The term Federalism derives its roots from the Latin term “Feuds” which means ‘treaties or agreement’. It is a system of decentralization and structure of the division of legislative and executive power between the Centre and the provinces. In its most basic sense, federalism connotes a model of two or more tiers of the Government.
As stated by Dicey in Law of the Constitution[1] and cited in Kesavananda Bharati v. State of Kerala and Anr.–
“A federal State derives its existence from the Constitution, just as a corporation derives its existence from the grant by which it is created. Hence every power, executive, legislative or judicial, whether it belongs to the nation or the individual States, is subordinate to and controlled by the Constitution.”[2]
Any discussion on the model of federalism followed in India would perhaps be poorly directed or incomplete without the words of Dr. B. R. Ambedkar in his speech in the Constituent Assembly on 25th November 1949, stating, in the defense of centralization of power-
“The basic principle of Federalism is that the Legislative and Executive authority is partitioned between the Centre and the States not by any law to be made by the Centre but by the Constitution itself. This is what the Constitution does. The States under our Constitution are in no way dependent upon the Centre for their legislative or executive authority. The Centre and the States are co-equal in this matter. It is difficult to see how such a Constitution can be called centralism….it is, therefore, wrong to say that the States have been placed under the Centre.”[3]
Therefore, the principal characteristic of federalism in India is that legislative and executive power is divided between the Union and the States by the Constitution itself. The Indian Constitution is federal in form with its characteristics of “supremacy of the Constitution, division of power between the Union and States and the existence of an independent Judiciary”[4]
Role of Judiciary
As society changes, so do the laws. The law arises out of the need of the society and it strives to serve that need. The role of adapting the law to better suit the time is done by the judiciary. The Constitution has further entrusted the judiciary with the task of construing the provisions of the constitution and of safeguarding the fundamental rights.
Needless to say, the Judiciary in performing its constitutional duty has strengthened the constitutional provisions in India, including Federalism.
Nature of Indian Federalism
The nature of Indian federalism can be stated in the words of Shri Brajeshwar Prasad,
“I do not consider this Draft Constitution to be purely Federal in character.
It is partly federal and partly unitary and more unitary than federal in character.”[5]
In the case of State of Rajasthan v. Union of India[6], a seven-judge Bench of the Supreme Court observed that while there is an appearance of a federal structure in our constitution but its operations, judging by the content and use of its provisions are more unitary than they are federal.
The Court went on to remark that although the Indian union is federal, the extent of its federalism is largely watered-down because of the needs of the progress and development of the country.
The power is divided between the Centre and the States but there is no doubt that the Centre is vested with considerable power over the states. Nevertheless, one cannot encroach upon the functions of the other unless the Constitution provides for the same. The Indian model of federalism thus comprises both unitary and federal components.As observed in the case of State of West Bengal v. Union of India, The Constitution has adopted a federal structure with a strong bias towards the Centre. The states are free and practically autonomous to form their laws on subjects given under the State List while the Centre remains strong to ensure the unity of the nation.[7]
This nature can be seen through article 1 of the Indian Constitution itself, which states that:
“India, that is Bharat, shall be a Union of States.”
Article 2 allows the Parliament to admit or establish new states while Article 3 confers the power to form new states and alter areas, boundaries, or names of existing states.The territorial integrity of the States is not guaranteed[8]and the constitutional provisions show that regarding the question about admission or establishment and formation and alteration of states, the Parliament is paramount.[9]
Pertinent to note here is that the division of legislative power by the Constitution favours the Union more than the states. Part XI lays down the relations between the Union and the States.The constitution provides for a three-fold distribution of legislative power between the Union and the States, made by the three lists namely – Union List, State List, and the Concurrent List. Article 246 confers on the Parliament the exclusive power to make laws with respect to matters contained in the Union List, on the State Legislatures the power to make laws with respect to matters contained in the State list and finally both the Parliament and State Legislature to make laws on matters contained in the Concurrent List. Further, Residuary powers are vested with the Union.[10] In case of a dispute on any matter on the Concurrent List, it is the Central laws that prevail.
While stating the nature of Indian Federalism, the Supreme Court of India highlighted the difference between the American and Indian models, stating that the American states were independent, sovereign states which came together to form a federation and thus, the boundaries of these states cannot be altered by the Federal Government. However, in the Indian model, the states were not independent but were formed by Article 1 of the Indian Constitution. Their boundaries can, therefore, be altered by the Parliament. [11]
Indian Federalism is a model of a ‘holding-together federation’ rather than a ‘coming-together federation’ like the United States. The legal sovereignty of India is vested in the people of India while political sovereignty is distributed between the Union and the States.
Thus, to apply the meaning to the word ‘federation’ or ‘autonomy’ used in the context of the American Constitution, to our Constitution will be totally misleading.”[12]
Fundamental features that lay at the core of the constitution and which constitute its ‘basic structure’ like federalism are beyond the amendment power of the parliament.
Due to the nature of Indian Federalism, it has often been categorized as quasi-federal. In Shamsher Singh & Anr. v. State of Punjab,it was observed thata Parliamentary-style quasi-federalism was accepted by the Drafting Committee while rejecting the substance of a “Presidential-style Executive”.[13]
Judicial Federalism in the United States
In the journey from a Confederation to a Federation, there is little disagreement about the fact that the oldest federal constitution of the world belongs to the United States of America. States enjoy sovereignty over their domestic matters, governed by their constitutions and set of laws.
The principle of dual sovereignty is also seen through their judicial federalism, under which both the federal Government and the state governments have their system of courts. The Supreme Court of the United States has federal jurisdiction contained under Article III, Section II of the American Constitution while the States have jurisdiction over matters not contained under the exclusive jurisdiction of the federal courts.
The US model of Judicial Federalism is different from that of India which is a single integrated system. The US has two sets of courts, Federal and State functioning under the Constitution of the United States of America.On the other hand, the Supreme Court of India is the apex court having pan-India jurisdiction, followed by 25 High Courts having jurisdiction over a state or union territory or a group of states or union territories and various district and subordinate courts. The courts are also aided in their functioning by various quasi-judicial tribunals.Both the Supreme Court and the High courts interpret the union and state laws and adjudicate disputes.
Conclusion
Ours is a land of multifaceted diversity. The decentralization of power allows us to better appreciate this diversity while at the same time ensures the sovereignty of the Indian Union. Federalism forms a part of the basic structure of the Indian Constitution, which is an organic, living document. It is federal in character but unitary in spirit.
In the words of Shri Jagat Narnia Lal, addressing the Constituent Assembly of India on 25th of November 1949,
“I consider this Constitution to be both Federal and Unitary.
It is a Federal Constitution, yet it is Unitary. It is a Unitary Constitution, yet it is Federal.”[14]
By-
Bhavika Sharma
Amity Law School, Noida
[1] Law of the Constitution A.V. Dicey p. 144
[2]Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr, AIR 1973 SC 1461
[3]Constituent Assembly Debates Volume XI, Friday, the November 25, 1949 speech by Dr. B. R. Ambedkar, available at http://loksabhaph.nic.in/writereaddata/cadebatefiles/C25111949.html.
[4] Ganga Ram Moolchandani vs State Of Rajasthan and Ors.
[5]Constituent Assembly Debates Volume VIII, Friday, the May 20, 1949 speech by Shri Brajeshwar Prasad,available at http://loksabhaph.nic.in/writereaddata/cadebatefiles/C20051949.html
[6] 1977 AIR 1361
[7] 1963 AIR 1241
[8] Berubari Union, AIR 1960 SC 845
[9]S. R. Bommai v. Union of India, 1994 AIR 1918
[10]Union of India vs H. S. Dhillon, 1972 AIR 1061
[11]S. R. Bommai v. Union of India, 1994 AIR 1918
[12]M. Karunanidhi v. Union of India, 1979 AIR 898
[13]Shamsher Singh & Anr v. State of Punjab, 1974 AIR 2192
[14]Constituent Assembly Debates Volume XI, November 25, 1949 speech by Shri Jagat Narain Lal, available at http://loksabhaph.nic.in/writereaddata/cadebatefiles/C25111949.html
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