CJI D Y Chandrachud: Indian federalism is a dialogue

India’s adoption of federalism was informed by the humanities discourse of Partition, and perceived secessionist threats faced by definite different parts of the state astatine the dawn of Independence. Resisting the proposition to insert the connection “federal”, B R Ambedkar stated that “what is important is that the usage of the connection ‘union’ is deliberate… due to the fact that it is indestructible”. However, it was wide that the Centre and the states were autarkic federating units successful their designated legislative spheres and that the states were not subordinate to the Centre.

We often presume that federalism is simply a revered law worth that indispensable beryllium protected astatine each costs. It mightiness astonishment galore if I told them that the rule of federalism was utilized arsenic 1 of the halfway arguments successful enactment of slavery successful the US. As opposed to this, the Indian Constitution dealt with favoritism successful a alternatively originative manner. The legislative competence of the Centre and states is prescribed by mode of demarcating subjects into 3 lists successful the Seventh Schedule. Essentially, the lists bash not reserve anti-discrimination and cardinal rights regulations wholly for either the states oregon the Centre.

Of the galore large things that the judgement of the 13-judge seat successful Kesavananda Bharti has fixed us, the astir salient is that determination are definite values that the Constitution espouses and that these values trump majoritarian will. It is specified a salient doctrine that immoderate national contiguous would proclaim that federalism is simply a basal diagnostic of the Constitution.

We often perceive ineligible scholars reason that the US Constitution is much national than unitary, portion the Indian Constitution is much unitary than federal. Or, that the Indian Constitution has a centralising tendency. What does this mean? The “centralising tendency” of the Indian Constitution, it is often argued, stems from 2 of its features — the exigency powers of the Union, and the residuary legislative powers vested successful the Union Parliament. This, I word arsenic the vice of over-simplification. There is nary denying that our Constitution does incorporate centralising features. However, the Constitution besides provides a balance. There is, for instance, a alternatively stringent process to amend law provisions which interaction the powers of the state. Similarly, the Constitution confers the powerfulness to assent to bills passed by authorities legislatures to the Governor. However, the provisions of the Constitution besides circumscribe the relation of the Governor to guarantee that the states are not rendered “subordinate” to the Union.

Federalism is not a monolithic concept. In 1977, the Supreme Court (SC) for the archetypal clip described the exemplary of federalism successful India arsenic predominantly “cooperative”. Cooperative federalism is simply a strategy of governance wherever the authorities and Central units enactment unneurotic to “iron out” the differences that originate successful governance to execute the communal extremity of development. In a judgement I authored successful 2022, I argued that it is not indispensable that “cooperation” betwixt the states and the Union is the lone mode to uphold national principles; it is indispensable to presumption Indian federalism arsenic a dialogue. It could either beryllium easy-going oregon it could origin friction betwixt the units. Both are arsenic important for federalism to flourish.

Another important (and unique) constituent to enactment astir the signifier of federalism successful India is what we person termed arsenic “asymmetric federalism”. This look indispensable beryllium understood astatine 2 levels — the independency of the states and the Union successful their respective sphere, and the unsocial and asymmetric narration that each authorities shares with the Union. In a federation arsenic divers arsenic ours, it is intolerable to enactment each the states successful a container and dainty them alike vis-a-vis the Union. Constitutional courts signifier the national strategy done interpretations of the organisation of powers and different manifestations of federalism.

To my mind, the Indian law jurisprudence connected federalism indispensable beryllium divided into 2 eras: The centripetal epoch and the centrifugal era. I word the epoch earlier the judgement of the SC successful S R Bommai v Union of India arsenic the centripetal era. Here, the Court adopted interpretations with a centripetal impact, that is, it had a centralising inclination which led to an accumulation of powerfulness with the Centre and distant from the federating states. I word the epoch aft the judgement successful Bommai arsenic the centrifugal era. In this period, the Court has opted for an mentation that has a centrifugal impact, that is, an mentation that enhances the autonomy of federating states. In Bommai, states, it was held, were not specified appendages of the Centre and the Court could not instrumentality a way that whittled down the powers of the states.

Let maine explicate the contributions of the Court successful ensuring antiauthoritarian governance done the rule of federalism with the assistance of a caller example. Article 200 of the

Constitution states that the Governor has 3 options erstwhile a Bill passed by the authorities legislature is presented for assent. The archetypal is that she tin assent to the Bill. The 2nd is that she tin withhold assent. The 3rd is that she whitethorn reserve the Bill for the information of the President. The proviso to the proviso states that the Governor whitethorn nonstop the Bill to the House with a connection requesting the House to reconsider the Bill. The question earlier a Bench headed by maine was connected the scope of the 2nd option. That is, whether the Governor tin indefinitely withhold assent, successful which lawsuit the Bill volition dice a “natural death”. We held that the 2nd enactment cannot beryllium work to confer a veto to the Governor, for that would erode the rule of federalism and typical governance. That a Governor tin withhold the assent to the Bill lone to nonstop it for reconsideration.

The bottommost enactment of the treatment is this: Our Constitution is simply a national one. Scholar Marc Galanter has argued that the Indian Constitution was a “radical readjustment of the relations betwixt groups: Old rights are abolished, caller rights are established”. What are these “new rights” contiguous and however does federalism signifier these are the questions we indispensable inquire ourselves. The Constitution was meant to beryllium a transformative document. Climate change, artificial intelligence, information privateness and cyber crimes transcend territorial boundaries, which formed the ground of national units. These caller challenges ill-fit the accepted moulds of Union and States subjects.

If federalism successful the years gone by was astir adjusting to governmental realities successful presumption of legislative powers, successful the years to come, federalism should beryllium evaluated based connected its quality to foster ideology and law ideals of equality, liberty, dignity and fraternity. States and the Union are some creatures of the Constitution. They indispensable enactment successful synergy, cooperation, and law deference to their legislative boundaries successful uncovering meaningful solutions to modern-day problems. Our quality to code these challenges is the litmus trial for our imperfect federalism and the framers’ religion successful it. I anticipation that we yet find these solutions successful practice and communal allegiance to the communal law goals of the federating units.

The writer is the Chief Justice of India.

Edited excerpts of the code delivered astatine the inaugural Loksatta lecture successful Mumbai connected October 26