India, that is Bharat, shall be a Union of States (Art.1). The choice of the word "Union" rather than "Federation" was deliberate. In the Constituent Assembly, Dr Ambedkar explained that it conveys two ideas: that the Indian federation is not the result of an agreement among the units, and that the units have no right to secede from it.
Federal Features
| Feature | Provision | Effect |
|---|---|---|
| Written Constitution | The whole document | The terms of the division of power are fixed and ascertainable |
| Supremacy of the Constitution | Arts.13, 245, 246 | Both Union and States derive their powers from, and are limited by, the Constitution |
| Dual polity | Part V and Part VI | Separate Union and State governments, each with its own legislature and executive |
| Division of legislative powers | Art.246 and the Seventh Schedule | Union List, State List and Concurrent List |
| Bicameralism at the Union | Art.79 | The Council of States gives the units a voice at the Centre |
| Independent judiciary | Arts.124 to 147, 214 to 231 | An impartial arbiter of Union and State competence |
| Rigid amendment of federal provisions | Proviso to Art.368(2) | Amendments affecting the federal scheme require ratification by the Legislatures of not less than one half of the States |
| Inter-State machinery | Arts.261, 262, 263 | Full faith and credit, water disputes, and the Inter-State Council |
Unitary Features
| Feature | Provision | Effect |
|---|---|---|
| Alteration of State boundaries | Art.3 | Parliament may form new States and alter areas, boundaries and names without the consent of the State concerned, whose views are merely to be ascertained |
| Single citizenship | Arts.5 to 11 | No separate State citizenship |
| Integrated judiciary | Arts.124, 214 | A single hierarchy from the subordinate courts to the Supreme Court |
| Residuary powers with the Union | Art.248 and Entry 97 of the Union List | The reverse of the American and Australian position |
| Union legislation on State subjects | Arts.249, 250, 252, 253 | In specified circumstances Parliament may legislate on the State List |
| Governor appointed by the Centre | Arts.155, 156 | The Union's channel of supervision, holding office during the President's pleasure |
| Reservation of Bills | Arts.200, 201 | State Bills may be reserved for the President, who may withhold assent |
| Directions to States | Arts.256, 257, 365 | The Union may give directions, and failure to comply may attract Art.356 |
| All India Services | Art.312 | Officers serving the States but controlled by the Union |
| Single Election Commission | Art.324 | One body for both Union and State elections |
| Integrated audit | Arts.148 to 151 | A single Comptroller and Auditor-General for the Union and the States |
| Emergency provisions | Arts.352, 356, 360 | The federal structure can be converted into a unitary one |
| Unequal representation | Fourth Schedule | Seats in the Council of States allotted broadly by population, not equally |
Why the unitary bias exists: The Constitution was framed in the shadow of Partition, of the integration of over five hundred princely States, and of serious fears about fissiparous tendencies. The framers concluded that a strong Centre was a precondition of holding the country together, and accordingly designed a system that is federal in normal times but capable of becoming unitary in an emergency. This is why the description "quasi-federal", associated with K C Wheare, and Dr Ambedkar's formulation that the Constitution is federal in structure but unitary in spirit in a crisis, are both quoted in nearly every answer on this topic.
Judicial Characterisation
Facts: The Union sought to acquire coal bearing land belonging to the State of West Bengal under a central statute. The State sued under Art.131, arguing that the Union could not acquire State property because that would be inconsistent with federal principle.
Issue: Whether the Constitution is federal in the classical sense, and whether the Union may legislate to acquire the property of a State.
Held: The Constitution is not federal in the traditional sense. It is not the product of a compact between sovereign units; the States have no independent sovereign existence, their boundaries may be altered by Parliament under Art.3 without their consent, and there is single citizenship, an integrated judiciary and an all India service structure. Parliament was competent to legislate for the acquisition of State property, and the suit failed.
Relevance: The classical statement of the unitary reading. Use it as the counterpoint to S R Bommai.
Facts: The Union appointed a Commission of Inquiry into allegations against the Chief Minister and Ministers of Karnataka. The State sued under Art.131, contending that the inquiry trespassed on its constitutional sphere and that its exclusive field had been invaded.
Issue: Whether the suit was maintainable under Art.131 and whether the Union's action invaded the State's federal sphere.
Held: The suit was held maintainable, the dispute being one involving legal rights between the Union and a State. On the merits, the majority upheld the Union's competence. In the course of the judgment the Court examined the federal character of the Constitution at length, observing that although there is a distribution of powers, the Indian Constitution is not a federation of the classical kind and the Centre occupies a position of unquestioned pre-eminence.
Relevance: The standard authority on the scope of Art.131 alongside its extended discussion of federal principle.
Facts: A series of Proclamations under Art.356 dismissing State governments was challenged. The case is principally about President's Rule, but its reasoning turned on the constitutional status of the States.
Issue: Whether federalism is a fundamental element of the Constitution, and how far the Union's power over the States is subject to judicial control.
Held: Federalism is a basic feature of the Constitution. The States are not mere appendages of the Centre; within the sphere allotted to them they are supreme, and the Union may not interfere with their governance except in accordance with the Constitution. The power under Art.356 is therefore an exceptional power, its exercise is justiciable, and the material on which the President acts may be examined by the courts.
Relevance: The counterweight to State of West Bengal. Cite it for the modern position that federalism is not merely a description of the scheme but a constitutional value protected against both executive and amending power.
Reconciling the two lines: The apparent conflict dissolves once the question is separated. Asked whether India is a classical federation on the American model, the answer given in State of West Bengal is no. Asked whether federalism is a constitutional principle protected by law, the answer given in Kesavananda Bharati and S R Bommai is yes. The Constitution is thus federal in the sense that matters legally, namely that the distribution of powers is enforceable and the States' sphere is protected, while remaining unitary in the sense that the Union prevails in a crisis.
Cooperative Federalism
Cooperative federalism describes a system in which the Union and the States, rather than acting in watertight compartments, function as partners through shared institutions.
| Institution | Source | Function |
|---|---|---|
| Inter-State Council | Art.263 | Inquiry into and advice on inter-State disputes, investigation and discussion of subjects of common interest, and recommendations for better coordination of policy |
| Zonal Councils | States Reorganisation Act, 1956 | Statutory, not constitutional; advisory bodies grouping States by region |
| Goods and Services Tax Council | Art.279A | Recommendations on rates, exemptions and the model law, with a weighted voting structure giving the Union one third and the States two thirds of the votes |
| Finance Commission | Art.280 | Recommendations on the distribution of the net proceeds of taxes and on grants in aid |
| National Institution for Transforming India | Executive resolution | Replaced the Planning Commission as a forum for policy coordination |
| All India Services | Art.312 | A common administrative cadre serving both levels |
| Full faith and credit | Art.261 | Recognition of public acts, records and judicial proceedings across the country |
| Inter-State water disputes | Art.262 | Parliament may provide for adjudication, and may exclude the jurisdiction of the courts including the Supreme Court |
Competitive federalism describes the parallel phenomenon of States competing with one another for investment, for central funds and for rank in performance indices. It is not a constitutional concept and finds no place in the text, but it is used in contemporary writing to describe a governance strategy. The two ideas are usually presented together as "cooperative and competitive federalism", the argument being that cooperation on shared objectives is compatible with competition on delivery.
Commissions on Centre-State relations. The Rajamannar Committee (1969), appointed by Tamil Nadu, recommended a substantial devolution of powers and the deletion of Arts.356 and 357. The Sarkaria Commission (1983 to 1988) recommended that Art.356 be used sparingly and as a last resort, that the Inter-State Council be constituted, and that Governors be appointed in consultation with the Chief Minister. The Punchhi Commission (2007 to 2010) recommended localised emergency, a fixed procedure for the Governor's removal, and amendment of Arts.355 and 356.
Illustrations
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State boundaries altered without consent: Parliament reorganises a State despite the Assembly's opposition. This is competent under Art.3, which requires only that the State's views be ascertained, and is the clearest illustration of the unitary bias.
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Union acquires State property: The Union legislates to acquire land owned by a State. Applying State of West Bengal v Union of India (1963), it is competent, since the States have no sovereignty that limits parliamentary competence.
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Federalism as a basic feature: An amendment purports to abolish the State List entirely. Applying Kesavananda Bharati (1973) and S R Bommai (1994), federalism being a basic feature, the amendment is beyond the amending power.
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Ratification requirement: An amendment alters the lists in the Seventh Schedule. The proviso to Art.368(2) requires ratification by the Legislatures of at least one half of the States.
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Residuary power: A subject unknown to any of the three Lists arises for legislation. Under Art.248 read with Entry 97 of the Union List, Parliament alone is competent.
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Cooperative machinery: A dispute over the sharing of river waters arises between two States. Art.262 permits Parliament to provide for its adjudication and even to exclude the jurisdiction of the Supreme Court, so the forum is the statutory tribunal rather than the Court.
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Weighted voting in the tax council: A proposal on rates is put to the Goods and Services Tax Council. Under Art.279A the Union's vote counts for one third and the States' votes together for two thirds, and a decision needs a majority of not less than three fourths of the weighted votes of those present and voting, so neither side can act alone.
Recall Check
- Why did the framers use the word "Union" rather than "Federation" in Art.1?
- List six federal and six unitary features with their provisions.
- How are State of West Bengal v Union of India and S R Bommai reconciled?
Key Cases
State of West Bengal v Union of India (1963) State of West Bengal v Union of India 1963
Issue: Whether the Constitution is federal in the classical sense and whether the Union may acquire State property.
Rule: The Constitution is not federal in the traditional sense, the States having no independent sovereign existence.
Held: Parliament was competent to legislate for acquisition of State property; the State's suit failed.
State of Karnataka v Union of India (1977) State of Karnataka v Union of India 1977
Issue: Maintainability of a suit under Art.131 and the extent of the Union's power to inquire into State affairs.
Rule: A dispute involving legal rights between the Union and a State is maintainable under Art.131; the Centre occupies a position of pre-eminence in the constitutional scheme.
Held: The suit was maintainable but the Union's action was upheld.
S R Bommai v Union of India (1994) S R Bommai v Union of India 1994
Issue: Whether federalism is a basic feature and whether Art.356 is justiciable.
Rule: Federalism is a basic feature; the States are supreme within their sphere and Art.356 is an exceptional power whose exercise is reviewable.
Held: Certain Proclamations were held unconstitutional and the material for the President's satisfaction was held examinable.
Kesavananda Bharati v State of Kerala (1973) Kesavananda Bharati v State of Kerala 1973
Issue: Whether the amending power is unlimited.
Rule: Parliament cannot amend the Constitution so as to destroy its basic structure, of which federalism is a part.
Held: The basic structure doctrine established, limiting Art.368.
Distinctions
| Basis | Classical federation | Indian Union |
|---|---|---|
| Origin | Agreement among sovereign units | Not the result of an agreement; units have no right to secede |
| Territorial integrity of units | Boundaries cannot be altered without consent | Parliament may alter boundaries under Art.3 without consent |
| Citizenship | Often dual | Single |
| Judiciary | Often dual systems | Single integrated hierarchy |
| Residuary powers | With the units | With the Union (Art.248) |
| Second chamber | Equal representation of units | Broadly population based (Fourth Schedule) |
| Emergency | No power to convert into a unitary state | Arts.352, 356 and 360 permit exactly that |
| Basis | Cooperative federalism | Competitive federalism |
|---|---|---|
| Idea | Union and States as partners in shared tasks | States competing with one another for investment and performance |
| Constitutional basis | Arts.263, 279A, 280, 312 | None; a governance concept, not a legal one |
| Machinery | Inter-State Council, Goods and Services Tax Council, Finance Commission | Performance indices, investment policy, ease of doing business rankings |
| Risk | Dilution of State autonomy through central agenda setting | A race to the bottom in regulation, and widening inter-State inequality |
Flashcards
How does Art.1 describe India?
As a Union of States.
Why was "Union" preferred to "Federation"?
To convey that the federation is not the result of an agreement and that the units have no right to secede.
Where do residuary powers lie?
With Parliament, under Art.248 read with Entry 97 of the Union List.
Can Parliament alter a State's boundaries without its consent?
Yes. Art.3 requires only that the State's views be ascertained.
What ratification does the proviso to Art.368(2) require?
Ratification by the Legislatures of not less than one half of the States for amendments affecting the federal scheme.
What did *State of West Bengal v Union of India* (1963) hold about federalism?
That the Constitution is not federal in the traditional sense and the States have no independent sovereign existence.
What did *S R Bommai* (1994) hold about federalism?
That federalism is a basic feature and the States are supreme within their allotted sphere.
Which article provides for the Inter-State Council?
Art.263.
What is the voting structure in the Goods and Services Tax Council?
The Union's vote counts one third and the States' votes together two thirds, and a decision requires not less than three fourths of the weighted votes of those present and voting (Art.279A).
What does Art.262 permit Parliament to do?
To provide for the adjudication of inter-State water disputes, and to exclude the jurisdiction of the courts including the Supreme Court.
What does Art.261 provide?
Full faith and credit throughout India to the public acts, records and judicial proceedings of the Union and of every State.
Which three commissions have examined Centre-State relations?
The Rajamannar Committee (1969), the Sarkaria Commission (1983 to 1988) and the Punchhi Commission (2007 to 2010).
Exam Scenario
Problem: Parliament enacts a constitutional amendment which (i) transfers police and public order from the State List to the Union List, (ii) provides that the Governor of a State may dismiss a Council of Ministers at his discretion, and (iii) abolishes the requirement of ratification in the proviso to Art.368(2). The amendment is passed by the requisite special majority in each House but is not ratified by any State Legislature. In the same session, Parliament reorganises State A, dividing it into two, despite a unanimous resolution of its Assembly opposing the division. State A also sues the Union under Art.131 complaining that the amendment and the reorganisation destroy its autonomy. Advise.
Step 1: Dispose of the amendment on the ratification defect first
Take the ratification point first, since it disposes of much of the amendment. The proviso to Art.368(2) requires ratification by the Legislatures of not less than one half of the States for any amendment making a change in, among other things, the lists in the Seventh Schedule and in Art.368 itself.
Clause (i) alters the Seventh Schedule and clause (iii) alters Art.368, so both required ratification and neither obtained it. Both are void on this ground alone, and the reasoning is exactly that which struck down Para 7 of the Tenth Schedule in Kihoto Hollohan.
| Clause | What it changes | Ratification required | Position |
|---|---|---|---|
| (i) police and public order moved to the Union List | The lists in the Seventh Schedule | Yes, proviso to Art.368(2) | Void for want of ratification, and separately open to a basic structure challenge |
| (ii) Governor may dismiss the Ministry at his discretion | Neither the Schedule nor Art.368 | No | Survives the proviso, but open to a basic structure challenge |
| (iii) abolition of the ratification requirement | Art.368 itself | Yes, proviso to Art.368(2) | Void for want of ratification, and separately open to a basic structure challenge |
Step 2: Test all three clauses against the basic structure
Applying Kesavananda Bharati (1973) and S R Bommai (1994), federalism is a basic feature. Transferring police and public order, the core of a State's own governance, to the Union, and empowering a centrally appointed Governor to dismiss an elected Ministry at his discretion, would leave the States as administrative agencies of the Centre.
That destroys, rather than merely alters, the federal principle. It also offends responsible government, since a Ministry would answer to the Governor rather than to the Assembly.
Argue the attack in this order:
- Want of ratification against clauses (i) and (iii), which disposes of them without going further.
- Basic structure against all three clauses, on Kesavananda Bharati and S R Bommai.
- Nabam Rebia against clause (ii), which confined the Governor's discretion, so that clause is in any event inconsistent with it.
All three clauses are therefore vulnerable, clauses (i) and (iii) doubly so.
Step 3: Concede the reorganisation under Art.3
On the reorganisation the answer is different. Applying Art.3 and State of West Bengal v Union of India (1963), Parliament may form new States and alter boundaries without the consent of the State concerned.
The only requirement is that the Bill be referred to the State Legislature for expressing its views within the period specified, and Parliament is not bound by those views. The Assembly's unanimous opposition is therefore constitutionally irrelevant.
Step 4: Split the Art.131 suit into its two limbs
The challenge to the amendment and to the reorganisation raises legal rights of the State under the Constitution. It satisfies the requirement in State of West Bengal and State of Karnataka v Union of India (1977), and is maintainable.
A complaint framed merely as loss of autonomy or unfair treatment, without an identified legal right, would not be.
Art.3 needs a reference, not consent. The Assembly's opposition counts for nothing, but the reference must in fact have been made. That is the only condition Art.3 imposes.
Do not answer Art.3 with federal principle. This is the sharpest illustration of the unitary bias in the Constitution and cannot be met by an argument from federalism.
Art.131 turns on a legal right. Frame the suit on the ratification and basic structure defects. Pleaded as a grievance about lost autonomy or unfair treatment alone, it fails the State of West Bengal and State of Karnataka test.
Conclusion. Clauses (i) and (iii) fail for want of ratification, and all three clauses are open to challenge as destroying federalism and responsible government. The reorganisation is valid under Art.3 however unwelcome, and the Art.131 suit is maintainable on the amendment issues.
See Also
- Legislative Relations : the Seventh Schedule and the circumstances in which Parliament may enter the State List.
- Administrative Relations : Arts.256, 257 and 365, the principal instruments of central supervision.
- President's Rule and Financial Emergency : Art.356 and the limits laid down in S R Bommai.