The Oxford Handbook of the Indian

Constitution
Sujit Choudhry (ed.) et al.

https://doi.org/10.1093/law/97801987048
98.001.0001
Published online: 06 February 2017
Published in print: 01 March 2016
Online ISBN: 9780191774034 Pr
ISBN: 9780198704898

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CHAPTER

25 The Federal Scheme 

Mahendra Pal Singh

https://doi.org/10.1093/law/9780198704898.003.0025 Pages 451–465

Published: 06 February 2017
 Abstract
This chapter examines the Indian Constitution’s federal scheme. It begins with an overview of the
basic features of the federal framework, with particular emphasis on distribution of powers—
legislative, executive, and judicial—between the Central Government and the regional governments
(that is, States), the supremacy of the Constitution, and dispute resolution mechanisms for evaluating
the competence of the two governments for exercising their powers or functions. It then considers the
centralised character of Indian federalism by focusing on the identity of States, legislative competence,
and regional emergencies. The chapter concludes by re ecting on how the federal arrangement should
be understood and judged.

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Keywords: executive power, Central Government, dispute resolution, federalism, Indian Constitution,
judicial power, legislative competence, legislative power, regional emergencies, regional governments
Subject: Constitutional and Administrative Law, Law
Series: Oxford Handbooks
Collection: Oxford Handbooks Online

I. Introduction

ONE way of classifying a constitution is whether it is unitary or federal. Broadly speaking, in a unitary
constitution the totality of the powers of the State is vested in one government, while in a federal
constitution it is divided between a government for the whole country and a number of governments for its
1
di erent regions. After initial di erences on whether the Constitution of India is unitary or federal, it has
nally been decided that it is federal and that federalism is one of its basic features, which cannot be
2
changed even by an amendment of the Constitution. The initial di erences and the nal conclusion
indicate that ner issues are involved in the identi cation of a constitution. Every constitution responds to
the background, surrounding conditions, and future projection of the country of its making. The
Constitution of India is no exception to this rule. This chapter studies the Constitution’s federal scheme. It
rst provides an overview of the basic framework and distribution of powers between the Centre and States.
It then turns to three speci c topics—the identity of States, legislative competence, and regional
emergencies—to demonstrate the centralised character of Indian federalism. It concludes with some
re ections on how we should understand and judge this federal arrangement.

II. The Federal Framework

The commonly accepted features of a federal constitution are: (i) existence of two levels of government: a
general government for the whole country and two or more regional governments for di erent regions
within that country; (ii) distribution of competence or powers—legislative, executive, judicial, and nancial
p. 452 —between the general and the regional governments; (3) supremacy of the constitution—that is, the
foregoing arrangements are not only incorporated in the constitution but they are also beyond the reach of
either government to the extent that neither of them can unilaterally change nor breach them; (4) dispute
resolution mechanism for determining the competence of the two governments for exercising any power or
for performing any function. We may examine the federal scheme in the Constitution of India on the above
parameters.
 1. Central and Regional Governments
The Constitution designates the Union government as the Union of India and the regional governments as
States, each one of the latter having a name. Initially they were divided into three categories—Part A, Part B,
and Part C States—according to their historical antecedents. But with the reorganisation of the States in
1956 the entire territory of India was divided into States and the Union Territories. They are all named along
with their territorial dimensions in Schedule I of the Constitution. Their number changes with the
reorganisation of States from time to time. Presently, there are twenty-nine States and seven Union
Territories. With the exception of the State of Jammu and Kashmir, which has a special status under the
3
Constitution and has its own Constitution, the rest of the States are governed by the Constitution of India

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and have no separate constitutions of their own. However, in view of the special features of some of the
4
States, the Constitution makes special provisions for them not applicable to other States. Such an approach
5
may be termed as asymmetric federalism. As regards the Union Territories, though all of them are expected
to be subject to the direct administration of the Union of India, the Constitution also makes special
6
provisions for some of them. Special arrangements are also made separately for the Scheduled and Tribal
7
Areas. While the provisions of the Fifth Schedule apply to the Scheduled Areas and Scheduled Tribes in any
State, the provisions of the Sixth Schedule apply to the areas in the States of Assam, Meghalaya, Tripura,
and Mizoram.

The uctuation in the number of States raises the question of whether the States can be put out of existence,
resulting in the absence of the rst feature of a federal constitution from the Constitution of India. Although
no possibility of that kind has ever been entertained in practice, it does not even seem to be a theoretical
possibility. According to Article 1(1) of the Constitution, ‘India, that is Bharat, shall be a Union of States.’ So
long as this Article stands as it is, India must have more than one State. The question of whether Article 1(1)
may be deleted or amended to read ‘India, that is Bharat, shall be a Union’ or ‘unitary State’ stands
8
answered by the basic structure doctrine. Well before Kesavananda Bharati v State of Kerala, which laid down
the basic structure limit on amendments, Conrad cited Article 1(1) to argue that the basic structure of the
9
p. 453 Constitution was unamendable and the Court cited him among others to arrive at its conclusion.
Subsequent decisions have con rmed that federalism is part of the basic structure of the Constitution and is
10
therefore beyond the power of amendment. While federalism is a part of the basic structure, two features
of the Constitution—Parliament’s power to alter State boundaries and the representation of the States in
Parliament—show the centralisation feature of Indian federalism. This will be subsequently examined.

A third level of governments at the village and municipal levels has also been introduced into the
Constitution by way of the Seventy-third and Seventy-fourth Amendments. This level was already
11
envisaged in one of the Directive Principles of State Policy, and was within the jurisdiction of the States
under Entry 5 of List II of Schedule VII to the Constitution. While these Amendments had hoped to
strengthen local government in India, strictly speaking, local government bodies remain within the
12
competence of the States for devolution of powers and functions. For this reason they have not yet been
able to develop an e ective third tier of government and are, therefore, not of much interest from the point
13
of view of the federal scheme.
 2. Distribution of Powers
The totality of the powers of the State is divided into legislative, executive, judicial, and nancial. In a
federal constitution, such powers are shared between the central and the regional governments. No
universal rule or general principle for sharing these powers exists, and it is often hard to separate matters of
common concern from those involving local needs. Quite often matters of local interest become matters of
general interest or of interest to more than one region and, therefore, such matters may be placed in a third
category over which both the central and the regional governments may exercise powers as the occasion
demands. Another recommended general rule is that while the Union government should have enumerated
powers the rest may be left to the regional governments. But it is easier said than practised, for some powers

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need to be within the jurisdiction of both. Moreover, over time, matters may emerge which are incapable of
being handled by the regional governments. In that case they must be handled by the Union government. In
view of such reasons no hard-and-fast rule of universal application can be prescribed for the distribution of
powers between the central and the regional governments. In this sub-section, we will focus on how the
Indian Constitution distributes powers between the Union and the States.

a. Legislative Powers
The distribution of legislative powers is primarily given in Chapter 1 of Part XI of the Constitution.
14
p. 454 Exceptionally, it may also be found in other provisions. The rst provision of this Part—Article 245—
prescribes the territorial jurisdiction of the Union Parliament and the State legislatures: the former can
make laws for the whole of India or any part of it, while the latter can make laws for the territory of that
15
State or any part of it. Though the laws of Parliament cannot be invalidated on grounds of their
16
extraterritorial operation, Parliament cannot make extraterritorial laws. State laws may also have
extraterritorial operation if a nexus may be established between the subject matter of law and the legislating
17
State. The legislative subjects are quite exhaustively enumerated in three lists: List I—Union List; List II—
State List; and List III—Concurrent List. No tax entry is, however, included in List III. They consist of
ninety-seven, sixty-six, and forty-seven items, respectively. The total existing number of items varies in
each list because of amendments. Article 246 of the Constitution lays down the law for the exercise of power
over these subjects. Brie y, Parliament has the exclusive power to make laws on any subject included in List
I, overriding the powers of the State legislatures to make law on any subject included in List II or List III—
that is, if a subject can possibly be read in List I as well as in any of the other two lists it is deemed to be
included only in List I and not in any of the other two lists. Secondly, if a subject is included in List III,
Parliament has the power to make law on that subject without regard to its inclusion in List II. Thirdly, the
State legislatures have the power to make law on any subject included in List II, subject to the condition that
that subject or any part of it is not included in List I or List III. Thus the legislative powers assigned to the
Union have primacy over the powers assigned to the States. Finally, Parliament has the exclusive power to
make law on any subject for any territory not included in the territory of any State. The legislative subjects
including taxes not listed in any of the three lists—that is, the residuary subjects—have been assigned
exclusively to Parliament.

In the foregoing arrangement, Parliament clearly emerges in a dominating position as against the State
legislatures. The legislative items included within List I are much more numerous—ninety-seven compared
to sixty-six in List II. They are also much more important than the ones in the other two lists. In case of
con ict, items in List I override items in Lists II and III and items in List III override those in List II. Thus
List II becomes the least important. Finally, any residuary subject also has precedence over the powers of
18
the State legislatures in Lists II and III. For items in List III, if the State law con icts with the law of
Parliament the latter prevails over the former, though with the prior approval of the President, State law
19
may also prevail over the law of Parliament. Parliament’s powerful place in comparison with the States
will be explored further in a later section. For now, it is important to note that in certain cases Parliament
 may override the foregoing distribution of legislative powers between the Union and the States. For
example, during an emergency arising from war, external aggression, or armed rebellion Parliament may
20
make laws on any item in List II; Parliament may make law on any subject ‘for implementing any treaty,
agreement or convention with any country or countries or any decision made at any international
21
p. 455 conference, association or other body’; if the President of India is satis ed that the government of any
State cannot be exercised in accordance with the provisions of the Constitution, he may assume all the
22 23
powers of the State and authorise Parliament to make laws for that State; and so forth. In view of these
exceptions, doubts are sometimes expressed over whether the distribution of legislative powers between the
Union and the States has any meaning. The working of the Constitution so far, however, establishes that the
primary distribution of legislative powers is the norm and the exceptions have been invoked only in limited

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cases.

b. Executive Powers
The executive power of the Union and States vests respectively in the President of India and the Governor of
every State and is exercised by them either directly or through o cers subordinate to them in accordance
24
with the Constitution. While the President is elected by an electoral college comprising elected members of
Parliament and elected members of State Legislative Assemblies, the Governor of a State is appointed by the
President and though his term of o ce is ve years, he holds his o ce during the pleasure of the
25
President. With some exceptions, the executive power is divided between the Union and the States on the
same lines as the legislative powers. Accordingly, the executive power of the Union extends to all those
matters on which Parliament has the power to make laws, as well as to matters on which it may exercise
such power by virtue of any treaty or agreement. However, the executive power of the Union does not extend
26
to matters included in List III unless otherwise provided in the Constitution or any law of Parliament.
Correspondingly, the executive power of the States extends to matters on which State legislatures have the
power to make laws, subject to the condition that on matters in List III it is subject to the Union’s power, as
27
mentioned above.

Some of the exceptions that the Constitution makes to this distribution of powers include the following: the
exercise of State executive power must ensure compliance with the laws of Parliament and existing laws
applicable in the concerned State, and for this purpose the Union has the executive power to give such
28
directions to any State as it considers necessary; in the exercise of its executive power the Union may also
give directions to any State for the construction and maintenance of means of communication of national or
29 30
military importance as well as for the protection of railways within the State; and so forth.
 c. Judicial Power
Unlike the legislative and executive powers, the Constitution does not divide judicial power between the
Union and the States, although in the textual arrangement of constitutional provisions it places the Union
and State judiciary separately. The former includes the Supreme Court, while the latter includes the High
31
p. 456 Courts and the subordinate courts. It also authorises Parliament to establish additional courts for the
32
better administration of Union laws and for the creation of an all-India judicial service. Except for the
appointment of judges of the Supreme Court and the High Courts, which is made by the President of India,
appointment of administrative sta and the budget of the Supreme Court are within the jurisdiction of the
Union and of the High Courts and subordinate courts within the jurisdiction of the States. But the same
33

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courts administer the laws of the Union as well as of the States. In the allocation of legislative powers to
the Union and the States, the Supreme Court for all purposes and the High Courts with some exceptions are
34
placed within the exclusive power of the Union, while the administration of justice, constitution, and
organisation of all courts other than the Supreme Court and the High Courts are placed within the
35
concurrent jurisdiction of both the Union and the States. The o cers of the courts and procedure in rent
and revenue courts as well as court fee in all courts except the Supreme Court are placed within the
36
jurisdiction of the States. With respect to the judiciary the paramount consideration of the Constitution
makers was its independence from the other two wings of the State as well as from local in uence.
Therefore, the judiciary was envisaged and arranged as unitary rather than federal to exclude the possibility
37
of local in uence.

d. Financial Powers
38
Although the imposition and collection of any tax is a legislative function, which is assigned to Parliament
and State legislatures in Article 246 read with the relevant entries in Lists I and II, nance is covered
separately in Part XII of the Constitution. Major taxes such as income tax, excise duty, corporate tax, wealth
tax, estate duty, service tax, and any residuary tax are assigned exclusively to Parliament while taxes such as
land revenue, tax on agricultural income, estate duty on agricultural land, excise duty on alcoholic and
intoxicating drugs, tax on entry of goods, sales tax, passenger, goods, and vehicle tax are assigned
exclusively to the States. As the revenue from State taxes is expected to be inadequate to discharge their
constitutional obligations, Part XII makes provision for the distribution of revenue from taxes between the
Union and States. Both the Union and the States are required to maintain consolidated and contingency
39
funds for receiving and depositing any revenues from any source. For the distribution of revenues between
40
the Union and the States some taxes are levied by Parliament but collected and appropriated by the States,
41
service tax is levied and collected by the Union but appropriated both by the Union and the States, some
42
taxes are levied and collected by the Union but are assigned to the States, some taxes are levied by the
43
p. 457 Union and are distributed between the Union and the States. The Union is also required to make some
44 45
grants to the States. Provisions are also made for the Union and the States to borrow money.

The other notable provision on nancial relations is the provision for the Finance Commission, which the
President appoints at the end of every ve years for recommending distribution of revenues between the
Union and the States, principles for grants-in-aid, measures for augmenting the consolidated fund of
States for supplementing the resources of Panchayats, and on any other matter referred to it. The
recommendations of the Commission are placed before Parliament and are invariably implemented. Thus
the Commission performs an important role in establishing the balance between the responsibilities of the
governments and the revenues available for discharging them, something that is often a contentious and
delicate matter in federal constitutions.
 3. Supremacy of the Constitution
Unlike some other constitutions, the Constitution of India does not have a supremacy clause. However,
neither its makers, nor the courts, nor the governments at any level have entertained any doubt at any stage
that it is the highest law of the land binding on all organs of the State. Therefore, soon after the
commencement of the Constitution, laws of di erent legislatures, including laws of Parliament and the
executive actions of the State, were challenged in the High Courts and the Supreme Court and these courts
entertained such challenges without either of the parties raising any concerns over whether the
Constitution must be complied with. In India, the supremacy of the original Constitution has been
established not only to the extent that all actions of di erent organs created under it must comply with it

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but also that the amending body must exercise its amending power subject to the condition that the basic
46
structure of the Constitution is not undermined.

4. Dispute Resolution Mechanism

For resolving disputes with respect to the constitutional position or powers of the Union and the States or
States inter se, the Constitution provides access to courts. Unlike some constitutions, which provide a
separate court for deciding constitutional questions, our Constitution entrusts this function to the same
courts which decide all other matters. For a legal dispute between the Union and the States, the Supreme
47
Court may be approached directly by ling a suit in its original jurisdiction. Since the commencement of
the Constitution, only a few occasions have arisen for availing this remedy. In other disputes of a collateral
nature in which only one of the parties is the Union or any of the States, the matter may be raised in any
court having the territorial or pecuniary jurisdiction. However, as a matter of practice as well as convenience
all such questions are initiated in the High Court having the territorial jurisdiction in the matter because the
subordinate courts have no power to invalidate laws made either by Parliament or by a State legislature or to
48
p. 458 issue writs. The mechanism of courts for dispute resolution between the Union and States has worked
well and no special complaints have ever been made about it besides general complaints about the judicial
process.

III. The Centralised Character of Indian Federalism

The above discussion lays out the formal division of powers between the Union and the States. As is clear
from many of the provisions mentioned, the Constitution tilts heavily in favour of the Union. In this section,
we pay closer attention to particular themes and constitutional developments over the past six decades to
show that the working of Indian federalism conforms to the image of centralisation.

1. The Identity of States

An important matter to consider in the context of any federal polity is the weight it grants to the identity of
States. In this Indian context, the weakness of this identity is revealed by examining how the Constitution
treats the territorial integrity of States and how it provides for their representation in Parliament.
 a. State Boundaries and New States
Article 3 of the Constitution makes serious inroads into the position of States insofar as it authorises
Parliament to form a new State by separating any territory from a State or by uniting two or more States or
any part of them, or by uniting any territory to a part of any State. It may also increase or diminish the area
of any State or alter the name of any State, subject to the condition that the diminished territory should
remain part of the territory of India and not be transferred to any other country. The power to transfer any
territory to any other country is not included in Article 3 because such transfer requires an amendment of
49
the Constitution through Article 368. The only safeguard available to the concerned State in Article 3 is
that its views are sought by the President on the proposed law within the speci ed time. But Parliament is

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not obliged either to consider these views or to modify the law. By this law Parliament may make all the
consequential changes in any of the provisions of the Constitution without the need to observe the
50
p. 459 procedure for amending the Constitution.

51
In Babulal Parate v State of Bombay, the Court rst considered the scope of Article 3. The appellant argued
that the formation of the State of Bombay under the States Reorganisation Act as a single unit instead of the
three units proposed in the original Bill was in contravention of Article 3, since the legislature of Bombay
State had no opportunity to express its views on the amendments made in Parliament to the Bill. The Court
held that (i) State legislatures have a right under Article 3 only to express their views, not to make
modi cations; (ii) ‘Bill’ in the proviso to Article 3 does not include amendments of any of the clauses of the
52
Bill. In Pradeep Chaudhary v Union of India, the constitutionality of Section 3 of the Uttar Pradesh
Reorganisation Act 2000, which included Haridwar District in the State of Uttarakhand (then Uttaranchal),
was at issue. The original Bill placed before the State legislature only mentioned the city of Haridwar as
being part of the territory of Uttaranchal, but the amended version passed by Parliament included the whole
district of Haridwar. Citing Babulal Parate with approval, the Court reiterated that, while ascertaining the
views of the State legislature under the proviso to Article 3 was mandatory, Parliament was in no way bound
by these views.

53
The interpretation of parliamentary supremacy was extended to Article 4 in Mangal Singh v Union of India.
The appellants contended that the Punjab Reorganisation Act 1966 violated the mandatory provisions of
Article 170(1) by departing from the minimum prescribed membership of the State Legislative Assembly.
The Court, however, held that the power to reduce the total number of members of the assembly below the
54
number prescribed by Article 170(1) was ‘implicit in the authority to make laws under Article 4’. According
to the Court, the scope of the phrase ‘supplemental, incidental, or consequential’ in Article 4 was not just
restricted to the amendment of the First and Fourth Schedules, but also to the ‘admission, establishment or
55
formation of a State’ to ‘conform to the democratic pattern envisaged by the Constitution’. Thus, post-
Mangal Singh, we can see that the only requirement is that the new State must have e ective legislative,
executive, and judicial organs, as the Constitution requires this for every State.

56
An important recent decision is Mullaperiyar Environmental Protection Forum v Union of India. One of the
questions in this case was the constitutionality of Section 108 of the States Reorganisation Act 1956, which
provided for the continuance of agreements between the Central and State Governments. The petitioner
contended that it encroached upon the legislative competence of the State legislature under Entry 17 of List
II. The Court opined that ‘the law-making power under Articles 3 and 4 is paramount and is not subjected to
57
or fettered by Article 246 and Lists II and III of the Seventh Schedule’. Indeed, ‘the constitutional validity
of law made under Articles 3 and 4 cannot be questioned on the ground of lack of legislative competence
58
with reference to the Lists of the Seventh Schedule’. It is to be noted that a still more recent decision, State
59
of Himachal Pradesh v Union of India, appears to be at odds with the decision in Mullaperiyar. In a dispute
over the sharing of electricity generated by the Bhakra-Nangal and Beas hydroelectric projects, the State of
Himachal Pradesh claimed a 12 per cent share of the power generated by the projects for free, since it was
60
p. 460 the ‘home State’ of the projects. In response, the defendants contended that since no such right was
 granted to the State under the Punjab Reorganisation Act 1966 (made under Article 3), it did not have any
61
‘pre-existing or natural rights over its land and water’. The Court, instead, opined that ‘under Article 3,
Parliament cannot take away the powers of the State executive or the State legislature in respect of matters
62
enumerated in List II of the Seventh Schedule to the Constitution’. In reaching this conclusion, the Court
did not, however, cite the Mullaperiyar judgment.

b. State Representation in Parliament

Section 3 of the Representation of the People Act 1951 originally provided that the quali cation for being
chosen as a representative of a State in the Council of States in India’s Parliament (the Rajya Sabha) was that

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the candidate be ‘an elector for a Parliamentary constituency in that State or territory’. Crucially, this
provision was amended in 2003 by substituting ‘in that State or territory’ with ‘in India’. The amendment
63
was challenged by a writ petition under Article 32 in Kuldip Nayar v Union of India.

The petitioners argued that the change ‘[violated] the principle of federalism, the basic feature of the
64
Constitution’. The Rajya Sabha, it was argued, was constituted to provide representation to the people of
the various constituent States of the Indian Union and a representative with no domicile in a State cannot
e ectively represent the people of that State. In other words, the representative must have an ‘identi able
65
nexus’ with the State. It was further argued that the amendment had the e ect of ‘equating’ the
membership quali cation of the Rajya Sabha with that of the Lok Sabha; it obliterated the distinction
between the two houses of Parliament. The intent of the constitutional scheme was instead for members of
the Lok Sabha to represent their constituency and members of the Rajya Sabha to represent their State. The
amendment e ectively rendered the Rajya Sabha redundant. The petitioners also claimed that a person
elected to the Rajya Sabha under the amended quali cation would not amount to a representative of the
State as required by Article 80, but would only be a representative of the State Assembly. Article 84 requires
Parliament to prescribe by legislation ‘some connection’ between the representative and his State, which
66
was now absent. Developing this argument, it was suggested that by failing to prescribe an alternative
quali cation to the one it had repealed, Parliament had in e ect ‘abdicated’ its responsibility under Article
67
84(c). It was now left entirely to the ‘subjective determination of each State Assembly, to elect any one’ to
68
be their representative in the Rajya Sabha. This was an interesting inversion of traditional federalism
arguments by the petitioners: in essence, they were contending that State assemblies were not competent to
decide who was quali ed to represent them in Parliament.

Sabharwal CJ, speaking for the Court, was unconvinced by these arguments. In rejecting them, he made a
number of interesting observations about the nature of Indian federalism. To begin with, he declared that
‘The nature of federalism in the Indian Constitution is no longer res integra … There can be no quarrel with
69
the proposition that the Indian model is broadly based on federal form of governance.’ He pointed to
p. 461 Ambedkar’s criterion for federalism from the Constituent Assembly debates: ‘The chief mark of
federalism as I said lies in the partition of the legislative and executive authority between the Centre and the
70
Units by the Constitution.’

To pinpoint the precise nature of Indian federalism, he cited a number of judgments of the Court, including
71 72
State of West Bengal v Union of India and SR Bommai v Union of India, to reach the conclusion that while
‘the federal principle is dominant in our Constitution and that principle is one of its basic features … it is also
73
equally true that federalism under the Indian Constitution leans in favour of a strong Centre’. In addition
to judicial precedent, he cited the disproportionate legislative powers of Parliament in Part XI, the existence
of solely national and not State citizenship, and ‘perhaps most important … ’, the power of Parliament under
74
Article 3 to create new States and alter existing ones. This last power, according to him, was the answer to
the argument about the need for an ‘identi able nexus’ between the representative and his State: ‘in the
75
context of India, the principle of federalism is not territory related’. The Chief Justice then proceeded to
 compare India with other constitutions that provided for bicameral central legislatures: the United States
and Canada. He pointed to the fact that both countries, in marked contrast to the Indian Constitution, had
residence requirements speci ed in their respective constitutions for membership in the senate. This
allowed him to conclude that ‘residence, in the matter of quali cations, becomes a constitutional
76
requirement only if it is so expressly stated in the Constitution’.

2. Legislative Competence
The Constitution, as we have noted, contains an elaborate division of legislative power between the Union
and the States as laid down in the three lists in Schedule VII. How have con icts between these lists been

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interpreted? Does the resolution of such con icts buttress the claim that the federal model is greatly
centralised?

An illustrative case for the judicial understanding of the federal scheme is State of West Bengal v Union of
77
India. This dealt with the Coal Bearing Areas (Acquisition and Development) Act 1957, a statute that
authorised the Union government to acquire land vested in any State. The plainti argued that the State of
West Bengal was a sovereign authority, and the power of Parliament did not extend to depriving the State of
the property vested in it as a sovereign authority. The Court held that ‘even if the States are regarded qua the
Union as Sovereign’, ‘the power of the Union to legislate in respect of property situate in the States …
78
remains unrestricted … ’ In the process, the Court undertook a detailed review of the federal scheme and
concluded that it weighed clearly in favour of parliamentary supremacy: to assume the absolute sovereignty
79
of individual States was ‘to envisage a Constitutional scheme which does not exist in law or in practice’.

Decisions on the doctrine of harmonious construction, applied in the case of an overlap between the
p. 462 language of entries in di erent legislative lists, also illustrate this mindset. In Gujarat University v Krishna
80
Ranganath Mudholkar, the Gujarat University Act 1949 prescribed the medium of education for all of the
State’s universities. Entry 11 of List II empowered the State legislature here, but it overlapped with Entry 66
of List I. While holding that both entries had to be harmoniously construed, the Court nevertheless insisted
that ‘to the extent of overlapping, the power conferred by Item 66 List I must prevail over the power of the
81 82
State under Item 11 of List II’. This was followed in DAV College, Bhatinda v State of Punjab.

The same might be said about the understanding of residuary powers. In Union of India v Harbhajan Singh
83
Dhillon, the de nition of ‘net wealth’ in the Wealth Tax Act 1952 was amended to include agricultural land.
The relevant entry in List I (entry 86) expressly excluded agricultural land, and it was therefore argued that
the law fell within the scope of Entry 49 of List II. Sikri CJ’s majority opinion found that the entirety of the
Act fell within Entry 97, and not Entry 86. However, he also held that even if the Act fell within Entry 86,
there was ‘nothing in the Constitution to prevent Parliament from combining its powers under Entry 86,
84
List I with its powers under Entry 97, List I’. In any case, any doubt on the interpretation of Entry 97 was
85 86
‘removed by the wide terms of Article 248’. This was reiterated in Sat Pal & Co v Lt Governor of Delhi.

87
In Kartar Singh v State of Punjab, the constitutionality of the Terrorist and Disruptive Activities
(Prevention) Act 1987, among others, was in question. One of the grounds of challenge was that Parliament
lacked the legislative competence to enact the legislation, and it would instead fall squarely within the scope
of Entry 1 of List II—‘public order’. The Court rejected this contention, and held that Parliament was
competent to enact it, given the presence of Article 248 and Entry 97 in List I. Indeed, it ‘[was] not necessary
88
to consider whether it falls under any of the entries in List I or List III’. Similar reasoning was used in Naga
89
People’s Movement of Human Rights v Union of India, to uphold the legislative competence of Parliament to
enact the Armed Forces (Special Powers) Act 1958. In this case, even though the Court found speci c entries
in List I to support Parliament’s legislative competence, it reiterated that in the absence of a speci c entry
 in List II, Parliament would always have legislative competence to pass a law with its residuary powers, even
in the absence of a speci c entry in Lists I and III.

90
A nal example that might be o ered is repugnancy. In Zaverbhai Amaidas v State of Bombay, the State of
Bombay had enacted its own legislation to enhance the maximum punishment under the central Essential
Supplies (Temporary Powers) Act 1946. The relevant section in the central Act of 1946 was replaced by an
amendment in 1950. The appellant contended that he had been wrongly tried by a magistrate, instead of a
Sessions Court, as the Bombay Act required. The State countered that the central amendment in 1950 had
rendered the relevant section in the Bombay Act inoperative, even though it did not have an explicit
reference to the Bombay Act. The Court thus had to consider whether the later amendment by the Centre

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would amount to an implied repeal of the Bombay Act as it was ‘law with respect to the same matter’ under
the proviso to Article 254(2). The Court found that the wording of Article 254(2) allowed Parliament to not
p. 463 only expressly repeal a State law, but also to render it void by implication if it ‘[con icted] with a later
91
“law with respect to the same matter” that may be enacted by Parliament’. Comparing the subject matter
of the Bombay Act and the 1950 amendment, the Court found that the Bombay Act could not prevail against
92
the later central Act. In T Barai v Henry Ah Hoe, an o ence under the Prevention of Food Adulteration Act
1954 had been amended by the West Bengal State Legislature in 1973 to enhance the maximum punishment
from six years to life imprisonment. A subsequent parliamentary amendment reduced the maximum
punishment from six to three years. The Court cited Zaverbhai Amaidas with approval and not only allowed
the implied repeal of the West Bengal amendment, but also gave the accused retrospective bene t of the
reduced punishment.

3. Regional Emergencies
We might think that one example which resists the description of Indian federalism as heavily centralised is
93
the Supreme Court’s decision in SR Bommai. Here a nine-judge bench of the Court heard a number of cases
together relating to the imposition of ‘President’s Rule’ under Article 356. Although the Court could not
grant any relief to the petitioners, since elections had already taken place in most of the a ected States, it
was asked instead to formulate guidelines for the exercise of power under Article 356. Six di erent opinions
were given by the Court, and some of them have particular relevance for a discussion of federalism in the
Indian Constitution.

While SR Bommai is often cited as precedent for the proposition that federalism is a part of the basic
structure of the Constitution, and some opinions did say so, a close reading of the opinions shows that
federalism was peripheral to the nal outcome of the case. Instead, the idea of democracy and the principle
of separation of powers were far more central to the judges’ reasoning on the judicial review of the
Proclamation under Article 356. Five of the six opinions delivered discussed federalism (Verma and Dayal
JJ’s opinion is the exception), and three opinions (Ahmadi, Ramaswamy, and Reddy and Agrawal JJ’s) held
that federalism was part of the basic structure of the Constitution. But signi cantly, none of the opinions
traced the power of judicial review to the federal nature of the Constitution. Instead, the opinions cited
concerns about democracy and preserving the separation of powers.

Sawant and Singh JJ’s opinion (with which Pandian J concurred) cited HM Seervai to note that the ‘federal
principle is dominant in our Constitution’, but soon after asserted that ‘it is really not necessary to
94
determine whether … our Constitution is federal, quasi-federal or unitary in nature’. The real question was
‘whether the powers under Article 356(1) can be exercised by the President arbitrarily and unmindful of its
95
consequences to the governance in the State concerned’. Noting that ‘Decentralisation of power … is an
essential part of democracy’ and ‘in democracy, people are sovereign and all power belongs primarily to the
people’, Sawant J held that interference through Article 356 had to ‘both be rare and demonstrably
 96
p. 464 compelling’. Further, frequent elections because of the overuse of Article 356 risked ‘negating the …
97
democratic principle’ by making elections ‘the exclusive preserve of the a uent’.

98
Ramaswamy J discussed federalism brie y, but only to nd that India was ‘quasi-federal’. He traced
judicial review of Article 356 to the constitutional duty of the Supreme Court: the Court could not ‘merely be
an onlooker and a helpless spectator to exercise of the power under Article 356. It owes duty and
99
responsibility to defend the democracy.’ As the ‘ultimate interpreter of the Constitution’, the Court’s duty
was to ‘determine what powers the Constitution has conferred on each branch of the Government and
100
whether the actions of that branch transgress such limitations’. The opinion of Reddy and Agrawal JJ was
similarly cursory in dealing with federalism, and when it came to judicial review, simply stated that ‘The

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power under Article 356(1) is a conditional power. In exercise of the power of judicial review, the Court is
101
entitled to examine whether the condition has been satis ed or not.’

IV. Conclusion

The Constitution’s federal scheme has been a matter of debate since its founding. KC Wheare famously
102
characterised the scheme as ‘quasi-federal’ and others like CH Alexandrowicz raised the question of
103
whether Indian should in fact be called a federation at all. Such notions of federalism, largely focused on
autonomous units coming together, became outdated, however, after World War II. There emerged a far
more diverse understanding of how regional units might be granted a degree of autonomy. The Indian
federal model emerged out of, and has been sustained by, an understanding that only a strong Union can
keep the country together and is necessary in the conditions in which the Constitution is operating. There
has also been a belief that the way in which regional autonomy is provided under the Indian scheme a ords
a certain exibility, and is able to thereby avoid the rigidness to which federal models are often vulnerable.

From time to time, but particularly since the end of one-party rule in the country in 1967, demands for re-
examining the federal arrangements have been made. Generally, the States ruled by regional parties have
demanded greater autonomy and a larger share in revenues so that they can pursue their policies
104
unin uenced by the Centre and without depending on it for funds. In response to persistent demands
from the States, the Union appointed a commission headed by Justice RS Sarkaria to ‘examine and review
the working of the existing arrangements between the Union and States in regard to powers, functions and
responsibilities in all spheres’ and to ‘recommend such changes or other measures as may be
105
p. 465 appropriate’. In the performance of its job and making recommendations, the Commission was asked
to keep ‘in view the social and economic developments that have taken place over the years’ and to have
‘due regard to the scheme and framework of the Constitution which the Founding Fathers have so
sedulously designed to protect the independence and ensure the unity and integrity of the country which is
106
of paramount importance for promoting the welfare of the people’. After prolonged research,
deliberations, and consultations with the Union, States, and several experts and stakeholders, the
Commission found the existing constitutional arrangements suitable while emphasising greater
participation of the States in decision making. Two of the major recommendations in this regard, for
example, were on the appointment and role of the Governor and the application of Article 356 in the States.
To facilitate smoother functional relations between the Union and the States, the Commission suggested
only a few minor amendments in a few provisions of the Constitution. Like the Administrative Reforms
107
Commission of 1966–70, which had considered the administrative aspects of the Union–State
relationship, the Sarkaria Commission mostly suggested adjustments in the administrative or functional
relations between the Union and the States so as to ensure maximum e ciency and e ectiveness in the
working of the two levels of the government and the system set in the Constitution.
The Sarkaria Commission Report led to several developments. An Inter-State Council was established to
better coordinate Union–State relations; a third tier of government was introduced; it highlighted the abuse
of regional emergency powers and was relied upon by the Supreme Court in SR Bommai; and so forth. Yet, in
substance, it a rmed the framework and division of powers outlined in the Constitution. In 2007, a second
commission was constituted under Justice MM Punchhi to reconsider India’s federal scheme in light of
political and economic developments since the Sarkaria Commission Report. Its report, submitted in 2010,
o ered several recommendations, on topics ranging from law and order to corruption, but did not propose
108
any radical reformulation of the federal scheme. These e orts at reviewing India’s federal framework
con rm that while there are several important steps to be taken for the better functioning of the federal
scheme, there is acceptance of the broad terms of the scheme and the centralised vision it embodies.

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Notes
1 See eg, State of West Bengal v Union of India AIR 1963 SC 1241; State of Rajasthan v Union of India (1977) 3 SCC 592; State of
Karnataka v Union of India (1977) 4 SCC 608.
2 SR Bommai v Union of India (1994) 3 SCC 1; Kuldip Nayar v Union of India (2006) 7 SCC 1.
3 Constitution of India 1950, art 370.
4 Constitution of India 1950, arts 371, 371-A–J.
5 Madhav Khosla, The Indian Constitution (Oxford University Press 2012) 75.
6 Constitution of India 1950, Part VIII, arts 239–42. For special provisions, see eg, art 239-AA for Delhi and art 239-B for
Puducherry.
7 Constitution of India 1950, Part X, arts 244, 244-A and Fi h and Sixth Schedules.
8 (1973) 4 SCC 225.
9 Dieter Conrad, ʻLimitation of Amendment Procedures and the Constituent Powerʼ (1970) 15–16 Indian Yearbook of
International A airs 375.
10 SR Bommai (n 2); Kuldip Nayar (n 2).
11 Constitution of India 1950, art 40.
12 Constitution of India 1950, Eleventh and Twel h Schedules.
13 For the same view, see Khosla (n 5) 72.
14 See eg, arts 119, 209. See also Mahendra P Singh, ʻLegislative Power in India: Some Clarificationsʼ (1975–76) 4 & 5 Delhi
Law Review 73.
15 A discussion on whether the opening words of art 245(1), ʻSubject to the provisions of the Constitutionʼ constitute a
general limitation on the power of Parliament and State legislatures or only limit their territorial jurisdiction, is not
necessary here. But see Khosla (n 5) 51.
16 GVK Industries Ltd v Income Tax O icer (2011) 4 SCC 36.
17 State of Bombay v RMD Chamarbaugwala AIR 1957 SC 699.
18 Constitution of India 1950, Entry 97 of List I.
19 Constitution of India 1950, art 254.
20 Constitution of India 1950, art 250.
21 Constitution of India 1950, art 253.
22 Constitution of India 1950, art 356.
23 Constitution of India 1950, arts 200, 201, 249, 252, 288(2), 304.
24 Constitution of India 1950, arts 53, 154.
25 Constitution of India 1950, arts 54, 155, 156.
26 Constitution of India 1950, art 73.
27 Constitution of India 1950, art 162.
28 Constitution of India 1950, art 256.
29 Constitution of India 1950, arts 257(2), 257(3).
30 Constitution of India 1950, arts 257(1), 258(1), 258(2), 258A, 353(a), 356(1)(a), 360. See also Jayantilal Amratlal Shodhan v
FN Rana AIR 1964 SC 648; Samsher Singh v State of Punjab (1974) 2 SCC 831.
31 Constitution of India 1950, Chapter IV of Part V, Chapter V of Part VI.
32 Constitution of India 1950, arts 247, 312.
33 Constitution of India 1950, arts 146, 229.
34 Constitution of India 1950, Entries 77 to 79, List I, Seventh Schedule.
35 Entry 11-A, List III, Seventh Schedule.
36 Entry 3, List II, Seventh Schedule.
37 Granville Austin, The Indian Constitution (Oxford University Press 1966) 164; Mahendra P Singh, Securing the Independence
of the Judiciary—The Indian Experience (2000) 10 Indiana International and Comparative Law Review 245.
38 See Constitution of India 1950, art 265, which requires levy and collection of taxes only by authority of law.
39 Constitution of India 1950, arts 266, 267.
40 Constitution of India 1950, art 268.
41 Constitution of India 1950, art 268-A.
42 Constitution of India 1950, art 269.
43 Constitution of India 1950, art 269.

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44 Constitution of India 1950, arts 273, 275.
45 Constitution of India 1950, arts 292, 293.
46 Kesavananda Bharati (n 8).
47 Constitution of India 1950, art 131.
48 Code of Civil Procedure 1908, s 113, Code of Criminal Procedure 1973, s 395. See also Mahendra P Singh, ʻSituating the
Constitution in the District Courtsʼ (2012) 8 Delhi Judicial Academy Journal 47.
49 Special Reference No 1 of 1959 AIR 1960 SC 845; Ram Kishore Sen v Union of India AIR 1966 SC 644. The Court also held that
no territory of a Union Territory can be transferred to a foreign country except by an amendment of the Constitution.
50 Constitution of India 1950, art 4.
51 AIR 1960 SC 51
52 (2009) 12 SCC 248.
53 AIR 1967 SC 944.
54 Mangal Singh (n 53) [7].
55 Mangal Singh (n 53) [8].
56 (2006) 3 SCC 643.
57 Mullaperiyar Environmental Protection Forum (n 56) [21].
58 Mullaperiyar Environmental Protection Forum (n 56) [21].
59 (2011) 13 SCC 344.
60 State of Himachal Pradesh (n 59) [89].
61 State of Himachal Pradesh (n 59) [92].
62 State of Himachal Pradesh (n 59) [93].
63 Kuldip Nayar (n 2).
64 Kuldip Nayar (n 2) [30].
65 Kuldip Nayar (n 2) [70].
66 Kuldip Nayar (n 2) [155].
67 Kuldip Nayar (n 2) [288].
68 Kuldip Nayar (n 2) [287].
69 Kuldip Nayar (n 2) [50]–[51].
70 Constituent Assembly Debates, vol 11 (Lok Sabha Secretariat 1986) 976–77, 25 November 1949.
71 State of West Bengal (n 1).
72 SR Bommai (n 2).
73 Kuldip Nayar (n 2) [63].
74 Kuldip Nayar (n 2) [63].
75 Kuldip Nayar (n 2) [71].
76 Kuldip Nayar (n 2) [88].
77 State of West Bengal (n 1). See also State of Karnataka (n 1).
78 State of West Bengal (n 1) [46].
79 State of West Bengal (n 1) [36].
80 AIR 1963 SC 703.
81 Gujarat University (n 80) [22].
82 (1971) 2 SCC 261.
83 (1971) 2 SCC 779.
84 Harbhajan Singh Dhillon (n 83) [87].
85 Harbhajan Singh Dhillon (n 83) [21].
86 (1979) 4 SCC 232.
87 (1994) 3 SCC 569.
88 Kartar Singh (n 87) [73].
89 (1988) 2 SCC 109.
90 AIR 1954 SC 752.
91 Zaverbhai Amaidas (n 90) [7].
92 (1983) 1 SCC 177.
93 SR Bommai (n 2).
94 SR Bommai (n 2) [100].
95 SR Bommai (n 2) [100].
96 SR Bommai (n 2) [102].
97 SR Bommai (n 2) [101].

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98 SR Bommai (n 2) [169].
99 SR Bommai (n 2) [227].
100 SR Bommai (n 2) [257].
101 SR Bommai (n 2) [330].
102 KC Wheare, Federal Government (2nd edn, Oxford University Press 1951) 33.
103 CH Alexandrowicz, ʻIs India a Federation?ʼ (1954) 3 International and Comparative Law Quarterly 393.
104 Notable in this regard is the State of Tamil Nadu Report of the Centre–State Relations Enquiry Committee 1971 (The
Rajamannar Committee Report).
105 Ministry of Home A airs Notification No IV/11017/1/83-CSR dated 9 June 1983.
106 Ministry of Home A airs Notification (n 105).
107 Administrative Reforms Commission, Report of the Study Team on Centre–State Relationships (Manager of Publications
1968).
108 ʻReport of the Commission on Centre–State Relationsʼ <http://interstatecouncil.nic.in/ccsr_report.html>, accessed
October 2015 .