Opening The Floodgates To A New Realm Of Contested Federalism – Law School Policy Review

KV Kailash Ramanathan*

Supply : IPleaders

In State of Punjab vs Davinder Singh, the Supreme Court docket whereas upholding the Constitutionality of sub classification in reservation, treats Articles 15(4) and 16(4) as a standalone supply of legislative energy with out regard to the scheme of subject material distribution underneath Schedule VII. This piece analyses the ruling by means of a federalist lens and argues that the reasoning employed creates ambiguities and is sure to open the doorways to a brand new realm of centre-state battle.

I.  Introduction

By means of its current ruling in State of Punjab v. Davinder Singh (‘Davinder Singh’), the Hon’ble Supreme Court docket upheld the constitutionality of sub-classifying Scheduled Castes (‘SCs’) for granting reservations. The court docket broadly handled two constitutional points, formulated as particular questions. The primary is whether or not sub-classifying SCs would fall afoul of the equality code in Half III. This query was settled by using empirical knowledge to show that SCs are heterogeneous and their sub-classification can constitutionally have little demur when examined towards Articles 14-16. The second subject was across the competence of the State Legislature to sub-classify SCs when Article 341 confers unique energy on the President (and, in extension, the Union) to attract up an inventory of SCs with States expressly barred from tinkering with such record.

Whereas answering the second query in favour of the States’ competence, the court docket has, even when fleetingly, employed an argument that will open the floodgates to a brand new enviornment of contested federalism and standoffs between the Union and State. On this piece, the writer will clarify the argument, analyse the battle it should create between the Centre and State shifting ahead, its implications on the Schedule VII delineation of powers, and discover Article 254 as a possible resolution.

II.  Article 15(4) and 16(4) as a supply of legislative energy

A significant argument of the Supreme Court docket in EV Chinniah vs State of Andhra Pradesh (EV Chinniah) was that an act of sub-classification would quantity to tinkering with the presidential record of SCs recognized as per Article 341. The State Legislature lacks legislative competence to have interaction in such tinkering as it’s expressly barred by Article 341. In Davinder Singh, the realized Chief Justice whereas overruling EV Chinniah, makes an attention-grabbing distinction between figuring out SCs and their sub-classification. He explicates that the identification of SCs alone is handled by Article 341. Sub-classification is just not an train in identification, however moderately an apportionment of seats between teams of SCs already recognized underneath Article 341.[1]

He then states that the facility to sub-classify emanates from Articles 15(4) and 16(4).  In a catena of earlier judgements, the Supreme Court docket has recognised the above as an “Enabling Provision” which confers a discretionary energy on the state to make particular provisions.[2] Davinder Singh in overruling EV Chinniah, goes additional by treating this energy as standalone, with out regard to the interaction it should have with the scheme of subject material distribution underneath Article 246, or another provision within the structure.  This recognition of Article 15(4) as a standalone supply of legislative energy which may be exercised to additional the huge objects acknowledged therein can open a can of worms. For reference, Article 15(4) reads

“(4) Nothing on this article or in clause (2) of article 29 shall forestall the State from making any particular provision for the development of any socially and educationally backward courses of residents or for the Scheduled Castes and the Scheduled Tribes”

As reservation centric because the discourse round this text has remained, its ambit contains any particular provision for the development of the marginalised. Earlier than continuing to the crux of the issue, it’s apposite to notice that Articles 15(4), in addition to 16(4), confer parallel powers on each the Union and State governments to make provisions. This might be clear from a studying of Article 12 which defines State to incorporate each ranges, in addition to from a common studying of Half III which makes use of the phrase “Parliament” when it needs to solely cope with the Union Legislature. Article 35 additional reinforces this place by expressly denuding State Legislatures of energy to legislate on sure areas underneath Half III, with Articles 15(4) and 16(4) not being one of many prohibited areas.

III.  Room for Battle

Beneath Articles 245 and 246, there’s a clear distribution of legislative energy between the 2 ranges of State. Schedule VII attracts up topic issues underneath the three lists, together with a Concurrent Listing for which there are doctrines of interpretations that uphold the Union’s supremacy in case of battle.

The problem arises when both the Union or the State decides to train their huge legislative powers underneath Articles 15(4) or 16(4) to make legal guidelines that come into battle with current or future legal guidelines to be made by the opposite. For this law-making energy coming underneath Half III, there aren’t any doctrines arrange both constitutionally or judicially to resolve battle. The supremacy of the Union is just not laid down for legal guidelines made within the train of Articles 15(4) and 16(4).

Breaching the Schedule VII Delineation

All entries underneath Schedule VII would come with gadgets incidental or ancillary to them.[3] This implies development of backward courses throughout the realm of any of those entries may be argued as a facet that’s ancillary or incidental to such respective entries. Nonetheless, there isn’t any readability on whether or not to train legislative energy underneath Articles 15(4) and 16(4), the respective authorities should first be competent underneath Article 246 to legislate on the related subject material associated to which the development of the backward courses is sought. Articles 15(4) and 16(4) being understood as conferring standalone legislative energy, unbiased of the scheme underneath Article 246 might open a can of worms. The realized Chief Justice affords no steering on this level however merely asserts that they confer law-making powers for the development of SC/ST and different backward courses.

For example, Entry 66 of Listing I is “Coordination and dedication of requirements in establishments for greater schooling or analysis and scientific and technical establishments.” Now think about, if a State Legislature have been to purportedly set a unique customary or impose extra requirements over current ones in greater schooling for the backward/scheduled courses particularly, they might make that legislation within the train of powers underneath Article 15(4). In such a case, will the entry and all its incidental issues being underneath Listing I outcome within the State legislation being void, or will the State legislation stand legitimate as a result of it was made not within the train of legislative energy underneath Article 246 however moderately underneath Article 15(4)? The identical state of affairs can play out vice versa for gadgets in Listing II.

The Concurrent Listing holds much more room for competition. For example, Entry 15 offers with vagrancy, nomadic and migratory tribes. If the Union have been to legislate upon this entry and occupy the sphere, that may not be the final phrase on it. The State can but once more legislate underneath 15(4) to manage the affairs of nomadic and migratory tribes underneath the justification of their development. Entry 17A coping with forests is presently held by the Centre’s Forest Act. Scheduled Tribes are key stakeholders in any regulation of forests and thus the States can as soon as once more intrude by means of the Article 15(4) route. Entry 28 pertaining to Spiritual and charitable endowments is an entry that permits the State to manage temples. States undertake extremely controversial reform of spiritual establishments underneath this entry. If the Parliament have been to make a central legislation on this topic overriding the State legal guidelines, can the State nonetheless provide you with new measures to allow backward class appointments as monks in temples and so forth within the train of the huge powers underneath Article 15(4)?

The above examples are purely illustrative and never complete. Virtually each entry could be topic to the identical battle when approached by inventive and contentious lawmakers.

The door is opened huge for pugnacious governments to traverse a collision course with their Central/State counterpart. A possible battle arises from two points of Schedule VII entries. On one hand, we’ve the entries themselves, which embody their ancillary issues and are clearly assigned. However, we’ve backward class welfare related to those entries. This latter facet could be legislated upon utilizing two totally different sources of legislative energy: Article 246 and Article 15(4). This twin method to laws creates potential for battle.

Even when backward class welfare is seen as totally separate from any Schedule VII entry and solely traceable to Article 15(4), an issue nonetheless persists. On this state of affairs, each the Union and State governments would have parallel powers to legislate on the matter. Thus, no matter how we interpret the connection between backward class welfare and Schedule VII entries, the twin method to laws stays problematic.

Consequent to the foregoing evaluation, the unaddressed points that might trigger quarrels could be formulated in a two-fold method. The primary is whether or not the train of legislative energy underneath Articles 15(4) and 16(4) would nonetheless be topic to the identical constitutional distribution of powers underneath Schedule VII? Inextricably linked to the primary is the second subject of whether or not the development of backward courses related to a selected entry underneath Schedule VII is ancillary or incidental to such entry.? Two extra such questions come up when an answer is excavated for within the depths of our constitutional textual content. These are mentioned within the following part.

B. Article 254: A Potential Method Out?

The doctrines of repugnancy and occupied discipline might function a possible means out by upholding the supremacy of the Union and sanctifying the Schedule VII divisions as towards legislative energy underneath Articles 15(4) and 16(4). Article 254(1) in essence lays down that if any provision of a legislation made by the Legislature of a State is repugnant to any provision of a legislation made by Parliament which Parliament is competent to enact, or to any provision of an current legislation with respect to one of many issues enumerated within the Concurrent Listing, then, the legislation made by Parliament shall prevail and the legislation made by the Legislature of the State shall, to the extent of the repugnancy, be void.

Whereas the wording of Article 254(1) appears huge sufficient to embody any legislation made within the train of powers conferred underneath the structure, judicial interpretation appears to restrict the applying of this text to the lists underneath Schedule VII. In Prem Nath Kaul vs State of J&Okay the court docket noticed that Article 254(1) applies when there’s a battle between a State and Central legislation, particularly regarding issues within the Concurrent record. The time period “repugnancy” refers to this battle between the 2 legal guidelines.

The above place has additionally been confirmed in Hoechst Prescribed drugs Ltd vs State of Bihar and the jurisprudence on the purpose seems to have crystallised. Nonetheless, the present jurisprudence has been determined particularly in mild of Schedule VII. It stays undecided whether or not the Doctrine of Repugnancy that may uphold the Union’s supremacy in case of battle applies to legal guidelines made underneath Articles 15(4) and 16(4). 

A clarification on the next factors can be expedient. Firstly, would doctrines like Repugnancy and Occupied discipline underneath Article 254(1) nonetheless apply to legal guidelines made underneath Articles 15(4) and 16(4) in case of battle? Can Article 254(1) be interpreted textually and be made relevant to all the structure? As versatile and transformative as a structure needs to be,[4] , uncertainty and ambiguity are antithetical to the rule of legislation and undesirable in constitutional interpretation. A textual interpretation of Article 254 would resolve the entire quandary and restore the Union’s supremacy.

V.  Conclusion

The Supreme Court docket’s ruling in Davinder Singh, whereas addressing the sub-classification of Scheduled Castes, has created new constitutional ambiguities. By recognizing Articles 15(4) and 16(4) as unbiased sources of legislative energy, the court docket has inadvertently created a brand new enviornment for Centre-State conflicts. This interpretation raises vital questions concerning the interplay between these articles and the established legislative framework underneath Schedule VII.

Key points stay unresolved, together with the applicability of the Schedule VII’s energy distribution to legal guidelines made underneath Articles 15(4) and 16(4), the relevance of doctrines like Repugnancy on this context, and the potential for a broader interpretation of Article 254(1). These ambiguities might result in authorized uncertainties and political standoffs in India’s federal construction.

Immediate decision of those points is essential to take care of constitutional readability and forestall potential misuse of this ruling. Whereas constitutional flexibility is effective, ambiguity in energy distribution can undermine the rule of legislation and pressure Centre-State relations. This case underscores the necessity for cautious consideration of the broader constitutional implications when deciphering particular provisions.

[1] ¶¶ 147 and 148

[2] M. Nagaraj v. Union of India, (2006) 8 SCC 212.

[3] ¶ 61 State of Karnataka vs. State of Meghalaya, (2023) 4 SCC 416

[4] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

*Creator title: KV Kailash Ramanathan 

Creator Bio- Supervisor (Company Authorized Group) at ICICI Financial institution. 

Disclaimer: All views expressed are solely these of the writer and on no account symbolize the views of any organisation he’s related to.