CONSTITUTIONAL LAW II- PROJECT

FEDERAL PRINCIPLE AND ITS ADOPTION IN

INDIAIN CONSTITUTION

SUBMITTED TO: SUBMITTED BY:

Akhilesh Kumar Pandey Divyae Patel (Sem-III)

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 DECLARATION
The Project on “Criminal Law” is do hereby submitted to the Law faculty of United World
School of Law, Karnavati University. And it is purposely consecrated to the Respected
Professor Dr. Akhilesh Pandey and honorable Dean of the faculty Mr. Nachiketa Mittal. I
have tried out best not to fall into lapses of the subject matter and the language but errors the
habit of creeping in inadvertently. I hope that you and my fellow classmates, friends will help
me in making the project more useful.

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 TABLE OF CONTENTS

Table of cases used..........................................................................4

Table of statutes used......................................................................5

Research methodology..................................................................6

CHAPTER-1

Federal Principle..........................................................................7

CHAPTER-2

Federalism in The United States Of America............................12

CHAPTER-3

Federalism in India........................................................................15

CHAPTER-4

Comparison Between India And USA Federalism......................18

CHAPTER-5

Nature Of Indian Constitution: Federal Or Quasi-Federal........22

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 TABLE OF CASES
• Marbury vs. Madison1803) 1 Cr 137
• Cooper v. Aron, (1958) 358 US 5 (16-17)
• State of West Bengal V. Union of India AIR 1963 SC 1241
• Minerva Mills Ltd. & others V/s Union of India AIR 1980 SC 1789
• Pradeep Jain V. Union of India AIR 1985 SC 1420
• Ganga Ram Moolchandani v. State of Rajasthan 1994 CriLJ 2125, 1993 WLN UC
589
• ITC LTD v Agricultural Produce Market Committee [2002] INSC 34
• Kesavananda Bharati vs. state of Kerala AIR 1973 SC 1461
• Maneka Gandhi v. Union of India 1978 AIR 597
• 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 1646
• State of Rajasthan v UOI, 1977
• S.R. Bommaiv.Union of India, 1994 3 SCC 1
• Shamsher Singh v. State of Punjab 1974 AIR 2192

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 TABLE OF STATUTES USED

The Constitution Of India, 1950

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 RESEARCH METHADOLOGY

OBJECTIVE:

To examine and study the Federal Principles in the American and Indian Constitution and
analysing the similarities and differences in the American and Indian Constitution.

RESEARCH QUESTIONS:
• What is Federal Principle?
• Whether the Indian Constitution is Federal or Quasi-Federal in nature?

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 CHAPTER-1

FEDERAL PRINCLE

What is Federal Principle?

“By the Federal Principles”, Prof. Wheare1 observes, “is meant the method of dividing the
powers, so that the general and regional Governments are each within a sphere co-ordinate
and independent. Both the federal and the regional Governments are co-ordinate and
independent in their spheres and not subordinate to one another”.

The American Constitution is universally regarded as example of federal Constitution. It

establishes dual polity or dual form of Government, i.e. the Federal and the State
Governments. The powers of both the Central and the State Governments are divided and
both are independent in their spheres. The existence of co-ordinate authorities independent of
each other is the gist of the federal principle.

Prof. Wheare, after giving the above definition as to what the federal principle is, himself
proceeds to examine whether American Constitution satisfies the above test. He observes:
“Are we to confine the forms to cases where the federal principle has been applied
completely and without exception? It would not be sensible to do this. After all, the
Constitution of United States itself, as originally drawn up contained at least one exception to
the federal principle in that senate was composed of representatives selected by Legislature of
the State. Thus a part of general Government of the United States was dependent to some
extent upon a part of regional Government. This exception to the federal principle was
maintained in law until 1913. Yet the American Constitution from 1787- 1919 was and must
be called “federal Constitution” for the federal principle was predominant in it. Thus the
creation is “Is the federal principle Constitution”. If, on the other hand, there are so many
modifications, in the application of the federal principle that it ceases to be any significance,
the Constitution cannot be termed federal. This appears to be the most instructive and
responsible way in which to use the term ‘federal Constitution’ more widely2. Thus Dr.
Wheare accepts that exceptions are permissible provided federal principle is predominantly
retained in the Constitution.

1
K.C. Wheare-Federal Government, p. 27 (4th Ed., 1963)
2
K.C. Wheare-Federal Government, p. 15 (4th Ed., 1963)

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Features of federalism

Political Science classified Constitutions as unitary and federal, from the organizational
standpoint, i.e.; from the standpoint of distribution of governmental powers3. In this context,
Dicey observed that “Unitarianism... means the concentration of the strength of the state in
the hands of one visible sovereign power…Federalism means the distribution of the force of
the state among a number of co-ordinate bodies each originating in and controlled by the
Constitution”4 Broadly speaking, while in a unitary State, all power is vested in a single
Central Government, without imposing any constitutional limitations upon its authority, and
the local authorities operate as administrative agencies of the Central government, exercising
such powers as the Central government might delegate to the latter. On the other hand, in the
federal State, the Constitution divides the powers between the central and regional
governments, each deriving its powers from the provisions of written Constitution, so that
there is a sphere of autonomy belonging to the territorial organizations called States, which
cannot be withdrawn or curtailed at the will of the central organization, called the Federal
Government.

Federalism is thus a system of government of a country under which there exist

simultaneously a federal or Central Government (legislature and executive) and several State
or provincial legislatures and governments as contrasted with a unitary State. Both federal
and State governments derive their powers from the federal Constitution, both are supreme in
particular spheres and both operate directly on the people; the State governments accordingly
are not exercising powers delegated by the federal governments, nor they are subordinate to it
(though they may deal with less important matters). The foregoing legal test of federalism,
when analysed, leads to the following broad features of a federal Constitution.

1. Written Constitution
A federal state derives its existence from the Constitution, just as a corporation
derives its existence from the grant or statute by which it is created. Every power –
executive, legislative or judicial- whether it belongs to the federation, or to the
component States, is subordinated to and controlled by the Constitution. Therefore, a
federal State requires a written Constitution for the obvious reason that in order to be
workable and stable and the limitations upon them to be enforceable, must be

3
K.C. Wheare -Modern Constitutions p. 19
4
Dicey-Law of the Constitution, p. 155-157 (10th Ed.)

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 precisely defined by a written instrument. Thus, even though Australia adopted the
system of responsible government (or the Cabinet system) from the unwritten
Constitution of the U.K., it had to be embodied in a written Constitution. When a
federal polity possesses two constitutions as in the case of U.S.A. and Australia (one
for the federation and another relating to the internal structure and administration of
each State) and if there is a conflict between the two, then the Federal Constitution
shall prevail.

2. Supremacy of Constitution

A federal State derives its existence from the Constitution, just as corporation derives
its existence from the grant by which it is created. Hence, every power, executive,
legislative or judicial whether it belongs to the nation or to the individual State is
subordinate to and controlled by the Constitution.5 The Constitution in a federal State
constitutes the supreme law of land. Prof. Wheare says “that those two institutions-
the supreme Constitution and the written constitution are then, essential institutions to
a federal Government. The supreme Constitution is essential if Government is to work
well.”6

3. Distribution of Powers

The most essential feature of a federal system is the distribution of powers between
two governmental units – national and regional. However, even in unitary system,
there is some distribution or devolution of powers as between the national and local
governments, but no Court can interfere if the national government withdraws or
revokes the powers which had been delegated by itself to the regional administration.
Whereas in the federation, the regional units derive their powers, not by delegation
from the national government, but from the same source as does the national
government itself, viz., the Constitution, and the distribution of powers between the
two units, which is made by the Constitution, is binding on the national as much as on
the regional Governments, so that if either the general or a regional government

5
A.V. Dicey- The Law of the Constitution, p. 157 (10th ed.)
6
K.C. Wheare- Federal Government, p. 15 (4th Ed., 1963)

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 transgresses the boundaries demarcated by such constitutional distribution of powers,
its act would be pronounced by the Courts to be unconstitutional and void. The
Constitution distributes powers between the two Governments in such a way that the
governmental organs of each of the two Governments operate with direct authority
over the citizens. In the case of a regional government, it has authority over the
citizens residing within the territory of that region, while in the case of the federal
government; its authority extends over citizens residing over the entire territory of the
country, irrespective of the territorial barriers of the units of the federation.

4. No Unilateral Change/ Rigidity

The foregoing distribution of powers made by the Constitution cannot be changed or

amended at the unilateral will of the parties to the federation, i.e; the Federal
Government or the Regional Governments. The Constitution provides a process for
changing its provisions, called ‘amendment’. In other words, the Federal nations
generally have rigid Constitution.

5. Authority of Courts

The distribution of powers made by the Constitution must be guarded by the

Judiciary, which is to interpret the Constitution as the ‘fundamental law’ of the land
and to enforce its provisions against both the Federal and Regional Governments and
to invalidate any of their acts which transgresses the limitations imposed upon them
by the Constitution. Where the Federating States have separate Constitutions, the
problem arises as to how far the Constitutional decisions of the Federal Supreme
Court shall be binding upon the States and their Courts. In this context, it was laid
down in the case of Marbury vs. Madison7, that the Federal judiciary is supreme in the
exposition of the law of the Constitution, and that principle has ever since been
respected by this Court and the Country as a permanent and indispensable feature of
constitutional system8.

7
( 1803) 1 Cr 137
8
Cooper v. Aron, (1958) 358 US 5 (16-17)

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All these features exist in the Constitutions of the U.S.A., Australia, West Germany on the
one hand, and also in the Constitutions of Canada and India (subject to variations in matters
of details), on the other hand, even though the latter two are strongly characterised by a
central bias or balance in favour of the centripetal factors.

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 CHAPTER-2

FEDERALISM IN THE UNITED STATES OF AMERICA

A federal system of government, such as in the United States, divides power and
responsibilities between the national government and state governments. At first glance, the
U.S. Constitution appears to make this division clear. The supremacy clause contained in
Article VI declares federal laws, treaties, and the U.S. Constitution to be the supreme law of
the land.

Implied and Enumerated Powers

In addition, the U.S. Constitution grants Congress certain enumerated powers, listed in
Section 8 of Article I. These powers cover a wide range of subjects, among them the
authority of Congress to tax, spend, and borrow. All remaining powers belong to the states.
However, the division of state and federal power is not as definitive as it might appear.The
powers of Congress are augmented by the recognition that it possesses implied powers in
addition to enumerated powers. Implied powers are not specifically mentioned in the U.S.
Constitution, but are derived from the necessary and proper clause of Article I, Section 8. The
U.S. Supreme Court has long recognized the existence of implied powers. For example, the
commerce clause empowers the federal government to “regulate commerce with foreign
nations, and among the several States…” This now extends to an array of activities
unimagined by the Framers of the Constitution and outside the scope of what most people
originally considered interstate commerce. A broad interpretation of Article I’s ambiguous
language, combined with the necessary and proper clause, has made the enumerated powers a
springboard for increased federal authority over state and local policies.

Concurrent and Reserved Powers

Many powers belonging to the federal government are shared by state governments. Such
powers are called concurrent powers. These include the power to tax, spend, and borrow
money. State governments operate their own judicial systems, charter corporations, provide
public education, and regulate property rights. The Tenth Amendment to the U.S.

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Constitution would seem to preserve broad authority to state governments: “The powers not
delegated to the United States by the Constitution nor prohibited by it to the States, are
reserved to the States respectively, or to the people.” These reserved powers, often called the
police powers, allow states to legislate and regulate to protect the health, safety, and morals
of citizens. State criminal law, zoning laws, environmental protection, and blue laws (laws
banning the sale of certain items on Sundays, usually alcohol) are all examples of police
powers.

While the sweeping language of the Tenth Amendment suggests impressive state powers, it
has done little to limit federal intervention in many policy areas that were traditionally
considered exclusive to the states. For example, in the 19th century marriage and education
were two areas considered off limits for the national government. However, in recent decades
the federal government has become increasingly active in the regulation of these activities.
The ambiguity of undefined powers inherent in federalism and our nation’s Constitution
results in frequent reliance on the supremacy clause as the division of powers between federal
and state governments is debated.

Texas laws and policy are strongly influenced by the federal government in two ways. For
one, Texas is subject to mandates of the U.S. Constitution and federal law. Texas is subject to
the Bill of Rights which guarantees a broad array of civil liberties, and federal civil rights
laws passed under the 14th Amendment and Commerce Clause. For example, Texas is
subject to the Americans with Disabilities Act which requires "reasonable accommodations"
for those with disabilities. Second, the federal government can exert enormous pressure
through fiscal federalism, or the use of block and categorical grants, to persuade the state to
enact particular policies. Federal funds account for the second part of the state budget.

Federalism in the United States has evolved quite a bit since it was first implemented in 1787.
Two major kinds of federalism have dominated political theory. There is dual federalism, in
which the federal and the state governments are co-equals. Under this theory, there is a very
large group of powers belonging to the states, and the federal government is limited to only
those powers explicitly listed in the Constitution. As such, the federal government has
jurisdiction only to the extent of powers mentioned in the constitution.

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Under the second theory of federalism known as cooperative federalism, the national, state,
and local governments interact cooperatively and collectively to solve common problems.
Cooperative federalism asserts that the national government is supreme over the states.

Regardless of the kind of federalism, the Constitution does provide some very specific
powers to both the states and the federal government. They are:

• Delegated Powers – Delegated powers are those powers specifically assigned to the
Federal Government. The national government has very specific enumerated powers
including the regulation of interstate and international trade, coinage and currency,
war, maintenance of armed forces, postal system, enforcement copyrights and power
to enter into treaties.

• Reserved Powers – In this case, all powers not specifically delegated to the Federal
Government are to be reserved or saved for the State Governments. These powers
include power to establish schools, establishment of local governments, and police
powers.

• Concurrent Powers – Concurrent means “at the same time.” Concurrent powers are
those that both the federal and state governments share simultaneously, for example
the power to tax, maintain courts and the ability to construct and maintain roads.

• Implied Powers – These are powers that are NOT specifically delegated in the
Constitution, but are understood to be necessary or allowed. The “necessary and
proper clause” of the Constitution state that Congress has the power “to make all laws
which shall be necessary and proper for carrying into execution the foregoing powers”
(art. I, sec. 8 of the US Constitution).

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 CHAPTER-3

FEDERALISM IN INDIA

The constitutional law consists both of legal in the strict sense and of usages, commonly
called as conventions, which without being enacted are accepted as binding by all who are
concerned in government. Many rules and practices are not part of the law in the sense that
there violation may lead to proceeding in a court of law.

Indian Constitution is aid to be a federal struture only because it is said that it has clear
demarcation of boundaries between central & the state government similar to that of U.S.
India having legislative and executive authority divided between the centre and the state.

India is often also claimed to be non- federal in matter such as the Centre can impinge upon
the areas earmarked only for the states in some cases. Therefore, it infringes the principle of
federalism as it makes the state hyponym to the centre. Hence, it is also said to be in a unitary
form of government too.

The phenomena of such unitary form of government arises only during the period of wars or
emergency period.

A federal constitution establishes a duple polity with Union at the centre and the States at the
fringe, each dowered with autonomous powers to be exercised in the field assigned to them
respectively by the constitution. Both are in a way co-ordinate to powers of each other.

In fact, the basic principle of federalism is that the legislative, executive and financial
authority is divided between the centre and the states not by law passed by the centre but the
Constitution itself.

Indian Constitution also defines a counterpoise of powers between the Executive, Legislature
and the Judiciary. If courts are deprived of the powers, the fundamental rights conferred on
the people of the country will become just equal to a decoration and people as puppet in the
hands of the sovereign. Thus, it will also lead to a system wayward to that of democracy and
undermine its spirit. The bestowal of the right to spifflicate the identity of the Constitution

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twinned with provision that no Court of Law shall pronounce upon the validity of such
wipeout and no limit to the amending powers. If the constitutional amendment cannot be
pronounced to be invalid even if it destroys the basic structure of the Constitution, a law
passed in pursuance of such will be beyond the pale of judicial review as it will receive the
protection of Constitutional amendment thus made and no organ has power to overrule it.

The first significant case where this issue was discussed at length by the apex Court was State
of West Bengal V. Union of India9. The main issue involved in this case was the exercise of
sovereign powers by the Indian states. The legislative competence of the Parliament to enact
a law for compulsory acquisition by the Union of land and other properties vested in or
owned by the state and the sovereign authority of states as distinct entities was also
examined. The apex court held that the Indian Constitution did not propound a principle of
absolute federalism.

Article 13 of the Indian Constitution will then become a non-issue and could be easily
neglected as even ordinary laws will escape the scrutiny of the courts on the ground that they
are passed on the strength of the Constitutional Amendment which is not open to challenge. It
was stated under a leading case decided by the Apex Court in the Minerva Mills Ltd. &
others V/s Union of India10.

In Pradeep Jain V. Union of India11, the Apex Court expressed as India is not a federal State
in the traditional sense of that term. It is not a compact of sovereign State which have come
together to form a federation by ceding undoubtedly federal features. In Ganga Ram
Moolchandani v. State of Rajasthan12 the Supreme Court restated: Indian Constitution is
basically federal in form and is marked by the traditional characteristics of a federal system,
namely supremacy of the Constitution, division of power between the Union and States and
existence independent judiciary. The apex Court in ITC LTD v Agricultural Produce Market
Committee13 expressed a similar opinion.

9
AIR 1963 SC 1241
10
AIR 1980 SC 1789
11
AIR 1985 SC 1420
12
1994 CriLJ 2125, 1993 WLN UC 589
13
[2002] INSC 34

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In the Kesavananda Bharati vs. state of Kerala14 case, the Supreme Court ruled that all
provisions of the constitution, including Fundamental Rights can be amended. However, the
Parliament cannot alter the basic structure of the constitution like secularism, democracy,
federalism, separation of powers. Often called the "Basic structure doctrine", this decision is
widely regarded as an important part of Indian history.

In the 1978 Maneka Gandhi v. Union of India15 case, the Supreme Court extended the
doctrine's importance as superior to any parliamentary legislation. According to the verdict,
no act of parliament can be considered a law if it violated the basic structure of the
constitution. This landmark guarantee of Fundamental Rights was regarded as a unique
example of judicial independence in preserving the sanctity of Fundamental Rights. The
Fundamental Rights can only be altered by a constitutional amendment; hence their inclusion
is a check not only on the executive branch, but also on the Parliament and state legislatures.
The imposition of a state of emergency may lead to a temporary suspension of the rights
conferred by Article 19 (including freedoms of speech, assembly and movement, etc.) to
preserve national security and public order.

The Supreme Court is an independent authority to declare the Acts of the Union and States
ultra-vires if either of them entrenches the defined powers of each other. Thus while in
normal times our Constitution is federal, in emergency period it becomes unitary. Therefore,
we can even call our Indian Constitution as semi-federal.

14
AIR 1973 SC 1461
15
1978 AIR 597

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 CHAPTER-4

COMPARISION BETWEEN THE US AND INDIAN FEDERALISM

There are certain similarities as well as differences between American Federalism and Indian
Federalism-

Both United States and India which are considered as the largest democratic countries in the
world are based on federalism in their political structure. The US gained the status of Federal
Republic State in the year1789; whereas India occupied the status of Socialist, Sovereign,
Secular, and the Democratic Republic by enacting its Constitution in the year 1950. Thereby
both countries had attained dominion status in which several smaller states got associated
with a strong central government which is known as Federal Government in the US and
Central Government in India. Thus, both states became Federal Republics.

During framing of the Constitution, the drafting committee headed by Dr.Ambedkar,

borrowed many features from Constitutions of other countries including US which was
adopted in the Indian context. Hence, both U.S and India, even though federal in character
have certain similarities as well as differences between them.

Similarities between the federalism of US and India

1) Written Constitution

The Constitution of both US and India is a written Constitution, which provides for a federal
political structure where both the governments exercise their respective powers. The
Constitutions of both the countries provide for amending the Constitution to meet the
changing circumstances and the growing political, economic, social needs and demands
political and economic needs and demands of their respective countries.

2) Bill of Rights and Fundamental Rights

The US Constitution has given its citizens fundamental rights such as the right to equality,
freedom, right against exploitation, freedom of religion, cultural and educational rights, right
to property, and the right to Constitutional remedies etc. by means of ‘The Bill of Rights’,
Part III of the Indian Constitution guarantees the fundamental rights of the people as given in
Articles 14 to 34.

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3) Supremacy of the Federal or Union Government

In both the countries, the federal government works at the centre in which various states have
acceded to. In the US, there are 50 states who have associated them to the federal government
and in the Indian Union, as many as 29 states and 8 Union territories have accepted this form
of government. Both in US and India, states which have accepted the Federal set up have no
individual power to separate from the Central Government or the Union Government. While
both the Central as well as State Government is empowered to makes laws on subjects given
in the concurrent list, the law enacted by the Federal or Union Government will prevail over
the law enacted by the states on the same subject in case of dispute. Thus, Federal or Union
Government is supreme in the present federal structure.

4) Separation of powers

Both US and Indian Constitutions provides for separation of powers among three institutions
namely executive, legislature and judiciary. Each division is empowered with a separate
power. The executive governs the country, the legislature makes laws, and the judiciary
ensures justice. President of US is the chief executive head of US, whereas the Union cabinet
headed by the Prime Minister is the real chief executive body in India. Both US and India
have a bicameral legislature. The upper and the lower houses of US legislature are called as
the House of Senate and the House of Representatives respectively, and the Indian Parliament
has Lok Sabha and Rajya Sabha as its Lower and Upper house respectively.

5) Powers of Checks and Balances

Though there is a clear-cut separation of powers between executive, legislature and judiciary
in both countries, still there can be overlapping of these powers. There are chances of abuse
of power or arbitrariness. Thus, there is a need for a system of ‘checks and balances’
prevalent in both countries.

The President having chief executive power appoints the members of his ‘Kitchen Cabinet’
and he is the Supreme Commander-in-Chief of Army, Navy and the Air Force. He is
empowered to appoint the Chief Justice of the Supreme Court of the US. He enters into
treaties with other countries. However, his treaties must be approved by the House of Senate.
Otherwise, the treaty will not come into force.

19
Similarly in India, it is the Prime Minister and his cabinet who exercise real power. They can
be removed from power by a successful no-confidence motion passed by both houses of
parliament. The policy decisions become laws only after obtaining the requisite majority of
the parliament. However, the laws enacted by the parliament are subject to the judicial review
of the Supreme Court of India.

Thus, the powers of checks and balances have been the efficient method both in the US and
in India in protecting the democracy in both countries.

Differences between the federalism of US and India

There are certain differences that exist between the federalism of US and India. These
differences have been created by the architects of the Indian Constitution. The US federalism
is very strong and more rigid as envisaged in their Constitution by its leaders. It is more
federal than unitary in character. Whereas, India is more unitary than federal and we can
even say that it is a quasi-federal state.

1) The Constitution of US is very rigid than the Indian Constitution

The Constitution of US is very precise and rigid running into only a few pages, whereas the
Constitution of India is very bulky containing as many as XXII parts, 395 articles, and ten
schedules. Since the US Constitution is very rigid, the provisions meant for amending the
Constitution are also very rigid and more formal. The US Constitution has been amended
only 27 times. Whereas, the Indian Constitution, which came into force in the year 1950, has
so far been amended 94 times. Therefore, it is easy to amend the Indian

2) While the US has the Presidential form of Government, India has the Parliamentary
form of Government

In the US, the President is the head of the state and so his government is popularly referred as
the Presidential form of government. India, on the other hand, has a Parliamentary form of
Government as the Prime Minister with his cabinet exercises real power with the President
being only a nominal head. The President of US holds office for a period of four years while
the Indian Prime Minister holds power for five years as long as his political party enjoys a
majority in the Lok Sabha. While the US follows the bi-party system, India has a multi-party
system and a complicated process of election.

4) Differences in the judicial system between US and India

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US being a developed country have an advanced judicial system. The judicial system of India
is however rapidly developing. A Judge in the US holds office as long as he is capable of
performing his duties. Indian Constitution on the other hand states that a District judge holds
his post till the age of 58, a High Court judge holds till the age of 62 and a Supreme court
Judge retires at the age of 65.

5) Difference in citizenship

The Constitution of India recognises single citizenship. On the other hand, USA Constitution
provides for a double citizenship that is a US citizen can have citizenship of two countries,
USA and some other country.

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 CHAPTER-5

NATURE OF THE INDIAN CONSTITUTION: FEDERAL OR QUASI-

FEDERAL?

Whether the Indian Constitution is Federal or Quasi-Federal in nature?

“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.”16

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 debates17.

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

16
Constitution of India, 1950
17
4.2. Federal Structure of the Constitution, Vol 1

22
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.18

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.19

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.

18
State of West Bengalv. Committee for Protection of Democratic rights,West Bengal,AIR 2010 SC 1476
(1483)
19
State of W.B.v.Kesoram Industries Ltd., (2004) 10 SCC 201 : AIR 2005 SC 1646

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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.20

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…”21 It has also been called Pragmatic Constitution in
the words of Justice Ahmadi.22 The phrase ‘semi-federal’ was used for India in State of
Haryana v. State of Punjab, whereas in Shamsher Singh v. State of Punjab23, the constitution
was called ‘more unitary than federal.’

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
20
Prakash Karat- “Federalism and the political system in India”
21
State of Rajasthan v UOI, 1977
22
S.R. Bommaiv.Union of India,1994 3 SCC 1
23
1974 AIR 2192

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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 India24that 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 Centre. 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.

24
Supra at 29

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