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Federalism: New Dimensions in Indian Context

By : Praveen Gupta on 06 February 2011 Report Abuse Print Print this
 



Introduction:

   

The constitution of India is not an end, but a means to an end, not mere democracy as a political-project but a socio-juridical process which opens up through a humanist, radical social-order, the opportunity to unfold the full personhood of every citizen.

   

The constitution of India in which the Union of India is permanent & indestructible.

   

Both the Centre & the states are co-operating & coordinating institutions having independence & ought to exercise their respective powers with having independence & ought to exercise their respective powers with mutual-adjustment, respect, understanding & accommodation. Tension & conflict of the interests of the centre & the respecting units is an integral-part of Federation. Prevention as well as amelioration of conflicts is necessary. Thus, the Indian-federation was devised with a strong-centre. Federalism with a strong centre was inevitable as the framers of the Indian-constitution were aware that there was economic-disparities as several-areas of India were economically as well as industrially for behind in comparison to others. The Nation was committed to a socio-economic revolution not only to secure the basic-needs of the common-man & economic units of the country but also to bring about a fundamental-change in the structure of Indian-society in accordance with the egalitarian-principles.


 

Meaning

 

 

The term ‘Federalism’ originate From the Latin word “Foedus” meaning ‘treaty’ or ‘covenant’. Some free states bound together by agreement constitute a Federal-state.

   

Federalism is a system of government of a country under which there exist simultaneously a federal or central government (legislature & executive) & several state legislatures & government as contrasted with a unitary state both federal & state governments drive their powers from the federal-const., both are supreme in particular sphere & both operate directly on the people.

 

Definition

 

Federation is a political-concept in which a group of members are bound together by ‘covenant’ with a governing representative head.

 

A system of National-government in which power is divided between a central authority & a number of regions which delimited self-governing authority.

 

A system of governance in which distribution of power of constituent-units is ensured by a written-constitution, having independent judiciary to resolve, state of local-levels. Under the principal of government, power & authority is allocated between the national & local-government units, such that each unit is delegated a sphere of power & authority only it can exercise while other powers must be shared.

 

 

Constitutional-Intent

 

Being aware that notwithstanding a common cultural heritage, without political unity, the country would disintegrate under the pressure of Fissiparous forces, the constituent Assembly addressed itself to the immensely complex-task of devising a union with a strong centre. In devising the pattern of the central –state relations they were influenced by the constitution of Canada & Australia which have a parliamentary-form of government. The Government of India act, 1935 was also relied upon significant changes. The constitution cannot be called ‘Federal’ or ‘Unitary’ in the ideal-sense of the terms.

 

 

According to artICLE 1 of the Constitution:

 

“India, i.e. Bharat will be the Union of States”.

 

The Constitution, thus postulated India as a union of states & the consequently, the existence of Federal-structure of governance for this union of states becomes a basic structure of the union of India.

 

Dr. B.R. Ambedkar, the principal-architect of the constitution observed

 

‘the use of the word union is celibate. The Drafting committed wanted to make it clear that though India was to be a federation, the federation was not a result of agreement by the states to join in the federation & the federation not being the result of an agreement no state has a right to secede from it. Though the country & the people may be divided into different states for convenience of administration the whole country is one integral whole, its people a single people living under a single imperium derived from a single –source’.

 

Necessity of Federalism:

 

(i)    Emergence of different-set of states:

 

    Before independence, the earliest from of political-organization was not federal but unitary. But after independence, the pressure of economic, political & social-circumstances which compelled unitary-states (generally Monarchical) to enter into alliance with other states for meeting common problems which initially related to ‘defence’. Require a special-type of government which leads to federalism.

 

(ii)    Scientific-development:

 

    Scientific & technological-developments & increased economic interdependence have changed the scenario of the past, which brought the emerging –states (independent) on the same- platform. The exchange of Scientific-technologies between the development of these states. Scientific & technological-development brought a revolution during the era of federalism.



(iii)    End of British-Colonies:

   

In India, the historical-process to create the federal-system was different. For long, before 1935, British India has been administered on a unitary basis. There existed a unitary-system. But after the end of British-colonies, the unitary system was replaced by a federal-system. The present federal-system was built on the foundation of the 1935 system.

   

The past history of India establishes that in the absence of a strong Central-Government. the country soon disintegrates. This belief was strengthened by the recent-portion of the country. Therefore adequate precautions have to be taken against any such future contingency by making the centre strong in Indian-Federalism.

   

Owing to its vastness of territory & variety of people, India could not be governed efficiently as a unitary-state & so a unitary constitution was out of question.

   

India, such a large country with diverse-cultures, religions, languages, tribal & ethnic differences & even marginal racial variations, with historical, geographical & political-divergences, cannot bear true faith with democracy & collective freedom without authentic Federal Features.



 

Components of a Federal –Constitution:

 

The legal-test of federalism, when analyzed, leads to the following broad features of a federal-constitution.

 

(i)    Distribution of powers (Dual-polity):-

 

An essential feature of every federal-constitution is the distribution of powers between the central-government & the governments of the several-units forming the federations.

   

Federation means the distribution of the power of the state among a number of coordinate bodies, each originating in and controlled by the constitution. (Dicey)

 

(ii)    Written-Constitution:

 

A federal-state derives its existence from the constitution, just as a corporation derives its existence from the grant or statute by which it is created. Every power (executive, legislature or judicial) whether it belongs to the central, or to the component-states, is subordinated to & controlled by the constitution. Therefore, a federal-state requires a written-constitution for the obvious reason that in order to be workable & stable & the limitations, must be precisely defined by written-instrument. Hence, it will be practically impossible to maintain the supremacy of the constitution, unless the terms of the constitution have been reduced into writing.

 

(iii)    Supremacy of the Constitution:

 

This means that the constitution should be binding on the federal & state-government. Neither of the two governments should be in a position to override the provisions of the constitution relating to the power and status which each is to enjoy.

   

This requirement is satisfied if the supremacy or overriding authority is accorded only to the provisions relating to the division of power.

 

 

According to K.C. Wheare:

 

   

“The Supreme –Const. is essential if government is to be federal the written-const. is essential if federal-government. is the work well”

 

(iv)    Rigidity of the Constitution: - (Non unilateral change)

  

A natural corollary of a written-constitution is its rigidity. A constitution which is the supreme-law of the land must also be rigid. In a rigid constitution, the procedure of amendment is very complicated & difficult. This does not mean that the constitution should be legally unalterable. The constitution provides a process for changing its provisions called “Amendment’. It simply means that the procedure of amending the constitution should not remain exclusively with either the centre or state-Governments means “No Unilateral-change”.

 


(v)    Authority of the courts (Interpretation by Judiciary) :

 

The distribution of powers made by the constitution must be guarded by the judiciary. Which is to interpret the constitution as the ‘Fundamental-law’ of the lands to enforce its provisions against both the federal and Regional-governments and to invalidate any of their acts which transgresses the limitations imposed upon them by the constitution.

  

The constitution of India appears to have all the above mentioned essential-features of the federal-constitution. The most important feature of a federal-constitution is the distribution of legislative power between the centre & the sates.

  

The Constitution of India has adopted the scheme of the Government. of India-Act 1935 with minor changes.



Distinctive Federation


 

    The federal polity, which our constitution establishes, contains, as compared with other federal-constitutions, several distinctive features. These are:


 

(1)    No Dual citizenship:

   

The constitution of the USA allows dual citizenship-the citizenship of the USA & the citizenship of the state in which he is domiciled as opposed to this, the Indian-constitution does not provide dual citizenship. There is a dual-polity with single-citizenship. There is only one citizenship for the country. There is no state citizenship. Every Indian has the same rights of citizenship, no matter in which state he resides.


 

(2)    Single-Constitution:

 

The state in USA has the right to make their own constitution. In India no such power is given to the units. The constitution of the Unions of the states is a single-from fro which neither can get out & within which they must work.


 

(3)    In emergencies the constitution can become Unitary:

 

In normal times, the const. is framed to work as a federal-system but it times of war & other national –emergencies it is designed to work as if it were unitary.  

 

Dr. B.R. Ambedkar says:

‘The Draft Constitution can be both unitary as well as Federal according to the requirements of time & circumstances’.


 

(4)    Minimizes Rigidity & Legalism:

   

Federation is said to be a weak form of government. Two reasons are described for the weakness of a federal-government, namely Rigidity & Legalism. A federal-const. is necessarily a written const. & a written-const. is invariably a rigid const. It cannot be changed by ordinary-process.

 

    Legalism in a federal const. means the necessary predominance given to the judiciary in making it the arbiter of the validity of the laws enacted by the federal or state-legislature.

   

The Indian Constitution makes provisions to minimize Rigidity & Legalism in it. The process for the amendment of the constitution is less rigid that what is found in other federal-constitutions except that the basic –feature of the constitution become unamenable. Out constitution provides a long–list of Concurrent-subjects. Power is given to parliament to legislate on exclusively state subjects under certain circumstances.

 

(i)    When a subject in the List becomes a matter of ‘National-importance.

 

(ii)    When the president has proclaimed an emergency.

 

(iii)    If the state consent to such exercise of power by Parliament &

 

(iv)    When it becomes necessary to give effect to ‘International-agreement.

 

(5)    It maintains unity in basic-matters: -

 

The Indian-constitution adopts the following three means to maintain administrative & legislative unity:

  1. A single-Judiciary.

  2. Uniformity in fundamental-lows, civil & criminal &common all India services.

  3. Common All India services.



 

In our constitution, the High court & supreme-court from a single integrated judiciary having jurisdiction over all cases arising under various laws-union state, constitutional, civil & criminal. To eliminate diversity of laws, codes of civil & criminal laws are placed in concurrent list.

 

To maintain uniformity in administration, the constitution provides that there shall be All India services, including Judicial-services recruited on an All India basis which shall be common to Union & States. The members of these services shall be placed in key-posts of the Union & states.

 

(6)    State & Union not rivals:

   

Our constitution does not set-up the states as rivals to one another or to the union. Each is intended to work harmoniously in its own-sphere without disturbing by other, with an over-riding power of the Union, when it is necessary in the public-interest.  


Indian-Experience:

 

In the following constitutional –provisions, it is pointed-out, that the Indian-Constitution contains the modifications of the federal principle:

 

(i)    Parliament power to form New-States & alter boundaries of existing states: (Art 2&3)

 

Art.2: gives complete discretion to parliament to ‘admit’ or ‘establish’ new-states on suck terms & conditions as it thinks fit. Such terms & conditions must, however, be consistent with the foundational-principles viz, the basic-structue of the constitution.

 

Art.3:    Provide that, “parliament can by unilateral-action increase or diminish the area of any state or alter the boundaries of any state or alter the name of any state.”

    The very existence of the State thus depends upon the “Sweet-will of the Union Government.

 

The power conferred on the Union-parliament to make territorial-adjustments is better explained on historical-basis:

 

The Government. of India Act, 1935, which had for the first-time introduced the federal-system in India deliberately created the constituent-units of the federation, although they had no organic-roots in the past. The makers of the present constitution were aware of peculiar-condition under which & the reasons for which the states were formed & their boundaries were defined & so they deliberately adopted the provisions in Art. 3 with a view to meeting the possibility of the redistribution of the states territory after the integration of the Indian-States.

 

    The changes thus contemplated (work-our) illustrate the working of the peculiar & striking feature of the Indian-Constitution.


 

(ii)    Parliament’s-power to make law on State-matters:

 

Art 249:Provides that, “if the upper House (Council of states) of the Union-parliament passes a resolution, supported by not less than 2/3 rd of the members present & voting, that it is necessary in the ‘National-Interest’ that parliament should make laws with respect to any matter enumerated in the state-list, it would be competent for parliament to make laws for the states with respect to that matter to be operative for such period not exceeding 1 year, as may be specified therein.

    In normal-course this cannot be done unless the Constitution is amended.

This power is given to parliament by the council of states itself by passing a resolution supported by 2/3rd majority of the members present. Thus, in effect by this device the constitution is amended by the agreement of majority of the states.

 

    Thus Art. 249 does not place the states in a subordinate-position .

Art 250: Provides that, “parliament shall have the power to make laws for the whole or any part of the territory of India with respect to any matters enumerated in the state-list when the proclamation of emergency is in operation.”

 

Art 251: Provides that Parliament have the power to make laws on State-matters under the Art 249 (in national-interest) & Art 250 (under Proclamation of emergency). In both cases the power of the state legislature to deal with matters falling in the state list is not abrogated. The Legislature of a state can thus make a law on those matters which has been taken over by the Union-Legislature.

But in case of a conflict or inconsistency between a Union & a State-law, the former will prevail.

 

Art. 253: Provides that” parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference.”

 

Ex: Legislations relating to T.R.I.P.S., ensuring India’s conformity with WTO membership, are being enacted under this provision.

    Questions are also being raised about the legal-tradition in our country under which treaties become operative & binding without prior participation of parliament in their making. They can be entered into & implemented by the Union executive in exercise of its executive power under Art. 73

 

(iii)    Administrative-relations between the Union & States :

 

The Union Government is empowered to issue administrative-directions to the states in relation to certain matters, these directions are binding on the states:  

 

Art: 256: Provides that, it shall be the duty of the state to exercise its executive-powers so as to ensure that due-effect is given with in state to every Act of Parliament & to every existing law which apply in the state. This is a constitutional-duty of every state. The Govern of India is entitled to given directions to the state-government regarding the duly which is imposed upon it by this article.

 

Art 257: Provides the control of the Union over state in certain cases:

(a)    The manner in which the executive-powers of the state shall be exercise so as not to impede or abridge the executive-powers of the Union.

(b)    The construction & maintenance of means of communication, declared to be of national or military-importance; &

(c)    Measures to be taken for the protection of Railways within the start.

The authority given to the centre to enforce its administrative-directions against a state which fails to comply with them is indented to “ensure-harmony” btw the Union & the state. If a state exercises its executive authority as to impede or obstructs the execution of Union-laws or services, that states exhibits a revolt against the central government & hence to “maintain the integrity of the country”. It is right that the Union has been empowered to intervene.


 

(iv)    Distribution of Legislative-power between the Union & the states (Article 246)

 

The Constitution in making the distribution of legislative-powers that the union & the states, follows the government. of India 1935. It enumerates various items of legislation in three-lists given in 7th Schedule:

List I            The Union List

List II            The State List                 7th Schedule

List III        The Concurrent List

 

The parliament has exclusive powers of legislation with respect to 97 items in List I

The State Legislatures have exclusive-powers with respect to 66 items in List II

Both Parliament & state Legislatures can make laws in respect to 47 items in List III.


 

Residuary powers of Legislation : (ARTICLE 248)


 

    Parliament has exclusive power to make any law with respect to any matter not enumerated in the concurrent. List or State-List. Such power shall include the power of making any law imposing a tax not mentioned in either of those lists.

 

This Art. Assigns “Residuary-powers” of legislation exclusively to parliament Entry 97 of List I, Schedule VII to the constitution read with art. 246(i) also lays down that parliament has exclusive-power to make laws with respect to any mater not given in List II or List III, including any tax not mentioned in either of those lists.

 

    Complex modern governmental-administration, with the advancement of society, expanding horizons of scientific & technical-language, in a federal-set up providing for distribution of legislative-powers coupled with the power of judicial-review may raise such situations that a subject of legislation may not squarely fall in any specific-entry in three list.

 

    In such a situation parliament would have power to legislate on the subject in the exercise of residuary-powers under this Article & Under Article 246 (1) read with Entry of List I.


 

Emergency-provisions

 

Art. 352 : Provides that “if the president is satisfied that a gave emergency exists where by the security of India or any part of the territory is threatened, weather by ‘Wan’ or ‘external’ aggression or ‘armed-rebellion, he by proclamation, make a declaration to that effect.

 

When the proclamation of emergency is made under Ar. 352, the normal distribution of power between the centre & the states undergo a vital-change.

   

Parliament is empowered to make laws with respect to any matter enumerated in the state-List.

 

The centre is empowered to give directions to any state as to manner in which the state’s executive power to be exercised.

 

    Further, the president may be order, direct that all or any of the provisions of Article 278 to 279 relating to distribution of revenue between the centre & the state shall take effect with such exception or modifications as he thinks fit.

 

Art 356: Provides that, “ if the president, who is the head of the Union-executive is satisfied that the Government. of a State cannot be carried on in accordance with the provisions of the constitution he can issue a Proclamation to that effect. He can then assume all the functions of the government of the state, including the powers of the Governor.”

    The only exception is that he cannot assume any of the powers exercisable by the High Court.

 

Art 360: Provides that, “if the President is satisfied that a situation has arisen which threatens the ‘Financial stability’ or credit of India or any of its units, he can declare a Financial-emergency. In such an event the can issue necessary directions, including order for the reduction of salaries & Allowances of public-servants belonging to union & the states. All Money-bills passed by the state-legislatures during the period of financial-emergency are also subject to the control of the centre.


 

Effect of Emergency-provisions on Federalism:


 

The emergency-provisions which come into operation only on the happening of the ‘specific-contingencies’ do not modify or destroy the federal system. It is rather a merit of the constitution that it visualizes the contingencies when the strict application of the Federal-principle might destroy the basic assumptions on which our constitution is built.

The Indian constitution by adapting itself to the changed circumstances strengthens the Government in its Endeavour to overcome the crisis.

   



 

In an emergency, the behavior of each federal-constitution is very much different from that in peace time.

 

    For example in Swiss Constitution, which is a federal Constitution expressly empowers the federal government to intervene on its own initiatives if the external-disorder might occur which endanger the safety of the nation.  

 

    In USA, Australia & Canada do not expressly provide for enlargement of federal power during the period of emergency, but during the two world-wars, the defense power of the Federal Government was given so extension as interpretation by the courts, that these countries behaved more likely unitary than federal-state.

   

Thus every constitution implies devices for its own-survival.



Appointment of Governors

 

Art 155:    The governor of a state shall be appointed by the president by warrant under his hand & seal.

 

Art 156:    The Governor shall hold office during the pleasure of the President.

 

The Governors of the states are appointed by the President, they hold their office during his pleasure & to extent they exercise their power in their discretion, are answerable to him.

 

The Governor is only the constitutional head of the state who shall normally act on the advice of his ministers. There are provisions in the constitution under which the Governor is required to send certain state-laws for the assent of the President. The President has power to veto those state laws [Art 200,280 (2) ].

 

The power of veto given to president is intended to be exercised only when a state-law will adversely affect the interests of other states or of the country as a whole.

 

The only example of veto-power used by the president is Inre, Kerala educational Bill Air 1958, but here also the Centre obtained the Advisory-opinion of the Supreme Court before sending it back to the state-Legislature for suitable-amendments in the light of the court’s-opinion.

Judicial Interpretation of Federation


 

West Bengal versus Union of India

 

The debate whether India has a ‘federal-constitution’ ‘Federal-Government’ was discussed at length by the apex-court in West-Bengal v/s union of India.

 

The main issue involved in this case was the exercise of sovereign-powers by the Indian states. The legislative-competence of the parliament to enact a law for compulsory-acquisition by the union of Land & other properties owned by the state & the sovereign-authority of states as distinct-entities was also examined.

 

The Supreme Court held that the:

 

“Indian- Constitution did not propound a principle of Absolute-Federalism”. Though the authority was decentralized this was mainly due to the arduous-task of governing the large-territory.

    The Court outlined the characteristics, which highlighted the fact that the Indian-constitution is not a “traditional-federal constitution.”

  1. Firstly, there is no separate-constitution for each state as is required in a federal-state.

  2. Secondly, the constitution is liable to be attend by the union parliament alone & the units of the country i.e. the states have no power to alter it.

  1. Thirdly the distribution of powers is to facilitate local-governance by the States & National policies to be declared by the Centre.

  1. Lastly, which contains internal checks & balances, the Indian constitution renders supreme power upon the courts to invalidate any action violative of the constitution.

 

The Supreme Court Further held that both the legislative & the executive-power of the states are subject to the respective supreme-power of the Union. Legal sovereignty of the Indian nation is vested in the people of India. The political-sovereignty is distributed between the Union & the states with greater weightage in favour of the Union.

 

Thus, the learned Judges concluded that the structure of the Indian-Union as provided by the constitution one is centralized, with states occupying a secondary-position. Hence the centre possessed the requisite-powers to acquire properties belonging to states.

 

On the other hand, Justice Subba Rao, the great champion of state-rights expressed his minority view has consistency with the federal-scheme under the Indian-constitution. The Indian Constitution accepts the federal-concept & distributes the sovereign-powers btw the union & the states.


 

State of Rajasthan versus Union of India

 

    The next landmark case where the nature of the Indian-constitution was discussed at length. In this case, the learned Judges state that even if it is possible to see a federal structure behind the establishment of separate executive, legislative & judicial-organization in the states, it is apparent from the provision illustrated in Article 35 that the Union Government is entitled to enforce its own-views regarding the administration & granting of power in the states.

   

The extent of federalism of the Indian-union is largely waterned down by the needs of progress development & making the ratio integrated, politically & economically coordinated & socially & spiritually uplifted.

 

    In conclusion, the Apex-court held that it was the right of the Union parliament to issue directives if they were for the benefit of the people of the state & were aimed at achieving the objectives set out in the preamble.

           

 

State of Karnataka versus Union of India

 

    The Supreme Court held that, “our constitution has, despite whatever federalism may be found in its structure, so strongly unitary-features also in it.


 

Keshvanand Bharti versus State of Kerala

   

The basic structure thesis case, some of the Judges in full Constitutional Bench expressed federalism as one of the basic-

  • Features of the Indian –Constitution.

 

S.R. Bommai versus Union of India

 

    Four opinions were given, expressing varying views:

 

Justice Ahmadi: opined that in order to understand the true-nature of the Indian-constitution, it is essential to comprehend the concept of federation. The essence of the federation is the existence of the union & the states & the distribution of power between them.

    The significant absence of expressions like ‘federal’ or ‘federation’ in the constitution, the powers of the parliament under Articles 2&3 in the constitution powers conferred to meet emergency-situations, residuary powers, powers to issue directions to the state, concept of single-citizenship & the system of integrated judiciary all these provisions create doubts about the federal-nature of Indian const. Thus, it would be more appropriate to describe the const. as Quasi-Federable or Unitary rather than federal-const in the true nature of the term.

 

Justice Sawant & Kuldip Singh: gave opposite view

    They two regarded “Democracy & Federalism as essential features of the Indian constitution. The overriding powers of the centre in the event of -----emergency do not destroy the federal-character of the Indian-constitution. They aid, “every state is constituent political unit & have an exclusive Executive & Legislative elected & Constituted by the same process as the Union Government. The judges justified the use of power of president (Art 35)

 

Justice Ramaswamy opined that

 

    The units of the federation had no roots in the past & hence the constitution does not provide mechanisms to uphold the territorial integrity of the state above the powers of the parliament. He declared the Indian constitution as “Organic-federalism”, designed to suit the parliamentary from of government the diverse conditions prevailing in India.





 

Justice Jeevan Reddy & Agarwal opined that

 

    The expression Federal or Federal-Form of government has no fixed meaning the constitution is also ‘distinct’ in character, a federation with a bias in favour of the centre. But his Factor does not reduce the states to within the sphere allotted to them the states are supreme.












Rajamannar Commission

 

    In 1969, the Government. of Tamil Nadu, dissatisfied with the constitution, appointed a Rajamannar Committee, “to examine the entire question regarding the relationship btw the centre & the states in federal set up, with reference to the provisions of the constitution of India & to suggest suitable amendments to the constitution so as to secure to the states the utmost autonomy”

 

    The committee in its report issued in 1971 criticized certain aspects of the Indian-constitution because they were not reconcilable.

 

    The Committee accepted the position that the power vested in the centre “does not reduce the states of the state to that of administrative-units in a unitary government as in the days of the British role.

 

    The committee suggested some modifications in the constitutional-provisions relating to the distribution of legislative & taxing powers emergency etc.

 

    The proposals made by Rajamannar Committee suffer from an extreme over-statement of the case for the state-autonomy.

    These proposals did not evoke much public-enthusiasm & were endorsed neither by any state-government nor by any All India political party & the report became a dead-letter.

 

Sarkaria-Commission

 

    In 1983, in response to an insistent demand to review the Central-State relations, the central government appointed the Sarkaria Commission under the chairmanship of Justice R.S. Sarkaria, a retired Judge of a Supreme Court. The limitations on the commissions-term of inquiry was that, in making its recommendations, the commission was expected to ensure that they were with in the constitutional-provisions which safeguard the independence, unit& integrity of the country.

 

    The commission presented its report in 1988.

 

    It has rejected the demand for curtaining the powers of the centre saying that a strong centre is necessary to preserve the unity & integrity of the country.

 

    The commission’s view is that there is no need for drastic changes in the existing-provisions of the constitution.

 

    It its view the fundamental-provisions of the constitution have done reasonably well &with stood the stresses & strains of heterogeneous society in throes of change.  



 

Recent developments in Indian-Federalism

 

1.    Firstly, the 73rd & 74th amendments of the Constitution in 1992 have created a third-tier of local-governments i.e. the panchayats & Municipalities ofcourse these amendments have no impact on central state relations but they encourage federal-tendencies at the base.

 

2.    With reference to Article 356, the Supreme Court in S.R. Bommain versus union of India emphasized the federal-character of the constitution & has imposed several procedural restraints on the exercise of power by the centre under the Art.

 

3.    In quick succession, once in 1987 & again in 1998, the president has asked the central-Cabinet to reconsider its advice to impose. Presidents role under Article 356. On both occasions the cabinet dropped its recommendations. The Union-Government has become very cautious in exercising its power under Article 356. For quite some-time now the power has not at all been exercises.

 

4.    With the installation of “Coalition-Government “ at the centre since 1996 consisting of political parties ruling in different stats, the central government has always to seek the cooperation of the states.

This has changed the real-politics of the country which is not moving towards a federal-government even through the constitution may not be federal in the classical-description of K.C. wheare.

 

5.    A centre state commission has again been constituted in 2007 which is to look into the developments since the last commission, arising particularly in the light of globalization.


 

Co-operative –Federalism & Organic Federalism

 

Where the units or states & the federation do not compete for power but co-operate through various instrumentalities to promote the common purpose is known as cooperative-federalism. The present stage in India can be described as ‘Organic-Federalism, where the federations the units function as a part of one organism to achieve the common-governmental purposes. The lessons to be learnt form the recent-developments & the pressure of Circumstances that developed together with the large-scale interdependence of the states in many matters, had really indicated a case for organic-federalism. There are strong organic-Filaments-constitutional, financial & administrative, which may be relied upon to uphold the unit of India.

For example: Several industrial establishments are financed & managed by the Union Government, but are operating within the territories of the unit-states; & various nation wide agricultural-operations in the matters of improving technology, seeds etc.



 

Comparative Study of Federalism


 

The U.S.A Constitution has been regarded as the ‘epitome’ of the classic federalism. America started on its Federal carrier with a weak-centre & emphasis on State’s rights. The reason was that the U.S constitution came into being as a result of a voluntary compact among the pre-existing states which conceded rather limited-powers to the Centre. A similar process occurred in Australia.

 

Also, the US- constitution was the product of the “laissez-Faire” era which signified ‘minimum-government’ & ‘maximum-private’ enterprises.

 

In course of time, however things have changed. The powers of the centre have expanded since 1787 & correspondingly the powers of the states have shrunk.

 

This has been achieved without any explicit-amendment of the const. but through ingenious legislative devices & also through judicial Activism.

 

    Now in present context, the stats in the U.S.A are co-ordinate with the central government. as there definitely-weaker vis-à-vis the centre. The process has been aided by such factors as tense international  situations, wars, vat economic & technological-developments, replacement of laissez faire by the social-welfare etc.

Canada

 

    The Canadian-constitution, definitely told an accent on the centre. In course of time, however the privy-council, by its process of interpretation weakened the centre & raises the provinces. This was the result of assertion of bilinguism & biculturism by Quebec (a French majority state). The central-power to veto the provincial-legislation has also come to be used sparingly as a result of growth of conventions.

 

    On the whole, therefore, the provinces in Canada have grater freedom of action than the other units in other units in other federations & this has at times been inconvenient & embarrassing to the centre, primarily in the area of foreign –relations & economic-matters.

 

India

 

    The Indian-federalism was not a result of a compact between several sovereign-units but a result of “Conversion of a unitary system into a federal-system”. Here the movement has been from unity to union. From unitarism to federalism, unlike other countries where the process has been for separate-units to come together to from the federal-union In India, it was rather the reverse process viz. “to convert a unitary constitution into a federal-constitution.


 

Conclusion

 

Dr. B.R. Ambedkar, one of the chief-architects of the Indian Const-said: “Our constitution would be both Unitary as well as Federal according to the requirements of time & circumstances.

    In historical as well as present context, the above statement is fully correct because: federalism is not static but a dynamic concept” it is always in the process of evolution & constant adjustments from time to time in the light of the contemporary needs the demands being made on it.

    Constant discussions & negotiations between the centre & the states in various for a can help in removing frictions & difficulties in the area of inter government –cooperation.

    For making Indian –Federalism more robust & viable system the differences between the centre & the state must be sort out so that India may successfully meet the great-challenges of difference, external & internal –security & socio-economic development.

    At lost, it is very necessary that neither the federal set-up becomes unitary not that it becomes too lose & weak affecting the unitary & integrity of the nation.





 

Bibliography:

Primary sources

Books:

  1. Indian Constitutional law: prof. M.P. Jain

  2. Indian constitution : U.N. Shukla

  3. Constitutional law of India: Dr. J.N. pandey

(II) Secondary Sources

Websites:    (i)    www.legalserviceindia.com

        (ii)    www.ebc-india.com

        (iii)    www.thehindu.co.in

Newspapers:

  1. The Hindu

  2. The Indian-Express


Source : ,



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3 Comments for this Article



Bishwajit

Bishwajit

Wrote on 20 June 2011

Very Good Keep it up



Sarvesh

Sarvesh

Wrote on 05 March 2011

A very lucid way of elaborating the concept of fedralism. Waiting for your next resarch work on this web site. Best Wishes.



Member (Account Deleted)

Member (Account Deleted)

Wrote on 07 February 2011

Theory remains same except minor variations caused by invironment. In India need for change in provisions of Constitution is not the issue, the issue is to change the power graving tendency of intruders amongst politicians and burocrates.












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