QUEST …FEDERAL OR UNITARY?

A Constitution is a document having special sanctity. It sets out the structure and the main
functions of the principal organs of the Government of a State. It also regulates the
relationship of principal organs of the Government of a State.

Political scientists classifies Constitutions into the two categories. They Are:
(1) Unitary
(2) Federal.

In a Unitary Constitution, the powers of the government are centralised in one Government
viz. the Central Government. The provinces will be subordinate to the centre.

In a Federal Constitution there will be division of powers between the Central and State
Governments. They will be independent in their own sphere.

A Federal Constitution has the following features:

(1) Distribution of Powers

A purely federal constitution will distribute the powers of the state among the central and
state governments. The basis of distribution of power is that in matters of national importance
the union will be entrusted with the authority and in matters of local concern the power will
be entrusted to the cates.

2. Supremacy of Constitution
A federal state comes into existence by virtue of the Constitution. Every (legislative,
executive and judicial) of the Union and States will be controlled by the Constitution. The
Constitution will be supreme law of the Land in a federal state. A supreme constitution is an
essential institution of a federal government.

3. Written or unwritten: Constitutions may be written like the U.S. Constitution or unwritten
and based on conventions like the British. Indian Constitution is written even though
conventions also play a part insofar as they are in keeping with the provisions of the
Constitution. It originally contained 395 articles and 8 schedules. It presently contains 395
articles (total number-444) divided into 22 parts and 12 schedules.

4. Rigid or flexible: Constitutions may be called rigid or flexible on the ground of the
amending Procedure being difficult or easy. Federal Constitutions are usually classified as
rigid because of their difficult amending processes. Indian Constitution may be said to be a
combination of rigid and flexible inasmuch as certain provisions of the Constitution can be
amended like ordinary legislation by simple majority in the houses of parliament, other
provisions can be amended by a special majority.

(5) Authority of the Court

There should be an independent and impartial judiciary to interpret the Constitution and
guard the entrenched provisions of the Constitution.
All the essential characteristics of a federal Constitution is present in the case of Indian
Constitution. The Indian Constitution establishes a dual polity, a Central Government and
several State Governments. There is a division of powers between the Union and the State
Governments. Each government is supreme in its own sphere. The Constitution is a written
one and is the supreme law of the land. The amendment of the Constitution is rigid. The
Constitution establish a Supreme Court to decide disputes between the Union and the States,
or the States inter se. The Supreme Court interpret finally the provisions of the Constitution.

Deviations from federal characteristics: unitary features of Indian Constitution

In the following matters, it is pointed out, the Indian Constitution modifies the strict
application of the federal principle:-

(1) Legislative relations - under the art. 249, parliament is empowered to make laws with
respect to every matter enumerated in the state list, if it is necessary in the national
interest. Similarly, legislation for giving effect to international agreements (article. 253).
in case of inconsistency between the laws made by parliament and laws made by
legislature of states, the laws made by parliament whether passed before or after the state
law in matters enumerated in concurrent list, to the extent of repugnancy prevail over the
state law. in case of an overlapping between the matters of three lists
i.e. union, state and concurrent list, predominance has been given to the union (article.
246). Previous sanction of the president is required for introduction of certain bills in the
state legislatures (viz. art. 304). (2)
(2) Administrative or executive relations - all planning is at the union level (via planning
Commission), the States only implement the plans formulated by the union. Further, there
is all India services. The executive power of every state has to be exercised as to ensure
compliance with the laws made by parliament. Article 365 authorizes the president to
hold that a situation has arisen in which government of a state cannot be carried on in
accordance with the provisions of Constitution, if the state fails to comply with or give
effect to any directions given in exercise of the executive power of the union.

(3) Financial relations - the states depend largely upon financial assistance from the union
(Through grants-in-aids). Power of taxation (which is exercisable by the states in
comparatively
Minor fields, the more important such as income-tax, wealth-tax, excise-duties other than
those
On certain specified articles and customs, being reserved to the union) conferred by various
Entries under list ii on the states is also severely restricted.

(4) Parliament's power to form new states and alter boundaries of existing states - the very
Existence of the state thus, under article. 3, depends upon the sweet will of union.

(5) Appointment of governors - the governors of states are appointed by president and
Answerable to him. They hold the office at the pleasure of the president. They thus act in
a manner suitable to the president even at the cost of the interest of the states of which
they are governors. There are provisions in Constitution under which the governor is
 required to send certain state laws for the assent of president and the president is not
bound to give his assent.

(6) Emergency provisions - under emergency, the normal distribution of powers between the
centre and states undergo a vital change (in the favour of the centre). Under article. 356,
the state legislature can be dissolved and president's rule can be imposed either on the
governor's report or otherwise when there is a failure of the Constitutional machinery in a
state.

(7) Single and uniform citizenship - for the whole country.

(8) Uniform and integrated judicial system - for the whole country.

(9) Inter-state council - if at any time it appears to the president that the public interests
would be served by the establishment of a council charged with the duty of- (a) inquiring
into and advising upon disputes which may have arisen between states; (b) investigating
and discussing subjects in which some or all of the states, or the union and one or more of
the states, have a common interest; or (c) making recommendations upon any such
subject and, in particular, recommendations for the better co-ordination of policy and
action with respect to that subject, it shall be lawful for the president to establish such a
council, and to define the nature of the duties to be performed by it and its organization
and procedure (article. 263).

(10) Freedom of trade and commerce — for the whole country. The comprehensive
provisions of part 13 seek to make India a single economic unit for purposes of trade and
commerce under the overall control of the union parliament and the union executive.
Thus, in certain circumstances, the Constitution empowers the centre to interfere in the
state Matters and thus places the states in a subordinate position or converts the union
into a unitary state, which violates the federal principle. The similar views were
expressed in State Of W.B. V.
Union of India case.

Example of federal Constitution

The American federation can be described as the outcome of the process of evolution, in that,
the separate states first formed into a confederation (1781) and then into a federation (1789).
Although the states may have their own Constitutions, the federal Constitution is the suprema
Lex and is made binding on the states. That is because under the American Constitution,
amendments to the Constitution are required to be ratified by three-fourths of the states.
Besides under that Constitution there is a single legislative list enumerating the powers of the
Union and, therefore, automatically the other subjects are left to the states. This is evident
from the tenth amendment. Of course, the responsibility to protect the states against invasion
is of the federal government. The states are, therefore, prohibited from entering into any
treaty, alliance, etc., with any foreign power.

Indian Constitution: federal or quasi-federal

The Indian federalism was designed on the basis of the working of the federalism in USA,
Canada and Australia. Yet it deviates from those federalism in many respects and establishes
its own distinctive features. There is a difference of opinion among scholars about the nature
of Indian Constitution — whether it is federal or not.

There is a dual polity i.e. central and state governments. There is a supreme Constitution. Our
Constitution is a written and controlled (rigid) Constitution. It can be amended only to the
extent of and in accordance with the provisions contained therein, the principal provision
being article 368. Further, the Constitution establishes an apex court in the form of the
Supreme Court to maintain the authority of the courts.
The Constitution does incorporate the concept of federalism in various provisions. the
provisions which establish the essence of federalism i.e. having states and a centre, with a
division of functions between them with sanction of the Constitution include, among others,
lists 2and 3 of the seventh schedule that give plenary powers to the state legislatures; the
authority to parliament to legislate in a field covered by the states under article 252, only with
the consent of two or more states; the competence of parliament to legislate in matters
pertaining to the state list, only for a limited period, under article 249, "in the national
interest", and, under article 258 (1) to entrust a state government (with the governor's
consent) functions in relation to which executive power of the union extends; decentralization
of power through 73rd and 74th amendments; etc. (Kuldip Nayar v. UOI ).

Criticism of Wheare's views

The term "quasi-federal" as suggested by Wheare is very vague as it does not denote how
powerful the centre is, how much deviation there is from the pure 'federal model', etc. it may
be that centre has been assigned a larger role than the states but that by itself does not detract
from the federal nature of Constitution, for it is not the essence of federalism to say that only
so much, and not more power, is to be given to the centre.

The federalism varies from place to place, and from time to time depending on factors like -
Historical, geographical, economic and political. Indian Constitution is sufficiently federal,
and it is no less federal than American federalism. the framers of Indian Constitution kept in
view the practical needs of country designed on federal structure not on the footing that it
should conform to some theoretical or standard pattern, but on the basis that it should be able
to sub serve the need of the vast and diverse country like India.

Jennings has characterised the Indian Constitution as a "federation with a strong

centralising tendency (Some Characteristics of the Indian Constitution). The Indian
constitution is mainly federal with unique safeguards for enforcing national unity and growth.

In State of West Bengal v. Union of India (AIR 1963 SC 1241), the Supreme Court has held
that the Constitution is not truly federal.

In Ganga Ram Moolchananl v. State of Rajasthan (2001) 6 SCC 89, the Supreme Court has
observed: "Indian Constitution is basically federal in form and is marked by the traditional
characteristics of a federal system, namely, supremacy of the Constitution, division of power
between the Union and States and existence of an independent judiciary".
Conclusions: Indian federalism is 'unique'

India adopted a federal structure as the different parts of the country were at different stages
of Development and it would have been difficult to control from one centre; and to ensure
Minorities their due place. However, the Indian federalism is unique because of its mode of
formation i.e. from union to States (creation of autonomous units and then combining them
into a federation), and not vice versa. it is to be noted that term 'union of states' (article. 1)
and not 'federation' is used in the Constitution. Also, the units have no right to secede (as in a
confederation). The Constitution of India is neither purely federal nor purely unitary, but is a
Combination of both. it is a union of composite states of a novel type. Neither the parliament
not the state legislation is 'sovereign' because each being limited by the Constitutional
provisions affecting the distribution of powers. The Constitution enshrines the principle that
in spite of federalism, the national interest ought to be paramount. Thus, the Indian
Constitution is mainly federal with unique safeguards for enforcing national unity and
growth. The scope of application of federal principle in India is shown by the scope of state
legislatures. However, Indian federation is not defective; the defect is political because there
is a conflict between opposition-party ruled states and the central government. Also,
federalism is not dead in India, as evidenced by the fact that new regions are demanding
statehood and union has yielded, thus states like Manipur, Tripura, Goa, etc. have been
created. Moreover, in spite of conflicts, the opposition-party ruled states do exist.