made sense in the USA

and provided a setting that was

useful to people from another large
country with
dramatic differences within its
population and the need for
economic develop-
ment. As our conversations
developed, I began to understand
both the
made sense in the USA
and provided a setting that was
useful to people from another large
country with
dramatic differences within its
population and the need for
economic develop-
ment. As our conversations
developed, I began to understand
both the
1
 Dr. Ram Manohar Lohia National Law University
Lucknow,U.P.

SUBJECT : COMPARATIVE CONSTITUTIONAL LAW

TITLE OF PROJECT:
COMPARATIVE FEDERALISM BETWEEN INDIA AND USA
(Final Draft)

Submitted to: Submitted By:

Prof (Dr.) C. M. Jariwala Lokesh Nigam
Professor, Dean (Academics) 200102007 ( 1st semester)

2
 ACKNOWLEDGEMENT

Any accomplishment requires effort of many people and this work is no different. I take this
opportunity to thank Prof (Dr.) C. M. Jariwala & Dr. Shashank Shekhar for giving me such a
wonderful topic for research and providing me valuable training and guidance at the various
stages of my project.

I will also remain highly indebted to the librarian for providing the requisite research
material.

Lastly I am thankful to all my colleagues who have given time to help me during the
completion of the project.

-Lokesh Nigam

3
 TABLE OF CONTENT

1. INTRODUCTION
2. FEDERALISM IN INDIAN CONTEXT
3. JUDICIAL PRONOUNCEMENT OF FEDERALISM
4. COMPARISON BETWEEN INDIA AND USA
5. CONCLUSION
6. BIBLIOGRAPHY

4
 INTRODUCTION

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

Federalism is a political system which creates in a society broadly two levels of Government
with assigned powers and functions arising from a variety of social, economic, cultural, and
political factors.2 It is one element of power dispersion among others in the creation of
political order which is built in consonance with the principles of constitutional government.
The principles of federalism are grounded on and formed with the combination of self-rule
and shared rule. In the broadest sense, federalism involves the linking of individuals, groups,
and politics in the lasting but limited union in such a way as to provide for the energetic
pursuit of common ends while maintaining the respective integrity of all parties. Federalism
as a political principle deals with the constitutional diffusion of power so that the constituting
units in a federal arrangement share in the processes of common policy making and
administration by right, while the activities of the common government are conducted in such
a way as to maintain their respective integrity. 3 Federalism constitutes a complex
governmental mechanism for the governance of a country. It binds into one political union
several autonomous, distinct, separate and disparate entities or administrative units. It seeks
to draw a balance between the forces working in favour of the concentration of power at a
central point and the forces which favour a dispersal of the power in a number of units.
Federalism thus seeks to reconcile unity with multiplicity, centralisation with decentralisation
and nationalism with localism. The originality of the federal system which lies in that power
is, at one and the same time, concentrated as well as divided. There is centralisation of
administration and legislation in certain areas along with decentralisation in other areas.4 The
essential features of federalism are dual government, distribution of powers, and supremacy
of the constitution, the authority of courts, written Constitution, decentralization, and a real
division of power, though the aforementioned principles are not exhaustive, they do
encompass major elements of federalism.5 A federal constitution establishes a dual polity,
comprising two levels of government—a central government having jurisdiction over the
entire country in some areas, and state governments, each of which exercises jurisdiction
1
K.C. Wheare, Federal Government, 4th ed. (London: Oxford University Press, 1963) at 11.
2
S. A. Paleker, FEDERALISM : A CONCEPTUAL ANALYSIS, The Indian Journal of Political Science, Vol.
67, No. 2
3
Daniel J. Elazar, Federalism Theory and Application, HSRC Press
4
M.P. Jain, Indian Federalism: A Background Paper, (2015)
5
Daniel J. Elazar, Exploring Federalism, University of Alabama Press

5
within defined regional boundaries. A citizen in a federal country is subject to the decrees of
two governments. The totality of governmental powers and functions are divided between the
Centre and the states. Each level of government thus functions within its assigned field. The
several governments do not, however, function in watertight compartments.

INDIAN CONTEXT
Looking at the Indian context, there are two levels of government: The central government
with sole authority to coin money, raise an army and declare war, while an intermediate level
of government i.e. states or provinces who have the sole authority to regulate education,
criminal or civil law etc. So does the Indian Constitution represent Federalism or not? The
First Article6 of our Constitution reads,“India, that is Bharat, shall be a Union of States.” Dr.
B.R. Ambedkar, the architect of the Indian Constitution, said that this union was a federation
and called it a flexible federation, so as not to make it as rigid as the American Federation.
The reason why federalism as a constitutional principle was articulated differently was
because of the historical context in which our constitution was made, as the thought of a more
potent federalism would weaken the feelings of national unity in the country. The constitution
of 1950 was to be implemented throughout the length and breadth of the country with myriad
of religions, races, languages and other diversities in our extremely heterogeneous society. It
was argued that Federalism ‘is not a definite concept; it has not got any stable meaning. It is a
concept, the definition of which has been changing from time to time’ 7 A parliamentary
system with federal features was finally adopted on 26 th January, 1950 with no formal
agreement by the states to join in ‘federation of states’, and thus Indian Union has been held
as ‘quasi federal’ or a ‘co – operative federation’. Dr. B.R. Ambedkar emphasized that India
will be a Union of States and not a Federation. The states would have no right to secede. He
also said: “The Federation is a Union because it is indestructible. Though the country and the
people may be divided into different States for convenience of administration the country is
one integral whole, its people a single people living under a single imperium derived from a
single source.”8

6
Constitution of India (1950)
7
C.A.D VI, 11, 950 vide T.T Krishnamachari
8
Press Information Bureau, Government of India

6
There are five essentials necessary to be called as federal and these are:

1. The Constitution has to be written.

2. It has to be rigid.
3. It must be the supreme rule of the land;
4. The separation or transfer of powers between the Union or the federal government
and the different States or provinces may take place.
5. An autonomous and impartial judiciary must be formed to interpret the
Constitution and the Rules.

FEDERALISM IN THE US

The USA is a federal government. Article I lists the competences of the national government
and has been called ‘few and established’ by James Madison. Few, maybe: Section 8 of
Article I has 18 clauses, although some are subdivided. And, to some degree, defined: the
provision that gives Congress authority to “create posts and postal roads” is not well
understood. Other laws were not so well known as obviously; since 1789 it has been
contested almost continuously for the importance of the clause granting the Congress power
“to control trade between the various States.” The powers that the Constitution does not
delegate to the United States are reserved for the States or the people. Upholding the federal
minimum wage law, Justice Harlan Fiske Stone noted that, literally, this provision ‘states but
a truism that all is constrained and surrendered.’ Madison makes a useful statement: ‘Powers
reserved for the various States shall cover all the objects which, in the course of the ordinary
business, concern people’s lives, freedoms and property, and internal peace, improvements,
and prosperity.

The Constitution of the United States says nothing about the governments of the states that
have control. State governments reflect the composition of the national government: an
elected chief executive, two legislative houses, and the court. In addition to the basic proposal
that state governments have plenary power — that is, may make legislation on any subject —
while national governments only have specified powers, state governments structurally vary
from domestic governments in several respects. Each state has a budget of its own. According

7
to the US constitution, the National Government does not need to be fiscal in check and has
seldom done so in recent years.

In some decisions of the Supreme Court in the 1990s, observers proclaimed the beginning of
the federalist movement. The Court found certain statutes unconstitutional, as they had for
the first time since 1936 violated federal values. And at this point, the revolt looks more like
a group of pitchforks than a serious attempt to overthrow an enlargement of the national
power since the new deal. The key avenues of the national government power centralization
have been defined through the use of legislative authority in intergovernmental trade
regulations. Congress, inevitably, has other forces and one, in particular, becomes more
essential as the 20th century continues. Congress has the authority to enact and levy taxes to
maintain America’s popular security to welfare.

The growth of the national government and in particular the implementation of the sixteenth
amendment, in which Congress approved the collection of income taxes (1913), gave the tax
authorities a stronger use. The key consequences for the separation between States and the
national government of successful governance were conditional expenditure programs. Given
domestic fiscal capital, dependent spending power has almost become as essential as the trade
clause as a mechanism for centralizing governing authority. The Court has shown little
interest in significant limits on dependent spending power. In the case of Texas V. White,
Chief Justice Salmon held that the United States is a Federation of indestructible States. The
union of states has never been a strictly artificial and arbitrary arrangement. It started among
the colonies and grew up with shared roots, mutual understanding, common interests, and
geographical relationships. In the case of Chisholm vs. Georgia, the first major constitutional
ruling of the U.S. Supreme Court was made in 1793. It’s about state sovereignty. Sovereign
immunity has been a central feature of sovereignty in the Anglo-American tradition. As
already stated in Article III of the Constitution, federal courts have authority over disputes
between a State and citizens of another State.

8
 JUDICIAL PRONOUNCEMENT

Over course of time, various judicial pronouncements have defined and interpreted the term
‘Federalism’ in different light.

 Ever since the decision in West Bengal v. Union of India,9 it has been the doctrine of our
Supreme Court that the unitary features in our Constitution are so many that the Federal
features almost disappear.
 In Rajasthan v. Union of India10 C.J. Beg said: “In a sense, therefore, the Indian Union
is federal. But, the extent of federalism in it is largely watered down by the needs of
progress and development of a country which has to be nationally integrated, politically
and economically coordinated, and socially, intellectually, and spiritually uplifted.”
 Going by a constitutional provision, Rajya Sabha is vested with a contingency-based
power over state legislatures under Article 249,11 which contributes to the ‘Quasi-federal’
nature to the government of the Indian union. Under Article 249(1), if the Rajya Sabha
declares by a resolution, supported by not less than two-thirds of its members present and
voting, that it is necessary or expedient in national interest that Parliament should make
laws with respect to any of the matters enumerated in the State list. Article 251 12 when
read with Article 249 provides that in case of inconsistency between a law made by
parliament under Article 249 and a law made by a State legislature, the Union law will
prevail to the extent of such inconsistency or ‘repugnancy’. In effect this provision
permits the Rajya Sabha to encroach upon the specified legislative competence of a state
legislature by declaring a matter to be of national importance. Though it may have been
incorporated as a safeguard in the original constitutional scheme, this power allows the
Union government to interfere with the functioning of a State government, which is most
often prompted by the existence of opposing party-affiliations at the Central and state
level. The nature of Federalism in Indian Constitution is no longer Res Integra. The
authority to Parliament to legislate in a field covered by the State under Article 252 13 only

9
1 SCR 371 (1964)
10
(1978) 1 S.C.R. 1
11
Supra note 6
12
Supra note 6
13
Supra note 6

9
 with the consent of two or more States, with provision for adoption of such legislation by
any other State; competence of Parliament to legislate in matters pertaining to the State
List, only for a limited period, under Article 249 “in the national interest” and under
Article 250 during “emergency”; vesting the President with the power under Article
258(1)14 to entrust a State Government, with consent of the Governor, functions in relation
to matters to which executive power of the Union extends, notwithstanding anything
contained in the Constitution. This shows its bias towards Unitary Power. In the case
of State of Karnataka v. Union of India & Anr.,15 Justice Untwalia, observed as
follows: “Strictly speaking, our Constitution is not of a federal character where 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 sometimes it has been characterized as quasi-federal in
nature”.
 In S.R. Bommai & Ors. v. Union of India & Ors.,16 a Constitution Bench comprising 9
Judges of this Court considered the nature of federalism under the Constitution of India.
Justice A.M. Ahmadi, in Paragraph 23 of his Judgment observed as under: ” the
significant absence of the expressions like ‘federal’ or ‘federation’ in the constitutional
vocabulary, Parliament’s powers under Articles 2 and 3 elaborated earlier, the
extraordinary powers conferred to meet emergency situations, the residuary powers
conferred by Article 248 read with Entry 97 in List I of the VII Schedule on the Union,
the power to amend the Constitution, the power to issue directions to States, the concept
of a single citizenship, the setup of an integrated judiciary, etc., etc., have led
constitutional experts to doubt the appropriateness of the appellation ‘federal’ to the
Indian Constitution.
 In the United States, the sovereign States enjoy their own separate existence which cannot
be impaired; indestructible States having constituted an indestructible Union. In India, on
the contrary, Parliament can by law form a new State, alter the size of an existing State,
alter the name of an existing State, etc. and even curtail the power, both executive and
legislative, by amending the Constitution. That is why the Constitution of India is
differently described, more appropriately as ‘quasi- federal’ because it is a mixture of the
federal and unitary elements, leaning more towards the latter but then what is there in a

14
Supra note 5
15
1978 (2) SCR 1
16
AIR 1994 SC 1918

10
 name, what is important to bear in mind is the thrust and implications of the various
provisions of the Constitution bearing on the controversy in regard to scope and ambit of
the Presidential power under Article 356 and related provisions.”17

COMPARISON OF FEDERALISM BETWEEN INDIA AND USA

To decipher this issue, we can draw a parallel to our constitution by comparing it with the
yardsticks of Federalism as provided by Ivo D. Duchacek 18 and comparing it with the
Federalism in United States of America.

1. Has the Central Authority exclusive control over diplomacy and defence as befits
a nation-state in its relations with other nation-states?

U.S.A.: The United States Constitution, for instance, prescribes under Article 1, Section 10,
Clause 3 of the U.S Constitution “No state shall enter into any Treaty, Alliance or
Confederation, 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 actually invaded or in such imminent danger as will not admit of
delay.” So that the ultimate control of defence and diplomacy is with Central Government.

INDIA: Indian Constitution in its seventh schedule includes entries related to diplomacy and
defence, war and peace, treatise, the United Nations, pilgrimages outside India, piracies and
crimes committed on the high seas or in the air and offences against international law in the
Union list, which gives power to the federal government. 19 List 1 of Schedule VII gives
powers to the union government that are exclusive to the union and states cannot interfere
with exercise of these powers. Apart from this, Article 53(2) vests the President with the
Supreme Command of the Defence Forces of the Union. Article 352, 353 and 355 also speak
about the Union’s power during the times of national emergency. Article 51, which speaks
about the promotion of international peace and security, is also provided under the Directive
Principle of State Policy. The existence of these powers under the Indian Constitution is more
elaborate than in the American Constitution. Thus the Federalism of Indian Constitution is
more positive than the American Constitution.

2. Is Federal Union constitutionally immune against dissolution by secession?

17
Kuldip Nayar v.Union Of India & Ors (AIR 2006 SC 3127)
18
Ivo D. Duchacek was Professor Emeritus of Political Science, City University of New York.
19
See Article 245 of the Indian Constitution

11
U.S.A: Article 4, Section 3[20] of the U.S. Constitution clearly says that no new states shall
be formed or erected within the jurisdiction of any other state without the consent of the
legislatures of the states concerned as well as of the Congress. In addition, it also says ‘The
Congress shall have power to dispose of and make all needful rules and regulations
respecting the territory or other property belonging to the United States; and nothing in this
Constitution shall be so construed as to prejudice any claims of the United States, or of any
particular state’

Further banking on Texas v. White20, it was concluded that that constitutional limitation is
necessary to prevent concentration of power on either National or State level. Chief Justice
Salmon P. Chase commented that the federal Constitution “in all its provisions looks to an
indestructible Union, composed of indestructible States.” Thus, it may be concluded that no
state may secede from the union from the U.S. Constitution.

INDIA: The constitution of India declares that India, that is Bharat, shall be a Union of
States.21It empowers Parliament to admit into the Union, or establish, new States on such
terms and conditions as it thinks fit.22 Further Parliament can by law form a new State by
separation of territory from any State or by uniting two or more States or parts of States or by
uniting any territory to a part of any State; increasing the area of any State; diminishing the
area of any State; altering the boundaries of any State; or altering the name of any State. 23On
a conjoint reading of these Articles, it becomes clear that Parliament has the right to form
new States, alter the areas of existing States, or the name of any existing State. Thus the
Constitution permits changes in the territorial limits of the States and does not guarantee their
territorial integrity. Even names can be changed. Under Article 2 it is left to the Parliament to
determine the terms and conditions on which it may admit any area into the Union or
establish new States. In doing so, it has not to seek the concurrence of the State whose area,
boundary or name is likely to be affected by the proposal. All that the proviso to Article 3
requires is that in such cases the President shall refer the Bill to the legislatures of the
concerned States likely to be affected ‘to express their views’. Once the views of the States
are known, it is left to Parliament to decide ‘on the proposed changes. The Parliament can,
therefore, without the concurrence of the concerned State or States change the boundaries of

20
74 U.S. 700 (1869)
21
See Article 1 of the Indian Constitution
22
See Article 2 of the Indian Constitution
23
See Article 3 of the Indian Constitution

12
the State or increase or diminish its area or change its name. These provisions show that in
the matter of Constitution of States, Parliament is paramount.

3. Can union directly tax people without state’s permission?

U.S.A: The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises,
to pay the Debts and provide for the common Defence and general Welfare of the United
States.24 In 1913, the Sixteenth Amendment gave the Congress the right to impose income
taxes “without apportionment among the several States, and without regard to any census or
enumeration.”

India: In India, the Union Government is independent of the constituent units and can levy
direct taxes and enforce federal laws. The tax heads or bases have been specifically
mentioned in the Constitution itself, and divided between the Union and the States. Along
with the tax bases mentioned in Schedule VII, Article 268 to 281 also speak about the tax
sharing between them. Further, the Union property is exempted from the state taxes 25 and
vice versa.26 Thus, the Central authority is very much independent of the individual approval
and resources of the component units with regard to the financial as well as other resources.

4. Who has the ultimate control over amendments to the federal Constitution?

U.S.A: Under Article 5 of the U.S. Constitution,

To propose amendments:

a) By Congress: 2/3rd of both the houses

b) By application of legislature: 2/3rd of several states

c) For ratification: 3/4th of several states

Exception:
24
Article 1, Section 8 of the U.S. Constitution.
25
Article 285 of the Indian Constitution.
26
Article 289(1) of the Indian Constitution.

13
1. No amendment shall affect the first and fourth clause in ninth section of the first article;

2. No state shall be deprived of its equal suffrage in the Senate

INDIA: Under the Indian Constitution the power and procedure for Amendments have been
provided under Article 4, Schedule VI and principally under Article 368 of the Constitution.
The power to initiate the amendments is vested with the union in all the cases. There is no
need for the ratification by the states for all amendments. However, Article 368(2) identifies
certain types of Amendments, which essentially need the ratification by at least half of the
states. The Amendments, which need such ratification by at least half of the states, are
provided under Article 368 (2) (a) to (e). Thus, it is clear that when Amendments are likely to
be affecting the federal structure to some extent, ratification by not less than half of the States
is necessary.

5. Are the component units immune to elimination of their identity [antedating or

postdating the Union] and authority?

U.S.A.: As discussed earlier, article 4, section 3 read with case of Texas v. White, the states
cannot be destroyed, their boundaries cannot be altered and not even their names.

INDIA: When India emerged as an independent State, it had nine fully autonomous states,
eight less autonomous states, ten minor states, called Part A, B and C States respectively and
federally administered territories called Union territories. The Reorganization of States has
made this possible in 1965 mainly on linguistic considerations. Thus the power to alter the
boundaries of the States under Indian Constitution do enjoy some “real powers” in all matters
listed in List II as well or change the name of the existing ones is given to the Union
Parliament. Although the power for the total elimination of a State’s identity is available with
Parliament under Article 3(a) of the Constitution of India, it has not taken place so far.

6. Have the component units retained all the powers that the constitution has not
given to the central authority? And are these retained powers significant or
marginal?

14
U.S.A: Article 1, Section 8 of U.S Constitution provides for 18 subject matters for the centre
to legislate upon and is restricted. The remaining power is with the States. Thus residuary
power is with states.

INDIA: In India, exhaustive lists are prepared which chalks out the various areas of the
Centre and States. There never arose any question of residuary power. But then too, if any
entry is not mentioned in any of the three lists, then the Centre has the authority over it. Thus
residuary power is with Centre.

7. Are there two independent set of courts, one interpreting and adjudicating the
federal laws and the other the state laws?

(1)The federal court of America does not have advisory jurisdiction but the Supreme Court of
India has advisory jurisdiction.
(2) The original jurisdiction of the Indian Supreme court covers only federal cases but the original
jurisdiction of the American Supreme court covers not only federal cases but also cases related to
the naval forces, maritime activities, ambassadors, etc.
(3) Appellate jurisdiction of the Indian supreme court covers constitutional, criminal and civil
cases but appellate jurisdiction of the American Supreme court covers only constitutional cases.
(4)The jurisdictions and powers of the Indian Supreme court can be enlarged by the Parliament but
the jurisdictions and the power of the American Supreme Court are limited to that conferred by the
constitution.

8. Is there a judicial authority in the central authority but standing above the
central authority and the components units to determine their respective rights?

U.S.A: Yes, there is this concept of judicial review where the Supreme Court has jurisdiction
to try centre-state dispute. Mculloh v. Maryland27is the classic case of centre state dispute,
where judicial review was used.

27
17 U.S. 316 (1819)

15
India: According to Article 131, the Supreme Court of India has original jurisdiction to try
centre- state dispute. Moreover, judicial review is a basic feature of Indian Constitution
provide in Article 13(2) read with 14, 32, 226. 28

9. Is the territorial division of authority clear and unambiguous?

U.S.A: Reading this with the above discussed, clearly the working areas of both centre and
state has been clearly defined. Even if some confusion remains, the final authority is with
centre

India: Exhaustive three lists are given under Article 246. Thus, there is clear demarcation of
authority. Though a question arise, whether state can make a law which will have effect over
union, answer to this question is yes, but there should be territorial nexus, that is subject
should be real, not illusory, subject must be concerned with the object. But there are very few
instances, which came up before the court regarding conflict of lists; this makes it clear that
there is no ambiguity prevailing in India.

CONCLUSION
The Indian Constitution is impressed with three major loyalties. They all indicate that the
structure was intended to be Federal or Quasi – Federal. The first loyalty of the Indian
Constitution is to the Government of India Act, 1935 that provides its flesh, blood and a good
part of its spirit. The second loyalty is to the American Constitution, which gives it
widespread judicial review of laws and governmental actions, fundamental rights guaranteed
by the constitution. The third loyalty owed is to the British Constitution. Pattern of Indian
Parliament and State Legislatures is from the British model. Despite its diverse hues,
federalism essentially involves the devolution of power and sharing of the decision-making
authority. The format in U.S. can be classified as ‘bottom up’ model, where sovereign pre-
existing units cede power to form a union, and India as ‘top down’ model, with a strong
unitary focus and provincial units, ‘confederations’ within a loose union. Federalism is a
vehicle for managing diversities, multiplicities and pluralities. As such, there can be no truly
federal state. It all depends upon the time and different national environments. And because
of such diverse culture in every nation, it is difficult to decode it on specific yardsticks of
28
International Journal of Multidisciplinary Approach and Studies(IJMAS): Yes, India is a Federal Country

16
federalism. To articulately put it, it was enunciated by Justice P. B. Mukherjee in 1967 in his
book ‘The Critical Problems of the Indian Constitution’ 29: The future of India and her
Constitution will depend on how the nation evolves the principles and practice of federalism
suited to India whose indispensible requisite has to be unity in diversity, integrity with
variety, marked by the wisdom and experience of creating a harmony between the centrifugal
and centripetal forces within this sub-continent.

BIBLIOGRAPHY

BOOKS REFFERED

 The constitution of the United States of America by Mark Tushnet

 Constitution of India M.P JAIN

 American constitutional law by Stephens 3rd edition

 American constitution law by Otis H. Stephens, Jr. 5th edition

 Comparative constitutional law by Hon’ble Mr. Justice BP Banerjee and Prof. BM

Gandhi 2nd edition

 Federal India by Colonel KN Haksar and K.M. Panikkar , Amol publications

 Making of India’s constitution by HR Khanna, eastern book company

 Comparative constitutional law, edited by Tom Ginsburg and Rosalind Dixon

WEBSITES REFERERED

 www.manupatra.com
 www.heinonline.com
 www.lexisnexis.com
 Indian Law Journal

29
Hon’ble Mr. Justice P.B. Mukherji, University of Bombay at Pg. 151

17