FEDERALISM

NATURE OF INDIAN AND AMEREICAN FEDERALISM

ARIZ ABU QAIS

A46011120014
BA LLB 8TH SEM
 Concept of Federalism
Federalism as unity in diversity. 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. Federalism is a
system of government that establishes a constitutionally specified division of powers
between different levels of government. In simple words, Federalism is at its core a
system where the dual machinery of government functions. Federalism is a type of
government in which the power is divided between the national government and other
governmental units. In in other words, Federalism is a constitutional mechanism for
dividing power between different levels of government. Comprehensively, Federal
systems are usually associated with culturally diverse or territorially large countries.
Notable examples of federal countries (or countries with federal- like characteristics,
sometimes referred to as ‘quasi- federations’) include Argentina, Belgium, Brazil,
Canada, Germany, India, Malaysia, Nigeria, Pakistan, Spain, South Africa and the
United States. Mainly, Federalism helps explain why each state has its own
constitution and powers such as being able to choose what kind of ballots it uses, even
in national elections.
There are three ways in which power can be divided between a central authority and
various constituent units of the country:
• Federal
• Unitary
• Confederation Federalism: a system of government in which the same territory is
controlled by two levels of government. In this system, the Central Government
usually oversees the issues that are of importance for the entire country, whereas the
government at the lower level looks after issues of local concern.

Characteristics of federalism
There should be different levels of governments, with each having its own
independent sphere of administrative and legislative competence. Each level of the
government should have an independent tax base. A Written Constitution from
which respective governments derive power. An independent judiciary to adjudicate
if conflict arises between the two tiers of government. Central government In
federation system, The Central government has control over the states through
different agencies and varied techniques:
• Governor
• Directions to the State Government
• Delegation of Union functions
• All-India services
• Grants-in-aid
• Inter-State Councils
• Inter- State Commerce Commission
• Immunity from mutual taxation
Features of Federalism
The best way to understand the federal system is to learn about its features. These
characteristics combined to reflect the true essence of federalism.
1. The essential feature, which is the definition of federalism is that there are two
levels of governance in the country at least. There can even be more But the entire
power is not concentrated with one government.
2. All levels of governance will govern the same citizens, but their jurisdiction will
be different. This means that each level of government will have a specific power
to form laws, legislate and execute these laws. Both of the governments will have
clearly marked jurisdiction. It will not be that one of the government is just a
figurehead government.
3. Another important feature is that the constitution must guarantee this federal
system of government. Which means the powers and duties of both or all
governments must be listed down in the constitution of that country hence
guaranteeing a federal system of governance.
4. As stated above the federalism of a country must be prescribed by the constitution.
But it is also important that just one level of government cannot make unilateral
changes or amendments to the important and essential provisions of the constitution.
Such changes must be approved by all the levels of the government to be carried
through.
5. Now there are two levels of government with separate jurisdictions and separate
duties. Yet there is still a possibility that a conflict may arise between the two. In a
federal state, it will fall upon the courts or rather the judiciary to resolve this conflict.
The courts must have the power to interfere in such a situation and reach a resolution.
6. While there is power sharing between the two levels of government, there should
also be a system in place for revenue sharing. Both levels of government should have
their own autonomous revenue streams. Because if one such government depends
on the other for funds to carry out its functions, it really is not autonomous in its true
nature.
The purpose of this Division of Power between the tiers of government is twofold:
• Preventing concentration of power in the hand of one tier of government
• Generating strength of the nation through the Union.
Degree of Federalism in India and USA
In the US, every state has its own constitution unlike in India. The state constitutions
are much more voluble than the federal Constitution. The Indian Constitution does
not incorporate such specific state-level legislations. So its extraordinary length
cannot be explained away by citing the absence of State Constitutions as a reason.
But it is a fact that much of the bulk in the Indian Constitution is on account of
discussions of centre-state relations. Indian and American constitutional system at a
glance;
A Significant difference between Indian and American constitutional system is India
is a Parliament type of government and in America is a Presidential type of
government. The American Constitution is just 4,543 words long. Even if one
includes the 27 amendments since 1789, we get to 7,591 words. In contrast, the
Indian Constitution has 145,000 words and contains 395 articles in 22 parts and also
contains 12 schedules.. The American Constitution has just seven articles and has
been amended a mere 27 times since its ratification in 1789.
Indian Constitution:
India is a federal country. It means it is a federal state with some features of a unitary
government. The constitution of India has essentially prescribed a federal state of
government. The Government at the centre, which is the Lok Sabha and the Rajya
Sabha. Then the various state governments, the Vidhan Sabhas, and the Vidhan
Parishad. And finally, we have the Municipal Corporations and the Panchayats,
which are forms of local governance. Our constitution makes a clear demarcation
about legislative powers and jurisdictions. It is done through the three lists as below,
A. Union List: This includes subjects that carry national importance, like defence,
finance, railways, banking etc. So such subjects only the Central Government is
allowed to make laws.
B. State List: Includes all matters important to the functioning of a particular trade
like transport, Trade, Commerce, agriculture etc. The state government is the
deciding authority for framing laws on these subjects.
C. Concurrent List: This list includes topics on which both the Union and the state
government can make laws. These are related to education, forests, trade unions etc.
One point to be noted is if the two governments are in conflict with these laws, the
decision of the Union Government will prevail, It is the final authority.
India is a Sovereign Socialist Secular Democratic Republic with a parliamentary
system of government. The Republic is governed in terms of the Constitution of
India which was adopted by the Constituent Assembly on 26th November, 1949 and
came into force on 26th January, 1950. The Constitution provides for a
Parliamentary form of government which is federal in structure with certain unitary
features. The constitutional head of the Executive of the Union is the President. As
per Article 79 of the Constitution of India, the council of the Parliament of the Union
consists of the President and two Houses known as the Council of States (Rajya
Sabha) and the House of the People (Lok Sabha). Article 74(1) of the Constitution
provides that there shall be a Council of Ministers with the Prime Minister as its
head to aid and advise the President, who shall exercise his/her functions in
accordance to the advice. The real executive power is thus vested in the Council of
Ministers with the Prime Minister as its head.
Article 1 of the Constitution says that India is a Union of States. The overriding
concern at the time of drafting the Constitution was the “unity and integrity of India”.
This led to a number of factors that gave the Indian Constitution a decidedly unitary
tilt, with several provisions in favour of the Union. Some of them have been
mentioned below:
• Residuary powers are with the Union Government
• States can be created or diminished without their consent
• Concept of single citizenship, unlike that of USA
• All India Services officers head important positions in States
• The role of Governor in States is very important and he is appointed by the
• Central Government
• The system of audit is headed by the CAG, who is appointed by the Central
• Government
• The judges of High Courts are appointed by the President
American constitutional system
The Constitution of the United States of America is the supreme law of the United
States. Empowered with the sovereign authority of the people by the framers and the
consent of the legislatures of the states, it is the source of all government powers,
and also provides important limitations on the government that protect the
fundamental rights of United States citizens. The Constitution of the United States
is the supreme law of the United States of America. The Constitution, originally
comprising seven articles, delineates the national frame of government. Its first three
articles embody the doctrine of the separation of powers, whereby the federal
government is divided into three branches: the legislative, consisting of the
bicameral Congress (Article I); the executive, consisting of the president and
subordinate officers (Article II); and the judicial, consisting of the Supreme Court
and other federal courts (Article III). Article IV, Article V and Article VI embody
concepts of federalism, describing the rights and responsibilities of state
governments, the states in relationship to the federal government, and the shared
process of constitutional amendment. Article VII establishes the procedure
subsequently used by the thirteen States to ratify it. It is regarded as the oldest written
and codified national constitution in force.
A comparison between the Indian and American constitutional system
The Indian Constitution differs from the American document in one very important
way. It contains within it sections of text that are mildly condescending towards both
the citizenry and future lawmakers. Although the two documents are similarly
progressive in spirit, there’s a vast gulf of history and context that separates them.
India and the United States (US) are the two largest democracies in the world. In
addition to being democracies, the two nations are also constitutional republics,
bound by a written constitution. However, the attitudes of the general public and the
political establishment towards the constitutions are vastly different in the US and
India. In America, it is the political right and the leaders of the Republican Party who
often lace their rhetoric with references to “constitutionalism” and emphasise the
need to have an “originalist” interpretation of the document. While in India, many
sections of the political right are often sceptical of the constitution, believing that
the document is insufficiently suited to Indian realities and Indian culture. The
American Constitution, for the most part, limits itself to describing the structure of
the federal government and makes no attempt to influence the political agenda in the
distant future. It is left to the political parties and working politicians in posterity to
figure that out.
Scope of the two documents
The scope of the American Constitution is primarily the description of the structure
and powers of the federal government. Unlike the minimalist style of the American
document, the Indian Constitution goes above and beyond describing the
constitution
of each arm of government. The Indian document has eleven articles (343-350,
350A/B, 351) dedicated to discussing "Languages". The Indian Constitution's
discussion on Languages alone comprises of more articles than the number of
articles in the US Constitution as a whole. In contrast, the American Constitution
does not discuss Language at all. The United States has no “official” or “national”
language. While the Indian document caters to the heterogeneity of the land, the
American document desists from it notwithstanding the increase in lingual and
ethnic heterogeneity in the US over the past 200 years.
Ratifying the Constitutions
1. The most important and fundamental of all the differences between the Indian
and American Constitutions is the vastly different approaches taken to ratify the
documents. The American document was ratified through a relatively democratic
process wherein each of the 13 states in the Union voted on it through their ratifying
conventions.
2. The ratification of the Indian Constitution was radically different. There is no
Indian equivalent of the Federalist Papers. To get the Indian Constitution into force,
all that was required was the assent of the Constituent Assembly, which was partly
comprised of indirectly elected representatives (elected by provincial assemblies),
and partly comprised of nominated members (for the princely states). So, this was
not a popularly elected body.
3. An even more important point to note is that the Constituent Assembly was deeply
involved in the drafting the Constitution itself. It met over 11 sessions and 166 days
between 1947 and 1950 to discuss the Constitution.
4. In contrast, in the US, there was a very clear separation between the drafting of
the Constitution (done by the Philadelphia convention - a central body with
representation from each state), and the state-level ratification conventions, which
voted on it later.