Comparing the model of Federalism in India and U.S.A

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Federalism

Federalism can be simply defined as a form of government where there is interdependence of central government at the national level with its constituent units at the regional, state, or local levels. Etymologically, Foedus is the root Latin term from which the term Federalism is derived, which means a formal agreement or covenant or a treaty. It basically means sharing of decision making authority and devolution of power between the national and local governmental units, such that each unit is delegated a sphere of power and authority only it can exercise, while other powers must be shared. Justice Hugo. L. Black in the case of Younger v. Harris[1] decided by the United States Supreme Court wrote that Federalism meant “a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate State governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.”

Federation should work on a mutually interdependent political leadership where equilibrium is to be maintained so that neither of the levels of government becomes dominant to an extent that it can dictate the decision of the other. A federation should be able to influence, but not hegemonies; bargain, but not stipulate and persuade, but not coerce the other sovereign.

To draw a parallel between systems of government, a federal polity involves a dual system of government (national government and state government) as compared to a unitary system where a single-central government is cardinal and ultimate.[2] A classic example of a unitary state is the United Kingdom wherein Scotland, Wales and Northern Ireland have a degree of autonomous devolved power delegated by the Parliament of The United Kingdom, which may unilaterally alter or abolish devolution.[3] A Confederation, on the other hand, is a state government, which operates directly upon the people, and the central government acts through the state governments, unlike federation where both general and regional governments operate directly upon people.

In a Unitary state, units derive power from central legislature i.e. Union > Units. In Confederation, it is an alliance between independent states where units can secede i.e. Units > Union and when Union and Units are co-equal, it is a federation with each unit being sovereign in its own sphere due to division of legislative powers. Therefore, in federalism, unions and units are indestructible.

These days, with the complex and dynamic socio-economic structure and different circumstances, environments and history of every nation, not every governmental system can be purely federal or unitary. There is some color of centralism in a federal state and some federal characteristics in unitary nations.The idea of federalism has been conceptualized in two different ways. On one hand, federalism has been conceived as a means to unite people already linked by bonds of nationality through a distribution of political power among the nation’s constituent units. On the other hand, federalism has also been conceived as a means to unify diverse people for important but limited purposes, without disrupting their primary ties to the individual policies that constitute the federal system.[4] Thus, this mixture of centralizing and decentralizing trend is likely to continue as long as federalism exists.

Indian context

Looking at the Indian context, there are two levels of government: The central government with sole authority to coin money, raise an army and declare war, while an intermediate level of government i.e. states or provinces who have the sole authority to regulate education, criminal or civil law etc. So does the Indian Constitution represent Federalism or not? The First Article[5] of our Constitution reads,“India, that is Bharath, shall be a Union of States.” Dr. B.R. Ambedkar, the architect of the Indian Constitution, said that this union was a federation and called it a flexible federation, so as not to make it as rigid as the American Federation. The reason why federalism as a constitutional principle was articulated differently was because of the historical context in which our constitution was made, as the thought of a more potent federalism would weaken the feelings of national unity in the country. The constitution of 1950 was to be implemented throughout the length and breadth of the country with myriad of religions, races, languages and other diversities in our extremely heterogeneous society. It was argued that Federalism ‘is not a definite concept; it has not got any stable meaning. It is a concept, the definition of which has been changing from time to time’[6] A parliamentary system with federal features was finally adopted on 26th January, 1950 with no formal agreement by the states to join in ‘federation of states’, and thus Indian Union has been held as ‘quasi federal’ or a ‘co – operative federation’. Dr. B.R. Ambedkar emphasized that India will be a Union of States and not a Federation. The states would have no right to secede. He also said: “The Federation is a Union because it is indestructible. Though the country and the people may be divided into different States for convenience of administration the country is one integral whole, its people a single people living under a single imperium derived from a single source.”[7]

Judicial pronouncements

Over course of time, various judicial pronouncements have defined and interpreted the term ‘Federalism’ in different light.

Ever since the decision in West Bengal v. Union of India,[8]it has been the doctrine of our Supreme Court that the unitary features in our Constitution are so many that the Federal features almost disappear.

In Rajasthan v. Union of India[9]C.J. Beg said: “In a sense, therefore, the Indian Union is federal. But, the extent of federalism in it is largely watered down by the needs of progress and development of a country which has to be nationally integrated, politically and economically coordinated, and socially, intellectually, and spiritually uplifted.”

Going by a constitutional provision, Rajya Sabha is vested with a contingency-based power over state legislatures under Article 249,[10] which contributes to the ‘Quasi-federal’ nature to the government of the Indian union. Under Article 249(1), if the Rajya Sabha declares by a resolution, supported by not less than two-thirds of its members present and voting, that it is necessary or expedient in national interest that Parliament should make laws with respect to any of the matters enumerated in the State list. Article 251[11] when read with Article 249 provides that in case of inconsistency between a law made by parliament under Article 249 and a law made by a State legislature, the Union law will prevail to the extent of such inconsistency or ‘repugnancy’. In effect this provision permits the Rajya Sabha to encroach upon the specified legislative competence of a state legislature by declaring a matter to be of national importance. Though it may have been incorporated as a safeguard in the original constitutional scheme, this power allows the Union government to interfere with the functioning of a State government, which is most often prompted by the existence of opposing party-affiliations at the Central and state level. The nature of Federalism in Indian Constitution is no longer Res Integra. The authority to Parliament to legislate in a field covered by the State under Article 252[12] only with the consent of two or more States, with provision for adoption of such legislation by any other State; competence of Parliament to legislate in matters pertaining to the State List, only for a limited period, under Article 249 “in the national interest” and under Article 250 during “emergency”; vesting the President with the power under Article 258(1)[13] to entrust a State Government, with consent of the Governor, functions in relation to matters to which executive power of the Union extends, notwithstanding anything contained in the Constitution. This shows its bias towards Unitary Power. In the case of State of Karnataka v. Union of India & Anr.,[14] Justice Untwalia, observed as follows:

“Strictly speaking, our Constitution is not of a federal character where separate, independent and sovereign State could be said to have joined to form a nation as in the United States of America or as may be the position in some other countries of the world. It is because of that reason that sometimes it has been characterized as quasi-federal in nature”.

In S.R. Bommai & Ors. v. Union of India & Ors.,[15] a Constitution Bench comprising 9 Judges of this Court considered the nature of federalism under the Constitution of India. Justice A.M. Ahmadi, in Paragraph 23 of his Judgment observed as under: ” the significant absence of the expressions like ‘federal’ or ‘federation’ in the constitutional vocabulary, Parliament’s powers under Articles 2 and 3 elaborated earlier, the extraordinary powers conferred to meet emergency situations, the residuary powers conferred by Article 248 read with Entry 97 in List I of the VII Schedule on the Union, the power to amend the Constitution, the power to issue directions to States, the concept of a single citizenship, the setup of an integrated judiciary, etc., etc., have led constitutional experts to doubt the appropriateness of the appellation ‘federal’ to the Indian Constitution.

In the United States, the sovereign States enjoy their own separate existence which cannot be impaired; indestructible States having constituted an indestructible Union. In India, on the contrary, Parliament can by law form a new State, alter the size of an existing State, alter the name of an existing State, etc. and even curtail the power, both executive and legislative, by amending the Constitution. That is why the Constitution of India is differently described, more appropriately as ‘quasi- federal’ because it is a mixture of the federal and unitary elements, leaning more towards the latter but then what is there in a name, what is important to bear in mind is the thrust and implications of the various provisions of the Constitution bearing on the controversy in regard to scope and ambit of the Presidential power under Article 356 and related provisions.”[16]

Comparision of federalism between U.S. and India

To decipher this issue, we can draw a parallel to our constitution by comparing it with the ten yardsticks of Federalism as provided by Ivo D. Duchacek[17] and comparing it with the Federalism in United States of America.

Yardstick one

Has the Central Authority exclusive control over diplomacy and defence as befits a nation-state in its relations with other nation-states?

Generally, in a federation, Central government has the ultimate control over major issues in foreign policy and conduct of peaceful or violent international relations.

U.S.A.: The United States Constitution, for instance, prescribes under Article 1, Section 10, Clause 3[18] of the U.S Constitution that the ultimate control of defense and diplomacy is with Central Government.

India: Indian Constitution in its seventh schedule includes entries related to diplomacy and defense, war and peace, treatise, the United Nations, pilgrimages outside India, piracies and crimes committed on the high seas or in the air and offences against international law in the Union list, which gives power to the federal government.[19]List 1 of Schedule VII gives powers to the union government that are exclusive to the union and states cannot interfere with exercise of these powers. Apart from this, Article 53(2) vests the President with the Supreme Command of the Defense Forces of the Union. Article 352, 353 and 355 also speak about the Union’s power during the times of national emergency. Article 51, which speaks about the promotion of international peace and security, is also provided under the Directive Principle of State Policy. The existence of these powers under the Indian Constitution is more elaborate than in the American Constitution. Thus the Indian Constitution answers the first of the ten yardsticks of federalism more positively than the American Constitution.

Yardstick two

Is Federal Union constitutionally immune against dissolution by secession?

U.S.A.:Article 4, Section 3[20] of the U.S. Constitution clearly says that no new states shall be formed or erected within the jurisdiction of any other state without the consent of the legislatures of the states concerned as well as of the Congress.[21] Further banking on Texas v. White[22], it was concluded that that constitutional limitation is necessary to prevent concentration of power on either National or State level. Chief Justice Salmon P. Chase commented that the federal Constitution “in all its provisions looks to an indestructible Union, composed of indestructible States.” Thus, it may be concluded that no state may secede from the union from the U.S. Constitution.

India: The constitution of India declares that India, that is Bharat, shall be a Union of States.[23]It empowers Parliament to admit into the Union, or establish, new States on such terms and conditions as it thinks fit.[24] Further Parliament can by law form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State; increasing the area of any State; diminishing the area of any State; altering the boundaries of any State; or altering the name of any State.[25]On a conjoint reading of these Articles, it becomes clear that Parliament has the right to form new States, alter the areas of existing States, or the name of any existing State. Thus the Constitution permits changes in the territorial limits of the States and does not guarantee their territorial integrity. Even names can be changed. Under Article 2 it is left to the Parliament to determine the terms and conditions on which it may admit any area into the Union or establish new States. In doing so, it has not to seek the concurrence of the State whose area, boundary or name is likely to be affected by the proposal. All that the proviso to Article 3 requires is that in such cases the President shall refer the Bill to the legislatures of the concerned States likely to be affected ‘to express their views’. Once the views of the States are known, it is left to Parliament to decide ‘on the proposed changes. The Parliament can, therefore, without the concurrence of the concerned State or States change the boundaries of the State or increase or diminish its area or change its name. These provisions show that in the matter of Constitution of States, Parliament is paramount.

Yardstick three

Is the exercise of the Central Authority, as it reaches all citizens, directly independent of the individual approval and resources of the component units?

The two main questions here are:

1. Can union directly tax people without state’s permission?

2. Can union directly reach people and provide welfare without state’s permission?

U.S.A.: The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States.[26]In 1913, the Sixteenth Amendment gave the Congress the right to impose income taxes “without apportionment among the several States, and without regard to any census or enumeration.”

India: In India, the Union Government is independent of the constituent units and can levy direct taxes and enforce federal laws. The tax heads or bases have been specifically mentioned in the Constitution itself, and divided between the Union and the States. Along with the tax bases mentioned in Schedule VII, Article 268 to 281 also speak about the tax sharing between them. Further, the Union property is exempted from the state taxes[27] and vice versa.[28]Thus, the Central authority is very much independent of the individual approval and resources of the component units with regard to the financial as well as other resources.

Yardstick four

Who has the ultimate control over amendments to the federal Constitution?

In dissecting the text of any constitution, this is the most steadfast and reliable yardstick to identify the federal structure of the state.

U.S.A.:  Under Article 5 of the U.S. Constitution,

To propose amendments:

By Congress: 2/3rd of both the houses

By application of legislature: 2/3rd of several states

For ratification: 3/4th of several states

Exception:

1. No amendment shall affect the first and fourth clause in ninth section of the first article;

2. No state shall be deprived of its equal suffrage in the Senate

India: Under the Indian Constitution the power and procedure for Amendments have been provided under Article 4, Schedule VI and principally under Article 368 of the Constitution. The power to initiate the amendments is vested with the union in all the cases. There is no need for the ratification by the states for all amendments. However, Article 368(2) identifies certain types of Amendments, which essentially need the ratification by at least half of the states. The Amendments, which need such ratification by at least half of the states, are provided under Article 368 (2) (a) to (e). Thus, it is clear that when Amendments are likely to be affecting the federal structure to some extent, ratification by not less than half of the States is necessary.

Yardstick five

Are the component units immune to elimination of their identity [antedating or postdating the Union] and authority?

U.S.A.: As discussed earlier, article 4, section 3 read with case of Texas v. White, the states cannot be destroyed, their boundaries cannot be altered and not even their names.

India: When India emerged as an independent State, it had nine fully autonomous states, eight less autonomous states, ten minor states, called Part A, B and C States respectively and federally administered territories called Union territories. The Reorganization of States has made this possible in 1965 mainly on linguistic considerations. Thus the power to alter the boundaries of the States under Indian Constitution do enjoy some “real powers” in all matters listed in List II as well or change the name of the existing ones is given to the Union Parliament. Although the power for the total elimination of a State’s identity is available with Parliament under Article 3(a) of the Constitution of India, it has not taken place so far.

Yardstick six

Have the component units retained all the powers that the constitution has not given to the central authority? And are these retained powers significant or marginal?

U.S.A: Article 1, Section 8 of U.S Constitution provides for 18 subject matters for the center to legislate upon and is restricted. The remaining power is with the States. Thus residuary power is with states.

India: In India, exhaustive lists are prepared which chalks out the various areas of the Centre and States. There never arose any question of residuary power. But then too, if any entry is not mentioned in any of the three lists, then the Centre has the authority over it. Thus residuary power is with Centre.

Yardstick seven

Is the collective sharing in federal rule making adequately secured by equal representation of unequal units in a bicameral system? What are the constitutional provisions for collective sharing in the executive and judiciary rule implementation?

U.S.A.: Often viewed by Americans as an essential yardstick of federalism is the Connecticut compromise, by which the American founders agreed on a proportional representation of unequal states in the lower house and an equal representation of unequal states (two senators per state) in the upper house. The United States bicameralism is a true and full one because both houses are equal in matters of legislation: no law can be enacted unless both houses agree on the same text.[29]

India: In India, collective sharing in federal rule making is secured by unequal representation of unequal units in the bicameral system. The allocation of seats to the States in the Council of States in the Parliament is provided under Schedule IV of the constitution. Apart from this, twelve members are nominated by the President to the Council of States. This takes the total strength of Rajya Sabha to 250.

Yardstick eight

Are there two independent set of courts, one interpreting and adjudicating the federal laws and the other the state laws?

U.S.A.: The U.S. Supreme Court has jurisdiction over the entire country but only in case of Federal Laws. The States have their own Constitutions and their individual Supreme Court to interpret their own laws.

India: There is only one hierarchy of courts with the Supreme Court at the apex and High Courts of individual States at the lower level. These two have the power to adjudicate both; Federal as well as State laws.

Yardstick nine

Is there a judicial authority in the central authority but standing above the central authority and the components units to determine their respective rights?

U.S.A: Yes, there is this concept of judicial review where the Supreme Court has jurisdiction to try center-state dispute. Mculloh v. Maryland[30]is the classic case of center state dispute, where judicial review was used.

India: According to Article 131, the Supreme Court of India has original jurisdiction to try center- state dispute. Moreover, judicial review is a basic feature of Indian Constitution provide in Article 13(2) read with 14, 32, 226. [31]

Yardstick ten

Is the territorial division of authority clear and unambiguous?

U.S.A: Reading this with the above discussed, clearly the working areas of both center and state has been clearly defined. Even if some confusion remains, the final authority is with center.

India: Exhaustive three lists are given under Article 246. Thus, there is clear demarcation of authority. Though a question arise, whether state can make a law which will have effect over union, answer to this question is yes, but there should be territorial nexus, that is subject should be real, not illusory, subject must be concerned with the object. But there are very few instances, which came up before the court regarding conflict of lists; this makes it clear that there is no ambiguity prevailing in India.

Conclusion

The Indian Constitution is impressed with three major loyalties. They all indicate that the structure was intended to be Federal or Quasi – Federal. The first loyalty of the Indian Constitution is to the Government of India Act, 1935 that provides its flesh, blood and a good part of its spirit. The second loyalty is to the American Constitution, which gives it widespread judicial review of laws and governmental actions, fundamental rights guaranteed by the constitution. The third loyalty owed is to the British Constitution. Pattern of Indian Parliament and State Legislatures is from the British model. Despite its diverse hues, federalism essentially involves the devolution of power and sharing of the decision-making authority. The format in U.S. can be classified as ‘bottom up’ model, where sovereign pre-existing units cede power to form a union, and India as ‘top down’ model, with a strong unitary focus and provincial units, ‘confederations’ within a loose union. Federalism is a vehicle for managing diversities, multiplicities and pluralities. As such, there can be no truly federal state. It all depends upon the time and different national environments. And because of such diverse culture in every nation, it is difficult to decode it on specific yardsticks of federalism. To articulately put it, it was enunciated by Justice P. B. Mukerjee in 1967 in his book ‘The Critical Problems of the Indian Constitution’[32]: The future of India and her Constitution will depend on how the nation evolves the principles and practice of federalism suited to India whose indispensible requisite has to be unity in diversity, integrity with variety, marked by the wisdom and experience of creating a harmony between the centrifugal and centripetal forces within this sub-continent.

Edited by Dhruval 

Quality Check – Ankita Jha

Approved & Published by – Sakshi Raje

 

Reference

[1]401 U.S. 37 (1971)

[2]Political power may be delegated through devolution to local governments by statute; the central government remains supreme; it may abrogate the acts of devolved governments or curtail their powers.

[3]By the Act of Union, 1707 Britain became the world’s first modern, unitary nation state

[4]Daniel J. Elazar, Federalism. International Encyclopedia of Social Sciences. (The

Macmillan Co., and Free Press, 1968), p.354.

[5]http://lawmin.nic.in/olwing/coi/coi-english/coi-4March2016.pdf. As accessed on 09.02.2017 | 09:30 PM

[6]C.A.D VI, 11, 950 vide T.T Krishnamachari

[7]Press Information Bureau, Government of India. http://pib.nic.in/newsite/PrintRelease.aspx?relid=109313. As accessed on 10.02.107 | 10:25 AM

[8]1 SCR 371 (1964)

[9] (1978) 1 S.C.R. 1

[10]Supra note 5

[11] Supra note 5

[12] Supra note 5

[13] Supra note 5

[14]1978 (2) SCR 1

[15]AIR 1994 SC 1918

[16]Kuldip Nayar v.Union Of India & Ors (AIR 2006 SC 3127)

[17]Ivo D. Duchacek was Professor Emeritus of Political Science, City University of New York. He was also the author of the book Comparative Federalism (1970)

[18]“No state shall enter into any Treaty, Alliance or Confederation…….No State shall, without the consent of Congress, keep Troops, or Ships of War in time of Peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded or in such imminent danger as will not admit of delay.”

[19]See Article 245 of the Indian Constitution

[20]http://constitutionus.com. As accessed on 10.02.2017 | 12:10 PM

[21]In addition, it also says ‘The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state’

[22]74 U.S. 700 (1869)

[23]See Article 1 of the Indian Constitution

[24]See Article 2 of the Indian Constitution

[25]See Article 3 of the Indian Constitution

[26]Article 1, Section 8 of the U.S. Constitution. http://www.usconstitution.net/xconst_A1Sec8.html. As accessed on 10.02.2017 | 05:35 PM

[27] Article 285 of the Indian Constitution.

[28] Article 289(1) of the Indian Constitution.

[29] http://rostrumlegal.com/comparative-federalism-testing-indian-constitution-on-the-yardstics-of-ivo-d-duchacek/ . RLR Vol I Issue III .COMPARATIVE FEDERALISM: Testing Indian Constitution on the yardsticks of Ivo D. Duchacek – Yogesh Pratap Singh

[30] 17 U.S. 316 (1819)

[31] International Journal of Multidisciplinary Approach and Studies(IJMAS): Yes, India is a Federal Country – Karn Marwah. ISSN No. 2348 – 537X

[32]Hon’ble Mr. Justice P.B. Mukherji, University of Bombay at Pg. 151. http://dli.ernet.in/handle/2015/107569. As accessed on 12.02.2017 | 04:00 PM