In this article, Uzzair discusses Federalism under the Indian Constitution – Meaning and Features.
A federal government is a system of government that separates the power between central government and state government of the country. It delegates certain responsibilities to each sector so that the central government has its own task to do and state government has its own.
A Quasi-Federal government is a system of government that separates the power between central government and state government of the country but in quasi-federal government, the central government assigned more power than the state government. In a quasi-central government system, the central government can interfere in the decision which is made by the state government.
Nature of Indian federalism
The constitution of India has not described India as a federation. However, Article 1 of Indian constitution describes India as a ‘’Union of States.’’ This means India is a union comprising of various states which are an integral part of it. Here, the states cannot break away from the union. They do not have the power to secede from the union. In a true federation, the constituting units or the states have the freedom to come out of the union.
India is not a true federal government because it combines features of a federal government and the features of unitary government which can also be called as a quasi-federal government.
Federal Features of Indian Constitution
1. Two sets of Government
There are 2 sets of government in India and that is union government and central government. Central government looks after the whole country and state government mainly works for the states. Working of both governments are different.
2. Division of Powers
Powers between central government and state government have been divided by Constitution of India. The seventh schedule of the Indian constitution provides how the division of powers is made between state and central government. Both central and state governments have separate power and responsibilities.
The 7th schedule of Indian constitution consists of union list, state list, and concurrent list.
- It contains all the matters on which only central government can make laws.
- It contains all the matters on which state government can make laws.
- It contains all the matters on which both central and state government can make laws.
India has the one of the largest constitution in the world which consist of 395 articles 22 parts and 12 schedules. Every article of Indian constitution is clearly written down and has been discussed in full detail.
Supremacy of the Constitution
The Constitution of India is regarded as supreme law of land. No law can be made or passed against the constitution of India. The Constitution of India is above all citizens and organizations of the country.
The Supreme Court of India is regarded as the superior court of the country. The decision of the Supreme Court is binding upon all courts and it has the power to interpret the articles of the constitution.
In India, the legislature is bicameral. It has two houses and that are Lok Sabha and Rajya Sabha. The upper house of the parliament which represents the states is Rajya Sabha and the lower house of the parliament which represents the people in general is Lok Sabha.
The constitution of India consists of federalism features such as division of power, supreme judiciary, two set of government, bicameral-legislation etc which clearly shows its Federal nature. The division of power between state and central government shows the federal nature of the India and supremacy of judiciary shows the absolute power of the supreme court that its decision is supreme and binding upon all courts. However, the powers given to the central government have more weight in comparison to the state government.
How GST undermines the federal structure of the Constitution?
The GST authorities have included all the indirect taxes under a single taxation regime. However, taxation is a sovereign function and is divided into 2 main parts collection and imposition. As per GST, union collects the tax but will be redistributed to the states as per the recommendations of the council. The federal feature of Indian constitution states that there must be distribution of powers between central and state government. Article 246 of constitution gives power to both union and state government to make laws in the respective matters provided in the union list, state list and concurrent list. But GST have taken away the freedom of individual states to levy taxes as per it own need and customer oriented tax, therefore it results the states with higher production will lose taxes.
Example of Federalism in respect of GST and Taxes on Alcohol, Petrol, and Diesel
As per schedule 7 of Indian constitution the power to make laws and impose taxes divided between central and state government.
Under GST both center and state governments have been given up taxation powers and as a result following taxes have been eliminated.
Central Taxes that would fall under the ambit of GST are
- Central Excise duty
- Duties of Excise (Medicinal and Toilet Preparations)
- Additional Duties of Excise (Goods of Special Importance)
- Additional Duties of Excise (Textiles and Textile Products)
- Additional Duties of Customs (commonly known as CVD)
- Special Additional Duty of Customs (SAD)
- Service Tax
- Central Surcharges and Cesses so far as they relate to the supply of goods and services.
State Taxes that would fall under the ambit of GST are
- State VAT
- Central Sales Tax
- Luxury Tax
- Entry Tax (all forms)
- Entertainment and Amusement Tax (except when levied by the local bodies)
- Taxes on advertisements g. Purchase Tax
- Taxes on lotteries, betting, and gambling
- State Surcharges and Cesses so far as they relate to the supply of goods and services.
Taxes on Alcohol, Petrol, and Diesel
The central government has decided to keep alcohol, petrol, and diesel out of the GST and state government has retained the power to tax sale of petroleum products and potable liquor with themselves. Both state and central government charge taxes on alcohol, petrol, and diesel. However taxes on alcohol, petrol, and diesel varies state to state there are no fixed tax charges on alcohol, petrol, and diesel.
Non-Federal Features of Indian Constitution
Division of power is not equal
In India central government has been given more powers than state government. Usually in federal government powers are divided equally between the two government.
Another non-federal feature of Indian constitution is that it only have single constitution. There are no separate constitutions for the states in India and it is applicable to both the union as a whole and the states. In a true federal system there are separate constitutions for the state and union.
The constitution is not strictly rigid
Another non-federal feature of Indian constitution is that it can be amended by the Indian parliament. Parliament on many subject matters does not need the approval of the state legislature to amend the constitution. However, in true federal government both state and central government take part in the amendment of the constitution with respect to all matters. Therefore, those constitutions are rigid and not easy to amend.
Central control over states
Another non-federal feature of Indian constitution is that central government has control over state government. This means that any law made by the central government has to be followed by the state government and the state government cannot interfere in the matters of central government.
In India citizens only have single citizenship of the whole country. But in true federal government, citizens are alloted dual citizenship. First, they are the citizens of their respective provinces or states and then they are the citizens of their country.
6 Parliament does not represent the states equally
In India the upper house (Rajya Sabha) and lower house (Lok Sabha) do not have equal representation in states. The state which is more populous have more representatives in the Rajya Sabha than the state which is less populous. But, in a true federal government the upper house of the legislature has equal representation from the constituting states.
The Indian judicial system is unified or integrated and supreme court of India is regarded as the highest court of justice in the country. High courts and all other subordinate courts are under the supervision of the supreme court.
Proclamation of emergency
President of India has been given emergency powers by the constitution of India. However, he can execute such powers and declare emergency in the country under three conditions. Once emergency is declared by the president the central government become dominant and the state governments come under the total control of it. The state governments lose their liberty and this is against the principles of a federal government.
What makes India Quasi-Federal?
There are many examples which clearly shows that the Indian constitution has federal features but it also shows that it has been evident with quasi-federal features too. Some of the examples which show that India is a quasi-federal are followed as-
– Division of power between the central and state government but the central government has been given more power than the state government.
– Parliament can override the laws which are passed by the states for the reason of national interest.
– Residual powers are vested with the central government.
– Major taxation powers are also vested with the central government.
– Parliament does not represent the states equally, however, in a pure federal government the upper house of the legislature has equal representation from the constituting states. But in our Rajya Sabha, the states do not have equal representation. The populous state has more representatives in the Rajya Sabha that the less populous states.
– In India, citizens are allotted single citizenship which is not a feature of pure federal government. As in true federal nation, citizens are allotted dual citizenship. First, they are the citizens of their provinces then they are the citizens of their nation.
Constitutional Debate on Federalism
Dr. Ambedkar listed several features of the draft constitution which mitigated the rigidity and legalism of federalism in his historic speech in the constituent assembly in november 1949. The following features are follows as:
- Article 246 of Indian constitution distributes legislative power between union and states. It gives union exclusive power to legislate in respect of matters contained in list 1 and concurrent power to legislate in respect of matters contained in list 3 of schedule 7 of the constitution.
- Parliament is given power to legislate on exclusively state subjects matters namely:
- Article 249 of Indian constitution gives power to parliament with respect to matter in the state list in the national interest.
- Article 250 of Indian constitution gives power to parliament in respect of any matter in the state list if a proclamation of emergency is in operation.
- Article 252 of Indian constitution gives power to parliament to legislate two or more states by consent of those states.
- Article 352 and 353 states about provisions for the proclamation of emergency and the effect of such proclamation.
- There are provisions included in the constitution which are to be operative unless parliament made any contrary provision or word to the same effect.
- Article 368 of Indian constitution states about provisions regarding the amendment of the constitution.
Dr Ambedkar made it clear that the provisions make the Indian constitution both unitary as well as federal according to the requirements of time and circumstances. He further stated that in normal times it is framed to work as a federal system. But in times of war it is designed as to make it as though it was a unitary system. He also made it clear that Article 250, 352, 353 of Indian constitution can only be exercise by the President of India and requires the approval of both houses of the Indian parliament.
- State of Rajasthan v Union of India, 1977
In State of Rajasthan v Union of India, 1977 former chief justice Beg, called the constitution of India as “amphibian” he further stated that if our constitution creates a central government which is amphibian in the sense that it can be either federal or unitary according to the need of the situation and the circumstance of the case.
2. S.R. Bommai v Union of India
In this case the court stated that the president should exercise his powers only after his proclamation is approved by both houses of parliament. The power of president to dismiss a state government is not absolute.
3. Haryana v State of Punjab
In State of Haryana v State of Punjab the term semi-federal was used for India and in Shamsher singh v State of Punjab the constitution was called more unitary than federal.
4. State of West Bengal v Union of India
This case dealt with the issue of the exercise of sovereign powers by Indian states. In this case, the Supreme Court held that the Indian constitution does not promote a principle of absolute federalism. The court further states 4 characteristics highlighting the facts that the Indian constitution is not a traditional federal constitution.
- The first characteristic is highlighted by the court is that constitution of India is the supreme document which governs all states and there is no provision of separate constitutions for each state as required in the federal state.
- The second characteristic is highlighted by the court is that the states have no power to alter the constitution but only central government has the power to alter the constitution of India.
- The third characteristic is highlighted by the court is that the Indian constitution renders supreme power upon the courts to invalidate any action which violates the constitution.
- The fourth characteristic is highlighted by the court is that the distribution of powers facilitates national policies matter by central government and local governance by the state government.
The Supreme Court further held that the central government is the final authority for any issue. The political power distributed between both union and state government with greater weight given to union government.
Another thing which is against the pure form of federalism is there is concept of single citizenship in India.
The learned judges finally concluded that the structure of India as provided by the constitution is centralized, with the states occupying a secondary position vis-à-vis the Centre.
The Indian government is quasi-federal in nature as it contains features of single citizenship, a single constitution, and flexibility of constitution which are not the features of a pure federal government which is only followed in the United States of America. Although the Indian government contains features of Federal government such as division of power, partly rigidity of constitution it does not consider as pure federal government but as quasi-federal government.
- 1977 AIR 1361
- 1994 AIR 1918
- 1992 SC2219
- 1963 AIR SC 1241