INTRODUCTION
The Indian federalism has its distinctive idiosyncrasies. Although we depict ourselves as a federal, or quasi-federal, nation, we cannot dispute the Centre’s extensive control over the States in the exercise of their functions. While Art. 246[1] and the 7th Schedule[2] provide for division of power and authority between the Centre and the states, the same constitution conjointly permits “extraordinary circumstances” in which the Parliament may deviate from its constitutionally mandated authority and legislate in the state list without the it being unlawful. This overarching shadow over the State powers begs the question of whether the States of India are truly autonomous. And if so, how far does this autonomy extend, so as to not be repugnant[3] to a Union law. The circumstances in which the centre may make law on the matters of the state list[4] are elucidated below.
MATTERS OF ‘NATIONAL INTEREST’
Art. 249[5] provides that, if the Upper House declares, by a resolution “supported by 2/3rd of the members present and voting”, that it is indispensable or crucial in the “national interest” that the Parliament make a law with regards to a matter contained in the “State List” which has been mentioned in the said resolution, the Parliament is then lawfully empowered to make laws for the “whole or any part of India” with respect to the matter “so long as the resolution stands”. The said resolution is enforced for a time period that it itself mentions and maybe renewed “renewed as many times as may be necessary but not exceeding a year at a time”.[6] A new resolution has to passed afresh if the union legislation is to continue for beyond a year. Six months after the said resolution expires, the law ceases enforceability.[7]
PROCLAMATION OF EMERGENCY
While an emergency is operative under Art. 352 (“national emergency”), everything becomes highly centralised and Art. 250[8] provides that the Parliament can legislate even on the matter contained in the State List. It doesn’t limit the power of the state to legislate on a matter that it is constitutionally authorised to legislate upon, but owing to the “doctrine of repugnancy”, if the concerned law came in conflict with the union law, then the latter shall prevail. The state law thus remains “eclipsed and inoperative”, so long as the Union law is in force. The central law becomes inoperative after 6 months after the emergency is withdrawn.
DELEGATION BY CONSENT
According to Art. 252, if it is apparent to “two or more state legislatures” that is more desirable that a concerned matter present in the state list should be legislated upon by the parliament, and if the House(s) of those State legislatures pass the requisite resolutions to that effect, Parliament make a law for regulating that specific matter “so far as those states are concerned”.[9] The power is “willingly relinquished or surrendered” by the states to the Union, so that the latter may make on the matters in the state list which it was not originally authorised to legislate upon. Other states, by way of passing a similar resolution in their House(s) and informing the Parliament can have the law applied on their state as well.
The law thus passed is a central law, and as per Art. 252(2), the power to amend or repeal the law lies only with the centre. Unlike the provisions under Art. 249 and 250, the law made by the Parliament under Art. 252 is a permanent law, flowing from the parliament based on the power surrendered to it by the states.[10]
UPHOLDING INTERNATIONAL AGREEMENTS
By virtue of Art. 253, the Parliament is bestowed with the authority to legislate, notwithstanding the manner of power distribution, to “implement a treaty or a decision made at an international conference”. International laws are held applicable where Indian law is absent to deal with the situation.[11] In the landmark judgement of State of West Bengal vs Kesoram Industries (2004), the Apex Judiciary reiterated that India follows the “doctrine of dualism” and thus any treaty that India enters into shall not become binding law until the Parliament legislates to that effect under Art. 253.[12] The Protection of Women from Domestic Violence Act (2005), flows from the Convention on the Elimination of All Forms of Discrimination Against Women. Similarly, the Environment Protection Act (1986) flows from the Stockholm Declaration.
OPINION & CONCLUSION
Federalism is usually depicted and portrayed as an unyielding form of government. Constituted as it is of a dual polity, there should ideally be rigid distribution of powers and obligations between the union and the states, under the authorised sanctity of the constitution. But in India, we see that the constitution itself encompasses circumstances where, this rigidity isn’t followed. In extraordinary circumstances, the Parliament is allowed to legislate, lawfully, in the state field. The constitution contains several situations which in turn create a mechanism for affecting transient tinkerings with the of distribution of powers and introduce an element of flexibility in so far as expedient. The question of state autonomy has been raised ever since the constitution was enforced. Though, there is always the risk of these mechanisms being misused to usurp the state’s autonomy, a cautious and reasonable application of these provisions may help us lead a new way in the path of Indian federal polity.
Author’s Name: Alka Nanda (National Law University, Jodhpur)
[1] India Const. art. 256.
[2] 7th schedule of Indian Constitution
[3] India Const. art. 251.
[4] India Const. art. 246
[5] India Const. art. 249
[6] Id.
[7] Id.
[8] India Const. art. 250
[9] India Const. art. 252.
[10] MP Jain, Indian Constitutional Law 615 (8th ed. 2018).
[11] India Const. art. 253.
[12] State of West Bengal v. Kesoram Industries Ltd. CASE NO.: Appeal (civil) 1532-1533 of 1993.
