DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

2017-2022

CONSTITUTIONAL LAW-II

PROJECT TOPIC: ESSENTIALS OF FEDERALISM

SUBMITTED TO SUBMITTED BY

MRS. ANKITA PRAKHAR CHANDRA

ASSISTANT PROFESSOR(LAW) Roll No. 170101097

SEMESTER- IV

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ACKNOWLEDGEMENT

Nothing in this whole world can be accomplished alone and our piece of work is also not an
exception too, in successful completion of this piece work there has been help and support of
various peoples. We are obliged to our professor Mrs. Ankita who has given us golden
chance for this research project. We would also like to thank the almighty and our parents for
their moral support and our friends who are always there to extend the helping hand
whenever and wherever required.

We further extend our thanks to library staff and all the administrative authorities of
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY who helped us in
getting all the materials necessary for the project.

PRAKHAR CHANDRA

ENROLL NO. 170101097

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Contents
Introduction.........................................................................................................................4

Federalism in the Indian Constitution..................................................................................4

The basic features of a federal government........................................................................5

Federal structure in India.....................................................................................................6

Conclusion............................................................................................................................7

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 INTRODUCTION

“The Distribution of power is an essential feature of federalism. The object for

which a federal State is formed involves a division of authority between theNational

government and the separate states, the tendency of federalism tolimit on every side
the action of the government and to split up the strength of the state among co-ordinate and
independent authorities is especially noticeable, because it forms the essential distinction
between a federal system

and a unitary system of Government.”1

Federalism refers to a system of somewhat autonomous units (the ―constituent units‖)

brought together under one unified system (the ―federal government‖).

Typically, the federal government has limited functions that are thought to be important to all
the constituent units and which the separate constituents would
not be able easily to perform on their own – this means that a vertical allocation
of responsibilities must occur between the federal level and the constituent level. At the same
time, there are usually aspects of autonomy for the constituent units which should be
protected from interference by other constituent units – An allocation of responsibilities
horizontally. The essential elements of a federal system thus are:

constituent units

federal government

allocation of responsibilities vertically

allocation of responsibilities horizontally

Federalism in the Indian Constitution

K.C Wheare who is known as the Father of contemporary federal theories, defined federalism
or federal government, as “the method of dividing power so that general and regional
governments are each within a sphere co-ordinate and independent“.2In federalism, there is
dual polity, comprising two levels of government-a central government and state
1
A. V. Dicey –The Law of the Constitution, p. 151, 155 (10th Edn. 1959)

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governments. Thus, Federalism can be summed up as a division of powers and authorities
between and among the central government and the state governments. The constitution of a
country can be unitary, in which the powers of the government are centralized and federal in
which there is a division of powers between the centre and the states and if a constitution
takes both the features then the only alternative is to analyse those features and ascertain
whether it is federal or unitary and it can have subsidiary variations. According to prof. W.T.
Wagner the question that whether a state is federal or unitary depends upon how many
federal features it possesses.3 Federalism can also be said to be the process of combining
different sets of territorial communities into a common interest, policy ,and action.
Federalism in terms of restraint on the political power is said, “The juxtaposition and
counterbalance of two territorially sets of state sovereignties. The existence of inter-federal
barriers restricts the power of the central state toward the member state and vice versa”.4

The Indian political system though supposedly decentralized and federal is toocentrist. It is
quasi-federal at best and does not allow enough room for the states tofunction freely or
decentralization to come into full play.In particular, what lends credence to characterization
of India’s constitution as unitarist or quasi-federal5 are:

A large concurrent list covering wide areas like economic and social planning with
residuary powers with the centre;

Primacy of central laws in the event of any conflict between a statelegislation and a
parliamentary law;

Requirement of governor's assent for laws passed by state assemblies and

of  president's assent for state enactments in certain matters6

Power to parliament with qualifying majority to redraw the boundaries of astate, divide it,
and create new ones.

Power to the centre to take over the administration of a state in certaincircumstances and
promulgate 'President's Rule'7

The basic features of a federal government

Chief essentials for a constitution to be federal are:

1. Dispersion of powers between the center and the unit states forming federationamong a
number of co-ordinate bodies, controlled by constitution.
2
Wheare, K.C., 1946. Federal government/KC Wheare. London; New York: H. Milford; Oxford University Press,
1946.
3
Prof. W.T. Wagner, Federal States and their Judiciary (moulton and co., 1969),p. 25
4
Karl Loewenstein: Political Power and the Governmental Process. The University of Chicago Press, London.
P.124.
5
Chelliah, 1991
6
Article 201
7
Article 356

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2. Rigidity – neither the center nor the state has power to amend the provision of constitution
relating separation of powers.

3. A written constitution

4. Domination of the constitution – neither of center nor state has power to nullifythe

constitution

5. An independent body and unprejudiced authority. In Pradeep Jain v. Union of India8

, the Apex Court expressed as India is not afederal State in the traditional sense of that term.
It is not a compact of sovereignState which have come together to form a federation by
ceding undoubtedlyfederal features.

Federal structure in India

In Ganga Ram Moolchandani v. State of Rajasthan9 the Supreme Court restated:Indian

Constitution is basically federal in form and is marked by the traditional characteristics of a
federal system, namely supremacy of the Constitution, division of power between the Union
and States and existence independent judiciary. The apex Court in ITC LTD v Agricultural
Produce Market Committee10 expressed a similar opinion..In the Kesavananda Bharati vs.
state of Kerala11 case, the Supreme Court ruled that all provisions of the constitution,
including Fundamental Rights can be amended. However, the Parliament cannot alter the
basic structure of the constitution likesecularism, democracy, federalism, separation of
powers. Often called the "Basic structure doctrine", this decision is widely regarded as an
important part of Indian history.

In State of M.P. v. Bharath Singh12 it was held that the Indian Federal structure is founded on;
(1) Sovereignty of people with limited Government authority; and(2) Distribution of power
between three organs of the State -Legislature, Executive and Judicial, each organ having
some check direct or indirect on the other. It is laid down by, that the most important point to
ascertain whether a Constitution is Federal in character is whether the powers of the
Government are divided between co-ordinate independent authority or not. In accordance to
H. M. Servai, the learned author expressed the opinion that the most important feature of
Federal Constitution is the distribution of legislative power. Even A.V. Dicey, had expressed
an opinion that the distribution of limited executive, legislative and judicial authority among
bodies each co-ordinate with and independent of the other is essential to the Federal form of
Government. Federal set up is always understood in contradistinction to unitary State.
Federalism, whether understood as pragmatic or quasi in the Indian context in view of the
8
1984 SCR (3) 942
9
2001( 3 )SCR 992
10
AIR 2002 SC 852
11
AIR 1973 SC 1461 
12
AIR 1967 SC 1170

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division of powers between the Union and States, is accepted to be the basic structure of the
Constitution. A comparative study of the Constitutions of Federal set up of the World do
throw clear light on the division of powers between the Centre and the States. Local
Government or local bodies have been never treated to have division of powers so as to be a
tier in the Federal system. It is clear from the very functioning of the Federal Systems of the
World.

In reference to Art. 136, the Supreme Court has said,"In dealing with this question, it is
necessary to bear in mind one fundamentalfeature of a Federal Constitution. In England,
Parliament is sovereign; and in thewords of Dicey, the three distinguishing features of the
principle of ParliamentarySovereignty are that Parliament has the right to make or unmake
any law whatever;that no person or body is recognized by the law of England as having a
right tooverride or set aside the legislation of Parliament, and that the right or power of
Parliament extends to every part of the Queen's dominions13. On the other hand,the essential
characteristic of federalism is "the distribution of limited executive,legislative and judicial
authority among bodies which are co-ordinate with andindependent of each other". The
supremacy of the Constitution is fundamental tothe existence of a federal State in order to
prevent either the Legislature of the federal unit or those of the member States from
destroying or impairing thatdelicate balance of power which satisfies the particular
requirements of Stateswhich are desirous of union, but not prepared to merge their
individuality in aunity. This supremacy of the Constitution is protected by the authority of
anindependent judicial body to act as the interpreter of a scheme of distribution of powers.
Nor is any change possible in the Constitution by the ordinary process of federal or State
legislation. Thus the dominant characteristic of the BritishConstitution cannot be claimed by
a Federal Constitution like ours."

Conclusion

Given that this project is to highlight the essential features of federalism, I havereferred to
precedents and research-papers to highlight the same without givingmuch of my attention to
the provisions within the Constitution of India for anyinspiration for the same. This, I would
like to clarify here. The Indian Constitutionis federal in its nature, this, though is not
expressly mentioned anywhere in theConstitution of India, the provisions have been given in
Part XI of the IndianConstitution (Art. 245- Art. 263), Art. 246 gives rise to Schedule 7 of the
IndianConstitution, which clearly states the division of jurisdiction on the basis of
subjectmatter and the division of the states defines the jurisdiction in accordance toterritory.
But then, the Constitution of India also gives the Union more power thanthe States, (Art.
368), thus making it a federal government with the traits of anunitary system in it. Thus, India
does not have an absolutely unitary form of Government.

13
The Law of the Constitution by A.V. Dicey, p.XXXIV

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