IS INDIAN CONSTITUTION FEDERAL IN NATURE?

This article is written by Vandanaof 2^nd year of Lloyd Law College, Greater Noida. Currently, an intern under Legal Vidhiya.

ABSTRACT

All the countries in the world have one of the two types of government followed by them in their constitution. These two types of government are ‘Federal government’ and ‘Unitary government’. While in the constitution of many countries it is explicitly mentioned, the Indian constitution did not ever used the term federation or Unitary for the constitution of India. It is visible from the provisions of the Indian constitution; it has some features of strong federation and some feature of unitary government. K.C. Where, an Australian academician described Indian state as a ‘Quasi–Federal state’¹.MorrisJonesdescribed Indian federalism as ‘Co-operative Federalism’². These names given to Indian government is interesting as made by keen observers of law but these statements are not the last source to judge about if the Indian constitution is federal in nature or not. In this context one can refer to Indian constitution’s Article.1, where in it is clearly written that ‘India that is Bharat shall be Union of states’. Whereas this statement shows that the union of India is not the result of agreement between states but it does not give a clear indication towards India having a unitary constitution. Supreme Court of India being custodian of Indian constitution, this question was thus answered by Supreme Court in many Judgements throughout all these years.

Keywords– Constitution of the India, Federalism, Indian federation, Unitary Biased, Features of a federation, residuary powers, parliament of India.

INTRODUCTION

The constitution of any country comes under any of these two categories based on the kind of government in the country. These two categories are: –

1. Unitary form of government,
2. Federal government.

A unitary form of government is one where all the powers of government are completely vested in the central government of the nation. A federal government is the government where power of governance is divided between state and the central government both³. This division of power is given in the constitution of the country. Countries like China, Spain, Japan, Norway, Sweden, Belgium follows unitary form of government where as Australia, US, Brazil, Canada follows federal model of governance. In a federal system of government the national government of the country is known as the central government or union government. And the government of the states is known as state government.

The framers of Indian constitution did avoid to mention a clear name for the type of governance system India will follow. The constitution of India has some features inspired from Canadian constitution, as it establishes a strong centre but it is not like all the powers of governance is given to union government only. Schedule.7 of Indian constitution framed by the constituent assembly clearly divided the power of governance in three lists namely, Union list, State list and concurrent list. This provision shows federal qualities of Indian constitution. The power to make laws on residuary matters is given to parliament in article.248 of Indian constitution, and not so the state government shows unitary tilt of constitution of India.

By going through all the provisions of Indian constitution one can clearly say that the constitution of India does not explicitly defines, if it is unitary in nature or federal in structure. But the constitution of India is known as federal in nature with unitary tilt. No any country in the world has same governance system as India. This confusion is cleared by the SC in many cases like Satpal V. Union Of India, HS Dhillon V. Union Of India, S.R. Bomai etc. Though the constitution of India has Canada inspired federation not American form of federation it still differs a lot from these two constitutions.

OBJECTIVE

Through this article the author is trying to provide an extensive study of articles, constitution and judgements given by Supreme Court of India to describe the actual status of Indian constitution. Whether it is federal in nature of not? And if it is a federal constitution, is it a complete federation and where is it written or where is it described. In this article I am doing a brief analysis of some article, textbooks and case laws.

THE FEDERAL FEATURES OF INDIAN CONSTITUTION

The constitution of India has some clear features of a federal government,

1. Dual Polity– The constitution of India establishes dual government, central government and state government. These two governments are given their sovereign powers to make laws in accordance of subjects given under the schedule.7 list entries. Power to make laws on union list entries are mentioned in schedule.7 list 1, to the centre government of the country. The power to make laws in accordance with entries of list.2 is given to state government.
2. Bicameralism – The constitution of India has given bicameralism structure of government. It has established Upper house in parliament and Lower house in Parliament. The lower house represents People of India as a whole and Upper house of parliament represents the people of states of India. This is an arrangement to maintain the equilibrium of power between state and union government. Whereas the Lower house is elected directly by the people of country the upper house is elected by indirectly by the representatives of people from states.
3. Division of Powers – The schedule.7 of Indian constitution, divides the power to legislate between centre and state through three lists. Namely, Union list enumerates matter to be legislated by union government. State list contains matters on which state has power to make laws. And thirdly concurrent list, the topics given in this list can be legislated by both state and centre government.
4. Independent Judiciary- The constitution of India establishes an Integrated and independent judiciary. The Supreme Court of India has two purpose one to protect the supremacy of the constitution and second to settle dispute between centre and state. This helps in keeping checks and balances on the central government and thus helps in maintaining the power of states and people.

THE UNITARY FEATURES OF INDIAN CONSTITUTION

 The constitution of India besides containing these federal features do has some unitary features,

1. Strong centre tendencies – The division of powers though, made between centre and state government. The powers are strongly in favor of centre at times. The union list contains more number of matters on which the central government can make laws. All the important matters are given in the union list. And, the central government under article. 254 have overriding powers over the concurrent list matters if the law is made by both state and central government. This clearly shows that if no explicitly impliedly the central government has a bigger say in legislative matters.
2. State is indestructible – Unlike other federations the states on India does not have power to succeed from Union of India. On the other hand the parliament can change the area of a state, by just a simple majority. The Indian federation is an indestructible union of destructible states unlike USA which is an indestructible union of indestructible states⁴. This shows once the states are part of union, they cannot succeed but are subject to alterations on the choice of the state.
3. Single Citizenship– Usually the federation has dual citizenship like in USA but India has single citizenship provisions in part 2 of Indian constitution. The citizenship a person gets is only single citizenship of whole of India and not of states differently. Countries like USA, Australia has dual citizenship provisions.
4. Single Constitution – The constitution of India is single constitution which is applicable in both centre and state. This is also one of the main reasons that the constitution of India is so lengthy. The provisions for governance of both, centre and state are given under single constitution of India.
5. Parliamentary Authority over state list – Even in limited sphere the parliament of India does have an authority over the state lists matters. Under Article .253, 254,257. Given are the provisions where the Parliament of India can legislate over even the matters enumerated in the state list.
6. Appointment of Governor – The power to appoint governor for the state is given to the President of India. He holds office during the pleasure of president and he acts as agent of centre and he maintains a communication between centre and state.  The American federations on the contrary provides for election of the Governor of the state.

From the above, it is clearly visible that the constitution of India is neither completely federal constitution like USA and it is neither completely unitary in nature like Japan.

According to K. Santhenam, the reason for centre having more powers and say in legislation making process is the centre dominate the financial sphere and the states has to be dependent on the centre for all their financial needs.⁵

Alexandrowicz stated that India is the case of Sui genesis, which means unique in character.⁶

On the nature of Indian Constitution, DR. B.R. Ambedkar said, “The constitution is a federal constitution as much as it establishes a dual polity. The Union is not a league of states, united in a loose relationship, nor are states agencies of centre deriving powers from it. Both the union and state are established by constitution, both derives their respective authority from constitution”.⁷

The Challenges Before Indian Constitution

Once the framing of constitution started by the constituent assembly, they faced many challenges and some of those challenges are discussed below,

• In India there were many languages, religions and cultures people use to follow and was integral part of their life. One of the biggest challenges was to frame a constitution which will not discriminate and will allow people to live together and maintain peace in society. To overcome this challenge some fundamental rights were introduced in the constitution of India where the people of India were given right to equality, freedom, religion and right against untouchability etc. These provisions were introduced to make sure each person living in independent India don’t have to go through any hardship and don’t have to face any discrimination at least from the supreme law of the land.
• The division of rights between state and centre, was also a challenge faced by the constitution makers. To resolve this issue they introduced division of powers to legislate between centre and state individually and also collectively. The constituent assembly introduced the schedule.7 under which by three lists they differentiated the matters to be legislated by the centre and state. They also decided that in any case of a dispute between centre and state or between two states or between two or more states and centre the SC would be the court of original jurisdiction to avoid any biasness that can hamper the process of justice if the matter is to be decided by the High Courts.
• What should be the National language? Hindi/English/Sanskrit or any other language was also a big question in front of the Constituent assembly. During the sessions of the assembly there were arguments about what language to be selected as a national language, congress was in favor of Hindustani language at the instance of mahatma Gandhi. But after partition of India and assassination of Mahatma Gandhi things changed and Hindustani was not introduced even in the schedule 8. There was also a heated argument about what kind of numerals to be adopted as official language. The constituent assembly adopted in the last Hindi written in Devnagari script as the official language and international numerals were accepted as language on numbers. With these other significant languages were also introduced in the schedule.8 of the constitution.

The Supreme Court on Indian Federalism                   

As nowhere in the Indian constitution given the true nature of Indian constitution as a federation but the structure followed and description of many jurists describe Indian constitution one of a kind. The describe Indian constitution as Federal in nature but unitary in structure. Time and again Supreme Court has interpreted the structure of Indian federalism in various cases,

• Sat pal V. Union Of India⁸ – In this case the Supreme Court described the Constitution of as a Quasi–federal constitution for the very first time. This is the case where SC held that Indian constitution is a combination of federal structure with unitary features.
• H.S. Dhillon V. Union Of India⁹ – In this case the question which arose in front of SC was whether or not parliament can enact the laws on wealth-tax Act, which is levied a tax on person’s holdings in agricultural land. It was held that if any subject does not fall under list second of the constitution schedule 7, the parliament is allowed to use its residuary powers to enact legislation on matters whether it falls under list 1 or not. It is clearly seen in this case that whereas the constitution of India gives dominant role to state in matters of taxation of agriculture income and property, in this case a taxation law of national government on agricultural property was upheld. This judgement describes the centre- state legislative relationship.
• Attorney general for India V. Amratlal Prajivandas¹⁰ – In this case SC held that Parliament holds dominant position when it comes to law making power.
• Keshvananda Bharti V. State of Kerela¹¹ – In this case SC by giving Basic structure doctrine said that Parliament cannot exercise unlimited sovereignty. This case overruled the Golaknath¹² case. In this case SC has tried to maintain an equilibrium between powers exercised between the centre and state government.13
• S.R. Bomai V. Union Of India¹³– In this landmark judgement the Supreme Court of India discussed at length the provisions of Article.356 of Indian constitution. This case laid down the centre state relationship guideline with respect to article.356 of Indian constitution. This Judgement cubed down the blatant use of article.356 which is president rule in the state. In this case the Supreme Court held that constitution is federal in nature and it is its basic structure.
• State of Bengal V. Union Of India¹⁴ – In this case the issue involved was the exercise of sovereign powers by the Indian states and power of parliament to enact a law for compulsory acquisition by the union of land. In this case the Supreme Court held that Indian constitution did not propound a principle of absolute federalism.

CONCLUSION

From the decision of constituent assembly to not explicitly mention the constitution of India as a federal or unitary constitution to Supreme Court of India interpreting in many judgements that the power to be exercised by centre and state is neither in unitary or federal manner. In my opinion it is a Quasi–federal constitution. As from having many features of both the federal form of constitution to unitary form of constitution, Indian constitution is unique in its own sense and is a perfect blend of both unitary and federal structure. It is a constitution not bound by any particulars of strict federal or unitary features yet it manages to do what is best for the people of India.

REFERENCES

1) Legal Service India, https://www.legalservicesindia.com/article/2245/Quasi-Federal-Nature-of-Indian-Constitution.html, 18/09/2023.

2) Jstor, https://www.jstor.org/stable/26575604, 18/09/2023.

3) M Laxmikant, Indian Polity Mc Graw Hill 13.1, 2021.

4) M Laxmikant, Indian Polity Mc Graw Hill 13.4, 2021.        

5) M Laxmikant, Indian Polity Mc Graw Hill 13.5, 2021.

6) C.H. Alexandrowicz, The constitutional development in India, 1953.

7) M Laxmikant, Indian Polity Mc Graw Hill 13.6, 2021.

8) Sat Pal V. Union Of India, 1997.

9) H.S. Dhillon V. union Of India, 1971 INSC 292

10) Attorney General Of India V. Amratlal Pranjivandas, 1994 AIR 2179

11)  Keshavananda Bharti Vs. State Of Kerela, AIR 1973 SC 1461

12) Golaknath V. State of Punjab, 1967 AIR 1643.

13) S.R. Bomai V. Union Of India, 1994 2 SCR 644.

14) State of West Bengal V. Union Of India, 1963 AIR 1241.