A Debate on Indian Federalism Concept of Federalism

Federalism is the theory or advocacy of federal political orders, where final authority is divided between sub-units and a center. Unlike a unitary state, sovereignty is constitutionally split between at least two territorial levels so that units at each level have final authority and can act independently of the others in some area [1] . As a theory of nation-building, federalism seeks to define state-society relationships in such a manner as to allow autonomy of identity of social groups to flourish in the constitutionally secured and mandated institutional and political space. The federal constitution recognizes the special cultural rights of the people, especially the minorities. Federalism tries to facilitate the sociopolitical cooperation between two sets of identities through various structural mechanisms of ‘shared rule’.

Is India a federal state?

There are provisions which don’t make Indian Constitution to be a federal in the sense of American Constitution. Though, it is said that within India, neither the Union nor the states enjoys [absolute] internal sovereignty due to the division of powers between the Union and the States in which both the Governments have plenary power within their assigned sphere, there exist certain provisions in the Constitution which are considered to be going against the principle of federalism. For example, article 200 of the constitution in which it is said that certain bills passed by state legislatures may be reserved by the governors for the consideration of the president of India. The another article which is considered to be a deviation from the principle of federalism is Articles 356, 352 and 360 which gives the power to the president to declare emergency, which can transform federal system into a unitary system; however the provision is meant for temporary and can be used only under certain exceptional situations under certain restrictions created through judicial intervention, there are many circumstances in which the central government has used this power to dissolve the state governments of the opposite parties and to remain in power at the centre.

There has been a change in the construction of the nature of Indian federalism, in the case of S.R. Bommai v. Union of India [2] , it has been held that “Democracy and federalism are essential features of our constitution and are part of its basic structure”.

Dr. Baba Saheb Ambedkar, in this case referred Article 356 of the Constitution of India as a dead letter of the Constitution but sadly with the help of Article 356 many State Governments in India are buried from their power.

In the constituent assembly debate it was suggested that Article 356 is liable to be abused for political purpose. In reply to this Dr. Ambedkar said that “such articles will never be called into operation and they would remain a dead letter. If at all they are brought into operation, I hope the President, who is endowed with these powers, will take proper precautions before actually suspending the administration of the provinces. I hope the first thing he will do would be to issue a mere warning to a province that has erred, that things were not happening in the way in which they were intended to happen in the Constitution. If that warning fails, the second thing for him to do will be to order an election allowing the people of the province to settle matters by themselves. It is only when these two remedies fail that he would resort to this article [3] .”

But this was never the case the Presidents power to issue the proclamation under Article 356 has been abused most of the time. So far the power under the provision has been used on more than 90 occasions and in almost all cases against governments run by political parties in opposition. This makes S. R. Bommai v. Union of India a Land Mark Judgement in which Supreme Court had discussed at length the provision of Article 356 and various issues associated with the said provisions [4] . The next another landmark case where the nature of the Indian Constitution questioned was State of Rajasthan V. Union of India [5] . In this case, Chief Justice Beg, while interpreting Article 356, observed:

“Our difficulty is that the language of Article 356 is so wide and loose that to circumscribe and confine it within a strait-jacket will not be just interpreting or construing it but will be Constitution-making legislation which, again, does not, strictly speaking, lie in our domain.”

The debate whether India has a ‘Federal Constitution’ and ‘Federal Government’ has been grappling the Apex court in India because of the theoretical label given to the Constitution of India, namely, federal, quasi-federal, unitary. The first significant case where this issue was discussed at length by the apex Court was State of West Bengal V. Union of India [6] . The main issue involved in this case was the exercise of sovereign powers by the Indian states.

Status of Judicial Federalism in India

What is required for a federation is that there should be a division of power among the different co-ordinate and independent authorities/component units of a federation. When we analyse federalism in judiciary, then the same division of power should also be reflected in the judicial set-up or between the federal and the provincial courts. It should be demarcation in the fields of working of the federal and provincial/state courts.

But in India, Supreme Court is the highest court of the land as established by Part V, Chapter IV of the Constitution of India. . It is the ultimate appeal in all criminal and civil matters and the final interpreter of the law of the land, and thus helps in maintaining a uniformity of law throughout the country.

Beginning with the Article 141 of the Indian Constitution which plays most determining role towards this, enacts that the law declared by the Supreme Court shall be binding on ‘all courts’ in the territory of India. With this article gets attached a value of superiority with the Supreme Court that its say has to be followed as a mandate by all the other courts of the country.

Next let’s come to Article 131, where Supreme Court has the exclusive original jurisdiction

Regarding appellate jurisdiction, the Supreme Court has appellate jurisdiction as provided by Art. 132 to 134A & Art. 136. Provides the Supreme Court with appellate jurisdiction.

“Appellate jurisdiction is the jurisdiction of a superior court to review the final judgment, order, or decree of an inferior court on the record made in the inferior tribunal & to affirm, reverse, dismiss, or modify that decision.”

And finally, Article 144 which provides that all authorities civil and judicial in the territory of India shall act in the aid of the Supreme Court.

This entire constitutional scheme shows that more importance need be given to the Supreme Court, which is the highest court of the land. On the basis of all these things, entire judicial set- up is seems to be biased towards the one Supreme Court. Since in India, the freedom to cases is such that every case is capable of reaching the Supreme Court, the ‘federalism’ principle fades away.

Conclusion

‘Federalism’ is one of those good echo words that evoke a positive response toward many concepts as democracy, progress, constitution, etc. Federalism tries to facilitate the sociopolitical cooperation between two sets of identities through various structural mechanisms of ‘shared rule’ [7] . But because of the above reasons, center- state relations and the state autonomy have become the cardinal issues of the Indian federalism. The union government appointed Sarkaria Commission in 1983 to examine and review the working of the Indian Federalism, but this Commission doesn’t make any useful recommendations for structuring the Indian federalism in a proper manner. The Union government also took in a very easy approach some of the recommendations made by this commission. This shows that even though our constitution is said to be a federal, but this overemphasis on the power of the federal government makes incapable of dealing effectively with socioeconomic challenges and strengthening national unity. Hence, it is appropriate to restructure Indian Federalism to make it more effective and promote center – state relation.