The Constituent Assembly addressed itself to the immensely complex task of devising a Union with a Strong Centre. This task was beset with many difficulties. They had to bring into the Union not only the British Indian Provinces, but also the Princely States and the remote inaccessible Tribal Areas.
They were conscious that several areas and regions of this sub-continent had, for a very long time part, been following their own sub-cultures, administrative systems, traditions, customs and ways of life. It was, therefore, readily accepted that “there are many matters in which authority must lie solely with the units”. Further, that “it would be a retrograde step both politically and administratively” to frame a Constitution with a Unitary State as the basis.
They settled for a Parliamentary or Cabinet form of Government at the Union as well as in the constituent units. The President and the Governors were envisaged as de jure heads of the respective Governments acting on the advice of the Council of Ministers, which comprised the de facto executive.
In fashioning the form of Parliamentary government, the Assembly drew largely on the British model. In devising the pattern of Union-State Relations they were influenced, in varying degrees by the principles underlying the constitutions of Canada and Australia, which had Parliamentary system, and the United States, which had Presidential system.
They made use of the Government of India Act, 1935, after making significant changes in it. Nevertheless, the Constitution as finally passed, was seigneuries. They were substantial differences in both legal provisions and conventions between India and these other countries. The reason was that the geographical, historical, political, economic and sociological conditions and compulsions in India were basically different.
The Constitution as it emerged from the Constituent Assembly in 1949, has important federal features but it cannot be called ‘federal’ in the classical sense. It cannot be called ‘unitary’ either. It envisages a diversified political system of a special type. According to Dr. B.R. Ambedkar, Chairman of the Drafting Committee of the Constituent Assembly, it is unitary in extraordinary situations, such as, war (or emergency) and federal in normal times.
Some authorities have classified it as a “quasi-federal” Constitution. However, these labels hardly matter as both levels of government derive their respective powers from a written Constitution, which is supreme and there is a Supreme Court to interpret the Constitution.
Indian Union Indestructible
Article 1 describes India as a ‘Union of States’. These States are specified in the First Schedule to the Constitution. Articles 2, 3 and 4 enable Parliament by law to admit a new State, increase, diminish the area of any State or alter the boundaries or name of any State. A special aspect of the Indian Union is that the Union is indestructible but not so the States; their identity can be altered or even obliterated. This is a departure from a federal feature which obtains in a classical federation like the U.S.A. The Constituent Assembly rejected a motion in the concluding stages to designate India as a ‘Federation of States’.
Dr. Ambedkar, Chairman of the Drafting Committee, while introducing the Draft Constitution, explained the position thus.
“………. that though India was to be a federation, the federation was not the result of an agreement by the States to join in a federation, and that the federation not being the result of an agreement, no State has the right to secede from it. The federation is a Union because it is indestructible. Though the country and the people may be divided into different States for convenience of administration, the country is one integral whole, its people a single people living under a single imperium derived from a single source.
The Americans had to wage a civil war to establish that the States have no right of secession and that their federation was indestructible. The Drafting Committee thought that it was better to make it clear at the outset rather than to leave it to speculation or to disputes.”
Another distinctive aspect of the Indian Constitution is that it provides for a single citizenship for the whole of India. There is no dual citizenship, one of the Union and the other of the States. In this respect, the Indian Union basically differs from the American federation which recognizes a dual citizenship and consequent diversity in the rights of the citizens of different States.
In firm consistency with their resolve to constitute a Federation with a Strong Centre, the framers of the Constitution made an elaborate distribution of governmental powers—legislative, administrative and financial—between the Union and the States. To make it strong, they gave weightage to the Union, allocating to it dominant and relatively larger powers.
The Union legislature or Parliament has two Houses, the Council of States (Rajya Sabha) and the House of the People (Lok Sabha). Unlike in most federations, representation in both is on the basis of population, through indirect election in the former and direct election in the latter. The Council of States has been given some special functions regarding matters effecting States, while the House of the People has been given some special role regarding financial matters. States have been given some flexibility about having bicameral or unicameral legislatures.
The subjects of Legislative Power have been classified into three Lists—Union List (List I), State List (List II) and the Concurrent List (List III) in the Seventh Schedule of the Constitution. Parliament has the exclusive power to legislate in respect of matters in the Union List.
Similarly, exclusive power has been conferred on the State Legislatures with respect to matters in the State List. Parliament, and the State Legislatures, also, have power to make laws on any matters in the Concurrent List (Articles 245 and 246 read with the Seventh Schedule). Residuary powers of legislation have been vested in Parliament (Article 248 read with Entry 97, List I).
Normally, the executive powers of the Union and the States are co-extensive with their legislative powers. However, with respect to matters in the Concurrent List, the executive power remains with the States unless the Constitution, or Parliament by law expressly provides otherwise (Article 73 and 162). It is pertinent to note that the powers, both of the Union and the States are derived from the Constitution and, as such, are subject to the limitations provided therein.
The Constitution makes a distribution of taxing powers between the Union and the States. The fields of taxation have been enumerated either in the Union List or in the State List. There is no subject of taxation in the Concurrent List. The Constitution recognises that the financial resources of the States may not be adequate for discharging their onerous responsibilities. It, therefore, envisages certain tax revenues raised by the Union to be shared with the States. It provides not only for their distribution between the Union and the States but also inter se among the States on the recommendations of the Finance Commission (Articles 268 to 281).
It is noteworthy that, though the Constitution creates a dual polity based on divided governmental powers, this division is not watertight. It is flexible. The large concurrent sphere let alone, several entries in the State List have an inter-face with the Union List. Such Entries are either subject to certain Entries in the Union List or Concurrent List, or a law made by Parliament.
Introducing the draft Constitution, Dr. Ambedkar pointed out that when diversity created by division of authority in a dual Polity goes beyond a certain point it is capable of producing chaos. In this context, he emphasised:
“The Draft Constitution has sought to forge means and methods whereby India will have Federation and at the same time will have uniformity in all basic matters which are essential to maintain the unity of the country. The means adopted by the Draft Constitution are three:—
(1) a single judiciary;
(2) Uniformity in fundamental laws, civil and criminal; and
(3) a common All-India Civil Service to man important posts”.
Supremacy of Union Legislative Power
Where, with respect to a matter, there is irreconcilable conflict or overlapping as between the three Lists of the Seventh Schedule, the legislative power of the States must yield to that of the Union [Non-obstante clauses in article 246(2) and (3)]. A law made by a State legislature, repugnant to a law made by Parliament or an existing law applicable in that State, in regard to any matter enumerated in the Concurrent List, shall be void to the extent of repugnancy. [Article 254(1)].
However, if such a State law having been reserved for the consideration of President receives his assent, if it shall remain operative [clause (2) of Article 254]. Nevertheless, Parliament may amend or repeal such State law notwithstanding the President’s assent.
Every citizen in a State is subject to the operation of the laws of the Union and the States. Implementation of the Union laws could be entrusted to either a separate Union agency, if any, or to a State agency. The latter course has been followed in our Constitution in regard to a large number of Union Laws.
Articles 256 and 257 cast obligations on the States to comply with Union laws and the existing laws, and not to impede the exercise of the executive power of the Union. The Union is authorised to give such directions as may be necessary for this purpose.
If a State fails to comply with any valid executive direction of the Union Government, it shall be lawful (under Article 365) for the President to hold that a situation has arisen in which the government of a State cannot be carried on in accordance with the provisions of the Constitution and, therefore, warrants action under Article 356.
Entrustment of Union Functions to the States and vice versa
Article 258(1) enables the President to entrust with the consent of the Government of a State to that Government or its officers notwithstanding anything in the Constitution, functions in relation to any matter to which the executive power of the Union extends.
Under clause (2) of Article 258, Parliament may by law confer powers and impose duties on a State Government or its officers and authorities, notwithstanding that it relates to a matter with respect to which the legislature of the State has no power to make laws. The consent of the State Government is not a condition precedent for exercise of the power under this clause.
Article 258A provides for entrustment, by a State, of functions in relation to any matter in respect of which the executive power of the State extends with the consent of the Government of India to the latter or its officers.
Control of the Union Executive over State Legislation
The control of the Union Executive over State legislation reserved for the consideration of the President is another special feature of the Constitution. Article 200 provides that a Bill passed by a State Legislature shall be presented to the Governor who may assent, withhold his assent or return the same for reconsideration by the Legislature. However, if it is again passed by the State Legislature with or without amendment, he shall not withhold his assent.
The Governor may also reserve the Bill for consideration of the President (in effect the Union Council of Ministers) who may in turn signify his assent withhold the same or return it for re-consideration. However, in contrast to the position of the Governor, the President need not give his assent when such a Bill is returned with or without amendment after reconsideration by the Legislature of the State (Article 201).
Another unique feature of constitution is that it enables Parliament to legislate with respect to a matter in the State List if the Council of States by a two-thirds majority of the members present and voting, declares that it is necessary or expedient to do so in the national interest (Article 249). Such a resolution remains in force for a period not exceeding one year.
The Constitution also enables Parliament to legislate in respect of any matter in the State List, if resolutions to that effect are passed by the legislatures of two or more States. Any Act so passed may be adopted in like manner by the Legislatures of other States (Article 252).
Emergency Provisions
During the two World Wars, even the ‘classical’ federations functioned as ‘unitary’ governments. This was made possible by the widest interpretation put by the courts on the “Defence Power” vested in them by their Constitutions. The Indian Constitution makes express provisions in this regard in Articles, 352, 353, 354, 358 and 359.
The Constitution provides for proclamation by the President of a grave emergency whereby the security of India is threatened by war or external aggression or armed rebellion (Article 352). When such a Proclamation is in operation, the Union may assume for its organs all the legislative and executive powers of the State. Consent of the State Government is not a condition precedent to such assumption (Article 353).
A Proclamation of Emergency has the effect of converting the State List into Concurrent List; and therefore, if Parliament legislates on any subject in the State List, the State laws, to the extent of repugnancy, shall be null and void and the law made by Parliament shall prevail. The executive powers of the State also become subject to the Directions of the Union as to the manner in which these powers are to be exercised.
Another important feature of the Constitution (Article 355) is the express provision casting a duty on the Union to:
(a) protect every State against external aggression, and internal disturbance; and
(b) ensure that the government of every State is carried on in accordance with the provisions of the Constitution.
‘Public Order’ is the responsibility of the States. However, a State Government may require the assistance of the Union’s armed forces for this purpose. In case of a serious disorder amounting to ‘internal disturbance’, the Union may deploy its forces, to put it down.
If the President on receipt of a report from the Governor of a State, or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of the Constitution, he may by Proclamation assume to himself all or any of the functions of the State Government or all or any of the powers vested in or exercisable by the Governor or any authority in the State.
He may also declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament (Article 356). The purpose of Union intervention under this Article is to remedy a break-down of the Constitutional machinery in a State and to restore its functioning in accordance with the Constitution.
Yet another type of emergency, namely, Financial Emergency is envisaged by Article 360 of the Constitution. If the President is satisfied that a situation has arisen whereby the financial stability or credit of India or of any part of its territory is threatened, he may proclamation a financial emergency. When such an emergency is in operation, the executive authority of the Union extends to the giving of directions to any State for the purpose of securing observance of canons of financial propriety.
Inter-Dependence and Mutual Co-operation
The framers recognised that there was a category of subjects of common interest which could not be allocated exclusively either to the States or the Union. Nonetheless, uniformity in the main principles of the law on those subjects was considered essential in the national interest. They, therefore, included them in the Concurrent List.
Several entries in the Union List are expressly intertwined with certain items in the State List. These entries have been so designed that Parliament may, by making a declaration by law of public interest or national importance, assume to the extent so declared, jurisdiction to legislate on the connected matters in the State List. Examples of matters in this category are provided by entries 7, 23, 24, 27, 32, 52, 53, 54, 56, 62, 63, 64 and 67 of the Union List.
Such entries having an interface with the State List, in a way, disclose another field of ‘over-lapping’ responsibility. Overlap as between the Lists may also occur when aspects of the same subject are put in more than one List. For example, different aspects of ‘trade and commerce’ find mention in all the three Lists; namely, Entries 41 and 42 in List I, Entry 26 in List II and Entry 33 in List III.
From certain matters in List II a portion has been carved out and specially put in List I. Entries 13 and 32 of List II and Entries 22, 43, 44 and 91 of List I are instances of inter-linked matters cutting across inter-List boundaries. These criss-cross patterns of the Entries in the Lists indicate not only flexibility in the division of powers but also postulate co-operation between the Union and the States in their working.
There are inbuilt techniques, inter alia, in Articles 246 and 254 for resolving conflict and ensuring harmony and co-operation between the Union and the States in the exercise of their legislative powers in areas of over-lapping jurisdiction.
Forums for Co-ordination
The Constitution envisages forums for resolving issues and ensuring co-ordination of policy and action in the exercise of governmental functions by the Union and the States. Article 263 enables the President to establish an Inter-State Council for enquiring into and advising upon disputes between States and for investigating and discussing subjects in which some or all of the States, or the Union and one or more of the States have common interest and to make recommendations upon any such subject, particularly for better co-ordination of policy and action with respect to such subjects.
In the area of inter-State trade and commerce the Constitution contemplates the appointment of an authority for carrying out the purposes of Articles 301 to 304 (Article 307). Parliament has also been enabled by law to provide for the adjudication of disputes relating to waters of inter-State rivers or river valleys (Article 262). Inter-State River Water Disputes Act, 1956 provides for the constitution of Tribunals for adjudication of such disputes.
Role of the Judiciary
Article 131 confers exclusive original jurisdiction on the Supreme Court to decide suits between the Union and the States and the States inter se. Judges of the Supreme Court are appointed by the President (in effect, the Union Government) after consultation with the Chief Justice of India and such judges of the Supreme Court and the High Courts as the President may deem necessary. For every State or a group of States and a Union Territory, there is a High Court. Judges of a High Court are appointed by the President after consultation with the Chief Justice of the High Court, the Governor (in effect, the State Government) and the Chief Justice of India.
With a view to maintaining the constitutional division of powers, the Constitution authorises the Courts to review and pronounce upon the Constitutional vares of the legislative and executive actions of the Union and the States. The role of the judiciary in India, as in most federations, is one of guardian of the Constitution.
As Constitutional interpreter, the Courts in the older federations have played a significant role in balancing the claims of the federal power and the rights of the constituent units, but generally with weightage in favour of the former.
The Supreme Court of the United States and the High Court of Australia have, through expansive interpretation of their respective Constitutions, immensely increased the powers of their national governments with relative decline of those of the States.
In India, the comprehensive nature of the Constitution, the detailed enumeration of the powers of the Union and the States and the comparative ease with which the Constitution can be amended, limit the scope for bringing about, through judicial interpretation, any substantial alteration in the balance of Union-State relations.