Nature of the Federal System I

“Article 1(1) “ – ‘India that is Bharat, shall be a Union of States’
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Dr. Ambedkar – “Although its Constitution maybe Federal in structure, the word ‘Union’ is used to provide following advantages: 1. Indian federation is not the result of an agreement by the units 2. The component units have no freedom to secede from it ➢ Different types of federal constitutions in the modern world  No agreed definition of a Federal State  Always compared with the model of United States (1787)  Only the Constitutions of Switzerland and Australia confirm to United States model closely  So the questions of decisions are:  Whether unitary or federal  Whether basically unitary or federal  Federal with unitary characteristics  How many federal features Indian constitution features basically Federal with Unitary

Essential features of federal policy 1. Dual government 2. Distribution of powers 3. Supremacy of the Constitution 4. Authority of courts Above features existing in Indian Constitution Peculiar features of Indian Federalism 1. Mode of Formation  American type –> Voluntary agreement between a number of Sovereign and Independent States  Canadian type –> Not formed out of separate independent existence  India –> Provincial governments were virtually the agents of Central Government deriving powers of delegation from centre  Government of India Act, 1935 – set up a federal system Similar to that of Canada – “By creating autonomous units and combining them to a Federation by one and the same act”
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 


Like in America, there is no agreement of sovereign States Our constitution is the result of Constituent Assembly represented by the people of India Progress has been from unitary to federal During British rule, they lacked ‘Federal Sentiment’ and with lapse of British crown, the States acceded to dominion of India Credit to the Constitution makers – gave equality of status to the provinces

2.

Position of States in Federation  USA –> Federation of Sovereign States and therefore reluctant to give up their sovereignty –> State rights  India –> No such need as they were not Sovereign States a) USA –> residuary powers vest in States India –> residuary powers vest in Union (Canada) b) USA –> drew up constitution of national government India –> Constitution of State also except Jammu and Kashmir c) USA –> amendment subject to State India –> States need not be consulted d) USA and Australia –> lack of central control over State legislation and administration India and Canada –> Union control over State legislature and executive Eg. Governor of State appointed by President State legislation can be vetoed by President e) The American Federation described by its SC as follows: “An indestructible Union composed of indestructible States”  Results in two propositions i. Union can’t be destroyed by any State seceding from it  Accepted by Indian constitution ii. United States Union has no power to redraw its States  India has deviated – Article 4(2)  Indian States not indestructible  States Reorganisation Act, 1956 – number reduced from 27 to 14
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f) g)

Subsequently formation of new States: Gujarat Nagaland Haryana Meghalaya Himachal Pradesh Manipur Tripura USA –> equality of State representation in Union India –> not there India –> Innovative system Inclusion of Sikkim as Associate State initially

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Mode of Polity  In USA: a) Dual polity b) Dual citizenship Not there in India c) Double set of officials d) Double system of courts – In addition, in India, e) Machinery of election, accounts and audit similarity integrated f) Emergency Powers g) Federal system exists to give unitary strength:  Exclusive powers to Centre to legislate  Centre to give directions to State Government (Articles 256-257) and power to supercede (Article 365)  President’s power to Union of State executive and legislative powers (Article 356)

A critique of the federal system  Prof Wheare “A system of Government which is Quasi Federal... a unitary State with subsidiary federal features rather than a federal State with subsidiary federal features”  Prof. Alexandrowicz “The Constitution of India is neither purely federal nor purely unitary but is a combination of both. It is a Union or composite State of a novel type. It enshrines the principle
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that in spite of Federalism the nation interest ought to be paramount”

“Federation with strong centralising tendency” Prof Wheare “That however, is what appears on paper only. It remains to be seen whether in actual practise the federal features entrench or strengthen themselves as they have in Canada, or whether the strong trend towards centralisation which is a feature of most Western Governments. In a world of crisis, will compel these federal aspects of Constitution to wither away” Reasons for ‘withering away of Federalism’ a. Overwhelming financial power of Union b. Comprehensive sweep of Union Planning Commission In defence of above c. Uniform development of country as a whole d. Strengthens national government ‘Co-operative Fedaralism’ – Graville Austin Resulted in resolving conflict between: a. Division of powers b. National Integration That is, has been a boon to keep Indian together under separatists’ forces of Communalism Linguism Scramble for power

Survival of Federalism in India  Co-existence of various political philosophies in India Eg. Communist government in Kerala United Front in West Bengal  New regions demanding Statehood Eg. Meghalaya Manipur Nagaland Tripura  Strong agitation for greater financial power for States Conclusion
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“The proper assessment of the federal system introduced by our constitution is that it introduces a system which is to normally work as a federal system, but there are provisions for converting it into a unitary or quasi-federal system under specified exceptional circumstances” Creation of new States Article 1 - Name and territory of Union ➢ States – 25 ➢ Union territories – 7 ➢ Any territory acquired ➢ India has no right to acquire territory over which a sovereign State is exercising sovereignty Reference Berubari Union A. 1960SC845(856) Article 2 - Admission or establishment of new States ➢ Eg. Sikkim Article 3 ➢

I.


Formation of new States and alteration of areas, boundaries of names of existing States At behest of President Implies adjustment of boundaries Does not include cession of territory to foreign State Laws made under Articles 2 and 3 to provide for the amendment of the First and Fourth Schedules and Supplemental, Incidental and Consequential matters

Article 4 -

II.

Allocation and Share of Resources – Distribution of Grants in Aid ➢ Part XII – distribution of revenues between Union and the States Article 268 – duties levied by the Union but collected and appropriated by the States Article 269 – taxes levied and collected by the Union assigned to the States Article 270 – taxes levied and collected by the Union and distributed between the Union and the State Article 271 – surcharge on certain duties and taxes for purposes of the Union
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Article 272 – Article 273 – Article 274 – Article 275 – Article 276 – Article 280 – Article 282 – Article 266 – Article 267 –

taxes which are levied and collected by the Union and maybe distributed between the Union and the States grants in lieu of export duty on jute and jute products prior recommendation of president required to bills affecting taxation in which States are interested grants from Union to certain States taxes on professions, trades, calling and employments Finance Commission Expenditure defrayable by the Union or a State out of its revenues Consolidated Funds and Public Accounts of India and of the States Contingency fund

II B. Inter State disputes on resources

Part XII –

Coordination between States Disputes related to waters Article 263 – Provision with respect to an interstate council Article 292 – Adjudication of disputes relating to waters of inter state rivers and river valleys

IV.

Centre’s responsibility and internal disturbance within States

Part XIII – Emergency Provision Article 358 Duty of the Union to protect States against external aggression and internal disturbance Article 356 – Provision in case of failure of constitutional machinery in States Article 365 – Effect of failure to comply with, or to give effect to directions given by the Union

VII A.

Special Status of certain States ➢ Part XXI – temporary, transitional and special provisions

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Article 370 Article 371 B. Article 339 -

Temporary provision with respect to the State of Jammu and Kashmir Special provision with respect of the State of Maharashtra and Gujarat Control of the Union over the administration of schedule areas and the welfare of scheduled tribes

Definition of State Article 152 – In this part, unless the context otherwise requires the expression ‘State’ does not include the State of Jammu and Kashmir

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