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For Shivaji University, the Topic is prescribed for the 2nd Semester
(..4..)
NATURE OF THE INDIAN CONSTITUTION (FEDERALISM)
QUESTION BANK
Q1.“The Constitution of India is neither purely Federal nor Unitary but the
combination of the both” comment.
Q2. What are the types and characteristics of Federalism?
Q3. State the circumstances in which Sarkaria Commission has been appointed.
What are its recommendations?
Q4. “The Indian Constitution is Federal in form but Unitary in spirit. Critically
examine the Statement.
Q5. What are the merits and demerits of Federalism?
Q.6. The Indian Constitution can be both Unitary as well as Federal according to
the requirements of time and circumstances. Explain.
Q.7. Explain in detail, the concept of federalism and federal characteristics of the
Indian Constitution.
Q.8. Compare Indian Federalism with the World’s other leading federal systems.
SHORT NOTES
1. Sarkariya Commission
2. Finance Commission
3. Planning Commission
TABLE OF CONTENT
INTRODUCTION:-..............................................................................................20
II. FEDERAL PRINCIPLE DEFINED:- ....................................................................20
1.Distribution of powers:-..............................................................................................21
2. Supremacy of Constitution:- ..................................................................................21
3. Written Constitution:-.............................................................................................21
4. Rigidity:-.................................................................................................................21
5. Authority of court:-.................................................................................................21
6. Dual Polity:- ...........................................................................................................21
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4. Single Citizenship:- ................................................................................................23
5. Single Constitution:-...............................................................................................23
Merits and Demerits of Federalism:-...........................................................................24
A) Merits of Federalism:-............................................................................................24
1. Unity in diversity:-..............................................................................................24
2. Local problems are solved at local level:-.......................................................24
4. Convenient:- ........................................................................................................24
Expensive:- ....................................................................................................................25
3. Regional aspirations override national aspirations:- ..............................................25
4. Delay in decision-making:- ....................................................................................25
5. No uniformity in laws and decisions:- ...................................................................25
VI. Sarkaria Commission:-...........................................................................................25
Appointment of Sarkaria commission:-..............................................................25
Object of appointment:-...................................................................................25
Limitations on Commission:- .............................................................................26
Recommendations of commission:- ...................................................................26
1) Sharing of Corporate taxes:-..........................................................................26
3) Domination of Union is essential:-..................................................................26
5) Uphold Art. 356 (State Emergency):- ............................................................27
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.
I]
INTRODUCTION:-
Constitutions are either Unitary or Federal. In the Unitary Constitution, the
powers of the Government are centralised in one Government, the Central
Government. In such States, there are either no Provincial Governments. However,
if there is a provincial government (i.e., state government), it is subordinate to the
centre, e.g., the Constitution of Britain, Sri Lanka, Singapore, etc. In a Federal
Constitution, on the other hand, there is a division of powers between the Federal
(i.e. Union) and the State Governments, and both are independent in their spheres,
e.g., the Constitution of the U.S.A, Canada, Austria, Malaysia, Germany, etc.
Now, the question is whether the Indian Constitution is Federal or
Unitary—or partly Unitary and partly Federal (i.e. Quasi Federal). To arrive at an
appropriate answer to this question, we will study the characteristics of Federalism
and discuss whether our Constitution possesses those characteristics or not.
II. FEDERAL PRINCIPLES DEFINED:-
According to Prof. K. C. Wheare, Federal Principles means ‘the
method of dividing powers, so that the General (i.e. Union) and regional (i.e. State)
Governments are each within a sphere coordinate and independent. The federal
and regional governments are each within a sphere coordinated and independent
and not subordinate to one another”. The American Constitution is an example of
the Federal Constitution.
According to Prof. Where, if the Federal principles are predominant, the
Constitution is Federal; substantial compliance with all characteristics is
unnecessary.
III. ESSENTIAL CHARACTERISTICS OF A FEDERAL.
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CONSTITUTION:-
A Federal Constitution usually has the following essential
characteristics. These can also be called the merits of Federalism.
1. Distribution of powers:-
‘Federalism’ means the “distribution of powers of the State among
different coordinate bodies (each originating in and controlled by the Constitution).
Such distribution of power is important because matters of national importance are
entrusted to the Union, e.g., defence, railway, post office, etc. On the other hand,
matters of local concern remain with the state, e.g., agriculture, police, local
government, public health, sanitation, etc.
2. Supremacy of Constitution:-
A Federal State derives its existence from the Constitution. Hence,
every executive, legislative or judicial power, whether it belongs to the Central
Government or the State Government, is subordinate to and is controlled by the
Constitution. Supremacy of the Constitution is essential if the Government is to be
Federal.
3. Written Constitution:-
The Constitution should be written, e.g., the American Constitution,
the Indian Constitution, etc., to maintain its supremacy and achieve the goals
mentioned therein. A written Constitution is essential for the Federal Government
to work well. It avoids misunderstandings and disagreements about its provisions.
4. Rigidity:-
A natural result of a written Constitution is its rigidity. A Constitution
that is the supreme law of the land must also be rigid. A rigid constitution requires
a very complicated and difficult procedure for amendment. The Constitution of the
country is considered to be a permanent document. It is the supreme law of the
land. This supremacy of the Constitution can only be maintained if the method of
amendment is rigid.
5. Authority of court:-
Legal supremacy is essential for the existence of a Federal system.
Any action by the Centre or State may abridge the provisions of the Constitution
or infringe on the legal rights of individuals. In such situations, the Supreme Court
is the final authority to interpret the Constitution to settle such conflicts.
6. Dual Polity:-
The Federal Constitution establishes a dual polity. The Union at the
Centre and the State at the provinces are empowered with sovereign powers in their
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respective spheres.
The Indian Constitution possesses all the essential characteristics of a
Federal Constitution mentioned above. Still, some scholars hesitate to call the
Indian Constitution truly Federal. It is because, according to them, in certain
circumstances, the Indian Constitution empowers the Centre to interfere in State
matters and thus places the State in a subordinate position, violating Federal
principles. They, therefore, call the Indian Constitution ‘quasi Federal’, ‘Unitary
with Federal features’ or ‘Federal with Unitary features’. According to Jennings,
“it is a federation with strong centralising tendencies”.
IV. UNITARY FEATURES IN INDIAN CONSTITUTION:-
According to the above Scholars, the following are the unitary
characteristics enshrined in the Indian Constitution, or some characteristics deviate
from true Federalism toward strong centralisation.
1. Appointment of Governors:-
The Governors of the State are appointed and removed by the
President (Arts. 155 &156) and are answerable to him. The Governor is the
Constitutional head of the State, who shall normally act on the advice of his
ministers. The Governor is required to send certain State laws for the assent of the
President. The President has the power to veto (withhold) such State law (Art.
2. Parliament’s power to form new States and alter boundaries of existing
States:-
The Parliament of India may form new States. It may increase or
diminish the area of any State, and it may alter the boundaries or names of any
State (Art. 3). The State's very existence thus depends upon the sweet will of the
Union Government.
In Mullaperusar E. P.F v. Union Of India[AIR 2006 SC 1428.]
The Supreme Court has held that creating new states by altering territories and
boundaries of existing states is within the exclusive domain of Parliament. The
Constitution confers supreme and exclusive power on Parliament under Art. 3 and
4 to create new states by recognition. The parliament may enact provisions for
dividing land, water, and other resources, distributing the assets and liabilities of
the predecessor state amongst the new states, and making provisions for contracts
and other legal rights and obligations.
3. Emergency Provisions:-
1 AIR 1958 SC 956.
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The Constitution envisages three types of emergencies: (1) emergency
caused by war, external aggression or armed rebellion. , i.e. National Emergency
(Art. 352). (2) emergency caused by failure of Constitutional machinery in the
States, i.e. President's rule (Art. 356). (3) financial emergency (Art. 360). During
an emergency, the normal distribution of power between the Centre and the State
(which is the essential element of the Federal Constitution) is completely
suspended, and the Centre has the right to make laws on any subject even
mentioned in the State list. Therefore, the Government system becomes more
Unitary than federal during an emergency.
Emergency provisions in the Constitution are mostly misused. The
emergency on the failure of constitutional machinery is misused as a weapon by
the Central Government to remove the popular Governments in the State from the
other parties.
4. Single Citizenship:-
The Constitution of the U.S.A. allows dual citizenship. But our constitution
doesn’t envisage such dual citizenship; it only has a single citizenship of India.
5. Single Constitution:-
In India, there is only one Constitution for the Union and all States, unlike
in America. In America, apart from its Federal Constitution, each State is free to
make its own Constitution.
6. Election, Accounts and Audit:-
The U.S.A. has a separate and independent election, accounts, and
audit machinery. However, in India, this machinery is centralised.
7. Residuary Powers:-
Indian Constitution, under Art. 246, in Schedule VII, provides for
three lists. These lists comprise several matters on which central and state
legislatures can make laws. These lists are,
This distribution to make laws on enumerated subjects seems more
Union-orientedArt. 248 also gives the central legislature the upper hand in making
laws on subjects not enumerated in either of these lists.
1 Originally there were 97 subjects.
2 Originally there were 66 subjects but presently there are 61 subjects.
3 Originally there were 47 subjects.
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V. Conclusion:-
Dr Ambedkar, the chairman of the Drafting Committee, observed that
“notwithstanding many provisions, contained in Indian Constitution, whereby,
Centre has given powers to override the provinces (States), nonetheless, is a
Federal Constitution”. But it may be concluded that; the Indian Constitution is
neither purely Federal nor purely unitary but is a combination of both. Moreover,
it enshrines the principle that the national interest should be paramount despite
Federalism. Thus, the Indian Constitution is mainly Federal, with unique
safeguards for enforcing national unity and growth. Therefore, the Indian
Constitution is described as ‘Quasi-federal’ or ‘Federalism with a strong Centre’.
Merits and Demerits of Federalism:-
A) Merits of Federalism:-
In addition to the characteristics or merits (abovementioned) of federalism, it
has some other advantages, which stress the need for a Federal Constitution in the
country, viz.
1. Unity in diversity:-
In countries like India, where there is great diversity in culture,
language, etc., different States protect the aspirations of local people and their
culture, language, etc. Therefore, in India, Federalism is more useful than a unitary
form of Government.
2.
Local problems are solved at the local level:-
The State Government is formed to solve local problems at the local level.
Therefore, the State list contains 61 subjects, such as maintenance of public order,
police, public health and sanitation, agriculture, etc. They all are of local
importance.
3.
Advantages of Central as well as Federal governance:-
In Federalism, people are benefited both by the Centre and Federal
governments, e.g. trade, commerce, and intercourse throughout India are made
free. In contrast, military, post, telephone, and railway are Centralised for all
States.
4.
Convenient:-
Federalism is a more convenient form of Government since local
problems are solved at the local level.
5.
6.
Local aspirations of the people are best preserved:-
Representation of all the sections of the society:-
In federalism, all the sections of society get representation, including
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minorities..
B] Demerits of Federalism:-
Federalism has some demerits that are comparatively less than merits,
viz.
1. Co-ordination becomes difficult:-
The difficulty of cooperation between the Centre and the State is the
main problem in the smooth functioning of the Government. The problem comes
when the Governments of different parties exist in the Centre and the States. Funds
from the Centre to the States are affected in such circumstances. Therefore, the
concept of co-operative Federalism is affected.
Expensive:-
Maintaining governments at both the central and state levels is very expensive.
3. Regional aspirations override national aspirations:-
In the Federal States, there is always a fear that State aspirations may
override national aspirations. Therefore, demand for independent states or
countries increases, e.g., in Jammu and Kashmir, Punjab (some years ago), etc.
4. Delay in decision-making:-
A natural corollary of a federal system is a delay in decision-making.
Since there are two governments, implementing a central policy takes a lot of time.
5. No uniformity in laws and decisions:-
In Federalism, each State (within its sphere) makes laws. Such laws
on a particular matter differ from State to State. Therefore, there is no uniformity
in such laws.
VI. Sarkaria Commission:-
A)
Appointment of Sarkaria commission:-
So far, as a party government (i.e., National Congress) was in the majority
in the Centre and States, there was no question and demand to take the review of
the Indian federal system and allot more funds to state governments. However,
when local party Governments started to come into power in different States, like
Kerala, Tamilnadu, West Bengal, etc., the demand for a review of existing Centre-
State relations (i.e. Federal systems) and allotment of more funds to the State
Governments started growing. Because of this growing demand, the Government
of India (congress headed by Mrs Indira Gandhi) announced on 24 March 1983 the
appointment of a Commission headed by R. S. Sarkaria (Chairman), a retired judge
of the Supreme Court, with three other members.
B)
Object of appointment:-
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To examine and review the workings of the existing arrangements between
the Union and States concerning powers, functions, and responsibilities in all
spheres and recommend such changes or other measures as may be appropriate.
C)
Limitations on Commission:-
While working, the Commission was to keep itself within Constitutional
limits and give due regard to maintaining India’s unity and integrity.
D) Recommendations of commission:-
The Commission submitted its report to the Government in 1988. It firmly
turned down the demand for curtailment of the powers of the Centre and entrusting
them to States, Saying that a strong Centre is necessary for the preservation of
unity and integrity of the country. It further asserted that there was no need for
drastic changes in the existing provisions of the Constitution. In the financial
sphere, the Commission did not find any justification for major changes in the
basic Scheme of the Constitution, which divides the subjects of taxation between
the Centre and States. Though the committee has not asserted drastic changes in
the existing provisions of the Constitution, it made some of the following
recommendations-
1)
Sharing of Corporate taxes:-
The committee recommended sharing corporate tax and levy of consignment
tax on advertisement and broadcasting between the Centre and the States
(originally) used by the Centre.
2)
No transfer of subjects from Union to State list:-
The Commission did not favour the transfer of certain subjects from the
to deploy armed forces in the State. However, it favoured deploying such forces
only after the consultation with that concerned State.
3)
Domination of Union is essential:-
The Commission believed that the supremacy of parliament envisaged in the
Constitution is essential and needs no change.
4)
Governor with chief minister’s consultation:-
The Commission recommended consultation with the Chief Minister of the
State before the appointment of the Governor by the President. However, it did not
favour the abolition of the office of the Governor.
4
Under Art246, in schedule VII there are three lists.
List-I- Union List contains 97 subjects or items, on which Union Government exclusively make laws.
List-II- State List contains 66 subjects on which State Government exclusively may makes laws List –III Concurrent List-contains 47 subjects, on
which Union as well as State legislature can make laws.
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5)
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Uphold Art. 356 (State Emergency):-
The Commission did not favour the deletion of Art. 356, which permits the
President to impose Presidential rule in the State. However, it suggested that the
Centre could use this power only on rare occasions. It further suggested that the
possibility of forming an alternative government should be looked into before
imposing presidential rule in the state. An alternative government is to be
established if possible.
6)
Centre-State consultations before passing laws:-
The Commission suggested consultations with the State by the Centre before
passing any law on the subject mentioned in the concurrent list.
7)
Establishment of Inter-State Council:-
The Commission recommended establishing Inter-State councils under
Art.263 to solve disputes among the States.
E)
Acceptance/ non-acceptance of the report:-
The Congress Government headed by Mrs Indira Gandhi failed during this
period. The succeeding National Front Government accepted some of the
Commission's recommendations. When the Congress Government again came into
power in 1991, it accepted some more recommendations and implemented them.
Thus, the recommendations of the Sarkaria Commission have been accepted only
in limited matters.
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