In August 1947, India attained freedom from the imperial powers of the British. It took till 1950 for the new Indian constitution to be adopted by the nation. Ever since then, the constitution has undergone several amendments to arrive at its present form. There has been debate and discussion on whether the constitution, in its present form, adequately safeguards the fundamental rights of the people. There has also been confusion surrounding whether our constitution is unitary or federal in nature. The difference between unitary or federal relations is what dictates the relationship shared between the union and the states. It also dictates the various issues which the state and union can deliberate upon, either independently or together.
However, in India, it has been difficult to determine whether there are federal and unitary relations shared between the state and the center. This stems from the fact that the constitution possessed both unitary and federal traits, which has created a unique combination of the two. This has also led to friction in the past between the states and the center. This friction is caused by debates over which matters can be adjudicated by them jointly or independently. However, Dr. BR Ambedkar, one of the key framers of the constitution, has claimed that India has a federal constitution[1]. As a result, to understand if India has a federal or unitary constitution, its key features must be explored and analyzed.
Legal Provisions Involved
Federal Features of The Constitution
a) Clear Separation of Powers Between the State and the Center
The Indian constitution allocated a division of power between the states and the center in a unique manner. Hence, while some powers are shared between the two, others are solely allocated to either the states or the center. The 7th schedule of the constitution has 3 lists that encapsulate this division.[2] These include the state list, union list and concurrent list. The state list mentions the areas that are in the jurisdiction of the state. The union specifies those which are in the domain of the center. The concurrent list highlights those subjects which can be handled by both. The state list includes subjects like agriculture, prison, police and trade and commerce, among others.[3] The union list mentions defense, railways, banking, and foreign trade.[4] The concurrent list highlights subjects like education, forests, and trade unions.[5] However, these divisions are not crystal clear and there often tends to be an overlap. This is what gives rise to the various confrontations between the center and state.
b) Judiciary and Constitution is Supreme
In India, the constitution and judiciary are considered to have the utmost power. It is on the basis of these two that the justice system in the country functions. In the case of Minerva mills v. Union of India [6], the court held that, “government, legislature, executive and judiciary is all bound by the constitution, and nobody is above or beyond the constitution.” [7] This was one of the many cases that emphasized that neither the parliaments nor the state had the unchecked power to violate any provision of the constitution. Moreover, it is the judiciary’s task to review the various laws and acts passed by the various governments. If the judiciary finds that any of these laws infringe upon the fundamental rights of ordinary citizens, it can declare such acts null and void. It can even invalidate those laws which contravene anything enshrined in the constitution. It aimed to further the basic structure doctrine [8] that had been solidified with the kesavananda Bharti Case[9]. These referred to the 42nd amendment made by the Indira Gandhi government which provided parliament with “unlimited powers” to reform the constitution.[10] The judiciary had declared this amendment unconstitutional.
c) Bicameral Legislature and Dual system of government
Ascribing to the features of a federal system, the Indian system too has a bicameral legislature. There is the house of the people i.e., the Lok Sabha. These are the representatives that are elected by the citizens of the nation themselves. [11] There is also the council of states i.e., the Rajya Sabha that are elected indirectly by the people.[12] These two comprise both houses of parliament and form the core of the executive. They both have separate functions, and their electoral processes are different. For instance, the President can nominate a certain number of members based on their skill and expertise in a particular field. This practice is not followed in the Lok Sabha, where a direct election occurs. The Lok Sabha and Rajya Sabha elections also do not occur simultaneously, and hence the two houses of parliament function in unique manners.
In India, there is also a dual system of government. These include the state and central government. Both these systems work in parallel and have their own utilities. Article 168 of the constitution advocates for this bicameral legislature that is observed in our country[13]. Article 246 on the other hand speak of the powers of both state and union governments to make laws on various subjects[14].
Unitary Features of the Constitution
a) Single system of judiciary, citizenship, and administration
According to article 9 of the Indian constitution, no citizen of the country can attain citizenship of a foreign state.[15] To simplify it, once an individual has attained citizenship of India, they cannot be citizens of another country. This is unlike several countries like the United States of America, United Kingdom, and other such countries. There is also a single system of judiciary. These include the sessions courts, followed by the high court and finally, the supreme courts. Hence, this comprises the Indian judiciary and it is the streamlined structure of justice. This contrasts with countries like the United States of America where there is a dual system for the judiciary as well.[16] There is also a single system of administration which is facilitated by the various public services. This includes the Union Public Service Commission (UPSC), where there is the Indian administrative services and Indian police services, among others. There are also the state services which function in parallel to the UPSC. Hence, even the various institutions are governed by the singular structure which is critical to the unitary features of the nation.
b) Emergency Powers
According to article 356[17] of the constitution, India can proclaim an emergency in certain exceptional circumstances. In case there is a threat to the national security, the government can proclaim a national emergency to protect to combat these threats and ensure the protection of the nation. According to article 360[18], the government can also proclaim a financial emergency. This is done when the country’s financial reserves are in question. Finally, an emergency can also be proclaimed in case of breakdown of constitutional machinery[19]. This refers to when the various branches of the government have broken down and are unable to function efficiently. When an emergency is proclaimed, the Lok Sabha is dissolved and the Rajya Sabha takes control of the functioning of the state. However, several amendments were made to this emergency provision after the emergency in 1975. This was done with the intent to ensure no one misused the provision for their own personal benefit.[20]
c) Redefinition of the boundaries of a state
According to article 3 and 4 of the Indian constitution, the parliament has the power to redefine the boundaries of a state or union territory.[21] Hence, it has the power to mold the various territorial divisions within the country and establish new states and union territories. The parliament did this with the union territories of daman and diu and can do it for others as well.[22] They can also rename states and cities. For instance, the city of Allahabad was renamed to Prayagraj.[23] Even the state of Telangana emerged very recently as a separate state.[24] This is a very key feature of a unitary form of government. By allowing the center the power to control the territorial division of the states, it advocates a unitary constitution as well. As a result, there are several claims that India is a “quasi-federal state”[25] due to the features of both a unitary and federal form of government.
Landmark Cases
a) Kesavananda Bharti case
It was in this case that the courts established the ‘basic structure doctrine’. By this doctrine, certain subjects of the constitution could not be amended at any cost. It was to prevent the “unlimited power” of the parliament to amend certain constitutional provisions. The judicial bench held, by a 7-6 majority, that the parliament does not have this unchecked power. The Kesavananda Bharti case helped to secure the constitutional rights of the citizens of the country. Hence, the courts in their judgement held the following: –
“The Indian Constitution is a social document first and foremost. Most of its provisions are either specifically aimed at advancing the goals of the social revolution by creating the conditions required for its achievement, but despite the permeation of the entire Constitution with the goal of national renaissance, the fundamental rights and the Directive Principles of the State Policy are at the heart of the commitment to the social revolution in Part III and IV. They are the Constitution’s conscience. Therefore, in order to enforce the obligations placed on States under Part IV, the privileges bestowed on people or persons under Part III can need to be abridged in some respects….” [26]
As a result, the Kesavananda Bharti case is the most prominent one in the judicial history of India and has been cited in several cases as the foundational basis for legal proceedings.
b) S.R. Bommai v. Union of India
In the S.R. Bommai case, there were several issues with the Karnataka state’s chief minister, SR Bommai. He left the Janata government and joined the Lok Dal, and this led to the dissolution of the government. The president attempted to declare a state emergency and SR Bommai appealed to the supreme court. Hence a writ petition was filed challenging the validity of article 356. The judgement delivered was as follows,
“The Hon’ble court held that the power of president to proclaim the emergency in a state i.e., the presidential rule is subject to some restrictions, and it should be on the basis of the report and opinion of governor and not in the sole satisfaction. The Hon’ble court also held that the court owns the power to Judicial review of the proclamation and id it is found to be malafide, the court struck down the proclamation even if it has received the consent of both the houses.” [27]
As a result, the court held for the democracy of the nation and analyzed the concept of federalism under the Indian law. They held that while the nature of federalism is intact, there are unitary features as well. However, in this case the states have their own power within their jurisdictions. As a result, the court acknowledged federalism as an integral feature of the constitution and emphasized the courts power of judicial review.
c) State of West Bengal vs. Union of India
In this case, the state of West Bengal appealed to the supreme court due to the union government overriding its power. This referred to the union government attempting to gain the rights of a particular land. However, this piece of land belonged to the state. As a result, the state claimed they were violating the norms of federalism and appealed to the court to stay this action. The judges in this case held that, “The Federation may, if it deems it necessary to acquire any land situate in a Province for any purpose connected with a matter with respect to which the Federal Legislature has power to make laws, require the Province to acquire the land on behalf and at the expense, of the Federation or, if the land belongs to the Province, to transfer it to the Federation on such terms as may be agreed or, in default of agreement, as may be determined by an arbitrator appointed by the Chief Justice of India.”[28]
Thus, the courts claimed that the union government, according to article 294[29], can have a superior claim in certain areas and this is enshrined in the subject of federalism.
d) Kuldip Nair vs. Union of India
An amendment was made to the representative of people’s act of 2003, by virtue of which Kuldip Nayar, the plaintiff, would no longer be regarded as a “domicile” of the state in question. Kuldeep argued that the union government had violated the principle of federalism and hence proceeded to file a case under article 32. However, the courts disagreed with this and declared the following in their judgement.
“India is a federal state of its kind, the court held that ‘It is no part of federal principle that the representatives of state must belong to that state’. The word ‘representative of each state’ only refers to the members and do not import any further concept or requirement of residence in the state.”[30]
Hence, his argument was rendered void by the courts and his petition was also dismissed.
Analysis and Conclusion
As a result, while there is a division between the states and the center, there tend to be overlaps and this confuses the so-called federalism observed in India. For instance, if one were to evaluate the recent vaccine issue, this overlap is visible. In the early stages of the pandemic last year India had supplied vaccines to various countries, comprising on their own existing stock. However, in the current scenario, this meant lesser vaccines for Indian citizens themselves. In the peak of the second wave, the center had restricted the supply of the vaccines to several states, creating an acute shortage of the same.
While public health is a state subject, it is the governments responsibility to establish and regulate health policies. In the national capital of Delhi, there were conflicting numbers on the number of vaccine doses that had been ordered in the month of May. In fact, the situation had reached a point that the city had shut down several vaccination centers due to the vaccine shortage[31]. A similar situation was observed in Maharashtra, where chief minister Uddhav Thackeray claimed that the central government had stopped the supply of vaccines to the state.[32] In fact, Maharashtra, Karnataka, and other such states were willing to approach the global markets to compensate for this vaccine shortage.[33]
Due to the non-supply of the vaccine, citizens were left without them, and this created a health crisis within several states. The state governments appealed to the center for their support but failed to receive it. The registration process on the ‘Cowin’ website was arbitrary and full of glitches. There was no clarity on the number of available slots and the government failed to provide any further instructions on the matter.[34] As a result, the vaccination drive failed to achieve its main target: free vaccinations for all Indians. It is only recently that prime minister Narendra Modi centralized the vaccine policy and assured its supply in adequate numbers for the various states.
These discourses between the state and the center were even highlighted during the Indira government. During this era, the supreme court had to actively intervene to ensure that parliament was not overriding its powers and comprising the fundamental rights of its citizens.[35] Therefore, the constitution of India advocates for a balance between federal and unitary features and this can be seen in its various provisions as well.
[1] Negi Mohita, The Relation Between Center and State in India, your article library https://www.yourarticlelibrary.com/essay/the-relation-between-centre-and-state-in-india/24925.
[2] Heba Ali, Nature of Indian constitution: Federal or unitary, iblogpleaders.in (May 21, 2019) https://blog.ipleaders.in/nature-indian-constitution/
[3] Vakush Garg, Federal and Unitary Features of Indian constitution, law circa (Sep. 8, 2019) https://lawcirca.com/federal-and-unitary-features-of-indian-constitution/
[4] Supra note 2.
[5] Id.
[6] Minerva mills v. Union of India A.I.R. 1980 S.C. 1789.
[7] Id.
[8] Kesavananda Bharati v. State of Kerala A.I.R. 1973 S.C. 1461.
[9] Id.
[10] Supra note 8.
[11] Amit, Chapter 1: Nature of Indian constitution, federal and unitary constitution, tax will study (Nov. 29, 2018), https://study.taxwill.in/2018/11/chapter-1-nature-of-indian-constitution-federal-unitary-constitution.html
https://legalpaathshala.com/is-indian-constitution-federal-in-nature/.
[12] Legal paathshala, Is Indian constitution federal in nature?, Legal paathshala (Jan. 28, 2021), https://legalpaathshala.com/is-indian-constitution-federal-in-nature/.
[13] Supra note 11.
[14] Negi Mohita, The Relation Between Center and State in India, your article library https://www.yourarticlelibrary.com/essay/the-relation-between-centre-and-state-in-india/24925.
[15] INDIA CONST. art. 9.
[16] Vakush Garg, Federal and Unitary Features of Indian constitution, law circa (Sep. 8, 2019) https://lawcirca.com/federal-and-unitary-features-of-indian-constitution/.
[17] INDIA CONST. art. 356.
[18] INDIA CONST. art. 360.
[19] INDIA CONST. art. 365.
[20] Supra note 16.
[21] INDIA CONST. art. 3 & 4.
[22] Vakush Garg, Federal and Unitary Features of Indian constitution, law circa (Sep. 8, 2019) https://lawcirca.com/federal-and-unitary-features-of-indian-constitution/.
[23] Mohammad Faisal, Allahabad to be renamed as Prayagraj: A look at UP govt’s renaming streak, india today (Oct. 16, 2018, 3:09 PM), https://www.indiatoday.in/education-today/featurephilia/story/allahabad-to-be-renamed-as-prayagraj-a-look-at-up-govt-s-renaming-streak-1368908-2018-10-16.
[24] Supra note 22.
[25] Legal paathshala, Is Indian constitution federal in nature?, Legal paathshala (Jan. 28, 2021), https://legalpaathshala.com/is-indian-constitution-federal-in-nature/.
[26] Kesavananda Bharati v. State of Kerala A.I.R. 1973 S.C. 1461.
[27] S.R. Bommai vs. Union of India, A.I.R. 2017 S.C. 2734.
[28] State of West Bengal vs. Union of India A.I.R. 1963 S.C. 1241.
[29] INDIA CONST. art. 294.
[30] Kuldip Nair vs. Union of India, A.I.R. 2006 S.C. 3127.
[31] Aishwarya Paliwal, Centre, states at loggerheads over vaccine supply, struggle for citizens sees no end, india today (May 12, 2021), https://www.indiatoday.in/india/story/centre-state-fight-over-vaccine-supply-citizens-struggle-1801554-2021-05-12.
[32] Id.
[33] Shashank Atreya, Health a state subject but covid proved how dependant India’s states are on the centre, the print (Jun. 18, 2020, 1:07 PM), https://theprint.in/opinion/health-a-state-subject-but-covid-proved-how-dependant-indias-states-are-on-centre/442602/.
[34] Supra note 29.
[35] Legal paathshala, Is Indian constitution federal in nature?, Legal paathshala (Jan. 28, 2021), https://legalpaathshala.com/is-indian-constitution-federal-in-nature/.
Author: Arundhatti Ojha from JGLS, Sonipat.
Juris Centre 