What a Federation Is

An independent judiciary as umpire. Somebody must decide whether a law is inside a list, and it cannot be either of the parties to the dispute. This is developed in [Judicial Review in the Federal Framework: The Court as Umpire].

Two further features are usually added, and India has one of them. A bicameral central legislature with a chamber representing the units, which India has in the Council of States under articles 80 and 81. And dual citizenship and separate State constitutions, which India does not have, and which is why the classical writers hesitated about it.

Wheare's test, and the two ways of failing it

Wheare's test is co-ordination and independence within a sphere. Neither government may be legally subordinate to the other in the field allotted to it.

A system fails the test if the centre can override the units at will. If the general government can legislate on a regional subject whenever it chooses, or dismiss a regional government, the regional government is not independent within any sphere.

And it fails equally if the units can leave or can nullify central law. A right of secession, or a power in a unit to declare a central law inoperative within its territory, makes the general government dependent on the units and produces a confederation.

India has to be tested against the first limb, and that is the argument of the next two chapters.

The Indian provisions that create the division

Article 1(1) declares that India, that is Bharat, shall be a Union of States. The word "Union" was chosen deliberately, and Ambedkar explained in the Assembly that the Drafting Committee wanted to make it clear that though India was to be a federation, the federation was not the result of an agreement by the States, and that no State had a right to secede.

Article 245(1) confers legislative power on Parliament for the whole or any part of the territory of India and on a State Legislature for the whole or any part of the State, in both cases subject to the provisions of the Constitution.

Article 246 allocates the fields: List I of the Seventh Schedule to Parliament exclusively, List II to the State Legislatures exclusively, and List III to both, with Parliament prevailing in a conflict under article 254.

And the executive power follows the legislative power, by articles 73 and 162, so the division reaches administration as well as legislation.

A worked example

Take one ordinary subject and follow it through the machinery, because the abstract statement of the division is easy and the application is where marks are. Public health and sanitation, hospitals and dispensaries is Entry 6 of List II. Population control and family planning is Entry 20A of List III. Inter-State quarantine is Entry 81 of List I.

A State enacts a law regulating private hospitals in the State. Competent: Entry 6 of List II, and Parliament could not have made that law.

Parliament enacts a law prescribing standards for family planning services. Competent: Entry 20A of List III, and the State may also legislate on it, subject to article 254 if the two conflict.

Parliament enacts a law imposing a quarantine on movement between two States during an epidemic. Competent: Entry 81 of List I, and a State could not have made it.

Now the hard variant, which is the real work of a federal court. A State enacts a law prohibiting the movement of persons into the State during an epidemic. Is that public health under List II, or inter-State quarantine under List I? The answer is found by the doctrine of pith and substance, examined in [Pith and Substance, Colourable Legislation and Incidental Encroachment], and the point for now is that this question exists in every federation and that the umpire is a court.

The cases

India is a federation, but not one made by agreement. In State of West Bengal v. Union of India, AIR 1963 SC 1241. Facts. The Union sought to acquire coal-bearing land vested in the State of West Bengal under the Coal Bearing Areas (Acquisition and Development) Act 1957, and the State sued under article 131, arguing that it was sovereign within its own field and that Parliament could not compulsorily acquire State property. Held, by a majority. The Act was valid: the Indian Constitution is not traditionally federal in the sense of being a compact between independent sovereign units, the States were not sovereign before the Constitution, Parliament's legislative power extends to the property of a State unless the Constitution says otherwise, and there is no constitutional guarantee against acquisition of State property by the Union. Subba Rao J. dissented. Why it matters here is that it settles the character of the Indian Union: the division of power is real, but it descends from the Constitution rather than ascending from an agreement between the States.

And the federal character is nevertheless part of the basic structure. In Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461; (1973) 4 SCC 225, the judgments named the federal character of the Constitution among the basic features that the amending power cannot destroy. Why it matters here is that it answers a natural objection to State of West Bengal: if the Union created the States, could it not abolish the division? The answer is that it may alter it by the amending procedure and may not destroy it at all.

Distinctions

What it does NOT mean

It does not mean the units are sovereign. In no federation are they. They are independent within a sphere, which is a different and smaller claim.

It does not mean the division must be equal. Every federation gives the general government the larger and more important subjects. What matters is that the regional field exists and is protected.

It does not mean a federation must be created by agreement. Federations formed by devolution from a unitary State are still federations, and India, Belgium and Spain are examples.

And it does not mean federalism is only about legislative lists. Administrative relations, revenue sharing, the appointment of Governors, the emergency provisions and the courts are all part of the federal question, and each has its own chapter in this module.

Quick revision

A federation divides power between a general and regional governments, each co-ordinate and independent within a sphere and each deriving authority from the constitution: Wheare. Essentials: a written and supreme constitution, a division of powers, a rigid amending procedure for the federal provisions, and an independent judiciary as umpire; usually also a second chamber for the units, dual citizenship and separate unit constitutions. India has the first five and the second chamber, and does not have dual citizenship or separate State constitutions. Article 1(1): India, that is Bharat, shall be a Union of States, the word chosen to show that the federation was not the result of an agreement and that no State may secede. Article 245 confers legislative power subject to the Constitution; article 246 with the Seventh Schedule divides the fields; articles 73 and 162 make executive power follow legislative power. State of West Bengal v. Union of India 1963: not a compact between sovereign units, and Parliament may acquire State property; Subba Rao J. dissented. Kesavananda Bharati: the federal character is part of the basic structure.

Test yourself

1. State Wheare's federal principle. That the method of dividing powers should be such that the general and the regional governments are each, within a sphere, co-ordinate and independent.

2. Name five essential features of a federation. A written constitution; the supremacy of that constitution over both governments; a division of powers between two sets of government; a rigid procedure for amending the federal provisions; and an independent judiciary to decide disputes about the division.

3. Why was the word "Union" used in article 1(1) rather than "Federation"? Because the Drafting Committee wished to make clear that the Indian federation was not the result of an agreement between the States and that no State had a right to secede from it.

4. What did State of West Bengal v. Union of India decide? That the Indian Constitution is not traditionally federal in the sense of a compact between sovereign units, that the States were not sovereign before it, and that Parliament may compulsorily acquire land vested in a State, there being no constitutional guarantee against it. Subba Rao J. dissented.

5. Which two usual federal features does India lack? Dual citizenship and separate constitutions for the units, Jammu and Kashmir formerly being the exception to the second.

6. Why does a paper on pluralism also deal with federalism? Because a group that is a minority in the country may be a majority in a State, so a federal division lets it govern itself in the matters it cares about most while remaining within one country. Federalism is the territorial answer to the same problem minority rights answer personally.