India: Federal or Unitary?


THE question arises on the threshold of an inquiry into the working of the Government to be introduced in India—whether the Indian State should be Federal or Unitary in its constitution. When Lord Chelmsford and Edwin Montagu set about the task of framing a transitory scheme of responsible Government in India, the problem did not require immediate attention or solution; nor does it appear from a persual of the voluminous literature on the constitutional charges of 1919, that the constitutional principles on which the new machinery of administration were to be based were considered or thought of. The authorities in England and in India had to devise some mode of carrying out the promise made in the British Parliament in August 1917; and the dyarchical scheme propounded by Mr. Lionel Curtis was readily accepted, as offering the only method of redeeming a pledge, without disregarding its qualifications. The further difficulties were left to be considered by the Parliamentary Committee, which was to function at the end of ten years. The parting of the ways has now been reached; and it were well to make an attempt to settle the principles on which the Instrument of Government is to be based, instead of merely seeking palliatives to suit momentary exigencies.

The existing constitution of the Government of India is undoubtedly unitary in nature. The Preamble to the Government of India Act states that the sovereignty over the Indian people vests in the Parliament of Great Britain "upon whom responsibility lies for the welfare and advancement of the Indian peoples". Section 2 of the Act declares that "the Secretary of State has, and performs, all such or the like powers and duties relating to the Government or the revenues of India as if the Government of India Act of 1858 had not been passed . . .and in particular, the Secretary of State may . . . superintend, direct, and I control all acts, operations and concerns which relate to the Government or revenues of India". Section 33 of the Act declares that, subject to the authority of the Secretary of State, the superintendence, control, and direction of the Civil, and Military Government of India is vested in the Governor-General in Council. Thus the Secretary of State and the Government of India, have been constituted the media through which the sovereignty of Parliament is to be exercised over the Indian people. It is true that sections 19 a of the Act and 45 a, provide for the respective devolution of the powers of the Secretary of State and the Governor-General in Council, but these are provisions of administrative convenience rather than of constitutional abrogation of powers. The portion of the Preamble which states that "concurrently with the gradual development of self-governing institutions in the provinces of India, it is expedient to give to the provinces, in provincial matters, the largest measure of independence of the Government of India which is compatible with the due discharge by the Government of India of its responsibilities" does not carry the matter further. The devolution of sovereign authority is made contingent on the proper administration of the Transferred Subjects; and it is within the knowledge of those familiar with the working of Dyarchy in the last ten years, that occasions have arisen when these departments had to be resumed by the Governor of the province and administered by him. Though, in some subjects, the provinces have been given some acknowledged authority of their own, this does not detract from the unitary basis of the existing constitution.

Now, has there been anything in the past history of India to justify the introduction of a Federal type of Government? Such constitutions are brought into being owing to the imperious necessities of protection against war or aggressive neighbours, when a number of small and contiguous States coalesce together for a common purpose. Taking India as a political unit, there have been in the past numberless States, based on no definite principle of linguistic or political or administrative affinities. These groups have been ever changing in size and area according to the Course of events. Twice indeed, in .her history, had India anything approaching the authority and power of the existing Government-once during the reign of Asoka, and later during the reign of the Moghul Emperors. The reign of Asoka had the effect of welding together the numerous States and Kingdoms then in existence; but this was only a passing phase. The Moghul Emperors lost their Empire, by the existence of provincial satraps, who disregarded the authority of the Central Government and "began to beat the drum of independence". The lessons revealed in the long course of Indian History constitute a clear warning against strewing the country with numerous provinces, acting on their own authority, held together only by the feeble tie of an effete central authority. Nor on the other hand, is there any basis for the view that India is a mere geographical expression and any attempt to frame a constitution on a non-federal basis is bound to fail. Beneath the apparent diversities, there is an unity, not merely cultural, throughout the country; and discerning Englishmen have not failed to perceive it. But this unity is always liable to be endangered by the overpowering centrifugal forces, which have to be kept in stern check. When the East India Company acquired territories in India, more or less artificial provinces had been formed, and in order to knit them together closely and prevent their disintegration, it was essential that a powerful central authority should be established. A bird's-eye view of the circumstances in which Federal Governments came into being in other parts of the world and an examination of their powers would throw some light on this question.

We will first turn our attention to the United States of America, where out of sheer necessity, the thirteen Colonies then in existence had to meet together to form a mutual combination against the authority and power sought to be exercised by Great Britain. It is significant that earlier attempts to bring about a coalition had failed. Only the presence of the enemy at the door made separate existence impossible. The master-spirit of the constitution, Alexander Hamilton devised a scheme of federal administration. The Constitution declared that the sovereign authority vested in the American people; and the Federal authority was vested with the bare minimum of power, essential for the discharge of its duties. All powers, except those expressly vested by statute in the central authority, were left in the hands of the states. The individual states were not even pledged to remain perpetually within the Union. The President of the United States was made the Supreme, Federal Executive authority, deriving his power direct, from the people. The Supreme Court of the United States was invested with the authority to interpret the constitution, to prevent the component parts from encroaching on the jurisdiction of one another. In fact, centrifugal tendencies exhibited themselves often in the course of American history; and the rebellion of the southern states shook the federal authority to its very foundations, during the period of the civil war. Sometimes, the judgements of the Supreme Federal Court could not be enforced, as when President Johnson challenged Chief Justice Marshall to carry out his judgement if he could. But the constitution has weathered all the storms and is now secure against enemies from within or without. It is the effective sanction of a powerful public opinion in favour of the Union, that forms the support of the American constitution. In fact, the American federal system points to the necessity of public spirit and homogeneous public opinion among the; citizens of a federal state.

The more recent Australian constitution is also of the Federal type. A number of scattered governments and colonies in a big continent—New South Wales, Victoria, South Australia, Queensland, Tasmania etc.,—isolated from other component parts of the Empire and faced with the contingency of war, "humbly relying on the blessing of Almighty God, agreed to unite in one indissoluble Federal Commonwealth, under the Crown of the United Kingdom of Great Britain and Ireland and under the Constitution hereby established". The people of the Commonwealth in whom the political sovereignty is vested, distribute their powers between the State Legislatures and the Australian Parliament. There is, as in America, the Supreme Court, which oftentimes is called upon to decide questions relating to the Constitutional status of the Commonwealth and the States. The legislature approximates to the British type. Here again we find a sense of common danger bringing together a number of distinctive states reinforced by a sound public opinion.

The next constitution to which a very brief reference may be made is that of Canada. There, under the British North America Act of 1867, the provinces of Quebec, Ontario, Nova Scotia and New Brunswick, together formed the Dominion of Canada. In view of the striking local characteristics and the great division of interests between the French and the British populations, it was found essential to depart from the British constitution on which it was to be modelled, in that it was made of a federal character. A clear division between the Provincial Councils and the Canadian Parliament was made in respect of functions. The Federal authority was made superior to the Province, and together with Parliament, it has full authority over Canada, except where it is restricted in favour of the Provinces by statutory provisions. The judiciary plays the same part as in the other federal constitutions.

Turning next to Switzerland, we find that twenty cantons, intensely jealous of their powers and authority, united in a federation. As in America, the cantons are made sovereign, in so far as their sovereignty is not limited by the Federal constitution, and as such they exercise all the rights not explicitly delegated to the Federal Power. The Federal Council, the Federal Assembly, and the Federal Tribunal, form the component parts of the Central authority. All suits between the confederation and the cantons, and all matters of public law are decided by the Federal Tribunal.

It will be apparent, thus, that federal constitutions are the outcome of particular circumstances, and have certain features in common. These features, as enumerated by Sir Frederick Whyte, are:

  1. The constitution itself appears in the form of a written Statute, supreme over all other instruments of government, and subject usually to a process of amendment more elaborate and deliberate than the enactment of ordinary law.
  2. The constitution assigns to the component parts of the federation, federal and provincial, specific functions in legislation, in judicial competence, and executive action.
  3. The constitution separates these spheres in such a manner as to permit the federal power and the provincial power respectively, the completest freedom of action, each in its allotted area, including direct contact by the Government with the individual citizens in respect of its legitimate functions.
  4. The constitution assigns the duty of interpreting its provisions to courts of justice, usually a Federal Supreme Court. It may further be added that Federal Governments are the outcome of a coalition of distinctive units and are supported, apart from constitutional forms, by a virile public opinion.

Turning to India, we have here no distinctive units confronted by a common foe. The provinces in India, except in the possible instance of Bengal, are artificial administrative creations of the British Government. In a huge country, such provinces are essential for the proper discharge by the government of its duties. Nor does the attempt to create linguistic divisions solve the difficulty. The so-called linguistic provinces have no roots in the past and are bound to be as artificial as the existing system. The so-called racial divisions again, do not throw light on the question. Such racial divisions do not correspond to the provincial units, but permeate every province in the country. Again, there is a total lack of the instructed public spirit and the alert public opinion which, in federal states, form an adequate protection against disruptive forces. Half-a-century of reslute Central Government has been found necessary hold together India as a whole and give a concrete reality to the spiritual yearnings, which have transfigured the country into a motherland. The forces of disruption, of disintegration, of communalism, have only been held in check for the moment. The conditions pre-requisite for the establishment of a Federal State are totally lacking here. Such a State is necessarily weaker than one of an unitary type and also possesses an executive, irremoveable for the time being, and consequently, having only remote responsibility to the people. The overriding authority of Parliament, a conspicuous feature of the British constitution, is discounted by the distribution of powers between component parts held in check by a powerful judiciary. The tendency for the Indian provinces in a Federal State will be to convert the courts into an arena for fighting with one another, thereby bringing the sovereign power into contempt and weakening the centripetal forces. The doctrine of ultra vires might lead the component parts to indulge in endless litigation, making the Courts the theatre of their destructive activities. The defiance of the central executive which such proceedings involve is sure to produce harmful consequences. Nor is the rigid division of functions, characteristic of a federal constitution, a desirable feature for adoption here; and concurrent jurisdictions are equally dangerous features. Lord Selborne in his speech in the House of Lords, on the Reform Bill of 1919, observed that he raised the question, whether the parliament of India was sovereign as regards the provincial legislatures. The answer was "No". "What happens if a provincial act is inconsistent with an All-India Act?" The answer was that the case had never arisen. The question might never arise in an unitary state with a Sovereign Central Legislature.

There are two other difficulties in India. India is a poor country possessing almost mediaeval resources. The material background for costly constitutional edifices is wanting here. A Federal system is infinitely more expensive than an unitary government. The multiplied apparatus of federal administration, with numerous bodies, great and small, functioning sometimes in unison, oftentimes in collision with one another, add to the cost of the administration. It is laid down in one of the constitutional schemes framed under the Congress mandate that a Federal system is not more expensive. This ipse dixit is unsupported by arguments or reference to facts. The second difficulty is the existence of a large number of Native States. These States considerably vary from one another and form a striking contrast to the existing provincial administrations. To fit them in to a scheme of Federation, is an almost impossible j task. They are sure to constitute a violent bone of contention between the Central Federal authority and the provincial Federal units, as regards the power and jurisdiction to be exercised over them. In this clash, the authority of Government is sure to suffer and defiance of Federal power will be fostered on the part of the Native States. The central government in an unitary system will alone be able to deal with the problems of the Native States, adequately and efficiently.

It does not of course follow that an unitary India will not have its provinces. To suit administrative convenience or satisfy linguistic aspirations, India may have as many provinces as may be desirable. But it must be distinctly understood that such provinces derive their authority only from the central administration. They will approximate to the position which the districts bear towards the provincial executives. Meanwhile, the country requires to be warned against deceptive expressions like 'provincial autonomy'. In so far as such an expression means merely the devolution of power from the central administration into provincial hands, no constitutional progress is achieved thereby. Responsible government, is not and cannot be connoted by such a term as 'provincial autonomy'.