Unitary features in federal Constitutions of Nepal and India
Dr Vijay Srivastava and Jivesh Jha
With the adoption of new Constitution, Nepal is transformed into a republican state from a Constitutional monarchy, a federal democracy from a unitary system, and a secular structure from a Hindu character.
Seventh in a series of historical documents, September 20, 2015 had been recorded in history book as a day that firmly established Nepal as a federal democratic republic with secular fabrics. However, there are ample provisions which reflect the unitary characters though the Constitution establishes a dual polity, a two-tier governmental system with the Central government at one level and the Provincial government at the other.
The amendment procedure enshrined under Article 274 envisages that any resolution for amendment can be laid down in parliament except for sovereignty, territorial integrity and independence of Nepal. It means the competent parliament of Nepal in future may, by a two-third majority, change in part or whole the federal, secular or republican character of the Constitution.
Under the Constitution, Nepal’s federal structure is merited with a development that divided the country into seven provinces, with clear lists of legislative powers for the central, provincial and local bodies.
The other main characteristic feature which goes against the spirit of federalism is non-recognition of the principle of separation of power. Article 78 (2) prescribes that a Minister appointed by the President on the recommendation of Prime Minister must receive membership of Federal Parliament within six months of taking oath of office. The Indian Constitutional framework too mirrors the similar position.
In this way, a member of executive holds a seat in legislature as well. The much-admired commentators Wade and Philips in their work Constitutional Law (1960) observed that the theory of separation of power signifies that the same set of persons should not compose the functions of more than one organ of government, e.g., the Ministers should not sit in parliament.
Similarly, Article 129 (2) provides that the Chief Justice of Nepal (CJN) and the justices of the Supreme Court shall be appointed by the President on the recommendation of Constitutional Council. The constitution of the Council is provided under Article 284. It envisages that the Prime Minister of Nepal would be the ex-officio Chairperson and the CJN, Speaker of the Lower House, Chairperson of Upper House, Leader of Opposition in Lower House, and Deputy Speaker of Lower House will be acting as members.
It may be noted that the judiciary cannot risk being caught in the web of indebtedness but the ample space of political intrusion in appointment of the judges pose a threat to its independence.
The Constitution further becomes unitary when it comes to learn that the “operation, supervision, and coordination of Nepal police and provincial police shall be as provided by Federal law” [Article 268 (3)]. In doing so, the drafters of the Constitution have offered a little say to the state legislatures in enacting policies for the police apparatus.
In contrast, Article 56 confers the power to declare village councils and municipalities to the federal government. “This means the provinces do not have the power to restructure local bodies in the future,” writes Dipendra Jha, Chief Attorney of Province-2, in his book Federal Nepal: Trials and Tribulations. To a surprise, Article 203 does not give power to the provincial governments to levy tax without the consent of central government.
Much like Nepal, “Though India is a federation her Constitution departs from the idea of a true federation in several vital and significant ways. She is not a genuine federation but a quasi-federation having several features of unitary states,” argues political scientist JP Suda in her book Modern Political Thought: Bentham to Recent Times.
In India and Nepal—unlike United States–there is no concept of state citizenship and every citizen is entitled to acquire the same citizenship as a matter of inherent right irrespective of his residence across the state.
The Union Government of India exercises its power over State Governments in certain circumstances such as Emergency and has residuary power in respect of law making on a subject which neither falls under Union List, nor under State List or Concurrent List. This concept has been borrowed from Canada. Interestingly, Article 58 of Nepali charter is also more or less couched in a language which conveys the same expression.
Unlike United States, the Indian Constitution is the fundamental law of the Union as well as States. The sole power is conferred on the Union to change the boundaries of the State/s and to carve out one state from another. Indian federation enjoys the concept of single judiciary as Supreme Court and High Courts of states form a single integrated judicial system.
Further, as there is bicameralism in India, the State has unequal representation in Council of States and again it hampers the spirit of federalism in India. President, the executive head of the Union, appoints the members of State machinery such as Governor, Judges of the High Courts and Election Commissioners, who conduct election not only of parliament but also of State Legislature.
The insertion of Article 368 makes the Indian Constitution flexible and as such is against the spirit of federal Constitution. President has the last say in certain laws passed by the State legislature as his assent approves a Bill to become a law. And finally, state is financially dependent on Union as they have less source of income and many more expenditure. Thus, “India has a federation with strong centralising tendencies,” rightly said Sir Ivor Jennings, a celebrated jurist, who served long as Vice Chancellor of University of Ceylon and University of Cambridge.
In yet another sense, “Indian Union is federal but the extent of federalism in it is largely watered down by the needs of progress and development of country which has to be nationally integrated, politically and economically coordinated and socially, intellectually and spiritually uplifted,” the Supreme Court of India held in the case of State of Rajasthan v. Union of India (1963).
However, “Nepal Constitution has adopted the quasi-federal model in other structures of state as practiced in India, but it follows the American model on the representation in upper house,” further writes Jha in his book.
Moreover, the new Constitution embraces the principles of republicanism, federalism, secularism and principles of inclusiveness. The Interim Constitution of Nepal, 2007 formally abolished the monarchy and declared Nepal a republic. However, the 2015 Constitution finally ended any possibilities of a monarchical revival. In this light, Article 4 opening with a marginal note of State of Nepal introduces the Himalayan state like this: “Nepal is an independent, indivisible, sovereign, secular, inclusive democratic, socialism oriented federal democratic republican state.”
Norman D Palmer in his popular The Indian Political System observed that “The republic of India is a federation although it has many distinctive features which seem to modify the essentially federal nature of state.”
However, Benjamin puts this way: There was a tendency of centralising Indian federalism but that was not because of its structural framework; but because of its socialistic goals and centrally devised plan of development. He was of the opinion that Indian Constitution embodies provisions of unitary features but it’s enshrined for achieving socialist objectives. Fortunately, the view of Benjamin appears true in case of Nepal too in one way or some other.
Still, the time is now ripe for a debate on whether the fundamentals of socialism are given effect in federal structures of India and Nepal or not. After all, federalists often argue that they have adopted a federal model to spearhead the cause of socialism at dual polity of governance.
Dr Srivastava is Assistant Professor of Law at Uttaranchal University, Dehradun and Mr Jha is student of LL.M (Constitutional Law) at Uttaranchal University, Dehradun, India.
Published on 13 May 2018