System of Checks and Balances envisaged on all major
constitutions. Example : - NJAC - Independence of judiciary effected - Judicial review effected - Basic structure effected Post - Appointment of Judges------Realm of Judiciary-----Not to be encroached by Executive. Unitary systems--- Work for small, heterogeneous countries. Grouping together to form federations - Units cannot move away from union. Indestructible units. Distinct demarcated spheres of power. Indestructible union of indestructible units. Confederations - Unit come together for some purpose. Units control the Union. In India, the system is neither Unitary, Federal or Confederation model. In Unitary power, all power is delegated (no power is divided). In a Federation, sovereign units come together and pass on political powers to a central sphere. The States are left with residuary powers. e.g. U.S.A In India, the political power was always centered in a union. Flow of power has been from the Centre to the State. However, residuary power rests with the Union. India : Unitary vs Federal ? Historically, political power did not have a distinct identity. Communal Identity ? Existence of communal issues-----Requirement of Unitary bent. Unitary is necessary to prevent disintegration through the means of cessesation. However, too much of it can suppress diversity. Analogy ----- Delhi Police Act ( Control of centre) while in other states, Policing is a State subject. Read :- 10 Yardsticks of Federalism ( Duckeshere) Division of Power-----In Indian Constitution, 7th Schedule provides for Division of Power. Article 246 read with concurrent list----Entry 97 provides for Residuary Powers---Overlap of Powers. Yardstick No. 1 - Union should have exclusive control of Foreign relations. Affirmative. e.g. Policies related to war and peace---e.g. Entry 1,2,10,12 of List 1 (If not found in the Concurrent list then it is the exclusive domain of Union) affirm it. Union executive power posited in Constitution - Article 53 - Executive power rests in the President and shall be exercised by him. Article 73 - Extent of executive power of the Union. It corresponds with the extent of legislature power. Article 246 read with list 1 and list 3 - Extent of the legislature power. Yardstick No. 2 - Immunity against cessation. Affirmative--Since there is no territorial integrity of units provided in constitution, a right to cessation does not arise. e.g. States prohibited from cessation.----Article 1,2,3 & 4---Union can alter the boundaries of State, there is no territorial integrity provided to States(depends on whims and fancies of Union, i.e. Article 2). States do not have a right to secede. Only territorial integrity of Union is provided----- CASE :- Berubari Union ----- Presidential reference under A. 143--Indian territory ceded to Bangladesh. Note :- In confederation, the units can move away. However, in Federal system, the units' identity is not so distinct that they could move away. Union has the power to acquire territory---Explicitly stated in Constitution. Does Union have power to seize territory? Yardstick 3 - Independence to have central authority? i.e. Is the exercise of Central Authority equivalent to Federal Authority? Can the Union exercise power can first exercise authority without the ratification of the States?--Affirmative Eg. GST Bill----Streamlining taxes ----Tax on Sales---Union can also act with respect to it, however, ratification from States required. Eg. Income tax--Exclusive Union Subject (List 1) Yardstick 4 - Amendments to Federal Constitution (Rigid)---- Neither affirmative nor negative----In India, there is 2 Constitutions, one of J & K, while the other is of India---Article 368---Usually rigid, not easily amendable ( A unitary constitution is flexible )---The Indian Constitution is neither rigid, nor flexible. Note :- Constitutional amendment is very simple in Unitary Model. In Federal systems, an amendment to constitution is possible without consent from each and every state. However, in Confederate system, consent from each and every state is required.\ Article 368--Second part---Entrenched provision---50 % Ratification required. Yardstick 5 --- Indestructible identity----Units being protected from Union's encroachment?---Negative----Article 3 read with Article 2 and Article 1. Independent autonomy ? i.e. Can the Units act completely in autonomy without the domain of Union? ---List II Article 248. Are these subjects indestructible? i.e. Is it possible to swap the subject through a constitutional amendment (for instance From list II to list III)-- Reading of Article 1,2,3 & 4 - Units don't have any territorial integrity. Argument --- First schedule will stand amendment w.r.t. passing bill under Article 4 and it will not be a constitutional amendment acc. to Article 368-----Which means states don't have their autonomous identities. Note :- Union may legislate and administer a subject which is in the exclusive domain of State---Article 249