Residuary Powers in a

Federal State


(Reader, The Andhra University, Waltair)

The subject of residuary powers in the proposed Indian Federation has become a subject of keen controversy. One of the now famous fourteen points of Mr. Jinnah requires the location of residuary authority in the provinces. There are many who advocate that it should be lodged at the centre. Sir Tej Bahadur Sapru, in the letter which he wrote to Pandit Malaviya just before his departure to attend the third Round Table Conference, has stated that on that question he held very strong views and he suggested that residuary powers should remain with the central government. The Allahabad Unity Conference proposed a rather complicated solution providing practically for two kinds of residuary powers to belong to the Indian or provincial governments, according to the relevancy and closeness of their connection with the subjects scheduled as being within the control of the provinces. This solution has some resemblance to the clauses in the Canadian Constitution which in a sense leave the residuary authority in local and provincial matters to the provinces and in national matters to the central government. It is also known that this question has become a source of acute differences of opinion at the Round Table Conference now in session, and that it had to be referred to a separate sub-committee for thorough discussion and report. As a considerable amount of importance is being attached by all schools of thought in our country to this subject, it is desirable that an attempt should be made to understand its true importance in a scheme of federal government.

Readers of this Journal need not be told that the fundamental characteristic of a federation is the distribution of the powers of government between a central authority and the several provincial authorities, each being supreme in the field allotted to it in the Constitutional document. In the sphere made over to them the provincial governments are co-ordinate with, and not subordinate to the central government, and it is not open to the latter to modify at its will and pleasure the powers of provincial governments as is the case in a unitary State. In consequence of this a province in a federal State enjoys a superior status and exercises independent jurisdiction in a field of its own. It is a question of primary importance what this field happens to be. The framing, therefore, of a constitution for a federal State has no more difficult subject to deal with than that of determining what powers should be granted to the central government and what should be granted to the provincial governments.

The manner in which the respective spheres of the central and provincial governments are delimited varies from one federal Constitution to another. In some Constitutions a list is given of the powers of the central government with the implication that all other powers not so enumerated–and therefore spoken of as residuary powers–are to be exercised by the provincial governments. This method has been adopted in the United States, Australia, Switzerland, the German Empire from 1871 to 1918, and the present German Republic. In all these States the central government possesses a given stock of powers and it cannot go beyond them unless the Constitution itself is amended; and all residuary authority is with the provinces. In some other Constitutions, as for example Canada, a list is given of the powers of the provincial governments and all the remaining powers–not included in the list and therefore residuary–are with the central government to a considerable extent. The Constitution of South Africa–though not technically a pure federal State–follows in this respect the example of Canada. Now that we are engaged in framing a federal Constitution for our country we have to settle whether we shall, as in Canada, draw up a list of the powers of the provincial governments leaving the residuary authority with the centre; or make out a list of the powers of the central government as in the United States and the German Republic leaving the residuary authority with the provinces.

To answer this question it is necessary for us to enquire whether any important political principle is involved in the adoption of the one or the other alternative.

Many people seem to be under the impression that the government in which the residuary authority is lodged will be the stronger and relatively the more powerfu1 government, while that which possesses only a number of enumerated powers will be a less powerful one and will command a smaller amount of respect at the hands of the citizens. The large importance that has come to be attached to this subject, is explicable only on a hypothesis like this. The fathers of the American, the Canadian, and the Australian Constitutions were also influenced by a view like this. So jealous of their sovereignty were the thirteen colonies that constituted themselves into the United States, that they felt they could not maintain that high political status unless the federal government they created was made a government with a number of enumerated powers only. The Canadian statesmen felt equally strongly that, unless the residuary authority was lodged with the central government, the Dominion of Canada would not possess that strength and unity which they thought was necessary for their national existence. From this it is often argued that federal States, which must be strong at the centre, should provide for the residuary authority at the centre, while those which favour the ideal of considerable autonomy and dignified status for the provinces must have the residuary authority located in the provincial governments.

It is a well-known fact that our Muslim brethren are advocates of provincial autonomy, as that would give them the power which they think it is their due in provinces like the Punjab, Bengal, North-West Frontier, etc. where they are in a majority; and they are also staunch advocates of residuary authority in the provinces. There are others who think that most of our sufferings in the past were the result of the existence of semi-independent provincial governments, that these contributed to the weakness and the powerlessness of the central government, that the greatest blessing of British rule is the establishment of a strong central government and that the future of the country depends entirely on the preservation of this strength at the centre against the numerous forces of disintegration that are always liable to raise their heads in this extensive land of ours. From their standpoint, what is necessary is the grant of a few enumerated powers to the provinces and the location of all residuary authority in the central government.

Is there really an intimate connection between the location of residuary authority and the strength of the particular government–provincial or central–in which it is located? A study of the history of the federal States and the actual working of their governments will lead us to the conclusion that there is no such intimate connection and that we are labouring under a misconception when we attribute to the location of residuary authority an importance which it does not inherently possess. As a matter of fact the relative strength of the central and provincial governments depends on the actual powers enumerated and on the general loyalty and devotion of the people to the one or the other government than on the location of residual powers. In the United States the powers of the central government are only enumerated powers and, as has been remarked above, this was done with a view to retain the importance of the part-States. But this has not prevented the central government from exercising larger and larger powers as circumstances necessitated and becoming the real centre of political life in that country. It will make this article too lengthy if a detailed reference is to be made to all the methods that have been available in that country for extending the powers of the central government through judicial interpretations and the free use of the doctrine of implied powers based on the last clause in Section VIII of Article I of the Constitution. Germany affords another glaring example of a federal State in which residuary authority is in the provinces with the central government enjoying powers so numerous, extensive, and extraordinary that for all purposes it may be said to be as powerful as the central government in a unitary State. This is because of the central government having been granted a very large number of powers.

The fact of the matter, therefore, is not so much the location of residuary authority as the amount of that authority. Many seem to think that the totality of governmental power to be exercised in a State is something infinite and that however much might be taken away from it to be handed over to the provincial or the central government, the residue that remains is still infinite and will therefore add to the dignity and importance of the government enjoying it. But governmental power has only a limited content though it cannot be precisely measured, and if the powers made over by enumeration are sufficiently large, what remains as residue will only be slight and the government in which it is located cannot possess that degree of sovereignty which is regarded with misgiving by some and with pride by others among those that seem to make a fetish of this question.

If constitutionalists of the type of Dr. Sapru stand for a strong government at the centre, they can effectively secure their object by giving to the central government all those specific powers that will contribute to its strength and making the list of enumerated powers as exhaustive as possible. They have now before them a long history of the working of federations commencing with that of the United States and coming down to the German Reich. From an analysis of the several federal constitutions they can see that it has been felt with increasing intensity that the advantages of a federal union will be at their maximum when more and more functions are made to devolve on the central government, that the functions of the Canadian central government–which was established eighty years after the formation of the United States–are more numerous than those of the central government in the U. S. A., that the enumerated powers of the Commonwealth Government of Australia are greater than those in Canada, that those of the present German Republic are still more numerous, and that all this has been the inevitable outcome of those universal changes through which the economic and social conditions of the world have been passing ever since the foundation of the United States. If with an insight into our national requirements of the present and of the calculable future the builders of our Constitution allot to the central government all those particular powers in the field of defence, protection, industrial organisation, transport, etc., which are necessary for its strength, efficiency and effectiveness, there will be no danger of disintegration even if the residuary authority is kept with the provinces. The powers of the centre, as enumerated in the Constitution of the German Reich, may be taken as the basis. It is because the list has been made very exhaustive in Germany and because the distinction between normal powers and emergency powers has not been lost sight of, it has become possible for the central government of Germany to establish its own dictatorship in a big province like Prussia even though the residuary authority is in Prussia under the present Constitution.

Other points worthy of consideration in this connection are the need for introducing into the Constitution clauses similar to those that are found in Australia and South Africa by which the provinces are enabled to transfer to the central government departments of provincial administration or the right to make laws on purely provincial subjects, if the provincial governments feel that such transfer would be of advantage to them and to the nation at large. As in the Constitution of Germany provision may be made in our Constitution for the central government exercising what are known as normative powers under which it can lay down standards for the guidance of provincial government in the field of purely provincial legislation. These features of the Australian and German Constitutions which locate residuary authority in the provinces, show how the possible dangers, if any, of such location may be mitigated. The system of "Federal Aid" has enabled the central government in the U. S. A. to gradually extend the scope of its control and supervision into purely provincial fields.

Above all, the process of amending the Constitution should be made simple enough so that changes in the distribution of powers that might be suggested by subsequent experience might be easily incorporated into the Constitution. Any difficulty that has been found in the matter of assuming new powers by the central government in the U. S. A., has been the result of the complicated procedure to be gone through in amending the Constitution and not of the residuary authority being placed in the provinces. Here also the Constitution of the German Reich will be a good model to follow.

That, under the peculiar conditions in which we are placed, our statesmen should concentrate attention on solutions on the above lines and not so much on the location of residuary authority, will become clear if we remember that we have to bring the Indian States also into our federation. The States are now enjoying a good deal of semi-sovereign authority. They are not mere administrative divisions like the provinces in British India deriving whatever authority they have from the central government. To reduce them to the position of provinces with only enumerated powers is not a practicable proposition. Sentiment is a powerful factor to reckon with at all times; and in the Indian States sentiment will be in favour of residuary authority being located in them. It is also a well-known fact that the lodging of residuary authority at the centre in the Dominion of Canada was possible mainly because the Canadian federation grew out of a previous unitary Constitution and the two principal provinces–Ontario and Quebec–did not, on entering the federation, lose any of the powers they formerly enjoyed and therefore easily reconciled themselves to residuary authority being retained at the centre. In the U. S. A., Australia, and Germany the units that were federated were, like the Indian States, autonomous before federation and could, with justification, insist on retaining residuary authority. Federation will raise the status of provinces in British India even if the residuary authority is kept at the centre. They will have no legitimate cause of complaint that their position will under such a scheme be worse than what it is now. Not so in respect of the Indian States. To bring them in they have to be conceded the enjoyment of residuary authority. Under these circumstances only two alternatives are open. One is an Indian Federation with residuary authority in the provinces and States; the other is a federation with the centre enjoying residuary authority in relation to the provinces but only specified powers in relation to the States. Dr. Sapru seems to have some such view, as can be seen from his letter to Pandit Malaviya. But a distinction like this would create inequalities of status among the component parts of the federation and introduce numerous complications into its working so that on calm consideration we will have no choice left except to accept the first alternative.

It may be said that all this is to ignore the Unity Pact arrived at by the Allahabad Conference which provides for scheduling the powers of the provinces. But it is to be noted that the Indian States are not a party to that pact, and from what we know of the currents of thought among the Indian Princes and their ministers it may be asserted that they may not agree to such a clause. And it has been shown above that there is no incompatibility between a strong central government and residuary powers in the part-units. Even if British Indian leaders succeed in persuading the States to agree to the location of residuary authority at the centre, the cause of a strong central government cannot be won unless the schedule of provincial powers is carefully drawn. Much caution is required to see that, to satisfy local sentiment and patriotism, powers that ought to be retained at the centre are not transferred to the parts, especially in matters connected with industry, transport, agriculture, and education.

To the criticism that, however careful we may be in drawing a schedule of powers, it will not be possible for us to make provision for all future contingencies and the better course will be to fight for the location of residuary authority at the centre, the reply that has to be given is that no Constitution will enable a country to escape from the need to face risks in the future and that wisdom consists not in trying to provide solutions for all future difficulties–for it is an impossible task–but in facing boldly and squarely the situation as it now is and as it is likely to develop in the near future. It is true that we should not by our short-sightedness create difficulties for our descendants a century or two centuries hence, but this ought not to lead us to the error of thinking that we can, with our limited vision and experience, solve the problems of the future generations of our people. If we proceed to our task with this faith in the capacity of the later generations of our countrymen, our work at present will be simpler and more effective.