Much ambiguity is attached with the debate over competence and efficiency of federal system and unitary system of governance. The question of which form of government is better suited for a democracy is still contested. Besides, the uncertainty regarding the constitutional status of India also remains unresolved. Therefore, this paper attempts to study the nature of Indian Constitution, the factors and events that led to its formation and tries to answer the larger question of which form of governance is better suited for a nation in the modern world.
Federal Government v/s Unitary Government
Federalism and Unitarism are two constitutional forms of governance. In a federal system, power is shared between two levels, the central and the regional government, each level having autonomy over certain field of action, which is irrevocable. There should not be any infringements on the autonomy of the constituent units. Contrastingly, in a unitary system, the center holds the sovereign power over all affairs related to administration and can revoke local government units which are established under their sovereignty even without their consent. A written Constitution is mandatory in a federal government, which is held supreme, whereas in a unitary system, Constitution may or may not exist. A rigid constitution, independent judiciary and bicameral legislature are the defining features of a federal nation, while they are not mandatory in a unitary system of governance. In a federal nation, power is more or less diffused unlike in a unitary government where it is concentrated in the center. Countries with large territories tend to prefer federalism to unitarism as the constituents may be located far away from the center, which might affect the efficiency of governance. Further, this form of governance is better suited for nations with large population and diverse cultures, so as to preserve their ethnic and cultural traditions. Federalism is observed only to exist in a democracy and hence promote the same. Power is usually distributed between large geographical units like states, provinces and cantons, and also between smaller units like districts, municipalities and villages. Unitary system, on the other hand, is more or less like a monocracy where the center holds the sovereign power over all the important affairs.
Constitutional Status of India: Federal or Unitary?
It was a crucial moment in the history of Indian republic when the Constituent Assembly discussed whether the Constitution of India has to be federal or unitary. Ever since the implementation of the Constitution, debates continue over the nature of the same – is it federal, unitary or quasi-federal? Is it a federalized power system with a strong center or a centralized system with federal characteristics?
Under the British Raj, the Indian Empire was divided into princely states and provinces. There were about 600 princely states which enjoyed autonomy in their internal affairs, whereas those in relation to their external affairs were under the monopoly of the British Rule. The rest of the nation formed provinces which were directly ruled by British from New Delhi. Immediately after the freedom struggles against the British, there was an intense urge in the framers of the Constitution to bring together the all the divided component units of India into a single body. They found it the need of the hour to unite all the princely states which were divided by language, religion and ethnicity. Also, they thought the idea of “unity in diversity” unique and fascinating, which led to their efforts in uniting these smaller units under a single government, which would have otherwise remained divided and claimed their autonomy. They were not ready to forego the unity, even though peripheral, that was forged in the time of the freedom struggle against the British. Therefore, the attempts to devise a composite culture as a means to forge national unity, under a strong center attributed a sense of unitariness to our Constitution. Besides, attempts were also made to appreciate the individuality and autonomy of each of these constituent territories by recognizing their identities in terms of their language, religion, ethnicity and community which ascribed a federal nature too to the Constitution.
However, quite ironically, when it came to distribution of power, the framers of the Constitution tend to lean towards centralization or unitary form than federalization. Although high emphasis was attached to the individuality of the component cultures, the division of power was largely unitary in nature which itself is a threat to the autonomy of the constituents. This inconsistency in determining the nature of our Constitution put the very idea of India in danger during its framing. The issue of highest concern was that nothing would remain of the Indian republic if the princely states attached large portion of land from Hyderabad, Cochin, Punjab, and Kashmir etc. to their territories. Besides, the Constitution would also become insignificant without a strong center and its constituents. Again, without a central authority, the disputes between the ethnic, linguistic and religious minorities will remain unresolved and aggravated. All these concerns motivated the framers of the Constitution to establish a strong central government in a unitary Constitution.
However, strong federalist lenience still existed in the minds of the political leaders. There are two ways to approach a federalist mode of governance; the first being the formal incorporation of a federalist system in the Constitution and the second being the inculcation of a political culture that accepts pluralism, which is informal. The 1920’s and 1930’s saw the adoption of the latter form as the Indian National Congress represented itself in a federalist mode by accommodating and representing different political parties with their own views and approaches into its framework. Therefore, Congress transcended the realm of a political party and became a higher entity representing the whole Indian nation. The chief proponent of this ideology, Mahatma Gandhi, made an interesting comment in Young India in this regard:
Hitherto, the Congress has represented only one party, but it cannot be kept any longer as a one party organization if it is not to have seceders from it on an increasing scale from year to year. Measures must be devised whereby all parties can be represented on it and the annual assembly can retain its truly national character. (“The Congress”, Young India, January 7, 1920)
The idea of a federation is never fully realized as it cannot strictly follow its rigid principle in theory or in practice. Therefore, the institution of quasi-federation which lies in between a federal and unitary state was introduced, India being one of the best examples for it. The quasi-federal nature of Indian nation is defined by the provisions of the Articles 249, 352-60 and 371 as they clearly demonstrate how the division of powers between the center and the states are not equal. Article 371 allows special provisions to the states of Maharashtra and Gujarat whereas Article 249 bestows Parliament with the power to make legislations in matters in the State List according to national interest, which might disrupt the allocation of powers between center and the states. Besides, Articles 352, 356, and 360 imparts supreme power to the President to declare an emergency when the nation faces threat of any kind. The declaration of emergency, in fact, leads to the emergence of a complete unitary government, although for a short period of time. Besides, Article 254 of the Indian Constitution, which deals with the inconsistency of laws made by the House of Parliament and State Legislatures, also suggests the quasi-federal nature of India. Also, the power enjoyed by a High Court judge, just as any Supreme Court judge to call a law unconstitutional if found inconsistent with constitutional provisions, further implies the operation of a system which is not centralized, although not equal. Besides, the power of the Governor, who is a representative of the center in the State, to withhold a bill passed by the legislature for the consideration of the President and provides report on the failure of state machinery to the center hints at the discrepancy in power enjoyed by the two levels of government.
The recent incident of power tussle between Delhi government and Lieutenant Governor is an instance of conflict of power between the center and state. Delhi, though a union territory enjoys the status of a state and the governor is a representative of the center in state. The Lieutenant Governor Najeeb Yung has dismissed the appointment of Swati Maliwal as the new chairperson of Delhi Commission for Women (DCW) null and void. Although the AAP led state government possesses the jurisdiction and authority to appoint the next chairperson, the Lt. Governor thinks otherwise. This led to Kejriwal approaching the Supreme Court for a solution over the issue. The Supreme Court, however, gave the verdict that the power lied with the Delhi government in posting and transferring bureaucrats, appointing inquiry commissions etc. The jurisdiction of the Lieutenant Governor is restricted to matters over land, police and public order. However, the Constitution Bench led by the then Chief Justice of India, Dipak Misra had advised the Lieutenant Governor and Aam Admi Party government to showcase mature statesmanship in their mutual relationship and practice “collaborative federalism”: “Governments in their respective pursuits of development. The Union government and the State governments should endeavor to address the common problems with the intention to arrive at a solution by showing statesmanship, combined action and sincere cooperation. In collaborative federalism, the Union and the State governments should express their readiness to achieve the common objective and work together for achieving it,” observed the Constitution Bench. The court had also recommended a “continuous and seamless interaction between the Union and the State governments”. Other defining features of the quasi-federal nature of Indian republic are the existence of an All India Civil Service system, a cohesive judiciary and single citizenship for everyone. However, the sovereignty of the component states over internal affairs remains intact, which is the defining feature of a federal nation.
Keeping aside all that have been discussed above, it can be noted, quite paradoxically that it is stated clearly by the four opening articles of the Constitution that it is a unitary constitution. Krishna P. Mukerji in his article, “Is India a Federation?” says that “whatever categorization of the units of the Union and distribution of the powers between the Union and the units [may be], they are for the sake of administrative convenience, and whenever they create administrative inconvenience they may be constitutionally withdrawn, abolished or changed”. The unitary nature of the Indian Constitution is made quite evident in the Articles 3 which states that the “Parliament may by law:
- form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State;
- increase the area of any State;
- diminish the area of any State;
- alter the boundaries of any State;
- alter the name of any State.”
This Article is by its very nature unitary as it bestows with the center the sovereign power to alter the territorial features of any state. Although the provision made by Article 2 suggests that the will of the State Legislature regarding the boundary of any state will be ascertained by the President, it does not imply that the President has to function in favor of the decision made by the State Legislature. Furthermore, according to Article 4, the laws made under Article 3 and 4 “shall [not] be deemed to be amendments of [the] constitution”, which means that such laws could be passed without the procedures required for constitutional amendments. This gives the Parliament the power to reduce the whole of India into a single state, if it so wishes, without any amendment of the existing Constitution, which itself is clear evidence for the unitary nature of Indian Constitution.
Although the sovereign power is not vested with the center as in a unitary government, the presence of a center, which can intervene in the affairs of the state in times of emergency or crises, is enough not to classify India as a federation. Therefore, Indian Constitution cannot be described as purely federal or purely unitary, but an amalgamation of both. Although the terms ‘federal’ or ‘federation’ is not present in our constitution, it has imbibed all the features of a federal nation. Hence, it would be more appropriate to describe India as a ‘quasi-federal’ nation, which in the words of Professor K.C Wheare is “a unitary state with subsidiary federal features rather than a federal state with subsidiary unitary features” (Wheare 28). However, it could be said without doubt, though unitary by Constitution, India is more or less likely to be called as a federal nation than a unitary nation, as it possesses most of the essential features of a federation.
Is Federal system better than unitary system?
Debates are still going on over the efficacy and competence of federal and unitary government. These qualitatively different systems of governance cannot be compared, as each of them is suited for particular nations according to their characteristics. However, it seems that the popular choice is in favor of federal than unitary form of governance.
Unitarism is not backed by any well-defined theory unlike federalism which has a theoretical tradition to depend upon. The dominant political theory that gives federalism an upper hand over unitarism is the decentralization of power. Centralization of power, as in a unitary government, in the hands of a minority always leads to malice and corruption in administration. Good governance always comes with decentralization of power, which would include more people to participate in the legislative, executive and judicial functions of the nation, thereby ensuring transparency and promoting democracy. Also, for nations with large territory, population and diverse religious and cultural background, a decentralized mode of governance is better as it gives them the power to practice and propagate their faith without any interference from the center. Besides, decentralization of power within the political parties will reduce the inter-party and intra-party competitions. The greater the degree of intra-party competition between candidates, the more difficult it would be for the factions within the party to form a united front to contest in elections and form a government after elections, which in turn, would affect the quality of governance. Chances for such division are comparatively low in a federalist mode of governance which holds primary and fosters the relationship between constituents and their representatives, unlike a unitary model for which the relationship between constituents and their national party is supreme. However, it would be more politically correct to associate federalism with non-centralization than decentralization, as it presupposes the presence of a center which is absent in a federation.
Another aspect of constitutional federalism lies in multiple veto points which will require the assent of larger set of people with diverse interest to agree upon a policy. Besides, in a federal system of governance, government is brought closer to people unlike in a unitary system, where a distant center holds power over the affairs of the whole nation. The elected representatives feel more obliged to work according to local interests in a federal system, unlike those in the centralized system who disappear from their constituencies once elections are over. They will be more responsive to local concerns and needs and more democratic in some sense. The healthy competition among the subnational units in a federation would lead to the framing and implementation of better policies, thereby enhancing the bureaucratic efficiency. Another interesting connection can be drawn between federalism and human rights. Although a democracy can exist both in a federal and unitary system, a federal nation can only exist in a democracy. Also, most of the highly recognized federal nations such as USA, Canada, Switzerland and Australia have decent human rights record. Interestingly, they are democracies too. Democracy, therefore acts as a link between federalism and human rights and implies that human rights are valued and respected better in a federation. No democracy has changed its constitutional status from federalism to unitarism, which itself is the proof that federalism is always the better option for a democratic nation.
Shift of focus towards Cooperative federalism
No matter what the benefits of federalism are, concerns still remain as the competition between the independent constituents might turn detrimental to the whole administrative structure. A complete autonomy over the legislative, administrative and judicial functions of the states might lead them to go separate from the nation and form an independent nation on their own. This would seriously disrupt the harmony and unity of the nation. In the case of India, whose very spirit lies in “unity in diversity”, such a predicament is unthinkable. Therefore, cooperative federalism, also known as ‘marble-cake federalism’ was introduced as a solution for this quandary. Unlike classical theory of federalism where the center and states exist independently, in cooperative federalism, federal, state and local governments co-exist in continuous cooperation and negotiation to solve common issues. Although it maintains a strong central government, it does not alleviate the status of regional governments. Therefore, it can be said without doubt that the political future of federalism is headed towards cooperative federalism in its true sense.
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