Indian Federalism: A Study with Special Reference to S. R. Bommai v. Union of India

INTRODUCTION

In unitary state there is only one government that is central government while in federal state there are two or more governments for example central government, state government and local government.

Separation of power between central government and state governments but the method of distribution may not be same in all the federal constitutions. Each layer of government is sovereign in their respective sphere.

It means that constitution is binding on both centre and states government and neither the centre nor the states in position to change the provision of constitution by themselves. Constitution provision has to be change by the joint act of centre and states. Every action, policy and power executive, legislative and judicial whether it belongs to centre or state is control by the constitution and the supreme constitution is essential for the federal government.

In order of smooth functioning of federation the constitution should provide a clear demarcation of power between the centre and states which can only be provide by the written constitution. It is essential for federal government that all the provision of federal structure should be in writing for efficient working.

It is not possible to maintain to these feature of federalism if the constitution is not rigid. In a rigid Constitution the procedure of amendment is very difficult but it does not mean that there is no scope for amendment it can be amend according to the circumstances.

federal system of the country and to ensure thus it is necessary to maintain the authority of courts because they must have the final power to interpret the provision of constitution

All constitution is the heirs of past as well as the testators of the future. The government of India act 1935 contemplated in India which never materialized. India was a unitary state till the new constitution was made. The Indian constitution makers were fully conscious about the centrifugal tendencies which were at work India Pakistan partition. So the constitution maker found the federalism as a solution of many problem prevalent at that time in attempt to make constitution There are some other factor like geographical condition , education, language , diversity in India due to this we adopt federal type of government . Constitution maker realized that federal system ensure the efficient governance of country but reconcile the national unity with regional autonomy. So Indian federalism was designed according to the federalism in USA, Canada and Australia. There is difference of opinion among scholars regarding the nature of Indian constitution whether it is federal or not. The basic principle of federations is that the legislative and executive authority is partitioned between centre and states not by any law, but by the constitution itself. The states are no way depending upon the centre for their legislative or executive authority. The states and centre is co-equal in this matter. So we can say that Indian constitution is pure federal. The word ‗Federation‘ has not been used in the constitution under Article 1(1) ―India that is Bharat shall be union of state‖. It is the fundamental feature of federal set up but at the same time our constitution maker avoided the ‗tight mould of federalism‘ in which American constitution was formed earlier. Dr B.R. Ambedkar wrote that ―the committee has used the term ―union‖ instead of Federation is deliberate. The drafting committee wants to make it clear that though India was to be a federation was not the result of agreement by the states to join federation that‘s why federation is not the result of an agreement and no states has the right to secede from it. The federation is a union because it is indestructible in nature.‖2 In Indian federalism with central and state government a third type government that is panchayats & Municipalities which were created through the 73rd and 74th constitutional amendments act. So that‘s why in India there is three level of government this is the new form of government, In Ram Jawaya kapoor v. Union of India1, in this case the issue was whether the constitution of India is a federal constitution? Chief Justice B.K. Mukherjee observed that Indian constitution has not recognized the federal principle in its absolute rigidity, but the functions of different branches of government sufficiently allocated. Thus it can very well be said that our constitution does not contemplate assumption by one organ .our constitution is federal in structure.

Indian constitution provide multiple tier of government that is central government , state government and after 73&74th amendment act in India the third tier of government came into existence that is local self-government. Each layer of government enjoying the powers clearly demarcated by the constitution.

Distribution of power mean division of power and existence of dual policy between central government and the government of unites of the federation. These two governments are not subordinates to each other but they are coordinating bodies. This distribution of power is existing in Indian constitution. The seventh scheduled of Indian constitution make provision for the division of power. It contains 3 lists: i. Union list contain 97 subjects: union legislature alone has power to make law with respect to these matters. ii. State list 66 subjects of local importance. State government has power to make law with respect to these subjects. iii. Concurrent list 47 subjects both parliament and state legislature can make law on them.

It means that the constitution is binding on centre and state both. Indian constitution is endowed with supremacy. The constitution is grundnorm of all the laws that is central and state. The states and centre has to work within their sphere which prescribed by the constitution. If the pass any law which not according to the provision of constitution supreme and the supreme constitution is essential for the federal form of government. Every action and policy of centre or state is control by the constitution.

In order to smooth functioning of federation the constitution should provide clear demarcation of power between centre and state which can only be provided by the written constitution. It is essential for the federal government is to work very well. The Indian constitution contains more than 400 article and 12 schedules.

Rigidity does not mean that entire constitution provision shall be rigid, this condition should be satisfy if those provision that take part in the division of power alone are rigid and the rest of the constitution provision may or may not be rigid. Indian constitution is a rigid constitution as far as the federal provision is concerned. The following provision can be amended if it is ratified by the two - third majority of the both houses of parliament and approved by the half of the state legislature: i Article- 54, 55 : Election of president. ii. Article 73 & 162 Executive power of the union and states. iii. Article 124, chapter – IV of part V and Chapter V of Part VI related to the Supreme Court and High Courts. iv. Article 80-81and 4th Schedule related to the representation of state in the parliament. v. Article 368 Amendment of the Constitution. vi. Any list in the 7th Schedule. vii. Chapter I of Part XI, Distribution of legislative powers between the union and states.

i. There shall be exist of an authority independent from the centre and state government preferably a court of law conferred with power to finally interpreter of the constitution, whose interpretation shall be binding on both centre and states. ii. The second issue is that there shall be a court of authority with the power to resolve the dispute that may arise between the party concern. Under the Indian constitution this power has been extended to the Supreme court of India, which is final interpretator and sole arbitrator of the dispute between the centre and state government. 7. Supreme Court view on Indian Federalism: S. R. Bommai v. Union of India:

In 1989, Janta Dal government headed by S.R. Bommai was in power in state of Karnataka. On 15 April 1989, the Ministry was expended which cause dissatisfaction to some of aspirants. After this several member of Janta Dal party defected, giving rise to the question of majority support of the government. The state Chief Minister requested the Governor to call a session of legislative assembly to test the majority on the floor of the house but the Governor not agreed with this suggestion of the chief minister. Neither he tried to find out the possibilities of alternate government. He wrote to the president to take action under Article 356 of Indian Constitution as horse trading was going on and the situation was getting vitiated. After this President issued a proclamation on April 29, 1989. The Constitutional validity of this proclamation was challenged by the S.R. Bommai in high court, where the Court observed that the word ‗satisfaction‘ of the president was not outside the judicial review‘ if this satisfaction under article 356(1) is based upon mollified fides, irrelevant grounds. But the high court did not found the ‗satisfaction‘ suffering on any of the above ground and upheld the proclamation. S.R. Bommai appealed to the Supreme Court against the ruling of High Court.

The scope of judicial review of President Rule in state under Article 356 and the character of Indian polity.

i. Federalism is like basic structure of the Constitution. ii. In order to maintain unity and integrity of the nation our constitution maker were in favors of the strong centre while distributing the power between the centre and states. This becomes clear from that overview of the constitution. But it does not mean that states are mere watchdog of centre. Within the sphere allocated to them states are supreme. iii. People of India are only legal sovereign while political sovereignty is distributed in the centre and states. iv. ‗Federation‘ and ‗federal form of government‘ has no fix meaning. It indicates a division of powers between a federal government and the unites. v. Presidential proclamation for dissolving a state assembly is subject to judicial review but the word ‗satisfaction‘ cannot be question in court of law. vi. No wholesale dismissal of opposition rule state government when new political party assume in the centre. vii. If the President rule is imposed only on political reason the court can even restore the state assembly. viii. Imposition of president rule and dissolution of state assembly cannot be done together. State assembly can be dissolved only after parliament approve President rule. ix. If the state governments work against secularism the president rule can be imposed. x. Supreme Court and High Court can compel the Union government to disclose the material on which basis the President rule is imposed. xi. The power of President under Article 356 is Constitutional power & it is not absolute power. The existence of material facts or reason is pre condition to form the satisfaction to impose the President rule.

1. WHEARE, Federal Government, (1963), p.35 2. Basu DD, Introduction to the Constitution of India 20th edition, P 51

3. AIR 1955 SC 549 4. AIR 1963 SC 1241 5. AIR1965 SC 745 6. AIR 1977 SC 1361 7. AIR 1994 SC 1918

Assistant Professor, South Point College of Law, Rattangarh, Sonipat soniadahiya26@gmail.com