Read Online India After Independence: 1947-2000 by Bipan Chandra - Free Book Online
Authors: Bipan Chandra
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Gandhi declared that ‘there shall be no limitation’ on the amending powers of parliament, and that no constitution amendment act could be ‘called in question in any court on any ground.’ But the Supreme Court in Minerva Mills vs. Union of India 5 reaffirmed the applicability of the doctrine of basic structure by holding that ‘judicial review’ is a basic feature which cannot be taken away even by amending the Constitution. The present position is that the Court can declare
ultra vires
any amendment to the Constitution if it believes that it would affect or alter any of the basic features of the Constitution. ‘Thus, substantive limitationfounded on the doctrine of “basic features” has been introduced into our Constitution by judicial innovation.’ 6
While there has been some difference of opinion among judges about the contents of the list of basic features, there is consensus on the doctrine of ‘basic features’ or ‘basic structure’, and it can be used to check any attempts to subvert the Constitution through parliamentary majorities.
Federal Structure or Unitary
The Indian Constitution does not fit into any rigid definition of federal or unitary. To quote Austin: 7
The political structure of the Indian Constitution is so unusual that it is impossible to describe it briefly. Characterizations such as ‘quasi-federal’ and ‘statutory decentralization’ are interesting, but not particularly illuminating. The members of the Assembly themselves refused to adhere to any theory or dogma about federalism. India had unique problems, they believed, problems that had not ‘confronted other federations in history.’ These could not be solved by recourse to theory because federalism was ‘not a definite concept’ and lacked a ‘stable meaning’. Therefore, Assembly members, drawing on the experience of the great federations like the United States, Canada, Switzerland, and Australia, pursued ‘the policy of pick and choose to see (what) would suit (them) best, (what) would suit the genius of the nation best . . . This process produced . . . a new kind of federalism to meet India’s peculiar needs.’
The Assembly was perhaps the first constituent body to embrace from the start what A.M. Birch and others have called ‘cooperative federalism’. It is characterized by increasing interdependence of federal and regional governments without destroying the principle of federalism. 8 (Interestingly, the concept of co-operative federalism was re-introduced into the political vocabulary by P. Chidambaram, when he was the Finance Minister in the United Front government in 1996-8.)
The decision of the Constituent Assembly to have a federal constitution with a strong Centre was occasioned also by the circumstances in which it was taken. A strong central government was necessary for handling the situation arising out of the communal riots that preceded and accompanied Partition, for meeting the food crisis, for settling the refugees, for maintaining national unity and for promoting social and economic development, which had been thwarted under colonial rule.
However, in the initial months of its existence, before Partition became an accepted fact, the Constituent Assembly did not express itself in favour of a strong central government. The Union Powers Committee of the Assembly, headed by Nehru, had in its first report provided for a very weak central government. But once the decision on Partition wastaken and announced on 3 June 1947, the Constituent Assembly considered itself free of the restraints imposed by the Cabinet Mission Plan of 1946, and moved quickly in the direction of a federation with a strong Centre.
Dr B.R. Ambedkar, while introducing the Draft Constitution, explained why the term ‘Union of States’ was preferred over ‘Federation of States’: 9
The Drafting Committee wanted to make it clear that though India was to be a federation, the federation was not the result of an agreement by
ultra vires
any amendment to the Constitution if it believes that it would affect or alter any of the basic features of the Constitution. ‘Thus, substantive limitationfounded on the doctrine of “basic features” has been introduced into our Constitution by judicial innovation.’ 6
While there has been some difference of opinion among judges about the contents of the list of basic features, there is consensus on the doctrine of ‘basic features’ or ‘basic structure’, and it can be used to check any attempts to subvert the Constitution through parliamentary majorities.
Federal Structure or Unitary
The Indian Constitution does not fit into any rigid definition of federal or unitary. To quote Austin: 7
The political structure of the Indian Constitution is so unusual that it is impossible to describe it briefly. Characterizations such as ‘quasi-federal’ and ‘statutory decentralization’ are interesting, but not particularly illuminating. The members of the Assembly themselves refused to adhere to any theory or dogma about federalism. India had unique problems, they believed, problems that had not ‘confronted other federations in history.’ These could not be solved by recourse to theory because federalism was ‘not a definite concept’ and lacked a ‘stable meaning’. Therefore, Assembly members, drawing on the experience of the great federations like the United States, Canada, Switzerland, and Australia, pursued ‘the policy of pick and choose to see (what) would suit (them) best, (what) would suit the genius of the nation best . . . This process produced . . . a new kind of federalism to meet India’s peculiar needs.’
The Assembly was perhaps the first constituent body to embrace from the start what A.M. Birch and others have called ‘cooperative federalism’. It is characterized by increasing interdependence of federal and regional governments without destroying the principle of federalism. 8 (Interestingly, the concept of co-operative federalism was re-introduced into the political vocabulary by P. Chidambaram, when he was the Finance Minister in the United Front government in 1996-8.)
The decision of the Constituent Assembly to have a federal constitution with a strong Centre was occasioned also by the circumstances in which it was taken. A strong central government was necessary for handling the situation arising out of the communal riots that preceded and accompanied Partition, for meeting the food crisis, for settling the refugees, for maintaining national unity and for promoting social and economic development, which had been thwarted under colonial rule.
However, in the initial months of its existence, before Partition became an accepted fact, the Constituent Assembly did not express itself in favour of a strong central government. The Union Powers Committee of the Assembly, headed by Nehru, had in its first report provided for a very weak central government. But once the decision on Partition wastaken and announced on 3 June 1947, the Constituent Assembly considered itself free of the restraints imposed by the Cabinet Mission Plan of 1946, and moved quickly in the direction of a federation with a strong Centre.
Dr B.R. Ambedkar, while introducing the Draft Constitution, explained why the term ‘Union of States’ was preferred over ‘Federation of States’: 9
The Drafting Committee wanted to make it clear that though India was to be a federation, the federation was not the result of an agreement by
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