HOW MUCH FEDERAL IS OUR CONSTITUTION?
[Vol 1/ Issue 1/ Dec 2014] [ISSN 2394-9295]
Shanti Swaroop (Retd.) Addl. Commissioner
Email ID: firstname.lastname@example.org
The Indian Constitution is basically federal in form and is marked by the traditions characteristics of a federal system, namely, supremacy of the constitution, division of powers between the Union and the State Governments, existence of an independent judiciary and a rigid procedure for the amendment of the constitution. It established a duly polity, with clearly defined spheres of authority between the union and the states, to be exercised in fields assigned to them respectively.
There is an independent judiciary to determine issues between the Union and the States, to be exercised between one State and another. An amendment in the respective jurisdiction of the Union and the States can be brought about only by invoking a special procedure in parliament and ratification by a majority of states. A well-defined fiscal autonomy has been provided by including power to legislate and realise several taxes in state List to seventh schedule. True, the Indian Constitution exhibits centralizing tendency in several of its provisions, e.g., the adoption of a lengthy concurrent list, the power of Parliament to reorganise the political structure of the Country, supremacy of Parliament over State Legislature if there is a direct conflict between their respective jurisdictions, vesting of the residuary legislative powers in Parliament and powers of Governor to reserve Bills for consideration of Preside of the Republic. In certain circumstances, the Union is empowered to supersede the authority of the State on to exercise powers otherwise vested in States. But such diversions from the federal principle do not altogether change the basic federal character of our constitution as the same are purposely included to meet the exigencies and are qualified and circumscribed by certain conditions. Moreover their use is occasional and judicious.
Keywords: Parliament, Federal Principle, Judiciary, Constitution, State list, Seventh Schedule, Concurrent list.
The basic question arises as to whether the Indian Constitution adheres to the principle of federal supremacy, that is, is it a truly federal in nature. The opinions of different scholars are divided on this issue with their own reasons. According to Whear, the Constitution of India is a quasi-federal and not strictly federal. This view of that federation involved that the general and the regional government should each, with a sphere, be co-ordinate and independent. Jennings has characterized it as a ―federation with a strong centralizing tendency. Austin described it as a cooperative federation. A few scholars, however, accept it as a federal constitution.
It is pertinent to see here as to how the judicial view it. In contest between Centre and States the court has shown it strong predilection of a strong Centres and has, consequently, underplayed the federal aspects of the constitution. The Courts understandably adopted this strategy to counter the exaggerated claims of the States regarding their position, status and powers vis-à-vis the Centre. In State of Rajasthan V. Union of India, BEG, C.J., Sought to judge the Indian Federation by the yardstick propounded by WHEARE and characterized the Constitution as more unitary than federal and having appearance of a federal structure. He observed.
In a sense, therefore, the Indian Union is federal. But the extent of federation in it is largely watered down by the need of progress and development of a country which has to be nationally integrated. Politically and economically coordinated and socially, intellectually and spiritually uplifted.
There observations were made to justify the exercise of a Central powers under Art. 356. In S.R.Bommai V. Union of India  several judges have characterised the Indian federation in different ways. AHMADI, J. described the Indian Constitution, following KC WHEARE, as quasifederal ‘because ―it is a mixture of the federal and unitary elements, leaning more towards the later‘. But the other judges have expressed a more balance view. Justice SAWANT had observed.
Democracy and federalism are essential features of our Constitution and are a part of its basic structure.
Jeevan Reddy, J., has observed:
“The fact that under the scheme of our Constitution, greater power is conferred upon the Centre vis-à-vis the States do not mean that States are mere appendages of the Centre. Within the sphere allotted to them, States are supreme. The Centre cannot tamper with their powers. More particularly, the courts should not adopt an approach, an interpretation, which has the effect of or tends to have the effect of whittling down the power reserved to the States.”
Federation in India is not a matter of administrative convenience, but one of principle. While discussing the principle of federal supremacy it will be pertinent to discuss it with respect to Constitution of other countries also. The US Constitution has been regarded as the epitome of the classical federation. Historically looking, the US Constitution came into being as a result of the voluntary compact among the pre-existing States which conceded rather limited powers to the Centre. A similar process occurred in Australia. In course of time, however, things changed. The power of the Centre expanded phenomenally the correspondingly the power of States shrunk. This has been achieved without any amendment of the Constitution, but through ingenious legislative devices and judicial activism as well as judicial tolerance. The Centre‘s vast financial resources have led to emergence of the system of grantsinaid; centripetal forces have been generated and the Centre has become very powerful. The Canadian Constitution, to start with, definitely laid an accent on the Centre. In course of time, however, the Privy Council, by its process of interpretation weakened the centre and exalted the Provinces. Therefore, the Provinces in Canada have greater freedom of action that the Units in other federations. The Australian Constitution although characterized judicially as a true federation, as in the beginning but during the course of time, has moved towards centralization.
It is thus clear from the above that all the older federations have also exhibited centralising and centripetal tendencies and the constituent unit do not enjoy a co-equal status with the Centre. During the last several decades, an inevitable trend the world over has been strengthening of the Central Government. Undoubtedly, for some very good indigenous reasons, the accent of the Indian Constitution is on the Centre which has been made more powerful vis-à-vis the States. But merely because the Centre enjoys predominance over the States to some extent, the Indian Constitution does not cease to be federal. Federal form of government has no fixed connotations. No two federal Constitution are alike. Each federal government has its own distinct character. Each is a culmination of certain historical processes. One basic feature of each federation however is that there is a division of powers between the Centre and the regional units by the Constitution itself. If the essence of federalism is the existence of units and a Centre, with a division of functions between them by the sanction of the Constitution, then these elements are presented in India. In normal times, the States in India have a large amount of autonomy and independence of action. The Indian federal scheme seeks to reconcile the imperatives of a strong Centre with the need for State Autonomy.
FEDERAL SUPREMACY IN INDIAN CONSTITUTION
Article 245 provides that the Parliament may make law for whole or any part of the territory of India whereas the State Legislature within their competence may make laws for the whole or part of the State. Art. 246 talks about the three lists in Seventh Schedule to the Constitution List I (Union list) List II (State List) and List III (Concurrent List). Its clause (1) provides that Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I notwithstanding anything contained in clause (2) and (3). Clause (2) provides that Parliament, notwithstanding anything contained in clause (3), and State Legislature subject to clause (1) also, have power to make laws with respect to any of the matters enumerated in List III, i.e. concurrent list. Clause (3) provides that subject to clause (1) and (2), the Legislature of any States has exclusive powers to make laws for such State or any part thereof with respect to any of the matters enumerated in List II
i.e. the State List.
The States have a full-fledged Parliamentary form of government with substantial powers and exclusive subjects as enumerated in List II to legislate upon. Article 168 provides for such Government and Article 196 to 200 lays down the procedure to make legislations. In view of these provisions, at no time the States may be regarded as delegated or agents of the Centre. They subsist not at the sufferance of the Centre but derive their sanction and powers from the same Constitution from which the centre draws its sanctions and powers. An independent judiciary acts as an umpire between the Centre and the States. The process of amending the Constitution is not unilateral so far as the federal portion is concerned and at least half the States must agree before a proposed amendment can become effective. Article 368 provides the strict procedure for amendment of entrenched provisions as they are called.
Within the spheres assigned to the States by the Constitution, the State legislature has plenary power. No fetter of limitation can be read on the legislative powers of a State Legislature outside the Constitution. The States have independent and substantial source of revenue arising out of field of taxation enumerated in State List in which State has power to Legislate and also from Concurrent list. On the whole the Indian Union is never as closely knit as a unitary polity, nor is it loose as confederation.
There arises some disputes regarding the legislative powers on subjects enumerated in the concurrent list. Here clause (2) as well as Art. 154 gives the overriding powers to Parliament but exclusive of subjects enumerated in List II. On disputes arising out of such jurisdiction of Centre and/or States the Courts while deciding the matter base their judgements on the doctrine of pith and substance. The courts also see that no colourable legislation have been resorted to. Sometimes the residuary powers of Parliament to Legislate in matters which are not enumerated in List II & III including making of tax laws on such subject as given in Art 248 is taken as against the principle of federation. I don‘t find anything wrong and against the principle of federal supremacy because in such case centre is not encroaching upon the power of state legislature.
Another provision which is discussed as against the principle of federal supremacy is that of Art 3, i.e. formation of new States and alteration of areas, boundaries or names of existing States. True the parliament has power to re-organise the States but here also the States are to be consulted and, further India being a Union of States, the States have to exist as component units. The existence of several inter State boundary disputes for long, as between Mysore and Maharashtra, or Punjab and Haryana, prove that Parliament does not act unilaterally in such matters but only after consensus has been reached between the contending parties themselves. In actual practise today, the power to re organise the States is proving to be a source of embarrassment rather than of strength to the Central Government. Recently by passing a resolution proposing the division of State of U.P. in four States and sending it to Centre to make an amendment in the Schedule I to the Constitution, the BSP government of U.P. is playing political card to gain favour of electorates in coming assembly elections. Then, there is a provision relating to the appointment of the Governor by the Centre under Art 155. But here a convention has grown to consult the State Chief Minister.
There are the provisions in the Constitution requiring in some cases Central assent to State legislation. Art 200 and 201 are in the Constitution to that affect. But whatever the letter of the Constitution, in practise, by and large, Central assent is accorded to State legislation as a formality and there are not many instances of the Centre vetoing the State legislation. The one conspicuous example of this has been that of the Kerala Education Bill, over which public sentiment in the State ran high, but here also the Centre obtained the advisory opinion of the Supreme Court before remitting it back to the State legislature for suitable amendments in the light of court‘s opinion. The Central financial support to the States, as already pointed out, is provided largely under the Constitution and through the Finance Commission, an independent body, and this does not compromise State autonomy. The aid given by the Centre to the States for fulfilment of the plans is on the advice of the Planning Commission and the national Development Council in which all the States are represented. Further, provisions of federal grants-in-aid to the units are now a common feature of every federation and India is no exception to this trend.
The emergency provisions of the Constitution have at times been held as constituting a major deviation from pure federation. There provisions are designed for temporary use only; by their nature they cannot be of normal occurrence. Art 352 is to be invoked only when its need is demonstrable, and this is much more so now after the 44th Amendment 1978. Further, in an emergency, the behaviour of each federal constitution is very different from that in peace time. Art 356 and 357 is meant to be used only when constitutional machinery is not functioning properly in a State, and this is an exceptional, not a normal situation. In the case of SR. Bommai V. Union of India  the Supreme Court has spelled out a few restrictions on the innovation of Art
- Further the composition of two houses is presently such that it is not possible to invoke Art 356 in relation to a State unless there is national consensus to do so. On the whole the Central powers has weakened in this respect.
Then comes Art. 252 which introduces a kind of flexibility in the distribution of powers, the States come into picture as the Centre cannot take over the State matter without their co-operation and initiative. Only under Art 249, the Centre acts unilaterally, but it is for an extremely short period and in national interest. It is also a fact that this provision has been used sparingly.
STUDIES IN CENTRE STATE RELATIONS
In the beginning the centralising tendencies were accentuated apart from the constitutional provisions because of the fact that one national political party held that sway both at the Centre and in the States. But now the State government belongs to different and mostly regional parties. This monopoly of power of the congress party was broken in 1967. Within a last few years a significant change has occurred in the complexion of the Central Government itself. The Central Government today is not constituted by a single all India Political party; it is now a coalition of several political parties, national as well as regional parties. Accordingly the policies evolved by the Central Government are the product of the balance of the national and regional aspirations and perceptions.
Demands have been raised from time to time for re-ordering of the Indian federation. Seeing this the matrix of Centre State relationship was considered in the Administrative Reforms Commission. In its report issued in 1969 the Commission came to the conclusion that the basic constitutional fabric of ours is very sound and must remain intact. Further, in the opinion of the Commission no Constitutional amendment is necessary for ensuring proper and harmonious relations between the Centre and the States, in as much as the provisions of the Constitution governing Centre State relations are adequate for the purpose of meeting any situation or resolving any problems that may arise in this field. The commission rightly observed that the Constitution was flexible enough to ensure its successful working irrespective of whichever party may be in power, provided those who are in the power mean to work it and not to wreck it. The government of India agreed with this view of the commission.
In 1983 in response to an insistent demand to review the Centre State relations, the Central government appointed the Sarkaria Commission under the chairmanship of R.S.SARKARIA, a retired judge of the Supreme Court. The terms of reference were to examine and review the working of the existing arrangements between the Union & States in regard to powers, functions and responsibilities in all sphered and recommended such change or other measures as may be appropriate keeping in view the social and economic developments that have taken place over the years and have due regard to the scheme and framework of the Constitution which the founding fathers have so sedulously designed to protect the independence and ensure the units and integrity of the country which is of paramount importance for promoting the welfare of the people.
The commission presented its report in 1988. In its report while the commission suggested some adjustments in the Centre State relationship in several ways, it did not make any suggestion for any fundamental change
in the structure of the constitutional provisions relating to federation. In this connection, the following observation of the Sarkaria Commission may be taken note of:
“The primary lesson of India‘s history is that, in this vast country only that polity or system can endure and protect its unity, integrity and sovereignty against external aggression and internal disruption, which ensures a strong Centre with paramount powers, accommodating, at the same time, its traditional diversities. This lesson of history did not go unnoticed by the framers of Constitution. Being aware that notwithstanding the common cultural heritage without political cohesion, the country would disintegrate under pressure of fissiparous forces. They accorded the highest priority to insurance of the unity and integrity of the country.”
Thus considering the whole of the constitutional process not only the letter of the Constitution but the practise and conventions that have grown there under the Indian Constitution can justiably be called federal the principle of federal supremacy has evidently been followed.
- Jain, M.P., Indian Constitutional Law, Lexis Nexus, 6thEdition, 2013.2. Bakshi, P.M., The Constitution of India, Universal Law Publisher, 2013 Edition.3. Nicholas., The Constitution of India.4. Sarkaria Commission Report, 19885. All India Reporter, 19776. All India Reporter, 1994
2. AIR 1977 SC 1361
3. AIR 1994 SC 1918
4. AIR 1994 SC 1918
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