India is organized federally. However, the word “federation” is never used once in the constitution. Rather, the statement is that India is a “Union of States.” In actuality, a lot of historians think that India is a nation that is somewhat federal. It denotes a federal state having a few characteristics of a unitary administration. Let’s examine the causes. India’s federal state of governance is fundamentally mandated by the constitution. We have multiple tiers of government, as you are already aware. The central government consists of the Lok Sabha and the Rajya Sabha. Next came the Vidhan Sabhas, the Vidhan Parishad, and the different state administrations. Lastly, there are the Panchayats and Municipal Corporations, which are examples of local government.

CONCEPT OF FEDERALISM UNDER THE INDIAN CONSTITUTION

Federalism refers to the principle of government that defines the relationship between the Central Government at the national level and its constituent units at the regional, state and local levels. It is distribution of power among all the levels in such a way that all the units is given the responsibility and authority to govern the same. However, the right basis of federal system of government lies in the existence of power both by Union and Regional governments. It has been rightly observed that ‘it seeks to reconcile unity with multiplicity, centralization with decentralization and nationalism with localism.[1] ‘Federalism has been part of the public disclosure in India for many decades, before and after independence in 1947, but it has gained greater importance since the 1990s when the country’s national policy saw the advent of the coalition era.[2]  The framers of the Constitution have inserted many provisions regarding the inter-governmental cooperation to avoid any kind of disputed between the Centre and the States. The provision for federal form of government has been incorporated under Article 246 and VII Schedule to the Constitution but they deliberately refrained from using the term federation, as in their considered view, it might impede the objective of Unity and Integrity of the Nation.[3] As per Article 245(1) of Indian Constitution, the jurisdiction of each state is confined to its own territory, it could possibly have been argued that acts and record of one states could not be recognized in another State.[4] Article 261 removes any such difficulty. Article 261(1) lays down that ‘full faith and credit’ is to be given throughout the territory of India to ‘public acts’, records and judicial proceedings of the Union and the States.[5] Further, Article 263 0f the Indian Constitution provides for the establishment of an Inter-State Council by order of President of India. If it appears to him that public interest would be served by its establishment. The council is envisaged to be an advisory body having no authority to give a binding decision yet it can inquire and advice upon Inter-State disputes, as complimentary to the Article 131 of the COI which deals with legal controversy between the governments i.e., between Centre and State, State and State or Centre and States, etc.[6]

INDIA AND DIFFERENT KINDS OF FEDERALISM

 India has been referred to different kinds of federalism in different cases according to the circumstances. Former Chief Justice Beg, in State of Rajasthan v. Union of India,[7] called the Constitution of India as ‘amphibian’, in the sense that it can move either on the federal or on the unitary plane, according to the needs of the situation and circumstances of a case. Similarly, in S.R. Bommai v. Union of India,[8] ‘pragmatic federalism’ was used, quoting Justice Ahmadi, ‘It would thus seem that the Indian Constitution has, in it, not only features of a pragmatic federalism which, while distributing legislative powers and indicating the spheres of governmental powers of State and Central Governments, is overlaid by strong unitary features.’ The phrase ‘semi federalism’ was used for India in State of Haryana v. State of Punjab, [9] whereas in Shamsher Singh v. State of Punjab,[10] the constitution was called ‘more unitary than federal.’

Another case on this issue is that of State of West Bengal v. Union of India,[11] this case dealt with the issue of exercise of sovereign powers by the Indian states. The Supreme Court in this case held that Indian Constitution does not promote a principle of absolute federalism. The court further discussed four main characteristics highlighting the fact that the COI is not a ‘traditional federal Constitution’.

• First, being that there is no provision of separate Constitution for each State as required in a federal state. The COI is the supreme document, which governs all the states.
• Secondly, the Constitution can be altered only by the Union Parliament; whereas the States have no power to alter it.
• Thirdly, in contradiction to a federal Constitution, the COI renders supreme power upon the Courts to invalidate any action which violates the Constitution.
• Fourthly, the distinction of powers facilitates local governance by the States and national policies by the Centre.

THE CONCEPT OF ATYPICAL FEDERALISM

In a federation or other type of union where the component states have differing powers, there is atypical federalism, also known as asymmetrical federalism, where one or more of the substates have a great deal more autonomy than the other substates despite sharing the same constitutional position. Symmetric federalism, on the other hand, does not distinguish between its component states. Because of this, it is commonly suggested as a remedy for the discontent that results when one or more constituent units believe that their requirements differ greatly from those of the others due to language, ethnic, or cultural differences. There is little distinction between a federacy and an atypical federation.

A federacy can be defined as an extreme instance of an asymmetric federation, either because of significant variations in the degree of autonomy or because of the inflexibility of the constitutional provisions. On the other hand, all states in an atypical federation have the same formal status, whereas independent substates in a federacy have a separate status. An atypical federation must also have a federal constitution.

Article 370 and the special provisions and authorities granted to Nagaland, Mizoram, and other states under the omnibus Article 371 exhibit constitutional asymmetry. Without the approval of the legislatures in the aforementioned northeastern states, the parliamentary statute cannot be put into effect there. Furthermore, the establishment of the Autonomous District Council in accordance with the Sixth Schedule recognizes the socio-cultural, political, and historical rights of the tribes residing in the Northeast, thereby enabling the implementation of self-rule within the framework of shared rule. Historically, the state of Jammu and Kashmir was accorded a status different from other States owing to an explicitly temporary provision of the Indian Constitution namely Article 370 (which was revoked by the Parliament in 2019).[12]

Moreover, Union Territories (UTs) represent a new form of asymmetry that has been incorporated into the Indian asymmetrical framework. Their organization adheres to the principles of federal asymmetry. These unique federating units are the result of several creations. The nomination of the Chief Minister of Delhi by the President of India on the Lieutenant Governor’s (LG) proposal is a prime example of asymmetrical federalism, and the case of Delhi is no exception. This clause respects Delhi’s unique designation as an NCT.

GOVT OF NCT OF DELHI v. UNION OF INDIA

This particular case is all about how the tension arose between the Central govt. and the State of Delhi while dividing the powers among the both. As State of Delhi do not follow the typical concept of federalism along with other States under the Constitution of India. It challenged the traditional federal principles.

Related provisions[13] :-

• Article 239 of COI;- States that every UT has its administrator who is elected by president who will aid president to govern the UT :- president can appoint the governor of neighbor state as administrator of UT.
• ARTICLE 239 AA of COI ;-States about tha special status of Delhi and names it as NCT Delhi  and their administrator will be named as Lieutenent Governor-
• It gave the power to form legislative assembly and council of ministers to formulate legislation on matters included in state and concurrent list but there are some exceptions i.e. public order, police and land.
• The section also states about the appointment of lieutenant governor who will act in the aid and advice of Council of ministers headed by chief minister bit there are certain exceptions.

In case of difference of opinion between the LG can refer the matter to the president and act according to the order of president. So, the matter of dispute was the exploitation of this rule by the LG in every matter.

Facts:-

• The issues raised in this case[14] was previously heard by the Delhi High Court in 2015 because of a series of run-ins between Chief Minister Arvind Kejriwal and Ret’d Lt. Governor Najeeb Jung over matters such as the appointment of a Chief Secretary without consulting the Lt. Governor and the Chief Minister instituting corruption enquiries without the Lt. Governor’s concurrence
• The Delhi High Court in its judgment delivered on 4th August 2016 held that Delhi continues to be a Union Territory despite Article 239AA. S.C said that the Lieutenant Governor to act independently of his Council of Ministers. As a result, all enquiries which were initiated by the Delhi Government without the concurrence of Lt. Governor were declared illegal, such as the enquiries into the issuance of CNG permit to vehicles, a financial enquiry into Delhi and District Cricket Association, among others. The concurrence of the Lt Governor became mandatory for all administrative decisions of Council of Ministers of Delhi.
• The Delhi Government challenged this decision of the Delhi High Court before the Supreme Court. On February 2017, the two-judge Bench hearing the matter, referred it to a five-judge Constitution Bench.
• On 4th July 2018, the Constitution Bench ruled that the Lt. Governor is bound by the aid and advice of the Council of Ministers.
• SC overturned the August 2016 judgment of the Delhi high court, (ruled that since Delhi was a Union territory all powers lay with the central government, not the elected Delhi government).
• Supreme Court laid down a few key principles:
• Delhi government has power in all areas (except land, police and public order).
• LG is bound by the aid and advice of the government in areas other than those exempted.
• The only exception was a provision to Article 239-AA, which allowed the LG to refer to the President any issue which doesn’t mean every issue on which there was a difference of opinion with the council of ministers. In that case, the LG would be bound by the President’s decision.
• Delhi Lieutenant Governor cannot act independently.
• It must take the aid and advice of the Council of Minister;
• The role of the L-G is different than that of a Governor.

AFTERMATH

Govt. of NCT Delhi (amendment)bill 2021 was passed where NCT Delhi Act 1991 was amended. In this bill the power and functions of council of ministers, legislative assembly and lieutenant governor was amended and more authority was given in the hands of LG which was perceived as a attempt to nullify the judgement of supreme court.

ADVANTAGES OF ATYPICAL FEDERALISM

Adaptability and Flexibility: A flexible framework that can adjust to the different demands of India’s various regions is made possible by atypical federalism. This adaptability makes it easier to handle regional problems and take into account the distinctive socioeconomic and cultural traits of various states. robust central government The central government of India is able to uphold the integrity and unity of the country because of the centralized characteristics of the federal structure. This is important because it helps thwart regional secessionist impulses in a nation with a diverse population of linguistic, ethnic, and cultural backgrounds.

 Consistent Policies: The national government can enforce standardized policies throughout the country, guaranteeing coherence in domains such as military, international relations, and economic planning. This keeps development gaps at bay and supports the preservation of a unified national policy.

Redistribution of Resources: To promote balanced economic development, the federal government can transfer resources more fairly among the states, particularly from wealthy to poorer areas. This promotes inclusive growth and lessens regional inequities.

Crisis Management: In times of national emergency, the federal government can respond swiftly and efficiently by acting forcefully and consistently. This has been demonstrated in the handling of internal security concerns, health emergencies, and disasters.

DISADVANTAGES OF ATYPICAL FEDERALISM

Erosion of State Autonomy: States’ ability to govern their own affairs is sometimes weakened by the centralization of authority. Local governance may be hampered by this and tensions between the federal and state governments may arise.

Over-centralization: Innovations and regional initiatives may be impeded by over-centralization. States may experience a loss of power, which could result in inefficiency and a lack of responsiveness to regional problems. This may make it more difficult for a region to flourish and adapt to local needs.

Unbalances in politics: Political imbalances resulting from central ruling parties prioritizing their own political interests over regional requirements can be caused by the central government’s control. Favoritism may ensue from this, marginalizing states ruled by the opposition.

Administrative Hold-Ups: States may have bureaucratic hold-ups as a result of centralized decision-making, as they must await central government approvals. This may hinder the overall functioning.

Discontent in the Region: Movements for more autonomy or even independence may result from a lack of enough autonomy and recognition of regional identities. Stability and national unity may be threatened by this.

CONCLUSION

The President along with the Parliament and the Supreme law of the land i.e, the Constitution, will govern all together to shape the Republic of the Country and in development to federalism further. The powers decentralized among the levels of the Govt. specifies the harmony of the Nation and tells that all have some sort of powers, because power when vested in one hand or one level could be misused. The typical and atypical federalism, the both can survive in the democracy when defined properly. It is the duty of the Central Govt. to supervise the same and not forget the true essence of what was in the minds of the Constitution framers. However, if it doesn’t work like that, the day is not far away when there will be unitary form of govt. instead of quasi federal and the constitution will merely be a body without a soul.

SUGGESTIONS

• Being, a very political topic, I believe the Parliament should divide the powers among the Centre and State in such a way that the goal of the Constitution is not leftover, and there is no such grudge left between the Centre and the State Govt.
• There should be a cooperative federalism instead of typical or atypical federalism.
• The interference by the Central Govt. in the affairs of State Govt. should be healthy and only when needed.
• There should be no tussle of power between the Centra and the State.

---

[1] Dicey, Law of the Constitution, Ch. III (138 et seq. 1952).

[2] Surendra Singh and Satish Misra ‘Federalism in India: Time for a Relook?’

[3] Anusha Singh, Development of Cooperative Federalism in India.

[4] Constitution of India, 1950.

[5] S. Mohd. Ibrahim Hadhee v. State of Madras, (1968) 21 SCC 378.

[6] In ref. on Berubari, AIR 1960 SC 845.

[7] State of Rajasthan v. Union of India, (1977) 3 SCC 592.

[8] S.R. Bommai v. Union of India, (1994) 3 SCC 1.

[9] State of Haryana v. State of Punjab, (2002) 2 SCC 507.

[10] Shamsher Singh v. State of Punjab, 2014 SCC OnLine P&H 18711.

[11] State of West Bengal v. Union of India, 1986 SCC OnLine Cal 109.

[12] Supra note 4.

[13] Idbi.

[14] State (NCT of Delhi) v. Union of India, (2016) 14 SCC 353

---

Author: Shahida Parween

---