The Ministry of Home Affairs has recently notified that it has decided to extend the jurisdiction of the Border Security Force (BSF) up to 50 km inside the international borders in Punjab, West Bengal and Assam. Initially, the jurisdiction extended up to 15 km but the recent order allows the central forces to undertake search, seizure and arrest within a larger stretch of the aforementioned States. Some of the States concerned, termed the move as a “direct attack on federalism”. This has reignited debates over the perennial issue of federalism and its standing in the Indian constitution.
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What is federalism?
‘Federalism’ refers to the division of powers between the central and the provincial units. Usually, in a federal setup, the government is organised in two tiers- one at the centre, another at the state level and the powers and functions are assigned to each accordingly. The two tiers of the government work in coordination as well as independently to reach the common national goals.
Is India a federal state?
This question has been a matter of debate for a long time. The Indian Constitution has both federal and unitary features and is often termed quasi-federal.
What is the meaning of quasi-federal?
A quasi-federal system is one where there is an unequal power distribution between the centre and the states. It also refers to such a system of government where both centralising tendency and distribution of powers coexist.
How is India a quasi-federal state?
- In a federation, there is an equal power distribution between the centre and the states. Moreover, in a true federation like that of the USA, the individual units or states have the power to secede from the union.
- If we take the case of India, Article 1 of the Constitution of India defines India as a “Union of States”. This means that India is a single unit comprised of small individual units called States.
- However, nowhere in the Constitution, it has been mentioned that India is a federation. It means that the Union of India is indestructible and no State in India has the power to secede from the union.
- Moreover, the Indian Constitution has both federal and unitary features. The federal features give the States power to run the administration and take decisions as per their convenience while the unitary features make the Centre more powerful in certain aspects. This mix-up of unitary and federal features and unequal power-sharing between the Centre and the States made eminent professor – K.C Wheare describe India as “a quasi-federal state”.
- In the words of D.D Basu, the Constitution of India is neither purely federal nor unitary, but it is a combination of both.
- If one goes through a careful analysis of the Constitution of India, one can conclude that while federalism is one of the basic features of the Indian Constitution, the Union is permanent and indestructible. In every federal feature of the Indian constitution, there is an ultimate centralizing force that exists and thus it would not be wrong to call it a “quasi-federal state”.
- In S.R. Bommai v Union of India (1994), the Supreme Court of India held that the absence of the terms ‘federal’ or ‘federation’ and the presence of unitary features such as residuary powers, single citizenship, integrated judiciary, etc can help us conclude that the Constitution of India is more ‘quasi-federal’ than ‘federal’ or ‘unitary’.
- A similar opinion was conveyed in Sat Pal v State of Punjab case.
What are the federal features of the Indian Constitution?
- Division of powers between the Centre and the States
- One of the essential features of federalism is the division of powers between the two levels of government.
- Those matters that are of national importance and where a uniform policy is desirable in the interests of the individual units, the Centre is provided with the responsibility to legislate and administer. Those matters of local concern are left with the States.
- The Seventh Schedule of the Indian constitution contains three legislative lists which enumerate subjects of administration. The Lists are: –
- Union List – It comprises subjects like defence, railways, posts and telegraph, currency etc. The List includes those subjects where only the central government is empowered to legislate.
- State List – It comprises subjects like public order, police, public health, agriculture etc. Only the State governments are entitled to legislate on such subjects.
- Concurrent List – This List comprises those subjects on which both the Centre and the States are entitled to legislate. These include criminal law, marriage, divorce, trade unions, electricity etc.
- This is done to ensure that there is no blurring of the boundary line between the Centre and the States’ powers to legislate and administer and there is no encroachment on each other’s functions.
- Bicameral legislature
- The Indian constitution provides for a bicameral legislature at the Centre. The Parliament of India consists of the Lok Sabha and the Rajya Sabha.
- The Lok Sabha consists of elected representatives from all over the Indian territory whereas the Rajya Sabha consists of representatives elected by State Legislative Assemblies.
- The Upper House or Rajya Sabha represents and protects the rights of the States in the federal policy.
- Supremacy of the Constitution – In a federal structure, it is important that both the union and the states derive their strength from a supreme source. The supreme source of the power of the Union and the States in India is the Indian constitution. No organ of the state can violate any provisions of the Constitution. If at any time, any provisions are violated or any State’s rights are encroached upon, the law is there to ensure that the values of the constitution are upheld.
- Written Constitution
- To ensure that division of powers and supremacy of the constitution is adhered to, there is a dire need for a written constitution where the scope of the central and individual units have been mentioned. Thus, the constitution-makers drafted the Constitution of India into a written document.
- All the provisions of the constitution have been discussed elaborately defining the scope of the powers of the Centre and the States to avoid any confusion. If it were not so, there would have been chaos, misunderstandings and conflicts between the Centre and the States who would seek to cross over each other’s line of authority.
- Rigid Constitution
- Another prominent feature of a federation is that the source of the strength of the federations is rigid and unalterable.
- If a constitution is rigid, no authority or the organ of government can alter it easily to serve its vested interests. The Indian constitution is a rigid one.
- However, it does not mean that it cannot be altered. To change or amend those provisions where States also have a stake, the Indian constitution provides for a special process to be followed by the Parliament.
- Such provisions can be amended only if the amendment is passed by a two-thirds majority of the members present and by voting in the Parliament, and is ratified by at least one-half of the States.
- Independent judiciary
- The judiciary in a federation needs to be independent and impartial so that whenever there is a dispute between the central and individual units, it can resolve them.
- The Supreme Court of India is the federal tribunal that can dissolve all the disputes between the Centre and the States under Article 131 except for water disputes.
Unitary features of the Indian Constitution
- Single Constitution and a strong Centre
- The constitution-makers envisaged a single constitution for the Centre and the States to promote the unity and integrity of India.
- Article 2 and 3 of the Constitution, give the power to the Parliament to
- redraw the political map of India;
- to create and abolish the states, change the boundaries of the States or
- even change their names.
- Additionally, the Constitution of India enables only the Parliament to amend the constitution when the need arises. However, in certain cases, the approval of half of the States is needed.
- The Constitution also gives power to the Parliament to make laws in the State list if Rajya Sabha passes a resolution with a 2/3rd majority.
- Similarly, when an emergency is declared, the Parliament gets concurrent legislative power to make certain laws under the State List and if there is a conflict between the two, the central law prevails.
- Single citizenship
- The Constitution of India provides for single and uniform citizenship despite practising federalism.
- Unlike the United States of America where the citizens enjoy dual citizenship and owe allegiance to both states and the centre, Indian citizens only owe allegiance to the Indian Union.
- Any citizen of India, irrespective of his birth or residence, is entitled to enjoy civil and political rights throughout India in all States and Union Territories.
- Unified judiciary
- The Indian constitution established a unified judiciary with a pyramidical structure where the Supreme Court of India occupies the apex position. Its decisions are bound to be followed throughout the nation.
- The decisions and verdicts passed by the Supreme Court are binding on any court in India.
- This is done to ensure integration, consistency and cohesion in the entire judicial system of the country.
- Office of Governor
- The President of India appoints governors of the State on the advice of the Union executive.
- The Governor is an agent of the Centre in the States.
- He/she ensures that there is no breakdown of the constitutional machinery in the States and if in any case, it occurs, he is supposed to report it to the central government.
- The Governor also enjoys some discretionary powers such as withholding a bill for the consideration of the President.
- Emergency powers
- Only the central government has the power to declare an emergency on various grounds under Articles 352, 356 and 360.
- The emergency provisions give extraordinary power to the Centre to deal with specific situations.
- Residuary powers with the Centre
- Those subjects which do not find a mention in the three lists of the Seventh Schedule of the Indian Constitution are supposed to be legislated by the central government.
- This also points out the unitary bias of the Indian constitution.
What are the advantages of having a quasi-federal state?
- The distribution of powers between the Centre and the States allows the individual units to function independently and autonomously. Similarly, a strong Centre ensures national integration. In a diverse country like India, a strong centre is a necessity to hold all the voices and opinions together.
- Federalism also ensures a better understanding of local issues and demands. The State representatives in Rajya Sabha voice the local concerns time and again and thus help the Centre in understanding the regional issues better.
- The listing of several issues in the Union List helps in the uniform and even implementation of national programmes which help in attaining the national goals. If the States were left with achieving various welfare targets, it would have led to uneven fulfilment of welfare goals.
- Allowing the individual units to take part in administration helps in raising citizen participation and makes the administration more efficient and responsive to the needs of citizens.
Potential pitfalls of having a quasi-federal state
- Conflict of authority is the most prominent issue, a quasi-federal state faces. The central and the provincial units often intend to assert their power which can be seen in various instances in India where States voice concerns again laws passed by the Parliament.
- Abuse of power by a strong centre is another pitfall. The stronger Centre in India often tends to abuse its powers through Governors by imposing President’s Rule in States ruled by opposition parties even when it is not required.
- Furthermore, by using the residuary powers, the central government often crosses the boundary lines and passes such laws where the consent of States would have been necessary.
- Powers in the hands of individual units often lead to rising regionalism over patriotism. States tend to focus more on regional goals and aspirations which can be contrary to national goals and may eventually lead to secessionist demands.
- Lack of accountability on the part of the Centre and States is another problem. When powers and functions are divided, it becomes easier for both parties to blame each other for policy failure and lack of development. This hampers the overall development of a nation.
The Indian constitution and its institutional arrangement have been trying very well to ensure that the federal and unitary features of the Indian polity work in coordination to achieve the ultimate goal of ensuring equality and justice to its citizens. However, it also has potential pitfalls which need to be addressed by introducing gradual reforms in such a manner that the idea of cooperative federalism ultimately reigns.
Q. Is India a quasi-federal democracy? Substantiate your answer with suitable arguments.