Definition of Federalism
Federalism is a system of government in which powers have been divided between the centre and its constituent parts such as provinces or states. 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. The constituent units possess certain level of autonomy depending on type of federation. There are two types of federations:
(1) Holding together federation: In this form of federation, the powers are shared among various social groups/constituent parts to accomodate the diversity present in the society. In this type of federation, the powers are somewhat tilted towards the central authority. India, Spain, Belgium etc follow this form of federalism.
(2) Coming together federation: In this form of federation, the independent states come together to form a bigger unit and sacrifice some of their powers to be enjoyed by the central authority. The states here enjoy more autonomy as compared to the states in "holding together federation" system. Countries such as the USA, Switzerland, Australia follow this form of federalism.
The features of federal system include governments atleast at two levels, division of powers between different levels of the government, rigidity of constitution, independent judiciary, bicameralism, dual citizenship etc.
Indian Model of Federalism
The Government of India Act, 1919 introduced the concept of division of powers between the centre and the provincial legislatures by separating the central and provincial subjects. For the first time, it introduced bicameralism consisting of an Upper House and Lower House. The Constitution of does not mention India as a 'federation' but 'Union of states'. Below are the features of the federalism followed in India:
(1) Supremacy of the constitution: Constitution is the supreme law in India. The constitution is regarded as the guide in framing policies of the government. It lays out the ideas and philosphy of the constitution framers. It secures the right of the citizens.
(2) Written constitution: India has the lengthiest written constitution in the whole world. The provisions of the constitution of India have been drawn from various sources. Indian constitution is a blend of rigidity and flexibity.
(3) Vertical power sharing: The Constitution has divided the powers between the Union and the States. It helps in accomodating diversity of the country. It enables the state governments to take decision with flexibility according to the local needs. The powers in India have been, to some level, tilted towards the centre.
(4) Horizontal power sharing: India has three wings of the government- Legislature, Executive and Judiciary. Unlike USA, in India political executive is a part of the legislature.
(5) Bicameralism: The Parliament of India has two houses - Lok Sabha and Rajya Sabha. Most of the states in India do not have bicameral legislature.
(6) Independent judiciary: The Indian constitution provides for an independent and an integrated judicial system. The lower courts and the district courts are at the local level, high courts at the state level and the Supreme court is the highest court of the country. All the courts in India are subordinate to the Supreme Court.
Critical Appraisal of Indian Federalism
Features such as horizontal and vertical power sharing, independent judiciary, written constitution, supremacy of constitution and bicameralism strengthen India's federalism. Though, India has adopted federal form of government, but it does not follow certain principles of federalism. Our constitution has made centre more powerful which is in resemblance to the feature of unitary government. These features have been mentioned here:
(1) Not a rigid constitution: The constitution of India is a blend of rigidity and flexibility. Some of its provisions can be easily amended by the parliament and in some provisions ratification from the states is required. The procedure to amend the constitution is tough where the amendments seek to make changes in the arrangements of federalism. But, In any case, the procedure for passage of amendments is not as tough as in the USA.
(2) Centre more powerful: The constitution has made centre more powerful as the Union List has more subjects than the State List. Moreover, it has empowered the parliament to override the law made by a state legislature on the matters related to concurrent list. In some cases, the parliament is also empowered to make laws on state list subjects. The residuary power are vested in the centre which are not in line with the principle of federalism.
(3) Unequal representation of states in Upper House: The states in India do not have equal representation in Rajya Sabha. The representation is based on the population. For example-Uttar Pradesh, Rajasthan and Goa have 31, 10 and 1 representative respectively in the Rajya Sabha. Whereas, in a federal country, the representation of each state should be equal in Upper House.
(4) Executive is a part of legislature: The political executive of the centre and the states are the part of the parliament and the state legislature respectively. It betrays the principle of division of powers between the different organs of the government. However, checks and balances limit the power of the executive , the legislature and the judiciary.
(5) Lok Sabha more powerful than Rajya Sabha: The Lok Sabha is more powerful than the Rajya Sabha. Certain bills such as money bill can only be introduced in the Lok Sabha. A no-confidence motion against the government can only be initiated in the Lok Sabha. However, Rajya Sabha has been given certain powers which are not available to Lok Sabha such as introduction of a bill for new All-India Service. Unequal powers to two houses is not in line with the features of a federation.
(6) Emergency Powers: The centre has been provided with emergency powers. Three types of emergency are national emergency, state emergency (president's rule) and financial emergency. During emergency, the level of control of centre over the states increases. These provisions undermine the autonomy of states.
(7) Integrated judiciary: Judiciary in India, though indepent, is integrated. That means, India does not have separate judiciary at the centre and the state level.
(8) Single citizenship: The constitution provides for a single citizenship for the citizens of the country. It does not provide for state's citizenship to the citizens separately. The provision of single citizenship increases the feeling of nationality among the citizens which helps in maintaining unity in spite of cultural and regional diversity. It is also in line with some fundamental rights such as freedom of movement and residence in any part of the country.
(9) Appointment of governor: The governor of a state is appointed by the President. The state has no role in his appointment. He acts as an agent of the central government in the state.
(10) All India Services: Services including Indian Administrative Services (IAS), Indian Police Services (IPS) and Indian Forrest Services (IFS) are part of All India services. The centre, through these services, intrudes into the power of the states and control the executive functions of the states. Though immediate control of these services is in hand of state but unlimate powers lies with the centre. These services provide efficiency and uniformity in administration throughout the country.
(11) States not indestructible: Parliament may by law, form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State. It can also increase or diminish the area, alter the boundaary or change the name of state. Parliament require to pass such a bill following the procedure of an ordinary bill. That means, states in India are not indestructible entity.
(12) Veto over states bill: The governor of a state has the authority to reserve certain types of bills for the consideration of the president. The president enjoys the absolute veto on these bills. He can even reject the bill at the second instance i.e if the bill is sent after reconsideration by the state legislature. Most of the state legislatures have single house. So, the provision empowers the President to check any arbitrary decision by the state assembly. But, this provision is a deviation from the principles of federalism.
(13) Integrated Election Machinery: The Election Commission of India is responsible to conduct free and fair elections at both the centre and the state level. The Chairman and the members of the election commission are appointed by the president.
(14) Integrated Audit Machinery: The Comptroller and Auditor General is appointed by the President. However, he audits the account of both the centre and the states. There is no separate provision for an audit machinery at state level.
(15) Authority to remove key functionaries: The state legislature or government is not empowered to remove government functionaries even at state level such as Election Commissioner of a state, member or chairman of state public service commission, judges of the high court etc.
Important Supreme Court Decisions
State Of West Bengal vs Union Of India (1962)
The case involved the question of sovereignty of individual states in India.
The Supreme Court held that:
(i) the Indian Constitution does not provide for absolute federalism. It provides to decentralize the authority, so that the large territory of India can be governed efficiently.
(ii) the individual state has no power to amend the constitution which is vested only in the parliament.
(iii) the Constitution has divided powers between the centre and the states in such a way that the national policies and local governance could be executed by the centre and the individual states respectively
(iii) the Constitution provides supreme power to the judiciary to invalidate any law made by legislature if it violates the constitution
S. R. Bommai v. Union of India (1994)
In this case, the Supreme Court discussed about the provisions of Article 356 (President's Rule. It laid down the conditions under which it can be imposed, so that the misuse of Article 356 can be checked. The Supreme court laid down certain principles regarding Article 356:
(i) President has power to impose Article 356, but the decision is not immune from judicial review. The judiciary can examine whether the Proclamation was justified or it was imposed with malafide intention.
(ii) The Supreme Court or the High Court can strike down the proclamation if it is found to be malafide or based on irrelevant grounds.
(iii) It was held that the President has conditional power and not absolute power in regrads to imposition of Article 356.
(iv) It was held that the Article 356 is an extreme power and is to be used as a last resort in cases where it is manifest that there is an impasse and the constitutional machinery in a State has collapsed.
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