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COMPARATIVE FEDERALISM: TESTING INDIAN CONSTITUTION ON THE YARDSTICS OF IVO D. DUCHACEK

Yogesh Pratap Singh

“Personally, I do not attach any importance to the label which may be attached to it-whether you call it a federal Constitution or a unitary constitution or by any other name. It makes no difference so long as the Constitution serves our purposes.”

———-Dr. Rajendra Prasad

An acute problem today concerns the nature of the constitutional structure of India. Does the Indian Constitution represent Federalism or not? Some constitutional experts have described the Indian Constitution as “quasi-federal”.[i] Others have used stronger words to say that it is only federal in appearance, but in essence and spirit it is unitary.[ii] Hence an enquiry into the working of federal government begins of necessity with some discussions about the meaning of the term.[iii] There is no accepted definition or theory of federalism. Nor is there and agreement as to what federalism is exactly. The term itself is unclear and controversial.[iv] The idea of federalism in the modern sense can hardly have reached any political thinkers till the time when the American constitution was drawn up.[v]

 It is often used to describe a process of combining territorial communities that previously had not been directly joined into a new unit of common interest, policy and action, or the opposite process of deconcentration of power (that is, decentralization that endows territorial units with autonomous sources of authority). Federalism in terms of restraint on the political power[vi] is said, “the juxtaposition and counterbalance of two territorially differentiated sets of state sovereignties. The existence of interfederal barriers restricts the power of the central state toward the member states and vice-versa.[vii]  In contradistinction to the monolithic unitary state organisation, federalism presents a system of territorial pluralism.[viii] In addition, federalism is also a term used to describe the result or the tools of the federalizing process-a constitutional federal system and its institutions. At times, the federalizing process may even refer to ecumenism.[ix]

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One of the famous shorthand definitions of federalism speaks of “an indestructible union of indestructible units”[x] which seems on the one hand to separate a federal from a confederal system[xi] by ruling out secession and on other hand to distinguish a federal from a unitary system by ruling out total elimination of provincial autonomy. The result is a compromise between two territorial forces pulling in opposite directions: One toward national unity, which if excessive, could suppress diversity and eliminate provincial autonomy, and the other toward diversity, which, if excessive, could dissolve the federal nation into its several constituent units.

Constitution

Division of Power

By a federal system we mean a constitutional division of power between one general government[xii] (that is to have authority over the entire national territory) and a series of sub national governments[xiii] (that individually have their own independent authority over their own territories, whose sum total represents, almost the whole national territory.

Federalism operates as a safety valve for dissent, discomfort, and dissatisfaction, channelling these three ideas into relatively more manageable outlets of constitutional structure. Commentators believe that Indian federalism has quarantined conflicts within states or sub-state units and thus successfully prevented national conflagration.[xiv] “Top down” Indian federalism is a prominently unitary or, at best, a quasi-federal structure, as opposed to a “bottom up” model as in the United States, where virtually sovereign states cede sovereignty to form a union. Surprisingly, over the last sixty years, this quasi-federal entity has become increasingly more federal and considerably more decentralized. It has therefore been correctly described as “inadvertent or unintended federalism.”[xv]

Administrative efficiency, legislative and executive flexibility, and local initiative, participation, and responsibility justify decentralization in both unitary and federal systems. But in a federalizing process there are other important goals to achieve. Federation is not an end in itself but a means to attain some or all of the following objectives:

  1. Protection against external pressures, especially military dangers, can be achieved.
  2. Benefits to all may be derived from binging the diplomatic and military assets of member units into a common pool—benefits that may be translated into greater internal security and progress or, possibly, external expansion.
  3. Economic advantages may accrue to all from planning, working, and exchanging products in larger market and production area.
  4. The federal process is often also a means of preserving rather than building a new national unity out of many components. By timely concessions to, and constitutional recognition of, territorial communities and their desire for self-rule, a formerly unitary nation-state may be re-formed and its national unity saved.

Ivo D. Duchacek provides ten yardsticks of federalism in the form of ten questions to be directed at the national systems that are considered to be or claimed to be federal.

YARDSTICK ONE: EXCLUSIVE CONTROL OVER FOREIGN RELATIONS

(Has the Central Authority exclusive control over diplomacy and defence as befits a nation-state in its relations with other nation-states?[xvi]). Whether the end of a federal process is to create and maintain a new nation or to preserve and old one on a new (federal) basis, the emphasis is on making the federal nation-state a separate, sovereign, and identifiable unit vis-a-vis other nation-states. As with unitary states, a federal union’s main purpose is to present itself on the international scene as possessing the power and the will to speak on behalf of its component units with one single legitimate voice; however, this purpose is in contradistinction to an alliance or a league of states.  Unless the component units agree to this basic point, there is little likelihood that an alliance can transform itself into a federal nation; one of the reasons for the failure of the efforts in East Africa to combine Uganda, Tanzania, and Kenya into one federation was the insistence of the leaders of Uganda on retaining the right to conduct separate Ugandan foreign policy.

In a federation, then, it is the national (federal) government in whose hands lies the ultimate control over the major issues in foreign policy and the conduct of peaceful or violent international relations. The tasks of both the diplomatic service and the armed forces mirror the preoccupation, interests, and goals of the federal nation rather than those of nation’s territorial components. The United States Constitution, for instance, prescribes that:[xvii]

“No state shall enter into any Treaty, Alliance or Confederation…….No State shall, without the consent of Congress, keep Troops, or Ships of War in time of Peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded or in such imminent danger as will not admit of delay.”

Similarly, 1848 Constitution of Switzerland gives the federal government “the sole right to declare war and conclude peace, and to make alliances and treaties, particularly customs and commercial treaties with foreign nations.”[xviii] The Swiss cantons can only exceptionally engage in minor direct diplomatic negotiations with neighbouring nations (boundary and customs problems and so on).

Indian Constitution in its seventh schedule includes  entries related to diplomacy and defence, war and peace, treatise, the United Nations, pilgrimages outside India, piracies and crimes committed on the high seas or in the air and offences against international law in the Union list, which gives power to the federal government.[xix]

In the text of few constitutions that claim to be federal and not confederal, there are exceptions to this rule. The seemingly most important exception may be found in the Soviet Constitution of 1936 that was amended in 1944 to include the following provisions:[xx]

Each Union Republic has the right to enter into direct relations with foreign States and conclude agreements with foreign States and exchange representatives with them.

Each Union Republic has its own Republican military formations.[xxi] By amending his own constitution, Stalin transformed the Soviet federal union, on paper, into a very loose league of sixteen sovereign socialist republics. We say “a very loose league” because even the United States Confederation of 1781 refused to give its thirteen components states the right of direct diplomatic relations with foreign nations.[xxii]

Similar provisions for federal monopolies are also found in the Indian Constitution. The Union government in India has absolute control over these two matters of diplomacy and defence. Article 246 read with Schedule VII gives such powers only to the Union Government. Schedule VII specifies the powers or the subject matter on which the Union Government, the state governments and both concurrently can exercise power. List I of the Schedule VII has the following Entries which ultimately fall under the exclusive jurisdiction of the Union Government.


 

LIST I (UNION LIST): SCHDULE VII

  1. Defence of India and every part thereof including preparation for defence and all such acts as may be conductive in times of war to its prosecution and after its termination to effective demobilization.[xxiii]
  2. Naval, military and air forces; any other armed forces of the Union.[xxiv]
  3. Naval, military and air force works.[xxv]
  4. Foreign affairs, all matters which bring the Union into relation with any foreign country.[xxvi]
  5. Diplomatic, consular and trade representation.[xxvii]
  6. Participation in international conferences, associations and other bodies and implementing of decisions made thereat.[xxviii]
  7. Entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries.[xxix]
  8. War and Peace.[xxx]

These entries speaking to the powers of the Union Government are exclusive and the States cannot interfere with the exercise of these powers. Along with these Entries, there are other entries in the same list which go to support the Union Government.[xxxi] Over and above these Entries, Article 53(2) vests the President with the Supreme Command of the Defence Forces of the Union.[xxxii] Article 352, 353 and 355 also speak about the Union’s power during the times of national emergency. Article 51 which speaks about the promotion of international peace and security is also provided under the Directive Principle of State Policy.[xxxiii] The existence of these powers under the Indian Constitution is more elaborate than in the American Constitution. Thus the Indian Constitution answers the first of the ten yardsticks of federalism more positively than the American Constitution.

YARDSTICK TWO: IMMUNITY AGAINST SECESSION

(Is the federal union constitutionally immune against dissolution by secession?[xxxiv]) No nation-state is, or can be, immune against territorial secession. In some instances, constitutions clearly forbid it or proclaim or imply that the union is eternal[xxxv] and therefore no territory can secede.

The United States Constitution does not contain any explicit interdiction of secession. Implicitly it may be argued that the Preamble’s first sentence, which stresses a “more perfect Union,” should be read with conjunction with the Articles of Confederation, which it amended and which had committed the thirteen states to a “perpetual union.” In the first seventy years of the United States existence, there could be some doubt about the right of national self-determination of the federal components. The Civil War, however, “conclusively settled the question whether or not a state can constitutionally withdraw from the Union. In the words of the Supreme Court, ours is ‘an indestructible union of indestructible states’.”[xxxvi]

We may now read some of the provisions of Indian Constitution. Constitution declares: India, that is Bharat, shall be a Union of States.[xxxvii] It empowers Parliament to admit into the Union, or establish, new States on such terms and conditions as it thinks fit.[xxxviii] Further Parliament can by law 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; increasing the area of any State; diminishing the area of any State; altering the boundaries of any State; or altering the name of any State.[xxxix] The proviso to that Article requires that the Bill for the purpose shall not 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. On a conjoint reading of these Articles, it becomes clear that Parliament has the right to form new States, alter the areas of existing States, or the name of any existing State. Thus the Constitution permits changes in the territorial limits of the States and does not guarantee their territorial integrity. Even names can be changed. Under Article 2 it is left to the Parliament to determine the terms and conditions on which it may admit any area into the Union or establish new States. In doing so, it has not to seek the concurrence of the State whose area, boundary or name is likely to be affected by the proposal. All that the proviso to Article 3 requires is that in such cases the President shall refer the Bill to the legislatures of the concerned States likely to be affected ‘to express their views’. Once the views of the States are known, it is left to Parliament to decide ‘on the proposed changes. The Parliament can, therefore, without the concurrence of the concerned State or States change the boundaries of the State or increase or diminish its area or change its name. These provisions show that in the matter of Constitution of States, Parliament is paramount.

YARDSTICK THREE: INDEPENDENT SPHERE OF CENTRAL AUTHORITY

(Is the exercise of the Central Authority, as it reaches all citizens, directly independent of the individual approval and resources of the component units?[xl])

In a federal system, powers are so divided “that the general and regional governments are each, within a sphere, co-ordinate and independent,”[xli] notes an English authority on the subject of federalism. Logically, an authority is not really divided unless its sectors can operate within their assigned sphere independently one from the other. If the central authority were politically and financially dependent in each of its moves upon the component units, we could define such an arrangement as an alliance or confederation, but we could not speak of an emergence of a federal nation and its government.

How can some of the constitutions whose drafters label them as federal pass this third test, which aims at differentiating a confederal from a federal system?

First, there is there is the issue of financial resources. Federal constitutions make the federal government independent of the constituent units by granting it the right to levy direct taxes and enforce the federal laws. This also implies that the rightful inhabitants of the federal state are federal citizens in addition to[xlii] or instead of[xliii] their local citizenship.

The federal government must be able to finance its operations, especially in view of the fact that it is, as we have indicated previously, in charge of international relations and defence; in modern times, the welfare functions have been added to the first two traditional ones.

A guarantee of the right and power of the provincial government to finance its operations cannot and must not tax the federal power out of existence. This was partly the issue in the famous case McCulloch v. Maryland in 1819, when a bank (a quasi- governmental institution incorporated by the United States and established in Baltimore) issued notes in violation of a Maryland law that required all banks to pay an annual tax of 15,000 dollars or to pay a stamp tax on each bank not issued. The controversy was decided by the Supreme Court in favour of the federal government. In Chief Justice John Marshall’s words:

A government intrusted with such ample powers [to lay and collect taxes, regulate commerce, conduct war, etc.], on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be intrusted with ample means for their execution. It can never be their interest, and cannot be presumed to have been their intention, to clog and embarrass its execution, by withholding the most appropriate means.[xliv]

Some echo of this early American rule protecting federal enterprises against tax voraciousness of component units in a federation may be found in modern federal constitutions that must also protect atomic and conventional power plants and other economic enterprises established and run by a welfare federal government against the taxing powers of the states. The United States Constitution gave the Congress the power to lay and collect taxes, duties, imposts, and excises,[xlv] but until 1913, in principle direct taxes were to be apportioned among the several states according to population. In 1913, the Sixteenth Amendment gave the Congress the right to impose income taxes “without apportionment among the several States, and without regard to any census or enumeration.”

In India, the Union Government is independent of the constituent units and can levy direct taxes and enforce federal laws. The Union finances national programmes to be implemented by the States. The tax heads or bases have been specifically mentioned in the Constitution itself, and divided between the Union and the States. The entire gamut of financial relations has been provided for under the constitution itself. Along with the tax bases mentioned in Schedule VII, Article 268 to 281 also speak about the tax sharing between them. Further, the Union property is exempted from the state taxes[xlvi] and vice versa.[xlvii] The lessons the Americans have learnt through McCulloch v. Maryland, have been thus taken into consideration by the makers of the Indian Constitution. Further the Union Government can make grant-in-aid to the States every year.[xlviii] Thus, the Central authority is very much independent of the individual approval and resources of the component units with regard to the financial as well as other resources.

YARDSTICK FOUR: AMENDING THE FEDERAL CONSTITUTION

(Who has the ultimate control over amendments to the federal Constitution?[xlix])

If the American model of federalism were viewed as the only pure one, the fourth yardstick may be expressed as retention of veto over constitutional changes by a majority of, but not all, component units. According to many experts this is by far the most reliable yardstick of federalism when the text of constitutions is analyzed. If the ultimate control over constitutional changes is in the hands of all the component units, such a system, based on unanimity, seems not to have moved from an association of states to a new federal nation. A new supraterritorial identity, institutions, and power have not really been created if for any amendment the consent of every single component unit is required. If on the other hand, only a vote of the central parliament is required (with or without a subsequent plebiscite). Such a system, based on a national majoritarian principle, makes the amendatory process indistinguishable form that in a unitary system. This is so, for instance, in the Soviet case when a two thirds  majority in both houses of the central parliament is sufficient  to adopt any type of amendment , including one that would transform the Soviet federation into a unitary state and eliminate  all fifteen union republics  altogether . Similarly , the Yugoslav federal  Constitution  can be amended  without ratification by the component republics; a popular referendum is, however, required when two of the chambers composing  the quinticameral  Federal  Assembly  refuse to accept  the  motion to alter the  constitution as passed by the Federal Chamber and the Chamber of Nationalities. Some constitutions distinguish between amendments that affect the federal distribution of power and those that do not do so; only in the first case is the ratification by the component units required. The Indian Pakistani Constitutions have such provisions.

    The problem with such a differentiation between federal and non-federal amendments is that a constitutional change that does not seem to affect the federal division of powers may ultimately, in conjunction with environmental changes, affect it in a major way. By contrast, in the United States, all amendments, even if they do not affect the federal distribution of power, require ratification by three fourths of the states. One type of amendment cannot be passed and ratified by even forty-nine states out of fifty; the last sentence of Amendatory Article 5 states that “no State, without its consent, shall `be deprived of its equal suffrage in the Senate.” This is considered the basic point of the whole American federal bargain, as expressed in the Connecticut Compromise at Philadelphia in 1787. Some legal experts have, however argued that the Amendatory Article could be amended and that its new version could eliminate the equal suffrage clause. In an abstract legal framework this may be so; in practice, it seems politically out of the question.

Under the Indian Constitution the power and procedure for Amendments have been provided under Article 4,[l] Schedule VI and principally under Article 368 of the Constitution. The power to initiate the amendments is vested with the union in all the cases. There is no need for the ratification by the states for all amendments. However, Article 368(2) indentifies certain types of Amendments which essentially need the ratification by at least half of the states. The Amendments which need such ratification by at least half of the states are provided under Article 368 (2) (a) to (e).[li] Thus, it is clear that when Amendments are likely to be affecting the federal structure to some extent, ratification by not less than half of the States is necessary.

The four  yardsticks discussed so for were intended to distinguish so for were intended to distinguish a federal nation-state from an association or confederation of sovereign  states .Although these are helpful in discovering national variations of constitutional approaches to discovering national  Variations  of constitutional approaches to unity  in diversity, they failed to provide us  with a fully reliable criterion. In the following chapter we shall examine some other yardstick of federalism, the purpose of which is to draw a line between a federal and a unitary constitutional system.

YARDSTICK FIVE: INDESTRUCTIBLE IDENTITY AND AUTONOMY

(Are the component units immune to elimination of their identity [antedating or postdating the Union] and authority?[lii])

Like all the other preceding and following ones the fifth yardstick has to be qualified too. First, the very term indestructible is too absolute for the world of politics, where nothing can be deemed immune to change. Like men, political institutions are born; then they mature, prosper, live, become sick, and die a natural or a violent death. Indestructibility at best should be understood as a “relative eternity” or perhaps simply longevity.

Second, a unitary system in theory can, but in practice rarely does, eliminate units of local self-rule. The reason for the restraint is not a constitutional prohibition but politically wise respect for territorial pluralism or simply concern for greater administrative efficiency that overburdening of the national centre would jeopardize. In a unitary system, Paris has no more intention to take over the administration of Marseille than Sacramento plans to capture the administration of Los Angeles. “Self-Government at the King’s Command” may sometimes be not less but more significant than under a federal constitution.

Third, there are numerous unitary systems that promise local autonomy, leaving its scope and mechanism to future laws; many unitary constitutions not only guarantee the principle of local autonomy but describe its scope at some length and add specific provisions for autonomous legislative and executive organs, endowed with local taxing powers. These constitutions not only do not claim to be federal but stress their unitary character. In another context we have already mentioned some of such cases: the People’s Republic of China, whose Constitution stresses its unitary nature but guarantees different levels of broad regional-ethnic autonomy; Italy’s Constitution promises the establishment of regions, endowed with official autonomous organs (regional council, executive giunta, and its president), financial autonomy, taxing powers, and a share in national taxes. The unitary features,[liii] on the other hand, are manifest in the provision that the central authority is to be represented in each region by a commissario with a veto power over local administration and with primary responsibility to the national capital. The regions are represented by senators on a proportional basis (one senator for every 200,000 inhabitants). We have also previously mentioned Czechoslovakia, which before 1968 asserted its unitary character but emphasized the equality and indestructibility of its two component peoples: “The Czechoslovak Socialist Republic is a unitary state of two fraternal nations, possessing equal rights, the Czechs and the Slovaks.”

There are other cases of often undecipherable mixtures of unitary intentions with federal pretense or, on the contrary, federal intentions that dread the implications of full federalism and therefore the word itself. A good example is the first provisional Basic Law (Loi Fondamentale) of 1960 of the Congo, which replaced the former highly centralized Belgian colonial rule by relatively generous grants of power to the provinces. However, under the impact of a conflict between the Congolese federalists and Unitarians the Constitution avoided the use of the adjectives “federal” or “unitary” in the description of its nature. The second Constitution (Luluabourg draft), which was approved by the Congolese electorate in 1964, appears more federal than the first one in both tone and content. The twenty one component units of the Congolese state are listed by name. Their indestructibility seems certified. The capital, Kinshasa (Leopoldville), is the twenty-second unit. There are lists of powers given to be exercised by the national centre, the provinces, and concurrently. Residual powers are to be kept by the provinces. All that sounds federal. Yet the term federal, which was part of the initial draft, had finally to be omitted. There were still many groups  (trade unions in particular) that thought a unitary system combined with decentralization might preserve the unity of the Congo better than federalism, which may lead to tribal secessions and territorial disintegration.

The new Constitution of Uganda (1996) states[liv] that the central Parliament “shall have power to make laws for the peace, order, and good government of Uganda with respect to any matter” – a clearly unitary feature – but its Sixth Schedule enumerates some exclusive powers retained by the component kingdoms. Article 2 of the Constitution seems to make them “indestructible” by listing each of them by name: “Uganda shall consist of Kingdoms, Districts, and the Territory of Mbale. The kingdoms shall be the Kingdom of Ankole, the Kingdom of Buganda, the Kingdom of Bunyoro, and the Kingdom of Toro.”

The above samples remind us strongly of what the French scholar Maurice Duverger once wrote about the resistance of political systems to be classified in neat, watertight categories: “As a matter of fact, there is no difference in kind, only in degree: decentralization is a mitigated federalism; and federalism is a very emphasized decentralization.”

Listing[lv] of constituent units is usual and normal in constitutions that claim to be federal. The Constitution of the United States, however, failed to list the founding states, since their delegates were far from certain that all would accept their draft. For the same reason, the Preamble uses the formula “We the People” instead of enumerating the constituent units. The names of twelve of the original states (the thirteenth, Rhode Island, was not present) appear only at the end of the last article when the names of the delegates, starting with George Washington of Virginia, are listed, indicating the states they had represented in Philadelphia.

When India emerged as an independent State, it had nine fully autonomous states, eight less autonomous states, ten minor states, called Part A, B and C States respectively and federally administered territories called Union territories. This has been made possible by the Reorganisation of States in 1965 mainly on linguistic considerations. Thus the power to alter the boundaries of the States or change the name of the existing ones is given to the Union Parliament.[lvi] Although the power for the total elimination of a State’s identity is available with Parliament under Article 3(a) of the Constitution of India, it has not taken place so far.

YARDSTICK SIX: RESIDUAL AND SIGNIFICANT POWERS

[Have the component units retained all the powers that the constitution has not given to the central authority? And are these retained powers significant or marginal?[lvii]]

The United States constitution states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”[lviii] In the words of Madison “The powers delegated by the proposed Constitution to the Federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”[lix]

Some Americans too readily assume that this should be so if federalism is to be prevented from slipping down into an abyss of centralism. Yet, in the majority of federal systems today we find different constitutional provisions: powers given to the provinces are enumerated, the rest of the power being reserved by the central authority. This is so, for instance, in Canada, whose basic federal law was prepared in the period following the American Civil War. It was then generally believed that the residual powers of the American states were one of the main reasons for political confusion and civil war. Modern federal constitutions, like those of India, Pakistan[lx] and Burma contain long and detailed lists of powers reserved for the central authority (Union List), powers reserved for the component units (State List), and powers exercised by both elements (Concurrent List), with usually the provision that if the central authority chooses to exercise some of the concurrent powers it thus pre-empts the state powers.

More important than the location of residual powers in one or the other level of government is the requirement that in a true federation.

“there must be some matter, if only one matter, which comes under the exclusive control, actual or potential, of the general government and something likewise under the regional government. If there were not, that would be the end of federalism.[lxi]

Here one question must be posed: Does it matter or not what kind of power is left to the exclusive domain of one or the other level of government? Territorial distribution of authority in a federal system has never been intended to be on a fifty-fifty basis; a federal system by definition favours the national power by placing in its hands defence, war, and taxing powers. But if through a constitutional division of power, the federal centre were to retain 99 percent of the power, leaving the territorial components with 1 percent, would it still be correct to speak of a federal system? If, on the other hand, the central authority were left with only some symbolic or ceremonial powers, it would not be a nation-state at all, only an alliance or a loose league. Evidently, here the old problem of quantitative measurement of political powers appears again. Is it indeed possible to quantify power so as to speak in terms of 99 percent to 1 percent? Furthermore, because power is only a means to an end, there arises the problem of also measuring the value of various ends that one or the other level of government may desire to attain. What seems provincially or locally vital may be viewed nationally as marginal and vice versa.

This type of arrangement in the division of powers is not followed by all federal states. In some of them residuary powers are left with the federal Government and in some specific distribution is mad e along with certain concurrent powers. In India, apart from making three lists in Schedule VII (Union, State and Concurrent powers), the residuary powers are vested in the Union and not to the states.[lxii] However, the States under Indian Constitution do enjoy some “real powers” in all matters listed in List II as well as some in List III of the same Schedule. Thus, to a large extent the Indian Constitution can be said to be satisfying this yardstick too, irrespective of the fact that the residuary powers are with the Union Government.

YARDSTICK SEVEN: BICAMERALISM AND EQUAL REPRESENTATION OF UNEQUAL STATES

(Is the collective sharing in federal rule making adequately secured by equal representation of unequal units in a bicameral system? What are the constitutional provisions for collective sharing in the executive and judiciary rule implementation?[lxiii])

Often viewed by Americans as an essential yardstick of federalism is the Connecticut compromise, by which the American founders agreed on a proportional representation of unequal states in the lower house and an equal representation of unequal states (two senators per state) in the upper house (the Senate, a federal chamber to replace the British concept of a hereditary, aristocratic one).[lxiv] The United States bicameralism is a true and full one because both houses are equal in matters of legislation: no law can be enacted unless both houses agree on the same text. This is in contrast with many other bicameral systems in which the upper house often enjoys only a limited or suspensive veto over legislation. Furthermore, unlike the parliamentary system, the American lower house does not create the national executive branch (the cabinet). And the executive branch is not directly responsible to the lower house. The Senate’s advice and consent to executive appointments and treaty making make the Senate, with its one hundred senators, actually a powerful body and a partner of the national executive; this is in contrast with parliamentary systems, where this role is exercised by the lower house.

Originally, the Senate could have been viewed as a guarantee and a channel for the decisive influence of the states on the shape and direction of the national policy. Because the practice of instructing senators disappeared more than a century ago and because their election has passed from the hands of the state legislatures to the hands of the people, it is debatable whether a senator still represents today his own state interests or, rather, the multistate regional interests (the South, the Midwest, or the East), functional divisions (agriculture, cities), or his party. A similar observation can be made about the Australian Senate, created to safeguard and represent state interests, which has now “become a body in which divisions are along strict party lines.”[lxv]

The principle of equal representation of unequal component units has been adopted by many federations. The Australian six unequal states are represented equally in the Senate; in Switzerland, too, forty-four councillors represent its twenty-two cantons (actually, Switzerland is divided into twenty-five units because three cantons have been subdivided into half-cantons, each represented by one councillor). The principle of equal representation is also present in all Latin-American constitutions as well as in the communist federations. In federal Czechoslovakia now, the highest legislative organ is the Federal Assembly (composed of the House of the People and the House of the Nations). The House of the People is composed of 200 deputies, whereas the House of the Nations is composed of 150 members, half of whom are elected in Bohemia-Moravia and the other half in Slovakia. In the Soviet Union, each union republic is represented by twenty-five deputies in the Soviet of Nationalities, the federal chamber of the Supreme Soviet, the highest legislative organ (the other house is called the Soviet of the Union).

Furthermore, the Constitution provides that each of the fifteen union republics is represented by one deputy in the Presidium of the Supreme Soviet, the parliament in miniature that fulfils a dual role: to act as a permanent standing committee on behalf of the national legislature when that is not in session and to act as a collegial president, a ceremonial head of the Soviet Union. The Presidium is composed of one chairman, one secretary, fifteen members elected by the Soviet of the Union, and fifteen vice-chairmen representing the constituent units of the Soviet Union.

Soviet federalism is a multilayer one; its largest unit, the Russian Republic, for instance, is a federation itself. In addition, in the territories of some of the union republics, federal or not, there are autonomous republics, autonomous regions, and national districts with the right of direct representation in the central legislature. Unequal autonomous republics are equally represented by eleven deputies each, autonomous regions by five deputies each, and national districts by one deputy each. The degree of direct representation in the national legislature is related to the degree of autonomy granted by the Constitution.

In India, collective sharing in federal rule making is secured by unequal representation of unequal units in the bicameral system. The allocation of seats to the States in the Council of States in the Parliament is provided under Schedule IV of the constitution. Apart from this, twelve members are nominated by the President to the Council of States taking the total strength of Rajya Sabha to 250.[lxvi] No constitutional provision enquirers that judges to the Supreme Court or various high courts should be from one State or the other. ON the other hand, by way of convention, judges are appointed to both the courts which interpret the law and the constitution to prevent an opinion that judgeships of the Supreme Court are monopolised by a few states. The judges can be moved from one high court to another, thus making the federal work in its policy control apparatus territorially neutral.[lxvii]

YARDSTICK EIGHT: TWO SETS OF COURTS

(Are there two independent set of courts, one interpreting and adjudicating the federal laws and the other the state laws?[lxviii])

Two sets of courts may seem a minor criterion, but some find it important. Commenting on the nationally controlled judicial system in Venezuela, one author writes, “In 1945 the states surrendered their last major power when they ratified a constitutional amendment which conferred upon the national government exclusive control of the judicial system.” Herman Finer lists the absence of a dual federal-provincial judicial system as one of the reasons for which the Soviet Union does not qualify as a federation. He lists eight criteria of federalism: (1) control over the amendments; (2) assignment of powers to the centre as compared with the residue left to the states; (3) special representation, and veto and deadlock powers preserved by the component units in the upper chamber; (4) existence of a court that stands above the Union and the territorial units; (5) independent financial resources; (6) exclusive control of foreign relations by the Union; (7) independent party organization in the several units;  and (8) existence of two independent sets of courts, one for the Union, the other for the units. On all these eight counts, Herman Finer argues, the Soviet Union fails to pass the test of federalism.[lxix]

Actually, only a few federations – the United States and, with modifications, Mexico and Brazil – have developed two parallel networks of courts: federal courts to adjudicate national laws and provincial courts to adjudicate local laws. The United States, for instance, has established a complete judicial hierarchy on both the federal and the state levels. In the federal-court structure there are, in ascending order, district courts, circuit courts of appeal, and at the top of the federal judicial pyramid the Supreme Court. In each state another judicial pyramid of state courts culminates with the state Supreme Court. The two systems, however, are not “federally fully separate”, not only is the federal Supreme court the highest court of appeal from both networks but the two systems actually interlock by a degree of concurrent jurisdiction, shared by both the federal and the state courts. Only some matters are reserved for the exclusive jurisdiction of the state courts. Some other matters are under the exclusive jurisdiction of the federal courts, such as crimes and offences against the United States; prize, patent, copyright, and some bankruptcy cases; civil cases of admiralty and maritime jurisdiction; cases to which a state is a party; and cases involving foreign ambassadors.

In all the other federal systems we find different variants of a single integrated court system, usually provincial or state courts, topped by a federal highest court of appeal. For special cases, sometimes a federal Court is added to the system. For instance, in Canada, in addition to the Supreme Court there is a special federal Court of Exchequer and admiralty. In Switzerland the “Organization of the judiciary, legal procedures and the administration of justice remain in the cantons”[lxx]; the cantonal courts adjudicate both federal and cantonal laws. A federal Tribunal stands above the whole system as a court of appeal over the cantonal courts and as a court of original jurisdiction in some federal matters. West Germany, too, has a single integrated system of state courts with a Federal Supreme Court at the top. The state courts and their procedures are, however, regulated and made uniform by federal codes. In Communist federations each of the component territorial units (union republics and their subdivisions in the Soviet Union; republics in federal Yugoslavia) has its judicial system that is topped by the republican Supreme Court, which, in turn is topped by the federal Supreme Court.[lxxi] They adjudicate uniform Soviet codes. The Soviet network of procurators that play such a decisive role in all criminal proceedings is, on the other hand, rigidly centralized under the supervision of the powerful federal office of prosecutor general. In the British Commonwealth federations the Constitution permits the establishment of a dual (federal and state) judicial system, but only the state system is in actual operation. This is so, for instance, in Pakistan, India, and Australia.

In India, there is a unified judicial system with the Supreme Court as the apex body followed by the twenty one other high court. The Supreme Court as well as the high courts can interpret the Constitution, and the Union as well as the State laws. The judges for all these courts are appointed by the Union in consultation with the State authorities for appointments to the High Courts.[lxxii] The Indian Constitution authorizes Parliament to establish “any additional courts for the better administration of federal laws.”[lxxiii] But it has chosen not to do so. There are only state courts supervised by India’s federal Supreme Court.

A similar situation has developed in Australia, whose Constitution[lxxiv] provides that the federal Supreme Court (the High Court of Australia) shall “hear appeals ….. from all judgments of any other federal court ….. or any other court of any State”; yet the Australian Parliament has so far not established a complete federal judicial hierarchy but has mostly employed the state courts for federal purposes. In Canada the provinces have established as the Constitution permits, their own judicial systems, and they regulate their procedure in civil matters. The central government, however, appoints and pays all the judges, regulates the procedure in criminal matters, and has conferred upon provincial court’s jurisdiction in most matters of national law. The whole system, again, is topped by a supreme court that has an appellate jurisdiction in civil and criminal matters from the provincial courts.

If a fully developed parallel federal and state court systems were a decisive yardstick of federalism, only the United States (and, with some qualifications, Mexico and Brazil) could pass the test.

YARDSTICK NINE: THE SUPREME COURT

(Is there a judicial authority in the central authority but standing above the central authority and the components units to determine their respective rights?[lxxv])

In all systems, federal as well as unitary, there is a need for an impartial agency that can ascertain the meaning of the nation’s supreme law, the constitution, and that, in light of its findings, can determine the compatibility of any given law or official act , national or local, with the constitution. This may lead and has led to a broad concept of the judicial review, the right of the courts to annual or confirm the validity of laws passed by national or states as exercised by the Supreme Court, has been in modern                                                                           times characterized by the Court’s support of civil rights and liberties, many unitary and federal constitutions, in one form or another, have now imitated the American theory and practice to some extent. Constitutional courts in unitary France, Federal Germany, Communist Yugoslavia, and Moslem Pakistan represent brave attempts to transplant the American institution of judicial review from its native American soil to areas somewhat less hospitable to the power of the judges to decide issues that often are political and social in nature, although presented in legalistic garb. As yet, in no country is there a real counterpart to the awesome power of the United States Supreme Court. Especially in Europe, there is some doubt concerning the wisdom of placing a few judges above the people and its elected representatives when it comes to the interpretation of the nation’s fundamental law that expresses political and social theory of the founders.

In a federal system there seems to be an even more acute need for an impartial agency, because the interpretation of the meaning of the constitution includes also the delicate original political agreement between territorial communities from which the whole federal system had issued. In its role of protector and interpreter of the federal compact and arbitrator of possible disputes about the division of power between two jurisdictional spheres, such an agency should be, ideally, independent of both the federal and the provincial governments and should stand sublimely above both.

Only Switzerland seems to be near the ideal. Not judges, but only the sovereign people of Switzerland can question the validity of federal laws (the courts may question the validity of cantonal laws): either 30,000 voters or eight cantons can challenge any law passed by the federal legislature and so either confirm its constitutional validity or annul it. A simple majority of voters decides the issue in a legislative referendum; the majority of cantons is not required. This is in contrast with a formal amendment of the Swiss Constitution, which also requires, in addition to the majority of voters in a constitutional referendum, approval by the majority of voters in the majority of the cantons.

Until 1949 Canada had another form of impartial constitutional agency, independent of both the national and the provincial governments: it was the Judiciary Committee of the Privy Council (composed mostly of the law lords of the British House of Lords), located in the British Empire’s original center, London. This is no longer so, and Canada’s Supreme Court has now become the only final court of appeal in the Dominion.

With the exception of the Soviet Union, in all the other federal systems (including Communist Yugoslavia) a judicial agency has the role of interpreter of the original federal consensus and, therefore, is arbitrator in potential jurisdictional disputes between the federal and provincial governments. In most cases it is the additional function of the highest federal court of appeal; in West Germany, however, a special constitutional court was established. In contrast with most German courts, its members are elected by Parliament; half is elected by the federal chamber, the Bundesrat, and half by a special committee of electors, reflecting the proportional strength of political parties in the popularly elected chamber, the Bundestag.[lxxvi]

In the Soviet Union, not the Supreme Court, but the permanent standing committee of the national legislature (the Presidium of the Supreme Soviet) is given the power to interpret the laws of the USSR[lxxvii], which may imply arbitrating jurisdictional disputes between the federation and its components.

In Indian also a similar situation exists. But unlike the American Constitution, judicial review is explicitly provided under article 13(2) of the Constitution[lxxviii] read with Article 14, 32 thereof. Article 131 also speaks about the original jurisdiction of the Supreme Court in any intra-federal disputes between the Government of India and one or more States, or between two or more states.  Thus there is a judicial authority in India, standing above the Central authority as well as the components units that can determine their respective rights.

YARDSTICK TEN: CLEAR DIVISION OF POWER

(Is the territorial division of authority clear and unambiguous?[lxxix])

A constitutional division of power between the center and the component territorial units is a central point in most definitions of federalism and also in our graphic model of a federal system. When we study constitutional texts we discover, however, that the dividing line between the central and the provincial powers is neither clear nor beat. There are deliberate and some unwitting overlaps in the territorial division of power just as the separation of executive, legislative, and judicial powers has never been intended nor proved possible to be absolute. Five principal over laps that blur the critical line between central and provincial powers may be noted.

  1. The federal monopoly in the field of foreign policy and defence and its implications
  2. The emergency provisions (related to 1)
  3. The concurrent power
  4. The elastic or coefficient clauses (related to 3)
  5. The lack of verbal precision, partly deliberate and partly unwitting, which may be found in all federal constitutions

The federal monopoly in foreign policy and defence, and its implications

The federal monopoly in foreign policy and defence spills over easily into the seemingly exclusive domain of provincial powers. This is actually a genetic feature of all federations because the fundamental reason for most federations is to create a nation vis-à-vis other nations, which means a nation with a unified foreign policy and a unified concept of collective defence, based on a unified defence establishment.

Under the Constitution of India also there is federal monopoly in the fields of foreign policy and defence with all its implications. The emergency powers are again with the Central government.[lxxx] Unlike the American Constitution, the Indian Constitution very clearly distributes the powers between the Union and States. Schedule VII to the Constitution contains three different lists: List I called the Union List has 97 Entries, List II called State List has 66 Entries and List III called Concurrent List has 47 Entries. With regard to List I, the Union alone has absolute power and the states cannot interfere in it. List II is with the States, Union getting the power overlap to legislate on them.[lxxxi] List III is common to both the Union and the States. However, in the event of a conflict between the Union and the State law on any of the entries in List III, it shall always be in favour of the Union, subject to the exception given in Article 254(2).[lxxxii] The Union also has the power of administrative supervision over states.[lxxxiii] Thus, the territorial division of authority under the Indian Constitution is very elaborate, clear and unambiguous. In the event of any ambiguity being felt the superior courts have the power to interpret the provisions of the Constitution to remove any doubt with regard to the sharing of powers by an exercise of review in terms of the provisions in the Chapter I of the Part XI of the constitution.

CONCLUSION

Having analysed the ten yardsticks of federalism as given by Ivo D. Duchacek, it is evident that the Constitution of India satisfies the majority of them to qualify as a federal constitution. However, it is relevant to note the views expressed by Duchacek himself in this regard. He expressed his views stating that “any yardsticks chosen to test federalism are necessarily of unequal weight and, therefore, different relevance.”

Apex court in India has not been consistent in expressing its view on nature of Indian constitution.[lxxxiv] Ever since the decision in West Bengal v. Union of India,[lxxxv] it has been the doctrine of our Supreme Court that the unitary features in our Constitution are so many that the Federal features almost disappear.[lxxxvi] In Rajasthan v. Union of India,[lxxxvii] Beg C.J. said:

“In a sense, therefore, the Indian Union is federal. But, the extent of federalism in it is largely watered down by the needs of progress and development of a country which has to be nationally integrated, politically and economically co-ordinated, and socially, intellectually, and spiritually uplifted.”[lxxxviii]

However, in 1973 better sense prevailed over Supreme Court and federalism was declared an essential feature of the Constitution and a part of its basic structure.[lxxxix]

To express general feeling, there can be no truly federal state. It all depends upon the time and different national environments. As such there can be no specific yardsticks of federalism given for all time and for all national environments. The future of India and her Constitution will depend on how the nation evolves the principles and practice of federalism suited to India whose indispensible requisite has to be unity in diversity, integrity with variety, marked by the wisdom and experience of creating a harmony between the centrifugal and centripetal forces within this sub-continent.[xc]

References:

[i] Prof. K. C. Wheare has coined the phrase “quasi-federation” as applicable to India but he has nowhere defined this term. In the opinion of the author it is not advisable to use such kind of vague term that too when there is no accepted definition of federation.

[ii] Justice P. B. Mukerjee.1967. The Critical Problems of the Indian Constitution. University of Bombay, p.128.

[iii]K. C. Wheare: Federal Government. The English Language Book Society & Oxford University Press, P. 1.

[iv] The term federalism is derived from the Latin root foedus, which means “formal agreement or covenant.”

[v]Sobei Mogi, The Problem of Federalism: A Study in the History of Political Theory. (1931),  George Allen& Unwin Ltd., London, vol. 1, p.21.

[vi]Karl Loewenstein in his book “Political Power and the Governmental Process” has given a systematic  analysis of the process of political power proceeds from the discussion of the horizontal control that operates either within one and the same power holder (inter-organ controls) or between several power holders (interorgan controls) to a different type of control instrumentality, here called “vertical controls.” Federalism works according to author as on of the vertical controls in a political set up.

[vii] Karl Loewenstein: Political Power and the Governmental Process. The University of Chicago Press, London. P.124.

[viii] Ibid.p.289

[ix] Ecumenism means to building or renewing unity among variants of a common creed or ideology.

[x] Justice salmon chase in texas v. white, 74 U.S. (7 Wall.) 700, 19L. Ed. 227 (1868), explained the necessity for the constitutional limitations that prevent concentration of power on either the state or national level: “[T]he preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution, as the preservation of the Union…. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.” Source: https://legal-dictionary.thefreedictionary.com/Federalism.

[xi]

[xii] The words “centre”, “union”, “federal” and “general government” are used interchangeably in this paper.

[xiii] The phrases “sub national governments”, “regional governments”, “constituents” and “component units” are used interchangeably.

[xiv] See generally Niraja Gopal Jayal, Unity in Diversity: Learning from Each Other: An Indian Perspective, in UNITY IN DIVERSITY: LEARNING FROM EACH OTHER CONFERENCE READER 29 (Rupak Chattopadhyay ed., 2007).

[xv] See Abhishek Singhvi, Federalism, 53 INDIAN JOURNAL OF PUBLIC ADMINISTRATION, 745, 751 (2007).

[xvi] Ivo. D. Duchacek. Comparative    Federalism. Holt Rinehart and Winston Inc, New York, 1970, p. 207

[xvii] See Article 1, section 10

[xviii] See Article 54(1) of Constitution of Swiss Confederation

[xix]See Article 245

[xx]See Articles 18a and 18b of Soviet Constitution

[xxi]All republican Constitutions were amended accordingly to include ministries of foreign affairs and defense in the list of the republican governmental departments. Although several, but not all, republics established ministries of foreign affairs and appointed ministers to direct them, not a single republic has so far established a ministry of defense or has appointed a defense minister.

[xxii] Article 6: “No state without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any king, prince or state.”

[xxiii]Entry 1

[xxiv]Entry 2

[xxv]Entry 3

[xxvi]Entry 10

[xxvii]Entry 11

[xxviii]Entry 13

[xxix]Entry 14

[xxx]Entry 15

[xxxi] See Entries 5, 6, 7, 9, 12, 16, 17, 18, 19, 37, and 41 of the Union List.

[xxxii]The supreme command of the Defence Forces of the Union shall be vested in the President and the exercise thereof shall be regulated by law.

[xxxiii]The State shall endeavor to- (a) promote international peace and security; (b) maintain just and honorable relations between nations; (c) foster respect for international law and treaty obligations in the dealings of organized peoples with one another; and (d) encourage settlement of international disputes by arbitration.

[xxxiv] Ivo. D. Duchacek. Comparative Federalism. Holt Rinehart and Winston Inc, New York, 1970, p. 207

[xxxv] Compare for instance the interdynastic federation of German states, following the loose German Confederation in 1871 (Bismarck’s Constitution): “His Majesty, the king of Prussia on behalf of the Northern German Federation: His Majesty, the King of Bavaria: His Majesty, the King of Wurttemberg: His Royal Highness, the Grand-Duke of Hessen and of the Rhine—the latter for the section of the Grand-Duchy situated south of the river Main—conclude an eternal federation to protect the federal territory and the law of the land as well as to promote the welfare of the German people. This federation shall be known by the name of German Reich and shall have the following Constitution.”

[xxxvi] Edward S. Corwin and J. W. Peltason, Understanding the Constitution, 4th ed. New York.

[xxxvii]See Article 1 of the Constitution

[xxxviii]See Article 2 of the Constitution

[xxxix]See Article 3 of the Constitution

[xl] Ivo. D. Duchacek. Comparative Federalism. Holt Rinehart and Winston Inc, New York, 1970, p. 207

[xli] K. C. Wheare, Federal Government, New York: Oxford, 1964, p. 10.

[xlii] The United States Constitution states in Article IV, Section 2: “The Citizens of each state shall be entitled to all Privileges and Immunities of Citizens in the several States.”

[xliii] The Burmese Constitution states in Article 10: “There shall be but one citizenship throughout the Union; that is to say, there shall be no citizenship of the unit as distinct from the citizenship of the Union.”

[xliv] McCulloch v. Maryland 4 Wheaton 316 (1819).

[xlv] See Article I, Section 8

[xlvi] See Article 285

[xlvii] See  Article 289

[xlviii] See Article 275

[xlix] Ivo. D. Duchacek. Comparative   Federalism. Holt Rinehart and Winston Inc, New York, 1970, p. 207

[l]This provides that “by a simple majority and by ordinary legislative process, Parliament may form a new State or alter the boundaries, etc of existing States and thereby change the political map of India.

[li]a)    Article 54, article 55, article 73, article 162 or article 241, or

b)       Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or

c)       Any of the Lists in the Seventh Schedule, or

d)       The representation of States in Parliament, or

e)       The provisions of this article, the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States  by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.

[lii] Ivo. D. Duchacek. Comparative  Federalism. Holt Rinehart and Winston Inc, New York, 1970, p. 207

[liii] Article 5 of the 1947 Constitution proclaims that the Italian Republic, “which is one and indivisible, recognizes and promotes local autonomies.”

[liv] See  Article 74 of Constitution of Uganda

[lv] The following federal constitutions list their component units: Argentina, Australia, Austria, Brazil, Burma, Cameroun, Canada, West Germany, India, Libya, Mexico, Pakistan, Switzerland, USSR, and Venezuela.

[lvi]See Article 3

[lvii] Ivo. D. Duchacek. Comparative Federalism. Holt Rinehart and Winston Inc, New York, 1970, p. 207

[lviii]Amendment X [1791] of the US Constitution

[lix] The Federalist, no. 45

[lx]See Article 142 of the Islamic Republic of Pakistan provides that “Majlis-e-Shoora (Parliament) shall have exclusive power to make laws with respect to matters not enumerated in either of the Lists for such areas in the Federation as are not included in any Province”.

[lxi] K. C. Wheare, Federal Government, New York: Oxford, 1964, p. 75.

[lxii] Article 248 read with entry 97 of the Union list.

[lxiii] Ivo. D. Duchacek. Comparative  Federalism. Holt Rinehart and Winston Inc, New York, 1970, p. 207

[lxiv]See Article I Section 3

[lxv] Louise Overacker, The Australian Party System. New Haven, Conn: Yale University Press, 1952, p.328.  The author also notes that the Australian Labour Party antedates federalism; “it has become a national party even before Australia was a nation” (p.30).

[lxvi] See Article 80

[lxvii] See Article 222 which provides that “The President may, after consultation with the Chief Justice of India, transfer a judge from one High Court to any other High Court.”

[lxviii] Ivo. D. Duchacek. Comparative Federalism. Holt Rinehart and Winston Inc, New York, 1970, p. 207

[lxix] Herman Finer, Theory and Practice of Modern Government. New York: Holt, Rinehart and Winston, Inc., 1949,p. 820.

[lxx] See Article 64A

[lxxi] Article 102 of the Soviet Constitution: “in the USSR justice is administered by the Supreme Court of the USSR, the Supreme Courts of the Union Republics, the Courts of the Territories, Autonomous Regions and Areas, the special courts of the USSR established by the Supreme Soviet of the USSR, and the People’s Courts.” Article 104 charges the Soviet Supreme Court with the supervision of the judicial activities of all the judicial bodies of the USSR. The different territorial courts are elected for five years by the corresponding soviets except the district people’s courts, which are elected directly by the citizens of such districts or cities.

[lxxii]Article 124(2) of the constitution provides: “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years.

Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.” Now the practice has been changed by the Supreme Court decision in the Supreme Court Advocates on Record Association v. Union of  India, AIR 1994 SC 268.

[lxxiii]See Article 247 of the Constitution.

[lxxiv] See Article 73

[lxxv]  Ivo. D. Duchacek. Comparative  Federalism. Holt Rinehart and Winston Inc, New York, 1970, p. 207

[lxxvi] John H. Herz, Germany, in Carter and Herz, Major Foreign Powers, pp. 449-450.

[lxxvii] See Article 49, Section c

[lxxviii]The State shall not make any law, which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

[lxxix] Ivo. D. Duchacek. Comparative Federalism. Holt Rinehart and Winston Inc, New York, 1970, p. 208

[lxxx] See Article 352 to 360

[lxxxi] See Article 246 of the Constitution: 1. notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the “Union List”).

2.Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State  also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the “Concurrent List”).

3.Subject to clauses (1) and (2), the Legislature of any State  has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the “State List”).

4.Parliament has power to make laws with respect to any matter for any part of the territory of India not included  [in a State] notwithstanding that such matter is a matter enumerated in the State List.

[lxxxii]

[lxxxiii] See Article 256. The executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose.

[lxxxiv] In M. Nagaraj v. Union of India, (2006) Supp. 7 S.C.R. 336, 372,  the Supreme Court of India declared:

“The point which is important to be noted is that principles of federalism, secularism, reasonableness and socialism etc. are beyond the words of a particular provision. They are systematic and structural principles underlying and connecting various provisions of the Constitution. They give coherence to the Constitution. They make the Constitution an organic whole. They are part of constitutional law even if they are not expressly stated in the form of rules.”

[lxxxv] (1964) 1 S.C.R. 371

[lxxxvi] H. M. Seervai. Constitutional Law of India, Vol. 1,Fourth Edition. Universal Law Publishing Co. Pvt. P. 283

[lxxxvii](1978) 1 S.C.R. 1

[lxxxviii] Ibid. p.34

[lxxxix] Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461

[xc] Justice P. B. Mukerjee.1967. The Critical Problems of the Indian Constitution. University of Bombay, p.151.

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