India: Federalism And Local Self Government On India – Biased Towards Centre?

INTRODUCTION

From the ancient time in India, here existed a very intriguing social structure of village community. These village communities were each a separate little unit in which requirements of the villagers for their own as well as community lives were well-provided for. For such purpose, village officers were made and their job was to look after arts, public health, agriculture, sanitation, and trade and commerce, etc.¹ As recognised by Lord Metcalfe in 1832: "The village communities in India are little republics having nearly everything they can want within themselves and almost independent of any foreign relations. They seem to last where nothing else lasts. Dynasty after dynasty tumbles down, revolution succeeds revolution, but the village community remains the same."² Thus, as mentioned, it can be clearly deciphered that from a very distant past, India had a well-structured and well-organised system of village communities.

Since then, there has been a growing realisation of the importance of these Village Communities in the administration of the rural parts of the country. After the Independence, Local Panchayats were established by many State Governments in the country. However, during the making of the Indian Constitution, the framers considered it necessary to have a strong central government due to various factors which include vast diversity of the nation and challenges of nation building after the partition of the nation. Thus, most of the provisions of the Constitution favour the strong administration and governance system in the centre. For this reason, in the process of making of the Indian Constitution, the idea of Self Government was incorporated in it only as the Directive Principles of State Policy and not as the mandatory provision. Article 40 of the Indian Constitution lay down that "the State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government".³ However, after the 73rd and 74th Amendment to the Constitution of India, Local Self Government was institutionalised, and from then we see the dichotomy along with the harmonious existence of Local Government and Federalism in the nation.

FEDERAL NATURE OF INDIAN GOVERNANCE: AN OVERVIEW

When the Constituent Assembly took the task of drafting the Indian Constitution, its approach was imperative towards a 'federal system with a fortified central authority' to secure the unity as well as integrity of the nation, which was the biggest task in hand after the country got Independence. In the contemporary nation-state system, the term "federalism" refers to the constitutionally prescribed division of powers between two or more levels of government: one at the national level and the other at the provincial, state, or local level.⁴ As Granville Austin correctly presents the realty of the approach taken by the Constituent assembly, he mentions: "The exigencies of the present as well as the pattern of the past impelled the Constituent Assembly to create a strong central government".⁵ As expressed by Dr. B. R. Ambedkar while introducing the provisions of the Draft Constitution on the issues of federalism, "Though India was to be a federation, the federation was not the result of an agreement by the States to join in a federation not being the result of an agreement, and no State has a right to secede from it. Though the country and the people may be divided into different States for convenience of administration, the country is one integral whole, its people a single people living under a single imperium derived from a single source... The Drafting Committee thought that it was better to make it clear at the outset rather than leave it to speculation",⁶ he made it clear that the Constituent Assembly has always favoured a system of federalism with the strong centre. However, there is no specific mention of the term 'Federation', and Article 1 describes India as a "Union of States" and not "Federation of States".⁷ Thus, it can be seen that the Indian Constitution has some inherent bias for the Central Government. However, even after providing the centre with a greater weightage of power, the Constitution tried to balance the power dynamics by providing specific areas of influence and operation for both Centre and the States. This has been done by dividing the subject matters in the form of Union Lists, State Lists and Concurrent Lists in the Constitution.⁸

CONSTITUTIONAL BIAS TOWARDS THE CENTRE

The pressing and difficult situation in which India was born has largely impacted the making of Indian Constitution. This has led to the makers having an inherent bias towards a strong centre in the federal structure, which is greatly reflected in various Constitutional provisions. The makers of the Constitution have opted for a highly centralized, quasi-federal state with strong unitary features.⁹ Regarding the Legislative Powers, the Constitution has described the legislative jurisdiction of both Centre and the States, which has been defined in the Seventh Schedule which contains the list of subjects under the jurisdiction of the Centre and the States.¹⁰ It can be understood by the number of subjects in each list that Union has more subjects in hand and has a greater jurisdiction. In case of any inconsistency between the Union and State law on the matters in Concurrent List, the law made by Union shall prevail.¹¹ Moreover, it has also been provided that the law made by the Union shall prevail over the laws made by the States.

Another obnoxious provision of the Constitution which reflects the constitutional bias towards the centre and adversely affecting the federal structure of the nation is the Emergency provision given in Article 356 which gives the power to the Central Government to impose emergency in any state and get direct control of the administration when it thinks that the State is not working in accordance with the Constitution.¹² This is the most misused provision by the Centre to exercise its supreme control over the states and most of the time; it is due to the internal conflict between the parties working in the Centre and in the States. In the initial 50 years of the Independence of India, this power was used more than 100 times by the Central Government. However, this provision received judicial safeguard after the landmark judgment of Hon'ble Supreme Court in the case of S.R. Bommai v. Union of India,¹³ where the Court has created immunity for the State Government against the arbitrary use of Article 356 by the Central Government.

A similar situation can be seen in the matter of allocation of Fiscal Powers. Although both the Union and the States were given their own fiscal powers and jurisdiction to collect taxes, the most important sources of revenue were assigned to the Union. Additionally, the union government enjoys broad economic superiority in terms of resources and the discretion with which it distributes resources to the states. According to the Constitution, the Union government must form a Finance Commission once in every five years to recommend transferring of resources from the Union to the States as well as other matters pertaining to revenue allocation and distribution. The 10th Finance Commission's recommendation was adopted, resulting in the division of all Union government revenues and the transfer of 29% of tax revenues to the States.¹⁴

These abovementioned provisions are a mirror of how the Constitution has created a system of Federalism in the nation with strong unitary character. These provisions were made to secure the unity along with integrity of the nation in the tough times after the partition and Independence of the country; however, there has been a constant need for the people to have a system of power devolution which could help in the empowerment of local people and the marginalized communities, which is possible only through the decentralisation of power to the lowest level of governance, that is Local Self Government.

Footnotes

1. Mallik, S. N. (1929). Local Self-Government in India. The ANNALS of the American Academy of Political and Social Science, 145(2), 36-44. https://doi.org/10.1177/000271622914500205

2. Report from the Select Committee of the House of Commons on the Affairs of the East-India Company, 16th August 1832. (1833). United Kingdom: order of the Honourable Court of Directors, by J.L. Cox and Son.

3. The Constitution of India, 1950, Art. 40.

4. George Anderson, Federalism: An Introduction, Oxford, New York, 2008.

5. Austin, G., The Indian Constitution: Cornerstone of a Nation, Bombay, 1979, p. 190-91.

6. Constituent Assembly Debates, Vol. 7, p. 43. Emphasis added.

7. Supra note 3, Art. 1.

8. The Constitution of India, 1950, Schedule VII.

9. Dr. Jayaprakash Narayan, Federalism and Local Self-government in India, https://www.fdrindia.org/old/publications/FederalismLocalGovt.pdf

10. Supra note 3, Art. 246.

11. Supra note 3, Art. 254.

12. Supra note 3, Art. 356.

13. S.R. Bommai v. Union of India, AIR 1994 SC 1918

14. Supra note 9.

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