Our Constitutional Federalism-its exceptions and limitation.

News about team Anna agitation towards bringing about Jan lokpal bill has ended for a moment albeit raising an important question of the constitutional law in our minds. Debate took place in the houses of parliament striking the root of the federal structure enshrined in our constitution. Can there be a uniform legislation enacted by the parliament, given our constitution’s federal structure, under Article 253 that provides for both the Lokpal at the centre and lokayukta in the states? This is besides how and what should constitute a Lokpal? As a student of Law, pulled by my insatiable appetite for higher learning, I tried to flip through the pages of the constitutional law with which I have been out of touch for years now.
Article 253 deals with the legislative relations between centre and states. The chapter 1 of part X1 actually begins by Article 245 which provides that parliament can make laws for the whole or any part of the territory of India and so are the legislature of the states making laws for the whole or any territory of the states, deriving the legislative powers to make laws subject wise under Article 246.
Question arose as to why under the constitutional schemes of things that the Parliament enact laws through the Lokpal and the Lokayukta Bill, 2011 under Article 253 of the constitution in one go, making states compulsory to enact Lokayukta subsequently in their states, should the parliament passed that bill, 2011, thereby undermining the legislative authority of the states? Why parliament limits itself to making laws for the constitution of the Lokpal only at the centre, leaving the domain of legislation making of Lokayukta to the states itself?
It is understandable that besides owing business of making laws, parliament has certain obligations to implement the international treaty, agreement or conventions made or signed with any other countries at any international conference, associations or body. One such international treaty is the UN Convention against Corruption, which was signed and ratified by India. Article 6 of the Convention envisages a specific obligation for member states to establish regulatory bodies that prevent corruption. In order to implement this conventions signed by our country to fight against corruption, it was incumbent upon India as a nation to frame laws. While doing so, Article 253 has an exception to the rule contained under Article 246 and gives power upon parliament to make any law for the whole or any part of territory of India. Therefore, the Lokpal and the Lokayukta Bill was brought by the government under Article 253 to implement the UN convention within this exception clause although it impinges upon matters belonging to State list for setting up Lokayuktas in the States.
Thus, the competency of the state legislature and powers to make laws in its State list is subject to parliament’s power to make any laws under Article 253. Interestingly, once the laws are framed obliging those treaties, the federalism constraints imposed by Article 245 and 246 will be removed and the total field of legislation is opened to parliament. It has a non-obstante clause like Article 375F of our Constitution and takes precedence over other Article contained in this chapter of part VI of the constitution.
Parliament’s powers to make laws for states in implementing those treaties or convention was uphold by the Supreme Court in many cases including those which were referred to by the President of India under Article 143(1) of the constitution in its advisory form. In the court’s words, “Article 253 deals with legislative powers, and thereby power is conferred upon parliament which it may not otherwise possess”. Furthermore, under the Directive Principle of State Policy, states are supposed to foster respect for international laws or treaty obligations signed by its nation.
We already have a glaring case in India apposite to Lokpal controversy. In order to implement the Paris Principles, 1991 for better protection of human rights, the parliament has enacted the laws for the constitution of Protection of Human Rights Act, 1993 under Article 253 itself which provides for constitution of National Human rights Commission at the centre and State’s Human Right Commission in the states as it would be like the Lokpal and the Lokayuktas.
Unfortunately, arguments raised in the parliament on such a crucial federalism issues were polemical and exaggerated more in tone and substance. Here, the role of Anna team is felt, nevertheless our parliament is already obliged to have laws in place to fight against corruption. Now the bill having jolted with so many ifs and buts and being stalled in the Rajya Sabha from passing it, it is assumed that it is kept under rest and recovery to be back soon, not killing it all together.



Hemant Rai,
Gaucharan, Assam Lingzey, East
(Currently BDO, Gyalshing, West Sikkim).