COOPERATIVE FEDERALISM AND ITS ACTIVITY

SUBMITTED BY: SHUBHAM SAINI

ROLL NO: R154216103

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1.Inroduction: the origin of the concept of federalism comes in various approaches. Dicey
stated that federalism is a national constitution for a body of states which desire union and do
not desire unity. He described a federal state as political contrivance intended to reconcile
unity and power with the maintenance of state rights. The essence of a federation is the
existence of union and its states and the division of power between the union and the states
and it is immaterial whether the bond of the union is strong or weak.

Political integrity of union and each state seems to be essential to the federal concept.
In one of the encyclopaedias federal was brought out as a mode of political organization that
unites separate states to allow each to maintain its own fundamental political integrity.
Federal systems do this by requiring that basis policies be made and implemented through
negotiation in some form, so that all the members can share in making and executing
decisions; they stress the virtues of dispersed power centre as a means for safeguarding
individual and local liberties. 

Misconception can also arise if one overlooks or underrates the importance of federal
principle, namely constitutional distribution of power and diverts one’s might modify the
scheme of distribution in special situations or to other peculiarities of the country’s
constitution. A true federation contemplates that the political system must reflect principle by
actually diffusing power among a number of substantially self-sustaining centers. This is
sometimes called non-centralisation. But non-centralisation is different from decentralization.
In the latter, there is a conditional diffusion of specific power, but it is subject to recall by
unilateral decision. It is also different from ‘devolution’, in which a central Government
grants power unilaterally to sub-national units. Non-centralisation in exercising political
power cannot be taken away from the general or state governments without common consent.
Federalism is intended to preserve self-government.

United States as the oldest federation, the separate existence of the states cannot be
impaired, unless the constitutional is thrown away. It is an indestructible union of
indestructible states. In Canada whose federal status was doubted for sometimes, the
distribution of legislative power is a constitutional mandate and is immaterial that there is
learning in favour of centralization. These separation of two legislate domains is shown by

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the fact that the Canadian parliament cannot legislate on matter in the provincial list except in
special cases. In Australian parliament of the Australia Commonwealth under Section 51 and
107 of the Australian Constitution has only the enumerated legislative power, while the
residuary power remains with the states. A dual government with coordinate powers is very
much in existence and in fact preamble to the Commonwealth of Australia Constitutional
Act, 1900 uses expressions implying the federal element. In Switzerland the states have
separate constitution of their own which are guaranteed by the federal constitution. But at the
same time the Constitution in Articles 5, 14, 15 to 17 contains enough provisions to ensure
that federal provisions in the constitution are maintained.

Genesis of idea of federalism in India was first traced in Simon Commission, “Indian
Statutory Commission” appointed in 1927. The Commission was meant for revision of the
Constitution for India. In its report in 1930, the Commission recommended the evolution of
India into “a federation of self-governing units”.

The representatives of Princely States declared during the First Round Table Conference
1930-32) that they would join an “All India federation with a self-governing British India”.
The White Paper embodying the report of Round Table Conference, in March 1933 was
submitted to Joint Select Committee of Parliament, which preferred creation of “All India
Federation”.

By Government of India Act 1935, the background was ready for making India to
become a federation with 11 Governor’s Provinces and 650 Native States, who supposed to
have fifty per cent seats in Council of States. However, execution of the instrument of
accession was the prerequisite to form the Federation, which could not become a reality.

The Cabinet Mission Plan in 1946 contemplated the division of the country into three
Zones, Zone A, Zone B and Zone C, based on the concentration of Hindus and Muslims.
Zones B and C included Muslim dominated areas. The Center was supposed to be uniting
point of these three zones, with its power confined only to Defence, Foreign Affairs and
Communication. Constituent Assembly was to be divided into three sections according to the
Zonal Scheme for evolving provincial and group Constitutions. The proposal of grouping of
Provinces became point of dispute and disagreement, while in general; the Plan was
acceptable to major political parties. The division of three Zones eventually resulted in the
Partition as a precondition for Independence. While presenting the Partition scheme, Lord

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Mount batten insisted the major parties to agree for partition to have the federation with a
strong center, instead of weak center as contemplated in Cabinet Mission Plan.
Generally speaking, the CONFEDERATION is a system where the units dominate the
Union, in Unitary State, the Union dominates the Units, and if Union and Units are co-equal
it is Federation. In a Confederation, there will be an alliance between independent states
where units can secede. In Unitary State the legislatures of Units derive power from Central
Legislature. Vital feature of federation is division of legislative powers, each unit being
sovereign in its own sphere.
Dr B.R. Ambedkar used the term Union to make it clear that states had no right to secede
from the Union to set themselves into separate States. He said that this Union was Federation
and called it a flexible federation to say that it was not as rigid as the American Constitution
was. However the expression Federation was not used deliberately.
In Keshavananda Bharathi1 case, the Supreme Court said that the federal character of
the Constitution was its basic feature. In State of Rajasthan v. Union of India2 it was held that
states could not assert any right based on the supposed federal character of the Constitution.
Supreme Court said: “The Constitution is amphibian in sense that it can move either on the
federal or the unitary plane. When action is taken under Article 356 the movement is on the
unitary plane.”
In West Bengal v. Union of India3 the Supreme Court observed: ‘The Indian Union is
not a true federation”.

Five Essentials of Federal Character:

1. The Constitution must be written
2. It must be rigid
3. It must be supreme law of the land
4. There must be division or distribution of powers between the Union or Federal
Government and the various States or Provinces
5. There must be an independent and impartial judiciary to interpret the Constitution and the
Laws.

1
AIR 1973 SC 1461
2
AIR 1977 SC 1361
3
AIR 1963 SC 1241

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 Indian constitution resembles a federal constitution but in essence it is not a federal
constitution. The unique feature of Indian Constitution is the presence of features which are
necessary for existence of a federation, at the same time there are provisions which make the
Union Government powerful vis-à-vis that of state Governments. Hence Indian Constitution
can be termed as Quasi Federal in nature and Indian Union can be called as ‘Centralised
Federation’.

Former Chief Justice Beg, in State of Rajasthan V Union of India,4 called the
Constitution of India as a ‘ amphibian’. He said that “….. if then our constitution creates a
central government which is ‘amphibian’ in the sense that it can move either on the federal
or the unitary plane, according to the needs of situation and circumstances of the case……..”

Likewise in S.R.Bomai V Union of India,5 the phrase ‘pragmatic federalism’ was used.
In the words of Justice Ahmadi, “….. it would thus seem that the Indian Constitution has, in
it, not only features of pragmatic federalism which, while distributing legislative powers and
indicating the spheres of governmental power of state and central governments, is overlaid
by strong unitary features……….”

2.Federalism: Concept and Definition

There is no accepted definition of federalism. Federal concept was initiated by some

politician. However the terms itself is ambiguous and controversial. Some jurist defined the
federalism as following:

Professor K.C. Wheare said that “the federal principle is the method of dividing the
powers between general and regional governments. Each government within a sphere
coordinate and independent. Existence of coordinate authorities independent of each other is
the gist of the federal principle.”6

According to classical observation of Dicey;-

“Federalism means distribution of the forces of the State among the coordinate bodies
each originating in and controlled by the Constitution.”7

4
AIR 1977 SC 1361
5
AIR 1994 SC 1918
6
WHEARE, FEDERAL GOVERNMENT, 27-28 (1964)
7
A.V.Dicey, Introduction to the Study of the Law of the Constitution, 7th ed. (London: Macmillan, 1908) at 140.

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 Riker8 defines federalism in a very simple way saying that “The Constitution is federal if
it provides for two levels of Government. Each of which has some guaranty of its contained
autonomy within its sphere.

A principle of government that defines the relationship between the central

government at the national level and its constituent units at the regional, state, or local
levels. Under this principle of government, power and authority is allocated between the
national and local governmental units, such that each unit is delegated a sphere of power
and authority only it can exercise, while other powers must be shared.

The term federalism is derived from the Latin root foedus, which means "formal
agreement or covenant." It includes the interrelationships between the states as well as
between the states and the federal government. Governance in the United States takes place at
various levels and branches of government, which all take part in the decision-making
process. From the U.S. Supreme Court to the smallest local government, a distribution of
power allows all the entities of the system to work separately while still working together as a
nation. Supreme Court justice HUGO L. BLACK wrote that federalism meant a proper respect
for state functions, a recognition of the fact that the entire country is made up of a Union of
separate State governments, and a continuance of the belief that the National Government
will fare best if the States and their institutions are left free to perform their separate functions
in their separate ways.

3. Importance of Federalism

Federalism decentralizes our politics in many ways. For example, senators are elected
to represent their state, not the nation. With more levels of government, more opportunities
exist for political participation. Judicial power also is enhanced by federalism. Federalism
also decentralizes our policies. The history of federalism demonstrates the tension between
the states and the national government over who should control policy. The overlapping
powers of the two levels of government mean that most debates over policy become debates
over federalism. States are responsible for most public policies dealing with social, family,
and moral issues. These become national issues when brought to the national government by

8
William Riker’s Federalism: origin, Operation , Significance (1964)

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an aggrieved group. The American states are also policy innovators, being responsible for
many reforms, new ideas, and new policies.

3.1 Importance of Federal Principles in United States 

The federal principle in a federation has two aspects – national unity and state right. This
implies a rigid constitution, the amendment whereof should as a rule, involve the union as
well as the states. The United States constitution achieves this by providing that when
amendments are proposed by federal legislature in constitution, three-fourths of the states
must ratify the amendment before the amendment can become effective. This procedure is
mandatory. It also guarantee to every state in the union a Republican Form of Government
and shall protect each of them against invasion, and on application of legislature or the
executive (when legislature cannot be convened) against domestic violence. There is also
prohibition against states entering into any treaty, alliance or confederation or any agreement
or compact with another state or with a foreign power without the consent of Congress.

United States (unlike India) only one legislative list enumerated the powers of the Union
and the remaining subjects are left to states (except matters expressly prohibited by the
constitution to the States). This is made more clearly by tenth Amendment. The power not
delegated to the United States by the constitution, nor prohibited by it to the States are
reserved to the states respectively or to the people.

Executive authority of the union and that of states in United States runs in parallel
streams. However indirect federal control over state administration may come to be exercised
where the federal government has made ‘conditional grant’ to the states.

The United States carries on the principle of dual sovereignty into judicial system
also. There is a dual system of courts. Unlike India, US does not have a provision for inter-
State Council. But the Governor’s Conference, presided over by the president of US, serves
as a medium for discussing matters of common interest. Besides this, a statutory body-the
Inter-State Commerce Commission-which was set up under federal law of 1887, performs
important functions connected with Inter-State Commerce.

3.2. Importance of Federal Principles in Australia

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 The Australian federation was set under Commonwealth of Australia Constitution
Act, 1900 whose preamble uses the words “Federal Commonwealth”. Before 1900, the
colonies in Australia had (since 1850) their own constitutions still survive, subject to the
provisions of the federal constitution. Division of powers between the states and union is
maintained by special provisions requiring special procedure for amendment, including a
referendum of electors of the Australian House of Representatives. Unlike American
Constitution, Australian Constitution has no express prohibition against an individual state
entering into a treaty. But the exclusive power of legislation on ‘external affairs’ is entering
given to the Australian Commonwealth.

In Australian Constitution topics enumerated in the constitution as within legislative

competence of parliament of the commonwealth of Australia, some are regarded as exclusive
powers of the commonwealth, while rest are regarded as concurrent powers of the
Commonwealth and states. The Exclusive powers are: seat of Government of
Commonwealth, places acquired for public purposes, federal public services, customs, excise,
bounties, surrendered territory, navel and military defences and forces and coinage – this had
led to indirect emergence of concurrent list in Australia under Section 107. Inconsistency
between federal and state law on concurrent matter is to be resolved by applying section 109.
Executive power in Australia is vested in Governor-General for Commonwealth. However it
seems that the Commonwealth can spend its finances even on matters assigned to the states.

Australia does not have a system of dual courts for disputes under Commonwealth
legislature and disputes under state legislation respectively. But disputes between the two are
exclusively within original jurisdiction of the High Court of Australia. Under section 105 –
Australian Loan Council has been set up to regulate public borrowing, not only through
federal loans but also through state loans raised in the name of and on the security of
commonwealth. By regulating public finances, the council can function as an effective body
for union-state coordination, particularly because the loan agreements are justifiable.

3.3. Importance of Federalism in India

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 The Federal scheme in the Constitution of India is adopted from the Government of
India Act, 1935. The said Act made an innovation upon several precedents to make a treble
enumeration of powers, in order to make it as exhaustive as possible and also to minimize
judicial intervention and litigation. The three legislative lists (I, II and III) respectively
enumerated the powers vested in the Federal Legislature, the Provincial Legislature and to
both of them concurrently (Section 100). If however, a matter was not covered by any of the
three Lists that would be treated as a residuary power of the Federal Parliament (Section 104)
and Section 107 provided for predominance of Federal law in case of inconsistency with a
Provincial Law, in the concurrent sphere.
Borrowing the pattern of treble enumeration from the Government of India Act, 1935,
the Constitution of India makes a three-fold division of powers namely;

a) List I or the Union List – It contains subjects over which the Union shall have exclusive
powers of legislation, including 97 items. These include defence, foreign affairs, banking,
currency and coinage; union duties and taxes and the like.

b) List II or the State List – It comprises of 66 items or entries over which the State
Legislature shall have exclusive power of legislation, such as public order and police, local
Government, public health and sanitation, agriculture, forests and fisheries, education, State
taxes and duties, and the like.

c) List III or the Concurrent List – It gives concurrent powers to the Union and the State
Legislatures over 47 items, such as Criminal Law and procedure, Civil Procedure, marriage,
contracts, torts, trusts, welfare of labour, social insurance, economic and social planning.

Thus the framers of the Indian Constitution attempted to exhaust the whole field of
legislation as they could comprehend, into numerous items, thus narrowing down the scope
for filling up the details by the judicial process of amplifying the given items. Besides,
wherever any conflict could be anticipated, the Constitution has given predominance to the
Union jurisdiction, so as to give the Federal system a strong central bias. Similarly, in all the
cases which have come up to the Supreme Court, the Court has upheld the jurisdiction of the
Union Parliament. Thus, in case of overlapping, the power of the State Legislature to legislate
with respect to matters enumerated in the State List has been made subject to the power of the
Union Parliament to legislate in respect of matters enumerated in the Union and Concurrent

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Lists, and the entries in the State List have to be interpreted accordingly. Similarly, in the
concurrent sphere, in case of repugnancy between a Union and a State law relating to the
same subject, the former prevails. If, however, the State law was reserved for the assent of the
President and has received such assent, the State law may prevail notwithstanding such
repugnancy, but it would still be competent for Parliament to override such State law by
subsequent legislation.

These apart, the vesting of residual power under the Constitution follows the
precedent of Canada, for it is given to the Union instead of the States as in USA and
Australia. The Constitution of India vests the residuary power i.e.; the power to legislate with
respect to any matter not enumerated in anyone of the three Lists, - in the Union Legislature
(Article 248). However, the final determination as to whether a particular matter falls under
the residuary power or not is that of the Courts.

4. Meaning of Co-operative Federalism

Co-operative federalism is a political and constitutional concept developed in the

early 20th century that emphasizes the decentralization of power and a not necessarily equal
sharing of governmental responsibilities between federal, state and local agencies and
institutions. National and state governments tackle issues together in a cooperative fashion as
opposed to a system in which policy is imposed on local administrators by an all-powerful
federal regime. As a result, both national and state governments are simultaneously
independent and interdependent with an overlap of functions and financial resources, but it is
difficult for one person or one institution to accumulate absolute power. In addition, this
distribution of government provides multiple points of access for citizens interested in
influencing state and federal institutions, laws and policies.

The idea was first introduced in the United States during the New Deal era of the
1930s and, as a result, the constitutional concept of dual federalism nearly disappeared.
Under dual federalism, the U.S. national government was granted a limited number of powers
with the states otherwise sovereign. The states were considered to be as powerful as the
federal government within their respective political spheres and each was responsible for
specific government functions that did not overlap. States with a vested interest in prolonging

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an economy based on slavery relied on dual federalism to support their rejection of federal
government intervention.

4.1. Cooperative Federalism in America

In the American federal system, there are limitations on national government's ability
to carry out its policies through the executive branch of state governments. For example,
in Printz v. United States,9 the Court held that the national government could not directly
require state law enforcement officers to conduct background checks under the Brady
firearms legislation. The court explained that prior decisions warned that "this Court never
has sanctioned explicitly a federal command to the States to promulgate and enforce laws and
regulations." And yet, there are significant advantages in a federal system to obtain state
assistance in the local implementation of federal programs. Implementing such programs
through national employees would significantly increase the size and intrusiveness of the
national government. Moreover, local implementation may assure that these programs are
implemented in ways that take local conditions into account.

For this reason, Congress has often avoided adoption of completely nationalized
programs by one of two devices. In the first, Congress creates a delivery system for federal
programs in which the national government encourages local implementation of a federal
program by providing significant matching funds. In this context, the phrase may be found in
a number of Supreme Court and lower court federal cases. The most frequent early use of the
phrase may be found in a series of cases describing the paradigm for federally sponsored
welfare programs such as medical assistance or the former Aid to Families with Dependent
Children (AFDC) programs in which a participating state's program is financed largely by the
Federal Government, on a matching fund basis, subject to federal mandatory regulations.
More recently, the phrase has been used in connection with other federal programs built on
the cooperative federalism model.10  Here, the motivation for State compliance is that absent
state compliance with federal conditions, the state loses significant federal funding.

The second method of encouraging states to implement federal programs is described

in New York v. United States11. In this form, the Congress states that it will take over the
regulation of an activity at the national level, unless the State itself implements its own
9
521 U.S. 898 (1997)
10
California v. U.S. 438 U.S. 645 (1978) (Reclamation Act) and Schaffer v. Weist  546 U.S. 49 (2005).
11
505 U.S. 144 (1992

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program of regulation meeting minimum federal standards.12Here, the motivation for State
compliance is that absent state regulation, the state loses power over the regulated area
entirely. In New York v. United States, the court explained:

"....where Congress has the authority to regulate private activity under the Commerce Clause,
we have recognized Congress' power to offer States the choice of regulating that activity
according to federal standards or having state law pre-empted by federal regulation13. . This
arrangement, which has been termed “a program of cooperative federalism,” Hodel, is
replicated in numerous federal statutory schemes. These include the Clean Water Act,
Arkansas v. Oklahoma, (Clean Water Act “anticipates a partnership between the States and
the Federal Government, animated by a shared objective”); the Occupational Safety and
Health Act of 1970,  Gade v. National Solid Wastes Management Assn.14, .

While the federal system places limits on the ability of the national government to
require implementation by a State executive branch, or its local political subdivisions, that
limitation does not apply in the same way to State judicial systems. In part, this is because the
founders understood that state courts would be courts of general jurisdiction, bound to apply
both state and federal law. In part, it is because the State courts adjudicate cases between
citizens who are bound to comply with both state and federal law. When the Congress seeks
to establish federal legislation which governs the behavior of citizens, the Congress is free to
choose among three judicial enforcement paradigms. It may open both federal or state courts
to enforcement of that right, by specifically providing concurrent jurisdiction in the federal
courts. It may grant exclusive jurisdiction to the federal courts, or it may choose to leave
enforcement of that right to civil dispute resolution amongst parties in State court.

4.2. Co-operative Federalism in Australia

The constitution effected an agreed transfer of powers from colonial governments to

the new Commonwealth covering a range of subject matter areas set out, for the most part in
section 51. It also has plenary legislative power with respect to Australian Territories, such as
the Northern Territory and the Australian Capital Territory. Within the areas of
Commonwealth power specified in section 51 there are indicators of opportunities for
12
Hills, Roderick M. (1998). "The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and "Dual Sovereignty"
Doesn'tAuthor". Michigan Law Review 96 (4): 813–944.

13
Hodel v. Virginia Surface Mining & Reclamation Association 452 U.S. 264 (1981) See also FERC v. Mississippi

14
505 U.S 88 (1992)

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cooperative federalism in the exercise of legislative powers. So the Commonwealth
Parliament may make laws for the peace, order and good government of the Commonwealth
with respect to:

(xxiv) The service and execution throughout the Commonwealth of the civil and criminal
process and the judgments of the courts of the States.
(xxv) The recognition throughout the Commonwealth of the laws, the public Acts and
records, and the judicial proceedings of the States.
(xxxiii) The acquisition with the consent of the State, of any railways of the State on terms
arranged between the Commonwealth and the State.
(xxxiv) Railway construction and extension in any State with the consent of that State.
(xxxvii) Matters referred to the Parliament of the Commonwealth, by the Parliament or
Parliaments of any State or States, but so that the law shall extend only to States by whose
parliaments the matter is referred or which afterwards adopt the law.
(xxxviii) The exercise within the Commonwealth, at the request or with the concurrence of
the Parliaments of all the States directly concerned, of any power which can at the
establishment of this Constitution be exercised only by the Parliament of the United Kingdom
or by the Federal Council of Australasia.

Chapter III of the constitution, dealing with the judicature, contains provisions under
which the courts of the various States are to be repositories for the exercise of such federal
jurisdiction as is conferred upon them by the Commonwealth Parliament. This is in addition
to the power that the Commonwealth Parliament has to create its own courts and define their
jurisdiction. Section 77 of the constitution authorises the Parliament to make laws defining
the jurisdiction of federal courts and laws:

Section 77(iii) Investing any court of the State with federal jurisdiction. So too community
law can be administered in national courts as well as in the Courts of the Community. Section
80 of the constitution, which requires that the trial on indictment of any offence against any
law of the Commonwealth be by jury, also requires that “... every such trial shall be held in
the State where the offence was committed, and if the offence was not committed within any
State, the trial shall be held at such place or places as the Parliament prescribes.” It is also
linked to the Commonwealth’s ability to use State courts for the exercise of federal

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jurisdiction arising under the criminal law of the Commonwealth. It also is linked to the
Commonwealth’s ability to use State prisons15.

In Chapter IV there are provisions mandating distribution of Commonwealth revenue

to the States – see ss 87, 89, 93 and 94. Section 96, which provides for conditional financial
grants from the Commonwealth to the States, supports the uniform income tax scheme. The
Commonwealth Parliament passed an Act to grant general revenue to the States on the
condition that they did not impose their own income tax. Grants made under section 96 have,
by way of the conditions attaching to them, allowed the Commonwealth to exercise powers
with respect to education, health, housing, the environment and other areas not covered by its
legislative responsibilities. It is in form, if not in substance, a provision which requires
cooperation in the limited sense that no State is obliged to accept a financial grant under s 96
on conditions which it does not regard as acceptable. Section 105 of the constitution allows
for the Parliament of the Commonwealth to take over from the States their public debts.
Although initially limited to debts existing at the time of federation, that limitation was
removed in 1910 by referendum. In 1928 section 105A was added to the constitution by
referendum. It authorises the Commonwealth to make agreements with the States with
respect to their public debts. The constitutions of the States reflecting, in the case of Western
Australia, its pre-federation colonial constitution, are continued by section 106 of the
Commonwealth Constitution. The powers of the State Parliaments are saved by section 107,
as are the laws of the various States by section 108. States may surrender territory to the
Commonwealth under section 111, again an essentially co-operative exercise. It was by such
a surrender that the Australian Capital Territory was created and similarly the Northern
Territory of Australia. Section 118 provides for full faith and credit to be given throughout
the Commonwealth to the laws, public Acts and records and judicial proceedings of every
State. Every State is required by section 120 of the constitution to make provision for the
detention in its prisons of persons accused or convicted of offences against the laws of the
Commonwealth and for the punishment of the persons convicted of such offences. Other
exercises of power which require the consent of the States, include the alteration of their
limits and the creation of new States (ss 123 and 124). As may be seen from this review the
constitution provides for what can properly be described as cooperative federalism under

15
Co-operative federalism inAustralia – an intellectualresource for Europe? I by Justice R S French at pp. 10-17

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which, by making suitable arrangements, Commonwealth and States, acting together, can “...
achieve objects that neither alone could achieve”.16 Such cooperation may relate to the
exercise of legislative, executive or judicial power. Importantly, and in addition to the
specific co-operative arrangements 12 for which the constitution provides, there is a record of
intergovernmental agreements between the Commonwealth, the States and the self-governing
territories to deal with national problems which need to be attacked by legislation from each
of them. Such agreements form the political foundation for schemes of complementary and
interlocking legislation by all the polities concerned.

4.3. Mechanism of Co-operative Federalism under Australian Constitution

Specific mechanisms of co-operative federalism in Australia include:

1. Intergovernmental agreements providing for:

– uniform legislation enacted separately by each participating polity;

– interlocking legislation by Commonwealth, State and Territory parliaments which

may involve adoption of a standard law enacted by one polity.

2. Delegation of legislative power:

– by the Commonwealth under the territories’ power;

– by the Commonwealth under section 51(xxxviii) of the constitution.

3. Referral of State legislative power to the Commonwealth on a particular subject or to

support a particular statute.

4. Executive cooperation.

16
Deputy Federal Commissioner of Taxation (NSW) v WR Moran Pty Ltd (1939) 61 CLR 735 at 774 (Starke J).

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All Australian governments – federal, state and local – share a responsibility to make our
federal system work effectively for the benefit of all Australians.17

COMPONENTS OF COOPERATIVE FEDERALISM18

PRINCIPLES LEGAL AND CULTURAL PRACTICES

INSTITUTIONAL
ARRANGEMENTS
KEY A commitment to A commitment to A commitment to
COMMITMENTS supporting the best developing new inter- improving processes
practice principles of: jurisdictional institutions and realigning

• Subsidiarity – and an improved organisational

proximity of cooperative federalism cultures to improve

government to the architecture: cooperative

community • Legal mechanisms to federalism:

• Alignment of facilitate cooperation – • Removing barriers to

responsibilities – the including referral of cooperation –
allocation of roles and powers, ‘mirror’ legislation including allegiances,
responsibilities to the and complementary loyalties and ‘silo’
level of government legislation to harmonise mentalities of State
with the corresponding laws and Territory-based
geographical scale • Institutional and jurisdictions, agencies

• Cooperation – administrative and professions

engagement and arrangements to facilitate • Responding

cooperation between horizontal cooperation nationally – ‘joining
the levels of (between States and up’ systems and
government, including Territories) and vertical programs to tackle
17
COMMON CAUSE: STRENGHENING AUSTRALIA’S COOPERAIVE FEDERALISM by PROFESSOR JOHN WANNA, AUSTRALIA AND NEW
ZEALAND SCHOOL OF GOVERNMENT, PROFESSOR JOHN PHILLIMORE, PROFESSOR ALAN FENNA WITH DR JEFFREY HARWOOD JOHN
CURTIN INSTITUTE OF PUBLIC POLICY, CURTIN UNIVERSITY OF TECHNOLOGY at pp. 4-5

18
1bid

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 the comity principle cooperation (between complex and cross-
States, Territories and the sectoral problems,
Commonwealth) improve integrated
service delivery and
set common goals and
objectives

LEGAL AND CULTURAL PRACTICES

PRINCIPLES INSTITUTIONAL
ARRANGEMENTS
AREAS FOR REFORM • CAF should develop a • State and Territory
forward agenda to facilitate governments should explore
horizontal cooperation, various ways to develop and
including identifying sustain cooperative and
opportunities to harmonise collaborative cultural
laws and to share policy practices
innovation and best practice • CAF should consider
initiatives undertaking a project to
• COAG and its operations identify current successful
should be formalised through collaborative cultural
an Intergovernmental practices and to develop best-
Agreement practice models and/or
• The relationship between guidelines for such practices
COAG and Ministerial
Councils should be clarified,
with the latter undertaking
greater community

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 engagement
• Governments should give
consideration to establishing
innovative, purpose-built
bodies where required to drive
reforms
• The five year review of the
IGA on Federal Financial
Relations should consider
how to provide better and
more transparent resource
deployment within the
Federation
• The Commonwealth should
work with the States and
Territories to consider and
propose constitutional reform
to promote cooperative
federalism, including
facilitating cooperative
legislative schemes, providing
a role for the States and
Territories in appointing High
Court judges and giving
States and Territories the
opportunity to initiate
referenda

4.4. Benefits of Reform

o Checking the concentration of power at any level of government

o Providing greater choice and flexibility for citizens, provide greater diversity of policy
provisions and allow greater customisation of policy to suit local needs
o Allowing greater scope for innovation in implementation strategies and delivery systems

18
 o Encouraging competition between jurisdictions in the provision of quality services and
policy provisions
o Enhancing creativity and innovation among governments and policy delivery networks.

 CAF :Council for the Australian Federation

 COAG : Council of Australian Governments

4.5. Co-operative Federalism in India

The Government of India Act, 1919 laid down the foundation of a federal form of
government in India. It introduced diarchy in India. A federal structure results in the division
of powers between the center and the units.
The Government of India Act, 1935 also laid down the provisions for a federal form of
government in India. It provided for the distribution of legislative powers between the union
and the provinces.
          The Government of India Act, 1935, further provided for the cooperative relationship
between the provinces. Provisions were laid down to promote harmony and to resolve the
differences between the various provinces.
          Sections 131, 132 and 133 of the Government of India Act, 1935 laid down provisions
for resolving the disputes related to waters. These dealt with the problems relating to inter
Province Rivers and river valleys.
          Section 135 of the Government of India Act, 1935 laid down provisions for the
creation of councils dealing with the coordination between the various provinces of the
British India. The need for creating a cooperative relation between the provinces was felt
even before the independence.
          The Government of India Act, 1935 laid down the foundation for the creation of a
cooperative relationship in the federal structure. The present Constitution has elaborated the
principles which were laid down under the Act.
4.5.1. Co-operative Federalism under Indian Constitution
          There has been a felt need for a change from competitive to cooperative relationship in
the working of the federal constitution. Cooperative federalism means that the centre and the

19
states share a horizontal relationship and neither is above the other. This trend has been
promoted by three factors:
(1)   the exigencies of war when for national survival, national efforts takes precedence over
fine points of Centre state division of powers;
(2)   technological advances means making of communication faster;
(3)   the emergence of the concept of social welfare state in response to public demands for
various social services involving huge outlays which the governments of the units could not
meet by themselves out of their own resources.
The concept of cooperative federalism helps the federal system, with its divided
jurisdiction to act in unison. It minimizes friction and promotes cooperation among the
various constituent governments of the federal union so that they can pool their resources to
achieve certain desired national goals19.
The Constitution of India provides various provisions dealing with the cooperative
aspect of federal structure. The constitution makers deliberately provided for such features in
the constitution in order to ensure the smooth working of the government.

4.5.2. Full Faith and Credit Clause

The several States in the U.S.A., before the creation of the Federation. Were
sovereign entities and each was thus free to ignore the obligations created under the laws, or
by the judicial proceedings of the other. It was, therefore, necessary to evolve a mechanism
by which rights legally established in one State could be given nation-wide application, and
so there is the Full Faith and Credit Clause in the U.S. Constitution. 20 On the same model, the
Indian Constitution has Art. 261
Article 261 of the Constitution of India provides that full faith and credit shall be
given throughout the territory of India to all the public acts, records and judicial proceedings
of the Union and of every State. This is a step to promote cooperation and faith between the
centre and the states.
Clause (2) empowers the Parliament to lay down by law:
(a) the mode of proof, as well as,
(b) the effect of acts and proceedings of one state in another state.

19
Corwin defines co-operative federalism thus: “The States and National Governments are regarded as mutually complementary parts of
a single governmental mechanism all the whose powers are intended to realise the current purposes of government according to their
applicability to the problems in hand.”THE CONST. OF THE U.S.A., SENATE DOC., 14 (1953).
20
Art. IV, Sec. 1; Corwin, WHAT THE CONST. MEANS TO-DAY, 199 (1973); JACKSON, Full Faith and Credit—Lawyer’s Clause of the Const., 45
Col. LR 1 (1945).

20
 According to clause(3), final judgments or orders delivered or passed by civil courts
in any part of the territory of India can be executed anywhere in the country according to law.
The full faith and credit clause promotes uniformity and unity throughout the territory
of India. It develops a sense of harmony and unity in the country. It promotes cooperation
between the states and the centre and gives due credit to all the public acts.
4.5.3. Inter State Council
Article 263 provides that the President may by order appoint an Inter state Council if
it appears to him that public interest would be served by its establishment. The President may
define the organization, procedure and duties of the Council. Generally, it may be charged
with the duty of:
(a) inquiring into and advising upon disputes which have arisen between States.
(b) investigating and discussing subjects in which some or all of the States, or the Union and
one or more of the States, have a common interest;
(c) making recommendations upon any subject and, in particular, recommendations for the
better coordination of policy and action with respect to that subject.
In T.N. Cauvery Sangam v. Union of India21, the Supreme Court has held that once the
Central government finds that the dispute referred to in the request received from the State
government cannot be settled by negotiations, it becomes mandatory for the central
government to constitute a tribunal and to refer the dispute to it for adjudication. Further, if
the central government fails to make such a reference, the court may, on an application under
Article 32 by an aggrieved party issue mandamus to the central government to carry out its
statutory obligation.
Sarkaria Commission has again recommended the setting up of an all-embracing
Inter-State Council under Art. 263. Since 1967, parties or coalition of parties other than the
one running the Central Government, have come in power in the states. These state
Governments of diverse hues have different views on regional and inter-state problems. In
such a situation, the setting up of a standing Inter-State Council with a comprehensive charter
under Art. 263 has become an imperative necessity. The Council is to consist of the Prime
Minister as the Chairman, all State Chief Ministers and all Union Cabinet Ministers dealing
with the subject of common interest to the Union and the States as members.22

21
(1990)3 SCC 440
22
M P JAIN, INDIAN CONSTITUTIONAL LAW, 5TH EDN 2003, VOL 1 p. 832

21
 The Council is to be a recommendatory body. It should be charged with duties in
broad terms embracing the entire gamut of clauses (b) and (c) of Art. 263. The Council
should have such investigative, deliberative and recommendatory functions as would fall
within the ambit of cls. (b) and (c) of Art. 263.23
In 1990, in Dabur India Limited v. State of Uttar Pradesh24, the Supreme Court
suggested the setting up of a council under Article 263 to discuss and sort out problems of
central state taxation.
4.5.4. Zonal Councils
In between the Centre and the States, Zonal Councils have been introduced in India
by the States Reorganisation Act, 1956. These councils have been created in order to bring
the states of a particular region in close conformity with each other. The Zonal Councils were
created as an instrument of intergovernmental consultation and cooperation mainly in socio
economic fields and also to arrest the growth of controversies and particularistic tendencies
among the various States.25
There exists five Zonal Councils:
(1)  Northern-comprising of the states of Punjab, Haryana, Himachal Pradesh, Rajasthan,
Jammu and Kashmir and the union territories of Delhi and Chandigarh.
(2)  Eastern- comprising of the states of Bihar, West Bengal, Orissa and Sikkim.
(3)  Western- comprising of the states of Gujarat, Maharashtra, Goa and the union territories
of Daman and Diu and Dadra and Nagar Haveli.
(4)  Central- comprising of the states of Uttar Pradesh and Madhya Pradesh
(5)  Southern- comprising of the states of Andhra Pradesh, Tamil Nadu, Karnataka and
Kerala and the union territory of Pondicherry.

Each State included in a zonal council enjoys a complete equality of status as:
(1)  each state has an equality of representation in the council;
(2)  each Chief Minister is to act as the Vice chairperson of the council in rotation for a year;
(3)  meetings of the council are to be held in each member state by rotation;
(4)  the Chief Secretary of a member state is to act as the Secretary of the council in rotation
for one year.

23
Report, 237-241
24
AIR 1990 SC 1814
25
LOK SABHA DEBATES, December 23, 1955, Vol. I, 880

22
 A zonal council is an advisory body and has no executive or legislative function to
perform. The Sarkaria Commission has expressed the view that the Zonal Councils have not
been able to fulfil their aims and objections. The commission has recommended that these
Councils be appointed under Art. 263 so that they get the status of constitutional bodies
functioning in their own right. The meetings of the Zonal Council should be held in camera
and at regular intervals, in any case not less twice a year.26
4.5.5. River water Disputes
India has a number of inter-State rivers and river valleys. The Constitution makers
anticipated that with the accent on development of irrigation and power resources, some
inter-State disputes would arise regarding sharing of river-waters. The waters of an inter-
State river pass through several states. Such waters cannot be regarded as belonging to any
single riparian state. The waters are in a state of floe and, therefore, no state can claim
exclusive ownership of such waters. No state can legislate for the use of such waters since no
State can claim legislative power beyond its territory.27
Article 262(1) empowers the Parliament to provide by law for adjudication of any
dispute or complaint with respect to the use, distribution or control of the waters of any
interstate river or river valley.28
Under Art. 262(2), Parliament may also provide that, notwithstanding anything in the
Constitution, neither the Supreme Court nor any other court shall exercise jurisdiction in
respect of any such dispute or complaint. Art. 131 provides for the decision of inter-State
disputes by the Supreme Court, but Art. 262 provides that the class of disputes mentioned
therein may be excluded by Parliament from the purview of the Supreme Court.
A river board may be established by the Central government for advising the
governments interested in relation to matters concerning the regulation or governance of an
inter State river or river valley.
4.5.6. Planning and Finance
Planning makes inter governmental cooperation very necessary for in a federal
structure, the governments are not arranged hierarchically. The Directive Principles of state
Policy emphasize towards economic democracy, economic empowerment of the weaker
sections of the society, and a welfare state without which political democracy does not have
much meaning for the larger section of the poor people in the country.

26
Report, 240-243
27
In Re Cauvery Water Disputes Tribunal, AIR 1992 SC 522
28
See under entry 56, List I

23
 In 1950, the Government of India set up the Planning Commission with the Prime
Minister as its chairman. It has a vice president and a few Central ministers and a few non
official experts as its members.
It has been assigned the following functions:
(1)       to make an assessment of material, capital and human resources of the country and
investigate the possibilities of augmenting such of these resources as are found to be deficient
in relation to the nation’s requirements;
(2)       to formulate a plan for the most effective and balanced utilization of the country’s
resources;
(3)       on a determination of priorities, to define the stages in which the plan should be
carried out and propose the allocation of resources for the due completion of each stage;
(4)       to indicate the factors which are tending to retard economic development and
determine the conditions which in view of the current social and political situation, should be
established for the successful execution of the plan;
(5)        to determine the nature of the machinery which will be necessary for securing the
successful implementation of each stage of the plan in all its aspects;
(6)        to appraise from time to time the progress achieved in execution of each stage of the
plan and recommend the adjustments of policy and measures that such appraisal might show
to be necessary; and
(7)        to make such interim and ancillary recommendations as might on a consideration of
the prevailing economic conditions, current policies, measures and development programmes,
or on an examination of such specific problems as maybe referred to it for advice by the
Central or State governments.

4.5.7. National Development Council

The National Development Council was established in 1952 in order provide a
mechanism to give sense of participation to the states in the planning processes. It consists of
the Prime Minister, the State Chief Ministers, representatives of the Union Territories and
members of the Planning Commission. In October, 1967, the membership was enlarged by
the addition of all members of the Union cabinet and Chief Ministers of the Union
Territories.
The functions of the council are to strengthen and mobilize the efforts and resources
of the nation in support of the plans; to promote common economic policies in all vital
spheres and to ensure the balanced and rapid development of all parts of the country.

24
 The council reviews the working of the plan from time to time, considers important
questions of social and economic policy affecting national development, and recommends
measures for the achievement of the aims and targets set out in the national plan.
The Sarkaria Commission has suggested that it should be renamed as National
Economic and Development Council (NEDC) and be constituted under Article 263. The
NEDC will then have adequate flexibility and a measure of authority as it will have the
constitutional sanction.29
4.5.8. Other Statutory Bodies
A number of statutory bodies have been set up for promoting Centre-State co-
operation and co-ordination. A few of these are below.
4.5.8. (a)   University Grants Commission:
A body of great importance in the field of university education is the University
Grants Commission. According to the Constitution, university education is a concurrent
subject, but co-ordination and maintenance of standards in this area is a Central charge, and
it is to fulfil this function that Parliament has created the Commission under the University
Grants Commission Act, 1956. It gets its funds from the centre only. It grants fund both for
maintenance and development to central universities while only for maintenance to state
universities.
4.5.8. (b)  Other bodies to coordinate higher education:  The Indian Medical Council,
created under the Indian Medical Council Act, 1956, the All India Council for Technical
Education, formed under the All India Council for Technical Education Act, 1987 are some
of the bodies regulating and coordinating higher education in India.
4.5.8. (c)   Damodar Valley Corporation: The Damodar Valley Corporation, a joint
enterprise of centre and the two states of Bihar and West Bengal, has been established under
a Central law enacted under Art. 252 to  develop the inter-State valley of the Damodar River
for irrigation, power and flood control. The Corporation consists of three members appointed
by the Central Government in consultation with the two State Governments. In discharging
its functions, the corporation is to be guided by instructions issued by the Centre on questions
of policy.
4.5.8. (d)    Drugs Consultative Committee: Section 7 of the Drugs Act, 1940, empowers
the Central Government to constitute the Drugs Consultative Committee to advise the Central
and State governments on any matter tending to secure uniformity throughout India in the

29
On Planning, see, REPORT OF THE SARKARIA COMMISSION, 361-388

25
administration of the Act. The committee consists of two representatives of the central
government and one representative of each of the state governments.
4.6. Working of cooperative federalism in India- analysis
          The planning commission is very instrumental in providing funds and grants to the
states for the purpose of carrying on the centre’s development plans. The grants are given
under the provisions of Article 282. These grants are provided for the implementation of the
centre’s programmes in the states and are an effective mode of controlling the states by the
center. The States want greater grants from the center but are unwilling to participate in
increasing their funds by taxation. All the states want to increase their shares of grants but do
not want to take any responsibility. It is required that the richer states have a greater share in
raising fund.
          Further, the grant of funds by the center to the states is politically motivated and the
center tends to promote some states over the others. The states blame the center for not
providing adequate funds for the purpose of carrying on various developmental programmes.
          There are various conflicts regarding the sharing of river water. States do not want to
help the other water deficit states and there is requirement to make the states to act for the
overall benefits of the country and not act for their individual interests.
          As the Zonal Councils are only advisory bodies, they have not achieved much. The
Sarkaria Commission has expressed that the Zonal Councils have not been able to fulfill their
aims and objectives. It recommended that these should be reactivated and appointed under the
provisions of Article 263 to give them a constitutional status. With a greater authority, the
Zonal Councils will be able to achieve more.
4.7. Position in other Federations
          The exigencies of war and financial crisis have lead to the development of cooperative
features in all the federal constitutions. A strong cooperative relationship ensures that the
nation is unified despite its federal nature.
In U.S.A., the intergovernmental cooperation has been built mostly around the system of
conditional central grants to the states for centrally sponsored schemes. The Constitution of
USA also provides for the inter governmental tax immunities between the center and the
states.
In Australia, financial difficulties of the state lead to the creation of Commonwealth
Grants Commission as well as the Australian Loan Council in 1927. The council comprises
of the Prime ministers of center and states and meets once a year. This arrangement has
reduced competition among the governments for funds. Further, expedients like conditional

26
grants, loans by the center to the states, income tax sharing between the center and the states
with accent on state financial needs, have also come to be adopted to promote inter
governmental cooperation.
In Canada also, cooperative techniques like Central grants to provinces, delegation of
power by the center to the provinces, referential legislation have been developed.
Thus, a cooperative relationship, in which the two powers are horizontally arranged instead
of hierarchically, has become a rule in all the federations as it leads to the most productive
outcome.
4.8. India emerging into a “Cooperative Federation”
Single citizenship, All India Civil Services, Unified Judiciary, single Election
Commission, the Finance Commission, and the Planning Commission also establish the
unitary character of our constitution. Indian Constitution is not laissez faire federal
Constitution. Paras Diwan, an eminent law writer said in his book,30 “It is essentially a
cooperative federation, where two sets of governments are not antagonistically independent
of each other but coordinate, cooperate and collaborate in each other’s efforts “to secure to all
its citizens justice, social, economic and political, liberty of thought expression, belief, faith
and worship: equality of status and of opportunity: and to promote fraternity assuring the
dignity of the individual and the unity and integrity of the Nation.”(Preamble of the Indian
Constitution)
Paul Appleby31 calls the Indian Constitution as extremely-federal. The so called
autonomy of the states appears to be a myth or practically impossible in certain
circumstances. The biggest threat to the autonomy of the states is the provisions like Article
356. The Sarkaria Commission which probed into the centre and state relations suggested
exhaustive measures to improve the state autonomy and strengthen the cooperative
federalism, the basic concept of our constitution. With the advent of regional parties gaining
popularity with their relentless fight against the misrule by Central Governments ignoring the
needs of some states, the demand for more powers increased. The unitary features of the
Constitution are coming under the constant attack from the states, which are asking for more
share in tax revenue and legislative powers.

5. Conclusion

30
“Indian Constitutional Law p 6
31
As quoted by H.M.Seervai in his book “Commentaries on Indian Constitutional Law”

27
          A cooperative relationship between the Centre and the States is the need of the hour.
Without a cooperative relationship, it will not be possible to move ahead in the present
economic world. The various technological advancements, economic and trade activities and
external aggressions across the world call for a cooperative relationship between the centre
and the states in order to provide stability and security in the country. The Sarkaria
Commission report has also emphasized on the creation of a strong centre state relationship.
Cooperative federalism is the means to achieving a strong nation. There is requirement of
giving greater flexibility and authority to the National development council by constituting it
under the provisions of Article 263.

          Further, there should be greater involvement of the states in the planning process and
greater coordination in raising the funds for meeting the demands of the developing economy.

          Thus, a cooperative relationship is developed by the creation of various councils which

work for the benefit of the states as well as the centre and also by giving full credit to all the
acts throughout the territory of India.

5.1.Suggestions

          For a more effective cooperative federal relationship it is required that the following
steps are taken:

(a)  The Zonal Councils should be reorganized under the provisions of Article 263 to give
them a constitutional status, thus providing them with greater authority and flexibility for
proper functioning.

(b)  The participation of the states in the planning commission and planning process should
be increased so as to ensure the formulation of more object oriented plans which seek to
promote the welfare of all the states.

(c)   The states should be encouraged to take a more active part in raising the funds for their
developmental works. More grants should be provided to the poorer states which cannot raise
funds as compared to the richer states.

(d)  The grants given by the centre to the states should not be politically motivated but based
on the requirements of the states.

(e)   The states should act for the overall development of the country and should not act only
for their own individual interests.

Thus, it is required that the cooperative federalism is encouraged over the competitive
relationship between the centre and the states.

28
 Bibliography
Primary Sources:

 The Constitution of the United States 1789

 Commonwealth of Australia Constitution Act. 1900
 THE CONSTITUTION OF INDIA, 1950

Secondary Sources:

29
  Panday J.N.; Constitutional Law of India, 10th Edition.
 Basu D.D., Comparative Constitution, 2nd edition. 2007.
 Basu’s D.D. select Constitution of the world, 4th edition. 2009.
 Datar P Arvind on the Constitution of India, 2nd edition. Reprint, 2010.
 Jain M.P., Indian Constitutional Law, 6th edition. 2010.

Articles:

 Singh Anusha; Development of Cooperative Federalism .

 Murtaza Sana; Cooperative Federalism .
 Wanna,  J.,  Phillimore,  J.,  Fenna,  A.  and Harwood, J. 2009. Common cause: Streng
thening Australia's cooperative federalism. Brisbane: Council for the Australian Feder
ation.  .
 French R S; Co-operative Federalism in Australia – an intellectual resource for
Europe? I
 Bhatacharya Harihar; Federalism and regionalism in India- Institutional Strategies &
Political Accommodation of Identity .
 Watts Ronald L.; Federalism, Federal, Political Systems and Federations .
 Jr Hills Roderick M.; The Political Economy of Cooperative Federalism: Why State
Autonomy Makes Sense and "Dual Sovereignty" Doesn't .
 Das Ayesha Co-operative Federalism and the Inter-state Council- how Article 263
may contribute significantly to India’s federal fabric .

30