Spirit Of Federalism Lies In Consultation

Context: The fields in the Concurrent List are of common interest to Union and the States, and the power to legislate on these subjects are shared. However, unilateral legislation by Union, without taking States into confidence, is threatening the federal balance in India.

Recent Instances of Union Government usurping powers of the states

• Issues with farm laws: Parliament passed these laws without consulting states. 
  • Violation of judicial doctrine of pith and substance: Beginning from the State of Bombay vs F.N. Balsara case, the legislative competence on subjects in the seventh schedule shall be decided by considering the “pith and substance” of the legislation.
  • The pith and substance of farm laws is ‘agriculture’, which comes under Entry 14 (agriculture clause) belonging to the State List, but Parliament passed farm laws citing Entry 33 (trade and commerce clause) in the Concurrent List.
• Issues with laws regarding administration of Major and Minor ports:
  • Major Ports Authorities Act, 2021: the State of Goa protested, citing it would lead to redundancy of local laws, including Goa Town and Country Planning Act, Goa Municipalities Act etc.
  • For non-major ports, field for legislation is located in Entry 31 of the Concurrent List. However, the draft Indian Ports Bill, 2021, proposes to transfer powers related to planning, developing and regulating non-major ports to the Maritime State Development Council (MSDC), which is overwhelmingly controlled by the Union government.
• Issues associated with Electricity (Amendment) Bill, 2020: Electricity comes under Entry 38 of Concurrent List, and the regulation is carried by State Electricity Regulatory Commissions (SERCs).
  • The proposed National Selection Committee for deciding on appointments to SERCs, being dominated by members nominated by the Union government, will alter the role and functioning of SERCs.
  • The bill proposes the establishment of Centrally-appointed Electricity Contract Enforcement Authority as the sole authority having jurisdiction over matters regarding the performance of obligations under a contract related to sale, purchase or transmission of electricity.

Way forward: Essence of cooperative federalism lies in consultation and dialogue - 

• Recommendations by Sarkaria Commission: There should be coordination of policy and action in all areas of concurrent or overlapping jurisdiction through a process of mutual consultation and cooperation.
  • Union government, while exercising powers under Concurrent List, shall limit itself to the purpose of ensuring uniformity in basic issues of national policy and not more.
• Recommendations by the National Commission to Review the Working of the Constitution (NCRWC), or the Venkatachaliah Commission: Individual and collective consultation with States should be undertaken through the Inter-State Council established under Article 263 of the Constitution.
• Judicial directives – S.R. Bommai vs Union of India case: States are not mere appendages of Union. The Union government should ensure that the power of States is not trampled with.