• While submitting the Draft Constitution, Dr. Ambedkar, the Chairman of the Drafting Committee, stated that "although its Constitution may be federal in structure", the Committee had used the term "Union" because of certain advantages, These advantages, he explained to the Constituent Assembly, were to indicate two things, viz., (a) that the Indian federation is not the result of an agreement by the units, and (b) that the component units have no freedom to secede from It

  • ARTICLE 1(1) of our Constitution says-"India, that is Bharat, shall be a Union of States."

  • The word 'Union', of course, does not indicate any particular type of federation, inasmuch as it is used also in the Preamble of the Constitution of the United States-the model of federation; in the Preamble of the British North America Act (which, according to Lord HALDANE, did not create a true federation at all); in the Preamble to the Union of South Africa Act, 1909, which patently set up a unitary Constitution; and even in the Constitution of the U.S.S.R (1977), which formally acknowledges a right of secession to each Republic, i:e., unit of the Union.

  • The difficulty of any treatment of federalism is that there is no agreed definition of a federal State. The other difficulty is that It is habitual with scholars on the subject to start with the model of the United States, the oldest (1787) of all federal Constitutions in the world, and to exclude any system that does not conform to that model from the nomenclature of 'federation'.

  • Numerous countries in the world have, since 1787, adopted Constitutions having federal features and, if the strict historical standard of the United States be applied to all these later Constitutions, few will stand the test of federalism save perhaps Switzerland and Australia.

  • Nothing is, however, gained by excluding so many recent Constitutions from the federal class, for, according to the traditional classification followed by political scientists, Constitutions are either unitary or federal.

  • If, therefore, a Constitution partakes of some features of both types, the only alternative is to analyse those features and to ascertain whether it is basically unitary or federal, although it may have subsidiary variations.

  • Federation Is more a 'functional' than an 'institutional' concept and that any theory which asserts that there are certain Inflexible characteristics without which a political system cannot be federal ignores the fact "that institutions are not the same things in different social and cultural environments".

  • The constitutional system of India is basically federal, but, of course, with stirking unitary features.

  • Dual Government: While in a unitary State, there is only one Government, namely the national Government, In a federal State, there are two Governments,-the national or federal Government and the Government of each component State.

  • Though a unitary State may create local sub-divisions, such local authorities enjoy an autonomy of their own but exercise only such powers as are from time to time delegated to them by the national government and it is competent for the nauonal Government to revoke the delegated powers or any of them at its will.

  • A federal State, on the other hand, is the fusion of several States into a single State in regard to matters affecting common interests, while each component State enjoys autonomy in regard to other matters. The component States are not mere delegates or agents of the federal Government but both the Federal and State Governments draw their authority from the same source, the Constitution of the land. On the other hand, a component State bas no right to secede from the federation at its will. This distinguishes a federation from a confederation.

  • Distribution of Powers : It follows that the very object for which a federal State is formed involves a division of authority between the Federal Government and the States, though the method of distribution may not be alike in the federal Constitutions.

  • Supremacy of th» Constitution : A federal State derives its existence from the Constitution, just as a corporation derives its existence from the grant of a statute by which it is created. Every power-executive, legislative, or judicial-whether It belongs to the federation or to the component States, is subordinate to and controlled by the Constitution.

  • Authority of Courts In a federal State the legal supremacy of the Constitution is essential to the existence of the federal system. It is essential to maintain the division of powers not only between the coordinate branches of the government., but also between the Federal Government and the States themselves. This is secured by vesting in the Courts a final power to Interpret the Constitution and nullify an action on the part of the Federal and State Governments or their different organs which violates the provisions of the Constitution.

  • The Supreme Court has observed that Indian Constitution is basically federal in form and is marked by the traditional characteristics of a federal system, namely, supremacy of the Constitution, division of power between the Union and the States and existence of an independent judiciary.

  • Our Constitution possesses all the aforesaid essentials of a federal polity.

  • The Constitution is the supreme organic law of our land, and both the Union and the State Governments as well as their respective organs derive their authority from the Constitution, and It is not competent for the States to secede from the Union.

  • There is a division of legislative and administrative powers between the Union and the State Governments and the Supreme Court stands at the head of our Judiciary to Jealously guard this distribution of powers and to invalidate any action which violates the limitations imposed by the Constirution.

  • This jurisdiction of the Supreme Court may be resorted to not only by a person who has been affected by a Union or State law which, according to him, has violated the constitutional distribution of powers but also by the Union and the States themselves by bringing a direct action against each other, before the Original Jurisdictlon of the Supreme Court under Art. 131.

  • It is because of these basic federal features that Our Supreme Court has described the Constitution as 'federal'.

  • The Mode of formation : A federal union of the American type is formed by a voluntary agreement between a number of sovereign and inde- pendent States, for the administration of certain affairs of general concern.

  • But there is an alternative mode of the Canadian type namely, that the provinces of a unitary State may be transformed into a federal union to make themselves autonomous.

  • The provinces of Canada had no separate or independent existence apart from the colonial Government of Canada and the Union was not formed by any agreement between them, but was imposed by a British statute, which withdrew from the Provinces all their former rights and then re-divided them between the Dominion and the Provinces.

  • Though the Indian federation resembles the Canadian federation in its centralising tendency, it even goes further than the CanadJan precedent The in India is not a matter of administrative convenience, but one of prindple.

  • Government of India Act, 1935, for the first time introduced the federal concept, and used the expression 'Federation of India' In a Constitunon Act relating to India. Since the Constitution has Simply continued the federal system so introduced by the Act of 1935, so far as the Provinces of British India are concerned.

  • The foundation for a federal set-up for the nation was laid in the Govt. of India Act, 1935. Though in every respect the distribution of legislative power between the Union and the States as envisaged in the 1935 Act has not been adopted in the 'Constitution, but the basic framework is the same. The Supreme Court observed that India has adopted for Itself a loose federal structure as it is an indestructible Union of destructible states

  • By the Act of 1935, the British Parliament set up a federal system in the same manner as it had done in the case of Canada, "by creating autonomous units and combining them into a federation by one and the same Act".

  • All powers hitherto exercised in India were resumed by the Crown and redistributed between the Federation and the Provinces by a direct grant.

  • Under this system, the Provinces derived their authority directly from the Crown and exercised legislative and executive powers, broadly free from Central control, within a defined sphere.

  • Nevertheless, the Centre retained control through 'the Governor's special responsibilities' and his obligation to exercise his individual Judgment and discretion in certain matters, and the power of the Centre to give direction to the Provinces

  • It is well worth remembering this peculiarity of the origin of the federal system in India. Neither before nor under the Act of the Provinces were in any sense 'sovereign' States like the States of the American Union. The Constitution, too, has been framed by the 'people of India' assembled in the Constituent Assembly, and the Union of India cannot be said to be the result of any compact or agreement between autonomous States.

  • The Provinces, as just seen, had been artificially made autonomous, within a defined sphere by the Government of India Act, 1935. What the makers of the Constitution did was to associate the Indian States with these autonomous Provinces into a federal union, which the Indian States had refused to accede to, in 1935.

Effect of Pre-Independence India on the Idea of an Indian federation

  • From the earliest times, the Indian States bad a separate political entity. and there was little that was common between them and the Provin- ces which constituted the rest of India.

  • Even under the federal scheme of 1935 the Provinces and the Indian States were treated differently; the accession of the Indian States to the system was voluntary while It was compul- sory for the Provinces, and the powers exercisable by the Federation over the Indian States were also to be defined by the Instruments of Accession.

  • It is because it was optional with the Rulers of the Indian Slates that they refused to join the federal system of 1935. They lacked the 'federal sentiment' (Dicey), that is, the desire to Iorm a federal union with the rest of India. But, as already rointed out, the political situation changed with the lapse of para- mountcy of the British Crown as a result of which most of the Indian States acceded to the Dominion of India on the eve of the Independence of India.

  • The credit of the makers of the Constitution, therefore, lies not so much in bringing the Indian States under the federal system but in placing them, as much as possible, on the same footing as the other units of the federation, under the same Constitution. In short, the survivors of the old indian States (States in Part B of the First Schedule) were, with minor exceptions, placed under the same political system as the old Provinces (States in Part A ).

  • The integration of the units of the two categories bas eventually been completed by eliminating the separate entities of States in Part A and States in Part B and replacing them by one category of States, by the Constitution (7th Amendment) Act, 1956.

  • In the United States, since the States had a sovereign and independent existence prior to the formation of the federation, they were reluctant to give up that sovereignty any further than what was necessary for forming a national government for the purpose of conducting their common purposes.

  • As a result, the Constitution of the federation contains a number of safeguards for the protection of 'State rights', for which there was no need in India, as the States were not 'sovereign' entities before.

  • While the residuary powers are reserved to the States by the American Constitution, these are assigned to the Union by our Constitution. Our Constitution has simply followed the Canadian system In vesting the residuary power in the Union.

  • While the Constitution of the United States of America merely drew up the constitution of the nation government, leaving it "in the main, (to the State) to continue to preserve their original Constitution. The Constitution of India lays down the constitution for the States as well, and, no State, save Jammu and Kashmir, has a right to determine its own (State) constitution.

  • In the matter of amendment of the Constitution,again, the part assigned to the State is minor, as compared with that of the Union. The doctrine underlying a federation of the American type is that the union is the result of an agreement between the component units, so that no part of the Constitution which embodies the compact can be altered without the consent of the covenanting parties. This doctrine is adopted, with variations, by most of the federal systems.

  • But in India, except in a few specified matters affecting the federal structure, the States need not even be consulted in the matter of amendment of the bulk of the Constitution, which may be effected by a Bill in the Union Parliament, passed by a special majority.

  • Though there is a division of powers between the Union and the States, there is provision in our Constitution for the exercise of control by the Union both over the administration and legislation of the States.

  • Legislation by a State shall be subject to disallowance by the President, when reserved by the Governor for his consideration [Art. 201]. Again, the Governor of a State shall be appointed by the President of the Union and shall hold office 'during the pleasure' of the President [Arts. 155-156].

  • These Ideas are repugnant to the Constitution of the United States or of Australia, but are to be found in the Canadian Constitution.

  • The American federation has been described by its Supreme Court as "an indestructible Union composed of indestructible States" The Union cannot be destroyed by any State seceding from the Union at its will.

  • Conversely, it is not possible for the federal Government to redraw the map of the United States by forming new States or by altering the boundaries of the States as they existed at the time of the compact without the consent of the Legislatures of the States concerned. The same principle Is adopted in the Australian Constitution to make the Commonwealth "indissoluble", with the further safeguard superadded that apopular referendum is required in the affected State to alter its boundaries.

  • It has been already seen the first proposition has been accepted by the makers of our Constitution, and it is not possible for the States of the Union of India, to exercise any right of secession. It should be noted in this context that by the 16th Amendment of the Constitution that even advocacy of secession will not have the protection of the freedom of expression.

  • But just the contrary of the second proposition has been embodied

  • Under our Constitution, it is possible to reorganise the States or to alter their boundaries, by a simple majority in the ordinary process of legislation Parliament. The Constitution does not require that the consent of the Legislature of the States is necessary for enabling Parliament to make such laws; only the President has to 'ascertain' the views of the Legislature of the affected States to recommend a Bill for this purpose to Parliament .

  • Even this obligation is not mandatory insofar as the President Is competent to fix a time-limit within which a State must express its views, if at all. In the Indian federation, thus, the States are not "Indestructible" units as in the U.S.A. The ease with which the federal organisation may be reshaped by an ordinary legislation by the Union Parliament has been demonstrated by the enactment of the States Reorganisation Act, 1956, which reduced the number of States from 27 to 14 within a period of six years from the commencement of the Constitution.

  • The same process of disintegration of existing States, effected by unilateral legislation by Parliament, has led to the formation, subsequently, of several new States.

  • Not only does the Constitution offer no guarantee to the States against affecting their territorial integrity without their consent,-iliere is no theory of 'equality of State rights' underlying the federal scheme in our Constitution, since it is not the result of any agreement between the States.

  • One of the essential principles of American federalism is the equality of the component States under the Constitution, irrespective of their size or population. This prindple is reflected in the equality of representation of the States in the upper House of the Federal Legislature (ie., in the Senate), which is supposed to safeguard the status and interests of the States in the federal organisation. To this is superadded the guarantee that no State may, Without its consent, be deprived of its equal representation in the Senate.

  • Under our Constitution, there is no 'equaltty of representation of the of States in the Council of States. As given in the Fourth Schedule, the number of members for the several States varies from 1 to 31. In view of such composition of the Upper Chamber, the federal safeguard against the interests of the lesser States being overridden by the Interests of the larger or more populated States is absent under our Constitution.

  • Nor can our Council of States be correctly described as a federal Chamber insofar as it contains a nominated element of twelve members as against 238 representatives of the States and Union Territories.

  • As a radical solution of the problem of reconciling national unity with 'State rights', the framers of the American Constitution made a logical division of everything essential to sovereignty and created a dual polity, with a dual citizenship, a double set of officials and a double system of Courts.

  • An American is a citizen not only of the State in which be resides but also of the United States, i.e., of the federation, under different conditions; and both the federal and State Governments, each independent of the other, operate directly upon the citizen who Is thus subject to two Governments, and owes allegiance to both. But the indian Constitution, like the Canadian, does not introduce any double Citizenship, but one citizenship and birth or residence in a particular State does not confer any separate status as a citizen of that State.

  • As regards officials similarly, the federal and State Governments in the United States, have their own officials to administer their respective laws and functions. But there is no such division amongst the public officials in India.

  • The majority of the public servants are employed by the States, but they administer both the Union and the State laws as are applicable to their respective States by which they are employed. Our Constitution provides for the creation of All-India Services, but they are to be common to the Union and the States.

  • Members of the Indian Administrative Service, appotnted by the Union, may be employed either under some Union Department or under a State Government, and their services are transferable, and even when they are employed under a Union Department, they have to administer both the Union and State laws as are applicable to the matter in question.

  • But even while serving under a State, for the time being, a member of an all-India Service can be dismissed or removed only by the Union Government, even though the State Government is competent to initiate disciplinary proceedings for that purpose.

  • In the U.S.A., there is a bifurcation of the Judiciary as between the Federal and State Governments. Cases arising out of the federal Constitution and federal laws are tried by the federal Courts, while State Courts deal with cases arising out of the State Constitution and State laws. But in India, the same system of Courts, headed by the Supreme Court, will administer both the Union and State laws as they are applicable to the cases coming up for adjudication.

  • The machinery for election, accounts and audit is also similarly integrated.

  • The Constitution of India empowers the Union to entrust its executive functions to a State, by its consent, and a State to entrust its executive functfons to the Union, similarly. No question of 'surrender of sovereignty' by one Government to the other stands in the way of this smooth co-operative arrangement.

  • While the federal system is prescribed for normal times, the Indian Constitution enables the federal government to acquire the strength of a unitary system in emergencies. While in normal times the Union Executive is entitled to give directions to the State Governments in respect of specified matters, when a Proclamation of Emergency is made, the power to give directions extends to all matters and the legislative power of the Union extends to State subjects.

  • The wisdom of these emergency provisions (relating to external aggression, as distinguished from 'internal disturbance') has been demonstrated by the fact that during the Chinese aggression of 1962 or the Pakistan aggression of 1965, India could stand as one man, pooling all the resources of the States, notwithstanding the federal organisation.

  • By endowing the Union with as much exclusive powers of legislation as has been found necessary in other normal times to meet the ever-growing national exigencies, and, over and above that, by enabling the Union Legislature to take up some subject of State competence, if required in the national interest'.

  • Thus. even apart from emergencies, the Union Parliament may assume legislative power (though temporarily) over any subject included in the State List, if the Council of States (Second Chamber of Parliament) resolves. by a two-thirds vote, that such legislation is necessary in the 'national interest'.

  • There is, of course, a federal element in this provision inasmuch as such expansion of the power of the Union into the State sphere is possible only with the consent of the Council of States where the States are represented. But, in actual practice, it will mean an additional weapon in me hands of the Union vis-a-vis the' States so long as the same party has a solid majority in both the Houses of the Union Parliament.

  • Even though there is a distribution of powers between the Union and the States as under a federal system, the distribution has a strong Central bias and the powers of the States are hedged In with various restrictions which impede their sovereignty even within the sphere limited to them by the distribution of powers basically provided by the Constitution.

  • By empowering the Union Government to issue directions upon the State Governments to ensure due compliance with the legislative and administrative action of the Union [Arts. 256-257], and to supersede a State Government which refuses to comply with such directions

  • By empowering the President to withdraw to the Union the executive and legislative powers of a State under the Constitution if he is, at any time, satisfied that the administration of the State cannot be carried on in the normal manner in accordance with the provisions of Constitution, owing to political or other reasons.

  • From the federal standpoint, this seems to be anomalous inasmuch as the Constitution-makers did not consider it necessary to provide for any remedy whatever for a similar breakdown of the constitutional machinery at the Centre.

  • Hence, The Constitution itself has created a kind of paramountcy for the Centre by providing for the suspension of State Governments and the imposition of President's rule under certain conditions such as the breakdown of the administration".

  • Secondly, the power to suspend the constitutional machinery may be exercised by the President, not only on the report of the Governor of the State concerned but also sou motu, whenever he is satisfied that a situation calling for the exercise of this power has arisen. It is thus a coercive power available to the Union against the units of the federation.

  • In actual practice the federal features entrench or strengthen themselves as they have in Canuda, or whether the strong trend towards centralisation which is a feature of most Western Governments In a world of crises, will compel these federal aspects of the Constitution to wither away.

  • A survey of the actual working of our Constitution for the last 59 years would hardly justify the conclusion that, even though the unitary bonds have in some respects been further tightened, the federal features have altogether 'withered away'.

  • The unitary bias of our Constitution has been accentuated, in actual working, by two factors so much so that very little is left of federalism. These two factors are- (a) the overwhelming financial power of the Union and the utter dependence of the States upon Union grants for discharging their functions; (b) the comprehensive sweep of the Union Planning Commission, set up under the concurrent power over planning. The criticism may be justified in point of degree, but not in principle, for two reasons-

    1. Both these controls are aimed at securing a uniform development of the country as a whole. It is true that the bigger States are not allowed to appropriate all their resources and the system of assignment and distribution of tax resources by the Union [Arts. 269, 270, 272] means the dependence of the States upon the Union to a large extent. But, left alone, the stronger and bigger States might nave left the smaller ones lagging behind, to the detriment of our national strength.

    2. Even in a country like the United States, such factors have, in practice, strengthened the national Government to a degree which could not have been dreamt of by the fathers of the Constitution. In fact, the traditional theory of mutual independence of the two governments,-Central and States, has given way to "co-operative federalism' in most of the federal countries today.

  • The practice of administrative co-operation between general and regional governments, the partial dependence of the regional governments upon payments from the general governments, and the fact that the general governments, by the use of conditional grants, frequently promote developments In matters which are constitutionally assigned to the regions.

  • Hence, the system of federal co-operation existing under the Indian Constitution, through allocation by the Union of the taxes collected, or direct grants or allocation of plan funds do not necessarily militate against the concept of federalism

  • Hence we prefer to call Indian federalism as 'co-operative federalism' which "produces a strong central government, yet it does not necessarily result in weak provincial governments that are largely administrative agencies for central policies.

  • In fact, the federal system in the Indian Consutuaon is a compromise between two apparently conflicting consideration

    1. There is a normal division of powers under which the States enjoy autonomy within their own spheres, with the power to raise revenue;

    2. The need for national Integrity and a strong Union government, which the saner section of the people still consider necessary after 59 years of working of the Constitution.

  • There is no denying the fact that the States have occasionally smarted against 'Central dominion' over the States in their exclusive sphere, even in normal times, through the Planning Commission (which itself was not recognised by the Constitution like the Finance Commission, the Public Service Commission or the like).

  • But this is not because the Constitution is not federal In structure Or that Its provisions envisage unitary control; the defect is political, namely, that it is the same Party which dominates both the Union and State Govemments and that, naturally, complaints of discrimination or Interference with State autonomy are more common In those States which happen to be, for the time being, under the rule of a Party different from that of the Union Government.

  • The remedy, however lies through the ballot box. It is through political forces. again, that the Union Government may be prevented from so exercising its constitutional powers as to assume an 'unhealthy paternalism' but that is beyond the ken of the present work. The remedy for a too frequent use of the power to impose President's rule in a State, under Art. 356, Is also political.

  • The strong Central bias has, however, been a boon to keep India together when we find the separatist forces of communalism, linguism scramble for power, playing havoc notwithstanding all in India. The devices of Central control, even after five decades of the working of the Constitution.

  • It also shows that the States are not really functioning as agents of the Union Government or under the directions of the latter, for then, events like those in Assam (over the language problem] or territortal dispute between Karnataka (Lingayat dispute) and Maharashtra could not have taken place at all.

  • That the federal system has not withered away owing to the increasing impact of Central bias would be evidenced by a number of circumstances which cannot be overlooked.

  • The most conclusive evidence of the survival of the federal system in India is the co-existence of the Governments of the parties in the States different from that of the Centre.

  • Of course, the reference of the Kerala Education Bill by the President for the advisory opinion of the Supreme Court instead of giving his assent to the Bill In the usual course, has been criticised in Kerala as an undue interference with the constitutional rights of the State, but thanks to the wisdom and Impartiality of the Supreme Court, the opinion delivered by the Court was prompted by a purely legalistic outlook free from any political consideration so that the federal system may reasonably be expected to remain unimpaired notwithstanding changes in the party situation so long as the Supreme Court discharges its duties as a guardian of the Constitution.

  • That federalism is not dead in Indla is also evidenced by the fact that new regions are constantly demanding Statehood and that already the Union had to yield to such demand in the cases of Meghalaya. Nagaland, Manipur, Tripura, Arunachal Pradesh, Goa, Chhattisgarh, Uttaranchal and Jbarkhand.'

  • Another evidence is the strong agitation for greater financial power for the States. The case for greater autonomy for the States in all respects was first launched by Tamil Nadu, as a lone crusader, but in October, 1983, It was joined by the States ruled by non-Congress Parties forming an 'Opposition Conclave', though all the Parties were not prepared to go to the same extent.

  • The enlargement of State powers at the cost of the Union, in the political sphere is however, shared by other States, on the ground that a weaker Union will be a danger to external security and even internal cohesion In present-day circumstances.

  • But there is consensus amongst the States, In general, that they should have larger financial powers than those conferred by the existing Constitution, If they are to efficiently discharge their development programmes within the State sphere under List II of the 7th Schedule. The Morarji Desai Government (1977) sought to pacify the States by conceding substantial grants by way of 'Plan assistance, by what has been called the 'Desai award'.

  • The proper assessment of the federal scheme introduced by our Constitution is that it introduces a system which is to formally work as a federal system but there are provisions for converting it into a unitary or quasi-federal system under specified exceptional circumstances.

  • But the exceptions cannot be held to have overshadowed the basic and normal structure. The exceptions are, no doubt, unique and numerous; but in cases where the exceptions are not attracted, federal provisions are to be applied without being Influenced by the existence of the exceptions.

  • Thus, it will not be possible either for the Union or a State to assume powers which are assigned by the Constitution to the other Government, unless such assumption Is sanctioned by some provisions of the Constitution itself.

  • Nor would such usurpation or encroachment be valid by consent of the other party, for the Constitution itself provides the cases in which this is permissible by consent [e.g., Arts. 252, 258(1), 258A]; hence, apart from these exceptional cases, the Constitution would not permit any of the units of the federation to subvert the federal structure set up by the Constitution even by consent.

  • Nor would this be possible by delegation of powers by one Legislature in favour of another.

  • Thus it may be reiterated that the Constitution of India is neither purely federal nor purely unitary but is a combination of on both. It is a Union or composite State of a novel type. It enshrines the principle that "in spite of federalism, the national interest ought to be paramount".

Indian system is federal with unitary bias i.e. it provides for regional autonomy but at the same time the centre is more powerful than the states. Also the states can’t cede from the union. The constitution also doesn’t mention federation anywhere. This is since a federation is formed by agreement between the units which isn’t the case in India. Canadian model of federation is used in India.

Federal features of the constitution   

Federal features of the constitution are dual government, written constitution, and independent judiciary, division of powers, bicameralism and rigid constitution.

Unitary features of the constitution   

Unitary features are unequal representation to the states at the centre, integrated judiciary, single citizenship, appointment of governors, all India services, veto over state bills, preference of union and concurrent list over state list, integrated audit and election machinery, indestructible centre and destructible states, emergency powers and constitutional provisions of allowing centre to give directions to states.

Federalism is a compromise between normal divisions of powers under which states enjoy autonomy within their own spheres and the need for a strong union under exceptional circumstances.


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