Chapter 1

Federalism in India: The Historical Backdrop

1.1 Federalism: - The Conceptual Framework

Federalism is derived from the Latin world/oedus, which means agreement. In

fact federation is an agreement between two types of government sharing
power and controlling their respective spheres. This is aptly summed up by
Wheare who defined federal principle as 'the method of dividing powers so
that the general and regional governments are each, within a sphere,
coordinate and independent.'^ One may agree with James Bryce in his
description of American federal system as 'a great factory wherein two sets of
machinery are at work, their revolving wheels apparently intermixed, their
bands crossing one another, yet each set doing its own work without touching
or hampering the other.'^ Thus federation is a constitutional diffusion of
power in which the activities of the government are conducted in such a way
so as to maintain their respective integrities. In such a form of government,
power is distributed between the Federation (also called federal government,
general government, national government. Union or Centre) and the
federating units (also known as States, Cantons or regional governments),
which has a constitutional sanction behind it. An evaluation of the working of
the various federations in the present-day world does reveal certain socio-
political, economic and cultural factors to have a binding necessity behind the
continuance of scheme of distribution of power germane to the idea and
concept of federalism. Thus a federation is a system of national and local
governments, combined under a common sovereignty with both the national
as well as federating units having autonomous spheres assigned to them by
the constitution. Herman Finer, therefore, says that the federal idea is 'the
plan of government of a number of contiguous territories in association
neither in separation nor in one compound. ^ At the same time, federalism has
to be understood as a poHtical machination intended to reconcile national
unity with the autonomy of federating units. Federalism is, thus, a system of
shared rule.

Federalism is not merely a shared rule, it is also a self-rule in which the

governing bodies are predominantly popularly elected and are accountable to
the people. They exercise power as long as they are able to command support
of the people who elect them. Federalism only fits within the framework of
democratic principles.

As federalism denotes shared rule, it, by that token, is one that implies a
limited government. Federal governments are limited governments, limited
vertically because powers are shared between the national government and
the federating units,^ limited horizontally because the powers, at both national
and units levels are shared among the three branches of the government:
legislature, executive and judiciary.

Federations are never born, they are always created. The centripetal or
integrative mode of forming a federation (or as it is called federation from
below) is one when some sovereign states agree to constitute a central state
above them, sacrificing, in the process, their separate sovereignties. The
centrifugal or disintegrative mode (or as it is referred to federation from
above), on the other hand, is one when a large state creates a number of states
from out of itself and grants them powers of lesser or regional importance
through the constitution. The American, Australian and the Swiss federations
are models of centripetal mode while the Indian and the erstwhile Soviet
federations are models of the centrifugal type.

Indeed, there is no uniform model of federalism in the world to day. There are
federal arrangements as weak as that of the Commonwealth of Independent
States (CIS), which was formed following the break up of the erstwhile USSR,
and of European Community, which has moved from an international
organization but is still far away from being designated as a federal polity.
The former Soviet Union was characterized by such a high degree of
centralization that many observers regarded its federal character as a sham. ^
The Canadian federation, though weak, has been able to identify itself with
Canadian nationalism. There is, on the other, the German federation as an
example of interlaced political system where intergovernmental is
'constitutionally recognized and integral part of federalism.' ^ The US, Swiss
and the Australian examples of federations are those of genuine federations.
The federal idea is not merely a political one, that is, a way of administration
as opposed to the unitary or a confederal idea. It is also a cultural idea:
cultural in the sense that a country may be centralized federation politically
but may be culturally diffused or fused culturally. The Indian federal idea is
that of a centralised federal idea but it is one where there are numerous
culturally diffused regions forming a federating unit of their own, and in the
process maintaining their cultural identity either of their language or of their
tradition. The Canadian idea of federalism is also an idea of a centralised
federation, but it is the national identity, culturally fused phenomenon, that
has made Canada a typical example of a federation. The erstwhile Soviet
federation can be cited as another example of politically centralized
federation, but it was one, which was a culturally decentralised federation, for
the country was a multilingual, multinational and multicultural state.
Federalism is an amalgamation of two separate and yet inter-connected
desires; desire for union and desire for separate identity. It is a desire for
union and not for unity; it is not assimilation; it is a desire for independence:
it is for distinct existence.''

The desire for union, in a federation may be motivated to cover up the threats
of military insecurity a n d / o r to satisfy some common interests. Identifying
some factors leading to the desire for union in a federation, Wheare says;
"Thus, the need for common defence, the desire to be independent,
geographical contiguity and the hope of economic advantage-all helped to
produce a desire for union which was a force in leading England and Scotland
to form the United Kingdom of Great Britain in 1707, the Italian states to form
the Kingdom of Italy in the year from 1856-1864, the German states to form,
first the North German federation in 1867 and then the German empire of
1871, and the South Africa colonies-Transvaal, Orange River, the Cape and
Natal-to form the Union of South Africa in 1909...."^ Federations in the USA,
Australia, Switzerland and Canada too emerged because of the factors as
enumerated above.

The desire to maintain separate identity has been as powerful a factor in the
formation of federation as the desire of union. The federating units which
expressed the desire to form the federation, in all genuine federal systems,
were eager vigorously to keep their regional identities, as demonstrated in
their different religions, cultures, languages traditions, mode and style of their
living, intact. The desire to keep their separate existence had been very strong
while the United States was emerging; it is, in fact, strong even today. So is
true about the federation of Switzerland and Australia. The national
government in the USA, for example, cannot, even today, take the federating
States for granted: no amendment can be made in the US Constitution
without three- fourth of the States agreeing; even the States have as equal
right to initiate the amendment proposal as the national legislature-the
Congress- has. Similarities do make the federation possible: similar political
and social institutions have produced numerous federal systems. But
dissimilarities too have equally produced federation. The desire for
separation as expressed in one type of dissimilarity, or the other, too has
brought about federation. Quoting the American and Canadian examples,
Wheare says, "This (dissimilarity) operated in Canada when Quebec desired
to be separate in order that it might safeguard its own peculiar system of civil
law. It had its effect in the United States where slave- states and free- states
were anxious to keep within their own control decisions about the future of
the institution of slavery within their own borders." ^ Dissimilarities have, to
the extent of keeping separate identities as Hve as possible, helped maintain
federal systems.

The federal principle does not demand the Centre or the national government
to take away all powers from the federating units, nor the federating units to
weaken the Centre. It is system of agreement between the two. The two levels
of governments, in a federation, remain in their respective spheres and use
powers, and perform functions allotted to them. The Centre has the right to
exist, so has the federating units. The two exist not because they are pitted
against each other, they exist because they perform their own obligations and
they can exist only if they cooperate with each other. The federal principle is
based on the values of compromise and not on confronting each other.
Federation is a union of dissimilarities where similarities may exist to the
minimum possible.

A very important feature of federation is the distribution of powers between

the government at the national level and those at the federating unit level.
Three methods of distribution of power are often put forth: one, when the
constitution specifies powers of the national government and gives the
residuary powers to the federating units. This principle was adopted in the
USA and in the erstwhile USSR. The secorid method is one in which the
powers of the Provinces are defined and the residuary powers are vested in
the Centre, as is the case with the Canadian Federation. The third method has
been adopted by Australia where the powers of the Centre are defined; there
is a Concurrent List in which both the Centre and the States can legislate.
However, the State's powers have not been defined and the residuary powers
are vested with them. In Indian Constitution, besides the Union List, State List
and Concurrent List, which define the respective powers and jurisdiction of
Centre and States, residuary powers have been assigned to the Centre.
Whatever may be the form of distribution of powers, the distribution itself is
necessary so that the respective jurisdictions of both governments are
identified and there is no conflict over it.

The idea behind the distribution of powers is to give specific powers to both
the federal government and the governments of the federating units, The
division is done in such a way that the powers relating to the matters of the
national importance or where uniformity of laws is regarded essential or
desirable are given to the national government, and powers relating to
matters of local/regional importance or where uniformity of laws is not
regarded essential is given to the governments of the federating units.
As the distribution of powers has to be done in a precise manner, hence the
need of a written constitution, which is also the supreme law of the land, both
the central government and the federating units derive powers from it and
function under its supremacy. This constitution has to be rigid which means
that there is a distinction between the constitutional law and ordinary laws.
This is done so that the distribution of powers is not tampered with.

Finally there is also a need of an independent and impartial judiciary to act as

the guardian of the constitution. The judiciary facilitates the working of the
constitution by having the final word in the context of the conflict between the
national government and the federating unit over jurisdiction, thus
maintaining the balance between the two to ensure their working within the
limits prescribed by the constitution.

The trend in modern federations, all over.the world, is to strengthen the

powers of the national governments. The centralizing tendencies exist in
every federal system. The national government, everywhere, has an edge over
the state/regional government; financially, the federal/union government is
in a position to give aid to the federating units; the global issues relating to
war, peace and security have strengthened the national governments; the
importance given to the national law over the state law can be another reason
behind the centralising tendencies. The questions relating to the economy,
economic developments and planning give significance to the national
government. These tendencies are present in all federal systems.

1.2 Evolution of Federal Idea in India

The diversity of India is exhibited in not only in its vastness but also in terms
of regions, which have varied cultural ethos, and backgrounds that clearly
reveal the limitations of any kind of unified rule from one place. This can be
verified from the history of India where even the strong empires like Mughals
were divided and sub divided into various administrative units with a fair
amount of autonomy. Yet, there were definite limitations on the local
autonomy in as much as the unified control was always existent to ward off
any centrifugal force. The unified authority also exercised the right to
interfere in the local administration as and when required which included the
replacement of personnel also.

The political and administrative confusion followed by the disintegration of

the Mughal Empire witnessed gradual assertion of British East India
Company as a major political power in Indi^, which was decentralised in the
three presidencies of Bengal, Madras and Bombay. However, with the
passage of Regulating act of 1773, the British Parliament's intervention in the
Company's Indian possession started and a centralised system was initiated
which designated the Governor of Bengal as Governor General of Bengal and
the governors of Madras and Bombay were put under his unified command.
The Charter Act of 1833, which re-designated the Governor General of Bengal
as the Governor General of India, completed the process. The Governor
General of India was given absolute powers in executive, legislative and
financial fields.^° He was to look after the entire British possessions under the
overall authority of British Parliament. In such a unitary system, the
Provinces were put under the unified commands as the Charter Act clearly
declared that the superintendence, direction and control of the whole civil
and military government of all the territories and revenues in India was
vested vv'ith 'a Governor General and counsellors ...' However very soon it
was realised that India could not be governed from a single place especially
when 'the South of India differs from the North as much as France differs
from Germany'. " The events of 1857 further strengthened the feeling, as the
Colonial Government did not anticipate the massive discontentment leading
to mutiny which clearly exposed the inadequacy of the then existing
institutions and instruments in understanding the Indian people. As Dodwell
aptly remarks, " Legislation and administration were both over-centralised. In
short, the Act of 1833 imposed on the Government of India duties to extensive
and detailed to be carried out by a single group of men. It was, probable,
therefore, that the coming years would be marked by an excessive uniformity
of policy and decline in the efficient working of administrative machine, due
to the development of centralisation, in advance of communication." ^2

The Indian Councils Act of 1861 reflected this growing feeling in as much as it
restored the legislative powers to the presidencies of Madras and Bombay to
the pre-1833 situation and also provided for the association of Indians in the
legislative work. But in no way the central control over the entire colonial
possessions in India was loosened^^though the local bodies grew to meet the
local requirements of development, education, sanitation, roads, railways,
agriculture, irrigation, and famine relief. Even the Indian states, which were
562 in number, were also brought under this unified system. B.B. Mishra
states: "though governed by treaties, grants and sanads, the native states
formed an integral part of single geographical whole called India. The British
slowly and gradually devised a constitutional machinery to make that
geographical whole a unified political entity...British moved on to a kind of
relationship which bordered on union and cooperation within the broad
framework of a 'two India's concept', which recognised the personal rule of
the Princes and their control over internal administration as the bases of
overall unity."^''
It will not be out of place to understand as to why the unitary system of
government existed in India till the passage of the Government of India Act of
1919 (which was a partial and limited compromise to the federal idea despite
the existence of provincial governments). The Provincial Governments were
responsible to the Central Government, which in turn was responsible to the
Secretary of State for India who was a member of the British Cabinet, and the
Cabinet was ultimately accountable to the British Parliament. This chain of
responsibilities could only be accomplished in a unitary model in which the
provincial governments could be no more than the agents of the Central
Government which itself was no more than the agent of London. However,
despite all this, the process of decentralisation initiated by the Act of 1861
made, in practice, a rough distinction between subjects of all India importance
and those of local importance. In economic sphere, a rough distinction existed
between the imperial, the provincial and divided heads of revenue. This
decentralization, opines Venkatarangaiya and Shiviah, 'became federalism
when the rough and informal distinctions between the subjects of all-India
importance became formal and acquired a constitutional basis and when the
Constitution provided for the control of provincial subjects by the provincial
governments themselves.'^^ This was done partially by the Government of
India Act, 1919, the objective of which was stated to be the ' increasing
association of Indians in every branch of administration and the gradual
development of responsible government in India as an integral part of the
British Empire'. ^^

1.2.1 The Government of India Act, 1919

The Government of India Act, 1919 was based on Montague-Chelmsford

Report, which clearly stated, " Our conception of the eventual future of India
is a sisterhood of states, self-governing in all matters of purely local or
provincial interests.... Over this congeries of states would preside a Central
Government, increasingly representative of and responsible to the people of
all of them...dealing with matters, both internal and external, of common
interest to the whole of India on equal terms with the self- governing units of
British Empire. In this picture there is a place for the Native States." ^^
The Act of 1919 introduced dyarchy in the nine important Provinces, which
meant dividing the provincial administration into two parts - one looking
after the reserved subjects and the other, the transferred subjects. The
reserved subjects remained under the jurisdiction of the Governor exclusively
while the transferred subjects were to be administered by him on the advice
of the popular ministries responsible to the state legislature. The Devolution
Rule made under the said Act prescribed two lists of subjects which were
divided between the Central Government and the provincial governments-
Central Subjects with 47 items and the Provincial subjects with 51 items. The
residuary powers were vested with the Centre. The subjects of extra
provincial interests were assigned to the Centre while the subjects in whom
the interests of the Provinces predominated were given to the Provinces. The
items such as military matters, foreign affairs, tariffs and customs, railways,
post and telegraph, income tax, currency, coinage, and the public debt,
commerce and shipping and civil and criminal law etc were assigned to the
Centre while the Provincial Subjects included local government, medical
administration and public health, education, public works and irrigation, land
revenue administration, famine relief, agriculture, forest and law and order
etc. In case of any confusion as to whether a particular subject was related to
the Provincial Subject, the Governor General was the final authority to decide.
Further, a number of items mentioned in the Provincial Subjects were
subjected to the Central interference and many of them, for all practical
purposes, became Central subjects. Lastly, the provincial administration was
to be carried on by the All-India Services.

1.2.2 Federalism and the Indian Opinion

After the Government of India Act, 1919, the nationalists also started thinking
concretely on federation quite frequently. In 1925, the Commonwealth of
India Bill drafted by Mrs. Annie Besant and others provided for a federal
structure, which had a strong Centre. ^^ In the same year, the National
Liberation Federation demanded that (i) Provincial Government should be
responsible to the respective provincial legislative councils which should be
wholly elected; (ii) the Central Government should be responsible to the
Legislative Assembly in the whole sphere of internal civil administration; and
(iii) the control of foreign and political relations of the government and the
army be vested with the Governor General for a definite period after which
the situation be reviewed by a commission which should be adequately
representative of the Indian opinion. ^^

(i) The Nehru Report

One of the major efforts by the nationalists to consider and determine the
principles of the Constitution of India was undertaken by the All Parties
Conference or Lucknow Conference on 19^^ May 1928, which constituted a
committee under the chairmanship of Motilal Nehru for this specific purpose.
The report of this committee is popularly known as Nehru Report. Later on,
an enlarged Committee made certain amendments and the proposed
Constitution was finalised as the 'Supplementary Report of the Committee'.
Surprisingly, the proposed constitution was quite close to the subsequent
Indian Constitution in, not only, its form but also in details. .

The 'Commonwealth of India' as proposed in the Nehru Report was to have a

federal set up and the constitution of both Centre as well as the Provinces was
provided in the same constitution. The territorial division of power was
effected between the Central and the states Government. Although,
numerically the Central Subjects with 47 items were less than the Provincial
Subjects^i which had 63 items, the Central List contained important items like
trade and commerce, currency, banking, shipping and navigation, railways,
roads of all Indian and military importance, post and telegraphs, telephone,
defense, foreign relations, civil and criminal laws etc. Important and elastic
taxes like income tax, customs, revenue, excise Corporation profit tax. Opium
including control of its cultivation, manufacture and sale, export duties were
assigned to the Centre. 2° The Provincial Subjects contained relatively less

11
important items like agriculture, cooperative societies, development of
mineral resources industries, police etc. However, in at least 20 out of 67 items
mentioned in the Provincial Subjects, the interference of the central
government was permitted. Both the lists were not all comprehensive and
even had overlapping. For instance, administration of forests^ was a
provincial subject but the 'legislation regarding forests'^^ was a central subject.
The residuary powers were assigned to the Centre.

The composition of the Senate (upper house) of the Parliament was not done
according to the federal principle. The principle of equality of states was
discarded and the seats allocated according to size and population. The
legislators of the provincial legislatures were electorates for the Senate
elections. The Governor of the province could withhold his assent to any bill
passed by the Provincial Legislature. However, a bill passed by the provincial
legislature could only become an Act when the Governor-General would give
his assent. The Governor General-in-Council on the grounds of misbehaviour
and incapability, could remove the judges of the High Court. The proposed
constitution provided for a unitary judicial system. Clause 13 A provided for
emergency in the province which said
(a) "In case of grave emergency and in matter of serious controversy
between Provinces or in a province and an Indian State, the Central
Government and Parliament shall have all the powers necessary, and
ancillary, including the power to suspend and annul the Acts,
executive and legislative, of a provincial government.
(b) The Supreme Court shall have no jurisdiction in cases where the
Commonwealth Government or Parliament has acted in exercise of the
powers under the preceding Sub-Clause." ^4

The Chapter 1 of the Supplementary Report of the Committee regarded

the necessity of Clause 13A as 'quite evident' and found something similar
to it in almost every written constitution. It further added, "The clause no

12
doubt confers extraordinary powers but no Central Government can be
carried on without these powers. What is important for the safety and
security of the people is that such powers should be under the control of
the Parliament and not merely in the hands of the Executive Government.
We have taken care to establish such control." ^

The authors of the Nehru Report did not visualise a classical federation for
India. They pointed out that in many countries federation was adopted
due to certain problems within the country, more as a concession rather
than as a principle. They quoted Brand, ' a writer who played a
considerable part in the evolution of the constitution of South Africa,' as
follows; -
"Federalism is after all a 'pis aller' a concession to human weakness.
Alexander Hamilton saw its dangers, and only acquiesced because by no
other means was union possible. In Canada, Sir John Macdonald strongly
favoured a legislative Union, but was obliged to bow to the intense
provincialism of Quebec. In Australia, the narrow patriotism of the
different states has imposed upon the Federal Government limitations,
which are generally admitted to be checking that country's advance.
Federalism must be accepted where nothing better can be got, but its
disadvantages are patent. It means division of power and consequent
irritation and weakness of the organs of government, and it tends to
stereotype and limit the development of a new country. South African
statesmen have been wise to take advantage of the general sentiment in
favour of a closer form of union." ^6

The authors of the Nehru Report were aware of the peculiar conditions of
India and need for a constitution, which could take care of such
conditions. Hence they asserted that - " In drawing up our proposals we
have deliberately declined to be overborne by one type or the other
(federal or unitary). We have borne in mind the peculiar position of India

13
and have provided for the development of the fullest provincial life
compatibly with national interests. We have kept before us the peculiar
problem of the minorities in various Provinces, which in our opinion,
necessitates the reservation of a certain measure of interference, in cases of
grave emergency, on the part of the central government. The limits we
have provided for provincial activities and functions are very wide, and
within these limits, provincial governments will be masters within their
own houses, free from the control of the central government. It is obvious,
however, that there is a very large field of state activity which, in any
system of stable administration, must be covered exclusively by the central
government which alone can safeguard national interests and reconcile
conflicting claims between province and province." 27 Therefore, the
Nehru Committee formulated a constitution, which was federal in form
but unitary in spirit.

1.3 Federalism & Simon Commission

The Simon Commission made a detailed study of the Indian problem and
suggested that the ultimate Constitution of India must be federal, for it is
only in a federal constitution that units differing so widely in constitution
as the Provinces and the states can be brought together while retaining
internal autonomy. It quoted Maharaja of Bikaner as follows:
"...I look forward to the day when a united India will be enjoying a
dominion status under the aegis of King - Emperor and the Princes and
States will be in the fullest enjoyment of what is their due as a solid federal
body in a position of absolute equality with the federal Provinces of British
India..."28

The Simon Commission forcefully argued for a federal structure for India,
which was best suited for its people having diverse internal constitutions
and communities. It pointed out that the (i) size and population of India
and (ii) requirement of democracy needed federation 'since to imagine that
a constitutional structure for 45 million Indians spread over a sub-

14
continent and living in a half a million villages is unreasonable and as
India is gradually moving from autocracy to democracy, and if self-
government is to be a reality, it must be applied to political units of a
suitable size, after taking into account all relevant considerations.
Representative democracy, as it is understood in Britain depends on its
success on the possibility of a close contact betv^een elector and elected
person. Unless this is secured, it is not representation at all.' Further, the
report pointed out that the tribal areas in the North West Frontier
Province, Baluchistan and other parts of India are unique areas and the
political institution suitable to other parts of British India could not be
effectively worked in them, yet they must have their place in the general
structure. Obviously, the same constitution could not be applied to them
and any such attempt would necessarily retard political progress. ^

The Simon Commission visualized the form of Ultimate Federation for

India as thus: - "In its complete form, a federal Legislature, a Federal
Executive and federal Finance are all involved. The Federal Legislature
would have to contain representatives both of the States and of the
Provinces, and would exercise legislative powers over matters of common
concern, together with powers of imposing and spending (or at any rate of
distributing) federal taxes. The Federal Executive would be charged with
the duty of administrating federal subjects... The units of administration
would be (i) a series of Provinces with a parliamentary form of
government and with a Governor at the head of the Province; the internal
administration of the Province would be in the hands of the provincial
ministry, and each Province would have its own revenue sources and
expenditure: and (ii) a series of Indian States autonomously governed, in
their internal. They would also have their own internal system of finance
(but they would not impose custom duties at their borders). And over the
whole would be the representative of the British Crown, as Viceroy in

15
relation to the Indian States and Governor General in relation to British
India." 3°

The Simon Commission held the view that the time had not arrived then
for such a federation and the questions such as residuary powers, a federal
court acting as a balance wheel and other issues would be sorted out only
'when the impulse towards federation has gathered so much strength that
the units concerned come together to confer on the subject.' The
Commission also remarked, "We do not consider that, when the process of
federation is complete, there should be a power of intervention in purely
internal affairs of a federating unit by a representative body, but we think
that the reserve power should be in the hands of the Governor General as
representing the Crown." ^i

For immediate reference, the Commission advocated eight categories,

though not exclusive, in which the superintendence, direction and control
of the Governor General in Council over the provincial government was
desirable; (i) safeguarding the administration of central subjects, (ii)
matters affecting the interests of any other part of India, (iii) supply of
information on any subject, (iv) raising of loans, (v) placement of all India
services in the Provinces, (vi) safeguai;ding of imperial interests, (vii)
questions arising between India and other parts of the empire and
(viii)implementing international obligations. ^^ xhe Simon Commission
recommended the scraping of dyarchy on Provinces as provided in the
Act of 1919. It suggested a new institution- Council for Greater India for
the Princely States and British India for consultation on common matters.33
In advocating such a proposal, the Simon Commission reflected the British
policy in enlisting the support of autocratic princes of Indian states to
thwart the rising tide of nationalism, which by this time had become a
force, to reckon with.

16
1.4 Round Table Conferences and the Federal Idea

Federalism dominated the proceedings of round table conferences. But still

there were lot of confusions as conflicting interests and intentions obscure
any possibility of a successful conclusion. Added to this were the gigantic
communal/minority problem and the ruler's interests, which ultimately
resulted in a nexus of Princes, Muslim League and the British Goverrunent

The British Government favoured federalism in which the British

domination would continue unabated with the support of the Muslim
League and the princes and it would be able to contain Congress. The
British Prime Minister Mac Donald declared that the British Government
would devolve responsible government upon an all India federation
subject to safeguard for defence, external relation, the states, the
minorities, the services and the finance. '

Initially the Princes were inclined to join the all India federation provided
there was a responsible government at the Centre. The Maharaja of
Bikaner rejected the idea of a unitary state due to the Indian diversity. He
said, "our unity must be sought not in the dead hand of an impossible
uniformity but in an associated diversity." He desired a federal form of
government composed of the States and British India for the 'greater
prosperity and contentment of India as a whole'. The Maharaja said, "But,
speaking broadly, the Princes and States realise that an all-India
Federation is likely to prove the only satisfactory solution of India's
problem." He favoured a federation in which 'each part of which may be
autonomous and may enjoy absolute independence with its absolute
borders regulated by proper relation with the rest.'^ Nawab of Bengal
said, 'We can only federate with a self governing and federal British India.'
Sir Manu Bhai Mehta of Baroda pointed out that 'the Princes have also
made it clear... that they are prepared to enter into a Federation only with
a self-governing India, with a responsible India. They were asked whether

17
they were prepared to come into a Federation that was not fully
responsible to the people. They said they were not prepared to come into
Federation with an irresponsible Centre.'3^ The rulers in general also
desired certain safeguards. However, as the Second Round Table
Conference progressed there was a change in their attitude prompting Sir
Reginald Clancy, a member of the Secretary of the State's India Council to
suggest '...one is compelled to say there is not one genuine friend of
federation left amongst the Princes.' ^6 J h e Princes actually wanted to
protect their internal autonomy and in general were apprehensive of the
devolution set in after the Act of 1919. Tf British Indian succeeded in
getting democratic freedom. Princely India could not perpetuate
unabashed autocracy. So the Princes stepped aside hoping that the
postponement of the Federal Scheme would mean the postponement of
democratic freedom for British India.' 3''

Gandhi represented Congress in The Second Round Table Conference

while the first and second conferences were deliberated without Congress.
Gandhi demanded complete independence from the Crown, though he
knew this would not be possible even before he had left for England. In
the Second Round Table Conference he made it clear that his demand for
complete independence did not exclude federation or such safeguards as
may be demonstrably necessary in the interest of India. He reiterated the
Congress Working Committee resolution on federalism which stated that
'future constitution of the country shall be federal. The residuary powers
shall vest in the federating units unless on further examination, it is found
to be against the best interest of India'. This was a compromise between
the proposals based on undiluted communalism and undiluted
nationalism.3^ Gandhi agreed with Sir Maneckjee Dadabhoy that ' If the
federation is to come into operation, it should be full, complete, all-
absorbing federation which will need no room for doubt or difficulty. You
cannot make arrangements for a sort of partial Federation.' ^^ In a letter to

18
the Prime Minister on November 6,1931, Gandhi expressed his concern
over the reported British attempt to introduce provincial autonomy
without federation and responsible Centre which were to follow later on.
He wrote, "The needs of the present situation can be met only by a
complete and comprehensive scheme of which responsibility at the federal
Centre must be as integral a part as autonomy of the federating units. To
divide the scheme into parts and bring into immediate operation one of
the parts and postpone the other is to arouse fears of uncertainty and
suspicions of the intentions of the Government."'*o Gandhi was also clear
that, 'a strong Centre governed and administered by an alien authority,
and strong autonomy are contradictions in terms.' Therefore he demanded
that 'there should be complete responsibility transferred to India'
including defence and external affairs."*^ Thus Gandhi, though favoured
the idea of federalism but at the same time linked federalism with the
Congress demand for a complete independence in which British had no
place. He held the view that the communal and minority problem, which
led to the failure of the Round Table Conferences, were the results of the
British policy of divide and rule and he was confident that a free India
would be able to solve the problem amicably.

1.5 Muslim League and the Federal Idea

However, the Muslim leadership was not prepared to accept the Congress
line which to them was a Hindu organization, a position vehemently
refuted by the Congress which claimed to be the representative of all the
varied and diverse sections of Indian subcontinent. The fear of Hindu
domination which was attributed to a variety of factors led the Muslim
League to favour federation with complete provincial autonomy in which
the residuary powers were to be with the Provinces and functions of the
Central Government confined to such matters as were oi general and
common interests. ^2 Jinnah rejected the Nehru Committee proposal for a
strong Centre and in 1929 in his Fourteen Points, he demanded - (1) a

19
federal constitution with a uniform measure of autonomy to all the
Provinces, (2) residuary powers to be vested with the Provinces and no
change in the constitution without the concurrence of the state constituting
the federation, and (3) adequate safeguards for the protection of the
Muslims in terms of religion, representation, territorial redistribution of
the Provinces, services and local self government. ^^ Mohammed Iqbal,
another important Muslim leader pointed out that, "...in view of India's
infinite variety in climates, races, languages, creeds and social systems, the
creation of autonomous states based on unity of language, race, history,
religion and identity of economic interest, is the only possible way to
secure a stable constitutional structure in India," He supported the Simon
Commission's proposal of federation because, 'the concept of federation
under the Simon Report necessitates the abolition of the Central
Legislative Assembly as a popular Assembly and makes it an Assembly of
the representative of Federal States.'^

1.6 Political Reorganisation of India

Another aspect of the federal problem was the reorganization of the

Provinces of British India. The Muslim League wanted a 'Muslim India'
with full autonomy, which as Iqbal elaborated in 1930 meant
amalgamating Punjab, NWFP, Sindh and Baluchistan into a single Muslim
state with Muslim majority. The Nehru Committee would, however, like
reorganisation on linguistic basis. But the British view was of caution. The
Joint Select Committee of British Parliament, which was constituted, to
deliberate and report on the round table conferences pointed out, " We
have spoken of unity as perhaps the greatest gift which British rule has
conferred on India; but in transferring so many of the powers of the
government to the Provinces, and in encouraging them to develop a
vigorous and independent political life of their own, we have been
running the inevitable risk of weakening and even destroying that unity."
'•5 Therefore the architect of Indian unity would put definite limitation on
provincial autonomy and intervene in provincial affairs as and when

|b»l«M'«i^JUM«^ 20
needed. This meant special powers to the Governor as the agent of the
Centre. Yet the Joint Parliamentary Committee felt that provincial
autonomy was necessary. It commented: "The economic, geographical,
and racial differences between the Provinces on the one hand and the
sense of provincial individuality on the other, have greatly impressed us.
The vast distances of India and the increasing complexity of modern
government are strong additional arguments in favour of the completion
of the process which begun in 1919, and of a development in which the life
of each Province can find vigorous and adequate expression, free from
interference by a remote Central Government...."^^ But then there were
many problems in the way of Federation. The Committee pointed out that
there was no historical precedent for a Federation in India as the British
Indian Provinces were not even autonomous and as 'Federations have
commonly resulted from an agreement between independent or, at least,
autonomous Governments, surrendering a defined part of their
sovereignty or autonomy to a new central organism' and therefore ' we are
faced with the necessity of creating autonomous units and combining
them into a federation by one and the same act.' ^'' For this purpose, the
Committee suggested firstly, 'the resumption into the hands of the Crown
of all rights, authority and jurisdiction in and over the territories of British
India, whether they are at present vested in the Secretary of State, the
Governor-General in Council, or in the Provincial Governments and
Administrations' and secondly their distribution between the Centre and
the Provinces under an act. Thus a federation of British India Provinces
was to come about and then there was to be a voluntary participation of
the Princely States. '^^

Thus the federation that was to emerge in the 1930's was to have a weak
Centre as Muslim league and even Princess advocated, a strong Centre
with British paramountcy as British suggested and which became the law
vide the Government of India Act, 1935. The Congress, however, stood for

21
a strong Central Government independent of British control though for the
time being it had accepted a weak Centre as a compromise. Jawahar Lai
Nehru asserted the actual Congress position in 1936 as he said, " we are
not against the concept of federation. It is likely that India may be federal,
though in any event there must be a great deal of unitary control .^9

1.7 The Government of India Act, 1935

The Act of 1935 abolished dyarchy in the Provinces and introduced

federation in India. This federation consisted of eleven governor's
Provinces, six chief commissioners Provinces and the Indian states. In case
of first two the inclusion was automatic but in case of the Indian states, it
was voluntary. This was to be done by an instrument of accession in which
the powers ceded to the federation were also to be mentioned. The date of
the proclamation of federation was also dependent upon condition that
the Indian states that were entitled to fill at least half of the 104 of the seats
of the council of states and had at least 39,490,956 populations join
federation. The Act provided for three lists namely the Federal list.
Provincial List and the Concurrent List containing 59,54 and 36 items
respectively. While the Central Government and the Provincial
Governments enjoyed jurisdiction over the Federal List and the Provincial
List respectively, the supremacy of the Central Government over the
Concurrent List was ensured. Besides providing for a dual system of
government, the Act provided other requirements of a federation such as a
written and a rigid constitution (which could not be altered by both the
two governments; this power was vested in the British Parliament) and a
federal judiciary to limit both the governments at their respective fields.
However, the upper House of the Federal Assembly was not constituted
according to the established federal principle of equality of states. The
Governor General was given wide powers. As dyarchy was introduced in
the Centre, he was to act independently of his ministers with regard to the
administration of the reserved subjects. In case of the Provinces, although
responsible government was introduced by abolishing the dyarchy, the

22
Governor was given wide powers. He was to select his ministers and it
was left to his discretion to preside the meetings of the Cabinet. The
Provincial bills were to be consented by the Governor General as before.
Governor's power to assent to bills, to their reservation or to return them
to legislature was also left undisturbed. His financial powers also
remained the same. =o

1.7.1 Emergency provisions in 1935 Act

The Government of India Act, 1935 also provided for emergency in the
Centre as well as the Provinces. The justification for such provisions from
the British point of view was the apprehension that the Congress might
use the provisions of the Act to sabotage it from within, (which of course
was true), as it stood for complete independence. We quote here the
Clause 93 inter alia as this Clause was copied almost verbatim of course
along with the few changes required by the exigencies of time and
circumstances in the constitution of free India.

93-(l) If any time the Governor of a province is satisfied that a situation

has arisen in which the government of the province cannot be carried on in
accordance with the provisions of this act, he may by Proclamation -
(a) Declare that his functions shall, to such extent as may be specified in
the Proclamation, be exercised by him in his discretion;
(b) Assume to himself all or any of the powers vested in or exercisable by
any Provincial body or authority;
and any such Proclamation may contain such incidental and consequential
provisions as may appear to him to be necessary or desirable for giving
effect to the objects of the Proclamation, including provisions for
suspending in whole or in part the operation of any provisions of this Act
relating to any Provincial body or authority:

Provided that nothing in this sub section shall authorise the Governor to
assume to himself any of the powers vested in or exercisable by a High

23
 Court, or to suspend, either in whole or in part, the operation of any
provision of this Act relating to High Courts.
(2) Any such Proclamation may be revoked or varied by a subsequent
Proclamation.
(3) A proclamation under this section -
(a) Shall be communicated forthwith to the Secretary of State and
shall be laid by him before each House of Parliament;
(b) Unless it is a Proclamation revoking a previous Proclamation,
shall cease to operate at the expiration of six months:
Provided that, if and so often as a resolution approving the continuance in
force of such a Proclamation is passed by both Houses of the Parliament, the
Proclamation shall, unless revoked, continue in force for a further period of
twelve months from the date on which under this sub section it would
otherwise have ceased to operate, but no such Proclamation shall in any case
remain in force for more than three years.
(4) If the Governor, by a Proclamation under this section, assumes to
himself any power of the Provincial Legislature to make laws, any law
made by him in the exercise of that power shall, subject to the terms
thereof, continue to have effect until two years have elapsed from the
date on which the Proclamation ceases to have effect, unless sooner
repealed or re-enacted by Act of the appropriate Legislature, and any
reference in this Act to Provincial Acts, Provincial laws, or Acts or
Laws of a provincial Legislature shall be construed as including a
reference to such a law.
(5) The functions of the Governor under this section shall be exercised
by him in his discretion and no Proclamation shall be made by a
Governor under this section without the concurrence of the Governor
General in his discretion.^^

The Congress rejected the Government of India Act, 1935, as the Act did not
provide for self-government but for maintaining British rule in the new

24
political conditions. The Congress rejected it 'in its entirety.'52 Nehru was
particularly critical regarding the provisions for Indian states, which would
make the Indian feudal states permanent and also provide them with power
to interfere with the rest of India. He pointed out that the whole concept of a
union of imperialism, feudalism and democracy was incapable of realisation
and could only mean the entrenchment of all the reactionary. To him it was a
monstrous imposition on Indians that they should be saddled with feudal
relics, which prevented all growth. 53 Many demands of Muslim league were
incorporated in the act of 1935 such as NWFP was made Governor's Province
Sindh was separated from Bombay and became a Governor's Provinces, 25%
reservation in public services (though Provinces were not assigned residuary
powers as demanded by the League, which were to be exercised by the
Governor General in council). But the Muslim League opposed it as
'fundamentally bad' and 'most reactionary, retrograde, injurious and fatal to
the vital interest of British India vis-a-vis the Indian States.' ^
Undoubtedly the Government of India Act 1935 contained the essentials of a
federation namely dual system of government division of powers a written
rigid and supreme constitution and federal judiciary yet to call it a federation
would be far from truth. The Act 'formally made a break with the unitary
concept by prescribing a federal union of autonomous Provinces. Though the
Act erected the fa<;ade of a federation, it retained the essentials of a unitary
form of government.' ^^The supremacy of the British Parliament was unabated
over the Indian affairs. It alone could amend or change the Act. The Act
certainly created the federal structure in India, which was largely
incorporated into the subsequent constitution of India, but the basic federal
principle was compromised i.e. self-government at the Centre

1.8 Federalism and the Indian Politics 1937-1947

The post-Government of India Act 1935 period can be characterised as an era

of uncertainty in which the centrifugal tendencies became dominant that
created the fear of balkanisation of India. Largely this was a result of British
realisation that their days in India were numbered. Those whc3 claimed to be

25
the architect of Indian unity now had lost all interest in maintaining that
unity. The Cripps Mission in 1942 even accorded the freedom to the Provinces
of joining the new federation. The Princess were also told that after the
transfer of power the British paramountcy would lapse and they were free to
decide their political future. The Muslim League now was determined to have
an independent Muslim state of Pakistan on the basis of two-nation theory
and the Congress was also increasingly inclined to accept it. The Congress
Working Committee declared that it could not think in terms of compelling
the people in any territorial unit to remain in an Indian union against their
declared and established will.^^ The change in Congress attitude could also be
seen in its acceptance of Cabinet Mission Plan which provided for 'a Union of
India embracing both British India and states which should deal with the
following subjects: Foreign Affairs, defence, and communications and should
have the powers necessary to raise the finances required for the above
subjects.' ='' The Plan envisaged a Constituent Assembly for India to formulate
its constitution. The Muslim League also accepted the Cabinet Mission Plan
but later on boycotted the Constituent Assembly and decided to have
Pakistan by direct action.

Ultimately India was partitioned under the Indian Independence act of 1947
and two new dominions of India and Pakistan were created. The Princely
States were to join any of the two dominions. However, thanks to the sagacity
of Lord Mountbatten, the Viceroy of India, the statesmanship of Sardar Patel
and his Lieutenant V.P. Menon, all the Princely states except Hyderabad,
Junagarh and Kashmir merged with Indian dominion in 1947.

India's struggle for freedom from 1920 onward is thus intrinsically connected
with the reorganisation of the Indian polity on federal lines in which the
principle actors were British, Princely States, Congress and Muslim League.
The acute divergence of interest could not give birth to a federation satisfying
all and ultimately led to the Partition which is unparalleled in history in terms

26
of migration of such a large number of people in such a short time and
ferocity and brutality which resulted in millions of people being uprooted or
killed for which the blame lie on all the principle actors. However, the
Partition also ensured that Congress could proceed for a federation with a
strong Centre, an idea that Congress had long cherished especially after the
Nehru Report.

1.9 Constituent Assembly and the Federal India

As discussed above, the Constituent Assembly was created under the Cabinet
Mission's Plan which provided for a weak Centre vested with foreign affairs,
defence communication and powers necessary to raise finances for the above
mentioned subjects. Initially, the working of the Constituent Assembly was
towards these directions though the meaning of these subjects were expanded
by the doctrine of implied, inherent and resultant powers in such a way so as
to increase the powers of the Central Government. The situation underwent a
fundamental change with the announcement of Partition and independence
of India on June 3 1947, as a result of which the Constituent Assembly became
sovereign in drafting the Constitution and all the limitations over its scope
imposed by the Cabinet Mission's Plan were now no longer valid.

With the removal of Muslim League from India, which could be a major
centrifugal force, the Constituent Assembly, now, was totally dominated by
the Congress under the leadership of Jawahar Lai Nehru, Sardar Patel,
Rajendra Prasad and Maulana Azad. (Austin called them as constituting an
Oligarchy within Constituent Assembly) ^Swho stood for a strong Centre. The
Union Constitution Committee took the following tentative decisions on June
6 1947; - (i) that the constitution should be federal structure with a strong
Centre, (ii) that there should be three exhaustive legislative lists viz. federal,
provincial and concurrent with residuary powers for the Centre, (iii) that the
Indian states should be on par with the Provinces as regards the Federal
Legislative List, subject to the consideration of any special matter, which
might be raised when the lists were fully prepared and (iv)that as a general

27
principle, the executive authority of the Federation should be co-extensive
with its legislative authority.59 The Second Report of the Union Powers
Committee frankly and specifically enumerated the reasons for acceptance of
a federation with a strong Centre as thus: "The severe limitation on the scope
of the central authority in the Cabinet Mission's Plan was a compromise
accepted by the Assembly much, we think, against its judgement of the
administrative needs of the country, in order to accommodate the Muslim
League. Now that partition is settled fact, we are unanimously of the view
that it would be injurious to the interests of the country to provide for a weak
central authority, which would be incapable of ensuring peace, of
coordinating vital matters of common concern and of speaking effectively for
the whole country in the international sphere. At the same time, we are quite
clear in our minds that there are many matters in which authority must be
solely with the unit and that to frame a constitution on the basis of a unitary
state would be a retrograde step both politically and administratively. We
have accordingly come to the conclusion- a conclusion which was also
reached by the Union Constitution Committee - that the soundest framework
for our constitution is a Federation with a strong Centre." ^^

The Second Report also drafted three exhaustive list on the lines followed in
the Government of India Act of 1935 in which the Federal List contained 87
items, the Provincial Legislative List 58 items and the Concurrent List 36
items. 6^ The residuary powers were vested with the Centre. Gopalaswami
Ayyenger while moving the resolution to consider the Second Report in the
Constituent Assembly, rightly said, "I think if honourable members would
scrutinize these lists and compare them with the lists in the Act of 1935, it
would be difficult for them to find - perhaps with one or two stray
exceptions- any cases where we have encroached upon the sphere assigned to
the Provinces by that Act.... We have cut up a number of items in the Federal
List into separate items and that is one reason why the number has increased
so much. In other cases we have adopted certain items from other

28
constitutions which we did not find in the Government of India Act, but none
of these are in the opinion of the committee of such a character that they
should necessarily go either in the Provincial or Concurrent List/'^^jhe
Second Report of the Union Powers Committee also set in a process of vesting
more and more powers with the Centre which was almost completed with the
Draft Constitution moved by Dr Ambedkar in the Constituent Assembly, the
remaining task was accomplished in the further deliberations on the Draft
Constitution.

1.9.1 India-a Union of States

The Draft Constitution made an important change in the nomenclature of the

country. India was dubbed as a Union of States instead of federation as had
been the practice. Hitherto all documents including the draft constitution
submitted by B. N. Rao had described India as a federation. ^3 Dr. Ambedkar
had the following explanation with regard to this change: -"Nothing much
turns on the name, but the Committee has preferred to follow the language of
the Preamble to the British North America Act, 1867, and considered that
there are advantages in describing India as a Union although its constitution
may be federal in structure." ^ In the Constituent Assembly, he justified the
change by the argument that the change was deliberate and to make it clear
'that though India was to be a federation, the Federation was not the result of
an agreement by the States to join in a Federation and that the Federation not
being the result of an agreement, no State has the right to secede from it. The
Federation is a union because it is indestructible. Though the country and the
people may be divided into different States for convenience of administration,
the country is an integral whole, its people a single people living under a
single imperium derived from a single source. The Americans had to wage a
civil war to establish that the States have no right of secession and that their
Federation was indestructible. The Drafting Committee thought that it was
better to make it clear at the outset rather than to leave it to speculation or to
dispute.'^5

29
Dr. Ambedkar also asserted that the Draft Constitution was federal. He
pointed out that 'a Federal Constitution is marked- (I) by the existence of a
Central polity and subsidiary polities side by side and (2) by each being a
sovereign in the field assigned to it. In other words, Federation means the
establishment of a Dual Polity. The Draft Constitution is, Federal Constitution
inasmuch as it establishes what may be called a Dual Polity.' ^6

Dr Ambedkar also opined that federalism had two inherent weaknesses of

rigidity and legalism. He, however, felt that adequate protections had been
incorporated in the Constitution to remove those weaknesses. He also drew
the attention of the members towards the growing trend of centralisation
among the federal constitutions. Talking about the American Constitution, he
said, 'one has to only consider the growth of the Federal Constitution in the
USA, which, notwithstanding the very limited powers given to it by the
Constitution, has outgrown its former self, and has overshadowed and
eclipsed the State Governments. This is due to modern conditions. The same
conditions are sure to operate on the Government of India and nothing that
one can do will help to prevent it from being strong.' He, however, felt that
the tendency to make the Centre stronger should be resisted as, 'it cannot
chew more than it can digest. It strength must be commensurate with its
weight. It would be a folly to make it to so strong that it would fall by its own
weight.' ^^

But definitely there was an element of flexibility in the Draft Constitution. Dr.
Ambedkar pointed out that there was a difference between the Draft
Constitution, on the one hand and other Constitutions including that of
America. While other federal systems were placed in a tight mould of
federalism and they could not change their form and shape, the Draft
Constitution could be both unitary as well as federal according the
requirements of time and circumstances. In normal times, the Constitution
was to work as a federal constitution but in times of war it was 'so designed

30
so as to make it work as though it was a unitary system. Once the President
issues a Proclamation, which he is authorised to do under the provisions of
Article 275 (which later on became Article 352), the whole scene can become
transformed and the State becomes a unitary state.... Such a power of
converting itself into a unitary state no federation possesses.' ^*

1.9.2 Discussions in Constituent Assembly

The majority of the members in the Constituent Assembly favoured a strong

Centre. G.L Mehta felt that only a strong Centre could build up adequate
political autonomy and decentralization. He also supported a strong Centre
based on economic development and welfare. He pointed out that, " ...
economic forces and strategic considerations today tend to invest the Centre
with large powers. If we want to organize economic development and social
welfare as people organize for war, then the state of the future have to be a
'positive' state, it will have to be a social service state. It will require large
finances and more or less homogenous economic conditions will have to
maintain in order to achieve these purposes." He also stressed the need of
public health to be included in the concurrent list because there were
innumerable diseases in the country. ^^ For T.T. Krishnacharya also the social
welfare was the reason to make the Centre strong. He wanted a strong Centre
to improve the economy of the common man.^o However, Pandit Hira lal
Shastri favoured a strong Central government because 'if the central
government is weak there will be no peace in the country. Maintaining the
peace in the country is the greatest of all tasks.' ''^

Frank Anthony's argument for a strong Centre was based on the nature of
the Indian polity. He defended the Draft Constitution on the plea of divergent
and disintegrative potential which was inherent in the country's vastness. He
felt that 'the maximum possible powers that can be given to the Centre must
be given to the Centre in the interests of the integrity and cohesion of the
nation.'72 j^g aigg demanded that police education and health should be
given to the Centre. Pandit Lakshmikant Maitra, while maintaining that the

31
Provincial autonomy should not be ruthlessly curtailed found centrifugal and
fissiparous tendencies generated by the provincial autonomy under the
Government of India Act 1935 and hence advocated a strong Centre with
ample powers so that all the component units could be held together and be
cohesive. He favoured a strong Centre also, to preserve or to maintain our
newborn freedom and solidarity of the country. '^3

Certain members advocated a strong Centre from the historical point of view
Pundit Bal Krishan Sharma justified the need of a strong Centre based on our
historical tendency, 'of various limbs to break off from the body politic' which
he also called a chronic illness from which the country had been suffering for
centuries and if unguarded, we were likely to come to grief. "Therefore I say
that these friends and critics, who think that the Centre which has been given
certain powers to meet certain emergencies is likely to abuse those powers,
are trying to cry 'wolf, wolf before actually the wolf comes to their
doors."^'*Suresh Chandra Majumdar and K M Munshi supported him.
Majumdar said, "Among the many lessons with which our history is replete,
there is one which in my opinion should command our utmost attention as
we are engaged in settling the forms of our State and Government. It is this
that throughout history our finest glories in whatever field they might be
were achieved precisely during those periods when India, striving towards
political cohesion was most successful and such cohesion always pre-
supposed a strong unifying Central authority." ''^ K. M. Munshi pointed out
that the glorious days of India were only the days when there was a strong
central authority and the most tragic days were when the central authority in
the country was dismembered by the Provinces trying to resist it. ''^

Alladi Krishnaswami Ayyar who was also a member of the Drafting

Committee defended a strong federal Government on economic and defence
considerations. He pointed out, " In view of the complexity and financial
conditions in the modern world and the need for large scale defence

32
programmes, there is an inevitable tendency in every federation in the
direction of strengthening the federal Government. The Draft Constitution in
several of its provision has taken note of these instead of leaving it to the
Supreme Court to strengthen the Centre by a process of judicial
interpretation."''''

However, the decision to adopt a strong Central Government was not

unanimous. Many members did not appreciate the idea. Maulana Hasrat
Mohani was very sharp and agitated in his views. He complained that the
rights and powers of the Provinces were being curtailed which they had been
enjoying before independence. He pointed out that the demand for a strong
Centre was justified till Pakistan was not separated since there was an
apprehension of trouble from the Muslim majority Provinces, but after the
separation of Pakistan, there was no need for such a strong Centre. According
to Maulana, Aurangjeb wanted to build up unitary Mughal empire and lost
his kingdom, ' if he had not done that, he would not have lost the kingdom.
Do not think it is easy to form a single unitary government by coercing each
and all into your fold that cannot last...we regard the constitution framed by
you worthy of being consigned to the waste paper basket.' ''''Another member
Mahomad Sheriff was equally sharp "we have uprooted British. Let not that
imperialism be perpetuated in another form." He felt that the Centre should
not be jealous of the component parts as the people living in the States and
Provinces were part of the whole. He requested the House 'to see that the
Centre does not arrogate to itself all the powers but that there is an equitable
and happy compromise in the distribution of powers between the Centre and
the units.'7^ Professor N.G.Ranga felt that in any case, the Centre was going to
be strong due to the modern industrial development and economic
conditions. Therefore, it was 'superfluous and indeed dangerous to proceed
with the initial effort to make the Centre specifically strong.' He also felt that a
strong Centre ultimately meant as strong Central Secretariat. He said, "From
the chaprasi or the duffadari at the Central Secretariat to the Secretary there.

33
each of them will consider himself to be a much more important person than
the Premier of a Province and the Prime Ministers of the Provinces would be
obliged to go about from office to office at the Centre in order to get any sort
of attention at all from the Centre...Under the circumstances, it is highly
dangerous indeed to enslave these Provincial Governments and place them at
the mercy of the Central Secretariat and the Central bureaucracy." ^

K Santhanam protested against the division of powers between the Centre

and the State, which he felt, had led to a position where there was a unitary
Centre which was trying to hand over certain powers to the States. In fact,
Santhanam tried to be the most logical and coherent proponent of state
autonomy when he pointed out, "I do not want that the Central Government
should be made responsible for everything. The initial responsibility for the
well being of the people of the Province should rest with the Provincial
Government. It is only in strictly all-India matters that the Central
Government should have responsibility and should come into play.
Therefore, the strength of the Centre consists not only in adequate powers in
all-India subjects but freedom from responsibility for those subjects which are
not germane to all-India but which really should be in the Provincial field."
On financial distribution of power between the Centre and the State,
Santhanam said, " I do not want any constitution in which the unit has to say
to the Centre - that I cannot educate my people. I cannot give sanitation; give
me a dole for the improvement of roads, for industries, for primary
education." Santhanam was highly critical of concurrent list, which he
wanted to be restricted to the minimum. He said that "... it is an inevitable
political tendency of all federal constitutions that the federal list grows and
the concurrent list fades out because once when the central legislature takes
jurisdiction over a particular field of legislation, the jurisdiction of Provincial
legislature goes out. Therefore, we may take it that in ten years or 15 years of
time, entire concurrent list would be transferred to the federal list."
Santhanam also predicted that the Provinces would revolt against the Centre

34
unless the distribution of powers was not properly adjusted. He said, "Let us
not give all the powers to the Centre. Let the Units also have some work,
some responsibilities and some resources. Unless we do this, our Constitution
will break down. This is a warning I wish to utter". ^^

Many members were not satisfied with the financial arrangement between the
Centre and the State. Among them. Sir A. Ramaswamy Mudaliar objected to
the division of taxes. He pointed out that the nation building activities were
the unit's responsibility and the units lacked enough taxing power. ^^
R.Sankar who represented Travancore State stated that 45 percent of his State
income came from the taxes like income tax and custom duties, which were
now given to the Centre. ^3

Shri Lokanath Mishra criticised the Draft Constitution on the ground that it
was 'laying the foundation more for a formidably unitary state than a federal
one'. He wanted to know the reasons for having a strong Centre. Was the
strong Centre needed against Pakistan, Russia or the people of India? He tried
to be prophetic when he said, " But if by taking so much powers into the
hands of the President or Ministers, or the central oligarchy, we want to unite
India, I am sure India will either break or it will be another menace to us and
all." He further pointed out that he was 'wholly against a very strong Centre
in the sense that the Government will be so strong, though not dictatorial or
oligarchic that the Provinces will lose all importance, all initiative and drive.'^
Professor K.T.Shah welcomed the strong Centre but he did not want the
provincial autonomy to be curtailed. ^^ Many members expressed similar
reactions. Mehboob Ali Baig Sahib Bahadur complained that the Constitution
provided for a 'glorified district boards.'^6 K.Hanumanthaiya, argued that the
Draft Constitution made the Indian Union a Unitary State and not a federal
State. 'In their anxiety to make the Centre strong, they have given too much
legislative and financial powers to the Centre, and have treated the Provinces
and States, as though they were mere districts of a province'. He also

35
observed, "It practically makes the Indian Union a unitary state and not a
federal state." ^7 P.S.Deshmukh felt that the Constitution was neither unitary
nor federal. It was unitary 'because provincial autonomy of a sort will
continue; it is not federal because there is no freedom allowed to any of the
units to any substantial degree.' ^^ Mohammed Ismail Sahib expressed his
displeasure against the unitary nature of the state that in his view was not
conducive to the 'happiness and prosperity of the country.' He said, " I say
that the federal system is more suited to the conditions of our country than
the unitary type."89Another member, Lai Krishnaswami calculated that the
Draft Constitution provided for 75 percent unitary and 25 percent federation.
He also founds the tendencies to overburden the Centre and towards over
centralization, ^o Arun Chandra Guha pointed out that having a strong Centre
did not mean that its limbs should be weak. Guha stressed the importance of
panchayati raj and said, " If we can build the whole structure on the village
panchayats, on the willing co-operation of the people, then I feel the Centre
would automatically become strong." ^i

1.9.3 Support for a Unitary State

The Constituent Assembly also had a few members who were against
federation and wanted a unitary state. Among them Sardar K.M.Panikkar in a
note to the Union Powers Committee pleaded the ' the basic principles of the
constitution should be a unitary one with large devolution of powers to the
Provinces...' He pointed out, " The demarcation of Union and Provincial
powers which federalism involves, is to my mind a dead issue, and the idea
which has gained prevalence that the Indian Constitution must be of federal
type is definitely dangerous to the strength, prosperity and welfare of India."
He accused federalism of being a fair-weather constitution, which in the
Indian circumstances could be dangerous. It might leave the national
government with limited powers and it might prove incapable in dealing with
the national problems. He further noted, "The American example is totally
inapplicable to our circumstances as the United States of America has a
hundred years of peaceful development to enable it to build up a strong

36
Centre." ^^ In another note, Sardar Panikkar pointed out that due to modern
developments in warfare, the war had become total and thus there is a need
for total defence. He wrote, "So with the total defence to face, and with but a
weak and insecure national integration with which to face it, we shall be
courting disaster, if we now create a Centre limited by legalism and cramped
by the indefeasible rights of Provincial units." ^^ Sardar Panikar did not carry
on his attack against federalism in the Constituent Assembly, which was done
by Brajeshwar Prasad who was against both federalism and democracy. He
felt that 'federalism will lead to establishment of innumerable Pakistans in the
sub-continent' According to him, federalism was unsuited to the modern
times in view of the concept of the world state, the fear of the third world war
and the needs of economic development. Referring to Dr. Ambedkar's speech
in which he termed the Indian Constitution as federal in peace times and
unitary in war, Prasad said that the distinction between peace and war had
become fictitious in the wake of Cold War.^'*

The preceding paragraphs clearly indicates that the prevailing political,

economic and social conditions resulting from the Independence and the
Partition created an environment that helped in creating a consensus in
favour a of a strong Centre. The communal riots, rehabilitation of refugees
from Pakistan and economic crises enforced the feelings that only a strong
Centre could work to effectively face them. A possible rebel could be expected
from the Princes who had acceded to the dominion of India based on Cabinet
Mission Plan, which had vested with them a large amount of autonomy. But
the events after August 15, 1947 moved very fast and the merger and
integration of the States were effected in a rapid evolutionary manner and by
the time the Constitution of free India became operational, they had become
one with the Indian polity. However, the very fact of their existence and their
merger into the Indian Union, which was subject to the Cabinet Mission Plan,
necessitated federalism as the only alternative. There was no other road
except federalism for the future polity of India. Further, there was a legacy of

37
provincial autonomy under the Government of India Act, 1935 and many
powerful leaders like G.B. Pant and B.G,Kher had experienced the operation
of provincial political power and hence were averse to the unitary system. It
was also felt that all the advantages claimed for a unitary system could be
secured if the Constitution provided for federation with a strong Centre. It
was this background, which prompted the Union Powers Committee in its
Second Report to view the unitary state as a retrograde, step both politically
and administratively. Coupled with these considerations were the Indian
domestic needs and the prevailing international situation. The centralising
tendencies witnessed in all the federations complimented these
considerations. As a result, the protagonists of the state autonomy lost their
importance and there was a tremendous support in favour of a federation
with a strong Centre.

The support for a strong Centre was especially exhibited by the members of
the Constituent Assembly while discussing the emergency provisions
including Article 356, which is the subject matter of the next chapter.

38
 Notes and References
1 K.C.Wheare, Federal Government, (London: English Language Book Society, 1968) p.lO
2 James Bryce, The American Commonwealth, VoI.I, (New York, Macmillan 1914), p.318
3 Herman Finer, Theory and Practice of Modern Government, (Delhi, Surjeet Pubhshers,
1961), p.l64
4 Wheare op.cit.p-2. The Tenth Amendment to the American Constitution says that'
the powers not delegated to the United States by the Constitution, nor prohibited by
it to the states are reserved to the states respectively or to the people'.
5/ Michael Burgess & Ganon Alain (Ed.s) Canadian Federalism: Past. Present and Future,
(Leicester, Leicester University Press, 1990), p.205
6/ Charlie Jeffery and Peter Savigear (ed s), German Federalism Today, (Leicester,
Leicester University Press, 1991), p. IX
7 Wheare, Ibid, p.44
8 Ibid, p.37
9 Ibid, p.42
10 The Governor General was told by the Courts of Directors that the 'whole civil and
military government is in your hands, and for what is good or evil in the
administering of it, the honour or dishonour will rebound on you'. See
M.Venkatarangaiya & M. Shiviah, Indian Federalism, (Delhi, Arnold-Heinemann, 1975)
p.l4
11/ B.B.Mishra, The Unification and Division of India, (Delhi, Oxford University Press, 1990)
p.39
12 Quoted in M.Venkatarangaiya & M. Shiviah, op. cit., p.17
13 The Secretary of State Sir Charles Wood pointed out that the object of Indian Councils
Act, 1861 was to have 'more convenient transaction of business.' He wrote, "There is
nothing in the provision of a nature to detract from the authority or responsibility of
the Governor-General or the Council." A.C Banerjee Indian Constitutional Documents
Vol. II, (Calcutta A.Mukherjee & Co. 1948) p.30
14 B.B.Mishra op. cit.p.209
15 M. Venkatarangaiya & M.Shiviah, op.cit. p.22
16 C.H.Philiphs, The Evolution of India and Pakistan 1858-1947 Select Documents, (Delhi,
Oxford University Press, 1965) p.273
17 Simon Commission Report, Vol.11, (Delhi, LOGOS Press, reprint 1988), p.9
18 B.Shiva Rao The Framing of India's Constitution, Vol. I, (Delhi, The Indian Institute of
Public Administration 1966), pp 43-50
19 Ibid, pp.51-52
20 The Nehru Report An Anti-Separatist Manifesto, (Delhi, Michiko & Panjathan reprint
1975), pp 130-32
21 Ibid, pp 127-29
22 Ibid, item 5, p.130
23 Ibid, item 46, p.l29
24 Ibid, p.l88
25 Ibid, p.l80
26 Ibid, p.l63
27 Ibid, pp 163-64
28 Simon Commission Report, Vol. I p.44
29 Ibid, Vol. II pp.14-15
30 Ibid, pp 198-200
31 Ibid, p.200
32 Ibid, p. 151
33 Ibid, pp 205-6

39
34 A.K.Banerjee, op.cit. Vol. Ill pp 457-461
35 Ibid, pp 416-63
36 R.J.Moore, T/K Crisis of Indian Unity 1917-1940,{ Delhi, Oxford University Press,1974)
p.231
37 A.C.Banerjee op. cit. Vol. Ill pp xviii-xix
38 Ibid, p.209 In the Gandhi-Irwin Pact also federalism was discussed. It was specifically
mentioned that Federalism was an essential part of the Constitutional questions but
'so also are Indian responsibihty and reservations or safeguards in the interests of
India, for such matters as, for instance, defence; external affairs; the position of
minorities; the financial credit of India, and the discharge of obligations.' C.H.Philips
op.cit.p.241
39 The Collected Works ofMahatma Gandhi Vol.XLVIII, (Delhi, Publication Division, 1971)
p.l55
40 Ibid, pp 271-72. Earlier, on October 23,1931 also, Gandhi said in the Federal Structure
Committee meeting that'India desires complete independence...' See p.216
41 Ibid, pp.303-310
42 C.H.Philips op. cit. Resolution of Muslim League, January 1,1929 p.234-35
43 Ibid, pp 235-37
44 Ibid, Muhammad Iqbal's Presidential Address at the Allahabad Session of Mushm
League pp.239-41
45 A.C.Banerjee, op.cit, p.213
46 Ibid, p.222
47 Ibid, p.214
48 Ibid, pp.219-20
49 Maurice Gwyer and A.Appadorai, Speeches and Documents on the Indian
ConsHtution, 1921-1947 (London, George Allen & Unwin Ltd., 1957) p.387
50 A.C.Banerjee, op.cit. see for extracts of 1935 Act, pp 262-320
51 Ibid,, pp 289-90
52 See Congress Resolution on the Government of India Act, 1935 in B.Shiva Rao, op. cit.
Vol. I p.80
53 Dorothy Norman, Nehru, The First Sixty Years, Vol. I, (Bombay, Asia Publishing
House), pp365-66
54 See Muslim League's Resolution April 11-12 1936 in A.C.Banerjee, op. cit., pp.384-86
55 Asok Chanda, Federalism in India, (Delhi, George Allen & Unwin Ltd., 1965) pp.19-20
56 See Congress Resolution on United India and Self-Determination in B.Shiva Rao,
op.cit. Vol. I pp.147-48
57 B.Shiva Rao, op.cit., p.213
58 Granvile Austin, India's Constitution, A Comer Stone of a Nation, (Bombay, Oxford
University Press, 1972) p.21
59 B.Shiva Rao, op. cit., the Framing of India's Constitution, Select Documents II p.553-54
60 Ibid, p.776
61 Ibid, pp777-795
62 Constitution Assembly Debates (herein after referred to as CAD) Vol.V p.39
63 The Article 1 of the Memorandum on the Indian Constitution of the Union
Constitution Committee had a note: -' The structure proposed to be established by
this Constitution being federal in character, the term Federation has been used.' CAD
Vol. IV p.717
64 B.Shiva Rao, The Framing of India's Constitution, Vol.Ill, p . 5 n
65 CAD Vol. VII, p.43
66 Ibid, p.33
67 Ibid, p.42
68 CAD Vol. Vn, p.34
69 CAD Vol. V, p.78
70 CAD Vol. VII, pp.231-235
71 CAD Vol. v n , p.90
72 CAD Vol. v n , p.227

40
73 CAD Vol. VII, p.274
74 CAD Vol. V, pp73-79
75 CAD Vol. VII, p.377
76 Ibid, p.927
n CAD Vol. VII, p.335
78 CAD Vol. V, p.42-43
79 CAD Vol. V, pp69-70
80 CAD Vol. VII, p.350
81 CAD Vol. V, pp54-56
82 Ibid, pp.80-82
83 CAD Vol. VII, p.346
84 CAD Vol. VII, p.242
85 Ibid, p.244-46
86 CAD Vol. VII, p.295-97
87 Ibid, pp 338-40
88 Ibid, pp 250-52
89 Ibid, p.330
90 Ibid, p.365
91 Ibid, p.256
92 B.Shiva Rao op.cit.. Vol. II, pp533-38
93 Ibid, pp. 539-40
94 CAD Vol. VII, pp. 371

41