INTRODUCTION

Federalism is a system of government in which powers have been divided between the centre
and its constituent parts such as states or provinces. It is an institutional mechanism to
accommodate two sets of politics, one at the centre or national level and second at the
regional or provincial level. In a federation system, there are two seats of power that are
autonomous in their own spheres. A federal system is different from a unitary system in that
sovereignty is constitutionally split between two territorial levels so that each level can act
independently of each other in some areas.

There are two kinds of federations:

1. Holding Together Federation – In this type, powers are shared between various
constituent parts to accommodate the diversity in the whole entity. Here, powers are
generally tilted towards the central authority. Example: India, Spain, Belgium.

2. Coming Together Federation – In this type, independent states come together to

form a larger unit. Here, states enjoy more autonomy as compared to the holding
together kind of federation. Example: USA, Australia, Switzerland.

According to Dr. Subhash Kashyap, “the Indian Constitution establishes a strong center.”
Paylee considers it as “perfectly federal.” Morris Jones terms it “bargaining federalism” and
for K.C. Wheare it is “quasi-federal.” The above description leads to the conclusion that the
structure of the constitution is federal but its spirit is unitary. Granville Austin remarks that
the Indian Constitution is an example of cooperative federalism. There are various
mechanisms which ensure cooperation between the Union and the state governments, such as
provision for Inter-State Councils, Zonal Councils, All India Services, National Development
Council, Planning Process, and Finance Commission. The constitution establishes a federal
structure in India, i.e., there are separate governments of the union and states, and there is a
division of powers between the two. However, there are other constitutional provisions and
practices which impart unitary features to Indian federation by giving more powers and
prominence to the union in comparison to states.1

1
Pant HG, Constitutional System of India- Continuity and Change (Vasudeva Publications 1983).
The framers of the Constitution, kept the Centre-State relations as one of the core aspect of
the choices made by the while framing the Constitution of India. The Union Powers
Committee in their report on July 5, 1947 to the President of the Constituent Assembly
declared that the “soundest framework of our Constitution is a Federation, with a strong
Centre.”2 A strong centre was considered necessary, not only to protect the independence and
preserve the integrity and unity of the country but also to coordinate policy and action
between the Union and the States on the basic issues of national concern.

Unlikeaclassicalafederations,aIndiaaisaaa‘holding-together’afederation i.e. the units did not

comeatogetheratoapoolainatheirasovereignty;ainsteadasovereigntyawasaderivedafromaaa
written constitution imposed from above. Thisakeyadistinction,awhenacomparedato
contractual federations, allowed the Constituent Assembly to opt for a centralised model of
federal relations. Further, the existence of a written constitution, which is a fundamental
feature of all federations, ensures that the different levels of government are co-equal in the
sense that they derive their authority from the same source. Thus the Indian constitutional
scheme differs from the tradition of parliamentary sovereignty characterised by an unwritten
constitution. This implies that the Parliament in India, like State Legislatures in States, is not
sovereign by itself, but derives its authority from the relevant provisions of the Constitution.
This underscores the salience of reviewing the provisions of the Constitution to ensure the
continuing robustness of our democracy.

2
Pritam Singh, Federalism, Nationalism and Development: India and Punjab Economy 60 ( Taylor & Francis e-
library 2008)
 FEDERAL SCHEME OF THE INDIAN CONSTITUTION

The distribution of legislative powers between the Union and the States is the most important
characteristic of a federal constitution.  The object for which a federal state is formed
involves a division of authority between the Central Government and separate states. A
Federal Constitution establishes the dual polity with the union at the centre and the states
at a periphery, each endowed with sovereign powers to be exercised in the field assigned
to them respectively by the constitution. “The one is not subordinate to the other in its
own field; the authority of one is co-ordinate with that of other. 3 In fact, the basic
principle of federation is that the legislative, executive and financial authority is divided
between the centre and state not by any law passed by the centre but by constitution itself.
The nature of distribution of power varies according to the local and political background
of each country.

Our Constitution makers followed the Canadian scheme opting for strong center. The
Government of India Act, 1935 introduced a scheme of three fold distribution viz.,
Federal, Provincial and Concurrent. The present Constitution, based on the principle of
federalism with a strong and indestructible union, adopts the method followed by the
Government of India Act, 1935 and has a scheme of two fold distribution of legislative
powers- with respect to territory; and with respect to subject matter. With respect to
subject matter, The Constitution adopts a three-fold distribution of legislative powers by
placing them in any of the three lists, namely, Union List, State List and Concurrent List.

The Supreme Court in the cases of Kesavananda4 and S.R. Bommai5 have included

federalism in the basic structure and also stated that India is not an absolute federalism 6.
K.C.Wheare, a great authority of federalism states India to be a quasi-federal country and
classifies India as “a unitary state with subsidiary federal principles rather than a federal
state with subsidiary unitary principles.”

3
Dicey, A.V., The Law of the Constitution 151 (1963).
4
Keshavnanda Bharti v. State of Kerela, (1973) 4 SCC 225.
5
S.R. Bommai v. Union of India, AIR 1994 SC 1918.
6
State of West Bengal v. Union of India, AIR 1963 SC 1241.
According to Article 1 of the Constitution of India, India is a Union of States, which
means a Federation of states. There is in a federation, a division of functions between the
centre and the states.

Under the present Constitution, there is scheme of two fold distribution of legislative
powers-

 With respect to territory; and

 With respect to subject matter.

With respect to subject matter, The Constitution adopts a three-fold distribution of

legislative powers by placing them in any of the three lists, namely, Union List, State List
and Concurrent List.

 The constitutional provisions in India on the subject of distribution of legislative powers

between the Union and the States are spread out over several articles (articles 245-254). .
Article 245 talks about distribution of legislative power between Union and State with
respect to territory. In terms of Article 246, The VII th Schedule of the constitution
contains 3 lists, The Union List, State List and Concurrent list.  However, In case of
conflict between a central law and a state law on a subject in concurrent list; the union
law should prevail. Also, In India residuary powers belong to the union government under
article 248 and Entry 97 of Union list. This reflects the leaning of the constitution makers
towards a strong centre. Though in normal times the distribution of powers must be
strictly maintained and neither the State nor the Centre can encroach upon the sphere
allotted to the other by the Constitution, yet in certain exceptional circumstances the
powers of the Union Parliament are extended over the subjects mentioned in the Slate
List. For example, in the national interests, during a Proclamation of Emergency, with the
consent of the State, in case of failure of constitutional machinery in a State etc. Thus
from the scheme of distribution of legislative powers between the Union and the States it
is quite evident that the framers have given more powers to the Union Parliament as
against the States. Yet, the states are not made subordinate units of the centre. In normal
times, they have been granted enough autonomy to act as independent centres of
authority.
 DISTRIBUTION OF LEGISLATIVE POWERS WITH RESPECT TO
SUBJECT MATTER

In terms of Article 246 of the Indian constitution, there is a threefold distribution of

legislative powers between Union and the State Governments. The VII th Schedule of the
constitution contains 3 lists.

1. The Union List gives exclusive legislative powers to union to legislate on 97 items of all

India character including: defense, armed forces, arms and ammunition, atomic energy,
foreign affairs, war and peace, citizenship, extradition, railways, shipping and navigation,
airways, posts and telegraphs, telephones, wireless and broadcasting, currency, foreign
trade, inter-state trade 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, terminal taxes. 12
2.  The State list similarly gives exclusive legislative powers to the states on 66 items, now
expanded to 65 items. Such subjects are essentially subjects of local interest such as
maintaining law and order, police forces, healthcare, transport, land policies, electricity
in state, village administration, etc. The state legislature has exclusive power to make
laws on these subjects.
3. The concurrent list empowers both the union and the states to legislate on 47 items. The
subjects in this list are such that both national government and the governments of the
states are interested in them. 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, stamp duties etc.

 Both the union and the state governments are competent to legislate on subjects in the
concurrent list. In case of conflict between a central law and a state law on a subject in this
list; normally, the union law should prevail. If however a state law reserved for the Presidents
assent receives, his assent, it will prevail over the union law. The power to legislate on a
matter not enumerated in any of the 3 lists is vested in the union Parliament by Art.
248.  Thus in India residuary powers belong to the union government.