LAKHMI CHAND INSTITUTE OF TECHNOLOGY

DEPARTMENT OF LEGAL STUDIES

SESSION 2018-19

PROJECT ON- CONSTITUTIONAL LAW

TOPIC: DISTRIBUTION OF POWER BETWEEN CENTRE AND

STATE/A COMPARATIVE STUDY

SUBMITTED TO

DR.UMME ROOMA

ASSISTANT PROFESSOR

SUBMITTED BY

MANJU DHRUV

LL.B (SEMESTER 1st)

DATE OF SUBMISSION: 6th OCTOBER 2018

 DECLARATION

I Manju Dhruv declare that the project work entitled “Distribution of power between centre
and state/a comparative study” submitted to LCIT college of law, is an original and
authenticated work written by me, under the guidance of Dr. Umme Rooma, assistant
professor of constitutional law. The conclusion therein are based on material collected by
myself

Manju Dhruv

LL.B. (Semester 1st)

 CERTIFICATE

This is certify that Manju Dhruv, student of LL.B 1st semester of LCIT college of law has
completed the project titled “Distribution of power between centre and state/a comparative
study” under my guidance and completed it to my satisfaction. The best of my knowledge,

the present work is the result of her own original investigation and study.

Manju Dhruv Faculty signature:

LL.B (semester 1st )

 ACKNOWLADGMENT

I wish to express my gratitude to Dr. Umme Rooma, the faculty of constitutional law for
providing me opportunity to do my project work on “Distribution of power between centre
and state/a comparative study”

I sincerely thankful, to Mrs. Neemasri Yadav asst. prof. and class co-ordinator of LL.B for
their guidance and encouragement in carrying out this project work.

I also thankful to college administration for providing me resources of research and

opportunity to embark on this project

Manju Dhruv

LL.B (semester 1st )

 ABSTRACT

Federal systems across the globe are full of contradictions. They are both individually unique and yet
respond to similar objectives and expectations in a constantly changing environment. This dynamic is
illustrated by developments in two large federal systems—India and the USA—that have tried to deal
with dramatic differences within their population as they search for ways to make democratic
principles come alive. While differences between the two systems are clear, examining both sets of
players and pressures can prove to be useful to students of both settings.
 TABLE OF CONTENT

DECLARATION ……………………………………………………..I

CERTIFICATE………………………………………………………..II

ACKNOWLADGMENT……………………………………………...III

ABSTRACT…………………………………………………………....IV

1) INTRODUCTION…………………………………………...1

RESERCH AND METHODOLOGY

2) HISTORY OF FEDRALISM IN INDIA

Government of India act (1935) Vs constitution of India (1950)

3) FEDRALISM IN INDIA
i. Nature of Indian federation
ii. Features of federalism
iii. Legislative relations
iv. Administrative relations
v. Financial relations
4) COMPARITIVE STUDY OF FEDARALISM IN INDIA AND U.S.A.

CONCLUSION

BIBLIOGRAPHY…………………………………………………………….
1. INTRODUCTION

Being the largest democratic country in the world, both united state and India are based on federalism
in their political structure. US become a federal republic state by promulgating its constitution in the
year 1789, whereas India become a socialist, sovereign, secular, democratic republic by formally
launching its constitution only in the year 1950. Thereby both countries had attained dominion status
in which a number of smaller states had got affiliated forming a union with strong central government
in India. Thus both states become federal republics.

Federalism is a form of government which has been progressively become more powerful throughout
the globe. There was a time during World War II, when Harold Lasci, the eminent British political
scientist wrote that federalism has come to an end. That was the period of the great economic
depression and the beginning of the World War II, and both of these events have contributed to the
theory of separation of power and it has been a revival to the federal principle to the federal form of
government.

Today, federal form of government and the institution of judicial review are the most widely
expending principle of government. it has been increasingly becoming popular in the new constitution
in the world.

A constitution division of power between the centre and the state federal government which cannot be
arbitrarily altered by will of any government. It is a constitutional demarcation which can make any
law at any moment. But; a constitutional amendment requires a special majority in both the house of
parliament separately and 2/3ds majority in two house of parliament separately and ratification of at
least 50% of state legislature. That is the significance of federal principle.
Research and methodology

Source of data

In dealing with the topic, I have referred to relevant provisions of the constitutions notably like
U.S.A. wherever necessary. I have read many e-books, websites, and books to obtain the right
information, which is relevant to this project work. The data and information given in this project is
based on my research upon various gathered books and websites.

Method of research

The research methodology that has been adopted is purely doctrinal and analytical in nature. Various
noted texts, articles, primary legislations have been studied and a comparative analysis have been
made. All the material referred have been duly be acknowledged. I created this project after analyzing
and investigating every aspect of relevant facts.

Time

It took 1 month to collect all the relevant data and information.

Title

▪ Distribution of power between centre and state/a comparative study.

Problem

▪ What make India a federal state?

▪ Why is India quasi- federalism?

Rationale

▪ To study the distribution of power between centre and state.

▪ To compare the federal structure of U.S.A. and India.

Objective of the project

▪ To analyze the concept of federalism.

▪ To study the distribution of power between centre and state.
▪ To compare the federal structure of U.S.A. and India.
▪ To study the mode of exercising the authority so divided.

Review of literature

▪ V.N. Shukla , Constitution of India

V.N. Shukla constitution of India is an important book of constitution, which deals with
the federal system of India.

▪ Dr. Kailash Rai, Constitutional law of India

Dr. Kailash Rai constitutional law of India is an important book which deals with detail
knowledge of federalism in India.
2. History of federalism in India

It is very important to know the historical legacies in the shaping of any polity. Especially when it
comes to India because Indian socio-politic-economic was wrecked time to time by Huns, Delhi
Sultanate, Mughals and lastly Britishers. And also through the development of mass communication,
the spread of the English language and mass mobilization under MK Gandhi which created political
unity which the national leadership could build upon. The wisdom of founding fathers in the
Constituent Assembly was great move in appeasing of existing turmoil as their first mission. They
surpass the immediate context to lay the foundation of durable democracy, forsaking neither
principles nor their vision of what the Republic of India intended to represent.

Finally, the framework adopted significantly from all existing models of federalism. The constituent
assembly formulated a system which seemed most suited to the needs of the time and the
requirements of federal society. In the absence of any back record from the existing template of norms
and wisdom which were derived from the then dominant models. Therefore, it was called or declared
Quasi-federal.

Government of India act 1935

The Government of India Act, 1935 was passed by British Parliament in August 1935. With 321
sections and 10 schedules, this was the longest act passed by British Parliament so far and was later
split into two parts viz. Government of India Act, 1935 and Government of Burma Act, 1935.

The Government of India Act, 1935 derived material from four key sources viz. Report of the Simon
Commission, discussions at the Third Round Table Conference, the White Paper of 1933 and the
reports of the Joint select committees. This act ended the system of diarchy introduced by the
Government of India Act, 1919 and provided for establishment of a Federation of India to be made up
of provinces of British India and some or all of the Princely states. However, the federation never
came into being as the required number of princely states did not join it.

It was the last constitution of British India which split Burma from it. It lasted until 1947, when
British territory was split into Pakistan and India.

Salient feature of Government of India act 1935

Salient Features of the Government of India Act 1935 were as follow:
• Abolition of provincial diarchy and introduction of diarchy at centre.
• Abolition of Indian Council and introduction of an advisory body in its place.
• Provision for an All India Federation with British India territories and princely states.
• Elaborate safeguards and protective instruments for minorities.
• Supremacy of British Parliament.
• Increase in size of legislatures, extension of franchise, division of subjects into three lists and
retention of communal electorate.
• Separation of Burma from India

Constitution of India 1950

Federalism in India describes the distribution of legal authority across national, state and local
governments in the nation of India. The Constitution of India establishes a federal structure to the
Indian government, declaring it to be a "Union of States". Part XI of the Indian constitution specifies
the distribution of legislative, administrative and executive powers between the Union/Federal/Central
government and the States of India.[1] The legislative powers are categorized under a Union List, a
State List and a Concurrent List, representing, respectively, the powers conferred upon the Union
government, those conferred upon the State governments and powers shared among them.

This federalism is asymmetric in that the devolved powers of the constituent units are not all the
same. The state of Jammu and Kashmir was accorded a higher degree of autonomy than other States
under Article 370.[1] Union Territories are unitary type, directly governed by the Union
government. Article 1 (1) of the constitution stipulates two tier-governance with an additional local
elected government. Delhi and Puducherry were accorded legislatures under Article 239AA and
239A, respectively.

The fundamental rights of citizens vary by state per Article 31 (B), as changes are added to
Constitution schedule IX by constitutional amendments.

The federal features of the Constitution of India are explained below:

1. Dual Polity:-

The Constitution establishes a dual polity consisting of the Union at the Centre and the states at the
Periphery. Each is endowed with sovereign powers to be exercised in the field assigned to them
respectively by the Constitution. The Union government deals with the matters of national importance
like defense, foreign affairs, currency and communication and so on. The state governments, on the
other hand, look after the matters of regional and local importance like public order, agriculture,
health, local government and so on.
2. Written Constitution:-
The Constitution is not only a written document but also the lengthiest Constitution of the world.
Originally, it contained a Preamble, 395 Articles (divided into 22 Parts) and 8 Schedules. At present
(2013), it consists of a Preamble, about 465 Articles (divided into 25 Parts) and 12 Schedules. It
specifies the structure, organization, powers and functions of both the Central and state governments
and prescribes the limits within which they must operate. Thus, it avoids the misunderstandings and
disagreements between the two.

3. Division of Powers:-
The Constitution divided the powers between the Centre and the states in terms of the Union List,
State List and Concurrent List in the Seventh Schedule. The Union List consists of 100 subjects
(originally 97), the State List 61 subjects (originally 66) and the Concurrent List 52 subjects
(originally 47). Both the Centre and the states can make laws on the subjects of the concurrent list, but
in case of a conflict, the Central law prevails.

Which are not mentioned in any of the three lists) are given to the Centre. The residuary subject.

4. Supremacy of the Constitution:-

The Constitution is the supreme (or the highest) law of the land. The laws enacted by the Centre and
the states must confirm to its provisions. Otherwise, they can be declared invalid by the Supreme
Court or the High Court through their power of judicial review. Thus, the organs of the government
(legislative, executive and judicial) at both the levels must operate within the jurisdiction prescribed
by the Constitution.

5. Rigid Constitution:-
The division of powers established by the Constitution as well as the supremacy of the Constitution
can be maintained only if the method of its amendment is rigid. Hence, the Constitution is rigid to the
extent that those provisions which are concerned with the federal structure (i.e., Centre–state relations
and judicial organization) can be amended only by the joint action of the Central and state
governments. Such provisions require for their amendment a special majority4 of the Parliament and
also an approval of half of the state legislatures.

6. Independent Judiciary

The Constitution establishes an independent judiciary headed by the Supreme Court for two
purposes: one, to protect the supremacy of the Constitution by exercising the power of judicial
review; and
Two, to settle the disputes between the Centre and the states or between the states. The Constitution
contains various measures like security of tenure to judges, fixed service conditions and so on to make
the judiciary independent of the government.
7. Bicameralism:-

The Constitution provides for a bicameral legislature consisting of an Upper House (Rajya Sabha)and
a Lower House (Lok Sabha). The Rajya Sabha represents the states of Indian Federation, while the
Lok Sabha represents the people of India as a whole. The Rajya Sabha (even though a less powerful
chamber) is required to maintain the federal equilibrium by protecting the interests of the states
against the undue interference of the Centre.

Sarkaria commission on the union and the state:

The sarkaria commission has recommended for a strong centre. The commission has expressed the
view that a strong centre in necessary to preserve the unity of the country. The sarkaria
Commission's term of reference was to examine the relationship and balance of power between state
and central governments in the country and suggest changes within the framework of Constitution of
India.
3. Federalism in India

Indian model of federalism is called quasi-federal system as it contains major features of both a
federation and union. It can be better phrased as ‘federation sui generis‘or federation of its own kind.
Article 1 of the Constitution of India states that ‘India that is Bharat shall be a union of states’.
Indian federation was not a product of coming together of states to form the federal union of India. It
was rather a conversion of a unitary system into a federal system.

It is a compromise between two conflicting considerations such as autonomy enjoyed by states within
the constitutionally prescribed limit (State List) and the need for a strong centre in view of the unity
and integrity of the country (Union List)

Federal Features of the India Union

• Two governments (i.e. Union Government and State governments).
• Division of powers between the union and its constituents (Seventh Schedule of the Constitution
contains three lists such as the Union List, State List, and Concurrent List).
• Supremacy of the Constitution (Basic structure of the Constitution is made indestructible by the
Judiciary).
• Partial rigidity of the Constitution.
• Independent Judiciary.
• Bicameralism.

Unitary Features of the Constitution

A strong centre – The Union Government becomes all powerful in certain times like emergencies.
Article 200 of the Constitution of India demands that the States must comply with the central laws.
Other features include.

• Single Constitution
• Single citizenship
• Flexibility of Constitution

• Integrated judiciary
• Appointment of the Centre
• All India Services
• Emergency provisions
 The relations between the union and the states may be discussed under the following headings:

1) Legislative relations.
2) Administrative relations.
3) Financial relations.

Legislative relations(article 245 to 255)

Article 245 to 255 deal with the legislative relation between the union and the state. The distribution of
powers between centre and state may be discussed as follow:

1. With respect to territory

2. with respect to subject matter

(1) Territorial jurisdiction (article 245)

Article 245 (1) provides that subject to the provision of this Constitution, Parliament may make laws
for the whole or any part of India and the Legislature of a State may make laws for the whole or any
part of the State. Article 245 (2) provides that a law made by Parliament shall not be deemed to be
invalid on the ground that it has extra-territorial operation, Le., takes effect outside the territory of
India.

The legislative power of the Parliament or the State Legislatures is subject to the provisions of the
Constitution, :

(1) The Scheme of distribution of legislative powers;

(2) Fundamental rights;

(3) Other provisions of the Constitution.

In the case of kuldip nayyar v. union of India, the court held that the doctrine of basic structure in the
context of Indian constitution does not apply to ordinary legislation. The ordinary legislation has only
a dual criteria to meet, namely,-
 i. It should relate to matter within its competence.

ii. It should not be void under article 13 as being an unreasonable restriction on a fundamental
right or as repugnant, to an express constitutional prohibition.

Doctrine of territorial Nexus

Article 245 (1) provides that subject to the provisions of this Constitution, the State may make laws
for the whole or any part of the territory of India, and the Legislature of a State may make laws for the
whole or any part of the State.It means that State laws would be void if it has extra-territorial
operation; it takes effect outside the State. However, there is one exception to this general rule. A
State law of extra-territorial operation will be valid if there is sufficient nexus to the object and the
State.

In State of Bombay v. R.M.D.C., AIR 1957 S.C. 699, the Bombay State levied a tax on lotteries and
prize competitions. The tax was extended to a newspaper printed and published in Bangalore but it
had wide circulation in Bombay. The respondent conducted the prize competitions through this paper.
The Court held that there existed a sufficient territorial nexus to enable the Bombay State to tax the
newspaper.

Delegated legislation or subordinate legislation

Delegated legislation (also referred to as secondary legislation or subordinate legislation) is law made
by an executive authority under powers given to them by primary legislation in order to implement
and administer the requirements of that primary legislation\Delegated legislation is the name given to
legislation or law that is passed otherwise than in an Act of Parliament. Instead, an enabling Act (also
known as the parent Act or empowering Act) confers a power to make delegated legislation on a
Government Minister or another person or body. Several thousand pieces of legislation are made each
year, compared with only a few dozen Acts of parliament aced legislation can be used for a wide
variety of purposes, ran in from relatively narrow, technical matters , to filling in the detail of how an
Act setting out broad principles will be implemented in practice.

Need of Delegated Legislation and Causes of its Growth

1. Pressure of work

Parliament is an extremely busy body. It is overloaded and burdened with legislative work. It has to
enact so many legislation that it can hardly look into detail of every law.
2. Technicality of subjects

Some the legislations required to be enacted may be technical in nature. The members of the
legislature do not enjoy expertise over every subject.

3. To meet unforeseen/emergency situations

There might arise certain contingency were adjustments are required in the prevailing law urgently or
frequently. The process of amendment in the Parliament is a very time consuming and lengthy
procedure. Delegated Legislation gives power of adaptation in new situations. ‘The practice further, is
valuable because it provides for a power of adaption of unknown future condition without the
necessity of amending the legislation.

The method the delegated legislation permits for the rapid utilization of experience, and enables the
rules of consultation with interests affected by the operation of new acts to be translated into practice.

4. Flexibility-

In case of delegated legislation changes in the legislation take place more frequently and without
delay, this is not possible in legislation by parliament. Moreover, the implementation of law becomes
easier and flexible by means of delegated legislation

Disadvantage of delegation

The main criticism of delegated legislation is that it takes law making away from the democratically
elected Parliament. Instead, power to make law is given to unelected civil servants and experts
working under the supervision of a Government minister.

Accountability issue is the problem that the authority vested in Parliament to make law is delegated
away from Parliament, possibly through a number of ‘layers’, for example, to a Government Minister
and to a department and then possibly again to a group of experts.

The accountability issue is the problem of adequate scrutiny. The detailed, technical and specific
nature of much-delegated legislation means that, on the whole, Members of Parliament do not have
the expertise to consider proposed legislation effectively.

The large volume of delegated legislation produces huge number of statutory instruments each year
which means that it is very difficult for Members of Parliament, let alone the general public, to keep
up to date with the present law. This is exacerbated by the fact that delegated legislation is made in
private.
In inder singh v. state of Rajasthan, the Supreme Court has made it clear that the power to extend the
duration of an act may be delegated.

Control on delegated legislation

1. Parliament should emphasize more on working on committee system on subordinate legislation. It

should thoroughly review all details of legated legislation and give their assent only when they are
fully satisfied with proposals. In this way parliament can regain its control over executive.

2. Judicial Review:

All contents of delegated legislation should be subjected to judicial scrutiny and it judiciary finals any
substantive ultra-Virus, procedural Ultra-Virus.
Substantive Ultra-Vires When delegation start is itself unconstitutional, for ex. being violative of a
Fundamental Right. Sometimes the present statues may be constitutional but rules made these under
may suffer from vice of unconstitutionality. Then the rules can be challenged in the court of law.
Procedural Ultra-Vires When rule making authority does not abide by procedural requirements which
the parent law lays down. Delhi Transport Undertaking v. B.B.L. Hajelay, a rule was declared
invalid on ground that it was in conflict with the provisions of the enabling or parent act

4. Pre-requisite approval:

Before passing delegated legislation, executive has to take permission from legislature on various
aspects of delegated legislation. They include both substance as well as procedural asset of delegated
legislature.

5.(1) Committee on Subordinate Legislation (Lok Sabha):

The Committee consists of 15 members nominated by the Speaker. A Minister is not nominated to
this Committee. The Committee scrutinizes and reports to the House whether the powers to make
regulations, rules, sub-rules, by-laws etc. conferred by the Constitution or delegated by Parliament
are being properly exercised by the executive within the scope of such delegation.
(2) Committee on Subordinate Legislation of Rajya Sabha:

Its function is to scrutinize and ensure whether powers to make rules, regulations, bye-laws, schemes
or other statutory instruments conferred by the Constitution or delegated by Parliament have been
properly exercised within such conferment or delegation, a Committee called the Committee on
Subordinate Legislation has been constituted under Rules 204-206 of the Rules of Procedure and
Conduct of Business in Rajya Sabha.

Distribution of legislative power

The divisions of powers are defined by the constitution and the legislative powers are divided into
three lists:-

i. Union list
ii. State list
iii. Concurrent list

Union List

Union List consists of 95 on which the parliament has exclusive power to legislate including: defense,
armed forces, arms and ammunition, atomic energy, foreign affairs, war and peace, citizenship,
extradition, railways, shipping and navigation, airways, posts and commerce, banking, insurance,
control of industries, regulation and development of mines, mineral and oil resources, elections, audit
of Government accounts, constitution and organization of the Supreme Court, High Courts and union
public service commission, income tax, custom duties and export duties, duties of excise, corporation
tax, taxes on capital value of assets, estate duty and terminal taxes.

State List

Telegraphs, telephones, wireless and broadcasting, currency, foreign trade, inter-state trade and

State List consists of 60. Uniformity is desirable but not essential on items in this list: maintaining law
and order, police forces, healthcare, transport, land policies, electricity in the state, village
administration, etc. The state legislature has exclusive power to make laws on these subjects. In
certain circumstances, the parliament can make laws on subjects mentioned in the State List, but to do
so the Council of States (Rajya Sabha) must pass a resolution with a two-thirds majority that it is
expedient to legislate in the national interest.

Though states have exclusive powers to legislate with regards to items on the State List, articles 249,
250, 252, and 253 mention situations in which the Union government can legislate.
Concurrent List

Concurrent List consists of 46 items. Uniformity is desirable but not essential on items in this list. The
list mentions: marriage and divorce, transfer of property other than agricultural land, education,
contracts, bankruptcy and insolvency, trustees and trusts, civil procedure, contempt of court,
adulteration of foodstuffs, drugs and poisons, economic and social planning, trade unions, labor
welfare, electricity, newspapers, books and printing press NS stamp duties.

Other (residuary) subjects/power

Subjects not mentioned in any of the three lists are known as residuary subjects. However, many
provisions in the constitution outside these lists permit parliament or state legislative assembly to
legislate. Excluding the provisions of the constitution outside these lists per Article 245, the power to
legislate on such subjects, rests with the parliament exclusively per Article 248. Parliament shall
legislate on residuary subjects following the Article 368 procedure as constitutional amendments.

In case the above lists are to be expanded or amended, the legislation should be done by the
Parliament under its constituent power per Article 368 with ratification by the majority of the states.
Federalism is part of the basic structure of the Indian constitution which cannot be altered or
destroyed through constitutional amendments under the constituent powers of the Parliament without
undergoing judicial review by the Supreme Court.
Doctrine of pith and substance:

Pith means "true nature" or "essence" and substance means the essential nature
underlying a phenomenon.

Thus, the doctrine of pith and substance relates to finding out the true nature of a statute.

• This doctrine is widely used when deciding whether a state is within its rights to create a
statute that involves a subject mentioned in Union List of the Constitution.
•
• The basic idea behind this principle is that an act or a provision created by the State is valid
if the true nature of the act or the provision is about a subject that falls in the State list.

State of Maharashtra v. F N Balsara AIR 1951 in this case, the supreme court held that the true
nature of the act is prohibition of alcohol in the state and this subject belongs to the State list. The
court looks at the true character and nature of the act having regard to the purpose, scope, objective,
and the effects of its provisions.

Doctrine of colourable legislation:

Doctrine of Colourable Legislation” means that if legislation is disguised, indirect and covert it is
termed as Colourable Legislation.

Although the subject on which the legislature makes laws falls within its competence in outward
appearance but its real intention is to transgress power of other legislature covertly or in disguised
way and by application of this doctrine court can invalidate such law entirely.

Motive and spirit behind it is that “What legislature cannot do directly, it cannot do the same
indirectly also”.

This doctrine was upheld by SC in K.T. Moopil Nair Vs State of Kerala. In this case the Travancore
cochin land tax act was held to be invalid on the ground that the act apparently purported to be taxing
act but in reality it was not a taxing act but was confiscatory in character.

Doctrine of harmonious construction:

Doctrine of Harmonious Construction is one of the cannons of interpretation used for Interpretation of
Statues. The Doctrine states that, a provision of the statue should not be interpreted or construed in
isolation but as a whole, so as to remove any inconsistency or repugnancy.
e.g. In reference to Representation of People Act, 1951

Section 33 (2) says that a Government Servant can nominate or second a person in election.

Section 123(8) says that a Government Servant cannot assist any candidate in election except by
casting his vote.

If both the provisions are read in isolation, it gives rise to a conflicting situation as nomination by
government servant will result into indirect assistance, which is nowhere related to casting of vote but
as nomination is specified by the legislation, it is leading to an inconsistent situation.

But with the help of the Doctrine, when both the provisions are read together, it removes
inconsistency, as the govt. servant has the right to vote as well as to nominate or second a candidate,
while forbidding him to assist the candidate in any other manner.

In state of Bombay v. Balsara, the supreme court gave a narrow meaning to the world “import” and
held that is should not be taken to mean that importer to prohibited liquor in the state of Bombay
could posses and sell it. The act was held valid.

Power of parliament to provide for the establishment of certain additional courts

(article 247):

Article 247 of the Indian Constitution provides power to the Parliament for establishing additional
courts within the Union of India, as and when it considers necessary. If the Parliament is of the
opinion that the present number of court in the Union of India, are proving to be highly inefficient in
dealing with the cases which are coming before it, accordingly by using this article, they can increase
the number of courts in the required places.

Apart from this, even if Parliament feels that a special court is required for better administration of a
particular piece of legislation, the same can be formed using this article.

Power of parliament to legislate with respect to a matter in the state list in the national
interest (article 249):

Article 249 is totally about the provisions provided to parliament for legislating matters related to
state list in national interest.
Article 249(3):

A law made by Parliament which Parliament would not but for the passing of a resolution under
clause ( 1 ) have been competent to make shall, to the extent of the incompetency, cease to have effect
on the expiration of a period of six months after the resolution has ceased to be in force, except as
respects things done or omitted to be done before the expiration of the said period.

Article 249(1) talks about the provisions to legislate.

Article 249(2) talks about renewing the bill after 1 year if the initial scenario (due to which bill was
introduced) exists.

Article 249(3) says, the renewal process (as per article 249(2)) should be completed by within 6
months after the completion of a year. Else the bill will expire. This means if such bills once
legislated shall have at least a minimum of 1.5 years life (1 year tenure + 6 months time to renew).

Power of parliament to legislate with respect to any matter in the state list if a
proclamation of emergency is in operation (article 250):

Article 250 says “It is the power of parliament to legislate with respect to any matter in the state list if
a proclamation of emergency is in operation”. When there is a national emergency (Like state wide
Military Coup) the centre (what we call the parliament in India) becomes entitled to give executive
directions to a state on any matter. It is under the basic structure of the Indian Constitution that a
central law will prevail in concurrent list if a state and the centre has a conflict on a particular subject
(say Prisoner Rehabilitation). This means that Constitution expressly secures the Dominant position of
Centre over states.

Inconsistency between laws made by Parliament under Articles 249 and 250 and laws
made by the Legislatures of States

First of all it states nothing in Articles 249 and 250 shall restrict the power of the Legislature of a
State to make any law, which under this Constitution it has power to make.

However, if any provision of a law made by the legislature of a State is repugnant to any provision of
a law made by Parliament, which Parliament has under either of the said articles (249 and 250) power
to make, in that case the law made by Parliament, whether passed before or after the law made by the
legislature of the State, shall prevail, and the law made by the Legislature of the State shall to the
extent of the repugnancy be inoperative, but only as long as the law made by Parliament continues to
have effect. This means once the law made by the Parliament cease to have effect that law made by
state legislature will again come into effect.
Power of parliament to legislate for two or more state by consent and adoption of such
legislation by any other state (article 252)

Article 252 deals with the states. In Article 252, the parliament has power to legislate over an issue
which is referred by the state or states by their consents. And also any other state can adopt the same
legislation.

For example Kerala and Tamil nadu can ask for water disputes. (Under article 252).

Legislation for giving effect to international agreements (article 253)

Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make
any law for the whole or any part of the territory of India for implementing any treaty, agreement or
convention with any other country or countries or any decision made at any international conference,
association or other body.

Repugnancy between union law and state law (article 254)

Article 254 talks about a situation where there arises a conflict between the Central and the State law.
What it primarily does is that it provides absolute supremacy to Central Government to make laws
and in effect the division made between State and Center is negated. For this reason many people
have argued that India does not have a Federal form of government. So to state more clearly, clause
(1) of the Article says that in case the Parliament enacts a law, with respect to a matter enumerated in
the concurrent list (both Center and State have the power to make laws on matters listed here), which
is in conflict (whether at the time of enactment or subsequently) with a law enacted by the Legislature
of the State then, in that case, the law enacted by the Parliament shall prevail to the extent there is a
conflict. This clause is subject to clause (2) of the Article.

Clause (2) provides and exception to clause (1) that if the State Legislation has received the assent of
the President then such law shall prevail over and above the Central law. However, the Center can, if
it wants, override such a law which has received President’s assent by enacting a subsequent law.

In State of Kerala v. M/s Man appraem Kuri Co. Ltd., the court held that the word ‘made’ used in
article 254 has to be read in the context of law-making process and so read, it is clear that to test
repugnancy one has to go by making of law and not by its commencement.
Requirement as to recommendations and previous sanctions to be regarded as matter of
procedure only (article 255)

This article provides that any law made by parliament or state legislature will not be invalid only
because some recommendations or prior sanction from Governor, LG, President etc. was not taken.

Administrative relations (article 256 to 263)

The administrative jurisdiction of the Union and the State Governments extends to the subjects in the
Union list and State list respectively. The Constitution thus defines the clauses that deal with the
administrative relations between Centre and States.

a) Directives by the Union to the State governments: (Article 256) mentions that the executive
power of every state shall be so exercised as to ensure compliance with laws made by Parliament and
any existing laws, which apply in that state, and the executive power of the Union shall extend to the
giving of such directions to a state as may appear to the Government of India to be necessary for that
purpose. This provision is looked upon with suspicion in many countries.

This power of the Union extends to the limit of directing a State in a manner it feels essential for the
purpose.

For instance, the Union can give directives to the State pertaining to the construction and maintenance
of means of communication, declared to be of national or military importance, protection of railways
within the State, the provisions of adequate facilities for instructions in mother tongue at the primary
stage of education to children belonging to linguistic minority groups in the State and for the drawing
up and execution of the specified schemes for the welfare of the Schedule Tribe in the State.

This is essential to ensure the implementation of Parliamentary laws throughout the country. Non-
compliance of the directives might lead to a situation mentioned under Art.365 and then it shall be
lawful for the President to hold that a situation has arisen in which the government of the State cannot
be carried on in accordance with the provisions of the Constitution.

Thus, the Union can invoke Article 356, for the imposition of President’s rule in the State and take
over the administration of the State.

b) Delegation of Union functions to the States : Usually executive powers are divided on the
basis of subjects in the lists, but under the constitutional provision of Article 258(1) the President
may, with the consent of the State government, entrust (either conditionally or unconditionally) to that
government any of the executive functions of the Centre.
Under Art 258(2), the Parliament is also entitled to use the state machinery for enforcement of the
Union laws, and confer powers and entrust duties to the State. Under Art 258A, the State can also,
with the consent of the Union government, confer administrative functions to the Union. In respect of
matters in the Concurrent list, executive powers rest with the State, except when a constitutional
provision or a Parliamentary law specifically confers it to the Centre.

c) All India Services: Besides the Central and State services, the Constitution under Article
312 provides for the creation of an additional “All-India Services“, common to both the Union and
States. The State has the authority to suspend the officials of All India Services, but the power of
appointment and taking disciplinary action against them vests only with the President of India.

The idea of having an integrated well-knit All India Services to manage important and crucial sectors
of administration in the country was incorporated in our Constitution. Their recruitment, training,
promotion, disciplinary matters are determined by the Central government. A member of the Indian
Administrative Service (IAS), on entry into the service is allotted a State, where he/she serves under a
State government.

Though, it can be argued that the All India Services violate the principle of federalism, but such an
arrangement, wherein a person belonging to the All India Service being responsible for administration
of affairs, both at the Centre and States, brings cooperation in administration and helps to ensure
uniformity of the administrative system throughout the country. Currently, there are three All India
Services, namely IAS, IPS and IFoS (the Indian Forest Service was created as the third All India
Service in 1966 by Art.312).

d) Constitution of Joint Public Service Commission for two or more States: Article 315
(2)When two or more states, through a resolution to that effect, in their respective legislatures agree to
have one such Commission, the Parliament may by law, provide for a Joint Commission.

There is also a provision in the Constitution, wherein on request by two or more States, the UPSC can
assist those states in framing and operating schemes of joint recruitment to any service for which
candidates with special qualifications are required.

e) Inter-State Council: (Article 263) India is a Union of States, wherein the Centre plays a
prominent role, but at the same time is dependent on the States for the execution of its policies. The
Constitution has provided for devices to bring about inter-governmental cooperation, effective
consultations between the Centre and States so that all important national policies are arrived at
through dialogue, discussion and consensus.
One such device is the setting up of the Inter-State Council. The President is given
powers under Article 263 of the Constitution to define the nature of duties of the Council. The
Council is to inquire into and advise upon disputes, which may have arisen between the States.

In addition, it may investigate and discuss subjects of common interest between the Union and the
States or between two or more States, in order to facilitate co-ordination of policy and action. The
inter-state council was set up under Article 263 of the Constitution in 1990. The ISC has held 10
meetings so far and has taken several important decisions. Some of them are:

1. Time-bound clearance of bills referred for the President’s consideration

2. Approved the Alternative Scheme of Devolution of Share in Central Taxes to States
3. Indiscrete use of Article 356 in the country

f) Inter-State river water dispute:

Article 262 states that the Parliament may, by law, provide for the adjudication of any dispute or
complaint with respect to the use, distribution or control of the waters of, or in, any inter-state river or
river valley and it may by law provide that neither the Supreme Court, nor any other court shall
exercise jurisdiction in respect of any such dispute.

Apart from this, Art.355 imposes duties on the Centre to protect every State against external
aggression and internal disturbances and to ensure that the Government of every State is carried on, in
accordance with the provisions of the Constitution.

In case of National Emergency (Art. 352), the Centre becomes entitled to give executive directions
to a State on any matter.

Similarly, during President Rule (Art. 356), the President can assume to himself the functions of
State government and the power vested in Governor or any other executive authority in the State.

During operation of Financial Emergency (Art.360), the Centre can direct the States over certain
financial matters and the President can give other necessary directions, including reduction in salary
of persons serving in the State and the Judges of the High Court.
 Financial relations

The Indian Constitution has elaborate provisions regarding the distribution of revenues between the
Union and the States.

Article 268 to 293 in Part XII deal with the financial relations. The financial relations between the
Union and the States can be studied under the following heads:

• Taxes and duties levied by the Union, but collected and appropriated by the States:

Stamp duties and duties of excise on medical and toilet preparations are levied by the Government of
India, but collected and appropriated by the States, within which such duties are leviable, except in the
Union Territories, where they are collected by the Union Government (Art. 268). The proceeds of
these duties levied within any State are assigned to that State only and do not form a part of
Consolidated Fund of India.

Service tax levied by the Centre, but collected and appropriated by the Centre and the
States:

Taxes on services are levied by the Centre, but their proceeds are collected and appropriated by both
the Centre and the States. Principles of their collection and appropriations are formulated by the
Parliament.

• Taxes levied and collected by the Union, but assigned to the States within which they are
leviable (Art.269):

a) Succession duty in respect of property, other than agricultural land.

b) Estate duty in respect of property, other than agricultural land.

c) Terminal taxes on goods or passengers carried by railways, sea or air.

d) Taxes on railway fares and freights taxes on transactions in Stock Exchanges.

• Taxes levied and collected by the Union and distributed between the Union and the
States (Art.270):

Certain taxes are levied as well as collected by the Union, but their proceeds are divided between the
Union and the States in a certain proportion in order to effect an equitable distribution of the financial
resources.
 This category includes all the taxes and duties referred to in the Union List, except the three
categories mentioned above, any surcharge and any cess levied for specific purposes. The manner of
distribution of net proceeds of these taxes is prescribed by the President, on the recommendation of
the Finance Commission.

• Surcharge on certain taxes (Art.271):

The Parliament is, authorized to levy surcharge on the taxes mentioned in the above two categories
(Art.369 and Art.370) and the proceeds of such surcharges go to the Centre exclusively and are not
shareable.

• Taxes levied and collected and retained by the states:

These are the taxes enumerated in the State List (20 in number) and belong to the States exclusively.

• Grants-in-Aid:

The Parliament may make grants-in-aid from the Consolidated Fund of India to such States as are in
need of assistance (Art.275), particularly for the promotion of welfare of tribal areas, including
special grant to Assam.

These are called statutory grants and made on the recommendation of the Finance Commission.
Apart from this, Art.282 provides for discretionary grants by the Centre and States both, for any
public purposes. The Centre makes such grants on the recommendation of the Planning Commission
(an extra-constitutional body).

• Loans:

The Union Government may provide loan to any State or give guarantees with respect to loans raised
by any State.

• Previous sanction of the President (Art 274):

No Bill or amendment can be introduced or moved in either House of Parliament without the previous
sanction of the President, if:

1. It imposes or varies any tax in which the States are interested; or

2. It varies the meaning of the expression “Agricultural Income” as defined in the Indian Income-Tax
Act; or
3. It affects the principles on which money are distributed to the States; or
4. It imposes a surcharge on the State taxes for the purpose of the Union
5. According to Article 301, Freedom of Trade, Commerce and Intercourse throughout the
territory of India is guaranteed, but Parliament has the power to impose restrictions in public
interest.
6. Although taxes on income, other than agricultural income, are levied by the Union, yet the State
Legislatures can levy taxes on profession, trade, etc.

7. Distribution of non-tax revenues: Non tax revenues from post and telegraph, railways, banking,
broadcasting, coinage and currency, central public sector enterprises and escheat (death of a person
without heir) and lapse (termination of rights) go to the Centre, while State receives non-tax revenues
from irrigation, forests, fisheries, state public sector enterprises and escheat and lapse (if property is
situated in that state).

Provision has been made for the constitution of a Finance Commission to recommend to the
President certain measures for the distribution of financial resources between the Union and the
States (Art.280).

Under the situation of emergencies, these financial relations also undergo changes according to the
situation and the President can modify the constitutional distribution of revenues between the Centre
and the States.
 4. COMPARATIVE STUDY OF FEDERALISM IN
INDIA AND U.S.A.

Comparison between Indian federalism and the USA federalism

There are certain similarities as well as differences between American Federalism and Indian
Federalism-

Both United States and India which are considered as the largest democratic countries in the world are
based on federalism in their political structure. The US gained the status of Federal Republic State in
the year1789; whereas India occupied the status of Socialist, Sovereign, Secular, and the Democratic
Republic by enacting its Constitution in the year 1950. Thereby both countries had attained dominion
status in which several smaller states got associated with a strong central government which is known
as Federal Government in the US and Central Government in India. Thus, both states became Federal
Republics.

During framing of the Constitution, the drafting committee headed by Dr.Ambedkar, borrowed many
features from Constitutions of other countries including US which was adopted in the Indian context.
Hence, both U.S and India, even though federal in character have certain similarities as well as
differences between them.

Similarities between the federalism of US and India

1) Written Constitution

The Constitution of both US and India is a written Constitution, which provides for a federal political
structure where both the governments exercise their respective powers. The Constitutions of both the
countries provide for amending the Constitution to meet the changing circumstances and the growing
political, economic, social needs and demands political and economic needs and demands of their
respective countries.
2) Bill of Rights and Fundamental Rights

The US Constitution has given its citizens fundamental rights such as the right to equality, freedom,
right against exploitation, freedom of religion, cultural and educational rights, right to property, and
the right to Constitutional remedies etc. by means of ‘The Bill of Rights’, Part III of the Indian
Constitution guarantees the fundamental rights of the people as given in Articles 14 to 34.

3) Supremacy of the Federal or Union Government

In both the countries, the federal government works at the centre in which various states have acceded
to. In the US, there are 50 states who have associated them to the federal government and in the
Indian Union, as many as 29 states and 8 Union territories have accepted this form of government.
Both in US and India, states which have accepted the Federal set up have no individual power to
separate from the Central Government or the Union Government. While both the Central as well as
State Government is empowered to makes laws on subjects given in the concurrent list, the law
enacted by the Federal or Union Government will prevail over the law enacted by the states on the
same subject in case of dispute. Thus, Federal or Union Government is supreme in the present federal
structure.

4) Separation of powers

Both US and Indian Constitutions provides for separation of powers among three institutions namely
executive, legislature and judiciary. Each division is empowered with a separate power. The executive
governs the country, the legislature makes laws, and the judiciary ensures justice. President of US is
the chief executive head of US, whereas the Union cabinet headed by the Prime Minister is the real
chief executive body in India. Both US and India have a bicameral legislature. The upper and the
lower houses of US legislature are called as the House of Senate and the House of Representatives
respectively, and the Indian Parliament has Lok Sabha and Rajya Sabha as its Lower and Upper house
respectively.

5) Powers of Checks and Balances

Though there is a clear-cut separation of powers between executive, legislature and judiciary in both
countries, still there can be overlapping of these powers. There are chances of abuse of power or
arbitrariness. Thus, there is a need for a system of ‘checks and balances’ prevalent in both countries.
The President having chief executive power appoints the members of his ‘Kitchen Cabinet’ and he is
the Supreme Commander-in-Chief of Army, Navy and the Air Force. He is empowered to appoint the
Chief Justice of the Supreme Court of the US. He enters into treaties with other countries. However,
his treaties must be approved by the House of Senate. Otherwise, the treaty will not come into force.

Similarly in India, it is the Prime Minister and his cabinet who exercise real power. They can be
removed from power by a successful no-confidence motion passed by both houses of parliament. The
policy decisions become laws only after obtaining the requisite majority of the parliament. However,
the laws enacted by the parliament are subject to the judicial review of the Supreme Court of India.

Thus, the powers of checks and balances have been the efficient method both in the US and in India in
protecting the democracy in both countries.

Differences between the federalism of US and India

There are certain differences that exist between the federalism of US and India. These differences
have been created by the architects of the Indian Constitution. The US federalism is very strong and
more rigid as envisaged in their Constitution by its leaders. It is more federal than unitary in character.
Whereas, India is more unitary than federal and we can even say that it is a quasi-federal state.

1) The Constitution of US is very rigid than the Indian Constitution

The Constitution of US is very precise and rigid running into only a few pages, whereas the
Constitution of India is very bulky containing as many as XXII parts, 395 articles, and ten schedules.
Since the US Constitution is very rigid, the provisions meant for amending the Constitution are also
very rigid and more formal. The US Constitution has been amended only 27 times. Whereas, the
Indian Constitution, which came into force in the year 1950, has so far been amended 94 times.
Therefore, it is easy to amend the Indian

2) While the US has the Presidential form of Government, India has the Parliamentary form of
Government

In the US, the President is the head of the state and so his government is popularly referred as the
Presidential form of government. India, on the other hand, has a Parliamentary form of Government
as the Prime Minister with his cabinet exercises real power with the President being only a nominal
head. The President of US holds office for a period of four years while the Indian Prime Minister
holds power for five years as long as his political party enjoys a majority in the Lok Sabha. While the
US follows the bi-party system, India has a multi-party system and a complicated process of election.
4) Differences in the judicial system between US and India

US being a developed country have an advanced judicial system. The judicial system of India is
however rapidly developing. A Judge in the US holds office as long as he is capable of performing his
duties. Indian Constitution on the other hand states that a District judge holds his post till the age of
58, a High Court judge holds till the age of 62 and a Supreme court Judge retires at the age of 65.

5) Difference in citizenship

The Constitution of India recognizes single citizenship. On the other hand, USA Constitution provides
for a double citizenship that is a US citizen can have citizenship of two countries, USA and some
other country.
4. CONCLUSION

As has been rightly described above by Mr. Goyal that India desperately suffered from numerous
socio-economic problems due to its past colonial history and the reluctance of various States like
Hyderabad, Kashmir etc to join the Union of India, that India's founding fathers didn't conceived our
nation in the lines of American Federation.

India is rightly described as quasi-federal where States were made its part, post-independence.
Whereas in case of USA, states came together mutually to form a Federation. Moreover, nature of
India's quasi federal structure can be well proved by makeup of our Constitution, where dominating
powers are given to Central Government.

It can be said that historical precedents played major role for deciding the nature of Federation in both
the countries.

The constitution of India neither is a complete federation nor is it completely unitary. It has the
features of both, the Constitution of India is neither purely federal nor unitary, but is a combination of
both. It is a union or a composite of a novel type. It is often defined to be quasi-federal in nature. Thus
we can safely say that It is primarily federal having some unitary features.
 BIBLIOGRAPHY

Book referred

➢ Dr. Kailash Rai , Constitutional law of India 11th edition

➢ Dr. J.N. Pandey, Constitutional law of India 15th edition

Website referred

➢ http:// www.quora.com
➢ http://www. iasscore.in
➢ http:// onlinejournal.in
➢ http://www. academia.com