In this article, Pragya Bansal discusses federalism in India.

Introduction

Federalism in India is a historical advancement. The Federal configuration under the present constitution and its tangible operations can be grasped only on the broad canvas of its long expedition. This essay showcases Federalism in India in a twofold modus: The history of Federalism in India and the Federal Scheme under the present-day Constitution of India. The term “federal” is derived from the Latin foedus, which means, “covenant”. This embodies ideas of promise, obligation, and undertaking; and consequently, the federal idea draws on collaboration, reciprocity, and mutuality. Federalism is a method of segregating powers so that the central and local governments are each within a domain, harmonizing and autonomous. To be lucid, federalism postulates a constitutional apparatus for bringing unity in diversity by toning the divergent forces of centripetal and centrifugal trends in the country for the attainment of conjoint national targets.

The Emergence of Federalism and its Evolution

The idea of federalism was initially a religious one and it was from this divine perception that the up-to-the-minute political doctrine of federalism materialized.[1] The Bible is regarded as the first book to discuss the problems of federal polity. Ancient Israel offers the first example of a union of constituent politics grounded on a sense of shared religion nationality.

In India, Between 321 and 185 B.C. in Magadha, the Mauryans for the first time assimilated a number of kingdoms and republics[2] which might be the first sub-continental state in Indian history India.[3] And the Mughals, beginning with Sher Shah’s land revenue system and taking shape with Akbar’s division of his empire into 12 Subahs or Provinces provide excellent examples of a federal government.[4]

The turning junction in India’s federal scheme came when it was taken over by the British forces. But where did the idea come from?

Postmodern Philosophy in Different Nations: Meaning, Definition, and Features of Federalism

The classic definition of federalism is that offered by K.C. Wheare, who described the federal principle as “the method of dividing powers so that the general and regional governments are each within a sphere coordinate and independent.”[5] A similar definition of federalism was offered by A.V. Dicey, who identified the three leading characteristics of a “completely developed federalism” as including the distribution of powers among governmental bodies (each with limited and coordinate powers), along with the supremacy of the constitution and the authority of the courts as the interpreters of the constitution.[6]

In the modern period, the Constitution of the United States of America, of 1787, is treated as the first experiment in establishing a federal system of government. Subsequently, federalism as a mode of political organization was embodied in the Constitutions of Switzerland, the Dominion of Canada and the Commonwealth of Australia and India.

A vital feature is the division of power between the central government and the constituent units under a constitutional scheme that cannot be changed legally by an ordinary method of central legislation. It is also essential that the arrangement assures the ability of the central government to carry out its purposes within the scope of its authority over the whole area. Hence in a federation, we find:

• Two sets of government constitutionally coordinate
• Division of powers between center and units.
• A federal court as a guardian of the constitution; and
• Supremacy of the constitution which is rigid.

India: A Brief History of Foundation of today’s Federalism

The genesis of the present federal system in India lies in the Simon Report of May 1930 which supported the idea of a federal government in India. This support for the federal form of government for the India of the future was further affirmed in the in the First Round Table Conference of 1930.[7] Mr. Ramsay Mac Donald, the then Prime Minister of Great Britain, speaking at the final plenary session of that Second Round Table Conference said[8]:

“There is still difference of opinion, for instance as to the composition and powers of the Federal Legislature, and I regret that owing to the absence of a settlement of the key questions of how to safeguard the Minorities under a responsible Central Government, the Conference has been unable to discuss effectively the nature of the Federal Executive and its relationship with the Legislature”.

After the Third Round Table also flopped significantly, the British Government issued a White Paper in March 1933, which proposed a new Indian Constitution with an accountable government in the provinces and the principle of dyarchy at the Centre. As a result of the publication of the White Paper, a Joint Select Committee of both Houses of Parliament was appointed by His Majesty’s Government in April 1933 to evaluate and survey the proposals of the White Papers. These proposals were enacted into law and received the assent of the British Crown and became ultimately the basis for the Government of India Act of 1935.

The significance of the Act of 1935 lies in the fact that the provinces were endowed with a legal personality under a national scheme, and that the character of the national scheme was ultimately a federal system. This meant the abolition of the principle of dyarchy at the provincial level and its retention at the Centre.

But the federal construction that India follows today is poles apart from what the British came to us with. The biggest hint of federalism in India lies in the history of its foundation in 1947 when after the Partition of Pakistan from the Indian subcontinent all the provinces, presidencies, and princely states were united under an instrument of accession that signifies that all these previously sovereign or reliant states came together to be called one nation-state. The development and the journey of India as a federal country can be broadly understood by dividing it into two parts: The constitutional/legal provisions and the face of federalist India brought in by the Judiciary.

The Constitutional Character of Federalism in India: Two-way Analysis

The constitution of India is unique with respect to its extreme detail and substance. The uniqueness of the Indian constitution is also in the fact that although it is federal in character, it declares India to be a union of states.[9]

The constitution provides for a single citizenship like the United Kingdom and unlike the United States America that provides for dual citizenship. Single citizenship gives the constitution a unitary facet where all citizens are united under one identity as an “Indian”.

The constitution of India establishes a dual polity with the jurisdiction of making laws on different subject matters is divided between union and the state governments.[10] The distinguishing feature here is that the residual powers lie in the hands of the central government.[11] This attribute which is different than other countries takes makes the Indian federalism a bit intricate to fathom.

Another feature that marks India to be a federal country in nature is the written constitution. Indian constitution is the lengthiest and the bulkiest constitution in the world which clearly defines everything from rights to remedies. This strengthens the federal nature of the country and assures security to the state and citizens.

The powers in the country are split amongst the three pillars of democracy: the Legislature, the Executive, and the Judiciary. All these three props are complementary and supplementary to each other with an independent judiciary which is the upholder of the supremacy of the constitution and get to the bottom of disagreements flanked by center and states or between 2 states. This guarantees a stringent remedial system. But is that sufficient? The judiciary although independent is an integrated institution and thus gives the essence of unitary government to the constitution. Other terms of the same constitution provide for the president to appoint the constitutional heads of all states i.e. governors[12] and they hold their office to the desire of the president. Doesn’t that mean that the heads of the state are appointed to the pleasure of the central government? One may wonder.

The constitution of India is both stern and elastic at the same time. The rigidity of the constitution is an indispensable feature of federalism. But the same rigid constitution has hit a century of amendments in less than 75 years of Independence.

The Constitution provides for a bicameral legislature consisting of an Upper House (Rajya Sabha) and a Lower House (Lok Sabha). The Rajya Sabha is the stand-in for the states of Indian Federation, while the Lok Sabha represents the people of India as a whole. The Rajya Sabha (even though a less powerful chamber) is required to conserve the federal stability by protecting the interests of the states against the uncalled-for interference of the Centre.

Other than the aforesaid provisions the following provisions of the constitution clash with the federal nature of it:

• Union has the power to make new states or alter the boundaries of existing states.[13]
• Union has the power to make laws on state matters and if both state and union adjudicate on a certain matter, the latter will prevail.[14]
• The emergency articles of the constitution when conjured up, give a unitary character.[15]

Judicial Character of Federalism in India

The Indian judiciary has time and again heard a number of cases involving the issue of the federal character of the Indian constitution. To understand what it had to say I have collected a few cases in a chronological order that will help in understanding the judiciary’s take on this.

State of West Bengal v. Union of India[16]:

“The Constitution of India is not truly Federal in character. The  basis of the distribution of powers between the  Union and States is that only those powers which are  concerned with the  regulation of local problems are vested in the  States and  the residue, especially those which tend to maintain the economic industrial and commercial unity of the country are left  to  the  Union.” 

State of Rajasthan v. Union of India[17]

“In a sense, the Indian Union is federal. But the extent of federalism in it is largely watered-down by the needs of progress and development of the country which has to be nationally integrated, politically and economically co-ordinated and socially, intellectually and spiritually uplifted. With such a system, the States cannot stand in the way of legitimate and comprehensively planned development of the country in the manner directed by the Central Government

State of Karnataka v. Union of India[18]

“The Indian Constitution is not federal in character but has been characterized as quasi-federal in nature. Even though the executive and legislative functions of the Centre and States have been defined and distributed, there runs through it all a thread or rein in the hands of the Centre in both the fields. “

Kesavananda Bharati v. State of Kerala[19]

Some of the judges, in this case, held federalism to be a part of the basic structure of the constitution which means it can’t be tampered with.

S.R. Bommai v. Union of India[20]

In this case, 4 different opinions were given by judges

1. Justice Ahmadi: Because of no mention of the words like ‘federal’ he declared it to be a quasi-federal constitution.

2. Justice Sawant & Kuldip Singh: Federalism is an essential feature of the constitution.

3. Justice Ramaswamy: Declared India to be an “Organic Federation” designed to suit the needs of the parliament.

4. Justice Jeevan Reddy and Justice Agarwal: Federalism in the constitution has a different meaning in accordance with the context.          This case posed restrictions on the arbitrary use of article 356.

Challenges to Federal Character of India: 3 Recent Incidents

India’s federal experiment has undergone, over the past sixty years, many trials and tribulations.

• Formation of Telangana under Article 3 of the constitution raised a lot of questions against the federal nature of the polity.
• 100^th amendment of the constitution where land was transferred to Bangladesh has posed as a serious threat to federalism in India.
• Introduction of Goods & Services Tax is a moot point. Whereas the supporters of GST argue that states too should levy taxes under it, the naysayers argue on the autonomy of states.

Merits and Demerits of Federalism in India

Federalism in a diverse country like India has both merits and its consequences. Division of power helps in the easy governance of the 7^th largest country but then a country with the second largest population needs a united government to govern people of almost every possible religion that exists. The integrated and independent judiciary is definitely a merit for the nation as it helps in proper remedy for rights. On the other hand, a written constitution with the kind of flexibility and rigidity possessed by the Indian constitution is a boon when it comes to the codification of rights but the same rigidity can stand as a bane if amendments need to be made. However, amendments to the Indian constitution are not that tough after all.[21]

Present and Future of Federalism in India: Conclusion

The motto of “Unity in diversity” has always been very important to India and a federal government helps to establish a country with mutual tolerance and existence. However, for a country like India which is divided on the linguistic and communal basis, a pure federal structure would lead to disruption and division of states. With too much power given to a state, it will want to shift away from the union and establish its own government. I believe that is the reason why Jammu & Kashmir’s special powers are in question in the public time and again.[22]

To overcome all this and the aforementioned demerits we need to strike a balance between both unitary and federal features of the country. States should be autonomous in their own sphere but they can’t be wholly independent to avoid a state of tyranny in the nation. People of India need protection and security from such things and that is what the constitution of India with its special provisions provides. It establishes a state which is both a union and a federation at the same time and thus gives India a structure of a quasi-federal government which has united the diversity of India for past 71 years and will do the same for the centuries to come.

 

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[1] Daniel J Elazar, Religious Diversity and Federalism, 53 ISSJ 2001.

[2] Romila Thapar, A History of India 82 (Penguin: Harmondsworth, 1966)

[3] 2 Percival Spear, A History of India 40-52 (Penguin Books: Baltimore, Maryland, 1965),

[4] 4 Wolseley Haig, The Cambridge History of India (S. Chand and Company Ltd: New Delhi, 1979).

[5] K.C. Wheare, Federal Government, 11(London: Oxford University Press, 4th ed.  1963).

[6] A.V. Dicey, Introduction to the Study of the Law of the Constitution, 140(London: Macmillan, 7th ed.  1908).

[7] 2 Sethi, R. R. & Mahajan, V. D., Constitutional History of India, 136 (S. Chand & Co., Delhi 1956).

[8] 3 Final Plenary Session, Second Round Table Conference, (145 1st December 1931).

[9] INDIA CONST. art. 1.

[10] INDIA CONST. Schd. 7.

[11] INDIA CONST. art. 248.

[12] INDIA CONST. art. 155 & 156.

[13] INDIA CONST. art. 2 & 3.

[14] INDIA CONST. art. 249, 250, 251 & 253.

[15] INDIA CONST. art. 352, 356, 360.

[16] State of West Bengal v. Union of India, 1963 AIR 1241.

[17] State of Rajasthan v. Union of India, 1977 AIR 1361

[18] State of Karnataka v. Union of India, 1978 AIR 68.

[19] Kesvananda Bharti v. State of Kerela, (1973) 4 SCC 225.

[20] S.R. Bommai v. Union of India, 1994 AIR 1918, 1994 SCC (3).

[21] INDIA CONST.  art. 3.

[22] INDIA CONST. art. 370.