|
Introduction
The Constitution of India is not an end but a means to an end, not mere
democracy as a political project but a socio-juridical process which opens up
through a humanist, radical social order, the opportunity to unfold the full
personhood of every citizen. 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. 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-ŕ-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
/
