Feb 22, 2011
Posted on Tuesday, February 22, 2011 by DEVESH PANDEY
It has been the matter of debate among the scholars that whether the constitution of India is completely federal or unitary in nature. But actually Indian constitution contains both features of a federal constitution and unitary constitution. But for the very clear picture of this conclusion first of all we have to know that what is the federal constitution and what is unitary constitution. What feature of Indian constitution makes it federal or what features makes it unitary. The question whether the Indian Constitution could be called a federal constitution troubled the minds of the members of the Constituent Assembly. This question cannot be answered without going into the meaning of federalism and the essential features that are evident in federal state.
In a federal set up there is a two tier of Government with well assigned powers and functions. In this system the central government and the governments of the units act within a well defined sphere, co-ordinate and at the same time act independently.
A unitary system is governed constitutionally as one single unit, with one constitutionally created legislature. All power is top down. A unitary state is a sovereign state governed as one single unit in which the central government is supreme and any administrative divisions (sub national units) exercise only powers that the central government chooses to delegate.
Federal Features of Indian Constitution
Supremacy of the Constitution: This is one of the federal features of the Indian constitution. The supremacy of the constitution means that both, the Union and the State Governments, shall operate within the limits set by the Constitution. And both the union government and the central government derive their powers from the constitution. Written Constitution The most important feature of a federation is that its constitution should be a written one. The Constitution of India is a written constitution is the most elaborate Constitution of the world.
Rigid Constitution: The constitution of India is a rigid constitution and this is one of the basic features of federal constitution. The procedure of amending the Constitution in a federal system is normally rigid. Indian Constitution provides that some amendments require a special majority. Such an amendment has to be passed by majority of total members of each house of the Parliament as well as by two-thirds majority of the members present and voting there in. However, in addition to this process, some amendments must be approved by at least 50% of the states. After this procedure the amendment is signed by the head of the state i.e; the President. Since in India important amendments can be amended through this procedure Hence, Indian Constitution has been rightly called a rigid constitution.
Division of Powers: In Indian constitution the powers of state and centre are clearly defined and there are very clear limits of both the centre and the state for law making powers. Our constitution enumerates three lists, viz. the Union, the State and the Concurrent List. The Union List consists of 97 subjects of national importance such as Defence, Railways, Post and Telegraph, etc. The State List consists of 66 subjects of local interest such as Public Health, Police etc. The Concurrent List has 47 subjects important to both the Union and the State such as Electricity, Trade Union, Economic and Social Planning, etc.
Supremacy and Independence of the Judiciary: Supremacy of judiciary is another very important feature of a federal state where there is an independent judiciary to interpret the Constitution and to maintain its sanctity. The Supreme Court of India has the original jurisdiction to settle disputes between the Union and the States. It can declare a law as unconstitutional, if it contravenes any provision of the Constitution.
Unitary Features of Indian Constitution:
In spite of the fact that the Indian Constitution establishes a federal structure, it is indeed very difficult to put the Indian Constitution in the category of a true federation. The following provision of Indian constitution makes it unitary
Union of States; Article I of the Constitution describes India as a ‘Union of States’, which implies two things: firstly, it is not the result of an agreement among the States and secondly, the States have no freedom to secede or separate from the Union. Besides, the Constitution of the Union and the States is a single framework from which neither can get out and within which they must function. The federation is a union because it is indestructible and helps to maintain the unity of the country.
Appointment of Governor: 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 The Centre may take over the administration of the State on the recommendations of the Governor or otherwise. In other words, Governor is the agent of the Centre in the States. The working of Indian federal system clearly reveals that the Governor has acted more as centre’s representative than as the head of the State. This enables the Union government to exercise control over the State administration.
Representation in the Legislature: The equality of units in a federation is best guaranteed by their equal representation in the Uppers House of the federal legislature (Parliament). However, this is not applicable in case of Indian States. They have unequal representation in the Rajya Sabha. In a true federation such as that of United State of America every State irrespective of their size in terms of area or population it sends two representatives in the upper House i.e. Senate.
Appointment on Key Positions: In addition to all this, all important appointments such as the Chief Election Commissioner, the Comptroller and Auditor General are made by the Union Government. Besides, there is single citizenship. There is no provision for separate Constitutions for the states. The States cannot propose amendments to, the Constitution. As such amendments can only be made by the Union Parliament. All India Services such as IAS and IPS have been created which are kept under the control of the Union. In financial matters too, the States depend upon the Union to a great extent. The States do not possess adequate financial resources to meet their requirements. During Financial Emergency, the Center exercises full control over the State’s finances.
Disturbances in the state: In case of disturbances in any State or part thereof, the Union Government is empowered to depute Central Force in the State or to the disturbed part of the State. Also, the Parliament, by law may increase or decrease the area of any State and may alter its name and boundaries.
Unified Judiciary: The federal principle envisages a dual system of Courts. But, in India we have unified Judiciary with the Supreme Court at the apex.
Power to make laws: The Constitution of India empowered the central government to make laws on the subjects in the state list. It is exercised only on the matters of national importance and that too if the Rajya Sabha agrees with 2/3 majority. The constitution establishes a strong Centre by assigning all-important subjects to the Centre as per the Union List. The State Governments have very limited powers.
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.
Emergency Provisions: The President of India can declare three different types of emergency under article 352, article 356 and article 360 for an act of foreign aggression or internal armed rebellion, failure of constitutional machinery in a state and financial emergency respectively.. During the operation of an emergency, the powers of the State Governments are greatly curtailed and the Union Government becomes all in all.
From the above discussion it is seen that the constitution of India neither is the complete federation nor it is completely unitary. It has the features of both. Sir Ivor Jennings was of the view that India has a federation with a strong centralizing policy. In the words of D.D.Basu, the Constitution of India is neither purely federal nor unitary, but is a combination of both. It is a union or a composite of a novel type. It is often defined to be quasi-federal in nature. Thus we can safely say that It is primarly Unitary having some unitary features.