A constitution is the legal document in which several guiding principles are established, the functions and procedural aspects of the government are specified under which the different organs of government function. The Constitution is the supreme law of the land, which Kelsen determines as the “Grund Norm” in his pure theory of law. American Constitution is the pioneer of all federal constitutions followed by the Canadian and Australian constitutions respectively. It can be traced that the federal principle was adopted in the Government of India Act of 1935 and it was reinserted in the draft constitution by the Constituent Assembly.
Dr. BR Amedkar finds it convenient to describe the Indian constitution as federal and unitary. He believes that it functions as a federal constitution under normal conditions and as a unitary one during war or crisis. Federal principle: The principle can be understood as “the method of division of powers, so that the general and regional governments are each within a sphere of coordination and independence; and not subordinate to each other – Professor Wheare. The existence of mutually independent coordinated authorities is a gift of the chief federal, where, as the supreme sovereign power, he is invested with the only central organ that ultimately controls the state in a unitary form of government. Federalism is not a static but a dynamic concept. It is always in the process of evolution and constant adjustments. Federalism is also recognized as one of the basic features of the Constitution in the case of Kesavananda Bharathi.
Federal functions:
• There must be a rigid, written Constitution. Since the Constitution is the supreme law of the land, it must be rigid to maintain its supremacy.
• The written constitution is essential for the federal government to function well.
• The distribution of powers between the central government and the state governments is the most essential and orderly feature of a federal constitution. The distribution must be such that both governments must exist coordinated and independent in their own spheres.
• An independent and impartial judiciary must defend the supremacy of the constitution by interpreting the various provisions and resolving disputes between the laws enacted by governments and the Constitution.
To be called federal, it is not necessary for a Constitution to fully adopt the federal principle. It is enough that the federal principle is the predominant principle in the constitution. The maternal presence of unitary features in a constitution that can make it ‘quasi-federal’ in law does not prevent the Constitution from being predominantly federal in practice. (HM Seervai). Professor Whear described India as neither federal nor unitary, but “quasi-federal.” The Constitution of India came into force on January 26, 1950 adopting the prevailing federal principle. The doctrine of predominance as established by HM Seervai is not valid since the degree of predominance is insignificant compared to that of other Federal Constitutions.
According to M. C Setalvad, “The constitution of India which was drawn up in the mid-20th century presents a modified form of federation suited to the special requirements of Indian society.” Article 1 of the Constitution is described as a Union of States. Dr BR Ambedkar justifies that it is advantageous to describe India as a union of states, although it is federal in nature. Consequently, during the crisis it will have a unitary character. Teacher. Alexandrowitz says that India is supposed to have a quasi-federation mainly because of articles 3, 249, 352 to 360 and 371.
It can rightly be said that it supports Lord Ambedkar’s view. Power to alter the boundaries: Article 3 empowers Parliament to alter the boundaries of the states even without the consent of the states, which dilutes the federal principle. The state of West Bengal, in its memorandum submitted to the President of India, compares Article 3 to a damocle sword hanging over the heads of states. HM Seervai defends the power of Parliament to alter the borders of the states that “by further constitutional upheavals the states have forced the parliament to alter the borders of the states”
In practice, therefore, the federal principle has not been violated. But, Seervai agrees that the power conferred on Parliament was a serious deviation from the federal principle. History reveals that there has been no response or rational basis for such a serious deviation. Power distribution: Power distribution is one of the prerequisites of a federation of states The object by which the federal state is formed implies a division of authority between the national government and the separate states – Prof. AV Dicey.
Parliament can legislate on a matter included in the State List a) in the national interest (Art. 249) or b) if an emergency proclamation is in force (A250). Provisions that resolve the inconsistency between central and state laws are also weighed in favor of the center (A251 and 254) -AG Noorani. Gwyer CJ noted that the granting of residual power to the center has been done following the Canadian constitution. The constitutions of the United States and Australia, which are indisputably federal, confer residual power on the states.
Conferences of opposition parties outside Congress [held in 1986-87] resolved to require the granting of residual power to the states as a measure to strengthen the federal principle.
• Under the current provisions of our Indian Constitution, states are entitled to a portion of the centre’s income derived from a few taxes, mainly income tax and excise duties (@ approx. 45%).
• Finance Commission constituted under Article 352 as the balancing wheel of the federal financial relationship of India
• Article 365 dilutes the Federal Principle by imposing the President’s Rule in the State that does not comply or does not comply with the Center. Seervai defends power as it is open to judicial review. But it should be noted that the imposition of the President’s Rule affects the independence of the States. However, in practical terms, once a democratically constituted government is dethroned by such imposition of the president’s government, it is not only undemocratic but it costs the state treasury to carry out re-elections. Judicial review is a time-consuming process, and sometimes when the decision is made, the government’s mandate may expire. Therefore, the granting of such general power to the Center is undesirable since its effects on the democratic process and dilute the Federal Principle.
• The president is competent to proclaim an Emergency in any part or the whole of the country in accordance with article 352 if he is convinced that there is a serious emergency. The 44th Amendment to the Constitution replaced the words “internal disturbances” and inserted “armed rebellion.” The proclamation of Emergency in 1975 by unilateral decision of the then Prime Minister of India, Mrs. Indira Gandhi, led to the Amendment of the Constitution and the power has been very badly used during the emergency.
• In Rajasthan v Union of India, the Supreme Court has reiterated its ruling in West Bengal v. Union that the extent of federalism is largely diluted by the needs of progress and development of the country.
• The state of West Bengal submitted a memorandum suggesting certain changes to our Constitution to strengthen the federal principle.
The power of parliament to alter the boundaries of a state under article 3 must be subject to state approval. Residual power under article 248 of the Constitution must be vested in the States. The suppression of article 249 and article 356 to 360 would probably strengthen the Federal Principle.
• It is regrettable to note that article 263 of the Constitution has not been properly used. The time has come to reconstitute the Interstate Council as an autonomous, independent, and high-powered body. It must be entrusted with the responsibility of dealing with all matters between the center and the states. The Finance Commission and the Planning Commission should be independent autonomous authorities and appointments will be made in consultation with the States. Adequate autonomy must be provided to the States through the attribution of powers to the States and the appropriate modification of articles 3, 249 and 346 respectively. The attribution of residual powers to the States is also desirable. The governors will be appointed by the interstate council. Disputes, if any, between the Center and the States will be quickly resolved through the constitution of Special Constitutional Banks.