The constitutional interpretations metamorphose a non-federal constitution into a federal one which results into a shift from reality to a myth. – this is the basic premise on which P.K. Tripathi puts forward his argument against Indian Federalism in his third sense. According to him, the judges make the presumption of federal character of the constitution which in case is not and then they set up a myth entirely divorced from and in deliberate defiance of, the reality of the constitution. This mythical sense of federalism is used by them as the major premise of their argument to change the reality. In State of West Bengal v. Union of India in 1963 the Supreme Court projected the traditional view of federalism and characterised the Indian Constitution as not being true to any traditional pattern of federation. P.K. Tripathi also agreed with the majority opinion of the judgment. Both Tripathi and this judgment agree with the fact that India is not a true federalism. The basis of their proposition is the static federalism concept which was prevalent during the formation of major Constitution of the world such as U.S., Australia and Canada. If we consider the proposition of Tripathi in light of present scenario, rather his conclusion will appear to be a myth because in practice federal idea is dynamic in nature.

If we see the development process of all the major federation of the world (U.S.A., Australia and Canada), it becomes clear that the classical concept of a federation envisaging two parallel governments of coordinate jurisdiction, operating in hermetic compartments is nowhere a functional reality now. There is no fixed, static or immutable format of a federal constitution. Each country adopts and moulds the federal idea to its peculiar circumstances, conditions and needs. In practice, the U.S. Constitution which is regarded as the epitome of the classical federation has shifted towards the organic federalism as stated by Sawer in his book Modern Federalism. In operation today, this constitution is very different from what it was in the past. The Canadian Constitution in the wake of the demise of the laisser faire era strived towards the empowerment of the central government. The Australian Constitution also which was characterized as a true federation, has in course of time undergone a significant metamorphosis and has moved towards centralization. Pharmaceutical Benefits case is an example in this context. It is thus evident that all the older federations have also exhibited centralising and centripetal tendencies and the constituent units do not enjoy a co-equal status with the Centre. The old orthodox theory of federalism propounded by WHEARE, does not accord with contemporary realities and is no longer tenable or viable.

During the last several decades, an inevitable trend the world over has been the strengthening of the Central Government. CARL J. FRIEDRICH also emphasizes on this aspect and states that the modern accent is on co-operation between the centre and the states rather than on the independence of the States. And for a successful working of such modern version of federalism centre should be in a position to provide leadership to the regional government, to co-ordinate their activities, to guide them and perhaps, on occasion to pressurize them to act in a particular direction if the national interests so demands. Opting for Federalism with a strong Centre was a necessity rather than the choice for the framers of the Indian Constitution. A new wave of modern federalism had already stroked classical federations like U.S. and Australia to swift towards strong centre. With these growing examples in mind the Constitution makers devised the Indian federation with a strong Union. The vision of the framers of the Constitution of India was not kindled by the ambition of making an epitome federal constitution but by that of making a constitution by encircling the present needs of We the people with the federation. The framers did not adopt a doctrinaire approach based on the out-moded concept of classical federalism but adopted a functional approach and devised a system in tune with the peculiar needs, traditions and aspiration of the Indian people. Indian Federalism is a sui generis system. In devising the federal system, the framers sought to ensure its vitality as well as its adaptability to the changing needs of a dynamic society.

Tripathi criticize the Indian federalism on the premise that the Centre can diminish the territory of a State by an ordinary majority in the Parliament. According to him as a matter of law this is a serious departure from the federal principle. Theoretically, this contention will hold its point but when we will compare this with the practice, this contention will lose its validity. It is true that under Article 2 and 3 of our Constitution, Parliament has the power to alter the existence of the states but in fact it is not the Parliament which does so. Our Constitutional history shows that it is the extra-constitutional agitation in the States which forces Parliament to re-draw boundaries, not its constitutional dominance on this issue. The best example to cite here is the division of State of Hyderabad just after 3 years after we adopted our Constitution due to the agitation posed by Telangana.

Tripathi then contends that what conclusively destroys any semblance of federalism is that the Union is empowered to legislate overridingly even on the subjects in the so-called State list. This can be done when an emergency has been declared by the President under article 352 of our constitution. His notion about federalism connotes a weak government wherein power distribution between the Centre and the state will override the issue nations security. If we look into war-time practises of the federal constitutions like U.S., Canada and Australia then we can clearly see that there has been a silent metamorphosis in these federations towards unitary, centralized and regimented federation. H.M. SHEERVAI also supports this assertion by stating that the power which is limited in the peace time expands in the time of the war. Wheare also points out the essence of federalism to be unitary at the time of emergencies. The Emergency provisions therefore do not dilute the principle of federalism. The point of discussion where Tripathis critic stands good is the abuse of this provision by the centre and this point does detract Indian Constitution from the principle of federal government. But after 44th amendment this point also has lost its credibility. So, proper check has been put on the usage of this provision under Indian Constitution.

Article 246 and 256 are also one of the major premises of objection by Tripathi on the issue of federalism. Subjection of State law to the Union laws made under List I and List III destroys the semblance of federalism in India. Even if we see the classical federalism of U.S., there also the constitutions of the states are subject to the federal constitution. (Article 4, s. 4) Even if we Australian Constitution generally, there is a tilt towards centre. Therefore, even in admittedly federal Constitutions, the general government has the power to ensure that the State constitution is worked as required by the Federal Constitution. If such a power didnt exist, federal government itself would be at the mercy of one or more states. H.M.SEERVAI says A power essential for the existence of federal government cannot be said to impair the federal principles. Constitutional history of article 355 itself insinuates the duty of state government to carry out its governance in accordance with the Constitution. In the U.S., it is consistent with the principle of federalism that a defiance of Federal law can be put down by the use of force over the state concerned. Our Constitution makers wanted to avoid such conflict and thus it empowered Central government to give direction to the States to give effect to the Union law. Such a power, though different from the classical federation, seeks to achieve the same objective and thus it is not derogative to the federal principle. The Centres control over State legislation is justified on the point of considerations of uniformity of law and uniformity of approach.

It is not true to hold a view that States have no say in the functional process of the country. Parliament has the power to re-organize the states but here also the States are to be consulted and further Indian being a Union of States, the States have to exist as component units. The existence of several inter-State boundary disputes proves that Parliament does not act unilaterally in such matters but only after consensus has been reached between the contending parties themselves.

In case of financial matters also, our Constitution does not compromise over the States autonomy. The states have proper say in respect of fund allocation by Planning Commission and National Development Council by the way of their proper representation. Under article 252, which introduces a kind of flexibility in the distribution of powers, the States come into picture as the Centre cant take over the State matter without their co-operation and initiative. It is only Article 249 which empowers the Centre to act unilaterally but this provision is too for an extremely short period and in national interest. If the theory that the Rajya Sabha represents the states is tenable, then even in this case, it can be said that the States consent is there, if not directly at least indirectly. Centre-State administrative relationship also depicts the dependency of Union on the States.

If we analyze all these provision in the light of recent developments in the other federation then we can conclude that what is explicitly stated in the Indian Constitution is found to be implicit in the practice of other federation which are regarded as the epitome of federations. Thus considering the whole of the constitutional process – not only the letter of the Constitution but the practices and conventions that have grown thereunder – the Indian Constitution can justifiably be called federal. In my opinion articulation of terms like quasi-federal , competitive federalism , co-operative federalism, etc is imparting an eclipse of vagueness over the concept of federalism. So the views expressed by Prof. Tripathi that the principles of Federalism has been watered down in our Constitution is not supported by an examination of its provision when compared with corresponding provisions in admittedly federal Constitutions.

Written by: Name of Author: Jitendra Soni About The Author: I Am The Student of B.B.A.Ll.B. 2nd Year Of KIIT Law School, Bhubaneswar (Orissa)