Republic of India

RAJEEV DHAVAN and REKHA SAXENA

INTRODUCTION

Framed by the Constitution of 1950, Indian federalism serves the second largest population in the world,
comprising an unparalleled multiplicity of cultures, religions, languages, and ethnicities. The original
federal design of 1950 drew its structure from the British Government of India Act, 1935, and its
inspiration from the idea of centralized planned development.1 But there was a vast difference between
administering a colony – albeit the “jewel in the crown”2 – in a vast sprawling empire and creating a
federation to bring diverse peoples together with a vision of social justice for all. Anxious that this new
“idea of India”3 should not fall apart, the 1950 Constitution gave extensive powers to the Union
legislature and executive to keep the nation together, underpinning a degree of dominance for the Union
government, centred in New Delhi, which went well beyond the imperatives of economic planning.
The division of powers between the Union and states was weighted in favour of the Union. The
Union legislature had the power to completely rewrite the physical boundaries of Indian federalism to
create new states, including carving them out of existing ones. In turn, if the geography of Indian
federalism was not sacrosanct, neither was its democracy. As part of its vast power and influence, the
Union executive could impose emergency presidential rule on all or any of the states and suspend their
democratic functioning. The early story of Indian federalism thus was one of transition from a focus on
revenue and on law and order that had characterized the British governance of India to a constitution
designed to enable planned development. The years that followed implementation of the Constitution,
however, saw a transition of another kind. India’s diversity and politics caught up with the original over-
centralized federal structure to create what might be called a “negotiatory federalism” in which there is an
increasing – even if inchoate – respect for the states.4
When the British left India in 1947, the subcontinent was not only partitioned between the newly
independent nations of India and Pakistan but also contained some 572 princely states that owed their
allegiance to the British Crown and were free to join India or Pakistan or to remain independent. Had this
recipe for disaster been followed, India would have been fragmented. In response, the Indian Constitution
created a flexible federation able to absorb both the former British territories as well as accessions by the
princely states. The original Constitution differentiated between nine “Part A” states (formerly ruled by
the British), nine “Part B” states (hitherto ruled by Indian princes), and ten “Part C” states (lesser
territories ruled by the British). This was a makeshift arrangement to accommodate the influx of
territories that fell to India’s share after partition. In 1956, however, India was reorganized into 15 states
and six Union territories, some of which, such as Goa, were later accepted as states. A state is a full-
fledged constituent unit of the federation, with independent powers drawn from the Constitution. Such
status was denied to territories for strategic and historical reasons. A Union territory is run directly by the
Union, and the degree of devolution varies between territories.
The geography of Indian federalism has been constantly redrawn. Linguistic states were created
in Andhra, Madras, and Kerala in 1956; Maharashtra and Gujarat in 1960; and Punjab and Haryana in
1967. Additional state entities were established as Sikkim in 1975, the North Eastern states in 1977, Goa
in 1987, and Jharkhand and Chattisgarh in 2000.5 By 2004 India had 28 states and seven Union territories.
Demographically, the largest state is Uttar Pradesh, with 166 million people; the smallest state is Sikkim,
with a mere 540,493. Geographically, the desert state of Rajasthan encompasses 342,239 square
kilometres, while Goa, with 3,702 square kilometres, is the smallest state. Some of the Union territories,
such as the Andaman and Nicobar Islands, are even smaller. There are huge social and economic
disparities within and across states, with more and more communities staking a claim for some measure
of autonomous governance along linguistic, ethnic, tribal, caste, and community lines in ways that will
continue to alter Indian federalism.
The people and the challenge

India’s population has grown exponentially from 238.4 million in 1901 to 361.1 million in 1951 and to
1.03 billion in 2001.6 It is characterized by extensive religious and linguistic diversity. In 20017 some 81.4
percent of the population was Hindu, 12.4 percent was Muslim (making India the world’s second largest
Muslim country), 2.3 percent was Christian (larger than the population of many Christian states), 1.9
percent was Sikh, and the remainder were variously Buddhist, Jains, and many others. Hindus themselves
are divided into various sects. When this demographic distribution is superimposed on the states, many
areas of various states acquire Sikh, Muslim, or Christian majorities. India also has 22 constitutionally
recognized languages, often with different scripts, in addition to Hindi, which is spoken by 40.2 percent
of the population, and English, which is becoming increasingly acceptable. Other languages include
Bengali (8.3 percent), Telugu (7.9 percent), Marathi (7.4 percent), Tamil (6.3 percent), Urdu (5.2
percent), Gujarati (4.8 percent), Kannada (3.9 percent), Malayalam (3.6 percent), Oriya (3.3 percent),
Punjabi (2.8 percent), and Assamese (1.6 percent), with smaller percentages of Sindhi, Manipuri, and
Kashmiri. Amidst these are dialects that have outgrown their parent language. If some of the percentages
seem small, the actual numbers of people these percentages represent are large. This, then, is the
challenge for Indian federalism – to accommodate and give expression to India’s unparalleled diversity.

The response of Indian federalism

Indian federalism has devised several answers to the demands confronting it. In the first place, a strong
centralized federation gives the Union an armoury of wide, overriding legislative and executive powers.
Second, the federation provides for geographic flexibility so that additional states can be created. Within
the tribal areas of India, autonomous units of government with their own distinct systems of governance
can also be devised. Third, from 1956, India has consciously redefined its federalism along multicultural
lines so that each state is projected as a distinct cultural entity with its own linguistic or social and
historical identity. Fourth, under the Constitution, while the states may be entitled to equal respect as the
constituent units of the federation, they are treated differently in fact, in accordance with a form of
weighted and differentiated equality. More particularly, states are not represented equally even in the
federal chamber of the Union legislature but, broadly, by reference to population size. The Constitution
makes specific provision for Kashmir and other tribal states, however, and where there are designated
tribal areas within states, all or any laws of the Union or the state in question may be rendered
inapplicable on the orders of the state governor.8 Fifth, Indian federalism is negotiatory in nature, so that
in vital areas of finance, taxation, and revenue distribution, there is room for adjustment and compromise.
This has become all the more crucial with the emergence of strong regional parties in various states and
the advent of fragile coalitions in the Union government. Finally, since 1992, constitutional amendments
have achieved a degree of democratic decentralization, which has compulsorily superimposed various
tiers of local government on the federal structure.
Although reflecting on contemporary history is always more challenging than theorizing about
the more distant past, it can be said that these characteristics of India’s federal governance have taken
India from the “benign centralism” of the Nehru era (1950-64), through the troubled period of “excessive
centralism” of Indira Gandhi and her successors (1965-89), to the new negotiatory federalism of the
coalition and minority governments’ era (1989-present).

UNION LEGISLATURE

General

Pivotal to Indian governance is the Union legislature comprising the House of the People (Lok Sabha) and
the Council of States (Rajya Sabha). The Union legislature provides the forum for accountability and
responsibility on the part of the Union executive. Ministers report to both houses of Parliament in
response to questions and debates. However, the prime minister and cabinet are collectively responsible
only to the Lok Sabha. This means that a Union government cannot be formed or continue unless it enjoys
majority support in the Lok Sabha. If this support is lost, the government must be replaced by another
government or seek re-election at the polls.
The second function of the Union legislature is to enact laws on the subjects assigned to it. The
Union’s exclusive areas of legislation consist of 97 items, including a sprawling residuary power
(Schedule VII, List I) in contrast to 66 items on the states’ list of exclusive subject areas (Schedule VII,
List II). Both the Union and the states can legislate on a concurrent list of a further 47 items, but in the
event of conflict, Union legislation prevails (Schedule VII, List III). Within the exclusive state list, there
are many areas - such as policing, mining, industry, and sales and other taxes - that are specifically
subject to overriding Union legislation. This is a peculiar feature of India’s Constitution, which allows the
Union to legislate on areas otherwise exclusively assigned to the states. If the governor of a state feels that
any state legislation needs federal approval, it may reserve that legislation for approval by the Union
executive, whose veto is final. But the Union’s legislative powers go farther. If a treaty has been
negotiated, the Union legislature may override all the legislative lists to pass implementing legislation.
The Rajya Sabha can pass a resolution by a two-thirds majority to empower the Union Parliament to
enact legislation on all matters in the national interest specified in the resolution, as long as any such
legislation is passed within a period of one year from the date of the resolution. Similarly, during an
emergency, Parliament may pass legislation on subjects on the state list. In addition, two or more states
may request the Union to enact legislation within their exclusive areas of legislative competence, which
may be adopted by other states. This makes the Union’s already extensive powers even more vast.9
The Union executive is responsible to the Union legislature when an “all-India,” “state specific,”
or “other” emergency is declared. Such emergencies must be ratified by both houses of Parliament within
one month in order to be continued for periods of six months at a time within the prescribed maximum
period of one year.10 The Union legislature also has unusual powers to alter the territorial boundaries of
the states; in this way, the geography of the Indian federation can be redrawn with minimal and formal
consultation with11 the legislatures of the states affected, but not with their people. Finally, the Union
Parliament plays a crucial role in amending the Constitution. Some changes can be made by a simple or
absolute majority of each house of the Union legislature, without reference to the states. Some changes
can be made only by a two-thirds majority of each house, with ratification by one-half of the legislatures
of the states. So far there have been 91 amendments to the Constitution.
The effect of these accumulated powers and functions is that the Union legislature has not only
passed legislation in all areas of the social and political economy, overriding the discretion of the states,
but has also declared all kinds of emergencies, changed the geography of Indian federalism, and
substantially altered the Constitution itself. In the face of this last development, the Supreme Court held
that not even the plenary power to amend the Constitution can alter the basic structure of the Constitution,
which, perforce, includes the federal structure.12 However, this has not prevented the Union executive and
legislature from dominating federal governance.

Election to the Union legislature

India is the world’s largest voting democracy. Its people are represented nationally in a bicameral
legislature consisting of the Lok Sabha, which is elected directly by universal franchise from single-
member constituencies on a first-past-the-post voting system, and the Rajya Sabha, which is indirectly
elected by the legislatures of the states in proportion to the population size of the respective states.13
Elections to the legislatures of the Union and the states and for the offices of the president and vice-
president are conducted by an election commission, which draws its independence and authority from the
Constitution but is nominated by the Union executive. The Election Commission has overseen some of
the most challenging elections in the world, and its functioning has aroused controversy at times,
especially in state elections where the commission has tried its best to keep elections within a secular rule
of law. Elections to the 543 constituencies of the Lok Sabha are roughly determined on the basis of the
population of an area within a state by a delimitation commission created by Parliament.14 The process of
delimitation has important federal implications in that the more populous states with fast-growing
populations have a greater share of the seats in the Lok Sabha and a greater say in the election of the
Rajya Sabha and of the president and vice-president by the legislators of the Union and the states.
This poses a dilemma for Indian federalism. If population becomes the sole criterion for
determining representation, the huge states and territories of north and west India will increase their
domination of representation in Parliament, with implications for the election of the president and vice-
president. Thus the nine northern units hold 245 Lok Sabha seats compared with 132 for the four southern
units, 88 for the nine east and northeast units, and 78 for the five western units. If the census of 2001 were
carried through to the distribution of constituencies, the share of the larger states would increase. The
populous North would dominate the less populous South and the even less populous North East. For the
present, Parliament has intervened through the 84th Amendment to the Constitution to freeze all
constituencies until the year 2026. But this poses a critical problem of another kind for federalism: should
Union institutions be designed not only to represent the people but also to provide equal representation
for all states – large or small? Population-based democracy and state-based federalism need to yield to
each other to find a satisfactory answer.
Independent India had a choice to continue the colonial system of “communal” electorates
whereby representation in the Lok Sabha would have been along religious and ethnic lines. After much
deliberation, the Constituent Assembly, which drafted India’s Constitution, decided that communal
electorates along purely religious lines constituted a typically British divide-and-rule approach to
government, which had been responsible for the dismemberment of the subcontinent into India and
Pakistan. Special provision was made in the Constitution, however, for the constituencies of scheduled
castes (the former untouchables) and scheduled tribes (the indigenous peoples of India, or tribals), which
has been renewed by Parliament every ten years.
Despite the abolition of communal electorates, religion has played an increasingly prominent
electoral role since around 1980. New fundamentalist parties have sought a “Hindu” electoral base to
successfully form coalition governments in the Union and in some states, including Maharashtra, Uttar
Pradesh, Madhya Pradesh, and Rajasthan. The otherwise devout southern states with Hindu populations
have not been affected significantly. This development has taken place despite a strong electoral law that
prohibits appeals to religion during elections on pain of disqualification of the candidate as well as
conviction for a penal offence.15 The rise of these parties on the platform of Hindutva (neo-Hinduism) has
exploited Hindu sensitivities about India’s Muslim and Christian past, even to the point of violence and
the destruction of mosques and churches. These trends have greatly affected Indian federalism to
foreshadow a “Hindu-Secular” divide that is more marked in some states than in others. This goes against
the grain of a secular Constitution guaranteeing equal respect and concern for all faiths.16

Lok Sabha (House of the People)

The states are unequally represented in the Lok Sabha. The largest state, Uttar Pradesh, returns 80
members of Parliament (MPs) to the Lok Sabha, followed by 48 MPs for Maharashtra, 42 each from
Andhra Pradesh and West Bengal, 40 from Bihar, and 39 from Tamil Nadu. At the other end of the
spectrum Goa has two MPs, and Sikkim, Mizoram, and Nagaland have one each. Among the Union
territories, Delhi has seven Lok Sabha MPs, and the rest have one each. Each MP is elected for five years,
unless the Lok Sabha is dissolved sooner.
Elections to the Lok Sabha, conducted broadly on political-party lines, resulted in Congress Party
majorities in 1950-71 and 1980-85. Coalitions or minority groupings, whether involving the Congress
Party or otherwise, have formed governments in the intervening periods. The rise of strong regional
parties has fractured the composition of the Lok Sabha. This has meant that, at times of coalition
government, state-based regional parties have exercised a decisive influence over bargaining and policy
making, including representation in the cabinet and appointment to other ministerial positions.17 Even
though the composition of the Lok Sabha includes untouchables, tribals, agriculturalists, trade unionists,
businesspeople, and party workers,18 party identities have played a more decisive role. This has led to the
regionalization of the Lok Sabha, decisively affecting its working and functioning.
Within the parliamentary system, the government is accountable to the Lok Sabha, which voted or
forced out of office various governments in 1979, 1991, 1992, 1996, and 1998. Invariably, both larger
opposition and smaller regional and splinter parties have played an important role. To meet the problem
of members changing party allegiance in mid-term, India amended the Constitution in 1985 and then
again in 2003 to add the Tenth Schedule of the Constitution, which is applicable to the Lok and Rajya
Sabhas and to the state legislatures. The object of these changes, which were designed to prevent
legislators from crossing the floor in order to destabilize governments, has been significantly frustrated by
partisan decisions of the speakers of the various houses, in whom power to make the decision about
disqualification lies.19 Generally, the law has been less efficacious than it might have been.

Rajya Sabha (Council of States)

The Rajya Sabha has 250 members, 238 of whom are elected by the lower houses of the legislatures of
the states20 and 12 of whom are nominated by the Union executive for their contribution to literature,
science, art, and social service.21 The distribution of the elected seats depends on the respective
populations of states, in accordance with a formula that gives the less populous states only a minor edge.
Larger states have more seats. Thus Uttar Pradesh has 31 members, Tamil Nadu and Andhra have 18
each, and Bihar and West Bengal have 16 each. The six states of the North East, Sikkim, and Goa have
one member each. The Union territories of Delhi and Pondicherry have three members and one member,
respectively, while the other Union territories have no representation in the Rajya Sabha.
The indirect elections to the Rajya Sabha take place broadly along political party lines but
nevertheless may produce fractured results due to the rise of strong regional parties. In some senses the
Rajya Sabha has also become a haven for politicians who have either not contested or have lost Lok
Sabha elections, whether or not they are from the state in question or even from the state political party
that enables their election. Given that cabinet and other ministers can also be drawn from the Rajya
Sabha, many well known ministers (including, at one point, Indira Gandhi, later prime minister) were,
and continue to be, drawn from the Rajya Sabha. This may have resulted in qualified and well known
persons entering the Rajya Sabha but at the cost of turning seats into a species of pocket boroughs in the
hands of political parties in power in Delhi and the state capitols, where candidates are handpicked by
party high-commands and elected by processes that confirm predictable results. Because this practice is
convenient for all political parties, Parliament passed an amendment to the election law in 2003 allowing
a person to be elected to the Rajya Sabha even though not domiciled in the state he or she represents. This
has resulted in Rajya Sabha seats being even more readily available for political patronage, geared rather
to representing party than state interests.
The general composition of the Rajya Sabha has been changing. Earlier, a greater number of
Rajya Sabha members apprenticed in state legislatures, the Lok Sabha, or local government. In recent
years fewer Rajya Sabha members have been members of state legislatures. Frequent changes in the
composition of the state legislatures, which are the electoral colleges for Rajya Sabha elections, have
encouraged political opportunism in the sense that newly formed political majorities in power in the states
have patronized new people hungry for office without reference to their past political record or service.
Equally, less effective Rajya Sabha MPs continue as MPs for a second and third term. While the
significance and extent of these changes should not be overstated, they display a perceptible trend.22
While the Lok Sabha is elected for five years (unless dissolved sooner), Rajya Sabha members
are elected or nominated for six years, with one-third retiring every two years. This has meant that the
party political composition of the Rajya Sabha is often markedly different from the Lok Sabha, more so
when the latter has been prematurely dissolved or its term extended, as in the emergency of 1975-77.23
The different composition of the two houses was most significant in the wake of the emergency in 1977
when Indira Gandhi’s Congress Party lost its mandate in the Lok Sabha and was no longer in government
but had a majority in the Rajya Sabha. Congress thus was in a position to force the incumbent Janata
government (1977-79) to compromise on many legislative issues, including constitutional amendments
intended to redesign the centralist and anti-civil libertarian constitutional amendments of the emergency.24
When the BJP (Hindu nationalist) led coalition was confronted with such an opposition majority in the
Rajya Sabha in 2002, it called a joint session of both houses to override the majority in the Rajya Sabha
in order to pass anti-terrorist legislation. This procedure is described in greater detail below; it is rarely
invoked, however, and the Rajya Sabha derives considerable significance from its capacity to block
Union legislation.

Relationship between the Lok Sabha and the Rajya Sabha

The Constitution provides that the Council of Ministers, or cabinet, “shall be collectively responsible to
the House of the People” (Article 75[3]). Within parliamentary democracies, this means that the prime
minister and his or her ministerial colleagues – even if some of them are not members of the lower but
only of the upper house – must enjoy the support of the Lok Sabha. Where an election does not result in a
clear majority, a convention has evolved whereby the president requires the selected prime minister to
obtain a confidence vote within a stipulated period.25 In 1996 a BJP minority government failed to
command a majority and fell after thirteen days in office. Equally, two Union governments fell in 1979
and without a vote. Requiring a confidence vote from a fragile minority or coalition government even
before it has commenced its political life is an Indian innovation that contributes to instability in the name
of stability. So far, lack-of-confidence votes have caused the fall of ministries in 1990 and 1996, while in
1979, 1991, 1996, and 1998 prime ministers resigned without facing a confidence motion because they
felt that they did not have a majority in the Lok Sabha. The pivotal role of the Lok Sabha in determining
the right of a government to hold office represents its unique significance, in contrast to the Rajya Sabha.
The two houses have co-equal powers in respect of all legislation except money bills.
Amendments to a money bill by the Rajya Sabha can be overridden if the Lok Sabha passes the bill again
without the amendments proposed by the Rajya Sabha. However, when it comes to legislation other than
money bills, changes by the Rajya Sabha cannot be overridden so simply. There are many instances in
which the Lok Sabha has accepted Rajya Sabha amendments to proposed legislation, including the
constitutional amendments of 1979. The only formal way to break a deadlock between the Lok Sabha and
the Rajya Sabha over bills other than money bills is to call a joint session of Parliament, pursuant to
Article 108. This happens rarely; the procedure was invoked, however, in 1961 over the Dowry Bill, in
1977 over a bill on banking, and in 2002 over anti-terrorism legislation. Where the government has an
overall numerical majority in both houses, the effect of the procedure is to nullify the dissent of the Rajya
Sabha.
The Rajya Sabha has also, on occasion, contributed to legislative centrism. In 1950, 1951, and
1986, it used the power vested in it by virtue of its federal character to resolve by a two-thirds vote that it
was necessary to the national interest for Parliament to make laws on specified state matters, thus,
potentially at least, undermining legislative federalism.26
The Rajya Sabha’s institutional veto on non-money bills has enhanced its reputation and
significance. Generally, however, differences between the two houses do not result in brinkmanship. In
most cases negotiations among political parties break the deadlock, often by not passing the legislation in
question. More significantly, bills may be referred to a joint committee (in which the Lok Sabha usually
has a majority) to resolve differences. Negotiations in joint committee are conducted against a
background of awareness of the strength of the various parties in the Rajya Sabha, which inevitably
influences the outcome.
Since 1992 permanent joint select committees have been set up to oversee particular ministries,
monitoring the operation of the ministries as well as considering bills referred to them. This dual task has
generally overloaded these committees to the point where their operation needs to be re-examined in
order to make them more effective. Both houses retain power to form their own permanent or select
committees or to agree to the establishment of joint select committees. Ultimately, political forces
determine the extent to which the Rajya Sabha checks and balances the Lok Sabha.
The Rajya Sabha and federalism

Although the Rajya Sabha is described as a council of the states, reservations have been expressed about
its efficacy as a “federal” chamber.27 This is due to aspects of its design as well as to operational pressures
on its function and working. First, the states are unequally represented, which results in the domination of
the more populous states and of the parties deriving support from them. Second, members are selected on
the basis of political-party patronage, as a result of which the composition of the Rajya Sabha has become
increasingly fractured along regional and party lines, to the point where elections effectively take place in
party caucuses in Delhi and the state capitols. Detracting further from the federal character of the Rajya
Sabha, members who have no link with a state can now be nominated from that state in order to provide
seats for supporters of the party. This is a problem that all political parties seem to want to perpetuate.
Finally, although opinion is divided on the actual performance of the Rajya Sabha, which has often forced
the incumbent government and the Lok Sabha to rethink issues, it nevertheless is a less powerful house
that is seen as representing political party priorities at the expense of regional and state interests.
Both the Sarkaria Commission of 1988 and the National Commission to Review the Working of
the Constitution of 2002 assumed that the Rajya Sabha played a federal role, without examining its work
and role or making any real suggestions for reforming it. No attempt therefore has been made to alter the
status quo. Changes that might enhance the role and status of the Rajya Sabha include, for example,
giving all states equal representation in this house; providing for direct election of members of the Rajya
Sabha by the people; and requiring such matters as executive appointments and certain foreign policy
decisions to be approved by the Rajya Sabha. The result would be a smaller house, elected by the people
with more specific functions that could, perhaps, enrich Indian federalism.

THE UNION EXECUTIVE

The President and Cabinet

India has a parliamentary form of government whereby the president is the formal head of state while the
active business of government is carried out by ministers drawn from and responsible to the Parliament.
The president and vice-president are elected by an electoral college consisting of the members of the
Union Parliament and state legislatures according to a formula in which elected members of the federal
legislature and members of the state legislatures have the same number of votes and in which the
proportion of each state’s votes depends on the proportion of its population share. In this way, direct
election is avoided but the base from which the president is elected is broader than that of the federal
legislature alone. A system of proportional representation is used for the election, involving a single
transferable vote, ensuring that the successful candidate has an absolute majority.28 Normally, votes occur
along political party lines, with the result that most elections are not seriously contested. There have been
a few exceptions, however. In 1967 a former chief justice of India entered the fray but lost after receiving
almost 45 percent of the votes of the electoral college. Similarly, in 1969, Indira Gandhi successfully
urged her party members to vote against the official Congress Party candidate. Since the emergency
(1975-77), presidential elections have been contested more vigorously; but generally, following attempts
to obtain consensual support from the opposition parties, the candidate of the Union government in power
has been elected. Given the volatility of Indian politics, it is difficult to predict what will happen in the
future.
The president represents the federation as a whole but has to act on the aid and advice of the
prime minister, except in limited situations relating to the selection of the prime minister and the
dissolution of the Lok Sabha. But the president is not prevented from playing an active role in governance
and has the constitutional right to be informed, with access to files and information.29 There have been
occasional conflicts between the president and prime minister, and while the advice of the prime minister
will ultimately prevail if he or she wishes it to do so, the role of the president may be a complicating
factor. Thus in 1986 the government allowed its unpopular postal bill to lapse when, after it had passed
both houses and was sent to the president for assent, the president returned it to the government for
reconsideration.30 In 1978, following the emergency (during which the president acted as a rubber stamp
to a dictatorial prime minister), the Constitution was amended to give the president the right to return the
advice of cabinet on a once-only basis. This is a unique power, which could also be used to remind the
Union government of its responsibilities to the states. The power has been formally exercised only in one
instance, however, when President K.R. Narayanan, in 1998, asked the cabinet not to impose emergency
presidential rule on the state of Bihar. The intervention of the president stalled the imposition of
emergency rule for a few months. When the proposal was revived in 1999, however, the president was
powerless to intervene again because of the once-only rule. The proclamation was made but subsequently
had to be revoked when it became apparent that it would not be approved by the Rajya Sabha.31
The Union cabinet is effectively chosen by the prime minister. In choosing a cabinet, however, a
prime minister always seeks to include representation from all the regions of India and as many states as
possible. This is dictated as much (if not more) by expediency as by respect for the federal principle.32
However, the capacity to expand the size of the cabinet to diversify political and regional representation
was curtailed by a constitutional amendment in 2004, which states that the size of the Union and state
cabinets cannot be greater than 10 percent of the size of the lower house to which the cabinet is
accountable. Thus, following the constitutional amendment, a Union cabinet cannot have more that 53
persons until the size of the Lok Sabha increases in 2026.33 Since 1989 the governments in power in the
Union sphere have generally been coalition governments with minority support in Parliament. This has
enabled the members of the coalition to bargain for and obtain a more diversified political party
representation in the Union cabinet.

Executive power

The Union executive has broad, sprawling power. Following a Supreme Court ruling of 1955,34 this
power can broadly be conceived as having two parts: (1) an executive power that is coterminous with the
legislative powers of the Union, even where no legislation has been passed on the subject, and (2) a
statutory executive power to implement laws passed by Parliament. While the latter is conditioned by
guidelines from Parliament, the former can be used by the government at its discretion, as long as it does
not transgress any enacted law or constitutionally guaranteed fundamental rights.35 The combination of
the narrow and wider species of executive power enables the executive to act in a great many ways
without recourse to the legislature. The Constitution also empowers the Union and state executives to
make ordinances when the legislature is not in session. An ordinance has the same effect as any law but
must be ratified by the relevant legislature within six weeks after it reassembles.36 This power has been
much abused. An example is the strong anti-libertarian anti-terrorist legislation, initially introduced by
ordinance in 2001,37 obviating federal and democratic discussion.38
The Union’s wide executive power dominates both foreign affairs and internal policy. The treaty-
making power encompasses any agreements with other nations. Theoretically, no treaty is legally
effective unless incorporated into the domestic law by legislation. In fact, however, self-fulfilling
multilateral treaties, like the World Trade Organization (WTO) agreements, have transformed Indian
governance. At least three states - Tamil Nadu, Orissa, and Rajasthan - filed cases in the Supreme Court
questioning the Union’s right to enter into treaties without consultation with, if not the consent of, the
states, but the cases were not pursued. Anxiety about federal domination through this power remains,
however, especially within a contemporary global context in which so much is ordained through
multilateral treaties.39
The capacity of the Union executive to use its executive power to devise policies for the states
without enacting Union legislation is a characteristic of the practice of Indian federalism. A great deal of
state governance is framed by national policies declared by the Union executive. A core agency for this
purpose is the Planning Commission, a non-statutory body established in the exercise of executive power,
through which India’s socioeconomic planning takes place. The commission is chaired by the prime
minister. While in form it is only an advisory body, in fact it is highly influential in the development of
the national policies articulated by Union ministries in all fields, including health, education,
environment, water, forests, population, food, transport, and communications. These policies provide a
basis for the allocation of resources and are followed by all states. Non-statutory mechanisms that are
used to secure compliance include conditional grants and loans.
In addition, the Union has a narrower executive power to implement statutory laws, which are
enacted pursuant to the Union’s vast reservoir of legislative powers and which affect every aspect of
India’s economy. Even after the liberalization of the economy in 1991, techniques of Union control over,
for example, the Telecom Regulatory Authority, the Competition Commission,40 and the stock market
remain significant. Education, including various aspects of tertiary and professional education, is
regulated by Union legislation as well. Some public-sector enterprises are created by the executive under
the general corporations law, but Union legislation has also created public corporations in areas such as
broadcasting, communications, banking, finance, engineering, airlines, and food distribution, which
intervene to dwarf both private and state activity. The increasing privatization of the economy is likely to
diminish the importance of these institutions - but not yet, and not completely.

Union administration

India’s federal governance is bureaucracy-driven. Adapting the pre-independence British model of

centralized civil services designed to sustain a revenue-based law-and-order federal structure, independent
India took the view that a powerful centralized bureaucracy was necessary to secure the nation’s unity and
to enable planned development. Under the Constitution both the Union and the states recruit their own
civil servants through independent public service commissions.41 At present the Union’s All-India
services include the Indian Foreign Service, Indian Administrative Service, Indian Police Service, and
Central Tax Services. The Constitution permits the Union to create more All-India services if there is a
resolution to that effect by at least two-thirds of the Rajya Sabha. Following such resolutions, the All-
India Services Acts 1951-63 created the possibility for the Indian Service of Engineers, Indian Medical
and Health Service, and Indian Forest Service. However, only the Indian Forest Service has been created.
Later, Rajya Sabha resolutions for All-India Education and Agriculture Services eluded implementation
because of strong opposition by the states.
Recruitment to the All-India services is conducted centrally; once appointed and trained,
however, the officers are allocated to cadres, which for the most part are coterminous with states and thus
made available for state administration. During this time, they are under the operational control of the
state concerned, although they remain officers of the Union subject to recall by Union authorities.
Through the All-India services, the Union exercises influence throughout the entire administration of
India, including the states’ own subordinate services, recruited by state civil service commissions.
Union legislation may be administered either by the Union itself or by the states. In practice, the
Union civil service is relatively restricted, and much administration takes place in the state sphere. Union
legislation enacted pursuant to concurrent powers is likely to be administered by the states, unless the
legislation provides otherwise. In addition, authority to administer Union laws made in the exercise of an
exclusive power may be conferred on state officials below the governor.42 Conversely, states may confer
administrative functions on the Union43 through an amendment to the Constitution in 1956 that was
prompted initially by experience with the execution of development projects.44
The Constitution provides a framework of principle for these arrangements. Union functions may
be conferred on states by the president, conditionally or unconditionally, only with state consent.45 Union
legislation, however, may confer functions on states without a requirement for state consent. In either
case, additional administrative costs must be met by the Union. State functions can be conferred on the
Union only by the governor of the state concerned and only with Union consent.
Inevitably, there is a question about the extent to which one sphere can supervise the exercise of
its executive power by the other. The Union has authority to give directions to the states in particular
cases but has more general authority as well, which is relevant in this context. First, the states are obliged
to exercise their executive power in a way that complies with both Union and state law, and the Union
may give directions to the states for this purpose.46 Second, the states are obliged to exercise their power
in a way that does not impede the executive power of the Union, and again, Union directions may be
given to this end.47 A sanction lies in Article 365: if a state does not comply with Union executive
directions, the president may declare that the government of the state is unable to be carried on in
accordance with the Constitution, triggering a Union takeover of state administration.
Thus, in both theory and practice, India’s constitutional setup creates a strong central legislature
and executive. But it is the Union executive, with a powerful bureaucracy at its command, that controls
Union and state government, with limited functional accountability to the Union legislature. Although the
legislature has tried to strengthen its control over the executive through debates, legislation, and the
committee system, the executive remains dominant.
Powerful centralized bureaucracies thus are a disturbing feature of Indian federalism. Although
recruited independently by the constitutionally created Union Public Service Commission, the All-India
services are employed by the Union, which controls them for disciplinary purposes and can transfer them
in and out of any state. It is bureaucrats drawn from these central services who effectively run the Union
government and all state governments and have a pivotal presence in every local district in India. In the
state and district arenas the Union’s bureaucrats work under the direction of state governments but remain
employees of the Union. As long as the same dominant political party ruled the Union and the states,
problems did not surface. Nevertheless, in 1967 the Administrative Reforms Commission on federal
relations thought it was “unusual” that All-India services serve state government but are “controlled by
the Union.” In 1969 an expert committee from Tamil Nadu noted that state bureaucracies should be
recruited by the states not the Union. This was followed in 1974 by a demand from Tamil Nadu’s
Assembly that this should be so. The Union’s Sarkaria Commission (1988) revealed that many state chief
ministers giving evidence to the commission had insisted that state governance should be run exclusively
by the state’s own civil servants and not by Union-appointed bureaucrats. In reality, it is imperative for
Indian federalism that the states be permitted a more expanded role to recruit their senior bureaucrats or at
least have greater control of the officers seconded to them.48 The Union, backed by its powerful All-India
bureaucracies, is unlikely to yield to this demand – using India’s unity, endemic disorder, and planned
development as the rough-and-ready excuses for not doing so. Although there is ongoing consultation
between Union and state governments over the control and use of Union bureaucracies in state
administration, any overall change is unlikely in the near future.

THE UNION JUDICIARY

The Constitution created a common hierarchy of courts, beginning with district courts and culminating in
the Supreme Court of India. However, this hierarchy is structured along federal lines. Each state has a
high court with comprehensive powers to adjudicate on all aspects of the exercise of public power by the
Union and state governments, including the enforcement of fundamental rights. The executives of the
state in consultation with the respective high court create the lower courts of the state, including the
magistracy and hierarchy of district courts, which is constitutionally under the administrative control of
the state high court. The Constitution permits the creation of an All-India judiciary through an act of
Parliament, following a resolution agreed to by two-thirds of the members of the Rajya Sabha. Although
this has not occurred, the Supreme Court has mandated working conditions of service for the subordinate
judiciaries of all the states in order to sustain judicial standards and to protect the independence of the
judiciary.49 Thus, state judiciaries are appointed and controlled by state authorities even though all their
judgments can be appealed not just to the state high court but also to the Supreme Court.
The Supreme Court of India strides like a colossus over Indian governance. The Court has
exclusive jurisdiction to decide interstate disputes, original jurisdiction to defend fundamental rights,
special jurisdiction to give advisory opinions, and appellate jurisdiction over all matters decided in the
courts below. Over the years it has expanded the scope of all these jurisdictions through interpretation of
the Constitution. Apart from its wide jurisdiction, the Supreme Court has acquired control over
appointments to both the Supreme Court and state high courts. Although these appointments are made by
the president in consultation with the Supreme Court and state high courts, in a series of judgments
between 1981 and 1998 the Supreme Court wrested from the executive the power to make these higher
judicial appointments. The authority of the Supreme Court includes transferring high court judges from
one high court to another and determining their elevation to the Supreme Court.50 To provide a structure
for this exercise of power, the Supreme Court has created a collegium of its five senior-most judges to vet
all appointments; the executive invariably accedes to its decisions. Almost all Supreme Court judges are
appointed from among the high court judges and rarely directly from the bar. In most instances Supreme
Court appointments violate the principles laid down by the Court itself, by-passing the experience and
merit criteria in favour of intuitive selections. Through this process, the Supreme Court virtually controls
the high courts with respect to both appointments and to transfers of judges, without reference to the state
governments and with the nodding approval of the Union executive. The Constitution also permits the
Union to create All-India tribunals with special jurisdictions, which are subject to judicial review by both
the high courts and the Supreme Court.51
Over the years, the Supreme Court has given the Union great latitude in the reorganization of
state boundaries, the interpretation of the legislative lists, the scope and priority of Union legislation in all
matters concerned with centralized planning, and the Union’s exercise of emergency and other powers
over the states.52 This trend continues, although the Court has not been wholly unmindful of state
powers.53 More significantly still, the Court has used its powers to determine issues relating to
fundamental rights to create a species of public interest litigation. Thereby, along with the Union, the
Court can issue directions to control government activities in relation to the environment, forestry,
education, food distribution, welfare, and substantive and procedural due process. In this regard, the
Supreme Court of India may be the most powerful federal court in the world.
However, in 1993,54 the Court, while exercising judicial review over the Union’s power to impose
president’s rule on the states, declared that “federalism” is part of the unalterable basic structure of the
Constitution, beyond the reach of even the plenary power of constitutional amendment. Both the
theoretical and practical implications of this conceptual statement are not clear. There have been too many
amendments to the Constitution’s federal provisions to sustain the argument that no part of the original
federal structure can be altered. This being so, it is not clear as to what is alterable and what is not.
Equally, if the concept of federalism as part of the basic structure is an interpretative tool to control or
temper the exercise of legislative or executive power, there is little evidence of such a concept being
generally invoked – still less a systematic exposition of what “federalism” implies as a concept
underlying the working of the Constitution.
In short, India’s unified judicial system provides for considerable autonomy and independence of
the state judiciary, which is under the control of state high courts. However, the whole system is presided
over by the Supreme Court, which comprehensively influences and dominates the Indian judiciary.
Generally centrist in its approach, the Supreme Court has not been insensitive to the claims of the states
on an ad hoc basis. Yet the judicial pronouncement that federalism is part of the basic structure of the
Constitution has thus far eluded both application and elucidation as a central motif of Indian governance.

THE STATES

State legislatures

The parliamentary system of the Union is replicated in the states, with some modifications.55 State
legislatures are constituted by and under the Constitution to include the governor and the houses of the
legislature. The governor summons and can prorogue both houses of the legislature, dissolves the lower
house, makes an address to it every year, signs all bills or reserves them for the assent of the president,
and promulgates ordinances when the legislature is not sitting. All states have a legislative assembly to
which the state cabinet is responsible. The assembly is elected for a term of five years unless dissolved
sooner. A state legislature may also have an upper house, called a legislative council, which is not more
than one-third of the size of the assembly, subject to a minimum membership of 40. Members are elected
for six-year terms, and one-third retire every two years. The composition of a legislative council is
complex. Unless Parliament makes provision to the contrary, one-third of the members are elected by
local governments, one-third by members of the legislative assembly, and one-twelfth each from
constituencies consisting of secondary school graduates and of secondary and tertiary education teachers.
The remaining members are appointed by the governor and must have excelled in literature, science, art,
cooperative movements, or social service (Article 171).
Bicameralism in the states was a controversial issue in the Constituent Assembly, where the
inherently conservative character of a second chamber was seen as undesirable by some and as a useful
check on over-hasty legislation by others.56 Given the manner of the formation of the Indian federation,
some states entered the Union with legislative councils that had been created during the colonial period,
while others did not. The Union Parliament is empowered either to create or to abolish a legislative
council for a state, on the basis of a resolution of the legislative assembly passed with a weighted majority
(Article 169). The procedure has been used to abolish councils in West Bengal (1969), Pubjab (1970), and
Tamil Nadu (1986). As a result, only five states, including Jammu and Kashmir, which has a somewhat
more autonomous position in the Indian federation,57 now have a bicameral legislature.58 It may be that
this is unfortunate and that with the advent of a constitutional third order of local government, there is a
case for legislative councils to be reinstalled to represent local government and to enhance democratic and
responsive government.59
Like the Rajya Sabha, a legislative council cannot block a money bill from enactment. But, while
the Rajya Sabha can force the government to call a joint session of both houses to resolve a disagreement
over other kinds of bills, the legislative council of a state can only delay such bills. There is no provision
for a joint session of a state legislature. If bicameralism were revived, changes might be needed to
restructure the houses of state legislatures, their inter se relationship, and their respective powers.
However, it is the unelected governor, appointed by the Union executive but normally acting on
the advice of the state cabinet, who plays a critical role in the working of the legislature by summoning,
proroguing, and dissolving the legislative assembly and by signing bills passed by the legislature to
transform them into statutes. The governor has the power to refuse to assent to a bill (especially if it
relates to the constitutional powers of the high court) and reserve it for consideration by the president.60
Both the governor and the president may refer a non-money bill for reconsideration by the legislature.
Where the legislature passes the bill again, the governor will give his consent or reserve it for
reconsideration by the president. These complex provisions give both the governor (who, in this instance,
acts for the Union and is not bound by his own cabinet’s advice) and the Union executive a veto power
over state legislation. The Sarkaria Commission suggested that these provisions have been greatly abused.
In some instances, years passed before the president recorded his assent to state legislation. Even if such a
power exists, it should be structured and subjected to time limits.61
The powers of the state legislatures extend to matters on the state and concurrent lists of India’s
Constitution. State legislation on the concurrent list repugnant to Union legislation is void, and even some
of the items in the state list are subject to override by any legislation passed by the Union to the contrary.
By this means, some of the powers of state legislatures are restricted even in areas otherwise exclusively
reserved by the Constitution for the states as matters of primary state responsibility, including education,
health, industry, agricultural land, mining, police, and some aspects of revenue-raising. Since the 1992
constitutional amendments creating a mandatory third order of local government, state legislatures are
also required to devolve powers to local government, including fiscal powers to raise revenue, even
though the bulk of funds for the third sphere of government come from grants from the governments of
the states.62
However, this picture of the restraints on the legislatures of the states should not detract from
their constitutional and political importance. State governments are accountable to state legislatures and
hold office as long as they enjoy the confidence of the latter. One consequence is that state legislators vie
for office, switching sides despite the anti-defection provisions in the Constitution, holding state
governments to ransom as more and more coalition and minority governments come to power in the
states. State legislation remains singularly important in the crucial areas of policing, welfare, agriculture,
natural resources, local government, and provincial governance generally.

State Executives

Although parliamentary government is replicated in the states, there are important differences in the way
in which it functions. The Constitution provides that state executive power is exercised in the name of the
governor who acts on the advice of the state cabinet. But the governor is appointed by the president on the
advice of the Union government, acts as a conduit between the Union and the state, and can be seen as a
political agent of the Union, in the guise of a constitutional head of the state.63
The Constituent Assembly considered whether governors should be elected by the people of the
state. The plan was abandoned on the grounds that a nominated governor would enhance Indian unity,
would be more likely to be impartial, and would not rival the chief minister of the state for political
power.64 There have been many controversies over the appointment and removal of governors. The
Union government generally consults about appointment with the chief minister of the state, but the state
has no veto over appointment. Patronage, rather than ability, plays a considerable role in the choice of
governors, many of whom are defeated politicians or retired bureaucrats. Although governors are
appointed for five years, they hold office at the “pleasure” of the president, and they can and have been
summarily transferred or removed from office. Where a different party is in power in the Union and a
state, a governor may act to destabilize the government of the state. In 2006 the Supreme Court declared
that it is important that governors appointed by the Union be persons of integrity and high calibre.65
Governors have the power to appoint and dismiss chief ministers. They also reserve bills for
assent by the president as a veto on legislation passed by the state legislatures. Most important, however,
is the power of the governor to recommend that an emergency president’s rule be imposed because of a
failure of the constitutional machinery in the state. When this happens, state democracy is overridden, the
Union legislature takes over the state legislature’s functions, and the governor acts for the president. The
chief minister is dismissed, and, in most cases, the state legislature is dissolved to enable fresh elections
or kept alive until a new government favoured by the Union takes over. These draconian measures have
been invoked 95 times. In two instances, in 1977 and 1980, nine state ministries were removed at once.
There is a view that the provisions for president’s rule should be abolished.66 Such abolition
would not render the Union incapable of exercising its general powers to impose an emergency in any
part of the territory of India if faced with war, external aggression, or armed rebellion. Where such a
general emergency is imposed, the material mechanisms of democratic accountability remain undisturbed.
The Union Cabinet remains accountable to the Union Parliament and the State Cabinet remains
responsible to its respective Legislature. This can be contrasted with a situation in which the Union
imposes president’s rule on a state because of the latter’s breakdown of constitutional machinery. In such
cases, the Union executive and Parliament take over the legislative and executive functions of the state,
subverting both democracy and federalism. All parties complain about abuse of this procedure when they
are out of power; once in power, they seek to preserve it.
In all other respects, the executive power of the states is exercised in a manner similar to that of
the Union. State governments have broad executive power, which can be exercised without reference to
legislation, to create instrumentalities and corporations in order to further their activities. They also have a
more narrow executive power to implement legislation. The states have at their command the services of
officers of the All-India services as well as members of the state services selected through state service
commissions. The state government exercises control over the third tier of local government, including
the power to impose emergency rule.
As in the Union sphere, therefore, the executive branch of government dominates governance in
the states, subject to the requirements of accountability to the people through their state legislature and the
electoral process.

State Judiciary
India has a single court system, with a high court and subordinate courts in each state, from which appeals
lie to the Supreme Court of India.67 A high court can also be established by the Union Parliament for two
or more states, and this happened in two instances.68
The judges of each state high court are appointed by the president through a procedure that
involves consultation with the governor or governors of the states concerned, but in which the Supreme
Court has a decisive say. High court judges can be transferred by the president to another state but may be
removed only by impeachment through Parliament.69 The high courts are constitutionally powerful and
can strike down both Union and state legislation that violates the Constitution, including the fundamental
rights of citizens. The lower judiciary of the state is, in effect, under the judicial-administrative control of
the state high court, which must be consulted by the governor on appointments and which hears all
appeals from other state courts. Corruption and incompetence in the lower judiciary is dealt with by the
high court, which can force the dismissal of lower court judges. Despite misgivings about the operation of
the state judiciary, which is overburdened with work resulting in a huge backlog of cases, the state
judiciary in India remains a crucial custodian of the rule of law, dispute settlement, and justice.

LOCAL GOVERNMENT

From the outset, India’s Constitution provided for the structure and empowerment of village panchayats
by the states as a directive principle of state policy (Article 40). Local government was also included in
the state list of legislative powers. Implementation of the requirement for local self-government was slow
and patchy, however, and in 1992 the Constitution was amended to entrench local self-government.70 The
Constitution now provides a framework for multilevel panchayats in rural areas and municipalities in
urban areas. The type, size, and organization of the local authority depend on the area it serves, ranging
from a municipal corporation, with an average population of 1 million people, to a gram panchayat
serving between 20,000 and 700 people.71 The constitutional provisions delineate the core requirements
for the composition of local government: direct election from equal constituencies; five-year terms of
office; reserved seats and reserved positions as chairperson for scheduled castes, scheduled tribes, and
women (including women who are members of scheduled castes and tribes); and supervision of elections
by the state election commission. The Constitution authorizes states to confer such powers on local
authorities as are “necessary to enable them to function as units of self-government” in relation to a range
of specified matters, including water, public health, and primary education, foreshadowing their
involvement in the preparation and implementation of schemes for economic development and social
justice. It also empowers states to make financial provision for local government through the conferral of
tax-raising authority, tax-sharing, and grants, and it requires the establishment of state finance
commissions to advise the state governor on the financing of local government. These provisions were not
initially extended to tribal areas, for which the Union subsequently made special provision.72
These amendments established India as a responsive multilevel federation in which local
government is part of constitutional governance. They mobilized the power of people at local levels,
effecting change most notably in relation to the involvement of women and of disadvantaged
communities. However, local government remains dependent on state action for its powers and financial
resources, and the states have, in general, been reluctant to surrender either power or resources, raising a
question of whether devolution of power should be mandated by the Constitution itself.73 Outside the
relatively limited areas of authority entrusted to local authorities, local governance remains the domain of
district authorities (including the police) who are drawn from the All-India and state administrative
services.

INTERGOVERNMENTAL RELATIONS

In order to ensure smooth intergovernmental relations, various centralizing mechanisms have been
created by the Constitution itself and by various statutes. These include the comptroller and auditor
general of India, who audits the accounts of the Union and the states and reports to their respective
legislatures (Articles 149-151); the Election Commission, which conducts elections to the Union
Parliament; the state assemblies and the posts of president and vice-president (Article 324(1)); and the
Union Public Service Commission, which recruits All-India bureaucrats to govern at all levels (aside from
those positions held by minor bureaucrats recruited by the state public service commissions) (Articles
315-323). A powerful mechanism in the form of the Union Finance Commission was created by the
Constitution to distribute revenues and grants and work out equalization formulas for distributing
financial resources based on state demands and needs. While the work of successive finance commissions
has not escaped criticism, without them Indian federalism would become unworkable, especially in the
light of the limited revenue-raising power of the states.74
Because the Constitution elliptically empowers the Union with far-reaching powers, Union
legislation has been enacted in vast areas of socioeconomic significance. The Constitution has sought to
ensure that the Union’s legislation and directives are implemented. A special chapter dealing with
Administrative Relations (Articles 256-262) ensures that the Union can give directions to the states to
implement its legislation and give overriding directions on the construction and maintenance of strategic
communications, highways, waterways, and railways. With the consent of the governor, special duties
may be assigned to state governments for which the Union has to bear the extra costs of administration.
The Constitution was amended in 1976 to enable the Union to unilaterally send in armed forces to the
states, but this amendment, which was made during the emergency, was repealed soon thereafter in 1979.
However, various mechanisms for decision making and enforcement are built into the legislation enacted
by the Union. The Reserve Bank of India controls banking throughout India. Under various statutes,
paramilitary forces have been created and used mainly in the border states. Special provisions were
enacted in 1958 for the North East to use the army to “assist” the civil administration, and new
mechanisms are now contemplated by the Union to contain religious strife and communal violence in the
states. A Central Bureau of Investigation (CBII) was created by statute in 1946 and can investigate crimes
within states with their consent. The CBI has been mandated by the Supreme Court and state high courts
in a number of cases to conduct investigations of state authorities on the directions of the courts without
the consent of the state governments. The Central Vigilance Commission, which was originally created as
a non-statutory body, has now been statutorily empowered to examine cases of malfeasance by public
officials throughout the country. To ensure professional standards for professional and tertiary education,
Union statutes have set up All-India bodies under the Advocates Act, 1961; the University Grants
Commission Act, 1956; the University Medical Council of India Act, 1956; and the All-India Council for
Technical Education in 1987. Although represented on these councils, the states have been unhappy that
their control over education have been subordinated to these powerful bodies. The courts have stepped in
to rectify the imbalance in some cases while generally supporting regulation by the Union through these
statutory bodies. Union legislation often creates institutions in which the states are represented and where
the implementation of the statute is left to the states and their officials.
Given that India was committed to social change through the social and economic goals of
planned development, in 1951 Prime Minister Jawahar Lal Nehru created a powerful planning
commission under the executive power of the Union consisting of the prime minister and experts and
advisors appointed by him. The Planning Commission has dominated India’s economy without any
representation from the states, although they are consulted informally on an ongoing basis. Even after the
liberalization of the economy since 1991, the Planning Commission remains a pivotal body that defies
federal principles of representation and mandatory consultation. As if to assuage the feelings of the states,
in 1952 Nehru’s government executively created the National Development Council to approve state
development plans. The council includes the chief ministers of the states in its membership and tends to
decide by consensus rather than majority vote – conscious that planning decisions lies with the Planning
Commission and revenue-sharing with the Finance Commission.
Formally, all disputes between the Union and the states or among the states are left to
adjudication by the Supreme Court. An exception is made for water disputes between states; these are
decided by special tribunals established by the Union. Informally, there are intermittent meetings of the
governors of the states. Such meetings, which are held often, do not regularly give the Union feedback on
what is happening in the states and are treated with suspicion by opposition political parties in power in
the states. Concurrently, and much less frequently, meetings of the chief ministers of the states have
occasionally been called. Initiated in 1946 during British rule, this practice never matured and fell into
disuse; instead, Prime Minister Nehru made it his personal practice to correspond with Congress chief
ministers. Chief ministers have preferred to band together on party political lines rather than come
together as a collective group. Meetings between various state and Union ministers and bureaucrats take
place individually but rarely collectively, except in certain areas. On the suggestion of the Supreme Court
in Aruna Roy’s Case (2002), the Central Advisory Board on Education (CABE), originally established in
1926, was revived to effect collective consultations between the Union and the states on education. The
National Integration Council was created in 1961 and has been reconvened from time to time. Its mandate
includes discussions on multicultural governance. More significantly, the Union set up the National Water
Resources Council in 1982 to examine water development plans. But such mechanisms are limited to
their subject areas.
The Constitution envisaged the creation of a central forum in which chief ministers could
collectively formulate policies and make decisions. Although the Constitution made provision for an
interstate council for “investigating and discussing subjects [of] common interest … or making
recommendations,”75 ever since 1967 or so, when non-Congress ministries emerged in various states,
there has been discontent about interstate relations. Tamil Nadu’s Rajmannar Committee Report in 1971,
West Bengal’s Memorandum of 1978, and various protests by other states led to the appointment of the
Sarkaria Commission, which, in 1988, recommended a large number of piecemeal changes in various
areas. One of the recommendations of the Sarkaria Commission was to establish the Interstate Council,
which had been provided for by the original Constitution but never brought into being.
In 1990 a non-Congress Union government created a permanent interstate council. It is a
somewhat unwieldy body in which all states are represented. It has not been particularly effectual, and
each state continues to try to resolve its problems with the Union by direct negotiation. Within the
council, no mechanism has emerged for the chief ministers to meet and make mandatory decisions.
Fractured election results with a multiplicity of parties forming coalitions within the Union and states
have further resulted in the states falling back on political mechanisms to obtain crucial financial and
planning dividends. States feel their interests are better negotiated individually rather than through a
politically fractured collectivity.76 They are wary of a collective interstate council that could tower over
state governance and undermine accountability to the state legislature.
In dealing with intergovernmental issues, the practice of Indian federalism prefers to address
problems in a multiplicity of ways rather than through mechanisms that over-centralize negotiatory
decision making. There is a need to develop an interstate council, but it will continue to be ignored as
long as other, more effective political, constitutional, executive, and statutory decision-ensuring
mechanisms exist alongside it. To some extent, the states are right not to surrender their autonomy to an
interstate body that can only strengthen executive federalism at the expense of democratic accountability.

LOOKING TO THE FUTURE

No single chapter can do justice to the complexity of Indian federalism. The people of India reflect a
religious, linguistic, cultural, and social diversity that is unparalleled even when compared with what is
found in the various other continents of the world. Devising a constitution for India was like creating a
constitution for many civilizations rolled into one.77 At the same time, the disparity between the rich and
the poor is so great that, unless adequate interregional transfers and allocations are made through some
measure of centralized planning, the disparities will remain.
Adapting the revenue-based law-and-order approach to governance bequeathed by the British to
independent India, India’s constitution makers created a strong centrist model for planned development. It
was also clear that, while all states were entitled to equal respect, they had to be treated unequally.
According to their needs, specific provisions in the Constitution ensured preferential provisions for some
states and areas within states. However, in the early 1950s the southern states demanded a language- and
culture-based federalism. From 1956 India’s internal geographic boundaries were restructured to provide
for a multicultural federation – a process that is ongoing. At one level, this suggests a weakness in Indian
federal governance in that even the geographic boundaries of a state can be violated. But in some
respects, this flexibility has proved to be a strength of Indian federalism. Federalism has been further
fortified by the rise of regional parties, which, in the era of coalitions, have preserved India’s diversity
within a negotiatory federal arrangement.
The script of Indian federalism has been further rewritten by the local government amendments of
1992, which require the states to devolve power and resources permanently to the control of three-tier
local panchayats from grassroot to district levels. These local governments are to be serviced by their
own bureaucracies borrowed from the state civil services.
The problems and possibilities of Indian federalism arise from the complexity of its internal
workings and the challenges before it. In the event of India not breaking up, the geographic restructuring
of the states along linguistic and cultural lines will challenge assimilative overtures arguing for
centralism. In time, the very large states might break up into smaller states with their own distinct social
and cultural identities. But there are some inherent problems in the structure and working of Indian
federalism that need attention. India has an executive-dominated parliamentary system backed by
powerful All-India bureaucrats who dominate an over-centralized governance system. This is complicated
further by the states not having enough revenue-raising powers, even though a constitutional amendment
enlarged the share of the states to be distributed by the Finance Commission. What will alter the balance
of power within Indian federalism is greater parliamentary control of the executives of the Union and the
states, a decentralization of the All-India bureaucracies to enable the states to have greater control over
the officers who serve them, greater revenue-raising powers in the states, and a more people-based direct
democracy emerging from local government. As between states, India needs to work through a more
effective negotiatory federalism but still needs to develop further the institutional structures, process, and
practices that will enable this. It is in this sense that a Supreme Court judge asked if India’s Constitution –
and, perforce, its federal system – is in a state of being or becoming.78

Notes
1
On the constitutional origins of India’s federal structure, see Granville Austin, The Indian Constitution:
Cornerstone of a Nation (New Delhi: Oxford University Press, 1966), 186-264; B. Shiva Rao, ed., The Framing of
India’s Constitution – A Study (Bombay: N.M. Tripathi Ltd., 1968), 592-707. In addition, see Akhtar Majeed,
“Republic of India,” Constitutional Origins, Structure, and Change in Federal Countries, ed., John Kincaid and G.
Alan Tarr (Montreal and Kingston: McGill-Queen’s University Press, 2005), 180-207; George Mathew, “Republic
of India,” Distribution of Powers and Responsibilities in Federal Countries, ed., Akhtar Majeed, Ronald L. Watts,
and Douglas M. Brown (Montreal and Kingston: McGill-Queen’s University Press, 2006), 156-180; Francine R.
Frankel and Douglas V. Verney, eds., “Emerging Federal Processes in India,” Publius: The Journal of Federalism 33
(Fall 2003): entire issue.
2
Benjamin Disraeli, “The Maintenance of Empire,” a speech delivered at the Crystal Palace, 1872,
<http://www.lclark.edu/%7Ecampion/hist328/imp-speeches.htm>, viewed 8 January 2006.
3
The phrase “idea of India” is here taken from Sunil Khilnani, The Idea of India (London: Hamish Hamilton, 1997)
and draws sustenance from Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of
Nationalism (London: Verso, 1983). All federations – as, indeed, their units – are “imagined communities,”
portraying an “idea,” which, in time, may take root as social reality either to pull a federation together or to divide it.
4
The best overview remains the Sarkaria Report by the Government of India, Commission on Centre-State
Relations: Report (New Delhi: Government of India, 1988); note also the not very inspiring Report of the National
Commission to Review the Working of the Constitution (New Delhi: Government of India, mimeo, 2002), chap. 8.
For a broad overview see R. Dhavan and G. Goel, “Indian Federalism and its Discontents,” Federalism and
Decentralisation: Centre-State Relations in India and Germany, ed. Gert W. Kuek (Delhi: Mudrit, 1998), 43-83. The
literature on federalism is legion. More recently, see B.D. Dua and M.P. Singh, ed., Indian Federalism in the New
Millennium (Delhi: Manohar, 2003); Lawrence Saez, Federalism without a Centre: The Impact of Political and
Economic Reform on India’s Federal System (New Delhi: Sage Publications, 2002).
5
Constitution of India, Articles 3 and 4. Rasheeduddin Khan in his Federal India: A Design for Change (New Delhi:
Vikas Publishing House Pvt. Ltd., 1992) suggests breaking up India into more than 50 states.
6
Government of India, Census of India 2001, <http://www.censusindia.net/results/resultsmain.html>, viewed 8
January 2006.
7
Government of India: Census of India 2001: The First Report on Religion Data (New Delhi: Registrar General and
Census Commission, 2004). Apart from Hindi and English (the national and official languages) the Constitution’s
Eighth Schedule recognizes 22 languages.
8
Note the special provisions in the Constitution for Kashmir (Article 370), other states (Articles 371-371G and
378A), and Tribal areas (Fifth and Eighth Schedules read with Articles 244 and 244A).
9
Constitution of India: Part XI (Articles 245 – 255) read with the legislative lists in the Seventh Schedule –
discussed by M.P. Jain, Indian Constitutional Law (Nagpur: Wadhwa and Co., 2003), 557-662.
10
Constitution of India, Part XVIII : Emergency Processes (Articles 352-360).
11
Article 3.
12
The famous “basic structure” case is Kesavananda v. State of Kerala (1973) 4 Supreme Court Cases 225 – on
which see Granville Austin, Working of a Democratic Constitution: The Indian Experience (New Delhi: Oxford
University Press, 1999), 258-277, 328-333. A brilliant innovation, the basic structure doctrine has been followed in
various cases both as inspiration and example – see M.P. Jain, Indian Constitutional Law, 1897-1935; on federalism
as part of the basic structure, see S.R. Bommai’s case (infran. 54).
13
The Constitution of India empowers the Union to appoint the Election Commission (Articles 324-342) to conduct
elections to the offices of the president and vice-president’s (Articles 54-58), Union Parliament (Articles 79-81), and
State Legislatures (Articles 170-171). The actual elections are conducted under the Representation of Peoples Acts,
1950 and 1951.
14
Appointed by the Union under the Delimitation Commission Act, 2002 (earlier 1952), the Delimitation
Commission structures constituencies on a demographic basis. However, at present all constituencies are frozen
until the year 2026 by the Constitution (Eighty-Fourth Amendment) Act, 2001.
15
Sections 123 (2),(3),(3A),(3B), and 125 of the Representation of the Peoples Act, 1951; and note the decision of
the Supreme Court in Dr Ramesh Prabhoo v Prabhakar K.Kunte (1996) 1 SCC 130 that appeals to “Hindutva” was
not necessarily an appeal to the Hindu religion but to Indian culture.
16
On the rise of fundamentalist politics, see C. Jaffrelot, The Hindu Nationalist Movement and Indian Politics (New
Delhi: Penguin Books, 1993).
17
On recent Indian elections, see M.P. Singh and Rekha Saxena, India at the Polls: Parliamentary Election in the
Federal Phase (New Delhi: Orient Longman, 2003); and for earlier elections see Z.D. Butler, A. Lahiri, and P. Roy,
Indian Divides: Elections 1952-1995 3rd ed. (New Delhi: Books and Things, 1995).
18
On the composition of the Lok Sabha see Subhash Kashyap, “Members of the Lok Sabha 1952-1996” Politics
India (October 1996): 22-32.
19
For examples, see M.P. Jain, Indian Constitutional Law, 5tthed. (New Delhi: Wadhwa and Company Nagpur,
2003), 50-57.
20
Article 80.
21
Constitution of India, Article 80 and the Fourth Schedule.
22
This point was made by Sandeep Shastri, in a paper delivered to the Country Round Table in June 2004, held in
preparation for this chapter. The paper is entitled “Representing the States at the Federal Level: Role of the Rajya
Sabha.”
23
On constitutional change during the “Emergency,” see R. Dhavan, The Amendment: Conspiracy for Revolution
(Allahabad: A.H. Wheeler, 1978).
24
See R. Dhavan, Amending the Amendment (Allahabad: A.H. Wheeler, 1979).
25
Jain, Indian Constitutional Law, 156-161.
26
Article 249. A resolution can authorize such legislation for a maximum period of one year, but it may be renewed.
27
A point also made by Sandeep Shastri during the Country Round Table. See note 22.
28
Article 55.
29
Articles 78 and 167 give rights to information to the president and governors.
30
The bill would have authorized the authorities to intercept mail on a range of public security grounds. See Jain,
Indian Constitutional Law, 75.
31
Jain, Indian Constitutional Law, 821-822.
32
See generally V.A. Pai Painandikar and A.K. Mehra, The Indian Cabinet: A Study in Governance (Konarak
Publication Pvt. Ltd., 1996).
33
Constitution (Ninety-First Amendment) Act, 2004.
34
Rai Sahib Ram Jawaya Kapur v. State of Punjab (1955) 2 SCR 225. On the Ordinance-making power, see
Constitution of India, Articles 123 and 213; and on its abuse, see D.C. Wadhwa v. State of Bihar (1987) 1 SCC 378.
35
Kharak Singh v State of UP AIR 1963 SC 1295; Bijoe Emmanuel v State of Kerala AIR 1987 SC 748.
36
Articles 123 and 213. Given the constitutional requirements for a session of Parliament every six months, this
means that the maximum period for which an ordinance might operate is seven and one-half months. See Jain,
Indian Constitutional Law, 208.
37
Prevention of Terrorism Ordinance 2001
38
Pradip K. Ghosh, “Indian Anti-Terrorism Law,” Jurist (January 2002)
<http://jurist.law.pitt.edu/world/foreignjan02.php>, viewed 8 January 2006.
39
Article 253; see R. Dhavan, “Treaties and People: Indian Reflections” Journal of the Indian Law Institute 39
(1997): 1-46; the later landmark judgment on Visaka v. State of Rajasthan (1997) 6 SCC 241 incorporating human
rights treaties into Indian Law as guaranteed rights even without implementing legislation. In 1992 various states
filed cases against the Union on joining the World Trade Organization (WTO) treaty, but they did not take the matter
further.
40
Competition Act, 2002, <http://www.competition-commission-india.nic.in/>, viewed 8 January 2006. The Union
government may issue policy directions to the commission and may “supersede” it if it persistently fails to comply.
See sections 55, 56.
41
Articles 31-320.
42
Article 154(2).
43
Article 258A.
44
Jain, Indian Constitutional Law, 771.
45
Article 258, 258A.
46
Article 256.
47
Article 257.
48
Era Sezhiyan, “On Contentious Territory,” Frontline, August 18-31, 2002.
49
Constitution of India, Article 312; and the Supreme Court’s successive orders in All India Judges Association v.
Union of India (1992) 1 SCC 119; and finally, in the same case, at (2002) 4 SCC 247.
50
Special Reference No. 1 (1998) 7 SCC 739 explaining the earlier cases of 1982 and 1993.
51
Constitution of India, Articles 323A and B, and further L. Chandra Kumar v. Union of India (1997) 3 SCC.
52
See M.P. Jain, Indian Constitutional Law, 557-662 (on federal issues) and 1546-1555 (on public interest
litigation); more generally, on the “India’s judiciary’s ‘new’ approach,” see R. Dhavan, “Judges and Indian
Democracy: The Lesser Evil,” Transforming India: Social and Political Dynamics of Democracy, ed. Francine
Frankel (New Delhi, Oxford University Press, 2000), 314-352.
53
State of West Bengal v Kesoram Industries (2004) 10 SCC 201; ITC v Agricultural Market Produce Committee
(2002) 9 SCC 232.
54
S.R. Bommai v. Union of India (1994) 3 SCC 1.
55
For an overview, see “Legislative Bodies in India,” <http://legislativebodiesinindia.nic.in/>, viewed 9 January
2006.
56
Jain, Indian Constitutional Law, 342.
57
See generally Jain, Indian Constitutional Law, chap. 17.
58
Bihar, Maharashtra, Karnataka, and Uttar Pradesh.
59
K.C. Sivaramakrishnan, “A House under Scrutiny: The Second Chamber Has Its Uses,” The Tribune On-line, 16
July 2004, <http://www.tribuneindia.com/2004/20040716/edit.htm#4>, viewed 9 January 2006.
60
Article 200.
61
Articles 200-1; and on its abuse, Government of India, Commission on Centre-State Relations, 139-159.
62
Constitution of India, Chapters IX (Panchayats) and IXA (Municipalities).
63
See Government of India, Commission on Centre-State Relations, 111-38; Austin, The Indian Constitution, 574-
593; and, more elaborately, A. Kashyap, Governor’s Role in Indian Constitution (New Delhi: Lancers Books, 1993).
64
Rao, Framing of India’s Constitution, 398-407.
65
Rameshwar Prasad v. Union of India, 2006 (1) SCALE 385.
66
Article 356 of the Constitution of India. On “President’s Rule” generally, see Rajeev Dhavan, President’s Rule in
India (Bombay: N.M. Tripathi, 1978); B. Dua, Presidential Rule in India 1950-84 (Delhi: S. Chand and Co., 1985);
Amal Ray with John Kincaid, “Politics, Economic Development, and Second-Generation Strain in India’s Federal
System,” Publius: The Journal of Federalism 18 (Spring 1988): 147-167; Kashyap, Governor’s Role, 537-679;
Government of India, Commission on Centre-State Relations, 161-89; Jain, Indian Constitutional Law, 785-824.
67
See generally, Articles 214 – 237; for analysis, see Jain, Indian Constitutional Law, 434-532.
68
Article 231. The states with a common high court are, first, Punjab and Haryana and, second, Assam, Arunachal
Pradesh, Nagaland, Meghalaya, Manipur, Mizoram, and Tripura.
69
R. Dhavan, “The Transfer of Judges,” The Hindu, 27 October 2004.
70
Constitution (Seventy-Third) Amendment Act 1992 and Constitution (Seventy-Fourth) Amendment Act 1992.
71
Commonwealth Local Government Forum “The Local Government System in India,”
<http://www.clgf.org.uk/2005updates/India.pdf>, viewed 9 January 2006.
72
Panchayat (Extension to the Scheduled Areas) Act 1996.
73
See reported remarks of Union Minister for Urban Affairs, Ghulam Nabi Azad, “Powers to Local Bodies:
Constitutional Amendment Likely,” The Hindu, 3 April 2005, <http://india.eu.org/2295.html>, viewed 9 January
2006.
74
Constitution of India: Articles 264-293; Government of India, Commission on Centre-State Relations, 243-356;
Jain, Indian Constitutional Law, 663-760; and M. Govinda Rao, “Indian Fiscal Federalism from a Comparative
Perspective,” Federalism in India: Origins and Development, ed. N. Mukharji and B. Arora (New Delhi: Vikas
Publishing House, 1992), 272-316.
75
Article 263(b)(c).
76
On interstate relations, see Constitution of India: Articles 256-263 (on administrative relations and the interstate
council). More generally, on interstate cooperation, see Jain, Indian Constitutional Law, 825-880; Austin, “Working
a Democratic Constitution, 614-630; and on interstate councils, see Rekha Saxena, Situating Federalism:
Mechanisms of Intergovernmental Relations in Canada and India, (New Delhi: Manohar, 2006).
77
See Rajeev Dhavan, A Constitution for a Civilisation, M.N. Kapur Memorial Lecture, New Delhi, 2000 (mimeo).
78
Justice Dwivedi in Kesavananda v. State of Kerala, at 921.