Federal System of Indian Constitution / Unitary Features of Indian Constitution
- Federalism is an institutional mechanism to accommodate two sets of polities, i.e., first is the center or national level and second is at the provincial or regional level. Both the sets of polities are autonomous in its own sphere.
- Each level of the polity has distinct powers and responsibilities and has a separate system of government.
- The details of this federalism or dual system of government are generally found in a written constitution.
- Written Constitution is considered to be supreme and also the source of the power of both sets of government.
- Certain subjects, which are the concern of a nation as a whole, for example, defense or currency, are the responsibility of the union or central government.
- On the other hand, regional or local matters are the responsibility of the regional or state government.
- In case of a conflict between the center and the state on any issue, the judiciary has the powers to resolve the disputes.
- Though the Indian Constitution does not use the word ‘federalism’ anywhere; however, the structure of Indian government is divided into two sets of governments i.e.
- For the entire nation known as the ‘Union Government’ (or central government) and
- For each unit or state known as the ‘State Government.’
Subjects of Federal System
- The Constitution clearly demarcates subjects, which are under the exclusive domain of the Union and those under the exclusive of States.
- Likewise, the Constitution describes three lists −
- Union List (subjects dealt by only Central Government);
- State List (subjects dealt normally by States only); and
- Concurrent List (both Union and State have the power to legislate these subjects).
- Subjects of Union List are −
- Atomic Energy
- Foreign Affairs
- War and Peace
- Post and Telegraph
- Foreign Trade
- Currency & Coinage
- Subjects of State Lists are −
- Local Government
- Public Heath
- Trade and Commerce
- Livestock and Animal Husbandry
- State Public Services
- Subjects of Concurrent Lists are −
- Transfer of Property other than Agricultural land
- Trade Unions
- Adoption and Succession
- Article 257 of the Constitution is read as: The executive power of every State shall be so exercised as not to impede or prejudice the exercise of the executive power of the Union, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose.
- The Sarkaria Commission was appointed by the central government in 1983 to examine the issues relating to center-State relations; the Commission submitted its report in 1988 and recommended that appointments of Governors should be strictly non-partisan.
- In 1953, the States Reorganization Commission was set up and it recommended the creation of linguistic States, at least for the major linguistic groups.
- Resultantly, Gujarat and Maharashtra were created in 1960 and the process is still going on.
- The Constitution of India (under Article 371) has given some special provisions for some States after considering their peculiar social and historical circumstances. However, most of the special provisions are related to the north eastern States (i.e. Assam, Nagaland, Arunachal Pradesh, Mizoram, etc.) largely due to a sizeable indigenous tribal population with a distinct history and culture.
- Under Article 370 of the Constitution, the northern most state Jammu and Kashmir has also special provisions.
- One of the major differences between the other States and the State of J&K are that no emergency due to internal disturbances can be declared in J&K without the concurrence of the State.
- The Union Government cannot impose a financial emergency in J&K and the Directive Principles also do not apply in J&K.
- An amendment to the Indian Constitution (under Art. 368) can only apply in concurrence with the government of J&K.
FEDERAL AND UNITARY FEATURES OF INDIAN STATE
- Is the Indian Constitution federal, unitary or quasi-federal? The members of the Drafting Committee of the Constituent Assembly of India called it federal.
- But there are jurists who dispute this title. It is, therefore, imperative to ascertain, what is a federal Constitution and what are its essential characteristics?
- However, the answer to this Question is compounded by the fact that there is no agreed definition of a federal State and it is customary with scholars on the subject to start with the model of the United States, the oldest (1787) of all federal Constitutions in the world, and to exclude any system that does not conform to that model from the nomenclature of federation.
- But it is generally agreed that whether a State is federal or unitary is one of degree and whether it is a federation or not depends upon the number of federal features it possesses.
A FEDERAL STATE
- A federation has well-established dual polity or dual government viz., the federal government and the state governments.
- The force of the government is divided between the federal and state governments which are not subordinate to one another but coordinate bodies that are independent within their respective allotted spheres. Therefore, the existence of co-ordinate authorities independent of each other is the foundation of the federal principle.
- A Constitution which embodies a federal system is said to possess the following five characteristics:
Distribution of Powers
- An essential feature of a federal Constitution is the distribution of powers between the central government and the governments of the several units (provincial governments) forming the federation.
- Federation means the distribution of the power of the State among a number of co-ordinate bodies, each originating from and controlled by the Constitution.
Supremacy of the Constitution
- This means that the Constitution should be binding on the federal and state governments. Neither of the two governments should be in a position to override the provisions of the Constitution relating to the powers and status which each is to enjoy.
- This requirement is satisfied if the 6upremcy or overriding authority is accorded only to the provisions relating to the division of powers. Other provisions of the Constitution, which do not relate to the relationship between the Centre and the units, need not be supreme.
- The Constitution must necessarily be a written document. It will be practically impossible to maintain the supremacy of the Constitution, unless the terms of the Constitution have been reduced into writing.
- This feature is a corollary to the supremacy of the Constitution. Here rigidity does not mean that Constitution is unamendable or not subject to change.
- It simply means that the power of amending the provisions of the Constitution which regulates the status and powers of the federal and state government should not be confined exclusively either to the federal or state governments, but must be a joint act of both.
- As regards the provisions of the Constitution that are not concerned with the federal system there is no need to maintain the same rigidity.
Independent and impartial authority of Courts
- The legal supremacy of the Constitution which is an essential feature of a federal State makes it necessary that there must be an authority above both, the federal government and the component state governments to decide whether they are operating under the frame of the Constitution in desired manner. This aspect of involves two connected matters.
- Firstly, there must be some authority, normally the courts of law to maintain the division of powers not only between the state governments, but also between the federal government on one hand and the state governments on the other.
- The courts of law are vested with power to declare laws made by the federal or state governments, ultra vires on the ground of excess of power. Secondly, to constitute a final Supreme Court which should not be dependent upon the federal or state governments and should be armed with the final authority to interpret the Constitution. A perusal of the provisions of the Constitution of India reveals that the political system introduced by it possesses all the aforesaid essentials of a federal polity.
- The Indian Constitution establishes a dual polity. The dual polity consists of the Union at the Centre and the States at the periphery, each endowed with powers to be exercised in the field assigned to them respectively, by the Constitution.
- The powers of the Union and the States are clearly demarcated.
- The Constitution is written and supreme. Enactments in excess of the powers of the Union or the State Legislatures are invalid. Moreover, an amendment which makes any changes in the status or powers of the Centre or the State Legislatures is invalid. Further, any amendment which makes changes in the status or powers of the Centre or the units is possible only with the concurrence of the Union and of a majority of the States.
- Finally, the Constitution establishes a Supreme Court to decide disputes between the Union and the States or between the States and to interpret finally the provisions of the Constitution.
- A State is unitary when it is governed constitutionally as one single unit, with one constitutionally created legislature.
- All power is top down. In federal system, power is divided between federal units. A unitary State is a sovereign State governed as one single unit in which the Central government is supreme and any administrative divisions (subnational units) exercise only powers that the Central government chooses to delegate.
- Thus, while in a federal State, both the Central government and State governments derive their authority from the same Constitution, in a unitary State, the State governments derive their authority as delegated by the Central government.
UNITARY FEATURES OF INDIAN CONSTITUTION
Union of States
- Article 1 of the Constitution describes India as a “Union of States”, which implies two things: firstly, it is not the result of an agreement among the States, as it is there in federations and secondly, the States have no freedom to secede or separate from the Union.
- Besides, the Constitution of the Union and the States is a single framework from which neither can get out and within which they must function.
- The Indian federation is a union because it is indestructible and helps to maintain the unity of the country.
Power to form new States and to change existing boundaries
- In the USA, it is not possible for the federal government to unilaterally change the territorial extent of a State but in India, the Parliament can do so even without the consent of the State concerned.
- Under Art 3, Centre can change the boundaries of existing States and can carve out new States. This should be seen in the perspective of the historical situation at the time of independence.
- At that time there were no independent States. There were only Provinces that were formed by the British based on administrative convenience. At that time States were artificially created and a provision to alter the boundaries and to create new States was dept so that appropriate changes could be made as per requirement. It should be noted that British India did not have States similar to the States in the USA. Thus, the States in India do not enjoy the right to territorial integrity.
Unequal Representation in the Legislature
- The equality of units in a federation is best guaranteed by their equal representation in the Upper House of the federal legislature (Parliament).
- However, this is not applicable in case of Indian States.
- They have unequal representation in the Rajya Sabha. In a true federation such as that of United States of America every State irrespective of their size in terms of area or population, sends two representatives to the Upper House i.e. Senate.
- There is a single Constitution for both Union and the States.
- There is no provision for separate Constitutions for the States, except for Jammu and Kashmir. In the USA and Australia, the States have their own Constitutions which are equally powerful as the federal Constitution.
- Nor the States of India can propose amendments to the federal Constitution. As such amendments can only be made by the Union Parliament.
- India follows the principle of uniform and single citizenship, but in the USA and Australia, double citizenship is followed.
- This means that people are citizens of both the federal State and their own State which has its own Constitution.
More powers to the Central government in the list of subjects
- In India, the distribution of powers has made the Central government very strong. In the Schedule VII which contains the distribution of powers among units of federation, the Union list consists of 100 subjects whereas there are only 61 subjects in the State list.
- Again in the Concurrent list, there are 52 subjects. In case of an overlap or conflict, the Constitution secures the predominance of Union list over Concurrent and State lists as well as that of Concurrent list over State list.
- Even the Residuary powers (the power to make laws on those subjects which have not been mentioned in any of the lists) have been given to the Union government, which are otherwise given to federal units in conventional federations such as USA and Australia.
Power to make laws on the subjects in State list
- The Parliament has the exclusive authority to make laws on the 100 subjects of the Union list, but the States do not have such exclusive rights over the State list. Under certain circumstances, the Parliament can legislate on subjects of State list. This power is exercised only on the matters of national importance and that too if the Rajya Sabha agrees with 2/3rd majority. There are five such situations as mentioned below:
- Under Art. 249, if the Rajya Sabha passes a resolution with not less than 2/3rd majority, authorizing Parliament to make laws on any State subject, on the ground that it is expedient or necessary in the national interest, then Parliament can legislate over that subject. Such laws shall be in force for only 1 year and can be continuously extended any number of times but for not more than one year at a time.
- Under Art 250, if national emergency is declared under Art 352, the Parliament has the right to make laws with respect to all the 61 subjects in the State list automatically i.e. the State list is transformed into the Concurrent list.
- Under Art 252, if the Legislatures of two or more States request the Parliament to legislate on a particular State subject, the Parliament can do so. However, such legislation can be amended or repealed only by the Parliament.
- Under Art 253, the Parliament can make laws even on subjects in the State list to comply with the international agreements to which India is a party. The States cannot oppose such a move. An example or this is the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 which was enacted for giving effect to the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region convened by the Economic and So-vial commission for Asia and Pacific held at Beijing in 1992.
- Under Art. 356, if President’s rule is imposed in a State the power of the legislature of that State become exercisable by or under the authority of the Parliament. This gives the Parliament full powers to legislate on any matter included in the State list.
- The States depend upon the Union to a great extent.
- The states do not possess adequate financial resources to meet their requirements. During emergency, the Centre exercises full control over the States’ finances.
- The President of India an declare three different types of emergency rules under Articles 352, 356 and 360 for an act of foreign aggression or internal armed rebellion, failure of constitutional machinery in a State and financial emergency respectively.
- During the operation of an emergency, the powers of the State governments are greatly railed and the Union government acquires all the powers.
- If the President declares emergency for the whole or part of India under Article 352, the Parliament can make laws on subjects, which are otherwise, exclusively under the State list. The Parliament can give directions to the States on the manner in which to exercise their executive authority in matters within their charge.
- The financial provisions can also be suspended. Thus in one stroke, the Indian federation acquires a unitary character.
- However, such a situation is not possible in other federal Constitutions.
Appointment of Governor
- Articles 155 and 156 provide that the Governor, who is the constitutional head of a State, is to be appointed by the President and stays only until the pleasure of the President.
- Thus, he is not responsible to the State legislature.
- The Centre may take over the administration of the State on the recommendations of the Governor or otherwise, to impose the President’s rule.
- In other words, Governor is the agent of the Centre in the States. The working of Indian federal system clearly reveals that the Governor has acted more as a Central representative than as the head of the State.
- This enables the Union government to exercise control over the State administration.
Administrative directions to the States
- Under Article 256, the Centre can give administrative directions to the States, which are binding on the latter. Along with the directions, the Constitution also provides measures such as President’s rule under Article 365, to be adopted by the Centre to ensure such compliance.
- The federal principle envisages a dual system of Courts. But, in India there is a single integrated judicial system for whole of the country.
- We have unified Judiciary with the Supreme Court at the apex.
- The High Courts work under its supervision. Similarly, the other courts in a State work under the respective State High Court.
Appointment on Key Positions
- In addition to all this, all important appointments such as the Chief Election Commissioner, the Comptroller and Auditor General are made by the Union government, though their jurisdiction extends to both Union and the States.
All India Services
- Under Article 312, the All India Services officials IAS, IPS and IFS (Forest) are appointed by the Centre, but are paid and controlled by the State. However, in case of any irregularities or misconduct committed by the officer, the States cannot initiate any disciplinary action except suspending him/her.
- Thus, if we see, our Constitution establishes a federal State in terms of structure of governments, but it adorns a unitary character in terms of functions.
- This is particularly true in times of emergencies when all the powers are concentrated in the hands of Centre, as well as for the nature of legislative powers, administrative and financial control of Centre over the States. Thus, it is quite obvious that the Indian Constitution is more unitary than federal in nature.
- It is for this reason that Dr. K. C. Wheare said: “The Indian Constitution establishes, indeed, a system of government which is at the most quasi-federal, almost devolutionary in character; a unitary State with subsidiary federal features rather than a federal State with unitary features.” Hence, it is true to say that Indian Constitution establishes a system of government which is only ‘federal in form but unitary in spirit’. Here, the Centre has been made strong at the cost of the States.
- Having said this all, it must be noted that whatever the structure of the Constitution and resultant government is – federal, quasi-federal or unitary – it’s real nature depends on the spirit of functionaries occupying the government.
- They can run it in the spirit of ‘co-operative federalism’ or ‘unitary centralism’. The beauty of the Indian Constitution is that it has been made relatively flexible so as to showcase its federal or unitary face in accordance with the socio-political situations in the country. Dr Ambedkar, one of the architects of the Indian Constitution, rightly remarked, “Our Constitution would be both unitary as well as federal according to the requirements of time and circumstances.”
- The aforementioned provisions in the Constitution are aimed at establishing a working balance between the requirements of national unity and autonomy of the States.
- The federal Constitutions of the USA and Australia, which are placed in a tight mould of federalism, cannot change their form. They can never be unitary as per the provisions of their constitution. But, the Indian Constitution is a flexible form of federation – a federation of its own kind. It is a federation sui generis.
- The dominance of a single party both at the Centre and in the States till the 6th General elections had contributed further to the centralised structure of government in India. The Central government treated the State governments in those years as their subordinates. The financial strength of the Centre vis-à-vis states has kept it powerful all along. With every passing five year term the Planning Commission in India has also been emerging as stronger instrument for extending the sphere of influence of the Union government over the States.
- The situation has changed in the coalition era in the last twenty years or so and the regional parties are becoming strong. These regional parties are bargaining hard with the Centre in order to promote their local interests. With the rise of regional parties India now seems to be moving towards ‘bargaining federalism’.