Federal system is a government structure. In this the power is split collectively between the supreme governmental body and the subnational political bodies. Federalism is a tool for a country’s democratic governing process. It aims to strike a balance between the movements operating in favour of pooling the Center’s resources and those encouraging its dispersal in a variety of units such as States and Panchayats. Essentially, a federal constitution calls for a demarcation of executive roles and responsibilities between the Center and the States as defined by the constitutional laws.
The Constitution of India is not strictly ‘federal’ or simply ‘unitary.’ It can be called “quasi federal” though such a term is vague. The framers, when writing the Indian Constitution, wanted to give it a federal feel in view of India’s pluralistic characteristics. The federal structure is visible not just in the legislative area but also in the executive and administrative fields in the constitutional allocation of powers between the federation and the States. The coexistence of two governments, each with its own designated administration domain, inevitably includes the sharing of powers between these two authorities. This is the most basic aspect of a federal government whose creation is exclusively based on this concept is the separation of power.
LEGISLATIVE POWER
The allocation of legislative powers and responsibilities specifically categorizes into three lists: the Union List, the State List and the Concurrent List. Article 245(1) The Union List, which has 100 entries and is the largest. It includes defense, arms and ammunition, international policy, foreign trade, nuclear energy, treaties, war and peace, currencies, and the Constitution. Art.246(3) The State List with 61 items deals with, among other things, state law enforcement, judiciary, commerce and export, agriculture, land revenue, and various taxes. It can be seen that the Union list is very broad with wide range of powers, On the other hand, the legislative powers of the States, while not so large as those of the Centre, are important and closely reach the people. They need to keep law and order
Art. 246(2) The Concurrent List has52 items. The reasoning behind the Concurrent List is that such issues that occur that are neither of exclusive national interest nor of solely state or local concern. It includes preventive detention, contracts, economic and social planning, social security, education, labour welfare and electricity.
These three lists though very detailed it cannot be a sufficient excuse to remove the residual power clause from the Indian Constitution. Entry 97 in the Union register reads as follows: ” Any other matter not enumerated in the list II or List III including any tax not mentioned in either of those lists.” By Article 248 Parliament has sole power over residual powers.
In State of West Bengal and Ors. v. Committee for Protection of Democratic Rights. West Bengal and Ors.[1] the Court held that the concept of federal superiority laid down in Article 246 of the Constitution cannot be recourse to unless there is an irreconcilable substantive dispute between the entries in the Union and the State Lists. In Bhavesh Jayanti Lakhani v. State of Maharashtra.[2] In this case the Court held that the police powers of the State (Police including railway and village police) in respect of any offence committed in a State comes within the legislative competence of. the State.
CIRCUMSTANCE WHEN UNION CAN LEGISLATE STATE LIST
Parliament may legislate on any issue on the State List
- during the national emergency.
- When two or more State legislatures pass a resolution, asking Parliament to legislate on a subject in the State List
- If the Rajya Sabha decides that it is appropriate for the Center to legislate on a subject in the State List, during the rule of the President in a State,
DIVISION OF POWER IN EXECUTIVE
When it comes to executive powers under Articles 53(1) and 154(1), the Union is vested in the President. And of the States, lies with the Governors.
President retains his / her office for a five-year period. This five-year period starts from the date of his / her accession to the office. He can resign before that by submitting the letter of resignation to the country’s vice-president. Under the terms of Article 61, the president can also be impeached from his office. This occurs on grounds of breach of the Constitution.
Governor shall be named by the President of India and commands office at the President’s pleasure. Since the constitutional appointment is for a five-year term, the position may be gave up early. This is possible by tendering the resignation to the President. State usually has its own Governor; but it is also possible to nominate a popular Governor for two States as provided for in Article 153.
POWER OF PARDON AND DISSOLUTION OF LEGISLATURE
Article 72(1) The President holds the right to grant pardon, parole, reprieval, remission of punishment or suspension of sentences to any person convicted of an offense and sentenced by a court martial for an offense against any law relating to an issue to which the union’s executive power extends or where the sentence refers to a death sentence. Under article 161 governor also has the authority but the power is much narrow.
The President’s right to grant forgiveness applies only to certain situations. These are relating to matters on which the Federal Government has the power to make laws. The substantive effect of Article 72(1)(c)read with Article 72(3) is that the President’s ability to grant forgiveness has a much wider reach. Also, it applies to matters for which the State Government has the power to make laws, such that the President has the power to grant forgiveness.[3]
In accordance with Article 85, the Constitution empowers the President of India to dissolve the Lok Sabha. In compliance with Article 174 of the Constitution the Governor has the authority to dissolve the Legislative Assembly. However, no standard has been established in this regard either expressly in this clause.
[1] 2010 (3) SCJ 569.
[2] AIR (2009) 9 SCC 551.
[3] J.P. RAI, Exercise of Pardoning Power in India: Emerging Challenges, ISSN. 0972 – 8406 1 The NEHU Journal, Vol XII, No. 2, July – December 2014, pp. 1-26
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