V SEMESTER B.A.LL.B.(HONS.) COURSE

ARTICLE SUBMISSION

A Critical Analysis of Evolution of Cooperative Federalism and Obstacles Ahead for Its Development

For the academic year 2014-15

Prepared & Submitted by: Submitted To :

Bharat Singh (12BAL112) Ms. Alinkrita Tripathi Acknowledgment
This study is the culmination of the efforts of a number of individuals and organizations. I gratefully acknowledge the support and inspiration of which helped me to accomplish this project. I gratefully acknowledge all the sources from which this report has been enriched.
Though I have taken all efforts to make the report flawless, I take responsibility for any mistake appearing inadvertently.

DECLARATION
I hereby declare that the project work entitled “A Critical Analysis of Evolution of Cooperative Federalism and Obstacles Ahead for Its Development” submitted to the Institute of Law Nirma University, is a record of an original work done by me under the guidance of Ms. Alinkrita Tripathi who is the Assistant Professor in ILNU. The results embodied in this thesis have not been submitted to any other University or Institute for the any award or degree.

A Critical Analysis of Evolution of Cooperative Federalism and Obstacles Ahead for Its Development
India is the largest democracy which is reason of pride for every Indian. Democracy always reflects view of majority, so now question arises what about those people who are in minority or culturally diverse but still they are part of this nation like Tamils, north east people, Bengali and many other people who are different from rest of India. The answer to this problem lies in federal structure of Indian constitution, which links it to the voice of the minority borrowing a flavor of social justice. This ensures harmonious execution of the entire system. Federalism, cultural and ethnic diversity have given the country’s political system great flexibility, and therefore the capacity to withstand stress through accommodation. However continuation of this harmonious functioning of the entire system requires not only simple federalism structure but cooperative and constructive federalism is needed to continue this tradition and that is why in this whole research emphasis will be based on roots of cooperative federalism and why it is needed for smooth functioning of nation. Role of judiciary is also important to discuss regarding the operation of cooperative federalism because judiciary time by time defined this concept and played a vital role in evolution of cooperative federalism. Cases like State of West Bengal vs Union of India, State of Rajasthan vs Union of India and S.R. Bommai vs Union of India reflects how judiciary evolved this concept and maintained a balanced distant between functioning’s of Sates and Union. Another significant aspect which is important to discuss is future of federalism. Current scenario of India is miserable because conflict between States and Union leading delay or failure of development projects or security bills, conflict is increasing day by day. Every step of Union is considered as violation of federal structure of the Constitution. Hence this will be discussed in research that what are the obstacles which create problems between are States and Union and finally what might be the probable solution of this problem.
Key Words: Democracy, Cooperative and Constructive Federalism, Role of judiciary, Future of Federalism, Constitution
Introduction
Federalism in India looks similar to other federations like America but its spirit is entirely different from any true federal country like America or other. Before discussing about federalism in India, we would try to know true meaning of federalism.
Federalism is a structure of government in which the same country is administered by two levels of government. By and large, union government governs issues that affect the entire nation, and smaller subdivisions that are states administer issues of local concern. Both the union government and the state government have the power to make laws and both have a certain level of autonomy from each other. America is true federal structure of governance including of the union or federal government, and the government of the individual states.
Indian federalism is distinct from US federalism. India is not a set of independent states coming together by surrendering some of their rights to union government. In India it is the union from states derives their power. Sovereignty and the powers of governance are distributed and shared by numerous entities and organs within the Indian constitutional system.
Hence we can say that Indian constitution is neither true federal nor true unitary like England where all power of governance is in hand of union government, but this position of Indian constitution leads to question that what is the true nature of Indian constitution?
This issue first time was discussed at length by Apex court of India in the case of State of West Bengal V. Union of India. In this case it was claimed by State of West that Indian constitution is absolute federal in nature therefore union does not have power of acquisition of land in states, further petitioner argued that in its territory state is sovereign and can exercise sovereign functions. Apex court of India held that the Indian Constitution did not propound a principle of absolute federalism. Apex court stated that absolute federalism reflects these characteristics: 1) Dual Citizenship 2) Power of amendment in constitution to the states 3) Independent Judiciary
Indian constitution does not reflect any such characteristics that is it not absolute federal in nature.
Another case law which confirmed the status of Indian constitution as “not absolute federal” was Kesavananda Bharati vs. state of Kerala, the Supreme Court decided that all provisions of the constitution as well as fundamental rights can be amended. Though, the parliament cannot alter the basic structure of the constitution like secularism, democracy, federalism, separation of powers. This is called the "Basic structure doctrine", this decision is extensively regarded as an important part of Indian history.
Consequently Indian constitution can be referred as “quasi-federal” in nature, in as much as it is both federal and unitary. It can be called federal in nature because of the distribution of powers between the Union and States and it may be considered unitary because of the retention of Union control over certain State matters, and also because of the constitutional provisions pertaining to emergencies (particularly article 356) when all powers of a State would revert to the Center.
It has been established that system of government in India is “quasi-federal” in nature and powers are not absolutely distributed to any of the government that is union and state, but this type of system of government always leads conflict of interest between union and state. To resolve this enigma we have developed mutual harmony in our system of government which is called Co-operative Federalism.
Cooperative federalism is a kind of federalism in which union, state, and local governments work together cooperatively and jointly to solve common problems, rather than making policies separately but more or less equally. Cooperative federalism was originated in America between the period of 1937 to 1963. This was the second Stage of American Federal constitution. It was called “cooperative federalism” because the new programs of the new system required cooperation across all levels of government. Franklin Roosevelt’s thought for new system sparked a revolution in national policy of America and an increased role for the national government shifting the balance of power.

Development of Cooperative Federalism in India
When India got independence in 1947, there was only one party to rule in whole nation that is why in beginning our system of governance was more centralist. After the fall of congress in many states, there was rise of lot of state parties which led to federalist form of government in India, but coalition and change in dynamics of Indian politics, have led to the shift from federalist to centre - federalist forms of federal governance. Increasing influence of regional parties, need of coalition and strong judiciary led to form of that governing system in which there will not be conflict of interest between union and states and disputes will be resolved with cooperation. This governing system was called Cooperative Federalism.
In independent India first time we found characteristics of cooperative federalism in functions of states and union in the case of Jaora Sugar Mills v State of Madhya Pradesh. In this case, the state of Madhya Pradesh enacted the Madhya Pradesh Sugarcane Act, 1958 which made a sugarcane cess payable as given under it. The act was later found to be unconstitutional as the legislative competence for the same rests with the Centre under the Union list. The union, however, felt that this along with numerous other state acts suffered from the same Constitutional inconsistency following which they were passed and received Presidential consent. The appellants challenged the constitutional validity of such an act arguing that it was a piece of “colorable legislation”. The Supreme Court held that however the aim behind the act was questionable, yet the act was constitutionally valid.
Judiciary played vital role to evolve this concept. Justice Beg described the importance of cooperation in governance and said, “A conspectus of the provisions of our Constitution will indicate that, whatever appearance of a federal structure our Constitution may have, its operations are certainly, judged both by the contents of power which a number of provisions carry with them and the use that has been made of them.”
Judiciary at many instances defined concept of cooperative federalism. In the case of D. K. Trivedi v State of Bihar union took control of regulation of mines and development of all minerals and the state was only delegated with rule-making powers for the job of regulating minor minerals. The apex court held “As jurisdiction of mines and minerals is under the jurisdiction of the Union and the states under List I and II respectively, the Union legislation would stand. Also, they upheld the delegation of said power to the state as being constitutionally consisted with Article 154(2) (b)”

Obstacles Ahead Cooperative Development in India
Cooperative federalism has been important part of Indian democracy since inception of India but after the advent of regional parties future of this concept looks uncertain. States are now interfering in to foreign policies of India and they want to play big role to determine foreign policies of India. Recent example of this tussle was Stand of Mamta Banerjee on River Teesta. She blocked step of union government to sign crucial treaty regarding the dispute on Teesta river. Tamil Nadu legislative assembly passed a resolution, asking to union government for imposition of economic sanctions on Sri Lanka. Jammu & Kashmir and Punjab also have been seeking the union government to take their stand on board when discussing water issues with Pakistan. A number of states on the grounds that the move would harm the interest of farmers and retailers in their states opposed FDI in retail, forcing the union government to delay the move. There were lot of bills which were important for national interest but because of lack of cooperation between the state and central government led to delay or cancelation of those bills like the proposed National Counter-Terrorism Centre (NCTC), The Lokpal Bill, the amendment to the Railway Police Force Act to put an end to state controlled Government Railway Police (GRP) and the Border Security Force Amendment Bill increasing the policing powers of the Para- military forces stay undecided with strong resistance from state parties and affected states with strong arguments about the interpretation of federalism in the Indian Constitution.
Present scenario of Indian democracy may be reflecting a situation in which at every issue states blame union government for breakdown of federal structure of India constitution but in the past there were numbers of instances when union tried to curve power of states or interfered into subject matter of states. In 1973 due to Mrs Indira Gandhi’s tendency to amend almost all of the constitution, in Kesavananda Bharti v State of Keralathe apex court developed the ‘Basic Structure’ doctrine to save the Constitution from the absolute sovereignty of the Union Parliament. Chief Justice Mr. Sikri in this case stated, “The federal character of the Constitution is a feature of the basic structure of the constitution which is not open to whimsical amendments and the doctrine of supremacy of the constitution is part of basic structure of constitution.”
Declaration of emergency in 1975 was huge damage to federal structure of Indian constitution. This step of Mrs. Indra Gandhi not only led to damage the federal structure, it also sowed the seeds of secessionist aggressive movement among the Sikhs in the state of Punjab. Many times because of political rivalry union imposed president rule in states and suspended elected government. To prevent this, amendments were introduced in Article 356 by the 44th amendment. By deleting the clauses in Article 356, judicial review was permitted in the case of invocation of Article 356(1). The Courts now have jurisdiction to take part in preventing a mala-fide use of power to impose President’s rule in stares. Case of S.R. Bommai v Union of India was a landmark judgment of the Supreme Court of India, where the Court discussed elaborately provisions of Article 356 of the Constitution of India and pertaining issues. This case had vast effect on Centre-State Relations. The misuse of Article 356 that is “President rule” to impose central authority on states, was ended after this case. Justice P.B. Sawant in this case stated, “The courts should not lightly refuse to put into effect judicial review when as a matter of common awareness, the emergency has ceased to exist. This amendment has been encouraged not only by the misuse of the Proclamation of emergency arising out of war or external aggression, but even more by the wholly inexcusable Proclamation of emergency issued in 1975 to protect the personal position of the Prime Minister. Apex court of India though most of the time played significant role in evolution of cooperative federalism but there are some instances when judiciary showed very limited interferences in union – state dispute, like in the case of State of Rajasthan v Union of India, states of Rajasthan, Punjab, Madhya Pradesh, Bihar, Himachal Pradesh and Orissa challenged the adequacy of grounds of action by the governor under Article 356(1). Chief Justice H.M. Beg accepted the domination of union and held, “Sufficiency or inadequacy of the grounds for declaration of emergency can not be gone into by the Court. Only if the reasons are disclosed to the public by the Union Government which revealed that a constitutionally or legally barred or extraneous or collateral purpose was sought to be achieved”

Conclusion
As it is mentioned in the paper that past was about continuance intervention from union in the subject matters of states, but at present due to the significant changes in Indian political scenario, regional parties are dominating the policies of Union. The dispute is that whether theses regional parties are using federalism as a tool to attain their means or in reality they want to establish cooperation between state and union. We cannot ignore their demands because ultimately they are the one who represent local concerns but it is also bitter truth that local concerns can never lead to successful union policy because by one way or other it will be beneficiary only for particular state but for the diverse nation like India, we always need uniformity. To resolve this problem regarding the the local concerns and uniformity both Centre and State governments must go together to the task of preserving our nationhood and this is only possible through constructive cooperative federalism which requires a great deal of dedication. There is no other way to get our aim except cooperative federalism.
Finally in words of Mr. Nani Palkhivala, “People of several states sink or swim together, and in the long run, prosperity and salvation are in innovation and not in division; mutuality and not conflict; cooperation and not competition.”

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[ 2 ]. 1 SCR 371(1964)
[ 3 ]. 1 SCR 1(1978)
[ 4 ]. 2 SCR 644 (1994)
[ 5 ]. Available at http://www.law.cornell.edu, visited at October 31, 2014
[ 6 ]. Supra at 1
[ 7 ]. AIR 1973 SC 1461
[ 8 ]. Gerald Brown, “Cooperative federalism” available at http://www.defendruralamerica.com
[ 9 ]. 1966 SCR (1) 573
[ 10 ]. 1978 SCR (1) 1
[ 11 ]. 1986 SCR (1) 479
[ 12 ]. Supra at 3
[ 13 ]. 1994 AIR SC 1918
[ 14 ]. 1977 AIR 1361