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A

BRIEF REPORT

ON

LECTURE ON FEDERALISM by Prof. (Dr.) V. VIJAY KUMAR

NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW,


RANCHI

SUBMITTED TO: SUBMITTED BY:


Mr. Nimesh Das Guru Amarjeet Ranjan
Assistant Professor LLM (Ist Semester)
Centre-State Relations & Constitutional Governance 2017-2018

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CENTRE-STATE RELATIONS & FEDERALISM

(FEDERALISM IN INDIA)

The Indian government is divided into three organs the executive, the legislative and the
judiciary. This concept is brought by the doctrine of separation of power which distributes the
power to different organ so that no organ encroaches upon the powers of other. Federalism
occupies an important role in the constitutional development but still there is definite
definition. Ivo D. Duchacek had observed that there is no accepted theory of federalism, the
concept itself is unclear. Most of the time it is defined to be a process which combines
territorial communities that directly join into new units of common interest, policy and
action, or in either way it can termed for the process of decentralisation of power.

A.V. Dicey identified two conditions that tend to form a federal state, firstly, it is as the
existence of a body of countries such as the cantons of Switzerland. Secondly, the existence
of a very peculiar state of sentiment among the inhabitants of the countries which is proposed
to be unite.

The five essential requirements federalism are written Constitution, rigid Constitution,
supremacy of the constitution, division of power, independent and impartial judiciary. To
codify the laws is very important and the constitution being in written is meant as the perfect
from. The term Rigidity of the constitution doesnt mean that it is rigid, it is flexible
enough to be amended and bring about change whenever required as per the need of the
society or else it will be replaced by a new constitution as it was done with the French
constitution. Every constitution is checked on the balance to pass to be a federal constitution
and even if it fails at any of it, it is considered to be a non-federal constitution such as Russia.
There is supremacy in the constitution that is constitution is above all and no can go beyond
it. For the proper functioning of the government there is requirement of the distribution of the
power, though there is no specific provision that provides the power of the organ it is implied
that one cannot encroach upon the other functions and powers. Independent judiciary points
out that it is not influenced by any of the organ and is impartial in nature.

Ivo D. Duchacek lays down ten yardstick on the basis of American constitution, to test the
federal character of constitution and its relevancy. The Indian constitution satisfies most of
the yardsticks to be federal constitution. The concept of quasi-federalism used frequently,
is a misnomer because a constitution is either unitary in nature or federal and the extent of it

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being federal depends on the circumstances. The constitution can be determined as either
unitary or federal, there is no third position.

The origin of federalism in Indian Constitution can be traced from the history during the
British rule, which introduced the concept of federalism, later it was added in Act of 1919
and 1935. The essence of federalism lies in the character of centre-state relation and the
functioning of judiciary this can be obtained from the structure of governance. In India
President is the head of state as well as the head of the government who has been conferred
with powers and duties (Art 298 &361) distinguished from functions (to be done on the aid
&advice of the council of ministers).

The Indian Constitution requires all the five elements of federalism to be a federal
constitution. The basic structure of the constitution cannot be amended as held in the case
Kesavananda Bharti, we have vertical division of power (distinguished from horizontal
separation of power), and our constitution is not different from that of the U.S. constitution.

The federalism lies with the structure of centre and state and the relation that they share. Our
constitution is balanced by the division of power between the centre and the state, Article
246(1) gives exclusive power to the centre and Article 246(3) gives exclusive power to the
state where as Article 246(2) confers only power while the residuary power given under
Article 248. The characteristics being the competence conferred on centre to make laws on
the items of state list, under which we have two categories and the solution in case of conflict
is also provided that Art. 249 and 250 resolves the conflict of Article 251. Art. 252 and 253
resolves the conflict through Article 254. The difference between Article 251 and Article 254
is that it is for transitory laws whereas Article 254 does not specify the application of the
same.

Some school of thoughts believe that if a constitution provides even one meaningful power to
the state then it has federal character and having a view of division discussed our states have
many meaningful powers with exclusive rights as well. No two states are same and cant
function similarly so is with federalism that no to federations is identical. Indian federation is
an unique federation. Due to economic disparity and unequal distribution of wealth and
unequal economic growth, Catalonia declared itself to be new country from Spain.

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It can be concluded that though the Indian Constitution is not perfect but it fulfils all the
requirements of a federal state and also satisfies the ten yardsticks provides by Ivo D.
Duchacek therefore the India is a federal country.

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