Does India Believe In Mythical Notion of Federalism?

This blog is inscribed by Rajat Pareek.

Federalism is considered as one of the basic features of the constitution.[1] Before going into the profound question of whether it is a myth or reality. First, we should understand what is meant by federalism or federal system. Federalism means there is a division of power between centre and state, with some autonomy, which is coordinated and independent of each other.[2] Federalism can be understood as a group of states coming together to form a federation, like the USA. The features of federalism are- bicameral governments, separation of powers, the supremacy of constitution (with partial rigidity), an independent judiciary.[3] K C where, and many scholars, have termed India as a quasi-federation.[4] However, some scholars like C H Alexandrowicz has questioned whether India is at all federal.[5]   

The Constitution of India (hereinafter, ‘the constitution’) does not explicitly mention the federal character. However, eminent jurists including Justice Subba Rao, have argued that the presence of federal features in the constitution.[6] In West Bengal Case[7], Justice Subba Rao in minority opinion holds that India model should be considered sui generis model of federalism instead of comparing it with the world model of federalism.[8] In this paper, I attempted to analyse whether constitutional provisions, judgements or politics make India federal as it is claimed. Simultaneously, comparing it with traditional federalism model of the USA. Unlike United States of America, where state came together to form a federation, India is a union of states. There is neither contractual arrangement between the states nor state have their own constitution which gives them absolute sovereignty.

Firstly, the analysis of constitutional provisions, starting itself from Art. 1 of the constitution, which states India is a union of state.[9] Art. 3 and Art. 4 of the constitution which gives parliament power to form state or alter the boundaries of the states.[10] Unlike India, states in the USA have territorial sovereignty which cannot be changed by the centre.[11] The sovereignty of the state in India is not absolute. Though we claim federal character by separation of power under Art. 247[12] by three lists but that is curtailed by residuary power, which is vested with the centre. In the USA, residuary power is with states.[13] Also, even during the emergency state, the power is transferred to states instead of the centre, unlike India, where centre assumes power during an emergency.

Art. 249[14] of the constitution explicitly allows the centre to make laws on the matter of state list. The constitution has given law-making power to states but with the proviso that it should not be inconsistent with the law made by parliament.[15] Even in Art. 254 (1)[16], which talks about repugnancy of the laws to the extent with existing (pre-constitution) law shall be void. Although, clause 2[17] give states the power to enforce the law by way of getting assent from The President. However, when reading with the proviso, it takes us back to our initial position of the centre with ultimate authority.

The constitutional provisions of administrative relations like, Art. 256, 257, 258,[18] binds state with the primary obligation to implement laws, the state government is required to work on the direction of the central government. For instance, if a railway (which is under Union List) tracks are going through the state, then the state has the obligation to maintain and protect them. These provisions deprive the state of sovereignty. The idea goes against a federal structure where states coordinate with the centre but are independent. To our surprise, these provisions are original provisions of the constitution and were not enunciated by any constitutional amendment.

The judiciary which has held that the constitution is federal in character.[19] Despite, that judiciary in subsequent judgement never seems to apply the federal framework. The issue of Indian federalism was first time dealt in detail in West Bengal Case[20], majority judgement refrained from propounding absolute federal framework and uphold the supremacy of parliament to make law. CJ. Sinha, writing for the majority stated that Union has the power to trench on state rights (property rights issue in the case). If we give exclusive right to state it would curtail Union to “carry out its obligations in respect of the matter of national importance.”[21] Even in State of Karnataka v Union of India,[22] it was upheld that India is not federal in character but has been ‘characterised as federal’.[23] Beg, C.J propounded pragmatic federalism which is overpowered by unitary feature and asks whether convenient could denote India as ‘federal’. In S.R. Bommai case,[24] the court analysed what the federalism means and compared it with USA’s ‘traditional’ form of federalism and concluded that India cannot be held to be federal, rather a quasi-federal.[25] Therefore, even the Supreme Court always refrained from holding India as federal.

In the author’s opinion, even if we analyse the political set up, that would not make India federal. The executive head of every state is Governor.[26] The governor is appointed by the President.[27] This again indicates that the state government is under the supervision of the governor and indirectly following the direction of the state. The reason that many governors would adhere to the direction of the union is that between the period from1947 to 1984, 60% of the governor has served as an active politician.[28] Usually, defeated or retired politician from the centre ruling party is appointed as governor of the states.[29]

The union executive has many time tried to encroach the sovereignty of the state while exercising the power provided by the constitution. One of the instances is the formation of Telangana. The union executive to form new state declared President’s rule was imposed in Andhra Pradesh and subsequently bifurcation bill of Telangana was given assent of the President. This is a classic example where a state was deprived of the sovereignty and bifurcated into two separate states. Even, politically the state is not given autonomy to exercise powers.

Many scholars like Professor P K Tripathi and Alexandrowicz, have argued that India federalism is not federal at all. Prof. Tripathi calls Indian federalism as ‘mythical sense of federalism’. In his book, Federalism: The Reality and the Myth, he argued that essential requirements of federalism are not satisfied and use of expressions like federalism or federal is spurious.[30] C.H. Alexandrowicz has argued that unitary feature of India like single citizenship, unified judiciary, and all India civil services etc. make India more of a union as is written in the constitution rather than federal or quasi-federal in nature.           

Conclusion

India has always believed in Unity in diversity as the motto. Framers of the constitution wanted a strong centre with weak constituent units to save the country from disintegration. If we see the constitutional provisions mentioned above are a provision from the original constitution when it was adopted. This indicates that framers of the constitution never wanted India to be federal in the true sense but for convenient function feature like separation of power exists in the constitution. Even certain provision of the constitution goes against federal nature. Therefore, India is unitary in nature rather than federal.

The question of whether it should be called quasi-federal is that how one should define quasi-federal. What are the elements to be considered to call India quasi-federal? I think this question will always remain unanswered. It is axiomatic from the above discussion that the Union has ultimate and overriding powers. The explicit provisions of the constitution, judgements and executive action of the union do not corroborate with the idea of federalism. With this, the author would like to conclude that though we the people of India will continue to live in the bubble of the myth of federalism. It is self-evident that the constitution provides for strong unitary feature, and yet we call ourselves federal.                     


[1] Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr,  AIR 1973 SC 1461

[2] Prayag Bansal, Federalism in India – Analysis of the Indian Constitution, available on https://blog.ipleaders.in/federalism-in-india/#_ftn20

[3] Mahendra Pal Singh, The Federal Scheme, in The Oxford Handbook of The Indian Constitution (2006)  

[4] CH Alexandrowicz, Is India a Federation?, International and Comparative Law, Vol. 3 Issue 3 (July 1954)  

[5] Id.

[6] State of West Bengal v. Union of India, 1963 AIR 1241

[7] Id.

[8] Id.

[9] The Constitution of India, 1950, Article 1

[10] Id.

[11] S.R. Bommai v. Union of India, 1994 AIR 1918, 1994 SCC (3); see also, K. Venkataramanan, India’s asymmetric federalism, available on https://www.thehindu.com/news/national/the-forms-of-federalism-in-india/article28977671.ece

[12] The Constitution of India, 1950, Article 247

[13] S.R. Bommai v. Union of India, 1994 AIR 1918, 1994 SCC (3).

[14] The Constitution of India, 1950, Article 249

[15] Id., Article 251

[16] Id., Article 254(1)

[17] Id., Article 254(2)

[18] Id., Article 256, Article 257, Article 258

[19] Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr,  AIR 1973 SC 1461

[20] State of West Bengal v. Union of India, 1963 AIR 1241

[21] Id.

[22] State of Karnataka v. Union of India, 1978 AIR 68.

[23] Id.

[24] S.R. Bommai v. Union of India, 1994 AIR 1918, 1994 SCC (3).

[25] Id.

[26] The Constitution of India, 1950, Article 154

[27] Id. , Article  154

[28] H. M. Rajashekara, The Nature of Indian Federalism: A Critique, University of California Press, Asian Survey, Vol. 3 247 (March 1997)

[29] Id.

[30] Amartya Bag, Indian Federalism Examining the Debate, SSRN Electronic Journal (2009)

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