Consti.docx

PROJECT ON FEDERALISM

SUBMITTED TO Mukesh Ghosh Asst. Professor CONSTITUTION OF INDIA

SUBMITTED BY Shiwanshu Ranjan Prasad Roll no.29 , B.A-LL.B 3rd SEM

SCHOOL OF LAW GURU GHASIDAS UNIVERSITY,BILASPUR DATE OF SUBMISSION-

DECLARATION I Shiwanshu Ranjan Prasad, Roll no - 29 of B.A-LL.B 3rd SEM, of Guru Ghasidas University, do hereby specially declare that this project is my original piece of work and I have not copied this project from any source without due acknowledgment. I am highly indebted from the author of the books that I have referred in my project as well as all the writers of the articles and the owners of the information taken from the website for it. It is only because of their contribution and proper guidance of my faculty adviser Asst. Prof. Mukesh Ghosh that I was able to gather light on the subject.

Shiwanshu Ranjan Prasad Roll no. 29 B.A-LL.B 3rd SEM

CERTIFICATE

I am glad here to submit this project on FEDERALISM as a part of my academic

assignment.

The

project

is

based

on

Research

Methodology. It further studies meaning. Sources and Methods of research Methodology and further discusses the Interview Method. I hope this would be significant for academic purposes as well as prove informative to all readers. Here though I declare that this paper is an original piece of research and all are borrowed text and ideas have been duly acknowledged.

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ACKNOWLEDGMENT

I am using this opportunity to express my deepest appreciation to all those who provided me the possibility to complete this project work. I pay my special gratitude and warm thanks to my subject teacher Asst. Prof. Mukesh Ghosh for her aspiring guidance, invaluably constructive criticism and friendly advice during the project work. I would like to extend my sincere thanks to my respective seniors and dear friends for sharing their truthful and illuminating views on a number of issues and topics related to this project. Least but not the last I would also like to thank my parents who supported me economically a lot in finalizing within the limited time frame. So I could present it so well.

Shiwanshu Ranjan Prasad Roll no-29 B.A-LL.B 3rd SEM

CONTEXT TOPIC – FEDERALISM 1. Introduction 2. Historical background 3. The Features of government of India Act,1935 4. A Threefold division was made in the Act 5. Federal Structure with Unitary Features 6. Different Types of Federal constitution in the Modern world 7. Essential Features of a Federal Polity 8. The constitution provides for enlargement of the federal legislative power in certain contingencies 9. Conclusion 10. Bibliography

Introduction The present Constitution of India was brought into force on January 26, 1950. It is a prolix and detailed document containing 395 articles and 8 schedules. It ushers into the country a polity based fundamentally on two ingredients - a British type democratic system of government and federalism. India, says the Constitution, is to be a Union of States. India has a Central Government and 29 State Governments At both levels, parliamentary form of government based on adult suffrage operates. The Constitution makes elaborate provisions covering many aspects of Centre-State and interstate relationship, and in this respect it differs from the constitutions of the U.S.A., Canada and Australia which contain only skeletal provisions to regulate intergovernmental relationship. Since its inception, the Indian Federalism bas been called upon to meet many challenges. To improve the material well-being of the people, the country has embarked on comprehensive socio-economic planning pervading all aspects of national life, such as industry, agriculture, land reforms, population control, exploitation of natural resources and provision of such social services as education, health, housing, etc., and this has necessitated a complete mobilisation of the country resources. Then, India has faced complications on its borders because of the bellicose attitude of some of its neighbours and there have been strains within the body politic itself resulting from internal developments, mainly because of the language problem. These various forces and compulsions have shaped and moulded In than Federalism. Further, India has witnessed the significant political phenomenon of one political party - the Indian National Congress - completely dominating the scene since 1947 when it controlled the Central and all State Governments. This smoothed and facilitated the -working of federalism in its formative period. It stabilized the political and administrative structure of the country, minimised tensions between various governments as all owed allegiance to one party, and helped in resolving many questions informally at party forums. But this situation has undergone a change recently. The fourth general elections held in early 1967 have broken the one party dominance, or the Congress monolith, and various Political parties have assumed control of various governments. With this development, an era may be said to have ended in the career of Indian Federalism, and a new, perhaps a more challenging one, initiated. The new political situation, is bound to release new forces which may have a profound impact on it. As one can easily foresee, disputes among the various governments of various political complexion are bound to arise, and much that has come to be accepted till now in the area of federalism would perhaps be challenged and some new trends initiated. This paper makes an attempt to survey some of the facets of the growth of Indian Federalism and to identify some of the problem areas which may call for new reasoned solutions in the new context.

Historical Background Before analyzing the main features of the system introduced by this Act, it should be pointed out that this Act went one step forward in perpetuating by the communal cleavage between the Muslim and the non- Muslim communities by prescribing separate electorate on the basis of the ‘Communal Award which was issued by Mr. Ramsay MacDonald, the British Prime Minister on August 4, 1932, on the ground that the two major communities have failed to come to an agreement. From now onwards, the agreement between the two religious communities was continuously hoisted as a condition precedent for any further political advance. The Act of 1935, it should be noted, provided separate representations not only for the Muslims, but for the Sikhs, the Europeans, Indian Christians and the Anglo Indians and thus created a serious hurdle on the way of the building up of the national unity, which the makers of the future Constitution found it almost insurmountable to overcome even after the Muslims had partitioned for a separate state.

The Features of Government of India Act, 1935: (i)The Federal Scheme.-While under all the previous Government of India Acts, the Government of India was unitary, the Act of 1935 prescribed a federation, taking the provinces and the Indian state as units. (A)Under the pre-existing unitary system the provinces were under the Administrative as well as legislative control of the central government from whom their authority was derived. Though under the Government of India Act, 1919, the Provincial executive exercised powers over a wide field and was responsible to the Provincial Legislature matters, the essence of the political system was“A unitary and centralized government with the Governor-general in the council as the keystone of the whole constitutional edifice, and it is through the Governor-general in council that the secretary of state and the Parliament discharge their responsibilities, for the peace, order and good Government of India.”1 In short, throughout the British rule and in spite of the reforms introduced by the Government of India Act, 1919, the Central Government remains the agent of the Secretary of State who was responsible to the British Parliament and the provinces derived their authority by devolution from the Central Government.

1

Rep. of the joint Parliamentary Committee(1933-34)

The Indian States, which were ruled by hereditary Chiefs, enjoyed various degrees of internal sovereignty, but were controlled by the Governor-General so far as their external relations were concerned and even in internal affairs, the Governor-General, as the vice Roy or representative of the Crown, held a reserve of power to interfere in cases of maladministration and the like, by virtue of the crown’s suzerainty which was conveniently referred to as paramount.

The Governor-General, thus, formed the apex of this highly centralized system. (B)The Government of India Act, 1935, proposed to unite the Provinces and the Indian States into a federation under the Crown. So far as the Provinces were concerned, this involved the process of breaking up the unitary State into a number of autonomous Provinces which were to derive their authority directly from the Crown (instead of from the Central Government as under the previous system), and then building them up into a federal structure, in which both the Federal and Provincial Governments should get definitely demarcated powers by direct delegation from the Crown. As the Simon Commission put it“In any new constitution, in which autonomous Provinces are to be federally united under the Crown, not only can the Provinces no longer derive their power and authority from devolution by the Central Government, but the Central Government cannot continue to be the agent of the Secretary of the State. Both must derive their powers and authority by a direct grant by the Crown. We apprehend, therefore, that the legal basis of a reconstituted Government of India must be, first, the resumption into the hands of the Crown all rights, authority and jurisdiction in and over the territories in British India, whether they were at present vested in the Secretary of State, the Governor-General in Council, or in the Provincial Government and Administrations: and second, their redistribution in such manner as the Act may prescribe between the Central Government on the one hand and the provinces on the other.”2

The federal structure envisaged by the Government of India Act, 1935, however never came into being; for it was optional3 with the Indian states to join the proposed Federation, and they naver gave their concent.

2 3

This was done by Government of India Act, 1935. Ss. 5-6 Government of India Act, 1935.

(ii)Provincial Autonomy- Federation never took effect, the Part relating to Provincial Autonomy was given effect since April, 1937. The Act divided legislative powers between the Provincial and Central legislatures, and within its defined sphere, the Provinces were no longer delegates of the Central Government, but were autonomous units of Administration. To this extent, the Government of India assume the role of a federal government vise a vise the Provincial Governments, though the Indian States did not come into the fold to complete the scheme of federation.

The executive authority of a Province was also exercised by the Governor on behalf of the Crown and not as a subordinate of the Governor-General. The Governor was required to act with the advice of the Ministers responsible to the Legislature. But notwithstanding the introduction of Provincial Autonomy, the Act of 1935 retained control of the Central Government over the Provinces in a certain sphere,- by requiring the Governor to act, ‘in his discretion’4 or in the exercise of his ‘individual judgment’5 in certain matters. In such matters, the Governor was to act without ministerial advice, and under the control and direction of the Governor General, and, through him, of the Secretary of State. The Governor General’s power to give directions6 and the Governor extraordinary powers of legislation, independent of the Provincial Legislature,7 also operated as fetters upon the full play of Provincial autonomy. The Governor had also the power acting in his discretion to make a proclamation that there was a failure of the constitutional machinery and assumes to himself all executive and legislative powers in the Province.8

(iii)Diarchy at the Centre- The executive authority of the Centre was vested in the GovernorGeneral (on behalf of the Crown), whose functions were divided into two groups:(a)

The administration of defense, external affairs, ecclesiastical affairs, and of tribal

areas, was left to the Governor General ‘in his discretion with the help of councilors’, appointed by him who were not responsible to the Legislature. \(b)

With regard to matters other than the above reserved subjects, the Governor General

on the advice of a ‘Council of ministers’, who were responsible to the Legislature. But even 4

Cf . Ss 11, 102, 126(4), Government of India Act, 1935 S 12 Government of India Act, 1935. 6 Sec. 126 Government of India Act, 1935 7 Sec. 43-44 Government of India Act, 1935 8 Sec. 93 Government of India Act, 1935 5

in regard to this latter sphere, the Governor General might act contrary to the advice so tendered by the ministers if any of his ‘special responsibilities’ were involved. As regards the special responsibilities, the Governor General was to act under the control and directions of the Secretary of State. But, in fact, neither any ‘Councilors’ nor any Council of Ministers responsible to the Legislature came to be appointed under the Act of 1935; the old Executive Council provided by the Act of 1919 continued to advice the Governor General until the Indian Independence Act, 1947.

(iv)Distribution of legislative powers between the Centre and the Provinces- Though the Indian States did not join the Federation, the federal provisions of the Government of India Act, 1935, were in fact applied as between the Central Government and the Provinces. The division of power between the Centre and Provinces is of special interest to the reader in view of the fact that the division in the Constitution between the Union and the States proceeds largely on the same lines.

A threefold division was made in the Act – (i)

There was a federal list over which the federal legislature has exclusive power of legislation. This list included matters such as External affairs; currency and coinage; naval, military and air forces; census.

(ii)

There was a Provincial list of matters over which the provincial legislature has exclusive jurisdiction, e.g., Police, Provincial Public Service, and Education.

(iii)

There was a Concurrent List of matters over which both the Federal and Provincial had competence, e.g., Criminal law and procedure; Civil procedure; marriage and divorce, arbitration.

The federal Legislature had, however, the power to legislate with respect to matters enumerated in the Provincial list if a Proclamation of Emergency was made by the Governor General.9 The Federal legislature could also legislate with respect to a Provincial subject if the Legislature of two or more provinces desired this in their common interest.10

9

Sec. 102 Government of India Act, 1935. Sec. 103 Government of India Act, 1935.

10

In case of repugnancy in the concurrent field, a Federal law prevailed over a Provincial law to a extent of the repugnancy, but if the provincial law received the assent of the GovernorGeneral or of His Majesty, having been reserved for their consideration for this purpose, the provincial law prevailed, notwithstanding such repugnancy.11 The allocation of residuary power of legislation in the Act was unique. It was not vested in either of the Central or Provincial Legislature but the Governor-General was empowered to authorize either the Federal or the Provincial Legislature to enact a law with respect to any matter which was not enumerated in the legislative Lists.12 (v)Non sovereign character of the Legislatures- the Central Legislature was bi-cameral, consisting of the House of Assembly and the Council of State. In six of the Provinces, the Legislature was bicameral, consisting of a Legislative Assembly and a Legislative Council. In the rest of the Provinces, the Legislature was unicameral. The Legislative powers of both the Central and Provincial Legislature were subject to various Legislations and neither could be said to have possessed the features of a sovereign Legislature. Thus, the Central Legislature was subject to the following limitations:(i)

Apart from the Governor-General’s power of veto a Bill passed by the Central legislature was also subject to veto by the Crown.13

(ii)

The Governor-General might prevent discussion in the Legislature and suspend the proceedings in regard to any bill if he was satisfied that it would affect the discharge of his special responsibilities.14

(iii)

Apart from the power to promulgate Ordinances during the recess of the Legislature, the Governor-General has independent power of Legislation, concurrently with those of the Legislature. Thus, he had the power to make temporary Ordinances as well as permanent Acts, at any time, for the discharge of his special responsibilities.

(iv)

No Bill or amendment could be introduced in the Legislature without the Governor-General’s previous sanction, with respect to certain matters, e.g., if the Bill or amendment sort to repeal or amend or was repugnant to, any

11

Sec. 107 Government of India Act, 1935. Sec. 104 Government of India Act, 1935. 13 Sec. 32 Government of India Act, 1935. 14 Sec. 40(2) Government of India Act, 1935. 12

law of the British Parliament exceeding to India or any GovernorGeneral’s or Governor’s Act, or if it sort to effect matters as respects which the Governor Genera was required to Act in his discretion. There were similar fetters on the Provincial Legislature. (vi)The Federal Court- Consistent with the Federal scheme introduced by the Act of 1935, it set up, for the first time, a Federal Court for India. The provisions relating to this Federal Court are of great interest in view of the fact that this Court- was a precursor of the Supreme Court under the Constitution and that many of the provisions of the Act of 1935 relating to the Federal Court have been substantially adopted in the Constitution as regards the Supreme Court. The Federal Court, as the guardian of the Federal system, had an original jurisdiction to determine dispute between the units of the federation inter se (s. 204). It was also the appellant court from the High Courts in the Provinces and the Indian States on Constitutional questions, that is to say, on questions involving the interpretation of the Government of India Act, 1935, and the Orders in Council made there under (Ss. 205, 207). Besides the Federal Legislature was empowered to confer upon the Federal Court civil appellate jurisdiction which so long belonged to the Privy Council was transferred to the Federal Court. Appeal however lay from the decision of the Federal court to the Privy Council (s. 208) until such appeal was abolished by the enactment of the Abolition of Privy Council Jurisdiction Act,1949.

Federal Structure with Unitary Features Since the framers of our constitution sought to combine the best features of different constitutional system in the word and to avoid the vices inherent in any particular system, they had naturally, to effect a compromise between opposite theories and models on several vital points. One of these is combination of a federal structure with unitary features. There has been much controversy among the scholars as to whether the system of polity introduced by the Indian Constitution is ‘federal’ or not. The Drafting Committee described the Constitution as ‘Federal in Structure’ but they preferred to call it a ‘Union’ to indicate two essential features of Indian federalism, namely, (a) That the Indian federation is not the result of an agreement by the units and

(b) That the component units have freedom to secede from it. The label used by the makers of the Constitution is not, however, conclusive on the question whether the polity introduced by it may legitimately claim to be classified as federal: we have to examine the relevant provisions of the Constitution itself, with reference to the standards which are applied by the political scientists to classify the political system as unitary or federal.

Different types of federal constitution in the modern world The difficulty of any treatment of federalism is that there is no agreed definition of a federal State. The other difficulty is that it is habitual with the Scholars on the subject to start with the model of United States, the oldest (1787) of all federal constitution in the world, and to execute any system that does not conform to the model from the nomenclature of ‘federation’. But numerous countries in the world have, since 1787, adopted Constitution having Federal features and, if the strict historical standard of the United States is applied to all these Constitutions, few will stand the test of Federalism save perhaps Switzerland and Australia. Nothing is however gained by excluding so many recent Constitutions from the Federal Class, for according to the traditional Classification followed by the political scientist, Constitutions are either Unitary or Federal. If therefore, a Constitution partakes of some features of both types, the only alternative is to analyze those features and to ascertain whether it is basically unitary or federal, although it may have subsidiary variations. A liberal attitude towards the question of Federalism is therefore inevitable particularly in the view of the fact that recent experiments in the world of Constitution making are departing more and more from the ‘pure’ type of either a Unitary or a Federal system. A scholar has thus observed that the question whether a State is federal or unitary is one of degree and the answer will depend on how many federal features the State possess. Another American scholar has observed that the federation is more a “functional” than an “Institutional” concept and that any theory which asserts that there are certain inflexible characteristics without which a political system cannot be federal ignores the fact “that institutions are not the same things in different social and cultural environments”. To anticipate a conclusion, the Constitutional system of India is basically Federal, but of course, with striking Unitary features. In order to come to this conclusion we have to formulate the essential minimum features of a Federal system as to which there is common agreement amongst political scientists. Though there may be difference in matters of detail, the consensus of opinion is that a federal system involves the following essential features:

Essential Features of a federal polity (a)Supremacy of the Constitution.- A federal State derives its existence from the Constitution, just as a corporation derives its existence from the grant by which it is created. Every power- executive, legislative, or judicial,- whether it belongs to the federation, or to be component States, is subordinate to and controlled by the Constitution.

(b) Dual Government.- While in a unitary State, there is only one government, namely the national Government, in a federal State, there are two Governments,- the national or federal Government and the Government of each component State. Though a unitary State may create local sub-divisions, such local authorities enjoy autonomy of their own but exercise only such powers as are from time to time delegated to them by National Government and it is competent for the national Government to revoke the delegated powers of any of them at its will. A federal State on the other hand, is the fusion of several States into a single State in regard to matters affecting common interests, while each component State enjoys autonomy in regard to other matters. The component states are not mere delegates or agents o the federal Government but both the federal and the State Government draw their authority from the same source, viz, the Constitution of the land. On the other hand, a component State has no right to secede from the federation at its will. (c)Distribution of Powers.- it follows that the very object for which a federal State is formed involves a division of authority between the federal Government and the States. This is what Prof. WHEARE (f.n…..-WHEARE, Federal Government, 2nd Ed., 11;28.)describes as the ‘federal principle’, i.e., “the method of dividing powers so that the General and Regional Governments are each, within a sphere co-ordinate and independent.” While in a unitary state, the demarcation of powers between the Central and local Governments is made by the Central Government and is alterable by itself, in a federal State, this demarcation is mede by the written Constitution which is source of authority of both the Governments and it can be altered only by amendment of that organic instrument. (d)Authority of Courts.- in a federal state the legal supremacy of the Constitution is essential to the existence of the State. It is essential to maintain the division of powers not only between the co-ordinate branches of the Government, but also between the central government and the state themselves. This is secured by having in the Courts (f.n------an exception to the general rule is furnished by the Switzerland where the federal Supreme Court has no power to guard the constitution as against the federal legislature) a final power to interpret the Constitution and to nullify any action on part of the Federal and State Governments or their different organs which violates the provisions of the Constitution. These essential federal features exist under the Constitution of India: Not much pain needs be taken to demonstrate that the political system introduced by our Constitution possesses all the above essentials of a federal polity. Thus, the Constitution is the supreme organic law of our land, and both the Union and the State Governments as well as their respective organs derive their authority from the Constitution, and it is not competent for the States to secede from the Union. There is a division of legislative and administrative powers between the Union and the State Governments and the Supreme Court stands at the head of our Judiciary to jealously guard this distribution of power and to invalidate any action which violates the limitations imposed by the Constitution. This jurisdiction of the Supreme Court may be resorted to not only by a person (f.n….- Cf. Gujrat University v. Sri Krishna,

AIR 1963 SC 703 (715-6); Waverly Mills v. Raymon &Co., AIR 1963 SC 90(95))who has been affected by a Union or State law which, according to him has violated the Constitutional distribution of powers but also by the Union and the States themselves by bringing a direct action against each other, before the Original Jurisdiction of the Supreme Court under Art. 131(f.n……- Cf. State of West Bengal v. Union Of India, AIR 1963 SC 1241). It is because of these basic federal features, that our Supreme Court has described the Constitution as ‘federal’(f.n……-Cf; Atiabari Tea Co,. v. State of Assam, (1961 1 SCR 809 (860); Automobile Transport v. State of Rajasthan, AIR 1962 SC 1406(1416). Though our Constitution possess these fundamental elements of a federation, it possesses so many unique features that it has been variously characterized by foreign observers as ‘quasifederation’(f.n…..-WHARE, Federal Government, 2nd Ed., 11;28), ‘a unitary state with subsidiary federal features’(f.n…..-WHARE, India’s New Constitution Analyzed, (1950)5 DLR 25 (Journal)) , ‘a federation with strong centralizing tendency’(f.n…..-JENNINGS, Some characteristics of the Indian Constitution). [D]. Peculiar features of Indian federalism In order to make proper estimate of Indian federation it is, therefore, necessary to examine its peculiar features with reference to other federal system, particularly the American, which is still regarded as the mother of the federal Constitution. (A)The mode of formation.- a federal union may be formed in either of two principal ways, having regard to pre-existing condition of a component units,- (i) it may be formed by a voluntary agreement between a number of sovereign and independent States, for the administration of certain affairs of general concern, as in the case of the United States of America or Australia; or (ii) the provinces of a unitary State may be transformed into a federal union, as happened in the case of Canada. The provinces of Canada had no separate or independent existence apart from the colonial Government of Canada, and the Union was not formed by an agreement between them but was imposed by the British statute, which withdrew from the provinces all their former rights and then re-divided them between the Dominion and the Provinces(f.n…..- CLOKIE, Canadian Government and Politics, 1944,p.206). According to LORD HASLDANE in A.G. for Commonwealth v. Colonial Sugar Refining Co., the former represented the true federation only in loose sense: “In a loose sense, the word ‘federal’ may be used , as it is there (in Canada) used. To describe any arrangement under which self-contained States agree to delegate their powers to a common Government with a view to frame entirely a new Constitution even of the States themselves. But the natural and literal interpretation of the word confines its application to cases in which these states, while agreeing on a measure of delegation, yet in main continue to preserve their original Constitution.”(f.n……- A.G. for Commonwealth v. Colonial Sugar Refining Co.,(1914)AC 237)

The Australian federation thus represented the true type: “Their Lordships are called upon-to interpret the legislative compact made between the Common wealth and the States, and they have to determine on the language of the Statute (the Commonwealth of Australian Constitution Act), what rights of legislation the federating colonies declared to be reserved to themselves. It is clear that any change in the existing distribution of powers has been safeguarded in such fashion that….. the Commonwealth Parliament could not legislate so as to later the distribution merely of its own motion”(f.n…..A.G. for Commonwealth v. Colonial Sugar Refining Co, (1914)AC237). Of the Canadian Constitution on the other hand, his Lordship observed“Although it has been founded on the Quebec Resolution and so must be accepted as a treaty of Union among the then provinces, yet when once enacted by the imperial parliament, it constituted fresh departure and establish new Dominion and Provincial Government with defined power and duties both derived from the Act of Parliament which was their legal source”. India had a thoroughly unitary Constitution until the Government of India Act, 1935. The provincial governments were virtually the agents of the Central Government, deriving powers by delegation from the latter (p. 8-10, ante). To appreciate the mode of formation of federation in India, we must go back to the Government of India Act, 1935, which for the first time introduced the federal concept in the Constitution. Federation as envisaged by the Government of India Act, 1935: By the Act of 1935, the British Parliament set up a federal system in the same manner as it had done in the case of Canada, viz., “by creating autonomous units and combining them into federation by one of the same Act.” It did not emerge out of any ‘federal sentiment’ nor did it come into being as a result of a compact or agreement between the existing States to delegate some of their powers to a common Government. Al powers hitherto exercised in India were resumed by the Crown and redistributed(f.d…..- In a manner similar to that of British North America Act, 1867) between the Federation and the Provinces by a direct grant. Under this system the Provinces derived their authority directly by crown and exercised legislative and executive powers, broadly free from Central control, within a defined sphere. Nevertheless, the centre retained control through ‘the Governor’s special responsibilities’ and his obligation to exercise his individual judgment and discretion in certain matters, and the power of the Centre to give directions to the Provinces.(f.d……- though the federal system as envisaged bt the government of India Act 1935 could not fully come into being owing to the failure of the Indian States to join it, the provisions relating to the provinces and Central Government was given effect as above) The peculiarity of thus converting unitary system into a federal one can be best explained in the words of Joint Parliamentary Committee on Indian Reforms: “Of course in thus converting a unitary state into a federation we should be taking a step for which there is no exact historical precedent. Federation have commonly resulted from an

agreement between independent or, at least, autonomous Governments, surrendering a defined part of their sovereignty or autonomy to a new central organism. At the present moment the British Indian Provinces are not even autonomous for they are subject to both administrative and legislative control of the Government and such authority as they exercise has been in the main developed upon them under a statutory rule-making power by the Governor-General in Council. We are faced with the necessity of creating autonomous units and combining them into federation by one and the same Act”. Not the result of a compact: It is well worth remembering this peculiarity of the origin of federal system in India. Neither before nor under the Act of 1935, the provinces were in any sense ‘sovereign’ states like the States of the American Union. The Constitution, too, had been framed by the people of India assembled in the Constituent Assembly, and the Union of India cannot be said to be the result of any compact or agreement between autonomous States(f.n….- supported by the majority decision in State of W.B. v. Union of India AIR 1962 SC 1241). So far as the Provinces are concerned, the progress has been from a unitary to a federal organization, but even then, this has happened, not because the provinces desired to become autonomous units under a federal union, as in Canada. The provinces, as just seen, had been artificially ,made autonomous, within a defined sphere, by the Government of India, 1935. What the makers of the Constitution did was to associate the Indian States with these autonomous provinces into a federal union, which the Indian States had refused to accede to, in 1935. Some amount of homogeneity of the federating units is a condition for there desire to form a federal union. But in India, the position has been different. From the earliest times, the Indian States had a separate political entity, and there was little that was common in between them and the Provinces that constituted rest of India. Even under the federal scheme of 1935 the Provinces and the Indian States were treated differently; the accession of the Indian States was voluntary while it was compulsory for the Provinces, and the powers exercisable by the Federation over the Indian States were also to be defined by the Instruments of Accession. It was because it was optional with the Rulers of the Indian States that they refused to join the federal system of 1935. They lacked the ‘federal sentiment’ (Dicey), that is, the desire to form a federal union with the rest of India. But, as already pointed out, the political situation changed with the lapse of paramountcy of the British Crown as a result of which most of the Indian States acceded to the Dominion of India on the eve of Independence of India and they were brought within the Union envisaged by the Constitution by a process of ‘merger’ and ‘integration’ which is fully dealt with in Part VII, post). The credit of the makers of the Constitution lies not so much in bringing the Indian States under the federal system but in placing them, as much as possible, on the same footing as the other units of the federation, under the same Constitution. In short, the survivors of the old Indian States (States in Part B of the First Schedule)were, with minor exceptions placed under the same political system as the old provinces (States in Part A). the integration of the units of the units of the two categories has eventually been completed by eliminating the

separate entities of the States in Part A and States in Part and replacing them by one category of “States” by the Constitution (Seventh Amendment) Act, 1956. The federal plan of the Constitution is thus uniform and not heterogeneous, as it was under the Act of 1935. (A)Position of States in the federation.- From the historical background it has become already evident that the position of the States in our federal scheme must necessarily be somewhat subordinate to that of the Union. As the federation was not the result of any compact between the Independent States, there was no problem before the makers of the Constitution-how to maintain ‘State rights’. From this has resulted a departure from strict federal Principle on several points: (i)The American federation has been described “an indestructible Union composed of indestructible States.”(Texas v., White, (1868)7 Wall, 700(720). It is not possible for the National Government to redraw the map of the United States by forming new States or by altering the boundaries of the States as they existed at the time of compact without the consent of the Legislature of the States concerned(f.n…..-Art. IV, S. 3(1) of the American Constitution). The same principal is adopted in the Australian Constitution(f.n…..- Ss. 123-4 Australian Constitution)(f.n….- State of W.B v. Union of India, AIR 1963 SC 1241) with the further safeguard superadded that a popular referendum is required in the affected State to alter its boundaries. A state may be eliminated or reformed without its concent: But under our Constitution, it is possible for the Union Parliament to recognize the States or to alter their boundaries or to eliminate a State altogether by a simple majority in the ordinary process of the legislation (Art. 4(2)). The Constitution does not require that the consent of the Legislatures of the State is necessary for enabling parliament to make such laws; only the President has to ascertain the views of the Legislature of the State or States concerned before recommending a Bill for the purpose to the Parliament, and if any State Legislature does not express its views within the period fixed by the President, the Bill may be introduced in Parliament even without obtaining the views of that State. “Parliament is therefore……… invested with authority to alter the boundaries of any State and to diminish its areas so as to even destroy the boundaries of State with all its power and authority”. The reason why such a liberal power was given to the national Government to reorganize the States is that the grouping of the Provinces under the Government of India Acts was based on historical and political reason and not on social, cultural or linguistic divisions of the people themselves. The question of reorganizing the units according to natural alignment was indeed raised at the time of making of the Constitution but then there was not enough time to undertake this huge task.

Reorganizations of states: The comparative ease with which such re-organization is possible is demonstrated by the fact that within three years of commencement of the Constitution, a new State name Andhra was formed by subdividing the State of Madras (see, further, under Arts. 3-4, post). Shortly hereafter, the whole question of reorganization of the States composing the Union was referred to a State Reorganization Commission in December 1953, to have the question. “Carefully examined ……… so that the welfare of the people of each constituent units as well as of the nation as a whole is promoted.”(f.n….- No, 53/69/53-Pubic, Dt. 29-12-53, Gaz. of India, Extraordinary, part 1, Sec. 1, Dt. 29-12-53) As will be explained more fully hereafter (see under Art. 1, post), in pursuance of the recommendation of this Commission(f.n….- Report of the State Recommendation Commission 1955), the entire structure of the Union has been recognized by enacting the States Recognition Act (7 of 1956), followed by the Constitution (Seventh Amendment) Act, 1956. By this Act the number of States which was 27 in the original Constitution (in different categories), was reduced to 14. This process of reorganization was ever continuing as will be evident from the formation of so many States, subsequently, e.g., Himachal Pradesh, Manipur, Meghalaya, Nagaland, Tripura, Haryana, Mizoram, Sikkim, Arunachal Pradesh, Jharkhand, Goa.(f.n…..- vide p. 403 of the 14th Ed. Of Introduction to the Constitution) (ii)Not only does the Constitution offer no guarantee to the States against their territorial integrity being affected without their consent,- there is neither any theory of ‘equality of State rights’ underlying the federal scheme in our Constitution, since it is not the result of any agreement between the States. One of the essential principles of American federalism is the equality of the component States under the Constitution, irrespective of their size or population. This principle is reflected in the equality of representation of the States in the upper House of the federal Legislature is followed in the Australian Constitution as well. But in Canada, while each of three original provinces has 24 members, the number of members from other provinces, subsequently added, varies down to a minimum of 4. No federal equality of states: Under our Constitution there is no equality of representation of the States, in the Council of States. As given in the Fourth Schedule, the number of members from the several States varies from 1 to 34, such being the composition of the upper Chamber in our Constitution, the federal safeguard against the interests of the lesser States being overridden by the interests by the interests of the larger or the more populated States is absent under our Constitution.

Further, like the Canadian Senate, our Council of States does not exclusively represent the federal principle in as much as it consists of 12 nominated members (Art.80) apart from the representatives of the States. No state excepting Kashmir, can draw its own constitution: (iii)The States, under the Indian Constitution, have no right to determine their own constitution. While the Constitution of the United States (1787) simply drew up the Constitution of the national Government leaving it in “the main (to the States) to continue to preserve their Original Constitution” (or in case of new admissions- to draw up their own Constitution by a Convention) or to amend them, the Constitution of India, like that of Canada, prescribes the Constitution of the Union as well as those of the States(with one exception in case of Jammu & Kashmir). The States of the Indian Union have no right or power anterior to or apart from this Constitution(f.n……- Cf, Bank of Toronto v. Lambe, (1887)12AC 575. Unlike in Canada,(f.n….- S.45 of the Canada Act, 1982(SCW (3RD),P.107), on the other hand, the States under our Constitution have no independent power to make alteration in their own Constitution and even the abolition of a second Chamber in a State requires a law of Parliament (Art. 169). No dual citizenship or administration: Nature of the polity.- As a radical solution of the problem of reconciling national unity with “State right’, the framers of the American Constitution made a logical division of everything essential to sovereignty and created a dual polity, with a dual citizenship, a double set of officials and a double system of Courts. An American is a citizen not only of the State in which he resides but also of the United States, i.e., of the federation; and both the federal and the State Governments, each independent of other, operate directly upon the citizen who is thus subject to two Governments, and owes allegiance to both. But the Indian Constitution, like the Canadian, does not introduce any double citizenship but provides for one citizenship, viz., - the citizenship of India (Art. 5). Secondly, though the Union and the States shall have their own public services, there is no clear-cut bifurcation in the administration of the Union and the State Laws as in the U.S.A. in India, the majority of the public servants are employed by the States, but they administer both Union and the State laws as are applicable to their respective States by which they are employed. Our Constitution provides for the creation of All India Services, but they are to be common to the Union and the States (Art. 312). Members of the Indian administrative service, appointed by the Union, may be employed either under some Union Department (say, Home or Defence) or under a State Government, and their services are transferable, and

even when they are employed under a Union department, they have to administer both the Union and the State laws as are applicable to the matter in question. But even while serving under a State, for the time being, a member of all-India Service can be dismissed or removed only by the Union Government, even though the State Government is competent to initiate disciplinary proceeding for that purpose.(f.n….-Cf, Kanpur Singh v. Union of India, AIR 1960 SC493(497)) Thirdly, though, in general, the Constitution divides the ‘executive’ power between the Union and the States on the basis of the division of legislative powers (Arts 73(1); 162), this is not intended to be a partition into water-tight compartments as in the U.S.A. Thus,(a)As regards laws made by the Union on ‘concurrent’, subjects, the executive power will be primary exercised by the States, unless Parliament directs otherwise (Proviso to Arts 73(1), 162). (b)Even as regards ‘Union subjects’, the union may delegate its executive functions to a State, either by legislation by Parliament or by consent of the State Government (art. 258). Conversely, the States may entrust their function to the Government of India, with the consent of the latter (Art. 258A) (c)On the other hand, the Constitution specifically makes it the duty of the States to execute the Union laws and the executive powers of the State must also be so exercised as not to interfere with the executive power of the Union (Arts. 256-7), and in these matters, the States shall be under the direction of the Union. Herein, the framers of the Constitution appear to have been influenced by the pre-existing system, -i.e., under the Government of India Act, 1935(f.n……-Vide J.P.C. Report, Vol. 1, para 219, p.120; S26 Government of India Act, 1935). Such a plan of giving directions by the Union to the States is totally foreign to the American Constitution. (d)Not only is the Union entitled to give directions to the States, failure on the part of a State to carry out the directions of the Union (Art. 365) would entitle the Union to supersede the State Government, for the time being, by assuming to itself the powers of the State Government (Art. 356). Fourthly, there is no dual system for the administration of justice under our Constitution. In the U.S.A., there is a federal judiciary, with a hierarchy of Courts with the United States Supreme Court at its head, for the trial of cases relating to federal laws and other federal matters; and there is a separate system of Courts in each State, headed by the State Supreme Court for the enforcement of the State laws. But the working of this dual system has been cumbersome and productive of delays in the administration of justice.(f.n…..- DOUGLAS FROM MARSHALL TO MUKHERJEE (TLL 1956)p. 86)

No dual system of courts: India has, therefore, discarded the American model of dual system of Courts. Under the Constitution of India, there is (as in Canada) one integrated system of Courts, for the administration of both Union and the State laws, with the Supreme court at the top as the final appellate court in all matters, whether they relate to Union or State laws (Art. 132-6). Of course, there is a provision in the Constitution (Art.247) empowering parliament to create additional Courts for the better administration of Union Laws, but no such court has yet been established and it may be reasonably expected that we are not going to have any separate system of federal laws as a regular feature of judicial administration, for while, the American experience of entrusting State Courts with the enforcement of Federal laws during the period of confederation was unsatisfactory(f.n….- FERGUSON &Mc HENRY, American Federal Government,1947. P.308). In India the unified system of Courts exits from the beginning of the British regime, and no change was suggested when a federal scheme was first planned by the framers of the Government of India Act, 1935, because the experience of a unified system was too deep-routed to be disturbed. Not only is the judicial organization under our Constitution unified, the control over the judiciary is also unified or centralized, for though ‘administration of justice’ is a State subject (Entry 3 List II), the judges of the State High Courts are to be appointed and removed by the Union in the same manner as the judges of the Supreme Court (Art. 217) (D) Strong Central Bias Even though there is a distribution of power between the Union and the states as under a federal system, the distribution has a strong Central bias and powers of the state are hedged in which various restrictions which impede their sovereignty even within the sphere limited to them by the distribution of powers basically provided by the Constitution.(f.n……- State of West Bengal v. Union of India, AIR 1963 SC 1241 . ) Firstly, it may be observed that many subjects which were in the State or the Concurrent list in the Government of India Act, 1935, were transferred by the Constitution to the Union list so that the factors of economic and industrial progress could be placed under the unified and centralized control or administration. Instances to the point are Entries in the Union list relating to the National Highways (Entry 23); Inter-state trade and commerce (Entry 42). Secondly, the sphere of legislation allocated to the Union by the Legislative Lists can be enlarged at the cost of the States even in normal times. These various modes of expansion of the Union power are:

The constitution provides for enlargement of the federal legislative power in certain contingencies: (a)In the national interest- Parliament shall have the power to make laws with respect to any matter included in the State List, for a temporary period, if the Council of states declare by a resolution of 2/ of its members present and voting, that it is necessary in the national interest

that the Parliament should have power to legislate over such matters. Each such resolution wil give a lease of one year to the law in question. A law made by Parliament which Parliament would not but for the passing of such resolution have been competent to make shall, to the extent of incompetency, cease to have effect on the expiration of a period of six months after the resolution has ceased to be in force, except as respects things done or omitted to be done before the expiration of the said period. The resolution of the council of states may be renewed for a period of one year at a time (Art 249). (b)By agreement between States-if the Legislatures of two or more states resolve that it shall be lawful for the parliament to make law with respect to any matters included in the State list relating to those States, Parliament shall have such power as regards such States. It shall also be open to any other state to adopt such Union legislation in relation to itself by a resolution passed in that behalf in the legislature of the State, this is an extension of the jurisdiction of the Union Parliament by consent of the State Legislature (Art 252). Thus, though Parliament has no competence to impose an estate duty with respect to agricultural lands, Parliament has, in the Estate Duty Act, 195, included the agricultural lands situated in certain States, by virtue of resolution passed by the Legislatures of such States, under Art 252, to confer such power upon Parliament. Thirdly, in the matter of distribution of the taxing power, the more important resources having been allocated to the Union the State has to largely depend upon financial assistance from the Union (f.n…….-State of W.B v, Union of India, air 1963 Sc 1241) and there is an elaborate system for the making of grants and the distribution of a share of the proceeds of some taxes by the Union to the States. Even the borrowing power of the States has been subject to the consent of the Union in certain cases (Art 293(3)). (E) Deviation from normal federal ideas (a)Again, though the Indian Constitution presents a federal system for normal times, it has a unique achievement of imparting to that federal system the strength of a unitary system, by enabling the federal Government to convert itself into a unitary one, in emergencies. One of the basic principles of federalism, as it is understood in the United States of Australia(f.n……- A.G. for commonwealth v. Colonial sugar refining Co., (1914) AC 237), is that the division of powers made by the original compact as embodied in the Constitution should not be allowed to be superseded at the mere will of one of the contracting parties. No doubt the ambit of the federal powers is virtually enlarged by judicial interpretation; but the fact remains that it is not possible for the national Government neither to transfer to itself any of the powers belonging to the States, by unilateral action nor to suspend the working of the State Governments. But this will be possible under the Constitution of India, and in respect, our Constitution even goes beyond the Canadian. We have already seen that it will be open to the Union Government to supersede a State Government which refuses to carry out its directions as are authorized by the Constitution (Art 365). While in normal times the power to give direction is confined to some specific matters (Arts 256-7), when a Proclamation of Emergency is made

by the President (Art 352) the power of Union executive to give direction to the State executive will extend to any matter (notwithstanding any other provision in the Constitution) (Art 353(a)); and the legislative power of the Union Parliament will also automatically extend to matters in State List (Art. 250(1)). (b)The constitution also envisages a financial emergency which is stated to be “a situation whereby the financial stability or credit of India or any part of the territory thereof is threatened.” The power to make a declaration that such an emergency exists is vested in the President. On the declaration being made the executive authority of the Union becomes enlarged so as to enable the Union to give directions to any State to observe such canons of financial property as may be specified in the directions and such other direction as the President may deem necessary for the purpose (Art. 360).(f.n…..- power not used upto 1990) (c)As has been already seen, even apart from emergencies, the Indian Constitution (Art 249) empowers the Union Parliament to assume legislative powers (though temporarily) over any subject included in the exclusive State List by a simple resolution of 2/3 of the members present and voting in the Council of States (i.e., the upper chamber of Parliament itself) that such legislation is necessary in the ‘national interest’. It is true, the Council of States contains representatives of the States, but owing to inequality of State representation, it is practically the majority in one of the Houses of the national legislature who would be competent to override the normal distribution of powers as laid down by the Constitution. Of course, under the Canadian Constitution, the Judiciary has helped the Dominion Parliament to legislate on provincial matters when they assume a national importance owing to emergency or similar circumstances having a nationwide repercussion; “ some matters, in their origin local and provincial, might attain such dimension as to affect the body politic of the Dominion and to justify the Canadian parliament in passing laws for their regulation or abolition in the interest of the dominion………….”(f.n….- A.G. for Ontario v. A.G. for Canada,(1896) AC 332 (361). See also A.G. for Ontario v. Canada Temp. Federation, (1946)50CWN 534(538)(PC))(f.n….-U.S v. S.E. Underwriters Association (1944)322 US 533) But our Constitution goes further and empowers the Federal Legislature itself to directly take u a State matter upon its own determination that such assumption of State power is ‘necessary or expedient in the national interest’. The Judiciary has no say to as to the existence of national interest in such a case. (d)More unique is the power of the Union to assume to itself the executive and legislative powers of the State whenever the President is satisfied from the report of the Governor of the State (who is appointed by the President, as already noticed) that the Government of the State cannot be carried on according to the provisions of the Constitution (Art 356). It has no connection with the existence of any ‘emergency’. It has already been pointed out that this extreme penalty may be imposed on the State if it fails to carry out any direction given by the Union. (Art 365).

Such a form of unilateral action to subvert the federal system has no precedent under any federal Constitution. From the federal standpoint, this is also anomalous in as much as the Constitution-makers did not consider it necessary to provide for any remedy whatever for a similar breakdown of a constitutional machinery at the Centre. Again, the power to suspend the constitutional machinery may be exercised by the President, not only on the report of the Governor of the State concerned but also suo motu, whenever he is satisfied that a situation calling for the exercise of this power has arisen. It is thus a coercive power available to the Union against the units of the federation.(f.n….- Power used 81 times in 40 years) Though there is a division of power between the Union and the States, there are provisions for control by the Union both over the administration and legislation of the States. Legislation by a State shall be subject to disallowance by the President, when reserved by the Governor for the consideration of the President (Art 201). Again, the Governor of a state shall be appointed by the President of the Union and shall hold office ‘during the pleasure’ of the President (Arts. 155-6). Both these ideas are repugnant to the Constitution of the United States of or Australia, but exists under the Canadian Constitution.

Conclusion Its meaning and essence focussing on the characteristics and salient features of Indian federalism. Federalism implies collective governance through: (i) formation of states and territorialisation of federal-local administration in such a manner as to promote closer contact between people and government; (ii) distribution of federal powers on a noncentralised basis; and (iii) creation of the institutions of shared rule. Indian federalism is characterized as ‘quasi-federal’ with an in-built tendency to centralise under certain circumstances. The legislative and executive authority is partitioned between the states and the centre by the Indian Constitution. Though India is a union of states, no unit possesses the right to secede and are governed by a single constitution. It is only under unusual circumstances (like an emergency) that Indian federalism assumes the characteristics of a unitarian polity. There are two broad types of centralisation of federal powers— circumstantial and consensual in order to protect the units of the federation from external aggression, maintain the Constitution, protect the integrity of the nation and take the union out of financial crises. Federal powers are distributed between the states and the union on the basis of territoriality and specification of subjects with matters of local interest like public disorder, police, agriculture, sanitation, fisheries, sales tax being put under the state list. Subjects like foreign affairs, defence, currency etc are put in the union list. Over the years, federalism in India did exhibit a strong centralising tendency, encroaching upon the subjects originally assigned to the states enhancing its domain through various means. The Report of the Sarkaria Commission is considered an effort to provide resilience to the successful working of the federal system. The union type federal polity is considered essential for India but the Commission recommended transferring some of the union’s functions to the state and evolving transparent norms to implement some of the controversial federal provisions. Federalism in India is perceived as an instrument of peoples’ empowerment and to that extent and as a means of nation building it has been functioning successfully in building a federal union.

Bibliography 1. Constitutional law of India – dr. J.N.Pandey 2. Indian constitutional law – Prof. M.P.Jain 3. The Constitution of India – P.M.Bakshi