time.

It is my great p ri vilege to tha nk my parent for their constant

encouragement througbout my research period.

CHAPTER I: INTRODUCTION

"Federa li sm is no J ooger tJ1e fault J jne of Ce11tre-Slate relali ons h11t the clefinjtj o11

of a new partnership of I eam lnd ja. Citizens n ow h ave the ease of trust. not the

burden of, proof and process "

-NARENDRA MODI

The decision rendered by the Supreme Court in State of \.Vest Bengal v. Union of India
' (1962) is of so importance in Indian j urisprudence for both its unique sol ution and
its application i n subsequent cases. ln this case the Supreme Court had attached the h
ighest

1State of West Bengal v. Union of India;

cases of legislation where inter-State disputes are i nvolved, the sanction of the President
is made maadatory for the validity of those laws.
Further, every State has its j udiciary with t he State High Court at the apex . This
particular th ing in h is opin ion of the learned judge does not affect the federa l
pri ncip le. He wh ile argu ing this gave the parallel of Austral ia. In Austra l ia, appeals
against certain decisions of the High Courts of the Commonwealth of Austral ia lie with
the Pri vy Council. Thus the Indian federation cannot be negated on this account. In
financial matters, the Union has more resources at its disposal as compared to the states.
Thus, the Union being in charge of
the purse strings can always persuade the States to abide by its advice.The powers vested
in
the union in case of na tiona l emergenc ies, interna l d isturbance or externa l aggression,
financial crisis, and failure of the Constitutional machinery of the State are all extraordinary
powers in the natw·e of safety valves to protect the country's future. 4 The power granted to
the Union to alter the bounda ries of the States is also an extraordinary power to meet future
contingencies. In their respective spheres, both executive and legislative, the States arc
supreme. In a nutshell, Justice Subba Rao argued that the Union has a bigger role to play
when compared to states and therefore, the Union powers have to supersede the State's.

Th is minority v iew provided by Justice Subba Rao, in this case, had consistency with the
federa l scheme under the Ind ian Constitution. The Indian Constitution undoubtedly accepts
the federal conce pt and distributes the sovereign powers between the coordinate
Constitutional entities, namely, the Union and the States.
India, like Canada, constitutes an asymmetrical federation in the sense that some states have
constitu tiona lly guaranteed prerogatives setting them apart from the other states of the
federation. However, in the case of Ind ia, rather unlike Canada, the affording of special
status to a group or territori al entity never came easy.5
Digressing a bit from the general federal ism is the concept of Cooperative
federal ism,which is another class of a federal structure. This concept origi nated in the
Austral ian Constitution as there existed a felt need for a change from competit ive to the
cooperative relationship in the working of the federal constitution. This modern view of
federation regards federation as a fuactional arrangement rather than a mere d ivision of
powers between Centre and State. Cooperati ve federal ism6 suggests that the Cen tre and
the States share a horizon ta l relationsh ip and not the one in which one is over & above
the other.
• hups://www .indianfolk.com/wes1-bengal -v-union-i'1dia-legal-analysis/
5 Patrick Hoenig "Federal ism and identity in India"

'Aiyer SP. India's emerging cooperative federalism. Indian J Polit Sci 1960;2 I :307.
importance to an "agreement or compact between states" as an essentia l cha racteristic of
federa l ism. Sin ce such as an agreement was not there in India, i t held that Indi a was
not a federal po·l ity. Subsequentl y, this rul ing was overruled and federal ism was
recognized as the basic str ucture of the Constitution in the Kesavn anda Bharti
case'(1973) and reiterated in the SR.Bommai jud gment3 (1994).

Th is case dealt with the issue of the exercise of sovereign powers by the Indian states. The
Supreme Court, in th is case, held that the Indian Constitution does not promote a principle
of absolute federalism. The court further outlined four characteristics highlighting the fact
that the Indi an Constitution is not a "traditional federal Constitution"
1. Bei ng that there is no provision or separate Constitutions for each State as required
in a federal state. The Constitution of India is the supreme document, which
governs all the states.
2. The Constitution can be a ltered only by the Un ion Parlia ment; whereas the States
have no power to alter i t.
3. In contradiction to a federal Constitut ion, the Indian Constitution renders supreme
power upon the Courts to inva lidate any action which violates the Constitution.
4. The d istribution of powers facilitates loca l governance by the states and national
policies by the Centre.
The Supreme Court fu1iher held that both the legislative and executive power of tbe States
is subject to the respective supreme powers of the Union mean ing that Cen tre is the
ultimate authority for any issue.The political sovereignty is uneven ly distributed between
the U n ion and the St.ates with greater weightage in favour of the Union. Another reason
which m il itates against the theo1y of the supremacy of States is that there is no concept of
dual citizenship in India. The learned judges finally concluded that the structure of India
as provided by the Constitution is centralized, with the States occupying a secondary
posi tion viis-a-vis the Centre.

Conversel.y, Justice Subba R ao was of the v iew that under the scheme of the Indian
Constitution, sovereign powers are distributed between the Union and the States according
to their respective spheres. The legislati ve field of the un ion legislature is much wide
rangi ng than that of the State legislative assembl ies; the laws passed by the Parliament
should, th erefore, have an upper han d over the State laws i n case of any confl ict. In a few
'Keshvananda Bharti V. Union oflndia;(I 973 ) 4 sec 255
3
S R Bommai v. Union of India; AI R I 994 SC 191