This article is written by S A Rishikesh, from Institute of Legal Studies, Shri Ramswaroop Memorial University, Lucknow. This article focuses on the ways governments use to influence the judicial proceedings in a federal setup.
Table of Contents
Introduction
The bedrock of democracy is the rule of law which means an independent judiciary; judges who can make decisions and conduct proceedings of the court independent of political winds that are blowing. In a federal set up the importance of the judiciary increases even more because it is the final interpreter of the supreme law of the land that is the Constitution. In this article, we would try to understand the federal form of government along with its features, advantages and disadvantages. Next, we will look at some of the ways the government uses to circumvent the standard legal proceeding with reference to India and its possible disadvantages.
Federal government : going back to the political science books
Political scientists divide the governments of the world into unitary and federal, based on the division of powers between the national government and the regional government, i.e., either the national government is more powerful, or the power is equally divided. A unitary government is one where all the power is vested in the national government. Regional government, even if it exists, gets its powers from the national government. Britain, France, Japan, Norway, Sweden, Spain are examples of the Unitary form of government.
A federal government is one in which the power is divided between the national government and the regional government by the Constitution of the state itself, and they both have to act within their own jurisdiction independently. In the words of Prof. K.C. Wheare, federal principles “is meant the method of dividing powers, so that the general and regional governments are each within a sphere coordinate and independent. Both the federal and the regional governments are coordinate and independent in their spheres and not subordinate to each other.”
The United States Of America’s Constitution is the best example of the federal Constitution, other examples include Australia, Canada, Switzerland, Brazil, Argentina and so on. The national government in the federal setup is known as the Central or the Union government while the regional government is known by the name of the state or the provincial government.
The major features associated with the federal government
Distribution of powers
The Constitution establishes two governments, the Union government Centre and the state governments, at the borderline. The distribution of power is the most important feature of the federal form of government. Both the Central and State governments derive their powers from the Constitution. This division is based on the matters of national importance where a uniform policy is desirable for the betterment of the whole like defence, foreign affairs, currency, etc. and the matters of regional or of local importance like public order, health and so on.
Written Constitution
The foundation of a federal state is through treaties or agreements. The base of an agreement is understanding and convention, and to avoid the misunderstandings and disagreements between the state and the centre and maintain the supremacy of the Constitution, a written Constitution was not an option but a necessity.
Supremacy of the Constitution
The existence of a federal state depends on its Constitution. The Constitution is the supreme law of the land. Every power, whether executive, legislative or judicial, of centre or of the state is derived and controlled by the Constitution. The supreme Constitution and a written Constitution are the essential institutions of a federal government. Prof. K.C. Wheare explains it as “the supreme Constitution is necessary for the government to be federal, and the written Constitution is important if the government has to work for real.”
Rigid Constitution
Rigidity is the natural characteristic of a written Constitution. A supreme Constitution must be rigid. The process of making amendments is very complicated and difficult in a rigid Constitution. The main objective behind this is not that the Constitution becomes legally unalterable, but it means that amending the Constitution should not remain solely with the central or the state government. Rigidity is important to maintain the supremacy of the Constitution.
Bicameralism
Bicameralism is an important feature of the Federal state as it is in the upper house, all the units are given equal representation. One house of the legislature represents the people of the country (House of Representatives in the USA), known as the lower house, and the other house represents the states (Senate in the USA), known as the upper house. It is to maintain an equilibrium and protect states from undue interference from the central government.
Independent judiciary
The very basis of the existence of a federal state is the division of power between the Central and the state government through the framework of the Constitution. Therefore it becomes necessary to maintain this division of power and to settle disputes of the centre and state governments. This can only be done by an independent and impartial authority. In a federal structure, the judiciary is the final interpreter of the Constitution.
Dual citizenship
Another interesting feature of a federal state is dual citizenship which means a person is not only the citizen of the country but also of that particular state where he belongs to.
Advantages of the federal government
The advantages and disadvantages have been a matter of debate since the formation of a unitary government or the republic. Academicians argue that federalism has the following merits:
Prevents the rise of deposition
There are hard and fast rules which clearly define the area of jurisdiction of the central and the state government within which they have to function. It is almost impossible for the central government to function in an arbitrary manner; it has to follow the constitutional provisions at all times, therefore, respecting the autonomy of state governments.
Increases efficiency
Needless to say, two sets of government work at the same time, increasing administrative efficiency to a great extent. Both coordinate and cooperate with each other hence dividing the burden of each other. As a result, matters of national importance and local importance are adequately taken care of.
Support local needs
One of the biggest merits of the federal form of government is it supports local needs. It is not possible for a central government to take care of the needs of the people throughout the entire state on its own, which is why the state governments come in very handy. The state governments have been given the power of policymaking and lawmaking, which are suited to their states. It is not forced upon other states. This ensures the needs of every individual are being taken care of.
Supports big states
As discussed in the above point, the federal government is the best option for big states; where state governments work as support for the central government, responsibilities are shared, and the needs of everyone are met. All the states of a federation are treated as equal units. Weak states are taken care of in this system as it receives equal support from the centre as any other state.
Ensures popular participation
Since there are two sets of governments and therefore, more and more people will be aware and directly participate in the political process.
Democratic in nature
The basis of a federal government is a supreme government and independent Judiciary. From this, we can conclude that it is democratic in nature, where the rights of people are given the highest regard.
Disadvantages of the federal government
Power struggle
The biggest problem when two governments work together arises from a power struggle. Both the governments try to gain more and more power and, in order to do so, cross the lines drawn by the Constitution sometimes. This leads to frequent conflicts between the centre and the state. This sometimes leads to delay in the development and formation of important legislation.
Lack of accountability
The overlapping boundaries of the jurisdiction of centre and state make it almost impossible to blame one for the failure of the policies.
Realizing the federal government’s ability to circumvent standard legal proceedings
There is a process of checks and balances which runs within the federal government between the legislative and judiciary. The judiciary, which is the final interpreter of the Constitution, needs to be independent for a democratic federal setup. Judiciary often comes neck to neck with the federal government, sometimes pushing its own limits, and therefore we see that federal governments have developed ways to circumvent standard legal proceedings.
If we look at the United States of America, the oldest federal state, the appointment of judges is done on the recommendation of the President and is confirmed by the Senate (the upper house), and therefore the allegation of favouritism is always present. Favouritism weakens the institution of the Judiciary.
In India till 1998, the second judge’s case, the executive had the upper hand in the appointment of Judges of High Courts and Supreme Court. A collegium was formed after that for the appointment of judges of the High Courts and the Supreme Court. The Chief Justice of India is the head of the collegium. There is no proper procedure laid down by the Constitution in the appointment of the Chief Justice of India. Article 124(1) says there shall be a Supreme Court consisting of Chief Justice. Subclause 2 of Article 124 mentions that the chief justice shall be appointed by the President. Hence, the person whose mindset goes with that of the executive is favoured in the appointment of the Chief Justice of India.
An example of this has been seen in 1973, when Justice AN Ray was appointed as the Chief Justice of India despite being fourth in seniority after Justices JM Shelat, KL Hegde and AN Grover. The three senior judges were involved in the landmark judgment of the Kesavananda Bharati vs. State of Kerala (1973) case, whose decision went against the government.
A new way to scar the independence of the Judiciary and get decisions in its own favour has come up with post-retirement appointments. This issue became a hot topic of discussion when former Chief Justice of India, Ranjan Gogoi, was nominated as a member of the Rajya Sabha within six months of his retirement. In his tenure as Chief Justice of India, he was involved in prominent cases like the Manohar Lal Sharma vs Narendra Damodardas Modi (2019) (Rafale Deal Case), the M Siddiq (D) Thr Lrs vs Mahant Suresh Das (2019) (Ayodhya Verdict), and the Assam Public Works vs Union Of India (2019) (Assam NRC) case. Ironically the decision of all these important cases was in favour of the ruling government, which raised many questions on the independence of the Judiciary.
The possible disadvantages surrounding the same
The federal government is all about the division of power and the rule of law, which can only be maintained if all the three branches, legislative, executive and judiciary, maintain the concept of check and balance. If the Judiciary as an institution is weakened, it will not be able to protect the Constitution. In the absence of a supreme Constitution, federalism will cease to exist.
Moreover, it is the Judiciary that stands in between the government and the citizens as a shield against the misuse or abuse of the executive powers of the government. If the judiciary is influenced by the executives, the rights of the people will be compromised, and the government will very soon become an autocratic government.
Conclusion
There is a need to address the influence of the executives in the Judiciary. The tussle of power between the wings of government is good for federal democracy; the problem starts when one wing interferes with the other. This interference not only erodes the essence of the division of power but also raises the question of credibility on the entire system.
References
- https://www.jurist.org/commentary/2020/05/arpit-richhariya-indian-judiciary-independence/
- https://www.moneycontrol.com/news/trends/legal-trends/explained-heres-how-the-chief-justice-of-india-is-appointed-6738741.html
- https://www.theleaflet.in/does-the-collegium-system-ensure-independence-of-indian-judiciary/
- https://www.bccourts.ca/documents/Why_is_Judicial_Independence_Important_to_You.pdf
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