Author Name:   arnav.upes

The constitutional law consists both of legal in the strict sense and of usages , commonly called as conventions, which without being enacted are accepted as binding by all who are concerned in government...

Federalism in India

The constitutional law consists both of legal in the strict sense and of usages , commonly called as conventions, which without being enacted are accepted as binding by all who are concerned in government. Many rules and practices are not part of the law in the sense that there violation may lead to proceeding in a court of law.

Indian Constitution is aid to be a federal structure only because it is said that it has clear demarcation of boundaries between central & the state government similar to that of U.S. India having legislative and executive authority divided between the centre and the state.

Chief essentials for a constitution to be federal are:
1. Dispersion of powers between the center and the unit states forming federation among a number of co-ordinate bodies, controlled by constitution.
2. Rigidity – neither the center nor the state has power to amend the provision of constitution relating separation of powers.
3. A written constitution
4. Domination of the constitution – neither of center or state have power to nullify the constitution
5. An independent body and unprejudiced authority (Eg. Judiciary)

India is often also claimed to be non- federal in matter such as the Center can impinge upon the areas earmarked only for the states in some cases. Therefore, it infringes the principle of federalism as it makes the state hyponym to the center. Hence, it is also said to be in a unitary form of government too.

The phenomena of such unitary form of government arises only during the period of wars or emergency period.

A federal constitution establishes a duple polity with Union at the center and the States at the fringe, each dowered with autonomous powers to be exercised in the field assigned to them respectively by the constitution. Both are in a way co-ordinate to powers of each other.

In fact, the basic principle of federalism is that the legislative, executive and financial authority is divided between the centre and the states not by law passed by the center but the Constitution itself.

Indian Constitution also defines a counterpoise of powers between the Executive, Legislature and the Judiciary. If courts are deprived of the powers, the fundamental rights conferred on the people of the country will become just equal to a decoration and people as puppet in the hands of the sovereign. Thus, it will also lead to a system wayward to that of democracy and undermine its spirit. The bestowal of the right to spifflicate the identity of the Constitution twinned with provision that no Court of Law shall pronounce upon the validity of such wipeout and no limit to the amending powers. If the constitutional amendment cannot be pronounced to be invalid even if it destroys the basic structure of the Constitution, a law passed in pursuance of such will be beyond the pale of judicial review as it will receive the protection of Constitutional amendment thus made and no organ has power to overrule it.

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.

Article 13 of the Indian Constitution will then become a non-issue and could be easily neglected as even ordinary laws will escape the scrutiny of the courts on the ground that they are passed on the strength of the Constitutional Amendment which is not open to challenge. It was stated under a leading case decided by the Apex Court in the [Minerva Mills Ltd. & others V/s Union of India;AIR 1980 SC 1789].

In Pradeep Jain V. Union of India, the Apex Court expressed as 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 restated: 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.

In the Kesavananda Bharati vs. state of Kerala(1976) case, the Supreme Court ruled that all provisions of the constitution, including Fundamental Rights can be amended. However, the Parliament cannot alter the basic structure of the constitution like secularism, democracy, federalism, separation of powers. Often called the "Basic structure doctrine", this decision is widely regarded as an important part of Indian history.

In the 1978 Maneka Gandhi v. Union of India case, the Supreme Court extended the doctrine's importance as superior to any parliamentary legislation. According to the verdict, no act of parliament can be considered a law if it violated the basic structure of the constitution. This landmark guarantee of Fundamental Rights was regarded as a unique example of judicial independence in preserving the sanctity of Fundamental Rights. The Fundamental Rights can only be altered by a constitutional amendment, hence their inclusion is a check not only on the executive branch, but also on the Parliament and state legislatures. The imposition of a state of emergency may lead to a temporary suspension of the rights conferred by Article 19 (including freedoms of speech, assembly and movement, etc.) to preserve national security and public order.

The Supreme Court is an independent authority to declare the Acts of the Union and States ultra-vires if either of them entrenches the defined powers of each other. Thus while in normal times our Constitution is federal, in emergency period it becomes unitary. Therefore, we can even call our Indian Constitution as semi-federal.

The  author can be reached at: joy.joy14@legalserviceindia.com

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