Critique of Indian Federalism
Bengal v. Union of India and “Third
Sense of Federalism” by Prof. P.K. Tripathi
First, I would like to argue that there is not one proposition which justifies each other butthere are two contrary propositions, though they started out in the same direction but theyfinal result or conclusion are completely different.
In the first proposition given in the case of State of West Bengal v. Union of India, theargument given at the bar was that “The Constitution having adopted the federal principleof government the States share the sovereignty of the nation with the Union, andtherefore power of the Parliament does not extend to enacting legislation for deprivingthe States of property vested in them as sovereign authorities.”16 However, theHonourable Court held that the Indian “…Constitution which was not true to anytraditional pattern of federation”.The Sinha, C.J., argued that in India there waswithdrawal or resumption of all the powers of sovereignty into the people of this countryand the distribution of these powers save those withheld from both the Union and theStates by the Constitution. He continued saying that the legal sovereignty of the Indiannation is vested the people of India and the political sovereignty is distributed between,the Union of India and the States with greater weightage in favour of the Union.17 Thejudge concluded that “…it would not be correct to maintain that absolute sovereigntyremains vested in the States”.On examining the various provisions of the Constitution,one can conclude that the distribution of powers - both legislative and executive - doesnot support the theory of full sovereignty in the States so as to render it immune from theexercise of legislative power of the Union Parliament.
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The proposition given by Prof. P.K. Tripathi as the third sense of federalism which hecalled as the “mythical sense of federalism”18 describes that the Constitution “...underconsideration does not satisfy the essential and indispensable requirements
Sense of Federalism” by Prof. P.K. Tripathi
First, I would like to argue that there is not one proposition which justifies each other butthere are two contrary propositions, though they started out in the same direction but theyfinal result or conclusion are completely different.
In the first proposition given in the case of State of West Bengal v. Union of India, theargument given at the bar was that “The Constitution having adopted the federal principleof government the States share the sovereignty of the nation with the Union, andtherefore power of the Parliament does not extend to enacting legislation for deprivingthe States of property vested in them as sovereign authorities.”16 However, theHonourable Court held that the Indian “…Constitution which was not true to anytraditional pattern of federation”.The Sinha, C.J., argued that in India there waswithdrawal or resumption of all the powers of sovereignty into the people of this countryand the distribution of these powers save those withheld from both the Union and theStates by the Constitution. He continued saying that the legal sovereignty of the Indiannation is vested the people of India and the political sovereignty is distributed between,the Union of India and the States with greater weightage in favour of the Union.17 Thejudge concluded that “…it would not be correct to maintain that absolute sovereigntyremains vested in the States”.On examining the various provisions of the Constitution,one can conclude that the distribution of powers - both legislative and executive - doesnot support the theory of full sovereignty in the States so as to render it immune from theexercise of legislative power of the Union Parliament.
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The proposition given by Prof. P.K. Tripathi as the third sense of federalism which hecalled as the “mythical sense of federalism”18 describes that the Constitution “...underconsideration does not satisfy the essential and indispensable requirements