SYMBIOSIS LAW SCHOOL, PUNE

2015 – 2020

CONSTITUTIONAL LAW

WRITTEN ASSIGNMENT:

Quasi-Federal Nature of the Indian Constitution.

RAKSHIT AGARWAL

P.R.N – 15010125006

DIVISION – A

BA.LLB(Hons.)
 INDEX

SL.NO. TOPIC PAGE

NO.
1 What is Federalism? An Introduction 3

2 Comprehensive view of Federalism 4

3 Nature of Indian Constitution: Quasi-Federal 6

4 Conclusion 13

5 References 14
 QUASI-FEDERAL NATURE OF THE INDIAN CONSTITUTION

WHAT IS FEDERALISM?
– An Introduction:
Federalism is a system of government in which the power is divided between central
authority and constituent political units. It is a concept which unites separate States into a
Union without sacrificing their own fundamental political sovereignty.
What effectively comprises a federal state or a federation is the existence of the Union and
the States. The most significant element is of distribution and arrangement of powers between
the Centre and Regional Governments at the periphery, that is, demarcation of powers in a
federal compact.

The Centre cannot prevail over the States, and control the independence and governance of
the State. Hence, in very simple words, federalism means that all the States have independent
constitutional existence and retain their sovereignty without being agents of the Centre.

A distinct feature of Federalism is that no two federal Constitutions are alike and each of
them is distinct in character depending upon the culmination of their historical processes. The
States have an important role to play in the social, political, educational and cultural life of
the people of the Union1.

The European Union is often seen as the revolutionary example to facilitate federalism in a
multi- state setting, with its roots dating back to 1946, wherein the states were conceptualized
as a Federal Union of States. However the first steps towards federalism were taken, in 1787
itself, when the Constitution of the United States of America (USA), was the foremost
constitution to adopt and exemplify modern federalism. The American Constitution truly
embodies the concept of federalism.

Federalism has forever been expanding and spreading through the world ever since. Till date,
the concept of federalism has been adopted by several Constitutions including Australia,
Brazil, Canada, India, etc.

The Union government of India was established by the Constitution of India, and comprises
of a federal union of 29 states and 7 territories.

1
M.P. Jain, Indian Constitutional Law, 758, (7th ed., 2014).
COMPREHENSIVE VIEW OF FEDERALISM –:

Federalism has a rather subjective character as previously stated, that is, it varies from one
Constitution to another. But there are certain striking characteristics or features which are
enshrined in most of the federalist Constitutions and as such are discussed below:

1) Written Constitution –A written Constitution is a necessary ingredient for

federalism. There cannot exist a federalist nation without a written Constitution.
USA, Canada, India, Australia and so on are federal nations having written
Constitutions.
On the contrary, United Kingdom (UK) is governed by conventions as it does not
have a written Constitution and is therefore a unitary nation.
2) Supremacy of the Constitution –Most federal Constitutions follow the principle
of Suprema Lex, that is, Supremacy of the Constitution. The method of
Governance, power enjoyed, duties and obligations is derived and performed as
per the requirements of the Constitution. The States’ existence and its powers are
derived from the Constitution. All laws enacted both at the Centre and the State
level is in line with the Constitutional scheme.
For example, each state in USA has a Constitution of its own and functions as per
the Constitution. Therefore, for every federal nation, the Constitution is the
supreme law of the land and every activity of the state is under the umbrella of the
Constitution.
3) Rigid Constitution –Rigidity of the Constitution means difficulty in amending
the Constitution. The Constitution cannot be amended unilaterally by the Centre
without it being ratified by the States.
. In Sweden, if the Constitution is amended, an intervening election is conducted.
If the public supports the amendment, the existing Government is likely to stay
and if the public is non- supportive of the amendment, the existing Government is
likely to fall.
However, in Switzerland, a Referendum is necessary for an amendment to the
Constitution
4) Division of Powers –Another important feature of federalism is the Division of
Powers between the Centre and States which is again derived from the
Constitution.
 Centralisation of Powers will result in a unitary form of Government like that of
the United Kingdom.
In the USA, there is clear Division of Powers with each state having its own
Constitution and each state witnesses minimal interference by the Centre. Each
state has its own Judiciary as well.
In Canada and India the powers are divided in the form of a List System. The List
System is made up of Union List, State List and Concurrent List. A similar pattern
is followed in Germany where there is the Union List and Concurrent List and the
remaining subject matters are dealt by the states.
5) Representation of States in Upper House of Parliament – In a federal set- up,
the States are generally represented in the Upper House of Parliament. In the
USA, the States is represented in the Senate by State Governors and similarly in
India, the States is represented in the Rajya Sabha by people who are elected by
the Legislative Assemblies of the States.
6) Independent Tribunal to Resolve Centre – State Disputes –In a federal set- up,
where both Centre and State are obligated to govern, disputes between the Centre
and States is bound to arise and this needs to be resolved with efficacy. To achieve
this end, a Tribunal or Court is necessary. For example, in India Article 131 of the
Constitution, provides for the Supreme Court of India to resolve centre – state
disputes and disputes between states. Similarly, in the USA the Federal Court
performs this function.
NATURE OF INDIAN CONSTITUTION: QUASI-FEDERAL

No two Constitutions are alike and each differ from one other on various grounds depending
on culture, local needs, geographical location and most importantly, its historical processes.
Nations adopt federalism, unitary, monarchy and various other forms of Government
depending upon suitability. The Indian Constitution has adopted a federal form of
Government. But there are certain provisions of the Constitution that are centralised which
makes it a hybrid Constitution (both Unitary and Federal features) has earned the Indian
Constitution the title “quasi- federal” or “a Unitary Constitution with federal features”. The
Indian Constitution is a classic example of how Federalism must be true in spirit rather than
in word. The Unitary features that make the Indian Constitution quasi- federal are:

1) Article 1 of the Constitution –Article 1 throws light on how India is Union of States
consisting of territories of States. The term ‘Federation’ is not used anywhere in the
Constitution because India did not come into existence because of agreement of the
States unlike the USA came into existence by an agreement among the states. India is
not a League or Federation of States like the USA which is a Federation of States. No
state within the territory of India has a right to cede from the Indian Union whereas in
the case of USA it is vice versa. For example, it was reported that the State of
California would hold a referendum to cede from the USA.
2) Power of Parliament to Alter the Map of India –The Government of India can
create a new state by division of a state or by merging of two states. The Government
can also abolish, rename and alter the boundaries of states. This can be done through a
simple majority in the Parliament of India. The Parliament can consult the state for its
opinion but such opinion is not binding on the Centre. The only requisite is
consultation and not concurrence.
For example, Prior to the State of Telangana being created, the Andhra Pradesh
Legislative Assembly passed a resolution against the creation of the state of
Telangana. But, since this is not binding, the Parliament went ahead with the creation
of Telangana. For this purpose, the Constitution need not be amended and as a result,
this shows the quasi- federal nature of the Indian Constitution. When the State
Reorganisation Bill, 1956 was passed by the Parliament for creation of new states, the
Constitution was not amended for the same.
3) Role of Governor – The Governor, who is the Constitutional Head of the state, is
appointed by the President on the advice of the Union Council of Ministers. In his
 capacity as a Governor, he must protect Constitutional Machinery of the State. He is
appointed and not elected; the reason enumerated by Jawaharlal Nehru was that an
elected Governor could encourage separatist provincial tendencies. It would lead to
power tussle if both Chief Minister and Governor are directly elected. The State need
not be consulted for such appointment. The Governor has no functions but is obliged
to perform certain duties. His role is that of a “friend and guide” to the Council of
Ministers and rise above day-to-day politics and override compulsions either arising
from the central or the state system and his action should not be arbitrary of mala fide.
In Rameshwar Prasad v. Union of India2, the Supreme Court of India held that the
Governor is not an agent of the centre but must perform “dual responsibility” to the
Centre and State. Under Article 163(1) of the Constitution, the Governor possesses
discretionary powers by which he is not mandated to act under the advice of Council
of Ministers. He can exercise such power only if there is a compelling situation
arising from an explicit provision of the Constitution or by necessary implication.
To cite a recent case, Arvind Kejriwal, the Chief Minister of New Delhi resigned, post
which President’s Rule was imposed based on the report of Lieutenant Governor,
Najeeb Jung. On the advice of the Centre, the Lieutenant Governor did not call for an
election by keeping the Legislative Assembly in suspended animation instead of
dissolving it. The President’s Rule continued for around six months. It is only after
the Supreme Court cracked the whip on the Centre, the Legislative Assembly was
dissolved and fresh elections were called. This was a clear case of abuse of the post of
Governor by the Centre.
The Governor holds office at the pleasure of the President which means that he can at
any time, be removed or transferred. Since the President acts on the advice of Council
of Ministersthis is generally done at the whims and fancies of the Centre if the
Governor in not in sync with the policies of the Centre or the ideology of the ruling
party. The Supreme Court in B.P. Singhal v. Union of India 3drew a line for such
whimsical activities and abuse of power.
The post of Governor clearly indicates how the Centre can interfere in the functioning
and administration of states and thus gives a quasi- federalist outlook. To bring reform
and change in the role and functioning of the Governor, the Supreme Court in
Rameshwar Prasad v. Union of India stressed that the recommendations enumerated

2
Rameshwar Prasad v. Union of India, AIR 2006 SC 980.
3
B.P. Singhal v. Union of India, (2010) 6 SCC 331.
 in the Sarkaria Commission Report and the Report of the National Commission to
Review the Working of the Constitution (NCRWC) be implemented to ensure a more
federalist administration and functioning.
4) No Equal Representation in the Upper House of Parliament –One of the many
federalist features is that the upper house of Parliament should have an equal
representation of members from each state. In the USA, the upper house of the
Congress, that is, the Senate has equal number of members from each irrespective of
the geographical size. On the contrary, in India the representation of states in the
upper house of Parliament, that is, Rajya Sabha, is unequal and depends on the
geographical size of the state. Uttar Pradesh, being the largest state, has the largest
number of representation in the Rajya Sabha whereas small states like Goa, Manipur
and Mizoram among others have the smallest representations. This gives the Indian
Constitution a quasi- federalist tinge.
Also, the elected members of the Rajya Sabha need not be a resident or domicile of
the state they are elected from. This was held in Kuldip Nayar v. Union of India 4.
Residence, as a matter of qualification becomes a requirement only if it expressly
state in the Constitution. Residence is also not the essence of the Rajya Sabha and
therefore it is not a prerequisite of federalism. On this basis, if Parliament has chosen
not to require a residential qualification, it does not violate the principle of federalism.
5) Common Citizenship – The citizens of a quasi- federal state enjoy a common or a
single citizenship. They do not have two citizenships, that is, one for the state and one
for the country.
India follows this form of citizenship wherein passports are issued as a proof of
citizenship of India. On the contrary, in the USA there are two separate citizenships,
one for the state and one for the country. Therefore, every citizen has an American
passport and a state passport.
6) Single Integrated Courts –A federal state generally has two distinct lines of courts,
that is, one dealing with state laws and the other only with Centre formulated laws.
Taking the case of USA, it has Federal Courts and State Courts. The Federal Courts
have jurisdiction only to deal with Congress formulated Legislations and similarly
State Courts for state made laws. LGBT rights is not legalised in all states of USA
despite Federal Court judgement in its favour. Only the highest Court in few of the
states has legalised LGBT rights. In India, there are Single Integrated Courts which
4
Kuldip Nayar v. Union of India, AIR 2006 SC 3127.
 have jurisdiction to hear Centre and State made Legislations. The Supreme Court of
India and State High Courts have the jurisdiction to hear cases on Centre and State
made laws. Section 377 of Indian Penal Code (IPC) deals with unnatural offences was
struck down by the Delhi High Court initially post which the Supreme Court upheld
the validity of Section 377. It is clearly shows that the State High Courts can also hear
cases dealing with Parliament made law.
7) Deployment of Armed Forces –The Armed Forces are deployed in the States at the
Centre’s will. The State Government need not be consulted. The Armed Forces can be
deployed for civil and non- civil purposes. Civil purposes include times of natural
calamity, public security, and airport security and so on. Deployment of Central
Industrial Security Force (CISF) for security at all airports in the country is backed by
an act of Parliament. Similarly, deployment of military and National Disaster
Response Force (NDRF) at times of natural calamity is done at the Centre’s command
and the States do not have a say.
Non- Civil purposes include insurgencies, border areas, terrorist activity and so on. In
such situations, the Centre also has the power to declare Martial Law in a state by
declaring any area as “disturbed”. The Armed Forces Special Forces Act (AFSPA) is
a classic example. This act of Parliament allows the Centre to deploy the military in
areas which are prone to insurgencies, terrorism, activities which are a threat to peace
and so on. AFSPA is imposed at the will of the Centre and the opinion of the States is
not binding. This is imposed in the state of Jammu and Kashmir due to separatist
movement and in North- Eastern States like Manipur and Nagaland to curb terrorist
activities and illegal immigration from Bangladesh.This deployment of Armed Forces
is concentrated with the Centre giving the Constitution a quasi- federal outlook.
8) Parliament’s Power to Make Laws Under the State List –In the list system, the
Centre can make laws under the Union List, States under the State List and both the
State and Centre under the Concurrent List. But there are situations and issues which
arise and are of national interest and as such, Article 249 gives the Parliament the
power to make laws under the State list. Such law can also be legislated at the request
of a group of states. Also during President’s Rule in a state all the bills pending in the
dissolved State Legislature are moved to the Parliament which makes a decision to
make the bill into a law or not. When President’s Rule was imposed in Uttarakhand,
the Financial Bill seeking funds from the Centre was pending in the State Legislature.
This was later moved to the Parliament which sanctioned only 40% of the amount
 sought. This power of Parliament to make laws under the State List or during
President’s Rule makes the Indian Constitution quasi- federal.
9) Centralised Machinery for Audit and Elections –In a quasi- federal set- up, the
Audit of Governments and conduct of Elections at the Centre and State level is done
by Constitutional bodies such as the Comptroller and Auditor General of India (CAG)
and the Central Election Commission (CEC). The appointment of members to these
bodies is done by the President of India and the State Governments have no say in
their appointments. The CAG and the Election Commissioners can only be removed
by the process of impeachment. Such a mechanism is provided so as to keep the
influence of the political class at bay.
Similarly, the All India Services like Indian Administrative Services (IAS), Indian
Police Services (IPS) and Indian Foreign Services (IFS) is regulated by the Centre
without any State interference.
10) Residuary Powers -The power which allows the Centre to make laws on subjects not
mentioned in List II and III is known as Residuary Powers. This is enjoyed by the
Centre only.Laws of investigative agencies not mentioned in any of the lists empower
the Parliament to frame laws on the same by virtue of Article 248. The Prevention of
Terrorism Act, 2002 (POTA), Terrorist and Disruptive Activities Act (TADA),
Unlawful Activities Prevention Act are laws framed by the Centre. Also, agencies
National Investigative Agency (NIA), Intelligence Bureau (IB) and Research &
Analysis Wing (RAW) were given birth by an act of Parliament and the states do not
have the authority to frame such laws.
11) Emergency –The proclamation of emergency is an outright centralised with only the
Centre having the power to impose emergency under Articles 352,356 and 360.
Emergency under Article 352 can be imposed only when the nation is threatened by
external aggression or armed rebellion. Such a Proclamation can be issued when the
President feels that such a situation exists. Such an emergency was imposed in the
1970’s during Indira Gandhi’s tenure as President.
Emergency proclaimed due to failure of Constitutional Machinery in the State under
Article 356 has been the most controversial provision due to the abuse of power by
the Centre. Surprisingly, prior to the S.R. Bommai case, President’s Rule had been
imposed 90 times. It is only in S.R. Bommai v. Union of India 5 that the Supreme
Court cracked the whip and laid down guidelines for the implementation of Article
5
S.R. Bommai v. Union of India, 1994 3 SCC 1.
 356.It is the obligation of the President to ensure that the States are functioning as per
the provisions of the Constitution and if the President is satisfied that a situation as
required under Article 356 has arisen, he may proclaim emergency. Since the
President acts on the advice of the Council of Ministers, the power under Article 356
is often misused by the ruling party at the Centre to topple Governments at the states.
Once President’s Rule is imposed, the entire state machinery comes under the control
of the President and the Governor of the State cannot undertake the administration of
the State.The only requirement is that the Governor should submit a report to the
President for proclamation of emergency.
In view of the misuse of power, NCRWC and the Sarkaria Commission suggested
reforms to make the working of Article 356 more transparent and democratic. The
measures suggested by the Commissions were as follows6
a) The Centre should impose Article 356 only as a last resort. All attempts to
resolve the crisis at the state level should be made. The centre should also
issue a stern warning to the States if it has erred in functioning in accordance
with the Constitution. An explanation should be sought. The Centre should
also specify the areas in which the States have erred and give an opportunity to
States to make good the loss.
b) The dissolving of the Legislative Assembly should be approved by both the
houses of the Parliament and the Legislative Assembly can only be kept in
suspended animation.
c) The Proclamation should also specify the grounds under which the President
was satisfied that the Constitutional Machinery has broken down and should
reason out why the Legislative Assembly was dissolved or kept in suspended
animation.
All the recommendations made by the Sarkaria Commission and NCRWC
were reiterated in Rameshwar Prasad v. Union of India. The Emergency
provisions were borrowed from the Weimer Constitution of the erstwhile
Germany under Adolf Hitler. This is a classic example of extreme
centralisation of power and authority without an opportunity for the States to
have a say.

Constitutional Governance and the Management of Centre- State Relations, Commission on the Centre – State
6

Relation Report, Volume II, 2010.

CONCLUSION
Federalism all in all is upheld in the Constitution of several states, and has been a reliable
method to separate States into a Union without sacrificing their own fundamental political
sovereignty.

Emphasis is laid on its dynamic character and it is not a static concept. It changes from state
to state and is always in the process of evolution from time to time in the light of
contemporary needs. It is a result of the culmination of their historical processes. The States
have an important role to play in the social, political, educational and cultural life of the
people of the Union.

Indian Federalism can further be strengthened by encouraging interactions between the

Centre and the State in the form of constant discussions and debates. The Centre and the state
need to get closer and must sought to remove any form of barriers or hindrances that affect
the effective and efficient working of the federal government.

There must be rational parity between the Centre and the states in such a way that Union
doesn’t have a dominant approach towards the State. Both of them ought to function strongly
within the Constitutional framework. They must work hand in hand to increase the efficiency
of governance, and are both incomplete halves in the absence of the other.

Doctrinal approach based on competitive federalism must be condemned. The future of

Federalism in India must look forward towards:

 Improving the financial position of the government through effective tax collecting
machinery,
 Special emphasis on the social sector like education and health and so on.

Most importantly, it is imperative to ensure that the government does nothing, which in any
manner will endanger the unity of the States or destroy the federal machinery in India.

REFERENCES:
M.P. Jain, Indian Constitutional Law, 758, (7th ed., 2014).

2
Rameshwar Prasad v. Union of India, AIR 2006 SC 980.

3
B.P. Singhal v. Union of India, (2010) 6 SCC 331.
4
Kuldip Nayar v. Union of India, AIR 2006 SC 3127
5
S.R. Bommai v. Union of India, 1994 3 SCC 1.
6
Constitutional Governance and the Management of Centre- State Relations, Commission on
the Centre – State Relation Report, Volume II, 2010.