Assignment

on
Federalism

Submitted To: Submitted By:

Name: -Dr. Princy Yadav Name-Asha
Course- LL.M. (Ist Semester)
Subject- System of Governance

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 FEDERALISM
 General Concept: What is Federalism; types of federalism

 Opinions as to Indian Federalism.

 The theory of interpretation.

 K. C. Wheare’s concept of Federalism.

 Indian Federalism in a Historical perspective.

 Conditions of a traditional Federalism vis-à-vis the Indian Constitution.

 The U.S. Constitution: The real picture.

 Some provisions that allegedly detract from the concept of Federalism in India: An analysis.

 Seervai’s arguments.

 The State of West Bengal v. Union of India.

 Advantages and disadvantages of a federal government

 What can Federalism do for our economy?

 How can Federalism strengthen our education?

 Conclusion

GENERAL

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

AS TO INDIAN CONSTITUTION

There is a difference of opinion among jurists as to the nature of the Indian constitution. The framers of the
constitution classified it as federal. K.C. Wheare says that it is “almost quasi-federal… a unitary state with
subsidiary federal features rather than a federal state with subsidiary unitary features.” Jennings has
characterized it as “a federation with a strong centralizing tendency”. Significantly, no court has till date
clearly pronounced that it is a federal constitution. The report on the centre-state relations and the Sarkaria
Commission reports have also nowhere mentioned that it is a federal constitution. The Supreme Court in
the Keshvananda Bharti case merely mentioned that ‘federal character’ is one of the basic features of the
Indian Constitution.
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 In S. R. Bommai case, the minority judgment led by Ramaswamy J. endorsed that the Indian Constitution
is based on federal principles.

THEORY OF INTERPRETATION

One cannot lay down the theories first and then start interpreting the constitution in the rigid framework of
the theories. That would be a very restricted approach and would lead to fallacies.

Rather the approach should be to first study the constitution and then interpret the theories accordingly in a
flexible framework. Once one believes that the constitution is federal and then interprets the constitution in
that light, this would lead to correct interpretation, but if one lays down the very theory of federalism in the
very beginning, he would be moving in a wrong direction.

K.C. WHEARE’S CONCEPT OF FEDERALISM

Wheare says that in a federal state, the regional governments are independent in their own spheres and are
co-ordinate (equal) to each other. This he calls the Federal Principle. An important aspect of his
definition is the kind of separation to be presupposed: “Existence of more than one government in the same
territory”. But this would lead to anarchy. This fallacy has been done away with by Wheare by defining
central government (Centre) and regional government (states). But the mere existence of general and
regional governments is not enough for a federal state, e.g., by the 1919 Act, the central and provincial
governments were created in India. But these provincial governments were dependent entirely on the Central
Government even in the matters of list of subjects. This could not be said to be a federal Government.
Government may be confederation, quasi-federal, unitary etc. C.F. Strong in 1848 brought about this
difference by taking the example of Germany.
“Earlier it was Statenbund (a federation of states) and later on it became Bundestaat (a federation of state).
In the earlier federation of states, several governments came together into a federation. This was not a federal
government.”
Wheare agrees that the federal principle may be only a dominant principle of a constitution and not
the only principle, in order to make it a federal constitution. He calls the Indian Constitution as a quasi-
federal as the federal principle is not even dominant.

He also distinguishes between a federal constitution and a federal Government. Federal principle may not
be dominant in the constitution but the government federal and vice-versa.

Experience till 1962 in India when Wheare wrote showed that in India neither federal principle nor a federal
government was there.

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This was basically due to the single party rule prevailing in India then. U.S.A., Canada, Australia and
Switzerland could be said to be having both federal principle and federal government.

HISTORICAL PERSPECTIVE
The evolution of the concept of federalism in India should be viewed in its historical perspective in order
to have a proper understanding of the Indian concept of federalism.

The British Crown assumed power under statute 21 and 22 of Victoria (1858) Charter 100. A highly
centralized and unitary set up was arranged as follows:
British Crown

Secretary of State

Governor General [Centralized (full control)]

Governor (provincial)

There was some devolution of powers by the 1919 Act. But this was only for the purpose of decentralization
of government power; the government still remained unitary. The 1935 Act aimed at uniting the provinces
and Indian States into a federation but the Indian States did not join and the aim got defeated. The 1947,
Indian Independence Act carved out a separate dominion for India and the control of British Parliament
was deleted. The Government of the dominion was made a sovereign. The constitution also envisaged a
decentralization of authority for, one, the territory of India was too large to be governed by one central
government alone, and two, the political trends of decentralization could not be reversed. For a greater
degree of economic unity, subjects having impact on matters of common interest were transferred to the
union list. Thus, the powers of the union got enlarged e.g., National Highway (E.23), inter-state trade and
commerce. (E.42) etc.,
“The result was a constitution, that was not true to any traditional pattern of federalism. The legal theory
on which the constitution was based was the withdrawal of all the powers of sovereignty into the people of
this country and the distribution of these powers – save those withheld from both the union and the states
by reason of the provisions of Part III – between the union and the states. [Vide: West Bengal case].

CONDITIONS OF FEDERALISM
Federalism is one of the methods of limiting the government. The conditions to be fulfilled by the constitution
to be federal have been enlisted by the Supreme Court in the “State of West Bengal v. Union of India”)
case (1962):
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1. A contract or agreement between independent and sovereign units to surrender partially them

authority in the common interest and vesting it in a union and retaining the residue of the authority in
the constituent units.
2. Ordinarily each constituent unit has its separate constitution by which it is governed in all matters
except those surrendered to the union and the constitution of the union primarily operates upon the
administration of the units. (Absent in India)
3. Supremacy of the constitution which cannot be altered except by the component units. (Constitution
is no doubt supreme in India but it can be altered by the Parliament alone also.)

4. Distribution of powers between union and the regional units each in its sphere co-ordinate and
independent of the other. The basis of such distribution of powers is that matters of national importance
in which a uniform policy is desirable in the interest of the units, authority is entrusted to the union and
matters of local concern remain with the State. (There is no doubt a distribution of powers in India but
the distribution of powers is not the index of political sovereign. The powers of the states in that sense
are feterred by several restrictions)
5. Supreme authority of courts to interpret the constitution and to invalidate action – violative of the
constitution. A federal constitution, by its very nature, consists of checks and balances and must contain
provisions for resolving conflicts between the executive and legislative authority of the union and the
regional units. (Found in full force in India)

Wheare adds a fifth criterion to this i.e., Rigidity of the constitution and says that the Indian Constitution
is not rigid in the sense that it can be easily amended.

THE U.S. CONSTITUTION AND FEDERALISM (THE REAL PICTURE)

In the U.S., the above criteria are being satisfied. But there also the original constitution contained a
provision that the Senate would be composed of representatives selected by the legislatures of the states;
this way the central government was to some extent, dependent on the state legislature. However, this
anomaly has been removed after 1913. Despite this, the U.S. constitution from 1787 till 1913 was, and
could be called a federal constitution.
In fact, Wheare himself accepts that slight exceptions to the rigid framework of federation can be there, but
he limits it to the predominance of the federal principle. The Indian Constitution initially (before
independence) was seen as being federal in the sense that the centre would have enumerated powers and
the residuary or reserved powers would be with the States [strong states, weak centre]. But the post-
independence constitution envisages a strong centre and weak states.

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 The Indian Constitution and its concept of federalism have to be seen sui-generis and not as a
replication of some other constitution, for the history and the circumstances in different states may be
different.

SOME PROVISIONS THAT ALLEGEDLY MODIFY THE CONCEPT OF FEDERALISM IN INDIA

1. Governors: (a) are appointed by the president; (b) he can send certain bills directly to the President for
his assent and the President can veto it.
2. Article 249: Parliament can legislate on state subjects if the Rajya Sabha passes a resolution to this
effect by a 2/3rd majority.
3. Article 3: Parliament empowered to form new states and alter boundaries of existing states.

4. Emergency Provision
On the basis of the above features, it has been argued that the Indian Constitution is not federal.
But there have been forwarded, arguments against this conception:

As to 1: Whatever be the letter of the constitution, in practice there are not many examples where the
President has vetoed the state laws. The only example is the Kerala Education Bill Case, 1958. But here
also the Centre did so only after obtaining the advisory opinion of the Supreme Court. Moreover, the
Governor being a mere nominal head of the State, his appointment by the President does not deter from the
concept of federalism.
As to 2: There is no harm in the Parliament legislating on a state subject if it assumes a national character.
Moreover, this power is given to the Parliament by the Rajya Sabha only, which represents the State
legislatures.
As to 3: This can be justified on historical basis. The provisions of Article 3 take into account the fact that
the constitution contemplated readjustment of the territories of constituent states which might arise in
future.
As to 4: It is a merit of the constitution that it visualizes the contingencies when the strict application of the
federal principle might destroy the basic assumption on which our constitution is built.
Though the constitution of U.S., Canada and Australia do not expressly provide for the enlargement of
federal powers during emergencies but during the two world wars, the defence powers of the Federal
Government was given so extended that an interpretation by the courts that these countries behaved more
like unitary than federal states.

Wheare has nowhere defined the term ‘quasi-federal’ which is a rather vague term to be applied to the
Indian federalism. The essence of federalism is the distribution of powers between the Centre and

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the states, and this is what the Indian constitution does. The nature of federalism is more of historical growth
based on a nation’s necessity. The U.S. Constitution is federal in the sense of its own needs, the Indian
constitution is federal depending upon the society, polity etc. of India. Our constitution differs from the U.S.
federation because our framers of the constitution defined the Indian Federal structure based not on the rigid
theory but on practical considerations. There have been centralizing tendencies in

all federations in the world in light of the world wars. Scientific developments, social welfare concept

and the Indian Constitution having taken note of this dynamism has made proper room for it. Jennings has
rightly said: “The Indian constitution is mainly federal with unique safeguards for enforcing national unity
and growth.”
The question of federalism has been raised only after the emergency (Indira Gandhi) and the rise of many
political parties. Seervai argues that the Indian constitution is a federal constitution. His arguments are:
1. The states were not independent before they became a part of the Indian constitution. This does
not mean that the state is not federal because a federal situation existed – when the British Government
adopted a federal solution in the Government of India Act, 1935 and later the constituent assembly
adopted the federal solution in the Indian constitution.
2. Parliament can alter the state boundaries. But it is not the parliament but the states by extra
constitutional agitation have made them alter their boundaries.
3. Allocation of residuary powers to centre – not relevant as the United States and Australian
constitution give it to the states but they are necessarily federal.
4. External sovereignty of states – It should belong to the country as a whole. Internal sovereignty should
be there. List II, schedule VII gives exclusive powers to states. In Australia, these powers are not
exclusive but overlap.
5. It is of essence in a federal principle that both state and central laws must operate on the same person.
In case of a conflict the central law should prevail on Indian constitution – Article 254.
6. The emergency powers under Article 352 recognize de jure what happens de facto in United States,
Canada and Australia. The emergency powers do not dilute federalism but their abuse has done.
7. Emergency on grounds of internal disturbance (now ‘armed rebellion’). Also recognized in United
States in the Deb’s case wherein it was held that internal violence… could be crushed with full force
by the central government.
8. The war power belongs to the central government in all federal states. Thus Article 355 imposing
a duty on the Union to protect a state against external aggression or internal disorder does not detract
from the federal principles.
9. Federal laws must be implemented in states by appropriated machinery. In the U.S., a defiance of
federal laws can be and has been put down by the use of the armed forces of the United States and the

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 National Militia of the States. Indian constitution has a provision of the centre giving directions to the
states. It depends on the matters of practical expediency and does not deter from the federal concept.
10. Article 356 (read with Article 355) was based on Article 4, Section 4 of the United States
Constitution and is not inconsistent with the federal principle. It is the last resort. United States –
doctrine of political question. India – 44th amendment – courts came invalidate mala fide imposition of
President’s rule– a better law.
11. The view that states have been given unimportant matter only is incorrect. The states have been
given exclusive taxing power and their revenue is substantial.
Apart from this they also get the whole or a part of the revenue collected by the centre.

Then, Seervai goes on to say that the observation in the West Bengal Case that the principle of federalism
has been watered down in Indian constitution is incorrect in light of the above provisions. Therefore, Seervai
concludes that ‘the federal principle is dominant in our constitution.’

THE WEST BENGAL v. UNION OF INDIA CASE (1962)

In this case it was argued that since Indian Constitution is a Federal Constitution therefore all the provisions
of the Constitution should run subservient to that principle. On that basis it was argued that even if there is
a provision in the constitution (List I, VIIth Schedule) that the centre can acquire property in the states, this
power should be read subject to the concept of Federalism which envisages that the Centre and the states
are coordinate and independent in their respective spheres and are equal in status.
It was held that the Indian Federalism is not true to any traditional pattern of Federalism; India is Federal
in its own light. There can be no subjection of an express power to any un-explicit doctrines. The powers
of legislation are plenary.

ADVANTAGES AND DISADVANTAGES OF A FEDERAL GOVERNMENT

Advantages:

1. It ensures that government remains close to the people because the state government argue that they are
more in tune with the daily needs and aspirations of people especially relevant to small and isolated places.

2. It encourages development of the nation in a decentralized and regional manner and allows for unique and
innovative methods for attacking social, economic, and political problems.

3. It provides a barrier to the dominance of the majority.

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Disadvantages:

1.It can lead to duplication of government and inefficient, overlapping or contradictory

policies in different parts of the country.

2.It can lead to inequality between the states and lead to unhealthy competition and rivalry.

3. It can lead to over government that will result to corruption.

What can Federalism do for our economy?

The state will be able to decide on which track they would like to pursue based on the existing resources. The
state will also be able to help the citizens find an appropriate job within the state, instead of prioritizing aliens
from other states. Therefore, for example, a state has an abundant raw
material, they can decide which byproduct they would like to invest in and what to export. ‘The federal
government could challenge states and metropolitan regions to articulate how they would attain a critical
economic goal (say, doubling exports) over a set period. A consolidated competition could then be help to
group together federal programs across a broad and diverse range of activities and policy areas. The
competition could challenge a broad cross-section of leaders in states and metropolitan areas to: (a) articulate
a bold economic vision that builds from their special assets and advantages; (b) design strategies that carry
out that vision through tangible projects and investments; reform state and local policies and governance in
support of these strategies; and (d) hold themselves accountable on a regular basis through transparent
performance measures. Finally, a nonpartisan group of business, state, and regional leaders could be tasked
to recommend the goals and parameters of the competition and could even be designated to assess
disparate applications.’

How can Federalism strengthen our education?

The local (state) government has the authority to allocate the citizen’s tax, meaning, the state can decide
which areas need more monetary support, thus, the public school system might be able to
gain more support from the local government.

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CONCLUSION:
The salient feature of the Indian constitution is it the exclusive lists it enumerated as federal legislative
power, state legislative power and concurrent legislative power. In the Indian case on the concurrent
legislative power if controversy arises, as to the extent of the inconsistency it is constitutionally
guaranteed that the federal law shall prevail. In India federation, the residual power is left for federal
government. Added to this the Indian constitution also puts various provisions which empowers the
federal government to override the legislative power of the sates especially in times of emergency. The
US federation which is typically of coming together type tilts to give more legislative power to the states
even though the proper and necessary clause seems to derogate the power of the states in their legislative
jurisdictions. The Ethiopian federation on the other hand which has the feature of holding together
federation on the large part of it tends to give tremendous legislative power to the federal government
leaving little room for the states.

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REFERENCES:

 "The Constitution of India". Lawmin.nic.in.

 Wheare, K.C. (1963), Federal Government, fourth edition, Oxford University Press,
London.

 Baluyot, L. (2007). Federalism: Its Advantages and Disadvantages,

from https://bpspolitics.wordpress.com

 Book-“ Indian Constitutional Law”, M.P Jain.

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