There are two commonly observed trends of federalism across countries.
Federalism is primarily founded on the principle of "competitive federalism
viewed in countries such as the United States, Canada and Australia, which
suggests that there is much competition between central and national
The notion of federalism has, however, evolved over time to
'cooperative federalism,' and in the face of such considerations as the rise in
warlike conditions, the growing importance of a welfare state and improvements
in transportation and connectivity, etc., all governments acknowledged their
In the modern world, the concept of 'cooperative federalism'
increasingly adopted by the nations. However, this concept has been incorporated
with respect to mutual cooperation with the adoption of a centralized trend.
This means that there is a division of powers between the central and state
governments with a more powerful central authority.
This is because there are
some issues that can be handled best by the national government, while the other
issues can be handled better by the regional governments who can well handle the
issues of local interest. However, a strong government at the Centre does
not imply weakness of the state governments rather the state governments work as
administrative agents for carrying out the policies of the Centre. This
approach will be addressed in greater detail in India, especially with regard to
the ability of states to question the validity of central laws with regard to
the provisions of the Indian Constitution.
Nature of Indian Federalism
The India Constitution introduces the concept that the centre has greater rights
than the states of the country as 'cooperative federalism'. Therefore, "Indian
federalism has been called quasi federal or unitary with federal principles and
thus, has not been prevented from being predominantly federal in nature". The
Indian Constitution separates the regions to be governed separately by the
provincial and central legislatures.
In this respect, a Union List (List 1), a State List (List 2) and a Competition
List (List 3) set out under The Seventh Schedule of the Constitution
specifically differentiate between the issues addressed by the legislative
processes of the two tiers of government. In this respect, the federal and state
governments have sole right to legislate on subjects referred to in Schedule 7
List 1 and List 2 respectively. Furthermore, List 3 provides the Center and the
States with authority to legislate in certain respects.
However, the center's
rule will prevail in the event of any differences between the two levels of
government. Pursuant to Article 246 of the Indian Constitution, the right to
make laws on issues specified in Schedule 7 has been accorded.
The Union Government has the sole right to exercise its powers under Article
246(1) of the Constitution of India in the fields of defence, international
affairs, citizenship, railways, airways, aircraft, currency, among others. It
can also clearly imply that the central administration alone has the authority
to regulate these matters. There is no right of state governments to challenge
power of the central government.
Moreover, it is compulsory for States to respect laws adopted by the central
legislature under Article 256 of the Indian Constitution. Which means that the
conduct of States refusing to be bound by central laws does not come under the
powers conferred on them by the Indian Constitution. This ensures that States
are bound by central rules and have no legislative authority to refuse them.
That refuses the State governments the right, before the courts rule that the
central law is applied, to by means of a resolution or a decree calling it
As a result, the States do not have the right to challenge the centre in its
law-making procedure considering the separation of competency between the
central and state governments. It is contradictory to the definition of
federalism enshrined in Article 246. In such a case, it is only the initial suit
referred to in Article 131 of the Indian Constitution before the Supreme Court
of India that is required before States to appeal the laws passed by it. The
following parts of the project will discuss this.
Analysis of Article 131 of the Constitution
In the way that the people may resolve it in the event of violation of their
rights, the Supreme Court shall be the guardian of the Indian Constitution.
Citizens can appeal to the Supreme Court in writing, or Article 226, to any High
Court for the restitution of their rights pursuant to Article 32 of the
Constitution of India. Likewise, in the event of a violation of all law, states
still have the authority to approach the Supreme Court.
Article 131 can be
invoked in this context when a conflict exists between the central and state
governments. It grants the Supreme Court initial and exclusive competence to
address those discrepancies.
"Original jurisdiction means that the Supreme Court has the power to hear the
merits of the disputes in the first instance. Further, the phrase 'exclusive
jurisdiction' means that the Supreme Court is the sole source of authority that
has the power to handle the disputes between the central and state governments.
No other court or tribunal has the power to do so". "However, there are
certain requirements enshrined under Article 131 of the Constitution of India
that need to be met. These requirements are-
- The dispute must be between the centre and the states or between two or
more states, and
- The dispute must be involving a legal issue".
Considering these aforementioned conditions, one of the most important
requirements relates to the fact that the Supreme Court takes up any dispute
between the centre and the states only when there is a question of law or fact
on the basis of the extent of the legal rights involved. The competence of
the Supreme Court may then be drawn only if any conflict between the Center and
the State is breached by the law.
The word legal right has been described as an interest recognised and secured by
the rule of lawfulness by eminent scholar Salmond, which is an interest violated
as a legal mistake for those whose interest it is and whose respect is a legal
obligation. Renowned jurist Holland also described the statute when he
claimed that 'if irrespective of his having, or not having, either the right, or
moral right on his side, the power of the State will protect him in so carrying
out his wishes, and will compel such acts or forbearance on the part of other
people as may be necessary in order that his wishes may be so carried out, then
he has a "legal right" so to carry out his wishes'.
"The first interpretation of the term 'legal right' was made in the case of
U.P. v. G. G. in Council
. The word legal right was established in this
case in the case by Justice Sulaiman in relation to provincial governments in
Section 204 of the Government of India Act of 1935.
In his voice:
the term 'legal right', used in section 204, obviously means a right recognised
by law and capable of being enforced by the power of a State, but not
necessarily in a court of law. It is a right of an authority recognised and
protected by a rule of law, a violation of which would be a legal wrong to his
interest and respect for which is a legal duty, even though no action may
actually lie. The only ingredients seem to be a legal recognition and a legal
The mere fact that under the previous Act the Provincial Governments were
subordinate administrations under the control of the Central Government and
could only have made a representation to the Governor-General-in-Council or the
Secretary of State, would not be sufficient, in itself, for holding that the
former could not possibly possess any legal right, at all, against the Central
Government, even in respect of rights conferred upon them by the provisions of
the Act or the rules made thereunder".
The same principle was also upheld in the case of State of Rajasthan v. Union
Wherein it was held that the Supreme Court has the power to provide any type of
relief in case it is important to enforce the legal right of any state if such
legal right has been established by the Government of the state. "However,
no political differences shall be entertained by the Supreme Court.
In the same case, the Supreme Court ruled that it was not compulsory for the
government to refer the matter to the Supreme Court under Article 131 only in
violation of its legal right. Instead, the State Government(s) can, under the
present clause, sue any move by the Central Government for its breach of the law
or for its constitutional validity. These disputes are then determined in
accordance with the procedural rights of the parties to the conflict. The
Supreme Court serves as the interpreter of the different units of the union and
establishes the privileges thereof.
As happened in the case of State of Karnataka v. UoI
, The maintenance
of the suits brought in accordance with Article 131 was debated by Justice
Bhagwati. It is him who says, 'what has, therefore to be seen in order to
determine the applicability of Article 131 is whether there is any relational
legal matter involving a right, liberty, power or immunity qua the parties to
If there is, the suit would be maintainable but not otherwise'. This implies
that the States do not bring an initial suit in accordance with Article 131 of
the Constitution unless a legal conflict exists. The Court has no right to
entertain a political controversy between the States and the Centre.
An analysis of Article 131 leads to the inference that even though the state
governments cannot question the central laws because it was passed within the
legislative powers of the central government, In compliance with Article
131 of the Constitution, state governments may file an original lawsuit.
Invoking this article requires states to appeal central statutes because they
have ignored constitutional requirements and because the underlying framework of
the Constitution has been violated.
The key issue, though, is whether the state government will reject a central
rule. For Article 365 specifically states that the State Government is obliged
to observe in exercising its executive powers in accordance with the
Constitution, among the many other clauses of the Constitution. In view of this,
it is an issue for discussion whether the state government will oppose the
central government and a central rule. In its legal opinions over the years, the
Supreme Court took opposing decisions with regard to the sustainability of such
a petition. Which will be Further Discussed.
Issue of Maintainability: Differing Opinions
In the State of Karnataka v. Union of India
 case of 1977, the
judgement of the Supreme Court established fundamental norms in relation to the
maintenance of petitions, which were also illustrated in the preceding section.
Article 131 was held to be valid only in cases involving a disagreement between
the Center and the States with respect to their constitutional provisions.
In this situation, the majority decision emphasized on "when differences arise
between the representatives of the State and those of the whole people of India,
on questions of interpretation of the Constitution, which must affect the
welfare of the whole people, and, particularly that of the people of the State
concerned, it is too technical an argument to be accepted that a suit does not
lie under Article 131 of the Constitution".
In 2011, in contravention of the constitutional requirements, the state of
Madhya Pradesh opposed a law passed by the Centre. This was the case with State
of Madhya Pradesh State v. Union of India.
The question of whether states would appeal central laws in accordance with
Article 131 of the Constitution was one posed in the Court. The judges' bench of
Justice P. Sathasivam and Justice B. S. Chauhan claimed that only Articles 32
and 226 of the Indian Constitution could oppose a centralised rule.
The judges' contention was that, under the 43rd Amendment Act 1977, Article
131-A, which gained the Supreme Court exclusive authority in such cases, was
omitted on the grounds that it limited the right of judicial review of the High
Courts in compliance with Article 226 of the Constitution.
The Supreme Court thus no longer has the sole authority, under Article 22 or
Article 326 of the Indian Constitution, for the assessment of the substantive
validity of laws enacted by a central legislative assembly. The judges rejected
the maintainable authority of the suit in this context according to Article 131
of the Constitution, which is unique and original.
In 2014 Judge Bench J. S. A. Bobde and J. J. Jasti Chelameswar, in their
judgement in the State of Jharkhand v. State of Bihar
, dismissed the
rationale in the State of Madhya Pradesh v. Union of India
. The bench
underlined the fact that, in compliance with Article 131 of the Constitution,
the exclusive and original competence of the Supreme Court is inextricably
related to that of Article 32 of the Constitution.
In this case, the judges have interpreted Article 131 of the Constitution of
India as including any disagreement between the Center and the State (s). In
this respect, the bank uses the test in the case of State of Karnataka v.
Union of India
, stated that, 'we are unable to agree with the
proposition that this Court cannot examine the constitutionality of a statute in
exercise of its exclusive original jurisdiction under Article 131'.
Since two judge's benches made the judgments of both cases, the matter has been
appealed to a wider bench. The question is still still relevant and there has
been no decision in this respect. Consequently, the Court has not yet addressed
the issue of maintainability in accordance with Article 131 of the Constitution.
The State of West Bengal had presented a written petition pursuant to Article 32
of the Indian Constitution in order in 2017 to question the substantive
legitimacy of the Adhaar Act in Binoy Viswam v. Union of India
the method outlined in the State of Madhya Pradesh v. Union of India
Two Judge Bench A.K.Sikri and the Judge Ashok Bhushan noted that, in cases where
the legislation has been approved within the legal authority of the centre, the
State does not have the right to appeal a central law.
If such an approach is adopted, the States would find it hard to demonstrate
that their acts are maintainable, undermining the constitutional legitimacy of
central rules. However, Article 131 is interpreted as specifically requiring
that in the event of any infringement of any legal rights, a State may claim the
initial and exclusive competence of the Supreme Court.
Moreover, in the case of the State of Karnataka v. Union of India
a whole, if the values are respected, they are subject to sustainability. There
is no guarantee, though, since the case is pending before the Indian Supreme
In the Indian Constitution, the essence of federalism is such that the central
has greater influence than the nations. The states shall comply, in this regard,
with every order or regulation passed by the central parliament. Any such action
is illegal. However, under Article 131 of the Constitution of India, these
states will object to the central laws of the Supreme Court of India for the
reason that they contradict the Constitution.
The issue with this solution is the maintenance of these fits. By interpreting
Article 131, it can be concluded that all the conditions to be kept maintainable
by the original suits that challenge the statutory legitimacy of the central
laws under Article 131 of the Constitution, as a matter of law. The important
concern is, however, the relevance of the fundamental legitimacy of core laws of
The states have no power to reject central legislation, because of the obvious
obligation of the states to comply with the Constitution. However, whenever the
Supreme Court of India determines that certain rules are ultravires to the
Constitution, they are abolished. That will only happen if the charges brought
by the state governments can be retained. The Supreme Court's decision is then
supposed to become transparent and fix the issue entirely.
- D.D. Basu, Comparative Federalism p 1-2 (Wadhwa and Company, Nagpur, 2nd
- Granville Austin, The Indian Constitution: Conrnerstone of a Nation
p.187 (Oxford University Press, New Delhi, 13th impression, 1966).
- K.C. Wheare, Federal Government p. 27, 33 (1963).
- Union of India v. State of Rajasthan (AIR 1977 SC 1361).
- M.P Jain, Indian Constitutional Law p.226 (Lexis Nexis Butterworths,
Wadhwa, Nagpur, 6th edition, 2010).
- V.N. Shukla, Constitution of India p.514-519 (EBC, Lucknow, 12th Ed.,
- Avtar Krishna Kaul, "Article 131 of the Indian Constitution: Some
Observations", 13 JILI 121-126 (1971).
- AIR 1939 FC 58.
- AIR 1977 SC 1361.
- H.K.Saharay, The Constitution of India: An Analytical Approach p.450
(Eastern Law House, Kolkata, 3rd Edition, 2002).
- AIR 1978 SC 68.
- The Constitution of India, 1950, art. 246.
- AIR 1978 SC 68
- ibid at para 143.
- (2011) 12 SCC 268.
- (2015) 2 SCC 431.
- (2011) 12 SCC 268.
- AIR 1978 SC 68
- ibid at para 17.
- (2017) 7 SCC 59.
- (2011) 12 SCC 268.
- AIR 1978 SC 68.