‘India is an example of true federalism like the United States. Do you agree with this statement?’
Author: Khyati Goyal
Co-author: Chhavi Jain
College: O.P. Jindal Global University
ISSN: 2582-3655
ABSTRACT
This Article disagrees with the given statement ‘India is an example of true federalism like United States.’ The paper tries to answer the research question while critically analyzing the Concept of ‘Federalism’ and inaugurate a comparison of federal features in both countries. The researchers tried to establish that the point of True federalism in United State is not same as in the case of Indian Federalism. India being a Quasi federal and USA a model of true federalism is further examined with the view of Ivo D. Duchacek’s ten yardsticks. The primary aim of the article is to investigate more about the nature and non-federal features of India. The paper lightens up the effective case laws and constitutional articles to support the argument. The basic structure of the paper is built on the idea of Indian federalism being unique. It further premises how the federalism of India evolved and concluded as Quasi Federal.
INTRODUCTION
“Federalism is the main alternative to empire as a technique of
aggregating large areas under one government.”[1]
Federalism is a form of government to conduct political powers under the condition to serve equal liberty all over the Nation. The originality of the federal system which lies in that power is, at one and the same time, concentrated as well as divided.[2] 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.”[3] The constitutional diffusion of powers emphasizes to safeguard the interest of states as well as to provide more specific authority to central with respect to the administration and National issues. A Federal government forms connectivity among individuals and groups of people to indulge with their rights, to shelter the culture of each state while maintaining the prosperity and integrity of the parties. One of the natures of federalism is to promote the operations and functions efficiently; a feature of federalism also espouses the Written Constitution. The laws enacted either by the state or central can be invalidated by the judiciary power given to the Supreme court in order to maintain the Supremacy of the Constitution. Federal structure prompted governance unity, centralization and nationalism with multiplicity, decentralization and locality. In order to protect the allotment of powers to local and central units, the constitution must be rigid.[4] The federal system does not resist itself with the sole power but shares its power among its units. A country governing with all the features of federalism will be determined as the True Federal country.
On 17 September 1787, The United States of America became the first country to adopt Federalism, therefore it started being treated as the model of ‘Federalism’ concept. India being a vast sprawling country with aromas of divergent cultures also opted Federal system for the making of governance. After numerous debate, it was found that ‘India is described as ‘Union of States’ and its constitution as Quasi federal’.[5] Chief Justice B.K. Mukherjee observed that the Indian constitution has not recognized the federal principle in its absolute rigidity, but the functions of different branches of government sufficiently allocated.[6] Indian government system was contended with some features of Unitary which are non-federal while some features constitute Federalism. In the words of D.D Basu, “the constitution of India is neither purely federal nor unitary, but it is a combination of both.” However, the Supreme Court observed in the case of West Bengal vs. Union of India that “The Indian Union is not a true federation.” [7] As the Unitary features are present in India, the term “Quasi” is used and not the “true” Federalism. In our constitution, Article 3 states that, without the consent of any state, parliament has the power to alter the state boundaries. Under Article 352, 356 and 360 where Central government can prevail state and may dismiss the state government in accordance with an emergency. Therefore, the government is designed in such a way were country should behave like the Unitary System, in case of any emergency. The United States allows dual citizenship whereas Indian constitution restricts with uniform and single citizenship while only considering a single constitution. Moreover, there are certain more articles in our constitution, as Article 312 which permits Centre government to appoint all the offices, Article 217 where judges of High Court are appointed by President with the help of Centre government, Article 155 in which governor is appointed and there in no interruption of State legislature, same was considered in the case of Rameshwar Prasad V Union of India[8], where it was observed by Supreme Court that removing of State Governor by Central government is mala fide and arbitrary in nature which indicates a Unitary feature. True Federalism does not allow to prevail one government to another, as both the Centre and State government should be treated and powered equally. Dr B R Ambedkar said that “Indian Political System is both Unitary as well as federal according to the requirement of time and circumstances.” India being a Quasi-federal cannot be termed as True Federal country Like United States. In the case of Kuldip Nair V Union of India[9] Supreme Court said: “that a particular kind of federalism or a US type of model may not be the part of the basic structure of Indian Constitution.”[10] The federal system of India in comparison to the United States is further proved in the following arguments with the relevant authorities.
COMPARATIVE ANALYSIS OF FEDERALISM IN INDIA AND USA
There are roughly 25 federal countries in the world, which together represent 40 percent of the world’s population.[11] USA and India are the two most significant federal countries in the world which follow federalism in their political structure, the former is the world’s oldest democracy while the latter is the world’s largest democracy. By promulgating its constitution in 1789, the US became a Federal Republic State, while India was only formally founded as a Socialist, Sovereign, Secular, and Democratic Republic in the 1950s.[12] Thereby both countries had attained the dominion status where many smaller countries had joined to form a union with a central government called the Federal Government in the United States and the Central Government in India. The Federation does not operate in isolation but rather real politics, culture, ideology, and history determine the actual working of a federation, and so while on one hand there are many similarities between the federal structure of India and the United States, on the other hand, both federations differ in various aspects.[13] This research paper will try to highlight those key features of both India and the USA and also compares the federation models of both countries.
The vital features of US constitution are- it is a written constitution framed in 1787 which is considered as the supreme law of land; it is rigid which means for amending it, a special and difficult procedure has to be followed which consists of two steps- proposal of amendment and ratification of proposal therefore, it has been amended 27 times in 229 years; it has popular sovereignty means people rule i.e. they have delegated power to the government and the government will use that authority as per people’s will; it has bicameral legislature; legislative powers are divided in between federal and state governments in which former is the government of listed power while the latter holds the right over residuary powers; each government operates within its assigned spheres upon all persons and property in their territorial limits; states are autonomous bodies and centre can’t meddle up in their affairs and in case of any dispute, the federal law prevails[14]; the constitution provides for dual citizenship and the Supreme Court is vested with the power of judicial review as it did in Marbury v Madison case.
The founding father of the Indian Constitution, Dr B.R. Ambedkar used word ‘union’ instead of ‘federal’ in Article 1 (1) of the Constitution which states that “India, that is Bharat, shall be the union of states” and said in the constituent assembly that it has two definite advantages, viz. that Indian federation is not the result of an agreement by the units, and that the component units have no freedom to secede from it.[15] It has a strong centre to secure the nation because of the prevailing social, economic and political conditions. The federal features of India are- there are two sets of government namely, central and state government. The central government works for the whole of India while the state government look after states. Both governments area of activity differs and the seventh schedule of the constitution which contains three lists specifically divided powers between Centre and State; it has a written constitution which is considered as one of the longest constitutions in the world which has 395 Articles 22 parts and 12 schedules; the constitution is the supreme law of the land; it has a supreme judiciary which is regarded as the guardian of the constitution and bicameral legislation. The Indian Constitution has some unitary or non-federal features also. For instance, division of powers is not equal (the centre has given more powers than states), Constitution is not strictly rigid as it has been amended for more than 100 times in 69 years; single constitution and no separate constitution for states; centre’s control over states; Rajya Sabha doesn’t represent the equality of states; the proclamation of emergency; unified judiciary and single citizenship exist.[16]
The aforementioned features of federalism are founded based on conventional theories but Ivo D. Duchacek approached this principle of federalism by providing ten yardsticks in the form of ten questions which will help to determine the federal character of a nation. The ten yardsticks are Exclusive Control over Foreign Relations, Immunity against Secession, Independent Sphere of Central Authority, Amending the Federal Constitution, Indestructible Identity and Autonomy, Residual and Significant Powers, Bicameralism and Equal Representation, Two Sets of Independent Courts, The Supreme Court, and Clear Division of Power.[17] The comparative analysis regarding the nature of the US and Indian federalism will be based on the above-mentioned yardsticks.
The first yardstick given by Ivo D. Duchacek for detecting the federal nature of a state is “Has the Central Authority exclusive control over diplomacy and defence as befits a nation-state in its relations with other nation-states?” Generally, in a federation, the ultimate control over foreign policy and the conduct of peaceful or violent international relations lies with the Central Government. In the US, Article 1 Section 10 of their Constitution prescribes that “No state shall enter into any Treaty, Alliance or Confederation…….No State shall, without the consent of Congress, keep Troops, or Ships of War in time of Peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless invaded or in such imminent danger as will not admit of delay.”[18] In India, such power of exclusive control of the Central government over foreign policy is given under Article 246 read with Schedule VII various entries in the list I, entry 1, 2, 4, 10, 11, 13, 14 and 15. Besides these provisions, there are some other entries in List I which support centre in these matters, Articles 53(2), 352,353 and 355 further strengthen this power of central authority. Thus, it can be said that these powers are much detailed in the Indian Constitution and hence it asserts the first question more positively than US Constitution.
The second question stated by Ivo D. Duchacek is that “Is the Federal Union Constitutionally immune against dissolution by secession?” In the US Constitution, there is no direct interdiction of secession but we can argue on Preamble’s first sentence which says “a more perfect union” and it committed the thirteen states to be a “perpetual union”. But after the verdict of the Supreme Court in Texas v White, a well-settled law came that “The US is an indestructible union of indestructible states”.[19] In India, the secession of states is not possible as Article (1) (1) of the Constitution says that “India, that is Bharat, shall be a union of states”. Further, the intention of B.R. Ambedkar in using the word ‘union’ instead of ‘federal’ is to imply that units or states have no right to secede from it.
The third question raised by him is that “Whether a union directly tax people and can reach them and provide welfare without the state’s permission?” In a federal system, powers are so divided between central and regional governments that they coordinate and operate within their assigned spheres. If the central government is made to be dependent on its component units, then such an arrangement would be an alliance or confederation but can’t be federal. Federal constitutions make the federal government independent of the constituent units by granting it the right to levy direct taxes and enforce the federal laws due to the issue of financial resources.[20] In the US, Article 1 Section 8 gave Congress the powers to levy and collect taxes. But until 1913, the direct taxes were to be shared among several states according to the population. In 1913, the sixteenth amendment gave Congress the right to impose taxes “without apportionment among the several States, and without regard to any census or enumeration.” Also, in a famous case, McCulloch v Maryland, it was held that “a government entrusted with such ample powers [to lay and collect taxes, regulate commerce, conduct war, etc.], on the due execution of which the happiness and prosperity of the nation so vitally depend, must also be entrusted with ample means for their execution. It can never be their interest, and cannot be presumed to have been their intention, to clog and embarrass its execution, by withholding the most appropriate means”.[21]In India, Article 246(1) read with Schedule 7, Entry 82 to 92 provides the centre with the direct authority to collect taxes. The entire gamut of the financial relations between the union and the state government is provided in the Constitution itself. The tax heads are also mentioned from Article 268 to 281 which talks about tax sharing between the two governments. Thus, the Central authority is very much independent of the component units with regards to the financial relations.
The fourth yardstick which is most reliable for identifying the true nature of federalism is “Who has the ultimate control over amendments to federal Constitution?” Under Article 5 of the US Constitution, amendments can be achieved by Congress by asking 2/3rd of both chambers. The application of the legislature of 2/3rd of several states can also recommend it. It requires the ratification of at least 3/4th of the states. The last sentence of Article 5 also specifies that “no amendment shall deprive any state same suffrage in the senate”.[22] In India, the procedure for amendments has been provided under Article 4, Schedule VI and principally under Article 368 of the Constitution. The power to make amendments is vested with the union in all cases. However, Article 368(2) identifies some types of Amendments, which needs ratification by at least half of the states. Thus, it can be concluded that amendments that affect the federal structure of the nation require ratification by at least half of the states.
The fifth question raised by Ivo D. Duchacek is “Are the component units immune to the elimination of their identity [antedating or postdating the Union] and authority?” In the US, as per article 4, section 3 read with the case of Texas v. White, the states are indestructible, their boundaries can’t be altered and not even their names. In India, the position is different. Article 3 of the Constitution authorizes the Parliament to form a new state by separating any territory from a state, or by uniting two or more states or any part of them. It can also increase or diminish the territory of any state or alter its name. Although Parliament has the power of eliminating any state, it hasn’t used this power except in Kutch Award Tribunal case.
The sixth yardstick given by him is “Have the component units retained all the powers that the constitution has not given to the central authority?” In the US, Article 1, Section 8 of the Constitution provides 18 subject matters for the centre to legislate upon. The residuary powers are in the hands of the states. While in India, there are three exhaustive lists in schedule VII (union, state, concurrent) which divides the power between state and the centre. There never arose an instance of residuary power in India but if so, then by Article 248, the Centre has the authority over it. Thus, this yardstick reflects some unitary features present in India as Union can make laws in a case related to State matter also.
The seventh question raised is “Is the Collective Sharing in federal rulemaking adequately secured by equal representation of unequal units in a bicameral system?” In the US, by Connecticut compromise, Americans proposed a proportional representation of unequal states in the lower house and equal representation of unequal states (two senators per state) in the upper house.[23] The US federalism is true in matters of legislation as both houses are equal and no new law can be enacted unless agreed by both houses. In India, there is an unequal representation of unequal states in the Council of States in the Parliament. The allocation of seats in the Rajya Sabha is provided in Schedule IV of the Constitution.
The eighth yardstick to identify federal nature of a state is “Are there two independent sets of Courts, one interpreting and adjudicating Federal Laws and the other State Laws?” In the US, there are two independent courts i.e. federal court and state courts. The Supreme Court has jurisdiction over the entire country but only in matters related to federal laws. Each state has its own Constitution and its individual Supreme Court to interpret the Constitution. In India, there is one hierarchy of courts in which the Supreme Court is the apex body and High Courts of individual states are at a lower level. Both courts can interpret and adjudicate federal as well as state laws.
The ninth question given by him is “Is there a judicial authority in the central authority but Standing above that Central Authority and the Components Units to determine their respective rights?” In a federal state, there is the need for an impartial agency that can interpret the right meaning of the Constitution. In the US, the Supreme Court stands above the Central Authority and the States. There is a power of judicial review vested in the Supreme Court which has original jurisdiction to try center-state dispute. In McCulloch v Maryland, this concept of judicial review was used. In India, as per Article 131 of the Constitution, the Supreme Court has original jurisdiction in “any intra-federal disputes between the Government of India and one or more States, or between two or more states.” The power of judicial review is also mentioned under Article 13 (2) of the Constitution read with 14, 32 and 226. Thus, India has a judicial authority that stands above the central authority and component units.
The final yardstick to determine the federal nature of a nation given by Ivo D. Duchacek is “Is the territorial division of authority is clear and unambiguous?” In the US, Article 1, Section 8 of the Constitution provided 18 subject matters on which the Centre can legislate and the residuary powers are with the states. In India, there are three lists in Schedule VII which demarcates the power between the union and the State to avoid any ambiguity.
Thus, it can be inferred from the above-mentioned ten yardsticks that India doesn’t strictly follow them but while considering the practical features, India can be coined as a federal country. And the USA follows major of the yardsticks and hence can be considered as a true federal country. As mentioned above that the federation does not operate in isolation but rather real politics, culture, ideology, and history determine the actual working of a federation. History is one of the major components which determines what kind of federal structure your nation would pursue. Federalism doesn’t consist of a fixed set of principles that can apply to different historical situations. Rather it evolves differently in different situations. And so, the comparative study of the two countries would be considered incomplete without analyzing the historical perspective.
The history of both US and India is different. The federalism in the US is the evolving relationship between the state government and central government in which separate states first formed a Confederation in 1781 and then federation in 1789. America has declared its independence on 4 July, 1776 after which the Congress had appointed a committee to form the confederation among several states. In November 1777, the Articles of Confederation was adopted by the Congress which constituted the first Constitution of the US. In the coming years, tensions rose between federal and state government in dealing with various issues and climax was seen in 1786 when all the states were on the verge of civil war and Articles of Confederation failed. So, a conference was held in 1787 at Philadelphia to review the whole political structure in which it was held that the US is a sovereign state of whose boundaries can’t be touched by the central government. The powers of both governments are divided to avoid any more complications in their working. Thus, these 13 sovereign units decided to form a federation. In India, the partition of India and Pakistan was accepted by both Congress and the League in 1947. The Indian Independence Act was then introduced by the Parliament which provides more than 500 princely states which have the option to go either with India or Pakistan or declare themselves independent. Then 14 states and 6 union territories were created by the States Reorganization Act, 1956. Due to the bad experience of provincial autonomy in India (which made Britishers occupy our territory) urged our founding members to make a strong center to hold together all different states. Thus, we can say that there are two different historical backgrounds, the US became coming together federation and India became a holding together federation.[24]
The federalism prevails in the US is very close to true federalism but there is always a debate about which form of federalism is practised in India. Ivory Jennings described India’s federalism as ‘federation with a centralizing tendency’, ‘quasi-federal’ by KC Wheare, ‘bargaining federalism’ by Morris Jones and ‘co-operative federalism’ by Granville Austin. In State of Rajasthan v UOI, former Chief Justice Beg called the Constitution of India as ‘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 on the unitary plane, according to the needs of the situation and circumstances of a case…”[25] Similarly in S.R. Bommai v Union of India, “pragmatic federalism” was used. The judges delivered that “….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 powers of State and Central Governments, is overlaid by strong unitary features…” In-State of Haryana v State of Punjab, the term ‘semi-federal’[26] was used while in Shamsher Singh v State of Punjab, the constitution was called ‘more unitary than federal’[27]. In-State of Karnataka v Union of India, Justice Untwalia said “Strictly speaking, our Constitution is not of a federal character were separate, independent and sovereign State could be said to have joined to form a nation as in the United States of America or as may be the position in some other countries of the world. It is because of that reason that it has been characterized as quasi-federal in nature”.[28] Thus, it is clear that India is not a true federation like the US because it consists of some unitary or non-federal features also.
CONCLUSION
A country like India which shares a huge mass land with linguistic and diverse culture has remained united even after the decades of Independence. The country is a pure example of Unity with Diversity. Though the constitution of India has survived numerous debates and has continuously criticized for its Federal system, the country has evolved federalism in different situations to maintain integrity. And the form of federalism enshrined in the Indian Constitution has worked fabulously for India. The federal system of India and the United States widely differs from each other, they both had a different historical background and had faced different challenges, in spite that both countries have successfully secured their nation’s Constitution. In 1977, BHAGWATI, J., in Union of India v. Sankalchand, described our Constitution as a ‘federal or quasi-federal’ Constitution, [29] and not true federalism. Also, as there was no agreement between the states of India which also implies; a non-true federal form of government and changes the idea of sovereignty.
It is evidently concluded that India has balanced ‘Federal’ and ‘Unitary’ features together for the better effectiveness of governance. As proved above, the country cannot be held as a true federal like United States. This has lent support to the contention that the Indian Constitution is federal in form but unitary in spirit.[30] It is right to conclude that; to ameliorate and preserve the system, India has adopted and titled as Quasi Federal. And India is NOT an example of true federalism like the United States.
[1] Olga Shvetsova , Designing Federalism: A Theory Of Self- Sustainable Federal Institutions, CAMBRIDGE UNIVERSITY PRESS (Nov. 3, 2004, 10 a.m.), https://assets.cambridge.org/97805210/16483/frontmatter/9780521016483_frontmatter.pdf.
[2] Dhoot R, Comparative Analysis of Indian And American Federalism, 4 IJARIIT, 490-495 (2018).
[3] K.C. WHEARE, FEDERAL GOVERNMENT (2nd ed., 1947).
[4] Livingston W, A Note on The Nature Of Federalism, 67 PSQ, (1952).
[5] Ramachandran S, Centralization In Federal India, ACADEMIA (Nov. 10, 2020, 1 p.m.), https://www.academia.edu/2432418/Centralization_in_Federal_India.
[6] Sonia, Indian Federalism: A Study With Special Reference To S. R. Bommai V. Union Of India, 16 JASRAE 384, (2019), http://www.ignited.in/I/a/211193.
[7] AIR 1963 SC 1241.
[8] Writ Petition (civil) 257 of 2005.
[9] AIR 2006 SC 3127.
[10] Shreyaa, Quasi-Federal Nature Of Indian Constitution, LEGAL SERVICE INDIA (Nov. 16, 2020, 5 p.m.), http://www.legalservicesindia.com/article/2245/Quasi-Federal-Nature-of-Indian-Constitution.html.
[11] Federal Countries, FORUM OF FEDERATIONS (Nov. 8, 2020, 6:00 p.m.), http://www.forumfed.org/countries/#:~:text=There%20are%20roughly%2025%20federal,cent%20of%20the%20world’s%20population.
[12] Diganth Sehgal, The Difference Between The US And Indian Federalism, IPLEADERS (Nov. 7, 2020, 5 p.m.), <https://blog.ipleaders.in/difference-us-indian-federalism-2/> accessed 7 November 2020.
[13] 6 D.D BASU, COMPARATIVE FEDERALISM (2nd ed., 2008).
[14] United States of America, FORUM OF FEDERATIONS (Nov. 8, 2020, 2 p.m.), <http://www.forumfed.org/countries/united-states-of-america/>.
[15] Raghav Dhoot, Comparative Analysis of Advance Research, Ideas And Innovations In Technology, INT. J. ADV. (2018).
[16] Introduction to the nature of Indian Federalism: Division of powers between the Union and the States, KKHSOU (Nov. 12, 2020, 1 p.m.), <http://kkhsou.in/main/polscience/indian_federalism.html>.
[17] IVO B. DUCHACEK, COMPARATIVE FEDERALISM, (Holt Rinehart and Winston Inc, New York, 1970).
[18] U.S. CONST., art I, pt. X.
[19] Texas v. White, 74 U.S. 700 (1869).
[20] Yogesh Pratap Singh, Comparative Federalism: Testing Indian Constitution on the yardsticks of Ivo D. Duchacek, 1 RLR, (2020), <https://journal.rostrumlegal.com/comparative-federalism-testing-indian-constitution-on-the-yardstics-of-ivo-d-duchacek/>.
[21] 17 U.S. 316 (1819).
[22] U.S. CONST., art. V, pt. IX.
[23] Comparing The Model Of Federalism In India And U.S.A, LAW TIMES JOURNAL (Nov. 13, 2020, 12 p.m.), <http://lawtimesjournal.in/comparing-the-model-of-federalism-in-india-and-u-s-a/>.
[24] Benjamin N. Schoenfeld, Federalism in India, 20 THE INDIAN JOURNAL OF POLITICAL SCIENCE, 52-62 (1959).
[25] (1977) 3 SCC 592 (India).
[26] 2004 Supp (2) SCR 849.
[27] AIR 1974 S.C. 2192.
[28] AIR 1978 S.C. 68.
[29] Siddharth Dalabehera, Federalism In India- A Judicial Interpretation, ACADEMIKE (Nov. 16, 2020, 11 a.m.) https://www.lawctopus.com/academike/federalism-india-judicial-interpretation/.
[30] Negi Mohita, 16 Unitary Features Of The Indian Constitution, YOUR ARTICLE LIBRARY (Nov. 13, 2020, 11 a.m.), https://www.yourarticlelibrary.com/indian-constitution/16-unitary-features-of-the-indian-constitution/24926.