Magna Carta Prelims 2024

L10 : Federalism
 FEDERALISM ESSENTIALS

Quasi Federal

Written Constitution
Symmetric

Asymmetric Conceptual Intersections of Federalism Independent Judiciary

Cooperative
Judicial Review

Competitive
 FEDERAL FRAMEWORK

1. 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;
2. Distribution of competence or powers—legislative, executive,
judicial, and financial—between the general and the regional
governments;
3. Supremacy of the constitution—that is, the foregoing
arrangements are not only incorporated in the constitution
but they are also beyond the reach of either government to
the extent that neither of them can unilaterally change nor
breach them;
4. Dispute resolution mechanism for determining the
competence of the two governments for exercising any power
or for performing any function.
 UNITARY BIAS

1. The union parliament has been given the unilateral discretion to reconstruct the
boundaries of the states
2. The Union list contain more subjects than the State list.
3. In case of a deadlock between the Union and states over subjects in the concurrent
list, the Union law prevails.
4. The union parliament can also legislate on any state subjects under extraordinary
circumstances.
a. RS Authorisation
i. AIS
ii. Central law over a State Subject
b. No RS Authorisation required for making a law to interpret an international treaty
5. The union government also has sweeping economic superiority in terms of resources
as well as in its discretion in allocating resources to the states.
6. Union Government’s power of appointing governors in the states and dissolving state
governments by proclaiming president rule if the Centre deems fit.
7. Single Constitution for both Union and State governments.
8. Institutions of governance like single system of courts, all-India public services and
integrated audit machinery and the integrated election machinery.
 1. CENTRAL AND REGIONAL GOVERNMENTS

1. 28 States & 8 UTs : governed by the Constitution of India and have no separate constitutions of their own.
2. Special features of some of the States, the Constitution makes special provisions for them not applicable to other States [arts 371, 371-A–J]
(asymmetric federalism)
3. Union Territories are expected to be subject to the direct administration of the Union of India, the Constitution also makes special provisions for
some of them[eg, art 239-AA for Delhi and art 239-B for Puducherry.]
4. Special arrangements are also made separately for the Scheduled and Tribal Areas
a. While the provisions of the Fifth Schedule apply to the Scheduled Areas and Scheduled Tribes in any State, the provisions of the Sixth
Schedule apply to the areas in the States of Assam, Meghalaya, Tripura, and Mizoram.
5. According to Article 1(1) of the Constitution, ‘India, that is Bharat, shall be a Union of States.’
a. India must have more than one State.
b. Federalism is part of the basic structure of the Constitution and is therefore beyond the power of amendment (SR Bommai)
c. While federalism is a part of the basic structure, two features of the Constitution show the centralisation feature of Indian federalism
i. Parliament’s power to alter State boundaries
ii. Representation of the States in Parliament
d. A third level of governments at the village and municipal levels has also been introduced into the Constitution by way of the Seventy-third
and Seventy-fourth Amendments. This level was already envisaged in Art 40 of the Directive Principles of State Policy.
i. Within the jurisdiction of the States under Entry 5 of List II of Schedule VII to the Constitution
ii. While these Amendments had hoped to strengthen local government in India, strictly speaking, local government bodies remain within the
competence of the States for devolution of powers and functions
 2. DISTRIBUTION OF POWERS

1. Legislative Powers (Chapter 1 of Part XI, arts 119, 209.)

a. Article 245—prescribes the territorial jurisdiction of the Union Parliament and the State legislatures
i. The former can make laws for the whole of India or any part of it, while the latter can make laws for the territory of that State or any part
of it.
b. Article 246 of the Constitution lays down the law for the exercise of power over the subjects
i. The legislative items included within List I are much more numerous
ii. In case of conflict, items in List I override items in Lists II and III and items in List III override those in List II.
iii. Any residuary subject also has precedence over the powers of the State legislatures in Lists II and III
iv. For items in List III, if the State law conflicts with the law of Parliament the latter prevails over the former, though with the prior approval
of the President, State law may also prevail over the law of Parliament (Art 254)
v. No tax entry is included in List III
vi. Legislative powers assigned to the Union have primacy over the powers assigned to the States
vii. Parliament may override the foregoing distribution of legislative powers between the Union and the States.
1. During an emergency arising from war, external aggression, or armed rebellion Parliament may make laws on any item in List II
2. 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’;
viii. If the President of India is satisfied that the government of any State cannot be exercised in accordance with the provisions of the
Constitution, he may assume all the powers of the State and authorise Parliament to make laws for that State
ix. The working of the Constitution so far, however, establishes that the primary distribution of legislative powers is the norm and the
exceptions have been invoked only in limited cases.
 2. DISTRIBUTION OF POWERS

1. Executive Powers
a. With some exceptions, the executive power is divided between the Union and the States on the same lines as the legislative powers.
b. The executive power of the Union extends to all those matters on which Parliament has the power to make laws, as well as to matters on
which it may exercise such power by virtue of any treaty or agreement. However, the executive power of the Union does not extend to
matters included in List III unless otherwise provided in the Constitution or any law of Parliament (Art 73)
c. The executive power of the States extends to matters on which State legislatures have the power to make laws, subject to the condition that
on matters in List III it is subject to the Union’s power. (Art 162)
d. Exceptions
i. the exercise of State executive power must ensure compliance with the laws of Parliament and existing laws applicable in the concerned
State, and for this purpose the Union has the executive power to give such directions to any State as it considers necessary
ii. in the exercise of its executive power the Union may also give directions to any State for the construction and maintenance of means of
communication of national or military importance as well as for the protection of railways within the State etc.
iii. arts 257(1), 258(1), 258(2), 258A, 353(a), 356(1)(a), 360

1. Judicial Powers
a. The Constitution does not divide judicial power between the Union and the States, although in the textual arrangement of constitutional
provisions it places the Union and State judiciary separately.
b. It also authorises Parliament to establish additional courts for the better administration of Union laws and for the creation of an all-India
judicial service.
c. Except for the appointment of judges of the Supreme Court and the High Courts, which is made by the President of India, appointment of
administrative staff and the budget of the Supreme Court are within the jurisdiction of the Union and of the High Courts and subordinate
courts within the jurisdiction of the States. But the same courts administer the laws of the Union as well as of the States [arts 146, 229]
d. In the allocation of legislative powers to the Union and the States, the Supreme Court for all purposes and the High Courts with some
exceptions are placed within the exclusive power of the Union, while the administration of justice, constitution, and organisation of all courts
other than the Supreme Court and the High Courts are placed within the concurrent jurisdiction of both the Union and the States.
e. Therefore, the judiciary was envisaged and arranged as unitary rather than federal to exclude the possibility of local influence
 EMERGENCY EXPLAINED

C>S : Promulgated by President on written advice of the ‘Cabinet’

National (352) State (356) Financial (360)

War
Grounds Failure of constitutional
External Aggression Financial Stability
machinery in a state
Armed Rebellion

Parliament Conservative Fiscal Policy

Impact Parliament
No Impact Parliament
No Impact
Union Executive No Impact
Union Executive
No Impact Union Executive
No Impact
State Legislatures No Impact
State Legislatures
No Impact State Legislatures
Suspended/Dissolved
State Executive No Impact
State Executive
No Impact State Executive
Suspended
FRs No Impact
FRs
Any except 20 & 21 FRs
No Impact
19 Automatic No Impact

Duration 6 months at a time for any

3 years (1+6+6+6+6)
number of times - Spl Maj II Infinite - one time
1st time approval within 2
1st time approval within 1 Simple Maj.
months - Simple Maj.
month - Spl Maj. II