Ask a Teacher

Search



'Independence of judiciary is the key to the success of federation'. Discuss.
  

Federalism as a form of government was, for the first time, put into practice in the United States way back in 1789. It was a result of the prevailing situation that time in the United States of America. Subsequently, it was followed in other countries of the world as a political choice.

(1) The most important feature of federalism is the division of powers between the central and state governments by the scheme of the Constitution itself. Both governments are independent and autonomous in their sphere of powers.

(2) The division, of powers between the two postulates a written constitution. In federalism the Constitution is also rigid as the federal provisions of the Constitution cannot be changed without the consent of both the centre and the states.

(3) Federalism also requires the provision for an independent federal judiciary as the division of powers involves the possibility of disputes arising between the centre and the states or between the units of federation itself.


Creation of Indian Federation

Basically, there are two ways of creating a federal set-up. The first is on the basis of a federal alliance made by some independent federating units or sovereign states, which create the Central or Federal government and transfer certain powers of national importance to that government. The remaining powers are retained by the federating units. This division of powers based on the federal alliance becomes a part of the Constitution or the fundamental law of land. The federal Constitution cannot be altered without the consent of both the governments. The federating units have their separate constitutions to manage their internal affairs. Theoretically the federating units have the right to secede from the federation, but, in practice, it may not be possible to do so.
The second way to create a federation is by establishing some provincial governments by dividing a single sovereign country and conferring certain powers to those provincial governments through the provisions of the Constitution. The remaining powers are retained by the Central or Union government.

The Indian federation is created on this manner as the provincial governments or federating units in India did not enjoy a sovereign or independent status before becoming a part of the federation. Even the Indian Constitution makers deliberately used the word 'Union' in place of 'Federation'. Article-1 of the Constitution declares India to be a 'Union of States'. Dr. B. R. Ambedkar, the Chairman of Drafting Committee, explained in the Constituent Assembly (hat the use of the term 'Union' indicates two things. First, the Indian federation is not the result of an agreement by the units.
Second, the component units have no freedom to secede from the federation. However merely the use of the term Union does not indicate any particular type of federation. In order to understand the nature of Indian federation, the federal provisions of the constitution have to be elaborated and analyzed.
The Federal Features of Indian constitution-The Constitution of India displays the following federal features:


• (a) The Constitution of India makes the provision for the organization of two types of governments-the Union Government and the State Governments. The governments at; both levels are organized on the basis of Parliamentary System as per the provisions of the Constitution.

• (b) The Seventh Schedule of the Constitution makes provision for the division of powers between the Union and the States. It contains three lists :
1. The Union List which has 97 subjects of national importance and the Union Parliament has the power to enact laws with respect to these subjects; 2. The State List, which contains 66 subjects of local importance and the State Legislatures have the power to enact laws with respect to these subjects; 3. The Concurrent List, which contains 47 subjects and both the Parliament and State Legislatures can legislate on them. The idea of Concurrent List is inspired by the Constitution of Australia.

• (2) As per the requirement of federal system, the Indian Constitution is a written document. It is a rigid Constitution as far as the amendment of federal provisions is concerned. Thus, the following provisions, affecting the interests of states, can be amended only if not less than half of the state legislatures have approved the same: X. Article 54 and 55 related to the manner of election of the President; 2. Articles 73 and 162 dealing with the extent of the executive power of the Union and States; 3. Article 124, Chapter IV of Part V and Chapter V to Part VI related to the Supreme Court and High Courts; 4. Chapter I of Part XI, dealing with the distribution of legislative powers between the Union and States; 5. Any of the Lists in the 7th Schedule; 6. Articles 80-81 and 4th Schedule related to the representation of States in Parliament; and 7. Article 368, related to the Amendment of the Constitution. In order to amend the above provisions the Constitution Amendment Bill has to be approved by not less than half of the state legislatures before it is presented to the President for his consent.

• (a) The Indian Constitution makes provision for an independent and Federal judiciary. The Supreme Court of India acts as a federal court. It has the power to decide the disputes arising either between the Union and the States or between the two or more States under its Original Jurisdiction as mentioned in Article 131 of the Constitution. The Constitution makes various provisions to ensure the independence of judiciary from the Executive and the Legislature both.


Unitary Features of Indian Federation-


The unitary features of Indian federation are so striking that a noted scholar Ivor Jennings, has termed it as a 'federation with strong centralizing tendencies.' The unitary features of Indian federation are given:

• The Indian federation is an example of 'Indestructible Union with Destructible states.' It means that the Union shall remain intact but the physical existence of states or units can be modified.  On the other hand, the American federalism is characterized as 'Indestructible Union of Indestructible States'.

• Unlike the American federation, the Indian Constitution provides for a single citizenship. It means that, in India, every person is a citizen of India and they are not entitled for citizenship of any state.
• The Governor of a state, who is the executive head of the state, is appointed by the President and holds office during the pleasure of the President.
• The provision for single citizenship in India is also considered is the unitary feature of Indian Federalism. In India, every person is a citizen of India.

• Unlike the US Federation, states in India do not have their separate Constitutions. India has a single Constitution, which makes provision with respect to both the Union and the States. Also, with the exception of some federal provisions, the states in India do not have any power with respect to the amendment of the Constitution, which is the sole prerogative of the Union Parliament.

• Generally, in federalism, the states or units have equal representation in the second House of Parliament. But, in India, the states do not have equal representation in the Council of States. The representation of states depends on their population; the number of seats allocated to different states is mentioned in the Fourth Schedule of the Constitution. The state of Uttar Pradesh has 31 seats, whereas many states like Nagaland, Manipur, Tripura etc. have only one seat in the Council of States


comments powered by Disqus