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CONSTITUTION NOTES - FEDERALISM (10

YARDSTICKS)

System of Checks and Balances envisaged on all major


constitutions.
Example : - NJAC - Independence of judiciary effected - Judicial
review effected - Basic structure effected
Post - Appointment of Judges------Realm of Judiciary-----Not to be
encroached by Executive.
Unitary systems--- Work for small, heterogeneous countries.
Grouping together to form federations - Units cannot move away
from union. Indestructible units. Distinct demarcated spheres of
power. Indestructible union of indestructible units.
Confederations - Unit come together for some purpose. Units
control the Union.
In India, the system is neither Unitary, Federal or Confederation
model.
In Unitary power, all power is delegated (no power is divided).
In a Federation, sovereign units come together and pass on
political powers to a central sphere. The States are left with
residuary powers. e.g. U.S.A
In India, the political power was always centered in a union. Flow
of power has been from the Centre to the State. However,
residuary power rests with the Union.
India : Unitary vs Federal ?
Historically, political power did not have a distinct identity.
Communal Identity ?
Existence of communal issues-----Requirement of Unitary bent.
Unitary is necessary to prevent disintegration through the means of
cessesation. However, too much of it can suppress diversity.
Analogy ----- Delhi Police Act ( Control of centre) while in other
states, Policing is a State subject.
Read :- 10 Yardsticks of Federalism ( Duckeshere)
Division of Power-----In Indian Constitution, 7th Schedule
provides for Division of Power. Article 246 read with concurrent
list----Entry 97 provides for Residuary Powers---Overlap of
Powers.
Yardstick No. 1 - Union should have exclusive control of Foreign
relations. Affirmative. e.g. Policies related to war and peace---e.g.
Entry 1,2,10,12 of List 1 (If not found in the Concurrent list then it
is the exclusive domain of Union) affirm it.
Union executive power posited in Constitution - Article 53 -
Executive power rests in the President and shall be exercised by
him. Article 73 - Extent of executive power of the Union. It
corresponds with the extent of legislature power.
Article 246 read with list 1 and list 3 - Extent of the legislature
power.
Yardstick No. 2 - Immunity against cessation. Affirmative--Since
there is no territorial integrity of units provided in constitution, a
right to cessation does not arise. e.g. States prohibited from
cessation.----Article 1,2,3 & 4---Union can alter the boundaries of
State, there is no territorial integrity provided to States(depends on
whims and fancies of Union, i.e. Article 2). States do not have a
right to secede. Only territorial integrity of Union is provided-----
CASE :- Berubari Union ----- Presidential reference under A.
143--Indian territory ceded to Bangladesh.
Note :- In confederation, the units can move away. However, in
Federal system, the units' identity is not so distinct that they could
move away.
Union has the power to acquire territory---Explicitly stated in
Constitution.
Does Union have power to seize territory?
Yardstick 3 - Independence to have central authority? i.e. Is the
exercise of Central Authority equivalent to Federal Authority? Can
the Union exercise power can first exercise authority without the
ratification of the States?--Affirmative
Eg. GST Bill----Streamlining taxes ----Tax on Sales---Union can
also act with respect to it, however, ratification from States
required.
Eg. Income tax--Exclusive Union Subject (List 1)
Yardstick 4 - Amendments to Federal Constitution (Rigid)----
Neither affirmative nor negative----In India, there is 2
Constitutions, one of J & K, while the other is of India---Article
368---Usually rigid, not easily amendable ( A unitary constitution
is flexible )---The Indian Constitution is neither rigid, nor flexible.
Note :- Constitutional amendment is very simple in Unitary
Model. In Federal systems, an amendment to constitution is
possible without consent from each and every state. However, in
Confederate system, consent from each and every state is
required.\
Article 368--Second part---Entrenched provision---50 %
Ratification required.
Yardstick 5 --- Indestructible identity----Units being protected
from Union's encroachment?---Negative----Article 3 read with
Article 2 and Article 1.
Independent autonomy ? i.e. Can the Units act completely in
autonomy without the domain of Union? ---List II Article 248.
Are these subjects indestructible? i.e. Is it possible to swap the
subject through a constitutional amendment (for instance From list
II to list III)--
Reading of Article 1,2,3 & 4 - Units don't have any territorial
integrity.
Argument --- First schedule will stand amendment w.r.t. passing
bill under Article 4 and it will not be a constitutional amendment
acc. to Article 368-----Which means states don't have their
autonomous identities.
Note :- Union may legislate and administer a subject which is in
the exclusive domain of State---Article 249