Open Access Research Article
REINFORCING ENVIRONMENTAL AND EDUCATIONAL FEDERALISM
Published Paper
Article Details
REINFORCING
ENVIRONMENTAL AND EDUCATIONAL FEDERALISM
Authors:
1.
Swarnika Tirkey
Faculty of
Law, Pt. Ravishankar Shukla University, Raipur-492010, Chhattisgarh
Email: swarnikaa.9@gmail.com
2.
Hiten Joshi
Faculty of
Law, B.M. Law college, Jodhpur-342008, Rajasthan
Email: joshi.hiten60@gmail.com
3.
Rahul Sharma
B.A.LLB
(HONS.), LLM
Email: rsshubham.sharma6@gmail.com
Abstract
The Indian model of federalism might
be quite possibly one of the most intriguing typology with regards to the
world, described for what it's worth by a paradox, in the first place: that of
being a "centralized federalism."
Keeping the ‘federal principle’ in
mind, its normative and positive consequences of the shared role of national
and state governments in controlling environmental problems; and issues in higher
education.
The paper features the various
examples of Indian government's reaction molded by different political
variables over the long haul. It attempts to provide suggestions for
reinforcing federal India's administrative plan connecting it with
environmental problems and higher educational issues. With the aim of doing so
it thereby creates a temporal framework in the talk on Indian federalism by
illustrating two very peculiar yet noteworthy issues of present-day India.
Keywords: Union (central) government, state governments, higher
education, Constitution of India, Planning Commission, Finance Commission,
fiscal policy, environmental federalism
Introduction
Federalism is a mode of government
that combines a general government (the central or "federal"
government) with regional governments (provincial, state, cantonal,
territorial, or other sub-unit governments) in a single political system,
dividing the powers between the two.
Federalism comes from the word ‘FOEDUS’
which means a treaty, solemnly enacted, which established friendship,
peace and alliance between two states in perpetuity.[1]
D.C. Miller used this word to describe system of holy and enduring conscience
between God and man which lay at the very foundation. Similarly, Herman Finer
suggests that “A Federal state is one in which part of authority and power is
vested in local area while another is vested in central institution
deliberately constituted by association of local areas”.
K.C. Wheare describes that, in a federal
system the governmental power are divided between the government for whole
country and one for the constituent units, in such a way that each government
is legally independent within its own spheres[2].Wheare
enumerated five important principles of Federalism they are as below –
1. Dual Government – There are two or
more levels of government. Different tiers govern the same citizen but each has
its own jurisdiction in specific matter.
2. Supremacy of the constitution – The
existence and authority of each of the tier of government are constitutionally
guaranteed. The jurisdiction of each are specified in the constitution.
3. Written constitution – In order to
have a federal system of government it is essential to have a written
constitution in which every aspects required, is present and drafted.
4. Independence of Judiciary – Courts
have the power to interpret the constitution and power of different level of
the government.
5. Rigid constitution – The process of
amending the constitution should not be quick and easy. The fundamental
provision of constitution cannot be unilaterally changed by one level of
government such changes required consent of both level of government.
Political scientist, Philip Mahwood, has argued that in
culturally diverse, developing countries like India, federalism is chosen not
merely for administrative requirements but for the very survival of the nation.[3]
Federalism
is part of the basic structure of the Indian constitution which cannot be altered or destroyed through
constitutional amendments under the constituent powers of the Parliament
without undergoing judicial review by
the Supreme Court.
ENVIRONMENTAL
PROBLEMS
Environmental federalism is
considered to be the study of how transfer of payments, competencies, fiscal instruments,
and grants are located across different layers of administration and how they
add in controlling environmental problems.
Environment does not feature in the
Indian Constitution as a separate entry under the schedule demarcating
legislative rights. However, environment protection is clearly provided for in
the Indian Constitution as a directive principle of state policy and judicial
interpretation over the years has further strengthened this mandate[4].
Environmental problems are not
restricted to one place and its effects are intended to grow geographically. It
requires not just the local government but the intervention of state and
central government.
The need was of proper examination of
relevant jurisdictions for better implementation of plans. Centre to take up
plans over problems which have ‘spill-over effect’ and over different
jurisdictions boundaries. State and local government to make implementation
plans.
Since the Indian constitution came
into being there was a constant need for a decentralized approach in dealing
with the environmental problems. The 73rd and 74th amendments also paved way
for it. India's national environmental policy of 2006 brought forth principle
of decentralization that is to transfer power to state and local bodies and to
empower them of having root level jurisdiction at which the problems arise and
the legislations cannot focus upon.
Sharing of power in Indian federal
system is biased towards the centre. Environment is one such matter in which
only the parliament have the residue powers to make laws. The shared power
between centre and state with respect to environment and natural resources are
defined in states ownership of natural resources and public land along with
legislative powers under article 246 read with list 1 and 2 of schedule 7.
Article 48A was added to part 4 of
the constitution by way of 42nd amendment. It created duty for the state to
protect and improve environment and safeguard forest and wildlife of the
country.
The DPSP along with judicial
interpretation over the years have strengthened the environmental protection.
There are three main routes for environmental protection[5]:
·
By
applying a broader approach with regard to the judicial interpretations and
including within the ambit of article 21 the right to a wholesome environment.
·
By
strengthening legislations in respect of international development.
·
By
enacting laws which will directly or indirectly affect or have implications on
the natural environment example forest wildlife etc.
Therefore environment in general is a
residuary subject, land and water are the state subjects and forest and
wildlife are the concurrent subjects.
Initially wildlife and forest were
under the state list. At time of emergency they were shifted to concurrent list
by the 42nd amendment. The state's control over forests has been controlled
since the amendment and enactment of forest conservation act.
T.N. Godavaram vs. Union of India[6]
The state needs permission from
centre before diversion of forest lands for non-forest activity. This is an
example where centre’s exercises its control over the state even for minor
activities.
There is a mutual dependency between
the centre and state for effective devolution of environmental problems.
Federal government depends on state or local government for implementations and
the state government depends on the federal government for institutional and
financial aid. The institutions mainly at the central level are established to
govern matters of environment and natural resources which are an example of
centre’s dominance on the matter.
Forest
Indian forest work governed under
forest act of 1927 before independence which focused on exploitation of the
forest. Post independence forest conservation and protection act 1986 was
formed which shifted the focus on conservation and protection of Indian forest.
Compensatory afforestation is one of
the most important conditions stipulated by the Central Government at the
behest of the Supreme Court for diversion of forestland for non-forest
activities[7]. A
2004 GoI notification provided for creation of a Compensatory Afforestation
Fund and that the monies received in CAMPA (Compensatory Afforestation
management and Planning Authority) from a State or the Union Territory shall be
used only in that particular State or the Union Territory. The Supreme Court in
its judgement dated September 2005, it directed „that ordinarily expenditure
shall be incurred in the particular State or Union Territory but leaving it to
the discretion of the CAMPA to also incur expenditure in other State or Union
Territory.
Land
Land is a State subject and rights in
and over land and land tenures, land improvement are within the State’s[8]
jurisdiction and for acquisitioning and requisitioning of property, both the
parliament and legislature of states have the power to legislate and devolution
of power with respect to land improvement are with panchayats as per the 11th
schedule.
Water
Matters related to water are dealt in
both the list. The state list has entry 17 which covers water supplies irrigation
candles drainage etc. where the entry 56 of list 1 deals with inter-state river
valley accept. State body maps out the outline to conduct and guide programs on
water control and prevention[9]
whereas the central body has the supervisory role overstate bodies to ensure
coordinated action among them.
The Water (Prevention and Control of
Pollution) Act, 1974. It vests the authority in Central and State Pollution
Control Boards to establish and enforce effluent standards in mines and
processing plants. Similar to the Water Act, the Air Act, 1981 provides for the
prevention, control and abatement of air pollution.
The State boards are assigned
functions of conducting comprehensive programs of pollution control in the
state. The State boards not only lay down effluent discharge standards but are
also responsible for complete monitoring of compliance of such standards. They
may also evolve economical and reliable methods of treatment of sewage and
trade effluents.[10]
Biodiversity
The National Biodiversity Authority
grants approval to use genetic resources and the associated knowledge for
commercial utilization by foreign nationals and entities. The State
Biodiversity boards grant similar approvals to domestic entities.
The biological diversity act 2002 was
enacted in furtherance of abiding by the objectives of the Convention on
Biological Diversity 1993, to which India is a signatory. Created three tier
system which comprises of national biodiversity authority be at the top state
biodiversity board and biodiversity management committee[11].
There they are interested entrusted for protection of biological diversity and
intellectual property associated with them.
HIGHER
EDUCATION
The relationship between education
and federalism goes back to the colonial period when the Sadler Commission in
1917 made education as state subject while allowing central government
considerable coordination powers. After India became independent, the
constitution framers continued to keep education under the domain of state
governments, while vesting the Union
government with major responsibilities to ensure equity and standard in
education.
The game changer was the 42nd
amendment to the constitution in 1976 which dramatically altered the balance in
favour of the Union government.the 42nd Amendment moved education to Concurrent
list. The implication of this change was that it made education a “joint
responsibility”[12] whereby
both Union and sates became “equal partners”. The trends of centralization in
education were furthered by the passage of the National Policy of Education
(NPE) in 1986.
In 1947 education was a state
subject. In 1948 university education committee was appointed which suggested
making education a concurrent subject. The recommendations were not accepted
but entries in list one word made which gave for reaching powers to the centre.
•
Entry
63-66 dealt with the problems of higher education. The most significant of
these was entry 66 because it dealt with coordination and determination of
standards of institutions in higher education. Through this the centre got over
all power with respect to higher education. The UGC act AICTE along with other
central coordinating bodies’ derived mandate from entry 66.
•
Entry
25 of list III is with regard to technical medical education etc.
•
After
42nd amendment in 1976 education was made a concurrent subject. Union
government role in suggestion suggesting free and compulsory education on their
account of cost and significance is provided in article 45.
•
Article
46 provides for equal educational opportunities between different geographical
areas and different sections of the society.
•
Article
350A ensures safeguard of cultural interest of the minority groups it also
ensures provisions of adequate facilities to receive primary education through their
mother tongue at least.
A strong hold by the union over
educational sector was established when economic and social planning was made a
concurrent subject. It directly and indirectly had and impression of control
over the educational sectors[13].
The three ways in which union
government intervene in education are:
1. Central sector in education
Central universities and schools are
a part of this. NCERT, CBSE, UGC are under the jurisdiction of union in every
aspect.
2. Centrally sponsored sector
Union government assumes
responsibility of planning development design funding and the state government
is responsible for the implementation and execution of such universities.
Examples are promotion of
sanskrit and hindi in non hindi speaking states. Educational tours etc.
3. Centrally assisted sector
The
unions though actively interested are submerged in the state plans. Financial
responsibilities are shared among the union and the state. Examples are
enrollment of handicapped students in integrated school.
However
recently the distinctions between centrally sponsored; and centrally assisted
sectors are dimmed and they are together referred to as a centrally sponsored
schemes. Important examples of this are sarv shiksha abhiyan, mid day meal,
rashtriya madhyamik shiksha abhiyan, rashtriya uchchatar shiksha abhiyan,
scholarship schemes etc.
Initially unions aim was to establish
high quality central institutions like IITs, IIMs etc. Its aim was to establish
regulatory and funding bodies to ensure quality coordination planning and
standards. They were well funded universities and did not have the burden of
affiliated colleges; whereas the state focused on expanding access to education
rather than on maintaining the quality. Large number of state government and public
colleges were established in different states. The constitution provides for
reservation quotas to correct historical disadvantage of marginalized groups
for greater access to higher education. It also support for the low cutoff of
the scores in higher educational related exams.
With respect to the teaching staff;
teachers appointed by union have uniform norms and salary prescribed by UGC. In
state appointed teachers though have a similar pay scale but the service
conditions are regulated by the respective state governments.
Through grant in aid mechanism state
government was able to exert more pressure over private college governance
appointment fee structure etc. State public universities are influenced by the
head of private colleges. Such private colleges receive various kind of
development assistance land at concessional price tax concessions rebate etc.
State universities receive development grants from UGC and maintenance grants
from state government; whereas central universities are fully funded by UGC.
In terms of budget the relative
portions that is the share in GDP plan outlay total budget etc. talk about the
priority that union and state government have towards higher education. There
is an equal and fluctuating pattern of partnership between state and union
government in terms of spending on higher education.
On 30 July, the Union Cabinet led by
Prime Minister Narendra Modi approved the new National Education Policy (NEP)
2020[14],
paving way for nation-wide sweeping changes in school and higher education
sectors. It will replace the 34-year National Policy on Education (NPE). A
standout feature of the new policy is that it has taken the 2030 Sustainable
Development Goals into account.
Disparity in relation to the amount
spent by centre on state level higher education with respect to the massive
amount of control it has over them has been observed. Higher education has been
a subject of constant push and pull at the hands of central and state
governments. The lack of cooperation and understanding is wearing and tearing
the system of education. Changing political nature of government at the centre
and state levels are adding to the same. A clear pattern which is being shocked
out is with respect to shared responsibility which is that the union
transferring the power responsibility of developing higher education to the
states and the states are for the transferring it to the private forces
available in the market.
Conclusion
This paper has made two key cases:
one, that the intrinsic construction of the Indian polity fortifies the Union
government more than the states, and secondly, the attempts of the Centre to
politically control the local/ regional political scene effectively serves the
Indian federal administrative plan.
The assorted territorial goals have
figured out how to continually stand up for themselves, bringing about the
decentralization of government in India.
In any case, a few changes at the
institutional and political level can strengthen and nourish the roots of
federalism in India, such as
·
appropriate
usage of the institutional system of the inter- state Committee should be
guaranteed to foster political goodwill between the centre and the states on
argumentative policy approach issues.
·
the
progressive broadening of the financial limit of the states must be lawfully
ensured without lessening the centre's portion
The suggestions given by the Punchhi
Commission[15] in 2010
are significant for strengthening and reinforcing Indian federalism. Regardless
of every one of their tussles, the union government and the state government
have a shared need for survival.
[1] Oxford classical dictionary
[2] Wheare, K C. 1963. ‘Federal
Government’
[3] Philip Mawhood, “The Politics of
Survival: Federal States in the Third World”, International Political
Science Review, Vol 5(4), (1984): 521-531.
[4] K. R. Sudhamam, “Has Niti Aayog
pushed fiscal federalism forward”, Deccan Herald, June 3, 2018.
[5] Ajay Kumar Singh, “An emerging
national federalism”, in The Union and the States: A Symposium on the changing
federal dynamics in India, ed. Yamini Aiyer& Louis Tillin, Seminar, May
2019.
[6] (1997)
2 SCC 267
[7] Niranjan Sahoo, “COVID-19 and
cooperative federalism in India: So far, so good”, ORF Expert Speak, 30 April
2020
[8] Entry 18, List II, Schedule VII,
Constitution of India
[9] Section. 16 of Water Act.
[10] Section. 17 of Water Act.
[11]A.K. Singh, Union Model of Indian
Federalism. (New Delhi: CFS & Manak Publications, 2009).
[12] Mitra and Pehl, “Federalism”,
43-55.
[13] Ashutosh Varshney, “How has Indian
Federalism done,” 43-46
[14] Commission on Centre-State
relations, Report Volume 1, 2020
[15] Commission on Centre-State
relations, Report Volume 1, 2010
Article Information
REINFORCING ENVIRONMENTAL AND EDUCATIONAL FEDERALISM
Authors: Swarnika Tirkey, Hiten Joshi, Rahul Sharma
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/10/11
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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