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Quasi - Federal Nature of Indian Constitution

India was created on the momentous day of 15th August 1947 and since then, there have been numerous thoughts on the nature of the Indian Constitution.

The makers of Indian constitution have carefully handpicked the provisions and drafted the present - day testament to the chef-d'oeuvre that is the Constitution of India. The Indian Constitution has been opined to be unitary by some while it has been articulated to be federal by the others. India’s constitution is of the federal type. It is a member of the family of federations, of which the better-known members are the U.S.A., Canada and Australia.

The Indian Federalism has been devised after a close and meticulous study of the contemporary trends in these federations.[1]The Indian Federal scheme while incorporating the advantages of a federal structure, yet seeks to alleviate some of its customary weaknesses of rigidity and legalism. It does not therefore follow strictly the conservative or traditional federal pattern. This nature of the Indian system and federalism have been studied comprehensively and demonstrated below.

Federalism: A Universal View
Prior to scrutinizing the nature of the Indian constitution, it is exceedingly essential to appreciate the meaning and quintessence of Federalism.

Federalism is one of the most significant factors of modern constitutionalism. It is established all over the world perhaps, as the only form of political organization suited to communities with diversified pattern of objectives, interests and traditions, who seek to join together in the pursuit of common objectives and interests and the cultivation of common tradition.

The basic objective of federalism is unity in diversity, devolution in authority and decentralization in administration. The basic condition of federalism is plurality; its fundamental tendency is harmonization and its regulative principle is solidarity.[2]

According to Daniel J. Elazara, - Federal system provides a so as to allow each to maintain its fundamental political integrity[3].

Federalism or Federal Structure is a complex governmental mechanism of a country which seeks to establish a balance between the forces working in favour of concentration of power in the centre and those urging a disposal of it in a number of units[4]. A federation is a political contrivance to reconcile national unity with state rights. Its originality lies in the fact that power at once is, concentrated as well as divided[5].

K.C. Whearedefines 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.

Federalism usually comes about by a contract or constitution between the territorial governments to unite and form, in specified areas, a central set of laws, such as to represent all internationally, and in national legislation re criminal and commercial laws. It is essentially a composite polity consisting of a national or central government administering subjects of national interest and a multitude of sub machinery of governments of the component units of federation called the state or provincial governments.

Any citizen of a federal country thus becomes a subject to the decrees of two governments- A central machinery and a State machinery. 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[6]. These sub components administer subjects of local interest. However, there are some subjects which are of common interest to both the centre and the states.

These are generally compiled to form a concurrent set governed by both the Centre and the Sub – machinery. The federal polity, in other words, provides a constitutional device for bringing unity in diversity and for the achievement of common national goals[7].

Features of a Federal Constitution:
A Federation or a Federal structure of Constitution has definite prominent features. They are:
1.Dual Polity: The crux, pivotal point of a federal constitution is division of powers between the centre and the states. There is a supreme government at the centre and there is also a provision to establish independent body at the state level. The whole structure of the federal system continues to revolve around this central point[8].

2.Supremacy of the Constitution: Federal Constitutions follow the principle of Suprema Lex, that is, Supremacy of the Constitution.The States’ existence and its powers are derived from the Constitution. All laws enacted both at the Centre and the State level ought to be in line with the Constitutional scheme.

3.Written Constitution: A Federal nation cannot exist without a written Constitution. A written constitution is mandatory. Examples of federal nations with written constitution are: USA, Canada, India and Australia. It is also to be noticed that a unitary state can exist without a written constitution but not a federal state. Eg: United Kingdom.

4.Rigid Constitution: Rigidity in amendment is a distinctive feature of a federal constitution. For example, In Switzerland, a Referendum is necessary for any amendment to the Constitution. In Sweden, if the Constitution is amended, an intervening election is conducted. Therefore, Rigidity is an inherent feature.

5.Sovereignty of the amending body:
Both the centre and the state governments derive their powers from the constitution. Therefore, the sovereign power rests with the body that can amend the constitution.

As the features of a Federal State have been established above, connecting the same with the Indian constitution to examine Federalism in India is necessary.

Nature of the Indian Constitution: Federal or Quasi-federal?
“The Indian federation is an example of co-operative federalism. India has created a strong central government; it has not made the state government weak”. - Granville Austin

The Preamble of the Indian Constitution reads as follows:
“WE, THE PEOPLE OF INDIA, having solemnly
resolved to constitute India into a
SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and
to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and
worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual
and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY, this twenty sixth day of November, 1949, do HEREBY ADOPT,
ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.”[9]

As can be seen from above, the preamble does not mention India as a Federal state. No article in the Indian constitution describes India as a Federal state and there is no mention of the word federal. The Constitution seeks and defines India to be ‘Union of States’ with a federal structure. Although the term ‘federal’ does not appear in the Constitution, it often arose in Constituent Assembly debates[10].

The passing of India Independence Act and the subsequent partition of India made the Constituent Assembly to take up a more unitary version of federalism. Mahatma Gandhi also favoured the decentralized structure and preferred a panchayat or village based federation. On the other hand, the then Prime Minister Jawaharlal Nehru and Dr B.R. Ambedkar were in favour of a unitary system of governance while the Home Minister Sardar Vallabhai Patel also stood for the idea of federalism.

India has all the aforementioned qualities of a federal state. Infact, in the Indian Constitution there is also a provision for the distribution of subjects between the Centre and the states in the form of lists. Under the constitution, there is a three-fold distribution of legislative powers between the Union and the states, made by the three Lists in the seventh schedule of the constitution[11].

Through these lists, the Indian Constitution seeks to create three functional areas:
1. An exclusive area for the centre
2. An exclusive area for the states
3. A common or concurrent area in which both the Centre and the States may operate simultaneously, subject to the overall supremacy of the centre.
Allocation of subjects to the lists is not by way of scientific or logical definition but by way of a mere enumeration of broad categories. The power to tax cannot be deducted from a general legislative entry as an ancillary power.[12]

The Union list has 99 entries. It includes Defence, Preventive Detention, Foreign affairs Transportation and Communications Properties of the Union, Financial Powers, Economic Powers, Cultural and Educational Functions, Union Services, Elections, Parliamentary Affairs, Judicial Powers, Miscellaneous Entries and Residuary Entry.

The State List covers, Law and order, Justice, Health, Local government, Relief to the Disabled, Libraries, Communications, Land and agriculture, Trade, Commerce and Industry, State Property, Intoxicants, Entertainments, Elections and Legislative privileges, State Public Services, Finance and Taxation, Miscellaneous such as pilgrimages. Etc.

The concurrent List covers Basic Laws in the country, Public Welfare, Forests, Labour, Education, Economic Power and Planning, Communications, Miscellaneous provisions including professions, newspapers etc.

India has a political and constitutional structure where federal features are evident. There is sharing of power between the Centre and the States but the Constitution provides Central Government with supreme powers and concentrates administrative and financial powers completely in its hands.[13]

Former Chief Justice Beg, called the Constitution of India as ‘amphibian’. He said that “…. If then our Constitution creates a Central Government which is amphibian, in the sense that it can move either on the federal or on the unitary plane, according to the needs of the situation and circumstances of a case…”[14] It has also been called Pragmatic Constitution in the words of Justice Ahmadi.[15]The phrase ‘semi-federal’ was used for India in State of Haryana v. State of Punjab, whereas in Shamsher Singh v. State of Punjab, the constitution was called ‘more unitary than federal.’[16]

Common Citizenship:
The citizens in a quasi- federal state enjoy a common or a single citizenship. They do not have two citizenships, that is, one for the state and one for the country. Indians have only one citizenship unlike the citizens of the United States of America.

Armed Forces:
The Armed Forces can be deployed in the States at the Centre’s will without the consultation of the State Government. This amounts to a centralised system of government sometimes creating internal disturbances. Eg: AFSPA – Armed Forces Special Powers Act.

Power to make Laws:
Article 249 gives the Parliament the power to make laws under the State list. Such law can also be legislated at a special request of a group of states. Also during President’s Rule in a state all the bills pending in the dissolved and the State Legislature is moved to the Parliament which makes a decision to make the bill into a law or not. When President’s Rule was imposed in Uttarakhand, the Financial Bill seeking funds from the Centre was pending in the State Legislature. This was later moved to the Parliament which sanctioned only 40% of the amount sought. This power of Parliament to make laws under the State List or during President’s Rule makes the Indian Constitution quasi- federal.

Emergency:
Only the Centre has the power to impose emergency under Articles 352, 356 and 360. Emergency under Article 352 can be imposed only when the nation is threatened by external aggression or armed rebellion. Such an emergency was imposed in the 1970’s during Indira Gandhi’s tenure as Prime Minister.Emergency proclaimed due to failure of Constitutional Machinery in the State under Article 356 has been the most controversial provision due to the abuse of power by the Centre. Surprisingly, prior to the S.R. Bommai case, President’s Rule had been imposed 90 times. It is only in S.R. Bommai v. Union of India[17] that the Supreme Court cracked the whip and laid down guidelines for the implementation of Article 356.

Residuary Powers:
The power which allows the Centre to make laws on subjects not mentioned in List II and III is known as Residuary Powers. This is enjoyed by the Centre only. Laws of investigative agencies not mentioned in any of the lists empower the Parliament to frame laws on the same by virtue of Article 248.

Single Integrated Courts:
A federal state generally has two distinct lines of courts, that is, one apex court within the state and the other apex court at the Center. They can also form different laws and change legislation in each state. In the instance of the USA, it has Federal Courts and State Courts. The Federal Courts have jurisdiction only to deal with Congress formulated Legislation and similarly State Courts for state made laws. Death penalty is illegal in some states while it is not illegal in some states. Same is the case with legalization of Gay marriages.

Comparison of Indian Constitution with the other Federations of the World:
There are marked differences between the American federation (which is the classical federal model) and the Indian federation.

First, in America, there is a dual citizenship, whereas, in India, there is only one citizenship. Indian citizens, wherever they reside, are equal in the eyes of Law.

Secondly, the states in America, have a right to make their own constitutions, whereas no such power has been given to the states in India.

Thirdly, the Indian constitution exhibits a centralising tendency in several of its provisions, e.g., adoption of a lengthy concurrent list, the power of parliament to re-organise the political structure of the country, supremacy of parliament over state legislatures if there is a direct conflict between their respective jurisdictions, vesting of the residuary legislative power in Parliament and powers of Governors to reserve bills for the consideration of the President of the Republic.

Fourthly, in certain circumstances, the Union is empowered to supersede the authority of the state or to exercise powers otherwise vested in the states.

The federal structure of the constitution was discussed in the landmark case of Keshavananda Bharati Sripadgalvaru v. State of Kerala[18]

A well - crafted, and more importantly, well-functioning system of federal governance, by virtue of its manifold benefits, plays a key role in promoting the stability and prosperity of nations as the heights attained in development by the leading federations of the world – USA, Canada, Australia and Switzerland – demonstrate. Unless, carefully crafted, federal systems do not sustain as demonstrated by the fragmentation of many of the federal creations that came into being in the last century, such as Soviet Russia, Yugoslavia, Czechoslovakia, Rhodesia, and Nyasaland[19]. As earlier stated, the Indian constitution though, claims to be decentralized and federal is somehow too centrist.

Case Laws and Federalism:
Federalism has been discussed in many case laws in the Indian context. Few of the Landmark judgments will be discussed under:
Article 356 has been the most controversial provision due to the abuse of power by the Centre. Surprisingly, prior to the S.R. Bommai case, President’s Rule had been imposed 90 times. The case of S.R.Bommai vs Union of India is a landmark case in the purview of the Indian Constitutional history relating to the proclamation of emergency under Article 356 of the Constitution. The case mainly came up with the issue, of the power of the President to issue proclamation under Article 356 of the Constitution including the power to dissolve State Legislative Assemblies and also issues relating to federalism and secularism as a part of basic structure.
In this case, Janata Party being the majority party in the State Legislature had formed Government under the leadership of Shri S.R. Bommai.

In September 1988, the Janata Party and Lok Dal merged into a new party called Janata Dal. The Ministry was expanded with addition of 13 members. Within two days thereafter, one Shri K.R. Molakery, a legislator of Janata Dal defected from the party. He presented a letter to the Governor along with 19 letters, allegedly signed by legislators supporting the Ministry, withdrawing their support to the Ministry. As a result, on 19.4.1989, the Governor sent a report to the President stating therein there were dissensions and defections in the ruling party[20]. However, on the next day seven out of the nineteen legislators who had allegedly written the said letters to the Governor sent letters to him complaining that their signatures were obtained on the earlier letters by misrepresentation and affirmed their support to the Ministry.

The Chief Minister and his Law Minister met the Governor the same day and informed him about the decision to summon the Assembly Session. The Chief Minister also offered to prove has majority on the floor of the House even by preponing the Assembly Session, if needed. To the same effect, he sent a telex message to the President. The Governor however sent yet another report to the President on the same day i.e., 20-4-1989, and stated that the Chief Minister had lost the confidence of the majority in the House and repeated his earlier request for action under Article 356. On that very day, the President issued the Proclamation in question with the recitals already referred to above. The Proclamation was, thereafter approved by the Parliament as required by Article 356.

A writ petition was filed on 26th April 1989 challenging the validity of the proclamation. A special bench of 3 judges of Karnataka High Court dismissed the writ petition.

It raised serious question of law relating to Proclamation of Emergency and dissolution of Legislative assemblies according Article 356 of the Constitution of India.

Held:
In this case, it has been held that the issue of emergency action by the President is justifiable in the court of Law, and that it is however, subject to judicial review. It is the duty of the government to produce the basis for declaring emergency when demanded by the people.

It was also contended that The Hon’ble Supreme Court in this regard held that the power conferred by Article 356 upon the President is a conditioned power. It is not an absolute power. This satisfaction may be formed on the basis of the report of the Governor or on the basis of other information received by him or both.[21]

The Hon’ble Supreme also held that the power of the court to restore the government to office in case it finds the proclamation to be unconstitutional, it is, in Courts opinion, beyond question. Even in case the proclamation is approved by the Parliament it would be open to the court to restore the State government to its office in case it strikes down the proclamation as unconstitutional.

It has also been concluded by the court that State Government cannot follow particular religion. Secularism is one of the basic features of the Constitution. It is a positive concept of equal treatment of all religious. This attitude is described by some as one of impartiality towards religion or as one of altruistic neutrality. While freedom of religion is guaranteed to all persons in India, from the point of view of the State, the religion, faith or belief of a person is immaterial. To the state, all are equal and are entitled to be treated equally.

Other such cases discussing the concept of Federal structure of state include, L Chandrakumar v Union of India, Rameshwar Prasad v. Union of India, Keshavananda Bharaticase[22], B.P. Singhal v. Union of Indiaand Kuldip Nayar v. Union of India.

Critical Appraisal:
This case has great implications on Centre-State Relations in the history of the Indian Constitution. Supreme Court intrepidly manifested out the paradigm and boundaries within which Article 356 has to function. The Supreme Court said that Article 356 is an extreme power and is to be used as a last resort in cases where it is apparent that there is a stalemate and the constitutional machinery in a State has collapsed. The views expressed by the court in this case are similar to the concern showed by the Sarkaria Commission.

The codes laid down in this case put a slab on the dismissal of the state government by the centre for political gains. From the above analysis of all the cases that have affected the Centre – State relations, it can be assumed that there is a very clear demarcation between the powers of the centre and the states. However, when the need arises the centre can take certain drastic measures to ensure the functioning of the state machinery. It is contended that this is in conflict with the nature of federalism, but in a country like India, this concept is ideal as the people are diverse and the culture is diverse just like a federal state. But when the need arises, we are all unified. Thus, Quasi – Federal type of constitution is Ideal in India.

End-Notes
[1]M.P. Jain, p. 19
[2]The Indian Journal of Political Science, Vol. 51, No. 2 (April - June 1990), pp. 172-185
[3]S. Bhatnagar and Pradeep Kumar (ed.),Contemporary Indian Politics, New Delhi, Ess Publishers, 1997
[4]M.P. Jain, p. 500
[5]Vijay Jaiswal,Federalism in Indian constitution
[6]Shubhangi Pathak,Nature of The Indian Constitution: Judicial Exposition
[7]Krishna murali,Indian Constitution - Federal or Unitary
[8]Dharam duttv.State of Chattisgarh, (2005) 5 SCC 420 : AIR 2005 SC 2026
[9]Constitution of India, 1950
[10]4.2. Federal Structure of the Constitution, Vol 1.
[11]State of West Bengalv. Committee for Protection of Democratic rights,West Bengal,AIR 2010 SC 1476 (1483)
[12]State of W.B.v.Kesoram Industries Ltd., (2004) 10 SCC 201 : AIR 2005 SC 1646
[13]Prakash Karat, “Federalism and the political system in India”
[14]State of Rajasthan v UOI, 1977
[15]S.R. Bommaiv.Union of India,1994 3 SCC 1.
[16]Shamsher Singh & Anrv.State of Punjab1974 AIR 2192
[17]S.R. Bommai v. Union of India,1994 3 SCC 1.
[18]Keshavananda Bharati Sripadgalvaruv.State of Kerala, AIR 1973 SC 1461: (1973) 4 SCC 225: (1973) Supp SCR 1 (Justice Sikri)
[19]Watts, 1999
[20]Constitution assembly debate
[21]S.R. Bommai v Union of India, 1994 3 SCC 1.
[22]Keshavananda Bharati Sripadgalvaru v. State of Kerala, AIR 1973 SC 1461: (1973) 4 SCC 225: (1973) Supp SCR 1 (Justice Sikri)

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