Federalism

Is India a Federal State?

 Features of federalism as applicable to Indian Polity

1. Written constitution
 Indian constitution is the lengthiest formulated enacted
document.
 It is a detailed constitution consisting of the relationship between
union and states, powers of the organs of the government, the
rights granted to the subjects, nature of Indian polity, rules of
parliamentary governance etc.
 When the constitution was originally enacted it consisted of 395
articles and 8 schedules.
 However, the Constitution was not a result of compact between
independent states like in true federations. As mentioned by
Ambedkar
2. Supremacy of the Constitution:
 Supremacy of the constitution envisages that the authorities
created by the constitution should be controlled by it and powers
conferred there under should be exercised without affecting the
contours of the constitution.
 The legislature, executive and judiciary can not arrogate for
themselves the power to abrogate the constitution.
 However, there have been several attempts on the part of the
legislature to amend the constitution even to the extent
repealing. For instance, the Constitution (42nd amendment) Act,
1976 inserted Art. 368 (4) which provides that there shall be no
limitations whatever on the constituent power of the parliament
to amend by way of addition, variation or repeal the provisions of
this Constitution. However, it is the judiciary in Minerva Mills
case, that has brought the balance by reiterating
KeshavanandaBharathi’s dictum of basic structure theory
3. Rigidity of the Constitution:
 A logical sequence to the supremacy of the constitution is rigidity
of the constitution.
 Where both the Union and States are stake holders in the
functioning of the constitution which includes distribution of
powers between them, the constitution can not be amended
without involvement of both.
 In order to maintain equilibrium between the centre and states
the amendability of the constitution should neither be entirely in
the hands of center nor of the states.
 According to Vth Amendment to the American Constitution, the
amendment may be proposed in either of two ways. I. by 2/3rds
vote in both the houses of Congress. 2. By a convention called
together on the application of the legislature of 2/3rds states.
Afterwards it has to be ratified by legislature of three fourths of
the states or by convention in three fourths of the states.
Congress is competent authority to decide the method of
ratification.
 the Indian constitution envisages three types of amendments
Theoretically, one can not say that the Indian constitution is
wholly rigid. There are traces of both rigidity and flexibility. It
can not stand in comparison with the USA or Australia with
regard to rigidity. Even in practice the Indian constitution is
subject recurrent amendments giving an impression that it is far
from rigidity.
4. Distribution of powers:
A vital feature of a federation is the establishment of dual polity
and distribution of powers between the Union an states.
Indian Constitution establishes union govt and regional
governments in the states. Part V and Chapter I deals with Union
executive, Chapter II deals with Union legislature. Part VI ,
chapter II deals with executive in the states and Chapter III deals
with legislature in the states.
• The distribution of powers between union and states is on the
lines of Canadian constitution which was the basis for the
Government of India Act, 1935. Indian constitution gives an
elaborate scheme of distribution of powers.
• Art. 246(1) read with List I, Union list of Seventh Schedule gives
exclusive power to parliament to make laws on the entries
made there in. The states shall not encroach into this field. This
List has 97 entries which are of national importance and require
uniform laws through out the country.
• Art. 246(3) read with List II of seventh Schedule confers
exclusive powers on the state to legislate on the entries
mentioned there under. (66 entries) The Union is barred from
legislating on these matters except, of course, as permitted
under certain provisions of the constitution. The subjects
mentioned under the State List are of provincial and local
importance
 Art. 246(2) read with List III of seventh schedule deals with
concurrent list which includes 52 entries. Both union and states
can legislate upon the matters mentioned under this list. Subjects
of common interest for both the centre and the states are included
in this list.
 It is to be noticed that by virtue of Art.254, in case of conflict
between state law and central law on the same subject under
concurrent list the union law will prevail over the state law unless it
is reserved for the assent of the president and received his assent.
 A bare perusal of the above distribution shows that qualitatively
and quantitatively the union has expansive jurisdiction defying
federal equilibrium or principle. Certain entries under union list are
capable of being expanded at the will of the center. Besides one
can find entries under union list can also be found in the
concurrent or state list thereby, giving an edge to the union.
The residuary powers are vested with the centre
Deviant factors from the federal principle :

1. Under Art. 249 if the Council of States declares in the national

interest with not less than 2/3rds majority of the present and
voting that the parliament can make law on any of the subjects
under state list, the parliament is empowered to do so.
2. When the proclamation of emergency is in operation, the
parliament can legislate on any matter of the state list ( Art.
250). In fact, as Baba Saheb Ambedkar rightly observed, the
system works on a unitary plane.
3. If two or more states request the parliament to make laws for
those states, the parliament can legislate with reference to
those states even though the matter is in the state list. (Art.252)
4. The parliament has power to make laws with regard to whole or
part of India for implementing any international treaty, agreement
or covenant ( Art.253)

5. As noted, in case of conflict between state and union law under

concurrent list, the union law will prevail over state law unless it is
reserved for the assent of the president and received his assent
(Art.254)

6. Residue powers are vested with the union by virtue of Art. 248

7. With regard to establishment of new states, admission of states,

alteration of boundaries and change of name, the power of the
parliament, by simple majority, in fact strikes against federal
principle.( Art.2,3,4)
8. In case of break down of constitutional machinery in
the states the parliament is empowered to make laws
(Art. 356)
9. Where any State has failed to comply with, or to
give effect to, any directions given in the exercise of the
executive power of the Union under any of the provisions
of this Constitution, it shall be lawful for the President to
hold that a situation has arisen in which the Government
of the State cannot be carried on in accordance with the
provisions of this Constitution. (Art.365)
10. It is also to be noted that in the matters of Finance and
administration the system will run at the behest of the
Union.
11. If the President is satisfied that there is a threat to the
financial stability or credit of India, he can give necessary
directions and orders to the states for reduction of salaries
allowances of public servants and all the money bills of the state
legislature are also under the control of the centre during
financial emergency. (Art.360)
12. The union government is empowered to issue administrative
directions to the states which they have to follow and comply on
certain matters mentioned. ( Art. Art.256, 257, 365 )
13. The Governors of the state are appointed by the President
and hold their office during their pleasure. (Art. 200, 201, 288,
304)
Even the prime administrator at district level, collector, is selected by
UPSC leave alone the Governors of the state.
There is all pervading interference and domination of the centre over
the states.

Though deviances from strict federal principles can be

seen even in the constitutions of USA and Australia, the
degree of variations with reference to Indian system are
more.
Independent impartial judicial system:
 Unlike a true federal polity, India has single hierarchy of courts
starting from muffisil courts to the Supreme Court.
 The Supreme Court, the apex court of the country, is
established under the constitution ( Art. 124).
 Under Art. 131 the Supreme Court has jurisdiction to decide the
cases between the Union and the states or between union,
some states on one hand and the other states on the other.
 The power to interpret the constitution is vested with the
Supreme Court. (Art. 132). Under Art. 141 the decisions of the
Supreme Court are binding on all other courts in India.
 Independence of the judiciary is fairly maintained
under various provision of the constitution.
 Security of tenure is maintained and the judges cannot be
removed except for proven misbehavior by the President after
following the special impeachment procedure.
 The salary of the judges is fixed and not subject to vote in the
legislature
 Jurisdiction of the court cannot be curtailed
 Legislature cannot discuss the conduct of the judge in discharge
of his duties
 The Supreme court has power to punish any person for its
contempt.
 There is a directive to separate judiciary from the executive
 There is a prohibition on practice by the judge after retirement.
 However, it may be noted that the appointments of the
judges are made by the executive (the President).
 ( Interference by the judges in the appointment of
judges)
 India has witnessed supersession of judges for
appointing Chief Justice deviating from established
tradition of seniority.
 Similarly, conferring post retirement nominations/
appointment of the judges erodes into the principle of
independence. Law Commission in its XIV report
deprecated such practice.
The expression judicial review is not expressly
mentioned in the constitution, various provisions like Art.
13, 246, 124to 147, 368 facilitate judicial review. In Indira
Nehru Gandhi’s case judicial review is identified as the
basic structure of the constitution.
Other Features:
 There is single constitution and there are no state constitutions
separately from that of the centre unlike in USA.
 There is no dual citizenship unlike in USA where the citizens have
citizenship separately for federation and states. There is single
citizenship.
 Single judiciary and maintains legalism devoid of rigidities.
 There is uniformity of several laws.
 Administered by common All India Civil Services
 Judicial perspective about the nature of Indian Polity:

State of West Bengal v. Union of India AIR 1963 S.C. 1241

While exercising its power under Entry 42 of the Concurrent List of
the Seventh Schedule ( read with 246 (2) the Parliament had passed
Coal Bearing Areas (Acquisition and Development) Act, 1957 which
authorizes the union government to acquire any coal bearing area or
any right in or over such land in any part of India.
By a notification the union government sought to acquire coal
bearing areas in the state of West Bengal.
These coal bearing lands in the state were already acquired and
became the property of the state under West Bengal Land
Acquisition Act, 1954.
The state of West Bengal objected to the act of the Union on the
ground that the states are co-equal sovereigns in India and the
Parliament cannot entrench in to its sovereignty by acquiring the
lands vested in the State.
It was argued that the constitution being federal in nature the
states share sovereignty with the Union.
Therefore, the power under entry 42 of List III must be
read subject to this limitation.

The Supreme Court negatived this argument and observed

that—

India was not true to any traditional pattern of

federation. The provinces were not autonomous or
sovereign units.
• The supreme court further observed that legal
sovereignty in India is vested with the people.
• The political sovereignty is distributed between union
and states with greater weightage in favour of the
union.
• The court observed that the only federal feature which is
found in full force is the supreme authority of courts to
interpret the constitution and to invalidate those
measures which violate the constitution.
• The court traced the history and several dominant
features of the union over the states.
• The court observed that the doctrine of immunities and
instrumentalities as applicable in US is an exploded
doctrine.
In State of Rajasthan v. Union of India AIR 1977 S.C. 1361
the Supreme Court was discussing about the cause of action
against the then Home Minister’s letter to the Chief Ministers of
Congress ruled states asking them to dissolve their
assemblies.
In that context the Court observed that—
the Indian Constitution is like an amphibian which can
work both on unitary and federal planes.
The court held, in a sense therefore, the Indian Union is
federal. But the extent of federalism is largely watered
down by the needs of the progress and development of
the country which has to be nationally integrated,
politically and economically co-ordinated and socially,
intellectually and spiritually uplifted. In such a system, the
states cannot stand in the way of legitimate and
comprehensively planned development of the country in the
manner directed by the Central Government.
If then our constitution creates a Central
Government which is ‘amphibian’, in the sense
that it can move either on the federal or unitary
plane, according to the needs of the situation and
circumstances of a case, the question which we are driven
back to consider is whether an assessment of the
‘situation’ in which the union government should
move either on the federal or unitary plane are
matters for the Union Government itself or for
this court to consider and determine. Each organ of
the republic is expected to know the limits of its own powers.
The judiciary comes in generally only when any question
of ultravires action is involved, because questions relating
to vires appertain to its domain.
 • State of Karnataka v. Union of India AIR 1978 SC 68
• A memorandum alleging corruption, favouritism and nepotism against the
Chief Minister of the State of Karnataka was submitted to the Union Home
Minister by certain opposition members of the State Assembly.
• The Chief Minister repelled the allegations as frivolous and politically
motivated.
• By a notification dated May 18, 1977 the State Government appointed under s.
3(1) of the Commissions of Inquiry Act, 1952, a one man commission presided
over by a retired judge of the Karnataka High Court for inquiring into the
allegations specified in the notification.
• By notification dated May 23, 1977, the Government of India appointed under
s. 3(1) of the Commissions of Inquiry Act, 1952, a one man commission
presided over by a retired judge of the Supreme Court to enquire into the
charges made against the Chief Minister excluding "any matter covered by the
notification of the Government of Karnataka".

• Thereupon, the State Government filed in this Court a suit under Art. 131 of
the Constitution.
• On the pleadings of the parties, three issues
were framed by this Court.
• (1) Is the suit maintainable?
• (2) Is the impugned notification ultra vires the
powers of the Central Government under s. 3
of the Commissions of Inquiry Act, 1952?
• (3) Even if the notification falls within sec. 3 of
the Commissions of Inquiry Act is the section
itself unconstitutional?
 Contention on behalf of Plaintiff
(1) the Central Government has no jurisdiction or authority to
constitute the Commission of Inquiry in the purported exercise
of its powers under the Act;
(2) the action of the Central Government in appointing the
Commission against the Ministers of the State Government is
destructive of the federal structure of the Constitution and the
scheme of distribution of powers between the Centre and the
States;
(3) under the Cabinet system of government the Council of
Ministers is responsible to the Legislature for all its actions and
the inquiry ordered by the Central Government against the State
Ministers, while they are in office would subvert the principle of
collective responsibility of Ministers to the Legislature;
(4) by virtue of Art 194(3) it is the privilege of the Assembly (and not of 2
any other body) to appoint a Committee for inquiring into the conduct of
any of its members;
(5) interpretation of S. 3 of the 1952 Act in such a way as to empower the
Central Government to appoint a Commission for inquiring into matters
relating to any of the entries in List II of the Seventh Schedule to the
Constitution-would make S. 3 itself ultra vires the provisions of Part XI of
the Constitution; and
(6) since on the basis of the report the Central Government cannot take any
action against the Ministers of the State Government such a Commission
cannot serve any useful purpose.
• On the other hand, the Defendant (Central
Government) raised preliminary objections
(1) as to the maintainability of the suit on the ground
that the appointment of such a Commission does
not affect any legal right of the State; and
(2) also that the Central Government is competent to
constitute a Commission to inquire into a definite
matter of public importance,
(3) that, furthermore, its notification does not cover
any of the matters mentioned in the State
Government's notification, namely, the conduct of
Ministers of the State Government.
The Supreme Court quoted the above two cases (State of West
Bengal and State of Rajasthan) and held that by appointing a
Commission of Inquiry over the then Chief Minister does not
violate the federal principle
Appointed a commission under the Commission of Inquiry
Act (60 of 1952) S. 3(1) – to look into the charges of
corruption etc against the Chief Minister and other Ministers
of Karnataka State – held, not violative of the Constitution
and not ultravires the powers granted to the Central
Government
- Federal structure is not jeopardised
S.R. Bommai & ors. v. Union of India & ors.

• S.R. Bommai, the CM of Karnataka (Janta Dal)

• Govt. was dismissed on 21.04.1989 and President’s Rule
was imposed under Art. 356 (then a mostly common mode
to keep Opposition parties at bay.)
• The dismissal was on grounds that the Bommai
government had lost majority following large-scale
defections engineered by several party leaders of the day.
• Then Governor P. Venkatasubbaiah refused to give
Bommai an opportunity to test his majority in the
Assembly despite the latter presenting him with a copy of
the resolution passed by the Janata Dal Legislature Party.
• Bommai went to court against the Governor’s
decision to recommend President’s Rule.
• First he moved the Karnataka High Court,
which dismissed his writ petition.
• Then he moved the Supreme Court.
• On March 11, 1994, a nine-judge Constitution
Bench of the Supreme Court issued
the historic order, which in a way put an end
to the arbitrary dismissal of State
governments under Article 356 by spelling out
restrictions.
– The case, went on to become one of the most
cited whenever hung Assemblies were returned,
and parties scrambled to for a government, took
almost five years to see a logical conclusion.
• The verdict concluded that the power of the President
to dismiss a State government is not absolute.
• The verdict said the President should exercise the
power only after his proclamation (imposing his/her
rule) is approved by both Houses of Parliament.
• Till then, the Court said, the President can only
suspend the Legislative Assembly by suspending the
provisions of Constitution relating to the Legislative
Assembly.
• "The dissolution of Legislative Assembly is not a matter
of course. It should be resorted to only where it is
found necessary for achieving the purposes of the
Proclamation," the Court said.
• "In case both Houses of Parliament disapprove or
do not approve the Proclamation, the Proclamation
lapses at the end of the two-month period. In such
a case, the government which was dismissed
revives. The Legislative Assembly, which may have
been kept in suspended animation gets
reactivated," the Court said.
• Also the Court made it amply clear that a
Presidential Proclamation under Article 356 is
subject to judicial review.
 significance of the S.R. Bommai v. Union of
India case
• The case put an end to the arbitrary dismissal of State governments by a hostile
Central government. And the verdict also categorically ruled that the floor of
the Assembly is the only forum that should test the majority of the government
of the day, and not the subjective opinion of the Governor, who is often referred
to as the agent of the Central government. "The Chief Minister of every State
who has to discharge his constitutional functions will be in perpetual fear of the
axe of Proclamation falling on him because he will not be sure whether he will
remain in power or not and consequently he has to stand up every time from
his seat without properly discharging his constitutional obligations and
achieving the desired target in the interest of the State," the Court said.

• And later whenever the case of a hung Assembly, and the subsequent exercise
of government formation, came up, the Bommai case has been cited, making it
one of the most quoted verdicts in the country's political history.