Q. 1. What are the federal features of the Indian Constitution? Explain.
Ans. The Constitution of India establishes a federal system of government in the country. But the federal system of government in India has come under severe criticism at so many hands. Many people are of the viewpoint that the Constitution of India is only federal in form but it is unitary in spirit. Dr. Basu is of the opinion that “The Constitution of India is neither purely federal, nor purely unitary, but is a combination of both.”
Federal Features of the Indian Constitution.
Following are the features of Indian federation:
1. Division of Powers. The Constitution of India has established two forms of government — Union government and state governments. The Constitution distributes powers between these two sets of governments. There are three lists of powers in the Constitution — (1) Union list, (2) State list, and (3) Concurrent list. The Union list consists of 97 subjects. In the Union list, those subjects have been included on which the Central Parliament can pass laws or levy taxes, e.g., Defence, Atomic energy, Foreign affairs, etc. There are 66 subjects in the State list. In the State list, those subjects are included on which, normally, the state legislature can pass laws or levy taxes, e.g., police, jails, local government, agriculture, forests, public services of the states, revenue, income-tax on agricultural income, professional tax, etc. The Concurrent list consists of 47 subjects. The subjects included in the Concurrent list are criminal law, criminal procedure, marriage and divorce, etc. On these subjects both the Centre and the states can pass laws, but if there is a clash between a law of the Centre and that of the State or States, the latter will automatically be null and void to the extent that it comes into clash with the law of the Centre. The residuary powers have been given to the Centre by the Constitution.
2. Written Constitution. The Indian Constitution is written and rigid. The Indian Constituent Assembly sat from December 9, 1946 to November 26, 1949 to frame the Constitution of India. Every Article of the Constitution was passed after due consideration. Indian Constitution consists of 395 Articles and 12 Schedules.
3. Rigid Constitution. The Constitution of India is also a rigid one. Some provisions of the Constitution can be amended by absolute majority and 2/3rd majority of the members present and voting in both the houses separately. But if the amendment is concerned with the articles mentioned in the Article 368, the approval of 50% of the states will be required in addition to the above written process in the Parliament.
4. Supremacy of the Constitution. The Constitution in a federation is always kept supreme.
The supremacy of the Constitution has been maintained in India too. The Central and the state governments in India have to act in accordance with Constitution as the latter is above the government. The power of judicial review is kept in order to maintain the sanctity and supremacy of the Constitution.
5. Supremacy of the Judiciary. In a federal system of government, the judiciary is given a special place. The Indian Constitution establishes a powerful and independent judiciary. It decides disputes between the Centre and the states. It interprets the Constitution as well. The interpretation of the Constitution given by the judiciary is considered the final and the most authentic. It can declare any law unconstitutional, if it is not in tune with the provisions of the Constitution.
6. Bicameral Legislature. Bicameral system of legislature is another important feature of a federal system of government. The Indian Parliament also consists of two chambers — the Lok Sabha and the Rajya Sabha. The Lok Sabha is the lower chamber and it represents the masses. The Rajya Sabha is the second chamber and represents the states. The Rajya Sabha is the permanent chamber and cannot be dissolved. The members to the Rajya Sabha are elected by the state legislatures. Each state elects a fixed number of members to the Rajya Sabha.
7. Dual Polity. India has two governments functioning at two different levels—the national or the federal government on one side, and the government of each component state on the other. The state government draws its authority not from the federal government but from the Constitution of India, the same source from which the federal government draws its powers.
Q. 2. Examine the Unitary tendencies in the Indian Federation.
Ans. Though all the characteristic features of a federation are present in India, yet the word ‘Federation’ does not occur anywhere in the text of the Constitution of India. According to Art. 1 of the Constitution, “India shall be a Union of States”. According to K.M. Munshi, “India is not a federation but a union.” The trend towards unitary government is clear from the following factors:
1. Division of Powers in Favour of Centre. The Indian Constitution has distributed the powers between the Centre and the states in such a way that Centre has become stronger than the states. The Central government gets the lion’s share of the powers. Most important and almost all important subjects have been included in the Union list. If there is a clash over a subject in the Concurrent list between the Centre and the states, the will of the Centre will prevail.
2. Encroachment over the State list by the Union Government. There are so many provisions in the Constitution with the help of which the Centre can interfere with the powers of the state and can exercise these powers.
(1) The Parliament by ordinary majority can change the names and boundaries of the states. It can create and abolish legislative councils in states.
(2) Rajya Sabha can transfer a state subject in favour of the Centre in the name of national interest. It is to pass such resolution by 2/3rd majority. Rajya Sabha is a part of the Centre.
(3) The Central Executive can give directions to the state executive from time to time. The powers of the state executive can be used in this way by the Centre.
(4) The Parliament can make laws on any subject in order to enforce a treaty or an agreement entered into between India and any other foreign power.
3. Influence of the Union Executive over the State Executive. There are certain provisions in the Constitution with the help of which the union executive can exert a great degree of influence over the state executive. The union executive can also interfere in the working of the states:
(i) The Governor of a State is appointed by the President of India. The entire state administration is run in the name of the Governor. The Governor is the Head of the State as well as the agent of the Central Government. The Governor remains in the office during the pleasure of the Central Government.
(ii) There is large number of civil servants who work in the States but their appointment, promotion and dismissal is controlled by the Central government.
These officials belong to the All India Services and occupy the important offices of the administrative machinery of the States.
(iii) The Central Government issues orders to the states from time to time.
(iv) The President of India can issue essential orders to the state regarding the protection of railway lines and other means of communications.
4. No Separate Constitution of the States. In India, except the states of Jammu and Kashmir, no other state has its own Constitution. Everything concerning the states’ administration has been mentioned in the Constitution of India. Dr. Ambedkar said, “The Constitution of the Union and the States is a single frame from which neither can get out and within which they must work.”
5. Change in the Boundaries of States. The Constitution of India empowers the Parliament to change the boundaries of the existing States or create new states or change the name of the States on the recommendation of the President.
6. Amendment in the Constitution. It is said that the Constitution of India is rigid but the State does not play an important role in the amendment of the Constitution. First, only a part of the Constitution is rigid and for making amendments in this part, the approval of half the states of India is required. While making amendments in other parts of the Constitution, the approval of the states is not at all required. Secondly, resolution regarding the amendment of the Constitution can only be initiated by the Parliament and not by the state.
7. Unequal Representation of the State in Rajya Sabha. An important feature of federalism is that the States should get equal representation in the Second Chamber of the legislature. In India, on the other hand, the States are represented in the Rajya Sabha not on the principle of equal representation but on the basis of population of every State. This is a fundamental departure from the federal principle.
8. Single Citizenship. Normally, there is double citizenship in a federation just like the U.S.A. But in India, there is single citizenship, i.e., all the citizens of all the States are equally good citizens of India. This factor also indicates the trend towards the unitary government.
9. Single Integrated Judicial System. The Constitution of India provides for a single integrated judicial system for the whole of India. The Supreme Court and the High Courts are links in the same chain.
There are no two sets of laws but single civil and criminal code for the entire country. This is a clear violation of the federal principle.
10. Election Commission. In the whole of the country, there functions the same Election Commission, Finance Commission and the Comptroller and Auditor General. The States do not have their separate Election Commission and Comptroller and Auditor Generals.
11. All India Services. In the whole of India, the members of All India Services serve both in the States and the Centre.
12. Constitution does not mention the word federation. The Indian Constitution does not make use of the word ‘Federation’. It makes use of the word ‘Union’ in place of the word ‘federation’. Article 1 declares ‘India’, that is Bharat shall be a ‘Union of States’. The word ‘Federation’ points towards the autonomous status of the States but the word ‘Union’ does not lay stress upon the autonomous status of the States.
13. Unitary government in time of emergency. During emergency, the federal government can be changed into a unitary government. It is the President of India who proclaims emergency in the State and such an emergency order is to be approved by the Parliament.
The States are not consulted in this case. When an emergency is declared because of external aggression, war, armed rebellion or a threat of any of them, the form of government will change from the federal to unitary which implies that the Centre will be empowered to exercise the legislative and executive powers of the States.
14. Overwhelming Financial Powers of the Union. The state is dependent on Union for financial aid as the financial resources of the states are limited.
15. States have no Right of Secession. Dr. B. R. Ambedkar said that “The Constitution of the Union and the states is a single frame from which neither can get out and with in which they must work.” Real Position. The Indian Constitution has federal as well as unitary features. But the controversial point is whether Indian Constitution should be called federal or unitary. Mr. P.T. Chacko said, “What the Constitution would establish was in the form of a federation is a federal type of State in which the Central government has been given more powers. During emergency the Central government becomes more powerful. During peace time India is very much a federal State. Whatever powers have been granted to the States by the Constitution they can exercise it according to their own sweet will. The Centre cannot interfere in the working of the administration of the States. But if the constitutional machinery fails in a State, or there are internal riots in the State, or there is danger of an external aggression then the Central government takes away all the powers.”
In the end, we can conclude that the Constitution establishes a federal type of government in India. But during emergency, it can be changed into a unitary type of State in order to face the crisis. Therefore, the Constitution of India is federal in form but unitary in spirit.