Federal Features of Indian ConstitutionBala Brahmaiah
The term \'federation\' is derived from a Latin word foedus which means Treaty or agreement. Federal state is the result of a Treaty or an agreement between the component units of the Federation. The units in federation are known by various names such as states in US, cantons in Switzerland and provinces in Canada etc.
The term 'federation' is derived from a Latin word foedus which means Treaty or agreement. Federal state is the result of a Treaty or an agreement between the component units of the Federation. The units in federation are known by various names such as states in US, cantons in Switzerland and provinces in Canada etc.
The difficulty in understanding federalism is that there is no agreed definition. It is customary for political scientists to judge federations by taking the US as an yardstick. If we go strictly by the standards of US's federalism few States can with stand that test. To avoid such a situation we have to analyse those features which are basically federal or unitary.
The primary question whether a state is Federal or unitary is one of degree rather than kind and the answer will depend on how many federal features it possesses. A Federation is a functional concept rather than an institutional concept.
b) Examples of Federal government - the US, Switzerland, Australia, Canada, Russia, Brazil, Argentina.
Examples of unitary government - Britain, France, Japan, China, Italy, Belgium, Norway, Sweden, Spain.
2) Features of federation
a) Dual polity
In a federal state, there are two governments -The national or federal government and the government of each component state. A federal state is the fusion of several States into a single state to solve the problems affecting common interests, while granting autonomy to component States in their internal matters.
The component states are not near mere appendages of the federal government and they draw their power from the same source of constitution of the land from which the federal government also draws its power or from their own constitutions . However, the component states are forbidden from seceding from the federation at their will which is contrary to the feature of the Confederation.
b) Division of powers
The primary objective of Federation is the division of powers between the Federal Government and the component units. This division is mentioned in the constitution itself which is rigid and Supreme one. The amending process of this division requires the consent of both federal and component units of government.
c) Independent judiciary
The constitutions provide for an independent Judiciary by establishing supreme Court at the apex. The independent judiciary is essential to maintain the division of powers between the Federal Government and component units.
The constitutions provide for bicameral legislature consisting of two houses: The upper house, the custodian of the interests of Federal units and the lower house, which represents interests of the entire people of the Federation.
Not much pains need to be taken to state that the political system introduced by our constitution contains the above essential features of Federal polity. The constitution is the supreme organic law of our land and both the union and the state governments derive their power from it and the states are forbidden to secede from the union.
There is a division of legislative and administrative powers between the centre and the states and the supreme court jealously guards this division of powers by imposing restrictions on any transgressions by either of them. It is because of these basic Federal features the Supreme Court has aptly described the constitution as 'federal'.
Though our constitution contains the essential features of Federation it differs from the typical systems in certain fundamental respects.
A) The mode of formation of Federation in India
The American Federation is formed by a voluntary agreement between a number of sovereign and independent States for the administrative convenience of certain general problems. On the contrary the federation in India is not a matter of Administrative convenience but a matter of principle.
To appreciate the mode of formation of federation in India we must go back to the Government of India Act 1935. The concept of federation and its expression was used for the first time in the 1935 Act. The present constitution has simply continued the federal system introduced in the 1935 Act as far as the provinces of the British India are concerned. The foundation for the federal setup was laid down in the Government of India Act 1935 and the basic framework of the constitution is derived from it.
Federation envisaged in the Government of India Act 1935
British Parliament set up a federal system in the same manner as it had done in the case of Canada, by creating autonomous units and combining them into a federation. All powers hitherto exercised in India where resumed by the Crown and redistributed between federation and the provinces by a direct grant. Under the system, the provinces derived their authority directly from the crown and exercised legislative and executive powers, free from Central control within a defined sphere.
Nevertheless, the centre retained control through the governors special responsibilities and his obligation to exercise his Individual judgement and discretion in certain matters and the power of the centre to give certain directions to the provinces. The origin of the federal system in India was peculiar.
By Bala Brahmaiah