Open Access Research Article
INDIAN AND CANADIAN FEDERALISM : A COMPARATIVE STUDY BY:- MISS. NIYATEE BHAGWAN CHIKNE
Published Paper
Article Details
INDIAN AND CANADIAN
FEDERALISM : A COMPARATIVE STUDY
AUTHORED BY:- MISS.
NIYATEE BHAGWAN CHIKNE
CLASS:- LL.M. 1st year
SEMESTER :2
ROLL NO. 110
PROGRESSIVE EDUCATION
SOCIETY’S
MODERN LAW COLLEGE, PUNE
Abstract:-
This paper presents a
comparative analysis of federalism in India and Canada, two diverse nations
with unique socio-political contexts. Federalism, as a system of governance,
distributes power between central and regional governments. In India, federalism
operates within a highly diverse and populous society, while Canada navigates
federalist principles within a geographically vast and culturally varied
landscape. This study examines the historical evolution, constitutional
frameworks, distribution of powers, intergovernmental relations, and challenges
faced by federalism in both countries. By exploring similarities and
differences, this comparative analysis aims to provide insights into the
functioning, strengths, and weaknesses of federal systems in India and Canada,
contributing to a deeper understanding of comparative federalism globally.
Federalism is a system of government in which power is divided between a
central authority (the federal government) and constituent political units
(such as states or provinces). It allows for a sharing of powers and
responsibilities between the national government and subnational entities,
often providing a degree of autonomy to the latter while maintaining a unified
political system.
Introduction:-
The division or absence of division of powers
between the national and provincial administrations determines whether a state
is federal or unitary. In a federal system, the formal separation of powers is
established by the constitution. In a unitary system, there is no distinction
between the national government and the states or provinces. It is possible for
power to be devolved from the central/national government, but this is rare
granting local governments specific authority. Federalism is a crucial concept
for comparative politics .Some scholars have also utilized federalism to
examine regionalization and regionalism in international politics and area
studies. The usefulness of federalism has been the subject of debate. In the
first half of the twentieth century, Harold J. Laski declared that the
federalist era had ended. In contrast, eminent federalism scholar William H.
Riker asserted to the second half of the 20th century that the age of
federalism had arrived. Recent research has determined that, despite contending
claims, twenty-five states are federal states. Australia, Argentina, Austria,
Belgium, Germany, Russia, Switzerland, the United States, India, Brazil,
Mexico, Canada, Nigeria, Pakistan, Malaysia, and the United Arab Emirates are
among these countries. Nevertheless, approximately forty percent of the world's
population lives in federal republics.[1]
Federalism is
a political system. In it, the powers of government are split between
federal and state or provincial levels. The federal (central)
government has jurisdiction over the whole country. Each provincial government
has jurisdiction over its population and region. In a true
federation, the smaller states are not sovereign. They cannot
legally secede. Canadian federalism has swung between centralizing control
and decentralizing it. Both levels of government get their powers
from Canada’ constitition. But it includes features that do not fit with a strict approach
to federalism.[2] In
contrast, eminent federalism scholar William H. Riker asserted to the second
half of the 20th century that the age of federalism had arrived. Recent
research has determined that, despite contendingclaims, twenty-five states are
federal states. Australia, Argentina, Austria, Belgium, Germany, Russia,
Switzerland, the United States, India, Brazil, Mexico, Canada, Nigeria,
Pakistan, Malaysia, and the United Arab Emirates are among these countries.
Nevertheless, approximately forty percent of the world's population lives in
federal republics. Federalism requires the sharing of constitutional and
political power, i.e., the ability to administer at two levels; however, a
state may also contain local governments. Every federal system necessitates a
separation of powers between the federal and state governments, each of which
is autonomous and not subordinate to the other.[3]
Overview of the Indian Federal System
India has
had a written constitution since 1950. This document was officially adopted on
January 26, stating that India is a union of states. The Indian Constitution is
silent on using the term federation; however, as a unitary document, it is also
federal. This precedent is set according to the requirements of time and
circumstances. The framework of their political structure mainly works as a
national system. It reverts to a unitary system when the country faces the
threat of war. This method concentrates power at the Centre to execute
strategic war decisions.
Overview of the
Canadian Federal System
Canada functions similar to the U.K. in that it is a
constitutional monarchy. The nation has a constitution founded on the rule of
law and respect for rights and freedoms. The heads of State in this country
mainly handle ceremonial tasks whilst governing is done through representative
democracy in Parliament. All decisions taken by Parliament in Canada are said
to be in the name of the Crown. Regardless of this gesture, the proper
governing authority derives its legitimacy from the Canadian people. in Canada’s Parliament.
Concept of Federalism:-
In its simplest form, federalism refers to
"a division of jurisdiction and authority between at least two levels of
government" This division typically occurs between two or more
constitutionally recognized levels of government, i.e., levels of government
with their own autonomous or semi-autonomous constitutional powers. According
to the ''gathering together'' theory of federalism, the word ''federalism'' is
derived from the Latin word Oedus, which means ''league,'' ''treaty,'' or
''compact.'' Moreover, each level of government typically has its own distinct
jurisdiction, i.e., areas of public policy over which it alone can exercise
authority or has the ultimate say. Typically, the national government has the
ultimate say on "national"issues such as national defense, foreign
policy, and treaty-making, to name a few. In contrast, regional administrations
will have authority over more "regional" issues, although this can
vary significantly between federations. The term federation' is derived from
the Latin phrase foedus, which means an agreement, contract, or compact.
Consequently, a federal state is viewed as a compact or association of
states/provinces as a result of a deal or treaty. It is a configuration whereby
a number of comparatively separate elements join together to form a whole. It
refers to a governing body that is divided both functionally and structurally
into national administrations and their constituent sections, called provinces
or states. The political institutions, compositions, and operations of federal
states must reflect this associational relationship. Robert Garan describes
federalism as a "form of government in which sovereignty or political
power is divided between the Central and Provincial Governments so that each is
independent of the other within its sphere." Most frequently, federalism
emerges through either the centripetal or centrifugal processes. The
constituent elements initiate the construction of the federation in the
centripetal process. The reasons for forming a federation can vary from case to
case. However, the main draw and push factors in the centripetal origin of
federalism are the security concerns of constituent units and the desire for
economic prosperity.[4]
Establishing a Federal
Union:-
The Constitution of the United States
(1787) is the first example of a modern federal constitution. A federal union
of the British north American colonies was first conceived in the
early 19th century. It was pursued more seriously from 1857 onwards.
Negotiations among the province of Canada new brunsik and nova
scotia took place at the Charlottetow
conference and the Quebec conference in 1864. These discussions led
the British Parliament to pass the British North America Act (now
called the constitution act 1867). It united those three colonies into a
federal state as of 1july 1867. Canada’s first prime minister Sir
John a Macdonald, was not keen on federalism. He preferred a unitary state. In
this model, provinces would get their authority from — and would be subordinate
to — the central government. Another key factor was the American
civil war. It saw the Southern States secede from the federal union. This led
to the fear that giving the provinces too much power would make the country
unstable. For these reasons, the canadian constitution includes features
that do not fit with a strict approach to federalism.[5]
Written and Rigid Constitution of Canada:
The Constitution Act, 1867, also known as
British North America Act, 1867, passed by the British Parliament, introduced a
parliamentary form of government with a federal system in Canada. The amendment
process of the Canadian constitution has evolved over a period. The 1867 Act
had no formula to amend the constitution. The Canadian Parliament used to
request the British Parliament to decide whether the amendment was to be done.:
258-259). First, provisions affecting the federal government can be amended by
the federal Parliament. Second, provinces have exclusive power to amend the
constitution of the province. Third, few amendments also require the approval
of two-thirds.[6]
Fiscal Federalism In Canada :-
Fiscal federalism is an area of study in which
the principles of economics are applied to the functioning of the public sector
in a multi-level government. Fiscal federation is concerned with two basic
issues, (1) Efficiency and (2) Equity, Efficiency determines the assignment of
tax powers and expenditure responsibilities among different levels of
government. The federation of Canada is comprised of 10 provinces and 3
territories which derive their basic powers and responsibilities from the
constitution of 1867. Both levels rely on many of the same types of taxes, most
importantly personal and corporate income taxes and consumption taxes. Though
the provinces have virtually complete freedom to define their tax bases and
rate, most provincial income taxes are collected by the federal government. In
Canada tax collection agreement between the federal and provincial government
provides for joint use of the same income tax base. The provinces with the
exception of Quebec and Ontario set their own personal and corporate income tax
rates charged by the centre. The taxes are collected by the federal government
and then remitted directly to the provinces. In Canada, there is a federal VAT
that is levied throughout the country.[7]
Fiscal Federalism in India:-
In India Federalism in India is characterized
by constitutional demarcation of revenue and expenditure powers among the three
levels of government. More than 1.20 billion people in the country are spread
over twenty-nine (including Telangana) states and seven union territories. The
constitution of the Indian Republic, like the 1935 Act, provided the three fold
distribution of powers (Article 246). It transferred a few minor items from the
Central list to the State list and allotted greater powers to the central
government such as national highways, inter-state trade and commerce. The
matters of national importance were assigned to the Union list (list-I) and
those of regional importance were assigned to State list (list-II). With the
passing of the 73 and 74* constitutional amendments, two separate schedules
were inserted into the constitution listing the functions to be assigned to
rural and urban local bodies. The State governments are also supposed to
appoint a State Finance Commission (SFC) for every five years to assess the
requirements of the rural and urban local bodies and recommend transfers to
them.[8]
Historical
development of federalism in India
The historical development of federalism in
India can be traced back to the country's colonial past and the process of
independence and nation-building that followed. Here is an overview of the key
developments in the evolution of federalism in India.[9]
Government of India Act, 1935:
The Government of India Act, 1935, was a
significant milestone in the development of federalism in India. The Act
introduced the concept of a federal system of government, with a clear division
of powers between the Centre and the provinces. However, the Act also
maintained a degree of central control, with the Governor-General having the
power to override decisions made by the provincial governments. [10]
Independence and the Constitution:
With India's independence in 1947, the process
of nation-building began in earnest. The Constituent Assembly was tasked with
drafting a Constitution that would reflect the country's diverse needs and
interests, and federalism was a key component of this process. The Constitution
provided for a federal system of government, with a clear division of powers
between the Centre and the states. However, it also maintained a degree of
central control, particularly in areas such as defence and foreign policies.
In summary, federalism in India is an
important feature of the country's political system that ensures a balance of
power between the central government and the state governments. The
Constitution provides for a clear division of powers, and the judiciary acts as
a watchdog to prevent any overreach by either the central or state governments.
[11]
Functioning Of Federalism In Canada And India :-
In more than 150 years of Canadian
federalism's operation, three dominant patterns have emerged: colonial,
classical, and interdependence federalism. During the period of colonial
federalism, the federal authority ruled the provinces. The map of Canada's
government was redrawn, and additional provinces were added. In addition, there
is a preference for shared rule over self-rule, unity over diversity, and
autonomy. [12]
The federal government received the
right to regulate commerce, impose taxes, and nullify provincial laws that were
likely to conflict with federal law. Linguistic tension between English and
French, the economic crisis caused by declining imports from colonies, the
judicial role of the Crown Court, and the prospect of an attack from the south
gave rise to a tendency towards centralization. [13]
John Macdonald, Canada's first prime
minister (1867- 1873 and 1878-1891), utilized the reservation and disallowance
powers to enhance the federal government. The federal government abandoned
policies such as disallowance, thereby strengthening the federal government,
and provinces stepped into new areas such as income tax, minimum wage,
transportation construction, and education[14].
The phase of interdependence federalism was characterized by increased
coherence and interdependence between the federal and provincial
administrations. Federalism's interdependence has been managed by increasing
federal expenditures and fostering intergovernmental relations. The federal
government provided provinces with conditional grants to expand social programs
such as hospital insurance, mothers allowance, and financial assistance for
disadvantaged groups. As interventionists, provinces such as Quebec contested
the conditional grant initiative. The legalization of cannabis and
international trade are two interdependent spheres. Although international
trade decisions fall under federal jurisdiction, federal and provincial
negotiators made trade agreements with the European Union side-by-side.
Provinces were also consulted during the United States-Mexico-Canada Trade
Agreement negotiations. In more than seven decades of its journey, Indian
federalism has also been marked by cooperation and competition between Union
and States. Various factors such as the role of the Supreme Courts, functioning
of political parties.
regional and national leadership,
emergence of new issues, and emergencies like wars and pandemics have
significantly affected the functioning of federalism. Indian federalism has
passed through many phases, which is presented in models like cooperative federalism,
bargaining federalism, and competitive federalism. he initial phase of Indian
federalism is called cooperative federalism by Granville Austin. In this phase,
given the single-party dominance at the center and states called Congress
System by Rajni Kothari and charismatic leaders like Nehru and Shastri, center
and states worked cooperatively.
Division of Powers:
The scheme of division of powers in the Indian
federation is present in the Seventh Schedule of the Constitution of India. The
constitution has three lists, Union, State, and Concurrent, for dividing the
powers between the center and the states. There are 100 subjects on the Union
list over which the central government has exclusive authority. The State list
contains 61 topics. Initially, the Concurrent list included 47 subjects over
which both the federal and state governments can enact laws. The Concurrent
list has been enlarged to 52 subjects, with the 42nd Amendment of 1976
transferring five subjects from the State List to the Concurrent List. As in
most constitutions, when there is a conflict between the laws of the central
and state governments, the laws of the central government take precedence. The
residual powers are exercised by the Center.[15]
Dispute Settlement Mechanism:
In the Indian federation, the
judiciary and intergovernmental entities are two mechanisms for managing and
resolving disputes between the center and state or between the two states
amicably. The Supreme Court is the ultimate arbiter in center versus state and
state versus state disputes. The matters related to (i) the center and one or
more states (ii) center and state or
states vs a state or states (iii) one or more state vs one or more states fall
under the primary jurisdiction of the Supreme Court. These issues can be
promptly brought to the Supreme Court. Additionally, the Supreme Court has the
authority to interpret the Constitution. Its power of judicial review serves as
a safeguard against the possibility of central government encroachment on state
powers and authorities. The intergovernmental bodies prevent the escalation of
conflicts and attempt to manage them prior to their exploration or escalation
into disputes. Inter-State Council (Article 263) and National Development
Council introduce central and state administrations to a single platform to
discuss their problems and issues.[16]
Dual Government:
There is both a central government and state
governments, and each has its own governmental structures and ways of doing
things. They have their own lawmakers, government, and court system. The
President is the leader of India as a whole, and the Governor is the legal
leader of each state. If India's top court is the Supreme Court, then a state's
greatest court is its High Court. Indian Federation has two levels of
government. This is because the national government and state governments each
have their own set of political organizations. But unlike the US and
Switzerland, India only has one citizenship, and that is Indian citizenship. [17]
Bicameral Legislature:
The Indian government, which is called
Parliament, has two chambers. The Rajya Sabha is the top house, and the
Legislative Assembly, or Lok Sabha, is the lower house. In a two-chamber
government, the Lok Sabha (also called the "People's Council") speaks
for all the people in the country. On the other hand, the Rajya Sabha
(Councilof States) is the part of the national government that serves the
states. Members of the Rajya Sabha are chosen by the state governments, while
members of the Lok Sabha are chosen directly by the people. President chooses
twelve people for Rajya Sabha based on their achievements to the arts,
literature, sciences, and society states of the Indian Union (Uttar Pradesh)
has thirty-one seats in Rajya Sabha, while the seven small states only have one
seat each. In the US, all areas get the same number of Senate seats, no matter
how big or small they are.[18]
Canadian fiscal federalism – and
Canadian politics more generally – is the tension between economic interests in
the energy sector and the need to address climate change. Dinning argued that
the federal government’s current spending policies can only have a negative
effect on fiscal federalism in the long run, by further indebting the federal
government. He believes that there should be an emphasis on spending on
innovation and on energy, which must include all forms of energy – including
fossil fuels – and that Alberta must be an integral part of discussions in this
area. Dinning emphasized that current environmental issues will not be solved
by an ‘either or’ mentality, but by pairing various measures and resources.
Lévesque underlined the importance of using oil revenues to fund ‘green’
innovations. Bird questioned the lack of effective methods in interprovincial
transportation of energy. Dinning lamented that Alberta and Canada have not
better managed oil revenues. He also emphasized the need for a better
pan-Canadian energy corridor, to which Lévesque agreed. On the topic of energy
and the environment, the panellists generally agreed that a more
intergovernmental and collaborative framework is required.[19]
Conclusion:
Canadian federalism has evolved from
conflictual to interdependence phase via Cooperation and constructive
engagement phase. Indian federalism has evolved from cooperative federalism to
competitive federalism via bargaining federalism.
[1]
Mohd. Saleem
Hussain, Comparative Study Of Federalism
Between Canada And Changing Values Of Federalism In India,11 International
Journal of Creative Research Thoughts 138,139 (2023),available at https://ijcrt.org/papers/IJCRT2305022.pdfl ,last seen at 09/03/2024
[2] Garth Stevenson, federalism in Canada ,The Canadian
Encyclopedia,(07/02/2006), available at https://www.thecanadianencyclopedia.ca/en/article/federalism, last seen on 09/03/2024
[4]
Mohd. Saleem
Hussain, Comparative Study Of Federalism
Between Canada And Changing Values Of Federalism In India,11 International
Journal of Creative Research Thoughts 139,140 (2023), available at https://ijcrt.org/papers/IJCRT2305022.pdflast seen at
09/03/2024
[5] Supra 2
[6]
Federalism: Canada, Australia And India,
egyankosh, available at Unit-14.pdf (egyankosh.ac.in), last seen on 09/03/2024
[7]
Fiscal Federalism in Canada, Harisha B.N., available at https://shodhganga.inflibnet.ac.in:8443/jspui/bitstream/10603/85272/11/11_chapter%204.pdf ,last seen on 09/03/2024
[9]
Changing Dimensions of
Federalism in Indian Constitution with Special Reference to Legislative
Relations: A Critical Study, Jaiswal, Komal,https://shodhganga.inflibnet.ac.in:8443/jspui/bitstream/10603/509768/6/06_chapter%202.pdf, last seen on
09/03/2024
[12] Supra 1 at 10
[13] Supra 1 at 9
[14] Ibid at 137
[16] Supra at 6
[17] Ibid 167
[18] Arushi Sharma and Shivanshi Gupta, Federalism:
comparative study between India and Canada,10 human rights and constitutional studies
145,146(2023), available at Federalism:
comparative study between India and Canada | International Journal of Human
Rights and Constitutional Studies (inderscienceonline.com) last seen at 09/03/2024
[19]
Swapnil S. Kumare,
Comparative Study of Federalism in Two Democracies: India
& Canada,9(5)
IJARIIE-ISSN(O) 192,200 (2023).
Article Information
INDIAN AND CANADIAN FEDERALISM : A COMPARATIVE STUDY BY:- MISS. NIYATEE BHAGWAN CHIKNE
Authors: MISS. NIYATEE BHAGWAN CHIKNE
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/05
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.