August 13, 2009

Distinctive Features of Indian Federation - Chapter 2 Group 1 & Group 2

A typical federation ought to satisfy the following conditions:

(i) Division of powers
(ii) Supremacy of the Constitution
(iii) Written Constitution
(iv) Rigid Constitution
(v) Special judiciary
(vi) Dual polity

Now let us examine how and to what extent the Indian Constitution fulfills these tenets of federalism:

In Short the Distinctive Features of Indian Federation are –

(i) Division of powers: It is a union of 18 States and 10 Union Territories. The latter are administered by the Centre. The federal character extends to all the States. Distribution of the subjects of administration between the Centre and the Federating Units is an essential requisite of a federation.
The Indian Constitutional clearly makes this division of subjects. Three different lists have been brawn up, viz: The Union List, The State List and The Concurrent List.
Both the Union Government and the State Governments are autonomous and independent within the spheres of powers allotted to them by the Constitution. In the Union List, only the Parliament can make laws.
In the Concurrent List, both the Parliament and the State Legislatures make laws but in case of conflict, the Union Law prevails. In the State List, normally, the State legislatures make laws.

(ii) Supremacy of the Constitution: The Constitution is supreme law of the land. Both the Union Government and the State Government derive their authority directly from the Constitution and no authority in India can go against the Constitution.

(iii)Written Constitution: India possesses a written Constitution which is another essential of a federation. Longest written constitution - 447 articles, 26 parts, 12 schedules.

(iv)Rigidity of the Constitution: Every federation has more or less a rigid Constitution. The Constitution of the Indian Republic to some extent satisfies this condition as well. The Constitution provides for a special procedure with regard to its amendment. The Union Legislature of the State Legislature cannot amend it in an ordinary legislative procedure.
Those provisions which deal with the federal features of the Constitution can be amended only after ratification by at least half of the State Legislature.

(v)Independent Judiciary: India possesses a Supreme Court which acts as a guardian and interpreter of the Constitution. The existence of a Federal Court or a Supreme Court with special powers is always essential for a federation.
The Indian Constitution satisfies this condition, too. It gives powers to the Judiciary to declare laws ultra vires if they are unconstitutional.

(vi)Dual polity: The Indian constitution establishes a dual polity with a double set of governments, i.e. Central Government and State Governments. The sphere of authority of each part is clearly defined in the Constitution.

However, there are certain provisions that affect its federal character.
1. Appointment of the Governor of a State
Art 155 and 156 provide that the Governor, who is the constitutional head of a State, is to be appointed by the President and stays only until the pleasure of the President. Further, that the Governor can send the laws made by the state for assent from the President, who can veto the law. It should be noted that Governor is only a ceremonial held and he works on the advice of council of ministers. In past 50 yrs, there has been only one case (re Kerala Education Bill), where amendments to a state law were asked by the center too after the opinion of the Supreme Court. Thus, it does not tarnish the federal character and states are quite free from outside control

2. Power of the parliament to make laws on subjects in the State list.
Under art 249, center is empowered to make laws on subjects in the state list. On the face of it, it looks a direct assault on the power of the states. However, this power is not unlimited. It is exercised only on the matters of national importance and that too if the Raja Sabah agrees with 2/3 majority. It should be noted that Raja Sabah is nothing but the respresentaativeof the states. So an approval by Raja Sabah means that States themselves are giving the power to the center to make lawn that subject.
3. Power to form new states and to change existing boundaries
Under Art 3, center can change the boundaries of existing states and can carve out new states. This should be seen in the perspective of the historical situation at the time of independence. At that time there were no independent states. There were only provinces that were formed by the British based on administrative convenience. At that time States were artificially created and a provision to alter the boundaries and to create new states was kept so that appropriate changes could be made as per requirement. It should be noted that British India did not have states similar to the States in the USA.
4. Emergency Provisions
Center has the power to take complete control of the State in the following 3 situations:
1. An act of foreign aggression or internal armed rebellion (Art 352)
2. Failure of constitutional machinery in a state (art 356)
3. Financial Emergency (art 360)

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