Legal experts weigh in: SC must protect the rights of state govts

New Delhi, April 17 (IANS) The Supreme Court has commented on the nature of the Indian Union in several judgments, and plays a significant role in establishing and evolving "Indian federalism", say experts.

The Central government and the state governments - constituent units -- do not have identical powers in all matters, and there are differences in the way constituent units relate to the Central government. This generates a distinguished complexity in the functioning of Indian federalism.

The Supreme Court is required to preserve the delicate balance of governing forces -- allocated between the Central government and the constituent units. The apex court is also much needed to negate any effort by either - by Centre or states -- to penetrate the territory entrusted to the other, which is one of the fundamental characteristics of a federal state.

For example, in the ongoing litigation between Delhi government and the Centre in the Supreme Court, the former -- in connection with the control over administrative services in the capital -- has alleged that the latter has been "negating" federalism by taking away its power of transfer and posting.

Senior advocate Dushyant Dave said: "The Supreme Court is the ultimate arbiter of the Constitution of India." He added that in the conflict between the Centre and state governments, the top court must decide, so that nobody encroaches on each other's turf. "In the past, the Supreme Court has upheld federalism and it is clear that it has supported the principles of federalism," said Dave.

Some legal experts say the Constitution provides all features, which are essential for a federal structure, and a state derives its existence from the Constitution, which includes powers -- executive, legislative or judicial. The Central government and state government exercise their legislative and executive power assigned under the Constitution, and in case of any disputes surfaces, the courts are the final arbiter. However, recently, situations have arisen, where state governments have claimed that the Union of India is trying to upset the balance, under the Constitution.

Senior advocate Rakesh Dwivedi said the power of the state government is required to be protected, as it is a weaker party when compared with the Central government, which holds a major share of power. and the Centre has many ways to interfere with power of state governments. Citing the implementation of GST, he said the state's exclusive power of taxation has been reduced, and sales tax and entry or exit tax etc., are gone now.

On the aspect of various incidents occurring in a state government, Dwivedi said the courts whenever faced with the question of transferring the probe to the central agency like the CBI, should instead form a special investigation team (SIT) in the matter.

However, senior advocate Aman Lekhi said: "While affirming division of powers mandated balance and even while accepting preeminence of the Centre in some areas..(its) not usurpation of powers... treating the idea as a dynamic not rigid one as can attain the objectives of our constitutional democracy."

According to legal experts, the Constitution has not described India as a federation, rather quasi-federal -- where the distribution of powers between the Centre and the state is not equal.

Senior advocate Sanjay Hedge said the Indian Constitution is not a federal structure, where independent states came together to form a federation like the US. He cited the ongoing litigation between the Delhi government and the Centre, and also petitions in the Supreme Court against Centre's decision regarding the abrogation of Article 370. He also pointed at inter-state disputes -- river water dispute between Tamil Nadu and Karnataka, and the boundary dispute between Assam and Nagaland.

Hedge said: "The Indian Supreme Court broadly operates on principles of quasi-federalism and tries to harmonise conflicts."