Module 2 Federalism
Module 2 Federalism
Module 2 Federalism
FEDERALISM
Introduction
The word ‘federation’ has been derived from the Latin word ‘foedus’ which means treaty,
contract or compact. Thus, a federal state is seen as a compact or association of
states/provinces due to an agreement or treaty. It is an arrangement by which many relatively
autonomous parts come together to make a whole.
A state can be classified as federal or unitary based on the division of powers or absence of
division of powers, between the national and provincial governments. In a federal system, the
constitution formally divides the powers between the centre/national and states/provinces,
whereas in a unitary system, power is concentrated in the central/national government,
though it may devolve certain powers to the local governments. Federalism is an essential
concept of comparative politics.
Characteristics of Federalism
When many provinces are close and have common things, they may have problems.
These problems can be of four types: between two provinces, among many provinces,
one province and the country, and provinces and the country.
In such a situation, the dispute settlement mechanism plays a pivotal role in sustaining
and strengthening federalism. In Canada, India and the USA, the Supreme Court
plays this role.
6. Bicameral Legislature:
The bicameral legislature is another defining feature of a federal state. The two
chambers of the national legislature are named differently in different states.
For instance, they are called the Chamber of Deputies and the Federal Senate in
Brazil, the House of Representative and Senate in the USA, and Lok Sabha and Rajya
Sabha in India.
The people directly elect the first chamber or the lower house. In federal states, the
upper house necessarily represents the provinces. However, the election process of the
second chamber or the upper house varies from country to country.
A. FEDERALISM IN INDIA:
India adopted its constitution on 26th January 1950. Although the Indian Constitution
states that ―India that is Bharat shall be a union of states. (Article 1) and nowhere
mentions the word ‗federation‘ or ‘federalism’ Dr. B. R. Ambedkar asserted in 1948 that
the ―Draft Constitution could be both unitary as well as federal according to the
requirements of time and circumstances. In normal times, it is framed to work as a federal
system. However, in times of war, it is designed to make it work as a unitary system.
(quoted in Tillin 2019). The following characteristics of federalism can be identified in
the Indian constitution:
1. Division of Powers:
The scheme of division of powers in the Indian federation is presented in the Seventh
Schedule of the Constitution of India. The constitution has three lists for dividing the
powers between the centre and states, Union, State and Concurrent lists.
Article 246 of Indian constitution distributes legislative power between union and
states. It gives union exclusive power to legislate in respect of matters contained in
list 1 and concurrent power to legislate in respect of matters contained in list 3 of
schedule 7 of the constitution.
The Union list has 97 subjects over which the central government has exclusive
jurisdiction. The State list has 61 subjects. The Concurrent list initially had 47
subjects over which both the central and state can legislate. 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 which are Education Forests,
Weights & Measures, Protection of Wild Animals and Birds, Administration of
Justice.
As in most constitutions, when there is a conflict between central and state
governments ‘laws, the centre’s law prevails over the state laws. The residual powers
rest with the Centre.
Article 249 of Indian constitution gives power to parliament with respect to matter
in the state list in the national interest.
Article 352 and 353 states about provisions for the proclamation of emergency and
the effect of such proclamation.
There are provisions included in the constitution which are to be operative unless
parliament made any contrary provision or word to the same effect.
Article 368 of Indian constitution states about provisions regarding the amendment
of the constitution.
2. Dual Government:
In India, a central government and state governments exist, each having its political
institutions and processes. They have a separate legislature, executive, and judiciary.
The President is the head of the Union of India, while the Governor is the
constitutional head of state. If the Supreme Court is India‘s highest judiciary, the High
courts are the state‘s highest judiciary. Establishing a distinct set of political
institutions for central and state governments has resulted in establishing two tiers of
government in Indian Federation.
Article 368 Power of Parliament to amend the Constitution and procedure therefor
5. Bicameral Legislature:
Indian legislature known as Parliament is bicameral. The two chambers are Rajya
Sabha, the upper chamber and Lok Sabha, the lower chamber. In a bicameral
legislature, the Lok Sabha (People‘s Council) represents the people across the
country. In contrast, the Rajya Sabha (Council of States) represents the states in the
national legislature. Contrary to the Lok Sabha, whose members are directly elected
by the people, the members of the Rajya Sabha are elected by the state legislatures.
The President nominates twelve members to Rajya Sabha for their contributions
towards arts, literature, sciences, and social services.
6. Single Citizenship
Another thing which is against the pure form of federalism is there is concept of
single citizenship in India.
Case laws:
1. State of Rajasthan v Union of India, 1977
In State of Rajasthan v Union of India, 1977 former chief justice Beg, called the
constitution of India as “amphibian” he further stated that if our constitution
creates a central government which is amphibian in the sense that it can be either
federal or unitary according to the need of the situation and the circumstance of the
case.
2. The second characteristic is highlighted by the court is that the states have no
power to alter the constitution but only central government has the power to
alter the constitution of India.
The learned judges finally concluded that the structure of India as provided by the
constitution is centralized, with the states occupying a secondary position vis-à-vis
the Centre.
B. FEDERALISM IN CANADA:
The British North America Act, 1867, passed by the British Parliament, established a
Dominion of Canada as a self-governing part of the British Empire. It introduced
federalism in Canada by bringing together the Provinces of Upper and Lower Canada,
Nova Scotia, and New Brunswick together in one federal union. Other provinces joined
the Dominion later. TheCanadian federation comprises four regions: Ontario, Western
Provinces, Quebec, and the Maritime Provinces. In addition to regions, North-west
territories and Yukonare also parts of Canadian federalism.
2. Bicameral Legislature:
Canada‘s federal legislature called Parliament is bicameral. It consists of the Queen
and two chambers, namely the Senate (the upper chamber) and the House of
Commons (the lower chamber).
The Senate represents the provinces. Initially, the Senate had 71 members. However,
presently it has 104 members. The membership can be expanded up to 118. Out of
104, four regions of the Canadian federation, namely Ontario, Western Provinces,
Quebec and the Maritime Provinces, send twenty-four representatives each to the
Senate (Kapur and Mishra 2018: 441). Two Senators represent each of the North-west
Territories and Yukon. As per the Constitution of 1867, the House of Commons was a
181 membered chamber. Nevertheless, now the membership of the house has been
extended up to 282.
3. Division of Powers:
There is an explicit system of division of power in Canada. The Constitution Act,
1867, is the primary source of the division of powers in the Canadian federation.
Under sections 91 and 92(10) of the Constitution, the federal government has the
power to make laws on items of national ‘ interest such as national defence, foreign
affairs, employment insurance, banking, federal taxes, the post offices, fisheries,
shipping, railways, telephones and pipelines, Indigenous lands and rights, and
criminal law.
Under sections 91 and 92(10) of the Constitution, the federal government has the
power to make laws on items of national ‘ interest such as national defence, foreign
affairs, employment insurance, banking, federal taxes, the post offices, fisheries,
shipping, railways, telephones and pipelines, Indigenous lands and rights, and
criminal law.
Under sections 91 and 92(10) of the Constitution, the federal government has the
power to make laws on items of national ‘ interest such as national defence, foreign
affairs, employment insurance, banking, federal taxes, the post offices, fisheries,
shipping, railways, telephones and pipelines, Indigenous lands and rights, and
criminal law.
The residual powers rest with the federal Parliament. It implies that powers not listed
in the province list will go to the federal Parliament.
4. Dispute Settlement Mechanism:
Before 1949, the power to interpret the Constitution was vested with the Judicial
Committee of the Privy Council. Since then, the interpretive power has been handed
over to the Supreme Court of Canada.
The Supreme Court seems to favour the strong federal government.
Case laws:
Hodge v The Queen (1883):
This case established that provincial governments have exclusive jurisdiction over
property and civil rights within their provinces, as long as they do not conflict with
federal laws. This case also recognized that provincial governments have inherent
powers to legislate for the peace, order, and good government of their provinces.
C. FEDERALISM IN AUSTRALIA
Australian federalism came into existence on 1st January 1901, with six British colonies
as its constituents. In Australian federalism, the province is called ‘state’, while the
national government is known as the ‘Commonwealth of Australia’. Following are the
noticeable features of Australian federalism:
3. Bicameral Legislature:
Australian Parliament is made of the Crown and two chambers, namely, the Senate
and the House of Representatives. The Senate is made of 76 senators, while the House
of Representatives has 151 members.
The states are represented in the Senate. For representation in the Senate, the principle
of equality is followed. Each state, irrespective of its population and territory size, has
been allotted equal twelve seats in the Senate.
The mainland territories- the Australian Capital Territory and the Northern Territory-
send two senators each. Of the twelve members elected from every state through the
proportional representation system for six years. The 151 members of the House of
Representatives are elected for three years terms by the preferential voting system.
4. Dispute Settlement Mechanism:
In the Australian federal system, the Courts and inter-governmental bodies play
significant roles in resolving disputes between the states and national government or
between states.
The High Court is the highest court in Australia. It has played an essential role in
sustaining federalism for over a century.
According to Section 77 of the Australian Constitution, the final court of appeal is in
dispute between federal and state jurisdiction. It has the authority to interpret the
Constitution.
Case laws:
The Engineers Case (1920):
This case established that the federal government has exclusive jurisdiction over
matters that are expressly granted to it by the Constitution, and that there are no
implied limitations or immunities that protect the provincial governments from federal
laws. This case also recognized that the federal government has inherent powers to
legislate for the peace, order, and good government of Australia.
4. Bicameral Legislature:
Article I Section 3: Clause 1 Composition
The Senate of the United States shall be composed of two Senators from each State,
chosen by the Legislature thereof, for six Years; and each Senator shall have one
Vote.
A bicameral legislature is a type of lawmaking body that has two chambers or houses.
The U.S. Constitution establishes a bicameral legislature for the federal government,
called the Congress, which consists of the Senate and the House of Representatives.
The Constitution also specifies how the members of each chamber are elected, how
long they serve, and what powers they have.
The main reason why the Framers of the Constitution chose a bicameral legislature
was to balance the interests of different groups and regions in the country. They
wanted to create a system that would prevent any one branch or level of government
from becoming too powerful or oppressive. They also wanted to ensure that the laws
passed by the Congress would reflect the will and consent of the people.
Case laws
McCulloch v Maryland (1819):
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.
1. Distribution of powers
All in all, one can, in consequence, certainly say that our Constitution, through the
distribution of powers that I have just sketched, gives the cantons a strong position.
The weaknesses of Swiss federalism spring from the widely differing size and, above
all, financial strength of the cantons. Apart from material reasons, it was mainly
financial reasons which over and over again led to the transfer of tasks from the
cantons to the confederation
"The confederation shall assume the tasks which require uniform regulation and the
Confederation shall leave the Cantons as large a space of action as possible, and shall
take their particularities into account." (Article 42,46)
The division of powers in the Swiss Constitution follows the pattern of the US
federation. The powers of the Federation and the joint powers of the Federation and
the Cantons have been laid down in the Constitution, and the residuary powers have
been left with the Cantons. (v) The federation has been given powers in respect of
subjects of national importance and the Cantons have retained powers in respect of
local and regional subjects.
The Cantons have been given equality of representation in the Upper House of the
Swiss Federal Parliament- the Senate, Each full Canton, whether big or small, sends
two representatives and each half-Canton one representative to the Senate.
This Swiss Constitution is rigid in character, though not so rigid as the American
constitution. The procedure of its amendment is rather complicated. There are two
methods of amending it.
i. Through referendum
If both the Houses of the federal Parliament agree by passing a resolution to revise the
Constitution, either, wholly or partially, they may draft such a proposal and submit it
to the vote of the people and Cantons. If a majority of the citizens voting at
Referendum and a majority of the Cantons approve of it, the amendment is made in
the Constitution. In case, only one House agrees to the proposed revision and other
does not, then the proposed revision is referred to the people’s vote to ascertain
whether the proposed revision is necessary or not. If the people approve the proposed
revision by a majority vote, Federal Assembly stands dissolved. The newly elected
assembly takes up the proposed revision. If both the Houses of the Assembly ratify it,
which is a foregone conclusion, the revision is submitted to the people and Cantons
for vote. If the majority of the people and Cantons approve of it, the revision is
effected.
A complete or partial revision of the Constitution can also be effected through popular
Initiative, on the petition of at least, one lakh Swiss citizens.
The supremacy of the Swiss constitution means that it is the highest law in the country
and that all other laws and acts of the federal, cantonal, and communal governments must
conform to it. The constitution also establishes the basic principles and values of the
Swiss political system, such as democracy, federalism, rule of law, and human rights.
Federal law shall take precedence over any conflicting provision of cantonal law.
The Cantons shall respect the rights of the Confederation and other Cantons.
The federal parliament has the power to make laws on matters that are assigned to
it by the constitution, and that these laws are binding for all the cantons and their
citizens.
The federal government and courts have the duty to ensure that the federal laws
are respected and enforced throughout the country, and that they can invalidate or
override any cantonal laws that are inconsistent with them.
The cantons have the power to make laws on matters that are not assigned to the
federal government by the constitution, and that these laws are valid within their
own territories, as long as they do not conflict with the federal laws or
constitution.
The cantons have a degree of autonomy and self-government in managing their
own affairs, and that the federal government should not interfere with their
legitimate interests or decisions, unless it is necessary to protect the national
interest or unity.
The cantons have to cooperate with each other and with the federal government in
fulfilling their constitutional obligations and duties, and that they have to respect
the rights and interests of other cantons and their citizens.
4. Dual citizenship
The Cantons have their separate constitutions. There is dual citizenship, dual
administration and a dual system of courts.
The system of double citizenship prevails in Switzerland. The Constitution states that
every citizen of a Canton shall be a citizen of Switzerland. This entitles a person to enjoy
the citizenship of his Canton as well as that of the Swiss Federation.
Article 37: This article defines a Swiss citizen as someone who has the citizenship of a
Swiss municipality, a canton, and the Confederation. It also states that the Confederation
and the cantons shall regulate the acquisition and loss of Swiss citizenship by law1.
5. Independent Judiciary
The Swiss Federal Court is an independent judiciary with the power of judicial review
over the legislation passed by Cantonal legislatures.
6. Bicameral Legislature
Swiss Federal Parliaments is a bicameral body. Its two houses are: The House of
Representatives and the Senate. The former is the lower, popular, national house which
represents the people of Switzerland and the latter is the upper house which represents the
Cantons and their sovereign equality. Each full Canton two and each half Canton has one
seat in the Senate. The House of Representatives has tenure of 4 years whereas the
tenures of the members of the Senate depend upon the Cantons which they represent. In
fact the members of the upper house are not elected simultaneously. The Federal
Parliament enjoys legislative, executive, financial and judicial powers which are jointly
exercised by the two Houses. Both the Houses have equal powers in all spheres. In the
words of C.F. Strong, “The Swiss legislature like the Swiss executive is unique. It is the
only legislature in the world, the powers of whose upper house are in no way different
from those of the lower house.”
Case laws:
The Jura Case (1974-1979):
This case involved the question of whether the French-speaking region of Jura could secede
from the German-speaking canton of Bern and form a new canton. The Federal Supreme
Court ruled that the right to self-determination of the people of Jura had to be respected and
that a series of referendums had to be held to determine the will of the population. As a result,
the canton of Jura was created in 1979, after four referendums.
This case concerned the validity of a federal law that restricted the acquisition of real estate
by foreigners in Switzerland. The Federal Supreme Court upheld the law as constitutional,
based on the federal government’s power to regulate foreign relations and economic
policy. The court also rejected the argument that the law violated the principle of equality
between Swiss citizens and foreigners, or between cantons with different levels of foreign
ownership.