The mode of formation of the Indian federation was quite different from that which led to the formation of a federal union of the American type. In India it was not the case of a number of sovereign and independent states entering into a voluntary agreement and setting up a federal state for the administration of certain affairs of general concern, keeping back with themselves the powers which they did not want to give to this new government.
The government of the country, till the India Act of 1935 was passed, was a centralised government and the process that was adopted under the India Act of 1935 was that of “creating autonomous units and combining them into a federation by one and the same Act”. The process for the establishment of a federation in India, therefore, has to be described as one of movement from the union to the units rather than from the units to the union.
The Act of 1935, however, cannot be described as having given to India a truly federal constitution. It has far too many restrictions imposed upon the provincial governments. When the British left India in 1947, they withdrew these powers and transferred their sovereign rights to the people of India to exercise them in accordance with a Constitution of their own choice.
If India has not been partitioned at the time it got its freedom, there would certainly have been far fewer features of centralisation in the Indian Constitution than we find today. A partition of the country, with the seceding part nurturing a grouse against it, and the uncertainties of the international situation, the emergence of two Super Powers struggling for supremacy over each other made it necessary for the Indian Constitution to make provisions for the centralization of power.
Critical Evaluation of India’s Federal System
Prior to the formation of the Constituent Assembly, the Cabinet Mission Plan emphasized on a Central Government with very limited powers to be confined to foreign affairs, defense and Communication. In contrast, the Muslim League and the Indian National Congress did not agree to this. Despite of this, the first report of the Constituent Assembly envisaged a weak center upon the encouragement of Cripps and Cabinet Mission Plans.
It was the passing of India Independence Act and the subsequent partition of India which made the Constituent Assembly to take up a more unitary version of federalism.
Mahatma Gandhi also favored the decentralized structure and preferred a panchayat/village based federation. On the other hand, the then Prime Minister Jawaharlal Nehru and Dr BR Ambedkar were in favor of a unitary system of governance while the Home Minister Sardar Vallabhai Patel also stood for the idea of federalism.
Finally a healthy compromised was reached which resulted in a balance of power between the Centre and the State, and India was thus described as ‘Unity of States’, and this unity being indestructible. The structure prescribed for Union as well as State governments with a single citizenship policy rather than dual citizenship.
In India, there are two governments in existence, the Union Government and the State Government. The two governments do not subordinate with each other rather cooperate with each other while working independently.
Though the Indian constitution has the traits of being a federal constitution, but in its strict sense, it is not. The presence of features which are necessary for existence of a federation is quite a unique aspect of Indian Constitution but on the other side, there are provisions which give more power to the Union Government vis-à-vis that of State governments.
Henceforth, the Indian Constitutional structure is a quasi-federal structure and it was made like this in the 1935 Act. This Act laid down the foundations of federal form of government in India. It provided for the distribution of legislative powers between the Union and the provinces (the structure at that time).
These provisions were laid down for promoting harmony and resolving differences between the provinces. The Act further maintained for a sense of cooperative relationships amongst the provinces.
The need for creating a cooperative relation between the provinces was felt even before the independence. The Indian Constitution has incorporated the principles in a detailed form which were actually laid down under the 1935 Act.
A well designed, and more important, well-functioning system of federal governance, by virtue of its manifold benefits, plays a key role in promoting the stability and prosperity of nations as the heights attained in development by the leading federations of the world – USA, Canada, Australia and Switzerland – demonstrate.
On the other hand, unless carefully crafted, federal systems do not endure as evidenced by the disintegration of many of the federal formations that came into being in the last century, such as Soviet Russia, Yugoslavia, Czechoslovakia, Rhodesia, and Nyasaland.
As earlier stated, the Indian constitution though, claims to be decentralized and federal is somehow too centrist. The Centre functions in a way which does not allow the State’s autonomy to function freely in a completely decentralized way. Now, the question arises “Was it intended to be made this way?” This could be highlighted as one of the reasons of India’s diminutive growth when compared to China, where complete autonomy to provinces in running their economies has resulted in much higher growth rates.
What makes the Indian federation ‘quasi-federal?’No doubt, India has a political and constitutional structure where federal features are evident. There is sharing of power between the Centre and the States but the Constitution provides Central Government with supreme powers and concentrates administrative and financial powers completely in its hands. It seems there was some deficiency which made the constitutional framers to incorporate features which worked against the federal principle.
Reiterating some Central Government’s powers, it has the power to reorganize the states through parliament; Governors appointed by the Centre can withhold assent to legislation passed by the state; Parliament can override the legislation passed by the states for the reasons of national interest; Governors have a role in the formation of state governments and the Centre is vested with the power to dismiss the state governments under Article 356; residuary powers are vested with the Centre and the major taxation powers lie with the Central authority.
Fortunately, the reviewing power of judiciary of Centre-State relation exists as that in federal structure. The bottom-line is that the Indian political system has federal features which are circumscribed with a built-in unitary core.
Former Chief Justice Beg, in State of Rajasthan v UOI, 1977 called the Constitution of India as ‘amphibian’. He said that ”….If then our Constitution creates a Central Government which is ‘amphibian’, in the sense that it can move either on the federal or on the unitary plane, according to the needs of the situation and circumstances of a case…”.
Similarly in S.R. Bommai v Union of India, “pragmatic federalism” was used. Quoting Justice Ahmadi, “….It would thus seem that the Indian Constitution has, in it, not only features of a pragmatic federalism which, while distributing legislative powers and indicating the spheres of governmental powers of State and Central Governments, is overlaid by strong unitary features…”
The phrase ‘semi-federal’ was used for India in State of Haryana v. State of Punjab, whereas in Shamsher Singh v. State of Punjab, the constitution was called ‘more unitary than federal.’
There is no provision of separate Constitutions for each State as required in a federal state. The Constitution of India is the supreme document, which governs all the states. Secondly, the Constitution can be altered only by the Union Parliament; whereas the States have no power to alter it. Thirdly, in contradiction to a federal Constitution, the Indian Constitution renders supreme power upon the Courts to invalidate any action which violates the Constitution. And fourthly, the distribution of powers facilitates local governance by the states and national policies by the Centre.
The Supreme Court further held that both the legislative and executive power of the States is subject to the respective supreme powers of the Union meaning that Centre is the ultimate authority for any issue. The political sovereignty is unevenly distributed between the Union and the States with greater weightage in favor of the Union.
Another reason which militates against the theory of the supremacy of States is that there is no concept of dual citizenship in India. The learned judges finally concluded that the structure of the India as provided by the Constitution is centralized, with the States occupying a secondary position vis-à-vis the Centre.
India, like Canada, constitutes an asymmetrical federation in the sense that some states have constitutionally guaranteed prerogatives setting them apart from the other states of the federation. However, in the case of India, rather unlike Canada, the affording of special status to a group or territorial entity never came easy.
Article 370 expresses special provisions for the state of Jammu and Kashmir with respect to rest of India as per its instrument of accession. Also, there are special provisions for the states of Andhra Pradesh, Arunachal Pradesh, Assam, Goa, Mizoram, Manipur, Nagaland and Sikkim as per their accession or state-hood deals as laid down in Article 371A-I.
President’s rule is another important thing to be listed, where the Central Government (through its appointed Governor) takes control of the State’s administration for certain months when no party can form a government in the state or in case there is violent disturbance in the state. Also, Article 3 articulates that the Parliament can change the name, area or boundary of a State without the consent of the State concerned. Thus the States in India do not enjoy the right to territorial Inviolability.
The Seventh Schedule of the Constitution indicates that distribution is one sided and is heavily in the favor of Centre. Union list contains the largest number of most important subjects. For example almost all the tax subjects are in the Union list (except the Sales Tax).
Another related provision is Article 248 which states that any subject that does not belong to the Concurrent and State lists, belongs to the Residuary List and it belongs to Central Government.
Article 312 talks about provides for the creation of All India Services (who can function both as Central and State Services). The All India Services officers are recruited, trained and appointed by the Centre but they largely function under the State Government. It is they who largely control the administration of State. The State government cannot take disciplinary action against officers, except transfer. Any other action take removal from service or reduction in rank can only be controlled by the Central Government.
Article 356 lays down that during the President Rule, the Parliament is authorized to legislate on one or more subjects of State list for the State’s concerned. The law thus made under the President Rule continues to be in force.
Provisions regarding Emergency are again of utmost importance. Article 352 talks about proclamation of National Emergency. It says that when the national security of India or any part of its territory is threatened by war or external aggression or armed rebellion, the President can declare National Emergency. (44th Amendment Act)
In case of national emergency the distribution of power is suspended and constitution functions as if it is a Unitary Constitution.
Another Emergency provision is Article 360 and talks about Financial Emergency of Centre over the country. When the Financial Emergency is in force, the distribution of the financial resources between the Centre and State can be suspended by Centre and all the financial resources can be used by Centre to meet the emergency situation.
Digressing a bit from the general federalism is the concept of Cooperative federalism, which is another class of a federal structure. This concept originated in the Australian Constitution as, there existed a felt need for a change from competitive to cooperative relationship in the working of the federal constitution.
This modern view of federation regards federation as a functional arrangement rather than mere division of powers between Centre and State. Cooperative federalism suggests that the Centre and the States share a horizontal relationship and not the one in which one is over & above the other. There are three factors through which this trend is promoted, namely:
- The exigencies of war when for national survival, national efforts takes precedence over fine points of Centre state division of powers;
- Technological advances means making of communication faster;
- The emergence of the concept of social welfare state in response to public demands for various social services involving huge outlays which the governments of the units could not meet by themselves out of their own resources.
This concept helps the federal structure, with its divided jurisdiction to act in harmony. This basically promotes cooperation by minimizing tension among the various constituent governments of the federal union to pool their resources in order to achieve the desired results. In India there are some constitutional mechanisms as also some extra constitutional mechanisms to foster the spirit of Cooperative federalism. The constitution makers might have deliberately provided for such features in the constitution in order to ensure the smooth working of the government.