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Federalism: An Unique Spirit of the Constitution and Its Criticism

Intoduction

It is evident from the history of the Land of Diversity that pre-Independent India was ruled by the absolute and centralised bureaucracy, reign of monarchy and feudal dominance. There was political turmoil among the provinces of British India, and they were longing for the transfer of power to Indian hands. Notwithstanding the colossal diversity, the harmonious chauvinistic spirit in India struggled against the British Rulers and desired to make the land Sovereign. Therefore, to fulfil the national goal, they demanded the reorganisation of states and providing them with their autonomy. To avoid political upheavals and preserve the Suzerainty of the British Crown, British India adopted the concept of Federalism as a baseline in the Simon Commission Report 1930. But this report failed to earn much importance. Later in 1933, the British Government issued a White Paper for the formation of the New Indian Constitution which intended to incorporate responsible government in the provinces. With the issuance of the White Paper in 1933, the Joint Select Committee of the Houses of Parliament recognised the federal design for both British India and the princely States as being written out in the new Constitution, which served as the foundation for the Government of India Act in 1935(hereinafter G.O.I. Act).

The federal character of the G.O.I. act can be realised by the conflicting interests between the strong Centre and State autonomy over the subjects enshrined in the Act of 1935. The power to legislate within the subjects is grouped into three lists- Federal List, Provincial List and Concurrent list, and allocation of those subjects into the Lists was upon the discretion of the Governor General considering the national interest. However, after World War II and the partition of India, the Constituent Assembly was formed in 1947 to design the New Constitution of India. The leaders and the framers of Independent India were inspired by other countries like Canada and Australia, and they positioned themselves as a status of dominant in the Parliamentary Form of Government. The architects of the Indian Constitution relied on the Principle of Federalism and sagaciously adapted G.O.I. Act 1935 was the ideal for establishing The Constitution of India, 1950, as it facilitated India to endure the revolutionary furlough and thrive amid social transformations.

Origin of Federalism

After the American Revolutionary War, the United Colonies evolved into the United States and was the first country with Federal Government. Thus, according to many authors, the history of the federal system commenced in America. A great political philosopher Montesquieu, in one of his best works named The Spirit of Laws, devoted some parts to introducing the term federalism in the contemporary political era. In his research on Federalism, he found the etymological meaning of federalism which is derived from the classical Latin term foedus, which means to a contract, compact, or treaty. The word foedus originated from the ancient Latin expression fides, which means “trust.” Foedus is a contract of cooperation between “political” organizations pertaining to peaceful commitments. Prof. Where, in his analysis of the Constitution, proposed the test of Federalism where the connotation of Federal Government should be as per the federal scheme in the United States. Hence, the Indian Constitution under Article 1 enunciate India, that is Bharat shall be the Union of States.

Comparative Study

Indian Federal Constitution borrowed and embraced the trait of Federalism from the U.S.A., Canada and Australia. The preamble and constitutional amendment provisions of the Indian constitution are patterned after the American model. From Canada, India replicated the Residuary Power or Dominion Status to the Centre and not to the Units. Australia brought us the concept of concurrent powers, and India adopted our fundamental rights, directive principles, and the Electoral College system for electing the president from Ireland. Notwithstanding these borrowings, our Indian Constitution is also composed of diverse linguistic provinces and shaped by other political factors. The Constitution of India being an organic document provided four broad powers- Legislative, Executive, Judiciary and Financial and these powers were severed by the Doctrine of Separation federalism is that mechanism which divides and shares those powers between two levels of Government- one at the Centre and the other at Regional or State. Thus, the excellent attribute of the federal constitution is the allocation of powers and functions among the Centre and different States for proper governance of the country.

The Spirit of Federalism and Its Criticism

Federalism is not precisely defined in the Indian Constitution. The spirit of federalism is cultivated and nourished in this land of diversity by eclectic judgements which upheld the federal essence of the Indian Constitution. The watershed judgement of Keshavanada Bharati v. State of Kerala (1973) griped the federal characters as the fundamental tenet of the Indian Constitution and unamendable.   

In SR. Bommai and others, v. UOI (1994)delineated that the corporality of dual governments and the allocation of powers between them constitute Federalism in its purest form. The doctrine of federalism binds the segregated states into a Union without discarding their autonomy, so that the States being a member of the Union, can also partake in discussion and policy-making.

Our Constitution is Supreme, and the authorities of the independent judiciary safeguard this Supremacy in interpreting the partition of legislative and executive powers between the Union and States so that the interpretation does not offend the basic structure. Kuldip Nayer and others v. UOI and Others (2006)it is upraised that the spirit of federalism is no longer a res integra as the divine Constitution of India has distributed substantial as well as significant powers to the Centre and the Units. The controversies over the Constitution’s federalism Character commence from these aforementioned judgements. The centralized character is ingrained in the Indian Constitution, i.e., the Constitution is inclined towards the Centre.  Article 246 confers exclusive power to the Centre and the States to enact laws on the entries provided in the 7th Schedule of the Constitution of India. Parliament has given dominion status to preserve the national integrity of the Nation. Therefore, the main conflicts arise in allocating the power between the Centre and the States. In in State of West Bengal v. Union of India, Supreme Court concerning the Coal Bearing Areas (Acquisition and Development) Act 1957, ruled that the Union has the legislative authority concerning the subjects or entries incorporated in List II. This upheld the unitary feature of the Constitution, depriving the sovereignty of the State and reducing the spirit of federalism. Another occasion in Naga People’s Movement of Human Rights v. Union of India, where the Central Government moves of deploying the Central Police Force without the consultation the consent of the concerned State sought to restrict and dilute and even undermine the State Government’s authority conferred by the Indian Constitution. In the case State of Karnataka v. Union of India the Apex Court concluded that the Constitution not only has federal attributes but also has the hegemony of a strong Centre, which formulated a Quasi-Federalism.

Conclusion 

One of the unique traits is the combination of the federal and unitary systems present in the Indian Constitution. Indian Territory is marked by the spirit of federalism with the preponderance of the Centre in distinct aspects. Cooperative federalism between the Centre and the States is promoted in State (NCT of Delhi) v. Union of India and Another, where it articulated the notion of collaborative federalism, which aims to form a holistic structure between both the Governments and pragmatic federalism which endeavours to a dynamic approach that will evolve in changing needs and situations. These varied forms of federalism are nevertheless subject to the unitary framework, or the residual power of the Union, which secures the interests of the nation and maintains solidarity. In the latest case of the Union of India and Anr. v. M/s Mohit Minerals Pvt. Ltd., the Apex court added the idea of “uncooperative federalism” to the literature. This framework allows the States to challenge the Union Government, which will lead to more discussion before reaching a consensus. The GST Council is a prime example of cooperative and uncooperative federalism. Another aspect of federalism is competitive federalism, which fosters fair competition between nations by publishing clear rankings across several sectors by Competitiveness Index. NITI Aayog is an appropriate example which aims to raise competition among States and Union Territories to ameliorate their performance in Education Quality Index, Health Index, Sustainable development Goal Index, etc. It will be pertinent to conclude by citing the quotation of erstwhile President Rajendra Prasad- “Whether you call it a Federal Constitution or a Unitary Constitution or by any other name. It makes no difference so long as the Constitution serves our purpose”. 

Author(s) Name: Aishwarya Priya Raha (St. Xavier’s University, Kolkata)