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constitutional_law:concept_of_federalism

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Concept of Federalism

The term ‘Federalism’ originate From the Latin word “Foedus” meaning ‘treaty’ or ‘covenant’. Some free states bound together by agreement constitute a Federal-state.

Federalism is a system of government of a country under which there exist simultaneously a federal or central government (legislature & executive) & several state legislatures & government as contrasted with a unitary state both federal & state governments drive their powers from the federal-constitution both are supreme in particular sphere & both operate directly on the people.

Definition

Federation is a political-concept in which a group of members are bound together by ‘covenant’ with a governing representative head.

A system of National-government in which power is divided between a central authority & a number of regions which delimited self-governing authority.

A system of governance in which distribution of power of constituent-units is ensured by a written-Constitution, having independent judiciary to resolve, state of local-levels. Under the principal of government, power & authority is allocated between the national & local-government units, such that each unit is delegated a sphere of power & authority only it can exercise while other powers must be shared.

Constitutional-Intent

Being aware that notwithstanding a common cultural heritage, without political unity, the country would disintegrate under the pressure of Fissiparous forces, the constituent Assembly addressed itself to the immensely complex-task of devising a union with a strong centre. In devising the pattern of the central -state relations they were influenced by the Constitution of Canada & Australia which have a parliamentary-form of government. The Government of India act, 1935 was also relied upon significant changes. The Constitution cannot be called ‘Federal’ or ‘Unitary’ in the ideal-sense of the terms.

According to article 1 of the Constitution:

“India, i.e. Bharat will be the Union of States”.

The Constitution, thus postulated India as a union of states & the consequently, the existence of Federal-structure of governance for this union of states becomes a basic structure of the union of India.

Necessity of Federalism:

Emergence of different-set of states

Before independence, the earliest from of political-organization was not federal but unitary. But after independence, the pressure of economic, political & social-circumstances which compelled unitary-states (generally Monarchical) to enter into alliance with other states for meeting common problems which initially related to ‘defence’. Require a special-type of government which leads to federalism.

Scientific-development

Scientific & technological-developments & increased economic interdependence have changed the scenario of the past, which brought the emerging-states (independent) on the same- platform. The exchange of Scientific-technologies between the development of these states. Scientific & technological-development brought a revolution during the era of federalism.

End of British-Colonies

In India, the historical-process to create the federal-system was different. For long, before1935, British India has been administered on a unitary basis. There existed a unitary-system. But after the end of British-colonies, the unitary system was replaced by a federal-system. The present federal-system was built on the foundation of the 1935 system.

The past history of India establishes that in the absence of a strong Central-Government. the country soon disintegrates. This belief was strengthened by the recent-portion of the country. Therefore adequate precautions have to be taken against any such future contingency by making the centre strong in Indian-Federalism.

Components of a Federal-Constitution

The legal-test of federalism, when analyzed, leads to the following broad features of a federal-Constitution.

Distribution of powers (Dual-polity)

An essential feature of every federal-Constitution is the distribution of powers between the central-government & the governments of the several-units forming the federations.

Federation means the distribution of the power of the state among a number of coordinate bodies, each originating in and controlled by the Constitution. (Dicey)

Written-Constitution

A federal-state derives its existence from the Constitution, just as a corporation derives its existence from the grant or statute by which it is created. Every power (executive, legislature or judicial) whether it belongs to the central, or to the component-states, is subordinated to & controlled by the Constitution. Therefore, a federal-state requires a written-Constitution for the obvious reason that in order to be workable & stable & the limitations, must be precisely defined by written-instrument.

Supremacy of the Constitution

This means that the Constitution should be binding on the federal & state-government. Neither of the two governments should be in a position to override the provisions of the Constitution relating to the power and status which each is to enjoy.

Rigidity of the Constitution: - Non unilateral change

A natural corollary of a written-Constitution is its rigidity. A Constitution which is the supreme-law of the land must also be rigid. In a rigid Constitution, the procedure of amendment is very complicated & difficult. This does not mean that the Constitution should be legally unalterable. The Constitution provides a process for changing its provisions called “Amendment’. It simply means that the procedure of amending the Constitution should not remain exclusively with either the centre or state-Governments means “No Unilateral-change”.

Authority of the courts - Interpretation by Judiciary

The distribution of powers made by the Constitution must be guarded by the judiciary. Which is to interpret the Constitution as the ‘Fundamental-law’ of the lands to enforce its provisions against both the federal and Regional-governments and to invalidate any of their acts which transgresses the limitations imposed upon them by the Constitution.

Distinctive Federation

The federal polity, which our Constitution establishes, contains, as compared with other federal-constitutions, several distinctive features. These are:

  1. No Dual citizenship
  2. Single-Constitution
  3. In emergencies the Constitution can become Unitary
  4. Minimizes Rigidity & Legalism:

Legislative Relations

Article 245 : Extent of laws made by Parliament and by the Legislatures of States

Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State.

No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation.

Article 246 : Subject-matter of laws made by Parliament and by the Legislatures of States

Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the “Union List”).

Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the “Concurrent List”).

Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the “State List”).

Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List.

Article 247 : Power of Parliament to provide for the establishment of certain additional courts

Notwithstanding anything in this Chapter, Parliament may by law provide for the establishment of any additional courts for the better administration of laws made by Parliament or of any existing law with respect to a matter enumerated in the Union List.

Article 248 : Residuary powers of legislation

Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List.

Such power shall include the power of making any law imposing a tax not mentioned in either of those Lists.

Article 249 : Power of Parliament to legislate with respect to a matter in the State List in the National interest

Notwithstanding anything in the foregoing provisions of this Chapter, if the Council of States has declared by resolution supported by not less than two-thirds of the members present and voting that it is necessary or expedient in the national interest that Parliament should make laws with respect to any matter enumerated in the State List specified in the resolution, it shall be lawful for Parliament to make laws for the whole or any part of the territory of India with respect to that matter while the resolution remains in force.

A resolution passed under clause (1) shall remain in force for such period not exceeding one year as may be specified therein: Provided that, if and so often as a resolution approving the continuance in force of any such resolution is passed in the manner provided in clause (1), such resolution shall continue in force for a further period of one year from the date on which under this clause it would otherwise have ceased to be in force.

A law made by Parliament which Parliament would not but for the passing of a resolution under clause (1) have been competent to make shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the resolution has ceased to be in force, except as respects things done or omitted to be done before the expiration of the said period.

Article 250 : Power of Parliament to legislate with respect to any matter in the State List if a Proclamation of Emergency is in operation

Notwithstanding anything in this Chapter, Parliament shall, while a Proclamation of Emergency is in operation, have power to make laws for the whole or any part of the territory of India with respect to any of the matters enumerated in the State List.

A law made by Parliament which Parliament would not but for the issue of a Proclamation of Emergency have been competent to make shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the Proclamation has ceased to operate, except as respects things done or omitted to be done before the expiration of the said period.

Article 251 : Inconsistency between laws made by Parliament under articles 249 and 250 and laws made by the legislatures of States

Nothing in articles 249 and 250 shall restrict the power of the Legislature of a State to make any law which under this Constitution it has power to make, but if any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament has under either of the said articles power to make, the law made by Parliament, whether passed before or after the law made by the Legislature of the State, shall prevail, and the law made by the Legislature of the State shall to the extent of the repugnancy, but so long only as the law made by Parliament continues to have effect, be inoperative.

Article 252 : Power of Parliament to legislate for two or more States by consent and adoption of such legislation by any other State

If it appears to the Legislatures of two or more States to be desirable that any of the matters with respect to which Parliament has no power to make laws for the States except as provided in articles 249 and 250 should be regulated in such States by Parliament by law, and if resolutions to that effect are passed by all the Houses of the Legislatures of those States, it shall be lawful for Parliament to pass an Act for regulating that matter accordingly, and any Act so passed shall apply to such States and to any other State by which it is adopted afterwards by resolution passed in that behalf by the House or, where there are two Houses, by each of the Houses of the Legislature of that State.

Any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed or adopted in like manner but shall not, as respects any State to which is applies, be amended or repealed by an Act of the Legislature of that State.

Article 253 : Legislation for giving effect to international agreements

Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.

Article 254 : Inconsistency between laws made by Parliament and laws made by the Legislatures of States

If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.

Where a law made by the legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.

Article 255 : Requirements as to recommendations and previous sanctions to be regarded as matters of procedure only

No Act of Parliament or of the Legislature of a State, and no provision in any such Act, shall be invalid by reason only that some recommendation or previous sanction required by this Constitution was not given, if assent to that Act was given -

  • where the recommendation required was that of the Governor, either by the Governor or by the President;
  • where the recommendation required was that of the Rajpramukh, either by the Rajpramukh or by the President;
  • where the recommendation or previous sanction required was that of the President, by the President.

Administrative Relations

Article 256 : Obligation of States and the Union

The executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State, and the executive power of the Union shall extend to the giving of such directions to a State as may, appear to the Government of India to be necessary for that purpose.

Article 257 : Control of the Union over States in certain cases

The executive power of every State shall be so exercised as not to impede or prejudice the exercise of the executive power of the Union, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose.

The executive power of the Union shall also extend to the giving of directions to a State as to the construction and maintenance of means of communication declared in the direction to be of national or military importance: Provided that nothing in this clause shall be taken as restricting the power of Parliament to declare highways or waterways to be national highways or national waterways or the power of the Union with respect to the highways or waterways so declared or the power of the Union to construct and maintain means of communication as part of its functions with respect to naval, military and air force works.

The executive power of the Union shall also extend to the giving of directions to a State as to the measures to be taken for the protection of the railways within the State.

Where in carrying out any direction given to a State under clause (2) as to the construction or maintenance of any means of communication or under clause (3) as to the measures to be taken for the protection of any railway, costs have been incurred in excess of those which would have been incurred in the discharge of the normal duties of the State if such direction had not been given, there shall be paid by the Government of India to the State such sum as may be agreed, or, in default of agreement, as may be determined by an arbitrator appointed by the Chief Justice of India, in respect of the extra costs so incurred by the State.

Article 257 A : Assistance to States by deployment of armed forces or other forces of the Union

Article 258 : Power of the Union to confer powers etc.. on States in certain cases

Notwithstanding anything in this Constitution, the President may, with the consent of the Government of a State, entrust either conditionally or unconditionally to that Government or to its officers functions in relation to any matter to which the executive power of the Union extends.

A law made by Parliament which applies in any State may, notwithstanding that it relates to a matter with respect to which the Legislature of the State has no power to make laws, confer powers and impose duties, or authorise the conferring of powers and the imposition of duties, upon the State or officers and authorities thereof.

Where by virtue of this article powers and duties have been conferred or imposed upon a State or officers or authorities thereof, there shall be paid by the Government of India to the State such sum as may be agreed, or, in default of agreement, as may be determined by an arbitrator appointed by the Chief Justice of India, in respect of any extra costs of administration incurred by the State in connection with the exercise of those powers and duties.

Article 258A : Power of the States to entrust functions to the Union

Notwithstanding anything in this Constitution, the Governor of a State may, with the consent of the Government of India, entrust either conditionally or unconditionally to that Government or to its officers functions in relation to any matter to which the exclusive power of the State extends.

Article 259 : Armed Forces in States in Part B of the First Schedule

Article 260 : Jurisdiction of the Union in relation to territories outside India

The Government of India may be agreement with the Government of any territory not being part of the territory of India undertake any executive, legislative or judicial functions vested in the Government of such territory, but every such agreement shall be subject to, and governed by, any law relating to the exercise of foreign jurisdiction for the time being in force.

Article 261 : Public acts records and judicial proceedings

Administrative relations between Centre and State

Full faith and credit shall be given throughout the territory of India to public acts, records and judicial proceedings of the Union and of every State.

The manner in which and the conditions under which the acts, records and proceedings referred to in clause (1) shall be proved and the effect thereof determined shall be as provided by law made by Parliament.

Final judgments or orders delivered or passed by civil courts in any part of the territory of India shall be capable of execution anywhere within that territory according to law.

Article 262 : Adjudication of disputes relating to waters of inter-State rivers or river valleys

Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-State river or river valley. Notwithstanding anything in this Constitution, Parliament may by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause (1).

Article 263 : Provisions with respect to an inter-State Council

If at any time it appears to the President that the public interests would be served by the establishment of a Council charged with the duty of -

  • inquiring into and advising upon disputes which may have arisen between States;
  • investigating and discussing subjects in which some or all of the States, or the Union and one or more of the States, have a common interest; or
  • making recommendations upon any such subject and, in particular, recommendations for the better co-ordination of policy and action with respect to that subject, it shall be lawful for the

President by order to establish such a Council, and to define the nature of the duties to be performed by it and its organisation and procedure.

Created on 2020/10/19 23:13 by • Last modified on 2021/01/27 06:52 by LawPage