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Longish Term
Paper -1 On
FEDERALISM
Submitted
By
H. LALMALSAWMI
L.L.M 1ST
YEAR
GUIDE
MRS. ISHRAT NADAF
Post graduation Teaching
Department of Law
(Semester II - March 2011)
DECLARATION
I hereby declare that the longish term paper - 1 entitled "Federalism"
submitted by me is the record of work carried out by during semester - II of
the first year LLM course for the academic year 2010-2011 under the
guidance of Mrs. Ishrat Nadaf and has not formed the basis for the award of
any degree, diploma, associate ship, fellowship title in this year or any
other institution of higher learning. I further declare that the material of this
Ltp is my original work and I have not copied from any report of this
nature. The material obtained from other sources has been acknowledged
in this research work.
Place : Pune
Date: 31/03/2011
CERTIFICATE
I hereby certified that these research paper on 'Federalism' by
H.Lalmalsawmi in partial fulfillment for the award of Master of Law has
been prepared in my guidance and to the best of my knowledge. It is
bonafide one.
PRINCIPAL SUB-ORDINATOR
(Dr. Rasheed Shaikh) (Mrs. Ishrat Nadaf)
Place :- Pune
Date:-
ACKNOWLEDGEMENT
An endeavor is always incomplete without an acknowledgement of those
who helped you achieve it and guide through it. Words and hardly express
my deep sense of Post Graduation Teaching Department of Law and
indebtedness to my esteemed Teacher without whose valuable guidance
and timely advise my Research would have been an impossible task.
I would specially like to thanks Dr. Rasheed Shaikh, Principal of 'A.K.K'
New Law Academy. The Law College for his invaluable support which
helped us a lot in the Research Work. And also I express sincere thanks to
my Guide,Mrs Ishrat Nadaf, and our Head Of Department, Dr. Payal
Thaorey and all Post Graduation Teaching Department of Law for their
constant and uncasing guidance throughout this Research Work.
I would like to thank the entire Staff of Post Graduation Teaching
Department of Law without those help the task would have been
impossible. I would also like to thank the Teacher and Persons of
Department for assistance during the lab sessions in the Library.
Finally, I would also like to thanks the University of Pune, and 'A.k.k' New
Law Academy, The Law College.
Thank You!
H.LALMALSAWMI
INDEX
CHAPTER-1
INTRODUCTION
1.1 AIMS AND OBJECTIVE OF REASEARCH
1.2 RATIONAL AND SIGNIFICANCE OF STUDY
1.3 HYPOTHESIS
1.4 STATEMENT OF PROBLEM
1.5 SCOPE OF WORK
1.6 RESEARCH METHODOLOGY
CHAPTERISATION
CHAPTER-2 : MEANING AND CONCEPTUALIZATION OF
FEDERALISM
2.1 Meaning of Federalism
2.2 Definition of Federalism
2.3 Essential Features of Federalism
2.4 Traditional and Modern Approach
CONSTRUCTIONAL PROSPECTIVE
CHAPTER-3 :NATURE OF INDIAN FEDERAL SYSTEM
5.1 Indian Constitution- federal or unitary
5.2 Distinctive features- co operative federalism of India
CHAPTER- 4 INTERNATIONAL PROSPECTIVE
COMPARATIVE ANALYSIS
Pattern of Federal Government- USA, Canada and Australia
CHAPTER-5
Federalism envisaged by the Government of India Act, 1935
CHAPTER-6 : CONSTITUTIONAL PROVISION
CONSTITUTIONAL PROVISIONS- MODIFICATION OF
FEDERAL PRINCIPLE IN INDIAN CONSTITUTION
6.1 Parliament powers to form New States and Alter boundaries of existing
States(Art.2&3)
6.2 Parliament's power to make law on State matters
6.3 Administrative relations between Union and States
6.4 Distribution of Legislative Power between the Union and the States
(Art.246)
6.5 residuary powers of Legislation (Art.248)
6.6 Emergency provisions - Provision on federalism, Effect of Emergency
power.
CHAPTER-7
JUDICIAL INTERPRETATION
CHAPTER-8
8.1 Cooperative Federalism in India
8.2 Recent development in Indian Federalism
CHAPTER-9
CONCLUSION AND SUGGESTIONS
III. BIBLIOGRAPHY
LIST OF SOURCES
List of books referred
List of website referred
List of cases referred
CHAPTER-1
INTRODUCTION
1.1 AIMS AND OBJECTIVES OF RESEARCH
To study in detail the meaning of federalism and to describe the basic principle
of Federalism.
To examine the character of Indian federal system and whether or not the Indian
Constitution can be described as a Federal Constitution.
To give a distinctive study of other federal countries with India.
To critically examine the Indian Federal System.
1.2 RATIONAL AND SIGNIFICANCE OF STUDY
There has been a lot of insoluble controversy as to the question whether Indian
Constitution is federal or unitary. Some characterized it as federal, while other treated it
as unitary. To solve this controversy it is necessary to examine the essential
characteristics of a federal constitution. Indian Constitution has chosen to adopt federal
system but with a capacity to work as unitary when so required. As the new trend in all
federations is to have some sort of co-operative federalism with somewhat dominating
powers to the centre, the framers of the Indian Constitution have also sought to provide
for co-operative federalism. Cooperative federalism is a modern approach where the
powers are distributed between National government and State government.
1.3 HYPOTHESIS
Constitution of India is neither purely federal nor purely unitary but a combination of
both. According to the need and demands of circumstances and to meet the aspiration of
the people, there are some provisions in the Indian Constitution which deviates from
truly federal character. It is like a chameleon which can change colour according to
environment. Much will depend upon the role of the President, regional and national
parties, the strength of the political party in power at the Centre and its backing in
States.
The constitution of India contains various provisions for inter-state coordination and
cooperation. Cooperation and coordination between the Union and States have been
considered necessary for the development of the country. The Constitution of India,
thus, provides for Cooperative Federalism.
1.4 STATEMENT OF PROBLEMS
What are the basic principles of Federalism and to what extent do they
incorporated into the Indian Constitution?
Whether the Constitution of India is truly federal in character or more unitary?
Whether the federal system in India is same as in U.S.A, Canada and Australia?
Whether the condition of the present Indian Constitution can be described as
Cooperative Federalism?
1.5 SCOPE OF WORK
The Indian Constitution cannot be called "federal" or "unitary" in the ideal sense of the
terms. The British parliament has set up a federal system in India by the Government of
India Act, 1935.
Article 1(1) of the Constitution of India says that, "India that is Bharat, shall be a Union
of States." The Constitution, thus postulated India as a Union of (States and
consequently, the existence of federal structure of governance for this Union of States
becomes a basic structure of the Union of India.
The Constitution makes a distribution of powers between the Union and the States, the
jurisdiction of each being demarcated by the Union, State and Concurrent lists. In case
of a conflict between the two legislatures over a matter in the Concurrent list the will of
the Parliament prevails. The supremacy of the Constitution- the hallmark of a
federation- is an important feature of the Indian polity. Neither the Central government
nor the State Governments can override or contravene the provisions of the
Constitution. Another prerequisite of a federation, namely, an independent judiciary -
an interpreter and guardian of the
Constitution - is also present in the Indian Federation. The Supreme Court can declare
any law passed by the Union Parliament or a State legislature ultra vires if it
contravenes any of the provisions of the Constitution.
The Constitution of India contains various provisions for inter- state coordination and
cooperation. Thus, it provides for Cooperative Federalism.
1.6 RESEARCH METHODOLOGY-
Methodology can be: "the analysis of the principles of methods, rules and postulates
employed by a discipline "the systematic study of the methods that are, can be, or have
been applied within a discipline", "a particular procedure or set of procedures"..
This research is based on the Doctrinal research. Doctrinal research means a research
that has been carried out of legal proposition or propositions by way of analysing the
existing statutory provisions and cases by applying the reasoning power.
According to SN Jain, doctrinal research involves analysis of case law, arranging,
ordering and systematizing legal propositions and study of legal institution through
legal reasoning and rational deduction.
CHAPTER-2
CHAPTERISATION
2.1 MEANING OF FEDERALISM
Federalism is a political concept in which a group of members are bound together by
covenant with a governing representative head. The term "federalism" is also used to
describe a system of the government in which sovereignty is constitutionally divided
between a central governing authority and constituent political units (like states or
provinces). Federalism is a system in which the power to govern is shared between
national and provincial/state governments, creating what is often called a federation.
Proponents are often called federalists.
In Canada, federalism typically implies opposition to sovereignty's movements. In the
United States, advocates of a very small federal government and stronger state
governments are those that generally favor confederation, often related to early
"anti-federalists" and later the Confederacy in the United States.
Argentina, Australia, Brazill, India and Malaysia among others, are also federal
countries. Modem Constitution and Government are classified into Unitary and federal
on the basis of concentration or distribution of powers and the nature of the relationship
between the central and the regional authorities. In a Unitary constitution, supreme
power belongs to the Central Governments and there is no constitutional division of
power between the national and regional government.
The term 'Federal' is derived from the Latin word 'Foedus' this means treaty or
agreement. In case of federal constitution, there is a treaty or agreement namely, a
written constitution, which defines and determines the powers of the two sets of
government, national and regional. A federal government is a dual government.1
A citizen of federal country thus becomes subject to the decree of two governments-
Central and the regional. The Regional Government is called the State Government as
in U.S.A, Australia or India, or Provincial Governments in Canada.
Definitions:
Following are some of the definitions which help to understand and appreciate the
meaning and nature of federalism.
1. Prof. K. C. Wheare
According to him, "Federal Principle is the method of dividing powers so that
the general and regional governments are each, within a sphere, coordinate and
independent." Existence of coordinate authorities' independent to each other is
the gist of the federal principle.
2. Montesquieu
According to him, "A Constitution by which several similar States agree to
become members of a large one is a federal government."
3. Dicey
According to him, "A federal State is a political contrivance intended to
reconcile national unity with the maintenance of State rights."
Thus in a federal Constitution both the Central and regional governments are
co-ordinate and independent in their spheres and not subordinate to one another.
The Constitution of U.S.A. which establishes dual form of government, is a
classic example of federalism.
2.2 TRADITIONAL AND MODERN APPROACH
Federalism is a comparatively modern concept. However, there is no agreed definition
of a federal state. Federalism originates from ancient Greece. Broadly speaking, there
are two approaches to understand the federal system which are as follows:-
1. Traditional approach
Traditional approach place main emphasis on the existence of two independent and
coordinate authorities and Joint plenary powers within the jurisdiction set apart by the
Constitution. According to Prof. K.C. Wheare, the federal principle is the method of
dividing powers so that the general and the regional government are each within a
sphere co-ordinate and independent. On this basis Prof. Wheare finds that there are only
four federations in the world i.e. U.S.A, Canada, Australia and Switzerland. He puts
other federations (e.g. India) in the category of quasi federations. But this traditional or
classic approach has some limitations, it ignores compulsions of socio-economic forces
operating in the modern era which have not left unmolded even the traditional
federations of Prof. Wheare. Thus on strict application of the traditional tests it is not
possible to find a single example of a true federation in the world.
2. Modern approach
The insistence of modern approach on independence in mutual relationship of the
States and the National Government are too idealistic to be followed in the presence age
of interdependence. This idea of interdependence and cooperation finds concrete
expression in the formulation of concurrent powers, an area over which both the
national and State governments operate. The modern Jurists instead of interdependence
states talk of Cooperative federalism wherein the relationship between two sets of
Governments is that of interdependence. Some writers have suggested federation as
pure creature of expediency whereby the powers are so distributes between the national
and state governments that there is scope for constant adjustment of relations between
the two sets of government according to the requirement of both time and place. Dicey
has defined a federal state, as "a political contrivance intended to reconcile national
unity with maintenance of state rights.
2.3 ESSENTIAL FEATURES OF FEDERALISM Essential features of
Federalism
A Constitution will be a Federal Constitution, if it possesses the following
characteristics:-
a. Duality of Government:
While in a unitary state there is only one government i.e. National Government
or Central Government. But in a federal state, there are two governments the
federal or the central governments and the government of each constituent's
state. This features clearly differentiates between federation and confederation
b. Distribution of powers:
The distribution of powers between the centre and the states is the most
important characteristics, rather the core of any federal system. In reality, the
whole federal system revolves around this basic core of distribution of powers.
A federal constitution thus envisages a demarcation or division of governmental
functions and powers between the centre and the regions.
c. Supremacy of the Constitution:
Supremacy of the Constitution is an essential feature of the federal constitution.
The Constitution of USA is a federal Constitution. Consequently, there is
supremacy of Constitution in USA. Any act of any organ of the government
which is against the
Constitution is invalid and of no force. The Legislature, Executive or Judiciary
cannot isolate the Constitution.
The Supremacy of the Constitution is necessary for the establishment and
maintenance of Federal Constitution and Federal Government. No person or
governmental authority is above the Constitution.
d. Written and Rigid Constitution:
Actually it is not necessary for a federal Constitution to be written but in
practice it is always found written, because due to distribution of powers
between the central government and the State governments, an unwritten
federal constitution will create confusion and conflict. Indian Constitution is a
written Constitution.
d. Authority of Courts:
In a federal state, the legal supremacy of the constitution is essential to the
existence of a federal system and to ensure this it is necessary to maintain the
authority of courts, which must have final power to interpret the Constitution
and guard the entrenched provision of the Constitution.
CHAPTER-3
PATTERN OF FEDERAL GOVERNMENT- U.S.A, CANADA AND
AUSTRALIA
The term federalism is also used to describe a system of the government in which
sovereignty is constitutionally divided between a central governing authority and
constituent political units (like states or provinces). Federalism is the system in which
the power to govern is shared between the national & state governments, creating what
is often called a federation.
U.S.A
In the United States, federalism is the system of government in which power is divided
between a central government and the government of each state. Before the U.S.
Constitution was written, each American state was essentially sovereign. The U.S.
Constitution created a federal government with sufficient powers to both represents and
unite the states, but did not supplant state governments. This federal arrangement, by
which the central federal government exercises delegated power over some issues and
the state governments, exercise power over other issues, is one of the basic
characteristics of the U.S. Constitution that checks governmental power.
The U.S. Constitution establishes a government based on "federalism," or the sharing
of power between the national, and state (and local) governments. Our power-sharing
form of government is the opposite of "centralized" governments, such as those in
England and France, under which national government maintains total power.
While each of the 50 states has its own constitution, all provisions of state constitutions
must comply with the U.S. Constitution. For example, a state constitution cannot deny
accused criminals the right to a trial by jury, as assured by the U.S. Constitution's 6th
Amendment. Under the U.S. Constitution, both the national and state governments are
granted certain exclusive powers and share other powers.
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 preexisting 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' and 'maximum-private' enterprises.
In course of time, however things have changed. The powers of the centre have
expanded since 1787 and correspondingly the powers of the states have shrunk.
This has been achieved without any explicit-amendment of the constitution but through
ingenious legislative device and also through Judicial Activism.
Now in present context, the states in the U.S.A are co-ordinate with the central
government, as there definitely-weaker vis-a-vis the centre. The process has been aided
by such factors as tense international situations, wars, vat economic and technological-
developments, replacement of laissez faire by the social-welfare etc.
CANADA
The Canadian-constitution, definitely told an accent on the centre. In course of time,
however the privy-council, by its process of interpretation weakened the centre and
raises the provinces. This was the result of assertion of bilinguism and biculturism by
Quebec (a French majority state). The central-power to veto the provincial-legislation
has also come to be used sparingly as a result of growth of conventions.
On the whole, therefore, the provinces in Canada have greater freedom of action than
the other units in other federations and this has at times been inconvenient and
embarrassing to the centre, primarily in the area of foreign -relations and
economic-matters.
The difficulty of any treatment of federalism is that there is no agreed definition of a
federal state. The other difficulty is that it is habitual with scholars on the subject to
start with the model of the United States, the oldest (1787) of all federal constitution in
the world, and to exclude any system that does not conform to that model from the
nomenclature of federation. But numerous countries in the world have, since 1787,
adopted Constitutions having federal features and, if the strict historical standard of the
United States applied to all these later Constitutions from the federal class, for
according to the traditional classification followed by political scientists, Constitutions
are either unitary or federal. If therefore, a Constitution partakes of some features of
both types, the only alternative is to analyses those features and to ascertain whether it
is basically unitary or federal, although it may have subsidiary variations. A liberal
attitude towards the question of federalism is, therefore, inevitable particularly in view
of the fact that recent experiments in the world of Constitution- making are departing
more and more from pure type of either unitary or federal system. The Question
whether a state is unitary or federal is one of degrees and the answer will depend upon
"how many federal features it possessed".3
Canada is a federation with two distinct jurisdictions of political authority: the
countrywide federal government and ten regionally-based provincial governments. The
federal government includes the Parliament of Canada and the prime minister, while
the provincial governments include each province's legislative assembly and premier.
The two levels are linked together by the Canadian Crown, from which all derive their
sovereignty and authority, as well as a court system that rules of jurisdiction between
the levels. The federal parliament and the legislative assemblies of the provinces are
each independent of one another with respect to their areas of legislative authority. A
few subjects are shared, such as agriculture and immigration, but most are either
entirely within federal jurisdiction, such as foreign affairs and telecommunications, or
entirely within provincial jurisdiction, such as education and healthcare.
The three territories are creations of the Federal Parliament and exercise delegated
power and not sovereign power. The United Kingdom did not follow this model when
Confederation was realized, making Canada different from its mother country (and
similar to its southern neighbor, the United States) in this respect. The governments of
cities and regions within provinces are creations of the provincial governments. The
federal nature of Canadian Constitution was a reaction to the colonial diversities in the
Maritimes and the Province of Canada, in particular the strong distinction between the
French-speaking inhabitants of Lower Canada (Quebec) and the English-speaking
inhabitants in Upper Canada (Ontario) and the Maritimes. Federalism was considered
essential to the co-existence of the French and English communities. John A.
Macdonald, who became the first Prime Minister of Canada, had at first opposed a
federalist system of government, favoring a unitary system of government. Macdonald
later supported the federalist system after seeing the carnage of the American Civil
War. He sought to avoid the same violent conflicts by maintaining a fusion of powers
rather than a separation of powers south of the border.
The division of powers between the federal and provincial governments was initially
outlined in the British North America Act, 1867 (now the Constitution Act, 1867),
which, with amendments (in the British North America Acts and the Constitution Act,
1982), form the Constitution of Canada. Federalism is one of the three pillars of the
constitutional order, along with responsible government and the Canadian Charter of
Rights and Freedoms.
AUSTRALIA
Whilst the presidential system of government and a comprehensive Bill of Rights in
Australia were rejected, some of the federal features of the American system were used.
These features include a high degree of autonomy for the government institutions of the
federation and the states, a division of power between these organizations, and a
judicial authority to determine whether either level of government had exceeded its
powers.
Australia successfully adapted the American concept of state and federal governments
possessing separate sovereignty within the framework of a constitutional monarchy by
establishing the position of state governor to be appointed by the Sovereign on the
advice of the relevant state premier, the Commonwealth Government playing no role in
these appointments. This gives each state a direct link with the Crown that completely
bypasses Canberra, and can be contrasted with the Canadian system where provincial
lieutenant- governors, appointed by the Governor General on the advice of the federal
Prime Minister, were once seen as representatives of the Canadian federal government
and not the Sovereign directly.
Other aspects of the Constitution of Australia are associated with the federal principle.
Original states have equal representation in the senate. Although this is not an essential
element of federation, it reflects the view that states (colonies) should be equal in status.
Since federation the balance of power between levels of government has shifted from
the founding fathers vision. The shift has transferred power from State governments to
the Commonwealth government. Phases in the development of Australian federalism
can be identified.
The first phase may be described as co-ordinate federalism. In co-ordinate federalism
the Commonwealth and the States were both financially and politically independent
within their own spheres of responsibility.
A factor in the expansion of Commonwealth powers was the growth of defence
expenditures which culminated in Australia's involvement in World War I. After the
war. Conservative Commonwealth governments attempted to return to a system of
co-ordinate federalism. However, a system of co-operative federalism developed in the
1920s and 1930s in response to both internal and external pressures. Elements of
cooperative federalism included: the establishment of the Australian Loan Council in
response to intergovernmental competition in the loan markets; the co-ordination of
economic management and budgetary policies during the Great Depression; and the
establishment of joint consultative bodies, usually in the form of ministerial councils.4
CHAPTER-4
FEDERALISM ENVISAGED BY THE GOVERNMENT OF THE
INDIA ACT, 1935
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 and variety of people, India could not be governed
efficiently as a unitary-state and so a unitary constitution was out of question.
India, such a large country with diverse-cultures, religions, languages, tribal and ethnic
differences and even marginal racial variations, with historical, geographical and
political- divergences, cannot bear true faith with democracy and collective freedom
without authentic Federal Features.
By the act of 1935, the British Parliament set up a federal system in the same manner as
it had done in the case of Canada, by creating autonomous units and combining them
into a federation by one and the same Act. All powers hitherto exercised in India were
resumed by the crown and redistributed between the federations and the Provinces by a
direct grant. Under this system, the provinces derived their authority directly from the
Crown and exercised Legislative and executive powers, broadly free from central
control, within a define sphere. Nevertheless, the Centre regained control through the
Governor's special responsibilities and his obligation to exercise his individual
judgement and discretion in certain matters, and the power of the Centre to give
direction to the Provinces.
The peculiarity of thus converting a unitary system into a federal one can be best
explained in the words of the Joint parliamentary Committee on Indian Reforms: "Of
course in thus converting a unitary state into a federation we should be taking a step for
which there is no exact historical precedent. Federation have commonly resulted from
an agreement between independent or, at least, autonomous Governments, surrendering
a defined part of their sovereignty or autonomy to a new Central organism. At the
present moment the British Indian Provinces are not even autonomous for they are
subject to both administrative and legislative control of the Government and such
authority as they exercise has been in the main devolved upon them under a statutory
rule-making power by the Governor- General in council. We are faced with the
necessity of creating autonomous units and combining them into a federation by one
and the same act."
It is well worth remembering the peculiarity of the origin of the federal system in India.
Neither before nor under the Act of 1935, were the Provinces in any sense 'Sovereign'
States like the States of American Union. The Constitution, too, has been framed by the
people of India assembled in the Constituent Assembly, and the Union of India cannot
be said to be the result of any compact or agreement between the autonomous States. So
far as the Provinces are concerned, the progress had been from a unitary to a federal
organization, but even then, this has happened not because the Provinces desired to
become autonomous units under a federal union, as in Canada. The Provinces, as just
seen, had been artificially made autonomous, within a defined sphere, by the
Government of India Act, 1935. What the makers of the Constitution did was to
associate the Indian States with these autonomous Provinces into a federal Union,
which the Indian States had refused to accede to, in 1935. Some amount of
homogeneity of the federating units is a condition for their desire to form a federal
union. But in India, the position has been different. From the earliest time, the Indian
States had a separate political entity, and there was little that was common between
them and the Provinces which constituted the rest of India. Even under the Federal
scheme of 1935 the Provinces and the India States were treated differently; the
accession of the Indian States to the system was voluntary while it was compulsory for
the provinces, and the powers exercisable by the Federation over the Indian States were
also to be defined by the Instruments of Accession. It is because it was optional with the
Rulers of the Indian States that they refused to join the federal system of 1935. They
lacked 'the federal sentiments' (Dicey), that is, the desire to form a federal Union with
the rest of India. But, as already pointed out, the political situation changed with the
lapse of paramountcy of the British Crown as a result of which most the Indian States
acceded to the Dominion of India on the eve of the Independence of India.
The credit of the makers of the Constitution, therefore, lies not so much in bringing the
Indian States under the federal system but in placing them, as much as possible, on the
same footing as the other units of the federation, under the same Constitution. In short,
the survivors of the Old Indian States were, with the minor exceptions, placed under the
same political system of the old provinces. The Integration of the Units of the two
Categories has eventually been completed by eliminating the separate entities of States
in Part A and Part B and replacing them by one Category of States, by the Constitution
(7th
Amendment) Act, 1956.
CHAPTER-5
NATURE OF INDIAN FEDERAL SYSTEM
There is difference of opinion among the constitutional jurists about the nature of the
Indian constitution. One view is that it is a quasi federal Constitution and has more
Unitary features than federal features.
Article 1(1) of our Constitutions says " India, that is Bharat, shall be a Union of States."
While submitting the Draft Constitution, Dr. Ambedkar, the Chairman of the Drafting
Committee, stated that "although its Constitution may be federal in structure", the
Committee had used the term "Union" because of certain advantages, these advantages,
he explained in the Constituent Assembly, were to indicate two things, viz., (a) that the
Indian federation is not the result of an agreement by an Units, and (b) that the
component units have no freedom to secede from its.
The word "Union" does not indicate any particular type of federation, in as much as it is
used also in the Preamble of the Constitution of the United States- the model of
federation; in the Preamble of the British North America Act (which according to Lord
Haldane, did not create a true federation at all); in the Preamble to the Union of South
Africa Act. 1909, which patently set up a unitary Constitution; and even in the
Constitution of U.S.S.R. (1997), which formally acknowledges a right of succession [
Art. 72] to each Republic, i.e, unit of the Union. We have, therefore, to examine the
provisions of the Constitution itself, apart from the label given to it by its draftsman, to
determine whether it presides a federal system as claimed by Dr. Ambedkar,
particularly in view of the criticisms leveled against its federal claim by some foreign
scholars.
The difficulty in any treatment of federalism is that there is no agreed definition of a
federal State. The other difficulty is that it is habitual with the scholars on the subject to
start with the model of the United States, the oldest (1787) of all federal Constitution in
the world, and to exclude any system that conform to that model from the nomenclature
of that federation. But numerous countries in the world have, since 1787, adopted
Constitutions having federal features and, if the strict historical standard of the United
States be applied to all these later Constitutions, few will stand the test of Federalism
save perhaps Switzerland and Australia. Nothings is, however, gained by excluding so
may recent Constitutions from the federal class, for, according to the traditional
classification followed by political scientists, Constitutions are either unitary or federal.
If therefore, a Constitution partakes some features of both types, the only alternative is
to analyse those features and to ascertain whether it is basically unitary or federal,
although it may have subsidiary variations. A liberal attitude towards the questions of
federalism is, therefore, inevitable particularly in view of the fact that recent
experiment in the world of Constitution making are departing more and more from the
pure type of either unitary or a federal system. The question whether a State is federal or
unitary is one of degrees and the answer will depend upon how many features it
possesses.
5.1 INDIAN CONSTITUTION- FEDERAL OR UNITARY
Federal features:
To solve the controversy as the question whether Indian Constitution is federal or
unitary, we have to examine the essential characteristics of a federal Constitution with
the Indian Constitution. Some of the federal features of the Indian Constitution can be
summarized as follows:
1. Existence of Dual Government- There can be no federation unless there are
two sets of governments - one at the centre and the other at regional level. In
India, we have the Government of the Union of India at the Centre and
Governments of various States as regional units of federation. To this extent
Indian Constitution possesses federal element.
2. Distribution of powers- Mere existence of central and regional governments
does not make a constitution federal because this can be possible even in a
unitary government where a large country is divided in several regional units
for the sake of administrative convenience. For a federation, distribution of
powers between central government and regional units is essential and this
distribution should be such as to ensure substantial independence to central as
well as regional governments. In Indian Constitution all legislative powers are
enumerated in three Lists of the Seventh Schedule. In respect of matters
enumerated the list I, Union has exclusive power to legislate and in respect of
matters enumerated in List II, the States have exclusive legislative power. List
III is concurrent list. In respect of matters enumerated in this list, both Union
and States have power to legislate, The Union and States have executive powers
also on matters in respect of which they have power to legislate. Thus, the
Constitution provides for distribution of powers ensuring substantial
independence to governments of both levels.
3. Written constitution- This is strictly not necessary to constitute a federation
but it is a practical necessity that distribution of powers has to be recorded. We
have one of the largest written constitutions of the world.
4. Supremacy of the Constitution- Distribution of powers will be of no use if the
constitution is not treated as supreme and governments are allowed to violate it.
In India, any legislative or executive action of Union or State government will
be of no force if it is against the provisions of the Constitution. Constitution is
supreme. In Sub-Committee on Judicial Accountability v Union of India, the
Supreme Court has held that in India, Constitution not the Parliament, is
supreme Constitution is fundamental and higher law and being so it is the
touchstone of limits of powers of various organs of the State.
5. Independent arbiter of powers- There must be some independent authority to
interpret the constitution and to resolve the disputes between central and
regional governments The authority need not necessarily be the court, but
generally courts are entrusted with this job. Under the Indian Constitution
power to interpret the Constitution rests with the courts and for ensuring
independence of courts, the judges have been given substantial protection in
respect of their salaries and tenure of service. The judges -of the Supreme Court
and the High Court’s cannot be removed from service except in accordance
with the provisional of Article 124 (4), nor can their salaries or emoluments be
varied to their disadvantage.
6. Rigid process of amendment- For a federation it is necessary that power to
amend the constitution should not be given exclusively to centre or regional
units. Both must participate in the process of amendment, Under Article 368,
certain matters, which can affect federal structure, cannot be amended by
Parliament alone even by special majority. At least half of the States must also
ratify.
Thus, all the essential elements of federal constitution are in principle
embodied in our constitution. Besides these, the Upper House to the centre is
elected by State Legislatures and in Presidential elections, members of both
Houses of Parliament as well as of State Assemblies take part. In spite of all
this our constitution has been branded as quasi-federal by Dr K C Wheare.
Some have called it as unitary with certain federal features Granville Austin in
his book "The Indian Constitution — Cornerstone of a Nation" concluded that
our system, if it could be called federal, could be described as "Co-operative
federalism", which implies system with three characteristics:
(i) administrative co-operation between central and regional governments,
(ii) partial dependence of the regional governments upon payments from
the central government and,
(iii) the use of conditional grants by central governments for promotion of
developments in matters constitutionally assigned to regions.
The direct question whether our Constitution is federal or unitary was
not seriously considered by the Supreme Court except in State of West
Bengal v. Union of India1, in which it held by majority that Indian
Constitution is not federal. But the issue involved in the case was
narrow one, that is, whether Union of India could acquire landed
property belonging to state or states could claim immunity because of
federal nature of the, Constitution. However, in In re Under Article 143,
the Supreme Court recognizes that the Indian Constitution is a federal
Constitution.
In Keshavananda v. State of Kerala , some of the Judges of the Supreme
Court regarded federal character of the Indian Constitution as, an
essential or the basic feature of the Indian Constitution. On the other
hand, Beg CJ, in State of Rajasthan v. Union of India, observed that a
conspectus of the provisions of our constitution will indicate that,'
whatever- appearances of a federal structure our Constitution may
have, its operations are certainly judged both by the contents of powers
which a number of provisions carry with them and the use that has been
made of them, more unitary than federal In Satpal v. State of Punjab,
the Supreme court again held that ours is a Constitution where there is a
combination of federal structure with unitary features.
In Pradeep Jain v. Union of India", also the Supreme Court held that
India is not a Federal State in the traditional sense of that term. It is not
a compact of sovereign States which have come together to form a
federation by ceding a part of their sovereignty to the federal-State. It
has undoubtly certain federal features but is still not a federal State. It
has only one citizenship, that is, citizenship of India and a unified legal
system which extend throughout the country
Unitary features :
The following unitary features are relied upon by those who challenge the federal
character of the Indian Constitution:-
1. Process of Formation- A very weak argument is based on the process of
formation of federation. It is said that process of formation of the Indian
Constitution has been just the reverse. Before the present Constitution was
framed, India was governed by the Britishers as Unitary State. In State of West
Bengal v. Union of India2 and Pradeep Jain v. Union of India , this aspect was
given undue emphasis. The process of formation does not affect the federal
nature. There are many federations which came into existence not as a result of
a compact between existing states but as a result of division of existing State.
Between Indian States and former provinces, there has been integration but
some bigger Provinces were divide to form a new State.
2. No separate State Constitutions, single Citizenship- Equally weak
arguments are made on the basis of certain non-essential characteristics which
are present in some important federal Constitutions. For instance, in many
federations 3State have their separate constitutions and citizenship. In Pradeep
Jain v Union of India'5, this aspect was also emphasized. In our country
provisions regarding organisation of government in States are incorporated in
the Indian Constitution itself. States do not have separate constitutions as there
is no provision for dual citizenship, but these matters are incidents of history of
a particular federation and are not essential for co-ordinate functioning of both
the tiers of the government- Centre and States.
3. Union Control over State Executive.—
i. Appointment of Governors- The executive head of the state, i e, Governor
is appointed by the President and holds office during his pleasure. This by
itself does not affect federal system very much, because in almost all matter,
he has to act on the advice of his ministers but his position is liable to be
misused by the Central Government under certain circumstances. In fact, it
2 AIR 1963 SC 1241
3 CONSTITUTION OF USA, SWITZERLAND AND AUSTRALIA
has been used on several occasions to dismiss the Ministry of an opposition
party in States or to appoint a Chief Minister who has not majority support
in the Legislative Assembly as was done by the Governor of Jharkhand
recently.
ii. Execution of Union laws by State Executive.- The division of executive
powers between the Union and the States is on the basis of division of
Legislative powers. This is provided in Articles 73 (1) and 162, but the
division is not like watertight compartments. The laws made by the Union
on concurrent matters will be primarily administered by States unless
Parliament directs otherwise. The executive powers of the State shall, be
subject to and limited by executive powers of the Union.
iii. Delegation of power by the Union- Even in respect of matters in the Union
list, Union may delegate its functions to States. Similarly, under Article
258A, the Governor of a State may entrust executive functions of State to
Union or its officers.
iv. Executive Direction - Article 256 says that the executive power of a state
shall be so exercised as to ensure compliance with the laws made by
Parliament and that executive power of the Union may extend to giving of
directions to the states. Article 257 also provides for executive directions by
the Centre as to the manner in which the state executive power is to be
exercised so that exercise of executive power of States should not impede or
prejudice the exercise of the executive power of the Union. If the State fails
to carry out directions, the penalty is provided in Article 365. The President
may declare that the government of the State cannot be carried on in
accordance with the provisions of the constitution and enforce provisions of
Article 356.
4. Control over Legislative Powers of State-
(i) Legislation by Parliament on State Matters under Articles 249 and
252- Under Article 249, Parliament can legislate on any matter enumerated
in the State list if Council of States passes a resolution by 2/3d majority of
members present and voting that it is in the national interest. Under Article
252, if two or more States pass resolutions that a particular matter
enumerated in State List be regulated by Parliament, then Parliament shall
be competent. In pass legislation and such legislation shall be in force in
those states or in any other State which adopts it. In fact, these provisions do
not affect federal character of the Indian Union. Legislation under Article
252 is expressly authorized by states themselves and legislation under
Article 249 is also indirectly with the consent of the States, because Council
of States consists of the representatives, of states. Only twelve members are
nominated by the President and some members represent Union territories.
Moreover, such legislation is only a temporary measure.
(ii) Implementation of Treaties, Agreements and Conventions- For
implementing any treaty, agreement or convention with any foreign country
or decision of an international conference. Article 253 authorizes
Parliament to make Laws for the whole or part of the country. This
provision is necessary. It is the duty of the Union to maintain relations with
the foreign States. If implementation is left at the mercy of the States, many
international commitments would remain unimplemented or would be
delayed. Actually this happened in Canada during nineteen thirties.
(iii)Inconsistency of Union and State laws- Article 254 provides that if any
law made by State Legislature is repugnant to any provision of law made by
Parliament within its authority or to any provision of existing law with
respect to matters in Concurrent List, then the Parliamentary law or the
existing law, as the case may be, will prevail, It is immaterial whether
Parliamentary law is enacted before or after the enactment of the State law.'
(iv) Presidential assent to State legislation- Article 200 empowers the
Governor to reserve a Bill for consideration of the President who may either
give his assent or withhold it and require the Governor to send it back to the
Legislature with message. When again passed by the Legislature, it is again
sent for the consideration of the President. This provision is in most of the
cases a mere formality. In the case of Kerala Education Bill, however, the
Bill was returned for suitable amendments but before sending back, opinion
of the Supreme Court was obtained.
5. The Judiciary-
(i) Unified Judicial system- United States of America, Australia and some
other federations have double judicial system- federal courts and state
courts, but our constitution provides for unified judicial system like that of
Canada.
(ii) Appointment of Judges- Appointments of judges of the High Courts and
the Supreme Court are made by the President, who is also the executive head
of the Union Government Power of appointment, no doubt, carries some
influence with it but the constitution makers took sufficient precautions.
Once a Supreme Court or High Court Judge is appointed, he cannot be
removed except by the special procedure mentioned in Article 124(4), Nor
can his salaries or privileges be altered to his disadvantages. In Supreme
Court
Advocates on Record Association v Union of India,4 the Supreme Court has
held that no appointment of Judges of High Court or Supreme Court can be
made by the President except in conformity with the final opinion .of the
Chief Justice of India. This view has been affirmed by the Court in Special
Reference No. 7 of 19985.
6. Financial Control- By system of grants-in-aid, Centre can exercise a lot of
control over State activities. But this is not peculiar in India. This system is now
followed in almost all federations and is essential for cooperative federalism.
7. Emergency Provisions - When the proclamation of emergency is in operation,
Article 250 gives Parliament power to legislate in respect of matters allotted to
State Legislatures. The executive power of the Union extends to giving of
directions as to how the executive power of the State is to be exercised, and the
President may modify financial arrangements between Union and States. In
cases of failure of constitutional machinery in a State, Article 356 authorises the
Centre to assume all powers of the State Government. Similarly, in times of
financial emergency, Article 360 authorises Centre to give directions in
financial matters, and all money and financial Bills of the State may be required
to be reserved for consideration of the President. These emergency provisions
give almost complete control to the Centre over States but this is a temporary
phase for abnormal situations. As observed by Dwivedi J. in Keshavananda v.
4 (1993) 4 SCC 441.
5 AIR 1999 SCI
State of Kerala, 6when the proclamation of emergency is in force, the cardinal
principle of federation is merely in eclipse In other federations also in times of
war and emergencies wider powers are conceded to the centre to cope with the
situation.
8. Power of reorganization- Under Article 3, Parliament may by law form a new
State, increase of diminish the area of any State ad later its name and
boundaries. This is a very sweeping power given to the central legislative organ.
The very existence and identity of a State can be vanished by Parliament
unilaterally. Though certain checks on the exercise of this power are given in
the provision, yet if the Centre is adamant the States cannot prevent the
measure.
It is true that India was never intended to be a federation in the strict sense of the
term The framers were aware of the hardships that were faced by some
important federations during wars and even in peace time in carrying out
nationwide economic reforms or in implementing international agreements or
in checking centrifugal forces threatening the unity of the nation.
The Constituent Assembly purposely Substituted the word "union" in place of
"federation" in Article I of the Constitution to make it clear that federation was
not the result of an agreement by States as such no State has right to secede from
it, that the country is one integral whole and its people, single people living
under a single imperium derived from a single source. While adopting federal
system generally, the framers were keen to preserve the unity of the country and
therefore they included certain provisions, which are opposed to federal
principle, to meet certain exigencies. It is capable of functioning as a federation
6 AIR 1973 SC 1461,2003
as well as unitary system according to circumstances. In the Constituent
Assembly, Dr.Ambedkar remarked :
"All federal systems including American are placed in a tight mould of
federalism. No matter what the circumstances, it cannot change its form and
shape. It can never be unitary. On the other hand, the draft constitution (of
India) can be both unitary as well as federal according to the requirements of
time and circumstances.
5.2 DISTINCTIVE FEATURES - INDIA AND U.S.A.
The Constitutional system of India is basically federal, but of course, with striking
Unitary features.
1. There are many distinctive features of the Indian federal system. In United
States, there is dual citizenship. An American is a citizen of the United States
and also of the State in which he lives. In India, there is a dual polity but single
citizenship. To quote, " there is only one citizenship for the whole of India. It is
the Indian Citizenship. There is no State citizenship. Every Indian has the same
rights of citizenship, no matter in what State he resides".
2. Every State in the United States has the right to make or amend its own
Constitution. The Federal Government has not the power to change the
Constitution of any State. In India, no State has the power to amend its own
Constitution although the Federal Government has the power to amend the State
Constitution under certain circumstances. To quote, " the Constitution of Union
and of the States is single frame from which neither can get out and within
which they must work".
3. The residuary powers in India are given to the Union Government and the
Indian Parliament can make laws with regard to them. In United States, the
residuary powers are with the States.
4. Rigidity and legalism are considered to be the two evils of a federal polity. A
federal Constitution has to be a written Constitution, which is usually rigid.
Moreover, the people in a federal polity always talk in terms of legality or
illegality of a measure, irrespective of its merits. However, the Indian
Constitution have adopted certain methods to avoid the evils of rigidity and
legalism. It has provided a long list of Concurrent subjects. A large number of
provisions have been made which are to remain in force until Parliament
provides otherwise by law. Power has also been given to the Parliament to
legislate on matters in the State List under certain circumstances. This is so
when a subject assumes national importance. The same is the case when an
emergency is declared by President. The Centre can exercise powers within a
State with the consent of the State or State concerned. Greater facility is given
for the amendment of the Constitution than that given in foreign countries.
5. The Constitution becomes unitary in times of emergency. To quote, " all federal
systems are placed in a tight mould of federalism. In no circumstances can it
change its form and shape. It can never be unitary. On the other hand, the Indian
Constitution can be both Unitary as well as federal, according to requirement of
time and circumstances".
6. The Indian federation maintains unity in all basic matters. To quote Dr.
Ambedkar, " The Federation being a dual polity based on divided authority with
separate legislative, executive and judicial powers for each of the two polities is
bound to produce diversities in laws, in administration and in judicial
protection. Up to a certain point, this diversity does not matter. It may be
welcomed as being an attempt to accommodate the powers of government to
local needs and circumstances. But this diversity when it goes beyond a certain
point, is capable of producing chaos and has produced chaos in many federal
States".
7. The Indian 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
impediment by the other, with an over-riding power of the Union where it is
necessary in the public interest. It has a nice balance of jurisdictions which has
worked out successfully so far and it is hopes that it will continue to work so in
times to come with good sense prevailing in all States.
8. The Supreme Court of India and the High Court form a single integrated
judiciary having jurisdiction over all cases arising under various laws- Union,
State, Constitutional, Civil and Criminal. To eliminate diversity of laws, codes
of civil and criminal law are placed in the Concurrent List. To maintain
uniformity in administration, the Constitution provides that there shall be All-
India services recruited on all India basis which shall be common to the Union
and States.
a) In case of inconsistency between Union and State laws, the Union laws shall
prevail.
b) Laws passed by the State may be reserved for considerations of the President by
the Governor. Some of them have to be specifically reserved and some of them
cannot be even introduced or moved in the State Legislature without the
previous sanction of the President.
It should be noted that there is no clear- cut formula or guidelines to decide whether a
system is federal or not. In the Indian context, it can be said that Indian Constitution is
basically federal with striking unitary features and so has been the attitude of law courts
in India while interpreting the structure of the Indian Constitution. However, many
States are not satisfied with Centre-State relationship and have requested for a change
in the fundamental features of the system of governments.
However, the States, especially where the opposition parties or regional parties are in
majority remain unsatisfied with the present set up of distribution of powers between
the Centre and the State and force the Central Government to appoint Sarkaria
Commission in 1983 to review the distribution of powers between the Centre and the
State within the purview of the Constitution of India. Although Sakaria Commission
had submitted its report in 1987, the main recommendations of this Commission are yet
to be implemented.
CHAPTER-6
CONSTITUTIONAL PROVISIONS - MODIFICATION OF
FEDERAL PRINCIPLE IN THE INDIAN CONSTITUTION.
In the following constitutional provisions, it is pointed out that the Indian-Constitution
contains the modifications of the federal principle:
6.1 Parliament power to form New-States and 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.
6.2 Parliament's power to make law on State-matters:
Article 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 Article 249 does not place the states in a subordinate-position..
Article 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."
Article 251: Provides that Parliament have the power to make laws on State-matters
under the Article 249 (in national-interest) and Article 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.
Article 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.
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 Article 73
6.3 Administrative-relations between the Union and 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:
Article 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.
Article 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.
d) 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.
6.4 Distribution of Legislative-power between the Union & the states (Article 246)
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 7th
Schedule
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.
6.5 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 thp.t
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.
6.6 Emergency-provisions
Article. 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 Article. 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.
Article 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.
Article 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 President can issue necessary directions,
including order for the reduction of salaries and allowances of public-servants
belonging to union and 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.
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.
CHAPTER-7
JUDICIAL INTREPRETATION
The debate whether India has a 'Federal Constitution' and 'Federal Government' has
been grappling the Apex court in India because of the theoretical label given to the
Constitution of India, namely, federal, quasi-federal, unitary. The first significant case
where this issue was discussed at length by the apex Court was
1. State of West Bengal V. Union of India19
: 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 and other
properties vested in or owned by the state and the sovereign authority of states as
distinct entities was also examined. The apex 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 highlight 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. The Constitution is the
supreme document, which governs all the states. Secondly, the Constitution is liable to
be altered by the Union Parliament alone and 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 and national policies to be decided by the Centre. Lastly, as against a
federal Constitution, which contains internal checks and 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 and
executive power of the States are subject to the respective supreme powers of the
Union. Legal sovereignty of the Indian nation is vested in the people of India. The
political sovereignty is distributed between the Union and the States with greater
weight age in favor of the Union. Another reason which militates against the theory of
the supremacy of States is that there is no dual citizenship in India. Thus, the learned
judges concluded that the structure of the Indian Union as provided by the Constitution
one is centralized, with the States occupying a secondary position vis-a- vis the Centre,
hence the Centre possessed the requisite powers to acquire properties belonging to
States.
As against this opinion, was the judgment rendered by Justice Subba Rao, the great
champion of State rights. Justice Subba Rao was of the opinion that under the scheme
of the Indian Constitution, sovereign powers are distributed between the Union and the
States within their respective spheres. As the legislative field of the union is much
wider than that of the State legislative assemblies, the laws passed by the Parliament
prevail over the State laws in case of any conflict. In a few cases of legislation where
inter-State disputes are involved, sanction of the President is made mandatory for the
validity of those laws. Further, every State has its judiciary with the State High Court at
the apex. This, in the opinion of the learned judge does not affect the federal principle.
He gives the parallel of Australia, where appeals against certain decisions of the High
Courts of the Commonwealth of Australia lie with the Privy Council. Thus the Indian
federation cannot be negated on this account. In financial matters the Union has more
resources at its disposal as compared to the states. Thus, the Union being in charge of
the purse strings, can always, persuade the States to abide by its advice. The powers
vested in the union in case of national emergencies, internal disturbance or external
aggression, financial crisis, and failure of the Constitutional machinery of the State are
all extraordinary powers in the nature of safety valves to protect the country's future.
The power granted to the Union to alter the boundaries of the States is also an
extraordinary power to meet future contingencies. In their respective spheres, both
executive and legislative, the States are supreme. The minority view expressed by
Justice Subba Rao has consistency with the federal scheme under the Indian
Constitution. The Indian Constitution accepts the federal concept and distributes the
sovereign powers between the coordinate Constitutional entities, namely, the Union
and the States.
The next landmark case where the nature of the Indian Constitution was discussed at
length was
2. State of Rajasthan V. Union of India.7 The learned judges embarked upon a
discussion of the abstract principles of federalism in the face of the express provisions
of the Constitution. It was stated that even if it is possible to see a federal structure
behind the establishment of separate executive, legislative and judicial organs in the
States, it is apparent from the provision illustrated in Article 356 that the Union
Government is entitled to enforce its own views regarding the administration and
granting of power in the States. The extent of federalism of the Indian Union is largely
watered down by the needs of progress, development and making the nation integrated,
politically and economically co-ordinated, and socially and spiritually uplifted. The
Court then proceeded to list out some of the Constitutional provisions which establish
the supremacy of the Parliament over the State legislatures.
7 AIR 1977 SC 1361
In conclusion the apex Court held that it was the 'prerogative' of the Union Parliament
to issue directives if they were for the benefit of the people of the State and were aimed
at achieving the objectives set out in the Preamble. The issue of federalism was carried
forward in:
3. S.R.Bommai V. Union of India.8 Four opinions were rendered, 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 federalism. The essence of the
federation is the existence of the Union and the States and the distribution of powers
between them. The significant absence of expressions like 'federal' or 'federation' in the
Constitution, the powers of the Parliament under Articles 2 and 3, the extraordinary
powers conferred to meet emergency situations, residuary powers, powers to issue
directions to the States, concept of single citizenship and the system of integrated
judiciary create doubts about the federal nature of the Indian Constitution. Thus, it
would be more appropriate to describe the Constitution of India as quasi- federal or
unitary rather than a federal Constitution in the true nature of the term. As opposed to
this, Justice Sawant and Justice Kuldip Singh regarded democracy and 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. The
learned judges elaborated upon the scope and justified use of the power conferred on
the president by Article 356 which will not restrict the scope of the independent powers
of the respective States for" every State is constituent political unit and has to have an
exclusive Executive and Legislature elected and constituted by the same process as the
Union Government."
8JT(1994) 2 SC 215, (1994) 3 SCC 1, AIR 1994 SC 1918
In the opinion of Justice Ramaswamy, the units of the federation had no roots in the
past and hence the Constitution does not provide mechanisms to uphold the territorial
integrity of the States above the powers of the Parliament. The end sought to be
achieved by the Constitution makers was to place the whole country under the control
of a unified Central Government, while the States were allowed to exercise their
sovereign powers within their legislative, executive and administrative powers. The
essence of federalism lies in the distribution of powers between the Centre and the
State. Justice Ramawamy declared the Indian structure as organic federalism, designed
to suit the parliamentary form of Government and the diverse conditions prevailing in
India. Justice Jeevan Reddy and Justice 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 this factor does not
reduce the States to mere appendages of the Centre. Within the sphere allotted to them
the states are supreme.
4. Keshvananda Bharti v. State of Kerala22
The basic structure this case, some of the Judges in full Constitutional Bench expressed
federalism as one of the basic features of the Indian Constitution.
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"
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.
CHAPTER- 8
NEW TRENDS IN FEDERALISM
8.1 COOPERATIVE FEDERALISM
Though Indian Constitution has chosen to adopt federal system of government, yet the
constitution does not establish federation in the real sense of competitive federation
where units and centre are co-ordinate and none of the two depends upon the other. As
the new trend in all federations is to have a sort of co-operative federalism with
somewhat dominating powers to the centre, the farmers of the Indian Constitution have
also sought to provide for co-operative federalism. Competitive federalism is now
unworkable because of fast industrial and economic development, trade and commerce,
fast means of transport, defence problems and increasing competition in business and
welfare programmes which require huge expenditure.
The framers of the Indian Constitution intended to provide a federal Constitution with
strong Central Government. Actually our Constitution provides for cooperative
federalism. Various provisions have been incorporated in the Constitution to promote
cooperation among the various governments. This is called cooperative federalism.
Austin has rightly said that if the Indian Constitution can be called federal, it can be
described as 'cooperative federation'. In short, the following factors are responsible for
co-operative federalism:
1. Development of modem means of communication,
2. Expanding horizons of trade and commerce;
3. Defence from external aggression and need for modern sophisticated arms and
ammunitions:
4. Welfare state.
In view of these changed conditions, the Constitution makers have made various
provisions in the Constitution itself to ensure working of cooperative federalism in
India In the Indian Constitution, following provisions seek to establish cooperative
federalism:
1. Use of Legislative powers - Though under Article 246 read with three lists of
the VII Schedule there is detailed distribution of powers between the Union and
States, yet both Union and States have been given power to legislate on matters
enumerated in List III, i.e., Concurrent List The State Legislature may regulate
the local aspects of the subjects mentioned therein unless the Parliament
chooses to cover the whole field. Article 249 provides that when the Council of
States passes a resolution by two-third majority of the members present and
voting that it is necessary or expedient in the national interest that Parliament
should male law on any matter enumerated in State List. It shall be lawful for
Parliament to make law for the whole or any part of the territory of India with
respect to such matter while resolution is in force. Such resolution can remain in
force for a maximum period of one year. Its operation can be extended by fresh
resolutions for one year so long as necessary.
Under Article 252 if legislatures of two or more States pass resolutions that a
particular matter in State List should be regulated by Parliament, it would be
lawful for Parliament to pass an Act for regulating such matter.
2. Co-operation in Administrative relations- According to Articles 73 and 162,
executive powers of the Union and States are co-extensive with legislative
powers yet both the Articles provide that in any matter with respect to which
both Parliament and State Legislatures have power to make law. States shall
have executive power subject to provisions of the Constitution and law made by
Parliament. Articles 256 and 257 empower Union executive to give directions
to State executive. Under Article 258 Centre can, with the consent of the
Governor, assign its functions to State and similarly under Article 258-A, the
States can, with the consent of the Government of India, assign their functions
to the Central executive.
3. Full faith and credit to public acts, records and Judicial proceedings-
Article 261 provides that full faith and credit shall be given throughout the
territory of India to public acts, records and judicial proceedings of the Union
and of every State. This provision is similar to that contained in Article IV of the
U.S Constitution.
4. Resolution of Inter-State water disputes- Article 262 authorises Parliament
to make laws to provide for adjudication of any dispute or complaint with
respect to the use, distribution or control of waters of any inter-state river or
river valley
5. All India Services- Article 312 provides that if the council of States declare by
a resolution supported by not less than two-thirds of members present and
voting that it is necessary or expedient in the national interest to create one or
more all India Services, Parliament shall be competent to make law to provide
for such all India Services.
6. Exemption from taxes- Article 285 provides for exemption of properties of the
Union from State taxes arid similarly Article 289 exempts State properties from
Union taxes.
7. Financial co-operation- The whole scheme of distribution of taxing powers
between the Union and the States is based on co-operation between the two.
i. Some taxes are levied by the Union but are collected and appropriated by
the States, e.g., such stamp duties and such excise duties on medicinal
and toilet products as are mentioned in the Union List.9
ii. Some taxes are imposed and collected by the Union but are assigned to
States, such as tax on sales and purchases where such sale or purchase
takes place in the course of inter-State trade or commerce.10
iii. Some taxes are levied and collected by the Union but are distributed
between the Union and the States, such as taxes and duties mentioned in
the Union list, which are not mentioned in Article 268.11
ii. Apart from these provisions, Article 275 also makes provision for grants-
in-aid to States.
8. Finance Commission- Article 280 provides that the President shall, within two
years from the commencement of the Constitution and, thereafter at the
expiration of every fifth year or at such earlier time as. he considers necessary,
by order constitute a Finance Commission which shall consist of a Chairman
and four other member to be appointed by the President.
It shall be the duty of the Commission to make recommendations to the President as to-.
a) distribution of net proceeds of taxes between the Union and States,
b) principles which should govern grants-in-aid to states,
c) measures needed to augment the Consolidated Fund of a State to supplement
the resources of Panchayats in the States on the basis of recommendation made
by the State Commission;
9 Art. 268
10 Art. 269
11 Art. 270.
d) Measures needed to augment the Consolidated Fund of a State to supplement
the resources of municipalities in the State on the basis of recommendations
made by the State Finance Commission.
e) Any other matter referred to by the President.
9. Planning Commission- There are certain extra-constitutional bodies which
deal with the co-ordination between the Union and States. The Planning
Commission is the most important such body. However, in the Concurrent List,
entry. 20 provides for economic and: social planning. Being in Concurrent List
both Parliament and State Legislatures are competent to make law providing for
Planning Commission. States have also constituted Planning Commission.
10. National Development Council- National Development Council was
constituted in 1952. Prime Minister is the Chairman of the Council. All
members of Central Cabinet, expert members of Planning Commission, Chief
Minister of all states and representatives of Union Territories are member of the
Council.
The Council was constituted mainly to establish rapport between Planning
Commission and States. Its functions are to prepare directives for making
national plans, to discuss the plans prepared by the Planning Commission and
make estimates of resources for plans and to suggest for their augment.
11. Zonal Councils.- For the first time Zone Councils were constituted
during the regime of Pt. Jawahar Lai Nehru at the instance of Home Minister
Pandit Govind Bailabh Pant under the States Re-organisation Act, 1956. But
during the regime of Mrs. Indira Gandhi they remain completely neglected. The
functions of Zonal Councils are almost same as mentioned in Article 263 (c).
Therefore, Sarkaria Commission recommended their constitution under Article
263 so as to provide them Constitutional Status. Their reorganisation is also
necessary for the reason that Home Minister is their Chairman. He has no time
to preside over these councils. There are six. Zonal Councils.
1. Northern Zonal Council
2. Southern Zonal Council
3. Eastern Zonal Council
4. Western Zonal Council
5. Central Zonal Council
6. North-Eastern Zonal Council
Five Zonal Councils (Northern, Southern, Eastern, Western and Central) were
constituted by States Reorganisation Act, 1956 and North- Eastern Council was
constituted by the North- Eastern Council Act, 1971
12. Authority under Article 307- Article 307 provides that Parliament may by law
appoint such authority as it considers appropriate for carrying out the purposes
of Articles 301, 302, 303 and 304. In U.S.A., Inter-State Commerce
Commission was constituted m 1887 In Australia, too, Inter- State commission
was constituted in 1912 under Sections 101 and 103 of the Australian
Constitution but the High Court of Australia held in New South Wales v
Commonwealth,27
that Judicial powers could not be conferred on such
commission in view of Strict separation of powers under the constitution. As it
could not be effective without such powers, it was allowed to lapse In India no
such commission has been constituted but the Sarkaria Commission in its report
had recommended its constitution.
13. Inter-State Council- Article 263 authorises the President to establish an
inter-state Council and to define the nature of duties to be performed by it and to
make provisions for its organization and procedure Thus, this body will enjoy
constitutional status Sarkaria Commission had also recommended its
constitution and organization12
. As a consequence of recommendations of the
Sarkaria Commission the Government of India decided to constitute Inter-State
Council. Inter- State Council Order, 1990 provided that the Prime Minister shall
be the President of the Inter-State Council and the following shall be members
of the Council-
a) Chief Ministers of all States;
b) Administrators of Union Territories not having Legislative Assembly,
c) Six Ministers of Central Cabinet nominated by the Prime Minister.
The Order also provides that there shall be at least three meetings of the Council in a
year.
8.2 Recent developments in Indian Federalism13
1. Firstly, the 73rd
and 74th
amendments of the Constitution in 1992 have created a
third-tier of local-governments i.e. the Panchayats and 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. Bommai v. Union of
India emphasized the federal-character of the constitution and has imposed
several procedural restraints on the exercise of power by the centre.
12
Sarkaria Commission Report (1988) Para 9.6.01- 9.6.06 13
www.legalserviceindia.com
3. In quick succession, once in 1987 and again in 1998, the President has asked the
central-Cabinet to reconsider its advice to impose President's 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 states, the central government
has always to seek the cooperation of the states.
5. 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.
6. 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.
CHAPTER-9
CONCLUSION AND SUGGESTIONS
Dr. B.R. Ambedkar, one of the chief architects of the Indian Constitution said: "Our
Constitution would be both Unitary as well as Federal according to the requirements of
time and 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
and constant adjustments from time to time in the light of the contemporary needs the
demands being made on it.
For making Indian Federalism more robust and viable, the differences between the
centre and the state must be sort out so that India may successfully meet the
great-challenges of difference, external and internal -security and socio-economic
development. It is very necessary that neither the federal set-up becomes unitary nor
that it becomes too lose and weak, affecting the unitary and integrity of the nation.
As India is a developing nation, federal government is necessary for it to bring
progress. India is a country with unity in diversity. There are so many states that are
unique in their cultures and traditions and still feel strongly the oneness among them.
As each state has its own way of lifestyle and culture, it is important to follow federal
form of government in India. As also the Constitutional laws of India suit the federal
governance, India requires federal ruling to maintain national integration. Indians are
having lot of differences in their language, culture or lifestyle and hence live as
different states. But all Indians feel that they are all one and belong to only one country.
Therefore, India deserves to have Federal Government.
It is time to undertake a study of Indian Federalism with a view to evaluate the trends,
frictions and difficulties which have developed in the area of inter-governmental
relations and to seek to evolve ways and means to meet the challenging task of making
the Indian federation a more robust, strong and workable system so that the country
may meet the tasks of self- improvement and development.
The responsibility lies on not only the jurists and policy framers, but also the citizens of
the country to work in a harmonious manner for the development of the country.
BIBLIOGRAPHY
1. List of sources
list of books referred:-
Indian Constitutional law by Prof MP Jain, 6lh
Edition 2010, published by Lexis
Nexis Butterworths, Wadhwa Nagpur.
Constitutional Law of India by Prof. G.S. Pande, Tenth Edition 2007, published
by M/s University Book House (P) ltd.
Introduction to the Constitution of India by Dr. Durga Basu, 19th
Edition
Reprint 2006, published by Wadhwa and Company Law Publishers
Constitutional law of India by V.D. Mahajan, Seventh Edition 1991, published
by Eastern Book Company, Lucknow
Constitutional Law of India by Prof. Narendra Kumar, published by Allahabad
law Agency
2. List of websites referred :-
www.wikipedia.com
www.legalserviceindia.com
www.ebc-india.com
www.thehindu.co.in
3. List of cases referred:-
Keshavananda v. State of Kerala, AIR 1973 S.C. 1461.
State of Rajasthan v. Union of India, AIR 1977 S.C. 1361.
Satpal v. State of Punjab, (1982) 1 S.C.C. 12, 16.
Pradeep Jain v. Union of India, AIR 1984 S.C. 1420, 1427.
State of West Bengal v. Union of India, AIR 1963 S.C. 1241
In re Under Article 143, AIR 1965 S.C. 745, 762
Supreme Advocates on Record Association v. Union of India, (1993) 4 S.C.C.
441
Special reference of No.l of 1998, AIR 1999 S.C. 1
S.R.Bommai v. Union of India, J.T. (1994) 2 S.C. 215, (1994) 3 S.C.C. 1, AIR
1994 S.C.1918
2 Constitutional law of India by Rajendra D. Anbhule, 2010, 2
nd Edition.
6 AIR 1963 SC 1241
8 AIR 1973 SC 1461.
11 AIR 1984 SC 1420 1427.
13 AIR 1984 SC 1420, 1427
15 AIR 1984 SC 1420, 1427.
23 Constitutional law of India by Kailash Rai. Pg 46