Federalism In India, USA And France: A Comparative Study By - Shafali Jain

Federalism In India, USA And France: A Comparative Study
 
Authored By - Shafali Jain
CHRIST (Deemed To Be University), Bangalore.
 
Abstract
Federalism, in its most basic form, is the separation of the legislative and executive branches of government into a national and a network of regional governments, allowing each to function autonomously in its own domain. Federalism is a difficult idea to grasp despite the extensive literature on the subject. Political theorists typically describe the idea of federalism with reference to the federal elements of that Constitution because the framers of the United States Constitution founded contemporary federalism. However, just as the framers of the United States' Constitution did, those of a number of other constitutions have also responded to their own federal circumstances, which did not necessitate precisely the same kind of constitution as the one of the United States. The concept of federalism and how it has evolved in India will both be examined in this essay. The difficulties and problems with Indian federalism will also be highlighted in this paper. Finally, the comparison of the federalism systems in India, United States and France are also included.
 
I. INTRODUCTION
In the modern nation-state system, the term “federalism” typically refers to a constitutional system of power sharing between two or more levels of government. It is the sharing of political and constituent authority, or the ability to rule at two levels, however municipal governments may also exist within states. Every federal system needs to divide authority between the federal government and the state governments, who must both be sovereign in their own right and independent of one another. The goal of the notion of federalism is to combine various separate political and administrative units into a unified entity by centralising some aspects of lawmaking and administration while decentralising others. Due to the creation of the Union and States as separate governmental entities, the Indian Constitution creates a dual polity. The Constitution grants the Union and each State Government independence in the areas in which they are given authority, but this independence cannot be absolute, and internal collaboration between them is necessary for them to execute their internal sovereignty. In terms of economics, recognising profit from any common market, and in terms of politics, promoting and protecting individual rights and upholding democratic ideals are some special practises to the goals of federalism.[1]
 
A. Understanding the Meaning and concept of federalism
The Union List, Concurrent List, and State List are three lists in the seventh schedule of the Indian Constitution that list various pieces of legislation.[2] A nation's complex governmental structure known as federalism allows for the coexistence of state and federal governments. The constitution is the source of power for both governments.[3] In a federal constitution, the powers are divided between Centre and State government, where Central government is empowered to make laws for the entire country as well as for the whole of the state, which is in such a manner that every government is legally independent within its own sphere. 
According to Dicey, Federalism means the distribution of force of the state among a number of coordinate bodies each originating in and controlled by the constitution.
 
II. CHALLENGES AND ISSUES INVOLVED
A. The federal system of India as well as India's national spirit are threatened by the federal units’ growing regional sensitivity. Political ideologies play a part in this as well because they concentrate primarily on the normative interests of the specific region and subnational entity.
B. The federal government of India has always divided power between the Centre and the states on an unequal basis. As a result, the union government would have more power than the states. For instance, when they disagree, the rule of the Centre always applies because its units are deemed inferior. 
 
C. The states are always Centre oriented. States depend on the Centre for financial decisions as well. In essence, no specific state budgetary autonomy provision has been mentioned in the constitution. As a result, the states have depended heavily on the union to manage the institutional framework and day-to-day operations. Also, related to taxes and revenue is the fact that the state cannot spend money without first seeking the center's permission and concern. This is how the Indian federal crisis has manifested itself.
 
D. The inequality between states or anti-state imbalances in the Centre may result from unequal representation based on a state's population and territory. Additionally, the fundamental viewpoints on states might occasionally be due to the states’ representation in party politics, insignificant Therefore, while representing their respective states in front of the Centre, each state had to deal with both privileged and unprivileged circumstances.
E. The nature of the state is not permanent in India. The union has the absolute right to divide a state in accordance with national needs. Due to the nature of the union government, Indian federalism struggles to function as intended.
 
III. HISTORY AND EVOLUTION OF FEDERALISM IN INDIA
The Indian subcontinent has been ruled by kingdoms since antiquity thanks to a federal policy of non-interference in local affairs. As a result, all of the territories’ chieftains or provincial administrators were given complete autonomy to rule without interference from the central government.  Both the Maurya Empire and the Mughals supported the idea of giving provincial governors and chieftains autonomy. Both in the past and in the Middle Ages, kingdoms that ruled over India were heavily reliant on decentralised polities.
 
The inherent diversity of the people of the subcontinent was so great that it was only possible to integrate them into an empire if no or very little attempt was made to impose a common set of beliefs. This policy of noninterference in local matters was therefore a practical requirement.
 
Akbar, a successful king, recognised the diversity of the subcontinent and governed using a cooperative federalism approach. Federalism was historically adopted more out of need than by choice. We must not lose sight of the fact that powerful figures like “Sardar Vallabh Bhai Patel” successfully persuaded 492 princely kingdoms to join the Indian Union while upholding the country's unity by promoting the idea of cooperative federalism. In the “Regulating Act of 1773,” where the British Crown established a system of regulation of the East India Company but did not seize control, the cooperative federalism principle also made a modest appearance. Furthermore, the Government of India Act of 1919, which granted significant powers to the provinces, was based on the Montague-Chelmsford report 1918 on constitutional reforms.
 
Only cooperation and accommodation can act as a halt to the conflict between hostile (regional, linguistic, religious, and ethnic) groups. However, the variety of post-independence diversities create a challenging environment.[4]
 
Additionally, the first Prime Minister of Independent India, Jawaharlal Nehru, reaffirmed in his objective’s resolution on December 13, 1946, that all power and authority of the Sovereign Independent India, its constituent parts, and its organs of government derive from the people and that the need for some degree of uniformity with regard to the machinery of government at the Centre was to be considered in “cooperation and consultation with the States.”
 
Since all states except Kerala were administered by the Congress from the post-Independence era up to 1967, there was very little concern for cooperative federalism because problems with the States were seen as problems with the Centre, making the concerns nearly same with little to no distinction. However, during the years 1970–1980, when Congress lost some of the states' elections, the call for cooperative federalism grew louder. Political parties began vehemently demanding at this point that cooperative federalism ideas be incorporated into the central government's policies so that each state receives an equitable share of the benefits of its programmes.
 
It's interesting to note that after 1990, coalition governance at the Centre added a new dimension to the cooperative federalism idea. In contrast to earlier times, when decisions made by the central government were final and representatives of states, even if they were interested parties, had no active role to play, regional issues of states began to gain relevance and were accorded fair weight.
 
Thus, in a certain sense, it may be argued that the coalition government's establishment began to a certain extent the realisation of cooperative federalism, which was the dearly held dream of the Indian Constitution's founders. Thus, in a certain sense, it may be argued that the coalition government's establishment began to a certain extent the realisation of cooperative federalism, which was the dearly held dream of the Indian Constitution's founders.
 
IV. STRUCTURE OF FEDERALISM IN INDIA
In a nation like India, it can be difficult to interpret and put federal thinking into practise. However, scholars have started to consider the federal concept's applicability to the field of social sciences in order to articulate it. It is significant to note that the Constitution of India does not use the term ‘federal’ to describe India.[5] The Indian federal system was not established as a result of a treaty or agreement between its member states. The constitution of India changed the country's unitary system of government into a federal one by granting the states certain duties and powers.
 
The words ‘federation’ and ‘federal’[6] do not appear in any article of the constitution of India.  There is a creation of a dual political system with clearly defined areas of authority for the Union and the states to use in the spheres of responsibility given to them. To resolve disputes between the Union and the States or between one state and another, there is an independent judiciary.[7]
 
However, the Indian Constitution establishes a system of government that is fundamentally federal in nature:
A. Powers are Separated and Clearly Delineated: The Constitution clearly delineates the responsibilities, authority, and roles of the Union and State Governments.
B. Separate Governments: The Constitution established separate legislative, executive, and judicial branches of government for the Union and the States.
C. Bicameral legislature: The Indian Parliament consists of two houses, the Rajya Sabha, which is the upper house, and the Lok Sabha, which is the lower house. Representatives from the states make up the upper house.
D. Clearly stated rules governing the Union and the States’ interactions in legislative, administrative, and financial matters.
 
V. COMPARATIVE ANALYSIS OF FEDERALISM IN INDIA, USA & FRANCE
The United States and India are the two most important federal nations in the world; the former is the oldest democracy in the world and the latter is the largest democracy; both the United States and India are built on federalism in their political systems. Only in 1950 did India formally adopt its constitution, transforming it into a socialist, sovereign, secular, and democratic republic. By that time, both nations had achieved dominion status, in which a number of smaller states had joined forces to form a union with a central government that became known as the Federal Government in the US and the Centra While there are many similarities between the federal structures of India and the United States on the one hand, both federations also differ in a number of ways. While there are many similarities between the federal structures of India and the United States on the one hand, both federations also differ in a number of ways. This is because federations do not operate in a vacuum; rather, real politics, culture, ideology, and history determine how a federation actually functions.
 
The ultimate authority in a federation over major foreign policy decisions and the management of either peaceful or violent international relations rests with the national (federal) government. Instead of reflecting the interests and objectives of the nation's territorial components, the missions of the diplomatic service and the armed forces are those of the federal nation as a whole. There is no express prohibition against secession in the US Constitution. It might be argued that the Articles of Confederation, which it revised and which had pledged the thirteen states to a “perpetual union,” should be read in connection with the Preamble's first language, which emphasises a “more perfect Union.” All fifty states in the United States enjoy immunity because they are separate constitutional entities that cannot be destroyed.
 
In the US, the federal government is seen as having enumerated powers, whereas the state governments have residual authorities. The United States Constitution’s Article 1, Section 8 limits the Center to legislating on 18 topics. The States are in charge of the remaining power. In India, the Union has the residuary powers rather than the states, with the exception of the three lists in Schedule VII (Union, State, and Concurrent powers). Three thorough lists that outline the various regions of the Center and States are created. The issue of residual power was never raised. But if any entry is not included in any of the three lists, the Center still has control over it under Article 248. Therefore, the Center has the remaining power.
 
There are two separate sets of courts in the USA: federal court and state court. One US Supreme Court, 12 circuit courts, and 95 district courts make up the federal judiciary. Only in cases involving Federal Laws does the U.S. Supreme Court have jurisdiction over the entire nation. Since each state has its own constitution and supreme court to interpret its own laws, only cases involving federal law are eligible for appeals from state supreme courts. The Supreme Court is the highest court in India's unified judicial system, which also includes twenty-four additional high courts. The Union and State laws, as well as the Constitution, are all subject to interpretation by the Supreme Court and the high courts.
 
While comparing to the judicial system in USA versus the Parliamentary system of government in the UK, the Indian Constitution is based on principles of constitutional supremacy. The courts are responsible to protect the supremacy of the Constitution. In India, the Constitution is considered as the supreme law of land.
 
In France, the Code civil, on the other hand, was the focal point for providing legal expression to ongoing social and economic developments, where revolutionary forces persisted throughout much of the nineteenth century. As constitutions came and went, the Code civil remained a constant, stabilising force for French society.[8] Significant changes have occurred since 1945, particularly over the past 25 years, that appear to be undermining the traditional centrality of the Code civil while simultaneously elevating the status and importance of the Constitution and constitutionally based laws. Although the Code civil and the legal mindset and methodology it inspired continue to have great importance in France and the current Constitution continues to occupy a problematic position.
 
 
 
VI. JUDICIAL PERSPECTIVE
One of the fundamental elements of federalism is an independent judiciary; if any government exceeds the constitutionally mandated bounds, the Court has the authority to interpret every word. The Supreme Court has issued numerous rulings on federalism, but its position has fluctuated throughout time. In this reference the judgment on basic structure by the Supreme Court is the landmark judgment. [9] The minority opinion in the same ruling noted that the federal character of the Constitution was one of its fundamental elements.
 
The Supreme Court in the case of State of Rajasthan v. UOI[10], cited ‘Granville Austin’ The Indian Constitution was possibly the first founding document to incorporate cooperative federalism, as described by “A.H. Birch” and others.
 
The nine-judge constitutional bench in S.R. Bommai v. Union of India[11], stated that the Indian Constitution had strong unitary aspects in addition to pragmatic federalism, which is overlaid by strong unitary features while outlining the realms of governmental authority of the State and Central Governments.  Further, the apex court in Samsher Singh v. State of Punjab[12] stated various unitary features in the Indian Constitution. Furthermore, in State of West Bengal v. U.O.I.[13], Supreme Court held that the Indian Constitution is not in a true sense follows any conventional pattern of federalism. The Court also held that, the provinces were sovereign, independent entities that had given up some of their authority to allow the Central Government to act in the public interest is unsupported by any evidence.  Federalism suggests mutual recognition and a shared goal for the aforementioned change process with continuity between the Centre and the State, which are the structural units operating on a balancing wheel of concurrence. Federalism also promises to solve problems, promote the social, economic, and cultural advancement of its people, and foster inter-group harmony.
 
The Hon’ble Supreme Court in MC Mehta v. Union of India[14], T.S. Thakur, CJI, A.K. Sikri, and R. Banumathi, JJ., ordered the government and the relevant local bodies to adopt different measures after the Supreme Court heard a plea about the hardships Delhi residents face as a result of the city's high pollution levels. The Central Pollution Control Board was tasked by the Supreme Court with working with other authorities to establish an adequate number of control rooms in the city so that they could monitor the air and take appropriate action.
 
The apex court in Indira Nehru Gandhi v. Raj Narain[15] observed that Dr. Ambedkar claimed our constitution could be "both unitary as well as federal according to the requirements of time and circumstances" and that it avoided the rigid federalism in which the American Constitution was caught. We now practise what might be referred to as “cooperative federalism,” a theory that was not popular when the federations of the United States and Australia were formed.
 
In UCO Bank v. Dipak Debbarma[16], in order to prevent any seizure of authority by either the Centre or the states, the court has made various observations about the federal nature of our constitution and the need to maintain the federal balance that has been envisioned in our constitution.
 
VII. ANALYSIS
A common argument is that "the Indian constitution does not pass certain key requirements of federalism, especially the right of the units to form their own constitution and provision of double citizenship as American constitution has. The Indian Constitution has certain features which diverge from the concept of federalism. It is because of this divergence various constitutional experts have questioned the nature of the Indian Constitution. The critics have described it as rather unitary than federal, since the Centre has more authority as compared to the State government. The enumerations of the three lists are provided in schedule VII, although the important subjects are placed either in Union List or Concurrent List and this distribution has given more power to the Centre. [17]
 
 
The Constitution has certain unitary aspects attached to it. Quoting Article 3 of the Constitution, the parliament can alter the areas, boundaries or names of the states. In the event of emergency, the Union is authorized to make laws in relation to the matters under the State List. [18] “The Parliament is authorized to make laws in relation to the matters included in the State List, if the Council of States decides in a resolution that it is necessary in the interest of the country with at least two-thirds of its members present and voting” [19] “in the event of inconsistency between the Union and State Lists, the laws of the Union shall prevail.”[20] “If two or more states' legislatures agree in a resolution that the Parliament may legislate on the matter in the State list[21].”
 
Our nation's parliament is divided into two houses, known as the Lok Sabha and the Rajya Sabha or Council of States (elected by members of state legislative assemblies). [22] The constitution's Fourth Schedule outlines how seats in the Rajya Sabha would be distributed among the States and Union Territories.
 
One of the criticisms is that the state plays no part in the process of amending the constitution other than requiring the ratification of some amendments by half of the states. The Centre has the authority to make changes. Almost all of the features of a federal constitution are present in our constitution, which is why it is still regarded as federal despite having numerous unitary features. A Constitution need not fully adopt the federal premise in order to be referred to as “federal.”
 
VIII. CONCLUSION
The Centre and states are independent to enact laws in their respective fields as allotted by the constitution, therefore it can be inferred from the explanation above that the Indian Constitution has all the characteristics of a federal constitution. However, the Constitution itself specifically mentions a few instances where the Centre is in charge. The independent judiciary is crucial whenever either government tries to overstep its bounds because it is thought that the Supreme Court is the Constitution's protector and guarantor. The federation must become more adaptable and accommodative, especially in its financial aspects, in light of the rise of regional parties and shaky coalition governments.
 
Three tiers of government were chosen by the electorate; each level is responsible to its own electorate and has a constitutional duty to promote the welfare of its constituents. As a result, the Union and state governments must cooperate and work together with local bodies to address the common needs of the people in light of the changes, such as globalization, technological advancement, and paradigm shift in economic policy.
     

[1] Bagchi, Amaresh. “Rethinking Federalism: An Overview of Current Debates with some Reflections in Indian context”, Economy and Political Weekly, 2000, p. 3025.
[2] M.P. Singh, V.N. Shukla’s Constitution of India 794 (EBC, 2017).
[3] Durga Das Basu, Comparative Federalism 5-6 (Wadhwa, Nagpur, 2008).
[4] Admin, Political Science-Cooperative Federalism in India, Chrome IAS Testing Decodified available at:, https : //chromeias.com/index.php/2017/09/23/political-science- cooperative-federalism-in-india/ (last visited on November 19, 2022)
[5] As per the preamble India is a Sovereign Socialist Secular Democratic Republic. Further, nowhere in the
Constitution, India is described as a federal nation.
[6] The term ‘federal’ complicates the matter as it involves various facets such as political federalism, institutional federalism and fiscal federalism etc. See, https://www.thestatesman.com/supplements/law/cbi-police-face-off-ourtryst-with-federalism-1502732236.html last accessed on November 16, 2022.
[7] Justice V. Dhanapaln, “Basic Structure of the Indian constitution - An Analysis” 8 SCC (J) 2 (2014).
[8] FRANCOIS FURET, REVOLUTIONARY FRANCE 1770-1880 (Antonia Nevill trans., 1988).
[9] Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 : AIR 1973 SC 1461 — Constitution Bench
Judgment
[10] (1977) 3 SCC 592 : AIR 1977 SC 1361.
[11] AIR 1994 SC 1918.
[12] (1974) 2 SCC 831 : AIR 1974 SC 2192.
[13] AIR 1963 SC 1241.
[14] (2015) SCC Online SC 1327.
[15] 1975 Supp SCC 1.
[16] (2017) 2 SCC 585.
[17] Alice Jacob, “Centre-State Governmental Relations in Indian Federal System” 10 (4) Journal of Indian Law Institute (1968). 
[18] Articles 250, 352, 356.
[19] Article 249.
[20] Article 251.
[21] Article 252.
[22] The Rajya Sabha is a representative of the states in the Union legislature (hence the name, Council of States). For this reason, the Rajya Sabha is granted powers that protect the rights of states against the Union.