CONSTITUTIONAL GOVERNANCE

ASSIGNMENT CONCEPT OF FEDERALISM

Federalism is the largest stage in the evolution of man in understanding one another and learning to live together by accommodating anothers point of view without forgetting or compromising his own goal in a peaceful and orderly manner. Federalism is the pointed indicator of the fact that concept avows unity in diversity. The Constitution provides a federal system of government in the country even though it describes India as a Union of States. The term implies that firstly, the Indian federation is not the result of an agreement between independent units, and secondly, the units of Indian federation cannot leave the federation. The Indian Constitution contains both federal and nonfederal features. FEDERAL FEATURES The federal features of the Constitution include: (1) A written constitution which defines the structure, organization and powers of the central as well as state governments (2) A rigid constitution which can be amended only with the consent of the states. (3) An independent judiciary which acts as the guardian of the constitution.

(4) A clear division of powers between the Center and the States through three lists- Union list, State list and Concurrent list. (5) The creation of an Upper House (Rajya Sabha) which gives representation to the states.

For the above reason we mention that the Indian constitution is Federal in nature 1 but Indian Constitution India is often described as a quasi-federal country.

It may be that the Centre has been assigned a larger role than the states but that by itself does not detract from the federal nature and more power is given to the Centre.2 CENTRE STATE RELATIONS Relations between the Union and States can be studied under the following heads:(a) Legislative Relations- The Constitution divides legislative authority between the Union and the States in three lists- the Union List, the State List and the Concurrent List. The Union Parliament has exclusive authority to frame laws on subjects enumerated in the Union list. These include foreign affairs, defense, armed forces, communications, posts and

telegraph, foreign trade etc. The State list consists of subjects on which ordinarily the States alone can make laws. These include public order, police, administration of justice, prison, local governments, agriculture etc. The Concurrent list comprises of items including criminal and civil procedure, marriage and divorce, economic and special planning trade unions, electricity, newspapers, books, education, population control and family planning etc. Both the Parliament and the State legislatures can make laws on subjects given in the Concurrent list, but the Centre has a prior and supreme claim to legislate on current subjects. In case of conflict between the law of the State and Union law on a subject in the Concurrent list, the law of the Parliament prevails. Residuary powers rest with the Union government. Parliament can also legislate on subjects in the State list if the Rajya Sabha passes a resolution by twothird majority that it is necessary to do so in the national interest. During times of emergency, Parliament can make laws on subjects in the State List. Under Article 356 relating to the failure of constitutional machinery in the state, Parliament can take over the legislative authority of the state. Likewise, for the implementation of international treaties or
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V.N.Shukla, Constitution of India, 1969 p.40 M.P.Jain, Indian Constitutional Law, 3rd edn. 1978 p.347

agreements, Parliament can legislate on state subjects. Finally, Parliament can make laws on subjects in the State list if two or more states make a joint request to it to do so. Thus, the Centre enjoys more extensive powers than the states. (b) Administrative relations- The Indian Constitution is based on the principle that the executive power is co-extensive with legislative power, which means that the Union executive/the state executive can deal with all matters on which Parliament/state legislature can legislate. The executive power over subjects in the Concurrent list is also exercised by the states unless the Union government decides to do so. The Centre can issue directives to the state to ensure compliance with the laws made by Parliament for construction and maintenance of the means of communications declared to be of national or military importance, on the measures to be adopted for protection of the railways, for the welfare of the scheduled tribes and for providing facilities for instruction in mother tongue at primary stage to linguistic minorities. The Centre acquires control over states through All India Services, grants- in- aid and the fact that the Parliament can alone adjudicate in inter- state river disputes. During a proclamation of national emergency as well as emergency due to the failure of constitutional machinery in a state the Union government assumes all the executive powers of the state. (c) Financial Relations Both the Union government and the states have been provided with independent sources of revenue by the Constitution. Parliament can levy taxes on the subjects included in the Union list. The states can levy taxes on the subjects in the state list. Ordinarily, there are no taxes on the subjects in the Concurrent List. In the financial sphere also the States are greatly dependent on the Centre for finances. The Centre can exercise control over state finances through the Comptroller and Auditor General of India and grants. but during financial emergency the President has the power to suspend the provision regarding division of taxes between the centre and the states.

FINANCE COMMISSION One of the instruments which the Constitution has evolved for the purpose of distributing financial resources between the Centre and the states is the Finance Commission. The Finance Commission according to Article 280 of the Constitution is constituted by the President once every five year and is a high- power body. The duty of the Commission is to make recommendations to the President as to: (a) the distribution between the union and the states of the net proceeds of the taxes which are to be divided between them and the allocation between the states themselves of the respective share of such proceeds; (b) the principles which should govern the grants-in-aid of the revenues amongst the states out of the Consolidated Fund of India. CO- OPERATIVE FEDERALISM The Indian Constitution provides for a number of mechanisms to promote co-operative federalism. Article 263 empowers the President to establish Inter-State Council to promote better co-ordination between the Centre and States. Inter -State Council was formally constituted in 1990. It is headed by the Prime Minister and includes six Cabinet ministers of the Union and Chief Ministers of all the states and union territories. Zonal Councils were set up under the State Re-organization Act, 1956, to ensure greater cooperation amongst states in the field of planning and other matters of national importance. The act divided the country into six zones and provided a Zonal Council in each zone. Each council consists of the Chief Minister and two other ministers of each of the states in the zone and the administrator in the case of the union territory. The Union Home Minister has been nominated to be the common chairman of all the zonal councils. POST KESAVANANDA VERDICT: The matter of the Doctrine of basic Structure again came up in the Supreme Court in Indira

Nehru Gandhi v. Raj Narain3.In this case for the 1st time a constitutional amendment was challenged not in respect of rights of property or social welfare but with reference to an electoral law designed to ensure freeand fair elections which lie at the basis of a democratic parliamentary form of government.4 Here the 39thConstitutional Amendment was challenged. Counsel for Raj Narain, the political opponent challenging Mrs. Gandhi's election, argued that the amendment was against the basic structure of the Constitution as it affected the conduct of free and fair elections and the power of judicial review. Counsel also argued that Parliament was not competent to use its constituent power for validating an election that was declared void by the High Court. Four out of five judges on the bench upheld the Thirty-ninth amendment, but only after striking down that part which sought to curb the power of the judiciary to adjudicate in the current election dispute. One judge, Beg, J. upheld the amendment in its entirety. Mrs. Gandhi's election was declared valid on the basis of the amended election laws. The judges grudgingly accepted Parliament's power to pass laws that have a retrospective effect.5 THE KESAVANANDA VERDICT: The Supreme Court declared in Kesavananda Bharati v. State of Kerala6 that Article 368 did not enable the Parliament to alter the basic structure of framework of the constitution. The judgment was ground shattering. It was a revolutionary step in the history of Constitutional Law. Subsequently, the Supreme Court of Bangladesh adopted the doctrine of basic structure relying on Kesavanada Bharati case. In Pakistan the Lahore High Court and the Baluchistan High Court took the same view but not the Supreme Court. The judgment also had an

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Indira Nehru Gandhi v. Raj Narain, AIR 1975 SCC 2299 Bhatia, K. Sukhcharan, Jurisprudence of Amending Process under Indian Constitution, Deep & Deep publications, Delhi, 1989 pg 208 5 Golak Nath v.State of Punjab, (1967) 2 SCR 762: AIR 1967 SC 6 Kesavananda Bharati v. State of Kerala, AIR 1973SC 1461

effecton the Nepal Constitution.7 For the first time, the Doctrine of Basic Structure was specifically mentioned in this case. The validity of the 24th and the 25th amendment was challenged in this case and the matter was heard by a bench of 13 judges. And the Court held that Our Constitution is not a mere political document. It is essentially a social document. It is based on a social philosophy and every social philospphy like every religion has two main features, namely, basic and circumstantial. The former remains constant but the latter is subject to change. The core of a religion always remains constant but the practices associated with it may change. Likewise, a constitution like ours contains certain features which are so essential that they cannot be changed or destroyed.8 CONCLUSION Dr. B.R. Ambedkar, one of the chief-architects of the Indian Const-said: Our constitution would be both Unitary as well as Federal according to the requirements of time & circumstances.In historical as well as present context, the above statement is fully correct because: federalism is not static but a dynamic concept it is always in the process of evolution & constant adjustments from time to time in the light of the contemporary needs the demands being made on it. Constant discussions & negotiations between the centre & the states in various for a can help in removing frictions & difficulties in the area of inter government cooperation. For making Indian Federalism more robust & viable system the differences between the centre & the state must be sort out so that India may successfully meet the great-challenges of difference, external & internal security & socio-economic development. At lost, it is very necessary that neither the federal set-up becomes unitary not that it becomes too lose & weak affecting the unitary & integrity of the nation.
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Supra Note 6 Supra Note 6