Dr. B.R.

Ambedkar National Law

University

CONSTITUTIONAL LAW-I

INDIAN CONSTITUTION AS A UNITARY

CONSTITUTION

SUBMITTED BY - SUBMITTED TO -

AYUSH BENIWAL DR. PRADEEP KUMAR

SEMESTER- V

SECTION-A

ROLL NO – 1901003
Constitutions are either unitary or federal. In the unitary government, the powers of
the government are centralized in the central government & the states are
subordinate to the center. In the federal constitution, there is a division of power
between the states & the central government & both are independent in their own
spheres.

The nature of Indian Constitution can be understood as it is:

1. Federal with unitary features

2. Unitary with federal features

3. Quasi-federal.

The federal features of the Indian Constitution can be understood in the following
points:

The most essential feature of the federal constitution is that it has a dual
government that means a dual polity consisting of the union at the center and the
states at the periphery. Each is endowed with sovereign powers to be exercised in
the field assigned to them respectively by the Indian Constitution.

The Union government deals with the matters of national importance like defense,
foreign affairs & so on. The state government look after the matters of the regional
& local importance like health, agriculture & so on.

A federal constitution is almost necessary for a written constitution. The Indian

Constitution is not only a written document but also the lengthiest constitution of
the world.

The Indian Constitution has divided the powers between the center & the state in
terms of union list, state list & the concurrent list as mentioned in Schedule VII.
The Indian Constitution is the supreme law of the land which means all the
authorities of the Union & the State are subject to the authority of the Indian
Constitution.

The procedure of amending the constitution regarding the federal principle is rigid.
The Indian Constitution cannot be changed unilaterally either by the center or by
the state government. Hence, the Indian Constitution is rigid to the extent of those
provisions which are concerned with federal structure can be amended by the joint
action of the center and the state as well.

The Indian Constitution establishes an independent judiciary headed by the

Supreme Court for two purposes i.e.

One, to protect the supremacy of the Constitution by exercising the power of

judicial review & Two, to settle disputes between the center & the states or
between the two states.

The unitary features of the Indian Constitution can be understood in the following
points:

Article 1 of the Indian Constitution says that India is the union of states which
implies two things i.e., it is not the result of an agreement among the states & the
second is that the states have no power to separate itself from the Union.

In India, the government has the power to separate or alter the boundaries of the
states & it is laid down in Article 3 of the Indian Constitution.

The process of a constitutional amendment is less rigid than what is found in other
federations. The bulk of the Indian Constitution can be amended by the unilateral
action of the parliament.
The Indian Constitution has established an integrated judicial system with the
Supreme Court at the top & the state's High courts below it.

There is single citizenship for both the union & the states. There is no provision of
separate Constitution for the state in India, unlike the USA.

The quasi-federal feature of the Indian Constitution can be understood as it has

always been a matter of debate that whether the Indian Constitution is federal or
unitary in nature.

The Indian Constitution is both federal & unitary in nature as it is a combination of

federal & unitary features.

In the federal set-up, there is a two-tier government with well-assigned powers &
the functions of all the parts. Prevention as well as for the betterment of the
conflict of the interest of the center and the state is an integral part of federalism.
No doubt that the essay characteristics of a federal constitution are present in the
Indian Constitution. It is claimed that the constitution does not embody the federal
principles because the center can in certain contingencies encroach upon the field
reserved for the states. The power of intervention given to the center is inconsistent
with the federal system as it places the states in a subordinate position.

From all the above-mentioned points, it can be concluded that the Indian
Constitution is neither purely federal nor purely integral. It is a Harmonious
mixture of both. It has contemplated the problems which the country may face in
the future if the constitution were to be purely federal & therefore the Indian
Constitution has made provisions converting it into a unitary mode on a temporary
basis until the crisis overcome.
Usually, the constitution is either federal or unitary in nature. In a unitary
constitution the powers of the government are centralized in one government i.e.,
central government. But in a federal setup the power is equally divided among the
center and the state.

If we talk about Indian constitution there is a difference of opinion among the

experts. Some claim that our constitution is quasi federal and contains both unitary
and federal features. But the framers of the Indian constitution claim that Indian
constitution is purely federal.

It is indeed difficult to put the Indian Constitution in the category of federations,

even though it had all the main ingredients of a federation.

It is, in fact, a new contrivance designed to meet the special requirements of Indian
society.

The framers of the Constitution have modified the true nature of Indian federalism
by incorporating certain non-federal features in the Constitution as well. This has
lent support to the contention that the Indian Constitution is federal in form but
unitary in spirit.

(i) Single Citizenship:

The Indian federation is a dual polity with a single citizenship for the whole of
India. There is no State citizenship. Every Indian has the same rights of citizenship,
no matter in which State he resides.

(ii) A Strong Centre:

The result of the distribution of powers between the federation and the units is that
the State Governments are governments of limited and enumerated powers.
Though the Union Government is also a government of limited and enumerated
powers, it has, under certain circumstances, power even over the State
Governments and the residuary power over the whole territory.

(iii) Single Constitution for Union and States:

Indian Constitution embodies not only the Constitution of the Union but also those
of the States. Furthermore, the States of the Indian Union have a uniform
Constitution. The amending process both for the Constitution of the Union and the
States is also the same.

(iv) Centre Can Change Name and Boundaries of States:

In India, the Centre has a right to change the boundaries of the States and to carve
out one State out of the other. In fact, this has been done in India, not only once but
several times. In the fifties, Andhra Pradesh was carved out of Madras State.

Shortly thereafter, the States Reorganization Commission was established and a

chain of events unfolded. There is perhaps no State whose boundaries have not
been changed at one stage or another. The right of the Centre to change the
boundaries of the States is against the federal set-up.

(v) Single Unified Judiciary:

In India, the Supreme Court and the High Court’s form a single integrated judicial
system. They have jurisdiction over cases arising under the same laws,
constitutional, civil and criminal. The civil and the criminal laws are codified and
are applicable to the entire country. To ensure their uniformity, they are placed in
the Concurrent List.
(vi) Unitary in Emergencies:

The Indian Constitution is designed to work as a federal government in normal

times, but as a unitary government in times of emergency. Under the Constitution,
the President of the Republic has been given emergency powers. An emergency
can arise both in the political and financial fields.

(vii) Common All-India Services:

The Constitution has certain special provisions to ensure the uniformity of the
administrative system and to maintain minimum common administrative standards
without impairing the federal principle.

These include the creation of All-India Services, such as the Indian Administrative
and Police Services and placing the members of these services in key
administrative positions in the States.

(viii) Inequality of Representation in the Council of States:

There is bicameralism in India but in the Council of States, States have not been
given equal representation. Here population system has been followed and bigger
States have been given greater representation than the smaller ones.

(ix) Appointment of Governor by President:

The Heads of the State—the Governor—are appointed by the President. They hold
office during his pleasure. This enables the Union Government to exercise control
over the State administration.
(x) Appointment of the High Court Judges by the President:
Appointments to the High Courts are made by the President, and the Judges of the
High Courts can be transferred by the President from one High Court to another.

(xi) The Office of the Comptroller and Auditor-General:

The Comptroller and Auditor-General of India has an organization managed by the
officers of the Indian Audit and Account Services, a central service, who are
concerned not only with the accounts and auditing of the Union Government but
also those of the States.

(xii) Centralized Electoral Machinery:

The Election Commission, a body appointed by the President, is in charge of
conducting elections not only to Parliament and to other elective offices of the
Union, but also to those of the State Legislature.

(xiii) Flexible Constitution:

The Indian Constitution is not very rigid. Many parts of the Constitution can be
easily amended.

(xiv) Special Powers of Council of State over State List:

The Parliament is also authorized by the Constitution to make laws on any subject
mentioned in the State List, if the Council of States passes a resolution by a two-
thirds majority declaring a particular subject or subjects to be of national
importance.
Similarly, Parliament can pass laws on the items of State List, if it is deemed
essential by the Government of India to honor an international obligation. In short,
in India the Centre can encroach on the field reserved for the States as and when it
feels necessary.

(xv) Control over State Laws:

Certain laws passed by the State Legislature cannot come into operation unless
they have been reserved for the approval of the President of India. Thus, all the
laws concerning the acquisition of property, all laws on Concurrent List which are
contrary to the laws passed by the Parliament; and the laws concerning the sales-
tax on essential commodities, etc. need the approval of the Central Government.

Moreover, the Governor of a State reserves the right to reserve any Bill passed by
the State Legislature for the consideration of the President. The President may
accord his approval to such a bill or may withhold his assent.

(xvi) Financial Dependence of States:

In a federation, as far as possible, States should be financially self-sufficient so that
these enjoy maximum autonomy. But in India, the States depend on the Centre for
all development. They have much less sources of income but many more needs of
expenditure. This financial dependency has very much hindered the growth of
States on federal lines.

The mode of formation of the Indian federation was quite different from that which
led to the formation of a federal union of the American type. In India it was not the
case of a number of sovereign and independent states entering into a voluntary
agreement and setting up a federal state for the administration of certain affairs of
general concern, keeping back with themselves the powers which they did not want
to give to this new government.

The government of the country, till the India Act of 1935 was passed, was a
centralized government and the process that was adopted under the India Act of
1935 was that of “creating autonomous units and combining them into a federation
by one and the same Act”. The process for the establishment of a federation in
India, therefore, has to be described as one of movement from the union to the
units rather than from the units to the union.

The Act of 1935, however, cannot be described as having given to India a truly
federal constitution. It has far too many restrictions imposed upon the provincial
governments. When the British left India in 1947, they withdrew these powers and
transferred their sovereign rights to the people of India to exercise them in
accordance with a constitution of their own choice.

If India has not been partitioned at the time it got its freedom, there would certainly
have been far fewer features of centralization in the Indian Constitution than we
find today. A partition of the country, with the seceding part nurturing a grouse
against it, and the uncertainties of the international situation, the emergence of two
Super Powers struggling for supremacy over each other made it necessary for the
Indian Constitution to make provisions for the centralization of power.

The Indian Constitution’s unitary tilt:

The recent political developments around the Citizenship (Amendment) Act
(CAA) and the National Register of Citizens (NRC) have revealed some of the
most significant crevices of Indian federalism. Soon after the protests erupted,
several State governments occupied by Opposition parties or partners of the
Bharatiya Janata Party (BJP) declared that they would not implement the law.
Further, in a somewhat unprecedented move, the Legislative Assembly of Kerala
went to the extent of passing a resolution, stating that the law “contradicts the basic
values and principles of the Constitution”. Indeed, the resolution is only symbolic,
and has no legal ramifications. And, though the passage of any such resolution is
not constitutionally barred, it may not be in tune with the federal scheme under the
Constitution.
Similarly, Article 256 of the Constitution obligates the State government to ensure
implementation of the laws made by Parliament. If the State government fails to do
so, the Government of India is empowered to give “such directions to a State as
may appear... to be necessary”. The refusal to enforce the law even after the Centre
issues directions would empower the President to impose President’s Rule in those
States under Articles 356 and 365. The Supreme Court of India has also confirmed
this reading of the law in S.R. Bommai v. Union of India — arguably the most
significant case on Indian federalism.

Anti-CAA ads in West Bengal

Another controversy arose in West Bengal, where the State government put anti-
CAA advertisements on its websites. In an interim order, the Calcutta High Court
directed the State government to remove those advertisements. The question —
whether State governments are empowered to use public funds to campaign against
a law made by Parliament — is open for final determination. In its final judgment,
the High Court could bar the State government from campaigning against a
parliamentary law.
Therefore, neither the refusal to implement nor the official protests registered by
State governments carry much legal force. However, we will be missing the forest
for the trees if we fail to see the premise that has led to such reactiveness on the
part of some State governments — the emergence of a dominant party at the
Centre. Political analysts have offered various nuanced takes on what the rise of
the Bharatiya Janata Party (BJP)’s dominance means for electoral politics. The
impact of a single-party dominance on the functioning of our constitutional
structure, however, receives little attention. For instance, Parliament, the avowed
“temple of democracy”, has been reduced to a site for procedural formalities. At
least the Lok Sabha appears to be an extension of the executive, rather than a
mechanism for its accountability.

POWER OF BRUTE CENTRAL MAJORITY

This truncation of the role of Parliament in the face of single-party dominance is
further facilitated by the poor understanding of the role of a parliamentary
Opposition in Indian politics. Once the competition for people’s vote is over, it
goes, the losers should step aside, respect the democratic mandate, and let the
government do its job. The Opposition may question the government like ordinary
citizens, or prepare for the next election, but should not meddle in governance.
Any further interference by the Opposition, particularly in such polarized times,
would risk inviting the labels of anti-national “seditious cabals”. The brute
dominance of the ruling persuasion has dwarfed any semblance of Opposition
politics at the Centre. This is manifested through the absence of the Leader of
Opposition in Lok Sabha for six years in a row (a consequence of an archaic and
arguably unlawful practice requiring a party to secure at least 10% of total seats to
occupy the position of Leader of Opposition), the denial of an Opposition vote in
the appointments to various anti-corruption bodies, etc. Further, with the
Opposition failing to show any signs of resilience, national politics seems to be
operating in the absence of any credible political check.
Arguably, such capture is not unprecedented. Time and again, our experiences with
single-party dominance have shown that in the face of comfortable majorities, our
constitutional structure reveals its tendencies to concentrate power. The
concentration of power, dormant in the times of coalition governments, is not
merely a bug introduced by the BJP, but is embedded into the very structure of the
Constitution. A ‘Centrist bias's of the Indian Constitution further augments the
powers of the brute national majority. In the backdrop of a bloody partition and
threats of “fissiparous tendencies”, it was probably justified for the founders of the
Indian republic to be hesitant in instituting a stronger federalism. If we wanted to
be together, the argument went, we could only have so much federalism.
Electoral federalism
But over seven decades, there have been changes in ground realities. Over the last
couple of years alone, we have seen repeated examples of huge vote swings
between national and State elections, separated by only a few months, in the same
constituencies. And that too against a dominant national party with unprecedented
organizational capabilities. These have offered convincing evidence that Indian
voters are not only nuanced in their voting choices, but can also reconcile their
seemingly contradictory votes in national and State elections. In other words,
federalism is not a mere legal division of powers; the democracy and voters, too,
are becoming federal. This popular embrace of electoral federalism may be one of
the most significant achievements of Indian democracy.
Hence, thanks to electoral federalism, the “losers” of national politics can still win
State elections and form legitimately elected governments. The State governments
are thus filling the Opposition deficit at the Centre. With this shift of Opposition
politics from New Delhi to State capitals, the politics of Opposition is likely to
become the politics over federalism. Is the whole greater than the sum of its parts,
as the Central government would want us to believe? Or are the parts going to
determine the future of the whole, as State governments are likely to argue?
The conflict that the CAA has triggered might become a template for future
contestations over the federal question. While the politics seems to be ripe for
advancing federalism, the law is likely to constrain such a development. We should
not be surprised if the Constitution, a product of its time, falls behind the demands
of democratic politics. The protesters are fighting for upholding the founding
commitments of the Constitution. Ironically, the very Constitution that could
ensure the fulfillment of the protesters’ demands is empowered to hamper federal
politics. Perhaps there also lies a cautionary note against constitutional idolatry.
CONCLUSION:

In short it may be concluded that the Indian constitution is a combination of both

unitary and federal state where more features are there for federal. Thus, Indian
constitution is mainly federal with some unitary features for national unity and
growth.

BIBLIOGRAPHY

BOOKS

 Indian Constitutional Law by M.P. Jain, Wadhwa and Co. Nagpur, 2021.
 Constitution of India by VN Shukla, Eastern Book Company, Lucknow, 2019.
 Constitutional law of India by Narender Kumar, Allahabad Law Agency 2018.
 The Constitution of India by Dr. J.N. Pandey, Central Law Agency, 2021.

ACT

 The Constitution of India, Universal Law Publishing Co. Pvt. Ltd., New Delhi, 2021