Chapter 1. Nature of Indian Constitution, Federal and Unitary Constitution

Nature of Indian Constitution

A critical evaluation of the Indian Constitution reveals the fact that it combines both federal and unitary feature. Nevertheless, the centripetal bias in it is strong that it is only federal in form and unitary in spirit and therefore, quasi-federal in nature. As such it can operate as a federal or as a unitary constitution as time or circumstances require.

Federal Features of Indian Constitution

One of the essential marks of federal government is the division and distribution of powers. The Indian Constitution has clearly distributed powers between the Union and the States. Indeed following, the examples of the Government of India Act 1935, its makers adopted a very elaborate scheme of distribution of powers. The Constitution has divided them into three lists:

1. The Union List of about 97 powers
2. The State List of about 66 powers and
3. The Concurrent List of 47 powers

The Union List mentions subjects about which the Union Parliament makes laws. The State List mentions matters about which the state legislatures make laws while the Concurrent List mentions such matters about which both the Central Parliament and the State Legislatures have concurrent power of legislation.

Secondly, The Constitution of India is written and is also fairly rigid. The provisions that deal with the distribution of powers between the Centre and the States cannot be unilaterally changed by Parliament, the central legislature.           

Thirdly, like other federations, there is in Indian Supreme Court with power to interpret the constitution and decide the constitutional disputes between the Union and the States. It can declare any law of Parliament or of a State Legislature to be unconstitutional and void if it contravenes any provision of the constitution.

Fourthly, there is also some amount of special revenue arrangements both for the Union & the States.

Unitary Features - Indian Constitution is Quasi-Federal Nature

In spite of its federal features mentioned above, the Indian Constitution is more unitary than federal, which make it quasi-federal in nature and enable it to operate as a federal or a unitary constitution as and when circumstances so require. Its unitary features of indian consitution are the following:

Power distribution favors the Constitution

First of all, the Centre has been given a long list of exclusive powers. There are, about 97 subjects in Union List. Moreover, the Concurrent List contains 47 more subjects, in which the Union has concurrent power of legislation with the States. But even the laws passed by the Centre override those passed by the States. Moreover, the creams of powers are allocated to the Union.

The Residuary Powers

Unlike the US or the Pakistan provinces the residuary powers has been given to the Union Government in the Indian Constitution. This is definitely a source of strength for the Centre.

Emergency Powers

It time of emergency, due to war or internal disturbance or caused by the failure of constitutional machinery, the President can by proclamation transfer to Parliament all the legislative and executive authority of the States. Thus, in times of emergency, India becomes a unitary state for all practical purposes.

Rajya Sabha: Power to Transfer State Subjects

Even in normal times, The Centre can take over any State subject if the Council of States (Rajya Sabha) approves of it by 2/3rd majority of its members present and voting  on the ground that it is of national interest. It is to be remembered that the Council of States, unlike the US Senate is not constituted on the principle of parity of states, as the Indian States are not equally represented in it.

Appointment of Governors

The Governors of the States are appointed by the President on the advice of the Central Cabinet or Prime Minister and are required to comply with any directions given by the Centre. In times of emergency, they become mere agents of the Central Government. In US constitution the Governors are appointed by the 'people of the States and can be removed only when impeached by the State legislatures.

States have no Constitution

Unlike the USA, the Indian States have no constitutions of their own. The Indian Constitution is the only constitution for the whole country, the Centre, as well as, the states. Moreover, the states have no power to amend it or to change their governmental machinery.

Single System of Judiciary

The Indian judicial system is unitary. There is a single integrated judicial system for the whole country, with the Indian Supreme. Court at the top. In a true federation there is a dual system one for the federal laws and the other for the laws of each federating units: as is in the USA.

Single Citizenship

The Unitary bias of the Indian Constitution has been made more prominent by providing single citizenship. In other federations, there is often dual citizenship i.e. a person is both a citizen of the federation as a whole as well as of the unit in which he dwells.

Financial Dependence

On the whole, the states of the Indian Union do not possess independent sources of income, but are dependent upon the Centre. Financial dependence of the Centre makes them dependent in policy and administration as well.

A Single Administration system

Though there are Central and the State public services, yet administrative system is on the whole one and integrated for the whole country. The All-Indian Services (Police and Administrative) are controlled by the Centre and their members hold key posts in the state Administrations.

Single Election Commission

Again there is one Election Commission for conducting and supervising general elections all over the country.

Redistribution of State's Boundaries

Even the existence of the units of the Indian federation depends on the will of the Centre. Article-3 & 4, which empower the Union Parliament to form new states and alter the boundaries and names of the existing states, are not only the negation of the federal principal but the very definition of a unitary constitution.

Difference between a unitary and a federal government

is that a unitary government puts its power in one central government while in a federal system the governing power is divided into federal and local governing bodies that connect to the national government.

The Unitary governing system:

• Places its power in one central governing system

• Very little political power exists outside the central government

• The powers of this governing system are uniformly applied throughout

• All major government decisions are made by the central government

• If smaller government units are established they are controlled by the central government and can be abolished by such without their consent

• Many unitary governments are either dictatorships or totalitarian

• France, although Democratic, is governed by a Unitarian body

• Kuwait, Saudi Arabia, Barbados, Morocco, and Spain are examples of unitary monarchy government

• China, Afghanistan, Italy, Zambia, and the Ukraine are examples of unitary republic government

The Federal Governing System:

• Distributes power from the national government to local/state governments to adopt laws that are reasonable to the country as a whole and the localities

• Power may be diffused in the federal system

• Multi-national states often have a federal system

• Larger countries often adopt the federal system since constituents may live in areas remote to the location of the central government

• Ethnicities with in a country may lead to a federal system as their rules and laws may vary. An example of this is the small country of Belgium which balances the needs two distinct ethnic groups

• The United States has a federal governing system with a national government and Constitution, in conjunction with states governments and constitutions