CHAPTER 2

FEDERALISM IN INDIAN CONSTITUTION

[A]. Historical Background

Before analyzing the main features of the system introduced by

this Act, it should be pointed out that this Act went one step forward in
perpetuating by the communal cleavage between the Muslim and the
non- Muslim communities by prescribing separate electorate on the basis
of the ‘Communal Award which was issued by Mr. Ramsay MacDonald,
the British Prime Minister on August 4, 1932, on the ground that the two
major communities have failed to come to an agreement. From now
onwards, the agreement between the two religious communities was
continuously hoisted as a condition precedent for any further political
advance. The Act of 1935, it should be noted, provided separate
representations not only for the Muslims, but for the Sikhs, the
Europeans, Indian Christians and the Anglo Indians and thus created a
serious hurdle on the way of the building up of the national unity, which
the makers of the future Constitution found it almost insurmountable to
overcome even after the Muslims had partitioned for a separate state.

The Features of Government of India Act, 1935:

(i)The Federal Scheme.- While under all the previous Government

of India Acts, the Government of India was unitary, the Act of 1935
prescribed a federation, taking the provinces and the Indian state as
units.

(A)Under the pre-existing unitary system the provinces were under

the Administrative as well as legislative control of the central government
from whom their authority was derived. Though under the Government
of India Act, 1919, the Provincial executive exercised powers over a wide
field and was responsible to the Provincial Legislature matters, the
essence of the political system was-

“A unitary and centralized government with the Governor-general in the

council as the keystone of the whole constitutional edifice, and it is through
the Governor-general in council that the secretary of state and the
Parliament discharge their responsibilities, for the peace, order and good
Government of India.”1

In short, throughout the British rule and in spite of the reforms

introduced by the Government of India Act, 1919, the Central
Government remains the agent of the Secretary of State who was
responsible to the British Parliament and the provinces derived their
authority by devolution from the Central Government.

The Indian States, which were ruled by hereditary Chiefs,

enjoyed various degrees of internal sovereignty, but were controlled by
the Governor-General so far as their external relations were concerned
and even in internal affairs, the Governor-General, as the vice Roy or
representative of the Crown, held a reserve of power to interfere in cases
of maladministration and the like, by virtue of the crown’s suzerainty
which was conveniently referred to as paramountcy.

The Governor-General, thus, formed the apex of this highly

centralized system.

(B)The Government of India Act, 1935, proposed to unite the

Provinces and the Indian States into a federation under the Crown. So
far as the Provinces were concerned, this involved the process of
breaking up the unitary State into a number of autonomous Provinces
which were to derive their authority directly from the Crown (instead of
from the Central Government as under the previous system), and then
building them up into a federal structure, in which both the Federal and
Provincial Governments should get definitely demarcated powers by
direct delegation from the Crown. As the Simon Commission put it-

1
Rep. of the joint Parliamentary Committee(1933-34)
“In any new constitution, in which autonomous Provinces are to be
federally united under the Crown, not only can the Provinces no longer
derive their power and authority from devolution by the Central
Government, but the Central Government cannot continue to be the agent
of the Secretary of the State. Both must derive their powers and authority
by a direct grant by the Crown. We apprehend, therefore, that the legal
basis of a reconstituted Government of India must be, first, the resumption
into the hands of the Crown all rights, authority and jurisdiction in and
over the territories in British India, whether they were at present vested in
the Secretary of State, the Governor-General in Council, or in the Provincial
Government and Administrations: and second, their redistribution in such
manner as the Act may prescribe between the Central Government on the
one hand and the provinces on the other.”2

The federal structure envisaged by the Government of India Act, 1935,

however never came into being; for it was optional3 with the Indian states
to join the proposed Federation, and they naver gave their concent.

(ii)Provincial Autonomy- Federation never took effect, the Part relating to

Provincial Autonomy was given effect since April, 1937. The Act divided
legislative powers between the Provincial and Central legislatures, and
within its defined sphere, the Provinces were no longer delegates of the
Central Government, but were autonomous units of Administration. To
this extent, the Government of India assume the role of a federal
government vise a vise the Provincial Governments, though the Indian
States did not come into the fold to complete the scheme of federation.

The executive authority of a Province was also exercised by the

Governor on behalf of the Crown and not as a subordinate of the

2
This was done by Government of India Act, 1935.
3
Ss. 5-6 Government of India Act, 1935.
Governor-General. The Governor was required to act with the advice of
the Ministers responsible to the Legislature.

But notwithstanding the introduction of Provincial Autonomy, the

Act of 1935 retained control of the Central Government over the
Provinces in a certain sphere,- by requiring the Governor to act, ‘in his
discretion’ 4 or in the exercise of his ‘individual judgment’ 5 in certain
matters. In such matters, the Governor was to act without ministerial
advice, and under the control and direction of the Governor General,
and, through him, of the Secretary of State.

The Governor General’s power to give directions6 and the Governor

extraordinary powers of legislation, independent of the Provincial
Legislature, 7 also operated as fetters upon the full play of Provincial
autonomy. The Governor had also the power acting in his discretion to
make a proclamation that there was a failure of the constitutional
machinery and assumes to himself all executive and legislative powers in
the Province.8

(iii)Diarchy at the Centre- The executive authority of the Centre was

vested in the Governor- General (on behalf of the Crown), whose
functions were divided into two groups:-
(a) The administration of defense, external affairs, ecclesiastical
affairs, and of tribal areas, was left to the Governor General ‘in his
discretion with the help of councilors’, appointed by him who were not
responsible to the Legislature.

4
Cf . Ss 11, 102, 126(4), Government of India Act, 1935
5
S 12 Government of India Act, 1935.
6
Sec. 126 Government of India Act, 1935
7
Sec. 43-44 Government of India Act, 1935
8
Sec. 93 Government of India Act, 1935
(b) With regard to matters other than the above reserved subjects, the
Governor General on the advice of a ‘Council of ministers’, who were
responsible to the Legislature. But even in regard to this latter sphere,
the Governor General might act contrary to the advice so tendered by the
ministers if any of his ‘special responsibilities’ were involved. As regards
the special responsibilities, the Governor General was to act under the
control and directions of the Secretary of State.

But, in fact, neither any ‘Councilors’ nor any Council of

Ministers responsible to the Legislature came to be appointed under the
Act of 1935; the old Executive Council provided by the Act of 1919
continued to advice the Governor General until the Indian Independence
Act, 1947.

(iv)Distribution of legislative powers between the Centre and the

Provinces- Though the Indian States did not join the Federation, the
federal provisions of the Government of India Act, 1935, were in fact
applied as between the Central Government and the Provinces. The
division of power between the Centre and Provinces is of special interest
to the reader in view of the fact that the division in the Constitution
between the Union and the States proceeds largely on the same lines.

A threefold division was made in the Act –

(i) There was a federal list over which the federal legislature
has exclusive power of legislation. This list included
matters such as External affairs; currency and coinage;
naval, military and air forces; census.
(ii) There was a Provincial list of matters over which the
provincial legislature has exclusive jurisdiction, e.g.,
Police, Provincial Public Service, and Education.
 (iii) There was a Concurrent List of matters over which both
the Federal and Provincial had competence, e.g., Criminal
law and procedure; Civil procedure; marriage and divorce,
arbitration.

The federal Legislature had, however, the power to legislate with respect
to matters enumerated in the Provincial list if a Proclamation of
Emergency was made by the Governor General.9 The Federal legislature
could also legislate with respect to a Provincial subject if the Legislature
of two or more provinces desired this in their common interest.10

In case of repugnancy in the concurrent field, a Federal law prevailed

over a Provincial law to a extent of the repugnancy, but if the provincial
law received the assent of the Governor-General or of His Majesty, having
been reserved for their consideration for this purpose, the provincial law
prevailed, notwithstanding such repugnancy.11

The allocation of residuary power of legislation in the Act was unique. It

was not vested in either of the Central or Provincial Legislature but the
Governor-General was empowered to authorize either the Federal or the
Provincial Legislature to enact a law with respect to any matter which
was not enumerated in the legislative Lists.12

(v)Non sovereign character of the Legislatures- the Central Legislature

was bi-cameral, consisting of the House of Assembly and the Council of
State.

9
Sec. 102 Government of India Act, 1935.
10
Sec. 103 Government of India Act, 1935.
11
Sec. 107 Government of India Act, 1935.
12
Sec. 104 Government of India Act, 1935.
In six of the Provinces, the Legislature was bicameral, consisting of a
Legislative Assembly and a Legislative Council. In the rest of the
Provinces, the Legislature was unicameral.

The Legislative powers of both the Central and Provincial Legislature

were subject to various Legislations and neither could be said to have
possessed the features of a sovereign Legislature. Thus, the Central
Legislature was subject to the following limitations:-

(i) Apart from the Governor-General’s power of veto a Bill

passed by the Central legislature was also subject to veto
by the Crown.13
(ii) The Governor-General might prevent discussion in the
Legislature and suspend the proceedings in regard to any
bill if he was satisfied that it would affect the discharge of
his special responsibilities.14
(iii) Apart from the power to promulgate Ordinances during
the recess of the Legislature, the Governor-General has
independent power of Legislation, concurrently with those
of the Legislature. Thus, he had the power to make
temporary Ordinances as well as permanent Acts, at any
time, for the discharge of his special responsibilities.
(iv) No Bill or amendment could be introduced in the
Legislature without the Governor-General’s previous
sanction, with respect to certain matters, e.g., if the Bill
or amendment sort to repeal or amend or was repugnant
to, any law of the British Parliament exceeding to India or
any Governor-General’s or Governor’s Act, or if it sort to
effect matters as respects which the Governor Genera was
required to Act in his discretion.

13
Sec. 32 Government of India Act, 1935.
14
Sec. 40(2) Government of India Act, 1935.
There were similar fetters on the Provincial Legislature.

(vi)The Federal Court- Consistent with the Federal scheme introduced

by the Act of 1935, it set up, for the first time, a Federal Court for India.
The provisions relating to this Federal Court are of great interest in view
of the fact that this Court- was a precursor of the Supreme Court under
the Constitution and that many of the provisions of the Act of 1935
relating to the Federal Court have been substantially adopted in the
Constitution as regards the Supreme Court.

The Federal Court, as the guardian of the Federal system, had an

original jurisdiction to determine dispute between the units of the
federation inter se (s. 204). It was also the appellant court from the High
Courts in the Provinces and the Indian States on Constitutional
questions, that is to say, on questions involving the interpretation of the
Government of India Act, 1935, and the Orders in Council made there
under (Ss. 205, 207).

Besides the Federal Legislature was empowered to confer upon the

Federal Court civil appellate jurisdiction which so long belonged to the
Privy Council was transferred to the Federal Court.

Appeal however lay from the decision of the Federal court to the Privy
Council (s. 208) until such appeal was abolished by the enactment of the
Abolition of Privy Council Jurisdiction Act,1949.

[B]. A Federal Structure with Unitary Features

Since the framers of our constitution sought to combine the best features
of different constitutional system in the word and to avoid the vices
inherent in any particular system, they had naturally, to effect a
compromise between opposite theories and models on several vital
points. One of these is combination of a federal structure with unitary
features.

There has been much controversy among the scholars as to

whether the system of polity introduced by the Indian Constitution is
‘federal’ or not. The Drafting Committee described the Constitution as
‘Federal in Structure’ but they preferred to call it a ‘Union’ to indicate two
essential features of Indian federalism, namely,

(a) That the Indian federation is not the result of an agreement by the
units and

(b) That the component units have freedom to secede from it.

The label used by the makers of the Constitution is not, however,

conclusive on the question whether the polity introduced by it may
legitimately claim to be classified as federal: we have to examine the
relevant provisions of the Constitution itself, with reference to the
standards which are applied by the political scientists to classify the
political system as unitary or federal.

Different types of federal constitution in the modern world

The difficulty of 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 United States, the
oldest (1787) of all federal constitution in the world, and to execute any
system that does not conform to the model from the nomenclature of
‘federation’. But numerous countries in the world have, since 1787,
adopted Constitution having Federal features and, if the strict historical
standard of the United States is applied to all these Constitutions, few
will stand the test of Federalism save perhaps Switzerland and Australia.
Nothing is however gained by excluding so many recent Constitutions
from the Federal Class, for according to the traditional Classification
followed by the political scientist, Constitutions are either Unitary or
Federal. If therefore, a Constitution partakes of some features of both
types, the only alternative is to analyze those features and to ascertain
whether it is basically unitary or federal, although it may have subsidiary
variations. A liberal attitude towards the question of Federalism is
therefore inevitable particularly in the view of the fact that recent
experiments in the world of Constitution making are departing more and
more from the ‘pure’ type of either a Unitary or a Federal system. A
scholar has thus observed that the question whether a State is federal or
unitary is one of degree and the answer will depend on how many federal
features the State possess. Another American scholar has observed that
the federation is more a “functional” than an “Institutional” concept and
that any theory which asserts that there are certain inflexible
characteristics without which a political system cannot be federal ignores
the fact “that institutions are not the same things in different social and
cultural environments”.

To anticipate a conclusion, the Constitutional system of India is

basically Federal, but of course, with striking Unitary features. In order
to come to this conclusion we have to formulate the essential minimum
features of a Federal system as to which there is common agreement
amongst political scientists. Though there may be difference in matters of
detail, the consensus of opinion is that a federal system involves the
following essential features:

[C]. Essential Features of a federal polity

(a)Supremacy of the Constitution.- A federal State derives its existence

from the Constitution, just as a corporation derives its existence from the
grant by which it is created. Every power- executive, legislative, or
judicial,- whether it belongs to the federation, or to be component States,
is subordinate to and controlled by the Constitution.

(b) Dual Government.- While in a unitary State, there is only one

government, namely the national Government, in a federal State, there
are two Governments,- the national or federal Government and the
Government of each component State.

Though a unitary State may create local sub-divisions, such local

authorities enjoy autonomy of their own but exercise only such powers
as are from time to time delegated to them by National Government and
it is competent for the national Government to revoke the delegated
powers of any of them at its will.

A federal State on the other hand, is the fusion of several States

into a single State in regard to matters affecting common interests, while
each component State enjoys autonomy in regard to other matters. The
component states are not mere delegates or agents o the federal
Government but both the federal and the State Government draw their
authority from the same source, viz, the Constitution of the land. On the
other hand, a component State has no right to secede from the federation
at its will.

(c)Distribution of Powers.- it follows that the very object for which a

federal State is formed involves a division of authority between the
federal Government and the States. This is what Prof. WHEARE (f.n…..-
WHEARE, Federal Government, 2nd Ed., 11;28.)describes as the ‘federal
principle’, i.e., “the method of dividing powers so that the General and
Regional Governments are each, within a sphere co-ordinate and
independent.” While in a unitary state, the demarcation of powers
between the Central and local Governments is made by the Central
Government and is alterable by itself, in a federal State, this demarcation
is mede by the written Constitution which is source of authority of both
the Governments and it can be altered only by amendment of that
organic instrument.

(d)Authority of Courts.- in a federal state the legal supremacy of the

Constitution is essential to the existence of the State. It is essential to
maintain the division of powers not only between the co-ordinate
branches of the Government, but also between the central government
and the state themselves. This is secured by having in the Courts (f.n-----
-an exception to the general rule is furnished by the Switzerland where
the federal Supreme Court has no power to guard the constitution as
against the federal legislature) a final power to interpret the Constitution
and to nullify any action on part of the Federal and State Governments
or their different organs which violates the provisions of the Constitution.

These essential federal features exist under the Constitution of

India:

Not much pain needs be taken to demonstrate that the political

system introduced by our Constitution possesses all the above essentials
of a federal polity. Thus, the Constitution is the supreme organic law of
our land, and both the Union and the State Governments as well as their
respective organs derive their authority from the Constitution, and it is
not competent for the States to secede from the Union. There is a division
of legislative and administrative powers between the Union and the State
Governments and the Supreme Court stands at the head of our Judiciary
to jealously guard this distribution of power and to invalidate any action
which violates the limitations imposed by the Constitution. This
jurisdiction of the Supreme Court may be resorted to not only by a
person (f.n….- Cf. Gujrat University v. Sri Krishna, AIR 1963 SC 703
(715-6); Waverly Mills v. Raymon &Co., AIR 1963 SC 90(95))who has
been affected by a Union or State law which, according to him has
violated the Constitutional distribution of powers but also by the Union
and the States themselves by bringing a direct action against each other,
before the Original Jurisdiction of the Supreme Court under Art.
131(f.n……- Cf. State of West Bengal v. Union Of India, AIR 1963 SC
1241). It is because of these basic federal features, that our Supreme
Court has described the Constitution as ‘federal’(f.n……-Cf; Atiabari Tea
Co,. v. State of Assam, (1961 1 SCR 809 (860); Automobile Transport v.
State of Rajasthan, AIR 1962 SC 1406(1416).

Though our Constitution possess these fundamental elements of a

federation, it possesses so many unique features that it has been
variously characterized by foreign observers as ‘quasi-federation’(f.n…..-
WHARE, Federal Government, 2nd Ed., 11;28), ‘a unitary state with
subsidiary federal features’(f.n…..-WHARE, India’s New Constitution
Analyzed, (1950)5 DLR 25 (Journal)) , ‘a federation with strong
centralizing tendency’(f.n…..-JENNINGS, Some characteristics of the
Indian Constitution).

[D]. Peculiar features of Indian federalism

In order to make proper estimate of Indian federation it is,

therefore, necessary to examine its peculiar features with reference to
other federal system, particularly the American, which is still regarded as
the mother of the federal Constitution.

(A)The mode of formation.- a federal union may be formed in either of

two principal ways, having regard to pre-existing condition of a
component units,- (i) it may be formed by a voluntary agreement between
a number of sovereign and independent States, for the administration of
certain affairs of general concern, as in the case of the United States of
America or Australia; or (ii) the provinces of a unitary State may be
transformed into a federal union, as happened in the case of Canada.
The provinces of Canada had no separate or independent existence apart
from the colonial Government of Canada, and the Union was not formed
by an agreement between them but was imposed by the British statute,
which withdrew from the provinces all their former rights and then re-
divided them between the Dominion and the Provinces(f.n…..- CLOKIE,
Canadian Government and Politics, 1944,p.206).

According to LORD HASLDANE in A.G. for Commonwealth v.

Colonial Sugar Refining Co., the former represented the true federation
only in loose sense:

“In a loose sense, the word ‘federal’ may be used , as it is there (in
Canada) used. To describe any arrangement under which self-contained
States agree to delegate their powers to a common Government with a
view to frame entirely a new Constitution even of the States themselves.
But the natural and literal interpretation of the word confines its
application to cases in which these states, while agreeing on a measure
of delegation, yet in main continue to preserve their original
Constitution.”(f.n……- A.G. for Commonwealth v. Colonial Sugar Refining
Co.,(1914)AC 237)

The Australian federation thus represented the true type:

“Their Lordships are called upon-to interpret the legislative compact

made between the Common wealth and the States, and they have to
determine on the language of the Statute (the Commonwealth of
Australian Constitution Act), what rights of legislation the federating
colonies declared to be reserved to themselves. It is clear that any change
in the existing distribution of powers has been safeguarded in such
fashion that….. the Commonwealth Parliament could not legislate so as
to later the distribution merely of its own motion”(f.n…..- A.G. for
Commonwealth v. Colonial Sugar Refining Co, (1914)AC237).

Of the Canadian Constitution on the other hand, his Lordship

observed-

“Although it has been founded on the Quebec Resolution and so must be

accepted as a treaty of Union among the then provinces, yet when once
enacted by the imperial parliament, it constituted fresh departure and
establish new Dominion and Provincial Government with defined power
and duties both derived from the Act of Parliament which was their legal
source”.

India had a thoroughly unitary Constitution until the Government

of India Act, 1935. The provincial governments were virtually the agents
of the Central Government, deriving powers by delegation from the latter
(p. 8-10, ante). To appreciate the mode of formation of federation in
India, we must go back to the Government of India Act, 1935, which for
the first time introduced the federal concept in the Constitution.

Federation as envisaged by the Government of India Act, 1935:

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, viz., “by
creating autonomous units and combining them into federation by one of
the same Act.” It did not emerge out of any ‘federal sentiment’ nor did it
come into being as a result of a compact or agreement between the
existing States to delegate some of their powers to a common
Government. Al powers hitherto exercised in India were resumed by the
Crown and redistributed(f.d…..- In a manner similar to that of British
North America Act, 1867) between the Federation and the Provinces by a
direct grant. Under this system the Provinces derived their authority
directly by crown and exercised legislative and executive powers, broadly
free from Central control, within a defined sphere. Nevertheless, the
centre retained control through ‘the Governor’s special responsibilities’
and his obligation to exercise his individual judgment and discretion in
certain matters, and the power of the Centre to give directions to the
Provinces.(f.d……- though the federal system as envisaged bt the
government of India Act 1935 could not fully come into being owing to
the failure of the Indian States to join it, the provisions relating to the
provinces and Central Government was given effect as above)

The peculiarity of thus converting unitary system into a federal one

can be best explained in the words of 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 developed 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 federation by one
and the same Act”.

Not the result of a compact: It is well worth remembering this

peculiarity of the origin of federal system in India. Neither before nor
under the Act of 1935, the provinces were in any sense ‘sovereign’ states
like the States of the American Union. The Constitution, too, had 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 autonomous States(f.n….- supported by the majority
decision in State of W.B. v. Union of India AIR 1962 SC 1241). So far as
the Provinces are concerned, the progress has 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, 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 there desire to form a federal union. But in India, the position has
been different. From the earliest times, the Indian States had a separate
political entity, and there was little that was common in between them
and the Provinces that constituted rest of India. Even under the federal
scheme of 1935 the Provinces and the Indian States were treated
differently; the accession of the Indian States 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 was 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 sentiment’ (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 of the Indian States acceded to the
Dominion of India on the eve of Independence of India and they were
brought within the Union envisaged by the Constitution by a process of
‘merger’ and ‘integration’ which is fully dealt with in Part VII, post).
 The credit of the makers of the Constitution 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 (States in Part B of the First Schedule)were, with minor
exceptions placed under the same political system as the old provinces
(States in Part A). the integration of the units of the units of the two
categories has eventually been completed by eliminating the separate
entities of the States in Part A and States in Part and replacing them by
one category of “States” by the Constitution (Seventh Amendment) Act,
1956.

The federal plan of the Constitution is thus uniform and not

heterogeneous, as it was under the Act of 1935.

(A)Position of States in the federation.- From the historical background

it has become already evident that the position of the States in our
federal scheme must necessarily be somewhat subordinate to that of the
Union. As the federation was not the result of any compact between the
Independent States, there was no problem before the makers of the
Constitution-how to maintain ‘State rights’. From this has resulted a
departure from strict federal Principle on several points:

(i)The American federation has been described “an indestructible

Union composed of indestructible States.”(Texas v., White, (1868)7 Wall,
700(720). It is not possible for the National Government to redraw the
map of the United States by forming new States or by altering the
boundaries of the States as they existed at the time of compact without
the consent of the Legislature of the States concerned(f.n…..-Art. IV, S.
3(1) of the American Constitution). The same principal is adopted in the
Australian Constitution(f.n…..- Ss. 123-4 Australian Constitution)(f.n….-
State of W.B v. Union of India, AIR 1963 SC 1241) with the further
safeguard superadded that a popular referendum is required in the
affected State to alter its boundaries.

A state may be eliminated or reformed without its concent: But

under our Constitution, it is possible for the Union Parliament to
recognize the States or to alter their boundaries or to eliminate a State
altogether by a simple majority in the ordinary process of the legislation
(Art. 4(2)). The Constitution does not require that the consent of the
Legislatures of the State is necessary for enabling parliament to make
such laws; only the President has to ascertain the views of the
Legislature of the State or States concerned before recommending a Bill
for the purpose to the Parliament, and if any State Legislature does not
express its views within the period fixed by the President, the Bill may be
introduced in Parliament even without obtaining the views of that State.
“Parliament is therefore……… invested with authority to alter the
boundaries of any State and to diminish its areas so as to even destroy
the boundaries of State with all its power and authority”.

The reason why such a liberal power was given to the national
Government to reorganize the States is that the grouping of the Provinces
under the Government of India Acts was based on historical and political
reason and not on social, cultural or linguistic divisions of the people
themselves. The question of reorganizing the units according to natural
alignment was indeed raised at the time of making of the Constitution
but then there was not enough time to undertake this huge task.

Reorganisation of states: The comparative ease with which such re-

organization is possible is demonstrated by the fact that within three
years of commencement of the Constitution, a new State name Andhra
was formed by subdividing the State of Madras (see, further, under Arts.
3-4, post). Shortly hereafter, the whole question of reorganization of the
States composing the Union was referred to a State Reorganization
Commission in December 1953, to have the question.

“carefully examined ……… so that the welfare of the people of each

constituent units as well as of the nation as a whole is promoted.”(f.n….-
No, 53/69/53-Pubic, Dt. 29-12-53, Gaz. of India, Extraordinary, part 1,
Sec. 1, Dt. 29-12-53)

As will be explained more fully hereafter (see under Art. 1, post), in

pursuance of the recommendation of this Commission(f.n….- Report of
the State Recommendation Commission 1955), the entire structure of the
Union has been recognized by enacting the States Recognition Act (7 of
1956), followed by the Constitution (Seventh Amendment) Act, 1956. By
this Act the number of States which was 27 in the original Constitution
(in different categories), was reduced to 14. This process of
reorganization was ever continuing as will be evident from the formation
of so many States, subsequently, e.g., Himachal Pradesh, Manipur,
Meghalaya, Nagaland, Tripura, Haryana, Mizoram, Sikkim, Arunachal
Pradesh, Jharkhand, Goa.(f.n…..- vide p. 403 of the 14th Ed. Of
Introduction to the Constitution)

(ii)Not only does the Constitution offer no guarantee to the States

against their territorial integrity being affected without their consent,-
there is neither any theory of ‘equality of State rights’ underlying the
federal scheme in our Constitution, since it is not the result of any
agreement between the States.

One of the essential principles of American federalism is the

equality of the component States under the Constitution, irrespective of
their size or population. This principle is reflected in the equality of
representation of the States in the upper House of the federal Legislature
is followed in the Australian Constitution as well. But in Canada, while
each of three original provinces has 24 members, the number of
members from other provinces, subsequently added, varies down to a
minimum of 4.

No federal equality of states: Under our Constitution there is no

equality of representation of the States, in the Council of States. As given
in the Fourth Schedule, the number of members from the several States
varies from 1 to 34, such being the composition of the upper Chamber in
our Constitution, the federal safeguard against the interests of the lesser
States being overridden by the interests by the interests of the larger or
the more populated States is absent under our Constitution.

Further, like the Canadian Senate, our Council of States does not
exclusively represent the federal principle in as much as it consists of 12
nominated members (Art.80) apart from the representatives of the States.

No state excepting Kashmir, can draw its own constitution:

(iii)The States, under the Indian Constitution, have no right to
determine their own constitution. While the Constitution of the United
States (1787) simply drew up the Constitution of the national
Government leaving it in “the main (to the States) to continue to preserve
their Original Constitution” (or in case of new admissions- to draw up
their own Constitution by a Convention) or to amend them, the
Constitution of India, like that of Canada, prescribes the Constitution of
the Union as well as those of the States(with one exception in case of
Jammu & Kashmir). The States of the Indian Union have no right or
power anterior to or apart from this Constitution(f.n……- Cf, Bank of
Toronto v. Lambe, (1887)12AC 575.

Unlike in Canada,(f.n….- S.45 of the Canada Act, 1982(SCW (3RD),P.107),

on the other hand, the States under our Constitution have no
independent power to make alteration in their own Constitution and even
the abolition of a second Chamber in a State requires a law of Parliament
(Art. 169).

No dual citizenship or administration: Nature of the polity.- As a

radical solution of the problem of reconciling national unity with “State
right’, the framers of the American Constitution made a logical division of
everything essential to sovereignty and created a dual polity, with a dual
citizenship, a double set of officials and a double system of Courts.

An American is a citizen not only of the State in which he resides

but also of the United States, i.e., of the federation; and both the federal
and the State Governments, each independent of other, operate directly
upon the citizen who is thus subject to two Governments, and owes
allegiance to both.

But the Indian Constitution, like the Canadian, does not introduce
any double citizenship but provides for one citizenship, viz., - the
citizenship of India (Art. 5).

Secondly, though the Union and the States shall have their own
public services, there is no clear-cut bifurcation in the administration of
the Union and the State Laws as in the U.S.A. in India, the majority of
the public servants are employed by the States, but they administer both
Union and the State laws as are applicable to their respective States by
which they are employed. Our Constitution provides for the creation of
All India Services, but they are to be common to the Union and the
States (Art. 312). Members of the Indian administrative service,
appointed by the Union, may be employed either under some Union
Department (say, Home or Defence) or under a State Government, and
their services are transferable, and even when they are employed under a
Union department, they have to administer both the Union and the State
laws as are applicable to the matter in question. But even while serving
under a State, for the time being, a member of all-India Service can be
dismissed or removed only by the Union Government, even though the
State Government is competent to initiate disciplinary proceeding for that
purpose.(f.n….-Cf, Kanpur Singh v. Union of India, AIR 1960
SC493(497))

Thirdly, though, in general, the Constitution divides the ‘executive’

power between the Union and the States on the basis of the division of
legislative powers (Arts 73(1); 162), this is not intended to be a partition
into water-tight compartments as in the U.S.A. Thus,-

(a)As regards laws made by the Union on ‘concurrent’, subjects,

the executive power will be primary exercised by the States, unless
Parliament directs otherwise (Proviso to Arts 73(1), 162).

(b)Even as regards ‘Union subjects’, the union may delegate its

executive functions to a State, either by legislation by Parliament or by
consent of the State Government (art. 258). Conversely, the States may
entrust their function to the Government of India, with the consent of the
latter (Art. 258A)

(c)On the other hand, the Constitution specifically makes it the

duty of the States to execute the Union laws and the executive powers of
the State must also be so exercised as not to interfere with the executive
power of the Union (Arts. 256-7), and in these matters, the States shall
be under the direction of the Union. Herein, the framers of the
Constitution appear to have been influenced by the pre-existing system, -
i.e., under the Government of India Act, 1935(f.n……-Vide J.P.C. Report,
Vol. 1, para 219, p.120; S26 Government of India Act, 1935). Such a
plan of giving directions by the Union to the States is totally foreign to
the American Constitution.

(d)Not only is the Union entitled to give directions to the States,

failure on the part of a State to carry out the directions of the Union (Art.
365) would entitle the Union to supersede the State Government, for the
time being, by assuming to itself the powers of the State Government
(Art. 356).

Fourthly, there is no dual system for the administration of justice

under our Constitution. In the U.S.A., there is a federal judiciary, with a
hierarchy of Courts with the United States Supreme Court at its head,
for the trial of cases relating to federal laws and other federal matters;
and there is a separate system of Courts in each State, headed by the
State Supreme Court for the enforcement of the State laws. But the
working of this dual system has been cumbersome and productive of
delays in the administration of justice.(f.n…..- DOUGLAS FROM
MARSHALL TO MUKHERJEE (TLL 1956)p. 86)

No dual system of courts: India has, therefore, discarded the

American model of dual system of Courts. Under the Constitution of
India, there is (as in Canada) one integrated system of Courts, for the
administration of both Union and the State laws, with the Supreme court
at the top as the final appellate court in all matters, whether they relate
to Union or State laws (Art. 132-6). Of course, there is a provision in the
Constitution (Art.247) empowering parliament to create additional Courts
for the better administration of Union Laws, but no such court has yet
been established and it may be reasonably expected that we are not
going to have any separate system of federal laws as a regular feature of
judicial administration, for while, the American experience of entrusting
State Courts with the enforcement of Federal laws during the period of
confederation was unsatisfactory(f.n….- FERGUSON &Mc HENRY,
American Federal Government,1947. P.308). In India the unified system
of Courts exits from the beginning of the British regime, and no change
was suggested when a federal scheme was first planned by the framers of
the Government of India Act, 1935, because the experience of a unified
system was too deep-routed to be disturbed.

Not only is the judicial organization under our Constitution

unified, the control over the judiciary is also unified or centralized, for
though ‘administration of justice’ is a State subject (Entry 3 List II), the
judges of the State High Courts are to be appointed and removed by the
Union in the same manner as the judges of the Supreme Court (Art. 217)

(D) Strong Central Bias

Even though there is a distribution of power between the Union

and the states as under a federal system, the distribution has a strong
Central bias and powers of the state are hedged in which various
restrictions which impede their sovereignty even within the sphere
limited to them by the distribution of powers basically provided by the
Constitution.(f.n……- State of West Bengal v. Union of India, AIR 1963
SC 1241 . )

Firstly, it may be observed that many subjects which were in the

State or the Concurrent list in the Government of India Act, 1935, were
transferred by the Constitution to the Union list so that the factors of
economic and industrial progress could be placed under the unified and
centralized control or administration. Instances to the point are Entries
in the Union list relating to the National Highways (Entry 23); Inter-state
trade and commerce (Entry 42).

Secondly, the sphere of legislation allocated to the Union by the

Legislative Lists can be enlarged at the cost of the States even in normal
times. These various modes of expansion of the Union power are:

The constitution provides for enlargement of the federal legislative

power in certain contingencies:

(a)In the national interest- Parliament shall have the power to

make laws with respect to any matter included in the State List, for a
temporary period, if the Council of states declare by a resolution of 2/ of
its members present and voting, that it is necessary in the national
interest that the Parliament should have power to legislate over such
matters. Each such resolution wil give a lease of one year to the law in
question. A law made by Parliament which Parliament would not but for
the passing of such resolution have been competent to make shall, to the
extent of incompetency, cease to have effect on the expiration of a period
of six months after the resolution has ceased to be in force, except as
respects things done or omitted to be done before the expiration of the
said period. The resolution of the council of states may be renewed for a
period of one year at a time (Art 249).

(b)By agreement between States-if the Legislatures of two or more

states resolve that it shall be lawful for the parliament to make law with
respect to any matters included in the State list relating to those States,
Parliament shall have such power as regards such States. It shall also be
open to any other state to adopt such Union legislation in relation to
itself by a resolution passed in that behalf in the legislature of the State,
this is an extension of the jurisdiction of the Union Parliament by
consent of the State Legislature (Art 252).
 Thus, though Parliament has no competence to impose an estate
duty with respect to agricultural lands, Parliament has, in the Estate
Duty Act, 195, included the agricultural lands situated in certain States,
by virtue of resolution passed by the Legislatures of such States, under
Art 252, to confer such power upon Parliament.

Thirdly, in the matter of distribution of the taxing power, the more

important resources having been allocated to the Union the State has to
largely depend upon financial assistance from the Union (f.n…….-State of
W.B v, Union of India, air 1963 Sc 1241) and there is an elaborate
system for the making of grants and the distribution of a share of the
proceeds of some taxes by the Union to the States. Even the borrowing
power of the States has been subject to the consent of the Union in
certain cases (Art 293(3)).

(E) Deviation from normal federal ideas

(a)Again, though the Indian Constitution presents a federal system

for normal times, it has a unique achievement of imparting to that
federal system the strength of a unitary system, by enabling the federal
Government to convert itself into a unitary one, in emergencies. One of
the basic principles of federalism, as it is understood in the United States
of Australia(f.n……- A.G. for commonwealth v. Colonial sugar refining
Co., (1914) AC 237), is that the division of powers made by the original
compact as embodied in the Constitution should not be allowed to be
superseded at the mere will of one of the contracting parties. No doubt
the ambit of the federal powers is virtually enlarged by judicial
interpretation; but the fact remains that it is not possible for the national
Government neither to transfer to itself any of the powers belonging to
the States, by unilateral action nor to suspend the working of the State
Governments.

But this will be possible under the Constitution of India, and in

respect, our Constitution even goes beyond the Canadian. We have
already seen that it will be open to the Union Government to supersede a
State Government which refuses to carry out its directions as are
authorized by the Constitution (Art 365). While in normal times the
power to give direction is confined to some specific matters (Arts 256-7),
when a Proclamation of Emergency is made by the President (Art 352)
the power of Union executive to give direction to the State executive will
extend to any matter (notwithstanding any other provision in the
Constitution) (Art 353(a)); and the legislative power of the Union
Parliament will also automatically extend to matters in State List (Art.
250(1)).

(b)The constitution also envisages a financial emergency which is

stated to be “a situation whereby the financial stability or credit of India
or any part of the territory thereof is threatened.” The power to make a
declaration that such an emergency exists is vested in the President. On
the declaration being made the executive authority of the Union becomes
enlarged so as to enable the Union to give directions to any State to
observe such canons of financial property as may be specified in the
directions and such other direction as the President may deem necessary
for the purpose (Art. 360).(f.n…..- power not used upto 1990)

(c)As has been already seen, even apart from emergencies, the
Indian Constitution (Art 249) empowers the Union Parliament to assume
legislative powers (though temporarily) over any subject included in the
exclusive State List by a simple resolution of 2/3 of the members present
and voting in the Council of States (i.e., the upper chamber of Parliament
itself) that such legislation is necessary in the ‘national interest’. It is
true, the Council of States contains representatives of the States, but
owing to inequality of State representation, it is practically the majority
in one of the Houses of the national legislature who would be competent
to override the normal distribution of powers as laid down by the
Constitution.

Of course, under the Canadian Constitution, the Judiciary has

helped the Dominion Parliament to legislate on provincial matters when
they assume a national importance owing to emergency or similar
circumstances having a nationwide repercussion;

“ some matters, in their origin local and provincial, might attain

such dimension as to affect the body politic of the Dominion and to
justify the Canadian parliament in passing laws for their regulation or
abolition in the interest of the dominion………….”(f.n….- A.G. for Ontario
v. A.G. for Canada,(1896) AC 332 (361). See also A.G. for Ontario v.
Canada Temp. Federation, (1946)50CWN 534(538)(PC))(f.n….-U.S v. S.E.
Underwriters Association (1944)322 US 533)

But our Constitution goes further and empowers the Federal

Legislature itself to directly take u a State matter upon its own
determination that such assumption of State power is ‘necessary or
expedient in the national interest’. The Judiciary has no say to as to the
existence of national interest in such a case.

(d)More unique is the power of the Union to assume to itself the

executive and legislative powers of the State whenever the President is
satisfied from the report of the Governor of the State (who is appointed
by the President, as already noticed) that the Government of the State
cannot be carried on according to the provisions of the Constitution (Art
356). It has no connection with the existence of any ‘emergency’. It has
already been pointed out that this extreme penalty may be imposed on
the State if it fails to carry out any direction given by the Union. (Art
365).

Such a form of unilateral action to subvert the federal system has

no precedent under any federal Constitution. From the federal
standpoint, this is also anomalous in as much as the Constitution-
makers did not consider it necessary to provide for any remedy whatever
for a similar breakdown of a constitutional machinery at the Centre.
Again, the power to suspend the constitutional machinery may be
exercised by the President, not only on the report of the Governor of the
State concerned but also suo motu, whenever he is satisfied that a
situation calling for the exercise of this power has arisen. It is thus a
coercive power available to the Union against the units of the
federation.(f.n….- Power used 81 times in 40 years)

Though there is a division of power between the Union and the

States, there are provisions for control by the Union both over the
administration and legislation of the States. Legislation by a State shall
be subject to disallowance by the President, when reserved by the
Governor for the consideration of the President (Art 201). Again, the
Governor of a state shall be appointed by the President of the Union and
shall hold office ‘during the pleasure’ of the President (Arts. 155-6). Both
these ideas are repugnant to the Constitution of the United States of or
Australia, but exists under the Canadian Constitution.