Module 3

The Nature of Federalism

• Federalism constitutes a complex governmental mechanism for governance of a country

• A federal constitution establishes a dual polity as it comprises two levels of government

• At one level, there exists a Central Government having jurisdiction over the whole country and

reaching down to the person and property of every individual therein. At the other level, there exist the

regional governments (State Governments), each of which exercises, jurisdiction in one of the

regions or administrative units into which the country is divided under the constitution.

• The two levels of government divide and share the totality of governmental functions and

powers between themselves

• A federal constitution envisages a demarcation or division (not to be confused with Separation of Powers which

indicates the distribution of powers between the 3 organs of Government i.e. the Legislature, the Executive and the

Judiciary) of governmental functions and powers between the Centre and the regions

• The demarcation is usually done by the sanction of the Constitution itself which is usually a written document and also

a rigid one, i.e., which is not capable of amendment easily. (True for India as our Constitution itself provides for the

division of governmental functions and powers between the Central Govt and the State Govt)

• Consequences of having a Federal structure

(1) that any invasion by one level of government on the area assigned to the other level of government is a breach of the

constitution; and

(2) that such a breach of the constitution is a justiciable issue to be determined by the courts. Each level of government thus

functions within the area assigned to it by the constitution.

• The several governments do not, however, function in watertight compartments. Their areas of
operation and functioning cross and intersect in several respects thus creating a variety of
governmental relations between the Centre and the regions and between the regions inter se.

• Federalism is considered as part of the Basic structure of the Indian Constitution in several
judgements
Union and its territory

• India has been characterized as a ‘Union of States’ [Art. 1(1)].

• The territory of India comprises States, Union Territories and any other
territory that may be acquired by the Government of India at any time

• Parliament may by law

• admit into the Union,
• or establish, new States
• on such terms and conditions as it thinks fit.
 Formation of new States and alteration of areas, boundaries or names of existing
States: Article 3
• When this article was being drafted, the Princely States had not been fully integrated.

• There were demands of reorganizing the States on linguistic basis. The Constituent Assembly foresaw that such reorganization could not
be postponed for long. Accordingly, Art. 3 was incorporated in the Constitution providing for an easy and simple method for
reorganization of the States at any point of time.

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;
(b) increase the area of any State;
(c) diminish the area of any State;
(d) alter the boundaries of any State;
(e) alter the name of any State:
 The exercise of this power by Parliament is subject to the following conditions

(1) A Bill for any such purpose cannot be introduced in a House of Parliament except on the
recommendation of the President.

(2) If the Bill affects the area, name or boundaries of a State, then before recommending its
consideration to Parliament, the President has to refer the same to the State Legislature
concerned for expressing its views on it within such time as he may fix

• The purpose of the provision is to give an opportunity to the State Legislature concerned to express its
views on the proposals contained in the Bill.

• Parliament is in no way bound by these views.

• Multiple Reorganization commissions have been set up and have led to the Parliament reorganizing
states and UTs
• Laws made under articles 2 and 3 can provide for the amendment of the First and the
Fourth Schedules and supplemental, incidental and consequential matters and they
shall not be considered to be an Amendment for the purpose of Article 368
Babu Lal Parate v. State of Bombay AIR 1960 SC 51 :
If once a Bill has been referred to the State Legislature, it can later be amended by Parliament and no fresh reference to the State
Legislature is required to ascertain its views on the proposed amendments
• A Bill introduced in the House of the People on the report of the States Reorganisation Commission and as
recommended by the President under the proviso to Art. 3 of the Constitution, contained a proposal for
the formation of three separate units, viz.,
• Union territory of Bombay,
• Maharashtra, including Marathawada and Vidarbha and
• Gujrat, including Saurashtra and kutch.

• This Bill was referred by the President to the State Legislatures concerned and their views were obtained.
• The joint Select Committee of the House of the People (Lok Sabha) and the Council of States (Rajya
Sabha) considered the Bill and made its report.
• Subsequently, Parliament amended some of the clauses and passed the Bill which came to be known as the
States Reorganisation Act, 1956.
• That Act by s.8(1) constituted a composite State of Bombay instead of the three separate units as originally
proposed in the Bill.
• The petition , out of which the present appeal has arisen, was filed by the appellant
under Art. 226 of the Constitution in the High Court of Bombay.

• His contention was that the said Act was passed in contravention of the provisions of
Art. 3 of the Constitution, since the Legislature of Bombay had not been given an
opportunity of expressing its views on the formation of the composite State. The
High Court dismissed the petition.

• Supreme Court affirmed the High Court’s decision

In Re: The Berubari Union and Exchange of Enclaves Reference, AIR 1960 SC 845
• To settle certain boundary disputes, India had agreed to transfer some territory to Pakistan.

• A question referred to the Supreme Court by the President for advice under Art. 143 was whether
Parliament could cede Indian territory to a foreign country by making a law under Art. 3, or was an
amendment of the Constitution under Art. 368 necessary

• The Supreme Court held that Art. 3, broadly stated, “deals with the internal adjustment inter se of the
territories of the constituent States of the Indian Union”.

• The authority of Parliament “to diminish the area of any State” envisages taking out a part of the area of a
State and adding it to another State; the area diminished from one State must continue to be a part of
India and it “does not contemplate cession of national territory in favour of a foreign country”.

• Thus, Indian territory can be ceded to a foreign country only by enacting a formal amendment of the
Constitution under Art. 368 to modify the First Schedule to the Constitution.
Maganbhai Ishwarbhai Patel etc. Vs. Union of India (UOI) and Anr. AIR 1969 SC
783
• Hostilities broke out between India and Pakistan on a boundary dispute in Kutch.
• The matter was then referred by both countries to a tribunal for arbitration.
• The question arose whether the award of the tribunal could be implemented by an
executive act, or was a constitutional amendment necessary?
• The Supreme Court ruled that it could be done by executive action as it involved no
cession of territory, but amounted only to demarcation of the boundary line on the
surface of the earth.
• A constitutional amendment is necessary in a case where de jure and de facto Indian
territory is ceded to a foreign country.
• But settlement of a boundary dispute between India and another country stands on a
different footing.
• The settlement of a boundary dispute cannot be held to be cession of territory. This
matter rests with the Executive
R.C. Poudyal v. Union of India, AIR 1993 SC 1804
• Dealt with the backdrop of Merger of Sikkim with India and on the conferment of full-fledged statehood
on Sikkim within the Indian Union,

• The enactment of Art. 371F for this purpose was challenged raising two crucial questions
(1) Can a seat be reserved in the State Legislature for a representative of a group of religious institutions to be elected by them;
and

(2) can seats be reserved in favour of a particular tribe far in excess of its population in the State?

• Art. 371F was challenged on the ground that it was inconsistent with the basic features of the
Constitution, viz., equality and secularism.

• The Court by a majority upheld these provisions in the light of historical, cultural and political
background of Sikkim.
• The majority ruled that “the provisions in the particular situation and the permissible latitudes, cannot be said to be
unconstitutional” and that: “the impugned provisions have been found in the wisdom of Parliament necessary in the
admission of a strategic border-state into the Union. The departures are not such as to negate fundamental principles of
democracy.

• The power is limited by the fundamentals of the Indian Constitutionalism and those terms and conditions which
the Parliament may deem fit to impose, cannot be inconsistent and irreconcilable with the
foundational principles of the Constitution and cannot violate or subvert the constitutional scheme. This is not
to say that the conditions subject to which a new state or territory is admitted into the Union ought
exactly be the same as those that govern all other States as at the time of the commencement of the
Constitution
 UNION TERRITORIES
• Union Territories : Centrally administered units which do not form part of any
State but have been kept as separate and distinct entities because of several
historical, cultural or political reasons.
• Before 1956, the present-day Union Territories were characterized as Part C
States.
• The States’ Reorganisation Commission in its report submitted in 1955
suggested that the Part C States be converted into centrally administered
territories as these States were neither financially viable nor functionally
efficient
• A UT is to be administered by the President acting, to such extent as he thinks
fit, through an Administrator to be appointed by him with such designation as
he may specify.

• Any instruction or directive issued by the Central Government or the President

is binding on the administration of the UTs

• Art 239 provides for administration and management of UTs

• In several cases, the Supreme Court has declared that the UTs, though centrally
administered, under the provisions of Art. 239, they are not part of the Central
Government but are distinct constitutional entities
N. Masthan Sahib Vs. Chief Commissioner, Pondicherry, AIR 1962 SC 797

• Backdrop: Pondicherry was earlier a French possession administered by the

Government of France. By an agreement between the Governments of India and
France, the administration of Pondicherry was transferred to the Government of
India as from November 1, 1954. The Government of India had been exercising
power in Pondicherry since, under the Foreign Jurisdiction Act, 1947. The Chief
Commissioner of Pondicherry is an officer of the Government of India
appointed under the powers derived as a result of the agreement.
• Four matters came up for hearing together. Two of these are appeals brought
with leave granted by SC and two are petitions under Art. 32 of the Constitution.
• The appeal and the petition by each party challenge an order made by the Chief
Commissioner of Pondicherry under the Motor Vehicles Act, 1939. All the
matters raise substantially the same question concerning the validity of the Chief
Commissioner's orders.
 • To decide the maintainability of the petitions the Court posed 2 questions
to UOI
(a) whether Pondicherry is or is not within the territories of India and
(b) if it is not, the extent of the jurisdiction exercised by the Union
Government over it and the jurisdiction which France still possesses in
regard to it.
• On the basis of these answers received by UOI it was held that
Pondicherry is a foreign territory and not yet acquisition under Art 1
(3)(c)
Scope of Contemporary Debates
• Since the inauguration of the Constitution, Parliament has passed several Acts to reorganize
the States and settle boundary disputes between one State and another

• Proposals for reorganization have been implemented by Parliament in response to public

clamour

• A question being debated at present is whether there ought to be a few more States by
breaking some colossal States existing at present

• Though India can very well afford to have a few more States, what is necessary is that the new
States ought not to be carved out on an ad hoc basis in a piecemeal manner keeping only
political expediency in view

• Multiple controversies surround reorganization of States and UTs

• https://www.thehindu.com/opinion/lead/the-structural-fragility-of-union-
territories/article33927116.ece
• https://www.epw.in/journal/2021/34/special-articles/constitutional-asym
metry-indian-federalism.html
• https://www.thehindu.com/opinion/lead/delhis-administration-as-the-tail-
wagging-the-dog/article34135140.ece