Spirit of federalism lies in consultation

Unilateral legislation without taking States into confidence will see more protests on the streets

September 07, 2021 12:27 am | Updated 12:27 am IST

United front:  People attending a meeting as part of the farmers' protest against the farm laws in Muzaffarnagar, Uttar Pradesh, on Monday.  Reuters

United front: People attending a meeting as part of the farmers' protest against the farm laws in Muzaffarnagar, Uttar Pradesh, on Monday. Reuters

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 of the Constitution. Kerala Chief Minister Pinarayi Vijayan stated that it is not in the essence of federalism for the Union government to legislate unilaterally, avoiding discussions with the States on the subjects in the Concurrent List. Tamil Nadu Chief Minister M.K. Stalin raised the issue by calling on other Chief Ministers against the Union government usurping powers under the State and Concurrent Lists. The Kerala Legislative Assembly unanimously passed a resolution against the Electricity (Amendment) Bill, 2020, while the Tamil Nadu Legislative Assembly passed a resolution against the controversial farm laws. The States and the Legislative Assemblies standing up for their rights assumes significance in the wake of the Union government introducing a number of laws without taking the States into confidence, thereby undermining the federal principles.

Around a year back, Parliament passed the farm laws without consulting the States. The laws, essentially related to Entry 14 (agriculture clause) belonging to the State List, were purportedly passed by Parliament citing Entry 33 (trade and commerce clause) in the Concurrent List. According to various decisions of the Supreme Court, beginning from the State of Bombay vs F.N. Balsara case, if an enactment falls within one of the matters assigned to the State List and reconciliation is not possible with any entry in the Concurrent or Union List after employing the doctrine of “pith and substance”, the legislative domain of the State Legislature must prevail.

The farm laws were passed by Parliament even as it does not have legislative competence to deal with agriculture. The lack of consultation in a matter that intrinsically deals with millions of farmers also led to massive protests that, incidentally, still continue in streets across India.

‘Redundancy of local laws’

When the Major Ports Authorities Act, 2021, was passed by Parliament earlier this year, even the Bharatiya Janata Party (BJP)-ruled State government in Goa objected to the law, stating that it would lead to the redundancy of the local laws, including the Goa Town and Country Planning Act, the Goa Municipalities Act, the Goa Panchayat Raj Act, the Goa Land Development and Building Construction Regulations, 2010, and the Goa Land Revenue Code.

When it comes to non-major ports, the field for legislation is located in Entry 31 of the Concurrent List. According to the Indian Ports Act, 1908, which presently governs the field related to non-major ports, the power to regulate and control the minor ports remained with the State governments. However, the new draft Indian Ports Bill, 2021, proposes to change the status quo by transferring the powers related to planning, developing and regulating the non-major ports to the Maritime State Development Council (MSDC), which is overwhelmingly controlled by the Union government. Coastal States like Odisha, Andhra Pradesh, Tamil Nadu and Kerala have objected to the Bill that proposes to seize the power of the State government with respect to non-major ports.

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), which were ostensibly manned by individuals appointed by the State government.

However, the proposed amendment seeks to change the regulatory regime from head-to-toe with the establishment of a National Selection Committee, dominated by members nominated by the Union government that will make appointments to the SERCs. Further, the amendment proposes the establishment of a Centrally-appointed Electricity Contract Enforcement Authority (ECEA) as the sole authority having jurisdiction over matters regarding the performance of obligations under a contract related to the sale, purchase or transmission of electricity.

In effect, the power to regulate the electricity sector would be taken away from the State government. This is apart from other proposed changes, including changing the licensing regime to facilitate private sector entry without State government approval.

Cause of concern

The Union government increasingly extending its hands on subjects in the Concurrent List is a cause of grave concern as the balance of the Constitution is now turned on its head. The model envisioned in the Government of India Act, 1935, was adopted by the framers of the Constitution and certain subjects were put in the Concurrent List by giving the Union and the State Legislatures concurrent powers regarding them.

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. However, one of the worst fears of Constituent Assembly member K.T.M. Ahmad Ibrahim Sahib Bahadur has now come true, with subjects in the Concurrent List being transferred to the Union List over a period of time due to the Union government’s high-handedness.

The Sarkaria Commission Report had specifically 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 and cooperation is, therefore, a prerequisite of smooth and harmonious working of the dual system”. It was 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.

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.

As 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. The intention of the framers of the Constitution is to ensure that public welfare is subserved and the key to that lies in listening to stakeholders. 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.

Mukund P. Unny is an advocate practising in the Supreme Court.

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