constitution
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This article is written by Nishtha Pandey (batch 2023), student of Dr Ram Manohar Lohiya National Law University, Lucknow. This article seeks to present a holistic viewpoint on the actual Nature of the Constitution of India. The opinions of prominent jurists and case laws are included to present a broad picture.

“It doesn’t really matter whether the Constitution is in consonance with the textbook rules of federalism as long as it serves the purpose” Kuldip Nair v Union of India

Introduction

There is a huge difference of opinion when it comes to the nature of the Indian Constitution. Some jurist like Kenneth C Wheare, said that India is quasi-federal i.e. “similar to a federal system” because it has some features of federal and some of the unitary Constitution. However, according to the makers of the Constitution, it is federal in nature. Even Dr. B. R. Ambedkar defined it as a federal Constitution, although the centre has certain powers to override the provinces.

The question of whether the Indian Constitution could be actually called a federal Constitution could not be answered without looking into the meaning of federalism and the essential features that are evident in a federal state.

Is the Constitution of India Federal?

There are certain features which are essential to be present in the federal Constitution. Some of them are discussed below:

Federal Principle

The basic principle of federalism is the “division of power”. The centre and the state are not subordinate but coordinate with each other. They work independently in their own sphere. In other words, it seeks to bring unity in diversity and the achievement of common national goals. Prevention, as well as the settlement of conflict of the interests of the Centre and the States, is an important part of federalism. This is the reason why the Indian federalism was devised with a strong Centre. The Indian Constitution has adopted federal features, though it is not a complete federal nation.

Essential characteristics of a federal Constitution

There are various characteristics which are quintessential for a Constitution to be termed as a federal Constitution.

Supremacy of law

The Constitution is the supreme law. The term “law” involves rules, regulations, bylaws, notifications, orders, ordinances and even the customs having a force of law. A federal-state derives its existence from the Constitution. Every type of power; be it legislative, administrative or judicial, irrespective of it being at the centre or the state level, is controlled by or is subordinated to the Constitution. Article 13(2) provided that the State shall not make any law which takes away any of the rights guaranteed under Part III of the Indian Constitution and to the extent of such contravention, the law is considered void. 

Distribution of Power

In federalism, distribution of power forms an important and integral part. Distribution of power between the centre and the state and other coordinate bodies present in the Constitution.

This division of governmental powers into national and regional governments is done by way of 3 lists which are the Union, State and the Concurrent lists. These lists provided in the 7th Schedule to the Constitution. Only the Central government deals with the issues mentioned in the Union List. State government legislates on the areas mentioned in the State List while the Concurrent List contains subjects where both the Center and the State can function. This concept is borrowed from the Canadian Constitution. However, there are certain items which do not present in any of these three lists. These are called residuary powers and lie primarily with the Centre as per the Entry 97 of Article 248. The reason behind this is to make the Parliament competent enough to legislate on any subject which is not identifiable at present. Thus, the principle of division of powers, which the concept under context, promotes, highlights the federal structure of the Indian Constitution.

Written Constitution

A federal Constitution must be written. Since the federal nature of the Constitution involves a lot of contracts hence it would be impractical not to have these written. Moreover to maintain the supremacy of the Constitution it is imperative to have a written Constitution.

The United Kingdom does not have a written Constitution and therefore it is not regarded as a federal country. The States in a federal system, come together and enter into a treaty and the terms of the treaty are required to be in writing in the form of a written Constitution. There is no denial of the fact that a written Constitution brings stability in the overall governance of the country. If there were no written Constitution defining the scope of the powers of Centre and the States, there will be chaos and confusion. Moreover, misunderstandings and conflicts will arise between the Centre and the States who would seek to cross over each other’s authority.

Rigidity 

The Constitution should be rigid and permanent. A lousy set of the document cannot be said to a federal Constitution. The method of the amendment should be rigid, otherwise, the basic principles of the Constitution would be under threat. However, the rigidness of the Constitution should not be confused with inflexibility. The Constitution is an organic document and should be flexible enough to accommodate according to the changing times.

Rigidity in a Constitution also means that it cannot be amended unilaterally without the participation of the states. In the United States, that is an example of classical federalism, it is an established rule that no part of the Constitution can be amended without the ratification of at least 3/4th of the individual States. Another example is Switzerland, where no amendment can be brought into force unless it is ratified by a majority of votes i.e. referendum. Same is the case with Germany, where the states do have a major role to play in the amendment of the Constitution but even the German parliament cannot amend as far as the federal features are concerned like division of the federation into States or the participation of the States in making amendments in the legislature, these features are exclusively made non-amendable because Germany is also a federal country. 

These examples justify that the rigidity of the Constitution is a primary feature of any federal form of government and the same has been imbibed in India too. In India, any provisions which deal with the centre and state relations could be amended only after all the states have ratified the amendment which is proposed. It is also important to note that the ratification must come from at least 50% of the states. For example, in the case of Kihoto Hollohan vs Zachilhu & Ors where the court rejected the addition of Para 7, which affected the jurisdiction of the high courts present in the State, in the 10th Schedule by way of 52nd Constitutional Amendment. This amendment was passed by both the houses of parliament and was not sent for the ratification of the states, so it was ultra vires and the Supreme Court declared the 52nd Amendment and the 10th Schedule to be unconstitutional and void. The doctrine of Severability was applied and only Para 7 was removed and the remaining part of it was held to be valid.

Authority of Courts

The judiciary has the final authority to interpret the Constitution. The rationale for this provision is that only an independent tribunal which is authorized to resolve disputes between the Centre and the States could impartially resolve all the disputes between the Centre and the State government. As regards to India, the Supreme Court is that federal tribunal which has such powers and competency. The Supreme Court is authorised, to exercise such power, by way of the Article 131 of the Indian Constitution. However, for solving the Inter-State Water Disputes the parliament has to create an ad-hoc tribunal to resolve a specific water dispute between two states, for instance, the Cauvery Water Disputes Tribunal which is dealing with the water dispute between Kerala, Karnataka and Tamil Nadu. This power given to the Central Government to create a separate tribunal is although small but significant unitary feature, the Bedgaon Border dispute case pending in Supreme Court. It is between Maharashtra and Karnataka in which Maharashtra claims that the majority of the people in that region are Marathi speaking so the region should belong to them while the Karnataka demands just the opposite. Thus, an independent judicial court is a very necessary federal feature of the Constitution.

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Provisions of the Constitution not supporting the federal principle

Indian Constitution lays down a double polity system, where the Central Government is neither merely the league of States nor the States that are the administrative units or agencies of the Central Government because they have their own Constitutional identity. However, there are some strong centralizing tendencies present in the Indian Constitution which confer maximum power on the Central Government. The reason for this centralisation dates back in history at the time when the Constitution was made. At the time of the partition of the country, the framers thought that if the Central government is not strong, then the country would get fragmented. The Philadelphia Convention which resulted in the formation of the US Constitution also mentioned the term “union”. This term was mentioned there in order to make it a more perfect Union and in the express terms. It is highly probable that the intention of the Constituent Assembly behind adding the expression Union was that they wanted to give an impression that it was an indestructible Union. They must have been feared about the potential Balkanization of the Indian Union. The policy so adopted by the Constituent Assembly was to have an intrinsic partiality in the favour of Centralization i.e. a unitary in spirit.

Union of States

Article 1 of the Indian Constitution states that India i.e. Bharat shall be a Union of States. It is to be examined here whether the use of the word ‘Union’ was intentional or not. Because the word ‘Federation’ has nowhere been mentioned in the Indian Constitution. It was there in the draft Constitution but was later removed. It was, however, a purposeful omission on the part of the drafting committee, its Chairman Dr. Ambedkar, justified this removal by mentioning that the addition of the word “Federation” was added after the ratification of the States.

Appointment of Governors

Appointment of the Governors of various States is done by the Central government. Governor is the Constitutional Head of the State simultaneously he is also the representative of the Centre. The Central government, under Article 355 has to ensure that there is no failure of Constitutional machinery in the State and the states are protected from internal and external disturbance. So, to carry out that mandate, the Central government has the authority under Article 356 of the Indian Constitution, to impose President’s rule in the state, and it is the duty of the governor who has to inform the Centre about the failure of the Constitutional machinery of the State. Governor, unlike President, enjoys some discretionary powers i.e. he can keep a bill for the consideration of the President. The Sarkaria Commission which studied the Centre-State Relations made certain suggestions regarding the appointment of the governor in the state because there was no effective consultation by the central government to the Chief Ministers of the States during such appointments. It was thus recommended that the Governors should be some eminent person from any sphere of life.

In the case of Rameshwar Prasad v Union of India, popularly known as Bihar Assembly Dissolution Case. the Supreme Court put up questions as to the unbiasedness of the Governor as there was a President’s Rule imposed in Bihar after the elections. The reason for this imposition was that no political party was in the position to form the government but when there was a possibility of formation of a government by a political party, the Governor sent a report to the Centre that the Assembly should be dissolved due to the inability of the party to prove its majority. The Centre did not further investigate the report sent by the governor, and on that recommendation, the Assembly was dissolved. the very next day, the Supreme Court said that the Governor did not act according to his duties. Moreover, the Governor is not supposed to be an agent of the ruling party at the Centre. Supreme Court pronounced the judgement in which it was held that the dissolution of the Bihar Legislative Assembly as unconstitutional.

In the case of B.P. Singhal v Union of India, Supreme Court held that a Governor cannot be removed by the Central government on the grounds that he is not in accordance with the policies of the Central government. This cannot be the reason behind the Central government to remove the Governor from his office. If they did, it would be considered as arbitrary.

Thus, this power to appoint Governors that would be the head of the respective States is an essential unitary feature of the Indian Constitution.

Single Citizenship

The Constitution of India has proposed a Single Citizenship for the whole country. In a federal country like the United States of America, there is dual citizenship where a citizen firstly owes loyalty to the respective States and then to the Centre. But in case of India although it is a Federal-State there is still a provision of single citizenship. It implies that all Indian citizens to have allegiance to the Indian Union. Every citizen, irrespective of his birth or residence, is entitled to enjoy civil and political rights throughout India. The Indian Constitution does not recognize State citizenship. In fact, after the abolition of Article 35A and Article 370 of the Indian Constitution, the State of Jammu and Kashmir are also integrated as a part of the Indian Union. Moreover, the claim of Fundamental Rights is common to all citizens.

Parliament’s power to legislate in the national interest 

Under Article 249, Parliament is empowered to make laws with respect to every matter enumerated in the state list only if the Rajya Sabha passes the resolution by a two-thirds majority that it is necessary for the national interest.

The Parliament makes law and it remains in force for 1 and 1/2 years i.e. the law will cease to have any effect, 6 months after the resolution comes to an end because the resolution remains in force for 1 year. The Centre can also make law if there is a request or consent by 2 or 3 States and such law could be adopted by other States. When the national emergency is declared, the Central government gets concurrent legislative power to make certain laws under the state list and if there is a conflict between the two, the central law would preceed.

Parliament’s power to form new States and alter the boundaries of existing States

Article 2 and Article 3 of the Indian Constitution, give the power to the Parliament to redraw the political map of India; to create and abolish the name of the states, alteration of the boundaries of the States or even change their names all this can be achieved by way of a simple majority in the Parliament. Moreover, the Constitution only provides for consultation by the Centre of the concerned State. For example–when Andhra Pradesh was divided into Telangana, then Andhra Pradesh Assembly had passed a resolution opposing the step, irrespective of the opposition the Central Government continued with the separation. The provision, therefore, provides the consultation with the State Assemblies. The President can only prescribe a time frame within which the State Assembly has to take a decision on the proposal of separation of the State or to a merger of States. Examples such as Uttarakhand, Jharkhand and Chattisgarh are also present. In 2007 too, the name of Uttaranchal was changed to Uttarakhand, this too was done without amending the Constitution. Hence, the Central government has an upper hand as far as the creation or abolition of the States is concerned.

Appointment at key positions

Under the 7th schedule of the Constitution, there is a provision mentioned which makes it necessary for the centre to deploy the armed forces of the union to hold the civil powers of the state. Under the Armed Forces Special Powers Act (AFSPA) which is currently active in some of the regions. This Act is invoked when the Centre declares a specified area as a ‘disturbed area’, and then the martial law is declared in that region. The members of the armed forces of the Union are now deployed in that state without the consent of the State government. The act empowers the armed forces to open fire on the people or to exert force to the extent of causing death, in the case, there is a breach of any order. These actions of the armed forces are completely indemnified which means that no suit or criminal proceeding can be filed against them without the prior sanction of the Central Government. 

Moreover, a commission was set up by the Supreme Court to look after the misuse of the Armed Forces Special Powers Act in Manipur. This Commission was headed by former judge Santosh Hegde with former Chief Election Commission J.M. Lyngdoh and retired IPS officer A.K. Singh as its members. On many occasions, the Extrajudicial Execution Victim Families’ Association (EEVFAM) with the Human Rights Alert (HRA) submitted a list of cases of killings in Manipur since 1979 before the Supreme Court and demanded an investigation into these extrajudicial deaths.

Unified judiciary

In India, we have centralised Judiciary with the Supreme Court at the top position as opposed to the federal system having a dual system of courts. The Supreme Court holds the apex position in our unitary judicial system. An endeavour has been made, as far as possible, to ensure its independence and to achieve the goal of ensuring justice. By merit of its place at the apex of the judicial system, the Supreme Court acts as a great uniting force. We have seen that its decisions and verdicts are binding on every court in India. As a result, there is a great possibility of consistency in the whole judicial system present in the country.

Emergency provisions

When the proclamation of an emergency takes place, the division of power between the centre and the state takes a vital change. Under Article 356 of the Constitution of India, if the President deems right that the condition of governance of the state can’t take place according to the principles of the Constitution, then the President can dissolve the legislature and other state machinery and he can himself assume all the state’s functions.

When a proclamation made under Article 356 of the Indian Constitution, the State government can be either dismissed or the Assembly can be kept in suspended. moreover, during the making of the Constitution, the Chairman of the Drafting Committee, Dr. Ambedkar said that power vested under Article 356 has to be rarely invoked. However, this was not the case. Until the Supreme Court judgment of S.R. Bommai v Union of India, the power under Article 356 was already used 90 times. Supreme Court, in this case, restored the federalism by stating that if the decision is found to be passed with a bad intention, then the court can reinstate the government that is removed or if the Assembly is dissolved, the court can restore it. Now Supreme Court has stated that once the President rule is imposed, the Assembly should be immediately dissolved. It should be kept in suspended motion until the proclamation is approved by both the houses of the Parliament. Article 352 and 356 have been adopted from the Weimar Constitution of Germany.

Representation

Representation in the Legislature, which is similar in the case of an actual federation such as the United States of America, is not applicable in the case of India. States in India have differing representation in the Upper House of the Parliament. Representation of States in the Rajya Sabha are not equal. According to Schedule 4 of the Constitution, the representation of the States fluctuates heavily. The largest representation is that of Uttar Pradesh which is 31 whereas the many North-Eastern States have only 1 representation. The members of the Upper House are elected by the provincial legislatures. Even the value of the vote that is casted by the members in the Presidential Elections changes from State to State and is based on the population. The representation of the States in the Upper House is not equal and varies from State to State, which is regulated by the Centre, this is basically a unitary feature, which gives an upper hand to the Centre.

Residuary Powers

Residuary Power refers to the authority of the central government to legislate on the subjects which do not find any mention in the unitary, state or concurrent lists of the 7th Schedule. For example, the laws like Prevention Of Terrorism Act, 2002 and  Terrorism And Disruptive Activities 1987, which are now included in the Unlawful Activities (Prevention) Act, National Investigation Agency Act under which NIA was set up on the lines of FBI in the US, to investigate crimes like terrorism. So although public order is a state entry, terrorism is a problem which has an intensity beyond public order, it concerns more with the security of India. When the Lokpal Bill was passed by the Parliament, the States opposed, they said that in one legislation you cannot provide both Lokpal and Lokayukta therefore now the Lokayukta is removed and there is one provision which states that the States are supposed to make Lokayuktas within 2 years of passage of this Bill because Central Legislation creating Lokayuktas for the States has not been in consonance with the federal scheme of the country.

In the past, several states have demanded that the residuary powers, like those of taxation, should be vested in the States. In the contradiction of this demand, the Centre has time and again pointed to a strong centralised bias of the country’s federal structure. The Sarkaria Commission, which in its report also reasoned the transfer of the residuary powers to the Concurrent List because it felt that the exercise of such powers by the States would ultimately be subjected to the rules of the Union Supremacy which would be in synchronisation with the unitary spirit of the Indian Constitution, especially with Article 256 and Article 254 of the Indian Constitution.

Conclusion 

The Indian Constitution empowers the Centre to interfere in the State matter and thus places the State in a subordinate position which violates the federal principles, therefore Indian Constitution is neither purely federal nor purely unitary but it is a combination of both, It is quasi-federal Constitution i,e, “unitary with federal features” or “federal with unitary features”.

The most remarkable achievement of the Indian Constitution is to confer upon a federal system and to strengthen the unitary government. Though normally the system of government is federal, the Constitution enables the federation to transform itself into a unitary state in an emergency. So writers like K.C. Wheare called it “Quasi-Federal, Jennings called it as an “A Federation with a strong centralising tendency, McWhinney called it “Essentially unitary,” but on the other side writers, like, Sawer and Neumann called it  ‘a Federal Constitution’. D.D. Basu’s conclusion on this point is that “The Constitutional system of India is basically federal, but of course, with striking unitary features.”

The Supreme Court has time and again reiterated that the kind of federalism practised in the United States of America is not a part of the basic structure of the Indian Constitution. The federalism in India is unique and is made according to the need of the Indian milieu. 

Dr. B.R. Ambedkar had thus rightly said that the Indian Constitution would be both unitary as well as federal according to the requirements of the time. The Drafting Committee wanted to elucidate that though India was a federation, it was not as per any voluntary agreement between the States. The division of the country into states is only to facilitate the administration and does not affect the functioning as an integrated unit.

Moreover, on analysis, it was found that at the core of every federal principle, which is functional in our country, the ultimate force is unitary in nature. Therefore it would be appropriate to say that India has a federal structure but it is unitary in spirit.

References


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