Jus Corpus Law Journal

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The Essence of Federalism in India

Khushi Nagratha

a
Vivekananda Institute of Professional Studies, New Delhi, India

Received 17 March 2022; Accepted 26 March 2022; Published 01 April 2022

__________________________________

Federalism in India has been a subject of debate for decades. Indian constitution has been characterised by certain features that
are federal as well as those that are unitary. India is said to be a “federation of its kind” due to the varied nature of the features
of the Indian Constitution. The consolidation of federal policies and the recognition of diversity have contributed to the
uniqueness and dynamism of the Indian democracy. While pronouncing judgments in various cases, judges have tried to highlight
the meaning of federalism and how the nature of federalism has evolved. The Indian constitution is federal with a unifying
disposition to maintain the unity and integrity of the nation. This article highlights the essence of Indian Federalism by taking
into account the judicial trends toward federalism in the country and how it is a “federation of its type”. The question arises as
to why there is still room for debate about the true nature of Indian federalism despite the clarity provided by the Constituent
Assembly, the Constitution, and various court decisions.

Keywords: federalism, constituent assembly, unitary, diversity.

INTRODUCTION

Federalism is the division of power between the centre and the state governments so that each
of them can work independently. The division of force is one of the main elements of the
government constitution. Power is divided between the two levels of government so that both
can work autonomously and are not subordinate to each other. The constitution of India lists
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different things of regulation in three lists: Union List, Concurrent List, and State List in the VII
Schedule of the Constitution.1 The three official records separately identified the powers
vested in the Parliament, the state lawmaking body, and to the two of them simultaneously.
The guideline kept by these sorts of governments is "Division of Power". India follows the rule
of federalism wherein the power is divided between two levels, i.e., Central Government and
State Government.

According to K. C. Where,2 “...the systems of Government embody predominantly the division of

powers between Centre and regional authority each of which in its sphere is coordinating with the other
independent as of them, and if so is that Government federal?”

Encyclopaedia Britannica defines federalism as:3 “...mode of political organisation that unites
separate states or other politics within an overarching political system in such a way as to allow each to
maintain its fundamental political integrity. Federal systems do this by requiring that basic policies be
made and implemented through negotiation in some form so that all the members can share in making
and executing decisions. The political principles that animate federal systems emphasise the primacy of
bargaining and negotiated coordination among several power centers; they stress the virtues of dispersed
power centers as a means for safeguarding individual and local liberties.”

According to A.V Dicey,4 “...identified the three leading characteristics of a “completely developed
federalism” as including the distribution of powers among governmental bodies (each with limited and
coordinated powers), along with the supremacy of the constitution and the authority of the courts as the
interpreters of the constitution.”

FEATURES OF FEDERALISM

Written Constitution: India has the longest written constitution in the world which was
adopted by the Constituent Assembly of India on 26 November 1949 and came into effect on
26 January 1950.

1 Prof (Dr.) Mahendra Pal Singh, V. N. Shukla’s Constitution of India (13th Edition, Eastern Book Company 2017)
794
2 K.C. Wheare, Federal Government (Oxford University Press, London, 1963) 33
3 Govt. (NCT of Delhi) v Union of India (2018) 8 SCC 501 at para 92
4 A.V. Dicey, Introduction to the Study of the Law of the Constitution (7th edition, London: Macmillan 1908) 140

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Supremacy of Constitution: Constitution of India is the supreme law that must be adhered to
and this is the component that makes India a sovereign country. It gets its position from the
case Minerva Mills Ltd. & Ors v Union of India and Ors5. This case not just fortified the
“Doctrine of Basic structure” which was presented in Kesavananda Bharati vs the State of
Kerala6but also established that all the three levels of government were bound by the
constitution, the constitution was the supreme authority and all citizens were subordinate to it.

Supremacy of Judiciary: The constitution states that the Judiciary is the supreme authority
that can take decisions for the welfare of the citizens of the country. The Supreme Court’s
judgment is final in any dispute and it's a powerful binding result on alternative courts. The
Judiciary has the power to declare any law passed by the parliament as null and void if it is
against the fundamentals of the constitution. But the Judiciary is restricted to the powers laid
down in the constitution. Judicial Activism and Judicial Overreach are popular phenomena in
today’s times. Judicial Activism is encouraged but no democracy prefers Judicial Overreach.

Bicameral Legislature: India consists of a bi-cameral assembly which intends that there are
two houses present in the Parliament of India i.e Upper House (Rajya Sabha) and the lower
house (Lok Sabha). For any change in the constitution or for passing any new regulations, a
bill is required to have been passed in both the Houses of Parliament.

NEED FOR FEDERALISM IN INDIA

Decentralisation of Power: The progression of force in the nation is from top to bottom, i.e.,
the power flows from the Central Government to the State Government and native bodies.
Decentralization is vital with the goal that the center may not hold all powers in the country
which is not liked in an administrative type of Government.

Maintaining Diversity: India comprises a populace from an assortment of races and religions.
The word ‘secular’ was included in the Preamble through the 42nd Amendment Act, 1976.

5 Minerva Mills Ltd. & Ors v Union of India and Ors (1980), AIR 1789
6 Kesavananda Bharti v State of Kerala AIR 1973, SC 1461

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Secularism in the constitution implies that the constitution safeguards all religions. India is a
secular country which implies it cannot advance any one religion or race.

Easy Governance: For a country as large and as diverse as India, federalism helps the
overburdened administration. It is difficult for the central authorities to reach the native areas
to deal with the problems of the citizens. In such cases, the local bodies lend a helping hand by
assisting in the administration and for timely and proper assistance to every citizen of the
country.

JUDICIAL TRENDS TOWARDS FEDERALISM IN INDIA

The independent and supreme nature of the judiciary in the country has made way for various
landmark judgments that highlight the meaning of federalism, the nature of federalism in the
country, and how federalism has evolved over the years. Even though there have been various
instances where the courts have talked about federalism, there is still a lot of uncertainty
regarding the nature of federalism practiced in the country.

In the Automobile Transport v State of Rajasthan7case, Supreme Court interpreted the impact of
article 301 of the Constitution and observed that: 8

“The evolution of a federal structure or a quasi-federal structure necessarily involves, in the context of
the conditions then prevailing, distribution of powers, and a basic part of our constitution relates to that
distribution with the three legislative lists in the Seventh Schedule. The constitution itself says by Art. 1
that India is a Union of States and in interpreting the constitution one must keep in view the essential
structure of a federal or quasi-federal constitution, namely, that the units of the Union have also certain
powers as has the Union itself.”

In S.R. Bommai v Union of India9, a nine-judge bench had clearly expressed that the Indian
Constitution is federal.10 The court held that:11

7 Automobile Transport v State of Rajasthan AIR 1962, SC 1406

8 Constitution of India, 1950, art. 301
9 S.R. Bommai v Union of India AIR 1994, SC 1918
10 Ibid

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“.....The constitution provides more power to the Central government but the state is also supreme
within its spheres...The constitution of India is differently described, more appropriately as ‘quasi-
federal’ because it is a mixture of the federal and unitary elements, leaning more towards the latter but
then what is there in a name, what is important to bear in mind is the thrust and implications of the
various provisions of the Constitution bearing on the controversy regarding scope and ambit of the
Presidential power under Article 356 and related provisions.”

In Kuldip Nayar v Union of India,12 Parliament in 2003 amended the Representative of People
Act, 1951 where it deleted the requirement of “domicile” in the State concerned for getting
elected to the Council of States. The issue, in this case, was whether the 2003 amendment Act
violated the principle of Federalism, a basic structure of the constitution. The petitioner
contended that the amendment to section 313 of the Representative of People Act 1951 offended
the principle of federalism.14 The court rejected the petitioner’s claim and held that:15

“....India is a federal state of its kind and it is not part of the federal principle that representatives of a
state must belong to that state. Hence, if the Indian Parliament in its wisdom had chosen not to require
residential qualification, it would not violate basic features of federalism.”

In the State of West Bengal v The Committee for Protection of Democratic Rights, West Bengal,16 a
case regarding the exercise of power under article 22617 of the constitution, the high court had
handed over the investigation to CBI. The state questioned the jurisdiction of the high court
wherein the counsel representing the state argued that it is a violation of the federal structure
because CBI is a central agency and cannot investigate without the consent of the state. But the
argument made by the state was not accepted and the court held that:18

11 Ibid
12 Kuldip Nayar v Union of India AIR 2006, SC 3127
13 Representative of People Act, 1951, s 3
14 Kuldip Nayar (n 12)
15 Ibid
16 State of West Bengal v The Committee for Protection of Democratic Rights AIR 2010, SC 1476
17 Constitution of India, 1950, art. 226
18 Ibid

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“.....Any direction issued by the Supreme Court or the High Court in the exercise of power under
Article 32 or 22619 to uphold the constitution and maintain the rule of law cannot violate the federal
structure. Being protectors of the civil liberties of the citizens, this Court and the High Courts have not
only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by
Part III in general and under Article 2120 of the constitution in particular, zealously and vigilantly.”

In State Bank of India v Santosh Gupta,21 the court held that:

“The Constitution of India is a mosaic drawn from the experience of nations worldwide. The federal
structure of this constitution is largely reflected in Part XI which is largely drawn from the Government
of India Act, 1935. The State of Jammu & Kashmir is a part of this federal structure. Due to historical
reasons, it is a State which is accorded special treatment within the framework of the constitution of
India. The findings of the court in this judgment now have been diluted concerning the special status of
Jammu and Kashmir by the Presidential order 2019.”

In M.C. Mehta v Union of India,22 the Supreme Court while hearing a request about the
difficulties that individuals living in Delhi go through because of serious contamination in the
city, guided the Central Pollution Control Board to work in participating with different
authorities to set up an adequate number of control rooms in the capital city to screen the air
and make the necessary move. The court likewise asked the Centre and the Kejriwal
government to keep aside their disparities and devise a "common minimum program" for
finding ways to manage the pollution menace in the capital. This decision shows that both the
public authority at the center and state level should cooperate for saving the existence of
individuals by making appropriate strides for controlling pollution. It can only be possible
when both governments will work in cooperation and collaboration with each other along
with the municipal corporation.

19 Constitution of India, 1950, art. 32 and art. 226

20 Constitution of India, 1950, art. 21
21 State Bank of India v Santosh Gupta (2016)
22 M.C. Mehta v Union of India (2015) SCC Online SC 1327

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CRITICAL ANALYSIS OF FEDERALISM IN INDIA

Indian Federalism is a “federation of its type”. Even though the Indian Constitution highlights
the division of power through which neither the center nor the state government has outright
sway, many arrangements are existing in the Indian Constitution that conflict with the
standard of separation of power. The President of India under Articles 352, 356, and 36023 has
the ability to pronounce an emergency in the country. Article 20024 of the Indian Constitution
states that the Governor might save specific bills passed by the assembly of the State for the
thought of the President. The Central Government has more power than the State Government
in the case of a crisis. Power is not equally split between the Center and State. Parliament
might change the constitution without endorsement from the state law making body. The
nation is represented by just a single constitution for the two levels of government. In the
event of contention of regulations in the Concurrent List, which is made by the two levels of
government, regulations made by the Central government generally prevail. Under Article 2
to 425 and Schedule-I of the Indian Constitution, the central government has the ability to make
another state. Thus, the creation of a new state exclusively relies on the center. The two houses
in the Indian Parliament do not have equivalent portrayals. The states that do not have their
members represented in Parliament lack various opportunities, which harms the federal
character of the country. India showcases the nature of federalism with a unitary character
which makes it quasi-federal. Quasi federalism is a mixed form of government that consists of
a federal structure along with certain unitary features. In such a form of government, there is a
distribution of power between the Central Government and State Government, but major
power lies in the hands of the central government. Federal regimes also guarantee multiple
identities and thus help resist the mobilization of the majority based on a single, exclusive
identity. Reduction to union territory in Jam and Kashmir, reduction of state government
taxation power, new education policies denying the role of state government, arbitrary
imposition of taxes which are not shared with the state, and financial and political power to
direct policy-making by strengthening state government has taken on a more systematic

23 Constitution of India, 1950, art. 352, 356, and 360

24 Constitution of India, 1950, art. 200
25 Constitution of India, 1950, art. 2 and 4

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intent. This change also seems to be inspired by the belief that a strong center is needed to
make India strong. But history tells us that this is not the case. It must be remembered that it
was the strengthening of the federal regime and the recognition of diversity that contributed to
the vitality of India's democracy. Indeed, the states that demanded quasi-national autonomy in
most principles have helped to uphold India's constitutional commitment to multiple
traditions and spirits. Efforts to learn from such diverse traditions, rather than
homogenization, have so far supported our democracy.

CHALLENGES TO INDIAN FEDERALISM

Regionalism: Federalism results in the distribution of powers among the different states. The
Centre might start to focus on bigger states which may lead to the smaller states feeling
neglected and left out.

Language Conflict: Part XVII of the Constitution of India speaks about “Official Language”
from Articles 343 to 35126. Schedule VIII of the Indian Constitution states 22 dialects. There are
thousands of different languages spoken in various regions of the country. There is a tussle in
India for one official language. Hindi is always opposed as an official language by the majority
of Southern States.

Role of Governor: In India, the Governor of State is delegated by the President of India and he
holds office to the delight of the president. Though the Governor is the State Executive head,
he is supplanted by the President on various issues. The infliction of the President’s rule in any
state under Article 35627 on the report of the Governor, questions the federal nature of the
country when there is a chosen Government in the State.

Economic Incompatibility: In India, the financial compatibility of all states is not equivalent.
Some states are financially backward whereas some states are economically strong and the
people can afford to live luxuriously. Whenever there is a financial contrast and monetary
contrariness, it poses a threat to the federation in the country.

26 Constitution of India, 1950, art. 343-351

27 Constitution of India, 1950, art. 356
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Centralisation in Planning: India has a Planning Commission which works for both, the
Centre and the State Governments. The states are monetarily subject to the Center which
implies they need to initially pass a financial plan in their council for any work and
improvement in the particular State.

Religious Conflicts: India is a secular state and it has incorporated the concept of secularism
in the Constitution through the 42nd Amendment. India is a diverse country with people from
different religions. The country does not advance or give an extraordinary status to any one
religion. A battle between two religions and feeling of neglect by one religion makes Indian
federalism frail.

CONCLUSION

Based on the research and discussion, it can be inferred that the constitution of India has all the
features of a federal constitution, the center and states are free to make regulations in their
separate circles as assigned by the constitution. However, the center has supremacy in certain
situations that are mentioned in the Constitution itself. If either government attempts to abuse
its power, an independent judiciary plays an important role as it is viewed as the defender of
the Constitution. The idea of federalism in India is dynamic and has experienced multiple
changes since the commencement of the Constitution. Following the ascent of regional parties
and alliance-based governments, the federation has to become more adaptable and
accommodating, particularly in its financial aspects. The GST is a model where States equally
have the ability to force burdens so they can appreciate independence, which has been one of
the greatest tax reforms in the fiscal history of India. Both the central and state governments
should work with one another in an agreeable manner as opposed to being associated with a
contention. The government at each level is responsible for its separate electorates and it is the
constitutional commitment of each administration to work for the welfare of the people. So,
keeping in mind, the progressions in the economy and society in terms of globalisation,
technology, and the composition of the society, the central and states government must
cooperate and collaborate along with local bodies to address the common needs of the people
and work in a way as to maximize the satisfaction of the citizens of the country.

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