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Indian Federalism: Examining the debate

♣ Amartya Bag

What is a federal state?


To begin with, one should know what a federal state is. The concept of federal state has
evolved over period, with the political experiments it was clear that the some issues
should be handled best by the national government, while some could be handled by the
regional governments who can handle the issues of local interest.1 Federalism is a
mechanism for effective governance of a union to “reconcile unity with municipality,
centralisation with decentralisation and nationalism with localism”.2 The modern agreed
definition and concept of federalism has been more or less derived from the structure and
features of the American Constitution.3 K.C. Wheare defined federal state as a state
which has a “division of powers between general and regional authorities, each of which,
in its own sphere, is co-ordinate with the others and independent of them”.4 The sphere of
the general government and the regional government is defined and limited; both the
governments have supreme powers and no way the regional government is subordinate to
the general government.5 The state can be called a co-ordinate if the states can directly
operate the command on the citizens without any approval of each other. The presence of
a single, indivisible yet composite federal nation is important, however merging into a
uniform nation giving all the sovereign power of the provincial government to the general
government is not an option.6 There can be a concurrent list, in which one government
can override the power of the other, but the main test of federalism lies in the control,

♣ Amartya Bag is a 3rd Semester student of B.A. LL.B., KIIT Law School, Bhubaneswar.
1
See D.D. Basu, Comparative Federalism; Wadhwa and Company, Nagpur. 2nd ed. 2008; p 1-2
2
Ibid.; p. 5-6
3
See, K.C. Wheare, Federal Government; The English Language Book Society and Oxford University
Press, London. 4th ed. (2nd impression 1971); p. 1, See D.D. Basu, Comparative Federalism; See also infra
note 16; p. 255
4
See, K.C. Wheare, Federal Government; The English Language Book Society and Oxford University
Press, London. 4th ed. (2nd impression 1971); p. 33
5
Supra note 4; p 2 and S.E. Morison, History of the United States, Vol.1; p.87 as cited in K.C. Wheare,
Federal Government
6
See Ivo D. Duchacek, Comparative Federalism; Hold, Rinelarts and Winston Inc, London, 1970; p. 192
actual or potential, of atleast one subject in which only one of the government in superior
and the other is not.7

The federal nature of a state necessarily need not be written explicitly in the
Constitution8, the main thing to take into consideration is that the Constitution should be
regarded as Supreme and the presence of a written Constitution.9 Some of the
Constitutions like the Constitution of India, though the federal principles are not so
accurate, are not less important not to be considered as a federal state. They have been
named as quasi-federal states or as unitary with federal principles, it does not prevent the
Constitution from being predominantly federal in practise.10

In the early days of the Federal states like USA, Canada and Australia, the main
prevailing concept was of “competitive federalism”, the rivalry and disputes between the
general government and provincial government were significantly high.11 There was a
“brotherhood of tempted rivalry”; inspite of the rivalry and conflict the states were aware
of their mutual dependence.12 However, with the increase in inter-nation wars, rise in
concept of social welfare state and emergence of modern communication technologies
the concepts of competitive federalism gives way to “co-operative federalism”. Birch
defined co-operative federalism as “... the practise of administrative co-operation
between general and regional governments, the partial dependence of the regional
governments upon the payments from the central governments, and the fact that the
general governments, by the use of conditional grants, frequently promotes developments
in matters which are constitutionally assigned to the regions.”13 In the twentieth century,
the concept of federalism has risen to be a scenario of mutual co-operation between the

7
See supra note 4; p. 75
8
The Constituiton of USA doesn’t mention the word ‘federal’ in the constitution, though the word
‘confederation’ appears only once in Article 1 Sect. X which states that “no state shall enter into any treaty,
alliance or confederation”.
9
See supra note 4; p. 55
10
See supra note 4; pp. 17-20 where K.C. Wheare discusses about the Canadian Constitution, which though
predominantly Unitary in nature works as a federal state.
11
M.P. Jain, Indian Constitution Vol. I; Wadhwa and Co., Nagpur. (5th ed.) 2003 p. 825
12
See supra note 6; p. 192
13
A.H. Birch, Federalism, Finance, and Social Legislation in Canada, Australia, and the United States, p.
305. As cited in Granville Austin, The Indian Constitution: Conrnerstone of a Nation; Oxford University
Press, New Delhi. 1966 (13th impression); p. 187
two governments, with a centralist trend.14 However, a strong central government doesn’t
necessarily mean that the regional governments are weak which works as administrative
agents for caring out the policies of the central government.15

Analysing the Propositions in State of West Bengal v. Union of India and “Third
Sense of Federalism” by Prof. P.K. Tripathi

First, I would like to argue that there is not one proposition which justifies each other but
there are two contrary propositions, though they started out in the same direction but they
final result or conclusion are completely different.

In the first proposition given in the case of State of West Bengal v. Union of India, the
argument given at the bar was that “The Constitution having adopted the federal principle
of government the States share the sovereignty of the nation with the Union, and
therefore power of the Parliament does not extend to enacting legislation for depriving
the States of property vested in them as sovereign authorities.”16 However, the
Honourable Court held that the Indian “…Constitution which was not true to any
traditional pattern of federation”. The Sinha, C.J., argued that in India there was
withdrawal or resumption of all the powers of sovereignty into the people of this country
and the distribution of these powers save those withheld from both the Union and the
States by the Constitution. He continued saying that the legal sovereignty of the Indian
nation is vested the people of India and the political sovereignty is distributed between,
the Union of India and the States with greater weightage in favour of the Union.17 The
judge concluded that “…it would not be correct to maintain that absolute sovereignty
remains vested in the States”. On examining the various provisions of the Constitution,
one can conclude that the distribution of powers - both legislative and executive - does
not support the theory of full sovereignty in the States so as to render it immune from the
exercise of legislative power of the Union Parliament.

14
See supra note 9
15
Granville Austin, The Indian Constitution: Conrnerstone of a Nation; Oxford University Press, New
Delhi. 1966 (13th impression); p. 187
16
State of West Bengal v. Union of India, AIR 1963 SC 1241
17
Ibid.
The proposition given by Prof. P.K. Tripathi as the third sense of federalism which he
called as the “mythical sense of federalism”18 describes that the Constitution “...under
consideration does not satisfy the essential and indispensable requirements of
federalism…and the use of the expression federal or federalism, in this third sense, is
really speaking spurious .The conscious object or purpose of this spurious use is…to
metamorphose a non-federal constitution into a federal one.”19 The Constitution under
consideration may not have the requisite features so that it may be considered as a
Federal constitution, and the interferences drawn in the case of a federal Constitution is
not available. However, from time to time judges who are dissatisfied with the non-
federal character of the Constitution have tried to alter the very nature of the Constitution
through the “tool of judicial review”. They make a prior baseless assumption of having a
federal Constitution and attack on the provisions which are contrary to the principle of
federalism.20 Deviated from the actual reality they try to create a myth, and argue to make
the myth a reality through judicial interpretation.21

The proposition given in the case of State of West Bengal, substantially defers from the
proposition given by Prof. P.K. Tripathi. In the above case, the majority judges did not
act entirely on the basis of the “mythical sense of federalism” as put forward by the Prof.
P.K. Tripathi. Though the argument that the “Indian Constitution is federal” has been
justified as a myth in the above case. But the later part of the argument by Tripathi has
not been justified. The judges did not based their claims on the basis of the India to be a
truly a federal state and tried to prove its federal character and give judgement for the
state, rather they rejected the claims of the state that they shared sovereignty with the
Centre.22 However, the minority dissenting decision by Subba, J., said that “…the
political sovereign is the people of India and the legal sovereignty is divided between the
constitutional entities i.e., the Union and the States, who are juristic personalities

18
P.K. Tripathi, Federalism: The Reality and the Myth, Journal of the Bar Council of India, (August 1974);
p. 253
19
Ibid; p. 252-253
20
Ibid; p. 253
21
Ibid; p. 265
22
See supra note 15
possessing properties and functioning through the instrumentalities created by the
Constitution. …Within their respective spheres both in the legislative and executive fields
they are supreme; their inter se relationship is regulated by specific provisions.”23 The
majority decision of West Bengal case has been criticised by many of the authors, judges
and scholars.24

In the case of State of Rajasthan v. Union of India,25 Beg, C.J. considered the Indian
Constitution as “more unitary than federal” and have the “appearance” of a federal
structure. He also said that, “In a sense, therefore, the Indian union is federal. But, the
extent of federalism in it is largely watered down by the needs of progress and
development of a country which has to be nationally integrated, politically and
economically coordinated and socially, intellectually and spiritually up-lifted.”26 The
argument of that Indian Constitution is a federation is nothing but a myth is again proved.

There have been incidents when the third sense of federalism as explained by Tripathi has
been applied to attack the Indian Constitution as violation of federal principles. Demand
has been raised from time to time for re-ordering of the Indian federalism due to rise of
multiple political parties in the regional level, who want to improve their own position.27
The Government of Tamil Nadu appointed Rajamannar Committee in 1969 to examine
the entire question regarding the relationship that should exist between the Centre and the
States in a federal setup, taking into consideration the provisions of the Indian
Constitution and suggest amendments to it for providing greater autonomy to the state
Governments.28 The committee made a prior assumption of India being a federal state
and argued on the basis of this, and proposed amendments to the Indian Constitution. The
report of the committee “presented a classical illustration of the use of the term

23
See supra note 15
24
The Case decision has been criticised by D.D. Basu, Comparative Federalism; p. 78 and 133, H.M.
Seervai, Constitutional Law of India, Vol. I, Universal Law Publishers, (4th ed.); p. 283,
25
AIR 1977 SC 1361
26
Ibid; p. 1382
27
M.P. Jain, Indian Constitutional Law, Lexis Nexis Butterworths Wadhwa, Nagpur (5th ed.) 2008 reprint;
p. 725
28
Report of the Centre-State Relations Inquiry Committee, Government of Tamil Nadu, 1971; p.1 as cited
in P.K. Tripathy, Federalism: The Reality and the Myth
‘federalism’ in the mythical sense to accomplish the desired end of converting a non-
federal constitution into federal one”.29

Is India a federal state?

The framers of the Indian Constitution were aware of the changing concepts of functional
realities in other Federations, the historical background of India and the special needs of
India have framed the Constitution according to the changing need of the dynamic
society.30 There are provisions which don’t make Indian Constitution to be a federal in
the sense of American Constitution. But merely because the Centre is having more power
to some extent than the states, it doesn’t render the Constitution not to be called a federal
one as no two federal constitutions are identical, they can vary.31

Though India have external sovereignty, the within India, neither the Union nor the states
enjoys [absolute] internal sovereignty due to the division of powers between the Union
and the States in which both the Governments have plenary power within their assigned
sphere.32 Though the Union Government has been assigned the matters which are of
national importance, the matters concerning the States are no way subordinate, but they
are of a different importance than the Union.33

There exist certain provisions in the Constitution which are considered to be going
against the principle of federalism. The power to alter the boundaries of the state lies with
the Centre, however in practice the states themselves has forced the Centre to redraw the
boundaries of the state. The emergency provisions in Article 356, is considered to be a
deviation from the principle of federalism; however the provision is meant for temporary
and can be used only under certain exceptional situations under certain restrictions
created through judicial intervention.

29
See supra note 18; p. 273
30
Ibid.; p. 728
31
Ibid.
32
H.M. Seervai, Constitutional Law of India, Vol. I, Universal Law Publishers, (4th ed.); p. 296
33
Ibid; p. 296-297 and See also the judgment by Gwyer, C.J. in In re The C.P. & Berar Act, 1938, (1939)
F.C.R. 18 at p. 44
There has been a change in the construction of the nature of Indian federalism, in the case
of S.R. Bommai v. Union of India, it has been held that “Democracy and federalism are
essential features of our constitution and are part of its basic structure”.34 The courts
through their liberal interpretation of the Constitution have helped in extending the
legislative fields which otherwise can be read rigidly to encroach upon the entry of the
other government. The courts have played the significant role as the balance for
harmonious construction of the entry to maintain the Centre-State relation.35

The use of the term “quasi federal” which is generally used in connection with Indian
Constitution is quite vague and unclear about the deviation or conformity with the so
called pure federal model.36 There is no clear cut distinction or characteristics of a quasi-
federal constitution. There is quite chance that the term can be abused to construct a
negative impression of being a federal Constitution, making the “...mythical use of the
expression ‘federal’ for accomplishing the chronic end of snapping the strength and
authority of the Union.”37

Conclusion
There is a clash between the “orthodox school” of federalism and “dynamic progressive
school” of federalism. While the “orthodox school” consisting of K.C. Wheare,
Duchacek, Sawer, P.K. Tripathi, C.J. Sinha have tested the existence of federal principle
on the model of American Constitution and emphasised on the existence of a
“competitive federalism”. The “dynamic progressive school” of federalism which consist
of the modern day Constitutional experts like A.H. Birch, M.P. Jain, Seervai have
stressed on the concept of “co-operative federalism”.

The orthodox model of federalism is rigid and has no space for modification, taking into
consideration the modern day scenario. The deviation from the model American
Constitution is considered as a violation of federal principle. The third sense of

34
AIR 1994 SC 1918, p. 1977
35
See supra note 27; p. 725
36
See supra note 27; p. 730 and See also the article by P.K. Tripathi; p. 276-277
37
See supra note 18; p. 277
federalism as explained by Tripathi makes a basis on the orthodox rigid model of
federalism and later argues on the deviation from this model to turn a so called non pure
federal state into a federal one. The assumption made by Tripathi, who seems to belong
to the orthodox school is just a rigid one, and in his mind is the concept of “dual
competitive federalism”, which is outdated and taking into consideration the Indian
Constitution though have certain features which can be called as a unitary trend, but
actual in practise the Indian Constitution works more as a federal state.

The Indian Constitution as argued by the “dynamic progressive school” of federalism is a


model of “co-operative federalism” where the states don’t compete with the Union. They
also take into consideration the changing need of the society, the historical background
and take into account the actual practise of governing to ascertain the nature of the
Constitution.