PRESENTING BEFORE YOU ALL

Constitutional Law Project by

SALMAN HUSSAIN

CHALLENGES TO

FEDERALISM

FEDERALISM• Latin word “Foedus” means ‘treaty’ or

‘covenant’Origin

• Federalism is a system of government in which the power is divided between a central authority and various constituent units of the country.

Meaning

• Distribution of powers (Dual-polity)• Written-Constitution• Supremacy of the Constitution• Rigidity of the Constitution (Non unilateral change)• Authority of the courts (Interpretation by Judiciary)

Component

FEDERAL COUNTRIES IN THE WORLD

FEDERALISM IN INDIA

India is a ‘holding together’ type of federation in which powers are vested in the state governments that function under the overall supervision of the union government.Three Tier System of Government • Union government • State governments • Local self government in the form of panchayats and municipalities

UNION LIST• Subject of National importance such as

defense, foreign affairs, banking, communications and currency

STATE LIST• Subjects of state and local importance

such as police, trade, commerce, agriculture and irrigation

CONCURRENT LIST

• Subjects of common interest to both such as education, forest, trade unions, marriage, adoption and succession

Part XI : Distribution of Powers between the Union and States

CHALLENGES TO INDIAN FEDERALISM

CHALLENGES TO INDIAN FEDERALISM

No Dual citizenship

Single-Constitution

In emergencies the constitution can become Unitary

No State, Except J&K, can draw its own constitution

No consent required to alter state boundaries

No state has the right to secede

DISTINCTIVE FEDERALISMThe powers of intervention in the affairs of the states given to the Central Government by the

Constitution.

Regarding the Concurrent list, Parliament enjoys an overriding authority over the State Legislatures.

Article 253 empowers the Union Parliament to make laws implementing any treaty, agreement or convention with another country or any decision made at any international conference,

association, or other body.Emergency powers of the president to declare national emergency or declaring emergency in a

state in the event of failure of Constitutional machinery.

The appointment of governors, unification of judiciary and the dependence of the States on the Centre for finance.

The power of the Union to alter the names and territory of the states, to carry out Constitutional amendments and to affect co-ordination among the States and settle their mutual disputes.

Case laws and Judicial Interpretation of Federation

West Bengal V. Union of India

• The main issue involved in this case was the exercise of sovereign-powers by the Indian states. The legislative-competence of the parliament to enact a law for compulsory-acquisition by the union of Land & other properties owned by the state & the sovereign-authority of states as distinct-entities was also examined

• The Supreme Court held that the:

• “Indian- Constitution did not propound a principle of Absolute-Federalism”. Though the authority was decentralized this was mainly due to the arduous-task of governing the large-territory.

• The Court outlined the characteristics, which highlighted the fact that the Indian-constitution is not a “traditional-federal constitution.”• Firstly, there is no separate-constitution for each state as is required in a federal-

state.• Secondly, the constitution is liable to be attend by the union parliament alone & the

units of the country i.e. the states have no power to alter it.• Thirdly the distribution of powers is to facilitate local-governance by the States &

National policies to be declared by the Centre.• Lastly, which contains internal checks & balances, the Indian constitution renders

supreme power upon the courts to invalidate any action violative of the constitution.

Recent developments in Indian-FederalismThe 73rd & 74th amendments of the Constitution in 1992 have created a third-tier of local-governments i.e. the panchayats & Municipalities

With reference to Article 356, the Supreme Court in S.R. Bommain versus union of India emphasized the federal-character of the constitution & has imposed several procedural restraints on the exercise of power by the Centre under the Art

With the installation of “Coalition-Government “ at the center since 1996 consisting of political parties ruling in different stats, the central government has always to seek the cooperation of the states

A center state commission has again been constituted in 2007 which is to look into the developments since the last commission, arising particularly in the light of globalization.

Comparative Study of Federalism

INDIACANADA

U.S.A

• The U.S constitution came into being as a result of a voluntary compact among the pre-existing states which conceded rather limited-powers to the Centre.

• Now in present context, the states in the U.S.A are co-ordinate with the central government as they are definitely-weaker the Centre.

U.S.A

• On the whole, the provinces in Canada have grater freedom of action than the other units in other federations & this has at times been inconvenient & embarrassing to the Centre, primarily in the area of foreign –relations & economic-matters.

CANADA• The Indian-federalism was not a result of a compact between several

sovereign-units but a result of “Conversion of a unitary system into a federal-system”. Here the movement has been from unity to union. From Unitarism to federalism, unlike other countries where the process has been for separate-units to come together to form the federal-union In India, it was rather the reverse process viz. “to convert a unitary constitution into a federal-constitution.

INDIA

CONCLUSIONWe can henceforth see that the Indian judiciary had interpreted the Constitution to declare India a unitary nation. This view of the apex court has lately undergone a change. The Court has recognized the fact that the framers of the Indian Constitution intended to provide a federal structure with a strong Centre, which would prevent the nation from disintegration. Dr. B.R. Ambedkar, one of the chief-architects of the Indian Const-said: “Our constitution would be both Unitary as well as Federal according to the requirements of time & circumstances.In historical as well as present context, the above statement is fully correct because: federalism is not static but a dynamic concept” it is always in the process of evolution & constant adjustments from time to time in the light of the contemporary needs the demands being made on it.

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