Federal System

Federal System

Political scientists have classified governments into unitary and federal on the basis of the
nature of relations between the national government and the regional governments. By
definition, a unitary government is one in which all the powers are vested in the national
government and the regional governments, if at all exist, derive their authority from the national
government. A federal government, on the other hand, is one in which powers are divided between
the national government and the regional governments by the Constitution itself and both operate in
their respective jurisdictions independently. Britain, France, Japan, China, Italy, Belgium, Norway,
Sweden, Spain and so on have the unitary model of government while the US, Switzerland, Australia,
Canada, Russia, Brazil, Argentina and so on have the federal model of government. In a federal
model, the national government is known as the Federal government or the Central government or the
Union government and the regional government is known as the state government or the provincial
government.

The term ‘federation’ is drived from a Latin word foedus which means ‘treaty’ or ‘agreement’. Thus,
a federation is a new state (political system) which is formed through a treaty or an agreement
between the various units. The units of a federation are known by various names like states (as in US)
or cantons (as in Switzerland) or provinces (as in Canada) or republics (as in Russia).

A federation can be formed in two ways, that is, by way of integration or by way of disintegration. In
the first case, a number of militarily weak or economically backward states (independent) come
together to form a big and a strong union, as for example, the US. In the second case, a big unitary
state is converted into a federation by granting autonomy to the provinces to promote regional interest
(for example, Canada). The US is the first and the oldest federation in the world. It was formed in
1787 following the American Revolution (1775–83). It comprises 50 states (originally 13 states) and
is taken as the model of federation. The Canadian Federation, comprising 10 provinces (originally 4
provinces) is also quite old—formed in 1867.

The Constitution of India provides for a federal system of government in the country. The framers
adopted the federal system due to two main reasons—the large size of the country and its sociocultural
diversity. They realised that the federal system not only ensures the efficient governance of
the country but also re-conciles national unity with regional autonomy.

However, the term ‘federation’ has no where been used in the Constitution. Instead, Article 1 of the
Constitution describes India as a ‘Union of States’. According to Dr B R Ambedkar, the phrase
‘Union of States’ has been preferred to ‘Federation of States’ to indicate two things: (i) the Indian
federation is not the result of an agreement among the states like the American federation; and (ii) the
states have no right to secede from the federation. The federation is union because it is
indestructible.1

The Indian federal system is based on the ‘Canadian model’ and not on the ‘American model’. The
‘Canadian model’ differs fundamentally from the ‘American model’ in so far as it establishes a very
strong centre. The Indian federation resembles the Candian federation (i) in its formation (i.e., by way
of disintegration); (ii) in its preference to the term ‘Union’ (the Canadian federation is also called a
‘Union’); and (iii) in its centralising tendency (i.e., vesting more powers in the centre vis-a-vis the
states).

FEDERAL FEATURES OF THE CONSTITUTION

The federal features of the Constitution of India are explained below:

1. Dual Polity

The Constitution establishes a dual polity consisting the Union at the Centre and the states at the
periphery. Each is endowed with sovereign powers to be exercised in the field assigned to them
respectively by the Constitution. The Union government deals with the matters of national importance
like defence, foreign affairs, currency, communication and so on. The state governments, on the other
hand, look after the matters of regional and local importance like public order, agriculture, health,
local government and so on.

2. Written Constitution

The Constitution is not only a written document but also the lengthiest Constitution of the world.
Originally, it contained a Preamble, 395 Articles (divided into 22 Parts) and 8 Schedules.2 At present
(2013), it consists of a Preamble, about 465 Articles (divided into 25 Parts) and 12 Schedules.3 It
specifies the structure, orga-nisation, powers and functions of both the Central and state governments
and prescribes the limits within which they must operate. Thus, it avoids the misunderstandings and
disagreements between the two.

3. Division of Powers

The Constitution divided the powers between the Centre and the states in terms of the Union List,
State List and Concurrent List in the Seventh Schedule. The Union List consists of 100 subjects
(originally 97), the State List 61 subjects (originally 66) and the Concurrent List 52 subjects
(originally 47). Both the Centre and the states can make laws on the subjects of the concurrent list, but
in case of a conflict, the Central law prevails. The residuary subjects (ie, which are not mentioned in
any of the three lists) are given to the Centre.

4. Supremacy of the Constitution

The Constitution is the supreme (or the highest) law of the land. The laws enacted by the Centre and
the states must confirm to its provisions. Otherwise, they can be declared invalid by the Supreme
Court or the high courts through their power of judicial review. Thus, the organs of the government
(legislative, executive and judicial) at both the levels must operate within the jurisdiction prescribed
by the Constitution.

5. Rigid Constitution

The division of powers established by the Constitution as well as the supremacy of the Constitution
can be maintained only if the method of its amendment is rigid. Hence, the Constitution is rigid to the
extent that those provisions which are concerned with the federal structure (i.e., Centre–state
relations and judicial organi-sation) can be amended only by the joint action of the Central and state
governments. Such provisions require for their amendment a special majority4 of the Parliament and
also an approval of half of the state legislatures.

6. Independent Judiciary

The Constitution establishes an independent judiciary headed by the Supreme Court for two purposes:
one, to protect the supremacy of the Constitution by exercising the power of judicial review; and two,
to settle the disputes between the Centre and the states or between the states. The Constitution
contains various measures like security of tenure to judges, fixed service conditions and so on to
make the judiciary independent of the government.

7. Bicameralism

The Constitution provides for a bicameral legislature consisting of an Upper House (Rajya Sabha)
and a Lower House (Lok Sabha). The Rajya Sabha represents the states of Indian Federation, while
the Lok Sabha represents the people of India as a whole. The Rajya Sabha (even though a less
powerful chamber) is required to maintain the federal equilibrium by protecting the interests of the
states against the undue interference of the Centre.

UNITARY FEATURES OF THE CONSTITUTION

Besides the above federal features, the Indian Constitution also possesses the following unitary or
non-federal features:

1. Strong Centre

The division of powers is in favour of the Centre and highly inequitable from the federal angle.
Firstly, the Union List contains more subjects than the State List. Secondly, the more important
subjects have been included in the Union List. Thirdly, the Centre has overriding authority over the
Concurrent List. Finally, the residuary powers have also been left with the Centre, while in the US,
they are vested in the states. Thus, the Constitution has made the Centre very strong.

2. States Not Indestructible

Unlike in other federations, the states in India have no right to territorial integrity. The Parliament can
by unilateral action change the area, boundaries or name of any state. Moreover, it requires only a
simple majority and not a special majority. Hence, the Indian Federation is “an indestructible Union
of destructible states”. The American Federation, on the other hand, is described as “an indestructible
Union of indestructible states”.

3. Single Constitution

Usually, in a federation, the states have the right to frame their own Constitution separate from that of
the Centre. In India, on the contrary, no such power is given to the states. The Constitution of India
embodies not only the Constitution of the Centre but also those of the states. Both the Centre and the
states must operate within this single-frame. The only exception in this regard is the case of Jammu
and Kashmir which has its own (state) Constitution.5

4. Flexibility of the Constitution

The process of constitutional amendment is less rigid than what is found in other federations. The
bulk of the Constitution can be amended by the unilateral action of the Parliament, either by simple
majority or by special majority. Further, the power to initiate an amendment to the Constitution lies
only with the Centre. In US, the states can also propose an amendment to the Constitution.

5. No Equality of State Representation

The states are given representation in the Rajya Sabha on the basis of population. Hence, the
membership varies from 1 to 31. In US, on the other hand, the principle of equality of representation
of states in the Upper House is fully recognised. Thus, the American Senate has 100 members, two
from each state. This principle is regarded as a safeguard for smaller states.

6. Emergency Provisions

The Constitution stipulates three types of emergencies—national, state and financial. During an
emergency, the Central government becomes all powerful and the states go into the total control of the
Centre. It converts the federal structure into a unitary one without a formal amendment of the
Constitution. This kind of transformation is not found in any other federation.

7. Single Citizenship

In spite of a dual polity, the Constitution of India, like that of Canada, adopted the system of single
citizenship. There is only Indian Citizenship and no separate state citizenship. All citizens
irrespective of the state in which they are born or reside enjoy the same rights all over the country.
The other federal states like US, Switzerland and Australia have dual citizenship, that is, national
citizenship as well as state citizenship.

8. Integrated Judiciary

The Indian Constitution has established an integrated judicial system with the Supreme Court at the
top and the state high courts below it. This single system of courts enforces both the Central laws as
well as the state laws. In US, on the other hand, there is a double system of courts whereby the federal
laws are enforced by the federal judiciary and the state laws by the state judiciary.

9. All-India Services

In US, the Federal government and the state governments have their separate public services. In India
also, the Centre and the states have their separate public services. But, in addition, there are all-India
services (IAS, IPS, and IFS) which are common to both the Centre and the states. The members of
these services are recruited and trained by the Centre which also possess ultimate control over them.
Thus, these services violate the principle of federalism under the Constitution.

10. Integrated Audit Machinery

The Comptroller and Auditor-General of India audits the accounts of not only the Central government
but also those of the states. But, his appointment and removal is done by the president without
consulting the states. Hence, this office restricts the financial autonomy of the states. The American
Comptroller-General, on the contrary, has no role with respect to the accounts of the states.

11. Parliament’s Authority Over State List

Even in the limited sphere of authority allotted to them, the states do not have exclusive control. The
Parliament is empowered to legislate on any subject of the State List if Rajya Sabha passes a
resolution to that effect in the national interest. This means that the legislative competence of the
Parliament can be extended without amending the Constitution. Notably, this can be done when there
is no emergency of any kind.

12. Appointment of Governor

The governor, who is the head of the state, is appointed by the President. He holds office during the
pleasure of the President. He also acts as an agent of the Centre. Through him, the Centre exercises
control over the states. The American Constitution, on the contrary, provided for an elected head in
the states. In this respect, India adopted the Canadian system.

13. Integrated Election Machinery

The Election Commission conducts elections not only to the Central legislature but also to the state
legislatures. But, this body is constituted by the President and the states have no say in this matter.
The position is same with regard to the removal of its members as well. On the other hand, US has
separate machineries for the conduct of elections at the federal and state levels.

14. Veto Over State Bills

The governor is empowered to reserve certain types of bills passed by the state legislature for the
consideration of the President. The President can withhold his assent to such bills not only in the first
instance but also in the second instance. Thus, the President enjoys absolute veto (and not suspensive
veto) over state bills. But in US and Australia, the states are autonomous within their fields and there
is no provision for any such reservation.

CRITICAL EVALUATION OF THE FEDERAL SYSTEM

From the above, it is clear that the Constitution of India has deviated from the traditional federal
systems like US, Switzerland and Australia and incorporated a large number of unitary or non-federal
features, tilting the balance of power in favour of the Centre. This has promoted the Constitutional
experts to challenge the federal character of the Indian Constitution. Thus, KC Wheare described the
Constitution of India as “quasi-federal”. He remarked that “Indian Union is a unitary state with
subsidiary federal features rather than a federal state with subsidiary unitary features.”6

According to K Santhanam, the two factors have been responsible for increasing the unitary bias
(tendency of centralisation) of the Constitution. These are: (i) the dominance of the Centre in the
financial sphere and the dependence of the states upon the Central grants; and (ii) the emergence of a
powerful planning commission which controls the developmental process in the states. He observed:
“India has practically functioned as a unitary state though the Union and the states have tried to
function formally and legally as a federation.”7

However, there are other political scientists who do not agree with the above descriptions. Thus,
Paul Appleby8 characterises the Indian system as “extremely federal”. Morris Jones9 termed it as a
“bargaining federalism”. Ivor Jennings10 has described it as a “federation with a strong centralising
tendency”. He observed that “the Indian Constitution is mainly federal with unique safeguards for
enforcing national unity and growth”. Alexandrowicz11 stated that “India is a case sui generis (i.e.,
unique in character). Granville Austin12 called the Indian federalism as a “cooperative federalism”.
He said that though the Constitution of India has created a strong Central government, it has not made
the state governments weak and has not reduced them to the level of administrative agencies for the
execution of policies of the Central government. He described the Indian federation as “a new kind of
federation to meet India’s peculiar needs”.

On the nature of Indian Constitution, Dr B R Ambedkar made the following observation in the
Constituent Assembly: “The Constitution is a Federal Constitution in as much as it establishes a dual
polity. The Union is not a league of states, united in a loose relationship, nor are the states the
agencies of the Union, deriving powers from it. Both the Union and the states are created by the
Constitution, both derive their respective authority from the Constitution.”13

He further observed:
“Yet the Constitution avoids the tight mould of federalism and could be both unitary as well as
federal according to the requirements of time and circumstances”.14 While replying to the criticism of
over-centralisation in the Constitution, he stated: “A serious complaint is made on the ground that
there is too much centralisation and the states have been reduced to municipalities. It is clear that this
view is not only an exaggeration but is also founded on a misunderstanding of what exactly the
Constitution contrives to do.

As to the relations between the Centre and the states, it is necessary to
bear in mind the fundamental principle on which it rests. The basic principle of federalism is that the
legislative and executive authority is partitioned between the Centre and the states not by any law to
be made by the Centre but by the Constitution itself. This is what the Constitution does. The states are
in no way dependent upon the Centre for their legislative or executive authority. The states and the
Centre are co-equal in this matter. It is difficult to see how such a Constitution can be called
centralism. It is, therefore, wrong to say that the states have been placed under the Centre. The Centre
cannot by its own will alter the boundary of this partition. Nor can the judiciary”.15

I n Bommai case16 (1994), the Supreme Court laid down that the Constitution is federal and
characterised federalism as its ‘basic feature’. It observed: “The fact that under the scheme of our
Constitution, greater power is conferred upon the Centre vis-a-vis the states does not mean that the
states are mere appendages of the Centre. The states have an independent constitutional existence.

They are not satellites or agents of the Centre. Within the sphere allotted to them, the states are
supreme. The fact that during emergency and in certain other eventualities their powers are
overridden or invaded by the Centre is not destructive of the essential federal feature of the
Constitution. They are exceptions and the exceptions are not a rule.

Let it be said that the federalism in the Indian Constitution is not a matter of administrative convenience, but one of principle—the
outcome of our own process and a recognition of the ground realities”.

In fact, the federalism in India represents a compromise between the following two conflicting
considerations17:

(i) normal division of powers under which states enjoy autonomy within their own spheres; and
(ii) need for national integrity and a strong Union government under exceptional circumstances.
The following trends in the working of Indian political system reflects its federal spirit: (i) Territorial
disputes between states, for example, between Maharashtra and Karnataka over Belgaum; (ii)
Disputes between states over sharing of river water, for example, between Karnataka and Tamil
Nadu over Cauvery Water; (iii) The emergence of regional parties and their coming to power in states
like Andhra Pradesh, Tamil Nadu, etc.; (iv) The creation of new states to fulfil the regional
aspirations, for example, Mizoram or recently Jharkhand; (v) Demand of the states for more financial
grants from the Centre to meet their developmental needs; (vi) Assertion of autonomy by the states and
their resistance to the interference from the Centre; (vii) Supreme Court’s imposition of several
procedural limitations on the use of Article 356 (President’s Rule in the States) by the Centre.18

 

                                                                   NOTES

1. Constituent Assembly Debates, Volume VII, P. 43.

2. The American Constitution originally consisted only 7 Articles, the Australian 128 and the
Canadian 147.

3. The various amendments carried out since 1951 have deleted about 20 Articles and one Part
(VII) and added about 85 Articles, four Parts (IVA, IXA, IXB and XIVA) and four Schedules
(9,10,11 and 12).

4. A majority of 2/3 of the members of each House present and voting and a majority of the total
membership of each House.

5. Jammu and Kashmir enjoys a special status by virtue of Article 370 of the Constitution of
India.

6. K C Wheare: Federal Government, 1951, P. 28.

7. K Santhanam: Union-State Relations in India, 1960, PP. 50–70.

8. Paul Appleby: Public Administration in India, 1953, P. 51.

9. Morris Jones: The Government and Politics in India, 1960, P. 14.

10. Ivor Jennings: Some Characteristics of the Indian Constitution, 1953, P. 1.

11. C H Alexandrowicz: Constitutional Development in India, 1957, PP. 157–70.

12. Granville Austin: The Indian Constitution—Cornerstone of a Nation, Oxford, 1966,PP. 186–88.

13. Constituent Assembly Debates, Vol. VIII, P. 33.

14. Ibid, Vol.VII, PP. 33–34.

15. Dr B R Ambedkar’s speech in the Constituent Assembly on 25.11.1949 reproduced in The
Constitution and the Constituent Assembly; Lok Sabha Secretariat, 1990, P. 176.

16. S R Bommai v. Union of India (1994).

17. Subash C Kashyap: Our Parliament, National Book Trust, 1999 Edition, P. 40.

18. S R Bommai v. Union of India (1994). For the details of the judgement, see “President’s
Rule” in Chapter 16.