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Nature of the Federal System I

➢ “Article 1(1) “ – ‘India that is Bharat, shall be a Union of States’

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Dr. Ambedkar – “Although its Constitution maybe Federal in
structure, the word ‘Union’ is used to provide following
advantages:
1. Indian federation is not the result of an agreement by the
units
2. The component units have no freedom to secede from it

➢ Different types of federal constitutions in the modern


world
 No agreed definition of a Federal State
 Always compared with the model of United States (1787)
 Only the Constitutions of Switzerland and Australia confirm
to United States model closely
 So the questions of decisions are:
 Whether unitary or federal
 Whether basically unitary or federal
 Federal with unitary characteristics
 How many federal features

➢ Indian constitution basically Federal with Unitary


features

➢ Essential features of federal policy


1. Dual government
2. Distribution of powers
3. Supremacy of the Constitution
4. Authority of courts
Above features existing in Indian Constitution

➢ Peculiar features of Indian Federalism


1. Mode of Formation
 American type –> Voluntary agreement between a
number of Sovereign and Independent States
 Canadian type –> Not formed out of separate
independent existence
 India –> Provincial governments were virtually the
agents of Central Government deriving powers of
delegation from centre
 Government of India Act, 1935 – set up a federal
system
Similar to that of Canada – “By creating autonomous
units and combining them to a Federation by one and
the same act”

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 Like in America, there is no agreement of sovereign
States
 Our constitution is the result of Constituent Assembly
represented by the people of India
 Progress has been from unitary to federal
 During British rule, they lacked ‘Federal Sentiment’ and
with lapse of British crown, the States acceded to
dominion of India
 Credit to the Constitution makers – gave equality of
status to the provinces

2. Position of States in Federation


 USA –> Federation of Sovereign States and therefore
reluctant to give up their sovereignty –> State rights
 India –> No such need as they were not Sovereign
States
a) USA –> residuary powers vest in States
India –> residuary powers vest in Union (Canada)
b) USA –> drew up constitution of national
government
India –> Constitution of State also except Jammu
and Kashmir
c) USA –> amendment subject to State
India –> States need not be consulted
d) USA and Australia –> lack of central control over
State legislation and administration
India and Canada –> Union control over State
legislature and executive
Eg. Governor of State appointed by President
State legislation can be vetoed by President
e) The American Federation described by its SC as
follows:
“An indestructible Union composed of
indestructible States”
 Results in two propositions
i. Union can’t be destroyed by any State
seceding from it
 Accepted by Indian constitution
ii. United States Union has no power to
redraw its States
 India has deviated – Article 4(2)
 Indian States not indestructible
 States Reorganisation Act, 1956 –
number reduced from 27 to 14
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 Subsequently formation of new
States:
Gujarat
Nagaland
Haryana
Meghalaya
Himachal Pradesh
Manipur
Tripura
f) USA –> equality of State representation in Union
India –> not there
g) India –> Innovative system
Inclusion of Sikkim as Associate State
initially

3. Mode of Polity
 In USA:
a) Dual polity
b) Dual citizenship Not there in India
c) Double set of officials
d) Double system of courts
– In addition, in India,
e) Machinery of election, accounts and audit similarity
integrated
f) Emergency Powers
g) Federal system exists to give unitary strength:
 Exclusive powers to Centre to legislate
 Centre to give directions to State Government
(Articles 256-257) and power to supercede
(Article 365)
 President’s power to Union of State executive
and legislative powers (Article 356)

➢ A critique of the federal system


 Prof Wheare
“A system of Government which is Quasi Federal... a
unitary State with subsidiary federal features rather than a
federal State with subsidiary federal features”

 Prof. Alexandrowicz
“The Constitution of India is neither purely federal nor
purely unitary but is a combination of both. It is a Union or
composite State of a novel type. It enshrines the principle

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that in spite of Federalism the nation interest ought to be
paramount”

 “Federation with strong centralising tendency”

 Prof Wheare
“That however, is what appears on paper only. It remains
to be seen whether in actual practise the federal features
entrench or strengthen themselves as they have in Canada,
or whether the strong trend towards centralisation which is
a feature of most Western Governments. In a world of
crisis, will compel these federal aspects of Constitution to
wither away”

 Reasons for ‘withering away of Federalism’


a. Overwhelming financial power of Union
b. Comprehensive sweep of Union Planning Commission
In defence of above
c. Uniform development of country as a whole
d. Strengthens national government

 ‘Co-operative Fedaralism’ – Graville Austin

 Resulted in resolving conflict between:


a. Division of powers
b. National Integration
That is, has been a boon to keep Indian together under
separatists’ forces of
Communalism
Linguism
Scramble for power

➢ Survival of Federalism in India


 Co-existence of various political philosophies in India
Eg. Communist government in Kerala
United Front in West Bengal
 New regions demanding Statehood
Eg. Meghalaya
Manipur
Nagaland
Tripura
 Strong agitation for greater financial power for States

➢ Conclusion
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“The proper assessment of the federal system introduced by
our constitution is that it introduces a system which is to
normally work as a federal system, but there are provisions for
converting it into a unitary or quasi-federal system under
specified exceptional circumstances”

I. Creation of new States


Article 1 - Name and territory of Union
➢ States – 25
➢ Union territories – 7
➢ Any territory acquired
➢ India has no right to acquire territory over which a
sovereign State is exercising sovereignty
Reference Berubari Union A. 1960SC845(856)

Article 2 - Admission or establishment of new States


➢ Eg. Sikkim

Article 3 - Formation of new States and alteration of areas,


boundaries of names of existing States
➢ At behest of President
➢ Implies adjustment of boundaries
➢ Does not include cession of territory to foreign State

Article 4 - Laws made under Articles 2 and 3 to provide for the


amendment of the First and Fourth Schedules and
Supplemental, Incidental and Consequential
matters

II. Allocation and Share of Resources – Distribution of


Grants in Aid
➢ Part XII – distribution of revenues between Union and the
States
Article 268 – duties levied by the Union but collected
and appropriated by the States
Article 269 – taxes levied and collected by the Union
assigned to the States
Article 270 – taxes levied and collected by the Union
and distributed between the Union and
the State
Article 271 – surcharge on certain duties and taxes for
purposes of the Union

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Article 272 – taxes which are levied and collected by
the Union and maybe distributed
between the Union and the States
Article 273 – grants in lieu of export duty on jute and
jute products
Article 274 – prior recommendation of president
required to bills affecting taxation in
which States are interested
Article 275 – grants from Union to certain States
Article 276 – taxes on professions, trades, calling and
employments
Article 280 – Finance Commission
Article 282 – Expenditure defrayable by the Union or a
State out of its revenues
Article 266 – Consolidated Funds and Public Accounts
of India and of the States
Article 267 – Contingency fund
II B. Inter State disputes on resources
➢ Part XII – Coordination between States
Disputes related to waters
Article 263 – Provision with respect to an interstate
council
Article 292 – Adjudication of disputes relating to
waters of inter state rivers and river
valleys
IV. Centre’s responsibility and internal disturbance within States
➢ Part XIII – Emergency Provision
Article 358 - Duty of the Union to protect States
against external aggression and internal
disturbance
Article 356 – Provision in case of failure of
constitutional machinery in States
Article 365 – Effect of failure to comply with, or to
give effect to directions given by the
Union
VII
A. Special Status of certain States
➢ Part XXI – temporary, transitional and special provisions

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Article 370 - Temporary provision with respect to
the State of Jammu and Kashmir
Article 371 - Special provision with respect of
the State of Maharashtra and Gujarat
B.
Article 339 - Control of the Union over the
administration of schedule areas and the
welfare of scheduled tribes

Definition of State
Article 152 – In this part, unless the context otherwise requires
the expression ‘State’ does not include the State of
Jammu and Kashmir