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FEDERALISM IN INDIA

Project submitted to the University of Calicut

In partial fulfillment of the requirement for

the award of Degree

BACHELOR OF ARTS IN POLITICAL SCIENCE

By

NIPUN.K

Register Number: GMAOAPO023

1
POLITICAL SCIENCE

UNIVERSITY OF CALICUT

2014-2017

DECLARATION

I NIPUN K do here by declare that this dissertation


FEDERALIM IN INDIA which submitted in partial
fulfillment of Bachelor of Arts in Political Science of the
University of Calicut. I further declare that this project has not
been previously submitted to this or other University for the
award of any degree, diploma and fellowship on the similar
titled or recognition.

2
University of Calicut NIPUN K

Date

ACKNOWLEDGEMENT

An endeavor is always incomplete without an acknowledgement of those


who helped you achieve it and guide through it. I would like to thank the
entire Staff of my college without those help the task would have been
impossible. I would also like to thank the Teacher and Persons of
Department for assistance.

3
Thank You!

INDEX

CHAPTER-1 INTRODUCTION

AIMS AND OBJECTIVE


SIGNIFICANCE OF STUDY
HYPOTHESIS

4
STATEMENT OF PROBLEM
RESEARCH METHODOLOGY

CHAPTER-2 DATA ANALYSIS AND INTERPRETATION

Meaning of Federalism
Definition of Federalism
Essential Features of Federalism
Traditional and Modern Approach
CHAPTER-3 FEDERALISM ENVISAGED BY THE
GOVERNMENT OF THE INDIA ACT, 1935
CHAPTER-4 NATURE OF INDIAN FEDERAL SYSTEM

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CHAPTER-1

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INTRODUCTION

The terms 'federalism' and 'confederalism' both have a root in the Latin

word foedus,

meaning "treaty, pact or covenant." Their common meaning until the late

eighteenth

century was a simple league or inter-governmental relationship among sovereign

states

based upon a treaty. They were therefore initially synonyms. It was in this sense

that

James Madison in Federalist 39 had referred to the new United States as 'neither

national nor a federal Constitution, but a composition of both' (i.e. neither a

single large

unitary state nor a league/confederation among several small states, but a hybrid

of the

two).In the course of the nineteenth century the meaning of federalism would

come to

shift, strengthening to refer uniquely to the novel compound political form, while

the

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meaning of confederalism would remain at a league of states. Thus, this article

relates

to the modern usage of the word 'federalism'.

Modern federalism is a system based upon democratic rules and institutions in

which

the power to govern is shared between national and provincial/state governments.

The

term federalist describes several political beliefs around the world depending on

context.

It is often perceived as an optimal solution for states comprising different cultural

or

ethnic communities. However, tensions between territories can be found in

federalist

countries such as Canada and federation as a way to appease and quell military

conflict

has failed recently in places like Libya or Iraq, while the formula is

simultaneously

proposed and dismissed in countries such as Ukraine or Syria. Federations such

as Yugoslavia or Czechoslovakia collapsed as soon as it was possible to put the

model

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to the test

1.1 AIMS AND OBJECTIVES

To study in detail the meaning of federalism and to describe the basic principle of

Federalism.

To examine the character of Indian federal system and whether or not the Indian

Constitution can be described as a Federal Constitution.

To give a distinctive study of other federal countries with India.

To critically examine the Indian Federal System.

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1.2 SIGNIFICANCE OF STUDY

There has been a lot of insoluble controversy as to the question whether Indian

Constitution is federal or unitary. Some characterized it as federal, while other treated

it as unitary. To solve this controversy it is necessary to examine the essential

characteristics of a federal constitution. Indian Constitution has chosen to adopt

federal system but with a capacity to work as unitary when so required. As the new

trend in all federations is to have some sort of co-operative federalism with somewhat

dominating powers to the centre, the framers of the Indian Constitution have also

sought to provide for co-operative federalism. Cooperative federalism is a modern

approach where the powers are distributed between National government and State

government.

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1.3 HYPOTHESIS

Constitution of India is neither purely federal nor purely unitary but a combination of

both. According to the need and demands of circumstances and to meet the aspiration

of the people, there are some provisions in the Indian Constitution which deviates

from truly federal character. It is like a chameleon which can change colour according

to environment. Much will depend upon the role of the President, regional and

national parties, the strength of the political party in power at the Centre and its

backing in States.

The constitution of India contains various provisions for inter-state coordination and

cooperation. Cooperation and coordination between the Union and States have been

considered necessary for the development of the country. The Constitution of India,

thus, provides for Cooperative Federalism.

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1.4 STATEMENT OF PROBLEMS

What are the basic principles of Federalism and to what extent do they

incorporated into the Indian Constitution?

Whether the Constitution of India is truly federal in character or more unitary?

Whether the federal system in India is same as in U.S.A, Canada and Australia?

Whether the condition of the present Indian Constitution can be described

as

Cooperative Federalism?

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1.5 RESEARCH METHODOLOGY-

Methodology can be: "the analysis of the principles of methods, rules and postulates

employed by a discipline "the systematic study of the methods that are, can be, or

have been applied within a discipline", "a particular procedure or set of procedures"..

This research is based on the Doctrinal research. Doctrinal research means a research

that has been carried out of legal proposition or propositions by way of analysing the

existing statutory provisions and cases by applying the reasoning power.

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According to SN Jain, doctrinal research involves analysis of case law, arranging,

ordering and systematizing legal propositions and study of legal institution through

legal reasoning and rational deduction.

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CHAPTER-2

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2.1 MEANING OF FEDERALISM

Federalism is a political concept in which a group of members are bound together by

covenant with a governing representative head. The term "federalism" is also used to

describe a system of the government in which sovereignty is constitutionally divided

between a central governing authority and constituent political units (like states or

provinces). Federalism is a system in which the power to govern is shared between

national and provincial/state governments, creating what is often called a federation.

Proponents are often called federalists.

In Canada, federalism typically implies opposition to sovereignty's movements. In

the United States, advocates of a very small federal government and stronger state

governments are those that generally favor confederation, often related to early

"anti-federalists" and later the Confederacy in the United States.

Argentina, Australia, Brazill, India and Malaysia among others, are also federal

countries. Modem Constitution and Government are classified into Unitary and

federal on the basis of concentration or distribution of powers and the nature of the

relationship between the central and the regional authorities. In a Unitary constitution,

supreme power belongs to the Central Governments and there is no constitutional

division of power between the national and regional government.

The term 'Federal' is derived from the Latin word 'Foedus' this means treaty or

agreement. In case of federal constitution, there is a treaty or agreement namely, a

written constitution, which defines and determines the powers of the two sets of

government, national and regional. A federal government is a dual government.1

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A citizen of federal country thus becomes subject to the decree of two

governments- Central and the regional. The Regional Government is called the

State Government as in U.S.A, Australia or India, or Provincial Governments in

Canada.

Definitions:

Following are some of the definitions which help to understand and appreciate the

meaning and nature of federalism.

1. Prof. K. C. Wheare

According to him, "Federal Principle is the method of dividing powers so that

the general and regional governments are each, within a sphere, coordinate

and independent." Existence of coordinate authorities' independent to each

other is the gist of the federal principle.

2. Montesquieu

According to him, "A Constitution by which several similar States agree to

become members of a large one is a federal government."

3. Dicey

According to him, "A federal State is a political contrivance intended to

reconcile national unity with the maintenance of State rights."

Thus in a federal Constitution both the Central and regional governments are

co-ordinate and independent in their spheres and not subordinate to one

another.
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The Constitution of U.S.A. which establishes dual form of government, is a

classic example of federalism.

2.2 TRADITIONAL AND MODERN APPROACH

Federalism is a comparatively modern concept. However, there is no agreed definition

of a federal state. Federalism originates from ancient Greece. Broadly speaking, there

are two approaches to understand the federal system which are as follows:-

1. Traditional approach

Traditional approach place main emphasis on the existence of two independent and

coordinate authorities and Joint plenary powers within the jurisdiction set apart by the

Constitution. According to Prof. K.C. Wheare, the federal principle is the method of

dividing powers so that the general and the regional government are each within a

sphere co-ordinate and independent. On this basis Prof. Wheare finds that there are

only four federations in the world i.e. U.S.A, Canada, Australia and Switzerland. He

puts other federations (e.g. India) in the category of quasi federations. But this

traditional or classic approach has some limitations, it ignores compulsions of socio-

economic forces operating in the modern era which have not left unmolded even the

traditional federations of Prof. Wheare. Thus on strict application of the traditional

tests it is not possible to find a single example of a true federation in the world.

2. Modern approach

The insistence of modern approach on independence in mutual relationship of the

States and the National Government are too idealistic to be followed in the presence

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age of interdependence. This idea of interdependence and cooperation finds concrete

expression in the formulation of concurrent powers, an area over which both the

national and State governments operate. The modern Jurists instead of

interdependence states talk of Cooperative federalism wherein the relationship

between two sets of Governments is that of interdependence. Some writers have

suggested federation as pure creature of expediency whereby the powers are so

distributes between the national and state governments that there is scope for constant

adjustment of relations between the two sets of government according to the

requirement of both time and place. Dicey has defined a federal state, as "a political

contrivance intended to reconcile national unity with maintenance of state rights.

2.3 ESSENTIAL FEATURES OF FEDERALISM Essential features of

Federalism

A Constitution will be a Federal Constitution, if it possesses the following

characteristics:-

a. Duality of Government:

While in a unitary state there is only one government i.e. National

Government or Central Government. But in a federal state, there are two

governments the federal or the central governments and the government of

each constituent's state. This features clearly differentiates between federation

and confederation

b. Distribution of powers:

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The distribution of powers between the centre and the states is the most

important characteristics, rather the core of any federal system. In reality, the

whole federal system revolves around this basic core of distribution of powers.

A federal constitution thus envisages a demarcation or division of

governmental functions and powers between the centre and the regions.

c. Supremacy of the Constitution:

Supremacy of the Constitution is an essential feature of the federal

constitution. The Constitution of USA is a federal Constitution. Consequently,

there is supremacy of Constitution in USA. Any act of any organ of the

government which is against the

Constitution is invalid and of no force. The Legislature, Executive or Judiciary

cannot isolate the Constitution.

The Supremacy of the Constitution is necessary for the establishment and

maintenance of Federal Constitution and Federal Government. No person or

governmental authority is above the Constitution.

d. Written and Rigid Constitution:

Actually it is not necessary for a federal Constitution to be written but in

practice it is always found written, because due to distribution of powers

between the central government and the State governments, an unwritten

federal constitution will create confusion and conflict. Indian Constitution is a

written Constitution.

d. Authority of Courts:

In a federal state, the legal supremacy of the constitution is essential to the

existence of a federal system and to ensure this it is necessary to maintain the

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authority of courts, which must have final power to interpret the Constitution

and guard the entrenched provision of the Constitution.

CHAPTER-3

21
FEDERALISM ENVISAGED BY THE GOVERNMENT OF THE

INDIA ACT, 1935

In India, the historical-process to create the federal-system was different. For long,

before 1935, British India has been administered on a unitary basis. There existed a

unitary-system. But after the end of British-colonies, the unitary system was replaced

by a federal-system. The present federal-system was built on the foundation of the

1935 system.

The past history of India establishes that in the absence of a strong Central-

Government, the country soon disintegrates. This belief was strengthened by the

recent-portion of the country. Therefore adequate precautions have to be taken against

any such future contingency by making the centre strong in Indian-Federalism.

Owing to its vastness of territory and variety of people, India could not be governed

efficiently as a unitary-state and so a unitary constitution was out of question.

India, such a large country with diverse-cultures, religions, languages, tribal and

ethnic differences and even marginal racial variations, with historical, geographical

and political- divergences, cannot bear true faith with democracy and collective

freedom without authentic Federal Features.

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By the act of 1935, the British Parliament set up a federal system in the same manner

as it had done in the case of Canada, by creating autonomous units and combining

them into a federation by one and the same Act. All powers hitherto exercised in India

were resumed by the crown and redistributed between the federations and the

Provinces by a direct grant. Under this system, the provinces derived their authority

directly from the Crown and exercised Legislative and executive powers, broadly free

from central control, within a define sphere. Nevertheless, the Centre regained control

through the Governor's special responsibilities and his obligation to exercise his

individual judgement and discretion in certain matters, and the power of the Centre to

give direction to the Provinces.

The peculiarity of thus converting a unitary system into a federal one can be best

explained in the words of the Joint parliamentary Committee on Indian Reforms: "Of

course in thus converting a unitary state into a federation we should be taking a step

for which there is no exact historical precedent. Federation have commonly resulted

from an agreement between independent or, at least, autonomous Governments,

surrendering a defined part of their sovereignty or autonomy to a new Central

organism. At the present moment the British Indian Provinces are not even

autonomous for they are subject to both administrative and legislative control of the

Government and such authority as they exercise has been in the main devolved upon

them under a statutory rule-making power by the Governor- General in council. We

are faced with the necessity of creating autonomous units and combining them into a

federation by one and the same act."

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It is well worth remembering the peculiarity of the origin of the federal system in

India. Neither before nor under the Act of 1935, were the Provinces in any sense

'Sovereign' States like the States of American Union. The Constitution, too, has been

framed by the people of India assembled in the Constituent Assembly, and the Union

of India cannot be said to be the result of any compact or agreement between the

autonomous States. So far as the Provinces are concerned, the progress had been from

a unitary to a federal organization, but even then, this has happened not because the

Provinces desired to become autonomous units under a federal union, as in Canada.

The Provinces, as just seen, had been artificially made autonomous, within a defined

sphere, by the Government of India Act, 1935. What the makers of the Constitution

did was to associate the Indian States with these autonomous Provinces into a federal

Union, which the Indian States had refused to accede to, in 1935. Some amount of

homogeneity of the federating units is a condition for their desire to form a federal

union. But in India, the position has been different. From the earliest time, the Indian

States had a separate political entity, and there was little that was common between

them and the Provinces which constituted the rest of India. Even under the Federal

scheme of 1935 the Provinces and the India States were treated differently; the

accession of the Indian States to the system was voluntary while it was compulsory

for the provinces, and the powers exercisable by the Federation over the Indian States

were also to be defined by the Instruments of Accession. It is because it was optional

with the Rulers of the Indian States that they refused to join the federal system of

1935. They lacked 'the federal sentiments' (Dicey), that is, the desire to form a federal

Union with the rest of India. But, as already pointed out, the political situation

changed with the lapse of paramountcy of the British Crown as a result of which most

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the Indian States acceded to the Dominion of India on the eve of the Independence of

India.

The credit of the makers of the Constitution, therefore, lies not so much in bringing

the Indian States under the federal system but in placing them, as much as possible, on

the same footing as the other units of the federation, under the same Constitution. In

short, the survivors of the Old Indian States were, with the minor exceptions, placed

under the same political system of the old provinces. The Integration of the Units of

the two Categories has eventually been completed by eliminating the separate entities

of States in Part A and Part B and replacing them by one Category of States, by the

Constitution

(7th Amendment) Act, 1956.

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CHAPTER-4

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NATURE OF INDIAN FEDERAL SYSTEM

There is difference of opinion among the constitutional jurists about the nature of the

Indian constitution. One view is that it is a quasi federal Constitution and has more

Unitary features than federal features.

Article 1(1) of our Constitutions says " India, that is Bharat, shall be a Union of
States."

While submitting the Draft Constitution, Dr. Ambedkar, the Chairman of the Drafting

Committee, stated that "although its Constitution may be federal in structure", the

Committee had used the term "Union" because of certain advantages, these

advantages, he explained in the Constituent Assembly, were to indicate two things,

viz., (a) that the Indian federation is not the result of an agreement by an Units, and

(b) that the component units have no freedom to secede from its.

The word "Union" does not indicate any particular type of federation, in as much as it

is used also in the Preamble of the Constitution of the United States- the model of

federation; in the Preamble of the British North America Act (which according to

Lord Haldane, did not create a true federation at all); in the Preamble to the Union of

South

Africa Act. 1909, which patently set up a unitary Constitution; and even in the

Constitution of U.S.S.R. (1997), which formally acknowledges a right of succession

[ Art. 72] to each Republic, i.e, unit of the Union. We have, therefore, to examine the

provisions of the Constitution itself, apart from the label given to it by its draftsman,

to determine whether it presides a federal system as claimed by Dr. Ambedkar,

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particularly in view of the criticisms leveled against its federal claim by some foreign

scholars.

The difficulty in any treatment of federalism is that there is no agreed definition of a

federal State. The other difficulty is that it is habitual with the scholars on the subject

to start with the model of the United States, the oldest (1787) of all federal

Constitution in the world, and to exclude any system that conform to that model from

the nomenclature of that federation. But numerous countries in the world have, since

1787, adopted

Constitutions having federal features and, if the strict historical standard of the United

States be applied to all these later Constitutions, few will stand the test of Federalism

save perhaps Switzerland and Australia. Nothings is, however, gained by excluding so

may recent Constitutions from the federal class, for, according to the traditional

classification followed by political scientists, Constitutions are either unitary or

federal. If therefore, a Constitution partakes some features of both types, the only

alternative is to analyse those features and to ascertain whether it is basically unitary

or federal, although it may have subsidiary variations. A liberal attitude towards the

questions of federalism is, therefore, inevitable particularly in view of the fact that

recent experiment in the world of Constitution making are departing more and more

from the pure type of either unitary or a federal system. The question whether a State

is federal or unitary is one of degrees and the answer will depend upon how many

features it possesses.

5.1 INDIAN CONSTITUTION- FEDERAL OR UNITARY

Federal features:

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To solve the controversy as the question whether Indian Constitution is federal or

unitary, we have to examine the essential characteristics of a federal Constitution with

the Indian Constitution. Some of the federal features of the Indian Constitution can be

summarized as follows:

1. Existence of Dual Government- There can be no federation unless there are two

sets of governments - one at the centre and the other at regional level. In

India, we have the Government of the Union of India at the Centre and

Governments of various States as regional units of federation. To this extent

Indian Constitution possesses federal element.

2. Distribution of powers- Mere existence of central and regional governments does

not make a constitution federal because this can be possible even in a unitary

government where a large country is divided in several regional units for the sake

of administrative convenience. For a federation, distribution of powers between

central government and regional units is essential and this distribution should be

such as to ensure substantial independence to central as well as regional

governments. In Indian Constitution all legislative powers are enumerated in three

Lists of the Seventh Schedule. In respect of matters enumerated the list I, Union

has exclusive power to legislate and in respect of matters enumerated in List II,

the States have exclusive legislative power. List III is concurrent list. In respect of

matters enumerated in this list, both Union and States have power to legislate, The

Union and States have executive powers also on matters in respect of which they

have power to legislate. Thus, the Constitution provides for distribution of powers

ensuring substantial independence to governments of both levels.

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3. Written constitution- This is strictly not necessary to constitute a federation but

it is a practical necessity that distribution of powers has to be recorded. We have

one of the largest written constitutions of the world.

4. Supremacy of the Constitution- Distribution of powers will be of no use if the

constitution is not treated as supreme and governments are allowed to violate it. In

India, any legislative or executive action of Union or State government will be of

no force if it is against the provisions of the Constitution. Constitution is supreme.

In Sub-Committee on Judicial Accountability v Union of India, the Supreme Court

has held that in India, Constitution not the Parliament, is supreme Constitution is

fundamental and higher law and being so it is the touchstone of limits of powers

of various organs of the State.

5. Independent arbiter of powers- There must be some independent authority to

interpret the constitution and to resolve the disputes between central and regional

governments The authority need not necessarily be the court, but generally courts

are entrusted with this job. Under the Indian Constitution power to interpret the

Constitution rests with the courts and for ensuring independence of courts, the

judges have been given substantial protection in respect of their salaries and

tenure of service. The judges -of the Supreme Court and the High Courts cannot

be removed from service except in accordance with the provisional of Article 124

(4), nor can their salaries or emoluments be varied to their disadvantage.

6. Rigid process of amendment- For a federation it is necessary that power to

amend the constitution should not be given exclusively to centre or regional units.

Both must participate in the process of amendment, Under Article 368, certain

matters, which can affect federal structure, cannot be amended by Parliament

alone even by special majority. At least half of the States must also ratify.

30
Thus, all the essential elements of federal constitution are in principle

embodied in our constitution. Besides these, the Upper House to the centre is

elected by State Legislatures and in Presidential elections, members of both

Houses of Parliament as well as of State Assemblies take part. In spite of all

this our constitution has been branded as quasi-federal by Dr K C Wheare.

Some have called it as unitary with certain federal features Granville Austin in

his book "The Indian Constitution Cornerstone of a Nation" concluded that

our system, if it could be called federal, could be described as "Co-operative

federalism", which implies system with three characteristics:

(i) administrative co-operation between central and regional governments,

(ii) partial dependence of the regional governments upon payments from the central

government and,

(iii) the use of conditional grants by central governments for promotion of

developments in matters constitutionally assigned to regions. The direct question

whether our Constitution is federal or unitary was not seriously considered by the

Supreme Court except in State of West

Bengal v. Union of India1, in which it held by majority that Indian

Constitution is not federal. But the issue involved in the case was

narrow one, that is, whether Union of India could acquire landed

property belonging to state or states could claim immunity because of

federal nature of the, Constitution. However, in In re Under Article

143, the Supreme Court recognizes that the Indian Constitution is a

federal Constitution.

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In Keshavananda v. State of Kerala , some of the Judges of the

Supreme Court regarded federal character of the Indian Constitution

as, an essential or the basic feature of the Indian Constitution. On the

other hand, Beg CJ, in State of Rajasthan v. Union of India, observed

that a conspectus of the provisions of our constitution will indicate

that,' whatever- appearances of a federal structure our Constitution

may have, its operations are certainly judged both by the contents of

powers which a number of provisions carry with them and the use that

has been made of them, more unitary than federal In Satpal v. State of

Punjab, the Supreme court again held that ours is a Constitution where

there is a combination of federal structure with unitary features.

In Pradeep Jain v. Union of India", also the Supreme Court held that

India is not a Federal State in the traditional sense of that term. It is not

a compact of sovereign States which have come together to form a

federation by ceding a part of their sovereignty to the federal-State. It

has undoubtly certain federal features but is still not a federal State. It

has only one citizenship, that is, citizenship of India and a unified legal

system which extend throughout the country

Unitary features :

The following unitary features are relied upon by those who challenge the federal

character of the Indian Constitution:-

1. Process of Formation- A very weak argument is based on the process of

formation of federation. It is said that process of formation of the Indian

32
Constitution has been just the reverse. Before the present Constitution was

framed, India was governed by the Britishers as Unitary State. In State of West

Bengal v. Union of Indiai and Pradeep Jain v. Union of India , this aspect was

given undue emphasis. The process of formation does not affect the federal nature.

There are many federations which came into existence not as a result of a compact

between existing states but as a result of division of existing State. Between

Indian States and former provinces, there has been integration but some bigger

Provinces were divide to form a new State.

2. No separate State Constitutions, single Citizenship- Equally weak arguments

are made on the basis of certain non-essential characteristics which are present in

some important federal Constitutions. For instance, in many federations iiState

have their separate constitutions and citizenship. In Pradeep Jain v Union of

India'5, this aspect was also emphasized. In our country provisions regarding

organisation of government in States are incorporated in the Indian Constitution

itself. States do not have separate constitutions as there is no provision for dual

citizenship, but these matters are incidents of history of a particular federation and

are not essential for co-ordinate functioning of both the tiers of the government-

Centre and States.

3. Union Control over State Executive.

i. Appointment of Governors- The executive head of the state, i e,

Governor is appointed by the President and holds office during his

pleasure. This by itself does not affect federal system very much, because

in almost all matter, he has to act on the advice of his ministers but his

33
position is liable to be misused by the Central Government under certain

circumstances. In fact, it

has been used on several occasions to dismiss the Ministry of an

opposition party in States or to appoint a Chief Minister who has not

majority support in the Legislative Assembly as was done by the Governor

of Jharkhand recently.

ii. Execution of Union laws by State Executive.- The division of executive

powers between the Union and the States is on the basis of division of

Legislative powers. This is provided in Articles 73 (1) and 162, but the

division is not like watertight compartments. The laws made by the Union

on concurrent matters will be primarily administered by States unless

Parliament directs otherwise. The executive powers of the State shall, be

subject to and limited by executive powers of the Union.

iii. Delegation of power by the Union- Even in respect of matters in the

Union list, Union may delegate its functions to States. Similarly, under

Article

258A, the Governor of a State may entrust executive functions of State to

Union or its officers.

iv. Executive Direction - Article 256 says that the executive power of a state

shall be so exercised as to ensure compliance with the laws made by

Parliament and that executive power of the Union may extend to giving of

directions to the states. Article 257 also provides for executive directions

by the Centre as to the manner in which the state executive power is to be

exercised so that exercise of executive power of States should not impede

34
or prejudice the exercise of the executive power of the Union. If the State

fails to carry out directions, the penalty is provided in Article 365. The

President may declare that the government of the State cannot be carried

on in accordance with the provisions of the constitution and enforce

provisions of

Article 356.

4. Control over Legislative Powers of State-

(i) Legislation by Parliament on State Matters under Articles 249 and 252-

Under Article 249, Parliament can legislate on any matter enumerated in the State

list if Council of States passes a resolution by 2/3d majority of members present

and voting that it is in the national interest. Under Article 252, if two or more

States pass resolutions that a particular matter enumerated in State List be

regulated by Parliament, then Parliament shall be competent. In pass legislation

and such legislation shall be in force in those states or in any other State which

adopts it. In fact, these provisions do not affect federal character of the Indian

Union. Legislation under Article

252 is expressly authorized by states themselves and legislation under

Article 249 is also indirectly with the consent of the States, because

Council of States consists of the representatives, of states. Only twelve

members are nominated by the President and some members represent

Union territories. Moreover, such legislation is only a temporary measure.

(ii) Implementation of Treaties, Agreements and Conventions- For implementing

any treaty, agreement or convention with any foreign country or decision of an

35
international conference. Article 253 authorizes Parliament to make Laws for the

whole or part of the country. This provision is necessary. It is the duty of the

Union to maintain relations with the foreign States. If implementation is left at the

mercy of the States, many international commitments would remain

unimplemented or would be delayed. Actually this happened in Canada during

nineteen thirties.

(iii)Inconsistency of Union and State laws- Article 254 provides that if any

law made by State Legislature is repugnant to any provision of law made

by Parliament within its authority or to any provision of existing law with

respect to matters in Concurrent List, then the Parliamentary law or the

existing law, as the case may be, will prevail, It is immaterial whether

Parliamentary law is enacted before or after the enactment of the State law.'

(iv) Presidential assent to State legislation- Article 200 empowers the

Governor to reserve a Bill for consideration of the President who may

either give his assent or withhold it and require the Governor to send it

back to the Legislature with message. When again passed by the

Legislature, it is again sent for the consideration of the President. This

provision is in most of the cases a mere formality. In the case of Kerala

Education Bill, however, the Bill was returned for suitable amendments

but before sending back, opinion of the Supreme Court was obtained.

5. The Judiciary-

(i) Unified Judicial system- United States of America, Australia and some other

federations have double judicial system- federal courts and state courts, but our

constitution provides for unified judicial system like that of Canada.

36
(ii) Appointment of Judges- Appointments of judges of the High Courts and the

Supreme Court are made by the President, who is also the executive head of the

Union Government Power of appointment, no doubt, carries some influence with

it but the constitution makers took sufficient precautions.

Once a Supreme Court or High Court Judge is appointed, he cannot be

removed except by the special procedure mentioned in Article 124(4), Nor

can his salaries or privileges be altered to his disadvantages. In Supreme

Court

Advocates on Record Association v Union of India,iii the Supreme Court

has held that no appointment of Judges of High Court or Supreme Court

can be made by the President except in conformity with the final opinion

.of the

Chief Justice of India. This view has been affirmed by the Court in Special

Reference No. 7 of 1998iv.

6. Financial Control- By system of grants-in-aid, Centre can exercise a lot of

control over State activities. But this is not peculiar in India. This system is now

followed in almost all federations and is essential for cooperative federalism.

7. Emergency Provisions - When the proclamation of emergency is in operation,

Article 250 gives Parliament power to legislate in respect of matters allotted to

State Legislatures. The executive power of the Union extends to giving of

directions as to how the executive power of the State is to be exercised, and the

President may modify financial arrangements between Union and States. In cases

of failure of constitutional machinery in a State, Article 356 authorises the Centre

to assume all powers of the State Government. Similarly, in times of financial

emergency, Article 360 authorises Centre to give directions in financial matters,

37
and all money and financial Bills of the State may be required to be reserved for

consideration of the President. These emergency provisions give almost complete

control to the Centre over States but this is a temporary phase for abnormal

situations. As observed by Dwivedi J. in Keshavananda v.

State of Kerala, vwhen the proclamation of emergency is in force, the cardinal

principle of federation is merely in eclipse In other federations also in times of

war and emergencies wider powers are conceded to the centre to cope with the

situation.

8. Power of reorganization- Under Article 3, Parliament may by law form a new

State, increase of diminish the area of any State ad later its name and boundaries.

This is a very sweeping power given to the central legislative organ. The very

existence and identity of a State can be vanished by Parliament unilaterally.

Though certain checks on the exercise of this power are given in the provision, yet

if the Centre is adamant the States cannot prevent the measure.

It is true that India was never intended to be a federation in the strict sense of

the term The framers were aware of the hardships that were faced by some

important federations during wars and even in peace time in carrying out

nationwide economic reforms or in implementing international agreements or

in checking centrifugal forces threatening the unity of the nation.

The Constituent Assembly purposely Substituted the word "union" in place of

"federation" in Article I of the Constitution to make it clear that federation was

not the result of an agreement by States as such no State has right to secede

from it, that the country is one integral whole and its people, single people

living under a single imperium derived from a single source. While adopting

federal system generally, the framers were keen to preserve the unity of the

38
country and therefore they included certain provisions, which are opposed to

federal principle, to meet certain exigencies. It is capable of functioning as a

federation as well as unitary system according to circumstances. In the

Constituent Assembly, Dr.Ambedkar remarked :

"All federal systems including American are placed in a tight mould of

federalism. No matter what the circumstances, it cannot change its form and

shape. It can never be unitary. On the other hand, the draft constitution (of

India) can be both unitary as well as federal according to the requirements of

time and circumstances.

39
NEW TRENDS IN FEDERALISM

8.1 COOPERATIVE FEDERALISM

Though Indian Constitution has chosen to adopt federal system of government, yet the

constitution does not establish federation in the real sense of competitive federation

where units and centre are co-ordinate and none of the two depends upon the other. As

the new trend in all federations is to have a sort of co-operative federalism with

somewhat dominating powers to the centre, the farmers of the Indian Constitution

have also sought to provide for co-operative federalism. Competitive federalism is

now unworkable because of fast industrial and economic development, trade and

commerce, fast means of transport, defence problems and increasing competition in

business and welfare programmes which require huge expenditure.

The framers of the Indian Constitution intended to provide a federal Constitution with

strong Central Government. Actually our Constitution provides for cooperative

federalism. Various provisions have been incorporated in the Constitution to promote

cooperation among the various governments. This is called cooperative federalism.

Austin has rightly said that if the Indian Constitution can be called federal, it can be

described as 'cooperative federation'. In short, the following factors are responsible for

co-operative federalism:

1. Development of modem means of communication,

2. Expanding horizons of trade and commerce;

3. Defence from external aggression and need for modern sophisticated arms and

ammunitions:

4. Welfare state.

40
In view of these changed conditions, the Constitution makers have made various

provisions in the Constitution itself to ensure working of cooperative federalism in

India In the Indian Constitution, following provisions seek to establish cooperative

federalism:

1. Use of Legislative powers - Though under Article 246 read with three lists of the

VII Schedule there is detailed distribution of powers between the Union and

States, yet both Union and States have been given power to legislate on matters

enumerated in List III, i.e., Concurrent List The State Legislature may regulate the

local aspects of the subjects mentioned therein unless the Parliament chooses to

cover the whole field. Article 249 provides that when the Council of States passes

a resolution by two-third majority of the members present and voting that it is

necessary or expedient in the national interest that Parliament should male law on

any matter enumerated in State List. It shall be lawful for Parliament to make law

for the whole or any part of the territory of India with respect to such matter while

resolution is in force. Such resolution can remain in force for a maximum period

of one year. Its operation can be extended by fresh resolutions for one year so long

as necessary.

Under Article 252 if legislatures of two or more States pass resolutions that a

particular matter in State List should be regulated by Parliament, it would be

lawful for Parliament to pass an Act for regulating such matter.

2. Co-operation in Administrative relations- According to Articles 73 and 162,

executive powers of the Union and States are co-extensive with legislative powers

yet both the Articles provide that in any matter with respect to which both

Parliament and State Legislatures have power to make law. States shall have

41
executive power subject to provisions of the Constitution and law made by

Parliament. Articles 256 and 257 empower Union executive to give directions to

State executive. Under Article 258 Centre can, with the consent of the

Governor, assign its functions to State and similarly under Article 258-A, the

States can, with the consent of the Government of India, assign their functions

to the Central executive.

3. Full faith and credit to public acts, records and Judicial proceedings- Article

261 provides that full faith and credit shall be given throughout the territory of

India to public acts, records and judicial proceedings of the Union and of every

State. This provision is similar to that contained in Article IV of the U.S

Constitution.

4. Resolution of Inter-State water disputes- Article 262 authorises Parliament to

make laws to provide for adjudication of any dispute or complaint with respect to

the use, distribution or control of waters of any inter-state river or river valley

5. All India Services- Article 312 provides that if the council of States declare by a

resolution supported by not less than two-thirds of members present and voting

that it is necessary or expedient in the national interest to create one or more all

India Services, Parliament shall be competent to make law to provide for such all

India Services.

6. Exemption from taxes- Article 285 provides for exemption of properties of the

Union from State taxes arid similarly Article 289 exempts State properties

from Union taxes.

7. Financial co-operation- The whole scheme of distribution of taxing powers

between the Union and the States is based on co-operation between the two.

42
i. Some taxes are levied by the Union but are collected and appropriated by

the States, e.g., such stamp duties and such excise duties on medicinal and

toilet products as are mentioned in the Union List.vi ii. Some taxes are imposed

and collected by the Union but are assigned to States, such as tax on sales and

purchases where such sale or purchase takes place in the course of inter-State

trade or commerce.10 iii. Some taxes are levied and collected by the Union but

are distributed between the Union and the States, such as taxes and duties

mentioned in the Union list, which are not mentioned in Article 268. 11 ii. Apart

from these provisions, Article 275 also makes provision for grants- in-aid to

States.

43
CHAPTER-5

44
FINDINGS
Federalism may further entrench the power and authority of long established political
clans, creating local fiefdoms insulated from electoral challenges.

Federalism may further weaken national unity and identity in states with strong
regionalist and separatist tendencies. However, it may also be a viable response to the
long history of armed separatism in Mindanao.

Federalism may worsen regional and local economic disparities with different
economic
resource endowments and human capabilities.

Fiscal Federalism: Problems of revenue generation and sharing between the central
government and states .

45
CONCLUSION AND SUGGESTIONS

Dr. B.R. Ambedkar, one of the chief architects of the Indian Constitution said: "Our

Constitution would be both Unitary as well as Federal according to the requirements

of time and circumstances.

In historical as well as present context, the above statement is fully correct because:

federalism is not static but a dynamic concept", it is always in the process of evolution

and constant adjustments from time to time in the light of the contemporary needs the

demands being made on it.

For making Indian Federalism more robust and viable, the differences between the

centre and the state must be sort out so that India may successfully meet the great-

challenges of difference, external and internal -security and socio-economic

development. It is very necessary that neither the federal set-up becomes unitary nor

that it becomes too lose and weak, affecting the unitary and integrity of the nation.

As India is a developing nation, federal government is necessary for it to bring

progress. India is a country with unity in diversity. There are so many states that are

unique in their cultures and traditions and still feel strongly the oneness among them.

As each state has its own way of lifestyle and culture, it is important to follow federal

form of government in India. As also the Constitutional laws of India suit the federal

governance, India requires federal ruling to maintain national integration. Indians are

having lot of differences in their language, culture or lifestyle and hence live as

different states. But all Indians feel that they are all one and belong to only one

country.

46
Therefore, India deserves to have Federal Government.

It is time to undertake a study of Indian Federalism with a view to evaluate the trends,

frictions and difficulties which have developed in the area of inter-governmental

relations and to seek to evolve ways and means to meet the challenging task of

making the Indian federation a more robust, strong and workable system so that the

country may meet the tasks of self- improvement and development.

BIBLIOGRAPHY

1. List of sources

list of books referred:-

Indian Constitutional law by Prof MP Jain, 6 lh Edition 2010, published by Lexis

Nexis Butterworths, Wadhwa Nagpur.

Constitutional Law of India by Prof. G.S. Pande, Tenth Edition 2007, published

by M/s University Book House (P) ltd.

Introduction to the Constitution of India by Dr. Durga Basu, 19 th Edition Reprint

2006, published by Wadhwa and Company Law Publishers

Constitutional law of India by V.D. Mahajan, Seventh Edition 1991, published by

Eastern Book Company, Lucknow

Constitutional Law of India by Prof. Narendra Kumar, published by Allahabad

law Agency

47
2. List of websites referred :-

www.wikipedia.com

www.legalserviceindia.com

www.ebc-india.com

www.thehindu.co.in

3. List of cases referred:-

Keshavananda v. State of Kerala, AIR 1973 S.C. 1461.

State of Rajasthan v. Union of India, AIR 1977 S.C. 1361.

Satpal v. State of Punjab, (1982) 1 S.C.C. 12, 16.

Pradeep Jain v. Union of India, AIR 1984 S.C. 1420, 1427.


State of West Bengal v. Union of India, AIR 1963 S.C. 1241

Questionnaire

Name: (Optional) ___________________________________________

Age:

Gender: Female Male

1
The majority of the world's nations have what kind of

48
government?

2 From the colonial period until the present, Americans have lived
under which of the following systems of government?

3 Which of the following is an example of intergovernmental


relations in the United States?

4 The majority of Americans live under the jurisdiction of how


many governments?

5 Which of the following is NOT true about the way the federal
system has developed in the United States?

6 Why does the U.S. Constitution spell out so few examples of state
authority?

49
7 Which of the following types of powers is given to Congress
through the necessary and proper clause?

8 Which of the following is NOT among the enumerated powers of


the federal government?

9 State governments are sovereign within their own borders over


matters the Constitution distributes to them, with the exception of

50
i

ii

iii

iv

vi