Federalism in India vs. Federalism in USA –A Better Model

Arpit T. Azad

Federalism

K.C.Wheare defined federalism as “the method of dividing powers so that the general and regional governments are each within a sphere co- ordinate and independent.”[1]

Federalism is a political system by which a society broadly gets divided into two levels of Government with assigned powers and functions arising from a variety of social, economic, cultural, and political factors. It is one element of power dispersion among others in the creation of political order which is built in consonance with the principles of constitutional government. The principles of federalism are grounded on and formed with the combination of self-rule and shared rule. In the broadest sense, federalism involves the linking of individuals, groups, and politics in the lasting but limited union in such a way as to provide for the energetic pursuit of common ends while maintaining the respective integrity of all parties. Federalism as a political principle deals with the constitutional diffusion of power so that the constituting units in a federal arrangement share in the processes of common policy making and administration by right, while the activities of the common government are conducted in such a way as to maintain their respective integrity.[2]

Federalism constitutes a complex governmental mechanism for the governance of a country. It binds one political union into several autonomous, distinct, separate and disparate entities or administrative units. It seeks to draw a balance between the forces working in favour of the concentration of power at a central point and the forces, which favour a dispersal of the power in a number of units. Federalism thus seeks to reconcile unity with multiplicity, centralization with decentralization and nationalism with localism. The originality of the federal system which lies in that power is, at one and the same time, concentrated as well as divided. There is centralization of administration and legislation in certain areas along with decentralization in other areas.[3]

The fundamental highlights of federalism are double government, separation of powers, and the primacy of the constitution, the jurisdiction of courts, written Constitution, decentralization, and genuine segregation of power, however, the previously mentioned standards are definitely not comprehensive, they do incorporate real components of federalism.

A federal constitution builds up a double nation, involving two dimensions of government—a focal government having ward over the whole nation in certain zones, and state governments, each of which practices jurisdiction within characterized provincial limits.

The totality of administrative powers and capacities are separated between the Centre and the states. Each dimension of government, therefore, works inside its relegated field.

These two governments come in contact with each other at several points, and thus a host of inter-governmental relations arise in a federal country. The pattern of these relations is not static; it is dynamic and is constantly finding a new balance in response to the centripetal and centrifugal forces’ operating in the country and, that is the reason of the subject of inter-governmental relations being of much significance to a student of any federal constitution.[4] Chief essentials for a constitution to be federal are:      

  1. Dispersion of powers between the centre and the unit states forming federation among a number of co-ordinate bodies, controlled by the constitution. 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. Federal Government is 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 made 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.
  2. Rigidity – Neither the centre nor the state has the power to amend the provision of the constitution relating separation of powers. A rigid constitution is the one which requires a special method of amendments of any of its provision.
  3. A written constitution.
  4. Domination of the constitution – Neither centre or state has the power to nullify 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.
  5. An independent body and unprejudiced authority have been established under the Constitution of India. It is the custodian of the rights of citizens.[5]
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Federalism in India

The constitutional law consists both of legal in the strict sense and of usages, commonly called as conventions, which without being enacted are accepted as binding by all who are concerned in government. Many rules and practices are not part of the law in the sense that there violation may lead to proceeding in a court of law. Indian Constitution is an aid to be a federal structure only because it is said that it has a clear demarcation of boundaries between central & the state government similar to that of U.S. India having legislative and executive authority divided between the centre and the state.[6]

India is often also claimed to be non- federal in a matter such as the Centre can impinge upon the areas earmarked only for the states in some cases. Therefore, it infringes the principle of federalism as it makes the state hyponym to the centre. Hence, it is also said to be in a unitary form of government too. The phenomena of such a unitary form of government arise only during the period of wars or emergency period. A federal constitution establishes a duple polity with Union at the centre and the States at the fringe, each dowered with autonomous powers to be exercised in the field assigned to them respectively by the constitution. Both are in a way co-ordinate to powers of each other. In fact, the basic principle of federalism is that the legislative, executive and financial authority is divided between the centre and the states, not by law passed by the centre but the Constitution itself.[7]

Indian Constitution also defines a counterpoise of powers between the Executive, Legislature and the Judiciary. If courts are deprived of the powers, the fundamental rights conferred on the people of the country will become just equal to decoration and people as a puppet in the hands of the sovereign. Thus, it will also lead to a system wayward to that of democracy and undermine its spirit. The bestowal of the right to spifflicate the identity of the Constitution twinned with the provision that no Court of Law shall pronounce upon the validity of such wipe out and no limit to the amending powers. If the constitutional amendment cannot be pronounced to be invalid even if it destroys the basic structure of the Constitution, a law passed in pursuance of such will be beyond the pale of judicial review as it will receive the protection of Constitutional amendment thus made and no organ has the power to overrule it.

State of West Bengal V. Union of India[8] – The main issue involved in this case was the exercise of sovereign powers by the Indian states. The legislative competence of the Parliament to enact a law for compulsory acquisition by the Union of land and other properties vested in or owned by the state and the sovereign authority of states as distinct entities were also examined. The apex court held that the Indian Constitution did not propound a principle of absolute federalism. 

Kesavananda Bharati vs. State of Kerala[9] the Supreme Court ruled that all provisions of the constitution, including Fundamental Rights, can be amended. However, the Parliament cannot alter the basic structure of the constitution like secularism, democracy, federalism, separation of powers. Often called the “Basic structure doctrine”, this decision is widely regarded as an important part of Indian history.

In S.R. Bommai &Ors. v. Union of India & Ors[10].,a Constitution Bench comprising 9 Judges of this Court considered the nature of federalism under the Constitution of India. Justice A.M. Ahmadi, in Paragraph 23 of his Judgment observed as under: ” the significant absence of the expressions like ‘federal’ or ‘federation’ in the constitutional vocabulary, Parliament’s powers under Articles 2 and 3 elaborated earlier, the extraordinary powers conferred to meet emergency situations, the residuary powers conferred by Article 248 read with Entry 97 in List I of the VII Schedule on the Union, the power to amend the Constitution, the power to issue directions to States, the concept of a single citizenship, the setup of an integrated judiciary, etc., etc., have led constitutional experts to doubt the appropriateness of the appellation ‘federal’ to the Indian Constitution.

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Similarities and Dissimilarities between the Federalism of the US and India

Similarities

1.    Written Constitution-The Constitution of both the US and India is a written Constitution, which accommodates a bureaucratic political structure where both the legislatures practice their particular forces. The Constitutions of both the nations accommodate revising the Constitution to meet the changing conditions and the growing political, monetary, social needs and requests political and financial needs and demands of their particular nations.

2.    Fundamental Rights-The US Constitution has given its citizens fundamental rights such as the right to equality, freedom, right against exploitation, freedom of religion, cultural and educational rights, right to property, and the right to Constitutional remedies, etc. by means of ‘The Bill of Rights’, Part III of the Indian Constitution guarantees the fundamental rights of the people as given in Articles 14 to 34.[11]

3.    The Supremacy of the Federal or Union Government-In both the countries, the federal government works at the centre in which various states have acceded to. In the US, there are 50 states that have associated them to the federal government and in the Indian Union, as many as 29 states and 8 Union territories have accepted this form of government. Both in the US and India, states which have accepted the Federal set up have no individual power to separate from the Central Government or the Union Government. While both the Central as well as State Government is empowered to make laws on subjects given in the concurrent list, the law enacted by the Federal or Union Government will prevail over the law enacted by the states on the same subject in case of a dispute. Thus, the Federal or Union Government is supreme in the present federal structure.[12]

4.    Separation of Powers- Both US and Indian Constitutions provide for separation of powers among three institutions namely executive, legislature and judiciary. Each division is empowered with separate powers. The executive governs the country, the legislature makes laws, and the judiciary ensures justice. President of the US is the chief executive head of the US, whereas the Union cabinet headed by the Prime Minister is the real chief executive body in India. Both the US and India have a bicameral legislature. The upper and the lower houses of US legislature are called as the House of Senate and the House of Representatives respectively, and the Indian Parliament has Lok Sabha and Rajya Sabha as its Lower and Upper house respectively.[13]

5.    Powers of Checks and Balances- The President having chief executive power appoints the members of his ‘Kitchen Cabinet’ and he is the Supreme Commander-in-Chief of Army, Navy and the Air Force. He is empowered to appoint the Chief Justice of the Supreme Court of the US. He enters into treaties with other countries. However, his treaties must be approved by the House of Senate. Otherwise, the treaty will not come into force. Similarly, in India, it is the Prime Minister and his cabinet who exercise real power. They can be removed from power by a successful no-confidence motion passed by both houses of parliament. The policy decisions become laws only after obtaining the requisite majority of the parliament. However, the laws enacted by the parliament are subject to the judicial review of the Supreme Court of India.[14]

Dissimilarities

1.    The Constitution of the US is very rigid than the Indian Constitution-The Constitution of US is very precise and rigid running into only a few pages, whereas the Constitution of India is very bulky containing as many as XXII parts, 395 articles, and ten schedules. Since the US Constitution is very rigid, the provisions meant for amending the Constitution are also very rigid and more formal. The US Constitution has been amended only 27 times. The Indian Constitution, which came into force in the year 1950, has so far been amended 94 times. Therefore, it is easy to amend the Indian constitution hence it is flexible.[15]

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2.    While the US has the Presidential form of Government, India has the Parliamentary form of Government-In the US, the President is the head of the state and so his government is popularly referred as the Presidential form of government. India, on the other hand, has a Parliamentary form of Government as the Prime Minister with his cabinet exercises real power with the President being only a nominal head. The President of US holds office for a period of four years while the Indian Prime Minister holds power for five years as long as his political party enjoys a majority in the Lok Sabha. While the US follows the bi-party system, India has a multi-party system and a complicated process of election.[16]

3.     Differences in the judicial system between the US and India-the US being a developed country have an advanced judicial system. The judicial system of India is however rapidly developing. A Judge in the US holds office as long as he is capable of performing his duties. Indian Constitution, on the other hand, states that a District judge holds his post till the age of 58, a High Court judge holds till the age of 62 and a Supreme court Judge retires at the age of 65.[17]

4.    Difference in citizenship- The Constitution of India recognizes single citizenship. On the other hand, the USA Constitution provides for double citizenship that is a US citizen can have citizenship of two countries, the USA and some other country.[18]

Conclusion

The Indian Constitution is inspired by three noteworthy loyalties. They all show that the structure was planned to be Federal or Quasi – Federal. The main faithfulness of the Indian Constitution is to the Government of India Act, 1935 that gives its substance, blood and a decent piece of its soul. The second faithfulness is to the American Constitution, which gives it a far reaching legal survey of laws and legislative activities, fundamental rights ensured by the constitution. The third steadfastness owed is to the British Constitution. Example of Indian Parliament and State Legislatures is from the British model.

In spite of its assorted tones, federalism basically includes the devolution of intensity and sharing of the basic leadership power. The format of federalism in the U.S. can be named ‘base up’ display, where sovereign previous units surrender capacity to frame an association, and India as ‘top down’ demonstrate, with a solid unitary concentration and common units, ‘confederations’ inside a free association.

Hence there can be no perfect federal State as federalism depends upon the time and distinct environment of the countries for example in India due to more population and other factors there is a need to make constitution flexible as compared to the USA. Further, because of such different cultures in every country, the Federalism of countries will differ.


[1] K.C. Wheare, Federal Government 11, (London: Oxford University Press, 1963)

[2] Raghav Dhoot, Comparative Analysis of Indian and American Federalism, International Journal of Advance Research, Ideas and Innovations in Technology Publication (2018), https://www.ijariit.com/manuscripts/v4i1/V4I1-1310.pdf.

[3] Ibid.

[4] Ibid.

[5] Arnav Upes, Federalism in India, Legal service Publication (December 7, 2019), http://www.legalservicesindia. com/article/ 686/ Federalism-in-India.html

[6] Ibid.

[7] Ibid.

[8] State of West Bengal v. Union of India 1963 AIR 1241.

[9] Kesvananda Bharti v. State of Kerela (1973) 4 SCC 225.

[10] S.R. Bommai & Ors. v. Union of India &Ors AIR 1994 SC 1918.

[11] Knowledge Base, What Is the Difference between the US and Indian Federalism, Ipleaders Publication (April, 9 2016), https://blog.ipleaders.in/difference-us-indian-federalism/

[12] Supra Note 11.             

[13] Ibid.

[14] Ibid.

[15] Id.

[16] Supra Note 11.

[17] Ibid.

[18] Id.