In this article Mohd. Hashim Miyan and Sanjoli Verma discusses whether India is a Federal or Quasi-federal country.
Table of Contents
Introduction
Federalism is a dual government system that performs its function independently. Federalism generally is two levels of government. One is the Central Government who perform their functions at the major issues of the country. The other is the local or State Government which deals with day to day activities and functioning of their particular State. Such as we know that we have two levels of law enacted body at the central level Parliament in which the central government enacts the laws for whole the nation and the other is State Legislature in which the particular State Government enacts the laws for the particular state.
The Constitution of India is rigid and at the same time, it is flexible ,which can be amended according to the growing and changing needs of a developing society and country. This is the reason it is called a living document. India’s constitution does not refer to the country as a federation. Article 1 of the Constitution, on the other hand, refers to India as a “Union of States.” This signifies that India is a union made up of many states that are all equally important. The Indian Union is unbreakable. The states are unable to secede from the union under this situation. They do not have the authority to leave the union. The constituent entities, or States, in a real federation, have the ability to leave the union.
India is not a federation in the traditional sense. It combines the characteristics of a federal government with those of a unitary government, which are referred to as non-federal characteristics. As a result, India is classified as a semi-federal state. It is described as a “quasi-federal state” by Prof. K.C Wheare. It is also described as “a federal system with a significant leaning towards the Centre” by the Supreme Court of India. The Indian constitution has elements of both a federal and a unitary constitution. To comprehend the quasi-federal government, we must first grasp the federal and unitary characteristics of the Indian Constitution. Federalism is a tool for articulating and protecting a society’s many traits. It was created to ensure regional autonomy as well as national unity. In multiple societies, it is the result of historical processes. The central government will have more authority if the forces of national unity are particularly strong in such a society.
What is a Quasi-Federal State ?
A quasi-federal government is one in which the division of powers between the federal government and the states is not equal. Because of its strong central apparatus, India is a federation with a unitary bias and is referred to as a quasi-federal state. The Government of India Act, 1935 proposed a federal system for India for the first time, even though the process of decentralisation and devolution of authority had been underway since the Government of India Act, 1919, when the term “federation” was first used in legal terms. In India, the federal system does not exist as a consequence of an agreement or treaty between the many components and states that make up India. With the enactment of the constitution, India’s unitary system of government was transformed into a federal one. The Indian constitution’s creators wanted to create a federal structure in the country because of the country’s diversity and vastness. States’ genuine complaints should be dealt with within the framework of the Federal Constitution to overcome fissiparous tendencies that threaten national unity. With so many models to choose from, the Constituent Assembly correctly chose the Government of India Act, 1935 as the foundation for its new constitution.
Federalism as a concept
Federalism is a complicated governmental process that allows a country to have both a central and state government at the same time. The constitution is the source of authority for both administrations. The powers are divided between the Centre and State governments in a federal constitution, and the Central Government may make laws for the entire country, while the respective state governments may make laws for the entire state, allowing each government to be legally independent within its own sphere. Each government has its own set of powers and exercises them independently of other governments; as a result, neither is submissive to the other, yet both work together. This system is built on a compromise between regional variety and national unity, as well as the necessity for an effective central power and checks and balances on that power.
Why India is a federal country?
The best way to comprehensively understand the federal system is to learn about its features. These qualities consolidated to reflect the genuine quintessence of federalism. Let we know them carefully-
- Bi-Cameral Legislature – The main feature, which is the definition of federalism in which there are at least two levels of governance in the country. There can even be more than two levels of governance but the entire power is not concentrated with one government.
- Single Citizenship – All levels of governance with their different jurisdiction govern the same citizens. This means that to make laws, legislate and implement these laws by each level of government with their definite power.
- Written Constitution – Another essential feature is that the federal system of government is guaranteed by the constitution. It means that the constitution of that country where is the federal system of government listed down all powers and duties in the written form of all levels of government. Without a written constitution there is not a federal system of government. For example, the UK is not a federal country because there is not a written constitution. In the written constitution there is no denying fact that stability maintains in the governance as a whole of the country. In the absence of a written constitution, there is the possibility of conflicts and misunderstandings arises in the Center and the State and would cross the boundary of each other.
- Participation of the Centre and State: As stated above the federalism of a country must be governed by the constitution. It is also important to know that any amendment or changes cannot be made unilaterally in the main parts or essential provisions of the constitution. Such changes or amendments must also be approved by all the levels of government to go through.
- Dual Government: It is also stated that there are two levels of government with separate jurisdictions and separate duties. There may be a possibility to arise a conflict between the two governments. In a federal state, it is the duty of the courts to interfere in such a situation to resolve this conflict and reach a resolution.
- Revenue Sharing: In case of a federal country there should be a system of Revenue-Sharing between the Center and the State like as a system of Power-Sharing between the two levels of government.
Federal sources of the Indian Constitution
Government of India Act, 1935
- The Federal Plan
- Governor’s Office
- Judiciary
- Commissions of Public Service
- Provisions for an emergency
- Administrative information
The Constitution of the United Kingdom
- Legislative government
- Nominal Head President (who will act like the Queen)
- Prime Ministership
- More powerful Lower House
- Citizenship in one country
- Prerogative writs
- Cabinet system
- Privileges of the legislature
- The House of Commons is divided into two chambers.
- Speaker of the Lok Sabha
- Legislative procedure
- Rule of Law
The Constitution of Ireland
- State Policy Directive Principles Concept (Ireland had borrowed it from Spain)
- The President’s nomination of Rajya Sabha members
- Presidential election procedure
The Constitution of the United States of America
- A Constitution in Writing
- President’s impeachment
- Supreme Court
- States’ provision
- Removal of Supreme Court and High Court justices
- President and Vice-Presidential Functions
- Fundamental Rights
- Review by the courts
- The Judiciary’s Independence
- The Constitution’s Preamble
The Constitution of South Africa
- The Constitutional Amendment Procedure
- Members of the Rajya Sabha are elected.
The Constitution of Canada
- A powerful centre in a federation
- The Centre being given residuary powers
- The Central Government appoints state governors.
- The Supreme Court’s Advisory Jurisdiction
The Constitution of France
The Preamble’s principles of republic, liberty, equality, and fraternity.
The Constitution of Australia
1.Concurrent List
2. Trade freedom
3. Commerce and intercourse
4. The Preamble’s wording.
5. The joint sitting of the two Houses of Parliament
Constitution of the Soviet Union (USSR, now Russia)
- Primary responsibilities
- The Preamble’s objective of social, economic, and political justice
- Plans for the next five years
The Constitution of Germany
Suspension of fundamental rights in the event of a national emergency
The Constitution of Japan
Concept of “procedure established by law”.
Examples of Federalism in case of GST and taxes on Alchohol, Petroleum or diesel
What is the Impact of GST on Federalism
All we know that India is a federal nation where both the level of governments have been assigned their powers through proper legislation to impose and collect taxes. As per the division of Powers defined under the constitution of India both the Centre and State government have different responsibilities to perform their power to raise resources which they require.
In India, there is dual GST which is imposed by both the levels of government. Such as for the intra-state trade the GST is levied as CGST (Central Goods and Services Tax) and SGST/UTGST (State Goods and Services Tax/Union Territories Goods and Services Tax). While for the inter-state trade the GST is levied as IGST (Integrated Goods and Services Tax).
There is the principle of dual GST system adopted by the legislation for the constitutional requirement of fiscal federalism.
Our constitution makes a clear demarcation about legislative powers and jurisdictions. It is done through the three lists.
- Union List: This incorporates subjects that convey national significance, similar to defense, finance, railroads, banking and so forth. So such subjects just the Central Government is permitted to make laws.
- State List: Incorporates all issues essential to the working of a specific exchange like transport, Trade, Commerce, farming and so on. The state government is the appropriate authority for making laws regarding these matters.
- Concurrent List: This incorporates matters on which both the Union and the state government can make laws. These are identified with education, forests, trade associations and so forth. It should be noted that Central government is the final authority on any conflicting issue if the two governments are in conflict relating to making laws.
Why India is not a federal country?
A unitary system is administered constitutionally as one single unit, with one constitutionally created legislature. All power invests in top authority. A unitary state is that all the powers governed in one single unit in which the central government is the ultimate authority to enact the laws for the country.
These are some unitary features in the constitution by which we can say that India is a quasi-federal country in nature-
- Strong Centre:- The central government has the unitary authority to the appointment of the Governors for various states. Governor is the representative of the central government and he is also the constitutional head of the state. Constitution provides under article 355 that the central government is the duty-bound to ensure that there is no failure of constitutional machinery in the state and the states are protected from the internal disturbance and external aggression and war. By which to enforce that duty, article 356 provides to the central government to impose Presidential rule and it is the duty of the governor of the concerned state to make a report to the center about the constitutional failure of the machinery of the state for political or any other reasons. Like the President, Governor also enjoys some discretionary powers related to withholding the bill for the consideration of the president. Thus, the power of the central government to appoint governors who would be the head of the particular states is an important unitary feature of the Indian constitution.
- Single Citizenship:- The constitution provides a single and uniform citizenship for the whole of the country. However, in a federal state like the United States of America, there is dual citizenship in which citizen firstly owes the duty to the states and then to the union. But in the case of India, there is single citizenship even though it also a federal country. It prescribed that all the Indian citizens owe allegiance to the Indian Union and not for the state also. Any citizen of the country enjoys the civil and political rights throughout India in all states and union territories irrespective of his birth or residence.
- Integrated Judiciary:- In India, the Supreme Court at apex defined the Unified Judiciary which opposed to the federal system of the country having a dual system of courts. In our unitary judicial system, the Supreme Court occupies the highest place. We know that the decisions and verdicts of the Supreme Courts are binding on an inferior court in India.
- Appointment of the Highest Position Machinery:- All the appointment on the highest positions are made by the Union Government such as the Chief Election Commissioner, the Comptroller, and Auditor General and All India Services such as IAS and IPS have been created which are kept under the control of the Union.
- No Equality of State Representation:- Representation in the legislature in the federal states is on an equal basis, which is also not applicable in case of Indian States. The Representation of the States in Rajya Sabha is not equal basis it depends from state to state and regulated by the center which is basically a unitary feature of the state.
- Parliament’s Authority Over State List:- In general the power to make laws under the state list given to the State Government but in certain cases, the central government has the power to make laws under the state list. If Rajya Sabha passes a resolution under article 249 of the constitution with the 2/3rd majority that the parliament should make law with respect to a particular entry in List II with respect to a particular state. After passing the resolution the parliament makes law and that law remains in force for 1 and ½ years which means that the resolution remains in force for one year and the law also will remain to cease after six months the resolution comes to an end.
- Emergency Provisions:- The provision of the article 356 provides that the proclamation can be made and once such proclamation is made, the state government can be either dismissed or the Assembly can be kept in suspended animation.
Case Laws on the Federalism of the Country
- Kuldip Nair v/s Union of India
Issue- In this case, the issue was that before an amendment in 2003 there was a domicile requirement that was removed in 2003 by which it was argued that the amendment violated the federal character.
Court Held- SC said that a specific sort of federalism or a US kind of model may not be a piece of the fundamental structure of the Indian Constitution. The Indian Federalism is one of a kind in nature and is custom fitted as per the particular needs of the nation. Federalism is a fundamental element of the Constitution of India in which the Union of India is lasting and indestructible.
In view of many historians such as according to KC Wheare, practically the constitution of India is not strictly federal in nature whereas it is the quasi-federal in nature. In the words of D.D. Basu, the constitution of India is a combination of the federal and unitary system it’s neither purely federal nor unitary.
2. State of West Bengal v Union of India
The Supreme court held that decentralization of authority in India was mainly to facilitate smooth governance of a large country and therefore, it contains many centralization features also.
3. S.R. Bommai v Union of India
In this case, Justice Ahmadi opined that the essence of the federal nation is the existence of a division of power between the Union and the States.
4. Sat Pal v State of Punjab and others
In this case, the court held that in the absence of the terms federal or federation and the existence of unitary features single citizenship, a single constitution, integrated Judiciary, strong Centre, etc can help us conclude that the Constitution of India is more Quasi-federal than federal or unitary.
The Chairman of the Drafting Committee, Dr. Ambedkar had therefor appropriately said that “Our Constitution would be both unitary as well as federal as per the prerequisites of time and circumstances”.
How Indian federalism is different from U.S.A & Switzerland ?
Similarly, modern western federal systems such as the United States of America, Switzerland, Canada, and Australia reflect modern situations and compulsions. These federations are the world’s most successful and rich, and they have inspired the formation of new federations.
The US
The US is quite exact and rigorous, including only a few pages, but the Indian Constitution is rather lengthy. Because the United States Constitution is so rigorous, the provisions for altering it are also exceedingly rigid and procedural. Only 33 times has the US Constitution been modified. The Indian Constitution, on the other hand, has been changed 104 times since its inception in 1950. As a result, changing the Indian is simple.
Because the President of the United States is the head of state, his government is known as the Presidential form of government. India, on the other hand, has a Parliamentary system of government, with the Prime Minister and his cabinet wielding actual power and the President only serving as a ceremonial head. The President of the United States is in office for four years, whereas the Prime Minister of India is in office for five years as long as his political party has a majority in the Lok Sabha. While the United States has a bipartisan government, India has a multi-party system with a difficult electoral procedure.
As a developed country, the United States has a sophisticated court system. India’s legal system, on the other hand, is fast evolving. In the United States, a judge is only in office for as long as he is capable of completing his responsibilities. A District judge, on the other hand, serves until the age of 58, a High Court judge until the age of 62, and a Supreme Court Judge till the age of 65, according to the Indian Constitution. US states can have constitutions of their own.State governments can prescribe rules on trade, taxes, healthcare, education, and many other topics inside their state as long as their laws do not violate national legislation. The Supremacy Clause is included in Article VI, paragraph 2 of the United States Constitution. It establishes that the federal constitution and, more broadly, federal law take precedence over state legislation and, indeed, state constitutions. Unlike India, the United States Constitution allows for dual citizenship, meaning that a US citizen can be a citizen of both the United States and another nation.
The Switzerland
In Switzerland the executive powers are vested in the federal council unlike India wherein this power is vested by the President. Unlike India where the President is elected by the electoral college the Switzerland’s federal council is elected by the federal assembly. Party government is absent and states can conclude treaties unlike India. Judiciary does not have power of judicial review unlike India’s supremacy of judiciary and Referendum is also possible.
The Swiss Confederation is made up of 26 cantons. The canyons [federation member states] have a great deal of autonomy. On three levels, there are governments, parliaments, and courts: Federal, cantonal and communal.
The Preamble to the Swiss Constitution states that the Swiss people and Cantons accept the Constitution fully aware of their collective accomplishments and responsibilities to future generations. The Swiss Constitution is a legally binding document. It was developed by a Swiss Parliament committee in 1848 and ratified by the Parliament, the Cantons, and the Swiss people. The new, completely rewritten constitution went into effect on January 1, 2000.
The Swiss Constitution is a strict document and it is supreme in nature. The cantonments also have their own constitutions. The procedure for amending a document is detailed and difficult. A proposal for a comprehensive or partial constitutional reform might come from either the Swiss Federal Parliament or a grassroots campaign backed by 100,000 people. In any event, the proposal becomes a part of the constitution only if it is adopted by a majority of Swiss citizens and a majority of the Cantons in a referendum. The inclusion of a complete bill of rights in the new Swiss Constitution (2000) was a significant move. The Swiss people’s basic, civil, social, and political rights are presently described in Title 2 Chapters 1 and 2 and Articles 7 to 40 of the Constitution.
Switzerland is presently led by a seven-member plural executive, with members chosen by the Swiss Federal Parliament’s two chambers. In Switzerland, all political institutions are democratically elected. People elect their representatives and engage directly in the drafting of laws through referendums and initiatives. In the Cantons, the Constitution also establishes Republicanism. Every Swiss canton has the right to have a constitution as long as it guarantees the republican exercise of political rights. “Every Canton shall adopt a democratic constitution,” says Article 51. In Switzerland, the dual citizenship system is prevalent. Every citizen of a Canton is a Swiss citizen, according to the Constitution. The Swiss Federal Court is the country’s only federal court, and it serves as the country’s Supreme Court in several ways. It does, however, hold a secondary status in the legal system. The Federal Court justices are chosen by the Federal Parliament for a six-year term, yet the practice of re-electing the judges guarantees that the judges have a long tenure. The Swiss Federal Parliament is divided into two chambers. The House of Representatives and the Senate are the two chambers of Congress. The Swiss government is a one-of-a-kind structure that combines elements of both parliamentary and presidential governance.
Switzerland has long been known as the birthplace of direct democracy. Switzerland has operated as a direct democracy since 1848, using modern direct legislative instruments such as referendums and initiatives. The people have the ability to approve or disapprove legislation or constitutional amendments made by their legislature under the Referendum system. Only when referendum measures receive a majority of votes do they become operative.
Conclusion
Finally, on a careful examination of the federal and unitary features of the constitution, this viewpoint isn’t difficult to miss that in each federal feature, there was an extreme centralizing power which is existing. In this way, it would not be wrong to conclude that the Constitution of India is federal in structure and unitary in the soul, for example, it is Quasi-federal in nature. The idea of separation of powers is followed by both the Union and the State, although not in the literal sense. In India, the principle of power distribution is widely followed. As a result, India is a federal country in its own right. It is referred to as a Quasi-Federal Country for ease of reference. Finally, a detailed assessment of the federal and unitary components of the constitution reveals that each federal characteristic contains an excessive centralising authority. In this light, it is reasonable to infer that the Indian Constitution is federal in form but unitary in spirit, and that it is Quasi-federal in character. As a result, it may be inferred that certain aspects of federalism are shared by both India and the United States. India and the United States, on the other hand, vary in numerous ways when it comes to the federal nature of their constitutions. Despite its flaws, both the United States and India’s federalisms are mostly effective.
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