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The Constitution empowers both the Centre and the states to enact a law on subjects in List III of the Seventh Schedule of the Constitution.
The COVID-19 pandemic has not only exposed the vulnerability of the marginalized sections of society, but has also seen lack of communication inter-se states in India. The failure on the part of the states to establish a robust communication channel, amongst themselves, has aggravated the sufferings of the poor people.
A range of issues such as the plight of migrant workers, Shramik special trains, and quarantine of the returnees have highlighted the significance of the horizontal federalism in India.
All along, we have witnessed a strong institutional arrangement of the vertical relationship between the Centre and the states to handle the health crisis. The new set of guidelines to fight the epidemic has left much for the state to strategize. The success of the strategy will squarely depend upon the cooperation and coordination between the states because of the inter-dependency of the provinces.
This work examines the relevance of horizontal relationships in the strengthening of the federal framework. Does the Constitution provide for any institutional arrangement to deal with issues amongst the states? How can such an arrangement be set up to not only contain the epidemic but also create a new governance model of the country?
The relevance of Horizontal Federalism
Generally, the federal relation focuses on the hierarchical allocation of power between the Central and state governments, while overlooking the horizontal allocation of power among equal states. The Constitution envisages the centralization of power in favour of the Centre in situations of failure of constitutional machinery in the states, national and financial emergencies. As all the states are equally and diligently shouldering the burden of the global pandemic, it would be unjust to explore these constitutional designs to address the disaster.
Also, the states are asserting their power based on the area demarcated for them in the Constitution. During this pandemic, the states have exercised their power, rightfully, on the issues of the landing of flights, acceptance of trains, or implementing lockdown strategy. These instances reflect more on the assertion of the co-equal power of the states than the jurisdictional issues involved therein.
Arguably, it may not be desirable to drag the states to courts of law to get redressal in a given situation on account of the lack of legally measurable standards. The situation can be effectively attended by institutionalizing the coordination between the states.
Horizontal federalism is anchored on the building of a relationship between the constituent units of the federal system, with an oversight power to the federal government. Horizontal federalism needs to be viewed differently from cooperative federalism, where the Centre and the states "cooperate” in the larger public interest. However, the horizontal framework facilitates the coordination inter-se provinces on matters of common interest.
The Constitution empowers both the Centre and the states to enact a law on subjects in List III of the Seventh Schedule of the Constitution. The Concurrent List highlights the coexistence of state laws, provided they are not repugnant to Central laws on the same subject matter. The operation of similar laws/directions in two different states, in the concurrent field, remains uncontested. But, in a situation where the effective implementation of laws/directions requires cooperation between the states, there is a need for an institution which shall be responsible for opening up a communication channel and to iron out the differences, if any.
Constitutional response to Horizontal Federalism
Since independence, there are institutions established, with or without constitutional or statutory underpinnings, to deliberate on the issues of common interest of the states and of the Union. In 1952, the National Development Council (NDC) was established to approve the Five Years Plan and to coordinate on matters of national significance.
In the backdrop of the reorganization of the states, the Zonal Council was created under the State Reorganization Act, 1956 with the objective to inculcate cooperative working culture amongst the states, to promote inter-state coordination and cooperation, and to reduce the stress and strain in federal relations. The five Councils established under the Act, based on geographical proximity, have been meeting from time to time to discuss the issues of the regions.
However, the Council(s) may not deliver fruitful results in the ongoing crisis due to the traversing nature of the issues involved between the states. Moreover, the statutory basis of the Council may also mar the efficiency of the institution while dealing with the sovereign exercise of power by the states.
The drafters of the Constitution had visualized the possibility of differences and the need for dialogue between the states with the support of the Centre. They borrowed from the design of Section 135 of the Government of India Act, 1935 on Inter-Provincial Council, which was responsible for inter-governmental consultations on matters of agriculture, forestry, education, etc.
Article 263 of the Constitution provides for the establishment of the Inter-State Council. The Constitutional body is entrusted with the mandate, inter alia, to inquire into and advise on the issue of inter-state disputes and to coordinate on the matter of common interest to some or all states. It is an advisory and consensus-seeking forum.
For four decades, the constitutional dicta remained only on paper. Only in 1990, on the recommendation of the Sarkaria Commission, did the President issue an order to establish the Inter-State Council with the power to recommend the issues referred to. The Council currently consists of the Prime Minister, some Union Ministers and Chief Ministers of all States. As per the Presidential Notification, the Council has not been assigned the function to resolve disputes between states as contemplated under clause (a) of Article 263.
The Council has framed guidelines to identify issues to be deliberated upon. It is precluded from discussing topics that fall under the purview of the National Development Council, the Finance Commission, etc. It is also excluded from areas that relate to constitutional or statutory responsibility of the Union to discharge any duty, unless a majority of members, with the approval of the Chairman, feel it is important to include. The guidelines have adversely affected the functioning of the Council, which otherwise would have strengthened the autonomy of the states.
The Punchhi Commission on Centre-State Relations had stressed for granting functional independence to the Council so that it can engage vibrantly on policy development and conflict resolution. No institution can be efficacious and efficient in discharging responsibility while wanting for functional autonomy. Functional independence demands the complete absence of external influences over authorities and maintenance of an arm’s length relationship from interest groups. Being a constitutional body, the Council can very well be conferred with all necessary attributes so that it can take up challenges where resolution demands deliberation and discussion between the sovereigns.
Being a body that guarantees full representation to each state, the Council has the potential to assure meaningful participation of the states. The notification related to the re-composition of the Council issued on August 9, 2019 suggests that the Standing Committee may invite domain experts so that the deliberations on vital and complex issues get guidance from their expertise.
There is no denying that the overarching problem related to the present crisis certainly demands consultation with a wide range of experts in different domains. This futuristic approach is visible in the finer reading of the provisions of the Council, which provide for an alternate deliberative forum, apart from the bureaucratic channels, to resolve problems of larger magnitude and to coordinate policy and action of common interest through a process of collective consideration, discussion, and persuasion by the political heads of the Union and the States.
On account of the limited jurisdiction conferred upon it, the Inter-State Council has fallen short of its capacity to take advantage of its potential envisaged by the makers of the Constitution. Though the Council has the backing of the highest law of the land, its benefit is yet to be tapped. With all the possible measures undertaken by the governments, the sufferings of the people have revealed the shortcomings in the preparedness to handle the crisis. It is not only about handling the epidemic anymore, but also about the resurrection of the economy. In this light, a new avatar of the Inter-State Council, with more autonomy, is the need of the hour.
Every crisis brings an opportunity for a better tomorrow. There is a need to build channels of communication between the states and the Centre, and leave space for resolution of disputes. Let the learning from this crisis be to empower states with enhanced accountability towards the people of the country. The empowered Council will potentially be involved in a range of issues such as burning of crops in the northern part of the states which causes environmental pollution in the capital, inter-state water disputes, increase in region-based reservation in employment, and infrastructural projects.
The author is an Associate Professor at Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology, Kharagpur.