FEDERAL AND UNITARY FEATURES OF INDIAN CONSTITUTION

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Federalism refers to that structure of Government in a country where there is a clear demarcation of powers between the Centre and the State Government. A truly federal constitution must envisage a clear-cut demarcation of governmental functions and the powers between the Centre and the regions as sanctioned under a written constitution.[1] In the Indian constitution there reside the features of both, the Federal Structure and the Unitary Structure, nature.

History of Unitary Structure in India

The history of the Indian nation shows that it always has a tendency to disintegrate when the Central Government becomes weak. This can be traced back to the Mughal era, when the Central Government of the Mughals become weak, the country immediately broke up into pieces[2]. The successors to Mughals were the Britishers, who were wise enough to see these factors which could make them strong.

At the time of independence, there were refugees from the West Punjab, Sind, Frontier Province, and Baluchistan and from the Eastern Bengal, and the economy of West Bengal and East Punjab cannot contain them[3]. Now where such a situation exists only a unitary state could impose its fiat throughout the length and breadth of India as the provincial Governments cannot feel their duty.

Independent India inherited a war-shattered and food-short economy and wartime food and price controls stressed the need for central action. Foreign exchange and import control, distribution of scarce commodities such as coal, steel, and cement, and regulation of inter-state trade and commerce necessary for price control could all be entrusted only to the union government[4]. Thus, more power was given to the Centre.

Unitary Structure of Indian Constitution

The Indian constitution does not explicitly use the term ‘federation’. Instead, Article 1 declares that India that is Bharat shall be a Union of states. The basic difference between a unitary system and a federal system is that in a unitary structure the demarcation of powers between the national and the sub-national governments is made by the national government whereas, in the later, the demarcation is made by a written constitution which is the source of authority of both the Centre and State Governments[5]. In a federal constitution, there is a division of powers between the Federal and the State Governments and both are independent in their own spheres. In India, the Seventh Schedule of the constitution lays down in great detail, in three lists, namely the Union List, the State List and the Concurrent list, the distribution of legislative powers between the union and the states[6]. Presently, the American Constitution is universally regarded as the best example of a federal constitution[7]”.

Unitary Features of Indian Constitution

1. Center-State Relations (More Powers in the hands of Centre)

“The relations between the Centre and the State Governments in India itself highlight the domination of the Centre over the State. There is a clear division of legislative power between Centre and State by the way of Lists, i.e., Union List, State List, and Concurrent List.[8]Powers related to residual subjects, that is those not covered by the three lists, are left with the union. Even in matters in the concurrent list, the constitution provides that the union government shall prevail[9]. The Constituent Assembly had two main purposes when bestowing extensive powers on the Union Government in the Union and the Concurrent Lists. One was constitutional flexibility. As per Ambedkar, Federalism suffered from rigidity and the nations adopting federal structure always sought to remove this disadvantage as once Australia attempted to do by conferring upon the Parliament of Commonwealth large powers of concurrent legislation. The authority of the Indian parliament as proposed in the Draft constitution was ninety-one matters in the Concurrent List. In this way, the draft constitution has secured greatest possible elasticity in federalism, which is supposed to be rigid in nature. The second purpose of these extensive powers was to enable the Union to meet the needs and to withstand the pressures of the times. Several documents were prepared for the Government which needed immediate action like agricultural production policy, the establishment of higher educational institutions, and food distribution. It was evident that if the Government is to fulfill these responsibilities, it must have the constitutional powers to do so[10].

Besides, Article 249 empowers the parliament to make laws with respect to any matter in the state list, if the council of states (Rajya Sabha) declares by a resolution supported by at least two-thirds of the members present and voting that it is necessary or expedient in the national interest. In other words, this Article of our Constitution empowers the Union Parliament to take up for legislation by itself any matter enumerated in List II (State List)[11]. Not only this, the Parliament can also invade the law-making power of List II of the State by Article 253 which talks about legislation for giving effect to international agreements. The effect of this article is that of a treaty, agreement or convention with a Foreign State deals with a subject within the competence of State Legislature, the Parliament alone, notwithstanding Art. 246 (3), the power of laws to implement the treaty, agreement or convention or any decision made at any international conference, association or other bodies [12].

Article 254 states that in case of inconsistency between the law made by the Parliament and law made by the State, the Union Law will prevail and the State law to the extent of the inconsistency be void”.

2. Centre’s dominance in time of Emergency

“The basic idea of the constitutional framers was that India would be a Federal in the peacetime and in times of emergencies, India would be a Unitary. Hence, the Union has been given exclusive powers in case of Emergency. By the virtue of Article 250 the Parliament, during an emergency, can legislate upon any matter in the State list.[13].

The proclamation of emergency is made by the president under Article 352 if he is satisfied that a grave emergency exists whereby the security of India or any part of India is threatened either by war, external aggression or armed rebellion. The effect of the proclamation is that the Centre’s executive power is extended. Article 353 states that during the proclamation of emergency the power of Union shall extend to giving directions to the State and this power may even extend to a State other than the State in which the proclamation is in operation[14]. Article 356 states that in case of breakdown of constitutional machinery President issues a proclamation and assume to himself all the functions of the Governor and State Government. He may also declare that the powers of the State Legislature shall be exercisable under the authority of Parliament. 

From the above discussion, it is now clear beyond doubt that during any emergency, it is the Centre which comes into power and the State government’s role is abandoned till the proclamation of emergency is still in existence. In spite of having a clearly written constitution, a scope of flexibility is left so as to meet the demands of the situation. Thus, highlighting an important aspect in the Unitary feature of the Constitution.

3. Single Citizenship

4. Single Constitution

5. Unity in Judiciary

Conclusion

It can now be safely concluded that the Constitution of India is based on the principle of Federalism with a Unitary bias at the Centre. Thus, it is acceptable to call it as a quasi-federal constitution. When the Founding Fathers of our Constitution were preparing the Draft Constitution, India was growing through a number of problems, both internal and external. Internal problems included lack of agricultural produce, poor economic growth and there was a need for industrialization, whereas there were constant external threats from Pakistan. Thus, framers thought that to tackle the situation, the Centre must be entrusted with more Constitutional powers in order to discharge its duties. Austin had pointed out that it was due to flexibility (which was lacking in Federal structure) and the ability to withstand though pressure situations, the framers opted for a Unitary bias, keeping Federalism as the basis of the Constitution. Also, it important to incorporate the positive features of the Federal structure in our Constitution which facilitated better management of problems, taking the governance closer to people. The federal structure also preserves diversity and there are fewer chances of corruption because there would be more checks and balances. It is also important to take a note of the S.R. Bommai’s case in which the majority were of the opinion that the States are sovereign in their spheres.  The emergency provisions, where the Centre assumes the power, are the exceptional situations; not the general rule and the exceptions cannot be regarded as the rule. Finally, in my opinion, it would be correct to say that India is quasi-federal because its neither totally Federal in nature, not it is Unitary.


[1] B.N. Srikrishna, Beyond Federalism, Ind. Int. Centre Quarterly 386, 390 (2012).

[2]Budh R. Sharma and Bodh R. Sharma, Position of the Centre in New Indian Constitution, The Indian Journal of Political Science 57, 57 (1950).

[3] Id. At 58.

[4]Supra note 2, at 1866.

[5]V.M. Dandekar, Unitary Elements in a Federal Constitution, Economic and Political Weekly 1865, 1865 (1987).

[6]Id.

[7] J.N. Pandey, Constitutional Law of India 17 (49th ed. 2012).

[8] Art. 246, The Constitution of India, 1950.

[9]Supra note 2.

[10] Granville Austin, The Indian Constitution 247 (34th ed. 2019).

[11] Supra note 16, at 1694.

[12]H.K. Sahara, The Constitution of India An Analytical Approach 935 (4th ed. 2012).

[13]Id. At 932.

[14] Supra note 4, at 750.


Unitary Features of Indian Constitution

Vakush Garg

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Vakush is very down to earth person with a hint of shyness. Being comfortable with everyone, he loves to hang out with his small entourage. His legal writing is impeccable and his talents can’t be objected. For any clarifications, feedback, and advice, you can reach him at vakushgarg123@gmail.com


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