FEDERAL STRUCTURE OF INDIAN CONSTITUTION

National Law University, orissa

ANURAG TRIPATHI

BBALLB(HONS.)

1|P ag e

Electronic
Electroniccopy
copyavailable
availableat:
at:https://ssrn.com/abstract=1562683
http://ssrn.com/abstract=1562683
 FEDERAL STRUCTURE OF INDIAN CONSTITUTION

Every Constitution has only one design. It will be either Federal or Unitary. Before defining the

design of Indian Constitution, I would like to explain the difference Federal and Unitary

Constitution. By a unitary state is a state governed by on single unit in which the central

government is supreme and executive division work out only powers that the central government

chooses to delegate.

By a federal we mean a constitutional division of power between one general government (that is

to have authority over the entire national territory) and a series of sub national governments

individually have their own independent authority over their own territories, whose sum

represents, almost the whole nationality.

The adoption of the G.I. Act, 35 as the basis of the new Constitution had the great advantage of

making the transition from British rule to the new Republic of India without any break with the

past; the old laws and constitutional provisions continued without a break; and thus secured for

India the advantage which an evolutionary change has over a revolutionary break with the past.

Besides, the G.I. Act, 35 had great merits as an instrument of federal government. 1

As the basic feature of Federalism is---

Division of power

Independence of state

Idea of cooperation between general authority and regional authority

Dual government

Have be to a rigid as well as written constitution

1
H.M. Seervai, Constitution of India, (4thed. 2008, Vol I), p. 286.

2|P ag e

Electronic
Electroniccopy
copyavailable
availableat:
at:https://ssrn.com/abstract=1562683
http://ssrn.com/abstract=1562683
 FEDERAL STRUCTURE OF INDIAN CONSTITUTION

Union of autonomous units

Direct authority over the people of both Government

Supremacy of Constitution

In Union of autonomous units, subject to exception or modifications, there is one feature

common to all Federal Constitution, namely, that the general and regional governments under

these Constitutions have plenary power within their respective jurisdiction, as assigned by the

Constitutions, - the general or Federal government having control over nation-wide problem,

extending over the entire Federal territory, while the regional governments control matter within

respective regions only. While in a unitary state, there is only one government but in Federal

State, there are two Governments.

A Federal State derives its existence and every power- executive, legislation or judicial- whether

it belongs to the federation, or to the component State, - is subordinate to and controlled by the

Constitution. A constitutional division of power between the center and the component territorial

units is a central point in most definitions of federalism between the center and the component

territorial units is a central point in most definition of federalism and also in our graphic model

of a federal system and under the VII Schedule and part Vth, VIth of Constitution of India, power

is clearly distributed between centre and state.

The special feature of a Federal Constitutions, which is relevant in the present context and

present, is that since it has to enumerate and limit 2 the respective power of two governments-

Federal and State, it must be written Constitution.

2
Cf. Wheare, Modern Constitutions (1966), p. 19; Federal Government (1963), p. 3, 10, 12, 14n, 33

3|P ag e

Electronic copy available at: https://ssrn.com/abstract=1562683

 FEDERAL STRUCTURE OF INDIAN CONSTITUTION

If we talk about the rigidity of the Indian Constitution is rigid as well as flexible. Under the

Indian Constitution the power and procedure for amendments have been provided under Article

4, Schedule VI and principally under Article 368 of the Constitution. The power to initiate the

amendment is vested with the union in all cases. Ratification of the states for amendments are

not required. However, Article 368(2) indentifies certain types of Amendments which essentially

need the ratification by at least half of the states. The Amendment that requires ratification by at

least half of states are provided under Article 368 (2) (a) to (e) of the Indian Constitution. Thus it

is clear that the Indian Constitution is rigid also.

In a federal system there seems to be an even more acute need for an impartial agency because

the interpretation of the meaning of the constitution includes also the delicate original political

agreement between territorial communities from which the whole federal system had issued.

Under Article 131 of Indian Constitution speaks about the original jurisdiction of the Supreme

Court in any intra-federal dispute between the Government of India and one or more States, or

between two or more state. Thus there is a judicial authority in India, which can ascertain the

meaning of the nation‟s supreme law, the constitution, and that in light of its findings, can

determine the compatibility of any given law or official act, national or local and that has power

of judicial review. And all these power has been provided to the Supreme Court under article

131, 137, 141 and 142…………………etc, Chapter IV, Part V of the Indian Constitution.

If we consider the Ivo D. Duchacek‟s ten yardstick i.e.-

 Exclusive Control Over Foreign Relations

 Immunity Against Secession

4|P ag e

Electronic copy available at: https://ssrn.com/abstract=1562683

 FEDERAL STRUCTURE OF INDIAN CONSTITUTION

 Independent Sphere of Central Authority

 Amending The Federal Constitution

 Indestructible Identity and Autonomy

 Residual and Significant Powers

 Bicameralism and Equal Representation Unequal States

 Two Sets of Courts

 The Supreme Court

 Clear Division of Power

to decide what is the design of Indian Constitution, it is clear that the Constitution of India

satisfies the majority of them to qualify as a federal constitution.

According to Wheare, the Constitution of India is not federal, it is quasi-federal. 3 He said that

any constitution will be federal if it is similar to USA Constitution. But I would like to say that

the American Constitution in itself is not federal. The basic feature of federalism is not satisfied

by the USA Constitution. For example- there should be one written Constitution but in USA,

centre and states have their own Constitution. There are some other basic features of the

federalism that is not fulfilled by the USA Constitution. It was only an example to show that how

USA Constitution is not federal Constitution.

In S. R. Bommai v Union of India 4, several judges have characterized the Indian Federalism in

different ways. SAWANT, J., has observed that5:

3
Wheare, Federal Government, 27-8 (1964); 48 All LJ 21
4
S. R. Bommai v Union of India, AIR 1994 SC 1918: (1994) 3 SCC 1.
5
Ibid, 1977

5|P ag e

Electronic copy available at: https://ssrn.com/abstract=1562683

 FEDERAL STRUCTURE OF INDIAN CONSTITUTION

“Democracy and Federalism are essential part of our Constitution and are parts of its basic

structure.”

JEEVAN REDDY, J. observed 6

“The fact under the scheme of our Constitution, greater power is conferred upon the Center vis-

à-vis the State do not mean that State are mere appendages of the Centre. Within the sphere

allotted to them, States are supreme. The Centre cannot tamper with their powers. More

particularly, the courts should not adopt an approach, an interpretation, which has the effect of or

tends to have the effect of whittling down the power reserved to the states.”

As I have mentioned that the design of Indian Constitution is federal, but there some areas which

create a doubt that is the design of Indian Constitution federal or not.

During emergency, under article 352, the centre gets more overriding powers vis-à-vis the State.

It can be directions to the way they should exercise their executive power [Art. 353(a)]. During a

financial emergency, the Centre can give directions to a state [art. 360(3)], and, under art. 356,

the Centre can take over a State Government when it cannot be carried on in accordance with the

Constitution. 7 Under the Plantation Labour Act, 1951, the executive power is let with the state

but the Central Government has power under S. 41 to give directions to a State Government as to

the carrying into execution of the provision of the Act.

6
Ibid, 2053
7
Prof. M P Jain, Indian Constitutional Law, (5th ed. 2008), p. 664.

6|P ag e

Electronic copy available at: https://ssrn.com/abstract=1562683

 FEDERAL STRUCTURE OF INDIAN CONSTITUTION

In State of Rajasthan v Union of India 8, BEG, C.J., sought to judge the Indian federalism by the

yardsticks propounded by WHEARE (which is not generally accepted now) and characterized

the Constitution as “more unitary than federal”, and having the „appearances‟ of a federal

structure. He also went on to say…………………….. “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 co-

ordinated, and socially, intellectually, and spiritually uplifted.”

Exercise of center was again justified in Karnataka v Union of India9, the court held that “Our

Constitution has, despite whatever federalism may be found in its structure, so strongly unitary

features also in it………..”

If we talk about the finance freedom of the state that is also not fulfilled. Under article 280 (3) (a)

of Indian Constitution, the Finance Commission has been provided power that it shall be the duty

of Commission to make recommendations to the President as to the distribution between the

Union and the States of the net proceeds of taxes……………………, but the Union was not

satisfied with this provision and it makes a body i.e. Planning Commission to decide in the

matter of finance. By the de jure authority Prime Minister is appointed as Chairman of Planning

Commission and the vice-chairman is appointed by Prime Minister itself. By this body near

about 70% of taxes go to center and only 20% goes to the states.

Finally I would like to conclude that in Indian Constitution the provision is such that Center has

been some extra-ordinary power, which has been already discussed that in certain conditions

8
AIR 1977 SC 1361: (1977) 3 SCC 592
9
A.I.R. 1977 S.C. 1361

7|P ag e

Electronic copy available at: https://ssrn.com/abstract=1562683

 FEDERAL STRUCTURE OF INDIAN CONSTITUTION

how centre has supervision over the state. By only that reason Indian Constitution is Federal but

with Strong Union.

8|P ag e

Electronic copy available at: https://ssrn.com/abstract=1562683