DR.

RAM MANOHAR LOHIA NATIONAL LAW UNIVERSITY

ANALYSIS OF FEDERALISM IN INDIA AND ITS CHANGING

ASPECTS

SUBMITTED BY:-
SUBMITTED TO:-

KINJAL SINGH DR. A K TIWARI

180101067 ASSOCIATE

PROFESSOR
B.A, LL.B. (HONS.) CONSTITUTIONAL

LAW

ACKNOWLEDGEMENT

I would like to convey my gratefulness to a lot many people who have helped and
supported me in making this project.
I would like to thank my family and friends who have always been supportive of my
endeavours.
Words are inadequate in offering my deep sense of gratitude to
Professor A K Tiwari for his precious guidance. From assigning me this topic to
instructing me on how I should move forward with my work, his enthusiasm and
knowledge has always been of utmost importance.
I know that despite my best efforts some discrepancies might have crept in which I
believe my humble Professor would forgive.
Thanking You All

KINJAL SINGH
CONTENTS

ACKNOWLEDGEMENT.....................................................................................................................2

INTRODUCTION...............................................................................................................................4

FEDERALISM – ORIGIN AND POLITICAL PHILOSOPHY .................................................................5

FEDERALISM – ONE WORD, MANY DEFINITIONS ...........................................................................6

DEVELOPMENT OF INDIAN FEDERALISM......................................................................................8

INDIA – A FEDERAL STATE............................................................................................................9

UNION LIST..................................................................................................................................9

STATE LIST..................................................................................................................................9

CONCURRENT LIST.....................................................................................................................9

THE CONSTITUTIONAL SCHEME OF FEDERALISM......................................................................11

JUDICIAL CHARACTER OF FEDERALISM IN INDIA ......................................................................13

CHANGING ASPECTS AND ISSUE OF INDIAN FEDERALISM .........................................................15

CONCLUSION.................................................................................................................................18

BIBLIOGRAPHY..............................................................................................................................19
INTRODUCTION

Federalism in India came as a socio-political advancement. The author in this article would like

to show the history of Federalism in India and its current scheme in the present-day Constitution

of India. Merriam-Webster defines the term Federal as, ‘formed by a compact between political

units that surrender their individual sovereignty to a central authority but retain limited residuary

powers of government’.1 It is derived from the Latin ‘foedus’, meaning ‘Covenant’; the Federal

idea draws on collaboration, reciprocity, and mutuality.

Federalism is a political tool for dividing and assigning powers so that the central and the local

governments are each its own domain and also in consonance with each other, with a certain

amount harmony. Federalism tones the constitutional apparatus for bringing unity in diversity by

toning the divergent forces of centripetal and centrifugal trends in the country for the attainment

conjoint national targets.

Federalism is a system of government in which power is divided between a central authority and

constituent political units. Indian Federalism is different from the type of Federalism practiced in

the countries like the United States of America.

1
Defenition of ‘Federal’, <https://www.merriam-webster.com/dictionary/federal> accessed 28 March 2019.
FEDERALISM – ORIGIN AND POLITICAL PHILOSOPHY

Idea of Federalism originated from religious institutions. The Bible is thought of as the first

instance where problems of Federal Polity were discussed. 2 It was first seen in practice in

Ancient Israel.3 In India, between 321 and 185 B.C. in Magadha, it was the Mauryans who

brought together numerous republics and kingdoms. The Mughals under Sher Shah’s Revenue

System and Akbar’s Province System, provide a great example of a federal government.4

In Political Theory, movements associated with the establishment or development of federations

can exhibit either centralizing or decentralizing trends. For example, in USA, Federalists

advocated for a strong central government whereas in Spain and post-war Germany, federal

movements have sought decentralization.

Federalism as a political structure has been seen as a useful way to prevent violence or

disturbance among different groups because it allows certain groups to legislate at the

subnational level.

2
What Bible Says about Governemnt, <https://tifwe.org/bible-says-about-government/> accessed 29 March 2019.
3
Political Theories in Religion,
<http://oxfordre.com/religion/view/10.1093/acrefore/9780199340378.001.0001/acrefore-9780199340378-e-20>
accessed 29 March 2019.
4
Romila Thapar, A History of India (Penguin, 1966) 82.
FEDERALISM – ONE WORD, MANY DEFINITIONS

Constitutions have been classified by C.F. Strong in the following heads;

- Unitary or Federal

- Unwritten or Written

- Flexible or Rigid

- Parliamentary or Non-Parliamentary

DD Basu defines Federation as, ‘A federal State is a union of several States into a central or

federal government. The federation is formed where Centre and States derive power from the

Constitution which distributes governmental power’.5

AV Dicey defines Federalism as, ‘Federalism is Union of States. Federalism means the

distribution of force among a number of coordinate bodies, each originating in and controlled by

the Constitution’.6

KC Wheare defines Federalism as, ‘Federal government is more than simply association of

States. It is association of States in which government is divided between general authority and

regional authorities which are not subordinate to one another but coordinate among each other’.7

Features of Federalism

5
D D Basu, Comparative Federalism (Wadhwa & Co, 2008) 21.
6
A V Dicey, Introduction to the Study of the Law of the Constitution (Macmillan, 1908) 140.
7
K C Wheare, Federal Government (OUP, 1963) 11.
The best way to comprehensively understand the federal system is to learn about its features.

These characteristics combined to reflect the true essence of federalism. The essential feature,

which is the definition of federalism is that there are two levels of governance in the country at

least. There can even be more. But the entire power is not concentrated with one government.

All levels of governance will govern the same citizens, but their jurisdiction will be different.

This means that each level of government will have a specific power to form laws, legislate and

execute these laws. Both of the governments will have clearly marked jurisdiction. It will not be

that one of the governments is just a figurehead government.

Another important feature is that the constitution must guarantee this federal system of

government. Which means the powers and duties of both or all governments must be listed down

in the constitution of that country hence guaranteeing a federal system of governance.

As Stated above the federalism of a country must be prescribed by the constitution. But it is also

important that just one level of government cannot make unilateral changes or amendments to

the important and essential provisions of the constitution. Such changes must be approved by all

the levels of the government to be carried through. Yet there is still a possibility that a conflict

may arise between the two. Well in a federal State, it will fall upon the courts or rather the

judiciary to resolve this conflict. The courts must have the power to interfere in such a situation

and reach a resolution.

While there is power sharing between the two levels of government, there should also be a

system in place for revenue sharing. Both levels of government should have their own

autonomous revenue streams. Because if one such government depends on the other for funds to

carry out its functions, it really is not autonomous in its true nature.
DEVELOPMENT OF INDIAN FEDERALISM

The genesis of the present federal system in India lies in the Simon Report of May 1930 which

supported the idea of a federal government in India. This support for the federal form of

government for the India of the future was further affirmed in the in the First Round Table

Conference of 1930.8 Mr. Ramsay Mac Donald, the then Prime Minister of Great Britain,

speaking at the final plenary session of that Second Round Table Conference said that “There is

still difference of opinion, for instance as to the composition and powers of the Federal

Legislature, and I regret that owing to the absence of a settlement of the key questions of how to

safeguard the Minorities under a responsible Central Government, the Conference has been

unable to discuss effectively the nature of the Federal Executive and its relationship with the

Legislature”. 9

After the Third Round Table also flopped significantly, the British Government issued a White

Paper in March 1933, which proposed a new Indian Constitution with an accountable

government in the provinces and the principle of dyarchy at the Centre. As a result of the

publication of the White Paper, a Joint Select Committee of both Houses of Parliament was

appointed by His Majesty’s Government in April 1933 to evaluate and survey the proposals of
8
D D Basu, Comparative Federalism (Wadhwa & Co, 2008) 25.
9
3rd Final Plenary Session, Second Round Table Conference, (1st December 1931) 145.
the White Papers. These proposals were enacted into law and received the assent of the British

Crown and became ultimately the basis for the Government of India Act of 1935.

The significance of the Act of 1935 lies in the fact that the provinces were endowed with a legal

personality under a national scheme, and that the character of the national scheme was ultimately

a federal system. This meant the abolition of the principle of dyarchy at the provincial level and

its retention at the Centre.

INDIA – A FEDERAL STATE

India is a federal country. But not once in the constitution is the word “federation” ever

mentioned. Instead what is said is that India is a “Union of States’. Actually, many historians

believe that India is a quasi-federal country. It means it is a federal State with some features of a

unitary government. The constitution of India has essentially prescribed a federal State of

government. There are several levels of government, The Government at the Centre, which is the

Lok Sabha and the Rajya Sabha, then the various State governments, the Vidhan Sabhas, and the

Vidhan Parishad. And finally, we have the Municipal Corporations and the Panchayats, which

are forms of local governance.

Our constitution makes a clear demarcation about legislative powers and jurisdictions. It is done

through the three lists.10

UNION LIST: This includes subjects that carry national importance, like defense, finance,

railways, banking etc. So, such subjects only the Central Government is allowed to make laws.

STATE LIST: Includes all matters important to the functioning of a particular trade like

transport, Trade, Commerce, agriculture etc. The State government is the deciding authority for

framing laws on these subjects

10
Constitution of India, sch VII.
CONCURRENT LIST: This list includes topics on which both the Union and the State

Government can make laws. These are related to education, forests, trade unions etc. One point

to be noted is if the two governments are in conflict with these laws, the decision of the Union

Government will prevail, it is the final authority.

But the federal construction that India follows today is poles apart from what the British came to

us with. The biggest hint of federalism in India lies in the history of its foundation in 1947 when

after the Partition of Pakistan from the Indian subcontinent all the provinces, presidencies, and

princely States were united under an instrument of accession that signifies that all these

previously sovereign or reliant States came together to be called one nation-State. The

development and the journey of India as a federal country can be broadly understood by dividing

it into two parts: The constitutional/legal provisions and the face of federalist India brought in by

the Judiciary.

Indian federation was not a product of coming together of States to form the federal union of

India. It was rather a conversion of a unitary system into a federal system. It is a compromise

between two conflicting considerations such as autonomy enjoyed by States within the

constitutionally prescribed limit (State List) and the need for a strong Centre in view of the unity

and integrity of the country (Union List).

Federal Features of the India Union

Two governments i.e. Union Government and State governments, division of powers between

the union and its constituents (Seventh Schedule of the Constitution contains three lists such as

the Union List, State List, and Concurrent List), supremacy of the Constitution (Basic structure

of the Constitution is made indestructible by the Judiciary), partial rigidity of the Constitution,

independent Judiciary, Bicameralism

Unitary Features of the Constitution

A strong Centre – The Union Government becomes all powerful in certain times like

emergencies. Article 200 of the Constitution of India demands that the States must comply with

the central laws. Other features include - Single Constitution, Single citizenship, Flexibility of

Constitution, Integrated judiciary, Appointment of the Centre, All India Services, and

Emergency provisions.

THE CONSTITUTIONAL SCHEME OF FEDERALISM

The constitution of India is unique with respect to its extreme detail and substance. The

uniqueness of the Indian constitution is also in the fact that although it is federal in character, it

declares India to be a union of States.11

The constitution provides for a single citizenship like the United Kingdom and unlike the United

States America that provides for dual citizenship. Single citizenship gives the constitution a

unitary facet where all citizens are united under one identity as an “Indian”.

The constitution of India establishes a dual polity with the jurisdiction of making laws on

different subject matters is divided between union and the State governments. 12 The

distinguishing feature here is that the residual powers lie in the hands of the central

government.13 This attribute which is different than other countries takes makes the Indian

federalism a bit intricate to fathom.

Another feature that marks India to be a federal country in nature is the written constitution.

Indian constitution is the lengthiest and the bulkiest constitution in the world which clearly

11
Constitution of India, art 1.
12
Constitution of India, sch VII.
13
Constitution of India, art 248.
defines everything from rights to remedies. This strengthens the federal nature of the country and

assures security to the State and citizens.

The powers in the country are split amongst the three pillars of democracy: The Legislature, the

Executive, and the Judiciary. All these three props are complementary and supplementary to

each other with an independent judiciary which is the upholder of the supremacy of the

constitution and get to the bottom of disagreements flanked by Centre and States or between 2

States. This guarantees a stringent remedial system. But is that sufficient? The judiciary although

independent is an integrated institution and thus gives the essence of unitary government to the

constitution. Other terms of the same constitution provide for the President to appoint the

constitutional heads of all States i.e. Governors14 and they hold their office to the desire of the

President. Doesn’t that mean that the heads of the State are appointed to the pleasure of the

central government? One may wonder.

The constitution of India is both stern and elastic at the same time. The rigidity of the

constitution is an indispensable feature of federalism. But the same rigid constitution has hit a

century of amendments in less than 75 years of Independence.

The Constitution provides for a bicameral legislature consisting of an Upper House (Rajya

Sabha) and a Lower House (Lok Sabha). The Rajya Sabha is the stand-in for the States of Indian

Federation, while the Lok Sabha represents the people of India as a whole. The Rajya Sabha

(even though a less powerful chamber) is required to conserve the federal stability by protecting

the interests of the States against the uncalled-for interference of the Centre.

Other than the aforesaid provisions the following provisions of the constitution clash with the

federal nature of it:

14
Constitution of India, art 155 & 156.
Union has the power to make new States or alter the boundaries of existing States.15

Union has the power to make laws on State matters and if both State and union adjudicate on a

certain matter, the latter will prevail.16

The emergency articles of the constitution when conjured up, give a unitary character.17

JUDICIAL CHARACTER OF FEDERALISM IN INDIA

The Indian judiciary has time and again heard a number of cases involving the issue of the

federal character of the Indian constitution. To understand what it had to say I have collected a

few cases in a chronological order that will help in understanding the judiciary’s take on this.

State of West Bengal v. Union of India18:

“The Constitution of India is not truly Federal in character. The basis of the distribution of

powers between the Union and States is that only those powers which are concerned with the

regulation of local problems are vested in the States and the residue, especially those which

tend to maintain the economic industrial and commercial unity of the country are left to the

Union.”

State of Rajasthan v. Union of India19:

“In a sense, the Indian Union is federal. But the extent of federalism in it is largely watered-

down by the needs of progress and development of the country which has to be nationally

integrated, politically and economically co-ordinated and socially, intellectually and spiritually

uplifted. With such a system, the States cannot stand in the way of legitimate and

15
Constitution of India, art 2 & 3.
16
Constitution of India, art 249, 250, 251 & 253.
17
Constitution of India, art 352, 356 & 360.
18
State of West Bengal v Union of India, 1963 AIR 1241.
19
State of Rajasthan v Union of India, 1977 AIR 1361.
comprehensively planned development of the country in the manner directed by the Central

Government

State of Karnataka v. Union of India20:

“The Indian Constitution is not federal in character but has been characterized as quasi-federal in

nature. Even though the executive and legislative functions of the Centre and States have been

defined and distributed, there runs through it all a thread or rein in the hands of the Centre in

both the fields.”

Kesavananda Bharati v. State of Kerala21:

Some of the judges, in this case, held federalism to be a part of the basic structure of the

constitution which means it can’t be tampered with.

S.R. Bommai v. Union of India22:

In this case, 4 different opinions were given by judges;

1. Justice Ahmadi: Because of no mention of the words like ‘federal’ he declared it to be a quasi-

federal constitution.

2. Justice Sawant & Kuldip Singh: Federalism is an essential feature of the constitution.

3. Justice Ramaswamy: Declared India to be an “Organic Federation” designed to suit the needs

of the parliament.

4. Justice Jeevan Reddy and Justice Agarwal: Federalism in the constitution has a different

meaning in accordance with the context.

This case posed restrictions on the arbitrary use of Article 356.

CHANGING ASPECTS AND ISSUE OF INDIAN FEDERALISM

20
State of Karnataka v Union of India, 1978 AIR 68.
21
Kesvananda Bharti v State of Kerela, (1973) 4 SCC 225.
22
S R Bommai v Union of India, 1994 AIR 1918.
1. Regionalism

It is considered one of the significant challenges to federalism in India. Federalism best thrives as

a democratic system when it mitigates the centralization of power sharing between the Centre

and the States. Recent demands like four-fold division of Uttar Pradesh and the creation of

Gorkhaland from West Bengal are instances of aggressive regionalism that pose a threat to the

federal structure of India.23

2. Division of Powers

Unlike the USA and Australia, in India distribution of power is made under Three Lists found in

the Seventh Schedule of the Constitution. The powers of both the Central and State Governments

are specifically enumerated in the Union list and State list respectively while powers mentioned

in the Concurrent list are enjoyed by the two sets of governments. The residuary powers are

vested in the Central government. Article 200 (reservation of State Bills by the Governor for

consideration of the President), emergency provisions under Article 352, 356 and 360 and

compulsory compliance by the States with the executive power of the Centre under Article 256

and 257 amounts to centralization of power which has been the major concern among the States.

Centralization is as such a threat to Indian federalism.

3. Absence of Fiscal Federalism

The Indian Constitution, while expressly vesting the Centre with greater powers of taxation, also

provides for an institutional mechanism — the Finance Commission — to determine the share of

the States in the Central tax revenues by way of correcting this imbalance.

Despite the enlargement of the shareable pool under the 80th Amendment which includes all

central taxes, the revenue accruals of the Centre and the States have not seen any major changes.

23
Yatharth, ‘Division of UP, a forgotten issue’ (TheQuint, March 2017)
<https://www.thequint.com/voices/blogs/uttar-pradesh-divide-four-parts-bsp-sp-elections-mayawati-akhilesh-
yadav> accessed 01 April 2019.
Asymmetrical sharing of revenue and resource crunch at the periphery results in uneven

development across the country. The current Goods and Services Tax measure is feared by many

States to be against fiscal federalism in India. It has amalgamated the various taxes into a single

tax, procurement of which will then be divided among States in a prescribed ratio. Many States

in India demand for more financial autonomy in India.24

4. Centralized Amendment Power

In a typical federation, the power of amendment to the Federal Constitution lies on a shared basis

between the federation and its units. In India, the power of constitutional amendment lies with

the Centre under Article 368 and other provisions.

5. Office of the Governor

The office of the Governor for each State in India has been a sensitive issue as it sometimes

poses a threat to the federal character of Indian Union. Centre’s visible arbitrariness in misusing

such constitutional office has been the subject of acrimonious debates and divergent opinions in

the country.

The imposition of President’s Rule in Arunachal Pradesh in January 2016, while there was an

elected government in the State, created a bizarre incidence in the constitutional history of India.

The Supreme Court on July 13 termed Governor’s decision unconstitutional ordered restoration

of Congress government in Arunachal Pradesh.25

6. Single Constitution and Citizenship

Unlike the Constitution of the USA, the Constitution of India lays down the constitution for the

States as well and no State except Jammu and Kashmir has right to decide its own constitution.

24
Hemant Singh, ‘Important Amendments’ (JagranJosh, September 2017) <https://www.jagranjosh.com/general-
knowledge/important-amendments-to-the-constitution-1292048897-1> accessed 1 April 2019.
25
‘Arunachal Political Crisis: A Timeline’ (TheHindu, December 2016)
<https://www.thehindu.com/news/national/other-States/Arunachal-political-crisis-A-timeline/article14983750.ece>
accessed 01 April 2019.
The Indian Constitution, unlike the other federal constitutions of the world, introduces single

citizenship. It is based upon the idea of ‘one nation one citizenship’. All are citizens of India

irrespective of whichever State he/she lives in. The States don’t confer any separate status as a

citizen of the State.

7. Integrated Services

The integrated judiciary is a typical feature of Indian federation. Unlike typical federations, in

India Supreme Court is the apex court and all other courts are subordinate to it. The States don’t

have separate independent courts dealing specially with State matters. Also, the machinery for

election, accounts, and audit in India is integrated.

8. Issue of Religion

India is a fine example of religious heterogeneity that sometimes gives rise to turmoil to weaken

the federation. But the religious process need not be always divisive. So long as there is a

reasonable tolerance on the part of the people and a genuine secular policy on the part of the

government, religion may not cause imbalances in a federation.

9. External Forces

External forces also create hindrances for a federation. The tension in the North Eastern States in

India is due to the interference of neighboring countries. China’s claim on some portion of the

territory of Arunachal Pradesh on LAC threats the territorial integrity of India.26

CONCLUSION

The motto of “Unity in Diversity” has always been very important to India and a federal

government helps to establish a country with mutual tolerance and existence. However, for a

26
‘China Destroys 3000 Maps’ (PTI, March 2019) <https://www.thehindu.com/news/international/china-destroys-
30000-incorrect-world-maps/article26642135.ece> accessed 01 April 2019.
country like India which is divided on the linguistic and communal basis, a pure federal structure

would lead to disruption and division of States. With too much power given to a State, it will

want to shift away from the union and establish its own government.

To overcome all this and the aforementioned demerits we need to strike a balance between both

unitary and federal features of the country. States should be autonomous in their own sphere but

they can’t be wholly independent to avoid a State of tyranny in the nation. People of India need

protection and security from such things and that is what the constitution of India with its special

provisions provides. It establishes a State which is both a union and a federation at the same time

and thus gives India a structure of a quasi-federal government which has united the diversity of

India for past 71 years and will do the same for the centuries to come.

BIBLIOGRAPHY

Online Resources:
https://www.merriam-webster.com/dictionary/federal
https://tifwe.org/bible-says-about-government/
https://www.thequint.com/voices/blogs/uttar-pradesh-divide-four-parts-bsp-sp-elections-mayawati-akhilesh-yadav
https://www.jagranjosh.com/general-knowledge/important-amendments-to-the-constitution-1292048897-1
https://www.thehindu.com/news/national/other-States/Arunachal-political-crisis-A-timeline/article14983750.ece
https://www.thehindu.com/news/international/china-destroys-30000-incorrect-world-maps/article26642135.ece
http://oxfordre.com/religion/view/10.1093/acrefore/9780199340378.001.0001/acrefore-9780199340378-e-20

Books:
Romila Thapar, A History of India (Penguin, 1966).
D D Basu, Comparative Federalism (Wadhwa & Co, 2008).
A V Dicey, Introduction to the Study of the Law of the Constitution (Macmillan, 1908).
K C Wheare, Federal Government (OUP, 1963).
D D Basu, Comparative Federalism (Wadhwa & Co, 2008).

Statutes and Reports:

3rd Final Plenary Session, Second Round Table Conference
Constitution of India, sch VII.
Constitution of India, art 1.
Constitution of India, sch VII.
Constitution of India, art 248.
Constitution of India, art 155 & 156.
Constitution of India, art 2 & 3.
Constitution of India, art 249, 250, 251 & 253.
Constitution of India, art 352, 356 & 360.

Cases:
State of West Bengal v Union of India, 1963 AIR 1241.
State of Rajasthan v Union of India, 1977 AIR 1361.
State of Karnataka v Union of India, 1978 AIR 68.
Kesvananda Bharti v State of Kerela, (1973) 4 SCC 225.
S R Bommai v Union of India, 1994 AIR 1918.