THE CONCEPT OF FEDRALISM UNDER THE INDIAN CONSTITUTION

INTRODUCTION  

The evolution of the concept of federalism in India should be viewed in its historical perspective in order to have a proper understanding of the Indian concept of federalism. The British Crown  assumed power under statute 21 and 22 of Victoria Charter 100. The highly centralized and  unitary set up was arranged as follows: 

∙ From the British crown to the Secretary of State  

∙ Then, From the Secretary of State to the Governor General who enjoyed full control ∙ Then, From the Governor General to the Governor who enjoyed provincial control 

There existed some devolution of powers by the 1919 Act but this was only for the purpose of  decentralization of government power; the government still remained unitary. The 1935 Act aimed at uniting the provinces and the Indian States into a Federation but the Indian States did not join  and the aim got defeated. The Indian Independence Act, 1947 carved out a separate dominion  for India and the control of the British Parliament was defeated. The Government of the dominion  was made a sovereign. The constitution also envisaged a decentralization of authority as the  territory of India was too large and the political trend of decentralization could not be reversed.  For a greater degree of economic unity, subjects having impact on matters of common interest  were transferred to the union list. Thus, the powers of the union got enlarged. 

The legal theory on which it was based on was the withdrawal of all powers of the sovereignty  into the people of this country and distribution of these powers, save those withheld from both the  centre and the states by reason of provision of Part 3. 

TEST OF FEDERALISM

Federalism is one of the methods of limiting the government. The conditions to be fulfilled by the  constitution to be federal have been enlisted by the Supreme Court in the case of State of West  Bengal v. Union of India 

1. A contract or agreement between independent and sovereign units to surrender partially  their authority in the common interest and vesting it in a union and retaining the residue of  the authority in the constituent units.  

2. Supremacy of the constitution which cannot be altered except by the component units. In  India, eventhough the constitution enjoys supremacy, it can be altered by the Parliament  alone. 

3. Distribution of powers between union and regional units each in its sphere co-ordinate and  independent of one another. The basis of such distribution of powers is that matters of  national importance in which uniform policy is desirable in the interest of the units,  authority is entrusted to the union and matters of local concern remain with the State.  

4. Supreme authority of courts to interpret the constitution and to invalidate action violative  of the constitution. A federal constitution consists of checks and balances and must contain  provisions for resolving conflicts between the executive and the legislative authority of the  union and the regional units. 

In the aforementioned case it was thus argued that since the Indian Constitution is a Federal  Constitution therefore all the provisions of the Constitution should run subservient to that  principle. On the basis of that it was argued that even if there is a provision in the Constitution that  the centre can acquire property in the states, this power should be read subject to the concept of  Federalism which envisages that the centre and the states are coordinate and independent in their  respective spheres and are equal n status. 

It was held that the Indian Federalism is not true to any traditional pattern of federalism however,  India is Federal in its own light there can be no subjection of an express power to any un-explicit  doctrines. 

IMPORTANT PROVISIONS ALLEGEDLY AFFECTING THE NATURE  OF THE INDIAN CONSTITUTION 

On the basis of the following features, it has been argued that the Indian Constitution is not federal  in nature: 

1. Governors: 

∙ Governors are appointed by the President 

∙ Governors can send certain bills directly to the President for is assent and the  President can veto it. 

2. Article 249: The Parliament can legislate on state subjects if Rajya Sabha passes a  resolution to this affect by a two-third majority. 

3. Article 3: Parliament empowered to form new states and alter boundaries of existing states. 4. Emergency provisions 

The abovementioned arguments have been contended as follows: 

∙ With regards to the first contention, it has been argued that whatever be the letter of the  constitution, in practice there are not many examples where the President has vetoed the  state laws. The only example to be found is the Kerala Education Bill case, but here too  the centre did so only after obtaining the advisory opinion of the Supreme Court. Moreover,  the Governor being a mere nominal head of the state, his appointment by the President does  not deter the concept of Federalism. 

∙ With regards to the second contention, there is no harm in the parliament legislating on a  state subject if it assumes a national character. Also, this power is given by the parliament  by the Rajya Sabha only, which represents the state legislatures. 

∙ With regards to the third contention, it can be argued and justified on historical basis. The  provisions of Article 3 takes into account the fact that the constitution contemplated  readjustment of the territorial boundaries of the constituent states which might arise in the  future. 

∙ With regards to the fourth contention, it can be argued that it is a merit of the constitution  that it is able to visualize the contingencies when strict application of the federal principle  might destroy the basic assumption on which the constitution is built.

SEERVAI’S ARGUMENTS FOR THE FEDERAL NATURE OF THE  CONSTITUTION OF INDIA 

The question of the nature of the constitution has only been raised after the emergency and the rise  of many political parties. Seervai argues that the constitution is a federal constitution and is  arguments for the same are as follows: 

1. The states were not independent before they became a part of the Indian constitution. This  does not mean that the state is not federal because a federal situation existed when the  British Government adopted a federal situation in the Government of India Act, 1935 and  later the constituent assembly adopted a federal solution in the Indian Constitution. 

2. Parliament can alter the state boundaries, but it is not the parliament but the states by extra  constitutional agitation have made them alter their boundaries. 

3. Allocation of residuary powers to centre is not relevant as the United States and Australian  constitution give it to the states but they are necessarily federal. 

4. External Sovereignty of states should belong to the country as a whole. 5. It is of essence in a federal principle that both state and central laws must operate on the  same person and in case of conflict, the central law should prevail over the constitution. 6. The emergency powers under Article 352 recognize de jure what happens de facto in United States and Australia. The emergency Powers do not dilute federalism. 7. Emergency on the grounds of internal disturbance (now ‘armed rebellion’) is also  recognized in the United States in Deb’s case wherein it was held that internal violence  could be crushed with full force by the government. 

8. The war power belongs to the central government in all federal states. Thus Article 355  imposing a duty on the Union to protect a state against external aggression or internal  disturbance does not detract from the federal principles. 

9. Federal laws must be implemented by the states by appropriated machinery. In the United  States, a defiance of federal laws can be and has been put down by the use of armed forces  of the United States and the National Militia of the States. Indian Constitution has a 

provision of the centre giving direction to the states. It depends on the matters of practical  expediency and does not deter from the federal concept. 

10. Article 356 read with Article 355 was based on Article 4, Section 4 of the United States  Constitution and is not inconsistent with the federal principle. 

11. The view that states have been given unimportant matter is incorrect. The sates have been  given exclusive taxing power and their revenue is substantial. Apart from this, they also  receive the whole or a part of the revenue by the centre. 

CONCLUSION 

Traditionally classified, constitutions can either be unitary or federal, depending on the powers  and responsibilities attributed to the centre and to the states. The constitution distributes the power  between the centre and the states and these powers often come into conflict with each other. These  can be resolved either by deciding in favour of the centre or the states, making the constitution  either unitary or federal in nature. The nature of the constitution can be decided by looking into  the various powers and responsibilities attributed to the states by the constitution and interpreting  the constitution accordingly. 

With regards to the nature of the Constitution of India, there is a difference of opinion among  jurists. The framers of the constitution have classified the constitution as federal whereas, K.C. Wheare states that it is almost quasi federal in nature. Also, Jennigs has termed it as “a federation  with strong centralized tendency”. Till this date no court as clearly pronounced that the Indian  constitution is a federal constitution. In the case of Kesavanada Bharti v. State of Kerala, the  Supreme Court merely mention that the ‘federal character’ is a part of the basic structure of the  constitution. Also, in S. R Bommai case, H’onble Ramaswamy J. endorsed that the Indian  Constitution is based on federal principles.