Essentials of Federalism

Submitted to

Dr. Asad Malik

Faculty of Law

Jamia Millia Islamia

By

Tushar Gupta

3rd 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
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.

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

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.

2 Chelliah, 1991
3 Article 201
  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

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

4 Article 356
5 1984 SCR (3) 942
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.

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
of the members of the Constituent Assembly (CA), formed in December 19466.
Writing of the Constitution against the backdrop of the partition of the country, the
accompanying communal frenzy and integration of 565-odd princely states with

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

In Ganga Ram Moolchandani v. State of Rajasthan 7 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 Committee8 expressed a
similar opinion.

In the Kesavananda Bharati vs. state of Kerala9 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 India10 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.

7 2001( 3 )SCR 992

8 AIR 2002 SC 852
9 AIR 1973 SC 1461
10 AIR 1978 SC 597
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 India11, , 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

11 1978 SCR (1) 1

be apparent also from a perusal of the judgment of this Court in Shamsher Singh v.
State of Punjab12 ."13

In the decision referred in S.R. Bommai's case14, 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
or not"15, 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

12 1975 SCR (1) 814

13 Para 51
14 (1994) SCC 1
15 Federal Government, 1963, pg 12
own sphere is co-ordinate, with the other independent as of them, and if so is that
Government federal?16"

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 dominions17. 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
federal or State legislation18. Thus the dominant characteristic of the British
Constitution cannot be claimed by a Federal Constitution like ours."

16 page 33
17 The Law of the Constitution by A.V. Dicey, p.XXXIV
18 The Law of Constitution by A.V. Dicey, p.LXXVII
In State of M.P. v. Bharath Singh19 , 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 not20. 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 power 21. Even A.V. Dicey22, 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 Kerala23, the Apex Court no doubt held that Federalism is the basic

19 AIR 1967 SC 1170

20 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
structure of the Constitution. In Smt.Indira Nehru Gandhi v. Shri Raj Narain 24, 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
one another. If this limitation is respected and preserved, " 26it 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 itself27. 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

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