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COMPARISON OF FEDERALISM IN INDIA, UNITED STATE OF AMERICA AND UNITED KINGDOM
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COMPARISON OF
FEDERALISM IN INDIA, UNITED STATE OF AMERICA AND UNITED KINGDOM
AUTHORED
BY - SMITA R. NAIK1 & PRAJAKTA PIMPALSHENDE2
(1Student
of first year LLM and 2Assistant Professor, PES’ Modern Law College, Pune)
Abstract
This paper constitutes
meaning of federalism, history, types, the mode of operations, distinction from
the confederalism, theoretical explanations
in federal system adoption, modern federalism, federalism in Europe, USA and
India, delegations of powers under federalism etc. which have been discussed
briefly. The idea behind concept of separation of powers is to have transparency
in the mechanism of Central government and to ensure liberty of citizens with
effective implementation of all the laws formulated by State. Federalism is
attractive institutional model for the countries that want an effective
national government and want to grant substantial powers to the regions. It is
good solution for diverse countries having, economically, politically, ethnical
problems and with strong regional identities.
Key words: Federalism, Devolution, Constitution, Central
government, State government
Preamble
Federalism in the world
shows that there is no fixed asset pattern for division of powers between
center and state governments. It is an institutional model for the countries
that want an effective national government and to grant substantial powers to regions.
It is ideal solution for diverse countries having economical, political,
ethnical problems with strong regional identities.
Chapter I:
Introduction
Federalism may
be defined as form of government where there is interdependence of central
government at national level with its constituent units at regional, state, or
local levels. Etymologically, ‘Foedus’ is the root Latin term from which the term Federalism
is derived, that means formal agreement / covenant / treaty. It means sharing
of decision making authority and devolution of power between national and local
governmental units, such that each unit is delegated sphere of power and
authority only it can exercise, while other powers must be shared. In the
context of USA, Federalism meant proper respect for State functions,
recognition of the fact that the entire country is made up of Union of separate
State governments and a continuance of the belief that the national government
will fare best if States and their institutions are left free to perform their
separate functions in their separate ways (Purswani, 2024).
The root-line
of federal constitution is separation of powers and functions between Center
and States. It constitutes division of powers among three forms of government i.e. legislature, executive and
judiciary in order to maintain effective functioning of the government system
and to keep check on them. The powers and responsibilities of all the three
organs should be clearly defined and kept separate, which is mandatory for
ensuring the liberty of people. Main idea behind this concept of separation of
powers is to have transparency in mechanism of the government and to ensure
liberty of citizens with effective implementation of all the laws formulated by
the State. Studies of federations now extant in the world shows that there is
no fixed asset pattern for the division of powers between Center and State
governments. Usually certain powers are allotted exclusively to Center; certain
powers are allotted exclusively to States and there may be common or concurrent
area for both to operate simultaneously (Jain, 2018).
1.1 Brief history of federalism
The first forms of federalism took place in
ancient times, in the form of alliances between the States. An early ancestor
of the federalism was the Ancient Greece,
which was
composed of small polities (city-states). It was united by common culture and
language but divided politically. The city-states formed unions to accomplish
common goals. The subsequent forms of federalism included the Swiss Confederations: 1291–1798,
United Provinces of Netherlands: 1579–1795,
German Bund (1815–66), American Union (confederation of USA): 1781–89
and United States of America: 1789–1865.
Johannes
Althusius is considered to be the father of modern federalism. The United States was the first country with
modern federal constitution, adopted in 1789. The US constitution served as an
inspiration for the constitutions of other European federal countries like
Mexico, Switzerland, Brazil and Germany. Many countries have implemented
federal systems of government with varying degree of central and regional
sovereignty. Nowadays, there are twenty-five federal countries.
US and
India are the world’s largest democratic countries which are focused on their constitutional
system of federalism. The US became federal republic state by upholding
its constitution (1789) while India became secular,
socialist, sovereign and democratic republic by formally launching its constitution (1950). Both the countries had
acquired status of dominion as federal republic wherein, many smaller states
had become aligned to form union with strong central government. Indian constitution was conceived with many
outstanding features from UK and US but was adopted in the Indian sense.
Therefore, have many similarities and distinctions between these federal
republics (Durga Das, 2022).
1.2 Features of federalism
Federalism is the system in which
the power is constitutionally divided between national government and
provincies / states / constituent units. Under federalism, it is necessary to
amend the constitution to change constituents units’ / states' powers. In order
to operate properly, federalism needs to clearly define national and
constituent units’ powers, empower courts to solve disputes between federal and
state governments and introduce supremacy of federal law over state law. Nearly all the countries are divided into smaller
territorial units for administrative purposes. Each country has to decide how
much power to give to these units and how much power the national government
should retain. Under federalism,
the power and sovereignty are constitutionally divided between the federal
government and territorial units wherein, the constitution specifies powers
shared by federal and territorial
units. Thereby, it is becomes necessary to amend constitution to
change states' powers and the national government cannot do so unilaterally (Jain,
2018).
Federalism differs from confederalism,
in which general level of government is subordinate to regional level and
from devolution within
unitary
state, in which regional level of government is subordinate to
general level. It represents central form in the pathway of regional
integration / separation, bounded on the less integrated side by confederalism
and on the more integrated side by decentralization within unitary state.
Federal province include Argentina, Australia, Brazil, Bosnia, Belgium, Canada,
Herzegovina, Malaysia, Germany, Mexico,
Switzerland,
Nepal,
Russia,
Nigeria, Pakistan,
UAE, US and India. Two extremes of federalism can
be distinguished viz., Strong federal
state (completely unitary, with few powers reserved for local governments and
National government with federal states (only for name sake) being confederation in
actuality. Governments of Argentina, Australia, Brazil, Mexico and India are
organized along the federalist principles (Durga
Das, 2022).
Chapter II:
Discussion
The proponents for the federal systems have
historically argued that the power-sharing inherent in federal systems reduces
both domestic security threats and foreign threats. Federalism allows states to
be large and diverse, mitigating the risk of tyrannical government through
centralization of powers.
2.1 Modern federalism
It is the political system based
upon democratic rules
and institutions in which power to govern is shared between national and
provincial / state governments. Term federalist describes several
political beliefs around the world depending on the context. Federalization describes
distinctive political processes, its use Two main types of federalization are
recognized viz., 1) Integrative /
aggregative federalization ( integrate non-federated political subjects
and accession of non-federated subjects into the existing federation) and 2)
Devolutive / dis-aggregative federalization ( transformation
of unitary
state into a federation).
Four competing theoretical
explanations in the adoption of federal systems have described by Deudney (2007) as given below:
1) Ideational theories which hold
that a greater ideological commitment to decentralist ideas
in
society makes federalism more likely to be adopted.
2) Cultural-historical theories,
which hold that federal institutions are more likely to be adopted
in societies with culturally or
ethnically fragmented populations.
periphery where the
center is not powerful enough to dominate periphery and periphery is not
powerful enough to
secede from the center.
4) Infrastructural power theories, which hold that federalism is
likely to emerge when subunits of
potential federation have
highly developed infrastructures (constitutional, parliamentary and
administratively
modernized states).
Immanuel
Kant (Philosopher of 18th
Century) noted
that the problem of setting up a state can be solved even by a nation of devils
so long as they possess an appropriate constitution which pits opposing
factions against each other with system of checks and balances; in
particular individual states required the federation as a safeguard against the
possibility of war (Jain, 2018).
2.2 Federalism in
context of United Kingdom
It is a general perception that
the concept of separation of power has been derived from the British
constitution. However, the England has adopted the theory of Integration of
Power. It is true that the three powers as mentioned earlier are vested in
three organs and each has its own peculiar features, but it cannot be said that
there is no sharing out of powers of the government, thus the King is the
executive head as well as an integral part of the legislature. Similarly, all
the ministers are also members of one or the other houses of the parliament.
The Lord Chancellor is head of the judiciary, chairman of the houses of commons
(legislature), a member of the executive and often a member of the cabinet. The
house of commons ultimately controls the legislature. The judiciary is
independent but the judges of the Supreme Court can be removed on the address
from both houses of parliament.
UK is having parliamentary form of government consisting of the
Queen, House of Lords and House of Commons. The parliament of Britain is a
Sovereign body- uncontrolled and with unlimited powers as it is not having a
written constitution. The legislative process in UK is more or less same as in
India. Parliament make laws and the legislative proposals are in the form of
three types of Bills. Public Bill is introduced by Minister in the House of
Commons. Private Member’s Bill is introduced by any member of the parliament in
the House of Commons and it is proposal of law that would apply to a particular
individual or group of individuals or corporate entity. The local authorities
introduce Private Bill through a petition. Hybrid Bill is a mixture of Public
and Private Bill; usually introduced by government that specifically affect
particular individual or group. The pressure to enact a law comes from various
sources like political manifesto, governmental department, Royal Commission,
non-governmental organizations or lobbies, response to public opinion, law
commission, etc. Some of such Bills are inspired from international treaties.
However only a small percentage of the Bills make it all the way through the
process for final approval (Surya Menon, 2024).
UK comprises
of England, Scotland, Wales (as Great
Britain) and Northern Ireland; each has its own history,
culture and government. The concept of separation of power exists but not in
formal sense as it is in USA. The concept of mixed government with checks and
balances given by Blackstone is more predominant in UK. The three legal
branches (as mentioned earlier) are not formally separated and continue to have
overlapped as it is in India.
Discourse surrounding United Kingdom (UK) membership of the
European Union (EU) has often centered on the federal nature or otherwise of
the EU. This tendency has made the proper assessment of federalism in its
domestic British context more difficult to achieve. Yet at the same time, the
departure from the EU that this interpretation of the concept of federalism
helped bring increased the political salience of the idea of UK federation.
Politicians might now feel more able than they once did to talk openly about a
federal UK. The consistent coverage of the federal constitution remains with
significant variation that not every part of UK has devolved system. The advent
of Brexit has created significant uncertainty about the status of devolved
systems and this event has upset constitutional balance of the UK (Blick, 2021).
In USA, the federation came into existence as a result of the
voluntary compact between thirteen sovereign states. These states surrendered a
part of their sovereign powers to a federal entity and retained with themselves
the un-surrendered residue. The constitution of USA was brought into force in
1787. The powers that the constitution does not delegate to the US are reserved
for the States or the people. Powers reserved for the various States shall
cover all the objects which, in the course of ordinary business, concern
people’s lives, freedoms and property, and internal peace, improvements and
prosperity. The constitution 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.
State governments have plenary power that 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 budget of
its own. The key avenues of national government power centralization have been
defined through the use of legislative authority in intergovernmental trade
regulations. Congress has the authority to enact and levy taxes to maintain
America’s popular security to welfare.
Thus, the constitution adopts very simple method for Centre-State
distribution of powers. It has only one list of specifically enumerated powers
of the Centre and the unremunerated residue of powers has been left to the
States. The doctrine of separation of power forms the basis of American
constitutional structure. Article-I vests legislative power to the congress.
Article-II vests executive powers to the president and Article-III vests
judicial powers in the Supreme Court. Article III of the constitution, federal courts have authority over
disputes between the State and citizens of another State.
There is presidential form of government which is based on theory
of separation of powers between the executive and legislature. The President is
the head of the state as well as chief executive. He appoints and dismisses
other executive officers and thus controls the policies and actions of the
government departments. The persons in charge of various departments designed
as the secretaries of state hold office at his pleasure and responsible to him
and are more like his personal advisors. President is not bound to accept the
advice of a secretary and the ultimate decision rests with him. Neither the
president nor any member of the executive is member of the congress and thus
separation is maintained between the legislative and executive organs. The US
constitution guarantees the independent judiciary. However, the District Court
and Supreme Court judges are appointed by President and there term of office is
lifetime. State or Provincial level, court judges are elected by citizens of
respective state or province and that too for lifetime.
This system of government is fundamentally different from the
parliamentary system prevailing in India. In U.S.A the President is not
responsible to the congress unlike India, where the cabinet is collectively
responsible to the parliament. The President has a fixed term of office and
does not depend on majority support in the congress. Before the expiry of his
term, he can be removed only by the extremely cumbersome process of
impeachment. President cannot disapprove the congress whereas in India Prime
Minister has the power to seek dissolution of the Parliament. The executive
therefore is not in a position to provide effective leadership to the
legislature and it is not always that the congress accepts the programmes and
policies proposed by the executive (Jain, 2018).
India emerged as the federation
after the British Raj. The pre-independence center and provinces became Indian
Union with clear powers divided up into three lists: Union, States and
concurrent lists. Since Indian Federation was indissoluble, it was Union and no
government was allowed to separate from it. Besides, federation is a union
because it is an indestructible strong center to secure the nation. In general
terms, the confederation is the structure in which the units dominate the union
and in the unitary state, the union dominates the units. The union is
effectively dividing legislative authority, with each unit in its position
being sovereign. There are essentials necessary to be called as ‘federal’ and
these are Written and rigid constitution with the supreme rule of the land;
transfer of powers between union government and different states or provinces
may take place and formation of autonomous and impartial judiciary to interpret
the constitution and the rules. However, the
term ‘federation’ has not been used deliberately.
Constitution brings into existence
of constitutional entities viz.,
union, states and union territories. It creates three major instruments of
power, the legislature, executive and Judiciary. It demarcates their
jurisdiction minutely and expects them to exercise their respective powers
without overstepping their limits. Executive powers are vested to President,
Parliament is vested with legislative powers and Judicial powers are endowed to
judiciary (Supreme, High and Sub- ordinate Courts). They should function with
the spheres allotted to them. The Supreme Court has been given power to declare
void the laws passed by the legislature and the actions taken by the executive,
if they violate any provisions of the constitution or the laws passed by the
legislature in case of executive actions. On the other hand the executive has
power to affect the functioning of the judiciary by making appointments to the
office of Chief Justice and other Judges.
2.5 Indian Federalism Compared to Federalism of US and UK
|
India
|
USA
|
UK
|
|
Territorial integrity is
not basic structure of constitution. Territory ceded to Bangladesh under 9th
& 100th constitutional amendment Act. As per articles
1-4, no state can
cede from the Union
|
States cannot unilaterally cede
from the Union
|
Any member state may choose to
leave single market at any time. For this, usually, withdrawal agreement has
to be negotiated and there may be transition period
|
|
Article-3 of the constitution
provide for the merging or splitting of States; such power is exclusively
vested with Government
of India
|
Merging / splitting of
states not allowed except by consent of US - affected States
|
Merging / splitting of member
states possible with consent of citizens of respective state
|
|
Indian president
indirectly
elected; PM leader of parliament, directly elected by citizens (Lok Sabha)
or indirectly
elected as member of Rajya Sabha
|
Power of EU exercised collectively
by council, collegiate body, defines priorities & political directions of
Union. Comprises heads of state / govt. of EU / member states President of E Council and President of E. Commission (latter two have
no voting power)
|
|
|
States with advice of
Union Govt. CM, head of state government, leader of Legisl. Assembly (Vidhan Sabha) or indirectly
elected as member of Legislative Council (Vidhan Parishad)
|
Citizens of the
individual States
directly elect their
|
Election of head of state varies
from member- state to member-state
|
|
Free movement of labour
and goods permitted between States. Interests of migrant workers
protected by Inter-state Migrant Workmen Act (1979)
|
Free movement of labor & goods
permitted between the States
|
Main purpose of EU is
free movement of labor & goods between member-states
|
|
Single currency, foreign
policy and armed forces controlled by Govt. of India
|
Single currency,
foreign
policy & armed forces under by Federal
Govt.
|
Single currency for all EU member-states,
Eurozone foreign policy & armed forces
responsibility of individual member states
|
|
Every state has
constitutional right to impose certain taxes, raise debt, part of union
Govt. revenue is devolved to states
for public purposes
|
Every state has the constitutional right to
impose taxes & raise debt
|
EU has no power to raise taxes/raise debt,
influence fiscal policy
|
|
Multilingual people
follow multiple religions under secular constitution
|
People speak single
language, follow the multiple religions
under
secular constitution
|
Generally, multilingual people follow one
religion under secular constitution
|
Chapter III:
Conclusion
Salient features of the comparison of federalism amongst USA, UK and
India are as under:
? In USA there is only one list
whereas in India there are three lists.
? In USA only the exclusive powers
of the Center are defined, there is no concurrent field and
the residue vests with the States while In India, the exclusive powers
of the Center and States
are defined, there is large concurrent area and residue vests with
Centre and not with States.
? Functions assigned to Center in
India are more complex than those assigned to Center in USA.
? Defense and external affairs are
central subjects in both the countries but the Center’s external
powers appears to be broader in India than in USA.
? Supreme Court in USA has helped
in the growth of Centre as powerful entity, whereas in India
Centre has powerful status given by the constitution itself which is
more persistent than that of
the Centre in USA.
? On the other hand, the structure
and concept of separation of power in India and UK is almost
similar to each other.
? Certain features of federalism are common to both India and USA.
? Many aspects related to the federal character of the constitution
differ amongst India and USA.
? Both USA’s and India’s federalism despite of having limitations
are by and large successful.
? Even though UK, USA and India are democratic countries their way
of the functioning and
making laws are different.
? Both USA and India are having written constitution while UK
doesn’t.
? Both India and UK have parliamentary form of Govt. while USA
follows presidential system.
? India and USA have federal structure but India is more unitary in
nature comparing to USA.
? Crown presides as head of UK Parliament while USA and India are
having President as head.
? In USA and India, legislative power is governed by the
constitution (the supreme law of land)
whereas it is uncontrolled
in UK.
? The constitution of India is more flexible one in comparison with
constitution of USA.
? The constitution of India is the youngest it still holds more
constitutional amendments than the
oldest constitution of
USA.
? India’s federal system, more tilt towards unitary system of
government that is sometimes
considered a quasi-federal system as it has features of both federal and
unitary system.
Federalism has to maintain
balance between Center and States. No legal or institutional formula can
guarantee the smooth functioning of federal polity. Ultimately, people and
political process must develop the culture and set of values and virtues like mutual
trust, toleration and a spirit of cooperation. Federalism celebrates both unity
as well as diversity. National unity cannot be built by streamlining
differences. Such forced unity only generates greater social strife and
alienation and tends finally to destroy unity.
Chapter V:
Bibliography
Andrew Blick (2021). Federalism for the UK: an answer that raises questions. Online paper on
Federal Trust: https://fedtrust.co.uk/federalism-for-the-uk-an-answer-that-raises-questions/
Deudney, D.
H. (2007). Bounding
power: republican security theory from the polis to global
village. Princeton University Press. ISBN 978-1-4008-3727-4.
Durga Das Basu (2022).
Intoduction to the constitution of India. LexisNexis publication, 26th
edn
Jain
M. P. (2018). Indian constitutional law. LexisNexis publication, 8th
edn.
Purswani, P. (2024). Comparing the model of federalism in India
and the US: a constitutional
Perspective. Online paper Voice
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Ijrf Voice: https://ljrfvoice.com/comparative-study-of-legislative-legislative-
process-in-usa-uk-and-india/
Article Information
COMPARISON OF FEDERALISM IN INDIA, UNITED STATE OF AMERICA AND UNITED KINGDOM
Authors: SMITA R. NAIK, PRAJAKTA PIMPALSHENDE
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/07
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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