FEDERALISM: CATHARSIS IN INDIAN DEMOCRACY
The abrogation of Article 370, has once again brought the debate on the federal character of the Indian Constitution in the spotlight. Does the ending of the special status of the state of Jammu and Kashmir unilaterally by the Parliament is a blow to the principles of federalism? Based on power-sharing between different levels of government, the states can be categorised into federal states and unitary states. For the maintenance of the unity of a nation and the inclusion of different regions with their distinct culture, various countries during the 20th Century adopted the federal system. The driving force behind Federalism is the sharing of powers between different levels of government. Generally, the power is shared between the national government and the State government but there may be a local government within a state. The objective behind it is to have maximum participation of the people in the governance and decision making, and also, to include various minority groups so that they don’t feel marginalised. The unity of a country can be best assured when the citizens have political freedom and they identify themselves with the country. This can be ensured if there is greater participation of the citizens in the political system of the country. The USA is a model federal state, and in the past, owing to the ambiguity of the ideals of the extant confederation[i]- the need to inculcate federal ideas into the constitution was felt. In 1787, the USA became the first federal state, and for the first time in modern times, the concept of federation emerged
The word federation was derived from the Latin term ‘Foedus’ meaning ‘treaties’ or ‘agreements’. The federation is formed by a treaty or agreement. The agreeing states give some of their legislative powers to the federal government. There is no single definition for the term federation and there is ambiguity as to the meaning of the term. According to Prof. Wheare: “…the systems of Government embody predominantly on division of powers between Centre and regional authority each of which in its own sphere is coordinating with the other independent as of them, and if so is that Government federal?”[ii] According to Dicey: “Federalism means the distribution of force of the state among a number of coordinate bodies each originating in and controlled by the constitution.”[iii] The concept of Federalism not always pertain to the Centre-state relations but is a system that ensures the larger participation of the people.
The British ruled their colonies with tight grip having a central authority to overlook the functioning of the colonies and India was no exception. The British ruled India with full centralised control till the early 20th century and due to changing dimensions in world politics, better awareness about human rights, and the ascent in political voice, the people of the colonies started raising their voices for a greater amount of autonomy and accountability. Until 1935, the British ruled India with a unitary system of government, but the Government of India Act, 1935 introduced the federal system and for the first time, the term federalism was legally used.[iv] When the Constituent Assembly was formed after the Cabinet Mission Plan, the framers agreed for a model federal state with the Union government having power over foreign affairs, defense, and communications.[v] This was agreed upon keeping in mind the diverse groups, the vast size of the Indian state, and also the popularity of federalism for pluralistic countries. This all changed when the country was divided into two based on religion. And, the British along with the policymakers of Pakistan used the mechanics of the Mountbatten plan to carve a new state from the existing Indian subcontinent. The members of the Constituent assembly then decided to have a federal form of government with a strong Centre and therefore many political scientists have referred India as a quasi-federal country. Renowned constitutional expert Granvin Austin has referred to India as a cooperative federal-state wherein a strong Centre is present and the states are administrative agencies for central policies.[vi]
Federalism is an integral part of the Indian Constitution where both the Centre and the states are co-operative, independent units and they derive their powers from the Constitution itself. Unlike the USA, India is not a model federal state as in the case of India the unitary state was turned into a federal one by giving some powers to the states. Article 1 (1) of the Constitution describes: “India, that is Bharat, shall be a Union of States.” The framers of our Constitution used the word ‘union’ and not federal and an interesting fact is that the term federal or federalism is not there mentioned anywhere in the Constitution. This was explained by Dr. B R Ambedkar as the Indian federation was not a result of any treaty and the states have no right to secede from the Union and the federation is Union because it is indestructible.[vii] Despite some unitary features of our Constitution, it is marked by traditional features of a federal state, namely, written Constitution, the supremacy of the Constitution, an independent judiciary, bicameralism, and a rigid process to amend the basic features of the Constitution. The Supreme Court upholds the supremacy of the Constitution and also, it interprets the Constitution and can hold any law ultra-vires if it is against the basic tenants of the Constitution. It also has original jurisdiction over disputes between the Centre and states, and between two states. The division of powers is there in Part XI with schedule VII of the Constitution. Schedule VII contains three lists in which the subjects are mentioned, which provide for the division of powers between vertical levels of government. It contains the Union list, State List, and Concurrent List and, both the Union and the states can make laws on the subjects of Concurrent List. For more inclusiveness and decentralisation which is an important objective of the Federal State, the Parliament passed the 73rd and 74th Constitutional amendments which provided for the third tier of government. The Panchayats and the Municipalities were given constitutional recognition and this form of federalism is unknown to other countries. [viii]
The framers of our Constitution wanted to adopt a federal system, but keeping in mind the various dangers and threats to a new nation from both inside and outside, they ultimately went with federalism but with a strong Centre like that of Canada. The Indian Constitution has some notable unitary features too, namely, single Constitution and single citizenship, unlike the USA, the Centre has overriding powers in case of conflict over the authority in the Concurrent List. At the same time, the residuary powers are also left with the Centre and all this has paved for a strong Centre. Unlike the USA, the Indian federation is “an indestructible union of destructible states” and on the contrary, the USA is “an indestructible union of indestructible states”. The Parliament without any consultation with the state governments can change the area, boundaries, or the name of the states. Also in the Council of States i.e. Rajya Sabha doesn’t have equal representation from the states and the representation is based on the population of that state and there is also no requirement of domicile in the state concerned getting elected.[ix] The State List doesn’t provide full authority to the states as this can be legislated by the Parliament if the Rajya Sabha passes a resolution in the national interest and this can be done even when any kind of emergency is not in force.[x] Also, all the important subjects are either in Union List or the Concurrent List which makes the Centre stronger.[xi] During an emergency, the Federal structure of the Constitution is changed to a unitary one without any Constitutional amendment. Article 356 which provides for President Rule in states is the most raped article of the Constitution, and during an emergency, the Union Parliament is empowered to make laws concerning matters under the State List.[xii] The Governor, who is the head of the state, is appointed by the President and is empowered to reserve a bill for the consideration of the President and the President has an absolute veto over the same. Deferring from federal characteristics, the Indian Constitution has provided for an integrated judiciary, hierarchically, with the Supreme Court at the top and the High Courts below it for the respective states.
The Supreme Court of India is the highest judicial body and has original and absolute jurisdiction in disputes between different levels of government. It is also the body that upholds the sanctity of the Constitution and is the one that interprets the Constitution. The stand of the Indian judiciary has been always wavering on this issue of federalism in the Indian Constitution. In one of the earlier judgment in Automobile Transport v. The state of Rajasthan,[xiii] a seven judges’ constitutional bench of the Supreme Court held that the Indian Constitution is federal. But the judgment in State of West Bengal v. Union of India,[xiv] the Supreme Court went totally against the earlier judgment and neglected the federal features of the Indian Constitution but a sense of relief is in the dissenting judgment of Justice Subba Rao held that the Indian constitution is federal. In one of the landmark judgment In S.R. Bommai v. Union of India,[xv] a nine-judge bench enunciated that the Indian Constitution is federal. The court held that: “.....The constitution provides more power to the Central government but the state is also supreme within its spheres”…The constitution of India is differently described, more appropriately as ‘quasi-federal’ because it is a mixture of the federal and unitary elements, leaning more towards the latter but then what is there in a name, what is important to bear in mind is the thrust and implications of the various provisions of the Constitution bearing on the controversy in regard to scope and ambit of the Presidential power under Article 356 and related provisions.” Of late the Supreme Court has recognised several federal features of the Constitution and several judgments have concurred with the same stand and in one of the recent judgments in UCO Bank v. Dipak Debbarma,[xvi] the SC has recognised the federal characters of the Constitution.
Despite many unitary features, our Constitution has been called quasi-federal as it possesses almost all features of a federal Constitution. The concept of federalism has been evolving since the time of Independence. We have come a long way from where one party ruled both at the Centre and the states and now, regional parties also play an important role in national politics. The coalition governments in the 1990s have helped to strengthen the concept of federalism in India. The challenges to federalism in India are far from over as it continues to be plagued by issues including regionalism and language conflict as the demand for creation for states based on distinct identity has been on the rise. The formation of the state of Telangana is a blow to the basic principles of federalism as the established practice of taking consent from the states was ignored.[xvii] One of the bigger problems to the Indian federalism is the office of the Governor as sometimes conflict between the elected government and the Governor. The losers are none other than the people of that state in the power tussle as we are seeing nowadays in the state of West Bengal.
The need of the hour is that of cooperative federalism where the achievement of the objectives should be the goal of both the Centre and the states irrespective of their differences. The people have elected the government at three levels and each of them is accountable to their respective electorates and their sole motto should be the welfare of the people. The conflict between different levels of government is good for Indian federalism but the conflict shouldn't be spiralling out of the control and to ensure this timely intervention and speedy disposal of the conflict should be done. The federalism in India has been constantly evolving since the commencement of the Constitution and will continue to do so according to the changing dimensions in the politics of India.
[i] ‘Confederation’ may be used to describe a form of association between governments whereby they set up a common organization to regulate matters of common concern but retain to themselves, to a greater or less degree, some control over this common organization. A confederation is loose association of two or more sovereign states and it allows the states to secede. [ii] K.C. Wheare, Federal Government 33 (Oxford University Press, London, 1963). [iii] Durga Das Basu, Comparative Federalism 5-6 (Wadhwa, Nagpur, 2008) [iv] Available at: www.lawyersclubindia.com (last visited on June 29, 2020). [v] XI, Constituent Assembly Debates, 657-58. [vi] Granville Austin, The Indian Constitution, 1966, p.187 [vii] Constituent Assembly Debates, Vol. VII, p. 43. [viii] Brij Kishor Sharma, Introduction to constitution of India 42 (PHI, Delhi, 2011). [ix] AIR 2006 SC 3127. [x] The Constitution of India, Article 249. [xi] Alice Jacob, “Centre-State Governmental Relations in Indian Federal System” 10 (4) Journal of Indian Law Institute (1968). [xii] The Constitution of India, Article 356 [xiii] AIR 1962 SC 1406. [xiv] AIR 1963 SC 1241. [xv] AIR 1994 SC 1918. [xvi] (2017) 2 SCC 585. [xvii] Jayaprakash Narayan, “A Challenge to Indian Federalism” The Hindu, Oct. 28, 2013.