Quasi-Federal: the Argument About India

Practice has moved. The number of article 356 proclamations fell sharply after 1994; the GST Council under article 279A gives the States two thirds of the voting weight; and coalition politics from 1989 to 2014 gave regional parties a share of central power.

The three positions in the authorities

1963: not traditionally federal. State of West Bengal v. Union of India, AIR 1963 SC 1241, upheld a Union Act acquiring State property, and the majority listed the features that made the Constitution unlike a traditional federation: no separate constitution for each State, Parliament's power to alter State boundaries, single citizenship, a unified judiciary, and the residuary power at the centre.

1994: federalism is a basic feature. S.R. Bommai v. Union of India, (1994) 3 SCC 1, held so expressly, made article 356 justiciable, required the floor test, and forbade dissolution before parliamentary approval.

The modern position. The Supreme Court has repeatedly described India as federal with a strong centre, and has treated the relationship as one of co-operative federalism, most recently in the goods and services tax cases.

An answer should give all three and date them.

How to answer the question

State the four conditions and apply them. All four are satisfied, so India is federal in structure.

Give the centralising provisions with their article numbers, grouped as above, and note that each is conditional.

Give the two authorities and the movement between them.

Conclude with a formulation rather than a label. The most defensible is that India is a federation with a strong centre, in which the federal principle is part of the basic structure and the centralising provisions are conditional and reviewable, and that the label quasi-federal describes the operation of the system in its first four decades better than it describes the constitutional design.

A worked example

The Union wishes to legislate on agriculture, a State subject under Entry 14 of List II.

Route one, article 249. A Rajya Sabha resolution by two thirds of the members present and voting that it is necessary or expedient in the national interest, valid for one year and renewable.

Route two, article 252. Two or more States pass resolutions requesting Parliament to legislate, and the Act then applies to those States and to any other adopting it.

Route three, article 253. Parliament legislates to implement an international agreement, notwithstanding the distribution in article 246.

Route four, article 250. During a Proclamation of Emergency.

Four routes, none requiring the consent of the State affected except in route two. That list, given with the article numbers, is the strongest single paragraph an answer on this question can contain.

The cases

Facts. State of West Bengal v. Union of India, AIR 1963 SC 1241, arose when the Union, under the Coal Bearing Areas (Acquisition and Development) Act 1957, sought to acquire coal-bearing land vested in the State of West Bengal, which sued under article 131 on the footing that a federal constitution barred the Union from acquiring State property.

Held, by the majority. The Constitution is not traditionally federal; there is no separate constitution for each State, Parliament may alter State boundaries, citizenship is single, the judiciary is unified and the residuary power is central; the Act was valid.

Why it matters here. It is where the quasi-federal characterisation entered the Supreme Court's own reasoning, and it must be dated when cited.

Facts. S.R. Bommai v. Union of India, (1994) 3 SCC 1, arose from Presidential proclamations under article 356 dismissing State governments.

Held, by a Bench of nine. Federalism is a basic feature of the Constitution; a proclamation under article 356 is justiciable and the satisfaction reviewable; the material may be examined; the floor of the House is the appropriate forum for testing majority support; and the Assembly should not be dissolved before both Houses of Parliament approve.

Why it matters here. It is the answer to the 1963 characterisation and the case an answer should end on.

Distinctions

What beginners get wrong

"Wheare called India quasi-federal, and that settles it." Wheare wrote before 1994 and before the practice changed, and a nine-judge Bench has since held federalism to be a basic feature.

"India is unitary with federal features." That reverses the structure. The distribution of powers is constitutional and entrenched; the centralising provisions are conditional exceptions to it.

"The strong centre makes India unique." Canada was designed with a strong centre too, and has become one of the world's most decentralised federations in practice.

Limits and criticism

The label distracts from the questions that matter, which are fiscal dependence, the office of Governor, and the use of article 356.

Practice and design must be distinguished. The design has not changed since 1950; the practice has changed twice, towards the centre until 1989 and away from it afterwards.

The basic structure protection is against amendment only. It does not prevent the use of the centralising provisions the Constitution already contains.

Quick revision

1. The four conditions are satisfied, so India is federal in structure.
2. Centralising provisions: articles 3 and 4; 248; 249, 250, 252, 253; 155 and 156; 200; 256 and 365; 312; 353 and 354; 356.
3. Entrenchment: the proviso to article 368(2), ratification by half the States for the enumerated matters.
4. State of West Bengal v. Union of India, AIR 1963 SC 1241: not traditionally federal.
5. S.R. Bommai v. Union of India, (1994) 3 SCC 1: federalism is a basic feature.
6. Practice moved after 1994: fewer proclamations, the GST Council, coalition politics.
7. Conclude with a formulation, not a label: a federation with a strong centre, the federal principle being part of the basic structure.

Test yourself

1. Give five centralising provisions with their article numbers. Article 3, permitting Parliament to alter a State's area, boundaries or name by ordinary law after a non-binding reference. Article 248 with Entry 97 of List I, the residuary power. Article 249, permitting Parliament to legislate on a State subject on a two thirds resolution of the Council of States. Article 155, the appointment of the Governor by the President. Article 356, the assumption of a State's functions on the President's satisfaction, backed by article 365.

2. What did S.R. Bommai add to the argument? That federalism is a basic feature of the Constitution, so a constitutional amendment destroying it would be void; that a proclamation under article 356 is justiciable and the President's satisfaction reviewable for relevance and mala fides; that the material on which it rests may be examined; that the floor of the House is the appropriate forum for testing majority support; and that the Assembly should not be dissolved before both Houses of Parliament approve.

3. How would you answer "Is India federal?" in an examination? State the four conditions of federalism and apply them, concluding that all four are satisfied. Group the centralising provisions with their article numbers and note that each is conditional. Give both authorities and date them: State of West Bengal v. Union of India, AIR 1963 SC 1241, and S.R. Bommai v. Union of India, (1994) 3 SCC 1. Conclude with a formulation rather than a label: a federation with a strong centre, in which the federal principle is part of the basic structure and the centralising provisions are conditional and reviewable.

4. Why is the label less useful than the analysis? Because it stops the argument where the interesting part begins. What matters is not what India is called but how the centralising provisions are used, and the answer to that has changed twice: proclamations under article 356 were frequent until 1994 and rare afterwards, and the fiscal relationship, which no label captures, does more to determine State autonomy than any of the provisions in the list.