Constitutional LawResearch Article

Federal and Unitary Nature of the Indian Constitution and its Issues and Challenges


Author: Sparsh Jain, first year student at Symbiosis Law School, Noida.

ABSTRACT

India is a Union of States.
Why is India termed as a Union of States rather than a Federation? This question has been raised time and again.
The federal system in India was not the result of an agreement among the various states like the United States of America, and also the states have no right to withdraw from this Union and therefore India is described as a Union of States rather than a federation unlike the United States of America. The federation is a union because it is indestructible. The purpose of this Article is to evaluate the federal and unitary nature of the Indian constitution keeping in mind the loop holes present in a Quasi-Federal form of Government that pose a threat to the sovereignty and integrity of the Indian democracy. There have been many debates regarding the nature of the constitution. The federal system followed in India is in a way unique and is customized according to the needs of a proper functioning democracy. Also establishing the supremacy of the Indian constitution and keeping the powers of the central and the state government in perfect check and accountability with the help of an independent judiciary.

Features and nature of the Indian constitution

The Indian constitution is a written constitution and is in fact the lengthiest constitution in the world. The constitution of India is adapted from various sources i.e., features are derived from the constitution of others countries such as The United States of America, United Kingdom, Canada, etc. whereas the structural part and a major chunk of it being derived from the Government of India Act of 1935 including features such as following of a federal scheme, judiciary, etc.
According to K.C. Wheare the constitution of India in practical terms is ‘quasi federal’ in nature or a federal constitution with unitary features or vice versa.
In a unitary government the powers and responsibilities are centralized and are vested within the central government.
i) Unitary form of government
Unitary features of the Indian constitution include the existence of a single constitution, single citizenship, flexibility of constitution, integrated judiciary and emergency provisions. The ultimate power lies within the central government.
The entire country is governed by a single constitution and despite the dual polity system there is a single citizenship system which means that all the citizens of India irrespective of the state they are born in or reside, enjoy the same right all over the country unlike the United states of America where there are different laws for different states.
ii) Federal form of government
Whereas in a federal government there is a division of power between the central government and the States both functioning as different entities and giving rise to Centre State relations.
Federal features included in the constitution of India are the existence of Centre-State relations, supremacy of the Indian constitution, rigidity of the constitution, independence of the judicial system and bicameralism.
The powers are divided between the Centre and the States but not equally and the division is in favor of the Centre and the residuary power also lies with the central government. The supremacy of the constitution is established with the help of an independent judiciary headed by the Supreme Court of India.
Dual polity system establishes a distinction that matters such as defense, foreign affairs, currency, communication and various other matters, fall under the purview of the central government whereas the state governments look after matters like maintain public order looking after the agricultural sector, health, local governments and so on and also attend to matters of regional and local importance.
A written constitution describes the limits within which the Central and State government operates and a written constitution is a must for a federal government. It avoids misunderstanding and disagreement between the two.
Challenges faced in a federal and unitary form of government
The loopholes or rather the misguided interpretation of the constitution of India pose a threat to its sanctity.
But the accountability and responsibility of governmental actions have only been seen on paper in recent time when the mixed form of Parliamentary system has been put to test time and again.
i) As mentioned in the Seventh schedule, in case of conflict over the legislation on any matter in the concurrent list the Centre will prevail , which can be a cause for tensions between the Central Government and the respective states.
ii) Challenges such as regionalism and centralization of power in the hands of the central government are matters of utmost concern.
iii) One other area of challenge is Article 200 of the Indian constitution and the emergency provisions under Article 352,356 and 360.
If invoked such Articles requires compulsory compliance by the states leading to a possibility for centralization of power which is an important concern for the states in case the power is misused.
Office of the Governor
The office of the governor has been time to time misused as per the interests of the central government thereby raising tensions among other states. The governor is appointed by the President of India and is vested with all the executive powers of the state government and it is the governor who appoints the Chief Minister of the State.
E.g., The Madras elections of 1952 when elections were held in the State of Madras. Although the United Democratic Front (UDF), a coalition of parties held 166 seats and were clearly in majority but the governor of state Sri Prakasa invited the congress party to form their government which they eventually did with C. Rajagopalachari as the Chief Minister of the then State of Madras.

Misuse of emergency proclamation under Article 356

Emergency provisions have also been misused to suit the need of various political agendas. The landmark judgment case of ‘S.R. Bommai vs Union of India’ in which put an end to the arbitrary dismissal of state and upheld the view that the proclamation under Article 356(1) is not immune from judicial review and that even the actions of the President of India can be struck down by the court of law if it feels that it is not in the best interests of the country. The main argument was that power to use a proclamation under Article 356 is not on subjective discretion or opinion, but on objective facts and the circumstances must exist to conclude that the relevant situation had risen in which the government of the state cannot be carried on in accordance with the provisions of the government. The supreme court then held that President’s satisfaction has to be based on objective material and not on subjective satisfaction of the President as argued by the Union of India. The supreme court with regard to the issue of federalism in this landmark judgement also held that the constitution of India has created a federation but with bias in favor of the Centre but within the sphere allotted to the states, they are supreme. Further in the Minerva Mills case, the supreme court held that the proclamation of a national emergency can be challenged in a court if the declaration was based on irrelevant facts or is absurd in nature and not necessary.

Amendment Procedures

The amendment procedures have been subject to criticism from time to time mostly due to the huge amount of power they provide to the central government leaving the states at the mercy of the central government.
The way we interpret the constitution changes with time and circumstances. A free will democratic country like India cannot function with a rigid and permanent constitution. The amendment procedures are adequately flexible to not being able to be exploited by the ruling party at the Centre and neither so rigid as to be incapable of being able to adapt themselves to the needs of the changing democracy.
But there are some provisions which lead to a centralization of power at the hands of the central government
Like the amendments of the constitution lies solely in the hand of the Parliament. The Parliament even has the power to abolish or form new states. A major part of the constitution can be amended by the Parliament alone and the consent of the state legislature is required in only a few cases. The power to initiate an amendment also lies solely in the hands of the Parliament.
If we look closely at the constitution of various countries like the Unites States of America, Switzerland, Australia, etc. they have what one might call a typical federal system. India adopted its idea of a federal government from the United States of America but the India constitution has incorporated a large number of unitary features tilting the power in the hands of the central government raising doubts and criticism from constitutional experts.
For e.g.; There is this one provision in countries like Australia and United States of America where the states are autonomous within their fields and do not have to go through the process of reserving a bill for the assent of any higher authority whereas in India the governor of a particular state has the power that he can reserve certain types of bills passed by the state legislature to which the President of India can withhold his assent as the President of India enjoys absolute veto in such matters.

Stability and absolute majority of the ruling party in the Parliament

A Parliamentary form of government does not guarantee a stable government. E.g.; Morarji Desai, Charan Singh, etc.
Also, when the ruling party enjoys absolute majority in the Parliament the cabinet might feel that they might not be held accountable for their actions and can get away with skewing the law and might exercise its power in an autocratic way as seen in recent times when the three farm bills were passed by the central government without prior approval from the states even though agriculture is a state matter. It is not compulsory to consult the states but it is preferred to discuss the farm bills with the states which will be impacted the most by them and the hastiness in which the laws were passed without any constitutional debate and meeting of the Parliament shows the type of unaccountability and autocratic power that comes when one party is in absolute majority.
Some other examples are the Indira Gandhi and Rajiv Gandhi when their respective government was in absolute power.

 

Origin of the current Parliamentary system

One of the main reasons for adopting the current Parliamentary system was that the constitution makers were somewhat familiar with it as they had seen that such a system was operational in India at the time of the British Raj. But it is not exactly the same. The basic structure might have been taken from the British one but they differ in various number of other aspects.
For example; the head of the state in India is elected and is a nominal head whereas in Britain the head of state enjoys a hereditary position.

Role of committees in shaping the constitution

Various committees have been formed over time to examine the Centre-State relations and to suggest amendments for the better functioning of the Indian federal democracy and these committees have indeed played a major role in overcoming the challenges which were acting as a roadblock to a more liberal and freer India we know today with federalism as the basic structure of the Indian constitution.
1) Administrative reforms committee
The administrative reforms committee was appointed in 1966 under the chairmanship of Morarji Desai and made 22 recommendations some of which included the establishment of an Interstate council under Article 263 of the Indian constitution and some finance related suggestions like transferring more financial resources to the states to reduce their dependency upon the Centre. But no action was taken by the central government on their recommendations.
2) Rajamannar Committee
The same happened with the Rajamannar committee which was set up in 1969 to suggest amendments to the constitution so as to secure more autonomy to the states. The committee mentioned reasons such as inadequacy of financial resources and dependency on the Centre for financial assistance as troublesome for the Centre-State relations and also pointed towards certain provisions in the constitution which conferred special unmatched power to the central government. They also recommended that an Interstate council should be set up immediately including one other important recommendation dealing with the issue that Article 356, 357 and 365 (dealing with President’s rule) should be abolished.
But none of the recommendations of the Rajamannar committee were implemented and were completely ignored by the central government.

3) Anandpur Sahib Resolution
The Anandpur sahib resolution in 1973 asked that the Constitution should be made federal in real sense and should ensure equal authority and representation to all the states. But their recommendations were also not accepted by the central government.

4) Sarkaria Commission
The major changes came after the formation of the Sarkaria commission. The commission found the structural and existing constitutional arrangements to be basically sound and in no need of change but felt that there was a need for changes in the functional aspects. The Sarkaria committee too recommended that a permanent Interstate council under Article 263 should be set up. The committee made 247 recommendations out of which 180 were implemented the most important one being the establishment of the Interstate council in 1990. They also raised the point that Article 356 of the Indian constitution dealing with the President’s rule should be used very rarely in extreme cases only as a last resort rather than being misused as a tool for partisan politics.

5) Punchhi Commission
In April 2007, the Punchhi commission was set up to look into the issues of Centre-State relations keeping in mind the overtime changes that had come in the political environment as well as the economy of India since the Sarkaria commission. The commission established the view that in recent times cooperative federalism will be the key for sustaining India’s unity and to promote social harmony and economic development in the future, the commission followed after the footsteps of the supreme court of India by recommending for incorporating the guidelines set forth in the landmark judgement of S.R. Bommai v Union of India to address the misuse of Article 356 as well as the frequently raised suggestions to abolish the emergency provisions involving President’s rule which has time and again been exploited for political agendas as well as to suppress the voice of the state governments.

Recent events

Recently various states are opposing the three farms laws recently passed by the Parliament. This is due to the reason because while states are legally entitled to have jurisdiction over the APMC Act, the Essential Commodities Act of 1955 bestows Centre with a wide range of powers to impose restrictions on warehousing and transportation of certain essential commodities by private parties. As for law regarding contract farming since the APMC acts governs the marketing transactions at state level, the decision on whether to permit contract farming too was to be the decision of the state government. Therefore, there are many such acts which overlap and give rise to loopholes in the Constitution raising the possibility of the law being skewed for political agendas.
Also, very recently despite opposition from the state of Kerala and a case pending in the Supreme Court regarding the handing over of the Thiruvananthapuram International Airport by the Airport Authority of India to a private entity, that is, Adani airports ltd, the Airport Authority of India on 19th January 2021 signed concession agreements with Adani airports ltd for operations, management and development of the Thiruvananthapuram international airport via PP mode for a period of 50 years.
The letter of the chief minister of Kerala to the civil aviation minister dated November 21, 2018 described the reasons that the state already had experience in running airports through its various organizations.
For e.g., the Kannur airport which has modern and state of the art aviation technology and various other facilities as well is being operated by the Kannur Airport Limited (KIAL) which is a state government sponsored company. Same is the case for the Cochin International Airport which is one of the leading airports worldwide is being operated by the Cochin International Airport (CIAL) which is also a state government sponsored company.
The Kerala high court had ruled in favor of the airport being under the control of a private entity but the Kerala government then filed an appeal challenging the decision after which the Supreme Court of India ordered for the matter to be remanded for a decision on merits and the state government in a statement halted all developments and proceedings regarding the lease of operation, management and development of the Thiruvananthapuram International Airport to Adani airports ltd. But here a few months later although the decision is not yet final and the matter is still in the hands of the court of law but still the airport authority of India went ahead and handed over the lease to Adani airports ltd.
In 2016, President’s rule was imposed in Uttarakhand during the term of the then Chief Minister Mr. Harish Rawat. The Supreme Court then based on the judgement of S.R. Bommai vs Union of India case asked the Centre to revoke the proclamation of the President’s rule in Uttarakhand and allowed Mr. Harish Rawat to assume the Chief Minister’s office once again.

Conclusion

In 1999, the central government headed by Shri A.B. Vajpayee had sacked the Bihar government headed by Smt. Rabri Devi on 12th February 1999. But by the power of the law and judicial supremacy, the central government was forced to reinstate the Bihar government on 8th march 1999.
Matters such as regionalism give rise to sentiments of Interstate hostility and sometimes can be a hurdle in the way of national interests including international diplomacy. Therefore, a strong binding power i.e., the supremacy of the central government is needed to keep the states in check and to even help them manage such problems. India is a country of many languages with different cultures and it is important to unite people from all over the country instead of dividing them among various states.
Since 1994, the accountability and a check on governmental policies has been increased and the idea that no one is above the law has been upheld time and again but still there are chances of misuse of power in case proper authority and supremacy of the constitution is not established and proper implementation of the laws is not taken into consideration.
And when such a question is raised whether or not such type of quasi federal system should continue or not the answer can be found in the constituent assembly debates answer that India as a country is an integral whole and divided into different states only for the convenience of administration and can function both as unitary and federal whatever the need maybe.
In S.R. Bommai v. Union of India, the Supreme Court of India characterized federalism as the basic structure of the Indian constitution. It upheld that although greater power has been conferred upon the Centre it does not mean that the states are mere appendages of the Centre and that they have an independent constitutional existence.
The point of concern is that during emergencies the power of the states are completely overridden by the Centre which can be destructive in nature if the power is exercised in an immoral way that might comply with the laws laid down by the constitution on paper but is not ethically correct and is a threat to the federal nature of the constitution.
Ivory Jennings described that Indian democracy should function as a federation with a strong centralizing tendency. Such a system depends on the government for its success and requires the government to function under the constitution in accordance with the letter as well as the spirit of the constitution. The supremacy of the constitution is expressed in the laws which prevail among the law-abiding citizens of India and depends on their enforcement by the court of law which have been provided with adequate power and authority to keep the powers of the Parliament in check and upholding the integrity and supremacy of the Indian constitution. Thereby maintaining a proper balance between the central and the state governments.


References

1. Article 1 of the Constitution of India
2. Constitutional assembly debates, volume VII, P. 43.
3. Universal’s guide to CLAT and L.L.B.
4. K.C. Wheare: Federal Government, 1951, P. 28.
5. Seventh schedule of Article 246 of the Constitution of India.
6. S.R. Bommai vs. Union of India (1994) and 44th Amendment Act of 1978
7. S.R. Bommai vs. Union of India (1994).
8. Minerva Mills vs. Union of India (1980)
9. Indian Polity by M.S. Laxmikanth.
10. Administrative Reforms Committee Report
11. Rajamannar Committee Report.
12. Sarkaria Commission Report.
13. Indian Polity by M.S. Laxmikanth.
14. Punchhi Commission Report
15. The Hindu Newspaper dated 16th January,2021.
16. https://www.thehindu.com/news/national/kerala/kerala-moves-sc-against-move-to-hand-over-thiruvananthapuram-airport-to-adani-group/article33170539.ece
17. Important Judgements that transformed India by Alex Andrews George.
18. Constituent assembly debates.
19. Indian Polity by M.S. Laxmikanth.
20. Ivory Jennings: Some characteristics of the Indian Constitution, 1953, P. 1.

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Siddhant
Siddhant
9 months ago

Very Good 👍👍👍👍