Nature of the Indian Constitution

Though the members of the Drafting Committee of the Constituent Assembly called the Indian Constitution federal, however it is nowhere mentioned in the Constitution document itself, some jurists dispute this title. The western scholars generally take the US Constitution as a role model of the federal constitution and exclude those constitutions, which don‘t confirm to it from the nomenclature of federalism. But now, it is increasingly realized that any assumption of such a typology is fallacious and it is generally agreed that the question whether a state is unitary or federal is one of degrees and whether it is a federation or not depends upon the number of federal features it possesses.

What is a federation?

It is a group of regions or states/ units with a central government or a federal government. A federation has a well established dual polity or dual form of government, i.e. the field of government is divided between the federal and the state governments which are not subordinate# to one another, but co-ordinate and are independent within their own spheres. Therefore, the existence of co-ordinate authorities independent of each other is the gist of the federal principle.

Essential characteristics of federation 

1. Distribution of powers: An essential feature of a federal constitution is the distribution of powers between the central government and the governments of the several units that constitute the federation.
2. Supremacy of the constitution: The constitution is binding on the federal and the provincial governments. The central government and the state governments derive their powers from the Constitution. Also, neither of the two types of governments should be in a position to override the provisions of the constitution related to the powers and status enjoyed by the other.
3. Written Constitution: The constitution must be a written one. This is basically to avoid any doubt about the supremacy of the constitution as well as to clearly demarcate the powers between the central and the provincial governments.
4. Rigidity of the Constitution: This feature is a corollary to the supremacy of the constitution. Rigidity does not mean unamendability but simply means the power of amending the Constitution, especially those regulating the status and powers of the federal and the provincial governments, should not be confined exclusively either to the federal or the provincial governments.
5. Authority of the Courts: There must be an authority that can prevent the federal and provincial governments from encroaching upon each other’s powers. Secondly, there should be a final supreme court which should not be dependent upon the federal or provincial governments and should have the last word in the matters involving constitutional affairs.

The Indian Situation 

A perusal of the provisions of the Indian Constitution reveals that the political system introduced by it possesses all the aforesaid essentials of a federal polity.

The Indian Constitution establishes a dual polity with Union at the Centre and the States at the periphery, each enjoying powers clearly demarcated by the Constitution. The Constitution is written and supreme, with enough power to declare enactments in excess of the powers of the Union or State Legislatues as ultra vires. This has been firmly established after the Keshavananda Bharti case in 1973. 

Moreover, no amendment making any change in the status or powers of the centre and the States is possible without the participation of the States (under Article 368). Finally, the Supreme Court is the apex authority to interpret th Constitution of India as well as decide disputes arising out of Centre-State relations.

Even though all the five essential characteristics are present in the Indian Constitution, under certain circumstances, the Constitution empowers the Centre to interfere in the matters of the States, which places the States in a subordinate position. This violates the federal principle.

Provisions in the Indian Constitution which are not strictly federal in character 

The question of the extent of federalism is a different matter and in this regard the Constitution of India has certain distinctive features having a bias towards the Centre. The political system of a country is by and large, the outcome of the circumstances which certainly differ from one country to another. 

The following are the provisions in the Indian Constitution which are not strictly federal in character: 

1. In the USA and Australia, the states have their own constitutions which are as powerful as the federal constitution, but in India there are no separate Constitution for the member States with the State of Jammu & Kashmir being an exception.
2. India follows the principle of uniform and single citizenship, but in the USA and Australia, double citizenship is followed.
3. In the USA, it is not possible for the federal government to unilaterally change the territorial extent of a State but in India, Parliament can do so even without the consent of the State concerned. Thus, the States in India do not enjoy the right to territorial integrity.
4. If the President declares national emergency for the whole or a part of India under Article 352, Parliament can make laws on subjects, which are otherwise, exclusively under the State List. Parliament can give directions to the States on the manner in which o exercise their executive authority in matters within their charge. The financial provisions can also be suspended. Thus, in one stroke, the Indian federation acquires a unitary character. However, such a situation is not possible in other federal constitutions.
5. The Schedule VII of the Indian constitution distributes the legislative subjects on which the Parliament and the State legislatures can enact laws under three lists: Union, State and Concurrent. The Union List contains 99 subjects over which Parliament has exclusive control, while the State List contains only 61 subjects over which the state legislatures have control. Moreover, the most important subjects, except only one i.e. the state tax are under the Union List. 
   
   Further, in the event of a conflict between the Union and the State laws on the Concurrent subjects, the latter must give way to the former to the extent of such contradiction. Furthermore, the Residuary power, i.e. the power to enact laws on subjects not falling under any o f the three Lists lies with the Centre (Canadian model) and not with the States, as is the case in USA and Australia.
6. Parliament has the exclusive authority to make laws on the 99 subjects of the Union List, but the States do not have such an exclusive rights over the State List. Under certain circumstances and situations, Parliament can legislate on subjects of State List. There are five such situations

·         Under Article 249, if the Rajya Sabha passes a resolution with not less than 2/3^rd majority, authorizing Parliament to make laws on any State subject on the ground that it is expedient or necessary in the national interest, Parliament can legislate over that subject. Such laws shall be in force for only one year and can be continuously extended any number of times, but for not more than one year at a time.

·        Under Article 250, if national emergency is declared under Article 352, Parliament has the right to make laws with respect to all the 61 State subjects automatically, i.e. the State List is transformed into the Concurrent List.

·      Under Article 252, if the Legislatures of two or more States request Parliament to legislate on a particular State subject, Parliament can do so. However, such legislation can be amended or repealed only by Parliament.

·      Under Article 253, Parliament can make laws even on State List to comply with the international agreements to which India is a party. The States can not oppose such a move.

·   Under Article 356, if President’s rule is imposed in a State, the powers of the Legislature of that State become exercisable by or under the authority of Parliament. This gives Parliament full powers to legislate on any matter introduced in the State List.

7. Under Article 155, the Governor of a State is appointed by the President and the former is not responsible to the State Legislature. Thus indirectly, the Centre enjoys control over the State through the appointment of the Governor.
8. If financial emergency is declared by the President under Article 360 on the ground that the financial stability or credibility of India or any of its units is threatened, all the Money Bills passed by the State Legislatures during the period of financial emergency are also subject to the control of the Centre.
9. Under Article 256, the Centre can give administrative directions to the States which are binding on the latter. Along with directions, the Constitution also provides measures to be adopted by the Centre to ensure such compliance.
10. under Article 312, the All India Services officials- IAS, IPS and IFS (forest)- are appointed by the Centre, but are paid and controlled by the State. However, in case of any irregularities by the officer, States cannot initiate any disciplinary action except suspending her and making a non-binding recommendation to the Centre for shifting of the cadre of the official or termination of the official.
11.  Judges of the High Courts are appointed by the President in consultation with the Governors under Article 217 and the States do not play any role in this.

Thus, apart from certain provisions biased towards the Union, the Constitution of India, in normal times is framed to work as a federal system. But, in times of war and other emergencies, it is designed to work as though it were unitary. The federal constitutions of the US and Australia, which are placed in a tight mould of federalism can not change their form. They can never be unitary as per the provisions of the Constitution. But, the Indian Constitution is a flexible form of federation- a federation of its own kind. That is why Indian federation is called federation sui generis. 

The logic of framing of such a constitution lies in the typical historical legacy of India and the immediate incidents happening in India around the time the Constitution was being worked upon. Historically, India has been diverse in its composition and at times diversity has led to centrifugal political tendency. To prevent emergence of another such tendency in the country and to deal with it if it actually emerged somehow to keep the country and its units together the unitary bias was required in the Constitution of India.

Secondly, the nation had seen partition on an extremely unscientific logic, which defies India’s mainstream politics and its historical progress. Division of the country on the basis of religion was a dangerous sign for a diverse nation like India, where faith had remained a matter of personal belief. To prevent any such occurrence on the basis of religion, language or any other socio-cultural attributes in any particular region of the country and in the event of such an occurrence, the need for a unitary authority was considered necessary. Hence the diversion from so-called true federalism or bias towards the Union in terms of distribution of powers in times of extra-ordinary situations. 

Differences between a federation and a confederation 

1. Federation is a close legal association between two or more units while confederation is a loose association of two or more units.
2. In a federation, the units generally do not have the right to secede, as in India and Pakistan, but in case of a confederation, the states always enjoy the right to secede, as in present CIS and erstwhile USSR.
3. A federation is sovereign body while in a confederation, the units or states are sovereign.
4. In federation, there is a legal relation between the federation and its people but in confederation the people are citizens of the respective units of confederation.

Indian Constitution- the beginning

A constitution is a document of people’s faith and aspirations that has a special legal sanctity. It is the fundamental law of a country. There are various forms of government prevalent across the world. The philosophy embodied in a nation’s constitution determines the kind of government present there.

The idea of constitutionalism suggests ways and means to work out a governmental form, which exercises power and ensures at the same time, individual freedom and liberty.

Moreover, these government institutions are essential for the smooth functioning of society. But, the power of the state should not be absolute.

Constitutionalism suggests a way for reconciling the power of the state with individual liberty, by presenting the principles of organizing the state.

The constitution outlines the vision of the state and is its most important document. It is an expression of faith and hopes that people have from the state and promises that they wish to make for the future.

A constitution ensures certain rights to its citizens as well as defines their duties, e.g. Part III of the Indian Constitution.

Is Constitution Static?

A constitution is an extension of the philosophical and organization frameworks into the future.

But a state has to face the challenges of changing social, economic and political conditions in society.

All living constitutions provide for procedures for introducing changes in them by means of amendments. So, the constitution is not static.

Written and unwritten constitutions: Constitutions of most countries came into existence as a result of a conscious decision to have such a document. There are written constitutions, which provide institutional arrangements and procedures. But, the laws and institutions of British Constitution have gradually evolved over the centuries. The British Constitution is unwritten constitution. It comprises constitutional conventions that act as precedents for the working of institutions and other documents such as the statutes and Acts of Parliament. Here the Parliament is supreme, unlike the countries which have adopted a written Constitution, where the Constitution is supreme.

In Britain, any change in the Constitution is possible by means of laws passed by Parliament. There is no distinction between an ordinary law and a constitutional law. This is an example of the most flexible constitution.

FRAMING OF THE CONSTITUTION

The Indian Constitution was framed and adopted by the Constituent Assembly of India. As per the Cabinet Mission Plan of 1946, the Constituent Assembly was set up in November, 1946. It was not a sovereign body since it had to work within the limits imposed by the Cabinet Mission. After the passage of the India Independence Act of 1947, granting independence to India, the sovereign character of the Constituent Assembly was established per se. 

However, this could still not be technically considered sovereign because it was not elected by the populace of India as part of its decision making, which could only begin in 1951/2 when the nation voted for the first time to decide its own future. But, by then the Constitution had been fully adopted and the elections were also held in accordance with the procedures laid down in the same Constitution. But, the Constituent Assembly got its validity and hence legality considering the fact that the leaders of the body were those who had genuine support of the masses, as was evidenced during the first general and assembly elections across the length and breadth of the country. 

Technically speaking the Constituent Assembly could be called quasi-sovereign, but that was the most suitable possibility for the an emerging nation, which was yet to fully understand the concept and functionality of the modern nation-state.

Members of the Constituent Assembly were elected indirectly by the Provincial Assemblies in the ratio of one member per one million population. There were a total of 389 members in the Constituent Assembly, of which 296 seats were elected by the members of the Provincial Assemblies and the rest were nominated by the Princely States. The first meeting of the Constituent Assembly was held on 9^th December, 1946 with Sachidanand Sinha elected as its interim president. Later, Dr Rajendra Prasad was elected as the President of the Constituent Assembly.

The Constituent Assembly formed thirteen important committees for framing the Constitution. The Drafting Committee was headed by Dr BR Ambedkar and the draft constitution was published in January 1948. The Constituent Assembly discussed the draft and finally adopted the Constitution on 26^th November 1949 with some of the provisions taking effect immediately. The Constitution was implemented and made fully operational on 26^th January, 1950.