Table of Contents
   Index
   About the Author
   Introduction
   Preface 
   Indian Federalism
   Integration of States
   Article 370
   The Constituent Assembly
   Federal Jurisdiction
   Division of Powers
   State Apart
   Download Book

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Chapter 1: Indian Federalism

The Indian federal polity grew out of two diametrically divergent processes which underlined the devolution of authority to the provinces, in what was known as the British India before the independence, and the integration of the Indian States, which had acceded to India in accordance with the Instruments of Accession. The Instruments of Accession envisaged the procedure by virtue of which the Indian States, after the British withdrawal from India and the lapse of Paramountcy, exercised the right to accede to the Dominion of India. The federal organization of India was, therefore, constituted of the erstwhile Indian provinces of the British India and the Indian States which were liberated from the British tutelage after the British colonial organization came to its end in 1947.

The federalizing process in India underlined a combination of the devolution of authority to the provincial governments on the one hand and the integration of the acceding States on the other. The Constituent Assembly favored a conditional devolution of the powers to the provinces. The Rulers of the States, however, on their part too, approved of a conditional transfer of authority to the Government of India. Initially the Rulers of the States acceded to the Indian Dominion and delegated to the Government of India, powers mainly related to the foreign affairs, defense and communications and generally hoped that the federalization of the States would be confined to almost the same prescriptive which the Paramountcy underlined. The Constituent Assembly proved to be a great leveler and forged the provinces and the States into an irreversible union in which the Central Government assumed paramount authority over the provinces as well as the States. The provinces had nothing to bargain with, except the plurality of their population, their culture and their history, which the Indian leaders, singed by the partition, refused to accept as the basis of the federal reorganization of India. The princely States too, did not possess a coherent personality to resist the federal operatives, the Constituent Assembly evolved. They were peripheral salient of the British colonial organization in India and had never enjoyed any powers except the ceremonial and the splendor the British allowed them and the authority they were given to collect revenues in order that the coffers of the British Government were adequately filled and they had enough to squander.

The scheme of the division of powers between the Central Government and the federating States, which the Constituent Assembly evolved, envisaged:

  • Uniform political status for all federating units, provinces and the acceding States, except Jammu and Kashmir;
  • Statutory division of powers between the federal government and the States;
  • Precedence of the federal government over the federating units in matters of legislation, administration and finance;
  • Unified national, judicial structure vested with original jurisdiction to adjudicate upon disputes between the States and the Union and exercise power of review; and
  • A single citizenship with uniform rights and obligation for all the people of India.
Princely States

The Constituent Assembly of India, for some time during its deliberations, recognized the right of the Indian States, many of which had merged into Unions of the States, to devise the structural organization of their governments and their autonomous function. It was accepted that the States and the Unions of the States would institute their own Constituent Assemblies to draw up the constitutions for their Governments.

The State Ministry constituted a special Committee in November, 1948, shortly after the draft Constitution of India was introduced in the Constituent Assembly to lay down broad guidelines for the Constituent Assemblies of the States and the Unions of the States in order that the Constitutions of the States were based upon uniform principles and the principles did not conflict with the constitutional organization of the Republic. The Committee was constituted of two members of the Constituent Assembly K.M. Munshi and Govinda Menon and four representatives of the States in the Constituent Assembly, Ram Sahai from Gwalior, K. Hanumanthaya from Mysore, R. Sarkar of Travancore and C.C. Shaw of Saurashtra. B. N. Rao, the Constitutional Advisor to the Constituent Assembly was appointed the Chairman of the Committee. The Committee drafted a model constitution, more or less based upon the provisions of the Constitution of India envisaged for the provinces or what the draft constitution named the part A States, for the State Constituent Assemblies to adopt However, the process of instituting the Constituent Assemblies in the States was slow and except for the Sarurashtra States Union, Travancore-Cochin and Mysore, Constituent Assemblies of the States were not convened. The Interim Governments instituted in the States, faced several problems of integration and liberalization and the convocation of the Constituent Assemblies was bound to take a long time.

To overcome these difficulties the States Ministry convened a conference of the Premiers of the States and the Unions of the Stares in Delhi in 1949. The Conference of the Premiers decided not to wait for the institution of the Constituent Assemblies in the States and instead proposed to entrust the task of framing the state constitutions to the Constituent Assembly of India The Constituent Assembly of India, it was decided, would draw up the State Constitutions in consultations with the States and with the consent of their governments.

The decisions taken by the Premiers conference bridged the differences, which were inherent in the plan to have separate Constituent Assemblies for the States. In one respect the decision to entrust the task of framing the State Constitutions to the Constituent Assembly of India, was historic and revolutionary, for it portended the delegation of the constitutive powers of the Princes to the Constituent Assembly which the Rulers had earlier, refused to accept.

Consequently an Official Committee was set up in the States Ministry, to suggest amendments to the provisions of the draft constitution of India in the light of the agreements with the States and the recommendations of the Premiers Conference. The recommendations of the Committee were submitted to the Drafting Committee of the Constituent Assembly, which later, drew up the constitutional provisions for the States. The draft provisions were then sent to Sarurashtra, Travancore- Cochin and Mysore, where they were considered by the respective Constituent Assemblies of these States and accepted with minor modifications. The draft constitution was also sent to the other States and the Unions of the States for their consideration. All the State Governments accepted the draft provisions, except the Jammu and Kashmir State. After the States gave their concurrence, the Drafting Committee moved necessary amendments to the draft constitution of India to incorporate in it, the constitutional provisions with regard to the States. According to these provisions,

  • The States were included in the First Schedule of the Constitution of India which defined the territorial jurisdiction of the Indian Union;
  • The constitutional provisions with regard to the Governor's provinces, which were renamed as Part A States, were made applicable to the States which had merged in the provinces as well as the States reorganized in the Chief Commissioners provinces which were renamed as Part C States;
  • The constitutional provisions with regard to the government of the Part A States, were made applicable to the States of Hyderabad, Madhya Bharat, Patiala and East Punjab States Union, Rajasthan, Saurashtra, Travancore-Cochin and Vindhya Pradesh with certain modifications and these States were renamed Part B States;
  • The provisions of the Constitution of India with regard to the legislative relations between the Union and the Part A States were made applicable to Part B States and Part C States;
  • The provisions of the Constitution of India with regard to the administrative and financial relations between the Union and the Part A States, were made applicable to Part B States;
  • The Part B States were placed for a period of ten years, or such period as the Parliament would by law provide, under "the general control of the President of India" and were required to "comply with such particular directions as the President would give from time to time"; and
  • The remaining provisions of the Constitution were also made applicable to Part B and Part C States.
The amendments to the draft constitution placed all the States within the purview of the Constitution of India. Whereas the draft constitution placed the erstwhile Governor's Provinces of the British India in a special category of Part A States, the Princely States were classified in two special categories: Part B States and Part C States. The heads of the Part B States were redesignated as Rajpramukhs, and all of them were nominated from amongst the erstwhile Maharajas and Nawabs. The Maharaja of Jammu and Kashmir and the Nizam of Hyderabad were also appointed the Rajpramukhs of their States. Special provisions were included in the drain constitution for the payment of allowances and other monies to the Rajpramukhs. Provisions were also incorporated in the draft constitution by virtue of which the State armies of the Part B States were placed under the control of the President of India. Since it was bound to take some time for the State troops to be absorbed in the Indian army, control over the State troops, for the transitional period was vested with the Rajpramukhs.

The provisions of the Constitution of India with regard to the States were sweeping. In many of the States, interim Governments were instituted, relegating the Princes to the background; many of whom, had, in case of merger with the provinces or integration with other States, lost the initiative they had used during the British rule. In fact, many of them quickly realized that with the withdrawal of the British, their power and privileges were lasted the real powers in the States had passed to the representative Interim Governments. In most of the States, the Rulers, turned for inspiration and support to the States Ministry, and were, therefore, eager to implement the suggestions made to them by the latter.

The federalizing process in India envisaged a political unity, which recognized the political identity of the States but consolidated them into integral parts of a political personality, which expressed the will of their people rather than the agreements, which the States had executed to join the Indian Dominion. The founding fathers of the Indian Constitution did not recognize the States as subnational identities, nor did they visualize the division of powers in the Indian federal organization, between the central government and the federating units, which represented any ethnic, cultural, religious or linguistic subnationalities in India. This could not be possible, because India presented a highly intricate complex of numerous subnational identities, which could not be identified with any political boundaries or administrative limits. The political boundaries of the Indian provinces and Princely States, as they had evolved with the British consolidation in India, overspread ethnic, religious, cultural and linguistic diversities. The British recognized the divisions in the Indian people, and deepened the social, cultural, religious and linguistic differences which divided them but they did not link the manifold plurality of the Indian social culture to the political consolidation of their power in India. They broke up all political entities, which represented any subnational identity, the Muslim potentates, the Marhattas, the Rajputs and the Sikhs and reorganized them into administrative divisions which were territorial in character and were inhabited by people who did not coincide with any ethnic, cultural, linguistic and religious limits. The British followed a policy of consolidation in India, which dissolved the traditional political boundaries, identified with ethnic, religious and cultural conglomerates. The Indian uprising of 1857, represented a reassertion of the various ethnic, cultural and religious identities against the political unification the British had initiated. That was precisely the reason because of which the uprising failed; the diversities, which the revolt represented, could not be forged into a solid front against the British power.

The British colonialism in India led to the reorganization of land tenures and revenue administration; destruction of indigenous industrial structure, mobility of men and material, the imperial interests demanded; spread of communications and the emergence of a mercenary middle class with vested interests transcending the conventional commitments of the people in India to their culture, religion and stock. The Indian plurality survived but subservient to the political operatives of the British empire, except in channels which the British themselves devised like Muslim communalism, separate electorates, regional segments etc. The Indian social pluralism did not describe any political boundaries. The ethnic divisions, religious commitments, caste gradations and cultural diversities cut across the political boundaries, the British described creating innumerable interlocking political segments. None of the interlocking segments described uniformity and territorial contiguity. The Sikh Empire was broken up and the Punjab, the heart of the Sikhs State, transformed into a Muslim majority province of the British India. The

Jammu and Kashmir States was created by the unification of the ethnically, culturally and linguistically separate regional identities of Jammu, Kashmir and the frontier divisions of Ladakh and Baltistan. The Muslims in India, who laid claim to a subnational identity, did not form a coherent territorial unity and the Punjab and Bengal were broken up to separate the Muslim majority areas into contiguous zones and then united with Sind, Baluchistan and North West Frontier Province and the Sylhet division of the province of Assam, to form the Muslim nation of Pakistan. About thirty million of Muslims in India were left out of the Muslim homeland and more than fifteen million of Hindus and Sikhs were pushed out of it. Except for their religious commitments, the Muslims in India did not form a subnational identity with any defined content and contours. The founding of the Indian federation was the culmination of a historical process, which began with the consolidation of the British power in India and ended with the creation of Pakistan.

The founding fathers of the Indian Constitution inherited a unified political culture, encompassing vastly diverse subnational pluralities. The federating process, they evolved, accepted the territorial and political basis of Indian unity, the British had assiduously fostered. The Constituent Assembly at no stage sought to identify Indian federal divisions with any subnational diversity. It could not do so because the subnational diversities did not have any social, territorial or political description and it was not possible to forge them into federating units on the basis of their subnational personality.

The people of India, who constituted the Union, were recognized as one and an indivisible nation, with a single citizenship of the federal union and the States, entitled to the same rights and obligations, and subject to a uniform process of law. No people in any state were accorded separate citizenship and title to any special rights and privileges. The territorial unity of India was described within a single jurisdiction. The territories of the Indian republic were defined by Article1 of the Constitution of India in its First Schedule. The boundaries of the federating States were subject to the territorial jurisdiction of the republic which was vested with the power to alter the boundaries of a State, form new federating units by separating a pert of the territory of a State or parts of the States or by uniting two or more States or parts of States and increase or decrease the area of the States.

State Autonomy

The framers of the Indian Constitution, did not unite national and subnational identities into a federal form which they named the Republic of India, but effected a devolution of central authority to the Indian provinces, which were administrative units of a unitary structure of power, the British had forged to govern India. The accession of the Princely States to the Dominion of India was also, not only a part of their integration into the Indian federal republic but a part of the historical process of the Indian unification which began with the partition and ended with the merger of the States in the Indian Dominion. The Princely States, were, like the provinces, administrative organizations, the British had forged to govern the Princely India. The Treaties between the Princely States and the British, the Sanads which were bestowed on the Princes spread into the vast sweep of Paramountancy, but did not accord the Princely States any political independence. When the Paramountcy ended the States were shorn of the recognition they had assumed under the British and emerged as territorial jurisdictions which were subject to the imperatives of Indian unity and not independent of it. The British refused to recognize their independence and allow them to enter the British commonwealth and no other foreign power accepted to accord to them the position the British had refused. The framers of the Indian Constitution did not abandon the administrative basis of the division of powers between the Central Government and the provinces in British India and the delegation of authority embodied by the Paramountcy.

The framers of the Indian Constitution were as much concerned about the division of powers, as much hey were about the future organization of the federal government and the government in the federal units as well as the liberty and freedom of the people, individually and collectively. The colonial organization of the Government of India and the governments, in the provinces, were closed frames of power instruments which accepted no responsibility. The founding fathers of the Indian Constitution had a selective preference for the acceptance of parliamentary sovereignty and the collective responsibility as the basis of the future federal government as well as the governments in the federating States.

Whatever the considerations weighed upon the mind of the framers of the Indian Constitution, they adopted three basic principles to construct the Indian federal union. These principles were:

  • Constitutional supremacy of the Union over the federating units;
  • the precedence of the authority of the Union over the States in the federal division of powers; and
  • the containment of the federal organization within the limits of parliamentary sovereignty.
The constitutional imperatives which ensured the precedence of the Union, included the territorial jurisdiction of the Union, a unified citizenship, uniform rights and obligations of all the people in India, a unitary national administrative organization; financial Revolution, with the Union as the epicenter, powers of the Union to deal with emergencies including the emergencies arising out constitutional breakdown in the States and the right of the Union to appoint the State Governors.

The division of powers, between the Union and the States, was embodied in an elaborate scheme, in which the legislative, administrative and financial powers of the Union Government and the State Governments were enumerated in detail. The Constitution also specified a concurrent area of jurisdiction between the Union and the States, with precedence ensured for the Union. The powers vested with the Union Government were enumerated in the Union List of the Seventh Schedule appended to the Constitution of India. The powers reserved for the States were detailed out in the State List and the powers within the concurrent jurisdiction of the Union and the States were included in the Concurrent List of the Seventh Schedule. A significant feature of the distribution of powers, the Indian federal structure envisaged, was the reservation of all residuary powers for the Union Government.

Within the broad framework of the division of powers, the Constitution of India envisaged, the States were vested with powers which were derived from the Constitution and were not liable to be taken away except in accordance with the procedure laid down by the Constitution. The powers vested with the States were plenary but not inherent. Constituent Assembly did not recognize any inherent powers in the Indian provinces which constituted the Indian Dominion or the States which acceded to the Indian Dominion. The powers vested with the Union and States were restricted to their respective limits, which were specified by the Constitution.

Notwithstanding the clear demarcation of the legislative, administrative and financial powers of the Union and the States, the founding fathers of the Indian Constitution ensured the precedence of the Union over the States in the scheme of the division of powers it envisaged. The Union was secured control over a wider sphere of State power. Powers were vested with the Union Parliament to legislate in regard to the subjects included in the State List:

  • If the Council of States declared, by a resolution, supported by two- thirds of the majority of its members, present and voting, that such legislation was in the national interest;
  • If the legislatures of two or more States empowered the Union Parliament to legislate on the subjects in the State List in respect of the States;
  • If the Union Government found it necessary to legislate on the subjects in the State List to implement treaty obligations undertaken by the Government of Indian.
The Union was also vested with the powers to legislate in respect of the subjects in the State List, in case of emergencies arising out of war, external aggressions or internal disturbance and the constitutional breakdown in the States.

Precedence was also ensured to the Union in case of conflict between the laws made by the Parliament and the laws made by the State Legislatures on subjects in Concurrent List or the subjects enumerated in the Union List or the State List. In case of any inconsistency between the laws made by the Union and the States, the laws made by the Union prevailed and the laws made by the State were rendered void to the extent of the repugnancy to the central law.

In respect of administrative relations as well, though the States were reserved administrative competence over the entire field over which Heir legislative powers extended, the founding fathers of the India Constitution devised techniques which ensured administrative precedence over the States. The Constitution of India provided that the executive power of each State would be so exercised so as to ensure complete compliance with the laws made by the Parliament and any existing law in force in the State. The Constitution further empowered the Union to give such directions to the States as would appear to the Union Government to be necessary for that purpose. The Union Government was also vested with the powers to issue directions to the State Governments to remove any obstacles or difficulties for any Union agency to function in the States. The Union Government was also empowered to issue special directions in the construction and maintenance of the means of communication of national and military importance and the protection of the railways. The Constitution provided that full faith and credit would be given to the public acts, records and judicial proceedings of the Union in all parts of the country. The Constitution further vested in the Union Government powers to deal with waters of inter-State rivers and river valley as well inter-State disputes. Provisions were also included in the Constitution by virtue of which the President could declare a state of emergency in the States and take over the government of the States, if the States failed to comply with or give effect to any direction given by the Union Government.

The concentric nature of the federal division of powers was made more manifest in the financial relations between the Union and the States. The powers of the Union Government and the State Governments to levy taxes were separately defined and made mutually exclusive. No area of concurrent jurisdiction was demarcated between the Union and the States, though provisions were made to empower the Union to levy and collect taxes and share certain taxes with the States. In the allocation of the financial sources between the Union and the States, the Constitution of India classified the exclusive Union sources, the exclusive State sources, the duties levied by the Union, but assigned to the States, the duties levied by the Union but collected and appropriated by the States, and the duties levied by the Union and distributed between the Union and the States.

The division of financial powers underlined by the Constitution envisaged two distinct schemes: the division of powers to levy taxes and the distribution of revenues. The Union and the States were empowered to levy taxes within the orbit of their competence to tax but the division of revenues was subject to the principle of their needs and requirements. Thus certain taxes included in the Union List were wholly or in part intended for the States and in certain cases their collection was entrusted to the States. The net proceeds assigned to the States were distributed among them on the principles recommended by the Finance Commission.

In the scheme of the division of financial powers, the distribution of the revenues was made in favor of all the States uniformly. However, due to regional disparities and economic stresses the financial needs of some of the States were adjudged more pressing than that of the others. In order to meet exigencies arising out of the regional and economic disparities; the Constitution provided for a system of grants-in-aid to the States, chargeable on the consolidated fund of India. The grants-in-aid were provided for the States in addition to the assignment of various tax proceeds including those shared with the Union Government. The Grant- in-Aid were actually the final balancing instruments of the resources of the States which their manifold functions, particularly in the fields of social utilities and services were needed. The Parliament was empowered to make the grants every year to the extent deemed necessary. The grants were to be fixed in accordance with the recommendation of a Finance Commission, for which the provisions were made by the Constitution of India. The Finance Commission was to be appointed by the President every five years to advise the President on the distribution of revenues between the Union and the States, grants-in-aid to the States and any other financial matter referred to the Commission by the Parliament."

In the division of financial powers between the Union and the States as well, the Union was ensured precedence over the States. The Union Government was unmistakably entrusted with very wide powers to tax the sources, which by nature were substantial and uniform. The financial structure of the federation did not accept unqualified reciprocal immunities of instrumentality between the Union and the States. Several prohibitions were imposed on the power of the States to levy taxes on the Union activities. The immunity accorded to the States was subject to a number of restrictions. In fact, with their dependence on the federal grants, the States were in reality, a shadow of the autonomy, the Constitution of India apparently envisaged.

The founding fathers of the Indian Constitution placed the federal organization of India within the confines of the parliamentary responsibility. In a parliamentary structure the Revolution of authority is vertical in contrast to the horizontal decentralization of power in a federal division of powers. All parliamentary governments underline the precedence of the parliament and its right to make laws, subject them to its review and amend the constitution. In a parliamentary form, the division of powers, judicial supremacy and separation of powers, the most essential ingredients of a federation, are subordinated to the Paramountcy of the parliament.

The founding fathers of the Indian Constitution sought to combine the two principles: Judicial supremacy, without which no federation would survive and parliamentary sovereignty, which could not be conceived except in terms of parliamentary responsibility. The acceptance of the Paramountcy of the parliament left the evolution of the constitutional imperatives in India within the purview of the Indian Parliament and not the Indian judiciary. In the United States, the evolution of the federal relations was determined by the judiciary and the Supreme Court of the United States widened the implied authority of the federal government to ensure its precedence in the American federal structure. In India the process was accomplished by the Parliament, not by widening any area of implied powers, but by subordinating the States to its plenary authority to make law and repeal it. The parliamentary supremacy and judicial precedence are irreconcilable and inherent conflict between the parliament and the judiciary in India did not take long to precipitate. Ultimately, however, the paramountcy of the Parliament prevailed.

Sub-national Autonomy

Indian federalism did not represent the division of political authority on the basis of distribution of powers between the federal authority and subnational identities. It was based upon the division of political authority which was not related to subnational pluralities in India and which underlined the integration as well as the autonomy of political power in a concrete political system. The Indian federal organization was embedded in an environment which was culturally plural and diverse, but its boundaries were clearly defined, and did not overlap with the cultural, linguistic or religious pluralism of the Indian society.

The Jammu and Kashmir State alone involved a variation of the federal principles the Constitution of India envisaged, as it symbolized a federal relationship which was based upon the recognition of special political identity of the State for its Muslim majority character.

Jammu and Kashmir too, like the other Indian Princely States did not represent a subnational identity except that the Muslim formed a dominant majority of its population. The people of the State, among them the Muslims as well, constituted an ethnic, cultural and linguistic plurality which was scattered over three main regional divisions: Jammu, Kashmir, and the frontier division of Ladakh and Baltistan. The province of Jammu was dominantly Hindu; the people spoke various dialects of Punjabi and other Pahari languages, and belonged to the Sanskrit Aryan stock. The people of Kashmir were predominantly Muslim with a small minority of about six- percent Hindus and Sikhs, by and large, forming a cultural homogeneity and spoke Kashmiri and several dialects of Pahari. The frontier division of Ladakh and Baltistan, was geographically a part of the Tibetan tableland, and constituted two distinctly different ethnic, cultural, religious and linguistic denominations: the Tibetans inhabiting the district of Ladakh and the Baltis and Dardis, inhabiting the districts of Baltistan, Gilgit and the Dardic dependencies of the Jammu and Kashmir State. The people of Ladakh were of the Mongolian stock, professed Buddhism, spoke variants of Tibetan and constituted a part of Tibetan culture. The people of Ballistan were Muslim, mainly Shiite, spoke Balti and various dialects of Dardic and were akin to the cultural patterns of the Dardic principalities of Central Asia, some of which formed the dependencies of the State.

When the Constitution of India was framed, the National Conference claimed a separate political identity for the State on the basis of the Muslim majority character of its population. The institutionalization of political power on the basis of the recognition of the Muslims of the State, as a subnational identity, a principle which the Constitution of India did not recognize in respect of any other religious denomination, had deep and wide repercussions on the evolution of the political personality of the State and its relations with the rest of the country. The implications of the recognition of religious subnationalism as a factor of federal relationships were deep for the entire federal system of India and the autonomy of the States and in due course of time exposed the inherent dangers in subjecting federal division of powers to subnational pluralism. Within a short time the quest for Muslim precedence came into sharp conflict with the religious, minorities inside the State, as well as the secular Operatives of the federal government. Evidently federalization, as it was Conceived for Jammu and Kashmir, provided a mechanism for the protection of the religious denomination of the Muslims in the State which claimed a separate cultural identity and a specific vested interest in its sociology on the basis of geographical distribution of power. The recognition of the separate identity of the Muslim majority in the State, however, subordinated the Hindus, Sikhs and the Buddhist to the operatives of Muslim precedence. The autonomous authority of the State, based upon Muslim subnationalism resulted in the establishment of an oligarchic domination over the minorities and other weaker sections of the State's population.

The conflict between the imperatives of Indian secularism and Muslim subnationalism was deeper. In less than two years, the conflict came to surface and the National Conference swung to a position, where it sought to establish a balance between the Indian federal authority and the subnational autonomy of the State which in effect purported to secure the State, a position outside the federal organization of India. In 1953, the State Government was dissolved, and fresh federal operatives evolved to govern the relations between the State and Center. However, the basis of the new federal operatives too, continued to remain committed to the Muslim subnationalism of the State.

 

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