Updated: Dec 1, 2020
Author: Muskaan Nagpal.
Student, B.B.A.,LL.B., II Year, FIMT School of Law (GGSIPU).
Federalism is not like the set of pattern of coats to wear. It is a clock varying organised pattern befitting each wearer and helping him to the next and superior stages of federalism. India federalism is unique and good for itself. It is not an eye on theoretical, infact the framers of the Indian constitution kept in mind the practical needs of the country. As India is a vast country who has diverse needs. So, one cannot think that the emergency provisions which come into operation on the happening of some contingencies events are the one who modify or destroy the concept of federal system (As in emergency all the powers are under the centre government only the centre rule will prevail). Rather it is a merit of the constitution that it visualises the contingencies when strict pattern of federal principle might destroy the basic assumption on which the constitution was made. This paper discusses about the meaning, nature of federal constitution. Further it discusses about the characteristic, history, merits, demerits of the federal constitution and the arguments made by some scholar that India is not a federal constitution it is quasi federal.
Constitution can be unitary or federal. In unitary constitution the powers are in the hand of the central government and in federal constitution the powers are in the hand of both the centre and the state government. Both are independent in their own spheres. The term “Federalism” is coined from the word ‘Foedus’ which means a pact or covenant that creates a new effective political and constitutional design while no abolishing of the original constituent units.Federal principle is the method of dividing powers, so that general and regional government are co-ordinate and independent in their sphere and are not subordinate to one another.Thus, federal means the power that is distributed between the centre and the state government. They both are interdependent in their sphere. The state is not dependant on centre in normal time and also the centre government do not interfere. It does not matter that the centre government has more power. It will not detract from the federal nature of the constitution.
The chairman of drafting committee observed that “our constitution notwithstanding the many provisions which are contained in it whereby the centre has been given powers to override the provinces nonetheless, is a federal constitution”. The Indian constitution is not only regarded as federal and unitary in strict sense of the term. It is often defined to a Quasi federal in nature also. As it contains more unitary features than federal.
The genesis of federal system in India is present in the Simon report of May 1930. They supported the idea federalism in India. The support for the federalism form of government for India in future is further affirmed in first round table conference of 1930. Then at the second round table also, the Prime minister of Great Britain and Mr. Ramsay Mac Donald was unable to discuss effectively the nature of the federal executive and its relationship with legislature. After two rounds of conference third round was also flopped.
Then the British government issued a white paper in march 1933, which proposed a new Indian constitution with an accountable government in the Provinces and the principle of diarchy at the centre. After that a parliament committee of both houses was set up in 1933 to evaluate and survey the proposal of white paper. Then in 1935 proposed was enacted into law and received an assent of British crown and became the basis for the Government of India act 1935.
3.ESSENTIAL CHARACTERSTICS OF A FEDERAL CONSTITUTION.
i) Written constitution - It is an essential feature for the federal government to work well. It will be difficult to maintain the supremacy of constitution is it is not in written form. As the term and conditions will not be cleared so, to reduce misunderstanding or disagreement there is a need of written constitution. The Constitution of India is written. It specifies the structure, powers, functions of both centre and state government. It also prescribes the limits to avoid misuse of power, misunderstanding and disagreement between the two.
ii) Division of Power- it is an essential feature of federalism. The basis of such distribution of power is that it should be act in favour of national interest.
The Constitution of India has divided the power of centre and the state government in seven schedule. In seven schedule three lists are there in which 1st list contains centre power, 2nd list contains state powers and 3rd list contain both the powers of centre and the state.
iii) Supremacy of constitution- a federal state derives its existence from the constitution, constitution is the supreme law of land. Every power, executive, legislative or judiciary is subordinate to or controlled by the constitution.
The Constitution of India is the supreme law of land. All laws enacted by the centre and the state government should be within the jurisdiction prescribed by the constitution.
iv) Rigidity- constitution which is supreme law of land must be rigid. Rigid constitution does not mean it cannot be amended it means the procedure to amend constitution is difficult. Thus, the power to amend constitution should not be exclusively with either state or centre government. To maintain the division of power between the two levels of government the method of doing amendment is rigid. The amendment can only be done by the joint action of both centre and the state. The Indian constitution possesses all the essential characteristics of a federal constitution. There is division of power between the centre or state government. It establishes dual polity; a system of double government and the constitution of India is supreme and in written form.
4.MERITS AND DEMERITS OF FEDERAL CONSTITUTION.
1) Federal system lead to optimum utilisation of resources as there is division of work between the centre and state government. By this the centre government can focus on international affairs and defences while the state government can focus on local needs of the people.
2) Federal system make government more manageable.
3) Federal system helps in making policies for the minority section as sometimes the central government can overlook but the state or the local government are in close proximity with people in a better position to understand problem.
4) Federal system increases the opportunities for average citizens to participate in government.
1) The federal system makes decision complicated and difficult as national decision can compete with state decision.
2) Federal system leads to overlapping of work. As it creates confusion regarding who is responsible for what.
3) Federal system of government is very expensive as more people to be appointed both at the centre and state level than necessary.
4)Federal system promotes regional inequalities. Natural resources, opportunities different from region to region. So rich states can offer more opportunities than the poor states.
The Indian constitution is not only regarded as federal and unitary in strict sense of the term. It is often defined to a Quasi federal in nature also. As it contains more unitary features than federal. In the following matters, it is pointed out that Indian constitution modify the federal principle.
i)Appointment of Governor- the governor of the state are appointed by the president under Article 155, 156 and answerable to him. The governor has to take assent of the president for certain state laws.
ii)Parliament power to legislate in the national interest- under article 249, parliament has the power to make law with respect to every matter enumerated in the state list. If Rajya sabha passes a revolution by 2/3 majority that it is necessary in the national interest.
iii)Parliament power to form new states and alter boundaries of existing states- under Article 3 parliament has the power to form new states or it may increase and decrease the area of state and it may alter the boundaries or name of any state. Thus the existence of the state depends upon the union government.
iv)Emergency Provision-when proclamation of emergency is made, the normal distribution of powers between centre and states undergo a vital change. Parliament is empowered to make laws with respect to any matter enumerated in state list. The centre is empowered to give direction to any state as to manner in which the state’s executive power is to be exercised.
I) State of West Bengal V. Union of India.
In this case it was observed that the constitution of India is not truly federal in nature. The distribution of power of centre and the state government is only concerned with the regulation of local problems vested in the states and the residue, especially tends to maintain the economic industrial and commercial unity of the country.
ii) State of Karnataka V. Union of India.
In this case it was observed that the Indian constitution is not federal in nature it is Quasi-Federal in nature. Even though there is distribution of power between the centre and the state but at the end the state is there only on the will of centre.
iii) Kesavananda Bharti V. State of Kerala.
In this case it was observed by some of the judges that federalism is a part of basic structure. So it cannot be changed.
iv) S.R. Bommai V. Union of India.
In this case there are different opinion of different judges on the federal constitution of India
1) Justice Ahmadi- as there is no mention of the like ‘federal’ so he declared it to be Quasi-Federal.
2) Justice Sawant and Kuldip Singh – it is an essential feature of constitution.
3) Justice Ramaswamy : he declared India to be an ‘Organic Federation’ designed to suit the needs of parliament.
The Constitution of India is neither purely federal nor it is purely unitary it is a combination of both. It is a union of composite state of a novel type. It enshrines the principle that inspite of federalism, the national interest ought to be paramount. Thus, the Indian constitution is mainly federal with unique safeguard for enforcing national interest unity and growth.
The framers of Indian constitution took note of these tendencies and kept in mind the practical need of the country. As it is not made on an eye on theory but also consider practical things.
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