A Constitution is either unitary or federal. The latter involves separate States uniting without sacrificing their own political integrity. The oldest federal model is the Constitution of the United States of America, where separate States first formed a Confederation in 1781 and then became a Federation in 1789. To date, the various States in America are independent units and their boundaries cannot be altered by the federal government.  Most States enjoy a much higher degree of autonomy.

Although India adopted the federal model, it was not formed by various States getting together and Parliament also retains the right to form new States or alter the boundaries of the existing ones under Article 3. Thus, it has been repeatedly held that India’s Constitution is federal, albeit with a strong tilt to the Centre. Ironically, the word “federal” or “federalism” is absent in the Constitution. However, Article 1(1) shows our federal character and reads: India, that is Bharat, shall be a Union of States.

The issue of federalism seldom came up for judicial consideration in the first quarter of our Republic. In 1962, a suit was filed under Article 131 by the State of West Bengal challenging the power of Parliament to make a law authorising the Union to acquire land and mineral rights in land belonging to West Bengal. Upholding the competence of Parliament, the majority remarked that several ingredients of a truly federal form of government were absent in our Constitution. It was not the result of an agreement between independent sovereign States to surrender their sovereignty and come together to form a federation. 

It is submitted that the majority view is incorrect and the dissenting judgment of Subba Rao J has properly highlighted the federal structure of our Constitution. He observed that neither the Centre nor the States could encroach upon the functions and instrumentalities of the other and that there was no provision whereby the Centre could take away the property belonging to the States.  He remarked that the future stability of a vast country like India depended upon the strict adherence to the federal principle, which the framers of our Constitution had so widely and foresightedly incorporated therein. He went on to hold that the Supreme Court had the duty to prevent encroachment either overtly or covertly by the Union on the State field or vice versa. [State of West Bengal v. Union of India].

The issue of federalism became important after the Janata Party came to power in 1977, changing the political landscape of the country. Several Congress governments were dissolved under Article 356 which were challenged but the dissolution was upheld. However, the true nature of federalism was laid down in SR Bommai v. Union of India (1994), wherein three out of nine judges elevated federalism to be part of the basic structure. Jeevan Reddy J emphasised that the States were not appendages of the Centre and were supreme within the spheres allotted to them. Federalism was a delicately crafted constitutional scheme which should not be upset by a process of interpretation.

Collaborative or co-operative federalism: Three decades later, issues regarding federalism came up for consideration before the Supreme Court quite frequently. While considering the scope of Article 239AA, the Supreme Court emphasised the collaborative or cooperative nature of federalism and its special significance in the context of the State of NCT of Delhi, its Council of Ministers on the one hand and the Lieutenant Governor on the other. [State (NCT of Delhi) v. Union of India (2018)].

Asymmetric federalism: Article 239AA was also considered in the context of the powers of the Council of Ministers and the Lieutenant Governor, and the special status of NCT of Delhi. The Supreme Court held that the NCT of Delhi was different from other States. This was a case of asymmetric federalism whereby not all States have the same degree of autonomy and power. Asymmetric federalism was once again stressed in the context of Article 370, which applied to the State of Jammu and Kashmir. The Court observed that Articles 371A to 371J were also examples of special powers given to different States, keeping in mind their special requirements.

Uncollaborative federalism: Lastly, the Supreme Court approved the concept of uncollaborative and contestative federalism. In Union of India v. Mohit Minerals (2022), it pointed out that the recommendation of the GST Council under Article 279A was not binding on the State legislature although it was binding on the exercise of subordinate powers by different States. Article 279A gave room for dissent and protest by different States as they have concurrent powers of taxation with regard to GST. The Supreme Court, relying on articles from US journals, observed that it was desirable to have some level of friction, some amount of State contestation and some deliberation-generating froth in our democratic system.

The many facets of federalism do not take away its core principle of the Union and the States observing the constitutional limitations - express and implied - on their powers. A strong India can only be the aggregate of strong States.

Arvind P Datar is a Senior Advocate of the Supreme Court of India.