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Indian Federalism: Examining the debate

What is a federal state?

To begin with, one should know what a federal state is. The concept of federal state has
evolved over period, with the political experiments it was clear that the some issues should be
handled best by the national government, while some could be handled by the regional
governments who can handle the issues of local interest. Federalism is a mechanism for
effective governance of a union to reconcile unity with municipality, centralisation with
decentralisation and nationalism with localism. The modern agreed definition and concept of
federalism has been more or less derived from the structure and features of the American
Constitution. K.C. Wheare defined federal state as a state which has a division of powers
between general and regional authorities, each of which, in its own sphere, is co-ordinate
with the others and independent of them. The sphere of the general government and the
regional government is defined and limited; both the governments have supreme powers and
no way the regional government is subordinate to the general government.

The state can be called a co-ordinate if the states can directly operate the command on the
citizens without any approval of each other. The presence of a single, indivisible yet
composite federal nation is important, however merging into a uniform nation giving all the
sovereign power of the provincial government to the general government is not an option.

There can be a concurrent list, in which one government can override the power of the other,
but the main test of federalism lies in the control actual or potential, of at least one subject in
which only one of the governments in superior and the other is not. The federal nature of a
state necessarily, the main thing to take into consideration is that the Constitution should be
regarded as Supreme and the presence of a written Constitution. Some of the Constitutions
like the Constitution of India, though the federal principles are not so accurate, are not less
important not to be considered as a federal state. They have been named as quasi-federal
states or as unitary with federal principles, it does not prevent the Constitution from being
predominantly federal in practise. In the early days of the Federal states like USA, Canada
and Australia, the main prevailing concept was of competitive federalism, the rivalry and
disputes between the general government and provincial government were significantly high.
There was a brotherhood of tempted rivalry; inspite of the rivalry and conflict the states
were aware of their mutual dependence. However, with the increase in inter-nation wars, rise
in concept of social welfare state and emergence of modern communication technologies the
concepts of competitive federalism gives way to co-operative federalism. Birch defined co-
operative federalism as ... the practise of administrative co-operation between general and
regional governments, the partial dependence of the regional governments upon the payments
from the central governments, and the fact that the general governments, by the use of
conditional grants, frequently promotes developments in matters which are constitutionally
assigned to the regions. In the twentieth century, the concept of federalism has risen to be a
scenario of mutual co-operation between the two governments, with a centralist trend.
However, a strong central government doesnt necessarily mean that the regional
governments are weak which works as administrative agents for caring out the policies of the
central government.

Analysing the Propositions in State of West Bengal v. Union of India and Third Sense
of Federalism by Prof. P.K. Tripathi

First, I would like to argue that there is not one proposition which justifies each other but
there are two contrary propositions, though they started out in the same direction but they
final result or conclusion are completely different. In the first proposition given in the case of
State of West Bengal v. Union of India, the argument given at the bar was that The
Constitution having adopted the federal principle of government the States share the
sovereignty of the nation with the Union, and therefore power of the Parliament does not
extend to enacting legislation for depriving the States of property vested in them as sovereign
authorities. However, the Honourable Court held that the Indian Constitution which was
not true to any traditional pattern of federation. The Sinha, C.J., argued that in India there
was withdrawal or resumption of all the powers of sovereignty into the people of this country
and the distribution of these powers save those withheld from both the Union and the States
by the Constitution. He continued saying that the legal sovereignty of the Indian nation is
vested the people of India and the political sovereignty is distributed between, the Union of
India and the States with greater weightage in favour of the Union. The judge concluded that
it would not be correct to maintain that absolute sovereignty remains vested in the States.
On examining the various provisions of the Constitution, one can conclude that the
distribution of powers - both legislative and executive - does not support the theory of full
sovereignty in the States so as to render it immune from the exercise of legislative power of
the Union Parliament The proposition given by Prof. P.K. Tripathi as the third sense of
federalism which he called as the mythical sense of federalism describes that the
Constitution ...under consideration does not satisfy the essential and indispensable
requirements of federalismand the use of the expression federal or federalism, in this third
sense, is really speaking spurious .The conscious object or purpose of this spurious use isto
metamorphose a non-federal constitution into a federal one. The Constitution under
consideration may not have the requisite features so that it may be considered as federal
constitution, and the interferences drawn in the case of a federal Constitution is not available.
However, from time to time judges who are dissatisfied with the non-federal character of the
Constitution have tried to alter the very nature of the Constitution through the tool of
judicial review. They make a prior baseless assumption of having federal Constitution and
attack on the provisions which are contrary to the principle of federalism.

Deviated from the actual reality they try to create a myth, and argue to make the myth a
reality through judicial interpretation. The proposition given in the case of State of West
Bengal, substantially defers from the proposition given by Prof. P.K. Tripathi. In the above
case, the majority judges did not act entirely on the basis of the mythical sense of
federalism as put forward by the Prof.P.K. Tripathi. Though the argument that the Indian
Constitution is federal has been justified as a myth in the above case. But the later part of the
argument by Tripathi has not been justified. The judges did not based their claims on the basis
of the India to be truly a federal state and tried to prove its federal character and give
judgement for the state, rather they rejected the claims of the state that they shared
sovereignty with the Centre.

However, the minority dissenting decision by Subba, J., said thatthepolitical sovereign is
the people of India and the legal sovereignty is divided between the constitutional entities i.e.,
the Union and the States, who are juristic personalities.

Possessing properties and functioning through the instrumentalities created by the


Constitution. Within their respective spheres both in the legislative and executive fields
they are supreme; their inter se relationship is regulated by specific provisions. The majority
decision of West Bengal case has been criticised by many of the authors, judges and scholars.

In the case of State of Rajasthan v. Union of India, Beg, C.J. considered the Indian
Constitution as more unitary than federal and have the appearance of a federal structure.
He also said that, In a sense, therefore, the Indian union is federal. But, the extent of
federalism in it is largely watered down by the needs of progress and development of a
country which has to be nationally integrated, politically and economically coordinated and
socially, intellectually and spiritually up-lifted. The argument of that Indian Constitution is a
federation is nothing but a myth is again proved.

There have been incidents when the third sense of federalism as explained by Tripathi has-
been applied to attack the Indian Constitution as violation of federal principles. Demand has
been raised from time to time for re-ordering of the Indian federalism due to rise of multiple
political parties in the regional level, who want to improve their own position. The
Government of Tamil Nadu appointed Rajamannar Committee in 1969 to examine the entire
question regarding the relationship that should exist between the Centre and the States in a
federal setup, taking into consideration the provisions of the Indian Constitution and suggest
amendments to it for providing greater autonomy to the state Governments. The committee
made a prior assumption of India being a federal state and argued on the basis of this, and
proposed amendments to the Indian Constitution. There port of the committee presented a
classical illustration of the use of the term federalism in the mythical sense to accomplish
the desired end of converting a non-federal constitution into federal one.

Federalism in the mythical sense to accomplish the desired end of converting a non-federal
constitution into federal one.

Is India a federal state?

The framers of the Indian Constitution were aware of the changing concepts of functional
realities in other Federations, the historical background of India and the special needs of India
have framed the Constitution according to the changing need of the dynamic society.
There are provisions which dont make Indian Constitution to be a federal in the sense of
American Constitution. But merely because the Centre is having more power to some extent
than the states, it doesnt render the Constitution not to be called a federal one as no two
federal constitutions are identical, they can vary. Though India have external sovereignty, the
within India, neither the Union nor the states enjoys [absolute] internal sovereignty due to the
division of powers between the Union and the States in which both the Governments have
plenary power within their assigned sphere. Though the Union Government has been
assigned the matters which are of national importance, the matters concerning the States are
no way subordinate, but they are of a different importance than the Union. There exist certain
provisions in the Constitution which are considered to be going against the principle of
federalism. The power to alter the boundaries of the state lies with the Centre, however in
practice the states themselves has forced the Centre to redraw the boundaries of the state. The
emergency provisions in Article 356, is considered to be deviation from the principle of
federalism; however the provision is meant for temporary and can be used only under certain
exceptional situations under certain restrictions created through judicial intervention.

There has been a change in the construction of the nature of Indian federalism, in the case of
S.R. Bommai v. Union of India, it has been held that Democracy and federalism are
essential features of our constitution and are part of its basic structure.

The courts through their liberal interpretation of the Constitution have helped in extending
the legislative fields which otherwise can be read rigidly to encroach upon the entry of the
other government. The courts have played the significant role as the balance for harmonious
construction of the entry to maintain the Centre-State relation.

The use of the term quasi federal which is generally used in connection with Indian
Constitution is quite vague and unclear about the deviation or conformity with the so-called
pure federal model.

There is no clear cut distinction or characteristics of a quasi-federal constitution. There is


quite chance that the term can be abused to construct negative impression of being a federal
Constitution, making the ...mythical use of the expression federal for accomplishing the
chronic end of snapping the strength and authority of the Union.

Conclusion

There is a clash between the orthodox school of federalism and dynamic progressive
school of federalism. While the orthodox school consisting of K.C. Wheare,Duchacek,
Sawer, P.K. Tripathi, C.J. Sinha have tested the existence of federal principle on the model of
American Constitution and emphasised on the existence of a competitive federalism. The
dynamic progressive school of federalism which consist of the modern day Constitutional
experts like A.H. Birch, M.P. Jain, Seervai have stressed on the concept of co-operative
federalism. The orthodox model of federalism is rigid and has no space for modification,
taking into consideration the modern day scenario. The deviation from the model American
Constitution is considered as a violation of federal principle. The third sense of federalism as
explained by Tripathi makes a basis on the orthodox rigid model of federalism and later
argues on the deviation from this model to turn a so called non pure federal state into a
federal one. The assumption made by Tripathi, who seems to belong to the orthodox school is
just a rigid one, and in his mind is the concept of dual competitive federalism, which is
outdated and taking into consideration the Indian Constitution though have certain features
which can be called as a unitary trend, but actual in practise the Indian Constitution works
more as a federal state.

The Indian Constitution as argued by the dynamic progressive school of federalism is


model of co-operative federalism where the states dont compete with the Union. They also
take into consideration the changing need of the society, the historical background and take
into account the actual practise of governing to ascertain the nature of the Constitution.