INVOLVEMENT OF INTER STATE COUNCIL IN EMPOWERING THE IDEA OF HORIZONTAL FEDERALISM IN INDIA
- Milind Anand* and Shruti Sharma**
The COVID-19 pandemic not only exposed the vulnerability of marginalized sections of the society, but also accentuated the lack of effective coordination between states. The failure of states to establish a strong channel of communication among themselves has exacerbated the suffering of the poor. A range of issues such as the plight of migrant workers, the Shramik special trains, the quarantine of returnees etc. have highlighted the importance of horizontal federalism in India.
Throughout the pandemic we have witnessed a strong institutional arrangement of the vertical relationship between the Centre and the States to manage the health crisis. The new set of guidelines to combat the epidemic has left much to the state to develop strategies. The success of the strategy will depend squarely on cooperation and coordination among the states because of the interdependence of the provinces. This blog examines the relevance of horizontal relationships in strengthening the federal framework. Does the Constitution provide an institutional arrangement to resolve problems between states? How to set up such a device not only to contain the epidemic but also to create a new model of governance for the country? The blog tries to answer the above queries.
RELEVANCE OF HORIZONTAL FEDERALISM
In general, the federal relationship focuses on the hierarchical distribution of power between the central government and the states, while ignoring the horizontal distribution of power between equal states. The Constitution provides for the centralization of power in favor of the Centre in the event of failure of the constitutional mechanisms in the states, of national and financial emergency. As all states shoulder the burden of the global pandemic equally and diligently, it would be unfair to explore these constitutional views to deal with the disaster.
In addition, states assert their powers according to the area delimited for them in the Constitution. During this pandemic, states have rightly exercised their power over the issues of modes of transportation or implementing a locking strategy. These examples reflect more the affirmation of the power of co-equality of States than the jurisdictional problems involved.
Probably, it may not be judicious to move the states to the courts of law to get remedy in a given situation on account of the lack of legally computable standards. The situation can be effectively doctored by systemizing the coordination between the states.
Horizontal federalism is anchored in the construction of a relationship between the constituent units of the federal system, with a power of surveillance over the federal government. Horizontal federalism must be viewed differently from cooperative federalism, where the Centre and the states "cooperate" in the broader public interest. However, the horizontal framework facilitates coordination among the provinces on matters of common interest.
The Constitution empowers the Centre and the States to enact a law on the subjects of list III of the seventh annex to the Constitution. The concurrent list highlights the coexistence of state laws, provided they do not derogate away from central laws on the same subject. The operation of similar laws / directions in two different states, in the concurrent field, remains undisputed. But, in a situation where the effective implementation of laws / directives requires cooperation between states, it is necessary to have an institution which will be responsible for inception of a communication channel and ironing out differences, if necessary.
CONSTITUTIONALITY OF HORIZONTAL FEDERALISM
Since independence, there have been established institutions, with or without constitutional or statutory foundations, to deliberate on matters of common interest to States and the Union. In 1952, the National Development Council (NDC) was created to approve the five-year plan and coordinate matters of national importance.
In the context of state reorganization, the Zonal Council was established under the State Reorganization Act, 1956 to instill a culture of cooperative work among states, to promote coordination and cooperation among states, and reduce stress and tension in federal relations. The five councils created by law, due to their geographic proximity, meet from time to time to discuss regional issues.
However, the Council (s) may not produce fruitful results in the current crisis due to the traversing nature of the problems involved between States. In addition, the statutory basis of the Council can also undermine the efficiency of the institution while dealing with the sovereign exercise of power by States.
The drafters of the Constitution considered the possibility of divergences and the need for a dialogue between states with the support of the Centre. They borrowed from the design of section 135 of the Government of India Act 1935 on the Inter-provincial Council, which was responsible for intergovernmental consultations on issues of agriculture, forestry, education, etc.
Article 263 of the Constitution provides for the creation of the Inter-State Council. The constitutional body is responsible, inter alia, for investigating and advising on the questions of inter-state disputes and for coordinating the question of common interest to some or all States. It is a consultative and consensus-building forum.
For four decades, constitutional sayings have remained solely on paper. It was not until 1990, on the recommendation of the Sarkaria Commission that the President issued an order establishing the Inter-State Council with the power to recommend the matters raised. The Council currently consists of the Prime Minister, certain ministers of the Union and the Chief Ministers of all states. In accordance with the Presidential notification, the Council was not responsible for resolving disputes between States as envisaged in Article 263 (a).
The Council has developed guidelines for identifying the issues to be discussed. It is forbidden to discuss matters which fall within the competence of the National Development Council, the Finance Commission, etc. The areas relating to constitutional or statutory responsibility of the Centre are also excluded unless a majority of members, with the approval of the Chairman, feels it is important to include. These guidelines have sceptically damaged the functioning of the Council, which otherwise would have bolstered the liberty of the states.
The Punchhi Commission on Centre-State Relations stressed the importance of granting functional independence to the Council so that it can dynamically engage in policy development and conflict resolutions. No institution can be effective and efficient in the exercise of its responsibilities while wanting functional autonomy. Functional independence requires the total absence of outside influence on the authorities and the maintenance of an independent relationship with interest groups. As a constitutional body, the Council can be provided with all the necessary attributes to be able to take up challenges where the resolution requires deliberations and discussions between the sovereigns.
As a body ensuring the full representation of each State, the Council has the potential to ensure meaningful participation of States. The notification relating to the reorganization of the Council issued on August 9, 2019 suggests that the Standing Committee could invite experts in the field so that the deliberations on essential and complex questions are guided by their expertise. It is undeniable that the global problem linked to the current crisis certainly requires the consultation of a wide range of experts in different fields. This futuristic approach is visible in the more detailed reading of the Council's provisions, which provide for an alternative deliberative forum, outside bureaucratic channels, to resolve larger problems and coordinate policy and action of common interest through a process of collective consideration, discussion and persuasion by the political leaders of the Union and of the States.
Due to the limited jurisdiction conferred on it, the Inter-State Council has not been able to take advantage of its potential envisioned by the drafters of the Constitution. Although the Council has the support of the highest law in the country, its benefits remain to be exploited. With all possible measures taken by governments, the sufferings of the people have revealed the shortcomings of the preparation to manage the crisis. It is no longer just a question of managing the epidemic, but also of the resurrection of the economy. In this perspective, a new avatar of the Inter-State Council, with more autonomy, is the need of the hour.
Each crisis is an opportunity for a better future. There is a need to create channels of communication between States and the Center and to leave space for the settlement of disputes. The empowered council will potentially be involved in a range of issues such as the burning of crops in the northern part of the states which is causing environmental pollution in the capital, interstate disputes over water, increasing reservations for employment in the region and infrastructure projects.
*Milind Anand is a third year student at National University of Study and Research in Law, Ranchi.
**Shruti Sharma is a second year student at Siddhartha Law College, Dehradun.