Before I write this, I am giving this disclaimer. I am no law expert nor I have great amount of jurisprudence. But whatever I write are from the knowledge that I have gathered from my teachers and readings.
Major Source : Introduction to Constitution of India, DD Basu and Constitution of India.
Second source : Indian Polity, Lakshmikanth ( Partly ), NCERTs
-@-
Ar.1 of Indian Constitution
The recent controversy of calling the central (மத்திய அரசு ) government as union (ஒன்றியம் அரசு) government has re-kindled the ever-lasting debate on the nature of federal relation that Indian constitution framers have enshrined us upon. Before giving my take, there is one clear misnomer that is going on.
ஒன்றியம் – Union
கூட்டாட்சி = Federation
Union ≠ Federation.
So, Using the word union to indicate federal behavior is not the correct way to indicate federalism. If one had to indicate a unified federation government, one should start using federal government like one addresses the USA government. If one had to consider the Indian landmass like the EU, then one could go ahead and call it the union government. But Unlike India, EU is not a federation/confederation. It has elements of supranationalism associated with it. Thus, it can be called as an association of Compound states truly. Moreover, Like Brexit and Grexit, the states have not given their sovereign rights to be part of EU and they can secede. Neither of the two conditions are true to Indian states. Thus, the recent debate over calling the government not central and instead a union government has no basis in my point of view. Constitutionally even though we have denoted the central government as union government, based on inference and not blind word by word, calling it the Union( which essentially indicates a government like that of EU) doesn’t match with the mandate of constitution.
By this time, many of you would have heard that India is an indestructible union of destructible states (IUoDS) and the reason why India is divided into provinces is for administrative reasons. If that was the case, then Supreme court of India in SR Bommai case would not have included federalism as one of the elements of basic structure of our constitution because IUoDS has a centralizing/Unitary character associated with it and Eminent Jurists like DD Basu agrees to it.
Post formation of USA, which is an 100% federal country, the level of federalism is measured by comparing the features present in one country’s constitution with USA’s. If that is done, escaping Australia and Switzerland, no country can be called truly federal. However, the level of federal character incorporated into a country’s constitution is highly dependent on the specific need of that country and not for the sake of being federal in behavior. And inorder to determine if a country is federal, one needs to count on the number of federal features that a country posses keeping in mind the social and cultural background behind which the country’s constitution was written.
In the case of India, if we analyze the constitution, one can say ( And the supreme court also says )that We are a federal polity but with a strong unitary bias. So, the expectation of states to have autonomy like that of European Union or for that matter USA is not feasible constitutionally, albeit, there are powers which states enjoy and it cannot be barred by central government. Now if we take a step back to analyze the federal characters, we check the boxes like,
- Dual government
- Written constitution
- Supremacy of constitution
- Independent Judiciary
But at the same time, we have several centralizing features like,
- Emergency provision
- Position of Governor
- All India services
- Unequal representation of states in Rajya Sabha
- Residuary and concurrent legislative over-riding power
- GST council.
- Single citizenship
- Integrated Judiciary
India, thus can be said to have loose federal structure.
Now, if we analyze from a historical point of view, before the passing of GoI act, 1935, India had a political structure that was similar to today’s UK. The provinces had powers which were devolved to them by the executive governor general council. However, with the passing of GoI act, 1935, provinces started to derive their power from the crown, like the central government. However, central government could still influence the provincial government using the post of governor of that particular presidency. Thus, before 1935, India was not federal. This begs another question. So, post 1935, did the country become truly federal? A federation can be formed only by two or more than two sovereign units coming together. But Indian provinces under British rule did not have any sovereign right as they were functioning under a common central government. Thus, India can never be called a federation of states and like people trend on twitter, United states of India. Another example that can be given is the example of Canadian system of government which was formed similar to India. The only extension is that Our judiciary has included federalism as a part of basic structure of our constitution. Thus, the provinces of India were artificially made autonomous within India by GoI act, 1935. The framers of constitution transformed India with those artificially created provinces into a federal Union and not Federation, with states giving up their right to secede. One can question how states are artificially created, but truth be told, when India was formed, Madras presidency had 4 states in it. However, today we have 5 separate states functioning without any inter-dependence. Also, the Central government has the power to change the land boundary/Name of the state even without the state’s consideration. These features are in stark contrast to a truly federal character.
Professor Kenneth Wheare’s opinion on Indian federal character is that India is a Quasi federal system. It can be easily explained with the following diagram. Without emergency provision activated, India has the state concept. But with national emergency into force, the concept of state goes out of the window and the integrity of nation is what matters the most.
Thus, India can be called as a Sui Generis ( Special case) and is not completely federal nor Unitary but is federal with a strong unitary bias and this is what the constitution makers wanted, this is what had been interpreted by many of the renowned constitution experts.
Till date, I have not asked anyone to share my posts or anything of sorts. But with this, If you read uptil this point and if you agree, do share. If you find any inconsistencies, do let me know and If I find them genuine, I will appropriately change the content of the post with your name in it, ofcourse with your permission.
Blind Octaves 
Great Post!
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