Essentials of federalism.docx

Essentials of Federalism

Submitted to

Dr. Asad Malik  Faculty of Law Jamia Millia Islamia

By

Tushar Gupta rd

3 semester  Faculty of Law Jamia Millia Islamia

Acknowledgement

Writing the Acknowledgement for the project in the subject of Constitution is a fairly simple undertaking for anyone who has attended even a single class of Dr. Asad Malik. The clarity, the command and the humour he brings into every class is infectious, making any student believe that there can be no easier subject that the Indian Constitution and that anyone can master it, provided he gives the subject the respect and recognition that Sir himself gives the subject. Furthermore I would like to thank all those people who gave the subject their time and wrote books which I eventually referred. In this matter, I would particularly like to thank Dr. M. P. Jain, whose book was precise and the largest reference in this work. Without the contribution of the above said people I could have never completed this project. In addition, I would also like to thank Saquib Mukhtar, without whose laptop, I could have never typed out this project.

Contents Introduction Federalism in the Indian Constitution The basic features of a federal government History of Federalism in India

Federal structure in India

Conclusion

Introduction “The Distribution of power is an essential feature of federalism. The object for which a federal State is formed involves a division of authority between the National government and the separate states, the tendency of federalism to limit on every side the action of the government and to split up the strength of  the state among co-ordinate and independent authorities is especially noticeable, because it forms the essential distinction between a federal system 1 and a unitary system of Government.”

Federalism, it is universally acknowledged, has many virtues. Federal governance  promotes efficiency, both economic and political. Federalism is considered efficient from the political angle as well because of the facility it provides for a heterogeneous population to come together under the banner of one nation and acquire strength from unity while allowing the constituents to retain their identity and autonomy over a wide area of public life. A well designed, and more important, well functioning system of federal governance, by virtue of its manifold  benefits, plays a key role in promoting the stability and prosperity of nations as the heights attained in development by the leading federations of the world  –  USA, Canada, Australia and Switzerland  –  demonstrate. On the other hand, unless carefully crafted, federal systems do not endure as evidenced by the disintegration of many of the federal formations that came into being in the last century, such as Soviet Russia, Yugoslavia, Czechslovakia and Rhodesia. The art of federalism lies in designing institutions with appropriate assignment of powers and functions among different orders of government and rules to regulate their relationship especially in the fiscal arena that can strike the right balance among different objectives and resolve tensions.

1

A. V. Dicey  – The Law of the Constitution, p. 151, 155 (10

th

Edn. 1959)

The definition of federalism as given in the discussion at the Berne conference of  2011 hosted by the World Bank, U.S. Institute for Peace, and the Swiss Federal Department of Foreign Affairs is as follows, Federalism refers to a system of somewhat autonomous units (the ―constituent units‖) brought together under one unified system (the ―federal government‖). Typically, the federal government has limited functions that are thought to be important to all the constituent units and which the separate constituents would not  be able easily to perform on their own  –  this means that a vertical allocation of  responsibilities must occur between the federal level and the constituent level. At the same time, there are usually aspects of autonomy for the constituent units which should be protected from interference by other constituent units  –  an allocation of responsibilities horizontally. The essential elements of a federal system thus are: 

constituent units



federal government





allocation of responsibilities vertically allocation of responsibilities horizontally

Federalism in the Indian Constitution

To all appearances, the constitution that has formed the basis of governance in India since independence; is federal. Though not formally designated as federal —  it is proclaimed as a 'Union of states' in its very first article — the constitution has all the trappings of a federal polity, viz., statutorily mandated two layers of  government with specification of their respective powers and functions and also the fiscal institutions that are needed to support a federal structure including mechanisms for intergovernmental transfers to address the vertical and horizontal imbalances that all federations unavoidably face. One entity is not subordinate to the other in its own field; the authority of one is co-ordinate with that of the other. The Indian political system though supposedly decentralized and federal is too centrist. It is quasi-federal at best and does not allow enough room for the states to function freely or decentralization to come into full play. In particular, what lends credence to characterization of India’s constitution as 2

unitarist or quasi-federal are: 

A large concurrent list covering wide areas like economic and social  planning with residuary powers with the centre;



Primacy of central laws in the event of any conflict between a state legislation and a parliamentary law;

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Requirement of governor's assent for laws passed by state assemblies and of  3

 president's assent for state enactments in certain matters .

2

3

Chelliah, 1991 Article 201



Power to parliament with qualifying majority to redraw the boundaries of a state, divide it, and create new ones.

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Power to the centre to take over the administration of a state in certain 4

circumstances and promulgate 'President's Rule' .

The basic features of a federal government

Chief essentials for a constitution to be federal are: 1. Dispersion of powers between the center and the unit states forming federation among a number of co-ordinate bodies, controlled by constitution. 2. Rigidity – neither the center nor the state has power to amend the provision of  constitution relating separation of powers. 3. A written constitution 4. Domination of the constitution – neither of center nor state has power to nullify the constitution 5. An independent body and unprejudiced authority 5

In Pradeep Jain v. Union of India , the Apex Court expressed as India is not a federal State in the traditional sense of that term. It is not a compact of sovereign State which have come together to form a federation by ceding undoubtedly federal features. The basic idea that has to be agreed to with is that the Constitution of India is supreme and the Central legislative body cannot make any changes to those laws 4 5

Article 356 1984 SCR (3) 942

included to define the power sharing arrangements between the Center and the States in the country. This makes the Constitution of India federal in its approach to power sharing between the center and the sub-ordinate units of the country. But then it also has to be noted that there is no clear distinction of the division of   power between the center and the states, this can be seen as evident from the fact that there are provisions for the over-riding of the will of the states in cases where there is the implementation of Art. 201 and Art. 356. Articles 356, 352 and 360 give the power to the president to declare emergency, which can transform federal system into a unitary system; however the provision is meant for temporary and can be used only under certain exceptional situations under certain restrictions created through judicial intervention, there are many circumstances in which the central government has used this power to dissolve the state governments of the opposite parties and to remain in power at the centre. It also has to be noted that in the introduction of the Concurrent list, there is confusion as to which entity, i.e. the Center or the States have the last say in the matter, though it is accepted that if the two entities are in direct opposition to eachother, then the decision of the Union shall be considered to have more weight than that of the State.

History of Federalism in India

The framing of the Indian Constitution and enunciation of the principle of  federalism would have weighed heavily on the conscious and subconscious minds 6

of the members of the Constituent Assembly (CA), formed in December 1946 . Writing of the Constitution against the backdrop of the partition of the country, the 6

Lawrence Saez, Federalism without a Centre (New Delhi: Sage Publications, 2002 , p 26

accompanying communal frenzy and integration of 565-odd princely states with erstwhile British provinces into one functioning unit, would have made the task  even more complex. The Constituent Assembly, after prolonged debates, settled for ―unitary‖ federalism in the backdrop of the challenges confronting the emerging or just emerged independent nation. Even though the framers of the Constitution were divided on the issue of federalism as indicated by the prolonged and passionate debates that took place in the Constituent Assembly, there was a general consensus towards building India as a nation and a comprehensive understanding of the nation as a whole; they did not approach the issue of  constitution writing visualizing India in parts. Further, historical experiences, like the rise and fall of the Mauryan, Gupta, Mughal and other empires, could also have  built the argument in favour of ―unitary federalism‖. Before the formation of the Constituent Assembly, the Cabinet Mission Plan had ―outlined a central government with very limited powers to be confined to foreign affairs, defense and communications‖

However, the Indian National Congress and the Muslim League could not reach an agreement on the Plan. Further, the first report by the Constituent Assembly also envisioned a relatively weak Centre as advocated by the Cripps and Cabinet Mission Plans. ―The passing of the India Independence Act and the eventual Partition of India led the Constituent Assembly to adopt a more unitary version of  federalism‖.

Interestingly, Mahatma Gandhi was in favour of a decentralized structure and had expressed a preference for a panchayat or village-based federation. Dr B. R. Ambedkar and Prime Minister Jawaharlal Nehru were in favour of a unitary

state while Home Minister Sardar Vallabhbhai Patel and many others stood for the cause of federalism.

Ultimately a healthy compromise was arrived at, to ensure a balance of power   between the Centre and States and the Constitution described India as a 'Union of States' implying that its unity is indestructible. It prescribed the structure of the Union government and also that of the state governments, together with one common citizenship for the whole of India rather than a dual citizenship. The federal system brought the provinces together and placed them all on the same legal footing. ―Use of the term 'union' indicated that Indian federalism did not come into existence due to some mutual agreement or compact among the constituent units. These units were also not given freedom to secede from the union. There were no provisions of safeguards for the protection of states' rights  because the states were not sovereign entities at the time of the formation of the Union‖.

It goes to the credit of the framers of the Constitution that they had visualised and anticipated contingencies which might arise at some point in the future and had made provisions to meet them. As pointed out by constitutional experts, ―The Constitution by adapting itself to changed circumstances strengthens the Government in its endeavour to overcome the crisis‖. ―It is rather a merit of the Constitution that it visualises the contingencies when the strict application of the federal principle might destroy the basic assumption on which our Constitution is  built‖.

Federal structure in India

7

In Ganga Ram Moolchandani v. State of Rajasthan the Supreme Court restated: Indian Constitution is basically federal in form and is marked by the traditional characteristics of a federal system, namely supremacy of the Constitution, division of power between the Union and States and existence independent judiciary. The 8

apex Court in ITC LTD v Agricultural Produce Market Committee expressed a similar opinion. 9

In the Kesavananda Bharati vs. state of Kerala case, the Supreme Court ruled that all provisions of the constitution, including Fundamental Rights can be amended. However, the Parliament cannot alter the basic structure of the constitution like secularism, democracy, federalism, separation of powers. Often called the "Basic structure doctrine", this decision is widely regarded as an important part of Indian history. In the 1978 Maneka Gandhi v. Union of India

10

case, the Supreme Court extended

the doctrine's importance as superior to any parliamentary legislation. According to the verdict, no act of parliament can be considered a law if it violated the basic structure of the constitution. This landmark guarantee of Fundamental Rights was regarded as a unique example of judicial independence in preserving the sanctity of  Fundamental Rights. The Fundamental Rights can only be altered by a constitutional amendment, hence their inclusion is a check not only on the executive branch, but also on the Parliament and state legislatures. The imposition of a state of emergency may lead to a temporary suspension of the rights conferred 7

2001( 3 )SCR 992 AIR 2002 SC 852 9 AIR 1973 SC 1461 10 AIR 1978 SC 597 8

 by Article 19 (including freedoms of speech, assembly and movement, etc.) to  preserve national security and public order. Federal concept in the context of Indian Constitution always has been a controversial question - the States demanding for more powers and less control by Union and the Union advocating for a strong Centre especially to maintain the sovereignty and integrity of the Nation. Article 1(1) of the Indian Constitution, hereinafter referred to as "Constitution" in short, simply says : India, that is Bharat, shall be a Union of States. Federalism and nature of Indian Federalism was well discussed in State of Rajasthan v. Union of India 11, , S.R. Bommai v. Union of  India. In the decision referred in State of Rajasthan case at, the Apex Court held: "A conspectus of the provisions of our Constitution will indicate that, whatever  appearances of a federal structure our Constitution may have, its operations are certainly judged both by the contents of power which a number of its provisions carry with them and the use that has been made of them, more unitary than federal. I mention the use that has been made of the constitutional provisions because Constitutional practice and convention become so interlinked with or attached to Constitutional provisions and are often so important and vital for grasping the real  purpose and function of Constitutional provisions that the two cannot often be viewed apart. And, where the content of powers appears so vague and loose, from the language of a provision as it seems to us to be in Article 356(1), for the reasons given above, practice and convention may so crystallize as to become more significant than the letter of the law. At any rate, they cannot be divorced from Constitutional law. They seem to us to be relevant even in understanding the 11

1978 SCR (1) 1

 purpose, the import, and the meaning of the words used in Article 356(1). This will  be apparent also from a perusal of the judgment of this Court in Shamsher Singh v. 12

13

State of Punjab ."

14

In the decision referred in S.R. Bommai's case , the Apex Court held at Para 107: "The federal State is a political convenience intended to reconcile national unity and integrity and power with maintenance of the State's right. The end aim of the essential character of the Indian federalism is to place the nation as a whole under  control of a national Government, while the States are allowed to exercise their  sovereign power within the legislative and co-extensive executive and administrative sphere. The common interest is shared by the Centre and the local interests are controlled by the States. The distribution of the legislative and executive power within limits and co-ordinate authority of different organs are delineated in the organic law of the land, namely the Constitution itself. The essence of federalism, therefore, is distribution of the force of the State among its co-ordinate bodies. Each is organized and controlled by the Constitution. The division of power between the Union and the State is made in such a way that whatever has been the power distributed, legislative and executive, be exercised by the respective units making each a sovereign in its sphere and the rule of law requires that there should be a responsible Government. Thus the State is a federal status. The State qua the Centre has quasi-federal unit. In the language of Prof. K.C. Wheare, to ascertain the federal character, the important point is, "whether the  powers of the Government are divided between coordinate independent authorities 15

or not" , and at he stated that "the systems of Government embody predominantly 12

1975 SCR (1) 814 Para 51 14 (1994) SCC 1 15 Federal Government, 1963, pg 12 13

on division of powers between Centre and Regional authority each of which in its own sphere is co-ordinate, with the other independent as of them, and if so is that 16

Government federal? " In reference to Art. 136, the Supreme Court has said, "In dealing with this question, it is necessary to bear in mind one fundamental feature of a Federal Constitution. In England, Parliament is sovereign; and in the words of Dicey, the three distinguishing features of the principle of Parliamentary Sovereignty are that Parliament has the right to make or unmake any law whatever; that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament, and that the right or power of  Parliament extends to every part of the Queen's dominions 17. On the other hand, the essential characteristic of federalism is "the distribution of limited executive, legislative and judicial authority among bodies which are co-ordinate with and independent of each other". The supremacy of the Constitution is fundamental to the existence of a federal State in order to prevent either the Legislature of the federal unit or those of the member States from destroying or impairing that delicate balance of power which satisfies the particular requirements of States which are desirous of union, but not prepared to merge their individuality in a unity. This supremacy of the Constitution is protected by the authority of an independent judicial body to act as the interpreter of a scheme of distribution of   powers. Nor is any change possible in the Constitution by the ordinary process of  18

federal or State legislation . Thus the dominant characteristic of the British Constitution cannot be claimed by a Federal Constitution like ours."

16

 page 33 The Law of the Constitution by A.V. Dicey, p.XXXIV 18 The Law of Constitution by A.V. Dicey, p.LXXVII 17

In State of M.P. v. Bharath Singh

19

, it was held that the Indian Federal structure is

founded on; (1) Sovereignty of people with limited Government authority; and (2) Distribution of power between three organs of the State -Legislature, Executive and Judicial, each organ having some check direct or indirect on the other. It is laid down by, that the most important point to ascertain whether a Constitution is Federal in character is whether the powers of the Government are divided 20

 between co-ordinate independent authority or not . In accordance to H. M. Servai, the learned author expressed the opinion that the most important feature of Federal 21

22

Constitution is the distribution of legislative power  . Even A.V. Dicey , had expressed an opinion that the distribution of limited executive, legislative and  judicial authority among bodies each co-ordinate with and independent of the other  is essential to the Federal form of Government. Federal set up is always understood in contradistinction to unitary State. Federalism, whether understood as pragmatic or quasi in the Indian context in view of the division of powers between the Union and States, is accepted to be the basic structure of the Constitution. A comparative study of the Constitutions of Federal set up of the World do throw clear light on the division of powers between the Centre and the States. Local Government or local bodies have been never treated to have division of powers so as to be a tier in the Federal system. It is clear from the very functioning of the Federal Systems of the World. In Kesavananda Bharathi v. 23

State of Kerala , the Apex Court no doubt held that Federalism is the basic 19

AIR 1967 SC 1170 Federal Government, 1963 Edition, Prof. K.C. Wheare 21 "Constitutional Law of India" 4th Edition, Silver Jubilee Edition, H.M. Servai 22 Introduction to the Study of the Law of Constitution, A. V. Dicey 23 AIR 1973 SC 1461 20

24

structure of the Constitution. In Smt.Indira Nehru Gandhi v. Shri Raj Narain , it was held by the Apex Court: "The reason of this restraint is not that the Indian Constitution recognizes any rigid separation of powers. Plainly, it does not. The reason is that the concentration of   powers in any one organ may, by upsetting that fine balance between the three organs, destroy the fundamental premises of a democratic Government to which we are pledged. Sir Carleton K. Allen says that neither in Montesquieu's analysis nor in Locke's are the Governmental powers conceived as the familiar trinity of  legislative, executive and judicial powers25. Montesquieu's "separation" took the form not of impassable barriers and unalterable frontiers, but of mutual restraints, or of what afterwards came to be known as "checks and balances". The three organs must act in concert, not that their respective functions should not ever touch 26

one another. If this limitation is respected and preserved, " it is impossible for that situation to arise which Locke and Montesquieu regarded as the eclipse of liberty the monopoly, or the disproportionate accumulation, of power in one sphere". In a Federal System which distributes powers between three co-ordinate branches of  Government, though not rigidly, disputes regarding the limits of Constitutional  power have to be resolved by Courts and therefore, as observed by Paton, "the distinction between judicial and other powers may be vital to the maintenance of  the Constitution itself 27. Power is of an encroaching nature, wrote Madison in 'The Federalist'. The encroaching power which the Federalists feared most was the legislative power and that, according to Madison, is the danger of all republics.

24

AIR 1975 SC 2299 Law and Orders, 1965, Sir Carleton K. Allen , p.8 26 Para 688 27 A text book of Jurisprudence (1964), pg 295 25

Conclusion

Given that this project is to highlight the essential features of federalism, I have referred to precedents and research-papers to highlight the same without giving much of my attention to the provisions within the Constitution of India for any inspiration for the same. This, I would like to clarify here. The Indian Constitution is federal in its nature, this, though is not expressly mentioned anywhere in the Constitution of India, the provisions have been given in Part XI of the Indian Constitution (Art. 245- Art. 263), Art. 246 gives rise to Schedule 7 of the Indian Constitution, which clearly states the division of jurisdiction on the basis of subject matter and the division of the states defines the jurisdiction in accordance to territory. But then, the Constitution of India also gives the Union more power than the States, (Art. 368), thus making it a federal government with the traits of an unitary system in it. Thus, India does not have an absolutely unitary form of  Government.

Bibliography

1. KASHYAP SUBHASH C., Constitutional Law of India, Vol. 1, Universal law Publishing Co. Pvt. Ltd. 2. BASU D.D., Commentary on Constitution of India, 8th Ed., Vol. 4, Wadhwa, Nagpur  3. JAIN M.P., Outlines of Indian Legal and Constitutional History, 6th Ed. Lexis Nexis Butterworth’s Wadhwa, Nagpur. 4. Constituent Assembly Debates, VOL.VIII