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Nature of Indian Federalism: Quasi and Asymmetric Federalism

Introduction

Acquainting oneself with federalism, generally and nature of Indian Federalism, particularly would help in acknowledging some unique and not-so-commonly seen features about Indian polity and thought processes of the Constitution framers. Deviating from the norm of nations tagged as either type of federation i.e., coming together or holding together, Indian Federalism quasi in an asymmetrical pattern. The topic ‘Federalism in India’ itself is vast and covers a lot of aspects such as fiscal federalism, the evolution of federalism, contemporary debates on the Union government’s centralized approach towards arenas concerning sharing of power and exclusive jurisdictions, issues with Indian Federalism and many more. 

Focusing upon developing the ability to understand and elaborate on each topic, this article deals with the basic meaning of federalism and its types. It further addresses, the nature of Indian Federalism i.e., quasi with asymmetrical pattern illustrated along with important case laws where the Hon’ble Supreme court has made similar or exact observations.

What is Federalism?

The term ‘Federalism’ implies constitutional arrangement of division or sharing of powers among two or more levels of government such as government at the central level and its constituents i.e., governments at state and lower levels. Derived from the Latin word Foedus meaning treaty or agreement, federalism is thus, a political system arising out of arrangements among governments at other levels. It indicates that governments exercise their powers, duties, and obligations within their jurisdictions having a considerable amount of independence from each other. Federalism is different from the unitary government in which power is centralized to the Union government and sovereign powers are constitutionally split to allow governments to act independently of each other.

There are two types of federations:

  1. When adjacent provinces or units willingly come together to form a strong state through creating a federation, it’s called Coming together Federation. One such classic example of ‘a federation of states’ is the US. 
  2. When the culturally distinguished and geographically diverse states provide autonomy to their provincial units for smooth administrative functioning, safeguard and promote regional interests, it’s called Holding together Federation.

Quasi- federalism

Indian federal structure is quasi in nature, evident through Constitutional provisions and statements made by judges in landmark judgments. Division of power is intended to keep the Union government at a more authoritative position providing the ability to exercise power in a manner that dilutes federalism and dividing power, on the other hand, to demonstrate the Constitution being of federal nature. Indian Constitution’s system of polity has a unique disposition. The framers in order to gather the best features and weed out possible negative aspects ended up adopting a middle path. The division of power is more sort of blend of federal principles with support of unitary principles.

The Supreme Court has come up with interpreting the nature of Indian Federalism. In State of Rajasthan v. Union of India, former Chief Justice Beg titled the Constitution as ‘amphibian’ further, stating observations that the Union Government is amphibian as it can transform its role of being a unitary form of government or federal form to satisfy requirements posed by needs and circumstances of the situation. 

In S.R. Bommai v. Union of India, the Apex Court noted that the commonly invoked federalism is of the US, known as ‘federation of states’ where states come together and thus can’t be altered. On the other hand, the Indian parliament has the power to admit, create states, re-draw boundaries, as had happened recently. For instance, the creation of Telangana state from Andhra Pradesh and conversion of the state of Jammu & Kashmir into two Union Territories. This power is indicated in Article 2 of the Constitution The case held that the President doesn’t have absolute power while dismissing a state government.

The case State of West Bengal v. Union of India dealt with the issue pertaining to the exercise of sovereign powers by states. The Apex Court held that the Indian Constitution doesn’t imply absolute federalism. The bench took the help of characteristics of the Constitution to illuminate not so federal nature of the Indian Constitution. The Court pointed out that the Constitution is supreme that governs states and doesn’t contain any provision supporting a separate constitution for each state. Also, states don’t possess any power to bring an amendment to Constitution and this power is reserved only with the Union. The Constitution also supports Judiciary to nullify any action violative of Constitutional provisions and distributes power so as to facilitate national policies. The bench further made observation that the concept of single citizenship is contrary to the pure form of federalism which is followed in the US and concluded that the structure of the Indian Constitution is centralized.

Although states are sovereign in their determined jurisdiction their executive powers are co-extensive with the legislative powers of the Union, States’ powers don’t co-ordinate with that of the Union thus, implying Constitution to be quasi-federal. In the Constitution, it’s written that India, that is Bharat is ‘Union of States’. Therefore, Constitution framers neither directly adopted federalism nor mentioned it, and thus, India is what it’s often known as a quasi-federal state.

Asymmetric Federalism

Asymmetry in Federalism is different from that of political structure which usually exists in every federation. Ronaldo Watts has drawn the fruitful distinction between asymmetry in political structure and that on the basis of the geographical and demographic size of its units and constituents. He has defined the latter as “differences in the status of legislative or executive powers assigned by the constitution to different regional units”. India is an example of both kinds of asymmetry. One such instance of political asymmetry is the allotment of seats in the upper house of the Parliament i.e., Rajya Sabha not on the basis of formal equality but that of population.

Indian Federalism consists of ‘postmodern potential’ having de facto and de jure asymmetries in its creation. Besides main fronts possessing administrative powers are Centre and states, there are other forms as well such as Union territories to address specific local, political, and geographical contexts. At present, India has states with their own specified jurisdiction, union territories with and without legislature. While it’s exhibit that the reason behind deciding whether a union territory would have a legislative assembly or not depends upon majorly, population and minor influence by factors such as disturbed law and order situation. 

Puducherry and National Capital Territory of Delhi had been Union Territories with legislative assembly, until the state of Jammu and Kashmir was bifurcated into two union territories, out of which union territory of Jammu and Kashmir has legislative assembly. Concern to the handling of law & order situation in Puducherry and Delhi, inn former, Police works under the Department of Home Affairs, Government of Puducherry whereas, Delhi Police is administered by Central Ministry of Home Affairs. The J&K Reorganization Act makes it clear that the ‘Delhi Model’ will be followed for policing and public order, although administration of issues such as land and powers of the court isn’t yet clarified.

Puducherry has a distinct feature of it despite being a single administrative unit, it’s a ‘non-contiguous’ union territory that means, it’s not limited to one extent. It has enclaves within other states i.e., Yanam (within Andhra Pradesh), Mahe (within Kerala), and Karaikal (within Tamil Nadu). What stands at contemporary times is all three Union Territories with legislative assembly following a completely different model revolving around the same issue. This absence of symmetry in functioning, law-making as to on specific subjects being mentioned in Union, State and Concurrent lists, unmatching powers of the Central government and government of states, differences in administration of Union territories falling into one category marks the asymmetrical pattern of Indian Federalism.

Conclusion

Indian Constitution thus instead of following uniform federal principle is a federation with postmodern potential. Indian Federalism adopted a way that’s deviant from the majorly followed norm of restricting one to already adopted or widely recognized aspects or arenas. Pioneers of Indian independence have mostly resorted to choosing a blended or middle way so as to get the best out of available information of practiced theories. Habituating to a middle path in the context of federalism has its own pros and cons. For instance, Central’s over-centralized approach in handling of COVID-19 emergency response and then, vaccination drives which however now is following guidelines framed on suggestions provided by the Apex Court. This is the result of the unique nature of Indian Federalism that whenever the government has violated or tried to violate federal principles, there are discussions, debates, and sometimes, suits filed in courts but it goes on. This is because of Constitution’s tacit support to more powerful Central government and conventions are just habitual practices followed from a considerable period of time lacking constitutional or statutory support and thus, not binding to be followed.

References

This article is written by Ruchita Yadav, from Dr. Ram Manohar Lohiya National Law University, Lucknow.

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