RESPONSE PAPER 1
Federalism is a basic feature of the Constitution as held by the Supreme Court in S.R. Bommai vs. Union of India (1994) case. It tested for the first time the presidential notification under Article 356 on the touchstone of the basic structure doctrine. Earlier, only constitutional amendments were put to such a test. The Supreme Court has accepted among such decisions that India is a quasi-federal state because the Union has been given many overriding powers over the states.
The most extreme of these powers is given under Article 356 under which the Union can dismiss any state government.
After independence, India opted for a strong center to check the tendencies of the states to want to separate, as independence had been achieved at the cost of country’s criticism. Most provinces wanted freedom, which is why many powers were given to the Union Government, which should not have been given under normal circumstances. Some of these legitimately belong to states like the subordinate judiciary works under the high court, which is not set up by the state, and its judges are appointed by the center.
The big hope emanating from the judgment was that the court’s intervention would instigate a flow of political activity at all levels of government that would, where necessary, transform the social order, and the significance of the judgment was instilled in that hope.
It is true that Indian federalism has an in-built tendency to centralize under certain circumstances, which is where the question of whether India is federal or quasi – federal comes into play.
India balances 2 main features, which makes it a unique federal structure. The two inherent tendencies involve both unionization and regionalization. The unionization process allows Indian federalism to assume centralized federalism when there is a perceived threat to the maintenance of national unity, integrity and territorial sovereignty of India, and the maintenance of constitutional-political order in the states. However, the union’s prerogative of perception and definition of ‘threat’ is not absolute. This is subject to review by the Apex Court. This has become evidently clear from the Supreme Court’s ruling in the S.R. Bommai case. It is only in the abnormal times (as the essence of the Emergency Provision suggests) that the Indian federalism assumes the characteristics of centralized federalism.
However, the union does not just have absolute power. The unionization process constitutionally confers upon the union government the added responsibility of securing balanced economic growth and social change across the regions and social segments through means and measures of mixed economy and state regulated welfare planning. Thus the constitution primarily ensures that the state and the union government are coordinating partners, and nothing beyond this. On the other hand, India also recognizes ‘regionalism and regionalization’ as valid principles of nation-building and state formation. The mere presence of “Unitary” features in a constitution, which may make the Constitution ‘quasi federal’ in law does not prevent the Constitution from being predominantly federal in practice.
Federalism in India has been fine tuned to accommodate ethnic diversity and ethnic demands like application of customary law in the administration of civil and criminal justice.
Federalism of India essentially functions on the basis of territorial decentralization, which combines both the center and non-centralized models of federalism. If federalism in India deviates from the classical reference to American federalism, it is only for the purpose of accommodating diversity and to serve its national interests. But in no way does it alter the essential features of federal governance. It is only because the model is one that is multi layered that the distribution of power is lop-sided.
Contrary to the wisdom of Dr. Ambedkar, Article 356 has been abused, misused and overused for years. It has been used to ‘maintain the constitution’, and rest of the time abused to settle political scores usually dictated by the ruling party at the center. The most harmful aspect of its abuse is that in most of the cases it has looked past the basic premise of India’s federalism. The judicial verdict of Supreme Court, S.R. Bommai vs. Union of India (1994) is of the highest relevance. The Court held that the President’s satisfaction, though subjective in nature, is the essence of Article 356. However, the President’s satisfaction must be based on some relevant and objective material. President’s power is conditional, and not absolute in nature. The Court held: “secularism is one of the basic features of the constitution. While freedom of religion is guaranteed to all persons in India, from the point of view of state, the religion, faith or belief of a person is immaterial. To the state, all are equal and are entitled to be treated equally. In matters of states, religion cannot be mixed. Any state government, which pursues un-secular policies or an un-secular course of action, acts contrary to the constitutional mandate and renders itself amenable to action under Article 356.” In order to prevent such blatant abuse of power, it needs to be ensured that there is maximum objectivity and transparency in the exercise of the power by the President, and there needs to be some sort of codification of specific grounds on which Article 356 can be invoked, and not on subjectivity of the President.
The basic spirit of Indian federalism is coordinated and cooperative functioning of the union, where center and states are equal partners in making the union a success. Even the overwhelming presence of center to centralize federal powers and curtail states’ autonomy is mostly circumstantial. The center cannot exercise these powers arbitrarily. It has been sufficiently subjected to the accountability, scrutiny and approval of the parliament and due process of law.
Cite this Federalism in India
Federalism in India. (2017, Jan 14). Retrieved from https://graduateway.com/federalism-in-india-2/