Federal and unitary constitution, Summaries of Constitutional Law

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CONSTITUTIONAL LAW - I

FEDERAL AND UNITARY CONSTITUTION

BY

MOHAMMAD ARISH

B.A.,LL.B(HONS) 3 RD^ SEMESTER S/F

TO

DR. MOHD ASAD MALIK SIR

FACULTY OF LAW

Acknowledgement

I am thankful to the Faculty Of Law, Jamia Millia Islamia for providing me an opportunity to research on the topic assigned to me which ultimately summated the knowledge I had on the subject from both the critical and analytical perspective of learning.

Thanking You, Mohammad Arish

1. Introduction.

Every country has its own constitution within the scope of which a country is governed by the people. Without constitution one cannot imagine an organized society, law and order in a country. A constitution is set of rules for government, often codified as a written document that establishes principles of an autonomous political entity. In the case of countries, this term refers specifically to a national constitution defining the fundamental political principles, and establishing the structure, procedures, powers and duties, of a government. By limiting the government's own reach, most constitution guarantee certain rights to the people. The term constitution can be applied to any overall law that defines the functioning of a government, including several historical constitutions that existed before the development of modern national constitutions. A constitution is a system for government, codified as a written document, which contains fundamental laws and principles. It usually contains fundamental political principles, and establishes the structure, procedures, powers and duties, of a government. A constitution is a set of rules for government often codified as a written document that enumerates and limits the powers and functions of a political entity. There are two types of constitution - Federal and Unitary. Both the types will be analyzed in this work.

2. Federal Constitution.

In a federal set up there is a two tier of Government with well assigned powers and functions. In this system the central government and the governments of the units act within a well established sphere, co-ordinate and at the same time act independently. The federal polity, in other words, provides a constitutional device for bringing unity in diversity and for the achievement of common national goals. K.C.Wheare defines federal government as an association of states, which has been formed for certain common purposes, but in which the member states retain a large measure of their original independence. A federal government exists when the powers of the government for a community are divided substantially according to a principle that there is a single independent authority for the whole area in respect of some matters and there are independent regional authorities for other matters, each set of authorities being co- ordinate to and subordinate to the others within its own sphere. The Constitution of India has adopted federal features; though it does not, in fact, claim that it establishes a federation. The question whether the Indian Constitution could be called a federal constitution troubled the minds of the members of the Constituent Assembly. This question cannot be answered without going into the meaning of federalism and the essential features that are evident in federal state. A federal constitution has the following features:

• Constitution should be a written one.
• Rigid procedure of amendment.
• Distribution of powers between state and centre.
• Supremacy of judiciary.

4. Federal Constitution V. Unitary Constitution.

The distribution of powers between different levels of government is an important aspect of the constitutional organization of a state. Among states with two levels of government, distinctions can be made on the basis of the greater or lesser autonomy granted to the local level. The British government’s respect for local self-government has always been a characteristic of its constitution. In contrast, France traditionally had kept its local authorities under strict central control. In countries with three levels of government, the distribution of powers between the central and the intermediate governments varies. States formed through the union of formerly independent states usually maintain an intermediate level with considerable legislative, executive, and judicial powers (as in the United States, Argentina, and Switzerland), though some grant few powers to this level. The latter situation occurs often in countries that have introduced the intermediate level as a correction to their previous choice of two levels—as Italy did in its constitution of 1948 and Spain in its constitution of 1978. Depending on how a constitution organizes power between the central and subnational governments, constitution may be said to possess either a Unitary or Federal nature. In a unitary constitution the only level of government besides the central is the local or municipal government. Although local governments may enjoy considerable autonomy, their powers are not accorded constitutional status; the central government determines which decisions to “devolve” to the local level and may abolish local governments if it so chooses. In federal constitution there is an intermediate level of governmental authority between the central and the local; it usually consists of states or provinces, though other entities (e.g., cantons or republics) may exist in some countries. Aside from the number of levels, the most important distinction between a unitary system and a federal one is that the states or provinces of a federal state have constitutionally protected sovereignty. Within a federal system the state or provincial governments share sovereignty with the central government and have final jurisdiction over a broad range of policy areas. Federal and unitary constitutions are ideal types, representing the endpoints of a continuum. Most countries fall somewhere in between the two extremes—states can be more or less unitary or more or less federal. So-called “semi-federal” countries occupy a

middle category, possessing an intermediate level of government that does not have the same protections of sovereignty that the states or provinces of federal states enjoy. A proper understanding of these types of constitution requires the consideration of additional features of each type. The model federal state is characterized by the existence, at the national level, of a written, rigid constitution guaranteeing the several intermediate governments not only permanence and independence but also a full complement of legislative, executive, and judicial powers. The national constitution enumerates the powers granted to the central government; the remaining powers are reserved to the intermediate governments at the state or provincial level. These subnational entities are generally represented at the national level, possibly on an equal footing, in a second chamber of the national legislature (often called the upper house, or senate). They also often are central to the process of amending the national constitution. For example, some number of state or provincial legislatures may be required to consent to the ratification of amendments passed by the federal legislature. States or provinces in federal systems also have their own constitutions that define the institutions of their respective governments, as well as the powers that are devolved further to their local governments. Such constitutional arrangements are a guarantee against possible efforts of the central government to enlarge its jurisdiction and so imperil the important political role that intermediate governments play in a federal system. More than formal constitutional safeguards are required to preserve that role. Apart from constitutional amendments, the central government may seek to broaden its own powers through the use of constitutional clauses granting “implied powers.” In some federal states (e.g., Argentina and India), there are emergency provisions by which the central government may suspend the powers of individual state or provincial governments. If abused, these provisions—meant to be used only in cases of rebellion or other severe disturbance against the constitutional order—may seriously compromise the constitutionally enshrined principle of shared sovereignty that is the hallmark of federalism. Even in established federal democracies (e.g., Canada, Germany, and the United States), the exact distribution of powers between levels of government is a matter of constant dispute between central and subnational governments. Disputes about federal-state matters are often the subject of rulings in courts or constitutional tribunals or conferences involving the heads of the central and subnational governments.

5. Classifying Constitution As Federal Or Unitary.

Classifying a particular constitution as federal or unitary is usually straightforward, though in some cases it can be more difficult. The United States and Switzerland are clearly federal constitutions; all of the above-mentioned characteristics of the federal state are present in their constitutional systems. Australia and Germany too can be considered federal in all respects. Canada also is a federal constitution, despite the fact that some of the formal features of ideal federalism are absent from its 1982 constitution: the provinces’ powers, not the central government’s, are enumerated. Additionally, there is no constitutionally mandated representation of the provinces in the upper house of the federal legislature, whose members are appointed by the central government (though they are chosen, by convention, in a way that ensures provincial representation). Nevertheless, the provinces’ powers are vast, and the constitutional guarantees of their rights and independence are particularly strong.

6. Constitution Of India: Federal Or Unitary?

In India, there are two governments in existence, the Union Government and the State Government. The two governments do not subordinate with each other rather cooperate with each other while working independently. Though the Indian constitution has the traits of being a federal constitution, but in its strict sense, it is not 1. The presence of features which are necessary for existence of a federation is quite a unique aspect of Indian Constitution but on the other side, there are provisions which give more power to the Union Government vis-à-vis that of State governments. Henceforth, the Indian Constitutional structure is a quasi-federal structure and it was made like this in the 1935 Act. This Act laid down the foundations of federal form of government in India. It provided for the distribution of legislative powers between the Union and the provinces (the structure at that time). These provisions were laid down for promoting harmony and resolving differences between the provinces. The Act further maintained for a sense of cooperative relationships amongst the provinces. Getting into nuances of this Act, Sections 131, 132 and 133 laid down provisions for resolving the water related disputes. Basically, these provisions dealt with the problems relating to inter Province Rivers and river valleys. On the other hand, Section 135 of the 1935 Act laid down provisions for the creation of councils to deal with the coordination between the various provinces of the British India. The need for creating a cooperative relation between the provinces was felt even before the independence. The Indian Constitution has incorporated the principles in a detailed form which were actually laid down under the 1935 Act. A well designed, and more important, well-functioning system of federal governance, by virtue of its manifold benefits, plays a key role in promoting the stability and prosperity of nations as the heights attained in development by the leading federations of the world

• USA, Canada, Australia and Switzerland – demonstrate. On the other hand, unless carefully crafted, federal systems do not endure as evidenced by the disintegration of many of the federal formations that came into being in the last century, such as Soviet Russia, Yugoslavia, Czechoslovakia, Rhodesia, and Nyasaland (Watts, 1999)^2. As earlier stated, the Indian constitution though, claims to be decentralized and federal is somehow

1 http://www.halfmantr.com/display-polity/161-indian-federalism. 2 Amaresh Bagchi “Fifty Years of Fiscal Federalism in India – An Appraisal”.

The phrase ‘semi-federal’ was used for India in State of Haryana v. State of Punjab 6 , whereas in Shamsher Singh v. State of Punjab^7 , the constitution was called ‘more unitary than federal.’ Another case on this issue is that of State of West Bengal V. Union of India 8. This case dealt with the issue of exercise of sovereign powers by the Indian states. The Supreme Court in this case held that the Indian Constitution does not promote a principle of absolute federalism. The court further outlined four characteristics highlighting the fact that the Indian Constitution is not a “traditional federal Constitution”. First being that there is no provision of separate Constitutions for each State as required in a federal state. The Constitution of India is the supreme document, which governs all the states. Secondly , the Constitution can be altered only by the Union Parliament; whereas the States have no power to alter it. Thirdly, in contradiction to a federal Constitution, the Indian Constitution renders supreme power upon the Courts to invalidate any action which violates the Constitution. Fourthly, the distribution of powers facilitates local governance by the states and national policies by the Centre. The Supreme Court further held that both the legislative and executive power of the States is subject to the respective supreme powers of the Union meaning that Centre is the ultimate authority for any issue. The political sovereignty is unevenly distributed between the Union and the States with greater weightage in favor of the Union. Another reason which militates against the theory of the supremacy of States is that there is no concept of dual citizenship in India. The learned judges finally concluded that the structure of the India as provided by the Constitution is centralized, with the States occupying a secondary position vis-à-vis the Centre. Conversely, Justice Subba Rao was of the view that under the scheme of the Indian Constitution, sovereign powers are distributed between the Union and the States

6 ( 2004) Supp 2 SCR 849. 7 ( 1974) AIR 2192. 8 ( 1963) AIR 1241.

according to their respective spheres. The legislative field of the union legislature is much wide ranging than that of the State legislative assemblies; the laws passed by the Parliament should therefore have an upper hand over the State laws in case of any conflict. In a few cases of legislation where inter-State disputes are involved, sanction of the President is made mandatory for the validity of those laws. Further, every State has its judiciary with the State High Court at the apex. This particular thing in his opinion of the learned judge does not affect the federal principle. He while arguing this gave the parallel of Australia. In Australia, appeals against certain decisions of the High Courts of the Commonwealth of Australia lie with the Privy Council. Thus, the Indian federation cannot be negated on this account. In financial matters, the Union has more resources at its disposal as compared to the states. Thus, the Union being in charge of the purse strings can always persuade the States to abide by its advice. The powers vested in the union in case of national emergencies, internal disturbance or external aggression, financial crisis, and failure of the Constitutional machinery of the State are all extraordinary powers in the nature of safety valves to protect the country’s future. The power granted to the Union to alter the boundaries of the States is also an extraordinary power to meet future contingencies. In their respective spheres, both executive and legislative, the States are supreme. In a nutshell, Justice Subba Rao argued that the Union has a bigger role to play when compared to states and therefore, the Union powers have to supersede the State’s. This minority view provided by Justice Subba Rao in this case had consistency with the federal scheme under the Indian Constitution. The Indian Constitution undoubtedly accepts the federal concept and distributes the sovereign powers between the coordinate Constitutional entities, namely, the Union and the States. India, like Canada, constitutes an asymmetrical federation in the sense that some states have constitutionally guaranteed prerogatives setting them apart from the other states of the federation. However, in the case of India, rather unlike Canada, the affording of special status to a group or territorial entity never came easy 9. Article 370 expresses special provisions for the state of Jammu and Kashmir with respect to rest of India as per its instrument of accession. Also, there are special provisions for the states of Andhra Pradesh, Arunachal Pradesh, Assam, Goa, Mizoram, Manipur, Nagaland and Sikkim as

9 Patrick Hoenig “Federalism and identity in India”.

suspended by Centre and all the financial resources can be used by Centre to meet the emergency situation. Digressing a bit from the general federalism is the concept of Cooperative federalism, which is another class of a federal structure. This concept originated in the Australian Constitution as, there existed a felt need for a change from competitive to cooperative relationship in the working of the federal constitution. This modern view of federation regards federation as a functional arrangement rather than mere division of powers between Centre and State. Cooperative federalism suggests that the Centre and the States share a horizontal relationship and not the one in which one is over & above the other. There are three factors through which this trend is promoted, namely: (1) The exigencies of war when for national survival, national efforts takes precedence over fine points of Centre state division of powers; (2) Technological advances means making of communication faster; (3) The emergence of the concept of social welfare state in response to public demands for various social services involving huge outlays which the governments of the units could not meet by themselves out of their own resources^11. This concept helps the federal structure, with its divided jurisdiction to act in harmony. This basically promotes cooperation by minimizing tension among the various constituent governments of the federal union to pool their resources in order to achieve the desired results. In India there are some constitutional mechanisms as also some extra constitutional mechanisms to foster the spirit of Cooperative federalism. The constitution makers might have deliberately provided for such features in the constitution in order to ensure the smooth working of the government. Anyhow, irrespective of India being quasi-federal in its functioning and the way it is structured, it still incorporates some of the features which are essential for a federal arrangement. To pen down some of these features; Written Constitution

11 http://sanamurtaza.blogspot.in/2011/08/cooperative-federalism.html.

Any parliamentary constitution cannot be given the status of being a federal constitution because a written demarcation of division of power is necessary for smooth functioning of the Government. Providentially, India has a written constitution where the Central Government some of its powers with the respective State Governments.

Supremacy of the Constitution

This is another important point in the list of features which asserts that the constitution is legally binding on both the Central and State Governments. No State or even the Centre can change the provisions of the Constitution that are related to the power and status of the government to enjoy.

Rigidity of the Constitution

At third in the list features the concept of rigidity which allows no flexibility for a federal constitution. This is the substitute of outcome of Supremacy of Constitution. Supremacy of Constitution brings the rigidity to it.

Division/Distribution of Powers

This is the last one to feature in this broad list of essential elements. Distribution of powers is the fundamental and the most essential characteristics of the federation. The powers of State are divided into federal as well as unit governments at national and local levels.

The Seventh Schedule in the India Constitution lays down 61 items which are attributed to the State list upon which State Governments can make a law, whereas there is a Union list containing 100 items upon which only Union Government can make a law. This makes clear that there is a structure made to fit the federal essence but the powers are divided in such a way that it ends up being a quasi-federal state. It is unfortunately practically difficult to throw light upon each and every provision where distribution/ division of powers is evident and makes clear that India does not meet the federal requirements. Nevertheless, effort is made to impress upon every such element.

Bringing in picture the US Constitution, where the working of government is divided into two domains, namely the Federal and the State Governments. These governments are not subordinate to each other but are coordinated and independent within the scopes allotted

7. Conclusion.

To conclude, ‘Federalism’ is one of those good echo words that evoke a positive response toward many concepts as democracy, progress, constitution, etc. This form of government tries to facilitate the sociopolitical cooperation between two sets of identities through various structural mechanisms of ‘shared rule.’ But due to obvious reasons, center- state relations and the state autonomy have become the cardinal issues of the Indian federalism. The union government appointed Sarkaria Commission in 1983 to examine and review the working of the Indian Federalism, but this Commission didn’t make any useful recommendations for structuring the Indian federalism in a proper manner. The Union government also took in a very easy approach some of the recommendations made by this commission. This shows that even though our constitution is said to be federal, but this overemphasis on the power of the federal government makes incapable of dealing effectively with socioeconomic challenges and strengthening national unity. Hence, it is appropriate to restructure Indian Federalism to make it more effective and promote the Centre- state relationship 13.

13 “A debate on Indian Federalism” Concept of Federalism.

8. Bibliography.
   • Books. ▲ M P Jain, Indian Constitutional Law.
   • Statutes. ▲ Constitution Of India, 1950.
   • Websites. ▲ www.brtannica.com ▲ www.lawctopus.com ▲ indiankanoon.org ▲ www.scconline.com