Federalism in India

Introduction

 

Federalism has been derived from Latin word ‘Foedus’ which means ‘territories’ or ‘agreement’. According to Merriam Webster dictionary, Federalism refers to the distribution of power in an organization between a central authority and the constituent. According to Prof. Wheare, Federal principle is defined as the method of dividing powers so that the general and regional governments are each, within a sphere, coordinate and independent.[1]

Thus, federalism basically implies an institutional mechanism that accommodate two sets of power and authority i.e., one at the center or national level and second at the provincial or regional level which are both autonomous in their own sphere and are not subordinate to one another. In the federal nation, the powers are usually segregated between the two sets so as to establish a domain of collaboration, mutuality and reciprocity so that there is unity in diversity by avoiding any sort of contradicting interests and confusion. Though the powers and functions are divided but the government does not function in water-tight compartments. They come in contact with each other and thus, centre – state relations arise in a federal country. [2]

The United States of America has been considered as the model of federalism as it was the first nation in 1787 to adopt federal structure and subsequently many countries adopted Federalism, India being one of them.

 

Evolution of Indian Federalism

Indian Federalism is the product of an evolutionary process which went on for almost 8 decades since 1861. India has been the land of diverse cultures, backgrounds, languages that showcase the limitations of any kind of unified rule from one particular place. Moreover Huns, Delhi sultanate, Mughals and lastly Britishers played an important role in shaping India’s Federalism as Indian socio-political economic conditions were wrecked  by them time and again. During the reign of Mughal empire too, the administration of ancient India was decentralised with territory being divided into smaller administrative units with heads at each level. But as soon as Britishers took control they adopted the policy of centralisation of power as they provided absolute powers in respect of the Executive, Legislature and Finance to the Governor General of India through Charter Act of 1833. But British government soon witnessed discontentment and agitation from Indians due to the centralisation of powers as Indians had no powers left with them. The Revolt of 1857 also showcased the agitation of people towards centralisation and inadequacy of the existing institutions to resolve the issues and control the territory amicably, which made it evident that India could not be governed by a single authority especially when the “South of India differs from the North as much as France differs from Germany”.

Thus, the Government of India Act,1919 was introduced which proposed dyarchy in the nine important provinces but the roots of today’s federal system in India lies in the Simon Report of  May, 1930, which supported the idea of a federal government in India and it recommended complete autonomy in the provinces. The Nehru report also proposed the future Constitution of India as federal and suggested bicameralism. After significant failures of several round table conferences and no conclusion being drawn, British government issued White paper in March, 1933 which proposed the principle of dyarchy at the centre. The White paper got assent of British Crown and it became the basis for the Government of India Act,1935. GoI Act,1935 abolished dyarchy in the province and introduced Federation at centre. It was designed to establish a centralised federation with a fair amount of provincial autonomy. Though the Act contained basic features of federation, mainly the dual system of government, division of powers, rigid and supreme constitution, calling it a federation would be far from the truth. [3]Indian politics faced a lot of uncertainties from 1937, till the partition and it was intrinsically connected with the reorganization of the Indian polity on federal lines. The federal structure that is followed by India today has its foundation in 1947 where all the provinces, presidencies and princely states were united by an instrument of accession which signifies that all the previously sovereign states came together to be known as nation – state. And India was established as the federal country through the enactment of Constitution of India where it adopted ‘Cooperative federation with a strong centre ‘as the communal riots, rehabilitation of refugees from Pakistan, and economic crisis enforced the feeling that only a strong centre could work effectively to face them.

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Federal Structure in India

Indian Federalism was the shift from the unitary system into a federal system rather than coming together of distinct administrative units to form the federal union. Though India has accepted a myriad of federal features but federalism is not mentioned in the Constitution, as though the drafters of the Constitution wanted to adopt federalism but they could not ignore the nation’s wants. [4]Thus, the Constitution of India which finally emerged is not federal in its classic sense, but it did contain all the important federal features.

• Firstly, the written and rigid Constitution should exist in the country which should be the supreme law, and source of all the powers for all the organs of state. Indian constitution is the world’s largest written constitution which is acknowledged as the Grundnorm of the country.
• Secondly, the existence of division of power between union and state government. In India, the powers have been divided between centre and state through Schedule VII of the Constitution which divides powers into three lists – Union list, state list and concurrent list that respectively enumerate the powers vested  in parliament, state legislature, and to both of them concurrently.
• Another essential feature of Federalism is the independent judiciary, which acts as the final resort of power to interpret and safeguard the Constitution under Article 124 and Article 214.
• Bicameralism is another feature of federalism, and the Indian legislature is also divided into two houses –  the upper house is called the Rajya Sabha and the lower house is called the Lok Sabha. 
• The provision to share revenue between centre and state also showcases the federal structure of the economy. [5]

Indian constitution thus provides for clear demarcation of the legislative, executive authority between union and states which is a principal feature of federalism. The existence of coordinate authorities independent of each other is the gist of the federal principle.

Though Indian federalism was designed on the basis of working of federalism in the US , Canada and Australia but yet it deviates in several ways and has established distinctive features as the framers of the Constitution have incorporated certain non-federal features in it which shows the tilt towards centre. And that is why India is often referred to as an asymmetric arrangement of federalism that showcases the strong centre in the country. The Constitution is federal in form but unitary in spirit. Prof. K.C. Wheare remarks India as a semi – federal or a quasi- federal state .[6]  India was called semi – federal in the State of Haryana vs State of Punjab [7]. Quasi- federalism refers to an intermediate form of state between a unitary state and federation. And the Constitution of India reflects both the features of a federalism and  union through its provisions. Following are some features that reflect the strong bias towards the centre in the country.

• The existence of a single constitution that is the supreme law in the country for both states and union showcase unitary tilt as in the true federation there are separate constitutions for both states and centre.
• Unequal distribution of power –  It is often seen that union government tends to supersede state government in terms of power.

1. Legislative Relations – Under Article 249, parliament is empowered to make laws with respect to every matter enumerated in the state list, if it is requisite for national interest. According to Article 246, if there is the case of an overlapping of interests or there is a deadlock between the union and state, weightage has to be given to the union.
2. Administrative Relations – The union government is responsible for the planning and control of the country and the state does not have much say, they only implement plans.
3.  Financial Relations – The Union government enjoys sweeping economic superiority as finances of the country are majorly controlled by them.

• In case of emergency in the country according to Articles 352, 356 and 360, the existing distribution of power between the government undergo a vital change and the centre becomes all powerful.[8]
• The Constitution is also not strictly rigid as Article 368 grants power to the parliament to amend the Constitution following the procedure laid down. And parliament does not need approval of state governments in each case.
• The existence of state also depends upon the authority of the centre. The boundary of the state can be altered and even new state could be created by parliament.

Thus, it is true to characterize India as a “federation with a strong centralising tendency”. In the words of Jennings,”Indian constitution is mix of both unitary and federal as to the requirement of time and circumstances and is not into tight molds of federalism like America”.[9]

 

Conclusion

 We can say that the Indian federalism is unique in nature and offers a possible solution to a number of problems. It has been tailored according to specific needs of the country as for a diverse country like India, federalism is a more robust and viable system so that all the challenges could be tackled. Respect to the foregoing discussion it is seen that quasi-federalism is the best possible option to achieve the harmony and tranquility in the country as the merits of both the structures could be enjoyed. And it is true to say that Indian Union is a unitary state with subsidiary federal features rather than a federal state with subsidiary union features.[10]

 

References

[1] KC Wheare , Federal government ( London : English language Book society,1968).

[2] M Asad Malik, II “Changing dimensions of Federalism in India : An Appraisal” (ILI Law Review , 2019).

[3]  Mukesh Kumar , “Nature of Indian Federalism : An Analysis of Historical Basis of Problem” ,Vol 7 Issue II, International Journal of Humanities and Social Science and Intervention (IJHSSIL), 42-47 ( 2018).

.[4]  “Concept of Federalism, Federalism in India”, available at: www.civilsdaily.com (last visited on 15 October, 2020).

[5] Roshni Duhan ,”Federal System in India and the Constitutional Provisions ” , Vol 5 Issue I,Innovative Journal of Social Sciences(2016).

[6] Explained:Why is it said that India has asymmetric Federalism”, The Hindu, 12 August, 2019, available at https://www.thehindu.com/news/national/the-forms-of-federalism-in-india/article28977671.ece (last visited  on 16 October, 2020). 

[7] AIR 2002 SC 685.

[8] Narendra K, Constitutional Law of India ( Allahabad, (Allahabad Law Agency ,9th ed,  2008).

[9] Editorial, ” A Challenge to Indian Federalism”, The Hindu , 28 October , 2013 available at https://www.google.com/amp/s/www.thehindu.com/opinion/lead/a-challenge-to-indian-federalism/article5278609.ece/amp/ last visited on 16 October ,2020, available at: https://www.thehindu.com/opinion/lead/a-challenge-to-indian-federalism/article5278609.ece. 

[10] ibid.

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BY PRANJALI AGGARWAL | UNIVERSITY INSTITUTE OF LEGAL STUDIES, PANJAB UNIVERSITY