By Siddharth Dalabehera
The debate whether India has a ‘Federal Constitution’ and ‘Federal Government’ has been grappling the Apex court in India because of the theoretical label given to the Constitution of India, namely, federal, quasi-federal, unitary.
Until the West Bengal decision in 1963, our Supreme Court had made many pronouncements labeling the Indian Constitution as ‘federal.’
In the Automobile case, S.K. Das, J. observed that the essential features of a ‘federal or quasi-federal’ structure were present in the Indian Constitution:
“The evolution of a federal structure or a quasi-federal structure necessarily involved, in the context of the conditions then prevailing, distribution of powers and a basic part of our Constitution relates to the distribution with the three legislative lists in the Seventh Schedule. The Constitution itself says by Art.1 that India is a Union of States and in interpreting the Constitution one must keep in the view the essential structure of a federal or quasi-federal constitution, namely, that the units of the Union have also certain powers as has the Union itself…”
In the Reference Case of 1965, GAJENDRAGADKAR, C.J., speaking for the majority, observed that, like other federal States, the Indian Constitution distributes powers between the Union and the States and that in order to maintain this federal distribution, the Judiciary was made the sole interpreter and protector of the constitution, which could not be changed by the process of ordinary legislation by either the Union or a State Legislature. He characterized the Indian Constitution as a ‘federal constitution’.
Even in 1973, some of the Judges in the Full Bench case of Keshavananda considered federalism as one of the ‘basic features’ of the Constitution of India.
In the next year, however, KRISHNA IYER, J., in Shamser v. State of Punjab, watered it down by describing it as ” an Indo-Anglian version of the Westminister model with quasi-federal adaptations”.
In 1977, BHAGWATI, J., in Union of India v. Sankalchand, described our Constitution as a ‘federal or quasi-federal’, Constitution.
In Pradeep Jain V. Union of India, the Apex Court expressed a non-traditionalistic yet pragmatic opinion while explaining the federal concept in the context of the unified legal system in India- India is not a federal State in the traditional sense of that term. It is not a compact of sovereign State which have come together to form a federation by ceding undoubtedly federal features.
In Ganga Ram Moolchandani v. State of Rajasthan the Supreme Court reiterated: ‘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 independent judiciary.
The Apex Court in ITC LTD v. Agricultural Produce Market Committee expressed a similar opinion.
There are, however, certain decisions of the Supreme Court which have been landmark pronouncements on federal features of the Indian Constitution which the researcher will be focusing over in the upcoming chapters.
WEST BENGAL CASE
The West Bengal case of 1963 offers the first instance of this category where this issue was discussed at length by the Apex Court. The main issue involved in this case was the exercise of sovereign powers by the Indian states. The legislative competence of the Parliament to enact a law for compulsory acquisition by the Union of land and other properties vested in or owned by the state and the sovereign authority of states as distinct entities were also examined.
The Apex Court held that the Indian Constitution did not propound a principle of absolute federalism. Though the authority was decentralized this was mainly due to the arduous task of governing the large territory. The Court outlined the characteristics, which highlight the fact that the Indian Constitution is not a “traditional federal Constitution”. Firstly, there is no separate Constitution for each State as is required in a federal state.
The Constitution is the supreme document, which governs all the states. Secondly, the Constitution is liable to be altered by the Union Parliament alone and the units of the country i.e. the States have no power to alter it. Thirdly, the distribution of powers is to facilitate local governance by the states and national policies to be decided by the Centre.
Lastly, as against a federal Constitution, which contains internal checks and balances, the Indian Constitution renders supreme power upon the courts to invalidate any action violative of the Constitution. The Supreme Court further held that both the legislative and executive power of the States are subject to the respective supreme powers of the Union.
Legal sovereignty of the Indian nation is vested in the people of India. Political sovereignty is distributed between the Union and the States with greater weight in favor of the Union. Another reason which militates against the theory of the supremacy of States is that there is no dual citizenship in India. Thus, the learned judges concluded that the structure of the Indian Union as provided by the Constitution one is centralized, with the States occupying a secondary position vis-à-vis the Centre, hence the Centre possessed the requisite powers to acquire properties belonging to States.
As against this opinion, was the judgment rendered by Justice Subba Rao, the great champion of State rights. Justice Subba Rao was of the opinion that under the scheme of the Indian Constitution, sovereign powers are distributed between the Union and the States within their respective spheres. As the legislative field of the union is much wider than that of the State legislative assemblies, the laws passed by the Parliament prevail over the State laws in case of any conflict. In a few cases of legislation where inter-State disputes are involved, the sanction of the President is made mandatory for the validity of those laws.
Further, every State has its judiciary with the State High Court at the apex. This, in the opinion of the learned judge, does not affect the federal principle. He gives the parallel of Australia, where appeals against certain decisions of the High Courts of the Commonwealth of Australia lie with the Privy Council. Thus the Indian federation cannot be negated on this account. In financial matters, the Union has more resources at its disposal as compared to the states. Thus, the Union being in charge of the purse strings, can always, persuade the States to abide by its advice.
The powers vested in the union in case of national emergencies, internal disturbance or external aggression, financial crisis, and failure of the Constitutional machinery of the State are all extraordinary powers in the nature of safety valves to protect the country’s future. The power granted to the Union to alter the boundaries of the States is also an extraordinary power to meet future contingencies. In their respective spheres, both executive and legislative, the States are supreme. The minority view expressed by Justice Subba Rao has consistency with the federal scheme under the Indian Constitution. The Indian Constitution accepts the federal concept and distributes the sovereign powers between the coordinate Constitutional entities, namely, the Union and the States.
The crux of the majority judgment, in this case, is that even though both the Union and States in India derive powers from the same Constitution, the States would have no legal rights as against the overriding powers of the Union, because of a general theory of paramountcy or superiority of the Union.
The majority Judgment in the case, speaking through SINHA, C.J., it is submitted, is full of confusion and inconsistencies:
“The thesis of his Lordship was to demolish the plea of the State of WB that ” the States have within their allotted field full attributes of sovereignty and any exercise of authority by the Union… which trenches upon the sovereignty is void.”
He concluded that notwithstanding a distribution of powers between the Union and the States by the Constitution, the Union Legislature has an implied power to acquire property vested in the States while exercising the legislative powers granted to the Union by List 1 of the 7th Schedule:
“Exercising powers under the diverse entries… the Union Parliament could legislate so as to trench upon the rights of the States in the property vested in them. If exclusion of State property from the purview of Union Legislation is regarded as implicit in those entries in List I, it would be difficult if not impossible for the Union Government to carry out its obligations in respect of matters of national importance….”
No positive interdict against its exercise is perceptible in the Constitution: and the implication of such an interdict assumes a degree of sovereignty in the States of such plenitude as transcends the express legislative power of the Union. The Constitution which makes a division of…powers between the Union and the States is not founded on such a postulate, and the concept of superiority of Union over the States in the manifold aspects… negatives it”.
The passage just quoted, however, runs counter to the proposition with which the learned Chief justice started his judgment:
“The legal theory on which the Constitution was based was the withdrawal or resumption of all the powers of sovereignty into the people of this country and the distribution of these powers- save those withheld from both the Union and the States by reason of the provisions of Part-III- between the Union and the States”.
In the Rajasthan case of the same year 1977, the learned judges embarked upon a discussion of the abstract principles of federalism in the face of the express provisions of the Constitution. It was stated that even if it is possible to see a federal structure behind the establishment of separate executive, legislative and judicial organs in the States, it is apparent from the provision illustrated in Article 356 that the Union Government is entitled to enforce its own views regarding the administration and granting of power in the States.
The extent of federalism of the Indian Union is largely watered down by the needs of progress, development and making the nation integrated, politically and economically co-ordinated, and socially and spiritually uplifted. The Court then proceeded to list out some of the Constitutional provisions which establish the supremacy of the Parliament over the State legislatures. In conclusion, the Apex Court held that it was the ‘prerogative’ of the Union Parliament to issue directives if they were for the benefit of the people of the State and were aimed at achieving the objectives set out in the Preamble.
BEG, C.J., observed-
“In a sense, therefore, the Indian Union is federal. But, the extent of federalism in it is largely watered down by the needs of progress and development of a country which has to be nationally integrated…”
Though somewhat equivocal, this observation does not go against the thesis propounded in the books, namely, that for normal times, the Indian Constitution offers a federal system, because the ‘watering down’, as his Lordship himself demonstrates, is due to particular provisions which are intended to meet extraordinary situations, such as Articles 256-257, 356, 365. These do not, therefore, affect the normal situation.
The actual decision in the Rajasthan case rests on the proposition that Article 356 is a non-justiciable provision, relating to a political question. Even in the American Constitution, there are provisions which are non-justiciable. Even in the Rajasthan case, it should be observed, at various places, the Judges observe that a Proclamation under Article 356 (1) may now be questioned in the Courts on the grounds of mala fide.
Hence the non-justiciability of Art. 356 does not go to show that the provisions relating to distribution between the Union and the States are not justiciable or they are to be interpreted with any judicial bias towards Union predominance.
In the Karnataka Case, similarly, BEG, C.J., propounded his theory that the Indian Constitution only sets up a ‘pragmatic federalism’, “which is overlaid …by strongly unitary features…one wonders whether such a system is entitled to be dubbed “federal” in a sense denoting anything more than a convenient division of functions….The function of supervision is certainly that of Central Government with all that it implies”.
In substance, the learned Chief Justice denigrates Indian federalism under the Constitution to the status of the Devolution Rules under the GOI Act, 1919. A close examination of his observations would reveal where his fallacy lies. The learned Chief Justice relies on the degree of control which the Constitution has conferred on the Central Government, e.g., in giving it the residual legislative powers, the power to appoint State Governors, the power to give directions to State Governments.
While political scientists are concerned with the degree of Central control or supervision and its working in practice, what matters to the Bench and the Bar is justifiability of the division of powers made by a Constitution. If this latter feature exists, it can hardly be said that the division of powers made by the Constitution is only ‘convenient’ or that the federalism setup by it is merely ‘pragmatic’.
A judge has no concern for such speculation. His only business is to interpret the provisions of the Constitution.. Indeed, this function is acknowledged by the learned Chief Justice himself with the observation:
“This, however, does not mean that the Courts, acting under the guise of a judicial power can actually nullify, defeat or distort the reasonably clear meaning of any part of the Constitution in order to give expression to some theories of their own”.
The foregoing survey goes to show that the aberrations in the West Bengal & Karnataka cases are founded on wrong premises. The correct view is expressed by KAILASAM, J (lone minority) in the Karnataka case thus:
” In the distribution of powers… there is a strong tilt in favour of the Union…But the Union Government cannot claim any power which is not vested in it under the Constitution. There is no overriding power with the Union Government. It cannot deal with the State Government as its delegate, for the source of power for the union as well as the State which, is the Constitution and the Union Government cannot claim any powers over the state which are not found in the Constitution….”
“The observations made in the West Bengal case… are not in conformity with the otherwise consistent view that the Constitution is supreme and the Union as well as the States will have to trace their powers from the provisions of the Constitution and that the Union is not supreme…”
We can henceforth see that the Indian judiciary had interpreted the Constitution to declare India a unitary nation. This view of the apex court has lately undergone a change. The Court has recognized the fact that the framers of the Indian Constitution intended to provide a federal structure with a strong Centre, which would prevent the nation from disintegration.
Chief Justice P.B.Gajendragadkar, emphasized upon the federal nature of the Constitution and the Judiciary as the sole interpreter of the Constitution which could not be changed by the process of ordinary legislation.
The finer federal facet has often been misinterpreted by the central operators. So the battle for federal affirmation and restoration of democratic decentralization has gained momentum over the decade. Important Commissions like Rajamannar and Sarkaria Commission have stressed on the federal soul of the Constitution.
In the opinion of Amal Ray, the Indian Constitution is a product of two conflicting cultures one representing the national leader’s normative concern for India’s unique personality and the other over-emphasizing the concern for national unity, security, etc. And as a result, the founding fathers opted for a semi-hegemonic federal structure where the balance is in favour of the Centre.
This concept is aptly described in the insight offered by Dr. Ambedkar: the Indian Constitution would work as a federal system in ‘normal times’ but in times of ’emergency’ it could be worked as though it were a unitary system.
The critics of the Indian Federal system must not ignore the fact that not only the Federal Government in India has been made deliberately strong, there is also a centralizing tendency in the other federal states of the world such as Switzerland, Australia, Canada and the United States. It is time to undertake a study of Indian Federalism with a view to valuate the trends, frictions and difficulties which have developed in the area of inter-governmental relations and to seek to evolve ways and means to meet the challenging task of making the Indian federation a more robust, strong and workable system so that the country may meet the tasks of self-improvement and development.
The responsibility lies on not only the jurists and policy framers, but also the citizens of the country to work in a harmonious manner for the development of the country.
Formatted on February 14th, 2019.
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