Federalism can be understood as a system of governing a set of people at two different levels with each level having some unique and coinciding powers to govern them. Such a government operates at one federal or central level with multiple regional or provincial levels under it governing sets of people at the state or provincial level.
According to Dicey “A federal state is a political contrivance intended to reconcile national unity and power with the maintenance of state right.”
The federal nature of any constitution depends on multiple aspects and is driven by forces like social, cultural, political, economic, etc, that play an important role in its formation. Either two sets of governments created voluntarily (centripetal forces) or the transition of a unitary state into a federal union (Centrifugal forces) gives rise to federalism.
To truly become a federal nation, a country must adhere to the federal principle. There must be a willingness for federalism among the states, and the federating entities must be equal and able to function freely together. There must be a readiness to submit to the power of the law and a shared national sentiment. Only if these aspects are also fulfilled in addition to the structural division, only then shall a nation be considered a truly federal nation.
Features of Federalism
Certain distinctive aspects of a federal constitution render it loyal to its nature. It shall be the highest legislation in the nation. There is a balance of power between the state and the central government. The constitution shall be supreme, and thus, all branches of government, whether administrative, legislative, or judicial, are subject to its supremacy. The constitution must be a rigid written constitution, that is, a permanent document with rigid amending procedures. The establishment of an independent judiciary is necessary for an unbiased government. The courts shall assist in constitutional interpretation. There shall be dual polity, division of powers and dual citizenship.
Types of Federalism
Federalism can be classified into four types.
- Co-ordinate Federalism: No subordination of governments to one another and absolute equality between two components, i.e. the centre and the state.
- Cooperative Federalism: Both the units, i.e. the state and the centre work together in cooperation.
- Organic or integrated federalism: The central government has an upper hand over the constituting units.
- Competitive federalism: A spirit of competition between the state and central government divisions.
Indian Constitution And Federalism
According to Article 1 of the Constitution of India, “India, that is Bharat, shall be a union of states.” Even though the constitution does not mention India as a federation, it mentions the country as being a union of states. India, in its own distinctive sense, is a federal system with a tilt towards a unitary form of governance. It is frequently alluded to as a quasi-federal system since it combines federal and unitary characteristics. The Government of India Act of 1919, which divided authority between the central government and province legislatures, is regarded to have introduced elements of federalism into contemporary India.
Federal Features of The Indian Constitution
There are two tiers of government, the central and the state, with a division of power between them. The Seventh Schedule of the Constitution provides three lists, the union list, the state list, and the concurrent list, which detail the subjects over which each level has authority. India’s constitution is one of the biggest written constitutions in the world. No law can be written or passed that violates the Indian Constitution. The Indian constitution is the supreme legislation of the nation. It is above all citizens and organisations. The Supreme Court of India is considered the country’s highest court. The Supreme Court’s decisions are binding on all lower courts, and it has the authority to interpret the Constitution’s provisions. India has a bicameral legislature. It has two houses, Lok Sabha and Rajya Sabha.
Such features render the constitution its federal nature. However, for the smooth functioning of the nation, to resolve disputes among the states and to preserve the feeling of unity, India also has features of a Unitary form of government.
Non-Federal Features of The Indian Constitution
There are features of the constitution that are non-federal in nature. There is an unequal division of power with powers more in favour of the centre than of the state. The states do not have equal representation in the Rajya Sabha as they are based on the population of the states and for an ideal federalist situation, each state should have equal representation in the house. The executive is a part of the legislature at both the state and the central level. There is unequal power distribution between Lok Sabha and Rajya Sabha. There is no concept of dual citizenship as there is no citizenship for the state. The parliament has the power to alter the territory of a state by increasing or reducing the area of the state. It also possesses the power to change the name of a state. It is not a strictly rigid constitution as there is a scope for amendment of certain provisions.
Such features of the constitution tilt the federal form towards a unitary one.
Numerous forces have repeatedly challenged Indian Federalism, including regionalism, a lack of fiscal federalism in which the majority of the tax pool belongs to the central government, a union list with more items than a state list, language and cultural conflicts primarily involving the Southern States, uneven economic development of the states, issues of asymmetrical federalism, statehood demands and secessionist movements, etc.
These concerns can be handled through cooperative federalism, in which the federal and state governments collaborate on issues and initiatives for resolving them. There are various ways by which the concept of cooperative federalism can be achieved:
- Article 263establishes the Inter-State Council for settling conflicts between the states and the central government.
- Article 262 (1)gives Parliament the authority to resolve any dispute involving the use, distribution, or management of an interstate river or river valley.
- Institutions like NITI Ayog are working on the same objective.
- Articles 280 and 281stipulate that a Finance Commission will determine the financial distribution between states and centres.
- Article 275stipulates Grants and Assistance for poor states.
- The Seventh Scheduleof the Constitution clearly delineates both the Center’s and the State’s operational territory.
- GST law
By way of Goods and Services Tax, the legislature has brought all the indirect taxes under a single taxation scheme. Nonetheless, taxes are a sovereign role comprised of two major components: collection and imposition. According to the GST, the union collects the tax, but it will be allocated to the states based on the council’s recommendations. The federal aspect of the Indian constitution stipulates that the central and state governments must share power.
Article 246 of the Indian Constitution grants both the federal and state governments the authority to enact legislation on topics included in the union list, state list, and concurrent list. However, the implementation of the Goods and Services Tax (GST) has deprived states of the ability to impose taxes according to their own needs and as a result, those with larger output would lose tax revenue.
The central government has opted to exclude alcohol, gasoline, and diesel from the GST, but state governments have kept the authority to tax the sale of petroleum products and alcoholic beverages. State and central governments impose taxes on alcoholic beverages, petrol, and diesel. However, alcohol, petrol, and diesel taxes vary from state to state; there are no fixed taxes on these products. This law promotes Cooperative Federalism.
- The Supreme Court stated in Pradeep Jain v. Union of Indiathat India is not a federal state in the classic sense. It is not a contract between sovereign states that have formed a federation by abandoning unquestionably federal characteristics.
- In Ganga Ram Moolchandani v. State of Rajasthan, the Supreme Court reaffirmed that the Indian Constitution is fundamentally federal in nature and is characterised by the traditional features of a federal system, namely the supremacy of the Constitution, the division of power between the Union and the States, and the existence of an independent judiciary. In ITC LTD v. Agricultural Produce Market Committee, the Supreme Court reached a similar conclusion.
- In State of Haryana v. State of Punjab, India was described as semi-federal, but in Shamsher Singh v. State of Punjab, the constitution was described as unitary rather than federal.
- In the 1978 case Maneka Gandhi v. Union of India, the Indian Supreme Court affirmed the doctrine’s preeminence above legislative law. According to the ruling, a parliamentary act that violates the fundamental framework of the constitution cannot be called a law. This historic guarantee of Fundamental Rights was recognised as a one-of-a-kind instance of judicial independence in the preservation of Fundamental Rights’ purity. The Fundamental Rights may only be modified by a constitutional amendment; hence, their inclusion serves as a check not just on the executive branch but also on Parliament and state legislatures. In order to maintain national security and public order, the declaration of a state of emergency may result in a temporary suspension of the rights granted by Article 19 (including the freedoms of expression, assembly, movement, etc.).
- In West Bengal v. Union of India, the Supreme Court of India ruled that the Indian constitution does not adhere to any traditional federalist model.
- However, as noted in Chettiyar v. Ganudan, the sheer presence of unitary characteristics in the constitution may render it quasi-federal in law, but this does not preclude it from being predominately federal in nature.
- In Automobile Transport v. State of Rajasthanit was held that the essential feature of a federal or quasi-federal structure is present in the Indian Constitution.
- In Keshavananda Bharati v. State of Keralait was held that federalism was one of the basic features of the constitution.
- In State of Rajasthan v. Union of India, it was determined that the Indian constitution was federal, but the necessity for the nation’s prosperity and development has tempered it.
- It was determined inUnion of India v. Shankalachand that the constitution was either federal or quasi-federal.
- The Supreme Court of India ruled in SR Bommai v. Union of Indiathat federalism is the fundamental principle of the Indian Constitution.
The Supreme Court is an independent body that can declare Acts of the Union and States to be ultra-vires if any of them encroaches on the other’s stated authorities. Thus, while our Constitution is federal in normal times, it becomes unitary in times of emergency. Consequently, we can term the Indian Constitution quasi-federal.
A commission was established in 2000 to examine the operation of the constitution. Among the several suggestions made by the commission, some are
- The necessity for individual and collective dialogue with the states.
- The states should be granted additional taxing authority.
- The formation of an interstate commerce and trade commission.
- Prevent the misuse of the Governor’s office.
- Prevent the misapplication of article 356.
With the onset of the modernization and privatisation period, India’s federalism must be revised and given a fresh perspective.