Name of the Student: Apoorva Kudari

Registration Number: 06

Programme: BA, LLB(Hons)

Semester: I sem

Course Name: Political science II

Course Code: 5BAL103

Component: Research paper

Submitted to: Prof. Tabasum Sultana

 Federalism in U.S.A and India

ABSTRACT

This research paper predominately discusses Federalism, the position and distinctive
features of federal structure in India and USA. Further, it collates the establishment and
functioning of federalism in India and USA. The framers of the Indian Constitution
extensively worked on framing the Constitution to suit the newly independent country.
In doing so various principles and ideas were imitated from different countries. An
evolutionary change was taken for revolutionary break from the established system of
the Britishers. One of which is Federalism, borrowed from the US Constitution, the
outstanding principle of checks and balances where one state is administered by two
levels of Government, both freestanding from each other. Through this paper the
readers will brush off their existing knowledge on Federal structure and have a better
perspective into how one principle i.e., federalism has taken different forms in India
and USA and its contribution to a smooth functioning Indian Constitution in the
contemporary world.

METHODOLOGY

In this research I will be inclining towards the Doctrinal method whereby my paper will
be substantiated with articles and previous findings of various scholars for a better
outcome.

INTRODUCTION

There are approximately 25 federal nations in the world currently, with a combined
population of 40% of the global population. The United States and India are two of the
most important federal countries in the world; the former is the oldest known
democracy, while the latter is the world's largest democratic country; both the US and
India are founded on federalism in their political structures. By establishing its
constitution in 1789, the US became a Federal Republic State, whereby India only
became a Socialist, Sovereign, Secular, Democratic Republic by officially launching
its constitution in 1950. Both countries gained dominion status as a result of numerous
smaller states joining together to form a union with a central authority that became to
be known as the Federal Government in the United States and the Central Government
in India. As a result, both states were proclaimed to be a Federal Republics.

India and United States are the largest democratic countries in the world with federalism
as one of the core founding ideas in the political structure. India inculcated the essence
of federalism in its original draft that came into force in 1950 and became a Sovereign,
Secular, Democratic Republic. Similarly, United States, included the idea and declared
itself a Federal Republic State in 1789. The origin of Federalism finds a common path
in the history of both Nations by the act of smaller states coming together and forming
a single nation with a strong union Government, this very idea is known as the Central-
State relationship in India and Federal Government in the U.S, thereby making both the
countries an epitom of Federal Republics in the world.

DEFINITION AND MEANING

K.C Wheare defines Federalism as "The way through which the separation of powers
such that the national and regional governments are individually co-ordinated but
independent within a given sphere.1"

Federalism as a form of government has increasingly become more influential

throughout the world. Federalism can be seen as a political system in which a society
is divided into two tiers of government, each with its own set of powers and
responsibilities based on political, economic, cultural, and social aspects. It is one
component of power distribution, amongst many, in the construction of a political order
that adheres to constitutional standards. The ideas of Federalism are founded on and as
a result of a blend of self-rule and shared rule. In its broadest definition, federalism
includes the permanent but limited union of individuals, groups, and politics in order to
allow for the energetic pursuit of common goals while maintaining the integrity of all
parties. Federalism is a political principle that deals with the constitutional distribution
of power so that the constituent components of a federal arrangement having a right to
participate in policymaking and administration procedures while the union
government's functions are carried out in a manner that preserves their individual
integrity.2

In the current situation, federal government is the most widely growing and powerful
principles of the Government and has rather been imbedded into the new constitutions
of the world. Hence, a constitutional contract sustains the federal government. A
constitution that establishes a distribution of powers between the federal government
and the states that cannot be changed at the whims and caprice of the Government
which in return generates checks and balances in the system, and at the same time
separation of power is created amongst the three functionaries of the Government.

FEDERALISM IN THE U.S

The U.S. is an epitome of federal system. The union of United States was established
through centralizing process. Although Federalism in India is a great debated topic,
U.S strictly follows the rule of Federalism in its true sense The American Federation
originally consisted of thirteen states and currently comprising of fifty states that

1 Federal Government 11, (London: Oxford University Press, 1963) K.C. Wheare

2 A Comparative Analysis of the Indian and American Federalism, Ideas and Innovations in Technology Publication International
Journal of Advance Research by Raghav Dhoot (2018)
altogether makes the United States.3 The Union of United States was created through
the process where the thirteen sovereign states gave up their certain powers, which were
minimal as possible, thereby the Federal Government has has specified and delegated
powers and whatever remaining powers are there is vested upon the State, thereby
giving a massive amount of authority to the state.

The thirteen English colonies signed the American Declaration of Independence in

1776 after signing a peace treaty with England and ratified it later in the year 1781, the
Articles of Confederation, which they lived under for seven years. The American
Constitution was passed in 1788 after being written in 1787 to establish a perfect
Union. The Bill of Rights was added two years later.4 The principle of separation of
powers is more prevalent in the American constitution than in any other countries.

DIVISION IN POWER

Since its establishment in 1787, federalism in the United States has significantly
changed. Political theory has been dominated by two types of federalism. Firstly, dual
federalism which refers to the equal status of both the federal government and state
governments. Cooperative federalism is the second theory of federalism, in which the
federal, the state, and local governments engage together to address problems. The
central government has supremacy over the states, As per the theory of cooperative
federalism, the central government has supremacy over the states.

The US Constitution has divided the subjects into three lists, respectively containing of
what the congress can do, a list of what the congress cannot do and the last list which
enumerates a list of what the states cannot do.

Article I, Section 8 of the US Constitution lays down 18 powers of the Congress, which
amongst others consists of general welfare of US, common defence, declaration of war,
foreign trade, inter state commerce, power to impose and collect taxes, promotion of
science and art, constitution of tribunal inferior to Supreme Court and making all laws
required for executionThe other two categories outline the authorities that the Centre
and States are prohibited from exercising.

The Federal Government is prohibited from curtailing the writ of habeas corpus,
establishing ex-post facto laws, granting titles of nobility, making laws effecting
people's religious beliefs in any manner, and limiting freedom of speech and press under
Section 9 of Article I. The States are prohibited from forming an alliance or signing
treaties with other powers, minting money and maintaining armies, among other things.
The tenth Amendment declares that the people have power over the powers not

3 Constitution of USA by Mark Tushnet.

4 Cass R. Sunstein & Mark V. Tushnet, Constitutional Law, third edition 1996, 1-2.
delegated to the Centre and forbidden to the states. These are largely about people's
rights that cannot be infringed by the government.

SEPERATION OF POWERS

One of the pivotal features of the American Constitution is the principle of Seperation
of Powers. There is no other constitution that so vividly demarcates the powers between
the three organs of the Government, the Constitution clearly states that all legislative,
executive and judicial powers are respectively vested with the congress, the President
and the Supreme court. The theory of Separtaion of Powers by Montesquieu played a
very influential role among the fathers of the American Constitution in the process of
making three organs as separate as possible, they have established an independent status
for each organ.

For instance, the President has a fixed term and is not accountable to Congress. Since
the President cannot dissolve the Congress, it has been separated from him. Similarly,
the federal judiciary is separate from both the executive and legislative branches of
government. No Supreme Court judge can be impeached without undergoing a lengthy
and cumbersome impeachment process. Thus, Finer states, “American Constitution
was conscioulsy and elaborately made on the Separation of Powers and is today the
most important polity in the world which operates upon that principle.”5

CHECKS AND BALANCES

The American system of government is an elaborate system of checks and balance. The
authority of government was further weakened to secure utmost liberty to the people
through the introduction of checks and balances, so that one organ of the government
would act as a watch dog on other organs. The framers feared that if an organ was left
to its own ends, it would deteriorate and abuse its power, becoming despotic. As a
result, the American Constitution has founded a well-established system of internal
checks and balances. The best illustration of checks and balances is the president's
power to veto any bills passed by the Congress, but the veto can be overridden by a
two-thirds vote in Congress. The House of Representatives has sole authority over
impeachment, while the Senate has full authority over all impeachment proceedings.
The executive is controlled by the senate in matters related to the appointment of high
offices. Again, both the President and congress have certain checks on judiciary and
the judiciary in return exercises its power upon the executive and legislative through
the process of judicial review.

According to Professor Ogg, ‘No feature of American Government is more

characteristic than the Sepration of Powers combined with Checks and Balances.’6

5 Finer, H., The Theory and practice of modern government at p 101

6 Ogg, F.A, Essentials of American Government
FEDERALISM IN INDIA

BREIF HISTORY OF FEDERALISM IN INDIA

The framers of Indian Constitution borrowed the idea of Federalism from U.S. India
became a federation after being freed from the British Raj's control. The Indian Union
was formed when several princely states that were separated and ruled, came together
as one. Post-Independence, the Centre and Provinces became the Union and States, with
evident power distinctions enlisted in three lists: The Union, the States,
and the Concurrent Lists.

The origin of federalism in India can be traced back to the 1927 Simon Commission,
often known as the "Indian Statutory Commission." The purpose of the Commission
was to revise India's Constitution. The Commission in its 1930 report suggested that
India's evolution to a ‘Federation of self-governing units.’ Despite the fact that the
federal elements of the Government of India Act 1935 were never implemented, the
Act favoured a federal system of government. The Indian Independence Act of 1947
provided even more momentum and gave the push towards a federal Government. As
a result, when the Constituent Assembly drafted the federal Constitution, it opted to
frame it.

Due to the existing economic, social and political situations, the framers of the
Constitution had foreseen the necessity for a significant need of strong centre. Dr.
B.R Ambedkar during the Constituent Assembly stated that 'The Constitution of India
is a federal Constitution in the context that it has been created what may be termed as
the Dual Polity, comprising of the Union at centre and States at the periphery, each
possessing sovereign powers to exercise in the area delegated to them by the
Constitution of India.’

Dr. B.R. Ambedkar used the term "union" to emphasise that the states had no right to
separate from the Union and form their own countries. He regarded this union as a
federation and referred to it as a flexible federation, emphasizing that it was less rigid
than the American Constitution.

The Supreme Court in the landmark case of Keshavananda Bharti v State of Kerela7
held that the Constitution's federal character was the basic structure.

QUASI FEDERALISM

India has a federal government, but it leans more toward a unitary government. Because
it has elements of both a federal and a unitary system, it is commonly referred to as a
quasi-federal system. The Constitution in Article 1 states ‘India, that is Bharat, shall be
a union of states.' The mention of term "federation" is excluded from the constitution.

7 1973 4 SCC; AIR 1973 SC 1461

The Government of India Act of 1919, which divided powers between the central and
provincial legislatures, introduced elements of federalism into modern India.

The Supreme Court in West Bengal v Union of India 8 held that "The Indian Union
isn't a true federation but quasi federation," For instance, in India, the Union's complete
legislative power is vested in the Parliament, which is composed of the President and
two Houses. This demonstrates that the executive is actively associated with the
legislative.

The framers of Indian Constitution visioned a structure based on federal form

of Government in India. However, the question of whether India is a federation in
its proper sense is still a debated aspect amongst many others. Several scholars still
refer to India having a quasi-federal government. In his authoritative study on the
subject of federalism9, Professor Wheare stated that India only possessed certain
parts of the characteristics of a classical federation. However he considers India as
an "unitary state with subordinate federal features.10" Others, like Jennings, looked
at India as "a federation with significant centralising characteristics, 11" while the
Sarkaria Commission called India "unitary in the classical sense.12" However, the
consensus appears to be in favour of a quasi-federal constitution for India, rather than
a strictly unitary or classical federal one.

FEATURES OF INDIAN FEDERALISM

A Federal Constitution divides legislative powers between the federal government and
the states, each of which is absolute and sovereign in its own field. This distribution is
based on the principle of granting powers to the union in areas of national significance
or where uniform laws across the union is sought, and granting powers to the states in
matters concerning the states or are primarily of local interest.13 This distribution
usually takes one of the two shapes below, as in the case of the United States, either
enumerated powers are granted to the union and residuary powers are retained by the
states, or in the case of Canada, enumerated powers are given to the states and residuary
powers are provided to the union.

The following are some of the characteristics of a standard federal constitution:

(1) Distribution of Powers- Federalism is the division of the state's powers among a
number of co-ordinate institutions, each of which has its origins in and is governed by

8 AIR 1963 SC 1241, 1964 SCR (1) 371

9 KC Wheare, Federal Government, 4th edition of 1963
10 KC Wheare, India’s New Constitution Analyzed, ALL LJ of 1950 pg. 22
11 Sir Ivor Jennings, Some characteristics of the Indian Constitution, of 1950 pg.1
12 Sarkaria Commission Report of 1988
13 Constitutional Law of India by HM Seervai, vol I, 4TH edition of 2002 at pg. 163
the Constitution. The three lists in the Indian Constitution are broad in scope and define
the state's and the Centre's areas of influence.

(2) Written Constitution- It will be nearly impossible to retain the Constitution's

supremacy unless the terms of the Constitution are in writings.

(3) Constitutional Supremacy- Just as a corporation gets its existence from the grant by
which it is established, a federal state derives its existence from the Constitution. As a
result, every power-the parliament, the executive, or the judicial- belonging to the
nation or a single state is subordinate to and ultimately governed by the Constitution.14
In a federal state, the Constitution is indisputably the supreme law. In a federal state,
the Constitution is indisputably the supreme law.

(4) Constitutional Rigidity- A Constitution that serves as the supreme law of the land
should be rigid and not easily be amended, as this would endanger the federation's
stability and unity. The procedure for amending the Constitution should be complex,
but not impossible, because the Constitution must never be legally unchangeable.
However, it is important to note that the Indian Constitution is not as rigid as its
American counterpart.

5) Authority of the Courts- The fundamental structure of a federal state requires a

division of powers between the federal government and the states, as laid out in The
constitution. This division should be done by an independent and unbiased authority
above the ordinary authorities established by the Constitution, such as federal or state
legislatures. As a result, the judiciary interprets the federal Constitution and serves as a
watchdog over its provisions.

All of the above-mentioned necessary qualities of a federal constitution are present in

the Indian Constitution. The division of legislative authority between the federal
government and the states is the most essential feature of a federal constitution.

DIFFERENCES IN THE FEDERAL STRUCTURE OF US AND INDIA

The contrasts between the federalisms of the United States and India are distinct. The
authors of the Indian constitution deliberately created these divisions. The US
federalism is exceptionally rigid, as its founders intended in their constitution. It has a
federal rather than a unitary nature. India, on the other hand, is more unitary than
federal, and we may even call it a quasi-federal state.

The United State’s constitution is very brief and rigid, only a few pages long, whereas
India's constitution is extremely lengthy, with XXII sections, 395 articles, and ten
schedules. Because the United States constitution is so precise, the provisions for
modifying it are also extremely rigid and rigorous.

14 The Law of Constitution by AV Dicey, 10th edition at p no. 157.

Despite the fact that the United States has a Federal Constitution, all states associated
with the federal government have their own Constitutions to govern themselves. All
states associated with the Indian Union pledge their compliance to the Indian
constitution and do not have their own Constitutions; nonetheless, each state is
authorized to make its own laws, which are contained in both the state and concurrent
lists of the Constitution.
In the United States, the President is the head of state, and his government is invariably
referred to as a Presidential system of government or democracy. However, in India, the
President is only a nominal head, and the Prime Minister and his cabinet are the de facto
power holders. In the United States, the President is elected by the people rather than an
electoral college.
In US the citizens enjoy dual citizenships due to a strong and rigid Federal Government,
however in India there is a single citizenship, i.e., solely as Indians.

CONCLUSION

There are approximately 25 federal nations in the world currently, with a combined
population of 40% of the global population. The United States and India are two of the
most important federal countries in the world; the former is the oldest known
democracy, while the latter is the world's largest democratic country; both the US and
India are founded on federalism in their political structures. By establishing its
constitution in 1789, the US became a Federal Republic State, whereby India only
became a Socialist, Sovereign, Secular, and Democratic Republic by officially
launching its constitution in 1950. Both countries gained dominion status as a result of
numerous smaller states joining together to form a union with a central authority that
became to be known as the Federal Government in the United States and the Central
Government in India. As a result, both states were proclaimed to be a Federal
Republics. Original culture, politics, history and ideology determine the real working
of federation. Federalism is a tool for dealing with a wide range of
differences, pluralities and multiplicities of Nations. As a result, federal state may exist
differently for different nations per se. It all varies upon the national requirements and
the natural environment. Since each country has a unique culture, it's difficult to
analyze it using federalism specifically as yardsticks. The United State's structure can
be classified as a 'bottom up' framework, in which sovereign compared to pre states
transfer authority to form a union, while India's pattern can be classified as a 'top down'
framework, with strong unitary emphasis and provincial units operating as
'confederations' within a rather loose union.
Justice P. B. Mukherjee in his book ‘The Critical Problems of Indian
Constitution’15 enunciated; “The future of India and its Constitution will be
determined by how the country develops federalism principles and practices that are
appropriate for India, whose irreplaceable requirement must be integrity with variety,

15 Justice P.B. Mukherjee, University of Bombay The Critical Problems of Indian Constitution at Pg. 151
unity in diversity, and experience and wisdom in striking a balance among centrifugal
and centripetal powers within the territory.”
Adhering to the principles of absolute power separation between the two wings
of government is not a simple undertaking. However, Federalism is reasonable for large
countries like India and the United States, where if government formed a single center,
it would be complicated and difficult and could easily be despotic and out of touch with
the needs and desires of widely dispersed areas of the country, where particular parts
have drastic linguistic, legal, or other distinctive features that they want to protect. In
conclusion, despite some problems in interpreting the federal structure's legislative
entry exists, federalism is increasingly posing more significance as the world
is becoming more globalized and the goal to attain the "welfare state" grows.

BIBILOGRAPHY

● Constitution of India by V.N. Shukla’s 12th edition

● The Modern Constitutions by K.C Wheare
● Comparative constitutional law, by Tom Ginsburg and Rosalind Dixon
● Constitutional Law, LexisNexis by Lakshminath
● A comparitive study-World Constitution by Vandana Mohla and others
● ipleaders- Difference-us-indian-federalism
● legalservicesindia-Federalism
● Hein Online- T. Mcintyre Cooley, General Principles of Constitutional Law
in US (1880)