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A Union of States_Essays_Part1

A federation like no other: the Indian experiment with federal government

The word “federalism” or “federalist” does not appear even once in the entire Constitution of India. The only time the Constitution even uses the word “federal” is in the context of the “Federal Court of India”, set up under the Government of India Act, 1935. But crack open any text book on Indian constitutional law and you will find that federalism is listed as one of the “basic features” of the Constitution of India that cannot be extinguished even by amendment of the Constitution. How does one reconcile this?

When the Constitution of India came into force in 1950 it was not a document produced de novo. It built upon previous experiments with something approximating constitutional rule in India. Since we are talking about the concept of federalism, one must really begin with the Government of India Act, 1935 to understand how the Constitution of India came to be as it was.

The 1935 Act was a law passed by the British Parliament to devolve certain powers to the provinces and the Central Government. It came in response to the Independence movement’s demand for greater autonomy and self-government on matters. It was, as with most things in India, a compromise among various groups, not least of all the Congress and the Muslim League who had their own differences on this. Naturally, no one was happy with it. The best anyone could say about it was a tepid at-least-it’s-something-and not-nothing. It was also the first time that something like a federation was created with separate fields of legislation for the provinces and the federal government.

It is quite remarkable how many features of the 1935 Act find their way into the Constitution. Specifically, the relations between the Union and the States are virtually identical, down to the subject matters classified into three lists (the Union list, the State list, and the Concurrent list) and the independent sources of power to make laws. A few more were added to the Union list in the Constitution keeping in mind the fact that India was a sovereign nation with the ability to enter into treaties on its own and responsible for their implementation. The fundamental nature of the relations between the Central Government and the provinces in a colonial-era law seems to have been carried forward in the Constitution of India.

Does all of this mean that India is not really a federation?

It depends on what you mean by a federation. If you mean federation like the United State of America, then certainly not. Each state in the USA has its own Constitution and its own Supreme Court. There is no concept of the federal government changing the boundaries of a State and nothing like “President’s Rule”. A few powers are granted to the federal government with a majority reserved for the state governments.

But this is just one model of federalism. Any number of countries have adopted systems of government where powers are shared between the centre and the sub-national units. One could even argue that the European Union is a federal system of government that is very close to the US model. The common thread that distinguishes genuine federal systems from those which are essentially unitary is that the political sovereignty of the sub-national units is recognised at the same level as the federal unit itself. Devolution of powers in the United Kingdom, for instance, happens not through a written constitution but by a law which can be repealed or amended by Parliament (such as the Scotland Act, 1988 which creates the Parliament of Scotland). This makes the United Kingdom a unitary state for all intents and purposes though Scotland, Northern Ireland, and Wales have their own law-making bodies.

Even with all of this, there was considerable debate whether India was a federal system at all in the years immediately after the Constitution. Some scholars argued that India was a unitary system with some federal features (KC Wheare), others that it was a federation with strong centralising features (Ivor Jennings) and those who denied India was a federation at all (KV Rao). On the other hand, there were those like Charles Alexandrovich, N Srinivasan, and Paul Appleby who argued that India was indeed a federation. H.M. Seervai, the author of the best critical commentary on the Constitution, categorically asserts that India’s constitution is a federal one, tearing into the judgements of the Supreme Court that said otherwise. Perhaps the last word must go to Granville Austin, the author of possibly the most authoritative text on the Constitution – that it is indeed a federation, but a federation like no other.

India’s constitution is undoubtedly based on a federal structure, but it is like no other for very good reasons – India is like no other country. The bewildering differences in climate, geography, language, culture, beliefs, cuisine, history, and just about everything else that marks the land between the Himalayas and the Indian ocean is hard to match anywhere else. It has seen multiple empires rise, rule, and vanish into the mists of time. All have left indelible prints in some way, but the one thing that the framers of the Constitution understood and understood well was that India they wanted would not be an empire. It would be an experiment in government never before tried in the history of the sub-continent, and should it stand the test of time, go down as a modern wonder of the world in its own right.

This unique Indian federal form of government is something that has many fascinating aspects and stories behind it, and that is what I propose to write about here during the coming months.

 

Alok Prasanna Kumar is a Senior Resident Fellow of the Vidhi Centre for Legal Policy and heads its Bengaluru office.

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