 Good evening to all of you. It is with extreme pleasure that I'm addressing all of you today evening. Very important day, Republic Day and I hope I'm audible, right? And a very important topic. It is also coincidental that we are talking about federalism on the day a constitution was formally adopted and accepted by the people of India. Coming to the topic of federalism, I've prepared a small slide which will be effective in communicating the points. I'll just share the, yes, so broadly talking about the aspect of federalism, we all know that federalism is like a pendulum. It will be more federal when the government is on a thin majority. And it will be more centralist when the government is in the power with a dumping majority that it does not have to look back. And therefore the shades and characteristics of federalism has evolved over a period of time from the adoption of a constitution. Right in 1950-51 itself, after the adoption of the constitution, we saw the First Amendment Act of the constitution, which was introduced in the parliament by our first Prime Minister Jawaharlal Nehru. Although various rights were guaranteed to us in the first constitution, including right to property, the effectively right to property was taken away by First Amendment because various pro-agriculture, pro-farming, pro-farmer legislations were put, were protected by way of the First Amendment itself. And because of that, the right to property was virtually taken away. And there were a lot of disputes regarding all that, even during the time of Kandit Nehru itself. Into the 60s and 70s and after Mrs. Gandhi came to power, Congress was much more powerful and we also saw a much stronger Union government at that time. We also had the first instance of emergency also during that time. There were plenty of constitutional amendments that were made, which were in the nature of taking away or usurping the powers of the state during that time. And subsequently, we went into the 90s where the governments were of thin majority. And the Prime Minister and the governments during that time had to have the support of various smaller parties and various regional parties, so to speak. And these regional parties ensured that the rights of states are given primacy and because of which federalism was in much stronger position in my opinion in 1990s. It went in that direction in 2000, 2010 during the time of UPA. And in 2014, we had the occasion of the Prime Minister Modi coming to power, again with a thumping majority and obviously because there is a very stronger government with a very strong majority, we also have a government which does not, may not give a lot of importance to the states because of which we see a more centralist approach in so far as the present quality is concerned. This I'm very much aware that I'm talking to all of you who are very much aware of the Indian polity merely because you are going to be the civil servants of tomorrow, torch wearers of rights of tomorrow. And it is only my endeavour to give a bird's eye view of various shades of how federalism has evolved in the last seven years from the perspective of a lawyer because many of these matters have come to courts and many of these matters have been given different shades and different interpretations by the Supreme Court and sometimes by the high courts in the country. And in that endeavour, I'll be discussing about some case laws. I'll be discussing about the case laws mostly from 2014-2022 perspective because all the important case law with respect to federalism, you may have already covered like Isar Bumai and state of West Bengal versus UN of India, etc., which are very landmark cases on federalism which have established how federalism in fact gives the broad edifice to the constitutional structure of the country. So the first case which the country saw right after Modi came to power was, as we all know, the NJAC case which was Supreme Court Advocate on Records Association versus Union of India. This was 2015 judgment. The 99th constitutional amendment was passed by the parliament and which was right after the NDA1 came to power and soon after that it was challenged before the court. It was challenged before the court on various grounds mostly with respect to the question of independence of judiciary. The composition of NJAC is not essentially relevant for present discussion. I'm sure you may all have looked into the composition of NJAC. It was argued by Fahli Najiman during the course of hearing that it is only the law minister which is the member of the National Judicial Appointments Committee and other members being the Chief Justice and other senior judges and two eminent persons etc., etc. But it is only the law minister who is the member and he is from the central government and because of which states did not have any say with respect to the appointment of judges and this was for the case of appointment of High Court judges also. So presently in the present Collegium system once the High Court Collegium which is comprising of three senior judges of the High Court once they formulate or tabulate the number of judges that they are seeking to introduce into the High Court. The list will be given to the executive also, state executive also and it is only after the state executives concurrence that it is then taken up and ultimately it will have to be approved by the Supreme Court Collegium and then by the central government and warrant of appointment will be notified. So in the NJAC system the state was given no importance that there was no participation of states and because of which federalism was introduced as an argument but because it was not pressed for reasons unknown the court also did not give a detailed finding or discussion on this particular aspect. It is my endeavor to say that federalism was made an argument although in passing in the first major case after Modi came to power and that is NJAC. The second important case that I would like to discuss in this aspect is Harish Chandra Rawat versus Union of India. This is not a judgment of the Supreme Court this is the judgment of Uttarakhand High Court that I am discussing. It went to the Supreme Court but the Supreme Court gave only an interim order and the matter is still pending before the court and because of which I am not using the judgment of Supreme Court because it does not come. Harish Chandra Rawat was the Chief Minister, Harish Rawat was the Chief Minister Uttarakhand 2012 election and by 2016 what had happened was that many Congress MLAs crossed the floor and defection was very evident. Applications were filed with the speaker under the paragraph 2 of the tension rule saying that defection had happened and that they should be disqualified. While all these things were happening Harish Chandra Rawat was perhaps trying to salvage the government and a video surfaced where Harish Rawat was talking to various MLAs and perpetually trying to offer money so that the government can be saved and this video was used by the governor and a report was sent by the governor to the president then Pranab Mukherjee who on the aid and advice of the council of the ministers introduced, proclaimed under Article 3 of the constitution of president's rule and it was challenged rightly by the chief minister then Harish Chandra Rawat before the Uttarakhand High Court. Various arguments were made including that the relevant material for proclaiming president's rule under Article 356 was missing and various other arguments were also made because this disqualification petition were pending and the timing of president's rule was alleged to be malified. The matter went on for quite some time and justice came Joseph the Chief Justice at that time along with Justice Bist quashed the president's rule by the sitting as the chief justice and the puny judge of the Uttarakhand High Court and it was held that president acted without adequate material so the importance of adequate material was brought for the first time by the Supreme Court in Esarbhumi judgment where it was said that there should be adequate material and the opinion of the president to introduce the president's rule under 356 should be well thought out and recent and there should be due application of mind so all these components are very essential for the purposes of Proclamation of Article 356 and it was found by the Uttarakhand High Court that this was not there. Subsequently the matter was taken up by the Union of India to the Supreme Court it was mentioned by the then Attorney General Mukul Dorothe and the court at that time issued notice and the Supreme Court at that time gave an interim order saying that whatever be so what is extremely important is floor test and there was a direction for a floor test Harish Chandra Rawat won the floor test and the government continued because the questions in those in that matter was still relevant the court thought it fit to keep the matter pending so that they'll adjudicate on the merits later and it was because of that reason that this matter is still pending. This was the case of introduction of in Proclamation under Article 356 and this is 2016. Again during that time during the initial two three years of NDA 1 there were many such instances where smaller states and the governments of smaller states and the states where the government were of governments were of thin majority there were a lot of trouble. Such a trouble occurred in Arunachal Pradesh Assembly and in Arunachal Pradesh what had happened was that again few members who belonged to the Congress there was an allegation of defection and the five and the matter went to the Supreme Court and Supreme Court who was sitting in the combination of five judges because the court thought that the question which is involved herein was important for it to be decided by the Constitution Bench. So the five judge Constitution Bench of the Supreme Court held that the governor advanced the assembly session from January from I missed the date here from January to December 16 and the advancement was to remove the speaker at that time. The governor wanted to remove the there was a factual situation where there was an allegation that the governor and the ruling party wanted to remove the speaker at that time and because of that they advanced the session from January to December 2015 so that it could be done. The question arose as to whether the government can without the aid and advice of the government do that do what do the act of preponing a assembly session. So this was the question and when this question was raised before the Supreme Court the court referred it to a larger bench which is five judge Constitution Bench and the court held in Nabam Rebia who was the speaker at that time that the governor's decision to advance the assembly session was unconstitutional. So the most important ratio of this judgment was that governor can act only according to the aid and advice of the council of ministers. Governor indeed has discretion under section article 163 but the discretionary power of governor is very limited and the discretionary power of the governor is only during certain circumstances when the government of the day has no confidence and such aspects were pointed out in this Constitution Bench of Nabam Rebia versus Deputy Speaker at Nachal Pradesh and this is also a landmark judgment and so far as federalism is concerned because governor's power was interpreted and given a clarity by the honorable Supreme Court five judge Constitution Bench in 2016 and in all the matters where the governor's powers are discussed Nabam Rebia is ostensibly cited. So in this matter it was held that the governor's discretion did not extend to the powers conferred under article 174 and hence he could not summon the house determine its legislative agenda or address the legislative assembly without consulting the chief minister or the speaker. So this is very important these are this is the extract of the the court of the judgment assembly and the governor could not summon the house determine its legislative agenda or address the legislative assembly without consulting the chief minister or speaker. The functions duties and powers of the governor by or under the constitution are cabined, cribbed, confined. So three C's here basically it's it's very picturesque in a sense that they have given three C's here to to to to give an impression that it is limited it is only limited and within four boxes within four corners of a box. So when the chief minister has lost the support of the house and his strength is debatable, then the governor need not wait for the advice of the council of ministers to hold a floor test. So this was also held by the Supreme Court in Nabam Rebia. This was cited in various instances soon after that we had the rebellion in the Rajasthan government where we saw such in pilot along with few other MLAs raising various allegations against the chief minister saying that the chief minister does not have confidence and the matter went to the court there was a disqualification petition against the MLAs who were supposedly supporting such in pilot and when the matters were pending again there was the question as to whether the governor Rajasthan governor could refuse to summon a session between them the chief minister of the day Ashok Gelott in fact wanted the assembly session to be held at a particular time rather the governor was postponing it the question was whether the governor could do so and the Rajasthan high court when the matter was heard in an interim order said that the governor is bound by Nabam Rebia case and that he should act in aid and in aid and advice of the council of ministers and if the assembly session was to be held at a particular date it had to be held at a particular date by the by the this dictate of the governor. So again there was interference by the governor in Maharashtra where the new government was sworn in and again in Karnataka and in all these matters floor test was stated to be the best remedy and the earlier the floor test earlier the justice insofar as the forming of government is concerned. The next case that I would like to discuss is the with respect with the Maratha case Jayasri Lakshman Rao Party versus Union of India. In this case the question was essentially with respect to the correctness of and the constitutional validity to your article 342A and also with respect to the with respect to the the new law form made by the Maharashtra assembly where there was reservation for Maratha community. It was challenged before the Bombay High Court. Bombay High Court upheld the law where Marathas were given reservation. There was appeal on that judgment before the honorable supreme court and supreme court in this judgment which is again a five-judge bench of the honorable supreme court held that the extent of reservation and the kind of benefits the quantum of scholarships the number of schools all these things can be decided by the state determination of a class may be given as a power to the central government but all the other aspects that arise out of it like extent of reservation benefits that are to be given quantum of scholarship so once class is identified by the central government then all the attendant benefits or incidental aspects could be looked into by the state government and that could not be a violation of federalism that was the essence of what the supreme court judgment actually said. I'll just read this out the extent of reservation the kind of benefits quantum of scholarships number of schools which are to be specially provided under article 15 sub clause 4 or any other beneficial or welfare scheme which is conceivable under article 15 4 can all be achieved by the state through its legislative and executive powers. This power would include making suggestions and collecting data. Collecting data is given importance after Nagra judgment if necessary through statutory commissions for making recommendations towards inclusion or exclusion of castes and the communities to the president on the aid and advice of the union council of ministers under article 342A but the importance of this judgment is again arguable because of the reason that the 102nd constitutional amendment was partly taken away by way of a subsequent amendment which was introduced in the parliament in the month of August last year 2021. It was there was again an argument saying that this is against the federal principle as the state's power to determine class is taken away. So the court just was the judgment by Justice Ravindra Bhatt. Justice Ravindra Bhatt was speaking for Justice Nagesh Rao as well as Hemant Gupta but Ashok Bhushan did not deal with the aspect of the state's federalism but Ravindra Bhatt who dealt with the issue was of the opinion that by these parameters alteration of the content of the state legislative power in an oblique and peripheral manner would not constitute a violation of the concept of federalism. So merely because the power to determine class is taken by the center but all the other aspects are still with the state that in itself is not a violation of federalism. It is only if the amendment takes away the very essence of federalism or effectively divests the federal content of the constitution and denotes the states of their effective power to legislate or frame with the executive policies that the amendment would take away an essential feature or violate the basic structure of constitution. This is how the Supreme Court saved Article 342a in the Maratha judgment and this again is I was mentioning in passing because anyway the importance has been reduced after the subsequent constitutional amendment. The next case that I would like to discuss is the Kesham Mekha Chandra Singh versus the honorable speaker, Manipur Legislative Assembly case. So 10-shillule is something which is very contentious. Every time a government is put in power or that is a crossing over, 10-shillule is invoked. There are disqualification petitions and most likely it is to save the government of the day and in some occasions the some MLAs from the governing ruling dispensation would cross over to the opposition also. But in cases where the opposition MLAs come to the side of the ruling dispensation, it is in the interest of the governing party that disqualification petitions are kept pending or not acted upon. So what happened in Manipur was that one MLA had crossed over from Congress and joined the NDA government and in fact the MLA who won from Congress ticket was made minister in the Manipur cabinet. There was a disqualification petition pending against him but the speaker did not act on it for years together. So the question arose as to why the speaker is not acting on that disqualification petition because while considering the disqualification petition the speaker only has to see whether he has crossed over from the party that he has been sent from and whether he is acting against the whip of that party and if that is proved then disqualification petition will have to be allowed and he will have to be disqualified. But this minister was serving in the ruling government and the speaker was not acting because it was in the interest of the ruling government that disqualification petitioners kept pending. So the Supreme Court in this matter held that such disqualification petitions will have to be decided mandatorily within three months period. So it cannot go beyond that. In this particular case in Kesham Meghachandra case, this is not 2020, I'm sorry this is sorry this is 2020 itself. So there was the judgment of the honorable Supreme Court came in the month of January if I'm not wrong. So and in the judgment it was given a direction that the speaker act on it within 30 days. The speaker still did not act on it within 30 days after the Supreme Court intervened and said and gave that direction and the issue was again brought before the Supreme Court. The court in this was one of the last working days of Supreme Court before it shut down following COVID lockdown. So on March 18, 2020, if I'm not wrong, what the Supreme Court did was that the court invoked its powers under article 142 and held that the minister is disqualified. The court invoked that power to hold that minister is disqualified. So the power of the speaker was virtually taken by the Supreme Court to hold that the person is disqualified. In the judgment Justice Roindan Ranariman refers to Justice J S Verma's dissent in Kyoto, Holohan. You all know that Kyoto, Holohan is the judgment where the tension is elaborately discussed because the challenge was against the tension. So the aspect where disqualification petitions are decided by the speaker itself was doubted by Justice J S Verma in the dissent and he was of the opinion that speaker being from the ruling dispensation itself may act in favor of the ruling government and in such matters speaker may not be independent. And to ensure that there is an independent decision-making process with respect to disqualification petition, he suggested that a retired judge be appointed as a tribunal to be deciding that issue. But anyway, the Supreme Court in this case in Kesham Mekha Chandra, in fact, gives a recommendation, gives a suggestion to the parliament that ten schedule has to be looked into with respect to disqualification because it does not serve any purpose. The next case, this is the extract regarding that Justice Roindan Ranariman's opinion. It is time that parliament have a rethink on whether disqualification petition ought to be interested to a speaker as a quasi-judicial authority when such speaker continues to belong to a particular political party either de jure or de facto. Parliament may seriously consider amending the constitution to substitute the speaker of the Lok Sabha and Assemblies as arbiter of disputes concerning disqualification which arise under tension. With a permanent tribunal headed by a retired Supreme Court judge or a retired Chief Justice of the High Court or some other outside the independent mechanism to ensure that such disputes are decided both swiftly and impartially, thus giving real teeth to the provisions contained in the ten schedule. Even I am of the personal opinion that ten schedule should be looked into again because if it's not serving any purpose, there was this recent article by Sri Kapil Sibal on the Indian Express where we discussed this aspect as to how ten schedule is becoming redundant. He was saying that in 2002 there was a proposal to save the bunch of MLA's who crossover. If it is two-third, it will at least be of some benefit because the present case where it is only one-third essentially does not give any impact because what happens is that to cobble up one-third of the one parliamentary group is very simple especially when you come to a particular state and when the states are small. So we saw that recently in Meghalaya and also in Meghalaya where many Congress MLA's went to TMC and TMC became one of the major opposition parties there without any disqualification proceedings against them. The next issue is very contentious in many states including the state of Tamil Nadu is with respect to NEET. So NEET I am not discussing too many case laws in that aspect because NEET it has seen a series of judgments and interferences from the Supreme Court. In fact, the question with respect to NEET which came in the form of a notification was challenged and Supreme Court struck it down. After the Supreme Court struck it down in 2013 the matter was again taken up as the review petition was filed before the honorable Supreme Court. Review petition was referred to a constitution bench. The constitution bench in 2016 held that there is some substance in the review petitioner saying that NEET should be brought back. So the review petitions were allowed and subsequent to that the NEET was sort of resurrected and there were plenty of other incidental issues which are considered by the Supreme Court from time and again. Recently there was this case where 27% OBC reservation was also upheld by NEET and that again that was in an interim order. There are other important judgments with respect to NEET but question of NEET is essentially important in the perspective of federalism because this is a case where higher education and which is essentially in the domain of state is taken up and absorbed by the central government and there is a common examination on that. So states have started protesting against it. Tamil Nadu is the biggest example. I recently read the news that the Chief Minister is trying to talk to other parties across the country to have a public opinion against NEET because how far can there be a central dispensation going to the aspect of who should be and what should be the qualification etc. for admission to the medical colleges are concerned. So these are all matters which are of larger import. It's still in discussion and it's still debated in the public and in that perspective NEET is an ongoing topic and according to me it is going to be one of the most contentious issues in so far as federalism is concerned. The other judgment is the judgment of Union of India versus Rajendra Shah again 2021 by Justice Rohinton Nariman. This was three judgments. The judgment of Rohinton Nariman was concurred in great detail by Justice K.M. Joseph but the K.M. Joseph also sort of gave a dissent in one aspect. So I'll discuss about this case. 97th constitutional amendment which introduced part 9B because of constitution dealt with issues relating to effective management of cooperative societies in the country as we all know cooperative societies in the state list and the parliament in 2011 passed the constitutional amendment without taking the opinion or without even a discussion or consultation with the state governments. In fact although the cooperative society and the amendments brought forward was broadly agreed by the states later on before the amendment was passed there was nothing of that sort. There was no discussion with the states. So in this judgment by the Supreme Court three judgments 2021 it was held that if parliament is taking up the field of legislation of the states obviously there shall be ratification from half of the states because that is the mandatory that's something which is mandatory as per article 368 of the constitution. If the parliament is taking up the field of legislation of the states there should be ratification from half the states and in this case there was no ratification from half the state was not even introduced. So the Supreme Court held on this technical ground in fact this is very important simply because there is no ratification by the state the amendment is bad and then according to me it is a great judgment everybody should try and read this judgment to understand how federalism and the larger domain of amendments are again discussed after Kesha Vananda. So there are certain criteria given for the introducing constitutional amendments and even if one technical aspect is not met and even if there is no serious objection by any of the state that there should be ratification. So Supreme Court can still go ahead and strike it down saying that this is one criteria and it has not been met. So the fact that there was no ratification by half the states was held against the government this is a UPA era constitutional amendment and the NDA supported it and it was struck down last year and the Supreme Court unanimously held that 97th constitutional amendment required ratification since it dealt with an entry which was exclusive state subject. The union government cannot use its powers to make laws or control the cooperative societies of the states however this is where there is a dissent with respect to the judgment with respect to so insofar as multi-state cooperative societies are concerned the central government can legislate and constitutional amendment is valid insofar as multi-state cooperative society is concerned but insofar as other states are concerned it is invalid so that's the majority opinion this is concurred but Justice Rownton Ariman was of the opinion that with respect to multi-state cooperative society it is valid but came Joseph held that it is valid invalid even for multi-state cooperative society because at itself was still born so once the amendment is passed without the requisite criteria so then the amendment itself is bad so the Justice came Joseph was of the opinion that you cannot hold a particular law as valid insofar as one area is concerned and invalid insofar as other area is concerned so Justice Rownton was of the opinion that with respect to multi-state cooperative society it is valid but came Joseph was of the opinion that even with respect to multi-state cooperative societies part 9v is completely inapplicable so this was the judgment and in my opinion this is a very well written judgment that everybody should try and read to understand the broader concepts of how amendment should be made and also as to how federalism should be understood in the perspective of how the state government and central government taking over each of their domains are concerned. The next judgment is one of the seminal ones insofar as federalism is concerned because the Supreme Court evolved a new concept called collaborative federalism in the Delhi government versus UNF India case obviously there has been a lot of dispute between who would control what subject in in the state of Delhi in this case the Supreme Court was it was very categorical when it said that with respect to land police and public order it is the central government and with respect to everything else it is the state government so this is the criteria this is something which was there initially and Supreme Court sort of buttressed this in no unclear terms so the Supreme Court in this matter again a constitution bench so it was headed by the Chief Justice Deepak Mishra so Deepak Mishra was of the opinion that the era of cooperative federalism has gone and we are now entering into an era of collaborative federalism and Delhi is a classic example of collaborative federalism because two governments are collaborating for the welfare of Delhi so for land police and public order the central government and for the other aspects state government and such a distinct political system is there in Delhi because of the unique nature that Delhi is also the national capital territory of the country so this was the judgment it was also held that LG is only an administrative head with only a limited power LG is not a governor in the strict sense and he is also bound by the aid and advice of the NCT government in areas other than land police and public order so in all other areas if the state government is suggesting something the LG mandatorily will have to follow that here there is a quote by Justice Chandra Choud held that the real authority to take decisions lie with the elected government and that the particular head has to act as per the aid and advice of the elected government so the will of the people cannot be cannot be toppled in a sense by going over it in the form of very technical aspects so this was the judgment in Delhi government versus union of India I'll because the aspect of collaborative federalism is very important I'll just have extracted this quote from the judgment so here it says constitutional assembly while devising federal character of our constitution could have never envisaged that union of India union government and the state government could work in tangent it could never have the never have been the constituent assembly's intention that under the garb of quasi federal tone of our constitution union government would affect the interests of the states similarly states under our constitutional scheme were not carved as separate islands for having a distinct vision which would unnecessarily open the doors for a contrarian principle or gradually put up put a step to invite anarchism rather the vision enshrined in the preamble of our constitution that is to achieve the golden goals of justice liberty equality and fraternity beckons both the union government and the state government alike the ultimate aim is to have a holistic structure the aforesaid idea in turn calls for coordination amongst the union and the state governments and the union and the states need to embrace a collaborative cooperative federal architecture for achieving this coordination this is the quote from that judgment which I think is relevant there was another case which was coming from Pondicherry so here a few MLA's where were nominated by the central government to the Pondicherry assembly so there were a lot of agitation saying that how can MLA's be directly nominated by the central government although Pondicherry is in a sense a government like that of Delhi although having limited and lesser powers so it was held that the nomination in the legislative assembly of Puducherry is not the business of the government of Pondicherry and that it is the business of the central government as per section three sub clause three of the 1963 government of India transaction of business rules so it was also held that article 239 a of constitution gave the power to the parliament to enact a lot to constitute legislative council for Puducherry and for under this act of government of UT act 1963 and section three sub clause three it empowers and central government to nominate not more than three members so the there was this tradition that the central government would take the concurrence of the local government to nominate the members but in this case central government did not take the nomin the concurrence or suggestion of the local government and they went ahead and appointed the MLA's so nominated the MLA so to speak so in this case it was said that taking the opinion of the local government is only a tradition and that it is not mandated by any law and on that aspect the central of the Supreme Court upheld the nomination by the central government of three MLA's in this case so in this matter also the the aspect of cooperative federalism is discussed because again this is a unique situation coming from Pondicherry because Pondicherry and Delhi are essentially articles 239 a 239 AA presents a very peculiar situation and they it these are all examples which are generally staying away from other other states some this is I'm moving towards some of the last cases in this session and this is Ajit Mohan versus Delhi assembly after the Delhi riots the Delhi assembly had set up a peace and harmony committee so it was the prime of AC finding of the peace and harmony committee of the Delhi assembly that facebook was used and perhaps manipulated by the by certain miscreants to to spread riot and you know to perpetrate such crimes what happened was that the the Delhi peace and harmony committee they issued a notice a short-cost notice to Ajit Mohan who was the who is the managing director of Facebook India and Ajit Mohan challenged that short-cost notice before the Supreme Court under article 32 saying that his fundamental right is violated because such a matter could not have been taken at the instance of the Delhi assembly so it was the argument of Mr Ajit Mohan that essentially Facebook will be governed under IT Act and IT Act as a central legislation it comes under the central list and otherwise also law and order in Delhi is under the central government so how can the state assembly take such a action and state assembly give such a notice was essentially the question larger questions of federalism was again involved in this case which was harping on the issue of Delhi was a center dispute it was held by the bench which was headed by Justice Sanjay Kishan called that the need to go into this incident both from a legal and social perspective cannot be belittled so this is the reason that Supreme Court is trying to give to uphold the short-cost notice given by the state assembly the capital of the country can ill afford any repetition of the occurrence of such occurrence that is the riot in this case and thus the role of Facebook in this context must be looked into by the powers that may be it is in the background in this background that the assembly sought to constitute a peace and harmony committee whether it has the legislative competence or not is an aspect we will deal with it under the relevant head the assembly being a local legislative and governing body it cannot be said that their concerns were misconceived or illegitimate it is not only their concern but also their duty to ensure that peace and harmony prevails however we may note that long and repeated battles between the state and center appear to have a caste appear to have cast a shadow even over the well-meaning intent of the committee to assess peace and harmony as reflected in terms of reference so in this case it is very interesting to note that the central government is again I'm sorry the supreme court is again taking the example of the dispute between Delhi and center to say that what your dispute is causing trouble for the normal people and if the assembly is taking such a stand then why can't central government support it that was essence that was the mood of the supreme court so so in fact the court you know in my opinion schools state as well as the center because they are constantly bickering so in paragraph 161 the the honorable court says speaking through justice call to work well cons the central government and the state government have to walk hand in hand or at least walk side by side for better governance the failure to do so is really a breach of their respective electoral mandate the seven Lok Sabha seats are all held by powers that be in the central government and when when it came to assembly election it was the other it was a different party this has been a repeat and it is the reflection of maturity of the electorate which has chosen to put one dispensation and power in center while seeking to choose another state is another in the state is roles are as roles are divergent the concerns are different the two powers unfortunately do not seek to recognize this aspect and that is the bane of this structure requiring collaboration and concurrence so the court supreme court is again saying that you should have larger collaboration in the interest of people unfortunately it has become an endeavor to score points over the other some prior discussion and the understanding could easily solve solve this problem instead of wasting large amounts of judicial time in fact current round is in our view arising from the petitioners seeking to take advantage of this divergence of the view and their inability to see a common path so in this case Facebook was in was was on the same boat as that of the central government because central government was saying that state could not have issued such notice it was also the case of Facebook that state could not have issued that notice but ultimately the court held that anyway somebody will have to see some mischief has been done in Delhi right at the maybe at the instant of Facebook or because of the inaction on the part of Facebook so here is where the legislative competence of was was considered so the assembly admittedly does not have any power to legislate on the aspects of law and order and police in view of entry is one and two of list two in the seven scheduled in Trillia being excluded so entry two of list two is police and that is excluded in so far as Delhi is concerned and further even with respect to IT activists under the central so assembly does not perform the function of legislating there are many other aspects of governance which can form part of the essential functions of the legislative assembly and consequently the committee in the larger context the concept of peace and harmony goes much beyond law and order and police more so in in view of the on-ground governance being in the hands of Delhi government so this was the explanation given by the Supreme Court to uphold the notice issued by the Delhi government issued by the peace and harmony committee of the Delhi assembly so I'll just refer to this only in passing because this was not a major judgment or anything this was in the case with respect to distribution of vaccines and distribution of oxygen during the peak of second wave so the court the Supreme Court speaking through Justice Chandrachu in fact referred to section 35 and 36 which relates to the power of central government to say that central government during the times of disasters should take greater power to ensure that states are also given their due share so it was during that controversy where the central government had prescribed prices for vaccines that states will have to purchase so and then there was interference by the Supreme Court saying that states can't be forced to purchase for a price etc etc ultimately the decision was rolled back by the central government so this was in that context and the the judgment uses section 35 and 36 of the disaster management act to say that central government having powers does not mean that states should not be given their due share central government should take the powers to ensure that everything is distributed between the states equally for the welfare of people so this was the larger concept which was discussed very briefly I'll be in the in in this order and this was in in rare distribution of essential supplies and services during pandemics so this was this order came sometime towards the end of April 30th April of 2021 second wave when that that sort of a situation is very important for trying to understand what the decision of the court is in this case so many questions were asked to the central government in this order it it's it's not prescribing any law it is this judgment this order is not in the nature of laying down a law but questions were asked and questions were asked with respect to the powers of the central government stating that there are duties larger duties to the states this is the biggest question with respect to the money bill we all know adad act was introduced in the parliament as a money bill it was passed in the Lok Sabha it was challenged in the supreme court five judge bench of the supreme court upheld the adad act saying that without in fact not going too much into detail as to why it was introduced as a money bill although it did not conform to any of the prescriptions of article 110 adad act did not discuss it but the dissent of justice chandrachut is very important because in the dissent of justice chandrachut the whole adar structure has been struck down by this by by justice chandrachut in his dissent although that is not applicable but his dissent is important because it was struck down and while striking down he said that none of the criteria have been met and because of which the adar scheme and act itself fails this dissent of justice chandrachut was referred again in in a subsequent judgment of again the constitution bench of supreme court in 2018 which is called the roger matthew versus state bank south indian bank so the cost title is not mentioned here i'm sorry it is roger matthew versus south indian bank so the judgment is by three authors one chief justice ranjan gogoy then mr honorable justice gupta and then by justice chandrachut so justice gogoy who was speaking for the majority in fact referred to justice chandrachut's dissent in adar case and he was under the opinion that this case roger matthew case was concerning finance act of 2017 which prescribed various conditions for appointment and mother service conditions of tribunals and tribunals judges so again that was a finance act finance act had given had had provisions relating to tribunals and tribunals judges etc etc completely unrelated supreme court was of the opinion that this could not have come in a finance act and justice gogoy in this case said that criteria under article 110 have not been met and the question with respect to whether such laws can be passed as money bill was referred to an even larger bench because roger matthew was five judge and adar was also five judge and the big since the composition of judges were the same the court had to refer it to a larger bench for a authoritative pronouncement as to whether such aspects could be legislated in the form of money so again justice chandrachut's opinion in adar the dissent in adar was referred to justice chandrachut again part of this bench in roger matthew where he discussed again in detail as to how rajasabha cannot be bypassed because rajasabha which is essentially the house of states hold a lot of importance in so far as bringing forth the opinion of states are concerned and bicameralism is a very important aspect of federalism and bypassing bicameralism is something which is against the basic tenets of democracy and this is one very important aspect and this was again referred to larger bench in roger matthew you may refer to roger matthew in this particular context and the opinion of justice chandrachut in roger matthew and just in roger matthew is very important in the light that money bill aspect has been considered in detail and the larger question of federalism on the on rajasabha being bypassed was also discussed important judgment in that respect i will stop here with important supreme court judgment this was one important judgment in the state of kerala in the high court of kerala gold smuggling case was in the news every day for the most part of last year various cases were filed and various investigating agencies were involved in the state because the aspect was gold smuggling and customs had registered a case once the customs registered a case regarding gold smuggling it was another twist was given saying that customs and bypassing and smuggling of gold which is essentially against the fundamental terms of economy if that is done then it is also economic terrorism and because of that nia registered a case under uap alongside there were other cases under prevention of money laundering act also so there was a lot of tussle between central government and the state government and in this case what happened was that state government alleged state government alleged that central government officials in fact enforcement directorate officials encroached upon the powers of state government and influenced various witnesses this is a very important allegation extremely serious the state was saying that enforcement directorate officials influenced witnesses to testify against important members so what happened was that the crime branch of the state police registered a case and the case was registered in trailia under article and the section 193 IPC which was relating to offense relating to false evidence many other provisions were there but for section 193 IPC was very important so again the question of federalism was raised as to how in fact once the FIR was registered by the crime branch state police enforcement directorate challenged that FIR before the kerala high court and kerala high court did not go too much into the aspect of federalism but what was of the opinion although it was argued the the solicitor general came to the kerala high court and argued that this is completely against the all the federal all the important principles of cooperative federalism that state government cannot register FIR against central government officials when they are also investigating officers in important cases so and because section 193 IPC was involved the FIR was ab initio void because of the protection given to the central government officials under section 195 one sub clause BCRPC so the high court held that it could not have been done the registration of FIR at the behest of the state police could not have been done for the reasons that under CRPC itself it is wrong they did not go too much into the aspect of federalism although it was argued this is again important in the context that various investigating agencies are at locks with with with each other CBI versus state police in West Bengal and NIA versus state police and customs versus state police in Kerala in Maharashtra also there was the instance where when Sushant Rajput case was was registered in Mumbai police some other FIRs were registered in Bihar and other NDA ruling in states and there the case was referred to was given to CBI and then CBI started taking over the case in Mumbai police de facto so such aspects have been very widely happening across the country and investigating agencies are versus state police etc is a big question of federal conflict which is still not been addressed by any court because maybe such a question has not arisen before the court in India. We are going into the realm of important statutes during the last seven-year period which are trenching upon the principles of federalism farm laws I do not have to explain too much in detail about farm laws it was under entry 33 of concurrent list that the central government came up with three laws entry 33 concurrent list which was essentially on farming which is an agricultural service entry 14 stair list too so challenges were raised in the supreme court saying that legislative competence is one major ground that can render the law completely invalid but before the aspect was looked into the central the supreme court stayed the implementation of three laws I do not know how supreme court can stay implementation of the law because rules were not framed so before even the rules were not framed such a stake could not have been given by the supreme court although supreme court and even central government agreed to it it was probably at the suggestion of solicitor general that supreme court okay we'll stay the laws anyway the laws were withdrawn and it still leaves a question as to how the government can take over very limited aspect of trade and commerce and then legislate upon it and the question as to how farm laws were passed in the parliament is a completely different aspect altogether because it was there was no division and it was over a voice note objections were raised but still the laws were sought to be validly passed the manner of passing farm laws is also important and that was again raised before supreme court but now the matters have become infectious because the laws are withdrawn Kashmir is extremely important from the perspective of federalism because Kashmir was a model of fully federal state within a quasi unitary setup India is a quasi I do not call India quasi federal it's a quasi unitary dispensation India being a quasi unitary state within that the government India is pregnant with Kashmir which had full federalism there was exclusive power for states with respect literally everything and the central government only had as you all know terrorism and currency etc etc so but again that was under article 370 invoking article 370 sub clause 3 original article 370 sub clause 1 was rendered invalid by the parliament there was a separate interpretation given for sadhari riasat etc etc that you are all familiar under article 267 what amazes me really is how statehood has been completely deleted so withdrawal of a state withdrawal of state is first time in the history of India whether that can be done at all is something which is very important because article 3 does not talk about deleting a state altogether so I have extracted article 3 here formation of new state and alteration of areas boundaries or names of existing this is the title the parliament may by law form a new state there is no difficulty by combining two or three states or whatever they can form a new state increase the area of any state they can take some area increase it delete parts of states that's also possible alter boundaries of a state possible alter the name of a state bombay has been changed my that's also possible can you delete a state this article 3 does not talk about it it's still not discussed in great detail anywhere so deleting a state could not have been done according to me although there are two sides of how you should approach article 370 some may say that time has come some may say that 370 abrogation was completely bad I had filed a matter in Supreme Court challenging abrogation of 370 for various grounds violation of 21 14 etc etc but the kind of power that is available with the parliament to completely take away statehood is something which is shocking because what you what you need is you have to refer to the state so if you want to for example in the case of Andhra Pradesh bifurcation of Andhra Pradesh you seek the opinion of the legislative assembly there the legislative assembly can say that we are not agreeable for it or we are agreeable for it so whatever is the opinion of the legislative assembly the parliament can still go ahead and with the people present in voting they can bifurcate a state or delete a state and whatnot so the kind of power that is available with the parliament in this aspect is completely amazing because it can literally do anything so these are the reasons why I call India quasi unitary state because center has overwhelming extreme powers let's see what we are so we know what IS card and rules amendments are all of you would have been following it have extracted few opinions of leaders against it many states have given consent but many states have not given consent many states have written to the prime minister and also the concerned department their their objection etc what fascinated me the most and what in fact pique my interest is the opinion of kerala chief minister who said here he said that it would invoke fear psychosis in the people in in the civil servants because when you are at the complete control of the central government then how far will you be able to implement the policies of the state government so for example if you are you know managing director of a state corporation that is and that that is given the duty of of implementing a project let's say that project is a pet project of that state government the party at the center does not like it and you are the managing director you are an IS officer central government can without asking anyone take you out of it and give you a separate assignment in central government you know maybe demote you so these are all aspects which is very concerning so in so far as the larger question is concerned of federalism and it should be discussed in detail dam safety act is another act which was passed very recently plenty of examples i'm just discussing a few the dam safety act is one act where especially in the Tamil Nadu that the state where the reservoir is in different state but the control of the dam is with the state of Tamil Nadu all of it will go to the central government and as per the dam safety act new committees and new authorities are formed under the act um state committee on dam safety dam safety state dam safety organization national committee on dam safety national dam safety authority etc etc the state's power is completely taken away so how far that can be done that is especially because of the reason that water is in the state list so if the water is in the state list under what predicts can the government the union government take it so these are all important aspect entry 17 of the state list the state can make laws on water supply irrigation canal etc entry 56 of the union list allows parliament to make laws on the regulation of interstate rivers and river valleys if it declares such regulation to be expedient in public interest so the union government while passing dam safety act was the minister concern was saying in the parliament that it isn't the public interest but how do you determine public interest whose interest have you taken into account if you go to a person who's a farmer in in Tamil Nadu deriving water from a reservoir there and he's saying that he's very happy with it is that taken into account perhaps not so these are all important aspects and very clear violations of federalism but it is amusing that this act was not opposed vigorously by even opposition parties in the parliament maybe for the reason that dam safety is a very sensitive issue but opposition except for I think a few parties there there was no opposition to this bill the dam safety bill Lok Sabha had passed it much earlier it was passed very recently in Rajasabha and now it is an act so this is something which will have to be discussed in detail ports is another aspect major ports minor ports major ports anyway it is with the central government because it comes in the union list minor ports in the concurrent list and that's very important minor ports is in the concurrent list the earlier act is Indian ports act of 98 Indian ports act of 98 says that control is with the state government but the new bill which is the Indian ports bill of 2021 takes away the powers of the state government and it is vested on maritime dispute development council and appointments to maritime dispute development council is done by the union government so again state's power is taken away electricity amendment bill is one such example where electricity as a subject is in the concurrent list and again the control of electricity in one state the regulation there of regulatory mechanism whatever you call it is with the state electricity regulatory commission and state electricity regulatory commission members there are appointed by the state government so the new bill proposes to create a new selection process selection committee where the members are overwhelmingly from the central government so how is that possible and again a question of fatalism because now if you take if you take Kerala as an example the members of state electricity regulatory commission of Kerala the state government will not have any power so it will be completely determined by that committee and who are the members of that committee members of the committee is headed by a retired supreme court judge and other members are from the executive secretary of the of the power ministry is there two secretaries of two chief secretaries from state governments will be there but the state governments will be very different it's on it's on rotation basis so this is it's on rotation basis so maybe the committee which comprises of chief secretary of Maharashtra will determine the members of SCRC in Kerala how can you do that one question and again this committee is the only member from judiciary is the chairperson being the supreme court judge ex supreme court judge so in in Roger Matthew judgment which I discussed earlier in Roger Matthew judgment it has been very clearly held that appointments to tribunals should be by a committee which is having majority from the judiciary because independence of judiciary is part of basic structure independence of judiciary is also something which is extremely important can the executive completely determine who are the judges in the tribunals because that's again is a question under tribunalization various judgments have come series of judgments starting from Madras Bar Association of early 2000 2010 Madras Bar Association 2014 Madras Bar Association 2000 subsequently there was Roger Matthew after Roger Matthew there was a recent Madras Bar Association where tribunal rules was again challenged so in all of these matters starting from Chandrakumar starting from Chandrakumar and series of judgments it's there where it's very clearly held that tribunals cannot be completely the appointments cannot be made by the executive there should be a majority by the judiciary that is because judiciary if you ensure the majority of judicial members there will be independence of judiciary and independence of judiciary is a basic structure of the constitution and that cannot be touched so these are all issues again under the realm of federalism bs of fact again you you may all know 15 kilometers has been increased to 50 kilometers in a sense the bordering districts entirely the they'll the BS BSF will also have power to arrest etc they they have sweeping powers so how far that can be done so security national security is a difference anyway investigating agencies conflict in West Bengal earlier discussed this is again a big issue which is continuing every new day you will see a new news of conflict between state government the state police and central investigating agencies GST is other aspect Tamil Nadu finance minister has been consistently raising the issue of insufficient compensation from GST council and how far is that considered by the council and how far the larger question of physical federalism has impacted the state government after GST is something which is which will have to be discussed in great detail again many states have obviously consented to it they are all parts of the council but many of the PTR Jagarajan finance minister of Tamil Nadu had said that they are even considering making a huge human crew and perhaps pulling out of GST council because they're they're they're this thing is not being considered at all national education policy something which I wanted to talk about is judicial federalism judicial federalism is a relatively new topic because federalism is equally applicable for judiciary as well the division of powers between states and the state high court and the supreme court in my opinion it's completely skewed the judgment of NJAC had again reiterated that there will only be collegiate system but what is the collegiate system collegiate system is five senior more supreme court judges recommending for appointment of high court judges so what happens is that supreme court collegium becomes the all powerful body who's controlling appointments to the high court and because of that high courts and high court judges become subservient to the supreme court judges and it is only if you cater to the demands of supreme court judges that the high court judges will be elevated to other high court steve justices or perhaps even to the supreme court so it's it's it's something which is completely skewed in the sense that there is a there is in subordination in a lot of aspects and that is not right and that is not even prescribed in the constitution because according to the constitution high courts are not subordinate to the supreme court high courts are equally independent bodies of power having having even larger powers because under 226 of the constitution high courts are widest of powers so such subordination of high court is not prescribed in the constitution and it should not be there by way of various judgments of supreme court so for second judges case and such again be these judges case of prescribed a collegium system which according to the judges in njc case itself is bad could you Joseph after njc cases come come out on public said that he is regretted his opinion in njc so these are all larger aspects of that will have to be discussed judicial federalism according to me is we'll have to be discussed and according to man with this I close my talk and it was really great talking to all of you I did not deal too much with GST etc because these are all technical aspects of on which I do not have too much of expertise so I hope my this thing is of some use to all of you thank you so much