Nature Of A Federal System Ii

Nature of Federal System II

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India a Union of States  Article 1(1) – India that is Bharath, shall be a Union of States  Dr. Ambedkar – Union of India –> Federal in structure  

Federation not a result of agreement of the units Component units have no freedom to secede from it

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Different types of Federal Constitutions in the Modern World  Point to be considered – how many federal features  Federal and United  Not similar to American Federalism  Functional approach

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Indian Constitution features

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Essential Features of Federal Polity: 1) Dual Government  National and State level  Under Central Constitution  No power to secede 2) Distribution of powers  Between Centre and State 3) Supremacy of Constitution  Every power legislative, executive and judicial derived from it 4) Authority of courts  Vests the courts with the final power to interpret our political system, possesses all the above features.

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Peculiar Features of Indian Federalism 1) Mode of formation:  USA –> voluntary agreement  Canada –> imposed by British Statute  India –> Government of India act, 1936: “By creating autonomous units and combining them into a Federation by one and the same act” Not a result of agreement. 2)

basically

Federal

with

Unitary

Position of States in the federation

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

1) 2) 3)

4)

In United States of America, States were already sovereign and this was ensured and this was not the case in India USA INDIA Residuary power: States Union States have liberty to Not so, except Jammu and draw own Constitution Kashmir Amendment of Constitution: States to give consent Carried out by Union State legislation not State legislation controlled controlled by Union by Union

5) No State can secede b. Boundaries cannot be changed to form new States without consent of State legislature Equality of representation Nil a.

6) 7)

3)

Nature of Polity USA 1) Dual citizenship – State and Union 2) Division of public services

3)

Federal Courts –> Federal law State court –> State law Dual system of laws

No State can secede Opposite

No equality of representation Sikkim admitted as associate State and then into Union

INDIA Only Indian citizenship No division – one banner – IAS (Indian Administrative Services) – operate for Centre and State Supreme Court will administer both Union and State law No dual system of courts 3

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4)

Opposite

Machinery Accounts integrated

for Election, and Audit

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Not so

6)

–

7)

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Transfer of powers: Union to State, State to Union In case of emergency – total central control Ordinary times – directions by Centre to State Normal times – Federal system is given strength of a unitary system a) Strong Central control over legislations b) Union to give directions to State and if State does not obey Centre to supersede State c) i. President to assume State legislative and executive under Article 356 ii. above power can be exercised by a president sou motu

Critique of Federal System  Prof Wheare “A system of Government which is Quasi Federal... a unitary State with subsidiary federal features rather than a federal State with subsidiary unitary features” “in the class of Quasi federal Constitution it is probably proper to include the Indian Constitution of 1950...” 

Prof. Alexander “The Constitution of India is neither purely federal nor purely unitary but is a combination of both. It is a Union or composite State of a novel type. It enshrines the principle 4

that in spite of federalism the national interest ought to be paramount”

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“Extremely federal”

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“Federation with strong centralising tendency”

Working of a Federalism in India  An opinion on one side:  Federal features have withered away due to strong unitary bonds  Very little of federalism is left due to  Overwhelming financial power of Union and dependence of States for grants  The effects of Planning Commissions on concurrent power  Above not correct on principle  Secured uniform development of State  Strengthened national Government – cooperative government  Central control has kept the States in control and federalism exists  In reality because of co-existence of both governments  New regions constantly demanding Statehood  Strong agitation for greater financial power of States Setting up commission (one man) – J. Sarparia, March 1983 – submitted report in 1988 In reality our system normally works as a federal system with converting it into a quasi-federal or unitary system under special circumstances

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Conclusion “Constitution of India is neither purely federal nor purely unitary but is a combination of both. It is a Union or composite State of a novel type” “Enshrines the principle - in spite of federalism the national interest ought to be paramount”

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