Federalism and Friction in Centre-State Relation: A Comparative Analysis

1. INTRODUCTION
The term federal has been derived from the Latin term foedus which means treaty or
agreement. This treaty or agreements follows the merger of a number of separate states into a
single sovereign state. The aim of agreement is to arrive at a compromise, between the
interests of the central authority, which comes into being, as a result of merger of the states,
on the one hand, and the various states, which are transformed into constituents units of that
political edifice on the other hand. A compromise is arrived at between the competing
principles of the national unity and autonomy of the states.1
In other word, federalism constitutes a complex governmental mechanism for the governance
of a country. It seeks to draw a balance between the forces working in a favour of
concentration of power in the centre and those urging a dispersal of it are a number of units.
A federal Constitution envisages a demarcation of governmental functions and powers
between the Centre and the regions by the sanction of the Constitution, which is a written
document. From this follows two necessary consequences:i.

That the invasion by one level of governmental on the area assigned to the

ii.

other government is a breach of the Constitution.

That any breach of the Constitution is a justifiable issue to be determined by
the Courts as each level of government functions within the area assigned to
it by the Constitution.

K.C Wheare defines federal government as an association of states, which has been formed
for certain common purposes, but in which the member states retain a large measure of their
original independence. A federal governmental exists when the powers of the government for
a community are divided substantially accordingly to a principles that there is a single
independent authority for the whole area in respect of some matters and there are independent
regional authorities for other matters, each set of authorities being co-ordinate to and
subordinate to the other within its own sphere. 2 The framer of the Indian Constitution
attempted to avoid the difficulties faced by the federal Constitution of U.S.A, Canada and
Australia and incorporate certain unique features the working of the Indian Constitution.
1 R.K Chaubey, Federalism Autonomy & Centre-State Relations Satyam Books, New Delhi, 2007
at 13 & 14.
2 P.K Tripathi, Federalism: The Reality and the Myth, 3J. Bar Council of India, 251 (1974).
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Thus, our Constitution contains certain novel provisions suited to the Indian conditions. The
doubt which emerges about the federal nature of the Indian Constitution is the powers of
intervention in the affairs of the states given to the Central Government by the Constitution.
According to Wheare, in practice the Constitution of India is quasi- federal in nature and not
strictly federal. Sir Ivor Jennings was of the view that India has a federation with a strong
centralizing policy. In other of D.D Basu, the Constitution of India is neither purely federal
nor unitary, but is a combination of both. It is a union or a composite of novel type.3
The Indian Constitution is not only regarded as Federal or Unitary in the strict sense of the
terms. It is often defined to be quasi-federal in nature also. Throughout the Constitution,
emphasis is laid on the fact that India is a single united nation. India is described as a Union
of States and is constituted into a sovereign, secular, socialist, democratic republic.
As opposed to this is the opinion of some scholars who regard the Indian Constitution to be
unitary in nature. It has been argued that the Indian Constitution does not satisfy certain
essential tests of federalism, namely- the right of the units to make their own Constitution and
provision of double citizenship. Further, in the three-fold distribution of the power, the most
important subjects have been included in the Union list, which is the longest of the three lists
containing 97 items. Even regarding the Concurrent lists, parliament enjoys an overriding
authority over the State Legislatures. Article 253 empowers the Union Parliament to make
laws implementing any treaty, agreement or convention with another country or any decision
made at any international conference, association or other body. Some of the other
Constitutional provisions, which are often quoted in favour of the Unitary status of the Indian
Constitution are- emergency powers of the president to declare national emergency or
declaring emergency in a state in the event of failure Constitutional machinery, the
appointment of governors, unification of judiciary and the dependence of the states on the
Centre for finance. The power of the Union to alter the names and territory of the states, to
carry out Constitutional amendments and to affect co-ordination among the states and settle
their mutual disputes is also regarded as an indicator of the unitary character of the Indian
Constitution.
It should be remembered that the aforementioned provision in the Constitution are aimed at
establishing a working balance between the requirements of national unity and autonomy of
3 M.P Jain, Indian Constitutional Law Lexis Nexis, Haryana, 2013 at p. 790.
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Federalism and Friction in Centre-State Relation: A Comparative Analysis

the States. Dr. Ambedkar, one of the architects of the Indian Constitution, rightly prophesied:
Our Constitution would be both unitary as well as federal according to the requirements of
time and circumstances. Mainly friction between centre and state were examined in present
seminar and with evolving friction the effect on federal structure of India.4

4 Dr.Sarita, Federalism in IndiaRegal Publications, New Delhi, 2009 at p. 53.

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2. TEST FOR INDIAN FEDERAL STRUCTURE

Generally, democratic constitutions are classified into two categories- Unitary and Federal. In
a unitary constitution, all the powers are concentrated in a central authority. The states or the
constituents of the country are subordinate to such central authority.
According to Prof. Wheare, the constitution of USA, Australia, and Switzerland are prime
examples of a federal constitution. Dr. Ambedkar has categorically said in Constituent
Assembly discussions that notwithstanding certain provisions that centralize the powers,
Indian Constitution is essentially federal. Prof. Wheare and some other academicians,
however, are hesitant in calling it a federal constitution and prefer to term it as quasifedera or federal with strong centralizing tendency. Though, it should be noted that even
Prof. Wheare accepts the existence of certain provision in the American constitution, such as
dependence of Senate on States, which are contrary to federal character. However, he says
that while the principles of federalism should be rigid, the terminology of federal
constitution should be wide. A constitution should be called federal if it displays federal
character predominantly.5
The followings are the defining features of federalism.

Distribution of Powers between Centre and States.

Written Constitution.
Rigidity of the Constitution.
Independent Judiciary.

All the above characteristics are present in the Indian Constitution. However, there are certain
provisions that affect its federal character.
Written Constitution:- Indias Constitution is a lengthy, elaborate and detailed document.
Originally it consisted of 395 articles arranged under 22 parts and 8 schedules. Today after
many amendments it has 441 articles and 12 schedules. It is probably the longest of the
organic laws now extant in the world.

5 M.P Jain, Indian Constituional Law, Lexis Nexis, Haryana, 2013 at p. 791.
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The form of administration has a close relation with form of constitution, and the former must
be appropriate to, and in the same sense as, the latter. It is quite possible to prevent the
constitutional mechanism without changing its form by merely changing its form by merely
changing the form of administration and making it inconsistent with and opposed to the spirit
of constitution. Since India was emerging as an independent emerging country after a long
period of British Rule, the country lacked democratic values. The constitution makers
therefore thought it prudent not to take risk and incorporate in itself the form of
administration as well, instead of leaving it to legislature, so that the whole mechanism may
become viable.
It would, however, be wrong to suppose that Indian Constitution with all its prolixity finally
settles all problems of government. It leaves a number of matters to be taken care of by
ordinary legislation. It also provides scope though not so much as in Britain, for the growth
and development of convention. Thus the relation between the president and his council of
the minister, the concept of ministerial responsibility for the act of officials relationship
between the Prime Minister and his council of ministers, the appointment of a state governor
dissolution of L.S or R.S by the President and the governor are some of matter which are left
to be evolved by conventions.
It is not correct to assume that the convention of the British Constitution would operate suo
motu in India whenever relevant and applicable. In course of time some of these conventions
have been questioned and new conventions are in the process of emergence. This is mainly
because most of their conventions have been evolved in the context of a two-party system,
while in India a multiparty system is evolving.
Rigidity of the Constitution: - The procedure of amending the Constitution regarding the
federal principle is rigid. Under Art.368 require not only the absolute majority of the two
Houses of Parliament and two-thirds majority of the members present and voting but also
endorsement of endorsement of the legislature of at least half the states.
So the essential criteria of Prof. K.C Wheare are satisfied only to this extent. The further
elements evolved with passage of revolution in political setup.

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Independent Judiciary: - we, in India aim for a democratic society, wherein, government
even up to the grass roots is contemplated, then for the management of such a government,
there judiciary has also to be organized on similar lines.
The organization of courts, i.e. the judiciary is the basic criterion for determining the federal
character of the constitution. This being so, since, it is starting with the structure only that we
can proceed to look further into its working and mechanisms, which form the functional
aspect of the judicial set-up. Both the structure and the functional parts, and their
coordination with each other decide as to whether what type of judiciary it is, i.e. federal, or
unified or any else.
The Constitution of India provides for two sets of court, one at the centre and other in the
states. Chapter IV of Part V and it speak of union judiciary and High Courts in states
respectively. There are separate provisions for both which prescribe for their working which
means that both derive their powers from the Constitution.
It has always been said about Indian Judiciary that it is a unified one with the Supreme Court
at its apex and he High Courts below it. Seeing the various provisions of the Constitution, it
can be said that Supreme Court enjoys the top most position in the judicial hierarchy of the
country. It is the supreme interpreter of the Constitution and the guardian of peoples
fundamental rights. It is the ultimate appeal in all criminal and civil matters and the final
interpreter of the law of the land, and thus helps in maintain a uniformity of law throughout
the country. In India there is no division of powers between the general and provincial courts.
There is no itemization done with regards to their area of working and there seems to be no
exclusiveness in their working too, as there is no conclusive bar on any suit from reaching the
Supreme Court.
Coming then to the jurisdiction of the court, where Supreme Court has the exclusive original
jurisdiction as laid in Art. 131. Regarding appellate jurisdiction, the Supreme Court has
appellate jurisdiction as provided by Art.132 to 134A & Art. 136.

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A perusal of Articles 32 and 226 also brings out the facts that the High Court is not in any
manner subordinate to the Supreme Court and in fact is vested with more powers than the
Supreme Court by the Constitution itself. Art. 226 clearly provide that notwithstanding
anything in Art. 32 every High Court shall have the power to issue the writs for enforcement
of the fundamental rights and for any other purposes, whereas the provision of Article 138
and Article. 139 require a law made by the Parliament to enlarge or confer the jurisdiction
under the Supreme Court of India.
This practices does not mean that there is no federalism principles in our Constitution, or that
it is wholly based on unitary principles, but that it is an attempt for the unification of the
entire system to prevent it from disintegrating and also to prevent the coming into force of
multiple and conflicting decisions on the same subject matter. Had this been not the practice,
it would have resulted in contradiction and confusion, and would lead to the same law
interpreted and applied in one State and another manner in another State.
Distribution of powers: - An essentials feature of every federal Constitution is the
distribution of powers between the Central Government and the governments of the several
units forming the federation. Federation means the distribution of the power of the State
among a number of coordinate bodies, each originating in and controlled by the Constitution.
The essential characteristics of a federal Constitution, which we have enumerated above, are
present in the Indian Constitution. The Constitution establishes dual polity. The dual polity
consists of the Union at the Centre and States in different parts of the country, each endowed
with powers to be exercised in the field assigned to them respectively by the Constitution.

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3. STRAINS ON FEDERALISM IN INDIA

Strains reflect constitutional biasness toward states and giving more power to the central. Dr.
Ambedkar while moving the different parts of the constitution for the adoption in the
Constituent Assembly had repeatedly emphasized upon the centralized character of Indian
Federalism and went to remarking that the name Indian Union had been deliberately used in
preferences to the Indian Federation which used in the Government of India Act, 1935 6,
Jawaharlal Nehru, the Chairman of the union powers committee had taken the first step in
this direction when he said that even though going back to the Unitary state would be a
retrograde step, the centre should be armed with adequate powers to be able to maintain
internal peace, solve economic problems and project a unified image of the country in foreign
affairs7. If the Indian federation is centralized, it is not because of recent developments in
science and technology, modalities of warfare, emergence of international institution or
necessity for central planning but the architects of the constitution of India have deliberately
erected a centralised federal polity and named it as Indian Union. The different organs of the
State, in their composition and functions, are intended to sub serve this end, and division of
powers between the centre and the states puts a premium on the leadership, strength and
solidarity of the government.
3.1. Legislative strains: - Indian Constitution the division of legislative powers is under Part
XI (Article 245- 255) and the seventh schedule spell out the equation between the centre and
states in terms of the distribution of powers, enumerated in the Seventh Schedule of the
constitution in the Union List, State List and the Concurrent List.
a) Union List: - List I or Union List8 Includes 99 entries over which the Union has
exclusive power of legislation. These include defence, foreign affairs, banking,
currency and coinage, Union duties and taxes.

6 C.A.D., Vol. VII, No.1, 1948-49, p.353.

7 Ibid.
8 Article 246 (i) of the Indian Constitution.
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b) State List: - List II or the State List 9 comprises 61 entries over which the State
legislature has exclusive power of legislation, such as public order and police, local
government, public health and sanitation, agriculture, fisheries, state taxes and duties.
c) Concurrent List: - List III gives concurrent legislative10 powers to the Union and the
State legislature over 52 items, such as criminal law and procedure, civil procedure,
marriage, contracts, forests, trusts, welfare of labour, insurance, economic and social
planning and education.

A close look at the lists indicates that all important and vital matters have been put either in
the Union List or Concurrent List. In case of overlapping of a matter as between the three
lists, predominance has been given to the union Legislature, as provided under the
Government of India Act, 1935. On other sphere of repugnancy between a Union and a State
law relating to the same subject, the former prevails. If, however, the state law reserved for
the assent of the President and has received such assent, the state law may prevail
notwithstanding such repugnancy, but it would still be competent for parliament to override
such state law by subsequent legislation (Art. 252 (2)). The further topic wise illustrations
were examined below that how the legislative strains itself forming root biasness between
Centre and States. They are as follows: 1

In National Interest (under Article 249)

Article 249 of the Constitution, which empowers the Union Parliament to legislate on
the subject matter of State List whenever, the Council of the States declares so by a
resolution supported by not less than two thirds of the member present and voting,
such legislation being necessary and expedient in national interest. Such a resolution
may remain in force for the period mentioned therein, but it cannot exceed one-year
period.
Article 249 bitterly criticised by the Constituent Assembly.11 The critics called the
provision mischievous and argued that when there was Article 252 there was
9 Article 246 (iii) of the Indian Constitution.
10 Article 246 (ii) of the Indian Constitution.
11 VIII, Constituent Assembley Debates, 801-802.
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necessity of having Article 249, which would be a mockery of provincial autonomy.

But the critical arguments did not find favour in the Constituent Assembly and Article
was not dropped.
Article 249 of the Indian Constitution is a very useful provision, which mitigates the
traditional rigidity of federalism. This article can be used when national interest
demands immediate and urgent legislation. The Essentials Supplies Amendment Act
1950, and the Supply Prices Goods Act, 1950 was outcome when goods prices were
became high and no action could be taken under entry 33 List II.
Hence, it was empowering Union Government to make law in respect of the subject
matter present in the State Subjects.
2

Under Proclamation of Emergency (under Article 250)

Article 250, Clause 1, of the Constitution empowers the Parliament to make laws for
whole country or any part of the territory of India with respect to any of matter of
State subject when a Proclamation of Emergency is in operation. Thus the Union
Parliament has wide discretionary legislative powers as those Unitary Sates to cope
with the situation12. In this respect, the Indian Constitution follows the schemes of the
Act 1935. The Proclamation of Emergency can last long for six month.
It is true that Indian Constitution, by virtue of Art. 250, provides wide discretionary
powers to Parliament during Emergency. But the reason for such powers can be
understood by the considering the fact the multiple powerful disruptive forces have in
them the great potentiality of doing immense mischief to Indias national existence
and considering also the fact that the effective prosecution of a modern war might
require total mobilization of the countrys resources which the Central government
can secure only under Article 250 of the Constitution, this broad power has to be
tolerated as a dire necessity.
3

Legislative by Agreement with States

12 D.D Basu, Introduction to the Constitution of India, 9(1995).

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Article 252 of the constitution is another unique provision of Indian scheme of

distribution of legislative powers which makes the Indian federal system flexible. As
M.Venkatramaiya observes:-13
Federalism...may be either a competitive or co operative character and the
federalism as contemplated by the new Indian constitution is essentially co
operative.
Article 252(1) of the constitution lay down that if it appear to the legislatures of two
or more state to be desirable that any of the matters with the respect to which the
parliament has no power to make law for the state except as provided in article
249and 250 of the constitution and should be regulated in such state by the parliament
by law and if the resolution to that effect passed by all the houses of the legislature of
those states, it shall be lawful for the parliament to pass an act for regulating the
matter shall apply to such states.
In others word Parliament also become entitled to legislate for two states by their
consent. If two or more state request the central government to legislate on the
particular subject mentioned in the state list, in so far as their states are concerned, the
central Parliament shall legislate on those subjects as well. If any such laws is to be
amended or repealed, it can be done only by Parliament alone but the initiative for it
rests with the States concerned.
4

Legislation for Giving Effect to International Agreements

Under Article 253 Parliament ahs power to make any law for the whole or any part of
India for Implementing any treaty, agreement or convention with any other country or
countries or any decision made at any international conference, association or other
body. This provision entitles parliament to legislate even in the respect of those
subjects that were included in the state list.
In Ram Jawavs v. State of Punjab 14, the Supreme Court went further in asserting the
necessity of enacting of a law even if there is no cessation matter involved. The case
13 M. Venkatrangaiya, The Centre and the Units in the New Constitution Indian Journal of
Political Science, 1 (1950).
14 (1955) 2 SCR. 225.
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followed the position of England in this regard and rules that private rights cannot be
affected by a treaty or executive action by way of its implementation unless there is an
Act of Parliament to that effect.
5

Under a Proclamation of Failure of Constitutional Machinery in the States

(Art. 356(1)(b))

The carrying of administration of a state in case of a failure of the constitutional

machinery is vested in hand of the President. Art. 355 it is responsibilities of the
Union to ensure functioning of the state and if the constitution machinery breaks
down in state than Union executives powers extended to state.
6

Residuary Powers of Parliament Under Article 248

The vesting of residual powers under the constitution follows the precedent of
Canada, for, it is given to the Union instead of the States. In this respect, the
constitution differs from the Government of India Act, 1935, for, under that Act, the
residual powers were vested neither in the federal nor in the State Legislature, but
were placed in the hands of Governor-General; the constitution vests the residuary
powers i.e., the powers to legislate with respect to any matter not enumerated in any
one of three Lists- in the Union Legislature and the final determination as to whether
a particular matter falls under the residuary powers or not is that of the courts.15

3.2. Administrative Strains: - Any federal scheme involves division of powers between the
Union and the States not only in the legislative field but also in executive and administrative
fields. Such distribution of administrative powers may have a strong bias as it exists in India.
We will look different administrative strains and examine. They are follows:1) Control over States & Obligation of States
While Article 256 imposes general obligations on States, Article 257 imposes a
general obligation not to do anything which would impede or cause prejudice to the

15 Subramanyam v. Muthuswami, AIR 1941 F.C 47.

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exercise of the executive power of the Union. It clear from bare reading of Article that
the Union can give direction to the States.

As to the manner in which the executive power of the State shall be exercised

so as not to impede or abridge the executive power of the Union;

As to construction and maintenance of means of communication declared to

be of national or importation; and

For the protection of Railways.

If in carrying out the directions of the State, certain additional expenditure has been
incurred by the State, it will be given by the Government of India or in case of default
of agreement, arbitrator may be appointed by the Chief Justice to decide on the point
of extra cost.
2) Executive extends their power during Emergency
Emergency provisions of the Constitution as provided in Part XVII- Articles 352-60
constitute the most explicit statement of the overwhelming power of the centre, not
only to transform the normal federal arrangements in three circumstances, i.e.,
National Emergency (Article 352), failure of constitutional machinery in States
(Article 356) and Financial Emergency (Article 360) into abnormal unitary
functioning, but also to suspend and abridge the authority of states and imposes
central rule for certain period of time (Article 356-365).

3) Inter-State Water Disputes

One of the most recent strains is inter-state water disputes and interference of union.
Article 262 dealing with the water of inter-state rivers and river valleys. Parliament
may by law provide for the adjudication of any dispute or complaint with respect to
the use, distribution or control of water of any inter-state river or river valley.
4) All-India Services
The presence of All-India Services (Article 312) like the Indian Administrative
Services, the Indian Police Service etc., further makes the authority of the Central
Government dominant over the states. The members of these All-India Services are
appointed by the President of India on the basis of a competitive examination held by
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U.P.S.C. the constitution make provision for creation of new All-India services by the
Parliament. The parliament can create new All-India Services if Rajya Sabha passes a
resolution by a majority of two-thirds of its members present and voting, that it is
necessary in the national interest to do so.

3.3 Financial Strains: - In a federation since there are two governments, finance touches the
content and working of a federal polity and prerequisite of a good govt. Hence it is necessary
that financial resources between the centre and the states are allocated in such a way that
there is exists equilibrium between the function and resources at various level. Two important
features of a federation are 1st a complete separation of Centre and State taxing power and 2 nd
transfer of fund from centre to state. Financial relation between the Centre and the State in
India constituent were the most difficult issue of federal balance. Any scheme of federal
finance has to ensure that distribution of functions is matched by the distribution of adequate
resources.

I.

Taxing

The constitution makes distinction between the legislative power to levy tax and
power to appropriate the proceeds of attack so levied. The legislative power to make
law for imposing the tax is divided between the union and the state by means of
specific entries in the union and the state list in schedule VII 16. While the State
legislature has power to levy and state duty in respect of agricultural land (entry 48 of
list II), the power to levy a state duty in respect of non agricultural land belong to
parliament (entry87 of list I). It is state legislature which is competent to levy tax on
agricultural income (entry 46 l II) while parliament has power to levy income tax on
all income other than agricultural income (entry 82 of List I)17.
II.

Grant in aid

16 Constitution, Schdule VII.

17 D.D Basu, Introduction to the Constitution Of India p.316.
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Even after the assignment to the states of a share of the central taxes, the resources of
all the states may not be adequate. The constitution, therefore, provides that grants-inaid shall be made in each year by the union to such states as parliament may
determine to be in need of assistance; particularly, for the promotion of welfare of
tribal areas, including special grants to Assam in this respect (Article 275)18.

4. JUDICIAL INTREPRETATION
The debate whether India has a Federal Constitution and Federal Government has been
grappling the Apex court in India because of the theoretical label given to the Constitution of
India, namely, federal, quasi-federal, unitary. The first significant case where this issue was
discussed at length by the apex Court was State of West Bengal V. Union of India 19. The main
issue involved in this case was the exercise of sovereign powers by the Indian states. The
legislative competence of the Parliament to enact a law for compulsory acquisition by the
Union of land and other properties vested in or owned by the state and the sovereign authority
of states as distinct entities was also examined. The apex court held that the Indian
Constitution did not propound a principle of absolute federalism. Though the authority was
decentralized this was mainly due to the arduous task of governing the large territory. The
court outlined the characteristics, which highlight the fact that the Indian Constitution is not
a "traditional federal Constitution". Firstly, there is no separate Constitution for each State as
is required in a federal state. The Constitution is the supreme document, which governs all the
states. Secondly, the Constitution is liable to be altered by the Union Parliament alone and the
units of the country i.e. the States have no power to alter it. Thirdly, the distribution of powers
is to facilitate local governance by the states and national policies to be decided by the
Centre. Lastly, as against a federal Constitution, which contains internal checks and balances,
the Indian Constitution renders supreme power upon the courts to invalidate any action
violative of the Constitution. The Supreme Court further held that both the legislative and
executive power of the States is subject to the respective supreme powers of the Union. Legal
sovereignty of the Indian nation is vested in the people of India. The political sovereignty is
18 Constitution, Article 275.
19 AIR 1963 SC 1241.

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distributed between the Union and the States with greater weight age in favour of the Union.
Another reason which militates against the theory of the supremacy of States is that there is
no dual citizenship in India. Thus, the learned judges concluded that the structure of the
Indian Union as provided by the Constitution one is centralized, with the States occupying a
secondary position vis--vis the Centre; hence the Centre possessed the requisite powers to
acquire properties belonging to States.
As against this opinion, was the judgment rendered by Justice Subba Rao, the great champion
of State rights. Justice Subba Rao was of the opinion that under the scheme of the Indian
Constitution, sovereign powers are distributed between the Union and the States within their
respective spheres. As the legislative field of the union is much wider than that of the State
legislative assemblies, the laws passed by the Parliament prevail over the State laws in case
of any conflict. In a few cases of legislation where inter-State disputes are involved, sanction
of the President is made mandatory for the validity of those laws. Further, every State has its
judiciary with the State High Court at the apex. This, in the opinion of the learned judge does
not affect the federal principle. He gives the parallel of Australia, where appeals against
certain decisions of the High Courts of the Commonwealth of Australia lie with the Privy
Council. Thus the Indian federation cannot be negated on this account. In financial matters
the Union has more resources at its disposal as compared to the states. Thus, the Union being
in charge of the purse strings, can always, persuade the States to abide by its advice. The
powers vested in the union in case of national emergencies, internal disturbance or external
aggression, financial crisis, and failure of the Constitutional machinery of the State are all
extraordinary powers in the nature of safety valves to protect the countrys future. The power
granted to the Union to alter the boundaries of the States is also an extraordinary power to
meet future contingencies. In their respective spheres, both executive and legislative, the
States are supreme. The minority view expressed by Justice Subba Rao has consistency with
the federal scheme under the Indian Constitution. The Indian Constitution accepts the federal
concept and distributes the sovereign powers between the coordinate Constitutional entities,
namely, the Union and the States.
The next landmark case where the nature of the Indian Constitution was discussed at length
was State of Rajasthan V. Union of India20. The learned judges embarked upon a discussion of
the abstract principles of federalism in the face of the express provisions of the Constitution.
20 AIR 1977 SC 1361,1395 : (1977) 3 SCC 592.
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It was stated that even if it is possible to see a federal structure behind the establishment of
separate executive, legislative and judicial organs in the States, it is apparent from the
provision illustrated in Article 356 that the Union Government is entitled to enforce its own
views regarding the administration and granting of power in the States. The extent of
federalism of the Indian Union is largely watered down by the needs of progress,
development and making the nation integrated, politically and economically co-ordinated,
and socially and spiritually uplifted. The Court then proceeded to list out some of the
Constitutional provisions which establish the supremacy of the Parliament over the State
legislatures. In conclusion the apex Court held that it was the prerogative of the Union
Parliament to issue directives if they were for the benefit of the people of the State and were
aimed at achieving the objectives set out in the Preamble.
The issue of federalism was carried forward in S.R.Bommai V. Union of India21. Four
opinions were rendered, expressing varying views. Justice Ahmadi opined that in order to
understand the true nature of the Indian Constitution, it is essential to comprehend the
concept of federalism. The essence of the federation is the existence of the Union and the
States and the distribution of powers between them. The significant absence of expressions
like federal or federation in the Constitution, the powers of the Parliament under Articles 2
and 3, the extraordinary powers conferred to meet emergency situations, residuary powers,
powers to issue directions to the States, concept of single citizenship and the system of
integrated judiciary create doubts about the federal nature of the Indian Constitution. Thus, it
would be more appropriate to describe the Constitution of India as quasi- federal or unitary
rather than a federal Constitution in the true nature of the term. As opposed to this, Justice
Sawant and Justice Kuldip Singh regarded democracy and federalism as essential features of
the Indian Constitution. The overriding powers of the Centre in the event of emergency do
not destroy the federal character of the Indian Constitution. The learned judges elaborated
upon the scope and justified use of the power conferred on the president by Article 356 which
will not restrict the scope of the independent powers of the respective States for "......every
State is constituent political unit and has to have an exclusive Executive and Legislature
elected and constituted by the same process as the Union Government."
In the opinion of Justice Ramaswamy, the units of the federation had no roots in the past and
hence the Constitution does not provide mechanisms to uphold the territorial integrity of the
21 AIR 1990 Kant 5 (FB).
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Federalism and Friction in Centre-State Relation: A Comparative Analysis

States above the powers of the Parliament. The end sought to be achieved by the Constitution
makers was to place the whole country under the control of a unified Central Government,
while the States were allowed to exercise their sovereign powers within their legislative,
executive and administrative powers. The essence of federalism lies in the distribution of
powers between the Centre and the State. Justice Ramawamy declared the Indian structure
as organic federalism, designed to suit the parliamentary form of Government and the diverse
conditions prevailing in India. Justice Jeevan Reddy and Justice Agarwal opined that the
expression federal or federal form of government has no fixed meaning. The Constitution is
also distinct in character, a federation with a bias in favour of the Centre.
5. RECOMMENDATION OF COMMISSION
5.1. Sarkaria Commission

It made the strong suggestion that Article 370 was not a transitory provision. This
appears to have been made specifically in response to "one all-India political party"

that demanded the deletion of Article 370 "in the interests of national integration."
It recommended that the residuary powers of legislation in regard to taxation matters
should remain exclusively in the competence of Parliament while the residuary field

other than that of taxation should be placed on the concurrent list.

That the enforcement of Union laws, particularly those relating to the concurrent

sphere, is secured through the machinery of the states.

To ensure uniformity on the basic issues of national policy, with respect to the subject
of a proposed legislation, consultations may be carried out with the state governments
individually and collectively at the forum of the proposed Inter-Governmental

Council. It was not recommended that the consultation be a constitutional obligation.

Ordinarily, the Union should occupy only that much field of a concurrent subject on
which uniformity of policy and action is essential in the larger interest of the nation,

leaving the rest and details for state action.

On administrative relations, Sarkaria made the following observation: "Federalism is
more a functional arrangement for cooperative action, than a static institutional
concept. Article 258 (power of the Union to confer powers etc on states in certain
cases) provides a tool by the liberal use of which cooperative federalism can be
substantially realised in the working of the system. A more generous use of this tool
should be made than has hitherto been done, for progressive decentralisation of
powers to the governments of the states."

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Federalism and Friction in Centre-State Relation: A Comparative Analysis

On Article 356, it was recommended that it be used "very sparingly, in extreme cases,
as a measure of last resort, when all other alternatives fail to prevent or rectify a
breakdown of constitutional machinery in the state.22

5.2. Punchhi Commission

The commission has proposed "localising emergency provisions" under Articles 355
and 356, contending that localised areas-either a district or parts of a district - be
brought under Governor's rule instead of the whole state. Such an emergency

provision should however not be of duration of more than three months.

The commission however supports their right to give sanction for the prosecution of

ministers against the advice of the state government.

The commission also criticizes arbitrary dismissal of governors, saying, "the practice

of treating governors as political football must stop".

Unlike the Sarkaria report, the Punchhi report is categorical that a governor be given
fixed five-year tenure. The Punchhi Commission report also recommends that a
constitutional amendment be brought about to limit the scope of discretionary powers
of the governor under Article 163 (2). Governors should not sit on decisions and must
decide matters within a four-month period.

The recent ruling of the Supreme Court has indicated that the sanctity of this
constitutional post should be preserved. In democracy, nobody can have absolute
power in the name of smooth administration and good governance. The administrative
apparatus has to be in the line of the constitution, which was prepared by the people
of the country and amended by the elected representative of the people of India. The
'doctrine of pleasure' has to be understood in this light23.

22 http://www.outlookindia.com/article/key-recommendations-of-the-sarkaria-commission/209702
visited on 9 Oct,2015.
23 http://www.preservearticles.com/2011092814259/what-were-the-main-recommendations-ofpunchhi-commission.html visited on 10 Oct 2015.
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Federalism and Friction in Centre-State Relation: A Comparative Analysis

6. CONCLUSION
We can henceforth see that the Indian judiciary had interpreted the Constitution to declare
India a unitary nation. This view of the apex court has lately undergone a change. The Court
has recognized the fact that the framers of the Indian Constitution intended to provide a
federal structure with a strong Centre, which would prevent the nation from disintegration.
In a subsequent case Chief Justice P.B.Gajendragadkar, emphasized upon the federal nature
of the Constitution and the Judiciary as the sole interpreter of the Constitution which could
not be changed by the process of ordinary legislation.In the basic structure thesis
case Keshavananda Bharti V. State of Kerala24 some of the judges in the full Constitutional
Bench expressed federalism as one of the basic features of the Indian Constitution. In another
case Justice Bhagwati, described Indian Constitution as a federal or quasi- federal
Constitution. In Sat Pal V. State of Punjab, the Supreme Court again held that ours is a
Constitution where there is a combination of federal structure with unitary features.......
In Pradeep Jain V. Union of India25, the Apex Court expressed a non-traditionalistic yet
pragmatic opinion while explaining the federal concept in the context of the unified legal
system in India- India is not a federal State in the traditional sense of that term. It is not a
compact of sovereign State which have come together to form a federation by ceding
undoubtedly federal features. In Ganga Ram Moolchandani v. State of Rajasthan26 the
Supreme Court reiterated: Indian Constitution is basically federal in form and is marked by
24 1973 SC 1461: (1973) 4 SCC 225.
25 AIR 1984 SC 1420: (1984) 3 SCC 654.
26AIR 2001 SC 2616 : AIR (2001)6 SCC 89.
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Federalism and Friction in Centre-State Relation: A Comparative Analysis

the traditional characteristics of a federal system, namely supremacy of the Constitution,

division of power between the Union and States and existence independent judiciary. The
apex Court in ITC LTD v Agricultural Produce Market Committee 27 expressed a similar
opinion.
The finer federal facet has often been misinterpreted by the central operators. So the battle for
federal affirmation and restoration of democratic decentralization has gained momentum over
the decade. Important Commissions like Rajamannar and Sarkaria Commission have stressed
on the federal soul of the Constitution. In the opinion of Amal Ray, the Indian Constitution is
a product of two conflicting cultures one representing the national leaders normative concern
for Indias unique personality and the other over-emphasizing the concern for national unity,
security, etc. And as a result, the founding fathers opted for a semi-hegemonic federal
structure where the balance is in favour of the Centre. This concept is aptly described in the
insight offered by Dr. Ambedkar: the Indian Constitution would work as a federal system in
'normal times' but in times of 'emergency' it could be worked as though it were a unitary
system. The critics of the Indian Federal system must not ignore the fact that not only the
Federal Government in India has been made deliberately strong; there is also a centralizing
tendency in the other federal states of the world such as Switzerland, Australia, Canada and
the United States.
In an attempt to assert their independence the States have, at various points of time tried to
flout the Centres orders. An example was the disobedience of Karnataka to confirm to the
Centres directives regarding release of water to Tamil Nadu. Such actions have generated
wide spread opposition from interested parties. A similar situation arose when Punjab
Termination of Agreements Bill, 2004, was flouted by the State of Punjab recently. The
unilateral termination of a tripartite agreement raised a controversy in which the authority of
the State to commit such an act is being questioned. Annulling the very basis on which the
Supreme Court had pressured the State to implement the river water-sharing agreement of
1981, the Bill has created an unprecedented Constitutional crisis.
In a response to the increasing number of water disputes the United Progressive Alliance
Government has proposed to set up two Commissions to look into the Centre- State relations,
including river water- sharing, and to examine administrative reforms.
27 AIR 2002 SC 852: AIR (2002) 1 SCALE 327.
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Federalism and Friction in Centre-State Relation: A Comparative Analysis

In the light of the past experiences of misuse of power certain amendments should be effected
which will strengthen the federal nature of our Constitution.

Firstly, there should be devolution of more financial resources and powers on the
States so that they do not have to depend on the Centre for financial assistance.

Secondly number of statutory grants to which the States are entitled should increase.

Thirdly, the States should also be given greater autonomy to undertake developmental
programmes.

Lastly, there should be some inbuilt safeguards against the blatant misuse of Article
356 by successive central Governments.

It is time to undertake a study of Indian Federalism with a view to evaluate the trends,
frictions and difficulties which have developed in the area of inter-governmental relations and
to seek to evolve ways and means to meet the challenging task of making the Indian
federation a more robust, strong and workable system so that the country may meet the tasks
of self-improvement and development.

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Federalism and Friction in Centre-State Relation: A Comparative Analysis

BIBILIOGRAPHY
Books
1. Jain, M. P., Indian Constitutional Law, (Nagpur: Wadhwa & Co., 2002).
2. Seervai, H. M., Constitutional Law of India, Vol. 1. 286, (New Delhi: Universal Book
Traders, 2002).
3. Shukla, V. N., Constitution of India, (Lucknow: Eastern Book Co., 2001).
4. Basu, D. D., Commentary on the Constitution of India, Vol. K, (Calcutta: Kamal Law
House, 1991).
5. Pandey, J. N., Constitutional Law of India, (Allahabad: Central Law Agency, 2003).
6. Chaubey, R.K., Federalism Autonomy and Centre-State Relations, ( New Delhi:
Saurabh Printers Pvt. Ltd., 2007).
7. Sarita, Federalism in India, ( New Delhi: Regal Publication, 2009).
Articles
1. Palshikar, V. G., J., Federal Structure of the Constitution of India and Indian
Judiciary, AIR 1997 Jl. 113.
Websites

http://www.gangothri.org/

http://www.outlookindia.com/article/key-recommendations-of-the-sarkariacommission/209702

http://www.preservearticles.com/2011092814259/what-were-the-mainrecommendations-of-punchhi-commission.html

Rajiv Gandhi National University of Law, PunjabPage 23