No Right to Life

No... this article doesn’t refer to the Right to Life that is guaranteed to each and every person in India, under article 21 of the Constitution of the Republic of India. On the contrary, it refers to the Right to life... or rather, put in better terms, the Right to Existence of the various states of the Union of India, under the federal structure proclaimed by the makers of our Constitution!!

 The form of the Indian Constitution is supposedly Federal in nature. 

'The essential characteristics of a Federal Constitution... are present in the Indian Constitution.'

------ Page A-30 of Constitution of India by V.N. Shukla

According to Professor V.N. Shukla, '... the nature of our Constitution is Federal and that none of the terms of the Constitution violate the essentials of a federal polity.'

------ Page A-33 of Constitution of India by V.N. Shukla

In the case State of West Bengal v. Union of India, AIR 1963 SC 1241, Justice Subba Rao, in his dissent, had argued strongly treating the Indian Constitution as Basically Federal.

However, some scholar/institutions hesitate to characterise the Indian Constitution as truly federal because according to them, in certain circumstances the Constitution empowers the Centre to interfere in the state matters and thus places the states in a subordinate position which violates the Federal Principle.

For example, in the above mentioned case, i.e. State of West Bengal v. Union of India, the Supreme Court had held by majority, led by Chief Justice Sinha, that the Constitution is not truly federal.

Professor M.P. Singh, through his writing in M.P. Singh: Indian Federalism: Structure and Issues, lays down that he does not accept the stand that the Constitution of India is federal in the sense in which the known federal constitutions are. He follows somewhat of a similar position as has been taken by the Supreme Court, that the Constitution has some federal features but it does not fully accord with any established model of federalism.

There is also, the existence of such views, which question whether the Constitution of India can be said to be a federal Constitution at all ? They are, at best, amenable to the opinion that the Constitution is 'quasi-federal' or 'unitary with federal features' at best.

According to K.C. Wheare, ‘the specific provisions on the basis of which it is asserted that the fundamental postulate of a federal polity that the Central and State Governments functioning under it are coordinate authorities, each independent within its own sphere, is so greatly modified in the relationship between the Union and the State under the Indian Constitution, that the Indian Constitution cannot be called a federal Constitution. Wheare holds that the Constitution establishes a system of Government which is at the most ‘quasi-federal’, almost devolutionary in character, a Unitary State with subsidiary federal features rather than a federal state with subsidiary unitary features.’

------ K.C. Wheare: India’s New Constitution Analysed.48 All LJ 21

A similar view has been put forth by Professor P.K.Tripathi in Federalism: The reality and the Myth, 3J. Bar Council of India,251 (1974).

However, all such evaluations of the degree of federalism enshrined within the Constitution of India has been generally made with reference to the emergency related provisions that have been laid down in it, emergency being such a period, when the normal distribution of power between the Centre and the States undergo a vital change. The Parliament gets empowered to make laws with respect to any matter enumerated in the State List and it also gets empowered to give directions to any State as to the manner in which the State’s executive power is to be exercised. Moreover, Article 356 is cited by the detractors of the view that the Indian Constitution is a federal one, as an example wherein the States are shown to be in a subordinate position to the Centre. Under this Article, if the President is satisfied that the Government of a State cannot be carried on in accordance with the provisions of the Constitution, then he can dismiss the State Ministry and dissolve the Legislature and assume all functions of the State.

It is alleged by the detractors that these provisions enable the Union Parliament to convert the Union into a unitary State, which vitally affects the federal character of the Indian Constitution.

Along with the above mentioned provisions, another provision of the Indian Constitution, which is generally overlooked while discussing the character of the Constitution, can be cited to support the view that not only does the Constitution fail to be ‘truly federal’ in character, but it also goes very close to being a ‘unitary’ Constitution having certain ‘subsidiary federal characters’, in reality.

The provision being talked about in the above paragraph is Article 3 of the Constitution of the Republic of India. Article 3 of the Constitution of India deals with the ‘Formation of new States and alteration of areas, boundaries or names of existing States’.

Quote the section:-

The Indian Constitution, vide Article 3, has empowered the Parliament of India to alter the boundary and/or name of any State/States arbitrarily and unilaterally. In order to do any of the above mentioned work, a Bill to this effect must be compulsorily introduced in the Parliament. The Bill thus introduced, must satisfy at least two conditions.

1. The concerned Bill has to be introduced in either House of the Parliament, only on the recommendation of the President, and

2. If the Bill affects the area, boundaries or name of any State, then the President is required under Article 3, to refer the Bill to the Legislative Assembly/Assemblies of the concerned State/States, so that they can express their views regarding the Bill. The President is compulsorily required to specify in the reference, the period within which the concerned State Legislative Assembly/ Assemblies are supposed to express their views regarding he Bill introduced in the Parliament, under Article 3. The period so specified by the President can be extended by him, for such time as he may deem fit. However, if the opinion of the concerned State Legislature/Legislatures is/are not received within the specified or extended time, then the second condition shall automatically stand fulfilled.Thus, the Bill may be introduced in the Parliament even though the views of the concerned State/States have not been obtained by the President.

Now, what if the concerned State/ States expresses its/their views within the specified time and such views go against the proposal contained in the Bill? Nothing… nothing at all happens. The Parliament can still go ahead with the Bill and pass it, to make it into a law, against the wishes of the State Legislature/Legislatures. It was held in Babulal Parate v. State of Bombay, AIR 1960, SC 51, that if the State Legislature expresses its views within the time so specified and extended, the Parliament is not bound to accept or act upon the views of the State Legislature. It was further stated in the above mentioned case, that a fresh reference to the State Legislature is not necessary for an amendment of the Bill, if the amendment is proposed and accepted in accordance with the rules of procedure of Parliament and is germane to the subject-matter of the original proposal or is not a direct negation of it. The same was upheld in re, Berubari Union, AIR 1960 SC 858 at p. 860, wherein it was stated that it is not necessary to make a fresh reference to the State Legislature every time an amendment to the Bill is proposed and accepted.

Hence, it can clearly be understood from above that it is totally on the whims and fancies of the Centre, that the existence of a State of the Union depends. That the States do not have any right to existence and is subject to the sweet will of the Central Government, for their existence!! Thus, in accordance with the provisions of Article 3 of the Constitution, the Parliament may form a new State or alter the boundaries, name etc. of the existing ones and thereby change the political map of India vide a simple majority in the Parliament and by ordinary legislative process. This Article is merely held to be an example of the flexibility of the Indian Constitution by the proponents of the view that the Constitution is majorly federal in character. But the detractors may pretty well point out that it may be termed as a provision that actually hits the federalism present in the Constitution, where it hurts the most, i.e. by gifting the very life line of the States to the Centre, thereby making their subjugation and subordination at the hands of the Union Government that much more blatant and complete.