Constitutions are either Unitary or Federal. In the Unitary Constitution, the powers of the Government are centralised in one Government, the Central Government. In such States, there are either no Provincial Governments[3]. However, if there is a provincial government (i.e., state government), it is subordinate to the centre, e.g., the Constitution of Britain, Sri Lanka, Singapore, etc. In a Federal Constitution, on the other hand, there is a division of powers between the Federal (i.e. Union) and the State Governments, and both are independent in their spheres, e.g., the Constitution of the U.S.A, Canada, Austria, Malaysia, Germany, etc.

Now, the question is whether the Indian Constitution is Federal or Unitary—or partly Unitary and partly Federal (i.e. Quasi Federal). To arrive at an appropriate answer to this question, we will study the characteristics of Federalism and discuss whether our Constitution possesses those characteristics or not.

II. FEDERAL PRINCIPLES DEFINED[4]:-

According to Prof. K. C. Wheare, Federal Principles means ‘the method of dividing powers, so that the General (i.e. Union) and regional (i.e. State) Governments are each within a sphere coordinate and independent. The federal and regional governments are each within a sphere coordinated and independent and not subordinate[5] to one another”. The American Constitution is an example of the Federal Constitution.

According to Prof. Where, if the Federal principles are predominant, the Constitution is Federal; substantial compliance with all characteristics is unnecessary.

III. ESSENTIAL CHARACTERISTICS OF A FEDERAL. CONSTITUTION[6]:-

A Federal Constitution usually has the following essential characteristics. These can also be called the merits of Federalism.

1. Distribution of powers[7]:-

‘Federalism’ means the “distribution of powers of the State among different coordinate bodies (each originating in and controlled by the Constitution). Such distribution of power is important because matters of national importance are entrusted to the Union, e.g., defence, railway, post office, etc. On the other hand, matters of local concern remain with the state, e.g., agriculture, police, local government, public health, sanitation, etc.

2. Supremacy of Constitution[8]:-

A Federal State derives its existence from the Constitution. Hence, every executive, legislative or judicial power, whether it belongs to the Central Government or the State Government, is subordinate to and is controlled by the Constitution. Supremacy of the Constitution is essential if the Government is to be Federal.

3. Written Constitution:-

The Constitution should be written, e.g., the American Constitution, the Indian Constitution, etc., to maintain its supremacy and achieve the goals mentioned therein. A written Constitution is essential for the Federal Government to work well. It avoids misunderstandings and disagreements about its provisions.

4. Rigidity:-

A natural result of a written Constitution is its rigidity. A Constitution that is the supreme law of the land must also be rigid. A rigid constitution requires a very complicated and difficult procedure for amendment. The Constitution of the country is considered to be a permanent document. It is the supreme law of the land[9]. This supremacy of the Constitution can only be maintained if the method of amendment is rigid.

5. Authority of court[10]:-

Legal supremacy is essential for the existence of a Federal system. Any action by the Centre or State may abridge the provisions of the Constitution or infringe on the legal rights of individuals. In such situations, the Supreme Court is the final authority to interpret the Constitution to settle such conflicts.

6. Dual Polity[11]:-

The Federal Constitution establishes a dual polity. The Union at the Centre and the State at the provinces are empowered with sovereign powers in their respective spheres.

The Indian Constitution possesses all the essential characteristics of a Federal Constitution mentioned above. Still, some scholars hesitate to call the Indian Constitution truly Federal. It is because, according to them, in certain circumstances, the Indian Constitution empowers the Centre to interfere in State matters and thus places the State in a subordinate position, violating Federal principles. They, therefore, call the Indian Constitution ‘quasi Federal[12]’, ‘Unitary with Federal features[13]’ or ‘Federal with Unitary features[14]’. According to Jennings, “it is a federation with strong centralising tendencies”.

IV. UNITARY FEATURES IN INDIAN CONSTITUTION[15]:-

According to the above Scholars, the following are the unitary characteristics enshrined in the Indian Constitution, or some characteristics deviate from true Federalism toward strong centralisation.

1. Appointment of Governors:-

The Governors of the State are appointed and removed by the President (Arts. 155 &156) and are answerable to him. The Governor is the Constitutional head of the State, who shall normally act on the advice of his ministers. The Governor is required to send certain State laws for the assent of the President. The President has the power to veto[16] (withhold) such State law (Art. 200, 288 (2)). Re Kerala Educational Bill1 is the only example of it.

2. Parliament’s power to form new States and alter boundaries of existing States:-

The Parliament of India may form new States. It may increase or diminish the area of any State, and it may alter the boundaries or names of any State (Art. 3). The State’s very existence thus depends upon the sweet will of the Union Government.

In Mullaperusar E. P.F v. Union Of India[AIR 2006 SC 1428.]

The Supreme Court has held that creating new states by altering territories and boundaries of existing states is within the exclusive domain of Parliament. The Constitution confers supreme and exclusive power on Parliament under Art. 3 and 4 to create new states by recognition. The parliament may enact provisions for dividing land, water, and other resources, distributing the assets and liabilities of the predecessor state amongst the new states, and making provisions for contracts and other legal rights and obligations.

3. Emergency Provisions[17]:-

The Constitution envisages three types of emergencies: (1) emergency caused by war, external aggression or armed rebellion.[18] , i.e. National Emergency (Art. 352). (2) emergency caused by failure of Constitutional machinery in the States, i.e. President’s rule[19] (Art. 356). (3) financial emergency[20] (Art. 360). During an emergency, the normal distribution of power between the Centre and the State (which is the essential element of the Federal Constitution) is completely suspended, and the Centre has the right to make laws on any subject even mentioned in the State list. Therefore, the Government system becomes more Unitary than federal during an emergency.

Emergency provisions in the Constitution are mostly misused. The emergency on the failure of constitutional machinery is misused as a weapon by the Central Government to remove the popular Governments.[21] in the State from the other parties.

4. Single Citizenship:-

The Constitution of the U.S.A. allows dual citizenship. But our constitution doesn’t envisage such dual citizenship; it only has a single citizenship of India.

5. Single Constitution:-

In India, there is only one Constitution for the Union and all States, unlike in America. In America, apart from its Federal Constitution, each State is free to make its own Constitution.

Election, Accounts and Audit[22]:-

The U.S.A. has a separate and independent election, accounts, and audit machinery. However, in India, this machinery is centralised.

Residuary Powers[23]:-

Indian Constitution, under Art. 246, in Schedule VII, provides for three lists. These lists comprise several matters on which central and state legislatures can make laws. These lists are,

List-I- Union list[24] (Contains 98[25] subjects)

List-II-State list[26] (contains 59 subjects[27])

List-III- Concurrent list[28] (Contains 52[29] subjects)

This distribution to make laws on enumerated subjects seems more Union-oriented[30]Art. 248 also gives the central legislature the upper hand in making laws on subjects not enumerated in either of these lists.

Conclusion:-

Dr Ambedkar, the chairman of the Drafting Committee, observed that “notwithstanding many provisions, contained in Indian Constitution, whereby, Centre has given powers to override the provinces (States), nonetheless, is a Federal Constitution”. But it may be concluded that; the Indian Constitution is neither purely Federal nor purely unitary but is a combination of both. Moreover, it enshrines the principle that the national interest should be paramount despite Federalism. Thus, the Indian Constitution is mainly Federal, with unique safeguards for enforcing national unity and growth. Therefore, the Indian Constitution is described as ‘Quasi-federal’ or ‘Federalism with a strong Centre’.

Merits and Demerits of Federalism:-

A) Merits of Federalism:-

In addition to the characteristics or merits (abovementioned) of federalism, it has some other advantages, which stress the need for a Federal Constitution in the country, viz.

1. Unity in diversity[31]:-

In countries like India, where there is great diversity in culture, language, etc., different States protect the aspirations of local people and their culture, language, etc. Therefore, in India, Federalism is more useful than a unitary form of Government.

2. Local problems are solved at the local level:-

The State Government is formed to solve local problems at the local level. Therefore, the State list contains 61 subjects, such as maintenance of public order, police, public health and sanitation, agriculture, etc. They all are of local importance.

3. Advantages of Central as well as Federal governance:-

In Federalism, people are benefited both by the Centre and Federal governments, e.g. trade, commerce, and intercourse throughout India are made free. In contrast, military, post, telephone, and railway are Centralised for all States.

4. Convenient:-

Federalism is a more convenient form of Government since local problems are solved at the local level.

5. Local aspirations of the people are best preserved[32]:-

6. Representation of all the sections of the society[33]:-

In federalism, all the sections of society get representation, including minorities.[34].

B] Demerits of Federalism:-

Federalism has some demerits that are comparatively less than merits, viz.

Co-ordination becomes difficult[35]:-

The difficulty of cooperation between the Centre and the State is the main problem in the smooth functioning of the Government. The problem comes when the Governments of different parties exist in the Centre and the States. Funds from the Centre to the States are affected in such circumstances. Therefore, the concept of co-operative Federalism is affected.

Expensive:-

Maintaining governments at both the central and state levels is very expensive.

3. Regional aspirations override national aspirations:-

In the Federal States, there is always a fear that State aspirations may override national aspirations. Therefore, demand for independent states or countries increases, e.g., in Jammu and Kashmir, Punjab (some years ago), etc.

4. Delay in decision-making:-

A natural corollary of a federal system is a delay in decision-making. Since there are two governments, implementing a central policy takes a lot of time.

5. No uniformity in laws and decisions:-

In Federalism, each State (within its sphere) makes laws. Such laws on a particular matter differ from State to State. Therefore, there is no uniformity in such laws.

VI. Sarkaria Commission:-

A) Appointment of Sarkaria commission[36]:-

So far, as a party government (i.e., National Congress) was in the majority in the Centre and States, there was no question and demand to take the review of the Indian federal system and allot more funds to state governments. However, when local party Governments started to come into power in different States, like Kerala, Tamilnadu, West Bengal, etc., the demand for a review of existing Centre-State relations (i.e. Federal systems) and allotment of more funds to the State Governments started growing. Because of this growing demand, the Government of India (congress headed by Mrs Indira Gandhi) announced on 24 March 1983 the appointment of a Commission headed by R. S. Sarkaria (Chairman), a retired judge of the Supreme Court, with three other members.

B) Object of appointment:-

To examine and review the workings of the existing arrangements between the Union and States concerning powers, functions, and responsibilities in all spheres and recommend such changes or other measures as may be appropriate.

C) Limitations on Commission:-

While working, the Commission was to keep itself within Constitutional limits and give due regard to maintaining India’s unity and integrity.

D) Recommendations of commission:-

The Commission submitted its report to the Government in 1988. It firmly turned down the demand for curtailment of the powers of the Centre and entrusting them to States, Saying that a strong Centre is necessary for the preservation of unity and integrity of the country. It further asserted that there was no need for drastic changes in the existing provisions of the Constitution. In the financial sphere, the Commission did not find any justification for major changes in the basic Scheme of the Constitution, which divides the subjects of taxation between the Centre and States. Though the committee has not asserted drastic changes in the existing provisions of the Constitution, it made some of the following recommendations-

1) Sharing of Corporate taxes:-

The committee recommended sharing corporate tax and levy of consignment tax on advertisement and broadcasting between the Centre and the States (originally) used by the Centre.

2) No transfer of subjects from Union to State list:-

The Commission did not favour the transfer of certain subjects from the Union list to the State or concurrent list[37] or curtailment of the powers of the Centre to deploy armed forces in the State. However, it favoured deploying such forces only after the consultation with that concerned State.

3) Domination of Union is essential[38]:-

The Commission believed that the supremacy of parliament envisaged in the Constitution is essential and needs no change.

4) Governor with chief minister’s consultation:-

The Commission recommended consultation with the Chief Minister of the State before the appointment of the Governor by the President. However, it did not favour the abolition of the office of the Governor.

5) Uphold Art. 356 (State Emergency):-

The Commission did not favour the deletion of Art. 356, which permits the President to impose Presidential rule in the State. However, it suggested that the Centre could use this power only on rare occasions. It further suggested that the possibility of forming an alternative government should be looked into before imposing presidential rule in the state. An alternative government is to be established if possible.

6) Centre-State consultations before passing laws:-

The Commission suggested consultations with the State by the Centre before passing any law on the subject mentioned in the concurrent list.

7) Establishment of Inter-State Council[39]:-

The Commission recommended establishing Inter-State councils under Art.263 to solve disputes among the States.

E) Acceptance/ non-acceptance of the report:-

The Congress Government headed by Mrs Indira Gandhi failed during this period. The succeeding National Front Government accepted some of the Commission’s recommendations. When the Congress Government again came into power in 1991, it accepted some more recommendations and implemented them. Thus, the recommendations of the Sarkaria Commission have been accepted only in limited matters.

*****

[1] भारतीय राज्यघटणेचे स्वरूप

[2] संघराज्य

[3] राज्य/प्रांतीय

[4] संघराज्यत्मक राज्यघटनेची तत्वे

[5] कनिश्ठ

[6] संघराज्यत्मक राज्यघटनेचे आवश्यक घटक

[7] सत्तेची विभागणी

[8] राज्यघटणेचे श्रेष्ठत्व

[9] देशाचा सर्वश्रेष्ठ /मुख्य कायदा

[10] न्यायालयीन अधिकार

[11] दुहेरी शासन व्यवस्था

[12] संघराज्य

[13] संघराज्याची वैशिष्ट्य असणारे केंद्रशासन

[14] केंद्रशासनची वैशिष्ट्य असणारे संघराज्य

[15] घटनेतील केद्रीय शासन व्यवस्थेची वैशिष्ट्य

[16] नकार अधिकार

1 AIR 1958 SC 956.

[17] आणीबाणी संबंधी तरतूद

[18] युद्ध, परकीय आक्रमण सशस्त्र उठाव

[19] राष्ट्रपती राजवट

[20] आर्थिक आणीबाणी

[21] लोकनियुक्त

[22] निवडणूक, हिशेाब आणि हिशेाब तपासणी

[23] इतर अधिकार / उर्वरीत अधिकार

[24] केद्र सूची

[25] Originally there were 97 subjects.

[26] राज्य सूची

[27] Originally there were 66 subjects but presently there are 61 subjects.

[28] समावर्ती सूची

[29] Originally there were 47 subjects.

[30] केद्रभिमूख

[31] विविधतेत एकता

[32] स्थानीक अपेक्षांचे संवर्धन

[33] समाजातील सर्वघटकांचे प्रतिनिध्ीत्व

[34] अल्पसंख्याक

[35] समन्वय साधणे कठीण

[36] सरकारीया आयोग नियुकती

[37] Under Art246, in schedule VII there are three lists.

List-I- Union List contains 97 subjects or items, on which Union Government exclusively make laws.

List-II- State List contains 66 subjects on which State Government exclusively may makes laws List –III Concurrent List-contains 47 subjects, on which Union as well as State legislature can make laws.

[38] केद्रसरकारचा प्रभाव आवष्यक

[39] आंतर राज्य समितीची स्थपना वाद