Mahendra Prasad Singh, National Fellow, IIAS
A federal state is a national political formation with at least dual and mutually autonomous governments, internally sovereign within their respectively demarcated domains. It thus ensures self-rule regionally as well as shared rule nationally. In addition to exclusive domains of self-rule and shared rule, there are also some areas of concurrent powers enjoyed by both orders of governments, with the national government prevailing upon the constituent governments in cases of conflict. Externally, a federal state exercises unitary sovereignty in relation to foreign states in international relations. Only a few federal constitutions (Switzerland, 1948; Brazil, 1988; and Nepal, 2015), allow the third-tier local governments federal status, as contrasted with devolutionary powers delegated legislatively by regional governments to them sans as a part of constitutional contract.
The first federal state in modern history was created in the wake of the American Revolution (1765-1783), initially under the Articles of Confederation and Perpetual Union (adopted by the second Continental Congress in 1777) and subsequently under the Federal Constitution of the United States of America (adopted by the Philadelphia Convention in 1787). It happened to be presidential-federal in nature in as much as it combined the principles of presidential government with that of federal government in the same compound Constitution and State Constitutions conforming to it . Canada in 1867 innovated the first parliamentary-federal Constitution by combining a parliamentary government with a federal one. By now, there are at least 28 states in the world that call themselves descriptively federal, though not all can be considered so in terms of the strictly stipulative definition offered above. Forty per cent of the world’s population presently lives in federal countries loosely so called. Federalism and judicial review are among the fastest growing constitutional devices in the world today.
One can delineate four models of federalism in the world today: (i) presidential-federal - USA (1787), Switzerland (1848); (ii) Commonwealth parliamentary-federal - Canada (1867), Australia (1901), India (1949), South Africa (1996); (iii) Continental European parliamentary-federal - Germany (1949), Spain (1978), Belgium (1993); (iv) presidential-parliamentary hybrid - Russia (1993). The ‘big idea/institution’ in presidential federalism is a thoroughgoing separation of powers and tenured governmental stability with independent judicial review; in parliamentary-federalism, fusion of legislative and executive powers and perpetual governmental responsibility to legislature with independent judicial review; in continental European parliamentary federalism, executive responsibility to legislature plus Kelsenian courts subordinate to legislative supremacy. The Russian hybrid flaunts a double-headed executive with a president and a prime minister, neither purely nominal in power, with weak legislative and judicial control.India belongs to the second category above, with some uniquely Indian features, e.g. (a) unilateral power of the Parliament to territorially re-organise states; (b) a constitutionally entrenched ElectionCommission of India for conducting important Union as well as State elections; (c) a federal cadre of All India Services besides Central and State services; and (d) judicial review of not only legislative and executive acts but also of constitutional amendments.India began as a highly centralised federal system and, by and large, remained so for the first four decades (1950-1989), with reversible breaches in 1967 and 1977. Since the 1990s, India began to undergo a process of increasingly growing ‘federalisation’ of its regime earlier marked by strong parliamentary, rather executive, centralism under prime ministers Nehru, Indira Gandhi, and Rajiv Gandhi. I pioneered in proposing this hypothesis of India’s shift from centralised parliamentarism to an increased federalisation in an article first published in 1992. After witnessing a decade of extremely unstable coalition governments in New Delhi from 1989 to 1998 and relatively stable coalition governments but marred by endemic blackmails and corruption from 2009 to 2014, l revised my federalisation thesis to argue that what had really happened was regionalism gone haywire. For federalisation would have actually brought about a balance between extreme centralisation that had prevailed during the 1970s and 1980s, on the one hand, and dysfunctional regionalisation that occurred during the phase of multiparty coalition governments, post-1989, by and large, until 2014.Expectedly, the mixed outcomes of these political tendencies and trends included some qualified positive as well as negative features for the political system. These were (i) the reduced incidence of President’s rule in the States; (ii) decreased instances of reservation of State legislative bills by governors for consideration of the President and their possible disallowance; and (ii) dilution of the supremacy of the prime minister, cabinet collegiality and collective responsibility to the Parliament (Lok Sabha). The coalition partners not only forced the choice of ministerial appointments to the prime minister but also treated ministries and departments allocated to them as semi-feudal fiefdoms.Arguably, the following factors caused the mixed outcomes of crass regionalisation and positive federalisation mentioned above: (i) social and political mobilisation on regional and caste/community/tribal lines; (ii) Party system transformation from one-party dominance to multi-party system and federal coalition governments; (iii) rise of agrarian capitalism in some States or regions; (iv) rise of regional commercial/industrial bourgeoisie in some States/regions; (v) failure of state-led strategy of industrialisation and the resultant economic liberalisation/privatisation/globalisation and ‘glocalisation’ (globalisation + localisation); and (vi) changes in judicial temper and behaviour supportive of federalisation.
The Modi-led BJP/NDA electoral miracle in 2014 slowed down but did not reverse the trend of regionalisation-cum- federalisation by forming a de facto one-party majority government after 30 long years since 1984. The re-election of the Modi government in 2019 with even greater BJP and NDA majorities in the Lok Sabha offers a better chance for a swing of the federal pendulum to an optimum middle space between the extremes of centralisation and regionalisation. In the proposed monograph I hope to elaborate and document this phenomenon of India’s greater federalisation since the 1990s.
III Intergovernmental relations are the crux of a federal polity, their crucial components being the following: (i) Executive Federalism, i.e. intergovernmental relations between the executive organs of the two levels of governments; (ii) Administrative Federalism, i.e. Union-State relations at the administrative level; (iii) Legislative Federalism, i.e. the role of the federal second chamber and the two sets of legislatures in the political system; (iv) Fiscal federalism, i.e. division of taxation powers and sharing of revenues and natural resources; and (v) Judicial Federalism, i.e. the federal judicial structure and adjudication of federal disputes and values. In the backdrop of this first systematic sketching out of an India-centric comparative analytical framework, I propose in this monograph to focus on Judicial Federalism in India. It arguably happens to be a less thoroughly examined dimension of Indian federalism in the political science literature than the other aspects. This choice is also dictated by my interest and expertise as a neo-Institutionalist Indianist and comparativist.
IV The history of modern judicial institutions in India dates back to the establishment of the first Supreme Court in Calcutta under the Regulating Act of 1773, followed by major changes under the Indian Councils Act of 1861, and then under the Government of India Act, 1935. The latter, incidentally, was the first federal Constitution in modern India. The Constituent Assembly of India and the Constitution of independent India set up an integrated federal hierarchy of common general judiciary with the Supreme Court at the apex, High Courts in the States, and district courts and courts subordinate thereto. This judiciary deals with all kinds of civil, criminal, and family law cases (excepting courts-martial or military courts dealing with the guilt of the members of the Armed forces subject to military laws). Only High Courts and the Supreme Court are the courts of constitutional jurisdiction empowered to adjudicate disputes arising out of the fundamental rights of citizens, separation of powers among organs of governments, federal division of powers between Union and State governments, and public interest litigation (PIL).
The Supreme Court has evolved as a federal institution almost beyond recognition since the commencement of the Constitution in 1950. I tentatively sketch this transition into the following phases: (i) The court during the 1950s and 1960s covering the Nehru era and early post-Nehru years, coinciding with what Rajni Kothari called the ‘Congress System’; (ii) The convoluted and turbulent 1970s covering the first phase of Indira Gandhi’s prime ministership marked by the extra-parliamentary JP Movement and internal national emergency (1975-1977) and the Janata Party government phase (1977-1979); (iii) The 1980s covering the return of Indira Gandhi and the Rajiv Gandhi years ; (iv)The 1990s to date, the phase of federal coalition governments, including the return of de facto single-party-majority governments under prime minster Narendra Modi in 2014 and its back-to-back re-election with a massive majority in 2019.
The role of the judicial branch vis-a-vis elective branches of the government have varied in considerable measures during the phases of Indian government and politics delineated above. In terms of broad contours of comparative models of federalism outlined above, the constitutional courts in India during the Nehru era generally conformed to the role of courts in Commonwealth parliamentary federations in Canada and Australia. In these political systems, the independent judiciary has exercised considerable power of judicial review of legislative and executive acts, but it has remained wedded to an approach which may well be described as one of legalism, i.e. judicial restraint limited to the express provisions of the laws and executive decisions. Moreover, the courts
in the White Commonwealth parliamentary federations have never reviewed constitutional amendments. In the post-Nehru periods, the Indian judiciary moved into activist grooves reminiscent of the Supreme Court of the USA, armed with the doctrines of thoroughgoing separation of powers creating coequal and coordinate executive, legislative, and judicial branches of governments and of the ‘due process of law’ (as contrasted with the doctrine of the ‘procedure established by law’ which finds expression in the Japanese Constitution of 1947 and the Indian Constitution of 1949). Despite a more strict separation of powers and the doctrine of institutional checks and balances in the US Constitution, the Supreme court has emerged as a more activist and final arbiter in the complex governmental system.
The post-Emergency judgements of the Supreme Court of India have virtually amounted to interpreting that the term ‘procedure established by law’ in Article 21 of the Constitution relating to the fundamental right of life and liberty cannot violate the principles of natural justice and reasonable restrictions on exercise of arbitrary governmental power, e.g. Maneka Gandhi v. Union of India (1978). This approach has also been extended to adjudication of federal provisions of the Constitution concerning autonomy of State governments , e.g. S.R. Bommai and Others v. Union of India (1994). Moreover, as already mentioned above, the Supreme Court of India has also evolved the judicial doctrine of unamendability of the basic structure of the Constitution in Keshavananda Bharati v. State of Kerala (1973) and several subsequent cases.
While reconstructing the notable federal jurisprudence emanating from the Supreme Court, I propose to scan all important judgements of the court in five important dimensions of federalism since the 1950s : (i) Methodology of constitutional adjudication and judicial doctrines adopted or invented; (ii) Fundamental Rights, good governance and public interest cases; (iii) Structural issues concerning separation of powers and federal division of powers; (iv) Federal ecological governance; and (iv) Adjudication of constitutional amendments and the invention of the judicial doctrine of unamendability of the ‘basic structure’ or ‘essential features’ of the Constitution.
IIAS,Shimla/June 19, 2019. My first presentation on my research project to the Fellows’ Seminar on June 27, 2019 at 3.00 PM.
Indian Institute of Advanced Study
Phone (0177) 2831376, 2832195
Like us on Facebook
Copyright © 2019, Indian Institute of Advanced Study
Drupalized by Rupinder Singh