Conversations about the Constitution, particularly those that tread beyond the Fundamental Rights chapter, are considered to be the preserve of lawyers and scholars. In my perception, everyone who gives to themselves this Constitution, as we do, is impacted by every single choice that the Constitution makes. As a citizen, as a democratic participant.
One such constitutional choice our framers made was of a political division of powers — federalism. The Cambridge Dictionary defines federalism as a political system in which separate states are organised under a central government. It achieved what scholars called “some degree of political integration based on a combination of self-rule and shared rule”.
India’s adoption of federalism was informed by the historical context of Partition, and perceived secessionist threats faced by certain other parts of the country at the dawn of Independence. Resisting the suggestion to insert the word “federal”, B R Ambedkar stated that “what is important is that the use of the word ‘union’ is deliberate… because it is indestructible”. However, it was clear that the Centre and the states were independent federating units in their designated legislative spheres and that the states were not subordinate to the Centre.
We often assume that federalism is a revered constitutional value that must be protected at all costs. It might surprise many if I told them that the principle of federalism was used as one of the core arguments in support of slavery in the US. As opposed to this, the Indian Constitution dealt with discrimination in a rather creative manner. The legislative competence of the Centre and states is prescribed by way of demarcating subjects into three lists in the Seventh Schedule. Essentially, the lists do not reserve anti-discrimination and fundamental rights regulations completely for either the states or the Centre.
Of the many great things that the judgment of the 13-judge bench in Kesavananda Bharti has given us, the most prominent is that there are certain values that the Constitution espouses and that these values trump majoritarian will. It is such a prominent doctrine that any citizen today would proclaim that federalism is a basic feature of the Constitution.
We often hear legal scholars argue that the US Constitution is more federal than unitary, while the Indian Constitution is more unitary than federal. Or, that the Indian Constitution has a centralising tendency. What does this mean? The “centralising tendency” of the Indian Constitution, it is often argued, stems from two of its features — the emergency powers of the Union, and the residuary legislative powers vested in the Union Parliament. This, I term as the vice of over-simplification. There is no denying that our Constitution does contain centralising features. However, the Constitution also provides a balance. There is, for instance, a rather stringent procedure to amend constitutional provisions which impact the powers of the state. Similarly, the Constitution confers the power to assent to bills passed by state legislatures to the Governor. However, the provisions of the Constitution also circumscribe the role of the Governor to ensure that the states are not rendered “subordinate” to the Union.
Federalism is not a monolithic concept. In 1977, the Supreme Court (SC) for the first time described the model of federalism in India as predominantly “cooperative”. Cooperative federalism is a system of governance where the state and Central units work together to “iron out” the differences that arise in governance to achieve the common goal of development. In a judgment I authored in 2022, I argued that it is not necessary that “cooperation” between the states and the Union is the only way to uphold federal principles; it is necessary to view Indian federalism as a dialogue. It could either be easy-going or it could cause friction between the units. Both are equally important for federalism to flourish.
Another crucial (and unique) point to note about the form of federalism in India is what we have termed as “asymmetric federalism”. This expression must be understood at two levels — the independence of the states and the Union in their respective sphere, and the unique and asymmetric relationship that each state shares with the Union. In a nation as diverse as ours, it is impossible to put all the states in a box and treat them alike vis-a-vis the Union. Constitutional courts shape the federal system through interpretations of the distribution of powers and other manifestations of federalism.
To my mind, the Indian constitutional jurisprudence on federalism must be divided into two eras: The centripetal era and the centrifugal era. I term the era before the judgment of the SC in S R Bommai v Union of India as the centripetal era. Here, the Court adopted interpretations with a centripetal impact, that is, it had a centralising tendency which led to an accumulation of power with the Centre and away from the federating states. I term the era after the judgment in Bommai as the centrifugal era. In this period, the Court has opted for an interpretation that has a centrifugal impact, that is, an interpretation that enhances the autonomy of federating states. In Bommai, states, it was held, were not mere appendages of the Centre and the Court could not take a route that whittled down the powers of the states.
Let me explain the contributions of the Court in ensuring democratic governance through the principle of federalism with the help of a recent example. Article 200 of the
Constitution states that the Governor has three options when a Bill passed by the state legislature is presented for assent. The first is that she can assent to the Bill. The second is that she can withhold assent. The third is that she may reserve the Bill for the consideration of the President. The proviso to the provision states that the Governor may send the Bill to the House with a message requesting the House to reconsider the Bill. The question before a Bench headed by me was on the scope of the second option. That is, whether the Governor can indefinitely withhold assent, in which case the Bill will die a “natural death”. We held that the second option cannot be read to confer a veto to the Governor, for that would erode the principle of federalism and representative governance. That a Governor can withhold the assent to the Bill only to send it for reconsideration.
The bottom line of the discussion is this: Our Constitution is a federal one. Scholar Marc Galanter has argued that the Indian Constitution was a “radical readjustment of the relations between groups: Old rights are abolished, new rights are established”. What are these “new rights” today and how does federalism shape these are the questions we must ask ourselves. The Constitution was meant to be a transformative document. Climate change, artificial intelligence, data privacy and cyber crimes transcend territorial boundaries, which formed the basis of federal units. These new challenges ill-fit the conventional moulds of Union and States subjects.
If federalism in the years gone by was about adjusting to political realities in terms of legislative powers, in the years to come, federalism should be evaluated based on its ability to foster democracy and constitutional ideals of equality, liberty, dignity and fraternity. States and the Union are both creatures of the Constitution. They must act in synergy, cooperation, and constitutional deference to their legislative boundaries in finding meaningful solutions to modern-day problems. Our ability to address these challenges is the litmus test for our imperfect federalism and the framers’ faith in it. I hope that we eventually find these solutions in cooperation and mutual allegiance to the common constitutional goals of the federating units.
The writer is the Chief Justice of India.
Edited excerpts of the speech delivered at the inaugural Loksatta lecture in Mumbai on October 26
