Nature of the Federal System I

“Article 1(1) “ – ‘India that is Bharat, shall be a Union of States’

1

Dr. Ambedkar – “Although its Constitution maybe Federal in structure, the word ‘Union’ is used to provide following advantages:1. Indian federation is not the result of an agreement by the

units2. The component units have no freedom to secede from it

Different types of federal constitutions in the modern world No agreed definition of a Federal State Always compared with the model of United States (1787) Only the Constitutions of Switzerland and Australia confirm

to United States model closely So the questions of decisions are:

Whether unitary or federal Whether basically unitary or federal Federal with unitary characteristics How many federal features

Indian constitution basically Federal with Unitary features

Essential features of federal policy1. Dual government2. Distribution of powers3. Supremacy of the Constitution4. Authority of courtsAbove features existing in Indian Constitution

Peculiar features of Indian Federalism1. Mode of Formation

American type –> Voluntary agreement between a number of Sovereign and Independent States

Canadian type –> Not formed out of separate independent existence

India –> Provincial governments were virtually the agents of Central Government deriving powers of delegation from centre

Government of India Act, 1935 – set up a federal system Similar to that of Canada – “By creating autonomous units and combining them to a Federation by one and the same act”

Like in America, there is no agreement of sovereign States

2

Our constitution is the result of Constituent Assembly represented by the people of India

Progress has been from unitary to federal During British rule, they lacked ‘Federal Sentiment’ and

with lapse of British crown, the States acceded to dominion of India

Credit to the Constitution makers – gave equality of status to the provinces

2. Position of States in Federation USA –> Federation of Sovereign States and therefore

reluctant to give up their sovereignty –> State rights India –> No such need as they were not Sovereign

Statesa) USA –> residuary powers vest in States

India –> residuary powers vest in Union (Canada)b) USA –> drew up constitution of national

governmentIndia –> Constitution of State also except Jammu and Kashmir

c) USA –> amendment subject to StateIndia –> States need not be consulted

d) USA and Australia –> lack of central control over State legislation and administrationIndia and Canada –> Union control over State legislature and executiveEg. Governor of State appointed by President

State legislation can be vetoed by Presidente) The American Federation described by its SC as

follows:“An indestructible Union composed of indestructible States” Results in two propositions

i. Union can’t be destroyed by any State seceding from it Accepted by Indian constitution

ii. United States Union has no power to redraw its States India has deviated – Article 4(2) Indian States not indestructible States Reorganisation Act, 1956 –

number reduced from 27 to 14 Subsequently formation of new

States:GujaratNagaland

3

HaryanaMeghalayaHimachal PradeshManipurTripura

f) USA –> equality of State representation in UnionIndia –> not there

g) India –> Innovative systemInclusion of Sikkim as Associate State initially

3. Mode of Polity In USA:

a) Dual polityb) Dual citizenshipc) Double set of officialsd) Double system of courts- In addition, in India,e) Machinery of election, accounts and audit similarity

integratedf) Emergency Powersg) Federal system exists to give unitary strength:

Exclusive powers to Centre to legislate Centre to give directions to State Government

(Articles 256-257) and power to supercede (Article 365)

President’s power to Union of State executive and legislative powers (Article 356)

A critique of the federal system Prof Wheare

“A system of Government which is Quasi Federal... a unitary State with subsidiary federal features rather than a federal State with subsidiary federal features”

Prof. Alexandrowicz“The Constitution of India is neither purely federal nor purely unitary but is a combination of both. It is a Union or composite State of a novel type. It enshrines the principle that in spite of Federalism the nation interest ought to be paramount”

“Federation with strong centralising tendency”

Prof Wheare

4

Not there in India

“That however, is what appears on paper only. It remains to be seen whether in actual practise the federal features entrench or strengthen themselves as they have in Canada, or whether the strong trend towards centralisation which is a feature of most Western Governments. In a world of crisis, will compel these federal aspects of Constitution to wither away”

Reasons for ‘withering away of Federalism’a. Overwhelming financial power of Unionb. Comprehensive sweep of Union Planning Commission In defence of abovec. Uniform development of country as a wholed. Strengthens national government

‘Co-operative Fedaralism’ – Graville Austin

Resulted in resolving conflict between:a. Division of powersb. National Integration

That is, has been a boon to keep Indian together under separatists’ forces of CommunalismLinguismScramble for power

Survival of Federalism in India Co-existence of various political philosophies in India

Eg. Communist government in KeralaUnited Front in West Bengal

New regions demanding StatehoodEg. Meghalaya

ManipurNagalandTripura

Strong agitation for greater financial power for States

Conclusion“The proper assessment of the federal system introduced by our constitution is that it introduces a system which is to normally work as a federal system, but there are provisions for converting it into a unitary or quasi-federal system under specified exceptional circumstances”

I. Creation of new States

5

Article 1 - Name and territory of Union States – 25 Union territories – 7 Any territory acquired India has no right to acquire territory over which a

sovereign State is exercising sovereigntyReference Berubari Union A. 1960SC845(856)

Article 2 - Admission or establishment of new States Eg. Sikkim

Article 3 - Formation of new States and alteration of areas, boundaries of names of existing States

At behest of President Implies adjustment of boundaries Does not include cession of territory to foreign State

Article 4 - Laws made under Articles 2 and 3 to provide for the amendment of the First and Fourth Schedules and Supplemental, Incidental and Consequential matters

II. Allocation and Share of Resources – Distribution of Grants in Aid Part XII – distribution of revenues between Union and the

StatesArticle 268 – duties levied by the Union but collected

and appropriated by the StatesArticle 269 – taxes levied and collected by the Union

assigned to the StatesArticle 270 – taxes levied and collected by the Union

and distributed between the Union and the State

Article 271 – surcharge on certain duties and taxes for purposes of the Union

Article 272 – taxes which are levied and collected by the Union and maybe distributed between the Union and the States

Article 273 – grants in lieu of export duty on jute and jute products

Article 274 – prior recommendation of president required to bills affecting taxation in which States are interested

Article 275 – grants from Union to certain StatesArticle 276 – taxes on professions, trades, calling and

employmentsArticle 280 – Finance Commission

6

Article 282 – Expenditure defrayable by the Union or a State out of its revenues

Article 266 – Consolidated Funds and Public Accounts of India and of the States

Article 267 – Contingency fund

II B. Inter State disputes on resources

Part XII – Coordination between StatesDisputes related to waters

Article 263 – Provision with respect to an interstate council

Article 292 – Adjudication of disputes relating to waters of inter state rivers and river valleys

IV. Centre’s responsibility and internal disturbance within States

Part XIII – Emergency ProvisionArticle 358 - Duty of the Union to protect States

against external aggression and internal disturbance

Article 356 – Provision in case of failure of constitutional machinery in States

Article 365 – Effect of failure to comply with, or to give effect to directions given by the Union

VII A. Special Status of certain States

Part XXI – temporary, transitional and special provisions

Article 370 - Temporary provision with respect to the State of Jammu and Kashmir

Article 371 - Special provision with respect of the State of Maharashtra and Gujarat

B.Article 339 - Control of the Union over the

administration of schedule areas and the welfare of scheduled tribes

Definition of StateArticle 152 – In this part, unless the context otherwise requires

the expression ‘State’ does not include the State of Jammu and Kashmir

7

8