Tag: Is Indian Constitution Federal in Nature

Is Indian Constitution Federal in Nature?

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The author i.e. Aviral Shrivastava is a first-year student of the Institute of Law, Nirma University. This article is being written with the view to erase the ambiguity regarding the nature of the constitution and is being illustrated in the simplistic view possible.

INTRODUCTION

India’s constitution has an illustrative history where it is described as a union of states, a Sovereign, Socialist, Secular and Democratic Republic with a parliamentary form of government and this parliamentary form of government which the constitution envisages is considered federal in structure with unitary features. It is the precedent or the foundational law of the country which ordains the fundamental principle on which the government (or the governance) of the country is based. It lays down the framework and principle functions of various organs of the government as well as the modalities of interaction between the government and its citizens.

Sudden discrepancies have aroused with regards to the nature of the constitution in the contemporary scenario where questioning relating to the true federalism is taking place. Though the Indian Constitution is quasi-federal in nature i.e. federal in structure and unitary in spirit but this notion has been slightly attacked when the pillars of federalism have started to vanish where the unitary spirit has overlapped the federal structure and this picture has raised the questions for the existence of federalism in India.

The thought of federalism is first to be surely known as it expresses a sort of government wherein the force is partitioned between the Centre and the corresponding states and which shows polarity or incongruity with a unitary government, where a balance is being implemented between the centre and state to cope up with the federal spirit of the

Solidly, in federalism, there is a two-level of Government with all-around doled out forces and capacities. The Central and the State governments work in coordination successfully keeping up parity and simultaneously acting autonomously. Consequently, this government political structure gives an established arrangement in keeping up solidarity and decent variety.

Federalism In India

While concerning the presence of Federalism, the essential substance which charms its place of presence is the way that federalism requests for the constitution of a country to be Suprema Lexa i.e. where it is considered as the incomparable rule that everyone must follow and its last translation is vested in the hands of an autonomous and solid court which is settled under the Article 131 of the Constitution of India which ensures the matchless quality of the constitution by shielding the balanced division between the centre and the states from the infringement from the unitary governments which is the most fundamental part for keeping up the bureaucratic standard as this pre-eminent power helps in administering the harmony between the centre and the states and along these lines building up an ideal request in the general public and furthermore for this situation the intensity of legal audit should be viewed as which sets up an equalization of forces between the centre and the states in the endeavor to forestall the upsetting of forces by any of the two.

It is well being noticed that the psychology behind federalism is a craving for an association without a unitary structure which is depicted by DICEY speaking to the unity of a state and the separability of its units yet this is no country on the world which totally satisfies the essential precincts of federalism.

It is relevant to take note of that in a nation there ought to be a harmony between the hypothesis and the use of law where the constitution goes about as the hypothesis and the government goes about as the application of law a few nations may have a federal constitution and some may have a federal government and accordingly, it brings a point that to decide the federal quasi-federal and non-bureaucratic nature of the nations it gets basic to watch or observe the federal formal constitution as well as its training is required to be found out.

With regards to India, it is important to note that it isn’t totally federal however having a unitary column installed in it where the conspicuousness has been given to the Union Governments and the division between the central governments and the states governments is appropriately adjusted by the text of the constitution where the constitutional provisions in India on the subject of the distribution of legislative powers regarding the matter of conveyance of federal powers between the Union and the States which are characterized under a few articles; the most significant being explicitly under articles 245 & 246 of the Constitution of India.[1] The Seventh Schedule to the Constitution of India characterizes and indicates the portion of forces and capacities between Union and States. It contains three lists; i.e. 1) Union List, 2) State List and 3) Concurrent List.[2]

Another fact which should be referenced is that due to these provisions the central government just as the state governments go about as free and juridical character which is corporate in nature and are given entire forces as for administration and legislation as indicated under the constitution where Article 245(i) comes to the scene which expresses that the Parliament can “make laws for the entire or any piece of the domain of India” and the state councils may correspondingly “make laws for the whole or any part of the territory of the State”,[3] where the union is given powers under the Union List, states under the state list and thirdly Concurrent list where the centre and the states both are given the simultaneous jurisdiction and thus our nation follows the substance of federal principle with respect to the division of forces.

Another fundamental attribute to be noted here is that neither the centre nor the states have the ability to change or alter the provisions relating the union and the state’s division i.e. unless a particular majority is the available amendment couldn’t be validated just when as determined under Art. 368 of the Constitution of India in regards to the Amendment methodology where two-third of the majority has been proposed by the procedure for the ratification.

Where in instances of serious issues in the states if the country as in India has the provision to coordinate in such a circumstance by the method of interstate disputes resolution rather the Centre surpassing the constrained powers of the state yet by the interstate coordination and participation where the balance between the centre and the states are directed by shared acknowledgement or mutual recognition where under the Articles 261, 262 and 263 an Interstate committee has been set up concerning build-up common collaboration i.e. mutual cooperation and to support solidarity and decent variety and cop up with a significant prerequisite of a federal Constitution.

Reasons behind ambiguity in the federal structure

Seeing the fundamental federal feature of our constitution something else is likewise being noted in the present contemporary situation which as political improvements rotates around the Citizenship Amendment Act and the National Register of Citizens (NRC) have outlined a portion of the significant breaks in the federalism include where the forces and the privileges of the states are at risk.    

With the introduction of outdated and unconstitutional rules, this principle has been abused as banning the collective assembly of more than four people shutting down the Internet in five states monitoring the students’ and young people’s social media activity; the incarceration of minors and the attacks on students and the young people damaging libraries in colleges have created a modern notion of the constitution in which certain obligations and unjust rules are imposed on states that have seriously eroded the federal pillar as this new image has shaken the equilibrium between the centre and its relationship between the state and which has not been officiated now and this has strongly been in derogation with Art. 245 and Art. 246.

Penal sanctions are also placed if the States are unable to comply with the Union’s clear and effective guidelines pursuant to Articles 256,257,353 and 360, which also contain emergency provisions, and if there is a violation on the part of the states, there are certain punishments which are formulated and these laws put greater weight on the side of the central government as compared with the states.

This causes a tussle between the state and the centre as could be illustrated as a fight between the Delhi Government and the Union governments where the federal structure could be well questioned as to the powers of the union government oversides or offsets the powers of the Delhi Government. And this violation of constitutional rights and values has also troubled the federal spirit where the independence of the states is not respected and is in contravention of the text of the constitution.

The law is also null and void by observing Article 13(2) which states that the State shall not make any law which removes or abbreviates any of the rights guaranteed under Part III of the Constitution, and to the extent of such contravention.[4] It is well being noted that such a provision is not being gratified in the present scenario where the nature of the constitution is somewhat moulded so as to have a solid unitary structure but that is not giving the same independent powers to the state thus affecting the federal pillar of our democracy. Another important point to note is that Federalism specifies the point of equal status that substantiates the equal opportunities for the states as well as the centre, imbibing the legal and corporate status without any kind of the inequality present in them. Indians were once in many scholarly editions described as Homo Hierarchicus, a species of human who most intensely practised inequality,[5] where there should be equality if not absolute but atleast there should be a balance in the powers between the centre and the state.

But observing the contemporary scenario seeing the new ruling government there is a clear observation that the laws made by the centre clearly support themselves rather than the state itself where the laws like CAA, NRC and NPR are without proper observance of the rights of the people.

Conclusion

It would be rightly concluded that the federal nature in our country is only present theoretically in our constitution and practically this is not followed by the governments because our unitary sphere is taking the larger part of the legislations in many sectors and thus causes the state to become dependent on the centre which snatches away their independence. It is also correctly stated that “our constitution will be both unitary and federal according to time and circumstances” and it, therefore, should be properly emphasised that, while the essence of the constitution is declared to be federal and unitary i.e. it is in fact quasi-federal which could also be substantiated as federal in structure and unitary in spirit.

Though it is being affirmed that the nature of the constitution is quasi-federal i.e. partly federal in nature but in the contemporary scenario it is pertinent to note that the federal pillar of our democracy is being shaken where the states’ rights are not being respected and they are trapped in a web of centres flawed laws which are in derogation with many of the human rights of an individual and the centre is playing a tyrannical role where the state’s recognition is not respected.

In the current pandemic situation, only a federal democracy could be able to cope up with such a situation as the proper relationship and a proper balance between the Centre and state relations is a very essential feature which needs to be noted as when such balance exists it definitely helps to make the implementation of such rules by the subjects of the state i.e. the citizens more suitable and apt.

[1] SEVENTH SCHEDULE TO THE CONSTITUTION OF INDIA, WIKIPEDIA.

[2] “SEVENTH SCHEDULE”. www.constitution.org.

[3] India Const. art. 245 cl. 1.

[4] India Const. art. 13 cl. 2.

[5] The Guardian view on India at 70: democracy in action.

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