NATIONAL LAW UNIVERSITY, JODHPUR

CONSTITUTIONAL GOVERNANCE-II

ASSIGNMENT TOWARDS FULFILLMENT OF CONTINUOUS

ASSESSMENT

ESSENTIALS OF FEDERALISM

SUBMITTED TO: SUBMITTED BY:PROF. K.L. BHATIA DIGVIJAY SINGH

1058 BBA.LLB(hons.) IV SEMESTER

ContentsINTRODUCTION......................................................................................................................3FEDERAL FEATURES.............................................................................................................3CENTRE – STATE RELATIONS.............................................................................................4FINANCE COMMISSION........................................................................................................6CO- OPERATIVE FEDERALISM............................................................................................6POST KESAVANANDA VERDICT:.......................................................................................7THE KESAVANANDA VERDICT:.........................................................................................7CONCLUSION..........................................................................................................................9

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INTRODUCTION

Federalism is the largest stage in the evolution of man in understanding one another and

learning to live together by accommodating another’s point of view without forgetting or

compromising his own goal in a peaceful and orderly manner. Federalism is the pointed

indicator of the fact that concept avows “unity in diversity”.

The Constitution provides a federal system of government in the country even though it

describes India as ‘a Union of States’. The term implies that firstly, the Indian federation is

not the result of an agreement between independent units, and secondly, the units of Indian

federation cannot leave the federation. The Indian Constitution contains both federal and non-

federal features.

FEDERAL FEATURES

The federal features of the Constitution include:

(1) A written constitution which defines the structure, organization and powers of the central

as well as state governments

(2) A rigid constitution which can be amended only with the consent of the states.

(3) An independent judiciary which acts as the guardian of the constitution.

(4) A clear division of powers between the Center and the States through three lists- Union

list, State list and Concurrent list.

(5) The creation of an Upper House (Rajya Sabha) which gives representation to the states.

For the above reason we mention that the Indian constitution is Federal in nature 1 but Indian

Constitution India is often described as a ‘quasi-federal ‘country.

It may be that the Centre has been assigned a larger role than the states but that by itself does

1 V.N.Shukla, Constitution of India, 1969 p.40

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not detract from the federal nature and more power is given to the Centre.2

CENTRE – STATE RELATIONS

Relations between the Union and States can be studied under the following heads:-

(a) Legislative Relations- The Constitution divides legislative authority between the Union

and the States in three lists- the Union List, the State List and the Concurrent List. The Union

Parliament has exclusive authority to frame laws on subjects enumerated in the Union list.

These include foreign affairs, defense, armed forces, communications, posts and

telegraph, foreign trade etc. The State list consists of subjects on which ordinarily the States

alone can make laws. These include public order, police, administration of justice, prison,

local governments, agriculture etc. The Concurrent list comprises of items including criminal

and civil procedure, marriage and divorce, economic and special planning trade unions,

electricity, newspapers, books, education, population control and family planning etc. Both

the Parliament and the State legislatures can make laws on subjects given in the Concurrent

list, but the Centre has a prior and supreme claim to legislate on current subjects. In case of

conflict between the law of the State and Union law on a subject in the Concurrent list, the

law of the Parliament prevails. Residuary powers rest with the Union government. Parliament

can also legislate on subjects in the State list if the Rajya Sabha passes a resolution by two-

third majority that it is necessary to do so in the national interest. During times of emergency,

Parliament can make laws on subjects in the State List. Under Article 356 relating to the

failure of constitutional machinery in the state, Parliament can take over the legislative

authority of the state. Likewise, for the implementation of international treaties or

agreements, Parliament can legislate on state subjects. Finally, Parliament can make laws on

subjects in the State list if two or more states make a joint request to it to do so. Thus, the

Centre enjoys more extensive powers than the states.2 M.P.Jain, Indian Constitutional Law, 3rd edn. 1978 p.347

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(b) Administrative relations- The Indian Constitution is based on the principle that the

executive power is co-extensive with legislative power, which means that the Union

executive/the state executive can deal with all matters on which Parliament/state legislature

can legislate. The executive power over subjects in the Concurrent list is also exercised by the

states unless the Union government decides to do so. The Centre can issue directives to the

state to ensure compliance with the laws made by Parliament for construction and

maintenance of the means of communications declared to be of national or military

importance, on the measures to be adopted for protection of the railways, for the welfare of

the scheduled tribes and for providing facilities for instruction in mother tongue at primary

stage to linguistic minorities. The Centre acquires control over states through All India

Services, grants- in- aid and the fact that the Parliament can alone adjudicate in inter- state

river disputes. During a proclamation of national emergency as well as emergency due to the

failure of constitutional machinery in a state the Union government assumes all the executive

powers of the state.

(c) Financial Relations – Both the Union government and the states have been provided with

independent sources of revenue by the Constitution. Parliament can levy taxes on the subjects

included in the Union list. The states can levy taxes on the subjects in the state list.

Ordinarily, there are no taxes on the subjects in the Concurrent List. In the financial sphere

also the States are greatly dependent on the Centre for finances. The Centre can

exercise control over state finances through the Comptroller and Auditor General of India and

grants. but during financial emergency the President has the power to suspend the provision

regarding division of taxes between the centre and the states. 

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FINANCE COMMISSION 

One of the instruments which the Constitution has evolved for the purpose of distributing

financial resources between the Centre and the states is the Finance Commission. The

Finance Commission according to Article 280 of the Constitution is constituted by the

President once every five year and is a high- power body. The duty of the Commission is to

make recommendations to the President as to: (a) the distribution between the union and the

states of the net proceeds of the taxes which are to be divided between them and the

allocation between the states themselves of the respective share of such proceeds; (b) the

principles which should govern the grants-in-aid of the revenues amongst the states out of the

Consolidated Fund of India.

CO- OPERATIVE FEDERALISM

The Indian Constitution provides for a number of mechanisms to promote co-operative

federalism. Article 263 empowers the President to establish Inter-State Council to promote

better co-ordination between the Centre and States. 

Inter -State Council was formally constituted in 1990. It is headed by the Prime Minister

and includes six Cabinet ministers of the Union and Chief Ministers of all the states and

union territories.

Zonal Councils were set up under the State Re-organization Act, 1956, to ensure greater

cooperation amongst states in the field of planning and other matters of national importance.

The act divided the country into six zones and provided a Zonal Council in each zone. Each

council consists of the Chief Minister and two other ministers of each of the states in the zone

and the administrator in the case of the union territory. The Union Home Minister has been

nominated to be the common chairman of all the zonal councils. 

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POST KESAVANANDA VERDICT:

The matter of the Doctrine of basic Structure again came up in the Supreme Court in Indira

Nehru Gandhi v. Raj Narain3.In this case for the 1st time a constitutional amendment was

challenged not in respect of rights of property or social welfare but with reference to an

electoral law designed to ensure freeand fair elections which lie at the basis of a democratic

parliamentary form of government.4 Here the 39thConstitutional Amendment was challenged.

Counsel for Raj Narain, the political opponent challenging Mrs. Gandhi's election, argued

that the amendment was against the basic structure of the Constitution as it affected the

conduct of free and fair elections and the power of judicial review. Counsel also argued that

Parliament was not competent to use its constituent power for validating an election that was

declared void by the High Court.

Four out of five judges on the bench upheld the Thirty-ninth amendment, but only after

striking down that part which sought to curb the power of the judiciary to adjudicate in the

current election dispute. One judge, Beg, J. upheld the amendment in its entirety. Mrs.

Gandhi's election was declared valid on the basis of the amended election laws. The judges

grudgingly accepted Parliament's power to pass laws that have a retrospective effect.5

THE KESAVANANDA VERDICT:

The Supreme Court declared in Kesavananda Bharati v. State of Kerala6 that Article 368 did

not enable the Parliament to alter the basic structure of framework of the constitution. The

judgment was ground shattering. It was a revolutionary step in the history of Constitutional

Law. Subsequently, the Supreme Court of Bangladesh adopted the doctrine of basic structure

relying on Kesavanada Bharati case. In Pakistan the Lahore High Court and the Baluchistan

3 Indira Nehru Gandhi v. Raj Narain, AIR 1975 SCC 22994 Bhatia, K. Sukhcharan, Jurisprudence of Amending Process under Indian Constitution, Deep & Deep publications, Delhi, 1989 pg 2085 Golak Nath v.State of Punjab, (1967) 2 SCR 762: AIR 1967 SC6 Kesavananda Bharati v. State of Kerala, AIR 1973SC 1461

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High Court took the same view but not the Supreme Court. The judgment also had an

effecton the Nepal Constitution.7 For the first time, the Doctrine of Basic Structure was

specifically mentioned in this case.

The validity of the 24th and the 25th amendment was challenged in this case and the matter

was heard by a bench of 13 judges. And the Court held that “Our Constitution is not a mere

political document. It is essentially a social document. It is based on a social philosophy and

every social philospphy like every religion has two main features, namely, basic and

circumstantial. The former remains constant but the latter is subject to change. The core of a

religion always remains constant but the practices associated with it may change. Likewise, a

constitution like ours contains certain features which are so essential that they cannot be

changed or destroyed.”8

7 Supra Note 68 Supra Note 6

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CONCLUSION

Dr. B.R. Ambedkar, one of the chief-architects of the Indian Const-said: “Our constitution

would be both Unitary as well as Federal according to the requirements of time &

circumstances.In historical as well as present context, the above statement is fully correct

because: federalism is not static but a dynamic concept” it is always in the process of

evolution & constant adjustments from time to time in the light of the contemporary needs

the demands being made on it. Constant discussions & negotiations between the centre & the

states in various for a can help in removing frictions & difficulties in the area of inter

government –cooperation.

For making Indian –Federalism more robust & viable system the differences between the

centre & the state must be sort out so that India may successfully meet the great-challenges of

difference, external & internal –security & socio-economic development. At lost, it is very

necessary that neither the federal set-up becomes unitary not that it becomes too lose & weak

affecting the unitary & integrity of the nation.

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