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A COMPARATIVE ANALYSIS OF INDIAN AND AFRICAN FEDERALISM AUTHORED BY: VIRJA PAWAR
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A COMPARATIVE ANALYSIS OF
INDIAN AND AFRICAN FEDERALISM
AUTHORED BY: VIRJA PAWAR
LLM I YEAR (SEM II) ROLL NO:
77
MODERN LAW COLLEGE
GANESHKHIND, UNIVERSITY
CIRCLE, PUNE DEPARTMENT OF LAW
ABSTRACT
This article conducts a comparative examination of federalist
structures in India and across various
African nations, acknowledging the diversity of historical, cultural, and
political contexts within
the African continent. Federalism serves as a fundamental aspect of governance in both India and several African countries, albeit with
distinct manifestations influenced by unique socio-economic dynamics and historical legacies. Through an exploration of constitutional frameworks, power distribution between
central and regional
entities, intergovernmental relations, and mechanisms for conflict resolution, this study seeks to identify commonalities, disparities, and
underlying factors shaping federal systems in these regions. By analyzing
historical trajectories and contemporary challenges, this research contributes to a nuanced
understanding of federalism's efficacy and adaptability within diverse national
and continental contexts,
thereby informing potential
avenues for institutional development and
governance reforms in both India and
Africa.
KEYWORDS-
Federalism, India, Africa,
Comparative analysis, Governance, Constitutional framework, Power distribution,
Historical legacies.
INTRODUCTION-
Federalism, as a system of governance, has emerged as a
pivotal mechanism for managing diversity and promoting unity
within nations characterized by pluralistic societies and regional disparities. India and Africa
stand as two regions where federalist structures have been adopted
to accommodate linguistic, cultural, ethnic, and geographical diversities while ensuring national cohesion. This introduction sets
the stage for a comparative analysis of federalism in India and across various African
nations, recognizing the complexities and nuances inherent
in their respective historical trajectories, socio-political contexts, and governance frameworks.
India, the world's largest democracy, adopted a federal
system following its independence in 1947. With its diverse
population comprising numerous
linguistic, ethnic, and religious groups,
India's federalism has been instrumental in accommodating regional
aspirations while maintaining the integrity of the
nation-state. The Indian federal model, enshrined in the Constitution, delineates powers between the central government
and the states, ensuring a delicate balance
of authority and autonomy.
Similarly, across the vast and diverse continent of
Africa, federalism has been embraced by several
nations as a means of managing ethnic diversity, addressing regional
inequalities, and promoting
democratic governance. From Nigeria to South Africa, federal arrangements have been established to devolve powers to sub-national entities, recognizing the unique cultural
and historical identities of different regions.
Despite the shared objective of promoting unity amidst
diversity, the implementation and effectiveness
of federalism vary significantly between India and African countries.
Historical legacies, colonial
experiences, socio-economic dynamics, and institutional frameworks have shaped federal systems
differently in these regions, leading
to divergent outcomes
and challenges.
This article seeks to undertake a comparative analysis of Indian
federalism and federalist structures
across various African nations. By examining constitutional frameworks, power distribution mechanisms, intergovernmental relations, and conflict resolution mechanisms, this study aims to identify similarities,
differences, and underlying factors influencing federal systems in these regions. Through this comparative lens,
insights can be gleaned into the strengths, weaknesses, and potential areas
for improvement within
both Indian and African
federalist frameworks, contributing to a broader
understanding of federalism's adaptability and effectiveness in diverse national
contexts.
What is Federalism?
Federalism is compound
mode of two governments. That is, in one system there
will be a mixture of two governments –
state government with central government. In India, we can describe
federalism as a distribution of authority around local, national, and state governments. This is similar
to Canadian model
of political organization.
Federalism is at its core a system where the dual machinery of government functions. Generally, under federalism, there are two levels of government. One
is a central authority which looks after the major affairs of the country. The other is more of a local government which looks after
the day to day functioning and activities of their particular region.
For example, our Indian Constitution says that India too is a federal country. As you know we have two levels of parliament, the at center the Union government and at State level, we have
the individual State governments.1
Features of Federalism
The best way to comprehensively understand the federal system is to learn about its features. These characteristics combined to reflect the true essence of federalism.2Let us study them.
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
1Introduction to Federalism, www.topper.com ,available athttps://www.toppr.com/guides/political-science/federalism/introduction-to- federalism/, last seen on 24/03/2024.
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. Well 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.
Evolution of Indian
Federalism
In India, Between 321 and 185 B.C. in Magadha, the
Mauryans for the first time assimilated a
number of kingdoms and republics which might be the first sub-continental state
in Indian history India. The Mughals,
beginning with Sher Shah’s land revenue system and Akbar’s division
of his empire into Provinces
provide excellent examples of a federal government.
The turning point in India’s federal scheme came when it
was taken over by the British forces.
The genesis of the present federal system in India lies in the Simon Report of
May 1930 which supported the idea of a federal government in India. The Government
of India
Act 1935 aimed to
establish India as a
Federation of States.3
Constitutional Framework:
The constitutional framework of India meticulously
delineates the distribution of powers between
the Union (central government) and the States, establishing a robust federal
structure that maintains a delicate balance between centralized authority and regional autonomy.
Distribution of Powers between the Union and States:4
·
The Indian Constitution delineates
the powers of governance between the Union and the States through
three distinct lists: the Union
List, State List, and Concurrent List.
·
Union List: Encompasses subjects of
national importance such as defense, foreign affairs, currency, banking, and communication. The Union government has
exclusive legislative jurisdiction over matters listed here.
·
State List: Includes subjects of
regional interest such as public health, police, agriculture, and local government. States have
exclusive legislative authority over items enumerated in this list.
·
Concurrent List: Contains subjects
where both the Union and States can legislate
concurrently, such as criminal law, marriage, bankruptcy, and education. In case of a conflict between Union and State laws on
concurrent subjects, the Union law prevails. Role of Concurrent List and
Residuary Powers:
·
The Concurrent List is a unique
feature of Indian federalism, allowing both the Union and States to legislate on specified
subjects. It fosters cooperative federalism and facilitates harmonization of laws on shared subjects.
·
Residuary Powers: Any matter not
explicitly mentioned in the Union List, State List, or Concurrent List falls under the residuary powers. These powers
reside with the Union government, ensuring
that in matters not covered explicitly, the central
authority holds
3 Insights Mindmaps,Federalism in India,1, available on https://www.insightsonindia.com/wp- content/uploads/2018/11/Federalism-in-India.pdf ,
last seen on 1/4/2024.
4 Neelu
Kishnani, Indian Federalism: In Theory
And Practice,11, International journal of creative research thoughts,3(2023), available on https://ijcrt.org/papers/IJCRT2312743.pdf, last seen on 1/4/2024.
legislative jurisdiction. Amendment
Procedures and Federal
Balance:
·
The Constitution of India outlines
procedures for amendments to maintain a balance between federal and
unitary aspects of governance.
·
Amendments to certain provisions
require a special majority in Parliament (two-thirds majority of members present and voting) and ratification by at
least half of the state legislatures.
This ensures the consent of both the Union and the States in matters impacting federal relations. The Constitutional
provisions pertaining to the distribution of powers, the role of lists, concurrent jurisdiction, residuary powers, and
the amendment procedures collectively
form the backbone of India's federal structure. They provide a framework that balances the authority of the central
government with the autonomy of the States, fostering a cooperative and resilient federal system that adapts to the
evolving needs of the nation while preserving its unity and diversity.5
Features and Challenges of Indian Federalism:
Division of Powers:
Legislative, Executive, and Financial:
·
Legislative Powers: The
Constitution delineates the legislative powers between the Union and States through the three lists—Union
List, State List, and Concurrent List. This division ensures exclusive, concurrent, or shared legislative authority over specific
subjects, fostering a balanced distribution of powers.
·
Executive Powers: Both the Union and States have their executive
machinery responsible for implementing
laws within their respective jurisdictions. The federal structure allows for
the autonomy of states in executing
laws pertaining to State List subjects while
maintaining national unity through the Union's executive authority
over Union List subjects.
·
Financial Powers: India practices a system of fiscal federalism where financial resources
are allocated between
the Union and States through
mechanisms like tax sharing and grants-in-aid. However,
financial disparities and dependence on the Union for resources
often pose challenges to the fiscal
autonomy of States.
Role of Federal Institutions: President, Parliament:
·
President: As the ceremonial head
of the state, the President's role in federalism includes appointing governors, assenting to bills,
and ensuring the smooth functioning of federal
institutions.
·
Parliament: Comprising the Lok Sabha (House
of the People) and the Rajya Sabha (Council of States), Parliament legislates on Union
List subjects and Concurrent List subjects. The Rajya Sabha represents the interests of States, ensuring
their participation in the legislative process.
Centre-State Relations and Conflicts:
·
Challenges persist in maintaining a
harmonious relationship between the Union and States, often leading to conflicts over jurisdiction, allocation of
resources, and implementation of policies.
·
Issues like disputes over water
resources, distribution of finances, interference in State matters
by the Union, and differing
political ideologies between
ruling parties at the center and in States
contribute to these conflicts.
Language and Cultural
Diversity:
·
India's federalism is deeply
influenced by its linguistic and cultural diversity. Recognizing this diversity, the Constitution provides
for the use of multiple languages for official purposes and safeguards
cultural rights.
·
Challenges arise in managing
linguistic diversity, ensuring equitable representation, and balancing regional aspirations without
compromising national unity. Conflicts over language policies and cultural rights occasionally surface, demanding
delicate handling by the federal structure.
In conclusion, while Indian federalism presents a robust
framework with distinct features in division
of powers, federal institutions, and recognition of diversity, challenges
persist in maintaining a harmonious relationship between the Union and States.
Balancing the need for a strong
centre with regional autonomy, addressing fiscal disparities, resolving
conflicts, and respecting linguistic and cultural diversity remain ongoing tasks
in India's federal
governance. Achieving a
balance between unity and diversity remains a constant endeavour for Indian federalism.6
6 Supra note 8 at 10.
Origins and Rationales of Federalism and State
Restructuring in Africa-
During the 1960s and 1970, in the wake of decolonization, several
federal orders were made in Africa,
but all were shortlived, making the continent home of failed federal arrangements. The Central African
Federation (1953–1963), the Senegambia Confederation (1982–1989), Kenya's Majimbo constitution (1963–1964), the Mali
federation (1959–1960), the Ethiopian-Eritrean Federation (1952–1962), and Federal Cameroon
(1961–1972) are prominent failed federations after which
Steytler (2019, 175) described the continent as “the graveyard of federations.” The failures can be attributed to the
absence of an autonomous and genuine
federalist initiative preceding
African independence. As most African
states are multinational, federalism should be preferred. However, federalism is very unpopular in Africa, which can be due to the burden of an
authoritarian past, colonial or non-colonial. Colonial powers pursued divide-and-rule policies, imposed arbitrary
boundaries, followed ethnic and racial
profiling and classification that reinforced cleavage lines, and, in some
cases, created divisions that did not
exist previously that hindered federalism from growing (Osaghae 2004, 166) . As most states are multinational, the absence of democratic and accommodative mechanisms also exacerbated internal
conflicts. Consequently, the governing elites fear that federalism is a springboard for secession. The continent's history
of federal failure
should also have discouraged
African states from embracing federalism.7
Regardless, Nigeria observed
a federal order arranged by the departing British authorities. And its
federalism helped maintain the state's territorial integrity (Suberu 2009, 68).
At birth, Nigeria's territorial
organization was based around its major ethnic groups, the Hausa-Fulani in the Northwest, the Yoruba in the
Southwest, and the Igbo (Ibo) in the Southeast (Falola 2001, 5). Post-1990, the politics of territorial restructuring
intensified in Africa as more states adopted federalism.
A prominent case is Ethiopia, which restructured its
century-old centralized state following a prolonged
civil war (1974–1991). The origin of Ethiopian federalism is the suppression of diversity
and the violent state-building process
under the imperial
and the Derg eras, which led to the emergence
of identity-based forces demanding autonomy.
The process was galvanized
7 Bizuneh Yimenu, Federalism and State Restructuring in Africa: A Comparative Analysis
of Origins, Rationales, and Challenges ,54
Publius: The Journal of Federalism 5,6,(2024), available on https://academic.oup.com/publius/article/54/1/6/7152467?login=false, last seen on 6/4/2024.
by the Ethiopian
Students Movement that embraced Stalin's
notion of national
self- determination,
ultimately toppling the communist Derg in 1991 (Rock 1996, 93). Post-1991, Ethiopia became a constitutionally cemented
federation of its nations, nationalities, and peoples with the right to self-determination,
including secession, a model akin to the former Soviet Union. Post-apartheid South Africa welcomed federalism in 1993
by adopting an interim constitution
that set a framework for a complex negotiation, which led to a new constitution that territorially devolved powers in 1996
(Simeon 1998, 42–43). Federal developments in
Ethiopia and South Africa were followed by the revitalization of
federalism in Nigeria, the oldest-living African federation, after the military
rule in 1999 (Suberu 2013, 416).
Post-2000, federalism and state restructuring got more
attention in two post- conflict
African states: Somalia and South Sudan. The first attempt to assemble Somalia
as a united polity started during the
1960s anti-colonial struggle. After independence, efforts were made under the banner of “greater Somalia,”
an idea to unite five territories inhabited by Somali ethnic
groups (Dahir and Sheikh Ali 2021, 3). The internationally pushed Somali reconciliation conference embraced federalism by adopting the Federal Charter
in 2004 to rebuild the country after decades of civil war (Kefale 2019).
This was followed by elections and a new interim federal pact in 2012, setting a good foundation for federalism.
Between 2012 and 2016, four Federal
Member States (FMS) were created (Dahir and Sheikh Ali 2021, 3–5). South
Sudan's federalism root is the 1994
Sudan constitution that created 26 new states; ten would become South Sudan (Fessha and Dessalegn 2022,
873). In 2005, negotiated settlement with Sudan enabled South Sudan to inaugurate its ever-first parliament and
endorse South Sudan to be federally
governed (Sudan Tribune 2009). The country adopted a transitional constitution
that established a bicameral chamber
and crudely distributed powers among three tiers of government.8
Although the approaches they followed diverge,
accommodation of diversity and conflict management are the primary
rationale of federalism in Africa, as is the case in Asian federations such as Iraq, India,
Malaysia, and Sri Lanka (Breen 2017; Bhattacharyya 2019; Shakir 2019). Diffusing secessionism by allowing territorial self-rule is additionajustification
Constitutional Basis of Territorial Government in Africa-
Federalism is based on the constitutional distribution of powers
between at least two tiers
of government.9 Nigerian states
have wide-ranging residual powers (Nigerian Constitution, Schedule
2 parts 1 and 2). The first Nigerian republic
created stronger regions
the center. However, the
fourth republic changed the locus of power to the center by empowering it over matters like the police, state
creation, political parties and making oil and natural gas federal
competencies (Adamolekun 2005,386). Ethiopian regions have residual powers (except tax) besides competencies regarding
regional police,working language, civil service, land administration, regional development policies, and regional
constitutions (Ethiopia Constitution, Articles 52 and 98).
However, the center's power over nationwide policies and constitutional centralization of lucrative revenue sources
limits regional policy autonomy. South
African provinces are conferred exclusive powers over less vital matters such
as liquor licenses, provincial
planning, cultural affairs, and provincial roads and traffic. Key policies such as agriculture, health, housing,
transport, education, language, police, and welfare are concurrent. Provinces have weak fiscal powers because they have
a narrow tax base and lack autonomy
over provincial taxes as they are subject to national regulation (South African Constitution, Schedule 4-5 and Section 228(2)).
Like Ethiopian regions,
South African provinces are constitutionally empowered to adopt their
own constitutions. For instance, Kwazulu-Natal and the Western Cape
exercised such powers by enacting
provincial constitutions. De jure, South African provinces have limited
legislative competence relative to
Nigerian states and Ethiopian regions. However, de jure and de facto regional competences rarely correspond in
Ethiopia as regions lack the autonomy to exercise constitutional prerogatives, not just residual powers but also
exclusive regional competence such as
land administration (Yimenu 2022a). In the three federations, the center cannot unilaterally amend the constitutions; it needs a two-thirds majority of
the states.
African federations vary regarding CU representation in
the second chamber. Nigeria's upper House
(Senate) consists of 109 directly elected three representatives from each state
and one from the Federal Capital
Territory (FCT), Abuja (Nigerian Constitution, Chapter 5 Part V, Articles
48 and 77). Senate leadership posts are allocated
informally for ethnic power-sharing
9 Bizuneh Yimenu, Federalism and State Restructuring
in Africa: A Comparative Analysis of Origins, Rationales, and Challenges ,54
Publius: The Journal of Federalism 5,6,(2024), available on https://academic.oup.com/publius/article/54/1/6/7152467?login=false,
last seen on 6/4/2024.
(Baba 2013, 113). The Senate joins the House of Representatives in
lawmaking (Nigerian Constitution,
Chapter 1 Part II, Article 4). Initially, Nigeria's Senate resembled the
politically weak British
House of Lords
(Dent 1989, 183). Later, the American style is followed,
a directly elected
Senate with important competence (Suberu
2009, 74).
Ethiopia's second chamber, the House of Federation
(HoF), is unique because it explicitly represents NNP rather than regions. NNP are the federation's founders,
sovereigns, and constitutional adjudicators (Ethiopian
Constitution, preamble, Articles 8, 61, and 62). Each NNP is represented by at least one member, denoting equal
representation and one additional representative for each million
of its population, suggesting proportional representation. Contrary to other second
chambers in Africa,
the size of the HoF's
members is revised
regularly to reflect the
population and NNP represented (Yimenu 2022b, 7). The HoF has no legislative power
but non-legislative competencies regarding self-determination, federal
grant, and constitutional adjudication (Ethiopian Constitution, Article 62). This arrangement leaves
Ethiopian regions with no representation in lawmaking. The system is
further complicated because the lower
House is dominated by two populous regions, Oromia and Amhara, which can form a majority
in the House, risking other regions'
interest in policymaking.
South Africa's upper house, the National Assembly of
Provinces, is composed of a single delegation
from each province consisting of ten delegates. Like the Nigerian Senate, it
joins the National Assembly (lower
House) in legislating laws (South African Constitution, Section 42 and 60(1)). The provisional
Constitution of Somalia declares that members of the upper House shall be elected directly, states shall be equally represented in the House,
and the House
legislates (Articles 71-76). South Sudan's transitional Constitution
asserts that members of the upper House,
the Council of State, constitute all State Assemblies members and thirty
members appointed by the country's
president (Articles 58-59).
Africa's second chambers
equally represent
subnational units to enable them to participate in making laws at the national
level, except Ethiopia's, which neither joins the lower House to make laws nor legislate unilaterally.
Case Laws Related
India is not a federal
State in the traditional sense of the word, the Apex Court stated in Pradeep Jain V. Union of India10. It is not an agreement
between independent States that
have joined forces to create a union by reneging on unquestionably
federal principles. The Supreme Court
reiterated the following in Ganga Ram Moolchandani v. State of Rajasthan11: The Indian Constitution is fundamentally federal
in form and is distinguished by the traditional features of a federal system,
namely supremacy of the Constitution, power sharing between
the Union and States, and the
existence of an independent judiciary. Similar sentiments were voiced
by the Supreme Court in ITC
LTD v. Agricultural Produce
Market Committee12.
The Supreme Court expanded the doctrine's importance as being
superior to any parliamentary law in
the 1978 Maneka Gandhi v. Union of India13 case.
The ruling states that if a parliamentary act broke the fundamental principles of the constitution, it cannot be regarded as a law. This important fundamental
rights assurance was hailed as a singular illustration of judicial
independence in upholding the
sanctity of fundamental rights.
Fundamental Rights, which can only be changed by a
constitutional amendment, serves as a check on not only the executive department but also the legislatures of the federal
and state governments. The rights granted
by Article 19 may be temporarily suspended
as a result of the declaration of a state
of emergency.
Conclusion
In conclusion, the comparative analysis of Indian federalism and
federalist structures across various
African nations reveals both commonalities and disparities, underscoring the complexity of federal governance in
diverse socio-political contexts. While federalism serves as a mechanism for accommodating
diversity, promoting unity, and decentralizing power, its implementation and effectiveness are influenced by historical legacies,
institutional frameworks, and socio-economic dynamics.
Both India and African countries have grappled with
challenges such as balancing centralization with decentralization, managing
intergovernmental relations, and resolving conflicts between central and regional
authorities. However, the specific manifestations of these challenges differ due to the unique historical
trajectories and contextual factors shaping federal systems in each region.
India's federal model, anchored in a robust constitutional framework, has provided a platform for accommodating linguistic, cultural, and regional diversity while maintaining
national cohesion. The principles of cooperative federalism and
asymmetric devolution have facilitated
cooperation between the central government and states, contributing to India's democratic resilience and socio-economic development.
In contrast, federalist structures in African
nations exhibit greater
heterogeneity, reflecting the
continent's diverse colonial experiences, ethnic compositions, and governance traditions. While federalism has been
adopted as a means of addressing ethnic tensions and regional disparities, its effectiveness has been hindered
by challenges such as weak institutional capacity, ethnic fragmentation,
and political instability.
Despite these challenges, both India and African countries continue
to navigate their federal systems,
adapting to changing socio-political dynamics and pursuing avenues for institutional reform. By learning from
each other's experiences and exploring best practices, there exists an opportunity for mutual learning and
collaboration in strengthening federal governance and promoting inclusive development.
Moving forward, policymakers and scholars must engage in informed dialogue
and exchange to address the evolving challenges facing federalism in India and Africa. Emphasizing principles of subsidiarity,
inclusivity, and democratic participation can enhance the resilience and effectiveness of federalist structures, fostering greater harmony
and prosperity within diverse multiethnic societies.
In essence, the comparative analysis of Indian and African
federalism underscores the importance
of context-specific approaches and collaborative
efforts in advancing federal
governance as a means of fostering unity, diversity, and inclusive
development in the 21st century.
Article Information
A COMPARATIVE ANALYSIS OF INDIAN AND AFRICAN FEDERALISM AUTHORED BY: VIRJA PAWAR
Authors: VIRJA PAWAR
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/07
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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