Short essay on The Scheme of Division of Powers as per Indian Constitution

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Moving consideration of the Draft Constitution in the Constituent Assembly, Ambedkar said that the form of the Constitution was federal. “It establishes a dual polity with the Union at the Centre and the States at the periphery, each endowed with sovereign powers to be exercised in the field assigned to them respectively by the Constitution.”

The Union is not a League of States, united in a loose relationship, nor is the States the agencies of the Union, deriving powers from it. Both the Union and the States are created by the Constitution; both derive their respective authority from the Constitution. The one is not subordinate to the other in its own field; the authority of one is co­ordinate with that of the other.

Dealing with the criticism of over-centralisation in the Constitution, Ambedkar said:

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“A serious complaint is made on the ground that there is too much centralisation and that the States have been reduced to municipalities. It is clear that this view is not only an exaggeration but is also founded on a misunderstanding of what exactly the Constitution contrives to do.

“As to the relations between the Centre and States it is necessary to bear in mind the fundamental principle on which it rests. The basic principle of federalism is that the Legislative and Executive authority is partitioned between the Centre and the States not by any law to be made by the Centre but by the Constitution itself.

This is what the Constitution does. The States are in no way dependent upon the Centre for their legislative or executive authority. The States and the Centre is co-equal in this matter.

“It is difficult to see how such a Constitution can be called centralism. It may be that the Constitution assigns to the Centre a larger field for the operation of its legislative and executive authority than is to be found in any other federal Constitution. It may be that residuary powers are given to the Centre and not to the States. But these features do not form the essence of federalism.

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“The chief mark of federalism lies in the partition of the legislative and executive authority between the Centre and Units by the Constitution. This is the principle embodied in our Constitution. There can be no mistake about it. It is therefore wrong to say that the States have been placed under the Centre.

The Centre cannot by its own will alter the boundary of this partition. Nor can the judiciary. For as has been well said: ‘Courts may modify, they cannot replace. They can revise earlier interpretations as new arguments, new points of view are presented, and they can shift the dividing line in marginal cases.

But there are barriers they cannot pass, definite assignments of power they cannot re-allocate. They can give a broadening construction of existing powers, but they cannot assign to one authority the powers explicitly granted to another’.”

Ambedkar was supported in these views by his colleagues on the Drafting Committee and by others whose opinions carried weight and authority in the deliberations of the Assembly. Yet, the controversy continued.

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A large number of members still thought that the Centre was invested with excessive power and, in the process, the federal principle which was to form the very foundation of the States system under the Constitution was almost destroyed.

The controversy did not end even with the adoption of the Constitution. From the floor of the Assembly it migrated to a wider arena, among political scientists and constitutional lawyers both within and outside the country.

According to some, the Constitution is ‘quasi-federal’; it establishes a unitary State with subsidiary federal features rather than a federal State with subsidiary unitary features. Others are of opinion that the unitary features are so strong that the federal framework of the Constitution is nothing but a facade without the substance of federalism in it.

But there are others who think that the Constitution embodies the federal principle in such a substantial measure that it is truly a federal Constitution.

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These conflicting opinions arise from the conflicting ideas on federalism that prevails among constitutional theorists. Hence, the question whether the Constitution is federal or not cannot be satisfactorily answered without going into the meaning of federalism and the essential elements that constitutes a federal State.

Federalism in the modern age is a principle of reconciliation between two divergent tendencies, the widening range of common interests and the need for local autonomy.

This is why Lord Acton said: “Of all checks on democracy, federalism has been the most efficacious and the most congenial. The federal system limits and restrains the sovereign power by dividing it, and by assigning to the government only certain defined rights.”

The reconciliation that is established in a State between the individual self-sufficiency of the citizen and his allegiance to the State is, in a measure, federal in essence. Modem forms of federations arose either out of the imperfections or limitations of the large, unitary democracy or the defense and economic necessities of the small individual State.

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What is needed is neither complete independence nor total dependence but an interdependence that creates harmony, orderly progress and prosperity.

It looks almost contradictory in appearance, but it is the essence of federalism; and only federalism can provide such an effect. Unity, while allowing diversity, oneness while providing for division, is the outstanding characteristic of modern federalism.

It finds an institutional means whereby the solution of conflicts between social interests could be provided for, and the means remain the same in different parts of the world, however much they vary in detail to suit environment and circumstances.

When federalism is viewed in this broad sense, there is hardly any possibility for a controversy on the federal character of the Constitution. For, (1) there is a clear division of governmental power between the Central and State governments; (2) each government is independent of the other in its own field; and (3) the Constitution establishes an independent judiciary to settle the disputes between the Union and the States with respect to the division of powers.

This will become clear as we progress with the analysis of the federal provisions of the Constitution.

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