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Constitutional Law 1
Constitutional Law 1
BHOPAL
TRIMESTER III
CONSTITUTIONAL LAW I
SUBMITTED TO SUBMITTED BY
CERTIFICATE
This is to certify that the research paper titled ―project has been prepared and submitted by
pankaj singh who are currently pursuing their BA LLB(Hons.) at National Law Institute
University, Bhopal in fulfilment of constitutional law I course. It is also certified that this is
an original research report and this paper has not been submitted to any other university, nor
published in any journal.
Date-
Signature of the student-
Signature of Research Supervisor-
ACKNOWLEDGEMENT
The project has been made possible by the unconditional support of many people. I would
like to acknowledge and extend our heartfelt gratitude to miss Kuldeep Kaur. for guiding us
throughout the development of this paper into a coherent whole by providing helpful insights
and sharing her brilliant expertise. I would also like to thank the officials of the Gyan Mandir,
NLIU for helping us to find the appropriate research material for this study.
I am deeply indebted to my parents, seniors and friends for all the moral support and
encouragement.
Pankaj singh
2019 B.A.LLB 53
CHAPTERISATION
STATEMENT OF PROBLEM……………………….
HYPOTHESIS………………………………………………….
INTRODUCTION ………………………………
TYPES OF FEDERALIS……………………………………
1.DUAL FEDERALISM………………
2.COOPERATIVE FEDERALISM……………
3.FISCAL FEDERALISM ……………………….
4.CREATIVE ……………………………….
5.NEW ……………………………………
CONCLUSION …………………………………
BIBLIOGRAPHY…………………………………………………
STATEMENT OF PROBLEM
Problems of revenue generation and sharing between the central government and states.
magic recipe to ensure political integration or economic prosperity. Sometimes they do and
sometimes they do not Disadvantages include: (1) states and local governments compete in
"race to the bottom," (2) federalism does not bring people closer to the government, (3)
citizens suffer because of inequalities across states, (4) policies in one state may undermine
policies in another state, (5) overlap of responsibilities among ...
OBJECTIVE OF STUDY
HYPOTHESIS
Constitution of India is neither purely federal nor purely unitary but a combination of both.
According to the need and demands of circumstances and to meet the aspiration of the
people, there are some provisions in the Indian Constitution which deviates from truly federal
character. It is like a chameleon which can change colour according to environment. Much
will depend upon the role of the President, regional and national parties, the strength of the
political party in power at the Centre and its backing in States. The constitution of India
contains various provisions for inter-state coordination and cooperation. Cooperation and
coordination between the Union and States have been considered necessary for the
development of the country. The Constitution of India, thus, provides for Cooperative
Federalism .
METHOD OF STUDY
This project is largely based on the doctrinal method of data collection.
INTRODUCTION
1
In 1946, scholar Kenneth Where observed that the two levels of government in the US were 'co-equally
supreme'.
2
Law, John (2013) 'How Can We Define Federalism?',
3
Wheare, Kenneth (1946), pp. 31-2.
4
Diamond, Martin (1961) "The Federalist's View of Federalism", in Benson, George (ed.) Essays in
Federalism, Institute for Studies in Federalism, Claremont, p. 22. Downs,
Leading examples of the federation or federal state include the United
States, India, Brazil, Mexico, Russia, Germany, Canada, Switzerland, Argentina, Nigeria,
and Australia. Some also today characterize the European Union as the pioneering example
of federalism in a multi-state setting, in a concept termed the federal union of states.5
The constitution law consist both of legal in the strict sence and of usages commonly called
as convention called as convention 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 preceding in the court of law. Indian constitution is aid
to be a federal structure only because it is said that it has clear demarcation of boundaries
between central and the state government similar to that of u.s. india having legislative and
executive divided between the centre and the state .
5
Law, John (2013), p. 104. http://www.on-federalism.eu/attachments/169_
Dispersion of power between the center and the unite states forming federation
among a number of co-ordinate bodies , controlled by constitution .
Rigidity- neither the centre nor the state has power to amend the provision of
constitution realiting separation of power.
A written constitution
Domination of the constitution- neither of centre or state have power to nullify the
constitution.
India is often also claimed to be non -federal in matter such as the centre can imping upon
the area earmarked only for the state in some cases. Therefore it infringes the principle of
the 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 established a
duple polity with union at the centre and the state at the fringe, each dowered with
autonomous power to be exercised in the field assigned to them respectively by the
constitution. Both are in a way co-ordinate to power of each other.
In the fact the basis 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 power between the executive, legislative
and the judiciary. If court are deprive of the power the fundamental right conferred on the
people of the country will became 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
twinned that no court of law shall pronounce upon the validity of such wipe out and no
limits to the amending power. If the constitution amendment can not be pronounced to be
invalid even if it destroyed the basis feature structure of the constitution.
The first significant case where this issue was discussed at length by apex court was state of
WEST BENGAL vs UNION OF INDIA. The main issue involved in this case was the
exercise of the sovereign power by the Indian state. The legislative competence of the
parliament to enact a law for compulsory acquisition by the union of land and other
properties vested in owned by the state and sovereign authority.
Article 13 of the constitution will them become a non- issue and could be easily neglected
as even ordinary law will scape the scrutiny of the court on the ground that they passed on
the strength of the constitution amendment which is not open to challenge. It was stated
under a leading case deciede by the apex court in the (Minerva mills ltd and other vs union
of india air 1980 sc 1789).
In PRADEEP JAIN vs UNION OF INDIA the apex court expressed as india ia 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 feature in GANAGA
RAM MOOLCHANDANI vs STATE OF RAJSTHAN the supreme court restated Indian
constitution is basically federal in form and is marked by the traditional characteristics of
afederal system namely supremacy of the constitution, division of power between the union
and state and existence independent judiciary. The apex court in ltc ltd vc agriculture
product marked committee expressed a similar opinion.
In the 1978 MANEKA GANDHI vs UNION OF INDIA case the sureme court extended the
doctrine 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 the fundamental right was regarded as a unique
example of judiciary independence in preserving the sanctity of the fundamental right.
Fundamental right can 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 legislative. The
imposition of a state of emergency may lead to a temporary suspension of the right
conferred by article 19 to preserve national security and public order.
The supreme court is an independent authority to declare the act of the union and states ultra
vires if either of them entrenches the defined power of each other. Thus, while in normal
times our constitution is federal in emergency period it became unitary. Therefore, we can
ever call our Indian constitution as semi federal.
TYPES OF FEDERALISM
When the American government was first established in the Constitution it was deemed to
be run under a system of federalism. Federalism, a term that sprouted from the Federalists,
isbe the idea that the governmental sovereignty is divided between the central governing
national authority, and another political unit, such as states. This is exactly like the American
government which has a national government, and the state government. There are some
restrictions on the national government which are listed in the Constitution in Articles 1, 2,
and 3. There are however, no restrictions on the state governments, and in fact, the
Constitution only enables the state governments and guarantees them rights that are not listed
in the Constitution. There are many different types of federalism including dual federalism,
cooperative federalism, creative federalism, fiscal federalism, and new federalism among
others. The three main types of Federalism are;
Dual Federalism is the idea that the union and the state share power but the Federal
Government holds more than the individual states. This is currently how the U.S. system
works6.
Cooperative Federalism is the idea that the federal government and the state government
share power equally. It has never been attempted but it seems unlikely that it would work as
the state governments and the federal government would be locked in a stalemate unable to
reach compromises over important legislation. (1)
6
Annenberg Media. "Federalism: U.S. v. the
States" <http://www.learner.org/courses/democracyinamerica/dia_3/dia_3_topic.html> (1997-2010)
Fiscal Federalism is the type of Federalism in which the money bag controls everything.
This gives Congress massive amounts of power as it is responsible for the American treasury.
It can therefore limit the budget of any other political department it does not belive is
working towards the best interest of America. There have been several instances in our
history however of times when Congress has given full of the treasury to the President. One
example of this would be the Tonkin Gulf Resoultion in 1964 which gave President
Johnsonthe ability to, "expressing the unity and determination of the United States in
supporting freedom and in protecting peace in southeast Asia". Which as anyone can see
leaves a wide space open for interpretaition. To quote Dr Berry, it was essentially a "blank
check’’7
The definition has changed over time and history has shown us that our own actions have
created a few new forms of Federalism in American's times of crisis.
Creative Federalism is common in the United States even now, while New Federalism
was doninant type of governmental federalism from 1960 to 1980, and particuarily during the
Johnson administration in the 1960's. (1)
The key aspects of Creative Federalism or "picket fence federalism" is that the federal
government determined the needs of the states and provided services for them. In this case,
the federal government works directly for the states, and caters to their needs. This involves
common planning between the federal and state governments to achieve goals that work for
the states. These days, creative federalism seems to have been diminished by cooperative
federalism and the rise of the federal governments power which started during FDR's
presidency and escalated from there.
New Federalism was created in response to the power the state governments lost due to the
enforcement of civil rights and President Roosevelts New Deal in the 1960's. This type of
federalism returned rights to the local and state governments and turned federal government
powers over to the lesser governments. President Nixon prominantly enforced this by
returning the provision of block grants and revenue sharing to the state and local
governments.
7
The Gale Group Inc. "Dictionary Definition: Fiscal
Federalism" <http://www.highbeam.com/doc/1O104-fiscalfederalism.html> (2010)
LEGISLATIVE RELATION BETWEEN UNION AND STATES
As regards territory Article 245(1) provides that subject to the provisions of this constitution,
parliament may make laws for the whole or any part of the territory of India. According to
clause (20 of Article 245 a law made by parliament shall not be deemed to be invalid on the
ground that it has extra-territorial operation, i.e. takes effect outside the territory of India. In
A.H. Wadia v. Income tax Commissioner, Bombay8, the Supreme Court Held : “In the case
in the municipal court as a ground for challenging its validity. The legislation may offend the
rules of international law, may not be recognized by foreign courts, or there may be practical
difficulties in enforcing them but these are questions of policy with which the domestic
The Legislature of a state may make laws for the whole or any part of has extra-territorial
operation i.e. takes effect outside the state9. However, there is one exception to this general
rule. A state law of extra-territorial operation will be valid if there is sufficient nexus between
England was a partner in a firm in India. The Indian Income tax Authorities sought to tax the
entire income made by the company. The privy council applied the doctrine of territorial
nexus and held the levy tax valid. It is said that the derivation from British India of a major
8
AIR 1949 FC 18
9
Kochuni Vs. State of Madras, AIR 1960 SC 1080
part of its income for a year gave to a company for that year sufficient territorial connection
to justify its being treated as at home in India for all purposes of tax on its income for that
In State of Bombay v. R. M. D. C.10 the Bombay state levied a tax on lotteries and prize
competitions. The tax was extended to a newspaper printed and published in Banglore but
had wide circulation in Bombay. The respondent conducted the prize competitions through
this paper. The court held that there existed a sufficient territorial nexus to enable the
Bombay state to tax the newspaper. If there is sufficient nexus between the person sought to
be charged and the state seeking to tax him, the taxing statute would be upheld. But illusory
and the liability sought to be imposed must be pertinent to that connection. Whether there is
accordingly.
Delegated or subordinate Legislation may be defined as rules of law made under the authority
of an Act of parliament. Although laws are to be made by the Legislatures, but the
Legislature may by statute delegate its power to other persons or bodies. Such a statute is
commonly known as “the enabling Act” and lays down the broad principles and leaves the
The practice of delegating power to make subordinate legislation has greatly increased in the
1] Pressure on parliamentary time- parliament being a busy body has insufficient time to deal
10
AIR 1957 SC 699
adequately with the increasing mass of legislation necessary to regulate affairs of a complex
modern state.
knowledge of problems which is not expected of the legislators is the legislators in the
and revocable than ordinary legislation. There is enough scope for experimentation.
problems which could not been foreseen when the ‘enabling Act’ was passed and to act
quickly in an emergency.
5] Emergency powers- During the emergency quick and decisive action is necessary and at
the same time it is to be kept confidential. The legislature is not fit to serve this end and
therefore the executive is delegated the powers to make rules to deal with such situations.
The Indian constitution permits subordinate legislation by delegation. Art. 13 (3) provides
that “law” “includes any ordinance, order, bye-law, rule, regulation, notification, custom or
usages having in the territory of India the force of law. The theory of separation of power
power to executive. In the U.S.A. the entire legislative power is vested in congress.
LIMITS-
The limits of delegated legislation have been set out in the various decisions of the courts
after the new constitution came into force. It has been held that the legislature cannot delegate
its essential functions which consist in declaring the legislative policy and laying down the
standard which is to be enacted in to a rule of law with sufficient clearness, and what can be
delegated is the task of subordinate legislation which by very nature is ancillary to the statute
which delegates the power to make it effective. The courts cannot interfere in the discretion
vested in the legislature in determining the extent of the delegated power in particular case.11
In 1929 the Lord Chief Justice, Lord Hewart in his book ‘The New Despotism’ criticized
out the dangers of its abuse. As a result, the committee on ministers Powers was set
up which in its report accepted the necessity for delegated legislation but considered
but the power delegated might be misused and recommended the following modes of
3. The use of “Henry VIII clause” authorizing a minister to amend the enabling
4. exceptional cases.
11
Ajay Kumar Banerjee v. Union of India, (1984) 5 SCC 127, In re the Delhi Laws Act, 1912, AIR 1951 SC 332
TWO TYPES OF CONTROL OVER DELEGATED LEGISLATION-
1. Judicial control.- the courts have power to consider whether the delegated or subordinate
legislation is consistent with the provisions of the ‘enabling Act’. Their validity can be
challenged on the ground of ultra vires i.e., beyond the competence of the legislature. The
courts can declare the parent Act unconstitutional on the ground of excessive delegation
legislative powers under Art. 246 of the constitution. The parent Act may be
constitutional but the delegated emanating from it may come in conflict with some
2. Parliamentary control.- it is the primary duty of the legislature to supervise and control
the exercise of delegated power by the executive authorities. Parliamentary control over
the delegate legislation is exercised at three stages. The first stage is the stage when
power is delegated to the subordinate authorities by Parliament. This stage comes when
the bill is introduced in the legislature. The second stage is when the rules made under the
statute are laid before the Houses of Parliament through the committees on subordinate
legislation. The committee on subordinate legislation scrutinizes the rules framed by the
executive and submits its report to the legislature if the rules are beyond the permissible
limits of delegation. These rules are laid before the legislature and debated in the
legislature. If they are ultra vires questions may be put to the minister concerned and if
necessary even a motion of censure on the minister responsible for the rules and
Art. 262 – 2 provisions 1.Parliament provide law for adjudication of interstate river valley 2
laws River Boards Act, 1956 – River Boards established by Centre on states request,
regulation & development of interstate river valley Inter State water Disputes Act, 1956 –
Central Gov. to set up ad hoc tribunal for interstate river valley disputes, decision final &
binding on parties, NO jurisdiction for S. Court/any other Court, 8 tribunals – 1st Krishna…
8th Mahadayi
Art.263 President can establish, at any time, define the nature of duties but, Article 263 itself
specifies duties Enquiring & advising inter-states disputes [Complementary to Art.131]
Investigating & discussing issues of common interest to Centre & states Making
recommendations & coordination President established councils in the specific subjects
Central Council of Health Central Council of Local Gov. & Urban Development
Regional Councils for sales tax Note: Central Council of Indian Medicine & Homeopathy
set up under acts of Parliament
Council may meet (held in camera) at least thrice in a year, decision by consensus INTER-
STATE COUNCIL Secretariat [ISCS]… For continuity Secretariat ISCS, set up in
1996, headed by secretary to GoI, also Secretariat to Zonal Councils from 2011
Jurisdiction of each state in its own territory, so - Art 261 Full faith & credit to public acts
[legislative & executive] , records and judicial proceedings of the Centre & states Mode of
Proof and effects of such things…Parliament by law Civil judgments executable all over
India…but, NOT penal (criminal)laws
ART. 301 TO 307 – Part XIII Art. 301 – inter and intra state trade, commerce and intercourse
- freedom Art. 302 to 305 – restrictions on above Parliament -in public interest, but no
discrimination [Essential Commodities Act, 1955] With previous sanction by President
state legislature but no discrimination commodity ‘A’ taxable in a state, imported A
taxable Subject to state monopoly/nationalization Parliament can appoint an authority
for ART. 301 TO 307…but NO such authority[in US, yes]
ZONAL COUNCILS Established by States Reorganization Act, 1956 & North – Eastern
council Act, 1971
Factors forming these Councils 1. Natural divisions of the country 2. River systems & means
of communication 3. Cultural & linguistic affinity 4. Requirements of economic development
5. Security, law & order
Federalism is the oldest form of government in the United States. The timelessness of the
Constitution and the strength of the arguments presented by The Federalist Papers offer a
clue to its endurance: the Founders wrote the Constitution so that it would always remain
open to interpretation. Federalism's AMBIGUITY has contributed to its longevity.
REVIEW OF LITRETURE
BIBLIOGRAPHY
Sumit kumar jain, pary politics and centre state relation in india abinav publication
1994.
Om prakesh, centre state financial relation in india, atlantic publisher and dist, 1994
Subh nigam singh, centre state relation in india; major irritant and post sarkaria view,
mittal publication,1991
Kiran pal, tension area in centre stare relation suhrid publication.
http://www.legalservicesindia.com/article/686/Federalism-in-India.html