2. Functions And Responsibilities Of the Union And State, Issues And Challenges Pertainting To Federal Structure, Devolution Of Powers And Finances Up To Local Levels And Challenges There In.

Question 1

What is federalism

Answer 1

India a federation where the centre and the state are sharing power with each other and supreme in there own spheres in implementing law.
Federalism derived from word FOEDUS meaning treaty or agreement this federation are know by various names states, cantons, provinces

Federations are created for 2 reason 
1. Weak states come together to form a union
2. Big unitary states into federal 
India adopted federation due to 2 reason
1. Large size of the nation
2. Sociocultural diversity

Article 1 of the constitution state Bharat as union of state and not federation as it is not the result of union coming together rather it is union that devolves powers to states.
The states have no right to secede from the union.

Features of Indian federation
1. It has a written constitution, single constitution, flexible and rigid in nature
2. There is devolution of power between state and centre schedule VII
3. Independent judiciary to resolve the issue
4. Emergency provisions
5. Strong unitary bias
6. Single citizenship
7. All india services
8. Governor appointment
9. Parliamentary authority over state list.
10 integrated election machinery

Bommai case and Ambedkar
States have an independent existence they are not appendages of the centre the states have independent existence. They are not satellites or agents of the centre with in the spheres allotted to them they are supreme

Federalism in india constitution is not a matter of administrative convinces but one of principle the out come of our own process and a recognition of ground realities.

Question 2

Competitive and cooperative federalism

Answer 2

Cooperative federalism is where the state and centre and states work towards a better socio economic development to achieve a better standard of living for the citizens.

Meaning they are partner in the development process.

Competitive federalism is where states horizontally and state and centre vertically compete with each other for developmental progress.
The idea developed in 1990 where the states started competition towards investment as it opened the economy and states wanted to utilise its resources for better development prospects.

Hurdles in competitive and cooperative federalism

1. The centres state financial devolution of funds where the 14TH Finnic are commission has devolved 42 % but the states don’t receive that much
2. Restriction on compulsory funding where centre starts a scheme the state has to put in the money that is its share
3. One size fits all approach
4. Presidential rule
5. Ineffective interstate council
6. No say in financial commission reports
7. Above all elements lead to a trust deficit

Steps taken towards competitive and cooperative federalism

1. The finance commission have increased the devolution towards the state from 32% to 41%
2. The gst where the state and centre have subsumed taxes for better developmental prospects.
3. The rationalisation of schemes and free hand in state schemes after fund devolution has lead to better utilisation of funds.
4. One nation one ration
5. Direct benefit transfer where states have to identify the beneficiaries and centre would directly transfers the money to their accounts.
6. Contribution in schemes

Further more needs to be done

1. The interstate council under article 263 needs to sit and discuss on issues of centre state relation for better policy implementation.
2. Competitive federalism and cooperative federalism are 2 sides of the same coin - backward stats need to have help from center and forward states need to help the backward states at the same time forward states need to improve there ranking in ease of doing business so to attract investment

Question 3

Federal example of kitex group??

Answer 3

Competitive federalism- state of kerala and telengana competed for company kitex group to set up its industry in the state - where they granted incentives, welcomed them with representatives to meet the company at airport+ minister meeting.

This raises the question of compromises in democracy and capitalism and what social impacts it has on people
Negative of competitiveness leads to overriding interest of labour, environmental, indigenous population.

Jharkhand in ease of doing business is at rank 5 and kerala at 28 but in sustainable development goals scores from 100 they score 28 and 64

This is not new in world this had happened in usa when the states tried to woo the capitalist to come and invest in them.
Meaning there is politico capitalist nexus where people suffer
Kitex group later on modeled with panchyat elections ( no proof )

Question 4

Delhi legislature vs LG

Answer 4

Recently, the Delhi government has appointed the public prosecutors for conducting the Delhi riot cases in the High Court. However, the Lieutenant Governor (LG) has stalled this decision, by referring it to the President under proviso to Article 239AA(4).

Delhi Government has held that the appointment of prosecutors to the Supreme Court and High Court, is exclusively within the purview of the State government. On the other hand, LG appointed all the prosecutors whose names were submitted by the Delhi Police (under the control of Ministry of Home Affairs) and thus the State government’s list was rejected.

This development has reignited the LG vs Delhi Government’s jurisdiction debate that the Supreme Court sought to address in NCT of Delhi vs. Union of India (2018).

Legal Controversy Between LG & Delhi Government

Due to the co-existence of Article 239 and 239AA, there is a jurisdictional conflict between the government of NCT and the Union Government and its representative, the Lieutenant Governor.
According to the Union government, New Delhi being a Union Territory Article 239 empowers the Lieutenant Governor to act independently of his Council of Ministers.
However, the state government of Delhi held that the Article 239AA of the Constitution bestows special status to Delhi of having its own legislatively elected government.
This creates a tussle around the administrative powers of the LG and state government of NCT of Delhi.
Highlights of the 2018 Judgement

Status of Delhi under the Constitution

Administration of Union Territory under Article 239(1) is different from Article 239AA which provides for an elected Legislature.
The court held that Parliament can legislate for Delhi on any matter in the State List and the Concurrent List but the executive power in relation to Delhi except the ‘Police’, ‘Land’ and ‘Public Orders’ vests only in the state government headed by the Chief Minister.
It also held that the executive power of the Union does not extend to any of the matters which come within the jurisdiction of the Delhi Assembly.
LG to act on ‘aid and advice’ of the Council of Ministers

The court held that for establishing a democratic and representative form of government for NCT of Delhi, Government of Delhi that enjoys the confidence of the people of Delhi should have the functional autonomy to legislate for the NCT of Delhi.
Hence, through the judgement, the Supreme Court has settled the law in regard to the ‘aid and advice’ of the Council of Ministers by affirming that the LG is bound to act on the aid and advice except in respect of ‘Land’, ‘Public Order’ and the ‘Police’.
LG cannot refer ‘every’ matter to the President

Article 239AA (4) says that in the case of a difference of opinion between the LG and his Ministers on any matter, the LG shall refer it to the President for final decision and act according to it.
However, the court inferred that the words ‘any matter’ employed in the proviso to Article 239AA (4) cannot be inferred to mean ‘every matter’.
The power of the Lieutenant Governor under the said proviso represents the exception and not the general rule which has to be exercised in exceptional circumstances by the LG.
Limited References to be made to the President

LG does not to refer to the President normal administrative matters as that would disturb the concept of Constitutional governance, principles of collaborative federalism and the standards of Constitutional morality.
The Court also held that the President is the highest Constitutional authority and his decision should be sought only on constitutionally important issues.
Unresolved Areas in the Judgement

Overlapping Areas: Though the court has settled that LG is bound to act on the aid and advice except in respect of ‘Land’, ‘Public Order’ and the ‘Police’. However, Public Order is a very wide connotation, which subsequently leads to overlapping executive powers.
Still No Clarity on Article 239AA (4): The court did not very clearly delineate the issues in respect of which the LG can refer a decision taken by the Council of Ministers to the President in the event of a difference of opinion between the LG and the State government.
Open-Ended Terminologies: In the event of referring any matter to the President, the Court enunciated that LG must adhere to the constitutional principles of collaborative federalism, constitutional balance and the concept of constitutional governance.
However, these terms are very wide and open-ended and subject to different interpretations.
Way Forward

Harmonious Functioning: Constitutional scheme adopted for the NCT of Delhi conceives of the Council of Ministers as the representatives of the people on the one hand and the LG as the nominee of the President on the other.
For the sake of adhering to the principle of representative democracy and cooperative federalism, it is required that both the constitutional offices should function in harmony within the Constitutional parameters.
Incorporating the Washington DC Model: Indian Government can emulate the model of administrative sharing of power between the Federal Government of US and state of Washington.
Under that scheme, only the strategic areas and buildings are under the effective control of the federal government and the rest of the areas are under jurisdiction of Washington state.
Given this, the institution of strategic importance like Parliament, Supreme Court etc. can remain under the jurisdiction of Union Government and areas other than these can be given statehood.

Conclusion

The Supreme Court in NCT of Delhi vs. Union of India (2018) case did well in resolving the legal controversy between the LG and Delhi Government. However, the present controversy shows there are still many areas to be resolved. Thus, the Supreme court must leverage the present controversy to resolve this jurisdictional conflict for good.

Question 5

Part IX B 97TH CONSTITUTIONAL AMENDMENT

Answer 5

The amendment was passed without ratification of states as cooperative came under the legislative powers of state entry 32 so parts dealing with cooperatives will be struck down

Dissenting view justice km Joseph doctrine of severability would not operate to distinguish between single state cooperative and multi state cooperative he opined that part IXB should be struck down entirely

Question 6

Emergencies

Answer 6

Emergencies are special instances in the federal polity of india where the union takes over the decision making powers to itself converting the federal polity into unitary.
This is an unique feature of india
Emergencies are of 3 types
1. National emergency
2. Presidential rule
3. Financial emergency

National emergency

1. China war 1962 -1968
2. India pak 1971 - 1977
3. Internal political crisis 1975 - 1977

Under article 352 the president can declare national emergency that is on the aid and advice of council of ministers that to on the grounds of

1. War
2. External aggression
3. Armed rebellion replaced by 44th CAA in 1978 from internal disturbance

The emergency can be declared to a part of india or whole of india 42nd CAA 1976.

The emergency is to be approved by the parliament by special majority in 1 month .while when Loksabha not in session by rajaya sabha and 1 month from sitting of Loksabha , changed from 2 months to 1 by 44th CAA 1978.

An national emergency is there for 6 months there after 6 months after approval indefinitely by special majority ( special majority got in by 44th CAA )

Loksabha can terminate the emergency 1/10th move a resolution approved by simple majority or by the president

Impacts of national emergency
1. President accrues powers to direct any state
2. Effects on centre state
A. Centre can give directions for the states in state list the state is not dissolved but remains suspended
3. Legislation.
A. The centre can make any laws on state list
4. Financial
President can modified the transfers that can be made to state removing all the obligation on the centre of transfer of finances.

Loksabha can extend the life for itself for 1 year at a time but has to dissolve once the emergency ends after 6 months
Same is the case for state depended on centre.

Article 358 can be declared at the time of war or external aggression where the article 19 is automatically suspended till the emergency ends
( suspended to entire country)

Article 359 can be declared at the time of external and internal disturbances it can suspend fundamental right enforcement by presidential order but does not empower for suspension of article 20, 21 but can empower to not enforce them. Empowering the centre to take any action inconsistent with the FR.

Minerva mills case 1980 the sc held that the proclamation of emergency can be challenged in court on the ground of Mala Fide or wholly irrelevant, extraneous, irrelevantly or absurd or perverse

Question 7

Presidential rule

Answer 7

The article 355 puts a duty on the centre to see to it that a state is carried according to the provisions of constitiution, if it is not then the centre is empowered under article 356 to put in presidential rule i.e in the flour of constitutional machinery

Objective is to put remedial action on the state to restore it to its formal glory this also means that any if any house of power is creating a problem for the fabric of the federalism it is to be restored

Presidents rule can be proclaimed where the president is satisfied that a situation has arisen in which the government of a state cannot be carried on in accordance with the provision of the constitution
He can act o the report of the governor

Parliament approval in 2 months if Loksabha dissolved when reassembled 1 moth

The emergency will continue for 6 months after the approval of both the houses can be extended for 3 years beyond 1 year it can only be extended if there is

1. National emergency in the whole or any part of the country
2. Approved by the EC that there cannot be elections in state

The parliament is given the power to make laws to state legislature or any body it may delegate the power to.

Sarkaria commission
1. All alternatives are to be exhausted before taking such a step
2. The grounds on which the governor recommends the emergency is to be made part of judicial review
3.presidents statisfaction reached only after 5 member committee
PM, ATTORNEY GENERAL OF INDIA,LOP, RS CHAIRMAN, GOVERNOR OF STATE
4. BOMMAI CASE the power vested in the governor are to be used sparingly
5. Emergency is to be applied only after the parliament approves it
6. If the court dismisses the emergency there is to be provision to revive the government of the state
7. Punchi commission has recommended a localised emergency.

Question 8

Financial emergency

Answer 8

The president can declare financial emergency if he is satisfied that the financial stability and credit of india or any part is in threat.
It has to be laid in parliament for 2months for approval , once approved it can continue indefinitely until revoked

During emergency
1. Executive authority of the union extends to giving any directions to any state to observe such financial propriety
2. It may direct to reduce the salaries and allowances of all or any class of persons serving in state
Reservation of money or financial bill for the consideration of the president