Title Table of Contents
Table of Cases
Research Methodology
Aim and Hypothesis:
The aim of this paper is to prove the hypothesis that the Indian Constitution is quasi federal in nature, there are sound justifications for it being so and it is beneficial to the country that our Constitution is quasi federal in nature.
Scope and limitation:
This research paper focuses on the provisions of the Indian Constitution which cause it to be labeled as a quasi federal constitution. Other federal constitutions are only discussed as a means for comparison and analysis.
Research Questions:
The
following
ar e
the
set
of
research
questions
which
have
been
addressed
throughout this research paper and a sincere attempt has been made to answer them: 1. What What are federal federal and and unita unitary ry consti constitut tution ions? s? 2. Is the the Indian Indian Constit Constitution ution federal, federal, unitary unitary or or quasi quasi federal? federal? 3. What are the the reasons reasons and the necessi necessity ty for the nature nature of the the Indian Indian Constituti Constitution on to be as it it is now?
Style of Writing:
This research paper has been written in a descriptive and analytical method.
Sources of data:
The researcher has used secondary sources of data.
Mode of Citation:
A uniform mode of citation has been used throughout this research paper.
Introduction “Our Constitution would be both unitary as well as federal according to the requirements of time and circumstances.” Dr. B.R. Ambedkar
The debate with regard to the nature of our Constitution and its nature is probably as old as the Constitution itself. The question as to whether the Constitution is federal, unitary or quasi federal in nature has been ever present since the Constitution came into force. K.C. Wheare defines federal government as an association of states, which has been formed for certain common purposes, but in which the member states retain a large measure of their original independence.1 A federal government exists when the powers of the government for a community are divided substantially according to a principle that there is a single independent authority for the whole area in respect of some matters and there are independent regional authorities for other matters, each set of authorities being co-ordinate to and subordinate to the others within its own sphere.
The framers of the Indian Constitution attempted to avoid the difficulties faced by the federal Constitutions of U.S.A, Canada and Australia and incorporate certain unique features in the working of the Indian Constitution. Thus, our Constitution contains certain novel provisions suited to the Indian conditions. The doubt which emerges about the federal nature of the Indian Constitution is the powers of intervention in the affairs of the states given to the Central Government by the Constitution. According to Wheare, in practice the Constitution of India is quasi-federal in nature and not strictly federal. Sir Ivor Jennings was of the view that India has a federation with a strong centralizing policy 2.
The novel provisions in our Constitution are the ones that grant the Centre the power to interfere with the spheres of power occupied by the States. The sphere in which the Centre has the most influence over is the legislative sphere. Articles 249, 250, 252 and 253 allow the Centre to legislate on subjects normally alloted to the States. By virtue of Article 200 and 201 the Centre, through the Governors of the States can exercise control over the legislations drafted by the States. Along with legislative control, the Centre also gains control over the executive powers of the States when the emergency provisions contained in Articles 352, 356 and 360 are invoked. The Centre also has power to alter the boundaries of the states which gives it territorial superiority. 1 2
This research paper aims to discuss these provisions in order to prove that the Constitution is quasi federal in nature. Also examined are the reasons for the Constitution being quasi federal and the necessity for it being so.
Chapter I Federal and Unitary Constitutions
To understand the debate on the nature of the Indian Constitution we must first examine, if only briefly, the characteristics of federal and unitary constitutions
Federal Constitutions
Federalism constitutes a complex governmental mechanism for the governance of a country. It seeks to draw a balance between the forces working in favor of concentration of power in the Centre and those urging a dispersal of it in a number of units. A federal Constitution envisages a demarcation of governmental functions and powers between the Centre and the regions by the sanction of the Constitution, which is a written document. From this follows two necessary consequences. Firstly the invasion by one level of government on the area assigned to the other level of the government is a breach of the Constitution and secondly any breach of the Constitution is a justiciable issue to be determined by the Courts as each level of government functions within the area assigned to it by the Constitution. The very essence of a federal constitution, is thus the division of power and functions between the Centre and the States 3.
Unitary Constitution
A unitary state is one in which the Centre retains all the powers and privileges of government. A monarchy is the best example of a unitary form of government. Thus a unitary constitution grants all the powers to the one single government at the Centre 4.
3 4
Chapter II Quasi Federal Characteristics of the Indian Constitution
Central Legislation on Matters in the State List Though Article 246(3) states that States have jurisdiction over the subjects in List II of the Seventh Schedule, the Constitution envisages four situations in which Parliament can legislate on subjects contained in List II of the Seventh Schedule to the Constitution. These four situations are dealt with in Articles 249,250,252 and 253 of the Constitution.
Article 249 Article 249 envisages a situation in which a subject in the State List suddenly and temporarily assumes national importance and there is a need for effective legislation on the subject as was held in the case of Union of India v. Valluri Basavaiah Chaudhary5. According to Article 249 if the following four conditions are satisfied then Parliament can legislate, for the whole or a particular part of the country, upon matters in the State List that have newly assumed national importance. 1) Jurisdiction to legislate on such matters can be assumed by Parliament only if two thirds of the members of the Rajya Sabha present and voting pass a resolution to this effect 6. 2) The matter in the State List that is to be legislated upon must be clearly laid out in the resolution so passed. 3) The resolution passed in the manner described before remains in force only for a period of one year and 4) any law passed in pursuance of such a resolution remains operational only for six months after the resolution ceases to be operational
Even though the resolution becomes inoperative one year after it is passed, it can be renewed periodically till Parliament sees fit to transfer the subject back to the jurisdiction of the States. To this end the Rajya Sabha has to pass a fresh resolution in the manner that the original resolution was passed. The reasoning behind the Rajya Sabha being required to pass this resolution is that this House of Parliament consists of representatives of the States elected by the State Legislative Assemblies.
5 Union of India v. Valluri Basavaiah Chaudhary, 1979 AIR 1415. 6 Kuldeep Nayar v. Union of India, ( 2006) 7 SCC 1.
The advantage given by article 249 is that a temporary situation can be handled through effective legislation by the Centre. Article 249 provides an uncomplicated and quick mechanism to cope with extraordinary circumstances which assume temporary national importance. In addition to this, this Article can be employed when speed is of the utmost importance and Parliament does not deem it necessary to invoke the emergency provisions contained in articles 352 and 356 of the Constitution.
It is important to note that the legislative competence of the States with respect to the subject matter of the resolution passed by the Rajya Sabha remains intact. However if during the operation of such a resolution any State enacts a law on that particular subject, then as per the rule of repugnancy laid down in Article 251 the Central law will take precedence over the State law as long as it is operational.
Examples of the use of the provisions of Article 249 are few in number. A few laws passed in pursuance of this Article that come to mind are the Essential Supplies (Temporary Powers) Amendment Act, 1950, the Supply and Prices of Goods Act, 1950 and the Evacuees Interest (Separation) Act of 1951.
Article 250 Article 250 enables Parliament to legislate on all matters on the State List when an emergency has been declared under Article 352 7. The powers of the State to legislate on these matters during an emergency are ostensibly unaffected by article 250. However due to the rule of repugnancy laid down in Article 251, in effect the States' jurisdiction over the subjects in the State List is transferred to the Centre until the emergency is revoked.
Article 252 Article 252 provides a mechanism by which two or more States, when it seems desirable to them to regulate a certain subject in List II through a Central legislation, can ask Parliament to enact such a law. To facilitate this a resolution to this effect has to be passed by the State Legislature. Any State can adopt any law passed in pursuance of this Article by passing a resolution in its Legislature. Parliament is bound to structure any law passed under Article 252(1) in such a manner as to ensure that any State can adopt the law at any given point of time.
When a resolution is passed by a State Legislature asking the Centre to enact a law on a State 7 Jayantilal Amritlal Shodhan v. F.N. Rana , 1964 Air 648.
subject it amounts to a surrender or abdication of the jurisdiction and power of the State with regard to that particular subject. In Thumathi Venkaiah v. State of Andhra Pradesh 8 the Supreme Court stated that the effect of the resolution was to lift the matter out of List II and place it in List I of the seventh Schedule to the Constitution. However Parliament can legislate on the matter only to the extent to which the States have asked it to. For example in the case of HHM Shanta Devi Gaekwad v. Sarjibhai Patel 9 the Supreme Court held that when the State surrendered the right to legislate on urban land ceilings, it did not give up its right to legislate upon matters of town planning and development.
The abdication of jurisdiction over the subject is complete as even the amendment of the law has to be carried out by Parliament. Thus according to Article 252(2) the State loses its power to repeal or amend the law passed as a consequence of its passing a resolution under Article 252(1). However Article 252(2) says that the law has to be amended in a like manner to which it was passed. Due to the presence of the phrase “like manner” the Speaker of the Lok Sabha has in the past interpreted that the States consent is needed to amend the law and a fresh resolution like the one passed under Article 252(1) should be passed by the States before amendment or repeal can take place.
A law passed in pursuance of the provisions of this Article is not categorised as a State law. This is because the Centre is responsible for both its initial enactment and subsequent amendment. Article 252 has been put to use on numerous occasions. The setting up of the Damodar Valley Corporation, the Prize Competition Act, 1955 and the enactment of the Urban Land (Ceiling and Regulation) Act, 1976 are some of the best known examples of the Article's use.
Article 253 Article 253 enables Parliament to legislate upon any of the subjects in List II in order to implement a treaty or a decision reached at an international conference.
Impact on the Nature of the Constitution The four Articles discussed above have no parallel provisions in the Constitutions of other major federations such as the United States and Canada. Generally federal constitutions have a rigid distribution of powers between the Centre and the States. The disadvantage of this rigidity, though it prevents conflict of Central and State laws, is that when extraordinary situations arise, the Centre 8 Thumathi Venkaiah v. State of Andhra Pradesh 9 HHM Shanta Devi Gaekwad v. Sarjibhai Patel
cannot tide over these situations through effective legislation. To do away with this disadvantage the framers of the Constitution included the four Articles discussed previously.
The deviation from general federal principles is apparent and what is also apparent is the need for the deviation. A common theme that will emerge in the course of this discussion on the nature of the Constitution is the necessity of deviation from federal principles to suit the conditions which are unique to India. The lack of historical roots for the federation caused the framers to be circumspect with respect to the extent of power given to the States. This along with the nned for effective legislation in important areas prompted the inclusion of the four Articles.
Central Control over State Legislation There are certain situations in which the Governor is bound to reserve a State Bill for the consideration and assent of the President. These are as follows: 1) Under Article 31A if a law dealing with the acquisition of estates, is in violation of the provisions of Articles 14 and 19, then it will not be invalid only if the Presidents accords it his or her assent. This is so as to restrict the States to use their power to deviate from the Fundamental Rights only situations in which such deviation is justified. 2) According to Article 31C the Directive Principles take precedence over the Fundamental Rights given in Articles 14 and 19. However a State law under this Article is valid only if the President assents to it. This acts as a safeguard against unjustifiable abridgment of Fundamental Rights. 3) The second proviso to Article 200 directs the Governor to reserve any State Bill, if he feels that such a Bill, on becoming a law would derogate from the powers of the High Court thus rendering it unable to fulfill its constitutional mandate. This provision is meant to safeguard the independence of the judiciary. 4)
Under Article 288(2) any State law imposing a tax on the production, consumption, distribution, storage or sale of water or electricity by a regulatory body constituted under a Parliamentary law for the development of inter-state rivers and river valleys, has to be accorded Presidential assent before becoming operational.
5) Intercourse of trade and commerce is without any restriction in India as per the provision of Article 301. However under Article 304B, with the assent of the President, any State can impose reasonable restrictions on the freedom of trade and commerce in the general interest of the public. Presidential assent, in this case , is made mandatory to ensure that stringent State regulations do not unduly disrupt the economy.
6) When there arises repugnancy between a State and a Central law on a subject in the Concurrent List, as per the provisions of Article 254(2), the repugnancy can be cured by the President assenting to the legislation drafted by the State. It is important to note that in all the above cases it is not necessary to obtain the President's assent prior to the passing of the Bill. This defect, as per the provisions of Article 255, can be cured by subsequent assent to the State law by the President.
Articles 200 and 201 provide a mechanism through which the Governor of a State can reserve a State Bill for Presidential consideration in the above mentioned situations. 10 Apart from this, these Articles make general provisions enabling a Governor to reserve a Bill for the consideration of the President as and when he sees fit. Though Article 200 empowers the Governor to reserve State Bills for Presidential consideration in situations not included in the ones discussed previously, it does not specify a set of requirements or conditions that have to be followed or satisfied before the Governor can make such a reservation. On the face of it, thus, it seems that the Governor's discretion is the only factor involved. However certain situations have emerged since the Constitution came into force, when Governors invariably reserve a State Bill for the consideration of the President. These are: 1) when the State Bill is patently unconstitutional 2) when the Bill derogates from the sovereignty, integrity and unity of the country 3) when the Bill is ex facie in conflict with a Central law 4) when the Bill has adverse effects on the legitimate interests of the people of another State.
Similar to the lack of parameters that the Governor has to follow, is the lack of any specifications as to what the Central Executive has to take into consideration before assenting or dissenting to a State Bill so reserved. The Central Executive is granted unrestricted power by Article 201, to examine and analyze the State Bill from all angles such as constitutionality and legislative competence. Perhaps the most important aspect of the process prescribed in Articles 200 and 201 is the scope of the choice given to the President to either assent to or reject the State Bill. When a Central Bill is sent to the President for assent, he can only send it back to Parliament once for reconsideration. If Parliament returns the Bill in an unchanged form, the President has no choice but to accord his assent to the Bill. This is not the case when a State Bill is sent to the President for consideration and assent. The President is not bound to give his assent even if the State Bill is sent to him a second time for approval, unchanged or not.
10 Vishweshvar Rao v. State of Madhya Pradesh, AIR 1952 SC 252.
Impact on the Nature of the Constitution It is clear from the discussion above that the Centre exercises a considerable amount of control over the legislative sphere occupied by the States. Central control over the legislative sphere occupied by the State is another unique characteristic feature of the Indian Constitution which is not generally found in other federal constitutions. If the provisions are examined it is apparent that they are meant to prevent the States from violating the sanctity of the Constitution. Even if these provisions go against the grain of federalism they are necessary to prevent the States from derogating from the mandate set out by the Constitution.
Emergency Provisions There are three types of emergency that can be imposed and they are contained in Articles 352, 356 and 360.
Article 352 Article 352 deals with the first type of emergency which is imposed when there is a threat to the security of the nation. As per the provisions of Article 352(1) this type of emergency can be imposed if the President is convinced of the existence of a threat to the security of India or any of its parts.11 The threat may arise out of war, external aggression or from armed rebellion. If the President is so convinced, then he has to make a declaration to this effect declaring an emergency in the whole or in any specific part of the country. The requirement imposed by Article 352(4) is that the proclamation of emergency under Article 352(1) has to be approved by Parliament within one month of its being made. As per the rule in Article 352(5) a fresh proclamation has to be issued and approved by Parliament after every six months.
When a state of emergency is in place the following changes take place in the Centre-State relationship: 1. Parliament is entitled to legislate upon any matter contained in the State List, and such a law remains in operation until six months after the proclamation itself ceases, as is mandated in Article 250(2). This, however does not take away the powers of the state to legislate on the subjects in List II and List III of the Seventh Schedule. It just means that the Centre is given concurrent jurisdiction over the State List so as to enable it to pass uniform laws for all the States in order to deal with the problems of the situation. According to Article 251 the Central law would override the State law even when the laws deal with a matter contained in 11 Attorney General of India v. Amratlal Prajivandas, (1994) 5 SCC 54
the State List. As per the proviso to Article 353, If the emergency is imposed only in a part of the country, then Central laws on State subjects are operative only in those parts where the emergency has been imposed. 12 2. The distribution of powers between the Centre and the states is not only affected in the legislative but also in the executive sphere. Article 353(a) enables the Centre to issue directions to the States with regard to the manner in which the States exercise their executive powers. Parliament can confer executive powers on the Centre or its authorities even when the subject of the powers is contained in the State List. 3. The third distortion of the distribution of powers is in the sphere of revenue distribution between the Centre and the States. Any of the provisions contained in Articles 268 to 279 can be put into effect along with the modifications made by the President. The period of operation of these provisions ends at the end of the financial year in which the proclamation cease to exist. 4. Any tax, falling under the State List, can be levied by the Centre during an emergency as laid down in Article 250. The effect of the above provisions is that , even though during an emergency the States continue to fulfill their constitutional mandate, the Center's powers with respect to control over the legislative, executive and taxing powers of the States, is greatly enhanced.
Article 356 Articles 356 and 357 create a mechanism to be employed when there is a breakdown of constitutional machinery in any State. If the President, on the report of the Governor, is satisfied that there has been a breakdown of constitutional machinery in the State can declare President's rule in that State13. Some instances when this is possible are: 1. No party in the State Assembly has a clear majority to form a government. 2. Defections from the ruling party cause it to lose its majority and ther can be no alternate government formed. 3. The government may be involved in activities which are derogatory to the mandate set for it by the Constitution. 4. The State Government fails to follow the directions issued by the Centre when it is bound to do so under the Constitution. 5. The security of the state is under threat due to a widespread breakdown in law and order. 6. In some very rare cases Article 356 read with Article 355 may be used to impose President's 12 Naga People's Movement for Human Rights v. Union of India, (1998) 2 SCC 109. 13 Rameshwar Prasad Iv. Union of India, (2006) 2 SCC 1.
rule when there are serious cases of corruption against the State Executive.
In order to give effect to the resolution passed under Article 356(1), it is placed before Parliament. Normally the proclamation is meant to last only for a period of two months, after which it lapses automatically. However, if President's rule is to be imposed for a longer period of time then the resolution has to be approved by both Houses of Parliament. The maximum period for which a State can be under President's rule is three years, subsequent to which there has to be a reversion to the normal constitutional machinery in the State.
The effects of passing a resolution under Article 356(1) are as follows: 1. The President assumes to himself all the powers of the Governor as per the provisions of Article 356(1)(a). As a part of these powers the President can either decide to dissolve or retain the State Legislature. 14 2. Concurrent to the President assuming the powers of the Governor, Parliament assumes the powers of the State Legislature. Out of considerations for expediency, Parliament passes an Act under Article 357(1)(a) empowering the President to legislate for the State concerned. Parliament may modify any Act passed by the President for that State and as per general practice a Parliamentary Committee, consisting of all Members of Parliament from the State, is formed to assist the President in legislating for that State. 3. The Governor acts as the representative of the President in the State. Instead of being accountable to the State Government, the Governor becomes accountable to the Central Government.
Article 360 Financial emergency is the third type of emergency and is dealt with in Article 360. If it is to the satisfaction of the President that the financial stability or credit of the country is under threat, then the President can proclaim a financial emergency under Article 360. The effect of such a proclamation is as follows: 1. The Centre may issue directions regarding fiscal measures and this may include a reduce in salaries of all or a class of persons serving the state as laid down in Article 360(4)(a)(i) 2. Article 360(4)(a)(ii) lays down that the Centre may require any Bill involving expenditure from the State Consolidated Fund to be reserved for Presidential consideration.
Article 360(2) says that if the proclamation is not approved by both Houses of Parliament then it 14 Sunderlal Patwa v. Union of India, AIR 1993 MP 214.
automatically lapses after two months from the date that the proclamation was made.
Impact on the Nature of the Constitution It can be said that the Indian Constitution is a product of two conflicting but equally important considerations, one representing the national leader’s normative concern for India’s unique personality and the other over-emphasizing the concern for national unity, integrity and security. As a result, the framers of the Constitution opted for a semi-hegemonic federal structure where the balance is in favor of the Centre.
Emergency provisions contained in Articles 352,356 and 360 are an expression of the second consideration, that is, one of the security unity and integrity of the country. In addition to this the framers wanted to include provisions in the Indian Constitution which would take away the disadvantages that plague other federal constitutions in this regard. For example in the United States during the World Wars the judiciary had to come to the rescue by interpreting their constitution liberally in order to give the Federal Government emergency powers. By including Article 352, the framers made it easy for future governments to deal with situations where the security of the country was at stake.
Article 356 has quite a historical connotation to it. When India was formed by merging British India and the Princely States, there was the fear of fissiparous forces tearing the country apart. To prevent chaos from taking hold of major parts of the country, the concept of President's rule was employed. By employing this method the State would come under direct control of the Centre which could then take decisive action to prevent the breakdown of government in that part of the country.
It can be inferred from the discussion above that the Indian Constitution deviates from general rule followed while drafting a federal constitution. A strong tendency towards a unitary form of government is demonstrated by these three Articles. It can also be concluded that, considering the unique circumstance in which the country was formed this tendency is not only justified but also necessary.
Territorial Integrity of States Articles 3 and 4 of the Constitution enable Parliament to enact laws which bring into effect the inter se reorganisation of States. Article 3 states that Parliament can reorganise the States by merging two States, by dividing a State or by altering the name or boundary of one or more States.
There are two requirements that need to be satisfied before any reorganisation of states takes place. They are: 1. The recommendation of the President is mandatory when any such Bill is introduced in either House of Parliament. 2. In order to afford an opportunity to the concerned state Legislature to express its views on the reorganisation, the Bill has to be referred to that State Legislature.
Even though it is necessary for Parliament to refer the reorganisation Bill to the concerned State Legislature, the views expressed by the State Legislature are not binding upon Parliament. Parliament is free to reject or accept the views of the State Legislature. Further if after the Bill has been sent back to Parliament by the State Legislature along with its views and Parliament amends the Bill, Parliament is not required to send the Bill back to the State Legislature. 15
Article 4 provides a facilitating mechanism through which Parliament can meet all the requirements for creating a new State, such as formation of a Legislature with the minimum number of seats required.
Impact on the Nature of the Constitution
Federations around the World contain the basic characteristic of territorial integrity of the States that constitute the Federation. The States at the least have to consent to the reorganisation before the Centre can take any such measures. For example in the United States, the consent of the State Legislature is essential prior to the reorganisation of that State. 16 In Australia along with the States Legislature the residents of that State too, have to agree to the reorganisation. In India on the other hand, though Parliament cannot arbitrarily use the power given to it under Article 3, there is no need for the State itself to consent to the reorganisation.
A historical perspective would be helpful in understanding why the centre has been given so much power under Article 3. When the Constitution was being drafted, the Princely States had not all joined the Federation. To facilitate this merger this Article was imperative. Secondly it was obvious, even then, that reorganisation on a massive scale based on linguistic lines, was inevitable. This led to the inclusion of Article 3 in the Constitution.
It is apparent on the face of it that when it comes to the matter of territorial integrity of the States, 15 Babulal Parate v. State of Bombay, AIR 1960 SC 51 16
the character of the Constitution cannot be said to be strictly Federal. The focus, since Independence, has been to integrate the disparate States to form a strong Union. This has led the Constitution towards unitary tendencies by assigning to the Centre extensive powers to inter se reorganise the existing States.
Other Factors which Contribute to the Quasi Federal Nature of the Constitution The first consideration to be taken note of is that India follows a system of single citizenship. Federations such as the United States have a system of dual citizenship where any person is a citizen of the State as well as the country. From the system followed in India, it can be inferred that the focus is on the Union of States and not the States themselves.
The second consideration is with regard to the system of courts. In the United States there are separate systems of courts for federal and state laws. In India there is a unified judiciary which again hints at the emphasis on the integrity and unity of the country.
Chapter III Judicial Interpretation
The labels assigned to our Constitution as it being unitary, federal or quasi federal has troubled the Supreme Court over the years. It was in the case of State of West Bengal v. Union of India 17 that this issue was first debated. In this case the issue was with regard to the use of sovereign powers by the States. The main issue involved in this case was the exercise of sovereign powers by the Indian states. The issue of federalism was examined in connection with the question regarding the ability of the Union to pass laws acquiring land owned by the States.
The apex court held that the Indian Constitution did not propound a principle of absolute federalism. It was also held that the reason for decentralising authority was for convenience of governance. Labeling the Constitution as a non-traditional federal constitution, the Supreme Court outlined the following characteristics which disqualify it from being categorised as a traditional federal constitution. 1. there is no separate Constitution for each State as is required in a federal state. The Constitution is the supreme document, which governs all the states. 2. the Constitution is liable to be altered by the Union Parliament alone and the units of the country i.e. the States have no power to alter it. 3. the distribution of powers is to facilitate local governance by the states and national policies to be decided by the Centre and 4. as against a federal Constitution, which contains internal checks and balances, the Indian Constitution renders supreme power upon the courts to invalidate any action violative of the Constitution.
The Supreme Court also held that both the legislative and executive powers of the States are subservient to the respective supreme powers of the Centre. It was stated in this case that the legal sovereignty of the Indian nation is vested in the people of India and the political sovereignty is distributed between the Union and the States with greater weightage in favor of the Union. Thus, the learned judges concluded that the structure of the Indian Union as provided by the Constitution one is centralized, with the States occupying a secondary position vis-à-vis the Centre, hence the 17State of West Bengal v. Union of India, AIR 1963 SC 1241
Centre possessed the requisite powers to acquire properties belonging to States.
The minority opinion in this case was expressed by Justice Subba Rao. He stated that just because the Centre had more resources politically and financially and the States had to be subservient to the superior legislative and executive powers, the federal nature of the Constitution could not be discounted.
The case of State of Rajasthan v. Union of India 18 was the next landmark case in which this issue was addressed. An attempt was made in this case to discuss the abstract principles of federalism keeping in view the provisions of the Constitution. It was stated that even if it is possible to see a federal structure behind the establishment of separate executive, legislative and judicial organs in the States, it is apparent from the provision illustrated in Article 356 that the Union Government is entitled to enforce its own views regarding the administration and granting of power in the States.
The Supreme Court held that he extent of federalism of the Indian Union is largely watered down by the needs of progress, development and making the nation integrated, politically and economically co-ordinated, and socially and spiritually uplifted. The prerogative of the Centre to issue directions which were beneficial to the residents of that State was stressed upon as being a clear demonstration of the fact that the Constitution was not federal in nature.
Four opinions were expressed by the members of the Judiciary involved in the case of S.R. Bommai v. Union of India .19 Justice Ahmadi expressed his doubts as to the federal nature of the Constitution as firstly there is no mention of the word federal or federation anywhere in the Constitution and secondly the powers given to the Centre under Articles 2 and 3, emergency powers, single citizenship and residuary powers made the distribution of power, a basic feature of any federation, biased towards the Centre. Thus, it would be more appropriate to describe the Constitution of India as quasi federal or unitary rather than a federal Constitution in the true nature of the term.
In opposition to the view expressed by Justice Ahmadi, Justice Sawant and Justice Kuldip Singh labeled democracy and federalism as vital features of the Indian Constitution. They opined that federal character of the Indian Constitution was not in any way derogated from by the emergency powers available to the Centre as “every State is constituent political unit and has to have an
exclusive Executive and Legislature elected and constituted by the same process as the Union Government.” 18 State of Rajasthan v. Union of India, AIR 1984 SC 1675 19 S.R. Bommai v. Union of India, (1994) 3 SCC 1
Territorial integrity of the States, according to Justice Ramaswamy, was not guaranteed because the federation had no historical roots. In his opinion, the end sought to be achieved by the Constitution makers was to place the whole country under the control of a unified Central Government, while the States were allowed to exercise their sovereign powers within their legislative, executive and administrative powers. Justice Ramaswamy categorised the Indian Constitution as upholding the principles of organic federalism with unique features to deal with the unique circumstance in the country
Justice Jeevan Reddy and Justice Agarwal stated that the terms federal or federal form of government has no concrete meaning. According to them even tough the Constitution is distinct in character, a federation with a bias in favor of the Centre, this consideration does not reduce the States to mere appendages of the Centre and within the sphere assigned to them the States are supreme.
Since then the view of the Judiciary has been that the Constitution provides for a federal framework with a strong Centre in order to prevent the country from disintegrating. In the Keshavananda
Bharti20 case a portion of the judges constituting the full Constitutional Bench held federalism to be one of the basic features of the Indian Constitution. In Sat Pal v. State of Punjab 21, the Supreme Court opined that the Constitution is a combination of federal structure with unitary features. In the case of Pradeep Jain v. Union of India 22, the Supreme Court expressed a pragmatic opinion while explaining the federal concept in connection to the the unified legal system in India. It was held that India is not a federal State in the traditional sense of that term as it is not a compact of sovereign States which have come together to form a federation by ceding undoubtedly federal features.
20 Keshavananda Bharti v. State of Kerala, ( 1973) 4 SCC 225 21 Sat Pal v. State of Punjab, Air 1996 SC 201
22 Pradeep Jain v. Union of India, ( 1984) 3 SCC 654
Conclusion
The aim of this research paper was to prove that the nature of the Indian Constitution can be termed to be quasi federal. To this end provision of the Constitution which demonstrate tendencies towards a unitary form of governance were examined. The power of the Centre to legislate on State subjects as under Articles 249 to 253 was discussed. From this discussion it could be concluded that the Constitution does deviate from general federal principles and that this deviation was necessary to prevent the rigidity of distribution of powers from hindering effective legislation in dealing with emergent situations.
Articles 200 and 201 were examined to prove that Central control over State legislation was needed especially at the time that the Constitution came into force. Probably the best example of the Constitution's tendency towards the unitary form are the emergency provisions contained in articles 352, 356 and 360 of the Constitution. Considering the situations that have arisen in the past and the volatile conditions prevalent in the country it was concluded that these provisions, which contribute greatly to the quasi federal nature of the Constitution, are absolutely necessary to protect the unity, integrity and security of the nation. To further satisfy this need and to make the process of governance easier, the provisions of Articles 3and 4 are necessary even though they take away from the federal character of the Constitution. Other factors such as a unified judiciary and single citizenship too contribute to the quasi federal nature of the Constitution.
It can be safely concluded from the prior discussion that the Constitution is not federal in the traditional sense of the term and has a strong tendency towards the unitary form of governance which is both justifiable and necessary as the Constitution has to cater to the unique circumstances prevalent in India.
Bibliography