The Federal Scheme

The Federal Scheme  

Mahendra Pal Singh
The Oxford Handbook of the Indian Constitution
Edited by Sujit Choudhry, Madhav Khosla, and Pratap Bhanu Mehta

Print Publication Date: Mar 2016 Subject: Law, Constitutional and Administrative Law
Online Publication Date: Feb 2017 DOI: 10.1093/law/9780198704898.003.0025

Abstract and Keywords

This chapter examines the Indian Constitution’s federal scheme. It begins with an
overview of the basic features of the federal framework, with particular emphasis on dis­
tribution of powers—legislative, executive, and judicial—between the Central Govern­
ment and the regional governments (that is, States), the supremacy of the Constitution,
and dispute resolution mechanisms for evaluating the competence of the two govern­
ments for exercising their powers or functions. It then considers the centralised charac­
ter of Indian federalism by focusing on the identity of States, legislative competence, and
regional emergencies. The chapter concludes by reflecting on how the federal arrange­
ment should be understood and judged.

Keywords: executive power, Central Government, dispute resolution, federalism, Indian Constitution, judicial pow­
er, legislative competence, legislative power, regional emergencies, regional governments

I. Introduction
ONE way of classifying a constitution is whether it is unitary or federal. Broadly speaking,
in a unitary constitution the totality of the powers of the State is vested in one govern­
ment, while in a federal constitution it is divided between a government for the whole
country and a number of governments for its different regions. After initial differences on
whether the Constitution of India is unitary or federal,1 it has finally been decided that it
is federal and that federalism is one of its basic features, which cannot be changed even
by an amendment of the Constitution.2 The initial differences and the final conclusion in­
dicate that finer issues are involved in the identification of a constitution. Every constitu­
tion responds to the background, surrounding conditions, and future projection of the
country of its making. The Constitution of India is no exception to this rule. This chapter
studies the Constitution’s federal scheme. It first provides an overview of the basic frame­
work and distribution of powers between the Centre and States. It then turns to three
specific topics—the identity of States, legislative competence, and regional emergencies

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The Federal Scheme

—to demonstrate the centralised character of Indian federalism. It concludes with some
reflections on how we should understand and judge this federal arrangement.

II. The Federal Framework

The commonly accepted features of a federal constitution are: (i) existence of two levels
of government: a general government for the whole country and two or more regional
governments for different regions within that country; (ii) distribution of competence or
powers—legislative, executive, judicial, and financial—between the general and the re­
gional (p. 452) governments; (3) supremacy of the constitution—that is, the foregoing
arrangements are not only incorporated in the constitution but they are also beyond the
reach of either government to the extent that neither of them can unilaterally change nor
breach them; (4) dispute resolution mechanism for determining the competence of the
two governments for exercising any power or for performing any function. We may exam­
ine the federal scheme in the Constitution of India on the above parameters.

1. Central and Regional Governments

The Constitution designates the Union government as the Union of India and the regional
governments as States, each one of the latter having a name. Initially they were divided
into three categories—Part A, Part B, and Part C States—according to their historical an­
tecedents. But with the reorganisation of the States in 1956 the entire territory of India
was divided into States and the Union Territories. They are all named along with their ter­
ritorial dimensions in Schedule I of the Constitution. Their number changes with the reor­
ganisation of States from time to time. Presently, there are twenty-nine States and seven
Union Territories. With the exception of the State of Jammu and Kashmir, which has a
special status under the Constitution and has its own Constitution,3 the rest of the States
are governed by the Constitution of India and have no separate constitutions of their own.
However, in view of the special features of some of the States, the Constitution makes
special provisions for them not applicable to other States.4 Such an approach may be
termed as asymmetric federalism.5 As regards the Union Territories, though all of them
are expected to be subject to the direct administration of the Union of India, the Constitu­
tion also makes special provisions for some of them.6 Special arrangements are also made
separately for the Scheduled and Tribal Areas.7 While the provisions of the Fifth Schedule
apply to the Scheduled Areas and Scheduled Tribes in any State, the provisions of the
Sixth Schedule apply to the areas in the States of Assam, Meghalaya, Tripura, and Mizo­
ram.

The fluctuation in the number of States raises the question of whether the States can be
put out of existence, resulting in the absence of the first feature of a federal constitution
from the Constitution of India. Although no possibility of that kind has ever been enter­
tained in practice, it does not even seem to be a theoretical possibility. According to Arti­
cle 1(1) of the Constitution, ‘India, that is Bharat, shall be a Union of States.’ So long as
this Article stands as it is, India must have more than one State. The question of whether

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The Federal Scheme

Article 1(1) may be deleted or amended to read ‘India, that is Bharat, shall be a Union’ or
‘unitary State’ stands answered by the basic structure doctrine. Well before Kesavananda
Bharati v State of Kerala,8 which laid down the basic structure limit on amendments, Con­
rad cited Article 1(1) to argue that the basic structure of the Constitution was unamend­
able and the Court (p. 453) cited him among others to arrive at its conclusion.9
Subsequent decisions have confirmed that federalism is part of the basic structure of the
Constitution and is therefore beyond the power of amendment.10 While federalism is a
part of the basic structure, two features of the Constitution—Parliament’s power to alter
State boundaries and the representation of the States in Parliament—show the centralisa­
tion feature of Indian federalism. This will be subsequently examined.

A third level of governments at the village and municipal levels has also been introduced
into the Constitution by way of the Seventy-third and Seventy-fourth Amendments. This
level was already envisaged in one of the Directive Principles of State Policy,11 and was
within the jurisdiction of the States under Entry 5 of List II of Schedule VII to the Consti­
tution. While these Amendments had hoped to strengthen local government in India,
strictly speaking, local government bodies remain within the competence of the States for
devolution of powers and functions.12 For this reason they have not yet been able to de­
velop an effective third tier of government and are, therefore, not of much interest from
the point of view of the federal scheme.13

2. Distribution of Powers

The totality of the powers of the State is divided into legislative, executive, judicial, and
financial. In a federal constitution, such powers are shared between the central and the
regional governments. No universal rule or general principle for sharing these powers ex­
ists, and it is often hard to separate matters of common concern from those involving lo­
cal needs. Quite often matters of local interest become matters of general interest or of
interest to more than one region and, therefore, such matters may be placed in a third
category over which both the central and the regional governments may exercise powers
as the occasion demands. Another recommended general rule is that while the Union gov­
ernment should have enumerated powers the rest may be left to the regional govern­
ments. But it is easier said than practised, for some powers need to be within the jurisdic­
tion of both. Moreover, over time, matters may emerge which are incapable of being han­
dled by the regional governments. In that case they must be handled by the Union gov­
ernment. In view of such reasons no hard-and-fast rule of universal application can be
prescribed for the distribution of powers between the central and the regional govern­
ments. In this sub-section, we will focus on how the Indian Constitution distributes pow­
ers between the Union and the States.

a. Legislative Powers
The distribution of legislative powers is primarily given in Chapter 1 of Part XI of the Con­
stitution. Exceptionally, it may also be found in other provisions.14 The first provision of
(p. 454) this Part—Article 245—prescribes the territorial jurisdiction of the Union Parlia­

ment and the State legislatures: the former can make laws for the whole of India or any
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The Federal Scheme

part of it, while the latter can make laws for the territory of that State or any part of it.15
Though the laws of Parliament cannot be invalidated on grounds of their extraterritorial
operation, Parliament cannot make extraterritorial laws.16 State laws may also have ex­
traterritorial operation if a nexus may be established between the subject matter of law
and the legislating State.17 The legislative subjects are quite exhaustively enumerated in
three lists: List I—Union List; List II—State List; and List III—Concurrent List. No tax en­
try is, however, included in List III. They consist of ninety-seven, sixty-six, and forty-seven
items, respectively. The total existing number of items varies in each list because of
amendments. Article 246 of the Constitution lays down the law for the exercise of power
over these subjects. Briefly, Parliament has the exclusive power to make laws on any sub­
ject included in List I, overriding the powers of the State legislatures to make law on any
subject included in List II or List III—that is, if a subject can possibly be read in List I as
well as in any of the other two lists it is deemed to be included only in List I and not in
any of the other two lists. Secondly, if a subject is included in List III, Parliament has the
power to make law on that subject without regard to its inclusion in List II. Thirdly, the
State legislatures have the power to make law on any subject included in List II, subject
to the condition that that subject or any part of it is not included in List I or List III. Thus
the legislative powers assigned to the Union have primacy over the powers assigned to
the States. Finally, Parliament has the exclusive power to make law on any subject for any
territory not included in the territory of any State. The legislative subjects including taxes
not listed in any of the three lists—that is, the residuary subjects—have been assigned ex­
clusively to Parliament.

In the foregoing arrangement, Parliament clearly emerges in a dominating position as

against the State legislatures. The legislative items included within List I are much more
numerous—ninety-seven compared to sixty-six in List II. They are also much more impor­
tant than the ones in the other two lists. In case of conflict, items in List I override items
in Lists II and III and items in List III override those in List II. Thus List II becomes the
least important. Finally, any residuary subject also has precedence over the powers of the
State legislatures in Lists II and III.18 For items in List III, if the State law conflicts with
the law of Parliament the latter prevails over the former, though with the prior approval
of the President, State law may also prevail over the law of Parliament.19 Parliament’s
powerful place in comparison with the States will be explored further in a later section.
For now, it is important to note that in certain cases Parliament may override the forego­
ing distribution of legislative powers between the Union and the States. For example, dur­
ing an emergency arising from war, external aggression, or armed rebellion Parliament
may make laws on any item in List II;20 Parliament may make law on any subject ‘for im­
plementing any treaty, agreement or convention with any country or countries or any de­
cision made at any international conference, association or other body’;21 if the President
of India is satisfied (p. 455) that the government of any State cannot be exercised in accor­
dance with the provisions of the Constitution, he may assume all the powers of the State
and authorise Parliament to make laws for that State;22 and so forth.23 In view of these
exceptions, doubts are sometimes expressed over whether the distribution of legislative
powers between the Union and the States has any meaning. The working of the Constitu­

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The Federal Scheme

tion so far, however, establishes that the primary distribution of legislative powers is the
norm and the exceptions have been invoked only in limited cases.

b. Executive Powers
The executive power of the Union and States vests respectively in the President of India
and the Governor of every State and is exercised by them either directly or through offi­
cers subordinate to them in accordance with the Constitution.24 While the President is
elected by an electoral college comprising elected members of Parliament and elected
members of State Legislative Assemblies, the Governor of a State is appointed by the
President and though his term of office is five years, he holds his office during the plea­
sure of the President.25 With some exceptions, the executive power is divided between
the Union and the States on the same lines as the legislative powers. Accordingly, the ex­
ecutive power of the Union extends to all those matters on which Parliament has the pow­
er to make laws, as well as to matters on which it may exercise such power by virtue of
any treaty or agreement. However, the executive power of the Union does not extend to
matters included in List III unless otherwise provided in the Constitution or any law of
Parliament.26 Correspondingly, the executive power of the States extends to matters on
which State legislatures have the power to make laws, subject to the condition that on
matters in List III it is subject to the Union’s power, as mentioned above.27

Some of the exceptions that the Constitution makes to this distribution of powers include
the following: the exercise of State executive power must ensure compliance with the
laws of Parliament and existing laws applicable in the concerned State, and for this pur­
pose the Union has the executive power to give such directions to any State as it consid­
ers necessary;28 in the exercise of its executive power the Union may also give directions
to any State for the construction and maintenance of means of communication of national
or military importance as well as for the protection of railways within the State;29 and so
forth.30

c. Judicial Power
Unlike the legislative and executive powers, the Constitution does not divide judicial pow­
er between the Union and the States, although in the textual arrangement of constitution­
al provisions it places the Union and State judiciary separately. The former includes the
Supreme Court, while the latter includes the High Courts and the subordinate courts.31
(p. 456) It also authorises Parliament to establish additional courts for the better adminis­

tration of Union laws and for the creation of an all-India judicial service.32 Except for the
appointment of judges of the Supreme Court and the High Courts, which is made by the
President of India, appointment of administrative staff and the budget of the Supreme
Court are within the jurisdiction of the Union and of the High Courts and subordinate
courts within the jurisdiction of the States. But the same courts administer the laws of the
Union as well as of the States.33 In the allocation of legislative powers to the Union and
the States, the Supreme Court for all purposes and the High Courts with some exceptions
are placed within the exclusive power of the Union,34 while the administration of justice,
constitution, and organisation of all courts other than the Supreme Court and the High

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The Federal Scheme

Courts are placed within the concurrent jurisdiction of both the Union and the States.35
The officers of the courts and procedure in rent and revenue courts as well as court fee in
all courts except the Supreme Court are placed within the jurisdiction of the States.36
With respect to the judiciary the paramount consideration of the Constitution makers was
its independence from the other two wings of the State as well as from local influence.
Therefore, the judiciary was envisaged and arranged as unitary rather than federal to ex­
clude the possibility of local influence.37

d. Financial Powers
Although the imposition and collection of any tax is a legislative function,38 which is as­
signed to Parliament and State legislatures in Article 246 read with the relevant entries in
Lists I and II, finance is covered separately in Part XII of the Constitution. Major taxes
such as income tax, excise duty, corporate tax, wealth tax, estate duty, service tax, and
any residuary tax are assigned exclusively to Parliament while taxes such as land rev­
enue, tax on agricultural income, estate duty on agricultural land, excise duty on alco­
holic and intoxicating drugs, tax on entry of goods, sales tax, passenger, goods, and vehi­
cle tax are assigned exclusively to the States. As the revenue from State taxes is expected
to be inadequate to discharge their constitutional obligations, Part XII makes provision
for the distribution of revenue from taxes between the Union and States. Both the Union
and the States are required to maintain consolidated and contingency funds for receiving
and depositing any revenues from any source.39 For the distribution of revenues between
the Union and the States some taxes are levied by Parliament but collected and appropri­
ated by the States,40 service tax is levied and collected by the Union but appropriated
both by the Union and the States,41 some taxes are levied and collected by the Union but
are assigned to the States,42 some taxes are levied by the Union and are distributed be­
tween the Union and the States.43 The Union is (p. 457) also required to make some grants
to the States.44 Provisions are also made for the Union and the States to borrow money.45

The other notable provision on financial relations is the provision for the Finance Com­
mission, which the President appoints at the end of every five years for recommending
distribution of revenues between the Union and the States, principles for grants-in-aid,
measures for augmenting the consolidated fund of States for supplementing the re­
sources of Panchayats, and on any other matter referred to it. The recommendations of
the Commission are placed before Parliament and are invariably implemented. Thus the
Commission performs an important role in establishing the balance between the responsi­
bilities of the governments and the revenues available for discharging them, something
that is often a contentious and delicate matter in federal constitutions.

3. Supremacy of the Constitution

Unlike some other constitutions, the Constitution of India does not have a supremacy
clause. However, neither its makers, nor the courts, nor the governments at any level
have entertained any doubt at any stage that it is the highest law of the land binding on
all organs of the State. Therefore, soon after the commencement of the Constitution, laws
of different legislatures, including laws of Parliament and the executive actions of the
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The Federal Scheme

State, were challenged in the High Courts and the Supreme Court and these courts enter­
tained such challenges without either of the parties raising any concerns over whether
the Constitution must be complied with. In India, the supremacy of the original Constitu­
tion has been established not only to the extent that all actions of different organs creat­
ed under it must comply with it but also that the amending body must exercise its amend­
ing power subject to the condition that the basic structure of the Constitution is not un­
dermined.46

4. Dispute Resolution Mechanism

For resolving disputes with respect to the constitutional position or powers of the Union
and the States or States inter se, the Constitution provides access to courts. Unlike some
constitutions, which provide a separate court for deciding constitutional questions, our
Constitution entrusts this function to the same courts which decide all other matters. For
a legal dispute between the Union and the States, the Supreme Court may be approached
directly by filing a suit in its original jurisdiction.47 Since the commencement of the Con­
stitution, only a few occasions have arisen for availing this remedy. In other disputes of a
collateral nature in which only one of the parties is the Union or any of the States, the
matter may be raised in any court having the territorial or pecuniary jurisdiction. Howev­
er, as a matter of practice as well as convenience all such questions are initiated in the
High Court having the territorial jurisdiction in the matter because the subordinate
courts have no power to invalidate laws made either by Parliament or by a State legisla­
ture or to issue (p. 458) writs.48 The mechanism of courts for dispute resolution between
the Union and States has worked well and no special complaints have ever been made
about it besides general complaints about the judicial process.

III. The Centralised Character of Indian Feder­

alism
The above discussion lays out the formal division of powers between the Union and the
States. As is clear from many of the provisions mentioned, the Constitution tilts heavily in
favour of the Union. In this section, we pay closer attention to particular themes and con­
stitutional developments over the past six decades to show that the working of Indian fed­
eralism conforms to the image of centralisation.

1. The Identity of States

An important matter to consider in the context of any federal polity is the weight it grants
to the identity of States. In this Indian context, the weakness of this identity is revealed
by examining how the Constitution treats the territorial integrity of States and how it pro­
vides for their representation in Parliament.

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The Federal Scheme

a. State Boundaries and New States

Article 3 of the Constitution makes serious inroads into the position of States insofar as it
authorises Parliament to form a new State by separating any territory from a State or by
uniting two or more States or any part of them, or by uniting any territory to a part of any
State. It may also increase or diminish the area of any State or alter the name of any
State, subject to the condition that the diminished territory should remain part of the ter­
ritory of India and not be transferred to any other country. The power to transfer any ter­
ritory to any other country is not included in Article 3 because such transfer requires an
amendment of the Constitution through Article 368.49 The only safeguard available to the
concerned State in Article 3 is that its views are sought by the President on the proposed
law within the specified time. But Parliament is not obliged either to consider these views
or to modify the law. By this law Parliament may make all the consequential changes in
any of the provisions of the Constitution without the need to observe the procedure for
amending the Constitution.50 (p. 459)

In Babulal Parate v State of Bombay,51 the Court first considered the scope of Article 3.
The appellant argued that the formation of the State of Bombay under the States Reor­
ganisation Act as a single unit instead of the three units proposed in the original Bill was
in contravention of Article 3, since the legislature of Bombay State had no opportunity to
express its views on the amendments made in Parliament to the Bill. The Court held that
(i) State legislatures have a right under Article 3 only to express their views, not to make
modifications; (ii) ‘Bill’ in the proviso to Article 3 does not include amendments of any of
the clauses of the Bill. In Pradeep Chaudhary v Union of India,52 the constitutionality of
Section 3 of the Uttar Pradesh Reorganisation Act 2000, which included Haridwar Dis­
trict in the State of Uttarakhand (then Uttaranchal), was at issue. The original Bill placed
before the State legislature only mentioned the city of Haridwar as being part of the terri­
tory of Uttaranchal, but the amended version passed by Parliament included the whole
district of Haridwar. Citing Babulal Parate with approval, the Court reiterated that, while
ascertaining the views of the State legislature under the proviso to Article 3 was manda­
tory, Parliament was in no way bound by these views.

The interpretation of parliamentary supremacy was extended to Article 4 in Mangal Singh

v Union of India.53 The appellants contended that the Punjab Reorganisation Act 1966 vi­
olated the mandatory provisions of Article 170(1) by departing from the minimum pre­
scribed membership of the State Legislative Assembly. The Court, however, held that the
power to reduce the total number of members of the assembly below the number pre­
scribed by Article 170(1) was ‘implicit in the authority to make laws under Article 4’.54
According to the Court, the scope of the phrase ‘supplemental, incidental, or consequen­
tial’ in Article 4 was not just restricted to the amendment of the First and Fourth Sched­
ules, but also to the ‘admission, establishment or formation of a State’ to ‘conform to the
democratic pattern envisaged by the Constitution’.55 Thus, post-Mangal Singh, we can
see that the only requirement is that the new State must have effective legislative, execu­
tive, and judicial organs, as the Constitution requires this for every State.

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The Federal Scheme

An important recent decision is Mullaperiyar Environmental Protection Forum v Union of

India.56 One of the questions in this case was the constitutionality of Section 108 of the
States Reorganisation Act 1956, which provided for the continuance of agreements be­
tween the Central and State Governments. The petitioner contended that it encroached
upon the legislative competence of the State legislature under Entry 17 of List II. The
Court opined that ‘the law-making power under Articles 3 and 4 is paramount and is not
subjected to or fettered by Article 246 and Lists II and III of the Seventh Schedule’.57
Indeed, ‘the constitutional validity of law made under Articles 3 and 4 cannot be ques­
tioned on the ground of lack of legislative competence with reference to the Lists of the
Seventh Schedule’.58 It is to be noted that a still more recent decision, State of Himachal
Pradesh v Union of India,59 appears to be at odds with the decision in Mullaperiyar. In a
dispute over the sharing of electricity generated by the Bhakra-Nangal and Beas hydro­
electric projects, the State of Himachal Pradesh claimed a 12 per cent share of the power
generated by the projects for free, since it was the ‘home State’ of the projects.60 In re­
sponse, the defendants contended (p. 460) that since no such right was granted to the
State under the Punjab Reorganisation Act 1966 (made under Article 3), it did not have
any ‘pre-existing or natural rights over its land and water’.61 The Court, instead, opined
that ‘under Article 3, Parliament cannot take away the powers of the State executive or
the State legislature in respect of matters enumerated in List II of the Seventh Schedule
to the Constitution’.62 In reaching this conclusion, the Court did not, however, cite the
Mullaperiyar judgment.

b. State Representation in Parliament

Section 3 of the Representation of the People Act 1951 originally provided that the quali­
fication for being chosen as a representative of a State in the Council of States in India’s
Parliament (the Rajya Sabha) was that the candidate be ‘an elector for a Parliamentary
constituency in that State or territory’. Crucially, this provision was amended in 2003 by
substituting ‘in that State or territory’ with ‘in India’. The amendment was challenged by
a writ petition under Article 32 in Kuldip Nayar v Union of India.63

The petitioners argued that the change ‘[violated] the principle of federalism, the basic
feature of the Constitution’.64 The Rajya Sabha, it was argued, was constituted to provide
representation to the people of the various constituent States of the Indian Union and a
representative with no domicile in a State cannot effectively represent the people of that
State. In other words, the representative must have an ‘identifiable nexus’ with the
State.65 It was further argued that the amendment had the effect of ‘equating’ the mem­
bership qualification of the Rajya Sabha with that of the Lok Sabha; it obliterated the dis­
tinction between the two houses of Parliament. The intent of the constitutional scheme
was instead for members of the Lok Sabha to represent their constituency and members
of the Rajya Sabha to represent their State. The amendment effectively rendered the Ra­
jya Sabha redundant. The petitioners also claimed that a person elected to the Rajya Sab­
ha under the amended qualification would not amount to a representative of the State as
required by Article 80, but would only be a representative of the State Assembly. Article
84 requires Parliament to prescribe by legislation ‘some connection’ between the repre­

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The Federal Scheme

sentative and his State, which was now absent.66 Developing this argument, it was sug­
gested that by failing to prescribe an alternative qualification to the one it had repealed,
Parliament had in effect ‘abdicated’ its responsibility under Article 84(c).67 It was now left
entirely to the ‘subjective determination of each State Assembly, to elect any one’ to be
their representative in the Rajya Sabha.68 This was an interesting inversion of traditional
federalism arguments by the petitioners: in essence, they were contending that State as­
semblies were not competent to decide who was qualified to represent them in Parlia­
ment.

Sabharwal CJ, speaking for the Court, was unconvinced by these arguments. In rejecting
them, he made a number of interesting observations about the nature of Indian federal­
ism. To begin with, he declared that ‘The nature of federalism in the Indian Constitution
is no longer res integra … There can be no quarrel with the proposition that the Indian
model is broadly based on federal form of governance.’69 He pointed to Ambedkar’s crite­
rion for (p. 461) federalism from the Constituent Assembly debates: ‘The chief mark of fed­
eralism as I said lies in the partition of the legislative and executive authority between
the Centre and the Units by the Constitution.’70

To pinpoint the precise nature of Indian federalism, he cited a number of judgments of

the Court, including State of West Bengal v Union of India71 and SR Bommai v Union of
India,72 to reach the conclusion that while ‘the federal principle is dominant in our Consti­
tution and that principle is one of its basic features … it is also equally true that federal­
ism under the Indian Constitution leans in favour of a strong Centre’.73 In addition to judi­
cial precedent, he cited the disproportionate legislative powers of Parliament in Part XI,
the existence of solely national and not State citizenship, and ‘perhaps most important 
… ’, the power of Parliament under Article 3 to create new States and alter existing
ones.74 This last power, according to him, was the answer to the argument about the need
for an ‘identifiable nexus’ between the representative and his State: ‘in the context of In­
dia, the principle of federalism is not territory related’.75 The Chief Justice then proceed­
ed to compare India with other constitutions that provided for bicameral central legisla­
tures: the United States and Canada. He pointed to the fact that both countries, in
marked contrast to the Indian Constitution, had residence requirements specified in their
respective constitutions for membership in the senate. This allowed him to conclude that
‘residence, in the matter of qualifications, becomes a constitutional requirement only if it
is so expressly stated in the Constitution’.76

2. Legislative Competence

The Constitution, as we have noted, contains an elaborate division of legislative power be­
tween the Union and the States as laid down in the three lists in Schedule VII. How have
conflicts between these lists been interpreted? Does the resolution of such conflicts but­
tress the claim that the federal model is greatly centralised?

An illustrative case for the judicial understanding of the federal scheme is State of West
Bengal v Union of India.77 This dealt with the Coal Bearing Areas (Acquisition and Devel­

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The Federal Scheme

opment) Act 1957, a statute that authorised the Union government to acquire land vested
in any State. The plaintiff argued that the State of West Bengal was a sovereign authority,
and the power of Parliament did not extend to depriving the State of the property vested
in it as a sovereign authority. The Court held that ‘even if the States are regarded qua the
Union as Sovereign’, ‘the power of the Union to legislate in respect of property situate in
the States … remains unrestricted … ’78 In the process, the Court undertook a detailed re­
view of the federal scheme and concluded that it weighed clearly in favour of parliamen­
tary supremacy: to assume the absolute sovereignty of individual States was ‘to envisage
a Constitutional scheme which does not exist in law or in practice’.79

Decisions on the doctrine of harmonious construction, applied in the case of an overlap

between the language of entries in different legislative lists, also illustrate this mindset.
(p. 462) In Gujarat University v Krishna Ranganath Mudholkar,80 the Gujarat University

Act 1949 prescribed the medium of education for all of the State’s universities. Entry 11
of List II empowered the State legislature here, but it overlapped with Entry 66 of List I.
While holding that both entries had to be harmoniously construed, the Court nevertheless
insisted that ‘to the extent of overlapping, the power conferred by Item 66 List I must
prevail over the power of the State under Item 11 of List II’.81 This was followed in DAV
College, Bhatinda v State of Punjab.82

The same might be said about the understanding of residuary powers. In Union of India v
Harbhajan Singh Dhillon,83 the definition of ‘net wealth’ in the Wealth Tax Act 1952 was
amended to include agricultural land. The relevant entry in List I (entry 86) expressly ex­
cluded agricultural land, and it was therefore argued that the law fell within the scope of
Entry 49 of List II. Sikri CJ’s majority opinion found that the entirety of the Act fell within
Entry 97, and not Entry 86. However, he also held that even if the Act fell within Entry 86,
there was ‘nothing in the Constitution to prevent Parliament from combining its powers
under Entry 86, List I with its powers under Entry 97, List I’.84 In any case, any doubt on
the interpretation of Entry 97 was ‘removed by the wide terms of Article 248’.85 This was
reiterated in Sat Pal & Co v Lt Governor of Delhi.86

In Kartar Singh v State of Punjab,87 the constitutionality of the Terrorist and Disruptive
Activities (Prevention) Act 1987, among others, was in question. One of the grounds of
challenge was that Parliament lacked the legislative competence to enact the legislation,
and it would instead fall squarely within the scope of Entry 1 of List II—‘public order’.
The Court rejected this contention, and held that Parliament was competent to enact it,
given the presence of Article 248 and Entry 97 in List I. Indeed, it ‘[was] not necessary to
consider whether it falls under any of the entries in List I or List III’.88 Similar reasoning
was used in Naga People’s Movement of Human Rights v Union of India,89 to uphold the
legislative competence of Parliament to enact the Armed Forces (Special Powers) Act
1958. In this case, even though the Court found specific entries in List I to support
Parliament’s legislative competence, it reiterated that in the absence of a specific entry in
List II, Parliament would always have legislative competence to pass a law with its resid­
uary powers, even in the absence of a specific entry in Lists I and III.

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The Federal Scheme

A final example that might be offered is repugnancy. In Zaverbhai Amaidas v State of

Bombay,90 the State of Bombay had enacted its own legislation to enhance the maximum
punishment under the central Essential Supplies (Temporary Powers) Act 1946. The rele­
vant section in the central Act of 1946 was replaced by an amendment in 1950. The ap­
pellant contended that he had been wrongly tried by a magistrate, instead of a Sessions
Court, as the Bombay Act required. The State countered that the central amendment in
1950 had rendered the relevant section in the Bombay Act inoperative, even though it did
not have an explicit reference to the Bombay Act. The Court thus had to consider whether
the later amendment by the Centre would amount to an implied repeal of the Bombay Act
as it was ‘law with respect to the same matter’ under the proviso to Article 254(2). The
Court found that the wording of Article 254(2) allowed Parliament to not only expressly
repeal a State (p. 463) law, but also to render it void by implication if it ‘[conflicted] with a
later “law with respect to the same matter” that may be enacted by Parliament’.91
Comparing the subject matter of the Bombay Act and the 1950 amendment, the Court
found that the Bombay Act could not prevail against the later central Act. In T Barai v
Henry Ah Hoe,92 an offence under the Prevention of Food Adulteration Act 1954 had been
amended by the West Bengal State Legislature in 1973 to enhance the maximum punish­
ment from six years to life imprisonment. A subsequent parliamentary amendment re­
duced the maximum punishment from six to three years. The Court cited Zaverbhai
Amaidas with approval and not only allowed the implied repeal of the West Bengal
amendment, but also gave the accused retrospective benefit of the reduced punishment.

3. Regional Emergencies

We might think that one example which resists the description of Indian federalism as
heavily centralised is the Supreme Court’s decision in SR Bommai.93 Here a nine-judge
bench of the Court heard a number of cases together relating to the imposition of
‘President’s Rule’ under Article 356. Although the Court could not grant any relief to the
petitioners, since elections had already taken place in most of the affected States, it was
asked instead to formulate guidelines for the exercise of power under Article 356. Six dif­
ferent opinions were given by the Court, and some of them have particular relevance for
a discussion of federalism in the Indian Constitution.

While SR Bommai is often cited as precedent for the proposition that federalism is a part
of the basic structure of the Constitution, and some opinions did say so, a close reading of
the opinions shows that federalism was peripheral to the final outcome of the case. In­
stead, the idea of democracy and the principle of separation of powers were far more cen­
tral to the judges’ reasoning on the judicial review of the Proclamation under Article 356.
Five of the six opinions delivered discussed federalism (Verma and Dayal JJ’s opinion is
the exception), and three opinions (Ahmadi, Ramaswamy, and Reddy and Agrawal JJ’s)
held that federalism was part of the basic structure of the Constitution. But significantly,
none of the opinions traced the power of judicial review to the federal nature of the Con­
stitution. Instead, the opinions cited concerns about democracy and preserving the sepa­
ration of powers.

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The Federal Scheme

Sawant and Singh JJ’s opinion (with which Pandian J concurred) cited HM Seervai to note
that the ‘federal principle is dominant in our Constitution’, but soon after asserted that ‘it
is really not necessary to determine whether … our Constitution is federal, quasi-federal
or unitary in nature’.94 The real question was ‘whether the powers under Article 356(1)
can be exercised by the President arbitrarily and unmindful of its consequences to the
governance in the State concerned’.95 Noting that ‘Decentralisation of power … is an es­
sential part of democracy’ and ‘in democracy, people are sovereign and all power belongs
primarily to the people’, Sawant J held that interference through Article 356 had to ‘both
be rare and demonstrably compelling’.96 Further, frequent elections because of the
overuse of Article (p. 464) 356 risked ‘negating the … democratic principle’ by making
elections ‘the exclusive preserve of the affluent’.97

Ramaswamy J discussed federalism briefly, but only to find that India was ‘quasi-
federal’.98 He traced judicial review of Article 356 to the constitutional duty of the
Supreme Court: the Court could not ‘merely be an onlooker and a helpless spectator to
exercise of the power under Article 356. It owes duty and responsibility to defend the
democracy.’99 As the ‘ultimate interpreter of the Constitution’, the Court’s duty was to
‘determine what powers the Constitution has conferred on each branch of the Govern­
ment and whether the actions of that branch transgress such limitations’.100 The opinion
of Reddy and Agrawal JJ was similarly cursory in dealing with federalism, and when it
came to judicial review, simply stated that ‘The power under Article 356(1) is a condition­
al power. In exercise of the power of judicial review, the Court is entitled to examine
whether the condition has been satisfied or not.’101

IV. Conclusion
The Constitution’s federal scheme has been a matter of debate since its founding. KC
Wheare famously characterised the scheme as ‘quasi-federal’102 and others like CH
Alexandrowicz raised the question of whether Indian should in fact be called a federation
at all.103 Such notions of federalism, largely focused on autonomous units coming togeth­
er, became outdated, however, after World War II. There emerged a far more diverse un­
derstanding of how regional units might be granted a degree of autonomy. The Indian fed­
eral model emerged out of, and has been sustained by, an understanding that only a
strong Union can keep the country together and is necessary in the conditions in which
the Constitution is operating. There has also been a belief that the way in which regional
autonomy is provided under the Indian scheme affords a certain flexibility, and is able to
thereby avoid the rigidness to which federal models are often vulnerable.

From time to time, but particularly since the end of one-party rule in the country in 1967,
demands for re-examining the federal arrangements have been made. Generally, the
States ruled by regional parties have demanded greater autonomy and a larger share in
revenues so that they can pursue their policies uninfluenced by the Centre and without
depending on it for funds.104 In response to persistent demands from the States, the
Union appointed a commission headed by Justice RS Sarkaria to ‘examine and review the

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The Federal Scheme

working of the existing arrangements between the Union and States in regard to powers,
functions and responsibilities in all spheres’ and to ‘recommend such changes or other
measures as may be appropriate’.105 In the performance of its job and making recommen­
dations, the Commission (p. 465) was asked to keep ‘in view the social and economic de­
velopments that have taken place over the years’ and to have ‘due regard to the scheme
and framework of the Constitution which the Founding Fathers have so sedulously de­
signed to protect the independence and ensure the unity and integrity of the country
which is of paramount importance for promoting the welfare of the people’.106 After pro­
longed research, deliberations, and consultations with the Union, States, and several ex­
perts and stakeholders, the Commission found the existing constitutional arrangements
suitable while emphasising greater participation of the States in decision making. Two of
the major recommendations in this regard, for example, were on the appointment and
role of the Governor and the application of Article 356 in the States. To facilitate
smoother functional relations between the Union and the States, the Commission sug­
gested only a few minor amendments in a few provisions of the Constitution. Like the Ad­
ministrative Reforms Commission of 1966–70,107 which had considered the administrative
aspects of the Union–State relationship, the Sarkaria Commission mostly suggested ad­
justments in the administrative or functional relations between the Union and the States
so as to ensure maximum efficiency and effectiveness in the working of the two levels of
the government and the system set in the Constitution.

The Sarkaria Commission Report led to several developments. An Inter-State Council was
established to better coordinate Union–State relations; a third tier of government was in­
troduced; it highlighted the abuse of regional emergency powers and was relied upon by
the Supreme Court in SR Bommai; and so forth. Yet, in substance, it affirmed the frame­
work and division of powers outlined in the Constitution. In 2007, a second commission
was constituted under Justice MM Punchhi to reconsider India’s federal scheme in light
of political and economic developments since the Sarkaria Commission Report. Its report,
submitted in 2010, offered several recommendations, on topics ranging from law and or­
der to corruption, but did not propose any radical reformulation of the federal scheme.108
These efforts at reviewing India’s federal framework confirm that while there are several
important steps to be taken for the better functioning of the federal scheme, there is ac­
ceptance of the broad terms of the scheme and the centralised vision it embodies.

Notes:

(1) See eg, State of West Bengal v Union of India AIR 1963 SC 1241; State of Rajasthan v
Union of India (1977) 3 SCC 592; State of Karnataka v Union of India (1977) 4 SCC 608.

(2) SR Bommai v Union of India (1994) 3 SCC 1; Kuldip Nayar v Union of India (2006) 7
SCC 1.

(3) Constitution of India 1950, art 370.

(4) Constitution of India 1950, arts 371, 371-A–J.

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The Federal Scheme

(5) Madhav Khosla, The Indian Constitution (Oxford University Press 2012) 75.

(6) Constitution of India 1950, Part VIII, arts 239–42. For special provisions, see eg, art
239-AA for Delhi and art 239-B for Puducherry.

(7) Constitution of India 1950, Part X, arts 244, 244-A and Fifth and Sixth Schedules.

(8) (1973) 4 SCC 225.

(9) Dieter Conrad, ‘Limitation of Amendment Procedures and the Constituent Pow­
er’ (1970) 15–16 Indian Yearbook of International Affairs 375.

(10) SR Bommai (n 2); Kuldip Nayar (n 2).

(11) Constitution of India 1950, art 40.

(12) Constitution of India 1950, Eleventh and Twelfth Schedules.

(13) For the same view, see Khosla (n 5) 72.

(14) See eg, arts 119, 209. See also Mahendra P Singh, ‘Legislative Power in India: Some
Clarifications’ (1975–76) 4 & 5 Delhi Law Review 73.

(15) A discussion on whether the opening words of art 245(1), ‘Subject to the provisions
of the Constitution’ constitute a general limitation on the power of Parliament and State
legislatures or only limit their territorial jurisdiction, is not necessary here. But see
Khosla (n 5) 51.

(16) GVK Industries Ltd v Income Tax Officer (2011) 4 SCC 36.

(17) State of Bombay v RMD Chamarbaugwala AIR 1957 SC 699.

(18) Constitution of India 1950, Entry 97 of List I.

(19) Constitution of India 1950, art 254.

(20) Constitution of India 1950, art 250.

(21) Constitution of India 1950, art 253.

(22) Constitution of India 1950, art 356.

(23) Constitution of India 1950, arts 200, 201, 249, 252, 288(2), 304.

(24) Constitution of India 1950, arts 53, 154.

(25) Constitution of India 1950, arts 54, 155, 156.

(26) Constitution of India 1950, art 73.

(27) Constitution of India 1950, art 162.

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The Federal Scheme

(28) Constitution of India 1950, art 256.

(29) Constitution of India 1950, arts 257(2), 257(3).

(30) Constitution of India 1950, arts 257(1), 258(1), 258(2), 258A, 353(a), 356(1)(a), 360.
See also Jayantilal Amratlal Shodhan v FN Rana AIR 1964 SC 648; Samsher Singh v State
of Punjab (1974) 2 SCC 831.

(31) Constitution of India 1950, Chapter IV of Part V, Chapter V of Part VI.

(32) Constitution of India 1950, arts 247, 312.

(33) Constitution of India 1950, arts 146, 229.

(34) Constitution of India 1950, Entries 77 to 79, List I, Seventh Schedule.

(35) Entry 11-A, List III, Seventh Schedule.

(36) Entry 3, List II, Seventh Schedule.

(37) Granville Austin, The Indian Constitution (Oxford University Press 1966) 164; Mahen­
dra P Singh, Securing the Independence of the Judiciary—The Indian Experience (2000)
10 Indiana International and Comparative Law Review 245.

(38) See Constitution of India 1950, art 265, which requires levy and collection of taxes
only by authority of law.

(39) Constitution of India 1950, arts 266, 267.

(40) Constitution of India 1950, art 268.

(41) Constitution of India 1950, art 268-A.

(42) Constitution of India 1950, art 269.

(43) Constitution of India 1950, art 269.

(44) Constitution of India 1950, arts 273, 275.

(45) Constitution of India 1950, arts 292, 293.

(46) Kesavananda Bharati (n 8).

(47) Constitution of India 1950, art 131.

(48) Code of Civil Procedure 1908, s 113, Code of Criminal Procedure 1973, s 395. See al­
so Mahendra P Singh, ‘Situating the Constitution in the District Courts’ (2012) 8 Delhi Ju­
dicial Academy Journal 47.

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The Federal Scheme

(49) Special Reference No 1 of 1959 AIR 1960 SC 845; Ram Kishore Sen v Union of India
AIR 1966 SC 644. The Court also held that no territory of a Union Territory can be trans­
ferred to a foreign country except by an amendment of the Constitution.

(50) Constitution of India 1950, art 4.

(51) AIR 1960 SC 51

(52) (2009) 12 SCC 248.

(53) AIR 1967 SC 944.

(54) Mangal Singh (n 53) [7].

(55) Mangal Singh (n 53) [8].

(56) (2006) 3 SCC 643.

(57) Mullaperiyar Environmental Protection Forum (n 56) [21].

(58) Mullaperiyar Environmental Protection Forum (n 56) [21].

(59) (2011) 13 SCC 344.

(60) State of Himachal Pradesh (n 59) [89].

(61) State of Himachal Pradesh (n 59) [92].

(62) State of Himachal Pradesh (n 59) [93].

(63) Kuldip Nayar (n 2).

(64) Kuldip Nayar (n 2) [30].

(65) Kuldip Nayar (n 2) [70].

(66) Kuldip Nayar (n 2) [155].

(67) Kuldip Nayar (n 2) [288].

(68) Kuldip Nayar (n 2) [287].

(69) Kuldip Nayar (n 2) [50]–[51].

(70) Constituent Assembly Debates, vol 11 (Lok Sabha Secretariat 1986) 976–77, 25 No­
vember 1949.

(71) State of West Bengal (n 1).

(72) SR Bommai (n 2).

(73) Kuldip Nayar (n 2) [63].

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The Federal Scheme

(74) Kuldip Nayar (n 2) [63].

(75) Kuldip Nayar (n 2) [71].

(76) Kuldip Nayar (n 2) [88].

(77) State of West Bengal (n 1). See also State of Karnataka (n 1).

(78) State of West Bengal (n 1) [46].

(79) State of West Bengal (n 1) [36].

(80) AIR 1963 SC 703.

(81) Gujarat University (n 80) [22].

(82) (1971) 2 SCC 261.

(83) (1971) 2 SCC 779.

(84) Harbhajan Singh Dhillon (n 83) [87].

(85) Harbhajan Singh Dhillon (n 83) [21].

(86) (1979) 4 SCC 232.

(87) (1994) 3 SCC 569.

(88) Kartar Singh (n 87) [73].

(89) (1988) 2 SCC 109.

(90) AIR 1954 SC 752.

(91) Zaverbhai Amaidas (n 90) [7].

(92) (1983) 1 SCC 177.

(93) SR Bommai (n 2).

(94) SR Bommai (n 2) [100].

(95) SR Bommai (n 2) [100].

(96) SR Bommai (n 2) [102].

(97) SR Bommai (n 2) [101].

(98) SR Bommai (n 2) [169].

(99) SR Bommai (n 2) [227].

(100) SR Bommai (n 2) [257].

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The Federal Scheme

(101) SR Bommai (n 2) [330].

(102) KC Wheare, Federal Government (2nd edn, Oxford University Press 1951) 33.

(103) CH Alexandrowicz, ‘Is India a Federation?’ (1954) 3 International and Comparative

Law Quarterly 393.

(104) Notable in this regard is the State of Tamil Nadu Report of the Centre–State Rela­
tions Enquiry Committee 1971 (The Rajamannar Committee Report).

(105) Ministry of Home Affairs Notification No IV/11017/1/83-CSR dated 9 June 1983.

(106) Ministry of Home Affairs Notification (n 105).

(107) Administrative Reforms Commission, Report of the Study Team on Centre–State Re­
lationships (Manager of Publications 1968).

(108) ‘Report of the Commission on Centre–State Relations’ <http://

interstatecouncil.nic.in/ccsr_report.html>, accessed October 2015.

Mahendra Pal Singh

Mahendra Pal Singh is a Professor at the Centre for Comparative Law, National Law
University, New Delhi.

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