Introduction
In the recent time, the federal relations have experienced a new paradigm of the confrontation inter se States rather than with the centre. The conflict gets reflected either in displaying disrespect to the executive authority of the one State by another or in refraining to extend the support needed for maintaining the harmony between the States. The rift between the Governments of Bihar and Maharashtra, on the matter of investigation of the death of the Sushant Singh Rajput, is a testimony of such conflicts and presents a reason to examine the States’ statuses in the constitutional scheme. The inquiry becomes relevant due to the State’s co-equal status on the matter of legislative and executive powers under the constitutional framework. The constitutional enquiry will facilitate in ironing out the differences and streamline the functioning of the States’ agencies. The work explains the idea of co-equality of States and the relevance under the Indian Constitution. Further, it also looks into possible ways to resolve the issue of conflict between the States.
Co-equal status of the States
The Constitution spells out the powers and responsibilities of both the units and the mechanism to resolve the conflict if any. Articles 245 and 246[1] read with the Seventh Schedule[2] demarcate the territorial limitations and the legislative powers of the centre and the Sates. Further, ‘Notwithstanding anything clause’ under Articles 246(1) suggests the formula of giving the overriding effect of the central law in situations of conflict with the State laws. Executive power being residual is co-extensive with the legislative power of the legislature. The centre or the States could exercise executive power on all the subject-matters on which they are empowered to enact a law. It is expected that the centre and the States shall cooperate and coordinate on the issue of administrative issues. Every government shall display the utmost respect and adhere to the directions issued within the constitutional framework. Besides the constitutional proprietary of mutual respect, Article 265, borrowed from Section 126 of the Government of India Act, 1935, empowers the centre to issue directions to the States to ensure compliance with the laws made by Parliament. Consequently, Article 365 suggests the imposition of President’s Rule for the failure to comply with the directions issued thereof. A combined reading of Articles 265 and 365 provides solutions for the States’ defiance of the directions of the centre. The Constitution comprehensively deals with hierarchical allocation of powers and remedial measures in a situation of disobedience. Additionally, it is expected that the central law shall deal with all the States uniformly unless there is sufficient justification for the disparate treatment. In State of West Bengal v. Union of India[3] the Supreme Court has aptly stated about the balance of power between the constituent units in the post-independence era by saying that, “The status of a political entity under a particular Constitution does not depend upon its history but upon the provisions of the Constitution. The pre-existing independent States may not be given any appreciable power under a Constitution, while newly formed States may enjoy larger power under another Constitution. A federal structure is mainly conceived to harmonise existing conflicting interests and to provide against future conflicts.” The structure created has made the centre strong with the autonomy to the States during ordinary times within the spheres allotted to them. The autonomy must be respected not only by the centre but by the States as well. Co-existence and cooperation is the central force behind maintaining the autonomy of the States. A subtle reading of Article 261 also presents the same narrative. It reads as “Full faith and credit shall be given throughout the territory of India to public acts, records and judicial proceedings of the Centre and every State.” The expression ‘public acts’ includes both legislative and executive acts of the Government. ‘Public record’ consists of any official book, register or record made by a public servant in the discharge of his official duties. The provision institutionalises the idea of inherent faith and trust in the functioning of the States’ government agencies. The public act must be done to further the goals set in the Constitution that includes the idea of dignity demonstrated in relation to the States inter se.
Regardless of the asymmetry in geographical boundary and the representation in the Council of States, every State enjoys jurisdiction over a set of subject-matter enlisted in List II and List III of the Seventh Constitution barring a few instances of the development of backward or tribal regions. As long as the State is exercising the power that does not cross over to the other’s jurisdiction, there is no qualm on how the government fulfils its responsibility. When a State exercises power lawfully and the other State creates hurdles in the exercise of such power, then there is a need to identify the institution and process to resolve the tussle between the States.
All States possess an equal amount of dignity and sovereign authority within the constitutional framework. All the States are admitted on an equal footing and entrusted with the same power under the Constitution. The invasion of the power or denigrating the status amongst the States inter se will severely compromise the constitutional principle of co-equality. Co-equality envisages mutual respect, cooperation, and trust amongst the states. Co-equality stands on a different footing from the laws made by a State for the extraterritorial purpose where a nexus between the object and the State is established. The recognition and respect of co-equality principles will benefit both the States and the citizens. Right of a State to get dignified treatment from other States is ingrained in the principle of federalism. This principle demands exalted and honorable treatment to all the agencies which carry sovereign characteristics of the State. A State is an abstract concept which exercises its power and function through different agencies. Any denigrating treatment to such agencies would amount to dishonor to the State. Arguably, this right of a State may be used by the citizens staying in that State against the arbitrary exercise of power by the other States.
Resolution of the conflict on co-equality
Judiciary appears to be a preferred forum to take up the issues arising between the States. If there is an encroachment of the constitutional space by one State over another State, then the Supreme Court shall entertain the suit under Article 131 of the Constitution. The question of judicial intervention becomes relevant in a situation of lack of trust or cooperation between the States on any issue. In case a State refuses to extend the cooperation to the agency of another State, the court shall have difficulty in identifying the boundaries of political issues with the legal issues. Judiciary needs to tread cautiously on the issue of political questions. There is a possibility that the mistrust might result from a situation that could not be scaled in judicially measurable standards. The decision to turn down the cooperation may arise out of political considerations.
Article 263 establishes Inter-State Council with the mandate, inter alia, to inquire into and advise on the issue of inter-State disputes and coordinate on common interest matters to some or all the States. It is an advisory and consensus-seeking forum. The Council appears to be better crafted for resolving the issue of trust and faith between the States. Highly technical procedural rules will not bound the functioning of the Council. It can create a conducive environment for dialogue to resolve the deadlock between the States. It can consider every kind of evidence, including political viewpoints, to resolve the issues.
The conflict arising from the issue of want of trust or respect needs not to be weighed on the scale of the judicial process. The representatives of the States should talk across the table within a constitutionally acceptable framework.
Conclusion
The differences between the Governments of Bihar and Maharashtra could be an awakening call for newer kinds of conflicts in the country’s federal structure. The issues on co-equality may come upon several issues such as ideology, political ideology, the disparity in economic conditions, etc. Thus, the situation arising out of the problems on the investigation of the suicide of Sushant Singh Rajput should not be shrugged off with convenience. It is incumbent to reinvigorate and strengthen the suitable institution so that similar issues can be effectively dealt with in the future without much of mudslinging in public. The Indian Constitution establishes autonomy to the States with a promise of similar benchmarking on the governments’ accountability towards the people of the country. Every constituent unit must adhere to the idea of trust and respect towards each other for the country’s congeniality and longevity.
*Associate Professor, Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology, Kharagpur. Author can be reached at uday@iitkgp.ac.in
[1] Constitution of India, Articles 245 and 246