Indian Federalism: Examining the debate What is a federal state?
To begin with, one should know what a federal state is. The concept of federal state has evolved over period, with the political experiments it was clear that the some issues should be handled best by the national government, while some could be handled by the regional governments who can handle the issues of local interest. Federalism is a mechanism for effective governance of a union to “reconcile unity with municipality, centralisation with decentralisation and nationalism with localism”. The modern agreed definition and concept of federalism has been more or less derived from the structure and features of the American onstitution. !.. "heare defined federal state as a state which has a “division of powers between general and regional authorities, each of which, in its own sphere, is co#ordinate with the others and independent of them”. The sphere of the general government and the regional government is defined and limited$ both the governments have supreme powers and no way the regional government is subordinate to the general government. The state can be called a co#ordinate if the states can directly operate the command on the citi%en citi%enss withou withoutt any approv approval al of each other. other. The The presen presence ce of a single, single, indivi indivisibl siblee yet composite federal nation is important, however merging into a uniform nation giving all the sovereign power of the provincial government to the general government is not an option. There can be a concurrent list, in which one government can override the power of the other, but the main test of federalism f ederalism lies in the control actual or potential, of at least one sub&ect s ub&ect in which only one of the governments in superior and the other is not. The federal nature of a state necessarily, the main thing to take into consideration is that the onstitution should be regarded as 'upreme and the presence of a written onstitution. 'ome of the onstitutions like the onstitution of (ndia, though the federal principles are not so accurate, are not less important not to be considered as a federal state. They have been named as )uasi#federal states or as unitary with federal principles, it does not prevent the onstitution from being predominantly federal in practise. (n the early days of the Federal states like *'A, anada and Australia, Australia, the main prevailing prevailing concept concept was of “competitive “competitive federalism”, federalism”, the rivalry and disputes between the general government and provincial government were significantly high. There was a “brotherhood of tempted rivalry”$ inspite of the rivalry and conflict the states were aware of their mutual dependence. +owever, with the increase in inter#nation wars, rise in concept of social welfare state and emergence of modern communication technologies the concepts of competitive federalism gives way to “co#operative federalism”. irch defined co# operative federalism as “... the practise of administrative co#operation between general and regional governments, the partial dependence of the regional governments upon the payments from the central governments, and the fact that the general governments, by the use of conditional grants, fre)uently promotes developments in matters which are constitutionally assigned to the regions.” (n the twentieth century, the concept of federalism has risen to be a scenario scenario of mutual mutual co#ope co#operati ration on between between the two govern governmen ments, ts, with with a central centralist ist trend. trend. +owe +oweve ver, r, a stron strong g cent central ral gove govern rnme ment nt doesn doesn-t -t neces necessar sarily ily mean mean that that the the regio regiona nall
governments are weak which works as administrative agents for caring out the policies of the central government.
Analysing the Propositions in State of West Bengal v. nion of India and !"hird Sense of Federalism# by Prof. P.$. "ripathi
First, ( would like to argue that there is not one proposition which &ustifies each other but there are two contrary propositions, though they started out in the same direction but they final result or conclusion are completely different. (n the first proposition given in the case of 'tate of "est engal v. *nion of (ndia, the argument given at the bar was that “The onstitution having adopted the federal principle of government the 'tates share the sovereignty of the nation with the *nion, and therefore power of the arliament does not extend to enacting legislation for depriving the 'tates of property vested in them as sovereign authorities. “+owever, the +onourable ourt held that the (ndian “/onstitution which was not true to any traditional pattern of federation”. The 'inha, .0., argued that in (ndia there was withdrawal or resumption of all the powers of sovereignty into the people of this country and the distribution of these powers save those withheld from both the *nion and the 'tates by the onstitution. +e continued saying that the legal sovereignty of the (ndian nation is vested the people of (ndia and the political sovereignty is distributed between, the *nion of (ndia and the 'tates with greater weightage in favour of the *nion. The &udge concluded that “/it would not be correct to maintain that absolute sovereignty remains vested in the 'tates”. 1n examining the various provisions of the onstitution, one can conclude that the distribution of powers # both legislative and executive # does not support the theory of full sovereignty in the 'tates so as to render it immune from the exercise of legislative power of the *nion arliament The proposition given by rof. .!. Tripathi as the third sense of federalism which he called as the “mythical sense of federalism “describes that the onstitution “...under consideration does not satisfy the essential and indispensable re)uirements of federalism/and the use of the expression federal or federalism, in this third sense, is really speaking spurious .The conscious ob&ect or purpose of this spurious use is/to metamorphose a non#federal constitution into a federal one. “The onstitution under consideration may not have the re)uisite features so that it may be considered as federal constitution, and the interferences drawn in the case of a federal onstitution is not available. +owever, from time to time &udges who are dissatisfied with the non#federal character of the onstitution have tried to alter the very nature of the onstitution through the “tool of &udicial review”. They make a prior baseless assumption of having federal onstitution and attack on the provisions which are contrary to the principle of federalism. 2eviated from the actual reality they try to create a myth, and argue to make the myth a reality through &udicial interpretation. The proposition given in the case of 'tate of "est engal, substantially defers from the proposition given by rof. .!. Tripathi. (n the above case, the ma&ority &udges did not act entirely on the basis of the “mythical sense of federalism” as put forward by the rof..!. Tripathi. Though the argument that the “(ndian onstitution is federal” has been &ustified as a myth in the above case. ut the later part of the
argument by Tripathi has not been &ustified. The &udges did not based their claims on the basis of the (ndia to be truly a federal state and tried to prove its federal character and give &udgement for the state, rather they re&ected the claims of the state that they shared sovereignty with the entre. +owever, the minority dissenting decision by 'ubba, 0., said that“/thepolitical sovereign is the people of (ndia and the legal sovereignty is divided between the constitutional entities i.e., the *nion and the 'tates, who are &uristic personalities. ossessing properties and functioning through the instrumentalities created by the onstitution. /"ithin their respective spheres both in the legislative and executive fields they are supreme$ their inter se relationship is regulated by specific provisions.” The ma&ority decision of "est engal case has been criticised by many of the authors, &udges and scholars. (n the case of 'tate of 3a&asthan v. *nion of (ndia, eg, .0. considered the (ndian onstitution as “more unitary than federal” and have the “appearance” of a federal structure. +e also said that, “(n a sense, therefore, the (ndian union is federal. ut, the extent of federalism in it is largely watered down by the needs of progress and development of a country which has to be nationally integrated, politically and economically coordinated and socially, intellectually and spiritually up#lifted.” The argument of that (ndian onstitution is a federation is nothing but a myth is again proved. There have been incidents when the third sense of federalism as explained by Tripathi has# been applied to attack the (ndian onstitution as violation of federal principles. 2emand has been raised from time to time for re#ordering of the (ndian federalism due to rise of multiple political parties in the regional level, who want to improve their own position. The 4overnment of Tamil 5adu appointed 3a&amannar ommittee in 6787 to examine the entire )uestion regarding the relationship that should exist between the entre and the 'tates in a federal setup, taking into consideration the provisions of the (ndian onstitution and suggest amendments to it for providing greater autonomy to the state 4overnments. The committee made a prior assumption of (ndia being a federal state and argued on the basis of this, and proposed amendments to the (ndian onstitution. There port of the committee “presented a classical illustration of the use of the term 9federalism- in the mythical sense to accomplish the desired end of converting a non#federal constitution into federal one. 9Federalism- in the mythical sense to accomplish the desired end of converting a non#federal constitution into federal one”.
Is India a federal state?
The framers of the (ndian onstitution were aware of the changing concepts of functional realities in other Federations, the historical background of (ndia and the special needs of (ndia have framed the onstitution according to the changing need of the dynamic society.
There are provisions which don-t make (ndian onstitution to be a federal in the sense of American onstitution. ut merely because the entre is having more power to some extent than the states, it doesn-t render the onstitution not to be called a federal one as no two federal constitutions are identical, they can vary. Though (ndia have external sovereignty, the within (ndia, neither the *nion nor the states en&oys :absolute; internal sovereignty due to the division of powers between the *nion and the 'tates in which both the 4overnments have plenary power within their assigned sphere. Though the *nion 4overnment has been assigned the matters which are of national importance, the matters concerning the 'tates are no way subordinate, but they are of a different importance than the *nion. There exist certain provisions in the onstitution which are considered to be going against the principle of federalism. The power to alter the boundaries of the state lies with the entre, however in practice the states themselves has forced the entre to redraw the boundaries of the state. The emergency provisions in Article <=8, is considered to be deviation from the principle of federalism$ however the provision is meant for temporary and can be used only under certain exceptional situations under certain restrictions created through &udicial intervention. There has been a change in the construction of the nature of (ndian federalism, in the case of '.3. ommai v. *nion of (ndia, it has been held that “2emocracy and federalism are essential features of our constitution and are part of its basic structure”. The courts through their liberal interpretation of the onstitution have helped in extending the legislative fields which otherwise can be read rigidly to encroach upon the entry of the other government. The courts have played the significant role as the balance for harmonious construction of the entry to maintain the entre#'tate relation. The use of the term “)uasi federal” which is generally used in connection with (ndian onstitution is )uite vague and unclear about the deviation or conformity with the so#called pure federal model. There is no clear cut distinction or characteristics of a )uasi#federal constitution. There is )uite chance that the term can be abused to construct negative impression of being a federal onstitution, making the “...mythical use of the expression 9federal- for accomplishing the chronic end of snapping the strength and authority of the *nion. %on&l'sion
There is a clash between the “orthodox school” of federalism and “dynamic progressive school” of federalism. "hile the “orthodox school” consisting of !.. "heare,2uchacek, 'awer, .!. Tripathi, .0. 'inha have tested the existence of federal principle on the model of American onstitution and emphasised on the existence of a “competitive federalism”. The “dynamic progressive school” of federalism which consist of the modern day onstitutional experts like A.+. irch, >.. 0ain, 'eervai have stressed on the concept of “co#operative federalism”. The orthodox model of federalism is rigid and has no space for modification, taking into consideration the modern day scenario. The deviation from the model American onstitution is considered as a violation of federal principle. The third sense of federalism as explained by Tripathi makes a basis on the orthodox rigid model of federalism and later
argues on the deviation from this model to turn a so called non pure federal state into a federal one. The assumption made by Tripathi, who seems to belong to the orthodox school is &ust a rigid one, and in his mind is the concept of “dual competitive federalism”, which is outdated and taking into consideration the (ndian onstitution though have certain features which can be called as a unitary trend, but actual in practise the (ndian onstitution works more as a federal state. The (ndian onstitution as argued by the “dynamic progressive school” of federalism is model of “co#operative federalism” where the states don-t compete with the *nion. They also take into consideration the changing need of the society, the historical background and take into account the actual practise of governing to ascertain the nature of the onstitution.
