; all Bills have to be taken up for debate.
    • The time spent debating the bills can vary. They can be passed in a matter of minutes, or debate and voting on them can run late into the night.
    • Since Parliament meets for 70 to 80 days in a year, there is not enough time to discuss every Bill in detail on the floor of the House.

    Its role in the passage of a Bill

    • The debate in the house is mostly political and does not go into the technical details of a legislative proposal.
    • The second mechanism is by referring a Bill to a parliamentary committee. It takes care of the legislative infirmity of debate on the floor of the House.
    • However, referring to Bills to parliamentary committees is not mandatory.

    And what is a Select Committee?

    • India’s Parliament has multiple types of committees.
    • They can be differentiated on the basis of their work, their membership and the length of their tenure. First are committees that examine bills, budgets and policies of ministries.
    • These are called departmentally related Standing Committees. There are 24 such committees and between them, they focus on the working of different ministries.
    • Each committee has 31 MPs, 21 from Lok Sabha and 10 from Rajya Sabha.
    • The main purpose is to ensure the accountability of Government to Parliament through a more detailed consideration of measures in these committees.
    • The purpose is not to weaken or criticize the administration but to strengthen by investing in with more meaningful parliamentary support.

    When does a committee examine a Bill?

    • Bills are not automatically sent to committees for examination. There are three broad paths by which a Bill can reach a committee.
    • The first is when the minister piloting the Bill recommends to the House that his Bill be examined by a Select Committee of the House or a joint committee of both Houses.
    • Last year Electronics and IT Minister moved a motion in Lok Sabha referring the Personal Data Protection Bill to a Joint Committee.
    • If the minister makes no such motion, it is up to the presiding officer of the House to decide whether to send a Bill to a departmentally related Standing Committee.

    What happens when a bill goes to a Committee?

    • Sending a Bill to any committee results in two things.
    • First, the committee undertakes a detailed examination of the Bill. It invites comments and suggestions from experts, stakeholders and citizens.
    • The government also appears before the committee to present its viewpoint.
    • All this results in a report that makes suggestions for strengthening the Bill. While the committee is deliberating on a Bill, there is a pause in its legislative journey.
    • It can only progress in Parliament after the committee has submitted its report. Usually, parliamentary committees are supposed to submit their reports in three months, but sometimes it can take longer.

    What happens after the report?

    • The report of the committee is of a recommendatory nature. The government can choose to accept or reject its recommendations.
    • Very often the government incorporates suggestions made by committees. Select Committees and JPCs have an added advantage.
    • In their report, they can also include their version of the Bill. If they do so, the minister in charge of that particular Bill can move for the committee’s version of the Bill to be discussed and passed in the House.

  • Power, problems and potential of federalism

    The article analyses the issues of distribution of powers under the Constitution and the issues linked with it.

    Debate on the role of Centre and states

    • There is an argument for the need to re-examine the distribution of powers under the Seventh Schedule so as to rationalise the Centrally Sponsored Schemes (CSSs).
    • Under the Centrally Sponsored SchemesCentre extends support in sectors pertaining to the State List.
    • Spending by the Centre on a state subject like health and need for states’ contribute to a Union subject like defence is considered.
    • However, the constitutional assignments between the Centre and subnational governments in federations, are done broadly on the basis of their respective comparative advantage.
    • That is why the provision of national public goods is in the federal domain and those with the state-level public service span are assigned to the states.

    3 settled issues in the debate

    • The debate seems to have settled on at least three counts.
    • One, the federal organisation of powers can be revisited and reframed.
    • Two, the CSSs must continue but they should be restructured.
    • Three, there is a need for an appropriate forum to discuss the complex and contentious issue of reviewing federal organisation of powers and restructuring of central transfers.

    Review of the subjects in lists

    • In spite of health being a state subject, the response to collective threats linked to the subject required some kind of organisation of federal responsibilities on a functional basis.
    • A typical response is to recommend shifting subjects to the Concurrent List to enable an active role for the Centre.
    • The High-Level Group, constituted by the 15th Finance Commission, recommended shifting health from the State to the Concurrent List.
    • A similar recommendation was made earlier by the Ashok Chawla Committee for water.

    Challenges

    • Shifting of subjects from the State to Concurrent List in times of acute sub-nationalism, deep territorialisation and competitive federalism is going to be challenging.

    Way forward

    • The most collective threats and the challenges of coping with emerging risks of sustainability are linked to either the State List subjects or require actions by states — water, agriculture, biodiversity, pollution, climate change.
    • This extended role of ensuring security against threats to sustainability of resources forms a new layer of considerations.
    • This should define the contours of a coordinated response between the Centre and States — as it happened during the pandemic.
    • In fact, such threats and challenges require the states to play a dominant role.
    • At the same time, the Centre must expand its role beyond the mitigation of inter-state externalities and address the challenges of security and sustainability.

    Consider the question “The federal organisation of powers under the Constitution’s Seventh Schedule needs review. In light of this, examine the problems faced by the distribution and suggest the challenge the review would face.”

    Conclusion

    The ongoing friction between the Centre and the states over GST reforms tells us that consensus-building is not a one-time exercise. It has to allow sustained dialogue and deliberation. Perhaps it is time to revisit the proposal for an elevated and empowered Inter-State Council.

  • What is Queen’s Counsel?

    India has suggested Pakistan appointing a Queen’s Counsel for the Kulbhushan Jadhav case to ensure a free and fair trial.

    Queen’s Counsel

    • In the UK and in some Commonwealth countries, a Queen’s Counsel during the reign of a queen is a lawyer who is appointed by the monarch of the country to be one of ’Her Majesty’s Counsel learned in the law’.
    • The position originated in England.
    • Some Commonwealth countries have either abolished the position, or re-named it so as to remove monarchical connotations, for example, ’Senior Counsel’ or ’Senior Advocate’.
    • Queen’s Counsel is an office, conferred by the Crown that is recognised by courts.
    • Senior Advocate Harish Salve earlier this year has been appointed as Queen’s Counsel (QC) for the courts of England and Wales.

  • Nationalism and the crisis of federalism

    The article analyses the challenges federalism in India faces and the important role played by the division of states based on the languages.

    Three conceptions of nationalism in India

    • Following three conceptions of nationalism were prevalent in India before independence.
    • The first, the idea that a community with a strongly unified culture must have a single state of its own.
    • The second saw the nation as defined by a common culture whose adherents must have a state of their own.
    • But this common culture was not ethno-religious.
    •  It conceives common culture in terms of a strong idea of unity that marginalises or excludes other particular identities.
    • A third nationalism accepts that communities nourished by distinct, territorially concentrated regional cultures have the capacity to design states of their own as also educational, legal, economic, and other institutions.
    • This may be called a coalescent nationalism consistent with a fairly strong linguistic federalism.
    • The central state associated with it is not multi-national.
    • At best, it is a multi-national state without labels, one that does not call itself so; a self-effacing multi-national state.

    Suspicion of linguistic identities

    • After Partition, the Indian ruling class began to view with suspicion the political expression of even linguistic identities.
    •  It was feared that federation structured along ethno-linguistic lines might tempt politicians to mobilise permanently on the basis of language.
    • The second fear was about an increase in the likelihood of inter-ethnic violence, encourage separatism and eventually lead to India’s break up.
    • Thus, when the Constitution came into force in 1950, India adopted unitary, civic nationalism as its official ideology.

    Formation of states on linguistic basis and its implications

    • A unitary mindset shaped by the experience of a centralised colonial state was resurrected.
    • The second tier of government was justified in functional terms, not on ethical grounds of the recognition of group cultures.
    • Following the Committee’s recommendations, States were reorganised in 1956.
    • India slowly became a coalescent nation-state, moving from the ‘holding together’ variety to what is called the ‘coming together’ form of (linguistic) federalism.
    • This meant that regional parties were stronger than earlier in their own regions and at the centre.
    • This let to more durable centre because it was grounded more on the consent and participation of regional groups that, at another level, were also self-governing.
    • Indian federalism also attempted to remove its rigidities by incorporating asymmetries in the relation between the Centre and different States.
    • Treating all States as equals required the acknowledgement of their specific needs and according them differential treatment.

    Conclusion

    Coalescent nationalism has served India well, benefiting several groups in India. True, it has not worked as well in India’s border areas such as the North-east and Kashmir. But their problems can only be resolved by deepening not abandoning coalescent nationalism.