Indian Federalism: Examining The Debate

Indian Federalism: Examining the debate ♣ Amartya Bag What is a federal state? To begin with, one should know what a federal state is. The concept of federal state has evolved over period, with the political experiments it was clear that the some issues should be handled best by the national government, while some could be handled by the regional governments who can handle the issues of local interest.1 Federalism is a mechanism for effective governance of a union to “reconcile unity with municipality, centralisation with decentralisation and nationalism with localism”.2 The modern agreed definition and concept of federalism has been more or less derived from the structure and features of the American Constitution.3 K.C. Wheare defined federal state as a state which has a “division of powers between general and regional authorities, each of which, in its own sphere, is co-ordinate with the others and independent of them”.4 The sphere of the general government and the regional government is defined and limited; both the governments have supreme powers and no way the regional government is subordinate to the general government.5 The state can be called a co-ordinate if the states can directly operate the command on the citizens without any approval of each other. The presence of a single, indivisible yet composite federal nation is important, however merging into a uniform nation giving all the sovereign power of the provincial government to the general government is not an option.6 There can be a concurrent list, in which one government can override the power of the other, but the main test of federalism lies in the control,

♣ Amartya Bag is a 3rd Semester student of B.A. LL.B., KIIT Law School, Bhubaneswar. 1 See D.D. Basu, Comparative Federalism; Wadhwa and Company, Nagpur. 2nd ed. 2008; p 1-2 2 Ibid.; p. 5-6 3 See, K.C. Wheare, Federal Government; The English Language Book Society and Oxford University Press, London. 4th ed. (2nd impression 1971); p. 1, See D.D. Basu, Comparative Federalism; See also infra note 16; p. 255 4 See, K.C. Wheare, Federal Government; The English Language Book Society and Oxford University Press, London. 4th ed. (2nd impression 1971); p. 33 5 Supra note 4; p 2 and S.E. Morison, History of the United States, Vol.1; p.87 as cited in K.C. Wheare, Federal Government 6 See Ivo D. Duchacek, Comparative Federalism; Hold, Rinelarts and Winston Inc, London, 1970; p. 192

actual or potential, of atleast one subject in which only one of the government in superior and the other is not.7

The federal nature of a state necessarily need not be written explicitly in the Constitution8, the main thing to take into consideration is that the Constitution should be regarded as Supreme and the presence of a written Constitution.9 Some of the Constitutions like the Constitution of India, though the federal principles are not so accurate, are not less important not to be considered as a federal state. They have been named as quasi-federal states or as unitary with federal principles, it does not prevent the Constitution from being predominantly federal in practise.10

In the early days of the Federal states like USA, Canada and Australia, the main prevailing concept was of “competitive federalism”, the rivalry and disputes between the general government and provincial government were significantly high.11 There was a “brotherhood of tempted rivalry”; inspite of the rivalry and conflict the states were aware of their mutual dependence.12 However, with the increase in inter-nation wars, rise in concept of social welfare state and emergence of modern communication technologies the concepts of competitive federalism gives way to “co-operative federalism”. Birch defined co-operative federalism as “... the practise of administrative co-operation between general and regional governments, the partial dependence of the regional governments upon the payments from the central governments, and the fact that the general governments, by the use of conditional grants, frequently promotes developments in matters which are constitutionally assigned to the regions.”13 In the twentieth century, the concept of federalism has risen to be a scenario of mutual co-operation between the 7

See supra note 4; p. 75 The Constituiton of USA doesn’t mention the word ‘federal’ in the constitution, though the word ‘confederation’ appears only once in Article 1 Sect. X which states that “no state shall enter into any treaty, alliance or confederation”. 9 See supra note 4; p. 55 10 See supra note 4; pp. 17-20 where K.C. Wheare discusses about the Canadian Constitution, which though predominantly Unitary in nature works as a federal state. 11 M.P. Jain, Indian Constitution Vol. I; Wadhwa and Co., Nagpur. (5th ed.) 2003 p. 825 12 See supra note 6; p. 192 13 A.H. Birch, Federalism, Finance, and Social Legislation in Canada, Australia, and the United States, p. 305. As cited in Granville Austin, The Indian Constitution: Conrnerstone of a Nation; Oxford University Press, New Delhi. 1966 (13th impression); p. 187 8

two governments, with a centralist trend.14 However, a strong central government doesn’t necessarily mean that the regional governments are weak which works as administrative agents for caring out the policies of the central government.15

Analysing the Propositions in State of West Bengal v. Union of India and “Third Sense of Federalism” by Prof. P.K. Tripathi

First, I would like to argue that there is not one proposition which justifies each other but there are two contrary propositions, though they started out in the same direction but they final result or conclusion are completely different.

In the first proposition given in the case of State of West Bengal v. Union of India, the argument given at the bar was that “The Constitution having adopted the federal principle of government the States share the sovereignty of the nation with the Union, and therefore power of the Parliament does not extend to enacting legislation for depriving the States of property vested in them as sovereign authorities.”16 However, the Honourable Court held that the Indian “…Constitution which was not true to any traditional pattern of federation”.

The Sinha, C.J., argued that in India there was

withdrawal or resumption of all the powers of sovereignty into the people of this country and the distribution of these powers save those withheld from both the Union and the States by the Constitution. He continued saying that the legal sovereignty of the Indian nation is vested the people of India and the political sovereignty is distributed between, the Union of India and the States with greater weightage in favour of the Union.17 The judge concluded that “…it would not be correct to maintain that absolute sovereignty remains vested in the States”. On examining the various provisions of the Constitution, one can conclude that the distribution of powers - both legislative and executive - does not support the theory of full sovereignty in the States so as to render it immune from the exercise of legislative power of the Union Parliament. 14

See supra note 9 Granville Austin, The Indian Constitution: Conrnerstone of a Nation; Oxford University Press, New Delhi. 1966 (13th impression); p. 187 16 State of West Bengal v. Union of India, AIR 1963 SC 1241 17 Ibid. 15

The proposition given by Prof. P.K. Tripathi as the third sense of federalism which he called as the “mythical sense of federalism”18 describes that the Constitution “...under consideration does not satisfy the essential and indispensable requirements of federalism…and the use of the expression federal or federalism, in this third sense, is really speaking spurious .The conscious object or purpose of this spurious use is…to metamorphose a non-federal constitution into a federal one.”19 The Constitution under consideration may not have the requisite features so that it may be considered as a Federal constitution, and the interferences drawn in the case of a federal Constitution is not available. However, from time to time judges who are dissatisfied with the nonfederal character of the Constitution have tried to alter the very nature of the Constitution through the “tool of judicial review”. They make a prior baseless assumption of having a federal Constitution and attack on the provisions which are contrary to the principle of federalism.20 Deviated from the actual reality they try to create a myth, and argue to make the myth a reality through judicial interpretation.21 The proposition given in the case of State of West Bengal, substantially defers from the proposition given by Prof. P.K. Tripathi. In the above case, the majority judges did not act entirely on the basis of the “mythical sense of federalism” as put forward by the Prof. P.K. Tripathi. Though the argument that the “Indian Constitution is federal” has been justified as a myth in the above case. But the later part of the argument by Tripathi has not been justified. The judges did not based their claims on the basis of the India to be a truly a federal state and tried to prove its federal character and give judgement for the state, rather they rejected the claims of the state that they shared sovereignty with the Centre.22 However, the minority dissenting decision by Subba, J., said that “…the political sovereign is the people of India and the legal sovereignty is divided between the constitutional entities i.e., the Union and the States, who are juristic personalities

18

P.K. Tripathi, Federalism: The Reality and the Myth, Journal of the Bar Council of India, (August 1974); p. 253 19 Ibid; p. 252-253 20 Ibid; p. 253 21 Ibid; p. 265 22 See supra note 15

possessing properties and functioning through the instrumentalities created by the Constitution. …Within their respective spheres both in the legislative and executive fields they are supreme; their inter se relationship is regulated by specific provisions.”23 The majority decision of West Bengal case has been criticised by many of the authors, judges and scholars.24 In the case of State of Rajasthan v. Union of India,25 Beg, C.J. considered the Indian Constitution as “more unitary than federal” and have the “appearance” of a federal structure. He also said that, “In a sense, therefore, the Indian union is federal. But, the extent of federalism in it is largely watered down by the needs of progress and development of a country which has to be nationally integrated, politically and economically coordinated and socially, intellectually and spiritually up-lifted.”26 The argument of that Indian Constitution is a federation is nothing but a myth is again proved.

There have been incidents when the third sense of federalism as explained by Tripathi has been applied to attack the Indian Constitution as violation of federal principles. Demand has been raised from time to time for re-ordering of the Indian federalism due to rise of multiple political parties in the regional level, who want to improve their own position.27 The Government of Tamil Nadu appointed Rajamannar Committee in 1969 to examine the entire question regarding the relationship that should exist between the Centre and the States in a federal setup, taking into consideration the provisions of the Indian Constitution and suggest amendments to it for providing greater autonomy to the state Governments.28 The committee made a prior assumption of India being a federal state and argued on the basis of this, and proposed amendments to the Indian Constitution. The report of the committee “presented a classical illustration of the use of the term

23

See supra note 15 The Case decision has been criticised by D.D. Basu, Comparative Federalism; p. 78 and 133, H.M. Seervai, Constitutional Law of India, Vol. I, Universal Law Publishers, (4th ed.); p. 283, 25 AIR 1977 SC 1361 26 Ibid; p. 1382 27 M.P. Jain, Indian Constitutional Law, Lexis Nexis Butterworths Wadhwa, Nagpur (5th ed.) 2008 reprint; p. 725 28 Report of the Centre-State Relations Inquiry Committee, Government of Tamil Nadu, 1971; p.1 as cited in P.K. Tripathy, Federalism: The Reality and the Myth 24

‘federalism’ in the mythical sense to accomplish the desired end of converting a nonfederal constitution into federal one”.29 Is India a federal state? The framers of the Indian Constitution were aware of the changing concepts of functional realities in other Federations, the historical background of India and the special needs of India have framed the Constitution according to the changing need of the dynamic society.30 There are provisions which don’t make Indian Constitution to be a federal in the sense of American Constitution. But merely because the Centre is having more power to some extent than the states, it doesn’t render the Constitution not to be called a federal one as no two federal constitutions are identical, they can vary.31 Though India have external sovereignty, the within India, neither the Union nor the states enjoys [absolute] internal sovereignty due to the division of powers between the Union and the States in which both the Governments have plenary power within their assigned sphere.32 Though the Union Government has been assigned the matters which are of national importance, the matters concerning the States are no way subordinate, but they are of a different importance than the Union.33 There exist certain provisions in the Constitution which are considered to be going against the principle of federalism. The power to alter the boundaries of the state lies with the Centre, however in practice the states themselves has forced the Centre to redraw the boundaries of the state. The emergency provisions in Article 356, is considered to be a deviation from the principle of federalism; however the provision is meant for temporary and can be used only under certain exceptional situations under certain restrictions created through judicial intervention.

29

See supra note 18; p. 273 Ibid.; p. 728 31 Ibid. 32 H.M. Seervai, Constitutional Law of India, Vol. I, Universal Law Publishers, (4th ed.); p. 296 33 Ibid; p. 296-297 and See also the judgment by Gwyer, C.J. in In re The C.P. & Berar Act, 1938, (1939) F.C.R. 18 at p. 44 30

There has been a change in the construction of the nature of Indian federalism, in the case of S.R. Bommai v. Union of India, it has been held that “Democracy and federalism are essential features of our constitution and are part of its basic structure”.34 The courts through their liberal interpretation of the Constitution have helped in extending the legislative fields which otherwise can be read rigidly to encroach upon the entry of the other government. The courts have played the significant role as the balance for harmonious construction of the entry to maintain the Centre-State relation.35

The use of the term “quasi federal” which is generally used in connection with Indian Constitution is quite vague and unclear about the deviation or conformity with the so called pure federal model.36 There is no clear cut distinction or characteristics of a quasifederal constitution. There is quite chance that the term can be abused to construct a negative impression of being a federal Constitution, making the “...mythical use of the expression ‘federal’ for accomplishing the chronic end of snapping the strength and authority of the Union.”37

Conclusion There is a clash between the “orthodox school” of federalism and “dynamic progressive school” of federalism. While the “orthodox school” consisting of K.C. Wheare, Duchacek, Sawer, P.K. Tripathi, C.J. Sinha have tested the existence of federal principle on the model of American Constitution and emphasised on the existence of a “competitive federalism”. The “dynamic progressive school” of federalism which consist of the modern day Constitutional experts like A.H. Birch, M.P. Jain, Seervai have stressed on the concept of “co-operative federalism”.

The orthodox model of federalism is rigid and has no space for modification, taking into consideration the modern day scenario. The deviation from the model American Constitution is considered as a violation of federal principle. The third sense of 34

AIR 1994 SC 1918, p. 1977 See supra note 27; p. 725 36 See supra note 27; p. 730 and See also the article by P.K. Tripathi; p. 276-277 37 See supra note 18; p. 277 35

federalism as explained by Tripathi makes a basis on the orthodox rigid model of federalism and later argues on the deviation from this model to turn a so called non pure federal state into a federal one. The assumption made by Tripathi, who seems to belong to the orthodox school is just a rigid one, and in his mind is the concept of “dual competitive federalism”, which is outdated and taking into consideration the Indian Constitution though have certain features which can be called as a unitary trend, but actual in practise the Indian Constitution works more as a federal state.

The Indian Constitution as argued by the “dynamic progressive school” of federalism is a model of “co-operative federalism” where the states don’t compete with the Union. They also take into consideration the changing need of the society, the historical background and take into account the actual practise of governing to ascertain the nature of the Constitution.