Category Archives: Federalism

With the increasing demand by Nigerians for the adoption of the 1963 Republican Constitution to replace the existing 1999 Constitution, KUNLE ODEREMI writes on some fundamental provisions in the document, coupled with the opposition to the ongoing moves to amend the constitution.

UNDER 21 years of civil dispensation, the 1999 Constitution has undergone four amendments through 1st, 2nd, 3rd and 4th Alteration exercises. Nonetheless, midwifed by the then military government of Gen Abdusallam Abubakar (GCFR), based on the Constitution Decree No. 24 of 1999, fundamental issues of devolution of powers, federal structure and true federalism, the Nigeria Police and Security architecture, judicial reform, fiscal federalism devolution of powers, forms and type of government persist.

The Supreme Court of Nigeria affirms that Federalism as a legal concept generally connotes an Association of states formed for certain common purposes, but the State retains a large measure of their original independence or autonomy. It is the co-ordinate relationship of power between the individual States and the National Government which is at the centre. The court adds that Federalism, as a viable concept of organising a pluralistic society such as Nigeria for governance, does not encourage so much concentration of powers in the centre which is the Federal Government. In federalism, the component states do not play the role of errand boys.

In another landmark judgment, the apex court in the country declared that each government in a federation exists not as an appendage of another government but as an autonomous entity in the sense of being able to exercise its own will in the conduct of its affairs, free from direction from another Government. According to observers, these cardinal principles of federalism are largely in short supply and applicable in the country. They say what indeed obtains is a quasi-unitary system cloaked in federalism. This fact is underscored by a renowned constitution lawyer, Professor Ben Nwabueze (SAN) that one single constitution for all the governments involved both Federal and state in a federation is a manifest contradiction.

A former general secretary f the Nigeria Bar Association (NBA), Chief Debo Adesina, buttressed the argument with the provisions of the 1960 Independence Constitution, which provided for separate constitutions for both the federation and the regions as separate Schedules to the Independence Order-in-Council.

Ditto the 1963 Republican Constitution that provided for the establishment of regional constitutions for the then three regions in the federation. Section 5 (1) thereof stated as follows: Subject to the provision of this Constitution (Federal Constitution) the Constitution of each region shall have the force of law throughout the region. In the spirit of federalism, there was a specific provision in that constitution that the Executive Authority of a Region (which extended to the execution and maintenance of the Regional Constitution), should be exercised so as not to impede or prejudice the exercise of the Executive Authority of the Federation or endanger the continuance of the Federation. It is against these background and, coupled with issues threatening the corporate existence of the country that many, including Adesina, situate what is regarded as the structural and systemic challenges facing the country, especially the inadequacies of the 1999 Constitution. There is the vexatious issue of over concentration of powers at the centre at the detriment of the federating units.

According to constitutional experts, the 1954 Constitution had 43 items in the Exclusive Legislative List, 45 items in the 1960 and 1963 Independence and Republican Constitutions respectively;66 items in the 1979 Constitution and 68 items in the 1999 Constitution as amended. Those figures underscored the geometric rise in the number of items on the Exclusive Legislative list and the awesome powers acquired by the central government at the expense of the federating units. Therefore, structure and power imbalance are evident in the powers of the federal government over such as policing system, census, labour, trade unions and industrial relations, mines, minerals, natural gas, drugs, evidence, trade and commerce as contained in the Exclusive Legislative List. This is in addition to 30 items under the Concurrent Legislative List for which both the states and the central government have powers to make laws subject.

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The ABC of 1963 Constitution - NIGERIAN TRIBUNE

Recent assembly elections threw up three strong state governments that can alter Centre-state relations. Besides having fairly strong majorities, these governments, in contrast to some others, are politically and ideologically awake to the idea of the states autonomy. How will this affect the prospects of Indias federalism?

The Indian case for federalism is strong, but the Indian practice of federalism is weak. This is less due to a centralising constitutional architecture and more because of the lack of appreciation about what federal practice can do for democracy and unity. Ironically, federal practice becomes weaker particularly when it is required more. When parts of the country are restless over their identities, policy response tends to turn more into a hardline non-federal approach. When national leadership emerges as larger-than-life, federal practices are eclipsed.

The new regime brought in by the BJP did invoke the federal principle during its 2014 campaign; however, it was quickly banished from practice not just because the regime is sceptical of states powers but also because, by its very character, it has been averse to sharing of power. Historically, federal practice has coincided with the rise of state parties. They have usually adopted a federalist stand for pragmatic reasons. If the federalism of state parties appears opportunistic, the federalism of the Congress under the UPA was more out of compromise and helplessness. This background helps us understand the expectations of federalisation amid the current wave of centralisation.

While one important aspect of Indias federalism, the special provision for Jammu & Kashmir, was done away with after the second victory of 2019, the regime had already begun corroding federal practices by destabilising non-BJP state governments. The pandemic became the most effective legitimation of centralisation so far. It was a test of Indias federal dynamics in that it required both central initiative and autonomy of state-specific responses. Instead, it saw centralisation where not required and abdication by the Centre when required the most.

This resulted in states asking the Centre to take up responsibilities, allowing the Centre to become more overbearing. Politically, the central government has been more or less successful in ensuring that citizens will now blame their respective state governments and the Centre would be free to claim credit for relief measures, provisioning of medical facilities and coordinating vaccination.

How can the states retrieve their autonomy? One can imagine four routes to a return to a semblance of federal politics fiscal strength, governance, political strength and regional identity. As Indias economy declines and faces crises, it is unlikely that the Centre would agree to more resources to states. Nor would states have the skills to genuinely exercise fiscal autonomy. With every cyclone and flood, the clamour will be for more aid, making states severely dependent on a vengeful Centre. The most effective terrain where states can assert autonomy and compete with the Centre is that of governance. But the record of states here is not very attractive. Kerala may claim a decent handling of the pandemic or West Bengal seems to have delivered better on some welfare schemes, but overall, both the Congress and non-Congress/non-BJP governments cannot advertise themselves in matters of governance nor claim a better record on democratic practice.

As far as political autonomy is concerned, it would be difficult for the states to reclaim that territory with the unprecedented interference in state administrations and the fear instilled among state bureaucracies. Besides, non-BJP parties are themselves centralised as much as the BJP. State parties are probably even more so and hence averse to the principle of power sharing. They thus become weak political sources for demanding autonomy. Slogans of autonomy may be good for grandstanding, but the autonomy of a Jaganmohan Reddy or a KCR or a Mamata Banerjee would produce neither federalisation nor democratisation.

Thus, states can only go back to emotional platforms of regional pride something the Trinamool Congress did during the elections. Punjab and Maharashtra have been tamely attempting to ride this platform for a while. As the instances of Punjab of the 1980s, Tamil Nadu, J&K or Nagaland would show, regionalist platforms require political skills, else regionalism becomes counterproductive. Instead of strengthening regional autonomy, it becomes a tool for more centralisation and repression. The current federal deadlock, however, leaves little room for states except the route of regionalism in spite of the challenges and risks.

While the newly elected Tamil Nadu government is indeed making efforts to steer the debate to economic issues, the politics of federalism is bound to remain confined to regional identity issues. Interfering governors, central deputations to favoured officers, personal slights against state leadership, or the impatient emphasis on Hindi, would be the flashpoints which states will appropriate for consolidating regional pride.

If we roughly distribute states on the twin axes of the politics of regionalism and federal confrontations with the Centre, we shall find more states located high on the former than states engaged in the latter. The majority of states today are marked by low intensity regionalism and low intensity federal confrontation. If states now move from there to high intensity regionalism, then regionalism will be an issue that the Centre will have to negotiate. This pathway might not in itself consolidate federal politics but it has the potential of driving politics toward federalisation even BJP-ruled states are not averse to regional sentiments, as in Karnataka or Haryana and probably Bihar.

This new possible wave of the politics of regionalism faces two critical hurdles. One is that the politics of regional identity is isolationist by nature. Each region gets entangled more into its separate existential and imaginary glory rather than coordinating with other regions vis--vis an intrusive Centre. In the last seven years, non-BJP parties and governments have consistently failed in evolving a durable or impactful forum or even casual conversation on Centre-state relations. The second hurdle is the political savvy of the BJP. The BJP has been selling a pan-Hindutva with regional variations. Long ago, it experimented with this route by first enlarging the issue of Gujarati asmita and then conflating it with Hindutva. That is exactly what the party experimented with successfully in Assam but failed to implement in West Bengal. So, an imminent rise of regionalist sentiment is nevertheless not a guarantee of federal consolidation or a Centre-state equilibrium.

This article first appeared in the print edition on June 18, 2021 under the title Regional without federal. The writer, based at Pune, taught political science and is chief editor of Studies in Indian Politics

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With BJP in Delhi, states must find ways to regain autonomy - The Indian Express

However, the occasion was quite auspicious for the social forces in the country to showcase their interests. The reach of this years celebration was extensive. Nigerians overseas, such as America and Britain trooped out in their thousands to rail against misrule in Nigeria and the general insecurity in the country and the effusive bloodletting, not seen in war-ravaged countries like Somalia, Syria and Libya. On their part, the social forces that eased out the military from the political space then regretted that the expectations of the period have not been met as civil rule has been hijacked by the military men donning civilian outfit (agbada/babanriga). The rule of law has been observed in the breach: In the scholarly words of political scientists, democracy has not yet attained the status of the only game in town.

Elsewhere in the country, mass movement for separation from the current state arrangement in the country has been raging. The Odua Republic movement has become pronounced besides the Indigenous People of Biafra (IPOB). Promoters have been arguing that since dialogue has not worked the best option for self-actualisation is to opt out of the current de-empowering and slavish arrangement. In observance of the Democracy Day, the federal capital territory of Abuja, protesters were out with placards to express themselves over the commonplace insecurity in the country and the seeming helplessness of the prevailing administration. Ironically, security apparatuses were deployed against peaceful protesters on a day declared as Democracy Day. Gleefully, they shot teargas and life ammunition to dispatch the anti-government protesters while the rented crowd drumming up support for the administration was left unmolested. This development is curious and incredibly so. This behaviour left observers of the Nigerian political situation no choice than to conclude that democracy is missing in action in the country and the government of the day is de-consolidating democracy.

On the contrary, the government flaunts what it does in the breach. Surprisingly, in a speech our leader delivered on the Democracy Day, there was a gospel of freedom in it. In his words, It is a celebration of freedom and a victory for one people, one country and one NigeriaAs with all democracies we will always be going through improvement processes in our desire to reach the goal of a mature democracy, a strong, evolved and integrated nation state to be reckoned with globally. In what appeared to be fencing off of the agitation for restructuring, the load was passed to the National Assembly. While this government is not averse to constitutional reform as part of our nation building process, everyone must understand that the primary responsibility for constitutional amendments lies with the National Assembly.

Government deflection of responsibility and seeming recalcitrance will not help the goal of peace. It should acknowledge the anger in the land. These outpouring of grievances, if anything, goes to underline the need to return the country to genuine federalism to allow for peace, stability and development. Today is the 34th time that this newspaper has told the leader of the most populous nation in Africa and indeed the black race that unless he is committed to restructuring of the country within the context of federalism, there may be no legacy for him in his eight years as an elected leader.

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Federalism is the answer, after all - Part 34 | The Guardian Nigeria News - Nigeria and World News Opinion - Guardian

Deji Elumoye in Abuja

President Muhammadu Buhari yesterday broke his silence over the contentious issues of restructuring and true federalism/devolution of power, saying they were constitutional issues which only the National Assembly could handle.

He, however, stressed his belief in devolving more power to the people.President Buhari spoke while receiving in audience members of the Nigerian Inter-Religious Council (NIREC) led by Co-Chairmen, Sultan of Sokoto, His Eminence, Alhaji Muhammad Saad Abubakar and President of Christian Association of Nigeria (CAN), His Eminence, Rev. Samson Supo Ayokunle, at the State House, Abuja.

The President said: On the contentious issue of restructuring or true federalism or devolution of powers, like you all know, this is a constitutional matter with which only the National Assembly can deal.

I remain an unapologetic believer in devolving power to the people and that is why I signed the Executive Order granting autonomy to State Legislature and Judiciary. Unfortunately, this was met with some resistance at the state level and led to a more than two months strike action that has cost the country a lot of pain.

Luckily the National Assembly has nearly completed the constitutional review process, which I hope would address some of the burning issues agitating the minds of our people.He assured that efforts were already on to create a more conducive environment to address both direct and indirect causes of challenges including areas of job creation and employment generation, while appreciating religious leaders for their significant roles in national development, particularly in shaping perspectives.

Your role is critical in putting the correct perspective out to Nigerians, he said.On security, the President told the religious leaders that the government was already going after financiers of criminal elements, who also supply them with arms, but were constrained by the strike by Judiciary workers.

According to him, Fortunately, this strike has been called off and prosecution of some of these people would soon commence, while our security agencies expand their network in closing in on the others.

President Buhari assured that the administration remained committed to quickly pushing this dark side of our history behind us and we are currently making sure that funding would not hamper our efforts.

According to him, the last Federal Executive Council meeting approved some funds for the security agencies, which would be put to judicious use.As I mentioned yesterday, in Lagos, we would not relent in our efforts at clearing these criminals from all parts of our land including the forests, he said.

President Buhari said government had the major part to play in providing security, adding: but besides the imperative to abide by democratic processes is the important aspect of support of the citizenry to the security agencies by providing relevant and timely information.

I must confess that I am more pained than anyone can imagine with the on-going security challenges because, like you noted during your meeting, they have increased the hunger, pain and anger in the land, he noted.The President thanked the religious leaders for their patriotism and commitment to ensuring peace and understanding.

His words: I have listened to you and I am particularly happy that your meeting clearly identified specific and major roles for both the Government and the people of Nigeria. This is what has been lacking for some time in the national discourse on addressing our current security challenges.

In their comments, the Sultan of Sokoto, and President of Christian Association of Nigeria (CAN) thanked the President for the onerous assignment of leading the country, advising government to fund the armed forces better to confront myriad of security challenges facing the country, block sources of illegal arms, publish names of those funding terrorism and try them.

They also canvassed the recruitment of more policemen, strengthening of the judiciary, tackle unemployment by creating jobs for youths particularly, and on separatist agitations in the country.

The two religious leaders added that: It is in our togetherness that we are stronger.

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Only NAssembly can Deal with Issues of Restructuring, Federalism, Says Buhari - THISDAY Newspapers

Not a day passes without some attack on the federal structure and infringement of states rights taking place. If one day, the Centre unilaterally announced a vaccine policy whereby states are asked to procure vaccines and pay for them, then another day, the chief secretary of West Bengal is summoned to Delhi to report for duty on the day of his retirement. The next time, the Centre is stepping in to prevent the Delhi government from implementing its door-step delivery of rations.

On another occasion, the Punjab government finds that the Centre has stopped the payment under the Rural Development Fund due to it amounting to hundreds of crores of rupees; it is being penalised for its opposition to the farm laws.

The Prime Minister held two successive meetings of district magistrates of 19 states to review the pandemic measures bypassing the state governments. Not to be left behind, the Union Education Minister held a meeting of Education Secretaries of the states to discuss implementation of the new education policy without the participation of the state Education Ministers.

The list is endless, whether it be the violation of the constitutional scheme of Centre-state relations, the usurpation of the financial resources of the states or the political intervention of Governors and Lt. Governors in matters of state governments.

These are not isolated instances or aberrations. What is happening is a systematic assault on the federal principle of the Constitution and the trampling of rights of states by an authoritarian centralism. This process was speeded up after the pandemic and the emergent provisions of the Disaster Management Act and the Epidemic Diseases Act could be invoked.

The grave assault on federalism and states rights began in the second term of the Modi government with the virtual abrogation of Article 370 by dismantling the state of Jammu & Kashmir. Since then, this attack has become generalised affecting all aspects of Centre-state relations and federalism.

The assault is in three spheres mainly, that is the constitutional principle of federalism, the fiscal aspects of federalism and the political basis of Centre-state relations.

The encroachment of the Centre in areas set out by the constitution as state subjects was seen in the way the three farm laws were adopted which infringed on the state subjects of agriculture and agricultural marketing. The adoption of the National Capital Territory of Delhi (Amendment) Act in March, this year, saw the constitutional arrangement of state powers being blatantly violated with the Lt. Governor being declared the government of Delhi and the state legislatures powers and jurisdiction being further curbed.

The use of Centrally-sponsored schemes to dictate the states policy matters in the spheres of education, health and rural development continues at a vigorous pace.

The fiscal space for the states has shrunk further. The Goods and Services Tax (GST) arrangement has taken away whatever powers of taxation the states had possessed. On top of this, the Centre has, in the past two years, refused to give the states their due compensation, which they are statutorily entitled to, on the plea that GST revenues have fallen.

The last two finance commissions have worked under extraneous terms of reference introduced by the Centre, which illegally attached various conditionalities to a constitutionally-ordained division of resources between the Centre and the states.

The pandemic saw the financial crisis of the states reach a peak when the Centre refused to relax the borrowing limits substantially and, at the same time, health, GST compensation dues and other funds owed to the states. This at a time when the states have to bear the brunt of the expenditure on health and other urgent social security measures to meet economic dislocation caused by the pandemic.

Politically, the Centre is unremittingly hostile towards the state governments run by opposition parties. Governors like Jagdeep Dhankar in West Bengal act as handymen of the ruling party at the Centre. RSS men functioning as Governors are illiterate about the constitutional role of Governors and are more interested in pushing the Hindutva agenda.

The plight of Union Territories is worse. Puducherry had a Lt. Governor, Kiran Bedi, who behaved like a viceroy and was in constant conflict with the elected government. Both in the previous assembly and the new legislature, the three MLAs nominated by the Lt. Governor were BJP men an example of how the party is built from the top.

Lakshadweep is a stark example of an authoritarian centralism gone amok. The BJP man, who is the administrator, has announced a series of regulations which, if implemented, will destroy the social and cultural fabric of Lakshadweep and subject the Muslim population there to the tyranny of majoritarian rule.

This assault on federalism and the diversity underpinning such a system is part of the overall attack on democracy and secularism and hence needs to be opposed and fought. At the forefront of this fight has to be the opposition-run state governments.

The defence of federalism and state rights requires a closer coordination amongst the opposition state governments. Even now, three of the non-BJP state governments of Odisha, Telangana and Andhra Pradesh are half-hearted, or reluctant, to take a firm stand. The three regional parties running these governments should realise that extinction of federalism and undermining of states rights will threaten the interests of these parties in the future.

Federalism is also indivisible. Arvind Kejriwal and the AAP, who supported the abolition of Article 370 must have realised their mistake when the law was amended to reduce Delhi to a glorified municipality.

More broadly, apart from the opposition state governments, all the opposition parties should get together to spell out a platform in defence of federalism, defence of states rights and for restructuring of Centre-state relations something like the resolution of the Srinagar Conclave on Centre-state relations, updated for contemporary times.

The fight for the federal principle and the rights of states is an integral part of the struggle against authoritarianism and for democracy.

(IPA Service)

Views are personal

Courtesy: Peoples Democracy

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An authoritarian regime is assaulting federal principle of Constitution and trampling rights of states - National Herald

By Elo Edremoda, Warri

The Urhobo Progress Union (UPU) has identified restructuring and true federalism as a panacea to the insecurity crisis raging the nation.

It also backed the communiqu issued by the Southern Governors after a meeting held in Asaba, Delta state, last month.

In a statement on the state of the nation, the factional President of the UPU, Chief Joe Omene, lamented the brutal killings and incessant abductions taking place across the six geo-political zones of the country.

Omene attributed the lack of progress in the war against insecurity to defective single-layered policing system and the unitary structure of the country.

All of these is due to lack of a basic agreement that allows all Nigerians to find reasonable accommodation with one another through genuine Constitutional reforms that would allow for and provide a widely accepted and acceptable system.

Rather than provide genuine regimes for economic opportunities for all and investments in modern agricultural and livestock production that will improve productivity and wellbeing, our political elites prey on the emotional and socio-cultural weaknesses of the different nationalities to foment religious, social and economic divisions.

It is, therefore, gratifying that some regional leaders have given these issues that are tearing the country apart deep introspection and came up with a consensus to review and reform the grundnorm guiding the governance of Nigeria; that is restructuring and a return to true federalism is the only viable path to save Nigeria.

The statement advocated for a return to the 1960 and 1963 constitutions.

Linking the administrative challenge facing the Niger Delta Development Commission (NDDC) to historical roots of Nigerias creation he said until investors subscribe to sustainable solutions where all parties, investors and host communities share a mutual win-win accord as envisioned in the 1961 Niger-Delta Development Act and abide by it, the current parody of governance playing out at the NDDC will persist with dangerous outcomes for everyone.

To stem the crisis at the NDDC from degenerating further and to prevent the Commission becoming totally irrelevant to the development aspiration of the people of the Niger-Delta, the UPU calls on the federal government return to the Act that established the agency in order for the Commission to focus on its mandate.

The UPU further expressed concern over secessionists claims and counter claims of territories in the South-south, especially Urhobo areas without consultation with the people.

The Urhobos with a demographic of over six million (6 million) people, are larger than several independent nations within and outside Africa and are quite capable of independent existence, but if they must be drawn into any federal union it should not be taken for granted that their territories are simply there for annexation by all comers.

The reasonable thing to do is to begin with a wide consultation involving all Nationalities based on agreeable terms of the agreement as recently advanced by the Yoruba Socio-Cultural group Afenifere.

The statement added that the June 12 Democracy Day celebration would be incomplete without the swift passage of the Electoral Act amendment bill.

There will always be the need for credible electoral systems to enable credible elections and referenda which are part of a functional democratic federal system.

This necessity makes it necessary to commend the courage of the current government for acknowledging and creating a permanent commemoration of the June 12 election as a milestone of credible election in Nigeria used to celebrate democracy.

But this celebration of Democracy will be incomplete without the passage and accent of the Electoral Act amendment Bill now awaiting legislative and Executive action, Omene stated.

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UPU harps on restructuring, true federalism as solution to insecurity - The Nation Newspaper

After several years of jerks and starts, the 1787 convention came to order and 55 delegates worked through the steamy Philadelphia summer to negotiate solutions for the weaknesses of the Confederation.

Horse-and-buggy government: The creation of federalism by granting specific powers to the federal government and reserving all other powers to the states worked quite well for the first decades when horse-and-buggy was the means of transportation and most business was local.

As time passed, the Supreme Court was asked to take a second look at the traditional interpretations of the commerce clause, the general welfare clause, equal protection clause, among others. So the definition of federalism has been expanded to deal with new unforeseen problems arising out of nationalization of the country.

America is nationalized: However, the American economy, society and culture have become so national that the fragmentation of a 1787 federal system no longer serves the people adequately. The structure of the government ought to facilitate, rather than delay or obstruct the prosperity and happiness of the people.

At the present time, groups have come into existence with the goal of changing the Constitution. A number of states have signed on to the proposal to have two-thirds of the state legislatures call a constitutional convention. Other folks want to junk the Electoral College for direct election of the president.

Convention suggestions: Then there are others that want to reverse the Supreme Court decision declaring corporations people for purposes of contributing to campaigns. Another group wants a convention limited to adding an amendment requiring a balanced budget at the federal level.

Support and opposition to all of these convention proposals has been bipartisan, with the John Birch Society and the Eagle Forum against and the conservative American Legislative Exchange Council in favor. States have been so divided on the proposals that they have been withdrawing their consent as fast as new supporters have appeared.

Most of the dialogue about forcing a call of various conventions is not relevant to the greater question of redesigning the national government to manifest the national complexion of our economy and society. National issues have become more important than state issues.

Federalism failed: The failure of federalism is well documented by our recent experience with the muddled management of COVID-19 at all levels of government. President Donald Trump put federalism to the test when he delegated the COVID-19 pandemic to the states.

States became enemies as they tried to outbid each other for medical supplies needed to fight COVID-19. Then the federal government got into the act and was competing with the states.

Responses to the pandemic varied radically from one state to the next. Some states closed their doors to out-of-staters. Masking rules were inconsistent, with governors fighting local governments.

Good road show: It would have made a great road show but the cast was too big.

It would be funny except some experts estimate that federalism and its implementers caused 300,000 of the COVID deaths.

A federal system spawns a lot of piecemeal policy. Because federalism requires the mobilization of a high level public support, processes are slow and cumbersome.

But just as in the days of the Articles of Confederation we are now faced with problems that are not being solved in a federal system.

It will take a national government to develop universal health care, to cope with earth warming, to respond effectively to natural disaster, to finance the infrastructure, to secure equal rights for all, and to cope with unforeseen crises.

All of these will require a greater sense of community.

Lloyd Omdahl is a former North Dakota lieutenant governor and professor at UND.

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Lloyd Omdahl: The United States has outgrown federalism - Grand Forks Herald

The system of polity introduced by the framers of our constitution is unique in its disposition and functioning. The Indian constitution, the longest written constitution, tried to assemble the best features of different constitutional systems and also attempted to weed out possible vices inherent in any particular system and ended up adhering to the middle path. The drafting committee described the constitution as federal in structure, though the scholars and actual working of the constitution have shown that the polity is unique in its formation. It is neither completely unitary nor federal in its nature.

The Indian constitution provides all features that are essential for a federal structure, i.e. supremacy of the constitution. A state derives its existence from the constitution itself, including all powers be it executive, legislative or judicial, dual government there is a central government and a government at the state level, third, distribution of power central government and state exercise their legislative and executive power assigned to them under the constitution, and the courts are the final arbiter of any disputes. However, lately, it has been seen that the Union is trying to upset the balance which is to be maintained under the constitution.

The 42nd amendment was a watershed moment in the theoretical dilution of federal structure in India whereby a large number of subjects on which the states previously had autonomy were altered. For example, entry 2A was introduced, empowering the Union to deploy armed forces in a state, which can be seen in action now when BJP MLAs in West Bengal have been given central security cover. Similarly, forests, previously an exclusive subject for states (entry 19), was transferred to the concurrent list (entry 17A), resulting in the central government passing laws on forests, thereby taking away the autonomy of the States in dealing with this natural resource.

Also read: Centres Tussle With Bengal Over Chief Secretary Reeks of Uncooperative Federalism

The recent developments have, in a way, made this structural imbalance painfully apparent. The National Education Policy, GST, Farming Laws, Centre-run schemes are some of the recent forays of the Centre into territory perhaps best kept confined to the states. Even vaccine distribution during the COVID-19 pandemic has suffered from this upset in the federal balance where the Centres inability to distribute vaccines to all the states was met with widespread criticism, and Justice D.Y. Chandrachud remarked in court that, Article 1 says that Bharat is a Union of States. When the Constitution says that, then we follow the federal rule. Then Government of India has to procure the vaccines and distribute it. Individual States are left in a lurch.

A recent example of weakening federalism is the Centres order attaching West Bengals chief secretary to the Centre with immediate effect, a development that came hours after the chief minister of the state did not attend a meeting with the PM on reviewing Cyclone Yaas.

Another example is the National Education Policy 2020 which has been criticised for excessive centralisation. Federalism requires that states and the Centre work on an equal footing to determine policies. However, the NEPs visions of a central agency to test and regulate educational institutions have taken away the powers from states. Since it was felt that states are best placed to determine the requirement of its subjects, education was made as a state subject at the outset. The centralisation of the medical entrance exam (NEET) was even been challenged by Tamil Nadu.

The consequences of such centralisation can be very destructive and demoralising for students from rural areas who are taught a state board syllabus. In the Tamil Nadu case, it is unfortunate that the 17-year-old Dalit medical-aspirant who had challenged NEET was unable to secure admission in a medical college, despite scoring 98% in her board examination and died by suicide.

The Constitution of India. Photo: Wikimedia Commons

The 102nd amendment to the Indian constitution inserted Articles 338B and 342A into the constitution. Article 338B set up a National Commission for Backward Classes and Article 342A vested the power to notify a class as a backward class. In the case of the Maratha Reservation matter, a constitution bench of the Supreme Court held that after the 102nd amendment, the states no longer had any power to determine backward classes.

Also read: Centres Flawed Vaccination Policy Will Turn States Against Each Other

Though it is true that India is not a strictly federal nation, rather it is a quasi-federal state with asymmetric federalism, where more power is concentrated in the hands of the Centre. In the constituent assembly debates, Dr Ambedkar stated that the constitution is both unitary as well as federal according to the requirement of time and circumstances. In many judgments, the Supreme Court has emphasised on the importance of pragmatic federalism, stating that pragmatic federalism is a form of federalism which incorporates the traits and attributes of sensibility and realism. Pragmatic federalism, for achieving the constitutional goals, leans on the principle of permissible practicability.

It is useful to state that pragmatic federalism has the inbuilt ability to constantly evolve to changing needs and situations. It is this dynamic nature of pragmatic federalism which makes it apt for a body polity like ours to adopt. The foremost object of the said concept is to come up with innovative solutions to problems that emerge in a federal setup of any kind, the Supreme Court observed in Government of NCT of Delhi vs. Union of India (UOI) and Ors.

Even though it may be argued that our quasi-federal structure and the emphasis on pragmatic federalism allows the Centre to take up more and more powers away from the state, it is important to analyse the effect of such action. This growing encroachment of central government is worrying as it steps on the toes of the states that are best placed to make decisions within certain spheres, being in touch with the real state of affairs and having more knowledge about their unique social, economic and cultural landscapes. The Centre is often a meddlesome outsider that is out of touch with the real picture.

Along with pragmatic federalism, what needs to be examined is the concept of maintaining the federal balance. The idea is that the power of the Centre is to be limited to subjects that concern the nation as a whole, while states are free to pursue their local interests in the way they desire. As succinctly stated by the Supreme Court Pin I.T.C. Limited vs. The Agricultural Produce Market Committee and Ors.: The fact that under the scheme of our Constitution, greater power is conferred upon the center vis-a-vis the States does not mean that States are mere appendages of the center. Within the sphere allotted to them, States are supreme. The center cannot tamper with their powers. The unchecked and ever-increasing centralisation is upsetting the federal balance upon which the well-being of our citizen rests.

Also read: The Great GST Impasse Threatens Indias Federal Structure

Therefore, it is the need of the hour for the Centre to rein in its expanding powers and leave matters such as education in the hands of the states which know best where and how the resources should be channeled.

N.R. Elango is a senior advocate and a DMK MP of Rajya Sabha andAmit Anand Tiwari is an Advocate on Record practicing in the Supreme Court of India.

Link:

By Upsetting Balance of Federalism, the Centre Is Playing a Dangerous Game - The Wire

When the Articles of Confederation proved inadequate for dealing with the critical problems left after the 1783 armistice with England, the leading colonists advocated a national meeting of colonial delegates to amend the Articles.

After several years of jerks and starts, the 1787 convention came to order and 55 delegates worked through the steamy Philadelphia summer to negotiate solutions for the weaknesses of the Confederation.

Horse-and-Buggy Government

The creation of federalism by granting specific powers to the federal government and reserving all other powers to the states worked quite well for the first decades when horse-and-buggy was the means of transportation and most business was local.

As time passed, the Supreme Court was asked to take a second look at the traditional interpretations of the commerce clause, the general welfare clause, equal protection clause, among others. So the definition of federalism has been expanded to deal with new unforeseen problems arising out of nationalization of the country.

America Is Nationalized

However, the American economy, society and culture have become so national that the fragmentation of a 1787 federal system no longer serves the people adequately. The structure of the government ought to facilitate, rather than delay or obstruct the prosperity and happiness of the people.

At the present time, groups have come into existence with the goal of changing the Constitution. A number of states have signed on to the proposal to have two-thirds of the state legislatures call a constitutional convention. Other folks want to junk the Electoral College for direct election of the president.

Convention Suggestions

Then there are others that want to reverse the Supreme Court decision declaring corporations people for purposes of contributing to campaigns. Another group wants a convention limited to adding an amendment requiring a balanced budget at the federal level.

Support and opposition to all of these convention proposals has been bipartisan with the John Birch Society and the Eagle Forum against and the conservative American Legislative Exchange Council in favor. States have been so divided on the proposals that they have been withdrawing their consent as fast as new supporters have appeared.

Most of the dialogue about forcing a call of various conventions is not relevant to the greater question of redesigning the national government to manifest the national complexion of our economy and society. National issues have become more important than state issues.

Federalism Failed

The failure of federalism is well documented by our recent experience with the muddled management of COVID-19 at all levels of government. President Donald Trump put federalism to the test when he delegated the COVID-19 pandemic to the states.

States became enemies as they tried to outbid each other for medical supplies needed to fight COVID-19. Then the federal government got into the act and was competing with the states.

Responses to the pandemic varied radically from one state to the next. Some states closed their doors to out-of-staters. Masking rules were inconsistence, with governors fighting local governments.

Good Road Show

It would have made a great road show but the cast was too big.

It would be funny except some experts estimate that federalism and its implementers caused 300,000 of the COVID deaths.

A federal system spawns a lot of piecemeal policy. Because federalism requires the mobilization of a high level public support, processes are slow and cumbersome.

But just as in the days of the Articles of Confederation we are now faced with problems that are not being solved in a federal system.

It will take a national government to develop universal health care, to cope with earth warming, to respond effectively to natural disaster, to finance the infrastructure, to secure equal rights for all, and to cope with unforeseen crises.

All of these will require a greater sense of community.

Read the original:

United States has outgrown federalism | Columnists | willistonherald.com - Williston Daily Herald

June 5 marks the first anniversary of the New Delhi ordinances that later became the controversial farm laws. The farming community agitating nationwide against these laws it says will destroy farming and food security plans to observe the day as Sampoorna Kranti Diwas, or Total Revolution Day.

The term instantly reminds one of the similar call given on the same day in 1974 by the iconic political leader Jayaprakash Narayan that had kickstarted a tumultuous movement resulting in the ouster three years later of Prime Minister Indira Gandhi.

Hectic preparations are on at the ground level in states like Punjab, Haryana and Uttar Pradesh, where hundreds of vehicles have been leaving for Delhi, where a show of strength is planned at the protest sites at the gates of the national capital.

Farmer collectives, progressive groups, trade unions and civil society organisations are also observing Sampoorna Kranti Divas across the states.

We plan to burn copies of the controversial legislations outside the homes and offices of legislators, members of parliament and ministers from the Bharatiya Janata Party along with those from its allies. Thereafter, there will be marches to the offices of the subdivisional magistrates and district magistrates for handing over memorandums to the government, said Narayan Dutt of the Inquilabi Kendra Punjab.

At places where there is negligible presence of the BJP leadership, like several small towns in Punjab, copies of the anti-people farm legislations will be consigned to the flames outside the offices of the district magistrates, he said.

He added that a large number of jathas or companies of farmers are streaming to Delhi to join the protests there.

The umbrella Samyukta Kisan Morcha appealled meanwhile to people everywhere to help make the event a success by extending their support:

From time to time, the call of SKM has been strongly supported by the citizens. On the Sampoorna Kranti Diwas, farmers, labourers and citizens are requested to take up the call against the Narendra Modi government and make it a mass movement forcing the government to repeal the farm laws.

The appeal was made on May 29, the death anniversary of former Prime Minister Chaudhary Charan Singh, who was also a towering farmers leader. The SKM stated:

The distrust of farmers in this government reminds the farmers of Chaudhary Charan Singh, who faithfully put every problem and pain of the farmers before the society and the government and ultimately resolved it. Today, the Modi government is proving to be a corporates party where it does not listen to the farmers and labourers.

Having won a moral victory through their struggle that has seen them camp at the borders of the capital for more than six months, braving bone chilling winters and several bouts of cyclonic rains, besides the police oppression coming from governments held by the BJP, the farmers believe they have successfully made this a multi-dimensional movement.

The biggest achievement of this movement has been that the ruling dispensation is being forced to pay a political cost, as was evident in the results of the recent West Bengal assembly polls where the farmers had campaigned and made the masses aware of the struggle they had undertaken, said Narayan Dutt.

Before this it was unthinkable. This movement is not just about the controversial farm laws. Through this movement people have understood the rising prices of petrol and diesel, the damages that the amendments to the labour laws would bring about, what the sale of the public sector units would spell for the country and where the continuing moves of privatization would lead to, Dutt told The Citizen.

Even beyond these issues, many have observed that the movement has brought issues of patriarchy and federalism to the centre of debates. The prominent participation of women in the protests has been a very positive sign, as the Green Revolution states are known for their patriarchal mindsets and practices.

On the issue of federalism playing out as a strong undercurrent in the movement, Jagjit Kaur of Bhawanigarh near Sangrur, who is better known as Nikki among the progressive youth activists of Punjab, has come out with a very powerful song Punjab vs Delhi Farmers Protest:

Released just a few days ago, the song expresses the anguish of Punjab at the usurping of their resources by the Centre. It talks about the Partition that was enforced on the land, where even its waters were divided. It says that Punjab has always fed the country, only to be cheated by Delhi.

Federalism has definitely been a powerful sentiment throughout this movement. The cultural artists were presented with an environment where they had to contribute their bit, singer-songwriter Nikki told The Citizen.

The other aspect has been the role reversal in terms of gender. Men who would not even pick up a glass of water at home have served at langars throughout. This is bound to result in some small change back home also, she added.

When we had arrived at the protest sites at the gates of Delhi, people used to look at us in a way that conveyed that this was not a place for women. But all this has changed over the months.

Not only have women been equal participants but their participation has been accepted and acknowledged in the rural society across the states. Their presence has definitely made a difference.

Cover Photograph Danish Pandit

Excerpt from:

Farmers Observe Unity in Federalism - The Citizen