Traditionally constitution may either be unitary or federal. Regarding the nature of the constitution of India there is difference of opinion among the expert of constitution. One view is that it is a Quasi Federal Constitution having more unitary features than federal. Another view is about federal nature. The view of the constitution maker is that it is federal constitution. Dr. Ambedkar, Chairman of the Drafting Committee of Constitution observed that ” I think it is agreed that our Constitution notwithstanding the many provisions of which are contained in it whereby the centre has been given powers to override the states nonetheless, it is a federal constitution” ¹
What is federal constitution ?
According to Prof. K. C.Wheare” Federal principle in a Constitution means the method of dividing powers so that the general and regional government are each within a sphere co-ordinate and independent. Both the federal and regional government are co-ordinate and independent in their spheres and not subordinate to one another” ²
What is unitary Constitution ?
In Unitary Constitution the national government is more powerful than the state government.
To find out the nature of constitution of India we must analyse the provisions of the constitution.
Federal features of Constitution
A federal constitution must have following features.
(1) Distribution of power
(2) Supremacy of constitution
(3) A written constitution
(5) Authority of court
Indian constitution possesses all the essential features of a federal constitution as mentioned above. There is specific distribution of power between the union and state governments. Part XI ( article 245 to 255) read with schedule seven deals with distribution of power between central and state governments.
The federal principle of supremacy and written constitution is also available in constitution of India it is written and supreme. The federal features of constitution can not be altered without the consent of the state by making an amendment by majority .
The constitution provides the supremacy of the constitution, there is provision for the supreme court. Chapter IV of Part V Articles 124 to 147 deals with Union Judiciary and Chapter V of Part VI Article 214 to 232 deals with State judiciary.
Unitary features in Constitution of India
Besides above federal features of the constitution,the constitution of India have some provisions on the basis of which some scholar hesitate to say it pure federal constitution. These provisions are as follow :-
Appointment of governors
Part VI, Articles 155 and 156 of the constitution of India provides appointment and term of office of governor. According to article 155 ” The governor of a state shall be appointed by the President by warrant under his hand seal.” Article 156 provides that the governor shall hold office during the pleasure of the President.
Reservation of bill by governor for consideration.
Article 200 and 201 of the constitution provides that when a Bill has been passed by the Legislature of state, it shall be presented to governor and governor shall declare either he assents to the bill or withholds assents or that he reserves the Bill for consideration of President.
Parliament’s Power to legislate in the national interest.
According to Article 249 if the council of states passes a resolution by 2/3 majority of the members present and voting that it is necessary or expedient in the national interest that the parliament should make laws with respect to any matters enumerated within state law. This provision makes the state in subordinate position.
There are three type of emergency in the Constitution . Article 352 provides emergency caused by war or external aggression or armed rebellion. Article 356 provides emergency due to failure of constitutional machinery in state and third type of emergency is financial emergency provided under article 360. When the emergency is proclaimed under article 352, the normal distribution of power between the centre and state given under under schedule undergo a vital change. parliament is empowered to make laws with respect to matters given in state List.The centre is empowered to give direction to any state matter which the state executive may exercise.The president may by order direct that all or any of the provisions of Articles 278 to 279 relating to distribution of revenue between the centre and state shall take effect with such exception or modification as it thinks fit.Thus the basic feature of federal government, distribution of powers between the centre and and state, is completely suspended during the emergency. In this way constitution works as unitary.
The Supreme Court in case of State Of West Bengal vs Union Of India 1964 SCR (1) 371 has observed that constitution of India is not a purely federal constitution but Honorable Justice Subba Rao in his dissenting opinion observed that originally the constitution is federal.
Justice Beg in case of State of Karnataka v. Union of India has supported the view of Justice SubbaRao.
Similarly Justice Madan in case of Central Inland Water Transport Corporation v. Brajonath Ganguly has also supported the view of Justice SubbaRao.
Prof. K.C. Wheare opines that Constitution of India is not purely a federal constitution it is a Quasi Federal. According to Prof. Ivor Jennings ” Constitution is neither purely federal nor purely unitary but it is combination of both” Dr. Ambedkar supports the view of Jennings and says that Constitution of India in normal situation is a federal constitution but in emergency situation it behaves like unitary constitution .
In short the constitution of India is neither purely federal nor purely unitary, it adopts the medium way in certain circumstances it is federal and sometimes it is unitary.”It enshrines the principle that in spite of federalism, the national interest ought to be paramount. Thus the Indian constitution is mainly federal with unique safeguards for enforcing national unity and growth”