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FEDERALISM IN INDIA

INTRODUCTION

Federalism is a system of government which divides the power between the central
government and the state government with the help of the constitution. In this system both the
government are not sub-ordinate to each other but, are co-ordinate and independent within
their own sphere allotted to them. In general words, every state has some independent powers
of their own to control their own territory. Some notable countries which are following
federalism include United States, Switzerland, Germany, Brazil etc. In among all countries,
United States is regarded as completely federal country which creates dual polity or dual
form of government which divides the power between the federal government and the
subordinates i.e. state government. The Constitution of India, in Article 1 states that, "India,
i.e. Bharat, shall be a Union of States". The Constitution nowhere mentions about the word
'federal' even though India has the essentials of a federal government, i.e. written
Constitution, distribution of powers between the Union and the States and an independent
judiciary. ways. However, the Supreme Court of India, in Special Reference of 1956 (AIR
1965 SC 745, 762) stated, “Although there has been considerable controversy whether India
is or is not a federation and although some writers have called it 'quasi federal', it would seem
that essentially the Indian Constitution is a federal one”

HISTORY OF FEDERALISM IN INDIA

For long, before independence, British India had been administered more or less as a unitary
entity, and, although in 1937, federalism was sought to be introduced under the Government
of India Act, 1935, it never took off the ground and worked in practice, as under the impact
of the second world war, India was administered under the emergency powers more as a
unitary, rather than a federal country. The past history of India conclusively establishes that
whenever the central power had become weak, the country quickly crumbled. Memories of
partition on the eve of independence were very green in the minds of the people and this
suggested to the framers of the Constitution the need for taking adequate precautions to
ensure unity and prevent any breakaway tendencies. The framers of the Constitution expected
that the country would have to force the pace of economic development so as to compress
into decades the progress of the centuries, and this could only be done effectively by
mobilising national resources and using them properly under central leadership. A unitary
constitution could not have been adopted because of the vastness of the country and the
diversity of its people and local problems and, therefore, the second best course to adopt was
to have a federal structure with a strong Centre.1 The founding fathers thus had a pragmatic
approach, keeping in view the unity and welfare of the country as the objectives to be
promoted

As regards the political party, because of the national struggle for independence against the
British, the Indian National Congress had built up a broad mass organisation, spreading
throughout the country, and all the governments at the time of the Constitution-making owed
allegiance to this party; it was the predominant party in the Constituent Assembly and this
facilitated the process of strengthening the Centre.

1
MP Jain: Indian Federalism : A Background Paper
FEATURES OF A FEDERALISM IN INDIA

1. Separation and Clear Demarcation of Powers: Constitution has clearly demarcated the
jurisdictions, powers and functions of the Union and the State Governments.

2. Separate Governments: Constitution has provided separate governments at the Union and
the States with separate legislative, executive and judicial wings of governance.

3. Bicameral legislature: the Indian Parliament has two Houses, with the Upper House
Known as the Rajya Sabha and the Lower House being known as the Lok Sabha. The
members in the Lower house is appointed via general elections i.e. which happens after 5
years and the members of the Upper House are indirectly elected by people, as the people
elected MP’s, MLA’s have to vote for a candidate to be a representative at the upper house.

4. Clear provisions regarding legislative, administrative and financial relations between the
Union and the States.

Paul Appleby calls the Indian Constitution as extremely federal. The so called autonomy of
the states appears to be a myth or practically impossible in certain circumstances.2 The
biggest threat to the autonomy of the states is the provisions like Article 356. Further, unlike
the classical federations like the USA, Indian federation is not an ‘indestructible union of
indestructible states’. Only the union is everlasting and the states are not. It may be pertinent
to note that, Article 3 of the Constitution give powers to the Parliament to constitute a new
state by separating territories from the existing ones, alter their boundaries, and change their
names. The central government in India has the powers, and it actually does enter the
legislative and executive domains of the states. Moreover, our constitutional system stands on
the foundation of co-operative federalism presuming interdependence of national and
regional governments of a federal union instead of granting them absolute
independence in the allotted province relating to a classical federal model. In the midst of a

2
H.M SEERVAI in CONSTITUTIONAL LAW OF INDIA: A CRITICAL COMMENTARY, Fourth Ed., Universal Law
Publishing Co. Pvt. Ltd., (2011)
strong Central Government, makers of our constitution sought to ensure that it “would not
necessarily result in weak provincial government that are large administrative agencies for
central policies”.

The Constitution of India is basically federal, but, with striking unitary features, which
questions about the federal structure of the nation. For example, there are articles of the
Constitution which are clearly unitary in nature, for example:

• Article 248: with regard to the residuary powers of legislation;

• Article 249: power of Parliament to legislate with respect to a matter in the state list in
national interest;

• Article 250: If there is any national emergency, Parliament has the right to make laws with
respect to State subjects automatically

• Article 253: parliament can make laws on State Lists to comply with the international
agreements

• Article 257(2) giving directions to a state;

• Article 271: surcharge on certain duties and taxes not to be shared with the states.

• Article 356: In the case of president's rule in state all the powers will be handed over to
Parliament

• Article 160: Parliament can give some financial orders or can order to reserve money bills
passed by states

• Article 256: Centre can give administrative directions to the States

It is thus clear that the Constitution has given overruling powers to the Central
government. States must exercise their executive power in compliance with the laws made by
the Central government and must not obstruct on the executive power of the Union within the
States. Importantly, the Executive head of the State i.e. Governor is also appointed by the
Central government. The Centre can even take over the executive of the States on the issues
of national security or breakdown of constitutional machinery of the State. 3In view of the

3
Article 356 of Indian Constitution
above overriding powers given to the Union various authors have been reluctant to
call India as a federal country and instead the Constitution is often been described as ‘quasi-
federation’4, ‘semi-federation’5 ‘pragmatic federation’6 “bargaining federalism” or a
‘federation with strong unitary features’. In fine, it may be echoed that the Constitution
of India is neither purely federal nor purely unitary but is a combination of both. It is a Union
or composite State of a novel type

Our constitution makers deliberately added some articles in the constitution to ensure the co-
operation between the centre and the state and to minimize tensions of the central
government. There are some other features in the Indian Constitution which focuses on the
federal principle in the country:

1. Article 252: Provisions for enabling Parliament to legislate in the State area on the request
of two or more States,

2. Article 243-I: Constitution of Finance Commission and Scheme of financial relations


between the Centre and the States,

3. Article 275 and Article 282: Grants in-aid under the scheme of Centre-State
administrative relationship along with provision for all-India services

4. Article 307: Creation of agencies for the purposes of articles 301, 302, 303 and 304

5. Full Faith and Credit Clause

Article 261 of the Constitution of India provides that full faith and credit shall be given
throughout the territory of India to all the public acts, records and judicial proceedings of the
Union and of every State. This is a step to promote cooperation and faith between the Centre
and the states. Further, 261(3), final judgments or orders delivered or passed by civil
courts in any part of the territory of India can be executed anywhere in the country according
to law. The full faith and credit clause promotes uniformity and unity throughout the territory

4
WHEARE KENNETH, FEDERAL GOVERNMENT, Oxford University Press, London (1946).
5
State of Haryana v/s State of Punjab (2002) 2 SCC 507
6
S.R Bommai v/s Union of India (1994) 3 SCC 1
of India and promotes cooperation between the states and the centre and gives due credit to
all the public acts.

6. Inter-State Council

Article 263 provides that the President may by order appoint an Inter-state Council if it
appears to him that public interest would be served by its establishment. The President is also
empowered to define the organization, procedure and duties of the council. In 1990,
in Dabur India Ltd. v. State of U.P7, the Supreme Court suggested the setting up of a council
under Article 263 to discuss and sort out problems of central state taxation.

7. Centre and State Zonal Councils

States Reorganisation Act, 1956 has introduced the concept of Centre and the States, Zonal
Councils. These councils have been created in order to bring the states of a particular
region in close conformity with each other. The Zonal Councils were created as an instrument
of intergovernmental consultation and cooperation mainly in socio economic fields and also
to arrest the growth of controversies and particularistic tendencies among the various States.
It is important to note that the Sarkaria Commission has opined that the Zonal Councils have
not been able to fulfil their aims and objections. The commission recommended that these
Councils be appointed under Art. 263 so that they get the status of constitutional bodies
operating in their own right, but this hasn’t been implemented.

9. Finance Commission, Planning Commission, National Development Council

Despite a separate power of taxation given to the States, a substantial amount of money is
granted by the Centre to the States for execution of the Five Year Plan on the
recommendation of the Finance Commission. The funds by the Centre is transferred in the
form of grants under Article 282 and loans under Article 293.

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AIR 1990 SC 1814.
RECENT TRENDS OF FEDERALISM IN INDIA

Federalism in India has shown some signs of growth in these few decades, because of this
the relationship between the centre and the state has improved. This shift is slow, but it’s
a consistent process, so we can expect more changes in the future about the authority
given to the state governments.

Devolution of Funds to States

Present Finance Minister, Mr. Arun Jaitley, while grating more fiscal autonomy to the states
had laid emphasis on co-operative federalism during his Budget Speech for Financial Year
2015-16. The relevant part of his speech is extracted below:

In keeping with the true spirit of co-operative federalism, we have devolved a 42% share of
the divisible pool of taxes to States. As members of this august House are aware, this is an
unprecedented increase which would empower states with more resources. The devolution to
the States would be of the order of Rs. 5.24 lakh crore in 2015-16 as against the devolution of
Rs3.38 lakh crore as per revised estimates of 2014-15. Another Rs 3.04 lakh crore would be
transferred by way of grants and plan transfers. Thus, total transfer to the States will be about
62% of the total tax receipts of the country8

Niti Aayog

In a further step towards fiscal co-operative federalism, the Planning Commission was
scrapped by the Government and a new body, National Institution for
Transforming India (“NITI Aayog”) was formed. As per the Government of India,
Cooperative Federalism, is a primary goal, while enabling States to have active
participation in the formulation of national policy, as well as achieving time-bound
implementation of quantitative and qualitative targets through the combined authority of the
Prime Minister and Chief Ministers.9 It is important to note that NITI's Governing council
includes Chief Ministers of all States and Lieutenant Governors/Administrators of Union
Territories. Taking the involvement of States in the country's policy decisions a step further,

8
Finance Minister Arun Jaitley, 2015-16, Budget Speech
9
http://www.pmindia.gov.in/wp-content/uploads/2015/05/NITI-08.02.2015.pdf.
NITI Aayog constituted Sub-Groups of Chief Ministers to settle complex issues for e.g
Swachch Bharat, Skill Development and Centrally-Sponsored Schemes

Delhi Govt vs Lt. Gov of Delhi Case

The judgment of the Supreme Court in the Government of NCT Delhi v/s Union of
India case, resolving the dispute over the delineation of powers between the Union
Government and the Government of NCT Delhi, laid down a few key principles: first, the
Legislative Assembly of NCT Delhi is competent to enact laws on all subjects in the State
and Concurrent Lists, except public order, police, and land, as per Article 239AA(3)(a);
second, the Government of NCT Delhi (GNCTD) enjoys executive powers over all matters
over which the Delhi Legislative Assembly can legislate; third, the Lieutenant Governor (L-
G) is bound by the aid and advice of GNCTD as per Article 239AA(4), and fourth, the LG
may, only in exceptional cases, refer a matter over which he/she and the GNCTD have a
"difference of opinion", to the President, for a binding decision.i

CONCLUSION

The connection between the centre, the states and the lower levels lies at the core of India's
feeling of nationhood and is the pre imperative for India's advance. Be that as it may, each
middle state and between state connection has a political debate at its heart. Such a debate
gradually ages into a monetary one and prompts underdevelopment, neediness and birth of
negative powers. Except if political debate and stagnation in the financial field isn't tended to,
joining and solidarity in the government set up won't be finished. Both Centre and State
governments must take care of the assignment of safeguarding our nationhood through
valuable agreeable federalism which requires a lot of duty.
The need to meet up today isn't just the outcome of the new difficulties confronting the
country however that a similar will fill in as an antitoxin to keep such difficulties from
repeating in future. Helpful federalism alone reinforces the country from inside by
empowering it to withstand difficulties and difficulties as a result of its intrinsic flexibility
and pliability. So we can state that India isn't Federal however Quasi-Federal but according to
the recent trends shows a steady rise of federal scope of India, so in near future we are about
to witness some dynamic changes in our constitution.

i
SC verdict on Delhi govt vs Centre: Capital back with citizens, now cooperative federalism must prove itself.
Link: https://www.firstpost.com/india/supreme-court-verdict-on-delhi-vs-centre-capital-is-back-with-its-
citizens-its-now-the-turn-of-cooperative-federalism-to-prove-itself-4669771.html

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