CONSTITUTIONAL LAW - I

FEDERAL AND UNITARY CONSTITUTION

BY

MOHAMMAD ARISH
B.A.,LL.B(HONS) 3RD SEMESTER S/F

TO
DR. MOHD ASAD MALIK SIR

2017
FACULTY OF LAW
JAMIA MILLIA ISLAMIA
 1

Acknowledgement

I am thankful to the Faculty Of Law, Jamia Millia Islamia for providing me an opportunity to
research on the topic assigned to me which ultimately summated the knowledge I had on the
subject from both the critical and analytical perspective of learning.

Thanking You,

Mohammad Arish
 2

TABLE OF CONTENTS

Sr. No. Topic Pg. No.

1 Introduction 3

2 Federal Constitution 4

3 Unitary Constitution 5

4 Federal Constitution V. Unitary Constitution 6

5 Classifying Constitution As Federal Or Unitary 9

6 Constitution Of India: Federal Or Unitary? 10

7 Conclusion 18

8 Bibliography 19
 3

1. Introduction.
Every country has its own constitution within the scope of which a country is governed
by the people. Without constitution one cannot imagine an organized society, law and
order in a country. A constitution is set of rules for government, often codified as a
written document that establishes principles of an autonomous political entity. In the case
of countries, this term refers specifically to a national constitution defining the
fundamental political principles, and establishing the structure, procedures, powers and
duties, of a government. By limiting the government's own reach, most constitution
guarantee certain rights to the people. The term constitution can be applied to any overall
law that defines the functioning of a government, including several historical
constitutions that existed before the development of modern national constitutions. A
constitution is a system for government, codified as a written document, which contains
fundamental laws and principles. It usually contains fundamental political principles, and
establishes the structure, procedures, powers and duties, of a government. A constitution
is a set of rules for government often codified as a written document that enumerates and
limits the powers and functions of a political entity. There are two types of constitution -
Federal and Unitary. Both the types will be analyzed in this work.
 4

2. Federal Constitution.
In a federal set up there is a two tier of Government with well assigned powers and
functions. In this system the central government and the governments of the units act
within a well established sphere, co-ordinate and at the same time act independently. The
federal polity, in other words, provides a constitutional device for bringing unity in
diversity and for the achievement of common national goals. K.C.Wheare defines federal
government as an association of states, which has been formed for certain common
purposes, but in which the member states retain a large measure of their original
independence. A federal government exists when the powers of the government for a
community are divided substantially according to a principle that there is a single
independent authority for the whole area in respect of some matters and there are
independent regional authorities for other matters, each set of authorities being co-
ordinate to and subordinate to the others within its own sphere. The Constitution of India
has adopted federal features; though it does not, in fact, claim that it establishes a
federation. The question whether the Indian Constitution could be called a federal
constitution troubled the minds of the members of the Constituent Assembly. This
question cannot be answered without going into the meaning of federalism and the
essential features that are evident in federal state. A federal constitution has the following
features:
 Constitution should be a written one.
 Rigid procedure of amendment.
 Distribution of powers between state and centre.
 Supremacy of judiciary.
 5

3. Unitary Constitution.
A unitary system is governed constitutionally as one single unit, with one constitutionally
created legislature. All power is top down. A unitary state is a sovereign state governed as
one single unit in which the central government is supreme and any administrative
divisions (subnational units) exercise only powers that the central government chooses to
delegate. In a unitary state, subnational units are created and abolished and their powers
may be broadened and narrowed, by the central government. Although political power in
unitary states may be delegated through devolution to local government by statute, the
central government remains supreme; it may abrogate the acts of devolved governments
or curtail their powers. Many states in the world have a unitary system of government.
The UK is an example of a unitary system.
 6

4. Federal Constitution V. Unitary Constitution.

The distribution of powers between different levels of government is an important aspect
of the constitutional organization of a state. Among states with two levels of government,
distinctions can be made on the basis of the greater or lesser autonomy granted to the
local level. The British government’s respect for local self-government has always been a
characteristic of its constitution. In contrast, France traditionally had kept its local
authorities under strict central control. In countries with three levels of government, the
distribution of powers between the central and the intermediate governments varies.
States formed through the union of formerly independent states usually maintain an
intermediate level with considerable legislative, executive, and judicial powers (as in the
United States, Argentina, and Switzerland), though some grant few powers to this level.
The latter situation occurs often in countries that have introduced the intermediate level
as a correction to their previous choice of two levels—as Italy did in its constitution of
1948 and Spain in its constitution of 1978.
Depending on how a constitution organizes power between the central and subnational
governments, constitution may be said to possess either a Unitary or Federal nature. In a
unitary constitution the only level of government besides the central is the local or
municipal government. Although local governments may enjoy considerable autonomy,
their powers are not accorded constitutional status; the central government determines
which decisions to “devolve” to the local level and may abolish local governments if it so
chooses. In federal constitution there is an intermediate level of governmental authority
between the central and the local; it usually consists of states or provinces, though other
entities (e.g., cantons or republics) may exist in some countries. Aside from the number
of levels, the most important distinction between a unitary system and a federal one is
that the states or provinces of a federal state have constitutionally protected sovereignty.
Within a federal system the state or provincial governments share sovereignty with the
central government and have final jurisdiction over a broad range of policy areas.
Federal and unitary constitutions are ideal types, representing the endpoints of
a continuum. Most countries fall somewhere in between the two extremes—states can be
more or less unitary or more or less federal. So-called “semi-federal” countries occupy a
 7

middle category, possessing an intermediate level of government that does not have the
same protections of sovereignty that the states or provinces of federal states enjoy.
A proper understanding of these types of constitution requires the consideration of
additional features of each type. The model federal state is characterized by the existence,
at the national level, of a written, rigid constitution guaranteeing the several intermediate
governments not only permanence and independence but also a full complement of
legislative, executive, and judicial powers. The national constitution enumerates the
powers granted to the central government; the remaining powers are reserved to the
intermediate governments at the state or provincial level. These subnational entities are
generally represented at the national level, possibly on an equal footing, in a second
chamber of the national legislature (often called the upper house, or senate). They also
often are central to the process of amending the national constitution. For example, some
number of state or provincial legislatures may be required to consent to the ratification of
amendments passed by the federal legislature. States or provinces in federal systems also
have their own constitutions that define the institutions of their respective governments,
as well as the powers that are devolved further to their local governments. Such
constitutional arrangements are a guarantee against possible efforts of the central
government to enlarge its jurisdiction and so imperil the important political role that
intermediate governments play in a federal system. More than formal constitutional
safeguards are required to preserve that role. Apart from constitutional amendments, the
central government may seek to broaden its own powers through the use of constitutional
clauses granting “implied powers.” In some federal states (e.g., Argentina and India),
there are emergency provisions by which the central government may suspend the powers
of individual state or provincial governments. If abused, these provisions—meant to be
used only in cases of rebellion or other severe disturbance against the constitutional order
—may seriously compromise the constitutionally enshrined principle of shared
sovereignty that is the hallmark of federalism. Even in established
federal democracies (e.g., Canada, Germany, and the United States), the exact
distribution of powers between levels of government is a matter of constant dispute
between central and subnational governments. Disputes about federal-state matters are
 8

often the subject of rulings in courts or constitutional tribunals or conferences involving

the heads of the central and subnational governments.
Semi-federal constitutions are also, as a rule, on rigid written constitutions granting some
limited legislative and administrative (though seldom judicial) powers to the intermediate
or regional governments. But because regional governments in semi-federal states
possess jurisdiction only over enumerated matters (and even here they are subject in part
to the overriding powers of the central authorities), their actual role and political
influence within the system largely depend on the tendency of the central government to
buttress or to restrict their autonomy. Where the powers granted by the constitution to the
regional governments are particularly minimal, the semi-federal state will look in many
respects like a unitary state. Where the powers are relatively large and the central
government favors their expansion—perhaps because the central government is itself a
coalition of national and regional parties—the state tends to assume federal
characteristics, even if the typical hallmarks of the federal system are not present. Spain
and Belgium are good examples of semi-federal constitutions that have become
increasingly more federal in nature.
 9

5. Classifying Constitution As Federal Or Unitary.

Classifying a particular constitution as federal or unitary is usually straightforward,
though in some cases it can be more difficult. The United States and Switzerland are
clearly federal constitutions; all of the above-mentioned characteristics of the federal
state are present in their constitutional systems. Australia and Germany too can be
considered federal in all respects. Canada also is a federal constitution, despite the fact
that some of the formal features of ideal federalism are absent from its 1982 constitution:
the provinces’ powers, not the central government’s, are enumerated. Additionally, there
is no constitutionally mandated representation of the provinces in the upper house of the
federal legislature, whose members are appointed by the central government (though they
are chosen, by convention, in a way that ensures provincial representation). Nevertheless,
the provinces’ powers are vast, and the constitutional guarantees of their rights and
independence are particularly strong.
 10

6. Constitution Of India: Federal Or Unitary ?

In India, there are two governments in existence, the Union Government and the State
Government. The two governments do not subordinate with each other rather cooperate
with each other while working independently. Though the Indian constitution has the
traits of being a federal constitution, but in its strict sense, it is not 1. The presence of
features which are necessary for existence of a federation is quite a unique aspect of
Indian Constitution but on the other side, there are provisions which give more power to
the Union Government vis-à-vis that of State governments. Henceforth, the Indian
Constitutional structure is a quasi-federal structure and it was made like this in the 1935
Act. This Act laid down the foundations of federal form of government in India. It
provided for the distribution of legislative powers between the Union and the provinces
(the structure at that time). These provisions were laid down for promoting harmony and
resolving differences between the provinces. The Act further maintained for a sense of
cooperative relationships amongst the provinces. Getting into nuances of this Act,
Sections 131, 132 and 133 laid down provisions for resolving the water related disputes.
Basically, these provisions dealt with the problems relating to inter Province Rivers and
river valleys. On the other hand, Section 135 of the 1935 Act laid down provisions for the
creation of councils to deal with the coordination between the various provinces of the
British India. The need for creating a cooperative relation between the provinces was felt
even before the independence. The Indian Constitution has incorporated the principles in
a detailed form which were actually laid down under the 1935 Act.

A well designed, and more important, well-functioning system of federal governance, by

virtue of its manifold benefits, plays a key role in promoting the stability and prosperity
of nations as the heights attained in development by the leading federations of the world
– USA, Canada, Australia and Switzerland – demonstrate. On the other hand, unless
carefully crafted, federal systems do not endure as evidenced by the disintegration of
many of the federal formations that came into being in the last century, such as Soviet
Russia, Yugoslavia, Czechoslovakia, Rhodesia, and Nyasaland (Watts, 1999) 2. As earlier
stated, the Indian constitution though, claims to be decentralized and federal is somehow
1 http://www.halfmantr.com/display-polity/161-indian-federalism.
2 Amaresh Bagchi “Fifty Years of Fiscal Federalism in India – An Appraisal”.
 11

too centrist. The Centre functions in a way which does not allow the State’s autonomy to
function freely in a completely decentralized way. Now, the question arises “Was it
intended to be made this way?” This could be highlighted as one of the reasons of India’s
diminutive growth when compared to China, where complete autonomy to provinces in
running their economies has resulted in much higher growth rates.

No doubt, India has a political and constitutional structure where federal features are
evident. There is sharing of power between the Centre and the States but the Constitution
provides Central Government with supreme powers and concentrates administrative and
financial powers completely in its hands 3. Seems there was some deficiency which made
the constitutional framers to incorporate features which worked against the federal
principle. Reiterating some Central Government’s powers, it has the power to reorganize
the states through parliament; Governors appointed by the Centre can withhold assent to
legislation passed by the state; Parliament can override the legislations passed by the
states for the reasons of national interest; Governors have a role in the formation of state
governments and the Centre is vested with the power to dismiss the state governments
under Article 356; residuary powers are vested with the Centre and the major taxation
powers lie with the Central authority. Fortunately, the reviewing power of judiciary of
Centre-State relation exists as that in federal structure. The bottom-line is that the Indian
political system has federal features which are circumscribed with a built-in unitary core.

Former Chief Justice Beg, in State of Rajasthan v Union Of India 4, called the
Constitution of India as ‘amphibian’. He said that ”….If then our Constitution creates a
Central Government which is ‘amphibian’, in the sense that it can move either on the
federal or on the unitary plane, according to the needs of the situation and circumstances
of a case…”.

Similarly in S.R. Bommai v Union of India5, “pragmatic federalism” was used. Quoting
Justice Ahmadi, “It would thus seem that the Indian Constitution has, in it, not only
features of a pragmatic federalism which, while distributing legislative powers and

3 Prakash Karat “Federalism and the political system in India”.

4 (1977) 3 SCC 592.
5 (1994) AIR SC 191.
 12

indicating the spheres of governmental powers of State and Central Governments, is

overlaid by strong unitary feature.”

The phrase ‘semi-federal’ was used for India in State of Haryana v. State of Punjab6,
whereas in Shamsher Singh v. State of Punjab 7, the constitution was called ‘more unitary
than federal.’

Another case on this issue is that of State of West Bengal V. Union of India8. This case
dealt with the issue of exercise of sovereign powers by the Indian states. The Supreme
Court in this case held that the Indian Constitution does not promote a principle of
absolute federalism. The court further outlined four characteristics highlighting the fact
that the Indian Constitution is not a “traditional federal Constitution”.

First being that there is no provision of separate Constitutions for each State as required
in a federal state. The Constitution of India is the supreme document, which governs all
the states.

Secondly, the Constitution can be altered only by the Union Parliament; whereas the
States have no power to alter it.

Thirdly, in contradiction to a federal Constitution, the Indian Constitution renders

supreme power upon the Courts to invalidate any action which violates the Constitution.

Fourthly, the distribution of powers facilitates local governance by the states and national
policies by the Centre.

The Supreme Court further held that both the legislative and executive power of the
States is subject to the respective supreme powers of the Union meaning that Centre is
the ultimate authority for any issue. The political sovereignty is unevenly distributed
between the Union and the States with greater weightage in favor of the Union. Another
reason which militates against the theory of the supremacy of States is that there is no
concept of dual citizenship in India. The learned judges finally concluded that the

6 (2004) Supp 2 SCR 849.

7 (1974) AIR 2192.
8 (1963) AIR 1241.
 13

structure of the India as provided by the Constitution is centralized, with the States
occupying a secondary position vis-à-vis the Centre.

Conversely, Justice Subba Rao was of the view that under the scheme of the Indian
Constitution, sovereign powers are distributed between the Union and the States
according to their respective spheres. The legislative field of the union legislature is much
wide ranging than that of the State legislative assemblies; the laws passed by the
Parliament should therefore have an upper hand over the State laws in case of any
conflict. In a few cases of legislation where inter-State disputes are involved, sanction of
the President is made mandatory for the validity of those laws. Further, every State has its
judiciary with the State High Court at the apex. This particular thing in his opinion of the
learned judge does not affect the federal principle. He while arguing this gave the parallel
of Australia. In Australia, appeals against certain decisions of the High Courts of the
Commonwealth of Australia lie with the Privy Council. Thus, the Indian federation
cannot be negated on this account. In financial matters, the Union has more resources at
its disposal as compared to the states. Thus, the Union being in charge of the purse strings
can always persuade the States to abide by its advice. The powers vested in the union in
case of national emergencies, internal disturbance or external aggression, financial crisis,
and failure of the Constitutional machinery of the State are all extraordinary powers in
the nature of safety valves to protect the country’s future. The power granted to the Union
to alter the boundaries of the States is also an extraordinary power to meet future
contingencies. In their respective spheres, both executive and legislative, the States are
supreme. In a nutshell, Justice Subba Rao argued that the Union has a bigger role to play
when compared to states and therefore, the Union powers have to supersede the State’s.

This minority view provided by Justice Subba Rao in this case had consistency with the
federal scheme under the Indian Constitution. The Indian Constitution undoubtedly
accepts the federal concept and distributes the sovereign powers between the coordinate
Constitutional entities, namely, the Union and the States.

India, like Canada, constitutes an asymmetrical federation in the sense that some states
have constitutionally guaranteed prerogatives setting them apart from the other states of
the federation. However, in the case of India, rather unlike Canada, the affording of
 14

special status to a group or territorial entity never came easy9. Article 370 expresses
special provisions for the state of Jammu and Kashmir with respect to rest of India as per
its instrument of accession. Also, there are special provisions for the states of Andhra
Pradesh, Arunachal Pradesh, Assam, Goa, Mizoram, Manipur, Nagaland and Sikkim as
per their accession or state-hood deals as laid down in Article 371A-I. President’s rule is
another important thing to be listed here where the Central Government (through its
appointed Governor) takes control of the State’s administration for certain months when
no party can form a government in the state or in case there is violent disturbance in the
state. Also, Article 3 articulates that the Parliament can change the name, area or
boundary of a State without the consent of the State concerned. Thus, the States in India
do not enjoy the right to territorial Inviolability.

The Seventh Schedule of the Constitution indicates that distribution is one sided and is
heavily in the favor of Centre. Union list contains the largest number of most important
subjects. For example, almost all the tax subjects are in the Union list (except the Sales
Tax). Another related provision is Article 248 which states that any subject that does not
belong to the Concurrent and State lists, belongs to the Residuary List and it belongs to
Central Government.

Article 312 talks about provides for the creation of All India Services (who can function
both as Central and State Services). The All India Services officers are recruited, trained
and appointed by the Centre but they largely function under the State Government. It is
they who largely control the administration of State. The State government cannot take
disciplinary action against officers, except transfer. Any other action take removal from
service or reduction in rank can only be controlled by the Central Government.

Article 356 lays down that during the President Rule, the Parliament is authorized to
legislate on one or more subjects of State list for the State’s concerned. The law thus
made under the President Rule continues to be in force.

Provisions regarding Emergency are again of utmost importance. Article 352 talks about
proclamation of National Emergency. It says that when the national security of India or
any part of its territory is threatened by war or external aggression or armed rebellion, the
9 Patrick Hoenig “Federalism and identity in India”.
 15

President can declare National Emergency 10. (44th Amendment Act) In case of national
emergency the distribution of power is suspended and constitution functions as if it is a
Unitary Constitution. Another Emergency provision is Article 360 and talks about
Financial Emergency of Centre over the country. When the Financial Emergency is in
force, the distribution of the financial resources between the Centre and State can be
suspended by Centre and all the financial resources can be used by Centre to meet the
emergency situation.

Digressing a bit from the general federalism is the concept of Cooperative federalism,
which is another class of a federal structure. This concept originated in the Australian
Constitution as, there existed a felt need for a change from competitive to cooperative
relationship in the working of the federal constitution. This modern view of federation
regards federation as a functional arrangement rather than mere division of powers
between Centre and State. Cooperative federalism suggests that the Centre and the States
share a horizontal relationship and not the one in which one is over & above the other.
There are three factors through which this trend is promoted, namely:

(1) The exigencies of war when for national survival, national efforts takes precedence
over fine points of Centre state division of powers;

(2) Technological advances means making of communication faster;

(3) The emergence of the concept of social welfare state in response to public demands
for various social services involving huge outlays which the governments of the units
could not meet by themselves out of their own resources11.

This concept helps the federal structure, with its divided jurisdiction to act in harmony.
This basically promotes cooperation by minimizing tension among the various
constituent governments of the federal union to pool their resources in order to achieve
the desired results. In India there are some constitutional mechanisms as also some extra
constitutional mechanisms to foster the spirit of Cooperative federalism. The constitution
makers might have deliberately provided for such features in the constitution in order to
ensure the smooth working of the government.
10 http://www.halfmantr.com/display-polity/161-indian-federalism.
11 http://sanamurtaza.blogspot.in/2011/08/cooperative-federalism.html.
 16

Anyhow, irrespective of India being quasi-federal in its functioning and the way it is
structured, it still incorporates some of the features which are essential for a federal
arrangement. To pen down some of these features;

Written Constitution

Any parliamentary constitution cannot be given the status of being a federal constitution
because a written demarcation of division of power is necessary for smooth functioning
of the Government. Providentially, India has a written constitution where the Central
Government some of its powers with the respective State Governments.

Supremacy of the Constitution

This is another important point in the list of features which asserts that the constitution is
legally binding on both the Central and State Governments. No State or even the Centre
can change the provisions of the Constitution that are related to the power and status of
the government to enjoy.

Rigidity of the Constitution

At third in the list features the concept of rigidity which allows no flexibility for a federal
constitution. This is the substitute of outcome of Supremacy of Constitution. Supremacy
of Constitution brings the rigidity to it.

Division/Distribution of Powers

This is the last one to feature in this broad list of essential elements. Distribution of
powers is the fundamental and the most essential characteristics of the federation. The
powers of State are divided into federal as well as unit governments at national and local
levels.

The Seventh Schedule in the India Constitution lays down 61 items which are attributed
to the State list upon which State Governments can make a law, whereas there is a Union
list containing 100 items upon which only Union Government can make a law. This
makes clear that there is a structure made to fit the federal essence but the powers are
divided in such a way that it ends up being a quasi-federal state. It is unfortunately
practically difficult to throw light upon each and every provision where
 17

distribution/division of powers is evident and makes clear that India does not meet the
federal requirements. Nevertheless, effort is made to impress upon every such element.

Bringing in picture the US Constitution, where the working of government is divided into
two domains, namely the Federal and the State Governments. These governments are not
subordinate to each other but are coordinated and independent within the scopes allotted
to them12. It is also argued that such a structure of independent co-ordinate authorities is
what forms the gist of federal principle and India, because of the absence of this feature
does not qualifies to be a federal state. The Indian Constitution per se is not a covenant,
or a pact between the States; rather the States are the products of the Constitution and
ultimately of Parliament. A renowned expert on federalism, Professor Ronald L Watts
defends the Indian approach claiming that “In some cases, however, where territorial
social diversity and fragmentation is strong, it has been considered desirable, as in
Canada and India initially, and in Spain, to give the federal government sufficiently
strong, and even overriding, powers to resist possible tendencies to balkanization.”

Federalism has always remained a ‘work-in progress’ or as Iqbal Narain puts it

‘constantly in the making’ (Copland and Rickard, 1999). The federal structure needs to be
altered and mended perpetually to cope up with the changing environment and emerging
challenges.

The Indian Constitution is a constitution sui generis. On one hand, the constitution
contains features which are of high importance for a federal arrangement, at the same
time it contains provisions which fight for a strong Centre, thus making it quasi-federal in
nature. The fact to be appreciated here is that these dual federalism provisions were
deliberately incorporated to best fit a diverse country like India.

12 Surendra Singh and Satish Misra “Federalism in India: Time for a Relook?”.
 18

7. Conclusion.
To conclude, ‘Federalism’ is one of those good echo words that evoke a positive response
toward many concepts as democracy, progress, constitution, etc. This form of government
tries to facilitate the sociopolitical cooperation between two sets of identities through
various structural mechanisms of ‘shared rule.’ But due to obvious reasons, center- state
relations and the state autonomy have become the cardinal issues of the Indian
federalism. The union government appointed Sarkaria Commission in 1983 to examine
and review the working of the Indian Federalism, but this Commission didn’t make any
useful recommendations for structuring the Indian federalism in a proper manner. The
Union government also took in a very easy approach some of the recommendations made
by this commission. This shows that even though our constitution is said to be federal,
but this overemphasis on the power of the federal government makes incapable of dealing
effectively with socioeconomic challenges and strengthening national unity. Hence, it is
appropriate to restructure Indian Federalism to make it more effective and promote the
Centre- state relationship13.

13 “A debate on Indian Federalism” Concept of Federalism.

 19

8. Bibliography.
 Books.
 M P Jain, Indian Constitutional Law.

 Statutes.
 Constitution Of India, 1950.

 Websites.
 www.brtannica.com
 www.lawctopus.com
 indiankanoon.org
 www.scconline.com