Advocate Piyush Hans

While on one hand recently recovered from Covid – 19 virus, Mr Boris Jhonson, Prime Minister England finally published their 50-page ‘road map’ plotting a route through three stages to get the country up and running followed by guidance for health and safety in workplaces. All workers are being urged to return to duties in sectors such as food production, construction, manufacturing, logistics, distribution and scientific research in laboratories.

On the other hand PM Modi showing utmost respect in Federal Structure of Indian Constitution took about 5th Meeting with all CM’s of different States/ Provinces today 11th May, 2020. The confusion remains in the public as what was revealed out of this meeting was atleast 5 CM’s including Maharashtra, Bihar, Punjab, Assam and Rajasthan amongst others demanded for further 4th Lockdown from 17th May, 2020 onwards, however PM did not reveal any plans regarding extension of lockdown after 17th May. Interestingly, Gujarat  one of the severely affected State demanded for lifting of Lockdown. Amid all this tension it was notable that Resumption of Train and Air services from today was also criticized by some states (including Bihar, WB and Telangana). It can’t go without keeping a watch at attitude of these states some days back when they cried hard for economical crisis and allowed liquor vends to open, that resulted heavy rush outside stores / liquor vends, further resulted increased chances of transition / infection thereby caused compromise with lifecycle of human, however had to shut after criticism. While Punjab allowed online sales of liquor, Madras High court directed to shut liquor vends in the state and advised online sales of liquor to safeguard economy. Besides, states also demanded for financial assistance from the Centre amid Covid crisis.

The nationwide lockdown has been in force since March 25 to contain the spread of the virus, which has killed more than 2,200 people and afflicted more than 67,000 in the country by 11th May, 2020 midnight.

Though there is division of functions between Centre and states in a federation, but there is no country which may be said to have ‘pure’ federalism in sense of there being a complete dichotomy of functions, or a complete equality of status, between the Centre and the States. Federalism ensures elimination of disparities and promotes equal opportunities for positive. Federalism is a constitutional arrangements of division of powers between two layers of Govt.

India, amongst largest Democracies of the world has a Federal Structure of the Govt., however the word “Federal” is not used anywhere in the Constitution of India. Hard fact remains, while living standards in various states do not reach levels of dignity and they fall far below the satisfactory level in some other. Unless a meaningful coordination is evolved amidst the bearers of responsibility, the chance of doing good would be at stake. As per the preamble of Constitution, India is a Sovereign Socialist Secular Democratic Republic and nowhere in the Constitution, India is described as a “federal nation”. Some scholars has called Indian Constitution as extremely –federal, however with unitary feature of the most.

Our Constitution has Article 248: with regard to residuary powers of legislation; Article 249: power of Parliament to legislate with respect to a matter in the state list in national interest; Article 250: If there is any national emergency, Parliament has the right to make laws with respect to State subjects automatically; Article 253: parliament can make laws on State Lists to comply with the international agreements; Article 257(2) giving directions to a state; Article 271: surcharge on certain duties and taxes not to be shared with the states; Article 356: In the case of president’s rule in state all the powers will be handed over to Parliament; Article 160: Parliament can give some financial orders or can order to reserve money bills passed by states; Article 256: Centre can give administrative directions to the States;

Indian Constitution has given overriding powers to Central Govt.. States exercise their executive power in compliance with laws made by Central Govt. and not allowed to impede on executive power of the Union within the States. Importantly, the Executive head of States i.e. “Governors” are also appointed by Central Govt. Centre can take over the executive of States on issues of “national security” or “breakdown of constitutional machinery” of State. Due to these overriding powers of Union Govt. the Constitution is often been described as ‘quasi-federation’, ‘semi-federation’, ‘pragmatic federation’, “bargaining federalism” or a ‘federation with strong unitary features’. Therefore it can be said that the Constitution of India is neither purely federal nor purely unitary but is a combination of both.

On top of confusion over Federal structure of Indian Constitution, the judicial precedents have completed the remaining task.

While the Kesvananda Bharti (1973) judgment of 13 Judges of Apex Court, minority judgment of 3 judges of hid Lordships J. Sikri, J Shelat and J Grover, opined the “federal character of the constitution is the basic feature of the Constitution of India and therefore Parliament even under its amending powers u/Art 368 can’t get away with basic features. Further Constitution Bench in S.R. Bomai and and Shamsher Singh’s case noted federal character of the Constitution of India is overlaid by strong “unitary” features.

Arrangement of GST in 2017 was a perfect example of Co-operative Federalism, between the Center and States, as for each and every decision a co-ordination between the Center and States was necessary, however some scholars have also called it as “Controlled Federalism” or a “Conflict Federalism”.

During Constituent Assembly Debates on dated 30th December, 1948, while speaking in favor of provincial autonomy, Mr Pocker Sahib Bahadur said(as recorded in Volume 7), even from 1919 onwards when the Britishers were ruling, Provincial Autonomy was considered to be one of the objects of the Reforms. Now after we have won freedom, to do away with Provincial Autonomy and to concentrate all the powers in the Centre really is tantamount to totalitarianism, which certainly ought to be condemned. It has become order of day to call a dog by a bad name and hang it. Well, if some group of persons agitate for protecting their rights as a group, it is called communalism and it is condemned. If Provinces want Provincial Autonomy to be secured to allow matters peculiar to them to be dealt with by themselves, well, that is called provincialism, and that is also condemned. If people press for separation of linguistic Provinces it is called separatism and it is condemned. But I only wish that these gentlemen who condemn these ‘isms’ just take into consideration what the trend of events is. It is leading to totalitarianism; they ought to condemn that in stronger language. But I am afraid that the result of the condemnation of these various ‘isms’, namely communalism, provincialism and separatism, is that it leads to totalitarianism or even fascism. If there are separate organisations for particular groups of people who think in a particular way, well, that is condemned as communalism or as some other ‘ism’. If all kinds of opposition are to be got rid of in this sort of way, well, the result is that there is totalitarianism of the worst type, and that is what we are coming to having regard to the provisions in this Draft Constitution as they stand.

We become spectator for 5 years after each elections and left with no recourse available to set things right within the Govt. except knocking the Judiciary. Now when the game is set between the Union and States, at one hand to criticize each other and on other to plan their moves post 17th May, 2020. The “real test” of federal character and unitary solutions lies in somewhere between decisions of both these entities(Union and States) equipped with wide powers but to use the constitutional machinery in their best way.

Although for quite some time it is seen that India has been closely following patterns of World Leaders, however this time those so called world leaders and their respective Govt.’s are subject matter of criticism for their uncontented steps to combat Covid – 19. All eyes set on next move of the Govt. tonight and behavior of different states post 8PM tonight. Let’s see if get a solution within the ambit of undefined interpreted Federalism or we get a new definition of Federalism tonight?

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