Federal Principle Under the Indian Constitution – A Perspective
A constitution is the legal document in which various guiding principles are established, functions and procedural aspects of the government are specified under which the different government bodies function. The constitution is the supreme law of the land which Kelsen determines as the “Grund Norm” in his pure theory of law. The US Constitution is the pioneer of all federal constitutions followed by the Canadian and Australian constitutions respectively. It can be traced that the federal principle was adopted in the Government of India Act, 1935 and the same was reinserted in the draft constitution by the Constitution Assembly.
Dr. BR Amedkar finds it convenient to describe the Indian constitution as both federal and unitary. He is of the opinion that it functions as a federal constitution in normal conditions and as a unitary one during war or crisis. federal principle: The principle can be understood as ‘the method of division of powers, so that the general and regional governments are each within a sphere of coordination and independence; and not subordinate to each other—Professor Wheare. The existence of coordinated authorities independent of each other is a gift from the federal head, while the supreme sovereign power is invested with the only central body that ultimately controls the state in a unitary form of government. Federalism is not a static concept but a dynamic one. It is always in the process of evolution and constant adjustments. Federalism is also recognized as one of the basic features of the Constitution in the case of Kesavananda Bharathi.
Federal features:
• There must be a written and rigid Constitution. Since the Constitution is the supreme law of the land, it must be rigid to maintain its supremacy.
• The written constitution is essential for the federal government to function well.
• The distribution of powers between the central government and the state governments is the most essential and orderly feature of a federal constitution. The distribution must be such that both governments exist in a coordinated and independent way in their own spheres.
• An independent and impartial judiciary must uphold the supremacy of the constitution by interpreting the various provisions and resolving disputes between laws enacted by governments and the Constitution.
To be called federal it is not necessary for a Constitution to fully adopt the federal principle. It is enough that the federal principle is the predominant principle in the constitution. The mere presence of unitary features in a constitution which may make the constitution ‘quasi-federal’ in law, does not prevent the constitution from being predominantly federal in practice. (HM Seservai). Professor Whear described India as neither federal nor unitary but ‘quasi-federal’. The Indian Constitution came into force on January 26, 1950 adopting the predominant federal principle. The dominance doctrine established by HM Seevai is invalid as the degree of dominance is negligible compared to other Federal Constitutions.
According to MC Setalvad, “India’s constitution, drawn up in the mid-20th century, presents a modified form of federation suited to the special requirements of Indian society.” Article 1 of the Constitution describes it as a Union of States. Dr. BR Ambedkar justifies that it is advantageous to describe India as a union of States, even if it is federal in nature. Therefore, during the crisis it will have a Unitary character. Teacher. Alexandrowitz says that India is supposed to have a quasi-federation mainly because of articles 3, 249, 352 to 360 and 371.
It can be rightly stated that he supports Lord Ambedkar’s point of view. Power to alter the boundaries: Article 3 empowers Parliament to alter the boundaries of the states even without the consent of the states, which dilutes the federal principle. The state of West Bengal in its memorandum submitted to the President of India likens Article 3 to a damocle sword hanging over the heads of the states. HM Seevai defends the power of Parliament to alter state boundaries that “by extra-constitutional agitations the states have compelled parliament to alter state boundaries”
In practice, therefore, the federal principle has not been violated. “However, Seevai agrees that the power vested in Parliament was a serious deviation from federal principle. History reveals that there has been no answer or logical basis for such a serious deviation. Distribution of powers: The distribution of powers it is one of the prerequisites of a federation of states.The object for which the federal state is formed involves a division of authority between the national government and the separate states- Prof. AV Dicey.
Parliament may legislate in respect of a matter under the List of States a) in the national interest (Art. 249) or b) if an emergency proclamation is in force (A250). Provisions resolving the inconsistency between central and state laws are also weighed in favor of the center (A251 and 254)-AG Noorani. Gwyer CJ noted that the granting of residual power to the center has been made following the Canadian constitution. The United States and Australian constitutions, which are indisputably federal, vest residual power in the states.
Non-congressional opposition party conferences [held in 1986-87] resolved to require the granting of residual powers to the states as a measure to strengthen the federal principle.
• Under the current provisions of our Indian Constitution, the states are entitled to a share of the revenue of the centers derived from only a few taxes, mainly income tax and excise taxes ( @ 45% approx.)
• Finance Commission constituted under Article 352 as the steering wheel of Indian federal financial relationship
• Section 365 dilutes the Federal Principle by imposing the President’s Rule on the State that does not comply with the direction of the Center. Seevai defends the power as it is open to judicial review. But it can be noted that the imposition of the President’s Rule affects the independence of States. However, in practical terms, when a democratically constituted government is overthrown through the imposition of the president’s rule, it is not only undemocratic but places a burden on state coffers to carry out re-elections. Judicial review is a time-consuming process, and sometimes by the time the decision is rendered, the government’s mandate may expire. Therefore, the granting of such general power to the Center is undesirable as it affects the democratic process and dilutes the Federal Principle.
• The President is competent to proclaim an Emergency in any part or in the entire country under Article 352 if he is convinced that a serious emergency exists. The 44th Amendment to the Constitution replaced the words “internal disturbances” and inserted “armed rebellion.” The proclamation of the Emergency in 1975 by unilateral decision of the then Prime Minister of India, Mrs. Indira Gandhi, led to the Constitution Amendment and the power has been very misused during the emergency.
• In Rajasthan v Union of India, the Supreme Court has reiterated its ruling in West Bengal v. India. Union that the extension of Federalism is to a great extent diluted by the needs of progress and development of the country.
• The state of West Bengal submitted a memorandum suggesting certain changes to our Constitution to strengthen the federal principle.
The power of parliament to change the boundaries of a state under section 3 must be subject to the state’s approval. The residual power provided for in article 248 of the Constitution must be conferred on the States. The elimination of Article 249 and Articles 356 to 360 would probably strengthen the federal Principle.
• It is unfortunate to note that there has not been an adequate use of article 263 of the Constitution. It is time to reconstitute the Interstate Council as a high-powered, independent, autonomous body. It should be entrusted with the responsibility of dealing with all matters between the center and the states. The Finance Commission and the Planning Commission must constitute independent autonomous authorities and the appointments will be made in consultation with the States. Adequate autonomy must be provided to the States through the granting of powers to the States and through the appropriate modification of articles 3, 249 and 346 respectively. The granting of residual powers to States is also desirable. Governors will be appointed by the interstate council. Controversies, if any, between the Center and the States, will be resolved expeditiously through the constitution of Special Constitutional Chambers.