THE REWRITING OF INDIAN FEDERALISM:

Constitutional amendments, Statutory

Changes and the Executive power revisited.

Rajeev Dhavan
Rekha Saxena

Contents

I.

The Challenges to Indian Federalism.

II.

Changing the Federation: Equal Respect and Unequal

Treatment

III.

Executive Control of the Union.

IV.

Distributing the Legislative Power.

V.

Making the Federation Work

VI.

Into the Future

I.

The Challenges to Indian Federalism

All Constitutions are both in a state of being as well as becoming.

Time and the onslaught of old and new circumstances confront the working of
all constitutions. Under this pressure, some constitutions simply fold up to be
eclipsed by their successors. The Indian Constitution like many others
contains elaborate provisions of varying complexity to change the Constitution
requiring changes that affect aspects of the federal structure not only to be
passed by a two thirds majority in each house of the Union legislature but also
ratification by one half of the legislatures of the States. In what is now
recognized as a gift to constitutional theory, the Supreme Court of India in the
Fundamental Rights case (1973) issued a somber warning to over-enthusiastic
governments with parliamentary majorities the basic structure of the Indian
Constitution is inviolate and unalterable1. While there is no formal doubt that
federalism is part of the basic structure of the Constitution, a large number of the
amendments to Indias Constitution have impacted on the federal structure. No
less, constitutional change is not just effected by formal amendments but
through the exercise of executive and legislative power as well as the vast
number of pressures and practices that keep a constitution in place to determine
its working agenda.
But, irrespective of the source and circumstances that have changed Indian
federalism, there is little dispute that over the last six decades, Indian federalism
has changed beyond recognition2. The Indian federation has been geographically
re-designed. The entire federation underwent change. Several states have been
split into smaller new States. Thus, even the territories of a State are not
permanent or inviolate. In some States, intermediate forms of tribal and other
governance mechanism have been set up. In 1992, the Constitution was
amended to superimpose a three tier structure of constitutionally entrenched
local government to re-structure federal governance. Various aspects of the
federation have changed in both theory and practice through uses and abuses of
the executive and legislative power. The re-writing of Indian federalism has not
always been imposed from above but also reflects the aspirations of regional
claims arising out of the huge diversity of faiths, cultures, loyalties and
ambitions that inhabit the Indian sub-continent3.

India as a modern nation emerged in 1947. It is arguable that all modern nations
are imagined communities which have been invented with the help of the
3

media and print capitalism to draw disparate identities into the new construct of
the modern nation. Despite the fact that aspects of a common heritage span
across its many regions and localities, what draws the Indian people together is
an idea of India enclosing within its social, political and geographical terrain
many innumerable Indias anxious for acceptance and recognition amidst what
has been described as Indias million Mutinies4. There is, thus, a constant
struggle between the idea of India encased by the formal federal structure and
the other Indias tenaciously looking for both large and small spaces within the
constitutional framework. It is too late to suggest the imagined community or
idea of India which has been created over the decades can be dispensed with or
wished out of existence. It is as real as the forces that created it. But, such an
India has to confront and, where necessary, yield to the various other Indias
that compose the whole. It is this struggle and the responses to it that have redefined Indian federalism.
In order to comprehend the vast changes made in the federation, a short excursus
into Indias contemporary history is necessary. Indias painful transition from
British Rule resulted in the Partition of India into India and Pakistan. Had the
Indian Independence Act 1947 been taken to its illogical conclusion, the subcontinent could have been balkanized. Theoretically, the 572 Princely States
could have remained on their own. But, immediately following Partition, all the
Princely States opted to join either India or Pakistan5. This took place fairly
smoothly even though Pakistan continues to dispute Kashmirs accession to
India. Following Independence, both States embarked on the task of creating
constitutions for their people. Pakistan which decided to become an Islamic
republic has been through unsettled experiments in constitution making.
Following the deliberations of its Constituent Assembly (1946-50), Indias
Constitution came into being in 1950 and has been amended on 92 occassions in
its first 55 years amidst conditions of working stability6.
The task before India was to create a constitution for a civilization7. India has a
diversity of peoples, religions, cultures, traditions, languages and regions which
knows no parallel. Indias decision to become a secular state meant that this rich
and ebullient diversity had to be accommodated within the framework of a
parliamentary, democratic, secular, federal republic. Although important, it was
not enough to create a Bill of Rights which would assure human rights and equal
opportunities for all irrespective of caste, colour or creed. The system of
governance was designed and re-designed so that group aspirations found
recognition in the structure of federal governance.

Indias experiments with federal governance have to be located in their context.

The Indian federation covers an area of 3,287,263 square kms and a population
of 1027 million. Indias population has increased from 361 million in 1951, to
439 million in 1962 to 683 million in 1981 to 844 million in 1991 to 1.2 billion
in 2001. In 1950, the original Constitution envisaged 9 Part A states (hitherto
directly ruled by the British) 9 Part B States (consisting of former Princely
States) and 10 Part C States (consisting of various lesser territories ruled by the
British). In 1956, this pattern was entirely changed by parliamentary legislation
to accommodate linguistic and cultural demands. The original scheme was
abolished and India was sub-divided into a federation of States and Union
Territories. Today the Indian federation consists of 28 States and 7 Union
Territories. These federating units vary widely in area and population. Among
the states, Rajasthan with 342,239 sq.kms. is the largest in terms of area and Goa
with 3,702 sq.kms. is the smallest. Population-wise, Uttar Pradesh with
166,052,859 people is the largest and Sikkim with 540,493 people is the
smallest. In terms of wealth, Goa with an average per capita annual income of
Rs.45,105 is at the top and Bihar with a per capita income of Rs.5,108 is at the
bottom8. Given its size, population and cultural diversity, it has been suggested
that, perhaps, India should consist of 100 or more states to accommodate the
many demands of diverse peoples to devise self governance within the
federation. Significantly, the Constitution permits the Union legislature to redraw the geography of the federation.
India has a vast religious, linguistic and cultural diversity. It is estimated that
India has some 82.8% Hindus who are further sub-divided into a vast number of
sub-faiths and sects. With 11.7% Muslims India is the second largest Muslim
country in the world with more Muslims than neighbouring Pakistan but less
than Bangladesh. Its 2.3% Christians approximate the entire population of
Australia. The Jain and Buddhist faiths emanated in India with 0.4 and 0.8
percent adherents respectively. India is home to Jews, Parsis, Zorastorians and
various other faiths which continue to be practised as part of the living tradition
of India9. The Constitution formally recognizes twenty languages in its Eighth
Schedule. Hindi and English are the official languages of the Union government
and ten state governments. In the rest of the states, the official languages are the
regional language of the states concerned and English. The linguistic
communities which have their own states are Hindi, Bengali, Telugu, Marathi,
Tamil, Gujarati, Kannada, Malayalam, Oriya, Punjabi, Assamese, Manipuri and
Kashmiri. The largest segment of the population is Hindi-speaking (40.22
percent) with English as an increasingly acceptable link language. The other
demographically prominent languages are Bengali (8.30 percent), Telugu (7.87
5

percent), Marathi (7.45 percent), Tamil (6.32 percent), Urdu (5.18 percent),
Gujarati (4.85 percent), Kannada (3.91 percent), Malayalam (3.62 percent),
Oriya (3.35 percent), Punjabi (2.79 percent), Assamese (1.56 percent), Sindhi
(0.25 percent), Manipuri (0.15 percent) and Kashmiri (0.01 percent). Each of the
major languages is written in a distinct script unrecognizable to the reader of
another script. Within and beyond the family of these languages are around 500
or more dialects amidst innumerable variations.
Apart from the multiplicity of religions and languages, India is composed of a
bewildering variety of cultures and traditions which compose the everyday lives
of Indias diverse peoples10. These diversities take the form of social and
political interests to manifest themselves as campaigns, political aspirations and
constitutional demands. Since Indias constitution congeals a considerable
flexibility, many of these aspirational demands are accommodated through
politics as well as a use of the executive, legislative and amendment power
flowing from the Constitution.
The challenge to Indian federalism to accommodate the vastness of Indias
plural demands within its constitutional structure was not easy. How was this to
be done ? Indias Constitution had borrowed the federal structure devised by the
British under the Government of India Act 1935, which was essentially based on
the revenue based law and order approach of the British Raj. The Constitution
of 1950 adapted the centrist features of the British Act of 1935 to create a
planned development model which was inspired by a combination of Americas
New Deal and Soviet Planning. The planned development model had to give
way to a cooperation bargaining model especially after 1967 when Indias
state legislatures were increasingly ruled by political parties different from those
at the Union. The Emergency (1975-77) flaunted the planned development
model to disguise its autocracy. But after 1977 - and more so 1989 when
relatively unstable unity and coalition government have ruled India at the Union
- India has been forced to reconsider how its federal governance has to be
bargained over, restructured and reworked.
II.

Changing the Federation : Equal Respect and Unequal Treatment

Indian federalism was designed and redesigned so as to meet the demands of a

vastly diverse society through a combined use of the amending, legislative and
executive power. The amending power has been used on several occasions to rework the constitutional design. By a simple use of the legislative power, the
geographic boundaries of existing states have been altered to create several
6

states out of the old ones. This process has continued from 1956; and is likely to
continue into the future11. Under certain circumstances the Union legislature can
take over or override the legislative power of the States. The executive power of
the Union does not just stretch to giving administrative and policy directions to
the States but includes the power to impose emergency rule to take over the
democratic governance of a State. The Union can exercise a veto on certain
kinds of legislation passed by the States which are reserved by the Governor for
consideration by the President. In tribal areas, where new structures of
governance can be created, the Governor can render the law of the Union or the
State inapplicable ! These examples militate against an egalitarian federalism
which should treat all states as inviolate in their territory and entitled to equal
treatment. But, Indian federalism has to be understood in its terms in the light of
its somewhat unique design to meet the ground realities of the past and the
future.
The principle of weighted and differentiated equality
Within Indian federalism, all States are equal, but some States are more equal or
unequal than others12. We have already shown how the original constitutional
scheme of a federation of three kinds of Part A, B and C States was transformed
into a combination of the States and the Union Territories. The States are
qualitatively different from the Union Territories (or UTs). The latter are less
autonomous and controlled in varying degrees by the Union. A separate Chapter
of the Constitution deals with the Union Territories. The Union Territories vary
in shape and size. At present, there are 7 Union territories. Goa was a UT, but
became a State in 1987. Some of the UTs (e.g. Delhi) have local legislatures
elected through a universal franchise. But, some UTs are directly governed by
the Union without any representation to the locals. The Union has the power to
make regulations for the UTs of Andaman and Nicobar, Lakshwadeep, Dadra
and Nagar Haweli, Daman and Diu and Pondicherry. Special provisions have
been made for Delhi over an area called the National Capital Territory of Delhi.
The power over land, the police and law and order in Delhi vests with the
Union. There is considerable controversy over whether Delhi should become a
State in its own right. But, the Union is reluctant to let the nations capital drift
wholly out of its direct control. The President retains various residuary controls
over the legislative and executive powers of the UTs whose administrators are
appointed by the Union. There are also Emergency powers to take over the
administration of the UT of Delhi if there is a failure of constitutional machinery
in that UT. But Parliament retains the overall power to alter both the judicial and
legislative governance of Delhi. Thus, without amending the Constitution,
7

Parliament can create a separate High Court for a UT. So far, the Union has
created a High Court only for the UT of Delhi. The rest of the UTs are judicially
governed by the High Court of the State to which they are in geographic
proximity. No less significantly, it is the Union legislature that has the power to
decide whether a UT should have its own elected Assembly and cabinet
government. So far, such assemblies and cabinet governments exist only in the
UTs of Delhi and Pondicherry. Created by the Constitution, the UTs are within
the legislative and executive control of the Union even if allowed autonomy
and representative government to varying degrees in different UTs.
If the UTs are unequal both to the States and inter se --, this pattern is repeated
though to a lesser extent in respect of the States. Various states of the Union
have been preferentially treated as more equal than others. Each State is entitled
to have their own Assemblies and a Cabinet government headed by a Chief
Minister. Elections to the Assembly are on a universal franchise. Through
constitutional amendments, only some States in India (namely Bihar,
Maharashtra, Karnataka and Uttar Pradesh) have bicameral legislatures. Most
States have independent High Courts except some States such as Punjab and
Haryana who share a High Court and the North Eastern States which have a
common High Court for seven States. The States are represented in the Lower
(Lok Sabha) and Upper (Rajya Sabha) House of the Union legislature. But, their
representation in the Union Parliament is not equal. Representation in the Union
Parliament are broadly measured in terms of the population. The Lok Sabha is
directly elected, whilst the Rajya Sabha members are elected from the State
legislatures. The Union Parliament and the State Assemblies constitute the
electoral college for the election of the President and Vice President. Thus,
larger states have an edge over the smaller ones.
But even the broadly based demographic equality of States is broken on the
basis of special provisions being made for special states on the basis of special
needs and circumstances. First and foremost in this configuration is the State of
Jammu and Kashmir (JK) which has a special status and is uniquely allowed to
have its own subordinate Constitution. This was largely done because of the
manner of the accession of JK to India in 1947 and because of the continuing
dispute over Kashmir with Pakistan. Subject to an overall control and without
questioning that Kashmir is an integral part of India, it is for the Union
executive to decide which parts of the Indian Constitution and which laws shall
apply to JK in consultation with the Government of the JK. Demands for the
repeal of JKs special status to make Indian federalism uniform are usually made
by Hindu fundamentalists and show lack of understanding and sagacity. But, the
8

controversy goes on. JK remains an example of how special parts of a

federation need to be given special consideration13. There may be something to
be learnt from this - as from the Chinese Union which has also adapted the
principle of special treatment or weighted equality in a somewhat different
way14.
But, it is not JK alone that had been given special consideration and status by the
Constitution. There is a family of Articles in the Constitution which give special
status to Maharashtra, Gujarat, Nagaland, Assam, Manipur, Andhra Pradesh,
Sikkim, Mizoram, Arunachal Pradesh, Goa. There are even special provisions
which state that particular States of Bihar, Madhya Pradesh and Orissa must
have a Minister of Tribal Welfare. The reason for these special arrangements
states is not grounded in any antecedent treaty as in the case of JK. Much rather,
the main concern has been to protect and make special provisions for tribals and
others as part of a structural preferential treatment.
Special provisions in the Constitution deal with what are called the Scheduled
Areas for protection of tribals and others - some of whom retain a bow and
arrow culture. From our point of view, we need to examine the Fifth and Sixth
Schedules to the Constitution. The Fifth Schedule of the Constitution earmarks
certain areas within the existing States for special treatment. The Governor of
the State (no doubt on the advice of the Cabinet of the State) can declare that no
laws of the Union Parliament or the State shall apply to the scheduled areas in
question. One can only imagine the potential enormity of this legislative power
which includes the power to amend or repeal acts of Parliament and the State
legislature. If the President so decrees, the (Fifth) Schedule Areas are run by the
respective State Government in which they are situated with a help of Tribal
Advisory Council for the scheduled area concerned. But, if the Fifth Schedule
accords virtually plenary powers to the State Executive to alter federal and State
legislation, the Sixth Schedule (which is concerned with the Tribal areas of
Assam, Meghalaya, Tripura and Mizoram) is even more elaborate in its
dispensation. Here, certain autonomous districts and regions can be and have
been carved out to be governed by district and regional councils of their own
who can make laws on certain subjects applicable to their district or region,
including the power to constitute village courts. There are elaborate provisions
in respect of the application and non-application of State laws. Both these
Schedules can be amended by a simple Act of Parliament. But apart from the
Fifth and Sixth Schedules, there is a special power in the Constitution to create
an autonomous State of certain tribal areas in the State of Assam. These
elaborate provisions have been used to meet ethnic and tribal demands.
9

Devolutionary packages have been evolved to create regional development or

autonomous councils for the Gorkhas (1988), Bodos (1993), Jharkhand tribals
(1994), Ladakhis (1995) and more elaborately for the Bodos in 2003. This
rewrites federal governance to cater to the politics of collective identity without
necessarily putting the federation at risk under pressure from turmoil and threats
of secession15.
Some of these provisions enumerated above (or, at least some version of them)
were there in the original Constitution whilst, others have been brought about by
constitutional amendments. Indias Constitution was not brought together by
consenting states jealously arguing for parity of treatment. It came into being out
of peculiar historical circumstances which had to be accommodated within the
framework of a Constitution which was more concerned with dealing with
differences in a fair and just manner rather than to subscribe to some formal
principle of federal equality which, if implemented, would have resulted in
treating unequals equally. Flexibility was provided to deal with difference and
change without requiring an amendment to the Constitution. Some changes
including rendering Union and State legislations inapplicability in a special area
could be made by the State Governor. Eventually, the entire text of these
provisions could be re-written by the Union legislature.
Geographic restructuring of the Federation and constitutional amendments
The Constitution did not grant territorial inviolability to the constituent States.
Parliament can exercise a special legislative power to alter the boundary of all
or any States (Article 3). A limited due process requires Union government to
consult the States whose geography is being re-drawn. But various Supreme
Court decisions have denied rigour to consultation. But, although this power of
the Union is seemingly over-broad and arbitrary, its exercise is disciplined by
political forces. Indias original conception of defining a federation in historical
terms (along British lines) suffered a severe shock when a Gandhian activist
from Andhra Pradesh fasted to death to demand the creation of the linguistic
state of Andhra for Telugu speaking persons. The Report of the States
Reorganization Commission, which acceded to this demand, was implemented
in 1956 re-conceptualized the federation along linguistic and cultural lines16.
Andhra was created for the Telugu speaking people, Madras for the Tamil
people and Kerala for the Malayalee speakers. A new principle was born. In
1960, the State of Bombay was split into the Gujarat speaking State of Gujarat
and the Marathi speaking State of Maharashtra. In 1966, the State of Punjab was
broken into the Punjabi speaking State of Punjab, the Hindi speaking State of
10

Haryana and the State of Himachal for the Himachali peoples. Nagaland was
created for the Nagas in 1962. In 1971, the North Eastern States were
reorganized to create Manipur, Meghalaya, Tripura, Mizoram and Arunachal
Pradesh along cultural and linguistic lines. In 1975, Sikkim acceded to the
Indian Union to become a State within the Union. In 1987, Goa, which had been
taken over from the Porttugese in 1960, later became a full fledged State. In
2000, the State of Uttar Pradesh was altered to create the hills people State of
Uttaranchal. In the same year, the new tribal State of Chattisgarh was carved out
of the State of Madhya Pradesh and the State of Jharkhand out of the State of
Bihar. At the end of what seems an on-going process, India now has 28 states
and 7 Union Territories of different shapes and sizes. Within these states as
shown earlier - various intermediate structures have been devised to respond to
regional, ethnic and tribal claims by the Gorkhas, Bodos, Jharkhand tribals and
Ladakhis.
It is no longer necessary to enter into a somewhat arid controversy as to whether
India is a truly a federal state if the federal Constitution cannot guarantee
territorial integrity to each of its States. There is no doubt that the various states
remain vulnerable in this regard. India has come to accept that, given its
diversity, the federation must, and will change even its geographic contours.
Indian federalisms changing needs seek to simultaneously maintain the
integrity of the Union, whilst giving due expression to the cultural aspirations of
Indias peoples. This is Indias modified version of the doctrine of self
determination. Taken to its limits, the map of the world could be re-drawn many
times over to break up any country. But, India has tried to meet demands for self
governance within the federal principle. If it had stuck to the principle of the
territorial inviolability of its units as they stood in 1950, it would have run the
risk of agitational breakdown. Instead, the wide ranging Article 3 of the
Constitution gave the Union legislature the power to re-structure and re-organize
the federation. Fears that a Union based on linguistic or cultural affinity would
threaten the Union have proved to be wrong. The geography of the Indian
federation has been creatively re-written. In the process the federal principle has
been strengthened.
Constitutional amendments and the federal structure
Many of the territorial and other changes in the federal structure were made
without reference to the special power to amend the Constitution (Article 368).
The amending power of the Constitution has been structured so that (a) some
amendments to the Constitution can be made by a simple majority (b) some
11

changes can be made by a two third vote (and absolute majority of those voting
in both houses of parliament) and (c) some changes can be made by the twothirds absolute majority process plus a ratification by one half of the legislatures
of the States. The third process is usually invoked where the interests of the
States are directly involved. Where the party in power in the Union has
majorities in the States, this ratification process has not been unsurmountable.
In any event, the Supreme Court has opined that it is not necessary to even
complete the ratification process if one half of the legislatures have ratified a
proposal in order to make an amendment valid. This decision undermines the
federal principle which is traded in for practical considerations. Ostensibly, the
biggest restraint on the power of amendment came when the Supreme Court in
the Fundamental Rights case (1973) declared that the basic structure of the
Constitution cannot be amended out of existence17. In the Bommai decision
(1994),18 it was firmly established that federalism was part of the basic
structure of the Constitution. But, apart from being used to interpret the
emergency and other powers of the Union, this doctrine has not stood in the way
of the Constitution creating new States or even re-distributing the allocation of
powers between the Union and the States. The declaration that federalism is
part of the basic structure of the Constitution is more of a motif than an
operating principle. Perhaps, it is kept in reserve when intolerable invasions seek
to destroy Indian federalism altogether.
Between June 1951 and January 2004, a total of 92 amendments to the
Constitution have been made. Out of these, 37 (40.22 percent) related to
federalism. The federal amendments cover a wide range of aspects of varying
significance to union-state relations. The largest number of federal amendments
(35.14%) concerned the reorganization of states. Indias Constituent Assembly
left the process of amending the constitution for the purpose of the
reorganization of states without any strong federal entrenchment. If the power of
amendment for this purpose had not been left to the Parliament, and had been
subject to the consent of the states, perhaps the question of territorial
reorganization would have remained frozen. The States that stood to lose
territories would never have consented to their loss of territory. The next largest
category of federal amendments numbering eight (21.62%) related to
proclamation of Presidents rule, the addition of the state of Delhi to the
Presidential electoral college and the Punjab amendments to keep the state under
the Unions control during the insurgency of the 1980s19.
Most amendments including those introducing the constitutionally ordained
three tier local government - have been practically negotiated without bitter
12

contestation. However, these extensive amendments have also resulted in a

general and unqualified acceptance of using the power to amend the constitution
as a legitimate method of rewriting the script of Indian federalism.
The post-1992 multi-tier federalism,
In 1992-93, the constitution was amended so as to create an apparatus of three
tier local governments to hierarchically operate below the state level. While it
is arguable that this initiative amounts to no more than a devolution of power
rather than creating a new kind of multi-tiered federalism, it seems to us more
the latter with some of the elements of the former. There can be no doubt that
these provisions are entrenched and can be changed only by a constitutional
amendment. These require Union and State legislations to ensure local
government structures as mandatory constitutional requirements for all parts of
India. These amendments stand uniquely in a class of their own to seek to secure
peoples empowerment at local levels as a matter of constitutional entitlement20.
As a result of these amendments, the Constitution has now enacted a multitiered federalism for India. The States were given one year to enact enabling
legislation so that all existing legislation was brought in line with the new
constitutional mandate failing which the constitutional provisions would
prevail. Elections to the panchayat are based on universal franchise. But, a
unique feature of the amendments was to secure representation of the backward
classes of untouchables, tribals and others, and, in particular, ensure that onethird of all seats went to women (especially from the backward classes) who in
turn would also head these local bodies by rotation. This experiment has worked
well and added to the empowerment of women to enrich democracy. What the
amendments have done is to delineate 29 subjects for the panchayats and 18
subjects for the municipalities (in the Eleventh Schedule) in respect of which
enabling legislation would devolve power and responsibilities on these bodies
including a limited power to impose taxes. So far, these panchayats have worked
well and demonstrate the empowerment of women and the disadvantaged - even
though these local bodies do not always have the commensurate powers and
funds to operate as effectively as they should.
The 73rd and 74th Constitutional Amendments of 1992-3 were not applicable to
the Scheduled tribal Areas which as pointed out earlier - have been
constitutionally designated for special protection. On December 12, 1996, the
Union Parliament enacted a statute extending the new panchayat provisions to
the Scheduled Areas. These provisions go a step further than the provisions for
13

non-tribal panchayats. A important provision in this Act is that every village

shall have a Gram Sabha (village assembly) assigned with the powers to approve
the programmes and projects for social and economic developments, identify the
beneficiaries of such programmes and prevent the alienation of tribal lands. The
statute of 1996 lists 15 autonomous areas of empowerment of the village
assemblies where even the legislature of the state shall not make a law. Thus,
village assemblies at grass root level in these special areas have a direct
empowerment which cannot be touched even by state legislation!
Within less than a decade since the adoption of these local government
amendments, all state legislatures have passed enabling legislation. The
Eleventh Union Finance Commission Report for the first time devoted a full
chapter to finances of the local bodies. The Commission recommended that an
amount of Rs.1,600 crores and Rs.400 crores be allocated to panchayats and
municipalities, respectively, on an annual basis for the next five years (20002005) - to be shared among the states on the criteria of population (populous
states getting 40 percent weightage), index of decentralization (20 percent),
distance from highest per capita income (poorer states 20 percent), revenue
effort (incentive for revenue sharing- 10 percent), and geographical size (the
bigger states getting 10 percent weightage)21. Most State governments have also
appointed State Finance Commissioners to periodically study and recommend
fiscal transfers from the State governments to the local bodies.
The National Commission for the Review of the Working of the Constitution
(NCRWC) Report (2002)22 recommended that the panchayats should be
categorically declared to be institutions of self-government and exclusive
functions should be assigned to them even if this requires a further amendment
of the Constitution. The Commission recommended major fiscal restructuring to
enable the panchayats to function as viable local government institutions.
Further, the Commission also suggested that all local authorities be allowed to
borrow from their state government and financial institutions. One new proposal
that is now mooted by the Congress-led coalition, which came into power in
June 2004, is to create a new ministry of Panchayati Raj (local government
rule). Earlier this department was in the Ministry of Rural Development.
A great deal can be written about Indias experiments entrenching local
government (with all its diverse complexities) as part of the constitutional
mandate. For our purposes, it is necessary to recognize that these new bodies
exercise executive and legislative power under conditions of accountability to

14

people at grass root level especially in tribal areas where such control is all the
more necessary.
Political pressures and their discontents
Constitutional changes are born out of the political circumstances that create
them. No sooner did the Constitution come into effect on 26 January 1950, it
was inevitable that the federal system would be changed. In 1950, Indias
federal system consisted of an untidy segregated mix of the Provinces under
British Rule, the territories ruled by the Indian Princes and the other territories
administered by the British. Such a structure had to be re-worked. But, and on
what basis was this to be done? Prime Minister Nehru did not want India to be
broken into linguistic states because he feared that this would break up India
itself. However, as soon as it was accepted that this could be done, the reorganization of Indian States followed the recommendations of the Report of the
States Reorganization Commission (1955) to create a new basis for Indian
federalism. But, if one round of geographical re-structuring was on the basis of
linguistic identity (that is separate States for the Gujarati, Marathi, Punjabi and
Hindi Speaking peoples), another round concerned itself with regional and
cultural affinities to create, as for example, the new States of Uttaranchal,
Jharkhand and Chattisgarh. When India took over Goa from the Portugese in
1960, its identity could have been merged with that of the State of Bombay. But,
while retaining links with Bombay, it was first a distinct Union territory; and
later full fledged State. Likewise, the separate identity of the French speaking
Pondichery has been preserved as a Union territory as indeed, the various
Islands in the Bay of Bengal and the Arabian sea. In the tribal areas of Bengal
and Assam, autonomous governance structures have been created. In most of
these cases, it is political demands that have formed the basis of Indian
federalism. Old and new demands will continue to portend changes in the future.
All federations house both the politics of aspiration as well as the politics of
suspicion. During the Nehru years, there was a subdued scope for the politics of
suspicion because virtually all governments at the Union and State levels were
run by the Congress Party. However, when the Communist led coalition won an
electoral victory in the State of Kerala in 1957, the politics of suspicion
deepened. For entirely dubious reasons, the Union imposed emergency rule to
get rid of elected Communist government (possibly the first of its type) in 1959.
Suddenly, Indian federalism became fragile in the hands of Indian politics
including, perforce, Nehru who was otherwise less distrusted than either his
contemporaries or successors. From 1967, when more and more State
15

governments returned non-Congress ministries into power, Indian federalism

was taken for a ride by Mrs. Gandhi through an unjudicious use of State
Governors appointed by the Union and the power to impose State emergencies
on unfounded premises that there had been a breakdown of constitutional
governance in that State. This continued for several years until the National
Emergency of 1975-77 after which Mrs. Gandhi was voted out of power. But,
ironically, it was the ill fated Janata government (1977-79) which removed 9
state governments, with the consent of the Supreme Court, because it was
argued that parties in power in those States had lost their mandate to rule
because they failed to win the Union elections! On her return, Mrs. Gandhi also
dismissed 9 State governments on the same ground. The abuse of these
provisions have continued but on a lesser scale23. The politics of suspicion has
not been removed. Union government in power use all kinds of fair and foul
means to subdue or get rid of State governments. While, Indian federal politics
is a lot more stable than it was, earlier suspicions and present fears continue.
In time, the States increased their demands for a politically safer and
constitutionally more equitable federalism. In 1967 a left led coalition
submitted a Memorandum to the National Development Council for a review
of union-state relations. Mrs. Gandhis government had to be seen to respond
Indias now troubled federalism. A number of federal issues were included in
the sprawling remit of the Administrative Reforms Commission (1966-69) with
no tangible results. In 1971, the Justice Rajmannar Report from the State of
Tamil Nadu demanded safeguards from the abuse of federal powers as well as a
reworking of the division of legislative powers including granting the states
right over the residuary executive and legislative powers reposed in the Union
and the reworking of distributive aspects of financial federation. In 1971-2, Mrs.
Gandhi appointed a Committee of Governors which reviewed various aspects of
the working of political federalism including the powers of the Governors. But,
no significant recommendations were made by the Committee other than point
the need to observe the best practices with integrity. After the Emergency
(1975-77), the Communist led government of West Bengal submitted a 29 point
memorandum seeking a removal of the Unions emergency powers, disciplining
the power of the Governor to dismiss State governments and several matters
relating to financial federalism. As if to make a symbolic point, the West Bengal
Memorandum also wanted the phrase Union in the Constitution to be replaced
by Federation! In 1978, Sikh Akali Dal party revised its Anandpur Saheb
Resolution to claim more autonomy for the States. In the 1980s, a series of
meetings were held by non-Congress State Chief Ministers to formulate fresh
demands for an equitable and responsible federalism. On 15 December 1987,
16

the non-Congress Chief Ministers met in Calcutta to protest the terms of the
Ninth Finance Commission under Article 280 of the Constitution for the
distribution of revenues and prepare alternative terms of reference. The response
of the Congress was to appoint a powerful and wide ranging commission to
inquire into Center-State relations in 1983. The Sarkaria Commission Report
on Centre-State Relations was published in 1988. It is the locus classicus on this
controversial subject -both in terms of the data and opinions gathered as well as
its detailed prescriptions. The Sarkaria Commission has remained an important
document which has not only been relied upon by the High Courts and Supreme
Court as the source of advice but has also been the basis of demands by the
States despite the Report being centrist in its approach while maintaining a
disciplinary oversight over the working of Indian federalism. Since the Sarkaria
Commission, a stream of unattended demands have been made for changes in
the federal structure. Meanwhile, in 1992, amendments to the Constitution
created a constitutionally entrenched three-tier local governments system which
was later extended to the tribal areas in 1996. The advent of coalition and
minority governments at the Union from 1989 have made the Union less hostile
and more conciliatory to the State governments in whose hands the future of the
ruling party at the Union often depends. This could not have been more
dramatically illustrated than by the 1994 crisis in which Prime Minister
Narsimha Rao was implicated in a bribing scandal to secure a no-confidence
vote for the Congress led minority government. While Rao was later exculpated
from criminal charges, coalition partners have often held Union governments to
ransom through subterfuges akin to blackmail.
But, the Union has also been under strain because of internal and external
challenges by various kinds of demands for autonomy and secession. Since
1947, the dispute between India and Pakistan and Kashmir has continued under
conditions of terrorism. From the late seventies, the Sikhs demanded that Punjab
be permitted to breakaway as an independent State of Khalistan. This demand,
which led Mrs. Gandhi to ordering the storming of the Golden Temple in
Amritsar, resulted in her assassination by her Sikh body guards in Delhi in 1984.
Riots and the massacre of the Sikhs followed. The governance of Punjab was
taken over for an extended imposition of emergency rule from 1987 to 1992
for which the Constitution had to amended. Meanwhile, in the North East, there
have been several movements for autonomy and secession which have acquired
terrorist dimensions. This has led to many accords between the Union and
these various movements such as the Assam accord of 1985, the creation of
various North Eastern States and various autonomous councils within States.
All these events have reinforced justification of strong interventions by the army
17

and para-military forces in the terrorist regions. Huge powers have been
granted to the military which have been upheld by the Supreme Court as both
necessary and proper. Even in such conditions of turmoil, both activists and
Indias statutory National Human Rights Commission have insisted that these
military interventions must accord to international human rights and
humanitarian law norms.
We are left with an untidy picture. But, it is not without promise. Indian
federalism began with the overtly centrist approach of planned development.
Parliament enacted a large number of laws to take over the economy and create
and implement a programme of social economic change within the conspectus
of a highly regulated system. As corruption caught up with this elaborate system
of control, it suffered a loss of confidence to be further undermined in the 1990s
by the pressures of globalization to liberalise and disinvest the government
controlled system. Successive governments in both the Union and the States
have both held on to the potential military machines as well as the apparatus of
State instrumentalism even while relaxing their hold on the movement of goods
and capital. As against such centrism, the imagined community of the Union of
India and the idea of India have yielded to cultural demands for autonomy
within the federation. Often the concession to social and cultural demands is a
trade off to buy federal peace. Political and social movements have successfully
altered the dynamic within Indian federalism while leaving its overall basic
structure intact. More significantly the political discourse on federalism has
altered to reorganize old and new demands.
III.

Executive control by the Union

Presidents and governors

India has adopted the parliamentary system of governance with the President
and the Governors as the respective executive heads of state for the Union and
States respectively and Lieutenant Governors and Chief Administrators for the
Union Territories. All executive power is exercised in the name of the President
or the Governor on the basis of complicated rules for the allocation and
transaction of the governments business. The President and Governors were
intended to be formal heads of State regal in style, ceremonial in their manner
and comforting voices in the service of the people24.

18

Since the President was designated as the head of the federation, he was elected
through a complicated electoral college consisting of the two houses of the
Union Parliament and the Legislative Assemblies (lower house) of the State
legislatures. Union Territories without legislative assemblies have a lesser say in
the election of the President. However, Union Territories are represented in the
electoral college by their Members of Parliament (MPs). The principle
underlying the construction of the electoral college for the Presidential elections
is .. the purpose of securing such uniformity between the States inter se as
well as parity between the States as a whole and the Union (Article 55(2)). In
one sense, this is a method of double counting in that eventually the people of a
State are represented twice over through their Union MPs and State MLAs
twice over. But this double benefit does not inhere in all Union Territories. The
Constitutions formula in assigning votes to MPs and MLAs is to give each of
them that many representative votes as the total number of seats of their
respective houses divided by the total electorate of the State. The smaller the
size of the house and the greater the population of the State, the greater the
denominational value of the vote. No doubt the larger States dominate. But,
ultimately, virtually all votes are controlled by political parties to the virtual
exclusion of the people or their representatives.
From 1950 to 1967, the President was a Congress nominee since the party was
solidly entrenched in power at both the Union and State levels. By the 1969
elections, the Congress party itself was split, resulting in Mrs. Gandhis
Congress nominating a party candidate but supporting the independent
candidate, V.V. Giri, who, with this support, won the election. Thereafter, most
Congress candidates won the election for the next few decades. But, from the
1989 when Congresss power in the Union and the State waned, such elections
have been contested. But, since votes of the various party political incumbents
of the electoral college and the respective weights attached to each vote is
known, in recent years the contest is worked through by negotiation. Thus, in the
2001 Presidential Election, there was an agreement to support President Kalam
who though Muslim seemed agreeable to both the fundamentalist Hindu parties
as well as the Congress. The left fielded its own unsuccessful candidate. In
future, as the politics of the Union and the States splinters, the consensus
approach to electing Presidents may give way to contested elections through
keenly divided electoral colleges.
Since 1950 the institution of the Governor has run into considerable controversy.
Given the experience of British Governors before 1947, the Constituent
Assembly that framed Indias Constitution initially opted for directly elected
19

governors. But, the seasoned politicians in the Constituent Assembly were wary
that elected governors directly drawing legitimacy from the people might
challenge the very basis of parliamentary governance. Eventually, the
Constitution opted for the appointment of Governors by the President who, in
these matters as virtually everything else, would follow the advice of his
Cabinet. Under the formula devised by the Constitution, the Governors would be
appointed for a period of 5 years but at the same time hold office during the
pleasure of the President. In political practice, the 5 year term became
meaningless. Governors are appointed for political reasons and sacked at will
without compunction. The Constitution prescribes no method for the removal of
Governors. With no ground rules for either the appointment or removal of
Governors and the influx of political appointments, the office of the Governor
has run into acute political controversy.
Governors have become pivotal in the mismanagement of Indian federalism.
Originally, the Governor was seen as a kind of ceremonial post presiding over
the periodic march past of successive elected governments. But, in time, new
trends emerged as a result of the parties vying for power in the States which
were different from the ruling Congress in the Centre. In 1957, the State of
Kerala returned a Communist led government into power. Instead, of allowing
the government
to breathe, Nehrus government removed the Kerala
Communists from power by invoking Unions power to impose Presidents Rule
on the spurious grounds that the State government was not able to control the
disorder created by Congress cadres in Kerala. After that - over the years Presidents Rule was imposed mercilessly by the Union over many States
principally on the advice of the Governor. Governors thus acquired a political
use which enlarged in other areas of the Governors empowerment. After 1967,
various non-Congress coalitions were returned to the State legislatures by the
electorate. Congress appointed Governors used every trick in the book to ensure
that other political parties did not come to power. Assemblies were prorogued,
and status quo preserved until a Congress ministry was sworn in. And, if that
was not possible, Presidents Rule was imposed and the State was run by the
Union government through its Governors. Governors also had the power to
refuse to sign bills passed by State legislatures and reserve them for the
Presidents approval. In one instance of 1969, a bill passed by West Bengal did
not get Union approval for 13 years! While all this will be discussed later, this
goes to show that gubernatorial power was being mal-exercised to create
political and constitutional chaos in the Federation. This excited allegations as to
whether the Governor was to borrow a phrase a sage or a saboteur ? The
institution of the Governor has failed to inspire confidence. Allegations about
20

the Unions hold on the office of the Governor continue. In 2004, when the new
Congress led government sought to remove the politically motivated
appointments of its predecessor BJP led government, the BJP threatened to
agitate by bringing parliamentary proceedings to a standstill. While this was a
case of the pot calling the kettle black, it raised the issue that India needs to
review how the institution of the Governor works.
The controversies about the Governor have been examined by various
committees and Commissions. The Administrative Reforms Committee (196669) had read the warning signals. In 1971, the (Bhagwan Sahay) Report of the
Committee of Governors25 took exception to the political appointments of
Governors and the abuse of powers by then - but made few concrete
suggestions about their appointment and removal by reposing their faith in the
principle that good people would generally give good results. State demands for
neutral and fair Governors continued alongside the political abuse of powers by
Governors. The Sarkaria Commission on Centre-State Relations (1988)
recommended that the Constitution be formally amended to mandate
consultation with the State Government for the appointment of the Governor. It
was indicated that removal of a Governor should be for cause after giving
reasons and requiring a statement to be made before the Union legislature. The
Constitution Commission of 2002 suggested a political collegium for the
appointment of Governors, a fixed term of 5 years, appointments on the basis of
neutral criteria and removal only by impeachment. None of these suggestions
have been accepted. Meanwhile, the appointment of political Governors
continues - especially by the BJP whose Governors have been accused of
supporting and advancing Hindu agendas contrary to the secular neutrality of
the Indian state.
The Executive Power
The executive power of the Union and the States vests in the name of the
President and the Governor. All the business of the executive is done under the
allocation of business rules which indicate which Ministry should exercise what
power; and the transaction of business rules which lay down the limits to which
particular powers are exercised by officers of a particular level. But, the
President and Governors are aided and advised by their respective Council of
Ministers. The extent of the Unions executive power extends to all matters over
which the Union has the power to legislate whilst the States executive power
extends to matters over which the State can legislate. Both the President and the

21

Governor have the right to be briefed by their cabinet and to summon files for
their perusal26.
Traditionally, the power of the President (and, perforce, Governors) are to be
exercised on the advice of their Cabinet except in those areas (such as selecting
their Prime or Chief Minister; or, in the case, of Governors exercising the power
to recommend Presidents Rule or reserving Bills for the consideration of the
President) where they have a discretion. After the Emergency (1975-77), an
amendment of the Constitution in 1978 gave the Union President the power to
refer back Cabinet proposals on a once only basis. This was necessitated
because it was felt that the, then, President had been docile in accepting the
national Emergency in 1975 and in assenting to legislation without even a moral
murmur in protest. The President acts for both the Constitution and the
federation that elected him. In 1979, (1987), President Zail Singh threatened to
use the refer back power over the Postal Bill which he thought was inimical to
civil liberties. In 1997, President Narayan referred back the question of the
imposition of Presidents Rule over Bihar, but demurred in a similar situation
months later by taking the responsible view that the refer back power was not
to frustrate the Constitution but to act as its conscience. In 2003, President
Kalam asked questions from his cabinet about the Voters Right to Know Bill
which was subsequently passed by Parliament, but struck down by the Supreme
Court to vindicate the Presidents discomfiture. No doubt, the President has a
right to be informed and give advice, but he cannot make a practice of it in ways
that take over executive governance.
Even though most parliamentary systems use the language that the Cabinet aids
and advises the President, Queen or Governor, the working principle is that
these executive heads are bound by their Cabinets advice. In the 1950s,
President Rajendra Prashad claimed wider powers over the Hindu Code Bill
over the protest of Prime Minister Nehru. In the 1980s, President Zail Singh
adopted a similar posture towards Rajiv Gandhi demanding his constitutional
right to be kept informed. This entire controversy was put to rest by the Supreme
Court in 1973 which confirmed that the parliamentary system required the
President to be bound by the advice of the Cabinet except in those areas where a
discretion was intended. Controversies continue over the Governors selection of
Chief Ministers or his right to dissolve or refuse to dissolve the house or even
sack his Chief Minister. But, it is now settled that Indias parliamentary system
operates broadly on Westminster lines subject to some Indian variations to meet
the wide ranging exigencies which confront Indian governance. The Presidents

22

political discretions remain as indeed the special privilege to be informed

underlined by the Constitution itself.
It is now generally accepted that the parliamentary system is no longer a genuine
collegiate system but has now been transformed into a Prime Ministerial system
in which the latter is all powerful. Prime Ministers can appoint who they like to
their cabinet, allocate responsibilities to whom they like and remove whom ever
they want when ever they want. But, even this insight yields to ground realities.
Since India is a federation, care has to be taken that the Cabinet is composed of
persons from all areas. The general objective of regional representation is
enhanced where crisis situations demand representation from particular states.
This is especially true in accommodating representation from the North East,
Kashmir or the South. This may not always be possible even after taking into
account the practice of constituting jumbo Cabinets with large number of
Cabinet Ministers and Ministers of state. Even so, the principle of regional
representation has generally been treated as a governing principle for ministerial
appointments in addition to the criteria of political status, ability and suitability
which are often eclipsed.
The advent of coalition governments minority government at the Union from
1977 have strengthened the demands of regional parties to representation in the
Union cabinet as a matter of right rather than political largesse27. Political
leaders from the States, who are also members of the coalitions in the Union,
have insisted that certain important portfolios should come to them depending
on the strength of their party in their coalition and their capacity to rupture the
coalition or destroy it. This has led to some degree of blackmail as parties seek
to get what they want. Generally, the post of the Prime Minister goes to the lead
party which also seeks to claim the Home and Finance Ministries and the
Foreign office. Sometimes they do not succeed in this regard. In one instance, a
political leader from Tamil Nadu insisted on the law portfolio to enable a goslow over her prosecutions for corruption! Even where they do not get a
portfolio in the Union Cabinet, some coalition members insist that the power of
the Union be used to embarrass the State government in which that coalition
member at the Union is not in power at the state. All this led to a significant
change in the manner and extent to which the informal principle of regional
representation can be adhered to. Coalition rule has meant that greater credence
is given to party political representation than regional representation even
though in many instances both purposes may be simultaneously served. But, the
principle of regional representation has lost its priority to party political

23

representation. Surviving the coalition acquires an edge over representing the

federation.
Since regional representation and its discontents depend very greatly on the
permissible size of a Cabinet, some recent developments in this regard must be
noted. Hitherto, due to political pressures the size of Union and State Cabinets
grew exponentially. In certain States, the Cabinet consisted of a third or even
half of the strength of the Assembly. The costs of administration increased
dramatically as each minister claimed the pomp of office. In 2004 a
constitutional amendment mandated that a Cabinet could consist of no more
than 15% of the strength of the Lower House of Parliament or the Assembly in
question. An exception was made for small legislatures to the effect that council
of ministers including the chief minister in those states shall not be less than
twelve28. This will also curb the extent of regional or any other kind of
accommodative religious, linguistic, or cultural representation in the Cabinets.
The tussle of political and regional representation will continue. But the Union
Parliaments constitutional amendment has altered the politics of states even to
the extent of collapsing a coalition government in Arunachal Pradesh in 2004.
The executive power is co-extensive with the legislative power. But, in the well
known Punjab Text Book case (1955)29, the Supreme Court made it clear that
the Union and State executive power could be exercised even without enabling
legislation. No doubt, where the executive power transgresses a fundamental
right without the authority of law, it would be struck down as unconstitutional.
But, this decision confirmed the vast width of the executive power without
reference to legislation. It is under the executive power, that Indias Planning
Commission (which is a non-statutory body) was created. No less, the executive
power has been used to create fully or partly controlled companies and societies
through which a considerable part of executive governance is conducted. Such
OGOs (Official Governmental Organizations) have spread across the canvass
of governance to cover many public sector undertakings, pivotal educational and
research as well as social welfare activities. Apart from institutions directly
created by Union legislation organizations created through the executive power
are created under the Companies Act, the Societies Registration Act 1860 and or
some simply by executive fiat. This has been done at both Union and State
levels. But, where the Union has created such organizations they override the
one created by the States. Such organizations have resulted in the Union
governing the States through these organizations in many matters relating to
food, education, business, welfare and so on. Thus, to take a recent example,
from 1998-2002 a Union created educational agency changed all the text books
for high school students through out India. The States need not have prescribed
24

these texts in their schools, but were, in fact, forced to do so because of the
structure of the all India courses and exams. The Supreme Court blessed this
decision on the grounds that celebrating Indias past (including the Hindu past)
was also a celebration of national integration30. When the Congress led coalition
came in power at the Union, they ordered a change of text works on a more
secular basis. In all this, the wider question of the civil rights, governance and
the financial implications of decisions about OGOs has not fully examined.
Equally, the width of the use of the Unions executive power and its
implications for both the rule of law and federalism need further elucidation.
More generally, the executive power of the States has to be exercised to ensure
compliance with the laws of parliament and empowers the Union to give
directions to the State as may be necessary especially in respect of
communications and waterways and the protection of railways. This is apart
from the co-operative provisions whereby the Union and States can entrust their
executive power to each other usually with each others consent. From 1976,
the Union also has the legislative (and, therefore, executive power) to deploy its
armed or other forces in any State subject to the control of the Union. These
power have been exercised in various States and, with some permanence in
states witnessing or threatened by upheaval. This is a form of military
intervention which is usually backed up by special Union legislation for certain
areas or by creating para-military forces under the Unions control. These are
draconian powers of intervention. No serious federal controversies have been
raised in respect of their exercise. Counter terrorism is answered by terrorism
while viewing the counter terrorism as state terrorism !
The executive power of the Union and the States has an enormous expanse both
in terms of implementing legislation as well as a self standing power. It has been
extensively used to create a range of powerful institutions and enable extensive
interventions by the Union over the States. There is a need to reconsider or, at
least, discipline - its width.
Emergency Powers
The Union possesses wide ranging powers to impose national, state and
financial emergencies on the whole of India, or on any part of India or on any
state. In 1962 a national state of emergency was declared whereby civil liberties
were suspended. From 1975-77, an internal emergency was declared which
virtually converted India into an autocratic state under conditions of censorship
and arbitrary detentions. The effect of the declaration of an Emergency is to
empower the Union to suspend civil liberties and give executive directions to
and legislate for the States In 1979, these draconian provisions were somewhat
25

modified so that a general internal emergency could only be imposed if there

was an external aggression or armed rebellion. The suspension of civil liberties
were restricted so as to keep alive fundamental freedoms and enable continuing
access to courts31. The provisions for a financial emergency have never been
invoked. The invocation of emergencies require ratification by parliament which
given government majorities has not proved to be controlling restraint or
impediment except recently because the Opposition in the Lok Sabha. But,
hopefully India has learnt its lesson and future emergencies will only be invoked
as a last resort under genuine conditions of extreme necessity.
However, the Emergency power which has continually troubled State
Governments is the Unions power to impose Presidents Rule and take over the
governance of a state on the basis that a situation has arisen that the
government of the State cannot be carried out in accordance with the
Constitution. Such emergencies have been declared on over 90 occasions; and,
threatened on many others. When such an emergency is declared, parliamentary
governance in the State is taken over completely. The President rules the State
through the Governor. The Union legislature legislates for the States. In most
cases, the government of the State is dissolved and fresh elections are ordered.
In other cases, the State government is kept in suspended animation. During
Nehrus tenure as Prime Minister, Presidents Rule was used on 6 occasions
without any justification in Kerala in 1959. During the first reign of Mrs. Gandhi
Presidents Rule was imposed on 50 or more occassions. In most cases, this was
totally without justification as the purpose of the Presidents Rule was to remove
an opposition government from assuming office or to permit a Congress
government to take over power in that state. In at least one instance, Presidents
Rule lasted in Nagaland for 2 years and 8 months. In some cases, the Union
imposed emergency rule because the Union thought the state government was
corrupt or could not cope with a breakdown of law and order. Oddly, when the
Janata Government came into power after Mrs. Gandhi lost the post-Emergency
election, it imposed Presidents Rule in 9 governments where the Congress was
in power. Surprisingly, in the Dissolution case (1977), the Supreme Court
condoned this mass use of the power to impose Presidents Rule in more than
half of India! When Mrs.Gandhi returned to power in 1980, she returned this
compliment by removing 9 non-Congress governments from power. In the
meanwhile, in 1978, the Constitution was amended so that the imposition of
Presidents Rule could not exceed more than one year. But, even this rule was
breached by further constitutional amendments to extend Presidents Rule in the
strife driven State of Punjab for five years to place democratic governance in
that State in abeyance32.
26

As soon as Presidents Rule is imposed on a state, the democratic governance of

that state disappears. Even though, the President and Union Parliament take
over the constitutional governance of the State, the federation suffers because
India is converted into a unitary federation in so far as that State is concerned.
The continued abuse of Presidents Rule took place because the courts had
refused to intervene in respect of these abuses. In 1994, in the celebrated
Bommai case, the Supreme Court declared that such impositions were
justiciable, interfered in one case and following Pakistani even retained the
power to restore a government or legislature which has been ignominiously
removed by an abuse of the Presidents Rule provisions. Although the Bommai
case made clear that an abuse of the Presidents Rule provision was an affront to
federalism which was part of the basic structure of the Constitution, this has not
prevented prevent further impositions of Presidents Rule. In one instance, the
President returned a request for imposing Presidents Rule by his Cabinet. But,
by and large, although the threat of imposing Presidents Rule hangs like a
Damocless sword over self governance by the State, its use has diminished
even if the threat of its use has not been eliminated.
Since 1959, the abuse of the Presidents Rule provisions has been the subject of
controversy. The Governors Committee of 1971 pleaded for restraint. The
Sarkaria Commission on Centre State Relations pronounced that in a large
number of cases, there was no justification for Presidents Rule and it
recommended a disciplined use of Presidents Rule provisions. The Constitution
Commission of 2002 broadly echoed what the Sarkaria Commission said. But,
in our view the Presidents Rule provisions serve no useful purpose. If
constitutional governance at the Union is possible without such provisions, this
should be equally possible for constitutional governance by the States. If any
part of India is seriously threatened, the general Emergency provisions can be
invoked for that part of India without mal-affecting the democratic
parliamentary governance of the State. The Presidents Rule provisions should
be abolished and excised from the Constitution.
Emergency powers are a thorn in the sides of good governance. When reposed
in the Union they collapse democratic governance. Their use should be limited.
Provisions permitting the use of emergency powers should be minimally
confined within narrow parameters.

27

The Treaty Making power

Over the years, the Unions treaty making power has acquired increasing
significance33. The Constitution gives the Union extensive powers to enter into
treaties, negotiations and attend meetings and conferences. But, the effect of this
on the federation is that the Union Parliament has power to make any law for
the whole or any part of the territory of India for implementing any treaty,
agreement or convention with any country or countries or any decision made at
any international conference, association or body. Since this power is prefaced
by a non-obstante clause which overrides the rest of the Constitution, this means
that the entire legislative lists including those provisions which give exclusive
powers to the States can be over-ridden by Parliament when seeking to
implement international obligations.
To some extent, it is inevitable that the Unions power to negotiate treaties
should not be inhibited by federal arrangements. But various factors have
pointed in the direction of seeking solutions to federalize the making of the
treaty making power. To begin with, it was thought that because India follows
the incorporation theory whereby a treaty is not automatically legally
enforceable within the municipal system there was no great danger to the federal
system. Legislation was needed to implement that treaty. It was felt that there
were enough parliamentary safeguards to prevent the treaty being legally
enforceable in India. At the same time, Indian law also recognized that even a
treaty which is not incorporated into Indian law by legislation has some
interpretative significance if it was not contrary to any existing enacted Indian
law. Under these circumstances, it was felt that even if implementing the treaty
making power collapsed Indian federalism, this did not seriously undermine the
federal system because the two houses of Parliament which consisted of
representatives from the States would sufficiently safeguard the interest of the
States.
But two important developments have taken place. In a series of decisions
culminating in the CEDAW decision of 199734, the Supreme Court has held that
certain kind of humanitarian or rights enhancing treaties were really part of
Indian law and would be treated as directly enforceable as part of Indias human
rights regime with the Supreme Court itself giving directions on sexual
harassment until Parliament legislated on the subject.
The limits and the extent of the direct applicability of international treaties into
Indian law were not exactly spelled out. The second important development that
28

occassions a reexamination of the treaty making power is the emergence of

powerful multi-lateral treaties that are internationally self enforcing without
recourse to Indian law. In particular, attention is drawn to the WTO treaty which
depends on its own dispute settlement mechanisms to secure enforcement. The
new WTO treaty is clearly a magnum treaty. It was no longer concerned with
the movement of goods, customs and tariffs. It extends to practically everything
including the movement of services, investments, agriculture and health through
patent protection. No doubt, eventually the treaty would seek enforcement
through domestic legislation. But once the treaty was signed, there was really no
stopping its implementation. This became self evident when the dispute
settlement machinery under the WTO was invoked after Indias parliament
failed to make the requisite amendments to its patent law. As soon as the threat
of sanctions under the WTO emerged, India buckled under. The patent and other
intellectual property laws in question were amended and brought in line with
relevant WTO provisions. Some of the Indian States were enraged by their loss
of control on agriculture and health which the Constitution has placed under
their control. In particular, the State of Tamil Nadu followed by Orissa,
Rajasthan and Punjab filed original suits before the Supreme Court questioning
such a wide use of the treaty law. Most of these suits have been withdrawn but
the issue survives for consideration. The treaty making power, which was seen
as a harmless exercise of diplomatic negotiation, has become a matter for federal
concern.
As we embark further into the twenty first century, governance by treaty is upon
us. This is going to affect not just India but the rest of the world. India is already
knee deep in evolving a regional treaty with the South Asian nations a process
that began in 1987 and is gathering momentum. The Indian Constitution
contains no mechanism for the ratification of treaties. If self enforcing
multilateral or other treaties are going to govern us, both democracy and
federalism require the evolution of some kind of peoples and federal due
process to confront the power of treaty making. At the very outset, treaties
themselves should contain the obligation of peoples consultation as part of the
democratic process. Secondly, in a federation, some process of consultation and
approval needs to be devised to involve the states in the treaty making process
before it becomes a fait accompli. Thirdly, after a treaty has been negotiated, it
is necessary to create some kind of ratification procedure for particular, if not
all, classes of treaties which might involve the Union and, possibly, State
legislatures. Such an exercise needs to be thought through to further both
democracy and federalism.

29

The Administration
India inherited a powerful bureaucracy from the erstwhile British administration
which ruled India for decades. India decided to continue the powerful
centralized bureaucracy recommended by the administration of the British Raj.
What was called the ICS (India Civil Service) in pre-independent India became
the Indian Administrative Service (IAS) in post-independent India. Recruitment
to this, and other, all India services, (which include general administration, the
police and revenue officers), are recruited through a Union Public Service
Commission (UPSC) which is a powerful body set up by the Constitution itself.
Through the examination and selection processes a central bureaucracy is
created to govern India. It is these officers who are appointed to key posts in
the States and Union as they career towards the higher echelons of the various
Union and State Ministries35.
The Constitution has also created State Public Service Commissions (PSCs)
which recruit officers and public servants for the States. But these provincial
officers eventually hold lesser ranks and are generally under the control of the
officers of the Union appointed to the States. Even though, State civil servants
occupy lesser positions within their own state, they remain incharge locally and
in the ministries of their States with some chances of promotion to the Union
cadres. If administrations march on their underbelly, the State civil servants run
part of the show not without corruption and greasing of palms. With
increasing corruption in the polity, the influential Vohra Committee report36
suggested the administration at all levels is vulnerable to take over by local
influences fuelled by party politics.
The relationship of the centralized services to State governments is not
necessarily imbued with clarity. Bureaucrats drawn from all-Indian services are
under the control of the government they work for. But, even when such
officers are under the operational control of the State governments, they remain
within the Unions power of recall because it is the Union which is their ultimate
employer. While in office, all civil servants enjoy the protection of certain due
process and other rights to protect them from arbitrary treatment, dismissals or
reduction in rank so much so there is an elaborate system of administrative
tribunals at both State and Union levels to adjudicate the complaints of Indias
civil servants.

30

Eventually it is a powerful Union bureaucracy that is in a position to rule India

subject to their vulnerability to political control by the Union and the State
governments they serve. While there are ombudsman style agencies in various
States, no such system exists at the Union even through the Supreme Court has
mandated the creation of a Central Vigilance Commission. Indias powerful
bureaucracy, has prevented oversight of its performance.
In sum, so far as the executive power is concerned, we have tried to show how
the executive power of the Union and the States have been constructed within a
parliamentary system of government at both levels. The executive power is used
both to implement legislation and policy in a wide variety of ways including the
creation of institutions, societies and companies which occupy federal space to
limit the initiatives of the States. Overriding the division of powers are the
Emergency powers of the Union which have been used to belittle the federation
and virtually insult the democratic functioning of the constituent States. But,
politics has tried to discipline the use of these powers where the constitutional
text has proved to be permissive. New challenges have also arisen in respect of
the treaty making power which need to be responded to so that executive
relations between the Union and the State are located in a responsible
consultative democratic framework. A powerful bureaucracy runs all
governments but it is increasingly become vulnerable to political control and
corruption. There are a range of special powers reposed in the President and
Governor for special areas. Used well, they create innovative responses to meet
regional, linguistic and ethnic demands. Used badly, they disrupt good federal
governance. Where constitutional conventions have been ineffective, a
disciplining framework based on accountability and transparency may be
necessary to defend both democracy and federalism.
IV.

Distributing the Legislative Power

(a)

Creating a federal legislature

As a Union of States, the Indian Constitution devised a bi-cameral Parliament

for the Union and Legislative Assemblies in the States which could be either
single chamber or bi-cameral. The two houses of the Union Parliament consist
of the House of the People (Lok Sabha) which is directly elected through a
universal franchise and the Council of States (Rajya Sabha) which is mainly
elected from the legislatures of the States except for 12 MPs nominated by the
President in practice on the advice of the Prime Minister of the Union. While the
Union Government is accountable to both houses, the Council of Ministers is

31

collectively responsible to the House of the People which alone can remove it
from office.
This composition of the legislatures is mired in past history. The British
Government of India Act 1919 created a bi-cameral legislature with limited
powers in the form of a Council of States and a Legislative Assembly both of
which included members nominated by the Governor General, officials of the
government, those selected or elected as representatives of minority
communities and those from the general category. The Government of India Act
1935 reproduced this pattern, reposed more power in the legislature and gave
representation to Indias princes in the Council of States. But, this scheme of
the Act of 1935 never came into operation whilst the Assemblies of the various
British provinces functioned from 1937-9 but resigned as part of the strategy of
the freedom of movement. When the Indian Constitution was being composed,
Shri B.N. Rau, the Constitutional Advisor, circulated a questionnaire on 17
March 1947 asking if the Union legislature should have an upper house and
whether the composition of these legislatures should represent different
communities and interests. The Union Committee of the Constituent Assembly
opted for a bi-cameral legislature on 9 June 1947, suggested that the two houses
be called the House of the People and the Council of States and set up a subgroup to examine how the States should be represented in the Council of States.
The formula devised by this sub-group, and later the Committee, was not to give
equal representation to all States but calculate such representation in a manner
proportional to the population of the State to be expressed through indirect
election from the from the legislatures of the States37. When these proposals
arrived at the Constituent Assembly, grave doubt was expressed by one
prominent member as to whether the Council of States was required at all:
The most we can expect the second chamber to do is perhaps hold
dignified debates on important issues and to delay legislation which might
be the outcome of passions until the passions have subsided . (W)hat
we really achieve by the existence of this second chamber is only an
instrument by which we delay action which might be hastily conceived38.
But the Constituent Assembly approved a bi-cameral legislature with a Council
of States elected by the Legislative Assemblies with 12 nominated members.
But whom would the Lok Sabha and Rajya Sabha represent ? What would
happen to the religious, communal, caste and tribal representation in the
erstwhile system devised by the British ? Following the creation of Pakistan and
given Indias diversity, to provide group based representation in the
32

legislatures would be as impractical as it would be impossible. On 16 June 1949,

India opted for the principle for universal suffrage to supplant the communal
based divide and rule British system. However, reservations of seats on the
basis of joint or separate electorates were permitted for the untouchables and
tribals (described by the Constitution as Scheduled Castes (SC) and Scheduled
Tribes (ST) respectively). But this applied to elections to the Lok, but not the
Rajya Sabha. This was a decisive shift whereby the people from general
constituencies within States would elect to the Lok Sabha and the State
legislatures would elect to the Rajya Sabha. This cleared many cobwebs towards
a general policy of representation from all the peoples of a State instead of a
communal representation for religious and other groups other than special
representation for the SC and ST which was originally for 10 years but has been
extended every 10 years by constitutional amendment.
Elections to the Lok Sabha are through single member constituencies on the
basis of universal suffrage except where seats are reserved for SC and ST
candidates. The constituencies are distributed on a state-by-state basis on the
broad basis of a demographic formula. Typically, the larger States return a larger
number of Members of Parliament (MPs) to Parliament. Some States are less
equal than others. Even so, MPs do not just project their State identity but also
the party ticket on which they are elected as well as the caste, group, tribal,
religions, language or other affinities on the basis of which electoral loyalties are
built - even though the electoral law does not permit overt and direct appeals to
such affinities. Since 1992, when caste benefits were privileged as part of the
Supreme Court blessed affirmative action programme, the large States of UP
and Bihar have voted on even more entrenched caste lines. Equally, divisive
appeals by the fundamentalist Bhartiya Janata Party (BJP), which caused the illfamed destruction of the Babri Masjid in 1992 and many other unjust events,
have made a dent to seek and obtain votes for a Hindu India. The Supreme Court
did not help matters when it declared that appeals to Hindutva was not an
appeal to Hinduism. The rise of a fundamentalist Hinduism is a threat to a
multicultural federalism both generally and in respect of the representation of
diverse interests in Parliament. Such appeals contributed to BJP led
governments at the Union from 1998-2004 and in various States especially from
the 1980s. But, this does not mean that regional and State loyalties are
necessarily being eclipsed. In fact, MPs from their States guard their State
loyalties within the framework of the party system especially the MPs from
the Southern, North Eastern States and Kashmir.

33

In theory, the Rajya Sabha was designed to enable the representation of the
States in Parliament. Rajya Sabha MPs are elected by the State Assemblies in
proportion to their population. Once again, States with large populations get a
greater share. Voting broadly takes place on the basis of party affinities which
exercise a more decisive influence than other group affinity factors. From
1951, a domiciliary rule required that a Rajya Sabha MP must be a resident
elector from the State he represents. 90% of Rajya Sabha MPs are native to their
States 59% of whom had been groomed through experience in State politics.
But, in recent years, State parties began to allow non-residents to be elected on
their party ticket. Thus, prominent MPs Cabinet Ministers and even the present
Prime Minister were elected from States in which they do not reside. This
created something of a crisis. In 2003, Parliament changed the law in two
significant respects. Rajya Sabha MPs were no longer required to be permanent
residents of their electing States. Equally, and further, it was declared that votes
be drawn by open rather than secret ballots so that political parties could
maintain an oversight over the party unfaithful. Following these amendments, in
2004, some legislatures elected business magnates and film actors from States
with which they had little connection. This has led to these changes being
challenged in the Supreme Court which allowed these MPs to continue subject
to the final result in the court case. While domiciliary nexus with a state should
be an ideal, since 1990 or so Rajya Sabha seats are slowly, but not insignificant
measure, losing their identity with the region they represent.
Apart the fact that only the Lok Sabha can remove a Cabinet from office, the
powers of the Rajya Sabha are the same as those of the Lok Sabha except for
money bills which can originate only in the Lok Sabha and cannot be finally
rejected by the Rajya Sabha beyond sending it back for reconsideration to the
Lok Sabha on a once-only basis. The deadlocks between the two chambers are
resolved at a joint-sitting, in which the Lok Sabha may have its way due to its
larger numbers. But no government would like to make a joint session a regular
feature of the parliamentary process. This is evident by the fact that joint
sessions have so far been held only thrice -the latest being on 26th March, 2002
on anti-terrorist legislation. The first joint session of this kind was over the
Dowry Prohibition Bill of 1961; and the second on the Banking Service
Commission Repeal Bill of 1977. In any case a constitutional amendment can be
effectively blocked by the Rajya Sabha. For constitutional amendments, there is
no provision as such for a joint sitting for resolving a deadlock. Thus, in such
cases, the Rajya Sabha has a veto. As a federal second chamber, the Rajya
Sabha is armed with various special powers. Through a resolution of the Rajya
Sabha, Parliament can legislate on a state subject otherwise forbidden to
34

Parliaments jurisdiction. This power has been used for purposes such as
creating an all India Forest Service as well as to dictate the basis for social
change as in the case of environment and other legislation. No doubt, if two or
more states loan their legislative power to the Union, they bind only themselves.
National emergencies have to be approved by the Rajya Sabha especially in
the critical inter-regnum when the Lok Sabha is not in session. There have been
critical moments when the Rajya Sabha has blocked legislation. Following the
Emergency (1975-77), Mrs. Gandhis Congress lost the Lok Sabha election but
retained a majority in the Rajya Sabha. In 1995, the Rajya Sabha successfully
over-rode the re-enactment of draconian anti-terrorist legislation and, in 1998 to
patents legislation. But, in 2002, the Rajya Sabhas gauntlet was challenged by a
joint session of Parliament in which the Opposition did not have an overall
majority. While conflicts between the two houses are resolved rather than
permitted to stagnate, the Rajya Sabha can be a thorn in the sides of an erring
Prime Minister even if not necessarily in defence of the interests of the States.
It is difficult to assess the role the Rajya Sabha as a federal second chamber.
Those reviewing the work of the Rajya Sabha have not found its overall
federal contributions to be particularly notable39. No doubt, its work is eclipsed
by the political dominance of the Lok Sabha to whom the Cabinet government is
accountable and which alone can dislodge a government from power. But, the
Rajya Sabha portrays a high standard of debate on federal questions including
the questions raised and the involvement of its members in the various
committees of the Union Parliament. There is always room for restructing
change and increasing its role over appointments, federal matters, foreign affairs
and treaties.
The Distribution of Federal Power
The Legislative distribution of powers between the union and state governments
is carried out in three lists namely, the union, state and concurrent lists
respectively. Broadly speaking, the division of items between these lists is based
on the principles of exclusivity and concurrence. By exclusivity it is meant that
whichever level of government can handle a particular subject more effectively
was exclusively granted that subject on the basis of considerations of federal
governance, security, communication and the planned economy. By
concurrence, it is meant that the subjects in the twilight zone are allocated to
both legislatures - with the laws made by the Parliament prevailing over those
made by state legislatures in cases of conflict. The original constitution had 97
items in the Union list, 66 in the State list and 47 in the Concurrent list. In the
35

last over half a century, the state list has lost many items to the concurrent and
union lists. Between 1950-2001, a total of 27 changes have been brought about
by constitutional amendments : 9 in the Union list, 11 in the State list and 7 in
the Concurrent list. Four out of 9 changes in the union list have enlarged the
executive, cultural and coercive powers of the union vis--vis states. Items
gained by the Union list were lost by the state list. The concurrent list has not
lost any item. During the Emergency in 1976 four new significant items were
added to the concurrent list, namely, the administration of justice in a state and
formation of lower courts, forests, education, population control and family
planning. In terms of different regimes, of the 27 amendments mentioned above,
thirteen were made in the Nehru era, fourteen during the Indira Gandhi era and
none in the post-1989 multi-coalition government phase40. One recent
amendment that is not computed above is the Eighty Eighth amendment in 2003.
The important change made by it is the insertion of a new article which provides
that a new tax called ' service tax ' can be levied by the Union and collected and
appropriated by the Union and the States establishing Union control over State
revenue raising41.
The strategy of the federal constitution was to create a powerful Union at the
expense of the States. This is self evident from the distribution of powers. But,
even in crucial areas where the States were ostensibly given exclusive powers,
these have been made subject to regulatory legislation passed by the Union. This
is particularly true of entries concerning the police, communications, water
resources, mines and mineral development, industries, trade and commerce,
production, supply and distribution of goods, aspects of corporate law,
performative entertainment and aspects of taxation and stamp duty. During the
Emergency in 1976, the critically important issues of education and forestry
were transferred to the Concurrent list. The Union lost no time in establishing its
supremacy in all these matters. Today, no State can use its forest resources
without the Unions permission. National control over education has curtailed
State initiatives. The Constitution especially limits the power of the States and
Union to limit inter-state commerce. In fact, the federal power feeds the
ambitions of a command planned economy in which the States play a
subordinate and inferior role.
By and large, the judiciary has interpreted the distribution of powers between
the Union and States to respect the federal distribution in favour of the Union
whilst not entirely whittling down the legislative preserve of the States. The
record of the Supreme Court and High Courts have been uneven. In 1953,
Supreme Court took a confused view on the States power over inter-state sales
36

to invite a constitutional amendment42. Various matters came to the Supreme

Court in the form of inter-state disputes as well as through Presidential
references where the court was asked to give an opinion on federal matters. The
Supreme Court has tried to strike a balance. While it has validated the Unions
control over critical aspects of the political economy, it has taken care not to
permit the States powers to be entirely swallowed up. Thus, while the Union
has the residuary power to legislate on matters not listed by the Constitution, the
residuary powers cannot be expanded to restrictively interpret the listed powers
of the States. Equally, even where Union legislation occupies the field, State
initiatives and empowerments have been protected. Judicial policy has changed
with the times. In the high Nehruvian days of planned development, the Court
favoured interpretations that gave the Union a greater power over revenues,
resources and regulatory control. After the Emergency, the courts have been a
little more cautious. Since the judges of the Supreme Court are principally
drawn from the States, they are conscious of the ground realities of the budget
deficits of the States, the lack of finances and the fact that it is the States which
have to eventually inter-face with the people to implement socio-economic
schemes. Elections are beginning to focus more and more on the State delivery
systems and their responsibilities. While the courts have been sensitive to State
demands, they have not quite let go of the centrist planned economy principles
with which they are eminently familiar.
Beyond the distribution of politics and legislative power, there are other in-built
federal controls on the legislative power. There is a curious provision whereby
the Governor of a State can refuse to sign a legislation passed by the State
legislature if he thinks that this will be contrary to Union legislation. Such
legislation is reserved for approval by the Union executive. This is a kind of
federal veto through the Governor of a State traceable to imperial legislation including an obscure Canadian provision. However, in India this has been a
major irritant in union-state relations as is amply documented by the Sarkaria
Commission Report. The Report shows that out of fifteen state legislations so
reserved between 10 November 1969 and 7 June 1984, the Union government
withheld its assent in nine cases. In six cases, decision was taken after one and a
half years, in five cases after three years, in three cases after six years and in one
case after twelve years43. The Commission recommended that normally the
Governor must abide by the advice of the Council of Ministers. In its view, the
discretion of reservation of a state legislation by the Governor should be
exercised in rare and exceptional cases when such a legislation is patently
unconstitutional. The Commission also recommended that a state bill so
reserved should be disposed off within four months from the date of its receipt.
37

While the Supreme Court has now given a strict interpretation to such State Bills
reserved for the assent for the President, this provision remains a nuisance for
Indian federalism.
Indian federalism has transited from a planned economy into a new phase of
economic liberalization. It has also moved on from the one-party domination of
the Congress party throughout the federal system. Since 1989, Union
governments have either been minority or coalition governments. While the
emphasis on Union control has not diminished, both the Union legislature, and
the laws and controls enacted or enabled by it, have been more sensitive to State
demands.
V.

Making the Federation Work

Aware of the complexities of making a federation work, the Constitution makers

took some important pre-emptive steps. A detailed Constitution giving decisive
edge to the Union over the States placed the latter in the position of enforcing its
demands through administrative directions. To ensure that questions of
distribution of revenue were dealt with through a controlled discourse, the
Constitution itself created an autonomous Finance Commission which would
hear all the States and make recommendations on rational formulas for assessing
needs. Potential claims with the erstwhile Princely States were taken away from
the law courts and relegated for political resolution. Disputes between the Union
and the States or the States inter se were entrusted to the Supreme Court. Water
disputes were taken away even from the Supreme Court and reposed in
specialist tribunals. A powerful all - India administrative service inherited from
the British spreads across the federal system. It was hoped that all this would
keep, if not cement, the Union together even if political tensions emerged
between the Union and the federating units.
But, both the Constitution makers and the incoming Nehru government viewed
the Constitution as a goal based Constitution to instrument social and economic
change. In this, inspiration was drawn from a mixture of Fabian socialism,
Americas New Deal and Soviet planning. In the early fifties, Nehrus
government enacted a number of statutes to create a regulatory welfare state.
Although Nehrus government had a lot of problems with the Supreme Court
over agrarian reform laws and the acquisition of property at less than market
prices, it has been rightly pointed out that the courts did not disturb the
apparatus of regulatory control over investments, essential commodities, energy,
mining, labour laws, foreign exchange and control and any or all other areas of
control. In fact, the judiciary saw itself as an arm of the social revolution.
38

But alongside this huge apparatus of control, Nehru also created an informal
non-Statutory Planning Commission which created Indias Five Year plans
which engulfed the political economy in its prescriptions. Alongside the
Planning Commission, Nehru had already put in place a National Development
Council (NDC) in 1952 which was set by an executive resolution of the Union
cabinet for the approval of plans by State governments prepared by the centrally
appointed Planning Commission. The NDC included the Prime Minister, some
important Union Ministers and the Chief Ministers of the States. The Planning
Commission was more than a think tank and created Indias huge public sector.
Even though Indias public sector is now being sold off and private investment
is being invited by the Union and the States, the Planning Commission remains
an important source of policy on every aspect of the economy. Ironically, such a
powerful body was not created by Parliament and does not admit to mandatory
membership of the States. It operates on the basis of wide consultation, but
remains alive to its own counsel. Perhaps, this is what prompted the Sarkaria
Commission (1988) to suggest that the Planning Commission should be given a
constitutional status. But the Union does not want to be fettered by such a
proposal.
Over the years, the federal system has built up a number of cooperative and
compulsory mechanisms to invite participation in the federal process as well as
instrument the Unions control. Some of this control emerged from various
statutes. India already possessed the Anglo Indian Codes enacted by the British
which had codified criminal law and procedure, the common and chancery laws,
laws relating to business, commerce, banking, credit and trusts so that they
operate within a homogenous legal system. From 1956, successive non statutory
Law Commissions appointed by the Union have maintained an oversight over
this statutory corpus. Welfare oriented socio-economic legislation was enacted
for all parts of India. The Hindu laws were codified in 1955-6 amidst
controversy which continues to undermine the possible codification of the
Muslim law. But, in order to keep the contours of change within its control, even
in areas like education, new statutory mechanisms have superceded the interstate committees set up under British rule. The University Grants Commission
and special statutory councils for medicine, dentistry, Indian medicine and
technical education exercise pervasive control supported by the Supreme
Courts complex interventions in these areas. Both the courts and policy makers
feel justified in retaining these controls because corruption has eaten into State
systems of control to a point that it is felt Indias investment in technical

39

education (which is crucial to its development) would be jeopardized if this

national control is taken away.
To enable interaction with and between States, the Constitution provided for an
Inter-State council which was set up in 1990 in which all the States participated
as a matter of right. However, this experiment turned out to be a damp squib. As
minority and coalition governments emerged at the Union, the Inter-State
Council (ISC) was required more by those States governed by political parties
with no power or pull with the government in power at the Union. In the course
of time, the Inter-State Council became more of a talking shop since crucial
economic decisions continued to taken through the National Development
Council (NDC) and in other fora44. The Sarkaria Commission (1988) rooted for
an effective Inter-State Council but did not want to put the well tried institution
of the NDC at risk even though the ISC is a constitutional body and the NDC
was not even created by statute. The National Commission of the Constitution
echoed the importance of the Inter-State Council but failed to build an
appropriate remit for the ISC which continues to be a forum for discussion
without a dispositional decision making capacity. In the end, crises are sought to
be resolved administratively and politically rather than through formal
procedures.
There is an incoming tide for the scramble for natural and revenue resources.
The Union has an overall control over both. But, there is one area of dispute that
is acquiring greater significance. The truism that the 21 st century will be
confronted by insoluble fights over water applies even more significantly to
India. Since independence, there have been over 100 significant inter-state
disputes over water. Many have been resolved. The most significant one with
Pakistan over the waters of the Indus was settled through UN help in 1960. But
every major river in South India has been the subject of adjudication in long
drawn water tribunals. The Cauvery dispute has led to general tension, killings
and suicide. In the North, disputes over the distribution of waters of the Punjab
have been questioned by the Punjab legislature which has enacted legislation in
2004 to overreach even Supreme Court decisions. Both the Union and the
Supreme Court have suggested that a garland of canals inter-connect Indias
rivers so that flood surpluses from one basin transmit to the drought areas of the
others. There is already opposition to building large dams in India which will
gather increased intensity to the garland of canals project. No clear answer has
emerged amidst suggestions that all of Indias water be nationalized.

40

Although the Supreme Court is the arbiter of inter-state disputes, few disputes
between the States or with the Union have gone to the Supreme Court. In some
crisis, the President has sought the opinion of the Supreme Court to
successfully diffuse contemporary tensions. But, the Supreme Court has
interpreted many laws and policies through its other jurisdictions which have
impacted on the federal system. Apart from the Supreme Courts federal
jurisdiction to resolve disputes and interpret the federal provisions, the Supreme
Court and High Court have wide original and appellate powers. These have been
widened by the advent of public interest litigation. In various cases, the Supreme
Court has increased the power of the Union to deal with issues connected with
food, the environment, and other areas. Parliament has also created a National
Human Rights Commission which along with the constitutional commission on
untouchables and tribals (SC & ST) and other commissions on minorities and
others have increased federal control over state accountability on matters
relating to human rights.
Ultimately, major disputes are resolved politically. As long as India remains a
stable constitutional democracy, the ultimate endeavour and emphasis will be to
find solutions through the many fora of discussion, contestation, and dispute
resolution that are part of Indias federal system.
VI.

Into the Future

Indian federalisms past has caught up with its future-even if both are being
viewed through contemporary eyes.
It would be useful to summarize some broad conclusions on the rewriting of
Indian federalism over the last half century.
(i)

Indian federalism has transformed from the revenue-basedlaw-and-order federalism of British to the paradigm of
planned development of the Nehru era to a cooperationbargaining model dictated by the electoral weakening of the
Union and the rise of strong regional parties. However,
vestiges of all three approaches survive in that internal
disturbances and secession movements and the need to
instrument social and economic welfare for over 350 million
people below the poverty line remains a priority.

41

(ii)

If the strong planned development model was intended to

subordinate group demands on the basis of caste, region,
language, culture and religion to the idea of a new India,
many such group demands have been recognized within an
overall federal system. The original constitution created a
federal system on the basis of principles of weighted and
differentiated equality to recognize group claims so as to
override demands for equal treatment. India pursues a policy
of unequal federalism so that some states are differently
equal than others. Kashmir even has its own constitution
within the overall constitutional framework.

(iii)

The consequential effect of group claims on the federal

structure has been that the entire geographical basis of
Indian federalism has been re-cast. Indian federalism has
been reorganized on the basis of linguistic and cultural
identity. This has been achieved through a combination of
constitutional amendments, legislation and exercising of
executive power. Within states, special institutions of
governance have been devised for tribals and others. All this
is partly to reorganize the federal basis of group life under
the Constitution as well as stave off disruptionist and
secessionist pressures.

(iv)

The pressure of globalization has tried to lessen the hold of

the planned development model which, never the less,
continues to provide the framework of federal governance.
No less significantly, the use of the treaty making power
infringes on the federal system to override State
empowerment. There is considerable concern that the treaty
making power should be subject to inter-state and
democratic discussion before treaties are signed or ratified
because of the powerful influence of comprehensive selffulfilling treaties like the WTO treaty.

(v)

Over time, the institutions of federal governance have

changed in their texture and working. While parliament
draws its representatives on a state-wise basis, the Congress
party dominated the federation at the Union and most of the
states till around 1977 - even though oppositional state
42

governments had emerged earlier. However, since the 1980s

the emergence of powerful regional parties in the South,
North East and elsewhere have altered the equations of
federal politics all the more after 1989 when there have
been minority and coalition governments at the Union. There
is a case for reviewing the federal relations in favour of the
States including considering the case for a stronger Council
of States (Rajya Sabha) to represent the States interests and
strengthening the constitutionally entrenched system local
government.
(vi)

The legislative and executive powers of the Union have been

used to dominate the federation in virtually all areas of
activity. This is only partly due to the design of the
Constitution. The Union has often abused its powers by
imposing emergency rule or through devious tactics by the
Governors of the States appointed by the Union. The
governors have reserved State legislation for the Union,
recommended Presidents emergency rule under dubious
circumstances and played politics in keeping opposition
parties out of power. While a little more discipline is
entering into these processes, it is not enough; and such
practises hold federalism to ransom.

(vii) The Unions federal control has been exercised in a number

of statutory and non-statutory ways. Innumerable Union
statutes control key areas of governance including the
regulation of material resources, infra-structure creation, the
economy, education and welfare. Extra-constitutional
institutions, like the Planning Commission created by the
Union executive, have dominated Indias political economy.
Even though inter-state cooperation is being explored though
institutions like the Inter-State Council, such federal
mechanism, are talking shops which do not exercise any
effective control over allocative and other decisions and
therefore needs to be made effective andrelevant.
(viii) Indian governance and perforce, its federalism faces the
challenge of an emergent Hindu nationalism which threatens

43

the basis of Indias Constitution; and, perforce, the greatest

experiment in secular living the world has ever known.
Paradoxically, all these pressures have left Indian federalism simultaneously
both fragile and robust without enfeebling it.
The past has expressed many doubts about the viability of Indias governance.
Before Independence, there were imperial doubts about whether India was a
cohesive and viable nation. This resulted in the partition of India under
circumstances which could have balkanized the sub-continent. In the sixties,
India was referred to as an area of darkness transiting through its most
dangerous decades. In 1962, an Indian High Court judge asked:
And as the Fifties give way to the Sixties the question that India faces is:
Can these poor people, multiplying at the rate of 9 million a year be kept
alive under a system of free parliamentary Government? Or will India be
forced, in a desperate attempt to keep its masses from starving to through
aside its democratic institutions (as much as Asia already has) and adopt
in their place (more) ruthless methods ..45
In the seventies, India was disparagingly referred to by as a wounded
civilization46 enmeshed in self doubt and turmoil whilst drifting towards
totalitarianism. The Emergency (1975-77) confirmed peoples worse doubts to
question whether India was capable of a democratic governance. Since the
1980s, the rise of Hindu fundamentalism seeks to undermine the basis of
Indias secular federalism. There have been times when Indian politics has
abused the constitutional provisions in ways that are perverse. However, the
democratic federal system has survived to acquire stability. The Indian people
amidst all their dissensions and disputes have struck back to take Indian
democracy into the future in a sensible way. Eventually, it is on the people that
the ultimate fate of a constitution depends.

44

NOTES

1.

Kesavananda v. State of Kerala (1973) 4 SCC 225. The phrase about the
constitution being in a state of becoming is taken from Justice Dwivedis
judgment in this case (at p. 921).

2.

The original design of Indian federalism comes from the British

Government of India 1935. But even in its original design of 1950, the
federalism of the Indian constitution was not just a clone of its imperial
predecessor. On the transformations in the Constituent Assembly which
drafted Indias Constitution from 1946-1949 see Granville Austin: The
Indian Constitution: Cornerstone of a Nation (New Delhi, Oxford
University Press 1966) 186-264; B. Shiva Rao: B. Shiva Rao (ed) The
Framing of Indias Constitution A Study (Bombay, N.M. Tripathi Ltd.,
1968) 592-707.

3.

The best critical overview of the Indian federation is the Sarkaria report
entitled: Commission on Centre-State Relations: Report (New Delhi,
Government of India 1988). For a broad overview see R. Dhavan and G.
Goel: Indian federalism and its discontents in Gert W. Kueck (ed)
Federalism and Decentralization: Centre-State Relations in India and
German (Delhi Mudrit 1998) 43-83. For an earlier account see K.R.
Bombwale: Foundations of Indian Federalism (Bombay, Asia Publishing
House 1967). From 1989 (when the era of political coalitions
commenced) and after 1991 (when a policy of economic liberalization
from State control began) see generally Lawrence Saez: Federalism
without a Centre: The Impact of Political and Economic Reform on
Indias Federal System (New Delhi, Sage Publications 2002). Note also
the anthology of comments brought together by B.D. Dua and M.P. Singh
(ed): Indian Federalism in the New Millenium (Delhi, Manohar 2002).
Two decades after the Sarkaria commission submitted its report, the
central government has set up a four member commission headed by
former Chief Justice of India, Justice Madan Mohan Punchhi. The
commission has been asked to submit its report within two years. The
terms of reference for the commission include looking into matters
concerning federal crime as well as deployment of central forces in
states under certain conditions.
45

4.

These metaphorical phrases are taken from Benedict Anderson: Imagined

Communities : Reflections on the Origin and Spread of Nationalism
(London Verso 1983); Sunil Khilnani: The Idea of India (London, Hamish
Hamilton 1997) and V.S. Naipaul : India: A Million Mutinies (Calcutta,
Rupa 1990). But, we must demur against over-reductionist explanations
about India as a collectivity. The concept of India is not just a creation of
near contemporary political imagination. Indias million mutinies are
often part of a creative chaos. The whole is greater than the aggregate of
its parts.

5.

See S.S. Dhavan: What are the Princiely States (Allahabad, Kitabistan,
1946); Ian Copland: The Princes of India in the Endgame of Empire 19141947 (Cambridge, Cambridge University Press 1997) and Coplands essay
The integration of the Princely States: A bloodless revolution in D.A.
Low and H. Brasted (ed) Freedom, Trauma Continuities: Northern Indian
and Independence (Delhi, Sage Publications, 1998). From a federalist
perspective see V.P. Menon: The Story of the Integration of the Indian
States (Calcutta, Orient Longman 1956).

6.

For a survey of the amendments to Indias Constitution see M.V. Pylee:

Constitutional Amendments in India (Delhi, Universal Publications,
2003).

7.

See R. Dhavan: A Constitution for a Civilization (Delhi, mimeo 1998

Text of the M.N. Kapur Memorial Lecture).

8.

See Economic Survey of India 2002-3 (New Delhi, Ministry of Finance,

Government of India, 2003).

9.

On Indias demographic diversity see Census of India: The First Report

on Religions Data (New Delhi, Registrar General and Census
Commission 2004).

10.

Taken from the census data of 1991. Richer data is emerging from the
Census of 2001; see further Kumar Suresh Singh: People of India
(Introduction: Volume I (Oxford, Oxford University Press 2002 revised
edn).

46

11.

For the evocative appeal that Indian federalism should be broken into an
increasing larger number of States, see Rasheeduddin Khan: Federal
India: A Design for Change (Delhi, Vikas Publishing House, 1992).

12.

This is analogous to the concept of asymmetrical federalism in

comparative theory see Ronald L. Watts: Comparing Federal Systems
(Montreal, McGill Queens University Press 1999) generally.

13.

Article 370 of the Constitution is designed to provide grater autonomy to

Kashmir which has its own constitution. For an account of this design see
A.S. Anand: The Constitution of Jammu and Kashmir (Delhi, Universal
Publication 2004 edn).

14.

Thus, China has accorded special treatment to Macao and Hong Kong and
other territories. Quebees claims for distinctness continue for recognition
even if the Meech Lake (1992) and Charlottle Town (1992) ended in
deadlock.

15.

For a study of the troubled North Eastern States see B.S. Verghese Indias
North East Resurgent: Ethnicity, Insurgency, Government Development
(Delhi, Konark 1996).

16.

For the foundation report see Government of India: Report of the States
Reorganization Commission (Delhi, Government of India, 1955).

17.

For the Fundamental Rights case see Kesavananda . (supra n. 1); and on
the dynamic from which it was form and generated see G. Austin:
Working of a Democratic Constitution: The Indian Experience (New
Delhi, 1999) 258-277, 328-333.

18.

S.R. Bommai v. Union of India (1994) 3 SCC 1. More generally on the

legal travails of the basic structure doctrine see M.P. Jain: Indian
Constitutional Law (Nagpur, Wadhwa and Co. 2003) 1897-1935.

19.

On the Constitutional amendments see M.V. Pylee (supra n. 6).

20.

see Constitution of India: Articles 243-243O (on the panchayats) and 243
P. to 243 ZY (on Municipalities). Note also the provisions on the Union
territories (Articles 239-239B) and tribal areas (Articles 244-244A). The
literature on Indias new experiments in local government is increasing for
47

a preview see G. Mathew Institutions of self government in Indian in

B.D. Dua and M.P. Singh (ed) .(supra n. 3) 269-286. After 2000, the
Finance Commission of India has to consider the budgetary needs of local
government (Article 280 (bb) and (c) of the Constitution).
21.

Report of the Eleventh Finance Commission for 2000-2005 (Delhi,

Ministry of Finance; 2000) Chapter III (Part 8.27).

22.

Report of the National Commission to Review the Working of the

Constitution (Delhi, Government of India, 2002 mimeo) Chapter 8 on
Union-State Relations as also pro. 9.71-9.12.

23.

see Sarkaria Commission (supra n. 3) 161-189, R. Dhavan: Presidents

Rule in the States (Bombay, N.M. Tripathi 1979); B.D. Dua: President
Rule in India : 1950-1974, A Study in Crisis (New Delhi S. Chand 1979);
and perforce the case S.R. Bommai (supra n. 18).

24.

On the President see J.R. Siwach: The Indian Presidency (Delhi Hariyana
Prakashan 1971; ibid: The Politics of Presidential Power (Simla, Indian
Institute of Advanced Study 1979). On the Governor, see A. Kashyap:
Governors Role in Indian Constituion (New Delhi, Lancer Books 1993).

25.

Reproduced in R. Dhavan (supra n. 23) Appendix.

26.

Note specifically Article 78 and 167 of Constitution of India giving the

President and Governor such powers. On the Indian Cabinet and its
functioning see V.A. Pai Painandikar and A.K. Mehra: The Indian
Cabinet: A Study in Governance (Delhi, Konark Publication Ltd. 1996);
James Manor: Nehru to the Nineties: The Changing Office of the Prime
Minister of India (Toronto, University of British Columbia Press 1994).

27.

Paranjoy Guha Thakurta and S. Raghuraman: A Time of Coalitions:

Divided We Stand (New Delhi, Sage Publications 2004); M.P. Singh and
A. Mishra: Coalition Politics in Politics: Problems and Prospects (New
Delhi, Manohar 2004).

28.

Constitution (Ninety First Amendment) Act 2004.

29.

Rai Sahib Ram Jawayya Kapur v. State of Punjab (1995) 2 SCR 225.

48

30.

Aruna Roy v. Union of India (2002) 7 SCC 368.

31.

There is a vast literature on the emergency. On constitutional changes

during the Emergency see R. Dhavan: The Amendment Conspiracy or
Revolution (Allahabad, A.H. Wheeler, 1978). On the post emergency
amendments to the emergency amendments see R. Dhavan: Amending the
Amendment (Allahabad, A.H. Wheelr, 1979); see also generally Sarkaria
Commission report (supra n. 3) 161-189.

32.

supra n. 23

33.

see R. Dhavan: Treaties and people: Indian Reflections (1997) 39

Journal of the Indian Law Institute 1-46; Rekha Saxena, Treaty-Making
Powers: A Case for Federalisation and Parliamentarisation, Economic
and Political Weekly, January 6,2007, 24-28.

34.

Vishaka v. State of Rajasthan (1997) 6 SCC 241

35.

Constitution of India Part XIV; and M.P. Jain (supra n. 18) 1679-1766.

36.

Report of Vohra Committee (Ministry of Home Affairs, mimed, 1993)

and its discussion by the Supreme Court in Dinesh Trivedi v. Union of
India (1997) 4 SCC 306.

37.

see generally B. Shiva Rao (supra n. 2) 418-44 generally.

38.

Note speech of Gopalaswami Ayyangar in the Constituent Assembly

Debates (CAD) on 28 July 1947: see (1947) IV C.A.D. 923.
39. see S. Shastri Representing the States at federal level: Role of the Rajya
Sabha and Inter-State Council Paper to a conference on federalism
organized by the Forum of Federations in June 2004;
Rekha Saxena ,
The Rajya Sabha: A Federal Second or Secondary Chamber?, Indian
Journal of Federal Studies ,1/ 2007

40.

see M.P. Singh: Federal Division of Responsibilities in India (2004)

Indian Journal of Federal Studies 109-111.

41.

Constitution (Eighty Eight Amendment) Act 2003. Generally on financial

federalism see Constitution of India: Articles 264-293; Sarkaria

49

Commission (supra n. 3) 243-356; M.P. Jain (supra n. 18) 663-760; and

M. Govinda Rao Indian Fiscal Federalism from a Comparative
Perspective in N. Mukharji and B. Arora (ed) Federalism in India:
Origins and Development (New Delhi, Vikas Publishing House, 1992)
272-316.
42.

Bengal Immunity Co. v. State of Bihar AIR 1955 SC 661.

43.

Sarkaria Commission Report (supra n. 3)

44.

For a dismissive view of the Inter-State Council and its role in the present
federal system, see Lawrence Saez, Federations without a Centre: The
Impact of Political and Economic Reform on Indias Federal System, New
Delhi: Sage, 2002. However, Rekha Saxena takes a somewhat less critical
view of the Inter-State Council and hopes that its relevance may
federalization of the system, see Rekha Saxena, Strengthening Federal
Dialogue: Role of NDC and ISC, Contemporary India, Vol. 1, No. 3,
July-September 2002; note also Rekha Saxena: Inter-Governmental and
Union Agencies in Canada and Indian Governmental system (Ph.D.
Thesis: Delhi University 2001 forthcoming as a book).

45.

S.S. Dhavan J in R.T. Authority v. Kashi Prashad AIR 1962 All. 551 at pr.
102 p. 567.
46.The phrase most dangerous decades is taken form Seling Harrison:
India: The Most Gangerous Decades (Delhi, Oxford University Press
1960). The phrase area of darkness is taken form V.S. Naipal : An Area
of Darkness: a Discovery of India (New York, Vintage Books 1991
published 1964). V.S. Naipal wrote again of India : A Wounded
Civilization (New Delhi, Vikas Publishing House 1977).

50

About the Authors

Rajeev Dhavan is a practicing senior advocate in the Supreme Court of India
who was educated at Allahabad, Cambridge, and London universities. He has
taught at Queens University(Belfast) and Brunel University (West London) and
has had visiting assignments at London, Delhi, Wisconsin(Madison),and Texas
universities as well as at the Indian Law Institute in Delhi. He has written an
edited various books and articles on constitutional law and policy and public
affairs.
Rekha Saxena after having taught in Delhi University for over a decade is now
Associate Professor at Centre for Federal Studies, Hamdard University, New
Delhi. She was a doctoral fellow and a Faculty Research Fellow of the ShastriIndo Canadian Institute at Queens University in Canada in 1999-2000 and 2003
respectively. Her recent books include: Situating Federalism: Mechanisms of
Intergovernmental Relations in Canada and India ( Manohar,2006) and
Mapping Canadian Federalism for India ( Konark,2002).Her areas of
specialization are political institutions in India and Canada, with special
reference to federalism, elections, party system, and constitutionalism.

51

52

53

1
2
3
4
5
6
7
8
9

54

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46

55