Indian Federalism and Division of Powers

The constitution has divided the legislative authority via 7^th schedule {Union, State, and Concurrent Lists}. The residuary powers are vested in the Central government.

Analysis

The discussion on Indian Federalism and Division of powers must be analyzed in the light of following questions:

• What is the general principle underlying the division of powers in the country?
• What are the contentious issues related to division of power?
• What were some of the major views of Dr. Ambedkar regarding criticism of over-centralisation in the federal structure?

What is the general principle underlying the division of powers in the country?

The general principle underlying the division of powers is that all matters of national importance, e.g. defence, foreign affairs, railways, currency are allotted to the Central government while matters that are primarily of local or regional importance e.g. education, public health, police, local administration are assigned to regional governments. Some matters which require the involvement of both the centre and states like criminal law, forest, economic and social planning are assigned in the Concurrent List. However, in case of conflict over the legislation on any of the subjects mentioned in the Concurrent List, the Centre supersedes the States.

What are the contentious issues related to division of power?

Some of the major contentious issues include Article 200 (reservation of State Bills by the Governor for consideration of the President), emergency provisions under Article 352, 356 and 360 and compulsory compliance by the States with the executive power of the Centre under Article 256 and 257 etc. These provisions amount to centralisation of power which has been the major concern among the states; and they consider it threat to federalism.

What were some of the major views of Dr. Ambedkar regarding criticism of over-centralisation in the federal structure?

While moving resolution for draft constitution, Dr. Ambedkar said that the form of the Constitution was federal. “It establishes a dual polity with the Union at the Centre and the States at the periphery, each endowed with sovereign powers to be exercised in the field assigned to them respectively by the Constitution.”

Regarding concerns of over-centralization, Dr. Ambedkar said that:

• Union is not a League of States, united in a loose relationship, nor is the States the agencies of the Union, deriving powers from it. Both the Union and the States are created by the Constitution; both derive their respective authority from the Constitution. The one is not subordinate to the other in its own field; the authority of one is co­ordinate with that of the other.
• The allegation that there is too much centralization and states have been reduced to municipalities – is only exaggeration and founded on misgivings about the constitution.
• As to the relations between the Centre and States it is necessary to bear in mind the fundamental principle on which it rests. The basic principle of federalism is that the Legislative and Executive authority is partitioned between the Centre and the States not by any law to be made by the Centre but by the Constitution itself.
• This is what the Constitution does. The States are in no way dependent upon the Centre for their legislative or executive authority. The States and the Centre is co-equal in this matter.
• The alleged centralism may be because Constitution has assigned large field for operation of legislative and executive authority to centre than states; and residuary power of legislation to state. But these features don’t form essence of federalism.
• The chief mark of federalism lies in the partition of the legislative and executive authority between the Centre and Units by the Constitution. This is the principle embodied in our Constitution. There can be no mistake about it. It is therefore wrong to say that the States have been placed under the Centre.
• Centre cannot by its own will alter the boundary of this partition. Nor can the judiciary. For as has been well said: ‘Courts may modify, they cannot replace. They can revise earlier interpretations as new arguments, new points of view are presented, and they can shift the dividing line in marginal cases.
• But there are barriers they cannot pass, definite assignments of power they cannot re-allocate. They can give a broadening construction of existing powers, but they cannot assign to one authority the powers explicitly granted to another’.”
• Ambedkar was supported in these views by his colleagues on the Drafting Committee and by others whose opinions carried weight and authority in the deliberations of the Assembly. Yet, the controversy continued.
• A large number of members still thought that the Centre was invested with excessive power and, in the process, the federal principle which was to form the very foundation of the States system under the Constitution was almost destroyed.
• The controversy did not end even with the adoption of the Constitution. From the floor of the Assembly it migrated to a wider arena, among political scientists and constitutional lawyers both within and outside the country.