You are on page 1of 4

BASIC

PRINCIPLES OF FEDERALSM
At the outset it is to be noted that the expression federation or federal form of
Government has no fixed meaning. However, it broadly indicates a division of
powers between a Central (federal) Government and the units (States)
comprised therein. It is to be understood that no two federal constitutions are
alike. Each of them, be it of USA, Canada, Australia or of any other country, has its
own distinct character. Each of them is the culmination of certain historical
process. The same is true about our Constitution.
According to Dicey, federalism is a concept, which unites separate States into a
Union without sacrificing their own fundamental political integrity. Thus the
essence of a federation is the existence of the Union and the States and the
distribution of powers between them. Federalism, therefore, essentially implies
demarcation of powers in a federal compact.1 The oldest federal model in the
modern world is said to be the Constitution of USA. In this case, number of
independent States came together to form a Federation, indestructible States
forming an indestructible Union.
The following are the basic principles of federalism:
1. A compact or agreement between independent and sovereign units to
surrender partially their authority in their common interest and vesting it
in a Union and retaining the residue of the authority in the constituent
units.
2. Supremacy of the Constitution, which cannot be altered except by the
component units.
3. Distribution of powers between the Union and the regional units each in
its sphere coordinate and independent of the other. The basis of such
distribution of power is that in matters of national importance in which a
uniform policy is desirable in the interest of the units authority is
entrusted to the Union, and matters of local concern remain with the
States.
4. Supreme authority of the courts to interpret the Constitution and to
invalidate action violative of the Constitution. A federal Constitution by its
very nature consist of checks and balances and must contain provisions
for resolving conflicts between the executive and legislative authority of
the Union and the regional units.2
Now, the pertinent question is- Are all these conditions present in the
Constitution of India? In our Constitution, points 1 &2 is absent, but the points 3
&4 is very much present, however with some modification. Point 4 is there in full
force. In response to the above classic model of federalism vis--vis Indian
federalism, it may be held thus:


1 S.R. Bommai v. Union of India.
2 For detailed discussion, see State of West Bengal v. Union of India.

1. Indian Constitution was not the result of any compact or agreement as the
Units constituting a unitary State that were non-sovereign were
transformed by abdication of power into a Union.
2. Our Constitution is undoubtedly supreme, but it is liable to be altered by
the Union Parliament alone and the units have no power to alter it.
It is to be noted that only federal system that fulfills all the above stated criteria
is the Constitution of USA. Therefore, many also regard the US federal model as a
classic model of federalism. But, the pith and substance or crux of federalism is
the division of power.
What is the nature of the Indian Constitution- Federal, Unitary, and Quasi-
federal?
The nature of Indian federalism has always been a debatable issue amongst
various scholars and legal luminaries. It has been variedly referred to as federal,
unitary and quasi-federal depending on various arguments and interpretation
adopted. Dr. Ambedkar stated on the floor of the Constituent Assembly that the
Constitution is, both unitary as well as federal according to the requirement of
time and circumstances. A review of the provisions of the Constitution shows
unmistakably that while creating a federation, the Founding Fathers wished to
establish a strong Centre. At the outset, it is to be noted that our Constitution is
undoubtedly a federal one. But, it has a strong and powerful Centre as evident
from the following scheme of distribution of powers under the Constitution.
Namely-
1. Article 2 of the Constitution empowers the Parliament to admit into the
Union, or establish, new States on such terms and conditions as it thinks
fit. In doing so, it has not to seek the concurrence of the State whose area,
boundary or name is likely to be affected by the proposal.
2. Article 3 provides that Parliament can by law form a new State by
separation of territory from any State or by uniting two or more States or
parts of States or by uniting any territory to a part of any State; increasing
the area of any State; diminishing the area of any State; altering the
boundaries of any State; or altering the name of any State.
3. Under Article 248 read with Entry 97 in List I of the VII Schedule, the
residuary power has been conferred on the Union.
4. There is single citizenship, unlike USA.
5. Judiciary is single and unified for the entire country unlike USA, where
there is separate Federal judiciary and State judiciary.
6. The executive power of every State must be so exercised as not to impede
or prejudice the exercise of the executive power by the Union. (Articles 73
& 162)
7. The executive power of the Union also extends to giving such directions to
a State as may appear to the Government of India to be necessary for
those purposes and as to the construction, maintenance of means of
communication declared to be of national or military importance and for
protection of railways. (Article 257)
8. The States have to depend largely on financial assistance and grants from
the Union. (Articles 268 to 273 & 275)

9. As economic planning is a concurrent subject, every major project must


receive the sanction of the Central Government for its financial assistance
since discretionary power under Article 282 to make grants for public
purposes is vested in the Union, notwithstanding that the purpose is one
in respect to which Parliament or State legislature can make laws.
10. During the operation of a proclamation of emergency, Parliament can
make laws with respect to any matter in list II. (Article 250)
11. Parliament has power to make laws for giving effect to International
Agreements. (Article 253)
12. Article 368 confers powers on Parliament to amend the Constitution,
albeit by a special majority. The powers extends to amending matters
pertaining to the executive as well as legislative powers of the States if the
amendments are ratified by the legislatures of not less than one-half of
the States.
These limitations together indicate that the Constitution of India cannot be said
to be truly federal in character like that of USA. Due to these factors, some people
have called our Constitution a unitary or quasi-federal. However, it is
submitted that the fact that under the scheme of our Constitution, greater power
is conferred upon the Centre vis--vis the States does not mean that States are
mere appendages of the Centre. Within the sphere allotted to them, States are
supreme. In the light of the past history of India, a strong Centre was probably a
natural and necessary decision taken by the Founding Fathers of the
Constitution. The federalism in the Indian Constitution is not a matter of
administrative convenience, but one of principle- the outcome of our own
historical process and recognition of the ground realities.

Federal features of Indian Constitution3
1. The criticism that Indian States were not independent States before they
became parts of a Federation is not plausible because federalism already
existed in the Govt. Of India Act, 1935 before its adoption by the
Constituent Assembly.

3 Learned author H.M. Seervai is of the view that federal principle is dominant in our Constitution

and it is not watered down. See, Constitutional Law of India at p.166, 3rd Edn. Also, see pp.15-17
of the case material supplied.

2. It has been argued that Parliaments power to alter the boundaries of


States without their consent is a breach of the federal principle. But, in
practice, it has been seen that the States force the Parliament to do that.
Parliament does not alter the boundaries on its own.
3. The allocation of residuary power of legislation to Parliament is irrelevant
for determining the federal nature of a Constitution. The reason being
that on this many Constitutions differ, for example in USA and Australia
residuary powers vests in the States, yet they are called fully federal.
4. The most essential feature of federalism is the distribution of legislative
powers, and our Constitution possesses that feature. In this regard, List II,
Schedule VII confers exclusive powers of legislation on the States.
5. Article 352 (emergency power) in case of war or external aggression
threatening the security of India merely recognizes de jure what happens
de facto in federal countries like the USA, Canada and Australia in similar
situations, in which these countries act as though they were unitary. The
Emergency provisions, therefore, do not dilute the federal principle.
Moreover, this power is subject to certain limitations laid down by the
Constitution itself.
6. The war power belongs to the Union in all Federal Governments, and
therefore the defense of a State against external aggression is essential in
any Federal Government. Therefore, Article 355 is not inconsistent with
the principle of federalism.
7. Article 356 dealing with proclamation of Presidents Rule in a State in the
case of a failure of constitutional machinery of the State is in fact based on
Article 4, Section 4 of the US Constitution, therefore, not violative of
federal principles. Moreover, it is meant to be used as a last resort.
8. The legislative entries relating to taxes in list II show that the sources of
revenue available to the States are substantial. In addition to the exclusive
taxing powers of the States, the States become entitled either to
appropriate taxes collected by the Union or to a share in the taxes
collected by the Union.

To quote Dr. Ambedkar, the architect of our Constitution, notwithstanding the
fact that there are many provisions in the Constitution whereunder the Centre
has been given powers to override the States, Our Constitution is a federal
Constitution
Lists of case relevant for the topic
1.
2.
3.
4.
5.
6.
7.
8.

S.R. Bommai v. Union of India


State of West Bengal v. Union of India
Union of India v. H.S. Dhillon
State of Rajasthan v. Union of India
Stste of Karnataka v. Union of India
M. Karunanidhi v. Union of India
Berubari Union and Exchange of Enclaves
Ram Jawaya Kapur v. State of Punjab.