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“FEDERALISM IN INDIA AND USA: A COMPARITIVE STUDY” AUTHORED
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“FEDERALISM IN INDIA AND USA: A COMPARITIVE STUDY”
AUTHORED BY - PRANALI
SUNIL GAWADE - LL.M, 1 ST YEAR
ABSTRACT:
The
purpose of the research article is to study and analyse the comparison between
federalism in India and USA.
Federalism, as a political system, divides power between the central government
and the subnational units. In both countries, federalism has evolved
over time and has been shaped by historical, political, and cultural factors. The
analysis describes the evolution of federalism in India as well as in USA. It also talks about the basic features
and elaborations of federalism in India and USA with relevant judicial pronouncements. Being the
largest democratic countries in the world, both United States and India are based on federalism in their
political structure. US became a Federal Republic State by promulgating its constitution in the year
1789; whereas India became a Socialist, Sovereign. Secular, Democratic republic by formally launching
its constitution only in the year 1950. The analysis further compares
the federal structures of India and the United
States, including the distribution of powers, the roles
and responsibilities of the central and state governments, rulemaking,
amendments, jurisdiction judicial
authority and the mechanisms for intergovernmental relations. The paper also
examines the similarities and differences between
the two federal
systems, highlighting the strengths and weaknesses of each. The US federalism is very strong
and more rigid as envisaged in their constitution by its leaders.
It is more federal than unitary in character. Whereas,
India is more unitary than federal and we can even say that it is a quasi-federal state.
Keywords: Federalism, India, USA, Quisi-federal, distribution of power.
INTRODUCTION
“Federalism should be a meeting
point of all groups.”
– Khil Raj Regmi1.
1
Across the world, federal regimes are full of inconsistencies. They are both
individually unique and yet respond
in a constantly changing world to similar
goals and expectations. This dynamic is demonstrated
by changes in two major federal structures, India and the USA, which have
attempted to deal with drastic
disparities within their population as they look for ways to bring democratic
ideals to life.2Federalism
is a form of government which has been progressively becoming more powerful throughout the globe. The concept of
Federalism is a form of government in which the national government’s regional, state, or local counterparts cooperate with the national
government on a national level. More broadly, we can say
Federalism means a division of power and decision-making control between the central and state governments,
with the central and state governments assigned power and authority with respective spheres. A
federal government is stated as a system of divided Sovereignty. In order to ensure that excessive power
does not come to the hands of one government, the federation should focus on a system
where there exists
mutual interdependence between
the two Governments. In contrast to a unitary
system, where a single central
government serves as the fundamental and supreme power,
a federal system
of government has two levels of government (national
and state).
Being
the largest democratic countries in the world, both United States and India are
based on federalism in their political structure. US became
a Federal Republic
State by promulgating its
2 Livingstone, federation and constitutional change
(1956), PP. 6-7
constitution
in the year 1789; whereas India became
a Socialist, Sovereign. Secular, Democratic republic
by formally launching its constitution only in the year 1950. Thereby both
countries had attained dominion
status in which a number of smaller states had got affiliated forming a union
with a strong central government that
came to be called as Federal Government in the US and Central Government in India. Thus both states
became Federal Republics. Despite many similarities between India and U.S.A, there are a lot of
differences as both the countries owe to different social, economic and political situations. Let’s understand
both the federal structures through different elaborations and key features.
CONCPT OF FEDERALISM
Federalism
is compound mode of two governments. It is a constitutional structure that
typically establishes two levels of
government with delegated powers and roles resulting from several social, economic,
cultural, and political factors. It is part of the power dispersion in establishing political
order, among other things, that is built-in
line with the principles of constitutional government. In basic terms,
federalism refers to "a division
of jurisdiction and authority between
at least two levels of government". This division usually occurs between two
or more constitutionally recognized levels of government; that is, levels of government separated
under the nation's constitution and with their own autonomous or semi-autonomous constitutional powers. Subscribing to the “coming
together" view of federalism, it is
pointed out and elaborated that the word "federalism has its roots in the
Latin Oedus, meaning "league,"
"treaty," or "compact. 3Moreover, each level of
government usually has its own particular jurisdiction:
that is, areas of public policy in which it, and only it, may exercise
authority or have the final
authority. For example, typically the national government will have final
authority over "national issues, such as national
defence, foreign policy,
and treaty-making, just to name a few. By contrast, the regional
governments will have power over more "regional" issues, though this
can vary widely from one federation to another.
Federalism is a dynamic government structure for the governance of a nation.
It links many independent, distinct, and disparate bodies or
administrative units to a single political union. It attempts to strike a balance between the forces fighting for
the concentration of power at the central point and the forces supporting the dispersal of power in a
variety of units. Federalism thus tries to reconcile unity with multiplicity, centralization with
decentralization, and nationalism with localism. The originality of the federal form of control is both
centralized and fragmented at the same time. Administration and regulation are centralized in some regions
along with decentralization in other regions. The main features of federalism are the constitutional government, the
allocation of powers, and the supremacy of
the state, the independence of the judiciary, the written constitution,
decentralization, and the actual separation
of power, while these concepts are not comprehensive, they do include core
elements of federalism
The federal constitution creates a dual structure, consisting of two levels of government —
1.
A Central
Government with jurisdiction over the entire
country in certain
regions, and state governments;
2.
Each of which exercises
jurisdiction within specified regional boundaries.
The
majority of the powers and duties of the government are split between the
Centre and the states. Thus, each level of government functions
within its assigned
sector. However, most governments do
3 Daniel J Elazer,
Althusius and Federalism as Grand Design,
Jerusalem: Centre for public affair.
1992, available on https://www.cambridge.org/core/product/identifier//type/BOOK
not
live in watertight compartments. They come into contact with each other at a
variety of points and, as a result,
a host of inter-governmental ties emerge in a federal country. The structure of
these relationships is not static. It
is dynamic, and in response to the centripetal and centrifugal forces that operate in the country, the equilibrium is
constantly new and thus, the topic of intergovernmental relations is of great
importance.4
FEDERALISM IN INDIA
1)
Historical background of federalism in India:
Federalism
has been part of the public discourse in India for many decades, before and
after independence in 1947, but it
has gained greater importance since the 1990s when thecountry's national polity saw the advent of the
coalition era.5Prior to the formation of the Constituent Assembly, Genesis of idea of federalism in India was first traced
in Simon Commission. "Indian Statutory
Commission" appointed in 1927. The Commission was meant for revision of
the Constitution for India. In its
report in 1930, the Commission recommended the evolution of India into a 'federation of self-governing units." The representatives of Princely States
declared during the First Round Table Conference (1930-32) that they would join an "All
India Federation with a
self-governing British India". 6The White Paper embodying the
report of Round Table Conference, in March 1933 was submitted
to Joint Select Committee of Parliament,
which preferred creation of "By Government of India Act, 1935, the background was ready for making India to become a
federation with 11 Governor's provinces and 650 Native states, who supposed to have fifty per cent seats in
Council of States. However, execution
of the instrument of accession was the prerequisite to form the Federation,
which could not become a reality7.
In Keshavananda Bharti vs State of
Kerela, 8the Supreme Court held that the federal character of the Constitution was its
basic feature. In State of Rajasthan vs.
Union of India 9 the
Supreme Court stated that, The Constitution is amphibian in sense that it can
move either on the federal or the unitary
plane. When action
is taken under
Article 356, the movement is on the unitary plane.
2)
Indian Quisi-Federal Structure:
India
is a federal system but with more tilt towards a unitary system of government.
Therefore it is sometimes considered
a quasi-federal system as it has features of both a federal and a unitary
system. Article 1 of the Indian Constitution states, ‘India, that is Bharat,
shall be a union of states10
5 Surendra Singh and Satish
Misra "Federalism in India: Time for a Relook?
6 Modern Indian History-
B L Grover
7 Introduction to the Constitution of India by Durga Das Basu, 19th edition
8 AIR 1973 SC 1461
9 AIR 1977 SC 1361
10 The
Constitution of India,
Art.1 , 1949
Following
are some federal features of India:
1.
Supremacy of the Constitution: Constitution is the supreme law of land in India.
A federal state derives its existence from the
Constitution.
2.
Bicameral
Legislature: The main feature of federalism is a bicameral
legislature. The Constitution of India also provides for a bicameral legislature i.e. Parliament with two houses
of the Lok Sabha and the Rajya Sabha.
3.
Dual
Government Polity: The Constitution of India has divided powers between the Central government and the state
governments through the 7th schedule. It contains three legislative
lists which enumerate subjects of
administration:
a.
Union List
b.
State List
c.
Concurrent List11
Both the governments have their separate powers and responsibilities.
4.
Written
Constitution:
The Indian Constitution is a written document containing 395 Articles and 12 schedules, and therefore, fulfils this basic
requirement of a federal government. The Indian Constitution is the most elaborate Constitution of the world.
5.
Rigid
Constitution: The
Indian Constitution is largely a rigid Constitution. All the provisions of the Constitution concerning
Union-State relations can be amended only by
the joint actions
of the State Legislatures and the Union
Parliament.
6.
Independent Judiciary: In India, the Constitution has
provided for a Supreme Court. The Supreme Court of India can declare
a law as unconstitutional, if it contravenes any provisions of the Constitution.
Following
are some unitary features of India
1.
Single
Constitution: In
India, there is only one Constitution. It is applicable to both the Union as a whole and the Stares. In a true
federation, there are separate constitutions for the union and the States
2.
Rajya
Sabha does not represent the States equality: In a true
federation, the upper house
of the legislature has equal representation from the constituting units or the States. But in Rajya Sabha, the States do not have equal representation. The populous States
have more representatives in the Rajya Sabha than the less populous States.
3.
Division of power is not equal: In a federation, power is divided
equally between the two governments. But in India, the Central
government has been given more powers and made stronger than the State governments.
4.
Existence
of States depends on the Centre: In India, the existence of a State or a federal unit depends upon the authority
of the Centre. The boundary of a State can be changed by created out of the
existing States.
5.
Constitution
is not strictly rigid: The Constitution of India can be amended by the Indian Parliament easily. On many subjects, the Parliament does
not need the approval of the State
legislatures to amend the Constitution. In a true federation, both the Union
and the State legislatures take part in the amendment of the Constitution with respect to all
matters.
11 The
Constitution of India, Art. 246, 7th schedule,
1949
6.
Proclamation
of emergency:
The Constitution of India has given emergency powers to the President. When an emergency is declared, the Union or
Central governments become all powerful
and the State governments come under the total control
of it. The State governments lose their autonomy.12
Former
Chief Justice Beg, in State of Rajasthan
v UOI, 1977 called the Constitution of India as ‘amphibian'. He said that "....If then our Constitution
creates a Central Government which is 'amphibian', in the sense that it can move either on the federal
or on the unitary plane,
according to the needs of the situation
and circumstances of a case...".13
Similarly
in S.R. Bommai v Union of India,14"pragmatic
federalism" was used. Quoting Justice Ahmadi,
"....It would thus seem that the Indian Constitution has, in it, not only
features of a pragmatic federalism
which, while distributing legislative powers and indicating the spheres of governmental powers of State and Central
Governments, is overlaid by strong unitary
features...
The
phrase 'semi-federal was used for
India in State of Haryana v. State of
Punjab,15 whereas
in
Shamsher Singh v. State of Punjab,16 the constitution was called 'more
unitary than federal."
Thus, India
is federal in nature but not as in very strict sense.
As mentioned above,
India possesses both federal
as well as unitary features therefore India is considered to be
a Quisi Federal nation.
FEDRALISM
IN USA
A “Federation”, from which federalism gets its name,
is when authority is divided
between a central
government and local governments. Thus, an easier definition for
Federalism is, the sharing or mixing
of power between a national government and the state governments. The United
States of America is a Federation
where power is shared between the 50 state governments and the national government in Washington, D.C. but
it was not always that way.
The
Evolution of U.S. Federalism: From its beginning in 1787 to the present
day, two major political theories
have developed around the concept of Federalism. One theory is called “Dual Federalism.” The other theory is known as “Cooperative Federalism.”
Dual Federalism: The beginning
of the United States marks the beginning
of Dual Federalism. Under
Dual Federalism, the Federal government and the state governments occupied
“separate spheres of influence.” The federal government had areas that it controlled and the state governments had areas that they control. The federal
government and state governments were co-equal entities. Article I, Section 8 of the United States Constitution listed a
number of things that the federal government
was empowered to do. The federal government could: tax, declare war, establish foreign policy, regulate interstate commerce, make copyright and patent laws,
establish post offices,
and coin money.
More of this will be discussed below.
Under this theory
of Dual Federalism, it was believed
that the federal government could only operate based on those items listed in
the U.S. Constitution. As a result
of this the states possessed
a large amount of “reserved” powers. The
13 (1977) 3 SCC 592
14 AIR
1994 SC 191
16 (1974) AIR 2192
United States
operated under a Dual Federalism model from 1787 until about 1937 when the federal
and state governments began to intersect, and sometimes conflict
with one another.17
Cooperative
Federalism: From about 1937 to the present, the United States has
operated under a Cooperative
Federalism model. Cooperative Federalism came about during the Great Depression, beginning in the late 1920 and
lasting through the 1930’s and early 1940’s, when so many Americans were struggling to make ends meet. “In Principle” under Cooperative Federalism the federal government and the state governments work
collectively with one another to address common
problems. During the Presidency of Franklin D. Roosevelt (1933- 1945), the
federal government began to get more
involved in the day-to-day lives of U.S. citizens. During the FDR Administration a federal jobs program was
established to get Americans back to work; as was an expansive social safety net to provide for people who fell on
hard times, because many Americans had
fallen on hard times. With a more expansive role for the federal government,
there became a need for states and
national authorities to work more in tandem with one another. However, with the post-WWII phase of the Civil Rights
movement on the horizon, the shift to Cooperative Federalism set the stage for conflict as black activists
pressured the federal government to enforce
racial justice initiatives in states, both North and South that sought
to maintain the structures of segregation and white supremacy.
How
Federalism Works: Let’s briefly define “Delegated Powers,” “Reserved
Powers,” “Concurrent Powers” and
“Implied Powers” which explain where authority derives in a federalist system of
government.
Delegated
Powers are those powers specifically assigned to the Federal Government by the United
States Constitution. The U.S. Constitution lists very specific powers
that the Federal Government enjoys.
The Federal Government can declare war, maintain armed forces, regulate interstate commerce, admit new states, establish
post offices, coin money, establish foreign policy, and make all laws necessary and proper carryout out its
delegated powers.
Reserved Powers are powers not
specifically delegated to the Federal Government by the U.S. Constitution, but which are “reserved’ for
the State governments. Powers reserved to the states include the power
to: establish schools,
establish local governments, regulate businesses within the state, make marriage laws, and provide
for public safety.
States can assume all powers
not delegated to the national government or prohibited
to the states. States also have “police powers.” Police powers have nothing to do with law-enforcement or a specific
police department. Police Powers means the states can regulate for the
health, safety and welfare
of its citizens.
Concurrent Powers are powers that the
Federal Government and the state governments have in common or share simultaneously. These are things that both the
Federal Government and the state governments
can do. Both the Federal Government and the state governments can: maintain law and order, tax, borrow money,
charter banks, establish courts, and provide
for the public welfare.
Implied Powers are powers that are not
specifically delegated in the U.S. Constitution, but are understood to be necessary and allowed. The “Necessary and
Proper clause” also known as the “Elastic
Clause,” from Article I, Section 8 of the U.S. Constitution gives Congress the
power to make all laws it deems
necessary to make the government work well. This clause constitutionally authorizes the vast majority of U.S. laws created by the U.S.
Congress.
There
are six ways in which Federalism is specifically identified in the U.S.
Constitution and they are:
·
The
Commerce Clause, Article I, Section 818
·
The Elastic
Clause, also known as, the
Necessary and Proper
Clause, Article 1, Section 819
·
The Supremacy Clause, Article VI20
·
The Admission
of New States, Article IV, Section 321
·
A guarantee of a “Republican form of government”, Article IV, Section
422
·
The Tenth Amendment23
Making a Federal
Case
There
are a few United States Supreme Court cases that reveal and strengthen the
authority of the federal government
over the state governments. In the cases listed below the individual state legislatures had passed laws that would
affect the “citizens” and “residents”
of their states. Sometimes
these laws intruded on the civil rights or civil liberties of their citizens.
Alternatively, these laws attempted
to overlap into an area that the Constitution specified as federal and not
state jurisdiction. When this happened
the U.S. Supreme
Court decided that those laws were unconstitutional. In these cases, the
Supreme Court asserts that the state had overstepped its authority and thus had entered
into a sphere that is designated to the federal
government. Although there
are dozens of such cases, below are a few to help you get started in understanding the distinct and sometimes conflicting spheres of
influence that the federal government and state governments occupy.
One early case was McCulloch
v Maryland (1819)24. In
this case the U.S. Supreme
Court said that the
Elastic Clause gave the Federal Government the implicit authority to create
banks. Moreover, the court also
stated in this case that the “Supremacy Clause” implicitly exempted the Federal Government from state taxes.
In
Griswold v Connecticut (1965)25the
Supreme Court said that states cannot prohibit the use of contraception which violates its residents’ rights
to privacy protected under the U.S. Constitution.
In Roe v Wade (1973) the United States
Supreme Court found that states
cannot impose strict
limits on abortion. The
Supreme Court of the United States (SCOTUS) declared a Texas state law that imposed such strict limits to be
unconstitutional. The Court stated that the Due Process Clause of the Fourteenth Amendment provided for a right to privacy. Roe allowed a woman the right to have a safe
abortion without excessive government restrictions.
Thus, from all the above mentioned
information we can say that, USA is federal state in strict
sense.
18 PRENTICE & J. EGAN, THE COMMERCE
CLAUSE OF THE FEDERAL CONSTITUTION 14 (1898).
20 Article VI, Paragraph 2, The US constitution
21 Section 3 New States
and Federal Property,
The US constitution
22 ArtIV.S4.2
24 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)
25 Griswold v. Connecticut, 338 U.S. 479 (1965)
A COMPARITIVE ANALYSIS
OF FEDRALISM IN INDIA AND USA
Across
the world, federal regimes are full of inconsistencies. They both i.e. USA and
India are individually unique and yet respond in a constantly changing world to similar goals and expectations. This dynamic is demonstrated
by changes in two major federal structures, India and the USA, which have attempted
to deal with drastic disparities within their population as they look for
ways to bring democratic ideals to life. US became a Federal Republic State by
promulgating its constitution in the year 1789; whereas
India became a Socialist, Sovereign. Secular, Democratic republic by formally launching its
constitution only in the year 1950. Thereby both countries had attained
dominion status in which a number of smaller states had got affiliated forming
a union with a
strong central government that came to be called as Federal Government in the
US and Central Government in India.
Thus both states became Federal Republics. Despite many similarities between
India and U.S.A, there are a lot of differences as both the countries owe to different social, economic and political situations. The following is a comparative study of the workings
of federalism in both nations.26
1)
Central Government:
General
regulation of major foreign policy issues and the operation of pacific or
aggressive international relations in
a federation is supreme. In the US Constitution, for example, the ultimate power of defence and diplomacy is
enforced by the central government under Article 1, Section 10 Clause 3 of the US Constitution. 27While
the Indian Constitution in its Seventh Schedule contains
entries in the list of powers bestowed
on the Federal Government concerning diplomacy and security, war and peace and the Treaty,
pilgrimages from outside the world, piracies,
and crimes perpetrated by air or by high sea and violations of international law. Section 1 of Schedule VII28 confers
powers on the Union Government which are unique to the Union and the States
cannot interfere with the exercise
of those powers.
Besides, Article 53(2)29 refers to the
President with the Supreme Command of the Union Defence Forces. Article 352,
353, and 355 also discuss the strength of the Union in times of national
emergency. Article 51, which applies to the promotion of
international peace and security, is also laid down in the Concept of State Policy of the Directive. The
nature of these powers under the Indian Constitution is more nuanced than under the American Constitution.
2)
Amendments:
This
is the firmest and most accurate criterion for defining the federal structure
of the state by dissecting the text
of every constitution. In the United States Article 530 of the
United States Constitution, it can be
achieved by Congress by asking 2/3 of both chambers to introduce amendments. The implementation of the
legislature of 2/3 of many states can also recommend it. At least
3/4 of certain states must be accepted
to be ratified. There is also a certain provision, however, to the effect that no amendment
shall affect the first and fourth clauses of the ninth
26 Dr.
Durga Das Basu – Comparative Constitutional law, 2nd edition Revised
2008
27 Article 1, Section 10(3), US Constitution
28 The
Constitution of India,
7th schedule, 1949
29 The
Constitution of India,
Art.53(2) , 1949
section of the first article and that no State shall be deprived
of the same suffrage in the Senate.
The Indian Constitution provides for the power and process to amend
Article 4, Schedule VI and, in particular, Article 368 of the Constitution. In all instances, the right to enact amendments is bestowed on the Union. For all amendments, there is no need
for ratification by the States. However,
Article 368(2) distinguishes certain types of amendments which, in essence,
require ratification by at least half of the States.
The amendments requiring such ratification by at least
half of the States shall be made according to points (a) to (e) of
Article 368(2). It is also clear that approval
by not less than half of the States is needed if reforms have a certain
effect on the federal
structure.
3)
Centre and state working:
Article
1 Section 8 31of the U.S. Constitution provides for 18 subjects to
be legislated and limited by the middle.
The majority of the authority
is with the Nations. And the residual
power is with the states. In
India, exhaustive lists are drawn up which cover the different areas of the Centre
and the states. No question
of residual power ever arose.
But then, if there is no entry in any of the three lists, the Centre shall
have the authority to do so. Thus, the residual power is with the Centre.
4)
Union and Secessions:
As
per Article 4 of Section 3 of the U.S Constitution32, it is clear
that, without agreement between
the legislatures of the States
concerned and the Congress, no new State shall be created or established beyond the competence of
any other State. Thus, it can be inferred that no State will withdraw from the U.S. Constitution from the union.
5)
Rule Making:
The Connecticut compromise, where the American founders
agreed to proportionate representation in the lower house of unequal states and equal
representation of unequal states (2 senators
per state) in the upper house was also regarded
by Americans as an integral
measure of federalism. The
United States is bicameral, as the two houses are similar in law matters: no legislation can be passed
without the agreement of the two houses on the
same text.
In India, mutual
participation in federal
rulemaking is assured
by an equitable representation of equitable
units in the bicameral structure. Under Schedule IV of the Constitution, seats
are to be assigned
to the States in the Council of States in the Parliament. Other than that, the President of the Council of States has nominated twelve members. This
brings Rajya Sabha’s total strength to 250.33
6)
Jurisdiction:
The
Supreme Court of the United States has authority over the country as a whole
but only through federal law. The
States have their constitutions and their own rules and their own Supreme
Court. In India, there is only
one system of courts with
the Supreme Court at the top
31 Article 1, Section 8, US Constitution
32 Article 4, Section 3, US Constitution
33 Constitution of India V N Shukla’s
12th edition
and the High courts of the different
states at the lower level. Both have the right to adjudicate federal as well as state legislation.34
7)
Judicial Authority:
In the U.S., there is this principle of judicial review
where the Supreme
Court has the authority to resolve a central-state dispute.
McCulloch v. Maryland35 is the classic example of a central state dispute where judicial review has been used. According
to Article 131, the Supreme
Court of India has the
initial authority to address a central state dispute. Moreover, judicial review
is a fundamental function of the Indian Constitution, as laid down in Article
13(2), read at 14, 32, and
226.
SIMILARITIES BETWEEN FEDRALISM OF INDIA AND USA
1)
Written constitution:
Both US and India have a written constitution based on which the federal
political structure has been
set up and both federal governments are functioning. Both constitutions have
provisions for amending the
constitution to meet the growing socio, political and economic needs and demands
of their respective countries.
2)
Bill of Rights and Fundamental
Rights:
The
US constitution has ensured the fundamental rights of its citizens like right
to equality. freedom, right against
exploitation, freedom of religion, cultural and educational rights, right to property, and right to constitutional remedies
etc. through The Bill of Rights",. They became part and parcel of the US constitution
through first ten amendments that were carried out and adopted into the US constitution.36The Indian
constitution has guaranteed the fundamental rights of the
people through articles 14 to
34 in Part III.
3)
Supremacy of the Federal or Union Government:
Both countries
have federal governments at the centre
in which various
states have acceded
to. In the US as many as 50
states have joined the federal government and in the Indian Union as many as 29 states and 8 Union territories
have acceded to. Both in US and India, states which have acceded to the Federal set up have no unilateral power to
secede from the Federal Government or
the Union Government. While Federal Government or the Union Government as well as the states are empowered to
enact laws on a particular subject,(known as concurrent powers), the law enacted by the Federal
or Union Government will have overriding effect over the law enacted by the states on the
same subject. Thus Federal or Union Government is supreme in the present federal
structure.
4)
Division of Labour and Separation of Powers:
Adhering to Montesquieu's theory of division
of labour and separation of powers, both US and Indian constitutions have three basic divisions with regard to division of labour and power in
34 Dr.
Durga Das Basu – Comparative Feralism, 2nd edition
Revised 2008
35 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)
36 American Constitutional law by stephens, 3rd edition
their
federal set up known as executive, legislature and judiciary with clear cut
Separation of Powers' Each division
has been entrusted with a separate power. The executive governs the country,
the legislature enacts
laws and the judiciary administers justice. President of US is the chief
executive head of US, whereas
the Union cabinet
headed by the Prime Minister
is the real chief
executive body in India. Both US and India have a bicameral legislature. US
legislature has an upper and lower house known as the House
of Senate and the House of Representatives respectively and the Indian Parliament has Lok Sabha and Rajya Sabha as its Lower and Upper
house respectively. Both US and India have a well-organized judiciary,
having the Supreme Court or the
Federal Court as the apex court and a number of other courts in various states
to administer original and appellate jurisdictions.37
5)
Powers of Checks
and Balances:
Though there exists a clear cut division of labour known
as separation of powers into executive, legislature and judiciary in both
countries, still there is a threat. To democracy. A strong and dynamic leadership at the helm of powers
as the executive and acting with unlimited powers may lead to arbitrariness. After all power corrupts power;
absolute power corrupts absolutely; in the result democracy
may become a laughing stock
and virtually unworkable. Hence, in order
to prevent unwieldy growth of any one of these three divisions. A
fantastic mechanism known as powers
of 'checks and balances'
has been maintained in both countries. In other words,
each division of power is somehow or other
checked and controlled by other divisions
of power.
In the US, the President as the chief executive power appoints his members of 'Kitchen Cabinet'
and he is the Supreme
Commander-in-Chief of Army. Navy and the Air Force. He appoints the Chief Justice
of the Supreme Court of the US. He enters into treaties
with other countries.Laws enacted by both houses may be subjected to the power of
Judicial Review and can be declared null
and void by the judiciary. The President can be impeached and removed from
power on the motion moved by the
House of Senate in the presence of the Chief Justice of the Supreme Court of
the US.38
Similarly
in India, the Prime Minister and his cabinet can be removed from power by a successful no confidence motion passed by
both houses of parliament. The important policy decisions taken by the cabinet
headed by the Prime Minister, if necessary has to be enacted into laws only with the requisite majority
of the parliament. The laws enacted by the parliament are subject to the judicial
review of the Supreme Court of India.
The Chief Justice
and other Judges
of the Supreme Court are appointed by the President as recommended by
the cabinet and the Prime Minister.39
Thus the powers of checks and balances have been the effective mechanism
both in the US and in India in
safeguarding the democracy
in both countries.
DIFFERENCE BETWEEN FEDRALISM OF INDIA AND USA:
The differences that exist between
the federalisms of US and India
are unique. These differences have been wantonly
created by the architects of the Indian
constitution. The US federalism is very strong
and
37 Comparative constitutional law by Hon'ble Mr. Justice BP Banerjee and Prof. BM Gandhi
2 edition
38 American constitution law by Otis H. Stephens, Jr. 5th edition
more rigid as envisaged in their constitution by its leaders.
It is more federal than unitary
in character. Whereas,
India is more unitary than federal
and we can even say that it
is a quasi-federal state.
1)
The Constitution of US is very rigid than the Indian Constitution:
The
constitution of US is very brief and rigid running into only a few pages,
whereas the constitution of India is very voluminous containing as many as XXII parts, 395 articles and ten schedules. since the US constitution is
very rigid, the provisions meant for amending the constitution are also very rigid and more formal. the Indian
constitution which came into force in
the year 1950, has so far been amended 94 times. Therefore, it is easy to amend
the Indian constitution, since it
involves four different types of procedures which are comparatively easy than the amending procedure of the US
constitution. For example, recently, the salaries and allowances of the Indian MPs have been hiked through a voice
vote of the members of the Indian Parliament.
In
the US, though there is a Federal Constitution, all the states affiliated with
the Federal Government, owing their
allegiance to the Federal Constitution, have their own constitutions to regulate their own governance. In
India, all the states affiliated with the Indian Union owe their allegiance only to the Indian constitution and do not have their own constitution; however, each state
is empowered to enact its own laws included in the state
as well as in the concurrent list of the constitution.40
2)
While US has the Presidential form of Government, India has the Parliamentary form of Government:
In
the US, the President is the head of the state and so his government is
invariably mentioned as the Presidential form of government or democracy; In India,
the President is only a nominal head or titular
sovereign power;(de jure sovereign), whereas
the Prime Minister
and his cabinet
is the de facto or popular sovereign in whom the real power exists. In
the US, the President is popularly elected,
besides chosen through an electoral college.
However, nominating a candidate for contesting the Presidential election
by a political party in the US is a cumbersome process.
This process is comparatively simpler
than the Indian
system of forming
the cabinet and electing the Prime Minister
from a party which enjoys
a majority of elected
members of the Lok Sabha. While the US follows the bi-party system, India has a multiparty system and a complicated
process of election. While the US President Holds power for a period of 4 years, while the Indian Prime Minister holds
power for five years as long as his political
party enjoys majority
in the Lok Sabha. However,
the US President irrespective of his
affiliation with a political party, Republican or Democrat and irrespective of
his party's success or failure in the
elections for the House of Representatives or the House of Senate, holds power for his full tenure.
A person
in the US can hold the post of President
only for two terms, whereas,
in India there is no such restriction to hold the post of
a Prime Minister or President. For example, Nehru was the Prime Minister of India between
1947 and 1964 for a period of 17 years.
The Indian cabinet and the Prime Minister are collectively
and directly responsible and answerable
to the parliament and indirectly to the people, whereas, the US President has constitutional obligations and duties
and of course answerable to the people.
For the dereliction of duty and blunder
committed by a cabinet minister
in India, the Prime Minister
and his entire
cabinet colleagues are liable, responsible and answerable, because
they have collective responsibilities.41
3)
Differences
between the legislatures of US and India:
In
India, the lower house or the Lok Sabha is more powerful and its members are
directly elected by the people
and the members
of the Upper house or Rajya Sabha are indirectly elected every two
years. In the US, the House of Representatives are elected on the basis of the population strength of a state, but
irrespective of the size of the state or its population, each state in the US has only two senate members,
totalling 100 members
in all in the US. While the Lok Sabha or the lower house is more powerful in India, the House of Senate or the upper house is more
powerful in the US.
4)
Differences in the judicial system between US and India:
While
the US has an advanced judicial system, India has a rapidly developing judicial
system. An accused or a witness in
the US can depose from the place where he is imprisoned. Thereby avoiding unnecessary travel all the way
from Chicago or Los Angeles to New York using the advanced technology. Such facilities are yet to develop in
India. While a Judge in the US can hold
his post for life as long as he enjoys his good health, in India it is slightly
different. A District judge unless
elevated retires at the age of 58, a High Court and a Supreme court Judge retires
at the age of 65.
5)
Citizenship:
The
Indian Constitution recognizes single citizenship. On the other hand, the
United States Constitution allows for double citizenship that can be a US resident of two countries, the United States
and another.42
CONCLUSION
Federalism is compound mode of two governments. It is a constitutional structure that typically establishes two levels of government
with delegated powers and roles resulting from several social, economic, cultural, and political factors.
It is part of the power dispersion in establishing political order, among other things,
that is built-in line with the principles of constitutional government. Across the world, federal
regimes are full of inconsistencies. They both i.e. USA and India are individually unique and yet respond in a
constantly changing world to similar goals and expectations. This dynamic is demonstrated by changes in two major federal structures, India and the USA, which have attempted to deal with drastic disparities within their population as they look for ways to
bring democratic ideals to life. US became a Federal Republic State by promulgating its constitution in the year
1789; whereas India became a Socialist,
Sovereign. Secular, Democratic republic by formally launching its constitution
only in the year 1950. Thereby both
countries had attained dominion status in which a number of smaller
states had got affiliated forming
a union with a strong
central government that came to be
called as Federal Government in the US and Central Government in India. Thus
both states became Federal
Republics. Despite many similarities between India and U.S.A, there are a lot of differences as both the countries owe
to different social, economic and political situations. The following is a comparative
study of the workings of
federalism in both nations.
41 Comparative constitutional law by Hon'ble Mr. Justice BP Banerjee and Prof. BM Gandhi 2 edition
The
federalism structure of the United States and India is somewhat
different, but both structures have performed effectively and
preserved national independence with a different history and challenges both the United
States and the Indian federalism are very popular
despite their limitations.
BIBLIOGRAPHY
Books:
Ø
Dr. Durga Das Basu – Comparative Constitutional law, 2nd edition
Revised 2008
Ø
Dr. Durga Das Basu – Comparative Federalism, 2 nd edition
Revised 2008
Ø
Federal
India by Colonel KN Haksar
and K.M. Panikkar, Amol publications
Ø
American constitutional law by Stephens 3" edition
Ø
American constitution law by Otis H.
Stephens, Jr. 5th edition
Articles:
Ø
Prakash Karat "Federalism and the
political system in India"
Ø
A comparative study of federalism in India
and USA by Karthik Rajagopal.
Websites:
Article Information
“FEDERALISM IN INDIA AND USA: A COMPARITIVE STUDY” AUTHORED
Authors: PRANALI SUNIL GAWADE
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/12
- Issue 7
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International Journal for Legal Research and Analysis
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