Académique Documents
Professionnel Documents
Culture Documents
CHAPTER-1
INTRODUCTION
1.1 AIMS AND OBJECTIVE OF REASEARCH
1.2 RATIONAL AND SIGNIFICANCE OF STUDY
1.3 HYPOTHESIS
1.4 STATEMENT OF PROBLEM
CHAPTERISATION
CHAPTER-2 : MEANING AND CONCEPTUALIZATION OF
FEDERALISM
2.1 Meaning of Federalism
2.2 Definition of Federalism
2.3 Essential Features of Federalism
2.4 Traditional and Modern Approach
CONSTRUCTIONAL PROSPECTIVE
CHAPTER-3 :NATURE OF INDIAN FEDERAL SYSTEM
5.1 Indian Constitution- federal or unitary
5.2 Distinctive features- co operative federalism of India
CHAPTER-5
Federalism envisaged by the Government of India Act, 1935
CHAPTER-6 : CONSTITUTIONAL PROVISIONS-
MODIFICATION OF FEDERAL PRINCIPLE IN INDIAN
CONSTITUTION
6.1 Parliament powers to form New States and Alter boundaries of
existing States(Art.2&3)
6.2 Parliament's power to make law on State matters
6.3 Administrative relations between Union and States
6.4 Distribution of Legislative Power between the Union and the States
(Art.246)
6.5 residuary powers of Legislation (Art.248)
6.6 Emergency provisions - Provision on federalism, Effect of Emergency
power.
CHAPTER-7
JUDICIAL INTERPRETATION
LIST OF SOURCES
List of books referred
List of website referred
List of cases referred
CHAPTER-1
INTRODUCTION
principle of Federalism.
To examine the character of Indian federal system and whether or not the
There has been a lot of insoluble controversy as to the question whether Indian
system but with a capacity to work as unitary when so required. As the new trend in all
powers to the centre, the framers of the Indian Constitution have also sought to provide
Constitution of India is neither purely federal nor purely unitary but a combination of
both. According to the need and demands of circumstances and to meet the aspiration
of the people, there are some provisions in the Indian Constitution which deviates
from truly federal character. It is like a chameleon which can change colour according
to environment. Much will depend upon the role of the President, regional and
national parties, the strength of the political party in power at the Centre and its
backing in States.
The constitution of India contains various provisions for inter-state coordination and
cooperation. Cooperation and coordination between the Union and States have been
considered necessary for the development of the country. The Constitution of India,
What are the basic principles of Federalism and to what extent do they
Whether the federal system in India is same as in U.S.A, Canada and Australia?
Cooperative Federalism?
1.5 SCOPE OF WORK
The Indian Constitution cannot be called "federal" or "unitary" in the ideal sense of
the terms. The British parliament has set up a federal system in India by the
Article 1(1) of the Constitution of India says that, "India that is Bharat, shall be a
Union of States." The Constitution, thus postulated India as a Union of (States and
consequently, the existence of federal structure of governance for this Union of States
The Constitution makes a distribution of powers between the Union and the States, the
jurisdiction of each being demarcated by the Union, State and Concurrent lists. In case
of a conflict between the two legislatures over a matter in the Concurrent list the will
government nor the State Governments can override or contravene the provisions of
Constitution - is also present in the Indian Federation. The Supreme Court can declare
any law passed by the Union Parliament or a State legislature ultra vires if it
The Constitution of India contains various provisions for inter- state coordination and
Methodology can be: "the analysis of the principles of methods, rules and postulates
employed by a discipline "the systematic study of the methods that are, can be, or
have been applied within a discipline", "a particular procedure or set of procedures"..
This research is based on the Doctrinal research. Doctrinal research means a research
that has been carried out of legal proposition or propositions by way of analysing the
ordering and systematizing legal propositions and study of legal institution through
CHAPTERISATION
covenant with a governing representative head. The term "federalism" is also used to
between a central governing authority and constituent political units (like states or
United States, advocates of a very small federal government and stronger state
governments are those that generally favor confederation, often related to early "anti-
Argentina, Australia, Brazill, India and Malaysia among others, are also federal
countries. Modem Constitution and Government are classified into Unitary and
federal on the basis of concentration or distribution of powers and the nature of the
relationship between the central and the regional authorities. In a Unitary constitution,
written constitution, which defines and determines the powers of the two sets of
A citizen of federal country thus becomes subject to the decree of two governments-
Central and the regional. The Regional Government is called the State Government as
Definitions:
Following are some of the definitions which help to understand and appreciate the
1. Prof. K. C. Wheare
the general and regional governments are each, within a sphere, coordinate
2. Montesquieu
3. Dicey
Thus in a federal Constitution both the Central and regional governments are co-
ordinate and independent in their spheres and not subordinate to one another.
The Constitution of U.S.A. which establishes dual form of government, is a
of a federal state. Federalism originates from ancient Greece. Broadly speaking, there
are two approaches to understand the federal system which are as follows:-
1. Traditional approach
Traditional approach place main emphasis on the existence of two independent and
coordinate authorities and Joint plenary powers within the jurisdiction set apart by the
Constitution. According to Prof. K.C. Wheare, the federal principle is the method of
dividing powers so that the general and the regional government are each within a
sphere co-ordinate and independent. On this basis Prof. Wheare finds that there are
only four federations in the world i.e. U.S.A, Canada, Australia and Switzerland. He
puts other federations (e.g. India) in the category of quasi federations. But this
economic forces operating in the modern era which have not left unmolded even the
tests it is not possible to find a single example of a true federation in the world.
2. Modern approach
States and the National Government are too idealistic to be followed in the presence
distributes between the national and state governments that there is scope for constant
requirement of both time and place. Dicey has defined a federal state, as "a political
Federalism
characteristics:-
a. Duality of Government:
While in a unitary state there is only one government i.e. National Government or
Central Government. But in a federal state, there are two governments the federal
or the central governments and the government of each constituent's state. This
b. Distribution of powers:
The distribution of powers between the centre and the states is the most
important characteristics, rather the core of any federal system. In reality, the
whole federal system revolves around this basic core of distribution of powers.
governmental functions and powers between the centre and the regions.
c. Supremacy of the Constitution:
written Constitution.
d. Authority of Courts:
authority of courts, which must have final power to interpret the Constitution
AUSTRALIA
The term federalism is also used to describe a system of the government in which
constituent political units (like states or provinces). Federalism is the system in which
the power to govern is shared between the national & state governments, creating
U.S.A
divided between a central government and the government of each state. Before the
U.S. Constitution was written, each American state was essentially sovereign. The
represents and unite the states, but did not supplant state governments. This federal
arrangement, by which the central federal government exercises delegated power over
some issues and the state governments, exercise power over other issues, is one of the
of power between the national, and state (and local) governments. Our power-sharing
England and France, under which national government maintains total power.
While each of the 50 states has its own constitution, all provisions of state constitutions
must comply with the U.S. Constitution. For example, a state constitution cannot deny
accused criminals the right to a trial by jury, as assured by the U.S. Constitution's 6th
Amendment. Under the U.S. Constitution, both the national and state governments are
The U.S.A Constitution has been regarded as the 'epitome' of the classic federalism.
America started on its Federal carrier with a weak-centre & emphasis on State's
rights. The reason was that the U.S constitution came into being as a result of a
voluntary compact among the preexisting states which conceded rather limited-
Also, the US- constitution was the product of the "laissez-Faire" era which signified
In course of time, however things have changed. The powers of the centre have
expanded since 1787 and correspondingly the powers of the states have shrunk.
This has been achieved without any explicit-amendment of the constitution but
Now in present context, the states in the U.S.A are co-ordinate with the central
government, as there definitely-weaker vis-a-vis the centre. The process has been
aided by such factors as tense international situations, wars, vat economic and
however the privy-council, by its process of interpretation weakened the centre and
raises the provinces. This was the result of assertion of bilinguism and biculturism by
On the whole, therefore, the provinces in Canada have greater freedom of action than
the other units in other federations and this has at times been inconvenient and
embarrassing to the centre, primarily in the area of foreign -relations and economic-
matters.
federal state. The other difficulty is that it is habitual with scholars on the subject to start
with the model of the United States, the oldest (1787) of all federal constitution in the
world, and to exclude any system that does not conform to that model from the
nomenclature of federation. But numerous countries in the world have, since 1787,
adopted Constitutions having federal features and, if the strict historical standard of the
United States applied to all these later Constitutions from the federal class, for according
unitary or federal. If therefore, a Constitution partakes of some features of both types, the
unitary or federal, although it may have subsidiary variations. A liberal attitude towards
the question of federalism is, therefore, inevitable particularly in view of the fact that
whether a state is unitary or federal is one of degrees and the answer will depend upon
federal government includes the Parliament of Canada and the prime minister, while the
provincial governments include each province's legislative assembly and premier. The
two levels are linked together by the Canadian Crown, from which all derive their
sovereignty and authority, as well as a court system that rules of jurisdiction between the
levels. The federal parliament and the legislative assemblies of the provinces are each
independent of one another with respect to their areas of legislative authority. A few
subjects are shared, such as agriculture and immigration, but most are either entirely
The three territories are creations of the Federal Parliament and exercise delegated
power and not sovereign power. The United Kingdom did not follow this model when
Confederation was realized, making Canada different from its mother country (and
similar to its southern neighbor, the United States) in this respect. The governments of
cities and regions within provinces are creations of the provincial governments. The
federal nature of Canadian Constitution was a reaction to the colonial diversities in the
Maritimes and the Province of Canada, in particular the strong distinction between the
inhabitants in Upper Canada (Ontario) and the Maritimes. Federalism was considered
essential to the co-existence of the French and English communities. John A.
Macdonald, who became the first Prime Minister of Canada, had at first opposed a
Macdonald later supported the federalist system after seeing the carnage of the
American Civil War. He sought to avoid the same violent conflicts by maintaining a
The division of powers between the federal and provincial governments was initially
outlined in the British North America Act, 1867 (now the Constitution Act, 1867),
which, with amendments (in the British North America Acts and the Constitution Act,
1982), form the Constitution of Canada. Federalism is one of the three pillars of the
constitutional order, along with responsible government and the Canadian Charter of
AUSTRALIA
Australia were rejected, some of the federal features of the American system were
used. These features include a high degree of autonomy for the government
institutions of the federation and the states, a division of power between these
Australia successfully adapted the American concept of state and federal governments
in these appointments. This gives each state a direct link with the Crown that
completely bypasses Canberra, and can be contrasted with the Canadian system where
the federal Prime Minister, were once seen as representatives of the Canadian federal
Other aspects of the Constitution of Australia are associated with the federal principle.
Original states have equal representation in the senate. Although this is not an
essential element of federation, it reflects the view that states (colonies) should be
equal in status. Since federation the balance of power between levels of government
has shifted from the founding fathers vision. The shift has transferred power from
the Commonwealth and the States were both financially and politically independent
1920s and 1930s in response to both internal and external pressures. Elements of
economic management and budgetary policies during the Great Depression; and the
In India, the historical-process to create the federal-system was different. For long,
before 1935, British India has been administered on a unitary basis. There existed a
unitary-system. But after the end of British-colonies, the unitary system was replaced
1935 system.
The past history of India establishes that in the absence of a strong Central-
Government, the country soon disintegrates. This belief was strengthened by the
Owing to its vastness of territory and variety of people, India could not be governed
India, such a large country with diverse-cultures, religions, languages, tribal and
ethnic differences and even marginal racial variations, with historical, geographical
and political- divergences, cannot bear true faith with democracy and collective
By the act of 1935, the British Parliament set up a federal system in the same manner as it
had done in the case of Canada, by creating autonomous units and combining them into a
federation by one and the same Act. All powers hitherto exercised in India were
resumed by the crown and redistributed between the federations and the Provinces by
a direct grant. Under this system, the provinces derived their authority directly from
the Crown and exercised Legislative and executive powers, broadly free from central
control, within a define sphere. Nevertheless, the Centre regained control through the
judgement and discretion in certain matters, and the power of the Centre to give
The peculiarity of thus converting a unitary system into a federal one can be best
explained in the words of the Joint parliamentary Committee on Indian Reforms: "Of
course in thus converting a unitary state into a federation we should be taking a step
for which there is no exact historical precedent. Federation have commonly resulted
organism. At the present moment the British Indian Provinces are not even
autonomous for they are subject to both administrative and legislative control of the
Government and such authority as they exercise has been in the main devolved upon
are faced with the necessity of creating autonomous units and combining them into a
It is well worth remembering the peculiarity of the origin of the federal system in India.
Neither before nor under the Act of 1935, were the Provinces in any sense 'Sovereign'
States like the States of American Union. The Constitution, too, has been framed by the
people of India assembled in the Constituent Assembly, and the Union of India cannot
be said to be the result of any compact or agreement between the autonomous States. So
far as the Provinces are concerned, the progress had been from a unitary to a federal
organization, but even then, this has happened not because the Provinces desired to
become autonomous units under a federal union, as in Canada. The Provinces, as just
seen, had been artificially made autonomous, within a defined sphere, by the Government
of India Act, 1935. What the makers of the Constitution did was to associate the Indian
States with these autonomous Provinces into a federal Union, which the Indian States had
refused to accede to, in 1935. Some amount of homogeneity of the federating units is a
condition for their desire to form a federal union. But in India, the position has been
different. From the earliest time, the Indian States had a separate political entity, and there
was little that was common between them and the Provinces which constituted the rest of
India. Even under the Federal scheme of 1935 the Provinces and the India States were
treated differently; the accession of the Indian States to the system was voluntary while it
was compulsory for the provinces, and the powers exercisable by the Federation over the
Indian States were also to be defined by the Instruments of Accession. It is because it was
optional with the Rulers of the Indian States that they refused to join the federal system of
1935. They lacked 'the federal sentiments' (Dicey), that is, the desire to form a federal
Union with the rest of India. But, as already pointed out, the political situation changed
with the lapse of paramountcy of the British Crown as a result of which most the Indian
States acceded to the Dominion of India on the eve of the Independence of India.
The credit of the makers of the Constitution, therefore, lies not so much in bringing the
Indian States under the federal system but in placing them, as much as possible, on the
same footing as the other units of the federation, under the same Constitution. In short,
the survivors of the Old Indian States were, with the minor exceptions, placed under
the same political system of the old provinces. The Integration of the Units of the two
States in Part A and Part B and replacing them by one Category of States, by the
There is difference of opinion among the constitutional jurists about the nature of the
Indian constitution. One view is that it is a quasi federal Constitution and has more
Article 1(1) of our Constitutions says " India, that is Bharat, shall be a Union of States."
While submitting the Draft Constitution, Dr. Ambedkar, the Chairman of the Drafting
Committee, stated that "although its Constitution may be federal in structure", the
Committee had used the term "Union" because of certain advantages, these
viz., (a) that the Indian federation is not the result of an agreement by an Units, and
(b) that the component units have no freedom to secede from its.
The word "Union" does not indicate any particular type of federation, in as much as it
is used also in the Preamble of the Constitution of the United States- the model of
federation; in the Preamble of the British North America Act (which according to
Lord Haldane, did not create a true federation at all); in the Preamble to the Union of
South Africa Act. 1909, which patently set up a unitary Constitution; and even in the
Art. 72] to each Republic, i.e, unit of the Union. We have, therefore, to examine the
provisions of the Constitution itself, apart from the label given to it by its draftsman,
particularly in view of the criticisms leveled against its federal claim by some foreign
scholars.
The difficulty in any treatment of federalism is that there is no agreed definition of a
federal State. The other difficulty is that it is habitual with the scholars on the subject
to start with the model of the United States, the oldest (1787) of all federal
Constitution in the world, and to exclude any system that conform to that model from
the nomenclature of that federation. But numerous countries in the world have, since
1787, adopted Constitutions having federal features and, if the strict historical
standard of the United States be applied to all these later Constitutions, few will stand
the test of Federalism save perhaps Switzerland and Australia. Nothings is, however,
gained by excluding so may recent Constitutions from the federal class, for, according
unitary or federal. If therefore, a Constitution partakes some features of both types, the
towards the questions of federalism is, therefore, inevitable particularly in view of the
fact that recent experiment in the world of Constitution making are departing more
and more from the pure type of either unitary or a federal system. The question
whether a State is federal or unitary is one of degrees and the answer will depend
Federal features:
the Indian Constitution. Some of the federal features of the Indian Constitution can be
summarized as follows:
1. Existence of Dual Government- There can be no federation unless there are
two sets of governments - one at the centre and the other at regional level. In
India, we have the Government of the Union of India at the Centre and
does not make a constitution federal because this can be possible even in a
powers between central government and regional units is essential and this
enumerated the list I, Union has exclusive power to legislate and in respect of
matters enumerated in List II, the States have exclusive legislative power. List
III is concurrent list. In respect of matters enumerated in this list, both Union
and States have power to legislate, The Union and States have executive
powers also on matters in respect of which they have power to legislate. Thus,
constitution is not treated as supreme and governments are allowed to violate it.
Supreme Court has held that in India, Constitution not the Parliament, is supreme
to interpret the constitution and to resolve the disputes between central and
regional governments The authority need not necessarily be the court, but
generally courts are entrusted with this job. Under the Indian Constitution
power to interpret the Constitution rests with the courts and for ensuring
respect of their salaries and tenure of service. The judges -of the Supreme
Court and the High Court’s cannot be removed from service except in
accordance with the provisional of Article 124 (4), nor can their salaries or
units. Both must participate in the process of amendment, Under Article 368,
Parliament alone even by special majority. At least half of the States must
also ratify.
Thus, all the essential elements of federal constitution are in principle
embodied in our constitution. Besides these, the Upper House to the centre is
Some have called it as unitary with certain federal features Granville Austin
Constitution is not federal. But the issue involved in the case was
narrow one, that is, whether Union of India could acquire landed
federal Constitution.
In Keshavananda v. State of Kerala , some of the Judges of the
may have, its operations are certainly judged both by the contents of
powers which a number of provisions carry with them and the use that
has been made of them, more unitary than federal In Satpal v. State of
Punjab, the Supreme court again held that ours is a Constitution where
In Pradeep Jain v. Union of India", also the Supreme Court held that
has undoubtly certain federal features but is still not a federal State. It
has only one citizenship, that is, citizenship of India and a unified
Unitary features :
The following unitary features are relied upon by those who challenge the federal
West Bengal v. Union of India2 and Pradeep Jain v. Union of India , this
aspect was given undue emphasis. The process of formation does not affect
the federal nature. There are many federations which came into existence not
existing State. Between Indian States and former provinces, there has been
integration but some bigger Provinces were divide to form a new State.
Jain v Union of India'5, this aspect was also emphasized. In our country
the Indian Constitution itself. States do not have separate constitutions as there
is no provision for dual citizenship, but these matters are incidents of history
appointed by the President and holds office during his pleasure. This by itself
does not affect federal system very much, because in almost all matter, he has
to act on the advice of his ministers but his position is liable to be misused by
of Jharkhand recently.
powers between the Union and the States is on the basis of division of
Legislative powers. This is provided in Articles 73 (1) and 162, but the
division is not like watertight compartments. The laws made by the Union
Union list, Union may delegate its functions to States. Similarly, under
iv. Executive Direction - Article 256 says that the executive power of a state
Parliament and that executive power of the Union may extend to giving of
directions to the states. Article 257 also provides for executive directions by
prejudice the exercise of the executive power of the Union. If the State fails to
carry out directions, the penalty is provided in Article 365. The President may
Article 356.
252- Under Article 249, Parliament can legislate on any matter enumerated
members present and voting that it is in the national interest. Under Article
those states or in any other State which adopts it. In fact, these provisions
under Article 249 is also indirectly with the consent of the States, because
to make Laws for the whole or part of the country. This provision is
necessary. It is the duty of the Union to maintain relations with the foreign
(iii)Inconsistency of Union and State laws- Article 254 provides that if any law
Parliament within its authority or to any provision of existing law with respect
to matters in Concurrent List, then the Parliamentary law or the existing law,
as the case may be, will prevail, It is immaterial whether Parliamentary law is
either give his assent or withhold it and require the Governor to send it
Education Bill, however, the Bill was returned for suitable amendments
but before sending back, opinion of the Supreme Court was obtained.
5. The Judiciary-
(i) Unified Judicial system- United States of America, Australia and some
other federations have double judicial system- federal courts and state
courts, but our constitution provides for unified judicial system like that of
Canada.
(ii) Appointment of Judges- Appointments of judges of the High Courts and the
Supreme Court are made by the President, who is also the executive head of
Court
can be made by the President except in conformity with the final opinion
.of the Chief Justice of India. This view has been affirmed by the Court in
control over State activities. But this is not peculiar in India. This system is now
directions as to how the executive power of the State is to be exercised, and the
President may modify financial arrangements between Union and States. In cases
and all money and financial Bills of the State may be required to be reserved for
control to the Centre over States but this is a temporary phase for abnormal
war and emergencies wider powers are conceded to the centre to cope with the
situation.
new State, increase of diminish the area of any State ad later its name and
are given in the provision, yet if the Centre is adamant the States cannot
It is true that India was never intended to be a federation in the strict sense of
the term The framers were aware of the hardships that were faced by some
important federations during wars and even in peace time in carrying out
not the result of an agreement by States as such no State has right to secede from
it, that the country is one integral whole and its people, single people living under
a single imperium derived from a single source. While adopting federal system
generally, the framers were keen to preserve the unity of the country and therefore
they included certain provisions, which are opposed to federal principle, to meet
federalism. No matter what the circumstances, it cannot change its form and
shape. It can never be unitary. On the other hand, the draft constitution (of
The Constitutional system of India is basically federal, but of course, with striking
Unitary features.
1. There are many distinctive features of the Indian federal system. In United
and also of the State in which he lives. In India, there is a dual polity but
single citizenship. To quote, " there is only one citizenship for the whole of
2. Every State in the United States has the right to make or amend its own
Constitution. The Federal Government has not the power to change the
Constitution of any State. In India, no State has the power to amend its own
Constitution although the Federal Government has the power to amend the
Union and of the States is single frame from which neither can get out and
Indian Parliament can make laws with regard to them. In United States, the
4. Rigidity and legalism are considered to be the two evils of a federal polity. A
Constitution have adopted certain methods to avoid the evils of rigidity and
provisions have been made which are to remain in force until Parliament
provides otherwise by law. Power has also been given to the Parliament to
when a subject assumes national importance. The same is the case when an
State with the consent of the State or State concerned. Greater facility is given
for the amendment of the Constitution than that given in foreign countries.
can it change its form and shape. It can never be unitary. On the other hand,
6. The Indian federation maintains unity in all basic matters. To quote Dr.
Ambedkar, " The Federation being a dual polity based on divided authority with
separate legislative, executive and judicial powers for each of the two polities is
local needs and circumstances. But this diversity when it goes beyond a
certain point, is capable of producing chaos and has produced chaos in many
federal States".
7. The Indian Constitution does not set up the States as rivals to one another or to
the Union. Each is intended to work harmoniously in its own sphere without
necessary in the public interest. It has a nice balance of jurisdictions which has
worked out successfully so far and it is hopes that it will continue to work so
8. The Supreme Court of India and the High Court form a single integrated
judiciary having jurisdiction over all cases arising under various laws- Union,
of civil and criminal law are placed in the Concurrent List. To maintain
India services recruited on all India basis which shall be common to the Union
a) In case of inconsistency between Union and State laws, the Union laws shall
prevail.
b) Laws passed by the State may be reserved for considerations of the President
them cannot be even introduced or moved in the State Legislature without the
system is federal or not. In the Indian context, it can be said that Indian Constitution is
basically federal with striking unitary features and so has been the attitude of law
courts in India while interpreting the structure of the Indian Constitution. However,
many States are not satisfied with Centre-State relationship and have requested for a
However, the States, especially where the opposition parties or regional parties are in
majority remain unsatisfied with the present set up of distribution of powers between
the Centre and the State and force the Central Government to appoint Sarkaria
Commission in 1983 to review the distribution of powers between the Centre and the
State within the purview of the Constitution of India. Although Sakaria Commission
had submitted its report in 1987, the main recommendations of this Commission are
yet to be implemented.
CHAPTER-6
6.1 Parliament power to form New-States and alter boundaries of existing states:
(Art 2&3)
suck terms & conditions as it thinks fit. Such terms & conditions must, however, be
of any state or alter the boundaries of any state or alter the name of any state."
The very existence of the State thus depends upon the "Sweet-will of the Union
Government.
explained on historical-basis:
The Government, of India Act, 1935, which had for the first-time introduced the
although they had no organic-roots in the past. The makers of the present constitution
were aware of peculiar- condition under which & the reasons for which the states
were formed & their boundaries were defined & so they deliberately adopted the
provisions in Art. 3 with a view to meeting the possibility of the redistribution of the
Article 249: Provides that, "if the upper House (Council of states) of the Union-
parliament passes a resolution, supported by not less than 2/3 rd of the members
present & voting, that it is necessary in the 'National-Interest' that parliament should
make laws with respect to any matter enumerated in the state-list, it would be
competent for parliament to make laws for the states with respect to that matter to be
operative for such period not exceeding 1 year, as may be specified therein.
In normal-course this cannot be done unless the Constitution is amended. This power
by 2/3rd majority of the members present. Thus, in effect by this device the
Article 250: Provides that, "parliament shall have the power to make laws for the
whole or any part of the territory of India with respect to any matters enumerated in
Article 251: Provides that Parliament have the power to make laws on State-matters
under the Article 249 (in national-interest) and Article 250 (under Proclamation of
emergency). In both cases the power of the state legislature to deal with matters
falling in the state list is not abrogated. The Legislature of a state can thus make a law
will prevail.
Article 253: Provides that" parliament has power to make any law for the whole or any
part of the territory of India for implementing any treaty, agreement or convention with
any other country or countries or any decision made at any international conference."
Questions are also being raised about the legal-tradition in our country under which
treaties become operative & binding without prior participation of parliament in their
making. They can be entered into & implemented by the Union executive in exercise
Article 256: Provides that, it shall be the duty of the state to exercise its executive-
powers so as to ensure that due-effect is given with in state to every Act of Parliament
& to every existing law which apply in the state. This is a constitutional-duty of every
regarding the duly which is imposed upon it by this article. Article 257: Provides the
state which fails to comply with them is indented to "ensure-harmony" btw the
Union & the state. If a state exercises its executive authority as to impede or
against the central government & hence to "maintain the integrity of the country".
6.4 Distribution of Legislative-power between the Union & the states (Article 246)
The Constitution in making the distribution of legislative-powers that the union & the
The parliament has exclusive powers of legislation with respect to 97 items in List I
The State Legislatures have exclusive-powers with respect to 66 items in List II Both
Parliament & state Legislatures can make laws in respect to 47 items in List III.
Parliament has exclusive power to make any law with respect to any matter not
enumerated in the concurrent. List or State-List. Such power shall include the power
of making any law imposing a tax not mentioned in either of those lists.
This Art. Assigns "Residuary-powers" of legislation exclusively to parliament Entry
97 of List I, Schedule VII to the constitution read with art. 246(i) also lays down thp.t
parliament has exclusive-power to make laws with respect to any mater not given in
List II or List III, including any tax not mentioned in either of those lists.
raise such situations that a subject of legislation may not squarely fall in any specific-
In such a situation parliament would have power to legislate on the subject in the
exercise of residuary-powers under this Article & Under Article 246 (1) read with
Entry of List I.
6.6 Emergency-provisions
Article. 352 : Provides that "if the president is satisfied that a gave emergency exists
where by the security of India or any part of the territory is threatened, weather by
When the proclamation of emergency is made under Article. 352, the normal
distribution of power between the centre & the states undergo a vital-change.
Parliament is empowered to make laws with respect to any matter enumerated in the
state- List.
The centre is empowered to give directions to any state as to manner in which the
Further, the president may be order, direct that all or any of the provisions of Article
278 to 279 relating to distribution of revenue between the centre & the state shall take
Article 356: Provides that, " if the president, who is the head of the Union-executive
is satisfied that the Government, of a State cannot be carried on in accordance with the
provisions of the constitution he can issue a Proclamation to that effect. He can then
assume all the functions of the government of the state, including the powers of the
Governor."
The only exception is that he cannot assume any of the powers exercisable by the
High Court.
Article 360: Provides that, "if the President is satisfied that a situation has arisen which
threatens the 'Financial stability' or credit of India or any of its units, he can declare a
including order for the reduction of salaries and allowances of public-servants belonging
to union and the states. All Money-bills passed by the state-legislatures during the period
The emergency-provisions which come into operation only on the happening of the
merit of the constitution that it visualizes the contingencies when the strict application
of the Federal- principle might destroy the basic assumptions on which our
empowers the federal government to intervene on its own initiatives if the external-
JUDICIAL INTREPRETATION
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
1. State of West Bengal V. Union of India19: The main issue involved in this case
was the exercise of sovereign powers by the Indian states. The legislative competence
of the Parliament to enact a law for compulsory acquisition by the Union of land and
other properties vested in or owned by the state and the sovereign authority of states
as distinct entities was also examined. The apex court held that the Indian
authority was decentralized this was mainly due to the arduous task of governing the
large territory. The court outlined the characteristics, which highlight the fact that the
is the supreme document, which governs all the states. Secondly, the Constitution is
liable to be altered by the Union Parliament alone and the units of the country i.e. the
States have no power to alter it. Thirdly, the distribution of powers is to facilitate local
governance by the states and national policies to be decided by the Centre. Lastly, as
against a federal Constitution, which contains internal checks and balances, the Indian
Constitution renders supreme power upon the courts to invalidate any action violative
of the Constitution. The Supreme Court further held that both the legislative and
executive power of the States are subject to the respective supreme powers of the
Union. Legal sovereignty of the Indian nation is vested in the people of India. The
political sovereignty is distributed between the Union and the States with greater
weight age in favor of the Union. Another reason which militates against the theory of
the supremacy of States is that there is no dual citizenship in India. Thus, the learned
judges concluded that the structure of the Indian Union as provided by the
Constitution one is centralized, with the States occupying a secondary position vis-a-
vis the Centre, hence the Centre possessed the requisite powers to acquire properties
belonging to States.
As against this opinion, was the judgment rendered by Justice Subba Rao, the great
champion of State rights. Justice Subba Rao was of the opinion that under the scheme of
the Indian Constitution, sovereign powers are distributed between the Union and the
States within their respective spheres. As the legislative field of the union is much wider
than that of the State legislative assemblies, the laws passed by the Parliament prevail
over the State laws in case of any conflict. In a few cases of legislation where inter-State
disputes are involved, sanction of the President is made mandatory for the validity of
those laws. Further, every State has its judiciary with the State High Court at the apex.
This, in the opinion of the learned judge does not affect the federal principle. He gives the
parallel of Australia, where appeals against certain decisions of the High Courts of the
Commonwealth of Australia lie with the Privy Council. Thus the Indian federation cannot
be negated on this account. In financial matters the Union has more resources at its
disposal as compared to the states. Thus, the Union being in charge of the purse strings,
can always, persuade the States to abide by its advice. The powers vested in the union in
The power granted to the Union to alter the boundaries of the States is also an
executive and legislative, the States are supreme. The minority view expressed by
Justice Subba Rao has consistency with the federal scheme under the Indian
Constitution. The Indian Constitution accepts the federal concept and distributes the
sovereign powers between the coordinate Constitutional entities, namely, the Union
The next landmark case where the nature of the Indian Constitution was discussed at
length was
discussion of the abstract principles of federalism in the face of the express provisions
of the Constitution. It was stated that even if it is possible to see a federal structure
behind the establishment of separate executive, legislative and judicial organs in the
States, it is apparent from the provision illustrated in Article 356 that the Union
Government is entitled to enforce its own views regarding the administration and
granting of power in the States. The extent of federalism of the Indian Union is
largely watered down by the needs of progress, development and making the nation
uplifted. The Court then proceeded to list out some of the Constitutional provisions
which establish the supremacy of the Parliament over the State legislatures.
to issue directives if they were for the benefit of the people of the State and were
aimed at achieving the objectives set out in the Preamble. The issue of federalism was
views. Justice Ahmadi opined that in order to understand the true nature of the Indian
the federation is the existence of the Union and the States and the distribution of
'federation' in the Constitution, the powers of the Parliament under Articles 2 and 3,
powers to issue directions to the States, concept of single citizenship and the system
of integrated judiciary create doubts about the federal nature of the Indian
as quasi- federal or unitary rather than a federal Constitution in the true nature of the
term. As opposed to this, Justice Sawant and Justice Kuldip Singh regarded
overriding powers of the Centre in the event of emergency do not destroy the federal
character of the Indian Constitution. The learned judges elaborated upon the scope
and justified use of the power conferred on the president by Article 356 which will not
restrict the scope of the independent powers of the respective States for" every State is
constituent political unit and has to have an exclusive Executive and Legislature
8
JT(1994) 2 SC 215, (1994) 3 SCC 1, AIR 1994 SC 1918
In the opinion of Justice Ramaswamy, the units of the federation had no roots in the
past and hence the Constitution does not provide mechanisms to uphold the territorial
integrity of the States above the powers of the Parliament. The end sought to be
achieved by the Constitution makers was to place the whole country under the control
of a unified Central Government, while the States were allowed to exercise their
sovereign powers within their legislative, executive and administrative powers. The
essence of federalism lies in the distribution of powers between the Centre and the
designed to suit the parliamentary form of Government and the diverse conditions
prevailing in India. Justice Jeevan Reddy and Justice Agarwal opined that the
Centre. But this factor does not reduce the States to mere appendages of the Centre.
The basic structure this case, some of the Judges in full Constitutional Bench
Rajamannar Commission
In 1969, the Government of Tamil Nadu, dissatisfied with the constitution, appointed
a Rajamannar Committee, "to examine the entire question regarding the relationship
btw the centre & the states in federal set up, with reference to the provisions of the
The Committee accepted the position that the power vested in the centre "does not
These proposals did not evoke much public-enthusiasm & were endorsed neither by
any state-government nor by any All India political party & the report became a dead-
letter.
Sarkaria-Commission
Justice R.S. Sarkaria, a retired Judge of a Supreme Court. The limitations on the
commission was expected to ensure that they were within the constitutional-
It has rejected the demand for curtaining the powers of the centre saying that a strong
The commission's view is that there is no need for drastic changes in the existing-
It its view the fundamental-provisions of the constitution have done reasonably well
&with stood the stresses & strains of heterogeneous society in throes of change.
CHAPTER 9-RECENT DEVELOPMENTS IN INDIA
1. Firstly, the 73rd and 74th amendments of the Constitution in 1992 have created
course these amendments have no impact on central state relations but they
2. With reference to Article 356, the Supreme Court in S.R. Bommai v. Union of
3. In quick succession, once in 1987 and again in 1998, the President has asked
Article 356. On both occasions the cabinet dropped its recommendations. The
Article 356. For quite some-time now the power has not at all been exercises
4. This has changed the real-politics of the country which is not moving towards a
federal- government even through the constitution may not be federal in the classical-
5. A centre state commission has again been constituted in 2007 which is to look into
the developments since the last commission, arising particularly in the light of
globalization.
Dr. B.R. Ambedkar, one of the chief architects of the Indian Constitution said: "Our
In historical as well as present context, the above statement is fully correct because:
federalism is not static but a dynamic concept", it is always in the process of evolution
and constant adjustments from time to time in the light of the contemporary needs the
For making Indian Federalism more robust and viable, the differences between the
centre and the state must be sort out so that India may successfully meet the great-
development. It is very necessary that neither the federal set-up becomes unitary nor
that it becomes too lose and weak, affecting the unitary and integrity of the nation.
progress. India is a country with unity in diversity. There are so many states that are
unique in their cultures and traditions and still feel strongly the oneness among them.
As each state has its own way of lifestyle and culture, it is important to follow federal
form of government in India. As also the Constitutional laws of India suit the federal
governance, India requires federal ruling to maintain national integration. Indians are
having lot of differences in their language, culture or lifestyle and hence live as
different states. But all Indians feel that they are all one and belong to only one country.
It is time to undertake a study of Indian Federalism with a view to evaluate the trends,
relations and to seek to evolve ways and means to meet the challenging task of
making the Indian federation a more robust, strong and workable system so that the
The responsibility lies on not only the jurists and policy framers, but also the citizens
of the country to work in a harmonious manner for the development of the country.
BIBLIOGRAPHY
1. List of sources
list of books referred:-
Indian Constitutional law by Prof MP Jain, 6lh Edition 2010, published by
Lexis Nexis Butterworths, Wadhwa Nagpur.
Constitutional Law of India by Prof. G.S. Pande,
Tenth Edition 2007,
published by M/s University Book House (P) ltd.
Introduction to the Constitution of India by Dr. Durga Basu, 19th Edition
Reprint 2006, published by Wadhwa and Company Law Publishers
Constitutional law of India by V.D. Mahajan,
Seventh Edition 1991, published
by Eastern Book Company, Lucknow
Constitutional
Law of India by Prof. Narendra Kumar, published by Allahabad
law Agency
2. List of websites referred :-
www.wikipedia.com
www.legalserviceindia.com
www.ebc-india.com
www.thehindu.co.in
Pradeep Jain v. Union of India, AIR 1984 S.C. 1420, 1427.
State of West Bengal v. Union of India, AIR 1963 S.C. 1241
In re Under Article 143, AIR 1965 S.C. 745, 762
Supreme
Advocates on Record Association v. Union of India, (1993) 4 S.C.C.
441
Special reference of No.l of 1998, AIR 1999 S.C. 1
S.R.Bommai v.Union of India, J.T. (1994) 2 S.C. 215, (1994) 3 S.C.C. 1, AIR
1994 S.C.1918
2
Constitutional law of India by Rajendra D. Anbhule, 2010, 2nd Edition.
6
AIR 1963 SC 1241
8
AIR 1973 SC 1461.
11
AIR 1984 SC 1420 1427.
13
AIR 1984 SC 1420, 1427
15
AIR 1984 SC 1420, 1427.
23
Constitutional law of India by Kailash Rai. Pg 46