ACH II

WINTER SEMESTER 2019-20

PROJECT

TOPIC: FEDERALISM IN THE INDIAN CONSTITUTION

SUBMITTED BY: AYUSH BAKSHI

ID NO: 217017
SECTION: A

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INTRODUCTION

Federalism is a government concept specifying the partnership between national central

government and its constituent units at provincial, federal, or local level. Democracy theory
allocates power and authority amongst national and local government institutions in such a
manner where each unit is assigned a domain of power and authority that only it may practice,
whilst the others must be shared.
India's Independence Act and India 's eventual separation allowed the Constituent Assembly
take up a more unitary version of federalism. Gandhi also favored the decentralized framework.
On the other side, the then Prime Minister and Dr. BR Ambedkar advocated a unitary
government structure, while the then Home Minister Sardar Vallabhai Patel also advocated the
concept of federalism.
Eventually a healthy equilibrium was achieved culminating in a balance of power b/w the Center
and the States, and India was defined as 'Union of States' and this union was indestructible. The
structure prescribed not dual citizenship, but a single citizenship scheme for Union and state
governments. Two govts. operate in India, Union Government and State Government. Rather,
the two administrations should not subordinate each other when operating separately. While the
Indian constitution has the characteristics of being a federal constitution, in its strict meaning it is
not. The presence of characteristics required for the life of a federation is a very peculiar feature
of the Indian constitution, but on the other hand there are clauses that grant the Union
government more control than that of state governments. Henceforth, the Indian constitutional
system is a quasi-federal system, rendered in the 1935 Act.
The Act laid the basis of India's federal form of government. It allowed for the allocation of
legislative powers between the Centre and the States. These laws were developed to foster peace
and settle conflicts between States. Furthermore, the Act preserved a spirit of cooperation among
States. Within the nuances of this Statute, under sections 131, 132 and 133 lay down guidelines
to settle inter-state water-related conflicts. Basically, these regulations resolve the inter-
provincial river and river valley questions. On the other side, under section 135 of the 1935 Act
laid down rules for forming councils to deal with cooperation between British India's different
provinces. Even before independence, the desire for a cooperative partnership between states was
felt. The Indian Constitution adopted the concepts in a comprehensive form actually defined
under the 1935 Act. A well-designed, and more important, well-functioning federal government
structure, by virtue of its many advantages, plays a key role in fostering the peace and growth of
nations, as shown by the world's leading federations – USA, Canada, Australia, and Switzerland.
Whereas on the other side, although not deliberately designed, federal institutions can’t thrive as
demonstrated by the disintegration of many of the federal structures that arose in the last century,
such as Soviet Russia, Yugoslavia, Czechoslovakia, Rhodesia, and Nyasaland (Watts, 1999).

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Indian federation as 'quasi-federal'

The Indian constitution, though, appears to be autonomous and federal is somehow too moderate.
The Centre operates in a manner that does not encourage the sovereignty of the State to operate
entirely decentralized. This may be highlighted as one of the factors for India's diminutive
development relative to China, where absolute regional autonomy has resulted in higher growth
rates. Indeed, India has a democratic and institutional system where federal characteristics are
apparent. There is power balance between the Center and the States, but the Constitution
establishes superior authority for the central government and concentrates administrative and
financial authority exclusively for itself. It seems like there was some deficiency causing
constitutional framers add features that went against the federal concept. Reiterating the forces of
the Central Government, it has the power to reorganize the States by parliament; Governors
named by the Center can withdraw consent to the laws passed by the State; Parliament can
circumvent the laws passed by the States for purposes of national interest; Governors have a role
in the establishment of State Governments, and the Center has the power under Article 56 to
dismiss the State government. Fortunately, Centre-State judicial appeal authority remains as
those of the federal system. The bottom line is that the Indian political structure has federal
functionality restricted to a built-in unit core.
In the case of State of Rajasthan v Union of India, 1977 the then Chief Justice rendered India's
Constitution 'amphibian.' He said that. “if our Constitution establishes a central government that
is 'amphibian,' in the context that it will travel either on the federal or on the unitary plane,
depending on the condition and circumstances of a case..." Similarly, in the case of
S.R. Bommai v Union of India, Justice Ahmadi stated that, “It would thus seem that the Indian
Constitution has in it not only features of pragmatic federalism which, though distributing
legislative powers and suggesting the realms of state and central governmental powers, is
overlaid by powerful unitary features ... ". The term 'semi-federal' was used for India in the case
of State of Haryana v. State of Punjab, while in the case of Shamsher Singh v. State of Punjab
the constitution was described as 'more unitary than federal'.
Furthermore, in the case of State of West Bengal v. Union of India. This case discussed Indian
states' practice of sovereign forces. In this case, the SC ruled that the Indian Constitution does
not encourage total federalism. The court also highlighted four features highlighting that the
Indian Constitution is not a "standard federal constitution", which are as follows:
1) There is no provision of different constitutions for each federal state as needed. India's
Constitution is the overarching document regulating all states.
2) Only the Parliament of the Union may change the Constitution; while States have no authority
to alter it.
3) Opposed to a federal constitution, the Indian constitution grants the courts supreme authority
to invalidate any activity that contradicts the constitution.

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4) The distribution of powers promotes local governance by the state and Center to govern the
national policies.
The SC further ruled that all States' legislative and executive forces are subject to the Union's
respective supreme forces, meaning Center is the sole authority on any issue. Political power is
distributed unevenly between the Nation and the States with stronger weighting for the Nation.
Another factor that goes against state dominance theory is that India has no idea of dual
citizenship. The learned judges eventually concluded that India's institutional system is
concentrated, with states taking a secondary role w.r.t the Centre.
Instead, Justice Subba Rao was of the opinion that sovereign forces be divided according to their
respective realms within the scheme of the Indian Constitution. The union legislature's
constitutional area is wide-ranging than that of the state legislative assemblies; hence, the laws
enacted by the parliament should have an upper hand over state laws in the event of any dispute.
In a few law proceedings concerning inter-state conflicts, the president's sanction is made
necessary for the legitimacy of such rules.
Also, at the top each State has its judiciary with the State High Court. In Australia, complaints
against High Court rulings are with the Privy Council. The Indian federation can’t be rejected on
this basis. In financial affairs, the Union has more money available than the States. Thus, the
Union in control of finances will still convince States to obey its counsel.
In the case of national emergencies, domestic disturbance or foreign invasion, financial
instability, and collapse of the State's political machinery, the union's powers are all special
resources of the form of defenses to secure the country's future. The Centre's ability to change
states' borders is indeed an exceptional ability to meet potential contingencies. In the executive
and legislative realms, the States are sovereign. So basically, Justice Subba Rao claimed that the
Central Government has a larger position to perform relative to states, and thus the forces of the
Central Government must supersede those of the state.
Justice Subba Rao had stated that the federal system under the Indian Constitution was fair.
Undoubtedly, the Indian Constitution recognizes the federal principle and distributes sovereign
rights between the coordinated political bodies, namely the center and States.
Like Canada, India has an asymmetrical federal structure in the context that certain states have
legally guaranteed prerogatives separating them from other states. However, unlike Canada in
India, the granting of special status to a party or geographical body has never been easy. Under
Article 370, special arrangements for the State of Jammu and Kashmir as regards the rest of India
as per its instrument of accession.
There are also unique arrangements for the states of Andhra Pradesh, Arunachal Pradesh, Assam,
Goa, Mizoram, Manipur, Nagaland and Sikkim pursuant to their accession or statehood
agreements as laid down in Article 371A-I. Another significant item to be listed here is that the
Central Government (through its designated Governor) takes over the administration of the State
for several months when a govt. can’t be formed by any state party. Article 3 also notes that

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Parliament can alter a State's name, region or border without the permission of that State. Thus,
India's states do not have the right to sovereign inviolability.
Indian Constitution's 7th Schedule shows representation is one-sided and heavily in Centre 's
fav0ur. Union list includes the greatest number of important subjects like, almost all sorts of
taxes are on the Union list except sales tax. Another similar clause is Article 248, which
specifies that every issue not on the Concurrent and State lists belongs to the Residual List and
basically to the Central Government.
Under Article 312, it has been stated that for the development of All India Services, relating to
both center and the state, officers are selected, educated and assigned by the Centre, but they
operate primarily under the state government. So, basically these officers appointed by the center
largely manage state government. State government, beyond relocation, can’t take disciplinary
measures against staff. Every such step to withdraw duty or decrease rank may only be regulated
by the Union government.
Further, in Article 356 states that, within the presidential rule, Parliament is allowed to legislate
on one or more subjects of the State list for the State concerned. Thus, the legislation under
President Rule remains in effect.
Emergency regulations are again of paramount priority. Article 352 addresses national
emergency declaration. It states that when India's national security or any part of its territory is
threatened by war or foreign invasion or armed revolt, the President can declare a National
Emergency as stated in the 44th Amendment Act. In the event of a national emergency, power
distribution is suspended and the constitution acts as a Unitary.
Article 360, is also one of the emergency provisions addressing Center's financial emergency
aspect. While the Financial Emergency is in place, the Center will stop the allocation of financial
services between the Center and the State, and all financial resources can be utilized by the
Center to meet the emergency situation.
Another class of federal system is the concept of Cooperative federalism. This idea emerged in
the Australian Constitution when there was a perceived need for a transition from competitive to
cooperative partnership in federal constitutional work. This new federation perspective considers
federation a practical structure rather than a simple separation of powers between Center and
State. Cooperative federalism means that the Centre and States have a horizontal arrangement,
not in which one is above the other. There are three factors promoting this pattern, are as under:
(1) Conditions of war where, for national security, national actions take priority over fine points
of central-state power sharing;
(2) Technical advancements imply quicker communication;
(3) The creation of a social welfare state definition in reaction to collective requests for multiple
social programmes requiring immense outlays which the unit states did not accommodate on
their own.

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This definition allows federal system behave in accordance with its fragmented authority. This
basically encourages collaboration by mitigating conflict within the federal union 's numerous
constituent governments to pool their capital to achieve desired outcomes. In India, there are
several constitutional structures as well as some extra-constitutional structures to promote
Cooperative Federalism 's spirit. The constitution makers may have intentionally provided
certain features in the constitution to ensure smooth government operation. Notwithstanding
India's quasi-federal functioning and organization, it also incorporates some of the characteristics
important to a federal arrangement. Some are these features are;
Constitutional dominance
This is another significant argument in the collection of features stating the constitution is legally
binding on all federal and state governments. No State or even Center will alter the constitutional
provisions relevant to the government's power and position to enjoy.
The text of the Constitution
Any parliamentary constitution can’t be granted the status of becoming a federal constitution
since a written demarcation of power separation is required for the government's smooth
functioning. Providentially, India has a written constitution under which the central government
has certain rights with the states.
Constitutional rigidity
Third in the list features the principle of rigidity that doesn't provide versatility within a federal
constitution. This replaces the Constitution 's dominance result. Constitutional dominance brings
rigidity.
Control Division / Distribution
This is the last of this large list of critical elements. Power distribution is the federation's basic
and most important characteristics. State forces are split into central and local federal and unit
governments.
7th Schedule in the Indian Constitution points out 61 things allocated to the State list for which
State Governments can make legislation, while there is a Union list of 100 items on which only
Union Government may make law. Which makes it obvious that there is a system that suits the
federal essence, but the forces are separated such that it becomes a quasi-federal state.
Unfortunately, it is technically difficult to shed light on any clause where distribution / division
of powers is obvious and reveals that India does not follow federal requirements. Nevertheless,
any feature is rendered an attempt to impress.
However, in the case of America, the U.S. Constitution, describes that the government service is
split into two areas, namely federal and state governments. These governments are not
subordinate to each other but are coordinated and independent within the scope allocated to
them. It is also argued that such an independent coordinating authority structure is what forms

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the essence of the federal principle but in India, because of the absence of this feature it does not
qualify as a federal state.
The Indian Constitution is not a pact or covenant between countries; it is the product of the
Constitution, and consequently the Parliament. Professor Ronald L Watts, a well-known
federalist, defends the Indian approach, saying: "However," it was deemed desirable, in some
instances, that territorial social plurality and fragmentation be equally solid and even
overwhelmingly, granted to the federal government in Canada and India, as in Spain.
Federalism has always been a 'work in progress' or "constantly developed," as Iqbal put it
(Copland and Rickard 1999). The federal structure must be permanently amended and changed
to meet the changing environment and new issues.

CONCLUSION

To conclude, 'Federalism' is one of those good echo terms that evokes a meaningful response to
several definitions like freedom, change, etc. This form of government attempts to improve
socio-political cooperation between two sets of identities through different structural
mechanisms of 'shared rule.' But for obvious reasons, center-state relationships and state
autonomy are the main issues of Indian federalism.
In 1983, the union government constituted the Sarkaria Commission to analyze and study Indian
Federalism 's functioning, but this Commission did not offer any useful proposals to organize
Indian federalism properly. Also, the Union government took a very simple path to some of the
suggestions presented by this committee. This demonstrates that while our constitution is said to
be federal, this overemphasis on federal government authority leaves it incapable of solving
socio-economic problems efficiently and reinforcing national unity. It is also fitting to restructure
Indian Federalism to make it more successful and promote the Center-State relationship.
The Indian Constitution on the one side includes elements of high significance for a territorial
arrangement, although at the same time it includes clauses that battle for a powerful centre,
rendering it quasi-federal in nature. The truth is that these dual federalism provisions were
intentionally introduced to suit a polyglot nation like India better.

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BIBLIOGRPHY

ARTICLES & WEBSITES

1. Surendra Singh and Satish Mishra “Federalism in India: Time for a Relook?”

2. “A debate on Indian Federalism” Concept of Federalism

3. Amaresh Bagchi “Fifty Years of Fiscal Federalism in India – An Appraisal”

4.  Prakash Karat “Federalism and the political system in India”

5.  Patrick Hoenig “Federalism and identity in India”

6. http://sanamurtaza.blogspot.in/2011/08/cooperative-federalism.html

7.  http://www.halfmantr.com/display-polity/161-indian-federalism

CASES

I. State of Rajasthan v Union of India (1977) 3 SCC 592

II. S R Bommai v Union of India AIR 1994 SC 191

III. State of Haryana v. State of Punjab

IV. Shamsher Singh & Anr v. State of Punjab 1974 AIR 2192

V. State of West Bengal v. Union of India 1963 AIR 1241

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