SEMI FEDERAL STRUCTURE OF THE INDIAN CONSTITUTION

SEMI FEDERAL STRUCTURE OF THE INDIAN CONSTITUTION

SEMI FEDERAL STRUCTURE OF THE INDIAN CONSTITUTION

Introduction

According to the traditional classifications, the government is either divided into a federal or unitary form on the basis of nature of relations between the national government and regional government.

The term “federation” is derived from the Latin foedus, which means, treaty or agreement.

Federalism is a method of dividing the powers so that the central and local governments are each within a domain, harmonizing and autonomous, whereas Unitary form of government is the converse of the federation which means all the powers are vested in the hands of the central government and here centre is a reservoir of all state powers. Some of the federal constitutions are in the USA. Australia Malaysia, Canada, Germany etc.  In unitary form laws made by the centre are equally enforced in rest of state without and territorial distinction whereas in the federation form of government nature of law varies from state to state.

 In a unitary form of government, it is not mandatory to have a written constitution like in Britain there is the unwritten constitution; whereas in a federal form of government, there is a written form of constitution. The Constitution can be rigid (like in France) or flexible (like in Britain) in a unitary form of the government whereas in a federal form of government constitution is rigid.

 Indian Federalism  

In India federalism was introduced by the government of India Act 1935. The framers of the constitution gave federal look to the constitution of India considering the religious, diversity, population, size and other characteristics of India.

Dr BR Ambedkar, the chairman of the drafting committee said that

I think it is agreed that our constitution notwithstanding the many provisions which are contained in it whereby the centre has been given powers to override the provinces (states) nonetheless, is a federal constitution.”

Federation sui generis

The Indian model of federalism is called the quasi-federal system as it contains major features of both a federation and union. It can be phrased as ‘federation sui generis’ or federation of its own kind.

Indian constitution is of a federal type where there are two-tier government systems, with the central government at one level and the state government at other levels. The constitution of India marks the sphere of action of each level of government by distributing the legislative administrative and financial powers between central and state.

 Reason of federal system

There are broadly two reasons for adopting the federal system in India. These are

1. The large size of the country– India has a large population due to which it becomes difficult for a person to keep a check on the whole country.

2. Cultural diversity– Every state in India has a different culture, the language so for proper and good governance in the country federal system is required in India. Every state has a representative who can govern the state more ethically and he can represent a particular state in front of the central government with more zeal

In Indian constitution word ‘union of state’ is used instead of ‘federation’ because Indian federation is not the result of an agreement among the states because and states have no rights to secede from the federation.[1]

Essential Characteristics of the Federal Constitution

According to A.V. Dicey, “there are three essential characteristics for the constitution to become completely developed the federal constitution that is the distribution of power among union another reason is the supremacy of the constitution and authority given of court by the constitution for interpreting it.”[2]

Explanation

1. Distribution of powers

Powers are divided between union and state government according to the list mentioned in schedule 7 of the Indian constitution. Schedule 7 distributes the power between union and state. Both union and state government operate their jurisdiction independently

2. Supremacy of constitution

The Indian constitution is the paramount law of India. All the acts performed by centre or state are to be done according to the constitution otherwise it is declared invalid by the Supreme Court or high court through their power of judicial review. Thus legislative executive and judiciary at both state and centre level have to operate within the jurisdiction as mentioned in the Indian constitution.

3. Authority of courts

Supreme Court is the guardian of the Indian constitution and it maintains its supremacy through judicial review. Article 32 of the Indian constitution provides the power to the Supreme Court for judicial review and it is the heart and soul of the Indian constitution.  Article 226 provides the power to the high court for judicial review. Article 13 of the constitution provides judicial review of pre and post-constitutional laws.

Other features that make India a federal constitution

Essential features that make India a federal constitution-

Single citizenship

Another feature that makes India a federal country in nature is the written constitution. Indian the constitution is the lengthiest and the bulkiest constitution in the world which clearly defines everything from rights to remedies. This strengthens the federal nature of the country and assures security to the state and citizens. Though the country and the people are divided into different states for convenience of administration but the country is one integral whole, its people living under a single imperium derived from a single source.[3]

 Dual polity

It means that the central government and the state government has some powers as mentioned in the constitution like the central government has the power to take decisions relating to defence, foreign affairs, currency. In these affairs, sole power is in the hand of the central government and state government cannot interfere in all these matters likewise there are some powers in the hand of the state government in which central the government cannot interfere like matter related to agriculture, health, public order.

Written constitution

Indian constitution is the bulkiest, lengthiest and supreme constitution. It defines the power and functions of state and central government. Originally it had 395 Articles (22 parts) and 8 schedules. Now it has 470 Articles (divided into 25 parts) and 12 schedules.

Rigid constitution The rigidity of the constitution is secured by amendment procedure. It is difficult to amend the constitution the basic structure of the constitution cannot be amended. Till now (2020), 104 amendments are made in the Indian constitution but the basic structure is not amended after the judgment in the case of Kesvananda Bharati v. The State of Kerala.[4]

Independence of Judiciary

Constitution establishes an independent judiciary as there are many provisions like the security of tenure to judges, fixed service conditions to make the judiciary independent of government.  

Bicameralism

Indian constitution provides for a bicameral legislature consisting of Lok sabha and Rajya sabha. Lok sabha represents the people of India as a whole whereas Rajya sabha represents the state of Indian federation.

                   Unitary Features of Indian Constitution

Some scholars hesitate to call Indian constitution a truly federal constitution as there are certain circumstances where the constitution empowers centre to interfere in the state matter thus violate the federal principle.

Explanation                                             

Circumstances because of which India is not considered complete federation are 

Strong Center

Though the division of power is between the centre and state but more powers are in the hand of the centre.  Union list contains more subjects as compared to state list also more important subjects are mentioned in the union list. Centre has predominating authority over the concurrent list.

 Appointment of Governor

 According to article 155 of the Indian constitution governor of the state is appointed by President and the governor is answerable to the president. The governor is empowered to reserve some bills passed by the state legislature for consideration of the president. President can withhold his assent to such bills not only for the first instance but also for the second instance. President enjoys absolute veto over state bills. President has the power to veto some state laws like article 200,201,288(2), 304(b) etc.

Case Kerala Education bill – In this case, the president has vetoed the state laws. In the real scenario, there are not many cases where the president has vetoed the state laws. In this case also centre obtained the advisory opinion of the Supreme Court before sending it back to the state legislature for suitable amendments.[5]

Single and flexible Constitution

 Generally, states have the right to make their own constitution but in India, no such power is given to states. The process of amending the constitution in India is much easier as compared to other federations. The bulk of constitutional amendments can be made by parliament by simple majority or special majority.

National Interest

Parliament has the power to legislate in the national interest. Under Article 249 of the Indian constitution, parliament is empowered to make laws with respect to every matter mentioned in the state list. A necessary condition is that Rajya sabha has to pass the resolution with 2/3rd majority that it is necessary for the national interest. It should be noted that this power is given to parliament by the council of state (Rajya Sabha). Thus the constitution is amended by agreement of the majority of states.[6]

Power to form a new state and alter its boundaries

According to Article 3 of the Indian constitution, the parliament of India may form a new state. It may increase or decrease the area of any state. It may also alter the boundary or name of any state. The provision of Article 3 takes into account the fact that the constitution contemplated readjustment of territories of constituent states which might arise in future.[7]

Emergency provisions

 The constitution envisages three types of emergencies first is National Emergency[8]which is caused due to war or external aggression or armed rebellion. Second is state emergency which is caused due to failure in constitutional machinery.[9]The third is a financial emergency.[10]When the proclamation of all these emergencies is done then the normal distribution of power between the central and state is changed. Here parliament has the power to make laws in respect of any matter mentioned in the state list. Thus the basic and fundamental feature of the federal constitution that is the distribution of power between centre and state is completely suspended.

Integrated audit machinery

Controller and auditor general do the audit of both centre and state but he is appointed by the President of India without consulting states.

Single citizenship

In spite of dual polity Indian constitution has adopted a single citizenship system. All citizens of different religion, having different culture and language living in a different part of states enjoy the same right all over the country.

From the aforesaid features, it can be clearly said that the Indian constitution is not a truly a federal constitution like the US, Switzerland and Australia. We can say the Indian constitution is a quasi-federal constitution. In some situations like wars, international crises, during emergencies, the concept of federalism undergoes change only for some period.

In the case State of Rajasthan v. Union of India[11]it was said that Indian Union is federal. But the extent of federalism in it is watered-down by the needs of progress and development of a country which is done for the upliftment of the country. With such a system of federalism, the States cannot stand in the way of legitimate and comprehensively planned development of the country in the manner directed by the Central Government.

                    Critical Evolution of Federal System

If India is federal then the state must be stronger and states must be autonomous but the arrangement made by framers of the constitution of India a federation with a strong centre. The word federation is nowhere mentioned in the Indian constitution.

According to article1[12]of the Indian constitution, it is the union of states. According to Dr B.R. Ambedkar, the phrase union of the state is mentioned instead of the federation of state because Indian federation is not a result of an agreement among the states like American federation. He said that union is neither league of states, united in loose relationship nor agencies of the union, deriving powers from it. Union and states are created by the constitution and thus they derive their respective authority from the constitution.  Indian constitution has 7 federal features and 14 unitary features.  India follows the model of Canada where there is a federation with a strong centre.

Need to critically evaluate Indian federalism is there because Indian federalism has deviated from the regular federal system.

It deviated by incorporating many unitary features. These 14 unitary features challenge the federal character of the Indian constitution.

Critical evolution of the nature of Indian federalism

In two forms critical evolution of nature of Indian federalism was done, one by constitutional experts and another by judicial cases.

Explanation

 Constitutional experts

 According to K.C. WheareIndian constitution is Quasi-federal. He observed that the Indian union is a unitary state with subsidiary federal features rather than a federal state with unitary features.[13]

 According to K Santhanam, there are two factors due to which the Indian constitution looks like a unitary state. First is the domination of central government in financial matters(sphere)  is tilting the power towards the centre and the second factor is the role of planning commission (now replaced by Niti Ayog) where state government needs the approval of Niti Ayog to implement any plan in their state.

 According to American administrative thinker Paul Appleby, Indian constitution is extremely federal and only in the case of emergencies and in extraordinary conditions it becomes unitary otherwise, it remains federal.

Granville Austin said that the Indian constitution is cooperative federalism that is for implementing any policy made by parliament there is a requirement of cooperation between the centre and state. For the ratification of any bill approval of both centre and the state is required.

Judgments

Case Laws

In case State of West Bengal v Union of India[14]Supreme Court held by the majority that it is not a truly federal. The issue in this case, was the exercise of sovereign powers by the Indian state. The basis of the distribution of powers between the Union and the States are the powers concerned with the regulation of local problems are vested in the States especially those powers which tend to maintain the economic and commercial unity of the country is given to the Union. In this case, it was held that the Indian Constitution is not completely federal.

Pradeep Jain V. Union of India[15]

In this case, it was held that India is not a federal state in the traditional sense but in the practical sense it is a federal state with some unitary characteristics.

Ganga Ram Moolchandani v. State of Rajasthan[16]

In this case, the Supreme Court restated that the Indian constitution is federal in form and it is marked by the traditional features of a federal system, which includes supremacy of the Constitution, division of the power between the Union and States and independence of the judiciary.

S.R. Bommai v. Union of India[17]

In this case, the Supreme Court held that the Indian constitution is the federal and characterized federalism as its basic feature. It was said that though under the scheme of the Indian constitution, greater power is conferred upon the centre vis-à-vis the centre does not mean that the state is an addendum of the centre. The state has an independent constitutional existence. During the time of emergency and some other eventualities, their power is overridden by the centre is not destructive of the federal feature of the constitution. It was said that they are the exception to the rule and exceptions are not rule.

                Recent challenges faced by Indian federalism

Due to the quasi-federal structure of Indian constitution, many conflicts arose in India.

Regionalism India is known for its religious diversity and socio-economic culture. But nowadays regionalism is prevailing over tradition and culture these days. There is an increase in demand for creating new states in India like in 2014 Telangana was formed and aggressive regionalism is increasing like fourfold division of Uttar Pradesh which is posing a threat to the federal structure of India.

100th Amendment of the Indian Constitution was related to land boundary agreement between India and Bangladesh where land was transferred to Bangladesh and it created a serious threat to federalism in India.

 Introduction of Goods & Services Tax through the 101st amendment also created a problem in the centre-state relationship. Here supporters of GST argued that states should also levy taxes under it.

Jammu and Kashmir – Article 370 which provided special status to Jammu and Kashmir was abolished by the central government and this thus resulted in cementing of centralized force and thus created dissatisfaction among the state and centre towards the federal character of Indian polity. It brought the state less than one umbrella which took India towards unitary form.

  Conclusion

India is the country with 2nd largest population in the world thus it has people with different religions so for the proper functioning of the country and for safeguarding the interest of all people unitary form of government is required but also India is the 7th largest country in the world so for maintaining unity unitary form of government is required.

Due to the diverse structure of India, it follows the quasi-federal form of government which includes features of both federation and unitary form. Generally, India follows the federal form of government where power is divided among centre and state but during the time of emergency or any contingencies, India follows the unitary form of government. It is the merit of the Indian constitution that it visualizes the contingencies and accordingly gives power to the centre to take important decisions. The constitution by adapting itself to changed circumstances strengthens the government to overcome the crises.

  States in India are autonomous but in order to avoid misuse of powers, the centre is provided with some powers to control the functioning of the state. However the centre has more power in India, intergovernmental cooperation is sought to be promoted within the constitutional framework of India. The state is not dependent on the centre and in normal conditions centre cannot intrude. The Indian constitution-makers defined the Indian federal structure not only by considering theoretical features but also considering practical features of federalism. Thus the Indian constitution, therefore, constitutes a new bold experiment in the area of federalism. Indian constitution is neither federal nor unitary it is the combination of both thus more modified and flexible as compared to other countries. Also, an independent judiciary is there to check the proper functioning of government. Thus the Indian constitution is quasi-federal which safeguard the interest of people and ensures national unity and growth.

                             Bibliography

1. M Laxmikant, Indian polity, “Critical evolution of the federal system” 6th edition, McGrew Hill Education (India) private limited, 2019, 319.

2. MP Jain, Indian Constitutional Law, 8th edition, LexisNexis, “Federal constitution”, 2019, 26.

3. Dr J.N. Pandey, Constitutional law of India, 55th edition, Central Law Agency, “Characteristics of Federal Constitution”, 2018, 18.

4. V.N. Shula, Constitution of India, Eastern Book Company, 5th edition, 1969, 40.


[1]Constituent Assembly Debates, Volume VII, P.43.

[2]A.V. Dicey, Introduction to the Study of the Law of the Constitution, 7th ed. (London: Macmillan, 1908) at 140.]

[3]A.V. Dicey, Introduction to the Study of the Law of the Constitution, 7th ed. (London: Macmillan, 1908) at 140.

[4] Kesvananda Bharati v. State of Kerala, (1973) 4 SCC 225.

[5] Kerala education bill, AIR 1958 SC 956.

[6]INDIA CONST. art. 249.

[7] INDIA CONST.  art. 3.

[8]INDIA CONST. art. 352.

[9] INDIA CONST. art. 356.

[10] INDIA CONST. art. 360.

[11]State of Rajasthan v. Union of India, 1977 AIR 1361.

[12] INDIA CONST. art. 1.

[13] K.C. Wheare, Federal Government, 11(London: Oxford University Press, 4th ed.).  1963.

[14] State of West Bengal v Union of India, AIR 1963 SC 1241.

[15] Dr Pradeep Jain Etc v. Union of India And Ors.1984 AIR 1420, 1984 SCR (3) 942.

[16] Ganga Ram Moolchandani v. State of Rajasthan & Ors [2001] Insc 324 (17 July 2001).

[17] S.R. Bommai v. Union of India (1994).