Does India believe in a mythical notion of federalism?

Author: Neeraj Kumar Paswan

3rd year B.A.L.L.B.(hons.)

The West Bengal National University of Juridical Sciences

This paper endeavors to discuss not just general conception of federalism in India but also juxtapose this discussion in the current political climate involving the enactment of the amendment to Article 370.

In constitutional law; “Federalism is commonly used to express a league or compact between two or more states. Belonging to the general government or union of the states. Founded on or organized under the constitution or laws of the States.”[1] K. C Wheare gave a traditional concept of federalism. In order to assess whether a constitution is federal or not, Wheare applied the test as follows:

"The test which I apply by overlining some questions, such as: Does a system of Government embody predominantly a division of power between general and regional authorities, each of which in its own sphere, is coordinate with the other and independent of them? If so, the government is federal”[2]

There are many theories that state certain conditions for a federal structure:[3] (i) A written constitution that lays down the different powers for state and central government. (ii) There should be a provision that the constitution should not be amended unilaterally either by central or state/regional government, it should only be amended by the joint action of both. (iii) There should be an independent judiciary, which settles the conflicts between the centre and state. (iv) life of citizen can be governed by both government without the interference of each other.(v) there should be proper distribution of resources, handled by different governments.

In India the federal polity which was created was totally different from America, In India, there was no feeling among different sovereign political entities to get together and create a federal authority. After getting independence, it was a challenge to bring all the states together. One of the biggest concerns of the drafting committee was to make India a strong entity on the international level. In order to avoid civil strife, the drafting committee decided to make the centre strong and powerful. That’s why India is considered as unitary in nature to some extent. According to Dr.Subhash Kashyap, “the Indian Constitution establishes a strong centre.” Paylee considers it as “perfectly federal.” Morris Jones terms it “bargaining federalism” and for K.C. Wheare it is “quasi-federal”.

The Indian Constitution can be considered as unique with respect to its extreme detail and substance. As it is the longest written constitution in the world. The Nature of the Indian constitution is federal.[4] Federalism involves the distribution of sovereignty between the national government and the constituent member states. Within each sphere, each government is supreme.[5] In the Indian Constitution, it is nowhere mentioned that the Indian system can be considered as federal in nature, but the constitution defines India (Bharat) as a union of state.[6]

Though, the subject-matter of laws made by Parliament and by the Legislature of states has been mentioned in article 246 of the constitution and the distribution of power is classified in the seventh schedule of the Indian constitution. There are three lists[7]; Union list, State list, and Concurrent list. The Union list contains 97 subject matters, State list contains 66 subject matters, and Concurrent list contains 47 subject matters. The most important subjects are there in Union and Concurrent list. In case of any conflict, Union list is given the foremost priority, followed by Concurrent list and then State list. Under the ‘Doctrine of plenary power’, the Parliament has a residue to make laws if any subject isn’t there in any of the three lists.

There are certain articles in the Indian constitution which gives some special power to union, such as; Article 249 of the constitution which gives the power to Parliament to legislate with respect to any subject matter in the state list in the national interest, article 250 states that at the time of emergency parliament can pass any state law, article 251 ensures that in case of any conflict between the state and centre, Parliament’s law overcomes the state law, article 252 states that if at any point of time, if two states demand something then the Parliament can pass any law and article 246 deals with the conflict between the State and the Parliament. These articles ensure that the supreme power lies with the centre in India. Therefore, the union can make certain laws under the state list, which questions the federal structure of India. As, the true federal structure suggests that any change or amendment should be brought on the consensus of both,union and state.

In the present time, there have been a few incidences that question the federal structure of India, such as demolition of article 370. Under some special circumstances, the Parliament has been interfering in the state subject matters, which showcase India as a totally unitary system. Under Article 370(1)(d), constitutional provisions could be applied to the state from time to time, as modified by the President through a Presidential Order, and upon the concurrence of the state government (this was the basis for the controversial Article 35A, for example). Perhaps the most important part of 370, however, was the proviso to clause 3. Clause 3 itself authorised the President to pass an order removing or modifying parts of Article 370. The proviso stated that:

Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.[8]

Hence, in order to amend the Article 370, the recommendation of Jammu & Kashmir assembly was required, but the Central government passed the bill for the abolition of Article 370 under the situation in which state assembly was dissolved. Even the Constitution experts like Gautam Bhatia[9] also question this bill. The main question that lies here is that the use of the Governor as a substitute for the elected assembly in a matter of this kind is valid or not? And if valid then doesn’t it question the true essence of federalism? Also, can centre process these kinds of bills again in regards to any state?

P.K Tripathi, a member of law commission and a distinguished professor in his article ‘Federalism: The Reality and the Myth’ have analysed the Indian federal system. According to Mr. Tripathi, in India, there isn’t a true federal system. He came to this conclusion by comparing the Indian federal system with three different senses. He said that the Indian federal system doesn’t have the essentials to be called true federalism. He contends that what conclusively destroys any resemblance of federalism in India is that the union can overpower the mater, mentioned in the so-called state list. This can be done at the time of emergency under article 352. Mr. Tripathi also puts an objection on article 246 and 256 as an issue for federalism. In case of financial matters also, our Constitution doesn’t compromise over the states’ autonomy.

In the case of West Bengal v. Union of India, the Supreme Court stated that the Indian system doesn’t profound the absolute federalism. The apex court also mentioned that the state doesn’t have the power to alter the constitution, it only within the ambit of centre. “The Constitution having adopted the federal principle of government the States share the sovereignty of the nation with the Union, and therefore the power of the Parliament does not extend to enacting legislation for depriving the States of property vested in them as sovereign authorities.”[10] Though, Justice Subba Rao in his dissent of the judgement points out different things. His premise was basically on the fact that state should be given certain powers, to follow the true structure of federalism in India.

In case of Rajasthan v. Union of India[11], the apex stated that “In the sense, the Indian Constitution isn't federal”, the court stated that the stretch out features of the constitution in regards of federalism, give requirements of the advancement, improvement and making the country coordinated, politically and monetarily.

In the case of SR Bommai v. Union of India[12], the learned judges had some different points in regard to federalism in India. Justice Ahmadi points out India as a Quasi Federal, ass there isn’t anywhere mentioned in the constitution that India is federal. n the other hand Justice Sawant and Justice Kuldip Singh said that “federalism is a fundamental element of India”. Justice Ramaswamy declared India to be an "Organic Federation" and Justice Jeevan Reddy and Justice Agarwal said that that federalism in India has an alternate significance as per the context of various sovereigns. Different judges had very different opinions on federalism in India but most of them pointed out that India doesn’t have the true federal system.

Under the ambit of definition of true federalism and theories given by different scholars, different article provisions; which gives immense power to the centre and some cases along with the different opinion of judges. It can be said that India doesn’t follow the real structure of federalism. In India, its nothing but a myth. P.K Tripathi in his article, ‘Federalism: The Reality and the Myth’ have pointed out many things which prove that India believes in a mythical notion of federalism.

[1]Henry Campbell Black, Black's Law Dictionary, (2nd Ed., 2010). [2]k.c.wheare, federal Government,(4thEd., 1951). [3]Sharda Rath, Federalism: A Conceptual Analysis, The Indian Journal of Political Science, Vol. 39, No. 4 (Oct-Dec. 1978). [4]benjaminn. schoenfeld, federalism in india (1960). [5]Srinavasan, N., op. cit.s p. 19 [6]The Constitution of India, 1950, Art. 1. [7]The Constitution of India, 1950, Schedule 7. [8]The Constitution of India, 1950, Article 370. [9]Gautam Bhatia, The Article 370 Amendments: Key Legal Issues https://indconlawphil.wordpress.com/2019/08/05/the-article-370-amendments-key-legal-issues/. [10]State of West Bengal v. Union of India, AIR 1963 SC 1241. [11]Rajasthan v. Union of India, 1977 AIR 1361, 1978 SCR (1). [12]S.R. Bommai v. Union of India, 1994 AIR 1918, 1994 SCC (3) 1.