Unitary and Federal Character of the Indian Constitution written by Nishant Aryaman student of Chanakya National Law University, Patna
“Federalism is the best curb on democracy. [It] assigns limited power to the central government. Thereby all powers are limited. It excludes absolute power of the majority.”
– Lord Acton
The population of India, in July 2020, reached 1.38 billion and is still growing. India has the second-largest population in the whole world. A country with such a vast population and a diverse culture needs a very strategic and stable kind of government that can govern such a big diversity and maintain peace. So, to run this country, the Constitution of India was enacted in 1950 and through the nature of the Constitution, it can be easily said that India has a federal system of government.
There are mainly two forms of government – Unitary and Federal. In the Unitary form of government, the power is centralized in the center, and in the Federal form of government; the sovereign power is divided among various units. It can be also called a ‘Federation’ or a ‘Federal state’ and the units, in which the power is divided, in the case of India, are the Centre, the states, and the municipalities (Panchayats).
The Constitution of India is compromised by features that are borrowed from different countries’ constitutions. Similarly, the Federal scheme is taken from the British Government of India Act, 1935. But, the Federal scheme was brought by the British to rule the colony of India and after the independence of India, the picture was very different. Administering a colony is far different from creating a federation which can bring people of different, religions, cultures, and traditions together. So, the Centre was given extensive power, on the legislature and executive side, then the State, and because of this distinctive feature, it can be said that India has a Quasi-Federal system of Government. In the year 1994, in the case of Bommai v. Union of India, the Supreme Court stated that the Indian Constitution is quasi-federal in nature. The reason was given that the word ‘federal’ is not present in the Constitution.
Federalism is one of the most basic features of the Constitution of India and this constitution makes the Union an indestructible one. The framers of the Constitution knew very well that it will not be possible to impose a Unitary form of government and a complete Federal scheme will cause distrust and chaos between the states. It was important that a strong government to be created and the power should be divided among the states and the center separately, given that the center should be given some more power. Part I of the Constitution of India is named ‘The Union and Its Territory’ and article 1 of the constitution of India says that India is a union of state. It means that India is formed by the union of different states and also there exists a federal scheme with more power in the center.
India came out from the shackles of slavery and gain independence on 15th August 1947 through the India Independence Act, 1947 at midnight of the above-mentioned date. But peace never comes free of cost. It always comes with a price. Independence came with the division of Pakistan. The country was in chaos and their communal riots all over the country. The biggest problem that was lying in front of the leaders was bringing a constitution that can bind the people of India together and run the administration of the country smoothly and equally. On 26th November 1949, the Constitution of India was adopted and legally enforced on 26th January 1950 and is recognized as Republic Day. The framers of the constitution were influenced by the British’s experience of autonomy which was inscribed by the Government of India Act, 1935, and the popularity of Federalism throughout the world.
The Post-Independence period was a period where there was patriotism and unity in the hearts of the people as well as there were differences on the basis of religion which was widening because of the India-Pakistan partition. The people needed a leader that can guide and control the situation so that everyone and everything can be brought to calm. A leader cannot monitor everything from the center. So, division of power among the states and the center was necessary, i.e., a federal structure.
The very foundation of the making of the Constitution of India was laid down in Constituent Assembly met in the Constitution Hall, New Delhi on 13th December 1946. The objective resolution’s speech was presented by Pt. Jawaharlal Nehru and Dr. Rajendra Prasad was the Chairman of the Chair. The objective was in the form of a pledge and the first line of the resolution said, “This Constituent Assembly declares its firm and solemn resolve to proclaim India as the Independent Sovereign Republic and to draw up for her future governance a Constitution.” The proposal for putting up a Constitution for a free India was proposed by this Objective resolution. The objective was passed by the Constituent Assembly and the important ideas of the resolution were; to constitute India into an independent, sovereign, and democratic republic; the Union of India will be formed of the Indian provinces and other parts of India that are willing to be its part; all parts of independent India and their ruling institutions derive their power from the people of India.
The objective of the resolution was to influence the Muslim league and the Princely states to come and join the Union of India. The demand for the division of India-Pakistan led the leaders to go for a Federal structure with a strong center. The members of the Drafting Committee were affected by this demand by the Muslim league. Dr. B R Ambedkar, playing one the most crucial roles in the drafting committee said that he would like to propose a strong center, which is stronger than the Centre in the Government of India Act, 1938.
No change can be brought into society without criticism and questions. Many questions were raised and were answered. Dr. B R Ambedkar stood very much clear and strong on his stance for a strong center and reacted to the criticism very firmly.
In his speech in the Constituent Assembly in 1946, he said he had always opposed the idea of a grouping of the provinces. He said that sometimes before, the idea of Strong center was abandoned by the Congress party. He was very much certain about his criticism. He added a question in his speech about the resolution that why there is no mention of the idea of the grouping or union of provinces that he and his party were ready to accept. He also agreed that he never like this particular idea of grouping; but now that it had been done, there should be a mention of it in the resolution.
Many other conflicts and controversies were raised in the constituent assembly too. One of the main controversies that approached in the assembly was asked by the Constitutional advisor, Dr. B N Rao about the term ‘Union’ and proposed the idea of the word, ‘federation’. But, this idea was rejected. Two reasons were given for using the term ‘Union’ instead of ‘federation’ – The Indian Union was the result of the grouping of British provinces and princely states and there was no agreement between sovereign states (British provinces and princely states were not sovereign states before Independence); the states cannot secede from the Union. The above reasons were stated by Dr. B R Ambedkar in the constituent assembly. It can be very well seen that even if the word ‘federation’ is not used in the constitution, it contains most of the federal idiosyncrasy like other federations which are discussed later in the article. Many questions were confronted that the Constitution of India is neither Unitary nor Federal. Dr. B R Ambedkar lightens up the federal nature of the constitution by bringing forward facts that make the Constitution of India of federal nature. The Union at the Centre and state has been provided with different sovereign powers by the Constitution of India and no one is subordinate to the other.
The Draft Constitution was discussed in depth by the members of the constituent assembly. Many amendments were proposed. Some of them were accepted and some of them were rejected after in-depth discussions and debates. Finally, the concept of a strong center was accepted, giving residual powers to the state and making the Constitution, the supreme authority. Thus, India became a Union of states, not a federation of states.
UNITARY AND FEDERAL NATURE
There have been a lot of debates going around about the nature of the Constitution India possesses. It is nowhere mentioned in the Constitution that India has a federal nature but it does possess the same as it has been very well explained by Dr. B R Ambedkar. The Federal nature of the Constitution of India is different from that of other countries. The basic structure of the Indian Constitution is based on the Government of India Act, 1935, and the federal scheme with a strong center is taken from the Constitution of Canada.
There are many conflicts in the country for the character of the governing system of India: Is it Federal or Unitary? The Indian Constitution has divided the power between States and Centre through the Union, State, and Concurrent lists and demonstrating the federal nature; also the Constitution contains various provisions which gives the center a dominant position demonstrating the unitary nature of the Constitution. KC Wheare has remarked that “India is a unitary state with subsidiary federal nature rather than a federal state with subsidiary unitary nature.” It can be said that India neither has complete federal characteristics nor possess complete unitary characteristics. It lies somewhere in between them.
There are some important features that make a country federal in nature like, the supremacy of the constitution, dual polity, division of power, and an independent judiciary. All these necessities are present in India.
The Constitution of India is above every law. It holds its supremacy in every field. In the case of Minerva Mills v. Union of India, it was decided that nobody is above the constitution and the constitution is the supreme law of the land. Everything is bound by the constitution; be it the people of the country or the organs of the government or legislature or executive or judiciary. Also, the Constitution of India is the supreme fundamental law and all laws have to be in consonance or accord with the Constitution. The constitutional provisions postulate the conditions for the functioning of the legislature and the executive and prescribe that the Supreme Court is the final interpreter of the Constitution. All statutory laws are required to conform to the fundamental law, that is, the Constitution.
After supremacy, division of power comes into the picture. There is a division of power between the States and the Union. Each is bestowed with sovereign powers granted by the Constitution of India. The Union looks after the matter that is of national importance mentioned in the Union List and the State looks after the matters of regional and local importance mentioned in the State list. Also, there is a Concurrent list, which is looked after by both State and the Union. This division of power gives rise to dual polity which is the spirit of federalism.
The last component of federalism is an independent Judiciary. There is an independent judiciary which is established by the constitution of India. It is headed by the Supreme Court of India. The formation of the Supreme Court of India is provided in Article 124(1). The formation of the independent judiciary for two main reasons – (i) to establish the supremacy of the Constitution by the power of judicial review, (ii) to resolve the altercations between state and center.
But, despite all these features, India cannot be called a complete federal state. There are still certain provisions in the Constitution of India which deviates from the federal nature of the Constitution and moves toward Unitary nature –
- For the reasons of national interest, the parliament can make laws with respect to every matter mentioned in the state list. Even if there is an overlapping in the matters of the three lists enumerated in the 7th schedule of the Constitution of India, the Union has got predominance over the state.
- In financial matters, the Union has more financial powers than that of the state. The central government has many revenue sources and the state has to depend upon the center, mostly, for the revenue.
- The planning commission empowers the states only to implement the plans. All the planning is to be done at the union level.
- Parliament holds the power to alter the state boundary and can even form new states and the state has no say in it. The states have been provided with no right to secede from the union.
- The Union territories, as the name suggests, are under the control of the union directly.
- The Governor of a state is appointed by the President.
- The most vital of all is the emergency provisions which, in cases of threat to the security of the nation or in cases of financial or other crisis, shifts all the powers in the hands of the center.
All these provisions, statutes, and laws show that the Indian Constitution is of the federal nature with a strong Centre.
DIMENSIONS OF FEDERALISM
From the era of pre-independence, via early post-independence time to the present stage, the names and dimensions of Indian federalism have changed a lot according to the situations. Different scholars and professors have awarded the Indian constitution with different names. Dr. Subhash Kashyap called it, “the Indian Constitution establishes a strong center”; KC Wheare called it as “Quasi-Federal”; for Paylee, it is “perfectly federal”; Morris jones named it as “bargaining federalism”.
It is also called asymmetric in nature. The word ‘asymmetric’ means unequal or uneven. Asymmetrical structure in the constitution or asymmetrical federalism means an unequal share of powers between the parts or units of federalism in the legislative, administrative, political, or financial spheres. In the case of State of Karnataka v. Union of India, the court held the same about the federal nature of the Constitution of India saying that the executive and legislative powers are dominated by the Centre. This domination of the Centre over the state in the areas of executive and legislative fields as well as fiscal spheres shows the vertical asymmetry.
Despite all the names awarded, India, most of the times, is said to be a Quasi- Federal state with both Unitary and Federal nature.
India is a country whose people are very much connected to the ground of cultural traditions and people related to them. If there was a unitary government, then there may be chances of clashes between government bodies and the citizen of the country. But, the powers are divided from the highest level, that is, the center to the lowest, that is, the regional government. So, there is trust between the government and the citizens.
No other form of government can be good, for a diverse state like India, to rise without disturbing the rights of the citizens. But it can only be fruitful if there is a meeting of minds, trust, and consistency.