What does ‘cooperative federalism’ mean? The phrase recognises and affirms that India is a federal State. There is a Central government and there are state governments. Each government has areas of legislation reserved to it. The Central government (through Parliament) cannot encroach upon the territory reserved for the state government, the state government (through the Legislature) cannot encroach upon the territory reserved for the Central government. There are also some areas where both governments may legislate. The division of legislative fields is the essence of federalism. Respecting the constitutional scheme is cooperative federalism.
Nevertheless, the Constitution of India contains exceptional provisions authorising Parliament to make a law on any unenumerated matter (Article 248); on any matter included in the State List if it is “necessary or expedient in the national interest” for a limited period (Article 249); and on any matter “while a Proclamation of Emergency is in operation” (Article 250).
Article 258(2) is an interesting provision. A law made by Parliament may confer powers and impose duties upon a state government or its officers, but the Centre shall pay the state such sum of money as may be agreed. This provision is a strong affirmation of states’ sovereignty, rights and powers.
A few examples would suffice. In Justice Puttaswamy, the Supreme Court explained the scope of Article 110 of the Constitution, and that judgment is binding on the government. The Rajya Sabha cannot amend a Money Bill or vote out the Bill; it can only make recommendations and return the Bill to the Lok Sabha, which may or may not accept the recommendations. The President cannot withhold assent to a Money Bill or return it to Parliament for reconsideration. Taking advantage of these limitations, but in brazen violation of Article 110, the government amended at least 10 non-financial laws through the Finance (No.2) Bill and thus avoided scrutiny by the Rajya Sabha or a direction by the President to reconsider.
The Right to Information Act, 2005, has been hailed universally as a seminal legislation. Section 15 of the Act authorises the state government to constitute the State Information Commission. The state government will select and appoint the State Information Commissioners. The initial term of office was five years. Hitherto, the power to prescribe the salaries, allowances and other terms and conditions of their service was vested in the state government (Section 16). Now, the power to prescribe the initial term and the salaries, allowances and other terms and conditions has been taken over by the Central government! We asked why? There was no answer.
The National Medical Commission Bill is the ultimate affront to the states. Every power of the state government to provide for and regulate medical education has been taken away leaving each state with only a two-year term as a member of the commission, once in four years! It is as good as transferring the subject of medical education from List III to List I. Yet it passed in the Council of States without a protest from the states!
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