INTRODUCTION
The Indian Constitution, which came into being on 26th November 1949, holds a special place in comparative constitutional law. In most democracies, the government either adopts the strictly unitary or strictly federal system, but India has taken a unique step of adopting what Dr B. R. Ambedkar, Chairman of the Drafting Committee, called “federal in structure, unitary in spirit.[1]. The question that remains nearly seventy years later is whether India is really a federation or the pull of the Centre makes it more of a rhetoric than reality. This blog observes the development of the constitutional architecture of India in the light of classical federalism, explores important constitutional provisions for centralisation of powers, and investigates how the Supreme Court has contributed to the evolution and, at times, revival of classical federalism. It arrives at the conclusion that India is a “quasi-federal” state, one formalised in the Constitution but with a strong centralist flavour.
THE CLASSICAL FEDERAL BENCHMARK
Broadly speaking, on the surface, India meets the basic conditions of a federal state in the classic Dicean sense: (i) a written supreme constitution; (ii) a strict amendment process; (iii) an independent judiciary to adjudicate intergovernmental disputes, and (iv) a real division of legislative and executive powers between the centre and states[2]. The Constitution is written, supreme (Article 13), can only be amended by special majorities (Article 368) and, for some provisions, by at least half of the State Legislatures, and the Supreme Court has a wide judicial review. The three lists – Union List (List I, 98 subjects), State List (List II, 59 subjects), and Concurrent List (List III, 52 subjects)[3] – look like a form of a genuine federal compact, as in Canada and Australia.
THE UNITARY UNDERCURRENT: KEY CONSTITUTIONAL PROVISIONS
But when studied more closely, these tendencies are found to be systematic and centralising, and are not seen in classical federalism elsewhere. The Constitution’s provision on ‘President’s Rule’ or ‘Emergency’ (Article 356)[4] has been used more than 100 times between 1950 and 1994; some of the applications have been so transparently political that they have been roundly criticized by teachers, academics, and judges. Second, Parliament may make laws on subjects in the State List if the Rajya Sabha determines that the matter is of national importance by a two-thirds majority vote, which would mean that the upper house (Union politics) could undermine State legislative autonomy. Likewise, Article 250 confers on Parliament the power to make any law on State list matters during a National Emergency. Third, Governors are appointed and dismissed by the President only, whose constitutional head of each State is a Central appointee with large discretionary powers, including the power to reserve Bills for the President’s assent (Article 200). Fourth, fiscal federalism is still structurally skewed. The Finance Commission (Article 280) suggests the devolution of taxes, but the more prosperous revenue heads are income tax, customs, and central excise. Central grants-in-aid are vital to the finances of states, and have led to commentators describing a ‘fiscal dependency’ or ‘grant-in-aid culture’.[5]
JUDICIAL SCULPTING OF FEDERALISM: FROM KESAVANANDA TO S R BOMMAI
The Supreme Court has been the main forum for the contestation of federal values in India, and its decisions show an incremental trend in favour of federal values. In State of West Bengal v Union of India (1963)[6], the Court declared that the Indian Constitution was not a Federal Constitution and Parliament has the authority to acquire State property. The choice was in favor of the early Court’s desire for a strong Centre. It was in Kesavananda Bharati v State of Kerala (1973)[7] that it appeared before the court in a slim majority of 7:6, and the Basic Structure Doctrine was formulated. The Court declared that Parliament had the power to change anything it found in the Constitution, but did not have the power to remove its ‘basic structure’. Notably, several judges saw federalism as a fundamental element of the “basic structure” that thereby prevented its annihilation by the legislative process. The most impactful federal ruling, however, was S R Bommai v Union of India (1994)[8], which drastically curtailed the misuse of Article 356. The Court ruled that the Presidential proclamation under Article 356 is a justiciable document and the President can’t do any action based on extraneous and irrelevant matters. The floor test shall be held, and cannot be assumed by the Governor, ordinarily in the State Legislature. Bommai has successfully moved Article 356 from being a political tool to a tool of last resort, thus strengthening India’s federal credentials. In more recent judgments, the Supreme Court has again reiterated that elected governments must possess executive powers that are in proportion with their democratic mandate, as is evident in the judgments in Government of NCT of Delhi v Union of India (2018 and 2023)[9], which have significant implications for federal dignity, including at the sub-State level.
COOPERATIVE AND COMPETITIVE FEDERALISM IN PRACTICE
Modern Indian federalism has slowly moved away from constitutional command to cooperative and competitive methods. The GST Council, introduced by the Constitution (One Hundred and First Amendment) Act 2016, is a joint deliberative body of Union and State Finance Ministers, which requires consensus to take major decisions.[10]It exemplifies cooperative federalism and has been commended as a model of fiscal cooperation, although it has been argued that the Union’s voting weight (one-third) and its capacity for breaking deadlocks shifts the balance Centreward. Competitive federalism has become a major feature, too: States now actively seek out investment and talented employees and compare rankings of their business climates. The State indices, by NITI Aayog, on health, education, water, and Sustainable Development Goals, have created a ‘race to the top’ spirit, leading to the innovation of policies at the sub-national level.
THE QUASI-FEDERAL VERDICT
The weight of the text and the jurisprudence give rise to the idea that India is more of a “quasi-federal” polity. This phrase was coined by K C Wheare for his comparative study of the federal government[11]and it is a constitutional structure that is federal in its distribution of powers, but has some powerful federal instruments to be used for emergencies or political convenience. This is not a pathology; it is, indeed, a conscious design decision, motivated by India’s past – its Partition pain, the problems of national integration in a linguistic and cultural landscape, and the need for one nation’s economic development. The framers of the Constitution were aware of the need to create a ‘tilted’ federation in a period of new and exceptional centrifugal pressures in a young, plural democracy. But this quasi-federal system has its baggage of tensions. In an era of regional politics, when the Centre and States are run by different political parties, the unitary powers under Article 356, the Governor’s power, and financial dependency can be used and misused. In this context, what is of paramount importance is the judiciary’s ability and inclination to hold the executive accountable for these excesses, as seen in Bommai and its offspring.
CONCLUSION
India is neither a federation, in the Western sense, nor a unitary state. It is more complicated, more sophisticated – a quasi-federal union that is strong enough to keep a subcontinent together, but flexible enough to permit regional self-expression. The vibrancy and resilience of the federal arrangement in the Constitution are testimony to its wisdom, if not its ambiguity, as it has managed this tension over more than a quarter of a century, despite the tumultuous political, linguistic, economic, and judicial changes experienced over the years. It might thus be better to ask, ‘Is India a good federal state?’ A more pertinent question is how the unique character of quasi-federalism in India can be enhanced: how to institutionalise fiscal autonomy, establish a constitutional Finance Commission, zone the Governorship, and create permanent inter-governmental deliberative fora along the lines of the GST Council. In that pursuit, the Constitution is the issue, and it’s the answer.
Author(s) Name: Alok Raj (Student at Symbiosis Law School , Hyderabad)
References:
[1] Constituent Assembly Debates (Vol VII, 4 November 1948) 38 (Dr B R Ambedkar).
[2] A V Dicey, Introduction to the Study of the Law of the Constitution (8th edn, Macmillan 1915) 144–147.
[3] Constitution of India 1950, Seventh Schedule.
[4] Constitution of India 1950, art 356.
[5] M Govinda Rao and Nirvikar Singh, Political Economy of Federalism in India (OUP 2005) 112–118.
[6] State of West Bengal v Union of India AIR 1963 SC 1241.
[7] Kesavananda Bharati v State of Kerala (1973) 4 SCC 225.
[8] S R Bommai v Union of India (1994) 3 SCC 1.
[9] Government of NCT of Delhi v Union of India (2018) 8 SCC 501.
[10] Constitution (One Hundred and First Amendment) Act 2016, inserting art 279A.
[11] K C Wheare, Federal Government (4th edn, OUP 1963) 28.