Federation is the existence of dual polity. There are two governments in existence- e.g. Government of Federation (in India Union Government) and Government of Unit (in India- State Government). These two sets of Government do not subordinate with each other. They cooperate with each other and are independent to each other.
Indian Constitution resembles a federal constitution but in essence it is not a federal constitution. The unique feature of Indian constitution is the presence of features which are necessary for existence of a federation, at the same time there are provisions which make the Union Government powerful vis-à-vis that of State governments. Hence Indian constitution can be termed as “Quasi- federal” in nature and Indian Union can be called as “Centralized Federation”.
Former Chief Justice Beg, in State of Rajasthan v UOI, 1977 called the Constitution of India as ‘amphibian’. He said that ”....If then our Constitution creates a Central Government which is ‘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...”.
Likewise in S.R. Bommai v Union of India, the phrase “pragmatic federalism” was used. In the words of 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...”
Features essential for existence of Federal Constitution
There are certain features that are essential for the existence of a Federal Constitution. Some of the features which are essential for a federal arrangement and present in Indian constitution are as follows:
·Division/Distribution of Power
It is the fundamental and the most essential characteristics of the federation. The powers of a State are divided into federal and Unit governments.
In Indian constitution under 7th Schedule 61 items have been attributed to the State list upon which State Governments can make a law, there is a Union list containing 100 items upon which only Union Government can make a law.
·Supremacy of the Constitution
It means that the constitution is legally binding on both the Central and State Governments. Further neither the Central nor the State Governments can change the provisions of the Constitution that are related to the power and status of the government to enjoy.
·The Written Constitution
A written demarcation of division of power is necessary for smooth functioning of the Government. The Central Government shares power with the State government. Any Parliamentary constitution cannot be a federal constitution.
·Rigidity of the Constitution
A federal Constitution cannot be flexible. It is the substitute of corollary of Supremacy of Constitution. Supremacy of Constitution brings the rigidity to it.
Distinctive Features of Indian Federalism
There are features present in Indian constitution which are essential for a federal arrangement. At the same time there are features in the constitution which give an upper hand to the Central Government. The following are such features in Indian Constitution:
·There is no separate Constitution for the States
There is a single constitution for both the central and the States government. Therefore the States are limited in their power in conferring State citizenship and certain species rights on the citizens who are residents of the State which can be denied to the rest of the citizens of the country.
Article 352 (Proclamation of National Emergency)
When the national security of India or any part of its territory is threatened by war or external aggression or armed rebellion, the President can declare National Emergency. 44th Amendment Act, In case of national emergency the distribution of power is suspended and constitution functions as if it is a Unitary Constitution.
The Parliament can change the name, area or boundary of a State without the consent of the State concerned. Thus the States in India do not enjoy the right to territorial Inviolability.
7th Schedule of the Constitution (Distribution of Legislative Subjects)
The distribution is one sided and is heavily in the favor of centre. Union list contains the largest number of subjects, which are also most important. Almost all the tax subjects are in the Union list (except the Sales Tax).
Under this article the Rajya Sabha can pass a resolution supported by not less than 2/3rd of the members present and voting that in the National interest it is necessary that the Parliament shall legislate on the subjects under the State list. The Rajya Sabha can pass the resolution any number of times but each time for a period of not more than 1 year.
Article 356 (Proclamation of President Rule in a State)
When the President Rule is in operation, the Parliament is authorized to legislate on one or more subjects of State list for the State’s concerned. The law thus made under the President Rule will continue to be in force.
Residuary Powers (Article 248)
Any subject that does not belong to the Concurrent and State lists, belongs to the Residuary list and it belongs to Central Government.
Article 312 (Creation of an All India Service)
It provides for the creation of All India Services (who can function both as Central and State Services). The All India Services officers are recruited, trained and appointed by the Centre but they largely function under the State Government. It is they who largely control the administration of State. The State government cannot take disciplinary action against officers, except transfer. Any other action take removal from service or reduction in rank can only be controlled by the Central Government.
Article 360 (Provisions as to Financial Emergency)
It provides for financial emergency by centre over the country. When the Financial Emergency in force, the distribution of the financial resources between the Centre and State can be suspended by Centre and all the financial resources can be used by Centre to meet the emergency situation.
Indian constitution is a constitution sui generis. The constitution, on one hand contains features which are essentially required for a federal arrangement on the other hand there are features in the constitution which are biased towards the strong centre. Thus Indian constitution can be termed as Quasi federal in nature. However this should be kept in mind that these dual features are deliberately incorporated in the constitution so as to provide an arrangement which is suitable for the governance of a large population which is highly diverse.
The concept of Cooperative Federalism originated in Australian Constitution. The modern view of federation regards federation as a functional arrangement rather than mere division of powers between centre and State.
The concept of cooperative Federalism regards division of power not as an end in itself but one of the means to promote the prosperity and well-being of the people.
Cooperative Federalism means there should be a cooperative relation between centre and state and not confrontation. There should be harmony and not conflict. In Indian there are some constitutional mechanisms as also some extra constitutional mechanisms to foster the spirit of Cooperative federalism.
Doctrine of "Pith and Substance"
This doctrine is applicable in federal constitution and it is relevant in the areas of division of power between State and Centre. It is applied to test the legal validity of law by a legislative authority on a subject falling under its jurisdiction, but in the process the law touches upon the subject in another list.
In such cases of overlapping, according to Supreme Court as held in State of Rajasthan Vs Chawla in 1959, what is to be ascertained is the doctrine of pith and substance of enactment that is true object of legislation.
Supreme Court justified this doctrine because there cannot be any clear cut distinction between the powers of Centre and States. There is bound to be overlapping which can lead to the incidental encroachment of legislation which is not prohibited. A strict verbal interpretation could result in large number of laws getting invalid on the ground of overlapping.
Doctrine of "Colourable Legislation"
It is applied essentially in case of a federal constitution when discussion happens with regard to the legislative competence of a particular legislation. It is applied when the legislature in a particular case has transgressed its constitutional powers. Where the transgression may be direct, overt but it may also be disguised, covert and indirect.
It is to the latter class of cases that this doctrine is applied the legislature may appear to act within its power but in substance, it transgresses its sphere of competence.
Supreme Court held that the substance of law passed by the legislature is more important than the outward appearance of law. By applying this doctrine in Moopil Nair Vs State of Kerala, 1961 Supreme invalidated Travancore – Cochin Land Tax Act, 1955 on the ground that what could not be done directly cannot be done indirectly also.