Critique of Indian Federalism

Topic: LawGovernment
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Last updated: June 9, 2019

Bengal v. Union of India and “Third Sense of Federalism” by Prof.

P. K. Tripathi First, I would like to argue that there is not one proposition which justifies each other butthere are two contrary propositions, though they started out in the same direction but theyfinal result or conclusion are completely different. In the first proposition given in the case of State of West Bengal v.Union of India, theargument given at the bar was that “The Constitution having adopted the federal principleof government the States share the sovereignty of the nation with the Union, andtherefore power of the Parliament does not extend to enacting legislation for deprivingthe States of property vested in them as sovereign authorities. ”16 However, theHonourable Court held that the Indian “…Constitution which was not true to anytraditional pattern of federation”.

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The Sinha, C. J. , argued that in India there waswithdrawal or resumption of all the powers of sovereignty into the people of this countryand the distribution of these powers save those withheld from both the Union and theStates by the Constitution. He continued saying that the legal sovereignty of the Indiannation is vested the people of India and the political sovereignty is distributed between,the Union of India and the States with greater weightage in favour of the Union. 7 Thejudge concluded that “…it would not be correct to maintain that absolute sovereigntyremains vested in the States”.

On examining the various provisions of the Constitution,one can conclude that the distribution of powers – both legislative and executive – doesnot support the theory of full sovereignty in the States so as to render it immune from theexercise of legislative power of the Union Parliament.The proposition given by Prof. P. K. Tripathi as the third sense of federalism which hecalled as the “mythical sense of federalism”18 describes that the Constitution “… nderconsideration does not satisfy the essential and indispensable requirements offederalism…and the use of the expression federal or federalism, in this third sense, isreally speaking spurious .

The conscious object or purpose of this spurious use is…tometamorphose a non-federal constitution into a federal one. ”19 The Constitution underconsideration may not have the requisite features so that it may be considered as aFederal constitution, and the interferences drawn in the case of a federal Constitution isnot available.However, from time to time judges who are dissatisfied with the non-federal character of the Constitution have tried to alter the very nature of the Constitutionthrough the “tool of judicial review”. They make a prior baseless assumption of having afederal Constitution and attack on the provisions which are contrary to the principle offederalism. 20 Deviated from the actual reality they try to create a myth, and argue to makethe myth a reality through judicial interpretation.

21 The proposition given in the case of State of West Bengal, substantially defers from theproposition given by Prof. P.K. Tripathi. In the above case, the majority judges did notact entirely on the basis of the “mythical sense of federalism” as put forward by the Prof. P. K.

Tripathi. Though the argument that the “Indian Constitution is federal” has beenjustified as a myth in the above case. But the later part of the argument by Tripathi hasnot been justified. The judges did not based their claims on the basis of the India to be atruly a federal state and tried to prove its federal character and give judgement for thestate, rather they rejected the claims of the state that they shared sovereignty with theCentre. 2 However, the minority dissenting decision by Subba, J.

, said that “…thepolitical sovereign is the people of India and the legal sovereignty is divided between theconstitutional entities i. e. , the Union and the States, who are juristic personalities possessing properties and functioning through the instrumentalities created by theConstitution. …Within their respective spheres both in the legislative and executive fieldsthey are supreme; their inter se relationship is regulated by specific provisions.23 Themajority decision of West Bengal case has been criticised by many of the authors, judgesand scholars.

24 In the case of State of Rajasthan v. Union of India,25 Beg, C. J. considered the IndianConstitution as “more unitary than federal” and have the “appearance” of a federalstructure. He also said that, “In a sense, therefore, the Indian union is federal. But, theextent of federalism in it is largely watered down by the needs of progress anddevelopment of a country which has to be nationally integrated, politically andeconomically coordinated and socially, intellectually and spiritually up-lifted. 26 Theargument of that Indian Constitution is a federation is nothing but a myth is again proved. There have been incidents when the third sense of federalism as explained by Tripathi hasbeen applied to attack the Indian Constitution as violation of federal principles.

Demandhas been raised from time to time for re-ordering of the Indian federalism due to rise ofmultiple political parties in the regional level, who want to improve their own position.The Government of Tamil Nadu appointed Rajamannar Committee in 1969 to examinethe entire question regarding the relationship that should exist between the Centre and theStates in a federal setup, taking into consideration the provisions of the IndianConstitution and suggest amendments to it for providing greater autonomy to the stateGovernments. 28 The committee made a prior assumption of India being a federal stateand argued on the basis of this, and proposed amendments to the Indian Constitution. Thereport of the committee “presented a classical illustration of the use of the term. e finer federal facet has often been misinterpreted by the central operators. So the battle for federal affirmation and restoration of democratic decentralization has gained momentum over the decade. Important Commissions like Rajamannar and Sarkaria Commission have stressed on the federal soul of the Constitution. In the opinion of Amal Ray, the Indian Constitution is a product of two conflicting cultures one representing the national leader’s normative concern for India’s unique personality and the other over-emphasizing the concern for national unity, security, etc.

And as a result, the founding fathers opted for a semi-hegemonic federal structure where the balance is in favour of the Centre. This concept is aptly described in the insight offered by Dr. Ambedkar: the Indian Constitution would work as a federal system in ‘normal times’ but in times of ’emergency’ it could be worked as though it were a unitary system. The critics of the Indian Federal system must not ignore the fact that not only the Federal Government in India has been made deliberately strong, there is also a centralizing tendency in the other federal states of the world such as Switzerland, Australia, Canada and the United States.In an attempt to assert their independence the States have, at various points of time tried to flout the Centre’s orders. An example was the disobedience of Karnataka to confirm to the Centre’s directives regarding release of water to Tamil Nadu. Such actions have generated wide spread opposition from interested parties.

A similar situation arose when Punjab Termination of Agreements Bill, 2004, was flouted by the State of Punjab recently. The unilateral termination of a tripartite agreement raised a controversy in which the authority of the State to commit such an act is being questioned.Annulling the very basis on which the Supreme Court had pressured the State to implement the river water-sharing agreement of 1981, the Bill has created an unprecedented Constitutional crisis. In a response to the increasing number of water disputes the United Progressive Alliance Government has proposed to set up two Commissions to look into the Centre- State relations, including river water- sharing, and to examine administrative reforms. In the light of the past experiences of misuse of power certain amendments should be effected which will strengthen the federal nature of our Constitution.Firstly, there should be devolution of more financial resources and powers on the States so that they do not have to depend on the Centre for financial assistance. Secondly number of statutory grants to which the States are entitled should increase.

Thirdly, the States should also be given greater autonomy to undertake developmental programmes. Lastly, there should be some inbuilt safeguards against the blatant misuse of Article 356 by successive central Governments.It is time to undertake a study of Indian Federalism with a view to valuate the trends, frictions and difficulties which have developed in the area of inter-governmental relations and to seek to evolve ways and means to meet the challenging task of making the Indian federation a more robust, strong and workable system so that the country may meet the tasks of self-improvement and development. The responsibility lies on not only the jurists and policy framers, but also the citizens of the country to work in a harmonious manner for the development of the country.


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