Is the Constitution of India a Federal Constitution?

The author discusses wh ether the Constitution of India is federal or not and to answer the question of whether the Indian Constitution can be called a federal constitution it is necessary to understand the concept of both federal and unitary in order to classify the nature of constitution.

“The constitution of India is neither purely federal nor purely unitary but is a combination of both”- It was the view of Sir Ivor Jennings, but the idea was worded by D. D. Basu.

According to the traditional classification of political scientists, the constitution is either unitary or federal. Whether the Indian Constitution is a fully federal system or a unified system is a matter of debate among scholars. One view is that it is a quasi-federal constitution with a novel feature adapting itself to national emergencies. The view is that it is a federal constitution with a novel feature adopting itself to national emergencies. The view of the framers of the Constitution is that the Indian Constitution is a Federal Constitution.

In order to clearly understand this conclusion, we first need to know what the Federal Constitution is and what is unitary constitution. The question of whether the Indian Constitution can be called a federal constitution troubles the members of the Constituent Assembly. It is necessary to understand the concept of both federal and unitary in order to classify the nature of the constitution.

Federal Constitution

Federal setups have two levels of government with appropriate power and function allocation. In this system, the central government and the unitary government act in well-defined territories, coordinate, and act independently.

Unitary Constitution

A unitary system is governed constitutionally as one single unit, with one constitutionally created legislature. All power is top-down. A unitary state is a sovereign state governed as one single unit in which the central government is supreme and any administrative divisions (sub-national units) exercise only powers that the central government chooses to delegate

Federal Features of Indian Constitution

·        Supremacy of the constitution:

This is one of the federal features of the Indian Constitution. Constitutional supremacy means that both the federal government and state governments operate within the scope of the constitution. Both the unions and the central government draw power from the Constitution. The most important feature of a federation is that the constitution is written. The Constitution of India is one of the most detailed and elaborated constitutions in the world.

  • Rigid constitution: 

The Indian Constitution is a rigid constitution, which is one of the basic features of the Federal Constitution. The procedure for amending the constitution under the federal system is usually strict. The Indian Constitution stipulates that certain amendments require a special majority. Such amendments must be passed by a majority of all members of each House of Parliament and must be passed by two-thirds of the members present and voting. However, apart from this process, certain amendments account for at least 50% of the approval of the state. After this procedure, the amendment will be signed by the head of state i.e. President. The Indian Constitution is called a rigid constitution because of the important amendments required following this procedure.

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·        Division of powers: 

The Constitution of India clearly stipulates the powers of the state and the central government, and the central and states have very clear restrictions on the power to make laws. The list contains 97 important national subjects, such as Defence, Railways, Postal services and telegraph. The state list consists of 66 subjects of local interest such as Public Health and Police etc. The Concurrent List consists of 47 subjects important to both the union and the state as Electricity, Trade unions, economic and social planning.

·        Supremacy and independence of the judiciary:

Supremacy of judiciary is another very important feature of a federal state where there is an independent judiciary to interpret the Constitution and to maintain its sanctity. The Supreme Court of India has the original jurisdiction to settle disputes between the Union and the States. It can declare a law as unconstitutional, if it contravenes any provision of the Constitution.

·        Judicial power

Judicial power is another very important feature of a federal country, which has an independent judicial institution to interpret and maintain its constitution. The Supreme Court of India has preliminary jurisdiction to resolve disputes between union and the states.

A law can be declaring unconstitutional if it violates the provision of the Indian constitution.

Unitary Features of Indian Constitution

Although the Constitution of India establishes the structure of the federal government, it is certainly very difficult to make the Constitution of India a true union category. The next provision of the Indian Constitution unifies them.

·        Union of states; 

Article 1 of the Constitution describes India as the “Union of States”. This means firstly that it is not the result of an agreement between states. The second reason is the lack of freedom of states to separate from the union. Moreover, both the Constitution of the union and the states play a role in a single framework and have to function accordingly. The Indian constitution has the feature of union federation as it will not destructure and helps maintain the unity of the country.

·        Appointment of governor:

Articles 155 and 156 stipulate that the governor shall be the constitutional head of the state, appointed by the president, and shall remain in office until the president is pleased. Further the centre has the power to take over the functioning of the state which may be on the recommendations of the governor. In other words, the Governor is the representative of the Centre in the respective states. The work of the Indian federal system shows that the Governor acts more as a central representative than as the head of state. As a result, the federal government manages state management.

·        Representation in the legislature: 

Equal representatives in the federation should best ensure the equality of all units within the Union. However, this does not apply to Indian states. Their representation in Raja Sabha is unequal.

·        Disturbances in the state: 

If a state or part of it has disturbances, the federal government has the right to represent the central region of the state or part of the affected country. Legislation may also increase or decrease the size of any state, and pass laws to change its name and boundaries.

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·        Unified judiciary:

The federal principle envisages a dual court system. However, in India, the judiciary is incorporated into the unified system with Supreme Court at the high authority.

·        Power to make laws: 

The Constitution of India authorizes the central government to enact laws on the state list. This can only be done if the matter is of state affairs and also Raja Sabha agree with a 2/3 majority. According to the “Union List”, the Constitution has very limited state authority and cannot assign all important topics to the centre.

·        Power to form new states and to change existing boundaries: 

As per Article 3 of the Indian Constitution, the centre can change the boundaries of the existing state and carve a new state. This should be seen from the independent historical situation. At that time, there was no independent country. According to administrative convenience, the British only constitutes a few provinces. At that time, the state was artificially created, the boundary was changed, and the rules for creating a new state were maintained, so that appropriate changes could be made as required. It should be noted that British India does not have a state similar to the United States.

·        Emergency provisions: 

The President of India has a power to declare three types of emergency provided under article 352, article 356 and article 360 of the constitution .It provide for an act of disturbances which can be either foreign aggression or an internal armed rebellion or failure of constitutional mechanism in a state and in case of financial emergency. Thus the normal distribution of powers between the centre and the states, which is the basic element of a federal constitution, is completely suspended. It is alleged that these provisions enable the union parliament to convert the union into a unitary state which affects the federal character of the constitution of India.

Judicial Pronouncement

The debate on whether India has a “federal constitution” and a “federal government” is aimed at the theoretical label given to the Indian constitution by the Supreme Court of India namely federal, quasi-federal or unitary. In the case of State of West Bengal V. Union of India[1], the issue on nature of constitution has been first discussed by the Apex court.
The Supreme Court ruled that the Constitution of India does not reflect absolute federal principles. Decentralization is mainly due to the difficult task of managing large territories. The court outlined some features, highlighting the fact that the Indian Constitution is not a “traditional federal constitution.” First, the federal states do not have separate constitutions for each state. The Constitution is the supreme document governing all states. Second, the Constitution can only be amended by the Federal Parliament, and the states have no right to amend. The Supreme Court further ruled that the legislative and executive powers of the state are affected by the respective supreme powers of the Union. The Indian state enjoys legal sovereignty. Political sovereignty is divided between the union and the state with great support to the union. Another reason against the theory of supremacy of states is the lack of dual citizenship in India. Therefore, it is concluded that the structure of the Indian Union provided by Constitution is centralized
In the case of the landmark case of State of Rajasthan V. Union of India[2], the nature of the Constitution of India was discussed. The learned judge focused on the clear constitutional provisions and discussed the abstract principles of federalism. It is provided that if it is possible to see the structure of the federal government behind the separation of the executive, legislative and judicial institutions in the States, it can be clearly seen from the provisions of Article 356. The Supreme Court held that it is the “prerogative” of Union legislature to issue instructions for the benefit of the people and to achieve the purposes set out in the preamble.

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In S.R Bommai V. Union of India[3], several judges interpreted the federalism of India in a different way. Ahmadi J. described the constitution of India to be a mixture of both federal and unitary. But the other Judges provide a biased view and stated that democracy and federalism is essential feature of our Indian constitution and are part of basic structure of the constitution.

In Kuldip Nayar v Union of Indian[4] the Supreme Court observed that though the Indian Constitution contains federal principle but it is also true that federal power is more with the union or centre.

In Ram Jawaya Kapur v State of Punjab[5] the apex court observed that the federal principle is not incorporated in the constitution of India in the rigid form.

Further in the case of Keshavananda Bharti V. State of Kerala[6]it was held that federalism is one of the basic features of the Indian constitution.

In the case of Sat Pal V. State of Punjab[7], the Supreme Court again held that the constitution of India is a combination of federal structure with unitary features.

Conclusion

Thus, it can be concluded that the constitution of India is neither purely federal nor purely unitary but is a combination of both. It is union of composite state of a novel type. It enshrines the principle that in spite of federalism, the national interest ought to be paramount.

Further it can be seen that the Indian Constitution is neither completely federal nor completely unified. It has the characteristics of both. Sir Ivor Jennings believed that India’s federal government had a strong centralization policy. In the words of D.D. Bass, the Indian Constitution is neither a pure federation nor a single unit, but a combination of the two. It is a new type of compound. It is usually defined as a quasi-federal in nature, so it can be said that it is mainly a federal government with certain unitary functions. Therefore the Indian constitution is mainly federal with unique safeguards for enforcing national unity and growth.

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[1] 1963 AIR 1241, 1964 SCR (1) 371

[2] 1977 AIR 1361, 1978 SCR (1) 1

[3] AIR 1994 SC 1918

[4] AIR 2006 SC 3127

[5] AIR 1955 SC 549

[6] AIR 1973

[7] AIR 1970 SC 655