Is India a Federation?

A dual polity. A Government of India and a government for each State, each with its own legislature, executive and civil service, each acting directly on the same citizen.

Distribution of legislative powers. Article 246 with the Seventh Schedule allocates subjects across three Lists. This is the core of the arrangement and is taken up in [The Legislative Lists].

Distribution of executive power. Articles 73 and 162 make the executive power of each level coextensive with its legislative power, so the division of subjects carries the administration with it.

Distribution of financial resources. Separate heads of taxation, a divisible pool, and a Finance Commission to recommend the sharing, dealt with in [Fiscal Federalism].

An independent judiciary with the power to decide the line. Article 131 gives the Supreme Court exclusive original jurisdiction over a dispute between the Union and a State, and the courts decide questions of legislative competence.

A bicameral Parliament with a chamber representing the States. The Council of States under article 80.

The features no true federation has

A single citizenship. There is no citizenship of a State. Compare the United States, where a person is a citizen of the Union and of a State.

An integrated judiciary. One hierarchy of courts administers both Union and State law, with the Supreme Court at its head. There is no separate system of State courts.

All-India services. Officers recruited centrally serve the States and hold key posts in them, while remaining members of a service the Centre controls.

Parliament may redraw the map. Under article 3 Parliament may form a new State, alter the area, boundaries or name of an existing one, and it needs only to refer the Bill to the State legislature for its views, which do not bind. No true federation permits the centre to abolish a unit. This is [Making and Remaking States].

A single integrated audit and election machinery. One Comptroller and Auditor General, one Election Commission.

The Governor. Appointed by the President, holding office during pleasure, and empowered to reserve a State Bill for the President's consideration. See [The Governor].

Emergency provisions. During a Proclamation under article 352 Parliament may legislate on any State subject and the Union may direct a State on any matter; under article 356 the State government may be dismissed altogether; under article 360 the Centre may direct the States on financial matters. See [Emergency and the Federal Balance].

Parliament may legislate on a State subject even in normal times, on a resolution of the Council of States under article 249, with the consent of two or more States under article 252, or to implement a treaty under article 253.

A strong Union List, and the residue with the Centre under article 248, the reverse of the American and Australian arrangement.

The judicial position, and how it moved

Two decisions bracket the argument, and an answer that gives only one of them is out of date.

Facts. State of West Bengal v. Union of India, AIR 1963 SC 1241, (1964) 1 SCR 371, decided 21 December 1962. Under the Coal Bearing Areas (Acquisition and Development) Act 1957 the Union proposed to acquire coal bearing land owned by the State of West Bengal. The State sued, arguing that the Act did not reach land owned by a State, and that if it did, Parliament lacked competence, because the States are sovereign within their sphere and their property cannot be taken by a Union law.

Held. By a majority, with Subba Rao J. dissenting, the Act applied to State land and was within Parliament's competence under Entry 42 of the Concurrent List read with Entries 52 and 54 of the Union List. On federalism the Court said in terms that the Constitution of India is not truly federal in character. The basis of distribution is that only powers concerned with the regulation of local problems are vested in the States, and the residue, especially what maintains the economic, industrial and commercial unity of the country, is left to the Union. Full sovereignty does not vest in the States. Parliament, competent under article 3 to destroy a State altogether, cannot be held incompetent to acquire a State's property.

Why it matters. It is the leading early authority for the proposition that India is not a true federation, and it puts the argument at its strongest: a unit that can be abolished cannot be sovereign.

Facts. S.R. Bommai v. Union of India, AIR 1994 SC 1918, (1994) 3 SCC 1, decided 11 March 1994 by nine judges. A group of appeals about Proclamations under article 356 dismissing the governments of Karnataka, Nagaland, Meghalaya, Madhya Pradesh, Rajasthan and Himachal Pradesh.

Held. Among twelve summarised conclusions, the Court held that the Constitution of India has created a federation but with a bias in favour of the Centre, and that within the sphere allotted to them the States are supreme. It also held that a Proclamation under article 356 is not immune from judicial review, that the satisfaction must rest on relevant material, and that the court may require the Union to produce that material. Two of the six Proclamations were held unconstitutional.

Why it matters. It converts federalism from a description into a constraint. If a Proclamation dissolving a State government can be struck down, the States' sphere is protected by a court and not merely by the Centre's forbearance. This is also the case that makes federalism part of the basic structure, so that it limits even the amending power, as [The Basic Structure] explains.

The vocabulary, and which word to use

Several descriptions are in circulation and an examiner will recognise all of them.

Quasi-federal is Wheare's, and it is the most commonly quoted: a unitary State with subsidiary federal features rather than a federal State with subsidiary unitary features. It is a fair description of the text of 1950 and a poor description of the practice since 1994.

Federal with a strong centre is the description the Supreme Court itself has settled on, and it is the safest phrase to use.

Co-operative federalism describes the working relationship rather than the formal structure.

A bargaining federalism is the political scientist's phrase for what the arrangement has become, in which the real division is settled by negotiation over money and schemes rather than by litigation over Lists.

A good answer does not simply pick one. It says that the formal position is a Union of States with a pronounced tilt to the Centre, that the tilt was deliberate and is explained by partition and by the holding-together origin, and that the judicial and political practice has since moved the working position closer to a genuine federation without changing a word of article 1.

"Trust and faith between the Centre and the States"

MU's own question adds this phrase, and it is not decoration: it points at the parts of the arrangement that are not legal rules at all.

Several of the Constitution's federal provisions only work if both sides act in good faith. Article 3 requires the views of the State legislature to be sought but not followed, so the safeguard is a habit rather than a rule. Article 263 permits an Inter-State Council but does not require the Centre to use it. Article 356 turns on a satisfaction, and before Bommai the honesty of that satisfaction was the only protection there was. The Governor's discretion, the reservation of Bills for the President, and the sharing of tax revenue all depend on restraint by the stronger party.

The doctrine that gives this a legal name is federal comity: the proposition that the Union and the States must each exercise their powers with regard to the legitimate interests of the other, and neither should use a power it undoubtedly has in a way calculated to defeat the other's functioning. It is developed in [Administrative Relations and Federal Comity].

So an answer to MU's question should say that the relationship of trust and faith is not merely a sentiment. It is the substitute for the guarantees a coming-together federation would have written down, and where the trust has broken down, the courts have had to supply a rule instead: Bommai for article 356, and the recent litigation about a Governor's delay in assenting to Bills, which is [The Governor].

A worked example

Answer this stem, which MU has set in six of the eleven printed papers: "Explain fully, the principle of Federalism embodied in the constitution of India and relationship of trust and faith between Centre and States."

Open with the text, not with a conclusion. Article 1 says "Union of States", and Dr Ambedkar gave two reasons: the Union is not the result of an agreement, so no State may secede; and the States are not creatures of the Centre. Both halves matter, and quoting them settles the frame.

Give the federal features as a list, each with its article: written, supreme and rigid Constitution with article 368's ratification proviso; dual polity; article 246 and the Seventh Schedule; articles 73 and 162; the Finance Commission; article 131; the Council of States.

Give the unitary features as a list: single citizenship; integrated judiciary; all-India services; article 3 with article 4; the Governor; articles 352, 356 and 360; articles 249, 250, 252 and 253; article 248 and Entry 97.

Then the two cases, in order. West Bengal v. Union of India (1962): not truly federal, and a Parliament that may destroy a State cannot be incompetent to acquire its property. Bommai (1994): a federation with a bias in favour of the Centre, the States supreme within their sphere, and the article 356 power reviewable.

Answer the second half of the stem, which most candidates ignore. "Trust and faith" is federal comity. Say that article 3's consultation, article 263's Council and article 356's satisfaction all depend on restraint the text does not compel, and that where the restraint failed the courts supplied a rule: Bommai for article 356, and the assent litigation for article 200.

Conclude. A federation with a strong centre, whose federal character is now a basic feature, so the tilt is a design choice and not a licence.

Quick revision

• Article 1 says "Union of States" on purpose: no unit created the Union and none may leave it, but the States are not creatures of the Centre either.
• The federal features are the written, supreme, rigid Constitution, the dual polity, the three Lists, the separate executive and financial spheres, and an independent judiciary.
• The unitary features are single citizenship, an integrated judiciary, all-India services, article 3, the Governor, the emergency provisions, and the residue with the Centre.
• West Bengal (1962) said not truly federal. Bommai (1994) said a federation with a bias in favour of the Centre, the States supreme within their sphere. Give both.
• Federalism is now a basic feature, so the tilt towards the Centre is a design choice, not a licence.

Test yourself

1. Why does article 1 say "Union of States" rather than "federation"? Give the Constituent Assembly's two reasons.

2. List five features of the Constitution that no true federation has, with the article for each.

3. Contrast the view of federalism in State of West Bengal v. Union of India with that in S.R. Bommai, and explain what changed between them.

4. What is federal comity, and which provisions of the Constitution depend on it?