Constitutionalism, Federalism, and the Indian Experience

Constitutionalism, at its core, exists to limit the powers of authority and prevent the concentration of power in a single individual or institution. It operates on the principle that power must be restrained by rules, and that no authority, however mighty, should be above the Constitution itself. To achieve this, power is divided among the three great organs of the state: the Legislature, the Executive, and the Judiciary.

But this is not merely a theoretical design. In practice, the Constitution serves as a set of boundaries, compelling those who wield authority to exercise it within prescribed limits. In a monarchy, for example, where power is absolute and unconstrained, constitutionalism is absent because there is no system of limitations to check the ruler’s power.

Thinkers like John Locke and Thomas Hobbes are often considered early voices in the theory of constitutionalism. Locke, in particular, emphasized that sovereignty ultimately rests with the people, and that they retain the right to withdraw their consent from governments that exceed constitutional limits.

Constitution as a Social Contract

This idea flows from the social contract theory: the Constitution is essentially an agreement between the people and the authority that governs them. However, the notion of limiting sovereignty has long been debated. John Austin, for instance, argued that the idea of a “limited sovereign” is incoherent. According to him, all law is a command from a sovereign authority, and a sovereign cannot logically bind itself. To resolve this contradiction, Austin invoked the idea of popular sovereignty: that the ultimate sovereign is the people themselves. Institutions like Parliament or the Executive may be bound by constitutional limits, but the people’s sovereignty remains absolute.

As Locke put it, “Unlimited sovereignty remains with the people who have the normative power to void the authority of their government if it exceeds its constitutional limitations.” In this view, sovereignty is the supreme normative power; government is merely the set of institutions through which that sovereignty is exercised.

Entrenchment and Change

One of the central puzzles of constitutionalism is entrenchment: how far can a constitution be made difficult to change, without betraying the principle that sovereignty belongs to the people? If those in authority could freely amend the limits placed on them, then constitutionalism would collapse. Yet, if a constitution is so entrenched that even the people themselves cannot revise it, then sovereignty has effectively been stolen from them.

This balance plays out differently across countries. For instance, the United Kingdom has no single written Constitution. Instead, it relies on statutes, conventions, and judicial decisions — what scholars call an “uncodified constitution.” The U.S. and India, by contrast, have written constitutions, but their amendment procedures differ sharply.

The Indian Model: Federalism, but not Quite

The Indian Constitution is not rigid in the way the U.S. Constitution is, nor is it as flexible as the U.K.’s. It occupies a middle ground. India’s drafters designed a system that could adapt to its enormous diversity, while still preserving the authority of the Union.

In theory, federalism means a clear division of power between the Centre and the States. In practice, India is described as a “quasi-federal polity.” While powers are distributed both horizontally (Legislature, Executive, Judiciary) and vertically (Centre and States), the Constitution tilts towards the Centre.

For example, legislative powers are divided into three lists under the Seventh Schedule:

Union List (97 subjects) – Parliament has exclusive power.
State List (66 subjects) – States have jurisdiction.
Concurrent List (48 subjects) – Both can legislate, but in case of conflict, Union law prevails.

Unlike the U.S., where residuary powers lie with the States, in India they rest with Parliament (Article 248). This makes the Union much stronger than the States.

Bicameralism and Representation

Another key difference lies in bicameralism. In the U.S., the Senate ensures equal representation of states, regardless of population size. This federal feature means that smaller states stand on equal footing with larger ones in at least one chamber of Congress.

India also has two houses — the Lok Sabha (House of the People) and the Rajya Sabha (Council of States). But here, representation in the Rajya Sabha is proportional to population, not equal. This has led to friction: more populous states like Uttar Pradesh enjoy greater representation, while economically significant but less populous states like Kerala or Tamil Nadu have comparatively less influence.

Courts and Constitutionalism

The Supreme Court of India stands as the ultimate interpreter of the Constitution. Beneath it sit the High Courts and subordinate courts. This dual system ensures both federal and state-level justice.

Yet India is unique in how judges are appointed. While U.S. federal judges are nominated by the President and confirmed by the Senate, Indian judges are appointed through the collegium system — effectively, judges appointing judges. This was meant to insulate the judiciary from political influence, though it remains controversial.

The Court’s powers are vast. Under Article 32, it can hear cases directly when Fundamental Rights are violated. Under Article 131, it has original jurisdiction in disputes between the Union and States. Importantly, Indian High Courts can strike down laws passed by Parliament, though their rulings apply only within their jurisdiction; when the Supreme Court strikes down a law, it binds the entire country.

Constitutional Amendment and Notwithstanding Clauses

A central question is: who has the power to change the Constitution itself? In India, this lies primarily with Parliament (Article 368). Certain amendments also require ratification by at least half of the States.

Here enters the tricky phrase: “notwithstanding anything in this Constitution.” This means a provision will prevail even if it conflicts with other provisions. For instance:

Article 368 begins with “Notwithstanding anything in this Constitution, Parliament may amend…”
Article 31B (Ninth Schedule) shields certain laws from judicial review, “notwithstanding anything in this Constitution.”
Article 33 allows Parliament to restrict Fundamental Rights of the Armed Forces, again “notwithstanding anything in this Part.”

What if two such clauses collide? Courts then apply principles: the specific overrides the general, later amendments may prevail over earlier ones, and above all, the Basic Structure Doctrine applies. In Kesavananda Bharati v. State of Kerala (1973), the Supreme Court ruled that Parliament can amend the Constitution but cannot alter its “basic structure” — principles like democracy, secularism, judicial review, and federalism.

India vs. the United States

This makes Indian constitutionalism distinct from the U.S. In America, the Constitution was born from the coming together of sovereign states into a permanent Union. In India, the Union preceded the States — the Constitution itself created the States, and Parliament retains the power to alter their boundaries or even dissolve them.

Thus, in the U.S. one finds an indestructible union of indestructible states, while in India, the model is an indestructible union of destructible states.

Conclusion: Who Holds the Reins?

Constitutionalism always returns to the same question: who is in control? The Constitution imposes limits on government, but it is the people who hold ultimate sovereignty. If they collectively choose to amend even the limitations themselves, it remains constitutional — for sovereignty rests with them.

In India, the balance between diversity and unity, state power and central authority, and constitutional entrenchment and popular sovereignty, remains a constant negotiation. It is this delicate balance that sustains the world’s largest democracy.

Reference Section

Key Constitutional Articles

Article 32 – Right to constitutional remedies (Fundamental Rights)
Article 33 – Power of Parliament to restrict rights of Armed Forces
Article 73 – Executive power of the Union
Article 131 – Original jurisdiction of the Supreme Court
Article 245–246 – Distribution of legislative powers
Article 248 – Residuary powers
Article 329 – Bar on interference in elections
Article 368 – Power to amend the Constitution
Seventh Schedule – Union List (97), State List (66), Concurrent List (48)

Landmark Cases

Kesavananda Bharati v. State of Kerala (1973) – Basic Structure Doctrine
I.R. Coelho v. State of Tamil Nadu (2007) – Ninth Schedule laws subject to basic structure
Rajasthan v. Union of India (1977) – Centre-State relations under Article 131
Dred Scott v. Sandford (1857, U.S.) – Slavery, citizenship, constitutional crisis leading to Civil War
White House v. Jordan (U.S.) – Fact vs. law disputes
Bengal Money-Lenders Abolition case – Division of power between Centre and State

Key Thinkers

John Locke – Popular sovereignty, limited government, people’s ultimate authority
Thomas Hobbes – Social contract, strong sovereign for order
John Austin – Command theory of law, sovereign cannot bind itself
Ivo Dusanek (Comparative Federalism) – Federalism and state-union balance