The members of the Drafting Committee of the Constituent Assembly of India called it federal. But there are jurists who dispute this title. It is, therefore, imperative to ascertain, what is a federal Constitution and what are its essential characteristics? However, the answer to this question is compounded by the fact that there is no agreed definition of a federal State and it is customary with scholars on the subject to start with the model of the United States, the oldest (1787) of all federal Constitutions in the world, and to exclude any system that does not conform to that model from the nomenclature of federation. But it is generally agreed that whether a State is federal or unitary is one of degrees and whether it is a federation or not depends upon the number of federal features it possesses.
A federation has well-established dual polity or dual Government viz., the Federal Government and the State Governments. The force of the Government is divided between the Federal and State Governments which are not subordinate to one another but co-ordinate bodies that are independent within their respective allotted spheres. Therefore, the existence of co-ordinate authorities independent of each other is the foundation of the Federal Principle. A Constitution which embodies a federal system is said to possess the following five characteristics :
- Distribution of Powers: An essential feature of federal Constitution is the distribution of powers between the Central Government and the Governments of the several units (provincial governments) forming the federation. Federation means the distribution of the power of the State among a number of co-ordinate bodies, each originating from and controlled by the Constitution.
- Supremacy of the Constitution: This means that the Constitution should be binding on the federal and State Governments. Neither of the two Governments should be in a position to override the provisions of the Constitution relating to the powers and status which each is to enjoy. This requirement is satisfied if the supremacy or overriding authority is accorded only to the provisions relating to the division of powers. Other provisions of the Constitution, which do not relate to the relationship between the Centre and the need not be supreme.
- Written Constitution: The Constitution must necessarily be a written document. IT will be practically impossible to maintain the supremacy of the Constitution, unless the terms of the Constitution have been reduced into writing.
- Rigidity: This feature is a corollary to the supremacy of the Constitution. Here rigidity does not mean that constitution is unamendable or not subject to change. It simply means that the power of amending the provisions of the Constitution which regulates the status and powers of the Federal and State Governments should not be confined exclusively either to the Federal or State Governments, but must be a joint act of both. As regards the provisions of the Constitution that are not concerned with the federal system there is no need to maintain the same rigidity.
- Independent and Impartial Authority of Courts: The legal supremacy of the constitution which is an essential feature of a federal state, makes it necessary that there must be an authority above both, the federal government and the component state governments to decide whether they are operating under the frame of the Constitution in desired manner. This aspect of essentials of a federal feature involves two connected matters. Firstly, there must be some authority, normally the courts of law to maintain the division of powers not only between the State Governments, but also between the Federal Government on one hand and the State Governments on the other. The courts of law are vested with power to declare laws made by the Federal or State Governments, ultra vires on the ground of excess of power. Secondly, to constitute a final Supreme Court which should not be dependent upon the Federal or State Governments and should be armed with the final authority to interpret the Constitution?
A perusal of the provisions of the Constitution of India reveals that the political system introduced by it possesses all the aforesaid essentials of a federal polity.
The Indian Constitution establishes a dual polity
The dual polity consists of the Union at the Centre and the States at the periphery, each endowed with powers to be exercised in the field assigned to them respectively, by the Constitution. The powers of the Union and the States are clearly demarcated. The Constitution is written and supreme. Enactments in excess of the powers of the Union or the State Legislatures are invalid. Moreover, an amendment which makes any changes in the status or powers of the Centre or the State Legislatures is invalid. Further, any amendment which makes changes in the status or powers of the Centre or the units is possible only with the concurrence of the Union and of a majority of the States. Finally, the Constitution establishes a Supreme Court to decide disputes between the Union and the States or between the States and to interpret finally the provisions of the Constitution.