Professional Documents
Culture Documents
By
NIPUN.K
1
POLITICAL SCIENCE
UNIVERSITY OF CALICUT
2014-2017
DECLARATION
2
University of Calicut NIPUN K
Date
ACKNOWLEDGEMENT
3
Thank You!
INDEX
CHAPTER-1 INTRODUCTION
4
STATEMENT OF PROBLEM
RESEARCH METHODOLOGY
Meaning of Federalism
Definition of Federalism
Essential Features of Federalism
Traditional and Modern Approach
CHAPTER-3 FEDERALISM ENVISAGED BY THE
GOVERNMENT OF THE INDIA ACT, 1935
CHAPTER-4 NATURE OF INDIAN FEDERAL SYSTEM
5
CHAPTER-1
6
INTRODUCTION
The terms 'federalism' and 'confederalism' both have a root in the Latin
word foedus,
meaning "treaty, pact or covenant." Their common meaning until the late
eighteenth
states
based upon a treaty. They were therefore initially synonyms. It was in this sense
that
James Madison in Federalist 39 had referred to the new United States as 'neither
single large
unitary state nor a league/confederation among several small states, but a hybrid
of the
two).In the course of the nineteenth century the meaning of federalism would
come to
shift, strengthening to refer uniquely to the novel compound political form, while
the
7
meaning of confederalism would remain at a league of states. Thus, this article
relates
which
The
term federalist describes several political beliefs around the world depending on
context.
or
federalist
countries such as Canada and federation as a way to appease and quell military
conflict
has failed recently in places like Libya or Iraq, while the formula is
simultaneously
model
8
to the test
To study in detail the meaning of federalism and to describe the basic principle of
Federalism.
To examine the character of Indian federal system and whether or not the Indian
9
1.2 SIGNIFICANCE OF STUDY
There has been a lot of insoluble controversy as to the question whether Indian
federal system but with a capacity to work as unitary when so required. As the new
trend in all federations is to have some sort of co-operative federalism with somewhat
dominating powers to the centre, the framers of the Indian Constitution have also
approach where the powers are distributed between National government and State
government.
10
1.3 HYPOTHESIS
Constitution of India is neither purely federal nor purely unitary but a combination of
both. According to the need and demands of circumstances and to meet the aspiration
of the people, there are some provisions in the Indian Constitution which deviates
from truly federal character. It is like a chameleon which can change colour according
to environment. Much will depend upon the role of the President, regional and
national parties, the strength of the political party in power at the Centre and its
backing in States.
The constitution of India contains various provisions for inter-state coordination and
cooperation. Cooperation and coordination between the Union and States have been
considered necessary for the development of the country. The Constitution of India,
11
1.4 STATEMENT OF PROBLEMS
What are the basic principles of Federalism and to what extent do they
Whether the federal system in India is same as in U.S.A, Canada and Australia?
as
Cooperative Federalism?
12
1.5 RESEARCH METHODOLOGY-
Methodology can be: "the analysis of the principles of methods, rules and postulates
employed by a discipline "the systematic study of the methods that are, can be, or
have been applied within a discipline", "a particular procedure or set of procedures"..
This research is based on the Doctrinal research. Doctrinal research means a research
that has been carried out of legal proposition or propositions by way of analysing the
13
According to SN Jain, doctrinal research involves analysis of case law, arranging,
ordering and systematizing legal propositions and study of legal institution through
14
CHAPTER-2
15
2.1 MEANING OF FEDERALISM
covenant with a governing representative head. The term "federalism" is also used to
between a central governing authority and constituent political units (like states or
the United States, advocates of a very small federal government and stronger state
governments are those that generally favor confederation, often related to early
Argentina, Australia, Brazill, India and Malaysia among others, are also federal
countries. Modem Constitution and Government are classified into Unitary and
federal on the basis of concentration or distribution of powers and the nature of the
relationship between the central and the regional authorities. In a Unitary constitution,
The term 'Federal' is derived from the Latin word 'Foedus' this means treaty or
written constitution, which defines and determines the powers of the two sets of
16
A citizen of federal country thus becomes subject to the decree of two
governments- Central and the regional. The Regional Government is called the
Canada.
Definitions:
Following are some of the definitions which help to understand and appreciate the
1. Prof. K. C. Wheare
the general and regional governments are each, within a sphere, coordinate
2. Montesquieu
3. Dicey
Thus in a federal Constitution both the Central and regional governments are
another.
17
The Constitution of U.S.A. which establishes dual form of government, is a
of a federal state. Federalism originates from ancient Greece. Broadly speaking, there
are two approaches to understand the federal system which are as follows:-
1. Traditional approach
Traditional approach place main emphasis on the existence of two independent and
coordinate authorities and Joint plenary powers within the jurisdiction set apart by the
Constitution. According to Prof. K.C. Wheare, the federal principle is the method of
dividing powers so that the general and the regional government are each within a
sphere co-ordinate and independent. On this basis Prof. Wheare finds that there are
only four federations in the world i.e. U.S.A, Canada, Australia and Switzerland. He
puts other federations (e.g. India) in the category of quasi federations. But this
economic forces operating in the modern era which have not left unmolded even the
tests it is not possible to find a single example of a true federation in the world.
2. Modern approach
States and the National Government are too idealistic to be followed in the presence
18
age of interdependence. This idea of interdependence and cooperation finds concrete
expression in the formulation of concurrent powers, an area over which both the
distributes between the national and state governments that there is scope for constant
requirement of both time and place. Dicey has defined a federal state, as "a political
Federalism
characteristics:-
a. Duality of Government:
and confederation
b. Distribution of powers:
19
The distribution of powers between the centre and the states is the most
important characteristics, rather the core of any federal system. In reality, the
whole federal system revolves around this basic core of distribution of powers.
governmental functions and powers between the centre and the regions.
written Constitution.
d. Authority of Courts:
20
authority of courts, which must have final power to interpret the Constitution
CHAPTER-3
21
FEDERALISM ENVISAGED BY THE GOVERNMENT OF THE
In India, the historical-process to create the federal-system was different. For long,
before 1935, British India has been administered on a unitary basis. There existed a
unitary-system. But after the end of British-colonies, the unitary system was replaced
1935 system.
The past history of India establishes that in the absence of a strong Central-
Government, the country soon disintegrates. This belief was strengthened by the
Owing to its vastness of territory and variety of people, India could not be governed
India, such a large country with diverse-cultures, religions, languages, tribal and
ethnic differences and even marginal racial variations, with historical, geographical
and political- divergences, cannot bear true faith with democracy and collective
22
By the act of 1935, the British Parliament set up a federal system in the same manner
as it had done in the case of Canada, by creating autonomous units and combining
them into a federation by one and the same Act. All powers hitherto exercised in India
were resumed by the crown and redistributed between the federations and the
Provinces by a direct grant. Under this system, the provinces derived their authority
directly from the Crown and exercised Legislative and executive powers, broadly free
from central control, within a define sphere. Nevertheless, the Centre regained control
through the Governor's special responsibilities and his obligation to exercise his
individual judgement and discretion in certain matters, and the power of the Centre to
The peculiarity of thus converting a unitary system into a federal one can be best
explained in the words of the Joint parliamentary Committee on Indian Reforms: "Of
course in thus converting a unitary state into a federation we should be taking a step
for which there is no exact historical precedent. Federation have commonly resulted
organism. At the present moment the British Indian Provinces are not even
autonomous for they are subject to both administrative and legislative control of the
Government and such authority as they exercise has been in the main devolved upon
are faced with the necessity of creating autonomous units and combining them into a
23
It is well worth remembering the peculiarity of the origin of the federal system in
India. Neither before nor under the Act of 1935, were the Provinces in any sense
'Sovereign' States like the States of American Union. The Constitution, too, has been
framed by the people of India assembled in the Constituent Assembly, and the Union
of India cannot be said to be the result of any compact or agreement between the
autonomous States. So far as the Provinces are concerned, the progress had been from
a unitary to a federal organization, but even then, this has happened not because the
The Provinces, as just seen, had been artificially made autonomous, within a defined
sphere, by the Government of India Act, 1935. What the makers of the Constitution
did was to associate the Indian States with these autonomous Provinces into a federal
Union, which the Indian States had refused to accede to, in 1935. Some amount of
homogeneity of the federating units is a condition for their desire to form a federal
union. But in India, the position has been different. From the earliest time, the Indian
States had a separate political entity, and there was little that was common between
them and the Provinces which constituted the rest of India. Even under the Federal
scheme of 1935 the Provinces and the India States were treated differently; the
accession of the Indian States to the system was voluntary while it was compulsory
for the provinces, and the powers exercisable by the Federation over the Indian States
with the Rulers of the Indian States that they refused to join the federal system of
1935. They lacked 'the federal sentiments' (Dicey), that is, the desire to form a federal
Union with the rest of India. But, as already pointed out, the political situation
changed with the lapse of paramountcy of the British Crown as a result of which most
24
the Indian States acceded to the Dominion of India on the eve of the Independence of
India.
The credit of the makers of the Constitution, therefore, lies not so much in bringing
the Indian States under the federal system but in placing them, as much as possible, on
the same footing as the other units of the federation, under the same Constitution. In
short, the survivors of the Old Indian States were, with the minor exceptions, placed
under the same political system of the old provinces. The Integration of the Units of
the two Categories has eventually been completed by eliminating the separate entities
of States in Part A and Part B and replacing them by one Category of States, by the
Constitution
25
CHAPTER-4
26
NATURE OF INDIAN FEDERAL SYSTEM
There is difference of opinion among the constitutional jurists about the nature of the
Indian constitution. One view is that it is a quasi federal Constitution and has more
Article 1(1) of our Constitutions says " India, that is Bharat, shall be a Union of
States."
While submitting the Draft Constitution, Dr. Ambedkar, the Chairman of the Drafting
Committee, stated that "although its Constitution may be federal in structure", the
Committee had used the term "Union" because of certain advantages, these
viz., (a) that the Indian federation is not the result of an agreement by an Units, and
(b) that the component units have no freedom to secede from its.
The word "Union" does not indicate any particular type of federation, in as much as it
is used also in the Preamble of the Constitution of the United States- the model of
federation; in the Preamble of the British North America Act (which according to
Lord Haldane, did not create a true federation at all); in the Preamble to the Union of
South
Africa Act. 1909, which patently set up a unitary Constitution; and even in the
[ Art. 72] to each Republic, i.e, unit of the Union. We have, therefore, to examine the
provisions of the Constitution itself, apart from the label given to it by its draftsman,
27
particularly in view of the criticisms leveled against its federal claim by some foreign
scholars.
federal State. The other difficulty is that it is habitual with the scholars on the subject
to start with the model of the United States, the oldest (1787) of all federal
Constitution in the world, and to exclude any system that conform to that model from
the nomenclature of that federation. But numerous countries in the world have, since
1787, adopted
Constitutions having federal features and, if the strict historical standard of the United
States be applied to all these later Constitutions, few will stand the test of Federalism
save perhaps Switzerland and Australia. Nothings is, however, gained by excluding so
may recent Constitutions from the federal class, for, according to the traditional
federal. If therefore, a Constitution partakes some features of both types, the only
or federal, although it may have subsidiary variations. A liberal attitude towards the
questions of federalism is, therefore, inevitable particularly in view of the fact that
recent experiment in the world of Constitution making are departing more and more
from the pure type of either unitary or a federal system. The question whether a State
is federal or unitary is one of degrees and the answer will depend upon how many
features it possesses.
Federal features:
28
To solve the controversy as the question whether Indian Constitution is federal or
the Indian Constitution. Some of the federal features of the Indian Constitution can be
summarized as follows:
1. Existence of Dual Government- There can be no federation unless there are two
sets of governments - one at the centre and the other at regional level. In
India, we have the Government of the Union of India at the Centre and
not make a constitution federal because this can be possible even in a unitary
government where a large country is divided in several regional units for the sake
central government and regional units is essential and this distribution should be
Lists of the Seventh Schedule. In respect of matters enumerated the list I, Union
has exclusive power to legislate and in respect of matters enumerated in List II,
the States have exclusive legislative power. List III is concurrent list. In respect of
matters enumerated in this list, both Union and States have power to legislate, The
Union and States have executive powers also on matters in respect of which they
have power to legislate. Thus, the Constitution provides for distribution of powers
29
3. Written constitution- This is strictly not necessary to constitute a federation but
constitution is not treated as supreme and governments are allowed to violate it. In
has held that in India, Constitution not the Parliament, is supreme Constitution is
fundamental and higher law and being so it is the touchstone of limits of powers
interpret the constitution and to resolve the disputes between central and regional
governments The authority need not necessarily be the court, but generally courts
are entrusted with this job. Under the Indian Constitution power to interpret the
Constitution rests with the courts and for ensuring independence of courts, the
judges have been given substantial protection in respect of their salaries and
tenure of service. The judges -of the Supreme Court and the High Courts cannot
be removed from service except in accordance with the provisional of Article 124
amend the constitution should not be given exclusively to centre or regional units.
Both must participate in the process of amendment, Under Article 368, certain
alone even by special majority. At least half of the States must also ratify.
30
Thus, all the essential elements of federal constitution are in principle
embodied in our constitution. Besides these, the Upper House to the centre is
Some have called it as unitary with certain federal features Granville Austin in
(ii) partial dependence of the regional governments upon payments from the central
government and,
whether our Constitution is federal or unitary was not seriously considered by the
Constitution is not federal. But the issue involved in the case was
narrow one, that is, whether Union of India could acquire landed
federal Constitution.
31
In Keshavananda v. State of Kerala , some of the Judges of the
may have, its operations are certainly judged both by the contents of
powers which a number of provisions carry with them and the use that
has been made of them, more unitary than federal In Satpal v. State of
Punjab, the Supreme court again held that ours is a Constitution where
In Pradeep Jain v. Union of India", also the Supreme Court held that
India is not a Federal State in the traditional sense of that term. It is not
has undoubtly certain federal features but is still not a federal State. It
has only one citizenship, that is, citizenship of India and a unified legal
Unitary features :
The following unitary features are relied upon by those who challenge the federal
32
Constitution has been just the reverse. Before the present Constitution was
framed, India was governed by the Britishers as Unitary State. In State of West
Bengal v. Union of Indiai and Pradeep Jain v. Union of India , this aspect was
given undue emphasis. The process of formation does not affect the federal nature.
There are many federations which came into existence not as a result of a compact
Indian States and former provinces, there has been integration but some bigger
are made on the basis of certain non-essential characteristics which are present in
India'5, this aspect was also emphasized. In our country provisions regarding
itself. States do not have separate constitutions as there is no provision for dual
citizenship, but these matters are incidents of history of a particular federation and
are not essential for co-ordinate functioning of both the tiers of the government-
pleasure. This by itself does not affect federal system very much, because
in almost all matter, he has to act on the advice of his ministers but his
33
position is liable to be misused by the Central Government under certain
circumstances. In fact, it
of Jharkhand recently.
powers between the Union and the States is on the basis of division of
Legislative powers. This is provided in Articles 73 (1) and 162, but the
division is not like watertight compartments. The laws made by the Union
Union list, Union may delegate its functions to States. Similarly, under
Article
iv. Executive Direction - Article 256 says that the executive power of a state
Parliament and that executive power of the Union may extend to giving of
directions to the states. Article 257 also provides for executive directions
34
or prejudice the exercise of the executive power of the Union. If the State
fails to carry out directions, the penalty is provided in Article 365. The
President may declare that the government of the State cannot be carried
provisions of
Article 356.
(i) Legislation by Parliament on State Matters under Articles 249 and 252-
Under Article 249, Parliament can legislate on any matter enumerated in the State
and voting that it is in the national interest. Under Article 252, if two or more
and such legislation shall be in force in those states or in any other State which
adopts it. In fact, these provisions do not affect federal character of the Indian
Article 249 is also indirectly with the consent of the States, because
35
international conference. Article 253 authorizes Parliament to make Laws for the
whole or part of the country. This provision is necessary. It is the duty of the
Union to maintain relations with the foreign States. If implementation is left at the
nineteen thirties.
(iii)Inconsistency of Union and State laws- Article 254 provides that if any
existing law, as the case may be, will prevail, It is immaterial whether
Parliamentary law is enacted before or after the enactment of the State law.'
either give his assent or withhold it and require the Governor to send it
Education Bill, however, the Bill was returned for suitable amendments
but before sending back, opinion of the Supreme Court was obtained.
5. The Judiciary-
(i) Unified Judicial system- United States of America, Australia and some other
federations have double judicial system- federal courts and state courts, but our
36
(ii) Appointment of Judges- Appointments of judges of the High Courts and the
Supreme Court are made by the President, who is also the executive head of the
Court
can be made by the President except in conformity with the final opinion
.of the
Chief Justice of India. This view has been affirmed by the Court in Special
control over State activities. But this is not peculiar in India. This system is now
directions as to how the executive power of the State is to be exercised, and the
President may modify financial arrangements between Union and States. In cases
37
and all money and financial Bills of the State may be required to be reserved for
control to the Centre over States but this is a temporary phase for abnormal
war and emergencies wider powers are conceded to the centre to cope with the
situation.
State, increase of diminish the area of any State ad later its name and boundaries.
This is a very sweeping power given to the central legislative organ. The very
Though certain checks on the exercise of this power are given in the provision, yet
It is true that India was never intended to be a federation in the strict sense of
the term The framers were aware of the hardships that were faced by some
important federations during wars and even in peace time in carrying out
not the result of an agreement by States as such no State has right to secede
from it, that the country is one integral whole and its people, single people
living under a single imperium derived from a single source. While adopting
federal system generally, the framers were keen to preserve the unity of the
38
country and therefore they included certain provisions, which are opposed to
federalism. No matter what the circumstances, it cannot change its form and
shape. It can never be unitary. On the other hand, the draft constitution (of
39
NEW TRENDS IN FEDERALISM
Though Indian Constitution has chosen to adopt federal system of government, yet the
constitution does not establish federation in the real sense of competitive federation
where units and centre are co-ordinate and none of the two depends upon the other. As
the new trend in all federations is to have a sort of co-operative federalism with
somewhat dominating powers to the centre, the farmers of the Indian Constitution
now unworkable because of fast industrial and economic development, trade and
The framers of the Indian Constitution intended to provide a federal Constitution with
Austin has rightly said that if the Indian Constitution can be called federal, it can be
described as 'cooperative federation'. In short, the following factors are responsible for
co-operative federalism:
3. Defence from external aggression and need for modern sophisticated arms and
ammunitions:
4. Welfare state.
40
In view of these changed conditions, the Constitution makers have made various
federalism:
1. Use of Legislative powers - Though under Article 246 read with three lists of the
VII Schedule there is detailed distribution of powers between the Union and
States, yet both Union and States have been given power to legislate on matters
enumerated in List III, i.e., Concurrent List The State Legislature may regulate the
local aspects of the subjects mentioned therein unless the Parliament chooses to
cover the whole field. Article 249 provides that when the Council of States passes
necessary or expedient in the national interest that Parliament should male law on
any matter enumerated in State List. It shall be lawful for Parliament to make law
for the whole or any part of the territory of India with respect to such matter while
resolution is in force. Such resolution can remain in force for a maximum period
of one year. Its operation can be extended by fresh resolutions for one year so long
as necessary.
Under Article 252 if legislatures of two or more States pass resolutions that a
executive powers of the Union and States are co-extensive with legislative powers
yet both the Articles provide that in any matter with respect to which both
Parliament and State Legislatures have power to make law. States shall have
41
executive power subject to provisions of the Constitution and law made by
Parliament. Articles 256 and 257 empower Union executive to give directions to
State executive. Under Article 258 Centre can, with the consent of the
Governor, assign its functions to State and similarly under Article 258-A, the
States can, with the consent of the Government of India, assign their functions
3. Full faith and credit to public acts, records and Judicial proceedings- Article
261 provides that full faith and credit shall be given throughout the territory of
India to public acts, records and judicial proceedings of the Union and of every
Constitution.
make laws to provide for adjudication of any dispute or complaint with respect to
the use, distribution or control of waters of any inter-state river or river valley
5. All India Services- Article 312 provides that if the council of States declare by a
resolution supported by not less than two-thirds of members present and voting
that it is necessary or expedient in the national interest to create one or more all
India Services, Parliament shall be competent to make law to provide for such all
India Services.
6. Exemption from taxes- Article 285 provides for exemption of properties of the
Union from State taxes arid similarly Article 289 exempts State properties
between the Union and the States is based on co-operation between the two.
42
i. Some taxes are levied by the Union but are collected and appropriated by
the States, e.g., such stamp duties and such excise duties on medicinal and
toilet products as are mentioned in the Union List.vi ii. Some taxes are imposed
and collected by the Union but are assigned to States, such as tax on sales and
purchases where such sale or purchase takes place in the course of inter-State
trade or commerce.10 iii. Some taxes are levied and collected by the Union but
are distributed between the Union and the States, such as taxes and duties
mentioned in the Union list, which are not mentioned in Article 268. 11 ii. Apart
from these provisions, Article 275 also makes provision for grants- in-aid to
States.
43
CHAPTER-5
44
FINDINGS
Federalism may further entrench the power and authority of long established political
clans, creating local fiefdoms insulated from electoral challenges.
Federalism may further weaken national unity and identity in states with strong
regionalist and separatist tendencies. However, it may also be a viable response to the
long history of armed separatism in Mindanao.
Federalism may worsen regional and local economic disparities with different
economic
resource endowments and human capabilities.
Fiscal Federalism: Problems of revenue generation and sharing between the central
government and states .
45
CONCLUSION AND SUGGESTIONS
Dr. B.R. Ambedkar, one of the chief architects of the Indian Constitution said: "Our
In historical as well as present context, the above statement is fully correct because:
federalism is not static but a dynamic concept", it is always in the process of evolution
and constant adjustments from time to time in the light of the contemporary needs the
For making Indian Federalism more robust and viable, the differences between the
centre and the state must be sort out so that India may successfully meet the great-
development. It is very necessary that neither the federal set-up becomes unitary nor
that it becomes too lose and weak, affecting the unitary and integrity of the nation.
progress. India is a country with unity in diversity. There are so many states that are
unique in their cultures and traditions and still feel strongly the oneness among them.
As each state has its own way of lifestyle and culture, it is important to follow federal
form of government in India. As also the Constitutional laws of India suit the federal
governance, India requires federal ruling to maintain national integration. Indians are
having lot of differences in their language, culture or lifestyle and hence live as
different states. But all Indians feel that they are all one and belong to only one
country.
46
Therefore, India deserves to have Federal Government.
It is time to undertake a study of Indian Federalism with a view to evaluate the trends,
relations and to seek to evolve ways and means to meet the challenging task of
making the Indian federation a more robust, strong and workable system so that the
BIBLIOGRAPHY
1. List of sources
Constitutional Law of India by Prof. G.S. Pande, Tenth Edition 2007, published
law Agency
47
2. List of websites referred :-
www.wikipedia.com
www.legalserviceindia.com
www.ebc-india.com
www.thehindu.co.in
Questionnaire
Age:
1
The majority of the world's nations have what kind of
48
government?
2 From the colonial period until the present, Americans have lived
under which of the following systems of government?
5 Which of the following is NOT true about the way the federal
system has developed in the United States?
6 Why does the U.S. Constitution spell out so few examples of state
authority?
49
7 Which of the following types of powers is given to Congress
through the necessary and proper clause?
50
i
ii
iii
iv
vi