india

Updated: Jan 24, 2020 07:01 IST

Pursuant to its size and diversity, India has never been effectively managed from one place and one law. Definitely at the entry of the East India Company in the country, the Mughal emperor Jahangir ruled it from Agra through Subhadars and Dewans in subhas (provinces) spread over the Mughal Empire.

The British also did the same as they started acquiring territories in the country, maintaining their monopoly over the administration. The natives started demanding their participation in the administration from the closing days of the 18th century, which was conceded initially in 1909, given some effect in 1919, and again later in 1935, though it always remained defective in one respect or another.

As the British rule started nearing its end by 1940 and the Muslim League started demanding a separate state, the Cabinet Mission announced a complex plan in 1946 providing for a federal structure comprising a Union of India of Provinces and the Indian states in which the Union would have the power to deal with only the subjects of defence, foreign affairs and communication with ancillary power to raise the finance for these subjects.

The Constituent Assembly elected under this plan adopted an Objectives Resolution for the making of the Constitution on those lines, assigning only three subjects to the Union while the rest were left for the states.

While initially the process of making the Constitution started on these lines, on June 3, 1947, the Viceroy declared the partition of the country into two independent dominions. The declaration removed all shackles on the Constituent Assembly, which decided to have a federal constitution with a strong central government and states with enumerated powers. Following this decision, constitutional adviser BN Rau was asked to prepare a draft of the Constitution, which he did diligently and placed before the drafting committee in October 1947. Article 1 (1) of the draft read: “As from the date of commencement of this Constitution ‘India’ shall be a Federation.”

Working on the draft, the drafting committee of the Constituent Assembly changed Article 1 in its draft to read: “India shall be a Union of States.” It converted all references to Federation or Federal to Union except references to Federal Court.

In his covering letter presenting the draft to the President of the Constituent Assembly, BR Ambedkar wrote, “It will be noticed that the committee has used the term ‘Union’ instead of ‘Federation”. Nothing much turns on the name, but the committee has preferred to follow the language of the preamble to the British North America Act, 1867, and considered that there are advantages in describing India as a Union although its Constitution may be federal in structure.”

After the commencement of the Constitution in 1950, constitutional scholars struggled to find the true nature of the Constitution from unitary to federal to quasi-federal, cooperative federal, etc.

When for the first time the issue was raised in the Supreme Court in 1962, by a majority of 6 to 1, it held that it was not true to any federal scheme while the dissenting single judge strongly argued that it was federal. Later, a majority of judges in the Kesavananda Bharati case in 1973 included federalism as part of the basic structure of the Constitution; in the SR Bommai case in 1994 and in a number of cases since then, the court has held that federalism is part of the basic structure of our Constitution.

The SR Bommai case related to the power of the Centre to dismiss the duly elected government of a state, if the President “is satisfied that a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the Constitution.”

As we all know, the satisfaction of the President is the satisfaction of his council of ministers at the Centre consisting of a party or a coalition of parties, which may be opposed to the party in power in the concerned state. Just to get that opposition party government dismissed, the council of ministers may give wrong information to the President, who cannot do more than asking the council of ministers to reconsider their decision. If on reconsideration, the council sticks to its original position, the President has to approve the decision of the council.

However, following the Bommai case, the Supreme Court, as well as some of the high courts, have invalidated dismissal of state governments after asking a test of the strength of the political parties in the state on the floor of the state assembly and restored the dismissed government to its position.

This is a development based on the principle of democracy, which besides being one of the basic features of our Constitution is also one of the three strands of a seamless web that, according to Granville Austin, the Constitution creates along with social revolution and unity of the nation.

If democracy stands above federalism in our Constitution and a majority of the states pass resolutions in their legislative assemblies against the Citizenship (Amendment) Act, can the Supreme Court ignore this fact and not hold that the law is against the basic structure of equality and secularism and therefore, unconstitutional and void ab initio? If the doctrine of basic structure applies to invalidate executive action since Bommai, it must also apply to legislative act with greater force, as has been held by the Supreme Court in more than one case.

Distribution of powers between the Centre and the states and the kind of federal structure it provides or conceives is not the sole basis for the validity of a law or executive action. Equally, if not more important, are the issues relating to the fundamental rights and foundational principles that constitute the basic structure of the Constitution. Some of them are expressed in the Preamble of the Constitution whose reading is being recommended and promoted by the current government. If the government means what it says or recommends, it must abide by what the Constitution and its Preamble say and prescribe. If it does not so abide, it must be deemed to be acting against or in violation of the Constitution. Let us hope all governments, current and future act strictly according to the Constitution, and not even in slight violation of it.

The writer is professor emeritus, University of Delhi