Federalism in India

K.C Wheare who is known as the Father of contemporary federal theories, defined federalism or federal government, as “the method of dividing power so that general and regional governments are each within a sphere co-ordinate and independent“.[1] The term “federalism” is coined from the word ‘foedus’ which means a pact or covenant that creates a new effective political and constitutional design while no abolishing of the original constituent units. Forsyth Murray describes this as “State of States”. In federalism, there is dual polity, comprising two levels of government-a central government and state governments. Thus, Federalism can be summed up as a division of powers and authorities between and among the central government and the state governments. The constitution of a country can be unitary, in which the powers of the government are centralized and federal in which there is a division of powers between the centre and the states and if a constitution takes both the features then the only alternative is to analyse those features and ascertain whether it is federal or unitary and it can have subsidiary variations. According to prof. W.T. Wagner the question that whether a state is federal or unitary depends upon how many federal features it possesses.[2] Federalism can also be said to be the process of combining different sets of territorial communities into a common interest, policy ,and action. Federalism in terms of restraint on the political power is said, “The juxtaposition and counterbalance of two territorially sets of state sovereignties. The existence of inter-federal barriers restricts the power of the central state toward the member state and vice versa”.[3]

The oldest federal constitution of the world is the model of the United States, 1787 which established a nomenclature of “federation”. It establishes a dual polity or dual form of Government. Under US federation there is only one list which mentions the powers of the central government and the rest are left for the state government. The main problem is that constitution of US didn’t give an exact definition to the federation but if we compare and strict historical standards of the United States are applied to all the rest of constitutions of the world which have some federal features few will stand the test of federalism for example Switzerland and Australia.

Prof. Ivo D. Duchacek who is a Professor of Political Science gave ten yardsticks to determine whether a nation is federal or not. According to him if a nation had these features then it can be considered as a Federal country.

1. A country is said to be federal when the major issues like foreign relation lie in the hands of central government and state government is given no authority over it. For example, East Africa failed to combine Uganda into one federation because the leaders of Uganda claimed to have their own foreign policy.
2. No state can withdraw from the membership of a federal union.
3. In a federal system, there is an independent sphere of central authority.
4. Amendment of the constitution is the most well-founded yardstick for determining the federalism.
5. States have an indestructible identity and autonomy.
6. Residuary powers vests with the Union government.
7. Next yardstick for determining federalism in the state is checking whether a state has bicameralism and equal representation of unequal states
8. Supreme Court acts as the apex body.
9. Under a federal system, there is a clear division of powers between the center and the states which every definition of federalism talks about.
10. Diplomacy and defense are in the hands of the union government.

India adopted the concept of federalism from Canada. The Indian federation resembles Canadian federation because in Canada its provinces have no separate or independent existence apart from the colonial government of Canada, and the Union was not formed by any agreement between them, but it was imposed by a British Statue and divided them into the Dominion and the Provinces. The roots of the federal system in India lies in the Simon report of May 1930.[4] It was regarded as a classic state document. It accepted the idea of Federalism and sought to remain direct contact between the British crown and the Indian states.

Then came Government of India act, 1935 which was piloted in the House of Commons by Sir Samuel Hoare in February 1935. This act for the first time introduced the federal concept and used the expression ‘Federation of India’. The act established a Federation of India made up of British Indian provinces and Indian states which might accede to be united.[5] This act is significant because it provided a system under which state government got a political experience and it set the major outlines of the federal system of government. By the act of 1935 the federation system was set up in India and under this system, the Provinces derived their authority directly from the crown and exercised their powers within a specified sphere completely free from the control of the centre. Before The Government of India Act, 1935 India had a unitary constitution. The princely states and the other states were merely the agents of the Central government who derived powers through delegation.

The Supreme Court observed that India has adopted for itself a loose federal structure as it is an indestructible union of destructible units.[6] This means that federal government can reshape the boundaries of a state which is given under the State Reorganisation Act, 1956. Under article 4(2) the parliament has the power to reorganize the states in India and the consent of state legislature is not compulsory for such laws. But if we look at American Federation which is described by its supreme court as “an indestructible Union composed of indestructible states.” This means that the union cannot be destroyed by any state seceding from the union and it is not possible for the federal government to redraw the map of USA. This same principle is applied in Australia.

Under the said act the Centre was to have power to pass laws on fifty-nine classes of subjects as set forth in the Federal List including defence, external affairs, currency, postal and telegraph, immigration, railways, ports, fishing, air movement, fire-arms, incorporation, industrial development, insurance, banking, police, customs, weights and measures, taxes on non-agricultural income, and on other taxes and duties.[7] Provincial governments had authority to legislate upon fifty- four classes of subjects as set forth in the Provincial List, and including law and order, local courts and local police, provincial government, public health, education, transportation, agriculture, water, forests, mines, provincial trade and commerce, hotels, local industrial development, liquor, relief, arts, charity, theatre, gambling, and certain tolls, taxes and duties.[8] Both union and state governments were permitted to pass laws upon thirty-six classes of subjects set forth in the Concurrent List including criminal law, civil procedure, evidence, marriage, divorce, wills inheritance, bankruptcy, arbitration, judicial administration, torts, incompetence, drugs and poisons, mechanical vehicles, boilers, professions, newspapers and magazines, labour relations, electricity, internal travel, cinema films, and preventive detention.[9]This act was a scheme for a federated India of autonomous provinces and princely states, under the British rule. This act created a controversy because this gave Indian National Congress, to establish their authority to speak as a truly representative Indian political force. After Indian Independence Act, 1947 this remained influential as the state adopted its own version of federal framework. One that continued the division of power between central and provincial governments and secondly residuary powers for provincial governors and the federal centre itself. [10]

Article 1 of the constitution of India says that “India that is Bharat shall be a Union of States.” Schedule 1 of the Indian constitution gives us the names of the states and the union territories which divide it in four parts – Part A which includes the nine provinces which were under British India, part B includes princely states, part C includes centrally administered five states, and part D includes Andaman and Nicobar islands. The old Indian States that is stated in part B of the first schedule were with minor exceptions placed under the same political system as the old provinces that are stated in part A. Later both the units that is state A and State B were combined making it one category of states by the constitution (7^th amendment)Act, 1956. According to Dr. Ambedkar the term “union” was used in the constitution of two reasons first one was that the Indian Federation is not the result of an agreement by the units and secondly none of these units had no freedom to secede from it.[11] He said “I think it is agreed that our constitution notwithstanding the many provisions which are contained in it whereby the centre has been given powers to override the provinces(states) nonetheless, is a Federal Constitution.”[12] The word ‘union’ is also used in the constitution of the USA, British North America Act, the Union of South Africa Act and U.S.S.R.

If we see from the eyes of DD BASU, the constitutional system in India is federal which of Couse has some unitary features. To decide whether a constitutional system is federal there are certain features to which there is common agreement amongst political scientists. These features are as follows:-

1. Dual Government – In a Unitary state, there is only one government that is the central government. For example in UK, supreme political power is held by the parliament. but in a federal state, there are two government namely the central government and the state government for example Germany with its 16 states.  In a unitary state, the state can create local sub-divisions which have powers as delegated by the central government which can be revoked anytime at the will of centre. A federal state is the fusion of several components states which have common interests, in which each component state enjoys autonomy in regards to other matters. Both central and state goverments derive their authority from the Constitution of India.
2. Distribution of powers – This is the main feature which actually describes what federalism actually is, the powers are divided in central and state governments and it is not compulsory that the method of distribution is same in all countries. For example in USA, Argentina, Australia, Germany, Mexico, Russia, and Switzerland residual powers are given to the states but in Canada and India the residual powers are given to the central government under article 248 of the Indian constitution. It means the distribution of the powers of the state among a number of co-ordinate bodies each originating in and controlled by the constitution.[13]

Supremacy of Constitution – In a federal system the legal supremacy of the constitution is essential for the existence of the federal system.  Legislative, executive or judiciary whether it is of central government or state government it derives its authority from the constitution.

1. A Written constitution– A federal constitution should also be a written constitution. It would be difficult to maintain the supremacy of the constitution unless it is written.
2. Authority of courts- The Constitution of India is supreme and if the state government does any act to violate any provisions of the constitution, the courts of laws are there to ensure that dignity of the constitution is upheld at all costs. There is a division of administrative and legislative powers between the union and the state and the Supreme Court serves as the head and sees if there is any violation as limited by the constitution. The state and the union can bring action against each other, and a person can also bring an action against union or state government before the original jurisdiction of the Supreme Court under Art. 131.[14]
3. Rigidity- The constitution should be rigid because in a rigid constitution the procedure of amendment is very difficult and complicated.

If we see the position of states in the Federation there are certain contradictions which can be laid down first one, if we see the American federation in the matter of amendment of the constitution, the part assigned to the state is minor, as compared to the union. But in India, except few specified matters affecting the federal structure, the states need not to be consulted in the matter of amendment. Second, in India the union exercise control over the administration and legislation of states. Under article 201 of the Constitution of India, legislation by a state shall be a subject to disallowance by the president and under Article 155-156 the governor of a state shall be appointed by the president of the union and shall hold office during the pleasure of the president. These ideas are repugnant to the constitution of America and Australia. Thirdly, in America a citizen has dual citizenship that is he has the citizenship of the country in which he resides and of course of the US also. But under the Indian Constitution, there is no concept like dual citizenship – a citizen is only given citizenship of India under article 5.

According to K.C. Wheare the Indian Constitution, can be described as “a system of government which is Quasi Federal… a unitary state with subsidiary federal state with subsidiary unitary features.” Prof. Wheare[15] observes “the federal principles is the method of dividing powers so that the general and regional government are each within a sphere are co-ordinate and independent. Both the federal and the regional governments are co-ordinating and independent in their spheres and not subordinate to one another.”

There are certain features in our constitution which makes our constitution federal. These are

The governor of a state is appointed by the president under Article 155 and 156.

Under Art. 249 Parliament is empowered to make laws with respect to every matter enumerated in the state list if the Rajya Sabha passes a resolution by 2/3 majority that it is necessary for the national interest.

Article 246 read with Schedule 7 of the Indian constitution gives authority only to the central government over the matters of defence and diplomacy. Schedule VII which gives the union list which includes the subject matter in which the state government has no right to interfere.

1. In India the union government is independent of the constituent units and can levy direct taxes and enforce federal laws. Schedule VII, Article 268 to 281 gives the tax sharing between the central and state government.
2. In India the power of amendment is vested with the union and there is no ratification required from the states.[16] But under article 368(a) to (e) gives certain types of amendments where the ratification is required by half of the states.
3. Under Art. 352, 356 and 360 which are emergency provisions, the parliament is empowered to make laws with respect to any matter enumerated in the state list.

The federal scheme which is introduced in our constitution is that it introduces a system which works as federal system but there are certain provisions which convert it into Quasi Federal system. If we look at the constitution of US, Switzerland and Australia these countries are truly federal. Constitution of India is not truly federal because of certain factors including economical, geographical, historical and political factors. It is true that India is Federal because in the actual practice the leaning is towards centralisation of national interest and America is more Federal in the outline of the constitution. In practice there is not much difference between the two.[17] A series of developments such as the S.R. Bommai case[18] verdict (1994) making abuse of Article 356, successive Finance Commission reports on resource transfer, end of licence raj, decline of discretionary public sector investments, rise of regional parties and abolition of Planning Commission—helped create a more balanced federal India.

Indian constitution has strong bias towards the centre; a state cannot make any law without the permission of the centre. But at the same time in a truly federal nation all states are given equal representation in the upper house which doesn’t exist in India and also a citizen is given dual citizenship, but in India a citizen is given single citizenship only. In the words of DD BASU it can be concluded that the constitution of India is neither purely federal nor purely unitary but it is a combination of both.

References

[1] Wheare, K.C., 1946. Federal government/KC Wheare. London; New York: H. Milford; Oxford University Press, 1946.

[2] Prof. W.T. Wagner, Federal States and their Judiciary (moulton and co., 1969),p. 25

[3] Karl Loewenstein: Political Power and the Governmental Process. The University of Chicago Press, London. P.124.

[4]  See Menon, V. P., The Story of the Integration of the Indian States, Orient Longmans Ltd., Calcutta, 1956, chapter 1.

[5] History Discussion – Discuss Anything About History. (2018). Main Provisions of the Indian Act of 1935 and Its Achievements. [online] Available at: http://www.historydiscussion.net/articles/main-provisions-of-the-indian-act-of-1935-and-its-achievements/260

[6] Raja Ram Pal vs Hon’ble Speaker,Lok Sabha, 2007 3 SCC 184

[7] Government of India Act of 1935, Section 100, List I, Seventh Schedule.

[8] Government of India Act of 1935, Section 100, List II, Seventh Schedule.

[9] Government of India Act of 1935, Section 100, List III, Seventh Schedule.

[10] Muldoon, A., 2016. Empire, politics and the creation of the 1935 India Act: last act of the raj. Routledge.

[11] Draft Constitution, 21-2-1948,p.iv

[12] Constituent Assembly Debate,vol.4, p. 133, see also constituent Assembly Debate, vol. 5, pp. 33-36

[13] A.V. Dicey- The Law of the Constitution, p. 157 (10^th ed.).

[14] State of West Bengal vs Union of India

[15] K.C. Wheare- Federal Government, p. 27; Jennings- some characteristics of the Indian constitution, p. 1.

[16] Article 368 of the Indian constituion

[17] V.G. Ramchandran- 1958 (SCJ), p. 79.

[18] 1994 SCC (3)