Nature of the Indian Constitution: Federal or Quasi Federal?

Introduction: Indian Constitution has a rich history blended with complications of its own. The Constitution of India is by far the lengthiest and most detailed constitution in the world. The credit is to be given to its makers who gauged the suitable provisions from various laws and conventions around the world and assembled them in the Constitution of India. However, one may claim that the seeds of ‘federation’ were rooted in the very period of colonization in India. India being a vast and diverse nation was nearly impossible to be brought under a single umbrella; especially due to the geographical, economical and historical differences among different regions. The constitutional development in the direction of ‘federation’ made a significant advance with the introduction of ‘dyarchy’ under the Government of India Act, 1919 [1]. The concrete foundation for the federal system was set up in 1935 via The Government of India Act, 1935, where the long stretched unitary system was replaced.

Federal Nature of the Constitution: The Constitution of India is suprema lex, i.e., the supremacy in India lies with the Constitution. Further, it is federal in nature as it establishes a two-tier government- central government and state government, and divides power between former and latter. There are three lists (Union List, State List and Concurrent List) given in the 7th Schedule that divide the subjects to be overseen by the union and state governments. The concept has been borrowed from the Canadian Constitution to ensure the smooth segregation of powers. Indian Constitution is a written document and formal source of law in India. It confers judiciary as an independent body to guide and protect the conventions and laws of the country. Another trait that enriches Indian Constitution as a federal one is its rigidity. Various provisions require special majority and ratification by States to be amended. As laid down in the Kesavananda Bharati case[2] that amending power given to Parliament under Article 368 is not unlimited but confined; thus basic structure of the Constitution hold rigidity and mustn’t be abrogated. Further, it has been held by the Supreme Court that federal structure of India is an inevitable part of the Constitution in State of W.B. v. Kesoram Industries Ltd. [3]

Quasi-Federal Nature of the Constitution: However as remarked by various scholars, the Indian Constitution is not absolutely federal but quasi-federal or hybrid federal. It certainly captures the essence of the federal Constitution but in various situations and exigencies it prima facie favours the central government. Some of them are as follows:

  1. Article 3: The power to alter the names, areas and boundaries of the existing states rests with the Union Parliament. Though, the suggestions of the concerned States are taken but they do not bind the Parliament.
  2. Article 9: India supports the notion of single citizenship. In the case of Pradeep Jain v. Union of India [4] it was observed by the Apex Court: “Though, Indian Federation had certain federal features, it was still not a federal state and it had only one citizenship, namely, the citizenship of India.” Thus unlike USA, the Indian Constitution does not establish dual citizenship.
  3. Articles 155 & 156: According to these articles Governor of the State is appointed by the President. Further, the tenure of the Governor can be terminated or extended as per the discretion of the President.
  4. Emergency Provisions: Emergency provisions prick the federal nature of the Indian Constitution. Under Article 352(1), President on being ‘satisfied’ that security or law and order of India are under threat can by proclamation declare emergency. As per Article 356, President if satisfied that there is a failure of Constitutional machinery in State, may by proclamation assume the powers of State Government to himself or to Parliament. These provisions put state governments on the lower pedestal and central government on the upper one.
  5. Articles 249: The central government has the power to make laws on subjects given under the State list. If the Rajya Sabha has passed a resolution, with the majority of not less than 2/3rd of the members present voting, that it is necessary to make the certain laws in favor of the national interest, even if that matter comes under the ambit of State List will be lawful.
  6. Article 250: Under Article 250, the Parliament has the authority to make laws regarding the matters under the State list when Emergency is in operation.
  7. Residuary powers: Residuary powers are conferred upon the central government. It implies that the central government has power to make laws upon the matters which have not been mentioned in any of the three lists in the Seventh Schedule.

 The Indian Constitution has been regarded as ‘quasi-federal’ by Dr. K.C. Wheare, ‘a unitary Constitution with subsidiary federal features’ by Dr. Ivor Jennings and ‘a unitary Constitution with vertically divided sovereignty’ by Prof. Alexandro Wicz. The Apex Court has also given various opinions in its different judgments.

In the case of State of Rajasthan v. Union of India [5], it was observed that the Indian union is federal albeit the degree of federalism is not of an absolute magnitude. This observation made in this case supported the President’s rule under Article 356. The Supreme Court in S.R. Bommai v. Union of India [6] interpreted the provision in question with a balanced approach. It was claimed that India is a constitutionally envisaged federal structure with a strong centralizing tendency. In State of Haryana v. State of Punjab [7], the concept of federalism was discussed again and consequently, it was accepted that there are legislative and executive powers conferred upon the central government that supersede the powers of state government. Although it was added that the successor government cannot nullify the decision with mala fide political intention.

Conclusion: The Indian Constitution can be regarded as a quasi-federal Constitution that aligns toward the centre in some stances but at the same time gives necessary autonomy to States. The federal structure of India has been fabricated to suit the needs of the country. Our forefathers while making the Constitution were aware of the difficulties that a diverse country may face while governing, thereby, they did not claim it as a ‘federation’ but a ‘union’. Thus, it can be concluded that the Indian Constitution does share a unitary bias but as a union, it treats all the States with necessary integrity and gives them their righteous share in jurisdiction. In Kuldip Nayar v Union of India [8], it was reiterated that the nature of the Indian Constitution is no longer a topic of conflict, it is established that India is not a strict federation but a hybrid- federal state.

References:

  1. Dr. Narendra Kumar, Constitutional Law of India, Allahabad Law Agency, Tenth edition, 2018, pp-7.
  2. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
  3. AIR 2005 SC 1646
  4. AIR 1984 SC 1420
  5. 1977 AIR 1361, 1978 SCR (1)
  6. AIR 1994 SC 1918
  7. AIR 2002 SC 685
  8. AIR 2006 SC 3127

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