Constitutional Outrage
When figuring out if a constitution is federal, we need to remember a key idea of federalism: every person in the state has to follow laws from two different authorities—the federal government and their own state government. If there's a clash between a valid federal law and a valid state law, the court decided that if the two laws can't work together, the federal law takes priority over the state law. Article 257 talks about how the federal government has control over the states in certain areas. Just like when a federal law conflicts with a state law, the federal law wins, there can also be issues when the federal executive power and state executive power clash. Article 257 also states that each state's executive power should be used in a way that doesn't interfere with the federal government's authority.
To comprehend the notion of federalism within the framework of India, it is essential to reference the criteria established by Professor Wheare. In his seminal work, "Federal Government," Wheare's principles have been applied to the Indian Constitution. Generally, these criteria can be accepted, provided they are enhanced by the insightful commentary from the professor, who astutely noted the importance of investigating whether a federal context was present in the nation prior to the establishment of a federal constitution. In the case of India, another scholar remarked that the Indian subcontinent exemplified a federal situation due to its vast size, diverse population, regional disparities, and challenges in communication, which suggested the potential for multiple distinct nations. The subsequent historical analysis of how the Indian Constitution embraced a federal framework strongly corroborates Professor Sawer's assertion that a federal context undeniably existed in India.
The Government of India Act of 1935 introduced a federal approach to governance. The Montague-Chelmsford Report from 1918 suggested that a federal system could be a future solution for British India's quest for political freedom. However, it noted that the necessary conditions for such a federation were lacking since the provinces were not self-governing entities capable of delegating powers to a central government. The British Parliament acted on this by enacting the Indian Independence Act, which established two independent dominions in India. Ultimately, the Indian Independence Act of 1947 provided a practical federal framework.
Our constitution is based on the Government of India Act of 1935, particularly in how it divides legislative powers. When the constituent assembly was working on the new constitution, they had several models to choose from, but they made a smart choice by using the 1935 Act as their foundation. This decision allowed India to transition smoothly from British rule to a new republic without losing continuity with the past. The existing laws and constitutional rules remained in place, which provided India with the benefits of gradual change rather than a complete break from its history.
Article 1 states that India is a union of states. It follows the federalism model suggested by Professor Wheare. Looking at the United States Constitution, we can see that its structure is based on the federal principle, where the government is split between a central authority and regional authorities that are independent of each other. For a constitution to be considered federal, it doesn't have to fully adopt a federal system; it just needs to have the federal principle as its main focus.
The British Parliament established a federal constitution for Canada through the British North America Act of 1867 and for Australia via the Commonwealth of Australia Constitution Act of 1900. Regarding the Government of India Act of 1935, it includes three lists in its seventh schedule. List 1, known as the federal legislature, possesses comprehensive legislative authority, while List 2 grants the provincial legislature similar exhaustive powers. List 3 allows for concurrent legislative powers between the central and provincial legislatures.
A comparison of the Canadian and Indian constitutions reveals that both frameworks were designed to create a federation as well as to govern the states. This reflects the aspirations of the restructured provinces to come together and establish a federal union. A constitution that is poorly drafted or contains ambiguous provisions can lead to ongoing legal disputes over the delineation of powers between the central and state governments, thereby hindering the effective functioning of the constitution. It is noteworthy that the concurrent list does not include specific tags but solely addresses fees.
The idea of war and emergency powers in federal states during conflicts shows how these states can function like a single entity under their constitutions. For example, in countries like the United States, Australia, and Canada, the authority to manage defense or war is given to the federal government. This is similar to the Government of India Act of 1935, specifically Article 352, which allows the president to declare a state of emergency if there is a serious threat to India's security from war, outside attacks, or internal unrest. Additionally, Article 250 states that once such a declaration is made, Parliament can create laws on issues that are usually under state control for the duration of the emergency. If the emergency declaration persisted after the state emergency had ended, then unless it could be shown that this continuation was justified, Indian courts would not overturn actions taken during the emergency period.
Article 356 and 357 state that the president can declare a proclamation if there is a failure in governance, and these articles outline the powers the president can take on after making such a declaration. Our constitution, similar to Canada's, establishes a framework for both the union and the states. Article 4, Section 4 of the U.S. Constitution serves as a reference point for Article 355 of our constitution. Looking at the United States first, Article 4, Section 4 mandates that the U.S. must ensure every state in the union has a republican form of government. This part of the U.S. Constitution not only guarantees a republican government but also requires the U.S. to protect each state from foreign attacks and to assist if the state's legislature or executive requests help against violence. While it’s not always necessary for the U.S. to enforce its rights, the importance of following the procedures outlined in Section 4, Subsection 4 has diminished over time.
The biggest misuse of democracy happened during the emergency declared in June 1975. It's clear that the creators of the constitution aimed to protect a free democratic system from being undermined by force or violence. While how our constitution functions is crucial for understanding if the federal principle is upheld, it's also true that a serious misuse of power doesn't reflect how the constitution was meant to operate or how it usually operates under normal circumstances. The 44th amendment has limited the power related to armed rebellion and has added protections to prevent the automatic extension of the emergency declaration.
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