We state below the federal features of Indian federation and thereafter refer to its unitary features.
1. India is a Dual Polity:
The Constitution makes a distribution of powers between the Union and the States, the jurisdiction of each being demarcated by the Union, State and Concurrent lists. The governments, in normal circumstances, function without interference from each other. Their fields of activities are distinct, defined and exhaustive. A state legislature can pass laws “for the whole or any part of the State,” with respect to matters expressively assigned to it in State List which contains 66 items.
Parliament may pass laws for the whole or any part of the territory of India, with respect to matters in Union List within its jurisdiction and power. It may, however, be pointed out that 97 specific items and one general clause were provided in the Union List. Forty seven items were provided in the Concurrent List. Laws with respect to concurrent subjects may be passed both by the Parliament and the State Legislature.
In case of a conflict between the two legislatures over a matter in the Concurrent List, the will of the Parliament prevails. The laws made by the State legislatures whether anterior to or posterior to the Union Laws give way to the latter and to the extent of the inconsistency are void.
The exhaustive list of Union subjects and the prevalence of the will of the Parliament over the state legislature, regarding the subjects in the concurrent list, reflects the tendency of making the Centre comparatively stronger. Moreover, this demarcation apart, the Parliament is empowered to make laws regarding any matter of any territory not included in a state list. It can also make laws with extra territorial operation.
2. Supremacy and Rigidity of the Constitution:
Supremacy of the Constitution—the hallmark of a federation—is an important feature of the Indian polity. The provisions of the Constitution are binding on all the governments—the Central and the states. Neither the Central government, nor any state government can override or contravene them. Neither of the governments can alter the distribution of powers, as done in the Constitution. The Constitution can be amended only through a regular amendment procedure which is quite cumbersome.
The supremacy of the Constitution also involves its written and rigid character. The Indian Constitution is the most elaborate and comprehensive document. Most of its clauses and articles are not easily amendable. It may not be as rigid as U.S. Constitution, but cannot be termed as flexible either.
A majority of total members of Parliament and two-third of members present and voting are required to amend most of its clauses and articles. Some specified matters can be amended if majority in at least half of the state legislatures concurs. It reflects rigidity of the Constitution.
3. Independent Judiciary:
Another pre-requisite of a federation, viz., and presence of independent judiciary— as a savior of the Constitution—also is present in the Indian Federation. The Supreme Court is an independent and impartial body to whom the States can turn for an impartial interpretation of the Constitution and get their position vindicated. “To this extent our Constitution is more federal than that of Switzerland or Russia?” The Supreme Court can declare any law passed by the Union Parliament or a State Legislature ultra vires, if it contravenes any of the provisions of the Constitution.
4. Two More Tests of Federation:
A.B. Keith adds two more tests of federalism:
(i) The right of the units to make their own constitutions and
(ii) Their right to define the privileges of their legislators.
When applied to India, the first test is conspicuous by its absence. The states have not been allowed to have their separate constitutions. The second test is adequately met. The Constitution is however silent as to whether a state legislature can define its privileges, in contravention of a law of the Parliament.
Dr. V.K. Rao opines “By far a greatest test is whether the States as units have their own citizens apart from mere residents, on whom state laws exclusively operate.” In other words, federation provides for double citizenship. Our federation lacks this characteristic. Indian federation caters to single citizenship which has been emphasized by Article 14 which gives equal protection of laws to all persons, and by Article 19 which permits freedom of movement, acquisition of property and practicing of any profession throughout the territory of India and by Article 301 which assures freedom of trade, commerce and intercourse throughout the territory of India. In this respect, obviously, the units have a far lesser degree of status than the units in the United States of America.
It is quite evident from the preceding facts that most of the prerequisites of a federation, viz., written, rigid and supreme Constitution, distribution of powers between Centre and states, and impartial and independent judiciary are found in the Indian Constitution. Dr. Ambedkar rightly remarks, “It establishes a dual polity with the Union at the Centre and the States at the periphery, each endowed with sovereign powers to be exercised in the field assigned to them respectively by the Constitution. The Union is not a League of States united in a loose relationship, nor are the States the agencies of the Union, deriving power from it. Both the Union and the States are created by the Constitution; both derive their respective authority from the Constitution. The one is not subordinate to the other in its own field; the authority of one is co-ordinate with that of the other.”