Nature of Indian Constitution – Federal Or Unitary?

Introduction

The Indian constitution is one of the longest constitutions in the world. But that is not the most pertinent characteristic of the constitution. Its uniqueness lies in the tremendous blend of unitary and federal features rendering it a quasi-federal constitution. The Indian Constitution proudly stands strong in terms of this unique quality it possesses. But in order to understand the quasi-federal nature of the Indian Constitution, it is fundamental to understand the various sources of our constitution.

Sources of Indian Constitution

While drafting the constitution, the founding fathers not only took inspiration from various constitutions of the word but also from the Government of India Act, 1935. It acted as a major framework and the Constitution borrowed from it the Federal Scheme of government, Office of Governor, the judiciary system, Public Service Commissions, and the Emergency provisions. Further, there are a few features that form the backbone of our society and legal system, like the Parliamentary form of government, rule of law, single citizenship and writs that were drawn from the British Constitution.

The United States of America’s Constitution had a great influence on the federal structure of our constitution which would be discussed at greater lengths while elaborating on the federal features. But, to name a few, we imbibed the Bill of Rights commonly known as fundamental rights, judicial review, electorate college, separation of powers, preamble, President as commander-in-chief of the Armed Forces and equality before law from the United States Constitution.

The Canadian Constitution also played an important role in inspiring the quasi-federal nature as this was directly borrowed from their Constitution. France inspired the idea of Liberty, Equality, Fraternity and Republic. Whereas, Procedure established by law, suspension of Fundamental rights during Emergency, Fundamental Duties and idea of socialism, economic, political justice along with amendment of Constitution were borrowed from Japan, Germany, Soviet Union and South Africa respectively. While Directive Principles of State Policy (DPSP), election of President and nomination of members of Rajya Sabha was borrowed from the Irish Constitution, freedom of trade and commerce within the country was borrowed from Australia.

Quasi Federal Constitution

Indian federalism’s antiquity and India’s centralized system never fails to astound most jurists. It is due to this unique combination of the two that the Indian Constitution stands alone in terms of this uniqueness. The Constitution of India was drafted in an intricate way so as to ensure an intersection of federal and unitary features. The Constitution of India does not explicitly mention the word “federalism”, yet it has imbibed federal features such as dispersion of responsibilities between Centre and State, an independent judiciary, written constitution, etc. In spite of there being endless controversies and theories by numerous constitutional experts and jurists questioning the federal nature of the Indian Constitution.

The Supreme Court of India in S.R Bommai & Ors vs Union of India[1]  opined that the Constitution of India unlike the Constitution of the United States of America, is not entirely federal. The learned judges were of the opinion that in the United States, the States were sovereign and had the privilege to cherish their own separate existence, therefore, making these states indestructible which eventually led to the formation of an indestructible Union. Contrary to this, in India, parliament relinquishes the power to form a new State within the ambit of law, resize an existing State, change the name of an existing State, etc. and even limit the power, of both executive and legislative, by amending the Constitution. The learned judges gave the aforesaid justification for believing India to have a quasi-federal Constitution

Federal Nature of Indian Constitution

In order to understand the federal features, it is essential to know the meaning of federalism. Federalism could be defined as a way of governance in which the Central Government and the State Government work independently but at the same time coordinate with each other.  In spite of working independently, they strive to achieve one common goal i.e preserving the sovereignty of the nation and the welfare of the people. Although the Indian constitution possesses certain federal features, it is not completely a federal one.

In Sat Pal vs State of Punjab & Ors[2], the Supreme Court held that the Indian constitution is a blend of both federal as well as unitary features. Whereas, in Kesavananda Bharti vs State of Kerela[3], some judges put emphasis on the fact that federalism lies in the basic structure of our constitution. Therefore, making it essential to study the federal aspects of our constitution.

Federal Features of the Indian Constitution

1. Written Constitution

The Constitution of India is a detailed, written document that was crafted with utmost expertise. The Constituent Assembly took two years, eleven months and seven days to draft. During this tedious process, the Assembly held eleven sessions over a span of 165 days. The drafting of the constitution involved endless deliberations on the part of the founding fathers of our constitution. As discussed before, important features of various Constitutions of the world that deemed fit to suit the nation were reviewed. It is believed that in order to hold supremacy of the constitution, the constitution must be a written one.

2. Supremacy of the Constitution

The Constitution is the Supreme Law of the land and nobody is above and beyond it. In cases where any organ of the government tries to override its power, the Constitution acts as a guiding force. By acknowledging the Supremacy of the Constitution, we ensure that no law must be made in contravention with the constitution as rightly stated in Article 13. In the case of Minerva Mills v Union of India[4], the Apex court’s judgement reaffirmed the supremacy of the fundamental framework of our constitution.

3. Rigid Constitution

The Indian Constitution possesses a peculiar federal feature i.e rigidity of the constitution. Rigidity enables the amendment process to be tedious and exhausting. In order to make sure that the constitution is not amended at the drop of a hat, the Constitution has specific ways of amendment. For instance, there are eleven matters in the Constitution that require to be passed by a majority of the total membership of the particular House, by a majority of not less than two-thirds of the members of that House present and voting and to be ratified by not less than one half of the States.

4. Division of Powers

The Constitution of India has divided powers of the central and state government. The seventh schedule lays down the division of power between state and central government. It consists of the Union, State and Concurrent list. The Union Government exercises its power to legislate on the subjects mentioned in the Union List. On the other hand, the State Governments are given absolute authority to legislate on the subjects of the State List under normal circumstances. Both centre and the state can make laws on the subjects mentioned in the concurrent list but in a situation where there is a tussle between the two over a subject, the centre supersedes the state. These are called residuary powers.

5. Independence of Judiciary

This is one of the most essential characteristics of the Indian Constitution. Time and again, the judiciary has proved to uphold the Constitution. It is the protector of the constitution and helps in restoring the balance between what is right and delivering justice. If the Supreme Court of India finds any law to be ultra vires the constitution, it holds the power to declare it as unconstitutional. In order to do so, it is essential to make sure that the judiciary is separated from other organs of the constitution, otherwise, the judges would be mere puppets in the hands of the government.

6. Bicameral Legislature

Bicameralism can be defined as the practice of having two hoses of the Parliament. India has the Lower house commonly known as the Lok Sabha and the Upper House which is referred to as the Rajya Sabha. While the Rajya Sabha could be understood to be a representative of the States, the Lok Sabha is known as the representative of the people. In accordance with Article 168 of the Constitution, the Indian states have the liberty to form either a bicameral legislature or a unicameral legislature.

7. Dual Government

In a unitary government, there exists only one government at the state. Whereas the federal government is categorized by two governments, one at the centre and a separate state government governing each state. India follows a dual government system where each state is governed by a separate government and the central government governing all.

Unitary Nature of Indian Constitution

A state is said to be unitary when it is governed as a single unit by a strong central government. While drafting the constitution, the framers of our Constitution realized the importance of having a strong Centre. Therefore, it was in paramount interest to incorporate a strong center. Article 1 of the Constitution also mentions “union of states” and not “federation” Hence, the Indian Constitution is not entirely a federal one and possesses various unitary features.

Unitary Features of Indian Constitution

1. Single Constitution

In India, there exists a single Constitution for the Union as well as the States. The Constitution does not allow for two separate Constitutions for both Centre and State. In the USA and Australia, the States have their own Constitutions which are equivalent to the Federal Constitution. The State of Jammu & Kashmir was the only state in India that could have a separate constitution. But with the scrapping of Article 370, the Constitution of Jammu & Kashmir now ceases to exist.

2. Single Citizenship

Single citizen is a concept where the citizen is a citizen of the union as a whole. Unlike dual citizen which grants citizenship of the State and Union as observed in countries like the United States and Australia, India only provides single citizenship. Until the scrapping of Article 370, Kashmiris enjoyed dual citizenship, i.e., they were citizens of Kashmir as well as India.

3. Emergency Provision

Primarily, the Constitution mentions three types of emergency – national emergency, state emergency and financial emergency. The President of India has the authority to proclaim an emergency under Articles 352, 356 and 360. If the President proclaims an emergency for the whole or part of India under Article 352, the Parliament may be entitled to make laws on subjects, which are otherwise, under the State list. The Parliament can also give directions to the States. Therefore, it is also possible to suspend the financial provisions. Thus, in case of emergency, India acquires a unitary character. Such a situation cannot be witnessed by most other federal Constitutions.

4. Strong Centre

In State of Karnataka vs Union of India[5] it was stated that “The Indian Constitution is not federal in character, but has been characterised as quasi-federal in nature. Even though the executive and legislative functions of the Centre and States have been defined and distributed, there runs through it all a thread or rein in the hands of the Centre in both the fields.” Article 246(2) and List I of the Seventh Schedule gives Parliament the power to make laws under any matter enumerated in the Union list. It contains the most important subjects. Furthermore, the Centre has been provided with preponderant authority over the Concurrent List. In fact, even the residuary powers vest with the Centre. Thus, the Constitution has made the Centre very strong

5. Flexible Constitution

The Constitutional amendment process could be partly rigid and partly flexible. But the fact that it has been amended more than hundred times is a good mirror of its real characteristic. Endless landmark judgements have revolved around this topic making it a principal point of debate. Nonetheless, the power to amend the Constitution does not necessarily lie with the state.

6. All India Services

In spite of having separate public services for both Centre (Union Public Service Commission) as well as State (e.g., Maharashtra Public Service Commission for Maharashtra), there are all India services like the IAS, IPS, and IFS which are common for the Centre as well as the States.  Ultimately, the Centre retains control over them only enhancing the unitary features of our Constitution.

7. Appointment of Governor

As per Article 155 and 156, the Governor is the Constitutional head of the state. The head of the state is appointed by the President and holds office during the pleasure of the President. The Centre exercises control over the states through the governor.

8. Integration of Judiciary

India is characterized a single integrated judicial system. The Supreme Court being the apex court is at the top. All other High Courts lie below it. This feature does not exist in a federation like the USA as it has a dual system of court.

9. Election Commission

The Election Commission conducts elections in both Central legislature and State legislatures., The Election Commission is established by the President.

10. Audit Machinery

The Comptroller and Auditor-General of India audit the accounts of the Central government and the State Governments. The position of the Comptroller and Auditor-General restricts the financial autonomy of the States. On the contrary, the Comptroller-General of the USA has no involvement in managing accounts of the States.

11. Lack of Equality in Representation

Representation in the Rajya Sabha is on the basis of population. Hence, the membership varies and there is no fixed number of seats allotted to any State. In the American House of Representatives, the Senate has 100 members. There are two members from each state.

Conclusion

The Constitution of India possesses a significant feature where it makes possible to be federal in nature but unitary in spirit. The drafters of the Indian Constitution established to strike a balance between the unitary and federal features. Hence, Dr. K. C. Wheare rightly said that “The Indian Constitution establishes, indeed, a system of government which is at the most quasi-federal, almost devolutionary in character; a unitary State with subsidiary federal features rather than a federal State with unitary features.”

References

[1] AIR 1994 SC 1918

[2] AIR 1981 SC 2230

[3] AIR 1973 SC 1461

[4] AIR 1980 SC 1789

[5] 1978 AIR 68

This article has been written by Aayushi Mittra, BLS LLB student at Pravin Gandhi College of Law.

Also Read – Do Emergency Provisions Modify the Federal Character of Indian Constitution?

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