CHAPTER 25 HE FEDERAL SCHEME MAHENDRA PAL SINGH I. INTRODUCTION lasing a constitution is whether iis unitary or federal. Broadly speaking, ‘one way of om sitution the totality of the powers ofthe State is vested in one government, ina nla constitution itis divided between a government forthe whole country and wieinafee sovernments for its different regions. After initial differences on whether the ‘a number of er india is unitary or federal, it has finally been decided that it is federal and Constitte Mhis one of its basic features, which cannot be changed even by an amendment that federal jon.The initial differences and the final conclusion indicate that finer issues afte con the identification of a constitution, Evry constitution responds tothe back. areinvoerounding conditions, and future projection of the country of its making, The Fe of nia is no exception to this rule, This chapter studies the Constitutions fed Constheme. Ie fist provides an overview ofthe basic framework and distribution of powers ay the Centre and States. It then turns to three speci topics—the identity of States, petauve competence, and regional emergencies—to demonstrate the centralised character itfdian federalism. It concludes with some reflections on how we should understand and jgethis federal arrangement. II. THE FEDERAL FRAMEWORK The commonly accepted features of a federal constitution are: (i) existence of two levels of government: a general government for the whole country and two or more regional governments for different regions within that country; (ii) distribution of competence or Powers—lgislative, executive, judicial, and financial—between the general and the regional , Se 6 Slate of West Bengal v Union of india AIR 1963 SC 1241; State of Rajasthan v Union of India (977) SCC ga: State of Karnataka v Union of india (1977) 4 SCC 608, * Sklommaty Union of india (1994) 3 SCC x Kuldip Nayar v Union of India (2006) 7 SCC.: of the constitution—that is, the fore stitution but they are also beyong'® Srl OPA nt that veither of them can unilaterally chysn Pech, ‘mechanism for determining the competence of; % lation mec ar performing any function, We ma re (a) dispate te ny power fa ering 4 Trin of indi onthe bce pataladiesd 4 supe ee Oe ec 1. as rye, examen Pani ey Central and Regional Governments 1 government asthe Union of India latter having a name. Initially ther ‘te teny .d Part C States—accordi rte -—Part ane ling tc i gories in of the States in 1956 the et a Ca hig the reorganisation s rr yhe Union Territories. They are all named pi Of ‘ wi an in sa Mule [ofthe Consttation Their number chy : ime to time, Presently, there are twenty-nine a "th te 2tierritries. With the exception of the State of Jammu and Kaine a seren Union Teron» Constitution and ha its own Constitution, ther vi ‘ty the Constttion of India and have no separate consti, ia view of the special fa ne tures of some of the States, the C ir own. However, fe the Cont ae for them not appli tion Je to other States* Such an kes special provisions cal approach males Pei Perc federalism AS regard ie the Union each one of the is the Union Territories, though wi) Payee et to the diet administration of the Union of pare them on aso makes speci povsions to of them. Special arranges we Cansearriy fine Scheled an Tal While the provisions ofthe ig, doormat yt ie Scheduled Ara and Schedule “Tribes in any State, the provisos Se ede he aeas in he Snes of Ass Meghalaya, Tripura ant aaneratuaton in the numberof tates raises the question of whether the States canbe nn pin ceabsenc ofthe it feature ofa fderal const fom ough no possibilty ofthat kind as ever been entertained vo bea theoretical possibilty. According to Article 10) atthe Constitution, India, thatis Bharat, shall be a Union ‘of States’ So long as this Article ot cos st ave nore than one Sate. The question of whether Arie) may be deleted or amended to read ‘India, that is Bharat, shall be a Union’ or “unitary State’ stands answered by the basic structure doctrine. Well before Kesavananda Bharati v State of Kerala,* which. Jaid down the basic structure limit on amendments, Conrad cited Article (a) to argue that the basic structure of the Constitution was unamendable and the Court put outofexisten the Constitution of in practice, it doesnot even seem > Constiuiafindniso.artse. + Consttation of indi S Constitution of India 1950, ats 371 37° A-I : nh Ri ion Ox Unity Pro) * Constitution of India 1950, Part VII arts 259-42. For special provisions, see eg, art 2 9 Delhi and art 239-8 fr Puducherry ee ee rec , see eg, at 239A for 7 Constitution of India 1950, Part X, arts 244, .44-A and Fifth and Sixth Schedules. © 0573) 450C 235sto arrive at its conclusion. Subce, Fr part ofthe basic structure of the Constituy .dment:!° While federalism is a part of th mand Parliament’ power to alter State bounds ce e of Indian federal tto8 of ‘examined. in federalism. This wil be ith beer el of governments atthe village and municipal ee ls ff Fike Constitution by way of the Seventy-third and Seventy. ee un eee introduced ready envisaged in one ofthe Directive Principle icpnntments, This se icon of the States under Entry 5 of List tof Sched rice am waitin “s urfpese Amendments had hoped to strengthen local government corn iton ig, lcal government bodies remain within the competence ofthe Seq SY 'sand functions." For this reason they have not yet been ah 2° third ter of government and are therefore, not of much interesr noe eee a view of the federal scheme.”® rom the point of e Distribution of Powers ofthe powers ofthe State divided into legislative, i governments NO universal rule or general principe for sharing thesepowersexiss ned par to separate matters of Common Concer fom those involving local needs Quite ates of loca interest become matters of general interest or ofits o moe han ne region ands therefore, ‘such matters may be placed in a third category over which both ope ptal and the regional governments may exercise powers asthe occasion demans r recommended general rule is that while the Union government should have ent ed powers the rest may be lft tothe regional governments. Bu ts easier said then iced, for some powers need to be within the jurisdiction of both. Moreover, overtime, rmrs aay emerge which are incapable of being handled by the regional government Ih that case they must be handled by the Union government. In view of such reasons no tar and-fast rule of universal application canbe prescribed forthe distribution of powers apyen the central and the regional governments. In this sub-section, weil fcason how thetndian Constitution distributes powers between the Union and the tates, a, Legislative Powers se distribution of legislative powers is primarily given in Chapter 1 of Part XI of the tution, Exceptionally, it may also be found in other provisions" The fist provision of Dieter Conrad, ‘Limitation of Amendment Procedures and the Constituent Power (1970) 15-16 'earbook of International Affairs 375 SR Boma (n 2} Kuldip Nayar(n 2). Constitution of India 950, art 40. {Constitution of India 1950, Eleventh and Twelfth Schedles. Forthesame view, see Khosla (n 5) 72. See eg arts 119,209, See also Mahendra P Singh, ‘Legislative Power 76) 4&5 Delhi Law Review73. India: Some Clarifications)is Part—Article 245—prescribes the territorial juris, aa au legislatures the former can make laws fore ne efthe Un, the latter can make laws for the leITitOry ofthat State or an Of lig ston Palament cannot be invalidated on grounds of their extraterae ofits Pansy cannot make extraterritorial laws. Slate laws may ah talon, 4 nexus may be established between the subject mance or ater ‘Thelegiative subject ate quite exhaustively enumerateq three List I1—State List; and List Ml—Concurrent List. No tax entry it List IL. They consist of ninety-seven, sixty-six, an forty-seven inept ten total existing numberof items varies in each list because spelt meet the Constitution lays down the law for the exercise of Power over gets. Ay tith ot Pariament haste excusive power to make laws on any suber inca ibe ing the powers ofthe State legislatures to make law on any subject induae, in ig eg that is ia subject can possibly be readin List Las well yt ded Lis an bey itis deemed to be included only in List Land not in any of the other — is they ie le subjects included in List I, Parliament has the power to mak Taw on tho Secon iy Ubject on, ‘gard its inclusion in ist I. Thirdly the Sate legislatures ha the pt bec wt on any subject included in List I, subject to the condition that tnee Subject or Make is not included in List I or List IIL Thus the legislative powers assigned to ia = primacy over the powers asigned to the States Finally, Paiament the to make law on any subject for any territory not included in the territory of legislative subjects including taxes not listed in any of the three Uists—that is, pe "8 Te subjects—have been assigned exclusively to Parliament, Tesi In the foregoing arrangement, Parliament clearly emerges in a dominatin, agaist the tate legislatures, The legislative items included within rin a numerous niney-seven compared to sixty-six in List I. They ar also muct more ing ant than the ones in the other two lists. In case of conflict, items in List override i in Liss and Mand items in List I override those in List Ul. Thus Lisp become? least important, Finally, any resduary subject also has precedence over ste Power of State legislatures in Lists II and IIL For items in List II, if the State Jaw contlics wig the law of Parament the later preva over the former though with the pri approval the President, State law may also prevail over the law of Parliament." Parliament’ poser Place in comparison with the States will be explored further in a later section. For now, 's important to note that in certain cases Parliament may override the foregoing distiby. tion of legislative powers between the Union and the States. For example, during an emer Bency arising from war external aggression, or armed rebelion Parliament may sake, an on any item in List Il Parliament may make law on any subject ‘for implementing any treaty agreement or convention with any country or countries or any decision ‘made at any international conference, association or other body’: if the President of India is satisfied ' Poston s StaleofBombay RMD Chamarbaugwata AIR 957 SC 699, ' Constitution of tndia 950, Entry 97 of List Constitution of India 1950, ar¢254 * Constitution of India 950, att so, * Constitution of India 1950, art 253 ly,455 __THE FEDERAL scheme srernment of any State ANHOL be exercise a he may asume all the poner me the Comsat State and sO forth" I view fy ea er wheter the distribution of legisatie yates ey cstibution of legislative powers isthe no iar in accordance wi the State and aut ese exceptions, ith the prov sions of thorisePatament to loubts are som ometin en the sion and he ‘owever, establishes that re primary ases. ee ee a the exceptions have been i : pxecutive Powers ecutive power ofthe Union and Sates vests respectivlyn the resident of India eellyor through oficers sak il nugh officers su While the Presidents lected yon enor of every State and is exercised by them either dn the ae to them in accordance with the Constitution, en silege comprising elected members of Parl sie lament and ele oe tome Assembles, the Governor ofa State is appointed y he Pemba of Ste office is five years, he hols his office during the pleasure attend neue eof the Presiden. bh exceptions, the executive power is divided betwee extends to all those matters on which Parliament has the power to ates ile ‘patters OM which it may exercise such power by virtue: ‘of any treaty or ag eee mmateutve power ofthe Union does not extend to mates lnchded in Ut I ies th one provided in the Constitution or any law of Faint Conesndiity te atrerve power ofthe State extends to mates on which State coronene = to make laws, subject to the condition that on matters in List II] it is subj ey mt See ject to the Union's ‘Some ofthe exceptions that the Constitution makes to this distribution of ‘parliament and existing laws applicable in the concerned State, and fr this pu = a Union has the executive power to give such directions to any State a it cman eae fanyin the exercise ofits executive power the Union may also give directions to any State forthe construction and maintenance of means of communication of national or mili ‘as well as for the protection of railways within the State;* and so forth.” ef importance c. Judicial Power Unlike the legislative and executive powers, the Constitution does not divide judicial power between the Union and the States, although in the textual arrangement of consti- Fational provisions it places the Union and State judiciary separately. The former includes the Supreme Court, while the later includes the High Courts andthe subordinate courts" 2» Constitution of India 1950, at 356. 25 Constitution of India 1950, arts 200, 201, 249,252, 288(2), 304 2% Constitution of India 1950, arts53, 154. Constitution of India 950, art 54,155,158. >» Constitution of India 1950, art73._*” Constitution of india 1950, ar 16, 2 Constitution of India 1950, art 256. __° Constitution of India 950, ats 2572), 2571) + Constitution of India 1950, arts 257()258(1, 2582) 258A, 353() 356()(a), 360 See als Jayantilal “Amratll Shodan v EN Rana AIR 1964 SC 648; Samsher Sing v State of Punjab (1974) 28083 * Constitution of India 1950, Chapter 1V of Part V, Chapter V of Part VI1s establish additional co rt pease ert of onal India judicial service ttt the High Courts, whieh PL fn ; +» whic Cept foe it ich i mob "the ly, ministrative staff and thi \e budget of the oY thes! Supra pein me ses Parliament t0 Italso authoris Union laws and for the creation ofthe Supreme Court ment of jude of India, apPO! within the juris the jurisdiction as of the States” jintment of adt ion ofthe Union and ofthe High Court sand sub ordinate ta uates But the same courts adminis ome allocation of legislative powers « er the laws of, fo all purposes and the High Courts sits Union a. een the Union,™ while the admi Some except an fal courts tierthan the Supreme instatin it tet uisdction ofboth the Union sour and the High igh, rena even courts 8 well as bathe Stats 94 Cou, ‘ed within the jurisdiction of the St rt fee inate ieee : Se inal ee aa ofthe Consittion ankar et ply aie swell prom Jocal influence i en ce. These Pe for ce, itary rather than fede al t0 exclude the sli Possibii “bility Cou ta Union hy tat Stags ic tate, “ll tion, and’ ons ar placed within iUsticg Sly ‘he courts and procedure it the Supreme Court are placi judiciary the paramount consid from the other two Wings ofthe ciany was envisaged and arranged as U1 oflocal influence-” . Financial Powers and collection of any tax is a legislative fui inci (On. hich i Although the imposition aed to Priament and Sate egisatures in 4 g rticle 246 read ae Land Uy finance i covered separately in Part XI of the tad the relevant in ne eer, compra at wea a, estate ieee rae ; jor sively to Parliament while taxes =a oi arene ae land reven He, residuary tax are assigned excl rtincane esate ton agricultural land, excise duty on alco t Icoholic and into Intoxicat erg taxon ety of goods, lst pasenge — 7 r, goods, and vehi a on ties te revenue om Sate taxes is a sae {a are assigned Sess icabaves) Sean Part XII makes provision for thi AlRg54 S07void by implication if [conflic So render it ted also toc” that may be enacted by Parliameng’s } with a later“ Comparin, yy Act and the 1950 amendment, the Court found tain’ the Subject matter . One rape Bombay Oe the later central Act. In T Baraiv Hex ope Ed Adulteration Act 1934 had been amet by the West pennaee the 10 enhance the maximum punishment from ox we 8 ee f arliamentary amendment reduced the mann? life imprison. vegstoure equent P maximum pun At coca Zutano get tree Yeetal of the West Bengal amendment, by ind not only allowed mut also gave the accused i fe sed retrospectin te ofthe reduced punishment, Pective pene Y Ah Hoe? an of mon of FO tio" ional Emergencies 5. Regio 1e example which resists the di semight think that one example whi «scription of Indian federalism as heav wend isthe Supreme Court’ decision in SR Borimai® Heres ning, judge bench of liyee tart heard a number of cases together relating to the imposition of Presidents Rule? ot resident's Rule ger Article 356. Although the Court could not grant any ret tod Petitioners, since jonshadsleeady taken place In mos ofthe ated Sates itwas ake neon ne unt udlines forthe exercise of power under Artie 36 Sit diferent nino jen bythe Court and some of them hae particular relevance fora deus oe .dian Constitution, ee Bommai is often cited as precedent for th arofthe basic structure of the Constitution, Jagof the opinions shows that federalism was peripheral to the final outcome of the case. insen,te ide of democracy and the principle of separation of powers nore coe cea to the judges reasoning onthe judicial review ofthe Proclamation vader ao, $36 Feof the sx opinions delivered discussed federalism (Vermaand Daya he isthe exception) and three opinions (Ahmadi, Ramaswamy, and Reddy and Avrora yy ba that federalism was prt ofthe basi structure ofthe Constitution Bat stance, nose ofthe opinions traced the power of judicial review to the federal naawe nt Constitution. Instead, the opinions cited concerns about democracy and peseriog hs separation of powers. Sawant and Singh JJ’ opinion (with which Pandian note thatthe ‘federal principle is dominant in our Const Isreal not necessary to determine whether...our Constitution is federal, questa or unitary in nature”* The real question was ‘whether the powers under Article eG) cy be exercised by the President arbitrarily and unmindful ofits consequences othe yoroom aoe inthe tate concerned Noting that ‘Decentralsaton of power. isan eset po of democracy and ‘in democracy, people are sovereign and all power belongs primey tothe people, Sawant J held that interference through Article 356 had to ‘both be rare ana demonstrably compelling’ Further, frequent elections because ofthe overuse of Article Proposition that federalism is a and some opinions did say so, a close read ion J concurred) cited HM Seervai to tution, but soon after asserted that * Zaverbhai Amaidas(n 90) {7}. % (1983) 18CC177. 53 SR Bommai(n2). * SRBommai(n2) [100]. SRBommai(n2)|100]. SR Bommai(n2) {02}_ democratic principle’ by making a risked egati est tions tn ofthe oe scussed federalism briefly but only to find that tng Moh, Hao jal review of ‘Article 356 to the constitutional duty of he re Se, He raced judi rely be an onlooker and a helples spectator tg Supe i and responsibility to defend the demec "°° of ion, the Court’ duty was 0 ‘eter 2 ag Png each branch of the Government an, ee What Pen ‘e hhlimitations.°® The opinion of Reddy and ther the - ralism, and when it came to judicial revi) Wain ®t js a conditional power. In exercise of the - PY a whether the condition has been oe crt dealing wth fede fer Article 356(1) ,dto examine JV. CONCLUSION ral scheme hasbeen a matter of debate sinceitsfoundy sear e scheme as quasi-ederal™* and others lke Cte KC Whe raised the question of whether Indian should in fact be called a federation eae eid ral, gel fosed on autonomous unis coming tebe, bca, ck dated, however after World War II. There emerged a far more diverse ‘understan, rent . regional unts might be granted a dees af autonomy. The Indian federal model mers ree and hasbeen sustained ban understanding that only a strong Union can keeps sountry together and is necessary inthe conditions in which the Constitution i opentian ‘Tore has als been a belief thatthe way in which regional autonomy is provided ings the Indian scheme affords a certain flexibility and is able to thereby avoid the rigidnes 4, which federal models re often vulnerable, rea imetotme, but particulary since the end of one-party rule in the country ing, dean for re-examining the eer arrangements have been made. Generally the Sas aay regional pareshve demanded grater autonomy and. lager har inevemisg ve they en pursue ther polices uninfenced by the Centre and without depending on fetands in reponse to persistent demands from the States, the Union appointed acom- vvheaded by Justice RS Sarkaria to examine and review the working ofthe existing trrangements between the Union and States in regard fo power, functions and respons bilities inal spheres and to ‘tecommend such changes or other measures as may’ be appro prt Inthe performance of its job and making recommendations, the Commission ‘The Constitution’ famously characters missio 9 $RBommai(n2) {voi}. SRBommai(n2) [169]. __-%” SR Bommai (n 2) [227]. © $R Bommai (n 2) (257). 2" SR Bommai (n 2) [330]. "= KC Weare Federal Government (and edn, Oxford Universit Press 951) 3, "9 CH Alerandrowicr, "Is India a Federation” (1954) 3 International and Comparative Law Quarter 393, ">" Notable inthis ear isthe State of Tamil Nadu Report of the Centre~State Relations Engi Committee (The Rajmannar Commitee Repo! "6 Minstry of Home Afais Notation No ay June 983.SUB FHOERAL tchaagy 165 ocial and economic ep ‘in view the soc Nu developments tha asked © eS Ettatave dive regard to the scheme ang ranework o i os oO ea ding Fathers have so sedulousy dene 10 Potect the independ iy and itepity ofthe Country which sof paar the un ofthe people Ae prolonged teen orth Baths) sites tnd Veded Cees {nd alcholes, the Com con Fae ecoasttlonal arangsments witatie hile emphasising grencr a the ex in decision making, Iwo of the major Fecommendations in ofthe states ‘on the appointment and role of the Gover, saps es. ‘To facilitate smoother functional rela in the 6 OF and the application of Article tions between the scministrsve sspecs ot ae Union-State relationship, fad ee ty suggested adjustments inthe administatne Niet relations levels ofthe government andthe working poste ey Report led to several develo ae to better coordinate Union-State relations a thied tego, go ee ighighed the abuse of regional emergency introduced i Court in SR Bommai; and so forth. Yet, in subst powers outlined inthe Constitution tnaoopaseconl an Bai ge asce MM Punch to recomsder ty federal scheme poe a ment since the Sarkaria Commission Report, economic develop recommendations, on topes ranging from law jn 2010, i any radical reformulation ofthe federal sche PO iii okra funework conten tea there ares Be once functioning of the federal scheme, Ie andthe centelacd asane embodies, terms in werniment was Powers and was relied upon by tance, itaffirmed the framework mission was con in light of politcal Its report, submitted and order to corrup- me." These efforts at several important steps to there is acceptance ofthe broad Ses Comat, ip of the Sy To Gi-Searhatp nstrative Reforms Co rsatecounl ic invest_ 1968). lahon ‘hip /iatetateco ‘Commission on Centre-State ‘the