FEDERALISM AND DISTRIBUTION OF POWERS

This article has been written by Anushree Jha, University of Mumbai, Thane Sub-Campus.

Abstract:-

This comprehensive research article contains a detailed examination of the concept of ‘Federalism and Distribution of Power’ within the Indian context through a keen analysis of the Indian Constitution. Additionally, This research endeavour seeks to explain and analyse its significance while delving into important differentiations between ‘Federalism’ and ‘SOP’ seeking to provide a valuable source of knowledge for legal practitioners, law enthusiasts and students alike.

It is imperative to note that when distinct groups of people choose to live within a predetermined constitutional framework, they anticipate equal economic and social opportunities as well as a certain measure of local autonomy[1]. Under a federal form of government, which shares authority at the municipal, regional, and national levels, elected officials are empowered to develop and carry out policies that are appropriate for local and regional needs[2]. They work together with the national government and each other to handle the many problems the nation faces. Thus, Federalism is the practice of two or more freely elected governments sharing authority and decision-making authority over the same people and territory[3]. This encourages civic responsibility, public participation, and government accountability to the people by granting local governments the power to enact and enforce local laws.

Keywords:- Federalism, Separation of Powers (SOP), Division of Powers, Indian Constitution,  Seventh Schedule,  Basic Structure Doctrine

Introduction:-

According to the Oxford Concise Dictionary of Politics and International Relations, “Federalism” is a political system’s organisational principle that emphasises vertical power-sharing across different levels of governance, such as centres and states. It also includes the integration of different territorial and socio-economic units, and cultural and ethnic groups in one single polity. The term ‘federalism’ originates from the Latin word foedus, which means “compact, covenant, agreement”[4].

Conversely, The Oxford Advanced Learner’s Dictionary defines federalism as, “A federal system of government and belief in a federal system of government”[5].  A federal form of government is distinct from the concept of ‘Separation of powers’, however, both of the concepts often work together to promote good governance in a legal and political system.

In reference to the scope of ‘SOP’, it emphasises the horizontal division of power (within each level of government), whereas ‘federalism’ emphasises the vertical division of power (between various levels of the government) with the primal goal of satisfying
a range of interests and also to geographically distribute power[6].

Differentiation from Separation of Powers (SOP):-

In simple words, “Separation of powers” is a doctrine which distributes authority between the organs of government- the legislative (making laws), the executive (enforcing laws), and the judicial (interpreting laws) branches of government. The Constitution of India does not explicitly mention “separation of powers” like the US Constitution[7], but it embodies the principle through the distinct functions of its three organs[8].

 On the other hand, ‘Federalism’ is a system of government which divides authority between the federal or central government and state or provincial governments. This concept is an integral aspect of our Indian polity as it allows democracy to flow downwards from the centre to smaller autonomous units of governance, ensuring access to democratic civic liberties and ensuring greater access to ideals of good governance.

It is often observed that federalism and SOP may occasionally interact as SOP is frequently included in federal systems at the federal and state/provincial levels of government.
In a federal system, SOP can aid in preventing one level of government from dominating another form of government[9]. Therefore, it can be said that SOP and federalism are complementing ideas that support a healthy democracy, the only major difference being that SOP separates power functionally, while federalism divides power geographically.

UNDERSTANDING THE DOCTRINE OF “SEPARATION OF POWERS” IN INDIA

The application of the doctrine of “Separation of Powers” within India ensures a system of cooperation along with independence for the means of effective governance and administration of civil order.  These pillars function together and there is no domination of one branch over another. Simultaneously, each branch has the power to check and balance the other. At the same time, these three branches are separate but independent[10]. However, it is observed that there is some overlap between the branches, particularly between the legislature and the executive, for example, The Prime Minister must be a member of parliament.

The Framework of Federalism in India:-

A written constitution that grants power and defines the range of shared responsibilities possessed by all tiers of government strengthens a federal system. The Constitution of India is considered the most fundamental law of our land, ensuring that all existing laws must comply with its provisions as all other laws are subordinate to it, and it pertains to the formation, structure and functions of the institutions of the State and the Government of our country (expressly stated in Article 13 – Laws inconsistent with or in derogation of Fundamental Rights). It prescribes powers and responsibilities to various instrumentalities of the state, imposes limitations on them, regulates the relation between the state and its subjects, and confers, protects and strives to develop certain rights for its subjects[11].

A constitution can be unitary or federal. A unitary constitution is one in which all the powers of the government are vested in the Central Government. The unit governments or State governments enjoy only those powers which are delegated to them by the central government. There is no separation of powers. On the other hand, A federal Constitution divides the powers between Central and Unit (State) governments. The Unit governments are not subordinate but act in coordination with the Central government[12].

Federalism forms the basic part of our Constitution. The Indian Constitution divides the powers between the Centre and State. The Centre is given more powers, such as in cases of emergency and administrative relations. In the case of repugnancy between Centre and State law, the former prevails. Thus, it can be said that the Indian Constitution is a federal Constitution with more centralizing tendencies[13]. (Centre prevails over State). Therefore, India is a ‘Quasi-Federation’ or a ‘federation with a unitary bias, or even a ‘Unitarian federation.’

Federalism as a Core Constitutional Concept:-

Federalism, as a concept, forms a part of the salient features of our Constitution, stating that the Constitution prescribes a federal structure of government; where a federal state is a state where a country is divided into smaller regions and the government is functioning at two levels. In light of India’s large geographic area and the diversity of its languages, regions, religions, groups of people, and other ethnic groups, the Indian Constitution requires a federal system. It is important to note that through the 73rd and 74th Amendment acts, we have rural and urban local bodies as an additional constitutional tier of the government structure.

‘Federalism’ is also a part of the Basic Structure Doctrine. The ‘Basic Structure Doctrine’ states that the Constitution of India has certain basic features that cannot be changed or destroyed through amendments by the parliament. In simple words, the doctrine states that a sovereign state’s Constitution contains specific features that cannot be changed by its legislature. It was developed by the Supreme Court of India in the landmark judgement of Kesavananda Bharati v State of Kerala.

This case established this doctrine in a historic ruling delivered in 1973. This judgement is considered one of the most important Indian judgments of all time. Essentially, The case contested the constitutionality of amendments that curtailed the judiciary’s authority and citizens’ rights[14]. The brief facts of the case are detailed below[15]:-

1. In the 1960s, the Kerala government passed land reform laws that restricted property ownership.
2. The leader of the Edneer Mutt (a Hindu monastic institution) named Sri Kesavananda Bharati contested these limitations on land ownership of religious organizations.
3. The Parliament passed the 24^th Amendment (which gave it the power to amend fundamental rights, including property rights), the 25^th Amendment (which deprived the Supreme Court of the authority to decide how much to pay for land that has been taken over for public purpose), and the 29th Amendment (which placed two Kerala land reform measures to the Constitution’s ninth schedule – The Kerala Land Reforms (Amendment) Act, 1969 and the Kerala Land Reforms (Amendment) Act, 1971, which limited fundamental rights and judicial reviewing authority)[16].
4. Kesavananda Bharati contested these amendments, claiming that these amendments went against the fundamental structure of the Constitution.
5. The case ultimately reached the Supreme Court and Kesavananda Bharati, the leader of a Hindu religious institution in Kerala, won the case.
6. The Court ruled that Parliament has limited authority to change the Constitution. The parliament cannot change certain aspects, such as “federalism” and the “rule of law.”
7. The court created the basic structure concept, which safeguards the essential framework of the Constitution.
8. The court’s ruling upheld the judiciary’s independence and the supremacy of the Constitution[17].
9. One unique aspect of the case was that it was heard by a 13-judge bench over a period of 68 days, from October 31, 1972, to March 23, 1973. The judgement was delivered on April 24, 1973, with a slim majority of 7:6. Justices A. N. Ray, D. J. Palekar, K.K. Mathew, M. H. Beg, S.N. Dwivedi, and Y. V. Chandrachud dissented from the majority ruling in the matter, which was rendered by CJI S.M. Sikri, K.S. Hegde, A.K. Mukherjea, J.M. Shehlat, Grover J, P.J. Reddy, and H.R. Khanna[18].

The significance of the Kesavananda Bharati v. State of Kerala judgement lay in the fact that it has become a key pillar of Indian Constitutional Law, ensuring that the Constitution maintains its core principles while remaining adaptable to the times.[19] It was determined that the “basic structure of the Indian Constitution could not be repealed even by a constitutional amendment”[20], thus limiting the amending power of the Parliament. Some other basic features or elements of the basic structure of the Constitution include[21]:-

1. Supremacy of the Constitution.
2. The Indian polity is sovereign, democratic, and republican.
3. Secular character of the Constitution.
4. The division of authority among the legislative, executive, and judicial branches.
5. Federal character of the Indian Constitution.

Application in the Indian Context[22]:-

A system of shared power between two or more governments that have jurisdiction over the same citizens and territory is known as federalism.  The collaboration between the national, regional, and local administrations within a federal state is referred to as intergovernmental relations[23]. It is used when matters involving legislative authority require a collaborative approach. The power to arbitrate disputes between regions is frequently vested in the national government.

For example, The national government can address regional differences in social welfare and income by implementing policies that redistribute tax revenues in a geographically vast and economically diversified country. Federal systems are inclusive and responsive. Citizens can run for office at any level of government, but local and regional governments provide the most jobs and perhaps the most chances to better their areas.

Political parties have several chances to serve their citizens under federalism. Parties are allowed to participate at the regional and municipal levels even if they do not have a majority in the executive or national legislature.

To understand the application of ‘federalism’ in the Indian Context, it is essential to consider some recent events that highlight the dynamics of Indian federalism. An example of such a recent event lies in the Implementation of ‘GST’ in India.

A significant milestone in the Indian process of reaching a single indirect tax system was reached with the introduction of the Goods and Services Tax (GST) on July 1, 2017[24]. Examining the past tax system, especially the Value Added Tax (VAT) system, is crucial to comprehending the importance of the GST. Value Added Tax (VAT) was introduced on 1^st April 2005. One of VAT’s primary characteristics was that it was a state-level tax, administered and gathered differently by each jurisdiction, resulting in differences in rules and rates[25]. State-by-state variations in tax rates resulted in complications and discrepancies. Under GST, Although there are occasional variances for particular items and services, overall uniformity is present throughout the nation. VAT was administered differently by each jurisdiction, leading to varying policies and practices. Conversely, GST is administered by both the federal government and the states under a dual framework. Under VAT, Interstate sales were subject to the Central Sales Tax (CST), which increased the tax burden. This process was made simpler by the implementation of the Integrated GST (IGST) on interstate supplies[26].

Therefore, The implementation of GST is an example of cooperative federalism that displayed that great results are achieved when the Centre and State work together. Through shared sovereignty with a balance of power between the two levels, and the GST Council (a collaborative entity asserted under Article 279A of the constitution) where the Centre and states jointly decide important features, the GST implementation exemplifies Indian federalism. State and central finance ministers make up the GST Council, which requires agreement from a range of stakeholders in order to determine GST rates and related issues.  A three-fourths majority is required for council decisions, which promotes shared ownership[27].

However, it is important to note the tensions brought on by states’ loss of fiscal sovereignty, disagreements over revenue sharing, and difficulties with implementation[28]. The influence of federalism is evident in the GST’s dual administration, allowing for state-specific changes like varying tax rates (CGST AND SGST) or exemptions for local industries, and interstate coordination by eliminating tax obstacles[29]. In the end, GST highlights the necessity of constant discussion and compromise in India’s dynamic federal structure to strike a balance between state sovereignty and centralizing pressures.

Analysing ‘Division of Power’ under the Indian Constitution[30]:-

The Constitution, under the Seventh Schedule, uses three lists to distribute authority between the Union (central) government and the State governments in order to avoid conflicts between the two levels of government, especially while employing concurrent powers. The founders of the Constitution established in place a variety of preventative measures.

1. Union List (List I):- It contains matters of national significance where consistency in rules of law throughout the nation is crucial for effective governance. The Parliament possesses the exclusive power to legislate on such matters. Such matters include:-

• Defense
• Foreign affairs
• Currency
• Banking
• Atomic energy
• Railways
• Communications

2. State List (List II)[31]:- It consists of laws related to matters of local or regional concern or importance where the State legislatures possess the exclusive power to legislate on such matters. Such matters include:-

• Public order
• Police
• Local self-government
• Agriculture
• Education
• Public health
• Land

3. Concurrent List (List III)[32]:- It consists of matters which are held by the Union and the States in a shared interest. Therefore, The State Legislature shall not pass any law without formal conciliation with the Central Legislature or Parliament in such matters. In case of any conflict, the Union shall prevail. Such matters include:-

• Education
• Forest
• Trade unions
• Marriage and divorce
• Adoption
• Succession

The goal of this ‘division of power’ is to maintain autonomy and coordination by balancing the powers of the Union and State governments. It is important to note that the Indian Constitution guarantees single citizenship where all citizens are both the citizens of the Union and the respective states[33]. Through constitutional revisions, The Parliament can change the lists, which are not set in stone.

Evolution of ‘Federalism’ under Indian Law:-

The division of powers between the federal government and the states is a crucial component of India’s complicated and dynamic federal structure. This distribution of Power in the Indian Context has been shaped and defined in large part by Supreme Court rulings. A significant case often cited to understand the evolution of ‘federalism’ in the Indian context is S.R. Bommai v. Union of India[34].

This 1994 Supreme Court judgement reinforced Indian federalism and also established the rules for applying Article 356 of the Constitution which pertains to the imposition of a state or constitutional emergency by the President if a state government is unable to operate in line with the Indian Constitution (President’s Rule)[35]. This is the President’s power to remove state governments as per the constitutional provisions. Additionally, the case also restricted the federal government from firing state governments without cause, thus curtailing the arbitrary application of Article 356 of the Constitution[36]. The brief facts of the case are given below[37]:-

1. Under President’s Rule (Article 356), S.R. Bommai’s Janata Dal government in Karnataka was overthrown by the Central Government in 1989.
2. Despite demonstrating legislative party support, The Central Government stated that Bommai’s government was overthrown for allegedly losing the majority.
3. Subsequently, Bommai and other Council of Ministers members filed a writ case in the Karnataka High Court.
4. In its initial ruling, the Karnataka High Court denied Bommai’s appeal contesting the loss. Therefore, he filed an appeal with the Supreme Court.
5. The major issues within the case included the justiciability of the matter, the scope of the President’s power under Article 356 and the constitutional justifications to enforce the President’s Rule.
6. In a decision passed by a bench of nine judges, the Supreme Court ruled that the President does not have absolute authority to dissolve a state government. The President shall only enforce his rule if this proclamation has been approved by both Houses of Parliament. The judgement also stated that the President’s Rule under Article 356 must be applied carefully in accordance with the views of Dr. B.R. Ambedkar and the suggestions of the Sarkaria Commission.  The Court required that such proclamations must get parliamentary approval within two months, after which the state assembly would resurrect the proclamation. The Court further stressed that the right way to determine a government’s majority is through a test on the “floor of the assembly”, not the Governor’s opinion. The Court also ruled that judicial review applies to the implementation of the President’s Rule.

The Significance of the Bommai Case cannot be overstated. In essence, It underlined that the President’s authority under Article 356 should be used sparingly and that federalism is a fundamental aspect of the Constitution. The arbitrary application of Article 356 was severely curtailed by requiring judicial and parliamentary scrutiny of presidential proclamations which strengthened federalism by preventing state governments from being overly susceptible to federal involvement[38]. The ruling emphasized the restrictions upon Article 356 which sought to effectively put an end to the federal government’s practice of firing state governments at random. Additionally, The case established judicial scrutiny of the President’s use of Article 356, making clear that state governments are not subservient to the federal government. This helped to prevent the abuse of Article 356 and thus strengthened the federal structure.

Significance of Federalism:-

Federalism is essential to bolster democracy in a number of ways. Federalism is often considered an integral part of a democratic nation as it divides power between a central authority and various constituent units of the country. A federation has a minimum of two levels of government, each of them enjoying its prowess to a somewhat independent level. The principles of federalism are important for a democratic system as it expands participation in politics and government.

The central or national government is the sole source of authority in ‘unitary’ systems of government. Despite the fact that any system can foster democracy, there are actual and substantial distinctions between unitary and federal forms of government. For instance, the government of Great Britain is unitary. The final say on everything that happens in the UK rests with its Parliament. Parliament can mandate its towns or counties to do anything it thinks is right, even if it gives them authority over local affairs. If it so wishes, it can even abolish them or alter their borders[39].

Therefore, The central government of a federal country has clear authority and complete control over exterior matters. It is more difficult to exercise power in domestic matters. In general, national interests outweigh state interests. In addition, the Supreme Court (the Apex court in the judiciary) has the judicial power to settle disputes between two or more states as well. Hence, The Significance of ‘federalism’ is felt due to the following reasons[40]:-

1. Federalism establishes a system of checks and balances by distributing authority across the federal, state, and provincial levels of government. This lowers the possibility of tyranny and encourages accountability by preventing the concentration of power in one place.
2. More localized decision-making is made possible by federalism. The unique demands and issues of their communities are easier for local governments to comprehend and handle. This improves responsiveness to the various requirements of the nation’s citizens.
3. States are free to try out various governing strategies and policies. Adoption of effective policies by other states or even the federal government can promote innovation and enhance public services.
4. Federalism allows for the protection of minority interests by giving minorities several channels for political representation and participation and thus it can safeguard their rights. They can seek remedies at the national, state or municipal levels if their rights are being violated such as by the process of filing writ petitions under Article 32 of the Indian constitution.
5. Federalism promotes public involvement in several governmental spheres. This promotes a sense of empowerment of citizens over the political process and fosters civic involvement.

Criticism of Central Overreach:-

The dynamic federal system of India is constantly evolving to improve local and central governance. However, there exist several criticisms against the Indian federal system. A major criticism is that union governments may overstep in their decision-making, leading to conflicts between the state and the government. For example, it has been felt that federalism may result in inequality in the quality of public services across the nation if resources are not allocated fairly across the many tiers of government. Another valid criticism is that different levels of government may clash over policy differences and jurisdictional limits that can obstruct efficient governance[41].

In reference to fiscal disparities between the States, India’s state-to-state fiscal differences have become a divisive topic, especially in the south, where states have voiced disapproval of what they see as insufficient funding from the federal government as recently as the 2024 Parliamentary Session on Union Budget. Important issues regarding the distribution of resources and the balance of power within India’s federal system are brought up by this discussion. Tamil Nadu, Karnataka, Kerala, Andhra Pradesh, and Telangana are some of the southern states that contribute the most to the national revenue pool. They contend, however, that the compensation they receive through grants and tax devolution is disproportionately less than that of certain other states. Demands for a more equitable allocation of resources have been stoked by this perceived injustice. It is imperative to note that the Union government’s plan for allocating net tax revenues to the States and the Centre is formulated according to Article 270 of the Constitution. Corporation tax, personal income tax, central GST, the centre’s portion of the Integrated Goods and Services Tax (IGST), and other taxes are split between the states and the centre. This division is done according to the recommendations of the Finance Commission, established every five years[42].

Southern states, especially Tamil Nadu, claim that the 15th Finance Commission’s criteria and GST have led to an unjust distribution of central funds.  States enjoyed tax autonomy which allowed them to adjust tax based on their fiscal needs prior to the introduction of the GST, but this dependence was transferred to the Centre.  Due to their higher contributions, the southern states were anticipated to be the main beneficiaries of the 14% increase in tax revenue and compensation boost that the centre pledged as they contributed more to the divisible pool.

The disparity became worse by the 15th Finance Commission’s use of the 2011 census for tax devolution.  Despite being designed to reward population control, it disproportionately affects southern states where they receive a lesser percentage of devolved taxes than states with higher populations (Karnataka 3.65%, Telangana 2.13%, Andhra Pradesh 4.11%, Kerala 1.96%, Tamil Nadu 4.2%, and Karnataka 3.65%) and Uttar Pradesh (18% share), leaving them disadvantaged.

This discrepancy alarmed the sports minister of Tamil Nadu (Udhayanidhi Stalin) and others who questioned Finance Minister Nirmala Sitharaman on this issue. A parliamentary investigation found that the southern states- Karnataka, Telangana, Kerala, Tamil Nadu, and Andhra Pradesh—collectively paid more over Rs 22.26 lakh crore in taxes, but only received Rs 6.42 lakh crore in devolution. Conversely, Uttar Pradesh collected Rs 6.91 lakh crore despite contributing Rs 3.41 lakh crore[43]. However, this query was dismissed by the Union Finance Minister Nirmala Sitharaman in the Lok Sabha during the Interim Budget Session of the Parliament in New Delhi on February 7, 2024, on the ground of being “patently wrong and mischievous”[44].

This scenario poses an immense challenge as it critiques Indian federalism. A very important criticism is that the concentration of power limits state autonomy by giving the central government undue fiscal control. Regional imbalances are caused by unequal resource distribution that benefits certain states[45]. Additionally, accusations of prejudice and bias are fuelled by opaque fund allocation which jeopardizes national unity. As states fight for resources, it makes competitive federalism worse and strains ties between the centre and the states[46].  The dissent of the Southern States, in this instance, points to their feeling of unequal treatment and their claim that greater tax contributions aren’t reflected in fund allocation, which frequently favours larger or “backward” states, and that they are penalized for economic progress.  They fear that fiscal autonomy will be impacted by the use of what they see to be an unjust portion of government income to finance social programs and development.  Since they want sufficient funding for infrastructure, education, and other important areas, they worry that persistent gaps will impede economic growth[47].

Conclusion:- 

In conclusion,  ‘Federalism’ and the underlying concept of the ‘distribution of power’ ultimately form a part of the basic structure of the Indian Constitution. However, it is to be noted that Indian federalism faces a wide range of difficult issues. Challenges such as Climate Change Governance and Fiscal Changes quickly demand our attention. Since the effects of climate change are seen locally, states and the federal government must work together to take coordinated action. This calls for a strong framework for climate governance that gives states more authority, promotes information exchange, and guarantees cooperative climate policy implementation. There will probably be more disputes over water sharing, resource distribution, and accountability for adaptation and mitigation initiatives, necessitating creative solutions within the central framework. On the other hand, Ongoing fiscal changes are necessary due to the challenges of managing expenditures and generating revenue, as well as the necessity for governments to have more fiscal autonomy. It is a delicate act to strike a balance between the needs of states and the Centre’s need for macroeconomic stability and fiscal restraint. Rethinking revenue-sharing arrangements and looking into new ways to mobilize state resources are necessary due to the changing structure of the economy, which includes the emergence of the digital economy.

To tackle these obstacles, a dedication to cooperative federalism is necessary. It is possible to improve or rethink a number of mechanisms. For example, the Inter-State Council for consultation between the States and the Centre have to be improved as a means of communication and consensus-building. Its role can be strengthened by regular meetings, well-defined agendas, and an emphasis on settling interstate conflicts[48].  It is also essential to engage states in meaningful and early consultation on policy initiatives, particularly those that have major ramifications for state autonomy. This can promote a feeling of shared ownership and help to avoid disputes. At the municipal level, federalism is strengthened through empowering local governments.  It is imperative that federalism change from competitive to collaborative, with the states and the centre acting as partners. Fair governance is also ensured by strong, independent institutions such as the Election Commission and the judiciary. Together, these initiatives promote a more efficient and equitable federal government.

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