1 THE FEDERAL SYSTEM
Nature of the Indian Federal System :-
The Constitution says: " India shall be a Union of States: (Art.1). The term 'Union' was used to indicate
(a) that the Indian federation is not the result of an agreement by the units, and
(b) that the component units have no freedom to secede from it.
However, the term 'union' does not in itself indicate any particular type of federation. Actually, there is no agreed definition of a federal State. India's constitutional system is basically federal, but with striking unitary features. The Indian Constitution satisfies the following characteristics of a basically federal constitution:
Unlike a unitary state, which has only one government, namely, the national government, India has two kinds of governments functioning at two different levels - Union government and the government of each Component State.
The constitution of the States has been given by a duly constituted body consisting of the representatives of the Indian people, which have made a clear-cut distribution of powers between the federal government and the state government.
The supremacy lies with the Constitution from which both the Union and the State governments derive their authority.
The Supreme Court has been entrusted with the responsibility of guarding the distribution of powers between the Center and the States, and to invalidate any action which violates the limitations imposed by the Constitution.
1.1 Peculiar Features of Indian Federalism
1. Unitary Aspect :- The government of a country, till the Indian Act of 1935 was passed, was a centralised government and the process that was adopted under the Indian Act of 1935 was that of 'creating autonomous units and combining them into a federation by one and the same Act'. The process for the establishment of a federation in India has to be described as one of movement from the union to the units, rather than from the units to the union. A partition of the country, with the seceding part nurturing a grouse against it, and the uncertainties of the international situation - the emergence of two Super Powers struggling for supremacy over each other-made it necessary for the Indian Constitution to make provisions for the centralization of power. Thus we have the following features.
The residuary powers under the Indian Constitution are assigned to the Union and not to the States.
The Indian Constitution lays down in considerable detail the Constitution for the States also.
Except in a few specified matters affecting the federal structure, the States need not even be consulted in the matter of amendment of the Constitution.
The Indian Constitution provides the Union with powers to exercise control over the legislation as well as the administration of the States. There is, of course, a federal element in this provision in as much as such expansion of the power of the Union into the State sphere is possible only with the consent of the Council of States. The Union Government can issue directions upon the State Governments to ensure due compliance with the legislative and administrative action of the Union. The President can withdraw to the Union the executive and legislative powers of a State under the Constitution if he is, at any time, satisfied that the administration of the State cannot be carried on in the normal manner in accordance with the provisions of the Constitution, owing to political or other reasons. Legislation by a State can be reserved by the Governor for his consideration and disallowed by the President, if he so decides.
In the case of the Indian Constitution, while the Union is indestructible the States are not. It is possible for the Union Parliament to reorganise the States or to alter their boundaries by a simple majority in the ordinary process of legislation.
There is only one citizenship namely, the citizenship of India.
The Constitution itself provides for the creation of certain all India services, which are common between the Union and the States.
India has a unified judiciary, which Administers both the Union and State laws as might be applicable to the cases coming up for adjudication. Also in matters of election, as well as in accounts and audit, there is a similar integrated machinery.
2. Relations between the Union and the States :-
Center-State relations constitute the core of federalism and they are regulated by the provisions of the Constitution. Parts XI and XII deal with the various aspects of Center-State relations. The division of powers between the Union and the States, as given in the Indian Constitution has a strong bias in favour of the Center, and various kinds of restrictions imposed upon the States render even the limited sphere of powers awarded to them under the Constitution as practically null and void.
(i) Legislative Relations :- From the point of view of the territory over which the legislation can have effect, the jurisdiction of a State Legislature is limited to the territory of that State. But in the case of Parliament, it has power to legislate for the whole or any part of the territory of India --- i.e. States, Union Territories or any other areas included for the time being in the territory of India. Parliament has the power of 'extra-territorial legislation' which means that laws made by the Union Parliament will govern not only persons and property within the territory of India but also Indian subjects resident and their property situated anywhere in the world. Only some provisions for scheduled areas, to some extent, limit the territorial jurisdiction of Parliament.
As regards the subjects for legislation, there is a three-fold division of power in the Indian Constitution.
The three lists of subjects are known as Union List, State List and Concurrent List.
The Parliament is solely empowered to enact laws on subjects included in the Union List. The State Legislature can make laws on subjects in the State List. Both the Parliament and the State Legislature can make laws on subjects included in the Concurrent List. But in case of a conflict between the Central and State laws, Central law prevails. Residuary powers lie with Parliament, which has exclusive power to legislate on any matter not enumerated in any of the lists.
Under certain circumstances the Central Government can legislate on subjects mentioned in the State List viz.,
if there is a proclamation of National Emergency;
If the Rajya Sabha passes a resolution by two-third majority to the effect that the particular subject is of national importance;
when a State is under President's rule;
when two or more States make a joint request to Parliament to legislate on a State subject; or
in order to implement any international treaty or agreement.
Important Subject in the Three Lists :-
(1) The Union list consists of 97 subjects. The important among these are Defense, Atomic Energy, Foreign Affairs, Diplomatic, Consular and Trade Representations, War and Peace, Citizenship, Railways, Shipping and Navigation, Airways, Aircraft and Air Navigation, Posts and Telegraphs, Currency and Coinage, Inter-State Trade and Commerce, Banking, Insurance, Census, Audit and Accounts of the Union and of the States, and residuary subjects.
(2) The important subjects in the State List are Law and Order, Police, Health and Sanitation, Agriculture, Fisheries, Trade and Commerce within the State, Land Revenue and State Public Services, Regulation of Mines and Mineral Development, Industries, Relief of the Disabled and Unemployable, Protection, and Improvement of Stock, Water, Land and Forests.
Note-There are 61 subjects under the State list of the VII Schedule of Indian Constitution. Originally the state list had 66 subjects. After the 42nd amendment of the Indian constitution, 5 subjects were transferred to the concurrent list.
(3) The important subjects in the Concurrent List are Criminal Law and Procedure, Preventive Detention, Marriage and Divorce, Economic and Social Planning. Trade Unions, Industrial and Labor Disputes, Factories, Electricity, Newspapers, Mental Deficiency, Adulteration of Foodstuffs, Drugs, Vocational Training, Legal, Medical and other Professions, Price Control, Education, Administration of Justice, Family Planning.
In case there is an overlap of a matter between the three lists, predominance has been given to the Union Legislature. In case of State Law relating to some subject included in the Concurrent List is not in conformity with the Union law, the latter shall prevail, unless the State law had been reserved for the assent of the President and received such assent, in which case the State law would prevail in spite of its being inconsistent with the Union law.
Note -In the original constitution, there were 47 subjects in the concurrent list, at present, there are 52 subjects in it
(ii) Administrative Relations :- The Indian Constitution is based on the principle that the executive power is co-existence with legislative power, which means that the Union Executive/the State Executive can deal with all matters on which Parliament/State Legislature can legislate. The executive power over subjects in the Concurrent List is also exercised by the States unless the Union Government decides to do so. The Center can issue directives to the States to ensure compliance with the laws of Parliament for construction and maintenance of the means of communications declared to be of national or military importance, on the measures to be adopted for protection of the railways, for the welfare of the Scheduled Tribes and for providing facilities for instruction in mother tongue at primary stage to linguistic minorities. The Center acquires control over States through All India Services, Grants-in-aid and the fact that the Parliament can alone adjudicate in Inter-State river disputes. In addition there is a provision for the appointment of Inter-State Council to advise the President on Inter-State disputes, though no such Council has been set up so far.
During a proclamation of emergency, the Union Government can go to the extent of determining the manner in which the executive power of the State is to be exercised in any matter whatsoever, which, practically, would amount to bringing the State Government under the complete control of the Union Government without suspending it. Upon a proclamation of the failure of the constitutional machinery in a State, the President becomes entitled to assume to himself any or all of the executive power of the State. The powers of the Union Government during a proclamation of financial emergency (never declared so far) are equally comprehensive.
(iii) Financial Relations :- Both the Union government and the States have been provided with independent sources of revenue by the Constitution. Parliament can levy taxes on the subjects included in the Union List. The States can levy taxes on the subjects in the State List. Ordinarily, there are no taxes on the subjects in the Concurrent List. In the financial sphere the Center is better equipped. The States are greatly dependent on the Centre for finances. The Centre can exercise control over State finances through the Comptroller and Auditor- General of India and grants (general and special). But during a financial emergency the President has the power to suspend the provision regarding division of taxes between the Centre and the States. He can also improve various other restraints on the expenses of the States. The Centre is much more powerful than the States and emergency provisions make it too powerful to be subordinated by the State.
