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.
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
The Indian Federalism has been devised after a close and meticulous
study of the contemporary trends in these federations.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
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.
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.
According to Daniel J. Elazara, - Federal system provides a so as to
allow each to maintain its fundamental political integrity.
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. 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.
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. 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.
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.
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
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
ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.”
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
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
Through these lists, the Indian Constitution seeks to create three functional
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
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.
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…” It has
also been called Pragmatic Constitution in the words of Justice Ahmadi.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.’
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.
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.
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 that the Supreme Court cracked the whip and
laid down guidelines for the implementation of Article 356.
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
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.
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.
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
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. As earlier stated, the Indian
constitution though, claims to be decentralized and federal is somehow too
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. 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
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
It raised serious question of law relating to Proclamation of Emergency and
dissolution of Legislative assemblies according Article 356 of the Constitution
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
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
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
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, B.P. Singhal v. Union of Indiaand Kuldip Nayar v. Union of
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.
M.P. Jain, p. 19
The Indian Journal of Political Science, Vol. 51, No. 2 (April - June 1990),
S. Bhatnagar and Pradeep Kumar (ed.),Contemporary Indian Politics, New
Delhi, Ess Publishers, 1997
M.P. Jain, p. 500
Vijay Jaiswal,Federalism in Indian constitution
Shubhangi Pathak,Nature of The Indian Constitution: Judicial Exposition
Krishna murali,Indian Constitution - Federal or Unitary
Dharam duttv.State of Chattisgarh, (2005) 5 SCC 420 : AIR 2005 SC 2026
Constitution of India, 1950
4.2. Federal Structure of the Constitution, Vol 1.
State of West Bengalv. Committee for Protection of Democratic rights,West
Bengal,AIR 2010 SC 1476 (1483)
State of W.B.v.Kesoram Industries Ltd., (2004) 10 SCC 201 : AIR 2005 SC
Prakash Karat, “Federalism and the political system in India”
State of Rajasthan v UOI, 1977
S.R. Bommaiv.Union of India,1994 3 SCC 1.
Shamsher Singh & Anrv.State of Punjab1974 AIR 2192
S.R. Bommai v. Union of India,1994 3 SCC 1.
Bharati Sripadgalvaruv.State of Kerala, AIR 1973 SC 1461: (1973) 4 SCC
225: (1973) Supp SCR 1 (Justice Sikri)
Constitution assembly debate
S.R. Bommai v Union of India, 1994 3 SCC 1.
Keshavananda Bharati Sripadgalvaru v. State of Kerala, AIR 1973 SC 1461:
(1973) 4 SCC 225: (1973) Supp SCR 1 (Justice Sikri)