Is the Indian Constitution federal, unitary or quasifederal? The members of the Drafting Committee of the Constituent Assembly of India called it federal. But there are jurists who dispute this title. It is, therefore, imperative to ascertain, what is a federal Constitution and what are its essential characteristics? However, the answer to this question is compounded by the fact that there is no agreed definition of a federal State and it is customary with scholars on the subject to start with the model of the United States, the oldest (1787) of all federal Constitutions in the world, and to exclude any system that does not conform to that model from the nomenclature of ‘federation’. But it is generally agreed that whether a State is federal or unitary is one of degrees and whether it is a federation or not depends upon the number of federal features it possesses.

A federation has well-established dual polity or dual form of Government viz., the Federal Government and the State Governments. The field of Government is divided between the Federal and State Governments, which are not subordinate to one another but co-ordinate and are

independent within their allocated spheres. Therefore, the existence of co-ordinate authorities independent of each other is the gist of the Federal Principle.

Federal nature of the Indian Constitution

What’s Federalism? Before do we discuss the very nature and stand of Indian Constitution among the family of federations, it becomes paramount to first of all know about the concept of federalism; what it entails or why a federation is constituted after all. To put it straight, we can argue that Federalism is both an ideological principle and political form or structure. Hence, being part of a broader ideological principle, federalism, recognizes the need of a weaker government by which we mean that it stresses upon decentralization rather than centralization of powers at any given point, a must for ensuring Constitutionalism in any country. That is why, federalism as an ideological principle always refers to the existence of such political and legal structures that distribute power territorially within a state so that powers do not remain concentrated at any single, generally central government. Although, in every federation this distribution of power is generally along two lines i.e. territorially as well as subject wise. In fact, in its traditional meaning, federalism has also been taken to imply reciprocity or mutuality meaning thereby that it envisages a kind of competitive federalism under which two levels of the governments are to compete with each other for powers which today has become an outdated concept and is hardly recognized anywhere.  This was what that was reflected in the original US federation until it underwent a transformation keeping in view the exigencies of the time stirred by the changing nature of the state. The epithet of Indian Constitution being a quasi- federal on the part of some Constitutional experts was actuated mainly by this comparison. No doubt, as an ideological principle, federalism also recognizes the element of diversity and pluralism in a society and thus calls for distribution of powers territorially in a manner that the local subjects handling becomes a domain of the regional governments.

To give effect to these ideological principles, thus comes the political form in which the federalism is reflected. It calls for the existence of two distinct levels of government neither of which is legally or politically subordinate to each other. In this sense, federalism always envisages the notion of shared sovereignty, a feature glaringly manifested in the classical federations of the kind of USA, Australia, Belgium or Canada etc. but as stated above, none of them have survived today in their classical form for obvious reasons. Nevertheless, one feature is profound in the concept of federalism in that it differs from another analogues concept called as devolution which does not provide for any share in sovereignty insofar as the regional governments or bodies are concerned.

Having said that, we can easily point out the chief strengths of federalism so as to answer the question, why federalism?  Undoubtedly, one of the chief strengths of federalism is that unlike the unitary systems in which the sovereignty is concentrated in a single, central authority, federalism tend to give regional or local interests a constitutionally guaranteed political voice by entrenching the regional powers in a written Constitution. That is why a written Constitution delineating the powers of the regional or state governments becomes a sine qua non of a federation. Secondly, the strength or advantage of federalism also stems from the fact that by diffusing government powers both territorially and functionally, it creates a limited or a weaker government by creating a network of checks and balances that certainly is a measure of protecting individual liberty. And finally, federalism indeed provides an institutional mechanism for promoting unity and integrity in a country that is not only vast in size, but highly diverse as well. This is accomplished by addressing and accommodating the regional ethnicities and cultures through the powers to regulate such matters being vested in the regional governments…

The Indian Federation: Why different labels? While it has been recognized at all hands and as also been mentioned just above, that the crux, the pivotal point, of a federal constitution is the division of powers and functions between the Centre and the regions. In short, the whole structure of a federal system continues to revolve around this central point.

A study of the federations now existing in the world shows that there is no fixed formula, or a set pattern, for division of powers between the Centre and the regional governments. Usually certain powers are allotted exclusively to the Centre; certain powers are allotted exclusively to the regions, and there may be a common or concurrent area for both to operate simultaneously.

In colonial India, the foundation for a federal set up was laid in the Government of India Act, 1935. Though in every respect the distribution of legislative power between the Union and the States as envisaged in the 1935 Act has not been adopted in the Constitution, but the basic framework is the same. No doubt, then to call GOI-Act 1935 as a blue print of India’s’ federation to some extent.

A basic test applied to decide what subjects should be allotted to the one or the other level of government is that functions of national importance should go to the Centre; and those of local interest should go to the regions. This test is very' general, sort of an ad hoc formula, and does not lead to any uniform pattern of allocation of powers and functions between the two tiers of government in all federal countries. The reason for this lack of uniformity is that what is of general or national importance, and what is of local importance, cannot be decided on any a-priori basis. Certain subjects like defence, foreign affairs and currency, are regarded as being of national importance everywhere and are thus given to the Centre. But, beyond this, what other subjects should be allotted to the Centre depends on the exigencies of the' situation existing in the country, the attitudes of the people and the philosophy prevailing, at the time of constitution-making, and the future role which the Centre is envisaged to play.

The circumstances and considerations governing the scheme of division of powers in a federation vary from place to place and time to time. The pattern of division of functions and hence, the status of the respective governments vis-a vis each other in any federal country is largely conditioned by the interaction of two contending and conflicting forces especially at the time of Constitution making; one that is favouringcentralization resulting in a federal union and promoting a strong centre, and the forces supporting decentralization, local or particularistic tendencies born of such factors as ethnic, religious, cultural, linguistic and economic, which manifest in powers being given to regional governments. The scheme which finally emerges in a federation is the resultant of the balance of these conflicting forces at the time of the constitution making. In our country both these forces were manifest at the time of Constitution making and found their reflection in the Constitution. Although, the bigger force was indeed felt in the desire for making a strong centre keeping in view the separatist forces operating in the country and the recent bitter experience of having witnessed the partition of the country mainly, on account of a weak centre. The makers did not wish to experience another partition of the country or to witness any occasion of centrifugal forces raising their ugly head. Hence, being astute and pragmatic scholars, they eventually settled down constructing a federation that was and is sufficiently accommodative of the national interest and regional diversities. Hence, the bottom line is that the Constitution makers constructed a federation in a manner that while recognizing the inherent advantages that a federation yields in respect of accommodating the regional diversities, Indian federation has taken a step further by unshackling itself from the rigidities that otherwise are found pronounced in a traditional federation. In fact, the major focus of the makers was to promote utmost cooperation and comity among the federal units within the federal framework so as to respond to the needs and contemporary challenges that the country might face in the times to come. In this sense, it may not be out of place to call Indian federation as a classic example of as what a renowned Constitutional expert, Granville Austin has remarked, cooperative federalism. It thus becomes pertinent to throw some light on this analogues concept of cooperative federalism so as to understand fully the very nature of Indian federation…

What is Cooperative Federalism?  

As the name indicates, cooperative federalism essentially denotes a functional federation in a manner that the various governments in a federation although, enjoying their own functional autonomy, must act in concert rather than at cross purposes so that the overall welfare of the country could be ensured after all, the country is one and its people constitute an integral whole living under the same supreme law of the land.

The concept of cooperative federalism derives its sustenance from the fact that in a federation although there is a division of functions between the two levels of the governments and the area for action for the respective government is also specifically earmarked, but the fact remains that a federation after all, is not worked on a piece of paper. Instead, a functional federation does affect the lives of the people either in relation to their rights or the various activities they might engage in and what if the various governments were to act in water tight compartments as if they are landlocked islands thereby, retarding the movement of the people or goods across their borders. This situation is neither possible in a country nor a country can survive as such. Since the various governments in a federation act side by side in the same country, it is thus inevitable that various kinds of relations would arise amongst them and to ensure these relations viable and intact, it is natural that various kinds of instrumentalities and mechanisms would come into existence in every federation for the purpose. It is to these various agencies or mechanisms that are employed to promote utmost cooperation and comity amongst the federal units on the one hand and between the federal government and the units on the other, is what we call as cooperative federalism.

Nevertheless, the concept of cooperative federalism has its own inherent advantages in that it helps a federal system with its divided jurisdiction, to act in unison; as a single entity. It minimizes friction and promotes cooperation among the various constituent governments of the federal union so that they can come together, pool in their resources for achieving certain desired national goals.

Just like in Nature, the discipline of Ecology teaches us that all organisms are interdependent in one or the other way and the survival of every organism is dependent on saving the every other organism of biodiversity, the same analogy can be applied to a federation. As in a federation, the various governments are interdependent as they operate in the same country, a federation would hardly survive if these governments try to act in isolation and at cross purposes, defeating the very purpose for which a federation is created i.e. to promote the unity and integrity of the country. As rightly remarked by one of the most influential Constitutional authority on US Constitution, Corwin, underlining the significance of cooperative federalism: “Cooperative federalism envisages that the states and national governments are regarded as mutually complementary parts of a single governmental mechanism all the whose powers are intended to realise the current purposes of government according to their applicability to the problems in hand.”

The Constitution makers were aware of the fact that in a country like India teeming with millions of poor people, cooperative federalism was to be the only workable solution. They also realised that the various governments in a federation were to be arranged not hierarchically or vertically, but horizontally. This was meant that no line of command runs from the centre to the states and that common policies among the various governments can be promoted not by dictation, but by a process of discussion, agreement and of course, compromise. To achieve this all, they inserted several provisions in the Constitution that aim at promoting cooperative federalism and many supplementing it, have been introduced over the years through executive and administrative regulations.

The present government, led by PM, Modi, has strenuously been vouching for “Cooperative Competitive Federalism” which seeks to focus on state’s proactive ness and competitiveness in terms of giving good-governance to the people, competition among the states for creating a business friendly climate and hence, ease of doing business etc. To encourage all these attributes among the several states, the support of the Central government would always be forthcoming…         

Features of a federal system

1.      Distribution of Powers: - An essential feature of federal Constitution is the distribution of powers between the Central Government and the Governments of the several units forming the federation. Federation means the distribution of the force of the State among a number of co-ordinate bodies, each originating in and controlled by the Constitution.

2.      Supremacy of the Constitution: - This means that the Constitution should be binding on the federal and State Governments. Neither of the two Governments should be in a position to override the provisions of the Constitution relating to the powers and status which each is to enjoy. This requirement is satisfied if the supremacy or overriding authority is accorded only to the provisions relating to the division of powers. Other provisions of the Constitution, which do not relate to the relationship between the Centre and the units, need not be supreme.

3.      Written Constitution: - The Constitution must necessarily be a written Constitution. It will be practically impossible to maintain the supremacy of the Constitution, unless the terms of the Constitution have been reduced into writing.

4.      Rigidity: - This feature is a corollary to the supremacy of the Constitution. Here rigidity does not mean that Constitution is unamendable or not subject to change. It simply means that the power of amending the provisions of the Constitution which regulate the status and powers of the Federal and State Governments should not be confined exclusively either to the Federal or State Governments, but must be a joint act of both. As regards the provisions of the constitution that are not concerned with the federal system there is no need to maintain the same rigidity.

5.      Authority of Courts: - This aspect of essentials of a federal future involves two connected matters. Firstly, there must be some authority, normally the courts of law to maintain the division of powers not only between the State Governments, but also between the Federal Government on one hand and the State Governments on the other. The courts of law are vested with power to declare laws made by the Federal or State Governments, ultra vires on the ground of excess of power. Secondly, to constitute a final Supreme Court which should not be dependent upon the Federal or State Governments and should be armed with the final authority to interpret the Constitution.

A perusal of the provisions of Constitution of India reveals that the political system introduced by it possesses all the aforesaid essentials of a federal polity.

The Indian Constitution establishes a dual polity. The dual polity consists of the Union as the Centre and the States at

the periphery, each endowed with powers to be exercised in the field assigned to them respectively, by the Constitution. The powers of the Union and the States are clearly demarcated. The Constitution is written and supreme. Enactments in excess of the powers of the Union or the State Legislatures are invalid. Moreover, no amendment, which makes any changes in the status or powers of the Centre of the State Legislatures, is invalid. Further, no amendment, which makes any changes in the status or powers of the Centre or the units, is possible without the concurrence of the Union and of a majority of the States. Finally, the Constitution establishes a Supreme Court to decide disputes between the Union and the States or between the States and to interpret finally the provisions of the Constitution.

Features of Indian constitution (differing it from a federal system)

Though the Constitution of India possesses the essential features of a federation, it differs noticeably from the typical federal systems of the world in certain ways. These are the following:-

a)      If the Upper House of the Union Legislature, the Council of States (Rajya Sabha) passes a Resolution, supported by not less than two-thirds of the members present and voting, that it is necessary or expedient in the national interest that Parliament should make laws with respect to any matter enumerated in the State List, if would be competent for Parliament to make laws for the States with respect to that matter to be operative  for such period, not exceeding one year, as may be specified therein. The operation of such legislation can be extended for additional periods of one year at a time, by Resolutions of the Council of States passed in the same manner as the first Resolution.

b)      During a period of emergency, the Parliament can make law in relation to the matters in the State List, give directions to the States as to how they should exercise their executive authority in matters which are within their charge empower the Union officers to execute matters in the State List and suspend the financial provisions of the Constitution.

c)      If the President, who is the head of the Union is satisfied that the Government of a State cannot be carried on in accordance with the provisions of the Constitution, he can issue a proclamation to that effect. He can then assume all the functions of the Government of the State, including the powers of the Governor. The only exception is that he cannot assume any of the powers vested in or exercisable by the High Court. By the same proclamation he can authorize the Parliament to exercise the powers or the State Legislature.

d)      If the President is satisfied that a situation has arisen whereby the financial stability or credit of India or any of parts is threatened, he can declare a financial emergency. In such an event, he can issue necessary directions, including orders for the reduction of salaries and allowances of public servants belonging to the Union or the States. All Money Bills, passed by the State Legislatures during the period of financial emergency, are also subject to the control of the Centre.

e)      The Union Government is empowered to issue administrative directions to the States in relation to certain matters. The directions are binding upon the States; the Constitution provides adequate means for securing the compliance with the directions by the States.

f)       The Parliament can be through unilateral action increase or diminish the area of any State or alter the boundaries of any State or alter the name of any State. It may, therefore, be pointed out that in the Indian Constitution by contrast with other federal Constitutions the emphasis on the territorial integrity of the constituent unit is absent.

g)      Laws passed by the State Legislatures concerning certain matters are not to be valid, unless they had been reserved for consideration of the President and had received his assent.

h)      The Governors of the States are appointed by the President and to the extent they exercise their powers their discretion are answerable to him.

i)       The Constitution of the U.S.A. allows dual citizenship - the citizenship of the U.S.A. and a State citizenship. The result of dual citizenship is that each State has the right to grant its citizens or residents of number of rights, which it may legally deny or grant on more difficult terms to those who are not its citizens, or residents. As opposed to this, the Indian Constitution does not envisage dual citizenship. There is no State citizenship. Every Indian has the same rights of citizenship, no matter in what State he resides.

j)       The States in America have the right to make their own Constitutions. In India no such power is given to the units. The Constitution of the Union and of the States is a single frame from which neither can get out and within which they must work.

k)      In an emergency the Constitution can become unitary. In normal times, the Constitution is framed to work as a federal system, but in times of war and other national emergencies it is designed to work as though it were unitary. The federal Constitutions like the U.S.A. and Australia, which are placed in a tight, would of federalism, cannot change their form and shape. They can never be unitary, as per the provisions of the Constitutions. However, such federations have molded themselves almost as unitary during emergencies with Judiciary giving the widest interpretation to the federal defense power of the State thereby affecting every aspect of national life, which may be necessary for meeting an emergency situation. However, the framers of the Indian Constitution have expressly empowered the Central Government to meet an emergency instead of leaving it to be achieved through judicial interpretation.

For the aforesaid reasons, it is generally agreed that the Indian Political System is a federation with strong unitary features.