Opinion CJI D Y Chandrachud: Indian federalism is a dialogue

We often assume that federalism is, in itself, a revered constitutional value that must be protected at all costs. The British regime struggled with the unitary system of governance and eventually introduced the federal system of governance in India in the last few decades of their rule. By 1919, the British had set into motion a process of provincialisation, which could not be suddenly reversed at the time of independence for administrative reasons. This, coupled with the linguistic divide, and the sheer size of the country, perpetuated a feeling about “the inevitability of federalism in India” in so far as it vested provinces with legal powers.

However, there is much contestation on whether federalism is a “good” constitutional value. It might surprise many if I told them that the principle of federalism was used as one of the core arguments in support of slavery in the United States. Unlike in India, where federalism has mostly come into focus of the Courts in the context of the division of powers, in the United States, federalism was at the center stage of social laws such as the anti-discrimination law. The Southern American States argued that the federal government’s interference with the slavery laws of the States was an overreach of federal power. This, they argued, was a violation of the rights of the federating States. The States argued that the Constitution did not grant the federal government the authority to either regulate or abolish slavery within state borders.

Thus, federalism was opposed by many in the West. It was viewed as a principle that condoned discriminatory practices in federating units, which the central authority must powerlessly withstand. Of course, in the Indian context, critical engagement with the idea of federalism is sparse. We almost unquestioningly accept federalism as a ‘good’ or desirable value. That is because the Indian Constitution has a very strong social conception of equality and liberty. Thus, conferring independent legislative and executive power to States was never viewed as an avenue of enabling or permitting “socially undesirable outcomes”. It is for that reason that federalism in India has a by and large, political rather than social connotation.

There are two contexts in which federalism may be considered desirable by nation-states: one, to protect heterogeneous identity, and two, to promote efficient governance. Identity federalism is where culturally, linguistically, and religiously distinct communities opt for a federal setup to preserve the commonality of their identities and their distinctiveness. Efficiency federalism, on the other hand, is primarily meant to improve democratic representation even where there is no cultural heterogeneity. The Indian model of federalism is premised on both of the above goals: Protection of identities as well as democratic decision-making. For example, Article 371B of the Constitution is a special provision for the State of Assam. The provision provides for the constitution and functioning of a committee consisting of elected members from specified tribal areas. The purpose of the Committee is to protect the interests and identity of the tribal community within the State through decentralisation. This is an example of identity and efficiency federalism.

Decentralisation of power, which is at the core of efficiency federalism, overlaps slightly with identity federalism in that it creates avenues to empower disadvantaged communities. Disadvantaged communities may not be able to wield power at the national level due to the lack of numbers or political might. But they may have the ability to influence decisions at the local, and State levels. For example, more than twenty Indian states have implemented a reservation of 50 per cent for women in Panchayat Raj institutions. The significance of this move, and what it does for the empowerment of women who belong to rural areas must not be undervalued. This must be contrasted to the total number of women representatives at the national level. Currently, there are 74 women members of Parliament. This stands at a mere 14 per cent.

Of the many great things that the judgment of the 13-Judge Bench in Kesavananda Bharati has given us, the most prominent is the learning that there are certain values that the Constitution espouses and that these values trump majoritarian will. It is such a prominent doctrine, that any citizen of India today would proclaim that federalism is a basic feature of the Constitution. But what does federalism mean in the Indian context? We often hear legal scholars argue that the US Constitution is more federal than unitary, while the Indian Constitution is more unitary than federal. Or that the Indian Constitution has a centralising tendency. What does this mean?

India’s adoption of federalism was, like many of its laws, informed by the historical context of partition, and perceived secessionist threats faced by certain parts of the country at the dawn of independence. Resultantly, while the 1946 Objectives Resolution envisaged a more decentralised conception of federalism, the framers eventually chose to adopt a more centralised model. Resisting the suggestion to insert the word ‘federal’, Dr BR Ambedkar believed and stated that “what is important is that the use of the word ‘union’ is deliberate .. because it is indestructible”.

The framers’ resistance to a more classical form of federalism was not unanimous. Representatives of the provinces in the Constituent Assembly saw it as a betrayal of the very exercise of framing of the Constitution. They resisted the idea of a stronger center. Some even argued that the Constitution being adopted was essentially unitary with a mere facade of parliamentary democracy. The reference for this criticism was the federal model adopted by the United States, where the States have their own Constitutions. In contrast, India’s single Constitution, Parliament’s powers to amend it, the powers of the governors to refer State laws to the President, and the President’s veto over those laws emerged as culprits for the perversion of “purer” forms of federalism in India.

The “centralising tendency” of the Indian Constitution, it is often argued, stems from two of its features — one, the emergency powers of the Union, and two, the residuary legislative powers vested in the Union Parliament. This, I term as the vice of over-simplification. I understand that the legal community is often charged with complicating simple issues with the use of legal jargon. But, trust me when I say this: we must peel multiple layers to understand the contours and the scope of the doctrine of federalism in the Indian context.

There is no denying that our Constitution does contain centralising features such as emergency powers and residuary legislative powers to the Union. However, we must also remember that the Constitution seeks to create a balance. There is, for instance, a rather stringent procedure to amend constitutional provisions which impact the powers of the State. An amendment to the provisions of the Constitution requires a two-thirds majority in both houses of Parliament. However, an amendment to provisions that deal with the legislative and executive power of the States requires a special majority, and additionally, ratification by at least one-half of the States. Similarly, the Constitution confers the power to assent to bills passed by State Legislatures to the Governor who is appointed by the President under the aid and advice of the Council of Ministers. However, the provisions of the Constitution also circumscribe the role of the Governor to ensure that the States are not rendered “subordinate” to the Union.

One of the problems in scholarly studies of Indian federalism is that they often view the model from a “Western” lens. The critiques of Indian federalism assumed that the Western model is the ideal model de hors India’s specific needs. Anything else, was termed as a deviation. That is why the term “quasi-federal” was used to describe the Indian federal model. This, in my opinion, is not ideal and deserves some critical attention.

When we speak of federalism, a model that is suitable to our nation must be adopted. This model must be formulated in the context of the history of the formation of India; the cultural diversity; and the social fabric. An understanding of Indian federalism must also be formulated based on the power structuring arrangements in the Constitution between the Union and the States and amongst different States.

Federalism is not a monolithic concept. It has multiple facets, and those facets have innumerable conceptions. Let us, for example, discuss the meaning of the expression “cooperative federalism”. In 1977, the Indian Supreme Court for the first time described the model of federalism in India as predominantly “cooperative”. Cooperative federalism is a system of governance where the State and the Central units work together to “iron out” the differences that arise in governance to achieve the common goal of development. This is certainly a very ideal route to adopt. However, how evenly balanced would this collaboration be? In a judgment I authored in 2022, I argued that it is not necessary that “cooperation” between the States and the Union is the only way to uphold federal principles. I argued that it is necessary to view Indian federalism as a dialogue in which the States and the Union engage in conversations. Just like the conversations that we engage in on an everyday basis, it could either be easy-going or it could cause friction between the units. The easy-going conversations must not be viewed as the “good” and the friction, as the “bad”. The dialogues between the Union and the States must be placed on two ends of the spectrum. Collaborative discussions that cooperative federalism fosters are at the end of one spectrum and interstitial contestations are at the other hand. Both forms of dialogue are equally important for federalism to flourish.

Another crucial (and unique) point to note about the form of federalism in India is what we have termed as “asymmetric federalism”. This expression must be understood at two levels — one, the independence of the States and the Union in their respective sphere and two, the unique and asymmetric relationship that each State shares with the Union. In a nation as diverse and plural as ours, it is impossible to put all the states in a box and treat them alike with respect to the Union. The constitutional integration of various states to form the nation of ‘India’, if anything, indicates the unique considerations for the integration of each State.

A short history of the constitutional integration of States will help me illustrate this doctrine better. Our Constitution was to have a separate part on the “Constitution of States”, which was to provide provisions relating to States. A separate Schedule was to be attached to the Constitution, which would provide specified variations of the provisions applying to the States for each of the States. While the Constitution, as it stands today, does not provide for such a schedule, the asymmetric treatment of different states was retained in other ways. The Constitution creates federal units of three categories: States, Union territories with a Legislature, and Union territories without a Legislature. Even within these three categories, the Constitution treats certain states differently. For example, Article 371-J of the Constitution provides special provisions for the State of Karnataka.

Thus, when we speak of Indian federalism, we must necessarily recognize the sui generis relationship of different State units with the Union, and in turn, the unique characteristics of Indian federalism.

Constitutional courts shape the federal system through interpretations of the distribution of powers and other manifestations of federalism. A discussion on Indian federalism cannot possibly conclude without discussing the Courts’ contributions in developing this principle. The Courts have been at the forefront of this development, bringing out the nuances of the doctrine to protect the interests of the federating units in terms of identity and efficiency.

To my mind, the Indian constitutional jurisprudence on federalism must be divided into two eras: the centripetal era and the centrifugal era. I term the era before the judgment of the Supreme Court in SR Bommai v Union of India as the centripetal era. Here, the Court adopted interpretations with a centripetal impact, that is, it had a centralising tendency which led to an accumulation of power with the Center and away from the federating States.

I term the era after the judgment in Bommai as the centrifugal era. In this period, the Court has opted for an interpretation that has a centrifugal impact, that is, an interpretation that enhances the autonomy of federating states. In Bommai, the Supreme Court laid great emphasis on preserving the powers of the States. States, it was held, were not mere appendages of the Centre and the Court could not take a route that whittled down the powers of the States.

Let me explain the contributions of the Court in ensuring democratic governance through the principle of federalism with the help of a recent example. Article 200 of the Indian Constitution states that the governor has three options when a Bill that is passed by the State Legislature is presented for assent. The first is that she can assent to the Bill. The second is that she can withhold assent. The third is that she may reserve the Bill for the consideration of the President. The proviso to the provision states that the Governor may send the Bill to the House with a message requesting the House to reconsider the Bill. The question before a Bench headed by me was on the scope of the second option. That is, whether the Governor can indefinitely withhold assent to the Bill, in which case the Bill will die a “natural death.” If this contention were accepted, it would have meant that the Governor could veto Bills passed by an elected government in the State.

We held that the second option cannot be read to confer a veto to the Governor, for that would erode the principle of federalism and representative governance. We read the proviso to the provision as an explanation for the second option: that a Governor can withhold the assent to the Bill only to send it to the House for reconsideration.

Recently, in Minerals Area Development Authority v. M/s Steel Authority of India Ltd., we were deciding the issue of taxation of mining activities. A bench of which I was a part, had to strike a balance between the Constitutional distribution of legislative powers and also the states’ ability to deliver welfare measures. We were cognisant of the reality that different States in the country are differently endowed with mineral resources. Interestingly, this was an instance where federalism impacted not only the state’s political and fiscal rights but also its ability to deliver welfare measures. We drew heavily from these factual realities, the concepts of resource federalism, and “fiscal federalism”.

The Court has, in the last few decades, evolved a robust jurisprudential framework on federalism to ensure that State rights are protected, the identity of various communities are fostered and values of representation are promoted.

Coming now to the aspect of the potential or the future of federalism. The bottom line of the above discussion is this: Our Constitution is a federal one. It sets out the contours of the division of power between the Union and the States in greater detail than some other Constitutions. The three lists appended to the Constitution in the Seventh Schedule are considerably elaborate.

Our Constitution was still ahead of some of its counterparts in so far as it envisaged the limitations of its imagination. The framers of the Constitution were aware of the altered version of federalism they were opting for. Dr Ambedkar was cognisant that the Constitution was essentially tailored to India’s specific needs even if it did not answer the description of “authentic” federal structures.

Scholar Marc Galanter has argued that the Indian Constitution was a “radical readjustment of the relations between groups: old rights are abolished, new rights are established”. What are these “new rights” today and how does federalism shape these rights are the questions we must ask ourselves. The Constitution was meant to be a transformative document and not a static one. Climate change, artificial intelligence, data-privacy and cyber crimes transcend territorial boundaries which form the basis of federal units. These new challenges ill-fit the conventional moulds of Union and States subjects. We must remember the spatial impacts of these overarching problems. Some Indian States are much more severely impacted by the perils of climate change, while some may be more prone to cyber-attacks due to the greater volume or value of virtual transactions. The sui generis nature of our polity has ensured that the “predominant strength of the Union” is counterbalanced by the plenary power of the States. For instance, climate governance matters are fairly distributed between the State and Concurrent lists of the Seventh Schedule to the Constitution and frequently overlap. Several climate bodies have emerged in various states including here in Maharashtra to channel the efforts of the Centre as well as the States towards shared goals of maximising efforts against climate change.

If federalism in the years gone by was about adjusting to the political realities of the country in terms of legislative powers; in the years to come, federalism should also be evaluated based on its ability to foster democracy and constitutional ideals of equality, liberty, dignity and fraternity. States and the Union are both creatures of the Constitution. They must act in synergy and cooperation in finding meaningful solutions to modern-day problems. Our ability to address these challenges, in my view, is the litmus test for our model of federalism and the framers’ faith in it. I hope and wish that we eventually find these solutions in cooperation and mutual allegiance to the common constitutional goals.

The writer is the Chief Justice of India. This is the edited text of the speech delivered at the inaugural Loksatta lecture in Mumbai on October 26