Concept of Federalism in India

India getting together for a single cause is really a great sight to watch which generally happens only during Cricket Matches. But in the last few days the scenario seems to be changed here and the world has witnessed this change guided by non-violence movement which used to prevail only during the Pre-Independence struggle led by Gandhiji. The Anna Hazare movement for eradication of the evil of corruption got people at large on the streets. People even with the tiniest hope of removal of corruption from our system open heartedly welcomed this movement and tried to be a part of the system in one or the other way. The demand was for a body LOKPAL to be formed which could work independently and take care of the issues pertaining to corruption in the Government itself. This movement got the government heart beating and so finally they had to accept the bill prepared by the Civil Society under the guidance of Anna Hazare. But just before the final acceptance by Government there were just 3 issues which were to be sorted out. And one of the three issues was Appointment of Lokayukta in the states through the Lokpal. Having a first look on this point a common man would think about the issue in not accepting such a small point. But its the Federal Structure of our Constitution which made government think before accepting this point.

The Indian Constitution is a federal structure as a clearly visible demarcation of boundaries between central and the state government similar to that of America could be seen. This clearly reflects in the Legislative and Executive authority divided between the centre and the state. This is the first and foremost thought that strikes a common man on hearing Federalism.

There are some essentials for a traditional federal system, namely, Supremacy of the Constitution, Division of power between the Union and State Governments, Existence of an independent Judiciary, Rigidity in the procedure for the amendment of Constitution. Blending of these essentials in a constitution gets it to a federal structure.

A federal constitution establishes a duly polity with well defined horizons of authority between the Union and the States, to be exercised in the fields assigned to them respectively. They generally cannot intervene into authorities of each other. But whenever there is a common issue arising then the Judiciary comes into play if not mentioned in the constitution. If any dispute between the Union and State arises for which there is already a mention in the constitution then judiciary would mostly go by the constitution unless it feels the need of the hour to have a thought over it.

A Written Constitution is also an essential for a constitution to be federal. The essentials of Supremacy and Rigidity of the Constitution can be worked upon much easily on a written form of Constitution. It is not that any law is passed at the center but it is the Constitution itself that divides the Legislative and Executives between the Union and the States.

India is sometimes also claimed to be non-federal in matters where Center impinge upon the areas to be intervened by state only. It infringes the principle of federalism and hence also said to be in a unitary form of government. The phenomena of such unitary form of government arise only during the period of wars or emergency period.

An issue involved over the exercise of sovereign powers by the Indian states in the matter of State of West Bengal v/s Union of India for which the apex court held that the Indian Constitution did not propound the principle of absolute federalism.

In Gangaram Moolchandani v/s State of Rajasthan the Supreme Court said “Indian Constitution is basically federal in form and is marked by the traditional characteristics of a federal system, namely supremacy of the Constitution, division of power between the Union and States and existence of Independent Judiciary.”

In the case of Kesavananda Bharati v/s State of Kerala, the Supreme Court gave the ‘Basic Structure Doctrine’ in which it states that Parliament can in no terms alter the basic structure of the constitution like secularism, democracy, federalism and separation of powers.

The Supreme Court is an independent authority to declare the Acts of the Union and States ultra-vires if either of them entrenches the defined powers of each other.

So a very well written constitution has helped us maintain the federal structure granted to us by itself. So just barring certain situations Indian Constitution is a federal structure. 

Prevention of Communal & Targeted Violence Bill, 2011 : A Mockery??

“Having attracted criticism over some clauses of its draft of the Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011, the Sonia Gandhi-led National Advisory Council (NAC) on Wednesday 22^nd June decided to affect a number of amendments — 49 in total — to the earlier draft.”

This is what all have read in the newspapers of the very next day then would have come to know that there is some bill named Prevention of Communal and Targeted Violence (Access to Justice and Reparations), 2011. Then even having a look at the large number of amendments the council is about to make this would have brought a smile on a common man’s face and a usual thought of “kaaydo ghadvamaj atli taklif che to kemnu enu palan thase (how could we think of implementation of law where we are having such blunders in formation of a law itself)”

The definition of group as given in this act could be seen as the root of the controversy over this bill. Group as defined under Sec 3(e) of this act is ‘a religious or linguistic minority, in any State in the Union of India, or Scheduled Castes and Scheduled Tribes within the meaning of clauses (24) and (25) of Article 366 of the Constitution of India.’ This could be easily read and understood as no protection to a member of the majority community is given under this act. This could also be interpreted as such communal violence is only initiated by the members of majority community and not by minority and even if a large number of majority community members bear the brunt of communal violence, they will not be victims of “targeted violence”.

Various other definitions under this act such as communal violence and victim as per Sec 3 (c) and 3 (j) are also somewhat difficult to understand or we can say are too easy to manipulate. Most of the definitions in this act revolve around the definition of group given under this act. So till we get a better definition for group under this act the act would be read just to favour the minority as per the claims of their being a minority.

The definition of Hostile Environment against a group as in Sec 3 (f) needs to be worked a lot. It means any intimidating or coercive action by a majority against a minority group by virtue of his or her association with that group and then five sub-clauses are given to cover the action that can create such hostile environment. And when the fifth sub-clause is read then it could create a confusion as it says ‘any other act, whether or not it amounts to an offence under this Act, that has the purpose or effect of creating an intimidating, hostile or offensive environment.’ Even any such video, pictures or any such material which could create any such offensive environment would be covered under this section. Thus with reference to this provision the producers of the movie Gadar would be punishable under this act. As there is visual of a train filled with dead bodies and some written comments which could be termed as offensive if we want. This sub-clause completely hands over the power of deciding whether the act committed is of such a nature or not to the deciding authority. But the problem is that no such authority has yet been finalised which could decide on whether the act is of such a nature or not.

Sec 8 of this act covers the term Hate Propaganda which as per this act is so broad that it would be difficult to separate any conduct in a public gathering or even any just above normal speech or behaviour by a person addressing public at large. Any such use of words or even any visual could lead a person to be found guilty of having Hate Propaganda. A speech that is made in a politically sensitive area may be qualified as hate propaganda to be knowingly directed against the people of the minority group and shall attract a punishment of three years as per section 115 of the Act. And this may also create differences in the application of law as a statement made in Gujarat can have different effect if made in Assam.  So first need would be to decide what act and upto what limits such act would be covered in the Section 8.

Sec 20 of this act says ‘The occurrence of organised communal and targeted violence shall constitute “internal disturbance” within the meaning of Article 355 of the Constitution of India and the Central Government may take such steps in accordance with the duties mentioned thereunder, as the nature and circumstances of the case so requires. It intends to arm the Centre with runaway powers to intervene in state affairs, creation of overlapping authorities and selective definition of victims. This leads to falling afoul of federal principles set out in the Constitution’s seventh schedule that distributes legislative powers between the Centre and the States.

Sec 74 if read widely it explains that a person who is found guilty under this act has the burden of proving his innocence which is against the very ethos of Criminal Justice system. i.e a person is innocent unless he is proved guilty.

The bill in its present form without any amendments would be a mockery against the core principles of criminal law. The questions that need to be answered in the form of the upcoming amendments in this law should also answer the unanimous power given to National Authority over State Authorities even over the objects mentioned in the state list of the constitution.

A balance is expected in the form of the amendments that are to be made such that we do not need to check whether the victim is from majority or minority community. We do not need to wait for the deciding authority (if constituted) to make statement whether the speech made by an individual is of coercive nature or not. We do not have to accept the decisions randomly made by the central government who may or may not know the current situation prevailing in that very state.

There are still a lot of queries to be pointed out in this bill. But for now let us hope that we may get answers to some of these queries in the form of amendments in the coming days.