Essays on the centre state legislative relation with review of the Sarkaria commission (India)

The essence of federalism is division of powers between the National Government and State Governments.

The scheme of distribution of powers in each federation was determined by the peculiar political conditions under which it came into existence.

According to B.N. Sbakta, “The distribution of legislative powers between the centre and the units is an essential feature of a constitution based on the federal model. Every federal constitution, thus established a dual polity, the central polity and the subsidiary sovereign politics.”

The constitution of U.S.A makes the division by enumerating specifically the powers of the federal govt, and assigning all- the residuary power to the component states. In Canada, the American system was reversed. The present constitution of India, in making the distribution of Legislative powers between the union and the states adopts he method followed in the govt, of India Act 1935.

Whatever may be the variations or differences in the details of the distribution of Legislative powers between the union and the states, adopts the method followed in the government of India Act 1935.

Whatever may be the variations or differences in the details of the distribution of legislative power one fact is common to all federations and that is there is a distribution of legislative powers and this distribution determines the distribution of executive authority.

Legislative Relations between the union and the states:

The new constitution of India provides for a federal system of government. One silent feature of the federation is the division of powers between the union and the units.

The second trait of a federation is the supremacy of constitution which the third characteristic is the setting up of a Supreme Court which interprets the constitution and acts as its guardian. The Indian constitution possesses all the three ingredients of a Federal Government.

The constitution of India divides the subjects into three lists, the union list, the state list, and the concurrent list. The union list contains 97 topics including defence, internal affairs, currency and coinage, post and telegraph communication, Railways, insurance end establishment of standard of mights and measures.

Insurance, war and peace, citizenship, Banking, Nationalisation and Aliens, inter-state Trade, Telephones, wireless broadcasting and commerce, foreign loans. The union parliament enjoys the exclusive right to make laws on the union subjects.

The concurrent list contains 47 subjects e.g. – Power, Lunatic Asylums, civil procedure, criminal law Economic, social planning, Marriage and Divorce, Education, vital statistics including Registration of Births and Deaths, News Papers, Books and Printing Presses Legal, Medical and other professions Trust and Trusties Factories prices control and adulteration of foodstuffs and other goods.

Both the union parliament and state, Legislature possess simultaneous rights to frame laws on concurrent topics. But the constitution lays does that in case of a conflict between union and state law on concurrent list. The former shall have the precedence, on a concurrent topic conflicts with a state. Act on the same topic the former shall have precedence.

The state list contains 66 subjects which are of regional importance. The state list includes police, local self Government, Agriculture, Jail, Land Revenue and so on. Although the state legislatures are fully empowered to enact on state subject, its right is not exclusive or absolute. The union parliament can make laws on state subjects in the following cases.

(1) When according to Act. 356 the president on the basis of a report from the state Governor declare constitutional emergency in that state and empowers the parliament to make laws for that state,

(2) The parliament under Act. 253 can make laws for the Whole of India to implement any treaty with any other country.

(3) Under Act. 250. The parliament during the period of the proclamation of emergency remains in operation can legislative for whole of India.

(4) When according to Act. 252 the Legislatures of two or more states request the parliament to make laws on any state subject the parliament can do so,

(5) The council of states or Rajya Sabha declares by a resolution supported by two thirds members of the total strength that a particular subject has become of national interest, the parliament can encroach upon the state spheres with regard to that subject.

Under Act 253 Parliament had power to make any law for the whole or any part of India for implementing am treaty, agreement or convention with any other country or countries or any decision made at any international conference association or other body.

Article 254 (i) provides, “if any provision of a law nr by the legislature of a state is repugnant to any provision of law made by parliament which parliament is competent to enact or to any provision of any existing law with respect to one of the matters enumerated in the concurrent list, then subject to the provisions of classes

(2) of Act. 254. The law made by parliament whether passed before or after the law made by the legislature such state, or as the case may be the existing law shall prevail and the law made by the Legislature of the state shall to the extent of the repugnancy be void.”

Act 255 provides no Act of parliament or of the Legislature of a state and no provision in any such Act, shall be invalid by reason only that some recommendation or previous sanction required by this constitution was not given, if assent to the Act was given.

(a) Where the recommendation required was that of the Governor, either by the Governor or by the President.

(b) Where the recommendation or previous sanction required was that of the president, by the president.

Residuary Powers:

In the federations of the United States, Switzerland and Australia the residuary powers are assigned to the federating units while in India, like comedian federation, the residuary powers are rested in the union.

Criticism:

The central theme of the criticism leveled before the Sarkaria commission against the working of union state legislature relations is over contralisation.

Category-I:

Most state Governments, Political parties and eminent persons who have communicated their views to Sarkaria Commission, believe that there is nothing wrong with the scheme of the constitution in securing a constitutionally ‘Strong Centre’ having adequate powers both in extent and nature.

They accept that only a strong centre can effectively presence the unity and integrity of the nation. They suggest that before parliament undertakes legislation with regard to a concurrent matter the state Governments must be consulted.

Category-II:

Four state Government and their supporting political parties and a few others have severely criticised both the structural and functional aspects of the union state legislature relations.

They contend that the constitution is much two titled in favour of the union and this imbalance needs rectification by restructuring these relations. They ask for exclusion of those clauses and words from Act. 246 and 254 which give predominance to the legislative power of the union over that of the state legislatures.

They suggest drastic structural changes. Such as abolition or substantial reduction of the concurrent list and transfer of all. They asked for deletion or substantial modification of Act. 31A, 31C, 154 (2), 249, 252, 253, 254, etc.

Category-III:

Proceeding on the premise that “India is a federal and republican geographical entity of different languages, religions and cultures. Akali Dal submitted a resolution to the Sarkaria Commission which wages inter alia that to.”

Safeguard the Fundamental Rights of the religions and linguistic minorities, to fulfill the demands of democratic traditions ‘and to pave the way for economic progress, it has become imperative that the Indian constitutional structure should be given a real federal shape by redefining the central and state relationships or the a aforesaid principles and objectives.

Category-IV:

Critics have chosen a middle course. They want only a few structural changes and in common with those in category I and II substantial changes in the functioning aspects of union state legislative relations.

They suggest reformulation of Act 248 so as to vest the residuary power in the state legislatures.

Review of Sarkaria commission and its recommendation:

The Sarkaria Commission examined the scope of the constitutional provision, the manner in which they have been worked during the last 37 years, the validity of the criticism levelled and the need for remedial measures.

Most state Governments, political parties and eminent persons find no fault with the structural aspects of Acts 246 and 254.

Sarkaria commission feels that the supremacy clause is the very key stone of the arch if federal power. There will be every possibility of our two tier political system being stulofied interference, strife, legal chaos and confusion caused by a host of conflicting laws, -much to the bewilderment of the common citizen.

Most state Governments do not seek any change in the existing provision relating to the residuary powers.

Sarkaria commission recommends that residuary powers of legislation in regard to taxation matters should remain with parliament, while the residuary field, other than that of taxation, should be placed in the concurrent list.

Originally, there were 97 items in the union list, 66 in the state list and 47 in the concurrent list. As a result of subsequent amendments of the constitution, the number of entries in the union list and the concurrent list has increased to 99 and 52, respectively, while number of entries in the state list has decreased to 62.

Sarkaria commission fells that the proposed redistribution of powers would require drastic changes in the basic scheme and frame work of the constitution. So sedulously designed to protect the independence and ensure the unity and integrity of the country.

Two state Governments and their supporting parties have proposed abolition of the concurrent list and transfer of all its items to the state list.

Four state Governments specifically and one more state Government indirectly, have asked for deletion of Act. 249. The commission carefully considered the arguments for deletion or amendment of Act. 249.

Act. 249 was first invoked in Aug. 1950 for affective control of black marketing .when in pursuance of the resolution , dated Aug. 8 1950 of the Rajya Sabha, parliament enacted the essential supplies Amendment Act 1950 and the supply of price of goods Act 1950.

The entire scheme of the distribution of legislative power undoubtedly displays a strong tendency towards a high degree of centralization. This scheme seeks to reconcile the imperatives for a strong centre with the need for state autonomy. It distributes powers, yet doesn’t affect a rigid compartmentalization.

Functionally it is an inter-dependent arrangement. It is flexible enough henceforth the Sarkaria commission hasn’t suggested, wholesale structural changes in the fundamental fabric of the constitution. It is indeed the king pin of the federal system.