Introduction
The federal constitution is a document which divides the powers between the Union and the Federation of States. In other words, a federal constitution is the framework document which establishes a unitary central government comprised of smaller independent governments such as provinces or states united in a federation. The federal Constitution marks off the sphere of action of each level of government by devising an elaborate scheme of distribution of legislative, administrative, and financial powers between the Centre and the States. A government is entitled to act within its assigned field and cannot go out of it, or encroach on the field assigned to the other government.
Essential Characteristics of Federal Constitution
There are few essential characteristics of a Federal Constitution. Without the presence of these, a country can never have a Federal Constitution. These are:
1. Division of Power: The most important characteristics of a Federal Constitution is the Division of power. In this, one part of power should be in the hands of the Union Government and others should be in the hands of State Governments. There is no uniform method of this division. For example, in the United States of America, powers given to Union Government are specifically defined in the Constitution, while the remaining powers known as residuary powers are given to the states. There, the States are more powerful. In the case of India, power is divided into Union and States and the remaining power vests in the concurrent list where both Union and States can make laws. In case of conflict, the Union’s stand will prevail. Therefore, here the Union is more powerful.
2. Written Constitution: It is also important that this type of Constitution must be in written form. In case of conflict between the Union and the States, there must be a clear source of information which can clear the doubt between the two. This should be lucid and unambiguous.
3. Rigid Constitution: This type of Constitution must be rigid which means that it cannot be amended easily. If it can be amended easily then Union can gain more power by easily amending the Constitution. If the amendment of the Constitution is that easy then it would create a feeling of insecurity in the minds of the State Government and the Union will act in a dictatorial manner.
4. Supremacy of Constitution: Constitution is regarded as the “Supreme law of the land” and its supremacy must be maintained because this will maintain a state of balance between the Union and the States. Both should work under the domain of the Constitution as they derive their power through it. Neither should commence any act which is against the provisions of the Constitution. Any essential changes should be made according to the method provided in it.
5. Independent Judiciary: In the state of distribution of power, there must be an agency which can resolve the conflict (if arises) between the two and this agency must be independent in nature. This agency is known as Judiciary. It acts as a guardian to the Constitution and checks that any act should not supersede the provisions of the Constitution. It is the judiciary which will interpret the provisions of the Constitution in case any ambiguity arises. This is known as the “doctrine of implied powers”.
6. Bicameral Legislature: Every State in a country has different interests. There must be a platform which can put the voice of state at the Union level. This is possible only when there are two houses of the Union Legislation. The first house will look into the matter of the population. The other house will look upon the interests and rights of the States.
Is Indian Constitution federal?
The nature of the Indian Constitution is best described by Ivor Jennings in his words that “India has a federation with a strong centralized policy”. According to him, the Indian Constitution has given the power to the states but in a limited manner. This is true in every sense. For example, in the case of the concurrent list where both Union and States can make laws but if any conflict arises between the two, the law made by Union will prevail. This is enshrined in Article 254 of the Constitution under “Doctrine of Repugnancy”.
This was held valid in the case of Zaverbhai Amaidas vs The State of Bombay [AIR 1954 SC 752]. In addition to that, Article 248 says that only Parliament can make laws on the subject which is not mentioned in any of the three lists. This is known as the “Doctrine of Residuary Powers”. This was upheld in Union of India vs H. S. Dhillon [AIR 1972 SC 1061]. Article 249 allows the parliament to make laws on a subject related to the State list in the national interest. Article 250 allows the parliament to make laws on any subject related to State list in the case of the proclamation of emergency. Other than that, the power of making changes in the subjects related to the Subject list is in the hands of Union.
Apart from these, Article 258(2) allows Parliament to use State machineries for the enforcement of Union laws and for this it may confer power or impose duties upon the State or its officials to see that the laws are made applicable in the State. All this can be done without the consent of the State. In this way, we can say that the Indian constitution is federal in nature as it fulfills all the essentials conditions of it but it is unitary in spirit.
