Evolution and Philosophy of the Indian Constitution

I Evolution and Philosophy behind the Indian Constitution ...

I Evolution and Philosophy behind the Indian Constitution  Madabhushi Sridhar Three important questions bothered the man right from the beginning of the history of civilization. They are: 1. Is Government necessary? 2. What is the best form of Government? 3. How can we prevent the Government from becoming tyrannical? Answer to the above three questions is the origin of idea of constitutionalism and then the Constitutional law. The Constitution refers to that body of doctrines and practices which form basis for organizing a state. The human being, according to the great Greek Philosopher Aristotle, is a political and social animal. Either human being or a family cannot survive in isolation. It became necessary for man to organize himself into communities and societies. With the growth of population, these societies grew and multiplied and some form of rules and regulation was needed. Out of this need arose law and government. 2 Robert M MacIver, in the Web of Government , says that the same necessities that create the family create regulation. The existence of family requires the regulation of sex, the regulation of property, and the regulation of youth…here is government in miniature and already government of a quite elaborate character….family is everywhere the matrix of the government. MacIver explained the difference between the state and the government and the organ and organization in an effective expression: “When we speak of the estate we mean the organization of which government is the administrative organ. Even organization must have a focus of administration, an agency by which its policies are given specific character and translated into action. But the organization is greater than the organ. In this sense the state is greater and more inclusive than its government. A state has a constitution, a code of laws, a way of setting up its government, a body of citizens…when we think of this whole structure we think of the state… Under these endlessly varied circumstances the habits pertaining to government, which at first were centered in the family and kin-circle, found a locus in the inclusive community”.  Professor, NALSAR University of Law, Hyderabad 2 Robert M MacIver, The Web of Government, New York, Free Press, 1965, p 17 1  A written constitution is essentially a basic expression of the ideas and organization of a government that is formally presented in one document. Written Constitution is contained in one document, such as Soviet Union or Constitution of India or Swiss Constitution. Some constitutions are found in several documents, such as Canadian Constitution which include a “Constitution Act”, as well as several pieces of the legislation and historical documents. There are governments without constitutions, which are yet constitutional governments because they have limited governments, which can be called constitutional regimes. The British Government does not possess a document called ‘The Royal Constitution”. There are number of different documents that are part of the body of what is referred to as British Constitutional Law, including: 1. Magna Carta 1215 2. Petition of Right of 1628 3. Bill of Rights 1689 4. The Act of Settlement 1701 and 5. Certain special Acts of Parliament. What is Constitution? It is in short, a rule of book of a nation, codifying rule of law. Constitution is a legal document having a special legal sanctity, which sets out the framework and the principal functions of the organs of the government of a state, and declares the 3 principles governing the operation of those organs. Like every other Constitution, the Indian Constitution also seeks to establish the fundamental organs of government and administration, lays down their structure, composition, powers and principal functions, defines the inter-relationship of one organ with another, and regulates the relationship between the citizen and the state, more particularly the political relationship. The states have reasserted certain principles of law through written Constitutions. As a democratic Constitution, the Indian masterpiece also reflects the fundamental political values in substantive ways by guaranteeing Fundamental Rights to the citizens, and in procedural ways by providing remedies. It mirrors basic values about who shall govern, and in what direction. Constitution means the structure of a body, organism or organization, or we can also say, what constitutes it or what it consists of. Because the nation is one of the biggest in the would with most of varieties of the people and the cultures, India needs an expressly written code of governance, more specifically when the people chose to have different institutes, estates, mechanisms and levels of sovereignty. And thus we have the longest written constitution, which is one of the essential features of democratic federation. 3 Wade and Phillips -- Constitutional Law 14th Edn. P 1 2 Functions of the Constitution The Constitution is a political structure, whether it is written or not and followed or not. They have several functions. a) Expression of Ideology: it reflects the ideology and philosophy of a nation state. b) Expression of Basic Law: Constitutions present basic laws which could be modified or replaced through a process called extra ordinary procedure of amendment. There is a special law also which usually focus upon the rights of the citizens, for instance, rights concerning language, speech, religion, assembly, the press, property and so on. c) Organizational frame work: It provides organizational framework for the governments. It defines the functions legislature, executive and judiciary, their inter-relationship, restrictions on their authority etc. d) Levels of Government: Constitution generally explains the levels of different organs of the Government. Whether it is federal, confederal or unitary will be described by the Constitution. They delineate the power levels of national and provincial governments. e) Amendment provision: As it would not be possible to foretell all possibilities in future with great degree of accuracy, there must be sufficient provisions for amendment of the Constitution. It should contain a set of directions for its own modifications. The system might collapse if it lacks in scope for modification. Inherent capacity to change according to changing times and needs help any system to survive and improve. Soviet Constitution was mostly an expression of ideology and was less an expression of organizational set up. The American Constitution is more an expression of governmental organization and a guideline for the power relationship of the regime than an expression of the philosophy of the regime. What is Constitutionalism? One needs to know the ‘Constitutionalism’ and “Constitutional Law” before understanding the philosophy of Constitution of India. Having a Constitution itself is not Constitutionalism. Even a dictator could create a rulebook calling it Constitution, which never meant that such a dictator had any faith in Constitutionalism. Recognizing the need for governance, the Constitutionalism equally emphasizes the necessity of restricting those powers. The Constitutional law means the rule, which regulates the structure of the principal organs of the Government and their relationship to each other, and determines their principal functions. The rules consist both of legal rules enacted or accepted as binding by all who are concerned in 4 Government. All the Constitutions are the heirs of the past as well as the testators of the future. Constitution of Indian Republic is not the product of a political revolution but of the research and 4 Jennings -- Some Characteristics of the Indian Constitution, p. 56, 1953 3 deliberations of a body of eminent representatives of the people who sought to improve the existing 5 system of administration. Thus the Constitutionalism, in brief, is specific limitations on general governmental powers to prevent exercise of arbitrary decision-making. Unlimited powers concentrated in a few hands at the helm of affairs and their exercise would jeopardize the freedom of the people. These powers have to be checked and balanced with equally powerful alternatives in a system, where it will be nearly impossible for dictators to emerge. In one word ‘Limited Governance’ is the Constitutionalism, which is supposed to reflect in the Constitutional Law of a democratic state. Constitution of India is the Constitutional Law incorporating the Constitutionalism. The listed fundamental rights and guaranteed remedies, creation of judiciary as an impartial arbiter with all independent powers besides broad based legislative check on the executive are the reflections of such constitutionalism. From these essential characters the doctrines of judicial review, rule of law, separation of powers, universal franchise, transparent executive, fundamental right to equality and quality of life emerged and consolidated. At the same time, the rulebook has a responsibility to check anarchy and possibility of people misusing freedom to resort to violent means of overturning the constitutionally governing institutions. That responsibility is undercurrent in the reasonable restrictions placed on the exercise of fundamental rights of the people. The founding fathers of the Constitution made restrictions specific while the rights appear in general terms, paving a way for independent judiciary to expand the scope of freedoms and reading emerging rights into the sacred statements of rights under fundamental rights chapter. At the same time specification of restrictions operate as powerful restraints on the powers of the rulers. The right as the individual power in the hands of people and authority as the ruling power in the hands of institutions cannot go arbitrary and anarchic undermining the democratic peace. The democratic constitutionalism is three pronged in Indian Constitution, one- guaranteeing freedoms, two- restricting governing institutions, three- empowering the independent arbiter of judiciary with power to review the executive and legislative orders affecting the interests of people in general or afflicting basic norms of rule of law. Basic Philosophy Mr. Justice H. R. Khanna in his ‘Making of Constitution said: “The framing of a Constitution calls for the highest statecraft. Those entrusted with it have to realize the practical needs of the government and have, at the same time, to keep in view the ideals, which have inspired the nation. 6 They have to be men of vision, yet they cannot forget the grass roots”. A Constitution at the same time has to be a living thing, living not for one or two generations but for succeeding generations of men and women. It is for that reason the provisions of the Constitution are couched in general terms, for the great generalities the Constitution have a content and significance that very from age to age and have, at the same time transcendental continuity about them. …A constitution states, or ought to 7 state, not the rules of the passing hour, but the principles for an expanding future. 5 DD Basu, Introduction to the Constitution of India, p. 3 (3rd Edn. 1946) 6 Khanna, H R, Making of India’s Constitution, pp 1-2. 7 Ibid, p 3 4  The Indian Constitution is based on the philosophy of evolving an egalitarian society free from fear and bias based on promoting individual freedom in shaping the government of their choice. The whole foundation of constitutional democracy is building a system of governance in systematic machinery functioning automatically on the wheels of norms and regulations but not on individual whims and fancies. It is easy to dream such a system of rule of law than framing a mechanism for it. The Indian Constitution is a marathon effort to translate philosophical rule of law into practical set up divided into three significant estates checking each other exercising parallel sovereignty and non-egoistic supremacy in their own way. Apart from excellent separation of powers to avoid the absolute concentration, the Constitution of India envisages a distinct distribution of powers between two major levels of Governments- central and provincial with a fair scope for a third tier – the local bodies. However, the operation of the system came in contrast with men and their manipulations leading to different opinions and indifferent options. Whatever may be the consequential aberrations, the system of rule of law is perfectly reflected in framing of the Constitutional norms codifying the best governing mechanisms tested and trusted in various democratic societies world over. Preamble: The first Prime Minister of Independent India categorically presented the objective of the constitution in a lucid statement: “The first task of this Assembly (Constituent Assembly) is to free India through a new Constitution, to feed the starving people and clothe the naked masses and to 8 give each Indian the fullest opportunity to develop himself according to his capability ”. This nd resolve reflected in Resolution passed on the 22 January 1947 and inspired the shaping of the Constitution into a dynamic document. This resolution is the inner theme of the Preamble, which should be read, referred and remembered. We, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizen: JUSTICE-social economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; And promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation; IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION. The concept of “We the people…” being the source and authority for drawing up the Constitution was also taken from the US model and preamble begins with those words. Though the Constituent Assembly had legal power to enact the Constitution, the Preamble followed the 8 nd Constituent Assembly Debates, 22 Jan, 1947, Vol. II p 316 5 American example and claims that We the people of India, do hereby adopt, enact and give to ourselves this Constitution” and declared that objective of the Constitution were justice, liberty, equality and fraternity. Though there was broad mention of objectives in the Preamble, the framers chose to include detailed goals and objectives in Part IV entitled “Directive Principles of State policy” on the lines of Irish Free State, mentioning that they were not enforceable like Fundamental Rights. Preamble is a statement of objects, which are expected by the Constitution makers to be realized through the implementation of the Constitution. In Berubari Union and Exchange of Enclaves, AIR 1960 SC 845, the Supreme Court considered the preamble a key to open the mind of the Constitution makers. It is a guide to interpretation of the provisions of the Constitution. Preamble made it clear that Constitution emanated from the people of India and not from any external authority or any less authority than the people of India. Many Constitution experts and the Supreme Court stated that it is a conclusive assumption and a legal fiction, which cannot be tested or questioned in any court. Supreme Court held that the preamble was part of the constitution and it nd could be amended except the basic features in the Preamble. 42 Amendment inserted three "Secularism, Socialism and Integrity" in Preamble. As these concepts were already implied in the Constitution, the addition was not considered to be the amendment of the basic features. Dr. B.R. Ambedkar in his concluding speech in the Assembly stated that “Political democracy cannot last unless there lies at the base of it social democracy. What does social democracy mean? It means a way of life, which recognizes liberty, equality and paternity, which are not to be treated as separate items in a trinity. They form a union of the trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality; equality cannot be divorced from liberty. Nor can liberty and equality be divorced 9 from fraternity”. Constituent Assembly: A Sovereign Body The roots of the formation of the Constituent Assembly and the framing of the Constitution are relevant to understand its philosophy and evolution. The Constituent Assembly was formulated under the Cabinet Mission Plan prior to Independence. The elections to the Constituent Assembly were conducted under the system of separate electorate based on the community. After such an election too, it could not become a sovereign body. Thus its authority was limited in respect of the basic principles and procedure. The British Government brought it into existence in their process of conceding less and retaining the most of the authority with itself as counter strategy to the revolutionary raising. The Constituent Assembly was expected to work within the framework of the Cabinet Mission scheme alone. However, these limitations were removed by the Indian Independence Act, 1947 under which it was made free to frame any constitution it pleased. Evolution of the Constitution of India Dr. Rajendra Prasad was elected the permanent Chairman of the Constituent Assembly. It met on December 9, 1946. The Muslim League members were not understanding the reason and not 9 th Basu, D.D. Introduction to the Constitution of India, 18 Edition, p 24 6 agreeing to any viable proposition. The British Authorities were not in a mood to control or convince them. Thus in the initial days, the Constituent Assembly could not deliberate or decide any considerable thing. However, Jawaharlal Nehru moved the Objective Resolution on December 13, 1946 and that was passed on January 22, 1947. It was the expression to the ideals and aspirations of the people of India and so the objectives of the Constitution. These fundamental objectives guided the drafting members in framing a rulebook for the governance of the new nation. This ultimately became the very significant preamble of the Constitution of India. After the Independence the Drafting Committee was appointed by the Constituent Assembly in accordance with the decisions on the CA on the reports made by the various Committees. Dr. B.R. Ambedkar was appointed the chairman of the Drafting Committee consisting of Sir Alladi Krishnaswamy Iyer, K.M. Munshi, T.T.Krishnamachari, and Gopalaswami Ayyangar. Sir B.N.Rau prepared the original Draft on which the work of the committee was based. Several eminent personalities were elected to the Constituent Assembly through the indirect method of elections from the members of the Provincial legislatures. Infact, no prominent personality of the country was left out of the Assembly. The members include Jawaharlal Nehru, Rajendra Prasad, Sardar Patel, Maulana Azad, Gopalaswami Ayyangar, Govind Ballabh Pant, Abdul Gaffar Khan, T.T.Krishnamachary, Alladi Krishnaswami Ayyar, H.N. Kunzu, H.S. Gaur, K.V.Shah, Masani, Acharya Kripalani, Liaquat Ali Khan, Khwaza Nazimuddeen, Sir Feroze Khan Noon, Suhrawardy, Sir Zafarullah Khan, Dr. Sachchidananda Sinha. Except Gandhi and Jinna almost all prominent public figures figured in this August body. They were elected on a limited franchise. But they were also elected on adult franchise in the first general elections held in 1952. The draft Constitution was published in January 1948 and the people of India were given 8 months to discuss it and suggest changes. On November 4, 1948, the general discussions on the draft commenced in the Constituent Assembly and continued for five days. Then there was a thorough discussion clause by clause for about 32 days. As many as 7635 amendments were proposed and 2473 were actually discussed before a third reading was given for another 12 days. The Constitution of India was adopted and signed by the Chairman Dr Rajendra Prasad on November 26, 1949. The draft was considered for 114 days and the Constituent Assembly sat for 2 years 11 months and 18 days. Initially some important Articles came into existence, but the entire Constitution came into force from January 26, 1950. There is a criticism that the Constitution would have been adopted by means of a referendum as was done in Ireland. Several old members of the Constituent Assembly were elected to either Parliament or State Assemblies vindicating their contribution to the drafting the Constitution and accepting the principles enshrined therein. Glanville Austin wrote: “With the adoption of the Constitution by the members of the Constituent Assembly on November 26, 1949, India became the largest democracy in the world. By this act of strength and will, Assembly members began what was perhaps the greatest political 10 venture since that originated in Philadelphia in 1787”. 10 Glanville Austin, The Indian Constitution: Cornerstone of a Nation, p 308 7 Self-Government and Equality A reference to the history of British rule and Indian Independence struggle provide basic idea of self-governance that emerged into a people’s participative democracy. The last emperor of Moghul dynasty did not mind to delegate the civil administration authority to the East India Company, which was the first historic blunder that paved the way for the Company rule. The merchants who came for tea and other such things were granted not only the business rights but the revenue power to collect their dues from the clients. After some years the Company also could bargain power of administering justice within its colony and started applying the law of their own developing islands of their own sovereignty in India. This means the power of governance and the civil administration. Then imperialistic interests improved making it a sovereign with active support of the British Crown. When the officers of the company looted the innocent people and cheated the company too, the British Administrators realized that it was no longer good to leave the Indian nation in the hands of company and conveniently took over the reigns of governance. It encouraged the independent princely states if the princes subjugate to British, and if not, they won them over in battles fought by Indian born Crown soldiers backed by English captains. Till 1947 they tried to create several states within India and gave them all courage to opt out of acceding to Indian Union apart from inciting communal dissentions. Unification of scattered Indian states within the sub-continent was Herculean task, which made the present Indian Union possible after a violent partition into three pieces. The framers of the Constitution intended to secure the hard-won freedom with integrity and preferred a strong union within a federation, which otherwise appear contradictory. Mahatma Gandhi wrote in January 1922 under the caption ‘Independence” in his weekly, “Young India”: Swaraj, therefore will not be a free gift of the British Parliament. It will be expressed through an Act of Parliament is true. But it will be merely a courteous ratification of the declared wish of the people of India. This statement clarifies the doubts about ‘independent’ origin of Independence of India, if any. The Task: The Constituent Assembly became sovereign body after Indian Independence Act, 1947 was enacted and it was freed from limitations and restrictions imposed by British Parliament earlier under different Acts and plans. The sole task of the Constituent Assembly was framing of the Constitution for Independent India. The search for providing a legal frame and incorporating important systems relevant to India began. The framers looked forward to international documents, progressive democratic constitutions, and constitutional doctrines prevailing in Britain. It can be said in one word, what was finally adopted by the framers was British form of Government adapted to a Federal Constitution, as stated by the authority on the Constitutional Law of India, H.M. Seervai. The British has an unwritten unitary Constitution based on two fundamental doctrines: 1. Doctrine of supremacy of the Parliament 2. Cabinet form of Government with a Monarch as its head 8  What the framers drew from UK was the Westminster model of cabinet Government as the system to govern India, according to Supreme Court. This model increasingly demands a high standard of character and conduct from members of Legislative, Judiciary and higher Civil Service. Two world wars and consequential trials of war criminals before India achieved Independence marked the international scene. The horrendous thought of extermination of millions of people in gas chambers revealed in Nuremberg trials, war crimes, crimes against humanity, inhuman and barbaric violence over the civil population during wars and civil strife in partition which left a permanent scar reminded the humanity of the need for human life and dignity. Cruelties and infamies during Nazi regime influenced making of the Constitution. Part III with Fundamental rights was generated out of such human suffering and inspired by the Universal Declaration of Human Rights. Fundamental Rights were not included in earlier Constitution i.e., the Government of India Act 1935, because the British parliament was skeptical about the necessity of enshrining Fundamental Rights. The rights declared by UN were not enforceable. While incorporation of fundamental rights is significant aspect of the new Constitution, the framers deliberated a lot in importing the concept of federalism with changes suitable to Indian circumstances and diversity in unity, rather than unity in diversity. Federalism as a basic philosophy is accepted and provided in the Indian Constitution. The Cooperative Federalism, which is how the character of Indian Constitution was described, has evolved from conflicting situations and controversial background recorded by the history. Why Federalism? There are two levels of government above local level, with sovereignty in certain specific areas. The Central government will be having sole authority to coin money, raise an army and declare war, while intermediate level of government, i.e., states or provinces have sole authority to regulate education, criminal law, or civil law, citizens deal with both levels of government. Federal constitution provides for expression of regional goals and national objectives. It has a special advantage that the Federal Government can absorb some of the costs of new technology or programs that would have to be absorbed completely by member units in a unitary or con-federal government system. It can accommodate the aspirations and sovereign interests of different provinces with ethnic groups, linguistic characteristics. Federation is suitable to a plural society with multiple cultures and multiple language speaking populations. Federalism allows countries involved to maximize the growth and political strength, while at the same 11 time allowing the expressions of regional characteristics. In situations of large size, involving separation and divergence of communities the federation will be a useful and working system of government. Around 21 nations are federal in this world, which occupy largest part of the globe. While China is Unitary, other four big nations like, Canada, the United States, Brazil and Australia are the federations. The USSR was also a federation, till it had split into some smaller federations. Mexico, Venezuela and Argentina in Latin America; Nigeria in Africa; Switzerland Yugoslavia and Czechoslovakia (till it was split into nations) in Europe and India in Asia are the other federations. 11 Ronald Watts, New Federations: Experiments in the Commonwealth, Oxford Clarendon Press, 1966 9 Switzerland chose federal system as that suits its three language groups, German, French and Italian. It recognizes three official languages. Of the twenty two Swiss cantons, there are eighteen uni- lingual cantons, three bilingual cantons and one trilingual canton. The Swiss Constitution guarantees each citizen the right to communicate with the central government in any of the three official 12 languages. Germany also adopted the federal system. Instead of dividing the powers between the Bund (Central Government) and Lander (Member Units), the German Constitution provides for broad area of concurrent jurisdiction. The Upper House of the National Legislature, the Bundesrat, is 13 chosen by the Lander Governments and has an absolute veto over matters of ‘national’ concern. William Ricker has suggested a useful framework within which the many federal governments of the world may be measured. He has suggested that federations can be measured along a ‘centralized-decentralized’ dimension. The following minimum and maximum, illustrated in Figure may define this dimension. Minimum: The ruler(s) of the federation can make decisions in only one narrowly restricted category of actions without obtaining the approval of the rulers of the constituent units. Maximum: The ruler(s) of the federation can make decisions without consulting the rulers of the member governments in all but one narrowly restricted category of action. S t a t e s 1 Centralized % States 99% Decentralized (Maximum) -- -- -- -- - -- -- -- -- - -- -- -- -- - -- -- -- -- - - -- -- -- -- - -- -- -- -- - -- -- -- -- (Minimum) C e n t e r 9 9 % Center 1% Scale of Federalism The closer to the ‘minimum’ end of the scale a federal government is, the more it can be described as a peripheral federation’. The closer to the maximum of the scale a federal government is, the more it can be described as a centralized federation. Federalism: A Basic Philosophy Genesis of idea of federalism in India was first traced in Simon Commission, “Indian Statutory Commission” appointed in 1927. The Commission was meant for revision of the Constitution for India. In its report in 1930, the Commission recommended the evolution of India into “a federation of self-governing units”. 12 Ursula K Hicks, Federalism: Failure and Success New York Oxford University Press, 1978 pp 144-171 13 ibid. 10  The representatives of Princely States declared during the First Round Table Conference 1930-32) that they would join an “All India federation with a self-governing British India”. The White Paper embodying the report of Round Table Conference, in March 1933 was submitted to Joint Select Committee of Parliament, which preferred creation of “All India Federation”. By Government of India Act 1935, the background was ready for making India to become a federation with 11 Governor’s Provinces and 650 Native States, who supposed to have fifty per cent seats in Council of States. However, execution of the instrument of accession was the prerequisite to form the Federation, which could not become a reality. The Cabinet Mission Plan in 1946 contemplated the division of the country into three Zones, Zone A, Zone B and Zone C, based on the concentration of Hindus and Muslims. Zones B and C included Muslim dominated areas. The Center was supposed to be uniting point of these three zones, with its power confined only to Defence, Foreign Affairs and Communication. Constituent Assembly was to be divided into three sections according to the Zonal Scheme for evolving provincial and group Constitutions. The proposal of grouping of Provinces became point of dispute and disagreement, while in general; the Plan was acceptable to major political parties. The division of three Zones eventually resulted in the Partition as a precondition for Independence. While presenting the Partition scheme, Lord Mount batten insisted the major parties to agree for partition to have the federation with a strong center, instead of weak center as contemplated in Cabinet Mission Plan. Generally speaking, the CONFEDERATION is a system where the units dominate the Union, in Unitary State, the Union dominates the Units, and if Union and Units are co-equal it is Federation. In a Confederation, there will be an alliance between independent states where units can secede. In Unitary State the legislatures of Units derive power from Central Legislature. Vital feature of federation is division of legislative powers, each unit being sovereign in its own sphere. Dr B.R. Ambedkar used the term Union to make it clear that states had no right to secede from the Union to set themselves into separate States. He said that this Union was Federation and called it a flexible federation to say that it was not as rigid as the American Constitution was. However the expression Federation was not used deliberately. 14 In Keshavananda Bharathi case , the Supreme Court said that the federal character of the Constitution was its basic feature. In State of Rajasthan v. Union of India (AIR 1977 SC 1361) it was held that states could not assert any right based on the supposed federal character of the Constitution. Supreme Court said: “The Constitution is amphibian in sense that it can move either on the federal or the unitary plane. When action is taken under Article 356 the movement is on the unitary plane.” 15 In West Bengal v. Union of India the Supreme Court observed: ‘The Indian Union is not a true federation”. 14 AIR 1973 SC 1461 15 AIR 1963 SC 1241 11 Five Essentials of Federal Character: 1. The Constitution must be written 2. It must be rigid 3. It must be supreme law of the land 4. There must be division or distribution of powers between the Union or Federal Government and the various States or Provinces 5. There must be an independent and impartial judiciary to interpret the Constitution and the Laws. Thus, our India emerged as a federation getting relieved from the clutches of British Raj. Several princely states, which were divided and ruled, came together to form the Indian Union. The Center and Provinces of Pre-Independence days became Union and States with clear division of powers enlisted in three lists- Union, States and Concurrent Lists. Most of the federations in the world came into existence because of two or three independent states coming together. In India the process is reverse. Originally it was a vast unitary state with several provinces as administrative units. Indian federation was not the result of an agreement between the federating states. The Indian Federation was joined by the former Princely States, which later became the units of the federation. Several such states acceded to India and became full-fledged members of the Indian Union. When Constitution came into force the component units were grouped into four categories of States. By a gradual process the reorganization of States took place, which continued up to the close of 1969. In 1969 Twenty Second Amendment to the Constitution was passed. State of Jammu and Kashmir had been accorded a special position in Indian Union. In Sardar Patel’s words: “…the first requirement of any progressive country is internal and external security. Therefore I started planning on the integration of the country……It is impossible to make progress unless you first restore order in the country. Maulana Azad in one of his notes in 1948 referred, inter alia, to a demand gathering strength for linguistic states and observed that the only was of maintaining Indian solidarity was to give a commanding position to the Center in the new Constitutional set up. Indian National Congress was advocating for a strong center from the beginning. In fact, the Cabinet Mission Plan which resulted in weak center proved to be a disaster as the country was bifurcated. Ambedkar said that the Indian federation was a “Union” because it was indissoluble, and no state had a right to secede from the Indian Union. He said: The Drafting Committee wanted to make it clear that though India was to be a federation, the federation was not the result of an agreement by the States to join in a federation, and that the federation not being the result of an agreement, no State has the right to secede from it. The federation is a Union because it is indestructible. Though the country and the people may be divided into different states for convenience of administration, the country is one integral whole, its people a single people living under a single imperium derived from a single source. The Americans had to wage a civil war to establish that the States have no right of secession and that their federation was indestructible. The Drafting Committee thought that it 16 was better to make it clear at the outset rather than to leave it to speculation or to dispute. 16 Khanna, H R, Making of India’s Constitution, EBC, pp20-21 12  Strong Center to secure the nation The founding fathers of the Constitution felt a need for a strong Center because of prevailing social economic and political conditions. Ambedkar said in the Constituent Assembly: “The Indian Constitution is a federal Constitution in as much as it established what may be called a dual polity which will consist of the Union at the Center and the States at the periphery each endowed with sovereign powers to be exercised in the field assigned to them respectively by the Constitution”. However, he asserted that the Indian Constitution avoided the tight mould of federalism in which the American Constitution was caught, and could be both unitary as well as federal according to the requirements of time and circumstances. We the people of India, opted for a federation in which Center was to be very strong and which has in-built mechanism to convert the Constitution into a unitary Constitution in certain circumstances and situations is crystal clear from the various provisions of the Constitution. Each and every regional government of the country is independent each of the other within its sphere. However it is called “cooperative federalism” as the states are expected to cooperate with each other. Thus the Indian Constitution had been cast in a mould of its own. It is certainly federal in so far as it assigns different, distinct and independent legislative fields to the Union and State governments, and in so far as it has in-built mechanism of converting the federation into a unitary system, it is typically Indian model. Federation, a model: Among the models available before the Constituent Assembly, the US Constitution was very important document on Federation, the Acts prepared by the UK Parliament prescribing Constitutions for Canada, Australia and India and Bill of rights introduced in US through ten amendments. Executive: The framers adopted British model of Executive. The Executive is responsible to Legislature in Canada and Australia and that was the concept in Government of India Act 1935 also. Framers did not hesitate to adopt the same. President: The name for the Head of the Nation, i.e., the President, was drawn from US model, while position, functions and powers of the President were almost similar to those of the Head of the Britain, i.e., Crown. Vice President: The name and nature of Vice President’s office was also drawn from US Constitution, where Vice President holds the position of ex-officio chairman of Second Chamber. Framers adopted the system of parliamentary executive in preference to the Presidential System of US. 13 Separation of Powers: A renowned Constitutional expert, authority on Constitution of India, and an Advocate, Mr. H.M. Seervai removed the common misconception by stating that the machinery of Government set up by our Constitution follows in essentials the British and not the American model. He says: The doctrine of separation of powers and the doctrine that legislatures are the delegates of the people which are basic doctrines of the US Constitution do not form part of the Constitution of Great Britain or the Constitution of India. Our Constitution has rejected the presidential form of Government, that is, of an executive independent of, and not responsible to, the legislature, and adopted the British model of Government by a Cabinet, that is, of an executive responsible to, removable by, the legislature. (Articles 74, 75 for Union Executive and Arts. 163,164 for State Executive)……The President is the formal head of the 17 Government and has to act on the advice of the Cabinet like the Crown in Great Britain. Legislature: 1. Predominant Position: The Constitution conferred on the House of the People, and on the Legislative Assemblies of each State, the predominant position. 2. Privileges: Though it is not as supreme as that of UK Parliament, the Parliament in India also enjoys a superior status in terms of privileges of the British House of Commons at the commencement of the Constitution. (Arts. 105 and 194) 3. Procedure in respect of finance, the provision for consolidation fund, the scrutiny and supervision of Union and State public accounts by an independent Comptroller and Auditor General of India, are on lines of British system. Judges: The appointment of judges of Supreme Court and High Court and the appointment of subordinate judiciary is also on the lines of British model and not the American model. The judges hold the office till a slated age and that they can be removed only by a process of impeachment. The position of Judges of SC is same in US England and India. In England and India, the judges are not elected like in many states of US. Legalism & Rigidity: The following requisites of federalism brought in the legalism and rigidity to the federal structure of the Constitution. 1. A Written Constitution. 2. Concept of Ultra vires, empowering the Courts to declare the law as ultra vires, which makes federalism to give rise to legalism. 17 Seervai, the Constitutional law of India, Vol 1, Fourth Edition, p 159 14  3. Powers of Federal Government lack flexibility for they are limited by the terms conferring the powers, which can be enlarged only by amendment to the Constitution. Legalism and rigidity are inevitable consequences of federalism. Rigidity is an inherent defect in Federalism and the unavoidable price of federal union. Method of distribution of powers given in detail was hoped to mitigate the rigidity and legalism of a federal constitution. Minimising the Rigidity: Dr, Ambedkar listed out various ways adopted to minimise the rigidity and legalism of 18 federal constitution 1. The distribution of legislative power between the Union and the States which gives to the Union exclusive power to legislate in respect of matters contained in List I, and a concurrent power to legislate in respect of matters contained in List III of Schedule VII (Article 246) 2. The power given to Parliament to legislate on exclusively State subjects, namely, a. with respect to a matter in the State List in the national interest Art. 249 b. in respect of any matter in the State List if a proclamation of emergency is in operation Art 250. c. For two or more States by consent of those States (Art. 252) 3. Provisions for proclamation of emergency and the effect of such proclamation (Art 353 and 353. 4. Provisions included in the Constitution which are to be operative “unless provision is made to the contrary by Parliament by law” or words to the same effect. 5. Provisions regarding the amendment of the Constitution. Residue Powers: 1. In the United States Constitution, “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.” (The Tenth Amendment to the Constitution) The powers are thus mutually exclusive and it was left to judicial interpretation to imply a limited field of concurrent legislative action. In Australia, the residuary powers are reserved with States, but the enumerated powers of the Commonwealth are not exclusive so that there is a large field of concurrent legislative action. Canadian Constitution gave residuary powers to the Dominion. It contained double enumeration of exclusive legislative powers. The Government of India Act 1935 gave exhaustive lists of power- List I- Federal, List II Provincial, and List III concurrent Legislative Lists. Article 246, and Schedule VII gave Parliament a very wide field of exclusive legislation and a substantial field of concurrent legislation to mitigate the rigidity and legalism inherent in federalism. 18 (Constituent Assembly Debates, Vol VII, p 34.). 15 Conflict between Federal Law and State Law: In the United States, Canada and Australia it is well settled that in any irreconcilable conflict between a valid federal law and valid State law the federal law will prevail and the State law will be void to the extent of its repugnancy to the federal law. The paramountcy of federal law was generally provided in GI Act 1935. Section 107 provided flexibility in the exercise of concurrent legislative power where law made by provincial legislature will prevail over earlier Federal law with certain conditions and limitations. Article 254 conferred on Parliament the power to repeal a State law made in exercise of concurrent legislative power. With regard to taxation power also independent and exclusive lists were made in GI Act, which was adopted by the Constitution. It avoided overlapping powers of the taxation. The Constitution has taken over the principle of exhaustive enumeration of legislative subjects in the three legislative lists with beneficial results. Article 248 gives residuary powers to the Union. Flexibility in working of Federation 2. Article 249 is a well-drafted provision intending to secure greater flexibility in working the federation. The States have exclusive power to legislate on matters contained in the States List. Article 249 provides for a situation where the national interest requires that Parliament can legislate on a subject in the State List only if Council of States resolves by 2/3 majority that it is necessary in the national interest. Such a resolution remains in force for one year and can be extended beyond. The law passed in pursuance of such resolution ceases to have effect after six months. It is meant to deal with temporary situation. Articles 250, 352 and 353 confer power to issue a proclamation of emergency, after which Parliament can pass laws for a State in respect of the matters contained in the List II. This power has to be exercised by the President of India and requires the approval of both Houses. Dr Ambedkar says that these provisions made the Indian Constitution both Federal and Unitary. In normal times it is framed to work as a federal system. But in times of war it is so 19 designed as to make it work as though it was a unitary system. There is no such provision in the Constitutions of United States, Canada and Australia. However same result is arrived by the judicial interpretations in those three countries. GOI Act 1935 gave express power in times of war to the federal government to legislate even on subjects of exclusive provincial legislation. Emergency Provisions: Inclusion of “internal disturbance” in Section 103 of GOI Act, 1935 was questioned on the ground that it was aimed at Freedom Movement. That word found its place in the Constitution also. th This is the expression used for imposing Emergency on 26 June 1975. This was replaced later by “armed rebellion”. Two or more states can empower the parliament to legislate on state subject under Article 252. Similar powers were available under GOI Act, 1935 (S. 103). However, the law passed under Article 252 by Parliament, cannot be amended by state legislature. Article 252 provides another flexibility in the working of federal government. 19 Constituent Assembly Debates Vol VII pp 34-35 16 Union's Power to Legislate on State Subjects: The power of Chief Executive in the Union to legislate on State subjects through ordinance and power of the Union when the constitutional machinery failed in States are other two aspects drawn from the GOI Act, 1935 (Section 42). Article 123 empowers the President to promulgate ordinances during the recess of the Parliament, and Article 213 gives similar power to the Governor in the States. Powers under Article 356 are also found under GOI Act, (Section 45), wherein the Federal executive takes over the administration when the constitutional machinery failed in the state. Restrictions on Trade: Section 297 of the Act of 1935 prohibited certain restrictions on internal trade and thus secured freedom of inter-State trade and commerce by providing no provincial legislature or government shall have power to pass any law or take any executive action prohibiting or restricting the entry into or export from a province of any goods or class of goods and by prohibiting discriminatory taxation on goods manufactured and produced outside a province. Thus Government of India Act, 1935 furnished a model, which with some alterations could be adopted by the drafting committee relating to inter-State trade and commerce. But, Seervai says, the framers preferred to borrow Section 92 of the Australian Constitution and couched Article 301 in similar language giving freedom of trade and commerce. Amending Provisions: Government of India Act 1935 was not provided with amending provisions because that power was retained by the British Parliament itself. Any Constitution without provision for Amendment will become extremely rigid. The US constitution and Constitutions of other federations made provision for Amendment. Article 368 provided for amendment. Constitutions of Canada, Australia and GOI Act 1935 did not provide for citizenship, because there was no need. All the citizens of these countries were subjects of United Kingdom and thus were having common citizenship. Indian Constitution provides for single citizenship throughout the country. American Example of dual citizenship, namely, a citizenship of the United States and a citizenship of individual state was not followed in India because the provinces of India were not separate states with constitution of their own. The US Constitution provided for establishment of dual agencies for carrying out federal and State laws, such as federal courts established in each State and a federal executive operating in each state to enforce federal laws. In the Constitutions of Canada, Australia and in the GOI Act 1935 also such a provision existed. But in these countries Federal Agencies have not come into existence. So is the case with our country too. The Constitution of India provided for such power but in fact this power has not been exercised. Fundamental Rights: Great philosophers Locke and Adam Smith and Mill believed that social harmony and progress were compatible with reserving a large area for private life over which neither the State nor 17 any other authority must be allowed to trespass. Hobbes stressed the need for centralized control and decrease that of the individual. But both the sides agreed that some portion of human existence must remain independent of the sphere of social control. To invade that preserve, however small, would be despotism. Jefferson, Burke, Paine and Mill stated that we must preserve a minimum area of personal freedom if we are not to ‘degrade or deny our nature’. We cannot remain absolutely free, and must give up some or our liberty to preserve the rest. But total self-surrender is self-defeating. Since justice demands that all individuals be entitled to a minimum of freedom, all other individuals 20 were of necessity to be restrained, if need be by force, from depriving any one of it. This is the philosophical basis for freedoms and the restrictions over it, which appear in appropriate equilibrium in Indian Constitution. The inclusion in the Constitution of a distinct part guaranteeing Fundamental Rights can be traced to the forces that operated in the struggle for independence during British Rule. As early as 1895 Bill, which was described by Mrs. Annie Besant as the Home Rule Bill, was introduced which envisaged a Constitution for India guaranteeing to every citizen freedom of expression, inviolability of one’s house, right to property, equality before the law and in regard to admission to public office, the right to present claims, petitions and complaints and right to personal liberty. In August 1918 Indian National Congress soon after he publication of the Montagu-Chelmsford Report, made a demand that the new Government of India Act should declare the rights of the people of India as British Citizens. The Constitution of the Irish Free State in 1921 which included a list of Fundamental Rights also made a lasting impression on the Indian leaders. The Commonwealth of India Bill finalized by the National Convention in 1925 contained specific declaration of rights visualizing for every person in terms practically identical with the relevant provisions of the Irish Constitution specifying fundamental rights. Simon Commission Report in 1930 did not support the demand for enumeration of Fundamental Rights in the Constitution Act on the ground that abstract declaration of such rights was useless there existed the will and means to make them effective. In March 1931 Indian National Congress Karachi session reiterated demand for a written guarantee of Fundamental Rights as essential in any future Constitutional set up in India. The Joint Select Committee of the British Parliament on the Government of India Bill of 1934 did not favour this demand. Thus the Government of India Act 1935 did not enumerate the Fundamental Rights. The Sapru Committee appointed by the All Parties Conference during the year 1944-45 expressed the view that Fundamental Rights should be expressly guaranteed. The British Cabinet Mission Plan of 1946 envisaged the setting up of an Advisory Committee for reporting, inter alia, on Fundamental Rights. The Constituent Assembly has debated every fundamental right and developed the text of the significant Part II. The American Bill of Rights declared rights in terms almost absolute, leaving it to the courts to impose restrictions over them based on some doctrines. However Indian Constitution provided a new fundamental right under Article 32, namely the right to move the Supreme Court for enforcement of Fundamental Rights. Existence of Fundamental Rights chapter along with enforcing Articles, Seervai says, is not a feature that distinguishes the Indian Constitution from British, Canadian and Australian Constitutions, and it does not resemble the US Constitution. Doctrine of Ultra vires is not applicable 20 Khanna H R, Making of India’s Constitution, pp 30-31. 18 to the Acts made by the British Parliament, but applied by the English courts to subordinate bodies constituted by Statutes or Charter, and the Privy Council considers the validity of laws made in colonies. There is English Bill of Rights, 1689 also which declares the basic freedoms which Englishmen claimed for themselves. The Fundamental Right under Article 32 is not different from the other rights conferred by the Constitution. The well known English Writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto are essential components of judicial review power, which was stated in express terms under Article 32 and 226 and thus the origin of these Articles could be traced in English writs, which were exercised for centuries by the Court of Queen’s Bench. Thus Seervai says that no new jurisdiction is created by Constitution of India. State Legislature: Seervai also points out another major difference between US and Indian Constitution, while the former provides Constitution only for the Federation, the Indian Constitution provides for Center and States also. In US the legislatures of the States are considered to be the delegates of Federation, whereas the British Parliament never envisaged such a concept. The State legislatures were as supreme and sovereign as British Parliament, which is accepted as the rule in Constitution of India also. The doctrine of immunities of instrumentality evolved by the US Supreme Court, the doctrine of police powers and the doctrine of the political question have no place in our Constitution. For our Constitution is a detailed and an elaborate document containing provisions as regards the power of executive and judiciary, and for distribution of legislative power also. US Constitution is a very brief document which declares rights in wide general terms leaving it to the judiciary to evolve exceptions and qualifications to those rights, which were clearly incorporated as the restrictions over declared rights in the Constitution itself. Distribution of Powers: Generally in a Federation the concept is that both the Union and State are equally sovereign and supreme. The principle of distribution being that the powers in matters of national concern and matters where uniformity of laws throughout the country is desirable to the Union and powers in matters concerning the state or local interest being given to the State. There are two forms of distribution. One- enumerated powers are given to the Union and residuary power to States as in the US and Australia. Two-enumerated powers are given to the States and residuary powers being given to the Union as in Canada. India, that is Bharath… The First Article of our Constitution says, “India, that is Bharath, shall be a Union of States.” Wade and Philips defined the Constitution as a document having a special legal sanctity which sets out the frame-work and the principal functions of the organs of the Government of a State and declares the principles governing the operation of t hose organs. It is a rulebook for a nation. th A new republic came into force on 26 January 1950 on which day the Constitution of India has come into existence. Then the debate about the character of our Constitution started. Is it a Union or Federation? 19  India emerged as a federation getting relieved from the clutches of British Raj. Several princely states, which were divided and ruled, came together to form the Indian Union. The Centre and Provinces of Pre-Independence days became Union and States with clear division of powers enlisted under three lists- Union, States and Concurrent Lists. Most of the federations in the world came into existence because of two or three independent states coming together. In India the process is reverse. Originally it was a vast unitary state with several provinces as administrative units. Indian federation was not the result of an agreement between the federating states. The Indian Federation was joined by the former Princely States, which later became the units of the federation. Several such states acceded to India and became full-fledged members of the Indian Union. When Constitution came into force the component units were grouped into four categories of States. By a gradual process the reorganization of States took place which continued up to the close of 1969. In 1969 Twenty Second Amendment to the Constitution was passed. State of Jammu and Kashmir had been accorded a special position in Indian Union. Ambedkar said that the Indian federation was a “Union” because it was indissoluble, and no state had a right to secede from the Indian Union. A strong Centre The founding fathers of the Constitution felt a need for a strong Center because of prevailing social economic and political conditions. Ambedkar said in the Constituent Assembly: “The Indian Constitution is a federal Constitution in as much as it established what may be called a dual polity which will consist of the Union at the Center and the States at the periphery each endowed with sovereign powers to be exercised in the field assigned to them respectively by the Constitution”. However, he asserted that the Indian Constitution avoided the tight mould of federalism in which the American Constitution was caught, and could be both unitary as well as federal according to the requirements of time and circumstances. We the people of India, opted for a federation in which Center was to be very strong and which has in-built mechanism to convert the Constitution into a unitary Constitution in certain circumstances and situations is crystal clear from the various provisions of the Constitution. Each and every regional government of the country is independent each of the other within its sphere. However it is called “cooperative federalism” as the states are expected to cooperate with each other. Thus the Indian Constitution had been cast in a mould of its own. It is certainly federal in so far as it assigns different, distinct and independent legislative fields to the Union and State governments, and in so far as it has in-built mechanism of converting the federation into a unitary system, it is typically Indian model. There is an eternal debate about the character of the Constitution- is it Federal or Unitary. Parliament decides the fate of States Article 3 empowers Parliament to abolish or create States and therefore, it is argued that the very existence of States depends upon the mercy of Parliament. Parliament also can change the boundaries of the States. There are high emergency provisions in favour of the Centre, which negate the federalism. At the same time, the very fact that these provisions are of temporary nature and Emergency which is 20 also known as President’s Rule cannot be perpetrated for long, strengthens the argument that Indian Constitution is a federation. Whereas the Articles 256,257 read with Article also establish that it is not a federation. Articles 249 to 253 empower in some special circumstances Parliament to legislate on the subjects of State List, which goes to say that it is non-federal. There is another opinion that it is a quasi-federal constitution and contains more unitary features than federal. The other view is that it is a federal constitution with a novel feature of getting more powerful in national emergencies. The framers of the Constitution view it as Federal Constitution. Ambedkar said: “I think it is agreed that our Constitution not withstanding the many provisions which are contained in it whereby the Centre has been given powers to override the Provinces non the less, is a Federal Constitution.” Federal Features: 1. The first characteristic of federation is distribution of powers among the centre and states with matters of national importance being entrusted with the Union, and matters of local concern remain with the States. 2. Every individual or the institution or system derives power from the Constitution, which is supreme. 3. The written constitution is another feature of federation. Foundations of federation lies in the complicated terms reduced into writing. 4. Once it is written it is expected to be rigid. In a rigid Constitution the process of amendment is difficult. Constitution is a permanent document. It is supreme law of the land. Amending it is not impossible, but difficult. 5. To maintain the division of powers between two levels of the Government, an independent and impartial authority above all the ordinary bodies, the judiciary is established. The judiciary has the final power of interpretation of and guarding the provisions of the Constitution. Unitary Features: 1. The union appoints its agents as Governors for the states, in whose name the entire administration runs. They are answerable to the President. 2. Parliament has power to legislate for the states in national interests. 3. The Union decides the fate of the states. Parliament can form new states and alter boundaries of existing states. 21 4. The Constitution gives more powers to the Union during emergencies. There are three types of emergencies. 1. Emergency caused by war or external aggression, 2. Emergency caused by failure or constitutional machinery of the states. Emerging into a “Cooperative Federation” Single citizenship, All India Civil Services, Unified Judiciary, single Election Commission, the Finance Commission, and the Planning Commission also establish the unitary character of our constitution. Indian Constitution is not laissez faire federal Constitution. Paras Diwan, an eminent law writer said in his “Indian Constitutional Law at page 6: “It is essentially a cooperative federation, where two sets of governments are not antagonistically independent of each other but coordinate, cooperate and collaborate in each other’s efforts “to secure to all its citizens justice, social, economic and political, liberty of thought expression, belief, faith and worship: equality of status and of opportunity: and to promote fraternity assuring the dignity of the individual and the unity and integrity of the Nation.”(Preamble of the Indian Constitution) 21 Paul Appleby calls the Indian Constitution as extremely-federal. The so called autonomy of the states appears to be a myth or practically impossible in certain circumstances. The biggest threat to the autonomy of the states is the provisions like Article 356. The Sarkaria Commission which probed into the centre and state relations suggested exhaustive measures to improve the state autonomy and strengthen the cooperative federalism, the basic concept of our constitution. With the advent of regional parties gaining popularity with their relentless fight against the misrule by Central Governments ignoring the needs of some states, the demand for more powers increased. The unitary features of the Constitution are coming under the constant attack from the states, which are asking for more share in tax revenue and legislative powers. List of Powers Generally in federal Constitutions, which follow the American model, enumerate a list of legislative powers for the Union and leave the residue to the States. The Canadian Constitution followed a different pattern. There are two lists of legislative powers, one for Centre and the other for the Provinces and the residue is vested in the Centre. Indian Constitution followed the Canadian Federal model. The Concurrent list is the idea borrowed from the Australian pattern of federal division of powers. In Government of India Act 1935, a similar division of power was envisaged. These three lists are found in Seventh Schedule. It consists of two elaborate lists for Union and States and an additional list called Concurrent list, regarding which both the Union and States can legislate. The Parliament and State legislatures both have concurrent power of legislation over the items included in this list. So as long as the Parliament does not pass a law on any of these items, the state may pass any law they like on the same. But once the Parliament does enact a law on such items, Parliamentary law shall prevail over any state law in this regard. There is one exception to this general rule. If a state legislature pass any law on an item in concurrent list, a later point of time, it will prevail over an earlier law of the Parliament on the same subject, if the state law was reserved for the consideration of the President or received his assent. This is the original feature of our 21 Public Administration in India, Report of Survey (1954), 51. 22 constitution, which enables a State to pass a more advanced piece of legislation than an existing Parliamentary law, or to provide through a new law with the consent of the Union, to suit the special conditions or circumstances prevailing in that state. There are several unique features of Indian Constitution, which made it a distinctive federation. Absence of dual citizenship, Constitution being a single constituent authority to include the powers and functions of both center and states, several express provisions which minimised the rigidity and legality of federal nature, making the state unitary during emergency, unity despite separate existence of center and state with distinct powers, absence of rivalry between center and states are some of the peculiar features of Indian constitution, which justify the description of distinctive federation. Constitution making is a continuous process. Evolution of the Constitution does not stop with making of a Constitution. It in fact begins with that. Subsequent changes and amendments, dynamic consequences of observance and breach of those provisions, judicial interpretations in live examples offer new colours and deep insights to fill spirit in dry letters of the Constitution. Every significant judgment along with a political development presents the Constitution from an unseen angle and through a different light altogether. Seventy Third and Seventy Fourth Amendment to the Constitution is one such landmark. Continuous evolution and evaluation of Constitution The Seventy-third and Seventy-fourth amendments to the Constitution in 1992 have fortified the third tier of the governance, i.e., and local bodies like Panchayats and Municipalities. This amendment did not alter the relationship between the center and states, but tried to create a strong representative polity at third level. It is an encouraging federal tendency. Second important development is evolution of several procedural curbs on the powers of center under Article 356. Judicial legislation on this aspect emphasizes that the polity under Indian Constitution is basically federal, and center cannot frequently interfere with the administration at the state by resorting to demolition of elected government on political reasons. S. R. Bommai case and executive actions of the President in sending back the resolution of the Cabinet for imposition of president rule in UP are some more developments which strengthened the federal character of the constitution. Besides this the dynamic politics of the nation necessitated political alliances forming the Government in association with different splinter groups rather than cohesive political parties, each forming into a strong lobby or pressure group which reflect diversity of interests, view points and variety of practical restrictions on exercise of power by the persons occupying top executive positions. The power center has to inevitably heed to the opinion emerging from a relatively small group, which also possessed the power to pull down the Government. By new millennium the federalism and democratic dynamics could be found in coalition politics of India both in ruling and opposition. 23 Nature and Characteristics of Indian Federalism: Ivo D. Duchacek has drawn a model to explain the nature and characteristics of the Indian Federalism, and analysed the links between two spheres of seemingly exclusive jurisdiction. He classified these links under two broad categories. They are (I) the Constitutional overlaps and (II) 22 Extra Constitutional overlaps. Constitutional overlaps: 1. The 'Elastic Clause' 2. Constitutional authorization for federal supervision of local execution of national laws. 3. The right to insure the republican or democratic form of government. 4. Emergency powers in case of invasion or insurrection. 5. War and foreign policy powers. 6. Concurrent powers. 7. Dependence of the central authority on the State government, in such things as state control of national elections, control over the upper chamber, and local administration of national programs. Dependence of the Central Authority on the components also includes the 23 possibility of blackmail, implied in the Constitutional grant of the right of secession. 1. Elastic Clause: There is distribution of powers through three lists among the center and states. If the Union law trenches upon the State subjects or vice versa, the courts apply a principle of interpretation known as the "Doctrine of Pith and Substance". This doctrine validates the law despite the entrenchment into the domain of one by another. It proves the elastic nature of powers. 2. Constitutional Authorization for Federal supervision of local execution of national laws: Article 256 says that every state has to exercise its executive power so as to ensure the compliance with the laws made by the parliament and any existing laws which apply in that state. To do this, union executive can give directions to a state as it finds necessary for that purpose. Thus the state has an obligation to comply with the law of parliament and union can issue directions for that purpose. This serves a dual purpose, that the state law shall always comply with the Union law and that in execution of the laws the Union can issue directions to the state. Article 257 also deal with the control of the Union over states. Article 258 empowers Union powers on states. Failure to comply7 with these directives may lead to imposition of President Rule under Article 365. Articles 339(2), 344(6) and 350A authorise the President to issue certain directions to the states to get certain specific things to be given effect to. This aspect has direct impact on the nature of Indian federation itself. 22 Ivo D Duchacek, Comparative Federalism, Holt, Rinehart and Winston, inc, New York, 1970, p 278.) 23 ibid. 277 24 3. Right to insure Republican or Democratic form of Government: Preamble says that India is Republic and democratic. In Keshavananda Bharathi case it was held that democratic and republican form of government form part of basic structure of the constitution and thus cannot be amended. 4. Emergency powers in case of invasion or insurrection: Article 352 refers national emergency. Armed rebellion has been substituted for 'internal th disturbance 'by 44 amendment so that emergency cannot be imposed for 'internal disturbance'. This Article gives sweeping powers to the Union in case of emergency. There is an obligation on the Union to protect the states against external aggression or internal disturbance, as per Article 355. Under Article 257-A assistance to states by deployment of armed forces or other forces of the Union th was also possible. This provision has been however, omitted by the Constitution 44 Amendment in 1978. Even in the absence of such a provision there is definitely an obligation on part of the Union to do so in terms of Article 355. Thus Indian Constitution would satisfy this overlap also giving the power in favour of the Union Government at the time of such emergencies or insurrections. 5. War and Foreign Policy Powers: These powers are exclusively with the center. Art 352 empowers the Union to impose emergency and give sweeping powers. States cannot question or raise objection till normalcy is restored. Depending upon the nature of emergency the extent of power would also vary. The power of the Union Government during such emergencies of war is provided under Article 246 read with Entries 1 and 2 of List I to Schedule VII which speak about the Defence of India. Article 246 read with entries 10,11,12,13,14,15and 16 of List I of Schedule VII contain the powers of foreign policy entrusting exclusively to the Union. Article 253 empowers the Parliament to make any law for the whole or any part of the country for implementing any treaty with other countries or any decision made at any international conference. Thus in these two areas the Union has absolute powers. 6. Concurrent Powers Concurrent list provides scope of legislation for both Union and Center. Article 254 plays key role in interpreting the three lists. In case of conflict the law made by parliament will prevail over the state law [254(1)]. If the State law on subject listed under concurrent list, is reserved for the consideration of the President by the Governor under Article 200, and has received assent from the President then the State law shall prevail over the Central law in that state alone. Nothing in this article shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to or amending, varying or repealing the law made by state. [exception provided under 254(2)] 7. Dependence of the central authority on the States for local administration of national programmes: The Union has to depend on states for national elections, local administration and national programmes. Article 324(6) imposes an obligation both on the President and the Governors of states to make available such staff as necessary for the discharge of the functions conferred on the Election 25 Commission. Under Part XI, Chapter II provides the frame for Administrative relations (Art 256- 261) with regard to local administration of national programmes and policies. In the implementation of national policies also the Union can issue directions and if these directions are ignored, the Union government can go to the extent of removing the governments under Article 356. These seven overlaps, which are present in the Indian constitution, prove that the Union Government is more powerful than federal units. Extra Constitutional Overlaps: A) Economic and social imperatives such as economic planning, technological innovation (atomic energy, computers, and other costly projects calling for national financing and controls), Social Welfare Programmes and the growth of large national organizations that cut across the territorial divisions, such as manufacturing corporations, insurance companies, banks, labour and farm organizations and mass media. They all challenge the intra-federal boundaries ("the worst inanities" as Morton Grodzins called the boundaries of American States) that had been drawn in earlier eras and that cannot be justified on any grounds of rational efficiency. Planning Commission and National Development Council are extra constitutional bodies which eroded the powers of the states. The projects like atomic energy and other costly enterprises have to be funded by the center and regulated by it. Railways, Airways, waterways, Public Corporations and companies, Banks, Insurance companies, mass media organizations like AIR and Doordarshan are under the control of central authority. But the privatization of these institutions have reduced the control of the Union authority over it and private persons are playing key role by manipulating these organizations B) Population shifts, especially the growth of big cities, the emergence of new regional territorial communities regardless of state boundaries, or emergence of new territorial communities within the existing state boundaries. Interstate travel and migration of people from one state to another state created multi-linguistic groups all over the country. Because of this states formed on the basis of language has lost their significance to some extent. C) External pressures (threats and opportunities) that result in further extension of the federal powers. Three wars that India fought after independence increased the power of the center. Central authority and command over external affairs and relations with neighbours, increase the importance and power of the Union Government. Political culture and political parties whose orientation, structure, and changing leaders may have a profound impact on the reality of federalism.(ibid, 279) When there was single party rule in center and states, the power of Union Government was enormous and the federal polity has been totally undermined. Only after the advent of regional parties or due to raise of non-congress parties the situation changed. With the advent of coalition politics, there is some sort of federal character visible in the governance at the center. The regional leaders and parties are playing definite role in national politics and running constitutional offices. Thus a prolonged debate amongst the Constitutional Jurists about the nature of the Indian Constitution went on changing along with emerging character of Indian Constitution Earlier view was that it was a quasi-federal constitution and contains more unitary features than federal. 26  The other equally strong view that it was a federal constitution with a novel feature of adopting itself to national emergencies. The framing of Indian Constitution as done away with the traditional classification followed by the political scientists such as the Constitutions are either unitary of federal. As discussed above, the framers incorporated a proportionate mix of features of unitary Constitution, wherein the powers of the Government are centralised in one Government viz., the Central Government, the provinces are subordinate to the Centre, and the features of federal Constitution where there will be division of powers between the federal and the State Governments and both are independent in their own spheres. It is mainly federal with unique safeguards for enforcing national unity and growth. It is a Union of composite States of a novel type. It enshrines 24 the principle that in spite of federalism, the national interest ought to be parmount. Salient Features The basic philosophy of our Constitution is summed up in the Preamble, which declares India to be a Sovereign Socialist Secular Democratic Republic. 1. Largest Written Constitution: -- It is a written constitution containing as many as 395 Articles and 9 schedules, originally. It is the bulkiest and the largest one in the world. Constitution of U.S.A. contains just 7 Articles, that of Australia 128 and that of Canada 47 Articles. The 395 Articles of Indian Constitution were divided into 22 parts. After the Constitution 78th Amendment Act, 1995, the Constitution now consists of 443 Articles divided into 26 parts and 12 Schedules. Since 1950 to 1995, 21 Articles have been repealed and 69 more Articles have been added. As the framers wanted to remove difficulties during the working of the Constitution, they incorporated several details to avoid loopholes and defects. They framed the Chapter on Fundamental Rights on the model of the American Constitution, and adopted the parliamentary system of Government from the United Kingdom, they took the idea of the Directive Principles of State Policy from the Constitution of Ireland, and added elaborate provisions relating to Emergency in the light of the Constitution of the German Reich and the Government of India Act, 1935. It lays down the structure not only of the Central Government but also of the States, while American Constitution left the aspect of drafting the provisions of governance to the States. The vastness of the country and diversity in the society with peculiar problems is another reason for bulkiness of the Constitution. 2. Sovereign Socialist, Secular Democratic Republic: -- According to Preamble, India is a Sovereign, Socialist, Secular, Democratic Republic. The word Sovereign emphasises that India is no more dependent upon any outside authority. The term "Socialist" has been inserted in the Preamble by the Constitution 42nd Amendment Act, 1976. In general, it means some form of ownership of the means of production and distribution by the State. India has chosen mixed economy and now drifting towards privatisation. The term Secularism means a State which has no religion of its own as a recognised religion of State. It treats all religions equally. In a secular State the State regulates the relation between man and man. It is not concerned with the relation of man with God. The term "democratic" indicates that the Constitution has established a form of Government which gets authority from the will of the people. The rulers are elected by the people. Justice, liberty Equality and Fraternity are the essential features of the democracy. The term Republic signifies that there shall be an elected head of the State who will be the Chief Executive Head. The President of India, 24 Jennings, Some Characteristics of Indian Constitution, p. 55 27 unlike the British King or Queen, is not a hereditary monarch but an elected person chosen for a limited period. It is an essential ingredient of a Republic. 3. Parliamentary form of Government: -- Both at the Centre and States, the Constitution established a parliamentary form of Government. The British model has been adopted in toto, in this regard. The essence of the parliamentary form of Government is its responsibility to the legislature. The Council of Ministers is collectively responsible to the Lower House i.e., Lok Sabha. In States the Council of Ministers is responsible to Legislature, and therefore it is called responsible Government. On the otherhand the American Government is a Presidential form of Government, where the President, the real executive and elected directly by the people for 4 years. All executive powers are vested in him. He is not responsible to the Lower House, i.e., the Congress. The members of his cabinet are not members of Legislature. They are appointed by the President and therefore, responsible to him. Parliamentary democracy has three important characteristics namely,-- (i) the executive is responsible to the Lower House; (ii) the Lower House has a democratic basis (i.e. it is elected by the people; and (iii) the ultimate legislative and financial control is vested in this Lower House. The Parliamentary system of Government in India is based on adult suffrage, whereby all citizens of India who are not less than 18 years of age and are not disqualified on certain grounds like non- residence, unsoundness of mind or corrupt practices have the right to be registered as voters in any election to the Lok Sabha and to the Legislative Assemblies of the States. 4. Partly Rigid and Partly Flexible: -- The Constitution of India is partly rigid and partly flexible. There are certain provisions which can be amended by a simple majority in Parliament, while there are certain other provisions whose amendment requires not only a special majority in Parliament but also ratification by at least one half of the State Legislatures. A written constitution is generally said to be rigid. But the Indian Constitution despite being a written one is not rigid and it is sufficiently flexible. 5. Fundamental Rights: -- The incorporation of a formal declaration of Fundamental Rights in Part III of the Constitution is deemed to be a distinguishing feature of a democratic State. These rights impose limitations on the powers of the State. The State cannot take away or abridge these Fundamental Rights of the citizen guaranteed by the Constitution. If it passes such a law it may be declared as unconstitutional by the Courts. Besides declaring the fundamental rights, the Constitution provided a machinery to enforce them. The Supreme Court is empowered to grant most effective remedies in the nature of Writs of Habeas Corpus, Mandamus, Prohibition, Quo Warranto, and Certiorari whenever these rights are violated. However, the Fundamental Rights are not absolute. They are subjected to certain restrictions, based on some social interests. Thus, our Constitution tries to strike a balance between the individual liberty and the social interest. This idea of incorporating Bill of Rights has been taken from the Constitution of the United States. 6. Directive Principles of State Policy: -- The Directive Principles of State Policy contained in Part IV set out the aims and objectives to be taken up by the States in the governance of the country. 28 Unlike the Fundamental Rights, these rights are not justiciable. Though by their vary nature they are not justiciable in the Court of law, yet the State Authorities have to answer for them to the electorate at the time of election. The idea of the welfare state envisaged in our Constitution can only be achieved if the States endeavour to implement them with a high sense of moral duty. The support to villages and rural economy called Gram Swaraj, one of the ideals of Mahatma Gandhi could be found only in Directive Principles of State Policy. Ideals which could not be guaranteed as enforceable rights were accommodated in this Part after much deliberations in the Constituent Assembly. 7. Fundamental Duties: -- The Constitution (42nd Amendment Act, 1976) has introduced a Code of ten "Fundamental Duties" for Citizens. The fundamental duties are intended to serve as a constant reminder to every citizen that while the Constitution has specifically conferred on them certain fundamental rights, it also requires the citizens to observe certain basic norms of democratic conduct and democratic behaviours. These duties, like the Directive Principles of State Policy cannot be judicially enforced. However they remind the responsible citizen what Constitution expects from them. 8. Adult Suffrage:-- In the place old communal franchise, the uniform adult suffrage system has been adopted. Under the Indian Constitution every man and woman above 18 years of age has been given the right to elect their representatives for the legislature. The adoption of the universal adult suffrage under Article 326 without any qualification of sex, property, taxation, or the like is a bold experiment in India having regard to vast extent of the country and its population, with an overwhelming illiteracy. 9. An Independent Judiciary :-- After a thorough deliberation in the Constituent Assembly, the founding fathers created an independent judiciary with a power of Judicial Review as the custodian of the fundamental rights of the citizen. It plays a significant role in determining the limits of power of the Centre and States. Single independent judiciary to interpret the Union and State Laws, vibrant judicial review of executive and legislative action are other basic features of the Indian Constitution which secure the philosophical foundations of the rule of law and democracy. The judiciary is the only resort for a citizen to enforce the constitutional provisions and secure the rights. 10. A Secular Socialist State: -- The Citizens of our country are free to follow any religion and they enjoy equal rights without any distinction of caste, creed religion or sex. The word "secular" has been included in the Preamble by Forty Second Amendment. Article 15 (1) prohibits any discrimination based on religion, and Article 25 (1) provides that subject to public order, morality and health and to the other provisions, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion. Secularism is also subject to democratic socialism. Religious freedom cannot therefore be used to practice economic exploitation. The right to acquire, own and administer property by religious institutions is subject to the regulatory power of the State. 11. Single Citizenship :-- Though the Constitution envisaged a dual polity i.e., Centre and States, it provides for a single citizenship for the whole of India. The American Constitution provides for dual citizenship i.e., the citizen of USA and a State citizenship. Every Indian has a citizenship 29 through out the country with same rights. Recently Indian citizenship is given to the non-resident Indians permitting them to retain the foreign citizenship. *************** 30  II Rule of Law  Rajnish Kumar Singh Normative decisions are made at the summit of the state, in a process that itself entails significant political negotiation between public and private interests. However, once those general policy directions are determined, the difficult work of negotiation then shifts to the administrative sphere. The sphere of administrative law is where ‘the rubber meets the road’ in the modern state. It is the point of contact between state and society where efforts to implement specific legislative goals generate the ‘friction’ of social and political resistance. As part of the effort to reduce or override that resistance, legislative norms are often redirected in number of ways and the role of administration in this regard is very significant. In the England, after an initial attempt at dejudicialisation in the 17th century had failed (due to the Parliament’s successful assertion of supremacy over the crown culminating in the Glorious Revolution of 1688), it would return over the course of the 19th century, albeit sub silencio in tribute to the strength of the prevailing Rule-of-Law culture. By the early-20th century, with the dramatic expansion of the regulatory capabilities of the state, the ordinary English courts became more aware of the new rea