GS2 PYQ (Mains Answer Writing): Principle of Federal Supremacy | Indian Polity for UPSC CSE PDF Download

From the resolution of contentious issues regarding distribution of legislative powers by the courts, 'Principle of federal supremacy' and 'harmonious construction' have emerged. Explain (UPSC GS2 Mains)

Introduction
Federalism is constituent element of basic structure of Indian constitution though the word ‘federal’ is nowhere mentioned in the constitution. A federal government is one in which powers are divided between the national government and the regional governments by the constitution itself and both operate in their respective jurisdictions independently.
Centre state legislative relations and contentious issues: 

• Articles 245 to 255 of Indian constitution deal with legislative relations between the centre and the states. This mainly has 4 aspects - Territorial extent of centre and state legislation, distribution of legislative subject between centre and states, Parliamentary legislation in state field and centre’s control over state legislation. 
• In this light, the constitution provides for a three-fold distribution of legislative subjects between the centre and the states i.e., List I the Union list, List II the state list and List III the concurrent list in schedule VII of the Indian Constitution. 
• Principle of federal supremacy and harmonious construction: If any matter falls under an entry in List I and also in List II the entry in List I shall prevail, this is called the principle of Federal supremacy. The federation has predominant legislative power. The state and concurrent list are subordinate to it. 
• The rule of Federal Supremacy is applied as a last resort, it is the duty of the court to read the entries of the two lists together to arrive at a reasonable and practical construction of the language, to reconcile entries and bring harmony. It is only when the reconciliation proves impossible then the overriding power of Parliament should prevail. 

This is called the rule of Harmonious construction. Examples: 

• Pointing out the fundamental aspect of Indian Federalism, B. P. Jeevan Reddy, in S. R. Bommai v. Union of India observed that “within the sphere allotted to them, the States are supreme. The Centre cannot tamper with their powers. 
• The 42nd Amendment Act was perhaps one of the most controversial. Effected in 1976 during the Emergency by then Prime Minister Indira Gandhi, the amendment restructured the Seventh Schedule ensuring that State List subjects like education, forest, protection of wild animals and birds, administration of justice, and weights and measurements were transferred to the Concurrent List.In the case State of West Bengal v. 
• Committee for the protection of democratic rights: the interpretation placed by the Supreme Court on S. 5 and S. 6 of the Delhi Special Police Estab1ishmet Act, 1946 (‘DSPE Act’ for short). – The CBI as a Special Police set up under the DSPE Act for the investigation of certain offences in any Union Territory. The Superintendence of the CBI vests in the Central Government, which specifies, by notification, the offences or classes of offences to be investigated by the CBI. 
• Section 5 of the DSPE Act empowers the Central Government to extend the powers and jurisdiction of the Special Police Establishment to any area, in a State, not being a Union Territory .for the investigation of any offences or classes of offences specified in a notification under S. 3, and on such extension of jurisdiction, a member of establishment shall discharge the functions of a police officer in that area, and shall, while show discharging such functions, be deemed to be a member of a police force of that area and be vested 238 with powers, functions and privileges and be subject and liabilities of a police officer belonging to that police force. 
• Section 6: Consent of the State Government to exercise of powers and jurisdiction — Nothing contained in S. 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, not being a Union Territory or railway area, without the consent of the State Government. 

Conclusion 
But there have been contentions revolving around the distribution of legislative powers, for instance, Recommendations of Niti Aayog have suggested for shifting of police and public order from the state List to the concurrent list and reason stated is an increase in inter-state crimes.

Topics covered - Judicial Activism, Cooperative Federalism