This article is written by Param Jeet of Himachal Pradesh National Law University, an intern under Legal Vidhiya
Is Indian Constitution Federal in Nature? Talking about the nature of Indian Constitution, it is always in debate as different people have different opinion. Many jurists like Kenneth C. Wheare said that India is quasi-federal because it has some features of the federal system and some of unitary constitutions. However, according to the framers of the constitution, it is federal in nature. Even Dr. B. R. Ambedkar defined it as a federal constitution, although the center has some powers to override the provinces.
An important point, here, is to note that the Indian Constitution has not declared India as a federation. On the other hand, Article 1 of the Constitution calls it “Union of States” which means, India is an association, made up of various states which are integral to it. Here, states cannot be separated from the Union. They do not have the right to break away from the union. In a true federation, the following units or states have the freedom to come out of the Union.
India is not a true federation. Constitution of India combines the characteristics of both federal government and the unitary government which can also be called non-federal features. Because of this, India is considered as a quasi-federal state. The Supreme Court of India also describes Indian Constitution as “a federal structure with a strong bias towards the Center”. Let us now discuss the federal and unitary or non-federal features of the Indian Constitution.
What are the federal features of Indian Constitution?
Federal features of Indian Constitution are as follows: –
- Two sets of government: – There are two sets of government in India- Central Government and State Government. The central government works for the entire country and the state governments oversee the states. The areas of activity of the two governments are different.
- Division of powers: – The Constitution of India has divided the powers between the Central Government and the State Governments. The Seventh Schedule to the Constitution contains three lists of subjects that describe how the power is divided between two sets of government. The two governments have their own separate powers and responsibilities.
- Written Constitution: – The Constitution of India is written. Each provision of the constitution is clearly written and discussed in detail. It is considered to be one of the longest constitutions in the world with 395 articles 22 parts and 12 schedules. It originally consisted of 395 articles which have now increased to 448 articles after 105 amendments, as of August 2021.
- Supremacy of the Constitution: – The constitution is considered the supreme law of the land. The Constitution is above all the citizens and organizations within the territory of India and must be loyal to the Constitution.
- Supreme Judiciary: – The Supreme Court of India is the highest court of justice in India. It has been given the responsibility to interpret the provisions of the Constitution. It is considered the protector of the constitution.
- Bi-Cameral law: – In India, the legislature is bi-cameral. The Indian Parliament, that is, the legislature, it has two houses- the Lok Sabha and the Rajya Sabha. The Rajya Sabha is the upper house of the parliament representing the state, while the Lok Sabha is the lower house which represents the people in general.
Why Indian Constitution is Quasi-Federal?
Thus, we find that although India has adopted the federal government, our constitution has various characteristics that are non-federal or unitary. The framers of the Constitution wanted to form a strong central government and, therefore, did everything possible to make the central government more powerful than the state governments. There are many reasons for this. India is a vast country inhabited by people of different religions, languages, castes and culture, etc.
To maintain unity and integrity among them, a strong center was deemed necessary. Again, a strong center with adequate resources and authority was necessary for a modern welfare state to assume the huge responsibility and economic development of a newly independent country. Furthermore, to establish India on international forums, the central government needed to be powerful.
1. Kuldip Nair vs. Union of India, AIR 2006 SC 3127
Facts of the case: – In this case, the issue was that a proper residence is required before 2003 that was removed in 2003 by which it was argued that the amendment violated the federal character of the Indian Constitution.
Judgement of the case: – In this case, the Supreme Court held that a specific type of federalism or American type of model cannot be a fragment of the basic structure of the Indian Constitution. Indian federalism is one of a kind in nature and custom according to the special needs of the country.
2. State of West Bengal vs. Union of India1963 AIR 1241
Facts of the case: – This case is a suit filed by the State of West Bengal against the Union of India for a declaration that Parliament is not competent to authorize the Central Government to acquire rights over a land and to acquire land, which are vested in the State.
Judgement of the case: – The Supreme Court held that the decentralization of authority in India was primarily to facilitate the smooth governance of a large country and, therefore, it also contained many central features.
3. S.R. Bommai vs. Union of India, AIR 2017 SC 2734
Facts of the case: – The situation had worsened in Karnataka in April 1919 and led to the state’s Emergency/Art 356 (1). This declaration was then ratified by Parliament. The situation due to the state’s emergency was that in 1988, S.R. Bommai, a person from the Janata Party, formed the government, but later joined the Lok Dal which were in collision of the Janata Party. But there were differences among party members soon leading to the fall of the government. Therefore the President had to declare a state of emergency. This declaration was challenged through writ petition but the High Court rejected the petition. Therefore, appeal to the Supreme Court.
Judgement of the case: – Proclamation of Emergency U/Art 356 is subject to judicial review. Relevance and such proclamation may be required by the court concerned if it is found to be incorrect. The power of the President under 356 is subject to restriction. The formation of opinion is not based on the report of the governor and only on satisfaction. The Supreme Court struck down the proclamation, even though the two Houses of Parliament were the same on the basis of malafide.
Parliamentary & State Legislative Privileges under Indian Constitution
Article 105 and Article 194 grant privileges or advantages to the members of the parliament so that they can perform their duties or can function properly without any hindrances. Such privileges are granted as they are needed for democratic functioning. These powers, privileges and immunities should be defined by the law from time-to-time. These privileges are considered as special provisions and have an overriding effect in conflict.
Privileges mentioned in the constitution
Freedom of speech and publication under parliamentary authority
This is defined under Article 105(1) and clause (2). It gives the members of parliament freedom of speech under clause (1) and provides under Article 105(2) that no member of parliament will be liable in any proceedings before any Court for anything said or any vote given by him in the Parliament or any committee thereof. Also, no person will be held liable for any publication of any report, paper, votes or proceedings if the publication is made by the parliament or any authority under it.The same provisions are stated under Article 194, in that members of the legislature of a state is referred instead of members of parliament.
Both the Articles, Article 19(1)(a) and Article 105 of the Constitution talks about freedom of speech. Article 105 applies to the members of parliament not subjected to any reasonable restriction. Article19(1)(a) applies to citizens but are subject to reasonable restrictions.
Article 105 is an absolute privilege given to the members of the parliament but this privilege can be used in the premises of the parliament and not outside the parliament.
If any statement or anything is published outside the parliament by any member and if that is reasonably restricted under freedom of speech then that published article or statement will be considered as defamatory.
The appellant is an elected member of the West Bengal Legislative Assembly. The appellant had an intention to ask certain questions in the assembly and therefore he gave the notice for the same. The questions to be asked in the assembly were refused in compliance with the rules of procedure for the conduct of the business in the assembly. But the appellant published those questions he was not allowed to ask in the assembly in a local newspaper called JANAMAT.
The first respondent, who was then functioning as a Sub-Divisional Magistrate and because of whose conduct the matter of questions arose, filed a complaint against the appellant and two others, the editor and the printer and publisher of those questions.
The petition contained the fact that the appellant had made slanderous accusations against him with an intention to be read by the members of the public. These accusations were false and the appellant published them, having an intention of harming the reputation of the complainant. He also alleged that publishing such false questions in the journal first requires prior permission by the government in instituting the legal proceeding against the public servant.
In this case, it was held that the provisions of Article 194 even though disallowed by the speaker were a part of the proceedings of the house and publication for the same will not attract any sections of the Indian Penal Code.
He will not be prosecuted, as Article 194(1) not only gives them freedom of speech but also give the right to ask questions and publish them in the press.
The facts of the case are – some of the MP’s received bribes to vote against the motion of no-confidence against the Prime Minister P.V. Narsimha Rao. He was charged under IPC and Prevention of Corruption Act on the grounds that he bribed some MPs to vote against the no-confidence motion when he was serving as the Prime Minister. In this case, the question arose that under Article 105(2) does any member of parliament have any immunity to protect himself in criminal proceedings against him?
It was held by the majority of the Court that under Article 105(2) the members of the parliament will get immunity and thus, the activity of taking bribe by the MP’s will get immunity despite anything said by them or any vote given by them in the Parliament. The Court further explained that the word “anything” here will be interpreted as a wider term. The Court interpreted the term “anything” in a wider sense and did not prosecute P.V. Narsimha Rao.
Power to make rules
The Parliament has the power, which is given by the Constitution of India, to make its own rules but this power is subjected to the provisions of the Constitution. Though it can make its own rules, the rules should not be made for its own benefit. If they make any rule which infringes any provision of the Constitution then it would be held as void.
For the effective working of both the houses of parliament and their members, internal independence should exist without the interference of any outside party or person. The houses can deal with their respective issues internally without any interference of the statutory authority.
The Indian Judiciary might not interfere with the proceedings or issues dealt in the parliament or by the members in the course of their business. Nevertheless, it may interfere in the proceedings if it is found to be illegal or unconstitutional.
Freedom from being arrested
The member of parliament cannot be arrested 40 days before and 40 days after the session of the house. If in any case a member of Parliament is arrested within this period, the concerned person should be released in order to attend the session freely.
Right to exclude strangers from its proceedings and hold secret sessions
The object of including this right was to exclude any chances of daunting or threatening any of the members. The strangers may attempt to interrupt the sessions.
Right to prohibit the publication of its reporters and proceedings
The right has been granted to remove or delete any part of the proceedings took place in the house.
Right to regulate internal proceedings
The House has the right to regulate its own internal proceedings and also has the right to call for the session of the Legislative assembly. But it does not have any authority in interrupting the proceedings by directing the speaker of the assembly.
Right to punish members or outsiders for contempt
This right has been given to every house of the Parliament. If any of its members or maybe non-members commit contempt or breach any of the privileges given to him/her, the houses may punish the person.
The houses have the right to punish any person for any contempt made against the houses in the present or in the past.
Privileges and fundamental rights
Part III of the Constitution contains fundamental rights wherein Article 19(1)(a) grants freedom of speech to the citizens. It is subjected to reasonable restrictions. These restrictions are:-
- Sovereignty and integrity of India should be maintained,
- Security of the states should be maintained,
- Public order should not be disturbed,
- Decency and morality should be maintained,
- Defamation should be avoided,
- Incitement to an offence should be avoided,
- Contempt of court should be avoided,
- Friendly relations with foreign states should be maintained.
Where on the other hand the members of parliament have been granted powers, privileges etc. their powers or privileges are absolute unlike fundamental rights for the citizens.
The Parliament enjoys mostly all the supreme powers while making laws and exercise its power to the best possible extent because of the absolute nature of its powers and privileges.
The powers of the legislators are too wide such as they decide their own privileges, include points which can breach the laid down privileges, and also decide the punishment for that breach.
Article 105(3) and Article 194(3) states that the parliament should from time to time define the laws or pass the laws on the powers, privileges and immunities of the members of the parliament and members of the legislative assembly.
The facts of the case:- The U.P. Legislative Assembly issued a warrant against the Home Minister who was arrested from his residence in Bombay on the ground of contempt of the house. The Home Minister under Article 32 applied a writ of Habeas Corpus on the ground that his detention under Article 22(2) violates his fundamental right.
The Supreme Court accepted the arguments and ordered his release according to Article 22(2). He was not presented before the magistrate within 24hrs of his arrest or detention. Not presenting him before the magistrate resulted in the violation of his fundamental right under Article 22(2). In this case, it was opined that Article 105 and Article 194 cannot supersede the fundamental rights.
The facts of the case:-the petitioner is the editor of the English Daily newspaper of Patna. He published a report on the proceedings of the Bihar Legislative Assembly and the reports were said to be removed by the speaker.
The editor was presented before the Legislative Assembly to give reasons for the breach of privilege committed by him. At first, he was held guilty for his conduct. Then, in an appeal, the editor under Article 19 (1)(a) argued that he has a right to freedom of speech. But the Court denied all the arguments based on Article 19(1)(a) as it is a general provision and Article 194 is a special provision. If at any time both of these articles come under any conflict the latter will prevail over the former. As the general provision cannot overrule the effect of the special provision.
It has also been suggested that if both Articles, Articles 19(1)(a) and 194, are in conflict, the rule of Harmonious Construction (every statute should be read as a whole and interpretations consistent of all the provisions of the statute should be adopted when in conflict of any statute or any part of the statute) should be applied.
Privileges and the law courts
Article 143 confers the power on the President to consult the Supreme Court if at any time it appears to the President that a question of fact or a law arises or may arise in future. Also, such questions must be of public importance or it must be advantageous to seek the opinion of the Supreme Court. And after such hearing, if the court thinks it relevant, it may give its opinion to the President.
The house of parliament though have a lot of powers, privileges and immunities but despite all these advantages it cannot act or perform similar to a Court. The Courts are the one who interprets the laws or acts passed by the parliament. For instance, if any offence is committed even in the house of parliament the jurisdiction vests with the ordinary Courts.
The facts of the case – Keshava Singh, who was a non-legislative member of the assembly, printed and published a pamphlet. Because of the printing and publishing of the pamphlet, the Speaker of the U.P. Legislative assembly criticized him for contempt and breach of the privilege of one of the members. On the same day, Mr Keshava being present in the house committed another breach by his conduct.
As a result of his conduct in the house, the speaker directed him to be imprisoned, issued a warrant for the same and ordered his detention in jail for 7 days.
Under Article 226, a writ of Habeas Corpus was applied in his petition. The petition claimed that the detention in jail is illegal and is done with malafide intentions. The petition also stated that he was not given any chance to explain or defend himself. The petition was heard by the 2 judges who gave them interim bail.
As a result of the decision in Keshava’s case, the assembly passed a new resolution.
In this resolution, it was laid that the 2 judges entertained the writ filed by the petitioner and his lawyer. In its resolution, the assembly issued a contempt notice to present the two judges and the lawyer before the house and explain the reasons for their conduct. It also ordered that Keshava should be taken into custody. Under this, they moved petitions under 226 and filed a writ of mandamus before the Allahabad High Court to set aside the resolution passed by the assembly.
It was held by the majority of the Supreme Court that the conduct of the 2 judges does not amount to contempt.
The Court further explained that if in the matters of privileges stated under Article 194(3) then the house will be considered as the sole and exclusive judge provided that it should be stated in that. But if any such privilege is not mentioned in the article then it’s the Court who has to decide upon it.
Thus, we can see that Indian bar has cleared up the confusion by interpreting the constitution and has declared it unitary. This standpoint of the courts has experienced a drastic change over the once many times. The courts have honoured the fact that the framers of the constitution had the intention of giving a strong centre with power so as to help the nation from decomposition. From the once incidents, it has been noticed that there have been times when the power was misused, so certain emendations need to be made which would further strengthen the civil nature of our constitution. This could only be when further power and fiscal coffers are regressed upon the countries so that they’re independent and don’t have to take fiscal backing from the centre. Also, lesser autonomy should be there with the countries so that they could take over further experimental programmes. After analysing Composition 105 and 194, one can easily infer their wholeness. These special vittles are granted to the Parliament for its effective functioning. These papers also put duties upon them to make effective laws which don’t harm the rights of others. The congress or the Legislative Assembly however can exercise their powers, boons and impunity, cannot act as an ordinary Court of justice.