Essentials of Federalism

Submitted to
Dr. Asad Malik
Faculty of Law
Jamia Millia Islamia

By
Tushar Gupta
3rd semester
Faculty of Law
Jamia Millia Islamia

Acknowledgement
Writing the Acknowledgement for the project in the subject of Constitution is a fairly
simple undertaking for anyone who has attended even a single class of Dr. Asad Malik.
The clarity, the command and the humour he brings into every class is infectious, making
any student believe that there can be no easier subject that the Indian Constitution and
that anyone can master it, provided he gives the subject the respect and recognition that
Sir himself gives the subject.
Furthermore I would like to thank all those people who gave the subject their time and
wrote books which I eventually referred. In this matter, I would particularly like to thank
Dr. M. P. Jain, whose book was precise and the largest reference in this work.
Without the contribution of the above said people I could have never completed this
project.
In addition, I would also like to thank Saquib Mukhtar, without whose laptop, I could
have never typed out this project.

Contents
Introduction
Federalism in the Indian Constitution
The basic features of a federal government
History of Federalism in India
Federal structure in India
Conclusion

Introduction
The Distribution of power is an essential feature of federalism. The object for
which a federal State is formed involves a division of authority between the National
government and the separate states, the tendency of federalism to limit on every side
the action of the government and to split up the strength of the state among coordinate and independent authorities is especially noticeable, because it forms the
essential distinction between a federal system and a unitary system of Government.
Federalism, it is universally acknowledged, has many virtues. Federal governance
promotes efficiency, both economic and political. Federalism is considered efficient from
the political angle as well because of the facility it provides for a heterogeneous
population to come together under the banner of one nation and acquire strength from
unity while allowing the constituents to retain their identity and autonomy over a wide
area of public life. A well designed, and more important, well functioning system of
federal governance, by virtue of its manifold benefits, plays a key role in promoting the
stability and prosperity of nations as the heights attained in development by the leading
federations of the world USA, Canada, Australia and Switzerland demonstrate. On the
other hand, unless carefully crafted, federal systems do not endure as evidenced by the
disintegration of many of the federal formations that came into being in the last century,
such as Soviet Russia, Yugoslavia, Czechslovakia and Rhodesia. The art of federalism
lies in designing institutions with appropriate assignment of powers and functions among
different orders of government and rules to regulate their relationship especially in the
fiscal arena that can strike the right balance among different objectives and resolve
tensions.
The definition of federalism as given in the discussion at the Berne conference of 2011
hosted by the World Bank, U.S. Institute for Peace, and the Swiss Federal Department of
Foreign Affairs is as follows,
Federalism refers to a system of somewhat autonomous units (the constituent units)
brought together under one unified system (the federal government). Typically, the
federal government has limited functions that are thought to be important to all the
constituent units and which the separate constituents would not be able easily to perform
on their own this means that a vertical allocation of responsibilities must occur between

the federal level and the constituent level. At the same time, there are usually aspects of
autonomy for the constituent units which should be protected from interference by other
constituent units an allocation of responsibilities horizontally. The essential elements of
a federal system thus are:

constituent units

federal government

allocation of responsibilities vertically

allocation of responsibilities horizontally

Federalism in the Indian Constitution

To all appearances, the constitution that has formed the basis of governance in India
since independence; is federal. Though not formally designated as federal it is
proclaimed as a 'Union of states' in its very first article the constitution has all the
trappings of a federal polity, viz., statutorily mandated two layers of government with
specification of their respective powers and functions and also the fiscal institutions that
are needed to support a federal structure including mechanisms for intergovernmental
transfers to address the vertical and horizontal imbalances that all federations
unavoidably face.

One entity is not subordinate to the other in its own field; the authority of one is coordinate with that of the other.
The Indian political system though supposedly decentralized and federal is too centrist. It
is quasi-federal at best and does not allow enough room for the states to function freely or
decentralization to come into full play.
In particular, what lends credence to characterization of Indias constitution as unitarist or
quasi-federal are:

A large concurrent list covering wide areas like economic and social planning
with residuary powers with the centre;

Primacy of central laws in the event of any conflict between a state legislation and
a parliamentary law;

Requirement of governor's assent for laws passed by state assemblies and of

president's assent for state enactments in certain matters.

Power to parliament with qualifying majority to redraw the boundaries of a state,

divide it, and create new ones.

Power to the centre to take over the administration of a state in certain

circumstances and promulgate 'President's Rule'.

The basic features of a federal government

Chief essentials for a constitution to be federal are:
1. Dispersion of powers between the center and the unit states forming federation among
a number of co-ordinate bodies, controlled by constitution.
2. Rigidity neither the center nor the state has power to amend the provision of
constitution relating separation of powers.
3. A written constitution

4. Domination of the constitution neither of center nor state has power to nullify the
constitution
5. An independent body and unprejudiced authority
In Pradeep Jain v. Union of India, the Apex Court expressed as India is not a federal State
in the traditional sense of that term. It is not a compact of sovereign State which have
come together to form a federation by ceding undoubtedly federal features.
The basic idea that has to be agreed to with is that the Constitution of India is supreme
and the Central legislative body cannot make any changes to those laws included to
define the power sharing arrangements between the Center and the States in the country.
This makes the Constitution of India federal in its approach to power sharing between the
center and the sub-ordinate units of the country.
But then it also has to be noted that there is no clear distinction of the division of power
between the center and the states, this can be seen as evident from the fact that there are
provisions for the over-riding of the will of the states in cases where there is the
implementation of Art. 201 and Art. 356. Articles 356, 352 and 360 give the power to the
president to declare emergency, which can transform federal system into a unitary
system; however the provision is meant for temporary and can be used only under certain
exceptional situations under certain restrictions created through judicial intervention,
there are many circumstances in which the central government has used this power to
dissolve the state governments of the opposite parties and to remain in power at the
centre.
It also has to be noted that in the introduction of the Concurrent list, there is confusion as
to which entity, i.e. the Center or the States have the last say in the matter, though it is
accepted that if the two entities are in direct opposition to each-other, then the decision of
the Union shall be considered to have more weight than that of the State.

History of Federalism in India

The framing of the Indian Constitution and enunciation of the principle of federalism
would have weighed heavily on the conscious and subconscious minds of the members of
the Constituent Assembly (CA), formed in December 1946. Writing of the Constitution
against the backdrop of the partition of the country, the accompanying communal frenzy
and integration of 565-odd princely states with erstwhile British provinces into one
functioning unit, would have made the task even more complex. The Constituent
Assembly, after prolonged debates, settled for unitary federalism in the backdrop of the
challenges confronting the emerging or just emerged independent nation. Even though
the framers of the Constitution were divided on the issue of federalism as indicated by the
prolonged and passionate debates that took place in the Constituent Assembly, there was
a general consensus towards building India as a nation and a comprehensive
understanding of the nation as a whole; they did not approach the issue of constitution
writing visualizing India in parts. Further, historical experiences, like the rise and fall of
the Mauryan, Gupta, Mughal and other empires, could also have built the argument in
favour of unitary federalism. Before the formation of the Constituent Assembly, the
Cabinet Mission Plan had outlined a central government with very limited powers to be
confined to foreign affairs, defense and communications
However, the Indian National Congress and the Muslim League could not reach an
agreement on the Plan. Further, the first report by the Constituent Assembly also
envisioned a relatively weak Centre as advocated by the Cripps and Cabinet Mission
Plans. The passing of the India Independence Act and the eventual Partition of India led
the Constituent Assembly to adopt a more unitary version of federalism.
Interestingly, Mahatma Gandhi was in favour of a decentralized structure and had
expressed

a preference for

panchayat

or

village-based federation. Dr B. R.

Ambedkar and Prime Minister Jawaharlal Nehru were in favour of a unitary state while
Home Minister Sardar Vallabhbhai Patel and many others stood for the cause of
federalism.

Ultimately a healthy compromise was arrived at, to ensure a balance of power between
the Centre and States and the Constitution described India as a 'Union of States'
implying that its unity is indestructible. It prescribed the structure of the Union
government and also that of the state governments, together with one common
citizenship for the whole of India rather than a dual
citizenship. The federal system brought the provinces together and placed them all on the
same legal footing. Use of the term 'union' indicated that Indian federalism did not come
into existence due to some mutual agreement or compact among the constituent units.
These units were also not given freedom to secede from the union. There were no
provisions of safeguards for the protection of states' rights because the states were not
sovereign entities at the time of the formation of the Union.
It goes to the credit of the framers of the Constitution that they had visualised and
anticipated contingencies which might arise at some point in the future and had made
provisions to meet them. As pointed out by constitutional experts, The Constitution by
adapting itself to changed circumstances strengthens the Government in its endeavour to
overcome the crisis. It is rather a merit of the
Constitution that it visualises the contingencies when the strict application of the federal
principle might destroy the basic assumption on which our Constitution is built.

Federal structure in India

In Ganga Ram Moolchandani v. State of Rajasthan the Supreme Court restated:

Indian Constitution is basically federal in form and is marked by the traditional
characteristics of a federal system, namely supremacy of the Constitution, division of
power between the Union and States and existence independent judiciary. The apex Court
in ITC LTD v Agricultural Produce Market Committee expressed a similar opinion.

In the Kesavananda Bharati vs. state of Kerala case, the Supreme Court ruled that all
provisions of the constitution, including Fundamental Rights can be amended. However,
the Parliament cannot alter the basic structure of the constitution like secularism,
democracy, federalism, separation of powers. Often called the "Basic structure doctrine",
this decision is widely regarded as an important part of Indian history.
In the 1978 Maneka Gandhi v. Union of India case, the Supreme Court extended the
doctrine's importance as superior to any parliamentary legislation. According to the
verdict, no act of parliament can be considered a law if it violated the basic structure of
the constitution. This landmark guarantee of Fundamental Rights was regarded as a
unique example of judicial independence in preserving the sanctity of Fundamental
Rights. The Fundamental Rights can only be altered by a constitutional amendment,
hence their inclusion is a check not only on the executive branch, but also on the
Parliament and state legislatures. The imposition of a state of emergency may lead to a
temporary suspension of the rights conferred by Article 19 (including freedoms of
speech, assembly and movement, etc.) to preserve national security and public order.
Federal concept in the context of Indian Constitution always has been a controversial
question - the States demanding for more powers and less control by Union and the
Union advocating for a strong Centre especially to maintain the sovereignty and integrity
of the Nation. Article 1(1) of the Indian Constitution, hereinafter referred to as
"Constitution" in short, simply says : India, that is Bharat, shall be a Union of States.
Federalism and nature of Indian Federalism was well discussed in State of Rajasthan v.
Union of India, , S.R. Bommai v. Union of India.
In the decision referred in State of Rajasthan case at, the Apex Court held:
"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 power which a number of its provisions carry with them
and the use that has been made of them, more unitary than federal. I mention the use that
has been made of the constitutional provisions because Constitutional practice and
convention become so interlinked with or attached to Constitutional provisions and are

often so important and vital for grasping the real purpose and function of Constitutional
provisions that the two cannot often be viewed apart. And, where the content of powers
appears so vague and loose, from the language of a provision as it seems to us to be in
Article 356(1), for the reasons given above, practice and convention may so crystallize as
to become more significant than the letter of the law. At any rate, they cannot be divorced
from Constitutional law. They seem to us to be relevant even in understanding the
purpose, the import, and the meaning of the words used in Article 356(1). This will be
apparent also from a perusal of the judgment of this Court in Shamsher Singh v. State of
Punjab ."
In the decision referred in S.R. Bommai's case, the Apex Court held at Para 107:
"The federal State is a political convenience intended to reconcile national unity and
integrity and power with maintenance of the State's right. The end aim of the essential
character of the Indian federalism is to place the nation as a whole under control of a
national Government, while the States are allowed to exercise their sovereign power
within the legislative and co-extensive executive and administrative sphere. The common
interest is shared by the Centre and the local interests are controlled by the States. The
distribution of the legislative and executive power within limits and co-ordinate authority
of different organs are delineated in the organic law of the land, namely the Constitution
itself. The essence of federalism, therefore, is distribution of the force of the State among
its co-ordinate bodies. Each is organized and controlled by the Constitution. The division
of power between the Union and the State is made in such a way that whatever has been
the power distributed, legislative and executive, be exercised by the respective units
making each a sovereign in its sphere and the rule of law requires that there should be a
responsible Government. Thus the State is a federal status. The State qua the Centre has
quasi-federal unit. In the language of Prof. K.C. Wheare, to ascertain the federal
character, the important point is, "whether the powers of the Government are divided
between coordinate independent authorities or not", and at he stated that "the systems of
Government embody predominantly on division of powers between Centre and Regional
authority each of which in its own sphere is co-ordinate, with the other independent as of
them, and if so is that Government federal?"

In reference to Art. 136, the Supreme Court has said,

"In dealing with this question, it is necessary to bear in mind one fundamental feature of a
Federal Constitution. In England, Parliament is sovereign; and in the words of Dicey, the
three distinguishing features of the principle of Parliamentary Sovereignty are that
Parliament has the right to make or unmake any law whatever; that no person or body is
recognized by the law of England as having a right to override or set aside the legislation
of Parliament, and that the right or power of Parliament extends to every part of the
Queen's dominions. On the other hand, the essential characteristic of federalism is "the
distribution of limited executive, legislative and judicial authority among bodies which
are co-ordinate with and independent of each other". The supremacy of the Constitution
is fundamental to the existence of a federal State in order to prevent either the Legislature
of the federal unit or those of the member States from destroying or impairing that
delicate balance of power which satisfies the particular requirements of States which are
desirous of union, but not prepared to merge their individuality in a unity. This
supremacy of the Constitution is protected by the authority of an independent judicial
body to act as the interpreter of a scheme of distribution of powers. Nor is any change
possible in the Constitution by the ordinary process of federal or State legislation. Thus
the dominant characteristic of the British Constitution cannot be claimed by a Federal
Constitution like ours."
In State of M.P. v. Bharath Singh , it was held that the Indian Federal structure is founded
on;
(1) Sovereignty of people with limited Government authority; and
(2) Distribution of power between three organs of the State -Legislature, Executive and
Judicial, each organ having some check direct or indirect on the other.
It is laid down by, that the most important point to ascertain whether a Constitution is
Federal in character is whether the powers of the Government are divided between coordinate independent authority or not. In accordance to H. M. Servai, the learned author
expressed the opinion that the most important feature of Federal Constitution is the
distribution of legislative power. Even A.V. Dicey, had expressed an opinion that the

distribution of limited executive, legislative and judicial authority among bodies each coordinate with and independent of the other is essential to the Federal form of
Government.
Federal set up is always understood in contradistinction to unitary State. Federalism,
whether understood as pragmatic or quasi in the Indian context in view of the division of
powers between the Union and States, is accepted to be the basic structure of the
Constitution. A comparative study of the Constitutions of Federal set up of the World do
throw clear light on the division of powers between the Centre and the States. Local
Government or local bodies have been never treated to have division of powers so as to
be a tier in the Federal system. It is clear from the very functioning of the Federal
Systems of the World. In Kesavananda Bharathi v. State of Kerala, the Apex Court no
doubt held that Federalism is the basic structure of the Constitution. In Smt.Indira Nehru
Gandhi v. Shri Raj Narain, it was held by the Apex Court:
"The reason of this restraint is not that the Indian Constitution recognizes any rigid
separation of powers. Plainly, it does not. The reason is that the concentration of powers
in any one organ may, by upsetting that fine balance between the three organs, destroy the
fundamental premises of a democratic Government to which we are pledged. Sir Carleton
K. Allen says that neither in Montesquieu's analysis nor in Locke's are the Governmental
powers conceived as the familiar trinity of legislative, executive and judicial powers.
Montesquieu's "separation" took the form not of impassable barriers and unalterable
frontiers, but of mutual restraints, or of what afterwards came to be known as "checks and
balances". The three organs must act in concert, not that their respective functions should
not ever touch one another. If this limitation is respected and preserved, "it is impossible
for that situation to arise which Locke and Montesquieu regarded as the eclipse of liberty
- the monopoly, or the disproportionate accumulation, of power in one sphere". In a
Federal System which distributes powers between three co-ordinate branches of
Government, though not rigidly, disputes regarding the limits of Constitutional power
have to be resolved by Courts and therefore, as observed by Paton, "the distinction
between judicial and other powers may be vital to the maintenance of the Constitution
itself. Power is of an encroaching nature, wrote Madison in 'The Federalist'. The

encroaching power which the Federalists feared most was the legislative power and that,
according to Madison, is the danger of all republics.

Conclusion
Given that this project is to highlight the essential features of federalism, I have referred
to precedents and research-papers to highlight the same without giving much of my
attention to the provisions within the Constitution of India for any inspiration for the
same. This, I would like to clarify here. The Indian Constitution is federal in its nature,
this, though is not expressly mentioned anywhere in the Constitution of India, the
provisions have been given in Part XI of the Indian Constitution (Art. 245- Art. 263), Art.
246 gives rise to Schedule 7 of the Indian Constitution, which clearly states the division
of jurisdiction on the basis of subject matter and the division of the states defines the
jurisdiction in accordance to territory. But then, the Constitution of India also gives the
Union more power than the States, (Art. 368), thus making it a federal government with
the traits of an unitary system in it. Thus, India does not have an absolutely unitary form
of Government.

Bibliography

KASHYAP SUBHASH C., Constitutional Law of India, Vol. 1, Universal law

Publishing Co. Pvt. Ltd.

BASU D.D., Commentary on Constitution of India, 8th Ed., Vol. 4, Wadhwa,

Nagpur

JAIN M.P., Outlines of Indian Legal and Constitutional History, 6th Ed. Lexis
Nexis Butterworths Wadhwa, Nagpur.

Constituent Assembly Debates, VOL.VIII