Abhijeet Shrivastava
Delineating The Contours Of Co-operative Federalism
The term, ‘co-operate federalism’ was first envisioned as characterising the scheme of the Indian Constitution by Granville Austin.[1] To Austin, the idea of co-operative federalism connoted two primary features.[2] First, a Constitution reflecting co-operative federalism provides for a ‘strong’ central government, or in other words, a State where the Central government enjoys more power than provincial governments (a.).
Second, such a Constitution would not result in ‘weak’ provincial governments. This is to say that a Constitution reflecting co-operative federalism would not allow for constituent State governments that are merely administrative agents for central policies (b.). Reading these two features together, one finds that Constitutional provisions reflecting this model of federalism would enable neither ‘complete’ autonomy for the States, nor ‘excessive’ intervention by the Union in their affairs.[3]
Feature (a.), i.e., the conception of a ‘strong’ central government was adopted by the Constituent Assembly given that during the process of the Constitution’s drafting, the provinces of India were already part of a ‘federal’ union (that is, prior to independence). This was contrary to the case of United States of America, where separate states had aligned together to frame a Constitution governing their relations. Considering this, in the situation of the United States, there was a consensus that greater autonomy of individual States must be ensured.[4]
Nonetheless, although the Union Government in India is dominant when compared to the United States, the premise of an ‘effective’ functioning of India’s scheme is ‘co-operation’ between the two tiers of government.[5] When read in this context, Feature (b.) of Austin’s conception, i.e., the fact that State governments are not excessively weak, requires the minimization of ‘unilateralism’ in order to promote co-operation.[6]
Lederman’s comments, albeit in the Canadian context, are insightful insofar as they explain that the only legitimate form of co-operative federalism is one that promotes a ‘satisfactory’ (or harmonious) relationship between the two tiers of government.[7] In other words, if one contends that a provision reflects co-operative federalism, then its contents must allow for the maximal harmony or consultative relations between the central and the provincial tiers of the State’s governments. With this backdrop, for Article 3 to illustrate co-operative federalism, it must demonstrate both Feature (a.) and Feature (b.).
Examining Article 3
As mentioned earlier, Article 3 empowers the Parliament, inter alia, to ‘reorganize’ State territories. In other words, the Parliament is invested with the power to form new States by increasing or diminishing the territories of existing States or to unite the territories of multiple States, or to generally alter the areas and boundaries of State. Given that this power is entrusted to the Parliament, it can be argued that Feature (a.) has been met, since this exhibits the existence of a ‘strong’ Central institution.
The proviso to Article 3 states that for Bills concerning reorganization to be introduced in Parliament, the proposal contained in such Bills shall, among other things, be referred by the President to the affected State’s Legislature for “expressing its views”. Such views must be expressed within the time stipulated by the President. In Babulal Parate v. State of Bombay (1960), the Supreme Court held that this provision was drafted simply to allow State Legislatures to provide their opinions on the proposal, while concluding that such expression of their views would to no extent bind the Parliament (¶5). This was especially considering that on a single proposal that ‘affects’ multiple State, multiple State Legislatures might provide differing views.
Given this, the proviso to Article 3 requires only that ‘consultation’ or the opinions of the State involved should be sought. As the court acknowledges (¶8), this contrasts with Article IV, S. 3 of the United States’ Constitution’s requirement of securing ‘concurrence’ or the consent of States (since in the latter case, provincial governments enjoy greater autonomy). Considering this reasoning, it is possible to interpret the proviso as potentially be compatible with Feature (b.) which requires that provincial governments must not be excessively weak. This is since State Legislatures are allowed expression of their views, which is seemingly expected to be considered in good faith by a co-operative Parliament, at least in theory. However, on further evaluating the Supreme Court’s holdings, this contention becomes doubtful.
‘Substantial’ Modifications To Proposals
In this context, difficulties emerge from the Supreme Court’s realisation in Babulal Parate that even if a ‘substantial’ modification has been made to the Bill finally introduced in the Parliament, from the proposal on which the States’ view was sought, fresh consultation of the affected States is not required (¶¶7-8). In the facts of said case, the proposal made initially to the affected States concerned the formation of three separate units: the States of Maharashtra, the State of Gujarat, and Bombay as a Union Territory (¶1-3).
However, in the Bill finally presented in Parliament, Bombay was eventually absorbed within Maharashtra and not made a separate Union Territory. The Supreme Court held that since the revised Bill concerned the same subject-matter, it was ‘germane’ to the initial proposal and not a new bill altogether, even if the proposal had been greatly modified (¶10). Had it been the case that fresh consultations on such modifications were required to be secured under Article 3, the court reasoned that this requirement would have been textually provided for by the Constituent Assembly (¶9). This understanding has been reiterated thereafter by the court in Pradeep Chaudhary & Ors. v. Union of India & Anr. (2009).
Having considered this backdrop, it becomes clear that Parliament has a carte blanche power of reorganization. State Legislatures must endure a practicably unrealistic burden to express their views by anticipating all potentialities incidentally ‘germane’ to the subject-matter of a proposal. Evidently, their burden to foresee and express their views on such hypothetical potentialities extends also for proposals not explicitly solicited for by the Parliament.
I contend that the absence of fresh consultation for ‘substantial’ or material modifications to original proposal renders any preliminary consultation meaningless. This is since States are not allowed to conduct adequate internal deliberation and dialogue on major changes to the initial proposals, let alone to present their views thoroughly. In fact, State Legislatures are disallowed to express their views even if their very existence is at stake or threatened by the revised Bill in question.[8]
Enabling such ‘unilateralism’ cannot promote a harmonious or co-operative relationship between the two tiers, which as Lederman wrote, was the core of any ‘legitimate’ form of co-operative federalism. Considering this, Article 3 does not textually exemplify Feature (b.) of Granville Austin’s conception of co-operative federalism, given that its provisions render the provincial tier of government hapless and at the Union’s mercy. Thus, although Article 3 may illustrate Feature (a.) of co-operative federalism as explained earlier, it does not reflect co-operative federalism for failing to meet Feature (b.).
Concluding Thoughts
In reading Granville Austin’s remarks on the Indian Constitution as reflecting elements of what he understood to be co-operative federalism, one could interpret his thesis to refer not to the Constitution’s provisions in toto, but instead, to the majority of its provisions. As we have seen, Article 3 is a clear aberration from this scheme in allowing the Parliament an excessively unilateral prerogative to reorganize State territories.
Readers must remain contemplative of whether the Constituent Assembly was wise in entrusting the Parliament with such powers. The abrogation of Article 370 and the statehood of the erstwhile State of Jammu and Kashmir, which coincided with the invocation of Article 3 for its reorganization, is a recent instance which shows the risks of empowering excessive unilateralism in Central institutions. After all, the Centre even went to the extent of using suspect constitutional amendments and imposing a state of emergency to forgo the much higher requirement of securing the former State’s erstwhile Constituent Assembly’s recommendation (concurrence) in that regard.
Consequently, even if one assumes that in crafting Article 3, the Constituent Assembly had intended for the Centre to consult State Legislatures in good faith, the Parliament has evidently drifted too far off from such an ideal for it to be considered ‘co-operative’, thus shaking the harmony of the relations of the two tiers. Perhaps, it might serve well to recall Lord Acton’s observation that power corrupts, and ‘absolute’ power corrupts absolutely.
[1] Jaideep Reddy, Duty of the Union under Article 355 of the Constitution – Remembering the Constitutional Ideal of Co-Operative Federalism, 4 NUJS L. REV. 371, 379 (2011).
[2] Granville Austin, The Indian Constitution: Cornerstone Of A Nation 187 (1966) (hereinafter Austin).
[3] Reddy, supra note 1, at 388.
[4] Austin, 192.
[5] Id.
[6] Marc-Antoine Adam, Spending Power, Co-Operative Federalism and Section 94, 34 QUEENS L.J. 175, 223 (2008).
[7] W. R. Lederman, Some Forms and Limitations of Co-Operative Federalism, 45 CAN. B. REV. 409, 435 (1967).
[8] V.N. Shukla, Constitution of India 10 (Mahendra Pal Singh ed., Eastern Book Company, 13th ed, 2017) (1950).
Abhijeet Shrivastava is a third-year law student at Jindal Global Law School
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