Essentials of the new Constitution.
242. The new Constitution of India has been built on basic concepts and against a background very different from those of the scheme embodied in the Government of India Act, 1935. Apart from the fact that the Crown which was an essential feature of the scheme of 1935, and had certain important functions to perform, disappears from the new Constitution, the former scheme was essentially based on a Rulers’ polity. It assumed that sovereignty, in theory as well as in actual practice, vested in the Ruler and that an acceding State consisted, as a federating unit, entirely of the sum total of the sovereignty and autonomous powers vesting in its Ruler and of the personal rights, privileges and dignities enjoyed by him.
243. The new Constitution of India gives expression to the changed conception of Indian unity brought about by two important developments, i.e., the partition of India and the ‘unionisation’ of states. The Cabinet Mission Plan, under which the Constituent Assembly of India was originally set up, envisaged a weak federal Centre as a measure of concession to the centrifugal trends of the times. It was thought by the authors of this plan that a tenuous constitutional relationship between the Centre and the Constituent units would satisfy the demand of the Muslim majority Provinces for the widest measure of freedom from Central control and reduce to the minimum the field of impingement on the sovereignty of the Rulers of States. The Congress agreed to a Central authority limited to the most essential subjects and to vest all residuary authority not only in the States but also in the Provinces to avert the threatened disruption of the country. With the secession of the Muslim majority Provinces from India, the raison detre for an attenuated Centre disappeared in so far as the relationship of the Centre with the Provinces was concerned. As regards the States, with the rapid demolition of the barriers which separated them from the Provinces, the question of their constitutional relationship with the Centre appeared in a new context. This altered the whole background and gradually the position veered round to a federal structure with a unitary bias, providing for a Centre strong enough to develop the resources of the country and to hold against disruptive forces.
244. Under the Constitution of India the residuary legislative authority, which includes power to impose taxes not specified in any of the Legislative Lists vests in the Union; the Union Parliament alone can make laws for the matters specified in the Union List; the Union has over-riding concurrent legislative authority covering a wide field of subjects; even with respect to matters in the State List, the Union Parliament has power to legislate in the national interests and in a state of emergency. The executive authority of every State is under a statutory obligation to ensure compliance with the Union laws and is to be so exercised as not to impede or prejudice exercise of the executive authority of the Union which extends to giving to the State executive such directions as may be necessary for that purpose. Any failure on the part of the State to comply with the directions issued by the Union executive in the exercise of the executive power of the Union under the Constitution, will enable the President to hold that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution and to apply the provisions relating to the break-down of the Constitutional machinery in States.
245. Unlike the scheme of 1935 the new Constitution is not an alliance between democracies and dynasties but a real Union of the Indian people built on the concept of the sovereignty of the people. In a democratic federal State, the fundamental rights of the citizens of one constituent unit cannot vary vis-a-vis citizens of another unit. In a people’s polity there is no scope for variegated constitutional patterns or disparities as between one federating unit and another. The legislative and executive authority of the Union in respect of the States will, therefore, be co-extensive with its similar authority in and over the Provinces. Subject to certain adjustments during the transitional period, the fiscal relationship of the States with the Centre will also be the same as that between the Provinces and the Centre. The Auditor-General of India will have full control over the audit systems in the States as also in the Provinces. The jurisdiction of the Supreme Court will now extend to the States to the same extent as in the case of the Provinces. The High Courts of the States are to be constituted and will function in the same manner as the Provincial High Courts. All the citizens of India, whether residing in States or Provinces, will enjoy the same fundamental rights and the same legal remedies to enforce them. In the matter of their constitutional relationship with the Centre and in their internal set-up, the States will be on a par with the Provinces. The new Constitution therefore finally eradicates all artificial barriers which separated the States from Provinces and achieves for the first time the objective of a strong, united and democratic India built on the true foundations of a co-operative enterprise on the part of the peoples of the Provinces and the States alike.
246. The important statement which the Hon’ble Sardar Vallabhbhai Patel made before the Constituent Assembly of India on October 12, 1949, in respect of the position of the States under the new Constitution concluded as follows:—
“I take the liberty to remind the House that at the Haripura Session, the Congress, in 1938, defined its objective in respect of the States as follows:—
‘The Congress stands for the same political, social and economic freedom in the States as in the rest of India and considers the States as integral parts of India which cannot be separated. The Purna Swaraj or complete Independence, which is the objective of the Congress, is for the whole of India, inclusive of the States, for the integrity and unity of India must be maintained in freedom as it has been maintained in subjection. The only kind of Federation that can be acceptable to the Congress is one in which the States participate as free units, enjoying the same measure of democratic freedom as the rest: of India’.
I am sure the House will agree with me when I say that the provisions which we are now placing before the House embody in them full achievement of that objective”.