Indian Parliament and Fedaralism

Supreme Court of India in Kuldip Nayar vs Union Of India & Ors decided on 22 August, 2006 held :


The composition of Parliament India’s Parliament is bicameral. The two Houses along with the President constitute Parliament [Article 79]. The Houses differ from each other in many respects. They are constituted on different principles, and, from a functional point of view, they do not enjoy a co-equal status. Lok Sabha is a democratic chamber elected directly by the people on the basis of adult suffrage. It reflects popular will. It has the last word in matters of taxation and expenditure. The Council of Ministers is responsible to the Lok Sabha. Rajya Sabha, on the other hand, is constituted by indirect elections. The Council of Ministers is not responsible to the Rajya Sabha. Therefore, the role of Rajya Sabha is somewhat secondary to that of Lok Sabha, barring a few powers in the arena of Centre-State relationship. Rajya Sabha is a forum to which experienced public figures get access without going through the din and bustle of a general election which is inevitable in the case of Lok Sabha. It acts as a revising chamber over the Lok Sabha.

The existence of two debating chambers means that all proposals and programmes of the Government are discussed twice. As a revising chamber, the Rajya Sabha helps in improving Bills passed by the Lok Sabha. Although the Rajya Sabha is designed to serve as a Chamber where the States and the Union of India are represented, in practice, the Rajya Sabha does not act as a champion of local interests. Even though elected by the State Legislatures, the members of the Rajya Sabha vote not at the dictate of the State concerned, but according to their own views and party affiliation. In fact, at one point of time in 1973, a private member’s resolution was to the effect that the Rajya Sabha be abolished. Composition of Rajya Sabha The maximum strength of Rajya Sabha is fixed at 250 members, 238 of whom are elected representatives of the States and the Union Territories and 12 are nominated by the President. The seats in the Upper House are allotted among the various States and Union Territories on the basis of population, the formula being one seat for each million of population for the first five million and thereafter one seat for every two million population. A slight advantage is, therefore, given to States with small population over the States with bigger population. This is called “weighted proportional representation”. The system of proportional representation helps in giving due representation to minority groups. The representatives of a State in Rajya Sabha are elected by the elected members of the State Legislative Assembly in accordance with the system of proportional representation by means of a single transferable vote [Article 80(1)(b) and Article 80(4)]. Rajya Sabha is a continuing body. It has nominated members. They are nominated by the President on the advice of Council of Ministers. There is no difference in status between elected and nominated members of Rajya Sabha except that the elected members can participate in the election of the President whereas the nominated members cannot do so. One-third of its members retire every two years and their seats are filled by fresh elections and nominations.

Rajya Sabha’s power under Article 249 of the Constitution The Indian union has been described as the ‘holding together’ of different areas by the constitution framers, unlike the ‘coming together’ of constituent units as in the case of the U.S.A. and the confederation of Canada. Hence, the Rajya Sabha was vested with a contingency based power over state legislatures under Article 249, which contributes to the ‘Quasi-federal’ nature to the government of the Indian union. Under Article 249(1), if the Rajya Sabha declares by a resolution, supported by not less than two-thirds of it’s members present and voting, that it is necessary or expedient in national interest that Parliament should make laws with respect to any of the matters enumerated in the State list [List II of Seventh Schedule read with Article 246], specified in the resolution, it shall be lawful for parliament to make laws for the whole or any part of the territory of India with respect to that matter while the resolution remains in force. Article 249 clause (2) and (3) specify the limitations on the enforcement of this provision. Article 251 when read with Article 249 provides that in case of inconsistency between a law made by parliament under Article 249 and a law made by a State legislature, the Union law will prevail to the extent of such inconsistency or ‘repugnancy’. In effect this provision permits the Rajya Sabha to encroach upon the specified legislative competence of a state legislature by declaring a matter to be of national importance. Though it may have been incorporated as a safeguard in the original constitutional scheme, this power allows the Union government to interfere with the functioning of a State government, which is most often prompted by the existence of opposing party-affiliations at the Central and state level. This bias towards ‘Unitary power’ under normal circumstances is not seen either in U.S.A. or Canada.

Federalism A lot of energy has been devoted on behalf of the petitioners to build up a case that the Constitution of India is federal. The nature of Federalism in Indian Constitution is no longer res integra.

There can be no quarrel with the proposition that Indian model is broadly based on federal form of governance. Answering the criticism of the tilt towards the Centre, Shri T.T. Krishnamachari, during debates in the Constituent Assembly on the Draft Constitution, had stated as follows: “Sir, I would like to go into a few fundamental objections because as I said it would not be right for us to leave these criticism uncontroverted. Let me take up a matter which is perhaps partly theoretical but one which has a validity so far as the average man in this country is concerned. Are we framing a unitary Constitution? Is this Constitution centralizing power in Delhi? Is there any way provided by means of which the position of people in various areas could be safeguarded, their voices heard in regard to matters of their local administration? I think it is a very big charge to make that this Constitution is not a federal Constitution, and that it is a unitary one. We should not forget that this question that the Indian Constitution should be a federal one has been settled by our Leader who is no more with us, in the Round Table Conference in London eighteen years back.”

“I would ask my honourable friend to apply a very simple test so far as this Constitution is concerned to find out whether it is federal or not. The simple question I have got from the German school of political philosophy is that the first criterion is that the State must exercise compulsive power in the enforcement of a given political order, the second is that these powers must be regularly exercised over all the inhabitants of a given territory; and the third is the most important and that is that the activity of the State must not be completely circumscribed by orders handed down for execution by the superior unit. The important words are ‘must not be completely circumscribed’, which envisages some powers of the State are bound to be circumscribed by the exercise of federal authority. Having all these factors in view, I will urge that our Constitution is a federal Constitution. I urge that our Constitution is one in which we have given power to the Units which are both substantial and significant in the legislative sphere and in the executive sphere.”

(emphasis supplied) In this context, Dr. B.R. Ambedkar, speaking in the Constituent Assembly had explained the position in the following words:

“There is only one point of Constitutional import to which I propose to make a reference. A serious complaint is made on the ground that there is too much of centralization and that the States have been reduced to Municipalities. It is clear that this view is not only an exaggeration, but is also founded on a misunderstanding of what exactly the Constitution contrives to do. As to the relation between the Centre and the States, it is necessary to bear in mind the fundamental principle on which it rests. The basic principle of Federalism is that the legislative and executive authority is partitioned between the Centre and the States not by any law to be made by the Centre but the Constitution itself. This is what the Constitution does. The States, under our Constitution, are in no way dependent upon the Centre for their legislative or executive authority. The Centre and the States are co-equal in this matter. It is difficult to see how such a Constitution can be called centralism. It may be that the Constitution assigns to the Centre too large a field for the operation of its legislative and executive authority than is to be found in any other Federal Constitution. It may be that the residuary powers are given to the Centre and not to the States. But these features do not form the essence of federalism. The chief mark of federalism, as I said lies in the partition of the legislative and executive authority between the Centre and the Units by the Constitution. This is the principle embodied in our Constitution.” (emphasis supplied)

The Constitution incorporates the concept of federalism in various provisions. The provisions which establish the essence of federalism i.e. having States and a Centre, with a division of functions between them with sanction of the Constitution include, among others, Lists II and III of Seventh Schedule that give plenary powers to the State Legislatures; the authority to Parliament to legislate in a field covered by the State under Article 252 only with the consent of two or more States, with provision for adoption of such legislation by any other State; competence of Parliament to legislate in matters pertaining to the State List, only for a limited period, under Article 249 “in the national interest” and under Article 250 during “emergency”; vesting the President with the power under Article 258(1) to entrust a State Government, with consent of the Governor, functions in relation to matters to which executive power of the Union extends, notwithstanding anything contained in the Constitution; decentralization of power by formation of independent municipalities and Panchayats through 73rd and 74th Amendment; etc. In re: Under Article 143, Constitution of India, (Special Reference No. 1 of 1964) [AIR 1965 SC 745 (Paragraph 39 at 762)], this Court ruled thus: “In dealing with this question, it is necessary to bear in mind one fundamental feature of a Federal Constitution. In England, Parliament is sovereign; and in the words of Dicey, the three distinguishing features of the principle of Parliamentary Sovereignty are that Parliament has the right to make or unmake any law whatever; that no person or body is recognised by the law of England as having a right to over-ride or set aside the legislation of Parliament, and that the right or power of Parliament extends to every part of the Queen’s dominions (1). On the other hand, the essential characteristic of federalism is “the distribution of limited executive, legislative and judicial authority among bodies which are coordinate with and independent of each other”.

The supremacy of the constitution is fundamental to the existence of a federal State in order to prevent either the legislature of the federal unit or those of the member States from destroying or impairing that delicate balance of power which satisfies the particular requirements of States which are desirous of union, but not prepared to merge their individuality in a unity. This supremacy of the constitution is protected by the authority of an independent judicial body to act as the interpreter of a scheme of distribution of powers. Nor is any change possible in the Constitution by the ordinary process of federal or State legislation (2). Thus the dominant characteristic of the British Constitution cannot be claimed by a Federal Constitution like ours.”

In the case of State of Karnataka v. Union of India & Anr. [1978 (2) SCR 1], Justice Untwalia (speaking for Justice Singhal, Justice Jaswant Singh and for himself), observed as follows:

“Strictly speaking, our Constitution is not of a federal character where separate, independent and sovereign State could be said to have joined to form a nation as in the United States of America or as may be the position in some other countries of the world. It is because of that reason that sometimes it has been characterized as quasi-federal in nature”.

In S. R. Bommai & Ors. v. Union of India & Ors. [AIR 1994 SC 1918 : 1994 (3) SCC 1], a Constitution Bench comprising 9 Judges of this Court considered the nature of federalism under the Constitution of India. Justice A.M. Ahmadi, in Paragraph 23 of his Judgment observed as under: ” the significant absence of the expressions like ‘federal’ or ‘federation’ in the constitutional vocabulary, Parliament’s powers under Articles 2 and 3 elaborated earlier, the extraordinary powers conferred to meet emergency situations, the residuary powers conferred by Article 248 read with Entry 97 in List I of the VII Schedule on the Union, the power to amend the Constitution, the power to issue directions to States, the concept of a single citizenship, the set up of an integrated judiciary, etc., etc., have led constitutional experts to doubt the appropriateness of the appellation ‘federal’ to the Indian Constitution. Said Prof. K. C. Wheare in his work ‘Federal Government:

‘What makes one doubt that the Constitution of India is strictly and fully federal, however, are the powers of intervention in the affairs of the States given by the Constitution to the Central Government and Parliament’.”

Thus in the United States, the sovereign States enjoy their own separate existence which cannot be impaired; indestructible States having constituted an indestructible Union. In India, on the contrary, Parliament can by law form a new State, alter the size of an existing State, alter the name of an existing State, etc. and even curtail the power, both executive and legislative, by amending the Constitution. That is why the Constitution of India is differently described, more appropriately as ‘quasi- federal’ because it is a mixture of the federal and unitary elements, leaning more towards the latter but then what is there in a name, what is important to bear in mind is the thrust and implications of the various provisions of the Constitution bearing on the controversy in regard to scope and ambit of the Presidential power under Article 356 and related provisions.”

(emphasis supplied) Justice K. Ramaswami in Paragraph 247 and 248 of his separate Judgment in the same case observed as under: – “247. Federalism envisaged in the Constitution of India is a basic feature in which the Union of India is permanent within the territorial limits set in Article 1 of the Constitution and is indestructible. The State is the creature of the Constitution and the law made by Articles 2 to 4 with no territorial integrity, but a permanent entity with its boundaries alterable by a law made by Parliament. Neither the relative importance of the legislative entries in Schedule VII, Lists I and II of the Constitution, nor the fiscal control by the Union per se are decisive to conclude that the Constitution is unitary. The respective legislative powers are traceable to Articles 245 to 254 of the Constitution. The State qua the Constitution is federal in structure and independent in its exercise of legislative and executive power. However, being the creature of the Constitution the State has no right to secede or claim sovereignty. Qua the Union, State is quasi-federal. Both are coordinating institutions and ought to exercise their respective powers with adjustment, understanding and accommodation to render socio-economic and political justice to the people, to preserve and elongate the constitutional goals including secularism.

248. The preamble of the Constitution is an integral part of the Constitution. Democratic form of Government, federal structure, unity and integrity of the nation, secularism, socialism, social justice and judicial review are basic features of the Constitution.”

(emphasis supplied) Justice B. P. Jeevan Reddy, writing separate Judgment (for himself and on behalf of S.C. Agrawal, J.) concluded in Paragraph 276 thus:

“The fact that under the scheme of our Constitution, greater power is conferred upon the Centre vis-`-vis the States does not mean that States are mere appendages of the Centre. Within the sphere allotted to them, States are supreme. The Centre cannot tamper with their powers. More particularly, the Courts should not adopt an approach, an interpretation, which has the effect of or tends to have the effect of whittling down the powers reserved to the States.

must put the Court on guard against any conscious whittling down of the powers of the States. Let it be said that the federalism in the Indian Constitution is not a matter of administrative convenience, but one of principle the outcome of our own historical process and a recognition of the ground realities. . enough to note that our Constitution has certainly a bias towards Centre vis-`-vis the States (Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan, (1963) 1 SCR 491 at page 540 : (AIR 1962 SC 1406). It is equally necessary to emphasise that Courts should be careful not to upset the delicately crafted constitutional scheme by a process of interpretation.

(emphasis supplied) In paragraph 98, Sawant, J. proceeded to observe as under: –

“In this connection, we may also refer to what Dr Ambedkar had to say while answering the debate in the Constituent Assembly in the context of the very Articles 355, 356 and 357. He has emphasised there that notwithstanding the fact that there are many provisions in the Constitution whereunder the Centre has been given powers to override the States, our Constitution is a federal Constitution. It means that the States are sovereign in the field which is left to them. They have a plenary authority to make any law for the peace, order and good Government of the State.”

In Paragraph 106, his following observations are relevant:-

“Thus the federal principle, social pluralism and pluralist democracy which form the basic structure of our Constitution demand that the judicial review of the Proclamation issued under Article 356(1) is not only an imperative necessity but is a stringent duty and the exercise of power under the said provision is confined strictly for the purpose and to the circumstances mentioned therein and for none else.” (emphasis supplied) In ITC Ltd. v. Agricultural Produce Market Committee & Ors. [(2002) 9 SCC 232], this Court ruled thus: – “The Constitution of India deserves to be interpreted, language permitting, in a manner that it does not whittle down the powers of the State Legislature and preserves the federalism while also upholding the Central supremacy as contemplated by some of its articles.” (emphasis supplied) In State of West Bengal v. Kesoram Industries Ltd. & Ors. [AIR 2005 SC 1646 : (2004) 10 SCC 201], decided by a Constitution bench comprising 5 Judges, the majority judgment in Paragraph 50 observed as under: “Yet another angle which the Constitutional Courts would advisedly do better to keep in view while dealing with a tax legislation, in the light of the purported conflict between the powers of the Union and the State to legislate, which was stated forcefully and which was logically based on an analytical examination of constitutional scheme by Jeevan Reddy, J. in S.R. Bommai and others v. Union of India [(1994) 3 SCC 1], may be touched. Our Constitution has a federal structure. Several provisions of the Constitution unmistakably show that the Founding Fathers intended to create a strong centre.”

(emphasis supplied) True, the federal principle is dominant in our Constitution and that principle is one of its basic features, but, it is also equally true that federalism under Indian Constitution leans in favour of a strong centre, a feature that militates against the concept of strong federalism. Some of the provisions that can be referred to in this context include the power of the Union to deal with extraordinary situations such as during the emergency (Article 250, 252, 253) and in the event of a proclamation being issued under Article 356 that the governance of a State cannot be carried on in accordance with the provisions of the Constitution; the power of the Parliament to legislate with respect to a matter in the State List in the national interest in case there is a resolution of the Council of States supported by prescribed majority (Article 249); the power of the Parliament to provide for creation and regulation of All India Services common to Union and the States in case there is a Resolution of the Council of States supported by not less than two-third majority (Article 312); there is only one citizenship namely the citizenship of India; and, perhaps most important, the power of the Parliament in relation to the formation of new States and alteration of areas, boundaries or names of States (Article 3). This Court in the case of State of West Bengal v. Union of India [(1964) 1 SCR 371 at 396], has observed that our Constitution is not of a true or a traditional pattern of federation. In a similar vein are other judgments of the Court, like State of Rajasthan & Ors. v. Union of India Etc. Etc. [(1978) 1 SCR 1 at pages 4G and 33F], that speak of the conspectus of the provisions that whatever appearance of a federal structure our Constitution may have, judging by the contents of the power which a number of provisions carry with them and the use made of them, is in its operation, more unitary than federal.

The concept of federalism in our Constitution, it has been held, is vis-`-vis the legislative power as would be evident by various Articles of the Constitution. In fact, it has come into focus in the context of distribution of legislative powers under Article 246. {ITC Ltd. V. Agricultural Produce Market Committee & Ors. [(2002) 9 SCC 232]} The Commission on Inter-State Relations (Sarkaria Commission), in its Report has specifically said that the Constitution as emerged from the Constituent Assembly in 1949, has important federal features but it cannot be federal in the classical sense. It was not the result of an agreement to join the federation, unlike the United States. There is no dual citizenship, i.e., of the Union and the States. (Pages 8 and 9 of the Report of the Commission on Centre-State Relations, Part-I, and paragraphs 1.3.04, 1.3.05, 1.3.06, 1.3.07]. The arguments of the Writ Petitioners about the status, position, role and character of the Council of States in the Constitutional scheme have to be examined in the light of well- settled law, culled out above, as to the nature of Indian federalism.

In his attempt to argue that there necessarily has to be a territorial nexus with a State or a Union Territory in a federal set up, Mr. Rao for the State of Tamil Nadu referred to the use of the expression “We, the people of India” in the Preamble, description of India as a “Union of States” in Article 1; territory of India being comprised of (1) the territories of the States and

(b) the territories of the Union Territories as per Article 1(3); Article 326 requiring a person to be a citizen of India so as to be an elector; and the provisions about citizenship of India as contained in Articles 5, 6, 8 & 9 laying stress on the territory of India. He also referred to the Collins Paperback English Dictionary to point out meanings of the expressions “Country” [a territory distinguished by its people, culture, geography, etc.; an area of land distinguished by its political autonomy; state; the people of a territory or state] and “State” [a sovereign political power or community; the territory occupied by such a community; the sphere of power in such a community: affairs of state; one of a number of areas or communities having their own governments and forming a federation under a sovereign government, as in the U.S.].