About the Author
Nirupama. C is a 5th semester student of Government Law College, Ernakulam doing 5 year integrated B.Com LLB degree.
The Constitution of any country is its blueprint to the world. It is a reflection of the country’s past ,present and the future it awaits.The Indian Constitution is the world’s longest written constitution .It has been 74 years since it was adopted by the country and is widely regarded as a Quasi federal structure i.e. federal in structure but unitary in spirit. But the topic has been always up for debate with one sect claiming that its unitary features dilutes the federal structure while another set arguing otherwise. This article will thus be exploring through the concept of federalism and the impact of Unitary principles on the Indian Constitution.
The constitutions around the world are framed mainly in accordance with the federal and unitary principles. Federal systems are characterized by a concept of dual polity with central Governments at the national and the state or provincial governments at regional level . Professor K C Wheare has defined it as, “the method of dividing powers so that the general and regional governments are each, within a sphere, co-ordinate and independent.” Thus the dual governments of the country will enjoy independence in their own spheres but will coordinate with one another in accordance with the law of the land where they function.
The following are the characteristics of a Federal System :
• Dual Polity /Distribution of Powers -The countries with a federal constitution are characterized to render powers to both Central Government at the national level and the State or Provincial Government at the regional levels. These powers are systematically distributed by ensuring no superiority or subordination of one over the other. There functions are independent from one another and are coordinated by the constitution for the welfare of the country.
• Constitutional Supremacy – In a federal set up the constitution is the supreme law of land. All other special laws are subjected to its provisions an unless otherwise specified in the constitution. Therefore laws in violation of the constitutional provisions will be void. Thus, Constitution is the supreme law of the land and the other laws are made according to its provisions.
• Written Constitution – Federal system promotes the adoption of a written constitution. This is comprehensible considering that the system aims at ensuring the supremacy of Constitution in the land. An unwritten constitution will lead to ambiguity regarding the provisions .It becomes difficult for its application and leads to manipulations thus weakens its utility and reputation. Therefore, federal systems promote a written constitution in the country.
• Rigidity – The supremacy of the constitution enjoyed in the federal system also makes it difficult to amend them easily and thus possesses a rigid character. This is also resulting as a byproduct of the constitution being written that aims at ensuring stability. This makes the process of amendment very difficult through the Federal or state governments exclusively.
• Authority of Courts – A federal system provides the Courts in the territory ,the power to monitor the laws made by the Federal and state governments and declaring the laws in violation of the constitution as void .They ensure that no authority is encroaching upon the powers of the other thereby ensuring their independence. Thus ,the courts are entrusted with the responsibility of safeguarding the Constitution and its application in the country.
The United State of America (USA), Switzerland, Australia ,Canada etc are some of the countries who have adopted a federal system .The Indian Constitution is also called a federal constitution as it posseses the essential features of federal system. The country has a dual polity with Central government at the national level and state governments at the regional level. Their powers are clearly prescribed by the constitution itself thus preventing any encroachments.They have adopted a written constitution that is not easily amendable i.e.only in accordance with the rigorous procedure prescribed by it . The laws in contravention of the constitutional provisions are declared void by the judiciary through a system of judicial amendment in accordance with the constitutional procedure established for the same. However the constitution is not purely based on federal principles and has an evident inclination towards certain unitary features. Countries like United Kingdom are known to have a Unitary System. While drafting the Indian Constitution, the framers have adopted various constitutional provisions from across the globe leading to a perfect amalgamation . This may be one of the many reasons for the vague state of the Constitutions nature .
The unitary features or modifications in the Federal Constitution of India are as following:
• Union interference over States
The Constitution has demarcated the legislative powers of Center and the States through Art 246 which has classified them into Union List ,State list and Concurrent list under the 7th schedule.The Centre has the power over matters of the Union list ,State has power over the matters in the State list and matters under Concurrent list comes under the purview of both Centre and State. Whenever there is a dispute between the Centre and the State over matters under Concurrent list ,the decision of the Centre prevails. Further under Art 249 allows interference of the Central Government in the matters of the State list to make law when it is of essential for the protection of national interest.Art 256 and 257 allows the Center to issue administrative directions in order to comply the executive power of State with the laws made the Parliament and makes these directions binding upon them.
• Emergency Provisions
Art 352-354,356,358 of the Indian Constitution the Parliament can make laws on State matters during the emergency proclaimation in the country. The Union has the power to give directions to the State and exercise power on all of the matters of State List .The Indian Constitution allows the President of the country to issue state emergency proclaimation under Art 356 if he is satisfied that the State’s constitutional machinery has collapsed. This will allow the President to assume all of the powers of the State including the Governor’s. Financial emergency under Art 360 will allow Union to take measures,issue directions ,orders and control over Money bills passed by the State Legislature even to control the situation.
• Territorial Control
Under Art 3 of the Constitution the allows the Parliament to bring changes or alterations the boundaries ,areas and names of the existing states or form new states unilaterally .
• Gubernatorial Powers
Under provisions of Art 155 , 156 and Art 163 ,the Governor is appointed by the President and holds the office under his pleasure and to some extend exercises his power without the aid and advice of the Council of Ministers of State when required in accordance to his discretion under the Constitution .This appointment and control of the Governor paves way for the possibility of Central control over the States functioning. Further under Art 200 ,201 , 288(2) and 304 it allows the Governor to reserve certain Bills passed by the State Legislature for the consideration of the President with or with out prior sanction of the President as required. Thus, they interfere in the law making power of the State by the Central forces.
All of the above said provisions of the Indian Constitution puts its status as a federal constitution at question. They depicts how in situations the Center exercises superiority over the State which destroys the basic principle of Federalism. One may argue that with so many features exhibiting Unitary principles, how can it still retain its image of a federal constitution .Prof . K C Wheare called Indian Constitution as Quasi-federal i.e. Indian constitution establishes a Unitary state with some secondary federal features , in “India’s New Constitution Analysed ”. P K Tripathi in “Federalism : The Reality and the Myth” also holds similar views. Merely because there are slight unitary features does not desolve the status of a federal system. “It may be pointed Swiss Constitution another federal constitution expressely empowers the federal government to intervene on its own initiative if disorder within the cantons endanger the safety of the nation. In the US and Australia ,the intervention of the Centre is conditional on the request of a State.” This shows that many federal countries have unitary features in their constitution .But that does not reduce the constitution from its status as a Federal constitution but is merely indication of bringing changes as per the situation demands. The Indian Constitution is also framed keeping in mind the history, status quo and the future aspirations of the country .
Thus categorizing the Constitution as Federal or Unitary takes a back seat and the needs of the country is the priority in the process of law making. It is not necessary that in the future also these principles become applicable. Law making will change with the changes in time .It is possible that in future a new branches of principles form and federal and unitary systems become chapters in history books. In the current scenario calling the Indian Constitution as Quasi federal is relatively accurate rather than categorizing them.
References
1 K C Wheare , Federal Government (4th Edition ,1963) 10.
2 Prof K C Wheare, India’s New Constitution Analysed” 48 A11 LJ 21 3P K Tripthi ,Federalism :The Reality and the Myth, (1974)
3 Journal of Bar Council of India 251
4 V.N.SHUKLA’S CONSTITUTION OF INDIA -A-28(Mahendra Pal Singh ,14th ed. 2022)
