FEDERALISM

Indian Constitution- Federal or Unitary

Constitution of India- Whether Federal or Unitary

It has been the matter of debate among the scholars that whether the constitution of India is completely federal or unitary in nature. But actually Indian constitution
contains both features of a federal constitution and unitary constitution. But for the very clear picture of this conclusion first of all we have to know that what is the federal
constitution and what is unitary constitution. What feature of Indian constitution makes it federal or what features makes it unitary.
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 defined 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.
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 (sub national units) exercise only powers that the central
government chooses to delegate.

Federal Features of Indian Constitution

Supremacy of the Constitution: This is one of the federal features of the Indian constitution. The supremacy of the constitution means that both, the Union and the State
Governments, shall operate within the limits set by the Constitution. And both the union government and the central government derive their powers from the
constitution. Written Constitution The most important feature of a federation is that its constitution should be a written one. The Constitution of India is a written
constitution is the most elaborate Constitution of the world.
Rigid Constitution: The constitution of India is a rigid constitution and this is one of the basic features of federal constitution. The procedure of amending the Constitution
in a federal system is normally rigid. Indian Constitution provides that some amendments require a special majority. Such an amendment has to be passed by majority of
total members of each house of the Parliament as well as by two-thirds majority of the members present and voting there in. However, in addition to this process, some
amendments must be approved by at least 50% of the states. After this procedure the amendment is signed by the head of the state i.e; the President. Since in India
important amendments can be amended through this procedure Hence, Indian Constitution has been rightly called a rigid constitution.
Division of Powers:
In Indian constitution the powers of state and centre are clearly defined and there are very clear limits of both the centre and the state for law making powers. Our
constitution enumerates three lists, viz. the Union, the State and the Concurrent List. The Union List consists of 97 subjects of national importance such as Defence,
Railways, Post and Telegraph, etc. The State List consists of 66 subjects of local interest such as Public Health, Police etc. The Concurrent List has 47 subjects important
to both the Union and the State such as Electricity, Trade Union, Economic and Social Planning, etc.
Supremacy of the Judiciary: Supremacy of judiciary is another very important feature of a federal state where there is an independent judiciary to interpret the
Constitution and to maintain its sanctity. The Supreme Court of India has the original jurisdiction to settle disputes between the Union and the States. It can declare a law
as unconstitutional, if it contravenes any provision of the Constitution.
Unitary Features of Indian Constitution:
In spite of the fact that the Indian Constitution establishes a federal structure, it is indeed very difficult to put the Indian Constitution in the category of a true federation.
The following provision of Indian constitution makes it unitary
Union of States; Article I of the Constitution describes India as a ‘Union of States’, which implies two things: firstly, it is not the result of an agreement among the
States and secondly, the States have no freedom to secede or separate from the Union. Besides, the Constitution of the Union and the States is a single framework from
which neither can get out and within which they must function. The federation is a union because it is indestructible and helps to maintain the unity of the country.
Appointment of Governor: Art 155 and 156 provide that the Governor, who is the constitutional head of a State, is to be appointed by the President and stays only until
the pleasure of the President The Centre may take over the administration of the State on the recommendations of the Governor or otherwise. In other words, Governor
is the agent of the Centre in the States. The working of Indian federal system clearly reveals that the Governor has acted more as centre’s representative than as the
head of the State. This enables the Union government to exercise control over the State administration.
Representation in the Legislature: The equality of units in a federation is best guaranteed by their equal representation in the Uppers House of the federal legislature
(Parliament). However, this is not applicable in case of Indian States. They have unequal representation in the Rajya Sabha. In a true federation such as that of United
State of America every State irrespective of their size in terms of area or population it sends two representatives in the upper House i.e. Senate.
Appointment on Key Positions: In addition to all this, all important appointments such as the Chief Election Commissioner, the Comptroller and Auditor General are
made by the Union Government. Besides, there is single citizenship. There is no provision for separate Constitutions for the states. The States cannot propose
amendments to, the Constitution. As such amendments can only be made by the Union Parliament. All India Services such as IAS and IPS have been created which are
kept under the control of the Union. In financial matters too, the States depend upon the Union to a great extent. The States do not possess adequate financial resources
to meet their requirements. During Financial Emergency, the Center exercises full control over the State’s finances.
Disturbances in the state: In case of disturbances in any State or part thereof, the Union Government is empowered to depute Central Force in the State or to the
disturbed part of the State. Also, the Parliament, by law may increase or decrease the area of any State and may alter its name and boundaries.
Unified Judiciary: The federal principle envisages a dual system of Courts. But, in India we have unified Judiciary with the Supreme Court at the apex.
Power to make laws: The Constitution of India empowered the central government to make laws on the subjects in the state list. It is exercised only on the matters of
national importance and that too if the Rajya Sabha agrees with 2/3 majority. The constitution establishes a strong Centre by assigning all-important subjects to the
Centre as per the Union List. The State Governments have very limited powers.
Power to form new states and to change existing boundaries:
Under Art 3, center can change the boundaries of existing states and can carve out new states. This should be seen in the perspective of the historical situation at the
time of independence. At that time there were no independent states. There were only provinces that were formed by the British based on administrative convenience. At
that time States were artificially created and a provision to alter the boundaries and to create new states was kept so that appropriate changes could be made as per
requirement. It should be noted that British India did not have states similar to the States in the USA.
Emergency Provisions:
The President of India can declare three different types of emergency under article 352, article 356 and article 360 for an act of foreign aggression or internal armed
rebellion, failure of constitutional machinery in a state and financial emergency respectively.. During the operation of an emergency, the powers of the State Governments
are greatly curtailed and the Union Government becomes all in all.
Conclusion
From the above discussion it is seen that the constitution of India neither is the complete federation nor it is completely unitary. It has the features of both. Si r Ivor
Jennings was of the view that India has a federation with a strong centralizing policy. In the words of D.D.Basu, the Consti tution of India is neither purely federal nor
unitary, but is a combination of both. It is a union or a composite of a novel type. It is often defined to be quasi-federal in nature. Thus we can safely say that It is primarly
Unitary having some unitary features.

Is India a federal state? According to one view, in spite of the fact that the Indian Constitution established a ‘federal’ state, it is indeed difficult to
put the Indian State in the category of a true “federation”. Let us go back into history. In pre-independence India there were actually two ‘Indias’.
One was ‘British India’ and another was ‘Native India’, the latter ruled by Rajahas, Maharajahs, Nawabs and even a Nizam. Of the latter, there
were about 600 ‘princely’ states, large and small, while the British had eleven ‘provinces’ and four Chief Commissioner’s provinces under their
control.

Shortly after independence the princely states were integrated within the Indian Union and became part of a full-fledged India; a couple of states
may have dithered like Hyderabad and Jammu & Kashmir, but soon they took came to be absorbed in the larger India, though the exact nature of
Jammu & Kashmir’s status remains to be defined. So there was no question of any ‘native’ state remaining free or dictating terms to become part
of a “federation”. The very concept of ‘federation’, in the circumstances, is misleading. States like Hyderabad, Mysore, Travancore-Cochin totally
lost their identity by becoming part of a larger India. That the provinces to which they were attached subsequently were re-organised along
linguistic lines is another story. The authority to do so lay with the Centre.

Under the Constitution which came into existence on January 26, 1950, it is the Centre which is supreme and beyond challenge. But, as Justices
Reddy and Agarwal once noted, “the fact that under the scheme of our Constitution, greater power is conferred upon the Centre vis-à-vis the state,
does not mean that the states are mere appendages of the Centre, but “within the spheres allotted to them, states are supreme”. In recent times,
some of the states like West Bengal, Orissa and six others have questioned the right of the Centre to pass certain legislation dealing with terrorism
without their being consulted. This is in regard to the proposed National Counter-Terrorism Centre. Law and Order is a state subject and it was
incumbent on Home Minister Chidambaram to take on board the offended Chief Ministers of eight states (West Bengal, Gujarat, Bihar, Orissa,
Tamil Nadu, Madhya Pradesh, Himachal Pradesh and Punjab) before drawing up the anti-Terror legislation.

The first mistake that Chidambaram made was to club all existing domestic and foreign intelligence agencies under one omnibus structure under
the Home Ministry. That was sheer arrogance. As the media pointed out, “the bone of contention in the proposed NCTC was the free hand the
Centre sought to grant it to undertake search and arrest procedures throughout the country without first getting the nod of the state governments.
….. Given the rampant misuse of such powers by an increasingly authoritarian Centre to harass Opposition-run governments, the refusal of the
CMs to surrender their powers is not without merit. For, in the name of fighting terror there are fears that the Centre may well use the special
powers of search and arrest to harass persons politically inconvenient to it. The Congress’ record in this regard is most untrustworthy”. In his
book The Constitution of India: A Political and Legal Study, J.C. Johari states the situation clearly. To quote him: First, we have a federal system
in which the positions of the units is not as strong as that of the States of the United States or of the cantons of Switzerland. Second, parliamentary
form of government has been set up both at the Centre and in the states as a result of which, the structure of the State Governments is similar to
that of the Centre. As the President is the titular head of the Indian State and the real authority is vested in the Council of Ministers, headed by the
Prime Minister, collectively responsible to the Lok Sabha, so, at the state level, the Governor is the constitutional head and the real authority is
vested in the Council of Ministers, with the Chief Minister at the head. The state of Jammu & Kashmir is an exception. India may be called a
federal state, but it must be remembered that the component states are not ‘free’ states that agreed to enter into a federation, but are geographical
areas the sizes of which can be increased or decreased by the Centre.

The Centre, as Johari clearly states “alone is empowered to redraw the political map of the country”. Parliament may, by law, admit into the
Union, or establish new states on such terms as it thinks fit. As Article 3 states clearly: “The Parliament may, by law (a) form a new state by
separation of territory from any state or by uniting two or more states or parts of states or by uniting any territory to a part of any state.
Parliament too, can alter the name of any state. Thus, Parliament made laws whereby the former state of Mysore came to be called Karnataka and
the remains of a divided state of Madras came to be known as Tamil Nadu, an when the then Bombay Province was broken up, we had states like
Gujarat and Maharashtra, with some parts of the old Province being allotted to Karnataka.” A state can make suggestions, officially through the
concerned legislature, but they won’t be binding on the Centre. Uttar Pradesh Chief Minister Mayavati may suggest the further break up of her
state and get her legislature to move a resolution to that end, but there her power stops. But is there a possibility of another States Reorganisation
Commission being appointed to redraw the map of the country to suit current demands?

Time was when the concept of a linguistic state was the fashion of the hour. No more. Increasingly one hears demands for the creation of a
Telangana and a Vidharbha from the existing states of Andhra Pradesh and Maharashtra. And if a Vidharbha can be created why shouldn’t
Maharashtra be further divided to make way for a Konkan State? In the run up to the reorganisation of Indian States in 1956, Prime Minister
Jawaharlal Nehru is quoted as saying that “small states will have small minds”. That is putting it mildly. Considering the number of criminals who
get elected both to Parliament and states, one can’t get over the feeling that in smaller states it is a cabal of criminals who may come to power and
wreak havoc to the law and order situation throughout the land.

Corruption may turn out to be the order of the day and terrorism may become official policy. There are some like senior journalist BG Verghese
who has been quoted as saying that “there is nothing wrong in envisaging India at 2040-50 with a population of around 1,600 million organised in
60 states with an average population of 25 million each and some 1,500 districts”. The historian Ramachandra Guha is also quoted as saying that
a new State Reorganisation Commission would look dispassionately for Vidharbha, Gorkhaland, Harit Pradesh, Kongu Nadu (Western Tamil
Nadu), besides which the emphasis should also be on granting real financial and political autonomy to panchayatas and municipalities. It may
sound great to acknowledge not linguistic but “cultural” states, but in the end they may prove disastrous.

As it is, the MNS in Mumbai has been opposed to ‘outsiders’ – especially labour from Bihar – from making Mumbai their home. Creating states
like Gorkhaland will further strengthen fissiparous tendencies and encourage chauvinism of the worst kind, thus killing the essential unity of the
country. Under no circumstances should India be further divided along ‘cultural’ grounds. Creation of linguistic states was bad enough; the
division of say, even a state like Karnataka, along Lingayat, Gowd and other categories would be totally damaging. At stake would be ‘The Idea of
India, that is Bharat’. Would the creation of a ‘Unitary’ state, with the nation divided into districts and the districts run by District Boards, help in
preserving the unity of the country? Do we need to experiment all the time? The ultimate aim must be for the preservation of the essential unity of
the country and any division that perpetuates linguistic, cultural and ethnic groups must be fought tooth and nail. And that said, all is said.

In one word, Indian Constitution has a Federal structure with a very strong Unitary bias. This is in fact one of the BASIC FEATURES
of the Constitution of India. India is divided into many states and union territories; all these states are free to Legislate over
different issues as specified in the STATE LIST of the Indian Constitution. The Union Government of India Legislates over another
specified list, the UNION LIST. there is also another list, CONCURRENT LIST, over which both the Union Government and the various
State Government can legislate. But in case of any conflict between the STATE and the UNION Laws, obviously the latter prevails
over the former.
Again, the structure of the Constitution of India is such that it is possible for the Union Govt. to take out any entry from the State List
or Concurrent List and place it in the exclusive Union List, by way of making an amendment in the Constitution. Moreover, under the
EMERGENCY Provisions of the Constitution, the Central/Union Government can assume absolute powers, without the States having
any say. Therefore, it is accurate to say that the system or structure prevailing in India is a Federal structure with a strong unitary
bias.
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http://rechtboy.wordpress.com/2007/09/01/functional-and-legislative-theories-of-federalism/