The minority view expressed by Justice Subba Rao has consistency with the federal scheme under the Indian Constitution.
The Indian Constitution accepts the federal concept and distributes the sovereign powers between the coordinate Constitutional entities, namely, the Union and the States. The crux of the majority judgment, in this case, is that even though both the Union and States in India derive powers from the same Constitution, the States would have no legal rights as against the overriding powers of the Union, because of a general theory of paramountcy or superiority of the Union.
He concluded that notwithstanding a distribution of powers between the Union and the States by the Constitution, the Union Legislature has an implied power to acquire property vested in the States while exercising the legislative powers granted to the Union by List 1 of the 7th Schedule :.
If exclusion of State property from the purview of Union Legislation is regarded as implicit in those entries in List I, it would be difficult if not impossible for the Union Government to carry out its obligations in respect of matters of national importance…. No positive interdict against its exercise is perceptible in the Constitution: and the implication of such an interdict assumes a degree of sovereignty in the States of such plenitude as transcends the express legislative power of the Union.
In the Rajasthan case of the same year , the learned judges embarked upon a discussion of the abstract principles of federalism in the face of the express provisions of the Constitution.
The evolving nature of federalism: The tribal-state relationship
It was stated that even if it is possible to see a federal structure behind the establishment of separate executive, legislative and judicial organs in the States, it is apparent from the provision illustrated in Article that the Union Government is entitled to enforce its own views regarding the administration and granting of power in the States. The extent of federalism of the Indian Union is largely watered down by the needs of progress, development and making the nation integrated, politically and economically co-ordinated, and socially and spiritually uplifted.
The Court then proceeded to list out some of the Constitutional provisions which establish the supremacy of the Parliament over the State legislatures. BEG, C. These do not, therefore, affect the normal situation. The actual decision in the Rajasthan case rests on the proposition that Article is a non-justiciable provision, relating to a political question.
Even in the American Constitution, there are provisions which are non-justiciable.
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Even in the Rajasthan case, it should be observed, at various places, the Judges observe that a Proclamation under Article 1 may now be questioned in the Courts on the grounds of mala fide. Hence the non-justiciability of Art. A close examination of his observations would reveal where his fallacy lies. The learned Chief Justice relies on the degree of control which the Constitution has conferred on the Central Government, e.
While political scientists are concerned with the degree of Central control or supervision and its working in practice, what matters to the Bench and the Bar is justifiability of the division of powers made by a Constitution.
A judge has no concern for such speculation. His only business is to interpret the provisions of the Constitution.. Indeed, this function is acknowledged by the learned Chief Justice himself with the observation:.
There is no overriding power with the Union Government. It cannot deal with the State Government as its delegate, for the source of power for the union as well as the State which, is the Constitution and the Union Government cannot claim any powers over the state which are not found in the Constitution…. We can henceforth see that the Indian judiciary had interpreted the Constitution to declare India a unitary nation.
Skyscrapers in Manila, Philippines. On paper, federalism seems well suited for the Philippines.
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In reality, however, it could become a recipe for disaster in a country that is already divided by language, religion and economic inequality. First of all, studies show that only a few regions are capable of raising enough taxes on their own. The vast majority of provinces, which will be submerged into new federal states, lack the basic administrative capacity for generating revenue. Not to mention duplication in taxes and further stress on the nascent bureaucracy of peripheral regions under a federal arrangement.
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Under a federal system, the richer states of the north will have even more resources to enhance their competitiveness, thus deepening the developmental gap with other southern regions. Even in prosperous nations like the U. In developing countries like India, Iraq and Nigeria, federalism has either failed to close developmental gaps and ethno-communal tensions among various states or, more worryingly, in some cases reinforced and reified them over the decades. In places such as Yugoslavia , a federal setup eventually collapsed into a genocidal civil war.
Indian federalism at stake
But this is only halfway down the road. As a reflection of the norms and attitudes of politicians as well as societies, institutions are also subject to change. Moreover institutions may be revised due to transforming environments and political structures. The reason for this phenomenon is that the practice and shape of institutions as good as never will match the idea giving birth to it.
To give an example relevant for this analysis: federalism as an institution is based on the principle of secondary liability, which, as a norm of federalism, constitutes an institution too. While the general idea of secondary liability is to give regions and states the authority over all aspects they are capable to manage themselves, the extent of autonomy granted to federal states varies in respect to values and structural constraints perceived by political actors.
A change in the constraining structure, e. Thus form also follows function. The latent shortfall of legislative adaptation behind structural change can be seen as a function of time and as the engine of institutional change. In this chapter it will be attempted to design an equation of the above-mentioned relations. There are some basic assumptions to be closer explained.
First, it is believed that changes in external structure have negative impacts on the functionality of institutions. This seems restrictive, but as institutions are tailored to fit a familiar environment based on experience, it should be legitimate to assume that also structural changes with desirable social outcomes provoke institutional revision.
Second, the model conceives institutional functionality as generally framed by legislative and political activity aiming to reduce the costs of structural constraints for domestic polity and hence for institutional politics. In its basic form institutional functionality will be defined as the sum of legislative and political efficiency. Legislative efficiency means the degree to which legislation is able to set proper conditions for political action in the background of external structural constraints.
Political efficiency means forms of political transactions, evolving to make the best possible use of these legislative conditions or accordingly to fill in the blanks where legislation fails to counter structural constraints. Accordingly, also political efficiency can be set in relation to structural constraints.