In this post, I will be analysing the Indian Federal Structure. The structure of the Indian Constitution is so unique that it is impossible to describe it in simple terms. Here, I will try to go through various Constituent Assembly debates and scholarly views to conclude the real ‘character of the Indian Federal Structure’.
“Personally, I do not attach any importance to the label which may be attached to it-whether you call it a Federal Constitution or a Unitary Constitution or by any other name. It makes no difference so long as the Constitution serves our purpose” – Rajendra Prasad.
The Indian Constitution is sometimes called “federal”, “Quasi-Federal”, “Sui-Generis” or “Cooperative Federalism”. But interestingly the founding fathers themselves refused to adhere to any theory or dogma about federalism. As G. Ayyangar said in the assembly, ‘India had unique problems which were not confronted other federations in history’. (CAD Vol. V, page 38). As we all know, federalism does not have any ‘stable meaning’ or definite concept. Therefore, as L.K. Maitra said the founding fathers have pursued ‘the policy of pick and choose to what would suit them best, what would the genius of the nation best’. The outcome that we see today is sui generis (unique) Constitution.
As Granville Austin says the most singular aspect of the drafting of the federal provisions was the relative absence of conflict between the ‘centralizers’ and the ‘provincialists’. There no discussion on the effect of emergency provisions, distribution of powers between centre-state or over the distribution of revenue (which we see as a problem now due to the implementation of GST). The assembly members wanted more revenue for the states but they settled that the Union should collect the money and then distribute. The federal structure, as we see today, was acceptable to most of the members of the assembly. According to Dr Ambedkar,
“Ours is a Federal Constitution inasmuch as it establishes what may be called a Dual Polity which will consist of the Union at the Centre and the States at the periphery each endowed with sovereign powers to be exercised in the field assigned to them.”
Ambedkar said the Constitution avoided ‘tight mould of federalism’ and could be ‘both unitary as well as federal according to the requirements of time and circumstances’.
Reasons for the Centralizing tendencies: A Historical Account
I. Gandhi v. Nehru?
Gandhi wanted political decentralization where the focus is on the micro-level governance as opposed to centralized government. The idea is derived from the drawback of centralized decision making at the macro governmental levels. According to Gandhi decentralization of political power is the basic requirement for the success of true democracy. The concentration of power in his view distorts all democratic values. So he thought that “possession of power makes men blind and deaf; they cannot see things which are under their very nose, and cannot hear things which invade their ears.” Thus, his linking for decentralization originates from his urge for the shrinking of the state and the deepening of the roots of democracy. He, therefore, asserted that “If India is to evolve along non-violent lines; it will have to decentralize many things. Centralization cannot be sustained and defended without adequate force”.
But the assembly had other ideas and the way in which the Assembly framed these provisions, however, it may be helpful to look at the ‘forces bearing on its decisions’. The conditions precedent to the formation of the constituent assembly urged the members to create a powerful centre to prevent the country from disintegrating. Although the Government of India Act of 1935 gave powers to the provinces, the power was always in the hands of the British (centralised). Here the report of the Joint Parliamentary Committee stated that the central government under the 1935 Act would cease to authority over the matters listed under the provincial list, but ‘in virtue of his (Governor-General) powers supervising the Governors, he will have authority to secure compliance in certain respects with directions which he may find it necessary to give’. This centralizing tendency affected India’s future, as Austin says. The Indian never, in reality, got to participate in the ‘real’ federal process as seen in the USA or Australia.
Further, Nehru said, in contradiction to Gandhi, in 1936 that, ‘it is likely that free India may be a Federal India, though in any event there must be a great deal of unitary control’. Communalism also impacted the Indian federal structure and the effect of communal tensions on plans for a federal structure is evident in the reports of Nehru and Sapru Committee. Nehru in the report said, ‘We are called upon to determine the principles of the Constitution after considering these divergent views’ before us and they recommended for centralized federal structure based on 1919 Government of India Act. In the Sapru committee, the members wanted the provinces to have the ‘residuary power’ (as opposed to Indian Constitution currently which resides this power in Centre). But after the bloodshed of partition, the second report of Union Powers Committee dated 05.07.1947 in Paragraph 2 suggested that,
“It would be injurious to the interests of the country to provide for a weak central authority which would be incapable of ensuring peace, of coordinating vital matters of common concern, and of speaking effectively for the whole country in the international sphere… the Soundest framework for our Constitution is a federation with a strong Centre.” (Page 70-71)
In the meeting of the Negotiating Committee of the Chamber of Princes and the Assembly’s States Committee (08.02.1947), Nehru said we need to deal with the situation which might happen after the partition wherein there would be economic, refugee and food crisis. The new provinces might not be able to bear the strains of the new responsibility, hence, it was feasible to adopt a strong central government which could deal with the problems.
II. Communalism: Community rights over States’ rights
The issue of communal politics since the 1920s till the independence also influenced the demand for a strong centre. The need for communal representation was more important than the bifurcation of power between the provinces (states) and the Centre. The emotional Indian, as Austin calls them, wanted community rights over the states’ rights, which were secondary and never assumed the importance they had in Australia and the USA. Even in 1919 and 1935 Acts, more reliance was placed for community rights (Muslims and Hindus) rather than rights of the provinces. The demand for the partition unified the provinces with the centre. Responsible Indian leaders, already confronted with a fragmented society, believed no new, divisive forces should be introduced.
Cooperative Federalism in India
In my opinion, the Indian state is neither quasi-federal nor completely federal. But what we have adopted is Cooperative Federal structure in which all governments has to understand an essential point that they are not independent rather interdependent and they should act for maximization of the common good [as also put forth by Professor M.P. Jain].
Even the Constituent Assembly religiously embraced ‘cooperative federalism’ which is characterized by the interdependence of federal and regional governments. According to Austin, it “produces a strong central government, yet it does not necessarily result in weak provincial governments that are largely administrative agencies for central policies”. Indian federalism has demonstrated this. Also, Geoffrey Sawer proposes that cooperative federalism has the following characteristics: (a.) Centre and States have a reasonable degree of autonomy [as seen in the distribution of lists]; (b.) Each of the parties can bargain about the terms of cooperation, and; (c.) at least if driven too hard, decline to cooperate. Although these pointers are not directly applicable to the Indian scenario, the Union and the States have shown to work in harmony in avoiding constitutional discord.
One of the benefits of this type of federal structure is, in words of Hon’ble Justice Dipak Misra, that the “national vision as set out in the Preamble to our Constitution gets realized”. The approach of the governments might be different, but the ultimate goal and objective remain the same. This will lead to the strengthening of constitutional functionalism in a Welfare state, like India.
The units of in the Constitution should stress on negotiations for achieving common goals amongst different levels of governments. According to Martin Painter, Australian proponent for Collaborative federalism, says
“The practical exigencies in fulfilling constitutionally sanctioned functions should bring all governments from different levels together as equal partners based on negotiated cooperation for achieving the common aims and resolving the outstanding problems.”
Such an approach requires continuous and seamless interaction between the Union and the State Governments. Under the Indian Constitution, we have Article 263 which establishes the Inter-state council whose duty is to “discuss subjects in which some or all of the States, or the Union and one or more of the States, have a common interest” [like COVID-19, 2020] and to “make recommendations upon any such subject and, in particular, recommendations for the better coordination of policy and action with respect to that subject”. Even the existence for Article 239AA aims for cooperative federalism between NCT of Delhi and the Union, as held in the case of NCT of Delhi v. Union of India. Further, the constitutional vision of cooperative governance is enhanced by the provision made in Article 258 under which the President may, with the consent of a State, entrust to it or to its officers, functions concerning any matter to which the power of the Union extends.
Hence, in conclusion, the Indian Constitution provides a platform for cooperation and deliberation between the states and the Union. The process by which national goals set out in the Preamble and DPSPs are achieved, not by the Union government acting alone, but by some or all of the governments and the territories acting collectively in cooperation. This should be the guiding star to them to move on the path of harmonious co-existence and interdependence.