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Published : January 05, 2017 | Author : Shreyaa
Category : Miscellaneous | Total Views : 439 | Rating :

  
Shreyaa
BBA LLB, Symbiosis Law School, Pune
 

Quasi-Federal Nature of Indian Constitution

It has been the matter of debate among the scholars that whether the Constitution of India is completely federal or unitary in nature. But actually Indian constitution contains both features of a federal constitution and unitary constitution. But for the very clear picture of this conclusion first of all we have to know that what is the federal constitution and what is unitary constitution. What feature of Indian constitution makes it federal or what features makes it unitary.

In a federal set up there is a two tier of Government with well assigned powers and functions. The Central and the State governments work in coordination and at the same time act independently. The federal polity, in other words, provides a constitutional device for bringing unity in diversity and for the achievement of common national goals.

Prevention as well as amelioration of conflict of the interests of the Centre and the States is an integral part of federalism. This is the reason why the Indian federalism was devised with a strong Centre. The Constitution of India has adopted federal features; though it does not, in fact, claim that it establishes a federation. The question whether the Indian Constitution could be called a federal constitution troubled the minds of the members of the Constituent Assembly. This question cannot be answered without going into the meaning of federalism and the essential features that are evident in federal state.

Federal Features of the Indian Constitution

Constitution is suprema lex. Constitution is the supreme law of land in India, law wherein involves rules, regulations, bylaws, notifications, orders, ordinances and even the customs having a force of law. A federal state derives its existence from the Constitution. Every type of power; be it legislative, administrative or judicial, irrespective of it being at the centre or the state level is controlled by and subordinated to, the Constitution. Article 13(2) states that the State shall not make any law which takes away or abridges any of the rights guaranteed under Part III of the Constitution and to the extent of such contravention, the law being void. Therefore, though in India, the Constitution is considered as supreme but the principle of supremacy of the Constitution is not something to practice or abide by only in theory.

Our Constitution contains an inspiring Preamble reflecting the hopes and aspirations of the Indian people, a chapter on Directive Principles of State Policy, indicating the manner in which the people’s objectives can be attained by legislative action, with due respect for Fundamental Rights of the citizens, the enforcement of which should only be suspended under compelling necessities. A democratic system such as ours, depends for its success upon a government under the Constitution in accordance with the letter and spirit of the Constitution and as expressed in the laws which must prevail amongst the law abiding people and be enforced, in cases of their infringement by courts armed with adequate power and authority and given the respect due to those through whom the Constitution and the laws speak. This in practice would be the true meaning of the ‘Supremacy of the Constitution’.

Federal system cannot exist without a written constitution. UK does not have a written constitution and so it is not a federal country. The States in a federal setup, come together and enter into a treaty and the terms of the treaty are required to be reduced into writing in the form of a written constitution. There is no denying fact that a written Constitution rings stability in the overall governance of the country. If there were no written Constitution defining the scope of the powers of Centre and the States, there will be chaos, misunderstandings and conflicts between the Centre and the States who would seek to cross over each other’s line of authority.

Ours being a rigid Constitution, it cannot be amended by the national legislature unilaterally without the participation of the states. In United States, which is a perfect example of classical federalism, no part of the constitution can be amended without the ratification of at least 3/4th of the individual States. Another example, in Switzerland, no amendment can be brought into force unless it is ratified by a popular vote i.e. referendum as took place recently when the Switzerland decided to hold a referendum to separate from the Britain and people voted NO. Also, in Germany, the states do have a play in the amendment of the constitution but even the German parliament cannot amend so far as the federal features are concerned like division of federation into States or the participation of the States in making amendments in the legislature, these features are exclusively made unamendable because Germany is also a federal country. The examples justify that a rigid constitution is a primary feature of any federal form of government and the same has been incorporated in India too. In India, federal provisions i.e. the provisions which deal with the centre-state relations cannot be amended without it being ratified by at least ½ of the states. For example – When the 121st Constitution Amendment which created the National Judicial Appointment Commission (NJAC) was passed by both the houses of the Parliament with 2/3rd (special) majority, it was subsequently sent to the states for ratification after 16 states approved the amendment, it was finally sent to the President for his assent. But before the amendment could become fully effective, it was declared to be unconstitutional by the SC as it violated the independence of judiciary as a basic structure in the Supreme Advocates on Record Association & Anr. V Union of India, also known as the 4th Judge’s Case. Another example is that of Kihoto Hollohan vs Zachilhu & Ors where the court invalidated insertion of Para 7 in the 10th Schedule by way of 52nd Constitutional Amendment because Para 7 affected the jurisdiction of state high courts and the amendment was passed simply by both the houses of the parliament and was not sent for the approval of the states, so there was a procedural ultra vires and the SC declared the 52nd Amendment and the 10th Schedule to be unconstitutional to this extent as void. Doctrine of Severability was applied and only Para 7 was severed and remaining were held to be valid.

Division of governmental powers into national and regional governments by the way of 3 lists – the Union, State and the Concurrent lists is provided in the 7th Schedule to the Constitution. Only the Centre deals with the issues mentioned in the Union List, States on the areas mentioned in the State List while the Concurrent List contains areas where both the Center and the State can legislate. This concept of 3 Lists has been adopted from the Canadian Constitution. However, there are certain powers which do not find mention in any of the three lists. These are called residuary powers and lie primarily with the Centre as per Entry 97 of Article 248. The rationale behind the residual power is to enable Parliament to legislate on any subject which is not recognizable at present. Thus, the principle of division of powers which this concept imbibes highlights the federal structure of the Indian Constitution.

Independent Tribunal which is authorized to resolve disputes between the Centre and the States. As regards India, Supreme Court is the federal tribunal which can dissolve all the disputes between the Centre and the States under Article 131 except the Inter – State Water Disputes for which the parliament is supposed to create an ad-hoc Tribunal to resolve a specific water dispute between 2 states, such as the Kauveri Water Disputes Tribunal which is handling the water dispute between Kerala, Karnataka and Tamil Nadu. This power given to the Central Government to create a separate tribunal is a small but significant unitary feature. Currently there is a Bedgaon Border dispute case pending in SC. It is between Maharashtra and Karnataka wherein Maharashtra claims that the majority of the people in that region are Marathi speaking so the region belongs to Maharashtra while the Karnataka’s stand is otherwise. Thus, an independent judicial court is an essential federal feature of the Constitution.

Unitary Features of Indian Constitution

Indian Constitution lays down a dual polity where the Central Government is neither merely the league of States and the States nor the States are the administrative units or agencies of the Central Government because they have their own Constitutional identity. However, there are some strong centralizing tendencies present in the Indian Constitution which confer maximum power to the Central Government. There are historical reasons for this centralization – when the Constitution was made, it was made at the time of partition of the India, so the framers thought that if the Central government was not strong, then India would get fragmented. The Philadelphia Convention which gave rise to the formation of the US Constitution also mentioned the expression Union, which was deliberately mentioned there in order to make it a more perfect Union. Maybe the intention of the Constituent Assembly behind adding the expression Union was that they wanted to give an impression that it was an indestructible Union. They must have feared the Balkanization of the Indian Union. The policy thus adopted by the Constitutient Assembly was to have an inbuilt bias in the favor of Centralization i.e. a unitary in spirit.

A typical unitary system is governed constitutionally as one single unit, with one constitutionally created legislature. All power is top down. A unitary state is a sovereign state governed as one single unit in which the central government is supreme and any administrative divisions (sub national units) exercise only powers that the central government chooses to delegate. These are some unitary features also present in the Indian Constitution which make it ultimately Quasi-Federal in nature –

Article 1 which provides that India i.e. Bharat, shall be a Union of States. It is to be pondered here that the use of the word ‘Union’ was deliberate or not. Because the word ‘Federation’ is nowhere to been mentioned in the Constitution. It was there in the draft Constitution but was subsequently dropped and it was deliberate omission on the part of the drafting committee. The Chairman Dr. Ambedkar, justified this deletion by saying that the addition of the word Federation was not done after the ratification of the States.

Article 2 and 3 of the Constitution, give the power to the Parliament to redraw the political map of India; to create and abolish the states, change the boundaries of the States or even change their names and this can be achieved by simple legislation by way of simple majority in the Parliament and the Constitution only provides for consultation by the Centre of the concerned State. For eg – when Andhra Pradesh was divided recently into Telangana, Andhra Pradesh Assembly had passed a resolution opposing the step irrespective of that the Central Government went on with the separation. So, what the provision provides is consultation of the State Assemblies and not concurrence and the President can only prescribe a time frame within which the State Assembly has to take a call on the proposal of separation of the State or to merge 2 or more State. Also are the examples of Uttarakhand, Jharkhand and Chattisgarh. In 2007 also, the name of Uttranchal was changed to Uttarakhand. And this was achieved without amending the Constitution. So, the Central government has upper hand so far as the creation or abolition of the States concerned.

Appointment of the Governors of various States is done by the Centre. Governor is the constitutional head of the State and at the same time he is also the representative of the Centre. Central government is duty bound under Article 355 to ensure that there is no failure of constitutional machinery in the State and the states are protected from internal disturbance and external aggression and war. So, in order to enforce that duty, the Central government has power under Article 356 to impose Presidential rule and it is the duty of the governor who has to make a report to the Centre about the failure of constitutional machinery of the State for political or any other reasons. Governor unlike President enjoys some discretionary powers i.e. he can withhold a bill for the consideration of the President. Governor is supposed to be apolitical but is ironically removed on political grounds. The Sarkaria Commission which studied the Centre-State Relations made certain recommendations because there was no effective consultation with the central government with the Chief Ministers of the States when the Governors are appointed, so it was recommended that the Governors should be some eminent person from some walk of life.

In Rameshwar Prasad v Union of India, popularly known as Bihar Assembly Dissolution Case where SC raised questions as to the impartiality of the Governor Bhuta Singh because there was a President’s Rule imposed in Bihar after the elections because no political party was in the position to form the government but when there was a possibility of formation of government led by JDU led by Nitish Kumar, the Governor sent a report to the Centre that the Assembly should be dissolved. The centre did not apply its mind to the recommendation and it was hurriedly accepted and the Assembly was declared as dissolved the very other day and the SC said that the Governor did not act as per his duties. So, the Governor is not supposed to be an agent of the ruling party in the Centre. SC declared the dissolution of the Assembly as unconstitutional.

In B.P. Singhal v Union of India, SC held that a Governor cannot be removed by the Central government on the grounds that he is not in sync with the policies of the Central government or the ideology of ruling party. This cannot be the reason behind the Central government to sack the Governor and would be considered as arbitrary or mala fide.

Thus, this power to appoint Governors who would be the head of the respective States, is an important unitary feature of the Indian Constitution.

The Constitution of India has established a Single and Uniform Citizenship for the whole of the country. In a federal State like the United States of America there is dual citizenship where a citizen firstly owes allegiance to the States and secondly to the union. But in case of India though it is a Federal State there is single citizenship. It implies that all Indian citizens owe allegiance to the Indian Union. Any citizen, irrespective of his birth or residence, is entitled to enjoy civil and political rights throughout India in all States and Union Territories. The Indian Constitution does not recognize State citizenship and as such there is no distinction between the citizens of two or more States, the only exception being the State of Jammu and Kashmir. No one other than a permanent resident of Kashmir can acquire landed property in Kashmir; but it is a purely temporary provision to be abolished when Kashmir is fully integrated to the Indian Union. The claim of Fundamental Rights is common to all citizens.

In India we have Unified Judiciary with the Supreme Court at the apex as opposed to the federal system having a dual system of courts. The Supreme Court occupies the highest place in our unitary judicial system. Attempt has been made, as far as possible, to ensure its independence and achieve the goal of ensuring justice. By virtue of its place at the apex of the judicial pyramid, the Supreme Court acts as a great unifying force. We have seen that its decisions and verdicts are binding on any court in India. As a result, there is a good possibility of integration, consistency and cohesion in the entire judicial system of the country.

Appointment on Key Positions such as the Chief Election Commissioner, the Comptroller and Auditor General are made by the Union Government and All India Services such as IAS and IPS have been created which are kept under the control of the Union.

Representation in the Legislature, which is equal in case of a true federation such as United States, is not applicable in case of Indian States. States in India have unequal representation in the Rajya Sabha. Representation of States in Rajya Sabha is not equal. According to Schedule 4, the representation of the States ranges from 2 to 31. The largest representation is that of UP i.e. 31 whereas many North-Eastern States have only one representation. The members of the Rajya Sabha are elected by the provincial/State legislatures. Even the value of the vote casted by the members in the Presidential Elections changes from State to State and is based on the population. The representation of the States in Rajya Sabha is not equal and depends from State to State, regulated by the Centre which is basically a unitary feature.

Entry IIA in List 1 inserted by the 42nd Amendment, 1976 calls for deployment of the armed forces of the Union in the aid of the civil powers of the State. Under the Armed Forces Special Powers Act (AFSPA) which is currently active in the states of Manipur and Jammu and Kashmir, when the Centre declares a specified area as a ‘disturbed area’, then martial law can be declared in that area, so the members of the armed forces of the Union can be deployed in aid of the civil power without the consent of the State. The Armed forces can fire upon and use force even to the extent of causing death, if there is a breach of prohibitory order. The actions of the armed forces of the Union are completely indemnified i.e. no suit or criminal proceeding can be filed against the armed forces without the prior sanction of the Central Government. For example, in the aftermath of the infamous Manorama Rape Case by the Assam Rifles, the elderly women of Assam had staged a naked march in front of the headquarters of the Assam Rifles and they were holding placards saying ‘Indian Army Rape Us’. This is an example how the power can be misused in the name of welfare.

The Centre has the power to make laws under the State List under in certain cases. Under Article 249 which says that if Rajya Sabha passes a resolution with 2/3rd majority that the Parliament should make law with respect to a particular entry in List II with respect to a particular State. Then the Parliament makes law and that law remains in force for 1 and 1/2 years i.e. the law will cease to have affect 6 months after the resolution comes to an end because the resolution remains in force for 1 year. The Centre can also make law if there is a request or consent by 2 or 3 States and such law can be subsequently adopted by other States.When the national emergency is declared, the Central government the Union Parliament gets concurrent legislative power to make certain laws under List II and if there is a conflict between the two, the central law prevails.

Under Article 356, if the President is satisfied that the government of the State cannot be carried out in accordance with the provisions with the provisions of the Constitution, the proclamation can be made and once such proclamation is made, the State government can be either dismissed or the Assembly can be kept in suspended animation. Although during the formation of the Constitution, the Chairman of the Drafting Committee, Dr. Ambedkar said that power vested under Article 356 would rarely be used. But this was not the case. Until the Supreme Court judgment of S.R. Bommai v Union of India, the power under Article 356 had been invoked 90 times. Supreme Court in this case restored the federalism by saying that if the decision is mala fide, then the court can reinstate the government dismissed or if the Assembly is dissolved, the court can revive and restore the dissolved Assembly. Now SC has said that once the president rule is imposed, the Assembly should be immediately dissolved. It should be kept in suspended animation until the proclamation is approved by both the houses of the parliament. Both Article 352 and 356 have been borrowed from the Weimer Constitution of Germany.

Residuary Power i.e. the power to legislate on the areas which do not find mention in any of the three lists under Schedule 7 lies with the Centre. For example, the laws like POTA, TADA which are now included in the Unlawful Activities (Prevention) Act, National Investigation Agency Act under which NIA was set up on the lines of FBI in US, to investigate federal crimes like terrorism is a trans-border phenomenon, so although public order is a state entry, terrorism is a problem which has a magnitude beyond public order, it concerns more with the security of India. When the Lokpal Bill was passed by the Parliament, the States opposed, they said that in one legislation you cannot provide both Lokpal and Lokayukta so now the Lokayukta part is removed and there is one provision which states that the States are supposed to make Lokayuktas within 2 years of passage of this Bill because Central Legislation creating Lokayuktas for the States would not have been consistent with the federal policy.

In past, several states have demanded that the residuary powers, including those of taxation should be vested with the States. In the defense of this demand, the Centre has time and again pointed to a strong unitary bias of the country’s federal structure. The Sarkaria Commission, which submitted its report in 1988 also justified the transfer of the residuary powers to the Concurrent List because it felt, the exercise of such powers by the States would ultimately be subject to the rules of the Union Supremacy which would be in consonance with the Unitary spirit of the Indian Constitution, particularly Articles 256 and 254.

CONCLUSION
“It doesn’t really matter whether the Constitution is in consonance with the textbook rules of federalism as long as it serves the purpose” that is what Supreme Court said in Kuldip Nair v Union of India, in that case the issue was that in Rajya Sabha elections earlier there was a domicile requirement which was removed by an amendment in 2003 and then it was argued that the amendment violated federal spirit. SC said that a particular kind of federalism or a US type of model may not be part of the basic structure of Indian Constitution. The Indian Federalism is unique in nature and is tailored according to the specific needs of the country. Federalism is a basic feature of the Constitution of India in which the Union of India is permanent and indestructible.

According to KC Wheare, in practice, the Constitution of India is quasi-federal in nature and not strictly federal. In words of D.D. Basu, the Constitution of India is neither purely federal nor unitary, but it is a combination of both. Throughout the Constitution, emphasis is laid on the fact that India is a single united nation. India is described as a Union of States constituted into sovereign, secular, socialist and democratic republic. In State of West Bengal v Union of India, the apex court held that decentralization of authority in India was primarily to facilitate smooth governance of a large nation and therefore, it contains many centralizing features also. Indian Constitution is not a ‘traditional federal constitution.’ In S.R. Bommai v Union of India, Justice Ahmadi opined that the essence of federation is the existence of distribution of power between the Union and the States. However, the absence of the terms ‘federal’ or ‘federation’ and the presence of unitary features such as residuary powers, single citizenship, integrated judiciary, etc can help us conclude that the Constitution of India is more ‘quasi federal’ than ‘federal’ or ‘unitary’. Similar was held in the case of Sat Pal v State of Punjab.

The Chairman of Drafting Committee, Dr. Ambedkar had thus rightly said that, “Our Constitution would be both unitary as well as federal according to the requirements of time and circumstances”. The Drafting Committee wanted to clarify that though India was a federation, it was not the result of any voluntary agreement between the States. Though the country is divided into many States, it is basically for administrative purposes which do not in any way affect its functioning as an integrated unit.

Finally, on a careful analysis of the federal and unitary features of the constitution, this aspect is not hard to miss that in every federal feature, there was an ultimate centralizing force which is existing. Therefore, it would not be wrong to conclude that the Constitution of India is federal in structure and unitary in spirit i.e. it is quasi- federal in nature.

End-Notes
# Dhavan, R. and Jacob, A., (2015) Indian Constitution: Trends and Issues.
# https://en.wikipedia.org/wiki/Basic_Law_for_the_Federal_Republic_of_Germany
# Writ Petition (civil) no. 13 of 2015.
# Krishnadas Rajagopal, SC Bench Strikes Down NJAC Act As ‘unconstitutional and Void’ , The Hindu, May 23, 2016 at , http://www.thehindu.com/news/national/supreme-court-verdict-on-njac-and-collegium-system/article7769266.ece.
# 1992 SCR (1) 686, 1992 SCC Supl. (2) 651
# Cauvery Water Dispute: All You Need to Know, The Indian Express, Sept. 7, 2016 at, http://indianexpress.com/article/india/india-news-india/cauvery-water-dispute-all-you-need-to-know-karnataka-tamil-nadu-3016736/.
# Harshad Mane, What They Are Fighting For? the Maharashtra-Belgaum Border Dispute, Prabodhak for Mumbai.in, Dec. 21, 2015 at , http://www.prabodhakformumbai.in/maharashtra-belgaum-border-dispute/.
# http://appscgroup.blogspot.in/2014/05/unitary-features-federal-features-indian-constitution-differences-advantages-disadvantages-upsc-ias-appsc-cbse-icse-syllabus.html
# https://www.instamojo.com/tejucs357/bifurcation-of-andhra-pradesh-pdf-loss-of-ca/
# (1994) 3 SCC 1
# 1977 (4) SCC 608
# The Evidence Is Mounting , The Hindu, June 13, 2016 at , http://www.thehindu.com/opinion/editorial/the-evidence-is-mounting/article4941923.ece.
# [1994] 2 SCR 644 : AIR 1994 SC 1918 : (1994)3 SCC1
# AIR 2006 SC 3127
# AIR 1963 SC 1241
# Supra note 14.
# 1995 SCC Supl. (4) 1 1995 SCALE (6)86

 




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