WHAT IS FEDERALISM?

From the historical point of view, the term “Federalism” has been originated as one of the forms of the internal setup of the state and in the broadest sense “a multi-layer or pluralistic concept of social and political life.” According to the words of Prof. Jovan Djordjevic (Federalism, political encyclopedia), the word federalism stems from the word fetus, foederis and it means a union and collaboration for the purpose of achieving common goals by per se autonomous and independent subjects and individualities.[1]

Federalism means a well-regulated system in which a large number of particular states having equal rights unite to a “free union”, under the protection of their state individuality in common political acting.[2]In a federation, there will be coordination between the center and the member states and the political or sovereign powers should be divided between them, within its own sphere.[3]

Federalism can also be stated as the two-tier system of government with the union government (center) and the constituent units or states or provinces which acts as the sub-unit governments in a single political system with its own jurisdiction.

The distribution of powers between them is equally in a balanced manner. The federal states have their powers which are independent, specific, unique according to their suitable identity and the center will have other major significant powers such as defence, legislation, etc.

SYMMETRIC AND ASYMMETRIC FEDERALISM

According to Livingston’s, the quality and levels of federalism in the relationship between them may vary in a significant way.[4]This variation branches into two: one is symmetric federalism and another one is asymmetric federalism.  According to Tarlton, symmetric federalism as to some extent the constituent units do share the powers which are more or less common to the federal state as a whole but whereas asymmetric federalism as to some extent the constituent units do not share the powers common or equal to the federal state as a whole, there may be some specific peculiar protection and powers would be given to the center.[5]

TYPES OF FEDERALISM

DUAL FEDERALISM

            The Dual federalism is known as the layer-cake federalism or divided federalism. In dual federalism, the competences between the constituent units and the federation are divided field by field, and each level of law is exclusively competent in its sphere.[6] There will be no interference by the federal government as the powers are clearly defined.

CO-OPERATIVE FEDERALISM

            The co-operative federalism is known as marble-cake federalism. In the co-operative federalism, there the legal regulation of different levels competes to regulate the same areas[7], exists co-operation between federal and constituent units. They depend on each other and most of the development schemes will be financed by the federal.

JUDICIAL FEDERALISM

            In McCulloch v.Maryland, the Hon’ble Supreme Court expanded the powers of the Congress by the broad interpretation of “necessary and proper” and reassured the supremacy of the federal, with the ‘Doctrine of Implied powers’[8]

THE CONSTITUTIONAL STRUCTURE ADOPTED IN INDIA

          The constitutional structure in India is neither entirely federal nor entirely unitary. According to many of the eminent scholars, India is an example of “Quasi-Federalism.” From the word of Kenneth C.Where,“ the institution of quasi-federalism can be stated as the midway between a real federation and a unitary state.”[9]

            Many scholars have debated the constitutional structure of India. According to Sir. Ivor. Jennings, “India is a federation with a strong centralising power” where Norman D. Palmer says that India has distinct features of federalism which changes the essential federal nature of the state. Whereas according to W.H. Morris Jones’s view India has a kind of co-operative federalism where bargaining takes place between center and states which ends with a solution, consented by both.[10]

THE EVOLUTION OF FEDERALISM IN INDIA

The federal form of government was developed in ‘Government of India Act, 1935’. It is the evolutionary process since 1861 and the centralisation in India has begun in The Regulation Act, 1773. After 60 years of the process of centralisation, The Chartered Act, 1833 was passed by the British parliament with complete centralisation in all the fields viz., Legislative, Administrative and Financial matters. This complete centralisation has led to the friction between the union and provincial governments as the comprehensive powers were in the hands of the center. This pressure has been cognised by the British Government and in 1861, the Indian Councils Act was passed with the decentralisation in the field of legislation. With the Indian Councils Act, 1892, the legislation has acquired more decentralisation and paved a new way in the Indian political system.[11]

            There also decentralisation in the field of financial matters to a certain extent in certain departments. First step has been led by Lord Mayo who introduced decentralisation in the departments of police, medical field, education, jails, etc., Second step has been put forth by Lord Lytton, he gave some control powers to the provincial governments like revenue on land, law, and justice, excise and land taxes, etc., The third step has been led by Lord Rippon in 1882, the income sources were divided among the center and provincial governments.[12]

            The Montagu-Chelmsford Reforms played a vital role in the development of the Indian Political System which led to the adoption of certain principles of federalism and The Government of India Act, 1919 was passed by the British based on this reform, introduced ‘dyarchy’ mainly for the provincial governments. There will be bicameral legislature with two houses viz., Legislative Assembly and Council of States, the primitive model of the Lok Sabha and the Rajya Sabha in India. Every bill should be passed by both the houses to be recognised as law. There are also institutions viz., Joint Committee, Joint Reserves, Joint Sitting to resolve the deadlocks between the center and provincial governments. In this dyarchy, there were subjects viz., Reserved and Transferred. Reserved comprises of subjects which are of essential for the welfare of the large number of people and for maintaining the law & order and peace viz., land revenue administration, law & order and justice whereas Transferred subjects are of requiring much local co-ordination and interests viz., agriculture, fisheries, education, public works, etc.,[13]

            Dyarchy has failed in its very own object to establish the responsibilities to the elected legislature within its definite sphere.[14] There are many reasons for the failure of the dyarchy system some of them are governor had preponderating powers, as he even interfere in the transferred subjects and there had been difficult in the practical implementation of the divided subjects.[15] This failure of dyarchy had agitated the want of Federalism in India as result of the agitation the Government of Act, 1935 was passed, after the Rowlatt Act and the Simmon Commission Report and various discussions in the three round table conferences. The 1935 Act influenced the features of the federal structure with strong power in the center in the Indian Constitution

THE FEDERAL FEATURES IN INDIAN CONSTITUTIONAL

1. Division of powers – The division of powers between the union and the states is the main important characteristic of the federal constitution. As discussed before, the framers of the constitution adopted the pattern of the Government of India Act, 1935 and have given predominant power to the union over the states. The legislative powers are divided under the scheme of the division of powers as under the Lists provided in the 7th Schedule of the Indian Constitution viz., Union List, State List, and Concurrent List. The relation between the union and the states are governed as under Articles 245 – 293 of Part XI of the Constitution. Article 246 provides the subject matter with respect to which the parliament and the state legislature can make laws. These divided subject matters cannot be said to be perfect as there may be overlapping or repugnancy or any conflict arises between the union legislature and the state legislature where the union legislature prevails the other under Article 254 of the constitution. But there is an exception if the state legislature has been reserved for the consideration of the President and has received his assent for the same, then the state legislature should prevail in the state under Article 254 (2) of the constitution.

2. Supremacy of the Constitution – The Constitution of the state constitutes the supreme law of the land as the state derives its existence from the constitution. The constitutional supremacy is upheld in the landmark judgment Minerva Mills v. Union of India,[16]it has been heldEvery law made by bound by the constitution, and nobody is above or beyond the constitution.As against the federal constitution, by its very nature contains the checks and balances and must contain provisions for resolving conflicts between the executive and legislative authority of the union and the regional units[17]. In India, every law made by the parliament and the state legislature even the constitutional amendments are subjected to the interpretation of the Hon’ble Supreme Court and it has the power to nullify the laws which are found beyond or above or violative of the constitution. In India, the constitutional supremacy is founded on the following principles:

-> The Constitution draws the authority from the people as it is evident from the preamble of the constitution “We the people of India… do hereby adopt, enact and give to ourselves this constitution” and it has been proclaimed in the name of the people. This also makes us understand that any legislature made by the parliament or state cannot be violative of the constitutional provisions.[18]

->The constitution is the source of authority of all organs of the state including the legislature in the constitution, which created them.[19]

3. Written constitution – For a federal constitution, it must be a written one as it is impossible to maintain the division of powers between the union and the states. If it has to be the supreme law of the land, it should be the written constitution. The Indian Constitution is the written constitution fulling the above requirements too with 395 Articles and 10 Schedules.

4. Rigid constitution –According to A.V. Dicey, a rigid constitution as one under which certain laws, called constitutional laws or fundamental laws cannot be changed in the same manner as ordinary laws. A constitution can be determined whether it is rigid or flexible based on the amendment procedures, a flexible constitution can be amended by the amendment procedure followed by the ordinary laws whereas in the rigid constitution can be amended by a very difficult and requires special In India, there is a mixture of both rigid and flexible. Parliament can alter or modify most of the ordinary laws of the constitution by a simple majority. Under Article 67 (2), a vice – president can be removed from his office by a resolution passed in the Lok Sabha by a simple majority. To pass ordinary bills, money bills, to declare state and financial emergency and in the election of the speaker, deputy speakers of the Lok Sabha and Rajya Sabha require a simple majority.[20] This denotes the flexibility in the amendment procedure. The special majority requires 2/3 of the total members present in each house and voting and also as expressed in Article 368 of the constitution, For Example, the amendment of the fundamental rights. This denotes the rigidity in the constitution.

5. Bicameral Legislature– Bicameral system is also an essential characteristic for a federal state.Dr Herman Finer observes, “Legislatures are bicameral for two broad and different reasons as a part of federalism and as the result of a desire to check the popular principle in the Constitution. In India, there is bicameral at the center consisting of Lok Sabha having the elected representatives of people and the Rajya Sabha consists of the elected representatives by the state Legislative Assemblies

 

THE UNITARY FEATURES IN INDIAN CONSTITUTIONAL

            There are various unitary features are apparent in the Indian Constitution. Some of the significant features are discussed as follows:

1. Single Constitution and Single Citizenship –In Federal state, the provinces have their own separate constitution which is different from the center’s constitution. In India, there is a single constitution, which governs both the union and the states. This deviates the federal system and gives power to the center. In the FederalConstitution, the citizen possesses dual citizenship, one is national citizenship and another one states citizenship whereas, in India, there is single citizenship provided under the Indian constitution.[21]

2. Single Judiciary –In the Unitarian state, there is a unified single constitution and there will be a single court at the apex. In India, the Hon’ble Supreme Court is the apex court and superior court over other courts including the Hon’ble High Courts.[22]

3. Strong Centre – As provided under the Lists in the 7th schedule of the constitution, the center has more subjects than the state list and the significant subject matters were placed under the union list. In the concurrent list, the center will interfere in the subject matters and if there is any inconsistency in the subjects between the union law and the state law, the center law will prevail the state law.

4. Destructible states – Unlike the American Constitution which has the ‘indestructible union and indestructible states,’ in India under Article 3 of the Constitution, the parliament may form a new state, alter the boundary of a state and change the name of the state. This gives the center more power and refers to the unitary feature.

5. Emergency provisions – Under the Indian Constitution, there is three types of emergencies viz., national, state and financial emergencies. Under Article 352, the president may, if he satisfied that a grave emergency exists where there is a threat to the security of India or any part of the State, declared emergency. Under Article 356, the president may declare in the case of the failure of the constitutional machinery. During this emergency period, the center becomes the superior power and controls the specific state or the whole country and the fundamental rights guaranteed under Article 19 of the constitution got suspended under Article 358.

6. Veto power – The president has the power to without his assent, to the bills passed by the state legislature which are sent by the governor for the consideration of the president, not only in the first instance but also in the second time. Thus, the president enjoys the absolute veto power over state bills.[23]

7. Appointment of Governors – The president is the one who appoints the Governors of respective states under Article 155 and he holds the office during the pleasure of the President under Article 156 (1). Under Article 154, the executive powers shall be vested on the Governor and he is the constitutional head of the state, as the President at the center level. This highlights the center’s dominance over the states.

8. Integrated Election and Audit Machinery – In the federal system, there will be separate election machinery at the center and the states for conducting the elections. But in India, there is only single election machinery for conduction election both at center and the state levels. The Comptroller and Auditor General is the one who audits the whole accounts of the country (both center and states) and reports the same to the government of India under Article 149 and he is appointed by the president under Article 148. The state has no place in financial matters, it financially depends on the center and the center has the power to decide on the same. This again proves the unitary character in the Indian

CHALLENGES WITH INDIAN FEDERALISM

INTER-REGIONAL DISPARITIES

          There were various issues and difficulties have raised in the Indian Federalism. One of the major challenges for larger federations like India is inter-regional disparities. For the success of such larger federation is to eliminate the disparities. The larger countries which are having various dimensions should have the proper, well-constructed policies for substantial consumption of the natural resources available to them. At present India has witnessed the River water dispute between the states which posed a major challenge and also similar challenges in the management of minerals and hydrocarbon resources. Even the planning commission and the financial commission have played a significant role in reducing these inter-regional disparities for the promotion of the balanced development of the country. For the sustained social and economic development, there should be a balanced inter-dependency between the states. But this again raises another challenge.[24]

REGIONALISM

            Regionalism can be identified as an important challenge to the Indian Federalism. Regionalism is one of the factors raised by the pluralist nature of the country, this has been increasing in different parts of the country. The demand for new states on the basis of aggressive regionalism will affect the federal structure of the country. We can find more agitations for the creation of new states viz., Four-fold division of Uttar Pradesh, Gorkhaland from West Bengal, Bodoland, and KarbiAnglong

GLOBALISATION

Globalisation has created both the challenges and opportunities to the federal systems. Due to liberalisation, the state also desired to involve in economic development by accepting foreign direct investment within its territorial jurisdiction. The globalisation has driven the states, rise to the competition to secure investments from foreign sources. The market-driven economy has redefined the center-state relations, especially in the economic spheres. The co-operative federalism has been promoted as on one side there are developed states which enhances their economic development through FDI and on the other side there are underdeveloped states which are struggling to attain the economic development as there is lack of socio-economic environment.[25]

CONCLUSION

With this, the authors like to conclude by stating interesting facet where the Chief Minister of Telangana. Chandrasekhar sir has started the word “Federal Front”; and as per the evolution of federalism and features of federalism in India. Though there are manifest features of the federalism still India is facing challenges, we authors felt that by resolving the problems which are prima facieto India. Will reach the federal state as the United States.

[1] http://www.ijhssnet.com/journals/Vol_2_No_24_Special_Issue_December_2012/4.pdf [as visited on 9 Jan 2019]

[2] Hesse, Konrad: Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland [Basics of the constitutional law of the FR of Germany], 13. ed., Karlsruhe 1982

[3]Alexandrowicz, C. (1954) Is India a Federation? International and Comparative Law Quarterly (doi:10.1093/iclqai/3.3.393) [as visited on 11 Jan 2019]

[4] Michael Burgess, Comparative Federalism: Theory and practice (http://www.untag-smd.ac.id/files/Perpustakaan_Digital_1/FEDERALISM%20Comparative%20Federalism,%20Theory%20and%20practice.pdf) [as visited on 11 Jan 2019]

[5] Supra note 4

[6] Robert Schütze. From Dual to Cooperative Federalism: The Changing Structure of European Law 1124 (http://www.ejil.org/pdfs/21/4/2117.pdf) [as visited on 9th Jan 2019]

[7] Ibid

[8] Annenberg Learner, Federalism: U.S. v. The States (http://www.learner.org/courses/democracyinamerica/dia_3/dia_3_topic.html) [as visited on 9th Jan 2018]

[9] Federal Government, by K.C. Wheare, 1951

[10] Nature of the Indian Federal system, Chapter II, Shodhganga (http://shodhganga. inflibnet.ac.in/bitstream/10603/98721/8/08_chapter%202.pdf) [as visited on 11th Jan 2019]

[11] Evolution of Federalism in India, Chapter I, Shodhganga (http://shodhganga.inflibnet.ac.in/bitstream/10603/137969/7/07_chapter%201.pdf) [as visited on 18th Jan 2019]

[12] Supra note 11

[13] https://www.gktoday.in/gk/government-of-india-act-1919/ [as visited on 18th Jan 2019]

[14] Failure of Dyarchy and its positive achievements, Chapter VIII, Shodhganga, (http://shodhganga.inflibnet.ac.in/bitstream/10603/140656/13/13_chapter%208.pdf) [as visited on 18thjan 2019]

[15] http://www.theupsconline.com/357/discuss-reasons-failure-dyarchy-envisaged-under-government [as visited on 18th Jan 2019]

[16] 1980 AIR 1789

[17] State of West Bengal v. Union of India 1963 AIR 1241

[18] https://www.gktoday.in/gk/constitutional-judicial-and-parliamentary-supremacy-in-india/ [as visited on 19th Jan 2019]

[19] https://www.financialexpress.com/opinion/constitution-is-the-supreme-law-of-the-land/154982/ [as visited on 19th Jan 2019]

[20] https://www.clearias.com/majorities-indian-parliament/ [as visited on 19th Jan 2019]

[21] Nature of the Indian Federal System, Chapter II,  Shodhganga (http://shodhganga.inflibnet.ac.in/bitstream/10603/98721/8/08_chapter%202.pdf) [as visited on 19th Jan 2019]

[22] Ibid

[23]https://www.jagranjosh.com/general-knowledge/unitary-features-of-the-indian-constitution-1474958541-1 [as visited on 19th Jan 2019]

[24]https://www.outlookindia.com/website/story/the-challenge-for-federalism/235946 [as visited on 19th Jan 2019]

[25]https://www.gktoday.in/gk/issues-and-challenges-with-indian-federalism-others/ [as visited on 19th Jan 2019]

Authored by- Mr. PASAPALA SYED MUSTAQ.

Co-authored by- Ms. S. SRI VASAVI DEVI.

Categories: Legal Blog

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