Federalism: the nature of the Indian federation - Constitutional Law II

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1. What a federation is
2. Federal features
3. Unitary features
4. What the writers have said
5. The Supreme Court's answer
6. Conclusion to write
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

Do not answer “yes” or “no”. The examiner wants the features on both sides, the labels the writers have given (quasi-federal, holding-together, co-operative), and the Supreme Court's answer in S.R. Bommai: federalism is part of the basic structure, even if the Centre is stronger than in a classical federation.

1. What a federation is

A federal State divides governmental power between a central government and regional governments, each supreme within its own sphere, by a written Constitution that neither can alter on its own. K.C. Wheare's definition is the one to quote: the federal principle is “the method of dividing powers so that the general and regional governments are each, within a sphere, co-ordinate and independent”.

The classical model is the United States, a coming-together federation: thirteen independent States surrendered part of their sovereignty to form a Union. India is a holding-together federation, a term from the political scientist Alfred Stepan. A unitary British India was divided into units for administrative convenience and to accommodate linguistic and regional diversity. The units did not exist before the Union and did not create it, which explains most of the unitary features below.

Article 1 says so in terms: “India, that is Bharat, shall be a Union of States”. Dr Ambedkar told the Constituent Assembly that the word “Union” was chosen deliberately: the federation was not the result of an agreement among the States, and no State has the right to secede from it.

2. Federal features

Dual polity — a Union government and State governments, each with its own legislature, executive and sphere of action.
Written Constitution that is supreme over both levels of government.
Division of powers — Articles 245 and 246 and the three lists in the Seventh Schedule.
Rigid amendment for federal provisions — under the proviso to Article 368(2), an amendment touching representation of States, the lists, the Supreme Court and High Courts, or the election of the President needs ratification by the legislatures of at least half the States.
Independent judiciary to decide disputes between the Union and the States, with original jurisdiction in the Supreme Court under Article 131.
Bicameral Parliament, with the Rajya Sabha representing the States.

3. Unitary features

Article 3 — Parliament may form new States and alter the area, boundaries or name of any State by ordinary law. The State legislature's views are sought but do not bind. India is often called “an indestructible Union of destructible States”.
Strong Centre in the division of powers — the Union List is the longest, the Union law prevails in the Concurrent List (Article 254), and residuary power rests with Parliament (Article 248).
Parliament may legislate on State subjects under Articles 249, 250, 252 and 253.
Single Constitution and single citizenship; until 2019 Jammu and Kashmir was the only exception to the first.
Integrated judiciary and All-India Services (Article 312), whose officers man State administrations but are controlled by the Union.
Governor appointed by the President and holding office during his pleasure, with power to reserve State Bills for the President (Article 200).
Emergency provisions — Articles 352, 356 and 360, under which the federation can be turned into a unitary State without amending the Constitution.
Unequal representation of States in the Rajya Sabha, by population rather than equally as in the US Senate.
Financial dependence of the States on Union transfers and grants.

4. What the writers have said

K.C. Wheare — the Indian Constitution is quasi-federal, “a unitary State with subsidiary federal principles rather than a federal State with subsidiary unitary principles”.
Ivor Jennings — a federation with a strong centralising tendency.
Granville Austin — co-operative federalism: the two levels are interdependent and work together rather than in watertight compartments.
Dr Ambedkar — the Constitution establishes a dual polity and is federal, but it can be both unitary and federal according to the requirements of time and circumstances. In normal times it works as a federation; in war or emergency it can work as a unitary State.

5. The Supreme Court's answer

In State of West Bengal v. Union of India, 1962 INSC 391, AIR 1963 SC 1241, West Bengal sued to stop the Union from acquiring coal-bearing land vested in the State under the Coal Bearing Areas (Acquisition and Development) Act, 1957. The State argued that it was sovereign and its property could not be acquired by the Union. The majority, speaking through Sinha CJ, rejected the argument: the Constitution is not a compact of sovereign States, the States have no sovereignty independent of the Constitution, and Parliament's power to acquire extends to State property. Subba Rao J dissented, holding that the Constitution was federal and that the Union could not take the States' property. The case is the high point of the centralist reading.

The balance shifted in S.R. Bommai v. Union of India, 1994 INSC 111, (1994) 3 SCC 1. A nine-judge Bench held that federalism is a basic feature of the Constitution. The States are not mere appendages of the Union; within their sphere they are supreme. A Proclamation under Article 356 is open to judicial review, the majority of a ministry must be tested on the floor of the House and not in the Governor's chamber, and the Assembly should not be dissolved until both Houses of Parliament have approved the Proclamation. Some judges added that the Constitution leans towards a strong Centre, but that this does not reduce the States to administrative units.

Federalism being part of the basic structure, as first suggested in Kesavananda Bharati v. State of Kerala, 1973 INSC 91, (1973) 4 SCC 225, an amendment that destroyed the federal division would be void. The Court has also explained that the quality of the federation is a question of degree. In Kuldip Nayar v. Union of India, 2006 INSC 532, (2006) 7 SCC 1, removing the requirement that a Rajya Sabha member be a resident of the State he represents was upheld: federalism is a basic feature, but residence is not an essential element of it.

Trap. Do not write that State of West Bengal held India is “not federal” and leave it there. It held that the States are not sovereign. Bommai later held that federalism is a basic feature. Both statements are true together.

6. Conclusion to write

India is federal in structure and unitary in spirit when the need arises. The Constitution divides power and protects the division through a rigid amendment procedure and an independent judiciary, which makes it federal. It tilts that division towards the Centre, because the framers had seen Partition and wanted a Union strong enough to hold together. The best label is a holding-together, co-operative federation with a strong Centre, and the States' position is protected by the basic structure doctrine as applied in Bommai.

How this is examined

A recent paper asked for a note on the federal system. The essay version is “Is the Indian Constitution federal? Discuss”, or a question on quasi-federalism with Wheare's description. Write the definition, both lists of features, the writers' labels, and the two cases, then conclude with Bommai. The material in sections 2 and 3 also gives you an opening for questions on Centre–State relations, emergency and Article 356.