Authors: Sanjeev Ramakrishnan & Rishabh Rao, students at Jindal Global Law School, Sonipat, Haryana.
The Indian Constitution cannot be classified as truly federal nor truly unitary in nature. Instead, it is to be classified as “quasi-federal” because it borrows features from both the above-mentioned forms of governance. The Constitution is biased towards the central government and is also focused on furthering the interests of individual states within the country. This unique structure was adopted by the Constitution makers to tackle issues faced by other federal countries, to meet diverse needs of the population, etc. The quasi-federal structure adopted by India has been largely successful in achieving its purpose as it has helped reduce conflicts within the country and has helped ensure the unity of states. Furthermore, the country’s federal system has also allowed citizens to simultaneously embrace their national and state-based identities. However, it is important to acknowledge that India’s federal experiment has failed at times due to the arbitrary use of powers vested in the Centre by the Indian Constitution. In this paper, we discuss India’s quasi-federal structure of governance by looking into the federal and the non-federal features adopted by the Constitution. We also evaluate the performance of India’s federal experiment by discussing its successes and failures. Lastly, we suggest ways to improve the effectiveness of the quasi-federal structure adopted by the Indian Constitution.
Keywords: Constitution, Government, Federal, Quasi-Federal, Governance, Non-Federal.
The breakup of colonial empires in 1945 bolstered the proliferation of federalism as a model of governance particularly among the post-colonial new governments. The history of the theory of federalism however dates back to ancient Greek states and was popularly adopted by the United States of America (“U.S.A.”) in 1789, by Switzerland in 1843 and by a few other countries that placed emphasis on a written and rigid constitution. The framers of the Indian Constitution learnt from the experiences of these countries and, made changes to the doctrine of federalism to better suit the needs of this diverse country.
In this paper, we discuss the nature of Indian federalism and the way in which it has been structured to suit the particular needs of this diverse country, while comparing it with classical and political theorists’ conceptions of federalism. Towards the latter part of this paper, we also assess the performance of Indian federalism by looking into the challenges that have come to the fore as a consequence of the quasi-federal set up adopted by the subcontinent and suggest ways to improve the effectiveness of the said structure.
In order to form an understanding of Indian federalism, it becomes pivotal to understand the origins of the theories of federalism and, the classical notion of federalism which was intended to translate into the constitutions of the first federal states in the world. The classical theorists of federalism, while attempting to chalk out a definition of federalism, often paid attention to a salient feature regarding the division of powers between two levels of government, one being a central authority and the other being a regional authority. Lord Byrce described federal states with an apt analogy “the system was like a great factory wherein two sets of machinery are at work, their revolving wheels apparently intermixed, their bands crossing one another, yet each set doing its own work without touching or hampering the other.” Political theorists conceptualize federalism as a solution to a political problem because it connotes a division of power as opposed to monopolization or centralization. Theorists, like Riker, purport that federalism allows for enlarged or diverse political communities without the use of imperialist strategies and that “it seeks to strengthen the enlarged political community while respecting and protecting the autonomy of the constituent units.” Having laid out a conceptual base of federalism as a theory of governance, the following section of the paper compares India’s mode of governance with these theories to identify the salient features of Indian federalism and its similarities to other federal states.
INDIA AS A FEDERAL STATE
The new governments formed after 1945 were a “product of historical accidents of the ‘scramble for empire’, or of administrative convenience.” The boundaries of emerging post-colonial nations were therefore, rarely distributed equally on racial, linguistic, religious or ethnic grounds and the challenge of uniting a diverse population was bestowed on the new governments while drafting their constitutions. The makers of the Indian Constitution recognized that the simultaneity of two processes; unionization and regionalization, was necessary to support the diverse needs of the country’s population. Thus, unionization and regionalization were made the basis of formation of the Indian Union and, the hallmark of Indian federalism. It is said that a modern federation falls “somewhere between a unitary government and a loose association of sovereign states.” However, it is possible to pin down a few essential characteristics of a federal nation which India conforms to, like the supremacy of the Constitution, division of powers between the Centre and the states, adoption of a bicameral legislature in the Rajya Sabha and the Lok Sabha, and an independent judiciary. In this paper, we limit our analysis to a few noteworthy federal features of the Indian Constitution including, the supremacy and the rigidity of the Constitution and, the nature of division of powers between the Centre and the states in India.
Firstly, the supremacy of a written and rigid Constitution is an essential tenet of federalism. Any law made by the Parliament or a state legislature should be in accordance with Constitutional principles. If any statute or its provisions are in violation of the Constitution, then the particular statute or its provisions that are in violation, are invalidated and struck down as “unconstitutional.” Thus, it would be fair to say that the Indian Constitution is supreme, in that no other organ can trespass its authority and, in regards to the document’s rigidity, it can be amended only vide Article 368 with the help of a tedious process. This process is further limited by doctrines such as the doctrine of Basic Structure, which restricts the Parliament from amending certain basic features of the Indian Constitution including the Fundamental Rights guaranteed to all citizens under Part III of the Constitution. However, although the amendment procedure provided by the Indian Constitution is tedious, it is more flexible in comparison to the Constitutions of other federations like Australia and U.S.A. In India, the formal amendment of the Constitution is more of a rule than an exception. The legislators in India provided for the amendment of the Constitution to make it partially flexible because they foresaw that the amendment of the Constitution would be necessary to adapt to the contemporary standards arising from the development of science and technology, improved knowledge and the changing mindset of people. However, the process of amendment of the Constitution was made tedious to ensure that the Parliament does not arbitrarily and irrationally use the amendment power vested upon it by the Indian Constitution.
Secondly, the purpose of federalism is to bring about a division of power between the states and the Centre. India has an elaborate scheme of distribution of powers under Schedule 7 of the Constitution which contains the Union List, the State List and the Concurrent List. These lists enumerate the various functions and matters upon which the Union and the states are allowed to legislate upon, including matters like public health and sanitation, banking, etc. The Union List initially contained a total of 97 items and the Constitution-makers vested the Parliament with the exclusive rights to legislate upon any matter that falls within the purview of the Union List. The State List initially contained a total of 66 items and the respective state legislatures were given the exclusive authority to legislate upon any matter that falls within the purview of the State List. The Concurrent List initially contained a total of 47 items and both the Parliament and the concerned state government were allowed to jointly legislate upon matters that fall within the purview of the Concurrent List. Even though, as discussed in the latter part of this paper, the Centre tends to occupy a superior status in India’s governance, the Indian Constitution adheres to an integral characteristic of federalism as it mandates the distribution of powers between the Centre and the states.
These features of the Indian system of governance that classify India as a federal country, were embedded into the Constitution with the hope of propagating regional autonomy, along with a central authority to maintain a sense of unity amongst people. It was done in the best interest of the diverse population and to bring the government closer to the people. However, since India adopted certain federal characteristics, theorists like C.H. Alexandrowicz took an extremist stance and contended that India is “undoubtedly a federation in which the attributes of sovereignty are shared between the Centre and the States.” Even the Supreme Court held that India is a federal country and federalism is a part of the basic structure of the Indian Constitution. Most federal countries try and avoid a centralized form of governance as it can mirror an authoritarian government wherein the economic and the administrative power would be monopolized by only a few people. However, Indian federalism has gone against this principle and has laid emphasis towards a stronger Centre which begs the question; is India a truly federal state?
NON-FEDERAL FEATURES OF THE INDIAN CONSTITUTION
In this section of the paper, we look into the non-federal factors embedded in the Indian Constitution. The U.S.A., a country that is referred to as a “Federation”, is the oldest and one of the most prominent examples of a truly federal nation. It came into existence as a result of integration of various militarily weak units that were also economically backward states.
Primarily, it is important to address the fact that, India is referred to as a Union of States and not a federation mainly because, unlike the U.S.A., the Indian Union came into existence as a result of disintegration, wherein, the country was divided into a number of smaller units. While the formation of the Indian Union was based on concepts like unionization and regionalization, the formation of the smaller units/states within the Union was based on factors like language, culture and tribe. Each of these smaller units were given a certain amount of autonomy to promote regional interests. However, the autonomy given to these separate units is not independent of the interests of the Union and is marginal in comparison to the powers vested in the Centre. An important question to raise at this juncture is, why were these smaller units willing to admit to the dominance of the Union and be a part of the Union of States?
Post-independence, there was a shortage of food, poor economic growth, lack of agricultural produce, the problem of defense, a dwarfed socio-economic progress as result of British rule, and a need for industrialization in India. There was a need for the leadership of a central authority to ensure socio-economic progress, by distributing scarce resources, controlling prices and regulating trade. Thus, the Centre in India was given more power than the constituent units, so as to perform the above-mentioned functions and to ensure public welfare. If any state had not given into the idea of functioning as a part of the larger Union, then it may have faced scarcity of resources, which could have in turn harmed the survival of the particular state and its residents. Furthermore, a survey of the problems faced by other federations like U.S.A., Canada and Australia recommended a strong Centre to help tackle variegated problems like problems of defense, socio-economic problems, etc.
The final and one of the most important reasons for propagating a strong Centre in India “was to ensure unity and to prevent fissiparous tendencies” amongst states as, the past history of the country suggested that whenever the Centre became weak, the country began to disintegrate, like in the case of partition on the eve of independence. Several scholars and politicians including Indira Gandhi, have argued that the national unity of the Indian subcontinent is dependent on a strong Centre. These scholars also believed that, if state legislatures were vested with increased autonomy, it would severely harm the country’s unity. However, such a notion is fallacious. In order to understand this fallacy, it is important to determine if the Indian subcontinent falls within the ambit of a nation-state or within that of a state-nation. A nation-state is focused on removing cultural diversities, whereas, a state-nation is focused on the “creation of a sense of belonging with respect to the larger political community, while simultaneously putting in place institutional guarantees for safeguarding politically salient diversities, such as language, religion and culturally sacred norms.” In case of a nation-state, like in Japan or in Portugal, where the Centre is focused on removing cultural diversities all together, it may be fair to assume that the smaller units, created on the basis of language, culture, etc., if given more autonomy, would result in the disintegration of the country’s unity. However, India is a state-nation and not a nation-state because it’s ideal is to promote and protect language, religion and culture-based differences, while promoting a sense of nationalism amongst its citizens. Therefore, scholars who recommend suppressing regional autonomy to promote national unity, have undermined the importance of the constituent units and their opinion goes against the very concept of a state-nation.
State-nations usually prefer federalism to be their form of governance. However, India has adopted various non-federal features including a strong Centre, a single constitution, single citizenship, dominant role of the Centre at the time of emergency, etc., in addition to the federal features as detailed in the previous section. For the purposes of this paper, we limit our analysis of non-federal features of the Indian Constitution to a few instances that showcase its centralized character.
The autonomy given to the Parliament regarding internal reorganization under Article 3 is one of among the several instances where the centralized character of the Indian Constitution is evident. Under Article 3, the Parliament and not the concerned state legislature, has the exclusive power to make changes to the area, the boundaries and/or the names of existing states. The Proviso under Article 3 requires that a bill affecting the area, boundary or name of an existing state has to be referred by the President to the legislature of the concerned state, in order to seek its views regarding the amendment. But these views provided by the concerned state legislature are not binding on the Parliament nor the President, which minimizes the role of a state in a situation where its own area, boundary or name is being reorganized or amended. Additionally, Article 3 allows the Parliament to amend the “bill” even after seeking the state legislature’s views on the initial bill because the term “bill” in the Proviso under Article 3 cannot be interpreted as “amendment of a bill.” This concept was extensively discussed in Babulal Parate v. State of Bombay wherein the Apex Court held that the Parliament will have to seek views of the concerned state legislature regarding the amended version of a bill only if the amendment is germane to the subject matter of the original proposal or if it is directly negative thereof. The Court also held that if the state legislature is given an opportunity to express its views regarding all the aspects of a bill, then the particular state cannot later claim that they were denied an opportunity to express their views, just because an amendment was made to the original proposal. In the case at hand, the Supreme Court held in favor of the Parliament while denying the Legislature of Bombay another opportunity to provide its opinion on the formation of a composite state because the amendment of the State Reorganization Bill, 1956 (“Bill”), to form one composite State of Bombay was not germane to the initial proposal of the Bill where the ways of forming the State of Bombay were discussed. Also, the amendment was not directly negative of the initial proposal as the subject-matter of the Bill was always regarding the formation of the State of Bombay and, remained constant even after amending the Bill. Only if the amendment involved a proposal that was directly negative of the initial proposal, like a change in the name of the concerned units, then would it be a significant amendment and in such a case, the Parliament would have had to send the amended Bill to the State Legislature of Bombay to seek its views regarding the change of name. Thus, from the analysis of Babulal Parate, the unitary bias of the Constitution is evident because under Article 3, the Parliament is given exclusive autonomy to reorganize and amend the areas, the boundaries and the names of states. On the other hand, the concerned states have a meagre role in influencing the Parliament’s decision to alter their boundaries, their areas or their names and, are therefore denied their territorial integrity.
The allocation of powers among the Centre and the State under Schedule 7, is another example that brings out centralized character of the Indian Constitution. As detailed in the previous section, Schedule 7 of the Indian Constitution contains the Union List, the State List and the Concurrent List. We believe that the distribution of powers under Schedule 7 is biased towards the Union because, not only does the Union List contain more items, but it also contains the more important items that are of national importance like defense, intellectual property, banking, etc. Even though a lot of the items in the Union List may affect the affairs of several states, these state governments are not authorized to legislate upon the same because the particular item falls outside the purview of the State List. Another reason to believe that the distribution of powers under Schedule 7 is biased towards the Union is because in case of a conflict between a law legislated by a particular state and a law legislated by the Union, regarding a matter that falls under the Concurrent List, the Union law shall prevail over the conflicting provision of the State law. This is known as the doctrine of repugnancy and is dealt with under Article 254. It is irrelevant as to whether the State law was established prior to the Union law and the only relevant factor considered by Courts to determine repugnancy is whether the two legislations were conflicting. If they were conflicting, then the State law would be held void to the extent of repugnancy. Thus, it would be fair to say that even though the state legislatures are given the autonomy to legislate upon matters in the Concurrent List, the doctrine of repugnancy large undermines their authority.
From the above discussion, it is clear that the Indian Constitution is biased towards the Union, which is a non-federal feature embedded in the document and therefore, the stance of C.H. Alexandrowicz, that Indian is truly a federal nation cannot be correct. But, do the non-federal features adopted by the Indian Constitution make India a unitary nation? Scholars like K.P. Mukherjee and K. Santhanam contended that India is a unitary nation mainly because “the fundamental principal that a federation depends upon the territorial integrity of states seems to have been forgotten.”
We believe that these contentions are partly legitimate because in India, the territorial integrity of states is not guaranteed by the Constitution and, only the Parliament, under Article 3, has the autonomy to make changes to the name, boundaries and areas of a particular state while, the role of the concerned state in making changes is minimal. However, referring to the Indian Union as a unitary nation is an extremist view because the Indian Constitution also propagates federal features like a dual government system, a written constitution, independent judiciary, division of powers through the Constitution, etc. Therefore, it is possible to construe that India is neither purely a federal country like U.S.A. nor is it purely unitary in nature, like Japan. Instead, India is quasi-federal country as its Constitution borrows features from both, the federal as well as the unitary form of governments.
In the next section, we will analyze if this unique system of governance has helped achieve the purpose of its adoption.
SUCCESSES OF INDIAN FEDERALISM
In 1971, the 24th Amendment Act was legislated to vest the Parliament with powers to amend any article of the Constitution. Indira Gandhi, in 1975 had a national emergency declared because of the prevailing “internal disturbance” and this was, perhaps the only time where India’s federal functioning took a blow where there was an overzealous effort to centralize power. The autonomy of state governments had diminished and the 21-month period was an incredibly dark time in the country’s history with elections suspended, political liberties curtailed, and hundreds of journalists arrested. A common argument of the elected government then was that “if states became powerful, then the nation would be weakened” but, because India is state-nation, this ideal has been washed away from the current political discourse and thus, the Centre has voluntarily made an effort to foster sub-nationalism while protecting nationalism, by creating new states on linguistic or dialectic lines.
The basic structure doctrine was constructed to prevent any further attacks to the fundamental tenets of India’s Constitution and federalism has been declared to be a part of the its basic structure. Language riots have seen a stark decline in recent decades and several movements which demanded creation of new states on linguistic and dialectic grounds achieved their goals, with some exceptions, and states in the north-east and central India have seen changes in boundaries to create new states. A source of great conflict in the past has now, in the spirit of federalism, been indoctrinated and regions with linguistic and ethnic differences have achieved statehood.
Dispute resolution mechanisms such as the National Development Council for deciding and bargaining funds for projects and the Finance Commission, for deciding the distribution of national revenue have been institutionalized. It is important to provide for a neutral and just arbiter in a federal state to decide on conflicts between the Centre and state and to that extent, the Supreme Court of India has original jurisdiction to hear cases between the constituents of the Indian federation. Appropriate forums have been created for dispute resolution, making India’s federal set up more effective and fairer.
The quasi-federal system of governance in India has also increased the ordinary citizen’s participation and closeness with the government as compared to a unitary or centralized system of government. We believe that the quasi-federal structure in India, has fared well with the population because according to a survey, almost 85% of the participants were either “extremely proud” or “proud” of being an Indian while embracing their respective state-based identities. This benefit is especially important in India, with its population surpassing that of any other federation in the world, where effective governance would require grassroot planning, addressing social issues at a regional jurisdiction and laws suited to the social, linguistic and religious diversity of a state.
In the next section of this paper, it is argued that decentralization has been weaker at the lower levels and the supremacy of the Centre over the states has produced unfavorable results for the Indian federation.
FAILURES OF INDIAN FEDERALISM
A prefectorial federal system is one in which the central government has overarching powers to control the states as well as to dismiss their authority. The Indian federal system can be classified as prefectorial because, as discussed in the previous section, the Indian Constitution portrays a unitary bias and establishes the Centre’s supremacy over the states’ legislative autonomy. For instance, under Article 200, certain bills passed by state legislatures can be reserved by governors for the assent of the President. However, at times, the governor of a state is considered as the agent of the Centre because the Centre often uses the office of the governor to control and command state governments. From 1947-1984, “over 60% of governors had taken active part in politics.” The governors submit to the dominance of the union government because they are nominated to their positions, by the Centre. Furthermore, Article 201 allows the President to give his assent to a bill reserved by the governor practically at any point. Many examples, such as the Karnataka State Assembly’s Essential Commodities (Amendment) Bill, beg the inference that State Legislatures enjoy scare autonomy in matters that concern their own interests. The Bill was reserved for the President’s assent in 1976 and six years later, the assent was withheld. These provisions provide the President with excess autonomy, and the interests of the concerned state is at his/her mercy. Hence, we can say that Ambedkar’s argument that “the States under our Constitution are in no way dependent upon the Centre for their legislative or executive authority” is vitiated by provisions such as Article 200 and Article 201 of the Indian Constitution. A combination of such provisions and the incapacity to override the President’s veto, invalidate the division of powers between the Centre and states.
Moving away from legislative supremacy, state’s autonomy is also undermined by provisions such as Article 355 and 356, which empowers the central government to intervene in the affairs of a state. Although the provisions lay out the conditions requisite for the central government to intervene in state-related matters, like in cases of external aggression, internal disturbance or when a state government is not acting in accordance with the Constitution, as the Sarkaria Commission points out “a whole range of actions on the part of the Union is possible depending on the circumstances of the case, the nature, the timing and the gravity of internal disturbance.” There have been several instances where the power of president’s rule has been abused by the Centre, especially in between 1971-1984 where it was imposed 59 times. The power of President’s rule was haphazardly used for political gains of ruling parties. The Court in S.R. Bommai v. Union of India recognized the drastic toll of Article 356 on the fabric of the Constitution and expressed that “Article 356 must be used sparingly as it has the potential to dismantle the tranquility of Centre-state relations”. Since then, several safeguards have been put in place such as the rule that a proclamation, under Article 356(1), can only be made after it has been approved by both houses of parliament, and the rule that a proclamation under Article 356(1) is not immune from judicial review. These safeguards were put in place to counter any unilateral usage of the President’s rule but the history of its misuse stands testament to the drawbacks of the Union biased federal structure adopted by India.
Another important issue faced in India as a result of the overriding and enormous powers vested in the Centre by the Constitution, is with regard to the financial relations as detailed in Lists 1 and 2 and Chapters 1 and 2 of Part XII. “The share of taxes levied by the Union amounts to about 67% of the total, while only 33% is collected by the states.” Additionally, under Article 292, the Union has unlimited powers to borrow, only subject to the restrictions determined by the Parliament. However, the state governments are not given the autonomy to raise funds outside the country, and even if any state government wants to raise funds within the country, under Article 293, if the particular state government is in deficit to the Union government, then it cannot borrow public funds without the consent of the Union government. This provision stultifies the States’ authority because “all the states are indebted to the Government of India” which implies that the Indian Constitution makes the prior consent of the Union a mandatory requirement, for the States to raise loans from within the country. The states governments are the ones that are required to spend money on matters like health, education, welfare of the backward castes, etc., but, are unable to conduct development programs effectively due to the shortage of funds. Thus, the Union is affluent and the states are effluent under the present quasi-federal system of governance in India.
In this paper, we have used various statutes, case laws, commentaries and law commission reports to study the nature of Indian federalism and to evaluate its performance over the last few decades. The structure of governance adopted by the Indian Constitution cannot be classified as truly federal nor can it be classified as truly unitary as it adopts features from both forms of governance. The country’s federal structure is biased towards the Central government, and at the same time is also focused on furthering the interests of the individual states which are formed on the basis of language, tribe and/or culture. Thus, India is known as a quasi-federal Union. This unique structure was adopted by the Indian Constitution to meet the diverse needs of states, to ensure unity, to tackle issues faced by other federal countries, etc.
Though India’s federal experiment has not been perfect, it has been successful to a large extent as it has been able to achieve unity of a vastly diverse population, has reduced internal and external conflicts, and has also helped citizens embrace their national and state-based identities. However, the country has faced some hindrances as a result of the autonomy granted to the Centre by the Constitution, including the arbitrary use of powers, the lack of financing for states to undertake welfare activities, etc. The legislators have tried to overcome the problem of misuse of powers by the Parliament, by placing safeguards like making a proclamation under Art 356(1) susceptible to judicial review, etc. Other solutions may include, firstly, to decentralize powers vested in the Centre, not just to the State governments but also to other authorities subordinate to the State government like panchayats and district authorities. This is because many Indian states are tremendously populated and hence, the devolution of power to the states without effective decentralization below the level of the state legislature, that is to the panchayats, rural and district authorities, might still lead to a centralized system. Secondly, the state governments can be given more authority by easing the procedure that they have to follow in order to borrow funds, which can in turn help them conduct welfare programs without being hindered by the lack of funds. These solutions will improve the effectiveness of governance, support efficient use of time and resources, and will help accelerate the country’s overall development.
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