CHAPTER 2

FEDERALISM IN INDIAN CONSTITUTION

[A]. Historical Background

Before analyzing the main features of the systemintroduced by this Act, it should be pointed out that thisAct went one step forward in perpetuating by the communalcleavage between the Muslim and the non- Muslim communitiesby prescribing separate electorate on the basis of the‘Communal Award which was issued by Mr. Ramsay MacDonald,the British Prime Minister on August 4, 1932, on the groundthat the two major communities have failed to come to anagreement. From now onwards, the agreement between the tworeligious communities was continuously hoisted as acondition precedent for any further political advance. TheAct of 1935, it should be noted, provided separaterepresentations not only for the Muslims, but for the Sikhs,the Europeans, Indian Christians and the Anglo Indians andthus created a serious hurdle on the way of the building upof the national unity, which the makers of the futureConstitution found it almost insurmountable to overcome evenafter the Muslims had partitioned for a separate state.

The Features of Government of India Act, 1935:

(i)The Federal Scheme.- While under all the previous

Government of India Acts, the Government of India was

unitary, the Act of 1935 prescribed a federation, taking the

provinces and the Indian state as units.

(A)Under the pre-existing unitary system the provinces

were under the Administrative as well as legislative control

of the central government from whom their authority was

derived. Though under the Government of India Act, 1919, the

Provincial executive exercised powers over a wide field and

was responsible to the Provincial Legislature matters, the

essence of the political system was-

“A unitary and centralized government with the Governor-general in the council

as the keystone of the whole constitutional edifice, and it is through the

Governor-general in council that the secretary of state and the Parliament

discharge their responsibilities, for the peace, order and good Government of

India.”1

In short, throughout the British rule and in spite of the

reforms introduced by the Government of India Act, 1919, the

Central Government remains the agent of the Secretary of

State who was responsible to the British Parliament and the

provinces derived their authority by devolution from the

Central Government.

The Indian States, which were ruled by hereditary

Chiefs, enjoyed various degrees of internal sovereignty, but

were controlled by the Governor-General so far as their

external relations were concerned and even in internal

affairs, the Governor-General, as the vice Roy or

representative of the Crown, held a reserve of power to

interfere in cases of maladministration and the like, by

1 Rep. of the joint Parliamentary Committee(1933-34)

virtue of the crown’s suzerainty which was conveniently

referred to as paramountcy.

The Governor-General, thus, formed the apex of

this highly centralized system.

(B)The Government of India Act, 1935, proposed to unite

the Provinces and the Indian States into a federation under

the Crown. So far as the Provinces were concerned, this

involved the process of breaking up the unitary State into a

number of autonomous Provinces which were to derive their

authority directly from the Crown (instead of from the

Central Government as under the previous system), and then

building them up into a federal structure, in which both the

Federal and Provincial Governments should get definitely

demarcated powers by direct delegation from the Crown. As

the Simon Commission put it-

“In any new constitution, in which autonomous Provinces are to be federally

united under the Crown, not only can the Provinces no longer derive their power

and authority from devolution by the Central Government, but the Central

Government cannot continue to be the agent of the Secretary of the State. Both

must derive their powers and authority by a direct grant by the Crown. We

apprehend, therefore, that the legal basis of a reconstituted Government of India

must be, first, the resumption into the hands of the Crown all rights, authority

and jurisdiction in and over the territories in British India, whether they were at

present vested in the Secretary of State, the Governor-General in Council, or in

the Provincial Government and Administrations: and second, their redistribution

in such manner as the Act may prescribe between the Central Government on the

one hand and the provinces on the other.”2

The federal structure envisaged by the Government of India

Act, 1935, however never came into being; for it was

optional3 with the Indian states to join the proposed

Federation, and they naver gave their concent.

(ii)Provincial Autonomy- Federation never took effect, the

Part relating to Provincial Autonomy was given effect since

April, 1937. The Act divided legislative powers between the

Provincial and Central legislatures, and within its defined

sphere, the Provinces were no longer delegates of the

Central Government, but were autonomous units of

Administration. To this extent, the Government of India

assume the role of a federal government vise a vise the

Provincial Governments, though the Indian States did not

come into the fold to complete the scheme of federation.

The executive authority of a Province was also

exercised by the Governor on behalf of the Crown and not as

a subordinate of the Governor-General. The Governor was

required to act with the advice of the Ministers responsible

to the Legislature.

2 This was done by Government of India Act, 1935.3 Ss. 5-6 Government of India Act, 1935.

But notwithstanding the introduction of Provincial

Autonomy, the Act of 1935 retained control of the Central

Government over the Provinces in a certain sphere,- by

requiring the Governor to act, ‘in his discretion’4 or in

the exercise of his ‘individual judgment’5 in certain

matters. In such matters, the Governor was to act without

ministerial advice, and under the control and direction of

the Governor General, and, through him, of the Secretary of

State.

The Governor General’s power to give directions6 and

the Governor extraordinary powers of legislation,

independent of the Provincial Legislature,7 also operated as

fetters upon the full play of Provincial autonomy. The

Governor had also the power acting in his discretion to make

a proclamation that there was a failure of the

constitutional machinery and assumes to himself all

executive and legislative powers in the Province.8

(iii)Diarchy at the Centre- The executive authority of the

Centre was vested in the Governor- General (on behalf of the

Crown), whose functions were divided into two groups:-

4 Cf . Ss 11, 102, 126(4), Government of India Act, 19355 S 12 Government of India Act, 1935.6 Sec. 126 Government of India Act, 19357 Sec. 43-44 Government of India Act, 19358 Sec. 93 Government of India Act, 1935

(a) The administration of defense, external affairs,

ecclesiastical affairs, and of tribal areas, was left to the

Governor General ‘in his discretion with the help of

councilors’, appointed by him who were not responsible to

the Legislature.

(b) With regard to matters other than the above reserved

subjects, the Governor General on the advice of a ‘Council

of ministers’, who were responsible to the Legislature. But

even in regard to this latter sphere, the Governor General

might act contrary to the advice so tendered by the

ministers if any of his ‘special responsibilities’ were

involved. As regards the special responsibilities, the

Governor General was to act under the control and directions

of the Secretary of State.

But, in fact, neither any ‘Councilors’ nor any

Council of Ministers responsible to the Legislature came to

be appointed under the Act of 1935; the old Executive

Council provided by the Act of 1919 continued to advice the

Governor General until the Indian Independence Act, 1947.

(iv)Distribution of legislative powers between the Centre

and the Provinces- Though the Indian States did not join the

Federation, the federal provisions of the Government of

India Act, 1935, were in fact applied as between the Central

Government and the Provinces. The division of power between

the Centre and Provinces is of special interest to the

reader in view of the fact that the division in the

Constitution between the Union and the States proceeds

largely on the same lines.

A threefold division was made in the Act –

(i) There was a federal list over which the federal

legislature has exclusive power of legislation.

This list included matters such as External

affairs; currency and coinage; naval, military

and air forces; census.

(ii) There was a Provincial list of matters over

which the provincial legislature has exclusive

jurisdiction, e.g., Police, Provincial Public

Service, and Education.

(iii) There was a Concurrent List of matters over

which both the Federal and Provincial had

competence, e.g., Criminal law and procedure;

Civil procedure; marriage and divorce,

arbitration.

The federal Legislature had, however, the power to legislate

with respect to matters enumerated in the Provincial list if

a Proclamation of Emergency was made by the Governor

General.9 The Federal legislature could also legislate with

9 Sec. 102 Government of India Act, 1935.

respect to a Provincial subject if the Legislature of two or

more provinces desired this in their common interest.10

In case of repugnancy in the concurrent field, a Federal law

prevailed over a Provincial law to a extent of the

repugnancy, but if the provincial law received the assent of

the Governor-General or of His Majesty, having been reserved

for their consideration for this purpose, the provincial law

prevailed, notwithstanding such repugnancy.11

The allocation of residuary power of legislation in the Act

was unique. It was not vested in either of the Central or

Provincial Legislature but the Governor-General was

empowered to authorize either the Federal or the Provincial

Legislature to enact a law with respect to any matter which

was not enumerated in the legislative Lists.12

(v)Non sovereign character of the Legislatures- the

Central Legislature was bi-cameral, consisting of the House

of Assembly and the Council of State.

In six of the Provinces, the Legislature was bicameral,

consisting of a Legislative Assembly and a Legislative

Council. In the rest of the Provinces, the Legislature was

unicameral.

10 Sec. 103 Government of India Act, 1935.11 Sec. 107 Government of India Act, 1935.12 Sec. 104 Government of India Act, 1935.

The Legislative powers of both the Central and Provincial

Legislature were subject to various Legislations and neither

could be said to have possessed the features of a sovereign

Legislature. Thus, the Central Legislature was subject to

the following limitations:-

(i) Apart from the Governor-General’s power of veto

a Bill passed by the Central legislature was

also subject to veto by the Crown.13

(ii) The Governor-General might prevent discussion

in the Legislature and suspend the proceedings

in regard to any bill if he was satisfied that

it would affect the discharge of his special

responsibilities.14

(iii) Apart from the power to promulgate Ordinances

during the recess of the Legislature, the

Governor-General has independent power of

Legislation, concurrently with those of the

Legislature. Thus, he had the power to make

temporary Ordinances as well as permanent Acts,

at any time, for the discharge of his special

responsibilities.

(iv) No Bill or amendment could be introduced in the

Legislature without the Governor-General’s

previous sanction, with respect to certain

matters, e.g., if the Bill or amendment sort to13 Sec. 32 Government of India Act, 1935.14 Sec. 40(2) Government of India Act, 1935.

repeal or amend or was repugnant to, any law of

the British Parliament exceeding to India or

any Governor-General’s or Governor’s Act, or if

it sort to effect matters as respects which the

Governor Genera was required to Act in his

discretion.

There were similar fetters on the Provincial Legislature.

(vi)The Federal Court- Consistent with the Federal scheme

introduced by the Act of 1935, it set up, for the first

time, a Federal Court for India. The provisions relating to

this Federal Court are of great interest in view of the fact

that this Court- was a precursor of the Supreme Court under

the Constitution and that many of the provisions of the Act

of 1935 relating to the Federal Court have been

substantially adopted in the Constitution as regards the

Supreme Court.

The Federal Court, as the guardian of the Federal system,

had an original jurisdiction to determine dispute between

the units of the federation inter se (s. 204). It was also

the appellant court from the High Courts in the Provinces

and the Indian States on Constitutional questions, that is

to say, on questions involving the interpretation of the

Government of India Act, 1935, and the Orders in Council

made there under (Ss. 205, 207).

Besides the Federal Legislature was empowered to confer upon

the Federal Court civil appellate jurisdiction which so long

belonged to the Privy Council was transferred to the Federal

Court.

Appeal however lay from the decision of the Federal court to

the Privy Council (s. 208) until such appeal was abolished

by the enactment of the Abolition of Privy Council

Jurisdiction Act,1949.

[B]. A Federal Structure with Unitary Features

Since the framers of our constitution sought to combine thebest features of different constitutional system in the wordand to avoid the vices inherent in any particular system,they had naturally, to effect a compromise between oppositetheories and models on several vital points. One of these iscombination of a federal structure with unitary features.

There has been much controversy among the scholars asto whether the system of polity introduced by the IndianConstitution is ‘federal’ or not. The Drafting Committeedescribed the Constitution as ‘Federal in Structure’ butthey preferred to call it a ‘Union’ to indicate twoessential features of Indian federalism, namely,

(a) That the Indian federation is not the result of anagreement by the units and

(b) That the component units have freedom to secede from it.

The label used by the makers of the Constitution isnot, however, conclusive on the question whether the polityintroduced by it may legitimately claim to be classified asfederal: we have to examine the relevant provisions of theConstitution itself, with reference to the standards whichare applied by the political scientists to classify thepolitical system as unitary or federal.

Different types of federal constitution in the modern world

The difficulty of any treatment of federalism is that thereis no agreed definition of a federal State. The otherdifficulty is that it is habitual with the Scholars on thesubject to start with the model of United States, the oldest(1787) of all federal constitution in the world, and toexecute any system that does not conform to the model fromthe nomenclature of ‘federation’. But numerous countries inthe world have, since 1787, adopted Constitution havingFederal features and, if the strict historical standard ofthe United States is applied to all these Constitutions, fewwill stand the test of Federalism save perhaps Switzerlandand Australia. Nothing is however gained by excluding somany recent Constitutions from the Federal Class, foraccording to the traditional Classification followed by thepolitical scientist, Constitutions are either Unitary orFederal. If therefore, a Constitution partakes of somefeatures of both types, the only alternative is to analyzethose features and to ascertain whether it is basicallyunitary or federal, although it may have subsidiaryvariations. A liberal attitude towards the question ofFederalism is therefore inevitable particularly in the viewof the fact that recent experiments in the world ofConstitution making are departing more and more from the‘pure’ type of either a Unitary or a Federal system. A

scholar has thus observed that the question whether a Stateis federal or unitary is one of degree and the answer willdepend on how many federal features the State possess.Another American scholar has observed that the federation ismore a “functional” than an “Institutional” concept and thatany theory which asserts that there are certain inflexiblecharacteristics without which a political system cannot befederal ignores the fact “that institutions are not the samethings in different social and cultural environments”.

To anticipate a conclusion, the Constitutional systemof India is basically Federal, but of course, with strikingUnitary features. In order to come to this conclusion wehave to formulate the essential minimum features of aFederal system as to which there is common agreement amongstpolitical scientists. Though there may be difference inmatters of detail, the consensus of opinion is that afederal system involves the following essential features:

[C]. Essential Features of a federal polity

(a)Supremacy of the Constitution.- A federal State derivesits existence from the Constitution, just as a corporationderives its existence from the grant by which it is created.Every power- executive, legislative, or judicial,- whetherit belongs to the federation, or to be component States, issubordinate to and controlled by the Constitution.

(b) Dual Government.- While in a unitary State, there isonly one government, namely the national Government, in afederal State, there are two Governments,- the national orfederal Government and the Government of each componentState.

Though a unitary State may create local sub-divisions, suchlocal authorities enjoy autonomy of their own but exercise

only such powers as are from time to time delegated to themby National Government and it is competent for the nationalGovernment to revoke the delegated powers of any of them atits will.

A federal State on the other hand, is the fusion ofseveral States into a single State in regard to mattersaffecting common interests, while each component Stateenjoys autonomy in regard to other matters. The componentstates are not mere delegates or agents o the federalGovernment but both the federal and the State Governmentdraw their authority from the same source, viz, theConstitution of the land. On the other hand, a componentState has no right to secede from the federation at itswill.

(c)Distribution of Powers.- it follows that the very objectfor which a federal State is formed involves a division ofauthority between the federal Government and the States.This is what Prof. WHEARE (f.n…..-WHEARE, FederalGovernment, 2nd Ed., 11;28.)describes as the ‘federalprinciple’, i.e., “the method of dividing powers so that theGeneral and Regional Governments are each, within a sphereco-ordinate and independent.” While in a unitary state, thedemarcation of powers between the Central and localGovernments is made by the Central Government and isalterable by itself, in a federal State, this demarcation ismede by the written Constitution which is source ofauthority of both the Governments and it can be altered onlyby amendment of that organic instrument.

(d)Authority of Courts.- in a federal state the legalsupremacy of the Constitution is essential to the existenceof the State. It is essential to maintain the division ofpowers not only between the co-ordinate branches of theGovernment, but also between the central government and the

state themselves. This is secured by having in the Courts(f.n------an exception to the general rule is furnished bythe Switzerland where the federal Supreme Court has no powerto guard the constitution as against the federallegislature) a final power to interpret the Constitution andto nullify any action on part of the Federal and StateGovernments or their different organs which violates theprovisions of the Constitution.

These essential federal features exist under theConstitution of India:

Not much pain needs be taken to demonstrate that thepolitical system introduced by our Constitution possessesall the above essentials of a federal polity. Thus, theConstitution is the supreme organic law of our land, andboth the Union and the State Governments as well as theirrespective organs derive their authority from theConstitution, and it is not competent for the States tosecede from the Union. There is a division of legislativeand administrative powers between the Union and the StateGovernments and the Supreme Court stands at the head of ourJudiciary to jealously guard this distribution of power andto invalidate any action which violates the limitationsimposed by the Constitution. This jurisdiction of theSupreme Court may be resorted to not only by a person(f.n….- Cf. Gujrat University v. Sri Krishna, AIR 1963 SC703 (715-6); Waverly Mills v. Raymon &Co., AIR 1963 SC90(95))who has been affected by a Union or State law which,according to him has violated the Constitutionaldistribution of powers but also by the Union and the Statesthemselves by bringing a direct action against each other,before the Original Jurisdiction of the Supreme Court underArt. 131(f.n……- Cf. State of West Bengal v. Union Of India,

AIR 1963 SC 1241). It is because of these basic federalfeatures, that our Supreme Court has described theConstitution as ‘federal’(f.n……-Cf; Atiabari Tea Co,. v.State of Assam, (1961 1 SCR 809 (860); Automobile Transportv. State of Rajasthan, AIR 1962 SC 1406(1416).

Though our Constitution possess these fundamentalelements of a federation, it possesses so many uniquefeatures that it has been variously characterized by foreignobservers as ‘quasi-federation’(f.n…..-WHARE, FederalGovernment, 2nd Ed., 11;28), ‘a unitary state withsubsidiary federal features’(f.n…..-WHARE, India’s NewConstitution Analyzed, (1950)5 DLR 25 (Journal)) , ‘afederation with strong centralizing tendency’(f.n…..-JENNINGS, Some characteristics of the Indian Constitution).

[D]. Peculiar features of Indian federalism

In order to make proper estimate of Indian federationit is, therefore, necessary to examine its peculiar featureswith reference to other federal system, particularly theAmerican, which is still regarded as the mother of thefederal Constitution.

(A)The mode of formation.- a federal union may be formedin either of two principal ways, having regard to pre-existing condition of a component units,- (i) it may beformed by a voluntary agreement between a number ofsovereign and independent States, for the administration ofcertain affairs of general concern, as in the case of theUnited States of America or Australia; or (ii) the provincesof a unitary State may be transformed into a federal union,as happened in the case of Canada. The provinces of Canadahad no separate or independent existence apart from thecolonial Government of Canada, and the Union was not formedby an agreement between them but was imposed by the British

statute, which withdrew from the provinces all their formerrights and then re-divided them between the Dominion and theProvinces(f.n…..- CLOKIE, Canadian Government and Politics,1944,p.206).

According to LORD HASLDANE in A.G. for Commonwealth v.Colonial Sugar Refining Co., the former represented the truefederation only in loose sense:

“In a loose sense, the word ‘federal’ may be used , as itis there (in Canada) used. To describe any arrangement underwhich self-contained States agree to delegate their powersto a common Government with a view to frame entirely a newConstitution even of the States themselves. But the naturaland literal interpretation of the word confines itsapplication to cases in which these states, while agreeingon a measure of delegation, yet in main continue to preservetheir original Constitution.”(f.n……- A.G. for Commonwealthv. Colonial Sugar Refining Co.,(1914)AC 237)

The Australian federation thus represented the truetype:

“Their Lordships are called upon-to interpret thelegislative compact made between the Common wealth and theStates, and they have to determine on the language of theStatute (the Commonwealth of Australian Constitution Act),what rights of legislation the federating colonies declaredto be reserved to themselves. It is clear that any change inthe existing distribution of powers has been safeguarded insuch fashion that….. the Commonwealth Parliament could notlegislate so as to later the distribution merely of its ownmotion”(f.n…..- A.G. for Commonwealth v. Colonial SugarRefining Co, (1914)AC237).

Of the Canadian Constitution on the other hand, hisLordship observed-

“Although it has been founded on the Quebec Resolution andso must be accepted as a treaty of Union among the thenprovinces, yet when once enacted by the imperial parliament,it constituted fresh departure and establish new Dominionand Provincial Government with defined power and duties bothderived from the Act of Parliament which was their legalsource”.

India had a thoroughly unitary Constitution until theGovernment of India Act, 1935. The provincial governmentswere virtually the agents of the Central Government,deriving powers by delegation from the latter (p. 8-10,ante). To appreciate the mode of formation of federation inIndia, we must go back to the Government of India Act, 1935,which for the first time introduced the federal concept inthe Constitution.

Federation as envisaged by the Government of India Act,1935:

By the Act of 1935, the British Parliament set up afederal system in the same manner as it had done in the caseof Canada, viz., “by creating autonomous units and combiningthem into federation by one of the same Act.” It did notemerge out of any ‘federal sentiment’ nor did it come intobeing as a result of a compact or agreement between theexisting States to delegate some of their powers to a commonGovernment. Al powers hitherto exercised in India wereresumed by the Crown and redistributed(f.d…..- In a mannersimilar to that of British North America Act, 1867) betweenthe Federation and the Provinces by a direct grant. Underthis system the Provinces derived their authority directlyby crown and exercised legislative and executive powers,

broadly free from Central control, within a defined sphere.Nevertheless, the centre retained control through ‘theGovernor’s special responsibilities’ and his obligation toexercise his individual judgment and discretion in certainmatters, and the power of the Centre to give directions tothe Provinces.(f.d……- though the federal system as envisagedbt the government of India Act 1935 could not fully comeinto being owing to the failure of the Indian States to joinit, the provisions relating to the provinces and CentralGovernment was given effect as above)

The peculiarity of thus converting unitary system intoa federal one can be best explained in the words of JointParliamentary Committee on Indian Reforms:

“Of course in thus converting a unitary state into afederation we should be taking a step for which there is noexact historical precedent. Federation have commonlyresulted from an agreement between independent or, at least,autonomous Governments, surrendering a defined part of theirsovereignty or autonomy to a new central organism. At thepresent moment the British Indian Provinces are not evenautonomous for they are subject to both administrative andlegislative control of the Government and such authority asthey exercise has been in the main developed upon them undera statutory rule-making power by the Governor-General inCouncil. We are faced with the necessity of creatingautonomous units and combining them into federation by oneand the same Act”.

Not the result of a compact: It is well worth rememberingthis peculiarity of the origin of federal system in India.Neither before nor under the Act of 1935, the provinces werein any sense ‘sovereign’ states like the States of theAmerican Union. The Constitution, too, had been framed by

the people of India assembled in the Constituent Assembly,and the Union of India cannot be said to be the result ofany compact or agreement between autonomous States(f.n….-supported by the majority decision in State of W.B. v. Unionof India AIR 1962 SC 1241). So far as the Provinces areconcerned, the progress has been from a unitary to a federalorganization, but even then, this has happened, not becausethe provinces desired to become autonomous units under afederal union, as in Canada. The provinces, as just seen,had been artificially ,made autonomous, within a definedsphere, by the Government of India, 1935. What the makers ofthe Constitution did was to associate the Indian States withthese autonomous provinces into a federal union, which theIndian States had refused to accede to, in 1935.

Some amount of homogeneity of the federating units is acondition for there desire to form a federal union. But inIndia, the position has been different. From the earliesttimes, the Indian States had a separate political entity,and there was little that was common in between them and theProvinces that constituted rest of India. Even under thefederal scheme of 1935 the Provinces and the Indian Stateswere treated differently; the accession of the Indian Stateswas voluntary while it was compulsory for the Provinces, andthe powers exercisable by the Federation over the IndianStates were also to be defined by the Instruments ofAccession. It was because it was optional with the Rulers ofthe Indian States that they refused to join the federalsystem of 1935. They lacked the ‘federal sentiment’ (Dicey),that is, the desire to form a federal union with the rest ofIndia. But, as already pointed out, the political situationchanged with the lapse of paramountcy of the British Crownas a result of which most of the Indian States acceded tothe Dominion of India on the eve of Independence of India

and they were brought within the Union envisaged by theConstitution by a process of ‘merger’ and ‘integration’which is fully dealt with in Part VII, post).

The credit of the makers of the Constitution lies notso much in bringing the Indian States under the federalsystem but in placing them, as much as possible, on the samefooting as the other units of the federation, under the sameConstitution. In short, the survivors of the old IndianStates (States in Part B of the First Schedule)were, withminor exceptions placed under the same political system asthe old provinces (States in Part A). the integration of theunits of the units of the two categories has eventually beencompleted by eliminating the separate entities of the Statesin Part A and States in Part and replacing them by onecategory of “States” by the Constitution (Seventh Amendment)Act, 1956.

The federal plan of the Constitution is thus uniformand not heterogeneous, as it was under the Act of 1935.

(A)Position of States in the federation.- From thehistorical background it has become already evident that theposition of the States in our federal scheme mustnecessarily be somewhat subordinate to that of the Union. Asthe federation was not the result of any compact between theIndependent States, there was no problem before the makersof the Constitution-how to maintain ‘State rights’. Fromthis has resulted a departure from strict federal Principleon several points:

(i)The American federation has been described “anindestructible Union composed of indestructibleStates.”(Texas v., White, (1868)7 Wall, 700(720). It is not

possible for the National Government to redraw the map ofthe United States by forming new States or by altering theboundaries of the States as they existed at the time ofcompact without the consent of the Legislature of the Statesconcerned(f.n…..-Art. IV, S. 3(1) of the AmericanConstitution). The same principal is adopted in theAustralian Constitution(f.n…..- Ss. 123-4 AustralianConstitution)(f.n….- State of W.B v. Union of India, AIR1963 SC 1241) with the further safeguard superadded that apopular referendum is required in the affected State toalter its boundaries.

A state may be eliminated or reformed without its concent:But under our Constitution, it is possible for the

Union Parliament to recognize the States or to alter theirboundaries or to eliminate a State altogether by a simplemajority in the ordinary process of the legislation (Art.4(2)). The Constitution does not require that the consent ofthe Legislatures of the State is necessary for enablingparliament to make such laws; only the President has toascertain the views of the Legislature of the State orStates concerned before recommending a Bill for the purposeto the Parliament, and if any State Legislature does notexpress its views within the period fixed by the President,the Bill may be introduced in Parliament even withoutobtaining the views of that State. “Parliament istherefore……… invested with authority to alter the boundariesof any State and to diminish its areas so as to even destroythe boundaries of State with all its power and authority”.

The reason why such a liberal power was given to thenational Government to reorganize the States is that thegrouping of the Provinces under the Government of India Actswas based on historical and political reason and not on

social, cultural or linguistic divisions of the peoplethemselves. The question of reorganizing the units accordingto natural alignment was indeed raised at the time of makingof the Constitution but then there was not enough time toundertake this huge task.

Reorganisation of states: The comparative ease withwhich such re-organization is possible is demonstrated bythe fact that within three years of commencement of theConstitution, a new State name Andhra was formed bysubdividing the State of Madras (see, further, under Arts.3-4, post). Shortly hereafter, the whole question ofreorganization of the States composing the Union wasreferred to a State Reorganization Commission in December1953, to have the question.

“carefully examined ……… so that the welfare of the people ofeach constituent units as well as of the nation as a wholeis promoted.”(f.n….- No, 53/69/53-Pubic, Dt. 29-12-53, Gaz.of India, Extraordinary, part 1, Sec. 1, Dt. 29-12-53)

As will be explained more fully hereafter (see under Art. 1,post), in pursuance of the recommendation of thisCommission(f.n….- Report of the State RecommendationCommission 1955), the entire structure of the Union has beenrecognized by enacting the States Recognition Act (7 of1956), followed by the Constitution (Seventh Amendment) Act,1956. By this Act the number of States which was 27 in theoriginal Constitution (in different categories), was reducedto 14. This process of reorganization was ever continuing aswill be evident from the formation of so many States,subsequently, e.g., Himachal Pradesh, Manipur, Meghalaya,Nagaland, Tripura, Haryana, Mizoram, Sikkim, Arunachal

Pradesh, Jharkhand, Goa.(f.n…..- vide p. 403 of the 14th Ed.Of Introduction to the Constitution)

(ii)Not only does the Constitution offer no guaranteeto the States against their territorial integrity beingaffected without their consent,- there is neither any theoryof ‘equality of State rights’ underlying the federal schemein our Constitution, since it is not the result of anyagreement between the States.

One of the essential principles of American federalismis the equality of the component States under theConstitution, irrespective of their size or population. Thisprinciple is reflected in the equality of representation ofthe States in the upper House of the federal Legislature isfollowed in the Australian Constitution as well. But inCanada, while each of three original provinces has 24members, the number of members from other provinces,subsequently added, varies down to a minimum of 4.

No federal equality of states: Under ourConstitution there is no equality of representation of theStates, in the Council of States. As given in the FourthSchedule, the number of members from the several Statesvaries from 1 to 34, such being the composition of the upperChamber in our Constitution, the federal safeguard againstthe interests of the lesser States being overridden by theinterests by the interests of the larger or the morepopulated States is absent under our Constitution.

Further, like the Canadian Senate, our Council of Statesdoes not exclusively represent the federal principle in asmuch as it consists of 12 nominated members (Art.80) apartfrom the representatives of the States.

No state excepting Kashmir, can draw its own constitution:(iii)The States, under the Indian Constitution, have no

right to determine their own constitution. While theConstitution of the United States (1787) simply drew up theConstitution of the national Government leaving it in “themain (to the States) to continue to preserve their OriginalConstitution” (or in case of new admissions- to draw uptheir own Constitution by a Convention) or to amend them,the Constitution of India, like that of Canada, prescribesthe Constitution of the Union as well as those of theStates(with one exception in case of Jammu & Kashmir). TheStates of the Indian Union have no right or power anteriorto or apart from this Constitution(f.n……- Cf, Bank ofToronto v. Lambe, (1887)12AC 575.

Unlike in Canada,(f.n….- S.45 of the Canada Act, 1982(SCW(3RD),P.107), on the other hand, the States under ourConstitution have no independent power to make alteration intheir own Constitution and even the abolition of a secondChamber in a State requires a law of Parliament (Art. 169).

No dual citizenship or administration: Nature of thepolity.- As a radical solution of the problem of reconcilingnational unity with “State right’, the framers of theAmerican Constitution made a logical division of everythingessential to sovereignty and created a dual polity, with adual citizenship, a double set of officials and a doublesystem of Courts.

An American is a citizen not only of the State in whichhe resides but also of the United States, i.e., of thefederation; and both the federal and the State Governments,each independent of other, operate directly upon the citizen

who is thus subject to two Governments, and owes allegianceto both.

But the Indian Constitution, like the Canadian, doesnot introduce any double citizenship but provides for onecitizenship, viz., - the citizenship of India (Art. 5).

Secondly, though the Union and the States shall havetheir own public services, there is no clear-cut bifurcationin the administration of the Union and the State Laws as inthe U.S.A. in India, the majority of the public servants areemployed by the States, but they administer both Union andthe State laws as are applicable to their respective Statesby which they are employed. Our Constitution provides forthe creation of All India Services, but they are to becommon to the Union and the States (Art. 312). Members ofthe Indian administrative service, appointed by the Union,may be employed either under some Union Department (say,Home or Defence) or under a State Government, and theirservices are transferable, and even when they are employedunder a Union department, they have to administer both theUnion and the State laws as are applicable to the matter inquestion. But even while serving under a State, for the timebeing, a member of all-India Service can be dismissed orremoved only by the Union Government, even though the StateGovernment is competent to initiate disciplinary proceedingfor that purpose.(f.n….-Cf, Kanpur Singh v. Union of India,AIR 1960 SC493(497))

Thirdly, though, in general, the Constitution dividesthe ‘executive’ power between the Union and the States onthe basis of the division of legislative powers (Arts 73(1);162), this is not intended to be a partition into water-tight compartments as in the U.S.A. Thus,-

(a)As regards laws made by the Union on ‘concurrent’,subjects, the executive power will be primary exercised bythe States, unless Parliament directs otherwise (Proviso toArts 73(1), 162).

(b)Even as regards ‘Union subjects’, the union maydelegate its executive functions to a State, either bylegislation by Parliament or by consent of the StateGovernment (art. 258). Conversely, the States may entrusttheir function to the Government of India, with the consentof the latter (Art. 258A)

(c)On the other hand, the Constitution specificallymakes it the duty of the States to execute the Union lawsand the executive powers of the State must also be soexercised as not to interfere with the executive power ofthe Union (Arts. 256-7), and in these matters, the Statesshall be under the direction of the Union. Herein, theframers of the Constitution appear to have been influencedby the pre-existing system, -i.e., under the Government ofIndia Act, 1935(f.n……-Vide J.P.C. Report, Vol. 1, para 219,p.120; S26 Government of India Act, 1935). Such a plan ofgiving directions by the Union to the States is totallyforeign to the American Constitution.

(d)Not only is the Union entitled to give directions tothe States, failure on the part of a State to carry out thedirections of the Union (Art. 365) would entitle the Unionto supersede the State Government, for the time being, byassuming to itself the powers of the State Government (Art.356).

Fourthly, there is no dual system for theadministration of justice under our Constitution. In the

U.S.A., there is a federal judiciary, with a hierarchy ofCourts with the United States Supreme Court at its head, forthe trial of cases relating to federal laws and otherfederal matters; and there is a separate system of Courts ineach State, headed by the State Supreme Court for theenforcement of the State laws. But the working of this dualsystem has been cumbersome and productive of delays in theadministration of justice.(f.n…..- DOUGLAS FROM MARSHALL TOMUKHERJEE (TLL 1956)p. 86)

No dual system of courts: India has, therefore,discarded the American model of dual system of Courts. Underthe Constitution of India, there is (as in Canada) oneintegrated system of Courts, for the administration of bothUnion and the State laws, with the Supreme court at the topas the final appellate court in all matters, whether theyrelate to Union or State laws (Art. 132-6). Of course, thereis a provision in the Constitution (Art.247) empoweringparliament to create additional Courts for the betteradministration of Union Laws, but no such court has yet beenestablished and it may be reasonably expected that we arenot going to have any separate system of federal laws as aregular feature of judicial administration, for while, theAmerican experience of entrusting State Courts with theenforcement of Federal laws during the period ofconfederation was unsatisfactory(f.n….- FERGUSON &Mc HENRY,American Federal Government,1947. P.308). In India theunified system of Courts exits from the beginning of theBritish regime, and no change was suggested when a federalscheme was first planned by the framers of the Government ofIndia Act, 1935, because the experience of a unified systemwas too deep-routed to be disturbed.

Not only is the judicial organization under ourConstitution unified, the control over the judiciary is alsounified or centralized, for though ‘administration ofjustice’ is a State subject (Entry 3 List II), the judges ofthe State High Courts are to be appointed and removed by theUnion in the same manner as the judges of the Supreme Court(Art. 217)

(D) Strong Central Bias

Even though there is a distribution of power betweenthe Union and the states as under a federal system, thedistribution has a strong Central bias and powers of thestate are hedged in which various restrictions which impedetheir sovereignty even within the sphere limited to them bythe distribution of powers basically provided by theConstitution.(f.n……- State of West Bengal v. Union of India,AIR 1963 SC 1241 . )

Firstly, it may be observed that many subjects whichwere in the State or the Concurrent list in the Governmentof India Act, 1935, were transferred by the Constitution tothe Union list so that the factors of economic andindustrial progress could be placed under the unified andcentralized control or administration. Instances to thepoint are Entries in the Union list relating to the NationalHighways (Entry 23); Inter-state trade and commerce (Entry42).

Secondly, the sphere of legislation allocated to theUnion by the Legislative Lists can be enlarged at the costof the States even in normal times. These various modes ofexpansion of the Union power are:

The constitution provides for enlargement of the federallegislative power in certain contingencies:

(a)In the national interest- Parliament shall have thepower to make laws with respect to any matter included inthe State List, for a temporary period, if the Council ofstates declare by a resolution of 2/ of its members presentand voting, that it is necessary in the national interestthat the Parliament should have power to legislate over suchmatters. Each such resolution wil give a lease of one yearto the law in question. A law made by Parliament whichParliament would not but for the passing of such resolutionhave been competent to make shall, to the extent ofincompetency, cease to have effect on the expiration of aperiod of six months after the resolution has ceased to bein force, except as respects things done or omitted to bedone before the expiration of the said period. Theresolution of the council of states may be renewed for aperiod of one year at a time (Art 249).

(b)By agreement between States-if the Legislatures oftwo or more states resolve that it shall be lawful for theparliament to make law with respect to any matters includedin the State list relating to those States, Parliament shallhave such power as regards such States. It shall also beopen to any other state to adopt such Union legislation inrelation to itself by a resolution passed in that behalf inthe legislature of the State, this is an extension of thejurisdiction of the Union Parliament by consent of the StateLegislature (Art 252).

Thus, though Parliament has no competence to impose anestate duty with respect to agricultural lands, Parliamenthas, in the Estate Duty Act, 195, included the agriculturallands situated in certain States, by virtue of resolution

passed by the Legislatures of such States, under Art 252, toconfer such power upon Parliament.

Thirdly, in the matter of distribution of the taxingpower, the more important resources having been allocated tothe Union the State has to largely depend upon financialassistance from the Union (f.n…….-State of W.B v, Union ofIndia, air 1963 Sc 1241) and there is an elaborate systemfor the making of grants and the distribution of a share ofthe proceeds of some taxes by the Union to the States. Eventhe borrowing power of the States has been subject to theconsent of the Union in certain cases (Art 293(3)).

(E) Deviation from normal federal ideas

(a)Again, though the Indian Constitution presents afederal system for normal times, it has a unique achievementof imparting to that federal system the strength of aunitary system, by enabling the federal Government toconvert itself into a unitary one, in emergencies. One ofthe basic principles of federalism, as it is understood inthe United States of Australia(f.n……- A.G. for commonwealthv. Colonial sugar refining Co., (1914) AC 237), is that thedivision of powers made by the original compact as embodiedin the Constitution should not be allowed to be supersededat the mere will of one of the contracting parties. No doubtthe ambit of the federal powers is virtually enlarged byjudicial interpretation; but the fact remains that it is notpossible for the national Government neither to transfer toitself any of the powers belonging to the States, byunilateral action nor to suspend the working of the StateGovernments.

But this will be possible under the Constitution ofIndia, and in respect, our Constitution even goes beyond theCanadian. We have already seen that it will be open to the

Union Government to supersede a State Government whichrefuses to carry out its directions as are authorized by theConstitution (Art 365). While in normal times the power togive direction is confined to some specific matters (Arts256-7), when a Proclamation of Emergency is made by thePresident (Art 352) the power of Union executive to givedirection to the State executive will extend to any matter(notwithstanding any other provision in the Constitution)(Art 353(a)); and the legislative power of the UnionParliament will also automatically extend to matters inState List (Art. 250(1)).

(b)The constitution also envisages a financialemergency which is stated to be “a situation whereby thefinancial stability or credit of India or any part of theterritory thereof is threatened.” The power to make adeclaration that such an emergency exists is vested in thePresident. On the declaration being made the executiveauthority of the Union becomes enlarged so as to enable theUnion to give directions to any State to observe such canonsof financial property as may be specified in the directionsand such other direction as the President may deem necessaryfor the purpose (Art. 360).(f.n…..- power not used upto1990)

(c)As has been already seen, even apart fromemergencies, the Indian Constitution (Art 249) empowers theUnion Parliament to assume legislative powers (thoughtemporarily) over any subject included in the exclusiveState List by a simple resolution of 2/3 of the memberspresent and voting in the Council of States (i.e., the upperchamber of Parliament itself) that such legislation isnecessary in the ‘national interest’. It is true, theCouncil of States contains representatives of the States,but owing to inequality of State representation, it is

practically the majority in one of the Houses of thenational legislature who would be competent to override thenormal distribution of powers as laid down by theConstitution.

Of course, under the Canadian Constitution, theJudiciary has helped the Dominion Parliament to legislate onprovincial matters when they assume a national importanceowing to emergency or similar circumstances having anationwide repercussion;

“ some matters, in their origin local and provincial,might attain such dimension as to affect the body politic ofthe Dominion and to justify the Canadian parliament inpassing laws for their regulation or abolition in theinterest of the dominion………….”(f.n….- A.G. for Ontario v.A.G. for Canada,(1896) AC 332 (361). See also A.G. forOntario v. Canada Temp. Federation, (1946)50CWN 534(538)(PC))(f.n….-U.S v. S.E. Underwriters Association (1944)322US 533)

But our Constitution goes further and empowers theFederal Legislature itself to directly take u a State matterupon its own determination that such assumption of Statepower is ‘necessary or expedient in the national interest’.The Judiciary has no say to as to the existence of nationalinterest in such a case.

(d)More unique is the power of the Union to assume toitself the executive and legislative powers of the Statewhenever the President is satisfied from the report of theGovernor of the State (who is appointed by the President, asalready noticed) that the Government of the State cannot becarried on according to the provisions of the Constitution(Art 356). It has no connection with the existence of any‘emergency’. It has already been pointed out that this

extreme penalty may be imposed on the State if it fails tocarry out any direction given by the Union. (Art 365).

Such a form of unilateral action to subvert the federalsystem has no precedent under any federal Constitution. Fromthe federal standpoint, this is also anomalous in as much asthe Constitution-makers did not consider it necessary toprovide for any remedy whatever for a similar breakdown of aconstitutional machinery at the Centre. Again, the power tosuspend the constitutional machinery may be exercised by thePresident, not only on the report of the Governor of theState concerned but also suo motu, whenever he is satisfiedthat a situation calling for the exercise of this power hasarisen. It is thus a coercive power available to the Unionagainst the units of the federation.(f.n….- Power used 81times in 40 years)

Though there is a division of power between the Unionand the States, there are provisions for control by theUnion both over the administration and legislation of theStates. Legislation by a State shall be subject todisallowance by the President, when reserved by the Governorfor the consideration of the President (Art 201). Again, theGovernor of a state shall be appointed by the President ofthe Union and shall hold office ‘during the pleasure’ of thePresident (Arts. 155-6). Both these ideas are repugnant tothe Constitution of the United States of or Australia, butexists under the Canadian Constitution.