Comparative

Federalism

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 Origin of Federalism in the World

Introduction:

From the historical perspective, federalism has originated as one of the forms of internal set-up
of the state. In most instances (Example) of legal consideration, today federalism is actually
treated in this way; however, the political sciences have described as somewhat broader meaning
to it. Thus, one also may find a definition according to which;

“Federalism in its broadest sense marks a “multi-layer or pluralistic concept of social and
political life”.

The word federalism comes from the Latin word, Foedus, which means a “League” or a
“Treaty” A formal agreement between States, “Treaty of Peace’, “alliance” (Union) etc. where
equal parts agrees to create a common union with its own identity and integrity but at the same
time the different parts will keep its own identity and integrity

Federalism is not only an institutional arrangement within a nation, but also a political
philosophy in which a group of members are considered bound together, with a governing
representative head.

From this, it appears that, traditionally a federation has meant a union of several states brought
about through the instrumentality of treaty or agreement. By means of such a treaty, it is possible
to form various types of unions, beginning from an international alliance and ending in a unitary
state.

In the original definition, federalism is a system of 10 sovereignty rule and common rule and in
the agreement there is an assumption that conflict are to be solved peacefully under judicial
regulated forms.

Traces of federalism can be found way back in time, according to the political scientists Daniel
Elazar, this kind of union of federation goes back to stories in the Old Testament where different
groups of people came together and created a community with common laws and institutions.

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Even though the idea of federalism has existed for a long period of time, political scientists
trough out time have had difficulties when it comes to defining a federal state and it is possible to
come to the conclusion that 70% of the countries today have some kind of federal features.

Origin of Federalism

The principles of strong national federalism were first applied by the ancient Israelites
beginning in the 13th century B.C. to maintain their national unity through linking their several
tribes under a single National Constitution and at least quasi federal political institutions.

Several centuries later, the Greek city States experimented with federal style institutions as
means for the promotion of intra-national harmony and cooperation, primarily for defensive
purposes through associations. A modified form of the Greek view was developed by the 16th
century. Theorists who held that federalism meant a permanent league of States united through a
perpetual covenant (Long-Lasting Agreement), binding under international law, in which the
constituent States delegated enumerated powers to a General Government while retaining full
rights of internal sovereignty.

In the 18th century, the architects of the American system developed a conception (formation) of
federalism which came to be universally accepted as a popular pattern of governance. Most
scholars on the subject of federalism start with the model of the United States. This is because
the American federal system is the oldest and is regarded as the mother of all federal systems in
the world. In earlier days the form of political and economic circumstances impelled the States to
forge alliances (Union) with other States to overcome their common problems.

Initially it was the purpose of defense which brought small States under one umbrella for
security. This later paved (Pakka) way to political structure also where the regional and national
interests came to be accommodated. Thus as a system, federalism has adapted itself to changing
situations in the society. It is both a process and a Constitutional form. It is not static or a fixed
pattern, but organizes cooperation. The restraint of power is the crucial objective of the Federal
Structure. As a form federalism has varied applications. Admitting the dynamic process of
federalism, Sharada Rath observes that,

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“It cannot be viewed as a static Institutional pattern, but a dynamic process of federalizing a
political community, that is to say, a process by which a number of separate political
communities enter into arrangements by working out solutions, adopting joint policies and
making joint decisions on common problems.”

A federal structure is born when a number of separate or autonomous political units mutually
agree to merge together to create a State with a single sovereign Central Government while
retaining for themselves some degree of guaranteed regional autonomy. According to Durga Das
Basu,

“A federal State is a union of several States into a Central or Federal Government.”

After the federation is formed, both the federal and State Governments owe their existence and
authority to the federal Constitution which distributes Governmental powers between the federal
and State Governments which are to be exercised by them according to the Constitutional
distribution independently of each other.

Prior to 1787 there were only loose forms of unions between the States in die world. With the
adoption of the Constitution of United States of America in 1787, the concept of federal State
emerged in a definite shape. In the United States, the concept of federalism grew out of the
peculiar circumstances in which the American colonies, after attaining independence joined the
new State of United States of America. The colonies formed into a federal set up without losing
their individual identities and existence. Subsequently, number of other federal Constitutions has
cropped up in the world. Still each country has introduced variations of its own kind. As a result
federalism today consists of different types of federal Constitutions.

At present more than 20 countries have a federal system, while another 21 have certain federal
arrangements.

Importance of Federalism

The concept of federalism is one of the most important aspects of modem Constitutionalism. In
recent times the federal idea is having an increasing appeal despite the observation made by
some critics like Harold J. Laski that, “The epoch of federalism is over.”

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With the adoption of the Constitution of United States in 1787, the federal system of
Government has been widely adopted; today it is a subject of academic study and has practical
significance to a far greater extent than ever before. As rightly observed by Daniel Elazar,

“Federal principles and arrangements have become so wide spread because they suit the modem
temper, and federalism is designed to achieve some degree of political integration based on a
combination of self rule and shared rules.”

Taking the lead given by United States, federalism was embodied in the Constitutions of the

1. Swiss Confederation (1848),

2. the Dominion of Canada (1867), and
3. The Commonwealth of Australia (1900).

Federalism thus came to enjoy widespread popularity such as it had never known before. “After
the two World Wars several other countries have adopted the federal form of Government.
Notable among them are former Soviet Union, West Germany, India, Malaysia and Nigeria.

Traditional View of Federalism

The concept of federalism is dynamic in nature and has undergone changes both in theory and
practice since its beginning. Several scholars and political scientists have defined the term
“federalism” in different ways. The varied definitions and views can be grouped into two
categories namely;

 traditional or classical view and

 Modem view.

The main exponents of the classical view are A.V. Dicey, Harrison Moore, Lord Bryce, K.C.
Wheare and others. The central theme of the classical view rests on the idea of “dual federalism”
i.e., the existence of two co-ordinate and independent levels of Governments in a federation.
Both the Central and Regional Governments function within their demarcated areas independent
of each other. The classists maintain that functional division of powers and functions between
the two levels of Governments is the basic requirement of a genuine federal system. Enumerating
the traditional view point of federalism.

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A.V. Dicey writes,

“A federal State is a political contrivance (Set-up) intended to reconcile (Resolve) national unity
and power with the maintenance of State rights.”

The end aimed at fixes the essential character of federalism. For the method by which federalism
attempts to reconcile the apparently inconsistent claims of national sovereignty are elaborately
divided between the common or national Government and the separate States.

The details of this division vary under every different federal Constitution, but the general
principle on which it should rest is obvious. Whatever concerns the nation as a whole should be
placed under the control of national Government. All matters which are not primarily of common
interest should remain in the hands of several States.

Robert Garran holds that,

“Federalism is a form of Government in which sovereignty or political power is divided between

the Central and Local Governments so that each of them within its own sphere is independence
of the others.”

The federal and State Governments are described as two Governments covering the same ground
yet, distinct and separate in their action. The Constitution, being the supreme law of the land
protects the rights of the federal as well as State Governments. Here, the deliberate design is to
keep the centrifugal and centripetal forces in equilibrium.

Highlighting the “perfect independence” of the constituent units in a federation, K. C. Wheare,

pointed out that,

“In a federal constitution the powers of government are divided between a government for the
whole country and governments for parts of the country in such a way that each government is
legally independent within its own sphere.”

Pointing out to the distribution of powers, Birch,

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“A federal system of government is one in which there is a division of powers between one
general and several regional authorities each of which, in its own sphere is coordinate with the
others, and each of which acts directly on the people through its own administrative agencies.”

The traditional view of federalism emphasized the Constitutional and legal aspect of federalism
where two sets of Government work in their own spheres and are unified. Under the Constitution
the union works in such a manner that, “the personality and individuality of the component parts
are largely preserved while creating in the new totality a separate and distinct political and
Constitutional unit.” The above views put forth by different scholars indicate that the traditional
approach of federalism laid emphasis on the independence in the mutual relationships of the
States and the National Government.

Modern View of Federalism

The present century has witnessed many challenges in the form of wars, economic depressions
etc. Besides, the functions of the Governments have increased multiples. Most countries have
started on economic planning and social services. All these developments have made it difficult
for two sets of Governments, federal and regional, to work independently as put forth by the
traditionalist thinkers. On the contrary both the national and regional Governments have become
interdependent. So in recent times scholars have attempted to redefine the essential character of
federal political systems.

Modem view of federalism has resulted from an examination of the important role played by the
administrators, political parties and from the recognition of the extent of interaction and
interdependence among Governments within federations administratively, financially and
politically. The modem approach to federal principle finds recognition and formulation in the
writings of scholars like A.H. Birch and M.J.C. Vile. They put emphasis on the idea of
interdependence. According to Birch;

“The federal system of Government is one in which there is a division of powers between one
general and several regional authorities, each of which, in its own sphere is co-ordinate with
each other.” (Birch)

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In the modem view federalism implies more than mere Constitutional and legal characteristics.
Federal Governments “are not the off spring of political science. They are products of economic
and social pressures.”

The traditional idea of federation with independent centers of power at the two levels of
Government has changed. Even in the case of the American federal system, which is a classical
model, the theory of dual federalism has undergone a change over the years. As one scholar
rightly views, “U.S.A has entered an era of federalism in which shared powers and co-operative
federalism is the dominant theme.”

Expressing similar views two other scholars M.J.C. Vile and Daniel J. Elazar maintain that in
the 20th century administrative co-operation and political interdependence between federal and
State Governments is a dominant feature of the American federal system despite formal division
of power of the Constitution.

To quote Mr. Reagan, “the new style federalism refers to a multifaceted positive relationship of
shared action. The meaning of federalism today lies in a process of joint action, not in a matter of
legal status. It lies not in what Governments are but in what they do. It is a matter of action rather
than structure. It is dynamic and changing not static and constant.”

The above views hold good in the case of other federations also, including Canada and Australia.
R. L. Watts opines that, “Interdependence and Co-operation between the two levels of
Governments are instead their characteristics features.” According to him, co-operative
federalism has emerged because of the expansion in the economic sphere and increasing
functions of the modem Governments. This has resulted in the financial dependence of the
regional Governments upon the general Government and the administrative dependence of the
latter upon the former. Globally the mosaic of federalism in the last two centuries has changed
twice-first from empire to centralized federations and powerful unions, and then in recent times
it is changing towards a pattern of decentralized, cooperative and equipoise federation.

A new trend in most federations is towards division of powers and interdependence between the
Union and the units. An important feature of this new trend is “cooperative”, “interlinked”,
“intertwined”, “creative”, “interdependent” or “marble cake” federalism as developed in the

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United States. As an American scholar has rightly observed, “An era of federalism in which
“shared powers”, “co-operative federalism” became a dominant theme in U.S.A.”

The modem writers prefer cooperative federalism wherein the relationship between the two sets
of Governments is one of mutual cooperation and interdependence rather than of independence
and legal barriers.

Essential Features of a Federal System

Federalism as a political phenomenon can be better understood by tracing out the essential
features of a federal system. Still, it is difficult to identify all the characteristics of a federal
system. In the context of the nature of a federal system, three basic characteristics can be
envisaged, which are common to all federal systems. They include:

1. Distribution of powers between the national and State Governments,

2. the scheme of distribution shall be contained in a written Constitution which shall be
supreme over all the organs of the national and State Governments,
3. There shall be a federal judiciary with powers of giving final and authoritative
interpretation to the terms of the Constitution.

The division of powers is the very essence of a federal system. The two parallel Government’s
function on the same people and same territory. There should be a clear cut demarcation of
spheres within which both the Governments are to function. Prof Dicey says,

“Federalism means the distribution of force of the State among a number of co-ordinate bodies
each originating in and controlled by the Constitution.”

The pattern of division of powers between the National and State Governments varies from
federation to federation depending upon the mode of allocating residuary powers. The
supremacy of the Constitution becomes obvious because both the national and State
Governments owe their very existence to the Constitution. The concept of supremacy of the
Constitution leads to three distinct consequences;

I. First, the Constitution must be in the form of a written document, because in the absence
of a written document it would be difficult to know precisely the terms and conditions on
which the federation has been formed.
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 II. Secondly, it should not be possible for any one of the parties to the union i.e., either the
Union Government or the State Government to change unilaterally at least that part of the
Constitution which embodies the federal distinction of powers.
III. Thirdly, as all the organs including the legislatures of the National and State
Governments owe their existence to the Constitution and derive their powers thereof,
they are subordinate to the Constitution.

Therefore any action, taken by them in contravention of the Constitution may be struck down by
Courts in appropriate proceedings. The authority of the Courts is essential in order to decide the
rival claims of the National and State Governments by ascertaining the true meaning of the
relevant Constitutional provisions. Arthur W. Macmohan has aptly pointed out that,

“Judicial control like a written fundamental law has become an accepted corollary of the theory
of federal equipoise.”

The American federal system has acquired the reputation of a model system. This is because a
few yardsticks have been developed from the American model. Some of the yardsticks of this
dynamic’ concepts are as follows:

I. exclusive, control over foreign relations, diplomacy and defence,

II. immunity against secession,
III. independent sphere of central authority,
IV. rigid nature of the Constitution,
V. indestructible identity and autonomy,
VI. residual and significant powers need special attention and the Constitution makes it clear
as to who would take care of the powers which are not delegated to the central
Government or to the States or to the people,
VII. it requires bicameralism and equal representation of unequal States ,
VIII. independent impartial agency to interpret the Constitution, and act as a protector of the
Constitution to solve disputes about the division of powers between two jurisdictional
spheres, such an agency should be ideally independent of both the federal and the
provincial Governments and should stand above both, two sets of Courts - the federal
Court to adjudicate national laws and provincial Courts to adjudicate local laws,

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IX. Clear division of powers between the Centre and the component territorial units.

Most federations exhibit the above features with variations. So there is no fixed pattern of federal
experience. Depending upon the economic, political and social exigencies every federal system
will develop its own brand of federalism. Also the demands which a federal system has to cope
with, differs and as such the emergent discords vary. As aptly put by Amal Ray,

“Federalism has different slants, shapes ranging from being dangerously loose to extremely
tight.”

Taking into consideration the varying meanings and dimensions of federalism Ivo D. Duchacek
observes that,

“Perhaps a new word should be coined for the new combination of decentralization and
autonomy on the sub-national levels with participation on the national level.”

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United States of America

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Introduction:

Being the largest democratic countries in the world, United States of America are based on
federalism in their political structure. US became a Federal Republic State by promulgating
(Published) its constitution in the year of 1789; Thereby the country had attained dominion
(Sovereign) status in which a number of smaller states had got associated forming a union with a
strong central government that came to be called as Federal Government in the US. Thus the
country has become Federal Republics.

Federalism is a form of government which has been progressively becoming more powerful
throughout the globe. There was a time during World war-II, when Harold Lasci, the eminent
Bristish political scientist wrote that federalism has come to an end. That was the period of the
great economic depression and the beginning of the World war-II, and both of these events have
contributed to the theory of separation of powers and it has been a revival to the federal principle
to the federal form of government.

Today, federal form of government and the institution of judicial review are the most widely
expanding principles of government. It has been increasingly becoming popular in the new
constitutions in the world.

Federal form of government is based on a constitutional contract. A constitution division of

powers between the center and the states federal government which cannot be arbitrarily altered
by will of any government. It is a constitutional demarcation which can be unilaterally annealed
(recombine) unless there is a constitutional amendment. The parliament can make any law at any
moment. But, a constitutional amendment requires a special majority in both the houses of the
parliament separately and 2/3rd majority in two houses of the parliament separately and
ratification of at least 50 percent of state legislature. That is the significance of federal principle.

Broadly speaking, a constitution serves the following three purposes:

 The distribution and delimitation of public powers.

 The maintenance of public rights.
 The declaration of public obligations.

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The distribution of public powers requires the definition of:

 The respective spheres of authority of the central and local governments,

 The mode of exercising the authority so divided, and
 The regulation of mutual relations between public institutions charged with authority and
between the central and local governments.

The maintenance of public rights, in its relation to all citizens under the constitution, involves the
guarantee to them of a measure of individual liberty by legal sanction – eg., by means of writ of
Habeas Corpus, the freedom of religious practices, and of the expression of personal views.

Origin of Federalism in USA

The next big step in the history of federalism was the federation created in America, and even if,
as described above, federalist system had been existed earlier, the American federalism is seen
by many as the first federation. This is how the framers, after the War of Independence was won,
created the federation, with many elements looking the same today. The American system of
federalism is, as mentioned, considered to be the first one in the world.

The history of USA federalism started when the English immigrants set their feet in the new
world they started to create smaller townships, bigger counties and in the end states. Before the
war of independence these states had taken care of themselves, they had their own government,
interests and traditions. At that time 13 states, were quite resistant to entering a union together
with the other 12 states. But they had something in common, something that in the end forced
them to work together, they all wanted independence, independence from England. So while the
war of independence was going on, 1775-1783, they gave up 16 some of their power in favor of
the union and winning the war. As long as the war was going on it was easy for the government
to stay in power but when it was won the states did not really see any reasons to give up even
more power, they wanted their sovereignty back. So this is basically when the discussion started,
how much power should the states give up? The federal government was weak so in order to
save the union a commission led by George Washington was created.

After long deliberations the new constitution was ratified by all states and in 1789 the new
federal government was in possession. When the framers were to create the legislative body

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there was these two interests also mentioned above to take into regard. The ones who wanted the
states to get a lot of power and only wanted a national government where representative could
meet and discuss issues that concerned them all, and those who wanted a strong federal
government where all people in the former colonies could be one people. So it was difficult in a
practical way to meet all requirements in order to please the all states.

The framers looked at two alternatives, the first was to give the states independence and let the
majority of the states create common laws. By this way each state would have the same amount
of power in the national government. This idea was called the New Jersey plan and was
advocated by the smaller states. The big problem here was of course that the bigger states did not
see this as democratic and fair at all. Since they had a greater amount of people living in their
states and should thereby get more power.

Accordingly a second alternative was discussed; the Virginia plan’s idea was to have
representatives based on population, all states would have a certain number of representatives
depending on how big the population was. The smaller state could of course not accept this
alternative since it would leave them completely powerless within the federal government, so
what should the framers do, how could they work this out in a democratic way? The answer is
that the combined the two ways.

They created the Senate1 as the principle of the states sovereignty and the House of
Representative as the sovereignty of the people. The Senate consisted of two senators from each
state, no matter how big it was, and the House of Representative had representatives in
proportion to the population.

For an example the state of New York had 40 representatives in the house and two senators
while the state of Delaware had two senators but only one representative in the house.

As it is today, separation of power was of highest importance for the founders of the constitution.
The method that the framers came up with in order to ensure this division of powers became
known by the name “check and balances”. Check and balances became very important in the US
1
An assembly or council usually possessing high deliberative and legislative functions: such as.
 The supreme council of the ancient Roman republic and empire.
 the second chamber in the bicameral legislature of a major political unit (such as a nation, state, or
province)

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federal system as well as for other federal systems trough out the world. The first of the three
powers in the US system is the legislative power, which consists of the House of Representatives
and the Senate. Since this power consists of representatives of the states, this is where the
different states have their chance to affect the decision making.

 The legislative branch main job is to pass federal law.

 The second branch is the Executive branch, which consists of the President.
 And the third branch is the judicial.

The check and balance work so that each branch is given not only its own powers but also some
power over the other two branches. Among the most familiar checks and balances are the
president’s veto over congress and Congress’s power over the president trough its control of
appointments to high executive posts and to the judiciary. With this separation of powers, states
in the federation are with different levels of representation able to have an impact within the
national level of the federation.

Federalism in USA

The United States is a federal system. The powers of the national government are listed in
Article I, and were said by James Madison to be ‘few and defined’. Few, perhaps: Article I,
section 8 has 18 clauses, though some have sub divisions. And defined, to some extent: the
clause giving congress the power ‘to establish post offices and post roads’ is not subject to much
interpretation. Other provisions are not as obviously well defined; the meaning of the clause
giving congress the power ‘to regulate commerce among the several states’ has been contested
almost continuously since 1789.

1. United States vs Darby 312 US

The powers not delegated to the United States by the constitution are reserved to the states
respectively, or to the people. Upholding the federal minimum wage law, Justice Harlan Fiske
stone observed in this case that textually this provision ‘states but a truism that all is restrained
which has been surrendered’. Madison provides a useful statement:

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‘the powers reserved to the several states will extend to all the objects which, in the ordinary
course of affairs, concern the lives, liberties, and properties of the people, and the internal order,
improvement, and prosperity and the state’.

2. New state ice co. v. Liebman 285 US,

State governments and the US constitution:

The US constitution says nothing about the powers state governments have. Some provisions
expressly limit state power, for e.g. by barring state from issuing bill of credit. In addition the
national government has the power to displace state laws by enacting legislation that falls within
the powers granted to the national government. In this Case Justice Louis Brabdeis famously
asserted that a single courageous state may, if its citizens choose, serve as a laboratory; and try
novel social and economic experiments without risk to the rest of the country.

State governments mirror the national government in structure: an elected chief executive, two
houses in the legislature and a judiciary. Aside from the fundamental proposition that state
governments have plenary power that is, can legislate on any subject whatever- whereas the
national government has only enumerated powers, state government differ from the national
government structurally in many ways.

Each state develops its own budget. The US constitution does not require that the national
government operate in fiscal balance and in recent years it has rarely done so.

Federalism revolution of the 1990s

Several Supreme Court decisions in the 1990s led observers to declare that a federalism
revolution had begun. And indeed the court found a few statues unconstitutional because they
violated principles of federalism for the first time since 1936. Yet, to this point the revolution
looks more like a group of framers with pitchforks than a serious effort to overturn the expansion
of national power that followed the new deal.

Federalism and the spending power

The main lines of centralization of power in the national government were laid down through
congressional use of the power to regulate interstate commerce. Congress has others powers, of

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course, and as the twentieth century proceed, one in particular become increasingly important.
Congress has the power to lay and collect taxes and provide for the common defence and general
welfare of the United States.

The growth of the national government and especially the adoption of the 16th amendment
(1913) authorizing congress to collect an income tax opened up the possibility of a more
vigorous use of the taxing and spending powers. Their most important implications for the
divisions of effective governing power between the states and the national government came
from conditional spending programs. In light of the national governments fiscal resources the
conditional spending power has become almost as important a tool for centralizing governing
authority as the commerce clause. And the court has shown no interest in developing serious
limitations on the conditional spending power.

Supreme Court Perspective on Federalism

1. Texas v White

Chief Justice Salmon p. held that “The union of the states never was a purely artificial and
arbitrary relation. It began among the colonies and grew out of common origin, mutual
sympathies, similar interest and geographical relations”

2. Hammer v Dagenhart

Justice William r. Day explained that “In interpreting the constitution, it must never be forgotten
that the nation is made up of states to which are entrusted the power of local government. And to
them and to the people in the powers not expressly delegated to the national government are
reserved”

3. Garcia vs. San Antonio metro transit authority

Justice Harry Blackmun explained that “apart from the limitation on Federal authority inherent in
the delegated nature of congress article I powers the principal means chosen by the framers to
ensure the role of the states in the feudal system lies in the structure of the federal government
itself”

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 4. Chisholm vs. Georgia

The U.S. Supreme Court rendered its first major constitutional decision in 1793. It deals with
state soveignity. An essential aspect of sovereignty in the Anglo- American tradition has been
sovereign immunity. As previously noted article III of the constitution granted to federal courts
jurisdiction over controversies between a state and citizens of another state.

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Canada

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 Introduction

Origin of Federalism in Canada

Trough a constitution in 1867, Canada became a federation under the British crown. The factor
effecting federalism in Canada the most is the two linguistic groups and the ethnical diversity.
Canada has two official languages, French and English. English is the mother tongue of more
than 60% of Canadians and French of about 24%, mostly concentrated in Quebec. Since
Canada’s settlement and growth have depended heavily on immigration; approximately 14% of
Canadians have other mother tongues. In 1991, almost 1 million people in Canada reported
having some aboriginal origins. The problems when it came to keeping the federation together
were increasing in the 1960 when the demands for independence were growing in Quebec. The
question now was if the province would leave the federation or if the federal institutions could
change in a way that the country could be kept together. Canada then went from being a
centralized federation to becoming a more decentralized one, were more power was given to the
different states. Quebec then decided to stay within the union; however, the fight for an
independent Quebec is not over in Canada.

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Models of Federalism

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Introduction:

A common basis and main principles represent the standard according to which federal
communities differ from other types of political communities, particularly from the centralized
and unitary system. Four basic models of federalism can be quoted, namely:

 the French model (centralist)

 the German federal model (parliamentary federalism)
 the Swiss model (collegial structure of federalism), and
 The American model (presidential federalism).

When talking about the European federalism, after all, we should also mention some facts on the
experience of the United States of America and its contribution to the development of federalism
in the world, in particular, since the American experience and practice have served as an
authoritative frame from the beginning, if not even a model. This so-called “presidential
federalism” in which the role of the president of the USA is weighty and in which there is a
strong personalization of governance and an overemphasized separation of legislature and
executive, i.e. of legislative and executive powers, is a highly significant model in the process of
today’s globalization in which the United States of America assume a key role. Today, the
impression emerges as if in the political life of America the search for a balance between federal
government and the government of the constituent states were the most important thing. In this
regard the Supreme Court is of particular importance, especially due to the fact that the Supreme
Court exerts constitutional control over the activities of legislative powers. From this it follows
that this Court has a key role and a decisive influence on the institutions of government, as well
as on the safeguarding of a balance between the governments. Yet, it must be emphasized that,
compared to the Supreme Court of the USA, the European Court of Justice has the tendency to
carry out a similar influence in the system of the European Union, given that this Court of law
has created the jurisdiction system of the Community. For instance, the European Court of
Justice has developed its competence particularly in the field of the contracts, whereas the
solution of social problems chiefly remains with the courts of the nationstates of the Member
States.

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 Structure of Federalism

Most studies of federations recognize three broad types:

1. The Westminster model,

2. the republican-presidential model and a
3. Hybrid mixture of both types.

The Westminster model, based on representative and responsible parliamentary government,

applies in particular to Canada, Australia and India – as former parts of the British Empire –
while the republican-presidential model is most closely associated with the USA.

Hybrid examples that combine various elements of these two models include Germany, Austria
and Switzerland while Belgium with its constitutional monarchy and cabinet government
responsible to a lower house, the Chamber of Deputies, might be considered closer to the
Westminster model than the republican-presidential type.

These groups of comparisons work well from the standpoint of internal structures, but we also
have to consider how they would change if we adopted another perspective, namely, the question
of the distribution of powers in federations.

As Ronald Watts has pointed out, the basic design of all federations is to express what Daniel
Elazar called ‘self-rule plus shared rule’ via the constitutional distribution of powers between
those assigned to the federal government for common purposes and those assigned to the
constituent units for purposes of local autonomy and the preservation of specific identities and
interests. And it should be noted that the division of powers and competences can be organized
on a territorial and a non-territorial basis.

In federal systems there are always at least two orders of government, whose existence is firmly
entrenched in a written constitution that is subject to specific amendment procedures and judicial
review. And the specific form and allocation of the distribution of powers have always varied
according to the specific circumstances of each federation.

24
 The United States of America

The modern element in the democratic revolution of the late eighteenth century was the principle
that individuals are the basic units in the constitutional order of human societies, ‘one of the most
fundamental theorems in a political science’. This is also true for other societies that crossed the
divide between pre-modern and modern political structures, but only the USA managed
successfully to combine federalism and democracy. Even here, however, this combination did
not succeed immediately; it became a political reality only after the Civil War, 1861–65.
Consequently federalism came to be associated with ‘the accommodation of diversity’ only after
the threat of secession in the ten southern states had been crushed by force in a bloody civil war.

From Tocqueville to the recent debates about changes of governance in the National
Performance Review, an important feature of the American federal model is the fact that it is a
system of government ‘in which a serious effort has been made to come to terms with the
possibility that people might, in some significant sense, “govern” and to avoid presuming that
“the government” governs’. The USA is still more ‘classically liberal (libertarian), distrustful of
government, and populist. It gives its citizens more power to influence their governors than other
democracies, which rely more heavily on unified governments fulfilling economic and welfare
functions’. It is this political culture that allows it to sustain a strong, asymmetrical federal
system with a weak representation of the states in the national decision-making process, a point
to which we shall return later.

Federal democracy was instrumental in strengthening citizen input while simultaneously

buttressing the system of checks and balances of a political system united by the division of
labour between federal, state and local levels of government. Administration was originally
implemented at state and local levels while a weak vertical and horizontal cooperation among the
states and between them and the federal government gradually evolved. The classic federal
political system has therefore been essentially a non-centralised system. And it also furnished the
basis for ‘an alternative to a theory of sovereignty’. This distinctive feature of American
federalism, however, gradually gave way in the light of pressing economic and social problems
to national solutions that prompted the USA to develop a nationwide capacity for regulation that
was sustained by new mandates, preemption and the emergence of a ‘professional bureaucratic
complex’ as a form of representational federalism.

25
 Europe: France and Germany

While the feudal monarchies of France and England consolidated during the late medieval and
early modern era into states with a high degree of political unity, the feudal system of Germany
disintegrated into a loose association of states. ‘The hard core of statehood in Germany over
centuries was with the “Länder”, regions and states’. This geopolitical pattern characteristic of
Germany was interwoven with two principal features.

 First, the long-standing weakness of democratic forces (the so-called commercial or

middle-class bourgeoisie) meant that Germany’s late take-off on the path of modernity
ensured that it would also be a latecomer to the liberal tradition of politics.
 Second, the nation-building of 1871 (the Franco–Prussian War) resulted in a
monarchical-hegemonic imperial federation that was not only highly asymmetrical but
also failed to combine federalism with democracy or republicanism as it had in the USA.

In consequence, the political system was based upon an executive federalism without strong
legislatures but with procedures and institutions that facilitated the processing of outputs between
the powerful bureaucracies of the constituent states and the empire. The German path to modern
federalism therefore ensured that the discussion of the federal structure would follow the lines of
weak democratic institutions and strong administration in a setting in which nationalist values
had a strong impact on state and society. After the end of the imperial federation of the First
World War, the relatively short interlude of the Weimar Republic, 1919–33 and the centralized
dictatorship of the Third Reich, 1933–45, the concepts of federalism and federation were among
the prime features of the new post-war West Germany and were institutionalized in the Basic
Law (Das Grundgesetz) in 1949. Three components in particular formed the structural basis to
the new federation (Bundesstaat):

1. The distribution of tasks was delineated along with the new competences.
2. The second chamber (Bundesrat) represented the lander governments that had in
consequence a powerful position in the central (federal) decision-making process.
3. The Bundesstaat incorporated a strong vertical and horizontal cooperation.

Although much criticized, the German federal system worked effectively even during periods in
which different majorities controlled the lower chamber (Bundestag) and the second chamber

26
(Bundesrat) A different path to modernity was followed by France, where a strong absolutism
had already curbed the powers of the estates and intermediate governments. When representation
became an issue it occurred within the framework of the national state.

The Swiss model

This rational concept of national centralist representation finds a strong contrast in Switzerland.
Historically the Confederatio Helvetius is referred to by German speaking Swiss as an
Eidgenossenschaft (oath-fellowship), the non-hierarchical elements in it constituting an
association bound together by reciprocal oaths. Genosse is an equal, a comrade, a covenanter.
Typically Bodin referred in 1576 to the obvious lack of a sovereign supreme power and drew the
inevitable conclusion that the Eidgenossenschaft was not actually a Staat at all. The
consolidation of Switzerland into a federation in 1848 – after the example of the USA – followed
the Sonderbund Civil War of 1847 in which the Catholic cantons were defeated by their
Protestant neighbors and was itself consolidated in the general constitutional revision of 1874.
One notable hallmark of the federal constitution was to leave sovereignty with the cantons but
within the framework of the federal constitution, a feature that prompted Christopher Hughes to
describe Swiss federalism as ‘cantonalism’. Other significant cantonal traditions are their
republicanism, participatory (direct) democracy and the voluntarism of the Milizsystem (citizen
militia system) that together are still to this day tied to a strong sense of territorial identity
buttressed by linguistic distinctiveness.30 One further dimension that is so characteristic of the
Swiss model of federalism and federation is its highly developed mechanisms and procedures of
consociationalism as a mode of socio-political consensus creation, known generally as the
konkordanz (concordance) system, aligned with the power-sharing enshrined in the federation.
This is very similar to the highly interwoven German system of ‘cooperative federalism’,
especially since the constitution leaves the federal government largely dependent upon the
cantons for the administration of most of its legislation. In consequence, Germany, Austria and
Switzerland furnish the empirical basis for a comparative study of the Germanic tradition of
federalism and federation in Western Europe with a sharp focus upon administrative-executive
structures.

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 The Westminster model

The emergence in the nineteenth century of so-called ‘parliamentary federalism’ had its origins
much earlier in the British imperial tradition which stretched back to the eighteenth century. The
first country to introduce what later came to be known as the ‘Westminster model’ of federation
was Canada in 1867 followed by Australia in 1900 and India in 1950. In each case the formation
of parliamentary federalism occurred as part of the larger process of British imperial
decentralisation, later described as decolonisation, and was an attempt to reconcile the
seventeenth-century notion of ‘parliamentary sovereignty’, involving a fusion of executive and
legislative powers, with the idea of a basic territorial dispersion of power. The model has worked
effectively in Canada and Australia, furnishing the basis for stable and responsible government,
but it is flawed in the extent to which its adversarial nature and majoritarian thrust can equally
serve to exclude territorial minorities, leading in the case of Canada–Quebec relations to
dissonance and even de-legitimisation. The problem of representation therefore has been the
source of many different and largely unsuccessful attempts at constitutional reform including the
electoral system, the Senate and the constitutional amendment procedures themselves.

In some significant respects the Westminster model falls somewhere between the American and
the Continental European versions of democratization. While the American federal experience
emphasized the sovereignty of the people rooted in the written constitution and the Continental
European federal tradition identified it with the state, the British (often mistakenly called Anglo-
Saxon) tradition channeled it through Parliament.

Moreover, the Westminster model emerged from a British political tradition in which local elites
forged pragmatic alliances with the central authority in London and were able successfully to
retain considerable relative autonomy. This was also one reason why London never built up a
strong administrative base very early on in the state-building process to implement and enforce
central imperatives. Territorial management of the periphery was essentially cooperative and
consensual. If we now summarise the discernible patterns of representation that emerge from our
four developmental models, we can identify the following broad trends:

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  The modern concept of representation is very closely interwoven with the representation
of individuals and the expression of a national authority by and through the
representatives of the people. This basic feature is shared by all four models.
 The concept of sovereignty in the Continental European federal tradition is identified
with the state, in the USA with the sovereignty of the people in the written constitution,
and in the Westminster model in Parliament.
 The framework of the nation(al) state, so decisive for the modern theory of
representation, presses for a solution to the nation-building process that is centralist
(Jacobin–Marxist), unitarian with strong intergovernmental structures such as in
Germany and Canada, or a ‘polyarchy’ as in the USA.

This shortlist also underlines what we might call a ‘path dependency’ of federations. More than
any other socio-political concept formation, federalism and federation are replete with historical
irregularities and do not conform to the more conventional geometric view of politics, political
development and spatial relations. If we look at the big picture in the USA, the line of evolution
is, roughly speaking, first, democracy (popular representation), then industrialisation (common
market) and, in turn, bureaucracy (regulatory/interventionist national state). In Continental
Europe, by way of contrast, it is bureaucracy that is the departure point followed by democracy
in France and also much later in Germany. The delineation of our four models points up the very
different historical processes of state-building and national integration that help to explain how
and why the concept of representation evolved in different ways in different federal traditions.

Types of Federalism

1. The Dual Federalism & Cooperative federalism

Federal countries broadly conform to one of two models: dual federalism or cooperative
federalism.

Under dual federalism, the responsibilities of the federal and state governments are separate and
distinct. The working of the federations of Australia, Canada, India, Pakistan, and the United
States resembles the coordinate authority model of dual federalism.

29
According to William H. Riker, under such a system, “two levels of government rule the same
land and the people, first, each level has at least one area of action in which it is autonomous, and
second there is some guarantee … of the autonomy of each government in its own sphere. Under
cooperative federalism, the responsibilities of various orders are mostly interlinked.

Under both these models, fiscal tiers are organized so that the national and state governments
have independent authority in their areas of responsibility and act as equal partners. National and
state governments often assume competitive, non-cooperative roles under such an arrangement.
Dual federalism takes either the layer cake or coordinate-authority approach.

Under the layer-cake model, practiced in Mexico, Malaysia, and Russia, there is a hierarchical
(unitary) type of relationship among the various orders of government. The national government
is at the apex, and it has the option to deal with local governments either through state
governments or more directly. Local governments do not have any constitutional status: they are
simply extensions of state governments and derive their authority from state governments. In the
coordinate-authority model of dual federalism, states enjoy significant autonomy from the
federal government.

Moreover, the cooperative federalism model has, in practice, taken three forms:

1. Interdependent spheres,
2. marble cake, and
3. Independent spheres.

In the interdependent spheres variety as practiced in Germany and South Africa (a unitary
country with federal features), the federal government determines policy, and the state and local
governments act as implementation agents for federally determined policies. In view of federal
domination of policy making, in this model, state/provincial governments have a voice in federal
policy making through a second chamber (the upper house of the Parliament). In Germany and
South Africa, the second-order (state) governments are represented in the upper house of the
national parliament (the Bundesrat and the Council of the Provinces, respectively).

In the marble cake model of cooperative federalism, various orders of government have
overlapping and shared responsibilities, and all constituent governments are treated as equal

30
partners in the federation. Belgium, with its three territorial and four linguistic jurisdictions, has
a strong affinity with this approach.

Finally, in a model of co-operative federalism with independent spheres of government, all

orders of government enjoy autonomous (independent) and equal status and coordinate their
policies horizontally and vertically. Brazil is the only federation practicing this form of
federalism. ]

Under this model, the national government places its superior resources at the disposal of state
and local governments for management of national priorities. All levels work within an intricate
framework of co-operative relationships while the national government plays the role of leader
and facilitator. Cooperative federalism can tilt towards the coercive type if the higher level of
government coerces the lower level to action in the name of the national interest or welfare of the
citizens. It can lean towards uncooperative federalism if lower levels resist national intervention
and assert autonomy. Theoretically, the cooperative framework preserves the structural integrity
of each level of government while enabling them to exercise their autonomous powers in a
cooperative manner.

However, what remains behind the veil is the “assumption” that states are cooperative servants
and allies of the federal government. The hierarchical relation as envisaged in executive
federalism persists because the task of states is not to assert autonomy but to carry out federal
programmes and implement federal mandates. Any assertion of autonomous policymaking
makes them outsiders and challengers, giving rise to the so-called uncooperative federalism. V.

4. The competitive federalism

The competitive federalism model is a theoretical construct advanced by the fiscal federalism
literature and not yet practiced anywhere in its pure form. According to this construct, all orders
of government should have overlapping responsibilities, and they should compete both vertically
and horizontally to establish their clientele of services

Some analysts argue that such a competitive framework would create leaner and more efficient
governments that would be more responsive and accountable to people. Countries with a federal
form of government vary considerably in terms of federal influence on sub national

31
governments. Such influence is very strong in Australia, Germany, India, Malaysia, Mexico, and
Pakistan; moderately strong in Nigeria and the United States; and weak in Brazil, Canada, and
Switzerland. In the last group of countries, national control over sub national expenditures is
quite limited, and sub national governments have considerable authority to determine their own
tax bases and tax rates. In centralized federations, conditional grants by the federal government
play a large role in influencing the priorities of the state and local governments. In Australia, a
centralized federation, the federal government is constitutionally required to follow regionally
differentiated policies. The competitive model is based on the public choice perspective, which
presumes that the government is a self-interested, Leviathan-like entity. Thus, decentralization
must be designed to disarm the huge central government of its monopolistic power to extract
economic rent for itself; in its place, intergovernmental competition and local governmental
accountability to constituents should be promoted. Generally, some forms of competition among
units exist in all nations (e.g., to attract labour and capital).

5. Asymmetric & Symmetric Federalism

“Asymmetric federalism” is understood to mean federalism based on unequal powers and

relationships in political, administrative and fiscal arrangements spheres between the units
constituting a federation. Asymmetry in the arrangements in a federation can be viewed in both
vertical (between centre and states) and horizontal (among the states) senses. If federations are
seen as „indestructible union of indestructible states‟, and centre and states are seen to exist on
the basis of equality; neither has the power to make inroads into the defined authority and
functions of the other unilaterally. However, such „purists‟ view of federalism is rarely, if at all,
seen in practice. Even when the constitution guarantees near equal powers to the states, in the
working on federal systems centre dominates in political, administrative, as well as fiscal
spheres. There is considerable volume of literature on central domination in Indian federalism in
the assignment system in the constitution and central intrusion into the states‟ domains in the
working of the federation.

Federal political systems are consciously and purposively designed to facilitate flexible
accommodation for the much diversity which acquires political salience. This idea of Federalism
leads to the concept of asymmetry. All federations manifest some short of asymmetry which the
federal model is trying to accommodate. In one of the first significant articles on asymmetry,

32
author Charles D. Tarlton addresses the question of asymmetry and its accommodation within
the federal model. Tarlton is one of the opinions that the more symmetrical a federation is, more
harmonious and unified it will be, and vice versa. He suggested that recognizing diversity within
an asymmetrical system is not the best way to eliminate tension, but rather, increased
centralization is necessary. At this point in time, federalism was seen incompatible with
asymmetry as it would not be able to bring stability to the polity.

Charles Tarlton who is credited with having coined the term asymmetrical federalism in 1965
takes a dismissive view of it, as for him, it is prone to secessionism. The Canadian experience
with the Quebec question has brought about a bit of turnaround in the theoretical appreciation of
asymmetrical federalism as asymmetry was impliedly built into the federal constitution-making
in Canada in 1867 (without using the term) and the trajectory of the federalist and sovereignty
debate has brought to the fore the accommodative potential of the device. Federal experiments
elsewhere have supported this line of argument including the Indian case. Michael Burgess
makes a more balanced theoretical statement by suggesting that the accommodative or
secessionist potentials of asymmetrical federal arrangements actually depend on specific cultural
and historical contexts. A flat a priori assertion cannot be made in this regard.

With the federal state defined, we can now explore the idea of Asymmetry within such a system.
Asymmetry can be define in relation to its opposite, symmetry; according to Tarlton symmetry is
“the level of conformity and commonality in the relations of each separate political unit of the
system to both the system as a whole and to the other component units.( Tarlton,1965),symmetry
refers to the uniformity of the system.

Conversely, symmetry denotes the diversity among member states, that which is articulated
politically through component units possessing “varying degrees of autonomy and
power”.(Tarlton,1965). In other words, it is the “extent to which component states do not share
in the conditions and concerns common to the federal system as a whole. (Burgess,2006). While
some short of asymmetry exists in most federal states, the type and extent of asymmetries very,
as well as the conditions that leads to asymmetry.

Asymmetric Federalism Countries with a federal form of governance do not necessarily treat
second orders of government in a uniform manner. They often offer flexibility in accommodating

33
the special needs or demands of constituent units or impose a federal will in certain jurisdictions.
This may take the form of treating some members as less equal than others. For example,
Chechnya in Russia and Kashmir in India enjoy lesser autonomy than do other oblasts and states.
Or the federation may treat some members as more equal than others by giving them wider
powers, as is the case with Sabah and Sarawak in Malaysia and Quebec in Canada. Some
federations offer constituent units freedom of choice to be unequal or more equal than others
through opting-in or opting-out of federal arrangements. Such options are part of the
arrangements offered by Canada, Spanish agreements, and the European Union’s treaty
exceptions for the United Kingdom and Denmark.

However, while transparent asymmetric arrangements that can be justified on grounds of overall
gains to the federation contribute to the nation building, the discriminatory policies followed
purely on short term political gains can be inimical to the long term interests and stability of
federalism. The rationale for asymmetry arises from the premise that inter alia, federalism is a
rational bargain of various units. Thus, the terms of joining the federation depend on the
bargaining strength. Further, even in a federation with no provision for exit, political alignments
determine the bargaining strength of governments at different units in their interaction with
center and this may result in discriminatory treatment of various units. The potential for
discrimination is higher in more centralized federations and is inversely related to the political
strength of the central government vis-à-vis the various regional governments.

If one or more regions within a federal state are vested with special powers not granted to other
provinces one also refers to this as “symmetrical” or “regional autonomy”. The federal model
may be regarded as unnecessary if the need is to accommodate only one or two minority groups.
In these situations, special powers may be devolved only to that part of the country where the
minority constitutes a majority; these powers are exercised by regional institutions. Ghai stresses
in contrast to the liberal theory based on the assumption of equality of all individuals,
“asymmetric autonomy acknowledges the unevenness of diversities and opens up additional
possibilities of awarding recognition to specific groups with special needs or capacities, such as
[…] a minority linguistic group”.

The comparative political experience of all multinational federations, with the possible exception
of Switzerland, suggests that some degree of constitutional asymmetry is essential for

34
establishing enduring federal unions in the contemporary world today. India, Belgium, Canada
are cases in point in this context. These are the major examples of reasonably well-functioning
asymmetrical federal democracies today.

6. Multi-Level Governance

This is a concept that was initially formulated for and directly applied to the European Union, the
unique new supranational governance form that has evolved in Europe since the signing of the
Maastricht Treaty in 1992.Although the EU is not a classical federation it has many federal
features. It can be described as a supranational organization, with features both of an
international organization, and, increasingly, of a federal system. It has since been popularized
and widely disseminated and applied to other structures that are the objects of study in the
different subfields of political science, including comparative politics, international relations,
public policy and urban politics. As a result, the concept of “multi-level governance” easily
qualifies as among the most important recent “cutting-edge” conceptual contributions to our
discipline.

Bache and Flinders, however, credit Gary Marks with this conceptual innovation. According to
these authors, “Gary Marks (1992) first used the phrase multi-level governance to capture
developments in EU structural policy following its major reform in 1988.They explained that the
emergence of this concept was primarily due to “a new wave of thinking about the EU as a
political system rather than [as] a process of integration…that followed swiftly from the
accelerated deepening of the integration process in the mid to late 1980s.” They also attributed it
to “the agreement to the increased use of qualified majority voting in place of unanimity across a
number of policy areas [that] was the starting point for the treatment of the EU as something
with characteristics more reflective of domestic political systems than international
organizations.”

The multi-level governance approach poses a challenge to nearly all of the established theories of
European integration, but at the same time, it does not completely reject all the assumptions of
these theories. On the one hand, multi-level governance (MLG) shares with neo functionalism
the view that supranational actors and interest groups are important in influencing decisions at
the EU-level.

35
In our view, who may or may not have invented the concept of multi-level governance is of little
importance to political science. What is significant is the fact that it was embraced so rapidly,
widely and enthusiastically by political scientists not only from Europe, but elsewhere in the
world. It is best understood as a natural evolution of an increasingly complex pattern of policy-
making and authoritative decision-making in today’s more tightly integrated and globalized
world. It is also manifested clearly in a shift in political analysis from statist and hierarchical
models of decision-making to no statist, shared or cooperative models, which are associated with
what has been termed as “the turn to governance”.

7. Market Preserving Federalism:

Market Preserving Federalism Barry Weingast has advanced a theoretical concept for
comparative analyses of federal systems.(Barry Weingast, 2006)Market-preserving federalism is
put forth as an ideal form of federal system in which

 multiple governments have clearly delineated responsibilities;

 subnational governments have primary authority over public goods and services for local
autonomy;
 the federal government preserves the internal common market;
 all governments face the financial consequences of their decisions (hard budget
constraints); and
 Political authority is institutionalized.

8. Confederal Government

In a confederal system, the general government serves as the agent of the member units, usually
without independent taxing and spending powers. The United States had a confederal system
from 1781 to 1787. The United Nations, the European Union, and the Commonwealth of
Independent States, which now consists of 11 of the former republics of the Union of Soviet
Socialist Republics (USSR), approximate the confederal form of government. A confederal
system suits communities that are internally homogeneous but, as a group, completely
heterogeneous. The European Union, however, over time has consistently moved to assume a
federal role.

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 9. Judicial Federalism

Judicial Federalism is the ability of the Supreme Court and judicial review to influence the type
of federalism during a certain era, mainly because of their ability to rule on whether something is
constitutional or not. This ability invested in the Supreme Court allows the court to decide where
the power of government goes; either to the state or to the central government. The members of
the Supreme Court can allocate where the power goes, based on their view of the constitution
and how they choose to rule a matter

10. Fiscal Federalism

Fiscal Federalism is the usage of funds from the federal government to the states in order to
support a national program. A prime example of fiscal federalism are categorical grants, in which
the national government gives states money with requirements attached. Fiscal federalism, and
how it is applied, like judicial federalism, can have a great impact on the type of federalism
present during that time. The manner in which the money is distributed can shape the federalism
in that era. As previously mentioned, unfunded mandates and block grants are other ways in
which fiscal federalism can be represented.

Essential Features of a federal polity

I. Supremacy of the Constitution:

A federal State derives its existence from the Constitution, just as a corporation derives its
existence from the grant by which it is created. Every power- executive, legislative, or judicial,-
whether it belongs to the federation, or to be component States, is subordinate to and controlled
by the Constitution.

II. Dual Government:

While in a unitary State, there is only one government, namely the national Government, in a
federal State, there are two Governments, the national or federal Government and the
Government of each component State.

Though a unitary State may create local sub-divisions, such local authorities enjoy autonomy of
their own but exercise only such powers as are from time to time delegated to them by National

37
Government and it is competent for the national Government to revoke the delegated powers of
any of them at its will.

A federal State on the other hand, is the fusion of several States into a single State in regard to
matters affecting common interests, while each component State enjoys autonomy in regard to
other matters. The component states are not mere delegates or agents o the federal Government
but both the federal and the State Government draw their authority from the same source, viz, the
Constitution of the land. On the other hand, a component State has no right to secede from the
federation at its will.

III. Distribution of Powers:

It follows that the very object for which a federal State is formed involves a division of authority
between the federal Government and the States. This is what Prof. WHEARE (f.n…..-
WHEARE, Federal Government, 2nd Ed., 11;28.)describes as the ‘federal principle’, i.e., “the
method of dividing powers so that the General and Regional Governments are each, within a
sphere co-ordinate and independent.” While in a unitary state, the demarcation of powers
between the Central and local Governments is made by the Central Government and is alterable
by itself, in a federal State, this demarcation is mede by the written Constitution which is source
of authority of both the Governments and it can be altered only by amendment of that organic
instrument.

IV. Authority of Courts:

In a federal state the legal supremacy of the Constitution is essential to the existence of the State.
It is essential to maintain the division of powers not only between the co-ordinate branches of the
Government, but also between the central government and the state themselves. This is secured
by having in the Courts (f.n------an exception to the general rule is furnished by the Switzerland
where the federal Supreme Court has no power to guard the constitution as against the federal
legislature) a final power to interpret the Constitution and to nullify any action on part of the
Federal and State Governments or their different organs which violates the provisions of the
Constitution.

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India

39
 Introduction:

The Constitution of India provides for a federal polity in India, even though the word “Federal”
is not found anywhere in the Constitution. Article l (i) of the Constitution says,

“India that is Bharat, shall be a Union of States.”

While submitting the Draft Constitution B. R. Ambedkar, Chairman of the Drafting Committee
had used the term “Union” because of certain advantages. These advantages as explained by B.
R. Ambedkar in the Constituent Assembly indicated two things.

 Firstly, the Indian Federation is not the result of the agreement by the units.
 Secondly the component units have no freedom to secede from it.

The federal polity of India goes back to the British period. This is because the Indian Federal
System originated in terms of its Constitutional provisions in the Government of India Act, 1935,
to enhance its political thrust, as per the demands of the Indian freedom movement, for a Pan
Indian Central Government capable of reconciling with regional pulls and pressures.

Development of Federalism in India

The foundation of India’s present day federal system is found in the government of India acts of
1919 and 1935. In the Act of 1919, it was for the first time the state and central subjects were
separated from each other for legislative, financial and administrative purpose. The Act of
1935 was a ancestor for the federal state which eventually became a part of the constitution of
India in 1950. According to the Act of 1935 the Indian Federal state will consist of both the
British Indian provinces and the princely states. It was designed to establish a centralized
federation with a fair amount of provincial autonomy. The unified legal and financial system,
machinery for the resolution of water disputes, governors for the state and Article 356 are also
some of the distinctive features of the constitution today that we owe to the act of 1935.

In the Reforms Enquiry Committees, 1924 indicated the grant of responsible Government in the
provinces was prominent in the minds of the Indian leaders. Later, the Committee appointed by
the All Parties Conference in 1928 recognized the possibilities of introducing a Federation and
observed that,

40
“We have borne in mind the peculiar position of India and have provided for the development of
the fullest possible provincial life compatible with national interests. The limits we have
provided for provincial activities and functions are very wide and within these limits provincial
Governments will be masters within their own houses, free from the control of the central
Government.”

The Simon Commission which was published in May 1930 recommended complete autonomy in
the provinces including the department of law and order, the Governor on the administrative side
to be given overriding powers in certain matters like internal security. The Commission also
recommended federal government at the centre which included not only British India but also
princely states. The Nehru report also projected the future Constitution of India as Federal and
suggested a bicameral system of legislation with Supreme Court as the highest Court of appeal.

The adoption of the Government of India Act, 1935 as the basis of the new Constitution had the
great advantage of making the transition from British rule to the new Republic of India without
any break with the past; the old laws and constitutional provisions continued without a break;
and thus secured for India the advantage which an evolutionary change has over a revolutionary
break with the past. Besides, the Government of India Act, 1935 had great merits as an
instrument of federal government.

The Cabinet Mission 1946 certified the plan for a Central Government which has much less
power and the provinces were granted high level of independence along with residuary powers.
Despite recommendations for a weak Centre, the constitution makers finally adopted a federal
system that was strongly in favor of more powers to the centre because of the experiences of
partition and future consideration for maintaining unity and integrity in the country.

After attaining independence, the Constituent Assembly was set up under the Chairmanship of
Dr. Rajendra Prasad to draft the Constitution for the country. B. R. Ambedkar was the Drafting
Committee Chairman. The Constituent Assembly began its proceedings in 1946 with the idea of
setting up a minimal federation with a weak centre, suddenly went to the other extreme and tried
to establish a maximal federation with a strong Centre that was due to partition. The Constituent
Assembly enacted a Constitution in the backdrop of the struggle for national independence and
the unique problems faced by the country. These problems had to be resolved pragmatically. The

41
Constituent Assembly pursued the policy of pick and choose to see what suited the nation best
and produced a new kind of federalism to meet India's peculiar needs.

Moving the Draft Constitution for consideration in the Constituent Assembly, B. R. Ambedkar
said that “Federation means the establishment of a dual polity with the Union at the Centre and
States at the periphery, each endowed with sovereign powers to be exercised in the fields
assigned to them respectively by the Constitution.”

Even though some members of the Constituent Assembly did not favor federalism for an
independent India, most of them supported it because federalism being a dynamic concept, it was
felt that it would easily adjust with the then existing situation in a vast and diversified country
like India. Also the popularity of federalism and its desirability by most plural societies made the
framers of the Constitution to favor the federal structure. As James Bryce rightly puts it,

“The true value of a political contrivance resides not in its ingenuity but in its adaptation to
the temper and circumstances of the people for whom it is designed.”

In December 1946 Jawaharlal Nehru moved the Objectives Resolution which proposed a federal
system with resemblance of the traditional view. The Objectives Resolution was agreed by the
Constituent Assembly in January 1947. But certain developments, including the partition of the
country, the Kashmir problem, rebel activities by the Nagas and Mizos, and the emergence of
disruptive forces changed the attitude of the framers of the Constitution. These unavoidable
circumstances dictated the course of proceedings in the Constituent Assembly. On one hand the
founding fathers were impelled towards a true federation. On the other hand they wanted to
strengthen the fragile edifice of a nation with its unity and integrity intact. Therefore, their
judgment was in favor of a strong Centre.”

The debate in the Constituent Assembly clearly indicates that the framers of the Constitution
opted for the primacy of the Centre, arming it with powers to deal with centrifugal and
fissiparous tendencies threatening the country's unity and sovereignty, emergencies affecting
national security and financial solvency.

Both the Union Constitution and the Union Power Committees under the Chairmanship of Nehru
recommended a centralized federal model. The Chairman of the drafting committee, B. R.

42
Ambedkar, initially did not favor federalism and refused to insert the word “federal” as
demanded by some members. In November 1948 he said,

“what is important is that the use of the word “Union” is deliberate, the federation is 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 integrated whole its single people
living under a single imperium.” Finally the pattern that emerged was a federal system with a
strong Centre to suit India's needs.

Nature of Federalism in India

Federalism has been established in India by reorganizing a Unitary State rather than by a contract
or agreement between a number of former sovereign and independent States. The federation is a
permanent and unbreakable Union. Due to this reason, the use of the term federation has been
deliberately avoided by the framers of the Constitution. Many members in the Constituent
Assembly including H. V. Kamath, Damodar Swamp, K. M. Munshi, Kengal Hanumanthaiah
attacked the Centre oriented federalism that was adopted.

 H.V. Kamath characterized it as “a centralized federation with a facade for parliamentary

democracy”.
 Damodar Swamp called it “a unitary Constitution in the name of a federation.”
 K.M. Munshi also expressed similar view.
 Kengal Hanumanthaiah who represented the Princely State of Mysore remarked, “There
is a Constitution which we say is a federal Constitution but which in essence is almost a
Unitary Constitution .... That was not the intention with which we started Constitution
making.”

Political scientists and Constitutional pundits have viewed India’s Constitution as “Sui generis”,
neither fitting into the classical mould of a genuine federation nor conforming to the criteria of a
Unitary system. Some have called it as “quasi-federal”, others holding it to be federal in
intention and Unitary in practice. Various others have called it as “Administrative Federation”,
“Cooperative Federalism”, “Organic Federalism” and “Territorial Federation”.

43
According to K. C. Wheare “India is a Unitary State with subsidiary federal features rather than
federal State with subsidiary unitary features.” In his later work in Modem Constitution, K. C.
Wheare maintains that, “In the class of quasi federal Constitutions, it is probably proper to
include the Indian Constitution of 1950.”

Expressing similar view S. P. Aiyar maintains that, “a new and more mature form of
Governmental organization is evolving which is certainly not federal but which can be described
as Quasi federal.

Another expert Sir Ivor Jeimings emphasized that, “India has a federation with a strong
centralizing tendency. Taking a similar stand, Asok Chanda observed that, “India is not a federal
State. In the final analysis it is a Unitary State in concept and operation.” Durga Das Basu holds
that, “the Constitutional system of India is basically federal, but of course with striking Unitary
features.”

The above views expressed by scholars are based on some of the Articles of the Constitution
which give overriding powers to the Central Government leading to the impression that the
Centre is very strong.

Federal Features of the Indian Constitution

The Constitution of India presents a modified form of federation suitable to the special
requirements of the Indian society. But all the essential features of a federal polity are present.
They are discussed here.

1. The Lengthiest Written Constitution:

The first essential feature of a federal system is a written Constitution. It defines the structure,
organization and powers of the Central as well as State Governments. This will enable the
Central and State Governments to operate within their respective spheres without interfering in
each other’s jurisdiction. India is the largest democracy and its Constitution is the lengthiest and
bulkiest in the world. The original Constitution contained 395 Articles and 8 Schedules. After
subsequent amendments, the Constitution, as it stood on 31.1.1997, contained 443 Articles and
12 Schedules.

44
 2. Distribution of Powers:

Like in any other Constitution, the Indian Constitution also distributes powers between the Union
and the States. The Constitution enumerates the matters with respect to which the Union
Parliament has exclusive power to make laws. This is known as the Union List. It contains 97
items of national importance such as foreign affairs, defence, atomic energy, railways, foreign
exchange, coinage and currency, shipping and navigation, posts and telegraphs, citizenship,
imports and exports, etc. The Union Parliament has exclusive power to make laws on these
subjects. The Constitution enumerates the subjects with respect to which the Legislatures of the
States have exclusive power to make laws. This has been designed in the Constitution as the
State List. It contains 66 items.

Some of the items in the State List are public order, police, prisons, health and sanitation, local
Government, education, land and agriculture, trade and commerce within the State, relief of
disabled persons. State property etc The Legislatures of the States have exclusive power to make
laws on subjects enumerated in the State List.

The Concurrent List contains 47 items like marriage and divorce, criminal procedure, social
security and social insurance, price control, relief and rehabilitation, electricity, newspapers,
welfare of labour, adulteration of foodstuffs etc. Both the Union and the State Governments
possess the right to legislate on the items contained in the Concurrent List. However, in case of a
clash between the Central and State laws, the will of the former prevails. The residuary powers
have been vested by the Constitution in the Central Government.

3. Dual Government:

India possesses a dual Government. Both the union and the State Governments are substantially
independent of each other. Both the Governments have full sovereignty over a field allotted to
them. Article 1 of the Constitution says that India is a Union of States. It clearly indicates that the
units of the Union have also certain powers as has the Union itself. In the words of Dr.
Ambedkar “the States in our Constitution are in no way dependent upon the Centre for their
legislative authority.

45
 4. Supremacy of the Constitution:

Indian federation derives its existence form the Constitution which is supreme.

 In the first place, the Constitution of India is a single document providing for the
Constitution of both the Union and the States and thereby assuring maximum uniformity.
 Secondly, the Constitution is rigid in the sense that it requires special procedure for
amendments of such provisions which are of federal importance.

The Constitutional amendments may be divided into two categories - the amendment of
provisions other than provisions of federal importance and amendment of those provisions which
bear federal significance. In the case of the former, the Parliament may unilaterally amend the
Constitutional provisions. Bills to the above purpose may originate in either House of the
Parliament and have to be passed by a majority of the total membership of each House as well as
by a majority of not less than two-thirds of the members of each House present and voting. The
Constitution maintains rigidity in amendment of provisions which relate to federal character.
This is because in addition to a majority of total membership of each House and a majority of not
less than two-thirds of the members of each House present and voting, it is also necessary that
before the Bill is presented to the President for his assent, it has to be ratified by the Legislatures
of not less than one half of the States by resolutions.

 The third consequence of the supremacy of the Constitution lies in the fact that every
legislature be it Union Parliament or State Legislatures is the creature of the Constitution
of India and its powers, rights, privileges and obligations have to be found in the relevant
Articles of the Constitution. If the Legislatures go beyond the respective fields assigned
to them by the Constitution, such actions are liable to be struck down by the Courts in
India.
5. Authority of Courts:

The legal supremacy of the Constitution and division of powers in India are protected by the
authority of courts. It involves two related matters. Firstly, the judiciary can prevent the Federal
and State Governments form encroaching upon each other's power and declare laws made by
them as ultra virus on the ground of excess of power. Secondly, the Supreme Court of India is

46
constituted as a judicial body independent of both the national and State Governments, with the
authority to say the last word in matters involving Constitutional interpretation.

A Federal Structure with Unitary Features

Since the framers of our constitution sought to combine the best features of different
constitutional system in the word and to avoid the vices inherent in any particular system, they
had naturally, to affect a compromise between opposite theories and models on several vital
points. One of these is combination of a federal structure with unitary features.

There has been much controversy among the scholars as to whether the system of polity
introduced by the Indian Constitution is ‘federal’ or not. The Drafting Committee described the
Constitution as ‘Federal in Structure’ but they preferred to call it a ‘Union’ to indicate two
essential features of Indian federalism, namely,

 That the Indian federation is not the result of an agreement by the units and
 That the component units have freedom to secede from it.

The label used by the makers of the Constitution is not, however, conclusive on the question
whether the polity introduced by it may legitimately claim to be classified as federal: we have to
examine the relevant provisions of the Constitution itself, with reference to the standards which
are applied by the political scientists to classify the political system as unitary or federal.

47
Government of India Act, 1935

&

Its Federal Features

48
Introduction:

Indian federalism is the product of an evolutionary process which has transformed a highly
centralized political system into a decentralized one under which the constituent units - the
“States” as they are called - enjoy autonomy in a certain sphere specified by the Constitution.
The process went on for a period of nearly eight decades from 1861 onwards during the latter
half of the British rule. It gave the system a federal form under the Government of India Act of
1935/ which had its own special features and much of it was retained m the Republican
Constitution framed by the Constituent Assembly of India during the years 1946-49. It is/
therefore, necessary to refer briefly to the history of decentralization and the formation of the
federal system in the days of the British rule, if one is to understand the nature of Indian
federalism.

The Features of Government of India Act, 1935

1. The Federal Scheme:

While under all the previous Government of India Acts, the Government of India was unitary,
the Act of 1935 prescribed a federation, taking the provinces and the Indian state as units.

Under the pre-existing unitary system the provinces were under the Administrative as well as
legislative control of the central government from whom their authority was derived. Though
under the Government of India Act, 1919, the Provincial executive exercised powers over a wide
field and was responsible to the Provincial Legislature matters, the essence of the political
system was:

“A unitary and centralized government with the Governor-general in the council as the keystone
of the whole constitutional edifice, and it is through the Governor-general in council that the
secretary of state and the Parliament discharge their responsibilities, for the peace, order and
good Government of India.”

In short, throughout the British rule and in spite of the reforms introduced by the Government of
India Act, 1919, the Central Government remains the agent of the Secretary of State who was
responsible to the British Parliament and the provinces derived their authority by devolution
from the Central Government.

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The Indian States, which were ruled by hereditary Chiefs, enjoyed various degrees of internal
sovereignty, but were controlled by the Governor-General so far as their external relations were
concerned and even in internal affairs, the Governor-General, as the vice Roy or representative
of the Crown, held a reserve of power to interfere in cases of maladministration and the like, by
virtue of the crown’s suzerainty which was conveniently referred to as paramount. The
Governor-General, thus, formed the apex of this highly centralized system.

The Government of India Act, 1935, proposed to unite the Provinces and the Indian States into a
federation under the Crown. So far as the Provinces were concerned, this involved the process of
breaking up the unitary State into a number of autonomous Provinces which were to derive their
authority directly from the Crown (instead of from the Central Government as under the previous
system), and then building them up into a federal structure, in which both the Federal and
Provincial Governments should get definitely demarcated powers by direct delegation from the
Crown. As the Simon Commission put it:

“In any new constitution, in which autonomous Provinces are to be federally united under the
Crown, not only can the Provinces no longer derive their power and authority from devolution by
the Central Government, but the Central Government cannot continue to be the agent of the
Secretary of the State. Both must derive their powers and authority by a direct grant by the
Crown. We apprehend, therefore, that the legal basis of a reconstituted Government of India
must be, first, the resumption into the hands of the Crown all rights, authority and jurisdiction in
and over the territories in British India, whether they were at present vested in the Secretary of
State, the Governor-General in Council, or in the Provincial Government and Administrations:
and second, their redistribution in such manner as the Act may prescribe between the Central
Government on the one hand and the provinces on the other.”

The federal structure envisaged by the Government of India Act, 1935, however never came into
being; for it was optional with the Indian states to join the proposed Federation, and they never
gave their consent.

2. Provincial Autonomy:

Federation never took effect; the Part relating to Provincial Autonomy was given effect since
April, 1937. The Act divided legislative powers between the Provincial and Central legislatures,

50
and within its defined sphere, the Provinces were no longer delegates of the Central Government,
but were autonomous units of Administration. To this extent, the Government of India assume
the role of a federal government vis-a-vis the Provincial Governments, though the Indian States
did not come into the fold to complete the scheme of federation.

The executive authority of a Province was also exercised by the Governor on behalf of the
Crown and not as a subordinate of the Governor-General. The Governor was required to act with
the advice of the Ministers responsible to the Legislature.

But notwithstanding the introduction of Provincial Autonomy, the Act of 1935 retained control
of the Central Government over the Provinces in a certain sphere,- by requiring the Governor to
act, ‘in his discretion’ or in the exercise of his ‘individual judgment’ in certain matters. In such
matters, the Governor was to act without ministerial advice, and under the control and direction
of the Governor General, and, through him, of the Secretary of State.

The Governor General’s power to give directions and the Governor extraordinary powers of
legislation, independent of the Provincial Legislature, also operated as fetters upon the full play
of Provincial autonomy. The Governor had also the power acting in his discretion to make a
proclamation that there was a failure of the constitutional machinery and assumes to himself all
executive and legislative powers in the Province.

3. Diarchy at the Centre:

The executive authority of the Centre was vested in the Governor- General (on behalf of the
Crown), whose functions were divided into two groups:-

 The administration of defense, external affairs, ecclesiastical affairs, and of tribal areas,
was left to the Governor General ‘in his discretion with the help of councilors’, appointed
by him who were not responsible to the Legislature.
 With regard to matters other than the above reserved subjects, the Governor General on
the advice of a ‘Council of ministers’, who were responsible to the Legislature. But even
in regard to this latter sphere, the Governor General might act contrary to the advice so
tendered by the ministers if any of his ‘special responsibilities’ were involved. As regards

51
 the special responsibilities, the Governor General was to act under the control and
directions of the Secretary of State.

But, in fact, neither any ‘Councilors’ nor any Council of Ministers responsible to the Legislature
came to be appointed under the Act of 1935; the old Executive Council provided by the Act of
1919 continued to advice the Governor General until the Indian Independence Act, 1947.

4. Distribution of legislative powers between the Centre and the Provinces:

Though the Indian States did not join the Federation, the federal provisions of the Government of
India Act, 1935, were in fact applied as between the Central Government and the Provinces. The
division of power between the Centre and Provinces is of special interest to the reader in view of
the fact that the division in the Constitution between the Union and the States proceeds largely
on the same lines.

A threefold division was made in the Act:

 There was a federal list over which the federal legislature has exclusive power of
legislation. This list included matters such as External affairs; currency and coinage;
naval, military and air forces; census.
 There was a Provincial list of matters over which the provincial legislature has exclusive
jurisdiction, e.g., Police, Provincial Public Service, and Education.
 There was a Concurrent List of matters over which both the Federal and Provincial had
competence, e.g., Criminal law and procedure; civil procedure; marriage and divorce,
arbitration.

The federal Legislature had, however, the power to legislate with respect to matters enumerated
in the Provincial list if a Proclamation of Emergency was made by the Governor General. The
Federal legislature could also legislate with respect to a Provincial subject if the Legislature of
two or more provinces desired this in their common interest.

In case of repugnancy in the concurrent field, a Federal law prevailed over a Provincial law to a
extent of the repugnancy, but if the provincial law received the assent of the Governor-General
or of His Majesty, having been reserved for their consideration for this purpose, the provincial
law prevailed, notwithstanding such repugnancy.

52
The allocation of residuary power of legislation in the Act was unique. It was not vested in either
of the Central or Provincial Legislature but the Governor-General was empowered to authorize
either the Federal or the Provincial Legislature to enact a law with respect to any matter which
was not enumerated in the legislative Lists.

5. Non sovereign character of the Legislatures:

The Central Legislature was bi-cameral, consisting of the House of Assembly and the Council of
State.

In six of the Provinces, the Legislature was bicameral, consisting of a Legislative Assembly and
a Legislative Council. In the rest of the Provinces, the Legislature was unicameral.

The Legislative powers of both the Central and Provincial Legislature were subject to various
Legislations and neither could be said to have possessed the features of a sovereign Legislature.
Thus, the Central Legislature was subject to the following limitations:-

Apart from the Governor-General’s power of veto a Bill passed by the Central legislature was
also subject to veto by the Crown.

The Governor-General might prevent discussion in the Legislature and suspend the proceedings
in regard to any bill if he was satisfied that it would affect the discharge of his special
responsibilities. Apart from the power to promulgate Ordinances during the recess of the
Legislature, the Governor-General has independent power of Legislation, concurrently with
those of the Legislature. Thus, he had the power to make temporary Ordinances as well as
permanent Acts, at any time, for the discharge of his special responsibilities.

No Bill or amendment could be introduced in the Legislature without the Governor-General’s

previous sanction, with respect to certain matters, e.g., if the Bill or amendment sort to repeal or
amend or was repugnant to, any law of the British Parliament exceeding to India or any
Governor-General’s or Governor’s Act, or if it sort to effect matters as respects which the
Governor Genera was required to Act in his discretion. There were similar fetters on the
Provincial Legislature.

53
 6. The Federal Court:

Consistent with the Federal scheme introduced by the Act of 1935, it set up, for the first time, a
Federal Court for India. The provisions relating to this Federal Court are of great interest in view
of the fact that this Court- was a precursor of the Supreme Court under the Constitution and that
many of the provisions of the Act of 1935 relating to the Federal Court have been substantially
adopted in the Constitution as regards the Supreme Court.

The Federal Court, as the guardian of the Federal system, had an original jurisdiction to
determine dispute between the units of the federation inter se (s. 204). It was also the appellant
court from the High Courts in the Provinces and the Indian States on Constitutional questions,
that is to say, on questions involving the interpretation of the Government of India Act, 1935,
and the Orders in Council made there under (Ss. 205, 207).

Besides the Federal Legislature was empowered to confer upon the Federal Court civil appellate
jurisdiction which so long belonged to the Privy Council was transferred to the Federal Court.

Appeal however lay from the decision of the Federal court to the Privy Council (s. 208) until
such appeal was abolished by the enactment of the Abolition of Privy Council Jurisdiction
Act,1949.

Federation as envisaged by the Government of India Act, 1935

By the Act of 1935, the British Parliament set up a federal system in the same manner as it had
done in the case of Canada, viz., “by creating autonomous units and combining them into
federation by one of the same Act.” It did not emerge out of any ‘federal sentiment’ nor did it
come into being as a result of a compact or agreement between the existing States to delegate
some of their powers to a common Government. All powers hitherto exercised in India were
resumed by the Crown and redistributed (In a manner similar to that of British North America
Act, 1867) between the Federation and the Provinces by a direct grant. Under this system the
Provinces derived their authority directly by crown and exercised legislative and executive
powers, broadly free from Central control, within a defined sphere. Nevertheless, the centre
retained control through ‘the Governor’s special responsibilities’ and his obligation to exercise
his individual judgment and discretion in certain matters, and the power of the Centre to give

54
directions to the Provinces.(though the federal system as envisaged bt the government of India
Act 1935 could not fully come into being owing to the failure of the Indian States to join it, the
provisions relating to the provinces and Central Government was given effect as above)

The peculiarity of thus converting unitary system into a federal one can be best explained in the
words of Joint Parliamentary Committee on Indian Reforms:

“Of course in thus converting a unitary state into a federation we should be taking a step for
which there is no exact historical precedent. Federation have commonly resulted from an
agreement between independent or, at least, autonomous Governments, surrendering a defined
part of their sovereignty or autonomy to a new central organism. At the present moment the
British Indian Provinces are not even autonomous for they are subject to both administrative and
legislative control of the Government and such authority as they exercise has been in the main
developed upon them under a statutory rule-making power by the Governor-General in Council.
We are faced with the necessity of creating autonomous units and combining them into
federation by one and the same Act”.

Not the result of a compact: It is well worth remembering this peculiarity of the origin of
federal system in India. Neither before nor under the Act of 1935, the provinces were in any
sense ‘sovereign’ states like the States of the American Union. The Constitution, too, had been
framed by the people of India assembled in the Constituent Assembly, and the Union of India
cannot be said to be the result of any compact or agreement between autonomous States(f.n….-
supported by the majority decision in State of W.B. v. Union of India AIR 1962 SC 1241). So far
as the Provinces are concerned, the progress has been from a unitary to a federal organization,
but even then, this has happened, not because the provinces desired to become autonomous units
under a federal union, as in Canada. The provinces, as just seen, had been artificially, made
autonomous, within a defined sphere, by the Government of India, 1935. What the makers of the
Constitution did was to associate the Indian States with these autonomous provinces into a
federal union, which the Indian States had refused to accede to, in 1935.

Some amount of homogeneity of the federating units is a condition for there desire to form a
federal union. But in India, the position has been different. From the earliest times, the Indian
States had a separate political entity, and there was little that was common in between them and

55
the Provinces that constituted rest of India. Even under the federal scheme of 1935 the Provinces
and the Indian States were treated differently; the accession of the Indian States was voluntary
while it was compulsory for the Provinces, and the powers exercisable by the Federation over the
Indian States were also to be defined by the Instruments of Accession. It was because it was
optional with the Rulers of the Indian States that they refused to join the federal system of 1935.
They lacked the ‘federal sentiment’ (Dicey), that is, the desire to form a federal union with the
rest of India. But, as already pointed out, the political situation changed with the lapse of
paramount of the British Crown as a result of which most of the Indian States acceded to the
Dominion of India on the eve of Independence of India and they were brought within the Union
envisaged by the Constitution by a process of ‘merger’ and ‘integration’ which is fully dealt with
in Part VII, post).

The credit of the makers of the Constitution lies not so much in bringing the Indian States under
the federal system but in placing them, as much as possible, on the same footing as the other
units of the federation, under the same Constitution. In short, the survivors of the old Indian
States (States in Part B of the First Schedule)were, with minor exceptions placed under the same
political system as the old provinces (States in Part A). the integration of the units of the units of
the two categories has eventually been completed by eliminating the separate entities of the
States in Part A and States in Part and replacing them by one category of “States” by the
Constitution (Seventh Amendment) Act, 1956.

The federal plan of the Constitution is thus uniform and not heterogeneous, as it was under the
Act of 1935.

1. Position of States in the federation:

From the historical background it has become already evident that the position of the States in
our federal scheme must necessarily be somewhat subordinate to that of the Union. As the
federation was not the result of any compact between the Independent States, there was no
problem before the makers of the Constitution-how to maintain ‘State rights’. From this has
resulted a departure from strict federal Principle on several points:

 The American federation has been described “an indestructible Union composed of
indestructible States.”(Texas v., White, (1868)7 Wall, 700(720). It is not possible for the

56
 National Government to redraw the map of the United States by forming new States or by
altering the boundaries of the States as they existed at the time of compact without the
consent of the Legislature of the States concerned(f.n…..-Art. IV, S. 3(1) of the
American Constitution). The same principal is adopted in the Australian Constitution
(f.n…..- Ss. 123-4 Australian Constitution) (f.n….- State of W.B v. Union of India, AIR
1963 SC 1241) with the further safeguard superadded that a popular referendum is
required in the affected State to alter its boundaries.

A state may be eliminated or reformed without its consent: But under our Constitution, it is
possible for the Union Parliament to recognize the States or to alter their boundaries or to
eliminate a State altogether by a simple majority in the ordinary process of the legislation (Art.
4(2)). The Constitution does not require that the consent of the Legislatures of the State is
necessary for enabling parliament to make such laws; only the President has to ascertain the
views of the Legislature of the State or States concerned before recommending a Bill for the
purpose to the Parliament, and if any State Legislature does not express its views within the
period fixed by the President, the Bill may be introduced in Parliament even without obtaining
the views of that State. “Parliament is therefore……… invested with authority to alter the
boundaries of any State and to diminish its areas so as to even destroy the boundaries of State
with all its power and authority”.

The reason why such a liberal power was given to the national Government to reorganize the
States is that the grouping of the Provinces under the Government of India Acts was based on
historical and political reason and not on social, cultural or linguistic divisions of the people
themselves. The question of reorganizing the units according to natural alignment was indeed
raised at the time of making of the Constitution but then there was not enough time to undertake
this huge task.

2. Reorganization of states:

The comparative ease with which such re-organization is possible is demonstrated by the fact
that within three years of commencement of the Constitution, a new State name Andhra was
formed by subdividing the State of Madras (see, further, under Arts. 3-4, post). Shortly hereafter,

57
the whole question of reorganization of the States composing the Union was referred to a State
Reorganization Commission in December 1953, to have the question.

“carefully examined ……… so that the welfare of the people of each constituent units as well as
of the nation as a whole is promoted.”(f.n….- No, 53/69/53-Pubic, Dt. 29-12-53, Gaz. of India,
Extraordinary, part 1, Sec. 1, Dt. 29-12-53)

As will be explained more fully hereafter (see under Art. 1, post), in pursuance of the
recommendation of this Commission(f.n….- Report of the State Recommendation Commission
1955), the entire structure of the Union has been recognized by enacting the States Recognition
Act (7 of 1956), followed by the Constitution (Seventh Amendment) Act, 1956. By this Act the
number of States which was 27 in the original Constitution (in different categories), was reduced
to 14. This process of reorganization was ever continuing as will be evident from the formation
of so many States, subsequently, e.g., Himachal Pradesh, Manipur, Meghalaya, Nagaland,
Tripura, Haryana, Mizoram, Sikkim, Arunachal Pradesh, Jharkhand, Goa.(f.n…..- vide p. 403 of
the 14th Ed. Of Introduction to the Constitution)

Not only does the Constitution offer no guarantee to the States against their territorial integrity
being affected without their consent there is neither any theory of ‘equality of State rights’
underlying the federal scheme in our Constitution, since it is not the result of any agreement
between the States.

One of the essential principles of American federalism is the equality of the component States
under the Constitution, irrespective of their size or population. This principle is reflected in the
equality of representation of the States in the upper House of the federal Legislature is followed
in the Australian Constitution as well. But in Canada, while each of three original provinces has
24 members, the number of members from other provinces, subsequently added, varies down to
a minimum of.

3. No federal equality of states:

Under our Constitution there is no equality of representation of the States, in the Council of
States. As given in the Fourth Schedule, the number of members from the several States varies
from 1 to 34, such being the composition of the upper Chamber in our Constitution, the federal

58
safeguard against the interests of the lesser States being overridden by the interests by the
interests of the larger or the more populated States is absent under our Constitution.

Further, like the Canadian Senate, our Council of States does not exclusively represent the
federal principle in as much as it consists of 12 nominated members (Art.80) apart from the
representatives of the States.

4. No state excepting Kashmir, can draw its own constitution:

The States, under the Indian Constitution, have no right to determine their own constitution.
While the Constitution of the United States (1787) simply drew up the Constitution of the
national Government leaving it in “the main (to the States) to continue to preserve their Original
Constitution” (or in case of new admissions- to draw up their own Constitution by a Convention)
or to amend them, the Constitution of India, like that of Canada, prescribes the Constitution of
the Union as well as those of the States (with one exception in case of Jammu & Kashmir). The
States of the Indian Union have no right or power anterior to or apart from this Constitution
Bank of Toronto v. Lambe

Unlike in Canada,(f.n….- S.45 of the Canada Act, 1982(SCW (3RD),P.107), on the other hand,
the States under our Constitution have no independent power to make alteration in their own
Constitution and even the abolition of a second Chamber in a State requires a law of Parliament
(Art. 169).

5. No dual citizenship or administration:

Nature of the polity.- As a radical solution of the problem of reconciling national unity with
“State right’, the framers of the American Constitution made a logical division of everything
essential to sovereignty and created a dual polity, with a dual citizenship, a double set of officials
and a double system of Courts.

An American is a citizen not only of the State in which he resides but also of the United States,
i.e., of the federation; and both the federal and the State Governments, each independent of other,
operate directly upon the citizen who is thus subject to two Governments, and owes allegiance to
both.

59
But the Indian Constitution, like the Canadian, does not introduce any double citizenship but
provides for one citizenship, viz., - the citizenship of India (Art. 5).

Secondly, though the Union and the States shall have their own public services, there is no clear-
cut bifurcation in the administration of the Union and the State Laws as in the U.S.A. in India,
the majority of the public servants are employed by the States, but they administer both Union
and the State laws as are applicable to their respective States by which they are employed. Our
Constitution provides for the creation of All India Services, but they are to be common to the
Union and the States (Art. 312). Members of the Indian administrative service, appointed by the
Union, may be employed either under some Union Department (say, Home or Defence) or under
a State Government, and their services are transferable, and even when they are employed under
a Union department, they have to administer both the Union and the State laws as are applicable
to the matter in question. But even while serving under a State, for the time being, a member of
all-India Service can be dismissed or removed only by the Union Government, even though the
State Government is competent to initiate disciplinary proceeding for that purpose.(f.n….-Cf,
Kanpur Singh v. Union of India, AIR 1960 SC493(497))

Thirdly, though, in general, the Constitution divides the ‘executive’ power between the Union
and the States on the basis of the division of legislative powers (Arts 73(1); 162), this is not
intended to be a partition into water-tight compartments as in the U.S.A. Thus,-

 As regards laws made by the Union on ‘concurrent’, subjects, the executive power will be
primary exercised by the States, unless Parliament directs otherwise (Proviso to Arts
73(1), 162).
 Even as regards ‘Union subjects’, the union may delegate its executive functions to a
State, either by legislation by Parliament or by consent of the State Government (art.
258). Conversely, the States may entrust their function to the Government of India, with
the consent of the latter (Art. 258A)
 On the other hand, the Constitution specifically makes it the duty of the States to execute
the Union laws and the executive powers of the State must also be so exercised as not to
interfere with the executive power of the Union (Arts. 256-7), and in these matters, the
States shall be under the direction of the Union. Herein, the framers of the Constitution
appear to have been influenced by the pre-existing system, -i.e., under the Government of

60
 India Act, 1935(f.n……-Vide J.P.C. Report, Vol. 1, para 219, p.120; S26 Government of
India Act, 1935). Such a plan of giving directions by the Union to the States is totally
foreign to the American Constitution.
 Not only is the Union entitled to give directions to the States, failure on the part of a State
to carry out the directions of the Union (Art. 365) would entitle the Union to supersede
the State Government, for the time being, by assuming to itself the powers of the State
Government (Art. 356).
 Fourthly, there is no dual system for the administration of justice under our Constitution.
In the U.S.A., there is a federal judiciary, with a hierarchy of Courts with the United
States Supreme Court at its head, for the trial of cases relating to federal laws and other
federal matters; and there is a separate system of Courts in each State, headed by the
State Supreme Court for the enforcement of the State laws. But the working of this dual
system has been cumbersome and productive of delays in the administration of
justice.(f.n…..- DOUGLAS FROM MARSHALL TO MUKHERJEE (TLL 1956)p. 86)

6. No dual system of courts:

India has, therefore, discarded the American model of dual system of Courts. Under the
Constitution of India, there is (as in Canada) one integrated system of Courts, for the
administration of both Union and the State laws, with the Supreme court at the top as the final
appellate court in all matters, whether they relate to Union or State laws (Art. 132-6). Of course,
there is a provision in the Constitution (Art.247) empowering parliament to create additional
Courts for the better administration of Union Laws, but no such court has yet been established
and it may be reasonably expected that we are not going to have any separate system of federal
laws as a regular feature of judicial administration, for while, the American experience of
entrusting State Courts with the enforcement of Federal laws during the period of confederation
was unsatisfactory(f.n….- FERGUSON &Mc HENRY, American Federal Government,1947.
P.308). In India the unified system of Courts exits from the beginning of the British regime, and
no change was suggested when a federal scheme was first planned by the framers of the
Government of India Act, 1935, because the experience of a unified system was too deep-routed
to be disturbed.

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Not only is the judicial organization under our Constitution unified, the control over the judiciary
is also unified or centralized, for though ‘administration of justice’ is a State subject (Entry 3 List
II), the judges of the State High Courts are to be appointed and removed by the Union in the
same manner as the judges of the Supreme Court (Art. 217)

7. Strong Central Bias:

Even though there is a distribution of power between the Union and the states as under a federal
system, the distribution has a strong Central bias and powers of the state are hedged in which
various restrictions which impede their sovereignty even within the sphere limited to them by the
distribution of powers basically provided by the Constitution.(f.n……- State of West Bengal v.
Union of India, AIR 1963 SC 1241 . )

Firstly, it may be observed that many subjects which were in the State or the Concurrent list in
the Government of India Act, 1935, were transferred by the Constitution to the Union list so that
the factors of economic and industrial progress could be placed under the unified and centralized
control or administration. Instances to the point are Entries in the Union list relating to the
National Highways (Entry 23); Inter-state trade and commerce (Entry 42).

Secondly, the sphere of legislation allocated to the Union by the Legislative Lists can be
enlarged at the cost of the States even in normal times. These various modes of expansion of the
Union power are:

The constitution provides for enlargement of the federal legislative power in certain
contingencies

 In the national interest- Parliament shall have the power to make laws with respect to any
matter included in the State List, for a temporary period, if the Council of states declare
by a resolution of 2/ of its members present and voting, that it is necessary in the national
interest that the Parliament should have power to legislate over such matters. Each such
resolution wil give a lease of one year to the law in question. A law made by Parliament
which Parliament would not but for the passing of such resolution have been competent
to make shall, to the extent of incompetency, cease to have effect on the expiration of a
period of six months after the resolution has ceased to be in force, except as respects

62
 things done or omitted to be done before the expiration of the said period. The resolution
of the council of states may be renewed for a period of one year at a time (Art 249).
 By agreement between States-if the Legislatures of two or more states resolve that it shall
be lawful for the parliament to make law with respect to any matters included in the State
list relating to those States, Parliament shall have such power as regards such States. It
shall also be open to any other state to adopt such Union legislation in relation to itself by
a resolution passed in that behalf in the legislature of the State, this is an extension of the
jurisdiction of the Union Parliament by consent of the State Legislature (Art 252).
Thus, though Parliament has no competence to impose an estate duty with respect to
agricultural lands, Parliament has, in the Estate Duty Act, 195, included the agricultural
lands situated in certain States, by virtue of resolution passed by the Legislatures of such
States, under Art 252, to confer such power upon Parliament.
Thirdly, in the matter of distribution of the taxing power, the more important resources
having been allocated to the Union the State has to largely depend upon financial
assistance from the Union (f.n…….-State of W.B v, Union of India, air 1963 Sc 1241)
and there is an elaborate system for the making of grants and the distribution of a share of
the proceeds of some taxes by the Union to the States. Even the borrowing power of the
States has been subject to the consent of the Union in certain cases (Art 293(3)).

8. Deviation from normal federal ideas:

Again, though the Indian Constitution presents a federal system for normal times, it has a unique
achievement of imparting to that federal system the strength of a unitary system, by enabling the
federal Government to convert itself into a unitary one, in emergencies. One of the basic
principles of federalism, as it is understood in the United States of Australia(f.n……- A.G. for
commonwealth v. Colonial sugar refining Co., (1914) AC 237), is that the division of powers
made by the original compact as embodied in the Constitution should not be allowed to be
superseded at the mere will of one of the contracting parties. No doubt the ambit of the federal
powers is virtually enlarged by judicial interpretation; but the fact remains that it is not possible
for the national Government neither to transfer to itself any of the powers belonging to the
States, by unilateral action nor to suspend the working of the State Governments.

63
But this will be possible under the Constitution of India, and in respect, our Constitution even
goes beyond the Canadian. We have already seen that it will be open to the Union Government
to supersede a State Government which refuses to carry out its directions as are authorized by the
Constitution (Art 365). While in normal times the power to give direction is confined to some
specific matters (Arts 256-7), when a Proclamation of Emergency is made by the President (Art
352) the power of Union executive to give direction to the State executive will extend to any
matter (notwithstanding any other provision in the Constitution) (Art 353(a)); and the legislative
power of the Union Parliament will also automatically extend to matters in State List (Art.
250(1)).

The constitution also envisages a financial emergency which is stated to be “a situation whereby
the financial stability or credit of India or any part of the territory thereof is threatened.” The
power to make a declaration that such an emergency exists is vested in the President. On the
declaration being made the executive authority of the Union becomes enlarged so as to enable
the Union to give directions to any State to observe such canons of financial property as may be
specified in the directions and such other direction as the President may deem necessary for the
purpose (Art. 360).(f.n…..- power not used upto 1990)

As has been already seen, even apart from emergencies, the Indian Constitution (Art 249)
empowers the Union Parliament to assume legislative powers (though temporarily) over any
subject included in the exclusive State List by a simple resolution of 2/3 of the members present
and voting in the Council of States (i.e., the upper chamber of Parliament itself) that such
legislation is necessary in the ‘national interest’. It is true, the Council of States contains
representatives of the States, but owing to inequality of State representation, it is practically the
majority in one of the Houses of the national legislature who would be competent to override the
normal distribution of powers as laid down by the Constitution.

Of course, under the Canadian Constitution, the Judiciary has helped the Dominion Parliament to
legislate on provincial matters when they assume a national importance owing to emergency or
similar circumstances having a nationwide repercussion;

“ some matters, in their origin local and provincial, might attain such dimension as to affect the
body politic of the Dominion and to justify the Canadian parliament in passing laws for their

64
regulation or abolition in the interest of the dominion………….”(f.n….- A.G. for Ontario v.
A.G. for Canada,(1896) AC 332 (361). See also A.G. for Ontario v. Canada Temp. Federation,
(1946)50CWN 534(538)(PC))(f.n….-U.S v. S.E. Underwriters Association (1944)322 US 533)

But our Constitution goes further and empowers the Federal Legislature itself to directly take u a
State matter upon its own determination that such assumption of State power is ‘necessary or
expedient in the national interest’. The Judiciary has no say to as to the existence of national
interest in such a case.

More unique is the power of the Union to assume to itself the executive and legislative powers of
the State whenever the President is satisfied from the report of the Governor of the State (who is
appointed by the President, as already noticed) that the Government of the State cannot be
carried on according to the provisions of the Constitution (Art 356). It has no connection with the
existence of any ‘emergency’. It has already been pointed out that this extreme penalty may be
imposed on the State if it fails to carry out any direction given by the Union. (Art 365).

Such a form of unilateral action to subvert the federal system has no precedent under any federal
Constitution. From the federal standpoint, this is also anomalous in as much as the Constitution-
makers did not consider it necessary to provide for any remedy whatever for a similar breakdown
of a constitutional machinery at the Centre. Again, the power to suspend the constitutional
machinery may be exercised by the President, not only on the report of the Governor of the State
concerned but also suo motu, whenever he is satisfied that a situation calling for the exercise of
this power has arisen. It is thus a coercive power available to the Union against the units of the
federation.(f.n….- Power used 81 times in 40 years)

Though there is a division of power between the Union and the States, there are provisions for
control by the Union both over the administration and legislation of the States. Legislation by a
State shall be subject to disallowance by the President, when reserved by the Governor for the
consideration of the President (Art 201). Again, the Governor of a state shall be appointed by the
President of the Union and shall hold office ‘during the pleasure’ of the President (Arts. 155-6).
Both these ideas are repugnant to the Constitution of the United States of or Australia, but exists
under the Canadian Constitution.

65
Asymmetric in the Indian Federal
Structure

66
Asymmetries in the Federal Structure “Asymmetric federalism” is understood to mean
federalism based on unequal powers and relationships in political, administrative and fiscal
arrangements spheres between the units constituting a federation. Asymmetry in the
arrangements in a federation can be viewed in both vertical (between centre1 and states) and
horizontal(among the states) senses. If federations are seen as ‘indestructible union of
indestructible states’, and centre and states are seen to exist on the basis of equality; neither has
the power to make inroads into the defined authority and functions of the other unilaterally.
However, such ‘purists’ view of federalism is rarely, if at all, seen in practice. Even when the
constitution guarantees near equal powers to the states, in the working on federal systems centre
dominates in political, administrative, as well as fiscal spheres. There is considerable volume of
literature on central domination in Indian federalism in the assignment system in the constitution
and central intrusion into the states’ domains in the working of the federation.18Unlike the
classical federations like the USA, Indian federation is not an ‘indestructible union of
indestructible states’. Only the union is indestructible and the states are not. Article 3 of the
Constitution vests the Parliament with powers to constitute new states by separating territories
from the existing ones, alter their boundaries, and change their names. The only requirement for
this is that the `Bill’ for the purpose will have to be placed in the Parliament on there
commendation of the President and after it has been referred to the relevant state legislature for
ascertaining their views (their approval is not necessary). The federation is not founded on the
principle of equality between the union and states either. The central government in India has the
powers, and it actually does invade the legislative and executive domains of the states (Chanda,
1965; Rao and Sen, 1996;Rao and Singh, 2000). The distribution of power between the centre
and states on the one hand and the treatment of different states on the other in the Indian
constitution owe much to historical and political factors. Although the Cabinet Mission sent by
the British Government in 1946 saw no virtue in partitioning undivided India into two different
independent nations, it also recommended that the independent country should be governed by a
federal constitution with the central government dealing with only foreign affairs, defence and
communications, remaining vested with two groups of provinces, one predominantly Hindu, and
the other predominantly Muslim. However, the insistence of the Muslim League to have a
separate nation for the Muslims led to the formation of Pakistan comprising Muslim majority
regions of the north-west part of the subcontinent and eastern part of Bengal. In the event, it was

67
no longer necessary to create a weak federal government. Instead, the founding fathers of the
constitution decided to have a federation with a strong central government to hold together the
diverse economic, linguistic, and cultural entities and to avoid fissiparous tendencies.
Centralisation was also found desirable to unify the country, comprising regions directly ruled by
the British and 216 princely states and territories. Asymmetric arrangement in Indian federalism
has a long history and goes back to the way in which the British unified the country under their
rule and later the way in which the territories under the direct control of the British and various
principalities were integrated in the Indian union. While the territories ruled directly by the
British were easily integrated into the Union, the treaties of accession signed by individual rulers
covered the integration of different principalities. The provinces ruled directly by the British had
a modicum of autonomy and rudimentary form of parliamentary government as the British
loosened the grip gradually from 1919 onwards. The Constitution that was adopted in 1951 it
classified the states into four categories. The provinces directly ruled by the British were
classified as Part `A’ states. The princely states which had a relationship with the Government
ofIndia based on individual treaties signed were classified as Part `B’ states. These included the
states of Hyderabad, Mysore, Jammu and Kashmir and 5 newly joined unions of princely states.
In the case of Jammu and Kashmir, the powers special powers were given in the terms of
accession. The remaining princely states acceding to the union were grouped under Part `C’
states. Finally, the territories ruled by other foreign powers gaining independence (French and
Portuguese) and areas not covered in the above three categories were brought under the direct
control of the union to form Part `D’ states or Union Territories. Thus, the Union of India in
1947 began with a major asymmetry between British India and the princely states and even
among the latter, the terms of accession differed depending on the bargaining strength. In almost
all cases, the princely states surrendered whatever notional sovereignty they had to the new
country of India, in exchange for guaranteed revenue stream: their “privy purses”. The nature of
this bargain was clear – security and money in exchange for giving up authority or residual
control rights. This is close to the standard view of federation as a political bargain, with the
difference that the successors of the British in India, the Indian National Congress, were in an
extremely strong bargaining position, even relative to the coalition of the princes. This was
illustrated in the case of the exceptions to voluntary accession, such as Hyderabad, where
military force (the authority over which was also inherited from the British) ensured integration

68
into the new union. In a multi-cultural nation like India, federalism ironically appears to be
looked upon both as a bogy and as saviour. This is particularly true of what is called
“asymmetrical federalism”, which means a federation in which some of the federating units are
accorded weightage under imperatives of compelling historical or cultural factors that create a
desire for special or distinct constitutional recognition of their difference in relation to others.
Indian federation is based on four kinds of asymmetries.19First, there is a universal asymmetry
affecting all units. For example, States in India are represented in the RajyaSabha not on the
footing of formal equality as in the United States of America but on the basis of their population
(Articles 3[1] and 80[2] read with the fourth schedule). Thus, the State of Uttar Pradesh has 31
seats whereas States of North-East (like Meghalaya, Mizoram, Manipur) and Pondicherry, Goa
have just one seat each in the RajyaSabha. Second, there are specific asymmetries with regard to
administration of tribal areas, intra-state regional disparities, law and order situation and fixation
of number of seats in legislative assemblies in relation to states of Maharashtra, Gujarat, Assam,
Manipur, Andhra Pradesh, Sikkim, Arunachal Pradesh and Goa ( Articles 371, 371 B, 371C,
371D, 371E, 371F, 371H, 371I). Article 371 provides that the Governor of Maharashtra or
Gujarat would have a “special responsibility” for the establishment of separate development
boards for certain backward regions of these States with equitable allocation of development
funds and provision of facilities for technical education, vocational training and employment
opportunities. Article 371B and C empower the President of India to ensure the setting up of a
committee of the Legislative Assemble in the States of Assam and Manipur consisting of
Members elected for tribal/hill areas to look after the welfare of those communities. Article
371D and E enjoin upon the President of India to ensure “equitable opportunities and facilities”
for the people in different regions of Andhra Pradesh in respect of public employment and
education and the establishment of a Central university in the State. Article 371 F and I
guarantee that the Legislative Assembly of Sikkim and Goa “shall consist of not less than thirty
members”. The former Article also places on the governors of the State certain “special
responsibility for peace and for an equitable arrangement for ensuring the social and economic
advancement of different sections of population” of the State. Article 371 H “gives responsibility
with respect to law and order” in Arunachal Pradesh and empowers the incumbent, i.e. the
Governor to act in his “individual judgement: after consulting the council of Ministers. The third
kind of asymmetry in Indian federalism relates to a special kind of federating units that are called

69
the Union Territories (UTs). The seven UTs have been created on various points in time. The
reasons for their creation were varied. These areas were either too small to be States or too
difficult to merge with a neighbouring State on account of cultural differences, inter-state
disputes, the specific needs of the National Capital Territory, or their far-flung isolated location
on the coasts. Originally, they were all administered directly by the Union through a centrally
appointed administrator. None of these has a legislature but all are represented by at least on seat
in the Lowers House of the Parliament. The Parliament can either extend the jurisdiction of a
neighbouring State to such territories of create a separate High Court for it (Article 241[1] and
[4]). Subsequently, two new types of UTs were created, namely, Pondicherry (fourteenth
Amendment Act, 1962) and Delhi (sixty Ninth Amendment Act, 1991). A common feature of
these two territories is that they have been granted unicameral legislatures whose members are
directly elected by the people. The Pondicherry legislature is partly elected and partly nominated.
There is also a Council of Ministers responsible to the legislature in both the territories. The head
of the State in both Delhi and Pondicherry is a Lieutenant governor appointed by the Union to
perform forma executive functions of the Government. Both the territories also have
Governments headed by chief Ministers accountable to their respective legislatures. However,
the Chief Minister of Delhi is appointed by president of India on the recommendation of the
Lieutenant Governor. This is presumably in view of the fact that Delhi is the National Capital
Territory. The legislature of Delhi enjoys only concurrent jurisdiction. In case of conflict in
regard to laws made by it and those made by the Parliament of India, the latter prevails.
Pondicherry is represented by one seat each in the LokSabha and the RajyaSabha. Delhi has
seven LokSabha and three RajyaSabha seats. Despite being called a State, Delhi is really a semi-
state as some vital subjects like land, police and civil services are vested in the Union
government. The Government of Delhi enjoys only concurrent jurisdiction in other subjects.
Hence, there has been a long-standing demand of full statehood for Delhi. In case of
Pondicherry, land, police and civil services are under the jurisdiction of the State Government.
There are special asymmetries relating to the States of Jammu and Kashmir, Nagaland and
Mizoram (Article 370, 371A and 371G). The greatest degree of asymetricality in the Indian
constitution concerns the State of Jammu and Kashmir. Article 370 of the constitution of India
contains what it calls “Temporary Provisions” which provides that the legislative powers of the
Parliament of India shall” correspond to matters specified in the Instrument of Accession” of the

70
State to the Indian Union, and any other matter “with the concurrence of the Government of the
State”. Here, it may be recalled that under the Independence of India Act, 1947 passed by the
British Parliament, the Princely State of Jammu and Kashmir was freed from the paramount of
the British Crown and was granted the option to stay independent or to join India or Pakistan.
The Dogra Hindu Maharaja Hari Singh of this predominantly Muslim state decided to exercise
the first option, but under a veiled aggression from Pakistan, asked for military assistance from
India. Lord Mountbatten, who was still the Governor General of India, opined that India could
not send its troops to a foreign State. Thereupon, the Government of Jammu and Kashmir signed
the Instrument of Accession to India to clear the way for India’s military intervention in the
situation. However, before India could liberate the entire territory occupied by Pakistani raiders,
the United Nations managed to declare a ceasefire. The special status given to this State in the
Indian constitution owes its existence to this peculiar circumstance of its integration to the Union
of India. Since its accession, the state has been increasingly integrated with the Indian federation.
This is the only State of India which has its own constitution framed in 1956 by the Constituent
assembly of Jammu and Kashmir convened for this purpose in November 1951. The most
notable feature that marks the relationship of Jammu and Kashmir with the Union of India is that
an Act of the Parliament does not automatically apply to this State unless and until it is endorsed
by the State legislature. Similarly, Article’s 371A and G provide that a parliamentary statute to
be extended to the States of Nagaland and Mizoram requires the consent of the legislatures of
these States, if the law convened relates to religious and social practices of Nagas and Mizos,
Naga and Mizo customary law and procedures, administration of civil and criminal justice
affecting Naga and Mizo customary law and ownership and transfer of land resources of these
States. The Nagaland Article also stipulates that the Government of Nagaland shall have “special
responsibility’ with respect to law and order so long as the “internal disturbances” in the Naga
Hills Tuensang area immediately before the formation of that State continue. The process of
administrative reorganization of India focused on the creation of new boundaries based on the
main principle of language. Typically, separate religious, caste, ethnic or tribal identities within
these boundaries were not the basis for further divisions. One major exception to this has been
the north-eastern part of India, where there is a distinct difference in ethnicity from the rest of
India, and several strong divisions based not only on language, but also on culture and other
traditions(“tribal”, if one wishes to use that term). This part of India contains the states of

71
Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, and Tripura. Of
these, only Assam has a population comparable to other typical Indian states. Most of these
states were upgraded from the status of Union Territories,20 this reclassification giving them, at
one level, a political status equivalent to that of larger states such as Bihar, Madhya Pradesh, and
Uttar Pradesh. Each state carries equal weight in mustering the 50 percent of states required to
ratify an amendment to the constitution. Furthermore, there are various clauses in Article 371
which accord special powers to north-eastern states. These provisions have been introduced
through amendments, typically at the time of conversion of a union territory to a state, or in the
case of Sikkim, after its accession to India. The safeguards provided to these states through these
special provisions include respect for customary laws, religious and restrictions on the migration
of nonresidents to the state. State legislatures are typically given final control over changes in
these provisions. Thus, there are various provisions in the Indian Constitution to protect group
rights, and to compensate for initial inequalities in the social system. Thus the constitution, while
recognizing the idea of fundamental human rights at the individual level, does not assume an
idealized initial condition of equality, either in pure economic terms or otherwise. Thus there are
allowances for separate laws to govern different religious groups, and there are provisions for
various kinds of “affirmative action” for extremely disadvantaged groups. The first kind of
provision simply respects diversity (though this can create issues of unequal treatment across
subgroups, e.g., women in two different religious groups). The second attempts to correct for
specific inequities, recognizing that legislative equal treatment from very unequal initial
conditions would not achieve desired equity goals. Conceptually, at this level of ethical or
normative judgement, there is no difference between these provisions and the ones for the
indigenous residents of north eastern states, except that the latter happen to be geographically
concentrated into reasonable administrative units. If that is the case, then the relationship to
federalism is not essential.

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 Distribution of Powers and Centre-State Relations in India

Comparison with other

Countries

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 Comparison

Introduction:

History of federal movement in the world shows that a successful federation is made, voluntarily,
when the necessary amount of consciousness of common good comes to exist among the states
that federate. Federation is the result of evolutionary process, but not of revolution. It connotes a
high degree of political experience for its successful establishment and working. A federal
system is a very complex, though a very popular political system among the comity of nations of
the world today. There are more than twenty countries that take pride in claiming to possess and
practice the federal system. They include some of the biggest countries in the world-U.S.A.,
Canada, Australia and India, and the smallest countries like Switzerland, Austria and Yugoslavia.
William H.Ricker says: “Well over half landmass of the world was ruled... by governments that
described themselves as federations...”2 Keeping these aspects an attempt has been made to
analyze the comparative study between India and Switzerland the two federations. Because a
comparative approach is particularly advantageous by way of arriving at a better understanding
of political system, one which is called quasi-federal and the other, called classical federation.
Further, a comparative study of political, legal and constitutional systems not only promotes
better understanding but also helps in proper evaluation of one’s own institution. Thus through a
comparative study many constitutional problems can be solved, particularly where a 2
constitution is framed with material borrowed from other constitutional instruments. It is obvious
that the need for a comparative study assumes a special importance, because the provisions of
such constitution cannot be interpreted without applying the foreignprecedents. Therefore, it is
proposed to make a comparative study of relevant constitutional provisions. From this
comparative study, area of tensions/conflicts in centre-state relations discerns that federal
disputes are always political disputes and therein lies the problematic nature of tensions/conflicts
in the whole of centre-state relations. Therefore, new challenges to federalism are the basis for
comparative study. New challenges are the base point of an in-depth inquisitive of modem
federalism, which is seen as a need to stress the dynamics of flexibility and adaptability, because,
today, the distinction between centralized and decentralized can only be a starting point of

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comparisons stereotyped. This attitude helps to understand comparatively the “federal spirit”,
“federal behaviour” of the systems to developing the annals of co-operative inter-governmental
centre-state relations realistically aiming at rendering services to mankind in general and weaker
segments ofsociety in particular. There may have been ups and downs, failures and success on
economic front, parliamentary election front, and political front. It is also an attempt of
evaluation of India’s constitution essentially to the impetus of success and failures during the
past 57 years, because it has been confronting ups and downs since its inception, first from those
who have striven to inject their own political ideology short of will of the people, and second,
from those Villain Scammers who have 3 been responsible to taint the so well knit system.

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Cases

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 1. McCulloch v. Maryland (1819)

On April 8, 1916, Congress passed an act providing the incorporation of the Second Bank of the
US. The Bank went into full operation in Philadelphia, Pennsylvania and in Baltimore, Maryland
in 1817, carrying out business as a branch of the Bank of the US. On February 11, 1818, the
General Assembly of Maryland passed an act placing a tax on all banks not chartered by the
legislature. Maryland attempted to impede operations of a branch of the Second Bank of the US
by imposing a tax on all bank notes not chartered in Maryland. The Second Bank of the US was
the only out-of-state bank in Maryland and the law was perceived to be targeting the US Bank.
James McCulloch, head of the Baltimore Branch of the Second Bank of the US, refused to pay
the tax.

The lawsuit was filed by John James, an informer seeking to collect half the fine. The case was
appealed to the Maryland Court of Appeals where the state argued that the Constitution is silent
on the subject of banks because the Constitution did not specifically state that the federal
government was authorized to charter a bank. The court upheld Maryland and the case was
appealed to the Supreme Court.

Both sides of the litigation admitted that the Bank had no authority to establish the Baltimore
branch. Chief Justice John Marshall believed that the case established the principles that the
Constitution grants Congress implied powers for implementing the Constitution’s expressed
powers, in order to create a functional national government and that state action may not impede
valid constitutional exercises of power by the federal government.

The court determined that Congress had the power to create the Bank. Marshall supported this
with four arguments. First, historical practice established Congress’ power to create the Bank.
Second, he argued that it was the people who ratified the Constitution and thus the people are
sovereign, not the states. Third, Marshall admitted that the Constitution does not enumerate a
power to create a central bank but that this is not dispositive to Congress’ power to establish such
an institution. Fourth, he invoked the Necessary and Proper Clause, permitting Congress to seek
an objective within its enumerated power so long as it is rationally related to the objective and
not forbidden by the Constitution. The Court rejected Maryland’s interpretation of the clause and
determined that Maryland may not tax the Bank without violating the Constitution.

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 1. Gibbons v. Ogden (1824)

In 1808 The Legislature of New York granted Robert Livingston and Robert Fulton exclusive
navigation privileges to waters within the jurisdiction of the state. They petitioned other states
and territorial legislatures for similar monopolies, hoping to develop a national network of
steamboat lines. Only the Orleans Territory accepted and awarded them a monopoly in the lower
Mississippi. Competitors challenged Livingston and Fulton, arguing that the commerce power of
the Federal government was exclusive and superseded state laws. In response to legal challenges,
they attempted to undercut their rivals by selling them franchises or buying their boats.

Former New Jersey Governor Aaron Ogden tried defying the monopoly, but purchased a license
from Livingston and Fulton in 1815 and entered business with Tomas Gibbons from Georgia.
The partnership collapsed in 1818 when Gibbons operated another steamboat on Ogden’s route
between Elizabeth, NJ and New York City, licensed by Congress under a 1793 law regulating
coasting trade. They ended up in the New York Court of Errors, which granted a permanent
injunction against Gibbons in 1820.

Ogden filed a complaint in the Court of Chancery of New York asking to restrain Gibbons from
operating on those waters, contending that states passed laws on issues regarding interstate
matters and states should have concurrent power with Congress on matters concerning interstate
commerce. Gibbons’ lawyer argued that Congress had exclusive national power over interstate
commerce according to Article I, Section 8 of the Constitution. The Court of Chancery and the
Court of Errors of New York were in favor of Ogden and issued an injunction restricting
Gibbons from operating his boats. Gibbons appealed to the Supreme Court, arguing that the
monopoly conflicted with federal law.

The Supreme Court ruled in favor of Gibbons, arguing that the source of Congress’ power to
promulgate the law was the Commerce Clause. Chief Justice Marshall’s ruling determined that a
congressional power to regulate navigation is granted. The court went on to conclude that
congressional power over commerce should extend to the regulation of all aspects of it.

2. Barron v. Baltimore (1833)

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John Barron co-owned a profitable wharf in the Baltimore harbor and sued the mayor of
Baltimore for damages, claiming that when the city had diverted the flow of streams while
engaging in street construction, it had created mounds of sand and earth near his wharf making
the water too shallow for most vessels. The trail court awarded Barron damages of $4,500, but
the appellate court reversed the ruling.

The Supreme Court decided that the Fifth Amendment’s guarantee that government takings of
private property for public use require just compensation is a restriction upon the federal
government. Chief Justice Marshall held that the first ten amendments contain no expression
indicating an intention to apply them to the state governments.

The case stated that the freedoms guaranteed by the Bill of Rights did not restrict the state
governments. Later Supreme Court rulings would reaffirm this ruling and, beginning in the early
20th century, the Supreme Court used the Due Process Clause of the Fourteenth Amendment to
apply most of the Bill of Rights to the states through the process of selective incorporation.

For MCQ’s

 The classical theorists held the “American Model” as the ideal one. As professor
Neumann says, “As the British Parliament has been the mother of Parliaments, so the
United States has been the father of federalism.

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