A FEDERAL FRAMEWORK AND A CENTRALISING DRIFT: RE-ASSESSING

FEDERALISM UNDER THE INDIAN CONSTITUTION

- GAUTAM BHATIA

Article 1 of the Constitution stipulates that “India, that is Bharat, shall be a Union of
States.”1 The text of the Constitution’s opening provision thus sets out the two primary
constituents of the Republic: The Union and the states. A significant part of the Constitution is
concerned with the division of powers between the Union and the states: legislative power,
executive power, administrative power, and financial power.
The shape and form of this division of power has been contested throughout independent
India’s history. In the decades immediately after Independence, much of constitutional law was
shaped through tussles between the union and the states over clashing exercises of power and
authority. Much of constitutional law continues to be shaped in that context. A study of the
Indian federal structure – as it has evolved over time – is therefore essential to understand one
crucial way in which the Constitution distributes State power.
A complete study of federalism under the Indian Constitution is the task of several
volumes.2 In this chapter, therefore, I will confine myself to examining certain issues that speak
to the broader themes of this book, concerning the Constitution as a contested terrain of power.
I will begin with a look at some of the constitutional provisions at the heart of India’s federal
design, and examine the popular claim that the Indian Constitution is “quasi-federal”, with a
“central” bias. I will argue that as an interpretive matter, this “central” bias – to the extent that
it exists – offers up two possible readings of Indian federalism: a centralising reading and a
federalising reading (I).
I will then consider an early Supreme Court judgment that – in my view – constitutes an
“inflection point” in the evolution of Indian federalism: State of West Bengal v Union of India.
In State of West Bengal v Union of India, the Supreme Court endorsed the centralising reading
of the Constitution. This reading – I shall argue – proceeded upon a set of contested premises,
but has been crystallised and entrenched by the Court’s jurisprudence in the years following
State of West Bengal v Union of India, contributing to federalism being one of the sites where
the “centralising drift” discussed in Chapter One of this book is most pronounced (II).

1
Article 1, Constitution of India.
2
See e.g. Nirvikar Singh & Govinda Rao, The Political Economy of Federalism in India (OUP 2005).

Electronic copy available at: https://ssrn.com/abstract=4137112

 This “centralising drift” infects multiple parts of the Constitution. In the third section of
this chapter, I shall demonstrate how it is at the heart of the series of dubious constitutional
measures that were utilised to “amend” Article 370 of the Indian Constitution in 2019, remove
the “autonomy” of the State of Jammu and Kashmir, and downgrade its status to a Union
Territory. In my analysis of the “Article 370 Case” – which, at the time of writing, still awaits
a hearing at the Supreme Court – I will also show how the alternative understanding of Indian
federalism, espoused by Justice Subba Rao’s dissenting opinion in State of West Bengal v
Union of India, could apply to a concrete constitutional dispute, with very different
consequences (III).
In the concluding section, I will flag a range of other disputes where the contest between
the centralising and the federalising readings of the Constitution continues to play out, and
continues to contribute to the Constitution’s overall centralising drift. While decades of
encrusted jurisprudence have relegated the federalising interpretation to the margins of
interpretation, its existence continues to light the way to a future that was once possible, and
might – with the passage of time – become possible once again (IV).

I. Words and Silences: Federalism and the Text of the Constitution

Let us begin, as ever, with the constitutional text. As enacted, the Constitution contemplates
a federal structure of governance, existing at two levels: the centre (“union”) and the several
states (“provinces”, before independence). In the 1990s, the 73rd and 74th amendments to the
Constitution added a “third tier” of governance – at the level of the district, or the “Panchayat”
– which, nonetheless, in important and material respects, remains under the control of the
states.3
Having set out the two constituent levels of governance, the Constitution then proceeds to
distribute power between them. The union and the states are allocated legislative power: under
the Seventh Schedule, three lists set out the areas, or “fields”, under which the union and the
states are exclusively or jointly competent to legislate. The Constitution also stipulates that the
executive power enjoyed by the union and the states is co-extensive with their legislative
power. Financially, the Constitution allocates different sources of revenue, from which the
union and the states can raise finances through taxation.4 Lastly, when it comes to

3
For a discussion, see e.g., K.C. Sivaramakrishnan, “Local Government” in The Oxford Handbook of the Indian
Constitution (Choudhry et al eds., OUP 2016)
4
A significant shift in this arrangement was achieved through the 101st Constitutional Amendment, which
introduced the General Sales Tax [“GST”]. A detailed discussion of the GST is beyond the scope of this chapter,

Electronic copy available at: https://ssrn.com/abstract=4137112

administration, the Constitution grants to both the union and the states control over their
respective civil services.5
This distribution of power is, not, however, symmetric. In many fields, the Constitution
skews the balance of power towards the union. The following provisions – all of which have
been analysed in some detail in existing literature – set out the nature of the skew: the union
parliament can destroy and create states, as well as altering their boundaries (Article 3); while
legislative powers are divided between the Union and the states, residuary powers lie with the
Union (Entry 97, List I, Seventh Schedule), and in cases of the exercise of concurrent legislative
power, Union laws receive primacy wherever there is conflict (Article 254); major bases of
taxation (such as income tax, taxes on non-agricultural property, and so on) are assigned to the
union, and – to compound the situation – states’ borrowing and fiscal powers are constrained
by the union, especially in cases of outstanding debt (Article 293)6; the titular (albeit with a
degree of discretionary power) executive heads of states (Governors) are appointed by the
Union (Article 155); state governments can be dismissed by the Union on the ground that
constitutional machinery in a state has broken down (Article 356).7
I will not here dwell at length upon the specific character of these provisions, as there
already exists a substantial volume of literature that deals with them.8 It suffices here to say
that these provisions were the result of conscious design, on part of the framers of the
Constitution. For different reasons, both Nehru and Ambedkar expressed their preferences for
a “strong central authority.”9 The Constituent Assembly’s Union Powers Committee (which
was chaired by Nehru) set out internal peacekeeping, coordination at scale, and international
relations as the reasons why it was desirable for the Constitution to depart from the more federal
structure that had been proposed by the Cabinet Mission Plan.10 In addition to this, scholars
have pointed to various – complementary – reasons for the federal “bias” of the Constitution,
from the independence-era need to construct a national political economy11, to concern for

but at present it is the source of significant conflict between the union and the states, on issues of collection and
distribution of sales tax revenue.
5
Albeit not without a degree of ambiguity. See the discussion in Singh & Rao, The Political Economy of
Federalism in India, (n___), on the bureaucracy.
6
Singh and Rao thus observe that when it comes to finances – as in the sphere of administration and politics – the
Constitution has a “centripetal bias”. Singh and Rao, The Political Economy of Indian Federalism, (n___).
7
For a summary, see – for example – M. Bhattacharya, “The Minds of the Founding Fathers” in Federalism in
India: Origins and Development (Vikas Publishing 1992).
8
See e.g. A. Chanda, Federalism in India (George Allen & Unwin 1965).
9
Singh & Rao, The Political Economy of Indian Federalism, (n___).
10
“Final Report”, Union Powers Committee, Constituent Assembly in B. Shiva Rao, The Framing of India’s
Constitution: Select Documents (Universal Publishing 1968).
11
Louise Tillin, “Building a National Economy: Origins of Centralised Federalism in India” (2021) 51(2) The
Journal of Federalism 161.

Electronic copy available at: https://ssrn.com/abstract=4137112

minorities’ well-being under state governments more prone to capture by entrenched local
power12, to fears of secession and the accompanying desire for a “national citizenship”13.
All of this is an explanation for the federal structure – complete with skew – as it exists
within the Indian Constitution. But what I want to focus on here, instead, is the consequence
of the Constitution’s skew towards the union. Because, while the reasons for the skew are
reflected in the provisions outlined above, where in certain domains state power is evidently
subordinate to union power, neither they, nor the provisions themselves, are exhaustive of the
full gamut of power relations between the union and the states. As we shall see later in this
chapter, the Constitution – inevitably – contains numerous gaps and silences, that have – and
continue to be – terrains of contestation between union power and state power. Nor do the
reasons for the skew amount to an interpretive approach for how these power relations should
be understood in the absence of an explicit regulating provision (as we shall see, this was the
debate in State of West Bengal v Union of India).
Thus, a profusion of terminology, especially beloved of scholars and courts – that India is
an “asymmetric” federation, a federation with a unitary “bias”, or a “quasi-federation”14 –
ultimately obscures more than it reveals. To the extent that it indicates the existence of
provisions explicitly in the Constitution, it is rather banal; to the extent that it indicates how
the relationship between the Union and the states should be understood in other cases, it says
nothing at all. Indeed, and on the face of it, the Constitution’s federal skew presents us with
two at least equally plausible approaches to interpretation. First: one could argue that the
Constitution’s overall design indicates a preference towards a “strong” centre. Consequently,
when in doubt, constitutional provisions should be interpreted in a way that preserves the
union’s powers, rather than taking them away (and vesting them in the state).
But equally, one could argue with as much plausibility that the “skew” in favour of the
union demonstrates that where the Constitution intended to depart from symmetric distribution
of power in favour of the union, it has done so explicitly. Consequently, in all other cases –
cases involving interpretive gaps and silences – constitutional provisions should be read so as
to preserve the Constitution’s federal character (i.e., in favour of state power).

12
Madhav Kholsa, India’s Founding Moment: The Constitution of a Most Surprising Democracy (Harvard
University Press 2020).
13
Uday Mehta, “Indian Constitutionalism: Articulation of a Political Vision”, supra.
14
On the terminology of “quasi-federation”, which has gained substantial currency, see K.C. Wheare, Federal
Government (_____ 1951), and the critique in C.H. Alexandrowicz, “Is India a Federation?”, (1954) 3(3)
International and Comparative Law Quarterly 393.

Electronic copy available at: https://ssrn.com/abstract=4137112

 Let us call these two approaches the centralising and the federalising approach. The history
of constitutional federalism in India has been a contest between the centralising and
federalising approaches. In the next section, we shall study one judgment that marked an
“inflection point” in the history of this contest: State of West Bengal v Union of India, where
the Supreme Court implicitly endorsed the centralising approach – the approach that remains
dominant to this day.15

II. State of West Bengal v Union of India

a. The Majority Judgment
In 1957, the Union Parliament passed a law called the Coal Bearing Areas Act of 1957.
Under the framework of the Act, the central government then issued notifications intending to
acquire land, which was held by the state of West Bengal, for coal prospecting and mining.
The state government approached the Supreme Court, challenging both the law and the
notifications. Its primary argument was that Parliament lacked the constitutional power to
acquire state property.
The key issue was the interpretation of Entry 42 of List III of the Seventh Schedule of the
Indian Constitution. Put simply, the Seventh Schedule sets out the “fields” under which the
respective legislatures – union and state – are competent to pass laws.16 Fields under List I are
within the exclusive competence of the union legislature. Fields under List II are within the
exclusive competence of state legislatures. List III is the Concurrent List, where both the union
and the state legislatures possess the competence to enact laws (with union law prevailing in
case of a conflict).
Entry 42 of List III – the concurrent list – was the only plausible field under which the union
legislature could draw its competence. The Entry reads: “acquisitioning and requisitioning of
property.”17 The state of West Bengal argued, however, that Entry 42 ought to be interpreted
with an implied exclusion: that is, “acquisitioning and requisitioning of property except state
property.”
What was the justification for “reading in” these additional three words, which were not
expressly present in the text of the provision? The state of West Bengal advanced many
arguments. For the purposes of this chapter, one argument is particularly important: that the

15
For a broad agreement with State of West Bengal v Union of India being one of the inflection points in the sense
discussed here, see also Rao & Singh, The Political Economy of Federalism in India, (n___).
16
Schedule VII, Constitution of India.
17
Entry 42, List III, Schedule VII, Constitution of India.

Electronic copy available at: https://ssrn.com/abstract=4137112

concept of federalism implies that within their respective spheres – as assigned by the
Constitution – the union and the states are sovereign entities, and that one sovereign cannot
forcibly acquire the property of another sovereign.
The case was heard by a six-judge bench of the Indian Supreme Court. Realising the
importance of the issue in determining the character of Indian federalism more broadly, the
Court invited all the states of India to make submissions as well (many of them did). Eventually,
by a majority of five to one, the Court upheld the constitutional validity of the law, and rejected
the state of West Bengal’s arguments.
The majority of the Supreme Court arrived at this conclusion by examining the history of
Indian federalism, and then drawing out certain constitutional consequences from that history.
The administration of British India – it noted – had been “unitary and highly centralised.”18
There was a gradual process of devolution that began with constitutional reforms in 1919, and
later, under the 1935 Government of India Act, provincial governments – that were popularly
elected – controlled certain fields of administration (with the writ of the Governor-General –
the agent of the crown – nonetheless remaining supreme). Finally, at the time of Independence,
“the Constitution … was erected on the foundations of the Government of India Act, 1935 …
[while] in some respects a greater degree of economic unity was sought to be secured by
transferring subjects having impact on matters of common interest into the Union List …
particularly in the field of economic unity.”19
What implications did the majority of the Court draw from this schematic history? First, it
observed that “the result was a Constitution which was not true to any traditional pattern of
federation.”20 By “traditional”, the Court appeared to imply federalism, US-style, where a
number of independent states had voluntarily come together and ceded a part of their
sovereignty to form a federation. According to the Court, this was the “truly federal form of
government.”21 By contrast, the Indian situation involved “the withdrawal or resumption of all
the powers of sovereignty into the people of this country and the [subsequent] distribution of
these powers”22 between the union and the states. This was reflected in the fact that states had
no Constitutions of their own, had no power to alter the Constitution, and – particularly
important, according to the Court – the distribution of powers between the union and the states

18
State of West Bengal vs Union of India, 1964 SCR (1) 371.
19
Ibid.
20
Ibid.
21
Ibid.
22
Ibid.

Electronic copy available at: https://ssrn.com/abstract=4137112

was weighed in favour of the union.23 To substantiate this, the Court set out the several
provisions that we have alluded to above, which demonstrated the centralising “skew” of the
Constitution. On these bases, the majority concluded:
That being the extent of the power of the Parliament it would be difficult to hold that
the Parliament which is competent to destroy a State is on account of some assumption
as to absolute sovereignty of the State incompetent effectively to acquire by legislation
designed for that purpose the property owned by the State for governmental purpose.
The parliamentary power of legislation to acquire property is, subject to the express
provisions of the Constitution, unrestricted. To imply limitations on that power on the
assumption of that degree of political sovereignty which makes the States coordinate
with and independent of the Union, is to envisage a Constitutional scheme which does
not exist in law or in practice. On a review of the diverse provisions of the Constitution
the inference is inevitable that the distribution of powers-both legislative and executive-
does not support the theory of full sovereignty in the States so as to render it immune
from the exercise of legislative power of the Union Parliament-particularly in relation
to acquisition of property of the States. That the Parliament may in the ordinary course
not seek to obstruct the normal exercise of the powers which the States have, both
legislative and executive, in the field allotted to them will not be a ground for holding
that the Parliament has no such power if it desires, in exercise of the powers which we
have summarised do so.24

Thus, because the Court could find no “positive interdict”25 against the union legislating to
take away state property, and because an “implied interdict” flowing from state sovereignty as
a necessary consequence of federalism had already been rejected, the state of West Bengal’s
arguments were turned down, and the law was upheld.
A close reading of the majority judgment in State of West Bengal v Union of India thus
reveals that the Court synthesised the structure of the Constitution, and a particular historical
story about its origins, into a legal conclusion. The historical story was that modern India had
always been a unitary state, with devolution of power to provinces being exceptional rather
than the norm. The structural account was that multiple provisions of the Constitution encoded
union supremacy in legislative, executive, administrative, and financial domains. The legal
conclusion that the Court drew from this – as a matter of course – was that any interpretive
dispute between the union and the states, on a question of power, was to be resolved in favour
of the union. This, in essence, is what I call the centralising approach to Indian federalism.

b. The Centralising Approach in Indian Constitutional Jurisprudence

23
Ibid.
24
Ibid.
25
Ibid.

Electronic copy available at: https://ssrn.com/abstract=4137112

 State of West Bengal v Union of India was not the first articulation of the centralising
approach to Indian federalism. Three years before, in Babulal Parate v State of Bombay, the
Supreme Court held that if a proposal for altering state boundaries under Article 3 was
substantially amended after consultation with the state legislature, there was no constitutional
obligation for further consultation – no matter how substantial (or even radical) the amendment
was.26 The Court specifically rejected an argument – drawn from democratic theory – that
substantial alterations to Article 3 proposals should not be implemented before a state’s elected
representatives were given an opportunity to express their views on them.27 While the Court
purported to limit its interpretation to a strict, textual reading of Article 3, assumptions about
Indian federalism were, however, never far from the surface: in language strikingly similar to
what the State of West Bengal v Union of India majority would use, the Court noted that the
“Indian Union” as a sovereign and independent entity preceded the states, that that it was
“significant” that Article 3 alterations to state boundaries did not need to go through the
(stricter) constitutional amendment procedure.28 We have noted above that these seemingly
uncontroversial factual assertions nonetheless smuggle in a range of normative assumptions
into the enquiry, where the Constitution’s existing “skew” in favour of the Union is taken as a
justification for interpreting silences and ambiguities in favour of the Union.
This same centralising approach – that was the basis of the judgments in both Babulal
Parate and State of West Bengal v Union of India – has since informed the Court’s
jurisprudence on a range of issues: it has been invoked, for example, to hold that representatives
to the Council of States (the “Upper House”) need not be domiciled in the state that they purport
to represent29; A complete analysis would need the space of a full book,30 but we can here take
a few illustrative examples, from a range of domains.

1. Federalism and Article 3

The Mullaperiyar Dam is the site of a long-running dispute between the states of Kerala and
Tamil Nadu. It is situated within the state of Kerala, but electricity from the dam is generated
and used by the state of Tamil Nadu. In 2006, the dispute between the two states came to a
head before the Supreme Court, when Kerala’s refusal to allow the raising of the dam’s water

26
Babulal Parate vs State of Bombay, 1960 SCR (1) 605; see also Pradeep Chaudhary vs Union of India (2009)
12 SCC 248, where this view was reaffirmed.
27
Ibid.
28
Ibid.
29
Kuldip Nayyar v Union of India, AIR 2006 SC 3127.
30
Perhaps a many-volumed one.

Electronic copy available at: https://ssrn.com/abstract=4137112

level from 136 feet to 142 feet – following a recommendation of the Central Water Commission
(a body under the aegis of the Union water ministry) – was at issue.31 The state of Tamil Nadu
relied upon an 1886 agreement between the state of Travancore (Kerala’s predecessor state)
and the-then colonial government, read alongside section 108 of the States Reorganisation Act
of 1956, which had creates the state of Kerala. Section 108 – put simply – stipulated that
agreements between predecessor states and the central government pertaining to “irrigation,
power, or multi-purpose projects” would remain in force by default.32 The state of Kerala
argued that section 108 was unconstitutional to the extent that it deprived state legislatures
from legislating on water, which fell under List II of the Seventh Schedule, and therefore, came
within state legislative competence.
The question before the Supreme Court, therefore, was this: when the union legislature
exercised its powers to create new states and reorganise existing state boundaries under Article
3 of the Constitution, to what extent – if any – could it stipulate or constrain future legislative
action by those new and modified states? Under Article 4 of the Constitution, a law under
Article 3 could also contain “such supplemental, incidental, and consequential provisions …
as Parliament may deem necessary”33, and that no such law would be deemed to be an
“amendment” of the Constitution under Article 368.34 Seizing upon this combined reading of
Articles 3 and 4, the Court held that a composite law – such as the States Reorganisation Act –
was an exercise of “paramount” and “supreme” power by the union legislature, and was
therefore “unfettered” by questions of legislative competence and the division of powers under
Schedule VII. Thus, to the extent that stipulating the continuance of prior agreements was
“incidental” or “consequential” to the reorganisation of states, the law was valid even if it
covered fields that were otherwise squarely under List II of the Seventh Schedule.
It is notable, however, that the Constitution itself prescribes no hierarchy between Articles
3 and 4 on the one hand, and Article 246 on the other. There is nothing in the text of the
Constitution that grants state reorganisation laws a status superior to that of ordinary laws,
when it comes to respecting the division of powers between the union and the states. The Court
tried to get around this by observing that because the state of Kerala owed its own existence to
the State Reorganisation Act of 1956, “it would be incongruous to say that the provision in an
Act which gives birth to a State is ultra vires a legislative entry which the State may operate

31
Mullaperiyar Environmental Protection Forum vs Union of India, (2006) 3 SCC 643.
32
Section 108, States Reorganisation Act, 1956.
33
Article 4(1), Constitution of India.
34
Article 4(2), Constitution of India.

Electronic copy available at: https://ssrn.com/abstract=4137112

after it has come into existence.”35 This, however, is illogical: it means that those states that
existed at the time of the framing of the original Constitution have the full protection of the
federal scheme, while states that were formed later do not, with no intelligible difference
between the two categories.
The Court’s finding, however, betrays a deeper set of assumptions. As we have seen before,
while a federal polity may be skewed one way or another, what ultimately matters is that within
their constitutionally-defined domains, the central and federal units are sovereign. Therefore,
the fact that under Articles 3 and 4 the union legislature has the power to create new states and
modify the boundaries of existing states should not change the proposition that whether
predecessor or successor, these states at all times retain their constitutionally-defined domains
of legislative and executive sovereignty, except where expressly denuded of them. The Court’s
judgment is a classic example of the centralising drift: it used the existence of a skew towards
the union within the text of the Constitution (i.e., the power of the union legislature to create
or modify states) as a justification for entrenching greater union power not expressly within the
text of the Constitution (i.e., the accompanying power to dictate or constrain the legislative
power of new states even under List II). The Court could just as easily have noted – for example
– that while the union legislature undoubtedly had the power under Article 3 to create new
states, that power was, in turn, limited: the power to create a new state could not extend to
overriding the federal scheme, and imposing a prior constraint upon how that new state – once
created – could exercise its legislative power.36

2. Federalism and Human Rights

In 1997, in Naga People’s Movement of Human Rights v Union of India37, the Supreme
Court upheld the constitutional validity of the Armed Forces Special Powers Act [“AFSPA”],
a law that empowers the union government to grant certain “special powers” to the armed
forces in declared “disturbed areas”. The AFSPA judgment is remembered primarily for the

35
Mullaperiyar Environmental Protection Forum v Union of India (n___) __. Subsequently, the attempt of the
Kerala legislature to assert its legislative competence by passing a law prohibiting the raising of the water level
on safety grounds, was struck down by the Supreme Court in State of Tamil Nadu v State of Kerala, (2014) 12
SCC 810.
36
This is, indeed, somewhat ironic, as many years before – in Mangal Singh vs Union of India, 1967 SCR (2) 109,
which had concerned the creation of the states of Punjab and Haryana – the Supreme Court had insisted that the
power under Article 4 could not be used to “override the constitutional scheme”, and had rubbished fears that
Article 4 could be invoked to justify the creation of a state without effective legislative, executive or judicial
organs. Four decades later, however, when the situation did involve depriving a state of legislative power (albeit
not its legislative organ), the Supreme Court suggested that the power under Article 4 was, after all, “paramount”
and “unfettered.” The contradiction remains unresolved.
37
Naga People’s Movement of Human Rights vs Union of India 1998 (2) SCC 109.

Electronic copy available at: https://ssrn.com/abstract=4137112

Court’s vindication of armed forces impunity in these “disturbed areas”, but it is also worth
remembering that one of the grounds of challenge to the law was that of federalism: namely,
that “public order” was a state subject, and that the AFSPA was, in essence, a law enacted for
the maintenance of public order (by using the armed forces to do so). It was argued by counsel
challenging the AFSPA that while List I of the Seventh Schedule authorised the union to
legislate on the deployment of armed forces “in aid” of civilian authority, principles of
federalism required that the phrase “in aid” be understood as a referring to a situation where
the armed forces were deployed at the state’s request, and under its supervision and control.
The Supreme Court, however, rejected this interpretation, noting instead that it would be
“desirable” for the state government to be “consulted” before the central government exercised
its powers to declare an area a “disturbed area”, thus triggering the application of the AFSPA.38
This “desirability” has not, however, been borne out in practice, as the history of the AFSPA –
where, notwithstanding requests by state governments, the central government has refused to
remove the law – amply demonstrates. Furthermore, the Naga People’s Movement of Human
Rights also illustrates the close connection between federalism and civil rights under Part III
of the Constitution: the unilateral power of the union executive to deploy armed forces within
state borders – as opposed to placing this decision in the hands of more directly responsive
state governments – has contributed to a situation of impunity and widespread rights violations
over many decades.

3. Federalism and Legislative Relations

This interplay between the entries in the separate Lists has also been at the heart of another
contentious federal issue: the legislative relationship between the centre and the states.
Consider, for example, the judgment of a Constitution Bench of the Supreme Court in I.T.C.
Limited v The Agricultural Produce Market Committee.39 The dispute arose over the clashing
claims of the centre and the state to raise revenue from the production and sale of tobacco.
Purportedly acting under the authority of Entry 52 of List I – which allows the Union
Parliament to legislate on “industries, the control of which by the Union is declared by
Parliament by law to be expedient in the public interest”40 – Parliament passed the Tobacco
Board Act of 1975. This law appeared to clash with the Agricultural Produce Market Act passed
by several states, according to which state governments could levy a market fee upon the

38
Ibid.
39
I.T.C. Ltd. v The Agricultural Produce Market Committee (2002) 9 SCC 232.
40
Entry 52, List I, Seventh Schedule, Constitution of India.

Electronic copy available at: https://ssrn.com/abstract=4137112

purchase and sale of tobacco (which had been classified as “agricultural produce”). These laws
had, in turn, been passed under the authority of Entries 26 – 28 of List II, which authorised
state legislatures to enact legislation on trade and commerce, production, supply and
distribution of goods, and markets, and markets and fairs.41 Counsel for the states argued that
the principles of federalism required the Court to give a narrow meaning to the word “industry”
in Entry 52, so that it excluded – for example – the growing and production of agricultural
produce, such as raw tobacco. This – it was pointed out – was necessary for Entries 26 – 28 to
retain any meaning; any other alternative would allow the Union Parliament – under Entry 52
– to take over vast swathes of legislation – and raising of revenue – that ordinarily belonged to
the states.
The Supreme Court responded by splitting the enquiry into two parts: first, to examine – as
a stand-alone constitutional question – whether the Union Parliament possessed the legislative
competence under Entry 52 of List I to pass the Tobacco Board Act; and secondly, if the answer
to the first question was “yes”, then whether there was an irreconcilable clash between the
Tobacco Board Act and the Agricultural Produce Market Act (“repugnance”), which
necessitated the state law giving way to the union law.42 On the first question, the Court held
that the established doctrine of interpretation was that entries in the Lists had to be given their
“widest amplitude”, and not a narrow, or restricted meaning.43 Upon this reading, the term
“industry” was to be given a broad meaning, which would include the growing and production
of “agricultural produce” as well.44 Responding to the objection that this would denude the
states’ powers under List II, the Court held that the argument was not relevant to the question
of how to interpret the entries in the Lists, but would be considered when looking at whether
both the central and the state laws could co-exist (the second stage of analysis, or the question
of “repugnance”). In this case, the Court found that because the central and the state laws were
directly contradictory, the state law had to yield.45
I suggest, however, that this seemingly innocuous “splitting” of the question bears within it
the assumptions of the centralising approach to federalism. When the Court states that entries
in the legislative lists have to be given a broad meaning, that – by definition – increases the
scope of overlap between central and state laws, rather than reducing it. And in cases of overlap,
the Constitution skews towards the centre, by privileging the union law over the state law, in

41
Entries 26 – 28, List II, Seventh Schedule, Constitution of India.
42
I.T.C. Ltd. vs The Agricultural Produce Market Committee (n___).
43
Ibid.
44
Ibid.
45
Ibid.

Electronic copy available at: https://ssrn.com/abstract=4137112

cases of conflict. Thus, the very act of separating the analysis into two phases – and in the first
phase, by enunciating the seemingly neutral doctrine that entries in the list must be given a
wide and liberal interpretation – the Court entrenched the centralising approach within the field
of legislative relations. It is important to note that the doctrine that entries in a legislative list
ought to be interpreted broadly and liberally makes sense in the case of a unitary Constitution,
where a narrow reading would denude the representative body of law-making power altogether.
However, in a federal Constitution, where power is divided between the centre and the states,
and where the skew favours the centre in cases of conflict, the same doctrine turns into a
normative approach that further entrenches the existing central skew. This is in stark contrast
to the federalising approach which was suggested by counsel for the state: namely, that the
reconciliation should not be left to the second stage – where the central and state laws are
considered, but at the first stage, where the scope of the legislative entries is considered.
We can therefore see how – in the very selection of interpretive doctrine towards the
legislative lists – the Supreme Court made a clear (if somewhat disguised) choice between the
centralising and federalising approaches to Indian federalism.

4. Federalism and Revenue

As we have seen in previous sections of this chapter, the central “skew” in the constitutional
scheme extends to the means and methods of raising revenue (a skew that has recently been
further entrenched through the 101st Constitutional Amendment, which introduced the General
Sales Tax, or the GST). This means that the union will always have substantially more money
than the states, necessitating a procedure for redistribution (or financial transfers) between the
union and the states. In a federal relationship, it is inevitable that a significant disparity in
finances – accompanied by the discretion vested in the more powerful party to decide how to
transfer those finances – will perpetuate and entrench a significant disparity in power. For this
reason, Article 280 of the Constitution contemplates the existence of a (theoretically)
independent Finance Commission, whose task is to lay out the inter se allocation of tax revenue
between the centre and the states, and also the principles that will determine centre-state
financial transfers.46
The Finance Commission has had a chequered history, partially because even as it is
supposed to be independent, it is nonetheless the (union) Parliament that is responsible for

46
Article 280, Constitution of India.

Electronic copy available at: https://ssrn.com/abstract=4137112

deciding the qualifications of members, and their process of selection.47 More than that,
however, right from the inception of the Constitution, its role as the body tasked with
determining the principles governing centre-state transfers was undermined through the
parallel existence of the Planning Commission, a non-constitutional body under the control of
the union cabinet.48 The constitutionality of centre-state transfers that were made on a
discretionary basis outside of the Finance Commission was always controversial; in Bhim
Singh v Union of India49, it came to be challenged before the Supreme Court.
The case concerned the constitutionality of the Members of Parliament Local Area
Development Scheme (MPLADS) – i.e., a scheme through which members of Parliament are
granted union funds for developmental work in their constituencies. We shall consider the
impact of this judgment upon the separation of powers in a later chapter; one key contention,
however, was that discretionary centre-state transfers outside the scope of Article 280 were
unconstitutional.50 On the other hand, Union contended that MPLADS was valid by virtue of
Article 282 of the Constitution, which authorises “the Union or a State [to] make any grants
for any public purpose.”51 In response to this, it was argued that Article 282 was an emergency
provision that could be invoked in order to meet unforeseen, one-time exigencies, but could
not be used to validate regular union-state financial transfers. This argument was supported by
reference to the Constitution’s structure – Article 282 came under a heading titled
“miscellaneous provisions” – but also on the basis that the “fiscal equilibrium” maintained by
the Constitution would be distorted through discretionary fiscal transfers that sidestepped the
Finance Commission.52
The Supreme Court rejected this argument, and held that Article 282 did, indeed, validate
MPLADS. Its reasoning was more or less a mirror-version of State of West Bengal v Union of
India: i.e., that India was not “strictly federal” but “quasi-federal”, that the union had extensive
powers over the states; it then echoed the reasoning of the ITC Ltd. line of judgments, by noting
that “every Article of the Constitution has to be given its widest meaning.”53 On this basis, the
Court held that as long as it was for a “public purpose” – which was also to be interpreted
broadly – a centre-state transfer would fall within the scope of Article 282.54

47
See the discussion in Rao & Singh, The Political Economy of Indian Federalism, (n__).
48
Ibid.
49
Bhim Singh vs Union of India, (2010) 5 SCC 538.
50
Ibid.
51
Article 282, Constitution of India.
52
Bhim Singh vs Union of India, (n___).
53
Ibid.
54
Ibid.

Electronic copy available at: https://ssrn.com/abstract=4137112

 Once again, however, we see that a seemingly neutral doctrine – that of giving constitutional
provisions their broadest possible meaning – is anything but neutral in the context of
federalism. This is because – as we have seen – the existing constitutional scheme creates a
more powerful union, and weaker states – including in the domain of raising revenue. In this
situation of unequal power, a purely discretionary right granted to the union to decide upon
financial transfers to the states perpetuates and entrenches the more powerful position that the
union already enjoys. Article 280 and the Finance Commission – in theory – is designed to
mitigate this imbalance of power by constraining this discretion, and evolving principles that
are not immediately reducible to the domain of partisan politics. Thus, the effect of the Supreme
Court’s judgment in Bhim Singh was to legitimise non-Article 280 union-state transfers, and
validate the further entrenching of the power difference by holding that discretionary transfers
were alternatives to transfers that had to go through the Finance Commission and Article 280.
In this way, in yet another domain, Bhim Singh is an example of the Supreme Court’s
endorsement of the centralising approach to Indian federalism.

c. The Road Not Taken

We have seen how, in State of West Bengal v Union of India, a majority of the Supreme
Court adopted the centralising approach as a self-evident conclusion flowing from history and
from the structure of the Constitution.
And yet, was the conclusion quite as self-evident as the majority made it sound? I suggest
not. First, on history: unsurprisingly, the actual history of Indian federalism in the colonial
period is substantially more complex than the majority’s straightforward account of a unitary
state that engaged in discretionary and incremental devolution to provinces that were created
by its own sufferance. On the contrary, representative government in colonial India – which
first came into being in a partial fashion with constitutional reforms in 1909 – began with
responsible provincial legislatures (at the union level, governance was entirely autocratic). A
(limited) union legislature was birthed many years later.55 With the appearance of responsible
provincial legislatures, demands for provincial autonomy, too, became part of the political
lexicon of colonial India, and featured substantively in constitutional debates leading up to the
period of independence. The existence of independent provincial identity is revealed most
tellingly in the fact that in substantial part, the Constituent Assembly was composed of

55
See the discussion in Arvind Elangovan, Norms and Politics: Sir Benegal Narsing Rau in the Making of the
Indian Constitution, 1939 – 1950 (OUP 2019).

Electronic copy available at: https://ssrn.com/abstract=4137112

members nominated by provincial legislatures, who spoke as representatives of their
provinces.56
The Supreme Court’s fundamental premise, therefore – that the Indian Constitution was
based on the “legal theory” that the all sovereign power was transferred from the British to “the
People” and then “distributed” between the union and the states – is too pat a reading of the
historical record; and its implication – that provincial identity was submerged within a broader,
unitary identity at the time of the framing – at best one possible inference from a complex
historical record. Indeed, as H.M. Seervai notes in his critique of the majority judgment:
Theoretically, it was possible for our Constituent Assembly to have adopted a unitary
Constitution. But the actual working of provincial autonomy in the Provinces of Br.
India, where ministries responsible to the Legislature had functioned effectively, made
such a step impracticable, because the Provinces would have refused to give up the
powers they had enjoyed from 1937 till the Indian Independence Act, 1947.57

The same is true for the majority’s inference from constitutional structure. I have made this
point above, but it bears repeating: the fact that the Constitution has multiple provisions
encoding union supremacy in key domains (what Nirvikar Singh and Govinda Rao call “escape
clause federalism”) does not necessarily imply that union supremacy is the norm even where
there are no provisions (constitutional silences) or where there is scope for interpretive debate
(constitutional ambiguities). Indeed, it could equally well be argued – and would flow from the
alternate reading of Indian federal history that I have advanced above – that the very act of
expressly setting out those domains in which the union was meant to prevail actually encoded
the federal principle: namely that, save as where expressly specified, the Constitution would
have to be interpreted in such a way so as to promote the decentralisation and federation of
power, not its concentration.58
The persuasiveness of this reading is evident from an analysis of Justice Subba Rao’s
dissenting opinion in State of West Bengal v Union of India. Noting that there was no reason
why the American experience of federalism should be taken as a global default, Subba Rao J
observed, alternatively, that:
… pre-existing independent States may not be given any appreciable power under a
constitution, while newly formed States may enjoy larger power under another
constitution. A federal structure is mainly conceived to harmonize existing

56
In the Constituent Assembly Debates, a speaker’s name is immediately followed by the name of the province
that he or she is representing (if applicable).
57
H.M. Seervai, Constitutional Law of India (n___).
58
Such a reading was indeed advanced by a Constitution Bench of the Supreme Court in Govt of NCT of Delhi v
Union of India, 2018 (8) SCC 501. It is also a point made – albeit implicitly – by Alexandrowicz, in a very early
piece on Indian federalism. See C.H. Alexandrowicz, “Is India a Federation?” (n___).

Electronic copy available at: https://ssrn.com/abstract=4137112

 conflicting interests and to provide against future conflicts. India is a vast country:
indeed, it is described as a sub-continent. Historically, before the advent of the
Constitution, there were different Provinces enjoying in practice a fair amount of
autonomy and there were innumerable States with varying forms of government
ranging from pure autocracy to guided democracy. There were also differences in
language, race, religion etc. There were also foreign pockets expected sooner or later to
be incorporated, with the main country. In those circumstances our Constitution adopted
a federal structure with a strong bias towards the Centre. Under such a structure, while
the Centre remains strong to prevent the development of fissiparous tendencies, the
States are made practically autonomous in ordinary times within the spheres allotted to
them.59

This is what I have referred to above as the federalising approach. The federalising
approach is based upon the following historical and normative assumptions, that run counter
to the assumptions of the majority: first, as a matter of history, a federal structure – and the
federal impulse – was a part of Indian constitutional history in the run-up to the framing of the
Constitution – what Seervai refers to as the existence of a “federal situation” in India60;
secondly, that the heterogeneity within the Indian union provides us with a normative reason
for supporting and upholding the federal structure; and that thirdly – and therefore –
interpretive disputes within the Constitution’s already-skewed federal framework are meant to
be resolved in favour of expanded state power, and limited union power. Thus, as Subba Rao
J noted, in words that encapsulate the federalising approach:
The Indian Constitution accepts the federal concept and distributes the sovereign
powers between the co- ordinate constitutional entitles, namely, the Union and the
States. This concept implies that one cannot encroach upon the governmental functions
or instrumentalities of the other, unless the Constitution expressly provides for such
interference.61

As we have seen, however, Justice Subba Rao’s approach has not commanded sustained
acceptance by the Court. This does not mean that the centralising approach has held
unchallenged dominion either: for example, S.R. Bommai v Union of India is a crucial judgment
where a nine-judge bench of the Supreme Court departed from prior precedent and placed
substantive limitations upon when the union could invoke Article 356 and dismiss state
governments. A significant basis of the Court’s ruling was respect for the federal structure, and
the sovereignty of states in their own spheres.62 It is a documented fact that resort to Article
356 reduced significantly after the S.R. Bommai judgment, and on occasion, the Court has

59
State of West Bengal v Union of India, (n___) (Subba Rao J, dissenting) (emphasis supplied).
60
H.M. Seervai, Constitutional Law of India, (n___).
61
State of West Bengal v Union of India, (n___).
62
S.R. Bommai vs Union of India, (1994) 3 SCC 1.

Electronic copy available at: https://ssrn.com/abstract=4137112

restored state governments upon finding that the union illegally resorted to Article 356.
Another potential counter-example is the judgment of the five-judge bench of the Supreme
Court in NCT of Delhi v Union of India63, a dispute between the government of Delhi and the
union government over control of various aspects of the governance of the national capital. By
a majority judgment, the Supreme Court interpreted Article 239AA of the Constitution – that
divided up power between the government of Delhi and the union government – in a manner
that bolstered the federal structure, and prevented the subordination of the former to the latter
– at least rhetorically.64 However, the vagueness in the final holding led to its immediate
dilution by a smaller bench, and at the time of writing, litigation on the subject continues.65 It
is, therefore, too early to definitively say whether this represents a true example of the
federalising approach.
These few counter-examples aside, therefore, it is safe to say that the centralising approach
has been dominant (albeit not without internal resistance). In the next section, we shall look at
the interpretive consequences that follow from this, in the context of one of the starkest federal
controversies in recent times.

III. Federalism and Implied Limitations

On 5th August 2019, the central government and the union parliament embarked upon a
series of constitutional manoeuvres with respect to Article 370 of the Indian Constitution,
which guaranteed an enhanced degree of autonomy to the state of Jammu and Kashmir.66 In
the chapter on asymmetric federalism, I shall discuss the case of Jammu and Kashmir at greater
length. Here, I want to consider the issue from the perspective of federalism more generally;
and, in particular, how the “centralising approach” to federalism has effectively deprived
Indian constitutional jurisprudence of the conceptual vocabulary to address – and tackle – what
was evidently a clear case of abuse of union power.
Simplifying matters greatly, Article 370 of the Indian Constitution – as it then stood –
guaranteed the “special status” of Jammu and Kashmir. It also aimed to prevent its own
evisceration by making the consent of the elected government of Jammu and Kashmir

63
NCT of Delhi vs Union of India, (n___).
64
Ibid.
65
For an account of the constitutional skulduggery that has significantly diluted the original judgment, see Gautam
Bhatia, “Judicial Evasion, Judicial Vagueness, and Judicial Revisionism: A Study of the NCT of Delhi vs Union
of India Judgment(s)” in Constitutional Resilience in South Asia (Khaitan et al eds., ___ 2022).
66
See Presidential Order C.O. 272/2019; Presidential Order C.O. 273/2019; Jammu & Kashmir Reorganisation
Act, 2019.

Electronic copy available at: https://ssrn.com/abstract=4137112

mandatory for any amendment of the terms of the Article (and therefore, as a corollary, any
change to the relationship between Jammu and Kashmir and the rest of India).67
The central government got around this barrier by a simple stratagem: a year and a half
before the events of August 5, 2019, the government of Jammu and Kashmir had lost its
majority in the legislature, and had fallen. Instead of fresh elections being scheduled within
short order, what had happened, instead, was that the central government had taken over the
state through the imposition of President’s Rule, under Article 356 of the Constitution (meant
for situations where a state’s constitutional machinery breaks down). As long as Article 356 is
in operation, a state’s government is the central government (acting through the President).
Thus, as the state of Jammu and Kashmir was under President’s Rule, the central government
interpreted the term “government of Jammu and Kashmir” in Article 370 to mean itself, and
thereupon, it took its own consent, and amended Article 370 to remove the formal autonomy
enjoyed by the state.
Once that was achieved, the scene shifted to the union parliament, where the government
had a brute majority. The union parliament passed a law that stripped Jammu and Kashmir of
statehood, and turned it into a union territory (i.e., territories within India that – to various
degrees – are directly controlled by the central government).68 In doing so, the union parliament
purported to act under Article 3 of the Constitution which – as we have seen – authorises
parliament to create and extinguish states, or alter their boundaries, subject only to consultation
with the legislature of the affected state.69
The events of 5th October, 2019, therefore, raised two stark federal questions. The first was
whether Article 356 of the Constitution imposed any limits upon what the central government
could do to a state while it was acting as a – supposedly temporary – stand-in for the elected
state government. And the second was whether, acting under Article 3, the union parliament
could unilaterally degrade a state into a union territory, under central control. Importantly, both
these questions involved constitutional silences: the language of Articles 356 and 3 does not
place express limitations upon the actions of the central government and of the union
parliament. Any limitations, thus, would have to be implied, as a matter of principle: and that,
in turn, would depend upon what the Supreme Court in State of West Bengal v Union of India
had called “the legal theory” of Indian federalism, and what I – in this chapter – have labelled
the distinction between the centralising and federalising approaches to Indian federalism.

67
Article 370, Constitution of India (as it stood before 5th August, 2019).
68
Jammu & Kashmir Reorganisation Act, 2019.
69
Article 3, Constitution of India.

Electronic copy available at: https://ssrn.com/abstract=4137112

 Under the centralising approach, the answers would be straightforward. The Constitution,
after all, places no express restrictions upon the union executive under Article 356, or upon the
union parliament, under Article 3. This ends the debate: under the centralising approach, the
default interpretation is that the power to do something is with the centre, unless explicitly
constrained.
The federalising approach, however, would yield a more complex set of solutions to the
problems at hand – solutions that (I suggest) are closer to our intuition about what a fair balance
between central and state powers under the Constitution ought to look like.
On the first question, the federalising approach would begin by asking why the power under
Article 356 exists in the first place. The location of Article 356 within the “Emergency
Provisions” chapter of the Constitution suggests the answer: it exists to deal with exceptional
situations, where the governance of a state has broken down so badly, that it is impossible to
continue with things in a constitutional manner. The job of the union – in such situations – is
therefore restorative: in other words, to step in until “normal service” can be restored.
The task of restoration must be distinguished from the task of substitution. During
President’s Rule, the union does not replace the state government in the same way that a new
government replaces the old after an election. The union is a caretaker, holding the fort until
the owners are in a position to move back in.
The rationale underlying Article 356 therefore places certain implied limitations upon what
the union can do during the period of President’s Rule. In particular, it cannot initiate changes
or alterations to a state’s governance or structure that its elected legislature would not be able
to undo when – eventually – normal service is restored (think of it as a caretaker deciding to
make sell two floors of a house to another person). Because if the union had that power, then
it would – effectively – place the states at the absolute – and permanent – mercy of the union:
as in the case of Jammu and Kashmir, a period of President’s Rule (or “Emergency”) could be
used to alter the basic structure of a state, or strip a state’s legislature of its own powers, leaving
it unable to take any effective action even upon the restoration of “normalcy” (and the
restoration of the elected legislature as the democratic, law-making organ for the state). This
would, however, make a mockery of the basic idea that the union only takes over a state’s
governing apparatus in an “emergency” – an emergency that is meant to be an unavoidable –
but temporary – departure from the basic principle that at all other times, the union and the
states remain sovereign in their respective spheres. It is here, however, that we can see how the
intellectual force of this argument lies in Justice Subba Rao’s dissenting opinion in State of
West Bengal v Union of India: implied limitations upon union power under Article 356 flow

Electronic copy available at: https://ssrn.com/abstract=4137112

from the basic idea – articulated by Subba Rao J in his dissent – that however much the structure
of the Constitution “skews” towards the centre, this does not negate the core federal principle
that, by default, and in their respective spheres, the federal organs (union and state) are mean
to be sovereign.
Let us now consider Article 3. One may look at the text of the article and ask – if the
legislature can unilaterally create new states, alter the boundaries of existing states, merge one
or more states into each other, or even extinguish a state – why it cannot degrade a state into a
union territory (i.e., in other words, bringing a prior constituent unit of the federation under
direct union control). The answer to this, however, is that in all the illustrations set out under
Article 3, while the character of an individual state might be altered, there is no change to what
Seervai calls the “federal situation”. In other words, both before and after an alteration that is
envisaged by the express terms of Article 3, India remains – as Article 1 of the Constitution
requires – “a union of states.”
The power to unilaterally degrade a state into a union territory contravenes this fundamental
injunction – i.e., that whatever the fate of an individual state, the federation must continue to
exist. Conceptually, the power to degrade a state into a union territory contains within it the
power to convert India from a union of states to a union of union territories under central control
(because – again – conceptually, what can be done to one state can be done to all). Once again,
therefore, this is a question of implied limitations: the power of the union (in this case, the
union parliament) under Article 3 is limited by the principle that one constituent of the
federation – the union – cannot alter (or in this case, erase) the federal structure itself, although
it can alter (or even erase) another constituent of the federation (i.e., any given state).
As with Article 356, we can see that the interpretation of Article 3 is not exhausted by its
text. Both provisions are terrains of contestation, and the contestation is about power: in a
Constitution that already empowers central organs over state organs, how ought we to read
constitutional gaps, constitutional ambiguities, and constitutional silences? In a manner that
further entrenches this power imbalance (the centralising approach), or in a manner that
mitigates or counteracts it (the federalising approach)?
The answer depends, ultimately, on what one believes the Constitution is for, and how it
ought to speak to the question of concentrating and distributing power. I will suggest, however,
that the Jammu and Kashmir case shows how the federalising approach accords more closely
with a basic sense of equality, fairness, and the rule of law. The events of 5th August – the year-
and-a-half-long compelled absence of the elected state legislature, the constitutional maneuvres
that were accomplished by the same entity taking its own consent to bring about the desired

Electronic copy available at: https://ssrn.com/abstract=4137112

constitutional changes, and the forcible degradation of the state of Jammu & Kashmir into a
union territory directly controlled by the central government – are classic examples of abuse of
power, and of constitutional hardball. And in another way, these were all illustrations of how
the “skew” in the constitutional scheme – exemplified through provisions such as Articles 3
and 356 – was exploited by the more powerful constitutional actor (the union government, and
– by extension – the union parliament) to assert even greater dominance over the federation’s
other constitutive entity – the states – by making an example of one particularly recalcitrant
instance.
An interpretation of the Constitution that favours such moves only serves to accelerate the
centralising drift that we have discussed – i.e., greater and greater concentration of power in
the centre (and primarily, the union executive), at the direct cost of all other constitutional
institutions (in this case, the states). What I have attempted to show in this section is that an
alternative interpretation – one that seeks to federate power rather than concentrate it (hence,
the “federalising approach”) is plausible, and has indeed been articulated before by the
Supreme Court. It remains to be seen whether it will find favour with the “wisdom of a future
day.”

IV. On the Road to a Unitary State

In October 2021, the union government issued a notification extending the jurisdiction of
the Border Security Force [“BSF”] from fifteen kilometres to fifty kilometres from the
international border, in the state of Punjab, West Bengal, and Assam. Under the BSF Act of
1968, policing functions – otherwise a state subject – are vested in the centrally-controlled
BSF70, with the ostensible objective of preventing trans-border crime and protecting national
security along India’s international borders. State governments that were governed by
opposition political parties at the time objected to the government’s notification, pointing out
– among other things – that this would bring almost a third of the area of these states under
union policing. It is here, however, that the historically expansive reading of the Seventh
Schedule Lists ends up restricting these objections to the political domain, with their success –
or failure – hinging only upon the balance of political forces at the time. As the judgments in
Naga People’s Movement for Human Rights and Kartar Singh have shown us, the Supreme
Court has been particularly resistant to federal concerns71 once the union invokes “national

70
Border Security Force Act, 1968.
71
Or for that matter, any other concern, including that of civil rights!

Electronic copy available at: https://ssrn.com/abstract=4137112

security” as the basis for justifying legislative competence – even if this potentially means
stretching the idea of a “border” beyond its common sense meaning!
Consider also the bitter political controversy that erupted in 2020 and 2021 over the union
government’s attempts to pass what colloquially came to be known as “the farm laws”:
legislation that – in effect – sought to erode various state-level structures that insulated
agriculture from the full effects of the market economy. Year-long protests eventually
compelled the union government to “withdraw” the three laws, but it is important to note that
a significant part of the conflict centred around the real meaning of Indian federalism. Under
Schedule VII, “agriculture” is a state subject, while “trade and commerce in … foodstuffs” is
in the Concurrent List.72 The constitutional question, thus, would turn on the interpretation of
the entries of the Lists where – as we have seen – the Supreme Court’s doctrine of broad and
liberal construction has further entrenched union power at the expense of state power. In this
context, it is striking that protests against the laws continued even after the filing of
constitutional challenges before the Supreme Court, indicating – among other things – a lack
of confidence in the Court as an arbitrator of union-state relations.
These two examples (and there are many more!) demonstrate how federalism in India is
continuing site of contestation between union power and state power, and how the legacies of
past constitutional events affect centre-state relations in the present. To be sure, it is not my
case that this contestation of power is exhausted by the constitutional text and by the judgments
of the courts. As the trajectory of the farm laws, in particular, show us, political forces can even
be better guardians of state interests than the Constitution and the courts. That said, however,
the impact of the constitutional text – and its interpretation by courts – plays a significant role
in impacting the balance of power. In this context, therefore, it is important to study what the
Constitution says and what the courts have done.
On doing that, what we find is that in crucial respects, the Constitution “skews” towards the
union when it comes to distributing power between the union and the states, through a variety
of textual devices: notwithstanding clauses, escape clauses, residuary powers, emergency
provisions, and so on. With a few exceptions, the judgments of the courts have entrenched and
amplified this skew, contributing to the “centralising drift” that we have seen across different
domains. In this chapter, I have tried to show that while this approach – the centralising
approach to federalism – is dominant, it is not inevitable: judgments such as Justice Subba

72
Entry 33, List III, Seventh Schedule, Constitution of India.

Electronic copy available at: https://ssrn.com/abstract=4137112

Rao’s dissent in State of West Bengal vs Union of India indicate an alternative – “federalising”
approach to constitutional interpretation.
There are, however, two issues that remain. The first is that – as we shall see in other parts
of this book – on a prima facie reading, the text of the Constitution encourages the centralising
approach to Indian federalism. After all, it is easy enough to look at the entire portmanteau of
constitutional provisions – from Article 3 to Article 356 – and conclude that state power does
not really count for much in the constitutional scheme. In this chapter, I have tried to show why
that prima facie reading deserves some rethinking on taking a deeper look at the Constitution’s
text, structure, and history. This reading, however, can appear counter-intuitive at first brush,
and requires the filling in of gaps and silences through interpretive doctrines such as that of
implied limitations. In other words, the federalising approach – when it comes to court – places
a significantly greater interpretive burden upon the judiciary than the centralising approach, a
burden that for a variety of reasons (including, once again, the balance of political forces), it
may not be (sometimes justifiably) willing to take upon itself. We therefore come back to a
common theme of this book: the constitutional provisions do not preclude a pushback (judicial
or otherwise) against the centralising drift, but they do erect a barrier against such a pushback.
The second issue is that interpretation, of course, has its limits. Even if all the judgments
that we have discussed in this chapter – from State of West Bengal vs Union of India, to Babulal
Parate, to I.T.C. were decided the other way, we would still be left with a Constitution in which
Articles 3 and 356, and everything in between, are realities. It is questionable whether a
constitutional text so skewed from the outset could ever satisfactorily prevent a centralising
drift: a skewed balance of power, after all, tends to protect, entrench, and aggrandise itself,
rather than the other way around. In this context, the history of interpretation that we have
discussed in this chapter might serve as a valuable guide for what not to do, should there come
a day when the balance of power between the union and the states (and beyond) is substantively
reconsidered.

Electronic copy available at: https://ssrn.com/abstract=4137112