DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY,
LUCKNOW
Session- 2015-2016

Subject: Constitution

Final Draft
Federalism in India

UNDER THE SUPERVISION OF:

SUBMITTED BY:
Aditya Joshi

Atul Kumar Tiwari

1

B.A.

Associate Professor

LL.B. (Hons.) IVth SEM

DR.

RMLNLU, LUCKNOW

SECTION A

Roll NO. 13

Acknowledgement:

I would like to take this opportunity to thank Atul Kumar Tiwari Sir without
whose valuable support and guidance, this project would have been impossible.
His excellent teaching guidance and steadfast support has been invaluable and
ensured the completion of this project.
Of course I never would have been able to conduct this study or write this final
draft of my project without the assistance provided by the library staff and would
also like to thank the library staff for having put up with my persistent queries and
having helped me out with the voluminous materials needed for this project.

Furthermore, I would also like to thank and show my deepest appreciation towards
my seniors for having guided me and culminate this acknowledgement by thanking
my friends for having kept the flame of competition burning, which spurred me on
through the days and I am also indebted to my various batch-mates, all of whom
took on extra responsibilities to allow me the time needed to document my findings
and share them here, to whom I owe a special thanks.

(Aditya Joshi)

Table of contents:

S.No.

Topics

Page no.

1.

Introduction4

2.

Meaning of federalism...5-6

3.

Features of federal constitution.6

4.

Federalism under world constitution..7

American Constitution

5.

Indian Federalism.08

6.

Brief history of Indian federalism09

7.

Form of Indian Constitution: Federal or Quasi- federal.......11

8.

Conclusion13

9.

Bibliography..14

Introduction:
Federalism is the basic feature of Constitution of India in which union of India is
paramount and superior. Federalism is a system of government in which the power is
divided between a central authority and various constituent units of the country. Usually, a
federation has two levels of government. One is the government for the entire country that
is usually responsible for a few subjects of common national interest. The others are
governments at the level of provinces or states that look after much of the day-to-day
administering of their state. Both these levels of governments enjoy their power
independent of the other.
Dicey calls it a political device for a body of state which desires union but not the unity.
Thus, federalism is a concept in which separate states unite in to a union without scarifying
their own independent political integrity. The principle of organization on which the
federal principle is based is that the field of government is divided between the federal and
regional authority, which acted in coordination with each other. Some of the features of a
federal constitution are:
1. Distribution of powers between union and states or various organs of the federation and
of the regional units, by the provisions of the constitution;
2. Supremacy of a written constitution; and
3. Judicial review or enforcement of that supreme constitution as law.

This project is basically focusing on what a federal constitution means, Federalism under
world constitution including India, and whether the Indian constitution is federal or not.
The last part of this project is dealing with wither federalism in India is wither away or
progressing.
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Meaning of federalism:
The term federalism is derived from the Latin term foedus, which means formal agreement or
covenant. It includes the interrelationships between the federal government and the states as
well as between the states. Federalism is thus a political system that binds a group of states into a
larger, non-centralized, superior state while allowing them to maintain their own political
identities. Certain characteristics and principles are common to all successful federal systems: a
written constitution as a supreme lex; distribution of governmental powers and functions
between the federal and state governments; an independent federal constitutional court with an
authority for the interpretation of federal constitution including the power of judicial review and
also for deciding the federal-state conflicts. Successful federal system also has a sense of
common nationality and direct lines of communication between the citizens and all the
governments that serves them. Examples of modern federal system include those of the U.S.,
Brazil, German and Nigeria.
Federalism is a form of government, in which power is constitutionally divided between different
authorities in such a way that each authority exercises responsibility for a particular set of
functions and maintain its own institutions to discharge those functions. As defined by the U.S.
Constitution, federalism is a fundamental aspect of American governments, whereby the states
are not only regional representatives of the federal government, but are granted independent
powers and responsibilities. With their own legislative, executive and judicial branches states are
empowered to pass, enforce and interpret laws provided they do not violate the constitution.
According to A.V. Dicey, a federal state required for its formation two conditions: first, local
and cultural homogeneity strong enough to form a common nationality as in cases of Swiss
Cantons, American Colonies, Canadian Provinces etc. and secondly, existence of federal
sentiments i.e. inhabitants of different countries should desire to unite as a union. In other

language of Dicey, federalism means legalism i.e. the predominance of judiciary in the
constitution, the prevalence of legality among the people.
Carl J. Friedrich defines federalism as, a union of groups that may be union of states or
communities such as political parties, trade unions etc.
Now coming to Indian aspect, Federalism is the term applied to a political system characterized
by two levels of governments each deriving its power and function from an authority which is
not controlled by either level of government. The upper level of government is the general,
national, common or central government which is of overarching nature. The lower government
is the constituent regional government and may be called a province, canton or state. 1

According to H. M. Seervai, A system in order to be called federal, it is not necessary that a

constitution should adopt the federal principles completely. It is enough if the federal principles
are predominant in the constitution.
According to D.D. Basu, the question whether a state is federal or unitary is one of degree and
the answer will depend upon how many federal features it possesses.

Features of a federal constitution:

There is no any magical formula for federalism. The framers of constitution of India knew well
that federalism was not a definite concept and lacked a stable meaning. Believing that each
federation had responded to its own situation and India had unique problem not confronted by
other federations, so, they produced a new kind of federalism to meet Indias peculiar needs. But
soon after the decision of independence they decided to have a federal structure with a strong

1. Singh Ibohal, Constitution, Constitutional Interpretations and Human Rights,

(2009), 1st Edition Volume 1, Lexis Nexis Butterworths Wadhwa, Nagpur.
6

centre.2 The president of Indian National Congress Pt. Jawaharlal Nehru, in his Haripura
Congress Session on 21st February, 1938 said, we are not against the conception of federation
and its likely that free India may be a federal India. He advocated the great autonomy for the
Indian states but warned that they will have to remain integral parts of India and the major
matters of common concern must be controlled by the centre.3
The principle of organization on which the federal principle is based is that the function of
government is divided between a general authority and regional authorities. The Government of
India Act, 1935 favoured a federal form of government despite of the fact that the federal
provisions of the Act can never came into force. The Indian Independence Act, 1947 then added
for a federal form of government. Thus when the constituent assembly framed the constitution, it
took the Government of India Act as a model. Some of the principles of a typical federal
constitution are:

1. Written Constitution:

A federal state requires written constitution. It will

be difficult to maintain the supremacy of the constitution unless the requisites of the
constitution have been reduced into writing.

2. Distribution of powers: Another essential feature of a federal constitution

is the distribution of legislative powers between centre and the states in such a way so
that both the components operate with direct authority over the citizens. In federal
government, the authority extends over the entire territory of the country whereas in
regional government the authority extends over the citizens residing within that
particular territory. Indian constitution partially adopted the scheme of Government of
India Act, 1935, and adopted 3 lists rather than two and conferred the residuary power
to the parliament. There is also distribution of executive powers between union and
the states including the powers related with revenue matters by taxes operating on
mutually exclusive spheres.
2.Singh Mahendra P., Federalism, Democracy and Human rights: some reflections,
Journal of Indian Law Institute, volume 47, (2005)
3.Prof. Jariwala C.M., Nehrus Federalism: Retrospect And Prospect, Banaras Law
Journal, volume 21 & 22, (1985-86)
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3. Independent judiciary: The judiciary in a federal state acts as a guardian

of the constitution. The distribution of powers as given by constitution is guarded by
judiciary. It interprets the constitution as well as enforces it also against federal as
well as state governments.

Federalism under world constitution:

American Federalism
Constitution:
The mode of formation under American constitution is by a voluntary agreement between
a number of sovereign and independent states for the administration of certain affairs of
general concern. There are two separate constitutions belonging to federation and states
respectively. One is called the federal or national constitution which is for union and each
state has its own separate constitution. The supremacy clause of federal constitution
provides that the federal constitution is binding on each state. The federal constitution
shall be the supreme law of the land and in case of conflict between the two, the federal
law shall prevail. The American federation has been described as an indestructible union
composed of indestructible states. It is not possible for the national government to
redraw the map of the United States by forming the new states or by altering the
boundaries of the states as they existed at the time of its compact without consent of the
legislatures of the states concerned.
One of the essential features of the American federalism is the equality of the component
states under the constitution, irrespective of their size of population. This principle is
reflected in the equality of representation of the states in the upper house of the federal
legislature i.e. the senate, together with the guarantee that no state may without its
consent, be deprived of its equal representation in the senate. It has created a dual polity,
with a dual citizenship. An American citizen is not only a citizen of the states in which he
resides but also of the United States.

Amendments:
8

American federal constitution is the result of agreement of parties to the federation and
so the amendment procedure is rigid. Article v of the American constitution provides that
amendments proposed by the federal legislature should be in accordance with Article v of
American constitution and it must be ratified by legislatures of three fourth of the states.

Judiciary:
In U.S.A. there is a dual system for administration of justice. There is a federal judiciary
with a hierarchy of courts with the United States Supreme Courts at its head, for the trial
of cases relating to federal laws as well as the federal matters; and there is a separate
system of courts in each state, headed by the State Supreme Court, for the enforcement of
state laws.

Residuary Power:
When a federation is formed as a result of an agreement between independent states,
what are surrendered by the states to the union must necessarily remain with the states.
The 10th Amendment of the American constitution provides that the powers not
delegated to united sates by the constitution, nor prohibited by it to the states, are
reserved to the states respectively, or to the people.

Indian Federalism:
India had a thoroughly a unitary constitution until the Govt. of India Act, 1935. We will know
from the brief history of India that how Federalism emerged in India. In India it is possible for
the parliament to reorganize the states or to alter the boundaries of the states by a simple majority
in the ordinary procedure of legislation. In our constitution, there is no equal representation of
States in the Council of states. It is also not providing for double citizenship like Canada. India
discarded the American model of dual system of courts and in India there is one integrated
system of courts for administration of justice named the Supreme Court as a final appellate court
in India.

Brief history of Indian Federalism:

9

We can divide the history of Indian federalism in following phases:

1. 1867-1869: We started with 1867 down to 1869. In this period we find that British
India started with unitary constitution. Even though some of the authorities they say
looking to the Govt. of India Act, 1869 that there was;
A revolution of financial power: during this period all the taxes cant be collected
by centre and so some power was given to states. Some of the authorities say that this
was the period where the seed of federalism was sowed. But it was wrong because even
though there was revolution of financial power but total control was under the control of
governor general.

Report of 1871, the devolution of financial power: The report of 1871 also
suggests that there was devolution of financial power because it was very difficult for
centre to collect all the taxes.
2. 1918: It was an important period where the th Commission in its report for the first
time talked about federalism. It said, India needs federalism, but to adopt the
federalism was the future goal of British parliament. In 1918,no representation by Indians
were there in British parliament and administration and there was only one government
which was ruling in the country.
3. 1919: In 1919 Diarchy was first time introduced in India. For the first time we
demarcated in India such a federal and provincial authority. Provinces performed their
function by the approval of the Governor- General and it was subordinate to federal govt.,
but there was one thing that there were some reserved subjects which was performed by
approval of Governor- General, as well as transfer subjects to which approval was not
required.
4. Motilal Nehru report: He recommended in his report that a time has came when
India should have a federal structure.
5. Simon Commission: During 1929-1930, this commission in its report has said that,
India should have a federal structure, but at the same time it said that time to adopt it is
still not come because, neither the Indians are well acquainted and habitual to federal
constitution nor the native states will approve All India Federation policy. But the reality
was that the Britishers never wanted to do so because their parliamentary supremacy will
affect by federalism.
10

6. Round Table Conference (1931): It also suggested that soon or later India should
have a federal constitution.
7. White Paper of 1933: This paper gave a rough draft of the federal structure for India.
8. Govt. Of India Act, 1935: Power were demarcated on the basis of demarcation in
Canadian constitution. It was divided between union and provincial subjects. But the
residuary power was totally different from other constitutions of the world, and the
executive power was given to the executive. So, it was governor-general to decide who
shall exercise power on residuary subjects. He may a lot the residuary power to province
or to the federal union and he was the residuary authority.
The shape of federal structure was discussed in case of In Re Motor Spirit case [1939
Federal Court] in which C.J.Gwayer, said that, in 1935 Act India has adopted a rigid
federalism, so clear cut division of authority was there.
9. Cabinet Mission Plan, 1946: It was a blue print for the draft of the constitution.
10. Draft Constitution of India, 1948: It was drafted by B.N. Rao, which was
discussed in constituent assembly. The question was what should be the shape of federal
structure in India? Different views were there in this regard. As per Mehboob Ali Beg,
rigid federalism should be adopted in India. As per Raghwachari, Indianized form of
federalism should be adapted. As per Nehru, Ambedkar, K.M. Munshi, Krishnaswami
Iyer and B.N. Mehta, a balance federalism having strong centre should be adapted.

Form of Indian Constitution: Federal or Quasifederal?

There are three views In this regard. India has adopted the federal constitution, but according to,
Wheare, Raj Kumari Amrit Kaur, and Mehboob Ali Beg Indian constitution is not federal.
According to Alexendrowitz, Indian constitution is not totally federal but it is quasi-federal.
According to 3rd view by M.P. Jain, Seervai, D.D. Basu and Kagzi, they favored the dynamic
school of federalism and said that Indian constitutional is federal. As per Raghwachari and G.N.
Joshi Indian constitution is unitary because they only concentrated only on exceptions of
constitution. Now the question arises that weather the exceptional provisions of constitution
destroy the federal features of constitution or not?
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1. Art. 246(3):

It provides that subject to provisions of clause (1) and (2), the state

legislature has exclusive power to make law for such state or any part thereof with
respect to any matter enumerated in state list. But it is not an exclusive power and this
provision used the word exclusive because there are exceptions in our constitution
under arts. 249, 250, 252, 253 and 356 in which parliament has power to encroach upon
state subjects.
2. Art. 250: Talks about National emergency. A similar provision is there under art. 352 of
Indian constitution. When there is an emergency then parliament has power to legislate
on any subject matter under Art. 250 and 352. During emergency the state rescinded
from its own power but it did not destroy the federal feature. Looking to the American,
Canadian and Australian constitutions where the judiciary has given the power to pass
law during war time. As in case of, Dennis v. Congwell, Ferri v. Bowell and James v.
Commonwealth, the judiciary empowered the federal authorities to legislate on state
matters during emergency, example in case of war. Court said that the action of union
does not destroy the federal principle as the main object of federalism is to protect the
national interest. So, because of judicial interpretations we got the federal principles in
our constitution.
3. Art. 253: It empowers parliament to make law for whole India or any part of its territory,
to implement any treaty, agreement or convention etc. therefore, so, if any treaty between
two countries involves the protection of minority interest then the question of federalism
comes. The supreme court of U.S. said that, in order to implement the International treaty
which is supreme law, parliament may encroach the state matters. Australian constitution
provides under section 123 what we have under article 253, so, how can we say that
Indian constitution is not federal.
4. Art. 249: It did not destroy the federal principles of Indian constitution. List two
empowers the states to make law on the matters entrusted to them but in order to
implement it states needed more money, more men power and planning etc. and so in
case of its incapability to implement, it surrenders its power to union then it would not
5.

violate the federal principles because state surrenders it with its own consent.
Art. 356: It talks about the failure of constitutional machinery in the state i.e. president
rule. This provision also not violates the federal feature because above all the provisions

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are allowing only temporary encroachment by parliament on state subjects. Those

exceptions are only for a temporary period.
6. Art. 248: It provides that parliament may pass law on those subject matters which are not
there in 7th schedule. Even this provision did not violate the federal structure because the
subject is not provided in any of the three lists.
But looking to the judicial decisions from 1950 to 2000, and constitutional amendments
of last 50 years, we will find that, Supreme Court has tried to strengthen the hands of
union. Supreme Court in State of W.B. v. Union of India 4, held that even though both the
union and states in India derive their powers from the same constitution, the state would
have no legal rights as against the overriding powers of the union, because of a general
theory of paramountcy of the union.
In State of Rajasthan v. Union of India 5, Beg, C.J., observed that in a sense, therefore
the Indian union is federal. But the extent of federalism in it is largely watered down by
the needs of progress and development of a country which has to be nationally
integrated
Apart from that in Gujarat Univ. v. Sri Krishna case and Dhillons case, the judiciary has
tried to strengthen the hands of union. So, the growing tendency as per Beloff said,
moving towards unitary constitution. It is a federal constitution moving towards unitary.
India has adapted a federal structure in the light of which Mc Whinny, Livingstone, and
Dicey said that it is started moving towards cooperative federalism but it has changed its
direction towards centralization of power. But constitution is federal because it changes
its direction only.

CONCLUSION:
As stated by Prof. Beloff,
Federalism is a transient form of Government.
4 AIR 1963 SC 1241
5 AIR 1977 SC 1361
13

In India we had also started with unitary constitution way back but this British spirit could not
maintain for a long and we came up with the federal structure. India is undoubtedly a federation,
but some authorities like Raghwachari and G.N. Joshi is of the view that Indian Constitution is
Unitary because they totally relied upon the exceptions and powers given to Union. But they
while saying so forget that these provisions are evoked only at the time of emergency, or for
national interest or with the consent of state concerned. Apart from that the conditions of India is
not on par with U.S.A. or Australia, so that strict federation can be adopted. As per judicial
response in cases like State of Rajasthan v. Union of India6, we can say that though in India there
is federal scheme, but paramountcy of union cannot be snatched away. Constitution of India is
truly federal and it cannot be said that federalism is withering away. It is just surviving in India
for last 64 years but Indian Federalism has yet to get proper nourishment for its growth.

Bibliography:

Books
1. Basu D.D., Comparative Federalism, 2nd edition revised 2008, Wadhwa & co.
Nagpur.
2. Basu, D.D., Commentary on the Constitution of the India, 8th edition 2008, Lexis
Nexis Butterworths Wadhwa, Nagpur.
3. Jain M.P., Indian Constitutional Law, 5th ed. 2003, (volume 2), Wadhwa & Co.
Nagpur.
4. Pylee, M.V., Constitutions of The World, 3rd edition, Volume 1, Universal Law
Publishing Co.
5. Seervai, H.M., Constitutional Law of India, 3rd edition, volume 1(1983), N.M.
Tripathi Pvt. Ltd. Bombay, Sweet & Maxwell ltd. London
6 AIR 1963 SC 1241
14

6. Singh Ibohal, Constitutions, Constitutional Interpretations and Human rights, 1st

edition 2009, Wadhwa Nagpur & co.

15