The federalism question


The principle of federalism became the deal-breaker on the Lokpal issue, bringing the BJP, the Trinamool Congress and various other political parties together, vocalising that the Lokpal Bill in the current form was being used as a Trojan horse by the central government to weaken the powers of the states.

The argument was that the provision pertaining to setting up of Lokayuktas struck at the root of the federal concept enshrined in the Constitution of India. The opposition parties united on one common factor: that the constitution of the Lokayktas could not be made under Article 253 of the Constitution. The central government backtracked and provided state legislatures an option on constituting Lokayuktas as set out by Parliament.

 This entire issue raises an important question of constitutional law. Given the federal structure of our Constitution and the division of powers between the Centre and the states, can there be a uniform legislation enacted by Parliament under Article 253 that provides for both the Lokpal in the Centre and the Lokayuktas in the states?

 Article 253 appears in Chapter I of Part XI of the Constitution, which deals with legislative relations (distribution of legislative powers between the Union and the states). The Chapter begins with Article 245, which provides that Parliament may make laws for the whole or any part of the territory of India, and the legislature of a state may make laws for the whole or any part of the state. Article 246 distributes legislative power subject-wise between Parliament and state legislatures. However, Articles 247, 249, 250, 252 and 253 enact some of the exceptions to the rule contained in Article 246.

 Amongst these, Article 253 confers power upon Parliament to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body. It must be noted that Article 253 starts with a non-obstante clause, and thereby takes precedence over the rest of the Articles contained in this chapter.

 The Lokpal and the Lokayuktas Bill, 2011 was brought by the government under Article 253 to implement the UN Convention Against Corruption, which has been signed and ratified by India. Article 6 of the Convention enshrines a specific obligation for member states to establish regulatory bodies that prevent corruption. Importantly, under Article 253, in implementing any treaty or convention, the federalism constraints imposed by Articles 245 and 246 are removed and the total field of legislation is open to the Parliament.

 Therefore, the competency of the legislature of any state and exclusive power to make laws for the whole of the state with respect to any of the matters enumerated in List II of the 7th Schedule, referred to as the State List in the Constitution, itself is subject to the power of Parliament to make any law for the whole or any part of the territory of India under Article 253.

Applied in the current context, Article 253 empowers Parliament to implement the UN Convention Against Corruption and provide for setting up of Lokayuktas in the states, even though doing so may impinge upon certain subject matters (state public services – entry 41 List II) which belong to the State List in the Constitution. This proposition is supported by previous decisions of the Supreme Court of India, and various high courts in the country.

The issue was first decided in 1960 in an advisory opinion rendered by the Supreme Court as a response to a presidential reference under Article 143(1) of the Constitution (In Ref. By President of India under Article 143(1), AIR 1960 SC 845). In the words of the court: “The effect of Article 253 is that if a treaty, agreement or convention with a foreign state deals with a subject with the competence of the State Legislature, the Parliament alone has, notwithstanding Article 246(3), the power to make laws to implement the treaty, agreement or convention or any decision made at any international conference, association or other body. In terms, the Article deals with legislative power, and thereby power is conferred upon Parliament which it may not otherwise possess.”

 This position of law was confirmed and reiterated by Justice JC Shah of Supreme Court in Maganbhai v. Union of India, AIR 1960 SC 783, and recently by Justice B Sudershan Reddy in Perambaduru Murali Krishna and Others v. State of Andhra Pradesh and Others, 2005 1 PDD (CC) 231, and also by Justice AP Shah in Prof. I Elangovan v. The Government of Tamil Nadu, W.P. Nos. 35808 and 36777 of 2007.

 Also, India’s most noted constitutional jurist, HM Seervai, in his classic book Constitution Law of India, points out that Article 253 was enacted by the drafters in order to avoid the difficulties faced by Canada in implementing international conventions. He describes a Privy Council judgment (A.G. for Canada v. A.G. for Ontario, 1937 AC 326), where the Privy Council held that the power to implement a treaty did not include the power to legislate on a subject of exclusive provincial (state) legislation. He noted that, to prevent such a position arising in India, Article 253 was widely worded to enable Parliament to implement a treaty or convention even if the subject matter of the law is a subject of exclusive state legislation.

What’s more, even the US Supreme Court in Missouri v. Holland, 252 US 416 (1920) has held that the treaty power in the US Constitution (more federal in nature than the Indian Constitution) is not limited by concerns of federalism.

This position of law gets a further constitutional thrust by Article 51(c) of our Constitution (Directive Principles of State Policy) which enjoins the state to foster respect for international law and treaty obligations. There is also an earlier precedent that is apposite to the entire Lokpal controversy. The Protection of Human Rights Act, 1993 providing for the constitution of the National Human Rights Commission in the Centre and the State Human Rights Commission in the states was enacted by the Parliament under Article 253 to implement the Paris Principles, 1991 for “better protection of human rights”.

 Accordingly, a single comprehensive federal enactment dealing with the Lokpal and the Lokayuktas is constitutionally valid. Justice JS Verma, former chief justice of the Supreme Court who appeared before the Parliamentary Standing Committee on Lokpal and provided his written submission on the federalism issue, confirmed the same.

 Unfortunately, despite the length and detail, the arguments raised in both Houses of Parliament on the crucial federalism question were rather polemical and exaggerated in tone and substance. More fundamentally, the opposition to the provision of setting up of Lokayuktas in the states, is plagued by constitutional inconsistencies, and the tendentious and exaggerated way in which it was presented further undermines its reliability.

The writer is an associate attorney with an international law firm.