By Sahil Arora, JGLS
Editor’s Note: Federation is the existence of dual polity. Federalism is a principle of government which defines the relationship between Central Government at the national level and its constituent units at the regional, state or local levels. The principle of government allocates power and authority between the national and local governmental units in a way that each unit is delegated a sphere of power and authority, that only it can exercise, whereas the others have to be shared.
“Federalism has been part of the public discourse in India for many decades, before and after independence in 1947, but it has gained greater importance since the 1990s when the country’s national polity saw the advent of the coalition era.”[i]
Prior to the formation of the Constituent Assembly, the Cabinet Mission Plan emphasized on a Central Government with very limited powers to be confined to foreign affairs, defense, and communication. In contrast, the Muslim League and the Indian National Congress did not agree to this. Despite this, the first report of the Constituent Assembly envisaged a weak center upon the encouragement of Cripps and Cabinet Mission Plans.
It was the passing of India Independence Act and the subsequent partition of India which made the Constituent Assembly take up a more unitary version of federalism. Mahatma Gandhi also favored the decentralized structure and preferred a panchayat/village based federation. On the other hand, the then Prime Minister Jawaharlal Nehru and Dr. BR Ambedkar were in favor of a unitary system of governance while the Home Minister Sardar Vallabhai Patel also stood for the idea of federalism.
All is well that ends well, and finally a healthy compromised was reached which resulted in a balance of power between the Centre and the State, and India was thus described as ‘Unity of States’ and this unity being indestructible. The structure prescribed for Union as well as State governments with a single citizenship policy rather than dual citizenship.
In India, there are two governments in existence, the Union Government and the State Government. The two governments do not subordinate with each other rather cooperate with each other while working independently. Though the Indian constitution has the traits of being a federal constitution, in its strict sense, it is not.[ii] The presence of features which are necessary for the existence of a federation is quite a unique aspect of Indian Constitution but on the other side, there are provisions which give more power to the Union Government vis-à-vis that of State governments. Henceforth, the Indian Constitutional structure is a quasi-federal structure and it was made like this in the 1935 Act.
This Act laid down the foundations of the federal form of government in India. It provided for the distribution of legislative powers between the Union and the provinces (the structure at that time). These provisions were laid down for promoting harmony and resolving differences between the provinces. The Act further maintained for a sense of cooperative relationships amongst the provinces. Getting into nuances of this Act, Sections 131, 132 and 133 laid down provisions for resolving the water related disputes. Basically, these provisions dealt with the problems relating to inter Province Rivers and river valleys.
On the other hand, Section 135 of the 1935 Act laid down provisions for the creation of councils to deal with the coordination between the various provinces of British India. The need for creating a cooperative relationship between the provinces was felt even before independence. The Indian Constitution has incorporated the principles in a detailed form which were actually laid down under the 1935 Act.
A well designed, and more important, well-functioning system of federal governance, by virtue of its manifold benefits, plays a key role in promoting the stability and prosperity of nations as the heights attained in development by the leading federations of the world – USA, Canada, Australia, and Switzerland – demonstrate. On the other hand, unless carefully crafted, federal systems do not endure as evidenced by the disintegration of many of the federal formations that came into being in the last century, such as Soviet Russia, Yugoslavia, Czechoslovakia, Rhodesia, and Nyasaland (Watts, 1999).[iii]
As earlier stated, the Indian constitution though, claims to be decentralized and federal is somehow too centrist. The Centre functions in a way which does not allow the State’s autonomy to function freely in a completely decentralized way. Now, the question arises “Was it intended to be made this way?” This could be highlighted as one of the reasons for India’s diminutive growth when compared to China, where complete autonomy to provinces in running their economies has resulted in much higher growth rates.
What makes the Indian federation ‘quasi-federal?’
No doubt, India has a political and constitutional structure where federal features are evident. There is sharing of power between the Centre and the States but the Constitution provides Central Government with supreme powers and concentrates administrative and financial powers completely in its hands.[iv] Seems there was some deficiency which made the constitutional framers incorporate features which worked against the federal principle.
Reiterating some Central Government’s powers, it has the power to reorganize the states through parliament; Governors appointed by the Centre can withhold assent to legislation passed by the state; Parliament can override the legislations passed by the states for the reasons of national interest; Governors have a role in the formation of state governments and the Centre is vested with the power to dismiss the state governments under Article 356; residuary powers are vested with the Centre and the major taxation powers lie with the Central authority. Fortunately, the reviewing power of judiciary of Centre-State relation exists like that in the federal structure. The bottom-line is that the Indian political system has federal features which are circumscribed with a built-in unitary core.[v]
Former Chief Justice Beg, in State of Rajasthan v UOI, 1977 called the Constitution of India as ‘amphibian’. He said that ”….If then our Constitution creates a Central Government which is ‘amphibian’, in the sense that it can move either on the federal or on the unitary plane, according to the needs of the situation and circumstances of a case…”.[vi]
Similarly in S.R. Bommai v Union of India, “pragmatic federalism” was used. Quoting Justice Ahmadi, “….It would thus seem that the Indian Constitution has, in it, not only features of pragmatic federalism which, while distributing legislative powers and indicating the spheres of governmental powers of State and Central Governments, is overlaid by strong unitary features…”[vii]
Another case on this issue is that of State of West Bengal V. Union of India. This case dealt with the issue of the exercise of sovereign powers by the Indian states. The Supreme Court, in this case, held that the Indian Constitution does not promote a principle of absolute federalism. The court further outlined four characteristics highlighting the fact that the Indian Constitution is not a “traditional federal Constitution”.[x]
Firstly, being that there is no provision of separate Constitutions for each State as required in a federal state. The Constitution of India is the supreme document, which governs all the states.
Secondly, the Constitution can be altered only by the Union Parliament; whereas the States have no power to alter it.
Thirdly, in contradiction to a federal Constitution, the Indian Constitution renders supreme power upon the Courts to invalidate any action which violates the Constitution.
Fourthly, the distribution of powers facilitates local governance by the states and national policies by the Centre.
The Supreme Court further held that both the legislative and executive power of the States is subject to the respective supreme powers of the Union meaning that Centre is the ultimate authority for any issue. The political sovereignty is unevenly distributed between the Union and the States with greater weightage in favor of the Union. Another reason which militates against the theory of the supremacy of States is that there is no concept of dual citizenship in India. The learned judges finally concluded that the structure of India as provided by the Constitution is centralized, with the States occupying a secondary position vis-à-vis the Centre.
Conversely, Justice Subba Rao was of the view that under the scheme of the Indian Constitution, sovereign powers are distributed between the Union and the States according to their respective spheres. The legislative field of the union legislature is much wide-ranging than that of the State legislative assemblies; the laws passed by the Parliament should, therefore, have an upper hand 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 particular thing in his opinion of the learned judge does not affect the federal principle. He while arguing this gave the parallel of Australia. In Australia, 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. In a nutshell, Justice Subba Rao argued that the Union has a bigger role to play when compared to states and therefore, the Union powers have to supersede the State’s.
This minority view provided by Justice Subba Rao, in this case, had consistency with the federal scheme under the Indian Constitution. The Indian Constitution undoubtedly accepts the federal concept and distributes the sovereign powers between the coordinate Constitutional entities, namely, the Union and the States.
India, like Canada, constitutes an asymmetrical federation in the sense that some states have constitutionally guaranteed prerogatives setting them apart from the other states of the federation. However, in the case of India, rather unlike Canada, the affording of special status to a group or territorial entity never came easy.[xi] Article 370 expresses special provisions for the state of Jammu and Kashmir with respect to the rest of India as per its instrument of accession.
Also, there are special provisions for the states of Andhra Pradesh, Arunachal Pradesh, Assam, Goa, Mizoram, Manipur, Nagaland and Sikkim as per their accession or state-hood deals as laid down in Article 371A-I. President’s rule is another important thing to be listed here where the Central Government (through its appointed Governor) takes control of the State’s administration for certain months when no party can form a government in the state or in case there is a violent disturbance in the state. Also, Article 3 articulates that the Parliament can change the name, area or boundary of a State without the consent of the State concerned. Thus the States in India do not enjoy the right to territorial Inviolability.
The Seventh Schedule of the Constitution indicates that distribution is one sided and is heavily in the favor of Centre. Union list contains the largest number of most important subjects. For example, almost all the tax subjects are in the Union list (except the Sales Tax). Another related provision is Article 248 which states that any subject that does not belong to the Concurrent and State lists, belongs to the Residuary List and it belongs to Central Government.
Article 312 talks about provides for the creation of All India Services (who can function both as Central and State Services). The All India Services officers are recruited, trained and appointed by the Centre but they largely function under the State Government. It is they who largely control the administration of State. The State government cannot take disciplinary action against officers, except transfer. Any other action take removal from service or reduction in rank can only be controlled by the Central Government.
Article 356 lays down that during President Rule, the Parliament is authorized to legislate on one or more subjects of State list for the State’s concerned. The law thus made under President Rule continues to be in force.
Provisions regarding Emergency are again of utmost importance. Article 352 talks about the proclamation of National Emergency. It says that when the national security of India or any part of its territory is threatened by war or external aggression or armed rebellion, the President can declare National Emergency.[xii] (44th Amendment Act) In case of national emergency the distribution of power is suspended and constitution functions as if it is a Unitary Constitution.
Another Emergency provision is Article 360 and talks about Financial Emergency of Centre over the country. When the Financial Emergency is in force, the distribution of the financial resources between the Centre and State can be suspended by Centre and all the financial resources can be used by Centre to meet the emergency situation.
Digressing a bit from the general federalism is the concept of Cooperative federalism, which is another class of a federal structure. This concept originated in the Australian Constitution as there existed a felt need for a change from competitive to the cooperative relationship in the working of the federal constitution. This modern view of federation regards federation as a functional arrangement rather than a mere division of powers between Centre and State. Cooperative federalism suggests that the Centre and the States share a horizontal relationship and not the one in which one is over & above the other. There are three factors through which this trend is promoted, namely:
(1) The exigencies of war when for national survival, national efforts take precedence over fine points of Centre-state division of powers;
(2) Technological advances mean making of communication faster;
(3) The emergence of the concept of the social welfare state in response to public demands for various social services involving huge outlays which the governments of the units could not meet by themselves out of their own resources.[xiii]
This concept helps the federal structure, with its divided jurisdiction to act in harmony. This basically promotes cooperation by minimizing tension among the various constituent governments of the federal union to pool their resources in order to achieve the desired results. In India, there are some constitutional mechanisms as also some extra-constitutional mechanisms to foster the spirit of Cooperative Federalism. The constitution makers might have deliberately provided for such features in the constitution in order to ensure the smooth working of the government.
Anyhow, irrespective of India being quasi-federal in its functioning and the way it is structured, it still incorporates some of the features which are essential for a federal arrangement. To pen down some of these features;
Any parliamentary constitution cannot be given the status of being a federal constitution because a written demarcation of the division of power is necessary for the smooth functioning of the Government. Providentially, India has a written constitution where the Central Government some of its powers with the respective State Governments.
Supremacy of the Constitution
This is another important point in the list of features which asserts that the constitution is legally binding on both the Central and State Governments. No State or even the Centre can change the provisions of the Constitution that are related to the power and status of the government to enjoy.
Rigidity of the Constitution
At third in the list features the concept of rigidity which allows no flexibility for a federal constitution. This is the substitute for the outcome of the supremacy of Constitution. Supremacy of Constitution brings the rigidity to it.
Division/Distribution of Powers
This is the last one to feature in this broad list of essential elements. Distribution of powers is the fundamental and the most essential characteristics of the federation. The powers of State are divided into federal as well as unit governments at national and local levels.
The Seventh Schedule in the India Constitution lays down 61 items which are attributed to the State list upon which State Governments can make a law, whereas there is a Union list containing 100 items upon which only Union Government can make a law. This makes clear that there is a structure made to fit the federal essence but the powers are divided in such a way that it ends up being a quasi-federal state.
It is unfortunately practically difficult to throw light upon each and every provision where distribution/division of powers is evident and makes clear that India does not meet the federal requirements. Nevertheless, an effort is made to impress upon every such element.
Bringing in the picture, the US Constitution, where the working of government is divided into two domains, namely the Federal and the State Governments. These governments are not subordinate to each other but are co-ordinated and independent within the scopes allotted to them.[xiv] It is also argued that such a structure of independent co-ordinate authorities is what forms the gist of federal principle and India, because of the absence of this feature does not qualifies to be a federal state.
The Indian Constitution per se is not a covenant, or a pact between the States; rather the States are the products of the Constitution and ultimately of Parliament. A renowned expert on federalism, Professor Ronald L Watts defends the Indian approach claiming that “In some cases, however, where territorial social diversity and fragmentation is strong, it has been considered desirable, as in Canada and India initially, and in Spain, to give the federal government sufficiently strong, and even overriding, powers to resist possible tendencies to balkanization.”
Federalism has always remained a ‘work-in progress’ or as Iqbal Narain puts it ‘constantly in the making’ (Copland and Rickard, 1999). The federal structure needs to be altered and mended perpetually to cope up with the changing environment and emerging challenges.
If I may conclude now, ‘Federalism’ is one of those good echo words that evoke a positive response toward many concepts as democracy, progress, constitution, etc. This form of government tries to facilitate the sociopolitical cooperation between two sets of identities through various structural mechanisms of ‘shared rule.’ But due to obvious reasons, center- state relations and the state autonomy have become the cardinal issues of the Indian federalism.
The union government appointed the Sarkaria Commission in 1983 to examine and review the working of the Indian Federalism, but this Commission didn’t make any useful recommendations for structuring the Indian federalism in a proper manner. The Union government also took in a very easy approach some of the recommendations made by this commission. This shows that even though our constitution is said to be federal, but this overemphasis on the power of the federal government makes incapable of dealing effectively with socioeconomic challenges and strengthening national unity. Hence, it is appropriate to restructure Indian Federalism to make it more effective and promote the Centre- state relationship.[xv]
The Indian Constitution is a constitution sui generis. On one hand, the constitution contains features which are of high importance for a federal arrangement, at the same time it contains provisions which fight for a strong Centre, thus making it quasi-federal in nature. The fact to be appreciated here is that these dual federalism provisions were deliberately incorporated to best fit a polyglot country like India.
Formatted on February 18th, 2019.
[i]Surendra Singh and Satish Misra “Federalism in India: Time for a Relook?”
[iii] Amaresh Bagchi “Fifty Years of Fiscal Federalism in India – An Appraisal”
[iv] Prakash Karat “Federalism and the political system in India”
[v] Prakash Karat “Federalism and the political system in India”
[vi]State of Rajasthan v Union of India (1977) 3 SCC 592
[vii]S R Bommai v Union of India AIR 1994 SC 191
[viii]State of Haryana v. State of Punjab
[ix]Shamsher Singh & Anr v. State Of Punjab 1974 AIR 2192
[x]State of West Bengal v. Union of India 1963 AIR 1241
[xi] Patrick Hoenig “Federalism and identity in India”
[xiv] Surendra Singh and Satish Misra “Federalism in India: Time for a Relook?”
[xv]“A debate on Indian Federalism” Concept of Federalism