Federalism, a ruse

The anguish expressed by different parties over the trampling of the states’ rights is an excuse to block the anti-corruption law.

Certain shibboleths are invoked time and again to put a façade on the real intention. This is exactly the case with federalism over which not only the Opposition parties but also some constituents of the UPA lambasted the Lokpal and Lokayuktas Bill, 2011 introduced in Parliament in the last winter session. In fact, the session was specially extended to pass the bill but the issue of federalism proved to be the Gordian knot which could not be untied.

These parties fulminated against the provision to set up the institution of lokaykta in states under Article 253 of the Constitution which empowers Parliament to make law for the whole or any part of the territory of India. They, instead, wanted such a law made under Article 252 under which Parliament can legislate for two or more states with their consent and the legislation may be adopted by any other state.

Federalism is a basic feature of the Constitution as held by the Supreme Court in S R Bommai vs Union (1994). It was for the first time that the presidential notification under Article 356 was tested on the touchstone of the basic structure doctrine though earlier only constitutional amendments were put to such a test. However, the Supreme Court as itself accepted it in a catena of decisions that India is a quasi-federal state. It is so because the Union has been bequeathed many overriding powers over the state. The most draconian of these powers is given under Article 356 under which the Union can dismiss any state government.

Parliament can legislate for states in the national interest (Article 249) or during the pendency of Emergency (Article 250). Articles 252 and 253 are such provisions but the difference is that under Article 252,states are not enjoined to legislate but under Article 253, it is mandatory for states to make the law accordingly. Several laws have been made under Article 253 earlier also like The Administrative Tribunals Act, 1985; The Consumer Protection Act, 1986; The Protection of the Human Rights Act, 1993; The Right to Information Act, 2005, etc., but no brouhaha was created. However, in the present Lokpal Bill,setting up of the office of Lokayukta by the state has been made optional.

In such a case, some states may never create such an office as happened in the case of human rights commission.

Not much use was made of Article 253 for about two decades after the commencement of the Constitution, but recourse to it is being taken quite frequently since mid-1970s. Almost all legislations pertaining to environment have been made under it. Besides, laws relating to TRIPS in conformity with WTO are being enacted under it.

However, questions have been raised about the desirability and legality of the treaties becoming operative and binding without prior or subsequent participation of Parliament in their making. That is why, the National Commission to Review the Working of the Constitution (2002) recommended the involvement of people’s representatives in Parliament in the exercise of the treaty making power of the government as treaties may encroach upon the rights of the states or even of the Union.

After a failed experiment

In fact, modern sovereign nation-states emerged in the wake of the treaty of Westphalia (1648) at the collapse of the Austro-German Holy Roman Empire. The first modern federal nation-state came into existence in 1787 in the aftermath of the failed experiment of The Articles of Confederation (1777) created by the Continental Congress. The attempt at confederation failed as the centre proved to be too weak to hold the states.

So, a decade later, the Philadelphia Convention (1787) created a Constitution which was characterised by a sense of nationalities that was more regionalist than nationalist.

Commenting on the US federal system in 1939, Harold Laski predicted the death of federalism saying that “the epoch of federalism was over, and that only a centralised system can effectively confront the problems of the new time.”

After independence, India opted for a strong Centre to check fissiparous tendencies as the independence had been achieved at the cost of country’s vivisection and several provinces were crying hoarse for freedom. So, the Union was given many powers which should not have been given under normal circumstances as some of these powers legitimately belong to states. All India services like the IAS, IPS, etc., are also an anathema to federalism as even the selection is done by the UPSC and officers are foisted on states.

It is a unique feature of the Indian Constitution which is not found in any other country. But since it was adopted by the Constituent Assembly, and Sardar Patel spoke eloquently in its favour, not much noise was made. Still, four states had demanded the abolition of all India services before the Sarkaria Commission. Similar is the case with the judiciary. The subordinate judiciary works under the high court which is not set up by the state and its judges are appointed by the Centre.

However, there has been a paradigm shift after 1989 when the first coalition government took over at the Centre. Now, states have become quite powerful and regional satraps dictate terms to even the prime minister. So, the Union government cannot crush the rights of states as was common under one-party rule. Now, there is no misuse of Article 356 which was earlier imposed at the drop of a hat.

Therefore, states are quite strong and the Centre cannot misbehave with them. However, quite clearly, the anguish expressed by different parties over the encroachment of the jurisdiction of states is only a shenanigan to block the anti-corruption law. It is a bitter truth that no party wants the Lokpal to be set up, and so, everyone has a coruscating argument to block it.