In
the words of Immanuel Kant, “The problem of setting up a state can be solved by
a nation of devils, so long they have understanding and constitution which pits
opposing factions against each other by a system of checks and balances”. The
words of Kant directly focus on the power and importance of ‘The Constitution’. The Constitution is a document which is a reflection
of society; It is an introduction of a country to the other world. It is the
first law of the country or fundamental document of a land from which all other
laws gain their authority. I think Kant was a little unlucky to witness the
world’s bulkiest constitution, ‘The Indian constitution’. It is also called as
a constitution of constitutions because it adopted the provisions from the Constitutions
of various other countries. The Indian constitution, in terms of dealing with
the state, follows a unique structure of the quasi-federal and quasi-unitary system
as stated by Justice Ahmadi in S.R. Bommai v. U.O.I.[1],
unlike the constitution of the USA which follows a structure of pure federal
system. Now, the term that must be defined before proceeding further is ‘Federalism
or Federal system’.
Federalism:
The word ‘federal’ is derived from the Latin term ‘Foedus’ which means,
“covenant”. It is a covenant which embodies ideas of promise, obligation, and
undertaking. Thus, the federal system is the covenant of reciprocating bindings
between separate states to form a common union. It is a system of political
organisation in which separate states unite together to form a common
integration of politically governing Union. In the federal system, both
separate states and union integrate in such a way that both have their own
distinct identities which is indestructible by the other. Some essential
features of federalism among various others, are as follows:
· Written
Constitution: The integrated Union must have a written constitution, which
defines the relationship, terms of separation and sharing of power between the
separate states and the Union.
· Domination
of constitution: The power of union and states must be subject to provisions of
the constitution and neither union nor states can destroy or nullify the
constitution.
· Division
of Power: There must be a division of power between unions and states. Both
cannot override each other’s powers.
· Rigidity:
The must be no constitution amending power in relation to provisions of
separation of powers.
· Independent
Judiciary: There must be an independent judiciary regulating and upholding the supremacy
of the Constitution.
Indian
perspective:
The
question to be discussed is about the character of federalism in the Indian
Constitution. It is clear from the abovementioned statements that the Indian
constitution also follows the principles of federalism but up to a limited extent.
This character of Indian federalism can be narrated through various decisions
given by the Supreme Court. Some of them are:
· State
of West Bengal v. U.O.I.[2]:
In this case, while deciding the question on the constitutionality of the power
of parliament to enact a law for compulsory acquisition by the Union of land and
other properties, the court held that the Indian constitution is not truly
federal in character. The division of power between the Centre or union and
state is based on the nature of matters, i.e. the matters concerned with the
regulation of local problems are vested in the state and another residue,
especially relating to the economy, industry and commercial unity of the country
is vested in the union.
· State
of Rajasthan v. U.O.I.[3]: In this case, the court held that the Indian
constitution is federal. But the principle of federalism is diluted by the need
for progress and development which has to be nationally integrated, and
politically, economically and socially coordinated and uplifted in such a way
that the state cannot stand in the way of the Centre while directing legitimate
and planned development of the country through Centre made policies.
· State
of Karnataka v. U.O.I.[4]:
The court held that the Indian constitution is a quasi-federal, not pure
federal polity. Though the legislative and executive powers are vested
separately between the Centre and state this division also runs through the
hands of the Centre.
· Kesavananda
Bharti v. State of Kerala[5]:
The parliament has the power to amend the constitution but cannot alter the
basic structure of the constitution like democracy, secularism, separation of
powers, federalism etc.
· S.R.
Bommai v. U.O.I.[6]:
Many different opinions regarding the concept of federalism were given by
different Judges of the Supreme court. But all of them had one thing in common it
is not a pure federal but the Centre has no power to destroy the principle of
division of power between state and Centre and arbitrarily override the
provisions of the constitution which secure the identity of the state. It was a
case regarding the use of Emergency Powers under Article 356 of the constitution
of India.
· Kuldip
Nayar v. U.O.I.[7]:
Federalism is a basic structure of the constitution of India but not in a
traditional sense. India is a federal state with a strong Centre.
From these, it can be stated that the court has followed a pattern of selective interpretation while interpreting the federal structure. They have given a new dimension to this concept as on one side when the question comes to the development and economy the court took the view of quasi-federal with a strong Centre but when there is a situation of overriding the constitutional power of the state, the court restricts the powers of strong Centre, as done in the case of S.R. Bommai v. U.O.I.
The
next question arises, How ‘strong’ is this ‘centre’ under the Constitution in
terms of the Union-state relationship? Does it have the power to alter or
dissolve the identity of a state?
In
India, the character of the union-state relationship can be defined through the
phrase, “state can be destructed but union is indestructible”.
This can be inferred through the provisions of Articles 3 and 4 of the Indian
constitution, thus read as:
Article
3: “Formation of new States and alteration of areas, boundaries or names of
existing States: Parliament may by law
(a) 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;
(b) increase
the area of any State;
(c) diminish
the area of any State;
(d) alter
the boundaries of any State;
(e) alter
the name of any State;
Provided
that no Bill for the purpose shall be introduced in either House of Parliament
except on the recommendation of the President and unless, where the proposal
contained in the Bill affects the area, boundaries or name of any of the
States, the Bill has been referred by the President to the Legislature of that
State for expressing its views thereon within such period as may be specified
in the reference or within such further period as the President may allow and
the period so specified or allowed has expired Explanation I In this article,
in clauses (a) to (e), State includes a Union territory, but in the proviso,
State does not include a Union territory Explanation II The power conferred on
Parliament by clause (a) includes the power to form a new State or Union
territory by uniting a part of any State or Union territory to any other State
or Union territory.” [8]
Article
4(2) states that, “No such law as made under article 2 or 3 shall be deemed
to be an amendment of the Constitution for the purpose of article 368”.[9]
These
provisions have always been the root of controversies regarding the federal
structure of India. The main reason is the ‘Proviso’ added at the end of Article
3, which talks about the reference to be made by the President about any Bill, affecting
the area, boundaries or name of any State, to that very State Legislature for
expressing its views on the Bill within the time specified or as the President
may allow.
The question here arises, whether the views of State have some consideration, as the State has in USA. Under Article 4 Section 3 of The Constitution of the USA, which states that ‘no new state can be formed or erected within the jurisdiction of another State, or made by combining two or more States or parts of States, by Congress without the consent of the State which is to be effected’[10]. Like in the case of the splitting of Virginia state, forming Virginia and West Virginia.
Case
laws:
The
question regarding the power of Parliament under Article 3 of the Indian
Constitution, first came in the case of Babulal Parate v. State of Bombay[11]
In
this case, there were three issues that were highlighted by the Supreme Court
of India and upon these three issues, only the Judgement was passed. The facts of
the case state, that a commission was appointed on December 1953 for the
reorganization of the States of the Indian Union so that there could be the
welfare of the people of the country. Accordingly, the commission submitted its
report in April 1956 and consequently a Bill was introduced in the Lok Sabha as
The States Reorganization Bill (No. 30 of 1956). There were three clauses in
the bill (clauses 8, 9 and 10) that contained the proposal to form three
separate units Firstly the Union territory of Bombay, the State of
Maharashtra which included Marathwada, Vidarbha and, The State of Gujarat and
that included Saurashtra and Cutch. Further as required by the proviso of
Article 3 of the Indian Constitution, the said Bill was introduced in the Lok Sabha
on the recommendation of the President. This particular bill was amended by the
joint select committee of Lok Sabha and Rajya Sabha wherein it was passed by
both houses of the parliament and got President’s assent in August 1956.
While delivering the judgement the Supreme Court started by reading down Article 3 of the Indian Constitution and said that the substantive part of the Article gives the power to the Parliament to make the law with respect to the clauses from (a) to (e) of the said article. The power provided under Article 3 allows the Parliament to make law upon the area of the state where such area can be increased or diminished and alter the name of the State. The main controversy which the court has to make the clarification and interpretation lies in the proviso part which provides for the conditions to exercise such power. While reading the proviso part which states that “no bill for the purpose shall be introduced in either house of the parliament except on the recommendation of the President and unless, where the proposal contained in the bill affects the area, boundaries or name of any of the States, the bill has been referred by the President to the Legislature of that state for expressing its views thereon.” The court made two observations related to the proviso of Article 3 of the Constitution and said that firstly, if the bill has to be introduced for such purpose, it has to be done on the recommendation of the President and secondly, where the proposed bill affects the area or boundary of the state, such bill has to be referred by the President to the State Legislature of the State for taking its views where such alteration is being affected. The court also made certain other clarifications on the point that the period under which the views of the State legislature have to be obtained must be specified by the President. Further to extend the period for taking such views it has to be done by the President only. If the period so specified is expired and the state legislature does not express its views then it was said by the court that the second condition specified in the proviso will be satisfied even though the state's views are not taken. The court further elaborated the point that the intention of the proviso is to take the views of the state legislature upon such matter and if the same is not done by the state legislature within the time allotted then it will not invalidate the introduction of the Bill in the parliament. It was also clarified by the court that there was nothing as such mentioned in the proviso which indicates that the parliament shall act on the views given by the state legislature. The sole burden is upon the parliament on whether to proceed with the bill or not. It is to be noted here that the President only has to give the proposal of the bill to the state legislature. If the amendment is moved thereby in the parliament, and it is accepted then there is no need to freshly take the views upon such amendment from the state legislature and no new bill is to be introduced. Since this has not been provided in the second part of the proviso. It was also pointed out that if the proviso required for the fresh bill to be introduced then it would result in an interminable process.
The court was of the view that the language of the proviso is very clear and it has to be read with ordinary and plain language. It was an accepted connotation that the proviso contained the condition only that the proposal had to be given to the state legislature. Thus, it has no drastic effect and the court would consider that a fresh reference has to be made every time a new amendment is moved and accepted into the parliament. The case is very clear that the power of parliament is absolute with regard to the identity of a state. And there is no specific reason and interpretation about, why the views of the State are not binding upon the Parliament. The court has interpreted that consultation doesn’t mean consent and followed the strict literal interpretation of the ‘Proviso’ and doesn’t bother about the views of the State.
The
same views were also expressed by the Supreme Court in the case of Pradeep
Chowdary v. U.O.I.[12], where while discussing the
scope of Article 3, the court held that the Parliament of India represent the whole
of the country and has exclusive power to alter, amend or establish the
boundaries of the states. The legislatures concerned only have the right to express
their views on the act of Parliaments. The views of the State Legislature are
not binding upon the Parliament and not necessary for Parliament to invoke
Constitutional amendment provisions for this purpose. Also, there is no need to
give extended meaning to the term ‘States’ or doctrinaire consideration to the
rights of State, as none of the Indian State was an independent State like
States in the US and other federal structures.
Analysis:
The
formation of the Union of India was created by the integration of diverse cultures
and regions. The situation before Independence in India was that there were many
small Princely States who had their own notion of freedom and development. The
Constitution gave them a sense of integrated feeling, ‘Indian’ but vis-à-vis
created provisions for their own identities and interests by separately
creating provisions for States and giving these States the power to govern in
their own respective territories with autonomy under the mandate of the Constitution
as mentioned in the List 2, State list of Seventh Schedule of Constitution of
India. Even after the 73rd and 74th Constitution amendments,
the two-tier governance system was further divided into three-tier system by
creating Panchayat and Municipal level system. Each system has its own autonomy
and dignity which should be maintained. The institutions cannot give their best
under the uncertainty of their survival.
The
sole purpose of democracy is the direct governance and participation of the
people in policymaking. Democracy doesn’t function on the majoritarian
principle. In a democracy, the views of every section are equally important and
should be represented. Now, one can say that Parliament also represent the
people of the country. But as we know the representation in the Parliament is
not equally distributed among the States, in the 17th Lok Sabha
Elections,2019, the total count of seats in State wise list is 528 seats
distributed within 29 states in which Uttar Pradesh has a share of 80 seats,
Maharashtra: 47, Bihar: 39, West Bengal: 42 and on the other hand Meghalaya,
Sikkim, Nagaland only have one each seats. In the case of Rajya Sabha, i.e. `The
Council of States the distribution of seats is in accordance with Schedule 04
of The Constitution of India. Now, one can counter that the distribution is in accordance
with the population and constituency-wise representation. But this question can
be dealt with comparative analysis of the US Constitution and the United Nations
Organization. The USA Constitution under Article 1 Section 2, provides that the
“House of Representatives shall be composed of members representing several
States. The number of Representative shall not exceed one for every thirty
thousand people, but every State should have at least one Representative”. But
under Article 1 Section 3, it also states that “Senate shall be composed of two
Senators from each State”. Thus, the Senate which represents the interests of
States in the Parliament of the USA, perform the similar function of Council
States in the Indian Constitution. Likewise, the United Nations Charter under
its Chapter 4: The General Assembly in Article 9 states that “The General Assembly
shall consist of all members of the United Nations and each member shall not
have more than 5 members”. The both above-stated documents, the USA
Constitution and UNO Charter are treated as symbols of modern-day democracy and
it can be stated that these documents have given equal representation to the
‘Political Societies’ which has accepted them to safeguard their interest
within the common integration.
The
next question that can be made is that India is a Union and if States have been
given autonomy over their territory and its identity then it will be difficult
for the Union to control them and some States will become stronger than others
States and in no way any State will give consent to its disintegration or
division. However, this cannot be fully supported because it can be witnessed in
the case of Virginia and West Virginia, where Virginia State accepted the
division to form West Virginia, and Massachusetts accepted the formation of
Maine[13]. The States can only be
formed or dissolved, whenever there is a will of people who represent it.
It can be asserted that provisions giving arbitrary power to unions should be controlled. From this, I do not mean that whole provisions should be changed to develop a pure Federal structure like that of the USA by changing the concept of representation or giving full autonomy to States. But in the absence of a system of checks in the constitution of India upon the power of Parliament about how to and when to use these powers, it is the duty of the Courts to interpret these provisions in such a way that a majoritarian system should not defeat the principles of democracy. Because a ‘Politically evolved’ society cannot be destructed against its will.
The debate regarding this issue is again in the Supreme Court. Now, let us wait and see what will be the fate of the erstwhile State of J&K.
By: Kaavish.
[1]
AIR 1994 SC 1918
[2]
AIR 1963 SC 1241
[3]
AIR 1977 SC 1361
[4]
AIR 1978 SC 68
[5]
AIR 1973 SC 1461
[6]
Supra1
[7]
AIR 2006 SC 3127
[8]
The Constitution of India, 1950
[9]
Ibid.
[10]United
State of America: Constitution, 1787
[11]
AIR 1960 SC 51
[12] (2009)
12 SCC 248
[13] https://townline.org/a-look-at-what-maine-was-like-before-it-became-a-state/
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