The uniqueness of the Constitution of India is that it is neither federal nor unitary but an amalgam of both. The distantly nearest with it is the constitution of the United States of America but the common factors of comparison are a few and far between the two. The US constitution is truly Federal in its form and functioning. The powers and duties of the Federal Government and the States are clearly divided. Neither of which is subordinate to other. But in the context of India, it is clear that the Union of India has certain overriding powers over the states.
Our Constitution does not set up the States as rivals to one another or to the Union. Each is intended to work harmoniously in its own sphere without impediment by the other. In spite of occasional disagreements between the Union and the States, the national consensus has never digressed from the existing constitutional arrangements which provide for a strong centre with all the possibilities of decentralisation. However, sometimes problems arise, when some important legislations of Parliament enacted for the welfare of the people are given short shrift by the State Governments.
This issue has been comprehensively dealt with in a recent judgment in ‘Swaraj Abhiyan vs Union of India and others’ by the Supreme Court of India. The court has criticised the Centre for its inaction and the states which defied the National Food Security Act, 2013.The Supreme Court has reminded the Central government of the powers vested in it by virtue of Article 256 of the Constitution and therefore the Government of India ought to ask the State Governments and Union Territories to make functional those bodies and authorities that are mandated by a law passed by Parliament, such as the National Food Security Act, 2013. Regrettably, Article 256 of our Constitution is largely a forgotten provision, which has two parts: the first part of the Article says the executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State. The second part explains that the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose. This provision is there because the Centre does not have its own administrative machinery,
If the first part is complied with voluntarily by the States, it would seem that the second part might be redundant. On the other hand, if the second part indeed serves the purpose at times, it would show that the States are indeed guilty of violating the first part of the article, resulting in the Union issuing necessary directions to them to comply with the parliamentary laws, Therefore, the Government of India cannot plead helplessness in requiring State Governments to implement parliamentary laws.
Another question is: What remedy does a citizen have if the Government of India does not issue such a direction and the State Government or the Union Territory does not implement a law passed by Parliament? Although Article 256 is silent on the consequences of non-compliance, the drastic sanction is found in Article 365. Under this provision, where any State has failed to comply with, or to give effect to, any directions given in the exercise of the of the executive power of the Union under any of the provisions of this Constitution, it shall be lawful for the President to hold that a situation has arisen in which the government of the State cannot be carried on in accordance with the provision of the Constitution. But the use of this provision is easier said than done because that would lead to confrontation between the Union and the States, which has never been the intent of the framers of the Constitution.
These questions have arisen in the context of the seriousness with which the National Food Security Act, 2016 – welfare legislation – is and should be implemented, which specifically imposes obligation upon the State Governments to put in place an internal grievance redressal mechanism. It may include call centres, help lines, designation of nodal officers, or such other mechanism as may be prescribed by the respective Governments for expeditious and effective redressal of grievances of the aggrieved person in matters relating to distribution of entitled food grains or meals.
Food security is undoubtedly extremely important and as observed by this Court inPeople’s Union for Civil Liberties (PDS Matters) v. Union of India and ors, that mere schemes without any implementation are of no use. Similarly, one may ask what use a law is passed by Parliament if State Governments and Union Territories do not implement it at all. The Supreme Court said that, ‘in our view, the draft Model Rules circulated by the Central Government need serious consideration by the State Governments and as advised by the Central Government, the grievance redressal machinery should be independent and its functioning should be transparent.’
The Court said that the importance of the State Food Commission cannot be minimized by the State Government, if the NFS Act is to be faithfully implemented. In this regard, the State of Haryana has openly said that there is hardly any work for the State Food Commission. With such an attitude, it is very unlikely that any progress will ever be made either by the State of Haryana or the State Food Commission in the matter of food security. The Court observed that what concerns is the implementation of National Food Security Act. The Act was made in furtherance of India’s commitment to multilateral treaties and this Court’s persistence to alleviate the condition of rampant malnutrition prevalent in the country. The unique feature of this Act is that the Centre has de-centralized the regulatory aspects within the Act by empowering the institutions at the bottom of the pyramid.
It is to be noted that State enforcement of Union laws usually gives rise to difficult questions concerning the sustainability of co-operative federalism, which has been accepted as our core constitutional ethos. In Jindal Stainless Steel v. State of Haryana, a nine-judge bench of the Apex Court has reiterated the principles of co-operative federalism in India. Common philosophy which runs through our Constitution is that both Centre and States have been vested with the substantial powers which are necessary to preserve our unique federation with clear demarcation of power. Calling India as quasi-federal might not be advisable as our features are unique and quite different from other countries. Courts in India should strive to preserve this unique balance which our framers envisaged, any interference into this balancing act would be detrimental for grand vision proscribed by our makers.
However, the Court skirted the main issue that if the States do not comply with their moral and constitutional duties, then what should be done by the Union government? It merely observed that ‘the principle of federalism is that India has divided sovereignty in the form of Centre on one hand and States on the other. Each power house is independent in its own terms. The constitutional scheme invariably leads to the conclusion that at times these institutions meet and interact at various levels to achieve the cherished constitutional goal of co-operative federalism. It is to be noted that our Constitutional set-up mandates that Centre is not powerless which is apparent from various Articles of the Constitution. Further, it is not proper on the part of the States to ignore the plight of the common man in enforcing such important legislations, more so when such legislation is welfare legislation.’
The Court advised that a meaningful dialogue between the Centre and the States should be put in place to resolve the issues which have emerged in this case in the spirit of co-operative federalism. Combined effort, both by Centre and States, needs to be taken for effective implementation of the Act especially in the draught affected areas so as to save people from abject poverty and poor quality of life.’
Thus, the Supreme Court has ruled in no uncertain terms that Centre would be very much within rights to give directions to the States for implementing the Central Act but it has clearly shied away from suggesting that in case of non- compliance the centre can even hold out any threat of Emergency as provided in the Constitution. When the morality does not prick, then pain of punishment becomes the necessary dose of medicine.