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The Rise And Fall of Federalism In India

It is very obvious that we cannot feel the pressure and excitement of the constitution-makers during its making but there are certain special features which clearly show the intention behind its drafting. Though, those features are not very clearly mentioned in the constitution but they are declared as the basic structures in many judicial pronouncements. With the passing time, those features have made a significant contribution to the evolution of the document and the nation too but due to their coexisting nature, this conflict never remained silent in the legal history of this nation.

Where on one hand, it denotes towards the fusion, on the other hand, it believes in the fission of the subjects. So, on one hand, their contradicting nature helps in evolving faster whereas on the other it became a bone of contention for Indian courts to decide whether we are purely federal or partial unitary. Here in this project, I will try to cover all aspects of features associated with these two.

From ancient times powers are sourced from one authority and today also, many countries follow this trend whereas some of them show little deviation from thIs and have come up with the new division theory known as federalism. Unitary governments are full of ‘may’s and ‘may not’s, but the federal governments are little sure about its features and follow a common pattern. Comparative analysis between them shows how the two different types of power are distinct from each other.

It is easy to trace the features of the federal government as compared to the unitary government because of certain characteristics like written and rigid constitution, supremacy of the Constitution, independent judiciary, and bicameral legislature but on the other side unitary does not come with fixed features for example in a unitary government constitution may be written (France ) or unwritten (britain), constitution can be supreme (japan ) or not (Britain ), The legislature may be bicameral (Britain) or unicameral (China).

However, their adaption by their nations is certainly not imposed but accepted according to its need. Furthermore, none of the both can be placed over the other as there are many examples from each side where they are functioning well.

But before getting into the deep analysis of these two first we have to understand the core nature of the two in our present constitution:

Unitary Features of Indian Constitution:

Strong Centre: There are many provisions in our present constitution that supports or clearly indicate towards strong government. A list of them can be detailed below:
  • More subjects are included in the union list.

  • Important subjects are inducted into union list.

  • Overriding authority of the centre over union list.

  • Lastly residuary powers are rests with the centre.

States Not Indestructible: States have no right of territorial integrity, and parliament has the power to change the geography of the state just by a simple majority.

Single constitution: This is another major unitary feature of the Indian constitution that the state doesn’t come with their own constitution and the presence of a single document to regulate the affairs of the state as well as union.

Flexibility of the constitution: The amendment procedure is not so rigid that makes it impossible to amend and the major provisions of the constitution can be amended unilaterally by parliament.

No equality of state representation: there are not any safeguards for smaller states, representation varies from 1 to 31 (according to population).

Emergency provisions: During an emergency, the Central government becomes all powerful and the states go into the total control of the Centre. It converts the federal structure into a unitary one without a formal amendment of the Constitution.

Single citizenship: apart from having a dual polity there is only a single citizenship i.e. Indian Citizenship and no separate state citizenship.
Integrated judiciary: unlike USA, There is only a single system of courts enforces both the Central laws as well as the state laws.
Veto Over State Bills: The President can withhold his assent to state bills not only in the first instance but also in the second instance. Thus, the President enjoys absolute veto (and not suspensive veto) over state bills.[1]

Federal Features of Indian Constitution:

Dual polity: Dual polity consisting of the Union at the Centre and the states at the Periphery. Each is endowed with sovereign powers to be exercised in the field assigned to them respectively by the Constitution.

Written constitution: written and lengthiest constitution of the world.

Division of powers: powers are divided into three lists i.e. union, state and concurrent. So the clear demarcation between their respective powers can be clearly seen.

Supremacy of constitution: constitution is regarded as the supreme document and no law can override the specific provision written in the constitution.

Rigid constitution: Provisions which are concerned with the federal structure (i.e., Centre–state relations and judicial organization) can be amended only by the joint action of the Central and state governments.

Independent judiciary: independent judiciary headed by the Supreme Court enjoys different kinds of jurisdictions.

Bicameralism: The Rajya Sabha represents the states of Indian Federation, while the Lok Sabha represents the people of India as a whole. [2]

What are we: Federal or Unitary?

The probability of being a unitary government was not possible at the time of the emergence of this independent nation so we shifted our approach to the federal nature. However the term federal clearly denotes towards the nation result of an agreement or treaty but this was totally discarded by the makers of our constitution as it is clearly mentioned in the article 1 of the Indian constitution that India is a ‘Union of States’. According to Dr B R Ambedkar, the phrase ‘Union of States’ has been preferred to ‘Federation of States’ to indicate two things:
  1. the Indian federation is not the result of an agreement among the states like the American federation; and

  2. the states have no right to secede from the federation. The federation is union because it is indestructible.[3]

But, in spite of having a federal structure this feature is nowhere expressly defined in the constitution so the validity of the federal feature can be traced from the judicial pronouncement only.

How we are treating the states today?

Whenever a discussion starts about Indian federalism which not purely federal (with a strong bias towards the Centre ) the question arises that if not giving them full confidence than what we are having for them ? and we have few examples which also raise the same question that how India is dealing with the cooperation between the centre and states.

Telangana issue (2014)

Whereas on one hand Indian supreme court designate constitution as a living tree. But the interpretation of some clauses does not imply the same. The Andhra Pradesh reorganization bill 2014 which could be remembered as a tussle between centre and states (the two branches of the living tree) rather than a reorganization bill. It also reflected towards the dying spirit of federalism in India. So the whole controversy revolves around the interpretation of Article 3 that simply talks about the process of reorganization of states. So what can be inferred from the article 3 is that the states only have a consultative right in respect to the organization of the state itself. In Babulal Parate vs state of Bombay [4], the Supreme Court also discarded the view that the will of the state should be considered as binding to the parliament.

The same was also reiterated in Pradeep Chaudhary vs UOI[5]. Whereas the current situation of this defeating federalism can be attributed to the fifth amendment 1955 but the later approaches by the Centre in usurping the state recognition or power has done more harm to the stability or the balance between the Centre and states.[6]

Whereas I am not in support of implementing state will in article 3 nor I am in support of any major amendment but all I have to say is that there should be a say of the state in this kind of legislations. and whereas on the one hand the honorable court make the word advise enforceable and mandatory in the cases of judicial appointments[7] so the similar consultation given in article 3 should also deserve the same recognition .[8]

Kashmir Issue (2019)

The abrogation article 370 which has been a source of special power for the whole state of Jammu and Kashmir was another example set by the union government to spoil the sanctity of the spirit of federalism. The state which has seen conflicts, riots and violence rather than enjoying the status of special state, lost its identity due to the center’s application of unitary power[9].

A distinction has to be made between mere addition and integration, the territorial integrity of the state should be respected and protected too. Article 370 was not only the part of the basic structure but it was also a part of federalism which is a basic structure of the constitution.[10]

Presidential rule: a unitary herb

As B.R. Ambedkar said in the constituent assembly that it does not matter whether the constitution is good or bad, it is ultimately depends on the people who have the power to enforce it. So the same could be inferred from the incidents like dissolution of the state governments[11] by janta party and the same situation was repeated during P.V Narsimha Rao reign where four state governments were dissolved by imposing president order, however the Supreme Court in S.R. Bommai v. Union of India[12]. Clearly stated that the power of the President to impose President’s Rule is not above and beyond judicial review entirely. Furthermore the Court also narrowed down the circumstances and the manner in which such powers could be exercised.

So whenever the government feels that it is losing control over the states, it starts trying to usurp the autonomy of the state by imposing president rule which clearly reflects towards the unitary intent of the Centre. So at many instances the feature of federalism does not supported by the union itself.

Unitary Elements of Federal Constitution:

Constitution makers have tried their best to make the Indian system federal, but the latter approaches of the governments have made all the efforts of the makers nugatory. However the constitution of India has created a balance between the Centre and states by making the statutory bodies impartial and federal but the Centre’s continuous efforts defy this whole stability, the modus operandi of planning commission reflects towards the same.

It was always argued that as they are not statutory bodies nor they are created by the combined efforts of Centre and states, shows unitary character and so the federal intent of the makers have been left behind. The expansion policy of the planning commission has totally defamed the federal structure of the country.[13] Although Indian constitution has already provided major share of power to the central government but the continuous efforts by the majoritarian governments in the name of unity and nationalism has made the indian federal structure ‘ an old building with no renovation’.

The recent change in the Indian federalism:

While working on this project, I found some articles dating back to 2012 which clearly indicates that how the political approach of the Centre can affect the basic structure. Whereas the seventh schedule has done its job fiercely well and no questions can be put on the importance of the seventh schedule in Indian context but the policy implementation mode in 2012 which how a strong regionalism can also harm the spirit of federalism some common examples are listed below:

West Bengal stands on Teesta water dispute: Bengal cleared its stand against government on teesta water treaty between India and Bangladesh as it was against the state interest.

Foreign policy exercised on the advice of state cm: in spite of giving the national interest a prior concern the government of India voted against its own stated policy just to appease a state CM.

It can be seen that so seven years ago, Centre was fighting with the populist imperatives of the state which gravely endangered the meaning of Indian federalism so where a coalition government failed to maintain a balance between this and inclined the centres rational approach to the regional conflicts avoiding the union concerns like foreign matters. But the demand of strong government gave us majoritarian governments and again things go out of hands.

Federalism: Fallback after 2014:

Comparing the manifesto of the current party (Bhartiya Janta Party) of 2014 and 2019 it can be clearly seen that in 2014 the BJP has emphasized on the issues of Centre state relationship and also on the cooperative federalism in india but the non-repeating of the same promises in 2019, indicate towards two things - either the government has restored the balance between the centre and states or now it they are no more interested in doing that. So whereas the first option cannot satisfy the claims of today’s scenario, we have to opt for the second one and which is a clear indication towards the losing hold of Indian federalism. [14]

On one hand, the makers of the constitution intended their idea of federalism on article 1 which indicates towards the idea of cooperative federalism and where some judicial pronouncements declare India as quasi federal, there are some legal opinions which represent india as quasi unitary.[15]

Different pleas were given by the jurist in order to save the true spirit of federalism as was Incorporated in the constitution but the kinds of federal conflicts like fiscal issues or Centre sponsored schemes does not cool off the anger of the state. The dissolution of niti aayog was also done in the name of strengthening federalism.

The establishment of niti aayog was seen as the embodiment of the spirit of cooperative federalism as it was stated by our honorable pm that states should have an equal say in the development of the country and a lot of reforms were also started by the team india" to foster the relationship between union and states but in the long run many of those decentralizing efforts results into more centralization.

The weak authority of Niti Aayog doesn't empower it to take great initiatives. Secondly the indian. Version of vat named as GST also results into the great fiscal centralisation.so the financial autonomy of states were snatched by the 101th amendment by the government.[16]

The CSS programs also used to empower the personality of the Prime minister sitting at the centre, even the flagship programmes like Pradhan Mantri Aawas Vikas Yojna clearly indicate towards the Centre’s contribution in the development, however the tussle which starts because who takes the credit does not find any solution till now. The other initiatives by our Centre government also defy the consultative culture of federalism. For example: in demonetization even the minister of the states was not consulted before taking of this one sided decision.[17]

May be the politicization of the initiatives can be one of the reasons not to consult or to not give credit to the state governments but the same should not be done in order to revive the true federalism in India.

Language of federalism:

In a country like India where 22 languages found its existence and in which 80% of people live in the territory which suited to their mother tongue so this kind of territorial concentration can only be managed with the federal concept. So the same is applied to India where most of the states specially the south ones are associated themselves with a specific language which was mostly spoken in their territory so freedom should be given to the states that they can manage their own affairs and communication in their mother tongue.

But today when people in majority demands Hindi as national language it clearly goes against the spirit of federalism and also the freedom of the state to remain uninfluenced by the majority culture. The attempt unification of nation goes against the diverse nature of the country. However many politicians of south region has pleaded the three language formula.[18]

RTI and Federalism:

Former Central Information Commissioner M Sridhar Acharyulu in an open letter to the three chief minister clearly raised his concern that how this RTI bill will manage to usurp the powers of the states and leads to the more centralized power than before. But the concern is that the same had done with the support of the regional parties like BJD and others. So in an open letter to the head and CM’s of these parties M Sridhar wrote I thought all three of you are eminent personalities sacrificed a lot in taking up the issues of the people, striving for the interests of the region you are representing and also the rights and sovereign powers of the States under Indian Constitution.

Please try to take assistance of your legal teams and find how your support to this bill will kill your sovereign powers at least now, which you should have done before supporting it. You have a duty to answer these questions, morally, legally (as Section 4(1)(c) of RTI Act mandates), constitutionally (Federal principles) and politically (as you have proclaimed that you would form a front and fight for the rights of the states, against the centralization of powers by the Union).[19]

Dr. Shashi Tharoor also pleaded that this present RTI amendment bill 2019 will be an assault on federalism. While explaining how this bill cause an assault on federalism he said that the governments is amending section 16 of the RTI act which now gives the power to the Centre to decide on the matters of the terms, services of the information commissioner at the stats clearly shows disregard of the government towards a cooperative federalism.[20]

How the judiciary defines federalism:

There were a lot of attempts have been made by the politicians , legal practitioners to present their aspects of federalism so the same attempt has also been made by the judiciary. So there are hundreds of cases where the court tried to define the nature of constitution. Some of the examples are listed below:

West Bengal case:

this was one of the first cases on federalism. However in this case court favored the Centre’s position and disregarded states opposition. And it was clearly stated by the court that although the Union and States in India derive powers from the same Constitution, the States would have no legal rights as against the overriding powers of the Union, because of a general theory of paramountcy or superiority of the Union.[21]

Rajasthan case:

[22] in this case the court held that In a sense, therefore, the Indian Union is federal. But, the extent of federalism in it is largely watered down by the needs of progress and development of a country which has to be nationally integrated… so the validity and importance of the federal structure during that time can be understood.

So the cases cited above were the examples where the court has interpreted the nature of the constitution in the unitary manner but later on there were many cases where the court has itself tried to uphold the state autonomy.

In State of Karnataka v. Union of India[23] the court held that The Indian Constitution is not federal in character but has been characterized as quasi-federal in nature. Even though the executive and legislative functions of the Centre and the States have been defined and distributed, there runs through it all a thread or rein in the hands of the Centre in both the fields.

And again it was propounded in the case which is the source of the basic structure theory i.e. the landmark case of Kesavananda Bharati v. State of Kerala[24], it was held that federalism is a part of the basic structure of the constitution which means it can’t be amended or removed.

S. R. Bommai Case[25]
There are only very few cases in india where you find different opinions of judges regarding the same thing.this case proved as a significant example of this scenario.where four judges opined different views on federalism. these are:
  1. Justice Ahmadi: Because of no mention of words like ‘federal’ he declared it to be a quasi-federal constitution.
  2. Justice Sawant & Kuldip Singh: Federalism is an essential feature of the constitution.
  3. Justice Ramaswamy: Declared India to be an Organic Federation designed to suit the needs of the parliament.
  4.  Justice Jeevan Reddy and Justice Agarwal: Federalism in the constitution has a different meaning in accordance with the context. This case posed restrictions on the arbitrary use of article 356.[26]

Conclusion
Our constitution is full of possibilities for new amendments and new theories. The kind of judgments that courts are delivering today show the modern approach towards the interpretation of the constitution. This can also be proven from the fact that today courts are overturning their own judgement and guidelines. But, in between all these chaos, the only things that have remained unchanged and, in the future too whose alteration is beyond the powers of the judiciary itself, are the fundamental features of the constitution and especially those who are a part of the basic structure doctrine.

Federalism is one of these features and the responsibility of its protection and conservation does not lie on the shoulders of state, but they are equally important for the centre too.

The balance between various features of the constitution is very necessary and it plays a crucial role in proper functioning of the society and any conflict between these should be resolved with harmony and peace.
The fact that the features of federalism look very ideal because if we deny them we can't fulfill the virtues of the makers of the constitution.

End-Notes:
  1. M. Laxmikanth, Indian Polity 13.2(McGraw Hill Education Pvt. Ltd., Chennai, 5th edn.)
  2. Federal and Unitary Features of Indian Constitution, available at: https://www.gktoday.in/gk/federal-and-unitary-features-of-indian-constitution/ (last updated on September 19, 2016).
  3. The Constitution of India, art. 1.
  4. AIR 1960 SC 51.
  5. TRANSFER CASE (CIVIL) NO.62 OF 2002 (Arising out of Writ Petition No.43094 of 2000).
  6. Sanjay Hegde, Never fight with Delhi, The Hindu, March 31, 2016 , available at: https://www.thehindu.com/opinion/lead/never-fight-with-delhi/article8414608.ece.
  7. The Constitution of India.
  8. The Constitution of India.
  9. The Constitution of India, art. 370.
  10. Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461.
  11. Sanjay Hegde, Never fight with Delhi, The Hindu, March 31, 2016 , available at:https://www.thehindu.com/opinion/lead/never-fight-with-delhi/article8414608.ece.
  12. 1994 AIR 1918.
  13. M.P. Jain, FEDERALISM IN INDIA, available at : https://www.jstor.org/stable/43950710?seq=1#page_scan_tab_contents (last visited on November 10, 2019).
  14. Indian Federalism Under Modi, from Theory to Practice, available at: https://www.institutmontaigne.org/en/blog/indian-federalism-under-modi-theory-practice( last modified on June 13, 2019).
  15. Justice Fali Nariman Delivers the 2nd Justice Verma Memorial Lecture Hosted by Jindal University, available at: https://www.prnewswire.com/in/news-releases/justice-fali-nariman-delivers-the-2nd-justice-vermamemorial-lecture-hosted-by-jindal-university-598169211.html (last visited on November 2, 2019).
  16. GST - Magical Federalism, available at: https://barandbench.com/gst-magical-federalism/ (last modified on June 27, 2019).
  17. Achievements in implementation of flagship schemes of Government of India, available at: https://fincomindia.nic.in/ShowPDFContent.aspx (last visited November 3, 2019).
  18. Solution to three languages formula lies in its better implementation: Shashi Tharoor, available at: ,indiatoday.in/india/story/solution-to-three-languages-formula-lies-in-its-better-implementation-shashi-tharoor-1540837-2019-06-02 (last updated on June 2, 2019).
  19. RTI amendment: Usurping powers from Legislature and States, available at: https://www.downtoearth.org.in/blog/governance/rti-amendment-usurping-powers-from-legislature-and-states-65955(last modified on August 2, 2019).
  20. Law and Policy, available at: https://www.bloombergquint.com/law-and-policy/government-wants-to-make-rti-a-toothless-tiger-says-shashi-tharoor?fbclid=IwAR2M7PZNFrxfxn7ehqk8E_Hwp-YyvBHGbiNboiGjdvah9ZYRz_qOgXX7e0Y (last visited on November 8, 2019)
  21. State of West Bengal v. Union of India, 1963 AIR 1241
  22. State of Rajasthan v. Union of India, 1977 AIR 1361
  23. 1978 AIR 68
  24. 1973 4 SCC 225
  25. 1994 AIR 1918
  26. Federalism in India – Analysis of the Indian Constitution, available at: https://blog.ipleaders.in/federalism-in-india/(last modified on August 29, 2018).

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