Federalism in India | Wikipedia audio article
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Federalism in India | Wikipedia audio article


Federalism in India describes the distribution
of legal authority across national, state and local governments in India. The Constitution of India establishes a federal
structure to the Indian government, declaring it to be a “Union of States”. Part XI of the Indian constitution specifies
the distribution of legislative, administrative and executive powers between the Union/Federal/Central
government and the States of India. The legislative powers are categorised under
a Union List, a State List and a Concurrent List, representing, respectively, the powers
conferred upon the Union government, those conferred upon the State governments and powers
shared among them. This federalism is asymmetric in that the
devolved powers of the constituent units are not all the same. The state of Jammu and Kashmir was accorded
a higher degree of autonomy than other States under Article 370. Union Territories are unitary type, directly
governed by the Union government. Article 1 (1) of the constitution stipulates
two tier-governance with an additional local elected government. Delhi and Puducherry were accorded legislatures
under Article 239AA and 239A, respectively. The fundamental rights of citizens vary by
state per Article 31 (B), as changes are added to Constitution schedule IX by constitutional
amendments.==Legislative powers==
The divsion of powers are defined by the constitution and the legislative powers are divided into
three lists:===Union List===Union List consists of 100 items (earlier
97) on which the parliament has exclusive power to legislate including: defence, armed
forces, arms and ammunition, atomic energy, foreign affairs, war and peace, citizenship,
extradition, railways, shipping and navigation, airways, posts and telegraphs, telephones,
wireless and broadcasting, currency, foreign trade, inter-state trade and commerce, banking,
insurance, control of industries, regulation and development of mines, mineral and oil
resources, elections, audit of Government accounts, constitution and organisation of
the Supreme Court, High Courts and union public service commission, income tax, custom duties
and export duties, duties of excise, corporation tax, taxes on capital value of assets, estate
duty and terminal taxes.===State List===State List consists of 61 items (earlier 66
items). Uniformity is desirable but not essential
on items in this list: maintaining law and order, police forces, healthcare, transport,
land policies, electricity in the state, village administration, etc. The state legislature has exclusive power
to make laws on these subjects. In certain circumstances, the parliament can
make laws on subjects mentioned in the State List, but to do so the Council of States (Rajya
Sabha) must pass a resolution with a two-thirds majority that it is expedient to legislate
in the national interest.Though states have exclusive powers to legislate with regards
to items on the State List, articles 249, 250, 252, and 253 mention situations in which
the Union government can legislate.===Concurrent List===Concurrent List consists of 52 (earlier 47)
items. Uniformity is desirable but not essential
on items in this list. The list mentions: marriage and divorce, transfer
of property other than agricultural land, education, contracts, bankruptcy and insolvency,
trustees and trusts, civil procedure, contempt of court, adulteration of foodstuffs, drugs
and poisons, economic and social planning, trade unions, labour welfare, electricity,
newspapers, books and printing press NS stamp duties.===Other (residuary) subjects===
Subjects not mentioned in any of the three lists are known as residuary subjects. However, many provisions in the constitution
outside these lists permit parliament or state legislative assembly to legislate. Excluding the provisions of the constitution
outside these lists per Article 245, the power to legislate on such subjects, rests with
the parliament exclusively per Article 248. Parliament shall legislate on residuary subjects
following the Article 368 procedure as constitutional amendments. In case the above lists are to be expanded
or amended, the legislation should be done by the Parliament under its constituent power
per Article 368 with ratification by the majority of the states. Federalism is part of the basic structure
of the Indian constitution which cannot be altered or destroyed through constitutional
amendments under the constituent powers of the Parliament without undergoing judicial
review by the Supreme Court.==Executive powers==
The Union and States have independent executive staffs controlled by their respective governments. In legislative and administrative matters,
the Central government cannot overrule the constitutional rights/powers of a state government
except when presidential rule is declared in a State. The Union’s duty is to ensure that the government
of every State is carried on in accordance with the provisions of the Constitution as
per Article 355 and Article 256. The State governments cannot violate the Central
laws in administrative matters. When a State violates the Constitution, Presidential
rule is imposed under Article 356 and the President takes over the State’s administration
with ex post facto consent of the Parliament per Article 357.==Financial powers==
Article 282 accords financial autonomy in spending financial resources available to
the states for public purpose. Article 293 allows States to borrow without
limit without consent from the Union government. However, the Union government can insist upon
compliance with its loan terms when a state has outstanding loans charged to the consolidated
fund of India or a federally-guaranteed loan.The President of India constitutes a Finance Commission
every five years to recommend devolution of Union revenues to State governments. Under Article 360, the President can proclaim
a financial emergency when the financial stability or credit of the nation or of any part of
its territory is threatened. However, no guidelines define “financial emergency”
for the country or a state or a union territory or a panchayat or a municipality or a corporation. Such an emergency must be approved by the
Parliament within two months by a simple majority and has never been declared. A state of financial emergency remains in
force indefinitely until revoked by the President. The President can reduce the salaries of all
government officials, including judges of the supreme court and high courts, in cases
of a financial emergency. All money bills passed by the State legislatures
are submitted to the President for approval. He can direct the state to observe economy
measures.==Disputes==
States can make agreements among themselves. When a dispute arises with other states or
a Union Territory or the central government, the Supreme Court adjudicates per Article
141. However, Article 262 excludes Supreme Court
jurisdiction with respect to adjudication of disputes in the use, distribution or control
of interstate river waters. Under Article 263 the President can establish
an interstate council to coordinate/resolve disputes between states and the Union.==Territories==
Article 1 (1) says that India is a Union of States as elaborated under Parts V (The Union)
and VI (The States) of the Constitution. Article 1 (3) says territories of India constitute
states, union territories and other acquired territories. The concept of union territory was established
by the Seventh Amendment. References to Territories of India, are applicable
to the whole country including union territories. References to only India, are applicable to
states, but not to union territories.==Jammu and Kashmir==
The state of Jammu and Kashmir (J&K) has a separate set of applicable laws under Article
370 read with Application to Jammu and Kashmir Order, 1954 (Appendix I and II) of the Indian
constitution. Only matters related to defence, foreign relations
and communications of Jammu and Kashmir are under the jurisdiction of Union government. Laws enacted by the parliament (including
amendments to the constitution) applicable to rest of India are not valid in J&K unless
ratified by its state assembly. The Government of India can declare a state
of emergency in J&K and impose governor’s rule in certain conditions. The state has its own constitution other than
applicable Indian constitution. Part XII of the J&K state constitution makes
provision to amend its constitution with two-thirds majority by the state assembly. Part VI (The states) and Part XIV (Services)
of the Indian constitution are not applicable to J&K per Article 152 and Article 308.==Issues==
The Government of India Act 1935 aimed to establish India as a Federation of States. It emphasized division of powers, independent
and apolitical Governors and Governors-General and introduced provincial autonomy for the
first time in India. On 26 January 1950, India adopted a new constitution.===Unitary bias===
Article 1 (1) of the constitution says India shall be a union of states and its citizens
shall have at least two tiered governance. The people of a Union Territory have every
right to opt for statehood. However, the amended (in 1956) Article 3,
allows the union government power with prior consent of the President (common head of states
and union governments) to (a) form a new state/UT by separating a territory of any state, or
by uniting two or more states/UTs or parts of states/UTs, or by uniting any territory
to a part of any state/UT; (b) the power to establish new states/UT (which were not previously
under India’s territory) which were not in existence before.===Appointment and role of governors===
Governor appointments are the responsibility of the President, on the advice of the Union
Government. Governors are generally not residents of the
state. Should the constitutional machinery in a state
break down, Article 356 allows a state of emergency that dissolves the state government
and establishes Presidential rule. No emergency at the centre can dissolve the
Union government. Misuse of Article 356 was rampant in the decades
following its adoption, during the Indira Gandhi era. In 1991 the Supreme court passed a landmark
judgement acknowledging misuse of the article and establishing principles for the Union
government to follow before a state emergency can be invoked. The Lieutenant Governors of Union Territories
of India are designed as administrators and are appointed by the President on the advice
of the Union government. Lieutenant Governors can override local government
policies.===Economic federalism===
States are at liberty to manage their finances as long as that does not lead to financial
emergency as per Article 360. The Government of India is trying to impose
uniform taxation throughout India and to take over states’ tax collection mechanisms without
regard to the impacts on individual states. Recently the Supreme Court upheld the constitutional
right of states to impose an Entry Tax which is against the principle of a general sales
tax (GST).Control of industries, which was a subject in the concurrent list in the 1935
act, was transferred to the Union List. The Union government in 1952 introduced the
freight equalisation policy that damaged many Indian states, including West Bengal, Bihar
(including present-day Jharkhand), Madhya Pradesh (including present-day Chhattisgarh)
and Orissa. These states lost their competitive advantage
of holding mineral resources, as factories could now operate anywhere in India. This was not the case in the pre-independence
era when business houses such as the Tatas and the Dalmias set up industries in these
states, and most of the engineering industry was located in West Bengal. Following the end of the policy in the early
1990s, these states did not catch up with more industrialised states. In 1996, the Commerce & Industry Minister
of West Bengal complained that “the removal of the freight equalisation and licensing
policies cannot compensate for the ill that has already been done”.National laws permit
a private/public limited company to raise loans internally and externally to its capacity. The Fiscal Responsibility and Budget Management
Act, 2003 limits state borrowing even when they have not defaulted/faced a financial
emergency. The employees’ salary and pension expenditure
of many state governments exceed their total revenue, without the President declaring a
financial emergency. Article 47 of Directive Principles of the
state policy prohibits intoxicating drinks that are injurious to health but is not enforced. Instead many states promote and tax liquor
sales.===Political economy===
The government is devolving central funds to the states under specific schemes (NREGA,
etc.) whose implementation by the states is controversially subject to government approval,
which violates Article 282. The controversy arises from the fact that
the grants for centrally sponsored schemes and central plan schemes are under the ruling
party’s control and discretion. In 2017, the ruling party was accused of ignoring
states in need or where poor people are concentrated, in order to pursue partisan goals. This was described as pork-barrel politics. The party’s nomenclature is designed to convey
that the central government is the source of these policies.==Government of India Act (1935) vs Constitution
of India (1950)====Comparison with USA and EU====
See also

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