JAMIA MILLIA ISLAMIA

Constitutional Law -I
Nature of Federalism in India

Submitted to :- Dr. Asad Malik

Submitted by :- Mohammad Javed Malik

3rd Semester, B.A.,LL.B(Hons.)

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 Acknowledgement

Before I start off on this endeavor that has been given to me as the torts project in
the second semester of this joyful ride that I have undertaken under the flagship of
The Faculty of Law, Jamia Millia Islamia, I would like to thank everybody who
has been instrumental in my successful completion of my projects.

First, I would like to acknowledge the immense contribution that my professor of

constitutional law ,DR. ASAD MALIK SIR has had on this project. By creating
the basic framework of the subject in my mind through his excellent lectures he
also contributed in the creation of the basic framework and limitations of my topic
in my mind.

Next, it would be my duty to thank the excellent library staff in the Faculty of Law,
Jamia Millia Islamia for their never ending readiness to help anyone in finding
exact readings for any such subject that he/she is researching.

Lastly, I would like to thank my classmates who never backed off when I needed
them to clarify any concept that I couldn’t catch during the process of the class.

- Mohammad Javed Malik

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 INDEX

 Introduction...............................................................................................4
 Necessity of federalism.............................................................................7
 Components of federal constitution..........................................................8
 Residuary power of legislation.................................................................16
 Emergency Provisions..............................................................................17
 Effect of emergency provisions on federalism.........................................18
 Judicial Interpretation of federation.........................................................18
 Rajamannar Commission..........................................................................21
 Sarkaria Commission................................................................................22
 Recent Developments in India- Federalism..............................................23
1. Cooperative Federalism..................................................................24
2. Organic Federalism.........................................................................24
 Features of Indian Federalism...................................................................25
 Unitary Features of India...........................................................................27
 Genuine Federalism...................................................................................28
 Conclusion.................................................................................................31
 Bibliography..............................................................................................32

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 Introduction:

The present Constitution of India was brought into force on January 26, 1950. It is
a prolix and detailed document containing 395 articles and 9 schedules. It ushers
into the country a polity based fundamentally on two ingredients - a British type
democratic system of government and federal- ism. India, says the Constitution, is
to be a Union of States. India has a Central Government and 17 State Government)
At both levels, parliamentary form of government based on adult suffrage operates.
The Constitution makes elaborate provisions covering many aspects of Centre-
State and interstate relationship, and in this respect it differs from the constitutions
of the U.S.A., Canada and Australia which contain only skeletal pro- visions to
regulate intergovernmental relationship. Since its inception, the Indian Federalism
bas been called upon to meet many challenges. To improve the material well-being
of the people, the country has embarked on comprehensive socio-economic
planning pervading all aspects of national life, such as industry, agriculture, land
reforms, population control, exploitation of natural resources and provision of such
social services as education, health, housing, etc., and this has necessitated a
complete mobilisation of the country& resources. Then, India has faced
complications on its borders because of the bellicose attitude of some of its
neighbour and there have been strains within the body politic itself resulting from
internal developments, Mainly because of the language problem. These various
forces and compulsions have shaped and mouldedIn- than Federalism. Further,
India has witnessed the significant political phenomenon of one political party - the
Indian National Congress - completely dominating the scene since 1947 when it
controlled the Central and all State Governments. This smoothed and facilitated the
-working of federalism in its formative period. It stabilized the political and
administrative structure of the country, minimised tensions between various
governments as all owed allegiance to one party, and helped in resolving many
questions informally at party forums. But this situation has undergone a change
recently. The fourth general elections held in early 1967 have broken the one party
dominance, or the Congress monolith, and various Political parties have assumed
control of various governments. With this development, an era may be said to have
ended in the career of Indian Federalism, and a new, perhaps a more challenging
one, initiated. The new political situation, is bound to release new forces which
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may have a profound impact on it. As one can easily foresee, disputes among the
various governments of various political complexion are bound to arise, and much
that has come to be accepted till now in the area of federalism would perhaps be
challenged and some new trends initiated. This paper makes an attempt to survey
some of the facets of the growth of Indian Federalism and to identify some of the
problem areas which may call for new reasoned solutions in the new con-text.

The constitution of India is not an end, but a means to an end, not mere
democracy as a political-project but a socio-juridical process which opens up
through a humanist, radical social-order, the opportunity to unfold the full
personhood of every citizen.

The constitution of India in which the Union of India is permanent &

indestructible.

Both the Centre & the states are co-operating & coordinating institutions having
independence & ought to exercise their respective powers with having
independence and mutual-adjustment, respect, understanding & accommodation.
Tension & conflict of the interests of the centre& the respecting units is an
integral-part of Federation. Prevention as well as amelioration of conflicts is
necessary. Thus, the Indian-federation was devised with a strong-centre.
Federalism with a strong centre was inevitable as the framers of the Indian-
constitution were aware that there was economic-disparities as several-areas of
India were economically as well as industrially for behind in comparison to others.
The Nation was committed to a socio-economic revolution not only to secure the
basic-needs of the common-man & economic units of the country but also to bring
about a fundamental-change in the structure of Indian-society in accordance with
the egalitarian-principles.

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Meaning

The term ‘Federalism’ originate From the Latin word “Foedus” meaning ‘treaty’ or
‘covenant’. Some free states bound together by agreement constitute a Federal-
state.

Federalism is a system of government of a country under which there exist

simultaneously a federal or central government (legislature & executive) & several
state legislatures & government as contrasted with a unitary state both federal &
state governments drive their powers from the federal-const., both are supreme in
particular sphere & both operate directly on the people.

Definition

Federation is a political-concept in which a group of members are bound together

by ‘covenant’ with a governing representative head.

A system of National-government in which power is divided between a central

authority & a number of regions which delimited self-governing authority.

A system of governance in which distribution of power of constituent-units is

ensured by a written-constitution, having independent judiciary to resolve, state of
local-levels. Under the principal of government, power & authority is allocated
between the national & local-government units, such that each unit is delegated a
sphere of power & authority only it can exercise while other powers must be
shared.

Constitutional-Intent

Being aware that notwithstanding a common cultural heritage, without political

unity, the country would disintegrate under the pressure of Fissiparous forces, the
constituent Assembly addressed itself to the immensely complex-task of devising a
union with a strong centre. In devising the pattern of the central –state relations
they were influenced by the constitution of Canada & Australia which have a
parliamentary-form of government. The Government of India act, 1935 was also

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relied upon significant changes. The constitution cannot be called ‘Federal’ or
‘Unitary’ in the ideal-sense of the terms.

According to Article 1 of the Constitution:

“India, i.e. Bharat will be the Union of States”.

The Constitution, thus postulated India as a union of states & the consequently,
the existence of Federal-structure of governance for this union of states becomes a
basic structure of the union of India.

Dr. B.R. Ambedkar, the principal-architect of the constitution observed

‘the use of the word union is celibate. The Drafting committed wanted to make it
clear that though India was to be a federation, the federation was not a result of
agreement by the states to join in the federation & the federation not being the
result of an agreement no state has a right to secede from it. Though the country &
the people may be divided into different states for convenience of administration
the whole country is one integral whole, its people a single people living under a
single imperium derived from a single –source’.

Necessity of Federalism:

(i) Emergence of different-set of states:

Before independence, the earliest from of political-organization was not federal

but unitary. But after independence, the pressure of economic, political & social-
circumstances which compelled unitary-states (generally Monarchical) to enter
into alliance with other states for meeting common problems which initially related
to ‘defence’. Require a special-type of government which leads to federalism.

(ii) Scientific-development:

Scientific & technological-developments & increased economic interdependence

have changed the scenario of the past, which brought the emerging –states
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(independent) on the same- platform. The exchange of Scientific-technologies
between the development of these states. Scientific & technological-development
brought a revolution during the era of federalism.

(iii) End of British-Colonies:

In India, the historical-process to create the federal-system was different. For

long, before 1935, British India has been administered on a unitary basis. There
existed a unitary-system. But after the end of British-colonies, the unitary system
was replaced by a federal-system. The present federal-system was built on the
foundation of the 1935 system.

The past history of India establishes that in the absence of a strong Central-
Government. the country soon disintegrates. This belief was strengthened by the
recent-portion of the country. Therefore adequate precautions have to be taken
against any such future contingency by making the centre strong in Indian-
Federalism.

Owing to its vastness of territory & variety of people, India could not be governed
efficiently as a unitary-state & so a unitary constitution was out of question.

India, such a large country with diverse-cultures, religions, languages, tribal &
ethnic differences & even marginal racial variations, with historical, geographical
& political-divergences, cannot bear true faith with democracy & collective
freedom without authentic Federal Features.

Components of a Federal –Constitution:

The legal-test of federalism, when analyzed, leads to the following broad features
of a federal-constitution.

(i) Distribution of powers (Dual-polity):-

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 An essential feature of every federal-constitution is the distribution of powers
between the central-government & the governments of the several-units forming
the federations.

Federation means the distribution of the power of the state among a number of
coordinate bodies, each originating in and controlled by the constitution. (Dicey)

(ii) Written-Constitution:

A federal-state derives its existence from the constitution, just as a corporation

derives its existence from the grant or statute by which it is created. Every power
(executive, legislature or judicial) whether it belongs to the central, or to the
component-states, is subordinated to & controlled by the constitution. Therefore, a
federal-state requires a written-constitution for the obvious reason that in order to
be workable & stable & the limitations, must be precisely defined by written-
instrument. Hence, it will be practically impossible to maintain the supremacy of
the constitution, unless the terms of the constitution have been reduced into
writing.

(iii) Supremacy of the Constitution:

This means that the constitution should be binding on the federal & state-
government. Neither of the two governments should be in a position to override the
provisions of the constitution relating to the power and status which each is to
enjoy.

This requirement is satisfied if the supremacy or overriding authority is accorded

only to the provisions relating to the division of power.

According to K.C. Wheare:

“The Supreme –Const. is essential if government is to be federal the written-const.

is essential if federal-government. is the work well”

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(iv) Rigidity of the Constitution: - (Non unilateral change)

A natural corollary of a written-constitution is its rigidity. A constitution which is

the supreme-law of the land must also be rigid. In a rigid constitution, the
procedure of amendment is very complicated & difficult. This does not mean that
the constitution should be legally unalterable. The constitution provides a process
for changing its provisions called “Amendment’. It simply means that the
procedure of amending the constitution should not remain exclusively with either
the centre or state-Governments means “No Unilateral-change”.

(v) Authority of the courts (Interpretation by Judiciary) :

The distribution of powers made by the constitution must be guarded by the

judiciary. Which is to interpret the constitution as the ‘Fundamental-law’ of the
lands to enforce its provisions against both the federal and Regional-governments
and to invalidate any of their acts which transgresses the limitations imposed upon
them by the constitution.

The constitution of India appears to have all the above mentioned essential-features
of the federal-constitution. The most important feature of a federal-constitution is
the distribution of legislative power between the centre& the states.

The Constitution of India has adopted the scheme of the Government. of India-Act
1935 with minor changes.

Distinctive Federation

The federal polity, which our constitution establishes, contains, as compared with
other federal-constitutions, several distinctive features. These are:

(1) No Dual citizenship:

The constitution of the USA allows dual citizenship-the citizenship of the USA &
the citizenship of the state in which he is domiciled as opposed to this, the Indian-
constitution does not provide dual citizenship. There is a dual-polity with single-
citizenship. There is only one citizenship for the country. There is no state

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citizenship. Every Indian has the same rights of citizenship, no matter in which
state he resides.

(2) Single-Constitution:

The state in USA has the right to make their own constitution. In India no such
power is given to the units. The constitution of the Unions of the states is a single-
from fro which neither can get out & within which they must work.

(3) In emergencies the constitution can become Unitary:

In normal times, the const. is framed to work as a federal-system but it times of

war & other national –emergencies it is designed to work as if it were unitary.

Dr. B.R. Ambedkar says:

‘The Draft Constitution can be both unitary as well as Federal according to the
requirements of time & circumstances’.

(4) Minimizes Rigidity & Legalism:

Federation is said to be a weak form of government. Two reasons are described for
the weakness of a federal-government, namely Rigidity & Legalism. A federal-
const. is necessarily a written const. & a written-const. is invariably a rigid const. It
cannot be changed by ordinary-process.

Legalism in a federal const. means the necessary predominance given to the

judiciary in making it the arbiter of the validity of the laws enacted by the federal
or state-legislature.

The Indian Constitution makes provisions to minimize Rigidity & Legalism in it.
The process for the amendment of the constitution is less rigid that what is found in
other federal-constitutions except that the basic –feature of the constitution become
unamenable. Out constitution provides a long–list of Concurrent-subjects. Power is

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given to parliament to legislate on exclusively state subjects under certain
circumstances.

(i) When a subject in the List becomes a matter of ‘National-importance.

(ii) When the president has proclaimed an emergency.

(iii) If the state consent to such exercise of power by Parliament &

(iv) When it becomes necessary to give effect to ‘International-agreement.

(5) It maintains unity in basic-matters: -

The Indian-constitution adopts the following three means to maintain

administrative & legislative unity:

A single-Judiciary.

Uniformity in fundamental-laws, civil & criminal &common all India services.

Common All India services.

In our constitution, the High court & supreme-court from a single integrated
judiciary having jurisdiction over all cases arising under various laws-union state,
constitutional, civil & criminal. To eliminate diversity of laws, codes of civil &
criminal laws are placed in concurrent list.

To maintain uniformity in administration, the constitution provides that there shall

be All India services, including Judicial-services recruited on an All India basis
which shall be common to Union & States. The members of these services shall be
placed in key-posts of the Union & states.

(6) State & Union not rivals:

Our constitution does not set-up the states as rivals to one another or to the union.
Each is intended to work harmoniously in its own-sphere without disturbing by

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other, with an over-riding power of the Union, when it is necessary in the public-
interest.

Indian-Experience:

In the following constitutional –provisions, it is pointed-out, that the Indian-

Constitution contains the modifications of the federal principle:

(i) Parliament power to form New-States & alter boundaries of existing states:
(Art 2&3)

Art.2: gives complete discretion to parliament to ‘admit’ or ‘establish’ new-states

on suck terms & conditions as it thinks fit. Such terms & conditions must,
however, be consistent with the foundational-principles viz, the basic-structue of
the constitution.

Art.3: Provide that, “parliament can by unilateral-action increase or diminish the

area of any state or alter the boundaries of any state or alter the name of any state.”

The very existence of the State thus depends upon the “Sweet-will of the Union
Government.

The power conferred on the Union-parliament to make territorial-adjustments is

better explained on historical-basis:

The Government.of India Act, 1935, which had for the first-time introduced the
federal-system in India deliberately created the constituent-units of the federation,
although they had no organic-roots in the past. The makers of the present
constitution were aware of peculiar-condition under which & the reasons for which
the states were formed & their boundaries were defined & so they deliberately
adopted the provisions in Art. 3 with a view to meeting the possibility of the
redistribution of the states territory after the integration of the Indian-States.

The changes thus contemplated (work-our) illustrate the working of the peculiar &
striking feature of the Indian-Constitution.

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(ii) Parliament’s-power to make law on State-matters:

Art 249:Provides that, “if the upper House (Council of states) of the Union-
parliament passes a resolution, supported by not less than 2/3 rd of the members
present & voting, that it is necessary in the ‘National-Interest’ that parliament
should make laws with respect to any matter enumerated in the state-list, it would
be competent for parliament to make laws for the states with respect to that matter
to be operative for such period not exceeding 1 year, as may be specified therein.

In normal-course this cannot be done unless the Constitution is amended.

This power is given to parliament by the council of states itself by passing a

resolution supported by 2/3rd majority of the members present. Thus, in effect by
this device the constitution is amended by the agreement of majority of the states.

Thus Art. 249 does not place the states in a subordinate-position .

Art 250: Provides that, “parliament shall have the power to make laws for the
whole or any part of the territory of India with respect to any matters enumerated
in the state-list when the proclamation of emergency is in operation.”

Art 251: Provides that Parliament have the power to make laws on State-matters
under the Art 249 (in national-interest) & Art 250 (under Proclamation of
emergency). In both cases the power of the state legislature to deal with matters
falling in the state list is not abrogated. The Legislature of a state can thus make a
law on those matters which has been taken over by the Union-Legislature.

But in case of a conflict or inconsistency between a Union & a State-law, the

former will prevail.

Art. 253: Provides that” parliament has power to make any law for the whole or
any part of the territory of India for implementing any treaty, agreement or
convention with any other country or countries or any decision made at any
international conference.”

Ex: Legislations relating to T.R.I.P.S., ensuring India’s conformity with WTO

membership, are being enacted under this provision.

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 Questions are also being raised about the legal-tradition in our country under
which treaties become operative & binding without prior participation of
parliament in their making. They can be entered into & implemented by the Union
executive in exercise of its executive power under Art. 73

(iii) Administrative-relations between the Union &States :

The Union Government is empowered to issue administrative-directions to the

states in relation to certain matters, these directions are binding on the states:

Art: 256: Provides that, it shall be the duty of the state to exercise its executive-
powers so as to ensure that due-effect is given with in state to every Act of
Parliament & to every existing law which apply in the state. This is a
constitutional-duty of every state. The Govern of India is entitled to given
directions to the state-government regarding the duly which is imposed upon it by
this article.

Art 257: Provides the control of the Union over state in certain cases:

(a) The manner in which the executive-powers of the state shall be exercise so as
not to impede or abridge the executive-powers of the Union.

(b) The construction & maintenance of means of communication, declared to be

of national or military-importance; &

(c) Measures to be taken for the protection of Railways within the start.

The authority given to the centre to enforce its administrative-directions against a

state which fails to comply with them is indented to “ensure-harmony” btw the
Union & the state. If a state exercises its executive authority as to impede or
obstructs the execution of Union-laws or services, that states exhibits a revolt
against the central government & hence to “maintain the integrity of the country”.
It is right that the Union has been empowered to intervene.

(iv) Distribution of Legislative-power between the Union & the states (Article
246)
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The Constitution in making the distribution of legislative-powers that the union &
the states, follows the government.of India 1935. It enumerates various items of
legislation in three-lists given in 7th Schedule:

List I The Union List

List II The State List

List III The Concurrent List

The parliament has exclusive powers of legislation with respect to 97 items in List
I. The State Legislatures have exclusive-powers with respect to 66 items in List II
Both Parliament & state Legislatures can make laws in respect to 47 items in List
III.

Residuary powers of Legislation : (ARTICLE 248)

Parliament has exclusive power to make any law with respect to any matter not
enumerated in the concurrent. List or State-List. Such power shall include the
power of making any law imposing a tax not mentioned in either of those lists.

This Art. Assigns “Residuary-powers” of legislation exclusively to parliament

Entry 97 of List I, Schedule VII to the constitution read with art. 246(i) also lays
down that parliament has exclusive-power to make laws with respect to any mater
not given in List II or List III, including any tax not mentioned in either of those
lists.

Complex modern governmental-administration, with the advancement of society,

expanding horizons of scientific & technical-language, in a federal-set up
providing for distribution of legislative-powers coupled with the power of judicial-
review may raise such situations that a subject of legislation may not squarely fall
in any specific-entry in three list.

In such a situation parliament would have power to legislate on the subject in the
exercise of residuary-powers under this Article &Under Article 246 (1) read with
Entry of List I.

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 Emergency-provisions

Art. 352 : Provides that “if the president is satisfied that a gave emergency exists
where by the security of India or any part of the territory is threatened, weather by
‘Wan’ or ‘external’ aggression or ‘armed-rebellion, he by proclamation, make a
declaration to that effect.

When the proclamation of emergency is made under Ar. 352, the normal
distribution of power between the centre& the states undergo a vital-change.

Parliament is empowered to make laws with respect to any matter enumerated in

the state-List.

The centre is empowered to give directions to any state as to manner in which the
state’s executive power to be exercised.

Further, the president may be order, direct that all or any of the provisions of
Article 278 to 279 relating to distribution of revenue between the centre& the state
shall take effect with such exception or modifications as he thinks fit.

Art 356: Provides that, “ if the president, who is the head of the Union-executive
is satisfied that the Government. of a State cannot be carried on in accordance with
the provisions of the constitution he can issue a Proclamation to that effect. He can
then assume all the functions of the government of the state, including the powers
of the Governor.”

The only exception is that he cannot assume any of the powers exercisable by
the High Court.

Art 360: Provides that, “if the President is satisfied that a situation has arisen which
threatens the ‘Financial stability’ or credit of India or any of its units, he can
declare a Financial-emergency. In such an event the can issue necessary directions,
including order for the reduction of salaries & Allowances of public-servants
belonging to union & the states. All Money-bills passed by the state-legislatures
during the period of financial-emergency are also subject to the control of the
centre.

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 Effect of Emergency-provisions on Federalism:

The emergency-provisions which come into operation only on the happening of the
‘specific-contingencies’ do not modify or destroy the federal system. It is rather a
merit of the constitution that it visualizes the contingencies when the strict
application of the Federal-principle might destroy the basic assumptions on which
our constitution is built.

The Indian constitution by adapting itself to the changed circumstances strengthens

the Government in its Endeavour to overcome the crisis.

In an emergency, the behavior of each federal-constitution is very much different

from that in peace time.

For example in Swiss Constitution, which is a federal Constitution expressly

empowers the federal government to intervene on its own initiatives if the external-
disorder might occur which endanger the safety of the nation.

In USA, Australia & Canada do not expressly provide for enlargement of federal
power during the period of emergency, but during the two world-wars, the defense
power of the Federal Government was given so extension as interpretation by the
courts, that these countries behaved more likely unitary than federal-state.

Thus every constitution implies devices for its own-survival.

Judicial Interpretation of Federation

State of West Bengal v. Union of India, (1964)1SCR 371

The debate whether India has a ‘federal-constitution’ ‘Federal-Government’ was

discussed at length by the apex-court in West-Bengal v/s union of India.

The main issue involved in this case was the exercise of sovereign-powers by the
Indian states. The legislative-competence of the parliament to enact a law for
compulsory-acquisition by the union of Land & other properties owned by the state
& the sovereign-authority of states as distinct-entities was also examined.

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The Supreme Court held that the:

“Indian- Constitution did not propound a principle of Absolute-Federalism”.

Though the authority was decentralized this was mainly due to the arduous-task of
governing the large-territory.

The Court outlined the characteristics, which highlighted the fact that the Indian-
constitution is not a “traditional-federal constitution.”

Firstly, there is no separate-constitution for each state as is required in a federal-

state.

Secondly, the constitution is liable to be attend by the union parliament alone & the
units of the country i.e. the states have no power to alter it.

Thirdly the distribution of powers is to facilitate local-governance by the States &

National policies to be declared by the Centre.

Lastly, which contains internal checks & balances, the Indian constitution renders
supreme power upon the courts to invalidate any action violative of the
constitution.

The Supreme Court Further held that both the legislative & the executive-power of
the states are subject to the respective supreme-power of the Union. Legal
sovereignty of the Indian nation is vested in the people of India. The political-
sovereignty is distributed between the Union & the states with greater weightage in
favour of the Union.

Thus, the learned Judges concluded that the structure of the Indian-Union as
provided by the constitution one is centralized, with states occupying a secondary-
position. Hence the centre possessed the requisite-powers to acquire properties
belonging to states.

On the other hand, Justice Subba Rao, the great champion of state-rights expressed
his minority view has consistency with the federal-scheme under the Indian-
constitution. The Indian Constitution accepts the federal-concept & distributes the
sovereign-powers btw the union & the states.

State of Rajasthan v. Union of India AIR 1977 SC 1361

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The next landmark case where the nature of the Indian-constitution was discussed
at length. In this case, the learned Judges state that even if it is possible to see a
federal structure behind the establishment of separate executive, legislative &
judicial-organization in the states, it is apparent from the provision illustrated in
Article 35 that the Union Government is entitled to enforce its own-views
regarding the administration & granting of power in the states.

The extent of federalism of the Indian-union is largely waterned down by the needs
of progress development & making the ratio integrated, politically & economically
coordinated & socially & spiritually uplifted.

In conclusion, the Apex-court held that it was the right of the Union parliament to
issue directives if they were for the benefit of the people of the state & were aimed
at achieving the objectives set out in the preamble.

State of Karnataka v. Union of India(1978)11SCJ 190

The Supreme Court held that, “our constitution has, despite whatever federalism
may be found in its structure, so strongly unitary-features also in it.

Kesavananda Bharti v. State of Kerala AIR (1973) SC 1461

The basic structure thesis case, some of the Judges in full Constitutional Bench
expressed federalism as one of the basic-structure of constitution.

S.R. Bommai v. Union of India 1994 SCC 1

Four opinions were given, expressing varying views:

Justice Ahmadi: opined that "in order to understand the true-nature of the Indian-
constitution, it is essential to comprehend the concept of federation. The essence of
the federation is the existence of the union & the states & the distribution of power
between them."

The significant absence of expressions like ‘federal’ or ‘federation’ in the

constitution, the powers of the parliament under Articles 2&3 in the constitution

20
powers conferred to meet emergency-situations, residuary powers, powers to issue
directions to the state, concept of single-citizenship & the system of integrated
judiciary all these provisions create doubts about the federal-nature of Indian const.
Thus, it would be more appropriate to describe the const. as Quasi-Federable or
Unitary rather than federal-const in the true nature of the term.

Justice Sawant & Kuldip Singh: gave opposite view

"They two regarded “Democracy & Federalism as essential features of the

Indian constitution. The overriding powers of the centre in the event of -----
emergency do not destroy the federal-character of the Indian-constitution. They
aid, “every state is constituent political unit & have an exclusive Executive &
Legislative elected & Constituted by the same process as the Union Government.
The judges justified the use of power of president (Art 35)."

Justice Ramaswamy opined that:

"The units of the federation had no roots in the past & hence the constitution does
not provide mechanisms to uphold the territorial integrity of the state above the
powers of the parliament. He declared the Indian constitution as “Organic-
federalism”, designed to suit the parliamentary from of government the diverse
conditions prevailing in India."

Justice Jeevan Reddy & Agarwal opined that:

"The expression Federal or Federal-Form of government has no fixed meaning

the constitution is also ‘distinct’ in character, a federation with a bias in favour of
the centre. But his Factor does not reduce the states to within the sphere allotted to
them the states are supreme."

Rajamannar Commission

In 1969, the Government.of Tamil Nadu, dissatisfied with the constitution,

appointed a Rajamannar Committee, “to examine the entire question regarding the
relationship btw the centre& the states in federal set up, with reference to the
provisions of the constitution of India & to suggest suitable amendments to the
constitution so as to secure to the states the utmost autonomy”
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 The committee in its report issued in 1971 criticized certain aspects of the
Indian-constitution because they were not reconcilable.

The Committee accepted the position that the power vested in the centre “does
not reduce the states of the state to that of administrative-units in a unitary
government as in the days of the British role.

The committee suggested some modifications in the constitutional-provisions

relating to the distribution of legislative & taxing powers emergency etc.

The proposals made by Rajamannar Committee suffer from an extreme over-

statement of the case for the state-autonomy.

These proposals did not evoke much public-enthusiasm & were endorsed neither
by any state-government nor by any All India political party & the report became a
dead-letter.

Sarkaria-Commission

In 1983, in response to an insistent demand to review the Central-State relations,

the central government appointed the Sarkaria Commission under the chairmanship
of Justice R.S. Sarkaria, a retired Judge of a Supreme Court. The limitations on the
commissions-term of inquiry was that, in making its recommendations, the
commission was expected to ensure that they were within the constitutional-
provisions which safeguard the independence, unit& integrity of the country.

The commission presented its report in 1988.

It has rejected the demand for curtaining the powers of the centre saying that a
strong centre is necessary to preserve the unity & integrity of the country.

The commission’s view is that there is no need for drastic changes in the
existing-provisions of the constitution.

It its view the fundamental-provisions of the constitution have done reasonably

well &with stood the stresses & strains of heterogeneous society in throes of
change.

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 Recent developments in Indian-Federalism

1. Firstly, the 73rd & 74th amendments of the Constitution in 1992 have created
a third-tier of local-governments i.e. the panchayats & Municipalities of course
these amendments have no impact on central state relations but they encourage
federal-tendencies at the base.

2. With reference to Article 356, the Supreme Court in S.R. Bommain versus
union of India emphasized the federal-character of the constitution & has imposed
several procedural restraints on the exercise of power by the centre under the Art.

3. In quick succession, once in 1987 & again in 1998, the president has asked the
central-Cabinet to reconsider its advice to impose. Presidents role under Article
356. On both occasions the cabinet dropped its recommendations. The Union-
Government has become very cautious in exercising its power under Article 356.
For quite some-time now the power has not at all been exercises.

4. With the installation of “Coalition-Government “ at the centre since 1996

consisting of political parties ruling in different stats, the central government has
always to seek the cooperation of the states.

This has changed the real-politics of the country which is not moving towards a
federal-government even through the constitution may not be federal in the
classical-description of K.C. wheare.

5. A centre state commission has again been constituted in 2007 which is to look
into the developments since the last commission, arising particularly in the light of
globalization.

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 Co-operative Federalism & Organic Federalism

Where the units or states & the federation do not compete for power but co-operate
through various instrumentalities to promote the common purpose is known as
cooperative-federalism. The present stage in India can be described as ‘Organic-
Federalism, where the federations the units function as a part of one organism to
achieve the common-governmental purposes. The lessons to be learnt form the
recent-developments & the pressure of Circumstances that developed together with
the large-scale interdependence of the states in many matters, had really indicated a
case for organic-federalism. There are strong organic-Filaments-constitutional,
financial & administrative, which may be relied upon to uphold the unit of India.

For example: Several industrial establishments are financed & managed by the
Union Government, but are operating within the territories of the unit-states; &
various nation wide agricultural-operations in the matters of improving technology,
seeds etc.

Comparative Study of Federalism

The U.S.A Constitution has been regarded as the ‘epitome’ of the classic
federalism. America started on its Federal carrier with a weak-centre& emphasis
on State’s rights. The reason was that the U.S constitution came into being as a
result of a voluntary compact among the pre-existing states which conceded rather
limited-powers to the Centre. A similar process occurred in Australia.

Also, the US- constitution was the product of the “laissez-Faire” era which
signified ‘minimum-government’ & ‘maximum-private’ enterprises.

In course of time, however things have changed. The powers of the centre have
expanded since 1787 & correspondingly the powers of the states have shrunk.

This has been achieved without any explicit-amendment of the const. but through
ingenious legislative devices & also through judicial Activism.

Now in present context, the stats in the U.S.A are co-ordinate with the central
government. as there definitely-weaker vis-à-vis the centre. The process has been
aided by such factors as tense international situations, wars, vat economic &
technological-developments, replacement of laissez faire by the social-welfare etc.

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 The Indian-federalism was not a result of a compact between several sovereign-
units but a result of “Conversion of a unitary system into a federal-system”. Here
the movement has been from unity to union. From unitarism to federalism, unlike
other countries where the process has been for separate-units to come together to
from the federal-union In India, it was rather the reverse process viz. “to convert a
unitary constitution into a federal-constitution.

FEATURES OF THE INDIAN FEDERALISM

India is a big country characterized by cultural, regional, linguistic and

geographical diversities. Such a diverse and vast country cannot be administered
and ruled from a single centre. Historically, though India was not a federal state, its
various regions enjoyed adequate autonomy from central rule. Keeping in view
these factors in mind, the Constitution makers of India opted for the federal form
of government. Though, the Government of India Act,. 1935 envisaged a federal
set-up for India; federal provisions of the Act were not enforced. Thus, India
became a federal polity when the Constitution of India. Federalism as a form of
government was, for the first time, put into practice in the United States way back
in 1789. It was a result of the prevailing situation that time in the United States of
America. Subsequently, it was followed in other countries of the world as a
political choice. As the practice of federalism became prevalent in many parts of
the world, its theoretical aspects were elaborated by scholars. J. W. Garner defines
Federal Government as "contra distinguished from a Unitary government, a system
in which the totality of government power is divided and distributed by the
national Constitution or the organic law of Parliament creating it, between a central
government and the governments of individual states or other territorial divisions
which the federation is composed of."

Another noted scholar K. C. Wheare defines it; as "the method of dividing powers
so that the general and regional governments are each within a sphere coordinate
and independent." On the, basis of the above definitions we can infer certain
features of federalism, which are:

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(1) The most important feature of federalism is the division of powers between the
central and state governments by the scheme of the Constitution itself. Both
governments are independent and autonomous in their sphere of powers.

(2) The division, of powers between the two postulates a written constitution. In
federalism the Constitution is also rigid as the federal provisions of the
Constitution cannot be changed without the consent of both the centre and the
states.

(3) Federalism also requires the provision for an independent federal judiciary as
the division oi powers involves the possibility of disputes arising between the
centre and the states or between the units of federation itself.

The Federal Features of Indian constitution-The Constitution of India displays the

following federal features:

• (a) The Constitution of India makes the provision for the organization of two
types of governments-the Union Government and the State Governments. The
governments at; both levels are organized on the basis of Parliamentary System as
per the provisions of the Constitution.

• (b) The Seventh Schedule of the Constitution makes provision for the division of
powers between the Union and the States. It contains three lists :

1. The Union List which has 97 subjects of national importance and the Union
Parliament has the power to enact laws with respect to these subjects; 2. The State
List, which contains 66 subjects of local importance and the State Legislatures
have the power to enact laws with respect to these subjects; 3. The Concurrent List,
which contains 47 subjects and both the Parliament and State Legislatures can
legislate on them. The idea of Concurrent List is inspired by the Constitution of
Australia.

2. As per the requirement of federal system, the Indian Constitution is a written

document. It is a rigid Constitution as far as the amendment of federal provisions is
concerned. Thus, the following provisions, affecting the interests of states, can be
amended only if not less than half of the state legislatures have approved the same:

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Article 54 and 55 related to the manner of election of the President; 2. Articles 73
and 162 dealing with the extent of the executive power of the Union and States; 3.
Article 124, Chapter IV of Part V and Chapter V to Part VI related to the Supreme
Court and High Courts; 4. Chapter I of Part XI, dealing with the distribution of
legislative powers between the Union and States; 5. Any of the Lists in the 7th
Schedule; 6. Articles 80-81 and 4th Schedule related to the representation of States
in Parliament; and 7. Article 368, related to the Amendment of the Constitution. In
order to amend the above provisions the Constitution Amendment Bill has to be
approved by not less than half of the state legislatures before it is presented to the
President for his consent.

• (a) The Indian Constitution makes provision for an independent and Federal
judiciary. The Supreme Court of India acts as a federal court. It has the power to
decide the disputes arising either between the Union and the States or between the
two or more States under its Original Jurisdiction as mentioned in Article 131 of
the Constitution. The Constitution makes various provisions to ensure the
independence of judiciary from the Executive and the Legislature both.

Unitary Features of Indian Federation-

The unitary features of Indian federation are so striking that a noted scholar Ivor
Jennings, has termed it as a 'federation with strong centralizing tendencies.' The
unitary features of Indian federation are given:

• The Indian federation is an example of 'Indestructible Union with Destructible

states.' It means that the Union shall remain intact but the physical existence of
states or units can be modified. Accordingly, Article 3 provides that the Parliament
may by law form the new states by separating or uniting the territory of existing
states, increase or diminish the area of any state, and alter the name and boundary
of any state. On the other hand, the American federalism is characterized as
'Indestructible Union of Indestructible States'.

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• Unlike the American federation, the Indian Constitution provides for a single
citizenship. It means that, in India, every person is a citizen of India and they are
not entitled for citizenship of any state. The Union Parliament is empowered to
enact laws with respect to all matters related to citizenship.

• The Governor of a state, who is the executive head of the state, is appointed by
the President and holds office during the pleasure of the President. It should be
noted that the Governor is not a nominal head of state, but holds significant powers
with respect to the affairs of the state. In fact, the Governor functions as the
representative of the Union Government in the state and he/she is not responsible
to any authority within the state.

• The provision for single citizenship in India is also considered is the unitary
feature of Indian Federalism. In India, every person is a citizen of India.

• Unlike the US Federation, states in India do not have their separate Constitutions.
India has a single Constitution, which makes pro vision with respect to both the
Union and the States. Also, with the exception of some federal provisions, the
states in India do not have any power with respect to the amendment of the
Constitution, which is the sole prerogative of the Union Parliament.

• Generally, in federalism, the states or units have equal representation in the

second House of Parliament. But, in India, the states do not have equal
representation in the Council of States. The representation of states depends on
their population; the number of seats allocated to different states is mentioned in
the Fourth Schedule of the Constitution. The state of Uttar Pradesh has 31 seats,
whereas many states like Nagaland, Manipur, Tripura etc. have only one seat in the
Council of States

Genuine Federalism

The much abused article 356 which is a relic of the British Raj must be repealed
forthwith. With governors elected directly as proposed above, the question of
central imposition of state governors would not arise. There must be a
complete renegotiation of centre-state relations. There is an unassailable case for
the centre retaining the obvious subjects like Defense, External Affairs, Currency
and monetary policy, communications, international trade and inter-state trade.

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Almost all other subjects must be vested in the states and the local
governments. Concurrent list should be dispensed with and residual subjects must
be vested with the state and local governments. The constitution must provide for
three lists - union, state and local - with cohesive and definite jurisdiction over
these subjects for the respective governments. All India Services must be
dispensed with. However, in the light of the experience of the past 50 years, there
is a strong case for the union being vested with certain special responsibilities,
which are now not within its province.

* Development of natural resources with inter-state ramifications - in

particular, inter-state water resources.

* Disputes between states, including border disputes.

* Certain crimes of national significance affecting our unity and integrity, for
instance terrorist offenses, abductions etc.

* Ensuring non-discriminatory and equal treatment of all citizens -

particularly the linguistic and religious minorities.

* Ensuring free and uninterrupted inter-state trade and commerce

eliminating all barriers.

* The right to send armed forces to the states to protect the unity and
integrity of the nation, or to enforce any of the obligations of the union under
the constitution.

It is clear from the foregoing that any meaningful renegotiation of centre-state

relations cannot be a one-way traffic. There has to be a measure of balance
between greater autonomy to states and the imperatives of promoting national
unity and harmony, keeping in view our past experience. Both states and centre
must be stronger and work in tandem. In order to ensure that the constitutional
functionaries at various levels will adhere to federal principles in letter and spirit,
and will promote unity and integrity of India at all times, it may be necessary to
define a new class of Constitutional Offenses, which may entail impeachment and
removal, as well as criminal prosecution and punishment. Action may be initiated
against a constitutional functionary on the basis of a complaint from a prescribed
number of members of the appropriate legislature. Then the appropriate court will

29
hear the LokSatta case; and if the court indicts him, the legislature will proceed to
impeach and remove him, followed by prosecution. Such a safeguard will go a
long way in ensuring greater accountability of our elected leaders and other
public functionaries at various levels.

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 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 last, 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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 Bibliography:

(I) Primary Sources

Books :

 Indian Constitutional law: prof. M.P. Jain

 Indian constitution : U.N. Shukla
 Constitutional law of India: Dr. J.N. pandey, 51st Edition, 2014

(II) Secondary Sources

Websites:
(i) www.legalserviceindia.com

(ii) www.ebc-india.com

(iii) www.thehindu.co.in

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