Nature of Indian Federalism
Federalism is a concept that describes the qualities of the society and keeps it articulated and protected. It is designed at both the regional and the national level to maintain unity among the states and the country.
Federalism means different things to different people. It is a modernized concept, which is generally followed in countries like USA, Russia, Argentina, Canada, Brazil, and Switzerland. The term “federation” is derived from the Latin word “Foedus” which means ‘Treaty or Agreement’. Thus, we can say that it is an agreement between two sets of government i.e., Central and the state.
“Indian Union is a unitary state with subsidiary federal features rather than a federal state with subsidiary unitary features.”, M. Laxmikanth.
The Constitution of India is neither a purely federal nor purely unitary but is a combination of both as a federal government is the one in which the powers are divided at the national and the regional level and both the levels operate independently. USA, Canada, Russia, Australia, Switzerland follow this system.
Unitary government is the government which is governed by a single power that is at the central level and the final decision is taken by the central only. Britain, France, Japan, China, Italy, Norway, Sweden, Spain follow this system.
The Indian Constitution is a mixture of flexibility and rigidity, i.e., certain provisions in the constitution can be amended easily and for some amendments, the changes cannot be made easily. Indian Constitution is written, has two levels of government, has bicameral legislature, and the constitution is supreme. These are few features of a federal government borrowed by India. India follows single citizenship, more power with the centre, although bicameral legislature, but unequal representation, and mixture of flexibility and rigidity. These are few features of the unitary government.
India has a few characteristics of unitary government and some of them represent the federal government. Thus, since Indian Constitution is a blend of both federal and unitary, it has a quasi-federal character. Hence, the Indian constitution is of a quasi-federal nature, which is more inclined towards the Centre.
Federalism is a concept that describes the qualities of society and keeps it articulated and protected. It is designed at both the regional and the national levels to maintain unity among the states and the country.
Federalism means different things to different people. It is a modernized concept, which is generally followed in countries like the USA, Russia, Argentina, Canada, Brazil, and Switzerland. The term “federation” is derived from the Latin word “Foedus” which means ‘Treaty or Agreement’. Thus, we can say that it is an agreement between two sets of government i.e., Central and the state. Federalism is a method of dividing the powers so that the regional and the central government are within their own sphere coordinating and are independent, without any interference. The work “Federalism” has appeared in the Swiss and the Australian Constitutions.
Federalism is a form that is followed by the federal government. The federal government is a type of government in which the powers of government are divided at two levels, that is at the national level and regional level. In the federal government, both these levels operate independently within their jurisdictions. From both these levels of government, the national government has more strength as compared to the regional level, but the strength keeps on changing from time to time depending upon the social-economic, and political conditions of the country.
The unitary form of government is the opposite of the federal government where the state is governed by the central government and has the power unified at a single level. In this form of government, the decision of the central government is considered Supreme. The majority of the states in the world have a unitary form of government. Around 165 of 193 UN member states follow unitary government like Britain, France, Japan, China, Italy, Norway, Sweden, Spain follows this system.
But India follows none of this form but is a combination of both these forms of government. The Constitution of India is neither purely federal nor purely unitary but is a combination of both as a federal government is the one in which the powers are divided at the national and the regional level and both the levels operate independently, whereas in unitary government, the government is governed by a single power that is at the central level and the final decision is taken by the central only.
Federalism generally has two aspects: static and dynamic, as it is a structure as well as a process that defines the governing of a state.
Features of Federal Government
Dual government- This is one of the features of the federal government where the government is present at two levels, that is, at the central and the state.
Division of powers – The powers in this form of government is divided between the States and the centre.
Written constitution- A federal government has a written constitution, where all the rules and regulations are already mentioned, and the citizens have to go by those rules and regulations only. This constitution defines the structure, the powers of each level, and the organization of these levels.
Rigid Constitution- This is one of the features of federalism, which means that the amendments to the constitution cannot be made easily, but can only be amended by joint action of both the houses or by any other independent authority.
Independent Judiciary- Since, in the federal government, the powers are divided at two levels, and both the levels are independent of their powers, so the judiciary for these are also independent, i.e., without interference. Example- In the USA, there is a federal government, that is for each state there is a separate supreme court, and no two states interfere with the powers of each other.
Bicameral Legislature- Since, in federalism, the government is divided into two powers, so to make the work easier, it follows a bicameral legislature, that is, two houses of parliament. Example- In India, the parliament is bicameral, i.e., it has two houses, Lok Sabha and Rajya Sabha.
The supremacy of the Constitution- Since it has a rigid constitution, the constitution is always considered supreme and stands at top of all laws for both the national and the state governments.
Features of Unitary Government
Unlike the federal government, which has two levels of government, a written constitution, etc, the unitary form of government is opposed to it, with different features.
Strong Centre: Since, in unitary government, there is only one level of the government, so that government is considered the strongest, and all the decisions given by the government are considered final. Example: In India, unitary features of government is followed, where the centre is given more power as compared to the state.
Single Constitution: Unlike, in the federal government, who have the right to make their constitution, the unitary government does not allow the right to make your constitution.
The flexibility of the constitution: As compared to the federal government, the constitution is rather more flexible, and making changes to the constitution is not a difficult task.
Single Citizenship: Unlike in the federal government, which provides you with dual citizenship, one of the states and one of the countries, but a unitary form of government allows citizenship for a country. It does not provide dual citizenship to any of its citizens. Example: In India, single citizenship is prevalent, unlike in the USA, where a person gets dual citizenship.
Existence of Union Territories: Union Territories are although sometimes considered a different state, they are not independent, but are governed by the central government.
Emergency Provision: Even in a unitary form of government, emergency provisions exist which are absent in the federal government.
Appointment of Governor by President: Governor is the head of the state, and with this, the appointment of the governor must be done by the state government, but the appointment is done by the President which is a complete violation of federalism.
Single Unified Judiciary: Unlike in federal government, were due to the two levels, the judiciary was independent, and none of the states’ judiciary interfered with the other, but in unitary government, only a single unified judiciary is present, that is, for any case, the final decision will be of the judiciary. Example: In India, a system of a single unified judiciary is followed, where the apex court is the Supreme Court, and the judgment given by the Supreme Court is considered final.
Centralized Election Machinery: There is only one election commission committee that conducts elections in both the centre and state.
Federalism in India
Since Indian constitution is the bag of borrowings, where the features are borrowed from several country’s constitution. The feature of Federalism is borrowed from Canada, where centre vests more power than the state.
Indian federalism was developed in order to built a strong united India and to uphold the values of national unity, cultural diversity, democracy, regional autonomy and rapid socio-economic transformations collectively in the entire state. From the beginning of the Regulating Act, 1773 to the Government of India Act, 1935, Indian Federalism was there, but the form of government that was followed was unitary and all the powers were conferred with the viceroy and the secretary of India. The process of decentralization of powers in India took place during the Montagu-Chelmsford Reforms, 1919. Through these reforms, the federal idea for India was expressed. During the declaration of 20th August, 1917, the establishment of a responsible government started to took place. Then, at a later stage, the federal solution was found in the Indian Statutory Commission’s Report, 1929 as it recommended a council for a larger and a greater India. So, the council included the Indian representatives and several Indian states, where the Viceroy was made the President. Later, a Round Table conference for the federal idea was also held at London in 1930. The Indian National Congress was out of this session. Tej Bahadur Sapru proposed the idea of a responsible self-government in the All India Federation.
The Government of India Act, 1919 was a stepping stone for India to laid the foundations for Indian Federalism. Gandhi-Irwin pact was also signed on 5th March, 1931, where Gandhi agreed to a federation. The Nehru Report also foreseen that the Indian Constitution should be of federal nature. The present constitution is a carbon copy of the Government of India Act, 1935- the blue print of the act, i.e., the current constitution has several elements from the Government of India Act, 1935.
In the case S.R.Bommai v Union of India, the federalism model followed in the US is invoked, thereby making it clear that it is a federation of states. Hence, are independent, sovereign in their territories. The territories in the federation of the states cannot be altered, but in India, the parliament has the power to admit new states, create new states, alter their boundaries and names, unite or divide the states. The court also noted the existence of several provisions of the constitution, that allowed the centre to override the powers of the state. In India, the residuary powers of legislation, i.e., to make law is not specified in the constitution, but in the US, the residuary powers are with the states. Thus, due to the mixture of features of the Indian Constitution with that of both federal and unitary form of government, the Indian Constitution is a “quasi-federal” constitution.
Features of Indian Constitution
India has the government at two levels, both the state and the centre.
Powers are divided between the centre and state, as mentioned in the seventh schedule of the Indian Constitution, which has three lists: Union, State, and the Concurrent lists. Since Federalism means distribution of powers of state between the centre and the state governments
The constitution is considered supreme. Its basic structure cannot be amended that is laid done by the judiciary. The constitution is considered the supreme law in India.
Indian constitution provides an independent and integrated judiciary, as the lower and district courts are at bottom levels, high courts at state levels, and the supreme court at the national level and is also at the topmost position. The judiciary is impartial and independent. The Supreme Court, being the highest court in India, can declare any law as unconstitutional if it contravenes any provisions of the constitution. In order to ensure impartiality of the judiciary, our judges cannot be removed by the executive. The Supreme Court and the High Court in India belong to the same integrated judicial system.
The Indian constitution is a written and rigid one. It is impossible to maintain the supremacy of the constitution and the division of powers between the state and the centre, until it is written down. Therefore, Indian constitution is a written constitution with 395 articles and 12 schedules, thereby fulfilling the basic requirement of a federal government. In fact, Indian Constitution is the largest constitution of the world. Being a rigid constitution, the procedure of amendment is difficult and is complicated. It cannot be changed or amended easily. All the federal state related provisions can be amended only by the joint actions of the state legislatures and the union parliament.
In India, bicameral legislation is followed, i.e., it has two houses of parliament at the centre- Lok Sabha, and the Rajya Sabha. Lok Sabha (Lower Court) consists of elected representatives of the people and Rajya Sabha (Upper House) consists of elected State Legislative Assemblies.
Indian Constitution is a mixture of flexibility and rigidity, i.e., certain provisions can easily be amended, but for some amendments, a joint session of houses is required and is not easy.
In India, more power lies with the centre, i.e., more power is guaranteed to the Union list. In the concurrent list, the parliament can make laws that can be overridden by the state on few matters, but generally, the state makes laws under the state list. The residuary powers are vested with the citizens. Both the centre and the state can make laws on the concurrent list, but in case there is a conflict between the two, the central law will prevail over the state law. Thus, showing that centre is strong in India.
Although there is bicameral legislation, in the upper house, there is an unequal representation, and the seats are based upon the population of the state. Example: Uttar Pradesh has 31 seats due to the highest population and Goa has 1 seat in Rajya Sabha due to less population.
In India, the executive in both the centre and the state is also considered the part of the legislature. Thus, with no proper division of the powers.
Lok Sabha is considered to be more powerful than Rajya Sabha as they are more in number and also Lok Sabha has more power over money-related matters, making it against the federal character.
The centre is provided with emergency powers. Thus, in case of emergency, the centre has increased control over states, thereby decreasing the autonomy of the state. The emergency powers are vested with the President. Article 352, in case there is an internal or external threat to the country’s security, unity and integrity. Article 356, if the constitutional machinery fails in the concerned state, also the state legislative assembly will dissolve and article 360 is applied when there is a threat to the country’s finance. During emergencies, the centre orders the states and provides them with the directions.
There is no separate judiciary at the centre and the state levels. The Indian judiciary is integrated and unified. The Supreme Court is the highest and the apex court in India. Supreme Court exercises the supervision and has a control over the functioning of all the courts including the High Courts. The Supreme Court is also known as the court of records and it binds writs of all spheres- civil, criminal and constitutional. This feature represents the unitary character of our constitution.
In India, only single citizenship is available to all the citizens, as they are not allowed to be the citizen of the state as well. Thus, fostering a feeling of nationality and unity among people. If a person is born in any state of India, he/she will be called as the Indian Citizens. This is against the federal structure which provides dual citizenship.
The centre has power to alter, admit, create new states, unite, or divide states, or create boundaries or change the names in India which is against the federal characteristics.
There is only one constitution for the union and the states, whereas federal government has two constitutions- one for each state and one for the entire country.
The president appoints the CAG, who audits the accounts of the centre and the state, appoints the governor, who is the constitutional head of the state and has all the executive powers of the state vested in him, and also appoints the members of the Election Commission, which is responsible to conduct free and fair elections at both the centre and the state level in India.
In India, the state government does not have the right to remove the government officials at the state level also, removing the election commissioner of a state, judges of the high courts, or the chairman of the state public service commissions is not the power of the state.
Indian Federal character is the mixture is different features like language, regionalism, and unity. At the same time, it is also based on supremacy of the centre over the state.
Dr. Ambedkar listed several features in our constitution that drafted our constitution and made it a legal document for providing justice to the people. In the constituent assembly in November 1949, the features he introduced were:
Article 246- It distributes the legislative powers between the Union and the states. It also provided the union an exclusive power to legislate on the matters in list 1 and concurrent power to legislate in list 3 of schedule 7 of the constitution.
Ar-248-Residuary Powers- It gave the parliament an exclusive power to make laws in matters not mentioned in the Concurrent List or State List.
Article 249- It gave Parliament power for the matters in the state list that were of national interest.
Article 250- It gave parliament the power to any matter in the state list, if an emergency is in operation.
Article 252- It gave parliament the power to legislate on two or more states with their consent.
Article 352 and 353- Proclamation of emergency and the effect of such proclamation.
Article 368- Amendment of the constitution.
Dr. Ambedkar drafted the Indian Constitution and thereby formed a document to provide justice to people across the country. Federalism is a concept that describes unity among the states and the centre. Thus, both constitutionally and politically, India’s federal system is of a union type in which the financial balance is over the centre. Therefore, India has a few characteristics of a unitary government and some of them represent the federal government. Hence, the Indian constitution is quasi-federal, which is more inclined towards the Centre. Thus, the Indian Union is a unitary state with subsidiary federal features rather than a federal state with subsidiary unitary features.
The Constitution of India
Author: Deepshikha Gautam
Article name: The nature of Indian Constitution
Published on: Dec 31, 2019
Author: Nishtha Pandey
Article Name: The Nature of the Indian Constitution
Published on: Jan 11, 2020
Article Name: Nature of Indian Constitution
Author: Shivani Sharma
Published on: Sep 18, 2019
Published by: ignou- The people’s University
Article Name: NATURE OF INDIAN FEDERALISM
Article Name: [Answered]What is quasi-federalism? Is India a quasi-federal state?
By Isha Mittal