Both the Centre and the States are co-operating and coordinating institutions having independence and ought to exercise their respective powers with mutual adjustment, respect, understanding and accommodation. Tension and conflict of the interests of the Centre and the respective units is an integral part of federalism. Prevention as well as amelioration of conflicts is necessary. Thus, the Indian federalism was devised with a strong Centre. Federalism with a strong Centre was inevitable as the framers of the Indian Constitution were aware that there were economic disparities as several areas of India were economically as well as industrially far behind in comparison to others.
The nation was committed to a socio economic revolution not only to secure the basic needs of the common man and economic unity of the country but also to bring about a fundamental change in the structure of Indian society in accordance with the egalitarian principles. With these considerations in mind the Constitution makers devised the Indian federation with a strong Union.
Federalism Defined
Federalism constitutes a complex governmental mechanism for the governance of a country. It seeks to draw a balance between the forces working in favour of concentration of power in the Centre and those urging a dispersal of it in a number of units. A federal Constitution envisages a demarcation of governmental functions and powers between the Centre and the regions by the sanction of the Constitution, which is a written document. From this follows two necessary consequences-(i) That the invasion by one level of government on the area assigned to the other level of the government is a breach of the Constitution.
(ii) That any breach of the Constitution is a justifiable issue to be determined by the Courts as each level of government functions within the area assigned to it by the Constitution.
K.C. Wheare defines federal government as an association of states, which has been formed for certain common purposes, but in which the member states retain a large measure of their original independence. A federal government exists when the powers of the government for a community are divided substantially according to a principle that there is a single independent authority for the whole area in respect of some matters and there are independent regional authorities for other matters, each set of authorities being co-ordinate to and subordinate to the others within its own sphere.
The framers of the Indian Constitution attempted to avoid the difficulties faced by the federal Constitutions of U.S.A, Canada and Australia and incorporate certain unique features in the working of the Indian Constitution. Thus, our Constitution contains certain novel provisions suited to the Indian conditions. The doubt which emerges about the federal nature of the Indian Constitution is the powers of intervention in the affairs of the states given to the Central Government by the Constitution According to Wheare, in practice the Constitution of India is quasi-federal in nature and not strictly federal. Sir Ivor Jennings was of the view that India has a federation with a strong centralizing policy. In the words of D.D.Basu The Constitution of India is neither purely federal nor unitary, but is a combination of both. It is a union or a composite of a novel type.
The Indian Constitution is not only regarded as Federal or Unitary in the strict sense of the terms. It is often defined to be quasi-federal in nature also. Throughout the Constitution, emphasis is laid on the fact that India is a single united nation. India is described as a Union of States and is constituted into a sovereign, secular, socialist, democratic republic.
As opposed to this is the opinion of some scholars who regard the Indian Constitution to be unitary in nature. It has been argued that the Indian Constitution does not satisfy certain essential tests of federalism, namely- the right of the units to make their own Constitution and provision of double citizenship. Further, in the three-fold distribution of powers, the most important subjects have been included in the Union list, which is the longest of the three lists containing 97 items. Even regarding the Concurrent list, Parliament enjoys an overriding authority over the State Legislatures. Article 253 empowers the Union Parliament to make laws implementing any treaty, agreement or convention with another country or any decision made at any international conference, association, or other body.
Some of the other Constitutional provisions, which are often quoted in favour of the Unitary status of the Indian Constitution are- emergency powers of the president to declare national emergency or declaring emergency in a state in the event of failure of Constitutional machinery, the appointment of governors, unification of judiciary and the dependence of the States on the Centre for finance. The power of the Union to alter the names and territory of the states, to carry out Constitutional amendments and to affect co-ordination among the States and settle their mutual disputes is also regarded as an indicator of the unitary character of the Indian Constitution.
It should be remembered that the aforementioned provisions in the Constitution are aimed at establishing a working balance between the requirements of national unity and autonomy of the States. Dr Ambedkar, one of the architects of the Indian Constitution, rightly prophesied: Our Constitution would be both unitary as well as federal according to the requirements of time and circumstances.
Constitutional Intent
Being aware that not withstanding a common cultural heritage, without political unity, the country would disintegrate under the pressure of fissiparous forces, the Constituent Assembly addressed itself to the immensely complex task of devising a Union with a strong Centre. In devising the pattern of the Centre State relations they were influenced by the Constitutions of Canada and Australia which have a Parliamentary form of government and America which has a Presidential form of government. The Government of India Act, 1935 was also relied upon with significant changes. The Constitution cannot be called "federal" or"unitary" in the ideal sense of the terms.
It is stipulated in the Constitution that India will be a Union of States (Art.1). The Constitution, thus postulated India as a Union of States and consequently, the existence of federal structure of governance for this Union of States becomes a basic structure of the Union of India. Dr. Ambedkar, the principal architect of the Constitution observed-........ the use of the word Union is deliberate.
The Drafting Committee wanted to make it clear that though India was to be a federation, the federation was not a result of an agreement by the States to join in the federation and that the federation not being the result of an agreement no state has a right to secede from it. Though the country and the people may be divided into different states for convenience of administration the whole country is one integral whole, its people a single people living under a single imperium derived from a single source.
The Constitution makes a distribution of powers between the Union and the States, the jurisdiction of each being demarcated by the Union, State and Concurrent lists. In case of a conflict between the two legislatures over a matter in the Concurrent list the will of the Parliament prevails. The supremacy of the Constitution- the hallmark of a federation- is an important feature of the Indian polity. Neither the Central government nor the State Governments can override or contravene the provisions of the Constitution. Another pre-requisite of a federation, namely, an independent judiciary - an interpreter and guardian of the Constitution - is also present in the Indian Federation. The Supreme Court can declare any law passed by the Union Parliament or a State legislature ultra vires if it contravenes any of the provisions of the Constitution.
Judicial Interpretation
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. The first significant case where this issue was discussed at length by the apex Court was State of West Bengal V. Union of India.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 was 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. The political sovereignty is distributed between the Union and the States with greater weight age 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, 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 next landmark case where the nature of the Indian Constitution was discussed at length was State of Rajasthan V. Union of India. 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.
The issue of federalism was carried forward in S.R.Bommai V. Union of India. Four opinions were rendered, expressing varying views. Justice Ahmadi opined that in order to understand the true nature of the Indian Constitution, it is essential to comprehend the concept of federalism. The essence of the federation is the existence of the Union and the States and the distribution of powers between them. The significant absence of expressions like 'federal' or 'federation' in the Constitution, the powers of the Parliament under Articles 2 and 3, the extraordinary powers conferred to meet emergency situations, residuary powers, powers to issue directions to the States, concept of single citizenship and the system of integrated judiciary create doubts about the federal nature of the Indian Constitution.
Thus, it would be more appropriate to describe the Constitution of India as quasi- federal or unitary rather than a federal Constitution in the true nature of the term. As opposed to this, Justice Sawant and Justice Kuldip Singh regarded democracy and federalism as essential features of the Indian Constitution. The overriding powers of the Centre in the event of emergency do not destroy the federal character of the Indian Constitution. The learned judges elaborated upon the scope and justified use of the power conferred on the president by Article 356 which will not restrict the scope of the independent powers of the respective States for "......every State is constituent political unit and has to have an exclusive Executive and Legislature elected and constituted by the same process as the Union Government."
In the opinion of Justice Ramaswamy, the units of the federation had no roots in the past and hence the Constitution does not provide mechanisms to uphold the territorial integrity of the States above the powers of the Parliament. The end sought to be achieved by the Constitution makers was to place the whole country under the control of a unified Central Government, while the States were allowed to exercise their sovereign powers within their legislative, executive and administrative powers. The essence of federalism lies in the distribution of powers between the Centre and the State. Justice Ramawamy declared the Indian structure as organic federalism, designed to suit the parliamentary form of Government and the diverse conditions prevailing in India. Justice Jeevan Reddy and Justice Agarwal opined that the expression federal or federal form of government has no fixed meaning. The Constitution is also distinct in character, a federation with a bias in favour of the Centre. But this factor does not reduce the States to mere appendages of the Centre. Within the sphere allotted to them the states are supreme.
Conclusion
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.
In a subsequent case 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.
In the basic structure thesis case Keshavananda Bharti V. State of Kerala some of the judges in the full Constitutional Bench expressed federalism as one of the basic features of the Indian Constitution. In another case Justice Bhagwati, described Indian Constitution as a federal or quasi- federal Constitution. In Sat Pal V. State of Punjab, the Supreme Court again held that Ours is a Constitution where there is a combination of federal structure with unitary features.
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.
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.
In an attempt to assert their independence the States have, at various points of time tried to flout the Centre's orders. An example was the disobedience of Karnataka to confirm to the Centre's directives regarding release of water to Tamil Nadu. Such actions have generated wide spread opposition from interested parties. A similar situation arose when Punjab Termination of Agreements Bill, 2004, was flouted by the State of Punjab recently. The unilateral termination of a tripartite agreement raised a controversy in which the authority of the State to commit such an act is being questioned. Annulling the very basis on which the Supreme Court had pressured the State to implement the river water-sharing agreement of 1981, the Bill has created an unprecedented Constitutional crisis.
In a response to the increasing number of water disputes the United Progressive Alliance Government has proposed to set up two Commissions to look into the Centre- State relations, including river water- sharing, and to examine administrative reforms.
In the light of the past experiences of misuse of power certain amendments should be effected which will strengthen the federal nature of our Constitution. Firstly, there should be devolution of more financial resources and powers on the States so that they do not have to depend on the Centre for financial assistance. Secondly number of statutory grants to which the States are entitled should increase. Thirdly, the States should also be given greater autonomy to undertake developmental programmes. Lastly, there should be some inbuilt safeguards against the blatant misuse of Article 356 by successive central Governments.
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.
The author can be reached at: shubhangi.pathak@legalserviceindia.com / Print This Article
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