Law and You > Constitutional Law > Quasi-Federalism in India
The Constitution of India has adopted federal features; though it does not, in fact, claim that it establishes a federation. The question whether the Indian Constitution could be called a federal constitution troubled the minds of the members of the Constituent Assembly. This question cannot be answered without going into the meaning of federalism and the essential features that are evident in federal state. Let us examine them and try to find out whether India is a federation or not.
The word ‘Federation’ has been derived from the Latin word foedus, which means treaty, contract or compact. Thus, a federal state is seen as a compact or association of states/provinces due to an agreement or treaty. It is an arrangement by which many relatively autonomous parts come together to make a whole. Federalism is a political system through which two or more governments have shared authority over the same geographical area. Most democratic countries in the world are governed by a federal system, including India, US, Australia, Argentina, and Canada. The members of the “upper houses” in the federation are not appointed or elected but are delegates of the respective governments.
Federalism in India:
The Constitution originally provided for a two-tier system of government, the Union Government or what we call the Central Government, representing the Union of India and the State governments. Later, the third tier of federalism was added in the form of Panchayats and Municipalities.
The Parliament cannot on its own change this arrangement. Any change to it has to be first passed by both the Houses of Parliament with at least two-thirds majority. Then it has to be ratified by the legislatures of at least half of the total States.
In case of any dispute about the division of powers, the High Courts and the Supreme Court make a decision.
The defining characteristics of federalism in India are as follows:
Written Rigid Constitution:
The Indian constitution adopted in 1950 had twenty-two chapters, 395 Articles and eight schedules. It is the source of states and central government’s powers and authorities. The Indian constitution is a blend of rigidity and flexibility. In comparison to the constitutions of the USA and Australia, the Indian constitution is flexible. However, on issues related to centre-state relations, the constitution is rigid. Any constitutional amendment affecting centre-state relations such as the division of powers and state’s representation in the Parliament requires a majority of the total membership of the house and a majority of not less than two-thirds of the members of the house present and voting. The amendment also requires to be ratified by fifty per cent of state legislatures. After this procedure the amendment is signed by the head of the state i.e; the President. Hence, Indian Constitution has been rightly called a rigid constitution.
Distribution of Power:
There are two Governments one at the central or Union or federal or national level (Federal Government) and the Government of each state. The Constitution clearly provided a threefold distribution of legislative powers between the Union Government and the State Governments. This exhaustive attempt to define the jurisdiction of the two governmental levels supports the federal claim of the Indian Constitution. The three lists are as follows:
Union List (Article 246(1) and Schedule VII):
This list contains 97 subjects. Parliament has exclusive power to make laws with respect to any of these subjects. It includes subjects of national importance such as defence of the country, foreign affairs, banking, communications, and currency. Their inclusion in Union list is due to the need for a uniform policy on these matters throughout the country. The Union Government alone can make laws relating to the subjects mentioned in the Union List.
State List (Article 246(3) and Schedule VII):
This list contains 66 subjects. The legislative of any State has exclusive power to make laws with respect to any of these subjects. It includes subjects of State and local importance such as police, trade, commerce, agriculture, and irrigation. The State Governments alone can make laws relating to the subjects mentioned in the State List.
Concurrent List (Article 246(2) and Sch. VII):
This list contains 47 subjects. Parliament and legislature of any State both have the power to make laws with respect to any of these subjects. It includes subjects of common interest to both the Union Government as well as the State Governments, such as education, forest, trade unions, marriage, adoption, and succession. Both the Union as well as the State Governments can make laws on the subjects mentioned in this list. If their laws conflict with each other, the law made by the Union Government will prevail.
Residuary Powers (Article 248):
According to our constitution, the Union Government has the power to legislate on the ‘residuary’ subjects. Residuary subjects are those subjects which are not covered in the Union list or the State list.
Exceptions (Articles 249, 250, 252 and 253):
The Parliament can make laws on a matter specified in the State List in circumstances mentioned in these Articles.
Bicameral Legislature:
Indian legislature known as Parliament is bicameral. The two houses are Rajya Sabha, the upper house and Lok Sabha, the lower house. The Lok Sabha (People‘s Council) represents the people across the country. In contrast, the Rajya Sabha (Council of States) represents the states in the national legislature. Members of Lok Sabha are directly elected by the people, while, the members of the Rajya Sabha are elected by the state legislatures. The President nominates twelve members to Rajya Sabha for their contributions towards arts, literature, sciences, and social services. Seats are allotted in the upper house according to their population.
Dual Government:
In India, a central government and state governments exist, each having its political institutions and processes. They have a separate legislature, executive, and judiciary. The President is head of the Union of India, while the Governor is the constitutional head of states. If the supreme court is India’s highest judiciary, the High courts are the state’s highest judiciary. Establishing a distinct set of political institutions for central and state governments has resulted in establishing two tiers of government in Indian Federation.
Administrative Relations Between Union and States:
Articles 256 to 263 deals with Union control over States even in normal times through the following ways:
- Direction by Union to the State Governments – Articles 256, 257 and 356.
- Delegation of Union’s function to the States – Article 258.
- All India Services – Article 312.
- Grant-in-aid.
- Disputes relating to water.
- Public Acts, records and Judicial proceedings – Article 261.
- Co-ordination between States – Provision for Inter-State Council – Article 263.
Independent Judiciary:
The constitution provides for an independent judiciary, having the power of the judicial review. At the same time, the constitution attempts at the reconciliation of the principle of judicial review and the parliamentary supremacy. In case of the dispute between the Union and a State or among the States, the Supreme Court settles it by the interpretation of the statute and constitution. The court can declare any action on the part of the Government ultra vires if such action violates the Constitution.
Judicial Trend:
In Keshavanada Bharti v. State of Kerala, AIR 1973 SC 1461 case, Sikri C.J. and other judges of the full bench considered the federal character of the constitution as a basic feature of our constitution.
Unitary Features of Indian Constitution:
Besides the federal features, the Indian Constitution also possesses the following unitary or Non-federal features:
Absence of Word ‘Federation’ in the Constitution:
Our Constitution makers have conspicuously avoided the use of the word ‘federation’ and used the word ‘union’ in the Constitution. This can be considered, as a deliberate attempt on part of the constitution makers to keep India unitary in spirit. India has been described, as a ‘Union of States’ in the Constitution.
Single Constitution for the Union and States:
Usually, in a federation, the states have the right to frame their own Constitution separate from that of the Centre. Both the Union and state governments derive their authority from the single Constitution. States do not have their own constitutions. This upholds uniformity in adherence to laws.
Single Citizenship:
In spite of a dual polity, the Constitution of India, like that of Canada, adopted the system of single citizenship. There is only Indian Citizenship and no separate state citizenship. All citizens irrespective of the state in which they are born or reside enjoy the same rights all over the country. The other federal states like US, Switzerland and Australia have dual citizenship, that is, national citizenship as well as state citizenship.
Strong Centre:
Theoretically, in a federation, both the governments should be independent of each other and none should be allowed to encroach upon the autonomy of the other. But the Constitution of India made the centre strong. The Union List contains more subjects than the State List. More important subjects have been included in the Union List. The Centre has overriding authority over the Concurrent List and the residuary powers have also been left with the Centre. The Unitary Territories in India are also administered by the central government. Other than this, the 42nd Constitutional amendment has empowered the Central government to deploy armed forces in any state to deal with law-and-order situations. Thus, the Constitution has made the Centre very strong. In USA residual powers are vested to states.
Flexibility of the Constitution:
The process of constitutional amendment is less rigid than what is found in other federations. The bulk of the Constitution can be amended by the unilateral action of the Parliament, either by simple majority or by special majority. Further, the power to initiate an amendment to the Constitution lies only with the Centre. In US, the states can also propose an amendment to the Constitution.
Dominance of Parliament:
The Parliament reigns supreme in the following manner:
- As per Article 249, the Rajya Sabha can transfer any of the subjects included in the state list to Parliament, when viewed from the perspective of national interest. However, this has set in a wrong precedent. This is usually resorted to when different political parties hold the forte at the centre and states.
- Under Article 253, Parliament has got the supreme power to make laws for the whole or any part of the country. Likewise, it can take decisions for implementing any treaty, agreement, and convention with any other country or countries.
- By virtue of Article 3, the Union Government can at any time change the boundaries of any existing state, merge it with some other state, create a new state out of an existing one, or abolish a state altogether.
States Not Indestructible
In India, the Centre has a right to change the boundaries of the States and to carve out one State out of the other. In fact, this has been done in India, several times. Unlike in other federations, the states in India have no right to territorial integrity. Under Article 3 of the Constitution the Parliament can by unilateral action change the area, boundaries or name of any state. Moreover, it requires only a simple majority and not a special majority. Hence, the Indian Federation is “an indestructible Union of destructible states”. The American Federation, on the other hand, is described as “an indestructible Union of indestructible states”.
No Equality of State Representation:
The states are given representation in the Rajya Sabha on the basis of population. Hence, the membership varies from 1 to 31. In US, on the other hand, the principle of equality of representation of states in the Upper House is fully recognised. Thus, the American Senate has 100 members, two from each state. This principle is regarded as a safeguard for smaller states.
Emergency Provisions:
Articles 352, 356, and 360 of the Constitution provide for the emergency powers. Constitution bestows on the President of India powers to be exercised owing to the existence of either condition, that is, when there is threat to sovereignty of the nation or break down of constitutional machinery in a State or financial instability and bankruptcy of any government respectively.
The Constitution stipulates three types of emergencies—national, state and financial. During an emergency, the Central government becomes all powerful and the states go into the total control of the Centre. It converts the federal structure into a unitary one without a formal amendment of the Constitution. This kind of transformation is not found in any other federation.
Integrated Judiciary:
The Indian Constitution has established an integrated judicial system with the Supreme Court at the top and the state high courts below it. This single system of courts enforces both the Central laws as well as the state laws. In US, on the other hand, there is a double system of courts whereby the federal laws are enforced by the federal judiciary and the state laws by the state judiciary.
Appointments to the High Courts are made by the President, and the Judges of the High Courts can be transferred by the President from one High Court to another. Thus the power of appointment and transfer of judges remains with the centre.
Appointment of Governor:
The Governor, who is the head of the state, is appointed by the President at the behest of the Centre. State governors hold office at the pleasure of President. There is no effective say of a state government in regard to the appointment or removal of a Governor. A Governor merely acts, as an agent of the centre. This enables the Union Government to exercise control over the State administration.The American Constitution, on the contrary, provided for an elected head in the states. In this respect, India adopted the Canadian system.
Integrated Election Machinery:
The Election Commission, a body appointed by the President, is in charge of conducting elections not only to Parliament and to other elective offices of the Union, but also to those of the State Legislature. But this body is constituted by the President and the states have no say in this matter. The position is same with regard to the removal of its members as well. USA has separate machineries for the conduct of elections at the federal and state levels.
All-India Services:
The Constitution has certain special provisions to ensure the uniformity of the administrative system and to maintain minimum common administrative standards without impairing the federal principle. In US, the Federal government and the state governments have their separate public services. In India also, the Centre and the states have their separate public services. But, in addition, there are all-India services (IAS, IPS, and IFS) which are common to both the Centre and the states. The members of these services are recruited and trained by the Centre which also possess ultimate control over them.
Integrated Audit Machinery:
The Controller and Auditor-General of India has an organisation managed by the officers of the Indian Audit and Account Services. The Comptroller and Auditor-General of India audit the accounts of not only the Central government but also those of the states. But his appointment and removal is done by the president without consulting the states. Hence, this office restricts the financial autonomy of the states. The American Comptroller-General, on the contrary, has no role with respect to the accounts of the states.
Parliament’s Authority Over State List:
Even in the limited sphere of authority allotted to them, the states do not have exclusive control. The Parliament is empowered to legislate on any subject of the State List if Rajya Sabha passes a resolution to that effect in the national interest. This means that the legislative competence of the Parliament can be extended without amending the Constitution. Notably, this can be done when there is no emergency of any kind.
In the Automobile Transport v. State of Rajasthan, AIR 1962 SC 1406 case while the seven judges’ bench of Supreme Court interpreted the impact of article 301 of the Constitution said that Indian constitution is a federal constitution and observed: “The evolution of a federal structure or a quasi-federal structure necessarily involved, in the context of the conditions then prevailing, a distribution of powers and a basic part of our constitution relates to that distribution with the three legislative lists in the Seventh Schedule. The constitution itself says by Art. 1 that India is a Union of States and in interpreting the constitution one must keep in view the essential structure of a federal or quasi-federal constitution, namely, that the units of the Union have also certain powers as has the Union itself.”
Quasi-Federalism in India:
Quasi-federalism means an intermediate form of state between a unitary state and a federation. It combines the features of a federal government and the features of a unitary government. India is regarded as a semi-federal state or a quasi-federal state.
In the Automobile Transport v. State of Rajasthan, AIR 1962 SC 1406 case, while the seven judges’ bench of Supreme Court interpreted the impact of article 301 of the Constitution said that Indian constitution is a federal constitution and observed that the evolution of a federal structure or a quasi-federal structure necessarily involved, in the context of the conditions then prevailing, a distribution of powers and a basic part of our constitution relates to that distribution with the three legislative lists in the Seventh Schedule. The constitution itself says by Article 1 that India is a Union of States and in interpreting the constitution one must keep in view the essential structure of a federal or quasi-federal constitution, namely, that the units of the Union have also certain powers as has the Union itself.
In State of Rajasthan v. Union of India, 2 AIR 1977 SC 1361 case, Beg, J. observed 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 uplifted. In such a system, the States cannot stand in the way of legitimate and comprehensively planned development of the country in the manner directed by the Central Government.
In S.R. Bommai v. Union of India, AIR 1994 SC 1918 case a nine judge bench has clearly enunciated that Indian Constitution is federal. The court held that: .…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. The Court further observed that the fact that under the scheme of our constitution, greater power is conferred upon the Centre vis-a-vis the States does not mean that States are mere appendages of the Centre. Within the sphere allotted to them, states are supreme. The Centre cannot tamper with their powers. More particularly, the courts should not adopt an approach, an interpretation, which has the effect of or tends to have the effect of whittling down the powers reserved to the States.
Conclusion:
Quasi-federalism means an intermediate form of state between a unitary state and a federation. It combines the features of a federal government and the features of a unitary government. India is regarded as a semi-federal state or a quasi-federal state. The Supreme Court of India also describes it as a federal structure with a strong bias towards the Centre. Thus, on a careful analysis of the federal and unitary features of the constitution, it is evident that with every federal feature, there is an ultimate centralizing force which is existing. Therefore, it would not be wrong to conclude that the Constitution of India is federal in structure and unitary in spirit i.e. it is quasi- federal in nature.