National Law University Jodhpur's Constitution and Federalism

National Law University Jodhpur
Constitution is the Soul of India, i.e. Bharat as the Union of States India is an indestructible unit of destructible units "he two levels o# $overnment in %ndia& divide and share the totality o# $overnmental #unctions and powers between themselves. "he distribution o# le'islative powers between the Centre and the (tates is the most important characteristic& rather the core& o# any #ederal system. %n reality the whole #ederal system revolves around this basic core o# distribution o# powers. ) #ederal constitution thus envisa'es a demarcation or division o# 'overnmental #unctions as powers between the Centre and the re'ions by the sanction o# the Constitution itsel# which is usually a written document and also a ri'id one& i.e.& which is not capable o# amendment easily. *rom this #ollow two necessary conse+uences, (-!"hat any invasion by one level o# 'overnment on the area assi'ned to the other level o# 'overnment is a breach o# the constitution. and
(/! "hat such a breach o# the constitution is a 0usticiable issue to be
Comparative Public Laws (Roll No.49 !
determined by the courts. 1ach level o# 'overnment thus #unctions within the area assi'ned to it by the constitution.
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*or most persons& within and outside 'overnment& the 'ravest dan'er to unity and inte'rity came #rom #our 2isms34casteism& communalism& lin'uism& provincialism and re'ionalism. "he antidote to& and the cure #or& communalism was yet a si5th 2ism3& 2secularism3. "his desirable condition o# society was understood to mean a low level o# consciousness o# partisanship in one3s own 2community3& and conse+uent tolerance o# other 2communities3. Con'ress President UN 6hebhar believed that 7socialism and sectarianism cannot wal8 hand in hand9. (an0iva Reddy said in his travels in the country he had #ound a subtle but stron' thread o# unity amon' the people& but our mutual intolerances o# each other
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P'.4:9& ;P Jain& %ndian Constitutional Law& <adhwa Na'pur& =th 1dition& /
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re#lected in such comple5es as provincialism& lin'uism& communalism etc should be deemed anti,national #orces9. Calls #or 'enerali>ed decentralisation& or occasionally& by individual states #or 2autonomy3& and in a #ew instances #or secession& have alarmed central 'overnments since -9= . "he 'ravest threats to secede came in "amil Nadu& Pun0ab and #rom the Na'as. (tates call #or decentralisation and autonomy is another matter. ?ased on 'enuine and perceived 'rievances a'ainst central 'overnment un#airness or ne'lect& they have been pleas #or redress. "he centrali>ers were supported by stron' #orces and tendencies. "wo o# these were connected directly to the seamless web. "he #undamental ri'hts and the protection o# minorities and the wea8er sections o# society& both essential to democracy& ultimately were the responsibility o# the central 'overnment and the (upreme Court. (imilarly& the central 'overnment had the leadin' responsibility #or the pursuit o# the social revolution as embodied constitutionally in the Preamble and the 6irective Principles o# (tate Policy. "he central 'overnment also had the ultimate responsibility #or the #unctionin' o# democratic 'overnment in the states ()rticles @=A and @A=!. %n the words o# the (tates Reor'ani>ation Commission& this was 7the supervision by the lar'er democracy (o# the %ndian Union! over the smaller democracies (o# the states! in respect o# matters o# national concern9. ) characteristic o# sub,continental culture has made political and administrative decentrali>ation di##icult. ) respect& a reverence& #or power and ran8 in a hierarchical society has supported the tendency amon' party and 'overnment o##icials to 2pass the buc83 to hi'her levels o# authority when con#ronted with di##icult decisions and to de#er unduly to the ideas o# superiors. 2Let Panditi0i decide3& and 2what is ;adam3s mood todayB3 were o#ten heard durin' their years as P;. "he pattern has persisted within parties and 'overnments even as political rebelliousness has increased.
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"his is what C. (anthanam re#erred to&9at independence& power had been devolved #rom central authority& not& as in the United (tates& ceded to a new central 'overnment by colonies made independent by revolution. "here have been several phases o# *ederalism. <herein the Nehru years institutionali>ed centralisation& which led to a ma0or 'overnment study a#ter a #ew years o# his death to describe the 'overnment,Con'ress ne5us as&3where a sin'le party has control over a##airs at the Centre as well as in the states an alternative and e5tra,constitutional channel becomes available #or the operation o# centre,state relationships. "his channel has been very active. %n the process& the Constitution was not violated& but was o#ten bypassed3. "he %ndira $andhi era is seen as a watershed in centre,state relations& as in other aspects o# 'overnance. 6urin' her time& placin' the country under unitary administration durin' the 1mer'ency sel#,evidently was the apo'ee o# centrali>ation. Under her leadership& the Parliament& in the /4 th )mendment& empowered itsel# to amend or repeal any provision o# the Constitution. )nd it sacri#iced in the /=th the #undamental #reedoms o# )rticle -9 to ma0or provisions o# the 6irective Principles. "he centrali>ation o#authority and ;rs $andhi3s contributions to it evo8ed critical reactions early in her prime ministry. %n -9AD& 1;( Namboodiripad told a ;adras audience that a new constituent assembly should establish a truly #ederal sytem& and the chie# ministers o# )ndhra and Erissa called #or 7real #ederalism9"he most wei'hty criti+ue appeared as the Report o# the Centre,(tate Relations %n+uiry Committee published by the 'overnment o# "amil Nadu in -9:-. "his addressed itsel# to3the entire +uestion re'ardin' the relationship that should subsist between the Centre and the (tates in a #ederal set,up& with re#erence to the Constitution o# %ndia. "he Janata years were mar8ed by the Central $overnment3s unwise dismissal o# Con'ress $overnments in the states& by stren'thened
re'ional political parties& and most importantly by its primary mission& to redress the 1mer'ency3s e5cesses.
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A Historical perspective Sardar Patel3s words to the Constituent )ssembly 4 7Unli8e the scheme o# -9@=&our new constitution is not an alliance between democracies and dynasties& but a real Union o# the %ndian people based on the basic concept o# the soverei'nty o# the people9. @ %nterpretation o# Constitutional provisions had to be arrived at throu'h political bar'ainin' and in the courts o# law& revealin' the mindset o# the de#iners. *irst& what de'ree o# 2#ederal spirit3 should mar8 the Constitution3s #unctionin'B "erms li8e 2+uasi,#ederation3&3cooperative
#ederalism3&3#ederal in #orm but unitary in substance3& and 2centrali>ed #ederalism3 were used. 1ach term revealed an understandin' o# centre, state relations as& respectively& not +uite 2#ederal3 enou'h& 0ust about ri'ht& or too centrali>ed. "he President o# the Constituent )ssembly& Ra0endra Prasad& had neatly avoided the de#initional +uic8sand by tellin' its members that labels were unimportant. 2<hether you call it a #ederal constitution or a unitary constitution or by any other name& it ma8es no di##erence so lon' as the Constitution serves our purpose.3 C. (anthanam3s analysis that %ndia3s was 2a *ederation in which the paramountcy powers which the ?ritish $overnment had over the %ndian Princely (tates have been ta8en over by the Union $overnment and applied to all units. (o& it will be appropriate to call our *ederation a 7Paramountcy *ederation9.4 "he total absorption o# the Princely (tates into the %ndian constitutional structure& which occupied the decade between the announcement o# the Cabinet ;ission Plan on -A ;ay -94A and (tates Reor'ani>ation in -9=A&
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Chapter /:& "erminolo'y and its perils& <or8in' a democratic constitution& the %ndian e5perience& $ranville )ustin& E5#ord Publication& /nd edition& / . @ P./=4& Chapter - & *ederalism %%%& National Plannin'& "he %ndian Constitution& Cornerstone o# a Nation& $ranville )ustin& o5#ord& :th edition / 4. 4 (anthanam& Union,(tate Relations& p.-@. p.=A-& Supra note @.
was very lar'ely accomplished durin' the li#e,span o# the Constituent )ssembly. )t the be'innin' o# this period& the Princely (tates were in no way part o# the Union. (omewhat later most o# them became loosely attached to the Union $overnment in a relationship more closely resemblin' con#ederation that #ederalism,althou'h several threatened to remain completely independent. Fet by the time the constitution was inau'urated& #ew distinctions remained between the #ormer Princely (tates and the other states o# the Union& previously he provinces o# ?ritish %ndia. )rticle - and the *irst (chedule o# the Constitution enumerate the component units o# the Union. ?e#ore -9=A there were the Part ) states& the #ormer provinces& the Part ? states& the #ormerly Princely (tates& and the Part C (tates& which were centrally administered areas and included he #ormer Chie# Commissioners provinces. )mon' the ten Part C states were seven #ormer Princely (tates& which& #or the time bein'& were to be centrally administered. "he provisions o# the provincial constitution applied e+ually to both Part ) and Part ? states& and the relationship o# the latter with the Union was& with #ew e5ceptions& the same as that en0oyed by the Part ) states. Part ? states had to #ore'o to the Union their properties and assets i# the purposes #or which these assets were held pertained to matters on theUnion List. )t the same time& the Union assumed the liabilities o# Part ? (tates i# they concerned items on the Union List. "he other di##erences between the #ormer #ormer provinces wor8ed in #avour o# the latter. )lthou'h their armed #orces must #orm part o# the armed #orces o# the union& Part ? states mi'ht continue to maintain them until Parliament provided otherwise. "he Union could ma8e special 'rants to Part ? states in lieu o# revenues lost by the Union assumption o# ta5 heads. )nd the Part ? states were allowed in most cases to 8eep their #ormer rulers as Ra0pramu8hs& or 'overnors,an arran'ement satis#yin' to the Princes and not too distaste#ul to their #ormer sub0ects& protected as they now were by the Constitution #rom the rulers3 previously arbitrary and sometimes
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tyrannical authority. "he (tate o# Casmir had& and continues to have& a privile'ed position under our Constitution. )t the be'innin' o# the (ate3s metamorphosis in -94A,4:& the )ssembly conducted the ne'otiations with the rulers& #or these were beyond the competence o# the %nterm $overnment. ?ut a#ter its establishment in July -94:& the (tates ministry under (ardar Patel assumed the primary responsibility #or brin'in' the Princes into the Union. "he )ssembly& however& continued to be closely involved with what Patel called the 2unioni>ation3 o# the (tates& althou'h lar'ely as a rati#yin' body& dra#tin' the provisions to implement the a'reements reached between the (tates ;inistry and the Princes. %t is only the )ssembly3s role that concerns us. "he problem o# brin'in' the Princely (tates into the %ndian #ederation& be+ueathed to the )ssembly and the Union $overnment by the departin' ?ritish& was one the ?ritish themselves had never been able to solve. *or over a hundred years be#ore independence these (tates had had a special relationship with the Paramount Power. "heir treaties with the ?ritish had le#t them a 'ood deal o# internal autonomy,'lori#iedby the rulin' Princes into 2soverei'nty3,althou'h the Giceroy3s power to brin' them to heel was ever present in the person o# the Resident. 6urin' the Round "able Con#erence& #ear#ul o# the possibility o# an %ndian #ederation& the Princes sou'ht to protect their special status. "hey re#used to a'ree to paramountcy bein' within the purview o# the #ederal 'overnment& and they clun' leech,li8e to the mani#estations o# their soverei'nty. )s a result& the -9@= )ct provided only that the (tates should accede to the #ederation i# they so desired. "he ne'otiations concernin' the terms o# accession were to be underta8en with each (tate separately by the Giceroy& in his capacity as Crown Representative. %nitiated in -9@:& on the comin' into #orce o# the -9@: )ct& these ne'otiations dra''ed on until the <ar& with the result that none o# the Princely (tates became members o# the #ederation.
"he Con'ress3 policy towards the states be'an to emer'e in the -9/ s. Resolutions ur'ed the Princes 2to introduce responsible 'overnment based on representative institutions3 in their (tates and to 'uarantee elementary #undamental ri'hts. )nother resolution asserted that the Con'ress stood #or 2the same political& social and economic #reedom in the (tates as in the rest o# %ndia3. "he only #ederation acceptable to the Con'ress& states a third resolution& re#errin' to the -9@= )ct& was 2one in which the (tates participate as #ree units en0oyin' the same measure o# democratic #reedom as the rest o# %ndia3. "he annual Con'ress (ession o# -94A& held at ;eerut the month be#ore the openin' o# the )ssembly& reiterated most o# these sentiments and damned the rulers as reactionaries who were tryin' to crush the political aspirations o# their sub0ects. <ith the end o# the war and the approach o# independence& it became evident that there would be a con#rontation o# these two #orces& the one #avourin' arbitrary rule and see8in' to preserve its privile'e and its #reedom #rom central 'overnment in#luence& and the other dedicated to spreadin' popular 'overnment and the social revolution throu'hout the country. Certain #eatures o# the situation were plain to every discernin' eye. *ederalism in the new %ndia would not wor8 i# there e5isted amon' the units both monarchical and democratic 'overnments,the two were incompatible. "his contrast in political institutions had been one reason why the #ederation envisa'ed in the -9@= )ct had never come to #ruition. )nd in the new %ndia& Nehru&3no state can have an administrationwhich 'oes a'ainst our #undamental principles or 'ives less #reedom than obtains in other parts o# %ndia3. ;oreover& unless the Princely (tates were brou'ht into a close relationship with the Union& it would be di##icult or impossible to e5tend to their peoples the bene#its o# social re#orm& to brin' them up to the level o# the provinces % such matters as labour wel#are and a'ricultural and industrial development. "he provisions o# the 6ra#t Constitution on its appearance in early -94D showed that the inte'ration o# the (tates had made pro'ress since the
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precedin' )u'ust& but that their position was still much di##erent #rom that o# the provinces. %n order 2to mar8 this di##erence3 the 6ra#t divided the units o# the Union into three classes that e5actly corresponded to the Part )& ?& and C states o# the Constitution4 the #ormer provinces& the #ormer Princely (tates& and the centrally administered areas& called Chie# Commissioners Provinces.
"hat the units o# a #ederation should have di##erent relationships to the #ederal 'overnment was not thou'ht o# as an innovation by )ssembly members. it was merely a reco'nition o# the e5istin' situation& ?ut& in 'eneral& they #ound the e5ceptional autonomy o# the (tates 'allin'& and they believed it dan'erous to the viability o# the Union 2%t was un#ortunate and inde#ensible3& )mbed8ar said& that the (tates were on a di##erent #ootin' #rom the provinces.3 "his disparity3 he continued&3may even prove dan'erous to the e##iciency o# the (tate3. (o lon' as this disparity e5ists& the Centre3s authority over )ll,%ndia matters may lose its e##icacy. *or power is no power i# it cannot be e5ercised in all cases and in all places.= "he )ssembly then #ound itsel# con#ronted by the problem o#
constitutions #or the states. "he covenants establishin' he relationship between the Union and the various (tates and Unions o# (tates& laid down that the (tates and Unions could convene their own constituent assemblies and #rame their own constitutions. ?y the autumn o# -94D& however& #ew constituent assemblies had been #ormed& and those #unctionin'& lac8ed direction. En /= Ectober -94D& P. $ovinda ;enon o# the Cochin (tate moved in the (teerin' Committee that the )ssembly set up a committee to prepare a model constitution #or the (tate constituent assemblies to #ollow. )lthou'h several )ssembly members opposed this on the 'round that there should be no such constituent assemblies and the (tates should use the Constitution dra#ted #or the provinces& the )ssembly& includin' states representatives& and the (tates ministry
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P'./=- Supra note @. C)6 G%%&4/.
#avoured the idea. %n November& ?.N.Rau was chosen to head the committee& which was to wor8 in cooperation with the (tates ministry and by mid,;arch -949 the committee3s report was ready. "he committee reported that its model constitution varied little #rom that already #ramed #or the provinces. "he only ma0or di##erence& in #act& was that the (tate Le'islatures were empowered to amend their constitution& whereas the provincial le'islatures were denied constituent powers in relation to any o# the provisions o# the %ndian Constitution.
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"his& thou'h became outdated and the )ssembly adopted a new )rticle /@D& which applied with certain e5ceptions& the constitution o# the provinces to the (tates. "his meant not only that both would have the same political institutions& but that the states would never 'et the e5ceptional constituent power once contemplated #or them. Patel summed up the reasons behind this chan'e.3 )s the (tates come closer to the Centre&3 he said &3it was realised that the idea o# separate constitutions bein' #ramed #or the di##erent constituent units o# the %ndian Union was a le'acy o# the Rulers3 polity and that in a people3s polity there was no scope #or varie'ated constitutional patters3. 6urin' July and )u'ust -949& the )ssembly be'an ta8in' the #inal steps towards e5tendin' the provisions o# the Constitution as a whole to the (tates. ;ost o# the $overnments in the (tates and the ma0ority o# )ssembly members by now supported this& but there remained one stron' barrier 4 "he (tates3 #ears o# the economic conse+uences o# inte'ration. )ccession to the Union had not cost the (tates their revenues& nor had the lar'er (tates and Unions lost their #inancial autonomy durin' the whittlin' away o# their political authority. *aced with complete absorption into the Union& however &3all were a#raid that i# they were to part with 7#ederal9 assets and sources o# revenue without ade+uate 7compensation9& their pro'ress would be arrested and they would continue #or a lon' time as bac8ward members o# the %ndian Union. "he %ndian (tates *inances 1n+uiry Committee recommended that4
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P'./=/& Supra note @.
7Union authority should be the same in the (tates and the provinces. the Union $overnment 2should e5ercise its #unctions in the (tates throu'h its own administrative a'encies as in the provinces&3 and the (tates 2should contribute to the #inances o# the Union on e5actly the same basis as the provinces and receive 'rants and other #orms o# #inancial assistance on the same basis.9

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National Law University Jodhpur

Comparative Public Laws (Roll No.49 !

P'.4:9& ;P Jain& %ndian Constitutional Law& <adhwa Na'pur& =th 1dition& /