What is
Federation?
It is a group of
regions or states united with a Central Government or a Federal Government. A
federation has a well –established dual polity or dual form of government i.e
field of Government is divided between the Federal and the State Governments
whichare not subordinate to one another,
but co-ordinate and are independent within their allotted spheres. Therefore,
the existence of co-ordinate authorities independent of each other is the gist
of the federal principle.
Characteristics
of Federation:
(i) Dual Government.
(ii) Distribution of
powers between two governments.
(iii) Authority of
Courts
(iv) Supremacy of the
constitution.
Indian
situation:
(i) Dual Government:
Indian constitution establishes dual polity with the union
at the centreand the States at its periphery each enjoying powers clearly
demarcated by the States. Though this is one of the essential features of the
federation, the concept of adoption of dual government is to be seen in the
light of functionality/reality. In practice, the Parliament can change or alter
the areas and boundaries of any State.
All the constituent states of the Union are not equal. The Union
territories do not enjoy the same status as the states. The Indian Constitution
does not provide any Safeguards for the protection of the rights of States.
Except Jammu and Kashmir, no state has its own constitution. Dual government
set up went well in the sates which were ruled by the one and the same party at
the centre. It is clear from the imposition of President Rule for first time in the state of Punjab (due to
resignation of Gopichand Bhargava, who had been Sardar Patel's confident and
hence not liked by Nehru) and followed in
many more states that Art.356 was misused by the government at the
centre for mere political vendetta. The Janata Party had always castigated the
Congress Party and the Centre on the misuse of Article 356 of the Constitution
(imposition of President’s Rule). But gaining power at the Centre for the first
time they manipulated that article to suit their political purpose.
In May
1977 a circular was issued by the Home Minister Charan Singh, a constitutional
functionary in Morarji Desai’s Council of Ministers. Under its terms, chief
ministers of nine state assemblies were asked to recommend dissolution of their
respective state legislatures even though in respect of some of them (the state
assemblies of Rajasthan, Orissa and Punjab) the constitutional term of five years
had not then expired (the Union Law Minister endorsed the circular of the Home
Minister saying that a clear case had been made out for the dissolution of
assemblies of nine Congress ruled states and there was need for holding fresh
elections). All this was a pressure tactic not envisaged by either the text or
the spirit of the Constitution. But it worked.
When the
circular was challenged by the concerned state governments, regrettably (in
retrospect), our Supreme Court endorsed approval (in May 1977) of the Home
Minister’s circular – in the case of state of Rajasthan vs. Union of India (by
a majority 5:2) paving the way for the imposition of President’s Rule under
Article 356 in all the nine states, and rudely shaking the balance of the
federal structure under our Constitution.
Because in
March 1994, the Supreme Court of India did say in a larger Bench decision of
nine judges (in Bommai’s case) that the view taken in the state of Rajasthan
case was erroneous: that the mere defeat of the ruling party at the Centre
could not by itself without anything more entitle the newly elected party which
assumed power at the Centre to advise the President to dissolve the assemblies
of those states where the party in power was other than the one in power at the
Centre. But all this was said when it was too late to have any practical
effect.
Because
when the Janata wave had petered out, and Indira Gandhi’s Congress Party came
back to power in 1980, it was the Supreme Court judgment of May 1977 (in the
Rajasthan case) that was used to invoke Article 356 and to dissolve all the
nine state assemblies composed at this time of a majority of Janata Party
members!
President
N. Sanjiva Reddy signed the Proclamation – with some hesitation. He is reported
to have said: ‘Given the precedent, how could I say No.’ Granville Austin
records in his great book, Working a
Democratic Constitution, that Sanjiva Reddy also said: ‘I told Indira that
Morarji had been wrong in principle and to dissolve again was still wrong.’ But
even with this mental reservation, the President went along and signed the
proclamation! These are but a few of the glaring instances when political
expediency of the moment was made to prevail over adherence to
constitutionalism and constitutional norms.
The Sarkaria Commission drawing attention to the repeated
abuse of Article 356 has pointed out that during the period from 1951 to 1987,
of the 75 occasions when the President’s rule was imposed, only in 26 cases was
President’s rule inevitable. It is evident from this that one of the federal
features of the constitution, Dual Government, failed to function the way which
constitutional makers wanted.
(ii) Distribution of powers between two governments.
The subjects on which
Federal Government and States can legislate are listed out in seventh schedule
of the constitution. The central government possessed over-riding power in
matters of legislation in respect of subjects on concurrent list and also
residuary power. Centre can legislate on state subject also on various occasions
(listed in para (iv) under heading ‘supremacy of the constitution’). As the Governors role in the government of a
particular state often based on the party at the centre, the ruling party reshuffle the Governors
whenever it forms new government at the centre.
Article 200 and 201 which empower the Governor to withhold assent to
bills, and reserve them for Presidential approval makes the centre all the more
supreme and powerful than intended by the constitutional makers.
(iii)
Authority of Courts.
Generally in a federation, there
prevails dual judicial system. The Federal court and the State courts and the
States have their own highest Courts. But, India follows unified judicial
system with Supreme Court independent from the Federal or State Governments has
the last word in matters involving Constitutional affairs.
(iv) Supremacy of the constitution:
The constitution
is binding on the Federal and the State governments. The Central Government as
well as the State Governments derive their powers from the constitution. Also,
neither of the two Governments should be in a position to override the
provisions of the constitution related to the powers and status enjoyed by the
other. The very same nature of this type of rigidity or supremacy of the
constitution places the States in disadvantage position on many occasions. The
provisions of the Indian constitution which places the States in a subordinate
position (contrary to co-ordinate position in the constitutions classified as
Federal) is as follows:
a. In USA and Australia, States have their own constitutions
which are equally powerful as the federal constitution. But, in India, there
are no separate constitutions for the member state except Jammu and Kashmir.
b. India follows the principle of uniform and single
citizenship, but in the USA and Australia, double citizenship is followed.
c. In the USA, it is not possible for the Federal govt. to
unilaterally change the territorial extent o f a state, but in India, the
Parliament can do so even without the consent of the State (Article 3).
d. During National Emergency under Art.352, the Parliament
can make laws on subjects, which are otherwise, exclusively under the State
list. The parliament can give directions to the States on the manner in which
to exercise their executive authority in matters within their charge. The
financial provisions can also be suspended. Thus in stroke, the Indian
Federation acquires a unitary character. However, such a situation is not
possible in other federal constitutions.
e. Centre List contains 96 subjects, State list has 66
subjects as per the VII schedule. Regarding 47 concurrent subjects, in the
event of conflict between the Union and State laws, the latter must give way to
the former to the extent of such contradiction. Further more, Residuary power,
i.e., Power to enact laws on subjects not falling under any of the three lists
lies with the Central Government as per Article 249 (Canadian Model) and not
with the States, as is the case in the USA and Australia.
f. Under following circumstances, the Parliament can
legislate on subjects of State list:
Under Art.249: If the Rajyasabha passes a
resolution with not less than 2/3 majority, authorising Parliament to make laws on any state
subject, on the ground that it is expedient or necessary in the national
interest, Parliament can legislate over that subject. Such laws shall be in
force for only one year, and can be continuously extended any number of times,
but for not more than one year at a time.
Under Art.250: If National emergency is declared
under Art.352, Parliament has the right to make laws with respect to all the
state subjects automatically. i.e., state subjects are transferred into the
Concurrent list.
Under Art.252: If the legislatures of two or more
states request the parliament to legislate on a particular state subject, the
parliament can do so. However, such legislation can be amended or repealed only
by the Parliament.
Under Art.253: Parliament can make laws even on
state list to comply with the international agreements to which India is a
party. The states cannot oppose such a move.
Under Art.356:If president’s rule is imposed in a
state, the powers of the legislature of that state become exercisable by or
under the authority of Parliament. This gives the Parliament full powers to
legislate on any matter included in the state list.
g. Under Art.155, the
Governor is appointed the President and the former is not responsible to the
State Legislature. Thus indirectly, the Centre enjoys control over the state
through the appointment of Governor.
h. If financial emergency is declared by the President under
Art.360, on the ground that the financial stability or credibility of India or
any of its units is threatened, all the money bills passed by the state
legislatures during the period of financial emergency are also subject to the
control of the centre.
i. Under Art.256: The
centre can give administrative directions to the states, which are binding on
the latter. Along with the directions, the constitution also provides measures
to be adopted by the centre to ensure such compliance.
j. Under Art.302:
Parliament can impose restrictions on trade and commerce with a State or
between the States.
k. Under Art.312, the All
India Services officials- IAS,IPS and IFS (Forest) are appointed by the centre,
but are paid and controlled by the state. However, in case of any
irregularities by the officer, states cannot initiate any disciplinary action
except suspending him/her.
l. Judges of the High courts are appointed by the President
in consultation with the Governors under Art.217 and the states do not play any role in this.
m. Stated Governments
have no say in the appointment of Governors. In exercising powers under Art.200 and 201 in withholding
assent to bills, and reserving them for Presidential approval, often Governor
acts as an agent of Central Government instead of guardian of constitutional machinery in a state.
FINANCIAL MATTERS INVOLVING FEDERAL AND STATE GOVERNMENTS:
Indian Constitution does not make clear cut distribution of
the financial resources and leaves much to be decided by the Central government
from time to time. The financial resources which have been placed at the
disposal of the States are so meagre that they have to look up to the Union
Government for subsidies and contributions.
Fiscal matters:
Sources of
revenue to the Centre are relatively elastic and expansive as against those of
the states. The centre also controls vast resources generated through deficit
financing, loans from organized money market in the country as well as huge
funds of foreign aid. The residuary powers of taxation also vested with the
Central government. In addition to this, constitution also authorizes the
Centre to collect surcharges on taxes to raise additional funds in times of
emerging. Another loophole in taxation system, on account of which states
suffers, is the corporate tax, which keeps on expanding and is in the exclusive
purview of the Centre. The states therefore have to be dependent on Central
assistance.
Grants –in-Aid:
Centre
gives grant-in-aid to States under Article 275 on its discretion for undertaking welfare schemes,
meet natural calamities or for removal of disparities etc. A close scrutiny of
the Central relief to states affected by natural calamities indicates that no
well considered norms were followed in this regard. The Central teams
preoccupied by political considerations have always assessed natural calamities in an ad hoc
perfunctory manner. It is usetate that happens to be out of favour with the
Centre.
Demerit of Centralised Planning Mechanism:
The
Administrative Reforms Commission (appointed in 1967) expressed the opinion
that centralized planning had tended towards excessive interference in the
freedom of States to work out their policies and programmes.
Thus we can
clearly say that Indian Constitution places the States in a subordinate
position in financial front as well.
Distribution
of powers Vs delegations of powers:
The
striking difference between the Federal and unitary form of government in
functional aspect of these two forms is federal form is identified with
distribution of powers and unitary has delegation of powers down the lines
flowing from the central authority.
Indian Sceneraio:
Legislative:
Distribution
of powers heavily tilts in favour of the Union. The union list comprises the
highest number of items (97) . In the
concurrent list (47) also, the Centre super cedes the powers of the States.
Thus the Centre dominates in about two-third of the total subjects. [State
subject 66,where asUnion+Concurrent=144]
Centre has not only been granted more extensive powers than
the States, even the residuary powers have been granted to it contrary to the
convention in other federations of the world, where the residuary powers are
given to States. Further, the constitution permits the Union legislature to
enact a law with respect to any matter enumerated in the state list, if the RajyaSabha
, passes a resolution, supported by not less than two-thirds of its members
present and voting, on the grounds of national interest. The argument put
forward by the group who favours such resolution is that the upper house (RajyaSabha) is a house of States
because of its members are selected by State legislatures and passing of any
resolution to take over the state subject temporarily, does not amount to
interference in federal structure. This does not hold water because of nature
of composition of membership at any
given time does not reflect the real position exist in the State legislatures.
For example, At present (in 2012), AIADMK, the ruling party in Tamil Nadu
State has less members in RajyaSabha
than DMK who is also a coalition partner at the Centre (not likely to oppose
the centre because of coalition dharma)
and the main opposition party DMDK has no representation in the
RajyaSabha. Hence the RajyaSabha echoes the
sentiments of the states is not agreeable.
Yet worst
situation is that Laws passed by the State legislature on a subject on the
state list, may be reserved for the consideration of the President by the
Governor, some of them have to be specifically reserved and some of them cannot
be even introduced or moved in the State legislature without the previous
sanction of the President.
Executive:
Union Government is
empowered to issue administrative directions to the
States in relation to certain matters such as to ensure
compliance with the laws made by the Parliament or prejudice the executive
power of the Union. The Constitution provides the adequate means for securing
the compliance with the directions by the States. Non-compliance can be treated
as a failure of the constitutional machinery and entitle the President to impose,
what in common parlance is called President’s rule in that State under Article
356.
Generally
in federation, there is separation of public services. The federal Government
has own public services while the States have their own distinct services and
they administer their respective laws and functions. In India, there is no
division of public services. The majority of Civil servants are employed by the
States, but they administer both the Union and the State laws as are applicable
to their respective States. Our constitution provides creation of All India
Services, but they are to be common to the Union and the States. Members of all
India service can be dismissed or removed only by the Union Government, even
though the State Government is competent to initiate disciplinary proceedings
for the purpose of any act of omission or commission.
Though Law and Order is a State subject, the Centre deploys
Central Reserve Police in States, whenever it deems necessary, without the
concurrence of States. In fact, sometimes it deploys against the wishes of and
inspite of protest by the State Governments.
The State
service officers are not treated at par with All India Service Officers. For
example, Sub Collector appointed through All India Service (IAS) is superior to
the Sub Collector appointed through the State Public Service Commission. The
Officers conferred with IAS or IPS are also not treated on par with direct All
India Service Officers. This will
indirectly affect the morale of officers appointed by the States. This is one
more example to prove that there is a great tendency towards more power to
centre at executive as well.
Judiciary:
In India
there is no bifurcation of the Judiciary as between the Federal and State
Governments. Generally in federation there prevails dual judicial system. Cases
arising out of the Federal constitution and federal laws are tried by the
federal courts, while the State courts deal with cases arising out of the State
laws, But in India, the same system of courts, headed by the supreme court,
will administer both the Union and State laws as they are applicable to the
cases coming up for adjudication.
The
distribution of legislative, executive and judicial powers between the States
amply proves that constitution makers intended central to be really strong and
ended up with the provisions of distribution of powers to the States with equal
number of counter-provisions making it nearly impossible to achieve the
federalism in true spirit.
From the
aforesaid discussions we can conclude that the majority features of the
Constitution of India are unitary and they can be summarized as follows:
(i) Single constitution.
(ii) Single citizenship
(iii) Integrated judicial system
(iv) Single Election Commission.
(v) Single Comptroller and Auditor General.
(vi) All India Integrated Services.
(vii) Appointment of Governors and Judges of High Courts.
(viii) Amendment of the constitution.
(ix) Powerful Central government.
(x) Unequal representation in the Rajyasabha.
(xi) Financial Emergency.
(xii) Emergency powers of Centre.
(xiii) Imposition of President’s rule.
(xiv) Parliament’s power over state list
(xv) Residuary powers.
(xvi) Union Government’s powers to issue directions.
(xvii) Presidents assent for State Bills.
(xviii) Financial dependence of States.
Usually, Committees
or commissions are appointed to find the cause and suggest ways and means to
solve either the crisis or when the things are not moving in a correct
direction. Appointment of Sarkaria Commission in 1983 and Punchhi Commission in
2007 to examine and review the working of the existing arrangements between the
Union and States as per the Constitution of India itself means that things are
not moving in the way it is supposed to be in the federal form as claimed.
Growth of regional parties, Governments headed by different
parties at Centre and States, Coalition
government at the Centre in last two decades etc. had broken the myth, Indian
Constitution is federal in form, as believed at the time when the Centre and
States were ruled by one and the same party.
Conclusion:
Whether a
constitution is unitary or federal depends not on the pattern on which it has
been drafted, but on its functionality. Functional aspect of the Indian
Constitution in present days and growing fear of the States that they are
reduced to the status of glorious municipalities make me to understand that
Indian Constitution is Unitary in form and it is only members of drafting
committee painted it with Federal colour. The colour faded away in a changed
political climate and the real form of Unitary remained.
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