NATIONAL LAW UNIVERSITY, JODHPUR

CONSTITUTIONAL GOVERNANCE-II
ASSIGNMENT TOWARDS FULFILLMENT OF CONTINUOUS
ASSESSMENT

ESSENTIALS OF FEDERALISM

SUBMITTED TO:
PROF. K.L. BHATIA

SUBMITTED BY:
DIGVIJAY SINGH
1058
BBA.LLB(hons.)
IV SEMESTER

Contents
INTRODUCTION......................................................................................................................3
FEDERAL FEATURES.............................................................................................................3
CENTRE STATE RELATIONS..............................................................................................4
FINANCE COMMISSION........................................................................................................6
CO- OPERATIVE FEDERALISM............................................................................................6
POST KESAVANANDA VERDICT:........................................................................................7
THE KESAVANANDA VERDICT:..........................................................................................7
CONCLUSION..........................................................................................................................9

INTRODUCTION
Federalism is the largest stage in the evolution of man in understanding one another and
learning to live together by accommodating anothers point of view without forgetting or
compromising his own goal in a peaceful and orderly manner. Federalism is the pointed
indicator of the fact that concept avows unity in diversity.
The Constitution provides a federal system of government in the country even though it
describes India as a Union of States. The term implies that firstly, the Indian federation is
not the result of an agreement between independent units, and secondly, the units of Indian
federation cannot leave the federation. The Indian Constitution contains both federal and nonfederal features.

FEDERAL FEATURES
The federal features of the Constitution include:
(1) A written constitution which defines the structure, organization and powers of the central
as well as state governments
(2) A rigid constitution which can be amended only with the consent of the states.
(3) An

independent

judiciary

which

acts

as

the guardian of

the

constitution.

(4) A clear division of powers between the Center and the States through three lists- Union
list, State list and Concurrent list.
(5) The creation of an Upper House (Rajya Sabha) which gives representation to the states.
For the above reason we mention that the Indian constitution is Federal in nature 1 but Indian
Constitution

India

is

often

described

as

quasi-federal

country.

It may be that the Centre has been assigned a larger role than the states but that by itself does

1 V.N.Shukla, Constitution of India, 1969 p.40

3

not detract from the federal nature and more power is given to the Centre.2

CENTRE STATE RELATIONS

Relations between the Union and States can be studied under the following heads:(a) Legislative Relations- The Constitution divides legislative authority between the Union
and the States in three lists- the Union List, the State List and the Concurrent List. The Union
Parliament has exclusive authority to frame laws on subjects enumerated in the Union list.
These

include

foreign

affairs, defense, armed

forces,

communications,

posts

and

telegraph, foreign trade etc. The State list consists of subjects on which ordinarily the States
alone can make laws. These include public order, police, administration of justice, prison,
local governments, agriculture etc. The Concurrent list comprises of items including criminal
and civil procedure, marriage and divorce, economic and special planning trade unions,
electricity, newspapers, books, education, population control and family planning etc. Both
the Parliament and the State legislatures can make laws on subjects given in the Concurrent
list, but the Centre has a prior and supreme claim to legislate on current subjects. In case of
conflict between the law of the State and Union law on a subject in the Concurrent list, the
law of the Parliament prevails. Residuary powers rest with the Union government. Parliament
can also legislate on subjects in the State list if the Rajya Sabha passes a resolution by twothird majority that it is necessary to do so in the national interest. During times of emergency,
Parliament can make laws on subjects in the State List. Under Article 356 relating to the
failure of constitutional machinery in the state, Parliament can take over the legislative
authority of the state. Likewise, for the implementation of international treaties or
agreements, Parliament can legislate on state subjects. Finally, Parliament can make laws on
subjects in the State list if two or more states make a joint request to it to do so. Thus, the
Centre enjoys more extensive powers than the states.
2 M.P.Jain, Indian Constitutional Law, 3rd edn. 1978 p.347
4

(b) Administrative relations- The Indian Constitution is based on the principle that the
executive power is co-extensive with legislative power, which means that the Union
executive/the state executive can deal with all matters on which Parliament/state legislature
can legislate. The executive power over subjects in the Concurrent list is also exercised by the
states unless the Union government decides to do so. The Centre can issue directives to the
state to ensure compliance with the laws made by Parliament for construction and
maintenance of the means of communications declared to be of national or military
importance, on the measures to be adopted for protection of the railways, for the welfare of
the scheduled tribes and for providing facilities for instruction in mother tongue at primary
stage to linguistic minorities. The Centre acquires control over states through All India
Services, grants- in- aid and the fact that the Parliament can alone adjudicate in inter- state
river disputes. During a proclamation of national emergency as well as emergency due to the
failure of constitutional machinery in a state the Union government assumes all the executive
powers of the state.
(c) Financial Relations Both the Union government and the states have been provided with
independent sources of revenue by the Constitution. Parliament can levy taxes on the subjects
included in the Union list. The states can levy taxes on the subjects in the state list.
Ordinarily, there are no taxes on the subjects in the Concurrent List. In the financial sphere
also the States are greatly dependent on the Centre for finances. The Centre can
exercise control over state finances through the Comptroller and Auditor General of India and
grants. but during financial emergency the President has the power to suspend the provision
regarding division of taxes between the centre and the states.

FINANCE COMMISSION
One of the instruments which the Constitution has evolved for the purpose of distributing
financial resources between the Centre and the states is the Finance Commission. The
Finance Commission according to Article 280 of the Constitution is constituted by the
President once every five year and is a high- power body. The duty of the Commission is to
make recommendations to the President as to: (a) the distribution between the union and the
states of the net proceeds of the taxes which are to be divided between them and the
allocation between the states themselves of the respective share of such proceeds; (b) the
principles which should govern the grants-in-aid of the revenues amongst the states out of the
Consolidated Fund of India.

CO- OPERATIVE FEDERALISM

The Indian Constitution provides for a number of mechanisms to promote co-operative
federalism. Article 263 empowers the President to establish Inter-State Council to promote
better co-ordination between the Centre and States.
Inter -State Council was formally constituted in 1990. It is headed by the Prime Minister
and includes six Cabinet ministers of the Union and Chief Ministers of all the states and
union territories.
Zonal Councils were set up under the State Re-organization Act, 1956, to ensure greater
cooperation amongst states in the field of planning and other matters of national importance.
The act divided the country into six zones and provided a Zonal Council in each zone. Each
council consists of the Chief Minister and two other ministers of each of the states in the zone
and the administrator in the case of the union territory. The Union Home Minister has been
nominated to be the common chairman of all the zonal councils.

POST KESAVANANDA VERDICT:

The matter of the Doctrine of basic Structure again came up in the Supreme Court in Indira
Nehru Gandhi v. Raj Narain3.In this case for the 1st time a constitutional amendment was
challenged not in respect of rights of property or social welfare but with reference to an
electoral law designed to ensure freeand fair elections which lie at the basis of a democratic
parliamentary form of government.4 Here the 39thConstitutional Amendment was challenged.
Counsel for Raj Narain, the political opponent challenging Mrs. Gandhi's election, argued
that the amendment was against the basic structure of the Constitution as it affected the
conduct of free and fair elections and the power of judicial review. Counsel also argued that
Parliament was not competent to use its constituent power for validating an election that was
declared void by the High Court.
Four out of five judges on the bench upheld the Thirty-ninth amendment, but only after
striking down that part which sought to curb the power of the judiciary to adjudicate in the
current election dispute. One judge, Beg, J. upheld the amendment in its entirety. Mrs.
Gandhi's election was declared valid on the basis of the amended election laws. The judges
grudgingly accepted Parliament's power to pass laws that have a retrospective effect.5

THE KESAVANANDA VERDICT:

The Supreme Court declared in Kesavananda Bharati v. State of Kerala 6 that Article 368 did
not enable the Parliament to alter the basic structure of framework of the constitution. The
judgment was ground shattering. It was a revolutionary step in the history of Constitutional
Law. Subsequently, the Supreme Court of Bangladesh adopted the doctrine of basic structure
3 Indira Nehru Gandhi v. Raj Narain, AIR 1975 SCC 2299
4 Bhatia, K. Sukhcharan, Jurisprudence of Amending Process under Indian Constitution, Deep & Deep
publications, Delhi, 1989 pg 208

5 Golak Nath v.State of Punjab, (1967) 2 SCR 762: AIR 1967 SC

6 Kesavananda Bharati v. State of Kerala, AIR 1973SC 1461
7

relying on Kesavanada Bharati case. In Pakistan the Lahore High Court and the Baluchistan
High Court took the same view but not the Supreme Court. The judgment also had an
effecton the Nepal Constitution.7 For the first time, the Doctrine of Basic Structure was
specifically mentioned in this case.
The validity of the 24th and the 25th amendment was challenged in this case and the matter
was heard by a bench of 13 judges. And the Court held that Our Constitution is not a mere
political document. It is essentially a social document. It is based on a social philosophy and
every social philospphy like every religion has two main features, namely, basic and
circumstantial. The former remains constant but the latter is subject to change. The core of a
religion always remains constant but the practices associated with it may change. Likewise, a
constitution like ours contains certain features which are so essential that they cannot be
changed or destroyed.8

7 Supra Note 6
8 Supra Note 6
8

CONCLUSION
Dr. B.R. Ambedkar, one of the chief-architects of the Indian Const-said: Our constitution
would be both Unitary as well as Federal according to the requirements of time &
circumstances.In historical as well as present context, the above statement is fully correct
because: federalism is not static but a dynamic concept it is always in the process of
evolution & constant adjustments from time to time in the light of the contemporary needs
the demands being made on it. Constant discussions & negotiations between the centre & the
states in various for a can help in removing frictions & difficulties in the area of inter
government cooperation.
For making Indian Federalism more robust & viable system the differences between the
centre & the state must be sort out so that India may successfully meet the great-challenges of
difference, external & internal security & socio-economic development. At lost, it is very
necessary that neither the federal set-up becomes unitary not that it becomes too lose & weak
affecting the unitary & integrity of the nation.