POWERS OF THE FEDERATION

Before I describe the powers of the Federal Government it might be desirable to explain what is the essence of a Federal Form of Government.

There is no simpler way of explaining it than by contrasting it with the Unitary Form of Government.

Although the Federal Form of Government is distinct from the Unitary form, it is not easy to see distinction. On the other hand there is, outwardly at any rate, a great deal of similarity between the two. The Government of almost every country in these days is carried on by an inter-related group of Administrative Units operating in specific areas and discharging specific public functions. This is true of a country with a Federal Form of Government and also of a country with a Unitary form of Government. In a Federal Constitution there is a Central Government and there are inter-related to it several Local Governments. In the same way in a Unitary Constitution there is a Central Government and there are inter-related to it several Local Governments. On the surface, therefore, there appears to be no difference between the two.

There is, however, a real difference between them although it is not obvious. That difference lies in the nature of the inter-relationship between the Central and the Local Administrative Units. This difference may be summed up in this way. In the Unitary Form of Government, the powers of the local bodies are derived from an Act of the Central Government. That being so the powers of the Local Government can always be withdrawn by the Central Government. In the Federal form of Government the powers of the Central Government as well as of the Local Government are derived by the law of the Constitution which neither the Local Government nor the Central Government can alter by its own Act. Both derive their powers from the law of the Constitution and each is required by the Constitution to confine itself to the powers given to it. Not only does the Constitution fix the powers of each but the constitution establishes a judiciary to declare any Act whether of the Local or the Central Government as void if it transgresses the limits fixed for it by the Constitution. This is well stated by Clement in his volume on the Canadian Constitution in the following passage:

" Apart from detail, the term federal union in these modem times implies an agreement ............ to commit ............ people to the control of one common government in relation to such matters as are agreed upon as of common concern, leaving each local government still independent and autonomous in all other matters, as a necessary corollary the whole-arrangement constitutes a fundamental law to be recognised in and enforced through the agency of the Courts.

" The exact position of the line which is to divide matters of common concern to the whole federation from matters of local concern in each unit is not of the essence of federalism. Where it is to be drawn in any proposed scheme depends upon the view adopted by the federating communities as to what, in their actual circumstances, geographical, commercial, racial or otherwise, are really matters of common concern and as such proper to be assigned to a common government. But the maintenance of the line, as fixed by the federating agreement, is of the essence of modem federalism; at least, as exhibited in the three great Anglo Saxon federations today, the United States of America, the Commonwealth of Australia, and the Dominion of Canada. Hence the importance and gravity of the duty thrown upon the Courts as the only constitutional interpreter of the organic instrument which contains the fundamental law of the land."

Thus to draw a line for the purpose of dividing the powers of Government between the Central and Local Governments by the law of the Constitution and to maintain that line through the judiciary are the two essential features of the Federal Form of Government. It is these two features which distinguish it from the Unitary Form of Government. In short every federation involves two things :

(1) Division of Powers by metes and bounds between the Central Government and the Units which compose it by the law of the Constitution, which is beyond the power of either to change and to limit the action of each to the powers given and

(2) a Tribunal beyond the control of either to decide when the issue arises as to whether any particular act of the Centre or of the Unit, Legislative. Executive, Administrative or Financial is beyond the powers given to it by the Constitution.

Having explained what is meant by Federal Government, I will now proceed to give you some idea of the Powers which are assigned by the constitution to the Federal Government.

(a)  Legislative Powers of the Federation

For the purposes of distributing the Legislative Powers the possible subjects of Legislation are listed into three categories. The first category includes subjects, the exclusive right to legislate upon which is given to the Federal Legislature. This list is called the Federal List. The second category includes subjects, the exclusive right to legislate upon which is given to the Provincial Legislature. The list is called the Provincial List. The third category includes subjects over which both the Federal as well as the Provincial Legislature have a right to legislate. This list is called the Concurrent list. The scope and contents of these lists are given in Schedule VII to the Government of India Act.

In accordance with the fundamental principles of Federation a law made by the Federal Legislature if it relates to a matter which is included in the Provincial List, would be ultra vires and a nullity. Similarly, if the Provincial Legislature were to make a law relating to a matter falling in the Federal List such a Provincial Law would be ultra vires and therefore a nullity. This is, however declared by statute and section 107 is now the law on the point. Cases of conflict of legislation touching the Federal List and the Provincial List are not likely to occur often. But cases of conflict between the two are sure to arise in the concurrent field of legislation. The law as to that you will find in section 107. Sub-section (7) lays down when a Federal Law shall prevail over a Provincial Law. Sub-section (2) lays down as to when a Provincial Law shall prevail over the Federal Law. Reading the sub-sections together the position in law is this. As a rule a Federal Law shall prevail over a Provincial Law if the two are in conflict. But in cases where the Provincial Law, having been reserved for the consideration of the Governor-General or for the signification of His Majesty's pleasure, has received the assent of the Governor-General or His Majesty, the Provincial Law shall prevail until the Federal Legislature enacts further legislation with respect to the same matter.

With regard to the question of this distribution of powers of legislation every Federation is faced with a problem. That problem arises because there can be no guarantee that enumeration of the subjects of legislation is exhaustive and includes every possible subject of legislation. However complete and exhaustive the listing may be there is always the possibility of some subject remaining unenumerated. Every Federation has to provide for such a contingency and lay down to whom the powers to legislate regarding these residuary subjects shall belong. Should they be given to the Central Government or should they be given to the Units ? Hitherto there has been only one way of dealing with them. In some Federations. these residuary powers are given to the Central Government, as in Canada. In some Federations they are given to the Units, as in Australia. The Indian Federation has adopted a new way of dealing with them. In the Indian Federation they are neither assigned to the Central Government nor to the Provinces. They are in a way vested in the Governor-General by virtue of section 104. When a Legislation is proposed on a subject which is not enumerated in any of the three lists it is the Governor-General, who is to decide whether the powers shall be exercised by the Federal Legislature or by the Provincial Legislature.

(b) Executive Powers of the Federation

The first question is, what is the extent of the executive powers of the Federation ? Is it co-extensive with the legislative powers ? In some of the Federations this was not made clear by statute. It was left to judicial decision. Such is the case in Canada. The Indian Constitution does not leave this matter to courts to decide. It is defined expressly in the Act itself. The relevant section is section 8(7). It says that the executive authority of the Federation extends—

(a) to matters with respect to which the Federal Legislature has powers

to make laws;

(b) to raising in British India on behalf of His Majesty of naval, military and air forces and to the governance of His Majesty's forces borne on the Indian establishment ;

(c) to the exercise of such rights, authority and jurisdiction as are exercisable by His Majesty by treaty, grant, usage, sufference, or otherwise in and in relation to the tribal areas.

There is no difficulty in following the provisions of this sub-section. There might perhaps be some difficulty in understanding sub-clause (a). It says that the executive powers must be co-extensive with the legislative powers of the Federation. Now the legislative power of the Federation extends not only to the Federal List but also to the Concurrent List Docs the executive power of the Federation extend to subjects included in the Concurrent List ? Two points must be borne in mind before answering this question. First, the Concurrent List is also subject to the legislative authority of the Province. Second, according to section 49(2) that the executive authority of each Province extends to the matters with respect to which the Legislature of the Province has power to make laws. The answer to the question whether the executive authority of the Federation extends also to the Concurrent list is that the Executive Authority in respect of the Concurrent List belongs to the Federal Government as well as to the Provincial Government. This is clear from the terms of section 126(2). It belongs to Provincial Government except in so far as the Federal Legislature has covered the field. It belongs to the Federal Government except in so far as the Provincial Legislature has covered the field.

The Concurrent List is not the only list which is subject to Legislation by the Federal Legislature. The Federal Legislature has the right to legislate even on Provincial subjects under Section 102 in causes of emergency and under Section 106 to give effect to international agreements. Does the Executive Authority of the Federation extend to such matters also? The answer is that when a field is covered by Federal Legislation that field also becomes the field of Executive Authority of the Federation.

(c) Administrative Powers of the Federation

The Administrative Powers of the Federation follow upon the Executive Powers of the Federation just as the Executive Powers of the Federation follow upon the Legislative Powers of the Federation.

To this there is one exception. That exception relates to the administration of subjects included in the Concurrent List. The Concurrent List is a list to which the Legislative Authority of the Federation extends by virtue of Section 100. As has already been pointed out the executive authority of the Federation extends in so far as Federal Legislation has covered the field. But the administrative powers for subjects falling in the Concurrent List do not belong to the Federation. They belong to the Provinces.

(d) Financial Powers of the Federation

The revenues of the Federal Government are derived from four different sources: (1) Revenue from Commercial Enterprise, (2) Revenue from Sovereign Functions; (3) Revenue from Tributes; and (4) Revenue from Taxes.

Under the first head fall all revenues from Posts and Telegraphs. Federal Railways, banking profits and other commercial operations. Under the second head come revenues from currency and coinage, from bona vacantia and territories administered directly by the Federal Government. Under the third head are included Contributions and Tributes from the Indian States.

The classification of Revenue from taxes follows upon the Powers of Taxation given to the Federal Government by the Constitution. The Powers of Taxation given to the Federal Government fall into three main categories. in the first category fall those powers of taxation which is wholly appropriable by the Federal Government. In the second category, fall those powers of taxation which are exercisable for raising revenue which is divisible between the Federal Government and the Provincial Governments.

The heads of revenue which fall under the first category of Taxing Powers cover those which are specifically mentioned is the Federal List—

1. Duties of customs, including export duties.

2. Duties of excise on tobacco and other goods manufactured or

produced in India except— (a) alcoholic liquors for human consumption ; (b) opium, Indian hemp and other narcotic drugs and narcotics, non-narcotic drugs;

(c) medical and toilet preparations containing alcoholic, or any substance included in sub-paragraph (b) of this entry.

3. Corporation tax.

4. Salt

5.  State lotteries.

6. Taxes on income other than agricultural income.

7. Taxes on the capital value of the assets, exclusive of agricultural land

of individuals and companies ; taxes on the capital of companies.

8. Duties in respect of succession to property other than agricultural land.

9. The rates of stamp duty in respect of bills of exchange, cheques. promissory notes, bills of lading, letters of credit, policies of insurance proxies and receipts.

10. Terminal taxes on goods or passengers carried by railway or air; taxes on railway fares and freights.

11. Fees In respect of any of the mailers in this list but not including fees taken in any court.

In connection with this, attention might be drawn to the following items  in the Concurrent List :

1. Marriage and divorce.

2.  Wills, intestacy and succession.

3. Transfer of Property and other agricultural lands

Being in the Concurrent list, the Federal Legislature has power to legislate upon with respect to these. Can the Federal Legislature also while legislating upon them raise revenue from them ? The Act does not seem to furnish any answer to this question. It may however be suggested that the rules contained in section 104 regarding the exercise of Residuary Powers will also apply here.

The sources of revenue which are made divisible by the Constitution are :

(1) Income Tax other than Corporation Tax and (2) Jute Export duty. Those which are made divisable according to the Federal Law are : (1) Duty on Salt,

(2) Excise duty on Tobacco and other goods and (3) Duties of Export.

In respect of the financial powers of the Federation there is one feature which by reason of its peculiarity is deserving of attention. The Act in giving the Federal Government the right to tax, makes a distinction between power to levy the tax and the right to collect it and even where it gives the power to levy the tax it does not give it the right to collect it. This is so in the case of surcharge on Income tax and the Corporation tax. The Income tax is only leviable in the Provinces and not in the States although it is a tax for Federal purposes. The State subjects are liable to pay only a Federal surcharge on Income Tax because such a surcharge is leviable both within the Provinces as well as the Slates. But under section 138 (3) the Federal Government has no right to collect it within the States. The collection is left to the Ruler of the State. The Ruler, instead of collecting the surcharge from his subjects, may agree to pay the Federation a lump sum and the Federation is bound to accept the same. Similar is the case with regard to the Corporation tax. The Federation can levy it on State subjects but cannot collect it directly by its own agency. Section 139 provides that the collection of the Corporation tax shall as of right be the function of the Ruler.

____________

(Kale Memorial Lecture)

Address delivered on 29th January 1939 at the Annual Function

of the Gokhale Institute of Politics and Economics held in the Gokhale Hall, Poona

http://www.ambedkar.org/ambcd/08.%20Federation%20vs%20Freedom.htm

Constitutional Morality

The Structure of the Federation

(a)  The Federal Legislature

The Federal Legislature is a bicameral legislature. There is a Lower House which is spoken of as the Legislative Assembly and there is an Upper House which is called the Council of State. The composition of the two Chambers is a noteworthy feature. They are very small Chambers compared with other legislatures having regard to the population and the area as the total membership of the Federal Assembly is 375 and of the Council of State 260. These seats are divided in a certain proportion between British India and the Indian States. Of the 375 seats in the Federal Assembly 250 are allotted to British India and 125 to the Indian States. In the Council of State, out of the 260 seats, 156 are allotted to British India and 104 to the Indian States. It may be noticed that distribution between British India and the Indian States is not based upon an equalitarian principle. It is possible to take the population as the basis of representation. It is also possible to take the revenue as the basis of representation. But neither of these has been taken as the basis of distribution of seats. Whether you take population as the basis or whether you take revenue as the basis, you will find that British India has been under-represented, while the Indian States have been over-represented in the two Chambers. The method of filling the seats is also noteworthy. The representatives of the British India in both the Chambers will be elected. The representatives of the Indian States, on the other hand, are to be appointed i.e., nominated, by the Rulers of the States. It is open to a Ruler to provide that the representatives of his State, though appointed by him, may be chosen by his subjects but this is a matter which is left to his discretion. He may appoint a person who is chosen by his people or he may, if he pleases, do both, choose and appoint. In the final result a State's representative is to be appointed by the Ruler as distinguished from being elected by the people. In the case of British India, the representatives are to be elected, but here again there is a peculiarity which may be noticed. In the case of allbi-cameral Legislatures the Lower House being a popular house is always elected directly by the people, while the Upper House being a revising Chamber is elected by indirect election. In the case of the Indian Federation this process is reversed. The Upper Chamber will be elected by direct election by the people and it is the Lower Chamber which is going to be elected indirectly by the Provincial Legislatures. The life of the Federal Assembly is fixed for a term of five years, although it may be dissolved sooner. The Council of State on the other hand is a permanent body not liable to dissolution. It is a body which lives by renewal of a third part of its membership every three years.

Now the authority of the two Chambers to pass laws and to sanction expenditure may be noted. With regard to the authority to pass laws some constitutions make a distinction between money bills and other bills and provide that with regard to money bills the Upper Chamber shall not have the power to initiate such a bill, and also that the Upper Chamber shall not have the authority to reject it. It is given the power only to suspend the passing of the bill for a stated period. The Indian constitution makes no such distinction at all. The money bills and other bills are treated on the same footing and require the assent of both the Chambers before they can become law. The only distinction is that while according to section 30(7) a bill which is not a money bill may originate in either Chamber, a money bill, according to section 37, shall not originate in the Upper Chamber. But according to section 3(2) a money bill needs the assent of the Upper Chamber as much as any other bill.

With regard to the authority to sanction expenditure: here again there is a departure made in the accepted principles of distributing authority between the two Chambers when a Legislature is bi-cameral.

According to section 31(7) the Annual Financial Statement of estimated receipts and expenditure shall be laid before both Chambers of the Federal Legislature and shall, of course, be open to discussion in. both the Chambers. Not only are they open to discussion in both the Chambers, they are also subject to the vote of both the Chambers. Section 34(2) requires that the expenditure shall be submitted in the form of demands for grants to the Federal Assembly and thereafter to the Council of State and either Chamber shall have the power to assent to or refuse any demand, or to assent to any demand subject to a reduction of the amount specified therein.

It will thus be seen that the two Chambers are co-equal in authority, both in the matter of their authority to pass laws and in the matter of sanctioning expenditure. A conflict between the two Chambers cannot end by one Chamber yielding to the other if that Chamber does not wish so to yield. The procedure adopted for the resolving of differences between the two Chambers is the method of joint sessions. Section 31 (1) deals with the procedure with regard to joint sessions where the convict relates to a bill. Section 34(3) relates to the procedure where the conflict relates to the differences with regard to sanctioning of expenditure.

(b)  The Federal Executive

The constitution of the Federal Executive is described in section 7(1). According to this section the executive Authority of the Federation is handed over to the Governor-General. It is he who is the Executive Authority for the Federation. The first thing to note about this Federal Executive is that it is a unitary executive and not a corporate body. In India ever since the British took up the civil and military government of the country, the executive has never been unitary in composition. The executive was a compositeexecutive. ie the Provinces it was known as the Governor-in-Council. At the Centre it was known as the Governor-General-in-Council. The civil and military government of the Provinces as well as of India was not vested either in the Governor or in the Governor-General. The body in which it was vested was the Governor with his Councillors. The Councillors were appointed by the King and did not derive their authority from the Governor-General. They derived their authority from the Crown and possessed co-equalauthority with the Governor and the Governor-General and, barring questions where the peace and tranquillity of the territory was concerned, the Governor and the Governor-General were bound by the decision of the majority. The constitution, therefore, makes a departure from the established system. I am not saying that this departure is unsound in principle or it is not justified by precedent or by the circumstances arising out of the necessities of a federal constitution. All I want you to note is that this is a very significant change.

The next thing to note about the Federal Executive is that although the Governor-General is the Executive Authority for the Federation, there are conditions laid down for the exercise of his powers as the Federal Executive. The constitution divides the matters falling within his executive authority into four classes and prescribes how he is to exercise his executive authority in respect of each of these four classes. In certain matters the Governor-General (1) is to act in his own discretion; (2) In certain matters he is to act on the advice of his Ministers; (3) in certain matters he is to act after consultation with his Ministers, arid (4) in certain matters he is to act according to his individual judgment. A word may be said as to the de jure connotation that underlies these four cases of the exercise of the executive authority by the Governor-General. The best way to begin to explain this de jure connotation is to begin by explaining what is meant by "acting on the advice of his ministers." This means, in those matters the government is really carried on, on the authority of the Ministers and only in the name of the Governor-General. To put the same thing differently, the advice of the Ministers is binding on the Governor-General and he cannot differ from their advice. With regard to the matters where the Governor-General is allowed, " to act in his discretion " what is meant is that the Government is not only carried on in the name of the Governor-General, but is also carried on the authority of the Governor-General. That means that there can be no intervention or interference by the Ministers at any stage. The Ministers have no right to tender any advice and the Governor-General is not bound to seek their advice; or to make it concrete, the files with regard to these matters need not go to the Ministers at all. "Acting in his individual judgment" means that while the matter is within the advisory jurisdiction of the Minister, the Minister has no final authority to decide. The final authority to decide is the Governor-General. The distinction between "in his discretion" and "in his individual judgment" is this that while in regard to matters falling "in his discretion" the Ministers have no right to tender advice to the Governor-General the Ministers have a right to tender advice when the matter is one which falls under " his individual judgment ". To put it differently in regard to matters which are subject to his individual judgment the Governor-General is bound to receive advice from his ministers but is not bound to follow their advice. He may consider their advice, but may act otherwise and differently from the advice given by the Ministers. But in respect of matters which are subject to his discretion he is not bound even to receive the advice of his Ministers. The phrase " after consultation " is a mere matter of procedure. The authority in such matter vests in the Governor-General. All that is required is that he should take into account the wishes of the Ministers. Cases relating to "acting after consultation " may be distinguished from cases relating to " individual judgment " in this way. In cases relating to " individual judgment" the authority vests in the Ministers. The Governor-General has the power to superintend and, if necessary, overrule. In the cases falling under " after consultation ", the authority belongs to the Governor-General and the Ministers have the liberty to say what they wish should be done.

(c)  The Federal Judiciary

The Government of India Act provides for the constitution of a Federal Court as part of the Federal Constitution. The Federal Court is to consist of a Chief Justice and such Puisne Judges as His Majesty thinks necessary, their number not to exceed six until an address is presented by the Legislature asking for an increase. The Federal Judiciary has original as well as appellate jurisdiction. Section 204, which speaks of the Original Jurisdiction of the Federal Court, prescribes that, that Court shall have exclusive Original Jurisdiction in any dispute between the Federation, the Provinces and the federated States which involves any question of law or fact on which the existence or extent of a legal right depends. This section, however, provides that if a State is party then the dispute must concern the interpretation of the Act or an Order in Council thereunder, or the extent of the legislative or executive authority vested in the Federation by the Instrument of Accession or arise under an Agreement under Part VI of the Act for the administration of a federal law in the States, or otherwise concern some matter in which the Federal Legislature has power to legislate for the States or arise under an agreement made after federation with the approval of the Representative of the Crown between the States and the Federation or a Province, and includes provision for such jurisdiction. Even this limited jurisdiction of the Federal Court over the States is further limited by the proviso that no dispute is justifiable if it arises under an agreement expressly excluding such jurisdiction.

The appellate jurisdiction of the Federal Court is regulated by section 205 and section 207. Section 205 says that an appeal shall lie to the Federal Court from any judgment, decree or final order of a High Court in British India if the High Court certified that the case involves a substantial question of law as to the interpretation of this Act or an Order in Council made thereunder. Section 207 relates to appeal from decision of Courts of the Federated States. It says that an appeal shall be to the Federal Court from a Court in a federated State on the ground that a question of law has been wrongly decided, being a question which concerns the interpretation of this Act or of any Order in Council made thereunder or the extent of the legislative or executive authority vested in the Federation by virtue of the Instrument of Accession of that State or arises under an Agreement made under Part VI of this Act in relation to the administration in that State of a law of the Federal Legislature ; but sub-section (2) to section 207 provides that an appeal under this section shall be by way of a special case to be stated for the opinion of the Federal Court by a High Court, and the Federal Court may require a case to be so stated.

Two further points with regard to the Federal Judiciary may be noted. The first is the power of the Federal Court to execute its own orders. The Federal Court has no machinery of its own to enforce its orders. Section 210 provides that the orders of the Federal Court shall be enforceable by all courts and authorities in every part of British India or of any Federated State as if they were orders duly made by the highest court exercising civil or criminal jurisdiction as the case may be in that part. The instrumentality, therefore, which the Federal Court can use for the enforcement of its own orders consists of the administrative machinery of the units of the Federation. The units of the Federation are bound to act in aid of the Federal Court. This is different to what prevails for instance, in the United States of America, where the Supreme Court has its own machinery for enforcing its own orders.

The second point to note with regard to the Federal Court is the question of the powers of the Executive to remove the judges and the power of the Legislature to discuss their conduct. In this respect also the Federal Court stands on a different footing from the Federal Courts in other Federations. The Constitution does not give the Governor-General the power to suspend a Judge of the Federal Court. It forbids any discussion of a judge's judicial conduct by the Legislature. This. no doubt, gives the judge of the Federal Court the greatest fixity of tenure and immunity from interference by the Executive or by the Legislature. To remove the Judiciary from the control of the Executive it has been found necessary that the tenure of a judge must not be subject to the pleasure of the Executive. All constitutions, therefore, provide that the tenure of a judge shall be during good behaviour and that a judge shall be removable only if address is presented by the Legislature pronouncing that he is not of good behaviour. Some such authority must be vested in somebody which should have the power to pronounce upon the good behaviour of a judge. This provision is absent in the Federal Constitution, so that a Judge of the Federal Court once appointed is irremovable from his place till retirement, no matter what his conduct during that period may be. Instead of this power is given to His Majesty under section 200(2)(b) to remove a Judge of the Federal Court on the ground of misbehaviour or infirmity of body or mind it the Judicial Committee of the Privy Council reports that he may be removed on any such ground.