EMERGING CHALLENGES TO THE CONSTITUTION OF INDIA:
FEDERAL STRUCTURE
-ASHUTOSH SHANKAR

INTRODUCTION

India i.e. Bharat shall be a Union of States says Art. 1 of the Constitution of India.
It is also stipulated in the Constitution that India i.e. Bharat shall be a Union of States and the territories and such other territories as may be acquired. The constitution thus, postulates India as a Union of States and consequently, the existence of the federal structure of governance for this Union of States becomes a basic structure of the Constitution of India. All the provisions made in this Constitution are, therefore, liable to be so interpreted as will protect, if not enhance, and certainly not destroy the basic structure namely federal structure of the Union of India.
In this reference, adopting the test of Prof. Wheare wherein he says that “any definition of federal government which failed to include the United States would be thereby condemned as unreal.”

Therefore, we need to see the condition prevailing in the U.S., the basic principles of federalism, and then in its light analyze the provisions of our Constitution.

THE CONCEPT OF FEDERALISM

‘Federalism’ is one of those good echo words that evoke a positive response toward many concepts as democracy, progress, constitution, etc. The term has been seen to be applied to many successful combinations of unity with diversity, pluralism and cooperation within and among nations.
When we elaborate upon the essential feature of federalism that the specialists in the field offer, it is noted that they all seem to contain the following basis points:
First, in a federation the political authority is territorially divided between two autonomous sets of separate jurisdictions, one national and other provincial, which both operate directly from the people. Second, the existence of a single, indivisible but yet composite federal nation is simultaneously asserted.
In this regard Prof. Wheare made an important observation that for the existence of a federal principle, it is important that the power of governance is divided between co- ordinate and independent authorities.
Further, an examination of the U. S. Constitution shows that the principle of organization upon which it is based, (the federal principle) is that the field of government is divided between a general authority and regional authorities which are not subordinate to one another.
It is also said that for the in order to be called ‘federal’, it is not necessary that the Constitution should adopt the federal principle completely. It is enough if the federal principle is the predominant principle in the Constitution.
In India, we say that the federal principle is dominant in our Constitution.
Keeping this framework of ‘federalism’ in mind, we next move to state that there are three basic organs of governance, they being: Executive, Legislature and Judiciary.
Now when we say that a country has federal features of governance, it must be understood that the federal principle is present in all these three organs of the government. If it be not so then in actual practice the principle of federalism will be watered down. This is because if the component units themselves do not follow the mandates of the Constitution, then the entire federal structure would lose its significance or rather would not even qualify to be called as federal in nature.

INDIAN CONDITION PRIOR AND AFTER INDEPENDENCE

India became independent in 1947. Its parliament, also serving as a Constituent Assembly
(CA), drafted the new constitution that came into effect on January 26, 1950, establishing the federal union of India.

India is the 7th largest country by geographic area, 2nd most populous, 4th largest in GDP (Purchasing Power Parity), has the 3rd largest military force 1, and is the 12th largest economy in the world. India is a republic consisting of 28 states and seven unions with a parliamentary form of democracy. A country the size of a continent, with an area of 13,654,000 sq. miles,

“India is comprised of 16 percent Dalits, known as scheduled castes. Around 8 percent of the population belongs to one of 461 indigenous adivasi groups. Many Indians speak more than one language. The Indian census lists 114 languages (22 of which are spoken by one million or more persons) that are further categorized into 216 dialects (mother tongues) spoken by 10,000 or more speakers. There is significant cultural diversity within the nation, as 40% of the population belongs to disadvantaged groups; i.e. the scheduled castes (11.6%) and scheduled tribes (31.8%).”

An estimated 850 languages are in daily use, and the Indian Government officially lists 1,652 dialects. The teaching of Hindi and English is compulsory in most states and union territories. Twenty-two languages are legally recognized by the constitution for various political, educational, ethnic -cultural, and regional purposes: Assamese, Bengali, Bodo, Dogri, Gujarati, Hindi, Kannada, Kashmiri, Konkani, Maithili, Malayalam, Manipuri, Marathi, Nepali, Oriya, Punjabi, Sanskrit, Santhali, Sindhi, Tamil, Telugu, and Urdu. About 80.5 percent of the population is Hindu, 13.4 percent Muslim, 2.3 percent Christian, 1.9 percent Sikh, 0.8 percent Buddhist, and 0.4 percent Jain and others 3. India's literacy rate is 65%. The government represents 1.17 billion people comprising 17 percent of the world population. The States Reorganization Act of 1956 was formed on an ethnic- linguistic basis. Besides states, India was further divided into 610 districts for basic governance and administration, which were further divided into villages. Ethnic tensions were resolved reorganizing the state into ethnic and linguistic lines by means of the Act. “Several new states have been created out of existing states since 1956. Bombay State was split into the linguistic Gujarat and Maharashtra states on May 1, 1960 by means of the Bombay Reorganization Act. The Punjab Reorganization Act of 1956 divided the Punjab into linguistic and religious lines that created a new Hindu and Hindi-speaking state of Haryana, converting the northern districts of Punjab into Himachal Pradesh.

“Nagaland was made a state in 1962, Meghalaya and Himachal Pradesh in 1971, Tripura and Manipur in 1972. Sikkim joined the Indian Union as a state in 1975. Similarly, Mizoram was made a state in 1986, and Goa and Arunachal Pradesh in 1987. However, Goa’s northern enclaves of Daman and Diu became separate union territories in 1987. Goa, which comprises one-third of the population, is primarily Christian, but it is not a Christian State.”

Chhattisgarh was created on November 1, 2000 from eastern Madhya Pradesh; Uttaranchal was renamed Uttarakhand on November 9, 2000 which created the Hilly regions of northwest Uttar Pradesh; and Jharkhand was created on November 15, 2000 out of the southern districts of Bihar. Besides the 28 states in India, there are seven union territories; Andaman and Nicobar Islands, Chandigarh, Dadra and Nagar Haveli, Daman and Diu, Lakshadweep, Pondicherry, and the National Capital Territory of Delhi. A Union territory is a sub-national administrative division of India, in the federal framework of governance. Unlike the states, union territories are ruled directly by the federal central government, the president appoints an administrator or governor in each territory. However, the capital of Delhi, the Union territory of Delhi, and Pondicherry have been given partial statehood.”

All of India was not satisfied when it declared itself a republic through a New Constitution. Dr. B. R. Ambedkar, Chairman of the Constitution Drafting Committee in India and PM, Jawaharlal Nehru, were in favour of unitary state. Sardar Patel, then a powerful Home Minister, played a pivotal role in the cause of federalism. When the New Constitution was adopted in 1950 by the CA, India had large federal states, including Assam, Jammu-Kashmir, Bihar, Uttar Pradesh, and Odisha which were formed on geo-political foundations, with the exception of Odisha. Odisha was developed along ethno -cultural lines. Notably, Uttar Pradesh and Bihar had already been practicing semi-autonomy before the constitution came into effect.

In 1956, eight-new federal states emerged based on ethnic- linguistic diversity, following the State Reorganization Act of that year. They are: Andhra Pradesh, Karnataka, Kerala, Madhya Pradesh, Punjab, Rajasthan, Tamil Nadu and Tripura.

FEDERALISM WITH REGARDS TO INDIAN CONSTITUTION

The framing of the Indian Constitution and enunciation of the principle of federalism would have weighed heavily on the conscious and subconscious minds of the members of the Constituent Assembly (CA), formed in December 1946.2 Writing of the Constitution against the backdrop of the partition of the country, the accompanying communal frenzy and integration of 565-odd princely states with erstwhile British provinces into one functioning unit, would have made the task even more complex. The Constituent Assembly, after prolonged debates, settled for “unitary” federalism in the backdrop of the challenges confronting the emerging or just emerged independent nation.

Even though the framers of the Constitution were divided on the issue of federalism as indicated by the prolonged and passionate debates that took place in the Constituent Assembly, there was a general consensus towards building India as a nation and a comprehensive understanding of the nation as a whole; they did not approach the issue of constitution writing visualising India in parts. Further, historical experiences, like the rise and fall of the Mauryan, Gupta, Mughal and other empires, could also have built the argument in favour of “unitary federalism”. Before the formation of the Constituent Assembly, the Cabinet Mission Plan had “outlined a central government with very limited powers to be confined to foreign affairs, defence and communications”.

However, the Indian National Congress and the Muslim League could not reach an agreement on the Plan. Further, the first report by the Constituent Assembly also envisioned a relatively weak Centre as advocated by the Cripps and Cabinet Mission Plans. “The passing of the India Independence Act and the eventual Partition of India led the Constituent Assembly to adopt a more unitary version of federalism”.

Interestingly, Mahatma Gandhi was in favour of a decentralized structure and had expressed a preference for a panchayat or village-based federation. Dr B. R. Ambedkar and Prime Minister Jawaharlal Nehru were in favour of a unitary state while Home Minister Sardar Vallabhbhai Patel and many others stood for the cause of federalism.
Ultimately a healthy compromise was arrived at, to ensure a balance of power between the Centre and States and the Constitution described India as a 'Union of States' implying that its unity is indestructible. It prescribed the structure of the Union government and also that of the state governments, together with one common citizenship for the whole of India rather than a dual citizenship.

The federal system brought the provinces together and placed them all on the same legal footing. “Use of the term 'union' indicated that Indian federalism did not come into existence due to some mutual agreement or compact among the constituent units. These units were also not given freedom to secede from the union. There were no provisions of safeguards for the protection of states' rights because the states were not sovereign entities at the time of the formation of the Union”.

It goes to the credit of the framers of the Constitution that they had visualised and anticipated contingencies which might arise at some point in the future and had made provisions to meet them. As pointed out by constitutional experts, “The Constitution by adapting itself to changed circumstances strengthens the Government in its endeavour to overcome the crisis”. “It is rather a merit of the Constitution that it visualises the contingencies when the strict application of the federal principle might destroy the basic assumption on which our Constitution is built”.

Scholars and experts have held different views while interpreting the federal nature of the Indian Constitution. Some say that it has the “essential characteristics of federalism” like: written constitution, distribution of powers, supremacy of the constitution, rigidity, and authority of courts; others claim that it is not federal as many classical elements of federalism are absent in the text”. According to this school of thought, the Indian Constitution is not federal enough as it lacks dual polity or dual form of Government. In the case of the US Constitution, the field of government is divided between the Federal and State Governments which are not subordinate to one another but are co-ordinate and independent within the spheres allotted to them. They argue that the existence of coordinate authorities independent of each other is the gist of the federal principle, and in the absence of this feature the Indian Constitution does not qualify to be described as federal.

It is further argued that “the Constitution guarantees individual rights of certain groups such as Scheduled Castes and Scheduled Tribes, and minorities, but not to states as such. It does not concede even the right of equal representation to the states in the Upper House of the Union Parliament.

India's Constitution is not a covenant, or compact, between the states; rather the states are the creation of Constitution and subsequently of Parliament”. Article 2 of the Constitution empowers Parliament “to admit into Union, or establish, new States on such terms and conditions as it thinks fit”. Article 3 gives more comprehensive powers to Parliament for “formation of new states and alteration of areas, boundaries or names of the existing States”. Part XI of the Indian Constitution elaborately defines the power distribution between the federal government (Centre) and the States. This part is divided into legislative and administrative powers. The Seventh Schedule of Constitution created three lists of subjects, one each meant for the Centre and States, and a concurrent one of subjects that fell under joint domain of the Centre and states. List 1—Union List—has 97 subjects in respect of which the Centre is empowered to enact laws. List 2—State List—has 66 subjects that fall under the competence of a State for legislation. List 3— Concurrent List—has 47 subjects on which both the Centre and the States are empowered to legislate and enact laws. Not only did the Constitution clearly demarcate the powers of the Centre and States but it also made provision of Articles 249, 250, 252 and 253 which enable the Centre to legislate on issues included in the State list. In this manner, the Constituent Assembly took care of every possible exigency.

Professor Ronald L Watts, a renowned expert on federalism, defends the Indian approach saying: “In some cases, however, where territorial social diversity and fragmentation is strong, it has been considered desirable, as in Canada and India initially, and in Spain, to give the federal government sufficiently strong, and even overriding, powers to resist possible tendencies to balkanization”.

EMERGING CHALLENGES AND THE NEW DISCOURSE ON FEDERALISM

With the advent of coalition politics, the Centre-State relationship started coming under considerable strain as different political parties assumed power at the Centre and in different States. The model of 'cooperative federalism' for which foundations had been laid in the Constitution also became a reference point in the debate on evolving principle of federalism in the Constitution. Generally, there is an intense debate on the issue of federalism in the public domain and expert opinion is sharply divided on its interpretation as enshrined in the Constitution.

Undoubtedly, India has emerged as a major industrial, economic and military power. At the same time, its soft power has also been ascending. This has resulted in empowerment of the political class with contradicting voices pulling society and the polity in opposite directions. At the same time, the widening gap between the rich and poor and increasing socio-economic inequality have created friction between different groups in society. The nation, after six decades of independence, is witnessing significant changes in all walks of life and faces new set of challenges needing new and innovative responses.

The country has also been transiting from being one with a feudal culture to an industrial society. The process is undoubtedly slow but it is pushing citizens and inhabitants to often co-exist with value norms of both feudal as well as industrial societies. This has resulted in generating friction and fissures in society and pressure points in the polity. It has given birth to parallel and multi-layered discourses in polity and society. Further, the nation has been simultaneously witnessing the emergence and growth of regionalism and strong identity politics. States are increasingly assuming significance in the backdrop of more and more political parties occupying the political space which till 1967 was primarily the turf of the Indian National Congress. Today, regional parties are in power in nine of the 28 States of the Indian Union. The two national parties—Indian National Congress and Bharatiya Janata Party (BJP)—are in command in the remaining 19 states. Linguistic diversity along with polycentric socio-cultural spread of the nation has raised questions on the role of a powerful Union government.

Coalition politics has today acquired proportions which were unimaginable at the time of formation of independent India. The issue came to the fore in 1969 when at the instance of Chief Minister M. Karunandihi a three member expert committee was formed by the Government of Tamil Nadu under the chairmanship of Dr P. V. Rajamannar to examine the working of India's Constitution and to recommend the reallocation of powers between the central government and the states. The Rajamannar Commission called for the abolition of Articles 249, 356 and 357 of the Constitution, which gives Parliament the power to legislate with respect to a matter in the State List and also to determine and act on a failure of the constitutional machinery of a state due to emergencies. The Commission further suggested that a few Union entries should be transferred to the State List, including the power to levy some excise taxes (entry 84 of the Union List), and the detachment of most non-vital industries from Union control (entry 52 of the Union List).
The pro-States argument received a further boost in 1977 when the Government of West Bengal released a Memorandum on Centre-State Relations. This Memorandum adopted the position that the Constitution itself had been altered, such as the 42nd Amendment to the Constitution, which allowed transfer of education from the State List to the Concurrent List to the exclusive benefit of the Centre. The West Bengal memorandum followed in the footsteps of the Rajamannar Commission by arguing that the advocacy for strong states “is not necessarily in contradiction to that of a strong Centre, once the respective spheres of authority are clearly marked out”.

In 1988, the Justice R. S. Sarkaria Commission submitted a 1,600 page report carrying 256 specific suggestions for improving Centre-State relations. A number of its recommendations were implemented. In 2002 again, The National Commission to Review the Working of the Constitution (NCRWC) set up by the BJP-led National Democratic Alliance government gave considerable attention to the issue of Union-State Relations. Chapter 8 of the Report was devoted to this subject. There were specific recommendations on important subjects like Finance, Commerce and Trade, Resolution of disputes and Executive. The Commission felt that “there is no dichotomy between a strong Union and strong States. The relationship between the Union and States is a relationship between the whole body and its parts. For a healthy body, it is necessary that its parts are strong. It is felt that the real source of many of our problems is the tendency of centralisation of powers and misuse of authority”.

PRESENT SCENARIO
At present, three parallel discourses on Centre-State dynamics exist in the public domain. The first one talks about retaining the present federal structure with some amendments to the Constitution to make it more relevant to present day requirements. They justify this with the argument that the nation building process is not yet complete and serious challenges continue to confront the nation. This view receives support from the Congress, and some other sections that see country and society as one and not as an aggregate of regional identities. In the past, the BJP was also a strong votary of this viewpoint.
The second discourse stresses that the principle of federalism needs to be redefined. States need to be empowered more in the backdrop of the changing nature of polity, economy and society. The Centre's role as defined in the Constitution needs to be curtailed and restricted. This view is supported largely by regional parties, regional leaders and the Left parties. Lately, the BJP has also been supporting this view.

This was highlighted in the debate in the two houses of Parliament on the Lokpal and Lokayukta Bill 2011 wherein the principle of federalism featured prominently.
During the debate, different regional parties including those belonging to the ruling coalition at the Centre, joined hands with the main opposition party-the Bharatiya Janata Party-in opposing the proposed Central legislation with the argument that making Lokayuktas mandatory for states violated the Constitution's federal structure and that it impinged on the autonomy of states. These voices made a litany of complaints against the Centre.

Similarly, even though foreign policy is the prerogative of the Central government and the Constitution does not allow the states to take initiatives in these matters, the West Bengal government challenged the Central foreign policy on sharing the waters of river Teesta by stalling the bilateral treaty with Bangladesh and causing a major embarrassment to the Manmohan Singh Government. While Mamata Banerjee emerged as a recent interventionist in the field of foreign policy, there have been other voices in the last few years that have been arguing in favour of the role of states; particularly, states with an international border are vocal on issues which directly or indirectly impact them.
Similarly, when the issue of border trade with China came up for discussion, Sikkim's views were sought. In the ongoing negotiations in the WTO on agriculture related issues, the views of states have been incorporated in India's stand. Tamil Nadu has on a number of occasions demanded the Centre's intervention in Sri Lanka and created serious problems for foreign policy makers in the Central Government.

It is important that these demands should be seen in a larger perspective. For example, when West Bengal demands that the Central government cannot conclude an agreement on the issue of waters of a river that flows through the state to Bangladesh, it also needs to consider the implications on other states and related security issues. The North Eastern States could have benefitted with more river water transport from the north eastern region of India to Bangladesh, opening the gates for more commerce. Bangladesh has proactively cooperated in controlling militant activities in North East, particularly Assam, which now gets compromised over the rift on Teesta waters.

In the light of this second discourse, is it indicative that the time has come to review the constitutional arrangement with the objective of creating enough room for economic development of states without compromising the overall national interest? The North Eastern states of the country have borders with various countries like Myanmar, Bangladesh, China, Bhutan and Nepal and their proximity to countries east of India demands that their economies should benefit more from cooperation with the economies across their borders. In this manner, states could play a role in regional diplomacy. State leaders have been suggesting that New Delhi should take them on board while conducting economic diplomacy, particularly with the neighbouring countries.

Federalism is also seen in the context of decentralisation of powers. Economic liberalisation after 1991, undoubtedly, put India on a fast-track growth trajectory; however, inequity and regional imbalance also increased. The states, therefore, started demanding more flexibility in their policies and growth strategies and the regional parties intensified their stir on devolving of powers to the third tier of government like the local self governments and Panchayats. The third discourse suggests a relook at the Constitution which means redefining federalism and also changing the form of government at the Centre. The demand was made in '70s and '80s when political parties and a cross section of civil society were arguing in favour of a presidential form of government in place of the present parliamentary form of government.

CONCLUSIONS AND SUGGESTIONS
In the light of the above discussion we can conclude that since India is a federation, Though at some places, it is felt that the federal set up faces severe setbacks, and being done either by faulty organization, or some of the constitutional provisions, or due to wrong interpretation of the provisions of the Constitution.
It has also to be understood that on certain occasions the compliance with the federal principle might bring in undesirable results or something that is not at all contemplated, or might hamper the justice delivery mechanism, then on such instances, there is needed to be adopted an approach tolerative enough for incorporating some another features of some other type of judiciary or justice delivery system. To do so to meet the exigencies of situations on some occasions will not be decisive of the final trait of any set up.
Herein we emphasize on the adoption of the federal features because this suits to the needs of our country. By keeping the federal characters, the Constitution framers chose to retain the strong ‘national’ character. Though the term ‘federal’ or ‘federalism’ is nowhere in our Constitution, or for that matters in the American Constitution as well. Had the term also been used, then too it would not have made a vital difference because federalism has several manifestations, depending upon the location of the decisive authority and the dynamics of relationship between the Centre and the States.
We, in India aim for a democratic society, wherein, government even upto the grass roots is contemplated, then for the management of such a government, there judiciary has also to be organized on similar lines.
For this the courts should deliver decisions in the backdrop of the theme of our Constitution. They should be coherent with the Constitutional provisions as well.
As the Constitution does not emphasize on a strict separation of powers, therefore in the same line we can say that the Constitution does not cannot enforce strictly for the federalism principles as well. That we say after looking into the limitations of our country, its features, and seeing to the varying and growing needs of time, and thus in order to avoid friction there needs to be adopted a federal approach keeping the federal structure intact. This would also prevent our structure either from disintegrating or yielding to the unitary forces. The classical theories of separation of powers, federation, etc. cannot be adopted as they are. They need to be modified according to the conditions prevailing in each different place.
Therefore, what kind of federalism do we have and how does it respond to the basic realities and pressures and pulls of contemporary polity, what have we learnt from our experience, what sort of realignment would be preferable and efficient, do our Constitutional conventions and practices detract from this model or go in its favour, what is the trend and how do we catalyze the movement towards the desirable goals, all this needs to be given a thought. This is, therefore, a grey area of constitutional governance which requires a thoughtful deliberation.
This paper is therefore, an appraisal of the existing federalist package operating in India, particularly in the context of the constitutional provisions and looks at the prospects for the future. It does not set forth propositions, but seeks to initiate a debate.

REFERENCES
Articles
1. Palshikar, V. G., J., Federal Structure of the Constitution of India and Indian Judiciary, AIR 1997 Jl. 113.
Books

1. Basu, D. D., Commentary on the Constitution of India, Vol. K, ( Calcutta: Kamal Law House, 1991). 2. Cooley, Thomas M., The General Principles of Constitutional Law in the U. S. A., (Calcutta: Hindustan Law Book Co., 1994). 3. Duchacek, Ivo D., Comparative Federalism, 191, (New York: Holt, Rinehart & Winston, Inc., 1969). 4. Iyer, Venkat, Constitutional Perspectives, (New Delhi: ULPCL, 2001). 5. Jain, M. P., Indian Constitutional Law, (Nagpur: Wadhwa & Co., 2002). 6. Kneck, Gert W., Mathur, Sudhir Chandra, Federalism and Decentralisation, (New Delhi: Konrad Adenauer Foundation, 1995). 7. Pandey, J. N., Constitutional Law of India, (Allahabad: Central Law Agency, 2003). 8. Seervai, H. M., Constitutional Law of India, Vol. 1., 286, (New Delhi: Universal Book Traders, 2002). 9. Shukla, V. N., Constitution of India, (Lucknow: Eastern Book Co., 2001). 10. Wheare, K. C., Federal Government, 1, (London: Oxford University Press, 1971).

Web sites 1. http://www.uscourts.gov/supremecourt.html 2. http://www.lib.memphis.edu/govpubs//courts.html 3. http://mospi.nic.in/Mospi_New/site/inner.aspx?status=2&menu_id=14

--------------------------------------------
[ 1 ]. Mid Term project – Constitutional Law
[ 2 ]. http://mospi.nic.in/Mospi_New/site/inner.aspx?status=2&menu_id=14
[ 3 ]. Seervai, H. M., Constitutional Law of India, Vol. 1., 286, (New Delhi: Universal Book Traders, 2002).
[ 4 ]. Basu, D. D., Commentary on the Constitution of India, Vol. K, ( Calcutta: Kamal Law House, 1991).
[ 5 ]. Iyer, Venkat, Constitutional Perspectives, (New Delhi: ULPCL, 2001).