A constitution is, broadly, a set of rules, written and unwritten, which seek to establish the duties, powers and functions of the various institutions of government, regulate the relationships between them, and define the relationship between the state and the individual. The term constitution is also used more narrowly to refer to a single, authoritative document, the aim of which is to codify major constitutional provisions; it constitutes the highest law in the land. On the basis of concentration or distribution of powers and the relations between the central and local authorities, constitutions (or States) stand classified in three forms:
§ Unitary Constitution
§ Federal Constitution
§ Confederal Constitution
Whether Indian Constitution is federal is a question that hasn’t been quite satisfactorily answered as yet. Some believe that the constitution is federal while others argue that is unitary in nature. So let us get a brief idea of what is exactly meant by the terms “federation” and “unitary constitution”. Further, we will chalk out the features of the Indian Constitution that give it a federal character and those which are more like unitary constitutions.
A federation is a state with one central (federal) government and several state governments existing side by side with the former acting for the whole of the territory and all the people of the state, and the latter acting within their respective areas. Each exercises power over a definite sphere and performs functions as allocated to it by the constitution of the state. In other words, in a federation, there is a division of powers between the central (federal) government on the one hand and state government on the other hand. Each is autonomous with its allotted sphere of powers. USA, Switzerland, Australia, Canada etc are federations.
Unitary State is that state in which all the powers are vested with one central government and the local governments exist and operate only in a way as is deemed fir by the central government. It involves the creation of a single integrated system of government vested with all the powers which it can exercise by itself or through delegation of some of these powers to the local governments. There is a single legislature, single executive and a single judiciary for the whole country. The local governments work as administrative units of the central government. Their powers and roles depend upon the wishes of the central government. The latter has the competence to effect at will any change, territorial or otherwise in the system of local governments. Britain, France, Italy, China, and many other countries are unitary states.
Difference between Federal and Unitary States
In a unitary state, local units of administration are created and abolished and their powers may be broadened and narrowed, by the central government. Although political power in unitary states may be delegated through devolution to local government by statute, the central government remains supreme; it may abrogate the acts of devolved governments or curtail their powers. The United Kingdom is an example of a unitary state. The parliament of the United Kingdom is supreme under the doctrine of parliamentary supremacy. Further, the subordinate governments cannot challenge the constitutionality of acts of Parliament, and the powers of the devolved governments can be revoked or reduced by the central government
In federal states, by contrast, states or other constituent units share sovereignty with the central government, and the states comprising the federation have an existence and power functions that cannot be unilaterally changed by the central government. In some cases, such as in the United States, it is the federal government that has only those powers expressly delegated to it. An example of a federal state is the United States; under theUnited States Constitution, power is shared between the federal government of the United States and the U.S. states. Many federal states also have unitary lower levels of government. Most countries with the Westminster system of government are unitary states except Australia, Canada and Malaysia, which have federal systems. These nations may be considered hybrids of both systems, employing the centrality of the unitary system at the federal level, and the sharing of power with states, provinces and territories found in federal systems.
Nature of the Indian Constitution
Unitary v. Federal Features
It has been argued that the Indian Constitution does not satisfy certain essential tests of federalism. These are as follows:-
1. The right of the units to make their own Constitution and provision of double citizenship.
2. Further, in the three-fold distribution of powers, the most important subjects have been included in the Union list, which is the longest of the three lists containing 97 items.
3. Even regarding the Concurrent list, Parliament enjoys an overriding authority over the State Legislatures.
4. Article 253 empowers the Union Parliament to make laws implementing any treaty, agreement or convention with another country or any decision made at any international conference, association, or other body.
5. The emergency powers of the president to declare national emergency or declaring emergency in a state in the event of failure of Constitutional machinery.
6. The appointment of governors.
7. Unification of judiciary and;
8. The dependence of the States on the Centre for finance.
9. The power of the Union to alter the names and territory of the states, to carry out Constitutional amendments and to affect co-ordination among the States and settle their mutual disputes is also regarded as an indicator of the unitary character of the Indian Constitution.
On the other hand,
Ø Distribution of Legislative Power: The Constitution makes a distribution of powers between the Union and the States, the jurisdiction of each being demarcated by the Union, State and Concurrent lists in the 7th Schedule of the Constitution.
Ø Allocation of Residuary Power: In India this power of legislation has been conferred on the Parliament, but is irrelevant for determining the federal nature.
Ø It is the essence of the Federal principle that both Federal and State laws operate on the same individual, it follows that in case of conflict of valid Federal and State law, the Federal law must prevail (Article 254). Hence, it does not violate the federal principle.
Ø The War or Emergency Power: The power of Centre which is limited in times of peace expands in times of war or imminent threat of war. Under Article 250 the Parliament gets the power to legislate on matters exclusively in the State List. This complete departure from federal principle provides expressly for what in fact happens in federations in times of war or imminent threat of war.
Ø Territory of the States: Under our Constitution, Parliament has the power to alter the boundaries of the States and this power can be exercised without the consent of the States concerned.
Ø Independence of the Judiciary: Another pre-requisite of a federation, namely, an independent judiciary – an interpreter and guardian of the Constitution – is also present in the Indian Federation. The Supreme Court can declare any law passed by the Union Parliament or a State legislature ultra vires if it contravenes any of the provisions of the Constitution.
The fact is that the Constitution has been designed to operate on the principle that “in spite of federalism the national interest ought to be paramount.” The constitution provides “the means and methods” whereby “all basic matters which essential to maintain the unity of the country may be secured under a federal system.” The founders were thus concerned with preserving national unity by providing for a string central government. But a look at the federations around the world lead one to conclude that in all cases the national governments have enormously grown in power and prestige at the cost of regional governments.
We see that there is a unique blend of federal and unitary features in the Indian constitution. We know that India is a country with vast cultural, regional, linguistic, religious diversity. For efficient government of such a nation, federation is essential. However, to keep the states together and to protect them during war or any kinds of aggression we feel the need to have a unitary government. Thus these unique needs have been very efficiently met by the Constitution of the Union of India having federal characteristics.
2nd Year Student, National Law Institute University, Bhopal
[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]