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
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
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
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
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.
Indian federation resembles the Canadian federation in its centralising tendency, it even goes further than the CanadJan precedent The federal.i.sm
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
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.
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.
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'
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.
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
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 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.
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
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
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
The machinery for election, accounts and audit is also similarly
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
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
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.
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.
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
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
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.
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.
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.
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
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".