Our Constitution is more unitary than federal.
History was written on 26 January 1950 when India was declared a Republic, based on a Constitution declaring it a Union of States. For the first time, a diverse land stretching from Kashmir to Kanyakumari and from Kutch to Kohima, saw a common flag flutter over it. With over 600 princely kingdoms coming together and joining erstwhile British India, a unified Bharat was formed in which the writ of one national government was henceforth to run. The new India was organised into 16 provinces with defined identities, responsibilities and powers.
Given these exceptional circumstances, it was perhaps inevitable that the Central Government would be made strong to maintain the unity of the nation, with provinces being assigned a limited role that considerably subjected them to the national government’s big brotherly approach in matters both minor and major. Most members of the Constituent Assembly, led by the erudite Dr Rajendra Prasad, and the chief draftsman Dr Bhimrao Ambedkar, had far more exposure to the English system, a country without provinces, than to federal countries such as the United States, Canada or Australia.
Fast-forward 70 years to today, and with a minuscule threat of internal secession now persisting, the situation has vastly changed. Several differences between the Centre and states have been adjudicated by the apex court and these decisions have the force of law. Two full-fledged Commissions under the chairmanship of eminent justices (R.S. Sarkaria and M.M. Puchhi) have exhaustively deliberated the relationship. However, rather than taking a fresh, holistic view, only incremental approaches were made with piecemeal Constitutional amendments being incorporated. Over the years, and under all permutations of ruling parties, states have grown discontented; a phenomenon which seems to be growing by the day.
The Constitution lays down areas of responsibilities between the Centre and the states in three lists—a Union List that contains 99 subjects such as defence, foreign affairs, money, banking, currency, railways, communications, postal services, and higher judiciary; a State List with 59 subjects such as police, law and order, prisons, land, agriculture , healthcare, roadways, local governments, and sanitation; and a Concurrent List with 55 subjects where both the Union and states have roles in areas such as education, labour welfare, electricity, criminal and civil law procedures, marriage and divorce, family planning, and drugs. All residual matters—those not included in any list remain a Central responsibility. Also, in case of a conflict between a Central and state law on any concurrent item, the former prevails. Such provisions have tipped the balance of power heavily in favour of the Centre, and made the Constitution more unitary than federal.
Furthermore, in case a state legislates on any state subject that may impose restrictions on trade and commerce, prior approval of the President of India (a euphemism for the Central government), has to be obtained. After obtaining Rajya Sabha approval, Article 249 empowers the Centre to also legislate on State List subjects if deemed in public interest. Article 245 of the Constitution facilitates the Centre to give directives to the states in regard to the exercise of their executive powers, while Article 252 allows the Centre to legislate on a state subject if two states or more request it. The Governor of a state can also reserve any Bill approved by its state legislature for the President’s consideration, who retains absolute veto power.
Legislatively, that states are not adequately empowered has long been recognised. There is little reason to keep the Central and Concurrent Lists as long as they are, and the Constitution must be rebalanced to reflect the current reality and development goals. With state and local governments closer to the ground, and acutely aware of the needs of their citizenry, as opposed to a singular national government that has to try and enforce consistent policy across a large, diverse land, there is no convincing rationale today for the Centre to have a role in several subjects. Among others, these subjects include education, healthcare, labour, industrial or mining production, irrigation & power generation. Most so-called residuary subjects can now be identified and allocated. Constitutional Articles 245, 249 and 252, all of which impinge on the powers of the states, must be deleted with the only situation when the Centre could legislate on state subjects being the grounds of national emergencies.
Assigning more responsibilities to states, as opposed to adding to the Concurrent List, would enable doing away with several of the extant Central ministries and agencies and make for a leaner government. Arguably, a more focused Central government would be more impactful, allowing it to focus on its primary responsibilities of defence and foreign affairs, monetary, banking and currency issues, external trade, atomic energy, space, and scientific and technical research. Simultaneously, states will acquire more responsibility in policy-making, devising programmes and measuring outcomes—all matters of day to day concern to their citizens and to whom their accountability will become even more real.
The Kesavanand Bharati case apex court judgement of 1973 could be used to ensure the sanctity of Centre-State provisions in the Constitution, both existing and proposed. As done by the SC in Constitutional amendments for Right to Education in 2006 and in 2018 for asserting judicial independence in the National Judicial Accountability Commission for appointment of judges, the Court could consider putting the Centre-State provisions in the basic structure of the Constitution viz Part III outside the future scope of Parliament. Such enabling provisions would also ensure that the Centre cannot by the extant or any other provisions do away with a state or redraw its territorial boundaries, a Damocles’ sword always hanging over the heads of state governments.
Another administrative issue causing much consternation is the institution of Governors of states who are appointees of the Central government. As widely known, many Governors fail to remain politically neutral as is Constitutionally and ethically expected of them, but instead virtually serve as “agents of the Centre”. Union Governments have on many occasions used Governors to invoke Article 356 to supersede duly elected state governments on one of the three prescribed grounds: breakdown of the Constitutional machinery of administration, failure in law and order maintenance, or gross financial mismanagement. The gubernatorial recommendations and the Central government actions based on these, have many a times not met with judicial approvals when challenged.
Given the Governors’ limited worthwhile functions, it is time to think of doing away with this structure of Centrally appointed Governors sitting over elected Chief Ministers. Appropriate alternatives are conceivable for performance of all their ceremonial and other functions. Equally important, the imposition of President’s Rule by the Union Government under Article 356 must be made conditional upon the prior endorsement of a five-member Constitutional bench of the Supreme Court of India.
Perhaps equally controversially, it is time to re-think the role of All India Services viz IAS, IPS and IFS (Forest) whose members are selected and appointed by UPSC but then required to be posted by states in key administrative positions such as District Magistrates and Secretaries. Not surprisingly, most state political leaderships view such officers as employees of the Centre rather than as staff with full loyalty to their state-cadres.
Almost all Indian states are sizeable in area and population, resembling many countries around the world. Most state-residents rarely travel beyond their nearby towns and districts. It is the elected bodies of panchayats and municipal bodies, following the 74th Constitutional amendment effected in 1986, that are expected to bear responsibility for delivery of many public services. While this is highly desired, the shift of responsibilities towards local government has not come about within states for much the same for which the Centre has not transferred power to states i.e., the human tendency to retain powers and patronage with themselves, and not upset a prevailing system.
Making for co-operative federalism calls for truly empowering the states legislatively, administratively and financially. Unfortunately, it is unlikely to happen ever at the initiative of a Central government and clearly requires the states to work towards it systematically, unitedly and assudiously. To start the process, irrespective of their alignments, all state level political leaders must think beyond their nose and become cognisant of their long-term interests. For effectively materialising it, they need to make Centre-State relations the foremost issue in all future elections, both provincial and national.
Dr Ajay Dua, a public policy specialist and a development economist by training, is an ex Union Secretary.
Part II of this article on Centre-State financial relationship will appear next week.