THE NATURE OF THE INDIAN CONSTITUTION
IS THE CONSTITUTION OF INDIA FEDERAL?
According to the traditional classification constitutions are either Unitary or Federal.
In a unitary constitution the powers of the Government are centralised in one government viz., the Central Government. The provinces are subordinate to the Centre.
In a federal Constitution on the other hand, there is a division of powers between the Federal and the State Governments and both are independent in their own spheres.
There is a difference of opinion amongst the constitutional jurists about the nature of the Indian Constitution.
One view is that it is a quasi-federal constitution and contains more unitary features than federal
The other view is that it’s a federal constitution with a novel feature adopting itself to national emergencies.
VIEW OF THE FRAMERS OF THE CONSTITUTION
The view of the framers of the Constitution is that the Indian Constitution is a Federal Constitution.
Dr. Ambedkar, the Chairman of the Drafting Committee, observed thus, “I think it is agreed that our Constitution notwithstanding the many provisions which are contained in it whereby the Centre has been given powers to override the Provinces (States) nonetheless, is a Federal Constitution.
It is, therefore, necessary to ascertain firstly, what federal constitution is and what are its essential characteristics, and secondly, to examine whether our Constitution possesses those characteristics.
FEDERAL PRINCIPLE
“By the Federal Principles”, Prof. Wheare observes, ‘is, so that the general and regional Governments are each within a sphere co-ordinate and independent. Both the federal and the Regional Governments are co-ordinate and independent in their spheres and not subordinate to one another”.
The American Constitution is universally regarded as an example of federal constitution.
ESSENTIAL CHARACTERISTICS OF A FEDERAL CONSTITUTION
A federal constitution usually has the following essential characteristics
1. DISTRIBUTION OF POWERS
The distribution of powers is an essential feature of federalism.
Federalism means the distribution of the powers of the State among a number of co-ordinate bodies each originating in and controlled by the Constitution.
The basis of such distribution of powers is that in matter of national importance, authority is entrusted to the Union, and matters of local concern remain with the States
2. SUPREMACY OF CONSTITUTION
A federal State derives its existence from the Constitution.
Every power, executive, legislative or judicial whether it belongs to the nation or to the individual State is subordinate to and controlled by the Constitution.
The Constitution in a federal State constitutes the supreme law of the land.
Prof. Wheare says “That those two institutions- the supreme constitution and the written constitution are then, essential institutions to a federal Government.
3. A WRITTEN CONSTITUTION
A federal constitution must almost necessarily be a written constitution
The foundations of a federal State are complicated contracts.
It will be practically impossible to maintain the supremacy of the Constitution, unless the terms of the Constitution have been reduced into writing.
4. RIGIDITY OF THE CONSTITUTION
In a federal State, the constitution should be rigid i.e the procedure of amendment should be very complicated and difficult. This is required to maintain supremacy of the Constitution.
Rigid constitution does not mean that the constitution should be legally unalterable.
It simply means that the power of amending the Constitution should not remain exclusively with either the Central or State Governments.
5. AUTHORITY OF COURTS
To maintain the legal supremacy of the Constitution and division of powers between the Central and State Governments it is essential that there must be some independent and impartial authority under the framework of the Constitution.
In a federal State, the judiciary has, the final power to interpret the Constitution and guard its provisions of the Constitution.
WHAT IS THE POSITION OF INDIAN CONSTITUTION?
The Indian Constitution possesses all the essential characteristics of a federal Constitution mentioned above.
The Constitution establishes a dual polity, a system of double Government with the Central Government at one level and the State Government at the other.
Each level of Government is supreme in its own sphere.
The Indian Constitution is a written Constitution. It is supreme law of the land. It is necessary to obtain the assent of minimum half of the States to amend the provisions relating to federal structure of the country. Supreme Court is the highest Court of the country, and its decisions are binding on all authorities in the Country.
But, as said earlier, some scholars hesitate to characterise the Indian Constitution as truly federal because according to them in certain circumstances the Constitution empowers the Centre to interfere in the State matters and thus places the States in a subordinate position which violates the federal principle.
Therefore, use such expressions for it as ‘quasi-federal, “Unitary with federal features’ or “Federal with unitary features”.
PROF. WHEARE
In the opinion of Prof. Wheare: ‘The Constitution establishes a system of Government which is “almost quasi-federal, a unitary State with subsidiary federal features” rather than a “federal State with subsidiary unitary features”
JENNINGS
Jennings has characterised it as ‘a federation with a strong centralising tendency.’
The provisions of the Constitution which are produced in support of the above argument and how they modify the strict application of the federal principle.
In the following matters, the Indian Constitution contains the modifications of the federal principle
1. APPOINTMENT OF GOVERNORS
The Governors of the States are appointed by the President (Articles 155 and 156) and answerable to him.
There are provisions in the Constitution under which the Governor is required to send certain State laws for the assent of the President.
The President has power to veto those State laws e.g. Arts. 200, 288(2).
In practice there are not many examples where the President has vetoed the State Laws. The only example has been the Kerala Education Bill (Re. Kerala Education Bill, AIR 1958 SC 956).
2. PARLIAMENTS POWER TO LEGISLATE IN THE NATIONAL INTEREST
Under Art. 249 Parliament is empowered to make laws with respect to every matter enumerated in the State List if the Rajya Sabha passes a resolution by 2/3 majority that it is necessary in the national interest.
There cannot be any objection to this provision:
First, if a subject in the State List assumes national character and it is desired that there should law on that subject, there is no need to formally amend the constitution. Centre can legislate upon the subject under Article 249.
Secondly, it should also be noted that this power is given to Parliament by the Council of States itself by passing a resolution supported by 2/3 majority of the members present. Council of States is the representing house for the States.
3. PARLIAMENT’S POWER TO FORM NEW STATES AND ALTER BOUNDARIES OF EXISTING STATES
Parliament of India may form new States.it may increase or diminish the area of any State and it may alter the boundaries or name of any State (Art. 3).
The power conferred on Parliament to make territorial adjustment is better explained on the historical basis
The framers of the Constitution were well aware of the peculiar conditions under which and the reasons for which the States were formed, and their boundaries were defined and so, they deliberately accepted the provisions in Article 3 with a view to meeting the possibility of the redistribution of the State territory after the integration of Indian States
The provisions in Art. 3 take into account the fact that the Constitution contemplated readjustment of the territories of constituent States which might arise in future.
4. EMERGENCY PROVISIONS
The Constitution envisages three types of emergencies:
1. emergency caused by war or external aggression or armed rebellion (Art. 352);
2. emergency caused by failure of constitutional machinery in States (Art. 356); and
3. financial emergency (Art. 360).
When the proclamation of emergency is made under Art. 352, the normal distribution of powers between the Centre and the States undergoes a vital change.
Parliament is empowered to make laws with respect to any matter enumerated in the State list.
The Centre is empowered to give directions to any State as to manner in which the State’s executive power is to be exercised.
Further, the President may by order direct that all or any of the provisions of Arts. 278 to 279 relating to distribution of revenue between the Centre and the State shall take effect with such exception or modifications, as he thinks fit.
Under Art. 356, if the President is satisfied that Government of a State cannot be carried on in accordance with the provisions of the Constitution he can dismiss the State ministry and dissolve the Legislature and assume all the functions of the State.
Thus, the normal distribution of powers between the Centre and the States, which is the basic element of a federal constitution, is completely suspended.
DO THESE PROVISIONS MODIFY THE FEDERAL CHARACTER OF THE INDIAN CONSTITUTION?
DR. V.N. SHUKLA
‘The correct view observes Dr. V.N. Shukla, “is that emergency provisions which come into operation only on the happening of the specific contingencies, do not modify or destroy the federal system.
It is rather a merit of the Constitution that it visualises the contingencies when the strict application of the federal principle might destroy the basic assumption on which our Constitution is built.
The Constitution by adopting itself to a changed circumstance strengthens the Government in its endeavour to overcome the crisis.
In an emergency the behaviour of each federal Constitution is very much different from that in peace time.
For the above reasons we maintain that the Indian Constitution is federal in nature. [ V.N. Shukla—Constitution of India]
M.P. JAIN—INDIAN CONSTITUTIONAL LAW
Prof. Wheare: has coined a phrase ‘quasi-federation’ as applicable to India but he has nowhere defined what a ‘quasi-federation’ is.
“It is not necessary to use such a vague term ‘quasi-federal’ to characterise it”. The term ‘quasi-federal’ is extremely vague as it does not denote how powerful the Centre is, how much deviation there is from the pure ‘federal model’ or what kind of special position a particular quasi-federation occupies between a unitary State and a federation proper.
The fundamental principle of federation is that the powers are distributed between the Centre and the States and that is done by the Constitution.
That is what the Constitution does.
The States do not depend upon the Centre, for, in normal times the Centre cannot intrude.
It may be that the Centre has been assigned a larger role than the Sates but that by itself does not detract from the federal nature of the Constitution, for it is not the essence of federalism to say that only so much, and more power, is to be given to the Centre.
Prof. Wheare appears to feel that the American Constitution is truly of federal type
He says ‘among examples of federal constitutions there may be mentioned those of the United States, Switzerland and Australia’.
It may, however, be clearly understood that the nature of federalism is more of historical growth based on a nation’s necessity. To accept the same pattern of federalism in all countries is well-nigh impossible.
With all respects to Prof. Wheare, we may tell him that federalism varies from place to place, and from time to time depending on so many factors—historical, geographical, economical and political.
Federalism is not like the set pattern of coats to wear. It is a clock of varying organised pattern befitting each wearer and helping him to the next and superior stages of federalism.
India’s federalism is unique and good for itself.
Indian Constitution is sufficiently federal.
It is not less federal than American federalism which on paper is of higher degree but in the actual practice the leaning is towards centralisation of national interest.
The term ‘quasi’ is a misnomer.
V.G. RAMCHANDRAN—1958 (SCJ)
India is federal and America is more federal in the outline of the Constitution. In practice there is not much difference between the two.
In short, it may be concluded that the Constitution of India is neither purely federal nor purely unitary but is a combination of both.
It enshrines the principle that in spite of federalism, the national interest ought to be paramount.
Thus, the Indian Constitution is mainly federal with unique safeguards for enforcing national unity and growth (Jenning) (Some Characteristics of Indian Constitution,)
