Is India a Federation? The Quasi-Federal Argument

Article 356: the Union may dismiss a State government. Used well over a hundred times.

Article 155: the Governor is appointed by the President and holds office during his pleasure under article 156, which places the head of a State in the Union's gift.

And the machinery is single throughout. One citizenship, one judiciary with the Supreme Court above every High Court, one Election Commission, one Comptroller and Auditor General, and one All India Services cadre serving both governments.

The case that India is a federation

The division of powers is constitutional and justiciable. Article 246 gives the States an exclusive List of sixty-one entries, and a Union law on a State subject is void unless one of the express routes applies. The umpire is a court, and the courts have struck down Union laws for want of competence.

The division is entrenched. The proviso to article 368(2) requires ratification by not less than half the State legislatures before the Seventh Schedule, the representation of States in Parliament, or article 368 itself may be amended. The Union cannot alter the bargain alone.

The States have a chamber of their own. Articles 80 and 81 create a bicameral Parliament with the Council of States representing the States, and a Bill amending the entrenched provisions cannot pass without the States' legislatures.

Revenue is divided by the Constitution and by an independent body. Articles 268 to 281 allocate taxes and article 280 creates the Finance Commission, whose recommendations on the distribution of the net proceeds of taxes are made by a body neither government controls.

There is an original jurisdiction for federal disputes. Article 131 gives the Supreme Court exclusive original jurisdiction in a dispute between the Union and a State or between States.

And the federal character is unamendable. Kesavananda Bharati names it among the basic features.

How the Court's language has changed

1963: not traditionally federal. In State of West Bengal v. Union of India, AIR 1963 SC 1241. Facts. The Union's acquisition of coal-bearing land vested in the State, and Held., by a majority, that the Constitution is not traditionally federal, that the States were never sovereign, and that Parliament may acquire State property; Subba Rao J. dissented. Why it matters here is that this is the high point of the centralising reading.

1994: federalism is a basic feature and the States are not appendages. In S.R. Bommai v. Union of India, AIR 1994 SC 1918; (1994) 3 SCC 1. Facts. A group of appeals about Proclamations under article 356 dismissing State governments in Karnataka, Nagaland, Meghalaya, Madhya Pradesh, Rajasthan and Himachal Pradesh. Held. The satisfaction under article 356 is subjective but conditioned and not absolute, that relevant material is a precondition, that the Proclamation is not immune from judicial review and may be struck down if mala fide or based on wholly irrelevant or extraneous grounds, that the majority of a government is to be tested on the floor of the House, and that secularism is a basic feature. Why it matters here is that it made the strongest unitary provision in the Constitution justiciable, which changed the practical balance more than any amendment has.

2022: the States are not subordinate in a shared field. In Union of India v. Mohit Minerals Pvt Ltd, (2022) 10 SCC 700. Facts. A challenge to the levy of integrated goods and services tax on ocean freight in a contract of import, and the question whether the recommendations of the Goods and Services Tax Council bind the Union and the States. Held. The recommendations of the Council are not binding but have persuasive value, since article 246A confers simultaneous legislative power on the Union and the States and article 279A does not create a body whose recommendations displace that power; and it described Indian federalism as a dialogue in which the States and the Centre are equal participants in a shared field. Why it matters here is that it is the most recent authoritative statement, and it is the answer to the argument that the goods and services tax destroyed fiscal federalism.

A worked example

A candidate is asked whether India is a federation and writes "India is quasi-federal, as Wheare said". What is missing, and what would a good answer add?

What is missing is that the question is about a document, not a label. Wheare wrote in 1951 about a Constitution one year old, before Bommai, before the 73rd and 74th Amendments, before the Finance Commission had become the principal channel of resources, and before article 246A. A label from 1951 is a starting point.

A good answer separates the provisions from the practice. On the text, the centralising provisions are stronger than in any comparable federation. In practice, article 249 has been used rarely, article 356 is now reviewable and its use has fallen sharply since 1994, and the fiscal share going to the States is fixed by a body neither government controls.

A good answer also distinguishes normal times from emergencies. Ambedkar's formulation, that the Constitution is both unitary and federal according to the requirements of time and circumstances, is not a fudge: it describes a document that changes character in defined and reviewable circumstances, which is itself a federal design decision.

And a good answer takes a position. The defensible conclusion is that India is a federation with a strong centre, that its federal character is part of the basic structure and therefore beyond amendment, and that the unitary provisions are exceptions which the Constitution defines and the courts police, rather than the general rule.

Distinctions

What it does NOT mean

It does not mean the label controls the result. No case has ever been decided by asking whether India is federal. Cases are decided by reading article 246, article 254 or article 356.

It does not mean the balance is fixed. It has moved twice by amendment, in 1976 towards the centre and in 1992 and 2016 in mixed directions, and once by judicial decision in 1994.

It does not mean a strong centre is a defect. The Constituent Assembly chose it deliberately, against the background of Partition and of five hundred and sixty-two princely States, and Ambedkar defended it on that ground.

And it does not mean the federal features can be removed. Kesavananda Bharati puts the federal character in the basic structure, so an amendment abolishing the State List would be void however it was passed.

Quick revision

Wheare: quasi-federal, a unitary State with subsidiary federal features. Ambedkar: both unitary and federal according to the requirements of time and circumstances. Centralising provisions: article 3, articles 248, 249, 250, 252, 253, articles 256, 257 and 365, article 356, articles 155 and 156, single citizenship, judiciary, election commission and audit. Federal provisions: articles 245 and 246 with an exclusive State List, the proviso to article 368(2), the Council of States, articles 268 to 281 and the Finance Commission under article 280, article 131, and the federal character as a basic feature under Kesavananda. State of West Bengal 1963: not traditionally federal, the States were never sovereign. S.R. Bommai 1994: federalism is basic, article 356 is reviewable, the floor test. Mohit Minerals 2022: the GST Council's recommendations are persuasive and not binding, because article 246A gives simultaneous power, and Indian federalism is a dialogue between equal participants.

Test yourself

1. State Wheare's and Ambedkar's descriptions and the difference between them. Wheare called the Constitution quasi-federal, a unitary State with subsidiary federal features. Ambedkar said it is both unitary and federal according to the requirements of time and circumstances. Wheare describes a permanent character; Ambedkar describes a document that changes character in defined circumstances.

2. Name five provisions that make the Indian centre stronger than in a classical federation. Article 3, alteration of State boundaries by ordinary law; article 248 and Entry 97, the residuary power in the Union; article 249, entry into the State List on a resolution of the Council of States; article 250, legislation on State subjects during an emergency; and article 356, the dismissal of a State government.

3. Name five provisions that are genuinely federal. Article 246 with an exclusive State List; the proviso to article 368(2) requiring ratification by half the States; the Council of States; articles 268 to 281 with the Finance Commission under article 280; and article 131, the original jurisdiction in Union and State disputes.

4. How did S.R. Bommai change the practical balance? By holding that the satisfaction under article 356 is conditioned rather than absolute, that a Proclamation is reviewable and may be struck down if mala fide or based on irrelevant grounds, and that a government's majority is tested on the floor of the House. That made the strongest unitary provision justiciable.

5. What did Mohit Minerals decide about the GST Council? That its recommendations are persuasive and not binding, because article 246A confers simultaneous legislative power on the Union and the States, and Indian federalism is a dialogue in which both are equal participants in the shared field.

6. Why can the federal character not be amended away? Because Kesavananda Bharati names it among the basic features, so an amendment destroying the division of powers would be beyond the amending power however it was passed.