DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW

2023-2024

EXAMINING FEDERALISM IN INDIA

SUBMITTED TO: SUBMITTED BY:

Dr. Shashank Shekhar Abhishek Kumar
Assistant Professor (Law) B.A. LLB. (Hons)
Sem VIII 200101007.

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ACKNOWLEDGEMENT

First, the researcher extends his profound gratitude and thankfulness to Dr.
Shashank Shekhar, Faculty for Indian Federalism, who gave an opportunity to the
researcher to work on the given topic and limit himself as per his comfort. He also steered
the researcher in getting through this robust job of completing this assignment. Secondly,
the researcher lengthens his thanks to the Faculty of Library and all the students of the
eighth semester who provided useful inputs during the classroom discussion of the topic
and for the shore up and cooperation they provided with.

I also take this opportunity to thank all those people who contribute in their own small
ways but fail to get a mention.

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 INDEX

• INTRODUCTION…………………………………………………………………...4

• CONCEPT OF FEDERALISM AND ITS SIGNIFICANCE………………..........5

• INDIA EMERGING INTO “COOPERATIVE FEDERALISM.............................7

• COMPARATIVE ANALYSIS OF FEDERALISM IN USA, AUSTRALIA AND

INDIA……………………………………………………………………………..…7

• WHY IS INDIA CALLED QUASI FEDERAL…………………………………..10

• IS IT ASYMMETRICAL FEDERALISM………………………………………..11

• CHALLENGES TO INDIAN FEDERALISM…………………………………....12

• CONCLUSION…………………………………….……………………………….14

• BIBLIOGRAPHY…………………………………………………………………..15

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INTRODUCTION

The origin of the concept of federalism comes in various approaches. A legal scholar stated
that federalism is a national constitution for a body of states which desire union and do not
desire unity. He described a federal state as political contrivance intended to reconcile unity
and power with the maintenance of state rights. The essence of a federation is the existence of
union and its states and the division of power between the union and the states and it is
immaterial whether the bond of the union is strong or weak.
Political integrity of union and each state seems to be essential to the federal concept. In one
of the encyclopaedias federal was brought out as a mode of political organization that unites
separate states to allow each to maintain its own fundamental political integrity. Federal
systems do this by requiring that basis policies be made and implemented through negotiation
in some form, so that all the members can share in making and executing decisions; they
stress the virtues of dispersed power centre as a means for safeguarding individual and local
liberties.
A true federation contemplates that the political system must reflect federal principle by
actually diffusing power among a number of substantially self-sustaining centres. This is
sometimes called non-centralisation. But non-centralisation is different from decentralization.
In the latter, there is a conditional diffusion of specific power, but it is subject to recall by
unilateral decision. It is also different from ‘devolution’, in which a central Government
grants power unilaterally to sub-national units. Non-centralisation in exercising political
power cannot be taken away from the general or state governments without common consent.
Federalism is intended to preserve self-government. Genesis of idea of federalism in India
was first traced in Simon Commission, “Indian Statutory Commission” appointed in 1927.
The Commission was meant for revision of the Constitution for India. In its report in 1930,
the Commission recommended the evolution of India into “a federation of self-governing
units”.

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CONCEPTS OF FEDERALISM AND ITS SIGNIFICANCE

In West Bengal v. Union of India1 the Supreme Court observed: ‘The Indian Union is not a
true federation”.

Five Essentials of Federal Character:

1. The Constitution must be written
2. It must be rigid
3. It must be supreme law of the land
4. There must be division or distribution of powers between the Union or Federal
Government and the various States or Provinces
5. There must be an independent and impartial judiciary to interpret the Constitution and the
Laws.
Indian constitution resembles a federal constitution but in essence it is not a federal
constitution. The unique feature of Indian Constitution is the presence of features which are
necessary for existence of a federation. At the same time there are provisions which make the
Union Government powerful vis-à-vis that of state Governments. Hence Indian Constitution
can be termed as Quasi Federal in nature and Indian Union can be called as ‘Centralised
Federation’.
There is no accepted definition of federalism. Federal concept was initiated by some
politician. However the terms itself is ambiguous and controversial. Some jurist defined the
federalism as following:
Professor K.C. Wheare said that “the federal principle is the method of dividing the powers
between general and regional governments. Each government within a sphere coordinate and
independent. Existence of coordinate authorities independent of each other is the gist of the
federal principle.”2
According to Dicey;-
“Federalism means distribution of the forces of the State among the coordinate bodies each
originating in and controlled by the Constitution.”3

1
AIR 1963 SC 1241
2
Wheare, Federal Government, (1964) at 27-28.
3
A.V.Dicey, Introduction to the Study of the Law of the Constitution, 7 th ed. (London: Macmillan, 1908) at 140.

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Riker defined federalism saying that “The Constitution is federal if it provides for two levels
of Government. Each of which has some guaranty of its contained autonomy within its
sphere.
A principle of government defines it as the relationship between the central government at the
national level and its constituent units at the regional, state, or local levels. Under this
principle of government, power and authority is allocated between the national and local
governmental units, such that each unit is delegated a sphere of power and authority only it
can exercise, while other powers must be shared.

Federalism has a significant role to play in the working of a country. Federalism decentralizes
our politics in many ways. For example, senators are elected to represent their state, not the
nation. With more levels of government, more opportunities exist for political participation.
Judicial power is enhanced by federalism. Federalism also decentralizes our policies. The
history of federalism demonstrates the tension between the states and the national
government over who should control policy. The overlapping powers of the two levels of
government mean that most debates over policy become debates over federalism. States are
responsible for most public policies dealing with social, family, and moral issues. These
become national issues when brought to the national government by an aggrieved group. The
American states are also policy innovators, being responsible for many reforms, new ideas,
and new policies.

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INDIA EMERGING INTO A “COOPERATIVE FEDERATION”
Single citizenship, All India Civil Services, Unified Judiciary, single Election Commission,
the Finance Commission, and the Planning Commission also establish the unitary character
of our constitution. Indian Constitution is not laissez faire federal Constitution. Paras Diwan,
said in his book,4 “It is essentially a cooperative federation, where two sets of governments
are not antagonistically independent of each other but coordinate, cooperate and collaborate
in each other’s efforts “to secure to all its citizens justice, social, economic and political,
liberty of thought expression, belief, faith and worship: equality of status and of opportunity:
and to promote fraternity assuring the dignity of the individual and the unity and integrity of
the Nation.”(Preamble of the Indian Constitution)
Paul Appleby5 calls the Indian Constitution as extremely-federal. The so called autonomy of
the states appears to be a myth or practically impossible in certain circumstances. The biggest
threat to the autonomy of the states is the provisions like Article 356. The Sarkaria
Commission which probed into the centre and state relations suggested exhaustive measures
to improve the state autonomy and strengthen the cooperative federalism, the basic concept of
our constitution. With the advent of regional parties gaining popularity with their relentless
fight against the misrule by Central Governments ignoring the needs of some states, the
demand for more powers increased. The unitary features of the Constitution are coming under
constant attack from the states which are asking for more shares in tax revenue and legislative
powers.

COMPARATIVE ANALYSIS OF FEDERALISM IN UNITED STATES,

AUSTRALIA AND INDIA

United States

The federal principle in a federation has two aspects – national unity and state right. This
implies a rigid constitution, the amendment whereof should as a rule, involve the union as
well as the states. The United States constitution achieves this by providing that when
amendments are proposed by federal legislature in constitution, three-fourths of the states
must ratify the amendment before the amendment can become effective. This procedure is
mandatory. It also guarantees to every state in the union a Republican Form of Government
4
Constitution Of India.
5
As quoted by H.M.Seervai in his book “Commentaries on Indian Constitutional Law”

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and shall protect each of them against invasion, and on application of legislature or the
executive (when legislature cannot be convened) against domestic violence. There is also
prohibition against states entering into any treaty, alliance or confederation or any agreement
or compact with another state or with a foreign power without the consent of Congress.

Australia

The Australian federation was set under Commonwealth of Australia Constitution Act, 1900
whose preamble uses the words “Federal Commonwealth”. Before 1900, the colonies in
Australia had (since 1850) their own constitutions still survive, subject to the provisions of
the federal constitution. Division of powers between the states and union is maintained by
special provisions requiring special procedure for amendment, including a referendum of
electors of the Australian House of Representatives. Unlike American Constitution,
Australian Constitution has no express prohibition against an individual state entering into a
treaty. But the exclusive power of legislation on ‘external affairs’ is entering given to the
Australian Commonwealth. The Exclusive powers are: seat of Government of
Commonwealth, places acquired for public purposes, federal public services, customs, excise,
bounties, surrendered territory, navel and military defences and forces and coinage – this had
led to indirect emergence of concurrent list in Australia under Section 107. Australia does not
have a system of dual courts for disputes under Commonwealth legislature and disputes
under state legislation respectively. But disputes between the two are exclusively within
original jurisdiction of the High Court of Australia.

India

The Federal scheme in the Constitution of India is adopted from the Government of India
Act, 1935. The said Act made an innovation upon several precedents to make a treble
enumeration of powers, in order to make it as exhaustive as possible and also to minimize
judicial intervention and litigation. The three legislative lists (I, II and III) respectively
enumerated the powers vested in the Federal Legislature, the Provincial Legislature and to
both of them concurrently (Section 100). If however, a matter was not covered by any of the
three Lists that would be treated as a residuary power of the Federal Parliament (Section 104)
and Section 107 provided for predominance of Federal law in case of inconsistency with a
Provincial Law, in the concurrent sphere.
India makes a three-fold division of powers namely;

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a) List I or the Union List – It contains subjects over which the Union shall have exclusive
powers of legislation, including 97 items. These include defence, foreign affairs, banking,
currency and coinage; union duties and taxes and the like.
b) List II or the State List – It comprises of 66 items or entries over which the State
Legislature shall have exclusive power of legislation, such as public order and police, local
Government, public health and sanitation, agriculture, forests and fisheries, education, State
taxes and duties, and the like.
c) List III or the Concurrent List – It gives concurrent powers to the Union and the State
Legislatures over 47 items, such as Criminal Law and procedure, Civil Procedure, marriage,
contracts, torts, trusts, welfare of labour, social insurance, economic and social planning.

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WHY IS INDIA CALLED QUASI-FEDERAL?

The Supreme Court has commented on the nature of the Indian Union in several judgments. It
has noted that the essence of a ‘federation’ is the existence of the Union of the States, and the
distribution of powers between them. In S.R. Bommai vs. Union of India , it notes the
commonly invoked model of federalism is the United States, by which it is clear that it is a
federation of States. These States were independent and sovereign in their territories, and
decided to form a federation. Their territories cannot be altered by the federal government. In
India, on the other hand, Parliament has the power to admit new States, create new States,
alter their boundaries and their names, and unite or divide the States. In the latest exercise,
the unprecedented act of converting a State into a Union Territory has also been performed.
The concurrence of States is not needed for the formation and unmaking of States and Union
Territories. Further, the court noted the existence of several provisions of the Constitution
that allow the Centre to override the powers of the States. In legislation, there is a Concurrent
List, unlike in the U.S., which outlines the powers of the federal government, and leaves any
matter not mentioned in it as the legislative field for the States. In India, the residuary powers
of legislation, that is the power to make law in a field not specified in the Constitution, is
vested in Parliament, whereas in the U.S., residuary powers are with the States. Further, in
fiscal matters, the power of the States to raise their own resources is limited, and there is a
good deal of dependency on the Centre for financial assistance.

Even though the States are sovereign in their prescribed legislative field, and their executive
power is co-extensive with their legislative powers, it is clear that “the powers of the States
are not coordinate with the Union”. This is why the Constitution is often described as ‘quasi-
federal’.

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IS IT ASSYMMETRICAL FEDERALISM?

The main forms of administrative units in India are the Centre and the States. But there are
other forms, too, all set up to address specific local, historical and geographical contexts.
Besides the Centre and the States, the country has Union Territories with a legislature, and
Union Territories without a legislature.

When the Constitution came into force, the various States and other administrative units were
divided into Parts A, B, C and D. Part A States were the erstwhile provinces, while Part B
consisted of erstwhile princely states and principalities. Part C areas were the erstwhile ‘Chief
Commissioner’s Provinces’. They became Union Territories, and some of them initially got
legislatures and were later upgraded into States. Himachal Pradesh, Manipur, Tripura,
Mizoram, Arunachal Pradesh and Goa belong to this category.

Puducherry and Delhi have legislatures, while the other territories under the Centre do not
have legislatures or a ministerial council to advise the administrator. Even between
Puducherry and Delhi, there is a notable difference. Puducherry has legislative powers on any
matter mentioned in the State List or the Concurrent List, insofar as it applies to the Union
Territory. Delhi, which has the same field, has three further exceptions: police, land and
public order are outside its purview. However, Parliament has overriding powers over any
law made by the Assembly in the Union Territories.

Puducherry has one more unique feature. Despite being a single administrative unit, the
Union Territory is ‘non-contiguous’. That is, its territory is not limited to one extent of land.
Besides Puducherry and its adjoining areas, it has enclaves located within other States:
Karaikal (within Tamil Nadu) Yanam (within Andhra Pradesh) and Mahe (within Kerala).

Just as the Centre and the States do not have matching powers in all matters, there are some
differences in the way some States and other constituent units of the Indian Union relate to
the Centre. This creates a notable asymmetry in the way Indian federalism works.

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 CHALLENGES TO INDIAN FEDERALISM

Regionalism

‘India that is Bharat Shall be Union of States’, it indicates that all the states are part of Union
and no state has the right to secede. Throughout the Constitution, emphasis is laid on the fact
that India is a single united nation and it described as union of states. Article 16 the
constitution guarantees the equality of opportunity in matters relating to employment and it
prohibits the discrimination on the ground of place of birth. While article 19 (1) (d) gives
freedom to every citizen to move freely throughout the territory of India and article 19 (1) (f)
conferred the freedom to reside and settle in any part of the territory of India. But we
witnessed many incidents of attacks on the citizens due to feeling regionalism in different
part of the country. The people in southern part of the country feel neglected. The demand for
formation of new states has become prominent in different part of the country. As the demand
for division of Uttar Pradesh in four parts and Gorkhaland from West Bengal are the
examples of growing regionalism.

Language conflict

Language conflict is also one of the challenges to Indian federalism in different states
because of regional languages. In India, there is no language is considered as national
language. Article 343 of the constitution says that “the official language of the Union shall be
Hindi in Devanagari script.” Recent controversy is related to draft of National Education
Policy, its recommendation on the three-language formula and mandatory Hindi teaching in
schools. As per the policy, three language formula is a means of “promoting multilingual
communicative abilities for a multilingual country” and children would "now be immersed in
three languages early on, starting from the Foundational Stage onwards". This sparked
outrage across the political spectrum in Tamil Nadu. The draft policy should be implemented
only after public hearing. The DMK and other political parties have strongly opposed the
Hindi move and they united against the imposition of the three-language policy, as suggested
in the draft of the National Education Policy that required children in southern states to
compulsorily learn Hindi. The clause recommending mandatory teaching of Hindi in all
schools was dropped from the draft National Education Policy on June 3, 2019, due to protest

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from Tamil Nadu and some other States. It indicates that language based differences exists in
our country.

The indestructible union and destructible units

To protect the unity and integrity of the nation, the Union is made indestructible. But it is not
applicable to states as states can be separated or merged but in federal democracies, it is only
possible with the consent of the states. But in India, the power of making or remaking States
lies with the Parliament. In practice most States has been formed with prior consent of the
States. But in case of formation of Telangana, this practice was ignored. The decision to
divide Andhra Pradesh raises important questions about federalism and the nation’s future.
This was the first time in India that a state was sought to be divided without the consent of
the State legislature, and without a negotiated settlement among stakeholders and regions,
and in the face of public opposition.

Role of Governor

The office of Governor has always been the centre of controversy since the enforcement of
the Constitution. Every time there is debate about the role of Union government in appointing
governor and their role as a representative of the central government. It is also practice that
with the change of government at centre governors are changed by the ruling party. In 1977,
when Janata party came to power, the governors of many states were changed. Same episode
was repeated when Congress returned in power in 1980. Thereafter, also same practice is
followed by every government, whosoever in power. Many commissions were constituted by
various governments from time to time to streamline the appointment and role of Governor,
but in actual practice there has been no positive change.

Economic and social planning

Economic and social planning falls in the Concurrent List of Seventh Schedule, but the Union
exercise authority over national and regional planning in India through NITI Aayog
appointed by the Union. Indian federalism has matured quite a bit, and the states have far
greater control of their economic and political management than in the earlier phase. But it
does not mean that state are doing nothing in this direction, states are also emerging as
eminent participant in process of economic and social planning e.g. health, education,
institutional framework, agriculture development, land reforms and organisational changes
etc.

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CONCLUSION
Thus the framers of the Indian Constitution attempted to exhaust the whole field of legislation
as they could comprehend, into numerous items, thus narrowing down the scope for filling up
the details by the judicial process of amplifying the given items. Besides, wherever any
conflict could be anticipated, the Constitution has given predominance to the Union
jurisdiction, so as to give the Federal system a strong central bias. Similarly, in all the cases
which have come up to the Supreme Court, the Court has upheld the jurisdiction of the Union
Parliament. Thus, in case of overlapping, the power of the State Legislature to legislate with
respect to matters enumerated in the State List has been made subject to the power of the
Union Parliament to legislate in respect of matters enumerated in the Union and Concurrent
Lists, and the entries in the State List have to be interpreted accordingly. Similarly, in the
concurrent sphere, in case of repugnancy between a Union and a State law relating to the
same subject, the former prevails. If, however, the State law was reserved for the assent of the
President and has received such assent, the State law may prevail notwithstanding such
repugnancy, but it would still be competent for Parliament to override such State law by
subsequent legislation.
These apart, the vesting of residual power under the Constitution follows the
precedent of Canada, for it is given to the Union instead of the States as in USA and
Australia. The Constitution of India vests the residuary power i.e.; the power to legislate with
respect to any matter not enumerated in anyone of the three Lists, - in the Union Legislature
(Article 248). However, the final determination as to whether a particular matter falls under
the residuary power or not is that of the Courts.

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 BIBILIOGRAPHY

• K.C Wheare, Federal Government (Oxford University Press, London 1945).

• Younger v. Harris, 401 U.S. 37 (1971)

• Kaleeswaram Raj, Federalism in judicial appointments The Hindu, Sept. 17, 2014

• The Government of India Act, 1919 introduced the diarchy or dual government. See,

M.P. Singh, Outlines of Indian Legal and Constitutional History 169

• H.M. Seervai, Constitutional Law of India (Vol.I) 286.

• I, Constituent Assembly Debates, 57-58.

• Jayaprakash Narayan, “A Challenge to Indian Federalism” The Hindu, Oct. 28,

2013.

• Administrative Reforms Commission, 1966, Raj Mannar Commission, 1971,

Bhagwan Sahai Commission, 1971, Sarkaria Commission, 1983, the National

Commission to review the working of the constitution, 2000 and Second

Adminitrative Reform Commission, 2005.

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