INTRODUCTION
According to Granville Austin, the Indian Constitution is an example of cooperative federalism. There are various mechanisms which ensure cooperation between the Union and the State Governments. The constitution establishes a federal structure in India, i.e., there are separate Governments of the union and states, and there is a division of powers between the two. However, there are other constitutional provisions and practices which impart unitary features to Indian federation by giving more powers and prominence to the union in comparison to states.[i]
- Supremacy of the constitution
- Division of powers between the union and states
- Independent supreme court as a federal court
- The upper house of the parliament represents the states of the union
- The written constitution
Hence, we can say that the Constitution of India is basically federal but with certain unitary features. The majority of the Supreme Court judges in Kesavananda Bharati v. State of Kerala[ii], were of the view that the federal features form the basic structure of the Indian Constitution. However, there is some controversy as to whether the Indian Constitution establishes a federal system or it stipulates a unitary form of Government with some basic federal features. Thus, to decide whether our Constitution is federal, unitary or quasi federal, it would be better to have a look at the contents of the Constitution. The essential features of a Federal Polity or System are – dual Government, distribution of powers, supremacy of the Constitution, independence of Judiciary, written Constitution, and a rigid procedure for the amendment of the Constitution.
The political system introduced by our Constitution possesses all the aforesaid essentials of a federal polity as follows:
(a) In India, there are Governments at different levels, like Union and States.
(b) Powers to make laws have been suitably distributed among them by way of various lists as per the Seventh Schedule.
(c) Both Union and States have to follow the Constitutional provisions when they make laws. (d) The Judiciary is independent with regard to judicial matters and judiciary can test the validity of independently. The Supreme Court decides the disputes between the Union and the States, or the States inter se.
(e) The Constitution is supreme and if it is to be amended, it is possible only by following the procedure explained in Article 368 of the Constitution itself.
From the above, it is clear that the Indian Constitution basically has federal features. But the Indian Constitution does not establish two co-ordinate independent Governments. Both the Governments co-ordinate, co-operate and collaborate in each other’s efforts to achieve the ideals laid down in the preamble.
PECULIAR FEATURES OF INDIAN FEDERILSM:
Indian Constitution differs from the federal systems of the world in certain fundamental aspects, which are as follows:
- The Mode of Formation:
A federal Union, as in the American system, is formed by an agreement between a number of sovereign and independent States, surrendering a defined part of their sovereignty or autonomy to a new central organisation. But there is an alternative mode of federation, as in the Canadian system where the provinces of a Unitary State may be transformed into a federal union to make themselves autonomous. India had a thoroughly Centralised Unitary Constitution until the Government of India Act, 1935 which for the first time set up a federal system in the manner as in Canada viz., by creation of autonomous units and combining them into a federation by one and the same Act.
- Position of the States in the Federation:
In a federal system, a number of safeguards are provided for the protection of State’s rights as they are independent before the formation of federation. In India, as the States were not previously sovereign entities, the rights were exercised mainly by Union, e.g., residuary powers.
- Citizenship:
The framers of the American Constitution made a logical division of everything essential to sovereignty and created a dual polity with dual citizenship, a double set of officials and a double system of the courts. There is, however, single citizenship in India, with no division of public services or of the judiciary.
- Residuary Power:
Residuary power is vested in the Union. In other words, the Constitution of India is neither purely federal nor purely unitary. It is a combination of both and is based upon the principle that “In spite of federalism the national interest ought to be paramount as against autocracy stepped with the establishment of supremacy of law”.
JUDICIAL VIEW:
The question as to whether the Indian Constitution has a federal form of Government or a unitary constitution with some federal features came up in various cases before the Supreme Court and the High Courts. But in most cases, the observations have been made in a particular context and have to be understood accordingly. The question rests mostly on value judgement i.e., on one’s own philosophy.
In state of West Bengal vs. Union of India[iii]held that the Indian constitution is not truly federal because the states are not coordinate with the union and are not sovereign. In re under Article 143 (AIR 1965 SC 745), it characterized the constitution as federal. In the state of Rajasthan vs. Union of India[iv], it characterized the constitution more unitary than federal. In Satpal vs. State of Punjab[v], it expresses the view that there is combination of federal structure with unitary feature in the Indian constitution. In Jain case[vi] held that India is not a compact of sovereign states which have come together to form a federation by ceding a part of their sovereignty to the federal State and thus, India cannot be characterized as a federal state. In State of Haryana vs. State of Punjab[vii], the apex court discussed the concept of federation and the federal character of India. It observed in a semi-federal system of government, which has been adopted under the Indian constitution, all the essential powers, both legislative and executive have been conferred on the central government. True federalism means the distribution of powers between a central authority and the constitution units. In this case, the supreme court also held that the decision of one government relating to governance of a state or its execution would bind the successor government when it does not involve any political philosophy. The successor government must complete the unfinished job.
In Kuldip Nayar vs. Union of India[viii], the petitioners challenged the representation of the people (amendment) Act, 2003 by which the requirement of “domicile” in the state concerned for getting elected to the Rajya Sabha was deleted, which according to them violated the principle of federalism, a basic feature of the constitution. The supreme court held that it is no part of federal principle that the representatives of the sates must belong to that state. There is no such principle discernible as an essential attribute of federalism. The nature of federalism in the Indian Constitution is no longer res integra (matter not yet decide). There can be no quarrel with the proposition that the Indian model is broadly based on a federal form of governance but with a tilt toward the center. Under strict federalism, the lower house (“the people”) and the upper house (“Union” of the federation) have equal legislative and financial powers. However, in the Indian context, strict federalism was not adopted. The Indian union has been described as the “holding together” of different areas by the Constitution-framers, unlike the “coming together” of constituent units as in the case of the USA and the confederation of Canada.
CONCLUSION
The federal structure of 1935 influenced the India’s choice of constitution after freedom and led to the adoption of a “cooperative federation”[ix]. In effect, the 1935 scheme of the divisions of power between the centre and units came to the generally adopted by the constitution of India. The policy of linking democratization to federalism encouraged dissention and confrontation by inspiring forces of regionalism and complicated the entire question of constitutional reforms by compounding it with the problems of princely states. In attending to accommodate the concept of responsible government in ten provinces within the specifications of their federal design wherein the centre was to remain in real control and authority over the provinces the British created a federal pattern which combined the parliamentary system[x]. This federal pattern draws out a fine distinction between the expression “Union of India” and “Territory of India.” The former includes only the states which enjoy the status of being members of the federal system and share a distinction of powers with the union. The latter includes the entire territory over which the sovereignty of India for the time being extends and “territory of India” comprises the territories of states, union territories and other territories which can be acquired from time to time. Article 1 (3) (c) does not expressly confer power on the government of India to acquire new territories, but it is the inherent the right of a sovereign state to acquire a foreign territory, and no parliamentary legislation is required for this purpose. It is to be noted that only “States” are the members of the Union of India (by virtue of Article 1 (1)). In State of Haryana vs. State of Punjab[xi], “semi federal” was used. And in Shamsher Singh vs. State of Punjab, the constitution was called “more unitary than federal”[xii]. In India, the union is indissoluble but not so the states. No state can secede. The supreme court has described the Indian polity as an indestructible union composed of destructible states. It means that the union cannot be destroyed by succession. No state possesses the right to separate itself from the federation. It is the success of federalism in giving effect to the aspiration of people that there is a never-ending demand for creation of new states. In the constitution of 1950, there were a 9 Part A and 5 Part B states. As of today, the total number of states is 29 and Part B has been abolished. Hence, the constitutional provisions made India truly federal and it is duty of everyone to respect the legal and moral sanctity of the provisions of such a great constitution.
Author
Reshma Jaya
Final year B.A LL.B Student Govt Law College Trivandrum.
Member LJRF Trivandrum Chapter
