INTRODUCTION

“Federalism is the best curb on democracy. [It] assigns limited power to the central government. Thereby all powers are limited. It excludes absolute power of the majority.”

– Lord Acton

The population of India, in July 2020, reached 1.38 billion and is still growing. India has the second-largest population in the whole world. A country with such a vast population and a diverse culture needs a very strategic and stable kind of government that can govern such a big diversity and maintain peace. So, to run this country, the Constitution of India was enacted in 1950 and through the nature of the Constitution, it can be easily said that India has a federal system of government.
There are mainly two forms of government – Unitary and Federal. In the Unitary form of government, the power is centralized in the center, and in the Federal form of government; the sovereign power is divided among various units. It can be also called a ‘Federation’ or a ‘Federal state’ and the units, in which the power is divided, in the case of India, are the Centre, the states, and the municipalities (Panchayats).
The Constitution of India is compromised by features that are borrowed from different countries’ constitutions. Similarly, the Federal scheme is taken from the British Government of India Act, 1935. But, the Federal scheme was brought by the British to rule the colony of India and after the independence of India, the picture was very different. Administering a colony is far different from creating a federation which can bring people of different, religions, cultures, and traditions together. So, the Centre was given extensive power, on the legislature and executive side, then the State, and because of this distinctive feature, it can be said that India has a Quasi-Federal system of Government. In the year 1994, in the case of Bommai v. Union of India, the Supreme Court stated that the Indian Constitution is quasi-federal in nature. The reason was given that the word ‘federal’ is not present in the Constitution.
Federalism is one of the most basic features of the Constitution of India and this constitution makes the Union an indestructible one. The framers of the Constitution knew very well that it will not be possible to impose a Unitary form of government and a complete Federal scheme will cause distrust and chaos between the states. It was important that a strong government to be created and the power should be divided among the states and the center separately, given that the center should be given some more power. Part I of the Constitution of India is named ‘The Union and Its Territory’ and article 1 of the constitution of India says that India is a union of state. It means that India is formed by the union of different states and also there exists a federal scheme with more power in the center.

HISTORY

India came out from the shackles of slavery and gain independence on 15th August 1947 through the India Independence Act, 1947 at midnight of the above-mentioned date. But peace never comes free of cost. It always comes with a price. Independence came with the division of Pakistan. The country was in chaos and their communal riots all over the country. The biggest problem that was lying in front of the leaders was bringing a constitution that can bind the people of India together and run the administration of the country smoothly and equally. On 26th November 1949, the Constitution of India was adopted and legally enforced on 26th January 1950 and is recognized as Republic Day. The framers of the constitution were influenced by the British’s experience of autonomy which was inscribed by the Government of India Act, 1935, and the popularity of Federalism throughout the world.
The Post-Independence period was a period where there was patriotism and unity in the hearts of the people as well as there were differences on the basis of religion which was widening because of the India-Pakistan partition. The people needed a leader that can guide and control the situation so that everyone and everything can be brought to calm. A leader cannot monitor everything from the center. So, division of power among the states and the center was necessary, i.e., a federal structure.
The very foundation of the making of the Constitution of India was laid down in Constituent Assembly met in the Constitution Hall, New Delhi on 13th December 1946. The objective resolution’s speech was presented by Pt. Jawaharlal Nehru and Dr. Rajendra Prasad was the Chairman of the Chair. The objective was in the form of a pledge and the first line of the resolution said, “This Constituent Assembly declares its firm and solemn resolve to proclaim India as the Independent Sovereign Republic and to draw up for her future governance a Constitution.” The proposal for putting up a Constitution for a free India was proposed by this Objective resolution. The objective was passed by the Constituent Assembly and the important ideas of the resolution were; to constitute India into an independent, sovereign, and democratic republic; the Union of India will be formed of the Indian provinces and other parts of India that are willing to be its part; all parts of independent India and their ruling institutions derive their power from the people of India.
The objective of the resolution was to influence the Muslim league and the Princely states to come and join the Union of India. The demand for the division of India-Pakistan led the leaders to go for a Federal structure with a strong center. The members of the Drafting Committee were affected by this demand by the Muslim league. Dr. B R Ambedkar, playing one the most crucial roles in the drafting committee said that he would like to propose a strong center, which is stronger than the Centre in the Government of India Act, 1938.

Criticism

No change can be brought into society without criticism and questions. Many questions were raised and were answered. Dr. B R Ambedkar stood very much clear and strong on his stance for a strong center and reacted to the criticism very firmly.
In his speech in the Constituent Assembly in 1946, he said he had always opposed the idea of a grouping of the provinces. He said that sometimes before, the idea of Strong center was abandoned by the Congress party. He was very much certain about his criticism. He added a question in his speech about the resolution that why there is no mention of the idea of the grouping or union of provinces that he and his party were ready to accept. He also agreed that he never like this particular idea of grouping; but now that it had been done, there should be a mention of it in the resolution.
Many other conflicts and controversies were raised in the constituent assembly too. One of the main controversies that approached in the assembly was asked by the Constitutional advisor, Dr. B N Rao about the term ‘Union’ and proposed the idea of the word, ‘federation’. But, this idea was rejected. Two reasons were given for using the term ‘Union’ instead of ‘federation’ – The Indian Union was the result of the grouping of British provinces and princely states and there was no agreement between sovereign states (British provinces and princely states were not sovereign states before Independence); the states cannot secede from the Union. The above reasons were stated by Dr. B R Ambedkar in the constituent assembly. It can be very well seen that even if the word ‘federation’ is not used in the constitution, it contains most of the federal idiosyncrasy like other federations which are discussed later in the article. Many questions were confronted that the Constitution of India is neither Unitary nor Federal. Dr. B R Ambedkar lightens up the federal nature of the constitution by bringing forward facts that make the Constitution of India of federal nature. The Union at the Centre and state has been provided with different sovereign powers by the Constitution of India and no one is subordinate to the other.
The Draft Constitution was discussed in depth by the members of the constituent assembly. Many amendments were proposed. Some of them were accepted and some of them were rejected after in-depth discussions and debates. Finally, the concept of a strong center was accepted, giving residual powers to the state and making the Constitution, the supreme authority. Thus, India became a Union of states, not a federation of states.

UNITARY AND FEDERAL NATURE

There have been a lot of debates going around about the nature of the Constitution India possesses. It is nowhere mentioned in the Constitution that India has a federal nature but it does possess the same as it has been very well explained by Dr. B R Ambedkar. The Federal nature of the Constitution of India is different from that of other countries. The basic structure of the Indian Constitution is based on the Government of India Act, 1935, and the federal scheme with a strong center is taken from the Constitution of Canada.
There are many conflicts in the country for the character of the governing system of India: Is it Federal or Unitary? The Indian Constitution has divided the power between States and Centre through the Union, State, and Concurrent lists and demonstrating the federal nature; also the Constitution contains various provisions which gives the center a dominant position demonstrating the unitary nature of the Constitution. KC Wheare has remarked that “India is a unitary state with subsidiary federal nature rather than a federal state with subsidiary unitary nature.” It can be said that India neither has complete federal characteristics nor possess complete unitary characteristics. It lies somewhere in between them.
There are some important features that make a country federal in nature like, the supremacy of the constitution, dual polity, division of power, and an independent judiciary. All these necessities are present in India.
The Constitution of India is above every law. It holds its supremacy in every field. In the case of Minerva Mills v. Union of India, it was decided that nobody is above the constitution and the constitution is the supreme law of the land. Everything is bound by the constitution; be it the people of the country or the organs of the government or legislature or executive or judiciary. Also, the Constitution of India is the supreme fundamental law and all laws have to be in consonance or accord with the Constitution. The constitutional provisions postulate the conditions for the functioning of the legislature and the executive and prescribe that the Supreme Court is the final interpreter of the Constitution. All statutory laws are required to conform to the fundamental law, that is, the Constitution.
After supremacy, division of power comes into the picture. There is a division of power between the States and the Union. Each is bestowed with sovereign powers granted by the Constitution of India. The Union looks after the matter that is of national importance mentioned in the Union List and the State looks after the matters of regional and local importance mentioned in the State list. Also, there is a Concurrent list, which is looked after by both State and the Union. This division of power gives rise to dual polity which is the spirit of federalism.
The last component of federalism is an independent Judiciary. There is an independent judiciary which is established by the constitution of India. It is headed by the Supreme Court of India. The formation of the Supreme Court of India is provided in Article 124(1). The formation of the independent judiciary for two main reasons – (i) to establish the supremacy of the Constitution by the power of judicial review, (ii) to resolve the altercations between state and center.
But, despite all these features, India cannot be called a complete federal state. There are still certain provisions in the Constitution of India which deviates from the federal nature of the Constitution and moves toward Unitary nature –

1. For the reasons of national interest, the parliament can make laws with respect to every matter mentioned in the state list. Even if there is an overlapping in the matters of the three lists enumerated in the 7th schedule of the Constitution of India, the Union has got predominance over the state.
2. In financial matters, the Union has more financial powers than that of the state. The central government has many revenue sources and the state has to depend upon the center, mostly, for the revenue.
3. The planning commission empowers the states only to implement the plans. All the planning is to be done at the union level.
4. Parliament holds the power to alter the state boundary and can even form new states and the state has no say in it. The states have been provided with no right to secede from the union.
5. The Union territories, as the name suggests, are under the control of the union directly.
6. The Governor of a state is appointed by the President.
7. The most vital of all is the emergency provisions which, in cases of threat to the security of the nation or in cases of financial or other crisis, shifts all the powers in the hands of the center.
   All these provisions, statutes, and laws show that the Indian Constitution is of the federal nature with a strong Centre.

DIMENSIONS OF FEDERALISM

From the era of pre-independence, via early post-independence time to the present stage, the names and dimensions of Indian federalism have changed a lot according to the situations. Different scholars and professors have awarded the Indian constitution with different names. Dr. Subhash Kashyap called it, “the Indian Constitution establishes a strong center”; KC Wheare called it as “Quasi-Federal”; for Paylee, it is “perfectly federal”; Morris jones named it as “bargaining federalism”.
It is also called asymmetric in nature. The word ‘asymmetric’ means unequal or uneven. Asymmetrical structure in the constitution or asymmetrical federalism means an unequal share of powers between the parts or units of federalism in the legislative, administrative, political, or financial spheres. In the case of State of Karnataka v. Union of India, the court held the same about the federal nature of the Constitution of India saying that the executive and legislative powers are dominated by the Centre. This domination of the Centre over the state in the areas of executive and legislative fields as well as fiscal spheres shows the vertical asymmetry.
Despite all the names awarded, India, most of the times, is said to be a Quasi- Federal state with both Unitary and Federal nature.

CONCLUSION

India is a country whose people are very much connected to the ground of cultural traditions and people related to them. If there was a unitary government, then there may be chances of clashes between government bodies and the citizen of the country. But, the powers are divided from the highest level, that is, the center to the lowest, that is, the regional government. So, there is trust between the government and the citizens.
No other form of government can be good, for a diverse state like India, to rise without disturbing the rights of the citizens. But it can only be fruitful if there is a meeting of minds, trust, and consistency.

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JANHIT ABHIYAN V. UNION OF INDIA

INTRODUCTION:

The writ petition brought before the Hon’ble Supreme Court in this matter challenges the constitutional validity of the latest amendment of the Indian Constitution i.e. The Constitution (One Hundred and Third Amendment) Act,2019 through which the addition of Article 15(6) and Article 16(6) took place thereby making provisions for the reservation of people of the economically weaker sector as well in the educational as well as in the employment sector.

ISSUE:

The following issues arose in the above case before the Hon’ble Supreme Court:

• Whether the above-impugned matter should be dealt with by a Constitutional Bench of five judges since it contains a substantial question of law?
• Whether or not the Amendment Act violates the basic structure doctrine?
• Whether the Amendment Act crosses the limit of only 50% reservation which has already been upheld in various judgments of the Supreme Court?

JUDGEMENT:

The claim of the petitioners was upheld by the Hon’ble Supreme Court. Relying on Article 145(3) of the Constitution of India as well as Order XXXVIII of the Supreme Court Rules, 2013 the Court decided that the main issue of the following case involves a substantial question of law and fulfills the prerequisites of both the above provisions and hence they should be heard by a Constitutional Bench of five judges.
Since the case involves a substantial question of law, the present bench found it beneficial to not decide upon the other two issues of the case i.e. the questions that whether or not the new amendment violates the basic structure and crosses the pre-established limits of only 50% reservation. It found it fit to transfer the case to a larger bench and let it decide the issue.
Hence, the present bench transferred this writ petition and another batch of cases relating to the same issue to a five-judge Constitutional Bench to rightfully decide the case and the substantial issue at hand.

CONCLUSION:

What actually construes as the ‘substantial question of law’ is not given anywhere in ink and paper but has given a somewhat definition through various judgments announced by the Supreme Court over the period. Article 145(3) of the Indian Constitution makes it clear that any case involving a substantial question of law should be adjudged by a Constitutional Bench of five judges. Moreover, the Court in the following case also took into consideration the precedent of M. Nagaraj & Ors. V. Union of India & Ors. (2006) 8 SCC 212, in which it was held in order to examine ‘amendments to equality provisions of the Constitution’, the matter should be heard by a Constitutional Bench. The following amendment being of nature to change the equality provisions of the Constitution, it is best that the matter should be decided by a Constitutional Bench. Hence the following judgment is logically and legally sound.

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“WE THE PEOPLE OF INDIA” the opening words of the most historic period of the Indian people; the first words of the unenforceable preamble of the Indian Constitution of India. Over the course of the Indian democracy these words have offered great insight into the idea of justice and law which the Indian legal system stands for. 

Theory of Social Contract in India

“Our Constitution as appears from the Preamble, derives its authority from the people of India, and learned counsel conceded that it was open to the people to confer on the legislatures established by the Constitution, which they framed through their representatives, power to make laws having operation in relation to periods prior to the commencement of the Constitution.”^[1]

The social shift during the nineteenth and the twentieth century across the world drove the people of the world away from monarchies and oligarchies and instituted the idea of personal liberty and freedom. 

The Indian freedom movement throughout the later half of the nineteenth and the earlier half of the twentieth century is a monument of struggle against oppression and the deprivation of liberty and individual dignity. The establishment of the Indian Constitution marks the closure of the century long struggle of the people of the Indian subcontinent with the establishment of two states, one a theocratic state, and another the secular democratic state of India that is Bharat. 

The theory of social contract is embedded into the legal system of the state of India evidenced with the very foremost sentence of the establishment of the country.

John Locke’s interpretation of the social contract is perhaps the one best suited to explain the nature of the Indian Constitution and how it establishes the state and how it interacts with the people. The surrender of rights is not absolute in the Indian legal system as is evidenced by article 13 of the constitution. The state established by the constitution is as advocated by John Locke in His Second Treatise of Civil Government “A state of liberty; not of license”

“State of Liberty; Not of License”

The theory of social contract solves the great question of the origin of rights, It reverses the idea that only the King, the representative of God is vested with rights in this world and are distributed by him to the people of his land. 

The modern democratic and republic jurisprudence instates that rights are occur in nature and all humans are possessed with simply by the occasion of their birth. These rights of self-protection and survival have complicated themselves with the invention of the idea of property. As Locke argues that all people are possessed with the executive rights of 

Therefore, in the larger interest of the society these rights are surrendered to one entity, the state, for the coagulation of the society itself and establishment of a unified entity i.e. The nation.

Rights

“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”^[2]

As advocated by the theory of social contract, the origin of rights is not in the authority of the ruler, rather in the authority of the subjects being ruled. Therefore, the question of pronunciation of rights that arose at the fall of a monarchical state during the period of political enlightenment, is answered with a variant attitude by the establishment of different democracies. 

Since the identification of the point of origin of rights shifted, representative democracies come into the picture for the sake of pragmatism and administration of nations. Assuming universal adult franchise as an automatically granted phenomenon, the governed indirectly becomes the sovereign. It is safe to say the responsibility of the Indian Parliament is a delegated one, from the people of India. Although the Indian Constitution lays out the authority of the Indian Parliament, deriving an inference from the doctrine of basic structure, so revered by the Law in India, and the interpretations of the court, it is abundantly clear that the power of the parliament originates in the constitution and not vice versa. The constitution of India is the grund-norm. 

Right to Recall

“In this Republic the electors shall have the right to recall their representatives, if so desired, otherwise the democracy shall become a mockery.”^[3]

In the context of the United States of America, the right to recall is fundamentally woven into the declaration of independence. But not so with the case of India. The independence of India was legally, not declared rather granted by the Indian Independence Act 1947 by the English parliament. The constitution of the United States of America adopts the theory of Locke propounded in his Second Treatise of Government. The question begs itself that if the India Constitution has adopted Locke’s theory then why has it missed out on one of it’s most defining features. 

While discussing the Right to Recall, Sardar Vallabhbhai Patel said the following:

“He has moved another amendment in which he suggests that power should be given in the constitution to the voters to recall a member who has lost the confidence of his constituency. I do not see why such a provision should be made. I think it should be left to the honour of the member elected. When he feels that he has lost the confidence of his constituency, he must resign of his own accord, instead of having to be called upon to do so, and having a provision to that effect made in the constitution. A wise member will always keep his finger on the pulse of his constituency and I think instead of putting in such a provision, we should try to develop, a healthy sense of responsibility and sense of honour in the members. If there are any stray instances or some black-sheep who having lost the confidence of their constituency still want to continue to represent that constituency in the House, for some such bad instances we should not disfigure our Constitution. We should leave it as it is, to the good sense of the members concerned.”

It remains astoundingly unclear why the Constitutional Assembly failed to include the Right to Recall as a part of the Indian Constitution. Perhaps the investiture of good faith in future caused an exceedingly optimistic legislature to place their belief in the few as compared to the many. 

Conclusion

Right to recall is a right fundamentally woven into the jurisprudence upon which the Indian constitution has based itself upon and perhaps it is the greatest blunder of the Indian Constitution.

Confidence in representation is the founding stone of a true and effective democracy, and such confidence cannot exist without a mechanism to rectify a situation of no-confidence. Despite the fact that the House of representatives is vested with a power to hold a motion of no-confidence, the Indian citizen remains void of such entitlement. Nonetheless, it is not possible to have true suffrage without the right to cast a vote of no-confiddence.

^[1] Union of India v. Madan Gopal (1954) SCR 541 (655)

^[2] Declaration of Independence, The unanimous declaration of the thirteen United States of America 

^[3] The Revolutioary 1925, Hindustan Republican Association available at http://www.shahidbhagatsingh.org/index.asp?link=revolutionary

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