DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY,

LUCKNOW
2018-19

Project On
“Essentials of Federalism”

For continuous evaluation in the subject of-

Indian Federalism
Semester VIII
[Academic Year 2018- 2019]

SUBMITTED TO: SUBMITTED BY:

Dr. CM Jariwala Ashish Amar Tiwari
Dean of Academic Sec-A, Enroll No-150101030

Dr. RMLNLU Lucknow B.A.LLB (Hons.)

 ACKNOWLEDGEMENT

My Project in the subject of Indian Federalism on the topic Essentials of Federalism has been
given shape and success by the efforts of many people who have contributed in its completion.

I would like to express my humble thanks to Dr. CM Jariwala Sir, my subject teacher, under
whose supervision the project could have been completed and without whose teachings and
insights on the subject, the project could not have been fructified.

I also extend my heartiest thanks to my friends for their insights into the concerned project and
helping me with everything I asked them. The role of the Library Department is noteworthy. All
the staff members helped me generously in getting the materials and information I needed to
complete the project.

Ashish Amar Tiwari

Contents

Introduction

Federalism in the Indian Constitution

The basic features of a federal government

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 and a unitary system of Government.”1

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.

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

1
A. V. Dicey – The Law of the Constitution, p. 151, 155 (10th Edn. 1959)
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 unitarist or quasi-

federal2 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;
 Requirement of governor's assent for laws passed by state assemblies and of president's
assent for state enactments in certain matters3.
 Power to parliament with qualifying majority to redraw the boundaries of a state, divide
it, and create new ones.
 Power to the centre to take over the administration of a state in certain circumstances and
promulgate 'President's Rule'4.

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

2
Chelliah, 1991
3
Article 201
4
Article 356
4. Domination of the constitution – neither of center nor state has power to nullify the
constitution

5. An independent body and unprejudiced authority

In Pradeep Jain v. Union of India5, 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 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 each-other, then the decision of the Union shall be
considered to have more weight than that of the State.

5
1984 SCR (3) 942
Federal structure in India

In Ganga Ram Moolchandani v. State of Rajasthan6 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 apex Court in ITC LTD v Agricultural
Produce Market Committee7 expressed a similar opinion.

In the Kesavananda Bharati vs. state of Kerala8 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 India9 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 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

6
2001( 3 )SCR 992
7
AIR 2002 SC 852
8
AIR 1973 SC 1461
9
AIR 1978 SC 597
is Bharat, shall be a Union of States. Federalism and nature of Indian Federalism was well
discussed in State of Rajasthan v. Union of India10, , 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 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. State of
Punjab11 ."12

In the decision referred in S.R. Bommai's case13, 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

10
1978 SCR (1) 1
11
1975 SCR (1) 814
12
Para 51
13
(1994) SCC 1
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 or not"14, and at he stated that "the systems of Government embody
predominantly 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 Government
federal?15"

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 dominions16. 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

14
Federal Government, 1963, pg 12
15
page 33
16
The Law of the Constitution by A.V. Dicey, p.XXXIV
Constitution by the ordinary process of federal or State legislation17. Thus the dominant
characteristic of the British Constitution cannot be claimed by a Federal Constitution like ours."

In State of M.P. v. Bharath Singh18 , 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 between co-ordinate independent
authority or not19. In accordance to H. M. Servai, the learned author expressed the opinion that
the most important feature of Federal Constitution is the distribution of legislative power20. Even
A.V. Dicey21, 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. State of Kerala22,
the Apex Court no doubt held that Federalism is the basic structure of the Constitution. In
Smt.Indira Nehru Gandhi v. Shri Raj Narain23, it was held by the Apex Court:

17
The Law of Constitution by A.V. Dicey, p.LXXVII
18
AIR 1967 SC 1170
19
Federal Government, 1963 Edition, Prof. K.C. Wheare
20
"Constitutional Law of India" 4th Edition, Silver Jubilee Edition, H.M. Servai
21
Introduction to the Study of the Law of Constitution, A. V. Dicey
22
AIR 1973 SC 1461
23
AIR 1975 SC 2299
"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 powers24. 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 one another. If this limitation is respected
and preserved, "25it 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 itself26. 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.

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

24
Law and Orders, 1965, Sir Carleton K. Allen , p.8
25
Para 688
26
A text book of Jurisprudence (1964), pg 295
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