This article is written by Shaivy Maheshwari, a second year student,  pursuing BA.LLB from Symbiosis Law School, Noida. This article deals with Unitary Features of the Indian Constitution. 

Introduction

The Constitution of India casted upon itself, the duty to respect and preserve its huge cultural and ethnic diversity. A country having landmass of 3.28 million square km, it became necessary for constitution makers to build a strong foundation of the constitution so that its roots could not be loosened even in the near future not neglecting the fact of its existing differences. The Indian Constitution, with great foresight not only recognizes the religious and ethnic diversity but also promotes and sustains the cultural diversity of India by extending universal adult franchise, minority protection and positive discrimination for the historically deprived section of the count[1].

But how does a country with so much diversity maintains this given that differences are bound to arise with respect to the personal preferences and methods? Perhaps it would try to focus on giving powers to some of these independent institutions and at the same time would make the institutions guiding and supporting them comparatively stronger. The intention of our constitution makers so as to the powers given to our central government  becomes an important subject to study in this matter.

This article studies why the constitution makers incorporated unitary features in the first place, the provisions where these may be found and their overall assessment.

The article tends to answer following questions:

1. How do our constitution makers justify the adoption of a quasi-federal structure of government instead of a purely federal one?
2. What has been the judicial standing so far with respect to the powers of the center?

Critical Analysis

Article 1 gives the definition of the kind of polity that our country has adopted. The omission of the word “federal” seems to be deliberate[2] because it suggests that even though the Union being federal in character (the units have been designated as “States” and not as “Provinces”, there is some kind of Unitary imposition upon them. There are a lot of provisions in our constitution that give considerable powers to the central government and its essence is felt in the whole of the constitution[3]. Let us take a look upon these :

Power to make laws

The Constitution of India, provides with an inequitable distribution of powers with respect of making of laws in the country. The States have been given the power to make their own laws affecting the State as provided under article 256 of the Constitution [4]. But the fact of unitary bias lies under article 248 of the Constitution which provides that the residuary powers to legislate the laws remain under the control of the parliament and not the state legislatures. This lies as against  the powers granted to the states in the United States of America and even Australia[5]. Also, as provided under 249, in the national interest the Parliament has the power to legislate with respect to a matter enumerated in the State List[6].

(ii)  Territorial Integrity

Article 3 of the Constitution provides that the Centre may interfere with the boundaries and area of the States as it deems fit provided that it follows the procedure given under the act. This is unlike other federations which provide with territorial integrity to the States. This makes our country “Am indestructible Union of destructible States”.

(iii)  Flexibility in the Amendment process

As compared to the other federations, our constitution provides with a comparatively easier process for the purpose of amendment. Article 368 says that if there is an amendment then it shall be passed by the parliament in its both houses such that the majority endorsing it must be two-thirds of the total number and then it shall be passed on to the president for his signature. In US, the States also have the power to initiate amendments into the Constitution.

(iv) Provisions of Emergency

Article 353 confers wide executive and legislative powers on the Union over the states in the event of declaration of emergency[7]. During the course of an emergency, all the states come under the direct and absolute control of the Central government. Hence under all kinds of emergencies be it financial, national or state innumerable powers are granted to the State. Article 360 provides for the proclamation of a financial emergency by the President for promoting the stability or credit of India or any part thereof[8]. In case of such a declaration the Union acquires wide executive and legislative power over the States[9].

(v) Provision of Single Citizenship

Article 9 of Part II provides that if a person voluntarily acquires the citizenship of any other county, then he loses the citizenship of India. Hence, if a person wants to continue with his Indian citizenship, he is disallowed from having citizenship of any other State. This is unlike the other federal countries, which provide for dual citizenship (having separate citizenship of the State) like the countries of USA and Switzerland.

(vi) Integrated Judicial System

There is a kind of integrated judicial system in our country in which the highest power has been granted to the Supreme Court. Other than this, each state has been granted with a high court followed by the district courts at the district level. The appointments in these institutions are made by the president. The president makes these appointments not only at comparatively lower level of the High Courts but also the Supreme Court[10].

This is unlike in countries like US where the State laws are enforced by the State judiciary and federal laws are enforced by the federal judiciary.

(vii) Governor

India, being inspired from the Canadian system appoints a governor who acts as the head of the particular state. As the Part A of the Constitution specifies, the president makes the appointment of the governors of every state by the lieu of his warrant. The executive functions of the State rest under him by the virtue of Article 154 of the Constitution. This is as against the elected head of the State in cases of the federal countries.

(viii)  Conduct of Elections

There are separate machineries to conduct elections for both the federal as well as the state levels in the federal countries.

In India, the conduct of elections under both Centre and state level are carried out an independent separate body known as the election commission[11]. The president constitutes such body and at the same time has the power to remove its members.

(ix)  The National Flag

While the constitution of India does not explicitly prohibit the hoisting or development of personal flag of the states, it however regulates the use of the national flag to the extent that it is not dishonored in the process. The same has been highlighted under Article 51A of the Constitution.

(x)  Financial Power

Under Part XII of the Constitution, the centre has been granted immense powers to handle the financial affairs of the country. It has been exempted from the state taxes and has been granted the power to handle most of the affairs relating to the trade and commerce of the country. Also, most of the development plans in a state remain dependent upon the funding or some kind of financial assistance by the cent. For example – Article 269 of the Indian Constitution which provides that the particular  central taxes specified in the said article would be levied by the states.

Intention Behind The Quasi-Federal Structure

Under the Dráft Constitution India becomes a Union of States[12]. Perhaps the drafting committee attempted to make the country a unitary type while preserving the ideas of a federal structure. It is evident that federalizing has normally been everywhere a process of uniting[13] which is exactly the purpose that our Constitution tends to achieve. Hence, it would be best if they for the time being looked at the examples of countries like  USA, Australia, Canada and Switzerland and select what is best suited for them under these circumstances.

Owing to its large size and diverse population, India was somewhat fated to have a governmental system in which both local initiative and strong control was necessary[14]. This is because if the units would not get their own power and identity, they would refuse to abide by the rule of the Centre and this would lead to fragmentation of the country and if the Centre would be weak, the units would exercise their power and the whole administration would ultimately collapse.

According to the Nehru report, it was recommended that there should be devolution of powers of 1919 Act based upon centralized federal structure[15]. Yet for the sake of ‘peace and amity’ the members agreed to establish a loose federal structure in which residuary powers would be vested in the provinces[16].

Assessment Of The Indian Federal Structure

In the ‘’quasi-federal’ definition given by K.C Wheare, there are still certain loopholes since it fails to describe what is the degree to which deviation can be possible from the ‘pure federal structure’ in order to make it a quasi-federal one. When it comes to countries like India practical insights, history and geographical diversity become important factors in determining which should be that foundational structure over which the government should work.

So far in the Indian Constitution, the problems lie mainly due to the party politics between different states and the central government. A lot of prerogatives are also given to the central government especially when it comes to the management of the fiscal resources. For example – The GST tax which has combined different taxes to a single one. The  procurement of the GST tax would be divided among different states according to a prescribed ratio of each state.

Also under the legislative purview, many difficulties did occur until the judicial interference of some kind took place. In the case of State of Rajasthan v. Union of India[17], the court clearly pointed out the essence of federalism in India in which it said that the extent to which federalism is gifted to the States shall be latent when it comes to the progress and development of the country. The states shall not interfere when it comes to the planned development of the whole country under the directions of the central government. Besides, there also have been times where it became necessary to protect the essence of the constitution by saying the basic structure of the constitution (including federalism) remains unchanged by a simple majority in the parliament[18]. Also, in the case of S.R Bommai[19], the judiciary thought to be necessary to put an end towards the misuse of article 356 of the constitution by the central government.

Conclusion

While drafting the Constitution, the makers kept in mind that there is a kind of diversity that is unique to India and which cannot be found elsewhere especially in any of the federal countries. Hence, it was necessary that there was some kind of power that binds the individual powers of the units or else the administration would disintegrate. Also, it was necessary that there is some kind of check on the power of central government and that was created by giving powers to the units (states) to deal with the matters concerning their own affairs. The Indian Constitution is a unique one since it is sort of a novel type which combines both the features of unitary as well as a federal form of government. It is called ‘the union of states’ rather than a pure federation.

The unitary features of the Constitution are hence used to nation’s unity and overall growth. It therefore provides utmost value to the national interest and then the subjective and particular interests of the communities. While most of the times it helps in keeping the country together and moving forward but sometimes as the history has shown, these provisions can also be misused by the Centre and therefore the judicial interference becomes necessary. Not only this, the powers of the centre are also evident when it comes to the distribution of the financial powers in the country. Many a times, the states become dependent over the centre to cater to their development needs and other financial assistance.

References

• Dandekar, V. (1987). Unitary Elements in a Federal Constitution. Economic and Political Weekly, 22(44), 1865-1870.
• Dash, S. (2007). INDIAN FEDERALISM & DISTRIBUTION OF RESPONSIBILITIES. The Indian Journal of Political Science,68(4), 697-710. 
• Louise Tillin. “United in Diversity? Asymmetry in Indian Federalism.” Publius 37, no. 1 (2007): 45-67.
• Maharana, D. (2010). IN DEFENCE OF INDIAN PERSPECTIVE OF MULTICULTURALISM. The Indian Journal of Political Science, 71(1), 69-83.
• Srivastava, Gur Prasad. “SOME UNITARY FEATURES OF OUR NEW CONSTITUTION.” The Indian Journal of Political Science11, no. 4 (1950): 62-65.
• Srivastava, V. N. “INDIA—A UNION OF STATES UNDER THE DRAFT CONSTITUTION.” The Indian Journal of Political Science 10, no. 3 (1949): 45-48.

Notes 

• [1] Maharana, D. (2010). IN DEFENCE OF INDIAN PERSPECTIVE OF MULTICULTURALISM. The Indian Journal of Political Science, 71(1), 69-83.
• [2] Srivastava, Gur Prasad. “SOME UNITARY FEATURES OF OUR NEW CONSTITUTION.” The Indian Journal of Political Science11, no. 4 (1950): 62-65.
• [3] Dandekar, V. (1987). Unitary Elements in a Federal Constitution. Economic and Political Weekly, 22(44), 1865-1870.
• [4] Article 246 of the Constitution of India
• [5] Srivastava, Gur Prasad. “SOME UNITARY FEATURES OF OUR NEW CONSTITUTION.” The Indian Journal of Political Science11, no. 4 (1950): 62-65.
• [6] Article 249, THE CONSTITUTION OF INDIA
• [7] Dandekar, V. (1987). Unitary Elements in a Federal Constitution. Economic and Political Weekly, 22(44), 1865-1870.
• [8] Article 360, The Constitution of India
• [9] Dandekar, V. (1987). Unitary Elements in a Federal Constitution. Economic and Political Weekly, 22(44), 1865-1870.
• [10] Dandekar, V. (1987). Unitary Elements in a Federal Constitution. Economic and Political Weekly, 22(44), 1865-1870.
• [11] Article 324, THE INDIAN CONSTITUTION.
• [12] Srivastava, V. N. “INDIA—A UNION OF STATES UNDER THE DRAFT CONSTITUTION.” The Indian Journal of Political Science 10, no. 3 (1949): 45-48.
• [13] Srivastava, V. N. “INDIA—A UNION OF STATES UNDER THE DRAFT CONSTITUTION.” The Indian Journal of Political Science 10, no. 3 (1949): 45-48.
• [14] The Indian Constitution: Cornerstone of a Nation 2 Oxford University Press, 1999.
• [15] Nehru Report, 1928,24.
• [16] Sapru Report, para 226, p. 177.
• [17] State of Rajasthan v. Union of India AIR 1994 SCC (3) 1
• [18] Keshvananda Bharti v. State of Kerala and Anr AIR 1973 SC 1461
• [19] S.R Bommai v. Union of India  AIR 1994 SCC (3) 1