INTRODUCTION
Article 1 of the Indian Constitution classifies the territory of India into 3 categories – Territories of the State; Union Territories; and Territories that the Indian govt. can acquire at any point in time. All the states and some of the Union Territories have their own governments, which work in accordance with the Union government, which is the representative of India at the national and international level. Unlike the USA (which is a Coming Together Federation), where states have their own constitutions, laws, and legislation which might not be in unison with those of other states or the central government, India is a Holding Together Federation, wherein schedule 7 of the Indian Constitution defines and specifies the allocation of powers and functions between the Union and the states. It divides the operations and duties of the government(s) into 3 lists – Union List, State List, and Concurrent List.
In its primary sense, Federalism is the division of the executive and legislative powers between the Union and the state governments. It is a form of government where sovereign authority and spheres of influence are allocated, carved out in such a manner that variance and differences can be ruled out for smoother and harmonious functioning of the country, society, state, etc. Federation is a part of the basic structure of the Indian Constitution, i.e., not just any rule of law or legislation can amend it as declared by the Supreme Court in Keshvananda Bharti v/s State of Kerala[1]. Let’s delve deeper into the topic and look at Indian Federalism and its challenges.
INDIAN FEDERALISM
The Constitution of India is the longest written Constitution of a sovereign nation in the world. It contains 395 articles divided into 22 parts and 12 schedules. It nearly features 145000 words. It’s only fair for such a vast, overly populated, and diverse country like India to have such a lengthy constitution for proper governance and stability in the country. Because of these striking and contrasting features of the Indian sub-continent, India is a federal country. The Indian model of Federalism is a quasi-federal system as it contains significant segments for both a federation and a union. In a country like India, where we have people from different backgrounds and different cultures living side-by-side, it would be impossible for a single government to make and implement laws. Instead, it would be unfair for the people’s interest to come together from varied cultures, unknown languages, and diverse ancestry. As Dr. B.R. Ambedkar had put it, “India’s draft constitution can be both unitary as well as federal according to the requirements of time and circumstances.” What Ambedkar meant was India’s federal structure is opportunistic and flexible. And thus, we observe the 3 lists dividing 218 subjects of differentiating degrees for the Union and the states to make rules and amendments. The 3 lists mentioned in article 246 are Union, State, and Concurrent. The Union list contains 100 subjects over which the center has the exclusive power to make laws; the State list contains 66 subjects over which the state has absolute power to make laws in ‘normal conditions’; and the Concurrent list contains 52 subjects on which both the Unions and State governments can make laws, however, in case of conflict, the law made by the Union government prevails.
There are certain constitutional characteristics of Federalism that India fulfills to be called a federal country. They are the following: –
- The dual form of government (i.e., national and regional government), thereby demarcating a clear division of power.
- A written and rigid constitution with supremacy over every and any government so that neither can override the fundamental principles laid down by the Constituent Assembly.
- An autonomous and self-regulating judiciary that acts as a guardian of the Constitution. The judicial system of India, though complex, maintains the political stability of the country. The Supreme Court settles the disputes between the center and states. It has the right to interpret the supreme Constitution. It contains the power to review any legislation passed by the government, etc.
CRITICAL ANALYSIS OF INDIAN FEDERALISM
Unlike other nations, the states in India have no right to territorial integrity; they have no right to make their own Constitution (for example, USA); they have no say whatsoever in the emergency period. In the case of State of Bengal v/s Union of India[2], the Supreme Court observed “The Constitution of India is not truly federal in nature. The basis of the distribution of powers between the Union and its states is that only those powers which are concerned with the regulation of local problems are vested in the states and residue, especially those which tend to maintain the economic, industrial, and commercial unity of the country are left to the Union”.
Schedule 7 classifies all the subject matters of debate into 3 lists for easier ramifications and a smoother law-making process. Yet, all the essential subjects are either placed in the Union List or Concurrent List like railways, education, marriage, communication, etc. The Constitution states that “During an emergency, the Union Parliament is empowered to make laws concerning matters under the State List,” “the Parliament shall have the power to make laws for any matter included in the State List, if the Council of States declares by a resolution of 2/3 of its members present and voting that it is necessary in the national interest,” “in case of inconsistency between the Union and the State laws, the Union Law shall prevail.” “If the legislature of two or more states pass a resolution that it shall be lawful for the Parliament to make law on the subject in State list.” “Parliament shall also have power for the purpose of implementation of any international agreement, treaty, and convention.” “If there is any repugnancy between a law made by the Parliament and the law made by the legislature of State on the subject of Concurrent list, the law made by Parliament will occupy the field.”
Additionally, “the Governor of a State is empowered to reserve the Bill passed by the State Legislature for consideration of the President, and the President is not bound to give his assent to such a bill.” That apart, “the executive power of Union shall extend to give directions to the States and empower Union officers to execute matters in the State List.” Further, “if the government of a state is not carried on per the provisions of the constitution, the President has the power to impose President’s rule in such State, either on the report of the Governor or otherwise.”
When in Emergency, as the Indira Gandhi government invoked it in 1975, states lose all the power and the central government gains the sole authority over the law of the land. All the state legislatures are dissolved. The Constitution under articles 1 and 2, though recognizes the states by declaring India to be a union of states, encompasses the absolute dominion into the National government over the terminology of the states, the areas, and boundaries of the states, and not to mention the ability to change the status of a state to that of a Union Territory. One of the criticisms forms around the constitutional amendment process. It says that states have no role in the amending process of the Constitution except the ramification by half of the states and that too only in case of amendments which are of utmost importance to the whole idea of India as a sovereign nation.
CHALLENGES TO INDIAN FEDERALISM
There are prominently 4 factors that are responsible for the sustenance of Federalism in a country like India: –
- Because of its vast landmass, there is linguistic, cultural, religious, and regional diversity.
- Aptly distributed political power due to the rise of coalition governments, financial Federalism, regional political parties, etc.
- India’s political and institutional culture includes provisions and institutions like the Supreme Court, the Governor’s Office in all the states, among others.
- Last but not the least, the special exemption for various states like the North Eastern ones and Jammu & Kashmir
Despite all such facets of this intricate federal structure of the country, it faces some challenges which need to be addressed and resolved. These include: –
- The provision of single citizenship and single Constitution. This does not allow one to refer to themselves by their cultural or linguistic identity as one only identifies as an Indian.
- Regionalism encourages demands for autonomy.
- Disputes over GST are not new and can be viewed since its inception.
- The office of the governor is the most criticizes position in the country.
- The formation of Telangana too caused upheaval in the political dynamics of the country.
- By the 100th Constitutional Amendment Order, a part of the land was transferred to Bangladesh, triggering disharmony among citizens.
- Conflict over the accurate division of subjects among the three lists in Schedule 7.
One must try to conceive these issues rationally. You cannot compare India with the USA or with France or Russia or even China. It has a separate identity and so does its features and principles enshrined in the Constitution. So, the challenges/problems need to be resolved immediately but keeping in mind the national integrity and unity.
CONCLUSION
One extreme point of view calls India absolutely ‘unitary’ while the other end calls India totally ‘federal’. Some call it a ‘co-operative federalism’ and another bunch of people as ‘bargaining federalism’. In the case of the State of Karnataka v/s Union of India,[3] the Supreme Court observed Indian Constitution as neither extremely federal nor unitary but a mix of both where powers are divided, distributed, and defined yet, there runs through it all a thread or rein in the hands of the Centre. Thus, the Indian system of Federalism is regarded as quasi-federal. Too much separation and feeling of ingenuity from the whole leads to imbalance as could be seen in the early 1980s Punjab. But a genuine and considerable issue can also be resolved by peacefully and constitutionally demanding your rights like Telangana’s formation in 2017. Indian Federalism is quite unique in nature and offers a possible solution to many problems. It has been tailored according to the specific needs of the country. The flexible attribute of Indian Federalism will make it bent in all kinds of ways possible but one needs to know that this mess is not a product of Center versus State. Instead, it has been co-produced by both the entities throughout these 70 years and such troubles are normal because change is the only constant.
Author’s Name: Tanmay Garg (Dr. B.R. Ambedkar National Law University, Sonepat)
References:
- State of Karnataka v. Union of India, 1978 AIR 68
- Kesvananda Bharti v. State of Kerala, (1973) 4 SCC 225
- State of West Bengal v. Union of India, 1963 AIR 1241
[1] Kesvananda Bharti v. State of Kerela, (1973) 4 SCC 225.
[2] State of West Bengal v. Union of India, 1963 AIR 1241.
[3] State of Karnataka v. Union of India, 1978 AIR 68.
