Insights into Editorial: The state of the Indian federation
25 July 2016
The Indian nation is said to be a federation with a unitary bias. This explains the relationship between the centre and the states in India.
Constitutional provisions on centre-state relations:
Part XI of the Indian Constitution (Articles 245 through 263) deals with centre-state relations. It covers legislative and administrative relations between states. The financial relationship between the centre and states is covered in Part XII of the Indian Constitution, including Article 280 that deals with the mandate for setting up a periodic Finance Commission.
Why Indian Constitution is said to be federal in form, but unitary in spirit?
The phrase “unitary bias” arises because residuary powers—the power to legislate on matters not enumerated in the central, state or concurrent list of subjects—is given to the centre under Article 248. This is unlike the constitutions in many other federations such as the United States, Germany and Australia where such power is conferred on the states.
The Centre was made more powerful as is revealed from the following facts:
Single Citizenship: The Indian federation is a dual polity with a single citizenship for the whole of India. There is no State citizenship. Every Indian has the same rights of citizenship, no matter in which State he resides.
A Strong Centre: The result of the distribution of powers between the federation and the units is that the State Governments are governments of limited and enumerated powers. Though the Union Government is also a government of limited and enumerated powers, it has, under certain circumstances, power even over the State Governments and the residuary power over the whole territory.
Single Constitution for Union and States: Indian Constitution embodies not only the Constitution of the Union but also those of the States. Furthermore, the States of the Indian Union have a uniform Constitution. The amending process both for the Constitution of the Union and the States is also the same.
Centre Can Change Name and Boundaries of States: In India, the Centre has a right to change the boundaries of the States and to carve out one State out of the other.
Single Unified Judiciary: In India, the Supreme Court and the High Court’s form a single integrated judicial system. They have jurisdiction over cases arising under the same laws, constitutional, civil and criminal. The civil and the criminal laws are codified and are applicable to the entire country. To ensure their uniformity, they are placed in the Concurrent List.
Unitary in Emergencies: The Indian Constitution is designed to work as a federal government in normal times, but as a unitary government in times of emergency. Under the Constitution, the President of the Republic has been given emergency powers. An emergency can arise both in the political and financial fields.
Common All-India Services: The Constitution has certain special provisions to ensure the uniformity of the administrative system and to maintain minimum common administrative standards without impairing the federal principle. These include the creation of All-India Services, such as the Indian Administrative and Police Services and placing the members of these services in key administrative positions in the States.
Inequality of Representation in the Council of States: There is bicameralism in India but in the Council of States, States have not been given equal representation. Here population system has been followed and bigger States have been given greater representation than the smaller ones.
Appointment of Governor by President: The Heads of the State—the Governor—are appointed by the President. They hold office during his pleasure. This enables the Union Government to exercise control over the State administration.
Appointment of the High Court Judges by the President: Appointments to the High Courts are made by the President, and the Judges of the High Courts can be transferred by the President from one High Court to another.
The Office of the Comptroller and Auditor-General: The Comptroller and Auditor-General of India has an organisation managed by the officers of the Indian Audit and Account Services, a central service, who are concerned not only with the accounts and auditing of the Union Government but also those of the States.
Centralized Electoral Machinery: The Election Commission, a body appointed by the President, is in charge of conducting elections not only to Parliament and to other elective offices of the Union, but also to those of the State Legislature.
Flexible Constitution: The Indian Constitution is not very rigid. Many parts of the Constitution can be easily amended.
Special Powers of Council of State over State List: The Parliament is also authorised by the Constitution to make laws on any subject mentioned in the State List, if the Council of States passes a resolution by a two-thirds majority declaring a particular subject or subjects to be of national importance. Similarly, Parliament can pass laws on the items of State List, if it is deemed essential by the Government of India to honour an international obligation. In short, in India the Centre can encroach on the field reserved for the States as and when it feels necessary.
Control over State Laws: Certain laws passed by the State Legislature cannot come into operation unless they have been reserved for the approval of the President of India. Thus, all the laws concerning the acquisition of property, all laws on Concurrent List which are contrary to the laws passed by the Parliament; and the laws concerning the sales-tax on essential commodities, etc. need the approval of the Central Government. Moreover, the Governor of a State reserves the right to reserve any Bill passed by the State Legislature for the consideration of the President. The President may accord his approval to such a bill or may withhold his assent.
Financial Dependence of States: In a federation, as far as possible, States should be financially self-sufficient so that these enjoy maximum autonomy. But in India, the States depend on the Centre for all development. They have much less sources of income but many more needs of expenditure. This financial dependency has very much hindered the growth of States on federal lines.
Why Drafting Committee used “Unitary” in place of “Federation”?
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 to join a federation and that the federation not being the result of an agreement, no state has the right to secede from it. It also explains the fact that the Union is indestructible but not the States; their identity can be altered or even obliterated.
What has been done to improve the centre-states relations?
Despite bias, in the early years after independence, the central government took many steps to encourage a federal character to its functioning.
- A National Development Council was set up in 1952 and a National Integration Council was similarly set up in 1962.
- Annual conferences were held between the centre and state chief ministers on finance, labour, food and other functional areas.
- The first constitutional body—called the Inter-State Council (ISC)—was set up in 1990 following the initial recommendation of the First Administrative Reforms Commission (1969), which was endorsed by the Sarkaria Commission on centre-state relations (1988).
- During the intervening years, there was a gradual centralization that diminished the political, legislative and administrative power of the states.
What else needs to be done?
For now, the interstate council should be further strengthened to become the critical forum for not merely administrative but also political and legislative give and take between the centre and states.
- It should function in such a manner that it reflects the equal status of states and the centre. It should meet once a year.
- Even though the ISC’s mandate is very broad, its aspiration has generally been limited to discussing affirmative action, welfare subjects and administrative efficiency and coordination.
Conclusion:
While India needs as many forums as it can get to improve implementation efficiency, the ISC should not be one of them. Along with another constitutionally sanctioned entity—the Finance Commission (FC)—the ISC should be the body that puts the “federation” back in the definition of the Indian nation. Together, the FC and the ISC should operationalize again Part XI and XII of the Constitution that ensure appropriate financial devolution and political decentralization. India’s true potential will be achieved only when both the centre and the states are strong.
