Nature of Federalism
• Federalism in essence is a dual
government system including the Centre
and a number of States. Federalism is
one of the pillars of the Basic Structure
of the Constitution.
• A Federal theorist K.C. Wheare has argued that the
nature of Indian Constitution is quasi-federal in
nature.
Cooperative vs Competitive
Federalism
• In Cooperative federalism the Centre and states
share a horizontal relationship, where they “cooperate”
in the larger public interest.
• It is an important tool to enable states’ participation in
the formulation and implementation of national policies.
• Union and the states are constitutionally obliged to
cooperate with each other on the matters specified in
Schedule VII of the constitution.
• Competitive federalism is a concept where centre competes
with states and vice-versa, and states compete with each other. It
refers to relations between regional governments (horizontal
competition) and between central and regional governments
(vertical competition).
• The concept of competitive federalism is driving the Indian states
to rush in for reforms to make an easy way for doing business in
their state.
• Competitive federalism is also welcomed by industry
because healthy competition among states will pave the
way towards more investment destinations in future. In turn
it should lead to significant job creation and economic
development.
• As the Supreme Court iterated in the S.R. Bommai vs
Union of India case, the States are not mere appendages
of the Union and the latter should ensure that the
powers of the States are not trampled with.
• The SC in Sat Pal v State of Punjab and Ors (1969),
held that the Constitution of India is more Quasi-federal
than federal or unitary.
• Constitutional Provisions: The respective legislative
powers of states and Centre are traceable to Articles 245
to 254 of the Indian Constitution.
• Single Market Economy: Having a quasi federal structure
allows India to be a single market for the World. The recent
introduction of Goods and Services Tax (GST) has
allowed creation of India as a single market.
Conclusion
• The Chairman of Drafting Committee, Dr.
Ambedkar had rightly said that, “Our
Constitution would be both unitary as well as
federal according to the requirements of time
and circumstances”
The Union, States and Union
Territories
• Article 1 of the Constitution states, “India, that is Bharat, shall
be a Union of States”. While the Constitution doesn’t mention the
term “federal”, it does provide for a governance structure primarily
federal in nature.
• It provides for separate governments at the Union and in the
states. Further, it specifies and demarcates the powers, functions
and jurisdictions of the two governments. Lastly, it details the
legislative, administrative and financial relations between the
Union and the states.
• The distribution of legislative powers has been divided into three
lists: the Union List, the State List and the Concurrent List. The
Union List, comprising the “vital interests of the State”, is the
longest.'
Process of alteration and
formation of states
• Article 3 - Formation of new States and alteration of
areas, boundaries or names of existing States.
• Happens through a simple majority in the Parliament
• Art. 3 confers powers on the Parliament for alteration and formation
of new states
• Process was first initiated formally through the States Reorganization
Act 1956.
• Context - The Jammu and Kashmir
Reorganisation Act, 2019 reorganises
the state of Jammu and Kashmir into:
• (i) the Union Territory of Jammu and
Kashmir with a legislature, and
• (ii) the Union Territory of Ladakh without
a legislature.
Some judicial decisions
• re Berubari Case
• Issues raised in this cased-
• Whether the parliament has the power to grant any territory
of the state to a foreign country under Article 3 of the Indian
Constitution?
• Whether legislative action is necessary for the
implementation of the Nehru-Noon Agreement?
• Arguments Given by the Government
• The government said that we are not doing cession of any
land. Instead, we are just exchanging the land, so no
legislative intervention is required.
Judgement Given by the Court in the
Berubari Union Case
• The Supreme Court held that the parliament does not
have the power to give the territory of any state
to another country under Article 3 of the Indian
Constitution. Parliament can do so only after amending
Article 368 of the Indian Constitution.
• The Supreme Court further concluded that
the Preamble is not a part of the Indian
Constitution. Moreover, Article 1(3)(c) only talks about
acquiring territories and not ceding any territory.
Impact of the Berubari Union
Judgement
• The parliament had to bring the 9th Amendment
Act in 1960 that amended Schedule 1 of the
Indian Constitution. The Nehru-Noon Agreement
was finally implemented and transferred the
Berubari union to Pakistan.
• Babulal Parate v. State of
Bombay
• In1956, a petition was filed by the appellant under Article 226 of the
Constitution in the Bombay High Court in which he contended that the
creation of the new State of Bombay as a single unit instead of separate
three units violated Article 3 of the Constitution since the Bombay
Legislature was deprived of an opportunity to express its opinion on the
creation of the new State of Bombay.
• The HC held it is valid.
• The aggrieved party filed an appeal before SC.
• It was held that Article 3 was not violated and the impugned Act or the
sections therein are valid.
• The appeal was dismissed with costs.
Conclusion:
• This case of Babulal Parate not only provides the true
scope and process envisaged in Article 3 of the
Constitution of India, but also proves that the
Parliament has unambiguous and exclusive power to
form and reorganize the States including the power to
alter the boundaries in order to diminish or grow their
areas.
• N. Masthan Sahib v Chief Commissioner, Pondicherry (AIR
1962 SC 797)- Though the Central Govt. declared that
Pondicherry is not a part of India, yet the apex court held
that it was under the control and administration of the
central govt.
• Maganbhai Ishwarbhai Patel v Union of India & Anr. (AIR
1969 SC 783)- There was a dispute regarding division of the
Rann of Kutch in Gujarat between India and Pakistan. Area
was awarded to India by an arbitral tribunal and later upheld
in appeal by the apex court as well.
• R.C. Poudyal v Union of India (AIR 1993 SC 1804)-
Reservation policy was extended to Sikkim which was
challenged as unconstitutional. It was contended that
Sikkim is not a part of India geographically but the
court held otherwise and upheld the constitutional
validity of Election Laws (extension to Sikkim) Act,
1976 which extended Representation of Peoples’ Act
1951 to Sikkim
