Unilateral laws without taking states into confidence will see more protests on the streets
Recently, various state governments expressed concern about central unilateralism in the enactment of important laws on subjects in the Concurrent List of the Seventh Schedule of the Constitution. Kerala Chief Minister Pinarayi Vijayan said that it is not in the essence of federalism for the central government to legislate unilaterally, avoiding discussions with the states on subjects in the Concurrent List. Tamil Nadu Chief Minister MK Stalin took up the issue with other Chief Ministers against usurpation of powers under the State and Concurrent Lists by the Central Government. The Kerala Assembly unanimously passed a resolution against the Electricity (Amendment) Bill, 2020, while the Tamil Nadu Assembly passed a resolution against the controversial agricultural laws. The importance of states and legislatures standing up for their rights is because the central government has introduced several laws without taking the states into confidence, thereby undermining the federal principles.
About a year ago, Parliament passed agricultural laws without consulting the states. Essentially the laws relating to entry 14 (agriculture clause) relating to the state list were passed by Parliament citing entry 33 (trade and commerce clause) in the concurrent list. According to various judgments of the Supreme Court, from the beginning of Bombay State vs FN Balsara The matter, if an Act falls within one of the matters assigned to the State List and after employing the principle of “pith and substance” reconciliation is not possible with any entry in the Concurrent or Union List, the State Legislature The legislative domain should prevail.
Agricultural laws were passed by Parliament even though it does not have the legislative capacity to deal with agriculture. The lack of consultation on the matter internally with lakhs of farmers also led to massive protests, which, incidentally, still continue on the streets across India.
‘Redundancy of local laws’
When the Major Port Authorities Act, 2021 was passed by Parliament earlier this year, even the Bharatiya Janata Party (BJP)-ruled state government in Goa objected to the law, stating That this would lead to a redundancy of local laws, including the Goa Town and Country Planning Act, the Goa Municipality Act, the Goa Panchayat Raj Act, the Goa Land Development and Building Construction Regulation, 2010 and the Goa Land Revenue Code.
When it comes to non-major ports, the area of law lies in entry 31 of the Concurrent List. According to the Indian Ports Act, 1908, which currently governs the area relating to non-major ports, the power to regulate and control minor ports remained with the state governments. However, the new draft Indian Ports Bill, 2021, proposes to change the status quo by transferring powers related to planning, development and regulation of non-major ports to the Maritime State Development Council (MSDC), which is heavily controlled by the Union. Government. Coastal states such as Odisha, Andhra Pradesh, Tamil Nadu and Kerala have objected to the bill which proposes to forfeit the power of the state government with respect to non-major ports.
Various states like West Bengal, Tamil Nadu and Kerala have also come forward against the Electricity (Amendment) Bill, 2020. The area relating to electricity can be traced to entry 38 of the Concurrent List. The power to regulate this sector was vested with the State Electricity Regulatory Commissions (SERCs), which were expressly governed by persons appointed by the State Government.
However, the proposed amendment seeks to change the regulatory regime from head to toe with the setting up of a national selection committee, dominated by members nominated by the central government who will make appointments to the SERC. Further, the amendment proposes to set up a Centrally appointed Electricity Contract Enforcement Authority (ECEA) as the sole authority to have jurisdiction over matters relating to the performance of obligations under the contract relating to the sale, purchase or transmission of electricity.
In fact, the power to regulate the power sector will be taken away from the state government. This is in addition to other proposed changes, which include changing the licensing regime to facilitate entry into the private sector without the approval of the state government.
cause for concern
The Central Government’s rapid handing over to the subjects of the Concurrent List is a matter of grave concern as the balance of the Constitution has now turned on its head. The model envisaged in the Government of India Act, 1935 was adopted by the framers of the Constitution and certain subjects were placed in the Concurrent List by giving concurrent powers to the Union and State Legislatures in respect of them.
The areas of the Concurrent List were to be of common interest to the Union and the States, and the power to make laws on these subjects was to be shared with the Union so that there was uniformity in law throughout the country. However, one of the worst fears of KTM Ahmed Ibrahim Sahib Bahadur, a member of the Constituent Assembly, has now come true, the arbitrariness of the central government causing the subjects of the Concurrent List to be transferred over time to the Union List.
The report of the Sarkaria Commission had specifically recommended that “policy and action should be coordinated in all areas of concurrent or overlapping jurisdiction through a process of mutual consultation and cooperation, therefore, ensuring a smooth and harmonious functioning of the dual system”. is a prerequisite”. It further recommended that the Central Government, in exercise of the powers under the Concurrent List, be limited to the objective of ensuring uniformity in the basic issues of national policy and no more.
The National Commission to Review the Working of the Constitution (NCRWC), or the Venkatachaliah Commission, recommended that individual and collective consultations should be conducted with the states through the Inter-State Council established under Article 263 of the Constitution.
As the Supreme Court itself held in SR Bommai Vs Union of India In the matter, the states are not merely appendages of the Union. The central government should ensure that the power of the states is not crushed. The intention of the framers of the Constitution is to ensure that the public welfare is protected and the key lies in listening to the stakeholders. The essence of cooperative federalism lies in consultation and dialogue, and unilateral legislation without taking the states into confidence will lead to more protests on the streets.
Mukund P. Unni is an advocate practicing in the Supreme Court.
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