Nature of Indian Political Setup
"Federalism is not about States' rights. It's is about dividing powers to better protect individual liberty"
People say Indian Constitution is federal though some believe it is not truly federal rather it is Quasi-federal or federal setup with a unitary bias.
Whatever is the degree of federalism in the Indian Constitution, Supreme court of India has declared Federalism to be the basic nature or structure of the Indian Constitution (Bommai Case).
The following features of Indian political system makes India federal or atleast near to a federal setup -
- Written Constitution - A federal system can't be based on unwritten constitution. It has to have only written constitution. Since, India has a written constitution, it makes a ground to consider it a federal.
- Division of powers between centre and states - In a federal setup both the form of govt. i.e., centre and state are coordinating body where none is sub-ordinate to other as both derives their power from constitution and both are controlled by the constitution, i.e., constitution is dividing powers between centre and the state. Indian constitution also has divided powers between centre and the state (7th Schedule), thus making a point to believe that India is federal.
- Rigidity of constitution and its supremacy - In federal context constitution is binding on centre as well as state govt. and need not only centre alone nor only state alone to be in a position to amend the constitution, i.e., Constitution is rigid. Indian constitution is also rigid atleast in some important amendments that can have effect on the distribution of powers between centre and state. In the following 5 major areas of the constitution, if amendment has to be done under Article 368; then that amendment is first approved by both the houses of the parliament by a majority of two-third of the members present and voting as well as the majority of total strength of the house then at least 50% of the state legislatures must also approve the amendment by majority. Then only amendment bill is sent to the President for his assent. However, in other situations Parliament under Article 368 can bring an amendment without waiting for the approval of state legislatures. These 5 major areas are -
- Schedule 7 - which deals with the distribution of legislative subjects between centre and states and thus it is related to the distribution of power. This Schedule contains 3 lists - Union list (100 Subjects), State list (61 Subjects) and Concurrent list (52 Subjects)
- Representation of States in Parliament both in Lok Sabha and in Rajya Sabha.
- Article 54 (Which deals with the election of the President) & Article 55 (Which deals with the manner of election of the President); Article 73 (which deals with the extent of executive powers of the union) & Article 162 (which deals with the extent of executive powers of the state); Article 241 (which deals with High courts in UTs) & Article 279A (which deals with GST Council)
- Part 5, Chapter 4 (Union Judiciary); Part 6, Chapter 5 (State Judiciary) & Part 11, Chapter 1 ( Legislative relation between states and union)
- Article 368 - which deals with the procedure to amend the constitution
- Authority of the Courts - It involves two related facts -
- To resolve the disputes that may arises between centre and the state over distribution of power, there must be an authority independent of both to resolve the dispute and this run a smooth federation.
- This authority must be having a power to give final interpretation of the constitution whose decision was binding on centre as well as on states.
How is India different from the typical federal model of the world like US and Australia -
- US and Australia are considered as a benchmark of a federal polity. For example - There is an American Constitution dealing with federal administration and the states have their own respective constitution as well as administration.
- In US each state has its own Supreme Court and the Supreme Court of US has no administrative control over state judiciary.
- They grant dual citizenship
- In India, states have no separate constitution as well as we don't recognise Indian citizen as a citizen of state, i.e., India posses a single citizenship.
- India has a single unified Judiciary with Supreme Court at the apex.
- During emergency proclaimed by the President, the distribution of powers between states and the centre shifts in the favour of the centre. Thus, Indian constitution has been designed to function both as federal as well as unitary system as per the need of the time.
- The other side of this is that, Indian federation can change its shape and character which is considered as a serious flaw in the Indian federal design. However, this is not a flaw rather it is designed so as to protect the unity and integrity of the country. Such flexibility was required considering the historic political factions that India faces like separatist tendencies by some states and the threat of hostile neighbours which demands that centre be able to control the states in the interest of India's unity in some emergent situation.
- Under Article 3, Parliament can change the name, area and boundary of the state even without the consent of the state, i.e., In India states don't enjoy the right to exist and function as an independent unit of federation.
- Schedule 7 of the constitution distributes the legislative powers between the states and the centre. However, this distribution is strongly in the favour of centre. Since,
- Union list is not only have the largest number of subjects but also the subjects by nature are very-very important.
- Because of this distribution, centre is able to collect more revenue and states are dependent upon the centre for finance.
- over concurrent list, Parliament's claim is prior and superior.
- List 2, i.e., State list contains the subjects of the local importance over which state doesn't have exclusive claim. Under the following 5 extra ordinary conditions, Centre can also make law on these subjects -
- Article 249 - If Rajya Sabha passes a rsolution by a majority of not less than two-third of the members present and voting and it is very very much required in the National interest that the parliament should legislate over state subject. Then, Parliament assumes legislative jurisdiction over the specified state subject.
- Article 250 - During National Emergency Parliament assumes concurrent law making jurisdiction over the subjects mentioned under state list.
- Article 252 - If two or more states legislature passed a resolution authorising the Parliament to legislate over state subjects then Parliament gets the legislative jurisdiction over those state subjects mentioned, and the law will be remain valid to the states till the time the same law was repealed by the Parliament itself.
- Article 253 - Parliament can pass a law on the state list with or without the consent of the state which involved for the implementation of Foreign treaties.
- Article 356 - When President Rule is imposed on the state and the state assembly is not functioning then the Parliament gets the power to make laws on the state list for the state.
- Article 248 - Under Article 248, the residuary power of law making belongs to the Parliament.
- Article 256 & 257 - Under Article 256 and 257, Centre can issue administrative directions to the states including direction indicating the manner in which railway properties and other means of communication shall be maintained. These directions are binding upon the state and if ignored by the state, the centre can dismiss the state government under Article 365.
- Office of Governor - Under Article 155, governor of the state is appointed by the President and he holds the office during the pleasure of the President, i.e., centre is in the position to influence the governor and by controlling the governor, centre can easily influence the states.
- All India Services - Under Article 312, Rajya Sabha can authorised the Parliament to create one or more new All India Services. All India Services officers are appointed and trained by the centre. Though the officers from All India Services functioned at the senior most position in the state administration, their longer control lies in the hands of the centre. Thus, through All India Services centre is in the position to influence the states.
- CAG - CAG audits the accounts of both union as well as state government. He is appointed by the President and removed by him with the approval of the Parliament. Many a time, states complained the biased nature of his office against the state.
- Election Commission of India - Constitution has provided only for a common and independent Election Commission of India for holding free and fair election for the election of Parliament as well as for state legislature. Many a time, States complained about the biased nature of election commission towards the centre. In a true federal setup, there would by two separate bodies rather than one for this job. (Similar situations stand true for other bodies like CBI, ED, etc)
- A single unified judiciary - Constitution provided for a single unified judiciary with Supreme Court at the apex. This is very much unlike the American federal setup where each state has its own judiciary with respective Supreme court.
- Unequal representation of states in Rajya Sabha depending upon the population of the states weakens federal spirit, beside 12 nominees of the President (Union) in Rajya Sabha goes against federal spirit. Unlike America where house of State (Senate) holds equal presence of all states irrespective of their size and population.
On account of all the above points, we can conclude that Indian federal structure has got a strong unitary bias and it differs much from the typical federal design seen in US and Australia.
India is no doubt a federal but we are a federation of a own type, i.e., India is federation sui-genesis.
According to Dr. BR Ambedkar, two big problems faced in a federal setup were rigidity and legalism. Thus, Indian constitution through design has features like federation to some extent but avoided using the term federation explicitly and prefer to call India officially as "Union of States" rather than Federation of States.
Difference between Unitary and Federal form of Government
Federal Polity
- Two forms of government co-exists and none of them is inferior to other since both (Centre and State) derives their powers from the Constitution.
- There must be a written constitution which is rigid and it must be supreme and it must specifically dividing the powers and jurisdictions between the federal government and its units.
- There has to be an independent judiciary as an arbitrator of disputes between the Centre and the States over distribution of powers to ensure that the federal spirit is not disturbed.
Unitary Polity
- There exists one supreme government, i.e., Centre though state government are there but they were only the administrative wings/arms of the Centre working as per the directions coming from the Centre.
- There may be a written or unwritten constitution and it has to be flexible in nature with parliament as supreme authority.
- Judiciary may not be very powerful. For example, in British Unitary setup the British judiciary can't declare any law passed by the British parliament as unconstitutional or void, since in unitary the fact comes by default that the parliament is supreme.
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