Q. Why is the Constitution of India called quasi-federal? [1993]
India’s Constitution has been described as ‘quasi-federal’ by K C Wheare. The reason behind use of such metaphor is that the Indian constitution contains the features of both unitary and federal form of government. Further, it is heavily tilted towards the unitary form. This feature of federation with strong center is taken from the canadian constitution.
Reason:
- It is difficult to put our Constitution in any strict mould of a federal or unitary type; it has features of both:
- It contains all the usual features of a federation, viz., two government, division of powers, written Constitution, supermacy of Constitution, rigidity of Constitution, independent judiciary and bicameralism.
- It also contains a large number of unitary or non-federal features, viz., a strong Centre, single Constitution, single citizenship, flexibility of Constitution, integrated judiciary, appointment of state governor by the Centre, all-India services, emergency provisions, the residuary powers vest in the Union and so on.
- As Dr. Ambedkar said, rigidity and legalism were the two serious weaknesses of federalism. The Indian system was unique in that it created a dual polity with a single Indian citizenship.
- It could be both unitary and federal according to requirements of time and circumstances.
- Under article 249, the Union Parliament can invade the State List.
- Under articles 356 and 357, on the ground of failure of constitutional machinery in any State, all its executive and legislative powers may be taken over by the Union and under articles 352 to 354, the Constitution can be converted into an entirely unitary one inasmuch as during Proclaimation of Emergency, the executive and legislative powers of the Union extend to matters even in the State List.
- Finally, under articles 2,3 and 4, new States may be formed and areas, boundaries or names of existing States altered by the Union Parliament by ordinary law passed by simple majority votes. The concurrence of States is not needed for the formation and unmaking of States and Union Territories.
- e.g. converting a State of J&K into a Union Territory has also been performed.
- Reasons for this unique unitary-federal mix are to be found in the constitutional history of India, the sheer size of the country and in the nature of her complex diversities based on religion, language, region, culture etc.
- In legislation, there is a Concurrent List, unlike in the U.S., which outlines the powers of the federal government, and leaves any matter not mentioned in it as the legislative field for the States. In India, the residuary powers of legislation, that is the power to make law in a field not specified in the Constitution, is vested in Parliament, whereas in the U.S., residuary powers are with the States.
- Further, in fiscal matters, the power of the States to raise their own resources is limited, and there is a good deal of dependency on the Centre for financial assistance.
- Laws related to fundamental right can only be enacted by Parliament and not by state legislature.
- Article 1 of the Constitution describes India as a ‘Union of States’. According to Dr B R Ambedkar, the phrase ‘Union of States’ has been preferred to ‘Federation of States’ to indicate two things:
- The Indian federation is not the result of an agreement among the states like the American federation; and
- The states have no right to secede from the federation. The federation is union because it is indestructible
- The framers adopted the federal system due to two main reasons —the large size of the country and its socio-cultural diversity. They realised that the federal system not only ensures the efficient governance of the country but also reconciles national unity with regional autonomy.
The text of the Constitution does not use the term ‘federal’ or ‘federation’. The Supreme Court has also spoken of the Indian Union as ‘federal’, ‘quasi-federal’ or ‘ambhibian meaning sometimes ‘federal’ and sometimes ‘unitary’. Due to these reasons the Indian Constitution is also described as ‘federal in form but unitary in spirit’.
However, in S R Bommai case, the supreme court laid down that the Constitution is federal and characterized federalism as its ‘basic feature’. It also held that “within the sphere allotted to them, the states are supreme. The fact that during emergency and in certain other eventualities their powers are overridden or invaded by the Centre is not destructive of the essential federal feature of the Constitution. They are exceptions and the exceptions are not a rule.” Court also said that the federalism in the Indian Constitution is not a matter of administrative convenience, but one of principle.
In fact, the federalism in India represents a compromise between the following two conflicting considerations:
- normal division of powers under which states enjoy autonomy within their own spheres; and
- need for national integrity and a strong Union government under exceptional circumstances.
The following trends in the working of Indian political system reflects its federal spirit:
- However, despite these unified tendencies the Centre is heavily dependent upon the states for implementation of its policies.
- At times this has led many state governments to successfully defy the directives of the Union. A classic example of the persistent defiance of the Union’s directive by the state governments has been their refusal to levy taxes on agricultural income which the Centre has recommended many times and has also been recently supported by the proposal of the Raj Committee.
- This has led many scholars to characterize India as an example of cooperative federalism.
- The inter-dependence of the Centre and states in India is responsible for a dual process of centralisation and decentralisation-centralisation in response to the exigencies of national planning, and decentralisation as a result of Centre’s dependence upon the states for administration of its programme.
- Territorial disputes between states, for example, between Maharashtra and Karnataka over Belgaum;
- Disputes between states over sharing of river water, for example, between Karnataka and Tamil Nadu over Cauvery Water;
- The emergence of regional parties and their coming to power in states like Andhra Pradesh, Tamil Nadu, etc.;
- The creation of new states to fulfil the regional aspirations, for example, Mizoram or recently Jharkhand;
- Demand of the states for more financial grants from the Centre to meet their developmental needs;
- Assertion of autonomy by the states and their resistance to the interference from the Centre;
- Supreme Court’s imposition of several procedural limitations on the use of Article 356 (President’s Rule in the States) by the Centre.
Even though the States are sovereign in their prescribed legislative field, and their executive power is co-extensive with their legislative powers, it is clear that “the powers of the States are not coordinate with the Union”. This is why the Constitution is often described as ‘quasi-federal’.
Note:Why is it said that India has asymmetric federalism?
- The main forms of administrative units in India are the Centre and the States. But there are other forms, too, all set up to address specific local, historical and geographical contexts. Besides the Centre and the States, the country has Union Territories with a legislature, and Union Territories without a legislature.
- When the Constitution came into force, the various States and other administrative units were divided into Parts A, B, C and D.
- Part A States were the erstwhile provinces,
- while Part B consisted of erstwhile princely states and principalities.
- Part C areas were the erstwhile ‘Chief Commissioner’s Provinces’. They became Union Territories, and some of them initially got legislatures and were later upgraded into States. Himachal Pradesh, Manipur, Tripura, Mizoram, Arunachal Pradesh and Goa belong to this category.
- Puducherry and Delhi have legislatures, while the other territories under the Centre do not have legislatures or a ministerial council to advise the administrator. Even between Puducherry and Delhi, there is a notable difference. Puducherry has legislative powers on any matter mentioned in the State List or the Concurrent List, insofar as it applies to the Union Territory. Delhi, which has the same field, has three further exceptions: police, land and public order are outside its purview. However, Parliament has overriding powers over any law made by the Assembly in the Union Territories.
- Puducherry has one more unique feature. Despite being a single administrative unit, the Union Territory is ‘non-contiguous’. That is, its territory is not limited to one extent of land. Besides Puducherry and its adjoining areas, it has enclaves located within other States: Karaikal (within Tamil Nadu) Yanam (within Andhra Pradesh) and Mahe (within Kerala).
- Just as the Centre and the States do not have matching powers in all matters, there are some differences in the way some States and other constituent units of the Indian Union relate to the Centre. This creates a notable asymmetry in the way Indian federalism works.
