Quasi Federalism

India was created on the momentous day of 15th August 1947 and since then; there
have been numerous thoughts on the nature of the Indian Constitution.
The makers of Indian constitution have carefully handpicked the provisions and
drafted the present - day testament to the chef-d'oeuvre that is the Constitution of
India. The Indian Constitution has been opined to be unitary by some while it has
been articulated to be federal by the others. India’s constitution is of the federal
type. It is a member of the family of federations, of which the better-known
members are the U.S.A., Canada and Australia.

The Indian Federalism has been devised after a close and meticulous study of the
contemporary trends in these federations. The Indian Federal scheme while
incorporating the advantages of a federal structure, yet seeks to alleviate some of
its customary weaknesses of rigidity and legalism. It does not therefore follow
strictly the conservative or traditional federal pattern. This nature of the Indian
system and federalism have been studied comprehensively and demonstrated
below.

Federalism: A Universal View

Prior to scrutinizing the nature of the Indian constitution, it is exceedingly essential

to appreciate the meaning and quintessence of Federalism.

Federalism is one of the most significant factors of modern constitutionalism. It is

established all over the world perhaps, as the only form of political organization
suited to communities with diversified pattern of objectives, interests and
traditions, who seek to join together in the pursuit of common objectives and
interests and the cultivation of common tradition.

The basic objective of federalism is unity in diversity, devolution in authority and

decentralization in administration. The basic condition of federalism is plurality; its
fundamental tendency is harmonization and its regulative principle is solidarity.

According to Daniel J. Elazara, - Federal system provides a so as to allow each

to maintain its fundamental political integrity.
Federalism or Federal Structure is a complex governmental mechanism of a
country which seeks to establish a balance between the forces working in favour of
concentration of power in the centre and those urging a disposal of it in a number
of units. A federation is a political contrivance to reconcile national unity with
state rights. Its originality lies in the fact that power at once is, concentrated as well
as divided

K.C. Whearedefines federal government as,An association of states, which has

been formed for certain common purposes, but in which the member states
retain a large measure of their original independence.

Federalism usually comes about by a contract or constitution between the territorial

governments to unite and form, in specified areas, a central set of laws, such as to
represent all internationally, and in national legislation re criminal and commercial
laws. It is essentially a composite polity consisting of a national or central
government administering subjects of national interest and a multitude of sub
machinery of governments of the component units of federation called the state or
provincial governments.

Any citizen of a federal country thus becomes a subject to the decrees of two
governments- Central machinery and State machinery. A federal Constitution
envisages a demarcation of governmental functions and powers between the Centre
and the regions by the sanction of the Constitution, which is a written document[6].
These sub components administer subjects of local interest. However, there are
some subjects who are of common interest to both the centre and the states.

These are generally compiled to form a concurrent set governed by both the Centre
and the Sub – machinery. The federal polity, in other words, provides a
constitutional device for bringing unity in diversity and for the achievement of
common national goals

Features of a Federal Constitution:

A Federation or a Federal structure of Constitution has definite prominent features.

They are:
1. Dual Polity: The crux, pivotal point of a federal constitution is division of
powers between the centre and the states. There is a supreme government at the
centre and there is also a provision to establish independent body at the state level.
The whole structure of the federal system continues to revolve around this central
point

2. Supremacy of the Constitution: Federal Constitutions follow the principle

of Suprema Lex, that is, Supremacy of the Constitution. The States’ existence and
its powers are derived from the Constitution. All laws enacted both at the Centre
and the State level ought to be in line with the Constitutional scheme.

3. Written Constitution: A Federal nation cannot exist without a written

Constitution. A written constitution is mandatory. Examples of federal nations with
written constitution are: USA, Canada, India and Australia. It is also to be noticed
that a unitary state can exist without a written constitution but not a federal state.
Eg: United Kingdom.

4. Rigid Constitution: Rigidity in amendment is a distinctive feature of a federal

constitution. For example, In Switzerland, a Referendum is necessary for any
amendment to the Constitution. In Sweden, if the Constitution is amended, an
intervening election is conducted. Therefore, Rigidity is an inherent feature.

5. Sovereignty of the amending body: Both the centre and the state governments
derive their powers from the constitution. Therefore, the sovereign power rests
with the body that can amend the constitution.

As the features of a Federal State have been established above, connecting the
same with the Indian constitution to examine Federalism in India is necessary.

Nature of the Indian Constitution: Federal or Quasi-federal?

“The Indian federation is an example of co-operative federalism. India has created
a strong central government; it has not made the state government weak”. -
Granville Austin

The Preamble of the Indian Constitution reads as follows:

“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into
a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and
to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of
thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity; and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of
the Nation;

IN OUR CONSTITUENT ASSEMBLY, this twenty sixth day of November, 1949,

do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS
CONSTITUTION.”

As can be seen from above, the preamble does not mention India as a Federal state.
No article in the Indian constitution describes India as a Federal state and there is
no mention of the word federal. The Constitution seeks and defines India to be
‘Union of States’ with a federal structure. Although the term ‘federal’ does not
appear in the Constitution, it often arose in Constituent Assembly debates

As can be seen from above, the preamble does not mention India as a Federal state.
No article in the Indian constitution describes India as a Federal state and there is
no mention of the word federal. The Constitution seeks and defines India to be
‘Union of States’ with a federal structure. Although the term ‘federal’ does not
appear in the Constitution, it often arose in Constituent Assembly debates.

The passing of India Independence Act and the subsequent partition of India made
the Constituent Assembly to take up a more unitary version of federalism.
Mahatma Gandhi also favoured the decentralized structure and preferred a
panchayat or village based federation. On the other hand, the then Prime Minister
Jawaharlal Nehru and Dr B.R. Ambedkar were in favour of a unitary system of
governance while the Home Minister Sardar Vallabhai Patel also stood for the idea
of federalism.

India has all the aforementioned qualities of a federal state. Infact, in the Indian
Constitution there is also a provision for the distribution of subjects between the
Centre and the states in the form of lists. Under the constitution, there is a three-
fold distribution of legislative powers between the Union and the states, made by
the three Lists in the seventh schedule of the constitution.

Through these lists, the Indian Constitution seeks to create three functional areas:
1. An exclusive area for the centre

2. An exclusive area for the states

3. A common or concurrent area in which both the Centre and the States may
operate simultaneously, subject to the overall supremacy of the centre.
Allocation of subjects to the lists is not by way of scientific or logical definition
but by way of a mere enumeration of broad categories. The power to tax cannot be
deducted from a general legislative entry as an ancillary power.

The Union list has 99 entries. It includes Defence, Preventive Detention, Foreign
affairs Transportation and Communications Properties of the Union, Financial
Powers, Economic Powers, Cultural and Educational Functions, Union Services,
Elections, Parliamentary Affairs, Judicial Powers, Miscellaneous Entries and
Residuary Entry.

The State List covers, Law and order, Justice, Health, Local government, Relief to
the Disabled, Libraries, Communications, Land and agriculture, Trade, Commerce
and Industry, State Property, Intoxicants, Entertainments, Elections and Legislative
privileges, State Public Services, Finance and Taxation, Miscellaneous such as
pilgrimages. Etc.

The concurrent List covers Basic Laws in the country, Public Welfare, Forests,
Labour, Education, Economic Power and Planning, Communications,
Miscellaneous provisions including professions, newspapers etc.

India has a political and constitutional structure where federal features are evident.
There is sharing of power between the Centre and the States but the Constitution
provides Central Government with supreme powers and concentrates
administrative and financial powers completely in its hands.

Former Chief Justice Beg called the Constitution of India as ‘amphibian’. He said
that “…. If then our Constitution creates a Central Government which
is amphibian, in the sense that it can move either on the federal or on the unitary
plane, according to the needs of the situation and circumstances of a case…” It has
also been called Pragmatic Constitution in the words of Justice Ahmadi.

The phrase ‘semi-federal’ was used for India in State of Haryana v. State of
Punjab, whereas in Shamsher Singh v. State of Punjab, the constitution was called
‘more unitary than federal.’

Common Citizenship:

The citizens in a quasi- federal state enjoy a common or a single citizenship. They
do not have two citizenships, that is, one for the state and one for the country.
Indians have only one citizenship unlike the citizens of the United States of
America.
Armed Forces:

The Armed Forces can be deployed in the States at the Centre’s will without the
consultation of the State Government. This amounts to a centralised system of
government sometimes creating internal disturbances. Eg: AFSPA – Armed Forces
Special Powers Act.

Power to make Laws:

Article 249 gives the Parliament the power to make laws under the State list. Such
law can also be legislated at a special request of a group of states. Also during
President’s Rule in a state all the bills pending in the dissolved and the State
Legislature is moved to the Parliament which makes a decision to make the bill
into a law or not. When President’s Rule was imposed in Uttarakhand, the
Financial Bill seeking funds from the Centre was pending in the State Legislature.
This was later moved to the Parliament which sanctioned only 40% of the amount
sought. This power of Parliament to make laws under the State List or during
President’s Rule makes the Indian Constitution quasi- federal.

Emergency:
Only the Centre has the power to impose emergency under Articles 352, 356 and
360. Emergency under Article 352 can be imposed only when the nation is
threatened by external aggression or armed rebellion. Such an emergency was
imposed in the 1970’s during Indira Gandhi’s tenure as Prime Minister.Emergency
proclaimed due to failure of Constitutional Machinery in the State under Article
356 has been the most controversial provision due to the abuse of power by the
Centre. Surprisingly, prior to the S.R. Bommai case, President’s Rule had been
imposed 90 times. It is only in S.R. Bommai v. Union of India that the Supreme
Court cracked the whip and laid down guidelines for the implementation of Article
356.

Residuary Powers:

The power which allows the Centre to make laws on subjects not mentioned in List
II and III is known as Residuary Powers. This is enjoyed by the Centre only. Laws
of investigative agencies not mentioned in any of the lists empower the Parliament
to frame laws on the same by virtue of Article 248.

Single Integrated Courts:

A federal state generally has two distinct lines of courts, that is, one apex court
within the state and the other apex court at the Center. They can also form different
laws and change legislation in each state. In the instance of the USA, it has Federal
Courts and State Courts. The Federal Courts have jurisdiction only to deal with
Congress formulated Legislation and similarly State Courts for state made laws.
Death penalty is illegal in some states while it is not illegal in some states. Same is
the case with legalization of Gay marriages.

Comparison of Indian Constitution with the other Federations of the World:

There are marked differences between the American federation (which is the
classical federal model) and the Indian federation.

First, in America, there is a dual citizenship, whereas, in India, there is only one
citizenship. Indian citizens, wherever they reside, are equal in the eyes of Law.

Secondly, the states in America, have a right to make their own constitutions,
whereas no such power has been given to the states in India.

Thirdly, the Indian constitution exhibits a centralising tendency in several of its

provisions, e.g., adoption of a lengthy concurrent list, the power of parliament to
re-organise the political structure of the country, supremacy of parliament over
state legislatures if there is a direct conflict between their respective jurisdictions,
vesting of the residuary legislative power in Parliament and powers of Governors
to reserve bills for the consideration of the President of the Republic.

Fourthly, in certain circumstances, the Union is empowered to supersede the

authority of the state or to exercise powers otherwise vested in the states.

The federal structure of the constitution was discussed in the landmark case of
Keshavananda Bharati Sripadgalvaru v. State of Kerala

A well - crafted, and more importantly, well-functioning system of federal

governance, by virtue of its manifold benefits, plays a key role in promoting the
stability and prosperity of nations as the heights attained in development by the
leading federations of the world – USA, Canada, Australia and Switzerland –
demonstrate. Unless, carefully crafted, federal systems do not sustain as
demonstrated by the fragmentation of many of the federal creations that came into
being in the last century, such as Soviet Russia, Yugoslavia, Czechoslovakia,
Rhodesia, and Nyasaland. As earlier stated, the Indian constitution though, claims
to be decentralized and federal is somehow too centrist.

Case Laws and Federalism:

Federalism has been discussed in many case laws in the Indian context. Few of the
Landmark judgments will be discussed under:

Article 356 has been the most controversial provision due to the abuse of power by
the Centre. Surprisingly, prior to the S.R. Bommai case, President’s Rule had been
imposed 90 times. The case of S.R.Bommai vs Union of India is a landmark case
in the purview of the Indian Constitutional history relating to the proclamation of
emergency under Article 356 of the Constitution. The case mainly came up with
the issue, of the power of the President to issue proclamation under Article 356 of
the Constitution including the power to dissolve State Legislative Assemblies and
also issues relating to federalism and secularism as a part of basic structure.
In this case, Janata Party being the majority party in the State Legislature had
formed Government under the leadership of Shri S.R. Bommai.

In September 1988, the Janata Party and Lok Dal merged into a new party called
Janata Dal. The Ministry was expanded with addition of 13 members. Within two
days thereafter, one Shri K.R. Molakery, a legislator of Janata Dal defected from
the party. He presented a letter to the Governor along with 19 letters, allegedly
signed by legislators supporting the Ministry, withdrawing their support to the
Ministry. As a result, on 19.4.1989, the Governor sent a report to the President
stating therein there were dissensions and defections in the ruling party. However,
on the next day seven out of the nineteen legislators who had allegedly written the
said letters to the Governor sent letters to him complaining that their signatures
were obtained on the earlier letters by misrepresentation and affirmed their support
to the Ministry.

The Chief Minister and his Law Minister met the Governor the same day and
informed him about the decision to summon the Assembly Session. The Chief
Minister also offered to prove has majority on the floor of the House even by
preponing the Assembly Session, if needed. To the same effect, he sent a telex
message to the President. The Governor however sent yet another report to the
President on the same day i.e., 20-4-1989, and stated that the Chief Minister had
lost the confidence of the majority in the House and repeated his earlier request for
action under Article 356. On that very day, the President issued the Proclamation
in question with the recitals already referred to above. The Proclamation was,
thereafter approved by the Parliament as required by Article 356.

A writ petition was filed on 26th April 1989 challenging the validity of the
proclamation. A special bench of 3 judges of Karnataka High Court dismissed the
writ petition. It raised serious question of law relating to Proclamation of
Emergency and dissolution of Legislative assemblies according Article 356 of the
Constitution of India. Held:

In this case, it has been held that the issue of emergency action by the President is
justifiable in the court of Law, and that it is however, subject to judicial review. It
is the duty of the government to produce the basis for declaring emergency when
demanded by the people
It was also contended that The Hon’ble Supreme Court in this regard held that the
power conferred by Article 356 upon the President is a conditioned power. It is not
an absolute power. This satisfaction may be formed on the basis of the report of the
Governor or on the basis of other information received by him or both.

The Hon’ble Supreme also held that the power of the court to restore the
government to office in case it finds the proclamation to be unconstitutional, it is,
in Courts opinion, beyond question. Even in case the proclamation is approved by
the Parliament it would be open to the court to restore the State government to its
office in case it strikes down the proclamation as unconstitutional.

It has also been concluded by the court that State Government cannot follow
particular religion. Secularism is one of the basic features of the Constitution. It is
a positive concept of equal treatment of all religious. This attitude is described by
some as one of impartiality towards religion or as one of altruistic neutrality. While
freedom of religion is guaranteed to all persons in India, from the point of view of
the State, the religion, faith or belief of a person is immaterial. To the state, all are
equal and are entitled to be treated equally.

Other such cases discussing the concept of Federal structure of state include, L
Chandrakumar v Union of India, Rameshwar Prasad v. Union of India,
Keshavananda Bharaticase, B.P. Singhal v. Union of Indiaand Kuldip Nayar v.
Union of India.

Critical Appraisal:

This case has great implications on Centre-State Relations in the history of the
Indian Constitution. Supreme Court intrepidly manifested out the paradigm and
boundaries within which Article 356 has to function. The Supreme Court said that
Article 356 is an extreme power and is to be used as a last resort in cases where it
is apparent that there is a stalemate and the constitutional machinery in a State has
collapsed. The views expressed by the court in this case are similar to the concern
showed by the Sarkaria Commission.
The codes laid down in this case put a slab on the dismissal of the state
government by the centre for political gains. From the above analysis of all the
cases that have affected the Centre – State relations, it can be assumed that there is
a very clear demarcation between the powers of the centre and the states. However,
when the need arises the centre can take certain drastic measures to ensure the
functioning of the state machinery. It is contended that this is in conflict with the
nature of federalism, but in a country like India, this concept is ideal as the people
are diverse and the culture is diverse just like a federal state. But when the need
arises, we are all unified. Thus, Quasi – Federal type of constitution is Ideal in
India.