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The Centre in a federation

The constitutional scheme was carefully crafted to create a strong Centre, says NIRMALENDU BIKASH RAKSHIT


It is a stark reality that often some Chief Ministers and local leaders bitterly allege that by defying Constitutional norms, the Centre steals a march on them.

According to them, we are living under a federal system which has meticulously divided power between the Centre and the states, and hence the former can, by no means, step out of its boundary within which it is kept by the Constitution.

It is true that the Centre has sometimes come out of its orbit, but more often than not, these leaders keep up a row over a petty affair for political reasons. Of course, we have adopted a federal system. It has some salient features of its own.

1) As a dual polity, it consists two sets of Government – Union or Central and Provincial;

2) Powers are divided between them by the Constitution itself and, hence, neither of them can go beyond its own domain.

3) The Constitution is rigid in the sense that the most important provisions cannot be amended without their concurrence; and

4) There is a Supreme Court to settle disputes regarding the sphere of their authority.

But it is difficult if not impossible to keep them at par. America, the ‘model-federal’state, started with a weak Centre. But within two centuries, the system has utterly changed in favour of the Centre or Federal government.

The attempt of the Southern states to secede from the federation led to the ‘Civil War’ of 1862-64 and the President, Abraham Lincoln, had to use force to keep them within the federation.

Mellowed by this experience, other federations like Canada, Australia, Switzerland etc. drafted their Constitutions in such a fashion that the central Government can exercise overriding powers in national interest.

The makers of our Constitution were practical enough not to ride a hobby-horse. So, they drafted a Constitution with a realistic view.

As Dr BR Ambedkar, the chief architect of the Constitution, observed, ‘I want a strong Centre – even stronger than which was created by the Government of India Act, 1905.’

According to him, circumstances in the modern world were such that we could not deny power to the Centre. In fact, war, fear of war, defense problems, economic crises, industrialisation, business cycle etc. have rapidly centralised this trend.

As L Lipsom put it, “All the great driving forces of modern life now move in a centralized direction.” This is why our Constitution has deliberately adopted a centralised federal system. It has done so in various ways.

First, the distribution of powers has sufficiently served this purpose. The legislative power has been divided in three lists. Ninety-seven items have been included in the Union List, where the Centre enjoys exclusive authority to make laws. The concurrent list mentions 47 items on which both the Centre and the states can make laws.

But, here again, the Central law prevails. Though the state-list is drafted for the states, the Centre can intrude here under Art. 249, Art. 252 and Art. 253. Above all, the residuary power has been vested in the Centre and it has tremendously widened its authority.

Administrative relations too mark the same trend. Art. 256 states that the executive power of the state shall be so exercised as to ensure compliance with Central laws. And, as Art. 257 points out, the Union can give directives to the states in this regard.

Moreover, the state’s source of revenue is so little that they have to depend upon the Centre for finances. Secondly, the President can exercise three types of Emergency powers under Art. 352, Art. 356 and Art. 360 on the basis of ministerial advice. In such a case, the Constitution temporarily becomes unitary.

The makers thought that the normal scheme would be unable to cope with an unforeseen crisis and endanger the security of the state. Thirdly, the Governor is nominated by the Centre (Art. 115) and, according to Art 156, he can be thrown out at any time and without showing the reason. So, as Dr SL Kashyap observes, ‘he has no security of service’. Art. 163 has offered him an undefined territory where he can exercise his ‘discretionary power’ without, and even against, the will of his cabinet and, obviously, he is guided by the Centre in such matters.

As Dr MV Pylee puts it, ‘he is not a mere figure-head’ and, so, he can strengthen the central authority by his discretionary power. Fourthly, Dr VD Mahajan points out that the Election Commission is formed by the President and it conducts and controls all the elections of the Parliament and the State Assemblies. Fifthly, the Auditor-General is an employee of the Centre, but he keeps a watch over the finances of both the Centre and the states. Sixthly, Art. 172(2) states that the Parliament can change the method of the composition of the upper House of the legislative Council of a state.

Seventhly, Art. 3 empowers the Parliament to change the boundary of a state or to create a new state of the federation. According to Dr VD Mahajan, ‘this is a tremendous power over the states’. Eighthly, Art. 257 A, as added by the 42nd amendment, empowers the Centre to deploy armed forces to deal with a grave situation in any state. Of course, there are many other functions which have bolstered this tendency.

This is why Dr VD Mahajan has opined that ‘India is federal in form, but unitary in spirit.’ But the units must have sufficient power and enough opportunity to perform their own job. This is why states have now become assertive and demanded greater autonomy. Dr SL Sikri has observed that there is some truth in the complaint of the states.

We actually need ‘co-operative federalism’ which can enhance their position and power. But, at the same time, it is to be noted that the Centre has much greater responsibility and larger duties than the states. Moreover, it must prevent fissiparous tendencies of various types and the subversive activities of enemy-agents.

The makers have wisely framed such a Constitution which can stem the rot. Moreover, India had to fight against Pakistan on three occasions, and had to face the alarming Chinese aggression in 1962. It must be a power-state in order to protect the country’s unity, integrity and freedom.

So, we have to perform gigantic tasks with regard to defense preparation, national unity and economic affluence. In such situations, it is not possible to prevent the centralising tendency in any way. Surely the makers of the Constitution wisely enacted it so that it could fit in with varying conditions.

Dr HC Das has, however, regarded it as a ‘quasi-federal’ Constitution. But it reveals a fatal mistake, because every federal state of modern times has a centralising bias.

The writer is an author, columnist, Griffith Prizeman and former Reader, New Alipore College, Kolkata.