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FUTURE OF FEDERALISM: ANALYSIS OF THE INDIAN CONSTITUTION (By-Ms. Khushbu Prasad)
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Future of Federalism: Analysis of the Indian Constitution
Authored By-Ms. Khushbu Prasad,
Amity
Law School, Amity University Patna
Introduction
Federalism implies the division of
political and constituent power, i.e., the ability to rule at two levels,
however local governments may exist inside a state as well. Every federal
system needs to divide authority between the Union government and the State
governments, who must both be sovereign in their own right and independent of
one another. Power has been split between the Center and the States, which is
one of the most significant features of the federal constitutions, in order to
prevent the anarchy and conflict between the two contending jurisdictions. The
Union List, Concurrent List, and State List are three lists in the seventh
schedule of the Indian Constitution that list numerous pieces of legislation:
The three legislative lists listed the authority given to the state
legislature, the Parliament, and all of them simultaneously. However, a matter
would be regarded as a residuary authority of the Parliament if none of the
three Lists addressed it. In a federal framework, the independent judiciary
plays a crucial role as the final arbiter of constitutional interpretation and
upholds constitutional principles.
Concept Of Federalism
The idea of federalism has several
different historical roots. Federalism is a national constitution for a group
of states that want union but not unification, according to Dicey. A federal
state, according to him, is a political ruse designed to balance national unity
and authority with the preservation of state rights. The existence of the union
and its states, the distribution of power between the union and the states, and
the strength of the union's bond are all essential components of a federation.
Consequently, there is a separation
of powers between the federal and state governments in a federation. Federal
governments are found in nations like the USA, Switzerland, Australia,
Canada, and others. The main
characteristics of federalism include the existence of separate federal and
state governments, the separation of powers, the rigidity and written nature of
the constitution, its supremacy, the independence of the court, etc.
The founding writers of the American
Constitution intended for the federal system of government to restore political
stability to a "inchoate assembly of thirteen haughty and quarrelling
sovereignties." The independence of the states in the United States, the
world's oldest federation, cannot be compromised until the Constitution is
repealed. The Constitution "looks to an indestructible union consisting of
indestructible states" in all of its provisions. Although this fundamental
goal has been accomplished during the last 200 years, despite the fact that
civil wars were fought along the way, the structure of American federalism
today is much more complicated than that. Federal experiments have seen similar
modifications to those in the United States in other regions of the world.
The Indian political system, which,
in contrast to the United States, began as an administrative rather than a
contractual federation, has also gone through the different stages of federal
policy, from its quasi-federal character to a stage of cooperation and
competition in its center-state relations, and then to a stage of extreme
centralization. This is not the place to list all of the Indian Constitution's
clauses that grant the Center power over its subordinate entities and that
prompted Prof. Wheare to say that "India is a unitary state with
subsidiary federal principles rather than a federal state with subsidiary
unitary principles." They are far too widely known. In India, the federal
legislature has the authority to create new states, change the borders of
existing states, and even abolish a state through regular legislative procedure
without resorting to constitutional amendment, which contrasts with the United
States, underscoring the central government's supreme status. Trends and
Concerns regarding the Indian Constitution's distinctive feature, the feature
of Indian federalism that sets it apart from the American system is
Parliament's ability to enact legislation for all or any portion of India's
territory with regard to any of the issues included in the State List during
the declaration of emergency. The Indian Constitution granted the Union
Government such imposing authority that, if it so desired, it could oversee,
supervise, and regulate the operations of state governments not only in times
of war or emergency but even in times of peace. In truth, the Indian government
assumes a unitary structure in times of emergency.
Despite these commonalities, the
Center is mostly dependent on the states to carry out its programmes. This has
occasionally prompted numerous state governments to successfully disregard
federal orders. The state governments' refusal to impose taxes on agricultural
revenue, which the Center has often
advised and which was most recently endorsed by the Raj Committee's proposal,
is a prime illustration of their steadfast disobedience of the Union's command.
Because of this, several academics have cited India as an illustration of
cooperative federalism.
The initial federal character of the
Indian system has been significantly altered by the Constitution (Forty-second
Amendment) Act of 1976. As Article IV-A[1] of
the Constitution stipulates, every citizen of India has a responsibility to
safeguard and defend the sovereignty, unity, and integrity of India. This is a
new inclusion in terms of fundamental obligations. Additionally, the amendment
changed Articles 352[2]
and 353[3] to
allow the President to declare an emergency only in relation to a portion of
the nation or to limit an existing declaration of emergency to only that
portion. The intention of the Constitution's authors to create a long-lasting
Union in which the states would have no ability to secede has definitely been
reaffirmed by this.
In my opinion, it is crucial for all
political entities, both national and regional, to improve their internal organizational
structures so that state and local concerns can be resolved there without the
need for unnecessary intervention from the top. In the past, state leaders had
a tendency to do this, which seriously undermined their own autonomy system and
gave the central leaders more power to impose their will at the state level.
All of this additionally entails the
growth of a unique political culture that, for lack of a better term, one would
refer to as federal culture. If the idea of unity in diversity is to be
restored to its original power in India, it is necessary for both the Centre
and the States to acknowledge the richness and vibrancy that result from the
sub-cultural variations among the country's numerous and diverse regions.
However, such a transition wouldn't occur until the Union and its constituent
entities as a whole began to establish a spirit of federal comity and spirit.
The process of political modernization in India seems to have reached a point
where an open, decentralized system may address systemic issues while advancing
toward economic, social, and political modernity. In the end, though, Indian
federalism is likely to remain a flexible, pragmatic, and easily reversible
imperfect process—just as it was in the past.
Two-Way Analysis Of The
Constitutional Character Of Federalism In India
India's constitution is exceptional
in that it is extremely detailed and substantive. The Indian constitution is
special since it declares India to be a union of states[4]
despite having a federal structure.
In contrast to the United States of
America, whose constitution grants dual citizenship, the United Kingdom's
constitution provides for a single citizenship. All citizens are unified under
the same identity as "Indians" because to single citizenship, which
provides the constitution a unitary aspect.
The Indian Constitution established a
dual polity in which the state and union governments each have the authority to
enact legislation on specific subject matters.[5]
The fact that the central government is in control of the remaining powers
makes this situation unique. The Indian federalism is a little difficult to
understand because of this characteristic that sets it apart from other
nations.
The written constitution is a further
indication that India is a federal nation. The Indian Constitution, which fully
outlines everything from rights to remedies, is the longest and bulkiest
constitution in the world. As a result, the nation's federal structure is
strengthened and state and citizen security is guaranteed.
The three democratic pillars of the
legislative branch, the executive branch, and the judicial branch each hold a
portion of the national authority. All three of these pillars work best when
combined with an independent judiciary, which upholds the supremacy of the
constitution and resolves disputes between two or more states or between the
Centre and the States. This ensures a strict corrective system. But is that
enough? The constitution's foundation of unitary administration is provided by
the court, which, while independent, is a cohesive institution. Other
provisions of the same constitution indicate that the president shall designate
governors,[6]
who shall hold office in accordance with the wishes of the president. That
implies that the heads of state are chosen at the whim of the federal
government, doesn't it? One may be curious.
India's constitution is rigid and flexible at the same time. One essential component of
India's constitution is rigid and flexible at the same time. One essential component of
federalism is the constitution's
rigour. But in less than 75 years after Independence, the same rigorous
constitution has undergone a century's worth of modifications.
A bicameral legislature made up of an
Upper House (Rajya Sabha) and a Lower House is established by the Constitution
(Lok Sabha). The Lok Sabha represents all of India's citizens, while the Rajya
Sabha serves as a proxy for the states of the Indian Federation. Despite being
a less powerful body, the Rajya Sabha is necessary to maintain federal
stability by defending state interests against the Centre's unwarranted
meddling.
Other than the aforementioned
clauses, the following clauses of the constitution conflict with its federal
nature:
The Union has the authority to create
new states and redraw the borders of existing ones.
• The Union has the authority to
enact laws relating to state affairs, and in the event that a dispute arises
between the Union and the State, the Union will prevail.
• The emergency articles of the
constitution when conjured up, give a unitary character.
Federalism In India And The Role Of
The Courts
Numerous cases challenging the
federal nature of the Indian constitution have been heard by the Indian
judicial system. To assist you digest its contents, I have compiled a few of
instances in reverse chronological order to illustrate the judicial system's
perspective on the matter.
"The Constitution of India is
not truly Federal in nature," the court ruled in State of West Bengal v. Union of
India.[7] The
Union and the States share authority on the assumption that "the powers
which are concerned with the regulation of local problems are vested in the
States, and the residue, notably those which serve to maintain the economic
industrial and commercial unity of the country, are left to the Union."
State of Rajasthan v. Union of India[8], the Indian Union is a federal
organization, in a sense. However, the requirements of progress and development
of the country, which must be nationally united, politically and economically
coordinated, and socially, intellectually, and spiritually elevated, greatly
dilute the scope of federalism in it. With this structure in place, the States
would be powerless to thwart the Central Government's plans for the lawful and
all-encompassing development of the country.
In State of Karnataka v. Union of
India[9],
it has been said that the Indian Constitution is quasi-federal in nature yet
not federal. It is true that the federal government and the states have
different roles in executive and legislative branches, yet there is still a way
to limit the federal government's influence.
Simultaneously in Kesavananda Bharati v. State of
Kerala[10],
some of the justices ruled that federalism is integral to the Constitution and
so cannot be changed.
In the case of S.R. Bommai v. Union of India[11],
there were four separate judicial rulings on this matter. First, Justice Ahmadi
ruled that the constitution was only "quasi-federal" because the word
"federal" was not used in any of its articles. Second, Justice Sawant
and Kuldip Singh both agree that federalism is a crucial part of our legal
system. In a third major ruling, Justice Ramaswamy proclaimed India to be a
"Organic Federation" tailored to the requirements of the parliament.
Justices Jeevan Reddy and Justice Agarwal ruled that the term
"federalism" in the Constitution should be interpreted in light of
its surrounding content. Limits on the discretionary application of Article 356
were imposed as a result of this case.
Federalism In India: Benefits And
Drawbacks
In a multicultural nation like India,
federalism has benefits and drawbacks. The division of power makes it easier to
run the seventh-largest nation, while the second-largest nation requires a
unified government to rule over adherents of virtually every religion known to
man. The nation benefits much from the integrated and independent judiciary
since it aids in providing appropriate redress for rights. However, a written
constitution with the flexibility and rigour that the Indian constitution
possesses is beneficial for codifying rights, but the same rigidity can be
detrimental if revisions are required. The Indian Constitution is not very
difficult to change, though.
Conclusion
India has always placed a high value
on the phrase "Unity in Diversity," and a federal government supports
the establishment of a nation with coexistence and mutual tolerance. A pure
federal structure would cause disarray and state separation in a nation like
India, which is split along linguistic and sectarian lines. A state will desire
to leave the union and form its own government if it is given too much power. I
think that's why Jammu & Kashmir's special privileges are frequently
questioned in the media.
To address all of this and the
aforementioned drawbacks, a balance between the nation's unitary and federal
structures is required. States should be independent in their own right, but
they cannot be completely autonomous to prevent a tyrannical state from arising
in the country. The Indian Constitution, with its particular provisions, offers
the safety and security that the people of India require from such things. It
creates a state that is simultaneously a union and a federation, giving India a
quasi-federal governmental structure that has unified India's diversity for the
past 71 years and will continue to do so for decades to come.
Article Information
FUTURE OF FEDERALISM: ANALYSIS OF THE INDIAN CONSTITUTION (By-Ms. Khushbu Prasad)
Authors: Ms. Khushbu Prasad
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/07/16
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
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