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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 1.2 1.3 1.4 1.5 1.6

AIMS AND OBJECTIVE OF REASEARCH RATIONAL AND SIGNIFICANCE OF STUDY HYPOTHESIS STATEMENT OF PROBLEM SCOPE OF WORK RESEARCH METHODOLOGY

CHAPTERISATION CHAPTER-2 : MEANING AND CONCEPTUALIZATION OF FEDERALISM


2.1 2.2 2.3 2.4

Meaning of Federalism Definition of Federalism Essential Features of Federalism Traditional and Modern Approach

CONSTRUCTIONAL PROSPECTIVE CHAPTER-3 :NATURE OF INDIAN FEDERAL SYSTEM


5.1 5.2

Indian Constitution- federal or unitary 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 6.3 6.4

Parliament's power to make law on State matters Administrative relations between Union and States Distribution of Legislative Power between the Union and the States

(Art.246)
6.5 6.6

residuary powers of Legislation (Art.248) Emergency provisions - Provision on federalism, Effect of Emergency

power.

CHAPTER-7 JUDICIAL INTERPRETATION

CHAPTER-8
8.1 8.2

Cooperative Federalism in India 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 METHODOLOGYMethodology 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 governmentsCentral 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 technologicaldevelopments, 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 Courts 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) (ii) administrative co-operation between central and regional governments, 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 3

AIR 1963 SC 1241 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 5

(1993) 4 SCC 441. 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

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 AllIndia 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 List III The Concurrent List 7th Schedule

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.

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."

JT(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 Indianconstitution 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 existingprovisions 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 proceedingsArticle 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 grantsin-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;

Art. 268 Art. 269 11 Art. 270.


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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 Councila) 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 13

Sarkaria Commission Report (1988) Para 9.6.01- 9.6.06 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

Constitutional law of India by Rajendra D. Anbhule, 2010, 2nd Edition. AIR 1963 SC 1241 AIR 1973 SC 1461. AIR 1984 SC 1420 1427. AIR 1984 SC 1420, 1427 AIR 1984 SC 1420, 1427. Constitutional law of India by Kailash Rai. Pg 46

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