The Centre’s move to extend the jurisdiction of the Border Security Force (BSF) up to 50 km inside the international borders in Punjab, West Bengal and Assam has reignited the debate on federalism and the distribution of powers between the Centre and states.
While disputes over the meaning and implementation of federalism in India date back to the formation of the Constitution, they have only catalysed in the recent years. Increasing the powers of the BSF, National Education Policy, GST, NEET and farming laws are the prominent ones in the tenure of the Modi government.
The debate over federalism has come up time and again despite the Constitution explicitly demarcating the powers between the Centre and states in terms of legislative, administrative and financial functions under Articles 245-263.
Furthermore, the 7th Schedule of the Constitution is subdivided into three lists – Union List, State List and Concurrent List – which provide comprehensive details on the law-making powers of the Parliament and the state assemblies.
Despite such clear-cut divisions, Centre-State disputes have been a perennial feature. The latest example of such contention is the Centre’s decision to increase BSF’s jurisdiction in terms of the area and powers in three border states of Punjab, West Bengal and Assam.
Centre vs States: The recent flashpoints
The Ministry of Home Affairs recently issued a notification extending the jurisdiction of the Border Security Force from 15 km to a depth of 50 km along the international borders in three states — Punjab, Assam and West Bengal, allowing the central forces to undertake search, seizure and arrest within a larger stretch.
The move has led to an uproar, particularly by Opposition-ruled Punjab and West Bengal who call it a “direct attack on federalism” and question the constitutionality of the Amendment. They have alleged that the decision amounts to interference in the working and rights of the state governments, and that the provision amounts to a “Central rule by proxy”.
Constitutional experts, however, are of the view that the Centre’s move is well within the regulations of the Constitution, as border security is a matter which lies with the central government.
“The central government can extend the area of jurisdiction of the BSF, because they are responsible for the overall border security. It doesn’t matter whether it is 15 or 50 because if the government decides that problems are there within a 50 km area, then it has the power to do this,” former Secretary General of Lok Sabha PDT Achary told FinancialExpress.com.
Achary, however, pointed out that the states were not consulted before making the move, adding that they are concerned if this might reduce the area of jurisdiction of the state authorities. He indicated that the move somewhere may have an impact on the federal structure of the Constitution.
Former Director General, BSF, Prakash Singh said that the Opposition’s hypocrisy stands exposed by the fact that in 2011, the erstwhile UPA government had itself brought a bill to vest the BSF with powers to search, seize and arrest in any part of the country.
“In 2011, Chidambaram had moved a Bill which went to the Rajya Sabha. Even though the Bill was dropped, they had gone much ahead of what the NDA government has done today. What kind of hypocrisy is this that when you are in power, you do one thing, and when you are out of power, you say something entirely different on the same subject,” Singh told FinancialExpress.com.
On the contrary, senior advocate and former president of the Supreme Court Bar Association Dushyant Dave calls it an “unconstitutional” move by the Centre, adding that it poses “serious threat to federalism”.
The Centre’s three contentious farm laws have been another bone of contention between the Centre and States, with experts giving mixed views over the constitutional validity of the laws and whether they challenge the federal powers of the state legislatures.
“The farm laws are basically a state subject. Only the inter-state trading comes under the central government’s jurisdiction. But they have linked it all and made these laws, so that is one example where they encroached upon federalism,” says PDT Achary, suggesting that it is an infringement of the state affairs.
Dave also echoed similar sentiments saying that bringing new farm laws is a matter of the state legislatures, but the Centre has brought them under the Concurrent List.
The Constitution of India divides different subjects between the Union and State governments under the 7th Schedule. While they respectively possess exclusive legislative domain over subjects in their lists, both the Union and state governments can pass laws in subjects mentioned under the Concurrent List. In case of a clash between Union and State laws under the subject of the Concurrent List, the central government’s law will prevail.
The Centre has justified its move citing its power under the Concurrent List to legislate on aspects of “trade and commerce”. Citing the Constitution, several experts have stated that the Centre was well within its rights to legislate on the subject.
Another example is the National Education Policy 2020 which has been criticised for excessive centralisation. The most vociferous criticism has come from the Left parties which claimed the NEP is “unilateral drive” to “destroy Indian education system” by “greater centralisation, communalisation and commercialisation”.
Even the implementation of Centre-run schemes, implementation of GST and the actions taken by central agencies like the CBI, Enforcement Directorate and Narcotics Control Bureau have come under the ambit of debate over distribution of powers between the Centre and states.
Supreme Court on Centre vs State – complexity of Article 131
Mostly, disputes arise when the Centre encroaches upon a state’s power by making laws on matters that fall under the State list or when Centre passes any other laws, which affect the legal or constitutional rights of the state.
The Disaster Management Act, 2005, which was invoked during the Covid-19 pandemic, is a recent example of the Centre-States dispute. The states have alleged that the central guidelines are binding on them, even though public health is a state matter on which the Parliament cannot legislate.
Another case is of the suit filed under Article 131 by the Chhattisgarh government against the Centre challenging the National Investigation Act, 2008 passed by the Centre in spite of police being a state subject.
Article 131 gives both the Governments a forum to fight on legal issues and not on mere political issues. Thus, the order given by the Government of India to the state governments ordering the Chief Minister to tender advice to the Governor of the State is not a mere political issue but a legal right.
Over the years, the Supreme Court has taken heterogeneous decisions on whether a state can challenge the Centre under Article 131.
In the case of State of Madhya Pradesh v Union of India, the Supreme Court held that the Central enactments could only be challenged as writ petitions under Article 32 and 262 of the Constitution and not under the original jurisdiction of the Court under Article 131.
But a few years later, in another case, it disagreed with the previously mentioned judgement stating that Article 131 works as an addition to Article 32 to deal with Centre-State Dispute.
Why Centre supersedes State
In India’s quasi-federal constitutional structure, the framers of the Constitution expected such inter-governmental differences, and added the exclusive original jurisdiction of the Supreme Court for their resolution. The quasi-federal structure envisaged in 1950 has consolidated into defined powers of the states.
Since 2014, when the Narendra Modi government came to power, debates around the 15th Finance Commission, GST, the linguistic divide on the NEP, land acquisition, and the proposed All India Judicial Services have all emerged as flashpoints between the strong Centre and states ruled by the Opposition.
While the actual existence and implementation of federalism in India’s legislative system has been a topic of debate ever since the Constitution was formed, it is worth mentioning here the remarks made by the first prime minister Jawaharlal Nehru during the constituent assembly debates.
“It would be injurious to the interests of the country to provide for a weak central authority which would be incapable of ensuring peace, of coordinating vital matters of common concern and of speaking effectively for the whole country in the international sphere,” he had cautioned.
Other prominent members of the assembly also demanded a stronger Union government necessary for India’s survival and political stability, given its vast diversity based on religion, language, caste and ethnicity.
Even the framers of the Indian Constitution refrained from creating a fully federalised political system in India. Article 1 in the Constitution states that India, that is Bharat, shall be a Union of States.
A section of constitutional experts, however, are of the view that certain clauses in the Constitution are violative of the federal system.
“Right from when the Constitution was made, this debate has been going on and even in the constituent assembly, the debate had taken place and many commentators on the Constitution had said that we have a federal system with unitary powers. Article 356 in a way is an encroachment on the states, you can defuse any state government, so what is the use of federalism,” says Achary.
“And then under Article 256, the government can issue executive orders to the state governments to act in accordance with the executive directions of the central government. Now if the state governments don’t obey that, then Article 365 states that if the state acts in violation of direction of the central government, then it can be concluded that the constitutional machinery has broken down and Article 365 comes into operation. So, these are some of the provisions of the Constitution which actually violate the federal system,” he added.
Politics over federalism
Over the years, political deliberation seems to have surpassed the administrative and financial aspects of the Union-state relations in India. What needs to be noted is that the discontent and allegations of muzzling the federal structure mostly come from states ruled by Opposition parties.
The states having the governments of those parties that form part of the central coalition give the impression of having little conflict with the Centre. Their complaint is submissive and the perception is that they get particular contemplation and hold in matters of resources approved by the Centre.
As a consequence, it is alleged that the Centre is being partial against the states having governments of the opposition parties.