The Constitution of India was framed by an elected Constituent Assembly, and was formally adopted on 26th November, 1949. It came into force on 26th January, 1950 as desired by the Father of the Nation, Mahatma Gandhi. The Constituent Assembly was set-up under the framework of the Cabinet Mission (1946) for drafting the Constitution for Independent India. It was a large representative body having 385 Members, of which 292 were elected by the elected members of the Provincial Legislative Assemblies while 93 members were nominated by the Princely States. But when the Muslim League decided to withdraw its Members from the Constituent Assembly of India and with the creation of separate Constituent Assembly for Pakistan on July 16, 1947, the Membership of the Constituent Assembly of India was reduced to 299 out of which 229 represented the provinces and 70 were nominated by the Princely States.
The first meeting of the Constituent Assembly had taken place on December 9, 1946 with Dr. Sachchidanand Sinha as its interim President. Subsequently Dr. Rajendra Prasad was elected as its President on 11th December, 1946. The 26th January, 1950, was a red letter day in the long and chequered history of India. For on that day the present Constitution of India was brought into force which announced to the world the birth of a new republic.
A Constitution is a document of people’s faith and aspirations possessing a special legal sanctity. It is the fundamental law of a country and all other laws and customs of the country in order to be valid must confirm to it. It sets out the framework and the principal functions of various organs of the Government, as well as relations between the government and its citizens.
There has been a lot of insolvable controversy as to the question whether Indian Constitution is federal or unitary. Some characterized it as federal, while others treated it as unitary. Some others have taken a compromising view. According to them, it has both federal and unitary characteristics. In a unitary Constitution, the powers of the Government are centralized in one government viz., Central Government. The provinces are subordinates to the centre. In the federal Constitution, there is a division of powers between the Federal and the State Governments and both are independent in their own sphere. Dr. K.C. Wheare in his book ‘Federal Government’ characterized the Indian Constitution as quasi-federal. Jenning also characterized it as federal with strong centralizing tendency.
The American Constitution is universally regarded as an example of federal Constitution. It establishes dual policy or dual form of Government i.e., the Federal and the State Government. The powers of both the Central and the State Governments are divided and both are independent in their own spheres. The existence of co-ordinate authorities independent of each other is the gist of the federal principle.
The Constitution which embodies a federal system has normally the following five characteristics—
1. Distribution of Powers.-
An essential feature of the federal Constitution in the distribution of powers between the Central Government and State Governments. Federation means the distribution of the power of the States among a number of coordinate bodies, each originating in and controlled by the Constitution.
2. Supremacy of the Constitution.-
Distribution of Powers will be of no use if the Constitution is not treated as supreme and governments are allowed to violate it. The Supreme Constitution is essential if Government is to be federal. The written Constitution is essential if Federal Government is to work well.
3. Written Constitution.-
The Constitution must also necessarily be a written Constitution. It will be practically impossible to maintain the supremacy of the Constitution. To base an arrangement of this kind upon understanding or conventions would be certain to generate misunderstanding and disagreements.
4. Rigidity.-
For a federation, it is necessary that power to amend the Constitution should not be given exclusively to centre or regional units. Both must participate in the process of amendment. A Constitution of a country is considered to be a permanent document. It is a supreme law of the land. This supremacy of the Constitution can only be maintained if the method of amendment is rigid.
5. Authority of Courts.-
In a federal state the legal supremacy of the Constitution is essential for the existence of the federal system. The independent and impartial authority of courts is essential for the federal structure of the Constitution.
The Indian Constitution possesses all the essential characteristics of a federal Constitution mentioned above. The Constitution establishes a dual polity, a system of double government with the Central Government at one level and the State Government at the other. Each level of Government is supreme in its own sphere. The Constitution of India is written and is supreme. Prof. Wheare remarked, “The Constitution establishes a system of Government which is also quasi-federal…a unitary state with subsidiary federal features rather than a federal state with subsidiary unitary futures”. Jennings has characterized it as a “federation with a strong centralising tendency”.
Though the Constitution of India possesses the essential features of a federation, it differs noticeably from the typical federal system of the world in certain ways. These are—
1. Parliament’s Power to form new States and alter boundaries of existing States
The Parliament of India may form new States, it may increase or diminish the area of any State and it may alter the boundaries or name of any State. The Constitution does not protect the territorial integrity of the States. Parliament can by unilateral action, increase or diminish the area of any State.
2. Appointment of Governors.-
The Governors of the States are appointed by the President (Articles 155 and 156) and answerable to him. This is, however, not a matter of much significance, for, the Governor is only the constitutional head of the States who shall normally act on the advice of his ministers.
3. Parliament’s power to legislate in the national interest.-
Under article 249, Parliament is empowered to make laws with respect to every matter enumerated in the State list if the Rajya Sabha passes a resolution by 2/3 majority that it is necessary in the national interest.
4. Emergency Provisions.-
The Constitution envisages three types of emergencies—
(a) Emergency caused by the war or external aggression or armed rebellion (Article 352);
(b) Emergency caused by the failure of Constitutional machinery in States (Article 356);
(c) Financial emergency (Article 360).
When the proclamation of emergency is in operation the Parliament is empowered to make directions to any State and Parliament is empowered to make laws with respect to any matter enumerated in the State List.
Thus, in principle, Indian Constitution is federal but with capacity to work as unitary when so required.
Kuldip Nayar v. Union of India, MANU/SC/3865/2006 : AIR 2006 SC 3127: 2006 AIR SCW 4394: (2006) 7 SCC 1: 2006 (6) SCJ 702, the Supreme Court of India also observed that federal principle is dominant in our Constitution and that federal principle is one of the basic features of our Constitution.
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