A federal Constitution possesses the following characteristics –
- System of double governments
In a federal Constitution, there exists a double government i.e. the Central government and the State or the regional Governments. This feature is also found under the Indian Constitution. - Distribution of powers
A Federal Constitution essentially provides for distribution of powers between the Central and the State Governments. Both the governments are coordinate and independent in their sphere and not subordinate to one another. Indian Constitution also provides for such distribution of powers.
LEGISLATIVE
As far as the legislative powers are concerned, the subjects have been divided into three
lists as given under the Seventh Schedule of the Indian Constitution, namely –
- UNION LIST
- STATE LIST
- CONCURRENT LIST
- Subjects of national importance such as defense of India, Naval, Military and Air Forces, Foreign Affairs, Railways, National Highways, Foreign Exchange, Banking etc have been placed under the Union List i.e. List I. The union list in all contains 97 items.
- The subjects of local interest such as public order, police, local government, public health and sanitation, hospitals, agriculture, etc. have been placed under the State list i.e. List II which contains 66 items.
- The subjects which are of local interest but require uniform treatment all over the country such as education, factories, newspapers, civil or criminal laws, contract have been placed under the Concurrent list i.e. List III which contains 47 items.
Parliament i.e. the Central legislature has exclusive power to make laws with respect to any of the matters as mentioned under List I. The State legislature has the exclusive power to make laws upon the matters that are mentioned in the State list.
Parliament as well as the State legislatures has a concurrent (co-existing) power to make laws on the matters listed in the concurrent list. If there is a conflict between same laws as passed by the Parliament and a State legislature on a particular subject, then the law passed by the Parliament shall have an over-riding effect or it will prevail and the State law to the extent of repugnancy will be void.
Distribution of powers is an essential feature of Federal Constitution but Indian Constitution also has following characteristics of a Unitary Constitution. (Unitary features)
- Although law making power is vested in both, the Parliament and the State Legislature as to the matters enlisted in List 3, but the very factor that if both the above said legislative bodies enact their own legislations on a particular matter and such laws tends to conflict, then the law passed by the Parliament would prevail and the State law shall, to the extent of repugnancy, be void.
- An exception to this is given under Article 254(2) wherein such repugnant law made by State legislature was reserved for President’s consideration and it has received President’s assent, then such law may prevail in that State.
- Also, the residuary power to legislate upon any matter that has not been listed in any of the three lists has been vested in the Parliament. Whereas in American Constitution, such residuary power is vested in the State legislatures.
Parliament can also make laws with matters listed in the State list in the following cases –
- 1) Under Art.248 – A general power of the Parliament to legislate upon matters mentioned in State List.
- If Council of States i.e. Rajya Sabha declares by a resolution supported by not less than 2/3rd of the members present and voting that it is in the national interest that Parliament should make law regarding a subject-matter of the State list, it shall be lawful for the Parliament to pass such law. {valid for 1 year/ceases after 6 months}
- While proclamation of emergency is there.
- If two or more State Legislatures feels that Parliament should legislate upon a matter of common concern to such states, but the Parliament directly does not have a power to legislate upon such matter, then on such request being made by such States, the Parliament can legislate upon the same.
- In case of State emergency (under Art. 356)
- The provisions under Art. 2 and 3 also indicates the unitary features of the Indian Constitution.
- Art. 2 – Admission or establishment of new States.
- Art. 3 – Formation of new States and alteration of areas, boundaries or names of existing States.
Both the above functions and powers to do the same have been vested in the Parliament by the Indian Constitution.
ADMINISTRATIVE
As such, Indian Constitution provides for distribution of the administrative powers as well. But, there are certain features of being unitary system with this regard as well.
Art.256 – The State must so exercise their executive powers as to ensure compliance with the
laws made by Parliament and the Union govt. can also give directions to a State in this regard. If
the State fails to comply, the President may impose State emergency on this very ground.
FINANCIAL
Under a Federal Constitution, the union and the States are financially independent. But,
under Indian system, the States are dependent upon the Centre for the grants-in-aid and the
financial assistance. This indicates the unitary feature of Indian Constitution.
- Rigid and Written Constitution
It is not necessary that a federal Constitution should always be a written Constitution but it has been observed that in most of the countries having a Federal Constitution are generally written Constitutions. India too has a written Constitution and under Art.368, three
modes of amendment have been provided, which renders it neither absolutely rigid nor absolutely
flexible.
- Independent judiciary
Independence of judiciary is necessary to maintain the federal structure intact. Various provisions to ensure the independence of judiciary are-
- Appointment of judges by the Head of the executive or through independent Commission.
- Difficult procedure for their removal(impeachment)
- No variation in conditions of their services to their disadvantage after their appointment.
- Prohibition of any discussion as to the conduct of any judge.
- Security of tenure.
- Supremacy of Constitution
- In India, Constitution is the supreme of the land.
- All three organs of the Indian democracy i.e. the executive, legislature and the judiciary, all have to abide by and follow the Constitutional principles.
- Here, judiciary is regarded as the guardian of Indian Constitution and therefore the power of judicial review holds a very significant place as far as the power of judiciary as the guardian of Constitution is concerned.
- In USA’s Constitution also, since it establishes a federalism, the Constitution is supreme
like India. - In England, there is supremacy of the Parliament. In England, the Parliament is sovereign.
- Supremacy of Constitution is also one of the basic structures in the Indian Constitution
which cannot be disturbed in the name of a Constitutional amendment. - Power of judicial review as provided under Article 13 is a reflection of the independence of the judiciary. Here, it simply means that if the Parliament passes any law which actually contravenes the basic principles laid down in the Constitution, then the judiciary is empowered to review the Constitutionality of a particular enactment and the judiciary may struck down the said law as null and void.
- Art. 32 and Art. 226 are also a different aspect of the independence of judiciary.