CPL & SoG YG Law Federalism

MODELS OF FEDERALISM
What is a Federation?
- Federation is derived from a Latin word ‘Foedus’ which means ‘treaty’ or
‘agreement’. Thus, a ‘federation’ is forming of a new state (political system)
through a treaty/agreement.
- Units of a federation are known as States (US, India) and Provinces (Canada)
- Federation can be formed in two ways, one by way of integration and another by
way of disintegration.
I. Integration - when previously independent states agree to come together to
form a federation while still retaining certain degrees of autonomy. Ex. USA
II. Disintegration - when a previously unified, centralized state decentralizes
power and create a federation in order to accommodate regional differences
and prevent separatist movements. Ex. The Russian Federation
The notion of a federation—a union of states under a central government—dates back at least to
ancient Greece and was seen in different forms in various other historical contexts.

K.C. Wheare defined a federation as “a system in which the relationship between the national and
constituent governments, in law and in practice, is not subordinate but coordinate. Both orders of
government are to be governed by the constitution which is Supreme.”

Federation is a group of states/regions that come together to form one country.

Federalism is a system of government for the federation where power is divided between a
central government and individual states or regions. Each level of government has its own
responsibilities and powers, and they often have to work together to get things done.
Federalism consists of a set of interlocking principles of government. Some of which are:

 Popular sovereignty
 Written constitution distributing powers between two orders of government
 Separation of legislative, executive and judicial powers
 A system of checks and balances
 Judicial review

Federation v. Confederation: Main difference lies in the power dynamics. A federation is a

stronger, more tightly bound union with a robust central government, whereas a confederation is a
looser union where the member states retain a significant amount of power and independence.

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UNITED STATES OF AMERICA

Important Dates relating to Federalism in USA
November 15, 1777: The Articles of Confederation were adopted by the Continental
Congress. This document served as the United States' first constitution.
March 1, 1781: The Articles of Confederation were officially ratified after the last of
the 13 states (Maryland) gave its approval. This marked the official establishment of
the United States as a confederation.
May 25, 1787: The Constitutional Convention convenes in Philadelphia to discuss
revisions to the Articles of Confederation.
September 17, 1787: The New Constitution is signed by 39 out of 55 delegates to the
Convention. This day is now celebrated as Constitution Day in the United States.
\\\

The framers of the concept of federation in USA believed in such a political philosophy in
which the powers of government are limited and the liberty of the individual is basic.
The Basic idea was to leave much power in the hands of the states & the people so the
national government exercised a few powers and the residuary powers were left to the
states. Later on certain powers were transferred from the states to the new national
government.
It has been hotly contested in the supreme court whether there is any sphere that is
immune from federal pre-emption and regulation, IF the congress chooses to act.

Notable Case laws Relating to US Federal Structure:

McCulloch v. Maryland (1819): This case confirmed the supremacy of the federal
government in matters of economic legislation. The State of Maryland had attempted to
impede the operations of a branch of the Second Bank of the United States by imposing a
tax on all notes of banks not chartered in Maryland. The court held that the states cannot
tax the federal government, i.e. "the power to tax involves the power to destroy." The
decision also upheld the ‘doctrine of implied powers’, meaning that the Constitution grants
the federal government certain powers beyond those explicitly listed.

Gibbons v. Ogden (1824): This case clarified the commerce clause of the Constitution
and affirmed federal power over interstate commerce. The case involved a dispute over
navigation rights on the Hudson River, which flowed between New York and New Jersey.
The Supreme Court ruled that a New York law granting navigation privileges on the river to a
private company was invalid because it conflicted with a federal license allowing another
operator to navigate the same waters.

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United States v. Lopez (1995): This case set a limit on the power of Congress to use the
commerce clause to enact laws. The Court ruled that Congress had overstepped its
authority in creating gun-free school zones, as this was a matter for states and local
authorities to decide, not Congress. It was a notable decision as it marked a shift towards
limiting federal power and reinforcing states' rights.

National Federation of Independent Business v. Sebelius (2012): In this case, the

Supreme Court upheld most provisions of the Affordable Care Act (ACA, also known as
"Obamacare"). The Court ruled that the federal government could not compel states to
expand Medicaid by threatening to withhold federal funding for Medicaid programs. This
was a significant decision regarding the balance of power between federal and state
governments.

CANADA
 Canada is a federation which was formed by way of disintegration where a big unitary state
got converted into a federation by granting autonomy to the provinces to promote regional
interest.
 The Canadian federation comprises of 10 provinces (originally 4 provinces) and was formed
in 1867. The Canadians retained the British parliamentary tradition.
 They took federation to mean the distribution of power between the national and the
regional governments. The Canadian model differs fundamentally from the American model
in so far as it establishes a very strong Centre.
 Only certain enumerated powers were constitutionally distributed to the provinces but
today Canada is generally agreed to a Federation. However, the government of Canada can
still by law treat the provinces as subordinate entities and not as coordinate partners.

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COMPARATIVE ANALYSIS OF CANADA AND AMERICA

Comparison Point United States Canada
Constitution The U.S. Constitution divides powers Canada's Constitution Act of 1867
between the federal and state divides powers between federal and
governments, with any powers not provincial governments. The "peace,
explicitly granted to the federal order, and good government (POGG)"
government being reserved for the clause grants the federal government
states (10th Amendment) subject to broad powers.
the 'necessary and proper’ clause.

Division of Powers Powers are more evenly divided Federal government has a greater
between federal and state range of powers, and certain
governments. provincial laws can be disallowed by
the federal government (though this
is rare in practice).

Senate Senators represent each state Senators are appointed by the

equally, with two senators per state Governor General on the advice of the
regardless of population. This gives Prime Minister. Representation is
smaller states a disproportionate divided regionally, not based on
amount of power in the Senate. population, but it doesn't give smaller
provinces more power per se.

Judicial Review The Supreme Court plays an active While the Supreme Court of Canada
role in interpreting the Constitution can review constitutional matters, it
and can declare federal or state laws tends to be less activist and more
unconstitutional. deferential to Parliament than the
U.S. Supreme Court.

Subnational State governments have significant Provincial governments have powers

Governments powers in areas like education, in areas such as education and
health, and local matters. healthcare, but the federal
government has more potential to
intervene.

Intergovernmental Relations between the states and There is a more collaborative model
Relations the federal government can be of intergovernmental relations, with
competitive. numerous formal and informal
mechanisms for consultation and
negotiation.

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INDIA
Throughout the Constitution, emphasis is laid on the fact that India is a single united nation.
The term federation has nowhere been defined in the Constitution of India. India is
described as a Union of States constituted into sovereign, secular, socialist and democratic
republic. Article 1 also describes India as a Union of States.

According to Dr. B.R. Ambedkar, the phrase ‘Union of States’ has been preferred to
‘Federation of states’ to indicates two things:
1. The Indian federation is not the result of an agreement among the states like the
American federation.
2. The states have no right to secede from the federation. The federation is a union
because it is indestructible.

According to KC Wheare, in practice, the Constitution of India is Quasi-Federal

in nature not strictly federal.
According to D.D. Basu, the Constitution of India is Neither Purely Federal nor
Unitary but It Is a Combination of Both.
According to K Santhanam, there are two factors responsible for increasing the unitary
bias (tendency of centralization) of the constitution:
1. The dominance of the Centre in the financial sphere and the dependence of the
states upon the central grants,
2. The emergence of a powerful erstwhile planning commission which controlled the
developmental process in the states.
He observed that India has practically functioned as a Unitary State where the union and the
states have tried to function formally and legally as a federation.

Ivor Jennings has described it as a Federation with A Strong Centralising

Tendency.

COMPARISON of INDIA with USA and Canada

 The Indian federal system is based on the Canadian model and not on the ‘American model’.
 The Indian system resembles the Canadian federation-
1. In its formation (e.g., by way of disintegration).
2. In its preference to the term ‘Union’ (Canadian federation is also called a Union).
3. In its Centralizing tendency (vesting more power in the Centre vis-à-vis states).
 India is a quasi federation with a powerful national government (called “the Centre”) and
with the distribution of certain powers to the states. Being a quasi-federal polity, it contains
the characteristics of both a federal polity like United states of America and a unitary polity
like United Kingdom.

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FEDERAL FEATURES OF INDIAN CONSTITUTION.

Written and Rigid Constitution: The Indian constitution, the world's lengthiest,
initially comprised a Preamble, 395 Articles, and 8 schedules, now expanded to about
470 articles and 12 schedules. It outlines the structure, functions, and limitations of
the central and state governments. Thus, it avoids the misunderstandings and
disagreements between the two. The constitution is rigid (hard to change) to
maintain the division of powers and its supremacy. Amendments affecting the
federal structure or judicial organization require a special parliamentary majority and
approval from half the state legislatures.

Supremacy of the Constitution: The laws enacted by the Centre and the States
must confirm to the constitutional provisions, the organs of the government
(legislative, executive and judicial) at both the levels must operate within the
jurisdiction prescribed by the constitution, otherwise, they can be declared invalid by
the supreme court or the high courts through their power of judicial review.

Independent Judiciary: An independent judiciary led by the Supreme Court

protects the constitution's supremacy and settles disputes between the central and
state governments or among states. The constitution contains various measures like
security of tenure for the judges, fixed service conditions, and so on to make the
judiciary independent of the government.

Dual Polity: The Indian constitution establishes a dual polity with sovereign powers
divided between the union at the center and the states. The central government
handles national issues (like defence, foreign affairs), while state governments
manage regional concerns (like public order, agriculture). Both central and state
entities can legislate on subjects in the concurrent list, but the central law overrules
in conflicts. The center holds authority over residuary subjects not listed in the three
list.

Bicameralism: The bicameral legislature consists of the Rajya Sabha (representing

the states) and the Lok Sabha (representing the people). The Rajya Sabha, while less
powerful, maintains federal equilibrium by protecting state interests against undue
central interferences.

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UNITARY FEATURES OF INDIAN CONSTITUTION

Strong Centre: The division of powers is in favour of the Centre and highly
inequitable from the federal angle.
 Firstly, the union list contains more subjects than the state list.
 Secondly, the more important subjects have been included in the union list.
 Thirdly, the Centre has overriding authority over the concurrent list.
 Finally, the residuary powers have also been left with the Centre, while in the
USA, they are vested with the states, thus the constitution of India has made
the Centre very strong.
States Not Indestructible: Unlike in other federations, the states in India have no
right to territorial integrity. The parliament can by unilateral action change the area,
boundaries or name of any state. Moreover, it requires only a simple majority and
not a special majority. Hence, the Indian federation is an indestructible union of
destructible states. The American federation on the other hand is described as an
indestructible union of indestructible states.

Single Constitution: Usually in a federation, the states have the right to frame their
own constitution separate from that of the Centre. In India, on the contrary, no such
power is given to the states. The constitution of India embodies not only the
constitution of the Centre but also those of the states, both the Centre and the states
must operate within this single frame.

Flexibility Of the Constitution: The process of constitutional amendment is less rigid

than what is found in other federations. The bulk of the constitution can be amended
by the unilateral action of the parliament, either by simple majority or by special
majority. Further, the power to initiate an amendment to the constitution lies only
with the Centre. In US on the other hand, states can also propose an amendment to
the constitution.

No Equality of State Representation: The states are given representation in the Rajya
Sabha on the basis of population. Hence, the membership varies from 1 to 31. In US
on the other hand, the Principle of Equality of representation of states in the upper
house is fully recognized. Thus, the American senate has 100 members, two from
each state. This principle is regarded as a safeguard for smaller states.

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Emergency Provisions: The constitution stipulates three types of emergencies;

National, State and Financial. During an emergency, the central government becomes
all powerful and the states go into the total control of the Centre. It converts the
federal structure into a unitary one without a formal amendment of the constitution.
This kind of transformation is not found in any other federation.

Single Citizenship: In spite of a dual polity, the constitution of India, like that of
Canada, adopted the system of single citizenship, there is only Indian citizenship and
no separate state citizenship. All citizens irrespective of the state in which they are
born or reside enjoy the same rights all over the country. The other federal states like
US, Switzerland and Australia have dual citizenship, that is, national citizenship as
well as state citizenship.

Integrated Judiciary: The Indian constitution has established an integrated judicial

system with the supreme court at the top and the state high courts below it. This
single system of court enforces both the central laws as well as the state laws; In US
on the other hand, there is a double system of courts whereby the federal laws are
enforced by the federal judiciary and the state laws by the state judiciary.

All India Services: In US, the federal government and the state governments have
their separate public services. In India also the Centre and the states have their
separate public services but in addition, there are all India services such as IAS, IPS
and IFS which are common to both the Centre and the states. The members of these
services are recruited and trained by the Centre which also possess ultimate control
over them.

Parliament’s Authority Over State List: Even in the limited sphere of authority
allotted to them, the states do not have an exclusive control. The parliament is
empowered to legislate on any subject of the state list if Rajya Sabha passes a
resolution to that effect in the national interest, this means that the legislative
competence of the parliament can be extended without amending the constitution.
Notably, this can be done even where there is no emergency of any kind.

Veto Over State Bills: The governor is empowered to reserve certain types of bills
passed by the state legislature for the consideration of the president. The president
can withhold his assent to such bills not only in the first instance but also in the
second instance. Thus, the president enjoys absolute veto (and not suspensive veto)
over state bills. But in the US and Australia, the states are autonomous within their
fields and there is no provision for any such reservation.

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CONCLUSION
The Federalism in United States of America differs from that of India and Canada in the sense that
USA preferred federalism as an end in itself whereas India and Canada viewed it as an effective
means to distribute powers between the national and the regional entities.
The experiences of both USA and Canada attest to the relative unimportance of both constitutional
language and framers’ intent in determining results.

Kuldip Nair v Union of India (2006): It doesn’t really matter whether the Constitution is in
consonance with the textbook rules of federalism as long as it serves the purpose
Issue: There was a domicile requirement in Rajya Sabha elections which was removed by an
amendment in 2003 and then it was argued that the amendment violated federal spirit.
Held: SC said that a particular kind of federalism or a US type of model may not be part of
the basic structure of Indian Constitution. The Indian Federalism is unique in nature and is
tailored according to the specific needs of the country. Federalism is a basic feature of the
Constitution of India in which the Union of India is permanent and indestructible.

S.R. Bommai v Union of India (1994): The essence of federation is the existence of
distribution of power between its Coordinate Bodies (i.e. the Union and the States).

Sat Pal v State of Punjab (1969): The absence of the terms ‘federal’ or ‘federation’ and the
presence of unitary features such as residuary powers, single citizenship, integrated judiciary, etc.,
can help us conclude that the Constitution of India is more ‘Quasi Federal’ than Federal or Unitary.

The Chairman of Drafting Committee, Dr. Ambedkar had thus rightly said that,

“Our Constitution would be both unitary as well as federal according to the

requirements of time and circumstances”

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