CONSTITUTION AND FEDERALISM

 India has a hybrid system of government. The hybrid system

combines two classical models: the British traditions, drawn
upon parliamentary sovereignty and conventions, and
American principles upholding the supremacy of a written
constitution, the separation of powers, and judicial review.
 As a hybrid political system, India has contributed to a
completely different politico-constitutional arrangement,
described as ‘parliamentary-federalism’.
 Parliamentary federalism is thus a creative institutional
response to democratic governance suitable for India’s
peculiar socio-political milieu.
 In devising the Union-State relations, the founding fathers
were influenced by the principles underlying the Constitutions
of Canada and Australia, which had parliamentary federalism,
and the United States, which had a presidential system. + GoI
Act 1935

 As it finally emerged, the Constitution has important ‘federal’

features but cannot be characterized as federal in its classical
sense.
 Ambedkar had articulated, ‘unitary in extra-ordinary
circumstances such as war and other calamities and federal
under normal circumstances’. Hence, India is described as ‘a
union of states’ where the union is ‘indestructible’ but not the
constituent states because their contour and identity can be
‘altered’ or even ‘obliterated’.

 The Constituent Assembly, Jawaharlal Nehru and Vallabhbhai

Patel in particular, ‘worried that a more potent federalism in
India would weaken feelings of national unity in the country
and would make it harder for governments in the Centre to
push ahead with the ‘social revolution’ that was needed to
secure economic development’.

 Despite inputs supporting a weak Centre, the 1950

Constitution provided a scheme of distribution of power that
was heavily tilted in favour of a strong Centre.

 The decision to go for a strong Centre even at the cost of

regional autonomy was perhaps conditioned by pragmatic
considerations of maintaining national integrity that received a
severe jolt with the acceptance of partition.
  To avoid friction between the Centre and the constituent states
in future, the Constitution incorporated an elaborate
distribution of governmental powers·legislative,
administrative, and financial between the Union and provincial
governments.

Federal Features of the Indian Union

 Governments at two levels – centre and states
 Division of powers between the centre and states – there are
three lists given in the Seventh Schedule of the Constitution
which gives the subjects each level has jurisdiction in:
o Union List
o State List
o Concurrent List
 Supremacy of the constitution – the basic structure of the
constitution is indestructible as laid out by the judiciary.
The constitution is the supreme law in India.
 Independent judiciary – the constitution provides for an
independent and integrated judiciary. The lower and
district courts are at the bottom levels, the high courts are
 at the state levels and at the topmost position is
the Supreme Court of India. All courts are subordinate to
the Supreme Court.
Unitary Features of the Indian Union
 The flexibility of the constitution – the constitution is a blend of
flexibility and rigidity. Certain provisions of the constitution
can be easily amended. In case the amendments seek to change
aspects of federalism in India, the provision to bring about
such amendments is not easy.
 More power vests with the Centre – the constitution
guarantees more powers with the Union List. On the
Concurrent List, the parliament can make laws that can
override the laws made by a state legislature on some matters.
The parliament can also make laws regarding certain subjects
in the State List. (Read about the Union and Concurrent List
mentioned in the 7th Schedule of the Constitution; linked in the
article.)
 Unequal representation of states in the Rajya Sabha – the
representation of the states in the upper house is based on the
states’ populations. For example, Uttar Pradesh has 31 seats
and Goa, 1 in the Rajya Sabha. In an ideal federal system, all the
states should have equal representation.
 The executive is a part of the legislature – in India, the
executive in both the centre and the states is a part of the
legislature. This goes against the principle of division of
powers between the different organs of the government.
 Lok Sabha is more powerful than the Rajya Sabha – in our
system, the Lok Sabha is more powerful than the upper house
and unequal powers to two houses is against the principle of
federalism.
 Emergency powers – the centre is provided with emergency
powers. When an emergency is imposed, the centre has
increased control over states. This undermines the autonomy
of the states.
 Integrated judiciary – the judiciary in India is integrated. There
is no separate judiciary at the centre and the state levels.
 Single citizenship – in India, only single citizenship is available
to citizens. They cannot be citizens of the state as well. This
helps in increasing the feeling of nationality as it forges unity
amidst regional and cultural differences. It also augments
fundamental rights such as the freedom of movement and
residence in any part of the nation.
 Governor’s appointment – the governor of a state acts as the
centre’s representative in the state. The state government does
not appoint the governor, the centre does.
 New states formation – the parliament has the power to alter
the territory of a state by increasing or reducing the area of the
state. It can also change the name of a state.
 All India Services – through the All India Services such as the
IAS, IPS, IRS, etc. the centre interferes in the executive powers
of the states. These services also offer uniformity in
administration throughout the nation.
 Integrated election machinery – the Election Commission of
India is responsible for conducting free and fair elections at
both the centre and the state levels in India. The members of
the EC is appointed by the president.
 Veto over states bills – The governor of a state can reserve
certain kinds of bills for the president’s consideration. The
president enjoys absolute veto on these bills. He can even
reject the bill at the second instance that is when the bill is sent
after reconsideration by the state legislature. This provision is
a departure from the principles of federalism.
 Integrated audit machinery – the president of the country
appoints the CAG who audits accounts of both the centre and
the states.
 Power to remove key officials – the state government or state
legislature does not have the authority to remove certain key
government officials even at the state level like the election
 commissioner of a state, judges of the high courts, or the
chairman of the state public service commissions.

FEDERALISM IN INDIA
 The classical federations, such as the USA, Australia, and
Canada are the outcome of ‘the coming together’ syndrome
because the existing sovereign polities voluntarily enter into
an agreement to pool their sovereignty in a federation, while
most of the contemporary federations are illustrative of
‘holding together’ federations due to circumstances in which
the Centre agreed to ‘devolve’ power for holding the federal
units together.

 Generally speaking, whether a political system is federal is

determined by these five criteria which are as follows:
1. Dual or two sets of government-one at the Centre, national or
federal and the other at state or provincial levels.
2. Written Constitution-list of distribution of powers though the
residuary powers generally rest with the federal government.
3. Supremacy of the Constitution.
4. Rigidity of the Constitution-the Constitution can be amended by a
special majority followed by ratification by at least half of the states,
barring ‘the basic structure’ of the Constitution.
5. The authority of the courts as regards the interpretation of the
constitutional provisions.

 ‘[T]he Draft Constitution has,’ argued Ambedkar, ‘sought to

forge means and methods whereby India will have Federation
and at the same time will have uniformity in all the basic
matters which are essential to maintain the unity of the
country’
 Three important means capable of holding the country
together were thus identified: (a) a single judiciary; (b)
uniformity in fundamental laws, civil and criminal; and (c) a
common All India Civil Service to man important posts.
 Its emergence and later consolidation in India is slightly
paradoxical since it is the product of two conflicting cultures:
one representing the national leaders’ ‘normative’ concern for
India’s multicultural personality, shaped by its unique history
and geography, and the other underlining their concern for
unity, security, and administrative efficiency.

THE FEDERAL ARRANGEMENT

The British colonial rule introduced federalism in phases,
partly in response to the nationalist demand for
decentralization of power and partly to implement the liberal
principle of ‘self-rule’ in colonies.
The legacy of colonialism, partition, and the vision of nation
building-all contrived to create a centralized federation that
hardly corresponds with its classical form.
Two major constitutional inputs from the colonial past seem to
be critical in the evolution of federalism in India. First, the
1918 Montague-Chelmsford Report on constitutional reforms
and later the 1929 Simon Commission Report strongly argued
for decentralization of authorities among the constituent
provinces as perhaps the best administrative device in
‘politically-fragmented and strife-ridden India’.
The Government of India Act, 1935 provided for the
distribution of legislative jurisdictions with the three-fold
division of powers into federal, provincial, and concurrent
Lists, the establishment of a federal court and laid the
foundation of fiscal federalism in independent India.
Indian federalism is a distinct case of ‘asymmetrical’ federalism
that characterizes a federation in which some of the units are
accorded weightage under imperative of compelling historical
or cultural factors necessitating ‘special constitutional
recognition’.
One comes across four kinds of asymmetries in Indian
federation: first, there is universal asymmetry with regard to
the constituent provinces because they are represented in
Rajya Sabha on the basis of their demographic strength unlike
the American system where each state has two members in the
Senate regardless of the strength of population.
Second, there are specific asymmetries as regards
administration of tribal areas, intra-state regional disparities,
law and order situation and fixing the number of seats, as per
Article 371 of the Constitution, in states like Maharashtra,
Gujarat, Manipur, Assam, Andhra Pradesh, Arunachal Pradesh,
Sikkim, and Goa.
Third, the areas identified as union territories, altogether
seven in 2006, enjoy special constitutional status. Last, there is
a stark asymmetry vis-à -vis Jammu and Kashmir, Nagaland,
and Mizoram. While Article 370 accords ‘special status’ to
Jammu and Kashmir, Article 371 guarantees special privileges
to Nagaland and Mizoram.

As a constitutional format, federalism is constantly reinvented

and the governing principles are thus regularly redefined. In
recent times, the federalization process has been augmented
by the more active role of the new incumbents of federal
institutions-the President, the Election Commission, and the
Supreme Court of India.

Austin reveals, the most singular aspect of the drafting of the

federal provisions was the relative absence of conflict between
the ‘centralizers’ and the ‘provincialists’, for, the framers had
embraced the doctrine of ‘cooperative federalism’ as the
guiding spirit of the Indian federal set-up.
During the reign of Jawaharlal Nehru, in the formative years of
the constitutional government in India, the Centre-state
relations progressed fairly, if not absolutely, well seemingly
due to the existence of the Congress led governments at both
the Centre and the states.
Austin- Institutionalizing centralization - the underlining
characteristics of Nehru’s regime were the harmonious co-
existence with the state governments on the one hand, and the
apparently centralizing moves justified by the circumstantial
compulsions of the times, on the other.
Indira Gandhi-tried to change the constitutional character of
the federal relations in the country through the Twenty-fourth
and Twenty-fifth Amendments evoking sharp, if not
subversive, reactions from the non-Congress state
governments, the staunchest of which came in the form of the
Tamil Nadu government appointed Rajamannar Committee.
Subsequently, the opposition chief ministers raised a banner of
‘constitutional Revolt’ during early 1980s in protest against the
subtle moves to turn the country into a unitary system, putting
Indira Gandhi in a tight position, to which she responded by
appointing Sarkaria Commission on Centre-State Relations in
1983 in order to have comprehensive review of the Centre-
state relations in the country.

In the famous 1994 Bommai judgement, the Supreme Court

quashed the decision of the Union government to impose
president’s rule in Karnataka under Article 356 by underlining
that:
[D]emocracy and federalism are essential features of the
Constitution and are part of its basic structure.⁄ States have an
independent existence and they have as important role to play
in the political, social, educational and cultural life of the
people as the Union. They
are neither satellites nor agents of the Centre.
The unanimous judgement by the nine-judge constitutional
bench held that any proclamation under Article 356 is subject
to judicial review. The judgement further endorsed that Article
74(2) does not bar the court from summoning the material
that guides the cabinet in deciding in favour of imposition of
president’s rule in a state. This path-breaking ruling radically
altered the Centre-state relations by ‘the federal compact of a
new institutional force’.
Furthermore, the political processes however have led to the
gradual but steady importance of inter-governmental agencies
like the National
Development Council (NDC) and Inter-State Council (ISC).
Identified as ‘federal’ agencies, these structures are clearly
those with potentials for radically altering the governance
format.